Ram Bilash Mahto And Ors. vs Food Corporation Of India Workers ...
2016 Latest Caselaw 7445 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                   Reserved on: 14.07.2016
                                 Pronounced on: 19.12.2016

+      CONT. APP. (C) 24/2012

       RAM BILASH MAHTO AND ORS.                    ......Appellants
                Through: Sh. Sanjiv Bahl, Advocate.

                        Versus

       FOOD CORPORATION OF INDIA WORKERS UNION AND ORS.
                                                  .......Respondents

Through: Sh. Rajiv Talwar, Advocate, for Respondent Nos. 1 and 2.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA MR. JUSTICE S. RAVINDRA BHAT %

1. In this contempt appeal, the appellants are aggrieved by the order dated 19.01.2012 passed by the learned Single Judge in Cont. Cas (C) No. 40/2010 holding them guilty of contempt of court and sentencing them to simple imprisonment for 5 days and a fine of `1000/-.

2. The first respondent (hereinafter "the Union") is a registered trade Union under the Trade Unions Act, and the second respondent is its elected President. The election was held in furtherance of the orders of this Court dated 15.12.2006 in FAO(OS) No. 33/2006 and common judgement dated 31.03.2006 arising out of Suit Nos. 681/1999 and Suit No. 2349/2000. In terms of the said orders, the elections of the Union were to be conducted under the supervision of a court commissioner duly appointed by the court.

CONT. APP.(C) 24/2012 Page 1 During the said period the appellants allegedly dissolved the Union through Resolution dated 15.06.2008. The respondents, therefore, initiated contempt proceedings.

3. The appellants in their counter affidavits submitted that Sh. N. Das and other members of the Union were duly elected as office bearers through elections conducted on 11.04.1998 and as on 15.06.2008, Sh. N. Das was the president of the Union. Additionally, between 31.03.2006 and 06/07.08.2009, when elections were conducted, other disputes had arisen between different factions of the Union and there were allegations of usurpation of funds by meant for members by other office bearers. This prompted the President to initiate the process of dissolution of the Union on the representation of the majority members of the Union. The Registrar of the Trade Union on verification of facts accepted this dissolution. It was further stated that the Union aggrieved by the dissolution has filed a substantive suit and as such contempt proceeding do not lie.

4. The learned Single Judge, by an order dated 19.01.2012 in Cont. Cas.(C) No. 40/2010 held appellants guilty of contempt of court. The appellants appealed against this order before the Division Bench of Delhi High Court - Cont. Appeal No. 7/2012 which was withdrawn and replaced by an unqualified apology before the learned Single Judge by way of their affidavit dated 23.04.2012. After considering the apology, the learned Single Judge sentenced the appellant to simple imprisonment of 5 days and a fine of `1000/-. The appellants are aggrieved by the said order, impugned in this proceeding.

CONT. APP.(C) 24/2012 Page 2

5. It is first argued that the appellants were wrongly convicted as there was no deliberateness in their action. Here it is submitted that the controlling expression in the Contempt of Courts Act, is 'Willful'. Learned counsel argues that in the present case, the action of the appellants was not willful; he relies on the decision of the Supreme Court in Ashok Paper Kamgar Union v. Dharam Godha (2003) 11 SCC 1 where it was held that the word "willful":

"means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore, in order to constitute contempt the order of the Court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extraordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case."

Likewise, the appellants also rely on Anil Ratan Sarkar v. Hirak Ghosh 2002 (4) SCC 21 as well as on Indian Airports Employees' Union v. Ranjan Chatterjee (1999) 2 SCC 537 where it was held that:

"7. It is well settled that disobedience of orders of the court, in order to amount to "civil contempt" under Section 2(b) of the Contempt of Courts Act, 1971 must be "wilful" and proof of mere disobedience is not sufficient (S.S. Roy v. State of Orissa). Where there is no deliberate flouting of the orders of the court but a mere misinterpretation of the executive instructions, it would not be a case of civil contempt (Ashok Kumar Singh v. State of Bihar)."

CONT. APP.(C) 24/2012 Page 3

6. The appellants argue that the learned Single Judge failed to take into account the General Body meeting that was called on 15.06.2008 where a vote was undertaken to dissolve the Union. They also contend that there was no direction issued by the court restraining them (i.e the appellants) from participating in the Union's General Body Meeting that called for dissolution according to the Constitution of the Union. Reliance is placed on the Resolution, which ultimately sought to dissolve the first respondent Union, to say that the present appellants did not initiate it and that those responsible for the action have not been indicted. It is also stated that between 10-

12.04.2008, the Union held its conference in Mohali, Chandigarh which was attended by its office bearers. Since the Union did not have a General Secretary, Sh. N. Das presided over the said meeting as the President and various members from across the country had approached and stated their grievances to the effect that new members were being enrolled in the Union in his name after charging enrollment fees and that no account whatsoever was being given either to the executive committee members or to some of the office bearers of the Union. There were other allegations of misappropriation etc. by others in the name of the Union. Therefore, Sh. N. Das, at the request of the majority members of the Union and after a requisition from 25% of the executive members issued a notice dated 05.05.2008, calling for an emergency meeting of the executive members and the Union office bearers to be held on 20.05.2008. This was in terms of the Constitution of the Union. Ultimately, in terms of the Clause 22 of the Constitution, giving requisite notice dissolved it and in fact, 43011 members were present, who took the conscious decision and the Resolution, dated 15.06.2008 was passed to carry into effect the said decision. It was argued

CONT. APP.(C) 24/2012 Page 4 that the appellants have not committed any violation of any of the orders by the Court in Suit No. 681/1999, Suit No. 2349/2000 and FAO (OS) No. 33/2006. Furthermore, it is argued that the Union filed a civil action, Title Suit no. 204/2009 before the court of Sr. Civil Judge, at Alipore, Kolkata, where the Resolution dated 15.06.2008 and the order dated 07.07.2008 passed by the Registrar, Trade Unions, West Bengal, registering the dissolution of the Union are under challenge and the same is yet to be adjudicated upon and as such, the question of invoking the contempt jurisdiction did not arise.

7. It was further stated that the Resolution dated 15.06.2008 was also brought to the notice of Ms. Justice Usha Mehra, Court Commissioner, as well as. Registrar, Delhi High Court through a letter written by Sh. N. Das, which was duly received by them. The appellants argue that there was no direction to them, restraining participation in the dissolution of the Union in terms of its Constitution. The learned Single Judge failed to appreciate that once a substantive suit was filed by the Union which is pending before the competent court at Kolkata for adjudication, the question of initiation of contempt proceedings could not arise. Learned counsel argued that the learned Single Judge further failed to appreciate that the commission of contempt is to be strictly evidenced from the violation of the directions on the face of it and the strict interpretation of the orders against which the contempt is alleged, is to be given; in other words, contempt proceedings should not be initiated on the basis of the inferences or analogies. It is argued that in the absence of an explicit order restraining the appellants or others from holding a meeting or participating in one which proposes to

CONT. APP.(C) 24/2012 Page 5 dissolve the Union, they could not be held responsible for it, especially because they were workers, guided by Sh. N. Das. It was argued on their behalf that they were under the bona fide belief that the information provided by them to the Court Commissioner and Registrar of this Court was sufficient information in this regard. It is also argued that the elections of the Union were directed to be held and the defendants therein were directed not to project themselves as its General Secretary/Office Bearers. In the meantime, the appellants herein signed the Resolution dated 15.06.2008 and participated in the process of dissolution of the Union, representing themselves as the members of the Executive Committee, not as the General Secretary/Office Bearers of the respondent Union and as such the appellants ought not to have been held liable for contempt. It is also argued that the appellants are all aged, nearly 60 years and a prison term would be oppressive and harsh.

8. Learned counsel for the appellants argued that having regard to proviso to Section 12 of the Contempt of Courts Act, the learned Single Judge ought to have accepted the apology offered, because the law on the subject is settled in that any contrite behavior or apology given, even after the conviction is recorded, should ordinarily be accepted and rarely rejected. Reliance was also placed on the judgments reported as Niaz Mohd. v. State of Haryana (1994) 6 SCC 332.

9. The respondents argue that the actions of the appellants, which resulted in their conviction, were in flagrant violation of the decree of permanent injunction issued on 31.03.2006 in CS (OS) No. 2349/2000 which had categorically restrained them to "not project themselves as the General

CONT. APP.(C) 24/2012 Page 6 Secretary/Office bearers of the union in the meantime" i.e till completion of the election process by the court appointed commissioner. This decree was confirmed in an appeal, RFA (OS) 33/2006 by the Division Bench, in its judgment and order dated 15.12.2006. Mr. Talwar, learned counsel said that the appellants, in collusion and in connivance with few others led by Sh. N. Das fabricated the Resolution dated 15.06.2008 of the alleged General Meeting of the Union even though no such meeting was held on 15.06.2008, which has been confirmed by the members by their letter, dated 16.10.2009 to the Registrar of Trade Unions, West Bengal. A letter, dated 16.10.2009 and an affidavit dated 22.10.2009 by Sh. Sajan Paswan and Sh. Gopal Haldar are relied on to say that though they were alleged signatories, they disputed the signatures. It is also argued that the Union is an old institution with membership of 53,000 spread over the country and the conscious action of the appellants in overreaching the court was a clear contempt, which deservedly resulted in their conviction and sentence.

10. The question for this court's consideration is limited: it is whether contempt of the court has been committed by the appellants having regard to the overall circumstances of the case. The order concerning the conduction of election procedure under supervision of the court commissioner duly appointed by the court, as is apparent, has been openly flouted. The reasons cited by the appellants for such deviation is that the other members had been siphoning funds meant for members and the Union. However, in such a scenario, the right method of redressing it would have been to approach the court with a complaint and seek redress or obtain approval of the court before taking the said measure. The appellants' argument about their

CONT. APP.(C) 24/2012 Page 7 unawareness of the designs of Sh. N. Das is not acceptable. Nor is their defense that the matter is sub judice in civil proceedings before a Kolkata court, reasonable, under the circumstances of this case. The appellants clearly held themselves out as members of the concerned official body, even though there was an injunction against such course of action. In this regard, this court finds no infirmity with the judgment of the learned Single Judge. The appellants further argued that they had no intention to disrespect and violate the orders of the court, much less willfully. The appellants argued that they acted bonafide under the guidance of Sh. N. Das in dissolving the Union. The court order had further mandated them to not be represented as office bearers until fresh elections are conducted. The appellants are in violation of the said direction as well. The act of dissolution interfered with the Union's conduction of election process and with the administration of judicial proceedings, contrary to what was argued by the appellants.

11. The next question is whether the learned Single Judge erred in not accepting the apology furnished by the appellants. In Debabrata Bandhopadhyay v. State of West Bengal, (AIR 1969 SC 189), it was observed that an apology should be offered clearly and immediately, a belated apology may purge contempt but there is always a risk of it not being accepted. In the present scenario, the appellants tendered an apology after withdrawing their appeal against the initial contempt order. This shows a lack of remorse on their part. Even if the act of withdrawing the appeal to file an apology is overlooked, the appellants' action of dissolving the Union without prior consultation with the court showcases their unfavourable attitude against the court's mandate.

CONT. APP.(C) 24/2012 Page 8

12. In Deenabandhu Saha v. State of Orissa AIR 1972 SC 175, the Supreme Court held that when the Court is convinced about the sincerity of the apology tendered by the contemnors through their counsel, at the time of hearing, it deserves acceptance even though it was not tendered earlier or it wasn't in writing. It was further observed that punishment for contempt is called for when the lapse is deliberate and in disregard of one's duty and in defiance of authority. Such action should not be taken in an unclear case. In the present case, there is a clear defiance of the authority of the Court's order. In Rajni Parekh Arts KB Commerce and BCJ Science College Khambhat v. Mahendra Ambalal Shah AIR 1986 SC 1074, the deliberate flouting of directions given by the High Court and breach of an undertaking given to the Supreme Court in a service matter was held to be contempt. The party there tendered an unconditional apology after service of notice of contempt and fully complied with the orders of the Court and the undertaking. The Supreme Court nevertheless, held them guilty of contempt. In L.D. Jaikwal v. State of U.P., AIR 1984 SC 1374, the court noted that it cannot subscribe to "the 'slap-say sorry- and forget' school of thought in administration of contempt jurisprudence. Saying 'sorry' does not make the slapper poorer." The same views were expressed in T.N. Godavarman Thirumulpad v. Ashok Khot & Anr AIR 2006 SC 2007. Furthermore, it has been ruled by the Supreme Court that an apology offered at the time when the contemnor finds that the Court is about to impose punishment, is no apology and can be rejected (Debabrata Bandopadhyay & Ors. v. The State of West Bengal & Anr. AIR 1969 SC 189; Mulkh Raj v. The State of Punjab AIR 1972 SC 1197; The Secretary, Hailakandi Bar Association v. State of Assam & Anr. AIR 1996 SC 1925; C. Elumalai & Ors. v. A.G.L. Irudayaraj

CONT. APP.(C) 24/2012 Page 9 & Anr. AIR 2009 SC 2214 and Ranveer Yadav v. State of Bihar, (2010) 11 SCC 493).

13. Having regard to the above discussion, this Court holds that the views expressed in the impugned judgment do not call for interference, either as to conviction or sentence, the terms of which are proportionate and reasonable. The appellants shall surrender to the sentence before the Registrar General of this Court on 15thJanuary, 2017. The appeal is, therefore, dismissed.

S. RAVINDRA BHAT (JUDGE)

DEEPA SHARMA (JUDGE) DECEMBER 19, 2016

CONT. APP.(C) 24/2012 Page 10