Bimal Majumder vs Gopal Kumar Pillai and Others

Debasish Kar Gupta, J.—This is an application filed under the Contempt of Courts Act. 1971 for alleged violation of an order dated May 4, 2011 passed in W.P. No. 6525 (W) of 2011 (In Re:Bimal Majumder v. Union of India & Ors.). The operative portions of the above order are quoted below:

Therefore, I direct the respondent authority to act upon certificate of SEB Medical College & Hospital dated August 25, 2010 (annexure P/4 at page 19 to the writ application) in the matter of promotion cum posting of the petitioner forthwith.

This writ petition stands disposed of.

There will be, however, no order as to costs.

Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.

(Debasish Kar Gupta, J.)

Since the above order was not complied with, this application was filed by the writ petitioner. A contempt rule was issued in connection with this application on February 6, 2012.

After issuing of this contempt rule, the alleged contemnor Nos. 2 and 5 filed two separate affidavits-of-compliance affirming the same on April 4, 2012 and March 12, 2012 respectively. In the above affidavits-of-compliance it was staled that the application for review of the order passed in the writ application was filed before this Court. After dismissal of the same, the alleged contemnors took steps to promote the petitioner to the post of Head Constable in compliance of the order passed in the writ application. It appears from the order of movement dated February 25, 2012 signed by the Assistant Commandant on behalf of the alleged contemnor No. 5 that the petitioner had been asked to appear before the SMB at CISF Composite Hospital Bhilai on January 23, 2012, i.e., after disposal of the above writ application. On the basis of the medical certificate dated February 23, 2012, the petitioner was promoted to the post of Head Constable since he had been found fit for the category of SHAPE-I.

Today, an affidavit-of-compliance is filed by the alleged contemnor No. 2, Let the same be kept on record.

It appears from the affidavit-of-compliance that the Assistant Commandant issued a corrigendum to the movement order dated February 25, 2012 to give promotion to the writ petitioner to the post of Head Constable in compliance of the order passed in the writ application and not on the basis of the medical certificate dated February 23, 2012 issued by the SMB at CISF Composite Hospital Bhilai.

It is submitted by the learned Advocate appearing on behalf of the petitioner that from the affidavit-of-compliance filed by the alleged contemnor No. 2 today, no satisfactory explanation is available. According to him the above order was issued in wilful disobedience of the order passed by this Court in the writ application.

On the other hand, it is submitted by the learned Additional Solicitor General, appearing on behalf of the alleged contemnor Nos. 2 and 5, that the petitioner was asked to appear in the routine medical examination on January 23, 2012 for general health check up. In every year in terms of 4.11 of the Instruction for Medical Examination and Classification of Personnel serving in the CPMF issued by the Central Government, Ministry of Home Affairs, and it was not done with a view to disobey the order passed by this Court. It is further submitted by the learned Additional Solicitor General that it was a case of inadvertence. After detection of the above error proper steps have been taken to give the petitioner promotion to the post of Head Constable in compliance of the order passed by this Court in the writ application.

I have heard the learned Counsel appearing for the respective parties at length and I have considered the facts and circumstances of this case.

From the affidavit-of-compliance filed before this Court today. I find that at no point of time the alleged contemnor No. 2 was directly involved in the matter of issuing the order of promotion to the petitioner in compliance of the order passed by this Court. Therefore. 1 do not find any wilful disobedience on his part.

So far as the alleged contemnor No. 5 is concerned, I find that admittedly the order of movement dated February 25, 2012 was issued from his office. One Assistant Commandant issued the above order on behalf of the alleged contemnor No. 5. So it does not lie on the mouth of the alleged contemnor No. 5 that it was done without his knowledge or consent.

For ascertaining the conduct of the alleged contemnor No. 5 in the matter, the relevant portions of the above movement order dated February 25, 2012 are quoted below:

CERTIFICATE:

He is confirmed in his entry wef. 01.07.1991.

He has been successfully completed PCC from Const to HC/GD. He has been found medical category SHAPE-I date 23.01.2012 by the SMB at CISF Composite Hospital Bhilai is communicated vide DIG/Director (Medical). CISF HQrs New Delhi letter No.M-20015(3)/CISF/Med.Dir./ SMB vide (Bhilai)/2012/235 dated 23.02.2012 before relieving on Promotion cum Posting.

No disciplinary/legal proceeding/sexual harassment case are pending against him and he is not under currency of punishment and his integrity is also certified.

No fresh complaint has originated against him and no fresh enquiry has been initiated against him.

He belong to SC Category.

(Emphasis supplied)

From the clause 2 of the above communication it is revealed that, after disposal of the writ application with a direction for acting upon the certificate of SEB Medical College & Hospital dated August 25, 2010 in the matter of promotion and posting, the petitioner was compelled to appear in the medical examination on January 23, 2012 before the SMB at CISF Composite Hospital Bhilai. The promotion was given to the petitioner on the basis of the above medical examination.

For ascertaining the conduct of the alleged contemnor No. 5 in the light of the Instructions for Medical Examination and Classification of Personnel Serving in the CPMF issued by the Central Government, Ministry of Home Affairs, the provisions of clause 4.11 and 4.13 are quoted below:

4.11 Authority:

The concerned Unit/Office in which an individual is posted where due for AME will initiate it in a planned manner, taking up with the Medical authority of the concerned hospital as indicated in Para 4.15 below during January every year. The same will be done by the Force Directorate (Pers branch) for Officers/personnel on deputation to other organizations. All are required to be examined system wise with greater clinical details including ECG. Chest X-Ray. GTT, lipid profile. RFT. etc. for all men: and USG abdomen. Gynecological check-up for ladies in addition, as per requirement. Services from other nearby Govt. hospitals may be obtained in case facilities are not available at own Force hospital subject to the condition that these are carried out in presence of at least one of the board members. The findings will be recorded in proforma ''C''. It is the responsibility of the individual as well as the concerned unit Head to ensure that AME is held in time.

4.13 Mandatory for the purpose of promotion:

Medical Category SHAPE-I will be an essential condition for promotion of all combaised personnel in all groups/ranks/cadres in the CPMFs. In case of those, whose illness is of permanent nature and who are not SHAPE-I, they will be considered for promotion by DPC but will be declared unfit for promotion, even if they are otherwise fit for promotion. In ease of those personnel, whose illness is of temporary nature, after considering the cases for promotion alongwith others, if, they are otherwise fit the DPC will grade them as fit for promotion'' subject to attaining SHAPE-I medical category. As and when they regain the SHAPE-I medical category, they will be promoted as per recommendations of DPC. But they will not be entitled to back wages. However, they will retain their seniority.

Admittedly, all the members of CISF were under obligation to appear before the medical board once in a year for medical check up. But in view of the language of the provisions of clause 4.13 vis-a-vis the language of the order of movement dated February 25, 2012, I find that the petitioner was promoted upon consideration of the fact that he had been found in the category of SHAPE-I by the SMB at CISF Composite Hospital Bhilai. I find no substance in the submissions made by the learned Additional Solicitor General that the purpose of the medical examination of the petitioner was only to comply with the provisions of clause 4.11. Otherwise the language of the order of movement dated February 25, 2012 would have been different altogether.

That apart, if an executive order of a Government is pitted against a judicial order passed in an application under Article 226 of the Constitution of India, the judicial order must prevail. But I do not find that the alleged contemnor No. 5 had made any attempt to take a leave from the Court before the medical examination of the petitioner in order to comply with the above instructions of the Central Government, Ministry of Home Affairs, though the alleged contemner No. 5 was a party to an application by which review of the order passed in the writ application was sought for.

In the above circumstances. I hold the alleged contemner No. 5 guilty of committing contempt for wilful disobedience of the order dated May 4, 2011 passed in the matter of Bimal Majumder v. Union of India & Ors. (In Re: W.P. No. 6525 (W) of 2011).

Before awarding sentence to him the submissions made by the contemnor No. 5 in paragraph 8 of the affidavit-of-compliance (which is filed before this Court today) is taken into consideration under the provisions of proviso to sub-section (1) of section 12 of the Contempt of Courts Act. 1971 and the submissions made in the above paragraph are quoted below:

That in the light of what have been staled in the preceding paragraphs hereof, it would be evident that the mistakes committed in the order dated 25th February 2012. while complying with the order passed by this Hon''ble Court, have been corrected. 1 once again tender my unqualified apology for the aforesaid mistakes committed by my subordinate officers and beseech your Lordship to kindly accept the same and condone the said lapses. I assure this Hon''ble Court that the mistakes referred to hereinbefore committed by my subordinate was wholly unintentional and was neither willful nor deliberate.

Considering the status and the responsibility attached to the post of the contemnor No. 5 as also considering that the apology has been tendered by him no punishment is imposed upon him save and except a direction upon him to take appropriate steps for preventing wilful disobedience of the order passed by the High Court in future which steps shall include circulation of this order amongst his subordinate officers up to the rank of Assistant Commandant within a month.

The contempt rule is made absolute in terms of the direction given hereinabove. There will be, however, no order as to costs.

Urgent photostat certified copy of this order be supplied to the parties, if applied for, subject to compliance with all necessary formalities.