STATE OF BIHAR & ORS. versus MEERA TIWARY & ANR. on 11 June 2019

[2019] 12 S.C.R. 915

STATE OF BIHAR & ORS.

v.

MEERA TIWARY & ANR.(Civil Appeal No.9750 of 2010)

JUNE 11, 2019

[INDIRA BANERJEE AND AJAY RASTOGI, JJ.]

Contempt of Court – Jurisdiction of High Court – RespondentNo.1’s husband (since deceased) was appointed Junior Engineerin the Public Works Department on or about 01.08.1958 – He waspromoted to the post of Temporary Assistant Engineer on ad hocbasis and was thereafter given regular promotion to the post ofAsst. Engineer– In 1995, he retired from service– Died on30.05.2004 – Till his death, his retiral benefits were not released–Respondent No.1 filed writ petition for payment of post-retiralbenefits of her late husband– Vide order dated 21.09.2004, theauthorities were directed to redress her grievances – Contemptpetition filed by the Respondent no.1 – High Court directed theauthorities to finalise the family pension of the respondent no.1taking into account the notional salary payable to her husband onthe date of his retirement i.e.30.6.1995– On appeal, held: Authoritieswere directed to fully redress the grievances of the petitioner, and/or to release the retiral dues of late husband of the respondentno.1– It was not open to the appellants to circumvent the orderpassed by the High Court and release provisional pension andgratuity and that too calculated in relation to the salary andemoluments of Junior Engineer, a lower post – There were two ordersof promotion, the first ad hoc, and the second, of regular promotion– Further, after the disposal of the writ petition, in the absence ofany disciplinary proceedings or show cause notice or other material,it was not open to the authorities to deny the respondent no.1, thebenefits pertaining to the post to which her husband had beenpromoted, on the purported ground that he had failed to join thepost and allegedly remained absent from duties for a period of 13years and 10 months– In proceedings for contempt, the High Courtis entitled to pass orders for effective enforcement of an orderviolation of which is alleged – High Court merely directed the alleged

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Acontemnor to finalise the dues payable to the respondent no.1 havingregard to the salary that should have been payable to her husbandon the date of his retirement as Asst. Engineer, the post to which hewas admittedly promoted – High Court did not modify any earlierorder nor did it expand the scope of any earlier order – No groundto interfere with the judgment of the High Court – Service Law –BBihar Service Code – rr.58 and 76.

Dismissing the appeal, the Court

HELD: 1.1 Significantly, no show cause notice was everissued to the husband of the respondent no.1, since deceased,Cduring his lifetime alleging that he had not joined the dutiespertaining to the post of Assistant Engineer or had remainedabsent for a continuous period of five years. Continuous absenceof five years would most certainly have attracted disciplinaryproceedings. There were no disciplinary proceedings. Unable toaccept the argument that the High Court modified or expandedDthe scope of the original order in the writ proceedings in contempt.The concerned authorities were directed to fully redress thegrievances of the petitioner, and/or in other words, to releasethe retiral dues of late the husband of the respondent no.1 in full.The dues necessarily had to be computed having regard to theEsalary and allowances pertaining to the post which the husbandof the respondent no.1, since deceased, had held at the time ofhis retirement. After the disposal of the writ petition, in theabsence of any disciplinary proceedings or show cause notice orother material, it is not open to the authorities concerned to denythe respondent no.1 the benefits pertaining to the post to whichFher husband had been promoted, on the purported ground thathe had failed to join the post and had allegedly remained absentfrom duties for a period of 13 years and 10 months. There weretwo orders of promotion, the first ad hoc, and the second, a regularpromotion order, as per the list of dates filed by the appellantsGalong with the appeal. [Paras 13-15] [921-F-H; 922-A-C]

1.2 It is preposterous that a second order would have beenissued confirming the promotion to the post of Assistant Engineer,if late husband of the respondent no.1 had not joined the postpursuant to the earlier order and had remained absent.

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Significantly, there is not a whisper of the exact date from whichlate husband of the respondent no.1 allegedly stopped attendingto his duties and remained absent. It seems quite absurd that aperson promoted on ad hoc basis, who had not been attending tohis duties should be promoted on regular basis. It is equallydifficult to accept that a person who had been attending to hisduties would suddenly stop attending to his duties upon hispromotion to a higher post. In proceedings for contempt, theHigh Court is entitled to pass orders for effective enforcementof an order of which violation is alleged. The High Court directedrelease of the retiral dues of the husband of the respondent no.1,since deceased, in entirety and not in part. The authoritiesconcerned did not finalise the dues, but only sanctioned and/orreleased provisional gratuity and provisional pension and thattoo on the basis that the husband of the respondent no.1, sincedeceased, had continued to be a Junior Engineer as on the dateof his retirement. It was not open to the appellants to circumventthe order passed by the High Court and release provisionalpension and gratuity and that too calculated in relation to thesalary and emoluments of a lower post. [Paras 16-19] [922-D-H;923-A]

1.3 The High Court, in effect and substance, found that thedues on account of the husband of the respondent no.1, sincedeceased, should be computed on the basis of the salary pertainingto the post of Assistant Engineer to which the husband of therespondent no.1, since deceased, had admittedly been promoted.Unable to accept the belated plea of the contemner-respondentsthat the husband of the respondent no.1, since deceased, hadremained absent. Words and/or phrases in a judgment cannot beread as “Euclid’s Theorems” and in any case not out of contextto hold that the High Court modified its earlier order by directingthe alleged contemner to take into account the notional salarypayable to the respondent no.1’s husband on the date of hisretirement. The High Court merely directed the allegedcontemner to finalise the dues payable to the respondent no.1having regard to the salary that should have been payable to herhusband on the date of his retirement as Assistant Engineer, thepost to which he was admittedly promoted. The High Court didnot modify any earlier order. Nor did it expand the scope of any ABCD

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Aearlier order. The High Court only effectively enforced its earlierorder, which it was entitled in law to do. There is no ground at allto interfere with the judgment and order of the High Court underappeal. [Paras 20-23] [923-B-F]

CIVIL APPELLATE JURISDICTION: Civil Appeal No.9750 of B2010

From the Judgment and Order dated 30.05.2007 of the High Courtof Judicature at Patna in M.J.C. No. 2194 of 2005

Manish Kumar, Gopal Singh, Srikanth S. Advs. for the Appellants.

CVikramjeet Banerjee, ASG, Debal Banerjee, Sr. Adv., BankeyBihari, Kuldeep Sehrawat, Ajay Singh, Ms.Sunita Sharma, Ms. RuchiKohli, Ms. Anil Katiyar, Advs. for the Respondents.

The Judgment of the Court was delivered by INDIRA BANERJEE, J.D

1. This appeal, filed by the State of Bihar & Others, is against thejudgment and order dated 30.5.2007 passed by the High Court ofJudicature at Patna, disposing of the Contempt Application being MJCNo. 2194 of 2005, filed by the respondent no.1 with a direction to thecompetent authority to finalise the family pension due and payable to theErespondent no.1, taking into account the notional salary, which was payableto her husband on the date of his retirement, that is, 30.6.1995, as earlyas possible and in any case within three weeks from the date of receiptof a copy of the said order.

2. Shri Amardeo Tiwari, since deceased, husband of the respondentFno.1, was appointed Junior Engineer in the Public Works Department onor about 1.8.1958. He was promoted to the post of Temporary AssistantEngineer on ad hoc basis, vide departmental notification no. 5973 dated2.9.1981, which provided that the promotion would be effective fromthe date on which he would take charge in the promoted post.

3. By notification no. 9744 dated 20.12.1994, Sh. Amardeo Tiwari,since deceased, was given regular promotion to the post of AssistantEngineer w.e.f. 28.11.1979, with the approval of the Bihar Public ServiceCommission.

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4. Sh. Amardeo Tiwari, since deceased, retired from service onor about 30.6.1995, on attaining the age of retirement. Sh. AmardeoTiwari died on 30.5.2004. It appears that till his death, his retiral benefitshad not been determined or released.

5. On or about 20.09.2004, the respondent no.1, filed a writ petitionbeing CWJC No. 11497 of 2004 in the High Court praying for a directionon the concerned authorities to fix and pay the post-retiral benefits ofher late husband. Apart from the writ petition being CWJC No. 11497of 2004,many other similar writ petitions were filed praying for similarreliefs.

6. By a common judgment and order dated 21.9.2004, the HighCourt disposed of the writ petition being CJWC No. 11497 of 2004 filedby the respondent no.1, along with 20 other similar cases. The orderdated 21.9.2004 is set out herein below for convenience: -

“In all these writ petitions, the grievance of the Petitionersrelates to retrial sic retiral due/death-cum-retiral dues, which havenot been redressed even after filing of the writ petition.

However, having regard to the order dated 19.09.2003disposing of several writ petitions, bearing C.W.J.C No. 7054 of2003 and analogous cases by common order, this Court considersit expedient to dispose of these writ petitions also in terms of thedirections given in the said order, with only modification that twoparagraphs affidavit personally sworn by the concerned authoritymust be filed by 9th November, 2004. Parties will be bound by thesaid direction and they should proceed in the matter accordingly.”

7. Pursuant to the order dated 21.9.2004 in the writ petition CWJCNo. 11497 of 2004 filed by the respondent no.1, whereby the concernedauthorities were directed to fully redress the grievances of the petitioner,provisional pension and provisional gratuity were sanctioned to therespondent no.1 vide memo nos. 1167 and 1168 dated 6.11.2004 issuedby the Executive Engineer, National Highway Division, Chapra, Bihar.The memos reveal that provisional pension and gratuity were sanctionedon the basis that Sh. Amardeo Tiwari continued to be a Junior Engineer.

8. By a letter no. Pra-3/M-01/03-253E dated 10.2.2005, theEngineer-in-Chief-cum-Additional Secretary-cum-Special Secretary, A

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ARoad Construction Department, Patna, Bihar sanctioned cash paymentof unutilised earned leave of late Sh. Amardeo Tiwari. The said memoalso showed the designation of Sh. Amardeo Tiwari as retired JuniorEngineer.

9. On or about 29.8.2005, the respondent no.1 filed an applicationBfor contempt being MJC No. 2194 of 2005 for non-compliance by thealleged contemners of the order dated 21.9.2004 in CWJC No. 11497 of2004. After the aforesaid application for contempt was filed, theCommissioner and Secretary, Road Works Department, Patna, Biharpassed an order being Memo no. ..3/M-01/03-1908 (3) Patna dated24.2.2006. The relevant parts of the said memo are extractedChereinbelow: - “Late Shri Amardev Tiwari was in government service at thepost of junior engineer since 01.08.1958. As per service rules, hisservice in the form of junior engineer is verified till 29.02.1980.He was promoted to the post of Assistant Engineer in the yearD1980. It has been informed by Executive Engineer, National HighRoad Sub-division Chapra that late Shri Tivari did not contributeat the post of Assistant Engineer despite the order/direction in thisregard and remained absent in office, from 16.04.1980 to the dateof his retirement i.e. 30.06.1995, without prior permission fromEthe office. After the retirement, he died on 30.05.2004.

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Since late Tivari, after his promotion to the post of AssistantEngineer, has remained absent continuously from the office,without permission, for the period from 16.04.1980 to the date ofFhis retirement i.e. 30.06.95, therefore, service period of late Tivariwas under the salary of Junior Engineer. Hence, his pension shallbe fixed on the basis of the same. The question of pay fixationfor him in terms of salary for Assistant Engineer does not arisesince he has not contributed at the post of Assistant Engineer.”G10. On or about 15.01.2007, the respondent no. 1 filed the contempt

10. On or about 15.01.2007, the respondent no. 1 filed the contemptpetition being MJC No. 93/2007 complaining that the appellants hadwilfully disobeyed the directions contained in the judgment and orderdated 21.9.2004 of the High Court. In the proceedings initiated by therespondent no.1, the alleged contemners contended that the directions H

issued by the High Court on 21.9.2004 had duly been complied with.The High Court, however, passed the judgment and order impugned inthis appeal, directing the authorities concerned to finalise the familypension of the respondent no.1 taking into account the notional salarywhich was payable to her husband on the date of his retirement i.e.30.6.1995.

11. The appellants contend that by directing the alleged contemnersto finalise the family pension payable to the respondent no.1, on thebasis of the notional salary payable to the deceased husband of therespondent no.1 on the date of his retirement, the High Court modifiedthe original judgment and order in the writ petition, for violation of whichcontempt proceedings were initiated. The appellants also contendedthat, in terms of the provision of Rule 58(a) of the Bihar Service Code,subject to any exception specifically made in those rules and subject tothe provisions of clause (b) of Rule 58(a), a government servant is entitledto draw pay and allowances attached to his post w.e.f. the date on whichhe assumes duty in that post and ceases to draw such pay and allowancesas soon as he ceases to discharge those duties.

12. Mr. Vikramjeet Banerjee, ASG submitted that the High Courthad clearly erred in law by expanding the scope of the original order incontempt proceedings and also by overlooking Rule 58 as also Rule 76of the Bihar Service Code. Rule 58 provides that a government servant,after five years of continuous absence from duty, would cease to be ingovernment employment.

13. Significantly, no show cause notice was ever issued to Sh.Amardeo Tiwari, since deceased, during his lifetime alleging that he hadnot joined the duties pertaining to the post of Assistant Engineer or hadremained absent for a continuous period of five years. Continuousabsence of five years would most certainly have attracted disciplinaryproceedings. There were no disciplinary proceedings.

14. We are unable to accept the argument of the learned ASGthat the High Court modified or expanded the scope of the original orderin the writ proceedings in contempt. The concerned authorities weredirected to fully redress the grievances of the petitioner, and/or in otherwords, to release the retiral dues of late Sh. Amardeo Tiwari in full. Thedues necessarily had to be computed having regard to the salary and A

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Aallowances pertaining to the post which Sh. Amardeo Tiwari, sincedeceased, had held at the time of his retirement.

15. After the disposal of the writ petition, in the absence of anydisciplinary proceedings or show cause notice or other material, it is notopen to the authorities concerned to deny the respondent no.1 the benefitsBpertaining to the post to which her husband had been promoted, on thepurported ground that he had failed to join the post and had allegedlyremained absent from duties for a period of 13 years and 10 months.We cannot, but take notice of the fact that there were two orders ofpromotion, the first ad hoc, and the second, a regular promotion order, asper the list of dates filed by the appellants along with the appeal. The adChoc promotion has inadvertently and/or erroneously been referred to assubstantive promotion in the list of dates.

16. It is preposterous that a second order would have been issuedconfirming the promotion to the post of Assistant Engineer, if lateAmardeo Tiwari had not joined the post pursuant to the earlier order andDhad remained absent. Significantly, there is not a whisper of the exactdate from which lateAmardeo Tiwari allegedly stopped attending to hisduties and remained absent. It seems quite absurd that a person promotedon ad hoc basis, who had not been attending to his duties should bepromoted on regular basis. It is equally difficult to accept that a personEwho had been attending to his duties would suddenly stop attending tohis duties upon his promotion to a higher post.

17. In proceedings for contempt, the High Court is entitled to passorders for effective enforcement of an order of which violation is alleged.By the order dated 21.9.2004, the High Court directed the authorities toFfinalise the retiral dues on account of Shri Amardeo Tiwari, sincedeceased. The High Court directed release of the retiral dues of ShriAmardeo Tiwari, since deceased, in entirety and not in part.

18. As observed above, the authorities concerned did not finalisethe dues, but only sanctioned and/or released provisional gratuity andGprovisional pension and that too on the basis that Shri Amardeo Tiwari,since deceased, had continued to be a Junior Engineer as on the date ofhis retirement.

19. It was not open to the appellants to circumvent the orderpassed by the High Court and release provisional pension and gratuity H

and that too calculated in relation to the salary and emoluments of alower post.

20. The High Court, in effect and substance, found that the dueson account of Shri Amardeo Tiwari, since deceased, should be computedon the basis of the salary pertaining to the post of Assistant Engineer towhich Shri Amardeo Tiwari, since deceased, had admittedly beenpromoted. Unable to accept the belated plea of the contemner-respondents that Shri Amardeo Tiwari, since deceased, had remainedabsent, the High Court directed that the family pension be computedtaking into account the notional salary payable to an Assistant Engineeron the date of retirement, which was 30.6.1995.

21. Words and/or phrases in a judgment cannot be read as “Euclid’sTheorems” and in any case not out of context to hold that the HighCourt modified its earlier order by directing the alleged contemner totake into account the notional salary payable to the respondent no.1’shusband on the date of his retirement. The High Court merely directedthe alleged contemner to finalise the dues payable to the respondentno.1 having regard to the salary that should have been payable to herhusband on the date of his retirement as Assistant Engineer, the post towhich he was admittedly promoted.

22. In our view, the High Court did not modify any earlier order.Nor did the High Court expand the scope of any earlier order. The HighCourt only effectively enforced its earlier order, which it was entitled inlaw to do.

23. In view of the above, we find no ground at all to interfere withthe judgment and order of the High Court under appeal. Accordingly,the appeal is dismissed with no order as to costs.

Divya Pandey

Appeal dismissed.

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