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Judgment
S.P. Talukdar, J.—Grievance of the applicant/writ petitioner, as ventilated in the present application, relates to alleged inaction, if not, willful indifference, on the part of the respondents-authority in complying with the judgment and order dated 15th November, 1987 passed by learned Single Bench of this Court in C.R. No. 3301 of 1979.
The petitioner filed an application under Article 226 of the Constitution thereby challenging the charge sheet dated 27th November, 1978 issued by the Additional Inspector General of Police, the Disciplinary Proceeding No. 21 of 1975 and the enquiry report dated 8th August, 1978 submitted by the Deputy Inspector General of Police, Headquarters � West Bengal. The petitioner also raised grievance regarding certain adverse remarks in the Annual Confidential Report.
The learned Single Bench of this Court after contested hearing of the matter disposed of the writ application by the judgment and order dated 15th November, 1987. The relevant direction given in the said judgment is:
In view of my findings that all the orders impugned in the writ application excepting the charge sheets cannot be sustained, the respondents are directed to accord all the service benefits, the writ petitioner would have been entitled had he not been proceeded against within 8 weeks from date. The promotion and confirmation of the petitioner to which the petitioner would have been entitled had he not been fastened with the orders impugned in the writ application should be taken up for consideration by the respondents for conferment of the benefits of promotion and confirmation within 6 weeks from the date of communication of this order....
The judgment and order of the learned Single Bench dated 15th November, 1987 was assailed by the State-respondents by way of filing an appeal. By an order dated 24th April, 2001 the learned Division Bench of this Court dismissed the appeal for default.
This prompted the writ petitioner to initiate a contempt proceeding. Subsequently the contempt application was not proceeded with as the same was filed beyond a period of one year from the date of judgment of the appeal court. The contempt proceeding being CPAN No. 1015 of 2003 was dismissed by the learned Single Bench of this Court by an order dated 8th July, 2004 without prejudice to the rights if any, of the petitioner to take such further proceeding as he is entitled to in law. Such observation of the learned Single Bench inspired the writ petitioner to file the instant application.
Mr. Biswas appearing as learned Counsel for the respondents at the very outset submitted that an application for restoration of the appeal is pending. The fact however, remains that the appeal was dismissed as far back as in the year 2001. Mere pendency of an application for restoration in absence of any order of stay cannot be a ground for not entertaining the present application. It may be mentioned that the learned Division Bench while dismissing the appeal specifically observed, "Interim order if any, stands vacated". Such order required the State-respondents to be vigilant and in absence of the same, there can be no reason for the court for not proceeding with the instant application.
Mr. Biswas thereafter challenged the maintainability of the present application on the ground that the writ petitioner cannot be permitted to execute the order of the court by taking recourse to filing of a further writ application. It was submitted that it is for the petitioner to take steps following the principles as laid down in the CPC for the purpose of execution of an order. Mr. Biswas referred to Section 47 of the Civil Procedure Code, which relates to execution, satisfaction and discharge of a decree/order. It was also contended on behalf of the respondents that the direction given by the learned Single Bench of this Court is not implementable in view of its inherent absurdity.
I am afraid this Court cannot go into that aspect at all.
On the other hand, Mr. Gupta as learned Counsel for the petitioner referred to the decision in the case between Food Corporation of India Vs. S.N. Nagarkar, . It was submitted that in exercise of its power under Article 226 of the Constitution, the writ court can very well mould reliefs having regard to the facts of the case and interest of justice.
In the case of Food Corporation of India (supra), the respondents as petitioner filed a writ application, which was disposed of by the High Court with a direction upon the appellant/F.C.I. to give the benefit of pay fixation to the respondents as Assistant Grade II and Assistant Grade I and also to consider his case for promotion to the post of Assistant Manager (D) from the date the persons junior to him were promoted. Direction for payment of arrears pay as well as interest thereon was given as well. After sometime, the respondent filed an application under Order 21 Rules 10 & 11(2) read with Section 151 C.P.C. praying that the application for execution of the order passed in the writ petition be allowed and the full amount/arrears with interest be ordered to be paid. Said application was allowed by the High Court with the findings that the judgment and order nowhere indicated that the arrears were to be paid from the date of his joining and not from the date of his promotion. It directed the appellant/F.C.I. to pay the arrears in terms of that order. While challenging the same before the Supreme Court, the appellant contended that the case was one where notional promotion and seniority was given to the respondent/writ petitioner and that the employee concerned was entitled to the pay scale of the promotional post only with effect from the date he joined the post and not from the date of his promotion.
The Apex Court in the said case held that "in execution proceeding, it is not permissible to go beyond the order which was passed in the writ petition".
Mr. Gupta referred to the directions contained in the judgment and order dated 15th November, 1987 passed in C.R. No. 3301 (W) of 1979. The same are:
i) According all service benefits to which the petitioner would have been entitled had he not been proceeded against;
ii) Giving promotion and confirmation to the petitioner to which he would have been entitled had he not been fastened with the orders impugned in the writ application;
iii) Re-calculation of all retiral benefits including pension, gratuity etc. of the petitioner after computation of all service benefits;
iv) Completion of service book making relevant entries as stated above.
As mentioned earlier, the contempt application, being CPAN No. 1015 of 2003, was filed more than 15 years after the said order/dated 15th November, 1987.
It is no wonder that the learned Counsel Mr. Gupta appearing for the petitioner in the said contempt application chose not to proceed with the same. Learned Court accordingly, dismissed the contempt application as withdrawn. Liberty was however, given to the petitioner for filing appropriate application for execution of the order passed in the writ petition if he is otherwise entitled to.
Mr. Biswas appearing as learned Counsel for the respondents while assailing the instant application on the ground of maintainability submitted that there could hardly be any question of giving any benefit of promotion when the person concerned admittedly did not function or work in such post. Deriving inspiration from the Apex Court judgment in the case between Union of India (UOI) Vs. B.M. Jha, , it was submitted that no salary could be granted for the period during which the concerned person did not work in the promotional post.
It is found that the Apex Court relying upon two other earlier decisions i.e., in the case of State of Haryana and Others Vs. O.P. Gupta, etc., and A.K. Soumini Vs. State Bank of Travancore and Another, observed that even in case of notional promotion from retrospective date, it could not entitle the employee to arrears of salary, as the incumbent has not worked in the promotional post. Such decisions were made relying upon the principle of "no work no pay".
Mr. Biswas thus, sought to impress upon the court that the judgment of the learned Single Bench dated 15th November, 1987 in view of its inherent impropriety cannot be executed.
Before proceeding further, it is perhaps necessary to mention that this Court while dealing with the instant application is certainly not sitting over as a Court of Appeal. The applicant has just knocked the door of this Court in order to get the said order dated 15th November, 1987 executed. The earlier attempt by filing a contempt application obviously could not succeed in view of the belated approach, if not for other reasons as well. For the purpose of execution of an order, this Court cannot just go beyond the said order. Legality, propriety or justifiability of the said order cannot certainly be a matter for consideration. For all practical purposes, it is a situation where this Court is "not to reason why but to do and comply".
Significantly enough, the instant application does not specifically refer to any particular provision of law. It is not indicated as to whether it is intended to be execution under provisions of the Code of Civil Procedure. It is purely an effort on the part of the applicant to get the order of the leaned Single Bench dated 15th November, 1987 which became final and binding in view of the order of the Hon''ble Division Bench dated 24th April, 2001 properly executed.
Section 141 of the CPC deals with Miscellaneous Proceedings. It lays down that the procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction.
In the explanation given in the Code itself, it is stated that the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.
Then what should be the remedy left for the aggrieved person. For the inbuilt restrictions in the Contempt of Court Acts, it could not be possible for the applicant to get the relief. Thus, he could not enjoy the benefit of an order passed in his favour. But can this Court really come to the rescue of the applicant and get an order passed on 15th November, 1987 which again became final on 24th April, 2001 implemented.
Since much emphasis was laid by learned Counsel Mr. Gupta, on the judgment of the Apex Court in the case of Food Corporation of India (supra), the same deserves to be appreciated in its proper perspective. The respondents before the Apex Court being the writ petitioner, S.N. Nagarkar, filed a writ application seeking the service benefits, which was extended to an officer placed on a similar footing. The said writ petition was allowed with direction upon the respondents to give the benefits of pay fixation to the petitioner, S.N. Nagarkar, as Assistant Grade-II and Assistant Grade-I. Learned Court further directed the respondents to consider his case for promotion to the post of Assistant Manager (D) from the date persons junior to him had been promoted. There was further direction for payment of the arrears and in default of the same within the period, as directed, the authorities were required to pay interest @ 18 % per annum. Since the petitioner was not given any formal order of promotion or notional seniority nor any action was taken to promote him as Assistant Manager (D), he filed a contempt petition, which he withdrew on 19.12.1995. He filed second contempt petition, which was disposed of by the court by its order dated 25.4.1996. The contempt application was disposed of relegating the writ petitioner to his remedy of challenging the impugned action of the respondents by filing a civil writ petition. The said writ petitioner, Mr. Nagarkar, thereafter filed a writ petition before the High Court at Allahabad. Since it was essentially for execution of an order passed by the Punjab and Haryana High Court, it was held to be not maintainable before High Court at Allahabad. The petitioner then filed a writ application before Punjab and Haryana High Court and the same was held to be not maintainable since it was in the nature of an application for execution and full implementation of the order passed by the court. The petitioner, however, was given liberty to file an application for execution of the order passed in the original writ petition being No. 4983 of 1993. The petitioner filed an application under Order 21 Rules 10 & 11(2) read with Section 151 of the CPC praying for an order directing payment of full amount/arrears with interest. The said application was held to be not maintainable in view of dismissal of the earlier contempt application. It was observed that if any amount was due and payable, the only remedy of the applicant was to approach the civil court.
This order was again challenged by filing a special leave petition. The said SLP was dismissed with liberty to the petitioner to move the High Court for review or clarification of the impugned order. The review petition was accordingly filed and the same was allowed. The order whereby the review application was allowed being order dated 16.2.1999 was challenged by way of ''letters patent appeal''. The same was dismissed by order dated 30th April, 1999. This prompted the Food Corporation of India to approach the Apex Court. The Apex Court while dealing with the matter took into consideration the various aspects as dealt with by the learned Writ Court at the first instance. In that context, the Apex Court held that in exercise of writ jurisdiction, the court may very well mould the relief. The controversy raised in the present application, however, is separate and distinct. Here too, the writ petitioner filed a contempt application being CPAN No. 1015 of 2003 on 7th July, 2003. The said application was, thus, filed virtually after 16 years of passing of the order. Order of the learned Single Bench remained unaltered in view of dismissal of the appeal for default. The said order of the learned Division Bench was again passed on 24th April, 2001. What emerges from the materials available on record is that the petitioner had been consistently negligent. The challenge thrown on the ground of maintainability in such backdrop cannot just be brushed aside. Law is for the vigilant and not for the dormant. The present application does not refer to any specific provision of the Code of Civil Procedure. It however, relates to execution of an order passed as far back as in 1987. There is no such material to the satisfaction of the judicial conscience of the court so as to justify entertaining the application. In course of submission, reference was made to an unreported decision of learned Single Bench of this Court in E.C. No. 58 of 2003/W.P. No. 2581 of 2001. Learned Court deriving inspiration from the decision of the Apex Court in Puran Singh and others Vs. State of Punjab and others, , observed that Rule 53 of the writ rules clearly shows how this Court has made its writ jurisdiction procedurally free and flexible. It was held that the power to execute its own orders is not derived by the writ court from the relevant writ rules; it is inherent in it that derives the plenary power from Article 226 of the Constitution of India. The crux of the controversy is not regarding maintainability of the instant application for execution. It rather relates to justifiability of entertaining an application filed on 8th of September, 2004 for implementation of an order made in 1987.
The fact that the petitioner having not worked in the post where he was directed to be promoted is not entitled to get the salaries and allowances of the promotional post is not the main issue in the present application. Thus, question of moulding the relief as sought for is hardly of any relevance.
What is important is that the legal dispute must come to an end. It cannot be protracted indefinitely. An issue cannot be permitted to be dug out after decades - and, all that in the name of ''interest of justice''.
In the considered opinion of this Court, the present application being W.P.C.R. No. 20430 (W) of 2004 does not deserve to be entertained at this belated stage and that too, after withdrawal and consequent dismissal of the contempt application being CPAN No. 1015 of 2003. Accordingly, the present application W.P.C.R. No. 20430 (W) of 2004 fails and be dismissed.
There is no order as to costs.
Urgent xerox certified copy of the judgment be supplied to the parties, if applied for, as expeditiously as possible