IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.08.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Contempt Petition No.593 of 2008 R.Periyasamy ... Petitioner Vs. Thiru.K.Allaudin Secretary to Government Highways Department Fort St. George Chennai - 9 ... Respondent Petition filed under Section 11 of the Contempt of Courts Act, 1971 praying to punish the respondent for having committed contempt of the court by disobeying the order of this Hon'ble court dated 26.07.2007 made in W.P.No.25234/2007. For Petitioner : Mr.P.Jayaraman, Senior Counsel for Mr.G.Elanchezhiyan For Respondent : Mr.L.S.M.Hasan Final, Government Advocate O R D E R
Heard the submissions made by Mr.P.Jayaraman, learned senior counsel representing Mr.G.Elanchezhiyan, learned counsel for the petitioner. The submissions made by Mr.L.S.M.Hasan Fizal, learned Government Advocate representing the respondent have also been heard. The materials available on record have also been perused.
2. The petitioner, who was working as Assistant Engineer in the Highways Department under the Government of Tamil Nadu suffered an order of punishment of stoppage of increments for two years without cumulative effect. The said order imposing punishment was passed on 29.05.2002. During the pendency of the disciplinary proceedings in which the said order imposing punishment was passed, panel for promotion to the cadre of Assistant Divisional Engineer was prepared. As the petitioner’s name was not included in the said panel and his juniors were promoted, he filed a writ petition thereafter in 2007 on the file of this court in W.P.No.25234/2007 praying for the issue of a writ of mandamus directing the State of Tamil Nadu represented by its Secretary to Government, Highways Department to consider his claim for promotion with retrospective effect, i.e. on par with the petitioner’s juniors with effect from the year 2001 as Assistant Divisional Engineer, without having any reference to the above said punishment of stoppage of increments.
3. The petitioner had couched the prayer in the said writ petition in such a way that the above said relief should be granted to him as given to others by virtue of G.O.Ms.No.344 Public Works (HK-1) Department dated 09.05.1995 and G.O.Ms.No.157 Public Works (H-1) Department dated 25.02.1996 and in the light of the orders of the High court dated 08.12.2006 and 05.06.2006 made in W.P.No.22975/2005 and W.P.No.3588/2004 respectively by considering the petitioner’s representation dated 06.06.2007.
4. A learned single judge of this court, after hearing, chose to dispose of the writ petition directing the first respondent therein, namely the respondent herein to consider the representation of the petitioner dated 06.06.2007 in the light of the above said GOs and in the light of the above said judgments of the High Court and pass orders within a period of 6 weeks from the date of receipt of a copy of the said representation from the petitioner.
5. Pursuant to the said order of this court, the first respondent has passed an order in his letter No.14013/HK1/2007-9 dated 05.06.2008 which reads as follows:-
VERNACULAR (TAMIL) PORTION DELETED
6. Complaining that the said order amounts to contempt of court, the petitioner has come forward with the present contempt petition. The learned senior counsel representing the petitioner drew the attention of this court to the judgment of the Hon’ble Supreme Court in Purnendu Mukhopadhyay and others Vs. V.K.Kapoor and another reported in 2007(7) Supreme 679 argued that when a relief had been granted by the court against the very same respondents in favour of one set of employees, the other employees who were similarly situated were also entitled to the benefit of the said order and that the employer could not selectively grant the relief to one set of employees and deny the same to other set of employees, who were similarly situated. The learned senior counsel also argued that, in the above said case, the Hon’ble Supreme Court which came across a similar situation, held that the act of the employer would amount to contempt. The relevant portion of the above said judgment of the Hon’ble Supreme court cited by the learned senior counsel for the petitioner is extracted here under for better appreciation.
“19. In a case of this nature, in particular having regard to the fact that the respondents have granted similar benefits to others, we fail to understand as to how the decision of this Court in J.S.Parihar (supra) and Mittanlal (supra) could be applicable. The State cannot treat employees similarly situated differently. It cannot implement the orders in relation to one and refuse to do so in relation to others. It is also not a case like H.S.Parihar (supra) where while implementing the orders, a particular stand has been taken by the employer giving rise to a subsequent cause of action. It is also not a case where the order of this court is capable to two interpretatins.[See State of Bihar v. Rani Sonabati Kumari, AIR 1961 SC 221, State of Kerala v. Unni (2007) (2) SCC 365 and Sneh Enterprises v. Commissioner of Customs, 2006(7) SCC 714].
20. For the reasons aforementioned the impugned judgment cannot be sustained. The appeal is allowed. We, however, before taking any punitive action against the contemnors at this stage, would like to issue a direction upon them to fully implement the orders of this court as modified by this Court on the same terms as was done in the case of employees similarly situated. In facts and circumstances of the case, the appellants shall also be entitled to costs which we quantify at Rs.25,000/-.”
7. As an answer to the above said submission made by the learned senior counsel on behalf of the petitioner, the learned Government Advocate, representing the respondent, submitted that the petitioners in Writ Petition Nos.22975/2005 and 3558/2004 could not be stated to be similarly situated with the petitioner herein for the simple reason that those persons, in fact challenged the order of punishment before the State Administrative Tribunal and then in the above said writ petitions, whereas the petitioner in the present petition, without challenging the order of punishment, simply wanted his name to be considered for promotion without having any reference to the punishment imposed on a charge framed under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules. The learned Government Advocate also contended that this court merely directed the respondent to consider the representation of the petitioner for inclusion of his name in the panel for promotion to the cadre of Assistant Divisional Engineer in the light of two Government orders and the orders of this court passed in respect of two other persons, namely A.Kaliyaperumal and G.Prakasam in writ petition Nos.22975 of 2005 and 3558 of 2004 respectively; that as those two persons’ cases could be differentiated from the case of the petitioner herein, the respondent had rightly rejected the request made by the petitioner to promote him to the cadre of Assistant Divisional Engineer with effect from 2001 when his juniors were promoted and that the said order could not be termed one passed in derogation of the order passed by this court in W.P.No.25234/2007, the writ petition filed by the petitioner.
8. It is the further contention of the learned Government Advocate that if at all the petitioner has got any grievance against the order passed by the respondent herein, the remedy available to the petitioner is to challenge the order in an appropriate forum and not by filing a petition for contempt. This court, is in complete agreement with the submissions made by the learned Government Advocate representing the respondent and therefore comes to the conclusion that the petitioner has not made out a case for contempt.
9. For the above said reasons, the contempt petition deserves to be dismissed.
10. Accordingly, the contempt petition is dismissed. It is made clear that the petitioner shall be at liberty to challenge the order of the respondent dated 05.06.2008 made in letter No.14013/HK1/2007-9 in an appropriate proceedings before an appropriate forum.
asr