Gh. Mohammad Lone vs Abdul Rashid Dar

Syed Bashir-Ud-Din, J.—Application Gh. Mohd. Lone filed OWP No. 495/87 for pension as Legislature of the J. and K. Assembly. The

writ petition was disposed of on 16-10-1998 upholding the applicants claim for pension. The Court observed :-

The position in this case though not exactly similar, is some what similar. The fact remains that Ghulam Quadir Mir was unable to complete his

tenure and he was elected in a bye-election. The petitioner in this case was also elected in a bye-election. The circumstances under which this bye-

election was caused are different. But this difference would be totally irrelevant for the legal results. The bye-election did occur. The petitioner was

elected. To this extent there is similarity. Independently of the above Act has been amended. Any member who have completed two years

becomes eligible for pension.

Thus looking from any point of view this petition deserves to be allowed. This petition is accordingly allowed and the petitioner is held entitled to

the pension.

As follow up to the judgment applicant was granted pension from the date the amendment Act 13 of 1997 of J and K State Legislature Member

Pension Act of 1984 came into force. The applicant feeling that the judgment of the Court was not given full effect and the petitioner was not given

pension from due date has filed this contempt petition against the Chairman, J. and K. Legislature Council, Srinagar.

The statement of facts on behalf of the respondent has been filed in terms thereof it is alleged that the applicant was given benefit of the judgment

w.e.f. 2-6-1997 the date from which the amending Act 13 of 1997 came into force. This is so because prior to amendment Act of 1997, the

eligibility to get pension under J. and K. State Legislatures Members Pension Act, 1984 was five years minimum tenure as such member of the

Legislature and after 2-6-97 the period was reduced to two years to get the pension under the Act and Rules framed thereunder. Since applicant

writ petitioner had only two years tenure as Member of the Legislature, therefore, he was given pension w.e.f. 2-6-97, the date on which above

amendment Act came into force. In the judgment of the Court no date is specified for the applicant to earn pension. Petitioner has been awarded

pension both on the strength of judgment of the High Court in earlier writ petition of one Gh. Quadir Mir and above Amending Act 13 of 1997.

Respondents while interpreting the judgment understood to be conveyed that the applicant was entitled to pension on the basis of two years tenure

the period of his membership of Legislature. Therefore he earned the pension subject to other conditions only from 2-6-97. As judgment has been

Implemented in letter and spirit, the respondents have not commited contempt.

Counsel for the parties have advanced argument in line with, the above stand taken by the parties, while Mr. Qayoom submits that this Court

Judgment up-holds the writ petitioner's entitlement to pension from the date he became the Member of Legislature, the counsel for respondents

submits that the claim of the applicant to pension is granted by the judgment but not from the date he became Member of Legislature.

Applicant filed writ petition to claim the pensionary benefits as Member of the Legislature. The writ Court while taking note of J. and K. State

Legislature Members Pension Act of 1984, as amended by Act 13 of 1997 and the rules framed thereunder, found that the applicant is entitled to

pension and allowed the petition. The decision of the Court appears based on observations made in earlier judgment of Gh. Qadir Mir v. State of

J. and K. decided on 29-12-1986 and the said Amendment Act 13 of 1997. The Court noted that though two cases were not exactly similar but

however differences in the two cases in the matter of bye-elections wherein both were elected to the Legislature did not matter as far as the legal

consequences are concerned. Gh. Quadir Mir's Judgment though noted but applicant appears to have succeeded in the writ on the basis of

Amendment Act 13 of 1997 reducing the period of 5 years to two years as eligibility for pension. The respondent on the advise of Law

Department of the Government while interpreting the judgment has granted the pension as follow-up of the Judgment from the date of above

Amending Act came into force. Obviously it cannot be said that the judgment of the Court is wilfully or deliberately or contemptously disobeyed.

The judgment is capable of interpretation as placed on the judgment by the respondents. In such circumstances can the respondents be said to

have flouted the judgment and committed contempt.

In Ashok Kumar Singh and others Vs. State of Bihar and others, . The Apex Court observed Para 11:

From the material on record and after hearing learned counsel for the parties, we are not satisfied that it is a case in which it can conclusively be

said that the respondents have wilfully or deliberately or contemptuously flouted or disobeyed the orders of this Court dated 7-2-1991. It appears

to us to be a case of misinterpretation of the executive directions and order of this Court dated 7-2-1991 and is, therefore, not a fit case in which

contempt proceedings need to proceed any further. We, accordingly, drop the contempt proceedings and discharge the Rule Issued against the

respondents.

In Jiwani Kumari Parekh Vs. Satyabrata Chakravorty, Managing Director and Chief Executive of the West Bengal Handicraft Development

Corpn. Ltd., , the Apex Court held that unless wilful or deliberate, disobedience of the order of the Court is committed, the charge of contempt

cannot be brought home. Even bona fide misinterpretation of the Court judgment/order cannot attract contempt. A party can be held guilty in case

disobeydence of the judgment or order is wilfull or deliberate. See also Saraf Investigators v. Shri S.K. Dhar 1999 SLJ 170 J&K.

In Indian Airport Employees Union Vs. Ranjan Chatterjee and another, , the Court observed Para 11:-

In our view, these rival contentions involve an interpretation of the order of this Court, the notification and other relevant documents. We are not

deciding in this contempt case whether the interpretation put. forward by the respondents or the petitioners is correct. The question has to be

decided in appropriate proceedings. For the purpose of this contempt case, it is sufficient to say that the non-absorption of these six sweepers was

bona fide and was based on an interpretation of the above orders and notification etc. and cannot be said to amount to 'wilful disobedience' of the

orders of this tourt.

In result the contempt proceedings are drppped and rule issued against respondent is discharged. The applicant can pursue his remedy if

advised regarding the date from which he has to get the pension. Observations made hereunder are for purposes and targetted towards contempt

as put-forth here before the Court. Matter closed. Disposed of accordingly.