ORDER
Bhanwar Singh, J.
1. This application has been filed under Article 215 of the Constitution of India, read with Section 12 of the Contempt of Courts Act.
2. Shambhoo, the petitioner is one of the petitioners in writ petition No. 598 (SS) of 1998 which is still pending before this Court. An interim order was issued in the writ petition on 17-5-1999 whereby the respondents 1 to 4 of the said petition were directed not to make any appointment or recruitment or engagement otherwise than through the agency of a contractor. The members of Bhartiya Khadya Nigam Mazdoor Sangh were also not to be displaced from their respective posts, if their services have not already been terminated. Again on October 25, 1999, this Court directed the opposite-parties to engage the petitioners of the aforesaid writ petition on daily wage basis keeping in view their past services rendered in the Corporation. Shambhoo and some other petitioners had earlier filed a writ petition No. 3294 of 1987 and a Division Bench of this Court vide its order dated 14-5-1987, directed that the members of the petitioner shall not be displaced from their jobs, if they have not already been terminated. The opposite parties on their own sweet will and deliberately disobeyed the orders referred to above and engaged about 132 new persons ignoring the claim of the petitioner Shambhoo and other petitioners of writ petition No. 598(SS) of 1998. The opposite parties were expected not to have ignored the orders referred to above and engaged new persons. Shambhoo Nath and 16 other persons made a representation on 16-11-1999 to the Senior Regional Manager, Food Corporation of India, opposite party No. 1 and requested to honour and implement the orders of the Court. A copy of the said representation is Annexure 5 to the petition. When the opposite parties failed to comply with the Court's orders, the petitioner was compelled to file this contempt petition.
3. The Senior Regional Manager, Mr. H.L. Prasad, who had been transferred to Delhi by the time of filing his counter-affidavit on 15-5-2000, asserted that all sincere efforts were made to induct the petitioners on the job and nearly 217 number of required labourers had been engaged with effect from 1-3-1998. It was pleaded further that neither he had committed breach of the Court's orders nor ignored the claim of the petitioners.
4. Mr. Asha Ram, District Manager, Food Corporation of India, Civil Lines, Faizabad filed his detailed counter-affidavit reciting therein that previously when the labourers were engaged through contractor, different sets of labourers were brought to work from time to time. The engagement of the workers was dependent upon the workload and at times, the number of such labourers was reduced. In an earlier Writ Petition No. 3294 of 1987, this court issued an interim order on May 14, 1987 directing that members of the Bhartiya Khadya Nigam Mazdoor Sangh shall not be displaced from their respective posts unless their services had already been terminated. This direction was confirmed vide order dated 8th January, 1988. However, in the meantime, the system of engaging labourers through contractor was abolished and thereafter, all workers were engaged on Direct Payment System Basis (for short DPS). In view of, the introduction of DPS and this Court's Order of January 8, 1988, it became necessary to identify those persons who had been working earlier continuously for the last three years. A High Power Committee of six officers was appointed to identify the various contending persons who were entitled to be appointed under the Direct Payment System. The committee identified as many as 217 workers (Copy) and all such persons were appointed. Those who worked for larger number of days were given priority over the workers who had worked for lesser number of days. As the name of the petitioners except Radhey Shyam Yadav did not figure in the abovementioned list, an application was moved on behalf of the Food Corporation of India on 23-12-1999 for recall of the order dated 25th October, 1999 whereby this Court had directed to engage the petitioners on daily wage basis as they had already worked earlier and their names were found in the list of workers. The said application was opposed by the petitioners but it has not yet been decided. After filling 217 vacancies, no vacancy was available for the appointment of 17 petitioners and therefore, they could not be engaged. Further, it was asserted by Mr. Asha Ram that in the Writ Petition No. 3294 of 1987, initially no list of workers was submitted but when Chet Ram, the petitioner of the said Writ Petition was asked to give a list, he submitted a list of 379 workers but the names of the 17 labourers/petitioners of Writ Petition No. 598 (SS) of 1998 did not figure therein. A perusal of the said list (Annexure 2) enclosed, with the Affidavit simply shows the name of Radhey Shyam Yadav and not that of the other 17 workers. The 18th petitioner, namely, Radhey shyam Yadav, who is Petitioner No. 2 of the Writ Petition was provided job, as his name was included in the said list. In this way, the cause of the 17 petitioners was not even espoused by the Bhartiya Khadya Nigam Mazdoor Sangh. Radhey Shyam Yadav has deliberately concealed the fact of his being provided with the job but in order to pressurize the management, he joined hands with the other petitioners. In fact, as supplemented further by the District Manager, the opposite-parties have not committed any contempt of this Court's Orders.
5. The other opposite-parties Mr. J. S. Gill and Mr. B.K. Agarwal have also taken the same defence. In addition, the Managing Director, Mr. J.S. Gill by submitting his counter-affidavit dated March 17, 2000 stated that he joined the Food Corporation of India on February 9, 2000 and prior to the said date, the genuine labourers had been identified and the required number of 217 labourers had been engaged. In this way, he had not committed any contempt of this Court's Orders.
6. Similarly, Mr. B.K. Agarwal, Senior Regional Manager, Food Corporation of India stated that the petitioners being not identified as the genuine labourers were not engaged. He has also taken the shelter of the application for recall of the order dated 25th October, 1999, breach of which has been alleged in this contempt Petition.
7. On having heard learned counsel for all the parties, it becomes relevant to ascertain from the record as to whether the opposite-parties are guilty of the contempt of this Court's Orders dated 17th May, 1999 and 25th October, 1999. In this context, it may be observed on perusal of the two orders that the opposite parties were restrained from making any appointment or recruitment or engagement of any labourer otherwise than through the contractor or agent and secondly, they were also mandated to engage the petitioners as daily wagers. The reproduction of the said two orders would facilitate in appreciating the real controversy.
8. The order dated 17th May, 1999 reads as follows :--
"Hon'ble U.K. Dhaon
Heard learned counsel for the petitioners and Sri Shafiq Mirza, appearing on behalf of opposite parties No. 1 to 4.
Earlier petitioners had approached this Court through Bhartiya Khadya Nigam Mazdoor Sangh by filing writ petition which was registered and numbered as W. P. No. 3294/87 in which an interim order was passed on 14th May, 1987 to the effect that till the next date of listing members of the petitioner shall not be displaced from their respective posts if they have not already been terminated. This order later on was confirmed by this court on 8-1-1988. The said writ petition is still pending in the Court.
Grievance of the petitioners is that they have not been engaged by the respondents although earlier they were working in Food Corporation of India. Counter and Rejoined Affidavits have been exchanged. List this petition in the second week of August, 1999.
In the meantime, respondent Nos. 1 to 4 shall not make appointment or recruitment or engagement other than through contractor or agent."
9. The other order postulates as below :
"Hon'ble U.K. Dhaon. J.
Heard Sri K.S. Bajpai, learned counsel for the petitioners and Sri Shafiq Mirza, learned counsel appearing on behalf of the Food Corporation of India.
Grievance of the petitioners is that they have not been engaged by the Food Corporation of India although they were working in the year 1993. In support of their contention petitioners have filed a list of the members, a copy of which is Annexure No. 3 to the writ petition. Petitioners further submit that earlier also they approached this Court through Bhartiya Khadya Nigam Mazdoor Sangh by way of a writ petition which was registered as W. P. No. 3294/87 in which an interim order was passed on 14th May, 1987 which was extended vide order dated 8th January, 1988. Learned counsel for the petitioners further submits that the Food corporation of India is engaging the persons of its own choice although in pursuance of the interim order dated 14-5-1987 passed in W. P. No. 3294/87 the opposite parties are under obligation to engage the petitioners as they were also working in the year 1987 when the W. P. No. 3294/87 was filed. He has also relied upon a decision of the Apex Court reported in 1999 Lab IC 1323 (AIR 1999 SC 1160). Secretary, Haryana State electricity Board v. Suresh.
In view of the aforesaid facts, opposite parties are directed to engage the petitioners on daily wages basis as they have already worked earlier in the Corporation and their names find place in the list of workers."
10. As is evident by virtue of the order dated 17-5-1999 (Annexure 1) the opposite-parties were restrained from making any appointment or recruitment or engagement otherwise than through the contractor or agent. In para 8 of the Contempt Petition, it is recited that the opposite-parties had flouted the abovementioned Court's Order by engaging 132 labourers ignoring the petitioners claim on the basis of the Order (Annexure 1). Mr. Asha Ram, in his counter-affidavit, has denied engagement of any new labourer. He has, however, stated that the Food Corporation of India, Barabanki Depot engaged 217 workers on the basis of a list prepared by a Committee. The said list was prepared in the year 1997 and by then, the Direct Payment System being introduced, all the 217 labourers were engaged with effect from 1-3-1998 (Para 6 of Mr. B. K. Agarwal's Supplementary Affidavit). After engagement of these workers from March 1, 1998, the opposite-parties have not engaged any worker either on daily wage basis or otherwise. The petitioners have not pointed out the name of any worker who might have been engaged after the aforesaid date or after the order dated 17-5-1999 (Annexure 1) was issued. In this way, the opposite parties cannot be held guilty of breach of order (Annexure 1). The reference to the orders passed in Writ Petition No. 3294 of 1987 was an averment of the petitioners. As a matter of fact, breach of any order passed in that petition has not been pointed out in this petition. Other contempt petitions between the parties are also pending but we have to confine the scope of our discussion upto the two orders (Annexures 1 and 2) of Writ petition No. 598 (SS) of 1998.
11. The other Order dated October 25, 1999 (Annexure 2) appears to indicate that the petitioners had to be engaged by the opposite parties on daily wage basis as they had worked earlier in the Food corporation of India and their names found placed in "the list of workers. It is significant to mention that this order was passed after hearing both the parties' counsel. Whereas Mr. K.S. Bajpai addressed the Court on behalf of the petitioners, Mr. Shafiq Mirza argued on behalf of the Food Corporation of India. A careful perusal of that order reveals that it was alleged on behalf of the petitioners that they were working in the year 1993 and in support of the their contention they had filed a list of the members of Bhartiya Khadya Nigam Mazdoor Sangh, which was earlier placed reliance upon by the President of the Sangh in Writ Petition No. 3294 of 1987. It was in this background that the opposite parties vide Order dated 25th October, 1999 were directed to engage the petitioners on daily wage basis. All the opposite-parties had categorically denied that the petitioners worked in the Barabanki Depot of Food Corporation of India. In this regard, it may be observed that there was no question as to whether the 18 petitioners of Writ Petition No. 598 (SS) of 1998 worked as labourers of the Food Corporation of India or not. The opposite parties were not competent to sit over in appeal against the interim mandamus issued by this Court and arrive at a conclusion that since the petitioners did not work as labourers they were not entitled to be engaged or for recruitment. The opposite parties were under a writ of mandamus whereby they were directed to engage the petitioners. Of course, it was well within their right to approach the Court for recall of the Order but unless and until, the said order was recalled, the opposite-parties were under a legal obligation to comply with it. In other words, it may be mentioned that they were not at liberty either to follow or to move the Court for recall of the order. If their application for recall was either not disposed of or declined, they should have carried out the writ of interim mandamus. By questioning the validity and sanctity of the Order of October 25, 1999, they have committed a gross contempt of this court and certainly are liable to action.
12. Even the Magna Carta of their defence theory that the Bhartiya Khadya Nigam Mazdoor Sangh did not include the petitioners' names except that of Radhey Shyam Yadav as the members of the Sangh is false. In para 4, the opposite party No. 2, Mr. Asha Ram, recapitulated that while submitting a list of its members in Writ Petition No. 3294 of 1987, the Sangh did not include the names of 17 petitioners. In para 11 of his Affidavit, he has enclosed the said list of 379 labourers. It is signed by Chet Ram, an office bearer of the Sangh. It is relevant to note that this list of 379 labourers is the same, which was relied by the 18 petitioners in Writ Petition No. 598 (SS) of 1998. A perusal of these two lists would clearly point out that it was absolutely wrong on the part of Mr. Asha Ram and other opposite-parties to have submitted that the seventeen petitioners were not included in the list of the Sangh. Their names may be spotted in the list and the details are as follows :--
S. No.
Name of the petitioner
Reference in the list of 379 workers submitted by Bhartiya Khadya Nigam Mazdoor Sangh
Page No.
S. No.
1.
Shambhoo
1
5
2.
Radhey Shyam Yadav
2
18
3.
Hanuman
11
168
4.
Shiv Prasad
11
166
5.
Tika Ram
11
161
6.
Hari Ram
18
275
7.
Shravan Kumar
20
305
8.
Moti Lal
11
162
9.
Surendra Rai
25
Annexure 3A
10.
Mahesh Kumar
18
274
11.
Subhash Maurtya
2
25
12.
Smt. Daulat Devi
9
129
13.
Darshan
11
156
14.
Manoi Kumar alias Dharmendra Kumar
19
290
15.
Brltesh Kumar Slnch
16
246
16.
Moh. Yakoob
22
346
17.
Ram Sumer
2
21
18.
Bhanu Pratau Sinfih
12
180
13. It is amazing as to how the opposite parties have asserted in their counter-affidavits that the petitioners' names were missing from the list of 379 workers submitted by the Bhartiya Khadya Nigam Mazdoor Sangh in the aforesaid writ petition. If their names are there, the defence version of the opposite parties falls to the ground and they can obviously be held responsible for wilful breach of the Court's Order dated 25th October, 1999. Apart that they would also be guilty of perjury. It is meaningless for the opposite-parties to seek an excuse of their posting on their respective positions subsequent to the order having been issued. Whatever may be the date of their appointment and posting, they were and are still under an obligation to comply with the Court's Order. It cannot be used as a defence weapon by anyone of the opposite-parties that his predecessor did not obey the order and he came much after the order being served upon the former. The order of the Court is operational till today. Therefore, it should have been obeyed at the earliest of its having come to the notice of a particular authority.
14. The orders passed in other writ petitions may not be very relevant from our present purpose, as the order in question was not passed with some conditions. If a conditional order had been issued in Writ Petition No. 5164 of 1999 by a different set of labourers, it will not nullify the orders passed in Writ Petition No. 598 (SS) of 1998. Learned counsel appearing on behalf of the Food Corporation of India referred to an order of 1st October, 1999 passed in Writ Petition No. 5164 of 1999 and contended that the said order was incompatible with the orders passed in Writ Petition No. 598 (SS) of 1998. The order in the former writ. petition was to the effect that if the work and post are available, the petitioners shall be allowed to continue and be paid salary. Mr. Asha Ram posed a question in para 18 that how he could have implemented the Court's orders passed in two petitions? As a matter of fact, the question of the District Manager is fallacious. There was no conflict in the orders of the two writ petitions nor any conflict has been pointed out. He has simply narrated a situation that the Central Government Organisation could not have engaged any labourer exceeding the requirement and for engagement or recruitment of labourers, a specific procedure had to be followed. If the higher authorities can punish an officer for (not) carrying out the execution of the Court's Order, then he and the other senior authorities have to be punished for contempt of the Court as, how so ever high an authority may be placed and whatsoever difficult situation may come across them in following the procedure, the majesty of the Court has to be upheld. The Court's Orders are passed leaving no discretion with the authorities to follow or not to follow it but to carry it out by all means and particularly, when an order has been passed by a Court after hearing both the parties. Former or subsequent posting elsewhere will not come to the rescue of the opposite-parties as all of them were, at relevant point of time, in their position and as such under a legal obligation to obey the court's orders. Further, since the said order has not been recalled, the Court would not go beyond the scope of the order and determine a question in the contempt proceeding as to whether the petition filed by the petitioners was or was not maintainable. Even if it was a difficult question of fact requiring a determination by asking both the parties to lead their evidence, this Court, while sitting in contempt jurisdiction, would not enter into the question of the validity of the order on such a ground unless the order was absolutely invalid or impossible to be carried out. This Court would not enter into a debate of its legal or factual status.
15. Similarly, the introduction of Direct Payment System cannot be accepted to be a sustainable ground as the 17 petitioners could have been engaged in compliance of the Court's Order under the same Direct Payment System. The Court did not issue any direction vide Order dated 25th October, 1999 to engage the petitioners only through a contractor -- a practice which had since been abolished. The exercise of identifying the so-called genuine labourers and selecting them for job would have also been no hindrance in engaging the petitioners. It is not acceptable that there were only 217 posts available with the opposite parties. Earlier 379 workers were engaged and if their number had to be reduced proportionate to the work, the higher authorities should have issued some notification issuing guidelines for the district and regional authorities to act upon. In the absence of any such guidelines or fixation of the posts, the contention of the opposite parties that the required number of workers had already been engaged and therefore, there was no room for the petitioners to be accommodated is meaningless and rejected. Although, it is not proved from the record that there were only 217 posts available for the workers, yet even if for argument's sake, it is borne in mind that the said figure of labourers had some relevance vis-a-vis the work, the opposite parties with a view to implement and obey the Court's Order of Oct. 25, 1999 and should have created supernumerary posts for engagement of all the petitioners. It was wrong on the part of the opposite-parties to resist the compliance of the Court's Order solely on the ground that the High Power Committee did not find the petitioners as genuine workers as there was no such condition in the Court's Order. The contention that if subsequently, the Court would come to a conclusion that the petitioners' claim had no basis, the order would be vacated and the petitioners' claim rejected will have no bearing as the majesty of the Court has to be upheld by complying with the Court's Order and imaginary arguments can not be allowed to fall upon the dignity of this Court. Unless the order of 25-10-1999 is modified by the Court, the opposite-parties cannot brush aside the petitioners' entitlement to seek engagement in compliance of the Court's Order nor they could have entered into the exercise that such labourers were not genuine workers or that they did not work during the last three years. Such averments may be good defence version in the writ petition but not in the contempt proceedings.
16. Considering all what has been discussed above, I am of the decisive opinion that all the opposite parties, namely, Sri H.L. Prasad, Sri Asha Ram, Sri J.S. Gill and Sri B.K. Agarwal having committed a wilful disobedience of this Court's Order dated 25th Oct. 1999, are guilty of contempt of this Court. Accordingly, they are convicted under Section 12 of the Contempt of Courts Act and sentenced to undergo 30 days in civil prison and apart that, they shall also pay a fine of Rs. 2,000/- each. In default of payment of fine, they shall serve a week's additional civil prison-term.
