Heard Sri R.N.Tripathi, learned counsel for the applicant and learned Standing Counsel for the opposite parties.
Contempt is alleged of the order dated 19.9.2008 passed in Writ Petition No. 59876 of 2007 (Ayodhya Rai Vs. State of U.P. through Home Secretary U.P. Govt. Lucknow and others).
The facts of the case are that the applicant was a constable in the U.P. Civil Police. His services were terminated by an order dated 31.5.1973. He had filed Writ Petition No. 43530 of 1998, which was allowed by the order dated 8.9.1999 and as a consequence thereof the applicant was reinstated in service by the order dated 26.10.1999. It is alleged that the petitioner retired on 30.6.2007.
It appears that against the order dated 8.9.1999 of the Writ Court, the opposite parties filed a Special Appeal which was dismissed on 23.11.2002 in terms of the judgement dated 15.11.2002 passed in the case of Gazadhar Pandey and others.
The petitioner alleges that in the year 2007, the opposite parties on the basis of an objection by the audit, deducted certain excess payment made to the petitioner during his service period and further amount found due from the petitioner was required to be deposited by him.
Against such orders dated 12.9.2007 and 8.11.2007, the petitioner alleges to have filed Writ Petition No. 59876 of 2008 which was decided by the order contempt whereof is alleged. He was made entitled to post retiral benefits including arrears with interest. The petitioner states that he moved a representation dated 28.1.2008 before the Commandant 15th Bn. P.A.C. Agra, however, it has gone unanswered and hence this contempt petition.
Learned counsel states that the petitioner filed a Writ Petition No. 60949 of 2005 assailing the Governments policy decision dated 15.4.2004 depriving him of salary on the principle of 'no work no pay' which writ petition was allowed on 29.7.2009 and it was directed that the petitioner shall be paid the arrears for the period of termination. He alleges contempt when he has been denied arrears of salary w.e.f. 31.05.1973 to 26.10.1999 and disputes the post retiral benefits as paid to him on the ground that it is insufficient and wrongly calculated.
In these proceedings the opposite party no.2, Commandant 15th Bn. P.A.C. has filed an affidavit of compliance dated 25.5.2010. He has narrated the payments made to the applicant in compliance of the order dated 19.9.2008 passed by the Writ Court. In paragraph 8, it has been detailed as quoted hereunder:-
"8. That in compliance of the order of this Hon'ble Court dated 19th September, 2008, the following payments have been made to the petitioner:-
(i) 90% gratuity has been calculated to the tune of Rs. 1,90,778/- and from that Rs. 1,57,331/- has been deducted on account of wrong fixation of pay, as such, remaining amount of gratuity calculated to the tune of Rs. 33,447/- has been paid to the petitioner on 19.05.2010. A copy of the receiving of the petitioner dated 19.05.2010 is being filed herewith and marked as Annexure No.1 to this affidavit of compliance.
(ii) 10% gratuity calculated to the tune of Rs. 21,000/- has been paid to the petitioner on 19.05.2010. A copy of the receiving of petitioner dated 19.05.2010 is being filed herewith and marked as Annexure No. 2 to this affidavit of compliance.
(iii) Leave encashment of petitioner calculated to the tune of Rs. 31,261/- has been paid to the petitioner on 19.05.2010. A copy of the receiving of petitioner dated 19.05.2010 is being filed herewith and marked as Annexure No.3 to this affidavit of compliance.
(iv) Commutation calculated to the tune of Rs. 2,38,347/- has been paid to the petitioner on 19.05.2010. A copy of the receiving of petitioner dated 19.05.2010 is being filed herewith and marked as Annexure No. 4 to this affidavit of compliance.
(v) Provisional pension calculated to the tune of Rs. 2,43,850/- (for the period July, 2007 to April, 2010) has been paid to the petitioner on 19.05.2010. A copy of the receiving of petitioner dated 19.05.2010 is being filed herewith and marked as Annexure No. 5 to this affidavit of compliance.
(vi) The interest calculated @ 12% on the aforesaid payments made to the petitioner vide Item Nos. 1 to 5 mentioned in the preceding paragraphs w.e.f. July, 2007 to April, 2010 has been calculated to the tune of Rs. 1,21,719/-, which has been paid to the petitioner on 24.05.2010. A copy of the receiving of petitioner receiving 12% interest dated 24.05.2010 is being filed herewith and marked as Annexure No. 6 to this affidavit of compliance.
(vii) Group Insurance of petitioner has been calculated to the tune of Rs. 5580/-, which has been paid to the petitioner on 19.05.2010. A copy of the receiving of petitioner dated 19.05.2010 is being filed herewith and marked as Annexure No. 7 to this affidavit of compliance."
The opposite party no. 3 namely Principal Secretary (Home), Government of U.P. has also filed an affidavit of compliance dated 25.5.2010 and has reiterated that in pursuance of the directions issued by the Writ Court, the payments have been made to the applicant and has filed the details given by the Commandant 15th Bn. P.A.C., Agra as Annexure-2 to the affidavit.
An affidavit dated 29.10.2010 filed by the Commandant 15th Bn. P.A.C. Agra is also available on record. An order dated 15.02.2010 passed by the Apex Court in Special Leave to Appeal (Civil) No. 244 of 2010 has been filed as Annexure -1. A perusal whereof indicates that the State of U.P. assailed the order dated 29.7.2009 (wherein the petitioner was made entitled to arrears for the period of termination) passed in Writ Petition No. 60949 of 2005 (Ayodhya Rai Vs. State of U.P. and others) before the Apex Court and the following order was passed on 15.2.2010.
"Delay condoned.
The respondent is represented on caveat by learned counsel.
Having heard Mr. Pramod Swarup, in support of the Special Leave Petition and learned counsel, who has appeared on caveat for the sole respondent, we are not inclined to interfere in the Special Leave Petition. The same is, accordingly, dismissed. However, we make it clear that while computing the arrears in terms of the orders passed by the High Court, the question of back-wages shall not be considered. "
From the afore quoted order, it was made clear that while computing the arrears in terms of the order passed by the High Court (order dated 29.7.2009) the question of back wages shall not be considered.
A conjoint reading of the order dated 29.7.2009 passed by the High Court and the order dated 15.2.2010 passed by the Apex Court, it appears that although the policy decision dated 15.4.2004 of the State Government relating to no work no pay was quashed by the High Court but the Supreme Court in appeal of the State of U.P. against such judgement directed that the question of back wages shall not be considered while computing the arrears in terms of the order dated 29.7.2009 passed by the High Court. It is therefore, clear that under the order dated 15.2.2010 the question of back wages to the applicant could not be considered for the purpose of computing the arrears.
It is in light of the aforesaid direction of the Supreme Court that the order contempt whereof is alleged has to be seen. The order dated 19.9.2008 (contempt whereof is alleged) passed by the High Court indicates that the opposite parties were directed to pay post retiral benefits including arrears alongwith simple interest. When the Apex Court on 15.02.2010 had clearly directed that while computing the arrears, the question of back wages shall not be considered, it is clear that the arrears cannot be computed in terms of the order dated 19.09.2008 or even order dated 29.7.2009 passed by the High Court by taking into account the question of back wages. Hence, where on the one hand, the High Court by the order dated 29.7.2009 required the opposite parties to pay the arrears for the period of termination to the petitioner, the Apex Court against such an order directed that the question of back wages shall not be considered while computing the arrears. Therefore, the order contempt whereof is alleged has to be read in view of the direction issued by the Supreme Court under the order dated 15.2.2010.
When it is so read the post retiral benefits are payable to the petitioner but insofar as computing the arrears is concerned, the back wages cannot be considered which back wages would not be payable.
It is in light of the aforesaid circumstances, that learned Standing Counsel has submitted that the order dated 19.9.2008 passed by the High Court has been totally complied with in view of the details of the payment of retiral benefits made to the petitioner as given in paragraph 8 of their compliance affidavit dated 25.5.2010.
It appears that the petitioner's second dispute is the calculation made by the opposite parties in fixing the post retiral benefits. In these contempt proceedings, the Contempt Court cannot adjudicate disputed questions of fact like incorrect or correct calculation of post retiral benefits but it has only to see whether the direction issued by the High Court to pay post retiral benefits including arrears alongwith simple interest has been complied with by the opposite parties. The order of the High Court was passed on 19.9.2008 whereas the order of the Apex Court was passed on 15.2.2010 and therefore, it cannot be held that the order dated 19.9.2008 passed by the High Court had attained finality. When such order of the High Court is to be governed by the order dated 15.2.2010 passed by the Supreme Court then the submission of learned counsel for the applicant alleging contempt of the order dated 19.9.2008 passed by the High Court cannot be simplicitor accepted since it is the order of the Apex Court that is to the benefit of the petitioner or to his disadvantage according to his claim made.
Under such circumstances, the petitioner is only entitled to those post retiral benefits, which have been made permissible under and in accordance with the direction issued by the Supreme Court on 15.2.2010 and nothing more.
Since there is a factual dispute of calculation and quantum of the amount of post retiral benefits the petitioner ought to have availed the remedy available to him in law, if he was aggrieved against the payment made to him as detailed in paragraph 8 of the compliance affidavit dated 25.5.2010. These contempt proceedings are not the appropriate forum for adjudication of highly disputed issues of fact relating to calculation and quantum of the amount paid or payable. This contempt petition is misconceived where a claim of arrears of back-wages is argued and is not maintainable on the dispute of amount paid or payable as retiral dues.
This contempt petition is totally misconceived and, therefore, cannot be kept pending any further. It is accordingly dismissed.
Notices issued are discharged.
No order is passed as to costs.
Dated: 7th September, 2011.
Lbm/-