Prabhanjan Mohanty and Others vs Tripurari Sharan and Others

S.K. Sahoo, J.—Judiciary is the guardian of the rule of law. The rule of law is the foundation of a democratic society. The Judiciary performs its duties and functions effectively and remains true to the spirit with which it is sacredly entrusted. The dignity and authority of the Courts have to be respected and protected at all costs. Flagrant violation and disobedience of the orders of the Courts undermine the authority of the Courts, its dignity and the administration of justice which strikes at the very root of rule of law on which the judicial system rests. Every party to the lis before the Court and even otherwise, is expected to obey the orders of the Court in its true spirit and substance and with due dignity for the institution.

The petitioners approached this Court in W.P.(C) 12614 of 2008 for quashing the order of the Central Administrative Tribunal, Cuttack Bench, Cuttack dated 27.08.2008 passed in O.A. No. 321 of 2008 in dismissing the original application holding the same to be premature. It was further prayed in the writ application to issue a writ in the nature of mandamus directing the opposite party to implement the judgments of the Tribunal in O.A. No. 441/1992, O.A. No. 562/1992 and O.A. No. 362/1992 which were upheld by the Hon''ble Supreme Court. It was further prayed to set aside the appointments of the opposite parties No. 3, 4 and 5 namely Smt. Kiranbala Mishra, Rasmikanta Nayak and Paresh Chandra Mohapatra respectively at Sl. No. 1, 5 and 6 in the office order dated 16.07.2008 issued by Deputy Director (Administration), Prasar Bharati (Broadcasting Corporation of India), Director General: Doordarshan Kendra, New Delhi. It was further prayed to confer all the consequential benefits to the petitioners.

The aforesaid writ petition was disposed of vide order dated 09.07.2009 with the following order:--

"09.07.2009. Heard learned counsel for the petitioner and learned counsel for the Union of India.

In view of the order passed in Civil Appeal No. (s). 6421-6423 of 2003 annexed to the affidavit as Annexure-5 filed by the petitioners in the Court today, nothing remains to be decided in this writ application except directing that the Tribunal''s judgment in Annexure-1 be implemented as early as possible preferably within a period of six months.

The writ application is disposed of accordingly."

This contempt application has been filed by the petitioners to the initiate a contempt proceeding against the opposite parties for willful violation of order of this Court dated 09.07.2009 passed in W.P.(C) No. 12614 of 2008 with a further prayer to punish them suitably and adequately and direct them to implement the order dated 09.07.2009 forthwith.

It is the case of the petitioners that they were working on casual basis in Doordarshan Kendra, Cuttack/Bhubaneswar and their works were of different nature i.e. Carpenter, Floor Assistants, General Assistant, Painter, Makeup, Production Assistants etc. They filed original applications before the Central Administrative Tribunal for a direction for regularization allowing age relaxation, if any and to direct the opposite parties not to make fresh recruitment till the petitioners were regularized. The petitioners No. 1 to 8 were the applicants in O.A. No. 8/94 and the petitioners No. 9 to 15 were the applicants in O.A. No. 441 of 1992. The Tribunal directed to prepare Kendra-wise seniority list and those who had completed more than 120 days in a calendar year should take precedence and be appointed according to their seniority as and when vacancy would arise in future. The learned Tribunal clarified that those who had not completed 120 days in a calendar year and had worked for a total period of 200 days or any number of days should not be deprived of being included in this seniority list and receiving appointments when their turn comes and directed to pay the minimum basic salary of a regular employee. Against the judgment of the Tribunal, Special Leave Application was filed before the Hon''ble Supreme Court and since no stay was granted, the Director General by Memorandum dated 13.05.1997 directed to implement the judgment. The S.L.P. was dismissed for default by the Hon''ble Supreme Court. The petitioners filed O.A No. 321 of 2008 which was held to be premature by the learned Tribunal against which writ petition bearing W.P.(C) No. 12614 of 2008 was filed for a direction to implement the common judgment of the learned Tribunal dated 16.11.1993 and 26.05.1994. During pendency of the writ petition, dismissal order was recalled by the Hon''ble Supreme Court and S.L.P. was heard on merit and vide order dated 21.01.2009, the Hon''ble Supreme Court refused to interfere and accordingly dismissed the S.L.P. where after this Court vide order dated 09.07.2009 directed the authorities to implement the common judgment as early as possible preferably within a period of six months.

It is the further case of the petitioners in the contempt petition that during the pendency of the litigation, three persons namely Smt. Kiranbala Mishra, Rasmikanta Nayak and Paresh Chandra Mohapatra who had joined as Casual General Assistants long after the petitioner Nos. 1, 2 and 16 who were also Casual General Assistants were regularized as L.D.C. on pick and choose basis ignoring the case of the petitioners and bypassing the judgments after dismissal of the S.L.P. on default. It is the further case of the petitioners that the opposite parties are indifferent in implementing the judgments of the learned Tribunal which was upheld by the Hon''ble Supreme Court as well as the direction of this Court although the stipulated period for implementation was over and in the meantime 16 years had elapsed.

Notice was issued to the opposite parties who entered appearance and filed their show cause indicating therein that there has been compliance of the order of the Tribunal dated 16.11.1993 as well as the order of this Court. The opposite party department has issued a speaking order dated 09.07.2010 and made a serial panel list as per the engagement and a list of minimum basic pay which has already been communicated to all the petitioners by Registered Post. It is further stated in the show cause that the delay caused was not deliberate but due to examining and verifying the order of the Tribunal dated 16.11.1993.

The petitioners filed their rejoinder affidavit to the show cause filed by the opposite parties wherein they indicated that the alleged speaking order dated 09.07.2010 indicates that petitioner Nos. 1 to 15 are ineligible as they had not completed 120 days in one calendar year without mentioning the number of days they had worked. It is further stated in the rejoinder affidavit that no seniority list was prepared and published as directed by the Ministry and Central Administrative Tribunal. It is further indicated that there was a clear direction in the judgment that those who had worked for a total period of 200 days or any number of days in between 121 to 200 during a period covered from 1989 to 1992 and thereafter should also be included in the seniority list. It is the further case of the petitioners in rejoinder affidavit that eight petitioners had worked for more than 121 days during the period covered from 1989 to 1992 and two persons namely Paresh Chandra Mohapatra and Kiranbala Mishra who have worked during the period from 1989 to 1992 only for 110 days and 80 days respectively have been regularized as LDC.

The opposite parties filed objection to the rejoinder affidavit wherein it is stated that as per the direction of this Court as well as the Central Administrative Tribunal, a seniority list was prepared in which the casual workers who had completed more than 120 days in a calendar year were declared eligible as per the Regularization Scheme, 1992 and 1994 and other casuals who have been declared ineligible and who are out of the scheme have also featured in the list. Thus, working for more than 120 days after the cut off date will not entitle a casual worker for regularization over and above the declared eligible casual workers as per the scheme. It is further stated that similarly placed persons like the petitioners filed contempt petitions before the Central Administrative Tribunal, Cuttack Bench, Cuttack vide C.P. No. 1 of 2010 and C.P. No. 10 of 2010 against the inaction of the opposite parties and non-implementation of the order of the Central Administrative Tribunal, Cuttack Bench, Cuttack and after receipt of the notice, the opposite parties contested the contempt proceeding by filing show cause and the Tribunal has been pleased to drop the contempt proceeding against the opposite parties vide order dated 21.09.2010.

On 09.09.2011 this Court passed the following orders in this contempt proceeding:--

"09.09.2011. This contempt application has been filed alleging non-compliance of the order dated 9.7.2009 passed by this Court in W.P.(C) No. 12614 of 2008.

The aforesaid writ application was filed against the order dated 27.8.2008 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 321 of 2008. The petitioners had filed the aforesaid Original Application before the Tribunal praying for implementation of the judgment of the Tribunal passed in O.A. No. 441 of 1992 and for preparation of the seniority list as per the direction contained in the said order and to take immediate steps for regularizing the services of the petitioners. The Tribunal by order dated 27.8.2008 dismissed the Original Application as premature and also observed in the said order that the main relief sought for in the case has already been decided by the Tribunal in an earlier Original Application. Challenging the said order, the writ application out of which this contempt arises was filed and the said writ application was disposed of by order dated 9.7.2009. Following is the order passed by this Court on 9.7.2009.

"Heard learned counsel for the petitioners and learned counsel for the Union of India.

In view of the order passed in Civil Appeal No(s).6421-6423 of 2002 annexed to the affidavit as Annexure-5 filed by the petitioners in Court today, nothing remains to be decided in this writ application except directing that the Tribunal''s judgment in Annexure-1 be implemented as early as possible preferably within a period of six months.

The writ application is disposed of accordingly."

Three Original Applications bearing Nos. 441, 562 and 362 of 1992 had been filed before the Tribunal by a group of casual workers. All the three Original Applications were disposed of in a common judgment. The tribunal directed the contemnors that a seniority list of all the casual workers be prepared Kendra wise and those casual workers, who have completed more than 120 days in a calendar year, shall take precedence over those casual workers who have not completed 120 days during a span of more than one year. For the purpose of regularization, upper age limit be relaxed and after preparation of the Kendra wise seniority, regularization be made in accordance with seniority. It was further directed by the Tribunal in the said judgment to pay the minimum basic pay scale to all the casual workers, which is being given to a regular employee discharging the similar nature of duties. The above judgment of the Tribunal was carried to the Hon''ble Supreme Court in Civil Appeal No. 6421, 6422 and 6423 of 2002 and all the Civil Appeals were dismissed for default but subsequently they were again heard on merit and dismissed on 21.1.2009. In view of the above order of the Tribunal and the order passed by the Hon''ble Supreme Court, this Court disposed of the writ application with the observation as quoted above and directed the contemnors to implement the judgment of the Tribunal in the aforesaid three Original Applications, which were disposed of in a common judgment.

It is alleged in the contempt application that during pendency of the litigation, three persons, namely, Smt. Kiranbala Mishra, Rashmikant Nayak and P. Ch. Mohapatra, who had joined as casual workers long after the petitioners 1 and 2, had been regularized as L.D.C. on pick and chose basis. It is also alleged in the contempt application that in spite of the direction of this Court, the Tribunal''s order passed in the aforesaid three original applications is not being implemented.

A reply has been filed by the Senior Administrative Officer, Doordarshan Kendra, Bhubaneswar in response to the notice in the contempt application. It is stated in the reply that in compliance of the order passed by the Tribunal and this Court, the Department has passed a speaking order on 9.7.2010. A serial panel list as per the engagement of different casual labourers has already been prepared. It is also stated in paragraph-6 of the reply that order of this Court as well as the Tribunal have already been complied with. On perusal of the reasoned order dated 9.7.2010 passed by the Director, Doordarshan Kendra, Bhubaneswar, it appears that in compliance of the order of the Tribunal and this Court cases of the petitioners were considered sympathetically taking into account their initial booking as per the provisions of the scheme dated 9.6.1992 and 17.3.1994. It is further stated in the said letter that case of Shri Ashok Kumar Sahoo, Shri Janaki Prasad Mohapatra and Sri Bhanudev Sethi were under consideration for appointment but the same has been kept in abeyance on account of the judgment of the Hon''ble Supreme Court in the case of State of Karnatak Vrs. Uma Devi and after approval of the scheme of 1992 and 1994, their cases shall be considered. It is further stated that petitioners 1 to 15 are ineligible as they did not fulfill the criteria of regularization as envisaged in the scheme dated 9.6.1992 and 17.3.1994, having not completed 120 days in one calendar year. Similarly the applicants at serial Nos. 16 to 25 attached to the said order are also ineligible as they fall out of the scheme.

Shri G.A. Dora, learned Senior Counsel appearing for the petitioners drew attention of the Court to Annexure-5 attached to the rejoinder and submitted that some other employees as stated in the contempt application had also not completed 120 days of employment in a calendar year but they have been regularized in service.

From Annexure-5, we find that none of the petitioners had rendered service for more than 120 days in a calendar year ranging between 1989 to 1992. Only because they have not rendered 120 days of employment in a calendar year, their cases have not been considered for the purpose of regularization, but in the case of Smt. Kiranbala Mishra, we find that she had been employed for 40 days in the year 1990 and again for 40 days in the year 1991 but she has been regularized in service. Though a specific averment in this regard has been made in the contempt application, there is no reply to the said averment in the show cause filed by the contemnors. Similarly, persons appearing at serial Nos. 16 to 25 attached to the order have been considered ineligible under the scheme as is evident from the order dated 9.7.2010 passed by the Director, Doordarshan, Bhubaneswar but no reason has been assigned as to how they have become ineligible (Out of Scheme). It is therefore clear from the documents annexed to the contempt application and the rejoinder that though the contemnors have refused to consider the case of the petitioners 1 to 15 on the ground that they have not completed 120 days of employment in a calendar year, the services of one Smt. Kiranbala Mishra, who had only rendered 40 days of employment in the year 1990 and 40 days in the year 1991, was junior to all the petitioners and also had not rendered the required number of days of employment for the purpose of regularization had been regularized. A clear discrimination has been made between the petitioners and the said Smt. Kiranbala Mishra.

We are therefore of the view that the contemnors are not only guilty of non-compliance of the order of the Tribunal and this Court but also are guilty of suppression of material facts. Accordingly, we direct them to show cause as to why they shall not be convicted under Section 12 of the Contempt of Court''s Act. The contemnors are directed to show cause within one month from today.

The contempt application be listed after five weeks."

In pursuance of the order dated 09.09.2011, the opposite parties filed their show cause affidavit wherein it is stated that the Director General, Doordarshan, New Delhi issued a notification vide No. 2(3)/86-SI dated 09.06.1992 regarding "Scheme for regularization of Casual Artists" in Doordarshan in pursuance of the direction the Supreme Court and Central Administrative Tribunal particularly CAT, Principal Bench, New Delhi passed in O.A No. 563/86 dated 14.2.1992 in case of Anil Kumar Mathur v. Union of India. It is further stated that the "Regularization Scheme 1992" came into force and operated and thereafter the Director General, New Delhi issued a memo regarding "Guidelines for implementing the scheme for regularization of Casual Artists in Doordarshan" vide letter No. 2(3)/86-SI dated 10.06.1992. It is further stated that after receiving various complains from the Kendras and individuals, the Director General, Doordarshan, New Delhi issued a memo vide letter No. 4(1)/94-SI dated 05.07.1994 with certain clarifications. It is further stated that Sri Rashmikanta Naik, Paresh Chandra Mohapatra and Smt. Kiranbala Mishra had joined Doordarshan Kendra, Bhubaneswar as per "Regularization Scheme" of 1992 and 1994 and their regularization was prior to delivery of judgment of Hon''be Supreme Court of Indian in Civil Appeals Nos. 6421/2002, 6422/2002 and 6426/2002 on 21.01.2009. It is further indicated that all the sixteen petitioners were considered for regularization out of which eight persons were found to be over age even after giving age relaxation as per the regularization scheme/revised scheme and seven persons had not completed 120 days in any calendar year as per the regularization scheme/revised scheme and one person was booked after the cut off date i.e 31.12.1991. The non-fulfillment of eligibility criteria of the petitioners were mentioned in detail in the show cause affidavit. It is further stated that no illegality has been committed by the alleged contemnors and they have acted as per "Regularization of 1992" and "Revised Regularization Scheme of 1994" during pendency of Civil Appeals in the Hon''ble Supreme Court of India. It is further stated that the alleged contemnors have highest regard for this Court and therefore it was prayed to drop the contempt proceeding for the ends of justice.

On 04.11.2011 this Court passed the following orders in this contempt proceeding:--

"04.11.2011 Heard Mr. G.A.R. Dora, learned counsel for the petitioners and Mr. S. Barik, learned Central Government Counsel for the O.P.-contemnors.

We find the Deputy Director General (P), Doordarshan Kendra, Bhubaneswar, who is not a party to this contempt proceeding, has filed the show cause affidavit, which is not in accordance with the order of this Court dated 9.9.2011, whereas the contemnors have to show cause. The contempt proceeding being a criminal proceeding, show cause reply cannot be filed by another person other than the contemnors. Therefore, the said show cause affidavit is rejected.

Let the contemnors appear before this Court in person on 5th December 2011 at 10.30 a.m. and show cause as to why appropriate action under the Contempt of Courts Act shall not be taken against them for non-compliance of this Court''s order dated 9.7.2009 passed in W.P.(C) No. 12614/2008 as well as criminal proceeding shall not be initiated for suppressing the facts as per the order of this Court''s dated 9.9.2011.

Put up the matter on 5th December, 2011 at the top of the list."

In pursuance of order dated 04.11.2011 Sri Bimal Chandra Gupta who was arrayed as opposite party No. 2 filed an affidavit indicating therein that the regularization scheme for Casual Artists for Doordarshan was prepared in pursuance of the judgment of the Central Administrative Tribunal, Principal Bench, New Delhi vide its judgment dated 14.02.1992 passed in O.A. No. 563/86 and in the year 1994 the working of the scheme was revised in the light of various problems faced in its implementation and various Court judgments. This scheme as modified was considered by the Hon''ble Supreme Court in Civil Appeal Nos. 4787 to 4794 of 1996 wherein the Hon''ble Supreme Court observed that the direction of the Tribunal in the matter of age relaxation has to be governed in the light of scheme as modified vide O.M. No. 17.03.1994 and 05.07.1994. It is further stated that the scheme as modified from time to time and upheld by the Hon''ble Supreme Court was followed consistently by the opposite parties and the cases of all the petitioners had been considered accordingly and they had been given age relaxation as per the modified scheme of 1994 which came into force in view of the observations of the Tribunal in its order dated 16.11.1993. It is further stated that Ms. Kiranbala Mishra, Casual General Assistant completed 120 effective working days in the year 1990 as per the provisions of the Scheme of Regularization besides she was within the maximum age limit and fulfilling other eligibility criteria laid down in the relevant recruitment rules and accordingly she was regularized under the scheme.

On 05.12.2011 this Court passed the following orders in this contempt proceeding:--

"05.12.2011 Heard Mr. G.A.R. Dora, learned counsel for the petitioners and Mr. D. Mohapatra, learned counsel appearing for O.P. 2.

In terms of this Court''s order dated 4.11.2011, the contemnors are not present.

Mr. Mohapatra files a show cause affidavit sworn to by O.P.2 along with a copy of the affidavit written in Hindi in Court. He submits that O.P.2 has retired from service on 31.1.2010.

As the order of this Court dated 9.7.2009 passed in W.P. (C) No. 12614 of 2008 remains non-complied till date, issue notice to the present Director, Doordarshan Kendra, Prasar Bharati Board-Casting Corporation of India, Bhubaneswar directing him to appear before this Court in person on 10th January, 2012 at 10.30 a.m. and show cause as to why appropriate action under the Contempt of Courts Act shall not be taken against him for non-compliance of the said order.

Put up this matter on 10th January, 2012.

Issue urgent certified copy."

In pursuance of the order dated 05.12.2011, Mr. Baikuntha Panigrahy who was working as Deputy Director General (P), Doordarshan Kendra, Bhubaneswar filed the show cause affidavit wherein it is stated that no illegality has been conducted by the contemnor and he has acted in consonance with "Regularization Scheme of 1992" and "Revised Regularization Scheme of 1994" during pendency of Civil Appeal in Hon''ble Supreme Court challenging the order dated 16.11.1993 of Central Administrative Tribunal passed in O.A. Nos. 362/1992, 441/1992 and 562/1992. It is further stated that the Doordarshan Kendra, Bhubaneswar prepared a list and found that the petitioners were not eligible for regularization either under the orders of the Central Administrative Tribunal or under the relaxed scheme prepared by the authority. It is further stated that the alleged contemnor and the opposite parties have highest regards to the orders of this Court.

We have heard Mr. G.A.R. Dora, learned Senior Counsel for the petitioners and Mr. Dayananda Mohapatra, learned Special Counsel for Doordarshan Kendra, Bhubaneswar for the opposite parties and carefully considered the averments taken in the contempt petition, show cause affidavits, rejoinder etc. filed by the parties from time to time.

Mr. Dora though contended that there has been willful violation of the order of this Court dated 09.07.2009 passed in W.P.(C) No. 12614 of 2008 and some persons who joined as Casual General Asst. long after the petitioner Nos. 1, 2 and 16 were regularized on pick and choose basis ignoring the case of the petitioners, Mr. Mohapatra refuting such contention contended that there is no such willful violation. The learned Special Counsel emphasized that the "Scheme for Regularization of Casual Artists" in Doordarshan was notified on 09.06.1992 by the Director General, Doordarshan, New Delhi in pursuance of the direction of the Supreme Court and Central Administrative Tribunal, Principal Bench, New Delhi passed in O.A. No. 563/86. The Scheme was taken note of by the Central Administrative Tribunal, Principal Bench, New Delhi and it was approved finally and accordingly this scheme was implemented and operated. It is the further contention of Mr. Mohapatra that Director General, New Delhi issued guidelines for implementation the scheme for regularization of Casual Artists in Doordarshan on dated 10.06.1992 and after receiving various complains from the Kendras and individuals, Director General, Doordarshan on dated 05.07.1994 issued certain clarifications. It is contention of the learned counsel for the Doordarshan that no illegality was ever committed by the alleged contemnor rather they acted in consonance with "Regularization Scheme of 1992" and "Revised Regularization Scheme of 1994". Mr. Mohapatra further contended that scheme formulated by Doordarshan vide O.M. dated 17.03.1994 and O.M. dated 05.07.1994 were upheld by the Hon''ble Supreme Court with modification. Mr. Mohapatra contended that as per the scheme formulated, the petitioners were found to be either over age in spite of the benefit of relaxation of age criteria was extended to them or they were found to have not worked for minimum days as required under the scheme. Mr. Mohaptra further contended that Doordarshan Kendra, Bhubaneswar prepared a list and the contempt petitioners were not found eligible and it was further contended that the petitioners have misinterpreted the direction of learned Central Administrative Tribunal, Cuttack Bench, Cuttack and ignored the cut-off date as indicated in the scheme as on 31.12.1991 which was upheld by the CAT and the Hon''ble Supreme Court. It is contention of Mr. Mohapatra that any inclusion of the period of work ended in the year 1992 is not sustainable nor it is in consonance with the direction of Hon''ble Central Administrative Tribunal or this Court.

After hearing the learned counsels for the respective parties, we are of the view that schemes were formulated for regularization of the Casual Artists and guidelines were issued for implementing the schemes and the schemes were revised after receiving complains from Kendras and individuals and such schemes of the year 1992 and 1994 have been examined by the Hon''ble Supreme Court as well as the Principal Bench, Central Administrative Tribunal, New Delhi and as per the schemes, the cases of the petitioners were considered and they were found to be not eligible for regularization and therefore they were not regularized. The submissions made on behalf of the petitioners that services of three persons were regularized on pick and choose basis are found to be not correct. In view of the detailed discussion what we have narrated above, we are of the view that no case of willful violation of the order of this Court dated 09.07.2009 in W.P.(C) No. 12614 of 2008 is made out. It is apparent from the show cause affidavits filed by the opposite parties as to why the petitioners were not found eligible for regularization and how the averments made in the contempt petition that three persons were regularized as L.D.C. on pick and choose basis ignoring the case of the petitioners are not correct.

In exercise of contempt jurisdiction, the Courts are primarily concerned with enquiring whether the contemnor is guilty of intentional and willful violation of the orders of the Court. The act of disobedience and the attendant circumstances are relevant to consider whether the case would fall under civil contempt or criminal contempt. The Court while dealing with an application for contempt is concerned whether the earlier decision which has received its finality had been complied with or not. It is impermissible for a Court to examine the correctness of the earlier decision which had not been assailed and take a view different than what was taken in the earlier decision. Right or wrong, the order of the Court has to be obeyed. The Court exercising contempt jurisdiction cannot take upon itself the power to decide the original proceedings in a manner not dealt with by the Court while passing the judgment and order. The Court cannot traverse beyond the order whose non-compliance is alleged. It cannot test the correctness or otherwise of the order or give additional direction or delete any direction which would amount to exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. If there is any ambiguity or indefiniteness in the order, it is for the concerned party to approach to higher Court to agitate the grievance that the order is not legally tenable. If the same is not done, then the directions are binding and must be obeyed by the parties and all concerned stricto sensu.

In view of what we have discussed above, we are satisfied with the show cause affidavits filed from time to time and we are of the view that opposite parties have not willfully flouted the order of this Court dated 09.07.2009 passed in W.P.(C) No. 12614 of 2008 and accordingly, we do not find any ground to proceed against the opposite parties for the contempt of the order of the Court. Therefore, the contempt proceeding is dropped.

Vinod Prasad, J.

I agree.