Jhareswar
Prasad Paul & Anr Vs. Tarak Nath Ganguly & Ors [2002] Insc 265 (8 May 2002)
D.P.Mohapatra
& K.G.Balakrishna D.P.Mohapatra,J.
Appeal (crl.) 171 of 1996
In
these appeals filed by special leave the appellants have challenged the
judgment/order dated 11.11.1992 passed by the High Court at Calcutta in the
contempt proceeding, Civil Rule No.2197(W)/88, holding inter alia, that the
respondents have not complied with the order dated 29.2.1988 of the Court
effectively and in appropriate manner.
The
relevant facts of the case giving rise to the proceeding may be stated thus :
The
respondents, 27 in number, were holding posts of clerk-cum-cash collector in
the Directorate of Dairy Development, Government of West Bengal. They filed
writ petition No.CO 8793(W) of 1984 raising a grievance that though they have
been holding the posts since long and have been doing clerical work similar to
those of lower division clerks in the department they have not been given the
benefit provided under the Government Order No.3868-F dated 31.3.1984. In the
said Government Order it was ordered, inter alia, that members of the Lower
Division Clerical cadre will be entitled to promotion to the Upper Division
Clerical cadre on the ratio of 1:1 and the order was applicable to Lower Division
Clerks/Assistants in all Government Departments and Directorates including the
Directorate of Dairy Development.
The
further grievance of the writ petitioners was that they were denied the benefit
of promotion and consequent financial benefits envisaged under the
aforementioned Government order merely for the reason that designation of the
posts held by them was clerk-cum-cash collector and not Lower Division
Clerk/Assistant. It was the case of the petitioners that the duties discharged
by them are similar to those of the Lower Division Assistants and in addition
to such duties they also do the work of collection of cash. Therefore, there
was no justification, to deny them the benefits of the aforementioned
Government order. The petitioners sought the following reliefs in the writ
petition:
a) A
writ in the nature of Mandamus do issue directing the respondents and each one
of them to show cause as to why the incumbents in the post of Clerk-cum-Cash
Collector including the petitioners under the Directorate of Dairy Development,
Government of West Bengal should not be taken into account in the preparation
of common seniority List amongst the Lower Division Clerical Cadre under the
said Directorate.
b) A
writ in the nature of Mandamus do issue directing the respondents and each one
of them to act in accordance with law and to promote the Lower Division
Clerical Cadre to the Upper Division Clerical Cadre in terms of the Government
order dated 31.3.1984 being No.3868-F in terms of the common seniority list prepared
in accordance with law taking the petitioners into account.
c) A
writ in the nature of Mandamus do issue directing the respondents and each one
of them to show cause as to why the posts of Clerk-cum-Cash Collectors should
not be considered as belonging to the Lower Division Clerical Cadre under the
Directorate of Dairy Development, Government of West Bengal.
d)
Rule Nisi be made absolute if the respondents fail to show adequate cause.
e) An
order of injunction do issue restraining the respondents, particularly the
respondents nos. 2 and 3 from giving effect or any further effect to the
Government order dated 31.3.1984 being No.3868-F issued by the Assistant
Secretary, Department of Finance till a common seniority list in the Lower
Division Clerical Cadre under the Directorate of Dairy Development, Government
of West Bengal is prepared taking the posts of Clerk-cum-Cash Collector as
constituent of the said Cadre.
f)
Direction be given upon the respondents to prepare the Common seniority and/or
Gradation List in the Lower Division Clerical Cadre under the Directorate of
Dairy Development taking the posts of Clerks-cum- Cash Collectors as belong to
the said cadre and thereafter to promote the Lower Division Clerical Cadre to
the Upper Division Clerical Cadre at the ratio of 1:1 in terms of Government
order dated 31.3.1984 being No.3868-F.
g)
Ad-interim order in terms of prayers(e) and (f) above.
h)
Costs of this application be paid by the respondents." The gist of the
case of the respondents was that the writ petitioners were not members of the
Cadre of Lower Division Assistants; that they were holding ex-cadre posts;
that
the duties and responsibilities discharged by the writ petitioners were not
similar to those performed by Lower Division Assistants, and therefore, they
were not entitled to the benefits of promotion and consequential financial
benefits as envisaged in the Government order No.3868-F dated 31.3.1984.
A
learned single Judge of the High Court by the judgment dated 15th May, 1986
disposed of the writ petition holding, inter alia, that : "Channel of
promotion, method of recruitment, and the nature of duties and mode of creation
of the Clerk-cum-Cash Collectors being different from Lower Division Clerks,
the ratio of 1:1 in the matters of promotion could not be conferred upon the
Clerk-cum-Cash Collectors." In the writ appeal filed by the writ
petitioners assailing the judgment of the single Judge, a Division Bench of the
High Court by judgment rendered on 29.2.1988 set aside the judgment and ordered
that the petitioners should be given the benefits due in terms of the order
being order No.3868-F dated 31.3.1984. The operative portion of the judgment
runs as follows:
"Thus
on the basis of the ratio of the judgments of the Supreme Court or the observations
as made, we are inclined to hold that in this case, the said petitioners have
been deprived of the protection of equal pay for equal work and that has caused
a grave failure of justice by the State Government and that too, in not
following the ratio of 1:1 as indicated above. We hold further that in the case
of the said petitioners, the Finance Department Memo No.3868-F dated 31st
March, 1984 should have been applied in its entirety and not in part, as has
been done in this case and the said petitioners, as its appeared, are not
getting the necessary benefits under the same, since they have not been
designated or declared and considered as clerks. In fact, the said Memo was
intended to give or provide for more benefits to the said petitioners. Really
the said petitioners have been denied of the due and necessary benefits under
the said memo, since they have been shown or mentioned to be holding ex-cadre
posts.
Such
being the position, we feel that this appeal should be allowed and accordingly,
we allow the same, set aside the judgment and order of the learned trial Judge
and keep it on record further that the said petitioners should now be given the
due benefits in terms of the order being order No.3868-F dated 31st March, 1984
and on giving such effect, they be paid their due and necessary emoluments in
accordance with law. We also hold and observe that the Rule of Automatic
promotion as indicated hereinbefore, should also be adhered to and followed in
appropriate cases." The respondents in the appeal challenged the judgment
of the Division Bench by filing a Special Leave Petition (being SLP No. 14123
of 1988) in this Court which was dismissed by the order passed on 24.4.1989.
The review petition filed against the said order was also dismissed.
Thereafter
the State Government issued the order being G.O.No.264-MK/3M-56/84-I dated
31.1.1991 extending the benefit of G.O.No.3868-F dated 31.3.1984 to the
Clerk-cum-Cash Collectors in the Directorate of Dairy Development. The said
Government order was implemented and the Respondents and some other
Clerk-cum-Cash Collectors in the Directorate were given promotion to the higher
post like Senior Clerk-cum-Cash Collectors, Supervisors, etc. Not satisfied
with the Government Order issued in January 1991 and the consequential benefits
of promotion given to them by implementing the said order the writ petitioners
filed an application under Article 215 of the Constitution of India alleging,
inter alia that the respondents in the writ petition have failed to comply with
the judgment/order of the High Court in its entirety and in its letter and
spirit. The petitioners made the following prayers in the petition :
"a)
Rule NISI do issue calling upon the respondents to show cause as to why they
should not be committed to prison or to suitably be dealt with for committing
the acts of contempt as enumerated in paragraph 7 in the foregoing petition;
b) If
the respondents fail to show adequate cause the Rule NISI be made absolute;
c)
Order be passed directing the respondents and each one of them to act in terms
of the order passed by this Hon'ble Court on 29th February, 1988 in Appeal from
Original order being No.561 of 1987 and to prepare a common gradation list of
Lower Division Clerical Cadre taking into account the post of Clerk-cum-Cash
Collector and to give due benefits to the petitioners in terms of the order
being order No.3868 F dated 31st March 1984.
d)
Ad-interim order in terms of prayers (b);
e)
Costs." Considering the application filed by the writ petitioners the
Division Bench of the High Court passed the judgment/order dated 11.11.1992,
the operative portion of which reads as follows:
"From
the facts and circumstances, we hold that respondents contemners have not
complied with the order dated 29.2.88 effectively and in appropriate manner but
there is some doubts whether the disobedience to the Judgment or neglect to
comply with the Judgment or order was willful or not and accordingly the
respondent/contemners are entitled to benefit of doubt and hence, we do not
propose to inflict any punishment to the respondent/contemners. At the same
time we cannot be unmindful to the trend of contumacious act of the respondents
for which petitioners had suffered immensely and have been suffering till now.
In order to mitigate the situation, without inflicting any punishment, we
direct respondents/contemners to introduce a common gradation list of Lower
Division Clerical cadres so that Cashier-cum-Cash Collector gets promotion by
virtue of their seniority and consequential pay protection with that of Lower
Division Clerk.
We
believe that by adopting such steps, it will be complete and effective
compliance of the order passed by this court on 29th February, 1988. Such effect should be given within 31st December, 1992 and respondents shall release
consequential benefits including arrears, if any by 31st March, 1993. After computation, if any arrear is payable to the
petitioners, they will be entitled to interest @ 12%p.a. which shall be
computed from the date of expiry of two months from the date of the order i.e.
dated 29.2.88.
Considering
the facts and circumstances, we direct the respondents/contemners nos.1, 3, 4
and 5 to pay Rs.2,000/- to each of the petitioners individually towards cost of
litigation." Shri T.C.Ray, learned senior counsel appearing for the
appellants, raised the contention that the High Court was in error in issuing
the directions in the impugned judgment/ order in exercise of its contempt
jurisdiction inasmuch as the judgment of the Division Bench, non-compliance of
which was alleged by the writ petitioners, did not contain any specific order
or direction for treating the ex-cadre posts of Clerk-cum-Cash Collector as
posts in the cadre of Lower Division Clerk/Assistant and for preparation of a
combined seniority list including the holders (writ petitioners and others)of
such ex-cadre post, in the cadre of Lower Division Clerk/Assistants. It was the
further submission of the learned counsel that not only the ordering portion of
the judgment but also in the entire judgment the question of common gradation
list has neither been discussed nor any finding recorded. In the absence of any
adjudication on the question and any order or direction to that effect in the
judgment the appellants could not have been held to have acted in a
contumacious manner in not treating the writ petitioners as members of the
cadre of Lower Division Assistant and in not preparing a common gradation list.
Shri Gobind
Das, learned senior counsel appearing on behalf of the respondents supporting
the judgment/order under challenge strenuously contended that preparation of a
common seniority list was specifically prayed for in the writ petition and when
the Division Bench allowed the appeal and granted the reliefs sought by the
writ petitioners it followed as a necessary consequence that the respondents in
the writ petition were mandated to treat the writ petitioners and other
Clerk-cum-Cash Collectors as part of the cadre of Lower Division Assistants and
give them promotional benefits of 1:1 ratio and other consequential financial
benefits.
The
purpose of contempt jurisdiction is to uphold the majesty and dignity of the
courts of law. Since the respect and authority commanded by the courts of law
are the greatest guarantee to an ordinary citizen and the democratic fabric of
society will suffer if respect for the juidiciary is undermined. The Contempt
of Courts Act, 1971 has been introduced under the statute for the purpose of
securing the feeling of confidence of the people in general for true and proper
administration of justice in the country. The power to punish for contempt of
courts is a special power vested under the Constitution in the courts of record
and also under the statute. The power is special and needs to be exercised with
care and caution. It should be used sparingly by the courts on being satisfied
regarding the true effect of contemptuous conduct. It is to be kept in mind
that the court exercising the jurisdiction to punish for contempt does not
function as an original or appellate court for determination of the disputes
between the parties. The contempt jurisdiction should be confined to the
question whether there has been any deliberate disobedience of the order of the
court and if the conduct of the party who is alleged to have committed such
disobedience is contumacious. The court exercising contempt jurisdiction is not
entitled to enter into questions which have not been dealt with and decided in
the judgment or order, violation of which is alleged by the applicant. The
court has to consider the direction issued in the judgment or order and not to
consider the question as to what the judgment or order should have contained.
At the cost of repetition be it stated here that the court exercising contempt
jurisdiction is primarily concerned with the question of contumacious conduct
of the party, which 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 leveled 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.
Judging
the case in hand on the touchstone of the principles noted above, we find that
the directions issued by the Division Bench in the impugned judgment in effect
granted substantive reliefs not covered by the judgment/order passed in the
original proceeding. In the judgment no direction was issued by the High Court
that the writ petitioners will be admitted to the cadre of Upper Division
Clerks/Assistants in the Directorate. As noted earlier, they have all along
been holding the posts of Clerk- cum-Cash Collector which are ex-cadre posts.
Entry of such persons into the cadre of Upper Division Clerk/Assistants has to
be considered taking into account various aspects of the matter. It is one
thing to say that the benefits under the Government Order may be extended to
the writ petitioners also and extending benefits of the Government Order to the
writ petitioners is one thing and directing their entry into the existing cadre
of Office Assistants is a different thing. Such a dispute can only be
determined on consideration of all relevant aspects of the matter and cannot be
and should not be ordered in the summary proceeding for taking action for
contempt of court. If the High Court felt that the grievance of the writ
petitioners relating to the question of their entry into the cadre of Upper
Division Clerks/ Assistants has not been dealt with by the court and specific
direction has not been issued while disposing of the writ petitions/appeals
then the appropriate course was to leave it to the parties (writ petitioners)
to agitate the matter before the competent forum.
Further
the question of entry of holders of ex-cadre posts, like the writ petitioners,
into an existing cadre is a matter of policy which the Government has to
decide. Be it noted here that on consideration of the matter the High Court
held that no action for contempt of court need be taken against the respondents
in the writ petition for deliberate disobedience of the judgment or order
passed by the High Court. Thereafter it was not open to the court to pass any
order granting substantive relief to the applicants (writ petitioners) on the
plea that the question raised was also a part of their grievance in the writ
petition.
In the
facts and circumstances of the case, we are constrained to hold that the
judgment/order passed by the High Court was without jurisdiction. In the
result, the appeals are allowed. The judgment/order under challenge is set
aside. The petition filed by the writ petitioners for taking action for
contempt of court against the respondents is dismissed.
Back
