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2017 DIGILAW 123 (HP)

Abhilash Chand v. Sanjay Gupta

2017-03-06

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

body2017
Tarlok Singh Chauhan, J. Both these contempt petitions have been filed against the judgment rendered by this Court in CWP No.937/2015, titled as ‘Abhilash Chand & others versus State of Himachal Pradesh and others’ alongwith connected matters decided on 03.11.2015 whereby the respondents were directed to implement the policy framed by them within a period of six months, as would be evident from the operative portion of the judgment which reads thus:- “3. In view of the above, we deem it proper to dispose of the writ petitions by directing the Authorities concerned to implement the said Policy as early as possible, preferably within six months. Ordered accordingly.” 2. It is averred that it was only on account of the directions passed by this Court that the State Government formulated the policy for taking over the services of the petitioners as well as similarly situated persons with a condition precedent that all those who are to be benefited by the policy should not have any litigation pending. The petitioners with bonafide belief that their services would be regularized withdrew the petition earlier filed by them, but would complain that the respondents were not implementing their own policy notified on 3rd October, 2015, as was undertaken by them. 3. The respondents have filed their reply wherein it is averred that though there has been some delay in implementing the policy, however, the same stands implemented in its letter and spirit. We have heard the learned counsel for the parties and gone through the records of the case. 4. Shri M.L.Sharma, learned Senior Counsel, assisted by Shri B.L.Soni and Shri Aman Parth Sharma, Advocates, for the petitioners would vehemently argue that since the respondents have failed to implement the judgment within the stipulated period and un-necessarily dilly-dallying the matter, therefore, they should be prosecuted and punished for having willfully and deliberately flouting the orders passed by this Court and thereby committed the contempt. 5. Learned Senior Counsel for the petitioners in order to buttress his submissions has placed reliance on the following observations of the Hon’ble Supreme Court in Priya Gupta and Anr. versus Addl. Secy., Ministry of Health and Family Welfare and Ors. 2013 Criminal law Journal 732 which read thus: “13. As already noticed, the violations are admitted on the part of this contemnor. versus Addl. Secy., Ministry of Health and Family Welfare and Ors. 2013 Criminal law Journal 732 which read thus: “13. As already noticed, the violations are admitted on the part of this contemnor. The tendering of apology by him, though at the initial stage of the hearings, cannot be accepted by the Court inasmuch as violation of the orders of the Court is willful, intentional, and prejudicial. Such conduct, not only has the adverse effect on the process of admissions and disturbs the faith of people in the administration of justice, but also lowers the dignity of the Court by unambiguously conveying that orders of this Court, its directions and prescribed procedure can be manipulated or circumvented so as to frustrate the very object of such orders and directions, thereby undermining the dignity of the Court. Administration of justice is a matter which cannot be ignored by the Court and the acceptance of apology tendered by the contemnor would amount to establishing a principle that such serious violations would not entail any consequences in law. This would, thus encourage repetition of such offences, rather than discouraging or preventing others from committing offences of similar nature as it would have no preventive or deterrent effect on persons for committing such offences in future. Thus, it is not a case where the Court should extend mercy of discharging the accused by acceptance of apology, as it would amount to encouraging similar behaviour. 20. The provisions of the Act do not admit any discretion for the initiation of proceedings under the Act with reference to an order being of general directions or a specific order inter se the parties. The sine qua non to initiation of proceedings under the Act is an order or judgment or direction of a Court and its wilful disobedience. Once these ingredients are satisfied, the machinery under the Act can be invoked by a party or even by the Court suo motu. If the contention raised on behalf of the contemnor is accepted, it will have inevitable consequences of hurting the very rule of law and, thus, the constitutional ethos. The essence of contempt jurisprudence is to ensure obedience of orders of the Court and, thus, to maintain the rule of law. History tells us how a State is protected by its Courts and an independent judiciary is the cardinal pillar of the progress of a stable government. The essence of contempt jurisprudence is to ensure obedience of orders of the Court and, thus, to maintain the rule of law. History tells us how a State is protected by its Courts and an independent judiciary is the cardinal pillar of the progress of a stable government. If overenthusiastic executive attempts to belittle the importance of the Court and its judgments and orders, and also lowers down its prestige and confidence before the people, then greater is the necessity for taking recourse to such power in the interest and safety of the public at large. The power to punish for contempt is inherent in the very nature and purpose of the Court of justice. In our country, such power is codified. It serves at once a dual purpose, namely, as an aid to protect the dignity and authority of the Court and also in aiding the enforcement of civil remedies. Looked at from a wider perspective, contempt power is also a means for ensuring participation in the judicial process and observance of rules by such participants. Once the essentials for initiation of contempt proceedings are satisfied, the Court would initiate an action uninfluenced by the nature of the direction i.e. as to whether these directions were specific in a lis pending between the parties or were of general nature or were in rem.” 6. He further placed reliance on the following observations of the Hon’ble Supreme Court in Kshiti Goswami and others versus Subrata Kundu and others (2013) 11 SCC 618 which read thus:- “11. It is not in dispute that the Selection Committee had recommended the names of 179 candidates including the respondents. Shri Pijush Roy, learned counsel for the petitioners stated that out of 179 candidates recommended by the Selection Committee, 161 were appointed and the remaining 18 persons were not appointed despite the directions given by the Tribunal and the High Court because the merit list had become defunct. He made strenuous effort to persuade us to take the view that in exercise of contempt jurisdiction the High Court cannot issue direction for implementation of the order, violation of which led to the initiation of the contempt proceedings, but we have not felt persuaded to agree with him. He made strenuous effort to persuade us to take the view that in exercise of contempt jurisdiction the High Court cannot issue direction for implementation of the order, violation of which led to the initiation of the contempt proceedings, but we have not felt persuaded to agree with him. Rather, we are in complete agreement with the High Court that one of the objects of the contempt jurisdiction which is exercised by the High Court under Article 215 of the Constitution read with the Contempt of Courts Act, 1971 is to ensure faithful implementation of the direction given by it. This is precisely what the Division Bench of the High Court has done in this case. Therefore, we do not find any valid ground or justification to entertain the petitioners’ challenge to the impugned order. 12. With the above observations, the special leave petition is dismissed. 13. The Chief Secretary, Government of West Bengal, the Principal Secretary, Public Works Department (Roads), West Bengal and the Chief Engineer, Public Works Department (Roads), West Bengal are directed to implement order dated 12-9-1997 passed by the High Court in Principal Secy., Writers’ Building v. Santanu Mitra WPST No.169 of 1997, order dated 12-9-1997 (Cal) within a period of four weeks from today. The appointments to be made hereinafter shall be effective from the date of the order of the Tribunal. It should be specifically mentioned in the appointment letters that the appointees shall get all consequential benefits including seniority except the pay which shall be notionally fixed.” 7. Continuing further with his submissions, learned Senior Counsel for the petitioners, would then rely upon the following observations of the Hon’ble Supreme Court in S.V.A. Steel Re-Rolling Mills Limited and others versus State of Kerala and others (2014) 4 SCC 186 which are as under:- “30. Before laying down any policy which would give benefits to its subjects, the State must think about pros and cons of the policy and its capacity to give the benefits. Without proper appreciation of all the relevant factors, the State should not give any assurance, not only because that would be in violation of the principles of promissory estoppel but it would be unfair and immoral on the part of the State not to act as per its promise.” 8. Without proper appreciation of all the relevant factors, the State should not give any assurance, not only because that would be in violation of the principles of promissory estoppel but it would be unfair and immoral on the part of the State not to act as per its promise.” 8. Lastly, learned Senior Counsel for the petitioners, would bank upon the judgment rendered by a Co-ordinate Bench of this Court in which one of us (Hon’ble the Chief Justice was a member) in COPC No.11/2016 titled ‘Dr.Rattan Singh versus Shri A.D.N. Vajpayee and others’ and connected matters decided on 09.11.2016, more particularly, the following observations:- “10. Their lordships of the Hon’ble Supreme Court in Bihar Finance Service House Construction Coop. Society Ltd. V. Gautam Goswami reported in (2008) 5 SCC 339 have held as under: “33. This Court while exercising its jurisdiction under the Contempt of Courts Act or Article 129 of the Constitution of India must strive to give effect to the directions issued by this Court. When the claim of the parties had been adjudicated upon and has attained finality, it is not open for any party to go behind the said orders and seek to take away and/ or truncate the effect thereof. [See T.R. Dhananjaya v. J. Vasudevan (1995) 5 SCC 619 ] 34. In Prithawi Nath Ram v. State of Jharkhand and Others (2004) 7 SCC 261 ], this Court held: "5. 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 than what was taken in the earlier decision.” It was furthermore observed: "6. On the question of impossibility to carry out the direction, the views expressed in T.R. Dhananjaya v. J. Vasudevan need to be noted. 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 legitimize legal alibi to circumvent the order passed by a court." 35. 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 legitimize legal alibi to circumvent the order passed by a court." 35. Moreover undertakings had been given by the respondents before this Court from time to time. What they have done or intend to do is only the compliance thereof. The petitioner had to wait for a long time to get the fruits of requisition made by it for acquisition of land. The lands were acquired in 1983 on the basis of the requisition made by it in 1973. 11. Their lordships of the Hon’ble Supreme Court in Sudhir Vasudeva v. M. George Ravishekaran reported in (2014) 3 SCC 373 have held as under: “15. The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt. The very nature of the power casts a sacred duty in the Courts to exercise the same with the greatest of care and caution. This is also necessary as, more often than not, adjudication of a contempt plea involves a process of self determination of the sweep, meaning and effect of the order in respect of which disobedience is alleged. Courts must not, therefore, travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are explicit in a judgment or order or are plainly self evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or willful violation of the same. Decided issues cannot be reopened; nor the plea of equities can be considered. Courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon. Decided issues cannot be reopened; nor the plea of equities can be considered. Courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon. No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above. The above principles would appear to be the cumulative outcome of the precedents cited at the bar, namely, Jhareswar Prasad Paul and Another vs. Tarak Nath Ganguly and Others, V.M.Manohar Prasad vs. N. Ratnam Raju and Another, Bihar Finance Service House Construction Cooperative Society Ltd. vs. Gautam Goswami and Others and Union of India and Others vs. Subedar Devassy PV.” 12. Before concluding, we are constrained to observe that despite there being numerous directions, as noticed in the show cause notices, responsible officers manning decision making posts, sat over the matter purposely and intentionally, solely with a view to defeat the rightful claim of the petitioners. Had the petitioners not come to this Court by way of present contempt petitions, probably, they would have been denied rightful claim as extended to them vide Notification dated 2.8.2014. Normally, after seeing the conduct of the respondents, this Court would not have shown any lenience to the officers concerned but after taking into consideration the latest reply to the show cause notice, wherein they have tendered unconditional apology for not obeying the direction of this court, this court drops the notice of contempt issued against the respondents. However, they are cautioned to remain more vigilant and prompt, in future, while discharging their duties.” 9. Obviously, there cannot be any dispute with the ratio in the judgments relied upon by the learned counsel for the petitioners. The rule of law is a fundamental feature of our Constitution. The right to obtain judicial redress is a feature of its basic structure. In a contempt petition as indeed, in every other case the decision must necessarily rest on the facts of that case. The rule of law is a fundamental feature of our Constitution. The right to obtain judicial redress is a feature of its basic structure. In a contempt petition as indeed, in every other case the decision must necessarily rest on the facts of that case. There can be no doubt that where there has been an unequivocal, deliberate and willful disobedience to the order of Court, punishment for contempt of Court is called for and should be unhesitatingly imposed upon the party, if found guilty. The law of contempt is to secure public respect and confidence in judiciary and judicial process. The purpose of contempt proceedings is to preserve and maintain the flow of stream of justice in its unsullied form and purity. But it should be remembered that the Court’s power to punish for contempt in summary proceedings must be sparingly used and with circumspection by making appropriate allowances for common human fallings within reasonable limits. 10. This Court has lucidly considered the legal position in COPC No.753/2015 titled Shri Uma Dutt versus Shri Srikant Baldi and others, decided on 09.12.2015 and observed as under:- “9. While it is duty of the Court to punish a person who tries to obstruct the course of justice or brings to disrepute the institution of judiciary. However, this power has to be exercised not casually or lightly, but with great care and circumspection. Contempt proceedings serve a dual purpose of vindication of the public interest by punishment of the contumacious conduct and coercion to compel the contemnor to do what the law requires of him. 10. A question whether there is contempt of Court or not is a serious one. The Court is both the accuser as well as the judge of the accusation. It behoves the Court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising from inveterate practices in Courts and tribunals. It is only when a clear case of contumacious conduct not explainable otherwise, arises that the contemnor must be punished. Punishment under the law of Contempt is called for when the lapse is deliberate and in disregard of one’s duty and in defiance of authority. 11. While dealing with the contempt petitions, the Courts are not required to travel beyond the four corners of order, which is alleged to have been disobeyed or disregarded deliberately and willfully. Punishment under the law of Contempt is called for when the lapse is deliberate and in disregard of one’s duty and in defiance of authority. 11. While dealing with the contempt petitions, the Courts are not required to travel beyond the four corners of order, which is alleged to have been disobeyed or disregarded deliberately and willfully. In this connection, it shall be apposite to make a fruitful recapitulation of a recent judgment of the Hon’ble Supreme Court in Ram Kishan Vs. Tarun Bajaj and others 2014 AIR SCW 1218, wherein it was held that:- “9. Contempt jurisdiction conferred onto the law courts power to punish an offender for his willful disobedience/contumacious conduct or obstruction to the majesty of law, for the reason that respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizens that his rights shall be protected and the entire democratic fabric of the society will crumble down if the respect of the judiciary is undermined. Undoubtedly, the contempt jurisdiction is a powerful weapon in the hands of the courts of law but that by itself operates as a string of caution and unless, thus, otherwise satisfied beyond reasonable doubt, it would neither fair nor reasonable for the law courts to exercise jurisdiction under the Act. The proceedings are quasi- criminal in nature, and therefore, standard of proof required in these proceedings is beyond all reasonable doubt. It would rather be hazardous to impose sentence for contempt on the authorities in exercise of contempt jurisdiction on mere probabilities. (Vide: V.G. Nigam & Ors. v. Kedar Nath Gupta & Anr., AIR 1992 SC 2153 ; Chhotu Ram v. Urvashi Gulati & Anr., AIR 2001 SC 3468; Anil Ratan Sarkar & Ors. v. Hirak Ghosh & Ors., AIR 2002 SC 1405 ; Bank of Baroda v. Sadruddin Hasan Daya & Anr., AIR 2004 SC 942; Sahdeo alias Sahdeo Singh v. State of U.P. & Ors., (2010) 3 SCC 705 ; and National Fertilizers Ltd. v. Tuncay Alankus & Anr., AIR 2013 SC 1299 ). 10. Thus, in order to punish a contemnor, it has to be established that disobedience of the order is wilful. The word wilful introduces a mental element and hence, requires looking into the mind of person/contemnor by gauging his actions, which is an indication of ones state of mind. 10. Thus, in order to punish a contemnor, it has to be established that disobedience of the order is wilful. The word wilful introduces a mental element and hence, requires looking into the mind of person/contemnor by gauging his actions, which is an indication of ones state of mind. Wilful means knowingly intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, bonafide or unintentional acts or genuine inability. Wilful acts does not encompass involuntarily or negligent actions. The act has to be done with a bad purpose or without justifiable excuse or stubbornly, obstinately or perversely. Wilful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore, there has to be a calculated action with evil motive on his part. Even if there is a disobedience of an order, but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order, the contemnor cannot be punished. Committal or sequestration will not be ordered unless contempt involves a degree of default or misconduct. (Vide: S. Sundaram Pillai, etc. v. V.R. Pattabiraman; AIR 1985 SC 582 ; Rakapalli Raja Rama Gopala Rao v. Naragani Govinda Sehararao & Anr., AIR 1989 SC 2185 ; Niaz Mohammad & Ors. etc.etc. v. State of Haryana & Ors., AIR 1995 SC 308 ; Chordia Automobiles v. S. Moosa, AIR 2000 SC 1880 ; M/s. Ashok Paper Kamgar Union & Ors. v. Dharam Godha & Ors., AIR 2004 SC 105 ; State of Orissa & Ors. v. Md. Illiyas, AIR 2006 SC 258 ; and Uniworth Textiles Ltd. v. CCE, Raipur, (2013) 9 SCC 753 ). 11. In Lt. Col. K.D. Gupta v. Union of India & Anr., AIR 1989 SC 2071 , this Court dealt with a case wherein direction was issued to the Union of India to pay the amount of Rs. 4 lakhs to the applicant therein and release him from defence service. The said amount was paid to the applicant after deducting the income tax payable on the said amount. 4 lakhs to the applicant therein and release him from defence service. The said amount was paid to the applicant after deducting the income tax payable on the said amount. While dealing with the contempt application, this Court held that withholding the amount cannot be held to be either malafide or was there any scope to impute that the respondents intended to violate the direction of this Court. 12. In Mrityunjoy Das & Anr. v. Sayed Hasibur Rahaman & Ors., AIR 2001 SC 1293 , the Court while dealing with the issue whether a doubt persisted as to the applicability of the order of this Court to complainants held that it would not give rise to a contempt petition. The court was dealing with a case wherein the statutory authorities had come to the conclusion that the order of this court was not applicable to the said complainants while dealing with the case under the provision of West Bengal Land Reforms Act, 1955. 13. It is well settled principle of law that if two interpretations are possible, and if the action is not contumacious, a contempt proceeding would not be maintainable. The effect and purport of the order is to be taken into consideration and the same must be read in its entirety. Therefore, the element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act. (See: Sushila Raje Holkar v. Anil Kak (Retd.), AIR 2008 (Supp-2) SC 1837; and Three Cheers Entertainment Pvt. Ltd. & Ors. v. C.E.S.C. Ltd., AIR 2009 SC 735 ): (2008 AIR SCW 7951).” Similar view has been taken by this Bench in Contempt Petition No. 415 of 2014, Rulda Ram Vs. Rakesh Kanwar, decided on 28th February, 2015.” 11. As observed earlier, the only grievance of the petitioners is that the respondents have not complied with the judgment in question. However, we find that the respondents have placed on record a tabulated chart in both the cases on the basis of which it can be gathered that the judgment infact stands complied with and the same is reproduced below:- “ABSTRACT OF THE PETITIONERS OF COPC 216/2016 IN CWP No.937/2015. Sr.No. Particular of the case Remarks 1. Nos. of Petitioners in COPC No.216/2016 in CWPNo.937/2015 37 (Thirty Seven) 2. Nos. of Petitioners to whom orders for conversion of services into Govt. Sr.No. Particular of the case Remarks 1. Nos. of Petitioners in COPC No.216/2016 in CWPNo.937/2015 37 (Thirty Seven) 2. Nos. of Petitioners to whom orders for conversion of services into Govt. contract are being issued after the completion of the final checking of documents/ certificates etc; which is under process. 15(Fifteen) 3. Nos. of Petitioners exceeded the age of 45 years 04 (Four) 4. Nos. of Petitioners who have not completed the required period upto 31/07/2015 for conversion of services as per Govt. Notification dated 03/10/2015. 18 (Eighteen) 1. The Notification dated 03/10/2015 issued by the State Govt. is enclosed as Annexure-A-1. 2. The letter dated 21/10/2015 issued by the State Govt. is enclosed as Annexure-A-II. 3. The letter dated 25/07/2016 alongwith Annexure-A issued by the State Govt. is enclosed as Annexure-A-III.” “ABSTRACT OF THE PETITIONERS OF COPC 217/2016 IN CWP No.1146/2015. Sr. No. Particular of the case Remarks 1. Nos. of Petitioners in COPC No.217/2016 in CWP No.1146/2015 80 (Eighty) 2. Nos. of Petitioners to whom orders for conversion of services into Govt. contract are being issued after the completion of the final checking of documents/certificates etc; which is under process. 13(Thirteen) 3. Nos. of Petitioners exceeded the age of 45 years 02 (Two) 4. Nos. of Petitioners who have not completed the required period upto 31/07/2015 for conversion of services as per Govt. Notification dated 03/10/2015. 65 (Sixty Five) 12. To be fair to the learned counsel for the petitioners, he would argue that making the appointments of the petitioners subject to the final outcome of Special Leave Petition (C) No.20353/2016, titled ‘Raj Kumar and another versus State of H.P. and others, is completely wrong and would further contend that even the appointment orders issued to some of the petitioners are contrary to the scheme itself. 13. We have noticed these contentions and are of the considered opinion that the respondents by making appointments of the petitioners subject to the outcome of SLP(C) in Raj Kumar’s case have not flouted or violated the order passed by this Court and cannot, therefore, be said to have committed any contempt. 14. 13. We have noticed these contentions and are of the considered opinion that the respondents by making appointments of the petitioners subject to the outcome of SLP(C) in Raj Kumar’s case have not flouted or violated the order passed by this Court and cannot, therefore, be said to have committed any contempt. 14. As regards the appointment orders of some of the petitioners, being in alleged violation of the policy (policies), the same too does not violate any part of the directions passed by this Court, as this Court in its judgment had only directed the Authority concerned to implement the policy as early as possible, preferably within six months. In case, the petitioners is/are still aggrieved by any of conditions contained in their orders of appointments, they are free to approach the appropriate forum for redressal of their grievances. 15. The respondents have taken all necessary steps to comply with the judgment of this Court and, therefore, in the given circumstances, we are not satisfied that a case of willful contempt is made out. 16. Having said so, we find no merit in these petitions and the same are dismissed. Pending applications, if any, also stands disposed of. Registry is directed to place a copy of this judgment on the file of connected matter.