Skip to content


H.S. Butalia and ors. Vs. Subhash Kumar Saksena and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1974CriLJ828
AppellantH.S. Butalia and ors.
RespondentSubhash Kumar Saksena and ors.
Cases ReferredSupreme Court Mulkh Raj v. State of Punjab
Excerpt:
- b.c. mitra, j.1. this appeal is directed against a judgment and order dated may 24, 1972, whereby the appellants were held guilty of contempt of court and were sentenced to pay a fine of rs. 100/- which, however, was remitted by reason of the verbal unqualified apology tendered on their behalf. but they were directed to pay the costs of the application which were assessed at twenty gold mohurs. as the facts involved in this appeal and in f.m.a. no. 518 of 1972 are the same, and as one judgment was delivered to cover both the applications, for contempt, this judgment will cover both the appeals mentioned above.2. the respondents were appointed higher grade clerks under the andaman and nicobar administration, on deputation. their present department was the home department of the uttar.....
Judgment:

B.C. Mitra, J.

1. This appeal is directed against a judgment and order dated May 24, 1972, whereby the appellants were held guilty of contempt of Court and were sentenced to pay a fine of Rs. 100/- which, however, was remitted by reason of the verbal unqualified apology tendered on their behalf. But they were directed to pay the costs of the application which were assessed at twenty gold mohurs. As the facts involved in this appeal and in F.M.A. No. 518 of 1972 are the same, and as one judgment was delivered to cover both the applications, for contempt, this judgment will cover both the appeals mentioned above.

2. The respondents were appointed Higher Grade Clerks under the Andaman and Nicobar Administration, on deputation. Their present department was the Home Department of the Uttar Pradesh Government. The respondent Hari Shankar Pant in F.M.A. 518 of 1972 was originally appointed as a clerk in the Office of the Secretary, Board of High School and Intermediate Examination, and thereafter having been successful in a competitive examination, he was appointed a lower Division Assistant, in the office of the Home Secretary, Uttar Pradesh Government on April 4, 1969, Subhas Kumar Saksena the respondent in F.M.A. No. 519 of 1972 was appointed a Lower Division Assistant on May 21, 1955, in the Home Department of Uttar Pradesh Civil Secretariate. The Andaman and Nicobar Administration (hereinafter referred to as the Administration) addressed a letter to the Chief Secretary of the Uttar Pradesh Government dated September 28, 1964, requesting the services of a few experienced and efficient Upper Division Clerks, for appointment on deputation basis, as Higher Grade Clerks in the various offices of the Administration.

3. By an order dated July 22, 1965, the Uttar Pradesh Government placed the services of the two respondents at the disposal of the Administration, as both the respondents had opted to work on deputation on the terms mentioned in the Administration's letter on September 28, 1964. Accordingly both the respondents joined as Higher Grade Clerks in the Administration with effect from July 29, 1965. According to the respondents they were assured by the Administration that they would be permanently absorbed in the service of the Administration.

4. On September 4, 1971, the Administration passed an order reverting the respondents to their parent office namely Government of Uttar Pradesh, Lucknow, with effect from the date of sailing T.S.S. State of Bombay, Ex Port Blair for Calcutta on or about September 15, 1971. Both the respondents were directed to report for duty to the Assistant Secretary, Government of Uttar Pradesh, Home (Police--E) Department, Lucknow, after availing themselves of the joining time as admissible on transfer. Thereafter the respondent Pant was relieved of his duties under the Administration with effect from September 15, 1971 and the respondent Saksena was similarly relieved from his duties with effect from September 13, 1971.

5. Aggrieved by the order of reversion both the respondents filed writ petition in this Court challenging the order of reversion dated September 4, 1971 and the two orders dated September 13, and September 15, 1971, whereby they were relieved of their duties under the Administration. The writ petition was moved on September 22, 1971, and on the same day a Rule nisi was issued in both the petitions and an ad interim order was made in terms of prayer (f) of the petition which was as follows:

For an interim injunction restraining the respondents and/or their agents and servants from giving effect to or any further effect to the impugned orders made annexure (A-l, 'X' and 'K' in C. R. 6362 (w) of 1971 and 'N' and 'O' in C. R. 3263 (w) of 1971) respectively to this application and reverting and/or relieving the petitioner from his present posting as High Grade Clerk in the Scale of Rs. 130-300/- in the office of the Chief Commissioner's Secretariat, Port Blair (in case of Hari Shankar Pant) in the office of Andaman Public Works Department (in case of Subhas Kumar Saksena) and further directing the respondents to allow your petitioner to continue as a Higher Grade Clerk in the scale of Rs. 130-300/- under the Andaman and Nicobar Administration in the Chief Commissioner's Secretariat. Port Blair till the disposal of the Rule.

The learned Advocate of the respondents by his letter of September 22, 1971, communicated the ad interim order made by this Court to the appellants. On September 24, 1971, both the respondents reported for duty in the office of the Chief Secretary of the Administration when they carried with them a written representation . addressed to the Chief Secretary together with a copy of a letter of their Advocate dated September 22, 1971.

6. The respondent's case is that in spite of the ad interim injunction issued by this Court and in spite of communication of the same by the letter of their Advocate mentioned above, they were not allowed to resume their duties on September 24, 1971. On the next day the respondents were served with a memorandum from the Assistant Secretary of the Administration by which the respondents were informed, that intimation from this Court regarding the Rule issued and the Order made on the writ petition was awaited for compliance. It was added that the Administration would be most willing to comply with the order of this Court both, in letter and spirit, as soon as an authorised copy of the order was received. The memorandum concluded by saying that till the receipt of the order the status quo must remain.

7. On September 27, 1971, the respondents again made representations to the Administration that certified copy of the order of this Court could not be procured as this Court was closed for the long vacation. This was followed by a letter dated October 8, 1971 from the learned Advocate of the respondents to the appellant No. 1, intimating that communication of an order of this Court by letter of the Advocate was always accepted as an authentic report, and requesting that the respondents should be allowed to resume their duties in compliance with the order mentioned above. This was followed by some communication from the respondents for payment of their salary. On October 27, 1971, the Administration made an application for vacating the interim order mentioned above before the Vacation Bench of this Court. This application was disposed of on January 14, 1972, by an order vacating the ad interim order mentioned above. The operation of the order, however, was stayed. This completes the narration of events.

8. As the respondents were not allowed to resume their duties in spite of the ad interim order made by this Court both of them moved two separate applications for punishment of the appellants for contempt of court. Rule nisi was issued and this Rule was made absolute by the judgment and order under appeal.

9. In the affidavit-in-opposition filed on behalf of the appellants apology was tendered in the following terms:

That before I proceed to deal with the statements made and/or contention raised in the petition paragraphwise, I say that it is far from our intention to violate the order of this Hon'ble Court. I and the other respondents have not wilfully disobeyed and/or disregarded the order of the interim injunction as issued on 22nd September, 1971. I and the other respondents did not act contumaciously and I and the answering respondents did not disobey the order dated 22nd September, 1971, as passed by this Hon'ble-Court as alleged. If it appears to this Hon'ble Court that there has been a violation of the interim order of the injunction as issued by this Hon'ble Court on 22nd' September, 1971 either by the deponent or by any of the answering respondents or jointly, I hereby tender unqualified apology to this Hon'ble Court for such violation and I being also specifically authorised by the other answering respondents offer similar apology on their behalf and pray that our apology be accepted.

The principal contention of the appellants in this appeal is that in, answer to a circular dated September 28, 1964, issued to the Chief Secretaries of all State Governments, requesting the services of experienced Upper Division Clerks on deputation basis, the candidature of the respondents was sponsored by the U. P. Government, and the respondents were appointed as Higher Grade Clerks on deputation basis for a period of three years in the first instance with effect from July 29, 1965, on the terms and conditions laid down in a letter of the Administration dated September 16, 1965. It is denied that there was any possibility of the respondents' permanent absorption in the service of the Administration as a condition of deputation. The other contentions raised in the affidavit-in-opposition are as follows:--

(a) On 2-11-68 the respondents on their own accord applied for permanent absorption under the Administration and while this was under consideration, the Government of India by its letter of 4-6-69 intimated the Administration that appointments to Class III and Class IV posts under the Administration should be made locally in the Islands and if suitable candidates were not available locally the Administration should obtain specific approval of the Home Ministry before making recruitment from the mainland. It was clerified that deputationists appointed against specified posts for specified period, for deputation could not be considered as local persons and they should not be permanently absorbed against Class III and Class IV posts and that if suitable candidates were not available locally, the Administration should obtain the approval of the Central Government for each individual case of permanent absorption.

(b) The case of permanent absorption of the respondents was referred to the Central Government by the Administration by its letter of 26-4-71, But this proposal was rejected by the Central Government by its letter dated 22-5-71. The matter was again referred to the Central Government by the Administration's letter of 21-6-71 by which the Central Government was requested to reconsider its earlier decision and to allow the deputationists to be permanently absorbed under the Administration. The Central Government refused to accede to the request of the Administration and directed that all deputationists should be reverted to their parent department.

(c) Thereafter the deputationists, including the respondents, made representations to the Central Government requesting their permanent absorption and these representations were forwarded to the Central Government by the Administration's letter of 5-8-1971.

(d) The respondents were informed that their representations had been forwarded to the Central Government and pending receipt of its decision, the respondents should keep themselves ready to proceed on reversion.

(e) Ultimately the Central Government did not agree to the proposal of permanent absorption and directed the Administration to take immediate action for reversion of the deputationists to their parent departments.

(f) It is only thereafter that orders were issued reverting the respondents to their parents departments and they were relieved of their duties by the two letters of September 13 and September 15, 1971.

10. Mr. A. K. putt. Counsel for the appellant commenced his arguments by tendering unqualified apology to this Court for what has been done by his clients. He submitted that apology was on behalf of his clients before the Trial Court also who had accepted the same, and had on that basis remitted the punishment. He argued, however, that without in any way detracting from or impairing the apology tendered, it should be held that the appellants were not guilty of contempt of court, as there was neither wilful defiance to the order of the Court, nor was there any contumacious conduct on the part of the appellants, which was likely to interfere with the due course of justice, or likely to offend the dignity of the Court. It was argued that the appellants were all the time eager and anxious to retain the services of the respondents in the Administration, and to that end had made diligent efforts to persuade the Central Government to agree to the absorption of the respondents in the Administration's service. He also argued that his clients had no option but to pass the order relieving the respondents of their duties, as the Central Government more than once refused to agree to the proposal of the Administration, and even refused to extend the deputation of the respondents. With regard to the letter dated September 25, 1971, which is Annexure-Y to the petition, in which it was stated that the Administration would be most willing to comply with the order of this Court both in letter and spirit, Mr. Dutt argued that the letter clearly showed that the Administration was eager to comply with and carry out the order of this Court. There was not, it was argued, the least evidence of defiance or unwillingness to carry out the order of the Court.

11. The ad interim order made by this Court on Sep. 22, 1971, restrained the respondents from giving the effect or any further effect to the order relieving them of their duties. But on the date that ad interim injunction, was issued, the respondents, had already been relieved of their duties by the two orders dated September 13, and September 15, 1971. Quite plainly the injunction orders restraining the appellants from giving effect the order had become infructuous as the order had already been made. The respondents also understood that so far as their services in the Administration were-concerned, there was a termination of the same and it is for that reason that they wrote to the Chief Secretary of the Administration-on September 24, 1971, that although they had been relieved of their duties, they were submitting a duty report. It is also clear-that the injunction so far as it restrained the appellants from giving any further effect to the orders was concerned, that also became infructuous, as on the day the order was made the respondents were already relieved of their duties and nothing further remained' to be done which could be restrained by the ad interim order of injunction. The deputation of the respondents had come to an end and under the orders of the Central Government. In the matter of the extension of the deputation or in the matter of absorption of the respondents in the service of the Administration, the appellants clearly were bound by the orders of the Central Government, which in no uncertain terms directed the appellants to put an end to the deputation of the respondents. There was no order of this; court directing the appellants to reinstate the-respondents in the service of the Administration, although the respondents stood relieved of their duties. Indeed if there was any such order of this court directing the appellants to reinstate the respondents or to re-appoint them or even to extend their deputation, there would have been some force in the argument of counsel for the respondents that there was wilful disobedience to the order of this Court.

12. Turning now to the second part of the ad interim order which directed the appellants to allow the respondents to continue as Higher Grade Clerks under the Administration till the disposal of the Rule, counsel for the appellants contended, and we think rightly, that the directions to continue the respondents postulated that there was something in existence, which could be continued. In other words, it was argued that something : which had ceased to exist could not be continued, and as the respondents' service under the Administration stood terminated, it could not possibly be continued after September 13 and September 15, 1971. It seems to us that this contention of counsel for the appellants is well founded and must be upheld. The order, as I have noticed earlier, directed the appellants to continue the respondents in the service of the Administration. But on the day the order was made, such service had already come to an end and therefore in the absence of a positive order or direction upon the appellants to reinstate or reappoint the respondents, it cannot be said that the ap-pellants by reason of their failure to allow the respondents to joint their duties under the Administration had violated the order of this Court.

13. Counsel for the respondents, however, argued that it was the duty of the appellants, after receipt of the communication from the learned advocate of the respondents, communicating the order of this Court, to allow the respondents to join their duties until further orders of this Court. It was argued that the refusal of the appellants to allow the respondents to join their duties was a gross violation of this Court's order. In the peculiar facts of this case, in which the Administration was bound by the orders of the Central Government, this contention behalf of the respondents cannot be accepted. It was not open to the appellants, having regard to the orders made on September 13, 1971 to allow the respondents to continue to discharge their duties of which they stood relieved, on the day the order of this Court was made. The appellants were not free agents in the matter of appointing the staff of the Administration, they were bound by the order of the Central Government and that position should not be lost sight of. The eagerness of the appellants to retain the service of the respondents in the Administration cannot be questioned and in relieving the respondents of their duties, it had merely given the effect to the directive issued to them by the Central Government.

14. Turning now to the question of apology it is to be noticed that apart from the written apology tendered in the affidavit-in-opposition mentioned earlier in this judgment, counsel for the appellants tendered unqualified apology to this Court at the commencement of the hearing of this appeal and also before the Trial Court. Under the Explanation to Section 12 of the Contempt of Courts Act, 1971, an apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide. We have no reason to think that the apology tendered before the trial Court and also before this Court is anything but bona fide. On the question of apology counsel for the appellants relied upon a decision of the Supreme Court Dinabandhu Sahu v. State of Orissa : 1972CriLJ39 . In that case it was held that where the Court was convinced about the sincerity of the apology tendered through counsel at the time of hearing, the conviction merely on the ground that apology was not tendered at earlier stage and was not in writing was not sustainable. On the question of any further effect being given to the order of relieving the respondents of their duties counsel for the appellants relied on a decision of the Supreme Court reported in AIR 1971 SC 2147. We do not think that this decision has any application to the facts in this case as the question in that case was interpretation of Section 34 (1-B) of the U. P. Municipalities Act.

Counsel for the respondents on the other hand strenuously contended before us that the apology tendered on behalf of the appellants was neither sincere nor bona fide. It was also argued that the appellants had not yet given effect to the order of this Court and therefore the apology- tendered was shorn of all its merits. In support of his contention on the question of apology counsel for the respondents firstly relied upon a decision of the Supreme Court Mulkh Raj v. State of Punjab : 1972CriLJ754 in which it was held that an apology was an act of contrition and unless it was offered at the earliest opportunity and in good grace, it was shorn of penitence and was therefore liable to be rejected and that if apology was offered at the time when the contemnor found that the court was going to impose punishment it ceased to be an apology and became an act of a cringing coward. I do not think this decision is of any assistance to the respondents in this case because apology was tendered before the trial court not at the time when the appellants found that they were likely to be found guilty or punished. But it is clear that unqualified and unconditional apology was tendered by counsel for the appellants at the very outset. Before this Court also unqualified and unconditional apology was tendered by Mr. Dutt on behalf of the appellants at the very commencement of the hearing of this appeal. The next case relied upon by counsel for the respondents was a Bench decision of the Andhra Pradesh High Court reported in : AIR1967AP19 , in which it was held that when an order of the High Court directed a person to do something, it was incumbent upon him to comply with the Court's order without any doubt or hesitation in his mind and that the excuse that he might be found fault with by higher authorities for complying with the orders of Court would be of no avail when he was asked to show cause why he should not be committed for contempt. In that case a Tahsildar held some cattle in his custody and by an order of the High Court, he was directed to release the cattle upon security being furnished. Such security was furnished by a bond but the cattle was not released. Thereafter an order was made that the Tahsildar was. under a wrong impression that security was to be furnished in cash, and he was again directed to release the cattle. It appeared that the Tahsildar did not carry out the order and informed the learned Advocate of the party who was engaged to secure the release order of the cattle, that he was waiting for appropriate directions from the superiors and that the cattle would not be released until he received orders of the superior. It was in these facts that it was held that there was a. violation of the order of this Court and it was incumbent upon a party to carry out the order of this Court and no excuse could be pleaded that he would be found fault with by higher authorities. The unconditional apology tendered in that case however was also accepted and no action was taken on the application for committal for contempt. i do not think this decision is of any assistance to the respondents either, inasmuch as, there was a clear refusal by the Tahsildar to carry out the order of the Court and he went further and said that he would not carry out the Court's order until he received directions from his superior officers.

15. Reliance was next placed by counsel for the respondents on a decision of the Madras High Court reported in : AIR1969Mad232 for the proposition that no officer of the Government however high or exalted he might be, could take upon himself the responsibility of judging the correctness or validity of an order of Court and If he honestly felt that the order was erro-ncous, he should approach the Court by way of review or modification or higher Court by an appeal and that it was not open to him to take upon himself the responsibility of judging the order and take any action contrary to the same. In that case the contempt petition was moved by a party who had earlier challenged the validity of certain provisions in the Madras General Sales Tax Act on a writ petition. A rule was issued on the writ petition and an order was made staying all further assessments proceedings for certain years. A copy of this order was served on the Sales Tax Officer who made an order demanding security by a Bank guarantee or cash as such security, before stay order could be given effect to. A contempt application was moved and it was contended on behalf of the Sales Tax Officer that the action taken had nothing to do with the writ petition and the interim order of stay, and also that he had no intention to disobey the order of the Court. It was in these facts that it was held that the officer concerned was guilty of contempt of court. Unconditional apology however was tendered on behalf of the contemner and that was accepted and no further action taken. I do not see how this decision is of any assistance to the respondents in this appeal because in that case there was a clear violation by the Sales-tax Officer of the stay order of the Court inasmuch as he refused to give effect to the stay order until security was furnished. Furthermore it is to be noticed that the unqualified apology tendered was accepted by the Court and no further action was taken against the contemner. The next case relied upon by counsel for respondents was a Bench decision of this Court reported in : AIR1951Cal397 . In that case an application was filed before the Municipal Magistrate complaining about a nuisance at a certain premises. The Magistrate on being satisfied that nuisance existed, ordered the removal of the cattle which caused the nuisance within three months and certain other consequential directions were also given. Though this order was made in 1946 no step was taken by the Officers of the Corporation even as late as 1950 to give effect to the order of the Magistrate. At the time of the hearing of the contempt rule however it appeared that the order was carried out sometime after the contempt petition was filed and before the rule came up for final hearing. It was contended on behalf of the contemners that they had not deliberately flouted or disobeyed the order of the Magistrate and that the delay was duo to administrative and financial difficulties. A petition was also filed tendering unqualified apology for delay in carrying out the Court's order. It was in these facts that it was held that when a party obtained an order of Court for getting relief and the order if carried out would give him the relief, somebody's failure to carry out Court's ordee after long period of four years tendered to bring into discredit the administration of justice in the country and the contempt of the contemner a serious contempt although they had no intention to flout the Court's order. I do not think that this case is of any assistance to the respondents as the facts in that case were entirely different from the facts with which we are concerned in this appeal. There was no doubt that in that case that the order of the Court was not carried out for four years and the observations of the Division Bench were made in the background of these facts.

16. The last case relied on by counsel- for respondents was a decision of this Court reported in (1968) 72 Cal WN 431. In that case it was held that a party who knew of an order, whether null and void, or regular or irregular, could not be allowed to disobey the order and that acting according to legal advice would be no defence for violating an order of Court. I do not think that the questions discussed in that case are of any assistance to the respondents in this appeal, as the question involved in that case was whether the Court could by an interim order extend the operation of a trading licence which admittedly expired on a certain date namely September 30, 1967.

17. In a contempt petition as indeed, in every other case the decision must necessarily rest on the facts of that case. In my view none of the decisions on which counsel for the respondents relied throw any light on the questions which arise from the peculiar facts of this appeal. There can be no doubt that where there has been an unequivocal, deliberate and wilful 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. But it should be remembered that the Court's power to punish for contempt in summary proceedings must be sparingly used and with circumspection. In dealing with the allegations of contempt it is not for the Court to assume a vindictive attitude in judging the allegations made against the contemner. Such allegations should be considered dispassionately in order to see if there has been deliberate and wilful difiance to the order of the Court so as to attract an order of conviction and sentence for contempt. Every infraction of the Court's order does not amount to contempt of court. It is only a wilful and deliberate violation of the Court's order and contumacious conduct on the part of the contemner which is to be condemned in contempt proceedings. In considering this question notice should also be taken of Section 13 of the Contempt of Court Act, 1971, which provides that no Court shall impose a sentence under this Act for contempt of Court unless it is satisfied that the contempt is of such a nature that it substantially interferes and tends to substantially interfere with due course of justice. A wilful and deliberate violation of the order of Court must be shown to interfere with the due course of justice before such conduct can be punished for contempt.

18. We are satisfied that in the facts of this case the appellants did not wilfully and deliberately violate the order of injunction issued by this Court. On the material before us we cannot but come to the conclusion that the failure on the part of the appellants to give effect to the ad interim order of injunction made on September 22, 1971, was due to reasons entirely beyond their control. In our view the trial Court was in error in finding the appellants guilty of contempt. The Trial Court was also in error in imposing the punishment upon the appellants of a sentence to pay fine of Rs. 100/- and also directing the appellants to pay the costs to the respondents assessed at twenty gold mohurs. In our view the trial Court even if it came to the conclusion that the appellants were guilty of contempt should have, after having accepted unqualified apology, discharged the Rule.

19. For the reasons mentioned above this appeal is allowed. The judgment and order under appeal are set aside. The Rule is discharged. There will be no order as to costs.

20. As no further argument was advanced in appeal from original order No. 518 of 1972 the order mentioned above will govern that appeal also.

Janah, J.

21. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //