Anand Kumar Pandey vs Vinod Kumar Srivastava, Executive Officer (Adhishashi Adhikari), Nagar Panchayat and Another

B.S. Chauhan, J.—The Petitioner-applicant, Sri Anand Kumar Pandey, was appointed as a Clerk/Tax Collector In the Town Area, Oran, District Banda, on 24.1.1987 on dally wages. The vacancy for the said post was notified on 22.2.1987 and after completing the formalities of selection, the Petitioner was duly appointed on the said post vide order dated 12.6.1987 and subsequently confirmed on 28.11.1988. Petitioner was suspended vide order dated 1.1.1990 on some charges. Being aggrieved, Petitioner filed Writ Petition No. 2271 of 1990 and this Court, vide its order dated 5.3.1990, stayed the operation of the suspension order dated 1.1.1990. In pursuance of the order passed by this Court on 5.3.1990, the opposite parties allowed the Petitioner to work. Petitioner''s salary was not paid for the months of January and February, 1994. Petitioner felt suffocation and found the surrounding atmosphere totally hostile and Petitioner submitted his resignation on 6.4.1994. But subsequently, Petitioner made an application on 13.4.1994 to withdraw his resignation. Opposite parties accepted the said resignation vide order dated 23.11.1994. Being aggrieved, Petitioner preferred writ petition No. 38735 of 1994 before this Court challenging the order dated 23.11.1994 on the ground that as the Petitioner had already filed an application to withdraw his resignation, the order dated 23.11.1994 was Illegal and prayed for quashing the same. This Court, vide its order dated 2.12.1994, stayed the operation of the order dated 23.11.1994. The Interim order runs as under:

Until further orders, the operation of the impugned order dated 23.11.1994 (Annexure-1 to the writ petition) will remain stayed.

The said order was served upon the opposite parties by the applicant on 8.12.1994. The order passed by this Court on 2.12.1994 was not complied with by the opposite parties. The Petitioner was neither assigned any work nor was he paid any salary. The applicant was forced to approach this Court by filing the instant contempt petition and this Court, vide Its order dated 24.3.1995, Issued notices to the opposite parties calling upon them to explain their conduct as under what circumstances the opposite parties have willfully defied the order passed by this Court on 2.12.1994. The opposite parties filed the counter-affidavit in the main writ petition on 9.8.1995 and they had chosen not to comply with this Court''s order dated 2.12.1994. The opposite party No. 2 in his counter-affidavit has shifted the entire liability on opposite party No. 1 stating that he had no concern with regard to the case and also made reference to some Government Notification dated 24.5.1994 which came into operation with effect from 30th May, 1994 by which Section 75 of the U.P. Nagar Palika Act was enforced and the power to appoint or dismiss the Tax Collector vested with the Executive Officer, Le., opposite party No. 1.

In paragraph No. 12 of this counter-affidavit, opposite party No. 2 has stated that "as soon as the order dated 2.12.1994 was received by the deponent, it was immediately, the same day, forwarded to the Executive Officer, vide Challan No. 4309 dated 10.1.1995 for compliance of the order as he was the competent authority to appoint the Petitioner...... The responsibility to comply with the orders of the Hon''ble court rests with the Executive Officer.

Again In paragraph No. 15 of the counter-affidavit, the opposite party No. 2 stated that after receiving the reminder of the applicant, the opposite party No. 2 forwarded it to the opposite party No. 1, vide letter No. 14494/Aashu dated 13.1.1995 to comply with the order passed by this Court. Moreover, in paragraph No. 16 of the counter-affidavit, the opposite party No. 2 has tendered unconditional apology before this Court.

Sri R.S. Maurya, learned Counsel appearing for the applicant has fairly conceded that the proceedings may be dropped against the opposite party No. 2 and thus, the same is being considered only against opposite party No. 1, the Executive Officer.

Opposite party No. 1 In his counter-affidavit has not expressed ajvy contriteness for this contumacious act what to talk of unconditional apology. The most vociferous averment/submission of opposite party No. 1 In paragraph No. 10 of the counter-affidavit reads as under:

...when his resignation letter is already accepted and another employee is employed who is working now, the Petitioner is not entitled for any salary. He cannot press this contempt petition on the basis .of in fructuous stay order for which the deponent had applied in the writ petition for recalling the same.

The opposite party No. 1, as stated above, has filed the counter- affidavit in the main writ petition on 9.8.1995 along with the application to recall the order passed by this Court on 2.12.1994 and has further taken no steps to get the said order modified.

In the case of State of Jammu & Kashmir Vs. Mohd. Yaqoob Khan and Others, , the Supreme Court has held that before contempt petition is filed, the other side must be given a chance to approach the court for modification/variation or vacation of the interim order passed ex prate. In the instant case, the counter-affidavit has been filed in the main matter after the lapse of a long period and that is too after receiving the notice In the contempt petition. The opposite party No. 1 has definitely not prosecuted the case with due diligence. The opposite party No. 1 ought to have got the order modified or vacated or at least shown his bona fides in perusing the case. I am of the view that the contents of paragraph No. 10 of the counter-affidavit filed by the opposite party No. 1 in the instant petition itself amounts to contempt as the opposite party No. 1 has taken the task to himself to decide the sanctity of the order passed by this Court and declaring the same as in fructuous. It is by no means permissible and the attitude adopted by the opposite party No. 1 itself is derogatory and deplorable. The opposite party No. 1, if felt aggrieved at all, ought to have taken appropriate steps with due diligence to get the said order modified/vacated or ought to have approached the appellate forum against the said order. In case of Mohd. Iqbal Khanday Vs. Abdul Majid Rather, , the Supreme Court observed as under:

...conduct of the Appellant is not in keeping with the responsibility of the office he holds. Greater respect should have been shown to court and if he was aggrieved by the order, he should have taken prompt steps to invoke the appellate procedures. The Appellant could not ignore the order and plead the difficulties of implementation at the time contempt proceedings are initiated."

Conduct of the opposite party No. 1 has throughout remained contemptuous, and I have no hesitation in holding that the Respondent No. 1 lacks the candor and his conduct has been unbecoming of responsible officer. Instead of showing repentance, on the part of opposite party No. 1 learned Counsel appearing on his behalf forcibly articulated that the view taken by the opposite party No. 1 in paragraph No. 10 of the counter-affidavit was fully justified. Though no material information has ever been furnished as on what date the other person was appointed, what were the terms/conditions of his employment nor there has been any disclosure of the identity of the person so employed. A bald statement that due to employment of some other person, the order passed by this Court on 2.12.1994 has become in fructuous, can by no means be a Justification of noncompliance of the order of this Court. No doubt, in law, it is permissible for the alleged contemnor to justify the disobedience of the order on certain compelling circumstances. Niaz Mohammad and others, etc. etc. Vs. State of Haryana and others, ; Capt. Dushyant Somal Vs. Smt. Sushma Somal and Another, ; K.J. Pathare v. S.J. Pathare, (1971-73) Bom LR 616 ; Mohd. Iqbal Khanday Vs. Abdul Majid Rather, and Mohd. Ikram Hussain Vs. State of U.P. and Others,

However, the statement of opposite party No. 1 in paragraph No. 10 of has counter-affidavit is nothing but an employ to subterfuge the instant contempt proceedings and to defeat the order dated 2.12.94 passed by this Court. It also smells the personal male fides of the opposite party No. 1 against the applicant. Respondent No. 1 has taken a defiant attitude and did not even consider It appropriate to tender apology. Taking a pragmatic view of the matter, I am of the view that it is a gross case of contempt. In the case of Dr. Roshan Sam I Joyce v. S. R. Cotton Mills Ltd. and Ors. AIR 1990 SC 1880, the Supreme Court has observed as under:

We feel that our hands are not so tight, and where there is patent dishonesty on the part of the Respondent..... writ large on the face of the record, law does not require that we should sit back with folded hands and fail to take any action in the matter.

Similarly in the case of Balram Singh Vs. Bhikam Chand Jain and Others, , it was held as under:

It would be a travesty of justice if the court were to allow such gross contempt of court to go unpunished, without an adequate sentence and we find no mitigating circumstances whatever not to pass sentence of Imprisonment.

In the case of Jennison v. Baker (1972) 1 AER 997, it was held as under:

The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope.

The aforesaid judgment was approved by the Supreme Court in the case of Advocate-general, State of Bihar Vs. Madhya Pradesh Khair Industries and Another, .

In the totality of the circumstances, I am of the considered opinion that it is proved beyond reasonable doubt that the opposite party No. 1 has willfully defied the order passed by this Court on 2.12.1994 and committed the contempt of court. There is no mitigating circumstance which may warrant the imposition of fine as mere imposition of fine would not meet the ends of justice and it is a case where the opposite party No. 1 should be awarded sentence of imprisonment. Though I am fully alive to the law laid down by the Supreme Court in the case of Smt. Pushpaben and Another Vs. Narandas V. Badiani and Another, , that sentence of imprisonment is an exception while sentence of fine is the rule. In the instant petition, the opposite party No. 1 has not only willfully defied the order passed by this Court but also sat in appeal over it and declared the said order dated 2.12.1994 as In fructuous. The attitude of the opposite party No. 1 is not simply defiant but has shown the typical executive arrogance, which is quiet easily illustrated from his conduct right from the date on which the order dated 2.12.94 was served upon him and in spite of the specific directions issued by opposite party No. 2, the opposite party No. 1 did not pay any heed to the said order. The reminders were sent and received by opposite parly No. 1 but in vain. The opposite party No. 1 not only deliberately sat over the order dated 2.12.1994 but he made purposive attempt to Justify his conduct In continuously flouting the said order. The order dated 2.12.94 was served upon the opposite party No. 1 on 8.12.94. This Court issued notice in the contempt proceedings on 24.3.95 and the opposite party No. 1 filed the counter-affidavit In the writ petition in August, 1995, i.e., after 9 months from the date of initial order passed in the writ petition and after about 5 months from the date of issuing notice in the contempt proceedings. This itself reflects the zealousness of the opposite party No. 1 in perpetuating the misconduct on his part as he made no attempt to get the order dated 2.12.94 annulled/modified. The opposite party No. 1, Sri Vinod Kumar Srivastava, Executive Officer (Adhishashi Adhikari), Nagar Panchayat, Oran, Banda, is punished with simple imprisonment for a period of three months.

The registry is directed to send a copy of this order to the Chief. Judicial Magistrate, Banda, within a week to execute this order immediately after the expiry of 30 days from today. However, if the opposite party No. 1 has been transferred from Oran, Banda, the Chief Judicial Magistrate is directed to execute the same wherever the opposite party No. 1 has been transferred.