IN THE HIGH COURT OF JUDICATURE AT MADRAS (CONTEMPT JURISDICTION) WEDNESDAY THE 22ND DAY OF OCTOBER 2008 THE HON'BLE MR.ASOK KUMAR GANGULY, THE CHIEF JUSTICE AND THE HON'BLE MR.JUSTICE P.JYOTHIMANI CONTEMPT PETITION No.820 of 2008 ************ K.V.Mohan Doss, Deputy Commissioner of Customs, Customs House, Chennai. ... Petitioner Vs P.V.Bhide, The Revenue Secretary to the Govt.of India, Department of Revenue, North Block, New Delhi. ... Respondent Contempt Petition praying that this Court be pleased to punish the respondent for disobeying the order of this Hon'ble Court in W.P.No.39583 of 2005 dated 21/04/2006 and Cont.Petition No.342 of 2007 dated 30/07/2007. The above Contempt Petition coming on this day before this Court for hearing in the presence of Mr.Sundar Mohan, Advocate for the petitioner herein; and of Mr.M.Ravindran, Additional Solicitor General of India assisted by Mr.A.S.Vijayaraghavan, Additional Central Govt.Standing Counsel for the respondent herein; and upon reading the https://hcservices.ecourts.gov.in/hcservices/ 2 petition and affidavit of K.V.Mohan Doss, filed herein; the Court made the following order:- Heard learned counsel for the parties. 2. This Contempt Petition has been filed by one K.V.Mohan Doss, who is presently working as a Deputy Commissioner, Central Excise, Chennai. The writ petition was filed by the Chennai Customs Appraising Officers Association. The said writ petition was numbered as W.P.No.39583 of 2005 and was heard along with some other writ petitions. Ultimately, an order was passed by the Division Bench of this Court on 21.4.2006 giving certain directions. The concluding directions, which are sought to be enforced in this Contempt Petition, were reached in paragraph 50(A) and 50(B) of the order in W.P.No.39583 of 2005 and are set out below: "50(A) Promotees who had been regularised by December, 1987 should be in the seniority list on the basis of continuous officiation. (B) Ad hoc promotees within permissible 50%, who were regularised after 1988 Rules came into force can claim seniority from the date of their ad hoc promotion, provided their selection was otherwise in accordance with the 1961 rules. However, ad hoc promotees 2 https://hcservices.ecourts.gov.in/hcservices/ 3 promoted before December, 1987 in excess of maximum permissible 50% of the post, on their subsequent regularisation after 1988 Rules came into force can claim seniority from the date of regular promotion and not from the date of their ad hoc promotion." 3. The Union of India filed an appeal against the said order. During the pendency of the appeal, a Contempt Petition was filed for enforcing the said order. In that Contempt Petition a stand which was taken by the Central Government was that there is no delay in implementing the orders of the Court, but in view of the pendency of Special Leave Petition in the Supreme Court, the matter has remained pending. Another stand which was also taken before this Court on behalf of the Union of India, was that they would try to obtain necessary permission from the Hon'ble the Supreme Court to implement the order of the High Court by clearly indicating that such implementation of the order is subject to the result of the Special Leave Petition pending before the Hon'ble the Supreme Court. This has been recorded in the order of the Division Bench of this Court dated 30.7.2007. Now it appears that the Special Leave Petition has been dismissed by the Hon'ble the Supreme Court by order dated 16.5.2008. In paragraph 3 https://hcservices.ecourts.gov.in/hcservices/ 4 41 of the judgement, the learned Judges were pleased to observe the following: "We, therefore, do not find any apparent illegality in the judgment of the High Court. As we have interpreted the 1961 Rules on the touchstone of the decision of High Court in Gaya Baksh Yadav (supra), we do not think it necessary to deal with the individual submissions of the learned counsel for the parties." 4. Learned counsel for the alleged contemnor has filed an additional affidavit in this matter. In the said additional affidavit, they have enclosed an order dated 15.10.2008 whereby seniority of the present petitioner has been allegedly fixed on and from 1.4.1987 which is the date of regular appointment. It may be true that the said fixation of seniority has been challenged by the petitioner in a separate proceeding. But in this case, we are concerned with the question whether Contempt proceedings will lie at the instance of the petitioner who is admittedly a member of the said Association, for enforcing the judgment rendered by the Division Bench of this Court which has now become final in view of the dismissal of Special Leave Petition, by a detailed and reasoned order. Answer to the above said question is obviously in the affirmative. 4 https://hcservices.ecourts.gov.in/hcservices/ 5 5. This is a case of civil contempt, which has been defined under Section 2(b) of the Contempt of Courts Act. Civil contempt is said to be remedial in nature. In the case of Kapildeo Prasad Sah v. State of Bihar, reported in 1999 (7) SCC 569, the Hon'ble Supreme Court held that power to punish for contempt is necessary for maintenance of the effective legal system and is exercised to prevent perversion in the course of justice. Though initiation of contempt proceedings is not a substitute for execution proceedings, but at times, that purpose namely, execution of an order may also be achieved. (See paragraphs 9 & 10 at page 573 & 574 of the report). 6. Oswald in his Law of Contempt also held that in a contempt application, the Court is entitled to take a lenient view and instead of making an order for committal may pass an order of injunction. (Contempt of Court, 3rd Edition, page 16). Similar views have been expressed in Halsbury's law of England (Volume 9, 4th Edition, para.100). The relevant observations are as follows: - "As a further alternative to ordering committal the Court may, in its discretion, adopt the more lenient course of granting an injunction to restrain repetition of the act of contempt" 5 https://hcservices.ecourts.gov.in/hcservices/ 6 Therefore, the Courts power to pass incidental or ancillary orders in the contempt proceedings is not disputed, especially when under Article 215 of the Constitution of India, the High Court has been recognised as a Court of record with inherent power to punish for contempt of itself. 7. In the case of Noorali Babul Thanewala v. K.M.M.Shetty reported in 1990 (1) SCC 259, the learned Judges of the Supreme Court held that civil contempt remedy may be in the form of a direction to the contemnor to purge the contempt or sentence him to imprisonment or fine or all of them. (See paragraph 11 at page 266 of the report.) 8. In the instant case, the order passed by Division Bench has been upheld by the Supreme Court and has therefore, become final. If a person, who is entitled to the benefit under the said order, finds that the order of this Court is not properly implemented, he has an independent right to initiate Contempt proceedings for enforcing the Court's order. 9. In the instant case, admittedly, the direction contained in paragraph 50(A) and 50(B) of the order in W.P.39583 of 2005 about fixation of seniority of the 6 https://hcservices.ecourts.gov.in/hcservices/ 7 petitioner has not been carried out. In our view, from a perusal of paragraph 50(A) of the said order, it is clear that the petitioner is a promotee who had been regularised by December, 1987 should be in the seniority list on the basis of is continuous officiation. In the contempt petition it has been stated by the petitioner in paragraph 6 that he was promoted as an appraiser on 7.3.1983 and was regularised with effect from 1.4.1987, and, as an appraiser, was within 50 per cent quota meant for promotees. These facts are not disputed by the respondents. Nor is it disputed that the petitioner being promoted as an appraiser on 7.3.1983 has been regularly officiating in the said post. 10. Learned counsel for the alleged contemnor submitted that the petitioner's appointment has been made beyond 50 per cent quota meant for promotees. This is a question of fact, but there is no such averment in the counter-affidavit which has been filed in this case, by the alleged contemnor and the petitioner's assertion to the contrary has not been denied at all. 11. That being the position, this Court holds that fixation of seniority shown in the order dated 15.10.2008 in so far as the petitioner is concerned, is not correct. The seniority of the petitioner must be counted with effect from his officiating appointment on 7.3.1983 in terms of 7 https://hcservices.ecourts.gov.in/hcservices/ 8 the judgment of the Division Bench referred to above which has been upheld by the Hon'ble the Supreme Court referred to above. The respondents are therefore, directed to refix the petitioner's seniority on the aforesaid basis within a period of two weeks from today. Contempt Petition is thus disposed of. Miscellaneous petition is closed. Witness the Hon'ble Thiru ASOK KUMAR GANGULY, the Chief Justice of High Court at Madras, as aforesaid, this the 22nd day of October, 2008. DEPUTY REGISTRAR (OS) //Certified to be true copy// Dated at Madras this the day of 2008. COURT OFFICER(O.S.) From 25th Day of September 2008 the Registry is issuing certified copies of the Orders/Judgments/Decrees in this format. 8 https://hcservices.ecourts.gov.in/hcservices/ cns. CONTEMPT PETITION No.820/2008 THE HON'BLE MR.CHIEF JUSTICE AND THE HON'BLE MR.JUSTICE P.JYOTHIMANI ORDER DATED : 22/10/2008 FOR APPROVAL :24/10/2008 APPROVED ON :24/10/2008 9 https://hcservices.ecourts.gov.in/hcservices/ 10 https://hcservices.ecourts.gov.in/hcservices/