Rashmi V. Rao vs Eclerx Services Limited
2022 Latest Caselaw 11705 Kant

             IN THE HIGH COURT OF KARNATAKA,
                      DHARWAD BENCH

         DATED THIS THE 9TH DAY OF SEPTEMBER, 2022

                            PRESENT

           THE HON'BLE MR. JUSTICE S.G. PANDIT
                               AND

      THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

                      CCC NO. 100139/2021
BETWEEN

RASHMI V. RAO
(MAIDEN NAME: RASHMI V. KALLAPUR),
AGE:44 YEARS, OCC.: NIL, PRESENTLY
RESIDING AT # 46, ARJUN VIHAR,
GOKUL ROAD, HUBLI-580 030.
                                              -       COMPLAINANT
(PARTY-IN-PERSON)

AND

ECLERX SERVICES LIMITED,
AMIR BHARWANI, DESIGNATED
AS PRINCIPAL HR, BUILDING # 11,
4TH, 5TH & 6TH FLOOR,
K. RAHEJA MINDSPACE, # 3, TTC,
INDUSTRIAL AREA, THANE BELAPUR ROAD,
AIROLI, NEW MUMBAI-400 708,
MAHARASHTRA.
                                                  -      ACCUSED
(BY SRI GIRISH A. YADWADA, ADVOCATE)

       THIS CCC IS FILED U/S. 11 AND 12 OF THE CONTEMPT OF COURTS
ACT, 1971 R/W ARTICLE 215 OF CONSTITUTION OF INDIA PRAYING TO
INITIATE CONTEMPT PROCEEDINGS AGAINST THE ACCUSED FOR WILFULLY
DISOBEYING THE ORDER AT ANNEXURE-A DATED 23.12.2017 PASSED IN
CRL.A. NO. 74/2017 BY THE LEARNED V ADDL. DISTRICT AND SESSIONS
JUDGE DHARWAD SITTING AT HUBBALLI & ETC.
                                  2



     THIS  CCC  HAVING   BEEN   HEARD     AND   RESERVED   FOR
"PRONOUNCEMENT OF ORDER" ON 06.09.2022, THIS DAY COMING ON FOR
"PRONOUNCEMENT OF ORDER" S.G.PANDIT, J PASSED THE FOLLOWING:

                            ORDER

This civil contempt petition is filed under Section 10

and 12 of the Contempt of Courts Act, 1971 r/w Article 215 of

the Constitution of India alleging disobedience and non

compliance of the order dated 23.12.2017 passed in Criminal

Appeal No. 74/2017 passed by the learned V Addl. Dist. &

Sessions Judge, Dharwad sitting at Hubballi.

2. The complainant in the contempt petition is the

appellant in Criminal Appeal No. 74/2017. The said appeal

has arisen out of the proceeding in Crl. Misc. No. 17/2016 on

the file of the learned J.M.F.C. I Court, Hubballi. The

respondents in the said appeal are father-in-law and mother-

in-law of the present complainant. Operative portion of the

order in Criminal Appeal No. 74/2017 reads as under:

"Appeal is allowed.

The order passed by the J.M.F.C. I Court, Hubballi in Crl. Misc. No. 17/2016 dated 17.07.2017 is hereby set aside.

Issue attachment warrant for the properties and service benefits of Respondent No.1 for realizing the amount of interim maintenance along with cost awarded in this petition."

3. Sri Amir Bharwani, designated Principal HR of eClerx

Services Limited is arrayed as accused. It is apparent that

eClerx Services Limited, a Company registered under the

Companies Act, is not a party to the proceeding before the

learned V Addl. Dist. & Sessions Judge, Dharwad sitting at

Hubballi in Criminal Appeal No. 74/2017 or in Crl. Misc. No.

17/2016 on the file of the learned J.M.F.C. I Court, Hubballi.

4. We have heard the complainant/ party-in-person and

the learned counsel appearing for the accused.

5. The complainant/ party-in-person inviting attention of

the Court to Annexure-B, memorandum of appeal filed under

Section 29 of the Protection of Women from Domestic

Violence Act, 2005, would contend that it is prayed by the

complainant who is the appellant in the said appeal that the

order dated 14.07.2017 passed in Crl. Misc. No. 17/2016 by

the learned JMFC I Court, Hubballi, is to be set aside and it is

to be declared that the complainant/ appellant is legally

entitled for movable and immovable property of deceased

respondent no.1, her husband and she has also prayed for

release of service benefits of her husband and sought a

direction against the employer of deceased husband. The

other prayers in the said appeal is not relevant for

consideration of the present contempt petition.

6. The complainant would also invite attention of this

Court to paragraph no. 18 of the order dated 23.12.2017 in

Criminal Appeal No. 74/2017 referred above, which reads as

under:

"18. Further, remaining amount shall be accounted and shall be retained even if with the employer in fixed deposit, so that the interest accrued at regular intervals shall be made available to the need of the dependents of respondent No.1."

By referring to the prayer in the appeal memo and operative

portion of the order dated 23.12.2017 and also paragraph no.

18 of the said order, it is urged by the complainant that the

criminal appeal is allowed in toto and not in part, as such, it

is to be treated as that all the prayers made in the appeal

memo in the said criminal appeal are granted by the learned

Sessions Judge and by referring paragraph no. 18 it is

submitted that employer of the deceased husband is not

entitled to retain service benefits payable to the dependents.

7. It is urged by the complainant that the employer has

not complied with the direction and accordingly has filed

contempt petition for taking appropriate action against the

employer.

8. The respondent has filed statement of objections to the

petition filed by the complainant. The complainant has filed

rejoinder statement to the statement of objections filed by the

respondent-accused.

9. It is the stand of the respondent-accused that in

Criminal Appeal No. 74/2017 the present respondent or the

eClerx Services Limited, is not a party and there is no

direction in the order to release amount in favour of the

complainant as alleged by the complainant. It is also the case

of the respondent that there was a direction issued by the

learned Sessions Judge to attach the properties of the

deceased husband of the complainant to recover arrears of

interim maintenance along with costs awarded in the petition.

Referring to the documents produced along with the

statement of objections, particularly, Annexure-R9, it is

submitted that the employer of the deceased husband of the

complainant has credited Rs.5,18,000/- to the complainant

by issuing account payee cheque drawn on Kotak Mahindra

Bank dated 18.05.2018. It is also submitted that one more

cheque dated 26.08.2018 for Rs.75,000/- drawn on Kotak

Mahindra Bank is issued to the complainant and to

substantiate their contention relating to payment, statement

of account of Kotak Mahindra Bank is also annexued as

Annexure-R9.

10. In the counter affidavit filed by the complainant there is

no denial relating to issuance of aforementioned two cheques

in favour of the complainant. It is also contended by the

learned counsel for the respondent that the wife is not

nominated in the service records of the deceased husband or

any other person. Moreover, there is a dispute pending before

the High Court of Bombay between the present complainant

and her mother-in-law relating to the assets of deceased

husband of present complainant. Despite this, the order

dated 23.12.2017 in Criminal Appeal No. 74/2017 is

complied in its letter and spirit.

11. No doubt, it is the duty of the Court to uphold and

maintain dignity of Courts and majesty of law. Sec. 2(a) and

(b) of the Contempt of Courts Act, 1971 (for short 'the Act')

defines contempt of Court and civil contempt. The Hon'ble

Supreme Court in a case reported in (2008) 14 SCC 561

(Patel Rajnikant Dhulabhai and another Vs. Patel

Chandrakant Dhulabhai and others) has explained

definition of civil contempt as defined under Section 2(b) of

the Act. The relevant paragraph no. 58 reads as follows:

"58. The provisions of the Contempt of Courts Act, 1971 have also been invoked. Section 2 of the Act is a definition clause. Clause (a) enacts that contempt of court means "civil contempt or criminal contempt". Clause (b) efines "civil contempt" thus:

"2. (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."

Reading of the above clause makes it clear that the following conditions must be satisfied before a person can be held to have committed a civil contempt:

(i) there must be a judgment, decree, direction, order, writ or other process of a court (or an undertaking given to a court);

(ii) there must be disobedience to such judgment, decree, direction, order, writ or other process of a court (or breach of undertaking given to a court); and

(iii) such disobedience of judgment, decree, direction, order, writ or other process of a court (or breach of undertaking) must be willful."

The above are the ingredients of a civil contempt and civil

contempt means willful disobedience of any judgment, decree,

direction, order, writ or other process of a Court or willful

breach of undertaking given to a Court. Unless the above

conditions or criteria are satisfied, no Court would proceed

with contempt proceedings for mere asking of a party. The

Court shall be satisfied that there is disobedience of a

judgment, decree, direction, order or writ and it must be

willful. The Court shall also keep in mind while ordering

notice of contempt that notice of contempt and power of

contempt are of far reaching consequences and they should

be resorted to only where a clear case of willful disobedience

has been made out.

12. As far as the contention of the complainant that the

prayer made in the appeal memo is granted in its entirety and

the words "appeal is allowed" found in the operative portion of

the order dated 23.12.2017 would substantiate the

contention of the complainant relating to granting of entire

prayer is concerned, this Court is not convinced to accept the

said contention. The operative portion of the order has to be

read in its entirety. One sentence "appeal is allowed" cannot

be construed for having granted all the prayers made in the

appeal memorandum. The prayer granted in the order dated

23.12.2017 is forthcoming in the remaining portion of the

operative portion of the order. If a party makes several

prayers in the petition or appeal memorandum and some of

the prayers are without reference to the other prayers it is to

be construed and treated that the prayers not specifically

granted are deemed to have been rejected. Under the

circumstances, this Court is of the view that the contention of

the complainant that all the prayers made in the appeal

memo are granted in favour of the complainant, cannot be

accepted.

13. As far as the interpretation of paragraph no. 18 as

urged by the complainant is concerned, a bare reading of

paragraph no. 18 would reveal that only observation is made

therein as to if there is any amount belonging to the deceased

husband of the complainant is with the employer, then the

employer has to keep it in fixed deposit and if there is an

application made by the dependents of the deceased husband

of the complainant, the interest accrued on the said deposit

has to be released. The complainant is not in a position to

establish that she has made an application before the

employer seeking release of interest accrued on the deposit.

14. Admittedly, there is a dispute between the complainant

and her mother-in-law, i.e., the mother of the deceased,

pending before the High Court of Bombay in Testamentary

Suit No. 175/2017 in Testamentary Petition No. 1299/2017.

There is no declaration by the competent Court as to who is

entitled to succeed to the assets of the deceased husband of

the complainant. Under these circumstances, this Court is of

the view that the complainant cannot raise a grievance

against the employer of her deceased husband in a contempt

petition alleging non compliance of the order passed on

23.12.2017.

15. It is borne out from the records that in Criminal Appeal

no. 74/2017, the employer of the deceased husband of the

complainant is not a party. Strictly speaking, the contempt

petition would not lie against the employer.

16. In this case the complainant is not in a position to

establish any disobedience much less willful disobedience on

the part of the employer of the complainant. Under these

circumstances, this Court is of the view that nothing further

survives for consideration in the present contempt petition.

Accordingly, further proceedings in the contempt petition are

dropped.

SD JUDGE

SD JUDGE bvv