JUDGMENT
U.B. Saha, J.
1. Heard Mr. Paonam, learned Counsel for the petitioner and Mr. Gunindro, learned Counsel for the respondents/alleged contemnors.
2. The instant contempt petition is filed by the petitioner for initiating contempt proceedings against the respondents for their willful violation and deliberate disobedience of order of this Court dated 5.8.1999 passed in CR No. 833 of 1993 wherein this Court disposed the said C.R. No. 833 of 1993 with the direction that the respondents shall consider the case of the petitioner for regularization of her service in the light of the order dated 25.1.91 issued by the Commissioner (Edn), Govt. of Manipur within a period of 3 (three) months from the date of receipt of this order. The respondents in the said CR No. 833 of 93 contested the case by filing counter affidavit. After hearing the learned Counsel for the parties, this Court made direction to the respondents as stated hereinabove.
3. The case of the petitioner in the writ petition i.e. CR No. 833 of 1993 is, for regularization of her service in the light of the order dated 25.1.1991 issued by the Commissioner (Edn.), Government of Manipur within a period of three months from the date of receipt of the said order.
4. In the instant contempt case, in reply to show cause, respondent Nos. 1 and 2 filed their affidavit in-opposition. While the matter was pending the petitioner also submitted application for addition of respondent Nos. 3 to 5 as the respondent No. 2 got transferred or retired. All the respondents filed their affidavit in-opposition denying the allegations made in the contempt petition. It is also stated in all the affidavit in-oppositions that vide order dated 25.1.91 only one post of LDC was created and the same has to be filled up by concerned departmental candidate and not from the open market. And in the above post creation order, only one post of LDC was created, therefore, Km Memi Luikham, LDC of RFLP, Ukhrul was transferred and posted vide order No. 1/14/91-AE(I) dated 31.3.1992 against the post of LDC created vide Government’s order No. 8/88/88-SE(AE) dated 25.1.91. After transfer of Km. Memi Luikham LDC on regular basis against the above post of LDC the service of the petitioner, L. Surbala Devi, as LDC was adjusted against the available post of LDC vacated by Miss Memi Luikham. Further, the petitioner was also found not suitable by the DPC held on 27.10.94.
5. Mr. Paonam, learned Counsel for the petitioner submits that office memorandum dated 28.1.2000 issued by the Secretary (Education/S), Government of Manipur (Annexure-D/2 to the affidavit in-opposition) itself speaks that the Court’s order was not complied with in true sense, particularly he referred the paragraph 4 of the said memorandum, which is quoted hereunder:
Whereas, in the posts creation order dated 25.1.91 issued by the Commissioner (Edn), Addl. Director of Adult Edn. Was requested to ensure that the post is to be filled up by candidates from within the Department concerned and not from the open market. In the above posts creation order, only 1 (one) post of LDC was created. Therefore, Km. Memi Luikham, LDC of RFLP Ukhrul was transferred and posted vide order No. 1/14/91-AE(I) dated 31.3.1992 against the post of LDC created vide Government’s order No. 8/88/88-SE(AE) dated 25.1.91. After transfer of Km. Memi Luikham LDC on regular basis against the above post of LDC created vide order No. 8/88/88-SE(AE) dated 25.1.91, the service of the writ petitioner L. Surbala Devi, as LDC was adjusted against the available post of LDC vacated by Miss Memi Luikham vide order No. 15/3/92-AE dated 10.6.1992 and its Corrigendum No. 15/3/92-AE dated 18.6.92
6. Mr. Paonam, also contended that this court while passing the order in the writ petition directing the respondents to consider the case of the petitioner for regularization in the light of the order dated 25.1.91 was very much aware about the fact, inter alia, that the petitioner was holding the post of LDC created by the aforesaid order. And the said order dated 20.1.2000 (Annexure-D/2 to the affidavit in-opposition) is also not passed within the stipulated period granted by the Court i.e. within three months from the date of order. For non consideration of the case of the petitioner for regularization in view of the Court’s order within the stipulated period itself is violation of the same, for which the respondents are liable to be punished under the Contempt of Courts Act. Mr. Paonam further contended that in the name of impossibility the respondents cannot ignore the order of the court and flout the same to deprive the petitioner from getting the fruits of his case, and in the instant case, the respondents flout the court’s order on the question of impossibility which itself is a contempt, according to him. In support of his argument, he relied upon para Nos. 4 and 6 of the judgment of the Apex Court in the case of Union of India and Ors. v. Subedar Devassy P.V. . For better appreciation the said two paras are reproduced hereunder:
4. On the question of impossibility to carry out the direction, the views expressed in T.R. Dhananjaya V.J. Vasudevan need to be noted. It was held that when the claim inter se had been adjudicated and had attained finality, it is not open to the respondent to go behind the orders and truncate the effect thereof by hovering over the rules to get around the result, to legitimize legal alibi to circumvent the order passed by a court.
6. If any party concerned is aggrieved by the order which in its opinion is wrong or against the rules or its implementation is neither practicable nor feasible, it should always either approach the court that passed the order or invoke jurisdiction of the appellate court. Rightness or wrongness of the order cannot be urged in contempt proceedings. Right or wrong, the order has to be obeyed. Fluting an order of the court would render the party liable for contempt. While dealing with an application for contempt, the court cannot traverse beyond the order, non-compliance with which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test the correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible.
7. On the other hand, Mr. Gunindro, learned Counsel for the respondents submits that though the order of this Court was not complied within the stipulated period, the same was ultimately complied with on 20.1.2000 vide office memorandum dated 20.1.2000 (Annexure D/2 to the affidavit in-opposition) from which, it will be evident that the respondents considered the case of the petitioner for regularization in the light of the order dated 25.1.1991 as per the direction of this Court. Even if the said consideration is not in the true sense consideration and compliance of court’s order to the petitioner but the same should be treated as substantial compliance of court’s order, as the respondents considered the case of the petitioner for regularization in terms of the court’s order and petitioner of the instant case fails to make out any prima facie case that the respondents action/order is willful and international violation of Court’s order.
8. He further contended that when the order was passed giving direction to consider case of the petitioner for the regularization, at that relevant point of time, respondent No. 1 was not the Secretary/Commissioner, Education(S) and none of the respondent Nos. 3-5 were the officials in whose control the alleged obedience of direction falls. A direction when given to the State respondents all the respondents in the writ petition are liable being Government is a machinery in personal and delay in obedience of the direction is on the part of many hands, hence the delay caused for consideration of the case of the petitioner for regularization is not the fault of the respondents but it was due to compliance of some administrative procedure, which the respondents are bound to follow. In support of his argument, Mr. Gunindro, referred para 9 of the decision of this Court in Manik Chandra Pal v. B.K. Chakraborty 2004 (Suppl.) GLT 180 and contended that the respondent is not the only official in whose control the obedience of direction falls. There is government machinery and delay in obedience of direction is on part of many other hands and in the instant case, the respondents have compllied with all the acts within their control and they did not leave anything unturned for compliance of the court’s order but the post created vide order dated 25.1.91 was filled up prior to the court’s order and there is neither willful nor deliberate violation of directions. For better appreciation, para 9 of Manik Chandra Pal (supra) is quoted hereunder:
9. Regarding being had of the complex reality of the office organization and functioning, which inevitably involved time consuming decision making processes it cannot be said that such a delay in finalizing the payment of the said retiral benefits would constitute willful of intentional violation of the order of this Court. It is true that final payment of G.P. Fund could not be made within the time stipulated by this Court but on the facts and circumstances of this case, such delay is inevitable and excusable. In so far as the payment of pension is concerned. Annexure-R/2 shows that the Principal in-charge of the B.B. Memorial College, Agartala had already submitted the pension and other retiral benefits proposal to the Office of the Accountant General, Tripura by 14.07.2003 and that reminder for expediting the release of the pensionary benefits was also made therein. It is submitted by the learned Counsel for the respondent that this Annexure clearly shows that the respondent alone is not the authority for processing the pension papers and on the contrary it shows that it was the Principal in-charge, B.B. Memorial College, Agartala and the Director of Higher Education, Government of Tripura, who are equally responsible for the release of the pensionary benefits to the petitioner, In any case, it is submitted by the learned Counsel for the respondent that once the pension proposal was submitted to the Office of the Accountant General, Tripura on 14.07.2003, any delay in sanctioning or releasing the said pensionary benefits thereafter cannot be held to be the responsibility of the respondent. He also admits that there was some delay in sending the pension proposal to the Office of the Accountant General, Tripura, which he said, is due to the requirement to comply with Rule 68, 69 and 74 of the Pension Rules.
9. It is also settled position of law that every violation of the Court’s order cannot be treated as contempt unless the said order is violated intentionally or with oblique motive to frustrate the order of the Court or lower down majesty of the Court. In the instant case it is a fact that the State respondents did not consider the case of the petitioner within the stipulated period as allowed by the Court but ultimately they considered the case of the petitioner as per the direction of this Court which will be evident from the order dated 20.1.2000. It also appears from record that respondent No. 1 joined in the post of Secretary Education i.e. 6.9.99 and when the matter came to his knowledge he tried to comply with the court’s order and ultimately complied with the same. The relevant portion of the order dated 20.1.2000 at Annexure-D/2 to the affidavit in-opposition filed by respondent No. 1 is quoted hereunder:
As per direction of the Hon’ble High Court passed on 5.8.99 in C.R. No. 833/93, the case of the writ petitioner, L. Surbala Devi is considered in the light of the order dated 25.1.91. As the post created vide order No. 8/88/88-SE(AE) dated 25.1.91 has been occupying on regular basis till today by Memi Luikham since the issuance of order dated 31.3.92 and the post being already filled up by a candidate within the Department, L. Surbala Devi cannot be appointed against the said post.
In the above facts and circumstances, the ad hoc service of L. Surbala Devi, LDC cannot be regularized in the light of the order dated 25.1.91 on regular basis to the post of LDC. Due to non availability of regular vacant post of LDC in the Department at present, no regular appointment of LDC can be made. Her case may be considered with O. Bina Devi. Liankat Ali and Ors. who are similarly situated persons as and when a regular vacant post of LDC is available in the Department by holding a regular DPC according to the Recruitment Rules.
The respondents complied with the order of this Court by the aforesaid order dated 20.1.2000 and the said compliance may not satisfy the petitioner as the same was not passed within the stipulated period in the light of the order passed by this Court in its true sense, but it cannot be presumed from the records available that the order dated 20.1.2000 was passed intentionally to flout the court’s order. It is also settled that if any authority complied the order of the Court with their own understanding without any ill motive or intention then also the action of the authority would not come within the ambit of contempt.
10. The weapon of contempt is only to maintain the dignity of the majesty of law and not to execute the direction or implementing the Court’s order for which alternative remedy in law is prescribed. There is also no quarrel with the proposition laid down by the Apex Court in Subedar Devassy PV (supra) to the effect that while dealing with an application for contempt, the Court cannot traverse beyond the order and contempt Court cannot test the correctness or otherwise of the order or give additional direction. Further, an aggrieved party like the present petitioner has no right to insist that the court should exercise such jurisdiction of contempt, as contempt is between the contemnor and the Court. [See R.N. Dey and Ors. v. Bhagyabati Pramanik and Ors. ]
11. This court is of the further opinion that initiation of contempt and punishment of the contemnor(s) is/are, in fact, the last weapon in the armoury of the Court for non compliance and/or violation of its order and that should be used sparingly. The Court has also to keep in mind that there may be certain reasons/hurdles for the party which is not within their control to whom direction was given for delayed compliance of the order. If the aggrieved party come with a definite clarification/reasons for non compliance of such order within time, in that case the court has to consider the submission of that party with some leniency. But in the instant case though the respondents tried to regularize the service of the petitioner after due consideration in compliance of the Court’s order, they found the post, which was created vide order 25.1.1991 to have been occupied by another person namely Memi Luikham before the order was passed by the Writ Court in the aforesaid Civil Rule. Therefore, according to this Court, the action of the respondents cannot be considered as violation of Court’s order.
12. The aforesaid views of this Court get support from the decision of the Apex Court in the case of Dr. Pradip Kumar Biswas v. Subrata Das and Ors. wherein it is held that “the contempt of court is a special jurisdiction to be exercised sparingly and with caution whenever an act adversely affects the administration of justice or which tends to impede its course or tends to shake public confidence in the judicial institutions. This jurisdiction may also be exercised when the act complained of adversely affects the majesty of law or dignity of the courts. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law.”
13. It is also settled position of law that contempt court cannot convert it as a writ court as well as the appellate authority of the said writ court and to see the correctness of the order, contempt court can only see whether the order of the Court for which contempt petition is filed has been flouted intentionally or not and the delay if any, for compliance is reasonable or not. If the non compliance and delay for compliance are not intentional then it would not be proper for the Contempt Court to initiate any proceeding and punish the respondents as asked for by the petitioner.
14. Accordingly, this court is of the opinion that no clear case of contempt is made out. It also appears that though the matter is listed for hearing no contempt proceeding has been initiated till date since the petition was filed in the year 1999.
15. For the foregoing reasons, no case of contempt is made out; accordingly, the instant contempt petition is dismissed.
