Disposed

Kishor Manubhai Baraiya v. J B Kharadi

Gujarat HC6 Sept 2022MCA/462/2022

Case brief

AI extract

What is this about?

This matter, concerning contempt proceedings for alleged non-compliance with an order granting pay benefits, lists upon an undertaking filed by the respondents promising to extend the requisite pay commission benefits within two days. Consequently, the High Court of Gujarat closed the contempt proceedings, reserving liberty to the complainant to revive them if the undertaking is not fulfilled with

What did the court decide?

Contempt proceedings closed upon receipt of undertaking to comply with order within two days; liberty reserved to revive proceedings within one week.

Kishor Manubhai Baraiya Vs J B Kharadi — Writ and Judicial Review | Gujarat HC (2022)

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C/MCA/462/2022 ORDER DATED: 06/09/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/MISC. CIVIL APPLICATION NO. 462 of 2022

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R/SPECIAL CIVIL APPLICATION NO. 14371 of 2016

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KISHOR MANUBHAI BARAIYA Versus J B KHARADI

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Appearance:

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MR. MUKESH T MISHRA(5900) for the Applicant(s) No. 1 MS SEJAL K MANDAVIA(436) for the Opponent(s) No. 1,2

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CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR

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and HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

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Date : 06/09/2022

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ORAL ORDER

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(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

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1. We have heard Mr. Mukesh T. Mishra, learned counsel appearing for the Complainant and Ms. Sejal K. Mandavia, learned counsel appearing for contemnersrespondent Nos.1 and 2. Perused the case papers.

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2. This complaint under Section 12 of the Contempt of Courts Act, 1971 is made by petitioner /writ applicant in Special Civil Application No.14371 of 2016 inter alia contending that order passed in said writ application on 7.12.2021 has been willfully disobeyed by respondents.

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Page 1 of 6

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C/MCA/462/2022 ORDER DATED: 06/09/2022

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3. Respondent No.2 on being notified has appeared and filed reply by way of affidavit dated 5.9.2022 contending inter alia that on 26.7.2022, a sum of Rs.9,59,769/- has been paid by virtue of the order passed on the said date and now, an amended order has been passed on 3.9.2022, where-under remaining amount of Rs.23,600/- has been paid after calculating income tax and deducting the same, and as such it is contended by 2^nd respondent that there is due compliance of the order and has prayed for dropping the contempt proceedings.

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4. Per contra , Mr. Mukesh Mishra, learned counsel appearing for the complainant would contend that direction issued by the learned Single Judge in the aforesaid Special Civil Application has not been complied in toto or in full and has sought for charges being framed against contemners.

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5. Having learned advocates appearing for the parties, we are of the considered view that following points would arise for our consideration:

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“Whether contempt proceedings should be proceeded further by framing charge or it is to be dropped on the ground of order dated 7.12.2021 passed in Special Civil Application No.14371 of

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Page 2 of 6

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C/MCA/462/2022 ORDER DATED: 06/09/2022

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2016 has been complied.”

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DISCUSSION AND FINDING :

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6. In order to answer the points formulated hereinabove, we are of the considered view, it would be an apt and appropriate that order which has been passed by the learned Single Judge, which is now alleged to have been willfully disobeyed by the respondents requires to be extracted and it is extracted herein-below:

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“[11] Thus, it is not open for the respondent Board to contend that the Government Resolution dated 17.10.1988 is not applicable to the daily wagers appointed by the respondent Board. Such stand is illegal, illconceived and contrary to the facts recorded by this Court in the aforenoted judgments. The Communications dated 09.06.2016 and 21.05.2016 are hereby quashed and set aside. The respondent authorities including the State Government cannot recant from the facts as narrated and recorded by this Court that all the dailywagers, who had approached this Court claiming benefits of 6th and 7th Pay Commission have been extended benefits of Government Resolution dated 17.10.1988 and accordingly, their Pay Scale were also fixed.

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[12] Under the circumstances, the respondents are directed to extend the benefits of Government Resolution dated 17.10.1988 to the petitioner and his pay shall be accordingly fixed after completion of 5,10 and 15 years of service. Necessary order to that effect shall be passed within a period of three months from the date of receipt of the writ of the order of this Court.”

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7. A plain reading of the above order would indicate

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that contention of the respondent Board before the learned

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Page 3 of 6

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C/MCA/462/2022 ORDER DATED: 06/09/2022

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Single Judge was to the effect that Government Resolution dated 17.10.1988 is inapplicable to daily wagers appointed by the Board and said contentions came to be rejected as illegal, ill-conceived and contrary to the facts. Having quashed the impugned communications dated 9.6.2016 and 21.5.2016, respondent authorities, including State Government had upheld the contention of the petitioner that all daily wagers who had approached the Court, have to be extended the benefit of Government Resolution dated 17.10.1988 including the benefits of 6^th and 7^th Pay Commission and accordingly, their pay scales were also ordered to be fixed and directed the respondents to extend the benefits of Government Resolution dated 17.10.1988 after completion of 5, 10 and 15 years of service.

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8. It is no-doubt true that under the order dated 26.7.2022, pay was fixed by reckoning the completed period of 5 years, 10 years and 15 years of service and accordingly, a sum of Rs.9,59,769/- was paid to petitioner. However, benefit of 6^th and 7^th Pay Commission undisputedly has not been extended, particularly when 5^th Pay Commission benefit has been extended and learned Single Judge having specifically and emphatically

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Page 4 of 6

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C/MCA/462/2022 ORDER DATED: 06/09/2022

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discarded the contention now raised and held that the respondent is duty bound to extend 6^th and 7^th Pay Commission benefits, respondents now in contempt proceedings cannot reagitate this issue or cannot stave off its liability. Having regard to the fact that undisputedly, 6^th and 7^th Pay Commission benefits having not been extended to the petitioner, as ordered by the learned Single Judge, we are of the considered view that arguments canvassed on behalf of learned counsel appearing for the respondent- contemners deserve to be considered for the purpose of outright rejection and accordingly we reject the said contention.

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9. Hence, we are of the considered view that this is a fit case for framing of the charges.

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10. At this juncture, learned counsel appearing for the respondents submits that an affidavit by the contemners would be filed at 2.30 p.m. undertaking to comply with the order of the learned Single Judge.

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11. Placing their submissions on record, this matter is directed to be called out at 2.30 p.m.

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Page 5 of 6

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C/MCA/462/2022 ORDER DATED: 06/09/2022

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12. The matter has been called out at 2:30 p.m.. Contemners have filed a joint affidavit undertaking thereunder to extend the benefits of 6^th and 7^th Pay Commission to the petitioners within two days. Placing the said undertaking on record, we CLOSE contempt proceedings reserving liberty to complainant to revive this contempt proceedings in the event of such order not being passed and benefits not being granted, within one week from today.

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Sd/(ARAVIND KUMAR,CJ)

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Sd/(ASHUTOSH J. SHASTRI, J)

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OMKAR

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Page 6 of 6

Kishor Manubhai Baraiya v. J B Kharadi

Case brief

What is this about?

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Kishor Manubhai Baraiya v. J B Kharadi

Case brief

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What did the court decide?

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