Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK AFR CONTAC NO. 6 OF 2021 In the matter of an appeal under Section 19(1)(a) of the Contempt of Court’s Act, 1971 from the order dated 27.09.2021 passed by the learned Single Judge of this Court in Suo Motu CONTC No. 1863 of 2021. --------------- Nagendra Kumar Sethy ..… Appellant -Versus- Registrar (Judicial), Orissa High Court and Ors. ….. Respondents For appellant : M/s Asok Mohanty, Sr. Advocate along with Mr. D.P.Das, Advocate For respondents : Mr. L. Samantray, Addl. Govt. Advocate [Respondent No.1] Mr. B.K. Behera, Advocate [Respondent No.2] Mr. A.K. Mishra, Advocate [Respondent No.3] P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND HONOURABLE MR. JUSTICE M.S. RAMAN Date of hearing and judgment :: 11.05.2023 // 2 // DR. B.R. SARANGI, J. The appellant-contemnor has filed this appeal challenging the order dated 27.09.2021 passed in Suo Motu CONTC No. 1863 of 2021, by which the learned Single Judge has sentenced the appellant to undergo simple imprisonment for seven days for non-compliance of the order dated 04.03.2020 passed in W.P.(C) No. 25638 of 2014. 2. The factual matrix which led to filing of this appeal, in a nutshell, is that respondent no.2, who was the petitioner in W.P.(C) No. 25638 of 2014 was initially appointed as Watchman-cum-Peon in Jajpur Cooperative Land Development Bank with effect from 16.09.1977 on temporary basis. Subsequently, in pursuance of the resolution passed by the Administrator Cadre Committee, the respondent no.2 was promoted to the post of peon and rendered service in the bank and, thereafter, he was retired from service under the V.R. Scheme on 31.03.2007. The Secretary, CARD Bank, on 04.06.2010, submitted a detailed claim statement of the staff and ex- staff, including respondent no.2, in which the name of // 3 // respondent no.2 appeared at sl.no.13. Though the Registrar, Co-operative Society, Odisha, vide letter dated 24.07.2010 wrote to the Managing Director, OSCARD Bank for release of funds to different CARD Banks out of the debt waiver claim towards the interest margin, but the grievance of the respondent no.2 was not mitigated. The Govt. of Odisha in the Department of Public Enterprises, by letter dated 24.01.2011, wrote to the Managing Director, OSCARD Bank, Bhubaneswar regarding introduction of VRS in OSCARD Bank and its primary units with the financial assistances of the Department of Public Enterprises through Odisha State Renewal Fund Society (OSRFS) and directed to pay the arrear dues of the respondent no.2 and other employees of the CARD Bank, as clarified in the resolution dated 23.12.2005 of the Govt. of Odisha, Department of Public Enterprises that the arrear dues if any shall be the liability of the OSCARD
Legal Reasoning
Bank. Aggrieved by the inaction of the opposite parties in the matter of payment of retirement benefits, like arrear salary, etc. total amounting to Rs.2,39,809/-, along with // 4 // accrued interest, the respondent no.2 approached this Court by filing the W.P.(C) No. 25638 of 2014. 2.1 After due adjudication, this Court taking into consideration the rival contention of the parties, disposed of the said writ petition, vide judgment dated 04.03.2020, with the following direction:-
Legal Reasoning
“In the backdrop of the aforesaid factual position and decision rendered in W.A. No.363 of 2011 dated 12.08.2014 (OSCARD Bank v. Sri Keshab Chandra Tripathy and others) and in W.A. Nos.364 of 2011 and 365 of 2011, the writ petition is disposed of with direction to opposite party nos.1 and 3 to act in tandem to see that arrear dues of the petitioner are paid with accrued interest @9% per annum from the date of entitlement till its payment within a period of eight weeks from the date of communication of the order and failure to comply the direction within the aforesaid period shall entail interest @9 % from the date of entitlement till its actual payment.” Due to non-compliance of the direction of learned Single Judge of this Court contained in the judgment referred to above, the respondent no.2 filed CONTC No. 3773 of
Decision
2020, which was disposed of by the learned Single Judge on 16.10.2020 with the following order:- “This matter is taken up through Video Conferencing // 5 // Heard learned counsel for the petitioner. This Contempt Petition is filed alleging order dated this Court’s violation 04.03.2020 passed in W.P.(C) No.25638 of 2014. of Considering the submissions made and as this Court finds, no purpose will be served in issuing notice in such matter, the Contempt Petition stands disposed of with a direction to the O.P.(s) to work out the direction of this Court issued in W.P.(C) No.25638 of 2014 on 04.03.2020, the meantime, within a period of fifteen days from the date of service of a copy of this order by the petitioner. Failure of compliance of this Court’s direction, a suo motu contempt proceeding will be initiated against the O.P.(s). if not worked out in Learned counsel for the petitioners may utilize the soft copy of this order available in the High Court’s website or print out thereof at par with certified copies the manner prescribed, vide Court’s Notice No.4587, dated 25.03.2020.” in 2.2 Since the above order of the learned Single Judge was not complied with, Suo Motu CONTC No. 1863 of 2021 was initiated and after due adjudication, the learned Single Judge disposed of the said suo motu contempt petition, vide order dated 27.09.2021, the effective part of which runs as follows:- “7. Since Contemnor No.2 is in no mood in discharging his duty in the matter of payment in terms of the direction of this Court, at the same time keeping in view that there is no challenge to the order of // 6 // Division Bench and Contemnor No.2 is still busy in challenging the direction of Single Bench in disposal of Writ Petition and Division Bench in the disposal of Writ Appeal, for this Court having got no scope to go to this extent in a contempt petition, while sentencing the Contemnor No.2 to undergo simple imprisonment for seven days finding there is no impediment in fully involved, complying with permits the petitioner involving the writ petition to initiate execution proceeding for realization of interest under appropriate provision of law. the direction 8. Keeping in view the request of Contemnor No.2 to provide him opportunity of Appeal, this Court grants ten days time to Contemnor No.2 for approaching the Higher Forum and obtaining interim protection, If any. Till then, he may not be arrested in the matter. Failure of obtaining interim order from the Higher Forum after the expiry of Contemnor No.2 shall surrender before the local police for serving the sentence passed in this proceeding.” ten days today, from Aggrieved by the aforesaid order passed by the learned Single Judge, the present appeal has been filed. 3. Mr. Asok Mohanty, learned Senior Counsel appearing along with Mr. D.P. Das, learned counsel for the appellant contended that whatever dues admissible to respondent no.2 have been paid to him and, as such, he is not entitled to get any other benefit at this moment. It // 7 // is further contended that respondent no.2 has already been paid the interest, which is evident from the compliance affidavit filed before this Court, wherein it was specifically stated that in compliance of the order passed by this Court in W.P.(C) No. 25638 of 2014 an account payee cheque bearing no.153391 dated 09.09.2021 amounting to Rs.3,22,810/- of Cuttack Central Cooperative Bank Ltd. Jajpur Town Branch, Jajpur was handed over to respondent no.2. The total amount received by respondent no.2 includes Rs.172/- towards security, Rs.1,42,183/- towards arrear salary and Rs.1,80,455/- towards interest. It is further contended that respondent no.2 has already been paid 9% interest on the arrear salary, which he is entitled to get in pursuance of the direction given by this Court. As such, no further amount can be paid to respondent no.2 with regard to compounding interest. Thus it is contended that the punishment so imposed by the learned Single Judge cannot be sustained in the eye of law. // 8 // 4. Mr. B.K. Behera, learned counsel appearing for respondent no.2-employee, brought to the notice of the Court Annexure-A, which is appended to the additional affidavit dated 24.04.2023. The said Annexure-A contains the liability position, as on 31.10.2012, of Jajpur CARD Bank, wherein the name of respondent no.2 is found place at sl.no.6. It is contended that respondent no.2 is entitled to get Rs.97,454/- towards CPF, Rs.1,42,183/- towards outstanding charges and Rs.172/- towards other charges, total of which comes to Rs.2,39,809/-. The respondent no.2 is entitled to get Rs. 3,02,148/- as interest @ 9% per annum upon the principal amount for the period from 31.03.2007 to 09.09.2021. Thus, respondent no.2 is entitled to get Rs.5,41,957/- (Rs.2,39,809/- + Rs.3,02,148/-). But, he having been paid Rs.3,22,810/-, now he is entitled to get Rs.2,19,147/- (Rs.5,41,957/- - Rs.3,22,810/-). 5. Mr. A.K. Mishra, learned counsel appearing for respondent no.3-OSCARD Bank contended that so far as CPF amount is concerned, the same should not be taken // 9 // into consideration in view of the fact that the same has to be paid by the CPF Commissioner and not the employer. But, so far as outstanding charges, along with nine percent interest, are concerned, the same have already been paid to respondent no.2, as has been duly acknowledged by him. Therefore, the calculation which has been rendered by respondent no.2 including the CPF amount cannot be sustained in the eye of law. 6. This Court heard Mr. Asok Mohanty, learned Senior Counsel along with Mr. D.P. Das, learned counsel for the appellant; Mr. B.K. Behera, learned counsel for appearing for respondent no.2; and Mr. A.K. Mishra, learned counsel appearing for respondent no.3- OSCARD Bank in hybrid mode and perused the record. Pleadings having been exchanged between the parties, with the consent of learned counsel for the parties this appeal is being disposed of finally at the stage of admission. 7. Before delving into the legality and propriety of the order dated 27.09.2021 passed by the learned Single Judge in Suo Motu CONTC No. 1863 of 2021 sentencing // 10 // the appellant to undergo simple imprisonment for seven days, which is the subject-matter of challenge in the instant appeal, it is pertinent to note that outstanding dues are to be paid to respondent no.2 by the appellant along with interest at the rate of 9% per annum, as was directed by the learned Single Judge in the order dated 04.03.2020 passed in W.P.(C) No. 25638 of 2014. As is evident from the affidavit dated 14.09.2021 filed on behalf of the appellant before the learned Single Judge in the suo motu contempt proceeding, a detailed calculation was made by the employer with regard to entitlement of respondent no.2, in compliance of the order dated 04.03.2020 passed in the above noted writ petition, and the entire dues of respondent no.2 were paid to him, but the same has not been taken into consideration in proper perspective by the learned Single Judge while passing the order impugned. In the said affidavit, it was clearly indicated that CPF amount of Rs.97,454/- cannot be included in the total amount for calculation of interest at the rate of 9% per annum. Rather, 9% interest is to be calculated on the arrear salary of Rs.1,42,183/- and // 11 // security amount of Rs.172/-. Accordingly, it was calculated that respondent no.2 is entitled to get Rs.1,80,455/- towards interest. Hence, a total amount of Rs.3,22,810/-, including arrear salary of Rs.1,42,183/- and security amount of Rs.172/- was paid to respondent no.2 by the employer by way of demand draft, which was duly acknowledged by him. Once the above amount has been received by the respondent-employee, he cannot turn around and ask for compounding interest @ 9%. Under these circumstances, the impugned order of punishment imposed by the learned Single Judge cannot be held good. 8. It may not be out of place to mention here that interest on the CPF amount has to be paid by the CPF Commissioner. Since respondent no.2 has already received his outstanding dues along with interest, the observation to the contrary made by the learned Single Judge cannot be sustained in the eye of law. 9. In the above view of the matter, this Court is of the considered opinion that the order dated 27.09.2021 // 12 // passed by the learned Single Judge in Suo Motu CONTC No. 1863 of 2021 cannot be sustained in the eye of law and the same is liable to be quashed and is hereby quashed. Since the order of the learned Single Judge passed in the writ petition, as referred to above, has already been complied with, the appellant is discharged from the contempt proceeding. 10. In the result, the appeal is allowed, but, under the circumstances of the case, there shall be no order as to costs. JUDGE …………….………….. DR. B.R. SARANGI, M.S. RAMAN, J. I agree. JUDGE …………….………….. M.S. RAMAN, Signature Not Verified Orissa High Court, Cuttack The 11th May, 2023, Ashok Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA Date: 16-May-2023 18:31:14