Research › Search › Judgment

Gauhati High Court · body

2006 DIGILAW 683 (GAU)

Ajit Kumar Talukdar v. Pabitra Kr. Kalita

2006-07-27

AMITAVA ROY

body2006
JUDGMENT Amitava Roy, J. 1. Willful disobedience of the judgment and order dated 06.09.1999 passed by this Court in CR 4065/98 has been alleged in the instant petition. 2. I have heard Mr. M H Rajborbhuiya, learned Counsel for the Petitioner and Mr. P. Borthakur, learned Counsel for the Respondents. 3. The factual background is indispensable. The Petitioner had invoked the writ jurisdiction of this Court praying for an appropriate writ and/or direction against Assam Government Construction Corporation Limited (hereafter referred to as the Corporation) to release his service benefits following his voluntary retirement from its service. In the writ petition, he averred that at the relevant time, he was holding the post of Accountant in the pay scale of Rs. 875/- Rs. 2000/- per month, which was later on revised. On 30.10.1997, the Corporation issued notice intimating its willing employees to avail its voluntary retirement scheme. The Petitioner opted therefor. Eventually he was retired on the basis thereof. 4. The Petitioner approached this Court complaining that his due service benefits had not been released to him. The Corporation in its affidavit highlighted that it had its own Rules governing the service conditions of its employees and that all Rules and Regulations of Assam Government were not applicable to it. It denied in particular of having assured the employees willing to go for voluntary retirement in terms of the scheme to be granted the benefits as per the Central Government norms. According to it, benefits under the scheme were computable in terms of its existing Rules. It admitted that the Petitioner was allowed voluntary retirement w.e.f. 18.4.1998 and assured that the benefit of the voluntary retirement scheme in terms of its Rules would be made available to the Petitioner. 5. This Court by order dated 6.9.1999 disposed of the petition in the following terms. 6.9.1999 It is submitted by the learned Advocate for the Petitioner Mr. LP Sharma that the Petitioner wants to go on voluntary retirement and the prayer for voluntary retirement has been accepted by the Respondents No. 2 and 3 as per Rule of Corporation. It is further submitted by Mr. Borthakur, learned Advocate appearing for the Corporation that the Respondents No. 2 and 3 are ready and willing to pay all the monetary benefits available to the Petitioner according to the Rule of Corporation. It is further submitted by Mr. Borthakur, learned Advocate appearing for the Corporation that the Respondents No. 2 and 3 are ready and willing to pay all the monetary benefits available to the Petitioner according to the Rule of Corporation. Accordingly, this matter shall stand disposed of with a direction that within a period of four months, the Petitioner shall be paid the monetary benefits available to him. Heard Mr. L.P. Sharma, learned Advocate for the Petitioner and Mr. P. Barthakur, learned Advocate for the Respondents. 6. On the application filed under Sections 11 and 12 of the Contempt of Courts Act, 1971 and Rule 3 of the Contempt of Court (Gauhati High Court) Rules, 1997, read with Article 215 of the Constitution of India alleging willful violation of the order, the instant proceeding was registered. During the pendency of the proceeding, the case records went untraceable and had to be reconstructed in compliance of the Hon'ble Chief Justice (Acting) passed on 28.3.2005. As is evident from the report submitted by the Registrar General of this Court on 28.3.2005, a process on the administrative side has been initiated to fix the responsibility for the lapses and to take necessary departmental action. The records have been reconstructed on the basis of the documents furnished by the learned Counsel for the Petitioner. 7. It has been alleged in the Contempt application that the Managing Director of the Corporation even after the receipt of the order dated 6.9.1999 deliberately refused compliance thereof and therefore, was liable to be penalized under the Contempt of Courts Act, 1971. This Court issued notice on Shri Liladhar Choudhury the then Managing Director of the Corporation. During the pendency of the proceeding, the incumbents in the office of the Managing Director of the Corporation got transferred from time to time and had to be impleaded at the instance of the Petitioner. After Liladhar Choudhury, on applications being filed by the Petitioner and registered as MC 18/02, MC 78/02 and MC 1766/03, Shri Khagendra Nath Choudhury, Shri Bijoy Kumar Das and Shri Karunavi Rajkhowa were impleaded as Respondent contemnor as his successors in office. Finally Shri Pabitra Kumar Kalita has been impleaded as the current Managing Director of the Corporation. After Liladhar Choudhury, on applications being filed by the Petitioner and registered as MC 18/02, MC 78/02 and MC 1766/03, Shri Khagendra Nath Choudhury, Shri Bijoy Kumar Das and Shri Karunavi Rajkhowa were impleaded as Respondent contemnor as his successors in office. Finally Shri Pabitra Kumar Kalita has been impleaded as the current Managing Director of the Corporation. He, on 16.12.2005, submitted his affidavit contending in substance that this Court by judgment and order dated 6.9.1999 had directed payment of monetary benefits of the Petitioner according to the Rules of the corporation though in the writ petition, he had prayed for computation of his entitlements as per the Central Government Rules. According to the answering Respondent, the Petitioner had been duly paid in full save and except amount of Rs. 8012/- towards balance Employee's Contributory Provident Funds, which he refused to accept. Contending that the Corporation is a State Government organization and not bound by the Central Government Schemes and Rules, the payment particulars of the Petitioner were disclosed in the counter as hereunder. (a) Gratuity: Rs. 72,000/- (b) Leave Encashment Benefit Rs. 15,999/ (c) Balance ECPF Rs. 48,012/- (paid Rs. 40,000/-) The balance offered by cheque had been refused by the Petitioner. 9. The Respondent asserted that the Petitioner's claim for three months notice pay of Rs. 36,000/-, Leave Transfer Concession benefit of Rs. 36,000/- Ex-gratia for 48 months was untenable having been quantified under the Central Government Rules not applicable to the Corporation. The allegation of willful disobedience of the Court was denied. 10. Mr. Rajbarbhuiyan, learned Counsel for the Petitioner has assertively urged that the stand taken in the affidavit is in brazen departure from the one pleaded in the earlier affidavit filed by the earlier Managing Director of the Corporation. Referring to a photocopy of the certified copy of the order dated 19.12.2001 of this Court in the instant proceeding to the effect that the Petitioner's total entitlement had been computed to be at Rs. 5,40,600/- Mr. Rajborbhuiyan has argued that there being an obvious attempt on the part of the Respondent to mislead the Court and deny the Petitioner his dues in terms of the order dated 6.9.1999 of this Court, the Respondent is guilty of contempt of this Court. 5,40,600/- Mr. Rajborbhuiyan has argued that there being an obvious attempt on the part of the Respondent to mislead the Court and deny the Petitioner his dues in terms of the order dated 6.9.1999 of this Court, the Respondent is guilty of contempt of this Court. In this regard, the learned Counsel also referred to the photo copy of the certified copy of the order dated 4.8.2003 passed by this Court also recording the submission of the learned Counsel for the Petitioner asserting his (Petitioner) claim to be Rs. 5,40,600/- Mr. Rajborbhuiya contended that the Petitioner having served the Corporation for long 32 years, it is even otherwise inconceivable that his total entitlements would be as quantified by the Corporation. There being a conscious endeavour to deprive him of his legitimate dues in contemptuous disregard to the order of this Court, exemplary penal action against the Respondent is called for. 11. In reply Mr. Borthakur has urged that this Court by order dated 6.9.1999 having required the Corporation to release the Petitioner's entitlement in accordance with its Rules which has been duly complied with, no case for any willful disobedience of the said order has been made out and, therefore, the petition is liable to be dismissed. Referring to the official records, the learned Counsel urged that no affidavit to in the order dated 19.12.2001 had been filed by Shri Liladhar Choudhury who at the relevant time was the Managing Director of the Corporation. As the Petitioner is not entitled to any benefit under the Central Government schemes or orders, the allegation of contempt is misconceived, he having been paid his dues in terms of the Rules of the Corporation in respectful compliance of the order dated 06.09.1999 of this Court. 12. The rival submissions have been duly considered. The available records disclose that the proceeding at the first instance was initiated against Shri Liladhar Choudhury who at the relevant time was the Managing Director of the Corporation. He was, thereafter, in the year 2002-03, replaced in seriatim by Shri Khagendra Nath Choudhury, Shri Bijay Kumar Das and Shri Karunavi Rajkhowa. As the records of the proceeding were found missing and untraceable, with the permission of the then Chief Justice (Acting), the same was reconstructed. He was, thereafter, in the year 2002-03, replaced in seriatim by Shri Khagendra Nath Choudhury, Shri Bijay Kumar Das and Shri Karunavi Rajkhowa. As the records of the proceeding were found missing and untraceable, with the permission of the then Chief Justice (Acting), the same was reconstructed. It was thereafter that by order dated 27.4.2005 passed in MC 1097/05, Shri Pabitra Kumar Kalita, in-charge Managing Director of the Corporation was impleaded as the Respondent. He on 16.12.2005 has filed the affidavit noticed hereinabove. The reconstructed records do not contain any other affidavit filed by the earlier Respondents. The situation, however, is compounded by the two orders of this Court dated 19.12.2001 and 4.8.2003 passed in the case, the former clearly indicating the existence of an affidavit filed on behalf of the Respondent disclosing computation of the Petitioner's total entitlement to be at Rs. 5,40,600/- out of which an amount of Rs. 87,999/- had been paid and the other recording the submission of the learned Counsel for the Petitioner to the above effect. The dated 19.12.2001, which is of prime significance for the disposal of the instant proceeding, is extracted herein below. 19.12.2001 The affidavit filed on behalf of the sole Respondent would go to indicate that the Respondent was holding the Office of the Managing Director. Assam Government Construction Corporation Ltd. for a limited period from 01.02.2000 to 28.02.2001 and during the aforesaid period some payment amounting to Rs. 87.999/- out of the total entitlement of the writ Petitioner has been made. The aforesaid total entitlement of the writ Petitioner has been computed at Rs. 5.40.600/-. While leaving the question of initiation of the contempt proceeding against the present Respondent pending for the time being. Petitioner is granted the liberty to raise his demand for compliance with the Court's order dated 06.09.1999 passed in Civil Rule No. 4065/98 on the new incumbent of the Office of the Managing Director, Assam Government Construction Corporation Limited and thereafter if the Petitioner feels aggrieved, to amend the Contempt Petition by impleading the said new incumbent as party Respondent. 13. In the order dated 04.08.2003 as well the amount of Rs. 5,40,600/- to be amount to which the Petitioner is entitled was referred to. That the sum of Rs. 87,999/- had been paid therefrom was also minuted. 14. 13. In the order dated 04.08.2003 as well the amount of Rs. 5,40,600/- to be amount to which the Petitioner is entitled was referred to. That the sum of Rs. 87,999/- had been paid therefrom was also minuted. 14. In the affidavit filed by the present Respondent Shri Pabitra Kumar Kalita, the Petitioner's entitlement have been indicated to be much less than Rs. 5,40,600/-, precisely Rs. 1,36,081/- (Rs. 72,000/- + Rs. 15,999/- + Rs. 48012/- = Rs. 1,36,081/-) out of which only Rs. 8,012/- has remained unpaid as the Petitioner has refused to receive the cheque for the amount when offered. Significantly, the counter does not refer to any earlier affidavit. No attempt has also been made on behalf of Respondent to controvert the contention of the learned Counsel for the Petitioner that such an affidavit had been filed disclosing the Petitioner's entitlements to be Rs. 5,40,600/- as taken note of by this Court in the order dated 19.12.2001. The learned Counsel for the Respondent, however, in course of his arguments denied that any such affidavit referred to in the order dated 19.12.2001 had been filed. To reinforce his stand Mr. Borthakur had further insisted that the filing registers etc. of this Court be verified for the purpose. 15. On such verification as suggested, it however, appears that an affidavit in COP(C) 121/2000 had been filed on 27.09.2001 being registered as SI. No. 13829/29 of the General Filing Register, by Ms. S.D. Bhuiyan, Advocate. The records reveal that the affidavit was also received by the concerned section of this Court on the same date being transited thereto in the official course of business. The order dated 19.12.2001 further reveals that Mr. U. Bhuiyan and Ms. S.D. Bhuiyan were the Advocates for the Respondent. There is, therefore, no manner of doubt that an affidavit had been filed on behalf of the Respondent then on record representing the interest of the corporation. 16. A plain reading of the order dated 19.12.2001 extracted hereinabove would clearly demonstrate that the Petitioner's entitlements as referred to in the affidavit were quantified to be of Rs. 5,40,600/- out of which an amount of Rs. 87,999/- had till then been paid. It is, therefore, wholly incorrect that no affidavit on behalf of the earlier impleaded Respondent's had been filed in the case. Untraceability of the records has provided a disquieting feature to the issue. 17. 5,40,600/- out of which an amount of Rs. 87,999/- had till then been paid. It is, therefore, wholly incorrect that no affidavit on behalf of the earlier impleaded Respondent's had been filed in the case. Untraceability of the records has provided a disquieting feature to the issue. 17. The official records of the Corporation disclose that it was aware of the Petitioner's claim of Rs. 4,52,601/- (Rs. 5,40,600/- Rs. 87,999/-) as well as the orders dated 6.9.1999 and 19.12.2001 of this Court orders. The note dated 19.04.2002 indicates that the Petitioner's said claim was not acceded to for payment. The note dated 09.05.2002 discloses a fresh computation suggesting that an amount of Rs. 30,012/- with interest was only due to the Petitioner. The calculations as set out in the note dated 08.10.2003, however, indicate that an amount of Rs. 40,000/- only was payable to the Petitioner. Though it refers to a draft parawise reply drawn up for the instant proceeding, ignorance has been expressed therein about actual filing thereof. The draft parawise reply available on records only highlights the financial stringency of the Corporation contributing to the delay in releasing the Petitioner's entitlements. It would thus be obvious from hereinabove that the calculations to outline the Petitioner's entitlement, according to the Corporation, had been resorted to after the order dated 19.12.2001. Significantly, though the concerned authorities of the Corporation were aware of the order dated 19.12.2001 referring to an affidavit filed in the instant case on its behalf computing the Petitioner's entitlement at Rs. 5,40,640/-, there is no semblance of reservation above such affidavit far less any denial of the submission thereof in this Court. To reiterate, till this stage, inspite of repeated reference to the order dated 19.12.2001 by Mr. Rajbhuiyan to underline the Corporation's admission of the Petitioner's entitlements, no counter has been filed to challenge the factum of filing of such affidavit. To the contrary, the records of this Court unerringly confirm that the affidavit referred to in the order dated 19.12.2001 had in fact been filed by the then Respondent on record. 18. As it is an order of a Court of law is construed to be sacrosanct and the facts narrated therein correct unless proved otherwise. To the contrary, the records of this Court unerringly confirm that the affidavit referred to in the order dated 19.12.2001 had in fact been filed by the then Respondent on record. 18. As it is an order of a Court of law is construed to be sacrosanct and the facts narrated therein correct unless proved otherwise. Such an order would remain binding in its form and substance on the parties to the related proceeding unless reviewed by the Court passing it or interfered with by any higher forum. This order dated 19.12.2001 has neither been made the subject matter of review nor has been assailed in appeal. It has, therefore, become final and conclusive. 19. I have therefore no manner of hesitation to hold that before the present incumbent of the office of the Managing Director of the corporation had filed his affidavit limiting the Petitioner's dues to Rs. 1,36,081/- as alluded hereinabove, another affidavit had been filed on behalf of the holder of the same office admitting it to be Rs. 5,40,600/- which had been duly taken note of by this Court in the order dated 19.12.2001. Axiomatically, therefore, the pleaded stand in the subsequent affidavit filed by Mr. Pabitra Kumar Kalita is a digression from the said admission, which on a consideration of the facts and circumstances of the case in their entirety appears to be deliberate to mislead this Court and the wart the course of administration of justice. No other conclusion is plausible on a cumulative estimate of the materials on records. 20. The Apex Court in Ram Autar Shukla v. Arvind Sukla, (1995) Supp 2 SCC 130 while dilating on the scope and purpose of the law of Contempt and the essentiality of evidence to establish a contemptuous conduct warranting punishment thereunder held in the following terms. Any interference in the course of justice, any obstruction caused in the path of those seeking justice are an affront to the majesty of law and, therefore, the conduct is punishable as contempt of Court. Law of contempt is only one of the many ways in which the due process of law is prevented from being perverted, hindered or thwarted to further the cause of justice. Due course of justice means not only any particular proceeding but broad stream of administration of justice.... Law of contempt is only one of the many ways in which the due process of law is prevented from being perverted, hindered or thwarted to further the cause of justice. Due course of justice means not only any particular proceeding but broad stream of administration of justice.... If the act complained of substantially interferes with or tends to interfere with the broad stream of administration of justice, it would be punishable under the Act. If the act complaint of undermines the prestige of the Court or cause hindrances in the discharge of due course of justice or tends to obstruct the course of justice or interfered with due course of justice, it is sufficient that the conduct complaint of, constitutes contempt of court and liable to be dealt with in accordance with the Act. It has become increasingly a tendency on the part of the parties either to produce fabricated evidence as a part of the pleadings or record or to fabricate the Court record itself for retarding or obstructing the course of justice or judicial proceedings to gain unfair advantage in the judicial process. This tendency to obstruct the due course of justice or tendency to undermine the dignity of the Court needs to be severely dealt with to deter the persons having similar proclivity to resort to such acts or conduct. In an appropriate case, the mens rea may not be clear or may obscured but if the act or conduct tends to undermine the dignity of the Court or prejudice the party or impedes or hinders that due course of judicial proceedings or administration of justice, it would amount to contempt of the Court. 21. While reiterating the above view in Bank of India v. Vijay Transport and Ors. (2000) 8 SCC 512 , the Apex Court ruled that though the jurisdiction exercised in cases of alleged contempt is quasi criminal and the Court must be satisfied on the material before it that Contempt of Court had in fact been committed such a satisfaction may be derived from the circumstances of the case. 22. The facts and materials on record in my considered opinion unmistakably display a deliberate attempt on the part of the Respondent to disobey the order dated 06.09.1999 passed in CR 4056/98 inasmuch as the Petitioner has been sought to be denied the admitted amount of Rs. 22. The facts and materials on record in my considered opinion unmistakably display a deliberate attempt on the part of the Respondent to disobey the order dated 06.09.1999 passed in CR 4056/98 inasmuch as the Petitioner has been sought to be denied the admitted amount of Rs. 5,40,640/- computed in terms thereof and scripted in the affidavit earlier filed before this Court by the Respondent then impleaded in the proceeding. In the above view of the matter, it is not possible to deduce that the earlier incumbents in the office had demonstrated a disposition expressing willful and conscious disobedience of the order of this Court. This benefit of doubt, however, is not extendable to the present Respondent who with all his responsibility has filed the affidavit denying the Petitioner's claim for Rs. 5,40,640/- 23. The Respondent's conduct is an outright affront to the dignity and majesty of this Court. There has been a conscious. 24. Having regard to the gravity of the act constituting the contempt, in my judgment a sentence of fine only will not meet the ends of justice. To sustain the faith and confidence of the public in the justice dispensation system, it is therefore an impelling necessity to impose an appropriate sentence of imprisonment on the Respondent as permissible in law. In my assessment, an order for detention of the Respondent in civil prison for a period of seven days would meet the exigencies of the situation. Ordered accordingly. The petition is, therefore, closed in the above terms. The Registry would take necessary steps in law to ensure that the order is implemented.