Central Administrative Tribunal - Delhi
Sh. V.K. Singhal vs Uoi & Ors. Through on 24 August, 2012
Central Administrative Tribunal
Principal Bench, New Delhi.
CP-324/2012
In
OA-1233/2012
New Delhi this the 24th day of August, 2012.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Sudhir Kumar, Member (A)
Sh. V.K. Singhal,
S/o Sh. G.P. Singhal,
R/o 388, Sector-29,
Faridabad (Haryana). . Applicant
(through Sh. M.K. Bhardwaj, Advocate)
Versus
UOI & Ors. through
1. Sh. G.E. Veerabhadrappa
President
ITAT, Pratishtha Bhawan,
(Old CGO Building) 4th Floor,
101, Maharshi Karve Marg,
Mumbai-400020.
2. Sh. G.D. Aggarwal,
Vide President
ITAT, 10th Floor,
Lok Nayak Bhawan, NDMC Complex,
Khan Market, New Delhi-3. . Respondents
(Through Sh. R.V. Sinha, Sh. Ashish Nischal and Sh. Atul Kumar, Advocates)
O R D E R (Oral)
Mr. Sudhir Kumar, Member (A):
This Contempt Petition was filed by the petitioner, alleging non-compliance of the orders of this Tribunal passed on 23.04.2012 on his MA No. 1118/2012 in OA No.1233/2012. The Single Bench had that day on 23.04.2012 recorded its orders and directions in detail as follows:-
This is the second round of litigation by the applicant against the Annexure A-2 order dated 31.10.2011 transferring him from Delhi to Hyderabad. Against the said order, the applicant had filed OA No. 3939/2011 and the same was disposed of on consensual basis vide order dated 27.03.2012 by permitting the applicant to give his choice of stations for posting within three days and a direction to the respondents to consider the same before issuing any final order with regard to his next posting. Till such time status quo was ordered to be maintained.
Pursuant to the aforesaid order, the applicant has given his options for three stations, namely, Agara, Chandigarh and Jaipur. However, the respondents vide impugned Annexure A-1 order dated 10.04.2012 stated that there are two regularly posted Members at Agra Bench and they are capable of attending the work of Assistant Registrar of that Bench also. Further, they have stated that vacancy in that Bench has arisen only on 01.04.212 and they are trying to manage the said Bench through the periodical tour of the Assistant Registrar from Delhi. As regards Chandigarh Bench is concerned, they have stated that a Senior Assistant Registrar, namely, Sh. O.P. Kesri has already been posted there w.e.f. 31.10.2011. With regard to Jaipur Bench is concerned, according to them, there are no vacancy there and the ad hoc Assistant Registrar posted there is doing the job satisfactorily.
Notice in this case were issued to the respondents returnable on 30.04.2012 and on that day Sh. Tanveer Ahmed Ansari, learned counsel for respondents accepted notice on behalf of the respondents. However, vide impugned order dated 12.04.2012, the applicant has been relieved from his duties with a direction to report to the Income Tax Appellate Tribunal, Hyderabad Bench. The applicant has challenged the said order by filing the present MA No 1118/2012 in OA No. 1233/2012. Learned counsel for the applicant has also submitted that an advance copy of the MA was tried to be served to Shri Tanveer Ahmed Ansari but he refused to accept the same. Therefore, he had sent a copy of the same by Post to the respondents.
In my considered view, there is a prima facie case in favour of the Applicant. Admittedly, there was a consensual order permitting the applicant to give his choice of three stations and the applicant has given his first choice as Agra. The respondents rejected the same on the ground that the Members of the Bench will look after the work and Assistant Registrar there. Further, they have submitted that by deputing an Assistant Registrar from Delhi Bench, periodically on tour, they will further manage the work, such an explanation from the respondents is quite unconvincing. Though the transfers and postings are the prerogative of the administrative head, the reason given by the respondents in not acceding to the request of the applicant to post him at Agra, cannot be held as in public interest.
Issue notice on the MA returnable on 30.04.2012 i.e. the date on which the OA has also been listed before this Bench. Meanwhile, the respondents shall not give effect to the order dated 12.04.2012 relieving the applicant from the Income Tax Appellate Tribunal, Delhi Bench and to report to the Income Tax Appellate Tribunal, Hyderabad Bench.
Order DASTI.
2. The petitioner served a copy of this order on the respondents in the morning on 24.04.2012, and requested them to allow him to be continued to be posted at Delhi. However, the petitioner has alleged that he was informed that Respondent No.1 had given specific instructions not to allow the petitioner to continue at Delhi Bench of the Income Tax Appellate Tribunal (I.T.A.T., in short), and that even the Respondent No.2 has not obeyed the orders of this Tribunal, as he has not taken any action to allow the petitioner to serve at Delhi Bench, and to pay his salary and allowances and arrears etc. The petitioner had, therefore, alleged that once the Tribunal had stayed the effect of the relieving order, the respondents have not followed and obeyed those orders, in order to deprive the petitioner from serving at Delhi Bench, and have rejected his request made on 24/25.04.2012 to allow him to continue to work at the Delhi Bench of the ITAT. He had, therefore, prayed for initiation of contempt proceedings against the respondents, for violating the order passed by this Tribunal on 23.04.2012 on his MA No.1118/2012 in OA No.1223/2012, and to force the respondents to implement the orders passed by the Tribunal, and to pass any further orders as may deem fit.
3. The respondents filed a reply to the Contempt Petition on 24.07.2012, mentioning that this Contempt Petition has been filed in an abuse of the process of law by the applicant, and is not maintainable, since after rejection of his request for continuation of his posting at Delhi on 10.04.2012, the petitioner was relieved on 12.04.2012 in accordance with the orders of his transfer, and even his Last Pay Certificate had also been drawn and sent to Hyderabad, and the order dated 12.04.2012 had, therefore, been given effect to. It was submitted that the Honble Apex Court has settled the law that the applicant challenging the transfer order shall first join the place of transfer, and thereafter if he had any grievance, he may approach the Tribunal, as decided in the case of Civil Appeal No.280/2003 in the case of S.C. Saxena vs. Union of India & Ors. They submitted that the petitioner had fraudulently obtained an ex-parte order from this Tribunal on 23.04.2012, without bringing to the notice to this Tribunal that the order dated 12.04.2012 had already been given effect to. However, they submitted that after 24.04.2012, the petitioner has not been pressurized or asked to go to report at the ITAT Hyderabad Bench, even though the office work there is suffering. It was further submitted that this Tribunal has neither stayed the transfer order dated 31.10.2011, nor the subsequent order dated 10.04.2012 giving effect to that transfer, and when the OA filed by the applicant came up for hearing on 13.04.2012, even then this Tribunal had not granted any relief to the applicant. It was also submitted that the respondents had on receipt of the order dated 24.04.2012 immediately filed an MA No.1191/2012 before this Tribunal, praying for vacation of the order dated 23.04.2012, but even without waiting for the result of that MA filed by the respondents, just two days after the supply of the order dated 24.04.2012 at the ITAT office, the petitioner has filed this Contempt Petition, in haste, and, therefore, all the allegations made in this petition are baseless, derogatory, and amount to misconduct. It was denied that the respondents have violated the order of this Tribunal willfully and deliberately, since they have not asked him to join at Hyderabad after the order dated 23.04.2012. It was, therefore, prayed that the CP may be dismissed, as the present petitioner is misusing and abusing the process of law.
4. During the hearing on the Contempt Petition on 09.08.2012, time was sought for filing further reply. However, this Contempt Petition came to be finally heard on 24.08.2012. Learned counsel for the petitioner submitted that this Contempt Petition had been filed on the apprehension that the respondents are not going to obey the orders of this Tribunal dated 23.04.2012. However, he submitted that the circumstances have since changed, and that there has been a change in the incumbents as the President and the Vice-President of the ITAT, and the named respondent No.1 is no longer there, and, therefore, there is a likelihood that the respondents may pass orders for continuation of the petitioner/applicants posting at Delhi. In essence, he did not press this Contempt Petition during arguments.
5. On the other hand, the learned counsel for the respondents submitted that there has been no willful disobedience of the orders of this Tribunal, inasmuch as the position as it existed as on 23.04.2012, at the time of the passing of the order concerned, has been allowed by the respondents to stand as it is. The applicant/petitioner had stood relieved on 12.04.2012 itself, and was, therefore, expected to join at Hyderabad, but the respondents have not precipitated the matter by forcing him to join at Hyderabad.
6. Along with their submissions, the learned counsel for the respondents had also relied upon the judgments of the Honble Apex Court in support of their arguments that since firstly there is no disobedience of the orders of this Tribunal, and secondly even if by a far-fledged imagination, a case of technical disobedience has been made out, there was no willful disobedience of the orders of this Tribunal by the respondents, and, therefore, this Contempt Petition does not lie. In saying so, they had relied upon the following judgments of the Honble Apex Court:-
i) In Murray & Co. vs. Asjok Kumar, New Atia and Another; (2000) 2 SCC 367 the Honble Apex Court has held as follows:
20. Incidentally, Section 13 of the Act of 1971 postulates not punishment for contemptuous conduct in certain cases and the language used therein seems to be with utmost care and caution when it records that unless the court is satisfied that contempt is of such a nature that the act complained of substantially interferes with the due course of justice, question of any punishment would not arise. It is not enough that there should be some technical contempt of Court but it must be shown that the act of contempt would otherwise substantially interfere with the due course of justice which has been equated with "due administration of justice". Jenkins, C.J. in an old Calcutta High Court decision in the case of Governor of Bengal v. Matilal Ghosh, ILR 41 Calcutta 173 : (AIR 1914 Cal 69 : 1913 (14) Cri LJ 321) observed :-
"Then this motion raises a question of high importance, which it would not be right for me to pass by without remark I allude to the question what circumstances ordinarily justify recourse to this summary process of contempt.
It is not enough that there should be a technical contempt of Court; it must be shown that it was probable the publication would substantially interfere with the due administration of justice."
21. In this context, reference may also be made to the observations of Lord Diplock in Attorney-General v. Times Newspapers Ltd. (1973) 3 All ER 54 Lord Diplock observed :-
"Since the Court's discretion in dealing with a motion for committal is wide enough to entitle it to dismiss the motion with costs despite the fact that a contempt has been committed, if it thinks that the contempt was too venial to justify its being brought to the attention of the Court at all, the distinction between conduct which is within the general concept of contempt of court and conduct included within that general concept, which a Court regards as deserving of punishment in the particular circumstances of the case, is often blurred in the judgments in the reported cases. The expression 'technical contempt' is a convenient expression which has sometimes been used to describe conduct which falls into the former but outside the latter category, and I agree with my noble and learned friend, Lord Reid, that given conduct which presents a real risk as opposed to a mere possibility of interference with due administration of justice, this is at very least a technical contempt."
22. Substantial interference with the course of justice is the requirement of the statute for imposition of punishment. There is no manner of doubt that the words 'due course of justice' used in Section 13 is wider in scope than the words 'due course of any judicial proceeding or administration of justice' used in sub-clause (ii) or (iii) of Section 20. In this context reference may be made to the decision of this Court in R. Subba Rao's case Rachapudi Subba Rao v. Advocate-General, Andhra Pradesh, (1981) 2 SCC 577 ; ( AIR 1981 SC 755 : 1981 Cri LJ 315). For proper appreciation of the intent of legislation Section 13 as also Section 2(c) are set out hereinbelow. Section 13 reads as under :
"13. Contempts not punishable in certain cases-Notwithstanding anything contained in any law for the time being in force, no Court shall impose a sentence under this Act for a contempt of Court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice."
25. Section 2(c) is noted as below :-
2.Definitions- In this Act, unless the context otherwise requires,-
. . . . . . . . . . . . . . . . . . . . .
(c) "Criminal Contempt" means the publication (whether by words spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing or any other act whatsoever which-
(i) scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any Court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner."
23. Statute therefor puts an obligation on to the Court to assess the situation itself as regards the factum of any interference with the course of justice or due process of law.
ii) In Chhotu Ram vs. Urvashi Gulati and Another (2001) 7 SCC 530 the Honble Apex Court made the following observations:
The introduction of the Contempt of Court Act, 1971 in the statute book has been for the purpose of securing a feeling of confidence of the people and for due and proper administration of justice in the country. It is powerful weapon in the hands of the law court by reason where for the exercise of jurisdiction must be with the due care and caution and for larger interest.
2. As regards, the burden and standard of proof, the common legal phraseology "he who asserts must prove" has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the 'standard of proof,' be it noted that a proceeding under the extraordinary jurisdiction of the Court in terms of the provisions of the Contempt of Courts Act is quasi-criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond all reasonable doubt.
3. Lord Denning [in Re Bramblevale 1969 (3) All ER 1062] lends concurrence to the aforesaid and the same reads as below:
"A contempt of Court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time honoured phrase, it must be proved beyond all reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence. .... When there are two equally consistent possibilities open to the Court, it is not right to hold that the offence is proved beyond reasonable doubt."
4. Before adverting to the factual score, one further decision may be of some consequence and as such the same is noticed at this juncture only. The decision being that of V.G. Nigam [V.G. Nigam v. Kedar Nath Gupta (1992) 4 SCC697 : (1992 AIR SCW 2529 : AIR 1992 SC 2153 : 1992 Cri LJ 3576] where in the similar vein this Court also stated that it would be too hazardous to sentence in exercise of contempt jurisdiction on mere probabilities. This Court went on to record that the willful conduct is a primary and basic ingredient of such an offence. In All India Anna Dravida Munnetra Kazhagam vs. L.K. Tripathi and Others; (2009) 5 SCC 417 the Honble Apex Court held as follows:
55. The term "wilful" (willfull) has not been defined in the 1971 Act. Therefore, it will be useful to notice dictionary meaning of the said term. As per The New Oxford Illustrated Dictionary (1980 Edition), the term "willful" means "asserting or disposed to assert one's own will against instruction, persuasion, etc. obstinately self-willed; deliberate, intentional, showing perversity or self-will".
58. In Shorter Oxford English Dictionary, the term "willful" has been defined as, 1."asserting or disposed to assert one's own will against persuasion, instruction, or command; governed by will without regard to reason; obstinately self-willed or perverse.
2. Willing; consenting; ready to comply with a request, desire, or requirement - 1598.
3. Proceeding from the will; done or suffered of one's own free will or choice; voluntary - 1687.
4. Done on purpose or wittingly; purposed, deliberate, intentional. (Chiefly, now always, in bad sense of a blameworthy action; freq. implying `perverse, obstinate'.)
62. Para 17 of the judgment which contains discussion on the subject reads as under:
"17. Section 2(b) of the Contempt of Courts Act defines "civil contempt" and it means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of undertaking given to a court. "Wilful" means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say, with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore, in order to constitute contempt the order of the court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extraordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case. The facts mentioned above show that none of the respondents to the petition can be held to be directly responsible if the Scheme which had been formulated by the Government of India on 28-6-1996 and had been approved by this Court by the order dated 8-7-1996 could not be implemented in letter and spirit as many factors have contributed to the same. The reasons given for non-inclusion of Shri Umadhar Prasad Singh in signing of the agreement appear to be quite plausible. NCFL has undoubtedly not discharged its liability of making payment of its entire liability of Rs.6 crores. However, it has come out with a case that some additional expenditure has been incurred in running the unit. It is not possible to get the complete financial picture only on the basis of the affidavits filed in the present petition. On the material on record, therefore, it is not possible to hold that the charge of having committed contempt of court on account of alleged non- compliance with the orders passed by this Court on 8-7-1996, 1-5- 1997 and 31-7-2000 has been established against any one of the respondents." [Emphasis added] In Dinesh Kumar Gupta vs. United India Insurance Company Limited and Others (2010) 12 SCC 770 the following observations were made by the Honble Apex Court:
17. This now leads us to the next question and a more relevant one, as to whether a proceeding for contempt initiated against the appellant can be held to be sustainable merely on speculation, assumption and inference drawn from facts and circumstances of the instant case. In our considered opinion, the answer clearly has to be in the negative in view of the well-settled legal position reflected in a catena of decisions of this court that contempt of a civil nature can be held to have been made out only if there has been a wilful disobedience of the order and even though there may be disobedience, yet if the same does not reflect that it has been a conscious and wilful disobedience, a case for contempt cannot be held to have been made out. In fact, if an order is capable of more than one interpretation giving rise to variety of consequences, non-compliance of the same cannot be held to be wilful disobedience of the order so as to make out a case of contempt entailing the serious consequence including imposition of punishment. However, when the Courts are confronted with a question as to whether a given situation could be treated to be a case of wilful disobedience, or a case of a lame excuse, in order to subvert its compliance, howsoever articulate it may be, will obviously depend on the facts and circumstances of a particular case; but while deciding so, it would not be legally correct to be too speculative based on assumption as the Contempt of Courts Act 1971 clearly postulates and emphasizes that the ingredient of wilful disobedience must be there before anyone can be hauled up for the charge of contempt of a civil nature.
3. Besides this, it would also not be correct to overlook or ignore an important statutory ingredient of contempt of a civil nature given out u/s 2 (b) of the Contempt of Courts Act 1971 that the disobedience to the order alleging contempt has to satisfy the test that it is a wilful disobedience to the order. Bearing this important factor in mind, it is relevant to note that a proceeding for civil contempt would not lie if the order alleged to have been disobeyed itself provides scope for reasonable or rational interpretation of an order or circumstance which is the factual position in the instant matter. It would equally not be correct to infer that a party although acting due to misapprehension of the correct legal position and in good faith without any motive to defeat or defy the order of the Court, should be viewed as a serious ground so as to give rise to a contempt proceeding.
24. To reinforce the aforesaid legal position further, it would be relevant and appropriate to take into consideration the settled legal position as reflected in the judgment and order delivered in the matter of Ahmad Ali Vs. Supdt., District Jail, AIR 1987 SC 1491 : Supp. SCC 556 that mere unintentional disobedience is not enough to hold anyone guilty of contempt and although, disobedience might have been established, absence of wilful disobedience on the part of the contemnor, will not hold him guilty unless the contempt involves a degree of fault or misconduct. Thus, accidental or unintentional disobedience is not sufficient to justify one for holding guilty of contempt. It is further relevant to bear in mind the settled law on the law of contempt that casual or accidental or unintentional acts of disobedience under the circumstances which negate any suggestion of contumacy, would amount to a contempt in theory only and does not render the contemnor liable to punishment and this was the view expressed also in cases reported in AIR 1954 Patna 513, State of Bihar Vs. Rani Sonabati Kumari and AIR 1957 Patna 528, N. Bakshi Vs. O.K. Ghosh.
7. Without going further into the details of the law as laid down by the Honble Apex Court in the above cases, and in many other cases, since it is seen that there has been no willful disobedience of the orders of this Tribunal by the respondents, and actually immediately after receipt of the concerned orders dated 23.04.2012 on 24.04.2012 from the petitioner, the respondents have rather moved this Tribunal an MA No.1191/2012 seeking for vacation of the order dated 23.04.2012, and further pointing out that no precipitate action has been taken by them in pursuance of the relieving order dated 12.04.2012 regarding which this Tribunals order has been passed, it is clear that no disobedience, and particularly no willful disobedience of the orders of this Tribunal has been there on the part of the respondents in this case.
8. As per the law as laid down by the Honble Apex Court, as per the above cited cases among many others, it is clear that a person, who alleges a wrong to have been committed must provide proof of the wrong having been actually committed, and here the petitioner has been unable to prove any disobedience on the part of the respondents of the orders of this Tribunal, and has further also not been able to prove that any disobedience, if there was one, was willful, in order to bring it within the ambit of the Contempt of Courts Act, 1971.
9. Therefore, it is clear that this Contempt Petition does not lie, and the same is dismissed and notices issued against the respondents are discharged.
(Sudhir Kumar) (G. George Paracken) Member (A) Member (J) cc.