Allowed

Amitav Thakur @ Amitabh Thakur, Ips. v. Dukhishyam Hotta

Orissa HC9 May 2024WA/178/2024

Case brief

AI extract

What is this about?

The High Court held that the writ appeal was maintainable against the Single Judge's order in a contempt proceeding which made a substantive direction on the merits, amounting to judicial review. The Court set aside the direction requiring reconsideration, holding it impermissible within contempt jurisdiction.

What did the court decide?

Impugned order dated 24.11.2023 is set aside to the extent it rejected the appellant's order dated 18.09.2023.

Amitav Thakur @ Amitabh Thakur, Ips. Vs… — Labour and Industrial Disputes | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.A. No.178 of 2024

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…. (1) Sri Amitav Thakur @ Amitabh Appellants Thakur, IPS, The Transport Commissioner-Cum-Chairman, State Transport Authority, Odisha, Cuttack.

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(2) Sri Indramani Nayak, Addl. Commissioner, Transport (Admn), At/PO/Dist-Cuttack.

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(3) Manas Ranjan Sahoo, RTO, Ganjam, At/P.O. Chhatrapur, Dist-Ganjam.

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-versus…. Dukhishyam Hotta Respondent Advocates appeared in the case For Appellants : Mr. Pravakar Behera, Standing Counsel For Respondent : Mr. Krishna Chandra Sahu, Advocate CORAM: THE CHIEF JUSTICE MR. JUSTICE MURAHARI SRI RAMAN

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JUDGMENT

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09.05.2024

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Chakradhari Sharan Singh, CJ.

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This intra-Court appeal arises out of a contempt proceeding putting to challenge an order dated 24.11.2023 passed by the learned Single Judge of this Court in CONTC No.7275 of 2023.

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We have heard Mr. Pravakar Behera, learned Standing Counsel for the appellants and Mr. Krishna Chandra Sahu, learned counsel for the sole respondent.

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It would be apt to notice relevant foundational facts leading to filing of the present intra-Court appeal.

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The respondent herein had joined as a Junior Store Keeper, initially under the administrative control of the Department of Commerce and Transport, Government of Odisha. When he was working as such at the Gopalpur Port Project, under a decision of the State Government, Gopalpur Port was privatized. Consequent upon such privatization, the employees who had become surplus were redeployed to their parent administrative department.

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According to the respondent, he was relieved vide letter dated 28.10.2006 whereafter he reported before the Transport Commissioner, Odisha and was posted as Junior Clerk in the Office of RTO, Ganjam in the same grade in which he was initially appointed as Junior Store Keeper. On a plea that he had completed 25 years of service on 16.01.2009 without getting any promotion to the next higher rank, he claimed his entitlement to get benefit of 2^nd ACP (Assured Career Progression) with effect from 17.01.2009 in accordance with Rule 14 of the Orissa Revised Scales of Pay (ORSP) Rules, 1998. Further, relying on a resolution of the Finance Department dated 06.02.2013, the respondent also claimed his entitlement to get RACP benefit with effect from 01.01.2013. He thus claimed three financial up-gradation after completion of 10years/20years/30 years of service from the date of his initial entry

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W.A. No.178 of 2024 Page

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into the service in a single cadre in the absence of any promotion. Raising a grievance that he was not being extended the benefits of ACP/RACP as per rules and Finance Department Resolution, the respondent approached the Odisha Administrative Tribunal (Tribunal) by filing an original application giving rise to OA No.616(C) of 2019. The Tribunal disposed of the said O.A. No.616 (C) of 2019 by an order dated 24.07.2019 with a direction to opposite parties therein to consider the respondent’s representation within a period of two months. As the said order of the Tribunal was not complied with, the respondent approached this Court by filing a writ petition registered as W.P.(C) No.3544 of 2020 for implementation of the said order. The said writ petition came to be disposed of by an order dated 07.02.2020 directing opposite party No.1 therein to consider the respondent’s representation within a period of one and half months from the date of communication of the order. The respondent filed CONTC No.3983 of 2020 alleging disobedience of this Court’s order. The said CONTC No.3983 of 2020 was disposed of by an order dated 04.12.2020 granting further three months time to implement this Court’s order as well as the order passed by the Tribunal. Later, the Transport Commissionercum-Chairman, State Transport Authority, Odisha (appellant No.1 herein) rejected the respondent’s claim for grant of ACP/RACP by an order dated 01.10.2021.

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The said order dated 01.10.2021 was put to challenge by the respondent in W.P.(C) No.34597 of 2021 filed under Article 226 of the Constitution. The learned Single Judge of this Court after having addressed the factual aspects, disposed of W.P.(C)

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No.34597 of 2021 by an order dated 08.02.2023. While quashing the said order dated 01.10.2021 passed by appellant No.1, learned Single Judge observed in paragraph-12 as under:

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“12. Having heard learned counsel for the parties and upon a careful consideration of the rival contentions raised and further a conspectus of the materials placed before this Court for consideration, this Court after going through the impugned order dated 01.10.2021 under Annexure-12 is of the view that while rejecting the claim of the Petitioner the Resolution of the Finance Department dated 17.01.2015 under Annexure-13 has not been taken into consideration. Moreover, it is also observed by this Court that the Petitioner entered into the service initially on 17.01.1984 and was posted as a Junior Store Keeper in Gopalpur Port Project which was then under the administrative control of Commerce & Transport Department, Government of Odisha. Since the Gopalpur Port Project was privatized in the year 2006, the Petitioner being a surplus employee was reverted and redeployed in the Office of the R.T.O., Ganjam as Junior Clerk. Such redeployment, as it appears within the same cadre, same rank and same pay scale. Therefore, the Petitioner continued as Junior Clerk in the Office of the R.T.O., Ganjam. Although there was a change in the cadre, however, the same has happened as a result of privatization of Gopalpur Port Trust by the Government of Odisha. Therefore this Court is of the considered view that the change of cadre was neither with the consent of the Petitioner nor the same was under his control. The situation was so that the Petitioner was reverted and redeployed in the administrative department. In such view of the matter this Court is also of the view that the case of the Petitioner is covered under the Resolution dated 17.01.2015 under Annexure-13 and accordingly the authorities should have considered the case of the Petitioner by taking into consideration the Resolution dated 17.01.2015. Further, the impugned rejection order does not reveal that while rejecting the claim of the

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Petitioner the aforesaid Resolution dated 17.01.2015 has been taken into consideration. In such view of the matter, this Court is also of the considered view that the impugned order dated 01.10.2021 under Annexure-12 is unsustainable in law and as such the same is liable to be quashed and the same is hereby quashed.”

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After having done so, the learned Single Judge issued following direction as contained in paragraph-13 of the order dated 08.02.2023:

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“13. Further, the Opposite Party No.3 is directed to reconsider the matter taking into consideration the Resolution of the Finance Department, Government of Odisha dated 17.01.2015 under Annexure-13 within a period of six weeks from the date of production of certified copy of this order. In the event it is found that the Petitioner is covered under the Resolution dated 17.01.2015 then the benefit as is due and admissible to the Petitioner be extended to the Petitioner by keeping in view the Resolution dated 06.02.2013 with effect from 01.01.2013 within a period of four weeks thereafter. Accordingly, it is also directed that in the event the benefits under Annexure-13 read with the Finance Department Resolution dated 06.02.2013 are extended in favour of the Petitioner, the arrear dues as well as revised scale of pay and the revised pensionary benefit as well as all other consequential benefits be extended in favor of the Petitioner within the aforesaid time limit.”

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Alleging non-compliance of the order dated 08.02.2023, the respondent filed a contempt application giving rise to CONTC No.7275 of 2023. In the said contempt proceeding, a compliance affidavit was filed on behalf of the appellants who were the contemnors in the said contempt proceeding enclosing a copy of the speaking order dated 18.09.2023 passed by the appellant No.1, said

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to be in compliance of this Court’s order dated 08.02.2023 passed in W.P.(C) No.34597 of 2021. In the said contempt proceeding, the learned Single Judge has passed an order on 24.11.2023 rejecting the order dated 18.09.2023 passed by appellant No.1 on the ground that the same was not in consonance with the order dated 08.02.2023. Learned Single Judge has noted in the order dated 24.11.2023 that there was a clear finding that the respondent’s case was covered by the resolution dated 17.01.2015 (Annexure-13 to the writ petition). Learned Single Judge opined in the order dated 24.11.2023 that the said order dated 18.09.2023 was passed by appellant No.1 as if he was an appellate authority of the Court. Learned Single Judge, however, by the said order dated 24.11.2023 granted four weeks’ further to comply with the order dated 08.02.2023. The said order dated 24.11.2023 passed by the learned Single Judge has been assailed in the present intra-Court appeal.

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Assailing the impugned order, it has been argued by Mr. Pravakar Behera, learned Standing Counsel appearing for the appellants that the direction which has been issued in the order dated 24.11.2023 after rejecting the order of appellant No.1 dated 18.09.2023 is in the nature of direction issued in writ jurisdiction and therefore, this writ appeal against an order passed in a contempt proceeding is maintainable, though that is not a final order. He has placed reliance on the Supreme Court’s decision in case of Midnapore Peoples’ Coop. Bank Ltd. and others v. Chunilal Nanda and others [ (2006) 5 SCC 399]. Reliance has also been placed on a Division Bench decision of the Allahabad High Court in case of Vinod Kumar Sharma v. Shiv Mohan Dwivedi [AIR

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ONLINE 2020 ALL 239] . He has also submitted that learned Single Judge has re-exercised the power of judicial review in a contempt proceeding which is impermissible. In support of the said submission, he has relied on the following Supreme Court’s decisions:

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(i) J.S. Parihar v. Ganpat Duggar and others [(1996) 6 SCC 291] ;

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(ii) Jhareswar Prasad Paul and another v. Tarak Nath Ganguly and others [(2002) 5 SCC 352] ;

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(iii) Director of Education, Uttaranchal and others v. Ved Prakash Joshi and others [(2005) 6 SCC 98] and;

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(iv) Lalith Mathur v. L. Maheswara Rao [(2000) 10 SCC 285 ]

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He has argued that once the learned Single Judge directed the appellants by order dated 08.02.2023 passed in W.P.(C) No.34597 of 2021 to reconsider the matter taking into consideration the resolution of the Finance Department, Government of Odisha dated 17.01.2015, learned Single Judge ought not to have rejected the reasoned order passed by appellant No.1 dated 18.09.2023 in a contempt proceeding on the ground that the respondent’s case was covered by resolution dated 17.01.2015. It has been argued that by the said order dated 08.02.2023, learned Single Judge had permitted appellant No.1 to reconsider the matter and to find out whether the case of the respondent was covered under the resolution dated 17.01.2015 or not. In such view of the matter, the legality of the order dated 18.09.2023 passed by appellant No.1 on the point as to

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whether the resolution dated 17.01.2015 was applicable or not ought not to have been gone into by the learned Single Judge in a contempt proceeding.

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Mr. Krishna Chandra Sahu, learned counsel appearing for the respondent has on the other hand submitted that in the order dated 08.02.2023 passed by the learned Single Judge, it was specifically held that the case of the respondent was covered under resolution dated 17.01.2015 and by refusing to consider the respondent’s case in accordance with the resolution dated 17.01.2015, appellant No.1 has willfully disobeyed this Court’s order passed by the learned Single Judge. He submits that the aforesaid impugned order passed by the learned Single Judge does not suffer from any legal infirmity. He has also argued that this intra-Court appeal against an interim order passed in a contempt proceeding by the learned Single Judge is not maintainable.

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We are of the view, however, that an intra-Court appeal is maintainable against order if such order amounts to making a direction relating to the merits of the dispute. In contempt proceeding, as laid down by the Supreme Court in case of Midnapore Peoples’ Coop. Bank Ltd. (supra) wherein it has been laid down in paragraph-11 (V) which reads thus:

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V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-

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court appeal (if the order was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases).”

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It is also a settled legal position that interim orders/interlocutory orders passed during the pendency of a case which finally decide a question or issue in controversy in the main case or which finally decide the issue which materially and directly affects the final decision in the main case are treated as the judgments for the purpose of filing of appeal under the Letters Patent. It would be beneficial to reproduce paragraphs-15 and 16 of the Supreme Court’s decision in case of Midnapore Peoples’ Coop. Bank Ltd. (supra) enunciating the said proposition of law:-

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“15. Interim orders/interlocutory orders passed during the pendency of a case, fall under one or the other of the following categories:

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(i) Orders which finally decide a question or issue in controversy in the main case.

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(ii) Orders which finally decide an issue which materially and directly affects the final decision in the main case.

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(iii) Orders which finally decide a collateral issue or question which is not the subject-matter of the main case.

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(iv) Routine orders which are passed to facilitate the progress of the case till its culmination in the final judgment.

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(v) Orders which may cause some inconvenience or some prejudice to a party, but which do not finally determine the rights and obligations of the parties.

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W.A. No.178 of 2024 Page 9 of 15

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16. The term “judgment” occurring in clause 15 of the Letters Patent will take into its fold not only the judgments as defined in Section 2(9) CPC and orders enumerated in Order 43 Rule 1 CPC, but also other orders which, though may not finally and conclusively determine the rights of parties with regard to all or any matters in controversy, may have finality in regard to some collateral matter, which will affect the vital and valuable rights and obligations of the parties. Interlocutory orders which fall under categories (i) to (iii) above, are, therefore, “judgments” for the purpose of filing appeals under the Letters Patent. On the other hand, orders falling under categories (iv) and (v) are not “judgments” for the purpose of filing appeals provided under the Letters Patent.”

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In case J.S. Parihar (supra) , the controversy related to preparation of seniority list of the Engineers of Rajasthan Civil Engineering Services. A Division Bench of High Court of Rajasthan had declared the seniority list, prepared with retrospective effect in terms of the amended rules, as unconstitutional and while quashing the said list had directed preparation of the seniority list afresh to determine the inter se seniority on that basis and to grant promotion to the appellants therein within the specified time. The contempt proceedings were initiated under Section 12 of the Contempt of Courts Act, 1971 upon preparation of the seniority list. The contempt proceeding came to be disposed of by a learned Single Judge of Rajasthan High Court with an observation that it appeared quite just and reasonable that the contemnors did not intend to disobey the direction issued by the Court. However, the contemnors were directed to comply with the order of the Court by giving effect to the ratio of the decision that had been rendered by a Division Bench. Learned

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Single Judge issued specific direction to prepare seniority list in a particular manner and accord promotions accordingly. On an appeal preferred against the said direction of the learned Single Judge, a Division Bench of Rajasthan High Court held the appeal under Section 19 of the Contempt of Courts Act, 1971 not maintainable. The Division Bench however held that the appeal would be maintainable as Letters Patent Appeal as the direction issued by the learned Single Judge would be a judgment within the meaning of Section 18 of the Rajasthan High Court Ordinance. The Division Bench set aside the direction issued by the learned Single Judge which was put to challenge before the Supreme Court. It was contended before the Supreme Court that unless the learned Single Judge had entered into the correctness of the decision taken by the contemnor in preparation of seniority list in the light of the law laid down by the three Judge Bench, the learned Single Judge could not have come to a conclusion whether or not the contemnor had willfully or deliberately disobeyed the orders of the Court and therefore the learned Single Judge had necessarily to go into the merits of that question. Rejecting the said contention, the Supreme Court in J.S. Parihar (supra) held in paragraphs-6 as under:

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We do not find that the contention is well founded. It is seen that, admittedly, the respondents had prepared the seniority list on 2-7-1991. Subsequently promotions came to be made. The question is whether seniority list is open to review in the contempt proceedings to find out whether it is in conformity with the directions issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by the court, there arises a fresh cause of action

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to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the wilful violation of the order. After re-exercising the judicial review in contempt proceedings, a fresh direction by the learned Single Judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act. Therefore, the Division Bench has exercised the power under Section 18 of the Rajasthan High Court Ordinance being a judgment or order of the Single Judge; the Division Bench corrected the mistake committed by the learned Single Judge.”

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In case of Jhareswar Prasad Paul (supra) , the Supreme Court has reiterated that a Court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party, which alleged to have committed deliberate default in complying with the directions in the judgment or order. If the judgment or order does not contain any specific direction regarding a matter or if there is any ambiguity in the direction issued therein, then it will be better to direct the parties to approach the Court which disposed of the matter for clarification of the order instead of the Court exercising contempt jurisdiction taking upon itself a power to decide the original proceeding in a manner not dealt with by any Court passing the judgment or order. The Supreme Court observed in paragraph-11 in Jhareswar Prasad Paul (supra) as under:

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11. xxx

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xxx xxx

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If this limitation is borne in mind then criticisms which are sometimes levelled against the courts exercising contempt of court jurisdiction “that it has exceeded its powers in granting substantive relief and issuing a direction regarding the same without proper adjudication of the dispute” in its entirety can be avoided. This will also avoid multiplicity of proceedings because the party which is prejudicially affected by the judgment or order passed in the contempt proceeding and granting relief and issuing fresh directions is likely to challenge that order and that may give rise to another round of litigation arising from a proceeding which is intended to maintain the majesty and image of courts.”

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In case of Ved Prakash Joshi (supra), it has been held that while dealing with an application for contempt, the Court cannot traverse beyond the order, non-compliance of which is alleged. In other words, it cannot say what should not have been done or what should have been done.

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At this juncture, we need to notice the order which was passed by the learned Single Judge on 08.02.2023 in W.P.(C) No.34597 of 2021, paragraphs-12 and 13 of which have been quoted hereinabove.

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Learned Single Judge held that while rejecting the respondent’s claim by the order dated 01.10.2021, the resolution of the Finance Department dated 17.01.2015 had not been taken into consideration. In the same paragraph, learned Single Judge further opined that the case of the petitioner was covered under the resolution dated 17.01.2015 and accordingly, the authority should have considered the case of the respondent by taking into

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consideration the resolution dated 17.01.2015. Learned Single Judge further held that the impugned rejection order dated 01.10.2021 did not reveal as to whether the resolution dated 17.01.2015 had been taken into consideration. In the operative portion of the order dated 08.02.2023, learned Single Judge directed appellant No.1 to reconsider the matter taking into consideration the said resolution of the Finance Department dated 17.01.2015. The learned Single Judge further observed in paragraph-13 as under, which, at the cost of repetition, being reproduced:-

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“In the event it is found that the Petitioner is covered under the Resolution dated 17.01.2015, then the benefit as is due and admissible to the Petitioner be extended to the Petitioner by keeping in view the Resolution dated 06.02.2013 with effect from 01.01.2013 within a period of four weeks thereafter”.

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The aforesaid observation made in paragraph-13 of the order dated 08.02.2023 permitted appellant No.1 to go into the question as to whether the respondent was covered under resolution dated 17.01.2015 or not. In compliance of the aforesaid order dated 08.02.2023 passed in W.P.(C) No.34597 of 2021, the case of the respondent was considered. He was found to have been given promotion to Senior Clerk with effect from 26.01.2019 and had availed TBA on 17.01.1999 and 1^st MACP with effect from 10.11.2016. Based on the outcome of review conducted by Screening Committee, appellant No.1 concluded that the respondent was not entitled to 2^nd RACP as per the resolutions and letters of the Finance Department issued in this regard.

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In the aforesaid background, we find force in the submission advanced on behalf of the appellants that it was not permissible for the learned Single Judge in a contempt proceeding to have entered into the correctness of the said decision of appellant No.1. Passing of the subsequent order by appellant No.1 is a subsequent cause of action which could be questioned before the appropriate forum as has been noted in three Judge Bench decision of the Supreme Court in case of J.S. Parihar (supra) .

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In such view of the matter, the present appeal succeeds. The impugned order dated 24.11.2023 passed by the learned Single Judge in CONTC No.7275 of 2023 to the extent it has rejected the order dated 18.09.2023 passed by appellant No.1 is set aside.

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This writ appeal is accordingly allowed. There shall be no order as to costs.

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(Chakradhari Sharan Singh)

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Chief Justice

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Mr. M.S. Raman, J. I agree.

(M.S. Raman)

Judge

S.K. Guin/P.A.

Signature Not Verified

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Digitally Signed Signed by: SUMANTA BEHERA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-May-2024 18:19:01

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W.A. No.178 of 2024 Page 15 of 15

Amitav Thakur @ Amitabh Thakur, Ips. v. Dukhishyam Hotta

Case brief

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Amitav Thakur @ Amitabh Thakur, Ips. v. Dukhishyam Hotta

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