A P VERMA PRINCIPAL SECRETARY MEDICAL HEALTH AND FAMILY WELFARE U P AND Vs. U P LABORATORY TECHNICIANS ASSOCIATION

JUDGEMENT

(1.) This contempt appeal has been preferred against the judgment and order dated 29.5.1997 of a learned single Judge in Civil Misc. Contempt Petition No. 955 of 1993. In the contempt petition Smt. Sumita Khandpal. Principal Secretary, Medical Health and Family Welfare and Dr. P. D. P Mathur Director General, Medical Health and Family Welfare were arrayed as opposite parties. In April, 1997, Smt. Sumita Khandpal was transferred and Sri A. P. Verma took over as Principal Secretary, Medical Health and Family Welfare. Dr. P. D. P. Mathur retired soon after filing of the contempt petition and Dr. H. C. Vaish was officiating as Director General. Medical Health and Family Welfare at the time of filing of the appeal. Therefore, the present appeal has been filed by Sri A. P. Verma and Dr. H. C. Vaish and not by those who were arrayed as opposite parties in the contempt petition.

(2.) U. P. Laboratory Technicians Association and two others filed Civil Misc. Writ Petition No. 8345 of 1989 against State of U. P. through Secretary, Medical Health and Family Welfare. U. P., Lucknow, Director General, Medical Health and Family Welfare and Director, Medical and Health Services with a prayer that a writ of mandamus be issued directing the respondents to give the same salary to the petitioners which is being paid to Laboratory Assistants. The writ petition was allowed by the judgment and order dated 3.2.1993 and the operative portion of the order reads as follows : "In the circumstances of the case, the petition is allowed and I direct that the Laboratory Technicians will get the same pay scale as that of Laboratory Assistants, within two months. Sri B. P. Srivastava, learned counsel for the petitioner has submitted that Senior Laboratory Technicians should get higher pay than that of Laboratory Technicians. In the present case, I have only held that the Laboratory Technicians should be given the same pay as the Laboratory Assistants. If the Senior Laboratory Technicians are wanting higher pay then they should make a representation to this effect giving details of the nature of duties they are performing and how these duties are more arduous than those of Laboratory Assistants. If such a representation is made within a month the same shall be decided within two months thereafter by a reasoned order. The petition is allowed. No order as to cost." The writ petitioners, namely, U. P. Laboratory Technicians Association and others filed Civil Misc. Contempt Petition No. 955 of 1993 under Sections 10 and 12 of the Contempt of Courts Act, 1971 (hereinafter referred to as the Act) praying that this Court may initiate contempt proceedings against the opposite parties for having wilfully flouted the Judgment and order dated 3.2.1993 passed in Civil Misc. Writ Petition No. 8345 of 1989 and to suitably punish them for the same. Notice was issued to the opposite parties to show cause why they should not be punished for having committed contempt of court. The opposite parties filed counter-affidavits. After hearing counsel for the parties, the learned single Judge passed the impugned order dated 29.5.1997 against which the present Special Appeal has been filed. In order to appreciate the controversy raised in the appeal, It is necessary to reproduce certain portions of the impugned order of the learned single Judge which are as under: "I will take up the second direction first. This Court directed the Senior Laboratory Technicians to make representation for higher pay scale within a month and the said representation was to be decided within two months. The Court did not specifically direct that the Senior Laboratory Technicians should be given better pay scale than that of the Laboratory Assistants. The Court only directed the respondents to decide the representation by a reasoned order. The representation has now been decided on 16.11.1994. A copy of the decision has been filed as Annexure-CA-3 to the supplementary counter-affidavit of Sri V. K. Srivastava, Section Officer, dated 17.11.1994. It is fantastic that the supplementary counter-affidavit was filed on 17.11.1994 and the decision was given on the representation only one day earlier, i.e., on 16.11.1994. It appears that this is only just to satisfy the stomach of the decision by putting something therein. The decision given by respondent No. 1 is in Hindi which if translated in English is that so far as the question of giving higher pay scale to the Senior Laboratory Technicians is concerned, it is hereby informed that the present pay scale of Senior Laboratory Technicians is Rs. 1,400-2,300 which is higher than that of the Laboratory Technicians whose present pay scale is Rs. 1,320-2,040. Therefore, there is no question of giving any more higher pay scale to the Senior Laboratory Technicians. Consequently, the representation dated 27.2.1993 is hereby rejected. What this Court desired was that the Senior Laboratory Technicians should make a representation for higher pay scale indicating therein the nature of duties they were performing and also how their duties were more arduous than that of the Laboratory Assistants. In other words, the position of the Senior Laboratory Assistants was to be compared with the position of the Laboratory Assistants, but the decision shows that the respondent No. 1 in a hot haste manner compared the pay scale of Senior Laboratory Technicians with that of the Laboratory Technicians. The respondent No. 1 did not advert to the duties assigned to the Senior Laboratory Technicians and the Laboratory Assistants and whether the duties of the Senior Laboratory Technicians are more arduous than that of the Laboratory Assistants and by a cryptic order rejected the representation of the petitioners. In my view, the order passed by respondent No. 1 is not in conformity with the direction issued by this Court.....In view of what has been enumerated above, it is manifest that the order of this Court has not at all been complied with. As regards the first direction, it is stated that the said direction too has been complied with, but a bare perusal of the order dated 16.11.1994 shows that there was only notional compliance and nothing else. The respondent No. 1 has included the personal pay in the pay scale of Laboratory Technicians and in this way equated the Laboratory Technicians with the Laboratory Assistants in the matter of pay scale. The direction issued by this Court in respect of Laboratory Technicians is crystal clear and there is no ambiguity in it. It was specifically directed that the Laboratory Technicians will get the same pay scale as that of the Laboratory Assistants, but the respondent No. 1 has calculated the personal pay also in the pay scale of the Laboratory Technicians. Personal pay is personal pay and cannot be said to be a part of the pay scale. Therefore, the first part of the direction was also not complied with. ............................................................................... ............................................................................... In view of what has been discussed above, I find that respondent No. I has done mud-washing and nothing else. In my view, this is no compliance of the order passed by this Court. However, an effort has been made to show that the Government Orders have been issued in compliance of the order passed by this Court dated 3.2.93 but that is only an eye-wash. I do not want to punish the respondents at this stage but depart only with a note of sorrow and with the remark that the karta of the family should not be vindictive against-his family members and should try to provide them justice as far as possible. Justice can be done every where and the administrative officer should not think that their work is only of administrative nature. In the matter like the present one, they also exercise quasi-judicial function and while deciding a representation, they should act as a Judge. Accordingly, the respondents are again directed to comply with the order of this Court dated 3.2.1993 in its letter and spirit. The matter has been clarified to a great extent although the order of the Court dated 3.2.1993 is specific and clear. List this petition on 17.9.1997 for further orders. If the order dated 3.2.1993 is not complied with, respondents should appear in person in this Court on the date fixed." Sri Ashok Khare, learned counsel for the respondents in this appeal (writ petitioners and applicants in the contempt petition) has vehemently urged that the learned single Judge had not imposed any punishment and has merely called upon the appellants to comply with the judgment and order dated 3.2.1993 of the writ petition and, therefore, the present appeal is not maintainable under Section 19 of the Contempt of Courts Act or even under Chapter VIII. Rule 5 of the High Court Rules. In support of his submission, he has placed reliance on Secretary State Social Welfare Advisory Board v. Shail Bala Saxena, 1996 ALJ 1998 Raseed Ahmad Khan v. Tej Narain, 1997 AWC 1540 : Sheo Charan v. Nawal 1997 AWC 1909 and Ved Prakash Kapoor v. Kamala Prasad Rai, 1997 AWC 1953. Sri Yatindra Singh, learned Addl. Advocate General has, on the other hand, urged that the appeal is maintainable under Section 19 of the Act in view of the law laid down in Pursottam Das v. B. S. Dhillon. AIR 1978 SC 1014 ; Vijay Krishna Goswami v. Suresh Chandra Jain, 1994 AWC 82 and Somesh Sachdeo v. Baldeo Raj. 1989 ALJ 928. He has further submitted that the order of the learned single Judge is ajudgment and consequently, the appeal is maintainable under Chapter VIII, Rule 5 of the Rules of the Court, in accordance with the view taken in J. S. Parthar v. Ganpati Duggal, 1997 SC 113 ; Bihar State Electricity Board v. Manmohan Prasad, 1990 BLT 69 and Ashok Raivu. Ashok Arora 1996 CWN 673.

(3.) An appeal is the "right of entering a superior court and invoking its aid and inter-position to redress an error of the Court below" and it is a creature of Stature (See Dayawati v. Inderjeet, AIR 1966 SC 1423 and Sita Ram v. State of U. P., AIR 1979 SC 745). Section 19 of the Act lays down that an appeal shall He as of right from any order or decision of the High Court in exercise of its jurisdiction to punish for contempt. In Barada Kanta Misra v. Justice Gati Krishna Misra, AIR 1974 SC 2255. It was held as follow : ".....It is only when the Court decides to take action and Initiates a proceedings for contempt that it assumes jurisdiction to punish for contempt. The exercise of the jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt whether suo motu or on a motion or a reference..... Where the Court rejects a motion or a reference and declines to initiate a proceeding for contempt, it refuses to assume or exercise jurisdiction to punish for contempt and such a decision cannot be regarded as a decision in the exercise of its jurisdiction to punish for contempt. Such a decision would not, therefore, fall within the opening words of Section 19 (1) and no appeal would lie against it as of right under that provision." The same view was taken in Pursottam Dass v. B. S. Dhillan, AIR 1978 SC 1014. In D. N. Taneja v. Bhajan Lal, 1998 SCC (Cri) 546, it was reiterated that the right of appeal is available under sub-section (1) of Section 19 only against any decision or order of a High Court in the exercise of its jurisdiction to punish for contempt. In Pursottom Das Goel (supra), it was observed : "In our considered judgment an order merely initiating the proceeding without anything further does not decide anything against the alleged contemnor and cannot be appealed against as a matter of right under Section 19. In a given case special leave may be granted under Article 136 of the Constitution from an order initiating the proceedings but that is entirely different." Similar view was again expressed in Union of India v. Mario Cabral, AIR 1982 SC 691. Interlocutory orders pertaining purely to the procedure of the Court has been held to be not appealable under Section 19 in Barada Kanta Misra v. Orissa High Court, AIR 1976 SC 1206 ; Pursottam Das v. B. S. Dhillan. AIR 1978 SC 1014 ; Somesh Sachdeo v. Baldeo Raj, 1989 ALJ 928 and Rasheed Ahmad Khan v.Tej Narain, 1997 AWC 1540.