Lt. Col. A.A. Aphraim (Rtd.) vs Rajiv Ranjan on 1 July, 2024

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Kerala High Court

Lt. Col. A.A. Aphraim (Rtd.) vs Rajiv Ranjan on 1 July, 2024

Above Contempt of Court Case is filed alleging noncompliance of the directions in Annexure A4 judgment in OP(CAT) No.211 of 2016. It is contended that the petitioner was commissioned in the Indian Army during the emergency of Chinese aggression. After the emergency, the petitioner and other emergency commissioned officers were granted NCC permanent commission which was a one-time measure limited to existing officers as on 23.05.1980 and they were paid from defence estimate under the Army head. It is further contended that these officers were treated at par with their counterparts in the Army with regard to their pay/allowance and perks all throughout their service and even after their retirement with regard to their pension. However, by Circular No.144 dated 27.01.2010, (Annexure 3 in the O.A.) the pension disbursing authorities were directed to review the case of the NCC Whole Time Officer like the petitioner, stating that they are not entitled Con. Case(C) No.739 of 2022 -3- to get the benefit of the letter dated 21.05.2009 issued by the Government of India and that payment of pension to them under pay band IV has resulted in over payment of pension. It is aggrieved by the same, O.A.No. 418 of 2014 was filed before the Central Administrative Tribunal, Ernakulam challenging Circular No.144 dated 27.01.2010. The Tribunal by Ext.P6 order declined to interfere with the impugned circular but relying on the judgment in State of Punjab and Others v. Rafiq Masih (White Washer)[ AIR (2015) SC 696] directed the respondents not to effect any recovery of excess payment from the applicants. Aggrieved by the same the petitioner has filed OP(CAT)No.211 of 2016 before this Court, challenging Ext.P6 order.

2. It is contended that while the said OP(CAT) was pending consideration, the Government of India issued Annexure A1 (Ext.P13 in OP(CAT)No.211 of 2016) and decided to give pension to the NCC Wholetime Officers who have retired from service prior to 2006 treating them at par with counterpart in the Armed Forces for fixing their pension in pay band IV with effect from 01.01.2006 and also decided to refund the amount already recovered. In light of Annexure 1, the respondents Con. Case(C) No.739 of 2022 -4- issued Annexure A2 Circular (Ext.P14 in OP(CAT)No.211 of 2016). Thereafter, by Annexure A3 (Ext.P15 in OP(CAT)No.211 of 2016) the Director General NCC was informed by the respondent that in the light of Annexure A1 and A2 necessary instructions have been issued to all pension disbursing agencies to revise the minimum guaranteed pension. It is further contended that in another case O.A.No.1053 of 2016, the Central Administrative Tribunal has quashed the impugned Circular No.144 dated 27.10.2010 also.

3. Taking note of the above marked Annexures and order of the Tribunal in O.A.No.1053 of 2016, this Court passed Annexure A4 judgment directing respondents 1 to 5 in the OP (CAT) No.211 of 2016 to see that all consequential steps by way of necessary reliefs should be granted to the petitioners if the same has not been granted, without any delay, at any rate within a period of 2 months.

4. Petitioner submits that the pension of the petitioner was fixed as Rs.26,265/- per month at par with pension of the Army Officers of equivalent rank during the 6 th pay commission (i.e. pay band IV). The petitioner would contend that a Circular bearing No.555 dated 04.02.2016 was issued by the Principal Con. Case(C) No.739 of 2022 -5- Controller of Defence Accounts, Allahabad (PCDA) whereby the pension of Army Officers was revised and enhanced to Rs.37,465/- from Rs.26,265/-. The contention of the petitioner is that the benefit of the said circular was not extended to the petitioner mainly because the Government of India decided to give notional fixation of pension with effect from 01.01.2006 in respect of NCC whole time officers treating them at par with regular Army Officers of equivalent rank, as recommended by Director General NCC only on 19.09.2019 by Annexure A1 letter. Petitioner submits that this has resulted in a huge reduction in the monthly basic pension of the petitioner. The contention of the petitioner is that the benefit of Circular No.555 dated 04.02.2016 is not extended to the petitioner and the said action is in violation of the directions in Annexure A4 judgment and therefore, the present Contempt of Court Case is filed.

5. Two affidavits were filed by the respondents. It is contended that based on Annexure A1 letter dated 19.09.2019, the pension of the petitioner was revised at par with regular, Army, Navy and Air Force officers. It is also submitted that the petitioner cannot claim the benefit of Circular No.555 dated Con. Case(C) No.739 of 2022 -6- 04.02.2016 since it is issued based on the decision of the Government of India to implement "One Rank One Pension"

scheme for ex-servicemen which is a policy decision implemented with the objective of ensuring that uniform pension be paid to the defence forces personnel retiring in the same rank with the same length of service regardless of their date of retirement and the same was intended to be extended to the ex-serviceman and commissioned officers of the armed forces and the petitioner who was granted permanent commission under NCC and who was never granted permanent Commission in the Army, Navy and Air Force cannot aspire for the benefit under "One Rank One Pension" scheme. It is also stated that the "One Rank One Pension" scheme is a policy decision of the Government and the beneficiary under the scheme is also well defined. It is further stated that the petitioner has never claimed for the benefit of "One Rank One Pension" either in the O.A. before the Tribunal or in the OP(CAT) before this Court and such a claim has been raised for the first time in this Contempt of Court Case. It is further submitted that if the the petitioner has a case that he is entitled to the benefit of the "One Rank One Pension" scheme, he has to Con. Case(C) No.739 of 2022 -7- agitate the same through appropriate legal proceedings and the same cannot be agitated in the present Contempt of Court Case.

6. We have considered the rival contentions on both sides. Admittedly, the directions in the judgment in OP(CAT) No.211 of 2016 have been complied with. Even in the contempt, the petitioner admits that the pension of the petitioner was fixed as Rs.26,265/- per month at par with the pension of the Army Officers of equivalent rank during the 6 th pay commission (i.e. pay band IV). The present grievance raised by the petitioner is that the benefit of Circular No.555 dated 04.02.2016 has not been extended to the petitioner. Admittedly, the benefit of the said Circular was never claimed by the petitioner either in the O.A. or in the OP(CAT) before the issuance of the judgment dated 09.11.2021 in OP(CAT) No.211 of 2016. Such a claim has been raised for the first time in the present Contempt of Court Case. The respondents have taken a stand that the extension of the benefit of the "One Rank One Pension" scheme is a policy decision of the Government and the beneficiary under the scheme is also well defined and that the petitioner who was granted permanent commission under NCC cannot claim the benefit of the said scheme which is intended for the ex- Con. Case(C) No.739 of 2022 -8- servicemen and commissioned officers of Army, Navy and Air Force.

7. The question is whether the petitioner can agitate a claim based on Circular No.555 dated 04.02.2016 and seek for the benefit of the "One Rank One Pension" scheme in the present Contempt of Court Case, specially when the benefit flowing out of Annexure 4 judgment has been granted to the petitioner and further that the petitioner has not raised a claim based on the said Circular either in the O.A. or in the OP (CAT).

8. It is settled law that the court while exercising the contempt jurisdiction can only adjudicate in respect of the disobedience alleged and the court cannot travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order, violation of which is alleged and that no order or direction supplemental to what has already been expressed could be issued by the court while exercising jurisdiction in the domain of the contempt law. In the present case, even the petitioner does not have a definite case that the direction in Annexure 4 judgment has not been complied with. What is complained of is that the benefit of Circular No.555 Con. Case(C) No.739 of 2022 -9- dated 04.02.2016 has not been extended to the petitioner. It is an admitted fact that no claim has been raised by the petitioner either in the O.A. or in the OP(CAT) based on Circular No.555 dated 04.02.2016.

9. The Apex Court in Sudhir Vasudeva v. M. George Ravishekaran[(2014) 3 SCC 373] has observed as under, in the context of exercise of contempt jurisdiction:-

19. The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971.

It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt. The very nature of the power casts a sacred duty in the Courts to exercise the same with the greatest of care and caution. This is also necessary as, more often than not, adjudication of a contempt plea involves a process of self-determination of the sweep, meaning and effect of the order in respect of which disobedience is alleged. The Courts must not, therefore, travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are explicit in a judgment or order or are plainly self-evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or wilful violation of the same. Decided issues cannot be reopened; nor can the plea of equities be considered. The Courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon. No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above. The above principles would appear to be Con. Case(C) No.739 of 2022 -10- the cumulative outcome of the precedents cited at the Bar, namely, Jhareswar Prasad Paul v. Tarak Nath Ganguly [(2002) 5 SCC 352 :

2002 SCC (L&S) 703] , V.M. Manohar Prasad v. N. Ratnam Raju [(2004) 13 SCC 610 : 2006 SCC (L&S) 907] , Bihar Finance Service House Construction Coop. Society Ltd. v. Gautam Goswami [(2008) 5 SCC 339] and Union of India v. Subedar Devassy PV [(2006) 1 SCC 613] .

10. In Jhareswar Prasad Paul v. Tarak Nath Ganguly [(2002) 5 SCC 352], the Apex Court in paragraph 11 held as follows:-

"11. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law, since the respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizen and the democratic fabric of society will suffer if respect for the judiciary is undermined. The Contempt of Courts Act, 1971 has been introduced under the statute for the purpose of securing the feeling of confidence of the people in general for true and proper administration of justice in the country. The power to punish for contempt of court is a special power vested under the Constitution in the courts of record and also under the statute. The power is special and needs to be exercised with care and caution. It should be used sparingly by the courts on being satisfied regarding the true effect of contemptuous conduct. It is to be kept in mind that the court exercising the jurisdiction to punish for contempt does not function as an original or appellate court for determination of the disputes between the parties. The contempt jurisdiction should be confined to the question whether there has been any deliberate disobedience of the order of the court and if the conduct of the party who is alleged to have committed such disobedience is contumacious. The court exercising contempt jurisdiction is not entitled to enter into questions which have not been dealt with and decided in the judgment or order, violation of which is alleged by the applicant. The court has to consider the direction issued in the judgment or order and not to consider the question as to what the judgment or order should have contained. At the cost of repetition, be it stated here that the court exercising contempt jurisdiction is Con. Case(C) No.739 of 2022 -11- primarily concerned with the question of contumacious conduct of the party, which is alleged to have committed deliberate default in complying with the directions in the judgment or order. If the judgment or order does not contain any specific direction regarding a matter or if there is any ambiguity in the directions issued therein then it will be better to direct the parties to approach the court which disposed of the matter for clarification of the order instead of the court exercising contempt jurisdiction taking upon itself the power to decide the original proceeding in a manner not dealt with by the court passing the judgment or order. If this limitation is borne in mind then criticisms which are sometimes levelled against the courts exercising contempt of court jurisdiction "that it has exceeded its powers in granting substantive relief and issuing a direction regarding the same without proper adjudication of the dispute" in its entirety can be avoided. This will also avoid multiplicity of proceedings because the party which is prejudicially affected by the judgment or order passed in the contempt proceeding and granting relief and issuing fresh directions is likely to challenge that order and that may give rise to another round of litigation arising from a proceeding which is intended to maintain the majesty and image of courts."

11. In V.M. Manohar Prasad v. N. Ratnam Raju [(2004) 13 SCC 610], the Apex Court considered whether any direction providing any substantive relief could be granted while exercising contempt jurisdiction and held as follows:-

"7. On the basis of what has been indicated above, the first submission is that there is no violation of the order passed by the learned Single Judge directing regularisation of the employees, since the said order has not been violated in any manner. The matter was considered in the light of the scheme for regularisation dated 24-4-1994. Secondly, it is submitted that the Contempt Court had no jurisdiction to issue any direction providing any substantive relief to the petitioners moving the contempt petition. In support of this contention reliance has been placed upon decisions of this Court in Jhareswar Prasad Paul v. Tarak Nath Ganguly [(2002) 5 Con. Case(C) No.739 of 2022 -12- SCC 352 : 2002 SCC (L&S) 703] and Notified Area Council v. Bishnu C. Bhoi [(2001) 10 SCC 636 : 2002 SCC (L&S) 1018] . There is no doubt about the position under the law that in contempt proceedings no further directions could be issued by the court. In case it is found that there is violation of the order passed by the court the court may punish the contemnor otherwise notice of contempt is to be discharged. An order passed in the contempt petition, could not be a supplemental order to the main order granting relief."

A similar issue came up for consideration before the Apex Court in Bihar Finance Service House Construction Coop. Society Ltd. v. Gautam Goswami [(2008) 5 SCC 339] and the Court held as follows:-

"32. While exercising the said jurisdiction this Court does not intend to reopen the issues which could have been raised in the original proceeding nor shall it embark upon other questions including the plea of equities which could fall for consideration only in the original proceedings. The court is not concerned with as to whether the original order was right or wrong. The court must not take a different view or traverse beyond the same. It cannot ordinarily give an additional direction or delete a direction issued. In short, it will not do anything which would amount to exercise of its review jurisdiction. (See Director of Education v. Ved Prakash Joshi [(2005) 6 SCC 98 : 2005 SCC (Cri) 1357 : 2005 SCC (L&S) 812 :

AIR 2005 SC 3200] and K.G. Derasari v. Union of India [(2001) 10 SCC 496 : 2002 SCC (L&S) 756] .)"

12. The Apex Court had also occasion to consider a similar issue in Union of India v. Subedar Devassy PV [(2006) 1 SCC 613] and held in paragraphs 2 and 6 as follows:-

"2. While dealing with an application for contempt, the court is really concerned with the question whether the earlier decision which has received its finality had been complied with or not. It would not be Con. Case(C) No.739 of 2022 -13- permissible for a court to examine the correctness of the earlier decision which had not been assailed and to take a view different from what was taken in the earlier decision. A similar view was taken in K.G. Derasari v. Union of India [(2001) 10 SCC 496 : 2002 SCC (L&S) 756] . The court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party who is alleged to have committed default in complying with the directions in the judgment or order. If there was no ambiguity or indefiniteness in the order, it is for the party concerned to approach the higher court if according to him the same is not legally tenable. Such a question has necessarily to be agitated before the higher court. The court exercising contempt jurisdiction cannot take upon itself the power to decide the original proceedings in a manner not dealt with by the court passing the judgment or order. Though strong reliance was placed by learned counsel for the appellants on a three-Judge Bench decision in Niaz Mohd. v. State of Haryana [(1994) 6 SCC 332] , we find that the same has no application to the facts of the present case. In that case the question arose about the impossibility to obey the order. If that was the stand of the appellants, the least it could have done was to assail correctness of the judgment before the higher court. xxx xxx xxx xxx xxx xxx

6. If any party concerned is aggrieved by the order which in its opinion is wrong or against the rules or its implementation is neither practicable nor feasible, it should always either approach the court that passed the order or invoke jurisdiction of the appellate court. Rightness or wrongness of the order cannot be urged in contempt proceedings. Right or wrong, the order has to be obeyed. Flouting an order of the court would render the party liable for contempt. While dealing with an application for contempt, the court cannot traverse beyond the order, non-compliance with which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test the correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible."

Con. Case(C) No.739 of 2022

-14-

In view of the factual and legal position as stated above, we are of the opinion that there is no willful disobedience to the directions of this Court in Annexure A4 judgment dated 09.11.2021 in OP(CAT)No.211 of 2016 and accordingly the above Contempt of Court Case is dismissed.

It is made clear that the dismissal of the above Contempt of Court Case will not stand in the way of the petitioner agitating his claims, in accordance with law, before the appropriate forum, based on Circular No.555 dated 04.02.2016 issued by the PCDA.

Sd/-

ANIL K. NARENDRAN JUDGE Sd/-

VIJU ABRAHAM JUDGE sm/ Con. Case(C) No.739 of 2022 -15- APPENDIX OF CON.CASE(C) 739/2022 PETITIONER ANNEXURES Annexure1 TRUE PHOTOCOPY OF THE LETTER DATED 19.09.2019 ISSUED BY THE UNDER SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF DEFENCE ADDRESSED TO THE DIRECTOR GENERAL, NCC Annexure2 TRUE PHOTOCOPY OF THE CIRCULAR NO. C-

203 DATED 25.09.2019 ISSUED BY THE RESPONDENT Annexure3 TRUE PHOTOCOPY OF THE LETTER DATED 21.10.2019 ISSUED BY THE RESPONDENT Annexure4 CERTIFIED COPY OF THE JUDGMENT DATED 09.11.2021 IN O.P (CAT) NO. 211/2016 Annexure A5 True photocopy of the Circular No.555 dated 04.02.2016 along with its table No.1 issued by the Assistant Controller (P) Charge MEMORANDUM OF DRAFT CHARGE AGAINST THE ADDL. 2ND RESPONDENT SOUGHT TO BE IMPLEADED RESPONDENT ANNEXURES Annexure R1 The true copy of the Govt. letter No. 5431/DGNCC/FC/IIICS/NS(B)/1130/A/D(GS.V I) dated 23.05.1980 Annexure R2 True copy of the O.M. No.F No. 45/86/97-P and PW(A) Part II dated 27.10.1997 issued by the Govt. of India Annexure R3 The true copy of the O.M.No. 38/37/08-P and W(A) dated 01.09.2008 issued by the Govt. of India 38/37/08 Annexure R4 The true copy of the compliance report filed by the 1st respondent in C.P. No. 51/2018 in O.A. No. 1053/2016 before the Hon,ble CAT, Ernakulam Bench dated 27.09.2019 Annexure R5 The true copy of the order in CP(C) No.51/2018 in O.A.no. 1053/2016 passed by the Hon,ble CAT, Ernakulam Bench dated 29.10.2019

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