E. T.
Sunup Vs. C. A. N. S. S. Employees Assocn. & Anr [2004] Insc 638 (13 October
2004)
B.N. Agrawal & A.K. Mathur A.K. MATHUR, J.
This appeal is directed against the order passed by the Gauhati High Court
dated 26th May, 1998 whereby the Division Bench has convicted Shri E. T. Sunup,
Commissioner-cum-Secretary to Govt., Finance Department., Government of
Nagaland, and sentenced him to undergo simple imprisonment of one month and
also to pay a fine of Rs. 10,000/-, in default, further simple imprisonment of
one month.
However, Respondent No. 2, A.C.Saikia was impleaded as party in this
Contempt Petition but he was not party in Civil Rule No. 40(K)96 against which
this contempt arises, therefore, he was discharged. More so he stood retired on
reaching superannuation some time in the month of June/July 1997.
The brief facts which are necessary for the disposal of the appeal are as
follows. That by a W.T. Message dated 30th December, 1995 the State Government
in the Department of Finance had stopped all payments of the employees of the
State Government except salaries and pensions. The W.T. Message reads as under:
" NO. BUD/1-2/95-96 DTD 30.12.1995(.) STOP ALL STATES GOVT. PAYMENTS
RPT STOP ALL STATE GOVT. PAYMENTS WITH LIMMEDIATE EFFECT UNTIL
FURTHER ORDERS EXCEPT SALARIES AND PENSIONS FOR DECEMBER 1995 TO BE PAID FROM
5.1.96 RPT 5.1.96. ONWARDS (.) NO OTHER PAYMENT RPT NO OTHER PAYMENT SHALL BE
ALLOWED EVEN AGAINST DRAWAL AUTHORITIES ALREADY ISSUED.
UNTIL FURTHER ORDERS (.) PLEASE CONFIRM STRICT COMPLIANCE (.)" The
above message was amended on 30th January, 1996 and the ban imposed was relaxed
with regard to payment of salaries to regular staff, pension, including arrear
of pension, leave encashment and G.I.S. of the retired Government employees.
Earlier on 29th September, 1994 it was stated that no application for
special relaxation of G.P.F. will be entertained. The message reads as under:
" NO. FIN/GEN/39/93 : DT. KMA THE 29th sept '94 (.) NO APPLICATION FOR
SPECIAL RELAXATION OF G.P.F. WILL BE ENTERTAINED TILL FINANCIAL POSITION
IMPROVES (.) REQUEST NOT TO FORWARD ANY APPLN. DURING OCT' 94. "
Thereafter the above orders were challenged by the Confederation of All
Nagaland State Services Employees Association ( in short CANSSEA).
CANSSEA filed a Civil Rule 40(K)96 by its General Secretary. The grievance
of the petitioner association was banning of withdrawal of G.P.F. While issuing
a rule returnable within 6 weeks the Court on 17.5.96 after hearing both the
parties, passed an interim order which reads as under:
"In the facts and circumstances of this case and in the light of
submission made at the Bar I am of the view that an interim order has become
necessary. Accordingly, the impugned order dated 30.12.95 issued by the Finance
Department in so far as it concerns withdrawal of G.P.F. money shall remain
suspended until further orders." The interim order was not complied with
by the respondent.
Therefore, the CANSSA Association filed a contempt petition which came to be
registered as Civil Original (Contempt) Petition No. 17(k)96 in which the
present contemnor Shri E.T. Sunup, Finance Commissioner, Government of
Nagaland, Kohima was arrayed as respondent No. 1 and a notice was issued and he
filed a counter. Since the earlier Civil Rule was complete in all respect,
therefore, both the Civil Rule and Contempt Petition were heard together and
they were accordingly disposed of vide Court's Order dated 25.2.97 and the
following directions were given:
"14. Having said enough, this petition is disposed with the following
directions:- (a) Second respondent is directed to lift the ban with regard to
withdrawal/advance of G.P.F. within a week from the date of receipt of this
order.
(b) The G.P.F. withdrawal/advance shall be allowed only after Submission of
statements with regard to the availability of the amount in the credit of the
subscriber.
) Every Treasury Officer shall, before honouring of withdrawal/advance of
G.P.F. insist that latest statement showing the accounts in the credit of the
subscriber are made available before him.
(d) The Accountant General shall see that the latest statements are issued
correctly and on the basis of actual subscription subscribed by the subscriber.
(e) Every Head of the Department shall also see that before they forward the
application of G.P. Fund withdrawal/advance, the latest statement indicating
the availability of money in the credit of the subscriber is made
available." The Orders dated 30th September 1995, 30th January, 1996 and
29th September, 1994 were quashed, so far as the withdrawal and advance of GPF
was concerned. The contempt petition was also disposed of and it was observed
by the High Court under Para 4 of the aforesaid order that the contemnor has
made a misleading statement in paragraph 3 of the counter because it has been
categorically stated by the contemnor that impugned W.T. message dated 30.12.95
was effectively withdrawn However the order of withdrawal of Ban imposed on
30th December, 1995 was not produced by the contemnor. While disposing of the
contempt petition, the following observations were made by the Court.
" This Court has given seven days' time from the date of receipt of the
order to the contemnors to lift the ban imposed on withdrawal/advance of G.P.
Fund on 30.12.95. Contemnors also in paragraph 8 of its counter tender
unqualified apology if there is some omission of commission which might have
taken place in giving to the effective order of the Court.
Contemnors also categorically averred that he has the highest respect for
this Court and he has no intention of showing any disregard or disobedience to
any order or direction passed by this Court. Whenever the direction of this
Court is not carried out to its logical conclusion, it is the Rule of law that
suffers.
Carrying out the order of this Court is an enforecement of the Rule of Law.
We, therefore, insist that our order should be carried out to enforce the Rule
of Law. However, although the contempt has been made out, in view of the
averment made in paragraph 8 of the counter by contemnors tendering unqualified
apology, this Court with great hesitation accept the unqualified apology
tendered by the contemnor keeping in view that the Court has already directed
the contemnors to lift ban on withdrawal/advance of G.P. fund imposed on 30.12.95
and 29th September, 1994 passed in Civil Rule 40(K)96." Despite the
aforesaid order, it was not complied with and, therefore, a second contempt
petition was filed which is the subject matter of the present Appeal.
It was submitted before the Court that despite leniency shown by the Court
for withdrawing the order within one week, the respondent has deliberately and
wilfully not abided by the order and flouted the same thereby bringing the
administration of justice into disrespect. A reply was filed to this Contempt
Petition and it was submitted that the copy of the order was not received by
the respondent & therefore it could not be complied with & he denied
that he had violated the order of the Court. It was submitted that meanwhile an
appeal was filed and operation of order was stayed by the Division Bench.
Therefore, no contempt was committed, however, an apology was also tendered for
omission & commission if any.
An issue with regard to receipt of the Certified copy of order was dealt
with by the Court at length to show that certified copy was delivered in office
of Finance Commission but it is irrelevant now because impugned order was
stayed by the Division Bench of High Court on 28.5.1997. However, fact remains
that no application was moved for extension of time given by Court i.e. one
week.
Subsequently, the Writ Appeal was also disposed of by the Division Bench of
the Gauhati High Court vide its order dated 11th March, 2004 and it was
observed as under:
"In view of the discussion, we find no good reason to interfere with
the order passed by the learned Single Judge and dismiss the appeal with an
observation that whatever applications may be pending or moved for withdrawals
by the subscribers/employees, they shall be dealt with in accordance with Rule
applicable as contained in the General Provident Fund (Central Services) Rules,
1960. " A statement was made before the Division Bench by the Advocate-
General that he is authorized to make a statement that now no ban is there
against withdrawal of amount by the employees from their Provident Fund
accounts. However, the order of the Single Judge Bench was affirmed by Division
Bench. The learned counsel for the appellant submitted that there was no ban in
reality because provident fund amount was released from time to time, and in
support of it he drew our attention to Annexure- 'G' showing GPF Receipts and
Disbursements in the year 1996-97.
Accordingly, total receipt towards GPF was Rs. 67.36 crore and disbursement
was Rs. 25.29 crore. The amount of Rs. 25.29 crore was disbursed after the
order passed by the learned Single Judge. However, learned counsel for
appellant was unable to point out at the time of argument whether
administrative order passed by authorities was revoked or not. But subsequently
he filed an affidavit of Mr. E.T. Sunup, the then Finance Commissioner that
Govt. now on 23.9.2004 has withdrawn the Order. The order reads as under:-
"In compliance to the Honourable Gawahati High Court orders dated 2.5.2.97
in Civil Rule 40(k)/96 and dated 11.3.99 in writ appeal No. 262/97, the
following orders of the State Govt., given by the Finance Department, in so far
relating to advances and withdrawals of G.P.F. by the State government
employees, that were quashed by the Hon'ble Gawahati High Court, are hereby
being revoked with immediate effect:
(i) NO. FIN/GEN/39/93 OF 29.9.1994 (ii) NO. BUS/1-2/95-96 OF 30.12.1995 AND
(iii) W/T message of 30.1.1996 (H. KHULU) IAS Finance Commissioner" (But
this administrative order was issued after close of arguments.) He also
submitted that subsequently a similar ban was imposed and a contempt Petition
5/99 was filed in the Gauhati High Court and the Hon'ble Court on 14th March,
2000 set aside the impugned order & directed that whatever applications
were pending or moved for withdrawal by the subscribers/employees be dealt with
in accordance with Rules. The contempt petition was thereafter disposed of.
Learned Counsel submitted that on account of subsequent event now the ban
does not survive and GPF is being disbursed and order has been withdrawn,
appellant's apology be accepted and he be discharged. He submitted that
appellant has put in long 30 years of service and he has never shown any
disrespect to Court's order. Learned counsel for the respondent supported the order
of the High Court.
We have heard both the learned counsel at length. We are of the opinion that
the present order passed by the High Court in the facts and circumstances the
case is fully justified. Once a stand was taken by the Advocate General that
the ban does not survive and amount of GPF was disbursed during the period
1996-97, then there was no reason why the order banning of disbursement of GPF
was not revoked The stand taken by the State on one hand that amount of GPF was
disbursed still they were not prepared to revoke the order, we fail to
understand this inconsistant stand. Once the administrative order is issued
then it cannot be revoked by oral submission before Court. It has to be revoked
by another administrative order (which they have now passed). If the Adv.
General had made a statement before the Court then it should have been followed
with the administrative order revoking the ban. Till the date of argument
learned counsel for the appellant could not produce before us the order revoking
the ban, on the contrary the ban was kept in force and the second contempt
petition was filed before the Court and the Advocate General again made a
statement that GPF applications will be processed that makes the matter worse
for the petitioner and it does not mitigate the situation. It is different that
now a realization has dawn upon the authorities as they find no escape route
for them, therefore, they have now revoked the order dated 25.2.1997 by the
Order dated 23.9.2004 after close of arguments.
It has become a tendency with the Government Officer to somehow or the other
circumvent the orders of Court and try to take recourse to one justification or
other. This shows complete lack of grace in accepting the orders of the Court.
This tendency of undermining the court's order cannot be countenanced. This
Court time and again has emphasized that in democracy the role of the Court
cannot be subservient to the administrative fait. The executive &
legislature has to work within Constitutional frame work. and the judiciary has
been given a role of watch dog to keep the legislature & executive within
check. In the present case, we fail to understand the counter filed by the
appellant before the Court. On one hand they say that all the cases of GPF have
been processed and on the other hand they are not prepared to revoke the
administrative order. This only shows a deliberate attempt on the part of the
bureaucracy to circumvent the order of the Court and stick to their stand. This
is clear violation of Court's Order and appellant is guilty of flouting the
Courts Order.
In the facts and circumstances of the case, the view taken by the High Court
does not call for interference..
While coming to the question of sentence, learned counsel for the appellant
submitted that the incumbent is on the verge of retirement and he has suffered
a lot and he has an unblemished career of 30 years of service. More so now
Order dated 25.2.1997 has been revoked though belated therefore a mercy be
shown to him and his apology may be accepted. But if the Court's orders are
flouted like this, then people will loose faith in the Courts. Therefore, it is
necessary to deal with such type of violation of Court's Order with strong
hands and to convey to the authorities that the Courts are not going to take
things lightly. However, looking to the long career of this Officer and now
order has been revoked, we do not propose to punish him with imprisonment but
we propose to impose a fine of Rs. 5,000/- (Rupees five thousand ) only and in
default of payment of fine, to undergo a simple imprisonment for one month. The
incumbent shall deposit the amount in the State Treasury within one month from
today.
Hence, as a result we affirm the order of the High Court and punish the
respondent No. 1 for committing contempt of Courts Order and impose a fine of
Rs. 5,000/- (Rupees five thousand) only, in default of payment of fine,
sentence him simple imprisonment for one month. The impugned order is modified
to this extant. The Civil Appeal is disposed of accordingly.
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