1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CONTEMPT PETITION NO. 111 OF 2007 Mr. Dattatraya Shankar Chavande. ... Petitioner. V/s. The Mumbai Port Trust and Others. ... Respondents. Mr. Dattatraya Shankar Chavande, Petitioner in-person. Mr. Bharucha i/b. Mulla & Mulla for Respondent Nos 1 to 3. CORAM : S.C. DHARMADHIKARI, J. DATE : 24TH MARCH 2009. P.C. :- The Petitioner had filed the Writ Petition in this Court being Writ Petition No. 453 of 1997 which was disposed off by this Court on 18th October 2006 and the following directions came to be issued :- “ 1. Considering the judgment of the Madras High Court 2 and the orders of the Government of India, the Petitioners as also the similarly situated would be entitled to count interim relief for all purposes as set out by the Madras High Court. This exercise has to be completed and the benefits to be paid at any rate not latter than sixteen weeks from today. 2. Considering what we have set out earlier, the Respondents are directed to count the pension for the purposes of computation by including the component of interim relief. This exercise to be completed within the period of sixteen weeks from today and the difference be paid accordingly." 2. The Division Bench directed that all Class III and Class IV employees allegedly entitled to interim relief in terms of the Madras High Court Judgment and directions of Government of India, their cases be considered. Therefore, the Division Bench directed that for the purpose of calculating increased Dearness Allowance, Leave Travel Allowance, House Rent Allowance and other allowances, Interim relief should be considered in terms of the Madras High Court Judgment and that exercise should be completed within 16 weeks from the date of the order. 3 3. The Second part was with relation to computation of pension by including component of the interim relief. The Division Bench found substance in the Petitioner's contentions and directed the Respondent to count the pension and for computing the same include the component of interim relief. 4. The last aspect was with regard to personal pension and the Court directed that the Petitioners and the Officers of the Respondents should sit together and work out that aspect as well so that the complaint of the Petitioners that some deductions have been made from personal pension can be looked into by the Respondents. 5. The grievance of the Petitioners in the Contempt Petition is that the Respondent did nothing for implementing the order of this Court. A reminder was sent by the Petitioner on 4th December 2006. The Petitioner also forwarded by his letters dated 21st and 22nd December 2006 calculations. The Petitioner also requested Mr. 4 V.G. Kulkarni to apprise the Respondents about the grievance and Mr. Kulkarni also addressed a letter on 3rd January 2007. 6. The Officers of the Respondents then invited the Petitioner and the said Kulkarni to discuss and resolve the grievance and received a letter dated 17th February 2007 from the Deputy Chief Accounts Officer to that effect. The grievance is that it was held that the Petitioner was not entitled to anything save and except a sum of Rs. 2,150/- which was paid by a cheque. There are several sums payable to the Petitioner. 7. A reference is made to these facts and in paragraphs 17 to 19 of the Petition, the Petitioner states thus :- 17.The Petitioner submits that the above letter gives an impression that nothing was required to be done pursuant to the order of this Hon'ble Court. However, the Petitioner was paid Rs.2154 by cheque towards all payments as per the order of this Hon'ble Court. In fact, the said amount is the difference in payment of encashment of leave and is merely a fraction of the arrears payable to Petitioner. And in any case the Respondents 5 have made no payment to other pensioners, which was obligatory upon Respondents. 18. The Petitioner submits that the calculations made by Respondents were totally erroneous, even to Respondents knowledge. The Respondents paid the said amount only to avoid an allegation of doing nothing for implementing the order of this Hon'ble Court. The Petitioner submits that the Respondents were directed by this Hon'ble Court to calculate and pay the benefits as set out in the order, not only to Petitioner but also similarly situated employees. However, the payment made to Petitioner was mockery of the order. And no other employee was paid anything as if no one was entitled to anything. Thus, the Respondents admittedly committed deliberate, willful breach of the order of this Hon'ble Court; 19. The Petitioner submits that even the Mumbai Port Trust Retired Employees Association, which is an association of Pensioners, requested the Respondents to implement the order of this Hon'ble Court, vide letter dated 18.7.2007. '' 8. A reference is made to the Resolution passed in the Meeting of the Board of Directions of the Respondents held on 24th July 2007 and once again the Petitioner raises the issue of the 6 computation of the benefits. Reference is made to the correspondence by the Petitioner and allegedly pointing out the mistakes committed by the Respondents in implementation of the order of this Court and on that basis it is contended that the Respondents have deliberately and wilfully violated the order passed by this Court in the above Writ Petition. 9. When this Contempt Petition was placed before a learned Single Judge of this Court on 10th June 2008, the learned Single Judge heard parties and thereafter, directed as under :- “ 3. Learned Counsel for the Respondent submitted that the pay/pension have been fixed in accordance with the said directions. However, in order to leave no grievance the Respondent no.1 would recompute the pay/pension and other benefits if any, strictly in accordance with the directions issued by the Division Bench in the order dated 18th October 2006 and pass a speaking order giving particulars of computation. This would be done to obviate any dispute as to whether computation has been made in accordance with the directions of the Division Bench. Counsel for Respondent No.1 seeks three weeks' time for 7 the purpose of recomputation and passing of a speaking order. In view of this submssion, adjourned for three weeks.” 10. Subsequently, also the parties met but it appears that the Petitioner has some subsisting grievances. 11. It is on the above basis that this Contempt Petition has been filed. There is an affidavit filed by the Deputy Chief Accounts Officer on 10th July 2008 in which it is stated that the Respondents have passed a Speaking Order giving particulars of the computation and a copy of the said order is annexed as Annexure `A' to the affidavit of the Respondents affirmed on 10th July 2008. 12. Once again, the Petitioner was served with a copy of this affidavit and what the Petitioner has pointed out is that the unauthorised and illegal recovery and deduction by Pension Branch of the Accounts Department. Personal pension due and payable to the Petitioner is a issue which will still remains unresolved according to him. It is contended that irregular retrospective recovery of 8 monthly instalment against differential computation is the other issue. 13. It is pointed out that the Department of Pension and Pensioners' Welfare, Government of India has clarified that interim relief was not taken into account at the Base Consumer Price Index 250 page by the Port Trust as it was not in existence at that post prior to the year 1984. Therefore, the Petitioner's demand to calculate personal pension in Port Trust as per Department of Pension and Pensioners' Welfare Office Memorandum dated 16th September 1985 is not correct. 14. The Petitioner's version is that interim relief is sanctioned with effect from 1st January 1986 and is to be treated as pay for all purposes including Pensionery Benefits as per Government of India's orders dated 16th November 1998 and 15th January 1999. As such, it must be included as an element in computation of basic pension and not personal pension as wrongly presumed. Inerim relief is in no way related to or determined with reference to the price index but on the 9 other hand interim relief has been taken into consideration for calculation of Basic Pension as per the Government of India communications. Personal Pension is nothing but loss in Dearness Relief/Periodical Relief. It is not part of Basic Pension and therefore, cannot be adjusted against increase in Basic Pension on account of merger of interim reliefs. 15. This is the version of the Petitioner after the Speaking Order was passed and that is set out in the affidavit of 5th August 2008. The Petitioner has filed subsequent affidavits ending with the affidavit filed on 12th March 2009. 16. It is on the basis of the above material that this Contempt Petition was placed before me. I have heard the Petitioner appearing in person and Mr. Bharucha, learned Senior Counsel for Respondent Nos. 1 to 3. The learned Additional Solicitor General of India appeared on behalf of Respondent No.4. 17. The contention of the Petitioner is that the Respondents 10 have not bothered to work out correctly all the arrears of the differential pension and other allowances in terms of the order dated 18th October 2006. It is contended that the Petitioner and other similarly situated Mumbai Port Trust serving employees have been wrongly denied the benefit of the Judgment of the Madras High Court. There are erroneous deductions in present pension and personal instalments from basic pension against differential computation and value. The Respondents have sought to cover up irregular recoveries by stating some reasons but the same are untenable. 18. The Petitioner claims that arrears payable for the period ending 28th February 2009 are Rs.67,150/- but he is paid a paltry sum of Rs.2,154. Further, it is contended that the Petitioner is entitled to refund of wrongful recovery of personal pension to the extent of Rs.45,500/- at the rate of Rs.175/- per month from 1st October 2007 to 28th February 2009. Further, Rs.12,600/- is refundable to him on account of diffential computation value. Rs.8,000/- is payable to him as minimum estimated differential 11 overtime but a token sum of Rs.2,364/- paid to him on the basis of an Arbitrary irrational and unequitable formula. My attention is invited to the objections raised in the affidavit dated 13th August 2008 and 26th October 2008. These objections have not been taken into consideration by the Respondents. The Petitioner has in the Written Submissions given the figures, according to him, which reflect correctly the emoluments due to him. 19. The concept of personal pension is explained at great length during the course of oral arguments and in the written submissions. Similarly, details of other benefits have also been given. My attention is invited to the order passed by the Madras High Court and the Division Bench of this Court in the subject Writ Petition so also the Speaking Order and it is contended that there are several irregularities and illegalities in the computation and calculations and they deserve to be set-right by this Court. 20. On the other hand, Mr. Bharucha, learned Senior Counsel appearing on behalf of Respondent Nos. 1 to 3 has invited my 12 attention to the orders passed from time to time and it is contended that as far as personal pension is concerned, in the Port Trust, pension was fixed on Consumer Price Index CPI - 250 prior to the year 1984. After the payment revision effective from 1st January 1984, pension was fixed on CPI-455 for the period 1st January 1984 to 30th March 1985. The Pension was revised for the period 31st March 1985 to 31st December 1987 and was re-fixed on CPI-568. In some cases, due to refixation of pension based on a different CPI, the pension being drawn by the concerned pensioners came down and was reduced. In order to protect the drop in pension owing to the revision, Resolution was passed by the Trustees being TR No.476 of 1992, under which the amount called personal pension to protect against the drop in pension on account of revision, came to be passed. The Petitioner's case therefore ought to be considered in accordance with the pension paid by the Respondents. Thereafter, my attention is invited to the Speaking Order and it is contended that in terms of both orders, the Respondents made an attempt to redress the grievance of the Petitioner and other pensioners. It is contended by Mr. Bharucha that in Contempt Jurisdiction this Court cannot 13 examine the merits of the controversy. Ultimately, the Respondents have as per the Division Bench order and the Madras High Court Judgment computed the amounts payable. The computation and calculations may be erroneous but it cannot be said that they have willfully and deliberately violated the order and direction of this Court. Ultimately, the order has to be implemented and it was indeed implemented. While implementing the same, if the Respondents have ommited to take some aspects into consideration or have considered them but erroneously, according to the Petitioner, then, his remedy is not to pursue the Contempt Petition. 21. It is contended that even during the pendency of the Contempt Petition and persuant to and having due regard to the order dated 10th June 2008, once again an attempt was made and my attention is invited to the notes of discussions of the Board Meeting held on 26th June 2008. My attention is also invited to the Speaking Order which is an Annexure to the Trustees Resolution No.106 dated 26th June 2008. It is contended that the position in respect of each of the allowances has been considered and set out in para 15 and 14 ultimately, it is held by the Trustees that the claim as made, under several heads for payment of differential portion, by including interim relief to pay employees who retired during the period 1.1.1986 to 1.12.1987, is worked out and paid. These are Overtime, Night weightage, Ex-gratia and Leave Encashment. No other allowances are payable as per rules and therefore, a summarised position of payment is set out therein. 22. After having perused the entire petition and the annexures thereto, so also the affidavits filed by parties, I am of the opinion that the Contempt Petition is not the remedy for the Petitioner. If the Petitioner is aggrieved by the order dated 26th June 2008, copy of which is annexed to the affidavit dated 10th July 2008, then, the remedy is to challenge that order independently and not in Contempt Petition. All further affidavits filed on record indicate that the Petitioner is aggreived by the calculations and computations. According to him, certain allowances have been wrongfully and illegally omitted while computing pay whereas, the Respondents persist with their stand that the available allowances in the Bombay 15 Port Trust are taken into consideration so also the Government orders. 23. In my view, it would be transgrassing the limits of Contempt Jurisdiction if I enter into the merits of the controversy. The Petitioner was informed all through-out and it was repeatedly emphasised by me that in Contempt Jurisdiction I cannot quash the Speaking Order. If I do so, that would be clearly violating the limits of Contempt Jurisdiction. 24. In a recent decision reported in AIR 2005 S.C. Page 3200 (Director of Education, Uttaranchal V/s. Ved Prakash Joshi), Hon'ble Mr. Justice Arijit Pasayat speaking for the Bench, observes thus : " While dealing with an application for contempt, the Court is really concerned with the question whether the earlier decision which has received its finality had been complied with or not. It would not be permissible for a Court to examine the correctness of the earlier decision which had not been assailed and to taken the view different than what was taken in the earlier decision. A similar view 16 was taken in K.G. Derasari and Anr. V/s. Union of India and Ors. (2001 (10) SCC 496). The Court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party who is alleged to have committed default in complying with the directions in the judgment or order. If there was no ambiguity or indefiniteness in the order, it is for the concerned party to approach the higher Court if according to him the same is not legally tenable. Such a question has necessarily to be agitated before the higher Court. The Court exercising contempt jurisdiction cannot take upon itself power to decide the original proceedings in a manner not dealt with by the Court passing the judgment or order. Right or wrong the order has to be obeyed. Flouting an order of the Court would render the party liable for contempt. 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. It cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional directions or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible. In that view of the matter, the order of the High Court is set aside." 17 25. In my view, considering the above principles and bearing in mind the limited scope of the Contempt Jurisdiction, it will not be possible to go into the rival contentions on the correctness of the Speaking Order. It will be open for the Petitioner to assail the same in appropriate proceedings. 26. Having perused the affidavit of the Respondents, I am of the opinion that they have not violated the order passed by this Court willfully and deliberately. Assuming that there is a delay or that the decision taken was not communicated promptly yet, it cannot be said that the conduct is such as could be construed as "Civil Contempt" so as to take action under the Contempt of Courts Act, 1971. For all these reasons, the Contempt Petition is dismissed. No costs. (S.C. DHARMADHIKARI,J.)