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2016 DIGILAW 593 (CAL)

Jadab Ghosh v. Dipak Ranjan Monadal

2016-08-02

DEBANGSU BASAK

body2016
JUDGMENT : DEBANGSU BASAK, J. 1. The petitioner has complained of violation of the Order dated March 12, 2014 passed in W.P. No. 5928 (W) of 2014 (Jodab Ghosh v. The State of West Bengal & Ors.). 2. The contempt petition was moved on June 27, 2014 when the learned Advocate for the petitioner had submitted that, the Order dated March 12, 2014 has not been complied with. A Rule of contempt was issued on July 21, 2014. By an Order dated September 1, 2014 directions for filing affidavits were given. On February 19, 2015 leave was granted to correct the cause title by inserting the name of the new incumbent and to serve the contempt application upon the new incumbent afresh. A contempt Rule was issued on March 27, 2015 against the new incumbent. On May 8, 2015 the alleged contemnor was present. Time to submit a reply to the show-cause was granted upon payment of costs. The reply to the show-cause has since been filed. Costs have also been paid. The contempt Rules have been issued in this proceedings. Upon the learned Judge issuing the Contempt Rules retiring, the contempt petition had appeared in my list in accordance with the determination in respect of the subject matter. 3. When the contempt petition was taken up for hearing by me, none had appeared for the petitioner. I had requested the learned Advocate for the alleged contemnor to inform the learned Advocate of the petitioner. Subsequent thereto, the learned Advocate for the petitioner had appeared. On the first day of his appearance before me, he had submitted that, the contempt petition may be disposed of as the petitioner is not seeking any further relief. The learned Advocate for the alleged contemnor had opposed the prayer for disposal on the ground that the petitioner had acted malafide and obtained orders from the Courts by suppression of material facts. He had brought to my notice the fact that, the Order dated March 12, 2014 stood complied with prior to the issuance of the contempt Rule on March 27, 2015. 4. In view of such contention on behalf of the parties, I had given an opportunity to the petitioner to file an affidavit. Such affidavit has been filed which may be kept with the record. 5. 4. In view of such contention on behalf of the parties, I had given an opportunity to the petitioner to file an affidavit. Such affidavit has been filed which may be kept with the record. 5. Learned Senior Advocate for the petitioner has contended that, the right of a citizen of India to approach the Court is a fundamental right. A person may come with a frivolous case to Court. A litigant’s contention may or may not be accepted by the Court. The fact that, a case canvassed by a litigant is not accepted by a Court does not mean that, the litigant is guilty of misleading the Court. He should not be penalized for approaching a Court of law. In support of such contention learned Senior Advocate that the petitioner has relied upon All India Reporter 2006 Supreme Court page 661 (M/s. Tashi Delek Gaming Solutions Ltd. & Anr. v. State of Karnataka & Ors.). 6. Learned Senior Advocate for the petitioner has submitted that, the petitioner was working at a different school. He was entitled to the relief as granted by the Order dated March 12, 2014. Since the alleged contemnor did not act in terms of the Order dated March 12, 2014, the petition of contempt was filed. Subsequent to the filing of the petition, the learned Judge considering the petition had found it necessary to pass the Order dated March 27, 2015 by which the Court had not only issued the Rule of contempt but also imposed costs. The petitioner had no part to play therein. The petitioner cannot be faulted for an action taken by the Court. 7. Learned Advocate for the petitioner has submitted that, the petitioner did not derive any benefit out of the issuance of the Rule of contempt or the direction for the payment of costs as contained in the Order dated March 27, 2015. He has submitted that, the payment was directed be made to a public trust. The petitioner did not get any financial benefit out of the order. 8. Learned Advocate for the alleged contemnor has relied upon the Order dated March 12, 2014. He has submitted that, the payment was directed be made to a public trust. The petitioner did not get any financial benefit out of the order. 8. Learned Advocate for the alleged contemnor has relied upon the Order dated March 12, 2014. He has submitted that, the directions contained in the Order dated March 12, 2014 were complied with by the authorities and that, compliance thereof was within the knowledge of both the petitioner and his Advocate as would appear from the writing dated July 3, 2014. The writing dated July 3, 2014 was received by the Advocate for the petitioner on July 7, 2014 and by the petitioner himself on July 8, 2014. Despite receipt of such compliance, in writing, the petitioner had proceeded with the contempt petition and had invited the Court to issue the Rule of contempt on the submission that the Order dated March 12, 2014 remained un-complied with. He has submitted that, in the facts of this case and given the conduct of the petitioner, the petitioner should be dealt with appropriately. 9. I have considered the rival contentions of the parties and the materials made available on record. 10. The petitioner has filed the contempt petition complaining of violation of the Order dated March 12, 2014 passed in W.P. No. 5928 (W) of 2014. By such order the following directions were given which are as follows:- “…………………………….In my view, the writ petitioner is similarly situated like four other part-time teachers. Since other candidates were granted approval the writ petitioner ought to have been treated similarly. Accordingly, I direct the concerned D.P.I. to give approval to the writ petitioner since four other part-time teachers were approved by Memo No. 493 PTT dated 20th December, 2011. The entire exercise should be completed within six weeks from date of communication of this order. ………………………….” 11. The Order dated March 12, 2014, therefore, had required the Director of Public Instruction to give approval to the petitioner within six weeks from the date of communication of this order. It appears that, the Director of Public Instruction had placed a note-sheet dated June 23, 2014 with the Joint Secretary of the Government of West Bengal seeking the approval. 12. The Joint Secretary through the writing dated July 3, 2014 had granted approval to the petitioner in compliance with the Order dated March 12, 2014. It appears that, the Director of Public Instruction had placed a note-sheet dated June 23, 2014 with the Joint Secretary of the Government of West Bengal seeking the approval. 12. The Joint Secretary through the writing dated July 3, 2014 had granted approval to the petitioner in compliance with the Order dated March 12, 2014. A copy of this writing was sent to both the Advocate for the petitioner as well as to the petitioner himself. The Advocate for the petitioner had received the writing dated July 3, 2014 on July 7, 2014 and the petitioner himself has received it on July 10, 2014. These facts appear from the endorsement on the face of the writing dated July 3, 2014. The factum of the writing dated July 3, 2014 and the compliance of the order was not brought to the notice of the Court on July 21, 2014 when the contempt Rule was issued. It was not brought to the notice of the Court on September 1, 2014 when the alleged contemnor had appeared. The person then made party in contempt petition was not the Director of Public Instruction at that point of time. The petitioner had continued to suppress the relevant facts and had obtained an order for substitution of the alleged contemnor with the new incumbent on February 9, 2015. The petitioner went on to suppress the same facts on March 27, 2015 when the petitioner had obtained a Rule against the new incumbent at the post. 13. In M/s. Tashi Delek Gaming Solutions Ltd. & Anr. (supra) the Supreme Court has held that, a person must have access to justice if his right is in any manner, whether to carry on business or threat to his liberty is infringed. Access to justice is a human right. 14. Right comes with a corresponding obligation. It is not the law that, a person in the guise of canvassing his right comes to Court, suppresses material facts from the Court, persuades the Court to pass orders on the basis of facts known to the person concerned to be false and then say that, the Court has passed the order and that, the petitioner did not benefit out of the order passed by the Court and, therefore, the petitioner is no way responsible for the prejudice or damages if any, caused by the order of the Court so passed. It is the bounden duty of a litigant to approaching a Court that, he must come with clean hands. He must not suppress any material fact from the Court. There is an underlining undertaking given by a litigant to a Court when such litigant obtains an ex parte order that, the facts scenario stated by the petitioner in the application are correct and that, he has not suppressed any material facts. In the instant case the contempt Rule was issued ex parte. The petitioner had persisted with the contempt petition and had the incumbent substituted, knowing fully well at that time, that by the writing dated July 3, 2014 his grievances have been taken care of. In course of hearing of the contempt petition, the petitioner has not placed any material subsequent to July 3, 2014 which suggests that the grievances of the petitioner were taken care of subsequent to the issuance of the Rule of contempt. 15. In such circumstances, the petitioner is guilty on misutilizing the contempt jurisdiction of this Hon’ble Court. A contempt jurisdiction ought to be used as sparingly and as cautiously as possible. The petitioner has, however, persuaded the Court to invoke the contempt jurisdiction on the basis of facts scenario known to the petitioner as wrong. The petitioner had aggravated the scenario by persisting with the contempt petition and having the original respondent replaced with the new incumbent and a fresh Rule to be issued against the new incumbent. The petitioner had not shown any remorse at the final hearing of the contempt petition. He has not filed any affidavit accepting his guilt unconditionally and seeking an unconditional apology. The affidavit allowed to be filed does not contain an unconditional apology. These kinds of persons are required to be dealt with so as to uphold the dignity and majesty of Courts of law and to send a message that such a conduct is wholly unacceptable. 16. The petitioner is a teacher. The society would do well not to have a person as a teacher who is not truthful to the Court and who comes with unclean hands and suppresses material facts in the proceedings initiated by him. Such a person would be incapable of imparting the requisite level of education which a student requires for building his character. The wrong doings of the petitioner is inexcusable. Such a person would be incapable of imparting the requisite level of education which a student requires for building his character. The wrong doings of the petitioner is inexcusable. The wrong doings are in relation to his service and reflects upon his character in the discharge of his duties in service. In such circumstances, the authorities will be at liberty to initiate appropriate disciplinary proceedings against the petitioner for making false and incorrect statements known to him to be false as also misleading this Hon’ble Court in issuing the Rule of contempt twice and otherwise proceeding with the contempt petition. The petitioner will also pay costs assessed at Rs.2,00,000/- to the West Bengal Legal Aid Services Authority, Kolkata within two weeks from date. In the event the receipt of such payment is not produced before the authorities within two weeks from date, the authorities will deduct such sum of costs from the remunerations or emoluments receivable by the petitioner and make over the amounts deducted to the West Bengal Legal Aid Society, Kolkata. In the event, the remuneration and/or emoluments receivable by the petitioner is not sufficient, the authorities will inform the District Magistrate of the locality where the petitioner has his permanent residence with a request to such District Magistrate to initiate proceedings for recovery of costs and payment thereof to the West Bengal Legal Aid Services Authority, Kolkata as arrears of land revenue from the petitioner. The District Magistrate concerned on receipt of such authorities will proceed to initiate proceedings for recovery of costs from the petitioner treating it as arrears of land revenue. 17. The Rule issued in the proceedings is discharged. W.P.C.R.C. No. 339 of 2014 is disposed of with the directions aforesaid. 18. Urgent certified website copy of this order, if applied for, be given to the parties on priority basis.