STATE OF BIHAR & ORS. versus MEERA TIWARY & ANR.
[2019] 12 S.C.R. 915, Supreme Court of India, 2019
Outcome: Dismissed (Dismissed)
Segment: Ratio
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STATE OF BIHAR & ORS.
v.
MEERA TIWARY & ANR.
(Civil Appeal No.9750 of 2010)
JUNE 11, 2019
[INDIRA BANERJEE AND AJAY RASTOGI, JJ.]
Contempt of Court – Jurisdiction of High Court – Respondent
No.1’s husband (since deceased) was appointed Junior Engineer
in the Public Works Department on or about 01.08.1958 – He was
promoted to the post of Temporary Assistant Engineer on ad hoc
basis and was thereafter given regular promotion to the post of
Asst. Engineer– In 1995, he retired from service– Died on
30.05.2004 – Till his death, his retiral benefits were not released–
Respondent No.1 filed writ petition for  payment of post-retiral
benefits of her late husband– Vide order dated 21.09.2004, the
authorities were directed to redress her grievances – Contempt
petition filed by the Respondent no.1 – High Court directed the
authorities to finalise the family pension of the respondent no.1
taking into account the notional salary payable to her husband on
the date of his retirement i.e.30.6.1995– On appeal, held: Authorities
were directed to fully redress the grievances of the petitioner, and/
or to release the retiral dues of late husband of the respondent
no.1– 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 Junior Engineer, a lower post – There were two orders
of promotion, the first ad hoc, and the second, of regular
promotion
– Further, after the disposal of the writ petition, in the absence of
any disciplinary proceedings or show cause notice or other material,
it was not open to the authorities 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 allegedly remained absent from duties for a period of 13
years and 10 months– In proceedings for contempt, the High Court
is entitled to pass orders for effective enforcement of an order
violation of which is alleged – High Court merely directed the alleged
[2019] 12  S.C.R. 915
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contemnor 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 Asst. Engineer, the post to which he
was admittedly promoted – High Court did not modify any earlier
order nor did it expand the scope of any earlier order – No ground
to interfere with the judgment of the High Court – Service Law –
Bihar Service Code – rr.58 and 76.
Dismissing the appeal, the Court
HELD: 1.1 Significantly, no show cause notice was ever
issued to the husband of the respondent no.1, 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. Unable to
accept the argument 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 the husband of the respondent no.1 in full.
The dues necessarily had to be computed having regard to the
salary and allowances pertaining to the post which the husband
of the respondent no.1, 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. 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. [Paras 13-15] [921-F-H; 922-A-C]
1.2 It is preposterous that a second order would have been
issued confirming the promotion to the post of Assistant Engineer,
if late husband of the respondent no.1 had not joined the post
pursuant to the earlier order and had remained absent.
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Significantly, there is not a whisper of the exact date from which
late husband of the respondent no.1 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. The High Court directed
release of the retiral dues of the husband of the respondent no.1,
since deceased, in entirety and not in part. 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 the husband of the respondent no.1, 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.  [Paras 16-19] [922-D-H;
923-A]
1.3 The High Court, in effect and substance, found that the
dues on account of the husband of the respondent no.1, since
deceased, should be computed on the basis of the salary pertaining
to the post
of Assistant Engineer to which the husband of the
respondent no.1, since deceased, had admittedly been promoted.
Unable to accept the belated plea of the contemner-respondents
that the husband of the respondent no.1, since deceased, had
remained absent. 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. The High Court did
not modify any earlier order. Nor did it expand the scope of any
STATE OF BIHAR & ORS. v. MEERA TIWARY & ANR.
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earlier order. The High Court only effectively enforced its earlier
order, which it was entitled in law to do. There is no ground at all
to interfere with the judgment and order of the High Court under
appeal.  [Paras 20-23] [923-B-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal No.9750 of
2010
From the Judgment and Order dated 30.05.2007 of the High Court
of Judicature  at Patna in M.J.C. No. 2194 of 2005
Manish Kumar, Gopal Singh, Srikanth S.  Advs. for the Appellants.
Vikramjeet Banerjee, ASG, Debal Banerjee, Sr. Adv., Bankey
Bihari, Kuldeep Sehrawat, Ajay Singh, Ms.Sunita Sharma, Ms. Ruchi
Kohli, Ms. Anil Katiyar,  Advs. for the Respondents.
The Judgment of the Court was delivered by
INDIRA BANERJEE, J.
1. This appeal, filed by the State of Bihar & Others, is against the
judgment and order dated 30.5.2007 passed by the High Court of
Judicature at Patna, disposing of the Contempt Application being MJC
No. 2194 of 2005, filed by the respondent no.1 with a direction to the
competent authority to finalise the family pension due and payable to the
respondent no.1, taking into account the notional salary, which was payable
to her husband on the date of his retirement, that is, 30.6.1995, as early
as possible  and in any case within three weeks from the date of receipt
of a copy of the said order.
2. Shri Amardeo Tiwari, since deceased, husband of the respondent
no.1, was appointed Junior Engineer in the Public Works
Department on
or about 1.8.1958.  He was promoted to the post of Temporary Assistant
Engineer on ad hoc basis, vide departmental notification no. 5973 dated
2.9.1981, which provided that the promotion would be effective from
the date on which he would take charge in the promoted post.
3. By notification no. 9744 dated 20.12.1994, Sh. Amardeo Tiwari,
since deceased, was given regular promotion to the post of Assistant
Engineer w.e.f. 28.11.1979, with the approval of the Bihar Public Service
Commission.
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4. Sh. Amardeo Tiwari, since deceased, retired from service on
or about 30.6.1995, on attaining the age of retirement.   Sh. Amardeo
Tiwari died on 30.5.2004.  It appears that till his death, his retiral benefits
had not been determined or released.
5. On or about 20.09.2004, the respondent no.1, filed a writ petition
being CWJC No. 11497 of 2004 in the High Court praying for a direction
on the concerned authorities to fix and pay the post-retiral benefits of
her late husband.  Apart from the writ petition being CWJC No. 11497
of 2004,many other similar writ petitions were filed praying for similar
reliefs.
6. By a common judgment and order dated 21.9.2004, the High
Court disposed of the writ petition being CJWC No. 11497 of 2004 filed
by the respondent no.1, along with 20 other similar cases.  The order
dated 21.9.2004 is set out herein below for convenience: -
       “In all these writ petitions, the grievance of the Petitioners
relates to retrial sic retiral due/death-cum-retiral dues, which have
not been redressed even after filing of the writ petition.
      However, having regard to the order dated 19.09.2003
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
9th November, 2004. Parties will be bound by the
said direction and they should proceed in the matter accordingly.”
7. Pursuant to the order dated 21.9.2004 in the writ petition CWJC
No. 11497 of 2004 filed by the respondent no.1, whereby  the concerned
authorities were directed to fully redress the grievances of the petitioner,
provisional pension and provisional gratuity were sanctioned to the
respondent no.1 vide memo nos. 1167 and 1168 dated 6.11.2004 issued
by the Executive Engineer, National Highway Division, Chapra, Bihar.
The memos reveal that provisional pension and gratuity were sanctioned
on the basis that Sh. Amardeo Tiwari continued to be a Junior Engineer.
8. By a letter no. Pra-3/M-01/03-253E dated 10.2.2005, the
Engineer-in-Chief-cum-Additional Secretary-cum-Special Secretary,
STATE OF BIHAR & ORS. v. MEERA TIWARY & ANR.
[INDIRA BANERJEE, J.]
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Road Construction Department, Patna, Bihar sanctioned cash payment
of unutilised earned leave of late Sh. Amardeo Tiwari.  The said memo
also showed the designation of Sh. Amardeo Tiwari as retired Junior
Engineer.
9. On or about 29.8.2005, the respondent no.1 filed an application
for contempt being MJC No. 2194 of 2005 for non-compliance by the
alleged contemners of the order dated 21.9.2004 in CWJC No. 11497 of
2004.  After the aforesaid application for contempt was filed, the
Commissioner and Secretary, Road Works Department, Patna, Bihar
passed an order being Memo no. ..3/M-01/03-1908 (3) Patna dated
24.2.2006.  The relevant parts of the said memo are extracted
hereinbelow: -
“Late Shri Amardev Tiwari was in government service at the
post of junior engineer since 01.08.1958.  As per service rules, his
service in the form of junior engineer is verified till 29.02.1980.
He was promoted to the post of Assistant Engineer in the year
1980.  It has been informed by Executive Engineer, National High
Road Sub-division Chapra that late Shri Tivari did not contribute
at the post of Assistant Engineer despite the order/direction in this
regard and remained absent in office, from 16.04.1980 to the date
of his retirement i.e. 30.06.1995, without prior permission from
the office.  After the retirement, he died on 30.05.2004.
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Since late Tivari, after his promotion to the post of Assistant
Engineer, has
remained absent continuously from the office,
without permission, for the period from 16.04.1980 to the date of
his retirement i.e. 30.06.95, therefore, service period of late Tivari
was under the salary of Junior Engineer.  Hence, his pension shall
be fixed on the basis of the same.  The question of pay fixation
for him in terms of salary for Assistant Engineer does not arise
since he has not contributed at the post of Assistant Engineer.”
10. On or about 15.01.2007, the respondent no. 1 filed the contempt
petition being MJC No. 93/2007 complaining that the appellants had
wilfully disobeyed the directions contained in the judgment and order
dated 21.9.2004 of the High Court.   In the proceedings initiated by the
respondent no.1, the alleged contemners contended that the directions
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issued by the High Court on 21.9.2004 had duly been complied with.
The High Court, however, passed the judgment and order impugned in
this appeal, directing the authorities concerned to finalise the family
pension of the respondent no.1 taking into account the notional salary
which was payable to her husband on the date of his retirement i.e.
30.6.1995.
11. The appellants contend that by directing 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
STATE OF BIHAR & ORS. v. MEERA TIWARY & ANR.
[INDIRA BANERJEE, J.]
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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 lateAmardeo 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
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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.
23. In view of the above, we find no ground at all to interfere with
the judgment and order of the High Court under appeal.  Accordingly,
the appeal is dismissed with no order as to costs.
Divya Pandey
                              Appeal dismissed.
STATE OF BIHAR & ORS. v. MEERA TIWARY & ANR.
[INDIRA BANERJEE, J.]