Gauhati High Court
Rakhal Ch. Dey And Ors. vs Dr. Surendra Nath Sarma And Ors. on 20 February, 2004
Equivalent citations: (2004)3GLR214
JUDGMENT B.K. Sharma, J.
1. Alleging violation of the order dated 7.4.1999 passed in C.R No. 6616/1998 the contempt application has been filed. The said order dated 7.4.1999 is quoted below :
"Heard learned counsel for the petitioners. None appears for the Respondents Perused the writ petition and the document annexed, specially Annexure 14, a certificate issued by the Depot-in-charge, FCI Gossaigaon certifying that the petitioners have been working since 22.5.1986 as ancillary labours in the godown of FCI, at Gossaigaon and even now working as such. The learned counsel for the writ petitioners submits that although the writ petitioners are working as ancillary labourers, their wages have not been paid.
In view of the submission as above, this writ petition is disposed of with a direction that the respondent Nos. 4, 5, 6 and 7 shall examine the claim of the writ petitioners and make payment of the arrears of wages as payable to them in accordance with law within a period of one month from the day a copy of this order is furnished to them by the petitioners. No costs."
2. As per the said direction the four respondents as indicated in the order were to examine the claim of the writ petitioners for payment of the arrears of wages as payable to them in accordance with law within a period of one month from the date of furnishing a copy of the order.
3. As per the averments made in the contempt petition a copy of the order dated 7.4.1999 was served on the Respondents on 9.4.1999 followed by further representation which, however, yielded no result. As against the period of time fixed in the aforesaid order dated 7.4.1999 the petitioners were paid their wages at a later point of time. However, nothing has been stated as to when such payments were made. In this connection Paragraph 4 of the Contempt petition is quoted below :
"4. That it is respectfully submitted that this Hon'ble Court in its Judgment and order in Civil Rule No. 6616/99 was pleased to direct the contemners to pay wages to the petitioners w.e.f. 22.5.1986 but the contemners have paid wages to the 8 petitioners only and that too w.e.f.
April 1992 to May 1999 instead of paying the same w.e.f. 22.5.1986.
Further in violation of the orders of the Hon'ble Court in the above mentioned civil rule the contemners paid wages which were of course not in commensurate with the direction of this Hon'ble Court only to the 8 petitioners and the Nineth petitioner of the civil rule, i.e., Shiakat Ali has been paid no wages at all which is a violation of the court's order.
Still more, the contemners have calculated less wages then what is provided under the provisions of the rules to be paid to the departmental labours."
4. As per the aforesaid averments alleged contemners have paid wages to the 8 petitioners only out of 9 petitioners and that too with effect from April 1992 to May 1999 instead of paying the same with effect from 22,5.1986. Further assertion made by the petitioners is that alleged contemner have paid lesser wages then to their entitlement under the provisions of the Rules. According to the petitioners the said act of alleged contemners are in violation of the aforesaid order dated 7.4.1999 passed in Civil Rule No. 6616/98. Accordingly a prayer has been made for drawing up contempt of court proceeding against the alleged contemners.
5. The alleged contemners/Respondents have filed their affidavit denying the contentions raised in the contempt petition. According to the averments made in the said affidavit there is no violation of the aforesaid order dated 7.4.1999. Their stand in the affidavit is reflected in Paragraph 6 which is quoted below :
"6. That the statements made in paragraphs 3 and 4 of the contempt petition are not correct and the deponent denies all such statements. The answering opposite parties states that there was no provision of ancillary labourer in the Food Corporation of India from May 1986 to December 1991 and the casual labourers were engaged by quality control section for quality control works. The payment made to the petitioners by the management Food Corporation of India are quoted as follows :
(i) During the period from 22.5.1986 to 31.12.1986 the handling and transport works of Food Storage Depot, Gossaigaon carried out departmentally as per existing schedule of rate and all the handling bills are regularised and payment made to the labour through the depot incharge Food Corporation of India, Gossaigaon. The payment of Ancillary Labour for the period from 22.5.1986 to 31.12.1986 does not arise.
(ii) During the period from November 1988 to December 1990 an amount of Rs. 10,593 has been paid to the Sardar Sri Nagendra Thakur (the respondent No. 9 in the writ petition CR No. 6616/98 of FSD, Gossaigaon to make payment to the petitioner to and accordingly the payment were made to the petitioners which will be evident from the equittance toll for the aforesaid period.
(iii) The opposite party No. 4 made payment to the petitioners No. 1 to 8 as per the State Government rate for unskilled labours with effect from 22.5.1986 to 31.7.1989 @Rs. 17 and with effect from 1.8.1989 to 31.3.1992 @ Rs. 25 per day.
(iv) As per the Head Quarter Circular No. IR(L)8(3)/92 dated 8.5.1992 the payments to be petitioner No. 1 to 8 were made from 1.4.1992 to 31.12.1993 according to Minimum Wages Act and from 1.1.1994 to 31.3.99 according to the Direct payment system.
(v) In respect of payment to the petitioner No. 9 the answering opposite parties states that the payment could not be made to him due to the fact that he could not produce death certificate and other related papers in order to claim amount payable to him as legal heirs of late Kismat Sheikh.
The allegation that less amount of wages are being paid to the petitioners are not correct. The petitioners are getting wages as per with other direct payment system workers. The answering opposite parties beg to state that since the matter relates to 12/13 years back delay had taken place in releasing payments for this period to the petitioner. The opposite parties execised their best effects to search out the records but they were prevented by many obstacles since Kokrajhar is an insurgency prons area and frequently staff got obstacles in coming to the office due to frequent bandhs and dislocation of vehicular traffic. However, payment for the aforesaid period has already been made as per state Government minimum wage notification due to non-availability of the records for the period 22.5.1986 to December, 1991."
6. The alleged contemners/Respondents has also filed Additional Affidavit in respect of their stand. In paragraph 7 of the said Affidavit they have given details about the payments made to the petitioner Nos. 1 to 8 and 9. In support of such payment they have also annexed the cash voucher. As regards the allegation made in the affidavit in reply filed by the petitioners in respect of the affidavit filed by the alleged contemners/Respondent relating to the petitioner No. 9, it has been stated that the said petitioner has been working in the FCI, Gossaigaon after the death of his father. His case was considered as per the direction of this court and was found that at no point of time the petitioner No. 9 was appointed as ancillary labour. The petitioner No. 9 was given time to produce any record showing his engagement as ancillary labour.
As regards the certificate given by the Depot Incharge certifying that the father of the petitioner No. 9 late Kismat Sheikh had been working since 22.5.1986 as Ancillary labour, it has been stated in the Additional Affidavit that the Depot Incharge does not have the authority to allow the petitioner No. 9 to work in place of his deceased father and that said certificate is the product of unholy nexus between the Depot Incharge and the petitioner No. 9 and the FCI is not responsible for the said certificate. Though the alleged contemner/Respondents have disowned the certificate in respect of petitioner No. 9. The said certificate is in respect of the deceased father of the petitioner No. 9. As regards the petitioner No. 9 it has been certified that in place of the deceased father the petitioner has been working. However, nothing has been mentioned as to from which date he has been allegedly working.
7. I have heard Learded Sr. counsel Mr. A..K. Bhattacharyya appearing for the petitioners and Mr S. Dutta, learned counsel appearing for the alleged contemners/Respondents. During the course of argument Mr Bhattacharyya submitted that although in the order dated 7.4.1999 the direction was in respect of 9 petitioners, the said direction will also include the deceased father of the petitioner No. 9 who was not represented in the writ proceeding. Refering to the Additional Affidavit in reply filed by the petitioners to the Affidavit in Opposition, raising number of disputed questions of fact.
Mr Bhattacharyya submitted that basically the grievance of the petitioner is that while implementing the aforesaid order of this court the Respondents deliberately did not take into account the true spirit and import of the said order and thereby the petitioners have been deprised of their due wages as admissible under the Rules.
8. Mr Dutta, learned counsel for the Respondents submitted that the petitioners have already been paid their dues as admissible under the Rules and they have already complied with the direction as contained in the order dated 7.4.1999. He submitted that as per the said direction the Respondents were to examine the claim of the writ petitioner and to make payment of the arrear wages as payable to them in accordance with law. The Respondents have already examined their claim and have paid the wages as per their entitlement. He submitted that this court while passing the order dated 7.4.1999 did not direct the Respondents/contemners to make the payment in any particular rate and the case is now being diverted by the petitioners by filling their affidavit in reply and additional affidavit in reply, which according to him cannot be pressed into service in the contempt proceeding.
9. I have considered the rival submissions made on behalf of the petitioners and the alleged contemners. On the face of the order dated 7.4.99 this court only provided that the Respondents concerned should examine the case of the petitioners and make their payments in accordance with law. The Respondents have already carried out the said direction of this court. The contentions raised on behalf of the petitioners that since this court directed the Respondents to examine the claim of the petitioners as per law, it was incumbent upon the Respondents to consider the case of the petitioners as per their entitlement as reflected in Annexure IV representation dated 30.7.99 annexed to the contempt petition in terms of which the petitioners were/ are entitled to their wages in the time scale of pay as indicated in the said representation is not at all tenable. The only averment made in the contempt petition is to the following effect:
"Still more, the contemners have calculated less wages than what is provided under the provisions of the rules to be paid to the Departmental labours".
10. While enclosing a copy of the representation dated 5.8.99 (Annexure 5 to the writ petition), the petitioners have not made any statement in the Contempt petition except that they submitted amongst others the petition dated 5.8.99.
11. Contempt jurisdiction is of a special nature and should be sparingly used, it cannot be invoked unless there is real prejudice which can be regarded as substantial interference with the due course of justice. The court will not exercise it upon a mere question of propriety nor as a cloak to invite a decision on an important disputed and collateral question of fact as to whether the petitioners were entitled to any time scale of pay as their wages. It is highly necessary in all questions of that nature where the powers of the court have to be exercised in a summary manner, that the court in dealing with the alleged "contempt should not proceed otherwise than with great caution and deliberation. A statistical approach in a contempt proceeding is neither proper nor judicial. A contempt proceeding is judicially punitive in nature and not remedial, even though the effect of proceeding in cases of willful disobedience of the Judgment or orders may compel compliance of the same. It is not sufficient in such cases for the purpose of initiating a proceeding of contempt simply because one committed an error in the Judgment or order passed by him in exercise of authority vested in him. The error must be willful and deliberate.
12. In the instant case, the direction as contained in the order dated 7.4.1999 has been carried out howsoever erroneous that could be. The petitioners have sought to put up their case that the wages paid to them are not commensurating to their entitlement and this court having provided to pay the wages in accordance with law, this court-on interpretation of the said law in this contempt proceeding should pass appropriate orders. I am afraid such a course of action/approach is not permissible in a contempt proceeding. In this proceeding it is only to be judge as to whether there is any willful or deliberate violation of the aforesaid order dated 7.4.1999. The Respondents have well explained the exercise they undertook and completed pursuant to the aforesaid order dated 7.4.1999. There is no willful or deliberate violation on the part of the Respondents against the said order dated 7,4.1999. By keeping the contempt proceeding hanging over the head of the contemners they cannot be forced to act in a particular manner to the likings of the petitioners or as the petitioner may think that they are entitled to some more wages. This court in the aforesaid order dated 7.4.1999 never issued any direction to grant any time scale of pay to the petitioners. Only direction was to consider their case as per law. The argument made on behalf of the petitioners is that the law should be interpreted in the contempt proceeding as regards the entitlement of the actual wages by the petitioners. For that purpose, the contempt proceeding cannot be converted into a writ proceeding,
13. In view of the above, I do not find any merit in this contempt petition and the same is dismissed without, however, awarding any costs.