1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CONTEMPT PETITION NO. 131/2010 IN WRIT PETITION NO. 1836/2009 (D) (Dhananjay Ambadas Dhabe - Vs. - Shri Ramesh G. Durugkar and others ) ................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ................................................................................................................................................... Shri V.P.Marpakwar, counsel for petitioner Shri P.P. Thakre, counsel for respondent Nos.1 to 3 Shri A.M.Deshpande, AGP, for Respondent No.4. None for respondent No.5. ... CORAM : R. K.DESHPANDE, J. DATED : 3rd FEBRUARY, 2011. This petition complaints about the willful disobedience/breach of the judgment and order dated 26th June, 2009, passed by this Court in Writ Petition No. 1836/2009. 2] Notice in this matter was issued on 21st July, 2010. In response to which, the respondents have appeared before this Court. The learned counsel for the respondents made the statement before this Court that without prejudice to their rights and contentions, they are depositing an amount of 2 Rs.10,34,576/- to show their bonafides and hence, by order dated 16th December, 2010, they were permitted to deposit the said amount. The amount has been accordingly deposited in this Court on 20.12.2010. 3] The factual background giving rise to this contempt petition can be stated as under. The petitioner was a confirmed lecturer in the services of the respondent w.e.f. 14.8.1985. By order dated 20.4.2001, the petitioner came to be suspended and the charge sheet was issued to him under the signature of the working President on 07.06.2001. The order of suspension was the subject matter of challenge in Writ Petition No. 1840/2001 and it was dismissed on 26.6.2001. The relevant portion of the judgment and order passed by this Court is reproduced below. “We have considered the various contentions raised by the learned counsel for the petitioner. The contentions, in our opinion, are misconceived. The perusal of Clause 8 would show that there is a power of termination contemplated in the contingencies mentioned in clause 8. When there is a power of termination, in order to comply the principles of natural justice, the procedure which is contemplated, need to be undertaken by the authority concerned before terminating the services 3 and therefore, it has to be presumed that there is a power of suspension in-built with the Authority for suspending the employee. This power is exercised in order to facilitate the employee to show cause and give reasons why his services should not be terminated for the reasons stated in the show cause notice. This, in our opinion, is nothing but a compliance with the principles of natural justice and, therefore, the contentions raised by the learned counsel for the petitioner, in our opinion, in this regard are misconceived, devoid of substance and cannot be accepted. Petition is dismissed. Needless to mention that whenever the employee is suspended pending enquiry, the concerned authority needs to complete the same at its earliest in order to avoid not only inconvenience to the parties, but also interest of justice”. 4] The services of the petitioner were thereafter terminated by an order dated 31st March, 2003, passed by the Principal of the College and it was the subject matter of challenge in Appeal No. N-7/2003 before the University and College Tribunal, Nagpur. The said appeal was decided on 20.01.2009 and the operative part of the said order is reproduced below. “The appeal is allowed. The order of termination dated 31-3-2003 is 4 quashed and set aside. The respondent no. 1 and 2 are directed to reinstate the appellant with continuity of service and with full back wages from 29-1-2004 with consequential benefits. In the circumstances, there shall be no order as to costs”. One of the grounds to set aside the order of termination raised was that the charge sheet was not issued by the Local Managing Committee, but it was issued by the Governing Body/ Foundation Society, which was not competent to issue the same. There were other grounds also raised, including that the petitioner was not provided with the effective opportunity to defend the proceedings. 5] The judgment and order passed by the College Tribunal was the subject matter of challenge in Writ Petition No. 1836/2009, filed before this Court by the respondent- Management. The writ petition was partly allowed and the operative part of the same is reproduced below. “3] Hence, the writ petition is partly allowed. The impugned judgment passed by the University and College Tribunal on 20.01.2009 is hereby modified. The order passed by the Tribunal setting aside the order of termination dated 31.03.2003 and 5 reinstating the respondent no.1 employee in service, is hereby maintained. However, since the enquiry is vitiated in view of the violation of the principles of natural justice, the petitioners are granted liberty to proceed with the enquiry from the state where it became invalid, by continuing the respondent – employee under suspension till the completion of enquiry. The petitioners should also pay the subsistence allowance to the respondent-employee in accordance with law. 4] Rule is made absolute in the aforesaid terms with no order as to costs”. 6] The employee filed this contempt petition on 18.7.2010, alleging that there is willful non-compliance/ disobedience of the judgment and order dated 26th June, 2009, passed by this Court in Writ Petition No. 1836/2009. The non-compliance/breach alleged is that, the petitioner was not paid with the subsistence allowance in accordance with law. According to the petitioner, he was placed under suspension by an order dated 20.4.2001 and he continued to remain under suspension till the date of termination on 31.3.2003. According to him, as per the order passed by this court, reproduced above, the petitioner was to continue under suspension till the completion of enquiry. Hence, the payment of subsistence allowance 6 should have been on the basis that the petitioner was placed under suspension w.e.f. 20.4.2001 till the completion of enquiry. Shri Marpakwar, the learned counsel has urged that there is no power to suspend the employee vested in the Management and in the absence of this, the petitioner is entitled to receive full salary by way of subsistence allowance till the completion of the enquiry. According to him, the subsistence allowance if calculated on the basis of the full salary payable to the petitioner w.e.f. 20.4.2001 till 30.4.2010, then it comes to Rs.42,78,252/-, as has been calculated in the statement annexed to the petition as Annexure-XI. He submits that the figure of Rs.42,78,252/- has been arrived at after deducting the amount of subsistence allowance already paid to the petitioner. He relies upon the decision of the Calcutta High Court reported in 2007 I CLR 1081 [Mahadeb Bhattacharjee vrs. State of West Bengal and ors], which relies upon the decision of the Apex Court reported in AIR 1964 SC 787 [R.P.Kapoor vrs. Union of India], for the proposition that the employee is entitled to receive full salary by way of subsistence allowance, in the absence of any rule empowering the authority to place an employee under suspension. He has also relied upon the another decision of the Calcutta High Court reported in 2009 7 II CLR 144 [Bidya Niketan and ors. vrs. Mahadeb Bhattacharya and ors] and the decision of the Allahabad High Court reported in 2007 I clr 1085 [Bharat Electronics Ltd., Ghaziabad vrs. Labour Court, Ghaziabad and ors.]. 7] The respondents have filed their affidavit-in-reply. The stand taken is that, the direction given by this Court that the petitioner should be paid subsistence allowance in accordance with law cannot construed to mean that the respondents were directed to pay the entire 100% salary by way of subsistence allowance and to construe the direction of this Court in this fashion would mean granting of backwages, which were although granted by the tribunal, set aside by this Court. It is the further stand taken that, after the decision of this Court in Writ Petition No. 1836/2009, a separate order has been passed on 15th July, 2010, reinstating the petitioner in service and further placing him under suspension till the enquiry is over w.e.f. 26.6.2009. Hence, according to him, the subsistence allowance if was required to be paid to the petitioner, the same would be from 26.6.2009 till the completion of the enquiry. The learned counsel disputes the contention that the employee is required to be treated to be 8 under suspension w.e.f. 20.4.2001 till the completion of the enquiry. According to Shri Thakare, the learned counsel appearing for the respondents, the petitioner was paid subsistence allowance at the rate of 50% of his basic salary from the date of suspension on 20.4.2001 till the date of termination of his services on 31.3.2003. The employee has accepted the mode of payment of subsistence allowance in accordance with this fashion and upon issuing the fresh order of suspension dated 15th July, 2010, the petitioner is entitled to the subsistence allowance at the same rate at which he was paid till 31.3.2003, i.e. till the completion of enquiry. According to him, it is only an amount of Rs.1,15,000/- which is required to be paid to the petitioner towards subsistence allowance and such payment is in accordance with law. He submits that this court has held in the judgment dated 26th June, 2001, delivered in Writ Petition No. 1840/2001 that the power of suspension is in-built in the authority and in the absence of there being any rate prescribed for payment of subsistence allowance, the petitioner is not entitled to any amount towards subsistence allowance. However, the respondents are ready and willing to pay the subsistence allowance to the petitioner at the rate of 50% of his basic salary which comes to Rs.5,975/- p.m. w.e.f. 26.6.2009 till the completion of the enquiry. 9 8] At what rate, the petitioner is entitled to get the subsistence allowance, whether it should be at the rate of 50% of the basic salary as urged by the respondents or it should be 100% salary in the absence of the power to suspend the employee, is the question which is required to be determined, to find out whether the payment of subsistence allowance is in accordance with law or not. Similarly, the another question which arises for consideration is whether the petitioner should be deemed to have been placed under suspension w.e.f. 20.4.2001 or it should be from 26.6.2009, as urged by the respondents, is also required to be decided on the basis of the interpretation of the judgment and order passed by this Court in Writ Petition No. 1836/2009. Shri Marpakwar, the learned counsel has pointed out that the petitioner had filed Writ Petition NO. 2571/2010 before this Court seeking direction to the respondents to pay regular salary to the petitioner and to allow the petitioner to join his duties. The plea raised in the said writ petition was that, the petitioner is deemed to have been placed under suspension w.e.f. 20.4.2001 and that he was entitled to full salary by way of subsistence allowance in the absence of any power being conferred upon the respondents to place the petitioner under suspension. This 10 writ petition was withdrawn on 22.6.2010 with liberty to file appropriate proceedings. It is after withdrawal of the writ petition, the present contempt petition has been preferred. 9] The complaint made in this contempt petition about non-compliance/breach of the judgment and order passed by this Court on 26th June, 2009 in Writ Petition No. 1836/2009, involves the interpretation of the judgment delivered by this Court. Similarly, what should be the entitlement of the petitioner by way of subsistence allowance in accordance with law, is also a question which determines the rights of the parties. The another question, as to whether the petitioner should be treated to be under suspension w.e.f. 20.4.2001 or it may be from 26.6.2009 is also a question which involves the interpretation of the judgment and order passed by this Court. The dispute involved seems to be bonafide dispute and it has not been adjudicated till date in any substantive proceedings. The respondents have deposited substantial amount to show their bonafides. Though this Court has granted the petitioner liberty to file appropriate proceedings, such dispute can not for the first time be adjudicated in the contempt petition. The jurisdiction of Contempt Court is to find out whether contempt is committed or not and the rights of parties cannot be 11 adjudicated. The Apex Court has held in the decision reported in AIR 1961 SC 221 [The State of Bihar vr. Rani Sonabai Kumari] that, if the order is ambiguous and reasonably capable of more than one interpretation and there is no intention of the party to disobey the order, but the conduct is in accordance with the interpretation of the order, then it cannot be said that there is willful disobedience of the judgment and order passed by the Court. In view of this, I do not find that there is willful/ deliberate intention to disobey or commit breach of the judgment and order passed by this Court on the part of the respondents. The proceedings are, therefore, dropped. 10] So far as the amount of Rs.10,34,576/- deposited by the respondents in this Court on 20.12.2010 is concerned, Shri Thakare, the learned counsel submits that he has no objection for permitting the petitioner to withdraw an amount of Rs.1,15,000/-, which, according to him, cannot be disputed. The petitioner is, therefore, permitted to withdraw the amount of Rs.1,15,000/-. So far as the balance amount is concerned, the office is directed to deposit the said amount in Fixed Deposit in any Nationalized Bank. The respondents shall be at liberty to seek permission for withdrawal of this amount after 12 the enquiry is completed and the orders are passed in accordance with law. It shall also be open for the petitioner to take all such appropriate proceedings for claiming the said amount and determination of the questions, which are raised in this contempt petition and in that event, it shall be open for the petitioner to move this Court in appropriate proceedings or by way of separate application in a disposed of matter, for grant of permission to withdraw the said amount. This is all without prejudice to the rights of the parties. JUDGE Rvjalit