Full Judgment Text
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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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