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CASE NO.:

Appeal (crl.) 170 of 1996

Appeal (crl.) 171 of 1996

PETITIONER:

JHARESWAR PRASAD PAUL& ANR

Vs.

RESPONDENT:

TARAK NATH GANGULY & ORS.

DATE OF JUDGMENT: 08/05/2002

BENCH:

D.P.Mohapatra & K.G.Balakrishna

JUDGMENT:

D.P.MOHAPATRA,J.

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

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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."

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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

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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

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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.

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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

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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.