Case: STATE OF BIHAR Vs. MEERA TIWARY

the alleged contemners to finalise the family pension payable to the respondent no.1, on the basis of the notional salary payable to the deceased husband of the respondent no.1 on the date of his retirement, the High Court modified the original judgment and order in the writ petition, for violation of which contempt proceedings were initiated. The appellants also contended that, in terms of the provision of Rule 58(a) of the Bihar Service Code, subject to any exception specifically made in those rules and subject to the provisions of clause (b) of Rule 58(a), a government servant is entitled to draw pay and allowances attached to his post w.e.f. the date on which he assumes duty in that post and ceases to draw such pay and allowances as soon as he ceases to discharge those duties. 12. Mr. Vikramjeet Banerjee, ASG submitted that the High Court had clearly erred in law by expanding the scope of the original order in contempt proceedings and also by overlooking Rule 58 as also Rule 76 of the Bihar Service Code. Rule 58 provides that a government servant, after five years of continuous absence from duty, would cease to be in government employment. 13. Significantly, no show cause notice was ever issued to Sh. Amardeo Tiwari, since deceased, during his lifetime alleging that he had not joined the duties pertaining to the post of Assistant Engineer or had remained absent for a continuous period of five years. Continuous absence of five years would most certainly have attracted disciplinary proceedings. There were no disciplinary proceedings. 14. We are unable to accept the argument of the learned ASG that the High Court modified or expanded the scope of the original order in the writ proceedings in contempt. The concerned authorities were directed to fully redress the grievances of the petitioner, and/or in other words, to release the retiral dues of late Sh. Amardeo Tiwari in full. The dues necessarily had to be computed having regard to the salary and allowances pertaining to the post which Sh. Amardeo Tiwari, since deceased, had held at the time of his retirement. 15. After the disposal of the writ petition, in the absence of any disciplinary proceedings or show cause notice or other material, it is not open to the authorities concerned to deny the respondent no.1 the benefits pertaining to the post to which her husband had been promoted, on the purported ground that he had failed to join the post and had allegedly remained absent from duties for a period of 13 years and 10 months. We cannot, but take notice of the fact that there were two orders of promotion, the first ad hoc, and the second, a regular promotion order, as per the list of dates filed by the appellants along with the appeal. The ad hoc promotion has inadvertently and/or erroneously been referred to as substantive promotion in the list of dates. 16. It is preposterous that a second order would have been issued confirming the promotion to the post of Assistant Engineer, if late Amardeo Tiwari had not joined the post pursuant to the earlier order and had remained absent. Significantly, there is not a whisper of the exact date from which late Amardeo Tiwari allegedly stopped attending to his duties and remained absent. It seems quite absurd that a person promoted on ad hoc basis, who had not been attending to his duties should be promoted on regular basis. It is equally difficult to accept that a person who had been attending to his duties would suddenly stop attending to his duties upon his promotion to a higher post. 17. In proceedings for contempt, the High Court is entitled to pass orders for effective enforcement of an order of which violation is alleged. By the order dated 21.9.2004, the High Court directed the authorities to finalise the retiral dues on account of Shri Amardeo Tiwari, since deceased. The High Court directed release of the retiral dues of Shri Amardeo Tiwari, since deceased, in entirety and not in part. 18. As observed above, the authorities concerned did not finalise the dues, but only sanctioned and/or released provisional gratuity and provisional pension and that too on the basis that Shri Amardeo Tiwari, since deceased, had continued to be a Junior Engineer as on the date of his retirement. 19. It was not open to the appellants to circumvent the order passed by the High Court and release provisional pension and gratuity and that too calculated in relation to the salary and emoluments of a lower post. 20. The High Court, in effect and substance, found that the dues on account of Shri Amardeo Tiwari, since deceased, should be computed on the basis of the salary pertaining to the post of Assistant Engineer to which Shri Amardeo Tiwari, since deceased, had admittedly been promoted. Unable to accept the belated plea of the contemner- respondents that Shri Amardeo Tiwari, since deceased, had remained absent, the High Court directed that the family pension be computed taking into account the notional salary payable to an Assistant Engineer on the date of retirement, which was 30.6.1995. 21. Words and/or phrases in a judgment cannot be read as ?Euclid?s Theorems? and in any case not out of context to hold that the High Court modified its earlier order by directing the alleged contemner to take into account the notional salary payable to the respondent no.1?s husband on the date of his retirement. The High Court merely directed the alleged contemner to finalise the dues payable to the respondent no.1 having regard to the salary that should have been payable to her husband on the date of his retirement as Assistant Engineer, the post to which he was admittedly promoted. 22. In our view, the High Court did not modify any earlier order. Nor did the High Court expand the scope of any earlier order. The High Court only effectively enforced its earlier order, which it was entitled in law to do.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]14. We are unable to accept the argument of the learned ASG that the High Court modified or expanded the scope of the original order in the writ proceedings in contempt. The concerned authorities were directed to fully redress the grievances of the petitioner, and/or in other words, to release the retiral dues of late Sh. Amardeo Tiwari in full. The dues necessarily had to be computed having regard to the salary and allowances pertaining to the post which Sh. Amardeo Tiwari, since deceased, had held at the time of his retirement.After the disposal of the writ petition, in the absence of any disciplinary proceedings or show cause notice or other material, it is not open to the authorities concerned to deny the respondent no.1 the benefits pertaining to the post to which her husband had been promoted, on the purported ground that he had failed to join the post and had allegedly remained absent from duties for a period of 13 years and 10 months. We cannot, but take notice of the fact that there were two orders of promotion, the first ad hoc, and the second, a regular promotion order, as per the list of dates filed by the appellants along with the appeal. The ad hoc promotion has inadvertently and/or erroneously been referred to as substantive promotion in the list of dates.It is preposterous that a second order would have been issued confirming the promotion to the post of Assistant Engineer, if late Amardeo Tiwari had not joined the post pursuant to the earlier order and had remained absent. Significantly, there is not a whisper of the exact date from which late Amardeo Tiwari allegedly stopped attending to his duties and remained absent. It seems quite absurd that a person promoted on ad hoc basis, who had not been attending to his duties should be promoted on regular basis. It is equally difficult to accept that a person who had been attending to his duties would suddenly stop attending to his duties upon his promotion to a higher post.In proceedings for contempt, the High Court is entitled to pass orders for effective enforcement of an order of which violation is alleged. By the order dated 21.9.2004, the High Court directed the authorities to finalise the retiral dues on account of Shri Amardeo Tiwari, since deceased. The High Court directed release of the retiral dues of Shri Amardeo Tiwari, since deceased, in entirety and not in part.As observed above, the authorities concerned did not finalise the dues, but only sanctioned and/or released provisional gratuity and provisional pension and that too on the basis that Shri Amardeo Tiwari, since deceased, had continued to be a Junior Engineer as on the date of his retirement.It was not open to the appellants to circumvent the order passed by the High Court and release provisional pension and gratuity and that too calculated in relation to the salary and emoluments of a lower post.The High Court, in effect and substance, found that the dues on account of Shri Amardeo Tiwari, since deceased, should be computed on the basis of the salary pertaining to the post of Assistant Engineer to which Shri Amardeo Tiwari, since deceased, had admittedly been promoted. Unable to accept the belated plea of the contemner- respondents that Shri Amardeo Tiwari, since deceased, had remained absent, the High Court directed that the family pension be computed taking into account the notional salary payable to an Assistant Engineer on the date of retirement, which was 30.6.1995.Words and/or phrases in a judgment cannot be read as ?Euclid?s Theorems? and in any case not out of context to hold that the High Court modified its earlier order by directing the alleged contemner to take into account the notional salary payable to the respondent no.1?s husband on the date of his retirement. The High Court merely directed the alleged contemner to finalise the dues payable to the respondent no.1 having regard to the salary that should have been payable to her husband on the date of his retirement as Assistant Engineer, the post to which he was admittedly promoted.In our view, the High Court did not modify any earlier order. Nor did the High Court expand the scope of any earlier order. The High Court only effectively enforced its earlier order, which it was entitled in law to do.