Nirbhai Singh Dhillon vs Sohan Singh Bassi and Others

Man Mohan Singh Gujral, J.—This is a rale calling upon Shri Sohan Singh Bassi, Irrigation and Power Minister, Punjab, Shri Paramjit Singh, Commissioner cam-Secretary to Government, Punjab, P.W.D. B&R Branch, punjab, and Shri Kewal Krishan, Chief Engineer, Punjab, P.W.D., B&R, to show cause why they should not be committed for contempt. The rule has been issued on the application of Shri Nirbhai Singh Dhillon, Supervisor. Outside State Property, Panjab, P.W.D., B&R, Patiala, which contains the following allegations. The services of the Petitioner who was working as Supervisor, Outside State Property in Pepsu were terminated by order dated 12th November, 1955. This order led to a series of representations by the Petitioner praying that the order be set aside as it was illegal. Ultimately, by order dated 19th March, 1968 the Punjab Government which was the successor Government after the merger of the Pepsu with Punjab reinstated the Petitioner in service. The copy of this order is Annexure A. Having succeeded in getting the order of his removal from service set aside the Petitioner started making representations asking for the payment of arrears of pay and allowance due from 1st October, 1953 and also for promotion in the Department which he would have earned had his services not been terminated. Repeated requests having failed to persuade the concerned authorities to pay him arrears of salary and to promote him to his proper place in the cadre the Petitioner filed a civil writ in this Court being Civil Writ No. 3261 of 1968. In this petition the Petitioner claimed a mandamus directing the respondents to release his entire arrears of salary and to allow all other rights, privileges and benefits to which he was entitled.- This writ petition came up before B.R. Tuli, J., who by order dated 20th February, 1969 accepted the writ petition with the direction that the Petitioner should file his affidavit of income as required under the rules within a fortnight and the State Government should then decide the case expeditiously preferably within a period of four months from the date of the order. The grievance of the Petitioner is that even though this Court had directed the respondents to decide the case within four months but for over a year and a half the respondents had not cared to decide the question of his arrears of pay and other rights and privi1eges and the respondents thereby committed contempt of this Court by wilfully disobeying its orders in Civil Writ No. 3261 of 1968 Allegations of mala fides were also made against respondent No. 1 on the ground that the Petitioner had fought an election against this respondent in 1967. From this it was sought to be inferred that respondent No. 1 had malice against the Petitioner and because of this malice he had ignored the directions of this Court in Civil Writ No. 3261 of 1968 It is, how. ever, admitted in the petition that by order dated 7tb April, 1970 the Petitioner had been ordered to be paid salary for a period of three years preceding 7th October, 1969. As the question of tie Petitioner''s promotion and other privileges to which he was entitled had not been decided by the respondents the present petition was filed with the request to commit the respondents for contempt for their disregard of the orders of this Court.

The respondents appeared and have filed their affidavits. Respondent No. 1, Shri Sohan Singh Bassi, in his affidavit dated 24th October 1970 while admitting that the Petitioner''s service had been terminated by the Pepsu Government and he had been subsequently reinstated by the Punjab Government by order dated 19th March 1968 and while also admitting that the Petitioner had made representations after the passing of the order of his reinstatement added that at that time he was holding the office of the Minister and that the matter had been dealt with by the Advisor to the Governor who had made the following proposal:

I have consulted L R. on both cases and his views are embodied in my proposals.

We have to carry out the orders of reinstatement of Shri Dhillon but we should only pay him for the period during which he did not work after he filed a suit. This will mean that he will only get 3 years pay due to limitation.

Re-withdrawal of case against Raghuram, the withdrawal is final and nothing can be done (Linked case below).

This respondent also denied the allegations of mala fides and pleaded that he bad in fact been supporting the case of the Petitioner for the payment of full salary to him. Reference was made by this respondent to the following rote recorded by him:

I find that the main reason for not allowing full pay and allowances beyond the period of three years is the advice given by L R, at page 54 ante However, in another case of Shri S.P. Leokha (placed below as linked file No. II) the L.R. has held that "though the claim was time-barred yet it is not the policy of the Government to brush aside the just claims of its employees on technical grounds." I see no reason why the same principle should not apply in the case of Shri Dhillon.

Furthermore I have not been able to follow as to what type of Show Cause Notice is to be served on Mr. Dhillon. Issuing of the Show Cause Notice itself would indicate that his representation. was accepted in toto and there does not seem to be any reason to depave him of the benefit which has already accrued to him as a result of the acceptance of his repre entation.

In view of the above, I feel that he should be paid areas of full pay for the entire period. Since this is an important matter and a case of its own type which will be a precedent in future C.M. may also kindly see after L.R. has seen his advice at page II of L.F. II.

As ultimately the Law Department did not agree the orders had to be passed in accordance with the advice of the Law Department. In view of this, it was stated by respondent No. 1 that there was no truth in the allegation that he bore any ill-will or grudge against the Petitioner. With regard to the other demands of the Petitioner respondent No. 1 stated that the question of fixation of the Petitioner''s pay had been referred to the Finance Department and the advice received from that Department had been seat to the office of the Chief Engineer. It also emerges from the statement of respondent No. 1 that orders for the payment of three years'' arrears had already been passed by the Government and that the Chief Engineer had been directed to examine the claim of the Petitioner for promotion vis-a-vis the claims of other Supervisors in the Department and that the Chief Engineer has taken a decision on this question also In the end it was stated by respondent No. 1 that the case had been delayed because the matter had to be inferred to the Law Department.

Shri Paramjit Singh, Commissioner for Public Works and Secretary to Government, Punjab, P.W.D.B. and R. while giving a detailed account of the movement of the file relating to the case of the Petitioner denied that the orders of this Court had been wilfully disobeyed or that any wilful delay had occurred in the disposal of the Petitioner''s case. In this respect it was stated as under "In view of the position stated in the foregoing paras it will be seen that every effort has been made by the answering respondent to implement the directions of the Hon''ble High Court as early as possible and no wilful delay has occurred by respondent No. 2 in deciding the case of the Petitioner. The answering respondent took all the action that was required of him and lay within his powers and issued final orders of Govt. regarding payment of arrear dues and asked for the proposal of Chief Engineer, P.W.D. & R regarding claim for promotion of the Petitioner. The respondent has the highest respect for the Hon''ble Court and he cannot even dream of disobeying the orders of this Court. It is prayed that the petition may be dismissed." Along with the reply respondent No. 2 also filed copies of the notes of the Law Department and copies of some of the notes recorded by him while dealing with the case of the Petitioner.

From the reply filed by respondent No. 3 it emerges that as the order of reinstatement of the Petitioner was not clear with regard to the arrears of pay and other benefits to be allowed to him. Reference was made by him to Government on 6th March, 1969. On this reference ultimately Government conveyed the decision by memo dated 7th April, 1970 directing the Chief Engineer that the Petitioner should be paid arrears for a period of three years preceding 7th October, 1969 as the Petitioners claim for payment of arrears of pay and allowances beyond that period was found to be time barred. It is further stated by respondent No. 3 that after the receipt of orders from the Government steps had been taken for making payment to the Petitioner of the arrears of pay in accordance with the orders of the Governor and that the case of fixation of pay of the Petitioner had also been referred to the Accountant General Punjab. After the reply from the Accountant Genera), Punjab, had been received the case was sent to Government for verification and fixation of the Petitioners pay in the revised scale by the Finance Department as desired by the Accountant-Ganeral, Punjab. It also emerges from the affidavit of respondent No. 3 that the question of the Petitioner''s seniority had also been decided. With regard to the delay in the disposal of the case, the position taken by this respondent is that the case was very old one and required creation of a supernumerary post in consultation with the Administrative Department, Finance Department and the Accountant-General, Punjab. If is stated that whole procedure was very circuitous and the period of four months could not be adhered to It was also stated that as now the orders of the High Court had been complied with and most of the claims raised by the Petitioner had been settled no action under the Contempt of Courts be taken.

Before considering whether any and which of the respondents is guilty of contempt it would be appropriate to consider the guiding principles which have to be kept in view in determining the liability of the respondents to be committed for contempt. As pointed out by the Supreme Court in Debabrata Bandopadhyay and Others Vs. The State of West Bengal and Another, , the question whether there is contempt of Court or nut is a serious one as the Court is both the accuser as well as the Judge of the accusation and it behaves the Court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising from invetrate practices in courts and tribunals. It was pointed out that it is only when a clear case of contumacious conduct not explainable otherwise arises that the contemner must be punished. The power under the Contempt of Courts Act being of an extraordinary nature which is exercised summarily the Courts should be generally reluctant to exercise the power particularly in a civil contempt. In the case of a breach of an order of a Court by an official normally a presumption is drawn in his favour that he had committed infringement of the order unintentionally. If on the other hand, there are circumstances showing that the official had not acted bona fide it would then be appropriate to regard the action as wilful. In judging the conduct of an alleged contemner it will also have to be borne in mind that contempt proceedings are of a quasi criminal nature and, therefore, whereever there is a reasonable doubt the person charged with contempt is entitled to the benefit of this doubt. In Abdul Razack Sahib v. Mrs. Azizunnissa Begum AIR 1870 Mad. 14, it was further observed that having regard to the high function of a Court of justice, proceedings by way of contempt of Court should not be used as a ''Legal thumbscrew'' by a party against his opponent for enforcement of his claim. In that case failure to deposit into Court moneys claimed by the opposite party and ordered to be deposited was held not to amount to a contempt of Court. The Court while considering the question whether contempt of Court has been committed has to make all allowances for errors of judgment ''and also has to take into consideration difficulties arising from the circumstances of a given case Before a person can be punished for contempt of Court for disobeying th" orders of the Court it has to be seen that the lapse has been deliberate and in defiance of the authority of the Court. As remarked by Dua. C.J., as he then was, in Nand Kishore Chela Mal Vs. Commissioner of the Municipal Corporation of Delhi and Others, , the casual manner in which some of the departments of local self government are known to function, has to be taken into account when determining the question of the offence of contempt in the sense of the lapse being conscious and deliberate. In that case, resort to contempt proceedings for the purpose of securing execution of Court''s order for the benefit of a private litigant was considered to be unworthy of encouragement.

On behalf of the Petitioner, reference was made to the following observations in Ekka Tonga Mazdoor Union and Others Vs. The Aligarh Municipal Board and Others, .

The orders of the Courts are to be implemented and acted upon with promptitude If their implementation is unduly delayed, it would amount to showing scant respect to the Court concerned and its judicial process which would obviously be a serious contempt of that court even though the persons ought to be injucted or restrained might have no intention to flout the orders of the court, for in many cases the very object of obtaining the order of stay or restraint would be rendered nugatory and the thing sought to be enforced or restrained by the court might be accomplished or completed such as in the case of stay of demolition etc. Moreover, considerable delay in carrying out an order of a court after notice, without adequate explanation for laches, would by itself constitute serious contempt of court, inasmuch as it tends to undermine the prestige and authority of a court of law the efficacy of its judicial process. A person who has obtained an order in his favour from a court is entitled to instant relief and its delayed implementation would discredit the administration of Justice." In the above case, a prohibitory order had been issued by the High Court ordering the respondents not to realise any fee for the use of stands located in certain localities This order was served on the municipal board. The fee was levied from the Petitioners though the orders had come to the notice of the official levying the fee. In these circumstances, Gyanendra Kumar J., made the above observations requiring the implementation of Court''s order with promptitude as any delay in the carrying out of such order was likely to undermine the prestige and authority of the Court and also render the order nugatory in certain cases. The facts of the present case, as would be seen hereafter, are entirely different and the observations made above have no bearing on this case.

Coming to the facts of the present case it may be stated at the outset that most of the claims raised by the Petitioner had been settled by the time this petition came up for final hearing and even though some time had been taken in settling these claims it would not be a proper case for punishing the respondents for contempt for the delay that has occurred in setteling the Petitioner''s claims. The orders of the Court having been complied with it would not be appropriate to commit the respondents for contempt merely because there has been some delay unless it is shown that the delay was wilful and intentional with a view to cause harm to the Petitioner. Excepting against respondent No. 1 there are no allegations in the petition that the other respondents were motivated by any extraneous considerations to delay the matter or the delay was mala fide. As regards respondent No. 1 the allegations of malice have also not been establised. The notes recorded by Shri Sohan Singh Bassi leaves no manner of doubt that he had made every effort to help the Petitioner in getting more than what the Department or the Legal Remembrances thought was due to the Petitioner. Shri Bassi agreed to the proposed order of paying the arrears of salary for three years only after the law Department had twice given the opinion that the Petitioner could not be paid for the entire period between the date of this removal from service and the date of his reinstatement. The Petitioner has, therefore, failed to establish that respondent No. 1 had any ill will against him or that he hid delayed the case mala fide.

In considering whether there has been disobedience of the orders of this Court, a reference will have to be made to the relevant portion of the order of Tuli, J., passed in Civil Writ No. 3261 of 1968:

In view of the statements made in the return of respondents 1 and 2, I accept this writ petition and direct that the Petitioner shall file an affidavit of his income as required under note 11 below Rule 73 of the Civil Services Rules, Volume 1, Part I, indicating the amounts earned by him during the period he remained out of service on other jobs, within a fortnight in case such an affidavit has not already been filed The State Government shall decide the case expeditiously, preferably within a period of four months from today.

In the writ petition the Petitioner had asked for an order directing the respondents to release the entire arrears of salary due to the Petitioner right from the date of the termination of his services and other rights, privileges and benefits to which he was entitled and which bad been given to P.N. Nehru who had been appointed in the resulting vacancy, in the reply the respondents in the writ petition had taken up the position that the details of the arrears of pay, etc., were being worked out by the Department. It was also stated that the claim of the Petitioner for promotion and other benefits was being examined by taking into consideration the claims of other supervisors working in the Department, In these circumstances, Tuli, J., ordered the State Government to decide the case of the Petitioner expeditiously and preferably within a period of four months. While passing the above order this Court was conscious of the complicated nature of the questions that had to be decided by the Department and the fact that the- decision was likely to take some time and it was probably for this reason that only a general direction was given to the State to conclude the matter expeditiously and the period with in which the decision had to be taken had not been clearly spelled out Having regard to the nature of the order passed by this Court and considering the cucumstances of the case it would be only proper to punish the respondents if it is shown that any intentional or wilful delay had been caused by them in settling the claims of the Petitioner.

While considering the question of delay it will have to be noticed that part of the delay was caused by the Petitioner taking up the position that it was inherent in the order of the reinstatement of the Petitioner that he would be paid full salary for the period during which he remained out of service and that he would be entitled to other benefits, privileges, etc. The position taken by the Petitioner further is that the respondents had accepted this claim in their reply filed in Civil Writ No. 3261 of 1968 and were only requiring time to workout the details of the amount to be paid and the benefits to be given. This position was not accepted by the Department and this led to the examination of the whole matter for which a number of reference had to be made to the law Department for soliciting legal opinion.

The Petitioner had been reinstated by order dated 19th March, 1968 and the question of fixation of his pay and the decision of his other claims first came up before the Adviser to the Governor as in those days the President''s rule was in force in the State. By order dated 30th October, 1968 the Adviser considered the representation of the Petitioner and recommended that he should be paid arrears for three years only, The Petitioner then filed the writ petition which was accepted by order dated 20th February. 1969 to the extent that the respondents were directed to decide the claim of the Petitioner as expeditiously as possible Shortly after the order had been passed respondent No. 2 Shri Paramjit Singh took over as Secretary to Government Punjab, Irrigation Department, in March, 1969 On coming to know of the order of the High Court respondent No. 3 moved the Govern rent by letters dated 6th March, l969 and 9th April, 1969, for a decision on the claims of the Petitioner. In these letters the case of Petitioner had been set out at length and the view-point of the Department had also been spelled out. From April 1969 to April 1970 the file remained with the Lrigation Department and the Minister concerned and during this period a number of references were made to the Law Department by the Secretary and the Minister separately. At this stage the movement of the file while it was in the Department may briefly be noticed After reference was made by the Chief Engineer on 6th March, 1969 and 9th April, 1969 the file was first placed before respondent No. 2 on 9th April 1969 and he recorded a note on 15th April, 1969 on the basis of which a reference was then made to the Legal Remembrancer on 30th April, 1969. On 27th May, 1969 the file was received from the Law Department and was placed before respondent No. 2 who recorded another note on 13th June, 1969 seeking further advice of the Law Department which was received on 16th June, lbb9 and the case was sent to respondent No. 1 on l7th June, J969. From this date till 26th September, 1969 the file was with respondent No. 1 who in order to take final decision had to refer it to the Law Department a couple of times On receipt of the order of respondent No. 1 the draft of the letter was submitted to the Minister who again recorded a note and the case was referred to the Legal Remembrancer to consider the necessity of issuing a show-cause notice to the Petitioner. On 20th November, 1969 the advice from the Law Department was received and the Petitioner was served with a notice on 4th December 1969. This reply was forwarded to the Law Department on 23rd January, 1970 and the file was received on 25th February, 1970 after which date for a short time the file remained with the State Minister, P.W. D., and then ultimately the order was passed on 7th April, 1970 for the payment of salary at full rate for a period of three years. Formal approval of respondent No. 2 was obtained on 14th May, 1970 and instructions were issued to the Chief Engineer to examine the claim of the Petitioner for promotion and to send necessary proposal to the Government. Within a few days the file was sent for by the Vigilance Department from where it was received on 9th September, 1970 and the Chief Engineer was asked to expedite the proposal regarding the claim of the Petitioner for promotion.

From the above resume of the movement of the file it would emerge that at no stage did the file remain with respondent No. 2 for any length of time. Farther more, from the notes recorded by him it is abundantly clear that respondent No. 2 was always conscious of the fact that it was a date-boun case aid an early decision had to be take a and in two of the notes recorded by him he actually recorded that the case was date-bound and while submitting the case to the Legal Remembrancer requested that the advice be tendered on priority basis (Annexure 2). The Learned Counsel appearing for the Petitioner could not point out any particular period of time daring which the file had been with respondent No. 2 which could be considered as unnecessarily long. Having regard to the circumstances of the case and the complicated questions that had to be decided in view of the timelag between the dismissal of the Petitioner and his reinstatement, it is not possible to hold that respondent No. 2 had wilfully disobeyed the orders of this Court by attempting to delay the disposal of the case.

In respect of the delay all that the Learned Counsel for the Petitioner was able to point out was that on two occasions the rile was with respondent No. 1 for over two months and in view of this it was urged that at least respondent No. 1 be punished for contempt. This contention is also devoid of force. The questions involved in the case were complicated and even the Minister who wanted to help the Petitioner bad to take the advice of the Law Department as the Law Department was insisting that the Petitioner was only entitled to arrears of pay for three years while the Minister was inclined to allow the arrears for the entire period during which the Petitioner had been out of service. Moreover, while considering the question of delay in the case of a minister it will have to be remembered that in a democratic sot up ministers have to perform multifarious duties and considerable part of their time is spent in political activity with the result that much time is not available to them for attending to administrative work. Moreover, all that can be said in the case is that respondent No. 1 was probably not fully conscious of the urgency of the matter and had not brought to bear the attention that was required in view of the orders of the High Court dated 20th February, 1969. It appears that respondent No. 1 did treat the file some what casually but as has been repeatedly observed only wilful default is punishable in these proceedings and not merely negligence or unintentional mistake.

l3. For the reasons recorded above, I am clearly of the view that it is not a fit case for taking action against the respondents under the Contempt of Courts Act and I accordingly discharge the rule and dismiss the petition.