Rajasthan High Court - Jaipur
Anwar Khan vs State Of Rajasthan And Ors. on 11 January, 1999
Equivalent citations: 1999(2)WLC507, 1999(1)WLN53
Author: B.S. Chauhan
Bench: B.S. Chauhan
JUDGMENT B.S. Chauhan, J.
1. The instant writ petition has been filed for issuing a direction to the respondents to release the annual grade increments and fix the salary of the petitioner as and when the same fell due and pay him all that became payable on that account alongwith interest @18% per annum as and when the same became payable and were not paid to the petitioner, and further to direct the respondents to fix the salary of the petitioner consequent to the aforesaid reliefs and further direction to the respondents to grant other benefits such as leave etc. which are granted to regularly appointed Class IV employees.
2. The facts and circumstances giving rise to this case are that petitioner was initially appointed on daily wages in 1984 along with the respondents as Class IV employee. He filed S.B. Civil Writ petition No. 3906/1990 for seeking the relief of regularisation and grant of equal pay for equal work. The said writ petition was decided on 6.9.1993 and the. operative part of the order runs as under -
On the facts and circumstances of the present case, the petitioner is not entitled to regularisation, but he is entitled to get equal wages...as was being given to regularly employed Class IV employees.
Consequently, the writ petition succeeds and is allowed partly. The petitioner would be entitled to get equal wages as was being given to similarly situated Class IV employees. His entitlement to get wages would be from the date of filing of the writ petition.
3. Though the writ petition was decided on 6.9.1993 but the petitioner made a representation on 3.5.1995 that he was entitled for regular pay scale and arrears of Rs. 40,166/. However, the petitioner was paid the difference of the minimum of the regular pay scale of Class IV employee and whatever had already been paid by the respondents, on 15.7.95, and it appears that some extra amount had also been paid. The petitioner, now, claims that in pursuance of the said judgment and order dated 6.9.1993, the respondents have not granted the annual grade increments of the pay-scale and other benefits like leave etc. and petitioner's apprehension is that while computing the arrears on account of grant of regular pay scale, the increments have not been allowed to him. Hence this writ petition.
4. Mr. Mridul has submitted that as per the said judgment, petitioner is entitled to get annual grade increments etc, as the regular employees are getting. The submission seems to be strange as petitioner cannot claim to be "similarly situated" Class IV employees, who had been appointed through a regular selection process after the public advertisement. He may be entitled for the minimum of the regular pay scale of the said post otherwise he would be given the benefit as if he stood regularised, though no such relief has been granted to him. The court fails to understand as how the petitioner claims himself to be "similarly situated" to the regular employees of the respondents, who had been appointed by regular selection after inviting applications.
5. Be that as it may, at this stage, I am not inclined to enter into the issue of the entitlement of the petitioner under the said judgment and the case is restricted to the issue: whether the present writ petition is maintainable or not, as the relief claimed by the petitioner in the present writ petition, had already been sought by him in the earlier writ petition decided on 6.9.1993.
6. The issue of filing successive writ petition has been considered by the Hon'ble Supreme Court time and again and held that even if the earlier writ petition has been dismissed as withdrawn, Public Policy which is reflected in the principle enshrined in Order 23 Rule 1 C.P.C., mandates that successive writ petition cannot be entertained for the same relief. (vide Sarguja Transport v. State Transport Appellate Tribunal ; Ashok Kumar v. Delhi Development Authority Khacher Singh v. State of U.P. and other AIR 1995 All 332; and Uda Ram v. Central State Farm . For maintaining the writ petition in such a case, there must be liberty given by the Court to file the writ petition if need be arisen for it.
7. Even if a party does not pray for the relief in the earlier writ petition, which he ought to have claimed in the earlier petition, he cannot file a successive writ petition claiming that relief, as it would be barred by the principle of constructive res judicata enshrined in Explanation IV to Section 11 and Order 2 Rule 2 of the Code of Civil procedure. In Order 2 Rule 2 C.P.C., as has been explained, in unambiguous and crystal clear language by the Hon'ble Supreme Court in Commissioner of Income Tax v. T.P. Kumaran Union of India and Ors. v. Punni Lal ; and D. Gudasji & Co. v. State of Mysore .
8. Mr. Mridul has submitted that the earlier judgment has created a legal right in favour of the petitioner and he has a right to maintain this writ petition to enforce the said right. In support of his submission, he has placed reliance upon a Division Bench judgment of this Court in Prakash Chaturvedi v. State of Rajasthan and Ors. D.B. Civil Writ Petition N. 5735/1990, decided on 30.1.91, wherein it has been held that the powers of this Court under Article 226 of the Constitution of India will, also, extend to the issue of orders to see that the order made by it are complied with. The Court further observed as under-
In contempt petition, as such, this Court may or may not be able to direct the contemnors to comply with the orders of the Court as they are liable to be punished. Thus, so far as the jurisdiction of this Court under Article 226 of the Constitution of India is concerned, we are of the opinion that this Court can make orders in the nature of orders made in the execution proceedings, to see that earlier directions/orders made by it are complied with.
9. The Division Bench while disposing of the said writ petition directed the respondents, to ensure the compliance of the order passed in the writ petition earlier. However, the respondents in that case did not comply with the order dated 30.1.91 passed by the Division Bench and the petitioner therein again filed S.B. Civil Writ Petition No. 5447/1992 to get the order dated 30.1.91 implemented. That writ petition was disposed of by the order of this Court dated 9.2.93 issuing further directions to ensure compliance of the orders passed by this Court earlier. While considering the issue of maintainability of the said petition the Court has observed that as the limitation for filing the application for Contempt of the Court had expired, the petitioner therein had no option but to file the writ petition in the interest of justice and in such circumstances the writ petition was held to be maintainable.
10. However, in a recent case, my revered brother Hon'ble justice R.R. Yadav, rejected the Writ Petition No. 2497/1998 vide judgment and order dated 14.9.98 on the ground that it was not maintainable. While rejecting the writ petition, the Hon'ble Court observed as under-
Suffice it to say in this regard that the present writ petition is barred by the principle of res judicata and as such is liable to be dismissed on this ground alone with an observation that the petitioner, if so advised, can move a petition under Article 215 of the Constitution.
Regarding apprehension of the petitioner that no contempt petition is maintainable after expiry of one year from the date of the order passed by the learned Single judge, suffice it to observe that for invoking the jurisdiction of this Court under Article 215 of the Constitution, there is no time limit prescribed. It is further to be noticed that the power of this Court under Article 215 is over and above the provisions of the Contempt of Court Act, 1971.
11. Mr. Mridul has submitted that the petitioner has a right to choose the forum to enforce the right created in his favour and, therefore, his writ petition cannot be dismissed as not maintainable for the reason that the petitioner cannot be rendered remediless. The argument made by Mr. Mridul has substance only to the extent that a party cannot be rendered remediless (Vide Rameshwar Lal v. Municipal Council, Tonk and Ors. and further that a person has a right to enforce his legal rights through writ jurisdiction provided the party has diligently perused the cause, but I am in respectful agreement with Hon'ble Yadav, J. that the writ petition is not the appropriate remedy and is not maintainable in the fact-situation like in the instant case. The view taken by the Division Bench that the contempt jurisdiction may not be appropriate in a case for enforcing the judgment, runs counter to the law laid down by the Hon'ble Supreme Court.
12. In Mohammed Idrish v. R.J. Babuji , the Hon'ble Supreme Court has held that undergoing the punishment for contempt does not mean that the Court is not entitled to give appropriate direction for remedy and rectify the things done in violation of its order.
13. In Century Flour Mills Ltd. v. S. Suppiah (Full Bench) and Surjit Pal v. Prabir Kumar Son , the Madras and Calcutta High Courts have taken the view that the parties cannot be permitted not to comply with the orders of the Court and it is the solemn duty of the Court, as a policy, to set the wrong right and not to allow perpetuation of the wrong-doing and even if a wrong has been done, the Court must undo it in the interest of justice.
14. Hon'ble Supreme Court in Delhi Development Corporation v. Skippers Construction Company , has observed that there can be no doubt that the salutary rule has to be applied and given effect-to by the Court, if necessary, by over-ruling any procedural or technical faults under Article 129 of the Constitution and the Court must ensure full justice between the parties before it, even while entertaining the contempt petition. In the said judgment, the Hon'ble Court has placed reliance upon the judgment in Clarke v. Chadburn (1985) 1 All. E.R. 211, wherein it has been observed as under
I need not cite authorities for the purpose that it is of high importance that the orders of the Court should be obeyed. Willful defiance of the order of the Court is punishable as a contempt of the Court, and I feel no dubt that such disobedience may properly be described as illegal. If by such disobedience the persons enjoy claim that they have validly effect some charges in the rights and liberties of others, I cannot see why it should be said that although they are liable to penalties for contempt of Court for doing what they did, nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing-out that it was done in breach of law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held, but the legal consequence of what has been done in breach of law may plainly be very much affected by the illegality. It seems to be on the principle that those who defy a. prohibition be not able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them.
15. The view taken by the Supreme Court in Skipper's case (supra) has been reiterated in Re: Ajay Kumar Pandey 1996 (6) SCC 510.
16. The limitations provided under the contempt jurisdiction of the Court are that the Court cannot issue a fresh direction or modify the order passed earlier. In State of Rajasthan and Ors. v. Mohan Singh 1995 (suppl.) 2 SCC 153, the Hon'ble Supreme Court has held that once the order has become final, no modification can be made in that order in exercise of the powers of contempt jurisdiction by the Court and if a party wants any kind of modification, for that a miscellaneous application has to be filed in the main petition. however, the Court, in the contempt jurisdiction, has a right to enforce the order passed by it in exercise of the writ jurisdiction and the Hon'ble Supreme Court directed the respondents to implement the order within the stipulated time. The same view has been taken by the Supreme Court in Balram Singh v. Bhikam Chand .
17. In J.S. Parihar v. Ganpat Duggar , the hon'ble Supreme Court held that it is not permissible for the Court, in exercise of its contempt jurisdiction, to consider the matter on merit and to pass an order modifying the order passed earlier as contempt jurisdiction does not confer any power on the Court to re-exercise the judicial review and to issue a fresh direction.
18. In Noordti Babul Thanewala v. K.M.M. Shetty and Ors. , the Apex Court has held that mere punishment to the contemnor for violating the order of he Court would not serve the purpose. The action of violating the order of the Court is misconduct amounting to contempt and for that the contemnor is liable to be punished and there must be an order to purge the contempt by directing the contemnor to comply with the order passed by the Court and for that the Court has a power to issue necessary further and consequential directions for enforcing its order in advance of the powers to punish the contemnor.
19. Similarly, in R.L. Kapoor v. State of Tamil Nadu and Ors. , the Apex Court has held that the High Court, as a Court of Record, "being clothed with a special jurisdiction, has all incidental and necessary powers to effectuate that jurisdiction. Consequently, it has the power to order satisfaction of "and the order passed by it earlier in favour of the party."
20. Therefore, it is abundant clear that in exercise of the contempt jurisdiction, the Court not only has the power to punish the contemnor but also to enforce the order passed by it and, therefore, I am of the considered opinion that the judgments relied-upon by Mr. Mridul are counter to the law laid down by the Supreme Court and hence cannot be followed.
21. Undoubtedly, a party cannot be allowed remediless but the Court must be satisfied that it has a right to enforce and he has endeavoured to enforce it and in order to do that he has perused the case diligently and bonafide. The rights claimed by the petitioner are doubtful and it is further fortified from the fact that the petitioner himself has approached this Court after a lapse of five years and it appears that he had been perusing the remedy diligently and effectively.
22. In Pritam Pal v. High Court of Madhya Pradesh AIR 1992 SC 904, the Hon'ble Apex Court has held that the power of the Supreme Court and the High Courts, being the Courts of Record, as embodied under Articles 129 and 215 respectively, cannot be restricted by any ordinary legislation including the provisions of the Contempt of Court Act. Their inherent power is elastic, unfettered and not subject to any limit. Such power is an inherent power and the jurisdiction vested is a set one not derived from any other statute and such constitutionally vested right cannot be either abridged by any legislation or abrogated or cut down.
23. As is evident from the judgments cited by Mr. Mridul himself that the petitioner therein had to file two successive writ petitions for getting the judgment delivered in earlier petitioner implemented. In the instant case, even if this Court issues the direction in exercise of its power under writ jurisdiction, what is the guarantee that the respondents would ensure the compliance of it and in that case, also the petitioner would have no option but either to resort to the writ petition or to file a contempt petition. Thus, I am of the considered opinion that the writ petition cannot be the appropriate and effective remedy which can be entertained by the Court to enforce its judgment. The Legislature, in its wisdom, has created a special forum for it and the petitioner ought to have resorted to it within limitation under the provisions of the Contempt of Courts Act and if it had expired under the provisions of Article 215 of the Constitution of India within reasonable period thereafter.
24. In view of the above, I am of the considered opinion that the petition is not maintainable. It is accordingly dismissed.