Himachal Pradesh High Court
Smt. Bhadra Sheela vs Of on 27 September, 2016
Bench: Chief Justice, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA COPC No. 30 of 2016 .
Reserved on: 19.9.2016 Date of decision: September 27, 2016.
Smt. Bhadra Sheela .....Petitioner.
Versus
of
Sh. A.N.Rai and others .....Respondents.
Coram
rt
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1Yes For the Petitioner : Ms. Archana Dutt, Advocate.
For the Respondents : Mr. Ashok Sharma, Assistant Solicitor General of India, with Mr. Adarsh Sharma, Advocate, Tarlok Singh Chauhan, Judge.
The petitioner has filed this Contempt Petition under Section12 of the Contempt of Courts Act (for short 'Act') alleging therein that the respondents have deliberately and intentionally disobeyed the judgment passed by this Court on 27.3.2008 in CWP No. 780 of 2004 and thereby made themselves liable for being punished and prosecuted under the Act.
2. It is averred that the petitioner while working as a Senior Telecom Officer Assistant (General) was wrongly denied her promotion to the post of Junior Telecom Officer (for short 'JTO') against the 15% quota provided for the departmental candidates through a competitive Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 21:18:42 :::HCHP 2examination. The petitioner filed CWP No. 780 of 2004, which was allowed by this Court vide judgment dated 27.3.2008 and the .
respondents were directed to consider her case for promotion to the aforesaid post from the due date against 19 available vacancies till the year 1999 within a period of six weeks.
3. It is not in dispute that not only the review, but the LPA No. of 65 of 2008 and SLP (C) No.15390 of 2015 assailing the aforesaid order have all been dismissed, meaning thereby that the judgment rendered by rt this Court in CWP No. 780 of 2004 has attained finality. The grievance of the petitioner is that despite the judgment having been attained finality, the respondents have failed to implement the same, thereby making themselves liable for being dealt with under the Act.
4. The respondents have filed their reply wherein at the outset they have tendered unconditional apology. However, on merits, it has been averred that not only the judgment passed by this Court has been implemented in its letter and spirit, rather the petitioner has wrongly been promoted from anterior date and that apart, due to inadvertence on the part of the department has also been paid the excess amount of `2,26,856/-. This position is contested by the petitioner by filing rejoinder wherein it is alleged that the A.G.M.(Admn.) of the department had ordered the grant of all benefits to the petitioner w.e.f. 2.9.2002 and the same being a conscious decision, therefore, the respondents at this stage cannot take u-turn and deny the benefits or else that would aggravate the contempt already committed.
We have heard learned counsel for the parties and also gone through the records of the case carefully and meticulously.
::: Downloaded on - 15/04/2017 21:18:42 :::HCHP 35. It is not in dispute that the Senior Telecom Officer Assistant (General) is the feeder category for promotion to the post of JTO and the .
services are regulated by the Rules called "The Junior Telecom Officers Recruitment Rules, 1956". In terms thereof, 50% vacancies of the posts of Junior Telecom Officers are required to be filled up by way of direct recruitment, whereas the remaining 50% by way of departmental of promotion/transfer of vacancies. As regards, the bifurcation of 50% quota for the departmental promotion, 15% posts of these are to be filled up by rt promotion of departmental candidates, through a competitive examination.
6. It is further not in dispute that even as per the judgment rendered by this Court, the case of the petitioner was required to be considered against 15% quota against 19 available vacancies till the year 1999. However, it is the specific case of the respondents that instead of considering the case of the petitioner under 15% quota, they erroneously considered her case under 35% quota and thereby the petitioner has not only been promoted from anterior date, but has also erroneously been paid an excess amount of `2,26,856/- as would be evident from para-2 of the reply, which reads thus:
"2. That it is humbly submitted that the judgment passed by this Hon'ble Court has been implemented in letter and spirit. However, due to inadvertence, the petitioner was granted the consequential benefits w.e.f. 22.9.2002 by taking Shri Inder Singh Bhandari as the last person promoted under 15% quota whereas the said Sh. Inder Singh Bhandari was from 35% quota. When the mistake came to the notice of the department that the case of the petitioner was required to be considered under 15% quota as per the judgment dated 27.3.2008 and the claim of the petitioner was against 15% quota, under that quota Shri Kuldeep Singh (Benchmark) was promoted as JTO on 27.11.2003 as the last candidate against 15% quota against the vacancies upto 1999 on ::: Downloaded on - 15/04/2017 21:18:42 :::HCHP 4 merits, as such, the case of the petitioner was required to be considered from the said date. Not only this, the petitioner due to .
the wrong date of promotion was granted the benefit of E-2 (SDE) Sub Divisional Engineer under EPP (Executive Promotion Policy) which has been granted to her w.e.f. 1.1.2007 wrongly vide letter dated 3.3.2015 and subsequently, on the basis of mistake the petitioner was entitled to E-3 i.e. Sr. SDE Grade but the same is pending due to the fact that the date of the promotion of the of petitioner is required to be changed from 2.9.2002 to 27.11.2003. As such, the other benefits can be allowed only after necessary correction in view of the proposed changed date of promotion i.e. rt 27.11.2003. It is further submitted that the department was contesting the matter before this Hon'ble court and after the disposal of the matter the judgment rendered by the Hon'ble Single Judge has been implemented in letter and spirit. The petitioner was granted the arrears amounting to Rs.9,96,342/-
however, due to inadvertence referred earlier an amount of Rs.2,26,856/- (calculated from 2.9.2002 to March 2016) in excess was paid to the petitioner which is liable to be recovered from the petitioner.
7. It would be observed that there is virtually no denial or rebuttal to the contention raised by the respondents. The petitioner did not dispute that Inder Singh Bhandari in fact belong to 35% quota and only claimed that he was junior to the petitioner. That apart, the petitioner further did not dispute that she had erroneously been promoted from anterior date and would only rely upon and harp around the decision taken by the A.G.M.(Admn.) and claimed that the respondents are now trying to sit over the judgment passed by this Court and affirmed by the Hon'ble Supreme Court. It is apt to reproduce para-2 of the rejoinder, which reads thus:
"2. That the contents of this para is denied. It is humbly submitted that while passing the judgment, the Hon'ble Court was pleased to grant promotion to the petitioner to the post of Junior Telecom Officer (JTO) from the due date against 19 vacancies available till ::: Downloaded on - 15/04/2017 21:18:42 :::HCHP 5 the year 1999 within a period of six weeks alongwith all consequential benefits. It is humbly submitted that despite the fact .
that the benefit was to be granted w.e.f. 1999, but the respondents calculated the benefit to the petitioners w.e.f. 2.9.2002 as has been granted to Sh. Inder Singh Bhandari who was junior to the petitioner and all the arrears and further benefits was also granted to the petitioner and this fixation and promotion w.e.f. 2.9.2002 was also accepted by the petitioner.
of That vide order dated 01.08.2014, the A.G.M. (Admn.) has issued a letter and in which it has been mentioned that all the benefits to the petitioner may be granted w.e.f. 2.9.2002 and even rt benefit of promotion and seniority to 6 non-petitioner was also fixed. Copy of order dated 01.08.2014 is placed on record as Annexure C-8 for the kind perusal of this Hon'ble Court. Now, the respondents of their own has sit over the judgment of this Hon'ble Court which was affirmed by the Hon'ble Apex Court and has taken a decision to grant the benefit to the petitioner w.e.f. 27.11.2003 as the last candidate against 15% quota was granted, this action of the respondent is highly contemptuous and required to be dealt under the Contempt of Courts Act. It is submitted that a conscious was taken by the Corporation Office (Personnel)II) Section, New Delhi, whereby they have taken a decision to include the name of the petitioner Smt. Bhadra Sheela (JTO) in the All India Eligibility List alongwith 1999 recruitees in compliance of the judgment of this Hon'ble Court. Copy of the decision taken by the Corporate Office dated 12.06.2015 is annexed herewith as Annexure C-9. Thereafter in pursuance to the decision, the name of the petitioner was included in the All India Eligibility List which HR No. 199002179. Copy of letter dated 16.06.2015 is annexed as Annexure C-10.
That even the department has taken a decision to grant E- 1,E-2 and E-3 promotion to the petitioner as per the judgment of the Hon'ble High Court. It is further submitted that in the earlier contempt petition which was rendered infructuous only when the A.G.M.(Admn.) had filed an affidavit before this Hon'ble Court by stating that all the benefits as per the judgment has been granted to the applicant. Copy of the letters which was furnished by the respondent before the Hon'ble Court is annexed as Annexure C-
11. It is important to mention here that all the benefits was ::: Downloaded on - 15/04/2017 21:18:42 :::HCHP 6 granted to the petitioner after approval was taken from the Corporate Office, New Delhi and now taking U-Turn by the A.G.M. .
(Admn.) at Shimla is more contemptuous and are required to be dealt with under the Act."
8. It is more than settled that while dealing with the contempt petitions, the Courts are not required to travel beyond the four corners of of order, which is alleged to have been disobeyed or disregarded deliberately and willfully. In this connection, it shall be apposite to make rt a fruitful recapitulation of the judgment rendered by the Hon'ble Supreme Court in Ram Kishan Vs. Tarun Bajaj and others 2014 AIR SCW 1218, wherein it was held that:-
"9. Contempt jurisdiction conferred onto the law courts power to punish an offender for his willful disobedience/contumacious conduct or obstruction to the majesty of law, for the reason that respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizens that his rights shall be protected and the entire democratic fabric of the society will crumble down if the respect of the judiciary is undermined. Undoubtedly, the contempt jurisdiction is a powerful weapon in the hands of the courts of law but that by itself operates as a string of caution and unless, thus, otherwise satisfied beyond reasonable doubt, it would neither fair nor reasonable for the law courts to exercise jurisdiction under the Act. The proceedings are quasi- criminal in nature, and therefore, standard of proof required in these proceedings is beyond all reasonable doubt.It would rather be hazardous to impose sentence for contempt on the authorities in exercise of contempt jurisdiction on mere probabilities. (Vide: V.G. Nigam & Ors. v. Kedar Nath Gupta & Anr., AIR 1992 SC 2153; Chhotu Ram v. Urvashi Gulati & Anr., AIR 2001 SC 3468; Anil Ratan Sarkar & Ors. v. Hirak Ghosh & Ors., AIR 2002 SC 1405; Bank of Baroda v. Sadruddin Hasan Daya & Anr., AIR 2004 SC 942; Sahdeo alias Sahdeo Singh v. State of U.P. & Ors., (2010) 3 SCC 705; and National Fertilizers Ltd. v. Tuncay Alankus & Anr., AIR 2013 SC 1299).
10. Thus, in order to punish a contemnor, it has to be established that disobedience of the order is wilful. The word wilful introduces a mental element and hence, requires looking into the mind of person/contemnor by gauging his actions, which is an indication of ones state of mind. Wilful means knowingly intentional, conscious, ::: Downloaded on - 15/04/2017 21:18:42 :::HCHP 7 calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, bonafide or .
unintentional acts or genuine inability. Wilful acts does not encompass involuntarily or negligent actions. The act has to be done with a bad purpose or without justifiable excuse or stubbornly, obstinately or perversely. Wilful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The deliberate of conduct of a person means that he knows what he is doing and intends to do the same. Therefore, there has to be a calculated action with evil motive on his part. Even if there is a disobedience of an order, but such disobedience is the result of some compelling rt circumstances under which it was not possible for the contemnor to comply with the order, the contemnor cannot be punished. Committal or sequestration will not be ordered unless contempt involves a degree of default or misconduct. (Vide: S. Sundaram Pillai, etc. v. V.R. Pattabiraman; AIR 1985 SC 582; Rakapalli Raja Rama Gopala Rao v. Naragani Govinda Sehararao & Anr., AIR 1989 SC 2185; Niaz Mohammad & Ors. etc.etc. v. State of Haryana & Ors., AIR 1995 SC 308; Chordia Automobiles v. S. Moosa, AIR 2000 SC 1880;
M/s. Ashok Paper Kamgar Union & Ors. v. Dharam Godha & Ors., AIR 2004 SC 105; State of Orissa & Ors. v. Md. Illiyas, AIR 2006 SC 258; and Uniworth Textiles Ltd. v. CCE, Raipur, (2013) 9 SCC 753).
11. In Lt. Col. K.D. Gupta v. Union of India & Anr., AIR 1989 SC 2071,this Court dealt with a case wherein direction was issued to the Union of India to pay the amount of Rs.4 lakhs to the applicant therein and release him from defence service. The said amount was paid to the applicant after deducting the income tax payable on the said amount. While dealing with the contempt application, this Court held that withholding the amount cannot be held to be either malafide or was there any scope to impute that the respondents intended to violate the direction of this Court.
12. In Mrityunjoy Das & Anr. v. Sayed Hasibur Rahaman & Ors., AIR 2001 SC 1293, the Court while dealing with the issue whether a doubt persisted as to the applicability of the order of this Court to complainants held that it would not give rise to a contempt petition. The court was dealing with a case wherein the statutory authorities had come to the conclusion that the order of this court was not applicable to the said complainants while dealing with the case under the provision of West Bengal Land Reforms Act, 1955.
13. It is well settled principle of law that if two interpretations are possible, and if the action is not contumacious, a contempt ::: Downloaded on - 15/04/2017 21:18:42 :::HCHP 8 proceeding would not be maintainable. The effect and purport of the order is to be taken into consideration and the same must be read in .
its entirety. Therefore, the element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act. (See: Sushila Raje Holkar v. Anil Kak (Retd.), AIR 2008 (Supp-2) SC 1837; and Three Cheers Entertainment Pvt. Ltd. & Ors. v. C.E.S.C. Ltd., AIR 2009 SC 735): (2008 AIR SCW 7951)."
9. While it is duty of the Court to punish a person who tries to of obstruct the course of justice or brings to disrepute the institution of judiciary. However, this power has to be exercised not casually or lightly, rt but with great care and circumspection. Contempt proceedings serve a dual purpose of vindication of the public interest by punishment of the contumacious conduct and coercion to compel the contemnor to do what the law requires of him.
10. A question whether there is contempt of Court or not is a serious one. The Court is both the accuser as well as the judge of the accusation. It behoves the Court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising from inveterate practices in Courts and tribunals. It is only when a clear case of contumacious conduct not explainable otherwise, arises that the contemnor must be punished. Punishment under the law of Contempt is called for when the lapse is deliberate and in disregard of one's duty and in defiance of authority.
11. Adverting to the facts, it would be noticed that the specific case of the respondents is that while implementing the judgment passed by this Court, they committed a mistake and if that be so, it is always open to the respondents to rectify and correct the same.
12. Similar issue came up before the Hon'ble Supreme Court in Union of India and another vs. Narendra Singh, (2008) 2, SCC 750, wherein the Hon'ble Supreme Court held that the mistake of the department ::: Downloaded on - 15/04/2017 21:18:42 :::HCHP 9 in promoting a person though he was not eligible and qualified, was correctable and it was further observed that mistakes are mistakes and they .
can always be corrected by following due process of law and that the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It is apt to reproduce the observations as contained in paras 32 and 33, which reads thus:-
of "32. It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, we cannot countenance the submission of the rt respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be corrected by following due process of law. In Indian Council of Agricultural Research & Anr.
v. T.K. Suryanarayan & Ors., (1997) 6 SCC 766, it was held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore Statutory Rules.
33. As observed by us, Statutory Rules provide for passing of Departmental Examination and the Authorities were right in not relaxing the said condition and no fault can be found with the Authorities in insisting for the requirement of law. In the circumstances, the action of the Authorities of correcting the mistake cannot be faulted."
13. The aforesaid exposition of law makes it evidently clear that if the benefit has been awarded to an employee, which was not available to him and had been granted due to mistake of the employer, the same could be rectified after such mistake came to light and could be corrected at any time. In the realm of service matter, the employer can review any fault committed by him/them and this right to review one's own decision on account of mistake or fault is not foreclosed under law.
14. The petitioner was required to prove and establish on record not only her entitlement to the promotion from anterior date but also prove her entitlement to the excess amount paid to her and having failed ::: Downloaded on - 15/04/2017 21:18:42 :::HCHP 10 to do so, we have no hesitation in observing that the petitioner has misused the process of the Court by initiating the instant proceedings so .
as to pressurize the respondents under the threat of contempt and to grant her what she otherwise is neither legally nor legitimately entitled to.
15. The weapon of contempt is not to be used in abundance or misused. Normally, it cannot be used for implementation of an order for of which alternative remedy in law is provided for.
16. In view of the above discussion, we find no merit in this rt contempt petition and the same is accordingly dismissed.
( Mansoor Ahmad Mir )
Chief Justice
September 27, 2016 ( Tarlok Singh Chauhan )
(GR) Judge
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