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Deben Adhicary Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectContempt of Court
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 2442 (W) of 1967
Judge
Reported inAIR1972Cal84
ActsContempt of Courts Act, 1952 - Section 3
AppellantDeben Adhicary
RespondentState of West Bengal and ors.
Appellant AdvocateC.R. Dutt, Adv.
Respondent AdvocateSomnath Chatterjee, ;Naranarayan Gooptu, ;S.K. Dutt, ;B.N. Sett and ;Sinil Mukherjee, Advs.
DispositionPetition dismissed
Cases ReferredBurma Prasad v. State of U. P.
Excerpt:
- .....nos. 7 to 24 and the metro engineering works private limited workers union, represented by shri asoke kumar bose being respondent no. 25, to show cause as to why a writ in the nature of mandamus should not be issued directing the respondents nos. 1 to 6 to discharge their statutory obligations in protecting the rights of the petitioner and why a writ in the nature of certiorari should not be issued to quash the relevant records connected with illegal obstruction, trespass and demonstrations carried on by the members of the aforesaid union.2. there was also an interim order in the following terms:--'an interim order of injunction restraining respondents nos. 7 to 24 from preventing the petitioner, his servants and agents 'from carrying on any trade or business, ingress to or egress.....
Judgment:
ORDER

K.L. Roy, J.

1. Much of the sting has been taken away from this Contempt proceeding by the passage of time. The petitioner and his wife are the sole share-holders and Directors of Metro Engineering Works Private Limited which has its office and factory at No. 38 Kansaripara Road within the Bhowanipore Police Station. It is alleged that in June 1967, the workers of the aforesaid Company 'gheraoed' the supervising staff on several occasions and also staged a 'gherao' at the residence of the petitioner, and in spite of repeated requests, the Police authorities failed to take any action in regard thereto. On the 19th July, 1967, in an application under Article 226 of the Constitution, the petitioner obtained from this Court a Rule, viz., C. R. 1285 (W)/67 calling upon the State of West Bengal some officials of the State, the Commissioner of Police and the Officer-in-charge Bhowanipore Police Station being respondents Nos. 1 to 6 and 17workers being respondents Nos. 7 to 24 and the Metro Engineering Works Private Limited Workers Union, represented by Shri Asoke Kumar Bose being respondent No. 25, to show cause as to why a Writ in the nature of Mandamus should not be issued directing the respondents Nos. 1 to 6 to discharge their statutory obligations in protecting the rights of the petitioner and why a Writ in the nature of Certiorari should not be issued to quash the relevant records connected with illegal obstruction, trespass and demonstrations carried on by the members of the aforesaid Union.

2. There was also an interim order in the following terms:--

'An interim order of injunction restraining respondents Nos. 7 to 24 from preventing the petitioner, his servants and agents 'from carrying on any trade or business, ingress to or egress from the said office premises at 38 A, Kansari-para Road, Calcutta, or obstructing movement of goods to and from the said premises or from committing assault or trespass at the said premises and restraining the said respondents from calling upon other workers and employees of your petitioner's company to join in any of the said unlawful activities.'

3. There was a further Interim order directing the respondents Nos. 5 and 6, the Commissioner of Police and the Officer-in-charge Bhowanipore Police Station to provide for such assistance as the petitioner might need for removal of petitioner's manufactured goods from his factory at 38 A, Kan-saripara Road, Ehowanipore, Police Station. Liberty was given to the petitioner to serve the respondents Nos. 7 to 24 at the factory site at 38A Kan-saripara Road, Calcutta-25.

4. It is claimed in the present petition that the aforesaid interim order of injunction was duly communicated to the respondents Nos. 7 to 25 by the petitioner's Advocate on the 19th July, 1967. It is further alleged that on the 28th July, 1967, the petitioner's authorised representative accompanied by the Sub-Inspector of Police Bhowanipore Police Station went With 2 Lorries and 18 Coolies to take delivery of the petitioner's manufactured goods from the aforesaid factory where they were obstructed by the said Ashoke Kumar Bose, the President of the aforesaid Union and some of the Workers including the respondents Nos. 7 to 24 and the said Asoke Kumar Bose forced Niranjan Choudhury, the representative of the petitioner, to write a statement and to retire with the Lorries and the Coolies. It is further alleged that the said Niranjan Choudhury recorded the aforesaid facts in a letter to the Officer-in-charge of the Bhowanipore Police Station on the same date. It is further alleged that the said Asoke Kumar Bose wrote a letter to the Labour Commissioner, Government of West Bengal on the 25th July, 1967, referring therein to a press news which had appeared in 'The Statesman' on the 21st July, 1967 that an injunction had been issued on the workers restraining them from trespassing, demonstrating and indulging in acts of violence or threatening the officers of the company with assault or preventing them from carrying on their trade or business. It is submitted that in spite of his knowledge of the prohibitory order issued by this Court on the 19th July, 1967, the said Asoke Kumar Bose and his associates being the respondents Nos. 7 to 24 deliberately disobeyed the orders of this Court by preventing the petitioner's Lorries from entering the Factory premises and driving the said Lorries away by a threat of dire consequences. It is further alleged that the said Asoke Kumar Bose aided, abetted and incited the respondents Nos. 7 to 24 to unlawfully remain in the said premises and to cause obstruction to the execution of this Court's order.

5. On this petition a Rule being C. R. 2442 (W) of 1967 was issued bv this Court on the 6th December, 1967, calling upon the opposite parties Nos. 7 to 13 and 15 and 25 to show cause why they should not be dealt with for contempt for the alleged violation of the Court's order dated the 19th July, 1967, in Civil Rule 1285 (W) /67 or why such other or further order or orders made as to this Court may seem fit and proper.

6. As there was some dispute, as to whether Asoke Kumar Bose was one of the persons against whom the aforesaid Rule had been issued, at the time that Rule was attempted to be served on him, by an order from this Court it was directed that the Rule obtained as against Respondent No. 25 stood discharged and Asoke Kumar Bose was added as respondent No. 26.

7. In response to the Rule issued on the respondents by the order dated 6th December 1967 as modified by order dated 8th December 1969 as mentioned above the respondents other than the added respondent No. 26 have appeared, shown cause and have taken up a common attitude, namely that in doing what they did they had been influenced by Shri Asoke Kumar Bose who was the President of their Union and they did not realise that they were wilfully disobeying the ordersof this Court and that they had acted believing the representations made by the said Asoke Kumar Bose. All the respondents against whom the Rule was issued (excepting respondent No. 26) have tendered unqualified apology to this Court and have prayed for being treated leniently. On enquiry I, find that these respondents have been taken back in their jobs and they are at present working under the petitioner and that possibly explains their change of attitude. As the main contest now is against the respondent No. 26, nobody is taking any objection to the apology being accepted by this Court. The unqualified apology tendered on behalf of the other respondents is therefore accepted. The Rule obtained by the petitioner against the respondents Nos. 7 to 24 is discharged. There will be no order for costs.

8. This brings me to the main contest. In his affidavit-in-opposition Shri Asoke Kumar Bose has denied the allegations in the petition that on 28th July, 1967 he refused to allow the petitioner's representative and the Lorries with the Coolies to enter into the said Factory premises or to take away any of the manufactured goods stored therein. He also denied that he had used any threat of violence or that he had forcibly extracted any statement from the petitioner's representative Niranjan Choudhury. He however admits that he was inside the Factory premises between 8-30-9-30 a.m. on that date. He further avers that instead of threatening Niranjan Choudhury he rather escorted him to safety outside the Factory premises from the threat of physical violence from the other workers and that the said Niranjan Choudhury voluntarily made a statement to the Sub-Inspector of Police who was also present. So far as the notice of the order of injunction of this Court appearing in 'The Statesman' is concerned, this respondent states that on seeing that report he wrote to the Labour Commissioner, Government of West Bengal in discharge of his duties as the President of the Union for the intervention of the Government for obtaining redress of the grievances of the workers.

9. In this state of the affidavits I suggested that the matter do stand to trial on evidence so that the allegations and the counter-allegations might be decided. The learned Counsel for the petitioner, however, submitted that the matter should be decided on the affidavits and on the facts on the record, and no expensive litigation involving taking down of oral evidence of several witnesses should be undertaken in the circumstances of the case. He submitted that on the affidavits it is clear that on the 21st July, 1967, the respondent Asoke Kumar Bose had knowledge from the notice published in 'The Statesman' that an order of injunction had been passed by this Court restraining the workers of the petitioner's company from trespassing, demonstrating and indulging in acts of violence of threatening the officers of the company with assault or preventing them from carrying on their duties. If in spite of the aforesaid knowledge the petitioner aided and abetted the other respondents in deliberately disobeying the order of this Court, he should be found guilty of contempt and should be dealt with accordingly.

10. Mr. Chatterjee, the learned Counsel for respondent No. 26, has pointed out that when an order of injunction against respondents Nos. 7 to 24 was obtained from this Court on the 19th July, 1967 the respondent Asoke Kumar Bose was not a party to the Rule. Again when the alleged act of contempt was committed on the 28th July 1967, neither was the said respondent a party to the proceedings nor was any notice of the order of the Court served on him. It was only on the 31st August, 1967, that the petitioner's Advocate informed him of the order of this Court dated the 19th July 1967. Even on the 6th December 1967 when the Rule for contempt was obtained this respondent was not made a party respondent, but only the union as represented by him was made a party respondent. It was only subsequently that the cause title of the application was amended by making Asoke Kumar Bose as respondent No. 26 after discharging the Rule obtained against the respondent No. 25 which was represented by said Bose as a trade union leader. Mr. Chatterjee has submitted that it is now well-established that a proceeding for committal for contempt for disobedience of the order of this Court cannot be made against a person who was not a party to the proceedings in which the order was made and on whom no notice of the order was served. For this proposition he relied on the case of Tarafatullah Mandal v. S.N. Maitra reported in : AIR1952Cal919 . There the question was whether a contempt proceeding could be maintained against certain officials of the Government for disobedience of an order passed in a matter in which the Government was a party, but the officers concerned were individually not made parties. In that case P.B. Mukharji J. (as his Lordship then was) made the following observations:

'It is, however, always essential even in India that an individual or an officer who is not a party to the proceeding resulting in the order alleged to have been disobeyed but who is sought to be proceeded against in contempt, must be served with a copy of the order or judgment to be enforced. It is proper course in my opinion, to insert the names of the individuals or the officer in the Rule Nisi and to serve it on him specifying the nature of the contempt with which the individual or officer served is charged.

Before a proceeding for contempt can succeed, it is of paramount importance to establish first, the service of the order of the Court said to have been disobeyed upon the person alleged to have committed contempt thereof, secondly the precise act of contempt, thirdly -- the precise responsibility of the contemrier in the act of contempt, and fourthly the date of the alleged contempt being subsequent to the service of the order said to have been disobeyed. These are the four indispensable requisites and failure to establish any one of them must mean dismissal of the petition for contempt'.

11. It must be accepted that the first and the last of the aforesaid conditions are not satisfied in the present case, namely that the order dated the 19th July, 1967 was not served on respondent No. 26 and that the alleged act of contempt was anterior to the service of the order. In this case the order was only communicated to the said respondent by the petitioner's Advocate on August 31, 1967 even though the alleged act of contempt was committed on the 19th July, 1967. Not only is this decision binding on me, it has also my respectful concurrence. A. N. Ray, J. (his Lordship as he then was) had considered this question in the case of Sri Sri Iswar Mitto Gopal Jew v. Ahgur Bala Mullick reported in 70 Cal WN 1150 where his Lordship observed that the foundation of an application for contempt is personal service of the order alleged to have been violated unless it could be shown that he was evading service, and his Lordship relied on the aforesaid decision of the Division Bench.

12. Mr. Chatterjee has argued that even assuming that the respondent No. 26 could be charged with contempt on the ground that he had knowledge ali-unde of the prohibitory order of this Court, it has not been established that he had committed any act of trespass. The allegations in the petition charge him with definite acts of disobedience of the order and the only allegation of aiding and abetting is that of inciting the other respondents in threatening the representative of the petitioner. It la submitted that a proceeding for contempt being a quasi-criminal proceeding a strict degree of proof is necessary in order to punish a person for such conduct.

13. Reliance has been placed on a decision of the Supreme Court in the case of Debabrata Bandopadhyaya v. State of West Bengal reported in : 1969CriLJ401 where it has been observed as follows:

'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 allowance 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 contemner must be punished.'

14. It is submitted that in this case the respondent No. 26's contention is that he was present at the factory premises on the material date as the President of the Union to protect the interests of the workers. This seems to be supported by his communication to the Labour Commissioner. In the absence of any oral evidence establishing that there was any act of trespass, it is very difficult to say if there was any violation of the prohibitory order of this court by respondent No. 26 by committing trespass in the petitioner's factory.

15. Mr. C. R. Dutt, the learned Counsel for the petitioner, has referred me to Halsbury's Laws of England (Third Edition) Volume 8, page 21. where it has been stated:

'Strangers to actions. A stranger to an action who aids and abets the breach of a prohibitory order obstructs the course of justice, and this contempt is punishable by committal or attachment. The punishment is inflicted, not for a technical infringement of the order, but for aiding and abetting others in setting the court at defiance.'

16. Certain authorities in support of the above proposition as set out in Halsbury was also cited by Mr. Dutt. I do not think that anybody would challenge the legal proposition set put therein that a stranger would be liable for contempt if he deliberately obstructs the course of Court's justice by aiding and abetting others. He would certainly be liable for contempt, but before he could be so committed, it must be proved that the order complained of had been served on him or he had knowledge otherwise of thecontents of that order and that he had deliberately chose to flout the order in order to obstruct the course of justice. In this case, as I have already pointed out, in the absence of oral testimony, it is not possible for me to determine whether there was actual and wilful disobedience to the orders of this Court. The other authority cited by Mr. Dutt is a passage from the Supreme Court in the case of Burma Prasad v. State of U. P. reported in : 1968CriLJ1514 , where in paragraph 10 their Lordships quoted with approval an observation of a previous decision reported in : AIR1962SC1089

'In order to justify committal for breach of a prohibitive order it is not necessary that the order should have been served upon the party against whom it has been granted, if it be proved that he had notice of the order aliunde, as by telegram or newspaper report, or otherwise, and knew that it was intended to be enforced, or if he consented to the order, or if he was present in Court when the order was pronounced, or when the motion was made although he left before the order was pronounced.'

17. But the above observations were made in respect of a person who was a party to the proceeding. It has no application to a stranger. In the case of a stranger the knowledge of or notice of the prohibitory order must be established to the satisfaction of the Court in order to establish that the person concerned had deliberately chose to flout the order of the Court in order to obstruct the course of justice.

18. As I am not satisfied in this case that the respondent No. 26 was deliberately obstructing the prohibitory order made by this Court after having had knowledge of its passing, I must hold that this Rule as against respondent No. 26 must be discharged, and it is ordered accordingly. There will be no order for costs.

19. In the result this Rule is discharged as against all the respondents against whom it was issued. There will be no order for costs.


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