Rajesh Pradhan vs Satyendra Kumar, Sena Nayak

Shashi Kant Gupta, J.—This contempt petition has been filed alleging wilful and deliberate violation of the judgment and order of this Court dated 21.3.2006 rendered in writ petition No. 40165 of 1999.

Before proceeding further, to deal with the matter, it would be appropriate to take note of few orders passed by this Court in this contempt application to indicate that several opportunities were given to the opposite parties since 2006 to comply with the order passed by the writ court. The relevant portions of the orders dated 21.12.2006, 2.2.2007, 19.2.2010, 7.7.2010 and 18.8.2010 are quoted as under:

21.12.2006

The special appeal filed against the judgment has already been dismissed on 29.8.2006. The Court is unable to comprehend as to what instructions are now further required in the matter, when the applicant has himself made a statement before this Court that he will not claim any arrears of salary for the period he has not worked. In the opinion of the Court, the only action, which ought to have been taken by the Commandant, was to receive the undertaking on behalf of the applicant and thereafter proceed to comply with the judgment dated 21st March, 2006 forthwith.

Having failed to do so, the opposite party prima facie has committed contempt of the orders of this Court dated 21st March, 2006 as affirmed in special appeal vide order dated 29.8.2006.

In view of the aforesaid facts, let the opposite party either proceed to comply with the orders of this Court forthwith or be personally present before this Court on the next date fixed for framing charges.

2.2.2007

Heard learned Counsel for the applicant and perused the Affidavit of Satyendra Kumar.

The order dated 17.1.2007 is explicit and clear. The Commandant had no business to over reach the order of this Court. The action of the Commandant is nothing short of contempt.

Put up on Wednesday next for framing of charges.

19.2.2010

Heard Sri B.N. Rai, learned Counsel for the applicant and Sri Nikhil Kumar, Advocate on behalf of the opposite party.

The Writ Petition of the applicant, challenging the dismissal order was allowed vide judgment and order dated 21.3.2006. The operative portion of the judgment is quoted hereunder-

The counsel for the Petitioner has made a statement upon instructions from the Petitioner that in case the Petitioner is reinstated in service, he will not claim any arrears of salary for the period he has not worked. In case, the Petitioner submits an undertaking before the authority concerned, appropriate orders for reinstatement of the Petitioner shall be passed within a period of six weeks from the date of furnishing a certified copy of this judgment alongwith the undertaking by the Petitioner before the disciplinary authority. However, pay of the Petitioner shall be protected and he shall be treated in continuous service, but will not be paid any arrears of salary. Further the period of absence will be treated to be leave without pay. In this view of the matter, the matter is not being sent back for awarding lesser punishment.

Writ petition is accordingly allowed. The impugned orders awarding punishment of dismissal and the orders confirming the same are set aside. No order as to costs.

The applicant in compliance to the directions contained in the judgment of the Writ Court tendered his undertaking in the form of an affidavit on 3.5.2006. However he was not allowed to join and the applicant was compelled to file this Contempt Application. Ultimately after issue of notice the applicant was allowed to join on 16.1.2007 and since then he has been getting his salary. The dispute is only with regard to the salary from 3.5.2006 till 15.1.2007, as according to the applicant once he had tendered an undertaking, the joining ought to have been allowed forthwith.

On the other hand the submission on behalf of the opposite party is that the applicant in his affidavit of 3.5.2006 claimed salary from 21.3.2006 i.e. from the date of judgment and not from the date of the undertaking. According to Sri Nikhil Kumar, learned Counsel for the opposite party the applicant was advised to file a revised undertaking but he did not file any revised undertaking and it is for this reason that the delay was caused in allowing him the joining.

Sri B.N. Rai, learned Counsel for the applicant has stated that the applicant is willing to claim salary only from the date of tendering the undertaking and not from the date of judgment and shall file a revised undertaking before the opposite party.

It is expected that within a period of six weeks thereafter from the date such revised undertaking is filed the opposite party shall ensure payment of salary to the applicant from 3.5.2006 till the date of joining in January, 2007.

List this contempt application after two months.

7.7.2010

Sri B.N. Rai, learned Counsel for the applicant has filed a supplementary affidavit alongwith an application for summoning the opposite party and awarding punishment for deliberate contempt. Along with the said affidavit are annexed show cause notice and a charge sheet issued to the applicant on the ground that in the year 2007 the applicant had filed a Rejoinder Affidavit in the contempt proceedings, which allegedly tarnished the image of the State and the Department. Learned Counsel for the applicant has already not pressed the said rejoinder affidavit as recorded in the order dated 08.02.2007. Apparently the opposite party has targetted the applicant. There is already an order for personal appearance and framing of charges for non compliance of the directions of the writ court against the opposite party. Further in the order dated 19.2.2010 two months time was granted to the opposite party to ensure full compliance in the light of the observations contained in the said order. Instead of ensuring compliance and filing of affidavit of full compliance the opposite party has evolved a new technique for further harassment of the applicant.

Put up this case in the additional cause list on Friday, 9.7.2010. The opposite party or whoever is posted as Commandant, 42 Battalion PAC, Naini shall remain present before this Court.

18.8.2010

Learned Counsel for the applicant stated that a lame excuse has been made on behalf of the opposite party which is only delaying tactics.

Considering the facts and circumstances of the case, the exemption application is hereby rejected.

Let bailable warrant be issued against the opposite party fixing 6.9.2010. On that date, opposite party shall remain present before the Court.

Office is directed to take necessary steps in the matter.

Affidavit of compliance filed today on behalf of opposite party is taken on the record.

Learned Counsel for the applicant has stated that till date no compliance has been made. He prays for and is allowed ten days time for filing reply to the said affidavit.

6.9.2010

Today a supplementary rejoinder affidavit has been filed on behalf of the applicant which is taken on record.

Pursuant to the order dated 18.8.2010 the opposite party is present in the court and has assured to this Court that the arrear of salary between 3.5.2006 to January, 2007 shall be paid positively within a period of two weeks from today.

Let the matter be listed on 24.9.2010.

In case, the aforesaid amount is not paid on or before the date fixed, the Court would have no option but to frame charges against the opposite party.

However, it is made clear that if the oder passed today is complied with, in that event, the opposite party need not to appear on the date fixed.

This Court by order dated 24.9.2010 framed the following charges against the opposite party:

Charge No. 1: That you, Mr. Satyendra Kumar, Sena Nayak, 42, Battalian, P.A.C., Naini, Allahabad, show cause why you should not be tried and punished for wilful and deliberate violation of the judgment and order of this Court dated 21.3.2006 passed in Civil Misc. Writ Petition No. 40165 of 1999.

Charge No. 2: That you are further charged for committing wilful breach of an undertaking given in the present contempt proceedings on 6.9.2010.

Your reply should be filed on or before 15.10.2010 after serving a copy of that on the learned Counsel for the applicant, who may file a reply thereto before the next date fixed. It is clarified that any observation or finding made or recorded herein above are only, prima facie, in nature and are subject to the reply which may be filed in response to the charges framed.

By the aforementioned order, the charges, as indicated herein above, were framed against the opposite party and was granted time to file reply to the said charges on or before 15.10.2010 by serving a copy thereof upon the learned Counsel for the applicant and the matter was posted for today i.e. 22.10.2010 but till date neither any reply has been filed nor has any explanation been given for not filing the said reply within the stipulated period. This conduct on the part of the opposite party itself reflects that he does not want to say any thing in the matter and has accepted the charges framed against him. The only request made by Mr., Ajai Kumar Sharma, who has been engaged by the opposite party as his new counsel at this stage, was for adjournment of the case. However, neither any application nor affidavit to this effect was filed. Besides this, the Contemnor has not shown any sense of remorse or repentance about his conduct.

At this juncture, reference may be made to paras No. 4 & 5 of the affidavit, filed by the opposite party on 24.9.2010, (before the framing of the charges) stating therein that in compliance of the order of this Court, the opposite party (contemner), by letters dated 6.9.2010 and 20.9.2010, requested the concerned authorities of his department for according necessary permission and approval in respect of payment of the entire salary due to the applicant, but because no such permission was granted, he could not comply with the order of this Court. The aforementioned plea taken by the opposite party did not find favour with this Court and was rejected by order dated 24.9.2010, inter alia, with the following observation:

It is to be noted that this contempt application was filed in the year 2006 and in spite of several opportunities having been afforded to the opposite party, besides the undertaking given by him on 6.9.2010 for payment of arrears of salary within two weeks, the payment has not yet been made. The opposite party, in order to avoid compliance and to delay the contempt proceedings, after nearly four years, at the fag end of the contempt proceedings, has chosen to file an affidavit enclosing therewith a copy of the letter dated 14.9.2010, to show his bonafide that he has been making efforts and correspondence with the concerned authorities for compliance of the order of this Court. It is nothing but an eye wash and an attempt to overreach the order of this Court. This apart, the contention of the applicant also can not be overlooked or ignored that he is being victimised and harassed by the contemnor, particularly after the order passed by this Court on 6.9.2010.

From perusal of the record it transpires that the matter is pending since 2006 but the contemner opposite party is making all efforts to avoid compliance of the order of this Court and putting forward one or the other ploy to circumvent and overreach the orders passed by this Court and despite several orders of this Court and the assurance given by the opposite party on 6.9.2010 to the effect that the arrears of salary from 3.5.2006 to January, 2007 shall be paid positively within a period of two weeks from that date, not even a single penny towards arrears of salary, which is due from 3.5.2006 till 15.1.2007, has been paid to the applicant and the opposite party is bent upon victimising, harassing and pressurising the applicant on account of the pendency of the present contempt application. This fact also stands substantiated from the conduct of the opposite party who, after passing of the order dated 6.9.2010 on the contempt application, instead of ensuring compliance of the order, preferred to issue two charge sheets dated 14.9.2010 against the applicant merely over a very trifle issue that the applicant allegedly submitted two T.A. Bills claiming Rs. 10/- and Rs. 60/- as excess amount. This is nothing but only a device to escape from the rigor of law and to cause further harassment to the applicant.

Thus, it is indeed very unfortunate and regrettable that the contemnor instead of ensuring compliance of the order of this Court has chosen to take punitive action against the applicant although the writ court''s order was passed on 20.3.2006 and the applicant was reinstated in January, 2007 but his arrears of salary for the period between 3.5.2006 and January, 2007 in terms of the order dated 20.3.2006 have not yet been paid despite several orders of this Court, as referred to herein above, on one pretext or the other, making the applicant to run from pillar to post for payment of his legal dues.

The defiant attitude of the opposite parties writ large on the face of the record. Such conduct of the opposite party, who is an Officer of a disciplined force, must be deprecated. It is of paramount public interest that the people, after obtaining an order of the Court, should not feel helpless or without any remedy when such orders are flouted. The rule of law is the foundation of the democratic society. The Judiciary is the guardian of the rule of law, the third pillar, the central pillar of democracy. If we want judiciary to function effectively and impartially then its dignity and authority must be respected and protected. If the orders of the court are disobeyed with impunity by those, who owe an obligation to the society to preserve the rule of law, the whole administration of justice would be brought into disrepute and rule of law will disappear.

In view of what has been discussed, herein above, and also considering the facts and circumstances of the case, this Court is of the considered opinion that the opposite party has wilfully and deliberately disobeyed the judgment and order of this Court dated 21.3. 2006 passed in Civil Misc. Writ Petition No. 40165 of 1999 and committed breach of an undertaking given to the court on 6.9.2010 and is liable to be punished under the Contempt of Courts Act, 1971.

Accordingly, the opposite party Mr. Satyendra Kumar Sena Nayak 42-B, P.A.C. Naini, Allahabad is sentenced to simple imprisonment for a period of three months. The said sentence shall, however, remain in abeyance for a period of two weeks from today to enable him to file an appeal u/s 19 of the Contempt of Courts Act, 1971, if he is so advised. However, in the event the appellate court does not suspend the execution of the punishment, as indicated herein above, the Chief Judicial Magistrate, Allahabad shall immediately take the opposite party into custody for serving the sentence.

With the aforesaid directions, this contempt application succeeds and is allowed.

Let a copy of this judgment be placed before the Registrar General of this Court and a copy of it may also be sent to the Chief Judicial Magistrate, Allahabad for compliance.