Meghalaya High Court
Shri S K Gupta vs Shri O S Marak on 21 September, 2016
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
IN THE HIGH COURT OF MEGHALAYA AT SHILLONG
: ORDER :
Shri S.K. Gupta Versus Shri O.S. Marak and Others Contempt Petition No. 36 of 2015 Date of Order: :: 21st September, 2016 HON'BLE THE CHIEF JUSTICE SHRI DINESH MAHESHWARI Shri KC Gautam, for the petitioner.
Shri HS Thangkhiew, Sr. Advocate with Shri PN Nongbri for the respondents.
AFR BY THE COURT:
Preliminary In this contempt petition, the petitioner asserts that the contemnors, the Under Secretary and the Director of Higher and Technical Education in the Department of Education, Government of Meghalaya, were deliberately avoiding to comply with the order dated 31.07.2015 as passed by this Court in WP(C) No. 24 of 2015 by denying him the benefit of enhanced amount of Death-Cum-Retirement Gratuity [„DCRG‟].
The referred order dated 31.07.2015 reads, in its entirety, as under:-
"31.07.2015 Heard learned counsel for the petitioners Mr. KC Gautam who submits that this instant case is squarely covered by the judgment of this Court passed in WP(C)No.334 of 2012 - Wandell Passah & Ors v. State of Meghalaya & Ors reported in (2014) 1 MJ 471, and prayed that the matter may be disposed of with a direction to the respondents to consider the case of the petitioners in the light of the said judgment reported above.
Heard also learned State counsel Mr. S Sen Gupta.
Vide order of this Court dated 02.06.2015, it appears that the matter was left upon the respondent No.4 to consider the matter within two weeks from the date of receipt of the records and documents. But till date, it appears that no effective steps have been taken by the respondent No.4. Therefore, the respondent No.4 is directed to consider the case of the 1 petitioners in the light of the judgment referred to above within three months failing which the petitioners will be at liberty to file contempt of court.
With the above observation and direction, this instant writ petition is allowed to that extent and stands disposed of."
The aforesaid short order does not carry all the relevant factual aspects, obviously for being based on the submissions that the matter was covered by another decision; and the directions had only been to consider the case of the petitioners in the light of the order passed in another case. Having regard to the submissions of learned counsel for the parties in the present matter and for just and proper disposal of the case, it is rather necessary to refer to the relevant background aspects leading to this contempt petition.
The background The basic dispute had been in relation to the claim for enhanced amount of Death-cum-Retirement Gratuity by the retired lecturers of deficit colleges in the State of Meghalaya. Eleven such lecturers, who had retired on different dates between 31.12.2007 to 30.06.2012 preferred the above- referred writ petition in this Court, being WP(C) No. 334 of 2012: Shri Wandell Passah and Others v. State of Meghalaya and Others, while stating grievance against the letters dated 19.06.2012 and 27.06.2012 as issued by the officers in the Department of Education, Government of Meghalaya that only those teachers who had not drawn their DCRG as on 24.12.2012 would be eligible for the benefit of enhanced amount of DCRG. The petitioners pointed out in the said writ petition and the Court also took note of the position that under an order dated 22.03.2010, the Government of Meghalaya had adopted and implemented UGC norms for revision of 2 pay scale of the teachers in the Government colleges and for the eligible teachers in the deficit colleges in the State of Meghalaya; and under another order dated 24.02.2012, the Government‟s approval was also conveyed to the proposal for enhancement of the ceiling of DCRG from Rs. 3.50 lakhs to Rs. 7.00 lakhs. This Government order dated 24.02.2012 reads as under:-
"GOVERNMENT OF MEGHALAYA EDUCATION DEPARTMENT ****** No. EDN.22/2007/81 Dated Shillong, the 24th February, 2012 From: Smti. E. Kharmawphlang, Under Secretary to the Govt. of Meghalaya, Education Department.
To, The Director of Higher & Technical Education,
Meghalaya, Shillong.
Subject:- Enhancement of Ceiling of D.C.R.G./Retirement Gratuity to
teachers of Deficit College.
Ref:- No. CE/GC/Enhance/2011/12 dt. 9th August, 2011
Sir,
I am directed to convey Government's approval to the proposal for enhancement of the Ceiling of DCRG from ` 3.50 lakhs to ` 7.00 lakhs in respect of the teaching and non-teaching staff of deficit colleges. However, in view of financial constraints, payment at the revised rates may perhaps be made in a phased manner as per the availability of fund under the existing provision 2011-2012.
This issues with the concurrence of Finance PR(Deptt) vide their I/D No. F(PR)161/11 dt. 17/12/2012.
Yours faithfully, Sd/-
Under Secretary to the Govt. of Meghalaya Education Department."
Noticeable it is that in the aforesaid order dated 24.02.2012, only the entitlement of the teaching and non-teaching staff members of deficit colleges to the enhanced amount of DCRG (Rs. 7.00 lakhs) was stated but not the date from which such an enhancement was to be effective and 3 available. However, by another order dated 19.03.2012, as issued in continuation of the aforesaid order dated 24.02.2012, it was stated that such enhancement will be applicable to only those lecturers who were yet to draw the DCRG.
It appears that the representative body of the retired teachers, the Retired College Teacher‟s Forum, while espousing the cause for enhanced amount of DCRG, had been making the claim that such enhanced DCRG be released to those who had retired on or after 01.01.2006 (the date from which the revised pay scale and other benefits were made applicable to teaching and non-teaching staff of deficit colleges in Meghalaya). In this regard, by a letter dated 19.06.2012, the Under Secretary to the Government of Meghalaya informed the Director of Higher and Technical Education that only those who had not drawn DCRG as on 24.02.2012, being the very date of the aforesaid order, would be entitled to the enhancement. Though until that stage, nothing specific was stated by the Government as regards the part of the demand that enhancement of DCRG be made effective from 01.01.2006 but then, in the later communication dated 27.06.2012 from the Director of Higher and Technical Education to the President of Retired College Teachers Forum of Meghalaya, it was stated that „the release of arrear at the enhanced rate of DCRG to those who retired on or after 1.01.2006 does not arise‟. It was further stated that „those who have not drawn their DCRG as on 24.02.2012 will get their DCRG at the enhanced ceiling limit‟. The said letter dated 27.06.2012 reads as under:-
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"OFFICE OF THE DIRECTOR OF HIGHER AND TECHNICAL EDUCATION MEGHALAYA :::::::::: SHILLONG No. CE/GC/ENHANCE/2011/17 Dt, Shillong, 27th June, 2012 From: Shri W.Khyllep, I.A.S., Director of higher & Technical Education, Meghalaya, Shillong.
To Shri W. Passah, President retired College Teachers Forum of Meghalaya, C/O Mr D.C Choudhury, Gordon Road, Laitumkhrah, Shillong - 793003.
Sub : Enhancement of DCRG.
Ref : Your letter No. Nil dt. 25.05.2012.
Sir,
With reference to your letter cited above, I am to state that as per Govt. letter No. EDN.22/2007/93 dt. 18.06.2012, the release of arrear at the enhanced rate of DCRG to those who retired on or after 1.01.2006 does not arise. Those who have not drawn their DCRG as on 24.02.2012 will get their DCRG at the enhanced ceiling limit.
This is for favour of your information and necessary action.
Yours faithfully, Sd/-
Director of Higher & Technical Education, Meghalaya:::Shillong."
In the case of Shri Wandell Passah (supra), while the aforesaid aspects emanating from different communications of the Government concerning enhancement of ceiling of DCRG and entitlement of the teachers of deficit colleges as also on the validity of the suggested cut-off date of 24.02.2012 were gone into and the Court accepted the contention that by providing an artificial cut-off date [24.02.2012], a discriminatory treatment was sought to be given to some of the persons in the same group i.e., the retired lecturers of deficit colleges but then, the question as to what ought to be the cut-off date and as to whether the enhanced DCRG would be available w.e.f. 01.01.2006 was neither argued nor 5 determined. The Court, of course, found that some other teachers who had retired on 28.02.2010 and 21.12.2008 had been allowed their DCRG at Rs. 7.00 lakhs; and found no reason that the lecturers of deficit colleges were sought to be restricted in their entitlement only after 24.02.2012. In conclusion, while setting aside the impugned communications, this Court directed that the ceiling limit of DCRG in relation to the writ petitioners would be calculated as per the Government order dated 24.02.2012 and paragraph 6 of the Meghalaya Aided College Employees Death-Cum- Retirement Gratuity Scheme, 1985. Accordingly, the said writ petition filed by Shri Wandell Passah and others was concluded with the following directions:-
"15. In the result, the impugned letter dated 19.03.2012 and the impugned letter dated 27.06.2012 are hereby set aside and quashed. Corollary of this judgment and order is that the ceiling limit of DCRG for the writ petitioners shall also be calculated in pursuance of the said letter of the Govt. of Meghalaya dated 24.02.2012 and Para 6 of the Meghalaya Aided College Employees Death-Cum-Retirement Gratuity Scheme, 1985 within a period of four months from the date of receipt of a certified copy of this judgment and order and after such calculation, the enhanced amount of DCRG should be released to the writ petitioners within one month."
The aforesaid decision in Wandell Passah's case was rendered on 16.04.2014. Thereafter, on 25.02.2015, the present petitioner, Shri S.K. Gupta, who had retired on 31.01.2006, along with two other persons, Shri Hrishikesh Dhar and Dr. (Mrs) Nalini Sinha, who had retired respectively on 31.03.2009 and 30.11.2008, preferred the aforesaid writ petition bearing No. 24 of 2015 in this Court making a claim for the same enhanced amount of DCRG. In this writ petition [WP(C) No. 24 of 2015], specific averments were taken to the effect that the enhanced DCRG was available to the persons who were in active service as on 01.01.2006 in the following:-
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"8.That your petitioners state that the enhancement in the rates of gratuity as per Annexure III above was to be made available to the staff (teaching and non teaching) of deficit colleges in respect of whom revised scale of pay and other allowances as per UGC norms conveyed vide Govt. of India circular dated 31/02/2008 was made applicable by the respondent Govt. of Meghalaya vide its Notification under No.EDN.34/2009/91 dated 22/03/2010 (Annexure II), i.e. in respect of those teaching staffs of the deficit colleges who were in service as on 1/1/2006. It is the case of the petitioners that they are entitled to the enhancement of DCRG as per the Notification under No. EDN.22/2079/81 dated 24/02/2012 (Annexure III) as they were in active service as on 01.01.2006, the cut-off date from which the revised pay scale and other benefits contained in the Govt. of India Circular was made applicable to teaching and non teaching staff of deficit colleges in Meghalaya by the Govt. of Meghalaya."
The significant aspect of matter remains that in the said writ petition, an affidavit-in-opposition dated 18.05.2015, of the Joint Secretary to the Government of Meghalaya in the Education Department, was filed on behalf of the respondents and therein, it was rather an admitted case on behalf of the Government that enhancement scheme came into effect on 01.01.2006; but it was alleged that the petitioners had not been able to show that they were working „as on 01.01.2006 when the scheme came into effect‟. The relevant part of the said affidavit-in-opposition dated 18.05.2015 reads as under:-
"10.That in reply to the averment made at paragraph 8 of the writ petition the answering respondent state that there is nothing on record to show that the petitioners are still working as on 01.01.2006 when the scheme came into effect as such the petitioners are put to the strictest proof thereof."
The petitioner filed a rejoinder affidavit in the said writ petition while alleging, inter alia, that in Wandell Passah's case, the law was laid down to the effect that DCRG would be applicable to all college teachers who were in service as on 01.01.2006. The petitioner, thereafter, proceeded to take on the question raised by the respondents and for that matter, produced the documents to show that all the petitioners were in service as on 01.01.2006.
7
It is borne out that in the writ petition so filed by the petitioner alongwith two others, the matter was considered on 02.06.2015 when it was submitted before the Court on behalf of the respondents that the petitioners should place their documents before the respondent No. 4 to the writ petition [the Director of Higher and Technical Education] who was the competent authority to decide the matter. Thereupon, the Court ordered that within a week, the petitioners would place their documents before the respondent No. 4, who would decide the matter within two weeks thereafter. After these proceedings, when the respondent No. 4 of the writ petition failed to take a decision as required, the petition so filed by the petitioner with two others came to be disposed of by the short order dated 31.07.2015, as quoted at the outset.
Significantly, before the decision in the petitioner‟s writ petition, the present respondent No. 1, then working as Under Secretary to the Government of Meghalaya in the Education Department sent a letter dated 15.06.2015 to the present respondent No. 2, who was working as the Director of Higher and Technical Education, Meghalaya particularly with reference to the decision in Wandell Passah's case (supra). Therein, the present respondent No. 1 clearly stated that the enhanced limit of DCRG from Rs. 3.5 lakhs to 7 lakhs in respect of the teaching staff and non- teaching staff of deficit colleges would be applicable to all those who had retired after 01.01.2006. The said letter dated 15.06.2006 reads as under:-
"GOVERNMENT OF MEGHALAYA EDUCATION DEPARTMENT ****** No. EDN.22/2007/216 Dated Shillong, the 15th June, 2015 From : Smti O.S. Marak Under Secretary to the Govt. of Meghalaya, Education Department.8
To, The Director of Higher & Technical Education, Meghalaya, Shillong.
Subject : Enhancement of ceiling of DCRG/Retirement Gratuity to Teachers of Deficit Colleges.
Sir, In continuation to this Department's letter No.EDN.22/2007/81 dated 24/2/2012, I am directed to say that the enhance limit of Death Cum Retirement Gratuity from ` 3.50 lakh to ` 7.00 lakh in respect of the teaching staff and non teaching staff of Deficit Colleges will be applicable to all those who retired after 01/01/2006.
This cancel this Department's letter No.EDN.22/2007/82 dated 19th March, 2012 and this order may be read with the Hon'ble High Court Judgment and order dated 16/4/2014.
This has the approval of the Competent Authority.
Yours faithfully, Sd/-
Under Secretary to the Govt. of Meghalaya, Education Department."
However, after rendering of the decision in the case of the petitioner, the very same Under Secretary (respondent No. 1 herein) proceeded to issue another letter dated 11.08.2015, this time stating that the enhanced limit of DCRG would be available only from 01.01.2007. The contents of this letter dated 11.08.2015 are as under:
"GOVERNMENT OF MEGHALAYA EDUCATION DEPARTMENT ********* NO.EDN.22/2007/219 Dated Shillong the 11th August, 2015 From:- Smti. O.S. Marak, Under Secretary to the Govt. of Meghalaya, Education Department.
To, The Examiner of Local Accounts, Meghalaya, Shillong.
Sub:- Enhancement of ceiling of DCRG/Retirement gratuity to teacher of Deficit College.
Ref:- No.DLA/DC/Enh-DCRG/1/2012/68, dated 22nd June, 2015.9
Sir, In continuation to this Department's letter No.EDN.22/2007/216, Dated 15th June, 2015, I am directed to say that the enhance limit of DCRG/Retirement Gratuity from ` 3.50 lakh to ` 7.00 lakhs may be given with effect from 1.1.2007 for both teaching and non-teaching staff drawing UGC scale of pay and State Govt. Scale of pay.
This has the approval of the Competent Authority.
Yours faithfully, Sd/-
Under Secretary to the Govt. of Meghalaya Education Department."
In view of the above-quoted communication dated 11.08.2015, the examiner of Local Accounts returned the case of the present petitioner for payment of DCRG at the enhanced rate with the observations that the petitioner was not entitled thereto for having retired on 31.01.2006.
In view of the above, the petitioner has filed this contempt petition while alleging that the respondents No.1 and 2 herein were deliberately avoiding to comply with the directions of the Court.
Initial stand of the respondents in this Contempt Petition The respondents in this Contempt Petition initially filed separate replies seeking to justify the denial of benefits to the petitioner; and with reference to the notification of the Government No. FEM (PC)- 47/2010/22 dated 04.11.2010, asserted that the enhanced limit of DCRG from Rs. 3.50 lakhs to Rs. 7.00 lakhs came into effect only from 01.01.2007.
Apart from the fact that such a notification was never placed before the Court, whether in Wandell Passah's case (supra) or even in the present petitioner‟s case, this Court noticed the significant fact that after the decision in Wandell Passah's case and before that in the present petitioner‟s case, the respondent No. 1 specifically stated in her letter dated 15.06.2015 that the enhanced limit of DCRG was applicable 10 w.e.f. 01.01.2006 and the said letter dated 15.06.2015 was never withdrawn even until the decision of the petitioner‟s case on 31.07.2015. It was also noticed that even after the decision of the petitioner‟s case, the subsequent letter dated 11.08.2015 was issued „in continuation to letter dated 15.06.2015‟ (and not in supersession thereof).
After taking note of the incongruous and rather bizarre position emanating from varying stands taken by the respondents of writ petition and the present respondents-contemnors, and while wondering if there was at all any clarity in the Government on the date from which enhanced DCRG was to be effective, this Court directed personal appearance of the contemnors by the order dated 27.05.2016. After the matter was further considered in the presence of the contemnors, it was given out on their behalf that they proposed to file a supplementary affidavit; and such a course was permitted by the order dated 22.07.2016.
Modified stand of the respondents After the proceedings aforesaid, an additional affidavit dated 02.08.2016 came to be filed by the respondent No.1 wherein, even while attempting to refer to the Meghalaya Civil Services (Pension) (Fifth Amendment) Rules, 2010 to suggest that the benefit of enhanced DCRG was to be applicable only with effect from 01.01.2007, the respondent No.1 has, however, admitted that such a point was not highlighted before the Court when the decision was rendered on 31.07.2015. The respondent No. 1 has further pointed out that in the given circumstances, a decision has been taken to extend the benefit of DCRG to the petitioner without creating a precedent. The respondent No.1 has also stated that the letter dated 15.06.2016 being erroneous, a corrigendum has been issued on 11 02.08.2016 to the effect that the enhanced limit of DCRG would be available to the teaching staff and non-teaching staff of deficit colleges who had retired after 01.01.2007. The relevant contents of this affidavit dated 02.08.2016 could be noticed as under:-
"5. That the deponent states that the petitioner who was serving as a Lecturer in Shillong College retired from his service on 01.02.2006. The petitioner then filed the writ petition (W.P.(C) No.24 of 2015) before this Hon'ble Court praying for a direction for payment of enhanced DCRG in terms of the said OM No.EDN 22/2007/81 dated 24.02.2012. This Hon'ble Court, relying on an earlier judgment dated 16.04.2014 passed by this Hon'ble Court in W.P.(C) No.334 of 2012 (Wandell Passah and others vs. State of Meghalaya), vide judgment and order dated 31.07.2015 disposed of the writ petition by directing the respondents to consider the case of the petitioner in the light of the judgment passed in Wandell Passah's case. It may be stated herein that in Wandell Passah's case there were 11 petitioners and all of them had retired from service between 31.12.2007 to 30.06.2012 i.e. after 01.01.2007. As such all of them were entitled to the benefits of the Meghalaya Civil Services (Pension) (Fifth Amendment) Rules, 2010 which came into effect from 01.01.2007. The petitioner in the instant case retired from service on 01.02.2006 (before coming into force of the Meghalaya Civil Services(Pension) (Fifth Amendment) Rules, 2010) and as such it was noticed that he was not entitled to the benefit of the said Fifth Amendment. However, this point was not highlighted before this Hon'ble Court and this Hon'ble Court rendered the order dated 31.07.2015 directing the respondents to consider the case of the petitioner in the light of the judgment passed in Wandell Passah's case. The said order was rendered by this Hon'ble Court on 31.07.2015 and no appeal or review has been filed against the said order. As such in compliance of the order dated 31.07.2015 passed by this Hon'ble Court, a decision has been taken on 01.08.2016 that the benefit of enhanced DCRG be extended to the petitioner. The deponent further states that since the Meghalaya Civil Services(Pension) (Fifth Amendment) Rules, 2010 came into effect from 1st January 2007, therefore only a person retiring on or after 1 January 2007 is entitled to the enhanced DCRG of Rs.7,00,000/-. Therefore, in these circumstances it is also decided that payment of enhanced DCRG to the petitioner shall not be taken to be a precedent for others who retired before 01 January 2007.
6. That the deponent further states that the deponent had earlier issued letter No.EDN.22/2007/216 dated 15th June 2015 stating that "the enhanced limit of DCRG from RS.3.50 lakh to Rs.7.00 lakh in respect of teaching staff and non-teaching staff of deficit colleges will be applicable to all those who retire after 01.01.2006". This letter being erroneous, a corrigendum has been vide letter No.EDN.22/2007/227 dated 02.08.2016 has been issued stating that "the enhanced limit of DCRG from RS.3.50 12 lakh to Rs.7.00 lakh in respect of teaching staff and non-teaching staff of deficit colleges will be applicable to all those who retire after 01.01.2007".
7. That this affidavit is filed to bring on record the aforesaid steps taken by the respondents in compliance of the order dated 31.07.2015 passed in W.P.(C) No.24 of 2015."
Even while taking such an affidavit on record, this Court has heard the learned counsel for the parties in this contempt matter looking to the issues raised and in the circumstances that the relevant aspects did not get their requisite exposition and elucidation in the earlier decision; and that the respondents related with Government of Meghalaya had taken rather inconsistent stands at different stages.
Rival submissions Learned counsel for the petitioner Shri KC Gautam has strenuously argued that the respondents are not justified in suggesting now in this contempt matter that the enhanced limit of DCRG was available only w.e.f. 01.01.2007, when such had never been their case in the writ petition filed by the petitioner. Learned counsel emphasised that contrary to what has been suggested in the initial affidavit filed in this contempt petition by the respondents, their case in the writ petition was clearly to the effect that DCRG was available from 01.01.2006 and the only ground raised was that the petitioners of the writ petition had not shown that they were in service as on 01.01.2006. Learned counsel would argue that in view of the pleadings as taken in the writ petition and in view of the concluded decision in his case, the respondents are not entitled now to suggest a different cut-off date so as to deprive the petitioner of the enhanced limit of DCRG. Learned counsel has referred to and relied upon the decisions of the Hon‟ble Supreme Court in T.R. Dhananjaya v. Shri J. Vasudevan:
(1995) 5 SCC 619; Jhareswar Prasad Paul and another v. Tarak Nath 13 Ganguly and others: (2002) 5 SCC 352; and Bihar Finance Service House Construction Cooperative Society Ltd. v. Gautam Goswami and others:
(2008) 5 SCC 339.
On the other hand, learned senior counsel Mr. HS Thangkhiew appearing for the respondent No.1 has submitted that although in the given set of circumstances, the Government has taken a decision to allow the enhanced limit of DCRG to the petitioner because there had been certain errors in the pleadings but and however, the petitioner cannot take advantage of such errors and cannot seek determination of an issue that has not been decided in the writ petition. Learned senior counsel submitted that the actual date of applicability of enhanced DCRG was not determined by the Court and such a determination cannot be made now in this contempt matter; and has referred to the decisions of the Hon‟ble Supreme Court in V.M. Manohar Prasad v. N. Ratnam Raju and another: (2004) 13 SCC 610; Anil Kumar Shahi (2) and others v. Prof. Ram Sevak Yadav and others: (2008) 14 SCC 115; Bhavan Vaja and others v. Solanki Hanuji Khodaji Mansang and another: (1973) 2 SCC 40. The learned counsel has also referred to the decision of Gauhati High Court in the case of Rakhal Ch. Dey and others v. Dr. Surendra Nath Sarma and others: (2004) 3 GLR 214; and that of Rajasthan High Court in the case of Chela Ram Vs. Ashok Sampat Ram & Ors: DB Civil Contempt Petition No. 210/2010.
Having given thoughtful consideration to the entire matter, this Court is clearly of the view that this contempt petition deserves to be disposed of while giving time to the respondents to carry out compliance as suggested in the affidavit dated 02.08.2016.
14 Parameters of Contempt Jurisdiction Before proceeding further, appropriate it would be to take note of the principles emanating from the decisions cited by the learned counsel for the parties, particularly on the scope and parameters of these proceedings.
In the case of T.R. Dhananjaya (supra), the petitioner was to be given the benefit as per the earlier order passed by the Hon‟ble Supreme Court even by creation of supernumerary post of Chief Engineer and even in the contempt proceedings, initially the respondents were granted time to carry out compliance but then, it was sought to be suggested that the petitioner was not eligible for the post of Chief Engineer. In the given circumstances, the Hon‟ble Supreme Court held that when the Court had already granted time for implementing the order, nothing remained except carrying out implementation and the question on the eligibility of petitioner was found to be an attempt to circumvent and to deny the benefits to him; and the contemnors were found guilty of deliberate disobedience. In the course of such a conclusion on the contumacious conduct of the respondents, the Hon‟ble Supreme Court observed that at the stage of issuance of directions in favour of the petitioner, it was never brought to the notice of the Court that the petitioner was not eligible for promotion; and the order on the claim of the petitioner having become final, it was not open for the Government to take volte-face steps and to go beyond the orders of the Court and to truncate the effect thereof by hovering over the rules. The Hon‟ble Supreme Court, inter alia, observed as under:-
"11. Question is whether it is open to the respondent to take at this stage this volte-face step. It is seen that all through the Government was a party. When the direction was given in IA No. 3 filed by the petitioner, it was not brought to our notice that the petitioner was not eligible for promotion, in contradistinction with Dasegowda, or any other. When the claim inter se had been adjudicated and the claim of the petitioner had become final and 15 that of Dasegowda was negatived, it is no longer open to the Government to go behind the orders and truncate the effect of the orders passed by this Court by hovering over the rules to get round the result, to legitimise legal alibi to circumvent the orders passed by this Court. Thus it is clear that the officers concerned have deliberately made concerted effort to disobey the orders passed by this Court to deny the benefits to the petitioner. So, we are left with no option but to hold that the respondent has deliberately and willfully, with an intention to defeat the orders of this Court, passed the impugned order."
In the case of Jhareswar Prasad Paul (supra), the Hon‟ble Supreme Court pointed out that the Court, while exercising contempt jurisdiction would not enter into the question which had not been dealt with and decided; and the Court has to consider only the directions issued in the judgment or order and not to consider the question as to what the judgment or order should have contained. The Hon‟ble Supreme Court, inter alia, observed as under:-
"11. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law, since the respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizen and the democratic fabric of society will suffer if respect for the judiciary is undermined. The Contempt of Courts Act, 1971 has been introduced under the statute for the purpose of securing the feeling of confidence of the people in general for true and proper administration of justice in the country. The power to punish for contempt of court is a special power vested under the Constitution in the courts of record and also under the statute. The power is special and needs to be exercised with care and caution. It should be used sparingly by the courts on being satisfied regarding the true effect of contemptuous conduct. It is to be kept in mind that the court exercising the jurisdiction to punish for contempt does not function as an original or appellate court for determination of the disputes between the parties. The contempt jurisdiction should be confined to the question whether there has been any deliberate disobedience of the order of the court and if the conduct of the party who is alleged to have committed such disobedience is contumacious. The court exercising contempt jurisdiction is not entitled to enter into questions which have not been dealt with and decided in the judgment or order, violation of which is alleged by the applicant. The court has to consider the direction issued in the judgment or order and not to consider the question as to what the judgment or order should have contained. At the cost of repetition, be it stated here that the court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party, which is alleged to have committed deliberate default in complying with the directions in the judgment or order. If the judgment or order does not contain any specific direction regarding a matter or if there is any ambiguity in the directions issued therein then it will be better to direct the parties to approach the court which disposed of the matter for clarification 16 of the order instead of the court exercising contempt jurisdiction taking upon itself the power to decide the original proceedings in a manner not dealt with by the court passing the judgment or order. If this limitation is borne in mind then criticisms which are sometimes leveled against the courts exercising contempt of court jurisdiction "that it has exceeded its powers in granting substantive relief and issuing a direction regarding the same without proper adjudication of the dispute" in its entirety can be avoided. This will also avoid multiplicity of proceedings because the party which is prejudicially affected by the judgment or order passed in the contempt proceeding and granting relief and issuing fresh directions is likely to challenge that order and that may give rise to another round of litigation arising from a proceeding which is intended to maintain the majesty and image of courts."
In the case of Gautam Goswami (supra), the Hon‟ble Supreme Court indicated the scope and parameters of the contempt jurisdiction in the following:-
"31. While dealing with such an application, the court is concerned primarily with:
(i) whether the order passed by it has attained finality or not;
(ii) whether the same is complied with or not.
32. While exercising the said jurisdiction this Court does not intend to reopen the issues which could have been raised in the original proceeding nor shall it embark upon other questions including the plea of equities which could fall for consideration only in the original proceedings. The court is not concerned with as to whether the original order was right or wrong. The court must not take a different view or traverse beyond the same. It cannot ordinarily give an additional direction or delete a direction issued. In short, it will not do anything which would amount to exercise of its review jurisdiction."
In the case of V. M. Manohar Prasad (supra), the Hon‟ble Supreme Court again pointed out that an order in contempt proceeding cannot be supplemental to the main order in the following:-
"7. On the basis of what has been indicated above, the first submission is that there is no violation of the order passed by the learned Single Judge directing regularisation of the employees, since the said order has not been violated in any manner. The matter was considered in the light of the scheme for regularisation dated 24-4-1994. Secondly, it is submitted that the Contempt Court had no jurisdiction to issue any direction providing any substantive relief to the petitioners moving the contempt petition. In support of this contention reliance has been placed upon decisions of this Court in Jhareswar Prasad Paul v. Tarak Nath Ganguly and Notified Area Council v. Bishnu C. Bhoi. There is no doubt about the position under the law that in contempt proceedings no further directions could be issued by the court. In case it is found that there is violation of the order passed by the court the court may punish the contemnor otherwise notice of 17 contempt is to be discharged. An order passed in the contempt petition, could not be a supplemental order to the main order granting relief."
In the case of Anil Kumar Shahi (supra), the Hon‟ble Supreme Court reiterated the principle that in contempt jurisdiction, the Court has to examine if the person has willfully violated the order and if such an allegation is found to be true, the concerned officer may be punished for civil contempt and if need be, consequential orders for enforcement or execution of the order may also be passed but, while exercising its power under the Contempt of Courts Act, 1971, the Court would not pass an order which will materially add to or alter the original order; and when an authority is directed to consider the matter, mere error of judgment with regard to legal position cannot constitute contempt. The Hon‟ble Supreme Court, inter alia, observed and held as under:-
"50. It is by now well settled under the Act and under Article 129 of the Constitution of India that if it is alleged before this Court that a person has willfully violated its order it can invoke its jurisdiction under the Act to enquire whether the allegation is true or not and if found to be true it can punish the offenders for having committed "civil contempt" and if need be, can pass consequential orders for enforcement of execution of the order, as the case may be, for violation of which, the proceeding for contempt was initiated. In other words, while exercising its power under the Act, it is not open to the Court to pass an order, which will materially add to or alter the order for alleged disobedience of which contempt jurisdiction was invoked. When the Court directs the authority to consider a matter in accordance with law, it means that the matter should be considered to the best of understanding by the authority and, therefore, a mere error of judgment with regard to the legal position cannot constitute contempt of Court. There is no willful disobedience if best efforts are made to comply with the order."
In the case of Rakhal Ch. Dey (supra), the question before the Hon‟ble Gauhati High Court was about alleged disobedience of an order dated 07.04.1999 where directions were issued to the respondents to examine the claim of the writ petitioners and to make payment of the arrears of wages as payable to them within a period of one month from the date of furnishing of the copy of the order. The petitioners, inter alia, 18 alleged in the contempt petition that the payment as made was that of less wages than they were entitled to. In the given fact situation, the Court accepted the explanation given by the respondents on the exercise undertaking by them for calculating the wages. Therein, the Court observed on the scope of contempt jurisdiction in the following:-
"11. Contempt jurisdiction is of a special nature and should be sparingly used, it cannot be invoked unless there is real prejudice which can be regarded as substantial interference with the due course of justice. The court will not exercise it upon a mere question of propriety nor as a cloak to invite a decision on an important disputed and collateral question of fact as to whether the petitioners were entitled to any time scale of pay as their wages. It is highly necessary in all questions of that nature where the powers of the court have to be exercised in a summary manner, that the court in dealing with the alleged "contempt should not proceed otherwise than with great caution and deliberation. A statistical approach in a contempt proceeding is neither proper not judicial. A contempt proceeding is judicially punitive in nature and not remedial, even though the effect of proceeding in cases of willful disobedience of the Judgment or orders may compel compliance of the same. It is not sufficient in such cases for the purpose of initiating a proceeding of contempt simply because one committed an error in the Judgment or order passed by him in exercise of authority vested in him. The error must be willful and deliberate."
In the case of Chela Ram (supra), the Rajasthan High Court has reiterated the confines of contempt jurisdiction in the following:-
"The contempt petition is not meant to examine the legality and propriety of any order passed by the authorities concerned in any matter. This jurisdiction is confined to examine as to whether the respondent has acted in gross violation of writ issued by this Court so as to invoke the powers of Contempt of Courts Act. No such case is made out."
The decision in Bhavan Vaja case (supra) had been essentially relating to the execution proceeding under the Code of Civil Procedure and therein, the Hon‟ble Supreme Court explained the principles that it is the duty of the executing Court to find out the true effect of the decree; and for construing a decree, it can, and in appropriate cases it ought to, take into consideration the pleadings as also the proceedings leading up to the decree. The Hon‟ble Supreme Court enunciated the principles as follows:- 19
"20. It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree the Court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. Evidently the execution court in this case thought that its jurisdiction began and ended with merely looking at the decree as it was finally drafted. Despite the fact that the pleadings as well as the earlier judgments rendered by the Board as well as by the appellate Court had been placed before it, the execution Court does not appear to have considered those documents. If one reads the order of that Court, it is clear that it failed to construe the decree though it purported to have construed the decree. In its order there is no reference to the documents to which we have made reference earlier. It appears to have been unduly influenced by the words of the decree under execution. The appellate Court fell into the same error. When the matter was taken up in revision to the High Court, the High Court declined to go into the question of the construction of the decree on the ground that a wrong construction of a decree merely raises a question of law and it involves no question of jurisdiction to bring the case within Section 115, Civil Procedure Code. As seen earlier in this case the executing Court and the appellate Court had not construed the decree at all. They had not even referred to the relevant documents. They had merely gone by the words used in the decree under execution. It is clear that they had failed to construe the decree. Their omission to construe the decree is really an omission to exercise the jurisdiction vested in them".
In a summation of the principles available from the cited decisions, but it is clear that in the contempt jurisdiction, the Court is concerned essentially on the question as to whether the order under reference has attained finality and as to whether the same has been complied with or not. Obviously, this jurisdiction is neither for reopening of the issues which have been concluded nor for determination of such issues which could have been raised in the original proceeding. While dealing with a matter in the contempt jurisdiction, the Court is not concerned as to whether the order as passed in the main proceedings is right or wrong or as to what should have been the judgment or order. It is also trite that in case of any ambiguity in the direction issued, the Court may leave the matter at that while directing the parties to approach the Court that had disposed of the 20 matter for clarification or to take recourse to any other appropriate remedy in accordance with law and the Court will not be granting any additional or supplemental relief. However, it is also indubitable that the Court, in appropriate cases, may be required to construe the true meaning and effect of the order passed in the original proceedings to find and as to whether it has been complied with, in letter and spirit, or not. The significant factors and salient features of this case While keeping in view the principles aforesaid, when we examine the present matter, a few indisputable facts and significant factors are immediately noticeable as follows:-
(i) Under the order dated 22.03.2010, the Government of Meghalaya had adopted and implemented UGC norms for revision of pay scale of the teachers in the Government colleges and for the eligible teachers in the deficit colleges in the State of Meghalaya with effect from 01.01.2006.
(ii) Under another order dated 24.02.2012, the Government‟s approval was also conveyed for enhancement of the ceiling of DCRG from Rs. 3.50 lakhs to Rs. 7.00 lakhs for the eligible staff in the deficit colleges but without specifying the date from which the enhancement was to be effective and available.
(iii) By the letter dated 19.06.2012, an artificial cut-off date was sought to be created for the purpose of entitlement to the enhanced amount of DCRG that was disapproved by this Court in Shri Wandell Passah's case but then, in that decision, this Court did not specify the date from which the enhanced rates of DCRG were to be effective; and the question as to whether the enhanced rates of DCRG were available w.e.f. 01.01.2006 was neither argued nor determined.21
(iv) In writ petition No. 24 of 2015 in this Court, the petitioner ( who retired on 31.01.2006) made a claim for the same enhanced amount of DCRG and therein, the petitioner specifically averred that enhanced DCRG was available from 01.01.2006, the date from which the revised pay scale and other benefits contained in the Government of India Circular were made applicable to the teaching and non-teaching staff of deficit colleges in Meghalaya.
(v) Significantly, in the reply submission in the said writ petition filed by the petitioner with two other persons, it was rather admitted on behalf of the Government that enhanced DCRG was available from 01.01.2006 while seeking to question if the petitioners were at all in service on 01.01.2006.
(vi) As noticed at the outset, the writ petition filed by the petitioner with the said two other persons was disposed of by the learned Single Judge of this Court on 31.07.2015 with the short order, essentially to the effect that the respondent would consider the case of the writ petitioners on the basis of the decision in Shri Wandell Passah (supra) within three months.
The petitioner is entitled to the benefit In what has been noticed hereinabove, it is beyond the pale of doubt that even though the actual cut-off date for availability of enhanced DCRG was not pronounced in Wandell Passah (supra), but the respondents of the writ petition also never asked for clarification that such a cut-off date had to be 01.01.2007. In fact, it is noticed that in Wandell Passah's case, the Government chose not to file the reply at all. Moreover, when the petitioner asserted in his writ petition [WP(C) No. 24 of 2015] that the enhanced limit of DCRG was available from 01.01.2006, the Government of Meghalaya did not state any denial of the same and rather admitted 22 that 01.01.2006 was the date „when the scheme came into effect‟. Such an averment was taken by the respondents in the writ petition on 18.05.2015. Thereafter, the writ petition was considered on 02.06.2015 and the respondent No.4 of the writ petition was directed to take a decision in the matter. Interestingly, thereafter, though the respondent did not take any specific decision in regard to the petitioner but, the present respondent No.1, while working as Under Secretary to the Government of Meghalaya, Education Department indeed issued the Office Order dated 15.06.2015, stating unambiguously that the enhanced limit of DCRG was available w.e.f. 01.01.2006. Ultimately, with such a status of record and the stand of the respondents, the petitioner‟s writ petition was decided on 31.07.2015.
True it is that in the order dated 31.07.2015, the Court only directed consideration of the case of the petitioner and, ordinarily, no case of contempt could be considered merely on account of error on the part of the authority concerned while taking the decision but then, the concerned authority cannot ignore its own stand before the Court and take some other stand in an arbitrary manner. In the present case, the relevant background aspects operate heavily against the respondents if they seek to suggest that effective date of DGRC was different than what they had suggested before the Court. As observed by the Hon‟ble Supreme Court in T.R. Dhananjaya case (supra), it is not open to the Government „to truncate‟ the effect of an order of the Court „by hovering over the rules‟.
In the peculiar circumstances of the present case, this Court would hasten to observe that the question as to whether effective date of enhanced DCRG is to be taken from the alleged date of enforcement of Meghalaya Civil Services (Pension) (Fifth Amendment) Rules, 2010 or 23 from any other date is not the question for determination in this contempt matter. The respondents related with Government of Meghalaya rather had the opportunity to raise such an issue in the writ petition filed by the petitioner. Not only that they omitted to do so, they, in fact, admitted the effective date as asserted by the petitioner i.e., 01.01.2006; and specifically pleaded that 01.01.2006 was the date when „the scheme came into effect‟. The respondents raised a different question in the writ petition that the petitioners had not shown themselves being in service on 01.01.2006 and pleaded that they be put to strict proof in that regard. In the face of such pleadings, it had to be taken that the respondents made an admission before the Writ Court about the date of applicability of enhanced DCRG as asserted by the petitioner. That being the status of record and pleadings, there was no occasion for the petitioner to invite a decision of the Court on the cut-off date nor there was any occasion for the Court to embark upon any enquiry in that regard. When the respondents related with the Government of Meghalaya made an admission of fact in the writ petition and suggested a particular state of affairs to be existing in a particular manner, the consideration of the case of the petitioner by them has to be in conformity of such pleadings only.
It would be travesty of justice that despite the stand taken before the Court [in their affidavit dated 18.05.2015] and in their Office Order [dated 15.06.2015], the respondents be now permitted to turn around with the suggestion that it had been a matter of error on their part. Such a course, of suggesting a different cut-off date with reference to the date of applicability of the Meghalaya Civil Services (Pension) (Fifth Amendment) 24 Rules, 2010 cannot be permitted, in any event, in the petitioner‟s case because his matter has attained finality.
In the aforesaid view of the matter, the respondents appear to have rightly realized the futility and uselessness of their proposition in the initial affidavit filed in this contempt matter and seem to have rightly taken the decision to allow the enhanced limit of DCRG to the petitioner as stated in the affidavit dated 02.08.2016. Such a decision, qua the petitioner, is required to be implemented without further delay.
While concluding on this contempt petition, it appears appropriate to observe that herein, this Court has not pronounced on the issue that has not been gone into and determined in the original proceedings, whether in Wandell Passah's case or in the petitioner case. As noticed, the consideration herein has only been of the requirement that the respondents carry out compliance of the order passed by the Court in its letter and spirit and for that matter, this Court has disapproved the proposition of the respondents where they intended to take a stand different than that was taken in the writ petition in this Court. Conclusion For what has been discussed hereinabove, though the respondent are not held guilty of deliberate disobedience at present, but are granted opportunity to implement the decision as stated in the affidavit dated 02.08.2016 qua the petitioner at the earliest and in any case, within two months from today. It is also left open to the petitioner to seek revival of these contempt proceedings if necessary compliance is not carried out as indicated in the affidavit dated 02.08.2016 within two months from today. 25
Having regard to the circumstances, it is also considered appropriate and hence observed that after carrying out compliance, it shall be open for the State Government to enquire into the facts and features indicated hereinbefore and to take appropriate action in relation to any particular person/persons but, strictly in accordance with law.
This contempt petition stands disposed of accordingly and with the observations foregoing.
CHIEF JUSTICE Sylvana Item No. 2 26