Darsan Sarkar & Ors vs Arnab Roy & Ors

Sahidullah Munshi, J

This Contempt Application has been affirmed by one Sri Prasanna Kumar Deb Sharma on 8th June, 2015 being the petitioner no.2 for self and on behalf of the other petitioners as duly authorized by them.

According to the petitioner the judgment and order passed by this Court on 12th December, 2014 has not been complied with. After notice of contempt was issued, Mr. Santanu Mitra learned advocate appeared for the alleged contemnor no.3, Sri Kallyanmoy Ganguly (Administrator), President, West Bengal Board of Secondary Education and Sri Joytosh Majumdar learned Government pleader appeared for the alleged contemnor nos. 1 and 2. In the order dated December 12, 2014 this Court issued some direction upon the West Bengal Board of Secondary Education to place the entire matter before the Director of School Education, West Bengal within a period of four weeks. The operative part of the order is as follows:

"In view of the above I also direct the West Bengal Board of Secondary Education to place the entire matter before the Director of School Education, West Bengal, within a period of four weeks from the date of communication of the order and the matter being so placed the Director of School Education shall forward his views in the matter of grant of finance within four weeks thereafter to the Secretary, Education Department, who shall take a decision, if not already taken in the meantime, in the matter within eight weeks. After receipt of the views from the Director of School Education he will give an opportunity of hearing to the petitioners with regard to the grant of financial assistance to the school in question. The Secretary, Education Department shall also communicate his decision to the petitioners within a period of two weeks from the date of decision to be so taken."

After hearing Mr. Mitra and as it reveals from the contempt application itself that the West Bengal Board of Secondary Education was directed only to place the matter before the Director of School Education and it is undisputed that the board complied with the direction so passed on it in time and having regard to such compliance the matter could subsequently be taken up by the other contemnors.

Two separate affidavits of compliance have been filed by the alleged contemnor nos. 1 and 2. Alleged contemnor no.1 is Mr. Arnab Roy, who was working in the Office of the School Education Department, Government of West Bengal at the relevant time. In his affidavit he has stated that no act of contempt has been committed by him but for abundant caution it unintentionally any contempt has been committed, he has tendered unqualified apology for the same and also prayed for acceptance thereof. Contemnor no.2 is one Abanindra Singh, happens to be the Commissioner of School Education Department, Government of West Bengal. Both the affidavits of alleged contemnor nos.1 and 2 are taken up together for consideration. Mr. Majumdar appearing for the alleged contemnor nos. 1 and 2 at the beginning of his submission pointed out before this Court that the contempt petition is not in accordance with Rule 4 and 7 of the Calcutta High Court Contempt of Court's Rules, 1975. He submitted that violations have not been clearly mentioned nor even the prayers have been made distinctly. It is true that the contempt application has not been drafted in compliance of Rule 7 which is apparent from the prayers of the contempt application. The manner of violation has not been distinctly mentioned in the body. However, instead of going by the same I take up the contempt application on merit.

Mr. Bhattacharya in support of his contention has referred to the following decisions :

• Osman Ghani -Vs. - Mr. Khalil Ahmed & Ors. reported in (2016) 6 WBLR (Cal) 743;

• Pratap Chakraborty and Anr. -Vs. - Shankar Chakraborty and Anr. reported in (2010) 15 SCC 437;

• Krebs Manufacturing & Services Ltd. -Vs. - Vijoy Kumar Prasad reported in 2016(3) CHN (Cal) 748;

• Maninderjit Singh Bitta -Vs. - Union of India and Ors. reported in (2012) 1 SCC 273;

• State of Bihar and Ors. -Vs. - Rejendra Singh and Anr. reported in AIR 2004 SC 4419;

• State of West Bengal and Ors. -Vs. - Abdul Kuddus and Ors. reported in AIR 2000 Cal 73;

• J.S. Parihar -Vs. - Ganpat Duggar and Ors. reported in AIR 1997 SC 113;

• Lt. Col. (Retd.) Ashok Kumar -Vs. - Union of India and Ors. reported in 1997 CRI. L. J. 2688 and

• Ahmed Ali -Vs. - The Superintendent, District Jail, Tezpur and Ors. reported in 1987 CRI. L. J. 1845.

The decisions referred to by Mr. Bhattacharya are in a case where the Court has held violation and when such violation is a cause of non-implementing the order within the time beyond any reasonable explanation. In the present case I have no hesitation to say that the petitioner did not cooperate with the alleged contemnors so that they could be in a position to take a decision in pursuance of my order. The petitioners even after my order passed on 26th February, 2016 took the same stand and did not allow the alleged contemnors to apply their mind on the judgment and order passed by this Court. Therefore, none of the decision helps the petitioner.

In my view no contempt has at all been committed.

From the affidavit of compliance it appears that it is not correct to say that the order has been disregarded and/or flouted as alleged by the petitioner. The only violation that has been committed by the alleged contemnors in not taking up the matter within the time frame mentioned in the order as I have already pointed out. The direction was upon Director of School Education, that is, alleged contemnor no.2 to forward his views with regard to the grant of finance within four weeks. The contemnor no.1 was directed to take a decision within a period of eight weeks after receipt of the views from the director and/or Commissioner of School Education, that is, alleged contemnor no.2 after giving an opportunity of hearing to the petitioner with regard to the financial assistance to the school in question. The whole object of filing the writ petition on which the above mentioned order was passed was to justify whether the authorities could refuse to grant financial assistance to the petitioners/school. It has been boldly submitted by the petitioner that he was called by the alleged contemnors to give an opportunity of hearing in terms of the order passed by this Court but since the authorities did not issue notice of hearing within the time frame the petitioner did not respond to such hearing. The alleged contemnors say that time and again they requested the petitioner to appear before them in order to act in terms of the order passed by this Court. Whether or not the school should get the financial benefit as indicated in the judgment was directed to be decided upon hearing but they flatly refused to attend the hearing. It is the submission of the petitioner that since the alleged contemnors did not act within time they should be hauled up for contempt as the action on the part of the petitioner is quite justified to not attend the hearing. This attitude of the petitioners cannot be appreciated at all. It is also undisputed that after the notice of hearing was received by the petitioner they did not file any application before this Court to bring it to its notice the delayed action on the part of the contemnors. On the merits of the application for contempt I find it is the only contempt that the contemnors did not offer an opportunity of hearing to the petitioner in time. From the affidavit of compliance of the contemnor no.2 it appears that after my order was communicated hearing was scheduled to be held on 24th November, 2011 whereas according to the petitioner this action was taken after the contempt application was filed on 08.06.2015. Therefore, according to the petitioners the authorities have committed contempt by not taking any steps within the time frame. In the contempt application an order was passed by this Court on 26.02.2016 whereby this Court expressed in the following terms"

"Today when the matter is taken up, no one appears on behalf of the contemnor nos.1 and 2. No accommodation has been sought for on their behalf also. I am prima facie satisfied that the Court's order has not been complied with in its true spirit. The contemnor nos.1 and 2 are directed to be personally present in this Court on 18th March, 2016 to explain before this Court as to why the order has not been complied with. However, it is made clear that this order will not stand in the way of complying with the order before the next date fixed.

Let, this matter appear in the list on 18th March, 2016."

In order to comply with this Court's order the Commissioner of School Education fixed hearing on 24.11.2015 but none appeared. Again the matter was fixed on 01.12.2015 when only one representative from the West Bengal Board of Secondary Education attended but the petitioner was absent on call. A further hearing was allowed to be fixed on 05.01.2016 but despite notices through speed post petitioners were found absent on call. As a result the hearing was postponed. Again 19.01.2016 was fixed for hearing. Notice thereof was served through speed post upon the petitioners and their learned advocates but no one turned up. As a result hearing was also postponed. Affidavit of compliance further disclosed that the hearing was again fixed on 16th February, 2016 and 8th March, 2016.

18th March, 2016 was the date returnable when the alleged contemnors were directed to appear in person in pursuance of order dated 26.02.2016. Order dated 26.02.2016 was passed in presence of learned advocate for the petitioner and the alleged contemnor no.3. This order speaks of the fact that if by that time the order had not been complied with by them pendency of contempt application would not stand in the way of complying with the order. Therefore, it was made clear that there would be no bar for the alleged contemnors to comply with the directions contained in the order dated 12th December, 2014 disposing of the petition. It, thus, cannot perhaps justifiably said by the petitioner that since notice of hearing was not issued in time the authorities were in contempt. The petitioners can at all be also justified to ignore the notice of hearing and taking a decision not to attend such hearing. This attitude of the petitioners is seriously deprecated and I am not inclined to issue any rule of contempt alleging that the order of the Court has been violated. In fact, the direction contained in the said order disposing of the writ petition was not an order of mandamus directing grant of 'finance' to the organizing school rather in the nature of consideration whether the same would be possible for the government or not, and for that purpose to give an opportunity of hearing to the petitioner and only thereafter to come to a conclusion by way of a reasoned decision which has been avoided by the petitioners with oblique motive. The contempt application, therefore, fails and the same is dismissed.

Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the respective parties upon compliance of all usual formalities.