Prakash Watkar (Dr.) vs Dr. Smt. Sadhana W/O Shashikant ...
2003 Latest Caselaw 766 Bom

JUDGMENT

R.J. Kochar, J.

1. The appellant, Assistant Director, Ayurved Department, is a Government servant, who is working under the Director of Ayurved, and who in turn works under the control and supervision of the Director and Secretary, Medical Education and Research. He has approached this Court by filing the present appeal against the impugned Judgment and Order dated 28-3-2003 passed by the learned Single Judge of this Court in Contempt Petition filed by the Respondents against the appellant complaining against him that he was guilty of committing contempt of this Court by wilfully disobeying the orders dated 20-12-2002 and 23-2-2003. The learned Judge was pleased to find the appellant guilty of committing contempt of the Court by wilfully disobeying the aforesaid orders passed by this Court in Writ Petition, which was filed by the respondents. The learned Judge was pleased to convict the appellant and impose sentence of imprisonment for a period of three months and fine of Rs. 1000/-.

2. The respondents-petitioners filed a Writ Petition before this Court seeking relief of payment of their salaries from the month of June to August 2002. After hearing the parties, this Court was pleased to pass order on 20-12-2002 directing the Management and Department to pay the salaries to the said respondents-petitioners. It appears that the management was to deposit 10% of the share of the salaries of respondents-petitioners in the Salary Account and the Government was to deposit 90% of the share of the salary for the month of June to August 2002. It further appears that the Government had deposited its 90% share of the salary for the said period in the joint account of the salaries of the employees. It further appears that the salary of the employees for the period of August-2002 could not be paid as the Provident Fund Commissioner had withdrawn the amount to the tune of Rs. 12,29,873/- from the said salary account of the employees. On account of this unexpected contingency, it appears that the salaries of the respondents-petitioners for the said period could not be paid. It further appears that the appellant had specifically mentioned in his letter dated 17-3-2003 addressed to the Principal of the College requiring the Management to repay the said amount in the salary account for payment of the employees for the month of August-2002. The appellant has also narrated all the subsequent events, which need not be recorded here.

3. From the details given by the appellant, it is crystal clear that the appellant had no wilful intention to disobey the orders passed by this Court. We have closely examined the entire record and pleadings of the parties. We do not find that there was conscious effort or attempt on the part of the appellant to disobey the orders passed by this Court. We must bear in mind a crucial aspect in the chain of the administration that there is close interdependence inter se from the lower layer or rung of the administration to the highest level or rung of the administration and no one in the chain can be isolated to be held responsible for any lapse in the process. We also cannot forget that stately elephant moves very slowly and as the files have to undergo the journey from table to table, it takes its own speed and time to reach the destination. When we say so, we are not condoning any deliberate attempt on the part of the administration to indulge into red tapism and laxity in the work. Even in the best and efficient administration, the movement of file from one rung of administration to the next rung of the administration till it reaches the decision making authority, it takes its own time. Even in such administration, there is no magic button to be pushed to get desired results. In the present case, the appellant himself was subordinate to his many superior officers in the administration. It is not that he had the key of the Treasury and he could pay himself the salaries to the respondents-petitioners at the moment this Court had passed the orders. It does appear from the record that as soon as this Court had passed the order on 20th December, 2002, 90% share of the State Government was deposited in the salary account of the employees. It was the liability of the management to deposit 10% share, so that the whole salary of the employees could be disbursed. Since there was delay and lapse on the part of the management to deposit 10% share of the salaries of the employees, the respondents could not be paid as per the orders passed by this Court. Meanwhile, a very strange, unforeseen and unexpected event occurred. The Provident Fund Commissioner had withdrawn a very large chunk of the amount from the salary accounts of the employees towards the claim of the provident fund. This abrupt withdrawal of the amount from the account created a big problem for the administration and, particularly, for the appellant. We cannot tell the appellant or any of the officers in the administration that do whatever you want to, but he must obey the orders passed by this Court, particularly, the payment of salaries from the Government coffers. No individual can touch the Government funds. There are Administrative Rules for withdrawal of even a small amount from the Government Treasury. The appellant had made conscious efforts by requiring diversion of an amount to the tune of Rs. 16,75,833/- to be able to pay of the salaries of the employees. It, therefore, cannot be said that the appellant had any mens rea or intention to disobey the orders of the Court deliberately and wilfully. In the Memo of Appeal, he has extensively referred to what steps he had taken to obey the orders passed by this Court. We, are, therefore, satisfied that the appellant is not guilty of contempt of Court, as it cannot be said that he had deliberately and wilfully disobeyed the orders passed by this Court. It is true that in the circumstances explained by him in the Memo of Appeal, which we have summarized hereinabove, it was not possible to pay the salaries of the respondents-petitioners as per the orders of this Court. It is crystal clear from the facts narrated and disclosed by the appellant that it was simply beyond his control to augment the funds in the salary accounts to be able to pay the salaries of the respondent-petitioners so that the orders passed by this Court could be complied with. The appellant has fully satisfied us that he had no deliberate and wilful intention to disobey the orders passed by this Court and he had made all conscious efforts to augment funds in the salary accounts to enable himself to pay their salaries, as per the orders passed by this Court. In our considered opinion, the appellant is not guilty of committing contempt of Court within the provisions of the Contempt of Courts Act, 1971, and Article 215 of the Constitution of India. The appellant has fully explained all the events which clearly establish that he is merely a helpless chain in the entire administration, and it was simply beyond his control to obey the orders passed by this Court. In the case of Niaz Mohammad and Ors. v. State of Haryana and Ors., , the Supreme Court has observed as under:

"The Court while considering the issue as to whether the alleged contemner should be punished for not having complied with and carried out the direction of the court, has to take into consideration all facts and circumstances of a particular case. That is why the framers of the Act while defining civil contempt, have said that it must be wilful disobedience to any judgment, decree, direction, order, writ or other process of a court. Before a contemner is punished for non-compliance of the direction of a court, the Court must not only be satisfied about the disobedience of any judgment, decree, direction or writ but should also be satisfied that such disobedience was wilful and intentional. The civil Court while executing a decree against the judgment debtor is not concerned and bothered whether the disobedience to any judgment, or decree, was wilful. Once a decree has been passed it is the duty of the court to execute the decree whatever may be consequence thereof. But while examining the grievance of the person who has invoked the jurisdiction of the Court to initiate the proceeding for contempt for disobedience of its order, before any such contemner is held guilty and punished, the court has to record a finding that such disobedience was wilful and intentional. If from the circumstances of a particular case, brought to the notice of the court, the court is satisfied that although there has been a disobedience but such disobedience is the result of some compelling circumstances under which it was not possible for the contemner to comply with the order, the court may not punish the alleged contemner."

4. It is, therefore, clear that if the contemner explains compelling circumstances under which he could not obey the order, in that case, the Court may not punish him. We have already explained the compelling circumstances under which the petitioner was placed and, therefore, it cannot be said that he had wilfully disobeyed the order passed by this Court.

5. Time and again, the Supreme Court has been cautioning the courts to exercise this extraordinary jurisdiction to punish any one for committing contempt of Court very sparingly and with due care and caution and for larger interest. In the case of Chhotu Ram v. Urvashi Gulati and Anr., , the Supreme Court began its Judgment by making the following observations :

"The introduction of the Contempt of Courts Act, 1971 in the statute book has been for the purposes of securing a feeling of confidence of the people in general and for due and proper administration of justice in the country. It is a powerful weapon in the hands of the law courts by reason wherefor the exercise of jurisdiction must be with due care and caution and for larger interest."

6. In the case of Anil Ratan Sarkar and Ors., v. Hirak Ghosh and Ors., reported in (2002) 4 SCC 21, the Supreme Court has again reiterated the law of contempt which we have reproduced hereinbelow :

"Before proceeding with the matter further, certain basic statutory features ought to be noticed at this juncture. The Contempt of Courts Act, 1971 has been introduced in the statute-book for the purposes of securing a feeling of confidence of the people in general and for due and proper administration of justice in the country-- undoubtedly a powerful weapon in the hands of the law Courts but that by itself operates as a string of caution and unless thus otherwise satisfied beyond doubt, it would neither be fair nor reasonable for the law courts to exercise jurisdiction under the statute. The observation as above finds support from a decision of this Court in Chhotu Ram v. Urvashi Gulati wherein one of us (Banerjee, J) stated as below : (SCC p. 532, para 2).

"2. As regards the burden and standard of proof, the common legal phraseology 'he who asserts must prove' has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the 'standard of proof, be it noted that a proceeding under the extraordinary jurisdiction of the court in terms of the provisions of the Contempt of Courts Act is quasi-criminal, and as such, the standard of proof required is that a criminal proceeding and the breach shall have to be established beyond all reasonable doubt."

"Similar is the situation in Mrityunjoy Das v. Sayed Hosibur Rahaman and as such we need not dilate thereon further as to the burden and standard of proof vis-a-vis the Contempt of Courts Act-suffice it to record that powers under the Act should be exercised with utmost care and caution and that too rather sparingly and in the larger interest of the society and for proper administration of the justice delivery system in the country. Exercise of power within the meaning of the Act of 1971 shall thus be a rarity and that too in a matter on which there exists no doubt as regards the initiation of the action being bona fide.

It may also be noticed at this juncture that mere disobedience of an order may not be sufficient to amount to a "civil contempt" within the meaning of section 2(b) of the Act of 1971 -- the element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act and lastly, in the event two interpretations are possible and the action of the alleged contemnor pertains to one such interpretation -- the act or acts cannot be ascribed to be otherwise contumacious in nature. A doubt in the matter as regards the wilful nature of the conduct if raised, question of success in a contempt petition would not arise."

7. It will be useful to refer to the observations of the Supreme Court in the case of Mrityunjoy Das v. Saved Hasibur Rahaman reported in AIR 2001 SC 1293, The Supreme Court has given us essence of the underlying philosophy of the law of Contempt of Courts and, therefore, we cannot resist our temptation to reproduce the observations made in para 13 of the said Judgment.

"Before however, proceeding with the matter any further, be it noted that exercise of powers under the Contempt of Courts Act shall have to be rather cautious and use of it rather sparingly after addressing itself to the true effect of the contemptuous conduct. The Court must otherwise come to a conclusion that the conduct complained of tentamounts to obstruction of justice which if allowed, would even permeate in our society vide Murray and Co. v. Ashok Kr. Newatia, , this is a special jurisdiction conferred on to the law Courts to punish an offender for his contemptuous conduct or obstruction to the majesty of law. It is in this context that the observations of this Court in Murray's case (supra) in which one of us (Banerjee, J) was party needs to be noticed (Para 10 of AIR):

'The purpose of contempt jurisdiction is to uphold the majesty and dignity of the Courts of law since the image of such a majesty in the minds of the people cannot be led to be distorted. The respect and authority commanded by Courts of Law are the greatest guarantee to an ordinary citizen and the entire democratic fabric of the society will crumble down if the respect for the judiciary is undermined. It is true that the judiciary will be judged by the people for what the judiciary does, but in the event of any indulgence which even can remotely be termed to affect the majesty of law, the society is bound to lose confidence and faith in the judiciary and the law Courts thus, would forfeit the trust and confidence of the people in general."

8. We are very clear in our mind that the jurisdiction under the Contempt of Courts Act and Article 215 is intended wholly and only to uphold the majesty of the law and the dignity of the Institution as a strong pillar of the democracy. This jurisdiction is to be exercised to over-reach injustice and to set right miscarriage of justice wherever and whenever found. It is certainly not intended to create judicial terrorism in the Society with this powerful weapon in the hands of the Judges. Judicial terrorism is anti-thesis of Justice. It is most unfortunate that an element of terrorism or dreaded habits have slowly crept in our Institution also. It is on account of unquestionable powers with the Judiciary. Even the Registry tries to terrorise the subordinate judges time and again without any justification when they can be corrected otherwise in a dignified manner. This sense to terrorise must be put down in time before it destroys the prestige and dignity of our Institution. We must command, respect and never coerce to get and retain it, much less by the weapon of Contempt of Court. We have to wield this weapon very carefully and sparingly only in the interest of justice. The then Chief Justice of India, Gajendragadkar, J, had very aptly communicated the following message to all of us;

"Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or the status of the Court." .

9. We have to consider the facts of this case in the search light of the above case law. We are fully satisfied that the appellant was not guilty of wilful disobedience of the order passed by this Court and that there were compelling circumstances inherent and inbuilt in the system. We are unable to single out the appellant to find fault with him to punish him. We also cannot lose sight of the fact that as soon as it was possible for the appellant, he has obediently carried out the order passed by this Court. We are, therefore, satisfied that the learned Single Judge was not right and justified in punishing the appellant by finding him guilty of wilful disobedience of the orders passed by this Court and sentencing him for 3 months imprisonment and fine of Rs. 1000/-. We, therefore, hold him not guilty of any offence under the Contempt of Courts Act, and under Article 215 of the Constitution of India. We, therefore, honourably acquit him from the offence of contempt of Court, for which the learned Single Judge has convicted the appellant and sentenced him for a period of three months and fine of Rs. 1000/-. We quash and set aside the impugned order passed by the learned Single Judge. Fine if paid, be refunded to him.

10. The learned counsel for the respondents-petitioners has stated that the respondents-petitioners have received their full salaries and they have no grievance of any nature against the appellant. It is admitted position that the appellant has taken pains to obey the orders passed by this Court and has purged himself from the charge of the contempt of Court by fully complying with the order passed by this Court. He has tendered his unconditional apology, which we accept and we relieve him from the charge of committing the contempt under Article 215 of the Constitution of India. The appeal is allowed. In the circumstances, there shall be no orders as to costs.