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S.P. Agarwal Vs. R.R. Upadhya and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1978CriLJ789
AppellantS.P. Agarwal
RespondentR.R. Upadhya and anr.
Cases ReferredIn Mulk Raj v. State of Punjab.
Excerpt:
- - co-operative employees service regulations 1975. notice of the writ petition as well as the stay application was served on the bank and the administrator. , 1976 had been wrongly recorded by the stenographer of this court as a result of which direction for salary was issued although the court bad directed for the payment of subsistence allowance only. in their affidavits as well as in their oral testimony before us the contemners have pleaded that they could not understand the meaning or implication of the expression 'he shall be paid his salary as and when due' occurring in the order of this court dated 20-10-1976. we have considered the oral statements affidavits and have also perused the original file maintained in the bank in this matter. in that opinion the district government.....k.n. singh, j.1. these are two contempt applications, one filed under section 12 of the contempt of courts act, 1971. and the other filed under article 215 of the constitution for taking action against r r. upadhya and s. n. tewari, respondent, for wilful disobdience of the orders of this court.2. s. p. agarwal, the applicant, was in the service of the district co-operative bank; bijmor, as its secretary. certain charges were framed against him and he was placed under suspension on 6-2-1976. after enquiry he was removed from service on 11-6-1976. the committee of management of the bank had been superseded and r. r. upadhya, deputy registrar, co-operative societies, was appointed administrator under section 35 of the u. p. co-operative societies act. 1965, to manage the affairs of the.....
Judgment:

K.N. Singh, J.

1. These are two contempt applications, one filed Under Section 12 of the Contempt of Courts Act, 1971. and the other filed under Article 215 of the Constitution for taking action against R R. Upadhya and S. N. Tewari, respondent, for wilful disobdience of the orders of this Court.

2. S. P. Agarwal, the applicant, was in the service of the District Co-operative Bank; Bijmor, as its Secretary. Certain charges were framed against him and he was placed under suspension on 6-2-1976. After enquiry he was removed from service on 11-6-1976. The Committee of Management of the Bank had been superseded and R. R. Upadhya, Deputy Registrar, Co-operative Societies, was appointed Administrator Under Section 35 of the U. P. Co-operative Societies Act. 1965, to manage the affairs of the Bank, S. P. Agarwal challenged the validity of the order of his dismissal before this Court by means of a writ petition under Article 226 of the Constitution. The writ petition (No. 1379 of 1976) was admitted on 31st August, 1976, and notices were issued to the Bank and to the Administrator. Along with the writ petition an application for stay was also filed. A Division Bench of this Court passed1 the following ex parte interim order:

Issue notice.

Operation of the order dated 11-6-1976, communicated to the petitioner under the signature of the officiating Secretary. District Co-operative Bank, Bijnor, and the Resolution of the Committee of Management of the Society concerned shall remain stayed meanwhile. It is, however, made clear that this order does not disable the Administrator from passing fresh orders after obtaining prior approval of the Institutional Board, as contemplated by Regulation 87 of the IT. P. Co-operative Employees Service Regulations 1975.

Notice of the writ petition as well as the stay application was served on the Bank and the Administrator. A counter-affidavit was filed on behalf of the Barak and the Administrator with an application dated 6-10-1976 to vacate the interim order dated 31st August, 1979 After hearing counsel for the parties, a Division Bench of this Court passed the following order:

Heard learned counsel for the parties. We find no justification to vacate the interim order dated 31-8-1976. It is, how- ever, made clear that the Society will be free not to take work from the petitioner, but he shall be paid his salary as and when due.

The applicant S. P. Agarwal obtained a certified copy of the order and submitted the same in the office of the Administrator, and in spite of his repeated reminders his salary was not paid and he was not allowed to work. S. P. Agarwal contacted S. N. Tewari, respondent No, 2, who had been appointed Secretary in place of S. P. Agarwal and insisted that the High Court's order be obeyed but the order of this Court was not complied.

3. In his Writ Petn. No. 1379 of 1976, S. P. Agarwal had raised the question that the order of dismissal had been passed without obtaining prior approval of the Institutional Board as contemplated by regulation 87 of the U. P. Co-operative Employees Service Regulations, 1975. While issuing the ex parte interim order on 31-8-1976 the Bench had observed that the Administrator was free to pass fresh order after obtaining approval of the Institutional Board in accordance with Regulation 87 of the said Regulations. R. R. Upadhya, Administrator, took fresh proceedings and after obtaining the approval of the Institutional Board passed another order on 9th February, 1977, dismissing the applicant S. P. Agarwal from service S. P. Agarwal thereafter filed another petition in this Court (Writ Petn. No. 434 of 1977) challenging the validity of the order dated 9th February, 1977. On 11-4-1977. a Division Bench of this Court admitted the Writ petition and issued notices to the respondents which included the Bank and the Administrator. On the stay application, the Bench issued notice to the respondents. S. N. Tewari, Secretary of the Bank, filed a counter affidavit in the writ petition, in opposition to the stay application. The stay application came up for hearing before a Bench of this Court consisting of C. S. P. Singh and B. N. Sapru, JJ. on 19th May 1977. After hearing counsel for the parties the Bench issued the following interim order staying the operation of the impugned order:

Heard counsel for the parties. By order dated 2CM0-1976 passed in Writ petition No. 1379 of 1976 the respondents were directed to pay the salary of the petitioner as and when it fell due. It transpires that the salary has not yet been paid to the petitioner on the alleged misconception on the part of the respon- dents that only subsistence allowance was required to be paid and not the full salary. The earlier stay order directed the payment of the entire salary and not the subsistence allowance alone and as such the respondents should pay the entire salary due to the petitioner up to date by 16-6-1977 and keep on paying the salary from June 1977 onwards as and when it fell due. It will however be open to the respondents not to take work from the petitioner.

The operation of the impugned order terminating the service of the petitioner passed by the Administrator shall remain stayed meanwhile.

The aforesaid order was, however, not obeyed and no salary was paid to S. P. Agarwal as directed by this Court,

4. On 10th Feb., 1977 S. P. Agarwal filed Contempt Application No. 23 of 1977 in this Court under S- 12 of the Contempt of Courts Act for taking action against R. R. Upadhya Administrator, and S. N. Tewari, Secretary of the Bank for wilful disobedience of the orders of this Court dated 20th October, 1976, passed in Writ petition No. 1379 of 1976. On 31st March, 1977, a learned single Judge of this Court issued notices on the contempt application to R. R. Upadhya and S. N. Tewari. which were served on them. Even after the service of the notice of the contempt application and the issue of the order of this Court dated 19th May, 1977, the Administrator and the Secretary did not comply with the orders of this Court and S. P. Agarwal was not paid his salary nor he was allowed to join his duties as directed by this Court. S. P. Agarwal thereupon filed another contempt application No. 12389 of 1977 under Article 215 of the Constitution against the Bank and R. R. Upadhya for taking action and punishing them for non-compliance of the orders dated 20th October 1976 and 19th May, 1977.

5. R. R. Upadhya and S. N. Tewari both filed affidavits in opposition to the contempt applications wherein they asserted that they were ready to pay subsistence allowance to S. P. Agarwal but since he did not accept the same they could not do anything further in the matter. They pleaded that S. P. Agarwal was not entitled to salary, instead he was entitled to suspension allowance only. They further asserted that the order dated 20th Oct., 1976 had been wrongly recorded by the Stenographer of this Court as a result of which direction for salary was issued although the Court bad directed for the payment of subsistence allowance only. With regard to the compliance of order of this Court dated 19th May, 1977, they asserted that they did not comply with that order and pay salary to S. P. Agarwal by 15th June 1977. a& the Bank had filed appeal before the Supreme Court against that order, and along with the memo of appeal a cheque for a sum of Rs. 25.000/- was filed before the Supreme Court towards salary of S. P. Agarwal up to 30th June, 1977. Later on another cheque for Rs. 10,000/- was deposited in the Supreme Court toward? the advance payment of salary for five months. The appeal was filed in the registry of the Supreme Court, it was wither heard nor the Court passed any orders staying the operation of the order of this Court.

6. When these two contempt matters came up for hearing before us, the contemners sought for adjournment to -obtain stay order from the Supreme Court, but no stay order was produced before us. The special leave petition filed by the Bank against the order of this Court dated 19th June, 1977, appears to have been withdrawn by the Bank on 25-10-77. We. therefore, proceeded with the hearing of the contempt applications. Since there were a number of inconsistencies in the affidavits, we considered it necessary to examine the contemaers in order to give them opportunity to explain these inconsistencies. We, examined ft. S. Upadhya, S, N. Tewari and Aaup Smgh Bana and P. D. Bishnoi.

7. The facts as stated earlier would show that the order of this Court dated 20th October, 1976. was very clear. it directed the respondents which included the Bank and its Administrator to pay salary to S. P. Agarwal as and when due even if no work was taken from him. The contemners have taken stand that there was some misconception about the implication of the order dated 20th October, 1976, as a result of which they could not pay salary to S. P. Agarwal. In their affidavits as well as in their oral testimony before us the contemners have pleaded that they could not understand the meaning or implication of the expression 'he shall be paid his salary as and when due' occurring in the order of this Court dated 20-10-1976. We have considered the oral statements affidavits and have also perused the original file maintained in the Bank in this matter.

8. There is no dispute that the order of this Court dated 20th October, 1976, was not complied with by R. R. Upadhya, Administrator of the Bank, as no salary was paid to S P. Agarwal. S. N. Tewari. who was the Secretary of the Bank, was Chief Executive Officer and it was his duty to take steps for the payment of salary to S. P. Agarwal as directed by this Court. There is further no dispute that the order of this Court dated 19-5-1977, was not complied with by the contemners inasmuch as S. P. Agarwal was not paid his full salary by 15th June, 1977. Thus it is obvious that R. R. Upadhya who was Administrator of the Bank and party to the Writ petitions disregarded orders of this Court and S. N. Tewari who was Secretary and Chief Executive Officer of the Bank flouted orders of this Court. Since the contemners have raised a number of pleas in their defence, we consider it necessary to examine those pleas to ascertain as to whether the contemners had any genuine or bpna fide grounds in disregarding orders of this Court.

9. On a careful scrutiny of the affidavits, oral testimony of the contemners and the relevant file of the District Cooperative Bank which was produced before us by the counsel for the Bank, we are of the opinion that none of the pleas raised by the contemners is bona fide or genuine. Firstly, the order dated 20th October, 1976, was clear which stated that the Bank was free not to take work from S. P. Agarwal, but he shall be paid his salary as and when due. There was no misconception or ambiguity in the order. The plea of ambiguity or lack of understanding raised by the contemners is hardly convincing. Both the contemners are highly paid officers and it is difficult to give any credence to their plea that they could not understand the meaning or implication of the direction contained in this Court's order dated Oct. 20, 1976. This plea has been taken by them only to create defence as they fully knew the implication of the order. In this context it is pertinent to note that Shri Vijai Bahuguna, an Advocate of this Court, who was counsel for the Bank and the Administrator, and who appeared before the Court at the time when the order dated 20th October, 197& was passed had send a letter to the Secretary of the Bank on 25th October, 1976. In his letter Sri Bahuguna had explained the implication of the order of this Court and stated that 'the Court has now directed that it will not be mandatory for the bank to take work from the petitioner provided his full salary is paid by the Bank. Now you have an option either to give charge or not to take work from him and pay him his full salary till the writ petition is decided. 'This letter is on the record of the Bank and the contemners in their testimony before us admitted that the letter was received and they had perused the same. Thus even if the contemners had any misconception about the implications of the order of this Court dated 20th October, 1976, that misconception stood dispelled by the advice tendered by their counsel. The contemners were interested in denying S. P. Agarwal the benefit of this Court's order as would appear from their subsequent conduct. On 1st November, 1976, S. P. Agarwal made an application for the payment of the entire salary and along with that application he submitted a certified copy of the order of this Court. No steps were however taken by R. R. Upadhya or Tewari for the compliance of the order even thereafter.

10. In the ex parte interim order of this Court dated 31st August, 1976, the operation of the order of dismissal dated 11-6-1976 passed against S. P. Agarwal was stayed. The Bench had however directed that the interim order would not disable the Administrator from passing fresh orders after obtaining prior approval of the Institutional Board as contemplated by Regulation 87 of the V. P. Cooperative Employees Service Regulation, 1975. The Bench had thus permitted the Administrator to pass fresh orders after obtaining prior approval of the Board. R. R. Upadhya obtained opinion of the District Government Counsel to ascertain the implication of the order dated 31st Aug., 1976. The District Government Counsel, submitted his opinion in writing to the Administrator on 2nd. Nov., 1976, which is on the record of the Bank's file. In that opinion the District Government Counsel clearly stated that since the order of dismissal has been stayed by the High Court, the order of suspension shall not revive but in case the writ petition is dismissed the interim order shall automatically come to an end. He further advised the Bank that the matter may be referred to the U. P. Co-operative Institutional Service Board and after obtaining prior approval of the Board services of S. P. Agarwal may be terminated afresh, and if in the meantime he comes to the Bank he may be allowed to attend and work. But the Administrator did not allow S. P. Agarwal to resume his duties.

11. On 9th November, 1976, R. R. Upadhya, Administrator himself addressed a letter to the Registrar (Law) giving details of the ease of S. P. Agarwal and after referring to the interim orders of this Court he stated that the High Court had by its order dated 20th October, 1976, directed that S. P. Agarwal should be paid his full salary as and when due. He further referred to the opinion of the District Government Counsel and stated that if fresh orders of removal were to be passed after obtaining the approval of the Institutional Board, S. P. Agarwal would be entitled to his full salary as the order of suspension could not be given effect to with retrospective effect. This letter clearly proves that there was no misconception or misunderstanding in the mind of R. R. Upadhya about the implications of the orders of this Court dated 31st August. 1976, and 20th October, 1976, On 20th November, 1976, S. P. Agarwal made another application to the Administrator for the payment of his salary. On that application, S. N. Tewari, the Secretary of the Bank passed order that suspension allowance may be paid to S. P. Agarwal as consequent to the stay orders of the High Court he was a suspended employee. This order was contrary to the legal opinion of the District Government Counsel as well as the advice of Sri Vijai Bahuguna, Advocate of this Court. There is thus ample evidence to show that the Administrator and the Secretary both acted contrary to the legal advice given by their counsel and they deliberately withheld payment of salary to S. P. Agarwal in an unjustified manner.

12. The contemners' plea that the stenographer of this Court had wrongly transcribed the order of this Court as a result of which a direction for the payment of salary was included instead of the suspension allowance in the order of this Court dated 20th October, 1976, is without any substance. In their affidavits filed in the contempt petition both the contemners have asserted that the stenographer of this Court wrongly recorded the order of this Court. In their oral testimony before us both the contemners have admitted that none of them was present before the Court when the order dated 20th October, 1977, was passed. They have further admitted that there is nothing on the record or on the Bank's file to show that the stenographer, who is an officer of this Court, had wrongly transcribed the order. On the other hand, Sri Vijai Bahuguna, who was the Bank's counsel and who appeared before the Bench of this Court on 20th October, 1976, had himself by his letter dated 25th October. 1976, given correct information to the Administrator advising him to pay full salary as directed by the Court. In that letter Sri Bahuguna did not even whisper or suggest that any mistake or inaccuracy had occurred in the order. In these circumstances, the contemners had no justification to make the allegations against an officer of this Court. During their oral testimony before us both the contemners have given no satisfactory explanation for the reckless allegation made against the stenographer of this Court. If a litigant makes unfounded allegations against an officer of the Court which reflects adversely on the working of the Court, that action of the litigant would amount to contempt of Court. In the instant case, the contemners allegation in substance amounts to that the Court had directed for the payment of subsistence allowance. Yet the stenographer had written the word salary and the direction had wrongly been issued by this Court. As already noted the contemners had no justification for making this kind of wild allegation against an officer of this Court. In our opinion they are guilty of gross contempt of this Court on this ground also.

13. Both the contemner have given false and inconsistent statements on this question. In their affidavits in reply to the contempt petition they have sworn paragraph 9 of their affidavit on the basis of perusal of record. During their oral examination we asked them to place the record before us on the basis of which they made allegation in para 9 of their affidavit against an officer of this Court, but they could not produce or point out any record. On the other hand, the record as maintained in the Bank which contained the letter of Sri Vijai Bahuguna clearly indicates the implication and the contents of the order of this Court. It is a matter of great regret that responsible officers drawing high salary should have behaved in this fashion, as the contemners have done, in making wild allegations against an officer of this Court without there being any justification for the same.

14. R. R. Upadhya in his testimony stated before us that on 6th December, 1976, he had complied with the order of this Court dated 20th October. 1976, inasmuch as he had issued orders on that day for the payment of salary to S. P. Agarwal, and after the issue of that order his responsibility ceased in the matter. In our opinion he again perjured. On 20th Nov. 1976, S. P. Agarwal made an application for payment of his salary; on that application the Secretary put up a note to the Administrator that S. P. Agarwal was entitled to suspension allowance only consequent to the orders of the High Court as the position of S. P. Agarwal remained that of a suspended employee. On the note of the Secretary, R. R. Upadhya,. Administrator passed an order 'Take necessary action as required by High Court's order.' This order of the Administrator dated 6th December, 1976, was for the payment of suspension allowance and not for payment of full salary as directed by this Court. In their affidavits R. R. Upadhya and S. N. Tewari both have stated that S. P. Agarwal was not entitled to full salary, instead he was entitled to suspension allowance. Further on 17th April, 1977, the Secretary submitted a note to the Administrator which contained a proposal for the payment of subsistence allowance to S. P. Agarwal for the period 11th June, 1976 to 10th Feb.,1977. R. R. Upadhya, Administrator, passed an order in writing approving that proposal. In the circumstances, the statement of R. R. Upadhya that he had passed orders on 6th December, 1976, for the payment of full salary to S. P. Agarwal in compliance with the orders of this Court is totally misleading and false.

15. In view of the above discussion, we hold that R. R Upadhya and S. N. Tewari both are guilty of wilful disobedience of the orders of this Court dated 20-10-1976.

16. The other charge against the contemner is that they deliberately flouted the order of this Court dated 19-5-1977. There is no dispute that the contemners did not comply with the order of this Court dated 19-5-1977. Both the contemners have pleaded that their counsel did not appear before the Court at the time when the order dated 19th May, 1977, was passed. In the first place, this plea is devoid of any merit as the order of this Court dated 19th May, 1977, expressly states that the counsel for the parties were heard. But even assuming that the Bank's counsel did not appear to make his submissions before the Bench, on 19th May, 1977, the order of the Court could not be disobeyed on that ground. The Bank and the Administrator who were parties to the writ petition were under a legal obligation to comply with the order of this Court even if their counsel had not appeared before the Court, Absence of the counsel cannot be a justification for flouting the orders of this Court, specially in the present case where both these contemners have been persistently disobeying the orders of this Court since October, 1976, on one pretext or the other.

17. The contemners have further raised a plea in their defence that their counsel advised them to file appeal before the Supreme Court against the order dated 19th May, 1977 and not to make payment of salary to S. P. Agarwal, instead to deposit the amount payable to him in the Supreme Court. As noted earlier an application under Article 136 of the Constitution was filed before the Supreme Court on 5th June, 1977, but that appeal was neither heard nor any orders were passed by the Supreme Court. In the absence of any orders passed by the Supreme Court staying the direction contained in the order of this Court dated 19th May, 1977, the contemners had no, justification to disregard that order. A mere filing of the appeal under Article 136 of the Constitution before the Supreme Court against any order of this Court cannot be a justification for disobedience or non-compliance of the orders of this Court. Of course the position would be different if the Supreme Court takes cognizance of the appeal and passes any positive order of stay. There is no dispute that the Supreme Court had not taken cognizance of the appeal filed under Article 136 of the Constitution and no orders had been passed staying the operation of the order of this Court

18. There was no justification for the contemners to deposit the salary in the Supreme Court. There is no opinion in writing by any counsel advising the Bank or the Administrator not to pay salary to S. P. Agarwal or to deposit the same before the Supreme Court along with the memo of appeal filed under Article 136 of the Constitution. The contemners' plea for taking shelter behind legal advice is without any foundation. But even assuming that any such advice was given to the contemners that would not be a valid ground for the disobedience of the orders of this Court. If a counsel advised a litigant not to obey the orders of a Court of law such an ill advice of counsel cannot be a valid defence in contempt proceedings. It is the duty of each and every person who is a party in a proceeding before a court to comply with the orders of the court and if he has any grievance against the order he is free to file appeal or to make application before that court for modification or discharge of the same, but unless that order is stayed, varied or modified the party concerned has no justification to flout the order of the Court. It is noteworthy that both the officers acted contrary to the legal advice as tendered to them by the District Government Counsel, Bijnor, as well as by the Bank's counsel Sri Vijai Bahuguna and in spite of their advice they did not pay salary to S. P. Agarwal as required by this Court's order dated 20th Oct. 1976. Their conduct makes it amply clear that the plea of legal advice for not complying with the order of this Court dated 19th May, 1977 appears to be an afterthought raised for the purpose of creating a defence in these proceedings.

19. There is yet another circumstance which shows that the contemners had been advised by the District Government Counsel to comply with the order of this Court dated 19-5-1977 and to pay salary to S. P. Agarwai. After the issue of this Court's order dated 19-5-1977, S. N. Tewari, Secretary, under the directions of the Administrator, solicited the advice of the District Government Counsel, Bijnor, in writing. In that note the District Government Counsel was required to give his opinion as to the period for which salary should be paid to S. P. Agarwal. A copy of the order of this Court dated 19th May, 1977, was enclosed for the perusal of the District Government Counsel. On 29th May, 1977, the District Government Counsel submitted his opinion in writing stating that the entire arrears of salary of Agarwal should be paid to him before 15th June, 1977. In view of this opinion of the District Government Counsel there appears to be no reason whatsoever for the Administrator or the Secretary not to pay salary to S. P. Agarwal as directed by this Court. It appears that both these officers were interested in flouting the orders of this Court on some pretext or the other and for that reason they approached another counsel of this Court during the summer vacation when the High Court was closed for making an ap- plication or taking some proceedings so that the Bank may not be forced to comply with the orders of this Court. This is clear from their subsequent conduct.

20. In his oral testimony before us S. N. Tewari has stated that as the Secretary of the Bank, he had taken all steps for the payment of the salary but the Administrator did not pass any order for the payment of salary and he could not be held guilty for the disobedience of the orders of this Court. We find no substance in the plea raised by S. N. Tewari. In the first place, he had been appointed as Secretary on the dismissal of S. P. Agarwal. so he was interested in keeping S. P. Agarwal out of the Bank, and for that reason S. P. Agarwal was not allowed to join his duties. Whenever S. P. Agarwal made an application for payment of salary as directed by this Court. S. N. Tewari enclosed a note that S. P. Agarwal was entitled to subsistence allowance even though the District Government Counsel and Sri Bahuguna had clearly advised the Bank and the Administrator to pay full salary of S. P. Agarwal. This would be clear from Tewari's note dated 4th Dec, 1976, recorded on the application of S. P. Agarwal dated 20th Nov., 1976. Further when the services of S. P. Agarwal were again dispensed with on 10th Feb., 1977, after obtaining prior approval of the Institutional Board, S. N. Tewari submitted a note to the Board containing the proposal that S. P. Agarwal be paid subsistence allowance for the period 11th June, 1976, to 10th Feb., 1977. In that note he asserted that in view of the orders of the High Court. S. P. Agarwal was entitled to subsistence allowance. The Administrator accepted the proposal made by S. N. Tewari and thereupon subsistence allowance was offered to S. P. Agarwal who refused to accept the same. The documents available on the record of the Bank file clearly show that S. N. Tewari was wilfully taking steps and placing proposals before the Administrator which were in violation of the orders of this Court and which were also contrary to the legal advice tendered by the District Government Counsel and the counsel of the Bank. This clearly indicates that S. N. Tewari wilfully took steps to disobey and disregard the orders of this Court. We are satisfied that the Administrator and the Secretary both colluded in disobeying the order of this Court dated 19th May, 1977 and they have committed gross contempt of this Court and they deserve punishment for the same.

21. During the course of hearing of contempt matters the contemners paid the salary to S. P. Agarwal and they tendered unqualified apology. Learned Counsel for the contemners urged that since the payment of salary was made on 7th Nov., 1977, and as the contemners have tendered unqualified apology this Court should take a lenient view and no action should be taken against them. It is true that apology is an act of contrition. When a j contemner tenders apology as an act of contrition the Court must weigh that lapology and in awarding the punishment the Court must consider the apology tendered by the contemner. If the apology is found to be an act of contrition, no action need be taken but if the apology is used as a weapon to escape the consequences of contemners' action, the apology must be rejected. In Mulk Raj v. State of Punjab. : 1972CriLJ754 the Supreme Court observed (at p. 755 of Cri LJ) :

Apology is an act of contrition. Unless the apology is offered at the earliest opportunity and in good grace the apology is shorn of penitence and hence is liable to be rejected. If apology is offered at a time when the contemner finds that the Court is going to impose punishment it ceases to be an apology and becomes an act of a cringing coward.

In view of the above observation of the Supreme Court, we think it necessary to consider the question of acceptance of apology.

22. As already noted, the contemners did not comply with the order of this Court dated 20th Oct., 1976, in spite of repeated reminders by S. P. Agarwal. On 10th Feb., 1977, S. P. Agarwal filed contempt application No. 23 of 1977 for punishing the two contemners for the disobedience of the orders of this Court dated 20th Oct., 1976. On 31st March, 1977, notices were issued to the contemners. Notice of the contempt application was served on the contemners but even thereafter they did not care to comply with the order of the Court. As the contemners did not comply with the order of this Court dated 19th May, 1977, another application No. 12389 of 1977 was filed by S. P. Agarwal under Article 215 of the Constitution for taking action against the contemners for the disobedience of the said orders. On 28th July, 1977, notice was issued to R. R. Upadhya. Even at that stage the contemners did not care to comply with the order of this Court, instead they raised various unfounded pleas in their counter-affidavits and made all efforts to justify their action in not complying with the order of this Court, the details of which have already been discussed above. When the two contempt applications came up for hearing before us, we took a serious view of the matter, but even at that late stage the orders of this Court were not complied by contemners. On the other hand, they sought adjournments for obtaining stay order from the Supreme Court in the special leave petition which the. Bank had filed. We granted the adjournment. Ultimately, when the case was taken up on 7th November, 1977 we were informed by the counsel for the parties that the Bank did not press its appeal before the Supreme Court as a result of which it was dismissed. These facts show that the contemner had made persistent efforts to justify their conduct and they had no feeling of remorse nor they were willing to comply with the order of this Court. After the withdrawal of the Supreme Court Appeal when we proceeded further and examined the contemners it became clear to them that we have taken a serious view of the matter and they were likely to be punished for their conduct, thereupon they tendered apology before us and prayed for the mercy of the Court.

23. In his counter-affidavit filed in contempt petition No. 12389 of 1977 R. R, Upadhya had no doubt expressed regret and tendered apology and in the counter-affidavit filed in Contempt Petition No. 23 of 1977 R. R. Upadhya while defending his action has also expressed regret and tendered apology in his affidavit which was filed in July, 1977. From a careful scrutiny of the contemners' conduct and their wilful disobedience of the orders of this Court on one pretext or the other it is crystal clear that steps were taken by them for the payment of salary to S. P. Agarwal as late as on 7-11-1977 when it had become apparent that the defence taken by them was unacceptable and their position had become precarious. As discussed earlier, both the contemners have taken wrong pleas and have perjured themselves on more than one occasion which shows their attitude of mind. They have not been candid in their conduct or truthful in their testimony. Having regard to these facts and circumstances we are of the opinion that the apology tendered by them is not an act of contrition, instead they have used it as a weapon to escape the consequences of the present proceedings. In the circumstances, we do not consider it proper to accept the apology tendered.

24. We are therefore of the opinion that R. R. Upadhya and S. N. Tewari both are guilty of wilful disobedience of the orders of this Court and they are further guilty of making reckless allegations against an officer of this Court which has a tendency of lowering down the prestige of this Court. We, therefore, hold that the contemners are guilty of contempt of this Court for which they deserve punishment.

25. Both the contemners are therefore sentenced to pay a fine of Rs. 1000/-(Rupees one thousand) each payable within six weeks from today, or in default, to undergo one month's simple imprisonment. The contemners shall also pay costs of these proceedings to S. P. Agarwal which we assess at Rs. 300/-.


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