Kajal Chakraborty vs Dibyen Mukherjee

Debasish Kar Gupta, J.—This is an application filed under the Contempt of Courts Act, 1971 for alleged violation of the order dated January 17, 2007 passed in the matter of Mr. Kajal Chakraborty v. State of West Bengal and Ors. (In re; W.P. No. 10452 (W) of 2006).

By the aforesaid judgment dated January 17, 2007 this Court directed the Respondent No. 2 to consider the grievances of the writ Petitioner in accordance with law treating the writ petition as his representation and by passing a reasoned order within a period of four weeks from the date of communication of this order with a further direction upon the Respondent No. 2,. namely the Director of School Education, West Bengal to communication this order within two weeks thereof the to the Petitioner.

It appears from the affidavit of compliance affirmed by the alleged contemnor, Sri Dibyen Mukherjee, Son of Sri Dilip Mukherjee, Director of School Education, West Bengal, that the office of the alleged contemnor received the above order on April 2, 2007 (paragraph 5 (ii) at page 4 to the above affidavit of compliance) that the alleged contemnor, by a communication issued under Memo No. 31-LP/C-535 Law Pry)/06 dated September 13, 2007 (Annexure R-l at page 10 to the above affidavit of compliance), asked the Chairman of the District Primary School Council, Sough 24 - Parganas to submit necessary documents by a Special Messenger. It is noteworthy that it was the first the (September 13, 2007) which was taken by the alleged contemnor after receiving of the above order on April 4, 2007 in his office. Thereafter, the Petitioner filed the instant application under the Contempt of Courts Act, 1971 (affirmed on July 30, 2007) for alleged willful disobedience of the order dated January 17, 2007 passed in W.P. No. 10452 (W) of 2006.

The Contempt Rule was issued against the alleged contemnor by this Court on September 8, 2008 fixing the returnable date on November 24, 2007. It appears from the contents of the affidavit-of-compliance that the alleged contemnor received the above contempt rule on November 19, 2008 (at paragraph 5 (iv) to the affidavit-of-compliance). The alleged contemnor sent his representative to the office of the District Primary School Council on November 20 and November 21, 2008 for obtaining the necessary papers to. arrive at a decision for compliance of the order dated January 17, 2007 passed in the writ application under reference. It is further stated in the affidavit-of-compliance that the alleged contemnor passed the order under his Memo No. IC-535L(P)/06 dated November 21, 2008 in compliance of the order dated January 17, 2007 passed in W.P. No. 10452(W) of 2006.

The matter was then taken up for hearing on December 3, 2008. After hearing the submissions made on behalf of the respective parties to this proceeding this matter was placed under the heading "For Orders" today, i.e. on December 5, 2008, with a direction for personal appearance of the alleged contemnor at the time of passing the order in the matter.

It is submitted on behalf of the alleged contemnor that on receipt of the order dated April 2, 2007, steps were taken by the alleged contemnor on September 13, 2007, though for the first time, to obtain all necessary documents from the Chairman, District Primary School Council. But the alleged contemnor was not in a position to comply with the order within the time specified in the order dated January 17, 2007 (within four weeks from the communications of the above order) due to the non-availability of the necessary papers from the District Primary School Council, South 24-Parganas. It is further submitted on behalf of the alleged contemnor that ultimately the alleged contemnor sent his representative to the office of the District Primary School Council on November 20 and November 21, 2008 for obtaining the necessary papers to comply with the order passed by this Court in the above writ application and the alleged contemnor complied with the order of this Court under reference by passing an order dated November 21, 2008. The attention of this Court is drawn towards the submission made in the affidavit-of-compliance under reference (paragraph 2 at page 2) that the alleged contemnor tenders his un-qualified apology for delay in compliance with the order under reference. It is further submitted on behalf of the alleged contemnor that the cause of delay was due to the situation beyond his control.

Having heard the learned Counsel appearing for the respective parties and after giving my anxious consideration to the facts and circumstances of this case as appeared from the materials-on-record, I find that admittedly the order dated January 17, 2007 passed in W.P. No. 10452 (W) of 2006 was served in the office of the alleged contemnor on April 2, 2007. It is not in dispute that the alleged contemnor took the first step in the matter on September 13, 2007, i.e. after more than five months to comply with the order passed by this Court. From the materials available on record it is noteworthy that the alleged contemnor received the Subpoana in connection with the instant contempt proceeding on November 19, 2008. It is not in dispute that only after receipt of this Subpoana the alleged contemnor took steps in the matter for the second time on November 20 and November 21, 2007 (paragraph 5 (vii) to the affidavit-of-compliance) by way of sending his messenger to the office of the Chairman, District Primary Council to collect the necessary papers. It is also not in dispute that the alleged contemnor passed the order dated November 21, 2008 (Annexure R-3 at page 12 to the affidavit-of-compliance) in order to comply with the order dated January 17, 2007 passed in the writ application under reference. Now, in order to arrive at the conclusion as to whether there is any willful disobedience on the basis of the facts and circumstances stated hereinabove. In doing so, this Court issued the Contempt Rule, allowed the alleged contemnor to file affidavit and gave hearing to the learned Counsel appearing for the alleged contemnor.

In view of the above facts and circumstances, this is not in dispute that in spite of having knowledge of the order dated January 17, 2007 as back as on April 2, 2007 to comply with the order within four weeks from the date of the above order, the alleged contemnor took steps in the matter for the first time after more than five months, i.e. on September 13, 2007. It is noteworthy that the alleged contemnor took steps in the matter for complying with the order of this Court dated January 17, 2007 long after expiry of the time specified in the order dated January 17, 2007 passed in the writ application under reference. No explanation is found from the materials-on-record to show that such delay was not willful. No submission was made to that effect. It is also noted that the second step in the matter was taken by the alleged contemnor only after receipt of the Subpoana in connection with the instant contempt proceeding. The dates are essential for arriving at a decision as to the nature of dis-obedience of the order passed by this Court. The alleged contemnor received the contempt rule on November 19, 2007 paragraph 5 (iii) of the affidavit-of-compliance). Sent his messenger to the office of the Chairman, District Primary School Council on November 20, and November 21, 2007 respectively to obtain the necessary papers. No explanation is available from the materials-on-record for sitting tight over the matter from April 2, 2007 to November 19, ,2007 except issuing a communication dated September 13, 2007 till receiving the Subpoana in connection with the instant contempt application. It is observed here that the first step was taken long after the expiry of the period specified for compliance of the order passed in the writ petition. In this regard, the principles of law as decided in the matter of Taradas Dutt and Another Vs. Administrative Officer of the Corporation of Calcutta and Another, are quoted below:

(5) We have no hesitation in coming to the conclusion that contempt was committed. We are quite prepared to accept the statement of these responsible officers that they did not deliberately flout or disobey the orders of the: Municipal Mag. That, however, is of little consequence. The fact remains that the orders were not carried out. If a party obtains an order from the Ct. for getting certain relief & the Ct. has passed an order which, if carried out, would give him instant relief, and because of somebody''s failure to carry out the Ct.''s orders he is unable to obtain relief for such a long period as almost four years that is a result which is bound to bring into discredit the administration of justice in the country. In our judgment that is very serious contempt of ct., in spite of the fact that the officers themselves had no intention to flout the orders of the Ct.

Now the responsibility of willful disobedience of the order is to be decided. It is the well settled principles of law that when an officer of the State who is responsible for implementation of the order fails to carry out the order of the Court he is guilty of contempt. In this regard, the settled principles of law as decided by the Hon''ble Supreme Court in the matter of Mohd. Aslam alias Bhure Vs. Union of India, are quoted below: -

The last question is whether the undertaking furnished by the Chief Minister was a personal undertaking or was on behalf of the State of U.P. It was both.

There is no immunity for any authority of Government, if a personal element is shown in the act of disobedience of the order of the Court, from the consequence of an order of the Court. Even in England where the maxim ''Grown can do no wrong'' has had its influence, a distinction is made between the Crown as such and the Executive.

In a recent pronouncement of far-reaching impact the House of Lords in ''In re: M. v. Home Office, (1994) 1 AC 377, observed (as. per Lord Templeman):

My Lords, Parliament makes the law, the executive carry the law into effect and judiciary enforce the law. The expression "the Crown" has two meanings; namely the monarch and the executive. In the 17th century Parliament established its supremacy over the Crown as monarch, over the executive and over the judiciary. Parliamentary supremacy over the Crown as monarch stems from the fact that the monarch must accept the advice of a Prime Minister who is supported by a majority of Parliament. Parliamentary supremacy over the Crown as executive stems from the fact that Parliament maintains in office the Prime Minister who appoints the ministers in charge of the executive. Parliamentary supremacy over the judiciary is only exercisable by statute. The judiciaries enforce the law against individuals, against institutions and against the executive. The Judges cannot enforce the law against the Crown as monarch because the Crown as monarch can do no wrong but Judges enforce the law against the Crown as executive and against the individuals who from time to time represent the Crown. A litigant complaining of a breach of the law by the executive can sue the Crown as executive bringing his action against the minister who is responsible for the department of State involved, in the present case the Secretary of State for Home Affairs. To enforce the law the courts have power to grant remedies including injunctions against a minister in his official capacity. If the Minister has personally broken the law, the litigant can sue the Minister, in this case Mr. Kenneth Baker, in his. personal capacity. For the purpose of enforcing the law against all persons and institutions, including Ministers in their official capacity and in their personal capacity, the courts are armed with coercive powers exercisable in proceeding for contempt of Court.

My Lords, the argument that there is no power to enforce the law by injunction or contempt proceedings against a Minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War. For the reasons given by my noble and learned friend, Lord Woolf, and on principle, I am. satisfied that injunctions and contempt proceedings may be brought against the Minister in his official capacity and that in the present case the Home Office for which the Secretary of State was responsible was in contempt.

However, in that case it was found as a matter of fact that there was no personal element involved in the violation at the instance of the Home Secretary, Mr. Baker. Therefore, Lord Templeman observed:

I am also satisfied that Mr. Baker was throughout acting in his official capacity, on advice which he was entitled to accept and under a mistaken view as to the law. In these circumstances I do not consider that Mr. Baker personally was guilty of contempt.

This was the first time that a Minister of the Crown had been found to be in contempt by a Court. The finding of contempt was made for not complying with an injunction granted by Garland, J. ordering M., who had made a claim for asylum, which was rejected by the Home Office, to be returned to this country.

Nolan, L. J., at P. 311, considered that the fact that proceedings for contempt are "essentially personal and punitive" meant that it was not open to a Court, as a matter of law, to make a finding of contempt against the Home Office or the Home Secretary. While contempt proceedings usually have these characteristics and contempt proceedings against a Government department or a Minister in an official capacity would not be either personal or punitive (it would clearly not be appropriate to fine of sequestrate the assets of the Crown or a Government department or an officer of the Crown acting in his official capacity), this does not mean that a finding of contempt against a Government department or Minister would be pointless. The very fact of making such a finding would vindicate the requirements of justice. In addition an order for costs could be made to underline the significance of contempt. A purpose of the courts powers to make findings of contempt is to ensure that the orders of the Court are obeyed. This Jurisdiction is required that the orders of the Court are obeyed. This jurisdiction is required to be co-extensive with the Courts jurisdiction to make the orders which need the protection which the jurisdiction to make findings of contempt provides.

Normally it will be more appropriate to make the order against the office which a Minister holds where the order which has been breached has been made against that office since members of the department concerned will almost certainly be involved and investigation as to the part played by individuals is likely to be at least extremely difficult, if not impossible, unless privilege is waived (as commendably happened in this case). In addition the object of the exercise is not so much to punish an individual as to vindicate the rule of law by a finding of contempt. This can be achieved equally by a declaratory finding of the Court as to the contempt against the Minister as representing the department. By making the finding against the Minister in his official capacity the Court will be indicating that it is the department for which the Minister is responsible which has been guilty of contempt. The minister himself may or may not have been personally guilty of contempt. The position so far as he is personally concerned would be the equivalent of that which needs to exist for the Court to give relief against the Minister in proceedings for judicial review.

To draw a distinction between his two personalities would be unduly technical. While he was Home Secretary the order was one binding upon him personally and one for the compliance with which he as the head of the department was personally responsible.

In the The State of Bihar Vs. Rani Sonabati Kumari, , this Court approved the following view of Chakravartti, C.J. in Tarafatullah Mandal and Others Vs. S.N. Maitra and Others, :

I do not say that in fit cases a writ for contempt may not be asked for against a corporation itself, or against a Government. In what form, in such a case, any penal order, if considered necessary, is to be passed and how it is to be enforced are different matters which do not call for decision in this case. In England, there is a specific rule providing for sequestration of the corporate property of the party concerned, where such party is a corporation. I am not aware of any similar rule obtaining in this country, but I do not consider it impossible that in a fit case a fine may be imposed and it may be realized by methods analogous to sequestration which would be a distress warrant directed against the properties of the Government or the Corporation.

The State Government is, therefore, liable in contempt. A Minister or Officer of Government is also either in his official capacity or if there is a personal element contributing to contempt, in his personal capacity, liable in contempt."

On the basis of the fact that direction was upon the Respondent No. 2, the contemnor and willful disobedience is on his part having a personal element contributing to contempt. I have no hesitation to apply the above settled principles of law to hold the alleged contemnor guilty of contempt of Court.

Now comes the question as to whether the Court will accept the accept the apology tendered by the contemnor by way of affidavit-of-compliance (paragraph 2 at page 2 of the affidavit-of-compliance) in terms of the proviso to Sub-section (1) of Section 12 of the Contempt of Courts Act, 1971? In doing so, I have to consider whether the apology is tendered without any justification? Whether the apology is tendered at a later stage? Whether by tendering the apology at a later stage, the gravity of the offence committed by the contemnor is minimized or wholly absolved?

In this regard the relevant portions of the decision in the matter of Bakubhai and Ambalal Ltd. Vs. Bengal Corporation Private Ltd., are quoted below:

Now, to submit an apology as an apologia to the contemner''s other contentions is to exhibit a desire to escape punishment without really being contrite. Courts should not accept such qualified apologies. It is also not a matter of course that a Judge can be expected to accept any apology. Apology cannot be a weapon of defence forged always to purge the guilty. It is intended to be evidence of real contribution, the manly consciousness of a wrong done, of an injury inflicted and the earnest desire to make such reparation as lies in the wrong-doer''s power. Only then is it of any avail in a Court of justice. But before it can have that effect, it should be tendered at the earliest possible stage, not the latest. Even if wisdom dawns only at a later stage, the apology should be tendered unreservedly and unconditionally, before the Judge has indicated the trend of his mind. Unless that is done, not only is the tendered apology robbed of all grace but it ceases to be an apology. It ceases to be the full, frank and manly confession of a wrong done, which it is intended to be.

I consider the apology tendered by the contemner as beyeft of its full grace, firstly, because it was offered coupled with a justification and, secondly, because it was offered at a late stage. The apology certainly has this virtue that it minimizes the gravity of the offence committed by the contemner, but it does not wholly absolve him of the guilt. I therefore, propose that the contemner should not be let off unpunished but should be punished with a fine amounting to Rs. 200 (Rupees Two hundred only).

On the basis of the admitted facts and circumstances of the case and applying the above settled principles of law, I find that the apology was not unqualified but coupled with justifications (paragraph 5 with its subparagraphs from page 3 to 6 of the affidavit-of-compliance). I also find that after advancing argument at length and after dispensing with personal appearance of the contemnor today, the attention of this Court is drawn towards the apology tendered by way of swearing affidavit of compliance and not before this Court expressed the trend of the mind. Therefore, it is at later stage. Now, in the facts and circumstances as discussed hereinabove, I find that in the instant case the apology has the virtue that it minimizes the gravity of the offence committed by the contemnor, but it does not wholly absolve him of the guilt. Therefore, I am not accepting the unqualified apology of the contemnor.

This brings me to the question of sentence. Considering the fact that this is the first instance of holding the contemnor guilty of the contempt of Court as also considering the responsibility attached to the office of the contemnor, this Court records that a sentence of fine shall be good enough to vindicate and meet the ends of justice. Accordingly, the contemnor is directed to pay a find of Rs. 2,000/- to the Petitioner within December 24, 2008. Failing which the contemnor shall suffer simple imprisonment for two weeks immediately on expiry of December 24, 2008. The Rule NISI is made absolute.

Let there be a cost of Rs. 5,100/- be paid by the contemnor to the Petitioner within the aforesaid period of December 24, 2008.

Let Xeroxed plain copy of this order, duly countersigned by the Assistant Registrar (Court), be handed over to the learned Counsel appearing for the alleged contemnor in course of December 8, 2008.

Later: A prayer is made by the learned Counsel appearing for the contemnor for stay of operation of this order. Such prayer is rejected.