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Judgment
P. Jyothimani, J.—The contempt complained of is in respect of the order of this Court, dated 05.01.2007 passed in W.P. No. 36813 of
2006.
The Petitioners who were employed as ''Non Muster Roll'' (NMR) under the third Respondent municipality stated to have been appointed on
12.08.1993, 03.08.1993, 10.09.1993 and 09.08.1993 respectively and they have worked in the said municipality till 13.02.2002 and thereafter,
they were not given employment. Apart from that there were 10 persons including the Petitioners who were working in the third Respondent
municipality, out of them, one Gunasekaran has moved the Tamil Nadu Administrative Tribunal by filing O.A. No. 3284 of 2003 and by an order
dated 30.09.2003, the Tribunal has directed the Respondents to regularise his service as per G.O.Ms. No. 125, Municipal Administration and
Water Supply Department, dated 27.05.1999. When the said order was not implemented, he has filed W.P. No. 33364 of 2004, and by order
dated 31.03.2005, this Court directed the Respondents to comply with the order of the Tribunal. The third Respondent filed an appeal with a
petition to condone the delay of 154 days and the said petition was dismissed by the Division Bench thereby confirming the order of the Tamil
Nadu Administrative Tribunal as well as the order of the learned single Judge. The Petitioners who are similarly placed as that of the said
Gunasekaran in respect of whom, the orders were implemented, have requested to regularise their services. The third Respondent by proceedings
dated 06.03.2006 has asked for certain particulars and the Petitioners have insisted that they have been employed as NMRs as admitted by the
Municipality and therefore, they have filed the above writ petition for a direction against the third Respondent to regularise their services in terms of
G.O.Ms. No. 125, Municipal Administration and Water Supply Department, dated 27.05.1999 as permanent employees at the entry level
category and also grant them appropriate time scale of pay.
Taking note of the fact that the dates of appointment of the Petitioners as NMRs as stated in the affidavit has not been denied and taking note of
the order of the Tribunal and the subsequent order of this Court in the writ petition stated above and as per G.O.Ms. No. 125, Municipal
Administration and Water Supply Department, dated 27.05.1999, the condition required is that the Petitioners should have been worked on daily
wage basis before 01.10.1996 and when that fact in respect of the Petitioners was not disputed, this Court by an order dated 05.01.2007 has
directed the third Respondent to consider the claim of the Petitioners in terms of G.O.Ms. No. 125, Municipal Administration and Water Supply
Department, dated 27.05.1999 and in the light of the order passed by the Tribunal as confirmed in the writ petition in respect of a similarly situated
person like that of the Petitioners and to pass orders making necessary appointments, within a period of six weeks.
However, the third Respondent has passed an order dated 27.02.2007 stating that the Petitioners were working in the municipality in its various
sections as part time section writers on the part time pay scale as fixed by the District Collector and considering that this Court in the abovesaid
order has directed only to consider the claim of the Petitioners as per the said Government Order, has rejected the claim of the Petitioners on the
ground that as per G.O.Ms. No. 125, Municipal Administration and Water Supply Department, dated 27.05.1999, there is no scope for including
the Petitioners in the list of NMR. The passing of that order is construed to be a violation of the Court order and accordingly, this petition is filed. It
is also relevant to point out that as against the abovesaid order passed by this Court, the third Respondent has filed W.A. No. 830 of 2010 making
a plea that the order only directs the municipality to consider the claim of the writ Petitioners and cannot be taken as a positive order for a direction
to regularise them. The Hon''ble First Bench of this Court has dismissed the writ appeal with the following observation:
In our considered view, these are all submissions which should be placed before the learned single Judge before whom a contempt petition has
now been filed by Respondents 1 to 4. There is no reason for us to interfere with the order of the learned single Judge, with which we do not find
any error otherwise. The writ appeal is, therefore, dismissed. There shall be no order as to costs. Consequently, M.P. No. 1 of 2010 is closed.
While it is the case of the Petitioners as submitted by the learned Counsel for the Petitioners that the order passed by this Court amounts to a
positive direction to appoint the Petitioners since it is not in dispute that the Petitioners were employed as NMRs between 12.08.1993 to
01.06.2002 and therefore, the letter of the third Respondent in rejecting the claim amounts to disobedience of the order especially when the
Hon''ble First Bench of this Court has dismissed the writ appeal.
On the other hand, it is the stand of the third Respondent as stated in the counter affidavit that the Petitioners were not at all engaged in the
municipality as on the crucial date namely, 1.10.1996 and therefore, they were not eligible for the benefit under G.O.Ms. No. 125, Municipal
Administration and Water Supply Department, dated 27.05.1999. It is also stated that the Petitioners have stated in the affidavit about their age as
35 years and if that is taken in 1993, they would have been 17 years and others are less than that and therefore, it is stated that the claim of the
Petitioners as if they were engaged as NMRs is false. It is also stated that in respect of Gunasekaran who stands in the different footing since his
name was found in the list of NMRs prepared in the first instance on receipt of the Government Order whereas the names of the Petitioners are not
found in any one of the NMR list of municipality. It is also stated that originally in the letter dated 25.01.2005 only five names were set out as it is
seen in the original letter sent to the Regional Director of Municipal Administration and to the Director of Municipal Administration and it is not
known as to how this has been increased to 10 including the Petitioners'' name.
It is also stated that the contempt petition is barred by limitation and the Petitioners having waited for three years have come to this Court. In the
additional counter affidavit filed by the third Respondent while tendering unconditional apology without reservation the third Respondent has
reiterated whatever she has stated in the original counter affidavit insisting that the Petitioners have never worked as on the crucial date namely,
01.10.1996 as per G.O.Ms. No. 125, Municipal Administration and Water Supply Department, dated 27.05.1999 and therefore, the claim of the
Petitioners was rejected in the order dated 27.02.2007. Inasmuch as the Petitioners have not chosen to challenge the said order, the same has
become final. It is also stated that by letter dated 05.04.2007 issued by Mr. T. Suyambukesan, Joint Secretary to Government, Municipal
Administration & Water Supply Department addressed to the Commissioner of Municipal Administration stating that the Petitioners have satisfied
the conditions of G.O.Ms. No. 125, Municipal Administration and Water Supply Department, dated 27.05.1999, is not true and genuine. It is
stated that on verification from the Secretariat, it was found that the person who has written the said letter was transferred from the department on
04.07.2006 itself and another person by name Mr. J. Rajamohan had joined the said post on 04.07.2006. It is also stated that the letter, dated
07.11.2007, referred in the abovesaid letter, dated 05.04.2007, was not even connected with the concerned section and therefore, it is a
fraudulent document.
Mr. P. Srinivas, learned Counsel for the third Respondent has taken enormous efforts to substantiate his case that the Petitioners have never
been engaged as NMRs especially on the crucial date namely, on 01.10.1996 as per the G.O.Ms. No. 125, Municipal Administration and Water
Supply Department, dated 27.05.1999 and therefore, they are not eligible for the benefits as per the said Government Order. He has relied upon
the genuineness of a letter written by Mr. T. Suyambukesan, Joint Secretary to Government, Municipal Administration & Water Supply
Department, dated 05.04.2007 wherein, the Joint Secretary to the Government, has stated that the Petitioners have worked as NMRs from
12.08.1993 to 01.06.2003 in Tambaram Municipality and therefore, they have fulfilled the conditions stipulated in G.O.Ms. No. 125, Municipal
Administration and Water Supply Department, dated 27.05.1999. In the said letter, it is also stated that the Petitioners were directed
recommended for inclusion in the NMRs list and absorb them in the vacant entry level posts as per the direction of this Court.
The genuineness of the said letter is questioned by the learned Counsel for the third Respondent on two grounds namely that the said letter
contains the seal of the office of the Commissioner of Municipal Administration, dated 11.05.2006 while the letter itself, dated 05.04.2007 and
therefore, according to him, the said letter should have been manipulated. Secondly, it is his contention that in the letter dated 05.04.2007 written
by Mr. T. Suyambukesan, Joint Secretary to Government to the Commissioner of Municipal Administration, a reference has been made in
reference No. 1, referring to a letter of the Commissioner of Municipal Administration No. 14049/07/F2, dated 07.11.2007. He has also brought
to the notice of this Court that in the letter dated 05.04.2007, a reference has been made about the letter of November 2007 which also
probablise that there has been some mal-practice played in respect of the Petitioners services some where. He has also produced the entire
original records to show that no where in the records there is any reference or indications to show that the Petitioners were working as NMRs
especially on the crucial date namely, 01.10.1996. When the order was passed in the writ petition, on 05.01.2007, all the Respondents including
the third Respondent municipality have been represented by the learned Special Government Pleader, and even though no one of the Respondents
have chosen to file counter affidavit, the learned Special Government Pleader, on instructions has made his submissions and it was after hearing
both the counsels, the abovesaid order came to be passed. The operative portion of the order passed by this Court is as follows:
In view of the same, the writ petition stands ordered with the direction to the third Respondent to consider the claims of the Petitioners in terms of
G.O.Ms. No. 125, Municipal Administration and Water Supply Department, dated 27.05.1999 and in the light of the decision of the Tamil Nadu
Administrative Tribunal in O.A. No. 3284 of 2003, dated 30.09.2003 as confirmed in W.P. No. 35364 of 2004, dated 31.03.2005 and the
subsequent Division Bench order and make necessary appointments with all consequential reliefs, within a period of six weeks from the date of
receipt of a copy of this order and the writ petition stands ordered in the above terms.
On a reference to the file produced by the third Respondent, it is true that the letter of the then Commissioner of the third Respondent
municipality in Na.Ka. No. 6108/2004/E2, dated 06.03.2006 addressed to the Commissioner Municipal Administration, the copy of which is
partly available at Page-551 of Volume II of the file produced before this Court which contains a reference that the Petitioners have been working
on the crucial date as per the G.O.Ms. No. 125, Municipal Administration and Water Supply Department, dated 27.05.1999 and there are
nominal muster roll registers relating to MCR. No. 95 dated 21.05.1996 which contains the address of one of the Petitioners namely S.
Sureshkumar, and he has signed in the muster roll register. However, in respect of the other Petitioners except in page-567, which the contains
names of S. Sureshkumar, B. Sekar and S. Saravanakumar who have signed in the nominal muster roll whose names have been marked without
mentioning the month or year and without the signatures of the parties concerned other names are not found. It is also seen that in the letter of the
Commissioner of Municipal Administration in Na.Ka. No. 71166//F4, dated 27.02.2006 addressed to the third Respondent Commissioner of
Municipality, the Commissioner of Municipal Administration has referred to the names including the names of the Petitioners stated to have worked
from 1993 onwards and informed the third Respondent that the Commissioner alone is competent to appoint NMRs. The other letter of the then
Commissioner of the third Respondent municipality in Na.Ka. No. 6148/2004/E2, dated 23.05.2006 addressed to the Commissioner of
Municipal Administration which is found in page 583 of the volume II of the file, the third Respondent Commissioner himself has included the
names of the Petitioners and recommended the names of the Petitioners including 11 other persons to be appointed on daily wage basis and sought
permission. The said letter runs as follows:
In the said letter, the third Respondent commissioner has also given some numbers in respect of all the 15 persons including the Petitioners.
It was only after hearing the learned Special Government Pleader on the basis of the said letter dated 06.03.2006, the order came to be
passed by this Court since it has been the admitted case of the third Respondent that the Petitioners were employed during the relevant point of
time namely 12.08.1993, 03.08.1993, 10.09.1993 and 09.08.1993 and on the crucial date namely 01.10.1996 they were in employment.
Unfortunately, the third Respondent who has chosen to raise the present point of discrepancy in the letters as stated above, has not chosen to raise
anything about that in the writ petition and even in the grounds of appeal filed it was not raised, even though third Respondent has stated that the
Petitioners were not employed at the relevant point of time.
In such view of the matter, in my considered view, it is certainly not open to the third Respondent to raise the new issue at the stage of the
contempt proceedings. Even otherwise, as I have stated that on a perusal of the original records produced by the third Respondent, there is
certainly some clue to show that what is stated by the Petitioners is substantially true but the point to be decided is not that in the contempt
proceedings.
Section 20 of the Contempt of Courts Act, 1971, is as follows:
Limitation for actions for contempt: No court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry
of a period of one year from the date on which the contempt is alleged to have been committed.
The period of limitation prescribed for initiating proceedings under the Contempt of Courts Act, is within one year from the date of when the
cause of action for contempt arises. It was in T. Deen Dayal Vs. High Court of Andhra Pradesh, , the Hon''ble Supreme Court has held that if due
to the conduct of the contemnors, the proceedings could not be initiated for contempt, such period has to be taken into consideration in cases
where contempt petition is filed beyond one year period. The relevant portion of the said judgment is as follows:
Lastly, it was argued that the petition was barred by time u/s 20 of the Act. As rightly pointed out by the High Court Section 20 of the Act
merely provides for limitation to initiate the proceedings and not for the conclusion of contempt proceedings. The proceedings were initiated by
order dated 16.04.1985 whereas the allegations constituting contempt were contained in an affidavit filed on 27.03.1985. Therefore, the time
taken for disposal beyond one year partly on account of the Appellant himself, as pointed out earlier cannot be permitted to argue that the
application was barred by limitation.
The construction of Section 20 has also been explained by the Hon''ble Apex Court in Pallav Sheth Vs. Custodian and Others, , as follows:
Action for contempt is divisible into two categories, namely, that initiated suo moto by the court and that instituted otherwise than on the
court''s own motion. The mode of initiation in each case would necessarily be different. While in the case of suo motu proceedings, it is the court
itself which must initiate by issuing a notice, in the other cases initiation can only be by a party filing an application. In our opinion, therefore, the
proper construction to be placed on Section 20 must be that action must be initiated, either by filing of an application or by the court issuing notice
suo motu, within a period of one year from the date on which the contempt is alleged to have been committed.
In Om Prakash Jaiswal Vs. D.K. Mittal and Another [OVERRULED], , it was held that Section 5 of the Limitation Act, does not apply and
Section 20 strikes at the jurisdiction of the Court to initiate proceedings of contempt. The relevant paragraph of the said judgment is as follows:
In the cases contemplated by (i) or (ii) above, it cannot be said that any proceedings for contempt have been initiated. Filing of an application
or petition for initiating proceedings for contempt or a mere receipt of such reference by the court does not amount to initiation of the proceedings
by court. On receiving any such document it is usual with the courts to commence some proceedings by employing an expression such as ""admit"",
rule"", ""issue notice"" or ""issue notice to show cause why proceedings for contempt be not initiated"". In all such cases the notice is issued either in
routine or because the court has not yet felt satisfied that a case for initiating any proceedings for contempt has been made out and therefore the
court calls upon the opposite party to admit or deny the allegations made or to collect more facts so as to satisfy itself if a case for initiating
proceedings for contempt was made out. Such a notice is certainly anterior to initiation. The tenor of the notice is itself suggestive of the fact that in
spite of having applied its mind to the allegations and the material placed before it the court was not satisfied of the need for initiating proceedings
for contempt; it was still desirous of ascertaining facts or collecting further material whereon to formulate such opinion. It is only when the court has
formed an opinion that a prima facie case for initiating proceedings for contempt is made out and that the Respondents or the alleged contemners
should be called upon to show cause why they should not be punished; then the court can be said to have initiated proceedings for contempt. It is
the result of a conscious application of the mind of the court to the facts and material before it. Such initiation of proceedings for contempt based
on application of mind by the court to the facts of the case and the material before it must take place within a period of one year from the date on
which the contempt is alleged to have been committed failing which the jurisdiction to initiate any proceedings for contempt is lost. The heading of
Section 20 is ""limitation for actions for contempt"". Strictly speaking, this section does not provide limitation in the sense in which the term is
understood in the Limitation Act. Section 5 of the Limitation Act also does not, therefore, apply. Section 20 strikes at the jurisdiction of the court
to initiate any proceedings for contempt.
On the facts of the present case, even according to the Petitioners, the contempt complained of is based on the order of the third Respondent,
dated 27.02.2007. When that is the cause of action, the Petitioners themselves have issued a legal notice against the Respondents for initiating
contempt only on 20.10.2009 which is beyond one year from the date of the act of the third Respondent. Even though in the notice, it is stated that
the Petitioners have approached the Respondents several times, it was dragged on, there is absolutely nothing on record to show that it was by the
conduct of the third Respondent, the Petitioners were made to believe that the order of this Court will be implemented so as to justify, that the
contempt petitions were not filed within one year from the date of the passing of the order by the third Respondent dated 27.02.2007. On record it
is clear that the Petitioners have filed contempt before this Court on 17.11.2009. Therefore, even if this Court holds that there is some substance in
the contention raised by the Petitioners, it is by virtue of the conduct of the Petitioners in not approaching the court within the period of limitation
prescribed by the Contempt of Courts Act, 1971, it is not possible to entertain the contempt petition filed by the Petitioners. It is for the Petitioners
to work out their remedies in the manner known to law based on the order of the third Respondent dated 27.02.2007. Further, it is relevant to
point out that in the contempt proceedings such probe about the fraud alleged by the third Respondent cannot be looked into and what is required
is as to whether there has been an intentional violation or disobedience of the order of the Court, of course, subject to the party coming to the
court within the period of limitation prescribed under the Contempt of Courts Act. Therefore, I am of the considered view that on the point of
limitation, the Petitioners are not entitled for any indulgence in the contempt proceedings.
In such view of the matter, leaving it open to the Petitioners to work out their remedies against the order passed by the third Respondent,
dated 27.02.2007, the contempt proceedings against the Respondents are dropped. Accordingly, the contempt petition stands dismissed. No
costs.