^LY'Y ^•^ </ %lBtB<B8nelr F; IN THE HON'BLE HIGH COURT QF CHHATTISGARH AT BILASPUR CONTEMPTCASE(CIVIL)NO, s% J2010 (S.B.) APPLICANT -W^i '^•'•"^ h^y A..--"' Aashish Kumar Guha, S/o Late M.N. (Suha, Aged about 65 years, resident of Akbar Chal, Idgah Road, Masanganj, Bilaspur, Tahsiland District Bilaspur (Chhattisgarh) VERSUS Ramesh Chandra Sharma, Inspector General of Police, Bilaspur range, Bilaspur (Chhattisgarh) Vivekanand, Superintendent of Police, Bilaspur (Chhattisgarh) Umesh Agrawal, Joint Director, Treasury, Accounts and pension, Bilaspur, District Bilaspur (Chh^isgarh) APPLICATION UNDER ARTICLE 215 OF THE CONSTITUTION OF INDIAREAD WITH SECTION 12 OF THE CONTEMPT OF COURTS ACT.1971 FORINITIATING CONTEMPT PROCEEDINGS. ?^^ The aDDlicant most humblv and respectfullv submits as under: - ^s NON.APPLiCANTS 1 CONTEMNORS ^ .3. ^ ^^•—" HIGH GOURT OF CHHATTISGARH ; BILASPUR ..•s. Sinale Bench: Hon'ble Shri Manindra Mohan Shrivastava.J» PETITIONER RESPONDENTS CONTEMNORS CONTEMFT CASE (CIN0.56Q010 Aashish Kumar Guha Versus Ramesh Chandra Shacma and ottiere CONTEMPT PETn-ION UNDER ARTICLE 215 OF THE CONSIIITOON OF ^ INDIA READWITHSECnON 12 OF THE CONTEMPt OF COURT8 ACt. 11171 ^ Present: - Shri Prakash Tnvari, counsel for the petitiorier. Shri Ranbir Singh Marhas, counsel for the respomtent No.2.* ORALORDER (Passed on 3rd of March, 2011) This contempt petition has been filed by the petdioner atleging wiltful disobedience and violation of order dated 7/05/09 passed in W.P.(S) No.4S63/06 and batch of petitions including the petition filed by ttie petitioner bearing number W.P.(S) N0.4753^)6. 2. Learned counsel for the petitioner submitted that white the petiUoner was working as Subedar in ttie ofRce of Inspector General of Police, Bilaspur, an order dated 29/07/06 was issued by the DIG (Adminisfratton), Poiice Headquarters, Raipur directing recovery of excess payment frwn the employees on account of wrong fixation of salary in the Chaudhary Pay ^cale. That orcter was chaltenged by a large number of employees and a common orcter was passed in those cases including the case of the petitioner. The impigned orcter dated 29/7/06 was quashed and it was directed that the amount, if any, so deducted,be paid to the petitioners wjth simpte interest. It is further submitted that the Gourt also reserved liberty to the respondent to take appropriate st^>s ••-"'T8'^ ^. j:y , -• u ^SS^ 1 ^\ ^h. ^ after applying prindples of natural justice in accordance witti Rute 65 of tho Chhattisgarh Civil Services (Pension) Rules, 1976. Leamed counsel for ttie petitioner submitted that the order of the Court, not only held illegal, the ae^on of recovery but also set aside the order dated 29/07/06 by which pay scale of the petitioner was attered to a lower pay scale. Therefore, the respondente were neither entitled to make any recovery nor had any libertytolower ttie pay scato of the petitioner. 3. It is submitted that the petitioner retired upon attaining th» age of superannuation on 31/10/06. It is submitted that even after the order passed by this Court, the pension and retiral dues of the petitioner induding payment of gratuity and leave encashment were not paid against which the petitioner made a representation on 1/7/09. In reply to the said representation, the petttioner received a tetter dated 29/07/09 (Annexure C/6) by which the Superintendent of Police sought instructions from the 1.0. (Administration) Police HeadquartBre, Raipur. Thereafter, respondent No.3 sent a tetter to respondent No.2 that in compliance ofthe order dated 7/5/09 ofthe Court, provisions of Rute 65 have not been followed nor any orders have been made. It is further submitted that the regular pension of the petitioner and the amount of gratuity has been withheld and the same has not been paid on the basis of his last pay certificate. Learned counsel further submttted that inaction of the res|»ndentauttiority withholding the amount gratuity and leave encashment and also not finalising pensien, amounts to serious vtolation ofthe order of this Court. ^ 4. On the other hand, learned counsel for the respondent No.2 (tp whom alone the nottees were issued in the contempt proceedin^) refening to ttie averments made in the reply submits that no recoveryhas been made from the retiral dues of the petittoner. Afker the order was pass<rf by thfe Coiirt, respondent No.2 referring the matter to tihe Police Headquarter, leamtthat th@ Govemment had issued instructions to seek review of order cteted 7/5/09 and later on, a review petition was also filed on 1/4/10 at P.R. No.998/10. It is also subm'rtted that order dated 7/5/09 passed by the Court v^is communicated and forwarded to the office of Joint Director, Treasury Accounts and Pensien whereafter the Joint Director informed vide letter dated 29/10/09 (Annexure C/9) thatttie pension case ofthe petitionermay be submitted afresh after complying wjth the provisions of Rute 65 of the Rules of 1976. It was thereafterthat a ^iow cause notice was issued to the petitioner on 9/4/10, (Annexure R-2/1). 4t is further stated that the petitloner is being paid anticipatory pension to the extent of W%, until the matter with regard to fixation of pension is sorted oyt. ft is also submitted that office of respondent No.2 has already submitted the pension and Death-cum-Retirement Gratuity (DCRG) determination forms to the Joint Director, Treasury, Accounts and Pension vidte (etter dated 9/4/2010 (»Annexure R-2/2). It is also submitted that an amount of Rs.1 ,80,873/- towards DCR©and an amount of Rs.85,2^)/- towards teave encashment has already toen deposited in the savings bank account number-10597773442 In tiie State Santc of India, Collectorate Branch, filed as Annexure R-2/3. Leamed wunsel forthe respondent further submitted that infact the petitioner, by way of contempt petition is seeking to enforce a claim for grant of higher pay scate, whichwas not a subject matter of consideration in ttie writ petition wherein the order was passed on 7/5/09. He submits that the petitioner and other einployees started reading the order of the Court in that manner and also started asserting ttiat fte authorities are not entitled to fix the pay / pension on the lower pay scate, therefore a review petition was filed,in which it has been clarlfied by the Court •^•.- '^n. ivys-%. ^y- . .. ^ that there is no direction fbr fixation of pay scato, as the said issye was neittier raised nor arguedat the time of hearing of the writ petittod, though a pteading was made in the writ petition. It was also observed white dlsposlng offtie review petition that without pressing ttie issue, as the same was given up during ttie arguments, no decision on the question of flxation of pay seale was taken and no djrection has been issued. 5. Leamed counsel for the petitioner sfressed and vehementiy submittedl that in the spirit of the order dated 7/5/09, the respondent authority oughtto have allowed the pension case of ttie petitioner on the same higher pay s®aleon which, he worked and retired and that could not be lowered. He further laid emphasis on the aspect that once the order dated 29/07/06 was quashed by the Court, the respondent could not have proceeded to fix the pay rfthe petitioner on a lower pay scate other than the pay scate, on which, he actuatty drew salary. He submitted that his pension case, gratuity and leave encashment benefits were liable to the computed on Uie basis of higher pay scale but it has not beendone. In his submission, the act of the respondent in fixing the pay on a lower pay scale affecting his last pay certificate and also reducing the amount of gratuity, leaye encashment, amounts to willful disobedience of tiie order of this Court as the respondent, in the garb of the same is infact withholdjng the amount of gratuity and leave encashment, which is payable to the petitioner. 6. It is not the case of the petitioner ttiat after ttie order @f the Court, the salary which was paid to the petitioner has been recovered. Vide order dated 7/5/09, the Court granted liberty to the respondents to injtiate proceedings under Rule 65 of the Act of 1976, in case any recovery is intended. It is not the case of the petitioner that respondent, without passing any final order under Rule 65 of L the pension rules, made any recovery. As fer as fixation of pension, gratuity affld leave encashment is concerned, it appwirs ttiat respondent authority for tiie purpose of computing gratuity and teave encashment benefite have made calculations of the amount on the basis of lower pay scate. From theoecter g passed in raview, itis clear that the Court wtiile passing the order dsdsed 7^5/09, s did not issue any direcfion for fixation of pay scale nor constderedthe said issue. Therefbre, irrespective of fact that whether such fixation is legal or Btegal, it ^ cannot be said ttiat by doing that, respondent No.2 in any manner, committecfc s willful disobedience of the order of the Court. It has been stated on affidavjt that the amount of grataAity and leave encashment has been computed and whatever has been found due and payable, has also been deposited in the saviRgs account of the petitioner. Computation of gratuity and leave encashRient is a consequence of fbcation of pay in the lower pay scale and it cannot fce said te be ;; an act of recovery. Further, a note of respondent no.S/Joint Dirwtor that the pension case may be forwarded after taking necessary steps under Rute 65 of , the pension rules, cannot be said to be an act of disobedience, bwause suc^ a liberty was reserved in the order dated 7/^09 itseff. Whether the action of th® respondent, in computing the gratoiity and leave encashment of tie petitioner, by assuming his pay on the lower scale, fe legal or not, cannot be gone into and ts outside the purview of the contempt petition. The remedy af tiie petitioner Hes elsewhere. Deepti 7. tn the resuit, 1 am not inclined to proceed ftjrther in the matter against respondent No.2. Rule is therefore discharged. The petition is finatly disposed off. Sd/- Manindra Mohan Shrivastava Judge