Mridul Kumar Laskar vs The State Of Assam And 3 Ors
2023 Latest Caselaw 1774 Gua

                                                              Page No.# 1/17

GAHC010066362023




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : WP(C)/1732/2023

         MRIDUL KUMAR LASKAR
         A REGISTERED PROPRIETORSHIP FIRM OWNED AND REPRESENTED BY
         ITS PROPRIETOR SRI MRIDUL KUMAR LASKAR, SON OF LATE SURENDRA
         MOHAN LASKAR, HAVING ITS REGISTERED OFFICE AT TRIPURA ROAD, 1
         NO. UDAYAN PATH, BELTOLA, GUWAHATI, PIN- 781028.



         VERSUS

         THE STATE OF ASSAM AND 3 ORS.
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
         GOVERNMENT OF ASSAM, DEPARTMENT OF AGRICULTURE, DISPUR,
         GUWAHATI-781006, ASSAM

         2:THE SECRETARY

          DEPARTMENT OF AGRICULTURE
          GOVERNMENT OF ASSAM
          DEPARTMENT OF AGRICULTURE AND HORTICULTURE
          DISPUR
          GUWAHATI-781006
          ASSAM

         3:THE DIRECTOR OF AGRICULTURE
          GOVERNMENT OF ASSAM
         AGRICULTURAL COMPLEX
          KHANAPARA
          G.S. ROAD
          GUWAHATI
          PIN- 781022.

         4:THE TECHNICAL BID EVALUATION COMMITTEE
          REPRESENTED BY ITS MEMBERS DULY CONSTITUTED BY THE OFFICE
                                                                       Page No.# 2/17

            OF THE DIRECTORATE OF AGRICULTURE
            ASSAM
            KHANAPARA.

            5:THE TECHNICAL BID EVALUATION COMMITTEE
             REPRESENTED BY ITS MEMBERS DULY CONSTITUTED
             BY THE OFFICE OF THE DIRECTORATE OF AGRICULTURE
             KHANAPARA
             G.S. ROAD
             GUWAHATI
             PIN-781022
            ASSA

Advocate for the Petitioner   : MR. H. BURAGOHAIN

Advocate for the Respondent : MR. B CHOUDHURY(SC, AGRI. DEPARTMENT)




             Linked Case : WP(C)/760/2023

            MRIDUL KUMAR LASKAR
            A REGD PROP FIRM OWNED AD REP. BY ITS PROP SRI MRIDUL KUMAR
            LASKAR
            S/O- LATE SURENDRA MOHAN LASKAR
            HAVING ITS REGD OFFICE AT TRIPURA ROAD
            1 NO. UDAYAN PAATH
            BELTOLA
            GUWAHATI
            PIN- 781028


             VERSUS

            THE STATE OF ASSAM AND 2 ORS
            REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM
            DEPTT OF AGRICULTURE AND HORTICULTURE
            DISPUR
            GHY- 781006
            ASSAM

            2:THE SECRETARY
            DEPTT OF AGRICULTURE
             GOVT OF ASSAM
             DEPTT OF AGRICULTURE AND HORTICULTURE
                                                                                Page No.# 3/17

              DISPUR
              GUWAHATI- 781006
              ASSAM
              3:THE DIRECTOR OF AGRICULTURE
              GOVT OF ASSAM
              AGRICULTURE COMPLEX
              KHANAPARA
              GS ROAD
              GUWAHATI
              PIN- 781022
              ------------

Advocate for : MR. K N CHOUDHURY Advocate for : SC AGRI. DEPARTMENT appearing for THE STATE OF ASSAM AND 2 ORS

BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

04.05.2023.

Order

Certain circumstances, which were not too palatable, had propelled this Court to pass an order on 12.04.2023 in the present two writ petitions which, for the sake of clarity, is extracted hereinbelow:

"Heard Shri K.N. Choudhury, learned Senior Counsel assisted by Shri H. Buragohain, learned counsel for the petitioner. Also heard Shri B. Choudhury, learned Standing Counsel, Agriculture Department. Shri U.K. Nair, learned Senior Counsel has appeared for the newly impleaded respondent no. 5.

In terms of the earlier order of this Court, Shri Choudhury, the learned Standing Counsel of the Department has produced the records of the case which pertains to processing of the respective bids. The records also include the Note Sheets. A cursory perusal of Page No.# 4/17

the same however indicates that certain works were allotted in spite of a Stay Order passed by this Court in the connected WP(C)/760/2023.

Shri Choudhury, the learned Standing Counsel however informs that as per instructions received by him, those works orders have been cancelled on the intervention of the higher authorities.

Be that as it may, the act on the part of the Director of Agriculture, Assam prima facie appears to be contemptuous.

Under those circumstances, this Court is of the view that the said Director, Shri Anant Lal Gyani is required to be present in the Court in person and explain his cond as mentioned above.

Let these cases be listed on 19.04.2023 at 10.30. A.M.

Since Shri Choudhury, the learned Standing Counsel of the Department is present, let a copy of this order be furnished to him during the course of the day for onward transmission.

It is made clear that there is no requirement of issuance of notice by any other mode to the said officer.

The records for a time being are returned back to Shri Choudhury, the learned Standing Counsel."

02. Pursuant to the said order, the incumbent, Shri Anant Lal Gyani, the Director of Agriculture, Government of Assam had appeared personally on 19.04.2023 and had also filed an affidavit seeking apology and had also put forward justifications for issuing work orders in terms of an email by the World Bank. Since the version was not consistent with the materials which appeared from the records produced before the Page No.# 5/17

Court, the incumbent was directed to file an affidavit explaining the same. The said order dated 19.04.2023 is also quoted hereinbelow:

"Pursuant to the order dated 12.04.2023, Shri Anant Lal Gyani, the Director of Agriculture, Govt. of Assam is personally present.

Shri B Choudhury, learned Standing Counsel, Agriculture Department, Assam submits that an affidavit has also been filed today by serving a copy to the other side which, however, is not with the records. However, the learned Standing Counsel has passed on a copy of the same.

The affidavit contains an apology by the incumbent who is personally present.

The abovenamed incumbent has also been heard-in-person and as a part of his explanation, he submits that Work Orders were inadvertently issued by misinterpreting the order of this Court and also in terms of an email by the World Bank.

Juxtaposed with the records, the email appears to have been received on 06.04.2023 at 5.04 pm while the Work Orders were also issued on 06.04.2023. The said action does not appear to be consistent with the version of the aforesaid incumbent.

Shri Anant Lal Gyani, the Director is, accordingly directed to file an affidavit explaining the same for which a week's time is granted.

Accordingly, list these matters on 21.04.2023.

Let the matters be listed again on 26.04.2023 on which date, the abovenamed officer will remain personally present in Court."

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03. The affidavit, as directed vide the order 19.04.2023 was, however filed only on 26.04.2023 which was the next date fixed. Accordingly, the matter was deferred to 28.04.2023 so that the affidavit could be perused. The matter was, accordingly heard on 28.04.2023.

04. Shri KN Choudhury, learned Senior Counsel assisted by Shri H Buragohain, learned counsel appeared for the petitioner whereas Shri Anant Lal Gyani, the Director of Agriculture appeared in person along with the assistance of Shri I Choudhury, learned Senior Counsel. Shri B Choudhury, learned Standing Counsel, Agriculture Department and Shri UK Nair, learned Senior Counsel for the respondent no. 5 were also heard. Shri B Choudhury, learned Standing Counsel has also produced the records in original.

05. The writ petitions pertain to a Notice Inviting Tender (NIT) of the Agriculture Department pertaining to supply of seeds. The challenge in the initial WP(C)/760/2023 was with regard to a clause concerning average annual turnover of Rs. 3 crores for the last three financial years. This Court vide order dated 10.02.2023 while issuing notice had passed an interim order to the following effect:

"Considering the nature of the supply, this Court is not inclined to stay the proceedings. However, it is directed that without prejudice to the rights of either of the parties, the petitioner may be allowed to submit its bid which however would be subject to further orders that may be passed by this Court.

It is made clear that participation in the tender process shall not vest any right on the petitioner unless a case is able to be made out."

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06. On the strength of the said interim order, the petitioner had submitted his bid.

However, vide a decision taken in a meeting dated 21.03.2023, the bid of the petitioner was rejected on the same ground which was the subject matter of challenge in the first WP(C)/760/2023 in which, this Court, by balancing the equities had passed the aforesaid interim order on 10.02.2023. Accordingly, the petitioner had approached this Court by filing the second writ petition, being WP(C)/1732/2023.

07. This Court, after hearing the parties, including the learned Standing Counsel of the Department and after taking into consideration the facts and circumstances, had remarked that the impugned action was prima facie grossly illegal and was in the teeth of the earlier observation of this Court. Accordingly, order dated 24.03.2023 was passed in the aforesaid WP(C)/1732/2023 containing an interim restraint to the following effect:

"After hearing, it is made clear that no work order should be given in respect of the work in question and if in the meantime, such work order has been issued, no work should be allowed to be proceeded with the strength of such work order."

08. Though the matters were urgent in nature, as it related to supply of seeds, those were adjourned on 29.03.2023 and 04.04.2023 on the prayer of the Department for filing affidavit-in-opposition. On 10.04.2023, this Court was given an indication that certain activities were there which were in violation of the order of this Court. Accordingly, the records were called for.

09. When the matter was taken on 10.04.2023, the records were perused, including the note sheets from where it revealed that work orders were issued in spite of the Page No.# 8/17

stay order passed by this Court. The learned Standing Counsel had, however, submitted that the work orders were cancelled on the intervention of higher authorities. Be that as it may, since the action on the part of the Director was prima facie contemptuous, he was directed to appear in person and explain his conduct. The proceedings of 19.04.2023 and thereafter have already been mentioned above and are not repeated for the sake of brevity.

10. In the two affidavits filed by Shri Anant Lal Gyani dated 19.04.2023 and 26.04.2023, the incumbent has tendered his unconditional apology. Whether such apology is liable to be accepted or not would be discussed subsequently. However, what intrigues this Court is the nature of the explanation and justification which have been given by the incumbent in the affidavit dated 26.04.2023.

11. Shri Anant Lal Gyani, while appearing before this Court on 19.04.2023, had submitted that there was an e-mail from the World Bank dated 06.04.2023 pursuant to which, the work orders were issued to various parties for supply of the seeds. He had stated that such orders were issued on the next date i.e., 07.04.2023.

12. The aforesaid explanation is not all justified inasmuch as, a communication from the World Bank or for that matter any other authority cannot be used to violate a Court's order, more so when the records reveal that the Department was very much aware of the proceedings in the Court and the restraint order. In any case, since an explanation was put forward, this Court, by taking a broad view and not to cause any prejudice had also examined the said explanation by examining the materials in the original records placed before this Court by the learned Standing Counsel.

13. However, when the records were examined, it was found that the work orders to various parties were issued on 06.04.2023 itself. The Director then explained that it Page No.# 9/17

was done after receipt of the e-mail from an officer of the World Bank which was of the same date i.e., 06.04.2023. A perusal of the records reveals that no doubt there was an e-mail from an officer of the World Bank, the same was sent at 05.04 pm on 06.04.2023. Therefore, if at all the version given by Shri Gyani is to be accepted, such orders are to be presumed to have been issued after 05.04 pm on 06.04.2023. In other words, the work orders were issued after the Office hours.

14. The copies of the work orders dated 06.04.2023 have been perused from the records and the same reveals that all the beneficiaries had received their respective work orders on 06.04.2023 itself. The records contain about 17 such work orders of different quantities which, if the version of Shri Gyani is to be accepted, were prepared, approved, issued and received after 05.04 pm of 06.04.2023.

15. The records further reveal that the e-mail from an officer of the World Bank was issued to Shri Ashish Kumar Bhutani, the State Project Director, ARIAS and not to the incumbent, Shri Gyani. Shri Gyani has, however, submitted that he was telephonically instructed by one Shri Baljeet Singh, to whom a copy was also marked. It appears from the records that the said Shri Baljeet Singh is only a Market Analyst of ARIAS on whose instructions, the Director had purportedly acted.

16. It is, further, revealed from the record that it was only vide communication dated 10.04.2023 issued by the State Project Director that Shri Anant Lal Gyani, the Director was given approval to procure seeds directly through the ASCL under APART up-to USD 2.00 million. However, even before such approval, the work orders were already issued on 06.04.2023 which has been elaborately dealt with above.

17. It clearly appears that the justification sought to be made by taking the e-mail dated 06.04.2023 of an officer of the World Bank as a shield, is a complete eyewash Page No.# 10/17

to wriggle out from the situation which is absolutely unbecoming of an officer in the rank of the Director of Agriculture.

18. There is another important aspect of the matter which is required to be highlighted. As stated above, about 17 nos. of work orders were issued on 06.04.2023 to various beneficiaries. A bare look at any of the work orders would show that the order has been issued in reference to an e-mail by the respective parties dated 06.04.2023. No such copy/print of such e-mail is found with the records. More importantly, each of the supply orders refers the beneficiary as the L1 bidder against an office IFB under reference. There is no such IFB in the reference of the orders and number of such IFB in the body of the orders has been kept blank. The records do not indicate that there has been any such IFB.

19. It appears that the aforesaid recourse to mention a fictitious IFB in the work orders by the Director is only to give an impression as if there was a recognized procedure of Tender which was followed. The aforesaid observation of this Court is fortified by use of the expression 'L1' against all the beneficiaries to whom the work orders have been issued.

20. Even for the sake of argument that all benefit of doubt may be given to the Director of Agriculture regarding his explanation of the instructions from an officer of the World Bank, supply orders could not have been issued at the whims and caprice of the Director without following an established procedure of law. The said supply orders dated 06.04.2023 are ex facie illegal apart from being issued in violation of the direction of this Court.

21. There is a further allegation that on the crucial dates i.e., 06.04.2023 and 10.04.2023, Shri Anant Lal Gyani was on leave. The significance of 06.04.2023 has Page No.# 11/17

already been indicated above. The second date i.e., 10.04.2023 is also crucial, inasmuch as it is on that date when the cancellation order was issued by which all the work orders dated 06.04.2023 were cancelled.

22. Shri Anant Lal Gyani in his affidavit filed on 26.04.2023 though admitted that he had applied for casual leave on 06.04.2023, he had to report to the Office by cancelling the leave and he had gone to the extent of annexing a photograph of his in the corridor of a building which he claims to be the Office of the Directorate of Agriculture. Even though the said explanation may be a plausible one, the explanation given for 10.04.2023 is preposterous. The officer has stated that even though he was on leave, he had issued the work orders from his home.

23. This Court is constrained to come to a conclusion that a cock and bull story has been sought to be introduced by Shri Anant Lal Gyani to support his so-called explanation taking the shield of an e-mail dated 06.04.2023 by an officer of the World Bank.

24. Further, the language and expressions used in the affidavit dated 26.04.2023 by Shri Gyani, the Director is also not palatable. In paragraph 2 of the said affidavit while making an admission of the violation of Court's order, Shri Gyani had gone to the extent of stating as follows:

"The deponent with all humility admits that the said action of the deponent is opposed to the mandate of the Hon'ble High Court and thus, stood in violation of the Hon'ble High Court order dated 24.03.2023. The deponent earnestly accepts his transgression and his mistake, for which the deponent tenders his unconditional and unqualified apology. The deponent also undertakes never to commit such actions again in the Page No.# 12/17

future, that could invite the wrath of the Hon'ble Court."

25. There is no question of inviting the "wrath" of the Court. This Court is only exercising jurisdiction and powers as conferred by law and cannot act on any ipse dixit. This Court does not approve or endorse use of such expression which indicates a kind of a feudal system which is opposed to the constitutional mandate.

26. On the issue of the course of action and the directions to be passed by this Court, including the issue of acceptance of the apology, this Court may refer to the relevant provisions of the Contempt of Courts Act, 1971 (Act of 1971). For ready reference Section 2 (b) and Section 12 are extracted hereinbelow:

"2. Definitions - In this Act, unless the context otherwise requires -

(b) "Civil contempt" means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court;

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.

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(2) Notwithstanding anything contained in any 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 Page No.# 14/17

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."

27. The Hon'ble Supreme Court in the case of RL Kapur Vs. State of Madras, reported in (1972) 1 SCC 651 has laid down that the power regarding contempt is conferred upon this Court being a Court of records under Article 215 of the Constitution of India and the same is an inherent power.

28. In the explanation to Section 12 of the Act of 1971, the apology has been qualified to be a bona fide apology. There are a number of judicial pronouncements, including a Division Bench of the Hon'ble High Court of Andhra Pradesh in the case of K Mallaiah & Ors. Vs. Sandeep Kumar Sultania & Ors., reported in 2016 (3) Crimes 149 (AP) wherein, it has laid down that a paper apology is not acceptable. It has further been laid down that negligence and carelessness can also amount to disobedience.

29. The Hon'ble Supreme Court in the case of LD Jaikwal Vs. State of UP, reported in AIR 1984 SC 1374 and also the case of T. N. Godavarman Thirumulpad Vs. Ashok Khot & Anr., reported in AIR 2006 SC 2007 has laid down certain guidelines on the aspect of apology. It has been stated that the apology should be tempered with a sense of genuine remorse and repentance and not a calculated strategy to avoid punishment.

30. This Court is of the firm view that the very objective of the Contempt of Courts Act, 1971 read with Article 215 of the Constitution of India is to maintain the dignity and majesty of the institution which is the guardian and sentinel of the Rule of law. The apology cannot be used as a shield to purge the guilt.

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31. The facts and circumstances of the instant case would lead to an inevitable conclusion that the action of Shri Anant Lal Gyani was a willful and deliberate disobedience of the orders of this Court. The violation is not of one order but a series of orders and in fact, the said violation has been categorically admitted by the incumbent. In the oral explanation, the incumbent had stated that he did not understand the implication of the order and there was some miscommunication and misconstruction. Such explanation from the Director, who is an officer in the cadre of the Indian Administrative Service, is not at all acceptable. As has been held earlier, the so-called justification taking the shield of an e-mail by an officer of the World Bank is an absolute eyewash and is not acceptable.

32. Though, from the facts and circumstances of the case, Shri Anant Lal Gyani is prima facie guilty of Contempt of Court, this Court after much deliberations and keeping into account the age and career of the incumbent has decided that as an exceptional case, the apology tendered by Shri Anant Lal Gyani be accepted. This Court is also of the opinion that such powers to impose punishment which may also include civil imprisonment are to be sparingly exercised and reasonable restraint may be maintained.

33. Even though this Court has decided to accept the apology tendered by an affidavit by Shri Anant Lal Gyani, the seriousness of the matter cannot be overlooked. Accordingly, this Court directs the appropriate authority in the Department of Agriculture, namely, the Addl. Chief Secretary in-charge of the Agriculture Department, Government of Assam to look into the following aspects de hors the ground of the action being in violation of the Court's order:

i) How about 17 nos. of work orders were issued on 06.04.2023 which Page No.# 16/17

have been stated to be pursuant to an e-mail of an officer of the World Bank received at 05.04 pm on 06.04.2023?

ii) When the aforesaid e-mail dated 06.04.2023 was not addressed to the Shri Gyani, the Director regarding the supply, could supply orders be issued on the telephonic instructions of a Market Analyst of ARIAS, as stated by Shri Gyani?

iii) When the approval of the State Project Director, ARIAS was conveyed to the Director only on 10.04.2023, how could the work orders be issued on 06.04.2023?

iv) The work orders referred to an IFB and has termed each of the beneficiaries as L1. However, the records do not contain any materials of any such Tender process. This aspect requires to be enquired thoroughly.

v) How could an order be passed on 10.04.2023 by Shri Gyani cancelling the work orders when he was on leave on that date?

34. The aforesaid aspects are to be examined in a meticulous manner giving paramount importance to the seriousness of the matters, more particularly, the aforesaid point no. (iv) where apparently, fraud was resorted to circumvent and overreach the orders of this Court. To facilitate such an enquiry, the Department may explore the action of putting Shri Anant Lal Gyani, the Director of Agriculture under suspension or at least transfer him immediately so as to ensure that the enquiry can be done in a fair transparent and impartial manner without there being any attempt to tamper with the records.

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35. Let a compliance report be furnished to the Registry stating in details, the steps taken in terms of the present direction and the status by 2 months from today.

36. The aspect of the matter pertaining to the violation of the Court's order having been dealt with, both the writ petitions may be listed for admission after a week, as the subject matter would require an expeditious disposal.

37. The interim orders passed earlier stand extended till the next date of listing.

38. Records produced are returned back to Shri Choudhury, learned Standing Counsel, Agriculture Department.

JUDGE

Comparing Assistant