:1: 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. 27 OF 2008 PETITION NO. 27 OF 2008 PETITION NO. 27 OF 2008 IN IN IN WRIT WRIT WRIT PETITION NO. 53 OF PETITION NO. 53 OF PETITION NO. 53 OF 2006 2006 2006 Mr. P.K. Mishra. ... Petitioner. V/s. O.N.G.C. Ltd. & Ors. ... Respondents. Ms. N.D. Buch i/b. S.K. More for the Petitioner. Mr. S.U. Kamdar, Sr. Counsel a/w. Mr. Jagtiyani & Mr. O. Mohandas i/b. Little & Co. for the Respondents. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 04th 04th 04th APRIL 2009. APRIL 2009. APRIL 2009. P.C. P.C. P.C. : : : . Heard Ms. Buch, learned Counsel appearing for the Petitioner and Mr. Kamdar, learned Senior Counsel appearing for the Respondents. 2. The Original Petitioner was working as a Deputy General Manager (Personnel and Administration) in the First Respondent. 3. He filed the Writ Petition in this Court challenging certain actions of the First Respondent and on that Writ Petition this Court passed an order on 5th December 2006. The Court noted that an order was made by the Respondent treating the period of suspension from 16th April 1996 to 28th May 1998 as on duty. Despite this, another order to the contrary was made, compelling the :2: Original Petitioner to move this Court. 4. It is after hearing both sides that the Court passed directed that the action of the First Respondent not treating the period of leave as spent on duty requires to be quashed and set aside. The First Respondent was directed to pay all unpaid wages and allowances to which the Original Petitioner was entitled to during the period of his suspension, within a period of 20 weeks from the date of the Judgment. 5. The matter was taken to Supreme Court by the Respondents the and Special Leave Petition of the First Respondent was dismissed by the Supreme Court of India on 16th March 2007. 6. Thereafter, on 14th June 2007, the Original Petitioner addressed a letter seeking compliance with the Court’s order. The First Respondent, thereafter, communicated to the Original Petitioner that certain documents should be forwarded to them. The Petitioner, forwarded the Last Pay Certificate issued to him and the computation on that basis, on 11th September 2007. The First Respondent once again called upon the Original Petitioner to furnish further details and which were also supplied but there was no response. The Petitioner states that on 9th January 2008, a communication was received of that date whereunder the Respondents have not paid :3: interest on Gratuity withheld for not vacating ONGC accommodation so also charging of penal Rent at the rate of 75% of the basic salary. It was pointed out that there was delay in vacating the premises as the Original Petitioner suffered from Cancer. 7. Alleging that the order and direction of this Court is not complied with by the Respondents wilfully that this Contempt Petition is filed. 8. The matter was placed before this Court and it was argued for some time on 19th March 2009. 9. My attention was invited to the affidavits filed by the Respondents in reply to this petition and more particularly to a communication dated 5th May 2008 (Annexure ‘E’ of the Affidavit dated 6th June 2008). It was stated that the wages and allowances for suspension period was paid by two cheques, copies of which were annexed and in so far as other allowances are concerned, it was stated that a sum of Rs.69,000/- will be paid immediately. As far as the Contributory Provident Fund Scheme and the contribution thereunder, reliance was placed upon this Annexure ‘E’. 10. I had noted in my order dated 19th March 2009 that the Respondent should file an affidavit pointing out as to how the Incentives towards car facility so also CPF :4: contribution made from the arrears of pay for the suspension period are being disbursed. 11. This was because a grievance was made by Ms. Buch that Ex-gratia incentive towards car facility and refund of CPF are the two heads under which amounts have not been released. 12. In pursuance of the order, an affidavit was filed on 26th March 2009 and Ms. Buch states that the Petitioners are now satisfied with the explanation with regard to the car facility and the other head but with regard to CPF contribution, the statements made on affidavit are misleading. She invited my attention to the annexures to this affidavit and contended that the contribution shown therein is not on the basis of full salary but on Subsistence Allowance which would initially be 50% of the salary and subsequently, 75%. Since, the entire period is to be treated as spent on duty, the contribution must be 100% of the salary. 13. On the other hand, Mr. Kamdar, learned Senior Counsel appearing for the Respondents contended that the affidavit amply clarifies that the amount paid by a cheque dated 20th February 2007 i.e. Rs.25,23,404/- includes Employee as well as Employers’ contribution for the suspension period. He relies upon the letter dated 8th May 2008 and contends that the statements which are :5: annexed to the further affidavit would substantiate that the total amount during the period of suspension comes to Rs.3,54,329.50. After the period of suspension, the First Respondent has made additional payment to the Petitioners towards the conveyance maintenance and as also released the full contribution under the CPF Scheme. He submits that even if there is some error in calculation or that the Petitioners are dis-satisfied with the computation, contempt petition is not their remedy. Contempt postulates deliberate and willful disobedience to the order and directions of the Court. That is not the case made out. Further, no Affidavits are filed by the Petitioners after 26th March 2009 which would demonstrate that the Respondents have disobeyed the orders of this Court wilfully. 14. After perusing the Petition and the affidavits filed on record, I am of the view that no case of Civil Contempt is made out. The object and purpose of contempt proceedings and the jurisdiction conferred in that behalf is well settled. For a ready reference, the Judgment of the Supreme Court in AIR 2006 SC 909 can be reproduced. The Supreme Court observes thus :- "6. If any party concerned is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor feasible, it should always either approach the :6: Court that passed the order or invoke jurisdiction of the appellate court. Rightness or wrongness of the order cannot be urged in contempt proceedings. 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 with 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 direction 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." 15. If the present proceedings are to be decided on the touchstone of these principles, it is apparent that the Petitioner alleges civil contempt on the basis that the order has not been complied with deliberately and willfully. However, the annexures to the Petition so also the explanation placed on affidavit would go to show that periodically sums have been released after the details have been forwarded. It is unfortunate that the Original Petitioner has expired. It is equally true that the Legal Representatives and Heirs can come forward and claim :7: terminal dues so also the benefits under the order of the Division Bench but from the record it is apparent that sums under several heads have been released to them. It is not as if the Petitioner is dissatisfied today with the computation on all counts. The Petitioners themselves have clarified that barring the contribution towards Provident Fund everything that is admissible to the Original Petitioner has been released. In such circumstances, there is substance in the contention of Mr. Kamdar that for correcting of any error in the calculation or computation so also for the Petitioners further claims under the head of CPF, a Contempt Petition is not the remedy. Once the Court has been shown the steps taken for compliance with its order and even the delay, if any, has been explained, then, it is not necessary to pursue these proceedings any further. The Contempt Petition is dismissed but it is clarified that if the Petitioners are not satisfied with the sums that have been forwarded as contribution towards the Provident Fund for the suspension period, they would be at liberty to adopt such proceedings as are permissible in law. All contentions in that behalf are kept open. 16. Mr. Kamdar, on instructions, makes a statement that the cheque of Rs.71,150/- which was handed over but not encashed would be replaced by a fresh cheque within a period of 10 days from the date of the receipt of the copy of this order. :8: 17. All Notices of Motion do not survive in the light of the order in the main Contempt Petition. 18. Contempt Petition dismissed subject to above. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)