HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 42 AFR Case :- CONTEMPT APPEAL No. - 1 of 2013 Appellant :- Gyan Prakash Singh, District Inspector Of Schools Respondent :- Dr. Rakesh Mohan Mishra And Another Counsel for Appellant :- A.S. Rai Counsel for Respondent :- K.M. Mishra,Sudhir Mehrotra Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Pramod Kumar Srivastava,J.
This contempt appeal under Section 19 of the Contempt of Courts Act, 1971 has been preferred against the judgment and order dated 7.1.2013 imposing punishment against the appellant for having wilfully disobeyed the order passed on 9.9.2011 in Special Appeal (Defective) No.918 of 2011. The appellant has been sentenced to undergo a simple imprisonment of one month and a fine of Rs.2,000/- after holding him guilty under the provisions of the 1971 Act.
The background in which this punishment has been imposed and the appellant has been held guilty is that there was a dispute with regard to the control of management of an educational institution known as Tripathi Jyoti Prasad Arya Kanya Inter College, Etawah. The said institution when the dispute commenced was being managed by a Committee of Management of which Rakesh Mohan Misra was the recognized Manager and his signatures had been attested on 27.8.2010 by the competent authority, namely, the District Inspector of Schools who exercises implied powers of attestation under the Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 in relation to a State aided private institution. Thus Rakesh Mohan Mishra was functioning as Manager and his signatures had been attested by the District Inspector of Schools and was the recognized Manager of the Institution.
His rival, one Mr. Surendra Bahadur Saxena, claimed that he is the rightful Manager of the institution and he questioned the proceedings relating to the amendment of the Scheme of the Administration of the institution which was got amended by Rakesh Mohan Mishra. It appears that this amendment in the Scheme of Administration was approved by the Joint Director of Education on 1.8.2002. Surendra Bahadur Saxena felt aggrieved on account of this amendment and he alleged that he had preferred a representation against the aforesaid amendment on several grounds. This representation was made to the Director of Education who in turn sent a letter on 23.9.2008 to the Joint Director to submit all relevant papers in this regard but no action was being taken. Consequently, Surendra Bahadur Saxena filed Writ Petition No.64891 of 2010 after 8 years which was disposed of on 29.10.2010 with a direction to the Director of Education to decide the controversy relating to the amendment of the scheme of administration within a period of three months. A copy of the said judgment is Annexure 1 to the affidavit in support of the said application.
It appears that on such a direction orders were passed on 22.7.2011/1.8.2011 and as a consequence of such an order which was communicated to the District Inspector of Schools, an order was passed on 5.8.2011 by the contemnor who was then functioning as a District Inspector of Schools, Etawah whereby he cancelled the attestation of signatures of Rakesh Mohan Mishra and recognized Surendra Bahadur Saxena as the valid Manager of the Committee of Management and attested his signatures.
Aggrieved, Rakesh Mohan Mishra filed Writ Petition No.47272 of 2011 assailing the said order dated 5.8.2011 as well as the order dated 22.7.2011 passed by the Director of Education on various grounds. A learned Single Judge of this Court stayed the operation of both the orders on 24.8.2011. Thus, the order attesting the signatures of Surendra Bahadur Saxena was put in abeyance, and consequently as a result of the said interim stay order, the District Inspector of Schools also passed a consequential order on 7.9.2011 whereby he restored and attested the signatures of Rakesh Mohan Mishra and cancelled the attestation of the signatures of Surendra Bahadur Saxena. All these orders are quoted at page nos.1 and 2 of the impugned judgment.
Aggrieved by the interim order dated 7.9.2011, passed by the learned Single Judge and referred to hereinabove, Surendra Bahadur Saxena preferred a Special Appeal (Defective) No.918 of 2011. A division bench of th 1.8.2011 is Court on 9.9.2011 directed the appeal to be listed along with said writ petition and other connected matters in relation to the same institution, and simultaneously also passed an interim order to the effect that in the meanwhile status quo existing on the day of the passing of the interim order in the appeal, in respect of the Management of the institution was directed to be maintained by the parties.
It is this order which led to the passing of the order by the District Inspector of Schools on 22.9.2011 and has given rise to these contempt proceedings. The District Inspector of Schools treating the order dated 9.9.2011 to be a stay order proceeded to reverse the order dated 7.9.2011 whereby he had restored Rakesh Mohan Mishra and attested his signatures. The District Inspector of Schools cancelled the attestation of the signatures of Rakesh Mohan Mishra and again attested the signatures of Surendra Bahadur Saxena to act as a Manager in the purported compliance of the order dated 9.9.2011.
Rakesh Mohan Mishra also moved an application in the special appeal itself praying that the District Inspector of Schools has virtually committed contempt by disobeying the orders of the High Court and therefore prayed for stay of the order dated 22.9.2011 as well. The division bench after noting this passed orders on 28.9.2011, copy whereof is Annexure 9, recording that the Court was constrained to pass this order as the counsel for Surendra Bahadur Saxena did not appear and further issued notices to the District Inspector of Schools, Etawah to show cause as to why a contempt proceeding should not be drawn against him for violating the order of the division bench dated 9.9.2011.
The District Inspector of Schools on 12.10.2011 again reversed his earlier order and cancelled the attestation of the signatures of Surendra Bahadur Saxena made on 22.9.2012. A copy of this order is Annexure 16 to this appeal.
Another fact that deserves notice is that the application dated 25.9.2011 on which the order dated 28.9.2011 was passed was defective and was not pressed with liberty to file a fresh application but the court again reiterated its directions to maintain status quo as on 9.9.2011 vide a fresh order dated 20.10.2011 (at page 261 of the paper book).
It is in this background that Rakesh Mohan Mishra filed a civil contempt application alleging that the order of the special appellate bench dated 9.9.2011 and the earlier stay orders passed by the learned Single Judge dated 24.8.2011 had been wilfully and deliberately violated by the District Inspector of Schools with a view to extend benefit to Surendra Bahadur Saxena.
The learned contempt Judge issued notices on which Gyan Prakash Singh, the contemnor, filed a response and after exchange of affidavits the learned Single Judge passed orders on 17.11.2011 observing that the charges are required to be framed on the facts so disclosed and accordingly summoned the contemnor for the same.
The contemnor filed a recall application before the learned Single Judge for setting aside the order dated 17.11.2011 which was dismissed on 13.12.2011. Against both these orders for proceeding to frame charges passed by the learned Single Judge on 17.11.2011 and 13.12.2011, Contempt Appeal (Criminal) No.6 of 2011 was filed by the contemnor which was dismissed on 27.7.2012 with a direction that the contemnor will now appear before the learned Single Judge for framing of charges.
Vide order dated 25.9.2012 the contemnor was called upon to face the charges and show cause as to why punishment be not imposed on him. The contemnor filed his response and thereafter the learned Single Judge proceeded to hear the contempt petition and came to the conclusion that the contemnor has wilfully and deliberately flouted the order dated 9.9.2011 by passing the order dated 22.9.2011. A finding has been categorically recorded that the contemnor was determined to unseat Rakesh Mohan Mishra and therefore deliberately attested the signatures of the other side, namely, Surendra Bahadur Saxena inspite of the interim order of the learned Single Judge and by the Special Appellate Bench and his own orders referred to hereinabove.
Sri A.S. Rai, learned counsel for the appellant, contends firstly that the appellant has tendered unqualified apology at the very outset before the learned Single Judge. Not only this, the contemnor was present in person during the hearing of this appeal and on conclusion has himself pleaded apology. Ground no.1 of the memo of appeal also recites that apology had been tendered on several occasions and the fact of tendering apology even though has been noticed at internal page 5 of the judgment by the learned Single Judge yet no satisfaction or dissatisfaction has been recorded about this apology in the impugned judgment. Thus, the first ground of challenge raised is that the tender of apology should have been considered by the learned Single Judge keeping in view the proviso to Section 12 (1) of the Contempt of Courts Act, 1971 and the explanation added thereto. Sri Rai submits that the apology was unqualified and was a bonafide request made before the learned Single Judge, hence the learned Single Judge ought to have recorded a satisfaction or otherwise thereon but without doing so has proceeded to straightway punish the appellant, hence the judgment is vitiated.
The second ground taken by Sri Rai, learned counsel for the appellant, is that the contemnor was discharging a statutory duty and there was a justification pleaded which indicated that the contemnor was acting in good faith and in the interest of the institution to ensure that the management continues to be run without hampering the cause of the institution. He, therefore, submits that this bonafide of the contemnor has not been considered keeping in view the averments that were was made in the counter affidavit that was filed before the learned Single Judge on behalf of the contemnor. He has invited the attention of the Court to the various paragraphs of the said counter affidavit to urge that keeping in view the tenor of the order dated 9.9.2011 passed by the special appellate bench the status quo of management as was existing on that date was sought to be maintained as according to the contemnor it was Surendra Bahadur Saxena who was entitled to manage the institution. He, therefore, submits that this aspect also has not been dealt with appropriately in the aforesaid background and evidence on record and therefore also the judgment is vitiated.
Sri Rai then contends that in the absence of any wilful intention to disobey the order and the act of the contemnor being of simple obedience to the orders of the court, the reply of the contemnor ought to have been considered which does not find mention in the impugned judgment and therefore the judgment also suffers from a procedural flaw. Consequently, prejudice has been caused to the appellant by non-consideration of the material on record filed in defence of the justification for truth which is a valid defence now recognized under Section 13(b) of the 1971 Act. Since the learned Single Judge does not appear to have delivered the judgment in consonance thereof, the same is vitiated.
Sri Rai then contends that apart from the aforesaid legal arguments the Court may also assess about any substantial interference having been made by the contemnor with the due course of justice as is required under Section 13 of the 1971 Act. He submits that unless there is a satisfaction and a finding recorded to that effect, the contempt would not amount to a substantial interference with the course of justice so as to call for punishment.
Sri Rai, however, submitted that while tendering apology he also submits that the order dated 22.9.2011 can be termed to be a wrong order but it was not passed on account of any intentional wilful disobedience and it may have been a bonafide mistake if at all, in a proper understanding of the order dated 9.9.2011 passed by the division bench in special appeal. In the absence of any intention to disobey the said order the punishment awarded ought to have been avoided keeping in view Section 13 of the 1971 Act.
He also contends that the charges that have been framed do not call upon the contemnor to answer the charges as envisaged under the provisions of the Act, and therefore in the absence of a proper charge being framed the contemnor could not be expected to take any defence beyond the same. Such omission therefore cannot lead to any adverse inference or any lapse against the contemnor.
His last submission is that even assuming that the contemnor had disobeyed the orders then too even in view of his bonafide discharge of duties the punishment of imprisonment ought not to have been awarded to the contemnor who has tendered his unconditional apology on several occasions before the learned Single Judge as well as before this court.
Replying to the aforesaid submissions, the learned special counsel for the High Court Sri Sudhir Mehrotra submits that the contemnor clearly intended to benefit Surendra Bahadur Saxena by passing the order dated 22.9.2011 that was in teeth of the interim order dated 22.9.2011. Not only this he had full knowledge of the entire proceedings of the case right from the passing of the interim order of the learned Single Judge dated 24.8.2011 in favour of Rakesh Mohan Mishra who was already functioning and recognized as the Manager. Inspite of this knowledge he passed the order dated 22.9.2011 which was clearly a deliberate attempt to disturb the status of 9.9.2011 and dislodge Rakesh Mohan Mishra and therefore the learned Single Judge is justified in having punished the contemnor for wilful disobedience. Sri Mehrotra has further urged that each and every point has been discussed in detail by the learned Single Judge as lengthy arguments were advanced and none of the findings recorded have been successfully challenged in this appeal. He, therefore, submits that the punishment awarded is clearly commensurate to the guilt found and such public officials should not be spared in view of their deliberate acts of committing contempt, moreso when all the proceedings were pending before this Court. He, therefore, submits that the Court while passing the sentence has kept in mind all the ingredients of Sections 12 and 13 of the 1971 Act and has recorded a clear satisfaction which does not admit of any ambiguity. The punishment awarded to the contemnor therefore does not call for any interference as a wilful disobedience is clearly established and the guilt having been found the punishment cannot be faulted with.
Before proceeding further certain definitions of the 1971 Act need to be noted. Section 2(b) defines civil contempt as follows :-
2(b) "civil contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;
Sections 12 and 13 of the Act 1971 which have been referred to by the learned counsel are extracted hereinunder :-
"12. Punishment for contempt of court .- (1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both:
Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.
Explanation.- An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.
(2) Notwithstanding anything contained in any other law for the time being in force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it.
(3) Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.
(4) Where the person found guilty of contempt of court in respect of any undertaking given to a court is a company, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of each such person:
Provided that nothing contained in this sub-section shall render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission.
(5) Notwithstanding anything contained in sub-section (4), where the contempt of court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer.
Explanation - For the purposes of sub-sections (4) and (5),-
(a) "company" means any body corporate and includes a firm or other association of individuals; and
(b) "director", in relation to a firm, means a partner in the firm.
13. Contempts not punishable in certain cases. - Notwithstanding anything contained in any law for the time being in force-
(a) no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice;
(b) the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence it is satisfied that it is in public interest and the request for invoking the said defence is bona fide.
Having noted the aforesaid provisions we find that the proviso to Section 12(1) permits discharge on apology subject to the jurisdiction of the Court. The question of apology in turn is dependent on the finding of any wilful and deliberate disobedience on the part of the contemnor. In this regard it is evident that Rakesh Mohan Mishra was the Manager who was functioning and it was Surendra Bahadur Saxena who obtained orders from the Directorate of Education on 22.7.2011 and 1.8.2011 in relation to the issue of amendment and the functioning of the Management. Acting upon the said orders of the Directorate of Education, the contemnor cancelled the attestation of signatures of Rakesh Mohan Mishra and attested the signatures of Surendra Bahadur Saxena on 5.8.2011. It is against these orders that Rakesh Mohan Mishra filed Writ Petition No.47272 of 2011 where the operation of these orders were stayed on 24.8.2011. The contemnor upon being served with this order restored the recognition and attestation of signatures of Rakesh Mohan Mishra as Manager on 7.9.2011. Thus, the contemnor was having knowledge of this interim order which remained intact.
It is thereafter that Surendra Bahadur Saxena, and not the District Inspector of Schools, filed Special Appeal (Defective) No.918 of 2011 where the order of status quo as existing on that date, i.e. 9.9.2011, was passed. It is to be noted that the attestation of signatures in favour of Rakesh Mohan Mishra had already been restored by the District Inspector of Schools himself on 7.9.2011 as noted above. Thus, on 9.9.2011 it was Rakesh Mohan Mishra who was being treated as the Manager as his signatures had been reattested on 7.9.2011.
It is thereafter that the contemnor proceeded to pass the contemptuous order dated 22.9.2011 purporting to comply with the order of the status quo on 9.9.2011. The District Inspector of Schools recognized Surendra Bahadur Saxena and attested his signatures on the understanding that the order of status quo dated 9.9.2011 amounted to vacating or at least staying the order of the learned Single Judge dated 24.8.2011. The District Inspector of Schools without this impression could not have passed the contemptuous order dated 22.9.2011. It is clear that the interim order passed in the special appeal on 9.9.2011 had only directed the maintenance of status quo as existing on that date and had not stayed the operation of the interim order passed by the learned Single Judge nor had it vacated the same. The order of the learned Single Judge had been complied with by the District Inspector of Schools himself on 7.9.2011. Thus no ambiguity or uncertainty can either be attributed to or inferred from the order dated 9.9.2011 passed by the division bench. In this background the only inference that can be drawn is that the District Inspector of Schools, the contemnor herein, deliberately reversed the position of 7.9.2011 by passing the order dated 22.9.2011. This action, in our opinion, was neither bonafide nor was it justified, inasmuch as if the District Inspector of Schools had any confusion about the tenor of the order dated 9.9.2011 passed by the division bench, then he ought to have applied before this Court or sought a legal opinion instead of reversing the position himself which clearly amounts to interfering with the interim order dated 9.9.2011 passed by the Special Appellate Bench. This, in our opinion, on the basis of the evidence on record as discussed hereinabove was a clear deliberate act on the part of the contemnor to extend benefit to Surendra Bahadur Saxena who had neither been recognized as Manager by the order dated 9.9.2011 nor had the recognition of Rakesh Mohan Mishra been annulled by the same.
The contemnor while taking defence has discribed his act as the performance of the statutory duty in the interest of the institution. We are unable to agree with this defence inasmuch as the institution would have run with Rakesh Mohan Mishra as well as it was running from before. Thus, there was nothing which was acting against the interest of the institution. To the contrary what was being done by the District Inspector of Schools was to benefit Surendra Bahadur Saxena and unseat Rakesh Mohan Mishra.
At this stage we may clarify that interim orders passed by courts also deserve to be obeyed and cannot be disrespected or avoided by such statutory authorities. The Apex Court in the decision of T.C. Gupta Vs. Bimal Kumar Dutta & others reported in 2014 (14) SCC Page 446 has indicated that if an interim order has been passed in a writ petition and the same is finally terminated by a dismissal of the writ petition then too even it cannot be said that all cases of dismissal of a writ petition by itself would absolve a contemnor of the charge of commission of contempt in respect of an interim order passed while the writ petition had remained pending. Paragraph 12 of the said judgment is extracted hereinunder :-
"12. It has also been noticed by us that the writ petition in which the interim order dated 18.8.2011 came to be passed has been finally terminated by an order dated 30.10.2012 dismissing the writ petition and also that the said order has attained finality in law. This is another relevant circumstances that cannot be ignored though we should not be understood to be saying that all cases of dismissal of the writ petition, by itself, would absolve a contemnor of the charge of commission of contempt in respect of an interim order passed while the writ petition had remained pending.
It is true that the decisions of the Apex Court in the case of State of J & K Vs. Mohd. Yaqoob Khan & others that has been followed in a subsequent decision of the Apex Court in the case of Modern Food Industries (India) Ltd. and another Vs. Sachidanand Dass and another reported in 1995 suppl.(4) SCC Page 465 has held that whenever a stay matter in a writ petition has not been finally disposed of, further proceedings in a contempt case should not be continued and attempt should be made to await the final decision of the petition itself. The said decisions, however, do not lay down that a violation of an interim order cannot bring about a contempt. Not only this, the Apex Court in the case of Dr. H. Phunindre Singh And Ors. Vs. K.K. Sethi, 1998 (8) SCC Page 640 has found that the contempt petition should be disposed of on merits instead of adjourning the same till the disposal of an appeal. In our opinion, also if a contempt is subsisting then merely because an order is an interim order which is subject to vacation or subject to reversal in an appeal cannot be disobeyed by the authority unless there are any bonafide or compelling reasons to support any such stand.
In the instant case the situation is different where firstly the interim order passed by the learned Single Judge on 24.8.2011 had been complied with by the contemnor himself on 7.9.2011 by restoring the status of Rakesh Mohan Mishra. This status was not diluted by any judicial order nor it could have been diluted by any inference inasmuch as the status quo order on 9.9.2011 as existing on that date did not vacate the interim order of the learned Single Judge dated 24.8.2011 nor did it stay the recognition of Rakesh Mohan Mishra and his attestation of signatures dated 7.9.2011. Thus, there was no occasion for the District Inspector of Schools to have passed an order to the contrary on 22.9.2011 which clearly indicates that he wilfully and deliberately reversed the situation to extend benefit to Surendra Bahadur Saxena. It may also be reiterated that the special appeal had been filed by Surendra Bahadur Saxena and not by the District Inspector of Schools.
Apart from this we are further fortified in the aforesaid inference by the reasons given by the learned Single Judge as also by the fact that the division bench in special appeal again passed an order on 28.9.2011 expressing displeasure and also calling upon the District Inspector of Schools as to why proceedings for contempt be not drawn against him.
Inspite of all these proceedings before this Court, the District Inspector of Schools had wilfully and deliberately continued to favour Surendra Bahadur Saxena and was justifying his stand of recognising him on the ground that Surendra Bahadur Saxena had submitted documents and papers that indicate his effective control over the institution. It is, in our opinion, was a clear device to confer benefit to Surendra Bahadur Saxena to create evidence of his effective control over the institution. This was not possible without the deliberate active participation of the contemnor who passed the orders on 22.9.2011 to that end.
The District Inspector of Schools/contemnor described his action as a performance of statutory duty. As indicated above, the District Inspector of Schools had no duty to alter the status quo of 9.9.2011 in violation of the orders of the Court and his own order dated 7.9.2011. Thus, his action was not a bonafide exercise of statutory duty and was rather an act of wilful and deliberate attempt to interfere with the functioning of Rakesh Mohan Mishra who was clearly protected under the orders of the High Court including the order dated 9.9.2011. This act was an interference with the due course of justice clearly with an intent to disobey the judicial order of this court. It is for this reason that the division bench expressed displeasure and also put the District Inspector of Schools to notice on 28.9.2011 as to why contempt proceedings be not drawn against him.
In our opinion, the passing of the order of the contemnor on 22.9.2011 was not a mere infraction of the orders of the High Court but was an intentional and deliberate violation which is the gravamen of contempt. The contemnor could not have afforded to sit over the orders of the High Court or interpret it in a manner so as to dislodge the recognized Manager of the institution Rakesh Mohan Mishra.
Then comes the issue of apology as urged by Sri Rai, learned counsel for the appellant, to the effect that the contemnor had tendered his apology on nine occasions before the learned Single Judge and again has done it before this Court. The first stage of apology is a sense of remorse and then some act that may lead the court to believe that the contemnor was acting bonafidely and had also made attempts to purge the contempt. As noted above the contemnor continued to act in a manner which was a clear defiance of the order of the High Court dated 9.9.2011 as well as the stay order by the learned Single Judge dated 24.8.2011. However, the contemnor after the orders by the division bench on 28.9.2011 proceeded to pass an order restoring the status of Rakesh Mohan Mishra by the order dated 12.10.2011. In a way it can be said that the contemnor took notice of the threat of contempt by the division bench in its order dated 28.9.2011 and then in order to escape any action passed orders on 12.10.2011. This act of the contemnor has to be read in the light of the wordings of the order dated 12.10.2011. The contemnor did not state therein that he had passed the earlier order dated 22.9.2011 by mistake. He did not express any remorse therein and rather he passed the orders in the purported compliance of the order dated 9.9.2011 and 28.9.2011. This, in our opinion, does not amount to an action of purging the contempt.
At this stage we may put on record that the orders that were passed on 28.9.2011 were on an application that was withdrawn but fresh orders for maintaining the status quo as on 9.9.2011 were again reiterated on 20.10.2011.
It is in this background that the notices were issued to the contemnor to answer the contempt before the learned Single Judge giving rise to this appeal. Even before the learned Single Judge the contemnor did tender an apology, but the same appears to be guarded inasmuch as he filed a recall application for withdrawing the notice of contempt which was dismissed on 13.12.2011 and then he filed a Contempt Criminal Appeal No.6 of 2011 challenging the initiation of proceedings of contempt that came to be dismissed on 27.7.2012. This attitude of the contemnor to contest the initiation of contempt proceedings therefore does not indicate any sense of remorse so as to construe that the contemnor was apologetic or had passed an order under a bonafide mistake. This attitude adopted by the contemnor to contest the proceedings and at the same time try to wriggle out by tendering an apology clearly demonstrates that the contemnor had not tendered a bonafide apology as explained by the full bench decision of our Court in paragraphs 63 to 90 in the case of Smt. Sadhana Upadhayay (Advocate) Vs. State of U.P. 2009 (2) UPLBEC Page 987 = 2009 (3) ADJ Page 621.
The entire backdrop of the case, therefore, demonstrates that when the contemnor found himself to be within the clutches of contempt proceedings then he started making attempts to escape trial by tendering apology.
The contempt therefore subsisted even though the contemnor had later on restored the position of Rakesh Mohan Mishra as Manager by the order dated 12.10.2011.
The contemnor had therefore passed an order dated 22.9.2011 that substantially interfered with the due course of justice with a clear intention to extend benefit to Surendra Bahadur Saxena. Consequently, the arguments advanced by Sri Rai on the strength of the provisions of the 1971 Act as indicated above did not come to the aid of the contemnor.
Sri Rai urged that the learned Single Judge has neither recorded a satisfaction so as to frame proper charges nor has he recorded a satisfaction as to why punishment deserves to be awarded. He has invited the attention of the Court to Section 13 of the 1971 Act. So far as the framing of charges is concerned, we do not find any error of procedure and we also find that the proceedings at the initial stage had been challenged in an appeal before the division bench which was dismissed and therefore the issue of questioning the procedure at this stage does not arise when no substantial infraction of procedure could be pointed out. So far as the issue of recording a satisfaction under Section 13 of the 1971 Act is concerned, the learned Single Judge has clearly found that there was a wilful and deliberate disobedience and violation of the orders of this Court. This is the satisfaction and we have also found that the contemptuous conduct of the contemnor had substantially interfered with the due course of justice.
The aspect which deserves to be mentioned now is that once a person has been found guilty of a civil contempt it has to be seen as to whether a fine will not meet the ends of justice and that a sentence of imprisonment is necessary. In the instant case what we find is that the contemnor on 12.10.2011 before notices for contempt had been issued formally by the learned Single Judge in the civil contempt proceedings had passed orders in favour of Rakesh Mohan Mishra. This, therefore, indicates that by 12.10.2011 the contemnor had understood the directions of the Court and may have acted bonafidely to comply with the directions of the High Court in right earnest.
In view of the aforesaid inference that has been drawn, the sentence of imprisonment of one month therefore deserves to be reduced but not totally obliterated as the contemptuous conduct of the contemnor is established. Having regard to the facts and circumstances of the case we accordingly confirm the judgment of the learned Single Judge impugned herein with the modification that the sentence of one month imprisonment shall stand reduced to one week.
At this stage Sri Rai prayed that the contemnor be granted some time to prefer an appeal against this judgment before a higher forum and to that end he also prays that the sentence of punishment may be kept in abeyance. We accept his prayer to the extent that the fine imposed shall be deposited, but the sentence for one week imprisonment shall remain suspended for a period of one month from today to enable the contemnor-appellant to avail any remedy questioning this judgment.
Subject to the aforesaid modification in the sentence this contempt appeal is hereby dismissed.
Order Date :- 31.7.2015 Anand Sri./-