Avinash Kumar vs R.K. Mathur

Tarlok Singh Chauhan, J.—The petitioner has invoked the jurisdiction of this Court under Sections 11 and 12 of the Contempt of Courts Act for initiating contempt proceedings against the respondents for willful violation of the order dated 10.4.2014 passed in CWP No. 2382 of 2014 titled Avinash Kumar vs. Union of India and others.

The petitioner in the writ petition has sought the following reliefs:

"(i). Certiorari seeking quashment of the show cause notice bearing No. 80015/CBI/ICC/07/E8 dated 28.12.2013 issued by the respondent No. 4.

(ii) Prohibition restraining the respondents from withholding or keeping in abeyance the tenders in which the petitioner has emerged as lowest tenderer.

(iii) Mandamus commanding upon the respondents to process the allotment of works in those tenders in which the petitioner has emerged as lowest tenderer notwithstanding the lodging of the FIR bearing Nos. RC09626013A0003 dt. 31.10.2013 and FIR No. RC09626013A0005 dt. 31.10.2013 u/s 120B IPC read with Section 13(2) read with 13(i) and (d) of Prevention of Corruption Act, 1988 came to be registered by Sr. Superintendent of Police, CBI, Shimla.

(iv) Prohibition restraining the respondents from cancelling the CA No. CE(P) DPK-19 of 2009-10 on the ground of lodging of the FIR bearing No. RC09626013A0003 dt. 31.10.2013."

Alongwith the writ petition, an application for interim relief being CMP No. 4774/2014 was preferred and came up for consideration before this Court on 10.4.2014 and the following order came to be passed:

"CMP No. 4774/2014:

Notice in the above terms. Objections be filed within four weeks. In the meantime, the respondents are directed to consider the case of the petitioner for allotment of the works, subject matter of the writ petition, being a lowest tender, while keeping in view paras (ii), (iv) and (vi) contained in Annexure-J, within four weeks."

Insofar as Annexure-J is concerned, the respondents therein had admitted the right of the petitioner to be considered for allotment of the works being L-1 tenderer, notwithstanding the registration of FIR by the CBI. At this stage, it may be useful to refer the paras (ii) (iv) and (vi) contained in Annexure-J, which read thus:

"(ii) Due to high altitude of area and difficult climatic conditions under CE(P) Deepak only a few contractors are willing and available to work under CE(P) Deepak as these firms are established contracting agencies in these areas as they have installed crusher and other requisite T & P hence they are able to quote for the work and are able to execute the works entrusted to them.

(iv) There is no valid legal ground for taking actions against these firms. In case department against these firms takes any action, they may go to the Court. This may affect the entire work adversely in Project Deepak.

(vi) A list of tenders in which firms are lowest is attached as Annexure "A". It has been categorically mentioned in this Dte letter that FIR is not a legal ground to with hold acceptance of these tenders which have been received under e-tendering process. Board of Officers have evaluated the criteria and qualified these firms for participation."

This order was passed in presence of Senior Panel Counsel for the respondents and therefore, undisputably the respondents were in the knowledge of the interim order on the same day. The petitioner has alleged that he was the lowest tenderer (L-1) in the following three contracts:

"(a) Providing, Laying and Compaction of 150 MM Thick NFSSB IN Two Layers, 75MM Thick Crushed Stone Base, 75 MM Thick Dense Bituminous Macadum and 40 MM Thick Asphat Concrete as per mosrt&h specification between KM 61.00 AND KM 72.00 on manali-sarchu road under project deepak in Himachal Pradesh",

(b) Second for CE (P) DPK 12 of 2013-2014 for "providing, laying and compaction of 75 MM thick, dense bituminous macadum and 40 MM thick asphalt concrete as per mosrt&h specification between KM 207.00 AND KM 222.390 on manali-sarchu road under 70 RCC/38 BRTF sector under project deepak in Himachal Pradesh.

(c) Third tender bearing No. 24893/DGBR/MSP-03/04/E8 for construction of 135 MTR long avalanche control structure (MSP-03) AT KM 1.35 on approach road to south portal in Himachal Pradesh."

The petitioner further claimed that even the financial concurrence in respect of one of the works of laying and compaction of 75 MM thick, dense, Bituminous Macadum and 40 MM Thick Asphalt Concrete, had been granted by the competent authority vide order dated 3.12.2013.

Now, the grievance of the petitioner is that despite the orders passed by this Court on 10.4.2014, the respondents have failed to comply with the same within the stipulated period and instead of obeying the orders and with a view to circumvent the direction passed by this Court and contrary to the letter dated 4.2.2014 (Annexure-J) had passed the order dated 27.5.2014 thereby suspending the petitioner''s registration and had further directed to suspend the petitioner from participation in future tendering process of all offices under Border Roads Organization (BRO). It is claimed that since the petitioner had also tendered for work in the State of Jammu and Kashmir and in view of the order dated 27.5.2014, the petitioner had been deprived of the right of consideration for the works, he was constrained to challenge the aforesaid order in the High Court of Jammu and Kashmir by way of writ petition bearing OWP No. 828/2014 titled Avinash Kumar vs. Union of India and others. The High Court of Jammu and Kashmir vide its order dated 11.6.2014 passed an interim order in favour of the petitioner whereby the operation of the order dated 27.5.2014 was stayed and the respondents were also directed to consider the case of the petitioner for processing the opening of the price bid of the petitioner for the works namely "Design and Construction of 1000M. Long Multi Span PMT PSC Box Girder Bridge including SSI over UJH Nallah at Kilometer 4.170 on road Parole-Koreponnu under Project Sampark in J & K State". In this background, it is claimed that the respondents-contemnors have not only failed to consider and allotted the works in question to the petitioner being lowest bidder in terms of the directions passed by this Court on 10.4.2014 but calculatedly in order to circumvent the implementation of this order, have suspended the firm from its enlistment vide order dated 27.5.2014 and, therefore, are guilty of gross contempt of Court on account of deliberate defiance and non-compliance of the order dated 10.4.2014.

Notice of the petition was issued to the respondents on 24.6.2014, pursuant to which, the respondents filed reply on the affidavit of Jitendra Narayan Prasad, working as Surveyor of Works at HQ Chief Engineer Project Deepak, wherein the respondents submitted that necessary consideration has been accorded to the case of the petitioner as directed by this Court as under:

"(i). There are four FIRs registered by CBI namely RC0962014A0001 dt. 22 Jan, 2014, RC09626013A0003 dt. 31 Oct. 2013, RC0962013A0005 dt. 31 Oct. 2013 and RC01232013A0001 dt. 13 Mar 2013 against the petitioner after conducting preliminary enquiry. The offences mentioned by the CBI in the FIR are criminal conspiracy, cheating, forgery, criminal misconduct and obtaining contracts on exorbitant rates thereby causing a huge pecuniary loss to the government exchequer and corresponding wrongful gain to the petitioner.

(ii) An FIR stands registered by the CBI against the firm for cheating, forgery in another contract works of Boarder Roads Organisation at Leh (J & K) vide RC 01232013A0001 dt. 13 Mar 2013 and serious investigation is being conducted.

(iii) If any contracts are awarded to the petitioner and at later stage competent court of law holds the petitioner guilty for the commission of aforesaid offences, this will lead to cancellation of all contracts awarded to the petitioner and repercussions of this happenings may be very serious in terms of wastage of public money and Arbitration/Court cases, besides delays in completion of strategically important road construction works having bearing on National Defence preparation.

(iv) CBI Officer visited HQ DGBR office on 01 May 2014 & 02 May 2014 in connection with ongoing investigation. CBI officer took certain information regarding the cases being investigated by them and brought out that certain grave evidence have been collected by them against these firms. The CBI officer further advised to stop all business dealings with these firms.

(v) To confirm, CBI''s considered opinion, HQ DGBR vide their letter No. 24062/DGBR/DPK/73/E8 dated 21 May 2014 requested CBI (Anti Corruption Branch) to clarify whether business dealings with this firms should be carried out or otherwise consequently CBI communication dated 25.6.2014 (Annexure C-2) from the Central Bureau of Investigation which is investigating a case of the petitioner''s firm calling upon the department in which CBI has intimated to issue necessary instructions that the proprietors/partners/directors of the accused firm/companies may not be allowed to participate in the tendering process."

It is further stated that the deponent tenders unconditional apology for not being able to decide the issue within the stipulated time frame as directed by this Court. It is claimed that the department considered the case of the petitioner in accordance with the directions, but due to various considerations as mentioned above, it decided not to accept the bid of the petitioner. It is further claimed that the CBI vide its letter No. 2382-84/RC 0962013A0003 dated 25 Jun 2014 had intimated to issue necessary instructions that the proprietors/partners/directors of the accused firm/companies may not be allowed to participate in the tendering process. In fact, the CBI had indicated in the FIR about the commission of grave offence of entering into criminal conspiracy, cheating, forgery and thereby causing huge pecuniary loss to the Government. The copies of the Directorate General Border Roads'' letter No. 24062/DGBR/DPK/73/E8 dated 21 May 2014 and CBI letter No. 2382-84/RC 0962013A0003 dated 25 Jun 2014 have been annexed as Annexures C-1 and C-2, respectively.

It is further submitted that the case of the petitioner has been duly considered as per the directions of this Court and in the given circumstances, it was concluded by the competent authority that it is not appropriate to grant work to the petitioner. Lastly, it is claimed that as per the legal opinion dated 28.11.2013 the department had been advised to put on hold all contracts in question till the completion of investigation by CBI pursuant to the registration of the FIR.

The petitioner filed rejoinder highlighting therein that necessary consideration as had been directed by this Court in its order dated 10.4.2014 has not been accorded in accordance with law as there is no material/document showing consideration by due application of mind to the orders passed by this Court. It is further claimed that the petitioner had now received a letter bearing No. 24062/132/E8 dated 23rd July, 2014 communicating therein the rejection of the claim of the petitioner.

It is alleged that the respondents have adopted every conceivable and possible unscrupulous and illegal methods to circumvent the order of this Court firstly by defying the said order by issuing letter dated 27.5.2014 suspending the registration of the petitioner''s firm and debarred the petitioner from future tendering with the BRO on the same ground of registration of FIR contrary to the rules and norms and in gross violation of the principles of natural justice, constraining the petitioner to approach the High Court of Jammu and Kashmir. It is claimed that probably the respondents realized their folly and thereafter issued a letter dated 11.7.2014 keeping the suspension of the petitioner''s firm in abeyance. Insofar as the registration of the FIR is concerned, it is claimed that these have been lodged without any basis and disclosed no offence against the petitioner. The allegations in the FIRs had earlier been enquired into by a High Level Court of Inquiry and were found without any substance. It is further claimed that despite lapse of a period ranging between seven to sixteen months, no charge-sheet has been filed in the competent court which was indicative of the fact that CBI had no material or evidence against the petitioner to substantiate the allegations contained in the FIR. The mere registration of FIRs could not be construed to be a legal and valid ground either barring the petitioner from executing the existing contract or from participating in the future tendering, particularly, when the petitioner''s suspension as a contractor stands revoked.

It is also claimed that the CBI cannot sit over the directions of this Court and it had no authority or jurisdiction to issue any directions not to obey the Court orders or even to suspend a duly allotted contract to a contractor or debar a contractor from allotment of contracts if otherwise found entitled to on completion merely on account of registration of FIR. The legal opinion obtained by the respondents is termed to be irrelevant and the petitioner emphasized that Annexure-J reveals the correct legal position.

We have heard learned counsel for the parties and have also gone through the records carefully and meticulously.

It cannot be disputed that the order passed by a competent Court-interim or final-has to be obeyed without any reservation. If such order is disobeyed or not complied with, the Court may refuse the party violating such order to hear him on merits as held by the Hon''ble Supreme Court in Prestige Lights Ltd. Vs. State Bank of India, wherein it has been held as under:

"24. An order passed by a competent court-interim or final-has to be obeyed without any reservation. If such order is disobeyed or not complied with, the court may refuse the party violating such order to hear him on merits. We are not unmindful of the situation that refusal to hear a party to the proceeding on merits is a "drastic step" and such a serious penalty should not be imposed on him except in grave and extraordinary situations, but sometimes such an action is needed in the larger interest of justice when a party obtaining interim relief intentionally and deliberately flouts such order by not abiding by the terms and conditions on which a relief is granted by the court in his favour."

This Court vide its order dated 10.4.2014 had directed the respondents to consider the case of the petitioner for allotment of the works. Therefore, the action of the respondents should reflect intense application of mind keeping in view the letter and spirit of the order passed by this Court.

The word "consideration" was examined by the Constitution Bench of the Hon''ble Supreme Court in Kaiser-I-Hind Pvt. Ltd. and Others Vs. National Textile Corporation (Maharashtra North) Ltd. and Others, wherein it was held as follows:

"14. In view of the aforesaid requirements, before obtaining the assent of the President, the State Government has to point out that the law made by the State Legislature is in respect of one of the matters enumerated in the Concurrent List by mentioning entry/entries of the Concurrent List and that it contains provision or provisions repugnant to the law made by Parliament or existing law. Further, the words "reserved for consideration" would definitely indicate that there should be active application of mind by the President to the repugnancy pointed out between the proposed State law and the earlier law made by Parliament and the necessity of having such a law, in the facts and circumstances of the matter, which is repugnant to a law enacted by Parliament prevailing in a State. The word "consideration" would manifest that after careful thinking over and due application of mind regarding the necessity of having State law which is repugnant to the law made by Parliament, the President may grant assent....."

The word "consider" was scrutinized by the Hon''ble Supreme Court in Chairman, LIC of India and Others Vs. A. Masilamani, and it was held:

"19. The word ''consider'' is of great significance. The dictionary meaning of the same is, "to think over", "to regard as", or "deem to be". Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term "consider" postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order."

In alleged compliance of the orders of the Court, the respondents vide letter dated 23.7.2014 have communicated the following order :-

""As per the order of the Hon''ble High Court of Himachal Pradesh at Shimla dated 10 Apr 2014, department has considered the case for allotment of works in the light of subject matter of writ petition. However, keeping in view the pendency of investigation pursuant to FIR containing serious allegation under Sections 120B of IPC, department has decided not to allot any tender till the logical conclusion of investigation by CBI in the aforesaid FIR No. RC0962013A0003 and other FIR cases with them against your firm and considering the fact that Paras 2, 3 (iv), 3 (vi) and 4 of letter No. 24062/DGBR/DPK/GEN/40/E8 dt. 04 Feb 2014 contained at Annx. J are part of departmental Note and do not confer any right on your firm, allotment of work to your firm has been considered and rejected by DGBR."

Notably, It is not disputed by the respondents that the petitioner is the lowest tenderer, but what is stated is that despite this, the tender cannot be awarded in his favour because of pendency of the FIRs as communicated vide the aforesaid letter. In doing so, the respondents have clearly sat in judgment over the orders passed by this Court because vide order dated 10.4.2014 the respondents had specifically been directed to consider the case of the petitioner for allotment of the works, subject matter of the writ petition, being a lowest tender, while keeping in view paras (ii), (iv) and (vi) contained in Annexure-J, within four weeks. Such a position in our opinion is contrary to the fundamental principles upon which the judicial system is based. It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged.

The respondents cannot be permitted to frustrate the effect of the order passed by this Court by passing the order dated 23.7.2014. This is clearly contemptuous and reliance can conveniently be placed upon the recent judgment of the Hon''ble Supreme Court in Bihar State Govt. Section Scl. Teachers Assn. Vs. Ashok Kumar Sinha and Others, in which case too like in the present one, Rules had been framed in such a manner that it had the effect of frustrating the judgment already passed and the Hon''ble Supreme Court then held:

"19. At the outset, we may observe that we are conscious of the limits within which we can undertake the scrutiny of the steps taken by the respondents, in these Contempt proceedings. The Court is supposed to adopt cautionary approach which would mean that if there is a substantial compliance of the directions given in the judgment, this Court is not supposed to go into the nitty gritty of the various measures taken by the Respondents. It is also correct that only if there is willful and contumacious disobedience of the orders, that the Court would take cognizance. Even when there are two equally consistent possibilities open to the Court, case of contempt is not made out. At the same time, it is permissible for the Court to examine as to whether the steps taken to purportedly comply with the directions of the judgment are in furtherance of its compliance or they tend to defeat the very purpose for which the directions were issued. We can certainly go into the issue as to whether the Government took certain steps in order to implement the directions of this Court and thereafter withdrew those measures and whether it amounts to non-implementation. Limited inquiry from the aforesaid perspective, into the provisions of 2014 Rules can also be undertaken to find out as to whether those provisions amount to nullifying the effect of the very merger of BSES with BES. As all these aspects have a direct co-relation with the issue as to whether the directions are implemented or not. We are, thus, of the opinion that this Court can indulge in this limited scrutiny as to whether provisions made in 2014 Rules frustrate the effect of the judgment and attempt is to achieve those results which were the arguments raised by the respondents at the time of hearing of C.A. No. 8226-8227 of 2012 but rejected by this Court. To put it otherwise, we can certainly examine as to whether 2014 Rules are made to implement the judgment or these Rules in effect nullify the result of merger of the two cadres.

By placing the erstwhile BSES teachers in teaching sub cadre, are allowed to go upto the position of Principal which is the highest promotional post in their sub cadre. On the other hand BES Officers who are put in administrative sub cadre would continue to control the schools. Moreover, each sub cadre is to have its separate seniority list. It means the combined gradation list is given a go bye and even by bringing BSES in BES, segregation between the two cadres is achieved with these provisions. To our mind the aforesaid provisions of 2014 Rules negate the very effect of merger which was envisaged way back in the year 1977. In spite of succeeding in three rounds of litigation, the petitioners are not only treated as a distinct and separate class with the creation of the aforesaid sub cadre, the benefit which could accrue to them in a combined seniority list, as a result of merger, have been snatched away from them. What was given to these petitioners by the respondents in compliance of the judgment earlier, has now been taken away with the promulgation of 2014 Rules.

Lest we may be misunderstood, we make it clear that it is the prerogative of the Government to frame service rules in one or the other manner. In case provisions contained in those Rules offend the rights of any of the employees, they have an independent right to challenge the same which can be judicially scrutinized by the Courts, applying the settled principles of judicial review. However, if such an exercise is undertaken on the premise that it is done to comply with the directions contained in the judgment and the Court finds that, ex facie, it is not so and on the contrary offends the directions in the judgment, such a move cannot be countenanced.

It is also crystal clear and borne from the record that the whole exercise was done to go out of way to help BES Officers. In fact, Mr. Rao even argued on these lines by pointing out that the promotions in BES cadres were made in two stages i.e. upto 31.12.1995 in one stage and from 1.1.1996 till now in the second stage. From 1.1.1996 no promotion was given to BES because it was need based and since the posts were to be identified, only the additional charge was given to them. What is lost sight of, in this entire arguments, is that, the merger is to take effect from 1977 and even Resolution to that effect is passed by the Cabinet. Further once that is done and the combined gradation list issued in the year 2007 was to be necessarily revived, further steps were to be taken from that stage. This Court is not suggesting that those of the petitioners who become senior to their counterparts in BES, should be given automatic promotion to second or third stages which was the apprehension expressed. These officers, as a result of merger and combined gradation list, would take their rightful place and thereafter their career progression would be permissible as per the Rules. For this purpose it was open to the Government to frame the Rules and make provisions laying down eligibility conditions. However, by well crafted technique of creating sub cadres and treating teaching category as dying sub cadre, almost the same result, which was the position before the merger, is achieved. It is obvious that such provisions in 2014 Rules are made with the sole intention to frustrate the effect of the judgment. We have no hesitation to say that this would amount to contempt of the Court."

Further in case the respondents felt that the order passed by this Court could not for any reason be complied with what prevented them from approaching this Court? Under no circumstances can the respondents be permitted to sit in judgment over the orders passed by this Court and by doing so, we are prima-facie of the view that the respondents have knowingly, deliberately and willfully disobeyed the orders passed by this Court on 10.4.2014.

Accordingly, let show cause notices be issued to the respondents in Form-I of the Contempt of Court (Himachal Pradesh Rules, 1996) calling upon the respondents to show cause why contempt proceedings against them be not initiated for having knowingly, deliberately and willfully violated the orders passed by this Court on 10.4.2014, returnable on 1.9.2014.

The learned counsel for the respondents would then request for time for filing an appropriate application before this Court. There is no bar for the respondents in doing so and are they at liberty to do so. Needless to say that the application as and when preferred shall be considered on its own merits.