ANIL RATAN SARKAR AND ORS. v. HIRAK GHOSH AND ORS

Citation: [2002] 2 S.C.R. 346

Court: Supreme Court of India

Bench: U.C. BANERJEE, Y.K. SABHARWAL

Judgment text

ANIL RATAN SARKAR AND ORS. >-v. HIRAK GHQSH AND ORS. MARCH 8, 2002. [UMESH C. BANERJEE AND Y. K. SABHARWAL, JJ. ] Contempt of Courts Act, Jf! 71: Section 2(b)-Power under the Act- Exercise of-It should be exercised sparingly and in the larger interest of . ,, Society with utmost care and caution-Wiful dis-obedience of order would amount to contempt. Civil Service Personnel-Liability to comply with the order ofthe Court- It is not desirable to feign ignorance when the directions ofthe Court stands crystal clear in the Judgment-Hence Respondents guilty of contempt. Petitioners were appointed as Laboratory Assistants in non-govt. affiliated colleges in West Bengal. In addition to their normal duties, they have been imparting instructions to the students and performing demonstration work including preparation of the lesson units in the practical classes.

They were being treated as teaching staff and accordingly pay and allowances had been paid to them until the issuance of the State Government Order in the Year 1969, according to which they were treated as non-teaching staff. Against the said order of the Government, representations were made by the petitioners but to no effect. Subsequently in 1983, the State Government ......... redesignated the post of Laboratory Assistants as 'Laboratory Instructors' by issuing a notification wherein it was clarified that there would be no enhancement of pay and their status as non-teaching staff would remain unchanged. However, the Laboratory Assistants working in Government Colleges have been given the status and designation of Demonstrators and treated as teaching staff. Writ Petitions were filed for issuance of Writ of Mandamus to treat the -y petitioners as teaching staff as defined in the University Act and to give them scale of pay at par with Physical Instructions. Single Judge of.

the High Court allowed the writ petitions. In appeal by the State Government, Division Bench confirmed the Judgment of Single Judge. Hence State Government preferred special leave petition, and the Court by its order dated 26. 7. 1984 upheld the ANIL RATAN SARKAR v. HIRAK GHOSH 347 finding of the Single Judge with slight modification regarding effective date -\ for implementation of revised pay scale and also for payment of arrears. Subsequently, State Government in purported compliance with the order of this Court issued a Circular conferring teaching status on the Laboratory Instructors and their pay scale was also revised but not in accordance with the order of the Court. Aggrieved, petitioners challenged the circular by filing a writ petition. Single Judge allowed it and quashed the Circular. However, Division Bench upheld the Circular. On a Special Leave Petition preferred by the petitioners, this Court restored the order of the Single Judge.

But the State Government did not comply with the order inspite of repeated requests by the petitioners. Hence these contempt Petitions. It was contended for the Petitioners that fairness on the part of respondent was totally absent inspite of three final rounds of litigation upto this Court; and that the conduct of the respondents in not complying with the order of the Court was deliberate, perverse and in grossest violation of the order of this Court. Finding the Respondents guilty of Contempt, the Court. HELD: I. I. Powers under the Contempt of Courts 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 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 bonafide. [354-E-F) Chhotu Ram v. Urvashi Gulati andAnr.

, [2000] 7 SCC 530 and Mrityunjoy Das Anr. v. Sayed Hasibur Rahaman and Ors. , [2001] 3 SCC 739, relied on. 1. 2. Mere disobedience of an order may llot be sufficient to amount to a "Civil Contemptfl, the element of willingness is an indispensible requirement to bring home the charge within the meaning of the Act and when 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. (354-G-H) 2. 1. It is neither fair nor reasonable on the part of a senior Civil Service Personnel to feign ignorance or plead lack of 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 earlier occasion lent concurrence to the view of the 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 it is the people's )- _ welfare that the State is primarily concerned with. Avoidance of compliance with a specific order of the Court cannot be termed to be a proper working ofa State body in terms of the wishes and aspirations of the founding fathers of the Constitution. [357-E-F-G) 2. 2. A plain reading of the order negates the understanding of the Respondents and the conduct in no uncertain terms be ascribed to be the manifestation of an intent to deprive one seetion of the employees being equally circumstanced. [358-B] 3. 1. It is unbelievable state of affairs that the order ofthe Single Judges, as early as in the first writ petition, has not been properly understood by the senior most bureaucrat of the State Government; the same misunderstanding continues even after the clarificatory order passed by this Court [358-C) 3. 2.

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 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 ofthe Respondents, but as appears from the plain language used therein. Neither the order is capable of two 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.

And the' respondents have wilfully 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 ofArticle 142 of the Constitution and also under the Contempt ofCourts Act [358-E-F-H; 359-D) CIVIL APPELLATE JURISDICTION : Contempt Petition (C) Nos. 260-261of 2001. IN Civil-Appeal Nos. 2906-2907 of 2001. From the Judgment and Order dated 25. 6. 99 ofthe Kolkata High Court in M. A. T. No. 1368 and 1477 of 1998. Altaf Ahmad, Additional Solicitor General, A. K. Ganguli, Bhaskar P. Gupta, Pradip Chatterjee, Bikas Bhattacharya, Sr. Advs. , Rana Mukherjee, Sumita Mukherjee, S. Gautam, Jaydeep Kar, D. Bharat Kumar, Abhijit Sengupta, Tara Chandra Sharma, Ms. Neelam Sharma and Ajay Sharma for the appearing parties.

The Judgment of the Court was delivered by 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 condu~t of the respondents can neither be termed to be unfair or in disregard to the orders of the Court on a true reading ofthe 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 instructio11s 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 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 stron~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 bac~ground and upon perusal of the notification, Mr.

Ganguli - "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 ofIndia revised the scale ofpay ofthe 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 of one grade of Physical Instructors under para 8. 16. The annual report details out teachers ofgovernment colleges in the manner as below: "8. 16. Teachers of government colleges SI. Category of teachers Pay Scale No. (Basic) w. e. f. l. l. 1986 5. Demonstrator Rs. 1740-3000 4. Physical Instructor Rs. 2200-40GO 3. Lecturer Rs. 2200-4000 2. ProfessorNice-Principal Rs. 3700-5700 (Grade II) I. Principal Rs. 4500-7300" Para 8. 2. 1 also records the details of the administration of non- government colleges as below: The teachers ofnon-government colleges are ofthe following categories (basic): I. Laboratory Instructors Rs. 1390-2970 2. Demonstrators 3. Physical Instructor as in government colleges 4. Lecturer. 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 PJtrsical 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 ofemployees 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 ofour 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 . • L benefited but a similarly placed employee would not be so favoured - why 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 '1 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 leamedSingle 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, 200I. 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 ·i is an ingenious effort to avoid the rigours of an order of Court but cannot obliterate the action - the attempt~d avoidance through the introduction of the so-called concept of lack of understanding cannot, however, be a permanent avoidance, th ugh there may be temporary and short-lived gains. The order of this Court cannot possibly be interpreted as per the understanding of the _,J,.. _ L 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 Iclear 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 ofthe 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 •n 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 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. - Be it placed on record that by the order dated ! st 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 ftirther notice need be served to the respondents excepting the applicant in I. A. No. 2 of 2002. S. K. S. Petition Still Pending.