Indian Oil Corporation Limited and Others vs Sheo Shankar Mishra

Nagendra Rai, J.—This appeal has been filed u/s 19 of the Contempt of Courts Act, 1971 (hereinafter referred to as the ''Act'') against the judgment and order of punishment passed by the learned Single Judge of this Court by which he has punished the Appellant Nos. 2 and 3 u/s 12 of the Contempt of Courts Act and sentenced each of them to pay a fine of Rs. 1000/- and in the default, to undergo simple imprisonment for two weeks. He has also punished Appellant No. 4 under the said section and ordered him to pay a fine of Rs. 500/- and in default to go simple imprisonment for one week.

The Respondent Shiv Shankar Mishra filed a Title Suit No. 136 of 1986 before the Munsif, Begusarai on 3.12.1981 for declaration that he is entitled to have his seniority from 1.5.1963, the date of his joining as Timekeeper on permanent basis and for his pay and allowances on the basis of seniority. He further prayed that the Defendants be directed through mandatory injunction to place the Petitioner on the seniority list on the basis of his joining as timekeeper from 1.5.1963.

The said suit was decreed on 24th March, 1984. The operative portion of the judgment runs as follows:

The Plaintiff is held entitled to have his seniority from 1.5.1963 the date of his joining as timekeeper on permanent basis and accordingly he is further held entitled to get consequential benefits according to him on the basis of his seniority on and from 1.5.1963 in the matter of his promotion and emoluments. The Defendants are directed by order of mandatory injunction to place the Plaintiff on seniority list as held above and further directed to grant him all consequential reliefs in the matter of promotions and emoluments.

The Corporation and its officers challenged the aforesaid judgment and decree in appeal before the District Judge which was upheld by him on 4.4.1985. Thereafter, the Corporation filed a Second Appeal No. 193 of 1985 in this Court which was allowed on the ground that the affected persons were not impleaded party in the plaint. The Plaintiff challenged the said judgment before the Apex Court. The Apex Court remanded the matter to the High Court to hear the appeal after impleading the necessary party. Thereafter, the appeal was heard and dismissed on 9.10.1990. While dismissing the appeal, this Court directed the Corporation to immediately comply with the judgment and decree passed by the Trial Court. Again the matter was taken to the Apex Court by the Corporation as well as the persons who were added as parties in the High Court in pursuance of the directions of the Apex Court by filing two S.L.R petitions, namely, 4249 of 1991 and 4751 of 1991. Both were dismissed on 21.3.1991.

It appears from the record that after Plaintiff Respondent succeeded in the Trial Court, he levied an execution case being Execution Case No. 4 of 1984/26 of 1985 in the Executing Court. As the matter was pending before the Higher Courts, no progress could be made in the Execution case, however, after the dismissal of the matter by the Supreme Court, the Plaintiff took steps in the Execution case.

It appears further from the record that the applications were filed on behalf of the Corporation on 24.8.1991, 4.5.1991 and 6.5.1991 wherein it was stated that they would comply with the judgment and decree. The learned Execution Court granted time on 4.5.1991 to comply with the order within a month but the judgment debtors did not comply with the order. In the meantime the Plaintiff Respondents came to this Court and filed a Miscellaneous Judicial Case on 9.7.1991 for punishing the Appellants Nos. 2 and 3 who were Opposite Parties in the said application.

In this M.J.C. case, the learned single judge issued directions from time to time, to the Appellants. Affidavits were filed, on behalf of the Corporation and its officers in the said M.J.C. case sworn by Appellant Nirmal Kumar Singh. The learned Judge, having noticed that the false statements were made in some of the affidavits, initiated a proceeding for contempt against Nirmal Kumar Singh also and finally by order under challenge, has punished them as stated above.

The Appellants have been punished for committing civil contempts which has been defined u/s 2(b) of the Act which means willful disobedience to any judgment, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to a Court. The proceedings for contempt are quasi-criminal in nature unless it is proved beyond reasonable doubts that a person has wilfully disobeyed the judgment, order, direction or undertaking, he cannot be punished for contempt of Court. A bare perusal of the definition shows that disobedience should be willful meaning thereby there must appear to be clear intention on the part of the person proceeded against to flout the judgment, decree etc. Before a person is punished for civil contempt, it must be shown that there was deliberate attempt on his part to circumvent the direction or order of the Court and he has adopted wrong method to avoid the implementation of the order. There is a purposeful and clear intention to flout the order.

The error alleged to have been committed by the person proceeded against must be a willful error proceeding for improper and corrupt motive. The lack of proper care and caution is not sufficient to punish a person for contempt. Similarly, a bonafide misinterpretation of an order is no ground to punish a person for contempt. What amounts to deliberate, disobedience, has been explained by the Apex Court in the case of S.S. Roy Vs. State of Orissa and Others, in the following words:

The error must be a willful error proceeding from improper or corrupt motives in order that he may be punished for contempt of Court. On the facts found, the Appellant can certainly be said to have acted without proper care and caution but there is nothing on the record to suggest any willful culpability on his part and it has been expressly held by the learned Judges of the High Court that he was not actuated by any corrupt or dishonest motive. In these circumstances, we think that the order passed by the High Court cannot be supported.

Before considering the question as to whether the Appellants wilfully disobeyed the judgment and order I would like first to decide the submissions advanced by the Appellant as to the maintainability of the contempt proceeding itself.

The learned Counsel for the Appellants contended that once an execution proceeding is pending in the Court to execute the decree, the contempt proceeding is not maintainable in the eye of law. According to him, a proceeding for contempt id not a remedy to execute a decree. The Counsel appearing on behalf of the Respondents on the other hand, contended that the pendency of the execution case is no bar to the initiation of the contempt proceeding for the reason both are two different independent proceeding. Execution proceedings are initiated for the enforcement of terms and directions of the judgment and decree of the Court against the concerned party whereas the contempt is initiated for violation of the judgment and decree etc.

So far as the execution proceeding is concerned, as already stated above the decree holder has levied an execution case which was pending at the time when this M.J.C. application was filed. Now the decree has been satisfied and the execution case has come to an end. However, that will not make any difference so far as the question raised in the appeal is concerned.

The execution proceeding as well as contempt proceeding both are independent proceedings and they operate in two different fields or spheres. So far as the execution proceeding is concerned, that is filed by a party against the other party to the litigation for enforcement of the rights and liabilities created under the decree or the order. The contempt proceedings are proceedings to uphold the prestige and the dignity of the Court and majesty of law. It has nothing to do with the execution of the decree or order passed in a litigation. One proceeding cannot be termed as a substitute for the other. The contempt proceeding cannot be used as a weapon against the judgment debtor to force him to comply with the decree or order. The contempt proceeding can be initiated only when the materials on record show willful disobedience of the order. Raising valid objection in the execution proceeding regarding executability of the decree under the provisions of the CPC or under any law, or taking other recourse of similar type permissible in law in an execution proceeding, cannot be turned as a willful disobedience and a proceeding for contempt cannot be initiated on that ground.

The law in this regard has been clearly stated in Halsbury''s Laws of England (third edition) Vol. 8 at page 20-21 under the heading ''Contempt in Procedure''.

In circumstances involving misconduct contempt in procedure bears a two fold character, implying as between the parties to the proceedings merely a right to exercise and a liability to submit to a form of civil execution, but as between party in default and the State, a penal or disciplinary jurisdiction to be exercised by the Court in the public interest." Misconduct of this kind consists in willful disobedience to any order or process, or in the breach of an undertaking given to the Court.

A division Bench of the Calcutta High Court in the case of Mira Bose Vs. Santosh Kumar Bose, has held that only because an order is enforceable by a party to the action in whose favour it has been made it can not be said that disobedience to it cannot be contempt of Court.

The learned Counsel for the Appellant relied upon a full bench judgment of Punjab and Haryana High Court in the case of Parkash Chand Vs. S.S. Grewal and Others, in support of his contention. The said judgment, in my view, does not support the extreme stand taken by the counsel for the Appellants. In that case it has been only held that the proceeding for contempt of Court cannot be used as a lever to obtain a relief in accordance with the decree from the judgment debtor. These proceedings have to be resorted to, to uphold the dignity of the Court.

In my considered view, the pendency of the execution case is no bar to the initiation of the Contempt Proceeding for willful disobedience of judgment and order provided the contempt is initiated to uphold the dignity of the Court and majesty of the law. However, it is made clear that in no case the contempt proceeding should be made a substitute for the execution proceeding. The paramount or if I say the only consideration for initiation of civil contempt proceeding should be the willful obedience of the judgment, decree and accordingly the submissions of the Appellants regarding the maintainability of the proceeding is rejected.

It has to be decided as to whether the Appellants can be held to have wilfully disobeyed the judgment and decree, thus committed civil contempt. The learned Judge has held the Appellants guilty after coming to a finding that Appellant Nos. 2 and 3 have deliberately disobeyed the judgment and decree of the Trial Court upheld by the superior Court and Appellant No. 4 for filing a false affidavit in the contempt proceeding.

In the execution proceeding, as stated above the Appellants had filed several petitions clearly stating therein that they are ready to obey the direction under the judgment and decree and prayed for some time. If further appears that during the execution proceeding, the executing Court itself was not clear as to what would be the entitlement of the decree holder in the terms of decree. The decree holder filed petition claiming that he was entitled to be promoted as the General Manager if the judgment and decree is given its full effect. As noted above, it was only mentioned in the judgment and decree that the decree holder, after giving seniority, is to be given consequential benefits in the matter of promotion and emoluments. There was no clear direction to promote him to a particular grade or rank. According to the judgment debtor Appellants, the Plaintiff was not entitled to be promoted up to the level of the General Manager. During the pendency of the contempt proceeding before this Court, the Corporation issued an order by which the Plaintiff was given promotion to Grade ''A''. The Plaintiff filed a petition challenging the aforesaid promotion on the ground the persons junior to him have been promoted to the said post from back date and as such the promotion given to him by the Corporation, is not in the terms and conditions of the judgment and decree and thereafter the learned Judge determined the entitlement of the Plaintiff and came to the conclusion that the judgment debtor Appellants have deliberately not followed the judgment and decree of the Court. At this place, it may be mentioned that the Appellants, in their show cause, has clearly stated that they are ready to comply with the judgment and decree and as a matter of fact they have also promoted him. However, that promotion given to the Plaintiff, decree holder was not taken to be an appropriate promotion by the learned Single Judge and accordingly he came to the conclusion that the Appellants are trying their best to circumvent the lawful judgment and decree passed by the Trial Court. In my considered opinion, there is nothing on the record, to show that there was any bad motive or intentional disobedience on the part of the Appellant to circumvent the order of the Court. The operative part of the judgment and decree of the Trial Court which has been extracted above shows that the Plaintiff was held to have been entitled to his seniority from 1.5.1963 from the date of joining as Timekeeper on permanent basis and to get all the consequential benefits on promotion and emoluments. The Appellant Corporation granted him seniority from the retrospective date as timekeeper and also promoted him. There was controversy as to the particular rank which the Plaintiff was entitled to in the terms of judgment and decree. On that ground it cannot be said that this was a deliberate disobedience of the judgment and decree on the part of the Appellants. It may be said that there was a lack of due care and caution or the Appellants have misinterpreted the judgment and decree but on that ground, it cannot, be inferred that they are guilty of willful disobedience. It is to be stated here that even the judgment under appeal shows that much time and labour has been devoted to find out the fault of the Appellants. The materials on record have been considered in detail with a view to determine in the contempt proceeding the entitlement of promotional post of the decree holder in terms of the directions of the Court and then the Appellants have been punished. The very fact that the Court has to consider the material and determine the promotional entitlement of the Plaintiff is indicative of the fact that grant of promotion was not free from controversy. This apart, the Supreme Court disposed on the matter on 12.3.1991 and thereafter the Plaintiff proceeded with the execution and rushed to this Court for initiation of contempt proceeding on 9.7.1991. No sufficient time was granted to comply with the judgment and decree. Even in the judgment under appeal the learned Judge has observed in the para 11 of the judgment that the Plaintiff has filed the contempt proceeding in order to secure the proper execution of decree. Thus in my considered view, no case for punishment for contempt is made out in the case.

So far as Appellant No. 4 Nirmal Kumar Singh is concerned, it appears that in the affidavits filed by him in the contempt proceeding, he has only stated about the stand of the Corporation regarding the claim of the Plaintiff. It cannot be inferred from the same that he intentionally disobeyed the judgment and decree of the Court.

In the result, this appeal is allowed and the judgment of the learned Single Judge punishing the Appellants Nos. 2 to 4 is set aside. Before parting with this judgment, I may mention that the learned Single Judge in the judgment, has made some observation against the executing Court to the effect that he has sided with the Appellants. In my view, the said observation is not supported by the materials on record and as such the same should be ignored.

O.N. Asthana, J.

I agree.