RAVI S. DHAVAN, J. ( 1 ) THIS order or judgment would not be complete and is only an appendix to the order of the Court dated 26/05/1990, which was a repercussion to the framing of the charges against the parties arrayed, but the record bears out that in unionism the parties who were under notice acquiesed, conceded and requested the Court that no charges be framed as they understood the order. As this submission was made on behalf of the contemners when they themselves pleaded that they were clearly conscious of the issues before the Court, the matter proceeded into hearing. ( 2 ) THIS case has been pending since very long. It ought to have been concluded earlier, but it did not as the Court in between sat in other jurisdiction, thus, the matter had to be taken up only on the days when the Court could convene specially when the Court was shown on Board with the case. ( 3 ) AN aspect of the record which needs to be noticed is that, compatible with the array of parties in the writ petition in which the order of 7/04/1989 was passed, the breach of which was alleged by the petitioner, Union of India was arrayed as a party respondent to these contempt proceedings and this aspect became an aspect without any issue between the parties. It was understood by all parties present that the record could not be alienated from the proceedings out of which these contempt proceedings arose. Truly, but for a defect of the manner in which civil contempt jurisdiction is structured, these proceedings ought to be part of the proceedings in the writ petition which saw the order of 7/04/1989. However, a civil contempt case at the Allahabad High Court is tried beyond the record of the case itself. An aspect of breach of any order or judgment is judged away from the record. In the circumstances, in so far as this case is concerned, as this is not the Court which delivered the order of 7/04/1989, the breach of which is alleged, the matter would have to be judged strictly within the parameters of the order which occasioned the contempt proceeding. In the circumstances, in so far as this case is concerned, as this is not the Court which delivered the order of 7/04/1989, the breach of which is alleged, the matter would have to be judged strictly within the parameters of the order which occasioned the contempt proceeding. Simplicitor, the order of 7/04/1989 notices the aspect that in the past statutory complaints which may have been made by the petitioner, at that time a serving officer with the army in the rank of a Lieutenant Colonel, were disposed of cryptically. The Division Bench which passed the order cautioned the Union of India and the army establishment that this time the complaint of the petitioner must not be disposed of, but the consideration of it must see objectivity and reasons on record on whatever may be the decision. The second aspect was that the representation of the petitioner must see result within thirty days. ( 4 ) THE facts are already noticed in the order of 26/05/1990. Thus, the Court is not repeating the facts again. The only change which has happened is that after the opposite party Nos. 2 and 3, namely, the Defence Secretary, Mr. Naresh Chandra, IAS and the Sub Area Commander, Brigadier P. K. Gupta, had already placed their defence on record, after the order of 26/05/1990, another affidavit, a supplementary defence was filed. ( 5 ) THE issues before the Court as the matter went into hearing then became one of the degree of contempt, which may have been occasioned by (1) the Union of India, (2) the then Secretary, Defence, Government of India, Mr. Naresh Chandra, IAS, and (3) Brigadier P. K. Gupta, the then Sub Area Commander, Allahabad. The part played by the three on the issues which are before the Court in this civil contempt action is as below. (1) The obligation of the Union of India to ensure that the order of the High Court of 7/04/1989 was complied with, (2) The personal responsibility of Mr. Naresh Chandra, IAS as Secretary, Defence and (3) The answerability of Brigadier P. K. Gupta, as head of the formation to set the process in motion to give effect to the order of the High Court dated 7/04/1989. ( 6 ) THE Court will take up the cases of the opposite parties one by one. Naresh Chandra, IAS as Secretary, Defence and (3) The answerability of Brigadier P. K. Gupta, as head of the formation to set the process in motion to give effect to the order of the High Court dated 7/04/1989. ( 6 ) THE Court will take up the cases of the opposite parties one by one. Before that all that needs to be kept in mind is that the petitioner being at the relevant time a serving army officer filed a writ petition complaining that the procedure which prescribes for redressal of grievances is not being adhered to and despite orders of the Court on his writ petitions an more than one occasion his representations are being disposed of without application of the mind with one phrase or one word orders like disposed of or rejected. In the circumstances, the petitioner in yet a subsequent Writ Petition No. 8545 of 1989 received an order of 7/04/1989, already referred to. This time, the High Court reminded the respondents that the complaint of the petitioner must be considered with objectivity and reasons must be recorded on the result of the petitioners representation. Secondly, the representation ought to see result within thirty days. The reason, the High Court had indicated time and the manner of its decision is that the petitioner was to retire on 30/06/1989 and in the circumstances, whatever may be the decision on the petitioners representation before the Central Government the result ought to be handed down to the petitioner before his retirement so that he knows where he stands in service and whatever be his complaint in service. ( 7 ) ON the face of it the record as it stands, again the Central Government repeated the formula orders. As far as the petitioner is concerned it was conveyed to him in formality but by a formula communication that his representation was rejected. This is the order dated 3/08/1989, otherwise not contained in the contempt petition for the simple reason that it was filed in May 1990, when the matter was taken up for hearing. The order on the result of the petitioners representation on whatever stage it lay was filed during the pendency of the contempt petition and, thus, is contained as an annexure to the counter affidavit of opposite party No. 2, Mr. Naresh Chandra, IAS Defence Secretary. The order on the result of the petitioners representation on whatever stage it lay was filed during the pendency of the contempt petition and, thus, is contained as an annexure to the counter affidavit of opposite party No. 2, Mr. Naresh Chandra, IAS Defence Secretary. The result on the petitioners representation as conveyed to him by the Government of India, Ministry of Defence, letter dated 3/08/1989, is already referred to in the Courts earlier order dated 26/05/1990 and, thus, are not being repeated here. ( 8 ) IT was already indicated by the Court in its order of 26 May, 1990, while ple posting the matter far the framing of charges that in the net result the ultimate order of the Central Government shorn of its recitals in preliminaries, simply declared that the Central Government rejects the complaint. The Court had mentioned in its order as a prelude to framing of the charges that if the directions of the Court, that is, of the Division Bench in its order of 7/04/1989 were kept side by side, as a negative and positive, for the purposes of examining how much of the orders had been followed for the purpose of compliance of directions, the result is clear to the naked eye. The objectivity which is now attempted to be explained should have been incorporated in the order of the Central Government dated 3/08/1989. It was conspicuous by its absence in this order of the Central Government, but saw explanation beyond the order coming out in the defence of the respondents in answer to the contempt petition. ( 9 ) HERE again confusion was presented when on the one hand the Secretary to the Government of India, concerned, under notice for contempt, desired to present his defence to explain the contempt part of it, his successor on the post of Defence Secretary was claiming privilege on the Transaction of Business Rules, of the Government of India to say that as Secretary, Ministry of Defence, he does not give permission to anyone to produce the said documents or to give any evidence derived there from, as the document, the Transaction of Business Rules, is privileged under Section 123 of the Indian Evidence Act, 1872. ( 10 ) THE position before the Court lay, thus : One Secretary to the Government of India desired to explain the manner in which the statutory complaint of the petitioner was received and considered by the Central Government in pursuance of the directions and the mandamus issued by a Division Bench of the High Court, dated 7/04/1989. But no sooner he had left his office another Secretary, his successor, was precluding the Court from examining the record on the ground that of the business which was allocated to those who are enjoined to discharge it, the act of allocation itself was privileged and the Court may not examine it. The Transaction of Business Rules and the allocation of business are framed under the Constitution of India and in fact are the two pillars upon which rest the bull work of the Government. One deals with the business of the Government as will be dealt with by the functionaries, that is, the bureaucracy. The other deals with the allocation of business of the Government between the ministers. These are published documents. In fact, it is the product of legislation which only guides the Government to act within the parameters of the business. So allocated or to be transacted. The whole purpose is that the Government should be seen to be running on set principles and according to rules. No different than rules as are framed as an appendage to a legislation so that the measure of functioning is standardised. Finding that the contradiction of claiming privilege on the Transaction of Business Rules was a logic which was not fitting into the defence of either the Government of India or the Secretary to the Government of India, both under notice, the Government of India and the respondents arrayed to the writ petition had virtually put a lock on their defence and frustrated their submissions in defence. The anomlous position of the record now lay in a position that while a Secretary to the Government of India desired to offer his defence it was being contended on behalf of the Union of India that the responsibility so entrusted on whoever it may be for the purpose of acting on the orders of the Court, it may not be examined. As parties had to appear and the respondents themselves had put a lock on their defence by claiming privilege, there was a change in counsel for the Union of India and the Secretary, Defence, who was under notice, to appear on a date. ( 11 ) NOW, Mr. S. S. Bhatnagar, Senior Advocate, appeared on behalf of the opposite party No. 1 (as it was No. 2), that is, Mr. Naresh Chandra, Secretary, Ministry of Defence, assisted by Mr. Umesh Narain Sharma. Mr. S. S. Bhatnagar, Senior Advocate, appeared for this party on 14/09/1992, 20 September 1992 and 20/10/1992. Thereafter, Mr. S. S. Bhatnagar, Senior Advocate, did not appear as he indicated to the Court that, regard being had to the circumstances that he has become the Advocate General, he did not consider it appropriate nor felt comfortable to submit on this case. ( 12 ) IN this regard two orders of the Court will explain that an unusual controversy was brought on record by the Union of India itself. These are orders dated 14/09/1992 and 20/10/1992, which are reproduced below :"14-9-92 Honble Ravi S. Dhavan Present : 1 Lt. Colonel Ashok Kumar (Retd) petitioner in person. 2. Messrs. S. S. Bhatnagar, Senior Advocate, and U. N. Sharma on behalf of opposite party No. 1, Mr. Naresh Chandra, 3. Mr. N. C. Rajvanshi, on behalf of opposite party No. 2, Brigadier P. K. Gupta (Retd ). 4. Mr. Vipin Sinha, Additional Standing Counsel, Government of India. While proceeding with the hearing and coming across orders dated 29/08/198 1/10/1991, Octob 11/10/1991 and Oc 22/10/1991 and regard being had to the circumstances that the case had been adjourned for producing certain documents and on these, subsequently, privilege was claimed. Mr. S. S. Bhatnagar, Senior Advocate, for opposite party No. 1, Mr. Naresh Chandra, submitted that after having seen the aforesaid orders it is imperative and necessary for him as counsel to seek an adjournment. Learned counsel has also seen the two affidavits which have been filed on the record, one filed on 11/10/1991 of B. P. Joshi, Deputy Secretary (A. G) Ministry of Defence, Government of India, New Delhi, and the other filed on 22/10/1991 of N. N. Vohra, Secretary, Ministry of Defence, Government of India, New Delhi. Learned counsel has also seen the two affidavits which have been filed on the record, one filed on 11/10/1991 of B. P. Joshi, Deputy Secretary (A. G) Ministry of Defence, Government of India, New Delhi, and the other filed on 22/10/1991 of N. N. Vohra, Secretary, Ministry of Defence, Government of India, New Delhi. By these affidavits, privilege has been claimed on the Transaction of Business Rules, 1961, in effect, preventing the Court from examining the defence of the opposite party No. 1 that he may or may not be the official designated for occasioning the order which raises the issue of contempt. The opposite party No. 1, at the relevant time Secretary, Ministry of Defence, Government of India, had his defence locked by his successor in office also Secretary, Ministry of Defence, by formally submitting on an affidavit that the matter of delegation of the manner in which the executive action was discharged is privileged. The opposite party No. 1, Mr. Naresh Chandra, the then Defence Secretary, bases his reply or defence on certain records, to submit that he may not be the authority who may have done the wrong. But a succeeding Secretary, Ministry of Defence, Government of India, Mr. N. N. Vohra, IAS in effect, submits that neither the source of delegation, nor the content, can be seen. In his affidavit he states that the document is an unpublished official record relating to the affairs of the State. He further states that he is bona fide satisfied that its disclosure would cause injury to public interest and that public interests would suffer thereby. While expressing reservations on the disclosures, the Secretary, Ministry of Defence, continues to submit that he does not give permission to anyone to produce the said documents or to give evidence derived therefrom and he claims privilege under Section 123 of the Evidence Act, 1872. The document is the Transaction of business Rules, 1961 and anything said or done in pursuance of it. The entire defence of the opposite party No. 1 Mr. Naresh Chandra, is on the aspect of the responsibility of a Secretary to the Government or on strict proof liability. On the affidavit of the opposite party No. 1, Mr. Naresh Chandra, filed today, it is clear that on his behalf the submissions will be on the source of delegation and the order passed upon delegation. Naresh Chandra, is on the aspect of the responsibility of a Secretary to the Government or on strict proof liability. On the affidavit of the opposite party No. 1, Mr. Naresh Chandra, filed today, it is clear that on his behalf the submissions will be on the source of delegation and the order passed upon delegation. Another Secretary, Ministry of Defence, also submits that the sanction which permits delegation on the delegation itself can neither be shown nor seen. Between the two secretaries of the same Ministry, a lock has been put to prevent the Court to consider, the defence of opposite party No. 1, Mr. Naresh Chandra. The key is between them and the Government of India. It is on this, that Mr. S. S. Bhatnagar, Senior Advocate, also, Mr. Umesh Narain Sharma, otherwise Senior Standing Counsel, Central Government, apply for an adjournment to set the record right and pray to the Court to permit them to do so. Regard being had to the circumstances already on record when one Secretary to the Government of India desires to disclose from the records his defence in a contempt case, a subsequent Secretary of the same Ministry, submits formally on an affidavit that he does not desire the disclosure. One thing is clear as far as the Court is concerned that until the Government of India, which may set the record straight, Union of India, which had hitherto been deleted as a party respondent, on 9/02/1990, when the affidavits of the two Secretaries, Ministry of Defence, were not on record shall revert to be included as an opposite party through the Secretary, Ministry of Defence, Government of India. Adjournment sought is, thus, permitted. As desired by learned counsel for the parties, list for hearing on 19/10/1992. "20-10-1992 Honble Ravi S. Dhavan, J. Present :1. Lt. Colonel Ashok Kumar (Retd) 2. Messrs. S. S. Bhatnagar, Senior Advocate, and Mr. U. N. Sharma, on behalf of the opposite party No. 1, Mr. Naresh Chandra, 3. Mr. N. C. Rajvanshi on behalf of opposite party No. 2. An application has been moved by Mr. Umesh Narain Sharma, Senior Standing Counsel, Government of India, seeking adjournment of the matter. In effect, the Government is seeking permission of the State for withdrawing a certain affidavit filed by a Secretary to a Ministry contradicting a previously filed affidavit by his predecessor in the same Ministry. An application has been moved by Mr. Umesh Narain Sharma, Senior Standing Counsel, Government of India, seeking adjournment of the matter. In effect, the Government is seeking permission of the State for withdrawing a certain affidavit filed by a Secretary to a Ministry contradicting a previously filed affidavit by his predecessor in the same Ministry. This is in reference to the order dated 14/09/1992, noticing the state of the proceedings. The adjournment sought on that day may not have achieved the purpose, further adjournment is, thus, prayed. The application filed today did not mention on whose behalf it was and permission to bring on record the applicant was permitted by the Court. But, the application must be supported by an affidavit by a responsible officer of the Ministry concerned on what it avers, except paragraph 5 which counsel says is his statement. Thus, list this matter for orders on 19/11/1992 for fixing of a date. As the matter is being fixed for orders, the opposite parties need not be present on that day as a day of hearing would oblige them to, unless exempted. A supplementary rejoinder affidavit by the petitioner be brought on record. List on 19/11/1991. " ( 13 ) AFTER this order two affidavits of the subsequent Defence Secretary were filed. One on 22/10/1991 and the other on 25/11/1991. The contents of both are reproduced. The affidavit filed on 22/10/1991. "affidavit In the High Court of Judicature at Allahabad Contempt Case No. 455 of 1989 Lt. Col. Ashok Kumar Shri Naresh Chandra and another, Opposite Parties Affidavit of N. N. Vohra, aged about 57 years, Secretary, Ministry of Defence, Govt. of India, New Delhi, Deponent. I, N. N. Vohra, Secretary to the Government of India, Ministry of Defence, do hereby solemnly affirm and state as follows : 1. The Honble Court has desired the Ministry of Defence to produce Government of India (Transaction of Business) Rules, 1961 in Contempt Case No. 455 of 1989, Lt. Col. Ashok Kumar v. Shri Naresh Chandra on the date of the next hearing i. e. on 22-10-1991. 2. I, as the Defence Secretary, am the Head of the Department and I am, as such, in control of and in charge of its records. 3. Col. Ashok Kumar v. Shri Naresh Chandra on the date of the next hearing i. e. on 22-10-1991. 2. I, as the Defence Secretary, am the Head of the Department and I am, as such, in control of and in charge of its records. 3. I have carefully read and considered the said document and have come to the conclusion that the document is an unpublished official record relating to the affairs of the State. 4. I have carefully examined the question as to whether the disclosure of the document would cause injury to public interest and am bona fide satisfied that its disclosure would cause injury to public interest and that public interests would suffer thereby. 5. However, I hasten to point out that I have no objection whatsoever to this document, in regard to which privilege has been claimed, being produced for perusal of this Honble Court for satisfying itself about the bona fides and genuineness of the plea of the privilege. 6. I realise the solemnity and significance attached to the exercise of power under Section 123 of the Indian Evidence Act, 1872, and privilege is not being claimed on the ground of expediency or to avoid an embarrassing or inconvenient situation or because it is apprehended that the document, if produced, would defeat the case of the state. 7. I do not, therefore, give permission to anyone to produce the said document or to give any evidence derived therefrom and claim privilege under Section 123 of the Indian Evidence Act, 1872. I, N. N. Vohra, do hereby solemnly affirm and say that what is stated herein above is true to my knowledge. Solemnly affirmed at New Delhi this 19th day of October, 1991. Sd/- (N. N. Vohra) Secretary, Ministry of Defence"the affidavit filed on 25/11/1991 :"affidavit In the High Court of Judicature at Allahabad Contempt Case No. 455 of 1989 Lt. Col Ashok Kumar (Retd) Shri Naresh Chandra and others, Opposite Parties. Affidavit of N. N. Vohra, aged about 57 years, Secretary, Ministry of Defence, Govt. of India, New Delhi, Deponent. I, N. N. Vohra, do hereby solemnly affirm and state as follows : 1. That the deponent is presently serving as Secretary, Ministry of Defence, Government of India New Delhi. 2. That the said petition is being heard by the Honble Court. of India, New Delhi, Deponent. I, N. N. Vohra, do hereby solemnly affirm and state as follows : 1. That the deponent is presently serving as Secretary, Ministry of Defence, Government of India New Delhi. 2. That the said petition is being heard by the Honble Court. Kind attention is invited to the Counter Affidavit dated 6-3-90 and Supplementary Counter Affidavit dated 5-7-90 and 29-7-90 filed by opposite party No. 1, Shri Naresh Chandra, former Defence Secretary. 3. That the opposite party No. 1 had drawn the attention of Honble Court to the Government of India (Transaction of Business) Rules, 1961. In particular, it was stated that "the Government of India (Transaction of Business) Rules, dated 14/01/1961, framed under Article 77 (3) of the Constitution, provided in Rule 3 about disposal of business by Ministries. Rule 3 of the Government of India (Transaction of Business) Rules reads as under :"disposal of Business by Ministries :- Subject to the provisions of these Rules in regard to consultation with other departments and submission of cases to the Prime Minister, the Cabinet, and its Committees and the President, all business allotted to a department under the Government of India (Allocation of Business) Rules, 1961, shall be disposed of by, or under the general or special directions of, the Minister-in-Charge. That vide order No. 48 dated 29-6-1988 it has been provided in Instruction No. II (xii) that cases of statutory complaints by defence service officers upto the rank of Brigadier or equivalent shall be decided by Raksha Rajya Mantri. " 4. That on 14-9-91 the deponent had filed an affidavit before the Honble Court inter alia stating that the Govt. of India (Transaction of Business) Rules, 1961 are an unpublished document relating to the affairs of the State. 5. That in the light of the observations of Honble Court dated 14-9-92 the deponent confirms that the rule 3 quoted by the opposite party No. 1 is a correct reproduction of Rule 3 of the Govt. of India (Transaction of Business) Rules, 1961. 6. That it is further affirmed that the office order No. 48 dated 29-6-88 was issued under the directions of the then Raksha Mantri. 7. That it is humbly prayed that this affidavit be taken on record. of India (Transaction of Business) Rules, 1961. 6. That it is further affirmed that the office order No. 48 dated 29-6-88 was issued under the directions of the then Raksha Mantri. 7. That it is humbly prayed that this affidavit be taken on record. Sd/- Deponent VERIFICATION I, N. N. Vohra, do hereby swear and declare that the contents of paras 1 to 6 are based on information derived from official record and I believe them to be true. Nothing material has been concealed and no part of this is false. Solemnly affirmed at New Delhi on this the 18th day of November 1992. Sd/- Deponentthe subsequent affidavit of the succeeding Defence Secretary does not aid the Court in arriving at any conclusion on how much of the defence should be taken into account or ignored because one Secretary desired to present it, the other prevents the consideration of it. This effort to claim privilege so as to prevent the Court to look into the record, an obligation on the Court to give an assessment on how the mandamus may have been complied with, was a shabby attempt to keep away from the Court the Transaction of Business Rules of the Government which, otherwise, happens to be a published legislation under the Constitution and is hardly a matter for secrecy. The Constitution expects that there be transparency in the functioning of the Government. Of any confidentiality which was supposed to be there in the allocation or the transaction of business of the Government under the Constitution, the Court was being told that the defence in detail and threadbare will neither be given nor can be looked into. The defence was, the Union of India submitted to the Court, that the defence cannot be sought nor examined. The delegation of the administration on the transaction of business of the Government of India cannot be required to be produced of Article 77 of the Constitution of India, on the basis of clause (4 ). When the Court indicated that the academics in defence has dated, previous counsel for opposite party No. 1 and the Union of India took the matter lightly. ( 14 ) WHY was this academic argument out of date ? There was a clause (4) to Article 77 of the Constitution of India. When the Court indicated that the academics in defence has dated, previous counsel for opposite party No. 1 and the Union of India took the matter lightly. ( 14 ) WHY was this academic argument out of date ? There was a clause (4) to Article 77 of the Constitution of India. It read -" (4) No Court or other authority shall be entitled to require the production of any rules made under clause (3) for the more convenient transaction of the business of the Government of India. "if this clause was there at the time when the Union of India took its defence, the academic argument would have held. But, this clause (4) to Article 77 of the Constitution was omitted by the Constitution (Forty-forth Amendment) Act, 1978, Section 12 with effect from 20/06/1979. What the concerned Secretaries of the Government of India did not check up in depth was that clause (4) of Article 77 was a product of Emergency, which went with it. This was not a matter for privilege and the manner in which it was attempted to be claimed only shows that the Government was not confident in claiming it and when it did, it was misplaced. ( 15 ) PRIVILEGES or no privileges, the reception to the orders of 7/04/1989, issued as a rule of mandamus to the respondents which became the subject matter of issue of notice on contempt petition met with the same fate and the earlier orders of the Bench in which the Union of India had been cautioned by the Division Bench in that very order which gave rise to the contempt proceedings, that is, 7/04/1989. The Division Bench had directed objectivity in decision making. ( 16 ) ULTIMATELY when it came down to the hearing of the matter, counsel for opposite party No. 1, Mr. Umesh Narain Sharma (mentioned as such, as Mr. S. S. Bhatnagar, Senior Advocate, was not appearing upon his position as Advocate General), submitted that along with the defence of opposite party No. 1, the exact facimile of the files of the Defence Ministry have been placed on record so that the Court may see for itself what went into the decision making on the representation of the petitioner and that the Central Government has applied its mind in disposing of the representation of the petitioner. The issue is not whether the Court ought to look into the files of the Government, but plainly whether the record of the files as is being shown to the Court was simultaneously given out to the petitioner whose statutory representation was under consideration. ( 17 ) ON the one hand the Government claims secrecy in its working by claiming privilege and by the other it would like to side step and step over the shoulder of a citizen and show to the Court, what the person concerned, could not see. Can the Court see these files for consideration of the process of decision making ? This answer, apparently, has been provided by the Supreme Court in the matter of State of Bihar v. Kripalu Shankar, AIR 1987 SC 1554. What the Court has to examine is the ultimate position in the making of a decision, the process is not to be looked into as in the working of the government the functionaries may be agreeing or disagreeing for the ultimate responsibility, to take whatever may be the decision. The objectivity in the decision is for the person who is affected by it. What remains in the formality of the defence of the respondents is the order which was occasioned, dated 3/08/1989, which has already been reproduced by the Court in its order of 26/05/1990. The net result is that the statutory complaint of the petitioner was rejected without reasons on record of the order itself. But, in the formality of the order, the objectivity which it was meant to contain, as required and directed by the High Court in its order of 7/04/1989, was truly absent. ( 18 ) THE next aspect is the time factor. ( 19 ) THE Division Bench indicated that the statutory complaint of the petitioner be considered and see finality with reasons recorded in the manner in which it was indicated and the process and the decision completed within thirty days. Under the law, that is, the Manual of Military Law, the statutory complaint has to be first filed, as a measure of formality, with the formation concerned. The petitioner was assigned or attached, at the relevant time, the formation of the Sub Area Allahabad with the Sub Area Commander as its head. The statutory petition or complaint was left and filed with the formation, Sub Area Allahabad, on 12/04/1989. The petitioner was assigned or attached, at the relevant time, the formation of the Sub Area Allahabad with the Sub Area Commander as its head. The statutory petition or complaint was left and filed with the formation, Sub Area Allahabad, on 12/04/1989. It remained in Allahabad until 26/04/1989. The explanation to explain away the delay for retaining it at Allahabad is not different than what has already been noticed inthe order of 26/05/1990 and, thus, this aspect is not being repeated here. Suffice it to say that on record nothing was indicated to the petitioner in which manner the new format of receiving the complaint was any different than the earlier format. This, then, left the only aspect of the matter that there was a statutory complaint which had to be dealt with within the time indicated by the High Court and recording the reasons for the decision. These were broadly the directions in the order of the Division Bench dated 7/04/1989. Of the incompleteness and the lack of objectivity in the decision on the statutory complaint, it is on record that all the papers were available in the formation and the complaint in its complete form with copies available and extracted from the office of the formation itself, that is, the Sub Area Allahabad were transmitted to the Central Government via Jabalpur which is the Head Quarter for Sub Area Allahabad and, thereafter, to Lucknow which happens to be the Central Command and then to the Central Government, the Ministry of Defence for such decision, whatever it may be, as the High Court had directed. ( 20 ) THE time prescribed by the Division Bench was thirty days. The statutory complaint left Allahabad, that is, moved from the Sub Area Allahabad on 26/04/1989. These are matters of record. It was contended that two days of this period may not be taken into account. The Court is prepared to accept the contention of the opposite party Brigadier P. K. Gupta (Retd.) that two days may not be taken into account, that is, the date of filing and the date of its despatch out of Allahabad. The Court is prepared to accept this submission as it is plausible. But, even if these two days are taken out, it only shows that the complaint continued to linger in Allahabad far fourteen days instead of sixteen days. The Court is prepared to accept this submission as it is plausible. But, even if these two days are taken out, it only shows that the complaint continued to linger in Allahabad far fourteen days instead of sixteen days. Half the period given by the High Court, thus, was absorbed when it remained in Allahabad. This left the Central Government with only fifteen days to look into it. The date of the complaint leaving Allahabad is important. It is 26/04/1989. This is the date when the Sub Area Commander himself is transferred out as Sub Area Commander, Meerut, and on the day of his transfer the papers were forwarded out of the formation. The inevitable logic in military terms cannot be ignored. Regulation 361 of the Defence Service Regulation mentions in no specific terms that on no account a complaint at a grievance petition of a military personnel must be retained beyond ten days. Assuming that the order of the Allahabad High Court was not there, then the discipline of the military required that this complaint, within ten days of its being filed, should have been out of the formation. The complaint was filed on 12/04/1989. It should have left Allahabad to the place where it was intended within ten days, that is, on or before 22/04/1989. The regimentation of the military does not know any other logic except the plain spoken command which must be carried out as simply as it is said. At present, for the time being ignoring the order of the Allahabad High Court no reasonable or plausible explanation has been forthcoming why the complaint was kept by the Sub Area Commander, Brigadier P. K. Gupta, beyond ten days, against Regulation 361. This was also contributing to the violation of the mandamus issued by the Division Bench as the total time available to finish the process of deciding the representation, most of it was being eaten up at the formation of Sub Area, Allahabad. But the question does arise was Regulation 361 violated ? The Court is dealing with this aspect of the matter because it is on record that the petitioner was about to retire on 30/06/1989 and in fact it is for this reason that thirty days time was set for the purposes of a decision on the statutory complaint. But the question does arise was Regulation 361 violated ? The Court is dealing with this aspect of the matter because it is on record that the petitioner was about to retire on 30/06/1989 and in fact it is for this reason that thirty days time was set for the purposes of a decision on the statutory complaint. The whole purpose was that should the complaint be against the petitioner, then, he could take recourse to whatever remedy he had under the Manual of Military Law. The petitioner retired on 30/06/1989. An aspect on record, contended during the course of arguments, is that the petitioner was subjected to Court Martial proceedings after he had retired. This is borne by the record from the order for the assembly of a General Court Martial under the Army Act, 1950. The communique has been issued by the Central Officer Commanding, Madhya Pradesh, Bihar and Orissa. The place is Jabalpur. The date of the order is 5/09/1989. 2 2. Supplementary Rejoinder Affidavit filed on 20/10/1992 by the petitioner affirmed on 17/10/1992, Annexure-D. ( 21 ) THE subject matter of the arraignment of charges was violation of Section 39 (b) of the Army Act, 1950. Specified in general terms, to Annexure-D. face the charge for overstaying leave granted with effect from 21/05/1989 to 31 May 1989, without out sufficient cause. The Court is not examining this issue of leave whether the Court Martial proceeding had been validly or, invalidly convened. But, it is on record that this aspect of leave has a direct nexus with cases which were pending at the Allahabad High Court and the Supreme Court and the Court had recommended sanctioning reasonable leave so that the petitioner could attend Court proceedings. Beyond this, this Court wilt not make any comment. But the aspect which needs to be reflected upon is that if the petitioner may have overstayed leave and not joined his reporting station and could face Court Martial proceedings even after retirement, then another aspect does need a little more serious reflection. 26/04/1989 is the date of despatch of the statutory representation of the petitioner on its way out to the Central Government. Co-incidently, 26/04/1989 is also the date of the transfer of the Sub Area Commander, Brigadier P. K. Gupta, from Allalhabad to Meerut. The complaint was retained in the formation beyond ten days as prescribed in Regulation 361. 26/04/1989 is the date of despatch of the statutory representation of the petitioner on its way out to the Central Government. Co-incidently, 26/04/1989 is also the date of the transfer of the Sub Area Commander, Brigadier P. K. Gupta, from Allalhabad to Meerut. The complaint was retained in the formation beyond ten days as prescribed in Regulation 361. No Explanation is forthcoming to explain this delay. While this delay may not have to be explained to the High Court, but to the military authorities it has. The fact of the matter is that Regulation 361 was violated. Nothing has been shown on behalf of either parties taking their defence, Union of India not excluded, on what action was taken by the authorities against those who detained this statutory complaint in violation of Regulation 361 to detain it within formation for a period beyond ten days. Was any action under Military Law contemplated against those directly connected with the delay or, fo r that matter, indirectly connected with it. If regimentation is the accountability under military law and the authorities, the respondents, were obliged to try an officer after retirement by a General Court Martial, on the other hand those who detained the statutory complaint beyond ten days and violated Regulation 361 were also to be questioned on the same standards like the petitioner had been ? The issue here is not on the content of the complaint or the merits of the complaint, but strictly of retaining it beyond the time stipulated in Regulation 361. The standards of judging the officers for misdemeanours, in context, do not appear to be the same. ( 22 ) OF the fourteen days which were cut off while the statutory complaint lay in Allahabad, it left the Central Government with barely sixteen days to devote its attention to this complaint objectively to look into the matter. It is understood while the complaint was on its way to reach the Central Government Secretariat at New Delhi for processing and for consideration, it left the Central Government with less than half a month to act on it. ( 23 ) IF the Court were to take stock of the situation and the circumstances, on the compliance of the order of the Division Bench, dated 7/04/1989, then, two aspects need to be considered very seriously. First is on the functioning of the Government at all levels. ( 23 ) IF the Court were to take stock of the situation and the circumstances, on the compliance of the order of the Division Bench, dated 7/04/1989, then, two aspects need to be considered very seriously. First is on the functioning of the Government at all levels. Second where exactly the contempt action needs to be considered, Civil contempt, i. e. , to say along with the record or away from the record. These two matters are very important, as they do affect the Court in taking any strict approach in the overall circumstances and if this matter constitutionally ought to be considered before the Court where the record lay it is possible the result would also be different. All parties as respondents, on record in the writ petition were put under summons and notices all over again. An unnecessary duplication and time consuming process. Judging civil contempt by a Court which is not the Court with record recording the order whose breach is complained of, shows a defect in this jurisdiction. Nevertheless, today, as this Court is constituted to judge the situation by the Rules of Court it is, thus, doing so. ( 24 ) FOR the purposes of this case, the order of the Division Bench says that the complaint of the petitioner shall be objectively dealt with within thirty days. It is a statutory complaint of an army officer. It is dealt with under Regulation 361 of the Defence Services Regulation read with Section 27 of the Army Act, 1950. The subject Complaints, petitioners and Appeals is a separate chapter the index of which is C. S. No. 232/x/78. The onward transmission of a complaint is dealt with under sub-clause 11 of Regulation 361. This regulation provides :"11. All complaints will be dealt with expeditiously at all levels. A statutory complaint must reach an authority at Army Headquarters not later than 60 days from the date of its submission by the complainant. No intermediate authority will hold up this complaint for more than ten days. . . . . "ought the respondents have had more time than was directed by the Division Bench ? This aspect, this Court cannot answer as it would be improper and in appropriate the directions are of the Division Bench, notwithstanding the regulations which provide sixty days to decide such a complaint. . . . . "ought the respondents have had more time than was directed by the Division Bench ? This aspect, this Court cannot answer as it would be improper and in appropriate the directions are of the Division Bench, notwithstanding the regulations which provide sixty days to decide such a complaint. This is not a matter which was argued by the respondents. But, it is an inquiry of the Court itself. This Court is of the opinion that only the Court which has passed the order can Judge the issue of the time given by the Court to the Central Government to decide the statutory complaint and the further period provided in the Defence Service Regulation. In so far as this Court is concerned an order is an order. The Division Bench desired that it would be done within thirty days. The situation will, thus, be judged that it ought to have been done within thirty days. It is accepted on record without issues that it was not done within thirty days. In this regard counsel for Union of India did express at least this much that an argument which Could be made if the contempt was to be before the Court which had passed the order would be addressed differently, but cannot be made before this Court. This academic question, for the time being, will be left out. ( 25 ) ON the functioning of the Government, and for this matter before the Court, the same sub-clause 11 of Regulation 361 which permits statutory complaints to reach the army headquarter not later than sixty days, also, stipulates that "no intermediate authority will hold up the complaint for more than ten days". Some authority did hold up the complaint at the place of its submission beyond ten days. Which was this authority ? The record answers and the circumstances are accepted that the complaint lay in the formation of the Sub Area Commander, Allahabad, for more than ten days. Two situations happened more than reasonable time was taken to hold up the complaint at the formation of the Sub Area Commander and, secondly, military discipline was violated. In this aspect alone there are two circumstances. Firstly, if the same yardstick is to be used in military discipline for all formations and ranks, then, a General Court Martial proceeding between 11 to 16/09/1989 tried the petitioner. In this aspect alone there are two circumstances. Firstly, if the same yardstick is to be used in military discipline for all formations and ranks, then, a General Court Martial proceeding between 11 to 16/09/1989 tried the petitioner. This period is after his retirement. The petitioner was indicated to lose one year of past service, in so far as it represented pension. This was a punishment. The Court is not concerned with the merits of the General Court Martial proceeding, as this is a matter between the petitioner and the military authorities. It is conceded by the respondents that no action was taken against the authority which was incharge of the formation, that is, the Sub Area Commander, Allahabad, otherwise, opposite party No. 3, Brigadier P. K. Gupta, now retired. The complaint left the formation on the very day of his transfer out of Allahabad to Meerut. It gives the impression to the Court that but for the transfer order of moving out from Allahabad on 26/04/1989, the complaint would have lain at the formation even beyond the period it lay. There is, thus, accountability, on the military authorities to take note of the situation, as military discipline itself requires them to answer on what they did to the Officer Incharge, of the formation who violated sub-clause 11 of Regulation 361 as an intermediate authority to hold up a complaint for more than ten days. In so far as the order of the High Court is concerned; the complaint was held up at Allahabad for almost half a month, thus, curtailing the time of the Central Government. The situation was contemptuous to the Regulation which prevented the detention of the complaint for more than ten days. The situation was not exactly obedience of the order of the High Court to detain the complaint more than was necessary, instead of forwarding it forthwith. Thus, there was contempt both to the law of the military and disagreed to the order of the High Court. ( 26 ) FURTHER, by the time the complaint reached the Central Government, undoubtedly, according to the schedule set by the High Court, it left only half a month for the Central Government. Thus, there was contempt both to the law of the military and disagreed to the order of the High Court. ( 26 ) FURTHER, by the time the complaint reached the Central Government, undoubtedly, according to the schedule set by the High Court, it left only half a month for the Central Government. If more time was required, then, the Union of India ought to have reverted to the Court which passed the order to seek more time, instead more than two and a half months were taken to act on the complaint. This is one aspect of the matter. Then, when the complaint was acted upon, the caution which was a direction of the High Court not to dispose it off by a criptic order, but deal with it objectively, was definitely violated. This is not a matter of issue, but a matter of record. If the order of 3/08/1989 is put side by side along with the order of the High Court dated 7/04/1989, then the situation which remains is not exactly compatible with the order. ( 27 ) THE issue is not that the complaint was rejected, as this discretion was always with the Central Government to consider the complaint objectively and arrived at a result. The complaint could have been allowed or rejected, but the complaint was not processed within the time given by the Division Bench and the complaint was not dealt with objectively. No explanation is forthcoming. The submission is that the Court must see the files of the Defence Ministry. This, the Court will not. An objective order with reasons should have been there so that it could be seen by the person who is affected by it, no matter what result it was indicating. If the writ petition was not there and the statutory complaint was to be dealt with, then, the petitioner would not have been able to see the file of the Defence Ministry. Would it be appropriate for the Court to encourage this situation so that the Court should peep into the files of the Government when the person who is awaiting judgment on his representation cannot see it ? This would be a bad precedent. Disrespect was shown to the order of the Division Bench of the High Court (Honble S. K. Dhaon and Honble D. P. S. Chauhan, JJ. ). This would be a bad precedent. Disrespect was shown to the order of the Division Bench of the High Court (Honble S. K. Dhaon and Honble D. P. S. Chauhan, JJ. ). ( 28 ) THE Court is not going into the aspect of the academic submission taken by a subsequent Secretary, Defence, that the Raksha Rajya Mantri was responsible, when the opposite party No. 2, the Secretary, concerned, i. e. , Mr. Naresh Chandra, IAS, has already submitted on affidavit that he has dealt with the matter. Beyond this contradiction, a plea cannot be permitted on who, otherwise, was dealing with the matter. The Court has already held in its order of 26/05/1989, in the context of the present matter, the, Minister is answerable to the Parliament. In judicial review, bureaucracy is answerable to the Court. The Central Government is answerable to the Court. ( 29 ) REGARD being had to the overall circumstances, the Court sums up the proceedings, thus : Today, after the matter has been seen threadbare the Court still reiterates its observations as passed in the proceedings dated 26/04/1996. There is nothing for the Court, on the record, to come to the conclusion that the Secretary, concerned, deliberately went out of his way to violate an order of the Court. This aspect still holds according to the opinion of the Court. In this context, the Court is recalling its order recorded on 26/04/1996. It reads". . . it has been indicated to the petitioner that qua opposite party No. 2, Naresh Chandra, the then Defence Secretary, subject to any other aspect being brought from the record, the Court has not been able to come to any conclusion beyond reasonable doubt to formulate an opinion that he went out of way blatantly, maliciously or mala fide to arrange the delay of the representations of the petitioner which could not see a decision within the stipulated time, or for that matter brought harm to him. . . . . " ( 30 ) BUT, it is not that the situation is not contemptuous. . . . . " ( 30 ) BUT, it is not that the situation is not contemptuous. ( 31 ) A contemptuous situation was brewing and the Union of India did not give due regard to the order of the High Court dated 7/04/1989 so as to comply within the time bound schedule to process the statutory complaint and that also to process it in the manner indicated that whatever be the decision, it must be dealt with objectively by giving reasons. The complaint was not dealt with within thirty days, nor objectively, nor reasons were recorded in the formality of the order as was conveyed to the petitioner, being the order dated 3/08/1989. A Government can also be in contempt. Union of India, thus, did commit contempt. ( 32 ) THE opposite party No. 3, Brigadier P. K. Gupta (now retired), showed disrespect to the order of the High Court, dated 7/04/1989, as also, violated Regulation 361, sub-clause 11. The order of the High Court was shown disrespect as a complaint which was to be processed on the direction of the Division Bench was retained unreasonably without any plausible explanation. Military discipline was, also, violated as it was retained beyond the regimented stipulation of ten days as prescribed. The latter aspect is not the concern of the High Court, but the Court does reflect that if the petitioner could be proceeded after retirement, the military authorities are not absolved from the accountability in considering this aspect of retaining a complaint within formation beyond ten days when it should have moved out. ( 33 ) IN the net result the entire situation was a shabby situation. This is not a matter in which the High Court should consider an order for committing a contempt by committing any person to prison. But a contempt to the orders of the High Court is a matter of record and it cannot be ignored. ( 34 ) OF the contempt which has been occasioned in such a situation that a decision was not rendered within thirty days in accordance with the direction of the Division Bench nor a decision was given objectively with reasons to be recorded, the Union of India, the Ministry of Defence, is answerable and to this extent fined a sum of Rs. 1,000-00, which shall be paid by the Ministry of Defence and deposited with the Registrar, High Court, within the period, indicated subsequently, in this order. ( 35 ) BRIGADIER P. K. Gupta (retired) for withholding the complaint beyond reasonable time and consuming almost half the time, leaving the Central Government only half of it and having showed disrespect to the order of the High Court for holding the complaint beyond a reasonable time, showed disrespect to the order of the High Court, as also to the law which governed him, and for this the Court fines him a sum of Rs. 500-00, to be also deposited with the Registrar, High Court, Allahabad, within the period as indicated hereinafter. ( 36 ) THIS should be the end of the petition for contempt. The fine shall be paid by both the parties, i. e. , the Union of India, opposite party No. 1 as well as opposite party No. 3, Brigadier P. K. Gupta (retired), within six months from today failing which the Secretary, Ministry of Defence, Union of India who occasions the default and Brigadier P. K. Gupta (Retd.), aforesaid, as the case may be, will be answerable to the Court which passed the order, as it may be constituted. The Court is giving this time as neither is present before the Court, today, and to secure the presence of all of them, the Court has already observed is not feasible. One is on an assignment abroad, The other has retired, and is in Rajasthan. ( 37 ) THIS order shall otherwise remain in abeyance for a period of six months so that if either party desires to file an appeal against this order, it may. ( 38 ) THE complaint on contempt succeeds with costs in the light of the observations which have been made above. Petition allowed. .