Central Administrative Tribunal - Delhi
Dr Pradip Kumar vs Dr Rajendra Kumar Director General & Anr ... on 19 April, 2023
1 CP No.18/2023 in
OA No.3668/2022
Central Administrative Tribunal
Principal Bench: New Delhi
CP No.18/2023
and
MA No. 220/2023
in
OA No.3668/2022
Order reserved on: 12.04.2023
Order pronounced on: 19.04.2023
Hon'ble Mr. Anand Mathur, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
Dr. Pradip Kumar (Aged about 59 years) Group „A‟,
S/o Late Sh. Mitthan Lal,
R/o 90-A, MIG DDA Flats,
Jhilmil Phase-2, Shivam Enclave,
Delhi-110032.
....Applicant
(By Advocate: Mr. M.K.Bhardwaj)
Versus
1. Dr. Rajendra Kumar
Director General,
Employees State Insurance Corporation
(ESIC)
Panchdeep Bhawan, CIG Marg,
New Delhi.
2. Dr. Kamlesh Harish
Medical Commissioner,
Medical Administration,
Employees State Insurance Corporation
(ESIC)
Panchdeep Bhawan, CIG Marg,
New Delhi.
... Respondents
(By Advocate: Mr. Manish Kumar Saran)
2 CP No.18/2023 in
OA No.3668/2022
ORDER
By Hon'ble Manish Garg, Member (J) "Whenever a doctor cannot do good, he must be kept from doing harm."
Hippocrates In the present Contempt Petition, the petitioner seeks following relief(s):
"1. Initiate contempt proceedings against the respondents for violating the order dtd. 24.12.2022 in OA No.3668/2022 passed by this Hon‟ble Tribunal.
2. Pass any other further orders as this Hon‟ble Tribunal may deemed fit and proper in the facts and circumstances of the case mentioned above."
2. To substantiate the relief(s), the learned counsel for the applicant has drawn reference to the following facts:-
2.1 Petitioner filed OA No.3668/2022 challenging his transfer from ESIC Hospital, Sahibabad to Directorate Medical Delhi under his junior. The said OA was heard by this Tribunal and vide an ad interim order dated 24.12.2022 the following directions were issued to the respondents:
"3. He presses for grant of interim relief qua the impugned order dated 09.12.2022 wherein in compliance of the order dated 07.10.2022 in OA No. 2912/2022, the applicant was given opportunity to present hearing. In the earlier round of litigation, interim relief was granted. Thereafter, the respondents were directed to dispose of the pending 3 CP No.18/2023 in OA No.3668/2022 application/representation of the applicant by passing a reasoned and speaking order. Hence, the present order has been impugned as can be seen in the impugned order itself. Though grounds in para 2 of the impugned order have been settled keeping in view para 5.2 of the Transfer Police dated 30.05.2022. Grounds in Para 2 are reproduced here:-
"(i) The post of Director (Medical) Delhi is filled through transfer/posting and is not a promotional post. The transfer/posting to the post is done keeping in view the suitability of the officer to the post. Hence, the claim to the post on the basis of seniority only is not justified.
(ii) The committee has recommended a medical officer assessed suitable for the post keeping in view the administrative requirement which has been accepted by Chairman, ESIC who has full powers to order transfer/posting in exceptions to any of the condition/guidelines appearing in the policy on administrative ground or exigencies or public interest.
Hence, the transfer order issued accordingly is valid.
(iii) The penalty of withholding of one increment for one year was imposed on Dr. Arun Kumar Gupta in July 2021 for one year while the transfer committee recommended him for posting as Director (Medical) Delhi in August, 2022.
(iv) The extension of tenure of Medical Superintendent beyond the maximum tenure of five years is to be based on assessment of such an administrative requirement and suitability of the officer under consideration to be duly recommended at appropriate levels. No such requirement was assessed in his case and there were no recommendations for his suitability for continuing on the post beyond the normal tenure of five years as Medical Superintendent by the transfer committee."
However, there is no reasoning given to the said para in the impugned office order thereby upholding the previous office order no. 74 dated 23.09.2022 deemed to the valid and justified. Even though, it is noticeable fact that Dr. Arun Kumar Gupta, who was junior to the present applicant and facing penalty of withholding of one increment for one year, was recommended by the Transfer Committee to the post as Director (Medical) Delhi in August, 2022 above the present applicant ignoring the fact that the applicant has already completed the age of 60 years and is entitled to the benefits as per para 5.2 of the Transfer policy. The impugned order has still been passed. The applicant has made out the prima-facie case for grant of the interim relief. Till the date, he has not been relieved.
4. Issue notice to the respondents, returnable within two weeks to file reply. One week thereafter to the applicant to file rejoinder, if any.
4 CP No.18/2023 in OA No.3668/20225. List on 31.01.2023. Transfer order dated 23.09.2022 as well as rejection order be kept in abeyance till next date of hearing.
Order Dasti."
2.2 In terms of the aforesaid Order, the petitioner requested the respondents vide his letter dated 27.12.2022 to allow him to discharge his duty and release his salary. When the said request was not considered by the respondents, petitioner sent e-mail dated 11.01.2023, requesting the respondents to allow him to discharge his official duties as Medical Superintendent (MS), but to no avail. Rather, he has been made to sit in the hospital continuously without any work.
2.3 When the petitioner insisted upon the respondents in this behalf, he was assured by them of the needful.
However, instead of allowing him to discharge his duties as MS, ESIC Hospital, Sahibabad, the respondents issued order dated 12.01.2023 vide which one Dr. Surender Kaur, GDMO (SAG) has been posted as MS of the said Hospital.
2.4 In not allowing the petitioner to discharge his duties and responsibilities as MS, ESIC Hospital, Sahibabad and posting his junior in that capacity, the respondents have violated the Order of this Tribunal 5 CP No.18/2023 in OA No.3668/2022 dated 24.12.2022 wilfully and deliberately vide which the transfer of the applicant was stayed.
2.5 The respondents have no respect for the order passed by this Tribunal, as is evident from their aforesaid conduct. In view of the Order of this Tribunal dated 24.12.2022, the respondents were required to allow the petitioner to discharge his duties and salary was required to be paid. The petitioner has also not been assigned any work/duty by the respondents, which is a contemptuous act by the respondents for which they are liable to be dealt with under the Contempt of Courts Act, 1971 read with Section 17 of the Administrative Tribunals Act, 1985. Hence the CP.
3. Per contra, the learned counsel for the respondents, opposing the initiation of contempt proceedings, would urge as under:-
3.1 The answering respondents have submitted that they have highest regard and respect for the order/direction passed by this Tribunal. It is never their intention to violate or disregard the order/direction of this Tribunal. They, however, have also tendered unconditional apology, if for any reason the orders and directions passed by this Tribunal are found to have been violated. However, it is submitted that the present 6 CP No.18/2023 in OA No.3668/2022 CP is liable to be dismissed with heavy cost for suppression of facts by the petitioner. In fact, he is in the habit of suppressing facts from this Tribunal which he has done not only in the present CP but also in the OA whereby ex parte interim order dated 24.12.2022 was passed.
3.2 It is further submitted that petitioner was transferred from the post of MS, ESIC Hospital, Sahibabad to D(M)D ESIC Headquarter vide order dated 23.09.2022. By the same order one Dr. Vanora E.Nongrum was posted as MS, ESIC Hospital, Sahibabad vice the petitioner. The said Dr. Vanora joined as MS, ESIC Hospital, Sahibabad on 30.09.2022.
The present petitioner being aggrieved by the transfer order dated 23.09.2022 filed OA No.2912/2022 before this Tribunal. The petitioner being fully aware that the said Dr. Vanora has joined on the post of MS, ESIC Hospital, Sahibabad deliberately suppressed this fact from this Tribunal in OA No.2912/2012 which was filed on 06.10.2022. In fact, after coming to know that the said Dr. Vanora had joined as MS, ESIC Hospital, Sahibabad, the petitioner proceeded on medical leave on 30.09.2022.
7 CP No.18/2023 in OA No.3668/20223.3 The said OA No.2912/2022 was disposed of by the Tribunal, vide order dated 07.10.2022, at the admission stage itself in absence of any representation from the ESIC with direction that the representation of the petitioner be decided by a speaking order and till then his transfer was directed to be kept in abeyance. It is further submitted that bare perusal of the order dated 07.10.2022 would show that the present petitioner suppressed the fact from this Tribunal that the said Dr. Vanora has already joined on 30.09.2022 as MS, ESIC Hospital, Sahibabad and this Tribunal was under the impression that petitioner though was transferred vide order dated 23.09.2022, continues to hold the same post.
3.4 In terms of the directions issued by this Tribunal on 07.10.2022 in OA No.2912/2022, the petitioner‟s representation was decided by a Speaking Order dated 09.12.2022. In terms of the interim Order dated 07.10.2022, the transfer Order dated 23.09.2022 qua the petitioner was directed to be kept in abeyance till representation is decided. In view of the same, the interim direction came to an end with passing of the Speaking Order dated 09.12.2022 on the representation of the petitioner.
8 CP No.18/2023 in OA No.3668/20223.5 Accordingly, in view of the Speaking Order so passed, petitioner was relieved from the post of MS, ESIC Hospital, Sahibabad on 10.12.2022 (FN) vide Office Order No.178/2022. In fact, the petitioner even came to the office on 10.12.2022 in the morning, when he was informed that he has already been relieved from the post of MS, ESIC Hospital, Sahibabad. However, as per the letter sent by Dr. Vanora, the petitioner though was handed over the relieving order but he refused to receive the same. He was also informed through his official ID on 10.12.2022 at about 09.40 AM that he has been relieved and the relieving order was also attached with the said e-mail.
3.6 Thereafter, the petitioner filed OA No.3668/2022 before this Tribunal on 12.12.2022 but surprisingly again suppressed the fact from the Tribunal that he has already been relieved from the post of MS, ESIC Hospital, Sahibabad on 10.12.2022.
3.7 This Tribunal vide Interim Order dated 24.12.2022 in OA No.3668/2022 passed an Interim Order, whereby the transfer order was directed to be kept in abeyance.
It is humbly submitted that from the perusal of the Interim Order dated 24.12.2022, it seems that this Tribunal has passed the Interim Order under the 9 CP No.18/2023 in OA No.3668/2022 impression that the petitioner still continues to hold the post of MS, ESIC Hospital, Sahibabad, which was not the case. The petitioner has obtained this Interim Order by misleading the Tribunal about his relieving from the post of MS, ESIC Hospital, Sahibabad. In view of the above, present CP is liable to be dismissed as the petitioner has not approached this Tribunal with clean hands.
4. The Learned counsel for the respondents cited following case laws:
(i) State of J&K vs. Mohd. Yaqoob Khan and others, (1992) 4 SCC 167
(ii) Kishore Samrite vs. State of Uttar Pradesh and others, (2013) 2 SCC 398
(iii) Sh. K.Jayaram and others vs. Bangalore Devleopment Authority and others, Civil Appeal No.7550-7553 of 2021 decided on 08.12.2021
(iv) Ram Kumar vs. State of Uttar Pradesh and others, Civil Appeal No.4258/2022 decided on 28.09.2022
(v) Dalip Singh vs. State of Uttar Pradesh and others, (2010) 2 SCC 114.
5. In rejoinder to the above arguments, the learned counsel for the applicant would urge that Section 97 of Employees‟ State Insurance Act, 1948 prescribes as follows:-
10 CP No.18/2023 in OA No.3668/2022"97. Power of Corporation to make regulations. --
(1) The Corporation may, 143[***] subject to the condition of previous publication, make regulations, not inconsistent with this Act and the rules made thereunder, for the administration of the affairs of the Corporation and for carrying into effect the provisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:--
(i) the time and place of meetings of the Corporation, the Standing Committee and the Medical Benefit Council and the procedure to be followed at such meetings;
11 [(ia) the time within which and the manner in which a factory or establishment shall be registered;]
(ii) the matters which shall be referred by the Standing Committee to the Corporation for decision;
(iii) the manner in which any contribution payable under this Act shall be assessed and collected; 144 [(iiia) the rate of interest higher than twelve per cent. on delayed payment of contributions;]
(iv) reckoning of wages for the purpose of fixing the contribution payable under this Act;
4 [(iva) the register of employees to be maintained by the immediate employer;
(ivb) the entitlement of sickness benefit or disablement benefit for temporary disablement on any day on which person works or remains on leave or on holiday and in respect of which he receives wages or for any day on which he remains on strike;]
(v) the certification of sickness and eligibility for any cash benefit;
145[(vi) the method of determining whether an insured person is suffering from one or more of the diseases specified in the Third Schedule;]
(vii) the assessing of the money value of any benefit which is not a cash benefit;
(viii) the time within which 257 [and the form and manner in which] any claim for a benefit may be 11 CP No.18/2023 in OA No.3668/2022 made and the particulars to be specified in such claim;
(ix) the circumstances in which an employee in receipt of disablement benefit may be dismissed, discharged, reduced or otherwise punished;
(x) the manner in which and the place and time at which any benefit shall be paid;
(xi) the method of calculating the amount of cash benefit payable and the circumstances in which and the extent to which commutation of disablement and dependant's benefits, may be allowed and the method of calculating the commutation value;
(xii) the notice of pregnancy or of confinement and notice and proof of sickness;
11[(xiia) specifying the authority competent to give certificate of eligibility for maternity benefit;
(xiib) the manner of nomination by an insured woman for payment of maternity benefit in case of her or her child's death;
(xiic) the production of proof in support of claim for maternity benefit or additional maternity benefit;]
(xiii) the conditions under which any benefit may be suspended;
(xiv) the conditions to be observed by a person when in receipt of any benefit and the periodical medical examination of such persons; 147 [***] (xvi) the appointment of medical practitioners for the purposes of this Act, the duties of such practitioners and the form of medical certificates;
148 [(xvia) the qualifications and experience which a person should possess for giving certificate of sickness;
(xvib) the constitution of medical boards and medical appeal tribunals;] (xvii) the penalties for breach of regulations by fine (not exceeding two days' wages for a first breach and not exceeding three days' wages for any subsequent breach) which may be imposed on employees; 149[(xviia) the amount of damages to be recovered as penalty;
12 CP No.18/2023 in OA No.3668/2022(xviib) the terms and conditions for reduction or waiver of damages in relation to a sick industrial company;] (xviii) the circumstances in which and the conditions subject to which any regulation may be relaxed, the extent of such relaxation, and the authority by whom such relaxation may be granted;
150 [(xix) the returns to be submitted and the registers or records to be maintained by the principal and immediate employers, the forms of such returns, registers or records, and the times at which such returns should be submitted and the particulars which such returns, registers and records should contain;] (xx) the duties and powers of 262 [Social Security Officers] and other officers and servants of the Corporation;
150[(xxi) the method of recruitment, pay and allowances, discipline, superannuation benefits and other conditions of service of the officers and servants of the Corporation other than the 265 [Director General and Financial Commissioner];] (xxii) the procedure to be followed in remitting contributions to the Corporation; and (xxiii) any matter in respect of which regulations are required or permitted to be made by this Act. 39[(2A) The condition of previous publication shall not apply to any regulations of the nature specified in clause (xxi) of sub-section (2).] (3) Regulations made by the Corporation shall be published in the Gazette of India and thereupon shall have effect as if enacted in this Act.
141 [(4) Everyregulation shall, as soon as may be, after it is made by the Corporation, be forwarded to the Central Government and that Government shall cause a copy of the same to be laid before each House of Parliament, while it is in session for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the regulation or both Houses agree that the regulation should not be made, the regulation shall thereafter 13 CP No.18/2023 in OA No.3668/2022 have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation.]"
6. He would also draw a reference to Circulars dated 17.06.2022, 20.06.2022 and 26.06.2022 on the subject „Submission of option for transfer/posting for clinical posting through online Module‟.
7. The Learned counsel for the petitioner cited following case laws:
(i) Dr. H.Phunindre Singh and others vs. K.K.Sethi and another, (1998) 8 SCC 640
(ii) Commissioner, Karnataka Housing Board vs. C.Muddaiah, Appeal (Civil) No.4108/2007 decided on 07.09.2007
(iii) Brigadier Nalin Kumar Bhatia vs. Union of India and others, (2020) 4 SCC 78.
8. ANALYSIS:
8.1 Right to Health - Paramount Consideration - In the case of Dr.P.Balakrishnan vs. The Government of Tamil Naduin W.P.No.31369 of 2019 decided on 28.02.2020, the Hon‟ble Madras High Court has held as under:-
"24. The "right to health" has universally attained the status of a fundamental right of every human being. The word "health" is one of indefinite import. However, in the present context, a widely accepted definition of 14 CP No.18/2023 in OA No.3668/2022 health is as enumerated in the preamble of Constitution of the World Health Organization (1946) which defines it as "a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity."
25. India is a signatory to the Universal Declaration of Human Rights (1948) (UDHR) and the International Covenant on Civil and Political Rights (1966). What is, however, of interest is the fact that the preamble of the UDHR specifically declares that the principles laid down therein represent "common standard of achievement for all people and nations" and that "every individual and every organ of society" must strive to secure "universal and effective recognition of these rights". It has been held, on more than one occasion, that the principles set out in the UDHR greatly influenced the process of adoption of fundamental rights in India (See 2014 5 SCC 438 at paragraph 97). Thus, there can be no quarrel with the proposition that interpretation of fundamental rights must, therefore, be informed by the principles set out in these international instruments.
26. The importance of timely and quality medical care as an integral part of the right to health is evident from the fact that Article 25 of the UDHR specifically enumerates it as one of the facets of the right to health and well being of a person. In Chameli Singh v. State of U.P., (1996) 2 SCC 549, the Supreme Court reiterated this obligation in the following words:
4. ...... Article 25(1) of the Universal Declaration of Human Rights declares that "everyone has the right to a standard of living adequate for the health and well-
being of himself and his family including food, clothing, housing, medical care and necessary social services". Article 11(1) of the International Covenant on Economic, Social and Cultural Rights, 1966 laid down that State parties to the Covenant recognize "the right to everyone to an adequate standard of living for himself and for his family including food, clothing, housing and to the continuous improvement of living conditions". The State parties will take appropriate steps to ensure realization of this right."
27. In Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 the Supreme Court reiterated that the right to medical care was a crucial facet of the right to life guaranteed under Article 21 of the Constitution and observed as under:
"494. The right to health is not simply the right not to be unwell, but rather the right to be well. It encompasses not just the absence of disease or infirmity, but "complete physical, mental and social well-being", [Preamble to the Constitution of the World 15 CP No.18/2023 in OA No.3668/2022 Health Organization.] and includes both freedoms such as the right to control one's health and body and to be free from interference (for instance, from non- consensual medical treatment and experimentation), and entitlements such as the right to a system of healthcare that gives everyone an equal opportunity to enjoy the highest attainable level of health."
28. In the context of a meaningful enjoyment of the right to health in Navtej Singh Johar, supra, Chandra, J pointed out that the brooding omnipresence of Article 21 was not merely confined to imposing negative obligations on the State. The Court went on to observe as under:
The jurisprudence of this Court, in recognizing the right to health and access to medical care, demonstrates the crucial distinction between negative and positive only negative obligations not to act in such a way as to interfere with the right to health. This Court also has the power to impose positive obligations upon the State to take measures to provide adequate resources or access to treatment facilities to secure effective enjoyment of the right to health."
29. In Parmanand Katara v. Union of India, (1989) 4 SCC 286, the Supreme Court was petitioned, under Article 32 of the Constitution, for a direction that every injured citizen brought to a hospital was entitled for medical aid and for all such measures as may be necessary to preserve life. In an oft-quoted passage, Ranganath Misra, J reminded doctors of their "total and paramount" obligation consistent with their Hippocratic oath to preserve life. The Court said "8. Article 21 of the Constitution casts the obligation on the State to preserve life. The provision as explained by this Court in scores of decisions has emphasized and reiterated with gradually increasing emphasis that position. A doctor at the government hospital positioned to meet this State obligation is, therefore, duty bound to extend medical assistance for preserving life. Every doctor whether at a government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way."
16 CP No.18/2023 in OA No.3668/202230. In Paschim Banga Khet Mazdoor Samity v. State of W.B., (1996) 4 SCC 37, the Supreme Court reiterated this responsibility in equally emphatic terms. The Court observed thus:
"9. The Constitution envisages the establishment of a welfare State at the federal level as well as at the State level. In a welfare State the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare State. The Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail of those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The government hospitals run by the State and the medical officers employed therein are duty-bound to extend medical assistance for preserving human life. Failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21."
8.2 Contempt Jurisdiction - Justice Wilmot in R. V. Almon 1765 Wilm 243 : 97 ER 94 in an undelivered judgment, provides a definition of the nature of the offence:
"The arraignment of the justice of the Judges, is arraigning the King's justice; it is an impeachment of his wisdom and goodness in his choice of his Judges, and excites in the minds of the people a general dissatisfaction with all judicial determination, and indisposes their minds to obey them; and whenever men's allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice."
8.3 In Re: Tarit Kanti Biswas, Printer ... vs Unknown on 27 June, 1917, 45 Ind Cas 338, the Hon‟ble Calcutta High Court observed as under :-
17 CP No.18/2023 in OA No.3668/2022"93. The power to punish for contempt is inherent in the very nature and purpose of Courts of Justice. It subserves at once a double purpose, namely, as an aid to protect the dignity and authority of the tribunal and also as an aid in the enforcement of civil remedies. The power may consequently be exercised in civil or criminal cases or independently of both, and either solely for the preservation of the authority of the Court or in aid of the rights of the litigant or for both these purposes combined. By reason of this twofold attribute, proceedings in contempt may be regarded as anomalous in their nature, possessed of characteristics which render them more or less difficult of ready or definite classification in the realm of judicial power. Hence, such proceedings have sometimes been styled sui generis. That they are largely of a criminal nature, inasmuch as the Court has power to convict and punish for the wrong committed, cannot be disputed, and yet it must be recognised that, in some respects, by reason of the end subserved, they partake of the nature of a civil remedy. This dual characteristic has given rise to many controversies, specially when questions have arisen as to right of appeal from the order passed [as in, Reg. v. Barnardu (1889) 23 Q.B.D. 305 : 58 L.J.Q.B. 553 : 61 L.T. 547 : 37 W.R. 789, Barnardo v. Ford (1892) A.C. 326 : 61 L.J.Q.B. 728 : 67 L.T. 1 : 56 J.P. 629, Relmore v. Smith (1886) 35 Ch. D. 449 : 56 L.J. Ch. 145 : 56 L.T. 72 : 35 W.R. 157, A.G.v. Kissane (1893) 32 Ir. L.R. 220, Hunt v. Olarte (1889) 58 L.J.Q.B. 490 :
61 L.T. 343 : 37 W.R. 724, Reg. v. Staffordshire County Court Jttdge(1888) 57 L.J.Q.B. 483 : 36 W.R. 796, O'Sheav. O'Shea (1890) 15 P.D. 59 : 59 L.J.P. 47 : 62 L. 713 : 38 W.R. 374 17 Cox. C.C. 107, Bessette v.
Conkey Co. (1904) 194 U.S. 324.; 48 Law. Ed. 997, Ohtislensen Engineering Co., In the matter of (1904) 194 U.S. 458 : 48 Law, Ed. 1072, Warden v. Searls (1887) 121 U.S. 14 : 30 Law. Ed. 853, Gompers v. Buck's Store do. (1911) 221 U.S. 418], the applicability of rules of evidence [Celluloid Co. v. Chrolithian Co. (1885) 24 Fed. 585, Bullock Co. v. West-inghouse Co. (1904) 63 C.C.A. 607 : 194 U.S. 636, J.E. 7 parte Gould (1893) 99 Cali. 360 : 21 L.R.A. 751 : 37 Am. St. Rep. 57], the finality of the judgment [.Fischer v. Hayes (1881) 19 Blatoh 13; C. Fed. 63. (74) (1869) 7 Blatoh 23 : 17 Fed. Cas. 9911. (75) (1893) 9 T.L.R. 196 and Re Mullee (174)], liability for payment of costs, Cornish, In re (75), Martindale, In re (1894) 3 Ch. 193 at p. 200 :
64 L.J. Ch. 9 : 8 Rule 729 : 71 L,. T. 468 : 43 W.R. 53 and Day v. Longhurst (1892) 62 L.J. Ch. 334 : 2 E. 234 : 68 L.T. 17 : 41 W.R. 283], right of trial by Jury, [Tinsely v. Anderson (1898) 171 U.S. 101 : 43 Law. Ed.
91, Ee Debs (1895) 158 U.S. 564 : 39 Law, Ed. 1092 and Eilenbecker v. District Court of Plymouth County, Iowa (1890) 134 U.S. 31 : 33 Law. Ed. 801] and other like matters. The difficulty in each case is to determine when a particular proceeding assumes the criminal 18 CP No.18/2023 in OA No.3668/2022 rather than the civil aspect, or when of both, and, if the latter, which feature must control. The question has been repeatedly and elaborately discussed by the Supreme Court of the United States: Kearney Ex parte (1882) 7 Wheat. 38 : 5 Law. Ed. 391", New Orleans v. New York Mail Steamship Co. (1874) 20 Wall. 387 : 22 Law. Ed. 354, Chiles, In re (1875) 22 Wall. 157 : 22 Law. Ed. 819. (S3) (1880) 102 U.S. 12]; 26 Law. Ed. 95, Hayes v. Fischer (1880) 102 U.S. 12]; 26 Law. Ed. 95, Warden v. Searls (1904) 194 U.S. 458 : 48 Law, Ed. 1072, Ex. Debs In re (1895) 158 U.S. 564 : 39 Law, Ed. 1092, O'Neal v. United States (1903) 190 U.S. 36 : 47 Law. Ed. 945, Christensen Engineering Co. In the matter of (1904) 194 U.S. 458 : 48 Law, Ed. 1072 Bessette v. Conkey Co. (1904) 194 U.S. 324.; 48 Law. Ed. 997, Doyle v. London Guarantee Co. (1907) 204 U.S. 559 and Gompers v. Buck's Stove Co. (1911) 221 U.S. 418. The view de-ducible from these decisions is in general agreement with what is indicated above, namely, a proceeding to punish for contempt has the essential qualities of a criminal proceeding, whether the proceeding is initiated primarily to vindicate the Court's authority or solely as a coercive and a remedial measure to enforce the rights of the litigant or for both these purposes combined. This must be so, since it necessarily results from the nature of the power to punish for contempt that whatever the primary purpose of such a proceeding may be, it is always within the power of the Court to make its judgment, in part, at least, punitive or vindicatory in character; in other words, where the sole purpose sought by initiating the proceeding is to secure the coercive and remedial action of the Court against a party, the Court may nevertheless, in its discretion, add a punishment, by way of fine or imprisonment, for the failure of the person in contempt to obey its mandate, I think it undeniable that the proceeding must be regarded from its inception to the point of judgment as of a criminal pature, or, at least potentially so, since until the judgment is given, it cannot be known what its character will be. It is the judgment, therefore, which must eventually in any case determine the character of the proceeding, and this leads to the conclusion that logically, perhaps, instead of characterising contempt proceedings as criminal or remedial according to circumstances, it is contempt judgments that should be so classified. In any view, there is no room for controversy that where, as here, the contempt consists in an attack upon the Court, the proceedings, instituted to vindicate its dignity, are of criminal nature, even though the attack has been made in connection with civil suits or appeals, either actually decided or pending or about to be taken up for disposal [Governor of Bengal v. Moti Lal 20 Ind. Cas. 81 : 41 C. 173 at p. 176 : 18 C.L.J. 452 : 14 Cr. L.J. 321 : 17 C.W.N. 1253]."
19 CP No.18/2023 in OA No.3668/20228.4 The case of S. Mulgaonkar vs. Unknown (1978) 3 SCC 339 is a landmark ruling on the subject of Contempt of Court, wherein following principles were laid:-
"(i) The first rule in this branch of contempt power is a wise economy of use by the Court of this branch of its jurisdiction. The Court will act with seriousness and severity where justice is jeopardized by a gross and/or unfounded attack on the judges, where the attack is calculated to obstruct or destroy the judicial process. The court is willing to ignore, by a majestic liberalism, trifling and venial offenses-the dogs may bark, the caravan will pass. The court will not be prompted to act as a result of an easy irritability.
Much rather, it shall take notice look at the conspectus of features and be guided by a constellation of constitutional and other considerations when it chooses to use, or desist from using, its power of contempt.
28. The second principle must be to harmonise the constitutional values of free criticism, the fourth estate included, and the need for a fearless curial process and its presiding functionary, the judge. A happy balance has to be struck, the benefit of the doubt being given generously against the judge, slurring over marginal deviations but severely proving the supremacy of the law over pugnacious, vicious, unrepentant and malignant contemners, be they the powerful press, gang-up of vested interests, veteran columnists or Olympian establishmentarians. Not because the judge, the human symbol of a high value, is personally armoured by a regal privilege but because 'be you-the condemner ever so high, the law- the People's expression of Justice-is above you. Curial courage overpowers arrogant might even as judicial benignity forgives errant or exaggerated critics. Indeed, to criticise the judge fairly, albeit fiercely, is no crime but a necessary right, twice blessed in a democracy. For, it blessed him that gives and him that takes. Where freedom of expression, fairly exercised, subserves public interest in reasonable measure, public justice cannot gag it or manacle it, constitutionally speaking. A free people are the ultimate guarantors of fearless justice. Such is the cornerstone of our Constitution; such is the 20 CP No.18/2023 in OA No.3668/2022 touchstone of our Contempt Power, oriented on the confluence of free speech and fair justice which is the scriptural essence of our Fundamental Law. Speaking of the social philosophy and philosophy of law in an integrated manner as applicable to contempt of court, there is no conceptual polarity but a delicate balance, and judicial 'sapience' draws the line.
29. The third principle is to avoid confusion between personal protection of a libeled judge and prevention of obstruction of public justice and the community's confidence in that great process. The former is not contempt, the latter is, although overlapping spaces abound.
30. Because the law of contempt exists to protect public confidence in the administration of justice, the offence will not be committed by attacks upon the personal reputation of individual judges as such.
31. The fourth functional canon which channels discretionary exercise of the contempt power is that the Fourth Estate which is an indispensable intermediary between the State and the people and necessary instrumentality in strengthening the forces of democracy, should be given free play within responsible limits even when the focus of its critical attention is the court, including the highest Court.
32. The fifth normative guideline for the judges to observe in this jurisdiction is not to be hypersensitive even where distortions and criticisms overstep the limits, but to deflate vulgar denunciation by dignified bearing, condescending indifference and repudiation:
by judicial rectitude.
33. The sixth consideration is that, after evaluating the totality of factors, if the court considers the attack on the judge or judges scurrilous, offensive, intimidatory or malicious beyond condonable limits, the strong arm of the law must, in the name of public interest and public justice, strike, a blow on him who challenges the supremacy of the rule of law by fouling its source and stream."
8.5 The Hon‟ble Apex Court in Delhi Development Authority vs Skipper Construction Company (P), (1996) 4 SCC 622, held as under:-
21 CP No.18/2023 in OA No.3668/2022"The contemnor should not be allowed to enjoy or retain the fruits of his contempt":
The principle that a contemnor ought not to be permitted to enjoy and/or keep the fruits of his contempt is well-settled. In Mohd.Idris v. R.J. Babuji [1985 (1) S.C.R.598], this Court held clearly that undergoing the punishment for contempt does not mean that the Court is not entitled to give appropriate directions for remedying and rectifying the things done in violation of its Orders. The petitioners therein had given an undertaking to the Bombay High Court. They acted in breach of it. A learned Single Judge held them guilty of contempt and imposed a sentence of one month's imprisonment. In addition thereto, the learned Single Judge made appropriate directions to remedy the breach of undertaking. It was contended before this Court that the learned Judge was not justified in giving the aforesaid directions to in additing to punishing the petitioners for contempt of court. The argument was rejected holding that "the Single Judge was quite right in giving appropriate directions to close the breach [of undertaking]".
The above principle has been applied even in the case of violation of orders of injunction issued by Civil Courts. In Clarke v. Chadburn [1985 (1) All.E.R. 211], Sir Robert Megarry V-C observed:
"I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Willful disobedience to an order of the court is punishable as a contempt of court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly effected some charge in the rights and liabilities of others, I cannot see why it should be said that although they ere liable to penalties for contempt of court for doing what they did, nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach in law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them."
(emphasis supplied).
"It is true that it is possible for a court, while exercising jurisdiction in contempt, to pass consequential orders in the nature of sequestration orders to secure the properties which the contemnor 22 CP No.18/2023 in OA No.3668/2022 had put beyond the reach of the court or which were acquired by the contemnor for himself or for any other person or entity by his wrongful acts. But there are two difficulties to undertake such exercise in contempt jurisdiction in the present matter. First, these noticees were not parties to the initial proceedings in this Court. Secondly, they have come up with a defence that all their acts were purely commercial in nature and it was the expediency of the situation which demanded such actions on their part. These issues need to be gone into at the appropriate stage(s)."( Ref: SPECIAL LEAVE PETITION (C) NO. 20417 OF 2017 M/s. DAIICHI SANKYO COMPANY LIMITED VERSUS OSCAR INVESTMENTS LIMITED & ORS. 22.09.2022.) 8.6 In Hukum Chand Deswal v. Satish Raj Deswal, 2020 SCC Online SC 438 wherein the celebrated judgment in Ram Kishan v. Tarun Bajaj, (2014) 16 SCC 204, has been quoted. The following paragraphs would govern the aforesaid principle:
"18. At the outset, we must advert to the contours delineated by this court for initiating civil contempt action in Ram Kishan vs. Tarun Bajaj & Ors.
In paragraphs 11, 12 and 15 of the reported decision, this Court noted thus:
"11. The contempt jurisdiction conferred on to the law courts power to punish an offender for his wilful 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 citizen 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 be 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 the contempt jurisdiction on mere probabilities. (Vide V.G. Nigam v. Kedar Nath Gupta, (1992) 4 SCC 697, Chhotu Ram v.23 CP No.18/2023 in OA No.3668/2022
Urvashi Gulati, (2001) 7 SCC 530, Anil Ratan Sarkar v. Hirak Ghosh, (2002) 4 SCC 21, Bank of Baroda v. Sadruddin Hasan Daya, (2004) 1 SCC 360, Sahdeo v. State of U.P., (2010) 3 SCC 705 and National Fertilizers Ltd. v. Tuncay Alankus, (2013) 9 SCC 600. 12. 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 a person/contemnor by gauging his actions, which is an indication of one's state of mind. "Wilful" means knowingly intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, bona fide 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 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 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 v. V.R. Attabiraman, (1985) 1 SCC 591, Rakapalli Raja Ram Gopala Rao v. Naragani Govinda Sehararao, (1989) 4 SCC 255, Niaz Mohammad v. State of Haryana, (1994) 6 SCC 332, Chordia Automobiles v. S. Moosa, (2000) 3 SCC 282, Ashok Paper Kamgar Union v. Dharam Godha, (2003) 11 SCC 1, State of Orissa v. Mohd. Illiyas, (2006) 1 SCC 275 and Uniworth Textiles Ltd. v. CCE, (2013) 9 SCC 753. xxx xxx xxx 15. It is well settled principle of law that if two interpretations are possible, and if the action is not contumacious, a contempt 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, (2008) 14 SCC 392 and Three Cheers Entertainment (P) Ltd. v. CESC Ltd., (2008) 16 SCC 592."
24 CP No.18/2023 in OA No.3668/20228.7 Similarly, in R.N. Dey & Ors. vs. Bhagyabati Pramanik & Ors., the Hon‟ble Apex Court expounded in paragraph 7 as follows:
"7. We may reiterate that the weapon of contempt is not to be used in abundance or misused. Normally, it cannot be used for execution of the decree or implementation of an order for which alternative remedy in law is provided for. Discretion given to the court is to be exercised for maintenance of the court's dignity and majesty of law. Further, an aggrieved party has no right to insist that the court should exercise such jurisdiction as contempt is between a contemner and the court. It is true that in the present case, the High Court has kept the matter pending and has ordered that it should be heard along with the first appeal. But, at the same time, it is to be noticed that under the coercion of contempt proceeding, appellants cannot be directed to pay the compensation amount which they are disputing by asserting that claimants were not the owners of the property in question and that decree was obtained by suppressing the material fact and by fraud. Even presuming that the claimants are entitled to recover the amount of compensation as awarded by the trial court as no stay order is granted by the High Court, at the most they are entitled to recover the same by executing the 6 (2000) 4 SCC 400 said award wherein the State can or may contend that the award is a nullity. In such a situation, as there was no wilful or deliberate disobedience of the order, the initiation of contempt proceedings was wholly unjustified." xxx xxx xxx
22. Pertinently, the special leave petitions were filed by the respondent against the order dated 28.1.2019, which as aforesaid, did not deal with the question regarding the monthly rent payable by the respondent but explicitly left the parties to pursue the same before the executing Court. The plaintiff/petitioner having acquiesced of that observation of the High Court, cannot be allowed to contend to the contrary.
The Hon‟ble Apex Court in Jhareswar Prasad Paul & Anr. vs. Tarak Nath Ganguly & Ors., in paragraph 11, opined thus:
"11. ... 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 25 CP No.18/2023 in OA No.3668/2022 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 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."
xxx xxx xxx
23. Thus understood, we find force in the explanation offered by the respondent that as per its bona fide understanding, there was no outstanding dues payable to the petitioner. Moreover, as observed by the High Court, these aspects could be answered by the executing Court if the parties pursue their claim(s) before it in that regard. Suffice it to observe that it is not a case of intentional violation or wilful disobedience of the order passed by this Court to initiate contempt action against the respondent. Instead, we hold that it would be open to the parties to pursue their claim(s) in execution proceedings or any other proceedings, as may be permissible in law in respect of the issue(s) under consideration. In such proceedings, all aspects can be considered by the concerned forum/Court on merits in accordance with law. We say no more.
24. Reverting to the allegation about damage caused to the suit property by the respondent at the time of vacating the same, in our opinion, the respondent has made out a formidable case that it did not cause any damage, much less permanent damage to the structure in the suit property. Whereas, the petitioner was relying on photographs concerning the debris on 26 CP No.18/2023 in OA No.3668/2022 the site left behind at the time of vacating the suit property. The debris cannot cause damage and it is certainly not a case of defacement of the suit property. That position is reinforced from the fact that the water park in the suit premises was started and became fully functional within 2-3 months. Viewed thus, it is rightly urged that it can be safely assumed that no damage was caused by the respondent to the structure in question. Minor repairs required to be carried out by the petitioner for making the water park functional cannot be painted as intentional disobedience of the order of this Court. In any case, that being a complex question of fact, need not be adjudicated in the contempt proceedings. We leave it open to the petitioner to pursue even that claim in execution proceedings or such other proceedings as may be permissible in law. We may not be understood to have expressed any final opinion in respect of condition of the suit premises, whilst handing over possession to the petitioner. We hold that even this issue under consideration does not warrant initiation of contempt action against the respondent."
"************* There is no material to either establish their knowledge on the action of their subordinates, or that they acted in collusion with each other. Vicarious liability as a principle cannot be applied to a case of contempt. The question as to whether the drivers of two members of the respondent no.1 showed the order passed by the court and the documents produced are true and genuine being in the realm of adjudication, ought not to have been taken up by the High Court while exercising contempt jurisdiction."(Ref: CRIMINAL APPEAL NO.1967 OF 2009 DR. U.N. BORA, EX. CHIEF EXECUTIVE OFFICER & ORS. VERSUS ASSAM ROLLER FLOUR MILLS ASSOCIATION & ANR. 26.10.2021)"
9. Based on the above cited case laws, the broad principles as a guarding lenses for any "Wilful Disobedience" of Court Order to do or abstain from doing any act, is a civil contempt and can be culled out as under:-
27 CP No.18/2023 in OA No.3668/2022i. The proceedings are quasi criminal in nature, and therefore, standard of proof required in these proceedings is beyond all reasonable doubt.
ii. It would rather be hazardous to impose sentence for contempt on the authorities in exercise of the contempt jurisdiction on mere probabilities.
iii. The word "wilful" introduces a mental element and hence, requires looking into the mind of a person/ contemnor by gauging his actions, which is an indication of one's state of mind. "Wilful" means knowingly intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, bona fide 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.
iv. The deliberate 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 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.
v. if two interpretations are possible, and if the action is not contumacious, a contempt proceeding would not be maintainable.
vi. Contempt jurisdiction cannot be used for execution of the decree or implementation of an order for which alternative remedy in law is provided for. Discretion given to the court is to be exercised for maintenance of the court's dignity and majesty of law. Further, an aggrieved party has no right to insist that the court should exercise such jurisdiction as contempt is between a contemner and the court.
vii. The court exercising contempt jurisdiction is 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 28 CP No.18/2023 in OA No.3668/2022 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.
viii. To 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.
ix. A complex question of fact, need not be adjudicated in the contempt proceedings.
x. In there any material to either establish their knowledge on the action of their subordinates, or that they acted in collusion with each other. Vicarious liability as a principle cannot be applied to a case of contempt.
xi. to prevent a continuing breach in which the party has acquiesced;
xii. when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;
xiii. when the conduct of the petitioner himself or his agents has been such as to disentitle him/her to the assistance of the court;
xiv. Other any other relevent material or documents which may be referred to in facts of the particular case."
10. Drawing inference from the above gamut of law and precedent(s), we will endeavor to discuss the same to facts of the present case.
11. In support of Contempt proceedings, what is to be seen is that the thrust of the argument of the learned counsel for the applicant is on the merits of the challenge to Transfer Order and Impugned Order passed on his representation, which is the subject matter of main OA itself.
29 CP No.18/2023 in OA No.3668/202212. At present we are concerned with the Contempt petition, which, undoubtedly, is a matter between the Court and the Contemnor. To look into the same, we make a reference to what draft charges in Contempt Petition are:-
"Whereas, this Hon‟ble Tribunal was pleased to stay the transfer order dated 23.09.2022 as well as rejection orders, vide dtd. 24.12.2022 in OA No.3668/2022, however, the respondents have violated the said order wilfully and deliberately inasmuch as, they have not allowed the petitioner to discharge his duties and responsibilities and at the same time issued order dated 12.1.2023 to replace the petitioner by another doctor namely, Dr. Surinder Kaur, GD MO(SAG)."
13. On perusal of the above, we now look into the Order dated 24.12.2022 (one of us i.e. Hon‟ble Mr. Manish Garg, Member (J) passed the Interim Order), which is also subject matter of contempt proceedings, the relevant portion of the same is re-produced as follows:-
"However, there is no reasoning given to the said para in the impugned office order thereby upholding the previous office order no. 74 dated 23.09.2022 deemed to the valid and justified. Even though, it is noticeable fact that Dr. Arun Kumar Gupta, who was junior to the present applicant and facing penalty of withholding of one increment for one year, was recommended by the Transfer Committee to the post as Director (Medical) Delhi in August, 2022 above the present applicant ignoring the fact that the applicant has already completed the age of 60 years and is entitled to the benefits as per para 5.2 of the Transfer policy. The impugned order has still been passed. The applicant has made out the prima-facie case for grant of the interim relief. Till the date, he has not been relieved.30 CP No.18/2023 in OA No.3668/2022
4. Issue notice to the respondents, returnable within two weeks to file reply. One week thereafter to the applicant to file rejoinder, if any.
5. List on 31.01.2023. Transfer order dated 23.09.2022 as well as rejection order be kept in abeyance till next date of hearing.
Order Dasti."
14. In the present context what is to be seen that though in present Contempt Petition, we are not to examine the merits of OA, which is distinct and independent, but for better appreciation of the facts narrated herein above, we would like to reproduce the relief(s) sought in main OA, which is as under :-
"(i) To quash and set aside the impugned order dated 09.12.2022, 23.09.2022 and 20.08.2022 to the extent the applicant has been transferred from ESIC Hospital, Sahibabad to Directorate (Medical) Delhi/Medical Dispensaries ESIC, Delhi.
(ii) To declare the action of the respondents in transferring the applicant from SAG Level Medical Officer post to Entry Grade/lower post in Medical Administration in ESIC as illegal and issue appropriate directions to continue the applicant at the present place of posting OR post him as Director (Medical) Delhi as per policy for posting to Medical Administrative Post in ESIC.
(iii) To quash and set aside the impugned transfer order dated 23.09.2022 to the extent R-4 has been posted as Director (Medical) Delhi by ignoring the claim of applicant and post the applicant as Director (Medical) Delhi.
(iv) Such other and further order which their Lordships of this Hon'ble Tribunal deem fit and proper may please be passed."
15. It is also important to note that OA was filed on 12.12.2022, the same was listed on 14.12.2022 and 31 CP No.18/2023 in OA No.3668/2022 thereafter, on 24.12.2022, the Interim Order was passed for which present Contempt Petition has been preferred.
16. On going through the facts as narrated in OA, we draw a reference to Annexure A- 7, which is re-produced as under :-
"Sub: Relieving of Medical Officers of ESIC as ordered vide transfer order 74/2022 on 30/09/2022 i.e. before the grievances is given to committee for its recommendation /kind considerations.
Sir, In reference to my earlier email dated 29/09/2022, it is very painful to inform to respected Director General sir that new Medical officer has joined at ESIC Hospital, Sahibabad on 30/09/2022 when I am continuing on Medical leave. The joining of the new MS before my grievances is given to committee for its recommendation/kind considerations thereby deteriorating the standard procedure of grievances mechanism. The last day of inviting grievances was 30/09/2022 and it seems that I am led to vacate my services at ESIC Hospital, Sahibabad without attainment of my complaint forcefully. At least a single day should have been given to address my grievances and a communication should have been sent to me. It is another proof of prejudiced action against me.
The matter is being put in the knowledge of DG sir for immediate relief under the principle of natural justice."
17. On perusal of the above, it transpires that the applicant was conscious of the effect of Office Order dated 30.09.2022, which is re-produced as under :-
"Subject: - Joining report in r/o Dr. Vanora E. Nongrum-SAG - reg.
In pursuance of ESIC Hqrs' O.O. no-74/2022 circulated vide file no-A-22/1/2022-Med-VI (Part-1) dated-32 CP No.18/2023 in OA No.3668/2022
23.09.22, and in compliance of ESIC Model Hospital, Noida O.O. No-160/2022 circulated vide File NO-211-A- 19(11)/596/2017-Med. Dated-20.09.2022, Dr. Vanora E. Nongrum-SAG has joined ESIC Hospital, Sahibabad, Ghaziabad in the FN of 30.09.22 as Medical Superintendent.
This is for your kind information and necessary action."
18. The above Office Order dated 30.09.2022 was neither filed nor brought to judicial notice of the Tribunal at the time of passing the Interim Order dated 24.12.2022. The Said Order is also not subject matter of challenge in main OA itself.
19. Attention is also invited by the Learned counsel for the respondents to the record of proceeding dated 23.01.2023 and 01.02.2023 in MA No.220/2023 (filed by the applicant on 13.01.2023 ), which are as follows:-
"M.A. No. 220/2023Issue notice to the respondents. Let the respondents file their reply within four weeks. Applicant's counsel may file rejoinder, if any, within four weeks thereafter.O.A. No.3668/2022
Learned counsel for the applicant draws our attention to the interim directions given by this Tribunal in O.A. No. 3668/2022 vide order dated 24.12.2022 wherein the impugned transfer order dated 23.09.2022 as well as the rejection order had been kept in abeyance till the next date of hearing.
Even before the next date of hearing, the respondents have passed contemptuous order dated 12.01.2023 at (Annexure CP-4) wherein Dr. Surinder Kaur, GDMO (SAG) Emp. No. 112181, who was earlier working at ESICH, Jhilmil, Delhi has now been ordered to be posted as MS, ESICH, Shahibabad whereas the applicant is already working and his transfer order had been stayed by the Tribunal. He requests that the said order be also kept in abeyance as it is in complete 33 CP No.18/2023 in OA No.3668/2022 violation of the directions given by this Tribunal vide order dated 12.01.2023.
In view of this, he has filed an M.A. No. 220/2023 wherein he prays for staying aforementioned office order No. 11 dated 12.01.2023 and for a direction to the respondents to allow the applicant to discharge his duties and responsibilities as MS, ESIC Hopital, Sahibabad.
Prima facie we find that despite clear directions given by this Tribunal vide interim directions dated 24.12.2022, wherein the transfer order of the applicant had been stayed, the respondents have issued orders posting Dr. Surender Kaur on the post which the applicant Dr. Pradip Kumar is already working.
In view of the above, the said impugned office order No. 11 dated 12.01.2023 qua Dr. Surender Kaur, GDMO (SAG) is stayed till the next date of hearing.
None for the respondents.
List on 10.02.2023.
Registry is directed to delete the name of Ms. Anupama Bansal, learned counsel, as counsel for respondents in future causelists.
Order dasti."
20. The Contempt Petition was filed on 13.01.2023.
Notices on MA No.220/2023 as well as Contempt Petition No.18/2023 were issued on 23.01.2023 (wrongly mentioned as order on OA No.3668/2022).
21. It is also pertinent to note that respondents filed counter reply to OA on 30.01.2023 and reply to contempt petition on 09.02.2023, wherein they placed on record Office Order dated 10.12.2022, which is re-
produced as under:-
"Subiect- Relieving in r/o Dr. Pradip Kumar, GDMO (SAG) (Emp. ID-112130).34 CP No.18/2023 in OA No.3668/2022
Sir, In pursuance of speaking order issued by Director General, ESIC, New Delhi vide letter no. A-22/1/2022- Med-VI-Part(2) dated: 09.12.2022 and ESIC Hqrs Office Order no. 74 of 2022 dated 23.09.2022 circulated vide letter no. A-22/1/2022-Med-VI-Part(1), Dr. Pradip Kumar, GDMO (SAG) (Emp. ID-112130) stands relieved from ESIC Hospital, Sahibabad in the forenoon of 10.12.2022 with the direction to report for his duty at Directorate (Medical) Delhi as Medical Officer on Monday, the 12.12.2022, FN positively which was communicated through e-mail dated-10.12.22 to individual and your good office also.
It is also informed that Dr. Pradip Kumar, GDMO (SAG), Emp. ID-112130 came to office today and was handed over the above orders but he refused to receive the orders.
This is for your kind information and necessary action at your end.
Sd/-
(Dr. Vanora E.Nongrum) Medical Superintendent"
22. During the course of arguments much stress was laid by the learned counsel for applicant that the above Office Order dated 10.12.2022 could not have been passed by Dr. Vanora E.Nongrum in the capacity of Medical Superintendent, ESIC Hospital, Sahibabad.
The said order ought to have been passed by the Director General of the respondent authority. The said argument is without any substance inasmuch as there is neither any pleading nor submission on the grounds urged in the Contempt Petition that the Office Order dated 10.12.2022 was a nullity having been passed by 35 CP No.18/2023 in OA No.3668/2022 an incompetent authority. Fact of the matter is that the said Office Order dated 10.12.2022 was neither filed along with the OA nor along with MA No.220/2023 as well as in the present CP No.18/2023. It is inconceivable to think that the applicant would not have knowledge of the Office Order dated 10.12.2022. It is also highlighted that the said Office Order dated 10.12.2022 has become inconsequential in subsequent developments wherein as on date, one Dr. Neelam Nag is officiating on the post of Medical Superintendent, ESIC Hospital, Sahibabad.
23. There was no interim order dated 24.12.2022 as to who shall be discharging the duty as on the date of passing the Order dated 24.12.2022. It could be either Dr. Surinder Kaur, GDMO (SAG) or the applicant or any other doctor. Only the Order of relieving was kept at abeyance. Since, it is the applicant who is aggrieved by the non-compliance of interim order, it casts upon him a fundamental duty to correctly represent and inform the Court about correct status of any relieving order, which in the present case the applicant failed to do so. The records would reveal that there is no challenge to Office Order dated 30.09.2022, 10.12.2022 and 13.12.2022, which the petitioner ought to have dealt in the manner 36 CP No.18/2023 in OA No.3668/2022 prescribed under law. It is also astonishing to note that the applicant in MA No.220/2022 did not bring to judicial notice in Interim Order dated 23.01.2023 that Dr. Neelam Nag is officiating vide Office Order dated 13.12.2022, on the post of MS, ESIC Hospital, Sahibabad, UP and Dr Surinder Kaur, GDMO (SAG) was no longer the MS nor was Dr. Vanora E Nongrum, holding the said post. In fact, the applicant proceeded on leave w.e.f 10.12.2022. We refrain from commenting upon the conduct of the applicant at this stage i.e. continuing breach, if any, in which the party has acquiesced.
24. The fact of the matter is that Interim Order dated 24.12.2022 has been acted upon as the applicant‟s posting has been kept in abeyance by virtue of continuation of interim order(s) till date. In fact, the Relieving Order has been kept at abeyance. However, one Dr. Neelam Nag is officiating on the post of MS, ESIC, Sahibabad, UP. Hence, we do not find any deliberate conduct on the part of respondents in defiance of interim order(s) passed by this Tribunal.37 CP No.18/2023 in OA No.3668/2022
CONCLUSION:
25. In view of the above backdrop, more particularly, in light of Hippocratic Oath taken by the doctors, a word of caution for the applicant as well as the respondent authorities that they must act in accordance with the „Right to Health‟ of the public which ought to be their paramount objective. Their efforts should be focused on the patients as they both have a fiduciary relationship, rather than getting involved in a narrow compass in posing a legal challenge to the validity of transfer of doctors.
25. In view of the above discussion, what emerges is that in light of the draft charges, since there is no challenge to Office Orders dated 30.09.2022, 10.12.2022, and 13.12.2022 and also the fact that Interim Order dated 24.12.2022 has been acted upon as the applicant‟s posting has been kept in abeyance by virtue of continuation of interim order(s) till date, as such there is no merit in the contempt petition. There was no direction in the Interim Order dated 24.12.2022 as to who shall discharge the duties of the post of Medical Superintendent, hence, the Contempt Proceedings are closed. Notices stand discharged.38 CP No.18/2023 in OA No.3668/2022
26. In so far as Interim Order dated 23.01.2023 (passed by this Division Bench) in MA No.220/2022 in OA No.3668/2022 (filed by the applicant on 13.01.2023) is concerned, the same has become infructuous inasmuch as the applicant in MA No.220/2022 did not bring to judicial notice that Dr. Neelam Nag had taken over charge and Dr. Surinder Kaur, GDMO (SAG) was no longer the MS nor was Dr. Vanora E Nongrum. In fact, the applicant had proceeded on leave w.e.f 10.12.2022 and thereafter, on frequent intervals till Order dated 23.01.2023 was passed by this Tribunal.
Hence, the MA stands disposed of as infructuous.
27. All pending MA(s) in the CP as well as subsequently filed and heard by Division Bench of this Tribunal are disposed of accordingly,
28. We are conscious of the fact that we are not sitting as Appellate Court or in exercise of revisional jurisdiction, it is deemed appropriate that the matter in the main OA be placed before an appropriate Bench for disposal in accordance with law. Till the next date of hearing, interim order(s) on transfer of the applicant shall be kept in abeyance, it shall be open to the appropriate Bench of this Tribunal to pass such directions as the facts and circumstances presented 39 CP No.18/2023 in OA No.3668/2022 before it may justify in the main OA without being influenced by our observations in present Contempt Petition. All pending proceedings thereto shall be taken to logical conclusion in accordance with law.
29. List the OA before an appropriate Bench on 28.04.2023.
(Manish Garg) (Anand Mathur) Member (J) Member (A) /sd/