Calcutta High Court (Appellete Side)
Srmb Srijan Private Limited And Another vs Rajesh Kumar Kaushal on 4 October, 2024
4th October,
2024
(AK)
02-03
C.P.A.N 1154 of 2023
In
WPA 9990 of 2020
With
WPA 24267 of 2019
SRMB Srijan Private Limited and another
Vs.
Rajesh Kumar Kaushal, Director General of Central
Public Works Department
Mr. Sakya Sen
Mr. Arnab Das
Ms. Syeda Romana Sultan
...for the petitioners.
Mr. Kumar Jyoti Tewari
Ms. Amrita Pandey
...for the alleged contemnor.
1. The supplementary affidavit-of-compliance filed
today be kept on record.
2. Learned counsel for the alleged contemnor submits
that the direction of this court, as subsequently
modified by the Division Bench of this court, has
been substantially complied with.
3. It is argued that in the event the petitioners have a
grievance with regard to the newly introduced
Clause 4.10.1 of the CPWD Works Manual 2024,
which replaces Clause 27.2 which was directed to
be amended appropriately by the Division Bench,
2
there cannot be any question of contempt but the
petitioners have to prefer a fresh challenge.
4. Learned counsel for the alleged contemnor takes
the court through paragraph-5 of the Division
Bench judgment which observes that the CPWD
guidelines dated February 17, 2021 uses the
expression "may" which shows that the name of
"reputed brands" are merely illustrative and not
exhaustive.
5. By virtue of Clause 4.10.1, which now replaces the
offending Clause 27.2, it has only been provided
that special conditions shall be incorporated by the
NIT approving authority "keeping in view the
guidelines" issued by the Directorate from time to
time in this regard, which are available on the
CPWD website.
6. It is pointed out that the said guideline uses the
expression "may", which has been held by the
Division Bench itself to be illustrative and not
exhaustive.
7. Thus, reliance on the said guidelines would merely
be illustrative. As such, the order of the Division
Bench has been fully complied with.
8. In support of his contentions, learned counsel for
the alleged contemnor cites Sudhir Vasudeva,
Chairman and Managing Director, Oil and Natural
3
Gas Corporation Limited and others vs. M. George
Ravishekaran and others reported at (2014) 3 SCC
373 where the Supreme Court, inter alia, observed
that only such directions which are explicit in a
judgment or order or are plainly self-evident ought
to be taken into account for the purpose of
consideration as to whether there has been any
disobedience or willful violation of the same.
Decided issues cannot be reopened, nor can the
plea of equities be considered. No order or direction
supplemental to what has been already expressed
should be issued by the court while exercising
jurisdiction in the domain of the contempt law.
9. Learned counsel next cites K. Arumugam vs. V.
Balakrishnan and others reported at (2019) 18 SCC
150 where the Supreme Court observed that in
exercise of contempt jurisdiction the court cannot
travel beyond the four corners of the order. It was
observed in the said case that the court had only
directed the authorities to ensure fair and
reasonable compensation be sanctioned to the first
respondent and paid at the earliest. The officers
had quickly acted in order to comply with the
direction of the High Court and such swift action
prompted the Supreme Court to observe that there
was no disobedience of the order of the court.
10. Learned counsel for the alleged contemnor
thereafter relies on Ram Kishan vs. Tarun Bajaj and
others reported at (2014) 16 SCC 204, where the
Supreme Court, in paragraph 11, observed that the
contempt jurisdiction is a powerful weapon in the
hands of the court but that by itself operates as a
string of caution and unless, thus, otherwise
satisfied beyond reasonable doubt, it would neither
be fair nor reasonable for the law courts to exercise
jurisdiction under the Act. The proceedings are
quasi-criminal in nature, and therefore, standard of
proof required in these proceedings is beyond all
reasonable doubt. The Supreme Court went on to
observe that "willful" in the context of contempt
means knowingly intentional, conscious, calculated
and deliberate with full knowledge of consequences
flowing therefrom. It excludes casual, accidental,
bona fide or unintentional acts or genuine inability.
Willful acts do not encompass involuntary or
negligent actions. The act has to be done with a
"bad purpose or without justifiable excuse or
stubbornly, obstinately or perversely". Willful act is
to be distinguished from an act done carelessly,
thoughtlessly, heedlessly or inadvertently, the
Supreme Court held.
11. Learned counsel thereafter places reliance on
Ashok Kumar and others v. Depinder Singh Dhesi
and others reported at (2019) 8 SCC 280 where the
Supreme Court, while quoting from J.S. Parihar v.
Ganpat Duggar reported at (1996) 6 SCC 291,
observed that it is seen that once there is an order
passed by the Government on the basis of the
directions issued by the court, there arises a fresh
cause of action to seek redressal in an appropriate
forum. After re-exercising the judicial review in
contempt proceedings, a fresh direction passed by
the learned Single Judge was held not to be given to
redraw the seniority list.
12. Upon a careful consideration of the judgments
cited, the facts of the present case are required to
be looked at carefully.
13. The Division Bench, in the operative part of its
order, while modifying the order of the single
Judge, in no uncertain terms held that instead of
quashing the modified Clause 27.2, the CPWD was
to appropriately amend their Work Manual to be in
consonance with the Notification issued by the
Ministry of Steel, Government of India, as done by
the notifications referred to thereinabove.
14. Be it noted that the Division Bench, in the prior
paragraphs, took into consideration several
notifications issued by the Ministry of Steel, inter
alia, dated May 12, 2016, August 9, 2016,
December 14, 2016 and February 7, 2017.
15. At the present instance, the said Clause 27.2 has
been submitted by the alleged contemnor to have
been deleted.
16. However, the order of the Division Bench did not
stop at such deletion but directed to amend the
said clause "in consonance with the notification".
17. The new Clause 4.10.1, which according to the
alleged contemnor replaces Clause 27.2, is as
follows:
"4.10.1: Special Conditions of Cement and Steel
Special conditions shall be incorporated by the NIT
approving authority keeping in view the guidelines
issued by the Directorate from time to time in this
regard, which are available on CPWD website".
18. A bare perusal of the said clause shows that the
same squarely relies on the guidelines issued by
the Directorate from time to time to be incorporated
by the NIT approving authority.
19. The expression "shall" in the said clause mandates
the NIT approving authority to take into account
the guidelines issued by the Directorate.
20. The guidelines issued by the Directorate, again,
have been annexed by the alleged contemnor
himself to the first affidavit-of-compliance, as
incorporated in the Office Memorandum dated
August 14, 2024.
21. Notably, Clause 10 of the said Office Memorandum,
which has been captioned to be "guidelines" for use
of TMT Steel/Low Alloy Steel reinforcement bars in
CPWD works, states categorically that it is decided
that the reinforcement steel bars produced by
plants of certain named entities, namely SAIL,
RINL, TATA, JSW and JSPL which are in wider use
in CPWD may be continued to be used as preferred
make in NITs in respect of Bar Set-I mentioned in
paragraph no.9 above and annexure (1)(c).
22. Thus, Clause 4.10.1 of the CPWD Works Manual
2024, read in conjunction with the guidelines as
crystallized in Clause 10 of the Office Memorandum
dated August 14, 2024, leaves no option for the NIT
issuing authorities not to incorporate the names of
the specific named entities as the preferred makes
in the NIT‟s in respect of Bar Set-I.
23. If certain particular steel producers‟ brands are
mentioned as „preferred makes‟ in an NIT, it would
be a cake-walk for them to be selected as
successful bidders if they participate, since they
would mandatorily have to be chosen on priority
basis over other manufacturers who participate in
the tender and otherwise qualify on equal footing as
such preferred manufacturers.
24. Before coming to the notifications-in-question,
which were also considered by the Division Bench,
the position prior to those is evinced from a
notification dated February 12, 2016, which
contained a chart which incorporated certain
specific names of steel producers under the heads
"Integrated Steel Producers" and "Primary Steel
Producers".
25. Notably, all the entities named in Clause 10 of the
Office Memorandum dated August 14, 2024 were
incorporated under the heading "Integrated Steel
Producers" in the said chart.
26. There was a paradigm shift in the stand of the
Ministry of Steel, Government of India, as evidenced
by its subsequent notifications. It is those
subsequent notifications which were considered by
this court and the Division Bench, the latter
directing Clause 27.2 of the CPWD Manual to be
amended in consonance with such subsequent
notifications.
27. Moving on to the said subsequent relevant
notifications, in the Notification dated May 12,
2016 of the Ministry of Steel, Clause 6 clearly
stated that no steel producers will be
classified/certified as „Integrated Steel Producers‟
and so on and so forth.
28. Again, the order issued by the Under Secretary to
the Government of India on behalf of the Ministry of
Steel on August 9, 2016 mentioned that with the
abolition of classification of steel producers in India
vide the Notification dated May 12, 2016, no steel
producer is to be classified/certified as „Integrated
Steel Producers, etc.‟
29. A further Notification of the Ministry of Steel dated
December 14, 2016 reiterated that despite the
notification dated May 12, 2016,
complaints/grievances were being received from
various organizations of the steel industry that
despite clear orders that no steel producers will be
classified as main/major/others by the Ministry,
the departments like CPWD/Railways etc. are not
changing the procurement policies and continuing
to offer a step-motherly treatment to the products
of smaller manufactures.
30. Clause 4 of the self-same notification further states
that in view of the above, it is reiterated that the
listing of producers by JPC will be purely for
statistical purpose only and will have no bearing on
the quality of steel produced, and it is up to the
users to ascertain the quality of the steel products
to be procured as per relevant standards.
31. Another Notification dated February 7, 2017 had to
reiterate again that it had come to the notice of the
Ministry of Steel, Government of India that despite
removal of classification as to Primary or Secondary
producer, etc., the user departments were still
continuing with this classification. In this
connection, it was once again reiterated that the
Ministry has no classification in terms of Primary
and Secondary producers.
32. Thus, the backdrop of the present case is defined
by the notifications as indicated above, which were
also considered by the Division Bench.
33. Although the Division Bench was of the opinion
that the guidelines formulated by the Directorate
are merely illustrative in nature, what the alleged
contemnor has now done is to introduce Clause
4.10.1 instead of the offending Clause 27.2, thereby
mandating the NIT approving authorities (use of the
expression "shall" in Clause 4.10.1 is to be noted in
this context) to keep in view the guidelines issued
by the Directorate, as reflected in the Office
Memorandum dated August 14, 2024, paragraph
no.10 of which again reintroduces what was
specifically deprecated and shunned by the
Ministry of Steel of the Government of India time
and again.
34. This court and the Division Bench, while modifying
the order of this court, clearly directed the CPWD to
modify the Clause 27.2 not in thin air but in
consonance with the notifications issued by the
Ministry of Steel, Government of India.
35. Despite the Ministry of Steel having squarely
deprecated in the said notifications the use of
classifications, Clause 10 of the Office
Memorandum-in-question has now specifically
named certain entities to be treated as preferred
entities which entities were specifically mentioned
in one of the notifications under the head
Integrated Steel Producers, which classification is
one of the categories which has clearly been deleted
and obliterated by the Ministry of Steel.
36. Thus, what the CPWD could not do directly has
been done by it indirectly and in an oblique and
surreptitious manner.
37. Such act on the part of the CPWD, represented by
the alleged contemnor, is not only devious, crafty
and clever but is a clearly willful and deliberate
attempt to bypass and obviate the direction of this
court and to reintroduce that which was specifically
directed by the Division Bench to be removed.
38. This is a glaring example of a willful act with bad
purpose and without justifiable excuse done
stubbornly, obstinately and perversely, as
deprecated by the Supreme Court in Ram Kishan
(supra), cited on behalf of the alleged contemnor
himself.
39. There is no carelessness or thoughtlessness or
negligence or inadvertence in the said act; rather
the act is in deliberate disobedience of the order of
this court, as modified by the Division Bench, and
thus contumacious.
40. In K. Arumugam (supra), the Supreme Court
considered that the direction of the High Court to
grant compensation had been swiftly done by the
officers. The High Court had then gone on to alter
the rate of compensation which was deprecated as
arbitrary by the Supreme Court.The said factual
scenario has no comparison with the present case
and thus, the said ratio is not applicable in the
present case at all.
41. In Ashok Kumar (supra), also cited by the alleged
contemnor, the Supreme Court was considering a
case where a direction to give effect to a seniority
list had been issued to the alleged contemnors but
in contempt jurisdiction, the original order was
revisited and a fresh direction was given by a
learned Single Judge to redraw the seniority list,
which is not the case here.
42. In Sudhir Vasudeva (supra) the Supreme Court
clearly observed that only such directions which are
explicit in a judgment and order or are plainly self-
evident ought to be taken into account for the
purpose of consideration as to whether there has
been any disobedience or willful violation of the
same.
43. It is expected that in a country like India, the top
brass of the CPWD is manned with sufficiently
educated and intelligent people having sufficient
qualification to understand the purport of a clear
order of a Division Bench of this court to the effect
that a particular clause was directed to be amended
in consonance with the notifications of the Ministry
of Steel. There was no ambiguity in such direction,
which was explicit and self-evident.
44. In view of the above observations, the alleged
contemnor has specifically flouted the clear
message given in the order of the Division Bench,
thus rendering himself guilty of willful and
deliberate violation of the order of this court.
45. The courts have since long been lenient in
contempt jurisdiction. Taking undue advantage of
such mellow comfort of self-imposed abstinence by
courts, different authorities have often been
encouraged to disregard judicial orders with
impunity.
46. Just as the courts ought to be circumspect and
cautious in exercising the extreme nature of
contempt jurisdiction, the inaction of the courts in
the garb of being lenient in cases of genuine
disregard and wilful and deliberate disobedience of
orders of court would only give rise to a flurry of
violation of orders of the courts by different
authorities at different points of time.
47. As such, a clear message should go to violators that
an order of a court is not passed by an individual
but is the exercise of the sovereignty of the country
itself through the medium of the court and ought to
be obeyed as sacrosanct.
48. The Rule of Law demands that the contempt
jurisdiction is taking seriously, albeit upon applying
the strict standard of proof "beyond reasonable
doubt", if it is found that a contumacious action
has been deliberately committed by any person,
whosoever he or she may be.
49. Such being the case in the present instance, I do
not find any reason not to issue a Rule of contempt
to the alleged contemnor.
50. Accordingly, a Rule do issue calling upon the
alleged contemnor to show cause as to why penal
action as prayed for in the contempt application
shall not be taken against him for willful and
deliberate violation of the order of this court, as
modified by and merged in the order of the Division
Bench as indicated above, by reintroducing in an
oblique fashion through the back-door the self-
same mischief of the clause (Clause 27.2 of the
CPWD Manual) which was directed to be amended
in consonance with the notifications of the
Government of India, Ministry of Steel, in direct
violation of the said notifications of the Ministry of
Steel, Government of India.
51. The Rule is made returnable on November 29, 2024
at 10.30 a.m., when the alleged contemnor shall be
personally present in court to show cause.
Rule drawn in a separate sheet
(Sabyasachi Bhattacharyya, J.)
