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2016 DIGILAW 764 (ORI)

Pravash Kumar Sahoo v. S. M. Pattnaik

2016-09-08

B.R.SARANGI, VINEET SARAN

body2016
JUDGMENT : VINEET SARAN, J. Heard Mr. M.S. Panda, learned counsel appearing for the petitioner No.1 along with Mr. D.K. Sahoo, learned counsel for the petitioner No.2 as well as Mr. S.P. Misra, learned Advocate General for the opposite party-contemnors and Miss Deepali Mohapatra, learned counsel for the opposite party No.5 and perused the record. 2. This contempt petition has been filed by Pravash Kumar Sahoo and Haraprasad Rath, praying that contempt proceeding be initiated against the opposite parties- alleged contemnors for violation and non-implementation of the direction contained in the judgment and order dated 09.05.2000 in OJC No.10774 of 1997, and award suitable punishment to all the alleged contemnors. Although the copy of the said judgment has not been filed along with this contempt petition but the same is available with us as the record of OJC No.10774 of 1997 is placed along with this contempt application for consideration. While disposing of the said writ petition (OJC), this Court had given certain directions in paragraph-26 of the judgment, which reads as follows: “26. For the foregoing reasons, we do not find any justification to direct any enquiry or investigation by the C.B.I. into any of the allegations made in the writ petition. However, on the basis of the materials on record, we dispose of these writ applications with the following directions: (i) The State Government will conduct a special audit by an Audit Team constituted by the Accountant General, Orissa into the allegations of unauthorised diversion of D.R.D.A. or peripheral fund, improper expenditure thereof and if any irregularity or illegality or misuse of fund is found to fix responsibility for the same and to take appropriate action. The Chief Secretary of the State will ensure that the said Audit Team is constituted within a period of one month from the date of communication of this order and the said Audit Team submits its report within a period of three months from its constitution. On the basis of the said report, if necessary, the State Government will take prompt follow-up actions. (ii) The State Government will take immediate follow-up actions on the basis of the audit report regarding the irregularities committed by the Zila Swakshara to Samiti to fix responsibility and to take suitable actions against erring officers found to be responsible. On the basis of the said report, if necessary, the State Government will take prompt follow-up actions. (ii) The State Government will take immediate follow-up actions on the basis of the audit report regarding the irregularities committed by the Zila Swakshara to Samiti to fix responsibility and to take suitable actions against erring officers found to be responsible. (iii) The State Government will conduct an enquiry into the allegations regarding expenditure and utilization of the fund raised for conducting Santosh Trophy. Such enquiry is to be completed within six months from the date of communication of this order. (iv) The State Government will obtain a report of the investigation conducted by the Crime Branch of the State Police into the lottery conducted for construction of Jagannath Temple at Angul within a period of one month from the date of communication of this order and take suitable follow-up action promptly. (v) The Crime Branch of the State Police is also directed to take immediate follow-up action, if necessary, on the basis of its investigation into the lottery conducted for construction of Jagannath Temple at Angul.” The aforementioned directions are with regard to conduct of inquiry within the time bound period, on alleged misdeed of the opposite party No.5-Sri P.K. Nayak, I.A.S.. 3. During pendency of the contempt proceeding, an order dated 07.02.2003 was passed, challenging which the opposite party no.5-P.K. Nayak approached the Supreme Court by filing Special Leave to Appeal (Civil) No.10093 of 2003. The said appeal was disposed of by the Apex Court on 25.08.2003 with the following order: “Heard the learned counsel for the parties. Learned counsel appearing on behalf of the State of Orissa submits that within a period of two months from today inquiry as directed by the High Court would be completed. In this view of the matter, this petition is not entertained at this stage and is accordingly disposed of. The High Court to decide the contempt proceedings after the receipt of the inquiry.” In view of the aforesaid order of the Supreme Court, the time limit fixed by this Court in order dated 09.05.2000 in OJC No.10774 of 1997 has been extended for a period of two months w.e.f. 25.08.2003. 4. The High Court to decide the contempt proceedings after the receipt of the inquiry.” In view of the aforesaid order of the Supreme Court, the time limit fixed by this Court in order dated 09.05.2000 in OJC No.10774 of 1997 has been extended for a period of two months w.e.f. 25.08.2003. 4. In compliance of order dated 25.08.2003 of the Supreme Court, the inquiry report (on the departmental proceeding initiated against Sri P.K. Nayak, I.A.S. vide two memorandum dated 30.12.2000 and 27.01.2001) was submitted on 28.08.2003, a copy of which has been placed on record. By the said inquiry report, charges against the opposite party No.5-P.K.Nayak were found to have been substantiated and he was found guilty of negligence in duty. The conclusion of the inquiry report dated 28.08.2003 is extracted hereunder: “Of the seven charges drawn up against Shri Prasant Kumar Nayak in two proceedings, there was only one charge in the first (Memorandum No. 45166, dated 30.12.2000). This charge was fully substantiated. Shri Nayak was found guilty of negligence in duty in purchasing slates worth Rs.2.75 lakh without following the prescribed procedure. Under the second proceedings (Memorandum No. 3288, dated 27.01.2001) there were 6 (six) charges. Among these Charge No.1 was proved in part. Though the charge of misconduct could not be established, he was found guilty of unauthorised action in sanctioning a sum of Rs.4.50 lakh out of IRDP administrative infrastructure and subsidy account in favour of a voluntary organisation without preparation of any plan or programme for resource survey and evaluation studies in Angul district. Charge No.5 was also established, and Sri Nayak was found guilty of diverting Rs.1.00 lakh from MPLADS fund for repair and renovation of the Conference Hall of the district administration. Such expenditure was both irregular and inadmissible. The remaining charges are recommended to be dropped, having regard to the circumstances under which the decisions were taken and the purpose of which the funds have been utilized. In course of inquiry, I had taken utmost care to strike a fine balance between the administrative norms and the ground realities. Considering all the key elements which constitute good governance in the district, I am led to believe that Shri Nayak crossed the visible boundaries of propriety in taking a few decisions. For such inappropriate action, imposition of a major penalty would, however, be harsh. Considering all the key elements which constitute good governance in the district, I am led to believe that Shri Nayak crossed the visible boundaries of propriety in taking a few decisions. For such inappropriate action, imposition of a major penalty would, however, be harsh. The ends of justice can be adequately met if Shri Nayak is awarded minor penalties as envisaged under Rule 6 of the All India Service (Discipline and Appeal) Rules, 1969. Following two penalties are recommended for consideration. (a) Promotion of Shri Nayak may be withheld for a period of two years from the date of his eligibility. (b) Annual increments of pay of Shri Nayak may be withheld for a period of two years, on expiry of which it would not have the effect of postponing future increments of his pay.” The matter was thereafter placed before the Government, which in turn referred the same to the Union Public Service Commission (UPSC) along with the consolidated inquiry report dated 28.08.2003. Then, after supplying the consolidated inquiry report to opposite party no.5 and considering his representation, in which it was prayed that he be exonerated from all the charges framed against him, the disciplinary authority decided to impose the following punishments on opposite party No.5: (a) Promotion may be withheld for a period of one year from the date of his eligibility; and (b) One increment of pay may be withheld without cumulative effect for one year. 5. After the said penalties were imposed, the matter was referred to the UPSC on 03.04.2004, which affirmed the same. Thereafter the said punishment has been imposed on opposite party no.5 by order dated 5th July, 2016. The said order of the Government of Odisha dated 5th July, 2016 has been filed along with Misc. Case No.4 of 2016. 6. Shri M.S. Panda, learned counsel for the petitioners has submitted that though the copy of the said application was served on him in July, 2016 but he could not file a reply to the same because he was not provided with the documents referred to in the order dated 5th July, 2016. He has thus prayed that the opposite parties be directed to supply copies of the documents referred to in the order dated 5th July, 2016 so as to enable him to give a suitable reply. He has thus prayed that the opposite parties be directed to supply copies of the documents referred to in the order dated 5th July, 2016 so as to enable him to give a suitable reply. He has further submitted that the inquiry report is not a proper report and should not be accepted by this Court, with regard to which he has also filed several Misc. Cases. 7. On perusal of the order sheets, it appears that on 10.02.2016 and 17.02.2016, the matter was on the board. Considering that this is a 16 years old matter, on the request of Mr. M.S. Panda, learned counsel for the petitioners, opportunity was given to him to address the Court on merits and the matter was fixed for 15.02.2016 by order dated 10.02.2016. When the matter was taken up on 17.02.2016, somehow or other learned counsel for the petitioners did not co-operate with the hearing and made certain remarks. Consequently, the Court expressed its anguish and directed the matter to be placed before the Hon’ble Senior Judge for appropriate orders. When the matter was listed today, attempt was made for seeking adjournment of the contempt application by the learned counsel for the petitioners. In any case, since it is a contempt matter pending for over 16 years, learned counsel for the petitioners was called upon to argue the matter and the hearing was proceeded after giving opportunity to all the parties. 8. This Court is conscious of the fact that it is dealing with a contempt matter of the year 2000 which is pending for last 16 years. While considering the case in hand, this Court has taken into consideration that Law of contempt is of fundamental importance in every legal system. The power, which the Courts have for vindicating their own authority, is coeval with their first foundation and institution. It is necessary incident to every Court of justice to fine and imprison for contempt of the Court committed on the face of it. The sole purpose of proceedings for contempt is to give our Courts the power to effectively protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented. It is necessary incident to every Court of justice to fine and imprison for contempt of the Court committed on the face of it. The sole purpose of proceedings for contempt is to give our Courts the power to effectively protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented. The contempt jurisdiction appears to be based on the principle that the Court has the duty of protecting the interest of the community in the due administration of justice and so, it is entrusted with the power to commit for contempt of Court, not to protect the dignity of the Court against insult or injury, but to protect and vindicate the right of the public so that the administration of justice is not perverted, prejudiced, obstructed or interfered with. 9. Lord Denning in his book titled “The due process of law” states that :- “The course of justice must not be deflacted or interfered with. Those who strike at it strike at the very foundation of our society. To maintain law and order, the judge have and must have, power at once to deal with those who offend against it. It is a great power- a power instantly to imprison without trial- but it is a necessary power. So necessary, indeed, that until very recently the judges exercised it without any appeal.” xxx xxx xxx “There is not one stream of justice. There are many streams. Whatever obstructs their courses or muddies the water of any of those streams is punishable under the single cognomen ‘contempt of Court’.” 10. In the famous Quintin Hogg case (1968) 2 WLR 1204; 1206-07, the Lord Denning laid down remarkable guidelines in the matter of actions for contempt and said “It is a jurisdiction which undoubtedly belongs to us but which we will most sparingly exercise; more particularly as we ourselves have an interest in the matter. Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a Court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticize us will remember that, for the nature of our office; we cannot reply to their criticisms. We cannot enter into public controversy. Still less into Political controversy. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds or criticism, nothing which is said by this person or that, nothing which is written by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.” 11. In Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895 : (1998) 4 SCC 409 the apex Court held as follows: “Contempt of Court jurisdiction is a special jurisdiction. It has to be used cautiously and exercised sparingly. It must be used to uphold the dignity of the Courts and the majesty of law and to keep the administration of justice unpolluted, where the facts and circumstances so justify.” 12. The apex Court in T. Sudhakar Prasad v. Govt. of A.P., (2001) 1 SCC 516 in para-22 held as follows: “Contempt Jurisdiction is exercised for the purpose of upholding the majesty of law and dignity of judicial system and also of the Courts and Tribunals entrusted with the task and administering delivery of justice. Power of contempt has often been invoked, as a step in that direction for enforcing compliance with orders of courts and punishing for lapses in the matter of compliance. Power of contempt has often been invoked, as a step in that direction for enforcing compliance with orders of courts and punishing for lapses in the matter of compliance. The majesty of judicial institution is to be ensured so that it may not be lowered and the functional utility of the constitutional edifice is preserved from being rendered ineffective. The proceedings for contempt of court cannot be used merely for executing the decree of the Court. However, with a view to preserving the flow of the stream of justice in unsullied form and in unstinted purity willful defiance with the mandate of the Court is treated to be contemptuous. Availability of jurisdiction to punish for contempt provides efficacy to functioning of the judicial forum and enables the enforcement of the orders on account of its deterrent effect on avoidance.” 13. In Arundhanti Roy, In re, (2002) 3 SCC 343 , the apex Court held as follows: “There can be no doubt that the purpose of contempt jurisdiction is to uphold the majesty and dignity of law courts and their image in the minds of the public and that this is in no way whittled down. If by contumacious words or writings the common man is led to lose his respect for the Judge acting in the discharge of his judicial duties, then the confidence reposed in courts of justice is rudely shaken and the offender need be punished. In essence the law of contempt is the protector of the seat of justice more than the person of the Judge sitting in that seat. The law of contempt has been enacted to secure Public respect and confidence in the judicial process. If such confidence is shaken or broken, the confidence of the common man in the institution of judiciary and democratic set-up is likely to be eroded which, if not checked, is sure to be disastrous for the society itself.” 14. In Vinay Chandra Misra, In re, (1995) 2 SCC 584 , the apex Court held as follows: “Judiciary is the guardian of the rule of law. If the judiciary is to perform its duties and functions effectively, the dignity and authority of courts have to be respected and protected at all costs. In Vinay Chandra Misra, In re, (1995) 2 SCC 584 , the apex Court held as follows: “Judiciary is the guardian of the rule of law. If the judiciary is to perform its duties and functions effectively, the dignity and authority of courts have to be respected and protected at all costs. It is for this purpose that the courts are entrusted with the extraordinary power of punishing those who indulge in acts, whether inside or outside the courts, which tend to undermine their authority and bring them in disrepute and disrespect by scandalising them and obstructing them discharging their duties without fear or favour.” 15. In Chhotu Ram v. Urvashi Gulati, (2001) 7 SCC 530 , while explaining the object and purpose of the Contempt of Courts Act, 1971, the apex Court held as follows: “The introduction of the Contempt of Courts Act, 1971 in the statute- book has been for the purposes of securing a feeling of confidence of the people in general and for due and proper administration of justice in the country. It is a powerful weapon in the hands of the law courts by reason wherefor the exercise of jurisdiction must be with due care and caution and for larger interest.” 16. In In re: S. Mulgaokar, AIR 1978 SC 727 : (1978) 3 SCC 339, in paragraphs- 23 and 56, Krishna Iyer, J. has observed as follows: “23. The contempt power, though jurisdictionally large, is discretionary in its unsheathed exercise. Every commission of contempt need not erupt in indignant committal or demand punishment, because judges are judicious, their valour nonviolent and their wisdom goes into action when played upon by a volley of values, the least of which is personal protection for a wide discretion, range of circumspection and rainbow of public considerations benignantly guide that power. Justice is not hubris; power is not petulance and prudence is not pusilanimity, especially when judges are themselves prosecutors and mercy is a mark of strength, not whimper of weakness. Christ and Gandhi shall not be lost on the judges at a critical time when courts are on trial and the people ("we, the People of India") pronounce the final verdict on all national institutions. Christ and Gandhi shall not be lost on the judges at a critical time when courts are on trial and the people ("we, the People of India") pronounce the final verdict on all national institutions. Such was the sublime perspective, not plural little factors, that prompted me to nip in the bud the proceeding started for serving a larger cause of public justice than punitive action against a publisher, even assuming (without admitting) he was guilty. The preliminary proceeding has been buried publicly; let it lie in peace. Many values like free press, fair trial, judicial fearlessness and community confidence must generously enter the verdict, the benefit of doubt, without absolutist insistence, being extended to the defendant. Such are the dynamics of power in this special jurisdiction. These diverse indicators, carefully considered, have persuaded me to go no further, by a unilateral decision of the bench. This closure has two consequences. It puts the lid on the proceedings without pronouncing on the guilt or otherwise of the opposite parties. In a quasicriminal action, a presumption of innocence operates. Secondly, whatever belated reasons we may give for our action, we must not proceed to substantiate the accusation, if any. To condem unheard is not fairplay. Body line bowling, perhaps, is not cricket. So my reasons do not reflect on the merits of the charge.” 56. The Court is not an inert abstraction; it is people in judicial power. And when drawing up standards for Press freedom and restraint, as an 'interface' with an unafraid court, we must not forget that in our constitutional scheme the most fundamental of all freedoms is the free quest for justice by the small man. 'when beggars die, there are comets seen' and 'when the bull elephants fight the grass is trampled. ‘The contempt sanction once frozen by the high and mighty press campaign, the sufferer, in the long run, is the small Indian who seeks social transformation through a fearless judicial process. Social justice is at stake if foul press unlimited were to reign. As Justice Frankfurter stated, may be 'judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions' (a question I desist from deciding here), but when comment darkens into coercive imputation or calculated falsehood, threats to impartial adjudication subtly creeps. As Justice Frankfurter stated, may be 'judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions' (a question I desist from deciding here), but when comment darkens into coercive imputation or calculated falsehood, threats to impartial adjudication subtly creeps. Not because judges lack firmness nor that the dignity of the bench demands enchanced respect by enforced silence, as Justice Black observed in the Los Angeles Times case. ( (1941) 314 US 263 et al) but because the course of justice may be distorted by hostile attribution. Said Justice Jackson in Craig v. Harney ( (1946) 331 US 367): "I do not know whether it is the view of the Court that a Judge must be thick-skinned or just thickheaded, but nothing in my experience or observation confirms the idea that he is insensitive to publicity. Who does not prefer good to ill report of his work? And if fame - a good public name - is, as Milton said, the "last infirmity of noble mind," it is frequently the first infirmity of a mediocre one’.’ "I do not dogmatise but indicate the perils. Of course, the evil must be substantive and substantial, not chimerical or peripheral.” 17. In view of the law laid down by the apex Court, as discussed above, the foundation of judiciary is the trust and confidence of the people in its ability to deliver fearless and impartial justice and as such, no action can be permitted which may shake this very foundation itself. The purpose of judiciary is to uphold the majesty and dignity of the Courts of law. We are absolutely clear about the law that, while hearing a contempt petition, this Court is not to regulate the inquiry proceedings or the manner in which the order of punishment has been awarded, and all that this Court has to see is whether the order of the writ court has been complied with or not ? 18. Learned counsel for the State had given an undertaking before the Apex Court in Special Leave to Appeal (Civil) No.10093 of 2003, in which by order dated 25.08.2003 the Apex Court had recorded that “the inquiry would be completed within two months” and this Court (High Court) was to decide the contempt proceedings after receiving the inquiry report. 18. Learned counsel for the State had given an undertaking before the Apex Court in Special Leave to Appeal (Civil) No.10093 of 2003, in which by order dated 25.08.2003 the Apex Court had recorded that “the inquiry would be completed within two months” and this Court (High Court) was to decide the contempt proceedings after receiving the inquiry report. The inquiry report has been submitted within the time as granted by the apex Court on 25.08.2003. 19. Mr. M.S. Panda, learned counsel for the petitioners states that the observation of the Supreme Court that “the High Court to decide the contempt proceedings after receipt of the inquiry”, would mean that the High Court was to regulate the inquiry and see whether the same is correctly conducted or not. In our considered opinion, the submission is devoid of merit. The High Court, in contempt jurisdiction, is only to consider whether the order of the writ Court has been complied with or not. In our opinion, after filing of the inquiry report, the order has been complied with, and more so after the punishment order dated 5th July, 2016 has been passed by the State. 20. In J.S. Parihar v. Ganpat Duggar, (1996) 6 SCC 291 the apex Court held as follows: “The correctness of an order passed by a statutory authority on the direction of the High Court cannot be examined by the High Court while exercising the contempt jurisdiction.” In Security and Finance v. Age., AIR 1970 SC 720 , the apex Court also held that:- “an authority holding an enquiry in good faith in exercise of powers vested in it by a statute is not guilty of contempt of Court merely because a parallel inquiry is imminent or pending before a Court”. 21. At this stage, Sri M.S. Panda, learned counsel for the petitioner has submitted that he has not been granted adequate opportunity to argue the case, as he was under the impression that he would be granted time to file a counter affidavit to the Misc. Case No.4 of 2016, after a direction would be issued to the opposite parties to supply the connected documents referred to in the order dated 5th July, 2016. Case No.4 of 2016, after a direction would be issued to the opposite parties to supply the connected documents referred to in the order dated 5th July, 2016. In our view the same is not necessary, especially when the law is clear that the contempt is between the Court and the alleged contemnor and after the petitioners brings the same to the notice of the Court, it is for the Court to decide the matter and if necessary, the Court can seek the assistance of the person who has brought the matter to the notice of the Court, but the Court can also proceed to decide the matter without such assistance. 22. The above view has also got sanction of the law laid down by the apex Court in D.N. Taneja v. Bhajan Lal, (1998) 3 SCC 26 where, the apex Court held as follows: “A contempt is a matter between the Court and the alleged contemner. Any person who moves the machinery of the Court for contempt only brings to the notice of the Court certain facts constituting contempt of Court. After furnishing such information he may still assist the Court but it must always be borne in mind that in a contempt proceeding there are only two parties, namely, the Court and the contemner.” 23. Sri M.S. Panda learned counsel for the petitioners has reiterated that the correctness and legality of the inquiry proceedings, as well as punishment awarded in pursuance of the inquiry report, ought to be looked into by this Court in the contempt proceeding. We are afraid that such is not the law, as has already been discussed and held by us in the preceding paragraphs. In case the petitioners have any grievance with regard to the inquiry proceedings, they shall always have liberty to approach the appropriate authority or the Court, challenging the same in accordance with law, but the same cannot be looked into in contempt proceeding. 24. In view of the above, the contempt proceeding is dropped. Accordingly, the OCRMC stands dismissed. Consequently, all the pending applications stand disposed of.