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2007 DIGILAW 826 (GAU)

Kali Bogo v. Tabom Bam

2007-12-18

BROJENDRA PRASAD KATAKEY, J.CHELAMESWAR

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JUDGMENT B.P. Katakey, J. 1. The applicants, who are the appellants in Writ Appeal No. 272/2007, filed the present application under Section 12 of the Contempt of Courts Act, 1971 (for short the 'Act') read with Article 215 of the Constitution of India for initiating the proceeding against the respondents under the provisions of the Act alleging wilful disobedience of the order dated 25.6.2007 passed in the aforesaid writ appeal. 2. The applicants as writ petitioners filed WP(C) No. 367 (AP)/2006 questioning the legality and validity of the orders of appointment dated 10.7.2006 issued by the Secretary, Social Welfare and Child Development Department, Govt. of Arunachal Pradesh appointing the respondents in the said writ petition, which was disposed of by the learned single Judge vide judgment and order dated 1.6.2007 refusing to interfere with the impugned appointment orders in exercise of the power conferred under Article 226 of the Constitution of India, however, directing the respondent authorities to take steps for making requirement to the posts in accordance with the Rules as well as in compliance with the requirement of constitutional scheme of public employment, as expeditiously as possible preferably within a period of two months from the date of receipt of a copy of the order. 3. Being aggrieved, the applicants preferred the aforesaid writ appeal, which was admitted vide order dated 25.6.2007. An interim direction as prayed for was also passed on 25.6.2007. The applicants, thereafter, filed the present application seeking initiation of the contempt proceeding against the respondents herein, namely; the persons holding the office of the Chief Secretary; Secretary, Department of Social Welfare and Child Development and the Director of the said department, under the provisions of the Act alleging that though the certified copies of the order, dated 25.6.2007 passed in the writ appeal were submitted to the respondents herein on 4.7.2007 they did not comply with the interim direction issued by this Court by not suspending the orders of appointment dated 10.7.2006 issued in favour of the private respondents in the appeal. It has further been alleged that the interim direction issued by this Court has been deliberately and wilfully disobeyed by the respondents herein. 4. Notices being issued, the respondents showed causes by filing two affidavits, one by the respondent Nos. It has further been alleged that the interim direction issued by this Court has been deliberately and wilfully disobeyed by the respondents herein. 4. Notices being issued, the respondents showed causes by filing two affidavits, one by the respondent Nos. 1 and 3 and the other by respondent No. 2 taking the stand that there was no wilful or deliberate disobedience of the interim direction issued by this Court and in fact such interim direction has been complied with by issuing the order dated 30.10.2007, whereby the services of the private respondents in the appeal have been suspended except one respondent who had in the meantime resigned from service. According to respondents, the delay in compliance with the interim direction passed by this Court on 25.6.2007 was due to the fact that the copy of the memo of writ appeal filed by the present applicants was not made available along with the copy of the order dated 25.6.2007 containing the interim direction and because of non availability of the copy of such memo of appeal it could not immediately be ascertained what was the interim direction issued on 25.6.2007. The further stand in the affidavits is that after receiving the copy of the memo of appeal filed in the writ appeal, the advice and opinion from the concerned department as well as from the learned Advocate General were obtained and on receipt of the same, ultimately vide order dated 30.10.2007, the orders of appointment dated 10.7.2006 has been suspended. The respondents in their affidavits have also tendered their unqualified and unconditional apology for the delay in implementing the interim direction issued by this Court, in view of the aforesaid reasons. 5. We have heard Mr. K.N. Choudhury, learned senior counsel for the applicants and also Mr. N. Dutta, the learned Advocate General appearing on behalf of the respondents. 6. Mr. Choudhury, learned senior counsel for the applicants, has submitted that the respondents having received the interim direction contained in the order dated 25.6.2007 ought to have implemented such interim direction passed by suspending the orders of appointment dated 10.7.2006 and having not done so, the subsequent implementation of the interim direction vide order dated 30.10.2007 would not absolve the respondents from the commission of contempt under the provision of the Act as they have wilfully and deliberately avoided compliance of the interim direction. 7. Mr. 7. Mr. Dutta, learned Advocate General on the other hand referring to the records produced before this Court as well as the stand taken in the affidavits filed by the respondents has submitted that there was no wilful or deliberate violation of the interim direction issued by this Court vide order dated 25.6.2007 though there was some delay in implementation of the interim direction. According to the learned Advocate General such delay was due to communication from one department to other seeking advice. It has further been submitted that it was never the intention of the respondents not to comply with the interim direction issued by this Court. That apart, the respondents in the affidavits having tendered their unconditional and unqualified apology for the delay caused in implementing the interim direction, the proceeding under the provisions of the Act may not be initiated, submitted by the learned Advocate General. 8. This Court while admitting the writ appeal on 25.6.2007 also passed the order-- "Interim directions as prayed for". From the records produced before this Court, it appears that the copy of the memo filed in the writ appeal was served on the respondents on 24.9.2007. The file was thereafter processed from one department to another, to the concerned Ministry as well as to the learned Advocate General seeking clarification or opinion. Ultimately the Secretary, Social Welfare and Child Development Department by issuing the order dated 30.10.2007 has complied with the interim direction contained in the order dated 25.6.2007 passed in the aforesaid writ appeal. No doubt there is some amount of delay in implementing the interim direction passed by this Court because of, what may be called, 'bureaucratic red-tapism'. This case is an instance of slow march of bureaucratic movement, as lamented by Lord Curzon, respecting the administration at his time, which still exists today. [State of Kerala v. Kumari T.P. Roshana AIR 1979 SC 765 ]. 9. Be that as it may, the delay in implementation of the Court's direction always may not be wilful or deliberate so as to invite the action under the provisions of the Act. 10. Section 2(a) of the Act defines 'contempt of court' as civil contempt or criminal contempt. Clause 2(b) defines 'civil contempt' as wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. 11. 10. Section 2(a) of the Act defines 'contempt of court' as civil contempt or criminal contempt. Clause 2(b) defines 'civil contempt' as wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. 11. To constitute 'civil contempt' within the meaning of the Act and to proceed against any person for contempt of court, the element of wilful or deliberate disobedience of the judgment/order etc., is to be proved. The disobedience, if it is not wilful or deliberate may not constitute 'civil contempt' within the meaning of the Act. The proceeding under the extra ordinary jurisdiction of the court in terms of the provision of the Act is quasi judicial and as such the standard of proof required is that of criminal proceeding and the breach shall have to be established beyond reasonable doubt. 12. Section 13 of the Act further imposes a restriction on the court to impose sentence under the Act for contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes or tends substantially to interfere with the due course of justice. The power to punish for contempt is to be resorted when there is wilful or deliberate violation or disobedience of the court's order and whether disobedience is wilful or deliberate in a particular case depends on the facts and circumstances of that case. 13. The word 'wilful' according to the Black s Law Dictionary means: Proceeding from a conscious motion of the will; voluntary. Intending the result which actually comes to pass; designed; intentional; not accidental or involuntary. The meaning of the word 'wilful' as given in Webster's Comprehensive Dictionary, 2003 Edition, is: Bent on having one's own way; headstrong; self-willed. Resulting from the exercise of one's own will; voluntary; intentional. 14. Therefore, to constitute wilful act it has to be voluntary or intentional. An unintentional or accidental or involuntary act cannot be termed as wilful. The meaning of the word 'wilful' as given in Webster's Comprehensive Dictionary, 2003 Edition, is: Bent on having one's own way; headstrong; self-willed. Resulting from the exercise of one's own will; voluntary; intentional. 14. Therefore, to constitute wilful act it has to be voluntary or intentional. An unintentional or accidental or involuntary act cannot be termed as wilful. In the instant case, it appears from the stand taken in the affidavits filed by the respondents as well as from the records produced before this Court that there was no intention on the part of the respondents to violate and/or disobey the court's order though there was some delay because of the slow march of bureaucratic movement, which by itself would not constitute wilful disobedience or violation of this Court's order so as to proceed against the respondents under the provision of the Act. Moreover, the interim direction passed by this Court has been complied with as noticed above. 15. In view of the aforesaid discussions, we are of the opinion that no contempt has been committed by the respondents so as to proceed against them under the provision of the Act. The contempt petition is, therefore, dismissed. No cost. Petition dismissed.