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Gauhati High Court · body

1996 DIGILAW 260 (GAU)

Dinabandhu Majumdar v. Nirmalya Dutta

1996-12-09

N.G.DAS

body1996
This is an application made by the petitioner Shri Dinabandhu Majumdar for initiating proceeding for contempt against the respondents, namely, (1) Shri Nirmalya Dutta, Engineer-in-Chief, PWD, (2) Shri KL Das, Executive Engineer (Elec) and (3) Shri Sanjoy Choudhury, Sub Divisional Officer (Elec), Sonamura. 2. It is alleged that the petitioner who was transferred by an order viz order No.F 6 (41) - PWD (E)/88, dated Agartala, the 29th September, 1993 was stayed by this Court by its order dated 4.3.1994 passed in Civil Rule No.97 of 1994 which the petitioner filed challenging the validity and legality of the aforesaid order of transfer. It has been further stated that the aforesaid order of this Court dated 4.3.94 was submitted to the respondent No.3 on 5.3.1994 and he was again requested to allow the petitioner to resume his duty in the office. But the joining report that was submitted by the petitioner was not accepted and he was also not allowed to join his duty. The petitioner was however informed by the respondent No.3 that he would not be able to accept his joining report unless necessary instruction to that effect was received from the respondent No. 1. 3. Thereafter, the petitioner filed an application to respondent No. 1 stating the aforesaid facts and also requested him to direct the respondent No.3 to accept joining report of the petitioner. This application was received by the respondent No.1 on 8th March, 1994. But in the meantime respondent No.2 informed the petitioner that he was released from the duty with effect from 11th February, 1994. The petitioner's case is that he never received this order of release before the interim order that was passed by this Court on 4.3.94 in Civil Rule No.97 of 1994. The petitioner has, therefore, alleged that the respondents wilfully violated the order of this Court dated 4.3.94 passed in Civil Rule No.97 of 1994. 4. A show cause notice was issued to the respondents directing them to show cause as to why a contempt of Court proceedings should not be drawn up against them for alleged violation of the order of this Court dated 4.3.1994. 5. The respondents resisted this application by filing joint affidavit-in-opposition wherein it has been stated that the order of transfer of the petitioner was passed on 29.9.1993 and thereafter he was released with effect from 11.2.1994. 5. The respondents resisted this application by filing joint affidavit-in-opposition wherein it has been stated that the order of transfer of the petitioner was passed on 29.9.1993 and thereafter he was released with effect from 11.2.1994. Against this order of transfer the petitioner preferred some appeal before the controlling authority. But that appeal was not accepted. It has been further averred that the petitioner was on leave at the time when the order of release was passed. So this order of release was sent to him through some person of the office. But the petitioner refused to receive the order. Therefore, this order of release was sent to him by means of registered letter. But that registered letter could not also be delivered to him as it was reported by the postal peon that he was out of station. This order of release being not stayed the concerned officer did not accept his joining report. It has further been contended that the respondent No.1 was posted as Engineer-in-Chief only with effect from 1.12.1994 whereas the order of stay was passed on 4.3.94. The respondent No.1 had therefore nothing to do. Moreover, the respondents have all regards for complying with the direction of the Hon'ble High Court. But in view of the aforesaid facts the respondents may not be held to have violated the order of the Court wilfully. The respondents have, therefore, prayed for dismissing the prayer. 6. I have heard Mr. AM Lodh, the learned senior counsel appearing on behalf of the petitioner for a considerable length of time and also Mr. S. Das, the learned Advocate appearing for the respondents. 7. In view of the facts described above the question which arises for consideration is whether the respondents have wilfully disobeyed the order of this Court. 8. Civil Contempt as pointed out in section 2 (b) of the Contempt of Courts Act, 1971 means (i) wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court; (ii) or wilful breach of an undertaking given to a Court. The essential ingredient is 'wilful' disobedience and not any and every disobedience due to various reasons such as delay due to unavoidable circumstances, or inadvertence. That it was 'wilful' has to be proved. 'Wilful' connotes 'purposefulness' and 'clear intention to flout'. 9. The essential ingredient is 'wilful' disobedience and not any and every disobedience due to various reasons such as delay due to unavoidable circumstances, or inadvertence. That it was 'wilful' has to be proved. 'Wilful' connotes 'purposefulness' and 'clear intention to flout'. 9. Keeping the above meaning of the civil contempt in view it has to be ascertained whether there was a wilful violation/disobedience of the order of this Court dated 4.3.94 passed in Civil Rule No.97 of 1994. The operative portion of the order dated 4.3.94 which is alleged to have been violated, reads as under: "Pending disposal of the notice the impugned transfer order dated 29.9.1993 (Annexure 1 to the writ petition) issued by the Engineer-in-Chief, PWD, Govt of Tripura, Agartala. shall remain stayed. So/- S: Barman Roy, Judge" 10. It has been contended on behalf of the respondents that there was no wilful violation of the order of this Court as long before the receipt of this order the order of release was passed. But the petitioner suppressed the fact of release order while taking the interim order dated'4.3.1994. But Mr. AM Lodh, the learned senior counsel has quite strenuously contended that there is no proof to show that the petitioner received the order of release and a$ such the contention of the learned counsel for the respondents that he deliberately suppressed the fact of release order cannot be accepted. 11. Mr. Das, the learned counsel for the respondents has, however, produced the peon book and the registered letter which was sent to the petitioner. The peon book shows that at first the order of release was sent to the petitioner on 11.2.94 but the peon who went to serve this letter reported that the petitioner was not available even though he waited in his house for about two hours. Thereafter, the authority again sent the order on 4.2.94. But this time it was reported by the employee that the petitioner denied to receive the release order. The petitioner in his re-joinder-affidavit stated that this statement is absolutely false as no one met him to deliver the order. But Mr. Das, the learned counsel for the respondents has argued that the registered letter which was sent subsequently was also not delivered as the petitioner was out of station. The petitioner in his re-joinder-affidavit stated that this statement is absolutely false as no one met him to deliver the order. But Mr. Das, the learned counsel for the respondents has argued that the registered letter which was sent subsequently was also not delivered as the petitioner was out of station. The postal peon also made an endorsement to the effect that the petitioner was out of station and hence the letter could not be delivered. This fact is not denied. But the question is whether this amounts to service of notice. 12. The contention of Mr. Das, the learned counsel for the respondents is that all these facts taken together will lead to only inference that the order of release was communicated to the petitioner, and he was fully aware of the order of release before the order that was passed by this Court dated 4.3.94 in Civil Rule NdT97 of 1994. In support of his contention of Mr. Das has placed reliance upon a decision of the Supreme Court rendered in the case of State of Punjab vs. Khemi Ram reported in AIR 1970 SC 214 . In the aforesaid judgment their Lorships made interpretation of the word 'communicate' as follows : "The ordinary meaning of the word 'communicate' is to impart, confer or transmit information. It is the communication of the order which is essential and not its actual receipt by the officer concerned and such communication is necessary because till the order is issued and actually sent out to the person concerned the authority making such order would be in a position to change its mind and modify it if it thought fit. But once such an order is sent out, it goes out of the control of such authority, and therefore, there would be no change whatsoever of its changing its mind or modirying it." 13. In the instant case, it is quite apparent from the facts I have narrated above that the order of release was sent to the petitioner thrice, one being by means of registered post The postal peon reported on the cover of the registered letter that the petitioner was put of station. Since this remark of the postal peon was not controverted the Court made a query to the learned counsel for the petitioner as to how the petitioner could go out of station. In his reply Mr. Since this remark of the postal peon was not controverted the Court made a query to the learned counsel for the petitioner as to how the petitioner could go out of station. In his reply Mr. Lodh quite emphatically submitted that since the petitioner was on leave he could go anywhere he liked. I am, however unable to pursuade myself to appreciate the contention of Mr. Lodh as an employee even if he is on leave cannot leave the station without the permission of the authority. If he is to go to any place then in that case he is to furnish his leave address to the authority. The contention of Mr. Lodh is, therefore, devoid of any substance. 14. It is not disputed that the petitioner got his order of transfer in time and that order was challenged by him in the writ petition being Civil Rule No.97 of 1994. But after getting this order of transfer the petitioner went on leave just to frustrate the order of transfer. He went to office after getting the order dated 4.3.1994. But as stated above the conduct of the petitioner leads me to infer that he was aware of the order of release and this fact was not disclosed in, the writ petition. Apart from this it has also to be borne in mind that contempt proceedings are of a quasi criminal nature and therefore, wherever, there is reasonable doubt the person charged with contempt, is entitled to the benefit of this doubt. Moreover, a wilful default is punishable and not merely negligence or unintentional mistake. 15. It has been contended on behalf of the respondent No. 1 that respondent No.1 joined as Engineer-in-Chief long after the order was passed. The law of contempt requires that the person who asserts that the alleged contemner has knowledge of order must prove this fact beyond reasonable doubt. The averments of the respondent No. 1 that he was posted as Engineer-in-Chief with effect from 1.12.94 has not been controverted. According to the petitioner the order dated 4.3.94 (Annexure 1) was brought to the notice of respondent No.3. There is no statement that this order was brought to the notice of respondent No. 1. 16. The averments of the respondent No. 1 that he was posted as Engineer-in-Chief with effect from 1.12.94 has not been controverted. According to the petitioner the order dated 4.3.94 (Annexure 1) was brought to the notice of respondent No.3. There is no statement that this order was brought to the notice of respondent No. 1. 16. Therefore, having regard to all the facts as described above, I am of the view that there was no wilful disobedience of the order dated 4.3.94 passed in Civil Rule No.97 of 1994. 17. In the result, therefore, the petition is dismissed.