IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.579 of 2008 1. ARVIND KUMAR SINGH , s/o Late Janardan Prasad Singh, Secretary, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 2. Akhileshwar Prasad, s/o Late Yadunandan Prasad, Financial Controller-1 Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna -------- Respondents/Opposite-parties/Appellants Versus 1. SRI SUNIL CHOUDHARY, retired Electrical Executive Engineer, son of late R. N.Choudhary, resident of House No. 21/1E, Fern Road, Kolkata-700019 ---------- (petitioner)/Petitioner/Respondent no. 1 2. The State of Jharkhand 3. Sri Rajendra Prasad Singh, Secretary, Jharkhand State Electricity Board, HEC Engineering Building, At & P. O. Dhurwa, Ranchi. 4. Sri Jai Prakash, Joint Secretary, Jharkhand State Electricity Board, HEC Engineering Building, At & P. O. Dhurwa, Ranchi ------- Respondents/Opposite parties/Respondents --------- For the Appellants :- Mr. Navin Prakash, Adv. For the Respondent No.1 :- Mr.R.K. Sinha, Adv. For the Respondent Nos. 3 & 4 :- Mr. Satyabrat Verma, Adv. ----------- PRESENT : THE HON’BLE SMT. T. MEENA KUMARI THE HON’BLE MR. MIHIR KUMAR JHA O R D E R (02.12.2010) T. Meena Kumari & Mihir Kumar Jha, JJ. This appeal arises out of an order dated 28.4.2008 passed by the learned single Judge in contempt application MJC No. 1359 of 2005 emanating from a writ application C.W.J.C. No. 10492 of 2003 filed by the respondent no.1 (hereinafter to be referred to as ‘the writ petitioner’). 2. Mr. Navin Prakash, learned counsel for the appellants, the two officials of the Bihar State 2 Electricity Board (hereinafter to be referred to as ‘the BSEB’) has submitted that the stamp report with regard to the maintainability of this appeal is not correct, inasmuch as, whenever an order is passed in a contempt application by way of additional directions well beyond the subject matter of the writ application, the writ appeal including a Letters Patent Appeal will be maintainable. In this context, he refers to the judgment of the Apex Court in the case of Director of Education, Uttranchal & Ors. Vs. Ved Prakash Joshi & Ors. reported in 2005(3) PLJR 239(SC) and in the case of Midnapore Peoples’ Coop. Bank Ltd. & Ors. Vs. Chunilal Nanda & Ors. reported in 2006(5) SCC 399. 3. Having regard to the law laid down by the Apex Court in the aforementioned two judgments, we are satisfied that this appeal is maintainable. 4. Coming to the merits of this case, Mr. Prakash has submitted that the direction given by the learned single Judge in the impugned order with regard to the payment of arrears of salary of the writ petitioner is wholly beyond the scope of the order dated 26.9.2003 in CWJC No. 10492 of 2003, inasmuch as, the said writ application was confined only to the payment of retirement benefit of the 3 writ petitioner, an employee of the Board. He has accordingly submitted that any direction for payment of salary in the resultant contempt application filed by the writ petitioner would be well beyond the scope of contempt application and thus unsustainable in law. He has also submitted that even in case this Court would uphold such direction for payment of salary to the respondent writ petitioner as directed by the learned single Judge in the impugned order, the same, in view of the order of the Apex Court as also Jharkhand High Court, has to be carried out by the JSEB and not B.S.E.B., inasmuch as, the respondent writ petitioner at the material point of time on or before the date of his retirement was working only within the territorial jurisdiction of the JSEB. In this context, he has referred to an order dated 12.12.2008 in WP(S) No. 4167 of 2005 passed by Jharkhand High Court in the case of Shashi Bhushan Prasad Vs. Bihar State Electricity Board, Patna & Ors. 5. Per contra, Mr. R.K. Sinha, learned counsel for the respondent writ petitioner, while supporting the impugned order, has submitted that the learned single Judge was absolutely justified in 4 noticing the subsequent event and the directions given to the B.S.E.B. for payment of the admitted amount of salary and emoluments of the writ petitioner, the retired employee of the Board, cannot be faulted either on fact or in law. 6. Mr. Satyabrat Verma, learned counsel for the J.S.E.B. has submitted that the direction given by the learned single Judge for payment of salary, being well beyond the scope of the contempt application and the connected writ application filed by the respondent writ petitioner, cannot be sustained in law but then he has also pointed out that as the respondent writ petitioner was drawing his monthly pension from the BSEB, the resultant direction given in the impugned order for payment of salary to the BSEB, if withheld by this Court, has to be also complied by the BSEB alone. 7. In the considered opinion of this Court, the impugned order passed by the learned single Judge in the connected contempt application seems to be well beyond the scope of the writ application filed by the writ petitioner, inasmuch as, in CWJC No. 10492 of 2003 his claim was confined only to payment of retirement benefit as would be evident from the order dated 26.9.2003 disposing of the writ 5 application of the writ petitioner along with fifteen other similarly writ applications confined to the claim for payment of retiral dues/death cum retiral dues. For the sake of clarity, the order dated 26.9.2003 in the writ application of the respondent writ petitioner, is quoted hereinbelow:- “In all these writ petitions the grievance of the petitioners relates to retiral dues/death- cum-retiral dues, which have not been redressed even after filing of the writ petition. However, having regard to the order dated 19.9.2003 disposing of several writ petitions bearing C.W.J.C. No. 7054 of 2003 and analogous cases by common order, this Court considers it expedient to dispose of these writ petitions also in terms of the directions given in the said order with only modification that two paragraphs affidavit personally sworn by the concerned authority must be filed by 3rd November, 2003. Parties will be bound by the said direction and they should proceed in the matter accordingly.” 8. In the connected contempt application, which was filed by the writ petitioner alleging non- compliance of the aforesaid order, a grievance was initially made only with regard to the payment of revised pension and payment of revised gratuity but, in a letter supplementary affidavit filed by him during the pendency of this contempt application, he had gone to claim also payment of salary as per revised scale of pay with effect from 1.4.1997 to 6 31.12.2000 as also payment of increased dearness allowance along with arrears for the same period. In the show-cause filed by the BSEB in the contempt application, it was clearly pointed out that the pension of the respondent writ petitioner had already been sanctioned and the arrears of pension and gratuity had also been paid. A further plea was taken that even the other post retirement benefit including leave encashment and GSS had also been paid to the respondent writ petitioner and, therefore, the BSEB was not liable to pay the arrears of salary for the period April 1997 to December 2000 to the respondent writ petitioner as he had been discharging his duty prior to his retirement only within the territorial jurisdiction of the JSEB for which there was an agreement between the two Boards for payment by the respective Board from whose jurisdiction the person concerned while working had superannuated. A plea in fact was also taken that the scope of the contempt application could not be enlarged by the writ petitioner by including the claim for payment of salary which was not the subject matter of the connected writ application CWJC No. 10492 of 2003. The learned single Judge, however, in the last paragraph of the 7 impugned order, has gone to hold as follows:- “6. I am unable to appreciate the distinction between pre and post retiral dues as explained by the counsel for the Bihar Board as according to me once the employee has retired whatever emoluments which form part of the pre/post retiral dues should be paid by the Board where the employee is drawing his pension. Such direction has also been issued by the Ministry of Power to make payment of the retiral dues by the Board where the employee was drawing his pension on 1.4.2001. In the circumstances Bihar Board should also pay the petitioner arrears of difference of salary for the aforesaid period between 1.4.1997 to 31.10.2000 and thereafter will be at liberty to realize the amount from the Jharkhand Board if otherwise permissible in law. The bill of the petitioner for the aforesaid period between 1.4.97 to 31.10.2000 be sent by the authorities of the Jharkhand Board to the Bihar Board, if not already sent within a period of one month from today and thereafter entire payments including the gratuity in revised scale and arrears of difference of salary be paid to the petitioner within a period of two months.” 9. In he opinion of this Court, once this position is admitted that the writ application was not in any way concerned with the payment of salary of Respondent-writ petitioner and the relief claimed 8 therein by him was confined only to the payment of post retirement benefit as is also evident from reading of the original contempt application, it has to be necessarily held that there ought to have been no adjudication as with regard to the payment of his salary much less a direction to the BSEB and its officials including the appellants for making payment of salary to the respondent writ petitioner. The order of the learned single Judge in the writ application as noted above was only with regard to the payment of post retirement benefit and, therefore, any other benefit including payment of salary could not have been made the subject matter of the contempt application. The view taken by the learned single Judge that there was no justification in making a distinction between the pre and post retirement dues and all the dues of an employee after his retirement becomes post retirement benefit is too wide proposition and is not sound in law. The post retirement benefits of an employee invariably means and extends to payment of pension, gratuity, leave encashment, provident fund, GSS etc. and in no view of the matter in its widest sweep would also include payment of salary and emolument for the period prior to the date of retirement of the 9 employee. Thus once we have come to this conclusion that the writ application was filed by the Respondent- writ petitioner only for post retirement benefit, we must hold that the direction given by the learned single Judge in the contempt application filed by the Respondent writ petitioner was well in excess of the original order passed in the writ application of the petitioner. 10. By now, it is well settled that in a contempt application, it is not open to the court to enlarge the scope of original writ petition while passing an order in the contempt petition. Reference in this connection may be made to the judgment of the Apex Court in the case of State of J & K Vs. Sayeed Zaffar Mehdi reported in 1997(9)SCC 640. The provision of Contempt of Court Act, 1971 (hereinafter to be referred to as ‘the Act’) itself defines and limits the power of the High Courts to punish for contempt of Courts. ‘Contempt of Court’ has been defined under Section 2(a) of he Act to mean ‘Civil Contempt’ or ‘Criminal Contempt’ and ‘Civil Contempt’ has been defined under section 2(b) of the Act to mean willful disobedience to any judgment, decree, direction, order, writ or other process of a Court or willful breach of an 10 undertaking giving to a Court. If, therefore, it is alleged before the High Court that a person has willfully violated its order, it can invoke its jurisdiction under the Act to enquire whether the allegation is true or not and if found true, it can punish the offenders for having committed ‘Civil Contempt’ and if need be, can pass consequential orders for enforcement and execution of the order, as the case may be, for violation of which, the proceeding for contempt was initiated. In other words, while exercising its powers under the Act in respect of Civil Contempt, the Court’s enquiry is limited to the question whether its order has been willfully disobeyed or not. While exercising its powers under the Act, it is therefore not open to the Court to pass an order, which will materially add to or alter the order for alleged disobedience of which its contempt jurisdiction was invoked. 11. Thus in the light of the aforesaid well settled principle, there is no escape from the conclusion that the learned Judge went beyond his jurisdiction in passing the order under appeal. By the order disposing of the writ petition, the learned Judge had directed the Board to make payment of post retiral benefit of the writ petitioner. The 11 Board had also taken a stand in its show-cause that all the post retirement benefit of the petitioner had already been paid but the direction given in the impugned order now to also pay the arrears of salary to the petitioner would mean that he has got more relief than what he had got in the writ jurisdiction. Such direction was beyond the power of the High Court in the contempt petition. The proper recourse for the writ petitioner was to take steps in accordance with law for redressal of a fresh and new grievance and not to press the same in the contempt application. 12. This would also bring to us the second aspect of the impugned order as with regard to the direction for payment of salary and emoluments with arrears to the Respondent writ petitioner both B.S.E.B. and J. S. E. B. had seriously disputed their liability for payment of salary of the respondent writ petitioner. In this context, we must take note of the decision of the Jharkhand High Court in the case of Shashi Bhushan Prasad (supra) where a similar question was decided after noticing similar stand taken by the two Boards. The learned single Judge of the Jharkhand High Court infact having considered the earlier litigation on this 12 very point which had gone to the Apex Court in SLP(C) No. 8618 of 2006, disposed of on 1.12.2006 in the light of the decision taken by the Government of India in the Ministry of Power dated 3.11.2006, had held the JSEB was liable to make payment of salary and emoluments of such employee who was working within the territorial jurisdiction of JSEB in the following terms:- “10. As would appear from the above facts, the B.S.E.B. has acknowledged its liability to pay to the petitioner the Gratuity and the unutilized leave encashment amount. As regards the petitioner’s remaining claim for payment of arrears of duty pay in the revised pay scale to the tune of Rs. 1,95,691.95 Paise, which claim amounts to claim for arrears of salary, considering the terms of agreement between the B.S.E.B. and the J.S.E.B. and the settlement made by the Central Government vide its decision dated 03.11.2006, the liability to pay the arrears of salary should squarely fall upon the J.S.E.B. since the petitioner had retied while working at the Patratu Thermal Power Station, Patratu, Hazaribagh, which now falls within the territorial jurisdiction of the State of Jharkhand. 11. Mr. Rajendra Krishna, learned counsel for the Respondents-J.S.E.B. would submit that a direction to the J.S.E.B. to pay the arrears of salary would entail extreme inconvenience both to the 13 J.S.E.B. as well as to the B.S.E.B. since the matter would not remain confined only to the petitioner because several other such retired employees have also staked their claim for payment of arrears of salary. Learned counsel explains that since such retired employees by their option have been receiving payment of pension from the B.S.E.B., their service records have been retained by the B.S.E.B. and it would be very inconvenient to call for all such service records only for the purpose of calculating the arrears of salary on the revised pay-scales in respect of each such employee. 12. The above argument of the learned counsel for the J.S.E.B. does not appear to be persuasive. Since the matter involves only the calculation of the arrears on the revised scales and the number of claimants being not alarmingly high, the service records of all such retired employees, who have submitted their respective claim for payment of the arrears of salary on the revised pay-scale, may be obtained by the Respondent-J.S.E.B. from the office of the B.S.E.B. and after computing the payable amounts, would return the service records to the office of the B.S.E.B. Alternatively, with the cooperation of the concerned authorities of the B.S.E.B., such calculation may be made by the B.S.E.B. and authenticated statements of the amounts calculated in respect of each of the retired employees 14 may be forwarded to the concerned authorities of the J.S.E.B. and on receipt of the same, the J.S.E.B. would release the payments to the retired employees including the petitioner. Since the Respondent-J.S.E.B. is liable to pay the amounts of arrears of salary on the revised pay-scale to the petitioner, it is directed that the Respondent-J.S.E.B. shall complete the modalities and ensure that the payment is released to the petitioner within a period of four months from the date of this order. 13. There is no dispute in the present case that the respondent writ petitioner had worked and retired from service from Chakradharpur, which falls within the jurisdiction of JSEB and thus, placing reliance on the aforementioned observations and direction of the Jharkhand High Court in the case of Shashi Bhushan Prasad (supra), we are of the considered opinion that the direction issued by the learned single Judge in the impugned order even otherwise cannot be sustained. 14. In the result, this appeal is allowed and the impugned order is accordingly set aside. The respondent writ petitioner, however, would be at liberty to move the appropriate authority in the appropriate forum for redressal of his grievance 15 relating to payment of salary and liberty is also granted to him to avail the remedy open to him before the High Court of Jharkhand, if so desired. Patna High Court Dated 2nd December, 2010 A.F.R./Kanchan/rishi (T. Meena Kumari, J.) (Mihir Kumar Jha, J.)