Madhya Pradesh High Court
Ram Naresh Rathore vs Shri Manaoj Govil on 1 March, 2017
Conc. No. 1222/2016
(1)
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
JUSTICE ROHIT ARYA
Conc. No. 1222/2016
Ram Naresh Rathore
Vs.
Shri Manoj Govil and Others
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Shri Devesh Sharma, Advocate for the petitioner.
Shri Manoj Govil, Principal Secretary/respondent
no.1 present in person.
Shri G.S.Domore, Engineer-in-Chief/respondent
no.2 present in person.
Shri R.S.Thakur, Chief Engineer/respondent no.3
present in person.
Shri M.K.Umariya, Executive Engineer/respondent
no.4 present in person.
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ORDER
1/3/2017 This contempt petition, under Article 215 of the Constitution of India, has been preferred with a complaint that order passed by this Court on 23/9/15 in W.P. No. 6385/2015 (Ram Naresh Rathore Vs. State of M.P. & Others) has not been complied with and, at the same time, in excess of scope of the order, respondents have passed an order dated 8/2/17 withdrawing the status of classified permanent employee awarded to the petitioner vide order dated 15/6/05 i.e. at a distance of time after more than 12 years, with a calculated intention to circumvent not only the order complained of, but also the order passed by the Hon'ble Supreme Court in a batch of contempt petitions including the one bearing number 793- 817/2015 in SLP (C) No. 20025/2011 arising out of identical Conc. No. 1222/2016 (2) order as the one complained of, whereby the Hon'ble Supreme Court vide order dated 15/12/16 has ordered for payment to petitioners therein and similarly situated classified permanent employees minimum of the payscale payable to other permanent employees and the benefit of increment is to be extended only after regularization in service.
2. Before addressing the issue of commission of contempt of Court by respondents, it is apposite to advert to the facutal matrix of the case in hand.
3. One Kaluram Narwariya, who was engaged on daily wages, in the respondents' department w.e.f. 1/3/1985, had approached this Court after acquiring the status of classified permanent employee on the post of Pump Attendant for the reliefs quoted below:-
"(i) That, a direction may kindly be given to the respondents to give the Service benefits including pay scale, increments and D.A. of the post of Pump Attendant from the date of his classification as permanent employee.
(ii) That, respondents may further be directed to treat the petitioner at par with the regular employees with seniority and consequential benefits on the post of Pump Attendant from the date of his classification.
(iii) Any other relief, which this Hon'ble Court may deem fit and proper may also be given to the petitioner along with costs.;"
on the principle of Equal Pay For Equal Work seeking parity with other permanent employees.
A co-ordinate Bench of this Court, by a detailed order, disposed of the writ petition (W.P. No. 2000/2015) vide order dated 6/4/15, the relevant part whereof is reproduced below:-
"5. The Division Bench in Writ Appeal No. 110/2011 and connected matters (Annexure P/3) Conc. No. 1222/2016 (3) opined as under:-
"whether an employee comes by way of normal recruitment process or through the process of classification, the fact remains that both i.e. the normally recruited employee and a classified employee work on the same post and perform the same duties. It cannot be held that the classification has any less effect or force as compared to the normal process of appointment, because the classification is also based upon the law in the form of Standing Orders and as such both employees who have been brought into through either of the two processes permitted by law, as permanent employees against a particular post, should be entitled to the same benefits. Taking a contrary view would mean that the employees inducted through classification process would be saddled with an undesirable disability throughout their service, as compared to other employees which may tantamount to violation of the principle of "equal pay for equal work". Our view finds support from another Division Bench decision of this Court report in the case of State of M.P. Vs. Ram Prakash (1989 JLJ 36).
For the aforementioned reasons, we do not find any good ground to interfere with the order passed by the learned Single Judge. Accordingly, the writ appeals are dismissed.
6. The Apex Court dismissed the SLP (Civil) No.(s) 20025/2011. The Apex Court opined as under:-
"In Rest of the Matters Delay condoned.
Dismissed.
We direct the State Government to implement the order(s) passed by the High Court within eight months' time from today.
If for any reason, the petitioner- State does not implement the order(s) passed by the High Court, the respondents are at liberty to approach this Court by way of filing contempt petition(s)."
7. Apart from this, similar orders passed by this Court are affirmed by the Division Bench and by Supreme Court.
8. Considering the aforesaid, it can be safely concluded that the ratio decidendi of the judgment passed by this Court in State of MP vs. Ramprakash, reported in 1989 JLJ 36, followed in Writ Appeal No. 110/2011, is that the mode of induction as a permanent employee through Conc. No. 1222/2016 (4) Standard Standing Orders is also a permissible and statutory mode of induction. Once an employee is given permanent status under the Standing Orders, he becomes a permanent employee for all purposes. The said judgment in Ramprakash and in Writ Appeal No. 110/2011 has to be read as a judgment in rem and not a judgment in personame.
9. In view of this ratio, a model employer/welfare State should extend the similar benefits to all similarly situated persons. We are not oblivious of the fact that a sizable number of poor employees, who are in a lower echelon of the State Government service, are required to knock the doors of the Court for seeking similar relief. This kind of litigation can be avoided, if Government extends the benefits to all similarly situated persons. Once the Government's SLPs are dismissed and the legal position has attained a finality, in all fairness, the respondents should extend the benefit of the said principle to all similarly situated employees. In (1985) 2 SCC 648 (Inder Pal Yadav and others vs. Union of India and others), the Apex Court opined as under:-
"Therefore, those who could not come to the court need not be at a comparative disadvantage to those who rushed in here. If they are otherwise similarly situated, they are entitled to similar treatment, if not by anyone else at the hands of this Court."
10. In the light of aforesaid and at the cost of repetition, in my opinion, the judgment passed in State of MP vs. Ramprakash (supra) is a judgment in rem. The same can be said about the order dated 1.11.2011 (Annexure P/3).
Resultantly, this petition is disposed of by following directions :-
(1) The petitioner shall file a fresh representation before respondents along with the proof of acquiring permanent status by way of classification. The respondents shall verify and if petitioner's permanent status remains intact, he shall be given similar treatment, i.e., grant of regular pay scale attached to the permanent post from the date of classification as permanent employee.
(2) The respondents shall also grant increments attached to the pay scale and if rules permit, extend benefit of DA in favour of the Conc. No. 1222/2016 (5) petitioner.
(3) The respondents shall also pass a speaking order regarding claim of grant of seniority to the petitioner from the date of classification as permanent employee.
(4) If for any justifiable reason, the petitioner is not found entitled for any of the benefits claimed, a detailed and reasoned order be passed and communicated to the petitioner. The aforesaid exercise be completed within 120 days from the date of production of copy of this order along with the representation.
(5) It is made clear that it will not be open to the respondents to deny relief to the petitioners on the ground that they were not litigants in W.A. No. 1266/2010 and other similar matters, which were decided on merits, if they are otherwise similarly situated. Petition is disposed of."
4. A number of similarly situated classified permanent Class IV employees filed writ petitions seeking similar reliefs and direction of the nature issued in the case of Kaluram Narwariya, including the petitioner who filed W.P. No. 6385/2015 inter alia contending that he was initially appointed as a daily wage employee on the post of Valveman on 1/9/1990. He was classified by the order dated 15/6/05 on the post of permanent Valveman w.e.f. 1/5/91 with the sanction of letter of Chief Engineer bearing number 1915/ LFkk / dated 2/4/05 and those of Engineer-in-Chief bearing number 1139/ dated 3/2/2003 and number 9603/steno/ v-;- (iz'kk-) dated 17/12/2003 .The petition was disposed of by the order complained of and it was directed that the directions contained in Kaluram Narwariya's case shall apply mutatis mutandis to the case of the petitioner.
5. It appears that the State Government tested the justifiability of the order passed in W.A. No. 110/2011 and connected matters based whereupon the order of Kaluram Conc. No. 1222/2016 (6) Narwariya's was passed. The SLPs were dismissed by the Hon'ble Apex Court and, as such, the said order has attained finality.
6. At this juncture, it is relevant to mention that in the year 2011, respondent no.4, without any notice and opportunity of hearing, had passed an order dated 22/7/11 cancelling the order whereunder 57 daily wage employees had been classified as permanent employees, with the strength of letters of Superintending Engineer no. 3826/estb/dated 19/7/11, of Chief Engineer bearing number 3643/Estb/dated 18/7/11 and that of Engineer-in-Chief bearing number 6206/estab/vjkt-/ dated 15/7/11, purportedly on the ground that conferment of status of permanent employee on such employees was not against vacant posts. Respondent no.4 issued series of such orders including the one bearing number 68/Estt./EE/PH/ED/Mechanical/Division/Gwalior dated 8/8/2011 whereunder permanent status of employees was withdrawn. The aforesaid order was challenged in W.P. No. 6037/2011 (Vijay Kumar Jain Vs. State of M.P. & Others). The learned Single Judge, vide detailed order dated 14/12/11 quashed the order dated 8/8/11 relying upon the order of Division Bench in W.P. No.4361/2007 (Water Resources Department and others Vs. Vindo Kumar Shrivastava) wherein Division Bench of this Court, under similar facts and circumstances, had opined as under:-
" Thus, as per the definition, an employee can be classified as a permanent employee even though he was not appointed against a vacant post. The words 'vacant post' is nowhere provided under clause 2(vi) and, therefore, the employee can be classified as a permanent employee even in absence of 'vacant post' as provided under clause 2(vi) of the M.P. Industrial Employment (Standing Orders) Rules, 1963."Conc. No. 1222/2016 (7)
The aforesaid judgment of Division Bench had been tested by the respondents' department before the Hon'ble Apex Court and the SLP arising therefrom i.e. SLP (C) No. 9347/2010 was dismissed on 9/7/2010. The petitioner in W.P. No.6037/11 had preferred a writ appeal (W.A. No. 42/2012) with the grievance that the writ Court ought to have extended the monetary benefits accrued to the petitioner therein by virtue of having acquired the status of classified permanent employee, at par with other permanent employees. The Division Bench vide detailed order dated 30/1/2012 disposed of the writ appeal, operative portion whereof reads as under:-
"In view of the above, the writ appeal is disposed of with a direction that if in pursuance to the direction issued by the learned Single Judge the respondents come to the conclusion that the appellant is eligible for classification, then he would be entitled to get the benefit of regular pay-scale of the post on which he would be classified."
The State of M.P. and other respondents of W.A. No. 42/12 preferred a review petition (R.P. No. 179/2012) seeking review on the issue of entitlement of respondent therein to have classified permanent employee at par with regular employees. The Division Bench rejected the review and held that once an employee had acquired the status of permanent employee by way of classification, he is entitled for salary of regular employee relying upon the judgment of co-ordinate Bench. The relevant part of the order reads as under:-
"The main question for consideration in this Review Petition is that whether after classification an employee is entitled to receive salary of a regular employee. This point has already been decided by the Single Bench of this Court in case of State of Madhya Pradesh and others Vs. Hariram and others, reported in 2008 (3) MPHT 274 and the Divsion Bench has also confirmed the ratio of the decision in the case of Bhaskar Sharma Vs. State of M.P. & Ors. W.P. No. 3657/2008 (S) decided on 12-1-2009. Thereafter, an SLP (Civil) CC 9289/2010 has been filed before the Hon'ble Conc. No. 1222/2016 (8) Supreme Court, that has also been dismissed. Recently, before the Division Bench of Main Seat at Jabalpur, the State Government has also filed bunch of writ appeals arising out of the same issue, which have also been dismissed vide order dated 1-11- 2011. In one of the Writ Appeals i.e. W.A. No. 1266/2010 (State of M.P. & Others Vs. Madan Singh Kushwah), the Division Bench of this Court has held as under:-
"We find that the consideration of the consequences flowing from the unchallenged orders of classification in the impugned order passed by the learned Single Judge is based upon a decision of the learned Single Judge of this Court in the case of State of M.P. And others Vs. Hariram and others, reported in 2008 (3) MPLJ 517. Although in that decision the case reported in Gangadhar Pillai Vs. Siemens Ltd. (supra) has not been considered, but the case of M.P State Agro Industries Development Corporation (supra) has been considered. We do not find any such difference in the aforesaid two Supreme Court decision which would call for a departure from the view taken by the learned Single Judge in the case of Hariram and others (Supra).
Normally if an employee is classified as a permanent employee against a particular post, he should be entitled to all the benefits of that post unless, as held by the Supreme Court, such benefits are excluded either by contract between the employer and employee or by operation of some law. No such contractual or legal restriction has been brought to our notice.
Whether an employee comes by way of normal recruitment process or through the process of classification, the fact remains that both i.e. the normally recruited employee and a classified employee work on the same post and perform the same duties. It cannot be held that the classification has any less effect or force as compared to the normal process of appointment, because the classification is also based upon the law in the form of Standing Orders and as such both employees who have been brought into service through either of the two processes permitted by law, as permanent employees against a particular post, should be Conc. No. 1222/2016 (9) entitled to the same benefits. Taking a contrary view would mean that the employees inducted through classification process would be saddled with an undesirable disability throughout their service, as compared to other employees which may tantamount to violation of the principle of "equal pay for equal work". Our view finds support from another Division Bench decision of this Court reported in the case of State of M.P. Vs. Ram Prakash (1989) JLJ 36.
For the aforementioned reasons, we do not find any good ground to interfere with the order passed by the learned Single Judge.
Accordingly, the writ appeals are dismissed." In this view of the matter we do not find any merit in this Review Petition.
It is informed by the learned Government Advocate that similar matters are pending before the Hon'ble Supreme Court for adjudication. Copies of the orders passed by the Hon'ble Supreme Court in S.L.P. Nos. 8473/2012, 3256/2012, 17998/2010, 17875/2011 and 13278/2011 have also been filed by the State along with the Review Petition. Hence, execution of the order of Division Bench would be subject to the order that may be passed by the Hon'ble Supreme Court in similar cases.
The Review Petition is disposed of accordingly."
7. A number of SLPs were filed by the State Government on the aforesaid question. All the SLPs have been dismissed including the one arising from W.P. No. 4361/07 bearing SLP No. 9347/10 vide order dated 19/7/10 as reiterated in the order of aforesaid writ petition. Thereafter, since the respondents did not comply with the order passed by this Court and the Hon'ble Supreme Court, a number of contempt petitions were filed before the Hon'ble Supreme Court. During the pendency of contempt petitions, the State Government passed an order on 11/3/16 and extended the benefit of regular payscale to 519 such classified permanent employees who were party to 178 SLPs. List of the employees along with SLP Nos. has been annexed by the applicant as Annexure P/5 in the compilation filed separately. It appears that some more Conc. No. 1222/2016 (10) employees filed contempt petition before this Court viz. Conc. No. 553/10 which was disposed of vide order dated 6/10/16 (Annexure P/6) wherein undertaking was given by the respondents that they shall comply with the similar order within two months. Thereafter, it appears that the respondents submitted an undertaking given by Engineer-in- Chief on 17/11/16 to the Additional Advocate General quoted below:-
"izfr] vfrfjDr egkf/koDrk mPp U;k;ky; [k.MihB Xokfy;j fo"k; %& voekuuk izdj.kksa ds laca/k esa A ekuuh; mPp U;k;ky; [k.MihB Xokfy;j esa voekuuk ;kfpdk dzekad 553@2010 ve`ryky 'kkD; fo:) e-iz- 'kklu ,oa vU; esa ikfjr fu.kZ; fnukad 6-10-2016 ds ifjizs{; esa e/;izns'k 'kklu yksd LokLF; ;kaf =dh foHkkx ds vkns'k dzekad 3059@3910@2013@1@34 fnukad 10-10- 2016 }kjk izeq[k vfHk;ark yksd LokLF; ;kaf =dh foHkkx Hkksiky dh v/;{krk esa lfefr dk xBu fd;k x;k A lfefr }kjk fnukad 14@10@2016 ls fnukad 23-10-2016 rd ifj{ks=okj U;k;kyh;u izdj.kksa dh foLr`r leh{kk dh xbZ A leh{kk ds nkSjku lfefr us orZeku 660 voekuuk izdj.ksa ls lacaf/kr deZpkfj;ksa dks og ftl in ij dk;Zjr gSa ml ij dk osru rFkk osru vUrj dh jkf'k nh tkuk mfpr ik;k gS A bu 660 izdj.kksa esa voekuuk ;kfpek dzekad 224@2016 Jh jkefl;k fo:) e-iz-'kklu ,oa vU; rFkk voekuuk ;kfpdk dzekad 225@2016 /keZthr fo:) e/;izns'k 'kklu ,oa vU; ds izdj.k Hkh lfEefyr gSaA lfefr dh vuq'kalk ds ifjis{; esa izeq[k vfHk;ark }kjk 660 voekuuk izdj.ksa esa osru rFkk osru vUrj dh jkf'k ds ,fj;j ds Hkqxrku gsrq izdj.k 'kklu dks izsf "kr fd;k x;k A izdj.k esa yxHkx 24 djksM :i;s dh jkf'k dk Hkqxrku fd;k tkuk gS A vr% 'kklu }kjk izdj.k Lohd`fr gsrq foRr foHkkx dks izsf"kr fd;k x;k gS A ;gkWa ;g Hkh mYys[kuh; gS fd nSfud osru Hkksfx;ksa dks osru o vU; ykHk Hkh fn;s tk,a ds laca/k esa ,d ;kfpdk mPpre U;k;ky; esa yafcr gS A bl ;kfpdk dh lquokbZ fnukad 18-10-2016 dks gks pqdh gS ,oa izdj.k vkns'k ds fy;s Conc. No. 1222/2016 (11) lqjf{kr j[kk x;k gS A mPpre U;k;ky; ds fu.kZ; vuqlkj vfxze dk;Zokgh dh tkosxh A d`i;k foHkkx ds fo:) voekuuk izdj.kksa esa mijksDr rF;ksa dk /;ku esa j[krs gq;s izfrj{k.k gsrq vko';d dk;Zokgh djus dk d"V djsa A th-,l- Mkeksj izeq[k vfHk;ark fnukad 17-11-16
8. However, instead of implementing the order passed by this Court and the Apex Court and the assurance given to this Court referreable to the aforesaid communication made to AAG, the respondents have taken a U-turn and resorted to cancellation of status of classified permanent employee, purportedly in implementation of GAD Circular dated 7/10/16 which has been issued for regularization of daily wage employees, but it is strange to note that by an executive order, the statutory rules known as Madhya Pradesh Dainik Vetan Bhogi Karmachari (Seva Ki Shartein) Niyam, 2013 framed by the Governor by way of notification under proviso to Article 309 of the Constitution of India have been repealed, which in the opinion of this Court, is patently illegal, as unless the Rules are repealed by Governor, the same cannot be rendered otiose by executive fiat. Para 5 of the aforesaid circular reads as under:-
"5- e/;izns'k nSfud osru Hkksxh deZpkjh (lsok dh 'krsZa) fu;e] 2013 tks fd lafo/kku ds vuqPNsn 309 ds vUrxZr tkjh fd;s x;s gSa dks fujLr fd;k tkdj fofHkUu fuekZ.k mijksDr dafMdk & 1-1 ls 1-8 ds vuqlkj e/;izns'k vkSn~;ksfxd fu;kstu (LFkk;h vkKk,a) vf/kfu;e 1961 o fu;e 1963 ds vUrxZr bu fuekZ.k foHkkxksa esa dk;Zjr Jfedksa dks vkSn~;ksfxd Jfed ekurs gq, vkns'k tkjh fd;s tk,saxs o lacf/kr foHkkx ds LFkk;h dfeZ;ksa dk fu;eu rn~uqlkj fd;k tk, A "
9. On notice issued to respondent nos. 1 to 4, first compliance report dated 29/1/17 has been placed on record, Conc. No. 1222/2016 (12) wherein a show-cause notice issued to the petitioner dated 28/1/17 was annexed, whereby petitioner was called upon to show-cause as to why his status as classified permanent employee be not withdrawn. In second compliance report dated 9/2/17, the order dated 8/2/17 has been annexed withdrawing classified permanent employee status from the petitioner.
10. Learned counsel for the applicant contends that the aforesaid issuance of show-cause notice and the order of withdrawal of status of classified permanent employee in the backdrop of above detailed narration, in fact and in effect, tantamounts to willful disobedience of the orders of this Court confirmed by the Apex Court and the order dated 15/12/16 passed by Hon'ble Supreme Court in batch of contempt petitions. It is contended that petitioner has been working as daily wage employee since 1990 and has been conferred with the status of classified permanent employee on 15/6/05 under the provisions of M.P. Industrial Employment (Standing Orders) Act which are applicable to the services of the petitioner. The standing order No.2(i) framed thereunder reads as under:-
"2. Classification of Employees - Employees shall be classified as (i) permanent, (ii) permanent seasonal,
(iii) probationers, (iv) Badlies, (v) apprentices and (vi) temporary:
(i) A 'permanent' employee is one who has completed six months' satisfactory service in a clear vacancy in one or more posts whether as a probationer or otherwise, or a person whose name has been entered in the muster roll and who is given a ticket of a permanent employee;"
(Emphasis supplied) It is submitted that the aforesaid status cannot be withdrawn at this distance of time after more than 12 years for the reason that the classification as permanent employee was not against Conc. No. 1222/2016 (13) clear vacant post and allegedly no rule or procedure was followed. It is contended that clause 2(i) is in two parts viz.(a) an employee who has completed six months' service in a clear vacancy in one or more posts whether as a probationer or otherwise is a "permanent employee"; and (b) or a person whose name has been entered in the muster roll. It is contended that a person who has completed six months satisfactory service and whose name has been entered in the muster roll is also entitled for status as permanent employee. Therefore, if his name appears in the muster roll, an employee can be declared a permanent employee even without vacant post. Specifically, no procedure has been prescribed under the Standard Standing Orders which can be said to have been violated in the matter of issuance of order for classification as permanent employee. In any case, similarly situated employees are continuing in services with permanent status and drawing salary. As such, there is serious violation of Articles 14 and 16 of the Constitution of India It is submitted that the impugned order, in fact and in effect, is not only in violation of the order complained of but also tantamounts to intentional disobedience of the order dated 15/12/16 passed by the Hon'ble Supreme Court in batch of contempt petitions, arising out of identical matter, wherein it has been held that a permanent employee has right to receive pay in the graded pay-scale but only minimum of the said pay scale with no increments and it is only after regularization in service which would entitle him grant of increments etc.in the pay-scale. The Apex Court did not direct the respondents to review and cancel the order of classified permanent employee. As a matter of fact, respondents did attempt to question the status of classified permanent employee before the Hon'ble Supreme Court in contempt petitions by contending that 520 employees have gained entry in service through backdoor as Conc. No. 1222/2016 (14) they were not appointed on regular post against regular vacancy and after following the requirement of statutory procedure. Such employees like petitioner cannot seek regularization and benefits emanating from such regularization in view of judgment of the Supreme Court in the case of State of Karnataka Vs. Uma Devi ((2006)4 SCC 1). Respondents, at the same time, had also contended before Hon'ble Supreme Court that they have complied with the directions of the High Court in a bonafide manner against which SLPS have been dismissed. Further, if petitioners feel that they were entitled to something more than what was granted by the State Government, they were free to challenge the order passed by the Government fixing their pay, by taking recourse to substantive proceedings but not in form of contempt petition. Respondents also referred to the so called policy of the State Government dated 7/10/2016 relating to one-time scheme for regularization of daily wage employees.
Upon consideration of the aforesaid pleas, the Hon'ble Supreme Court has ordered for extension of benefit of minimum of payscale of a regular employee and further directed that the employee would be entitled to increments only after regularization. By the said decision of the Apex Court, a distinction has been drawn between regular employee and classified permanent employee.
11. Per contra Mr. Manoj Govil, Principal Secretary, has argued the matter himself and the remaining respondent nos. 2 to 4 have adopted the submissions so advanced. He submitted that issuance of show-cause notice dated 28/1/17 and the order dated 8/2/17 withdrawing the status of classified permanent employee is by virtue of liberty given by this Court while disposing of W.P.No. 6385/15 which reads as under:-
Conc. No. 1222/2016 (15)Resultantly, this petition is disposed of by following directions :-
(1) The petitioner shall file a fresh representation before respondents along with the proof of acquiring permanent status by way of classification. The respondents shall verify and if petitioner's permanent status remains intact, he shall be given similar treatment, i.e., grant of regular pay scale attached to the permanent post from the date of classification as permanent employee.
(2) The respondents shall also grant increments attached to the pay scale and if rules permit, extend benefit of DA in favour of the petitioner.
(3) The respondents shall also pass a speaking order regarding claim of grant of seniority to the petitioner from the date of classification as permanent employee.
(4) If for any justifiable reason, the petitioner is not found entitled for any of the benefits claimed, a detailed and reasoned order be passed and communicated to the petitioner. The aforesaid exercise be completed within 120 days from the date of production of copy of this order along with the representation.
(5) It is made clear that it will not be open to the respondents to deny relief to the petitioners on the ground that they were not litigants in W.A. No. 1266/2010 and other similar matters, which were decided on merits, if they are otherwise similarly situated. Petition is disposed of."
Hence, no contempt is made out as the order complained of is complied with. He further submitted that the impugned order has been passed after issuance of show-cause notice. The order is self contained and explanatory. If petitioners are aggrieved by the order passed, they are free to assail the same on merits by instituting fresh proceedings before appropriate forum.
12. Shri Govil also tried to justify the order passed on merits reiterating twin reasons given in show-cause notice referred Conc. No. 1222/2016 (16) above. He further contended that even if petitioner's status as classified permanent employee is withdrawn, he has not been removed from service and under the new policy dated 7/10/16 continues to be daily wage employees. Besides, in terms of clause (4) of the order complained of, the respondents were required to pass a detailed reasoned order within 120 days from the date of production of copy of the order along with representation if petitioner was not found entitled to any of the benefits claimed. It is submitted that though the order was not passed within the said period, however, no sooner the batch of contempt petitions (Contempt Petition (Civil) No.771/2015 and connected matters) was disposed of by the Hon'ble Supreme Court, the aforesaid exercise has been undertaken. With the aforesaid submissions, Shri Govil contended that the contempt petition deserves to be dismissed.
13. Heard.
14. The law of contempt is based on sound public policy of punishing any conduct which shakes the public confidence in the administration of justice.
15. Under the common law definition, "Contempt of Court"
is defined as an act or omission calculated to interfere with due administration of justice. This covers criminal contempt (i.e. acts which so threaten the administration of justice that they require punishment) and civil contempt (disobedience of an order made in a civil cause). Section 2 (a) and (b) of the Contempt of Courts Act defines the contempt of Court as follows:-
"2. Definitions.- In this Act, unless the context otherwise requires,-
(a) "contempt of court" means civil contempt or Conc. No. 1222/2016 (17) criminal contempt;
(b) "civil contempt" means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court;
(c) "criminal contempt" means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which-
(i) .... ..... .......
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;
(d) xxxxxxx"
16. Rankin CJ in Anantalal Singh v. Alfred Henry Watson, AIR 1931 Cal. 257 has observed that the jurisdiction in contempt is not to be invoked unless there is real prejudice which can be regarded as a substantial interference with the due course of justice and that the purpose of court's action is a practical purpose and it is reasonably clear on the authorities that the Court will not exercise its jurisdiction upon a mere question of propriety. Rizwan-Ul-Hasan and another v. State of Uttar Pradesh, AIR 1953 SC 185 referred to.
17. The judiciary is the guardian of the Rule of Law. Judiciary is to perform its duties effectively. The dignity and authority of the Courts have to be respected and protected at Conc. No. 1222/2016 (18) all costs. For this purpose, the Courts are entrusted with the extraordinary power of punishing those who indulge in acts whether inside or outside the Courts, which tend to undermine their authority. In reference: Vinay Chandra Mishra, (1995) 2 SCC 584.
18. The Constitution of India empowers the Supreme Court and each High Court to punish contempt of itself under Article 129 and 215 of the Constitution of India. The Contempt of Courts Act, 1971 has empowered the Courts to punish actions which fall within the definition of civil and criminal contempt as defined therein. (J.R.Parashar Vs. Prashant Bhushan, (2001) 6 SCC 735 referred to).
19. While dealing with the application for contempt, the Court is really concerned with the question whether the earlier decision which has received its finality has been complied with or not. It would not be permissible for a Court to examine the correctness of the earlier decision, which had not been assailed and to take a view different than what was taken in the earlier decision and likewise any party required to comply with or implement the order so passed cannot avoid compliance purportedly in its opinion that the order so passed is against the rules or that its implementation is neither practicable nor feasible and to address the aforesaid issues a party is required to seek audience or invoke jurisdiction of the appellate court. Right or wrong the order has to be obeyed. Flouting an order of the Court would render the party liable for contempt. ( Prithawi Nath Ram v. State of Jharkhand and Ors., (2004)7 SCC 261 referred to).
20. Upon careful perusal of the relevant part of order passed in Kaluram Narwariiya's case quoted in the order complained of Conc. No. 1222/2016 (19) relying on judgment of Division Bench of this Court in the case of State of M.P. Vs. Ram Prakash (1989 JLJ 36) reiterated in the order passed in W.A. No. 110/2011 and connected matters, it is clear that whether an employee becomes permanent through normal recruitment process or through the process of classification, they work on the same post and perform same duties. The fact of classification by itself has no lesser effect or force as compared to the normal process of appointment. Therefore, the permanent employees by both the aforesaid two processes are entitled for same benefits on the principle of Equal Pay for Equal Work. The aforesaid judgment is confirmed in SLP No. 20025/2011. As such, the classified permanent employees were held to be at par with the other permanent employees in the matter of monetary benefits Therefore, the controversy relating to monetary benefits and seniority on the principle of Equal Pay for Equal Work was, accordingly, resolved and petitioner was required to file a representation in that behalf and the same was required to be considered and decided on merits. Under clause (4) of the order complained of, a liberty was granted to the respondents that if respondents have any justifiable reason to deny the benefits, a detailed and reasoned order was to be passed and communicated to the petitioner within 120 days from the date of production of copy of this order along with representation. The order complained of is dated 23/9/15. The same was communicated to the respondents on 30/9/15. Show-cause notice has been issued on 28/1/17 and the order of withdrawal is dated 8/2/17. No application was filed seeking extension of time for invoking the liberty granted by this Court in clause (4) above. That apart, once entitlement of identically situated employees in the matter of paycale, seniority etc., by virtue of classification as permanent employee has been addressed in the context of law laid down by the Division Bench of this Court Conc. No. 1222/2016 (20) reported in the case of Ram Prakash (Supra) and was confirmed by the Apex Court, respondents were required to pass an order as regards entitlement of aforesaid benefits and not the order of withdrawal of classified permanent employee status in the facts and circumstances of the case, that too after the Hon'ble Supreme Court, while dealing with batch of contempt petitions (Contempt Petition (Civil) No. 771 of 2015 and connected matters), vide order dated 15/12/16, had negated the contention advanced in the context of vulnerability of status of classified permanent employee. The Apex Court, precisely in paragraph 15 of the said order, had formulated the question to be addressed which is reproduced as under:-
"15. Insofar as petitioners before us are concerned they have been classified as 'permanent'. For this reason, we advert to the core issue, which would determine the fate of these cases, viz. whether these employees can be treated as 'regular' employees in view of the aforesaid classification ? In other words, with their classification as 'permanent', do they stand regularized in service ?;
and in paragraph 23 had answered the same to the following effect:
"23. From the aforesaid, it follows that though a 'permanent employee' has right to receive pay in the graded pay-scale, at the same time, he would be getting only minimum of the said pay-scale with no increments. It is only the regularization in service which would entail grant of increments etc. in the pay-scale."
21. There is substantial force in the submissions of counsel for the applicant that the subsequent maneuvered exercise of issuance of show-cause and order of withdrawal of classified permanent employee status was with a calculated intention to circumvent the order passed by the Hon'ble Supreme Court and tantamounts to obstruction in the course of administration of justice resorting to colorable exercise of power.
Conc. No. 1222/2016 (21)In the opinion of this Court, in fact, the aforesaid attempt is an act of transgression and is in excess of the liberty granted by this Court in clause (4) of the order complained of, as quoted above. As such, the order impugned is an attempt to stultify the order of this Court, as well as, that of the Apex Court. Further, once the State Government has passed the order on 11/3/16 implementing Hon'ble Apex Court's order in the matter of fixation of payscale to similarly situated employees who were party to SLP No.21827-28/12 and other SLPs, the respondents, cannot, in any manner whatsoever, be said to be justified having resorted to the misadventure issuing the order of withdrawal of petitioner's classified permanent status. Moreover, the classified permanent status was accorded to the petitioner by the order of Executive Engineer dated 15/6/05 with the authority of the order of Chief Engineer dated 2/4/05 and that of Engineer-in-Chief dated 3/2/03 and 17/12/03. So far, none of the aforesaid orders have been cancelled or rescinded. Therefore, the impugned order is found to be a maneuvered exercise to deny the legitimate claims to the petitioner as awarded by the Hon'ble Supreme Court in contempt petitions and is an apparent act of betrayal of the order of this Court, as well as, that of Hon'ble Apex Court despite the undertaking given by Engineer-in-Chief on 17/11/16 to the Additional Advocate General, as quoted in paragraph 7 above. It also needs to be mentioned that respondents had resorted to a similar futile exercise in the year 2011 while they cancelled the classified permanent status of 57 similarly situated employees by orders dated 22/7/11 and 8/8/11. The same was quashed by the writ Court in W.P. No. 6037/11 vide order dated 14/2/11 and affirmed by the Division Bench and maintained by the Apex Court. Thereafter, the respondents have issued the orders in favour of 519 employees who were involved in 178 SLPs in the matter of Conc. No. 1222/2016 (22) conferment of permanent status and payment of corresponding monetary benefits.
22. Further, repeated reference to the policy document dated 7/10/16 to justify the impugned notice dated 28/1/17 and order dated 8/2/17 is totally misdirected and misconceived. Admittedly, provisions of M.P. Industrial Employment (Standing Orders) Act, 1961 and rules framed thereunder are applicable to the services of the petitioner as there is no notification under section 2(2) of the said Act exempting the respondents' department from application of the said Act. That apart, the Rules viz. Madhya Pradesh Dainik Vetan Bhogi Karmachari (Seva Ki Shartein) Niyam, 2013 cannot be declared superseded through circular or policy document; an executive fiat, unless there is a notification by the Governor repealing the rules as the power to frame rules is constituent in nature and legislative in character, subject to legislation by the state legislature under Article 309 of the Constitution. Further, even otherwise, application of aforesaid policy to classified permanent employees after more than 11 years of service withdrawing their status as such and declaring them as daily wage employees, with no benefit of continuity of service including monetary benefits and treating them afresh is an onslaught on the settled rights of such employees. The Hon'ble Apex Court has taken note of the status of classified permanent employees in similar matters and directed for payment of minimum of payscale in the graded-pay scale and further directed for payment of increments after regularization. Under the circumstances respondents' actions are contemptuous as they tend to circumvent the order passed by this Court as well as the Hon'ble Supreme Court and intend to interfere and obstruct the course of justice.
Conc. No. 1222/2016 (23)23. Under somewhat similar circumstances, the Hon'ble Supreme Court, in the case of T.R.Dhananjaya Vs. J.Vasudevan ((1995)5 SCC 619) has held the contemnor guilty of criminal contempt of Court and punished the contemnor with simple imprisonment of one month.. The order complained of in the said case reads as under:-
" The applicant, Dhananjaya, apprehends that by virtue of the orders passed by this Court in the above appeal, it may be construed that he is not entitled to the benefits arising out of the orders passed by the Division Bench of the Karnataka High Court as confirmed by this Court referred to above. It is clarified that this Court did not intend to upset the rights given to the applicant, Dhananjaya by virtue of the order passed by this Court in the above appeal. He will be entitled to all the benefits flowing from those orders. Under these circumstances, whatever rights that have been accrued to the applicant, Dhananjaya, he is entitled to all the benefits, and to effectuate the said rights, if it is necessary, it may be open to the Corporation to create supernumerary post for the period in question and give the benefits to the applicant for which he is entitled as per the judgment of the Division Bench. The State Government is directed to issue necessary orders in this behalf.
It is further clarified that this clarification does not have the effect of construing that the appellant, Dasegowda will not be entitled to the status and pensionary benefits as flowing from the order passed by this Court in the appeals."
The relevant paras containing the observations of the Hon'ble Apex Court read as under:-
"10.When this order was passed, what remained for the respondent was only implementation of the order passed by this Court in furtherance of the action taken thereunder by the Corporation. It is now clear that instead of implementing the order, an attempt has been made to circumvent the same and deny the benefits to the petitioner. As stated earlier, the petitioner is a Corporation employee and the stand of the Government appears to be to give benefit to their Conc. No. 1222/2016 (24) employees. So, an attempt has now been made to get into the rule position and to find whether the petitioner is eligible to be considered for promotion to the post of Executive Engineer, Superintending Engineer and Chief Engineer. It is now stated that according to the rules the petitioner would be eligible only as Superintending Engineer and not as Chief Engineer. When direction was given in I.A. No. 3 of 1993, the Government was a party to the proceedings and it was never brought to our notice that the petitioner was not eligible. On the other hand, the Division Bench of Karnataka High Court upheld the right of the petitioner which became final.
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 I.A. No.3 filed by the petitioner, it was not brought to our notice that the petitioner was not eligible for promotion, in contra-distinction with Dasegowda, or any other. When the claim inter se had been adjudicated and the claim of the petitioner had become final and 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 legitimize 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.
13. Having considered these contentions and given our due consideration, we think that there is no justification to accede to the contentions raised by the learned counsel to take a lenient view. The reasons are obvious. As stated earlier, pursuant to the orders passed by this Court the Government had passed an order directing the Corporation to implement the order. When the Corporation had passed a resolution creating a supernumerary post and to fill that post by accommodating Dhananjaya with consequential benefits, the Government was only to give effect to the order as passed by this Court on 26-7-1993. But instead of giving effect to Conc. No. 1222/2016 (25) the resolution, the Government volte- face exercised the power to see that the order is not given effect to. If the respondent had really harboured under any doubt, he would have asked for clarification. Instead, the Court was prayed for extension of time on 10-5- 1995 for compliance which accordingly was given.";
24. In view of the aforesaid facts and circumstances of the case, this Court has no hesitation to conclude that respondents, with calculated intentions, intended to defy the order passed by this Court and that of the Hon'ble Supreme Court and thereby have made inroads in the administration of justice. The effect of contemptuous act, in fact, is to render the order passed by this Court and that of the Hon'ble Supreme Court in identical matters otiose. Hence, respondents are held to have committed contempt of Court.
25. Hence, notices be issued to the respondents to address on the question of quantum of punishment.
Notices be made returnable by 20/3/17.
26. List on 21/3/17.
(Rohit Arya) Judge (and)