Contempt of court - failure to create a new post as per the orders - Contempt petition for implementation of orders - Apex court allowed the appeal and set aside the orders of High court -and held that 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 - since the High court not directed to create a superannuation post in main writ order , now can not supplement the same by contempt of court =
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. =
Writ allowed
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.”
For non implementation - contempt filed =
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. =
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 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. 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.
2014 ( February Part )judis.nic.in/supremecourt/filename=41199
P SATHASIVAM, RANJAN GOGOI, SHIVA KIRTI SINGH
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1816 OF 2014
Special Leave Petition (C) NO.23272 OF 2012
SUDHIR VASUDEVA, CHAIRMAN & MD. ... APPELLANT (S)
ONGC & ORS.
VERSUS
M. GEORGE RAVISHEKARAN & ORS. ... RESPONDENT (S)
J U D G M E N T
RANJAN GOGOI, J.
1. Leave granted.
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.
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.
4. In Air India Statutory Corporation and Others Vs. United Labour Union
and Others[1] 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.[2].
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 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.
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:
"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.”
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 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.
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.
“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 (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.
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 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 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 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 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[3],
V.M.Manohar Prasad vs. N. Ratnam Raju and Another[4], Bihar Finance Service
House Construction Cooperative Society Ltd. vs. Gautam Goswami and
Others[5] and Union of India and Others vs. Subedar Devassy PV[6].
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 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. 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.
...…………………………CJI.
[P. SATHASIVAM]
.........………………………J.
[RANJAN GOGOI]
…..........……………………J.
[SHIVA KIRTI SINGH]
NEW DELHI,
FEBRUARY 4, 2014.
-----------------------
[1] (1997) 9 SCC 377
[2] (2001) 7 SCC 1
[3] (2002) 5 SCC 352
[4] (2004) 13 SCC 610
[5] (2008) 5 SCC 339
[6] (2006) 1 SCC 613
-----------------------
18
contempt law - since the High court not directed to create a superannuation post in main writ order , now can not supplement the same by contempt of court =
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. =
Writ allowed
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.”
For non implementation - contempt filed =
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. =
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 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. 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.
2014 ( February Part )judis.nic.in/supremecourt/filename=41199
P SATHASIVAM, RANJAN GOGOI, SHIVA KIRTI SINGH
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1816 OF 2014
Special Leave Petition (C) NO.23272 OF 2012
SUDHIR VASUDEVA, CHAIRMAN & MD. ... APPELLANT (S)
ONGC & ORS.
VERSUS
M. GEORGE RAVISHEKARAN & ORS. ... RESPONDENT (S)
J U D G M E N T
RANJAN GOGOI, J.
1. Leave granted.
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.
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.
4. In Air India Statutory Corporation and Others Vs. United Labour Union
and Others[1] 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.[2].
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 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.
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:
"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.”
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 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.
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.
“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 (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.
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 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 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 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 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[3],
V.M.Manohar Prasad vs. N. Ratnam Raju and Another[4], Bihar Finance Service
House Construction Cooperative Society Ltd. vs. Gautam Goswami and
Others[5] and Union of India and Others vs. Subedar Devassy PV[6].
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 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. 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.
...…………………………CJI.
[P. SATHASIVAM]
.........………………………J.
[RANJAN GOGOI]
…..........……………………J.
[SHIVA KIRTI SINGH]
NEW DELHI,
FEBRUARY 4, 2014.
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[1] (1997) 9 SCC 377
[2] (2001) 7 SCC 1
[3] (2002) 5 SCC 352
[4] (2004) 13 SCC 610
[5] (2008) 5 SCC 339
[6] (2006) 1 SCC 613
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