Md. Abbas Mohideen v. Vijay Singh & Ors.

2Mr.B.Shanthakumr, Senior Counsel for Central Government forthe respondents herein; and upon reading the petition andaffidavit of Md.Abbas Moideen, herein; and the affidavit ofBS.Yadav, filed herein; and the counter affidavit,additional affidavit of Vice Admiral Anil Chopra, filedherein; and reply affidavit of Md.Abbas Moideen, filedherein; the Court made the following order:-This is an application taken out under section 11 ofthe Contempt of Courts Act, by innocuously couching theprayer as follows : "....to issue notice to the respondents fortheir willful disobedience of the order passed bythis Honourable Court in writ appeal No.487 of 2008dated 10.02.2009."2. The brief facts which culminated in the filing ofthe contempt petition are as follows :The petitioner herein filed a writ petition in W.P.No.36674 of 2003 seeking for the relief of writ ofcertiorari to call for the records of the Coast Guard Courtconstituted by the second respondent - Director General,Coast Guard Headquarters, National Stadium Complex, NewDelhi, in connection with the proceedings of the CoastGuard Court dated 29.10.2003 by which the petitioner wasdismissed from service and quash the same. The said writpetition was allowed by setting aside the order dated https://hcservices.ecourts.gov.in/hcservices/

329.10.2003 impugned therein. The respondents hereincarried the matter on appeal in writ appeal No.487 of 2008.The Division Bench confirmed the order of the learnedsingle Judge. The said order was passed on 10.02.2009.While dismissing the writ appeal, the appellants thereinwere directed to reinstate the contempt petitioner with allconsequential benefits, as if there was never any order ofdismissal against him, within 8 weeks from the date of theorder. On that premise, after passing of the order dated10.02.2009, the petitioner caused a lawyer's noticerequiring the respondents herein to comply with the orderof the Division Bench in the Writ Appeal. Again on13.02.2009, the petitioner sent a representation, which wasacknowledged by the fourth respondent, followed by anotherrepresentation on 06.04.2009, but the respondents hereinhave not complied with the order dated 10.02.2009 despitethe expiry of the time limit stipulated therein. Therespondents have showed scant respect to the order passedby this Court, which act of the respondents is punishableunder the Contempt of Courts Act. With the aboveaverments, this contempt petition has been filed to issuenotice to the respondents under the Contempt of Courts Actfor their willful disobedience of the order of this Courtdated 10.02.2009. After issuance of contempt notice, therespondents filed a counter affidavit, in which, beforetraversing into the allegations contained in the affidavit https://hcservices.ecourts.gov.in/hcservices/ 4filed in support of the contempt petition, the respondenthas tendered the unconditional apology, which reads asfollows :"I submit that I have not done and will not doanything that even indirectly could amount todisobedience of any order of this Honourable Court.In the event of this Honourable Court after takinginto consideration of my explanation and the factson record, forms an opinion to be of contempt, Isincerely tender my unconditional apology beforethis Honourable Court".3. It is averred in the counter affidavit that inobedience to the order passed by this Court, on 22.04.2009,the petitioner was reinstated. The Board has recommendedthat the petitioner may be considered afresh for promotionto the rank of Commandant (Junior Grade) by the nextPromotion Board to be held in 2010 based on his AnnualConfidential Report for the year 2009 which will cover theperiod subsequent to his reinstatement in service, that theextract from the proceedings of the said promotion Boardheld on 20.07.2009 has been communicated to the petitionerthrough Coast Guard Regional Headquarters (East), Chennaiunder CGHQ letter OF/1185 dated 21.07.2009. When thepetitioner has been reinstated in service, an interimpayment of Rs.1.00 lakhs has been paid to meet the domesticrequirements, payment of cash in lieu of rations for the https://hcservices.ecourts.gov.in/hcservices/ 5period from 31.10.2003 till 21.04.2009 has also been made.He has been promoted to the rank of Deputy Commandant witheffect from 27.12.1996 as per the recommendations kept insealed cover by the DPC held in 1996. Further steps weretaken for payment of difference of arrears of pay andallowances in his capacity as Deputy Commandant of CoastGuard and would be paid soon after receipt of intimationfrom the Controller of Defence Accounts (Navy), Mumbai. Therespondents took all follow up action sincerely, and theorder dated 10.02.2009 was complied with in accordance withlaw. There was no intention on the part of the respondents,either willful or wanton, even indirectly to disobey theCourt order under any circumstance. 4. In addition to that, it was also brought to thenotice of the Court, that on 29.07.2009, the petitioner hasfiled another writ petition in W.P. No.16771 of 2009,seeking for issuance of writ of certiorarified mandamuscalling for the records relating to the order passed by thesecond respondent on 21.07.2009 and its consequentialorder No.AD/100 dated 27.07.2009 passed by the thirdrespondent and quash the same and consequently direct thesecond respondent to promote the petitioner as DeputyCommandant w.e.f. December, 1995 and as Commandant(Selection Grade) with effect from August 2002 along withthe XII Batch and pay all consequential and other benefits https://hcservices.ecourts.gov.in/hcservices/ 6arising therefrom. 5. In the above said factual matrix, when the matterwas taken up for orders, the petitioner who enteredappearance through a counsel, submitted today morning thathe is appearing as party in person and argued the case.6. The case of the petitioner is that he was not givenproper promotion and the amount due to him has also notbeen paid within the period stipulated in the order made inwrit appeal. From the counter affidavit, in paragraphs 6and 7, it could be seen that the Board has recommended thepetitioner's promotion to the rank of Commandant (JuniorGrade) by the next Promotion Board to be held in 2010 basedon his Annual Confidential Report for the year 2009 whichwill cover the period subsequent to his reinstatement inservice, which was communicated to the petitioner throughCoast Guard Regional Headquarters (East), Chennai underCGHQ letter OF/1185 dated 21.07.2009. It is also seen thatan interim payment of Rs.1.00 lakhs has been paid to meetthe domestic requirements, payment of cash in lieu ofrations for the period from 31.10.2003 till 21.04.2009 hasalso been made. He has been promoted to the rank of DeputyCommandant with effect from 27.12.1996 as per therecommendations kept in sealed cover by the DPC held in1996. It is also stated that further payment of difference https://hcservices.ecourts.gov.in/hcservices/ 7of arrears of pay and allowances would also be paid to himsoon in his capacity as Deputy Commandant of Coast Guardsoon after receipt of intimation from the Controller ofDefence Accounts (Navy), Mumbai. 7. Hence, we are of the view that the respondents aretaking proper steps and complied with the order of thisCourt. The action taken by the respondents, as exhibitedfrom the counter affidavit, shows that they are followingthe procedure, though with some delay, which cannot beregarded as a deliberate and intentional floating of theorder passed by this Court.8. The promotion to the higher post, as sought for inthe writ petition filed by the petitioner, is a separatecause of action by itself. The petitioner also rightlythought it fit to file the writ petition as the reliefsought for is a separate cause of action de hors the reliefsought for in the writ petition filed seeking to quash theorder of dismissal from service. When that being thefactual position, he cannot maintain this contemptproceedings, as the factual averment made in the counteraffidavit belied the contention of the petitioner that therespondents willfully, contumaciously and deliberatelyflouted the order of this Court with scant respect.9. Having appraised of the facts as stated above, we https://hcservices.ecourts.gov.in/hcservices/ 8just remind ourselves of the contempt jurisdiction : Whiledealing with the application for contempt, the court isreally concerned with the question whether the earlierdecision which has received its finality had been compliedwith or not. The Court cannot expand or go beyond theorder of the Court. The Court exercising contemptjurisdiction is primarily concerned with the question ofcontumacious conduct of the party who is alleged to havecommitted default in complying with the directions in thejudgment or order. (vide Union of India v. Subedar DevassyPV, 2006 AIR SCW 342 and K.G. Derasari v. Union of India,2001 (10) SCC 496.) 10. The Court exercising contempt jurisdiction is notentitled to enter into questions which have not been dealtwith and decided in the judgment or order, violation ofwhich is alleged by the applicant. The court has toconsider the direction issued in the judgment or order andnot to consider the question as to what the judgment ororder should have contained. If the judgment or order doesnot contain any specific direction regarding a matter or ifthere is any ambiguity in the directions issued thereinthen it will be better to direct the parties to approachthe court which disposed of the matter for clarification ofthe order instead of the court exercising contemptjurisdiction taking upon itself the power to decide the https://hcservices.ecourts.gov.in/hcservices/ 9original proceeding in a manner not dealt with by the courtpassing the judgment or order. 11. In a similarly placed circumstance, in the case of Jhareswar Prasad Paul v. Tarak Nath Ganguly,(2002) 5 SCC352, on an order passed by the High Court directing thatthe petitioners therein should be given the benefit ofpromotion and consequential financial benefits envisagedunder the Government Order, but not containing specificdirection for preparation of combined seniority listincluding the petitioners, the petitioners, not satisfiedwith implementation of the said order of the High Court,filed contempt petition against the respondents. HighCourt passed orders directing the respondents/contemnors tointroduce a common gradation list and thereby grantedsubstantive relief. When questioned before the SupremeCourt, it held that the same was without jurisdiction withan observation that such a dispute can only be determinedon consideration of all relevant aspects of the matter andcannot be and should not be ordered in the summaryproceeding for taking action for contempt of court. TheCourt further explained the contempt jurisdiction asfollows : "The purpose of contempt jurisdiction is to upholdthe majesty and dignity of the courts of law, sincethe respect and authority commanded by the courts oflaw are the greatest guarantee to an ordinary https://hcservices.ecourts.gov.in/hcservices/ 10citizen and the democratic fabric of society willsuffer if respect for the judiciary is undermined.The Contempt of Courts Act, 1971 has been introducedunder the statute for the purpose of securing thefeeling of confidence of the people in general fortrue and proper administration of justice in thecountry. The power to punish for contempt of courtis a special power vested under the Constitution inthe courts of record and also under the statute. Thepower is special and needs to be exercised with careand caution. It should be used sparingly by thecourts on being satisfied regarding the true effectof contemptuous conduct. It is to be kept in mindthat the court exercising the jurisdiction to punishfor contempt does not function as an original orappellate court for determination of the disputesbetween the parties. The contempt jurisdictionshould be confined to the question whether there hasbeen any deliberate disobedience of the order of thecourt and if the conduct of the party who is allegedto have committed such disobedience is contumacious.The court exercising contempt jurisdiction is notentitled to enter into questions which have not beendealt with and decided in the judgment or order,violation of which is alleged by the applicant. Thecourt has to consider the direction issued in thejudgment or order and not to consider the questionas to what the judgment or order should havecontained."12. The contempt petition is filed on the premisethat the petitioner was not given proper promotion. Thepetitioner also filed a writ petition for the same relief. https://hcservices.ecourts.gov.in/hcservices/ 11The petitioner, under the threat of proceeding with thecontempt petition, wants to get all substantive relief fromthe respondents, which are having different considerations.Promotion to the higher post is based on different factorslike eligibility, efficiency, Annual Confidential Report,etc., 13. The weapon of contempt is not to be used inabundance or misused. Power to punish for contempt ofCourt is to be exercised for maintenance of the court’sdignity and majesty of law. Further, an aggrieved party hasno right to insist that the court should exercisesuch jurisdiction as contempt is between a contemner andthe court. (vide R.N. Dey v. Bhagyabati Pramanik , (2000) 4SCC 400). 14. The petitioner, under the threat of this contemptproceedings, seeks for a direction for promoting him andplacing his seniority as sought for by him, which cannot begranted or form a ground for punishing the respondents forcontempt. 15. Having regard to the law laid down by the apex Court,cited supra and having regard to the averments contained inthe counter affidavit filed in this case, we are of theview that the action of the respondents is not willful ordeliberate disobedience of the order of the Court, so as to https://hcservices.ecourts.gov.in/hcservices/ 12haul them up under the Contempt of Courts Act. Thecontempt notice issued is discharged. The contempt petitionis closed. Witness the Hon'ble Thiru HEMANT LAXMAN GOKHALE, theChief Justice of High Court at Madras, as aforesaid, thisthe 19th day of October, 2009. Sd/-DEPUTY REGISTRAR (OS)(i/c.)//Certified to be true copy//Dated at Madras this the day of 2009.COURT OFFICER(O.S.)From 25th Day of September 2008 the Registry is issuingcertified copies of the Orders/Judgments/Decrees in thisformat. https://hcservices.ecourts.gov.in/hcservices/ 13 SMV.CONTEMPT PETITION No.390 of 2009THE HON'BLE MR.JUSTICE K.RAVIRAJA PANDIANANDTHE HON'BLE MR.JUSTICE M.M.SUNDRESHORDERDATED : 19/10/2009FOR APPROVAL :18/11/2009APPROVED ON :18/11/2009