N. Rajagopalan vs Juanki Ballabh and Another

N.K. Jain, C.J.—This contempt petition has been filed by the complainant for non-compliance with the order dated 30-3-2001 in Writ Petition Nos. 12960 to 12970 of 2001 and W.P. Nos. 12887 to 12903 of 2001 passed by this Court.

2, It is stated that despite direction vide order dated 30-3-2001. that the Bank should have applied its mind and found out whether the Scheme can be made applicable to the applicants who have completed 30 years of service, and till such time the Bank should not permit them to retire and release the amount to ineligible persons. But, the Bank has passed two orders, one on 30-3-2001 and other on 31-3-2001, and thus committed contempt of Court, hence proper action should be taken with a further direction for not complying the interim order dated 30-3-2001.

This contempt petition was filed on 16-4-2001. A show-cause notice was issued on 20-4-2001. In response to the notice, statement of objection was filed by the first respondent-Bank denying the allegation as alleged. It is stated that respondent has the highest regard and full respect for the orders of the Court. The learned Counsel for the Bank, Sri Sundarswamy Ramdas submits that the Bank has filed writ appeal against the interim order which is admitted and pending appeal. He also submits that the contempt case has been filed without verifying the fact and it is nothing but to harass the Bank authorities. There is no willful disobedience in the order made and the contempt case is liable to be dismissed. He further submits that apart the order has already been complied with.

The learned Counsel for the complainant, Sri P.S. Rajagopal submits in reply to the writ appeal filed by the Bank, that the appellant has stated that the affidavit filed by Sri S.R. Shetty is incorrect and he himself has stated that he was present in the meeting at Bangalore but actually he was at Hubli. The learned Counsel submits that petitioner-complainant has moved a Criminal Contempt No. 38 of 2001 and till that contempt is finally heard, this case should not be heard. Learned Counsel relied on the decision of Supreme Court in Dr. H. Phunindre Singh and Others Vs. K.K. Sethi and Another, , wherein the order of the learned Single Judge was challenged before the Division Bench but no stay was granted. Their Lordships observed that contempt petition should have been disposed off on merit instead of adjourning the case till the disposal of the appeal.

On the other hand, the learned Counsel for the Bank submits that when the writ appeal is pending, the appeal should be decided first and further once the order impugned in contempt has been complied, the question of contempt does not arise and it is not necessary to consider the issue of contempt. He relied on the decision of the Supreme Court in Lalith Mathur v. L. Maheswara Rao, wherein, in a case, the High Court issued a direction for consideration of the respondent''s representation. Their Lordships observed that the direction was carried out by the State and thereafter rejected the representation on merits. Instead of challenging the order in fresh writ petition, the petitioner took recourse to contempt petition which did not lie as order had already been complied with by the State Government which had considered the representation and rejected it on merit and dismissed the contempt petition. Counsel also submits that the criminal contempt has been filed only to delay the hearing of the appeal, though notice has not been issued. Therefore, the writ appeal against the interim order should be heard first.

We have heard the learned Counsels for the parties and perused the material on record and also perused the case-laws cited above.

The question before us is whether the Bank authorities have committed contempt of order dated 30-3-2001, and what will be the effect of the appeal pending against the interim order and so also whether the appeal should be heard only after deciding the criminal contempt.

As the facts culled out, the petitioner and some officers working in the respondent-Bank are below the age of 55 years as on the cut-off date i.e., 31-12-2000 and were not eligible to take voluntary retirement as per the Scheme of the year 2000, The same was challenged as unconstitutional. The petitioners also made a prayer to the respondents restraining them to give effect of the decision vide Annexure-G, dated 22-2-2001 and on consideration the learned Single Judge passed the above order.

On considering these issues, first we consider whether the Bank has committed any contempt of Court. As a matter of fact learned Counsel for petitioner-complainant has not made any averment in the contempt petition as to when the order dated 30-3-2001 of this Court was served on the authorities concerned. The argument that the interim order was passed in presence of the Counsel of the Bank and it is also submitted that the Law Officer of the Bank was also present.

No doubt, for holding liable in contempt what is necessary is to satisfy the conscience of the Court whether its order has been complied with by the party or not and whether the disobedience is willful or deliberate. It is also well-settled that the applicant is only to place the facts and after filing of the contempt, the matter lies not between the parties, but between the Court and the person who did not comply with the order and the contemnor ought not to be permitted to escape liability for his acts of contempt and this power is held to punish for contempt for the maintenance of effective legal system. But, at the same time, in our considered opinion, mere passing of an order with certain direction in the presence of respective Counsels is not sufficient to hold one guilty for willful disobedience for non-compliance of the direction of the Court. It is pertinent to note that the supply of the copy of the order to comply with is necessary and must and any averment that the attention of a concerned person who is to comply with the direction has been drawn should also be pleaded in addition to pleading that he has deliberately disobeyed the order of the Court. So in the absence of such pleading no case of contempt can be said to be made out for issuance of notice.

In the instant case, nothing has been placed on record when the copy was given to the authority concerned who was to comply with the order. Mere presence of the Advocate and the Law Officer is not sufficient as they are not the proper authority to comply with the order, as only the`B.I, represented through the Chairman was the party in the writ petition. In the contempt petition respondent 2 has filed counter stating that he was not a party and he has no intention to disobey the order of the Court and has also tendered unconditional apology. Respondent 1 has also filed a detailed statement of objection stating that compliance of the order was made in bona fide manner and in good faith. That apart a copy of the interim order filed with the contempt reveals that the copy application was filed on 31-3-2001 and the order copy was received only on 11-4-2001. Be that as it may be, in our considered view it is not necessary to consider the issue regarding service of order impugned, at this stage, when as stated by the learned Counsel for the Bank, that Bank has complied with the order. In view of this, when once the order has been complied with, it cannot be held that there is willful disobedience of the order of this Court. No case of contempt is made out. The contempt notice is discharged.

So far as the other argument that the writ appeal should be heard, the learned Counsel for the Rank submits that the learned Single Judge lias erred in granting this interim prayer which was not sought for in the writ itself. As the order has already been complied with by the Bank as stated, under the circumstances, in our opinion, it is not necessary to go into this issue. Otherwise also, it is necessary to observe that generally this Court is slow in entertaining the writ appeal against interim order unless special circumstances warranting interference with the order, as the controversy is not finally decided and the matter is still pending adjudication before the learned Single Judge. In the case on hand, as the order has already been complied with by the Bank as stated, no indulgence can be granted against the interlocutory order in the writ appeal.

So far as the argument that the criminal contempt is pending and it should be heard first is also not tenable and the case relied by the petitioner-complainant is not helpful in the facts of the given case once contempt petition and in writ appeal no order is necessary as discussed. It is not necessary to go into the merits, as ultimately the case is to be decided by the learned Single Judge. Under the circumstances, no interference is called for. However, we deem it proper that the parties may agitate their case before the learned Single Judge who will decide the writ petition itself at an early date. The learned Single Judge is also free to consider the aspect of incorrect statement as per allegation in counter, if necessary, and can decide the issue in accordance with law.

As discussed above, the contempt petition is dismissed. Notice stands discharged. No interference is required in the writ appeals and they are disposed off accordingly. The parties are at liberty to approach the learned Single Judge for early hearing, and as observed, it is ex expected that the learned Single Judge will expedite the matter in accordance with law.