IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CONTEMPT PETITION NO. 281 OF 2007 IN WRIT PETITION NO. 159 OF 2007 MAHARASHTRA STATE JUDICIAL BAILIFFS’ EMPLOYEES CONFEDERATION ..PETITIONER V/S REGISTRAR GENERAL, HIGH COURT OF JUDICATURE AT BOMBAY & ORS. ..RESPONDENTS MR. V.P. PATIL, ADVOCATE, FOR THE PETITIONER. MR. A.A. KUMBHAKONI, ASSOCIATE ADVOCATE GENERAL WITH MR. D.A. PATIL AGP, FOR RESPONDENT NOS.1 TO 7. CORAM: J.H. BHATIA, J. CORAM: J.H. BHATIA, J. CORAM: J.H. BHATIA, J. DATE : 4TH APRIL, 2008. DATE : 4TH APRIL, 2008. DATE : 4TH APRIL, 2008. P.C. 1. Heard learned counsel for the parties and perused the relevant record. 2. The Petitioner had filed Writ Petition No. 4929 of 2006 before the Nagpur Bench of this High Court against 5 Respondents. Respondent No. 1 is Registrar General of the High Court, Respondent No. 5 is the Accountant General and Respondent Nos. 2 to 4 are the State of : 2 : Maharashtra represented by the Secretaries of different departments. It appears that as per the 5th Pay Commission Report, the pay of bailiffs and head bailiffs working in the subordinate judiciary in the State of Maharashtra was fixed in the pay scale of Rs. 3050-4590. However head bailiff was to get special pay of Rs. 150/-. There was also a scheme known as "Assured Career Promotion Scheme" proposed by the Central Government and it was adopted by the Government of Maharashtra as the "Time Bound Promotion Benefit Scheme" applicable to the Government employees in the State of Maharashtra. Under that scheme, if the employee of particular category had put in more than 12 years of service but inspite of being eligible for promotion could not get the promotion for want of vacancies, he would be entitled to the pay scale of the promotional post. A large number of bailiffs working in different courts in State of Maharashtra had put in 12 years of service but could not get promotion to the post of head bailiff for want of sufficient vacancies and under the said scheme, they would be entitled to pay scale applicable to the head bailiffs. It appears that in some of the districts, while implementing the said scheme in respect of bailiffs, instead of giving pay scale Rs. 3050-4590 with special pay Rs. 150/-, the pay of such bailiffs was fixed in the scale of : 3 : Rs. 4000-6000 and accordingly the payment was made. When it was brought to the notice of the District Court that head bailiffs were not entitled to pay scale of Rs. 4000-6000, the petitioner filed above referred writ petition mainly for two purposes. First prayer is to bring parity in the pay scale of the bailiffs working in the Bombay City and the bailiffs working in the mofussil area. The second prayer is that under the "Time Bound Promotion Scheme" the bailiffs should be entitled to the pay scale of Rs. 4000-6000 and not Rs. 3050-4590 with special pay. A prayer was made to restrain the Respondents from making recovery of the payment already made to such bailiffs in the pay scale of Rs. 4000-6000, as per the letter dated 17-8-2006. 3. The writ petition was filed on 29-9-2006. On the same day matter was placed before the Division Bench of this court at Nagpur Bench and following order was passed:- "Heard Mr. S.P. Dharmadhikari, learned counsel for the Petitioner. Notice, returnable after two weeks. Mrs. Jog, learned Assistant Government Pleader waives notice on behalf of the Respondents. : 4 : In the meantime, the parties are directed to maintain status quo, until further orders." In view of this, the parties were directed to maintain status quo until further orders. According to the petitioner, this order was communicated to all the District Courts by the High Court. However, inspite of the knowledge of this order, the Respondent No. 6 the Senior Accounts Officer in the office of Accountant General issued gratuity payment order in respect of 2 bailiffs namely Shri Keru Govind Sawant and Shri Vishwanath Shripat Keer and in the said orders he had also showed the amount of Rs. 98,596/- and Rs. 1,32,725/- respectively as recovery from the said employees on account of over payment of pay and allowances. These orders were issued on 28-2-2006 and 31-5-2007. Both these orders were placed before the Respondent No. 7, who was the Principal District Judge, Ratnagiri, for directions and the Respondent No. 7 forwarded the said orders to the Assistant Superintendent (Cash), District Court for necessary action and directed him to draw the amount of gratuity and also to recover the excess payment made earlier by endorsement dated 1-6-2007 and 9-7-2007 respectively. In view of these orders, the contempt petition came to : 5 : be filed. It is contended by the petitioner that inspite of the status quo order passed by the Division Bench of this court on 29-9-2006, respondent no. 6 had issued directions for recovery of over payment and the respondent no. 7 had given directions to his staff to recover that amount from the above referred 2 employees. 4. The respondent nos. 1 to 5 in the contempt petition were the respondents in the writ petition. The contempt petition is actually directed against the respondent nos. 6 and 7 only. 5. By his affidavit-in-reply, the respondent no. 6 Mr. K. Rajamohanan Nair, Accounts Officer in the office of the Accountant General (A & E)-I tendered an unconditional apology if this court comes to the conclusion that he had committed any contempt. According to him the gratuity payment orders were issued in respect of 2 bailiffs on the basis of the papers submitted by the concerned department, i.e., the District Court at Ratnagiri and in those papers the over payment was shown and accordingly that was also shown in gratuity payment orders issued by him in respect of these 2 employees. According to him in view of these circumstances neither he nor respondent no. 5 the office of Accountant General has committed any contempt of this court. : 6 : 6. In his affidavit-in-reply dated 28th August 2007 the respondent no. 7 has at the outset tendered an unconditional and unqualified apology expressing that he has highest regard for the orders passed by the Hon’ble High Court. In para 2 of the affidavit he has explained that the office of the District Court, Ratnagiri, had received the order but due to sheer inadvertance, it was not brought to his notice which resulted in passing the order in question. He also tendered apology for this inadvertant lapse on the part of his office and explained that there was no intention to disobey the orders passed by the High Court. He explained that Shri Keru Govind Sawant had applied for pension on 8-2-2006 while Shri Vishwanath Shripat Keer had made similar application on 30-11-2006 and even in the application of Vishwanath Shripat Keer there was no mention of the status quo order. Due to human error the status quo order was not noticed. His pension papers were submitted to the office of the Accountant General and the gratuity payment orders were received. He admits that order passed by the Division Bench of the High Court at Nagpur Bench on 29-9-2006 was received in the District Court on 9-10-2006. Thus it was received after the pension papers of Keru Govind Sawant was processed but before the papers of Vishwanath Shripat Keer were processed. As stated earlier in the affidavit, due to : 7 : inadvertance and due to the human error the orders were passed by him on the said gratuity payment orders received from the office of the accountant general. 7. After submission of the affidavit dated 28th August 2007 by respondent no. 7, a rejoinder came to be filed by one Gulab Dagduji Rathod on behalf of the petitioner. In that rejoinder he contended that the statement in the affidavit of the District Judge, that due to sheer inadvertance the High Court order was not brought to his notice, is not correct. He contended that on 15-12-2006 a meeting of the Staff Co-ordination Committee with the District Judge/Respondent No. 7 had taken place and in that meeting subject No. 5 was to release the increment to bailiffs who had been given promotional scale and in response to that subject, the District Judge had informed that as per the orders of the High Court, Bombay (Nagpur Bench) there is status quo order in respect of the revised pay scale of the bailiffs and the subject is under consideration of the High Court and, therefore, the revised pay could not be granted. It is contended that in view of this, it is clear that the District Judge was aware of the status quo order and that the apology tendered by him is not sincere. 8. After the said rejoinder, the Respondent No. 7 : 8 : filed additional affidavit dated 11th December 2007. In this additional affidavit, while reiterating the unconditional apology for acts of commission and omission alleged against him, he categorically stated that this additional affidavit was being filed not by way of justification of the alleged acts of commission and omission but only by way of clarification in that regard. In the latter part of this additional affidavit he clarified that prior to the meeting dated 15-12-2006, the President, Nyayalain Karmachari (Class III) Sanghatana, Ratnagiri, had submitted an agenda to the District Judge and it contained the points to be discussed in that meeting. The agenda did not contain subject about the release of the increments in the revised pay scale of the bailiffs under the said scheme. According to him on verification of the record, he found that his signature was there only on the first sheet, showing the persons who were present in the meeting but minutes of the meeting were not signed by him. He pointed out that as per the record the subjects which were on the agenda were discussed and later on some subjects were raised on behalf of bailiffs and subject no. 5 referred to by the petitioner was one of them and was not in the original agenda. The certified copy of the said attendance sheet and the subject is also produced before the court. He has also pointed out in : 9 : para 4 that after the pay verification unit had raised objection to the fixation of the pension of head bailiff Shri A.S. Amrute in the pay scale of Rs. 4000-6000 and his pension papers were returned, Shri K.G. Sawant and Shri Vishwanath Shripat Keer, while submitting their pension papers had specifically requested that their pension should be fixed in the old scale immediately and therefore the papers were submitted to the office of A.G. accordingly. He reiterated that even though the High Court order was received in the District Court’s office due to sheer inadvertance it was not brought to his notice, which resulted in passing of the order in question. 9. Admittedly there was a controversy about the grant of particular scale to the head bailiffs and in most of the districts the pay of head bailiff was fixed in the pay scale of Rs. 4000-6000 and the same pay was given to the bailiffs, who were given benefit of the Time Bound Promotion Scheme. Admittedly on 17-8-2006 the Govt. of Maharashtra, Law and Judiciary Department addressed a letter to the Registrar, High Court, Appellate Side, pointing out that the head bailiff should not be given the pay scale of Rs.4000-6000 but should be given the pay scale of 3050-4590 with speccial pay. When these orders were received, the petitioner : 10 : immediately filed the Writ Petition before the High Court at Nagpur Bench wherein the status quo order was passed. Admittedly later on the said Writ Petition was transferred to the High Court at Bombay and has been re-registered as W.P. No. 159 of 2007. It is also admitted fact that the status quo order passed by the Nagpur Bench on 29-9-2006 was ad interim order and after hearing the parties the status quo order was vacated by the Division Bench at Bombay on 28-2-2008, while admitting the petition. The petition is still pending. It indicates that on hearing the parties, the Division Bench of this court came to the conclusion that the status quo order was not necessary. Whether the head bailiffs should be granted pay scale of Rs. 4000-6000 or whether the bailiffs in Mofusil should be given pay scale equivalent to the scale applicable to the bailiffs in Bombay is a question which is to be decided at the time of final hearing and disposal of the writ petition. In view of the vacation of the status quo order, it may be stated that whatever over payment was made to the head bailiffs by fixing their pay in the pay scale of Rs. 4000-6000 may be required to be recovered or adjusted. The Govt. of Maharashtra has taken a stand that as per the pay scale approved by the Govt. of Maharashtra at the time of implementation of the 5th Pay : 11 : Commission Report, the bailiff and head bailiff are granted same pay scale of Rs. 3050-4590 but on promotion from the post of bailiff to the head bailiff he may be given additional special pay of Rs. 150/-. According to the Govt. of Maharashtra, head bailiffs are not entitled to the pay scale of Rs. 4000-6000 because that scale was never approved for the post of head bailiffs. In view of this, the order issued by the Respondent no. 6 or Respondent no. 7 for the recovery of the amount cannot be said to be illegal but was in breach of the status quo order passed by the High Court. 10. As far as the respondent no. 6 is concerned, he has explained that the gratuity payment orders were issued by him on the basis of the papers which were submitted by the concerned department i.e. the District Court, Ratnagiri. In my considered opinion the respondent no. 6 has not committed any contempt of the court and the recovery was shown in gratuity payment orders because the said recovery was shown in the pension papers submitted by the department. Even though the respondent no. 5 Accountant General was a party to the writ petition, the respondent no. 6 while issuing the said order could presume that the District Court must have taken care of the order of the High Court while submitting the papers. In view of this, in my : 12 : considered opinion, the explanation given by the respondent no. 6 may be accepted and he cannot be held guilty of the contempt of the court. 11. As far as the respondent no. 7 is concerned, he was Principal District Judge, Ratnagiri and was head of the department. In his affidavit dated 28-8-2007 he has clearly admitted that the order dated 29-9-2006 was received in the office of the District Court, Ratnagiri, on 9-10-2006. If both the affidavits submitted by Respondent No. 7 are looked into, it appears that Shri K. G. Sawant had submitted the pension application on 8-2-2006 and he had requested that his pension may be fixed in the old pay scale in view of the objections taken by the pay verification unit in respect of the head bailiff Shri S. S. Amrute and on that basis his papers must have been processed and submitted to the office of the A.G. Shri Vishwanath Keer submitted the application on 30-11-2006 with a similar request to fix his pension in the old pay scale. This was also in view of the objection taken by the pay verification unit. In view of this, when the pension papers were submitted to the office of the A.G. his pay must have been shown in the old scale and therefore it was also necessary to show that in view of that scale, over payment was made. Therefore, the District Court office must have shown the : 13 : over payment made as per the revised pay scale. It should not be forgotten that the pension papers of the staff are prepared by the clerical staff working in the District Court under the control and supervision of the concerned Superintendent. The Principal District Judge is not expected to and in fact may not have time, to personally check and scrutinise each and every proposal submitted to the office of A.G. In these circumstances the pension papers were submitted by the District Court addressed to the office of the Accountant General and accordingly the gratuity payment orders were issued by the office of the Accountant General. These two orders showed the recovery of over payment of pay and allowances in respect of these two bailiffs. Below that order there appears typed order directing the Assistant Superintendent (Cash) to draw the amount and to recover the over payment and that order is signed by the Respondent No. 7. It is true that if the respondent no. 7 would have been bit more careful, the order of recovery would not have been issued but the respondent no. 7 has clarified that due to human error this mistake was committed and the order came to be issued for recovery of the amount as per the gratuity payment order issued by the office of the A.G. 12. Taking into consideration all these circumstances and the affidavit filed by the respondent no. 7, I find : 14 : that respondent no. 7 had not willingly and intentionally dis-obeyed the order of the High Court but as stated by him due to the human error or may be the order of the status quo did not strike his mind when he signed the order and, therefore, said order came to be passed. For this mistake he has offered unconditional and unqualified apology as pointed out earlier. In the additional affidavit, the respondent no. 7 has clearly stated that he was not making attempt to justify his action but only clarifying the facts and circumstances. In view of these circumstances, the unconditional apology may be accepted. 13. Mr. V.P. Patil, learned counsel for the Petitioner vehemently contended that the respondent no. 7 has committed contempt of the court and therefore action should be taken. In support of his contention he placed reliance upon Dhananjay Sharma v/s State of Haryana & Ors. - (1995) 3 Supreme Court Cases 757, Afzal and Anr. v/s State of Haryana & Ors. - (1996) 7 Supreme Court Cases 397 as well as T.M.A. Pai Foundation & Ors. v/s State of Karnataka & Ors. - (1995) 4 Supreme Court Cases 1. It appears that in Dhananjay Sharma, a police officer had waylaid the detenu and inspite of that he filed false affidavit denying the waylaying and subsequent detention. In the : 15 : case of Afzal, 2 minor boys were wrongly confined by the police and inspite of that in the Habeas Corpus Petition, the police officers had filed false affidavits In these circumstances, Their Lordships of the Supreme Court held the concerned police officer were guilty of the criminal contempt and sentenced them to different terms of imprisonment. In T.M.A. Pai Foundation, the Supreme Court had passed certain judgment clarifying the legal position as to how NRI quota in admission to Medical colleges should be operated. It appears that concerned secretaries of the Govt. of Maharashtra mis-interpreted that judgment and gave advise to the Government which was contrary to the directions of the Supreme Court and immediate action was taken on such advice. In these circumstances, strictures were passed against them by the Supreme Court. In my considered opinion, the facts of the present case are totally different from the facts of all the above referred 3 cases. In the present case, it is true that there was a breach of the ad- interim order of status quo passed by the High Court but that breach was due to the human error and was certainly not an act of intentional and willful disobedience. Therefore, in my considered opinion, it is not necessary to take action against Respondent No.7. : 16 : 14. For the aforesaid reasons, the contempt petition stands dismissed without any action against the Respondent Nos. 6 and 7. (J. H. BHATIA, J) (J. H. BHATIA, J) (J. H. BHATIA, J)