B. Chandrasekhara Raju vs Deena Dayal Das

This is an application by the petitioner to punish the respondent for civil contempt under the Contempt of Courts Act for wilful disobedience of the orders of this Court in W.P.M.P. No. 5887/85 in W. P. No. 4141/85 dated 23-5-1985.

The following facts have to be stated for a proper appreciation of the points arising in the case.

The petitioner is a Junior Accountant in the Sub-Treasury at Rajampet, Siddavatam Taluk, Cuddapah District. On certain allegations including falsification of accounts and misappropriation, the petitioner was kept under suspension on 7-2-1983 by orders issued by the respondent, who is the District Treasury Officer, Cuddapah. In the order of suspension dated 7-2-1983, however, no reasons were mentioned. The petitioner requested on 10-8-1983 that a charge memo may be issued to him and accordingly on 12-9-83 a charge memo was issued framing four charges. Subsequently the petitioner states that he has filed applications on 17-9-1983, 7-10-1983, 21-10-1983 and 26-11-1983 for furnishing him copies of various documents for the purpose of filing his explanation. According to him, copies of documents required by him were not furnished. The petitioner was also not paid subsistence allowance initially and, therefore, on 20-4-1983 he requested for payment of subsistence allowance. The original suspension period expired on 8-8-1983 and thereafter a further order was passed on 26-10-1983 keeping the petitioner under suspension with retrospective effect from 8-8-1983. On 20-1-1984 the petitioner is again said to have requested for copies of documents for filing his explanation. On 10-2-1984 the suspension was again extended with retrospective effect from 8-2-1984 for another period of six months. The petitioner is said to have further filed applications on 20-3-1984 and 23-4-1984 for furnishing documents. According to the petitioner, for the various letters written by him there was not a single reply from the respondent. Ultimately the petitioner states he requested by petitions dated 22-5-1984, 6-6-1984 and 26-7-1984 that he may be reinstated as the respondent was not going ahead with the enquiry or furnishing the requisite documents. At that stage, the extended period of suspension came to an end on 7-8-1984. The petitioner then moved the Andhra Pradesh Administrative Tribunal in R.P. No. 420 of 1984. The same was admitted on 27-9-1984 and was disposed of on 23-1-1985 stating that if the enquiry was not completed within a period of two months or if police have not filed a charge-sheet within two months, the petitioner shall be reinstated.

After the judgment of the Tribunal, the petitioner gave a representation on 24-1-1985 for being reinstated. It is now represented by the learned Government pleader before me appearing for the respondent that the police filed a case against the petitioner within the said period on 21-3-1985, but the petitioner came to know about it long thereafter. On 4-4-1984 a further order was passed extending suspension till the completion of the disciplinary enquiry.

It was at this juncture the petitioner filed W.P. No. 4141 of 1985. The same was admitted on 26-4-1985 and initially notice was ordered in W.P.M.P. No. 5887 of 1985. On 23-5-1985 the petitioner got the above W.P.M.P. posted before me in the vacation court and I passed an order. The operative portion of which reads as follows :-

"The petitioner has been under suspension from 7-2-1983. Having regard to the above facts, I direct that in the event of final orders not being passed within one week from today, the petitioner shall be reinstated."

That order was passed after hearing the Government Pleader. It is with reference to this order passed by me, the petitioner contends that the respondent committed contempt.

According to the petitioner the above order was brought to the notice of the respondent by him, but still the respondent could not take any action. On 29-6-1985 the petitioner addressed a registered letter to the respondent (the registration receipt Numbering 4843 at Cuddapah Post Office) clearly and categorically informing the respondent that the time fixed in the above W.P.M.P. for reinstatement has expired; that no charge-sheet has been filed; that he has not received any summons from the Criminal Court; that in spite of these facts, he has not received any orders of reinstatement and that therefore he once again prays that he may be reinstated in service with immediate effect. The petitioner clearly referred to W.P.M.P. No. 5887/85 and the orders passed therein and a copy of the order of this Court dated 23-5-1985 in the W.P.M.P. was enclosed along with the registered letter. There was no reply. On the other hand on 1-7-1985, the date on which the respondent is said to have received the abovesaid registered letter, he issued a memo. DTO/Cdp/1/83/Confdl. to the petitioner fixing the date of enquiry on 4-7-1985. It is the petitioner''s case that on 4-7-1985 his father met with an accident and he could not attend the enquiry. The matter was posted to 6-7-1985. We are not concerned with the enquiry as such for the purpose of this contempt application.

After the reopening of the courts after summer vacation, the petitioner again moved W.P.M.P. No. 5887/85. I again passed an order (after clarifying certain other points relating to the period within which the final enquiry should be completed) as follows :-

"It is represented before me that the petitioner has not yet been reinstated in spite of the orders of the Tribunal as well as the orders of this Court dt. 23-5-1985.

I direct the respondent to reinstate the petitioner to duty within ten days of the receipt of this order. The contempt application filed by the petitioner is adjourned and will be posted on 26-7-1985."

On 26-7-1985 I admitted the contempt petition and ordered notice to the respondent inasmuch as the petitioner did not hear anything from the respondent.

It is now revealed from the counter-affidavit of the respondent and the records that the order passed by me on 12-7-1985 was received by the respondent only on 19-7-1985, but in the meantime, according to the petitioner, he represented before the respondent on 15-7-1985 that he may be reinstated according to the directions of this Court on 23-5-1985 as well as the further direction dt. 12-7-1985. There was no response. On the other hand, the respondent finalised the enquiry and sent up a report to the Director of Treasuries at Hyderabad on 16-7-1985 and thereupon the Director passed an order of dismissal of the petitioner from service on 22-7-1985. That order was signed by the said Director on 23-7-1985 and sent to the respondent''s place at Siddavatam by personal messenger and served on him on 25-7-1985 at 4-25 p.m.

From the aforesaid facts, it will be seen (1) that the order in W.P.M.P. No. 5887/85 dated 23-7-1985 was communicated to the respondent by the High Court by post, (2) that the petitioner brought the same to the notice of the respondent, (3) that the petitioner sent a representation accompanied by a copy of the order of the High Court dt. 23-5-1985 by registered post to the respondent on 29-6-1985, (4) that instead of taking action according to the directions of the High Court, the respondent issued memo to the petitioner on 1-7-1985 fixing the date of enquiry as 4-7-1985, (5) that this Court passed a further order on 12-7-1985 in the W.P.M.P. directing reinstatement within ten days from the date of receipt of the order and the same is said to have been received by the respondent on 19-7-1985, (6) that the petitioner requested reinstatement on 15-7-1985, (7) that the respondent completed the disciplinary enquiry and submitted his report to the Director of Treasuries on 16-7-1985, and (8) that the Director passed an order of dismissal on 22-7-1985, signed the same on 23-7-1985 at Hyderabad and the same was sent to the respondent by a messenger and served on the respondent on 25-7-1985 at 4-25 p.m.

It is contended by the petitioner''s counsel that the respondent was given several opportunities by this Court for complying with the directions and that he has wilfully disobeyed the directions and that, therefore, this is a clear case of contempt of Court.

Before I heard the respondent''s counsel, I have to state that respondent was personally present in the Court and I told the counsel Smt. V. Laxmi Devi that on these facts read with the counter-affidavit it would be open to the respondent to consider whether he would offer an unconditional apology and that he was free to do so if he was so inclined. But if he wishes to contest the case on merits, I would not favourably consider accepting an apology in the event of my coming to the conclusion that the respondent was guilty of Contempt of Court. The respondent, who was present in the court, did not care to avail of this further opportunity given by me in Court and instead, he allowed the counsel to argue the case on merits.

During the course of arguments, the learned Government Pleader appearing for the respondent submitted (1) that even though this Court passed an order in W.P.M.P. No. 5887/85, the respondent has not received the same, (2) that the respondent did receive the registered letter with the copy of the order of the High Court sent by registered post by the petitioner on 29-6-1985. (Even though this fact is not specifically admitted in the counter, the respondent who was present in the court instructed the learned Government pleader that he did receive this registered notice on 29-6-1985), (3) that the further orders of this Court passed in the W.P.M.P. on 12-7-1985 were received only on 19-7-1985 and by that date the respondent had already submitted his report to the Director on 16-7-1985 and (4) that the oral representations by the petitioner regarding reinstatement said to have been made subsequent to the first order of this Court dt. 23-5-1985 and subsequent to the second order of this Court dt. 12-7-1985 (i.e. on 15-7-1985) are not true.

A perusal of the counter-affidavit filed by the respondent shows that it does not effectively deal with the allegations in the contempt application. Paragraphs 4 to 8 deal with the disciplinary enquiry while paragraph 3 contains allegations purporting to show that the petitioner has been in the habit of speaking lies. It is stated that this is clear from his conduct on earlier occasions. In para 2 of the counter it is stated that the petitioner did not see the respondent or any other officials in the office of the respondent on the dates mentioned by him or on any other date after 10-4-1985.

It may be noted that in para 3 of the petitioner''s affidavit he has clearly referred to the letter dated 29-6-1985 sent by him by registered post along with a copy of the order of the High Court dated 23-5-1985. This allegation has not been denied by the respondent. Further as stated by me, during the course of arguments, the learned Government Pleader accepted, on instructions from the respondent, that the said letter by registered post was, in fact, received by the respondent soon after 29-6-1985 and that the letter is available in the record.

I may also point out that I am not relying on the additional affidavit filed by the petitioner but am only considering the first affidavit filed by the petitioner with the contempt petition and on the respondent''s counter-affidavit.

The question that arises for consideration is, whether the respondent had knowledge of the order passed by this Court and whether he has wilfully disobeyed the same by not implementing the same ?

In my opinion, there were three occasions for the respondent when he can be said to have obtained knowledge of the order dt. 23-5-1985 in W.P.M.P. Firstly, it is possible that the copy of the order communicated by the High Court, was received by him. Secondly, it is reasonable to consider that the petitioner, who obtained an order in his favour, would have in the normal course brought it to the notice of the respondent i.e. the order passed by this Court in the W.P.M.P. Thirdly, we have the registered letter dt. 29-6-1985 sent by the petitioner along with a copy of the order in W.P.M.P.

I am prepared to give the respondent the benefit of doubt so far as the first and second occasions above referred to.

But so far as the registered letter dated 29-6-85 is concerned, it is admitted before me that the same was received by the respondent. The receipt of this letter, in my opinion, is clear proof of the knowledge of the orders of this Court on the part of the respondent.

What did the respondent do thereafter ? Instead of implementing the Court''s order, he issued a memo on 1-7-1985 fixing the date of enquiry as 4-7-1985. Thereafter he adjourned the enquiry to 6-7-1985, completed the enquiry and sent up the report to the Director on 16-7-1985. The order of dismissal was then passed by the Director on 22-7-1985, signed on 23-7-85 and served personally on the petitioner by messenger on 25-7-1985 at his village :

In my view, the respondent deliberatey disobeyed and ignored the orders of this Court, of which specific knowledge was brought to him by the registered letter dt. 29-6-1985. At no point of time the respondent even tried, after 29-6-85, at least to have the interim order vacated.

The events which took place after receipt of the registered letter definitely leave an impression that the respondent wanted to create a situation when it can be said that the writ petition itself has become infructuous, inasmuch as the subject matter of the writ petition is the order of suspension. It fact, on the adjourned day i.e., 26-7-1985, when I admitted the contempt case, the learned Government Pleader appeared and represented that the writ petition itself has become infructuous inasmuch as an order of dismissal has been passed on 22-7-85. It was, in fact, the said representation that raised serious suspicions in my mind and I admitted the contempt case to ascertain whether the respondent, having received the High Court''s orders, did entertain an intention to by-pass the orders of this court and plead for a dismissal of the writ petition itself on the ground that it had become infructuous.

I am therefore clearly of the view that the respondent deliberately disobeyed the orders of this Court and committed clear contempt of this Court''s orders.

After the arguments were concluded and I expressed my opinion about the matter, the learned counsel for the respondent, on instructions from her client, requested time to enable the respondent to file a further affidavit tendering apology.

25A. As the respondent did not avail of the opportunity given by me at the outset, I did not think it necessary to give any further time. I accordingly reserved the judgment. That was on the 9th August, 1985.

After the judgment was thus reserved, the petitioner filed Miscellaneous Application No. 174 of 1985 praying for permission to file an additional affidavit offering unconditional apology. As the same was brought to my notice by the Registry, I directed the posting or that petition on 16th August, 1985.

On the 16th August, 1985, when the petition was called, it was noticed that the abovesaid application No. 174/85 was a mere application to file an additional affidavit for tendering an unconditional apology but in fact, no such affidavit was filed into Court. When the Court pointed out the same, the petitioner prepared an additional affidavit in Court tendering ''unconditional apology'' and filed it.

The question is : Whether this belated apology is liable to be accepted ?

It is true that under the Explanation to Section 12(1) of the Contempt of Courts Act, 1971, it is stated that an apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide. Under the new Act, it is therefore possible that a doubtful contempt can be met by a conditional apology. The departure in the law has been noticed by the Supreme Court in Sri K. Ramadas Shenoy Vs. The Chief Officer, Town Municipal Council, Udipi and Others, . Even so an apology tendered long after the hearing is over cannot be treated as an act of contrition. The Supreme Court pointed out in Mulkh Raj Vs. State of Punjab, .

"An Apology is an act of contrition. Unless apology is offered at the earliest opportunity and in good grace, apology is born (deemed not born) of penitence. If apology is offered at a time when the Court is going to impose imprisonment, it ceases to be an apology and it becomes an act of a cringing coward."

In the two counter-affidavits filed by the respondent earlier, he has only justified his action. Except to state that he did not intend disrespect, he did not state that even if there was any contempt, he was apologising for the same. It was only after the court expressed its view and after judgment was reserved that he filed a petition for permission to file an affidavit. Even that affidavit was not filed till it was pointed out to him on the adjourned day. Only then, he filed the fourth affidavit tendering apology.

I am of the view that the belated apology tendered by the respondent does not purge the contempt. If such an apology is to be accepted, the Courts would be rendered almost powerless to have their orders carried out. While it may be open to the accused to file an explanation coupled with an apology at the earliest stage in view of the Explanation to Section 12(1) of the 1971 Act, it was wholly unjustifiable for the respondent not to have availed the further opportunity given in open Court and then come forward with an apology after the Court has expressed its view about the matter and judgment is reserved.

I am therefore unable to accept the apology as one made by a person who is otherwise bona fide in implementation of the orders of the Court. The apology is, in my opinion, not bona fide and is made only for the purposes of avoiding punitive action by this Court.

In the interests of the administration of justice I am constrained to reject the apology.

I hold the respondent guilty of contempt of Court and impose a fine of Rs. 100/- (Rupees one hundred only) to be paid within one month from today. The contempt petition is allowed. No costs.

Order accordingly.