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2004 DIGILAW 401 (GAU)

Guni Ram Wange v. State of Arunachal Pradesh

2004-06-15

I.A.ANSARI

body2004
JUDGMENT I.A. Ansari, J. 1. For proper appreciation of the controversy raised by the present writ petition and the real issues involved therein, it is apposite to bear in mind some of the material facts and crucial stages, which have led to the passing of this order, whereby I intend to dispose of not only Writ Petition (Civil) No. 107 (AP) 2004, but also Misc. Case No. 39 (AP) 2004 and Cont. Case (C) No. 11 (AP) 2004. I have accordingly heard Mr. K. Ete, learned Counsel for the writ Petitioner, and Mr. P.K. Tiwari, learned Counsel appearing for the Respondent No. 2. I have also heard Mr. B.L. Singh, learned Senior Govt. Advocate, appearing on behalf of the remaining Respondents. 2. The writ Petitioner, while serving at Naharlagun as the General Manager, Arunachal Pradesh Co-operative Marketing and Supply Federation Limited (hereinafter referred to as "the APCMSFL") was, vide order, dated 28.11.2002, passed by the Respondent No. 2, namely, Managing Director, (APCMSFL), given the additional charge of the FPS whole-sale godown, Naharlagun, including procurement and distribution of PDS commodities and while the Petitioner was so functioning with the additional charge vested in him, the Respondent No. 2 passed an order, dated 07.02.2004, directing a team of two of the officers of the APCMSFL, namely, the Chief Accountant and a Deputy General Manager to check the accounts, that is, the cash memos/challans, daily stock books, etc., of the FPS main godown of the APCMSFL with effect from April, 2003, till date along with timely deposit of sale-proceeds to the cashier and to submit a report, in this regard, at the earliest, to the Respondent No. 2 Acting upon the directions so issued, the team of officers submitted, on 05.03.2004, a report to the Respondent No. 2 indicating therein, inter-alia, that the cash memoranda bearing numbers 2416 to 2425, dated 25.02.2004, to 5th March, 2004, which covered an amount of Rs. 1,67,869.93 had not been entered into the Daily Sales Abstract (DSA) and that the said amount had not yet been deposited with the cash branch. The details of the relevant cash memos were also submitted by the said team of officers to the Respondent No. 2. 1,67,869.93 had not been entered into the Daily Sales Abstract (DSA) and that the said amount had not yet been deposited with the cash branch. The details of the relevant cash memos were also submitted by the said team of officers to the Respondent No. 2. Thereafter, the Respondent No. 2 direct the Petitioner, vide the impugned order, dated 13.03.2004, to hand over, immediately, his complete charge of FPS wholesale godown, Naharlagun, to the Respondent No. 3, namely, Sri RB Paul, Junior Sales Assistant. The reason assigned for giving this direction, as reflected from the impugned order, was the mishandling of cash and stock of the FPS wholesale godown, Naharlagun. 3. Challenging the impugned order, dated 13.03.2004, as illegal, arbitrary, stigmatic and malafide in nature, the Petitioner approached this Court with a writ application with the grievances that the impugned order ought not to have been passed without giving any opportunity of showing cause or hearing to the Petitioner and that if there was any allegation, the authorities concerned could have resorted to departmental proceedings or inquiry, but could not have transferred the Petitioner by way of punishment nor could have the Petitioner been directed to hand over the charge to a person, who is not competent. This writ application gave rise to W.P.(C) No. 107 (AP) 2004. 4. While issuing notice of motion on 18.03.2004, this Court directed, in the interim, that the operation of the impugned order, dated 13.03.2004, aforementioned, shall remain suspended and the writ application was admitted on 19.04.2004. 5. By making a miscellaneous application, which has come to be registered as Misc. Case No. 39(AP) 2004, the Respondent No. 2 approached this Court with prayer, inter-alia, to vacate/modify/alter the interim order, dated 18.03.2004, aforementioned passed in W.P.(C) No. 107(AP)/2004. 6. As the order, dated 29.04.2004, passed in Misc. Case No. 39(AP)/2004 reveals, both sides submitted to the Court that the miscellaneous case as well as the writ petition be heard together. Both the writ petition as well as the miscellaneous case have accordingly been listed for hearing today. 7. 6. As the order, dated 29.04.2004, passed in Misc. Case No. 39(AP)/2004 reveals, both sides submitted to the Court that the miscellaneous case as well as the writ petition be heard together. Both the writ petition as well as the miscellaneous case have accordingly been listed for hearing today. 7. However, the writ Petitioner has, today, filed an application under Section 12 of the Contempt of Courts Act, 1971 read with Article 215 of the Constitution of India alleging wilful violation by the Respondent No. 2 of the interim order, dated 18.03.2004, aforementioned, passed in W.P.(C) No. 107 (AP)/ 2004, on the ground that despite the interim direction, two orders have been passed by the Respondent No. 2, one on 10.5.2004 and the other on 11.5.2004, the order, dated 10.05.2004, having divested, with immediate effect, the Petitioner of the additional responsibility of the FPS wholesale godown, Naharlagun, and the order, dated 11.05.2004, having directed the Petitioner to submit to the Respondent No. 2 the balance of cash, assets and stock under the Petitioner's possession in respect of the said FPS wholesale godown. 8. Before entering into the merit of the present writ petition, the question, which arises for consideration by this Court is as to whether this Court shall, now, proceed to decide the writ petition without deciding the contempt of this Court allegedly committed by the Respondent No. 2 and/or without the Respondent No. 2 having purged the contempt by withdrawing and/or cancelling the two orders, dated 10.05.2004 and 11.05.2004, aforementioned, whereby the Respondent No. 2 has allegedly committed contempt of Court. 9. While considering the above aspect of the matter, it is pertinent to note that by the order, dated 18.03.2004, aforementioned, this Court suspended the operation of the impugned order, dated 13.03.2004, whereby the Petitioner was directed to hand over the charge of the said wholesale FPS godown, Naharlagun, to the Respondent No. 3. While considering this contempt application, it is also imperative to bear in mind that one of the prominent grievances of the Petitioner was that the Respondent No. 3, to whom the charge was directed to be handed over, was not competent. While considering this contempt application, it is also imperative to bear in mind that one of the prominent grievances of the Petitioner was that the Respondent No. 3, to whom the charge was directed to be handed over, was not competent. This Court passed no interim direction in W.P.(C) No. 107 (AP) 2004 prohibiting the authorities concerned including the Respondent No. 2 from passing any further order(s) divesting the Petitioner of the responsibility of holding the additional charge of the FPS wholesale godown at Naharlagun, and/or the cash books, etc. What this Court did was to suspend the impugned order restraining thereby the Respondent No. 3 not to take over the charge and prohibiting thereby the Respondent No. 2 from enforcing his said direction. There is no allegation made by the writ Petitioner that despite the interim direction passed by this Court on 18.03.2004, either the Respondent No. 3 has taken over the charge and/or the Respondent No. 2 and/or any of the Respondents have forced the Petitioner to hand over the charge to the Respondent No. 3. 10. In the above view of the matter, since there was no impediment on the part of the Respondents, particularly, the Respondent No. 2 to divest the writ petition of the said additional responsibility given to him by the order, dated 28.11.2002 aforementioned, no prima facie case for initiating a contempt proceeding against the Respondent No. 2 has been made out by the writ Petitioner. 11. Coupled with the above, there is no rule of law or any statutory rule that a contemner cannot be heard unless the contempt is purged. In fact, in an appropriate case, the Court may instead of diverting its attention to contempt proceeding, hear the main application or the writ petition itself in order to bring an end to the controversy raised. Court has the discretion to tell a contemnor that he would not be heard and would not be allowed to participate in the Court proceedings unless the contempt is purged, but this is not an in flexible rule of practice and not a rigid rule of law. In such cases, the Court's discretion shall be guided and governed by the facts and circumstances of a given case. In such cases, the Court's discretion shall be guided and governed by the facts and circumstances of a given case. If facts of a given case so justify, the Court may form an opinion that the contempt is not so grave that the contemner be restrained from participating in the Court's proceedings until the contempt is purged and that the interests of justice would be better served by concluding the main proceedings instead of diverting to, and giving priority to, hearing the contempt proceeding. In such a case, the Court may proceed to hear both the matters simultaneously or independently of each other or in such order as it may deem proper. 12. While dealing with the above aspect of the matter, the law laid down by the Apex Court "In the matter of Anil Panjwani ( AIR 2003 SC 2177 )" may be referred to, wherein the Apex Court observed and held as follows: 6. It is no rule of law, and certainly not a statutory rule that a contemnor cannot be heard unless the contempt is purged. It has only developed as a rule of practice for protecting the sanctity of the court proceedings and the dignity of the Court that a person who is prima facie guilty of having attacked the Court may be deprived of the right of participation in hearing lest he should misuse such opportunity unless he has agreed to disarm himself. The Court would not be unjust in denying hearing to one who has shown his lack of worth by attaching the Court unless he has agreed to beat a retreat and the Court is convinced of the genuineness of such retreating. It would all depend on the facts and circumstances of a given case and the nature of contempt under enquiry which would enable the Court exercising its discretion either way. 9. To our mind, the rule as to denying hearing or withholding right of participation in the proceedings to the contemnor may briefly be summed up and so stated. It lies within the discretion of the court to tell the contemnor charged with having committed contempt of Court that he will not be heard and would not be allowed participation in the Court proceedings unless the contempt is purged. This is a flexible rule of practice and not a rigid rule of law. It lies within the discretion of the court to tell the contemnor charged with having committed contempt of Court that he will not be heard and would not be allowed participation in the Court proceedings unless the contempt is purged. This is a flexible rule of practice and not a rigid rule of law. The discretion shall be guided and governed by the facts and circumstances of a given case. Where the court may form an opinion that the contemnor is persisting in his behaviour and initiation of proceedings in contempt has no deterrent or reformatory effect on him and/or if the disobedience by the contemnor is such that so long as it continues it impedes the course of justice and/or renders it impossible for the Court to enforce its orders in respect of him, the Court would be justified in with holding access to court or participation in the proceedings from the contemnor. On the other hand, the Court may form an opinion that the contempt is not so gross as to invite an extreme step as above, or where the interests of justice would be better served by concluding the main proceedings instead of diverting to and giving priority to hearing in contempt proceeding the court may proceed to hear both the matters simultaneously or independently of each other or in such order as it may deem proper. 13. In the case at hand, the question of entering into contempt proceeding does not arise at all inasmuch as the Petitioner has miserably failed to show, prima facie, that the orders passed, on 10.05.2004 and 11.05.2004 aforementioned, have violated, far less wilfully violated, the interim direction passed by this Court on 18.03.2004. 14. Turning to the merit of the present writ petition, I notice from what have been discussed and pointed out above that as a General Manager of the APCMSFL, it is not the primary duty of the Petitioner to hold the charge of the FPS wholesale godown at Naharlagun. This was an additional responsibility, which was given to him by the order, dated 28.11.2002, aforementioned. This was an additional responsibility, which was given to him by the order, dated 28.11.2002, aforementioned. It also transpires from the materials on record that as a result of the information received of improper maintenance of accounts of the said godown and alleged mishandling/wrong handling of cash as well as stock thereof, a team of officers was directed, vide order, dated 07.02.2004, aforementioned, passed by the Respondent No. 2, to check the accounts of the said godown and this team, admittedly, reported that cash memoranda bearing numbers 2416-2425, dated 25.02.2004, to 05.03.2004, which involved an amount of as much as Rs. 1,67,869.93, had not been entered into the DSA. In a situation, such as this, it was not improper on the part of the Respondent No. 2, who is, ultimately, responsible for the effective functioning of the APCMSFL to divest the Petitioner of the additional responsibility of holding of the charge of the said godown. Seen in this context and particularly, in the backdrop of the serious nature of the allegations and the incriminating materials, which surfaced against the Petitioner, it was imperative, on the part of the Respondent No. 2, to react to the situation promptly by not to allowing the Petitioner to continue to hold the charge of the said godown. The object with which the impugned order, dated 13.03.2004, was passed is clear from a bare reading of the order itself inasmuch as this order, in no uncertain words, clarifies that the direction to hand over the charge was given in view of mishandling of cash and stock of FPS wholesale godown, Naharlagun. 15. The act of divesting the Petitioner of the responsibility of holding the charge of the said godown did not amount to his transfer by way of punishment nor can the Petitioner be said to have any indefeasible right to continue to hold the said additional charge. It was a step, which was imperative for effective functioning of the organisation itself. Such an order, in the face of the materials on record and in the light of complete absence of any material indicating malafide on the part of the Respondent No. 2, cannot be said to be arbitrary, malafide, unreasonable and/or illegal. It was a step, which was imperative for effective functioning of the organisation itself. Such an order, in the face of the materials on record and in the light of complete absence of any material indicating malafide on the part of the Respondent No. 2, cannot be said to be arbitrary, malafide, unreasonable and/or illegal. Such an interim arrangement, as a part of internal affairs of the APCMSFL, to arrest, forthwith, the mishandling/wrong handling of the cash and stock, a step of such an urgent nature, as the Respondent No. 2 has resorted to, cannot be said to be contrary to the principles of natural justice. Viewed from this angle, the subsequent orders passed by the Respondent No. 2 on 10.05.2004 and 11.05.2004 aforementioned cannot also be said to be illegal and/or arbitrary and/or malafide. The service jurisprudence does not prohibit that pending an inquiry, a person who is accused of mishandling of cash and stock, cannot as an interim measure be divested of such control without having been given any opportunity of showing cause and/or hearing; hence, an order such as the one, which stands impugned, cannot be interfered with as stigmatic in nature. The impugned direction passed by the Respondent No. 2 was wholly interim in nature as can be gathered from the fact that the Petitioner, now, as the materials on record reveal, stands served with a notice to show cause as to why disciplinary proceeding be not initiated against him for alleged act of omission to hand over cash amounting to Rs. 1,54.685.37 and for issuing 370.05 quintals of rice contrary to the instructions given in that regard. 16. What crystallizes from the above discussion is that the impugned order is not illegal, arbitrary, malafide and/or stigmatic in nature and cannot, therefore, be interfered with. 17. Considering, therefore, the matter in its entirety, I find no merit in this writ petition and the same shall accordingly stand dismissed. The interim direction passed by this Court, on 18.03.2004, shall accordingly stand vacated. 18. In terms of the directions contained hereinabove, the Misc. case No. 39 (AP)/2004 too shall stand disposed of. 19. Because of what have been discussed and pointed out above, I find no reason to initiate a proceeding for contempt of Court against the Respondent No. 2. For the view so taken, COP (C) No. 11 (AP)/2004 shall stand dismissed in limine. 20. case No. 39 (AP)/2004 too shall stand disposed of. 19. Because of what have been discussed and pointed out above, I find no reason to initiate a proceeding for contempt of Court against the Respondent No. 2. For the view so taken, COP (C) No. 11 (AP)/2004 shall stand dismissed in limine. 20. No order as to costs. Petition dismissed.