Gujarat High Court
Rameshbhai P Raval vs Mohammad Shahin on 7 November, 2020
Author: Sonia Gokani
Bench: Sonia Gokani, Nirzar S. Desai
C/MCA/440/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 440 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 17245 of 2016
With
R/MISC. CIVIL APPLICATION NO. 447 of 2019
With
R/MISC. CIVIL APPLICATION NO. 448 of 2019
In
SPECIAL CIVIL APPLICATION NO. 18114 of 2016
With
R/MISC. CIVIL APPLICATION NO. 496 of 2019
In
LETTERS PATENT APPEAL NO. 1812 of 2017
With
R/MISC. CIVIL APPLICATION NO. 508 of 2019
In
LETTERS PATENT APPEAL NO. 1816 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as to
the interpretation of the Constitution of India or any order made
thereunder ?
==========================================================
PATEL VISHNUBHAI DULABHAI
Versus
MOHAMMAD SAHID
==========================================================
Appearance:
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C/MCA/440/2019 JUDGMENT
MR KB PUJARA(680) for the Applicant(s) No.
1,10,100,101,102,103,104,105,106,107,108,109,11,110,111,112,113,114,115
,116,117,118,119,12,120,121,122,123,124,125,126,127,128,129,13,130,131,
132,133,134,135,136,137,138,139,14,140,141,142,143,144,145,146,147,148,
149,15,150,151,152,153,154,155,156,157,158,159,16,160,161,162,163,164,1
65,166,167,168,169,17,170,171,172,173,174,175,176,18,19,2,20,21,22,23,24
,25,26,27,28,29,3,30,31,32,33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,4
8,49,5,50,51,52,53,54,55,56,57,58,59,6,60,61,62,63,64,65,66,67,68,69,7,70,7
1,72,73,74,75,76,77,78,79,8,80,81,82,83,84,85,86,87,88,89,9,90,91,92,93,94,
95,96,97,98,99
MS MANISHA LAVKUMAR SHAH,GOVERNMENT PLEADER with MS MD
MEHTA, AGP for the Opponent(s) No. 1
NOTICE SERVED(4) for the Opponent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 07/11/2020
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. This group of petitions are preferred invoking the powers of this Court under Article 215 of the Constitution of India and under the provisions of the Contempt of Courts Act.
2. The background, under which this group of petitions arise, is as follows:-
2.1. This Court on different occasions passed various orders. It would be apt and profitable to refer to those orders emphasizing the need of the Page 2 of 27 Downloaded on : Sat Feb 27 21:05:09 IST 2021 C/MCA/440/2019 JUDGMENT compliance:-
2.2. On 30.4.2019 this Court issued notice to the respondents.
2.3. On 24.06.2019 the Court the following order came to be passed:
"Oral common judgment dated 19.07.2018 passed in Letters Patent Appeal No.907 of 2016 and allied matters contain following order and direction:"30In the light of the above discussion,Special Civil Applications No.17245 of2016, 17275 of 2016 and 18114 of 2016 are hereby allowed. The impugned communication dated 29.9.2014 as well as the circular dated 20.1.2015 are here by quashed and set aside. The respondents are hereby directed to give the bene3fitof 15% NPPA on revised pay under Sixth Pay Commission and Seventh Pay Commission. The payment of NonPrivate Practicing Allowance (NPPA) to the petitioners shall be restored and their pay scale/pension shall be refixed and paid accordingly. The recovery of the amount towards NPPA is quashed and set aside, and any amount which is recovered from some of the petitioners shall be refunded. The entire exercise of refixing the pay/pension and payment of difference of such amount shall be carried out within a period of four weeks from the date of receipt of a coy of the judgment. Rule is made absolute accordingly in each of the petitions, with no order as to costs." Since directions, as above, remained not complied with, these applicators are preferred under the provisions of The Contempt of Courts Act, 1971 in which notice was issued as early ason 30.04.2019. As per the information of learned Assistant Page 3 of 27 Downloaded on : Sat Feb 27 21:05:09 IST 2021 C/MCA/440/2019 JUDGMENT Government Pleader, the above order dated19.07.2018 passed by the Division Bench is to be challenged before the Apex Court. Be that as it may, if the directions are not complied with by the next date of hearing, appropriate order will be passed, whereby this Court may think over to award interest @6% p.a.on the amount due to the applicants. Stand over to 22.07.2019. "
2.4. On 24.08.2020, this Court passed the following order:
" The captioned group of Miscellaneous Civil Applications arises under the Contempt of Court's Act 1971.2.On 17.8.2020we passed the following common order."In this application, the applicants have invoked jurisdiction of this Court under the Contempt of Courts Act seeking to enforce the directions in order dated 19th July, 2018 passed in Letters Patent Appeal No.907 of 2016 and allied appeals. 2. After issuance of notice by the Court which was as back as on 05th August, 2019, it was observed by the Court (Coram: Honourable the Acting Chief Justice Anant S. Dave (as he then was) and Hon'ble Mr.Justice Biren Vaishnav) that no further time shall be granted for compliance of the order of the learned Single Judge. The aforesaid Letters Patent Appeals' order confirms the order of the learned Single Judge. 3. Supine apathy on part of the respondents in not complying with the order of this Court could hardly be countenanced. In that view, we direct respondent Nos.1 and 2 namely Secretary, Animal Husbandry and Director, Animal Husbandry, Gujarat State, shall remain personally remain present before this Court through video conference on the next date of hearing. Stand over to 24th August, 2020.Page 4 of 27 Downloaded on : Sat Feb 27 21:05:09 IST 2021
C/MCA/440/2019 JUDGMENT Learned Assistant Government Pleader shall communicate the order."3.Pursuant to the above order today, one Ms. Falguni Thakar holding the post of Director, Animal Husbandry, Gujarat State as well as Mr. Nalin Upadhyay, holding the post of Secretary, Animal Husbandry, have remained personally present before the court through the Video Conferencing. It was stated by learned Assistant Government Pleader Ms. Tripathi that the State has approached the Apex Court in respect of the orders sought to be implemented and the Special Leave Petition is registered with diary No. 17681 of 2020.
4.While we take note of the above aspect, we also find it necessary to reiterate that the orders sought to be complied with is of 19.7.2018. Two years have passed. Learned advocates for the applicants submitted that some of the similarly situated employees have also been given the benefits, the present applicants are however deprived of and kept out of the benefits. 5.Since the authorities have approached the Apex Court, we accede to the request to grant further time to enable them to obtain the appropriate orders from the Supreme Court. The matters are ordered to be posted on 7.9.2020 within which time the authorities shall obtain necessary orders from the Apex Court.6.It was stated by learned Assistant Government Pleader that if the authorities are unable to get the orders from the Supreme Court before the next date, they would may comply with the directions of the Court's order sought to be implemented and such compliance shall be subject to the final outcome of the appeal before the Supreme Court. 7.Stand over to 7.9.2020. "
2.5. On 10.09.2020, this Court passed the following Page 5 of 27 Downloaded on : Sat Feb 27 21:05:09 IST 2021 C/MCA/440/2019 JUDGMENT order:
"In the above Misc. Civil Applications arising under the Contempt of Court's Act, 1971, we had an occasion to pass the following order on 24.8.2020,"The captioned Miscellaneous Civil Applications arise under the contempt of Court's Act 1971.On 17.8.2020 we had an occasion to pass the following common order."In this application, the applicants have invoked jurisdiction of this Court under the Contempt of Courts Act seeking to enforce the directions in order dated 19th July, 2018 passed in Letters Patent Appeal No.907 of 2016 and allied appeals.
2. After issuance of notice by the Court which was as back as on 05th August, 2019, it was observed by the Court (Coram: Honourable the Acting Chief Justice Anant S. Dave (as he then was) and Hon'bleMr.Justice BirenVaishnav) that no further time shall be granted for compliance of the order of the learned Single Judge. The aforesaid Letters Patent Appeals' order confirms the order of the learned Single Judge. 3. Supine apathy on part of the respondents in not complying with the order of this Court could hardly be countenanced. In that view, we direct respondent Nos.1 and 2 namely Secretary, Animal Husbandry and Director, Animal Husbandry, Gujarat State, shall remain personally remain present before this Court through video conference on the next date of hearing. Stand over to 24th August, 2020. Learned Assistant Government Pleader shall communicate the order."
3.Pursuant to the above order and in compliance of the directions, Ms. Falguni Thakkar holding the post of Director, Animal Husbandry, Gujarat State as well as the Secretary of the Animal Husbandry Mr. Nalin Upadhyay has joined the Court proceedings through the Video Conferencing. They through their learned Assistant Government Pleader submitted to the Court that the State has approached the Apex Court seeking to challenge the orders sought to be Page 6 of 27 Downloaded on : Sat Feb 27 21:05:09 IST 2021 C/MCA/440/2019 JUDGMENT implemented and the diary number of Special Leave Petition is No.17681 of 2020.
4.While we take note of the above aspect, we also find it necessary to reiterate that the orders sought to be complied with is of 19.7.2018. Two years have passed. Learned advocates for the applicants submitted that some of the similarly situated employees have been rather given the benefit also, however, the present applicants are deprived of.
5.Since the authorities have approached the Apex Court, we accede to that request and grant further time to enable them to obtain the appropriate orders from the Supreme Court. The matters are ordered to be posted on 7.9.2020 within which time the authorities shall obtain necessary orders from the Apex Court.
6.If the authorities are unable to get the orders from the Supreme Court before the next date, they shall comply with the directions of the Court's order sought to be implemented subject to the final outcome of the appeal before the Supreme Court.
7.Stand over to 7.9.2020."2.When the matter came up today for consideration, learned advocate for the applicants stated that against the order brought under contempt, Special Leave Petitions were preferred before the Apex Court, however, they have been dismissed.2.1In this view, the only thing left is the compliance of the judgment and order.3.In this regard, learned Assistant Government Pleader on the basis of communication dated 9.9.2020 received by her from the office of Director of Animal Husbandry, Gandhinagar, Gujarat, stated that "procedure of compliance of Hon'ble High Court's oral order dated 24.8.2020in these five contempt petitions has been initiated".
4.Since the compliance of the orders is underway,we grant time for two weeks to the respondents to see to it that the orders in question under contempt are complied with and the benefits thereunder is Page 7 of 27 Downloaded on : Sat Feb 27 21:05:09 IST 2021 C/MCA/440/2019 JUDGMENT extended to the applicants-original petitioners.
5.The aforesaid communication dated 9.9.2020 received by learned Assistant Government Pleader shall be made available to respective learned advocates for the applicants. The matter to be next posted on 24.9.2020."
2.6. On 24.09.2020, this Court passed the following order:
"In the group of captioned applications filed in respect of the non-compliance of the judgment in question, time to time the orders were passed by the Court.
Respondent Nos.1 and 2 were directed to remain personally present by passing order dated 17.8.2020 who had remained present on 24.8.2020 through Video Conference and got themselves appraised of the state of non-compliance and the resultant contemptuous conduction part of the respondent in not complying with the order. They were made aware about the gravity of the conduct of the non- compliance.
2.There upon on that day on 24.8.2020 following order was passed.
"The captioned group of Miscellaneous Civil Applications arises under the Contempt of Court's Act 1971.2. On 17.8.2020 we passed the following common order. "In this application, the Page 8 of 27 Downloaded on : Sat Feb 27 21:05:09 IST 2021 C/MCA/440/2019 JUDGMENT applicants have invoked jurisdiction of this Court under the Contempt of Courts Act seeking to enforce the directions in order dated 19th July, 2018 passed in Letters Patent Appeal No.907 of 2016 and allied appeals. 2. After issuance of notice by the Court which was as back as on 05th August, 2019, it was observed by the Court (Coram: Honourable the Acting Chief Justice Anant S. Dave (as he then was) and Hon'ble Mr.Justice Biren Vaishnav) that no further time shall be granted for compliance of the order of the learned Single Judge. The aforesaid Letters Patent Appeals' order confirms the order of the learned Single Judge. 3. Supine apathy on part of the respondents in not complying with the order of this Court could hardly be countenanced. In that view, we direct respondent Nos.1 and 2 namely Secretary, Animal Husbandry and Director, Animal Husbandry, Gujarat State, shall remain personally remain present before this Court through video conference on the next date of hearing. Stand over to 24th August, 2020. Learned Assistant Government Pleader shall communicate the order."
3. Pursuant to the above order today, one Ms. Falguni Thakar holding the post of Director, Animal Husbandry, Gujarat State as well as Mr. Nalin Upadhyay, holding the post of Secretary, Animal Husbandry, have remained personally present before the court through the Video Conferencing. It Page 9 of 27 Downloaded on : Sat Feb 27 21:05:09 IST 2021 C/MCA/440/2019 JUDGMENT was stated by learned Assistant Government Pleader Ms. Tripathi that the State has approached the Apex Court in respect of the orders sought to be implemented and the Special Leave Petition is registered with diary No. 17681 of 2020.
4. While we take note of the above aspect, we also find it necessary to reiterate that the orders sought to be complied with is of 19.7.2018.
Two years have passed. Learned advocates for the applicants submitted that some of the similarly situated employees have also been given the benefits, the present applicants are however deprived of and kept out of the benefits.
5. Since the authorities have approached the Apex Court, we accede to the request to grant further time to enable them to obtain the appropriate orders from the Supreme Court. The matters are ordered to be posted on 7.9.2020 within which time the authorities shall obtain necessary orders from the Apex Court.
6. It was stated by learned Assistant Government Pleader that if the authorities are unable to get the orders from the Supreme Court before the next date, they would may comply with the directions of the Court's order sought to be implemented and such compliance shall be subject to the final outcome of the appeal before the Supreme Court. 7. Stand over to 7.9.2020."
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3.The matter came up for
consideration on 7.9.2020and
again on 10.9.2020. The order
passed on 10.9.2020 was as
under,"In the above Misc. Civil Applications arising under the Contempt of Court's Act, 1971, we had an occasion to pass the following order on 24.8.2020, "The captioned Miscellaneous Civil Applications arise under the contempt of Court's Act 1971. 2. On 17.8.2020 we had an occasion to pass the following common order. "In this application, the applicants have invoked jurisdiction of this Court under the Contempt of Courts Act seeking to enforce the directions in order dated 19th July, 2018 passed in Letters Patent Appeal No.907 of 2016 and allied appeals.
2. After issuance of notice by the Court which was as back as on 05th August, 2019, it was observed by the Court (Coram: Honourable the Acting Chief Justice Anant S. Dave (as he then was) and Hon'bleMr. Justice BirenVaishnav) that no further time shall be granted for compliance of the order of the learned Single Judge. The aforesaid Letters Patent Appeals' order confirms the order of the learned Single Judge.
3. Supine apathy on part of the respondents in not complying with the order of this Court could hardly be countenanced. In that view, we direct respondent Nos.1 and 2 namely Secretary, Animal Page 11 of 27 Downloaded on : Sat Feb 27 21:05:09 IST 2021 C/MCA/440/2019 JUDGMENT Husbandry and Director, Animal Husbandry, Gujarat State, shall remain personally remain present beforethis Court through video conference on the next date of hearing. Stand over to 24th August, 2020. Learned Assistant Government Pleader shall communicate the order."
3. Pursuant to the above order and in compliance of the directions, Ms. Falguni Thakkar holding the post of Director, Animal Husbandry, Gujarat State as well as the Secretary of the Animal Husbandry Mr. NalinUpadhyay has joined the Court proceedings through the Video Conferencing.
They through their learned Assistant Government Pleader submitted to the Court that the State has approached the Apex Court seeking to challenge the orders sought to be implemented and the diary number of Special Leave Petition is No.17681 of 2020.
4. While we take note of the above aspect, we also find it necessary to reiterate that the orders sought to be complied with is of 19.7.2018.
Two years have passed. Learned advocates for the applicants submitted that some of the similarly situated employees have been rather given the benefit also, however, the present applicants are deprived of.
5. Since the authorities have approached the Apex Court, we accede to that request and grant further time to enable them to Page 12 of 27 Downloaded on : Sat Feb 27 21:05:09 IST 2021 C/MCA/440/2019 JUDGMENT obtain the appropriate orders from the Supreme Court. The matters are ordered to be posted on 7.9.2020 within which time the authorities shall obtain necessary orders from the Apex Court.
6. If the authorities are unable to get the orders from the Supreme Court before the next date, they shall comply with the directions of the Court's order sought to be implemented subject to the final outcome of the appeal before the Supreme Court.
7. Stand over to 7.9.2020."
2. When the matter came up today for consideration, learned advocate for the applicants stated that against the order brought under contempt, Special Leave Petitions were preferred before the Apex Court, however, they have been dismissed. 2.1 In this view, the only thing left is the compliance of the judgment and order. 3. In this regard, learned Assistant Government Pleader on the basis of communication dated 9.9.2020 received by her from the office of Director of Animal Husbandry, Gandhinagar, Gujarat, stated that "procedure of compliance of Hon'ble High Court's oral order dated 24.8.2020 in these five contempt petitions has been initiated". 4. Since the compliance of the orders is underway, we grant time for two weeks to the respondents to see to it that the orders in question under contempt are complied with and the benefits Page 13 of 27 Downloaded on : Sat Feb 27 21:05:09 IST 2021 C/MCA/440/2019 JUDGMENT thereunder is extended to the applicants-original petitioners. 5.
The aforesaid communication dated 9.9.2020 received by learned Assistant Government Pleader shall be made available to respective learned advocates for the applicants. The matter to be next posted on 24.9.2020."4.When the matter comes up for consideration today, there is no improvement in the situation. On the contrary learned Assistant Government Pleader Mr. Hardik Mehta showed audacity to seek further time for non-compliance which was on the untenable ground that the amount is huge.In the matters of contempt when the orders are to be complied with, the hugeness or smallness of the amount hardly matters. The Government machinery hasto move to orient itself towards definite compliance of the orders of the Court. In the present case, despite long passage of time under one pretext or another orders are avoided to be complied with. While we do not countenance the conduct, we notice from the earlier order dated 24.6.2019 passed by the Division Bench (Coram:
Hon'ble Mr. Justice Anant S. Dave (as the then was) and Hon'ble Mr. Justice Biren Vaishnav) as early on that day theCourt observed that if the directions are not complied withby the next date of hearing, the Court may think over award with interest on the amount due to the applicants.
5.In view of the above situation arising, we are not inclined to Page 14 of 27 Downloaded on : Sat Feb 27 21:05:09 IST 2021 C/MCA/440/2019 JUDGMENT grant any further time to the respondent authorities to comply with the orders and to pay the amount to the applicants except upto 9.10.2020. We provide that if the complianceis not made and the amount due to the applicant is not paid by the next date,that is 9.10.2020, the payment made to the applicant shall carry the interest at the rate of 6% as observed in order dated 24.6.2019.
The question of imposition of cost to be imposed on the respondents,is kept open. Stand over to 9.10.2020."
2.7. On 26.10.2020, this Court passed the following order:
"This group of petitions today are posted for pronouncement of the judgment. Before such pronouncement, we deemed it appropriate to avail the last opportunity to the State to make a commitment as to how disbursement of monetary benefits which need to be made in favour of the total number of the applicants, shall be made by it on its own noticing the fact that the judgement and order warrant compliance for a protracted period. We also had asked in the morning session the learned Assistant Government Pleader Ms. Mehta to request learned Government Pleader Ms.Manisha Lavkumar to appear and coordinate with the State agencies. She on her appearance makes a request that all possible attempts shall be made to strike a balance while seeking instructions and streamlining the issue for which she requires three days' time.2.At her request, pronouncement is Page 15 of 27 Downloaded on : Sat Feb 27 21:05:09 IST 2021 C/MCA/440/2019 JUDGMENT deferred to29.10.2020. Matters are to be kept on board on29.10.2020."
3. On 29.10.2020, Ms. Manisha Lavkumar Shah, learned Government Pleader for the respondent-
State has urged that she could persuade the State to ensure its commitment, as, according to her, the total amount runs into more than 26 crores and the present day scenario makes it difficult for the State to make the payment at one go. However, noticing the fact that the judgement has been finally delivered by the Apex Court, she could persuade the concerned authorities, which has agreed to disburse of the amount in installments and such installments shall be paid from the month of December, 2020 and the entire amount shall be disbursed in total compliance of the Court's direction by March, 2021.
3.1. She has further urged that noticing in the present pandemic the market situation, as also considering the condition of the economy of the country and the entire world and limited revenue generation and the pressing need of the State for investing more Page 16 of 27 Downloaded on : Sat Feb 27 21:05:09 IST 2021 C/MCA/440/2019 JUDGMENT and more for the health of the people, the Court may consider the request of the State and permit such staggered manner of payment.
3.2. She has further urged that any difficulties, which have been caused to the applicants, on account of non-compliance, was never intentional, and therefore, before the Court, it makes an unconditional apology.
4. This has been resisted strongly by the learned advocates for the applicants. Mr. Pujara, learned advocate for the applicants, who has urged that this is nothing but an eye-wash. According to him, the Court needs to seriously view the act of the State, which had an audacity to take the amount from the retiral benefits. It had also gone to the extent of stopping the retiral benefits by forcefully obtaining an undertaking from each employee, taking voluntary act on their part not to insist for Non-
Practicing Allowance. He has also urged further that sum of Rs.26 crores is not a big sum for the State Page 17 of 27 Downloaded on : Sat Feb 27 21:05:09 IST 2021 C/MCA/440/2019 JUDGMENT and if it is not in a position to abide by the commitment of such meager payment, as directed by not only this Court, but by the Apex Court also, the Government should resign. It is further his say that each one, who was responsible for making payment, must be held severely liable and this is a fit case where not only the amount to be directed to be disbursed, but the same should be with interest and cost to the individual applicant, but also with strictest punishment to the concerned officer. He has demonstrated as to how the State was unwilling to abide by the directions of the Courts and went on dilly-dallying the entire issue. He emphasized on supine apathy of the State.
4.1. Mr. Gaurav Mehta, learned advocate appearing with learned advocate Mr. N.K. Majmudar for the applicants have made apparently the submissions along the line of what has been argued by learned advocate Mr. Pujara for the applicants. They not only have supported his submissions, but also have urged this Court to take a stricter view in a matter Page 18 of 27 Downloaded on : Sat Feb 27 21:05:09 IST 2021 C/MCA/440/2019 JUDGMENT like this.
5. In rejoinder, Ms. Mehta, learned Government Pleader appearing for the State has urged the Court to keep the larger picture in view, while deciding this matter, more particularly, in post Covid-19 world.
6. Having thus heard learned advocates on both the sides and also bearing in mind the chronology of events, as indicated by us in our earlier orders, there was an imminent need for the State to act, more particularly, after the matter had travelled to the Apex Court and where it chose not to entertain.
There was nothing to hold the State back in making the payment. It is to be remembered that this had not happened in the month of March,2020 when lockdown began in the last week but, two years prior to the Pandemic. Undoubtedly, the amount of all the applicants, when calculated, becomes a large sum and that can hardly be the reasons for the State not to abide by the directions of this Court Page 19 of 27 Downloaded on : Sat Feb 27 21:05:09 IST 2021 C/MCA/440/2019 JUDGMENT and be the judge in its own cause. It has exhausted all legal means in case of every individual employee to challenge the legality and validity of the judgement and order and when it failed to bring any order in its favour, it was aware of the need to fulfill the obligations imposed by the Court of law.
The grievance made on the part of retiring employees of not availing any benefits to them unless, they tender the undertaking of refunding the amount and not claim any amount towards NPPA is also an additional sore point understandably and wholly unacceptable proposition.We would reserve our rights to deal with that on a serious note, if the directions today being issued are not complied with.
7. In fact, the substantial sum needed to be paid collectively to these applicants and others cannot be a justifiable ground much less a reason to be countenanced for not abiding the directions and the order of this court and of the Apex court, even without approaching this court and seeking any respite by putting forth any valid ground.
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8. The law of Contempt of courts is for keeping the administration of justice pure and unpolluted, where the dignity of the Court is to be maintained at all costs. Being conscious of the fact that the contempt jurisdiction is a special jurisdiction and to be exercised as a Court executing the decree, this Court is presently dealing with the civil contempt, which would mean willful disobedience to any judgement, decree, their actions, writ or order or other process of the Court or willful breach of an undertaking given to the Court, as defined under section 2(b) of the said Act.
8.1. Any willful disobedience to the order of the Court or doing of an act or abstaining from doing of an act or any breach of undertaking to the Court is a contempt.
8.2. Section 12 of the Contempt of Courts Act provides for punishment. The Apex Court in the case of Prithwi Nath Ram vs. State of Jarkhand, AIR 2004 SC 4277, held that while dealing with the Page 21 of 27 Downloaded on : Sat Feb 27 21:05:09 IST 2021 C/MCA/440/2019 JUDGMENT application for contempt of Court, the Contempt Bench cannot travel beyond that Judgement and order. It cannot test correctness or otherwise of the order or give additional direction or delete any direction, as that would amount to exercising the review jurisdiction. Any application for initiation of contempt proceedings or for any breach of an undertaking or any other breach in civil proceedings amounts to contempt and it is, of course, the discretion of the Court whether to commit the contemnor to prison or to accept the apology.
Section 13 of the Contempt of Courts Act provides that the contempt is not punishable unless the Court is satisfied that contempt is of such nature that it substantially interferes or tends to interfere with the due course of justice. The Court also permitted in any proceedings for contempt of Court, justification by truth as a valid the defence, if it is satisfied that it is in the public interest and the request for invoking the said defence is bona fide.
8.3. In number of decisions the Court has held that Page 22 of 27 Downloaded on : Sat Feb 27 21:05:09 IST 2021 C/MCA/440/2019 JUDGMENT technical contempts are to be ignored and no punishment for contemptuous conduct is postulated under these provisions and unless the Court is satisfied that the contempt is of such a nature that the act of the same substantially interferes with the due course of justice, the question of punishment cannot arise.
9. Even while being conscious of the fact that the obligation on the part of the State had arisen prior to the beginning of the pandemic due to Covid-19 virus, we are also aware of the modus adopted by the State in case of the retiring employee of taking an undertaking, which we surely do not find desirable and disapprove such conduct, which is undesirable and unwarranted in the case of the State, which is supposed to be a model employer.
10. Having said that, the Court cannot overlook the ground realities in post March, 2020 period, which not only had made the world to witness and face the unprecedented events of the life where unfailingly, protecting the life becomes the top priority of the Page 23 of 27 Downloaded on : Sat Feb 27 21:05:09 IST 2021 C/MCA/440/2019 JUDGMENT State. The world economy also has come to a grinding halt and it would need the active and substantial aid of the State in the coming days. The obligations and the commitment of the State to save and protect the lives of people shall need acknowledgment and the court also simply ignore the second spurt and wave, which has been noticed in the European countries and in the USA of the COVID -19 viruses which shall also be required to be kept in view, even at the time when virulence of the virus appear to have gone down. And, particularly,as the resources of the State are required to be judiciously diverted, we deem it appropriate to accept the request of the State to allow it to make the payment in installments rather than adjudicating on issue of contempt at this stage, by accepting the unconditional apology tendered through the learned Government Pleader that this was not meant to disrespect or deliberately disregard the judgement. The present circumstances would enable the court to avail one more Page 24 of 27 Downloaded on : Sat Feb 27 21:05:09 IST 2021 C/MCA/440/2019 JUDGMENT opportunity to the State to fulfill its obligations as ensured within a time bound period with 6% interest on the remaining outstanding amount which shall be reducing gradually and of course with cost. This is the least that can be thought if the conduct of the State is examined.
11. Noticing the long drawn period of litigation since when the obligations and commitment of the State was required to be fulfilled and recognizing the period of festivities of Diwali and the difficult period for a common man also in this Pandemic, instead of acceding to the request of first installment to be started in the month of December, 2020, We direct the first such installment to start from the month of November, 2020 itself, followed by four such installments every month, ending in the month of March,2021. Thus, the entire sum is being apportioned in five and not four installments, as requested, and these 05 installments shall be each of 20% of entire sum every month to be paid to the employees by the State.
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12. Accordingly, the following schedule is directed for scrupulously abiding by the same by the State.
12.1. Out of the total amount to be disbursed in favour of the applicants, 20% of the amount shall be paid, directly in the salary account of each employee for the month of November, 2020 on Dt. 25.1.2020.
12.2. The Second, third and the fourth installments,each of 20% of the said amount shall be paid on the 15th day of every English calendar month of the years 2020 and 2021 respectively.
12.3 The last installment of 20% of the total sum shall be paid with 6% interest calculated on the reduced amount and the cost of litigation of Rs.5000/- to each applicant shall be paid. The amount of interest shall be calculated from the date of filing of these applications till payment on reduced outstanding amount.
13. In the event of non-fulfillment of these directions, the Petitioners are given liberty to seek revival of this matter where this Court shall also adjudicate the issue of contempt at an appropriate time.
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14. While disposing of this group of applications, it is also being directed that on the last Friday of every month starting from November,2020, for continuous monitoring of fulfillment of the obligations on the part of the State, the compliance report shall be tendered by the State before the Registrar(Judicial) and if any breach is noticed on the part of the learned Registrar, he shall also be at liberty to bring the same to the knowledge of the court for consequential order.
(SONIA GOKANI, J) (NIRZAR S. DESAI,J) MISHRA AMIT V. Page 27 of 27 Downloaded on : Sat Feb 27 21:05:09 IST 2021