Himachal Pradesh High Court
Sh.Uma Dutt vs Shri Srikant Baldi & Others on 9 December, 2015
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA COPC No. 753, 623 and 783 of 2015 .
Judgment reserved on: 2.12.2015.
Decided on: December 9, 2015
1. COPC No. 753 of 2015 Sh.Uma Dutt ...Petitioner of Versus Shri Srikant Baldi & others ...Respondents
2. COPC No. 623 of 2015 rt Sh. Darwari Lal ...Petitioner Versus Mr.Hari Pal Singh ...Respondent
3. COPC No. 783 of 2015 Sh. Rakesh Kumar ...Petitioner Versus Shri R.K. Kanwar & another ...Respondents Coram The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner(s) : Mr.A.K. Gupta, Advocate.
For the Respondents: Mr.Shrawan Dogra, Advocate General with Mr.Anup Rattan, Mr.Romesh Verma, Additional Advocate Generals and Mr.J.K. Verma, Deputy Advocate General.
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Tarlok Singh Chauhan J, Since common question of law and fact arise for consideration, all these petitions were taken together for hearing and disposal. Contempt Petition No. 783 of 2015 is Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
::: Downloaded on - 15/04/2017 19:27:36 :::HCHP 2taken as lead case, since the initial directions have been passed in this petition, which were subsequently followed .
and has given rise to the other two contempt petitions, being Contempt Petition Nos. 753 and 623 of 2015.
2. The question which arises for determination is of as to whether the respondents by abolishing the work-
charged establishments for Class-III employees on 19.6.2001 rt and Class-IV on 12.12.2005 in I&PH Department can be said to have violated the orders passed by this Court in Rakesh Kumar's case on 28.7.2010 and thereby made themselves liable to be prosecuted and punished under the Contempt of Courts Act?
3. In order to adjudicate this issue, it would be relevant to note that a scheme of regularization as framed by the State, with certain modification was duly approved by the Hon'ble Supreme Court in Mool Raj Upadhyaya Vs. State of H.P. and others 1994 Supp. (2) SCC 316 and in terms thereof directions have been issued to the government to grant work-charged status w.e.f. 1.1.1994 to the daily waged workmen, who had completed 10 years service up to 31.12.1993 and those who had yet not completed the said span of service be granted the work-charged status from the dates when they completed the said period and it was ::: Downloaded on - 15/04/2017 19:27:36 :::HCHP 3 further directed that thereafter their services be regularized subject to availability of vacancies.
.
4. The State Government later on reduced the period of 10 years to 9 years and thereafter vide notification dated 6.5.2000, this period was further curtailed to 8 years.
of Meaning thereby that the daily waged workmen on completion of 8 years of service were entitled for being rt conferred with the work-charges status. This policy came up for consideration in CWP No. 2735 of 2008 in case titled as Rakesh Kumar & others Vs. State of Himachal Pradesh and this Court held the petitioner Rakesh Kumar and other to be entitled to the conferment of work-charged status.
5. The non-compliance of the directions has given rise to Contempt Petition No. 783, whereas the other two Contempt Petitions are the fall out of the directions passed in Rakesh Kumar's case.
6. Consequent upon the orders having been passed in Rakesh Kumar's case (supra), a number of workmen approached this Court for conferment of similar status and were duly granted the same. This lead to filing of Special Leave Petition in Rakesh Kumar's case before the Hon'ble Supreme Court, however, the same was dismissed on 15.1.2015.
::: Downloaded on - 15/04/2017 19:27:36 :::HCHP 47. The petitioners have preferred these contempt petitions on the ground that instead of complying with the .
directions dated 28.7.2010, the respondents have now manufactured a new story in order to defeat the legitimate claim of the petitioners by claiming that the work charge of status stands abolished in the year 2001, which stand is contrary to the judgment passed by this Court. It is further rt averred that the respondents could not have abolished the work charge status without the leave of the Hon'ble Supreme Court.
8. The respondents have filed their reply, wherein they at the outset have tendered their unqualified and unconditional apology. On merits, it is averred that the work charge establishment in the I&PH Department ceased to exist on 19.6.2001 for Class-3 and on 12.12.2005 for Class-4 and this Court while passing the judgment has categorically held that there would be no question of granting work charged status, if the work charge establishments ceased to exist. It is further averred that the petitioner was engaged on daily waged basis during 10/1994 and did not complete 8 years service on 19.6.2001 being Class-3 employee and was, therefore, not entitled for grant of work charged status.
We have heard the learned counsel for the parties and have gone through the records of the case.
::: Downloaded on - 15/04/2017 19:27:36 :::HCHP 59. While it is duty of the Court to punish a person who tries to obstruct the course of justice or brings to .
disrepute the institution of judiciary. However, this power has to be exercised not casually or lightly, but with great care and circumspection. Contempt proceedings serve a dual of purpose of vindication of the public interest by punishment of the contumacious conduct and coercion to compel the rt contemner to do what the law requires of him.
10. A question whether there is contempt of Court or not is a serious one. The Court is both the accuser as well as the judge of the accusation. It behoves the Court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising from inveterate practices in Courts and tribunals. It is only when a clear case of contumacious conduct not explainable otherwise, arises that the contemnor must be punished.
Punishment under the law of Contempt is called for when the lapse is deliberate and in disregard of one's duty and in defiance of authority.
11. While dealing with the contempt petitions, the Courts are not required to travel beyond the four corners of order, which is alleged to have been disobeyed or disregarded deliberately and willfully. In this connection, it shall be apposite to make a fruitful recapitulation of a ::: Downloaded on - 15/04/2017 19:27:36 :::HCHP 6 recent judgment of the Hon'ble Supreme Court in Ram Kishan Vs. Tarun Bajaj and others 2014 AIR SCW 1218, .
wherein it was held that:-
"9. Contempt jurisdiction conferred onto the law courts power to punish an offender for his willful disobedience/contumacious conduct or obstruction to of the majesty of law, for the reason that respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizens that his rights rt shall be protected and the entire democratic fabric of the society will crumble down if the respect of the judiciary is undermined. Undoubtedly, the contempt jurisdiction is a powerful weapon in the hands of the courts of law but that by itself operates as a string of caution and unless, thus, otherwise satisfied beyond reasonable doubt, it would neither fair nor reasonable for the law courts to exercise jurisdiction under the Act. The proceedings are quasi- criminal in nature, and therefore, standard of proof required in these proceedings is beyond all reasonable doubt. It would rather be hazardous to impose sentence for contempt on the authorities in exercise of contempt jurisdiction on mere probabilities. (Vide: V.G. Nigam & Ors. v. Kedar Nath Gupta & Anr., AIR 1992 SC 2153; Chhotu Ram v. Urvashi Gulati & Anr., AIR 2001 SC 3468; Anil Ratan Sarkar & Ors. v. Hirak Ghosh & Ors., AIR 2002 SC 1405; Bank of Baroda v. Sadruddin Hasan Daya & Anr., AIR 2004 SC 942; Sahdeo alias Sahdeo Singh v. State of U.P. & Ors., (2010) 3 SCC 705; and National Fertilizers Ltd. v. Tuncay Alankus & Anr., AIR 2013 SC 1299).
10. Thus, in order to punish a contemnor, it has to be established that disobedience of the order is wilful. The word wilful introduces a mental element and hence, requires looking into the mind of person/contemnor by gauging his actions, which is an ::: Downloaded on - 15/04/2017 19:27:36 :::HCHP 7 indication of ones state of mind. Wilful means knowingly intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It .
excludes casual, accidental, bonafide or unintentional acts or genuine inability. Wilful acts does not encompass involuntarily or negligent actions. The act has to be done with a bad purpose or without justifiable excuse or stubbornly, obstinately or perversely. Wilful act of is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The rt deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore, there has to be a calculated action with evil motive on his part. Even if there is a disobedience of an order, but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order, the contemnor cannot be punished. Committal or sequestration will not be ordered unless contempt involves a degree of default or misconduct. (Vide: S. Sundaram Pillai, etc. v. V.R. Pattabiraman; AIR 1985 SC 582; Rakapalli Raja Rama Gopala Rao v. Naragani Govinda Sehararao & Anr., AIR 1989 SC 2185; Niaz Mohammad & Ors. etc.etc. v. State of Haryana & Ors., AIR 1995 SC 308; Chordia Automobiles v. S. Moosa, AIR 2000 SC 1880; M/s. Ashok Paper Kamgar Union & Ors. v. Dharam Godha & Ors., AIR 2004 SC 105; State of Orissa & Ors. v. Md. Illiyas, AIR 2006 SC 258; and Uniworth Textiles Ltd. v. CCE, Raipur, (2013) 9 SCC 753).
11. In Lt. Col. K.D. Gupta v. Union of India & Anr., AIR 1989 SC 2071, this Court dealt with a case wherein direction was issued to the Union of India to pay the amount of Rs. 4 lakhs to the applicant therein and release him from defence service. The said amount was paid to the applicant after deducting the income tax payable on the said amount. While dealing ::: Downloaded on - 15/04/2017 19:27:36 :::HCHP 8 with the contempt application, this Court held that withholding the amount cannot be held to be either malafide or was there any scope to impute that the .
respondents intended to violate the direction of this Court.
12. In Mrityunjoy Das & Anr. v. Sayed Hasibur Rahaman & Ors., AIR 2001 SC 1293, the Court while dealing with the issue whether a doubt persisted as to the of applicability of the order of this Court to complainants held that it would not give rise to a contempt petition. The court was dealing with a case wherein the statutory rt authorities had come to the conclusion that the order of this court was not applicable to the said complainants while dealing with the case under the provision of West Bengal Land Reforms Act, 1955.
13. It is well settled principle of law that if two interpretations are possible, and if the action is not contumacious, a contempt proceeding would not be maintainable. The effect and purport of the order is to be taken into consideration and the same must be read in its entirety. Therefore, the element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act. (See: Sushila Raje Holkar v. Anil Kak (Retd.), AIR 2008 (Supp-2) SC 1837; and Three Cheers Entertainment Pvt. Ltd. & Ors. v. C.E.S.C. Ltd., AIR 2009 SC 735): (2008 AIR SCW 7951)."
Similar view has been taken by this Bench in Contempt Petition No. 415 of 2014, Rulda Ram Vs. Rakesh Kanwar, decided on 28th February, 2015.
12. Judged in the light of the aforesaid exposition of law, we are at loss to understand and comprehend as to how the respondents by abolishing the work-charge status in their establishments have committed contempt of the orders ::: Downloaded on - 15/04/2017 19:27:36 :::HCHP 9 passed by this Court. This Court while adjudicating upon the issue had in the operative part of its judgment in Rakesh .
Kumar Vs. State of H.P. observed as under:-
"7. In the above circumstances, these Writ Petitions are disposed of directing the respondents to consider the case(s) of the petitioners herein for conferment of of work-charged status, subject to their eligibility in terms of the policy dated 3.4.2000 and as explained in 6.5.2000 policy, as extracted above. Needful in this rt regard shall be done within a period of three months from the date of production of the copy of this judgment by the respective petitioners. Needless to say that the question of conferment of work-charged status does not arise in case the establishment ceases to be a work charged establishment and hence, the conferment of the status will not arise after the abolition of the work-charged status of the establishment."
(underlining supplied by us)
13. It would be evident from the underlined portion of the order that this Court was conscious and alive to the fact that in certain establishments, the work-charged status may be abolished and it is for this reason that the Court qualified its judgment by making it clear "that the question of conferment of work-charged status does not arise in case the establishment ceases to be a work charged establishment and hence, the conferment of the status will not arise after the abolition of the work-charged status of the establishment."
::: Downloaded on - 15/04/2017 19:27:36 :::HCHP 1014. Learned counsel for the petitioner would however argue that even in the Special Leave Petition filed .
by the State before the Hon'ble Supreme Court, it had not been mentioned that the work-charged status in the I&PH stands abolished and therefore, in such circumstances the of respondents are precluded from raising such contention before this Court.
15. rt We find no force in this submission for the simple reason that the work charge status of Class-III and IV was abolished on 19.6.2001 and 12.12.2005 respectively, whereas the judgment in Rakesh Kumar's case was rendered subsequently on 28.7.2010. It is for this reason that the Court being alive to such situation had qualified its decision by making it absolutely clear that the question of conferment of work-charged status would not arise in case the establishment ceased to be a work-charged establishment. Once such observation had been made in favour of the State, there was no question of assailing these observations before the Hon'ble Supreme Court.
16. To be fair to the learned counsel for the petitioner, he has though cited the judgments rendered by Hon'ble Supreme Court in State of H.P. & others Vs. Gehar Singh 2007 (4) SLR 729, Mool Raj Upadhyaya Vs. State of H.P. and others 1994 Supp (2) SCC 316 and judgment of this ::: Downloaded on - 15/04/2017 19:27:36 :::HCHP 11 Court in Gauri Dutt and others Vs. State of H.P. Latest HLJ 2008, 366 but has failed to convince us as to how the ratio .
laid down therein is applicable to the facts of the instant case.
17. In Mool Raj's case (supra), the scheme as of formulated by the State of Himachal Pradesh and modified by the Hon'ble Supreme Court has been reproduced.
18. rt Whereas, in the case of Gehar Singh (supra), the Hon'ble Supreme Court held that there was nothing wrong with the directions passed by the Tribunal in favour of the workmen, whereby they were held entitled to claim the benefit of betterment scheme then the one as placed before the Court in Mool Raj Upadhyaya's case.
19. In so far as the judgment passed by this Court in Gauri Dutt's case (supra) is concerned, it was clearly held that the approved scheme in Mool Raj's case for regularization and conferment of work-charged status was not confined to the employees of I&PH and PWD alone, but would be applicable to all the Departments of the Government. It was further provided that the workmen whose cases are not covered under para 4 of the scheme placed before the Hon'ble Supreme Court in Mool Raj's case, would be governed by the scheme framed by the State Government on 6th May, 2000, extending therein the ::: Downloaded on - 15/04/2017 19:27:36 :::HCHP 12 similar benefit as was in the earlier scheme. Lastly, it was held that where the employee has rendered service on daily .
waged basis on separate posts in lower and higher scales, he must be given option whether to be regularized on lower post or wait 10 years to be completed on higher post. In of case such employee does not exercise option within 30 days he is to be regularized on lower post.
rt Judged in the light of the aforesaid discussion, we find no merit in these petitions and the same are accordingly dismissed. Notices issued to the respondents are ordered to be discharged.
(Mansoor Ahmad Mir) Chief Justice.
(Tarlok Singh Chauhan),
December 9, 2015 Judge.
(KRS)
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