bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION CONTEMPT CONTEMPT CONTEMPT PETITION NO. 19 OF 2008 PETITION NO. 19 OF 2008 PETITION NO. 19 OF 2008 IN IN IN WRIT WRIT WRIT PETITION NO. 1 OF 2002 PETITION NO. 1 OF 2002 PETITION NO. 1 OF 2002 Tikam Shewaram Ahuja ... Petitioner v/s Anup Kumar Dingan GM, C.R., Mumbai & ors. ... Respondents Mr.Ramesh Rammurthy for the petitioner. Mr.R.B.Desai, Sr.Counsel with Mr.Suresh Kumar for respondent Nos.1 to 3. CORAM: CORAM: CORAM: S.C. DHARMADHIKARI, J. S.C. DHARMADHIKARI, J. S.C. DHARMADHIKARI, J. DATED: DATED: DATED: 18TH MARCH, 2009 18TH MARCH, 2009 18TH MARCH, 2009 P.C. P.C. P.C.: 1. The contempt petition alleges wilful and deliberate disobedience by the Central Railway, Mumbai and its officers of the judgment and order dated 9.11.2006 passed in the above writ petition. 2. The petitioner was employed in the Central Railway. He is presently 73 years of age. It is the case of the petitioner that he had filed a Original Application before the Central Administrative Tribunal, Mumbai 2 Bench, challenging the penalty of compulsory retirement imposed on him by the Central Railway. That Original Application was allowed on 19.7.2001. The order of the disciplinary authority was set aside. The petitioner was held to be entitled to full Back Wages and Retiral Benefits. 3. That judgment was challenged by the Central Railway and the respondents to this petition by filing the writ petition in this Court which writ petition was allowed in the following terms:- "(1) The order of compulsory retirement was passed on 12.2.1986. The petitioner superannuated on 30.6.1994. In these circumstances, the delinquent employee will not be entitled to any back wages for the period from 12.2.86 to 30.6.84, but will be treated as on duty and will be paid all terminal benefits as if he was on duty till his superannuation. (2) In so far as Writ Petition No.2454 of 2003 is concerned, in view of the order passed in W.P.No.1 of 2003, nothing survives in this petition. However, in case the petitioners benefits are not paid in terms of the order of this Court, it will always be open to the delinquent employee to move the appropriate forum for necessary directions. (3) Considering that this is a old matter, we direct the Union of India to fix and pay pension in terms of our directions at any rate not latter than six months from today." 4. Thus, it was held by the Division Bench that the petitioner will not be entitled to any back wages for 3 the period from 12.2.1986 to 30.6.1994. However, this period will be treated as on duty for the purposes of terminal benefits and he will be paid the same till the date of his superannuation. His pension also will be fixed and all this was to be done within six months from the date of the order. 5. The grievance of the petitioner is that, from the date of the order, the stipulated time expired but no pension was fixed nor were the terminal benefits released. This is nothing but a deliberate and wilful disobedience of the order and directions of this Court. 6. An affidavit has been filed after the contempt petition was admitted and in the affidavit in reply the respondents have pointed out, besides tendering unconditional apology, that the matter was taken up by Appropriate Authorities and the terminal benefits were computed. In paragraph 7 the details have been given and thereafter in paragraphs 9 and 11 it has been stated that the petitioner will be paid revised pension with arrears. He has also been paid the terminal benefits. 7. The petitioner has filed a rejoinder stating therein that the calculation of Death-cum-Retirement Gratuity is incorrect. The amount of pension has been paid but 4 recovered from his pension Account with Bank of India without any reason being assigned for the recovery. 8. After the matter was argued for some time, it was brought to my notice by the respondents that the Bank of India, through its Chief Manager, has clarified that the difference of death-cum-retirement gratuity of Rs.7,395/- was credited to the petitioner’s account on 23.5.2007 and the difference of pension has been paid on 26.4.2008. The matter was placed today for further hearing and orders. 9. After perusing the petition and the Annexures thereto, so also the affidavits on record and considering the submissions of both sides, I am of the view that, no case for proceeding in contempt is made out. This is not a case of wilful disobedience of the order or direction of this Court. There is some delay in compliance but it has been explained. Further, without anything more, merely for the delay, the contempt jurisdiction cannot be invoked and that too in the facts of this case. While it is true that the grievance is made that the pension was not fixed within the time schedule, yet, it is clear from a perusal of the Bank statement and the certificates, that on 26.4.2008, the pension Account has been credited. 5 10. Mr.R.V.Desai, learned senior counsel appearing for the respondents fairly admitted that the pension ought to have been fixed and released by May, 2007. For the delay from May, 2007 till April, 2008, the Court may determine the appropriate rate of interest and direct the payment thereof. 11. Mr.Rammurthy, learned counsel for the petitioner, on the other hand, would urge that interest at the rate of 18% should be granted for this delay. Apart from this, it is his submission that the calculation is incorrect. The petitioner has applied for commutation of pension to the extent of 1/3 but that benefit is not granted. 12. Mr.Desai has produced the file which would indicate that the petitioner has filled the form but as far as commutation is concerned, he has scored off that column. Mr.Rammurthy states, on instructions, that the petitioner has not scored off the said portion. This is a aspect which must not be agitated and cannot be gone into in contempt jurisdiction. If the computation is incorrect or that the petitioner has applied for commutation of 1/3 pension and that benefit is denied, then, it is open for the petitioner to initiate 6 appropriate remedy and seek relief therein. 13. Similarly, if the petitioner is not satisfied with the calculation of the D.C.R.G., even then, he can resort to appropriate remedy to set right the error in the order or to seek any additional relief. The petitioner’s Special Leave Petition for difference of the back wages is pending. Without prejudice thereto, the petitioner can always seek assistance of the authorities or the Court and recover the sum in accordance with law. However, his grievance with regard to the inspection and furnishing of copies of his pension record so also the computation of his D.C.R.G. is justifiable. 14. The Central Railway and the respondents are directed to furnish the computation of death-cum- retirement gratuity and copies of the record of pension which is in their custody, within a period of one week from the receipt of an authenticated copy of this order. 15. Similarly, the petitioner’s grievance with regard to Interest for the delayed payment is justified. The respondents would urge that the interest at the rate of 10% per annum is justifiable, whereas the petitioner states that it should be 18% per annum. In my view, 7 interest of justice would be subserved if interest at the rate of 12% is granted on the sum which is to be paid as differential pension i.e. of Rs.26,037/- from 1.5.2007 to 26.4.2008. This interest would be paid and recovered without prejudice to the rights and contentions of both sides in the pending proceedings before the Supreme Court. The Interest for this period be paid as expeditiously as possible and in any event within a period of 15 days from the receipt of a authenticated copy of this order. 16. Contempt petition is disposed of. All concerned parties to act on the authenticated copy of this order. (S.C.DHARMADHIKARI, (S.C.DHARMADHIKARI, (S.C.DHARMADHIKARI, J.) J.) J.)