M/S Pragati Paper Mills Ltd. vs State Of U.P. And 2 Others
2015 Latest Caselaw 28 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved 
 

 
CONTEMPT APPLICATION (CRIMINAL) No. - 2 of 2014
 
(In re;  Versus Manoj Singh, M.D. U.P.S.I.D.C.)
 
in
 
Writ C No. 64720 of 2013
 
M/s Pragati Mills Limited   Versus State of U.P.  and others 				
 
Hon'ble Ravindra Singh,J.

Hon'ble Raghvendra Kumar,J.

Heard Sri Sudhir Mehrotra, learned Special counsel for the High Court, Sri Vijay Bahadur Singh, learned Advocate General of the State of U.P. and Sri G.S. Chaturvedi, Senior Advocate, assisted by Sri Pankaj Kumar Shukla, learned counsel for the contemner.

The reference of initiating the proceedings of criminal contempt against Sri Manoj Singh, Managing Director UPSIDC has been made by a Division Bench of this Court comprising Hon'ble Arun Tandon,J. and Hon'ble Anjani Kumar Mishra,J. vide order dated 20.12.2013. In the reference order dated 20.12.2013 passed by the above mentioned Division Bench in writ C- No. 64720 of 2013( M/S Pragati Paper Ltd. Versus State of U.P. and two others). The reference order dated 20.12.2013 is being quoted below.

"A Public Interest Litigation (PIL) was filed before the High Court, being Writ Petition No. 8173 of 2012, which was connected with Misc. Petition No. 207 of 2012 for getting an enquiry conducted into the wrongs done by the officers/officials of the UP State Industrial Development Corporation Ltd. (UPSIDC) in the matter of conversion of land-use. The then Hon'ble the Chief Justice, along with another Hon'ble Judge, after taking note of the seriousness of the allegations, as also of the fact that the State Government has already ordered for an investigation by the Special Investigation Team (SIT), disposed of the said PIL by providing that the investigation shall be brought to its logical conclusion in accordance with law at an early date, preferably within 6 months. This order was passed on 13.12.2012.

The petitioner before this Court also made an application which was practically for the same purpose, namely, conversion of land-use and it was his case that the rejection of the application was bad as the constitution of the SIT itself was illegal and arbitrary. This Court in order to ascertain as to what is the report of the SIT as a period of one and a half years had elapsed after passing of the order of the High Court dated 13.12.2012, required the Managing Director of the UPSIDC to file an affidavit disclosing the status of the SIT investigation, as directed by the High Court by the order in the PIL.

In response to the order of the High Court, the Managing Director, namely Manoj Singh, filed an affidavit before this Court and in paragraph 5 of his affidavit he referred to the orders of the High Court in the PIL in the matter of illegal conversion of land-use, and then he referred to the order passed in Contempt Petition No. 1809 of 2013, as to the earlier reports submitted by the SIT dated 17.4.2013, being based on the photostat copies of the documents, no legal sanctity could be attached to them. He stated that the High Court had allowed one month's time to complete the preliminary enquiry, and in case a cognizable case appears to have been made out for lodging an FIR in the matter. Then comes the interesting paragraph 6 of the affidavit,which reads as follows:

6. That, in compliance to the directions issued by the Hon'ble Court in Writ Petitions (PIL) No. 8173 of 2012 and 207 of 2012, as were disposed of vide order dated 13.12.2012, the S.I.T. completed the inquiry and submitted the report on 8.10.2013 itself to the Principal Secretary Home, Government of Uttar Pradesh. It is further submitted that three-members Committee, as was constituted for taking decision on Inquiry Report as was submitted by the S.I.T., did not found any criminality. However, a recommendation has been made for conducting departmental inquiry against the officers of UPSIDC. In view of the inquiry-report as was submitted by the S.I.T., legal opinion has been sought from the Law Department, Government of U.P. and the same is in process.

In paragraph 7 of the same affidavit, the Managing Director went on to state that now in the next Board meeting of UPSIDC the matter of the land-use change of the petitioner's land shall be considered according to the Rules and the Regulations of the UPSIDA. This Court was not satisfied with the affidavit filed, and insisted that the SIT report itself may be produced for its examination on 11.12.2013.

On 11.12.2013, learned Standing Counsel prayed for further time to produce the report of the SIT. The case was adjourned to 16.12.2013.

On 16.12.2013, again, the report was not produced and the learned Standing Counsel took a stand that the report was not available in the office of respondent no. 1, namely, Principal Secretary, Small Scale Industries, Secretariat, Lucknow. Similar stand was taken by the Managing Director. Therefore, this Court was constrained to pass the order requiring the Home Secretary, U.P., to ensure production of the SIT report along with the recommendations of the Three-member Committee. It is only then that the report of the SIT along with the recommendations of the Three-member Committee was produced before this Court on 18.12.2013.

From the SIT report, and the letter of three member committee produced before this Court on 18.12.2013, it was found by the Court that the averments, made in paragraph 6 of the affidavit of the Managing Director of the UPSIDC, quoted above, that no criminality has been found in the SIT report were incorrect. The statement of fact made was patently false. The Secretary was required to look into the matter and take appropriate action.

Today, when the matter was taken up, again, an affidavit has been filed by the same Managing Director and in order to explain his false statement he has tried to concoct further false stories. Paragraphs 3 and 4 of the affidavit that today reads as quoted below:

"3. That it is humbly submitted that it is necessary to bring to the knowledge of the Hon'ble Court that two SIT investigations were instituted by State Govt. against various alleged irregularities committed in UPSIDC. The 1st SIT was instituted on 22.06.2007 and concluded the investigation. Thereafter the Principal Secretary in his Letter dated 16.09.2013 had clearly observed that no criminality was found by SIT. the assertion made in paragraph 6 of the counter was on the basis of the above fact. A true copy of the Letter dated 16.9.13 of the Principal Secretary, Homes is being annexed as Annexure SCA-2 to this affidavit.

4. That it is further clarified that in compliance of the direction issued by the Hon'ble Court 2nd SIT completed the enquiry and submitted the Report on 08.10.2013. In the said Report dated 08.10.13 criminality was found against the several officers/employees of the UPSIDC. On the said report the opinion of the Law Department. Govt. of U.P. has been sought for taking further action in the matter and the opinion is awaited. In so far as para 6 of the counter affidavit with regards to criminality is concerned, it is humbly submitted that it was inadvertently mentioned that no criminality was found under confusion because of Report dated 03.12.2013 of Sri K.K. Yadav, Regional Manager (In-Charge Industrial Area) and in view of the letter dated 16.9.13 of the Principal Secretary, Homes. The oversight of the 2nd SIT Report submitted on 08.10.2013 is highly regretted and had been committed under the good faith that the brief was prepared by the responsible officer of UPSIDC. It appears that the 2nd SIT Report submitted on 08.10.2013 was produced before this Hon'ble Court and the 1st SIT report as mentioned in the letter dated 16.9.13 of the Principal Secretary, Homes was not before this Hon Court on 18.12.13 hence the direction to take action against the deponent, who is holding the post of Managing Director, UPSIDC, was passed by this Hon Court. "

The letter of the Principal Secretary, Home, which is being relied upon by the said Managing Director, is annexed as Annexure - 2 to the affidavit filed today. This letter apparently refers to the preliminary enquiry report submitted by the SIT (reference para 2 of the said report).

Further, in paragraph 3 of the said letter of the Principal Secretary, Home, a reference has been made to the Anupurak Report submitted by the SIT dated 2.2.2012, and thereafter a reference has also been made to another Anupurak Report dated 25.5.2011. It is stated in the same report that the the Hon'ble High Court vide its order dated 9.9.2013 had ordered for fresh look into the matter based on original documents because of the earlier report dated 17.4.2013 being based on photostat copies, as has been admitted by the Managing Director himself in paragraph 5 of his first affidavit. It is, therefore, writ large on the record that the Managing Director was all along aware that the preliminary enquiry reports and the Anupurak Reports submitted by the SIT had not been accepted by the High Court and in Contempt Petition No. 1809 of 2013, a direction was issued for enquiry on the basis of the original documents.

From the affidavit of the same Managing Director, which had been filed earlier, it is admitted on record that the report submitted on 8.10.2013, did find officers of the UPSIDC to be criminally involved and further action has been recommended in the matter along with the disciplinary proceedings against them. It is not the case of the Managing Director that he was not aware of the report dated 8.10.13 of the SIT, as has been referred to in todays affidavit. What makes his position worse is that despite the report of the SIT dated 8.10.2013, being in his knowledge and in the knowledge of the officers of the UPSIDC, in para 7 of the affidavit filed earlier, it has been stated that now a new Chairman/Managing Director has been appointed and in the next meeting the application of the petitioner for change of the land-use shall be considered in accordance with the Regulations.

The purpose is more than obvious. An attempt has been made to perpetuate the illegal manner in which the land-use has been permitted to be changed by the UPSIDC, as well as to mislead the Court for passing a simple direction on the plea that no criminality has been found in the matter of the change of the land-use by the officers/officials of the UPSIDC under the SIT report of 8.10.2013.

We are of the considered opinion that the Managing Director is prima facie guilty of filing a false affidavit, which amounts to criminal contempt in view of the law laid down by the Hon'ble Supreme Court in the case of D.D.A. vs. Skipper construction (1995) 3 SCC 507 & Sukara Lakshminrasamma v. Sagi Subba Rao (2009) 7 SCC 460.

We, therefore, direct this writ petition to be placed before the Bench hearing criminal contempt on 9.1.2014 for further action in the matter, on which date the report of the SIT dated 8.10.13 shall be produced and the action taken by the State Government thereon shall be reported to the Court by way of an affidavit.

Learned Chief Standing Counsel has produced two letters, both dated 19th December, 2013, which are taken on record.

Let the record of the writ petition be placed before the appropriate court hearing criminal contempt on 9.1.2014."

Considering the reference order dated 20.12.2013 the contemner Manoj Singh, Managing Director UPSIDC has been directed on 9.1.2014 to file reply as to why criminal contempt proceedings be not initiated against him as provided in the Contempt of Courts Act. In pursuance of the order dated 9.1.2014 the contemner has filed an application supported by an affidavit dated 16.2.2015 mentioning therein that the answering respondent being a responsible government officer has the highest and regard for the majesty, highest respect in regard of the orders and sentiment of this Hon'ble Court as well as any court of law and he cannot dare to disobey any one of them. However, the deponent tenders unconditional and unqualified apology for any act or omission or commission, which may appears to be contempt of the court in the opinion of this Hon'ble court. He further stated in paragraph No. 3 that the criminal contempt proceedings may be dropped and he is giving undertaking that he will remain careful in future regarding the affidavit and swearing the contents of the affidavits in the court proceedings.

In the present case one Atul Kumar moved an intervention application, the same has been dismissed by this court on 18.2.2015. Against the order dated 18.2.2015 Sri Atul Kumar moved a petition for Special Leave to appeal( Criminal)...CRLMP No.3813 of 2015 the same has been dismissed as withdrawn on 10.4.2015 by the Supreme Court of India.

It is a case in which at the initial stage i.e on first occasion the petitioner filed his affidavit tendering unconditional and unqualified apology, without trying to justify his action or taking any plea in defence, with regard to his act.

For considering the 'apology', we made a query with regard to the action taken by him against his subordinate erring officials and other persons, in response of such query made by the court, the contemner filed supplementary affidavit dated 19.2.2015. The relevant paragraphs of the supplementary affidavit dated 19.2.2015 are quoted below;

"3. That in 2013 one M/s Pragati Papers Mills Ltd. had filed a Civil Misc. Writ Petition No. 64720 of 2013 in the month of November, 2013. A Writ of mandamus for early decision of its application, which he moved way back on 27.05.2006 for conversion of land use from industrial to commercial. In this Writ Petition No. 64720 of 2013, the Hon'ble Court on 27.11.2013 had directed that an affidavit be filed about the status of enquiry commenced by Special Investigating Team (SIT). In this backdrop one Sri K.K.Yadav, Regional Manager/Incharge (Industrial Area), who was dealing with this case and was conversant with the facts had prepared a detailed paragraph wise comments by way of reply and according affidavit of deponent was prepared and in confusion and inadvertence the deponent affidavit was filed. There were two sets of SIT ( Special Investigating Team) one was about the affairs and functioning of UPSIDC before 2007 and the second SIT was regarding the affairs after 2007. In the earlier SIT, the recommendation was made by the SIT to merely draw departmental proceedings against Officers of the UPSIDC, who were prima facie found careless, negligent but no observation was made for proceeding on a criminality. However, in a Second S.I.T., which related to the affairs after 2007, the element of criminality was also suggested. Due to inadvertence and confusion on a wrong instructions which were in writing submitted by K.K.Yadav, it was mentioned that there was no criminality found in the Second S.I.T.

4.That however, the matter in which element of criminality was found and action was required to be taken are about the affairs by the time, the contemner had no occasion to know the affairs of UPSIDC as he had recently joined as Managing Director of UPSIDC, Kanpur with effect from 24.5.2012.

5.That the Hon'ble Court directed only to know the status of the second S.I.T.report. However, the deponent had submitted his unqualified and unconditional apology for inadvertence and had shown his sincere regrets and remorse.

6.That it significant to submit that the deponent Managing Director, UPSIDC, Kanur had taken initiatives and taken all the possible steps to execute a criminal investigation and proceedings in the matter.

7.That as per recommendation of deponent as a Member of State Committee, 09( nine) First information Reports have been registered on 30.10.2014, vide Case Crime Nos. 7 to 15 of 2014, under sections 409,420,120-B I.P.C. and Section 3(1)(2)(3) Prevention of Corruption Act, at Police Station Gomti Nagar, Lucknow against the Officers of the UPSIDC as well as outsiders, which were involved in the conspiracy in the matter.

8.That the deponent, Managing Director had also taken action against K.K. Yadav under whose written instructions and paragraph wise comments, inadvertent mistake had taken place. He was immediately removed from his office on 19.12.2013 and a departmental proceedings has been initiated on the same day. Before the Departmental Enquiry Committee, Sri K.K. Yadav admitted his guilt. The order dated 19.12.2013 removing Sri K.K. Yadav from his office as well as departmental proceedings initiated against him are being collectively annexed and marked as Annexure-SA 3 to thhis supplementary affidavit.

9.That as on today, about 21 persons are being prosecuted against whom, the First information Reports have been filed, which includes the officials of UPSIDC as well as outsiders and the criminal investigation is going on through SIT and the deponent is sparing no stone by unturned to bring all the erring delinquent officers by way of investigating procedure set in motion by the SIT and rending all the cooperation in the matter.

10.That it is reiterated with great respect that unqualified and unconditional apology has been tendered; the matter is being persuaded with all due diligence and care with the SIT by way of criminal investigation."

From the perusal of the reference order dated 20.12.2013, the affidavits filed by the contemner in writ petition, the affidavits and supplementary affidavit filed in the present contempt proceedings, it appears that the contemner is a very senior officer of UPSIDC. He has admitted that he has filed an affidavit in writ petition mentioning therein that no criminality has been found in the SIT report which was incorrect. He himself has regretted for mentioning incorrect fact in the affidavit filed in civil misc. writ petition no. 64720 of 2013, on which the reference to initiate the proceedings of the criminal contempt has been made. The notice has been issued on 9.1.2014 against the contemner to file his reply as to why criminal contempt proceedings be not initiated against him as provided under the Contempt of Courts Act. In pursuance of the notice issued against him, he filed his affidavit dated 16.2.2015 in which he tendered unconditional and unqualified apology towards the act constituting the offence of criminal contempt of court with an undertaking that he will remain careful in future regarding the affidavits and swearing the contents of the affidavit in the court's proceedings. He has not tried to justify his action and has not taken any plea in defence. To consider the bonafide of the apology tendered by the contemner we had made a query with regard to the action taken by him against his subordinate erring officials and other persons. In pursuance of a query made by the courts the contemner filed a supplementary affidavit dated 19.2.2015 mentioning therein that in the writ petition no. 64720 of 2013 on 27.11.2013 the order was passed to file an affidavit about the status of enquiry commenced by the Special Investigating Team(S.I.T.) for which Sri K.K. Yadav, Regional Manager/In-Charge( Industrial Area) who was dealing with this case and was conversant with the facts submitted his report in writing that SIT has not found criminality, the same fact has been mentioned by the contemner in the affidavit filed in writ petition. Sri K.K. Yadav had wrongly reported that no criminality was found in the SIT report (the copy of the report dated 3.12.2003 submitted by Sri K.K.Yadav has also been filed as S.A. 1 to the supplementary affidavit. The contemner has joined as M.D. of UPSIDC Kanpur on 24.5.2012, the contemner has himself taken initiative and all possible steps to execute the criminal investigation of proceedings in the matter as per recommendations made by the contemner as a member of State Committee, 9 FIRs have been registered on 30.10.2014 in case crime nos. 7 to 15 of 2014 under sections 409,420,120-B I.P.C. and 3(1)(2)(3) of Prevention of Corruption Act P.S. Gomti Nagar district Lucknow against the officials of UPSIDC and others. The contemner had also taken action against Sri K.K. Yadav on whose written report the contemner relied upon and filed an affidavit with regard to incorrect fact. Sri K.K. Yadav was immediately removed from the office on 19.12.2013 and departmental proceedings were initiated against him on the same day. Before the Departmental Enquiry Committee Sri K.K. Yadav had admitted his guilt.

It is settled position of law that an apology does not entitle an accused to discharge as a matter of right, even if the apology is unqualified and unconditional, it may be accepted or refused on the basis of the facts and circumstances of each of the case, the mere fact of apology tendered cannot wipe out the gravity of contempt, the gravity of contempt and its circumstances pave the way to accept or refuse the apology. The conduct of the contemner also plays an important role to consider the apology. The court has to consider the background in the light of the facts both antecedent to offer of apology and also the contemner subsequent conduct right upto the contempt proceedings. In the present case mistake has been committed by the contemner by mentioning incorrect fact in his affidavit but he has taken action against the erring officials who furnished him wrong information that in report of the SIT no criminality has been found. The petitioner has committed a mistake in relying upon the information furnished by the subordinate because it was obligatory to verify the same by perusing the report of the SIT before filing the affidavit. The petitioner has tendered unconditional and unqualified apology by admitting his mistake in straightforward manner for the act done unwittingly with an undertaking that in near future he shall be careful in filing the affidavit. He has not tried to justify his act and has not taken any plea in defence. He has filed such an affidavit, at the earliest occasion. In such circumstance, the reference may be drawn that apology tendered by the contemner is by heart, sincere, unqualified and bonafide, the circumstances of the present case are convincing us to accept the apology tendered by the contemner with a warning, therefore, the apology tendered by the contemner is accepted but he is warned not to commit such mistakes in future and be careful in filing the affidavit in the court proceedings.

Accordingly the contempt proceedings are dropped.

Dt. 20.4.2015

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