Sachindra Nath Panja and Others vs N.L. Basak, Principal Secretary, Govt. of West Bengal and Others

D.K. Seth, J.—On the basis of the observation made in the order dated 4th August, 2000 in appeal from original order passed in APO No. 372 of 1996, this contempt application has been filed. It is contended on behalf of the applicant that the Court had finally decided the entitlement of the petitioner at page 12 (page 50 of the application) of the judgment. Therefore, the authority had deliberately violated the direction contained in the said order while considering the petitioner''s case as it appears from the order dated 7th May, 2001, which is at page 29 of the supplementary affidavit filed on 24th May, 2001. Mr. H. K. Mitra, learned Counsel for the applicant, pointed out that there was nothing to be decided by the Authority on the face of the observation made in the order itself. Therefore, the order has been passed deliberately for the purpose of avoiding the effect of the order of which contempt is alleged, Mr. Mitra relied on the decisions in Dr. Subhash Chandra Pratihar Vs. Mrs. Leena Chakraborty and Others, National Textile Corporation (West Bengal, Assam, Bihar and Orissa) Ltd. v. Shri S.K. Agnihotri, (1987) CRI LJ 463 and Jiban Kumar Banerjee v. State of West Bengal, (1993) 2 C HN 282 in order to contend that the avoidance of the order or omission to note a particular observation in the order amounts to contempt.

The learned Counsel for the alleged contemners-respondents, on the other hand, pointed out that there was no contempt at all, since the impugned order dated 7th May, 2001 had taken care of the provisions as applicable in the petitioners'' case and there was no final determination of the entitlement of the petitioners in the order dated 4th August, 2000.

In order to appreciate the respective contentions, we may refer to the relevant portion of the order dated 4th August, 2000 viz :

"It is not a case where for the purpose of giving effect to doctrine of "equal pay for equal work" the differences pointed out by the learned Counsel are required to be gone into. The State of West Bengal has passed an order in favour of the petitioners. The authorities of the C.M.D.A. cannot go there against. As noticed hereinbefore. Clause (6) of the Memorandum, which is applicable to the employees of the C.M.D.A. is a replica of Clause (4) of the benefits granted to the Schedule ''A'' Stenographers of the State of West Bengal. It is also correct to contend that by claiming the third stage increment, the petitioners have sought to overcome the difficulties as regards the promotion policy adopted by C.M.D.A. The fact that they have been promoted as Grade ''A'' Stenographers is not in dispute. They could only be so promoted, after they satisfied the requirement of promotion policy, namely, working at least for a period of four years each in Grade ''C'' and Grade ''B'' respectively. Once they had been promoted to Grade ''A and had been granted two increments, there does not appear to be any person why the third stage of increment should be denied to them."

After the above observation the Court was pleased to direct:

"We, therefore, allow this Appeal and set aside the order passed by the learned trial Judge. We direct the concerned authorities to consider the matter afresh in the light of the observations made hereinbefore and in the light of the recommendation of the Pay Commission and/or other materials which will be brought on record by the parties. An opportunity of hearing may also be granted to the appellants before arriving at a finding."

It appears that the Court was pleased to record certain observations to the effect that the State of West Bengal had passed an order in favour of the petitioners and then after having discussed certain other matters, it was lastly observed that once the petitioners were promoted to Grade ''A'' and had been granted two increments, there could not appear to be any reason why the third stage of increment should be denied to them. But the fact remains that after this observation, it was also observed that "such benefits had been granted only for a limited period. After the Pay Revision Committee submitted its report, both the department and the concerned employees would be bound thereby. The reports of the Pay Commission have been placed before us. It appears that whereas separate ROPA Rules were prepared in respect of the employees of C.M.D.A. in the year 1980, the matter relating to fixation of Scale of Pay was referred to the Pay Commission for the next terms. Pay Commission submitted their reports in 1986. After 1980, three reports have been submitted by the said Commission. All the circular issued in the State Government, therefore, would not be applicable only if the same were inconsistent with and contradictory to the recommendations of the Pay Revision Committee."

After this observation, the Court was pleased to refer to the decision in Administrator, U.T., Lakshadeep v. Kunnashade Muthukoya, 2000, Lab IC 1528 of a Division Bench of the Kerala High Court and quoted the observation made therein. In the said observation, it was noted that "the Pay Commission goes into the problem at great depth and happens to have a full picture before it. Therefore, the Pay Commission is the proper authority to decide upon the issue". After this observation the ultimate order was passed that the matter should be considered by the authorities afresh in the light of the observations made in the order and in the light of the recommendations of the Pay Commission and/or any other materials which would be brought on record by the parties.

Therefore, the finding that there was no reason to deny the third stage of increment to the petitioners is subject to the observations made thereafter which includes consideration of the report of the Pay Commission. The finding that the State Government had passed an order in favour of the petitioners was also subject to the observation that after the Pay Commission Report, such order would not be applicable, if it was inconsistent and contradictory.

In the order Impugned, it is pointed out that the petitioners were not entitled to the benefits in view of the Pay Commission Report and also in view of all these state of affairs that had or might have arisen. Mr. Panja had also submitted that the order of the State Government referred to in the judgment was also the subject matter of review, which was brought to the notice of the Appeal Court and the Appeal Court was pleased to permit the applicants to challenge the said order on review which travelled up to the Supreme Court. Mr. Panja had also submitted that ultimately the review order had since been accepted by the State Government, which is also a subject-matter of challenge in another proceeding.

Thus, it appears that the observation of the Court in the judgment with regard to the finding that an order was passed by the State Government in favour of the petitioners and that there did not appear any reason as to why the third stage of increment should be denied to the petitioners does not seem to be a conclusive finding but a tentative observation which is subject to the observation, namely, that it would be subject to the recommendations of the Pay Commission as well as other materials which might be brought on record.

Thus, the petitioners might have a very good case, but still then that cannot be a matter of decision in contempt proceeding. If the order impugned is not acceptable to the petitioners or if there is any infirmity, in that event, it can give rise to a fresh cause of action, but it cannot be a cause of action for contempt since we do not find that there is any deliberate intention to avoid this Court''s order. On the other hand, justification had been given as to why the petitioners were not entitled to the benefit which is the subject-matter of deliberation in an appropriate proceeding and as such cannot be decided within the scope of the contempt proceeding, even though the contempt proceeding is in the nature of execution and that some other orders could be passed, though no punishment could be awarded as against the alleged contemnors.

Section 2(b) of the Contempt of Courts Act, 1971 defining contempt, uses the expression "wilful disobedience". Mere disobedience of an order will not be contumacious. It is essential that it must be wilful. The wllfulness is a question, which is to be appreciated by the Court objectively, It can be deciphered from the conduct of the parties and the context in which it has been done. In case of an implementation of an order, it is to be found out from the context of the order of which contempt is alleged as to whether the violation is patent or such that it will lead the Court to presume wilful-ness behind the action or whether the order of the Court has been wrongly interpreted or not. Inasmuch as it is not open to the contemnors to give a wrong interpretation to the order which is alleged to be in breach and then justify their conduct on the basis of such wrong interpretation ( S.K. Samsudin Vs. Ravikant and Another, At the same time, if the Court directs a particular course of action to be taken but if the essential circumstances for adopting such course of action are not fulfilled, then, the adoption of another course of action, though may not be specifically directed by the Court will not amount to violation of the order of the Court. Inasmuch as in order to implement the order, if on facts it appears that certain matters are/were to be taken into consideration on the basis of the order passed and that the Court did not preclude such consideration then it cannot be held to be contumacious (Rajinder Singh v. N.C. Wadhwa (1998) LR 542 (P & H)).

This wilfulness in the disobedience is a marked departure from the 1926 Act and the 1952 Act, which did not define Contempt of Court. The Sanyal Committee recommendations also did not contain any definition. The report of the Joint Select Committee of Parliament on the Bill suggested that a suitable definition should be engrafted. The existing statutory definition was evolved by the Joint Select Committee defining civil contempt and criminal contempt. This is where the Indian law of contempt differs from the English law and the US law as we find in the words of Warrington, J. in Stancombe v. Trowbridge UDC (1910) 2 Ch 190 , viz : "it is no answer to say that the act was not contumacious in the sense that, in doing it, there was no direct intention to disobey the order" (Knight v. Clifton (1971) 2 All ER 378). Similarly, in the words of Douglas, J. in McComb v. Jacksonville Paper Co (1948) 336 US 187 : 93 L ed 599 , viz : "The absence of wilfulness does not relieve from civil contempt .......... Since the purpose is remedial, it matters not with what intent the defendant did the prohibited act........An act does not cease to be in violation of a law and of a decree merely because it may have been done innocently. The force and vitality of judicial decrees derive from more robust sanctions ............"

The Supreme Court has repeatedly pointed out that mere disobedience is not enough in order to commit a person, it must be shown and found that the disobedience was wilful ( Jiwani Kumari Parekh Vs. Satyabrata Chakravorty, Managing Director and Chief Executive of the West Bengal Handicraft Development Corpn. Ltd., ); Ashok Kumar Singh and others Vs. State of Bihar and others, ; Manish Gupta and others Vs. Gurudas Roy, . In the last cited case, the fixation of Pay was made in accordance with the provisions of a Statutory Rule (Rule 55(4) of the West Bengal Service Rules) bona fide and not calculated to disobey the Court''s order was held not to be contumacious. The decision whether the disobedience is wilful or not is dependent on the facts and circumstances of the case, it is dependent on the context in which the orders have been passed and the provisions of law, if there be any governing the situation and the decision of the Court sought to be implemented and its conclusiveness. In other words, whether from the order, it can be said that is to be done and nothing else could be done. The factors which might be guiding the situation may be summarized thus ; (a) lack of proper care and caution in implementing an order is not by itself sufficient to punish a person for contempt ( S.S. Roy Vs. State of Orissa and Others, ), (b) a bona fide misinterpretation of an order is not a ground to punish a person for contempt (Indian Oil Corporation Ltd. v. Sheo Shankar Mishra (1995) 2 Pat LJR 875 )); (c) there is no wilful disobedience if best efforts are made to comply with the order (Sector-6 Sector-6, Bahadurgarh Plot Holders'' Association and Others Vs. State of Haryana and Another, ). The expression "wilful" has been defined by the Division Bench of Punjab and Haryana High Court in Court on its Court on its Own Motion Vs. Sh. N.S. Kanwar, , after an instructive study of earlier Indian and English authorities in the following words :

"From the above quoted dictionary meaning of the term "wilful" and the decisions of the Courts, it is reasonable to derive that term ''wilful disobedience'' used in Section 2(b) of the Contempt of Courts Act, 1971 cannot be construed to mean that an act must in all cases be designed and deliberate to be held as Civil Contempt. If a party who is fully in know of the order of the Court or is conscious and aware of the consequences and implications of the Court''s order, ignores it or acts in violation of the Court''s order, it must be held that disobedience is wilful in our view ordinarily it is never practicable to prove the actual intention behind the act or omission. The Court can approach the question only objectively and it may presume the intention from the act done as every man is presumed to intend the probable consequence of his act."

The existence of wilfulness differs from case to case. It is dependent on the facts of each case and the context of the order contempt of which is alleged. It is just not possible to enumerate all the situations. There cannot be any strait jacket formula. Each case is to be decided on its own merit. Having regard to the facts of the present case where a decision has to be taken with regard to the entitlement of the parties alleging contempt having regard to the legal position dependent upon various rules can be decided only after having examined the context of the order and the intent of the Court. If the question is not conclusively decided and something remains to be decided and it is left to be considered by the authority against whom contempt is alleged, unless on facts, lack of bona fide can be deciphered, contumacious conduct cannot be presumed. As discussed above, in this case the Court did not conclusively determine the entitlement of the petitioners and had left something to be done by the authorities having regard to the law on the subject as indicated therein.

In the context of the facts of this case, we are supposed to examine whether such an action could be taken bona fide. As discussed above, we are unable to hold that the decision which has been taken could not be taken bona fide or that the decision on the face of it is patently mala fide, the facts of this case does not lead us to presume wilfulness behind the action alleged to be contumacious. It appears to us that the action of the alleged contemnors does not appear to be contumacious.

The ratio decided in the decisions cited by Mr. Mitra are settled proposition of law with which there cannot be any doubt. But, in the facts and circumstances of this case, we do not think that those principles can be attracted and that this is a fit case where the matters could be disposed of by passing, in this contempt proceeding, suitable orders in respect of matters giving rise to fresh cause of action, viz : the entitlement of the petitioners requiring deliberation in an appropriate proceeding.

In the result, this application fails and is, accordingly, dismissed.

There will be no order as to costs.

All parties concerned are to act on a xerox signed copy of this Dictated Order on the usual undertaking.

R.N. Sinha, J.

I agree.