CC/1598/2009 of Sri Jakkam Veeraiah Vs Sri Narasing Rao on 30 December 2009

ORDER :

This contempt case is filed alleging violation of the order of thisCourt dated 23.10.2009 in W.P.No.16650 of 2009 and to punish therespondents under the provisions of the Contempt of Courts Act, 1971.W.P.No.16650 of 2009 was filed by the petitioner seeking adeclaration that the order passed by the respondents dated 01.10.2008declaring that the petitioner shall retire on 31.10.2009 as arbitrary andillegal.

It was contended that the petitioner’s correct date of birth was14.10.1956 and therefore he would attain the age of 60 years only on14.10.2016 and thus he should be continued in service till 31.10.2016.

Having heard both the parties and having taken intoconsideration the plea of the respondents that after filing the writ petitionthe petitioner was referred to Apex Medical Board for assessment of hiscorrect age in terms of Circular dated 23.12.2003, this Court disposed ofW.P.No.16650 of 2009 by order dated 23.10.2009, with directions asunder:

“Having regard to the decision taken by therespondents to refer the petitioner’s case toApex Medical Board, the learned counsel forthe petitioner represented that the petitioneris ready and willing to subject himself forexamination by the Apex Medical Board.The learned standing counsel appearing forthe respondents under instructions submittedthat the Apex Medical Board will beconstituted at an early date for determinationof the age of the petitioner. The learnedcounsel for the petitioner undertakes toensure the appearance of the petitioner before the Apex Medical Board without failprovided the date is intimated in advance.In the circumstances, it is not necessary forthis Court to go into the merits andaccordingly, the writ petition is disposed ofwith a direction to the respondents toconstitute the Apex Medical Board in terms ofCircular dated 23.12.2003 for determinationof the age of the petitioner and inform thedate fixed for appearance of the petitioner inadvance under proper acknowledgement. Thereafter as per the opinion of the ApexMedical Board the respondents shall takeappropriate decision and communicate thesame to the petitioner. Till such time, theimpugned order dated 01.10.2008 shall notbe given effect to.

Writ Petition is accordingly disposed of. Nocosts.”

In this contempt case it is alleged that the respondent authoritiesdid not allow the petitioner to perform his duties on 28.10.2009 statingthat unless and until a copy of the judgment in the writ petition isproduced he will not be allowed to discharge his duties. It is pleadedthat the copy of the order in W.P.No.16650 of 2009 was issued by thisCourt to the petitioner’s counsel on 30.10.2009 and on the same day thecopy was sent to the respondents by registered post. That apart on31.10.2009, the petitioner approached the 2[nd] respondent and produceda copy of the order in the writ petition. However, the 2[nd] respondentadvised the petitioner to submit the said copy on 01.11.2009 stating that31.10.2009 was a non-working day for the Collieries, 8 A Incline. Accordingly, on 01.11.2009 the petitioner approached the 2[nd]respondent along with the president of the Union and three othermembers to submit the judgment copy. It is alleged that instead ofreceiving the copy the 2[nd] respondent expressed dis-respect for theorders passed by this Court and stated that they were not bound by theorder. It was also claimed that since the petitioner had already retired

from service on 31.10.2009, the order was not binding. In thecircumstances, on 03.11.2009 a copy of the order was again sent byregistered post to the respondents. In spite of the same, the respondentsneither allowed the petitioner to discharge his duties nor he was givenany intimation to appear before the Apex Medical Board in compliancewith the order of this Court. Hence, this contempt case.

A detailed counter affidavit has been filed by the 3[rd] respondent-Deputy General Manager denying the allegations made by the petitionerand stating that on 27.10.2009 itself when the petitioner attended to hisshift duty at 7.15 AM he was served with the letter dated 26.10.2009informing to appear before the Apex Medical Board on 29.10.2009which was constituted as per the directions of this Court inW.P.No.16650 of 2009. It is alleged that the petitioner refused to takethe letter and the same was recorded in the presence of two otherwitnesses. A copy of the said letter was also displayed in the noticeboard at the Mine premises where the petitioner was working and thesame was also sent to the petitioner by registered post as well asthrough the local courier. The petitioner refused to take delivery of theletter sent through the courier. However, the respondents hadconstituted the Apex Medical Board on 29.10.2009 with the hope thatthe petitioner, who was fully aware of the constitution of the MedicalBoard, would abide by the directions of this Court. However, thepetitioner did not appear before the Apex Medical Board andconsequently the Apex Medical Board submitted a report on the basis ofthe records available assessing the age of the petitioner as 60 years ason 29.10.2009. The allegation of the petitioner that he was not allowedto duty from 28.10.2009 onwards has been specifically denied and it ispleaded that the alleged contempt on their part is false and without anybasis.

I have heard the learned counsel for both the parties and perusedthe material on record.

As noticed above, whereas the petitioner alleges that therespondents refused to receive the copy of the order of this Court submitted by the petitioner and also did not allow him to attend theduties from 28.10.2009 onwards, the same has been categoricallydenied by the respondents and it is stated by the respondents that inspite of the fact that a Medical Board was constituted in terms of theorder of this Court and notice was given to the petitioner he refused toreceive the same and did not appear before the Medical Board forassessment of his age. Both the parties produced before this Court thematerial to substantiate their respective versions.

It is to be noticed that, even in the affidavit filed in support of thewrit petition, it was alleged that his request to send him to Medical Boardfor assessment of age was not considered by the respondent authoritiesand the same was disputed by the respondents. Having regard of therival claims and with a view to put an end to the controversy, this Courtdisposed of the writ petition by order dated 23.10.2009, with thedirections extracted above. The said order was passed with the consentof both the parties and no opinion was expressed on the merits of thecase. As a matter of fact this Court had only recorded the decisionalready taken by the respondents to refer the petitioner’s case to theApex Medical Board and the willingness of the petitioner to submithimself for such medical examination by the Apex Medical Board. ThisCourt also recorded the undertaking given by the counsel for thepetitioner to ensure the appearance of the petitioner before the ApexMedical Board without fail, provided the date was intimated in advance.

Conclusion

As could be seen, this contempt case is based on the petitioner’sallegation that there was no such intimation of the constitution of theMedical Board and on the other hand the petitioner was restrained fromattending his duties in deliberate violation of the orders of this Court. Therespondent authorities have denied the allegations and placed thematerial before this Court to show that though advance intimation wasgiven to the petitioner on 26.10.2009 itself, the petitioner himself hadrefused to receive the same. Such a disputed question of fact cannot begone into and decided by this Court and as a matter of fact in view of thechequered history of this case, such enquiry is not necessary for the purpose of the present contempt case and it is not a fit case to takecognisance under the provisions of the Contempt of Courts Act, 1971.

In the result, the Contempt Case is dismissed. However, this shallnot preclude the petitioner to work out the appropriate remedy asavailable under law against the report given by the Apex Medical Boarddated 29.10.2009 as well as the consequential action of the respondentsin retiring the petitioner with effect from 01.11.2009. No costs.

Date: 30.12.2009

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G. ROHINI, J.

Ivd