Principal Commissioner of Income Tax vs. M/S Andhra Pragathi Grameena Bank

[2023/RJJP/008717] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Contempt Petition No. 457/2017 In S.B. Civil Writ Petition No.10667/2013 Dr. Manoj Kumar Sharma S/o Shri Vijay Kumar Sharma, aged about 29 years, R/o Quarter No. E-34 Ic, Khetrinagar, Tehsil Khetri, District Jhunjhunu, Rajasthan, At Present Working As Medical Officer Dental, Community Health Center, Buhana, District Jhunjhunu, Rajasthan ----Petitioner Versus 1. Mr. Veenu Gupta, Principal Secretary, Medical And Health Department, Government Secretariat, Jaipur, Rajasthan 2. Dr. V.k. Mathur, Director, Health And Family Welfare Services, Swasthya Bhawan, Tilak Marg, C-Scheme, Jaipur, Rajasthan 3. 4. Dr. Rajkumar Dani, Chief Medical And Health Officer, Jhunjhunu, Rajasthan State of Rajasthan through Principal Secretariat, Medical & Health Department, Government of Rajasthan Secretariat, Jaipur Rajasthan ----Respondents For Petitioner(s) : Mr. Dhoop Singh Poonia For Respondent(s) : Dr. V.B. Sharma, AAG HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Order 28/04/2023 This contempt petition has been filed alleging willful disobedience of the order dated 28.10.2014 passed in SB Civil Writ Petition No.10667/2013 and another connected matter. Learned counsel for the petitioner submits that the writ petition filed by him was disposed of by this Court vide order

[2023/RJJP/008717] (2 of 7) [CCP-457/2017] dated 28.01.2014 in terms of Government decision to give posting to such candidates who are pursuing DM/MCH Course in the concerned medical colleges in view of scarcity of specialist doctors in different subjects in the State and pay them regular salary instead of stipend during the period of study. He submits that despite rendering the services for the period he was pursuing his PG (Dental) course, he has not been paid regular salary. He, therefore, prays that the respondents may be directed to purge the contempt and they may further be punished suitably. Per contra, learned counsel for the respondents would submit that the scheme to pay regular salary instead of stipend for the candidates pursuing their PG course was floated looking to scarcity of specialist doctors in different subjects in the State of Rajasthan. He submits that since, the petitioner has done his PG (Dental) course from the State of Assam, he is not entitled for payment of regular salary. He, therefore, prays for dismissal of the contempt petition. Heard. Considered. This Court finds substantial force in the submission made by the learned counsel for the respondents. The object of the scheme floated by the State Government of Rajasthan to pay regular salary instead of stipend to the candidates pursuing their post graduation course in different subjects on their posting in the concerned medical colleges, has been on account of scarcity of such specialist in the State of Rajasthan. By no stretch of imagination, it can be presumed that the State of Rajasthan would propagate a scheme for payment of regular salary to the candidates pursuing their PG course from outside the State of

[2023/RJJP/008717] (3 of 7) [CCP-457/2017] Rajasthan on account of scarcity of specialist in the State. Such inference militates against the very spirit of the scheme. Hon’ble Supreme Court of India has, in case of J.S. Parihar versus Ganpat Duggar & Ors.: (1996) 6 SCC 291, held as under:- ““6. The question then is whether the Division Bench was right in setting aside the direction issued by the learned single Judge to redraw the seniority list. It is contended by Mr. S.K. Jain, learned counsel appearing for the appellant, that unless the learned Judge goes into the correctness of the decision take by the Government in preparation of the seniority list in the light of the law laid down by three Benches, the learned Judge cannot come to a conclusion whether or not the respondent had willfully or deliberately disobeyed the orders of the Court as defined under Section 2(b) of the Act. Therefore, the learned single Judge of the High Court necessarily has to go into the merits of that question. We do not find that the contention is well founded. It is seen that, admittedly, the respondents had prepared the seniority list on 2.7.1991. Subsequently promotions came to be made. The question is whether seniority list is open to review in the contempt proceedings to find out whether it is in conformity with the directions issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by the Court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the willful violation of the order. After re- exercising the judicial review in contempt proceedings,

[2023/RJJP/008717] (4 of 7) [CCP-457/2017] afresh direction by the learned single Judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act. Therefore, the Division Bench has exercised the power under Section 18 of the Rajasthan High Court Ordinance being a judgment or order of the single Judge, the Division Bench corrected the mistake committed by the learned single Judge. Therefore, it may not be necessary for the State to file an appeal in this Court against the judgment of the learned single Judge when the matter was already seized of the Division Bench.” A coordinate bench of this Court has, in the case of Roop Ram vs. Kamlesh Deka & Anr.-MANU/RH 0553/98, held as under: “9. It is settled law that in a case where the order is passed through mistake, inadvertence or by mis- understanding of the meaning and purport of the order, but unless it is intentional, no charge of contempt can be brought home. In: B.K. Kar v. Hon'ble the Chief Justice and his companion justices of the Orissa High Court and Anr. MANU/SC/0111/1961 : [1962]1SCR319, the Hon'ble Supreme Court has observed as under: “There may perhaps be a case where an order disobeyed could be reasonably construed in two ways and the subordinate court construed it in one of those ways but in a way different from that intended by the superior court. Surely, it cannot be said that disobedience of the order by the subordinate court was contempt of the superior court. There may possibly be a case where disobedience is accidental. If that is so, there would be no contempt.” 10. Similarly, in: Debabrata Bandopadhyay and other v. the State of West Bengal and Anr. MANU/SC/0366/1968:

[2023/RJJP/008717] (5 of 7) [CCP-457/2017] 1969CriLJ401, the Hon'ble Supreme Court has observed as under: “A question whether there is contempt of court or not is a serious one. The court is both the accuser as well as the judge of the accusation. It behaves the court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising from inveterate practices in courts and Tribunals. It is only when a clear case of contumacious conduct not explainable otherwise, arises that the contemner must be punished.... Punishment under the law of Contempt is called for when the lapse is deliberate and in disregard of one's duty and in defiance of authority. To take action in an unclear case is to make the law of contempt do duty for other measures and is not to be encouraged.” 11. The same view had been taken by the Hon'ble Apex Court in: M/s. Bharat Cooking Coal Ltd. v. State of Bihar and Ors. MANU/SC/0163/1987 : 1988 CriLJ 396 ; Dushyant Somal v. Sushma Sornal MANU/SC/0540/1981 : 1981CriLJ719 Niyaz Mohammed and Ors. v. State of Haryana and Ors. MANU/SC/0063/1995 : AIR1995SC308 ; and K.J. Pathare v. S.J. Pathare MANU/MH/0177/1969 : (1971)73 BOM LR 616. 12. Thus, there has to be a clear-cut direction and if there is a willful disobedience in compliance thereof, a party may lodge the grievance otherwise not. There may be a case where contempt petition may be filed that the judgment and order had been complied with only partially. In such a case the court has to examine: what were the circumstances under which the judgment could not be given effect to fully. In Lt. Col. K.D. Gupta v. Union of India and Ors. AIR 1989 SC 2011, this aspect was considered, as the petition was filed that the entire amount, as directed by the Hon'ble Supreme Court had not been paid to him. The Union of India took the plea that before making the payment to the applicant therein, it was under an obligation to deduct the Income Tax at source. The Hon'ble Supreme Court rejected the plea of contempt and held that in such a case neither the plea of mala fide nor of willful disobedience can be entertained as

[2023/RJJP/008717] (6 of 7) [CCP-457/2017] the Authority has acted bonafide in compliance of the law in force. It is also settled law that if the order is capable of being interpreted in two different ways, the court should not resort to the contempt proceedings. Moreover, the Court cannot modify the original order in the contempt petition. (Vide: State of Rajasthan and Ors. v. Monah Singh 1995 (Suppl. 2) SCC 153). 13. In the case of: Manish Gupta and Ors. v. Gurudas Ray, MANU/SC/0255/1995 : AIR 1995 SC 1359, the Apex Court observed that where an Authority passes the order in pursuance of the judgment of a Court and the order is to be passed in accordance with the Rules holding the field and the party is aggrieved of such an order, it is not permissible for such a party to bring a contempt petition if he is aggrieved of such an order. If the party feels that the order has not been made in accordance with relevant rules, he may pursue the remedy available to him in law for enforcing his rights. 16. Whether Rule 8 has properly been applied or not and the applicant is entitled for the financial benefits, are the matters of merit. It is not permissible to review an earlier judgment or order in the contempt petition. In: J.S. Parihar v. Ganpat Doongar MANU/SC/0037/1997 : AIR1997 SC 113, the Hon'ble Supreme Court has held that a review of the earlier judgment is not permissible in the contempt proceedings and the contempt court cannot go into the merit of the case and pass fresh order. If a party is aggrieved that the order passed is not in conformity with the directions, it would be a fresh cause of action for the aggrieved party to avail of the opportunity before an appropriate forum, but it will certainly not fall within the ambit of wilful violation of the order. 17. There is no direction for providing the petitioner financial benefits, also, and in absence of such clear direction, it would not be safe to infer that the petitioner was also held entitled for financial benefits under the judgment.

[2023/RJJP/008717] (7 of 7) [CCP-457/2017] 18. Thus, in view of the above, I find no force in the contempt petition. The contempt petition is dismissed. The petitioner-applicant may file a fresh writ petition if he is aggrieved by the said impugned orders and if so advised. The parties are left to bear their own costs.” In the aforesaid facts and circumstances of the case, this Court is not satisfied that the respondents can be held guilty of willful disobedience of the order dated 28.10.2014. Th contempt petition is dismissed accordingly. The notices are discharged. (MAHENDAR KUMAR GOYAL),J Manish/104