D.S. Poonia
Vs. Yumnam Dimbajit Singh & Anr [2003] Insc 115 (25 February 2003)
Doraiswamy
Raju & Shivaraj V. Patil Shivaraj V. Patil J.
These
two appeals are filed aggrieved by the common judgment and order dated
14.7.2000 passed by the Division Bench of the High Court in Criminal Contempt
Petition No. 1/2000. In this judgment, parties will be referred to as they are
arrayed in the contempt petition. In brief, the facts leading to the filing of
these appeals are that respondent no. 2 was an employee in Manipur Electronics
Development Corporation (MANITRON); pursuant to the instructions of the
Election Commission for computerization of electoral rolls, respondent no. 2
was appointed on deputation for a period of one year as Assistant Chief
Electoral Officer (ACEO) by an order dated 7.11.1997; since computerization
work could not be completed, his deputation was sought to be extended for one
more year with effect from 12.11.1998; the petitioner challenged this order of
extension in Writ Petition Civil Rule No. 1187/98 inter alia contending that
since respondent no. 2 was serving in a Corporation, an autonomous body it was
not permissible to take him on deputation; only a State services Officer could
be taken on deputation and not an officer belonging to the Corporation;
accepting this contention, the writ petition was allowed quashing the order of
extension given to respondent no. 2;
while
quashing the order, from the relevant file the High Court found that the
services of the second respondent as ACEO was no more required in the
Department of Election as computerization of electoral rolls had been
completed; the respondent no. 2 was only B-Tech (Electronics and Communication)
and not a computer engineer; despite the office objection raised, respondent
no. 1 extended the period of deputation of respondent no. 2 for one more year
by overruling the objections. Respondent no. 2 filed writ Appeal No. 108/99
against the order passed in the writ petition; the writ appeal was admitted on
24.6.1999 and an interim order was passed in the following terms: - "In
the meanwhile, the impugned judgment of the learned single judge in Civil Rule
No. 1187/98 is stayed. But we direct that the deputation of the appellant in
Writ Appeal No. 108/99, Sri W.Sudhirkumar Singh will not be extended beyond the
existing period of deputation expiring on 11.11.1999. We further direct that
the Draft Recruit Rules for recruitment to the post of Assistant Chief Election
Officer will be finalized by the end of September, 1999 and recruitment to the
post of Assistant Chief Election Officer will be completed by 11.11.1999."
In the aforementioned interim order, respondent no. 1 was restrained from
extending the period of deputation of the respondent no. 2 beyond 11.11.1999.
At the
same time, a direction also was given for framing the recruitment rules for
recruitment to the post of ACEO and to finalise the recruitment before
11.11.1999.
When
these directions given in the above extracted interim order passed by the
Division Bench were not followed, the petitioner filed a Civil Contempt
Petition No. 357/99. Responding to the direction issued in this contempt
petition, learned counsel for respondent no. 1 produced copy of the order dated
11.11.1999 passed by the respondent no. 1 purportedly in compliance with the
direction given in the said interim order. Looking to the said order, the court
on 15.12.1999 closed the Civil Contempt Petition No. 357/99 so far it related
to the respondent no. 1.
Despite
the order dated 11.11.1999 passed by the respondent no. 1, at the time of
hearing of the Civil Contempt Petition No. 357/99 and obtaining a favaourable
order in respect of the respondent no. 1, the respondent no. 2 was still
functioning as ACEO as appeared in the letter dated 30.11.1999. Further, the
respondent no. 2 had received goods supplied by MANITRON on 13.12.1999 as ACEO
which led to filing of the present contempt petition which was originally
registered as Contempt Case (C) No. 4/2000. On 3.2.2000 when the conduct of the
respondent no. 2 was brought to the notice of the court, learned counsel
appearing for the respondent no. 1 submitted that the respondent no. 2 had
acted on his own and the respondent no. 1 had not entrusted such work to him.
Although
Contempt Petition (C) No. 4/2000 was finally heard and reserved for judgment,
considering the gravity of the offence that the court's order dated 15.12.1999
had been obtained by the respondent no. 1 by practicing fraud, the High Court
was of the opinion that the conduct of the respondent no. 1 came within the
purview of the definition of criminal contempt under Section 2(c) of the
Contempt of Courts Act, 1971.
In
this view, the court allowed respondent nos.1 and 2 to file further affidavits,
if any. Thus, the Civil Contempt Petition No. 4/2000 came to be converted into
Criminal Contempt Petition No. 1/2000. The Division Bench of the High Court,
after elaborately considering the rival submissions made on either side, passed
the impugned order punishing the respondent no. 1 sentencing him to
incarceration for one month and to pay a fine of Rs. 2000/- and the respondent
no. 2 for incarceration for 15 days and to pay a fine of Rs.1000/-. Under these
circumstances, the respondent nos. 1 and 2 have filed these appeals.
Mr. Mukul
Rohtagi, the learned Additional Solicitor General, on behalf of respondent no.
1 (the appellant in Criminal Appeal No. 646/2000) urged that the services of
respondent No.2 (the appellant in Criminal Appeal No. 627/2000) were to be
availed on deputation from MANITRON for the purpose of computerization of the
electoral rolls; after the passing of the order by the court not to extend the
term of respondent no. 2 on deputation, his term on deputation was not
extended; however, having regard to the incompletion of the work and in the
interest of early completion of the work, his services were taken on contract
basis; other steps were taken pursuant to the direction of the High Court to
fill up the post of ACEO in accordance with rules; the respondent no. 2 was
repatriated even if it was found that although there was some delay in
repatriation which was not intentional. He drew our attention to the relevant
portions in the documents placed on record to show that there was neither
deliberate disobedience of the order passed by the High Court nor any fraud was
played on the court to say that the respondents committed criminal contempt. He
submitted that both the respondents tendered unconditional apology for the
faults said to have been committed by them which the High Court could have
graciously accepted. Similar submissions were made on behalf of the appellant
in Criminal Appeal No. 627/2000. On behalf of respondent no. 1, submissions
were made supporting the impugned order.
Having
perused the impugned order in which all the contentions are elaborately dealt
with, it is difficult for us to say that all was well with the appellants in
these appeals. As can be seen from the interim order passed on 24.6.1999, the
order of learned Single Judge made in writ petition was stayed; direction was
given not to extend the deputation of respondent no. 2 beyond 11.11.1999,
direction was given to finalise the draft recruitment rules for recruitment to
the post of ACEO and that the recruitment to the said post will be completed by
11.11.1999. The period of deputation of respondent no. 2 was not extended on
deputation beyond 11.11.1999 in terms of the aforementioned interim order.
However, in order to complete the remaining work, his services were availed on
contract basis; even that contract was cancelled later; this is to be
appreciated in the light of compliance of the other directions given in the
same interim order; draft recruitment rules were made and finalized but the
post could not be filled up as the petitioner obtained stay of the rules by
filing a writ petition; in the meanwhile, certain service benefits were given
to him; the appellants had tendered unconditional apology before the High
Court; the respondent no. 2 has been repatriated. However, from the events and
facts reflected in the impugned order, it appears to us, certain wrong
statements were made by respondent Nos. 1 and 2, may be with anxiety to defend
themselves. This Court in the case of Suresh Chandra Poddar vs. Dhani Ram &
Ors. [(2002) 1 SCCC 766] in paras 9 and 10 observed thus:- "9. Section 12
of the Contempt of Courts Act, 1971 has indicated a caution that while dealing
with the powers of contempt, the court should be generous in discharging the contemner
if he tenders an apology to the satisfaction of the court. In the present case
the apology tendered was found to be not genuine by the Tribunal. We are
dismayed, if not distressed, that despite delineating on all the steps adopted
by the appellant for challenging the order of the Tribunal before the High
Court and despite the fact that the appellant had implemented the order even
though there was no time schedule to do so, the Tribunal has chosen to depict
the apology tendered by the appellant as one without contrition.
10.
Section 13 of the Contempt of Courts Act says that notwithstanding anything
contained in any law for the time being in force, no court shall impose a
sentence "unless it is satisfied that the contempt is of such a nature
that it substantially interferes, or tends substantially to interfere with the
due course of justice"." In that case, the Central Administrative
Tribunal had given direction to publish a fresh seniority list but no time
limit was fixed. When the application for contempt was filed, in reply, it was
submitted that order had been complied with during pendency of the writ
petition challenging the order of the Tribunal.
However,
the Tribunal punished the contemnors in spite of the contemnors tendering an
apology. In the context of the facts of the said case, this Court observed that
in the absence of any time limit fixed for complying with the order, the
Tribunal should have directed first the contemnors to implement the direction
in the absence of any time limit fixed. Thereafter, action could have been
taken for non-implementation after the expiry of the time frame. This Court
went on to observe in para 12 thus:- "We have chosen to say so much in
this case to give a message to the Tribunal that contempt jurisdiction is not
to be exercised casually but only sparingly and in very deserving cases. It is
appropriate to bear in mind the adage "It is good to have the power of
giant, but not good to use it always" In our considered view, in the light
of what is stated above and having regard to the facts and circumstances of
this case, it would subserve the ends of justice if the impugned order is
modified by setting aside the sentence of incarceration passed against both the
appellants and a fine of Rs. 2,000/- is imposed on each of them. We accordingly
modify the impugned order. Appellant in Criminal Appeal No. 646/2000 shall pay
cost of Rs.5,000/- within six weeks which amount shall be paid to the Supreme
Court Legal Aid Committee.
The
appellant in Criminal Appeal No. 627/2000 shall pay Rs.5,000/- as cost to the
respondent no. 1 within six weeks.
The
appeals are disposed of accordingly in the above terms.
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