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2004 DIGILAW 326 (PAT)

Shiv Prasad Singh v. State Of Bihar

2004-03-22

R.S.GARG

body2004
Judgment R.S.Garg, J. 1. Shri Bimal Kumar, Sen or counsel with Shri Dineshwar Mishra opened his argument firstly referring to the affidavit dated 18.12.2003 with which order of the Supreme Court has been annexed. After taking me through the order passed by the Supreme Court he submitted that he be allowed to refer to the order dated 22.9.2003 passed by this Court. After taking me through some portion of that order Shri Bimal Kumar, Senior Counsel made his submission that in the proceeding dated 22.9.2003 this Court had recorded a finding that on the date Mr. G.S. Kang has passed the order, the said petitioner had not completed ten years of service. This Court requested Mr. Bimal Kumar Senior Counsel to read that finding from the order dated 22.9.2003. After taking me through number of paragraphs learned senior counsel read internal page 11 of the order that reads as under:- - "Unfortunately Annexure-1 did not take into consideration the observations made by this Court rather the directions issued by this Court. I could understand the bona fides of the order if Mr. G.S. Kang after taking into consideration the observations made by this Court had passed the orders observing that the petitioner would not be eligible because he had not completed ten years from the date of his reappointment." 2. This order nowhere says nor records a finding that the petitioner did not complete ten years. This order simply amounts to say that if Mr. G.S. Kang in his order had observed that the petitioner did not complete ten years, therefore, he would not be entitled to promotion then this Court could understand it. The submission made by the learned Senior Counsel is just contrary to the records and tantamounts to misreading of the order. 3. At this stage learned senior counsel says that before proceeding further in the matter the observation made by this Court in order dated 22.9.2003 which are as follows be also observed :- - "I could also appreciate if the order Annexure-1 had said that the second time bound promotion would not be given to the petitioner because from the date of his reappointment he had not completed 25 years qualifying services." 4. Learned counsel submits that a juxtapose reading of both these portions of the order would lead to an inference that this Court had recorded a finding that the writ petitioner did not complete ten years service. 5. This Court has also heard Mr. G.S. Kang personally so that either Mr. G.S. Kang or his counsel may not have the grievance that they were not heard fully. 6. I pointedly asked Mr. G.S. Kang that in my order dated 22.9.2003 where he could read or find any finding recorded by this Court that the petitioner did not complete ten years. To this Mr. G.S. Kang says that when he engages a counsel his counsel has to argue the matter. This Court finds that on certain factual aspects the client has to impart an instruction to the counsel but on the legal aspects of the matter counsel has to apply his legal acumen. This Court again asked him that whether this court had ever recorded a finding in its order dated 22.9.2003 that the petitioner did not complete ten years. This time Mr. G.S. Kang says that there is no such finding. 7. it is most unfortunate that even in contempt matter a senior counsel is taking the Court for a ride. The learned counsel makes those allegations which cannot be substantiated on the strength of the record. After taking me through the complete records he was unable to find even a single line to show or suggest that this Court had recorded a finding that the writ petitioner had not completed ten years. Tilt last Shri Bimal Kumar Senior counsel was not ready and willing to say that he had made a wrong statement but he continued saying that this Court did record a finding that the original petitioner did not complete ten years. In a matter of contempt when false statements or misleading statements are made that adds insult to the injury and would not insulate the petitioner, this Court in fact is aggrieved by the conduct of the counsel. However, that would be a different issue. 8. The question for consideration is whether Mr. G.S. Kang committed the contempt of the lawful authority of this Court by ignoring the orders passed by this Court. However, that would be a different issue. 8. The question for consideration is whether Mr. G.S. Kang committed the contempt of the lawful authority of this Court by ignoring the orders passed by this Court. Shri Bimal Kumar Senior counsel referred to the affidavit dated 18.12.2003 and submitted that the Noticee had gone to the Supreme Court and the Supreme Court had passed an order on 15.12.2003 directing the petitioner to file a supplementary show cause and also required this Court that in case the Court records a finding against the petitioner and convicts then four weeks time at the request of the petitioner be granted to him to enable the alleged contemner to seek appropriate remedy as may be available under the law before the Court. 9. It was then argued that the affidavit dated 10.9.2003 filed in the court on 22.9.2003 be also considered alongwith its Annexures. Referring to Annexure-2 it was submitted that by order dated 2.5.1980 the petitioner was reappointed with an embargo/condition that he shall be placed in the minimum of pay scale of Rs. 296.00 and he would not be entitled to any future promotion. At this stage it would be necessary to see that the order dated 2.5.1980 came up for consideration before this Court in CWJC No. 4369 of 1994. While disposing of the said writ application by order dated 21.8.1995 this Court observed that the order contained in Annexure-1 was passed in the year 1980 and the petitioner (writ petitioner) did not challenge the same in any Court of law since then, but in my opinion (Courts opinion when the Government introduced the scheme of time bound promotion he (the writ petitioner) cannot be denied the benefits arising therefrom only on account of the impugned order (Annexure-1) if he is otherwise eligible or found suitable. The effect and impact of Annexure-2 (appended to the show cause) was in fact diluted by this Court by observing that though the order dated 2.5.1980 did not allow the petitioner to seek any promotion etc, but if the Government has introduced a policy then petitioner would be entitled to his time bound promotion, if he is otherwise eligible and found suitable. 10. 10. It was submitted on behalf of the alleged contemner that in view of the reappointment order the petitioner was not eligible for his promotion, therefore, the alleged contemner relying upon his own understanding was justified in issuing the order on 26.7.2003. At this stage I must observe that this argument is contrary to the records and would even be contrary to the most ordinary understanding of an ordinary person. This very order dated 2.5.1980 was considered by this Court in CWJC No. 4369 of 1994 and despite existence of order dated 2.5.1980 and the terms contained in the said order this Court observed that the writ petitioner would be entitled to the benefits, if he is otherwise eligible and found suitable. How on the face of this observation of this Court the alleged contemner could observe that the petitioner was not entitled to anything beyond what was mentioned in the order of reappointment, 11. It would be profitable to go through the order dated 25/26.7.2003 passed by Mr. G.S. Kang and impugned in the writ application. In the whole of the order it is nowhere observed by Mr. G. S. Kang that the petitioner was not entitled to the promotion because he did not complete ten years or twenty five years either from the date of his initial appointment or from the date of his reappointment. The order does not say that the petitioner who was otherwise entitled would not be entitled to anything because of the ineligibility. The order says that the promotion given to the petitioner were contrary to the orders of reappointment. This part of the order is sought to be justified on the ground that before issuing this order Mr. G.S. Kang to show his bona fide issued a notice to show cause to the writ petitioner and only thereafter had passed the order. 12. The question is not what was done by Mr. Kang before issuing the order. The question is whether the order passed on 25/26.7.2003 runs contrary to the order passed by this Court. Issuance of a notice to show cause to some incumbent or some employee of the Government would not proved bona fides of an officer issuing notices because it is a requirement of law and if there is no such requirement then that would be requirement of principle of natural justice. Issuance of a notice to show cause to some incumbent or some employee of the Government would not proved bona fides of an officer issuing notices because it is a requirement of law and if there is no such requirement then that would be requirement of principle of natural justice. Simply by issuing a notice to show cause Mr. Kang cannot say that any order passed subsequently would be a good order. When this Court in CWJC No. 4369 of 1994 had observed that despite; the order of 1980 the petitioner would be entitled to time bound promotion if he is otherwise eligible and found suitable then while handling the promotion of the petitioner Mr. G.S. Kang was required to go through the order passed by this Court because the same was within his knowledge. Showing absolute disrespect and ignoring the orders of the High Court and the interest of writ petitioner that the writ petitioner would be entitled to the promotional benefit or not Mr. Kang observed that the promotion given to the writ petitioner was contrary to the order of the reappointment. 13. This Court in its order dated 22.9.2003 had observed that bona fide of Mr. G.S. Kang would float if he had recorded that order was passed because the writ petitioner did not complete ten years. Unfortunately that observations made by this Court is sought to be interpreted by arguing that this Court had recorded a finding that the petitioner did not complete ten years. 14. It is to be noted that the order in question was passed on 25/26th July, 2003. If the said writ petitioner could secure the promotion order with effect from 1.4.1981 and 9.9.1992, and according to the understanding of Mr. G.S. Kang the orders were bad, then in any case he was obliged and required to pass an order because the date when he had passed the order the petitioner had completed more than ten years continuous service before 1.1.1996 when the policy of the time bound promotion was recalled. Undisputedly, on or before 1.1.1996 the writ petitioner had completed 15 years service. If Mr. Undisputedly, on or before 1.1.1996 the writ petitioner had completed 15 years service. If Mr. G.S. Kang was acting bona fide then it was expected of him that instead of referring to the order of reappointment he would open his eyes look into the policy, consider the complete service records and pass an order that even if the said writ petitioner was not entitled to the time bound promotion with effect from 1.4.1981 and 9.9.1992 then too in accordance with the direction of the High Court he would be entitled to first time bound promotion on completion of ten years service from the date of reappointment and would not be entitled to second time bound promotion because before he completed twenty five years of service the policy had been withdrawn. 15. The order dated 25/26th July, 2003 in fact shows malice and obsession of the Officer that come what may the writ petitioner would not be entitled to any benefits in light of the order of reappointment. 16. It is also to be seen that the alleged contemner has filed his further show cause on 17.10.2003. With the said show cause he has filed Annexure-3, a letter issued by him to the District Magistrate, Gaya. In paragraph 3 of the said order the alleged contemner has recorded as under: (LOCAL LANGUAGE) 17. The casual manner in which the alleged contemner refers the High Court and its orders and says that despite orders of the Government the writ petitioner under some orders of the High Court has secured promotion then his bona fide that he respects the High Court are writ large. The casual manner in which this observation had been made would certainly speak bad. 18. Annexure-2, the order dated 2.5.1980, has been relied upon by the alleged contemner for issuing the order contained in Annexure-1, to the original writ application. I have already observed that the said order was not to remain effective for all the times to come because the High Court had diluted its rigour and effect. It was then argued that the promotion given to the petitioner was wrong, therefore, the alleged contemner was justified in recalling the order of promotion. The question is not whether the promotion orders were rightly or wrongly given. It was then argued that the promotion given to the petitioner was wrong, therefore, the alleged contemner was justified in recalling the order of promotion. The question is not whether the promotion orders were rightly or wrongly given. The question was that if the High Court had observed that the writ petitioner would be entitled to promotional benefits if he is otherwise found eligible then simply on the strength of the order of reappointment how the order of promotion could be recalled. In case the promotion orders were required to be reconsidered, the alleged contemner should have taken care to come out of his conviction. He was simply observing that as the promotion was contrary to the order of reappointment the promotion will have to go. The obsession is writ large. 19. It was then contended that the alleged contermner could not understand or could little understand the order passed by this Court therefore, committed the folly. This officer is in Government service since 1970. He is an IAS who is working with the Government in different departments but he says that he could not understand a simple order passed in very simple language by this Court. The order contained in Annexure-4 is not a piece of literature, it is in simple terms and can be understood by any person who has basic knowledge of English. This I am required to observe because a plea has been, raised that the alleged contemner could not understand the import, effect and the importance of the order of the High Court. The order simply says that if the writ petitioner is otherwise entitled he would get promotion. I do not think that any legal acumen is required to understand that order or any extra qualifications in a particular subject are needed to understand that. 20. It is contended by the alleged contemner through his counsel that show cause dated 23.3.2004 be also taken into consideration. The said show cause notice in fact is not an additional show cause. 20. It is contended by the alleged contemner through his counsel that show cause dated 23.3.2004 be also taken into consideration. The said show cause notice in fact is not an additional show cause. The alleged contemner was given fullest opportunity to file further reply in accordance with the directions of the Supreme Court but instead of filing a show cause or a further reply the alleged contemner has simply submitted that he has the highest regard for the High Court and its order and the Courts of Justice is held to be a temple of justice and the temples denotes sanctity, purity and solemnity and the Hon ble Judges are the guardians and idols of Justice, trust and faith and Judiciary is an esteemed institution which commands Highest respect, it is submitted on behalf of the alleged contemner that he is in whirlpool of sorrow, anxiety and openly expresses regrets. It is also submitted by him that he prays for pardon. On facts no further reply has been filed and apology which was earlier tendered has been reurged and restated in different language reminding this Court that in case the alleged contemner is found guilty then his apology may be accepted. 21. The State Government has filed its supplementary counter today i.e. on 22.3.2004. I am at a loss to understand as to why this supplementary affidavit by the State has been filed. The writ application so far as the State is concerned stands finally disposed of. No body asked the state to file any further affidavit. It is also to be seen that the affidavit was sworn on 17.10.2003 and has been filed on 22.3.2004. If the State Government really wanted to be honest to the Court then immediately after the affidavit was prepared they could have filed this affidavit in the Court. I am at a loss to understand as to why the State was keeping a case up its sleeves right from 17.10.2003 to 22.3.2004. Be that as it may the affidavit has no value. It simply refers to and informs the Court that the orders passed by this Court has already been complied with. For the State Government that is the end of the matter. 22. Learned counsel for the alleged contemner then submitted that the alleged contemner could not understand the intricacies of law therefore he had passed the impugned order. It simply refers to and informs the Court that the orders passed by this Court has already been complied with. For the State Government that is the end of the matter. 22. Learned counsel for the alleged contemner then submitted that the alleged contemner could not understand the intricacies of law therefore he had passed the impugned order. I have already observed that the earlier order passed by this Court was not in extra technical terms which could not be understood by the alleged contemner. The order simply said that despite existence of the order of reappointment passed in the year 1980 if the Government has introduced the scheme of the time bound promotion the petitioner could not be denied the benefits simply on account of the said order of 1980, if he is otherwise eligible and found suitable. I fail to understand that for understanding this simple observation and direction what lingual knowledge is required. An I.A.S. who is serving the State in different departments for more than 30 years cannot be allowed to say that he could not understand what the High Court observed. 23. It was then submitted that if this Court finds the alleged contemner guilty then his apology may be accepted or in the alternative he be extended the benefits under the provisions of Probation of Offenders Act or the order of punishment may be kept in abeyance and the same be reconsidered after sometime taking into consideration the future conduct of the alleged contemner. 24. Taking into consideration the totality of the circumstances I am of the considered opinion that not only by passing orders contained in Annexure-1 to the original writ application the alleged contemner committed contempt of the lawful authority of this Court and had shown further disrespect to this Court by making false statement in this Court and trying to mislead this Court through his counsel. At this stage I am again to record that a counsel argues the matter under the instruction and if the alleged contemner imparted the instruction to his counsel to say in the Court that this Court recorded a finding against the interest of the original writ petitioner then the alleged contemner must suffer brunt of this wrong, bad and misleading instructions. 25. It is further to be seen that the said Officer Mr. 25. It is further to be seen that the said Officer Mr. G.S. Kang did not take into consideration the orders passed by this Court while passing the order dated 25/26.7.2003. I hold him guilty. I hold that he has committed contempt of the lawful authority of this Court. 26. At this stage the question would be whether the apology submitted by the alleged contemner has to be accepted. After going through the complete records and taking into consideration the contumacious conduct of the alleged contemner f am of the considered opinion that the apology submitted by Mr. G.S. Kang is not to be accepted. The said apology is hereby rejected. 27. The question now would be that whether the alleged contemner would be entitled to the benefit of the provisions of Probation of Offenders Act. Sec. 3 of the Probation of Offenders Act reads as under :- - "3. Power, of Court to release certain offenders after admonition--When any person is found guilty of having committed an offence punishable under Section 379 or sec. 380 or sec. 381 or sec. 404 or sec. 420 of the Indian Penal Code or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him to any punishment or releasing him on probation of good conduct u/s. 4, release him after due admonition." 28. In the matter of Hotel Alankar (P) Ltd. V/s. S.P. Nanda, 1992 Criminal Law Journal 1788 a Division Bench of Orissa High Court has extended benefit of Sec. 3 of the Probation of Offenders Act to the alleged Contemner. In the opinion of this Court the provisions contained in sec. 3 of the Probation of Offenders Act would not apply to a matter where a particular person is to be tried under the provisions of Contempt of Courts Act. sec. In the opinion of this Court the provisions contained in sec. 3 of the Probation of Offenders Act would not apply to a matter where a particular person is to be tried under the provisions of Contempt of Courts Act. sec. 3 of the Act in fact is in relation to the offences which are in breach of the ordinary law which can be dealt with under the said provision. The contempt Act relates to the majesty of the High Court and the other Courts. When a person commits contempt of the lawful authority of any Court then he exposes himself to the risk and he cannot be allowed to say that he be extended the benefit of Section 3 of the Probation of Offenders Act. 29. It was then submitted that Judgment of the Supreme Court in the matter of Om Prakash Jaiswal V/s. O.K. Mittal and Anr., (2000) 3 SCC 171 be also taken into consideration. The said judgment undisputedly has been overruled by a larger Bench of the said Court but the learned counsel for the alleged contemner maintains that it has been overruled only on the point of initiation of the proceedings and question of limitation, therefore, it would still be a good authority for other proposition. Though I doubt the position but be that as it may I will appreciate that part of the argument also. In the said matter the Supreme Court was considering the question of initiation of proceeding and the basis and justification of power of the Courts and in that context it had observed that the power is to preserve the independence of the judiciary essential for a civilised society. The Supreme Court had observed that power is to be exercised only when a clear case is made out and an action can also be condoned on genuine apology. In the present matter I have already observed that the apology submitted by the alleged contemner cannot be accepted. On one side he is still trying to justify the order dated 25/26.7.2003 by referring to the earlier documents and letters and apart from that sometimes he says that he be exonerated or his lapses be condoned. The apology is an eyewash, a tool to avoid the liability. On one side he is still trying to justify the order dated 25/26.7.2003 by referring to the earlier documents and letters and apart from that sometimes he says that he be exonerated or his lapses be condoned. The apology is an eyewash, a tool to avoid the liability. In a matter of contempt when it is known to the alleged contemner that he has committed a wrong then instead of coming out with false pleadings, bad arguments and illegal and absurd defence, he should come and say that he had committed a wrong and he be therefore, exonerated. 30. In the present matter the conduct of Mr. G.S. Kang does not exhibit innocence on his part. Though the supplementary counter affidavit refers to number of things but the same is beautifully vague and is conspicuously silent in relation to his own conduct. To tender an apology is not the end of the matter. One must express from the care that he is sorry to what he had done and he is really ashamed for undermining the authority of the High Court and he must also inform the High Court that for a particular reason he could not understand the orders of the High Court. Simply to say that a person has not earned any bad remark during the period he served the Government and he is in the whirlpool of sorrow would not be the end of the matter. 31. In the present matter I am unable to observe that Mr. G.S. Kang has shown any remorse. 32. Reliance was also placed upon a Full Bench Judgment of the Andhra Pradesh High Court in the matter of State of Andhra Pradesh V/s. G.M. Anjaiah, 1996 Cr LJ 2755 to say that the apology can be accepted. In the said matter the Advocate was arguing the case of urgency, he raised his voice as the Court was not accepting his request. He submitted his apology but resiled from the same and indulged in shouting slogan outside Court and continued defiant behaviour. The Full Bench of the Andhra Pradesh High Court observed that undue mercy or sympathy cannot be extended and the Court awarded six months imprisonment. After all misplaced sympathy and displaced anger are always bad and lead to bad result. 33. The Full Bench of the Andhra Pradesh High Court observed that undue mercy or sympathy cannot be extended and the Court awarded six months imprisonment. After all misplaced sympathy and displaced anger are always bad and lead to bad result. 33. In the present matter the manner in which the bad order though it has been set aside by the High Court is sought to be justified would in fact be an argument only for the argument sake. 34. At this stage I asked Mr. G.S. Kang that whether he has to say anything about the question and quantum of sentence. He says that he has nothing to say. 35. Taking into consideration the totality of the circumstances and the defences raised by Mr. G.S. Kang I think two months simple sentence would serve the purpose, he shall also pay fine of Rs. 2000.00 . 36. In accordance with the direction of the Supreme Court the sentence shall remain suspended for a period of four weeks. If in the meanwhile Mr. G.S. Kang files an appeal before the higher forum and secures an order in his favour then the matter would be governed by the order passed by the higher forum and in case Mr. G.S. Kang is unable to obtain any order in his favour then he may appear in this Court on 26th April, 2004 for undergoing the sentence. 37. The proceedings are closed.