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2014 DIGILAW 1081 (HP)

Avinash Kumar v. R. K. Mathur

2014-08-13

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT : - Tarlok Singh Chauhan, Judge. The petitioner has approached this Court under Sections 11 and 12 of the Contempt of Courts Act for initiating the contempt proceedings against the respondents for willfully violating the order passed by this Court on 10.04.2014 passed in CWP No. 2383 of 2014, titled Avinash Kumar versus BRO and others. 2. The petitioner in the writ petition had sought the following reliefs:- “i) Mandamus commanding upon the respondents to release the payment to the tune of Rs.9,35,12,259/- crores (Rupees Nine Crore Thirty five lacs Twelve Thousand Two Hundred and Fifty Nine only) on account of work executed in construction of two instrumented Avalanche control structures at KM 5.765 (MSP-07) and KM 7.250 (MSP-10) on the approach Road to South Portal of Rohtang Tunnel under project Deepak near Manali in Himachal Pradesh. ii) Any other appropriate writ, order or direction which this Hon’ble Court may deem fit and proper may kindly be passed in favour of the petitioner as against the respondents.” 3. Along with the writ petition, an application for interim relief being CMP No. 4778 of 2014 was also preferred and came up for consideration before this Court on 10.04.2014 and the following order came to be passed:- “CMP No.4778/2014 This application is disposed of by directing the respondents to consider the case of the petitioner for release of admitted amount if any, within four weeks. Alteration/modification/vacation on motion.” 4. It is alleged by the petitioner that the order passed by this Court was considered by the Director (Contracts) in the Office of Headquarters Chief Engineer, Project Rohtang Tunnel, who vide his communication dated 16.04.2014 requested Headquarters Director, General Border Roads/E8, Seema Sadak Bhawan, New Delhi, for releasing the amount of Rs.7.93 crores and in support of such submissions has annexed copy of communication dated 16.04.2014. However, said payment has been withheld by the Office of Headquarters, Director General, Border Roads, despite clear-cut directions of this Court which amounts to willful and deliberate defiance and non-compliance of the Court directions issued on 10.04.2014. 5. However, said payment has been withheld by the Office of Headquarters, Director General, Border Roads, despite clear-cut directions of this Court which amounts to willful and deliberate defiance and non-compliance of the Court directions issued on 10.04.2014. 5. The respondents have filed reply wherein it has been alleged that the communication dated 16.04.2014 is a part of the sincere endeavour on the part of the department in the direction of complying with the order dated 10.04.2014 in letter and spirit and in this process the department received a communication dated 25.06.2014 from the Central Bureau of Investigation which is investigating the case of the petitioner’s firm calling upon the department not to release the balance payment due to the firms including the firm of the petitioner in various contracts awarded by the Border Road Organization and the same be kept in abeyance pending investigation. 6. The respondents have stated that the Central Bureau of Investigation after conducting preliminary inquiry had registered an FIR bearing No.RC0962014A0001 against the officials of the Deepak Project as also the present petitioner on 22.01.2014 under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Sections 120-B, 420, 468 and 471 of the Indian Penal Code. In the said FIR, the name of the firm of the petitioner M/s Garg and Garg Company of which the petitioner is the proprietor now finds mention. The contents of the FIR revealed that the officials of the project while posted with the Project Deepak BRO, Shimla, entered into criminal conspiracy with M/s Garg and Garg Company, Ropar, through its/their proprietor and in furtherance of the said criminal conspiracy they have shown undue favour to the said Companies/Firms in awarding various contracts on exorbitant rates thereby causing huge pecuniary loss to the government exchequer and corresponding wrongful gain to the contractors i.e. the petitioner. Hence, the award having come under the cloud itself on the aforesaid grounds no payment on the basis of such award does not remain undisputed and, therefore, it is not possible for the respondents to calculate the payment due to the petitioner on account of execution of work of BRO. As a consequence thereof, no amount till final logical conclusion of the investigation by the CBI can be released in favour of the petitioner. As a consequence thereof, no amount till final logical conclusion of the investigation by the CBI can be released in favour of the petitioner. It is further claimed that the respondents have considered the case of the petitioner as follows:- “(i) There are four FIRs registered by CBI namely RC0962014A0001 dt. 22 Jan. 2014, RC09626013A0003 dt. 31 Oct. 2013, and RC0962013A0005 dt. 31 Oct. 2013 all in Shimla area and RC01232013A0001 dt 13 Mar. 2013 in Leh (Jammu & Kashmir) against the petitioner. The offences mentioned by the CBI in the FIR are criminal conspiracy, cheating, forgery, criminal misconduct and obtaining contracts on exorbitant rates thereby causing huge pecuniary loss to the government exchequer and corresponding wrongful gain to the petitioner. (ii) An FIR has been registered against the firm for cheating, forgery in contract works of Border Roads Organization at Leh (J&K) vide RC01232013A0001 dt. 13 Mar. 2013. (iii) In case, the payment to the petitioner is released and CBI files a challan before the competent court of law against the petitioner and the competent court holds the petitioner guilty, it will be difficult to recover any excess payment made to the petitioner as per legal outcome. It is with all sincerity the respondents found that in the circumstances narrated as above and in the preliminary submissions above that no amount which the petitioner is claiming remains undisputed.” 7. Lastly, it is contended that the respondents have made all out efforts to comply with the directions contained in the order dated 10.04.2014 in letter and spirit. 8. The petitioner has filed rejoinder wherein it is alleged that as per the respondents themselves an amount of Rs.7.93 crores is due towards the petitioner. Though the claim is much more than even this amount, but since the respondents themselves admit this amount, they in compliance to the orders of this Court ought to have released the same and cannot take refuge under communication dated 25.06.2014 as there was no occasion for the CBI to have written such a letter to the respondents and even otherwise this letter seems to have been procured by the respondents to circumvent the order dated 10.04.2014 passed by this Court. Insofar as the FIR is concerned, it is claimed that the same is without any basis and discloses no offence against the petitioner. Insofar as the FIR is concerned, it is claimed that the same is without any basis and discloses no offence against the petitioner. The allegation contained in the FIR were earlier enquired into by a high level Court of Inquiry and were found to be without any substance. Apart from this, FIR is subject-matter of challenge in quashing petition and notices have been issued to the respondents and the matter is listed for hearing before this Court. It is further claimed that the FIR was registered as far as back on 31st October, 2013 and even after lapse of nine months, no charge-sheet has been filed which clearly indicates that the CBI had no material or evidence against the petitioner to substantiate the allegations contained in the FIR and, therefore, mere registration of FIR, in such circumstances, cannot be construed to be a legal and valid ground for withholding the legally payable dues of the petitioner. 9. We have heard the learned counsel for the parties and gone through the records of the case. 10. It cannot be disputed that the order passed by a competent Court - interim or final – has to be obeyed without any reservation. If such order is disobeyed or not complied with, the Court may refuse the party violating such order to hear him on merits as held by the Hon’ble Supreme Court in Prestige Lights Ltd. vs. State Bank of India (2007) 8 SCC 449 wherein it has been held as under: “24. An order passed by a competent court – interim or final – has to be obeyed without any reservation. If such order is disobeyed or not complied with, the court may refuse the party violating such order to hear him on merits. We are not unmindful of the situation that refusal to hear a party to the proceeding on merits is a “drastic step” and such a serious penalty should not be imposed on him except in grave and extraordinary situations, but sometimes such an action is needed in the larger interest of justice when a party obtaining interim relief intentionally and deliberately flouts such order by not abiding by the terms and conditions on which a relief is granted by the court in his favour.” 11. This Court vide its order dated 10.4.2014 had directed the respondents to consider the case of the petitioner for release of admitted amount, if any. Therefore, the action of the respondents should reflect intense application of mind keeping in view the letter and spirit of the order passed by this Court. 12. The word “consideration” was examined by the Constitution Bench of the Hon’ble Supreme Court in Kaiser-I-Hind Pvt. Ltd. and another vs. National Textile Corpn. (Maharashtra North) Ltd. and others (2002) 8 SCC 182 wherein it was held as follows: “14. In view of the aforesaid requirements, before obtaining the assent of the President, the State Government has to point out that the law made by the State Legislature is in respect of one of the matters enumerated in the Concurrent List by mentioning entry/entries of the Concurrent List and that it contains provision or provisions repugnant to the law made by Parliament or existing law. Further, the words “reserved for consideration” would definitely indicate that there should be active application of mind by the President to the repugnancy pointed out between the proposed State law and the earlier law made by Parliament and the necessity of having such a law, in the facts and circumstances of the matter, which is repugnant to a law enacted by Parliament prevailing in a State. The word “consideration” would manifest that after careful thinking over and due application of mind regarding the necessity of having State law which is repugnant to the law made by Parliament, the President may grant assent…..” 13. The word “consider” was scrutinized by the Hon’ble Supreme Court in Chairman, Life Insurance Corporation of India and others vs. A. Masilamani (2013) 6 SCC 530 and it was held: “19. The word ‘consider’ is of great significance. The dictionary meaning of the same is, “to think over”, “to regard as”, or “deem to be”. Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order.” 14. In the alleged compliance of the orders of the Court, the respondents have offered the following explanation: “That in reply to the contents of this para, it is humbly submitted that the replying respondents have made all out efforts to comply with the directions contained in order dated 10.4.2014 in letter and spirit and in this process owing to the circumstances narrated above some time has been consumed and the same has only occurred owing to the sincere efforts being put in by the respondents in pursuit of compliance of the directions passed by this Court. Further, CBI vide their letter dated 25.6.2014 directed the department not to release balance amount due to the firms including the firm of the petitioner in various contracts awarded by Border Roads Organization and the same may be kept in abeyance pending investigations.” 15. As per the respondents, the payment of Rs.7.93 crores was due to the petitioner as had been worked out by them and the only explanation offered for withholding the same is that since the CBI vide its letter dated 25.6.2014 directed the department not to release the balance amount due to the firms including the firm of the petitioner in various contracts awarded by the Border Roads Organisation, the same were kept in abeyance pending investigations. 16. This explanation of the respondents on the face of it amounts to sitting in judgment over the orders passed by this Court because on 10.4.2014 the respondents had been specifically directed to consider the case of the petitioner for release of the admitted amount, if any, within four weeks. Such a position in our opinion is contrary to the fundamental principles upon which the judicial system is based. It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. 17. Such a position in our opinion is contrary to the fundamental principles upon which the judicial system is based. It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. 17. The respondents cannot be permitted to frustrate the effect of the order passed by this Court on 10.4.2014. This is clearly contemptuous and reliance can conveniently be placed upon the recent judgment of the Hon’ble Supreme Court in Bihar State Govt. Sec.Scl. Teachers Assn. vs. Ashok Kumar Sinha & Others 2014 AIR SCW 3492 in which case too like in the present one, Rules had been framed in such a manner that it had the effect of frustrating the judgment already passed and the Hon’ble Supreme Court then held: “19. At the outset, we may observe that we are conscious of the limits within which we can undertake the scrutiny of the steps taken by the respondents, in these Contempt proceedings. The Court is supposed to adopt cautionary approach which would mean that if there is a substantial compliance of the directions given in the judgment, this Court is not supposed to go into the nitty gritty of the various measures taken by the Respondents. It is also correct that only if there is willful and contumacious disobedience of the orders, that the Court would take cognizance. Even when there are two equally consistent possibilities open to the Court, case of contempt is not made out. At the same time, it is permissible for the Court to examine as to whether the steps taken to purportedly comply with the directions of the judgment are in furtherance of its compliance or they tend to defeat the very purpose for which the directions were issued. We can certainly go into the issue as to whether the Government took certain steps in order to implement the directions of this Court and thereafter withdrew those measures and whether it amounts to non- implementation. Limited inquiry from the aforesaid perspective, into the provisions of 2014 Rules can also be undertaken to find out as to whether those provisions amount to nullifying the effect of the very merger of BSES with BES. Limited inquiry from the aforesaid perspective, into the provisions of 2014 Rules can also be undertaken to find out as to whether those provisions amount to nullifying the effect of the very merger of BSES with BES. As all these aspects have a direct co-relation with the issue as to whether the directions are implemented or not. We are, thus, of the opinion that this Court can indulge in this limited scrutiny as to whether provisions made in 2014 Rules frustrate the effect of the judgment and attempt is to achieve those results which were the arguments raised by the respondents at the time of hearing of C.A. No. 8226-8227 of 2012 but rejected by this Court. To put it otherwise, we can certainly examine as to whether 2014 Rules are made to implement the judgment or these Rules in effect nullify the result of merger of the two cadres. 32. By placing the erstwhile BSES teachers in teaching sub cadre, are allowed to go upto the position of Principal which is the highest promotional post in their sub cadre. On the other hand BES Officers who are put in administrative sub cadre would continue to control the schools. Moreover, each sub cadre is to have its separate seniority list. It means the combined gradation list is given a go bye and even by bringing BSES in BES, segregation between the two cadres is achieved with these provisions. To our mind the aforesaid provisions of 2014 Rules negate the very effect of merger which was envisaged way back in the year 1977. In spite of succeeding in three rounds of litigation, the petitioners are not only treated as a distinct and separate class with the creation of the aforesaid sub cadre, the benefit which could accrue to them in a combined seniority list, as a result of merger, have been snatched away from them. What was given to these petitioners by the respondents in compliance of the judgment earlier, has now been taken away with the promulgation of 2014 Rules. 33. Lest we may be misunderstood, we make it clear that it is the prerogative of the Government to frame service rules in one or the other manner. What was given to these petitioners by the respondents in compliance of the judgment earlier, has now been taken away with the promulgation of 2014 Rules. 33. Lest we may be misunderstood, we make it clear that it is the prerogative of the Government to frame service rules in one or the other manner. In case provisions contained in those Rules offend the rights of any of the employees, they have an independent right to challenge the same which can be judicially scrutinized by the Courts, applying the settled principles of judicial review. However, if such an exercise is undertaken on the premise that it is done to comply with the directions contained in the judgment and the Court finds that, ex facie, it is not so and on the contrary offends the directions in the judgment, such a move cannot be countenanced. 34. It is also crystal clear and borne from the record that the whole exercise was done to go out of way to help BES Officers. In fact, Mr. Rao even argued on these lines by pointing out that the promotions in BES cadres were made in two stages i.e. upto 31.12.1995 in one stage and from 1.1.1996 till now in the second stage. From 1.1.1996 no promotion was given to BES because it was need based and since the posts were to be identified, only the additional charge was given to them. What is lost sight of, in this entire arguments, is that, the merger is to take effect from 1977 and even Resolution to that effect is passed by the Cabinet. Further once that is done and the combined gradation list issued in the year 2007 was to be necessarily revived, further steps were to be taken from that stage. This Court is not suggesting that those of the petitioners who become senior to their counterparts in BES, should be given automatic promotion to second or third stages which was the apprehension expressed. These officers, as a result of merger and combined gradation list, would take their rightful place and thereafter their career progression would be permissible as per the Rules. For this purpose it was open to the Government to frame the Rules and make provisions laying down eligibility conditions. These officers, as a result of merger and combined gradation list, would take their rightful place and thereafter their career progression would be permissible as per the Rules. For this purpose it was open to the Government to frame the Rules and make provisions laying down eligibility conditions. However, by well crafted technique of creating sub cadres and treating teaching category as dying sub cadre, almost the same result, which was the position before the merger, is achieved. It is obvious that such provisions in 2014 Rules are made with the sole intention to frustrate the effect of the judgment. We have no hesitation to say that this would amount to contempt of the Court.” 18. We may hasten to observe here that in case the respondents faced any difficulty or for any reason were not in a position to comply with the orders passed by this Court, then what prevented them from approaching this Court for seeking alteration, modification of the orders, because liberty had been specifically reserved for this purpose, but despite this, the respondents have conveniently sat in judgment over the order passed by this Court and by doing so, we are prima-facie of the view that the respondents have knowingly, deliberately and willfully disobeyed the orders passed by this Court on 10.4.2014. 19. Accordingly, let show cause notices be issued to the respondents in Form-I of the Contempt of Court (Himachal Pradesh Rules, 1996) calling upon the respondents to show cause why contempt proceedings against them be not initiated for having knowingly, deliberately and willfully violated the orders passed by this Court on 10.4.2014, returnable on 1.9.2014. 20. The learned counsel for the respondents would then request for time for filing an appropriate application before this Court. There is no bar for the respondents in doing so and are they at liberty to do so. Needless to say that the application as and when preferred shall be considered on its own merits.