PRATAP CHANDRA KAR Vs. MAJOR P K PATRA

JUDGEMENT

(1.) No court should have any sadistic pleasure to hold a litigant being guilty of contempt of court and punish him. At the same time, if a litigant with his undue arrogance desires to disobey the order of the court willfully and purposefully the court will have to rise on the occasion and adjudicate the matter and pass such order as law demands and the situation warrants.

(2.) The present is a glaring example where the litigant is the Director of Higher Education, Orissa. This case has its chequered career and background indeed. One Pratap Chandra Kar claiming to have passed M.A. in Oriya in 1981 from Utkal University, after due procedure and process, he was appointed as a Lecturer in Oriya in Oupada College in the district of Balasore. It is claimed that his appointment was within the prevailing yardstick valid and legal. The petitioner was selected for the post of Lecturer in Oriya and the appointment letter was issued by the Secretary of the Governing Body of the college in favour of the petitioner keeping in view the prevailing yardstick and pursuant to the letter of appointment dated 6-8-1985 the petitioner joined the college on 8-8-1985. There was termination of the service of the petitioner alleged to be illegal and being aggrieved thereby an appeal was filed before the State Education Tribunal wherein the Governing Body of the college represented by the Principal cum-ex-officio Secretary, the Principal himself as well as the Director of Higher Education, Orissa, were impleaded. The Tribunal by a comprehensive judgment dated 23rd June, 1994 allowed the appeal on contest. The Impugned order of termination was set aside and the petitioner was reinstated with all the service benefits including backwages. Both the Principal of the college as well as the Director of Higher Education appeared before the Tribunal contested the proceeding and suffered the judgment. No step was taken by either of the parties to go higher-up against the judgment of the Tribunal nor was there any prayer for review or recall of the said judgment. As the judgment of the Tribunal was not implemented and although the petitioner was found to be working and no current arrear salary had been released, the petitioner had to come to writ court once again by filing a comprehensive writ petition being O.J.C. No. 5687 of 1994. In the said writ petition besides the State of Orissa the Director of Higher Education the Principal-cum-Secretary of the college, and the Programme Coordinator. N.S.S. Utkal University were impleaded. It is also stated that at the relevant point of time the Governing Body of the college was being represented by the Director of Higher Education himself as Special Officer thereof and he was impleaded as opposite party No. 5. In the aforesaid writ petition the petitioner had made detailed averments that within the yardstick he had his appointment and he was entitled to get the salary and the college which was to obtain the grant-in-aid had the obligation to make payment to the petitioner who was to be deemed to be continuing in service with valid appointment against proper strength and within the yardstick. Unfortunately, no affidavit was filed either by the State or by the Director of Higher Education although they appeared at the time of final hearing. The said writ petition was disposed on 11-9-1995 in presence of the advocate for the writ petitioner as well as the learned Additional Government Advocate for opposite party No. 2, namely, the Director of Higher Education, and the learned advocates appearing for opposite party No. 3, the Governing Body of the college and for the Utkal University. Recording the submissions of all the learned counsel appearing for the respective parties the Division Bench recorded that two grievances of the writ petitioner were highlighted before the court. It was brought to the notice of the Division Bench that the decision of the Tribunal had not been challenged by any person before any Forum. It was contended that current salary was not being released. It was further submitted that there was no bat or impediment for realisation of the salary of the petitioner. It was conceded by the learned counsel appearing for the respective parties unconditionally that the current salary shall be released by the first week of October 1995 and payment of arrear salary will be considered by the Director within a period of three months from the date of communication of the Court's order and the result of the same will be communicated to the petitioner. Payment of arrear salary was not decided by the writ court although there was a direction by the Tribunal for payment of the back wages. So far as the arrear dues of the petitioner while he was acting as Programme Officer. N.S.S. is concerned, it was stated on behalf of the University that necessary papers had been taken by the Vigilance Department and it was recorded that if there be no dispute still pending the record would be re-constructed and steps would be taken by the University Authorities for release of the dues of the petitioner within a specified period. The matter did not end there. Both the Principalcum-Secretary of the Governing Body of the, college and the Director of Higher Education kept the matter in cold storage and did not take any effective steps for payment of the current salary to the petitioner. As a result thereof, the present contempt petition has been filed before this court on 9-11-1996 by the aggrieved petitioner, namely, Pratap Chandra Kar. The matter was heard by the Court on 17-5-1996 and the submission of the learned counsel for the petitioner as well as the learned Additional Government Advocate and the counsel for the Principal of the College were noted. The Court recorded its shock and surprise that due to the fight between the Principal and the Management, the current salary of the petitioner was not being paid. The reason should be obvious and this Court would consider after hearing as to who is responsible or for whose willful disobedience the order of the Court is not implemented. But an interlocutory order was made that in the meantime prompt steps would be taken to release the current salary of the petitioner and until the current salary of the petitioner is released, both the Principal and the Director of Higher Education will not receive their respective salaries in order to expedite the matter and to see that the writ petitioner who is successful at all levels may not go empty handed and remain hungry. Curiously enough, the Principal has filed an affidavit stating that he has promptly taken step to forward the bills to enable release of payment to the petitioner and an application has been filed by the Director of Higher Educational last to recall the order dated 17-5-1996 contending, inter alia, that the writ petitioner was appointed beyond the sanctioned strength and the State has no obligation to make any payment and the Director is not liable to take any step for release of the salary and he may not be held guilty for noncompliance of the order of the Court. Consequently, there is a prayer for recalling the order dated 17-5-1996 so that the bar for receiving his own salary is lifted and the grievance of the petitioner is left at large.

(3.) In this context, Shri Swamy, learned Government Advocate, has appeared to press the application of the Director of Higher Education for varying or modifying the order dated 17-5-1996 and has argued, inter alia, that the Government has got no liability; the writ petition is misconceived and the order of the Court is a pious one. The judgment of the Tribunal, if any, cannot have any binding force upon the Government and the liability rests upon the management of the college and the petitioner cannot force either the Government or the Director to cause any payment thereof.