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CASE NO.:

Contempt Petition (civil) 260-261 of 2001

Appeal (civil) 2906-2907 of 2001

PETITIONER:

ANIL RATAN SARKAR & ORS.

Vs.

RESPONDENT:

HIRAK GHOSH & ORS.

DATE OF JUDGMENT: 08/03/2002

BENCH:

U.C. Banerjee & Y.K. Sabharwal

JUDGMENT:

Banerjee, J.

The most accepted methodology of governmental working

ought always to be fairness and in the event of its absence, law

Courts would be within its jurisdiction to deal with the matter

appropriately. This proposition is so well settled that we need not

dilate further on to this. It is this concept of fairness which

Mr.Ganguli, appearing in support of the Petition for contempt very

strongly contended, is totally absent in spite of three final rounds of

litigation upto this Court between the parties. Mr. Bhaskar Gupta,

learned senior advocate appearing for the alleged contemnors,

however, contended that the conduct of the respondents can neither

be termed to be unfair or in disregard to the orders of the Court on a

true reading of the order this stand of the respondents, however,

stands negated by Mr.Ganguli. The conduct, Mr.Ganguli,

contended, is not only deliberate but utterly perverse and in grossest

violation of the orders of this Court and by reason therefor the fruit

of the litigation has not yet been made available and being decried

to the petitioner for one reason or the other for the last about 15

years. Incidentally, it would be convenient to note that the principal

issue involved in the matter pertains to the entitlement of the

petitioners to the scale equivalent to that of Physical Instructors in

the scale of Rs.700-1600 as on 2nd July, 1984 and Rs.2200-4000

w.e.f. 1986.

Turning, however, on to the factual score, it appears that the

petitioners are Science Graduates of different universities in the

country and have been appointed as Laboratory Assistants in

colleges and in addition to their normal duties, the petitioners were

supposed to assist the teachers and help the students in practical

classes, impart instructions to the students in practical classes and

to perform demonstration work including preparation of the lesson

units in the practical classes. According to the petitioners these

Laboratory Assistants were all along being treated as teaching staff

and pay and allowances including the Government share of

Dearness Allowances were paid to them until the issuance of the

Government Order No.288 Education (CS) dated 21st March,

1969 wherein Laboratory Assistants of non-government affiliated

colleges were treated as members of the non-teaching staff. The

effect of such re-designation had a direct impact as regards the

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payment of Dearness Allowances and obviously the same being

prejudicial to the interest of the petitioners, representations

followed against the Government Order, but, however, to no effect.

Representations were also made by reason of the withdrawal of

teaching status as the Graduate Laboratory Assistants had to

discharge teaching function as well, apart from the normal conduct

of the Laboratory work.

The factual score depict that subsequently in August, 1983 the

State Government redesignated the Laboratory Assistants as

Laboratory Instructors it is on this score that Mr. Ganguli, learned

senior counsel appearing in support of the petition very strongly

criticised. The change of nomenclature according to him was

otherwise meaningless as there was neither any conferment of

status of teachers or the grant of any pay scale consistent with the

teaching status. The Government notification was attributed to be

a mischievous deception and a "hoax" a rather strong criticism :

the question, therefore, arises whether there was any justification of

such an attribute to the Government notification dated 10th August,

1983 : a short question consequently, thus what was the necessity

for issuance of such an order would the change of nomenclature

assist in any way the Graduate Laboratory Assistants? A bare

perusal of the notification does not howsoever give any reason

whatsoever as to the necessity of its issuance the notification on

the contrary makes it clear that there would be no enhancement of

pay as also the status as non-teaching staff would remain

unchanged : It is only the word "Assistant" was replaced by the

word "Instructors" but does that confer any material benefit to the

persons concerned? The answer cannot in the factual context but

be in the negative. It is on this background and upon perusal of the

notification, Mr. Ganguli's criticism seems to be rather apposite

though couched in a very strong language but by reason of the

fact situation of the matter in issue and if we may say so,

probably justifiably so.

Be it noted that Graduate Laboratory Assistants working in

government colleges have been given the status and designations of

Demonstrators and have been accepted as members of teaching

staff. According to the petitioners they possess similar

qualifications, experience etc. but even though being similarly

circumstanced, the Graduate Laboratory Assistants of sponsored

and non-government private colleges of West Bengal stand

discriminated against the Graduate Laboratory Assistants of

Government colleges in West Bengal. The earlier writ petition

which stand concluded by this court's order dated 26th July, 1994

contained detailed list of University Acts and Statutes wherein

"teachers" have been defined to "include the Instructors".

Needless to place on record that by reason of the act of

discrimination and having failed to obtain any redress from the

State-respondents the petitioners moved the learned Single Judge of

the Calcutta High Court in the earlier Writ Petition for issuance of a

writ of Mandamus to treat the Graduate Laboratory Assistants as

teaching staff as per the definition contained in different University

Act and also to give them a scale of pay equivalent to that of

Physical Instructors. By a judgment and order dated 29th July,

1987 the learned Single Judge issued a writ of Mandamus upon a

detailed judgment the operative portion whereof is set out herein

below :-

"..The Rule accordingly is made absolute and

the State Respondents are hereby commanded by

the issuance of a Writ in the nature of Mandamus

to treat the Graduate Laboratory Assistants who

have already been redesignated as "Laboratory

Instructors" as teaching staff and to pay them in

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accordance with the existing scale of pay

prescribed for the Physical Instructors with effect

from 10th August, 1983 with all arrears."

The appeal taken therefrom by the State Government

resulted in confirmation of the order by the judgment of the

Appellate Bench dated May 15, 1992. The State of West Bengal,

however, being aggrieved and dissatisfied with the judgment and

order of the Appellate Bench of the High Court moved a Special

Leave Petition under Article 136 of the Constitution before this

Court and this Court finally on 26th July, 1994 refused to interfere

with the order and disposed of the matter with a speaking order.

Relevant extracts of the same however are set out herein below :-

".. the Division Bench of the High Court upheld

the findings of the learned Single Judge.

We have heard learned counsel for the

parties. We see no ground to interfere with the

reasoning and the conclusions reached by the

learned Single Judge as upheld by the Division

Bench of the High Court. We are, however, of the

view that the respondents-petitioners be paid the

revised scale of pay, as directed by the High Court,

with effect from August 1, 1987 instead of August

10, 1983.

The arrears shall be paid to the respondents

in two installments, first by the end of February

1995 and the second installment by August 31,

1995. The appeal is dismissed with the above

modifications. No costs."

A bare perusal of the order of this Court dated 26th July, 1994

categorically depicts that apart from the change of date of

entitlement from August 10, 1983 to 1st August, 1987, this Court in

fact did in unequivocal language record its concurrence with the

reasonings and conclusions of the learned Single Judge as affirmed

by the Division Bench.

In the order dated 26th July, 1994, as passed, this Court also

was pleased to record certain statements of Mr. Ganguli which

reads as below:

"Mr. A.K. Ganguli, learned counsel appearing for

the respondents has very fairly stated that his

clients are not asking for the pay-scale of

Lecturer. According to him, the pay scale of

Physical Instructors is equivalent to that of

Demonstrators i.e. pay scale to which his clients

are entitled to in terms of the judgment of the

Hon'ble High Court."

It is however in terms of the order of this Court as noticed

herein above, the State Government on 26th December, 1994 has

issued a circular in purported compliance with the order of this

Court. Let us however examine the circular and assess the

situation ourselves as to the compliance of the earlier order of this

Court. The circular reads as below :-

"In the circumstances, the Governor is pleased to

order that the scale of pay in respect of all

Graduate Laboratory Instructors of non-

Government colleges may be revised to Rs.1390-

45-1615-55-2055-65-2445-75-2970 with effect

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from 1st August, 1987 and the arrears involved on

account of revision of their scale of pay paid in

the manner as indicated above.

The Governor is further pleased to order that

the Graduate Laboratory Instructors of Non-

Government Colleges shall continue to enjoy

teaching status as given to them in GO No.1039-

Edn. CS dated 27.7.1988."

The circular, however, not been able to put an end to the

petitioners' grievance by reason wherefor, the same was further

challenged by way of a writ petition under Article 226 before the

learned Single Judge who, however, was pleased to quash the same

upon recording concurrence to the contentions as raised by the

petitioners. The learned Single Judge categorically recorded that

the petitioners being Graduate Laboratory Instructors, question of

further classifying them does not and cannot arise and upon reliance

of the annual report as noticed above quashed and set aside the

circular. The State Government however being aggrieved went

before the Appellate Court and the Appellate Bench however

allowed the appeal and opined that the Government Order dated

26th December, 1994 cannot be said to be arbitrary or contrary to

the decision of this Court.

The further factual score depicts that as against the decision of

the Hon'ble High Court pertaining to the Government order dated

26th December, 1994, the petitioners herein moved this Court under

Article 136 and this Court upon a detailed judgment dealt with the

issue and came to a conclusion to the following effect :

"This Court at an earlier occasion

unequivocally upheld the reasonings of the

learned Single Judge in the earlier writ petition as

accepted by the Appellate Bench and on the wake

of such a finding of this Court question of

decrying a pay scale which is otherwise available

to another teacher (in this case the Physical

Instructor) does not and cannot arise more so by

reason of the earlier order of this Court.

Administrative ipse dixit cannot infiltrate on to an

arena which stands covered by judicial orders."

It is on the basis of the aforesaid, the appeals were allowed

and the order of the Appellate Bench of the High Court of Calcutta

stood set aside and quashed and that of the learned Single Judge

stood restored. This Court, however, further directed that the

entitlement by reason of the revision should be made available from

1st August, 1987 as directed by this Court in its earlier judgment

dated 26th July, 1994. The petitioners, however, consequent upon

the said judgment and order called upon the State officials being

the alleged contemnor No.1 to comply with the directions of this

Court and subsequently, the contemnor No.2 issued a notice

requiring the petitioners to attend the hearing before the Principal

Secretary, Department of Higher Education on 18th May, 2001.

Some correspondence exchanged between the parties whereas the

petitioners contended immediate compliance with the order of this

Court, the alleged contemnors tried to feign ignorance about the

earlier litigation and requested for supply of all copies of the

relevant documents which, as the record depicts, stand supplied

immediately thereafter. There has however been a total silence

thereafter and the petitioners felt it incumbent upon themselves to

bring it to the notice of this Court by way of a petition under the

Contempt of Courts Act.

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Before proceeding with the matter further, certain basic

statutory features ought to be noticed at this juncture. The

Contempt of Courts Act, 1971 has been introduced in the Statute

Book for the purposes of securing a feeling of confidence of the

people in general and for due and proper administration of justice in

the country undoubtedly a powerful weapon in the hands of the

law Courts but that by itself operates as a string of caution and

unless thus otherwise satisfied beyond doubt, it would neither be

fair nor reasonable for the law courts to exercise jurisdiction under

the Statute. The observation as above finds support from a

decision of this Court in Chhotu Ram v. Urvashi Gulati & Anr.

(2001 (7) SCC 530), wherein one of us (Banerjee, J.) stated as

below :-

"As regards the burden and standard of

proof, the common legal phraseology "he who

asserts must prove" has its due application in the

matter of proof of the allegations said to be

constituting the act of contempt. As regards the

"standard of proof", be it noted that a proceeding

under the extraordinary jurisdiction of the court in

terms of the provisions of the Contempt of Courts

Act is quasi-criminal, and as such, the standard of

proof required is that of a criminal proceeding and

the breach shall have to be established beyond all

reasonable doubt."

Similar is the situation in Mrityunjoy Das & Anr. v. Sayed

Hasibur Rahaman & Ors. (2001 (3) SCC 739) and as such we need

not dilate thereon further as to the burden and standard of proof vis-

a-vis the Contempt of Courts Act - Suffice it to record that powers

under the Act should be exercised with utmost care and caution

and that too rather sparingly and in the larger interest of the society

and for proper administration of the justice delivery system in the

country. Exercise of power within the meaning of the Act of 1971

shall thus be a rarity and that too in a matter on which there exists

no doubt as regards the initiation of the action being bona fide.

It may also be noticed at this juncture that mere disobedience

of an order may not be sufficient to amount to a "civil contempt"

within the meaning of Section 2(b) of the Act of 1971 the element

of willingness is an indispensable requirement to bring home the

charge within the meaning of the Act and lastly, in the event two

interpretations are possible and the action of the alleged contemnor

pertains to one such interpretation the act or acts cannot be

ascribed to be otherwise contumacious in nature. A doubt in the

matter as regards the wilful nature of the conduct if raised, question

of success in a contempt petition would not arise.

It is on these broad features however let us analyse the action

of the respondents for the purposes of ascribing it to be willful and

contumacious : whereas Mr. Ganguli answered by reference to the

contextual facts as a deliberate and willful act, both Mr. Altaf

Ahmad, the learned Additional Solicitor General and Mr. Bhaskar

Gupta, learned senior advocate appearing for the alleged

contemnors, rather strongly ventilated their negation to the

accusations of Mr. Ganguli.

It is at this stage that the earlier order passed by this Court

may be of some relevance and the same reads as below:

"A teacher cannot possibly be allowed a pay

scale of a non-teaching post. The same is a

contradiction in terms and we need not dilate

thereon. The criterion of fixation of pay scale is

dependent upon the placement of the person

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concerned in the event the placement is in a

teaching post obviously one expects to get a pay

scale fixed for a teacher and not for a non-

teaching member of the staff. Apparently the

High Court has not dealt with the issue in this

perspective and thus clearly fell into an error in

categorising a teacher with a non-teaching pay

scale. The circular clearly authorises the

Graduate Laboratory Instructors of non-

government colleges to continue to have the

teaching status but decries the financial benefits

therefor! Would the same be not an arbitrary

exercise of powers or can it by any stretch be

suggested to be otherwise rational and

indiscriminatory. This Court at an earlier

occasion unequivocally upheld the reasoning of

the learned Single Judge in the earlier writ

petition as accepted by the Appellate Bench and

in the wake of such a finding of this Court

question of decrying a pay scale which is

otherwise available to another teacher (in this case

the Physical Instructor) does not and cannot arise

more so by reason of the earlier order of this

Court."

Significantly, the Secretary, Department of Finance,

Government of West Bengal, has with meticulous care recorded the

statements as in the earlier affidavit filed before this Court though,

however, with a preface that the statements in the counter affidavit

stand out to be the outcome of his understanding of the order of this

Court dated 20th April, 2001 and it is on the basis of the said

understanding, the proposal for grant of scale of pay of Rs.1420 to

Rs. 3130 stands concurred by him. Obviously, the notification

dated 2nd July, 1984 issued by the Government of West Bengal as

regards the revision of scale of pay of the Physical Instructors was

also the resultant effect of such an understanding. It is in this

context, the Finance Secretary of the State Government has stated

as below :-

"Subsequently by a Notification dated 2nd

July, 1984 issued by the Government of West

Bengal, the State Government on the

recommendation of the University Grants

Commission and Government of India revised the

scale of pay of the Physical Instructors to Rs.700/-

- Rs.1600/- which was equal to the scale of pay of

the lecturer. At that point of time also the scale

of pay of Demonstrators continued to be Rs.500/-

to Rs.900/-."

In the earlier judgment, this Court while noting down certain

record of proceedings observed as below :-

"On this score, a chart has been produced in

the Court on 20.3.2001 which however cannot by

any stretch be said to be in support of the

contentions of the State that there were existing

two different grades and scales of pay amongst

Physical Instructors, one being qualified Physical

Instructors and the other being unqualified

Physical Instructors.

Significantly the annual report as published

by the Education Department of the State

Government unmistakably records the existence

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of one grade of Physical Instructors under para

8.16. The annual report details out teachers of

government colleges in the manner as below:

"8.16. Teachers of government colleges

Sl. Category of teachers Pay Scale

No. (Basic) w.e.f.1.1.1986

5. Demonstrator Rs.1740-3000

4. Physical Instructor Rs.2200-4000

3. Lecturer Rs.2200-4000

2. Professor/Vice-Principal Rs.3700-5700

(Grade II)

1. Principal Rs.4500-7300"

Para 8.2.1 also records the details of the

administration of non-government colleges as below:

The teachers of non-government colleges

are of the following categories (basic):

1. Laboratory Instructors Rs.1390-2970

2. Demonstrators

3. Physical Instructor as in government

4. Lecturer colleges.

5. Principal

This itself however negates the contentions

as raised by the State. Laboratory Instructors in

non-government colleges are termed as teachers

with scale of pay Rs.1390-2970 whereas Physical

Instructors were also termed as teachers and scale

of pay appears to be similar "as in government

colleges" i.e. Rs.2200-4000. Secondly, in para

8.2.4 revised pay scale of the non-teaching posts

(Group B pay scale) has been noted to be

Rs.1390-2970. It thus leaves no manner of doubt

that whereas the petitioners were shown as

teachers of non-government colleges they were in

fact granted the scale of pay applicable only to

Group B employees belonging to non-teaching

staff and thus granted a non-teaching scale."

Similar is the situation in the counter-affidavit filed presently

in this matter as well : Is this fair ? The answer having regard to

the factual backdrop cannot but be in the negative. It is neither fair

nor reasonable on the part of a senior Civil Service Personnel to

feign ignorance or plead understanding when the direction of this

Court stands crystal clear in the judgment. Government employees

ought to be treated at par with another set of employees and this

Court on an earlier occasion lent concurrence to the view of the

learned Single Judge that the Circulars issued by the State

Government cannot but be ascribed to be arbitrary : Government is

not a machinery for oppression and ours being a welfare State as a

matter of fact be opposed thereto. It is the people's welfare that the

State is primarily concerned with and avoidance of compliance with

a specific order of the Court cannot be termed to be a proper

working of a State body in terms of the wishes and aspirations of

the founding fathers of our Constitution. Classless, non-

discriminate and egalitarian society are not meaningless jargons

so that they only remain as the basic factors of our socialistic state

on principles only and not to have any application in the realities of

every-day life : one section of the employees would stand benefited

but a similarly placed employee would not be so favoured why

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this attitude ? Obviously there is no answer. Surprisingly, this

attitude persists even after six rounds of litigation travelling from

Calcutta to Delhi more than once the answer as appears in the

counter-affidavit is an expression of sorrow by reason of the

understanding cannot be countenanced in the facts presently under

consideration. A plain reading of the order negates the

understanding of the State Respondents and the conduct in no

uncertain terms be ascribed to be the manifestation of an intent to

deprive one section of the employees being equally circumstanced

come what may and this state of mind is clearly expressed in the

counter-affidavit though however in temperate language. The

question of bona fide understanding thus does not and cannot arise

in the facts presently. Is it a believable state of affairs that the order

of the learned Single Judge as early as the first writ petition, has not

been properly understood by the senior most bureaucrat of the State

Government : the same misunderstanding continues in terms of the

appellate Court's order and the third in the line of order is that of

the apex Court. The understanding again continues even after the

second writ petition was filed before the learned Single Judge at the

High Court and the similar understanding continues even after the

so to say clarificatory order by this Court, as appears from the order

dated 20th April, 2001. Even in the counter-affidavit, filed in

Contempt Petition, the understanding still continues we are at a

loss as to what is this understanding about : the defence of

'understanding' undoubtedly is an ingenious effort to avoid the

rigours of an order of Court but cannot obliterate the action the

attempted avoidance through the introduction of the so-called

concept of lack of understanding cannot, however, be a permanent

avoidance, though there may be temporary and short-lived gains.

The order of this Court cannot possibly be interpreted as per the

understanding of the Respondents, but as appears from the plain

language used therein. Neither the order is capable of two several

interpretations nor there is any ambiguity and the same does not

require further clarity. The order is categorical and clear in its

context and meaning. The Court's orders are to be observed in its

observance, rather than in its breach.

This matter is pending in Courts since more than last 15 years,

but unfortunately the litigatious spirit of the State-respondent have

not minimised even to the slightest extent - the spirit continues and

so is the deprivation. The defence of understanding is not only

moonshine but a deliberate attempt to over-reach this Court's order

and as such willfulness in the matter of disregard of this Court's

order is apparent on the face of it and we are not prepared to accept

the same as a defence of an action for deliberate and willful

disregard of an order of Court. We find that the actions on the part

of the respondent-authorities are not only unreasonable but

deliberate and spiteful and that too in spite of a specific direction in

all the five judgments so far obtained by the petitioners in their

favour. Avoidance is written large and it would be difficult for us

to consume the same without any particular rhyme or reason.

In the contextual facts there cannot be any laxity as otherwise

the Law Courts would render itself useless and its order to utter

mockery. Feeling of confidence and proper administration of

justice cannot but the hall-mark of Indian Jurisprudence and contra

action by Courts will lose its efficacy. Tolerance of Law Courts

there is, but not without limits and only upto a certain point and not

beyond the same.

On the wake of the aforesaid, we do find that the respondents

have willfully and deliberately violated the orders of this Court in

the guise of a totally non-acceptable and sham defence of

understanding and thus rendered themselves punishable under the

provisions of Article 142 of the Constitution and also under the Act

of 1971.

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Be it placed on record that by the order dated 1st February,

2002, this Court directed the presence of all the alleged contemnors

on the next date, i.e. on 8th March, 2002 since the order was to be

pronounced in the presence of the respondents. The Office-Report,

however, depicts that one of the respondents has filed an

application for exemption from appearance. We do feel it expedient

to allow the application for exemption, though by reason therefor

the consequence of the findings as above cannot be pronounced as

of date. In that view of the matter, let this matter appear two weeks

hence in the list (22nd March, 2002) for further orders. The

respondents are directed to be present in Court on the next date of

hearing. No further notice need be served to the respondents

excepting the applicant in I.A. No2 of 2002.

..J.

(Umesh C. Banerjee)

..J.

(Y.K. Sabharwal)

March 8, 2002.

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