Cheniram Gogoi and Others vs K.K. Kapur and Others

N.S. Singh, J.—In this application u/s 11 of the Contempt of Courts Act, 1971, hereinafter referred to as an Act, the Petitioners herein sought for initiation of Contempt of Courts proceeding and also for punishing the Respondents herein for contempt of Court for their wilful violation and defiance of the judgment and order dated 15.11.1994 passed by the learned Single Judge of this Court in Civil Rule No. 1198 of 1993 and also the order of 3rd April, 1995 passed by this Court in Writ Appeal No. 29 of 1995; contending inter alia, that as aggrieved by the actions of the Respondents concerned, concerning to the unequal treatments meted out amongst the equals, diet filed a writ petition being Civil Rule No. 1198 of 1993 before this Court for ventilating their grievances and accordingly, this Court heard the matter finally and allowed the prayer of the present Petitioners under the judgment and order dated 15.11.94 thus directing the present Respondent Nos. 1, 2, 3, 4 and 5 to pass necessary orders promoting the present Petitioners on and from 1.1.1986 and give all the monetary benefits w.e.f 1.1.1986 to 3.1.1989 or to their respective date of promotion and the same should he done within a period of three months from the date of receipt of the aforesaid order of 15.11.1994. It is also the case of the present petitioners that the present Respondents being aggrieved by the aforesaid judgment and order of 15.11.94 passed in the aforesaid Civil Rule No. 1198 of 1993, had preferred an appeal being Writ Appeal No. 29 of 1995 before this Court and the same is pending for disposal; and that said writ appeal was duly heard for admission on 7.3.95, 10.3.95 and 3.4.95 and thereafter, this Court after hearing the parties admitted the appeal and passed the following interim order on 3.4.95 and also with certain modification of the said interim order on 5.4.95. The operative part of the order is as under:

The operation of the impugned order dated 15.11.94 passed by the learned Single Judge in Civil Rule No. 1198 of 1993 is stayed, subject to the condition that the Appellant shall give the same benefit on the same terms which has been given to the employees of the Central Zone, to the other employees of the remaining Zones in the employment of O.N.G.C. This order is being passed subject to final result in the writ appeal.

According to the Petitioners, the Respondents particularly Respondent Nos. 2, 3, 4 and 5 have got full knowledge and information about the said order of 15.11.94 passed by this Court as well as the stay orders of 3.4.95 and 5.4.95 passed in the aforesaid Writ Appeal No. 29 of 1995 as the same were duly communicated to them through the Registry of this Court. However, the present Respondents filed an application for review of the aforesaid orders of 3.4.95 and 5.4.95 passed in the said Writ Appeal No. 29 of 1995, but no order was passed in the review application. The Petitioners herein urged that the Respondents wilfully violated rather, disobeyed the Court''s orders mentioned above without any justification and as such they deserve to be punished under the provisions of law laid down u/s 12 of the Act.

The contempt petition is contested by the Respondents by filing their respective counter-affidavits on the same and similar line of defence by contending inter alia, that being aggrieved by the order of 15.11.94 passed by this Court in Civil Rule No. 1198 of 1993, an appeal being Writ Appeal No. 29 of 1995 has been preferred and the said Writ Appeal came up for admission before a Division Bench of this Court consisting of Hon''ble the Chief Justice and Hon''ble Mr. Justice A. Deb and the said appeal was admitted on 3.4.95 with an interim order staying the operation of the impugned order of 15.11.94 subject to the condition that the Appellants, Respondents herein should give the same benefits on the same terms which had been given to the employees of the Central Zone, to the other employees of the remaining zones in the employment of O.N.G.C. As aggrieved by the aforesaid interim order of conditional stay, the O.N.G.C. as Appellant filed a Review Petition being Review Application No. 36 of 1995 for modification/alteration or review of the aforesaid orders of 3rd April and 5th April, 1995 passed in the aforesaid Writ Appeal No. 29 of 1995 which was later on disposed of on 30.11.95 with the following orders:

30.11.95

Heard Mr. D.K. Talukdar, learned Standing Counsel assisted by Mr. B.J. Talukdar learned Counsel for the applicant and Mr. B.M. Mahanta, assisted by Mr. G.P. Bhowmik, learned Counsel appearing for the Respondents.

Mr. D.K. Talukdar, learned Counsel appearing for the O.N.G.C. Appellant has urged before us that the O.N.G.C. and the recognised Unions of the O.N.G.C. were negotiating and a settlement has been arrived to between the parties.

It is being made clear that the stay order passed by us on 3.4.95 as modified on 5.4.95 will not come in the way of the O.N.G.C. from implementing any decision which may have been arrived in respect of the Workmen covered by the agreement.

Subject to the aforesaid observations the present review application is finally disposed of.

A certified copy of the order will be given to the learned Counsel for the parties on payment of usual charges within 24 hours.

The Respondents went on to contend that they did not defy the Court''s order, as such there is no question of wilful and negligent disobedience of the aforesaid orders of this Court. However, if by way of interpretation or otherwise it appears that there was some element of disobedience of Courts order due to wrong understanding, with bonafide belief they beg unconditional apology for such unintentional or unwillful act or omission and pray for absolving them of the offences of contempt of Court.

Learned Counsel appearing for the Petitioners submitted that this Court passed the order of 15.11.94 in Civil Rule No. 1198 of 1993 and also the order of 3.4.95 and 5.4.95 in the Writ Appeal No. 29 of 1995 thus affording/giving certain benefits to the present petitions which cannot be superseded by the so called Memorandum of Understanding, in short MoU, and that the aforesaid orders of this Court being inforce at the relevant time, there is no valid reason for non implementation of the same by the Respondents and as such they wilfully avoided to implement the same resulting to wilful disobedience of the aforesaid Court''s orders and the plea so far taken by the Respondents relating to the pendency of a review application cannot justify non implementation of the clear directions and orders of this Court The learned Counsel went on to argue that the present Petitioners could have been represented only by the officers Association in short, ASTO and thus the MoU is not binding upon the Petitioners as they were not parties to it and rather the said MoU cannot supersede the said Court''s orders passed either in Civil Rule No. 1198 of 1993 or in Writ Appeal No. 29 of 1995. Pendency of the aforesaid review petition cannot wash or waive the guilty of the Respondents for contempt of Courts, the learned Counsel for the Petitioners contended.

At the hearing the learned Counsel for the Respondents submitted that there is no material on record for establishing the fact that the Respondents had wilfully and intentionally defied and violated the Court''s order as alleged by the Petitioner and as such no case of contempt of Court has been made out by the Petitioners. Supporting the case of the Respondents, the learned Counsel further argued &at on reading the aforesaid orders of 15.11.94, 3.4.95, 5.4.95 and 30.11.95 the Respondents were under the bonafide belief that their cumulative effect was as under:

i) The judgment and order of November 15, 1994 was stayed.

ii) Though originally by the interim order of April 3, 1995 the stay was subject to your answering Respondents giving the same benefits as given to the employees of the Central Zone to other employees of the remaining Zones, the same was modified to permit your Respondents/O.N.G.C. to instead implement the MoU which had been arrived at by and between the management and employees of O.N.G.C. on September 7, 1993.

The learned Counsel further argued that the O.N.G.C. immediately took up the task of implementing the same MoU in consonance with the said order dated 30.11.95 by which the order of 3.4.95 came to be modified and as a result of which all the Petitioners except two of them have benefitted by their promotions having been pre-dated as per the statements set out as under:

STATUS OF PREDATION OF PROMOTION OF SHRI C.R. GOGOI AND OTHERS UNDER CLAUSE-I OF MoU

SI. No. Name Designation Earlier promotion w.e.f. Predation vide order Predation w.e.f.

C.R.Gogoi Supdt.(P and A) 1.1.89 7.2.96 1.1.87

Makbul Hussain -do- -do- -do- -do-

Lakhimi Goswami -do- -do- -do- -do-

A.C. Mech -do- 1.1.90 -do- 1.1.88

D.K. Bhattacharjee P.S. 1.1.90 30.1.96 -do-

A.C. Borah C.S.K. 1.1.90 26.7.96 2.1.88

B.N. Borkataky Head Radiographer cum X-Ray Technician 1.1.90 12.8.96 1.1.88

N.K. Baruah Head Pharmacist 1.1.91 31.8.96 1.1.89

Hira Kalita Matron 1.1.89 Not eligible

A.K. Bhuyan Head Lab Technician(Pats) -do- 12.8.96 1.1.87

Bhogeswar Saikia Head Operator (Wireless) 1.1.88 Order No. 401 (17)H.W(W)/92 TBG issued on 15.10.96 1.1.86

L.K. Duarah A.E.(E) 1.1.90 29.3.96 1.1.88

Rokheswar Dutta Supdt.(Tpt)

(ACR grading 31288 for the years 1983-84 and 84-85 awaited from region). Fax has already been given on 10.9.96

R.B.Borgohain 32804 Hd.D/Man (Civil) 1.1.90 (Name released as per order dated 25.1.96 1.1.88

Pradip Kr. Gogoi 41603 A.D.(Prodn) 1.1.90 15.2.96 1.1.88

Navashyam Mech A.D.(Prodn) 1.1.90 152.96 1.1.88

D.P. Sharma 14368 Finance 1.1.89 27.3.96 1.1.87

Apart from it, learned Counsel submitted that the Respondents tendered unconditional apology, if this Court feel that the action of the Respondents amounts to certain element of disobedience of Court''s orders due to wrong understanding which is a bonafide one on the part of the Respondents.

Now, this Court is to examine and see as to whether there is/was wilful disobedience to any of the judgments/orders as mentioned above by the Respondents within the purview of Section 2 of the Contempt''s of Courts Act, 1971. For better appreciation in this matter, Section 2(b) of the Act is hereby reproduced as hereunder:

2(b). "Civil Contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of undertaking given to a Court.

It is an admitted position that this Court by an order dated 15.11.94 passed m Civil Rule No. 1198 of 1993 directed the Respondents to pass necessary orders promoting these Petitioners from 1.1.86 and give all fee monetary benefits w.e.f 1.1.86 to 3.1.89 or to their respective date of promotion and the same shall be done within a period of 3 months from the date of receipt of the said order, and this Court under the related appeal being Writ Appeal No. 29 of 1995 preferred by the O.N.G.C. and another, this Court stayed the operation of the impugned order of 15.11.94 subject to the condition that the Appellant (O.N.G.C.) shall give some benefit on the same terms which has been given to the employees of the Central Zone to the other employees of the remaining Zones under the employment of O.N.G.C. and thereafter the said order of 3.4.95 passed in Writ Appeal No. 29 of 1995 was duly modified by an order dated 30.11.95 In Review Application No. 36 of 1995 with related observation which is quoted below:

It is being made clear that the stay order passed by us on 3.4.95 as modified on 5.4.95 will not come in the way of the O.N.G.C. from implementing any decision which may have been arrived in respect of the Workmen covered by that agreement.

On bare perusal of these existing materials on records, it is crystal clear that the Respondents did not implement the Court''s order mentioned above till 30.11.95 though the related orders were passed by this Court on 15.11.94, 3.4.95 and 5.4.95 and as such I am of the view that the Respondents disobeyed and defied the Court''s orders mentioned above. Now the question arises as to whether the Respondents had wilfully defied or disobeyed the aforesaid Court''s orders.

It is well settled that every infraction of the Court''s order does not amount to contempt of Court, it is only a wilful and deliberate violation of the Court''s orders and contumacious conduct on the part of the contemner which is to be condemned in contempt proceedings.

In dealing with the allegations of contempt it is not for the Court to assume a vindictive attitude in judging the allegations made against the contemner. Such allegations should be considered dispassionately in order to see if there has been deliberate and wilful defiance to the order of the Court so as to attract an order of conviction and sentence for contempt. Every infraction of Courts order does not amount to contempt of Court. It is only a wilful and deliberate violation of the Court''s order and contumacious conduct on the part of the contemner which is to be condemned in contempt proceedings. Section 13 of the Contempt of Court''s Act, 1971, provides that no Court shall impose a sentence for the contempt unless it is satisfied that the contempt is of such a nature that it substantially interferes or tends substantially to interfere with due course of justice. A wilful and deliberate violation of the order of Court must be shown to interfere with the due course of justice before such conduct can be punished for contempt.

As per related provisions of law contemplated u/s 2(b) of the Contempt of Court''s Act, 1971, what is required to be established by the Petitioners is nothing but wilful disobedience or wilful defiance to any judgment or order or wilful breach of undertaking given to a Court.

As discussed above, there is ample evidence on record that the Respondents had disobeyed and defied the aforesaid Courts orders, but considering the existing facts and circumstances of the case, particularly tendering an unconditional apology by die Respondents at the earlier stage of the case before the arguments were advanced by the parties in the instant case, I am of the view that such tenders are genuine and bonafide manner and as such the acceptance of such apology is called for from the end of this Court and accordingly such tender is duly accepted by this Court by invoking the provisions of law laid down u/s 12(1) of the Act which says that an apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bonafide, I am also of the view that the apology so far tendered by the Respondents is bonafide.

For the reasons and discussions made above, there is no material on record for establishing that the Respondents had wilfully disobeyed or defied the aforesaid Court''s order though there is material on record for establishing the fact that the Respondents had defied thereforesaid orders and accordingly, this Contempt petition is hereby closed.