Jammu & Kashmir High Court
Mohd. Shafi Pandit vs Mohd. Yousuf Magray And Ors. on 9 April, 2003
Equivalent citations: 2003(3)JKJ313
JUDGMENT Syed Bashir-Ud-din, J.
1. On 30.12.2002, in Contempt proceedings 443/01, Ld. Single Judge, after taking note of alleged release of Rs. 65 lacs by the respondents to meet the liability of the petitioner employees of CONFED, ordered that the grants so released be utilized to disburse/adjust the arrears of the employees within a period of 15 days (Annexure-B). However, when the matter came again on board on 4.2.2003, the Ld. Single Judge again directed implementation of the above order qua disbursement of employees arrears. While doing so, the objections raised thereto by respondents in CMP No. 136/03 were overruled (Annexure-A).
2. Again these two orders the respondent - State and its authorities have preferred this LPA.
3. The Ld. Counsel for respondents to this appeal Mr. A.M. Dar has raised preliminary objections to the maintainability of the appeal as also contested the appeal on merits, inasmuch as, the counsel submits that an appeal in contempt can only lie Under Section 19 of the J&K Contempt Court Act, 1997, when an order or judgment is passed by the Ld. Single Judge to punish for the contempt. However in this case no such order has been passed and there is no finding recorded that this is a case of wilful disobedience of the order/direction of the court. On merits the counsel submits that the State Government and its authorities respondents to the writ petition are under a duty to pay/disburse the salary/wages to the employee of the CONFED and the respondents cannot evade or by-pass payment of arrears of salary and wages to the employees on any pretext. It is no defense to refuse to pay the employees on the premise that CONFED is running in Red.
4. The Ld. Counsel for appellant, Mr. H.I. Hussain contests the submissions of the respondents counsel. His contention is that the two impugned orders, Annexures A&B, though ex-facie shown to have been passed in contempt are not so passed. Direction dated 30.12.2002 for disbursement/ adjustment of released grant/loan towards CONFED employees (Petitioners) arrears, is not an order or direction taken within its sweep by contempt proceedings and order dated 4.2.2003 reiterating and stressing implementation of the earlier said direction, while dismissing the objections of the other side (the respondents to the writ petition), CMP No. 1346/03, are orders/directions, not covered by the J&K Contempt Act. Both these orders are beyond the para-meters of the contempt law. The two orders are passed on merits of the case and answer the description of the judgment within the meaning of Clause 12 of the J&K Letters Patent Act. The two orders are in essence passed in the proceedings under Section 103 of J&K Constitution corresponding to Article 226 of the Indian Constitution. Thus contended the counsel submits that preliminary objection qua non-maintainability of the LPA, is misplaced and cannot hold the ground.
5. So far as the merits are concerned the counsel submits that the two orders have been passed after ignoring the earlier interim direction dated 10.10.2002 in the main writ petition and direction dated 26.9.01 in and while disposing of earlier contempt No. 197/01. Besides the statement of facts/objections placed before court by the respondents in CMP No. 136/03 (Annexure-J) to pray for modification of earlier interim order of 10.10.2002, on record statement & annexures, reply to main petition and Cabinet decision to wind-up the CONFED inter alia on offer of golden shake hand to its employees have not been looked into and considered. All this has led to passing of the impugned orders which are unjustifiable and unsustainable under law. The scope of the contempt proceedings has been widened in the sense to include matters not covered by contempt proceedings or the contempt law.
6. A few facts need to be taken note of necessarily as under:-
Respondents to this appeal employees of the CONFED filed writ petition (SWP NO. 1839/99) and prayed for the following reliefs:-
"In view of the submissions made hereinabove it is humbly prayed that by issuing appropriate writ or direction the respondents be directed:-
(i) To absorb the petitioner-employees and adjust them in various Government ? Departments commensurate to their status.
(ii) To release the salary/pay dues of the employees of the CONFED particulars whereof are contained in annexure.
Any other relief which this Hon'ble court thinks just and proper be granted to the petitioners".
7. In reply affidavit (Annexure-F), the right of these employees to seek the prayed relief is contested. State of J&K and its authorities have inter alia contended that the earlier cabinet decision dated 17.7.1999 providing forwarding up of the CONFED and adjustments of its staff has been withdrawn and modified by subsequent Cabinet decision dated 24.4.2002. this latter cabinet decision provides for winding up of the CONFED and offers golden hand shake to its employees and recovery of loans advanced by the State Government to CONFED from sale of its Assets. This Cabinet decision is challenged by CONFED employees in the present writ petition. The petitioners before writ court and the respondents to this appeal are in reality employees of the CONFED and are not all employees of the State Government. The State Govt. and its authority cannot be held liable and forced to pay these employees be it, salary/wages. The CONFED has its own legal existence as a Society under J&K Co-operative Societies Act, 1989. The State Govt. has been advancing loans to the CONFED which the CONFED may have been or has been diverting to meet salary/wages of its employees. The CONFED has been running most uneconomically for some time past and is in red facing a critical financial crises. It is in this context that the cabinet took the decision to wind up the CONFED and offer golden hand shake to its employees on realizing the finances from sale of the Assets of the CONFED, after adjustment of its liabilities and loans.
8. The court while admitting the writ petition to hearing on 10.10.2002, passed the following order:-
"Petition is admitted for hearing. Counter affidavit within four weeks. The respondents shall take steps for release of salary, of course, subject to the impediments."
9. Employees writ petitioners moved contempt Petition No. 443/01 with the prayer that the respondents-contemnors being guilty of violating order dated 26.9.01 may be punished with allegations that the earlier contempt petition No. 197/01 was disposed of on 26.9.01 on representation of the Government, after it released 30 lacs towards the Employees salary/wages and court order directed release of the balance amount. The petitioners were given liberty by the order to re-activate the contempt proceedings whenever such an eventuality arose. The order dated 26.9.01 is not implemented in full as balance salary/wages is not released. Hence this contempt motion.
10. In Statement of facts/reply filed by respondent-contemnors (Annex-ure-H) the respondents, in particular State Govt. has contended that the liability to pay the salary to its employees is of CONFED. There is no order, rule or regulation which obliges Government to meet the expenses incurred on salary of the employees by the CONFED. They are not employees of the State Government. They are neither appointed nor adjusted by State Government. They cannot be liability of the State Govt. land the State Govt. is not liable. The direction of the court if any, of September 26, 2001 has merged with interim direction given on October 10, 2002 at a time when the main petition was admitted to hearing. Besides the State Govt. is not in a position to implement the order inasmuch as, the State Govt. cannot divert its finances primarily got as tax payer's money, for payment to the employees of the CONFED. The Ld. Counsel for the appellants submits that the State Govt. has so far lent a total of Rs. 270.21 lacks to CONFED and further request of agriculture/co-operative department to finance department for release of 65 lacks as loan to CONFED, has not been acceded to pursuant to the aforementioned cabinet decision. Registrar Co-operative was appointed as official liquidator for liquidation of the Assets of the CONFED for satisfying the liabilities towards the employees and State Govt. However, the respondents' employees of the CONFED have brought the proceeding to a grinding hault by getting a restraining order from Spl. Tribunal under J&K Co-Operative Societies Act, The State Govt. in such circumstances is not in a position to pay for the salary/wages of the employees. Previously State Govt. has been arranging funds by way of loan and has been also advancing/lending loans to support CONFED. Out of the receipts loans salary/wages of the employees ending February 1999 have been paid. But now on Govt. is not in a position to do so any further. It is in this background that the writ court while admitting writ on 10.10.2002, had expressly provided; respondents shall take steps for release of salary of course "subject to the impediments." The counsel submits that the above facts brought to the notice of Ld. Single Judge in fact constitute' impediment' to release of the salary of employees but unfortunately this aspect of the case has not been at all taken note of much less considered in the impugned order. All other orders including that of 26.9.01 while disposing of contempt No. 197/01 made basis of the impugned orders dated 30.12.2002 in contempt petition No. 443/01, have in the last analysis merged with the above order dated 10.10.2002 and all actions(s) assailed in contempt have to be judged in the context of this order. In other words respondents were to take steps for release of the salary, "subject to the impediments". The above legal and factual impediments as placed before the court in statement of facts (Annexure-H). Reply to main petition (Annexure-F) and motion for amendment of the order dated 30.12.02 in CMP No. 136/03 (Annexure-I) were required to be considered by the Ld. Single Judge when it was to decide the question of contempt. All these aspects and decisive features of the case have not been taken note of, yet direction has been passed for implementing the earlier direction of arranging to pay the salary/wages of the employees. The motion for modification/amendment of the order (CMP No. 136/03) has been brushed aside with the observations "...apparently there is no error in the order. Mr Watali prays for time to comply with the order on the ground of non-availability of the funds. The excuse submitted is not impressive and in any case non-availability of funds cannot be accepted as a ground to refuse the legitimate wages and salary of the employees of the CONFED, an organization of the State Government..."
11. Notice is taken on record that the basis of the impugned order dated 30.12.2002 is the communication of Secretary to Govt. Co-operative Department. It is spelt to indicate that Rs. 65 lacs has been released for payment of wages/salary to such of the employees of the CONFED to whom such wages/salary is due. However, we find it not so. This communication from Agriculture Co-operative Department is for sanction of Rs. 65 lacs as loan to the CONFED which has not been acceded to by the Finance Department and State Government. The communication nowhere refers to the amount for disbursement of the wages/salary of the unpaid employees of the CONFED. We feel that the Ld. Single Judge has been made to believe by the petitioners that the amount has been sanctioned for release of the wages/salary of these employees "as admitted position". We find it on record untrue and without any factual basis. Perusal of the motion for amendment/alteration (CMP No. 136/03), reply of main petition (Annexure-F) and statement of facts (Annexure-H) give graphic position of the critical financial position of the CONFED. It also reveals that the State Govt. and its authorities under directions to take steps for release of salary subject to 'any impediments', is not an unqualified direction of the court which in all eventualities would leave no option with respondents except to pay the salary and wages of the employees of the CONFED, when CONFED itself is primarily responsible to meet the liability. This aspect of the matter need to be addressed to and considered in the context of the cabinet decision of winding up of the CONFED and offer of Golden hand shake to its employees Finances to meet the liability was to come from the realizable Assets of the CONFED. As follow up of this Cabinet decision Registrar Co-operative has been appointed Official Liquidator who initiated proceedings. But writ petitioners CONFED employees have stalled the proceedings by obtaining stay from the Tribunal. Yet writ petitioners are pursuing the writ to get whatever they can eve out as salary and wages, notwithstanding as averred in the LPA when these employees are not at all working or doing anything, except litigating for last several years.
12. Viewed thus the order dated 4.2.2003 and order dated 30.12.2002, cannot be said to have been passed in exercise of contempt jurisdiction. The orders are in fact passed in proceedings under article 226 notwithstanding, that the rejection of the motion for amendment/alteration of the earlier interlocutory direction CMP No. 136/03, is unsustainable.
13. The impugned order is a judgment within the meaning of Clause 12 of the J&K Letters Patent Act. The nature and the range of the order shows that the merits of the question, inter se the parties qua determination of liability of the respondent State and its officials to pay for the salary/wages and the right of the employees respondents to the appeal to receive such wages/salary is determined by the impugned order(s). The word judgment is used variously in different clauses of the Letters Patent Act. In the facts and circumstances of this case, order impugned is a judgment amenable to appeal within the meaning of Clause 12 of J&K LP.
14. Against the order(s) appeal under Section 19 of the Contempt Act of 1997, is not maintainable inasmuch as, by the order(s) in question, the State or any of its officer/official is not punished for Contempt of Court. Even it is not stated that there has been any willful disobedience on the part of the respondents or alleged contemnors. If so the impugned orders fall beyond the range and ambit of contempt law and the proceedings, so as to treat the orders as amenable to exercise of powers under Letters Patent as applicable to J&K in proceedings under Article 226 of the Constitution. The contempt jurisdiction cannot be bend so as to issue fresh direction(s) from time to time or pass such of the orders which in fact stall in full or part the operation of the earlier operable direction(s) on record. In J.S. Parihar v. Ganpat Duggar, AIR 1997 SC 1123, a three member bench of the Apex Court held that even if any appeal is not maintainable under the contempt of courts Act 1971, yet the appeal before Letters Patent bench is maintainable under the Letter Patent as LPA, as in that case the order would be deemed to have been passed in the writ proceedings. After all fresh directions cannot be given in contempt proceedings as passing of such directions is not part of the proceedings or orders under law of contempt. It would be of benefit to quote from the judgment as under:-
"...It is seen that, admittedly, the respondents had prepared the seniority list on 2.7.1991. Subsequently promotions case to be made. The question is whether seniority list is open to review in the contempt proceedings to find out, whether it is in Conformity with the directions issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by Court, there arises afresh cause of action to seek redressed in an appropriate forum. The preparation of the seniority list may be wrong or maybe right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the wilful violation of the order. After re-exercising the judicial review in contempt proceedings, afresh direction by the learned single Judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act. Therefore, the Division Bench has exercised the power under Section 18 of the Rajasthan High Court ordinance being a judgment or order of the single Judge, the Division Bench corrected, the mistake committed by the learned Single Judge. Therefore, it may not be necessary for the State to file an appeal in this Court against the judgment of the learned Single Judge when the matter was already seized of the Division Bench."
15. In result, on the aforesaid view of the matter, we allow the appeal and set aside the impugned orders.