Niaz
Mohammad Vs. State of Harayana [1994] INSC 486 (20 September 1994)
Singh
N.P. (J) Singh N.P. (J) Venkatachalliah, M.N.(Cj) Kuldip Singh (J)
CITATION:
1995 AIR 308 1994 SCC (6) 332 JT 1994 (6) 260 1994 SCALE (4)292
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by N.P. SINGH, J.- These petitions have
been filed for initiating proceeding for contempt, against the respondents, for
having disobeyed and ignored the order passed by this Court on 2-6-1988 in Jaipal v. State of Haryana1.
2. The
petitioners were working as instructors under the Adult and Non. formal
Education Scheme, under the Education Department of Haryana. The object of the
said Scheme was to impart literacy (functional and awareness) to the adult
illiterates in age group of 15-35 years and to provide literacy to the children
in the age group of 5-15 years, who were drop-outs from the primary and middle
school level or who had never joined any regular school. At the relevant time
there was another Scheme known as State Social Education Scheme in the State of
Haryana, for imparting education to the
illiterates, in the villages known as State Adult Education Programme. The
teachers employed under the Scheme were known as squad teachers.
3. In
the year 1981 the services of the head squad teachers and squad teachers were regularised
and the pay scales of regular Headmasters and teachers of primary schools
maintained by the State Government were given to them. The petitioners in the
aforesaid writ petition claimed that they were also performing the same nature
of duties as performed by squad teachers as such they were also entitled to pay
scales of the squad teachers under the Education Department along with other
benefits from the date they were initially appointed.
4. On
behalf of the State, this claim was contested.
According
to the State, the writ petitioners who were instructors, did not perform
similar duties as performed by squad teachers. But it was said by this Court:
"There
is no doubt that instructors and squad teachers are employees of the same
employer doing work of similar nature in the same Department, therefore the
appointment on a temporary basis or on regular basis does not affect the
doctrine of equal pay for equal work. Article 39(d) contained in Part IV of the
Constitution ordains the State to direct its policy towards securing equal pay
for equal work for both men and women. Though Article 39 is included in the
Chapter on Directive Principles of State Policy, but it is fundamental in
nature. The purpose of the article is to fix certain social and economic goals
for avoiding any discrimination amongst the people doing similar work in
matters relating to pay. The doctrine of equal pay for equal work has been
implemented by this Court in Randhir Singh v. Union of India2, Dhirendra Chamoli
v. 1 (1988) 3 SCC 354: 1988 SCC (L&S) 785 :(1988) 7 ATC 771 2 (1982) 1 SCC
618: 1982 SCC (L&S) 11 9 335 State of U.P3 and Surinder Singh v.
Engineer-in-Chief, CPWD4. In view of these authorities it is too late in the
day to disregard the doctrine of equal pay for equal work on the ground of the
employment being temporary and the other being permanent in nature. A temporary
or casual employee performing the same duties and functions is entitled to the
same pay as paid to a permanent employee.
The
respondents' contention that the mode of recruitment of petitioners is
different from the mode of recruitment of squad teachers inasmuch as the
petitioners are appointed locally while squad teachers were selected by the
Subordinate Service Selection Board after competing with candidates from any
part of the country. Emphasis was laid during argument that if a regular
selection was held many of the petitioners may not have been appointed they got
the employment because outsiders did not compete. In our opinion, this
submission has no merit. Admittedly, the petitioners were appointed on the
recommendation of a Selection Committee appointed by the Adult Education
Department. It is true that the petitioners belong to the locality where they
have been posted, but they were appointed only after selection, true that they
have not been appointed after selection made by the Subordinate Service
Selection Board but that is hardly relevant for the purposes of application of
doctrine of 'equal pay for equal work'. The difference in mode of selection
will not affect the application of the doctrine of 'equal pay for equal work'
if both the classes of persons perform similar functions and duties under the
same employer." Ultimately it was held that instructors were entitled to
the same pay scale as sanctioned to the squad teachers and a direction was
given to fix the scale of pay of the instructors with effect from the date of
their initial appointment by ignoring the break in service on account of six
months' fresh appointments.
5.
From the judgment aforesaid, it appears that the aforesaid direction had been
given to the State of Haryana.
In the
writ petition aforesaid, Union of India had not been impleaded as a party. At
some later stage Union of India was added as a pro forma respondent. From the
judgment it does not appear that Union of India was involved in any manner in
the implementation of the scheme.
6. In
the present petition for initiating the proceeding for contempt of this Court,
against the respondents, it has been alleged that by not having paid the
arrears of salary to the instructors, in terms of the aforesaid order passed by
this Court, respondents are liable to be punished. On 7- 8-1991 this Court passed the following order:
"State
counsel is granted three months' time for making the payments. List the matter
s after three months." Yet another order was passed on 11-11-1991 saying:
3
(1986) 1 SCC 637 : 1986 SCC (L&S) 187 4 (1986) 1 SCC 639: 1986 SCC
(L&S) 189 336 "The judgment of this Court requiring the respondent to
pay salary to the teachers is binding on the State of Haryana as well as on the
Union of India. We, accordingly, direct the Union of India and the State of Haryana both to make joint efforts and to
use the resources for paying the amount due to the teachers within 2 months.
List
the application after two months." Thereafter a petition was filed on
behalf of the Union of India for modifying the aforesaid order dated 11-11-1991
saying that in view of the specific direction given in the judgment of this
Court, which is sought to be enforced by the petitioners, there was no occasion
to issue any direction to the Union of India by the aforesaid order dated
11-11-1991 because the direction which is sought to be enforced in the
proceeding for contempt, has to be complied with by the State of Haryana. On
4-11-1992 this Court heard the counsel, appearing for Union of India, State of Haryana
and the petitioners and granted permission to the Union of India to convert the
application for modification of order dated 11 -11-1991, into a review
petition.
7. It
appears to be an admitted position that by virtue of the judgment aforesaid
directing that the instructors under the Adult and Non-formal Education Scheme
of the Education Department of the State of Haryana, be treated on a par with
squad teachers under the Social Education Scheme of the Education Department of
the same State for purpose of payment of salary and other emoluments with
effect from the date of their initial appointments, the total liability created
is about 28 crores of rupees. On behalf of the State of Haryana, it was stated that this Court
itself was not conscious, when the aforesaid writ petition was allowed, about
the nature of financial burden. Mr Sachar, who appeared for the State of Haryana, categorically stated that unless
Union of India contributes and bears a part of the burden aforesaid which has
been caused on the State of Haryana, it is
not possible to comply with the direction given in the aforesaid judgment. In
that connection he informed the Court that with great difficulties, in order to
comply with the direction of this Court, Rs 20 crores have been arranged and
paid to the different instructors under the Adult and Non-formal Education
Scheme, f which was a temporary scheme. He expressed the predicament of the
State of Haryana in releasing any further fund,
beyond what has already been paid, and sought a direction to the Union of India
to contribute the balance of the amount.
8.
During hearing of the application, reference was made to later judgments of
this Court, where Benches consisting of three Judges have reviewed all the
earlier judgments of this Court in respect of the doctrine of "equal pay
for equal work". Special reference was made to the judgment in the case of
State of M. P v. Pramod Bhartiya5, where it has been pointed out that the
doctrine of equal pay for equal work was neither a mechanical rule nor does it
mean geometrical equality. The concept of reasonable classification and all
other rules evolved with respect to Articles 14 and 5 (1993) 1 SCC 539: 1993
SCC (L&S) 221 :(1993) 23 ATC 657 337 16(1) come into play wherever
complaint of infraction of the said rule falls for consideration. It was
further said that it was not enough to say that the qualifications were same or
the schools were of the same status or the service conditions were similar,
what was more crucial was whether they discharge similar duties, functions and
responsibilities. The burden to prove that in all respects, the two groups are identical,
was on the petitioners, who claimed equal pay. According to us, now it is not
open for this Court to examine the correctness of the view expressed and the
direction given in favour of the petitioners, the disobedience of which is the
subject-matter of the present controversy.
9.
Section 2(b) of the Contempt of Courts Act, 1971 (hereinafter referred to as
'the Act') defines "civil contempt" to mean "wilful disobedience
to any judgment, decree, direction, order, writ or other process of a
court...... Where the contempt consists in failure to comply with or carry out
an order of a court made in favour of a party, it is a civil contempt, The
person or persons in whose favour such order or direction has been made can
move the court for initiating proceeding for contempt against the alleged contemner,
with a view to enforce the right flowing from the order or direction in
question. But such a proceeding is not like an execution proceeding under Code
of Civil Procedure. The party in whose favour an order has been passed, is
entitled to the benefit of such order. The court while considering the issue as
to whether the alleged contemner should be punished for not having complied
with and carried out the direction of the court, has to take into consideration
all facts and circumstances of a particular case. That is why the framers of
the Act while defining civil contempt, have said that it must be wilful
disobedience to any judgment, decree, direction, order, writ or other process
of a court. Before a contemner is punished for non-compliance of the direction
of a court, the court must not only be satisfied about the disobedience of any
judgment, decree, direction or writ but should also be satisfied that such
disobedience was wilful and intentional.
The
civil court while executing a decree against the judgment-debtor is not
concerned and bothered whether the disobedience to any judgment, or decree, was
wilful. Once a decree has been passed it is the duty of the court to execute
the decree whatever may be consequence thereof. But while examining the
grievance of the person who has invoked the jurisdiction of the court to
initiate the proceeding for contempt for disobedience of its order, before any
such contemner is held guilty and punished, the court has to record a finding
that such disobedience was wilful and intentional. If from the circumstances of
a particular case, brought to the notice of the court, the court is satisfied
that although there has been a disobedience but such disobedience is the result
of some compelling circumstances under which it was not possible for the contemner
to comply with the order, the court may not punish the alleged contemner.
10. In
the present case, there is no specific direction in the aforesaid judgment of
this Court dated 2-6-1988 in the connected writ petition, to
pay any particular amount to the instructors. This Court has simply decided the
question as to whether they are entitled to the scale of pay which has been
given to squad teachers. Having decided that question in favour of the 338
instructors, this Court directed that arrears be paid to the instructors w.e.f.
their respective dates of appointments, treating them on a par with the squad
teachers. This direction will involve payment of about 28 crores of rupees was
neither known to the Court nor to the parties to that proceeding. As such, this
Court is now entitled to examine the question as to whether in the special
facts and circumstances of the present case, the respondents should be punished
for having committed contempt of this Court. In the case of Dushyant Somal v. Sushma
Somal6 this Court said:
(SCC
p. 281) "Nor is a person to be punished for contempt of court for
disobeying an order of court except when the disobedience is established beyond
reasonable doubt, the standard of proof being similar, even if not the same, as
in a criminal proceeding. Where the person alleged to be in contempt is able to
place before the court sufficient material to conclude that it is impossible to
obey the order, the court will not be justified in punishing the alleged contemner."
In Halsbury's Laws of England, 4th Edn., Vol. 9, para 53, p. 34, it has been
said:
"Although
contempt may be committed in the absence of wilful disobedience on the part of
the contemner, committal or sequestration will not be order unless the contempt
involves a degree of fault or misconduct." It has been further stated:
"In
circumstances involving misconduct, civil contempt bears a twofold character,
implying as between the parties to the proceedings merely a right to exercise
and a liability to submit to a form of civil execution, but as between the
party in default and the State, a penal or disciplinary jurisdiction to b e
exercised by the court in the public interest."
11.
Taking all facts and circumstances into consideration, we are satisfied that in
the facts and circumstances of the present case, there is no wilful
disobedience on the part of the respondents in complying with the direction
given by this Court in the aforesaid judgment. It cannot be disputed that when
the aforesaid direction was given, this Court was not conscious that the
direction had created a liability for payment of about 28 crores of rupees, as
arrears to the instructors in the Adult and Non-formal Education Scheme under
the Education Department in the State of Haryana. Out of that amount about 20 crores
of rupees have already been disbursed for different periods to the instructors.
In this background, it is not possible to hold that respondents have committed
contempt of this Court, for which they ought to be punished by this Court.
Accordingly,
all the petitions including 'AT (C) Nos. 401 and 784 of 1989 are dismissed.
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