SC on power to punish for contempt

Posted on 05 February 2014 by Guest

Court

Supreme Court of India

Brief

The bench comprising of Justice Chief Justice P. Sathasivam, Justice Ranjan Gogoi and Justice Shiva Kirti Singh set aside the contempt proceedings initiated by the the Madras High Court against Sudhir Vasudeva, Chairman and Managing Director of ONGC. Important highlights of the judgment: ''The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt. The very nature of the power casts a sacred duty in the Courts to exercise the same with the greatest of care and caution...'' ''Courts must not, therefore, travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are explicit in a judgment or order or are plainly self evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or willful violation of the same... '' ''Courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon...''

Citation

Air India Statutory Corporation and Others Vs. United Labour Union and Others Steel Authority of India Ltd. & Ors. Vs. National Union Waterfront Workers & Ors Jhareswar Prasad Paul and Another vs. Tarak Nath Ganguly and Others V.M.Manohar Prasad vs. N. Ratnam Raju and Another Bihar Finance Service House Construction Cooperative Society Ltd. vs.Gautam Goswami and Others Union of India and Others vs. Subedar Devassy PV

Judgement

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1816 OF 2014

REPORTABLE

Special Leave Petition (C) NO.23272 OF 2012

SUDHIR VASUDEVA, CHAIRMAN & MD. ... APPELLANT (S)

ONGC & ORS.

VERSUS

M. GEORGE RAVISHEKARAN & ORS. ... RESPONDENT (S)

RANJAN GOGOI, J.

1. Leave granted.

J U D G M E N T

2. Aggrieved by a direction of the Madras High Court in

exercise of its contempt jurisdiction to create supernumerary

posts, this appeal has been filed by the respondents in the

contempt proceeding.

Page 1

3. Shorn off unnecessary details the core facts that would

need a recital are enumerated hereinbelow.

The respondents in the present appeal were engaged as

Radio Operators on contract basis in the Oil and Natural Gas

Corporation Ltd. (hereinafter referred to as "the

Corporation"), a Public Sector Undertaking, inter alia,

engaged in on-shore and off-shore oil and natural gas

exploration. By a notification dated 08.09.1994 issued under

Section 10(1) of the Contract Labour (Regulation and

Abolition) Act, 1970 employment of contract labour in various

works in the Corporation, including the work of Radio

Operators, was prohibited. A Writ Petition bearing No. 15211

of 1991 seeking a direction to the Corporation to treat the

contract Radio Operators at par with the regular Marine

Assistant Radio Operators was pending before the High Court

at that point of time. Subsequently, the union representing

56 number of contract employees engaged as Radio

Operators instituted another Writ Petition i.e. W.P. No. 1178

of 1996 seeking the same relief.

Page 2

4. In Air India Statutory Corporation and Others Vs.

United Labour Union and Others

this Court took the view

that upon abolition of contract labour the persons engaged

on contract basis became the employees of the principal

employer and hence entitled to regularization under the

principal employer. The said view has been subsequently

dissented from, though prospectively, in Steel Authority of

India Ltd. & Ors. Vs. National Union Waterfront

Workers & Ors.

. Following the decision of this Court in Air

India Statutory Corporation and Others (supra) the writ

petitions were allowed by a learned Single Judge of the

Madras High Court by Order dated 29.01.1997. The Letters

Patent Appeal filed by the Corporation against the said order

was dismissed. The matter was carried to this Court in S.L.P.

(Civil) No.20951 of 1997 which was disposed on 12.1.1998

with the following operative direction.

"Mr. V.R. Reddy, learned Additional Solicitor

General appearing on behalf of the petitioner

states that those of the 56 workmen who are found

to be qualified in terms of the appropriate

regulations, as in force at the relevant time, shall

(1997) 9 SCC 377

(2001) 7 SCC 1

Page 3

be absorbed as contemplated by the judgment in

Air India Statutory Corporation & Ors. vs. United

Labour Union & Ors. 1997 (7) SCC 377. In view of

this statement the SLP does not survive and is

disposed of."

5. Following the aforesaid order of this Court in the special

leave petition the respondents herein were absorbed as

"Junior Helpers" with effect from 29.1.1997 by an order

dated 2.4.1998. Their pay was fixed at the bottom of the

basic pay of Class IV employees of the Corporation. It may

be noticed, at this stage, that the respondents being

employees of the Southern Region of the Corporation were

posted at Karaikal and Rajamundry stations.

6. It appears that thereafter a Committee was constituted

by the Ministry of Petroleum & Natural Gas which

recommended that the Corporation is bound to absorb all the

contract Radio Operators who had the requisite qualification

in the post of Marine Assistant Radio Operators with effect

from 8.9.1994 and in the pay scale applicable to the said

post as on 8.9.1994.

Page 4

7. As the aforesaid recommendation of the Committee was

not being given effect to, the present respondents instituted

another proceeding before the High Court i.e. Writ Petition

No. 21518 of 2000 seeking a direction for their absorption as

Marine Assistant Radio Operators with effect from 8.9.1994.

Specifically, it must be taken note of that in the

aforesaid writ proceeding the Corporation had, inter alia,

contended that there was no requirement of Marine Assistant

Radio Operators in the Southern Region Business Centre

(SRBC) or other regions of the Corporation as there were no

adequate off-shore operations. It was also contended that on

account of the upgraded technology available, there is also

no necessity for the service of a Radio Operator as with the

advancement of technology the users themselves were in a

position to operate the system without the assistance of an

operator.

8. By order dated 2.8.2006 the writ petition was disposed

of with the following findings and operative directions:

Page 5

"32. Therefore, considering the entire facts and

circumstances of the case in the light of the report

of the committee, recommendation made by the

Ministry of Petroleum and Natural Gas and the

judgment of the Supreme Court in Air India

Statutory Corporation case, cited supra, I am of the

considered view that the absorption of the

petitioners by the respondent corporation as Junior

Helpers with the pay of Rs.2,282/- old basic bottom

of Class IV cadre was not fair and proper and

certainly not in strict compliance of the

undertaking given by the respondent corporation

before the Supreme Court. On the other hand, I

am of the considered view that the petitioners are

entitled to be absorbed as Marine Assistant Radio

Operators.

33. In the result, the writ petition is allowed as

prayed for. The respondents are directed to

absorb the petitioners as Marine Assistant Radio

Operators with effect from 8.9.1994 on the basis of

the abolition of contract labour and as per the

recommendations dated 4-6-1999 of the Ministry

of Petroleum and Natural Gas, Government of

India, to the first respondent and the approval of

the competent authority as communicated in the

fax dated 23-9-1999 to the third and fourth

respondents with all monetary benefits and all

other attendant benefits. If for any reason, there is

no cadre of Marine Assistant Radio Operator or

there are no sufficient posts are available in the

cadre of Marine Assistant Radio Operators to

accommodate all the petitioners, the respondents

are directed to give "pay protection" to the

petitioners and sanction them the scale of pay as

applicable to the Marine Assistant Radio Operators

as recommended by the Ministry of Petroleum and

Natural Gas."

Page 6

9. The aforesaid order dated 2.8.2006 was challenged by

the Corporation in Writ Appeal No. 1290 of 2006 which was

dismissed on 19.12.2006 with a direction to the Corporation

to implement the order of the learned Single Judge dated

2.8.2006 within a period of four weeks from the date of

receipt of a copy of the order. Two other writ petitions i.e.

W.P. Nos. 27500 of 2006 and 27529 of 2006 seeking similar

relief(s) were also allowed by a separate order of the learned

Single Judge dated 4.4.2007. The aforesaid orders were

challenged before this Court in Civil Appeal Nos. 765 of 2008

and 766-767 of 2008 which were heard alongwith Transfer

Petition (C) No. 889 of 2007 which was filed by similarly

situated persons. By order dated 30.10.2009 all the civil

appeals and the transfer petition were dismissed by this

Court with the following directions :

"We have heard the learned senior counsel

appearing on behalf of the parties.

Learned counsel appearing for the parties

have taken us to various documents and

pleadings. On consideration of the totality of the

facts and circumstances of this case, in our

opinion, no case has been made out for our

interference under our extraordinary jurisdiction

Page 7

under Article 136 of the Constitution of India.

These appeals are accordingly dismissed.

However, as prayed for by the learned senior

counsel appearing on behalf of the appellants, we

direct the appellant Oil & Natural Gas Corporation

to implement the orders within three months.

Transfer Petition (Civil) No. 889 of 2007

In view of our order passed in the Civil

Appeals above-mentioned, no orders are

necessary in the transfer petition. The transfer

petition is disposed of."

10. Alleging non-implementation and disobedience of the

order dated 2.8.2006 passed in W.P. No. 21518 of 2000 as

affirmed by order dated 19.12.2006 in Writ Appeal No. 1290

of 2006 and order dated 30.10.2009 passed in Civil Appeal

No.765 of 2008, Contempt Petition (C) No. 161 of 2010 was

filed before the High Court wherein the impugned direction

for creation of supernumerary posts of Marine Assistant

Radio Operator was made by the order dated 19.1.2012. The

said order has been affirmed by a Division Bench of the High

Court by the impugned order dated 11.7.2002. Aggrieved,

the present appeal has been filed.

Page 8

11. At this stage, it may be necessary to take note of two

other Contempt Petition Nos. 141 of 2010 and 343 of 2010

which had been instituted in the High Court against the

similar order dated 4.4.2007 passed in Writ Petition Nos.

27500 and 27529 of 2006 which order had also been

affirmed by this Court in the connected civil appeals i.e. Civil

Appeal Nos.766-767 of 2008, as already noticed. Regard

must also be had to Contempt Petition (C) No. 130 of 2010

filed before this Court by similarly situated persons in respect

of the order dated 30.10.2009 passed in Transfer Petition (C)

No. 889 of 2007.

12. Insofar as Contempt Petition (C) Nos. 141 and 343 of

2010 are concerned, the same has been dismissed by the

High Court by its order dated 31.8.2010 holding that no case

of commission of contempt is made out. Contempt Petition

No. 130 of 2010 before this Court was ordered to be closed in

view of the averments made in an affidavit dated 9.3.2011

filed on behalf of the Corporation. Paras 6 and 7 of the said

affidavit would require to be taken note of and are being

extracted below.

Page 9

"6. I say that since there is no vacant post in the

cadre of Assistant Marine Radio Operator in the

Southern Region (to which region the Respondents

in Civil Appeal Nos. 765-767 of 2008 before this

Hon'ble Court belonged and to which region the

Petitioners in the present Contempt Petition

belong) and, no vacancy in the post of Assistant

Marine Radio Operator in the Southern Region has

arisen after the order and judgment dated

2.8.2006 of the Ld. Single Judge in Writ Petition

No. 21518 of 2000, the respondents in the said

Appeal could not be accommodated in the post of

Assistant Marine Radio Operator. Consequently,

until such vacancies arise and, in accordance with

the direction issued by the Ld. Single Judge of the

High Court (and upheld by this Hon'ble Court),

Respondent No. 1took the following steps :

(i) deployed the respondents in Civil Appeal

No. 765/2008, who formed a separate

protected class, as Supernumerary

Helpers in the scale of pay applicable to

Assistant Marine Radio Operators, so

that they are not rendered idle.

(ii) gave "pay protection" to the said

respondents for the pay drawn by

Assistant Marine Radio Operator from

the date of their absorption, i.e.

08.09.1994.

(iii) paid them the difference between the

"protected pay" and the pay previously

drawn by them as Junior Helpers from

the date of their absorption on

08.09.1994.

7. I say that even as on date there is no vacancy

in the post of Assistant Marine Radio Operator

Page 10

(Southern Region). However, since the Petitioners

herein have sought to be treated at par with the

Respondents in Civil Appeal No. 765 of 2008,

Respondent No. 1 is prepared to, in order to give a

quietus to the matter extend to the Petitioners the

same treatment and benefits aforesaid extended

to the Respondents in Civil Appeal No. 765 of 2008

with effect from the date of their absorption i.e.

with effect from 18.2.1998, as has been prayed for

by the Petitioners in the Writ Petition filed by them

in the High Court of Judicature of Andhra Pradesh."

13. The question that arises in the present appeal, in the

backdrop of the facts noted above, is whether the appellants

who are the officers of the Corporation and had complied

with the alternative direction contained in the order dated

2.8.2006 passed in Writ Petition (C) No. 21518 of 2000 would

still be liable for commission of contempt and the only way in

which the appellants can purge themselves of the contempt

allegedly committed is by creation of supernumerary posts of

Marine Assistant Radio Operators. An answer to the above

question centres around the contours of the power of the

Court while exercising its contempt jurisdiction.

Page 11

14. We have heard Shri Goolam E. Vahanvati, learned

Attorney General for the appellants and Shri P.P. Rao,

learned senior counsel for the respondents.

15. The learned Attorney General has urged that the

question of the very necessity of having/continuing the posts

of Marine Assistant Radio Operators in the Corporation was a

live issue in Writ Petition No. 21518 of 2000 as the

Corporation had contended that the work requirement of the

Corporation did not justify the continuation of the post in the

cadre of Marine Assistant Radio Operators, particularly, in the

SRCB where the Corporation was not engaged in any off-

shore operation. It is urged that in the light of the stand

taken by the Corporation, the option/alternative direction of

granting parity of pay to the respondents was issued. It is

not in dispute that the Corporation had complied with the

said direction. In a situation where the operational

requirements of the Corporation did not justify the retention

of the posts of Marine Assistant Radio Operators any further,

its officers cannot be faulted for not creating supernumerary

posts of Marine Assistant Radio Operators and instead

Page 12

creating posts of Junior Helpers to accommodate the

respondents and thereafter giving them protection/parity of

pay in terms of the option granted by the High Court. The

learned Attorney has further submitted that there being no

direction for creation of posts of Marine Assistant Radio

Operators in the order dated 2.8.2006 it was beyond the

power of the learned Judge, hearing the Contempt Petition,

to issue such a direction. The said error, being apparent,

ought to have been corrected in the appeal filed before the

High Court. The order of the Division Bench dated 11.7.2012

impugned in the present appeal is, therefore, open to

interference in the present appeal.

14. On the other hand Shri P.P. Rao, learned senior counsel

appearing for the respondents has contended that an

obligation to create supernumerary posts of Marine Assistant

Radio Operator is mandated by the very terms of the Order

dated 02.08.2006 passed in Writ Petition No. 21518 of 2000.

Shri Rao has contended that when supernumerary posts of

Junior Helpers have been created and parity of pay with the

higher post has been granted it is difficult to conceive why

Page 13

supernumerary posts of Marine Assistant Radio Operator

were not created in order to fully comply with the Order of

the High Court. It is also pointed out that it is evident from

the provisions of the relevant Regulations governing the

service conditions of the respondents i.e. Oil and Natural Gas

Corporation Ltd. i.e. Modified Recruitment and Promotion

Regulations, 1980, that had the respondents been absorbed

as Marine Assistant Radio Operators they would have earned

promotions under the Regulations which avenues stand

closed due to their absorption in the post of Junior Helper.

Shri Rao has also referred to the correspondence exchanged

between the Corporation and the Ministry of Petroleum and

Natural Gas, Government of India, which is available on

record, to show that there existed/exists a cadre of Marine

Assistant Radio Operator and the strength of the cadre

depends on the necessity of the operations of the

Corporation. The cadre strength is flexible depending on the

job requirement, it is urged. Shri Rao, therefore, has

contended that the action taken by the appellants in

purported compliance of the Court's Order dated 02.08.2006

Page 14

would still make them liable for contempt which can be

purged only by creation of posts of Marine Assistant Radio

Operator, as directed by the High Court.

15. The power vested in the High Courts as well as this

Court to punish for contempt is a special and rare power

available both under the Constitution as well as the

Contempt of Courts Act, 1971. It is a drastic power which, if

misdirected, could even curb the liberty of the individual

charged with commission of contempt. The very nature of

the power casts a sacred duty in the Courts to exercise the

same with the greatest of care and caution. This is also

necessary as, more often than not, adjudication of a

contempt plea involves a process of self determination of the

sweep, meaning and effect of the order in respect of which

disobedience is alleged. Courts must not, therefore, travel

beyond the four corners of the order which is alleged to have

been flouted or enter into questions that have not been dealt

with or decided in the judgment or the order violation of

which is alleged. Only such directions which are explicit in a

judgment or order or are plainly self evident ought to be

Page 15

taken into account for the purpose of consideration as to

whether there has been any disobedience or willful violation

of the same. Decided issues cannot be reopened; nor the

plea of equities can be considered. Courts must also ensure

that while considering a contempt plea the power available

to the Court in other corrective jurisdictions like review or

appeal is not trenched upon. No order or direction

supplemental to what has been already expressed should be

issued by the Court while exercising jurisdiction in the

domain of the contempt law; such an exercise is more

appropriate in other jurisdictions vested in the Court, as

noticed above. The above principles would appear to be the

cumulative outcome of the precedents cited at the bar,

namely, Jhareswar Prasad Paul and Another vs. Tarak

Nath Ganguly and Others

Ratnam Raju and Another

, V.M.Manohar Prasad vs. N.

, Bihar Finance Service

House Construction Cooperative Society Ltd. vs.

(2002) 5 SCC 352

(2004) 13 SCC 610

Page 16

Gautam Goswami and Others

Others vs. Subedar Devassy PV

and Union of India and

16. Applying the above settled principles to the case before

us, it is clear that the direction of the High Court for creation

of supernumerary posts of Marine Assistant Radio Operator

cannot be countenanced. Not only the Courts must act with

utmost restraint before compelling the executive to create

additional posts, the impugned direction virtually amounts to

supplementing the directions contained in the order of the

High Court dated 02.8.2006. The alterative direction i.e. to

grant parity of pay could very well have been occasioned by

the stand taken by the Corporation with regard to the

necessity of keeping in existence the cadre itself in view of

the operational needs of the Corporation. If despite the

specific stand taken by the Corporation in this regard the

High Court was of the view that the respondents should be

absorbed as Marine Assistant Radio Operator nothing

prevented the High Court from issuing a specific direction to

create supernumerary posts of Marine Assistant Radio

(2008) 5 SCC 339

(2006) 1 SCC 613

Page 17

Operator. The same was not done. If that be so, the

direction to create supernumerary posts at the stage of

exercise of the contempt jurisdiction has to be understood to

be an addition to the initial order passed in the Writ Petition.

The argument that such a direction is implicit in the order

dated 02.08.2006 is self defeating. Neither, is such a course

of action open to balance the equities, i.e. not to foreclose

the promotional avenues of the petitioners, as vehemently

urged by Shri Rao. The issue is one of jurisdiction and not of

justification. Whether the direction issued would be justified

by way of review or in exercise of any other jurisdiction is an

aspect that does not concern us in the present case. Of

relevance is the fact that an alternative direction had been

issued by the High Court by its order dated 02.08.2006 and

the appellants, as officers of the Corporation, have complied

with the same. They cannot be, therefore, understood to

have acted in willful disobedience of the said order of the

Court. All that was required in terms of the second direction

having been complied with by the appellants, we are of the

view that the order dated 02.08.2006 passed in W.P. No.

Page 18

21518 of 2000 stands duly implemented. Consequently, we

set aside the Order dated 19.01.2012 passed in Contempt

Petition No. 161 of 2010, as well as the impugned order

dated 11.07.2012 passed in Contempt Appeal No.2 of 2012

and allow the present appeal.

NEW DELHI,

FEBRUARY 4, 2014.

...…………………………CJI.

[P. SATHASIVAM]

.........………………………J.

[RANJAN GOGOI]

…..........……………………J.

[SHIVA KIRTI SINGH]

Page 19

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Chartered Accountant Finance

Thursday, February 6, 2014

[aaykarbhavan] Judgment

SC on power to punish for contempt

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