ORDER
SHEET APOT 30 OF 201.GA 149.OF 201.CC 8.OF 201.IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE Sr.SUMITAVA MITRA & ORS.Versus MRS.RITA MENo.& ORS.For the approval of: The Hon’ble Justice Arun Mishra, Chief Justice ………………………………………………………………………………………………………… ……………………………………………………………………………………………………….The Hon’ble Justice Joymalya Bagchi ………………………………………………………………………………………………………… ……………………………………………………………………………………………………….Whether the Judgment should be sent to the reporters for reporting?.(Yes/not Whether the reporters be allowed to see the Judgment?.
(Yes/No.ORDER
SHEET APOT 30 OF 201.GA 149.OF 201.CC 8.OF 201.IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE Sr.SUMITAVA MITRA & ORS.Versus MRS.RITA MENo.& ORS.BEFORE: The Hon'ble CHIEF JUSTICE Mr.ARUN MISHRA The Hon'ble JUSTICE JOYMALYA BAGCHI Date :
12. h August, 2013.
Mr.J.K.Mitra, Sr.Adv., with Mr.A.K.Pan, Adv., …for appellants.
Mr.F.M.Razak, Adv., Ld.
Addl.
Solicitor General, with Mr.A.K.Banerjee, Adv., ..for respondents.
The Court (Per Arun Mishra, CJ.) The intra-court appeal has been preferred against the dismissal of the contempt application being C.C.No.81 of 2010 by the Single Bench vide the judgment and order dated July 5, 2010.
Two writ petitions being W.P.No.1505 of 1999 and W.P.No.2394 of 1999 which were decided by a Single Bench on August 27, 2009.
In the said writ petitions, prayer was made to revise the salaries of the 615 officers working in the NJMC LTD.The pay revision of the NJMC employees is dealt with and determined by the Ministry of Industry, Government of India.
Though the pay scales of the other employees were revised but not that of the officers of NJMC.
As such, the aforesaid writ petitions were filed before a Single Bench for revision of their pay scale.
The stand of the respondents in the writ petitions was that the Union of India was not in a position to implement the pay scale of 1992 and 1997 in the case of the executives as the company was sick and reference was pending referred to in the year 1993.
before the BIFR which had been The Government of India had all along been willing to grant the VRS to the officers and in accordance with the guidelines of the Director of Public Enterprises, the requisite funds for the same are available with the company and earmarked for the VRS of the said officeRs.Industrial Companies (Special In view of section 22(1) of the Sick Provisions) Act, 1985, the writ petitions were not maintainable as even otherwise the salaries of the said officers had been fixed as per the bipartite/tripartite industrial settlement, and interim reliefs were also granted from time to time thereafter.
Single Bench of this court issued following directions: (i) That an expert committee be constituted with sufficient experience in dealing with such matters relating to guidelines of pay structures with representatives of the petitioners within three months.
(ii) The expert committee shall consider the grievances of the petitioners as ventilated in the two writ petitions and take appropriate action and submit its report within four months.
(iii) The respondents authorities thereafter shall immediately take “appropriate steps”.
towards the decision on the pay scales and payment of arrear amount to the petitioneRs.The directions were issued for constitution of an expert committee to consider the rationalisation of the pay structure after duly considering the grievances of the petitioners in time bound manner and thereafter the Union of India and the others considered were directed to take appropriate steps towards the fixation of the pay scale and payment of the arrears to the petitioneRs.Thereafter, the matter had travelled to the Union Cabinet and a decision had been taken on December 6, 2010 to grant a composite package of revision of pay for 1992 and 1997, VRS on the 1997 pay scales and arrears @40% may be offered for full and final settlement of the dues in the light of the judgment of this Court.
An additional cost of Rs.145.41 crores as the revised cost of the pay scale was required.
Following is the order issued by the Government of India pursuant to the decision of the Union Cabinet: “1.
Grant of composite package of revision of pay scales (92&97).VRS (on 97 pay scales; and arrears @40% may be offered for full and final settlement of dues of officers and executives in light of the judgment of Hon’ble High Court of Kolkata; 2.
Revised cost of scheme of Rs.1562.98 crores for revival of NJMC which includes an additional budgetary support of Rs.145.41 crores (interest free loan) for meeting the additional cost of the Revised Cost of Scheme.”
3. Revised repayment period of the loans granted to NJMC as 2013-14 to 2024-25.”
It appears from the note dated October 20, 2010, submitted for consideration by the Union Cabinet by the Joint Secretary, Government of India, Ministry of Textiles, for consideration of the Union Cabinet, that the recommendations had been made by the expert committee in the following terMs.“5.4 The recommendations of the expert committee are as follows: (i) that the pay of the eligible executives/officers of the NJMC LTD.may be revised in terms of the revision of scales of pay promulgated No.2(50)/86-DPE(WC).dated by 19.7.95 the DPE (i.e.vide 1992 OM pay- scales) and OM No.2(49)/98-DPE(WC) dated 25.6.1999 (i.e.1997 pay-scales) respectively.
(ii) That the eligible executives/officers of the NJMC LTD.may be disbursed arrears of pay and allowances flowing from the revision of scales of pay in a manner and mode not inferior to the package adopted the compensation of the clerical staff of NJMC arising from the Memorandum of Settlement of 24.9.1997.”
In paragraph 5.6 of the said note, the proposal was made to implement the said recommendation following the same yardstick/package adopted in case of the clerical staff.
In paragraph 5.7 of the said note provided the financial implication in recommendation.
respect of the implementation of the aforesaid Paragraphs 5.6 and 5.7 are set out hereinbelow: “5.6 The recommendation of the expert committee can be implemented following the same yardstick/package adopted in the case of clerical staff.
(i) This will require- new salaries w.e.f.1.4.2010 be paid on the basis of 1997 pay-scales; and (ii) a settlement with officers to accept 40% of the arrear on pay and allowances (for the duration 1.1.92 (or 1.1.97 as the case may be) to 31.3.2010 i.e.upto date of implementation).for expeditious settlement of their dues.
5.7 The financial implication of the aforesaid proposal is worked out as follows- VRS-existing employees (as per 1997 pay-scales) Arrears – existing employees (40% of arrear for existing 206 employees for period 1.1.92 to 1.4.2010 upon implementing 92 & 97 pay-scales above) Arrears-retired employees (40% of arrear for retired 563 employees including arrears of retirement benefits) Total financial liability Liability in respect of officers’ VRS(87 pay scale) & relief package that was approved by Cabinet in March 2010 (for comparison) Retirement benefits) Total financial liability Liability in respect of officers’ VRS (87 payscale) & relief package that was approved by Cabinet in March 2010 (for comparison) Rs.Crores 36.11 21.32 27.25 84.68 37.77 84.68 37.77 The Union Cabinet duly approved such proposal and recommended grant of composite package on revision of pay scale 92&97; VRS (97 pay scale basis) and arrears @40% may be offered for full and final settlement of dues of officers and executives in the light of the judgment and order of this court.
It is therefore clear that the Union Cabinet did not make any discrimination in the matter of grant of arrears of salary between the officers/executives on one hand and the clerical staff on the other.
The pro rata rate of arrears was uniformly made and the package offered was not inferior to that of the clerical staff of NJMC LTD.The contempt petition has been filed by the appellants before the Single Bench as the arrears were not paid with effect from the date of revision of pay and decision was taken to make the payment of 40% arreaRs.The Single Bench has held that the respondents were required to take appropriate steps and a committee was to consider the grievances and thereafter the committee was required to submit a report and appropriate respondents.
action was required to be taken by the The respondents have considered each and every aspect and ultimately passed order in the shape of complete package as has been referred to in the affidavit dated June 7, 2011.
The Single Bench has also taken note of the facts mentioned in the reply filed by the contemner no.1 in the affidavit in opposition dated November 18, 2010 in paragraph 23 thus: “(e) National Jute Manufacturers Corporation Limited is a sick company and presently there is no production and consequently there is no revenue generation.
Jute Manufacturers Corporation Limited is National totally dependent on the financial support from the Government of India.
before The draft revival plan has been submitted the Board for Industrial & Financial Reconstruction which was discussed in the last hearing of BIFR held on 13th September, 2010.
BIFR has fixed next date of hearing tentatively on 6th January, 2011.
(f) National Jute Manufacturers Corporation Limited has settled the claims of all the secured creditors and all its employees who have opted for the Voluntary Retirement Scheme as per the approval of Union Cabinet, 2005.
The officers have not opted for VRs.therefore, their case is pending.
(g) Making a grant to National Jute Manufacturers Corporation Limited or permitting it to use the funds allotted to it for other purposes to implement the recommendations of the Expert Committee will require the approval of the Union Cabinet.
(h) Sr.Bhupendra Singh, the then Joint Secretary, was the Chairman of the Expert Committee.
tenure, he was relieved from On completion of his the Ministry and then joined back in the Government of Uttar Pradesh on April 1, 2010.
(i) The final minutes of the recommendations of the Expert Committee were signed by all the members and issued on May 19, 2010.
(j) The recommendations so made by the Expert Committee were studied by the officers of the Ministry and, thereafter, processed in file vide note dated June 4, 2010 and were further processed through proper channel and submitted to the Minister.
(k) The Minister, in its note dated July 8, 2010, observed that since the instant proposition was being made in variation to the earlier approval of the Cabinet in the subject matter.
Thereafter it requires prior approval of for the Cabinet recommendation.
compliance of Expert Committee (l) The funds required for compliance of the Report of the Expert Committee have included in the Draft Cabinet Note for which Cabinet approval is necessary.
The proposal for settlement of officers’ issues has been incorporated in the Draft Cabinet Note submitted for approval of the Union Cabinet.
(m) The Draft Cabinet Note was approved by the Minister on August 11, 2010.
(n) Be it mentioned here that as per the extant procedure, the Draft Cabinet Note was circulated on August 13, 2010 to the Prime Minister’s Officer; Corporate AffaiRs.Labour & Employment Department, Department of Public Enterprises, Department of Expenditure, Department of Revenue and Ministry of Law.
(o) The comments of Department of Expenditure received on 20th September, 2010, September, 2010, Corporate Affairs Department Ministry received of on of Labour 30th Revenue and 28th on Employment, September, 2010, Ministry of Law on 1st October, 2010 and subsequent to above from Ministry of Finance on 28th October, 2010.
(p) The finalised cabinet proposal, incorporating all the comments have been forwarded to cabinet secretariat on 3rd November, 2010.
(q) The comments of DPE have also been received (subsequent to forwarding proposal to Cabinet Secretariat).(r) The matter will be considered before the Cabinet during the next meeting.
The placement of proposal in the Cabinet meeting are regulated by Cabinet Secretariat.
(s) The comments from all the Ministries were received and the Draft Cabinet Note has been finally submitted for approval of the Union Cabinet.
(t) For the reasons as stated hereinbefore, the recommendations of the Expert Committee have not yet been implemented.
(u) It will be evident from the facts as stated hereinbefore that there is no intention on my part or on the part of the Ministry of textiles to deliberately defy this order of the Hon’ble Court.
On the other hand, the Ministry is actively pursuing all the concerned authorities for implementation of the order passed by this Hon’ble Court.
(v) The Ministry of Textiles is making all out efforts for compliance of the order of the Hon’ble High Court in time, but there are procedural formalities required to be complied with for obtaining approval of the Union Cabinet because of policy matter and budget provision required in the matter.
caused in complying In the process delay has been with the order of this Hon’ble Court.”
The Single Bench has held that the contempt proceedings cannot be initiated for the purpose of ventilating such a grievance.
The Single Bench has also taken into consideration the sickness of the company.
It is also stated that substantial obtained by the officers as mentioned in the order.
financial crunch, scheme has been adopted; violation of the court’s direction is made out.
amount has been Considering the thus no case for Aggrieved thereby, the appeal had been preferred before us.
Sr.Mitra, learned senior counsel appearing on behalf of the appellants, submitted that the impugned judgment and order has the effect of modifying the decision rendered by the Single Bench dated August 27, 2009.
The appeal is maintainable.
It was submitted by the learned senior counsel that a recommendation was made to make the payment of arrears also.
The learned senior counsel has also pointed out that the recommendation of the Ministry of Textiles has not been followed by the Cabinet.
The learned senior counsel also submitted that there was no discretion left with the Union of India not to implement the report of the expert committee.
It was bound to implement the same with respect payment of arrear amount to the petitioneRs.The judgment and order passed by the Single Bench amounts to modifying the order itself.
It was a clear case of violation of the order passed by this court on August 27, 2009 and the Single Bench ought to have directed the respondents to give the 100% arrears No.40%.
The learned senior counsel has further submitted that the petitioners were not members of the association which had entered into the settlement with the respondents.
Thus the said settlement agreement could not be said to be binding on the petitioneRs.Learned counsel appearing for the respondents submitted that the decision has been rightly taken by the Cabinet and the Union of India.
The recommendation made by the expert committee was not binding and the Government was required to take appropriate decision, meaning thereby suitable decision considering the various aspects.
The Cabinet has taken the implemented by the Government of India.
decision which has been Thus there was no violation of the judgment and order passed by the Single Bench on August 27, 2009.
Apart from that there was an agreement entered into by the representative union on the basis of which the decision had been taken and the scheme has been implemented duly considering the report submitted by the expert committee.
After hearing the learned counsel for the parties, we are of the considered opinion that the direction issued by this court was to form an expert committee and thereafter expert committee was required to consider the grievances and to submit a report.
The report had been submitted and thereafter the Government was required to take appropriate steps towards the fixation of the pay scale and payment of arrears amount to the petitioneRs.We find that in the judgment there was no peremptory direction to revise the pay scales and to make the arrears or revision of pay at 100%.
However, the respondents authorities were given power to take appropriate steps, obviously, in accordance with law.
The report of the expert committee cannot be said to be final and conclusive and binding.
The order passed by this court cannot be interpreted in a manner suggested by the appellants.
The interpretation suggested by the respondents is plausible one and obviously the direction is not peremptory as nowhere in the decision this aspects have been adjudicated that arrears or revision of pay have to be at what percentage.
The revision of pay has already been made.
find that there is substantial compliance of the order.
of the case have been taken into consideration.
declared to be sick.
Thus we The facts The industry was Thus it could not be said to be violation of the judgment and order passed by this court on August 27, 2009.
We cannot accept submission that it is a case of modification of the directions in the contempt jurisdiction issued by the Single Bench of this court in the impugned judgment and order dated August 24, 2009.
The reasonings have been given by the Single Bench in the impugned order.
We find that there is no attempt to modify or violate the judgment and order rendered by the Single Bench on August 24, 2009.
There was no peremptory direction issued and “appropriate steps”.
would mean that the Union of India is required to take decision considering the various aspects of the case and duly considering the report.
Thus it cannot be said to be violation or contempt of the directive issued by this court.
The mill was sick and it was not operating and the conditions of the building, factory, godown, high tension electric cable etc.had been taken into consideration.
It has been rightly held by Single Bench that appropriate steps have been taken in terms of the compliance of the directions issued by this court.
In view of the aforesaid facts, no case under Contempt of Courts Act, respondents.
1971 is made out to take any action against the They have revised the salary and 40% arrears have been paid as done in the case of the other employees also in the true spirit of compliance of the judgment and order passed by this court on August 24, 2009.
We find that no case is made out so as to interfere with the impugned judgment and order under appeal.
The learned senior counsel for the appellants has relied upon the decision of the Supreme Court in Union of India and others –vsSubedar Devassy PV, (2006) 1 SCC 613.wherein it has been laid down that in contempt proceedings, the court is concerned only with the question whether the earlier decision has been complied with or not.
It cannot examine correctness of the earlier decision, or traveRs.beyond it and take a different view from what was taken therein, or give additional directions or delete any direction.
That would be exercising review jurisdiction while dealing with a contempt There is no dispute with the aforesaid proposition.
However, application which is impermissible.
on a plain and simple reading of the judgment and order of this court, dated August 24, 2009, we find that no case of its violation has been made out in view of the decision taken by the Union of India.
Yet another appellants decision Tamilnad has Mercantile been cited Bank on behalf Shareholders’ of the Welfare Association (2) –versus S.C.Sekar and otheRs.(2009) 2 SCC 784.in which the doctrine of amity or comity was emphasised and when there can be refusal to exercise the power if an order is illegal, giving rise to another illegality and it should not be interfered with.
We find that decision is inapplicable.
Considering the factual matrix of the instant case and at the same time in the aforesaid decision, the Supreme Court laid down that when two views are possible with respect to the order, a contempt petition would not lie under the Contempt of Courts Act, 1971.
In view of the judgment and order passed by this court of which violation was alleged, we find the interpretation made by the respondents to be plausible one and there was not mandatory direction to the effect that whatever to be decided by the expert committee has to be followed in the mechanical manner by the Union of India.
There was no such direction as suggested here, there was no necessity of filing an appeal against the decision of the Single Bench dated August 24, 2009.
The view taken by the respondents is plausible one and they have taken the steps for compliance of the order passed by this court and they have complied with it.
No case is made out so as to interfere in the appeal under the Contempt of Courts Act, 1971.
with law.
The We also find the impugned order is in accordance No case for interference with the appeal is made out.
appeal is devoid of merit and the same is hereby dismissed.
There will be no order as to costs.
(JOYMALYA BAGCHI, J.) tk (ARUN MISHRA, CJ.)