Arati Dasgupta vs Alok Kumar Basu

Amitava Lala, J.—The service and retiral benefits of the petitioner who initially moved a writ petition and obtained an order on 20.1.92 in Civil Order No. 13320(W) of 1986, was subsequently reaffirmed in a subsequent writ petition under an order dated 27.6.95 in CO. 10091 (W) of 1994. Both the writ petitions were disposed of by such final orders. In the first order in CO. 13320(W)/86, the respondents were directed to proceed against the petitioner in accordance with law. The petitioner was also directed to be heard and shall be allowed to adduce evidence, thereafter reasoned order shall be passed. The service of the petitioner be not treated as terminated nor shall be treated that she is no longer in service, as referred to paragraph 12 of the affidavit-in-opposition filed therein without any opportunity of hearing. The petitioner shall be paid the service benefits if the same is otherwise admissible within a period of three months from date. Since no step was taken by the authority concerned, the petitioner retired from service by the passage of time, i.e. on 15.3.91. She is entitled to get service benefits as well as retiral benefits including all arrear salaries. The learned counsel appeared on behalf of the State-respondents and submitted that the State has no objection if the relief, as prayed for by the petitioner, is granted to her. Having heard the learned counsel for the petitioner that the termination of service of the petitioner was set aside by the erstwhile writ court, why not the petitioner will be considered as continuing her service till the date of her retirement and will be entitled to get all service benefits, the learned counsel for the State-respondents contended before this court that the Dist. Inspector of Schools (PE) Darjeeling, has already forwarded her case to the Director of SchooF Education, West Bengal, for necessary orders. It was further submitted on behalf of the State-respondents that there is no objection on behalf of the State-respondents in respect of relief sought for by the writ petitioner in this application. The writ petition was accordingly disposed of with a direction upon the Director of Primary School Education, West Bengal, for settling the retiral benefits and arrear salaries of the petitioner within two months from the date of communication of this order after giving the petitioner an opportunity of being heard.

Consequent upon the order passed by this court, the concerned Dist. Inspector of Schools called upon the Director of School Education to release the appropriate fund for the purpose of payment of arrear salaries to the petitioner. After making several representations the concerned Director of School Education. West Bengal, under Memo No. 100-Law (Pry) dated 16.1.97 held that she is to be treated in service as per the order of the Hon''ble Court but her pay be notionally fixed upto 31.3.1991 and the retiral benefits as admissible under the rules be paid to her immeidately. Being aggrieved by and dis-satisfled with such office Memorandum a contempt application was made before this court when a rule was issued by the appropriate Bench of this court. Even after the issuance of Rule the alleged contemner had personally been present in court and asked for dispensation of his further appearance and he assured that he would take necessary steps for compliance of the court order.

Since the learned Judge who had taken the matter had retired, the matter was directed to appear in the list as per the determination as fixed. At the time of hearing of the contempt application, the learned counsels for the parties wanted to file their affidavits, supplementary affidavit and also rejoinder in connection thereto.

The learned counsel appearing on behalf of the petitioner contended before this court that this is a clear case of violation of the order passed by this court because of the reason that the alleged contemner has flouted the order of the court and has intentionally disobeyed the order by not carrying out the same. It is further contened by the learned counsel for the petitioner that the petitioner is entitled to get service benefit as per the order of the court, which may be retiral benefit or arrear salaries and there is no embargo under the order that arrear salaries should be withheld for any reason whatsoever.

The learned counsel appearing on behalf of the petitioner citing a Division Bench judgment in the case of Sweta Chandra vs. Abu Taher Ali, reported in 2000(2) CHN 98, contended that when the positive order is passed by the court it is not given to the respondent to sit over the matter and say that the order is to be complied with or not as it is not in accordance with law. He also relied upon a judgment in the case of Bomkesh Chandra Jana & Ors. vs. State of West Bengal & Ors., reported in 2001(1) CHN 347 , where the court considered the issue on different aspects. The learned counsel appearing on behalf of the petitioner has also made his argument by showing a distinguishing feature in the case of J. Parihar Vs. Ganpat Duggar and others, ,'' wherein the Supreme Court held that once there is an order passed by the Government on the basis of the direction reissued by the court, there arises a fresh cause of action to seek redressal in an appropriate forum. However, that cannot be considered to be the wilful violation of the order. According to him. the order as passed by the department is not in conformity with the order originally passed. Therefore, the contempt lies because the contemnor cannot sit over the appeal or the order by saying that the notional benefit will be given as the actual import of the original order of the court is otherwise.

The learned counsel for the petitioner has also cited a judgment in the case of Workman of M/s Birla Textiles Vs. Shri K.K. Birla and Others, . wherein a contempt petition was taken out for the purpose of similar disobedience as against the incharge of the Management of the industry in violation of the directions issued by the court and allowed all workmen to rejoin at factory and get back wages, shifting etc. Therefore, directions were given on assumptions that the factory was fully functional. The factory, however, was not functioning on date workmen reported. Accordingly order was modified and agreement reached that workers will be provided job immediately.

Upon coming back to the factual position and upon verifying the pros and cons I am of the view that I have to come to a definite conclusion by adjudging the matter in five different counts :

(a) Whether there is a wilful dis-obedience of the order of the court or not;

(b) Whether there is a clever play or not;

(c) Whether the order is casual, accidental, bona fide or unintentional acts;

(d) Whether there is any genuine inability or not; and

(e) Whether the same is not strictly in compliance of the order or not

Upon reading the orders it appears that no objection has been recorded on the part of the State-respondents specifically that *it was further submitted on behalf of the State-respondents that there is no objection on the part of the State in respect of reliefs, as sought for by the petitioner in this application." I have come to a definite conclusion that the reliefs, as prayed for. are the retiral benefits and the arrear salaries. The court has clearly observed that there is no reason as to why her retirement benefits as well as her arrear salaries should be withheld. No appeal was preferred against such order. No review application has been made as regards the same.

The contention of the learned counsel for the alleged contemner is that some sort of discretion was left by court for the authority for the purpose of settling the retiral benefits and arrear salaries of the petitioner. Therefore, it is the responsibility of the authority to come to a definite conclusion as regards the settlement of such benefits. It has been settled and it cannot be said unsettled to hold that it is a clever play on the part of the authority concerned. It is not the case of the petitioner that the reliefs are not granted but the reliefs are granted as recorded under the order "if the same is admissible" and "according to law". Therefore, I cannot hold that the alleged contemner has violated the order of the court when such discretion is left by the authority concerned to settle the retiral benefits and arrear salaries upon giving an opportunity of being heard.

After hearing the authority concerned, the school authority has placed'' the Attendance Register from which it appears that she has not worked for the relevant period. Both the orders were passed when she has already retired but it is categorically mentioned either in the earlier order or in the subsequent order that the petitioner would be paid the service benefits if the same is otherwise admissible. Therefore, the discretion is open for the authority to hold that whether she will be treated in service with or without financial benefits. If she has rendered service it will reflect from the record. The authority concerned came to a conclusion on verifying the records. It cannot be construed as clever ploy on the part of the authority. Whether the petitioner''s service will be governed by the principle ''no work no pay or the other principle that the petitioner was prevented from rendering her service till retirement is a question of interpretation of law when contempt is not the appropriate proceeding. In J. Parihar Vs. Ganpat Duggar and others, three Judges'' Bench of Supreme Court held that once there is an order passed by the Government on the basis of the directions issued by the court there arises a fresh cause of action to seek redressal in an appropriate forum which may be wrong or may be right or may be in conformity with the directions.

Under the circumstances, I grant liberty to the petitioner to make a writ petition afresh as regards the grievance before the writ court in the guideline of the judgement clarifying the position as to why she will not be given actual benefit when the with petitioner was prevented from joining the school till retirement and not avoided the primarily responsibility of her duties so that the principle of ''no work no pay'' can be applicable. With the above observations, the contempt application stands dismissed. The contempt Rule is, accordingly, discharged. Personal presence, if any, is permanently dispensed with. There will be no order as to costs.