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2009 DIGILAW 175 (CAL)

Tapasi Patra v. Sonali Sadhukhan

2009-03-04

SOUMITRA PAL

body2009
Judgment :- (1) This contempt application was filed by the petitioner alleging violation of the directions contained in the order dated 9th June, 2006 passed in W. P. No. 13459(W) of 2006, (for short the said order) Tapasi Patra v. State of West Bengal and Ors., by Sonali Sadhukhan, the Headmistress, Ramnagar Vidyasagar Balika Vidyalaya directing her to allow the petitioner along with other eligible candidates to appear at the interview to be held on 14th June, 2006 to the post of peon in Ramnagar Vidyasagar Balika Vidyalaya if found eligible and possessed necessary qualifications and fulfilled other criteria. It has been stated that by letter dated 9th June, 2006 the gist of the said order was communicated to the alleged contemnor who, on 12th June, 2006 under her seal and signature, had accepted the same. It appears from a tetter dated 14th June, 2006, being Annexure- R-3 to the contempt application, that as she was not called for interview, the petitioner had requested her to comply with the directions contained in the order dated 9th June, 2006. The said letter dated 14th June, 2006 was despatched by post and was received by the alleged contemnor on 15th June, 2006. On 15th June, 2006 the petitioner had also informed the District Inspector of Schools (Secondary Education) Hooghly and the Additional District Inspector of Schools (Secondary Education) Chandannagore regarding the fact of the non-compliance of the order by the alleged contemnor and were informed about the contempt application being moved before the High Court. (2) Thereafter, the Contempt Application was moved on 27th February, 2007. Rule was issued, which was made returnable on 12th March, 2007. On 12th March, 2007 the alleged contemnor appeared. Directions for filing of affidavits were issued. Affidavits have since been filed and are on record. (3) Mr. Biswaroop Bhattacharya, learned Advocate appearing on behalf of the alleged contemnor submitted that in order to constitute contempt there should be deliberate and wilful disobedience. From the chain of events or from the totality of facts it is evident that there was no wilful disobedience. Since Managing Committee is the competent body for recruitment of non-teaching staff she on 12th June, 2006 informed the Secretary of the Managing Committee of the school about the order passed on 9th June, 2006 by the High Court and had requested him to allow the petitioner to participate in the interview. Since Managing Committee is the competent body for recruitment of non-teaching staff she on 12th June, 2006 informed the Secretary of the Managing Committee of the school about the order passed on 9th June, 2006 by the High Court and had requested him to allow the petitioner to participate in the interview. Had intention been otherwise she would not have brought it to the notice of the Secretary. Evidently it meant no disrespect or defiance of the order. Moreover, even on 14th June, 2006, that is on the day of interview, the fact regarding wilful disobedience was not brought to her notice. Thus, as disobedience, if any, was not wilful and deliberate which should be the basis of committing contempt, the contempt application is without merit. Learned Advocate for the alleged contemnor relied on the judgment of the Supreme Court in Anil Ratan Sarkar v. Hirak Ghosh and Ors., reported in AIR 2002 SC 1405 in support of his submission. (4) Mr. Asish Sanyal, learned Advocate appearing on behalf of the petitioner submitted that the alleged contemnor was directed to allow the petitioner along with ail other eligible candidates to appear in the interview to be held on 14th June, 2006. The order was communicated and was received by the alleged contemnor personally on 12th June, 2006. Therefore, the obligation of the alleged contemnor was to allow the petitioner to appear in the interview. However, though she understood the order she has tried to shift the obligation either by stating that she had immediately informed the Secretary of the Managing Committee of the Institution as the Managing Committee is the sole authority regarding appointment or by stating she was not empowered to issue call letters. According to him excuses are frivolous. It is evident from the conduct of the alleged contemnor that the order passed was frustrated by her action. Assuming the statements made in the affidavit filed by the alleged contemnor are correct, the alleged contemnor did not take any action and kept silent when the Secretary failed to act. Since application was neither filed for recalling the order dated 9th June, 2006 nor appeal was preferred and thus the order had attended finality, the alleged contemnor cannot traverse beyond the order and question it. Reliance was placed on the judgments of the Apex Court in Union of India and Ors. Since application was neither filed for recalling the order dated 9th June, 2006 nor appeal was preferred and thus the order had attended finality, the alleged contemnor cannot traverse beyond the order and question it. Reliance was placed on the judgments of the Apex Court in Union of India and Ors. v. Subedar Devassy PV, reported in AIR 2006 SC 909 and in Commissioner, Karnataka Housing Board v. C. Muddaiah, reported in 2007 (7) SCC 689 in support of his submission. (5) In order to constitute contempt of an order passed, disobedience or breach must be wilful and deliberate. Therefore, the conduct of the alleged contemnor and the defence taken in the affidavit-in-opposition (for short the said affidavit) is of great significance. In this regard the submissions in Paragraph-4 and sub-paragraphs (a) (b) and (c) of the said affidavit may be noted;- "4(a) The applicant/writ petitioner (hereinafter referred to as the said petitioner) had preferred the instant writ application being W.P. No. 13459 (W) of 2006, inter alia, assailing the action of Ramnagar Vidyasagar Balika Vidyalaya (hereinafter referred to as the said School) in not permitting the petitioner to appear in the selection test and interview held for the post of Peon. In the writ application the petitioner had made me Contesting respondent No.3 in my capacity as the Headmistress of the said School though I have practically very little role to play in the matter of selection of non-teaching staff. It is the Managing Committee of the said School which has the sole power to appoint non-teaching employees on permanent or temporary basis against permanent or temporary vacancies. Thus in such a base I have practically very little role to play except for the fact that by virtue of my post I am the ex-officio member of the Managing Committee in terms of Rule 6 of the Management Rules, 1969. In this connection I also say that by dint of my post I was also a part of the Selection Committee constituted for the purpose of selection. I respectfully say that my role in the matter of selection is merely incidental and it is the Managing Committee and the Secretary thereof who has the most important role to play. In this connection I also say that by dint of my post I was also a part of the Selection Committee constituted for the purpose of selection. I respectfully say that my role in the matter of selection is merely incidental and it is the Managing Committee and the Secretary thereof who has the most important role to play. Having regard thereto the Managing Committee of the said School represented by its Secretary ought to have been made parties to the writ application since they are very much necessary parties to the same. The writ application on that ground alone ought not to have been entertained. By non-impleadment of the Managing Committee of the said School as well the Secretary thereof the writ application suffered from non-joinder of necessary parties, (b) However, I say that I was informed of the order dated 9.6.06 passed by the Honble High Court at Calcutta on 12.6.06 through a letter of the petitioners learned Advocate which was dated 9.6.06. Since the selection was to take place on 14.6.06 I had immediately informed the Secretary of the Managing Committee of the said School about the letter written to me by the petitioners learned Advocate informing me about the order passed by the Honble High Court. The Secretary of the Managing Committee of the said School had received the letter written to me by the petitioners learned Advocate from me on 12.6.06 itself. Now as stated since I had very little role to play in the matter of selection I refrained from pursuing with the matter since I felt that the Secretary of the Managing Committee would be in a position to deal with the matter more effectively. However, I say that the Secretary was not a party to the proceedings and the petitioner or her learned Advocate did not furnish any certified copy of the order upon me at the material point of time. I further say that I had absolutely no intention of not permitting any one, farless to speak of the petitioner from participating in the selection. However, as stated I once again maintain that I am not empowered by law to issue call letters to any candidate who is eager to participate in the selection process and the same is within the exclusive domain of the Secretary of the Managing Committee and the Managing Committee itself. However, as stated I once again maintain that I am not empowered by law to issue call letters to any candidate who is eager to participate in the selection process and the same is within the exclusive domain of the Secretary of the Managing Committee and the Managing Committee itself. (c) Therefore, I say that what ever has happened in the instant case is owing to the failure of the petitioner to impleading the Managing Committee and its Secretary as respondents I have never, wilfully and/or deliberately sought to violate the order passed by this Honble Court and had done whatever was incumbent upon me having regard to the exigency of the situation and urgency of the matter. Hence, the instant proceeding for contempt initiated against me may kindly be dropped and I may be honourably exonerated." (Emphasis supplied) (6) The stand taken by the alleged contemnor in the affidavit is that as the Managing Committee has the sole power to appoint non-teaching staff and she has little role to play, she had immediatey informed the Secretary of the Managing Committee about the order dated 12th June, 2008. Moreover, under the law she is not empowered to issue call letters to any candidate to participate in the selection process. Whatever role she has under the Management Rules, 1969 is incidental. Thus as she had immediately informed the Secretary of the Institution about the directions contained in the order and as the order has no sanctity of law, there was no deliberate and wilful violation and the conduct cannot be called as contumacious. It is to be noted that neither any application was filed by the alleged contemnor for recall of the order dated 9th June, 2006 nor any appeal was filed assailing its correctness. Therefore, the order has received finality. The question is can the alleged contemnor still question the order. The law laid down in Union of India and Ors. v. Subedar Devassy PV (supra) provides the answer. The relevant paragraph of the said judgment is as under:-"While dealing with an application for contempt, the Court is really concerned with the question whether the earlier decision which has received its finality had been complied with or not. The law laid down in Union of India and Ors. v. Subedar Devassy PV (supra) provides the answer. The relevant paragraph of the said judgment is as under:-"While dealing with an application for contempt, the Court is really concerned with the question whether the earlier decision which has received its finality had been complied with or not. It would not be permissible for a Court to examine the correctness of the earlier decision which had not been assailed and to take a view different from what was taken in the earlier decision." (Paragraph-2) In the said judgment the law laid down in T.R. Dhananjaya v. J. Vasudevan, 1995 (5) SCC 619 on the question of impossibility to carry out the direction has been summarised as under:-"It was held that when the claim inter se had been adjudicated and had attained finality, it is not open to the respondent to go behind the orders and truncate the effect thereof by hovering over the rules to get around the result, to legitimise legal alibi to circumvent the order passed by a Court." (Paragraph4). In Paragraph-6 it has been held "If any party concerned is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor feasible, it should always either approach the Court that passed the order or invoke jurisdiction of the appellate Court. Rightness or wrongness of the order cannot be urged in contempt proceedings. Right or wrong, the order has to be obeyed. Flouting an order of the Court would render the party liable for contempt. While dealing with an application for contempt the Court cannot traverse beyond the order, non-compliance with which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible." (7) The same view was reiterated by the Apex Court in Commissioner, Karnataka Housing Board v. C. Muddaiah (supra) wherein it has been held as under:- "We are of the considered opinion that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. The same would be impermissible and indefensible." (7) The same view was reiterated by the Apex Court in Commissioner, Karnataka Housing Board v. C. Muddaiah (supra) wherein it has been held as under:- "We are of the considered opinion that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of law is not complied with or is ignored, there will be an end of the rule of law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected."(Paragraph-32) (8) Therefore, the law is, an order which has attained finality is irresistible. It is a Gospel truth. Since failure to carry out such order would amount to hindering administration of justice and undermining the dignity of the Court, its observance in letter and spirit is a must. In my view, taking shelter under the Management Rules for justifying noncompliance of the directions contained in the order dated 9th June, 2006 instead of applying for recall of the said order regarding the difficulties faced if any, or not challenging the order before the higher forum, is nothing but circumvention. Since the order dated 9th June, 2006 had attained finality, the alleged contemnor can now neither question the legitimacy of the order by referring to the Management Rules nor can raise the issue regarding the maintainability of the writ petition as has been done in paragraph and its sub-paragraphs of the affidavit-in-opposition. As she understood the order, she cannot shift the obligation. As evident from the said affidavit, she failed to act even after the Secretary was unmoved, Thus, the order directing the alleged contemnor to allow the petitioner to appear in the interview got frustrated. As she understood the order, she cannot shift the obligation. As evident from the said affidavit, she failed to act even after the Secretary was unmoved, Thus, the order directing the alleged contemnor to allow the petitioner to appear in the interview got frustrated. Since on the one hand she has tried to shift the obligation and on the other hand in a veiled manner has questioned the legitimacy of the order by referring to the Management Rules and has raised the question about the maintainability of the writ petition, the act of the alleged contemnor cannot be called a "mere disobedience" (Anil Ratan Sarkar (supra) but wilful and deliberate violation of the order. Hence, as the action by the alleged contemnor is deliberate and wilful, Sonali Sadhukhan is, thus, guilty of contempt. Therefore, the Rule is made absolute. (9) Let the matter appear as for orders on 5th March, 2009 when further orders shall be passed in presence of the contemnor who is directed to be present at first sitting of the Court. (10) Urgent photostat certified copy of this judgment and order, if applied for, be furnished to the appearing parties on priority basis. (11) By judgment delivered on 4th March, 2009, Sonali Sadhukhan, Headmistress, Ramnagar Vidyasagar Balika Vidyalaya was held guilty of contempt. The Rule was made absolute. (12) By an order recorded in the said judgment the contemnor was directed to be present on this day, that is, on 5th March, 2009 at the first sitting of the Court. It was recorded that further order shall be passed in presence of the contemnor. Pursuant to the directions contained in the judgment dated 4th March, 2009, Sonali Sadhukhan, the contemnor is present in Court today. She has tendered unqualified apology and has prayed for pardon. She has also reiterated the submissions made in Paragraph-3 of the affidavit-in-opposition where she has prayed for unqualified apology and has prayed for being pardoned. The prayer for unqualified apology and pardon is considered and accepted. The contemnor is pardoned for the act of contempt. However, the petitioner is entitled to costs which is assessed at Rs.2000/-. On instruction it is submitted by the learned Advocate for the contemnor that costs shall be paid to the learned Advocate for the petitioner by 6th March, 2009. The prayer for unqualified apology and pardon is considered and accepted. The contemnor is pardoned for the act of contempt. However, the petitioner is entitled to costs which is assessed at Rs.2000/-. On instruction it is submitted by the learned Advocate for the contemnor that costs shall be paid to the learned Advocate for the petitioner by 6th March, 2009. After costs are deposited with the learned Advocate for the petitioner, he shall transmit the same to the petitioner forthwith. (13) Further appearance of the alleged contemnor is dispensed with. (14) The contempt application is disposed of. The penultimate paragraph of the order dated 5th March, 2009 containing the words "Accordingly, the contempt rule is discharged" has gone down by mistake. This is an apparent mistake since by the order dated 4th March, 2009 Rule was made absolute. Therefore, let the penultimate paragraph containing the words Accordingly, the contempt rule is discharged" be not treated as part of the order dated 5th March, 2009. Let this order be treated as part of the order dated 5th March, 2009.