Madhya Pradesh High Court
Manoj Badretiya vs Shri Amar Nath Singh on 5 December, 2018
1 Conc.361/2015
THE HIGH COURT OF MADHYA PRADESH
Conc. No.361/2015
(Manoj Badretiya & Ors. vs. Shri Amar Nath Singh)
Gwalior, Dated : 05.12.2018
Shri S.S. Raghuvanshi, counsel for the petitioners.
Smt. Ami Prabal, counsel for respondent No.1.
Shri C.P. Sharma, counsel for respondent No.2. Smt. Usha Pathak, Assistant Commissioner, Tribal Welfare Gwalior.
The respondent No. 1 is present in person. The respondent No.2 is not present inspite of the clear direction given by this Court by order dated 26.09.2017. No application has been filed seeking exemption from personal appearance on behalf of the respondent No.2.
It is submitted by Shri C.P. Sharma that on 26.09.2017 the respondent No.2 was present but as the case remained not reach therefore neither the cost was paid nor the presence of the respondent No.2 could be mentioned in the order sheet.
The submission made by the counsel for the respondent No.2 cannot be accepted. If the counsel for the respondent No.2 was apprehensive of the fact that the case may not reach and the cotemners have appeared in compliance of the order dated 26.09.2017, then they could have mentioned before the Court for taking of the case out of turn but nothing was done. If the respondent No.2 had come to Gwalior then he could have atleast paid the cost to the counsel for the petitioners. Even that was not done. Even today no document to show that the respondent No.2 had ever come to Gwalior on 27.10.2017 has been produced. Thus, it is clear that the submission made by the counsel for the respondent No.2 that the respondent 2 Conc.361/2015 No.2 had come to the Court on 27.10.2017 cannot be accepted. It is fairly conceded by Shri Sharma that the respondent No.2 is posted in Janpad Panchayat Ghatigaon which is barely 30 Kms away from Gwalior city and Ghatigaon is also a part of Gwalior district. It is also fairly conceded by the counsel for the respondent No.2 that he had noticed this case in the evening of 3.12.2018. Thus, it is clear that the respondent No.2 had 48 hours to appear before this Court. It is submitted by Shri Sharma that he had informed the respondent No.2 but because of some health problems he could not come. However, Shri Sharma was not in a position to clarify the nature of health problem of the respondent No.2. As already been pointed out even no application has been filed seeking exemption from personal appearance on behalf of the respondent No.2. The counsel for the respondent No.2 has stated that the role of the respondent No.2 would come only after the compliance is made by the respondent No.1 and the Principal Secretary of Tribal Welfare Department, therefore, in fact it is the respondent No.1 who is primarily responsible for the non-compliance of the order of the High Court. Be that as it may.
The respondent No.2 was represented on 26.09.2017 also. In the presence of the counsel for the respondent No.2 this Court had directed that in case if the compliance is not made by the next date of hearing, then the respondent No.1 and the respondent No.2 shall remain present before this Court. The respondent No.2 on his own cannot take any decision to disobey the order dated 26.09.2017. Under these circumstances, this Court is of the considered opinion that not only the respondent No.2 has not complied with the order of this Court passed on 3.3.2015 in W.P. No.937/2015 but he also violated the 3 Conc.361/2015 order dated 26.09.2017 by not remaining present before this Court. Order dated 26.09.2017 was passed more than a year back but still the respondents No.1 and 2 are trying to play the game of shifting the responsibility from one shoulder to another whereas the petitioners are waiting for their appointment. It is true that the Government has to function through its functionaries and there are certain formalities which are required to be completed, but the contemnors under the garb of those formalities cannot be given so much of time so as to frustrate the orders of the High Court itself. Under these circumstances, when this Court has already come to a conclusion that the respondent No.2 has deliberately avoided to appear before this Court, therefore, this Court is left with no other option but to issue arrest warrant against him for his production before this Court on 13.12.2018.
The cost of Rs.5000/- as imposed by this Court on 26.09.2017 is paid by respondent No.1 to the counsel for the petitioners in the Court itself. It is made clear that the cost shall not be reimbursed by the State and the contemnor has to bear the cost out of her own pocket.
It is submitted by the respondent No.1 herself as well as the counsel for the respondent No.1 that the respondent No.1 had joined the present place of posting in the month of June, 2017. Accordingly, on 09.08.2017 she had written a letter to the Principal Secretary, Tribal Welfare Department seeking for the direction in the matter as the standing counsel of the State had refused to file the SLP against the order passed by this Court in review. Thereafter, another letter dated 12.10.17 was written by the respondent No.1 to the Commissioner, Tribal Welfare Department, Bhopal in which it was specifically mentioned that the contempt proceedings have been initiated.
4 Conc.361/2015However, no response was received. Thereafter, another letter dated 23.10.2017 was written by the respondent No.1 to the Commissioner, Tribal Welfare Department sending a reminder but still no response was given by the Commissioner or by the Principal Secretary, Tribal Welfare Department. Thereafter, another letter was written by the respondent No.1 on 25.02.2018 to the Commissioner, Tribal Welfare Department, Bhopal but again no response was given. It is further submitted by the respondent No.1 in person, that on various occasions even in the videoconferencing she had informed the Commissioner, Tribal Welfare Department as well as the Principal Secretary, Tribal Welfare Department about the non- compliance of the order of the High Court and the pendency of the contempt petition but no action was taken by them. Therefore, the respondent No.1 was unable to comply the order as she had already performed her part and the remaining action is to be taken at the Bhopal either by the Commissioner, Tribal Welfare Department or by the Principal Secretary, Tribal Welfare Department. It is further submitted that today itself she has received a message on Whatsapp from which it appears that 286 post of Primary Teachers have been created by order dated 27.09.2018. However, she has further admitted that this letter has not been communicated to her officially and she has got this information only on the whatsapp message. Thus in detail, the respondent No.1 has submitted that inspite of her best written efforts and efforts of pursuing the Higher officials like Principal Secretary, Tribal Welfare Department and Commissioner, Tribal Welfare Department, during video conferencing no response was received from the senior officers and under these circumstances she could not comply the order of this Court. The submissions 5 Conc.361/2015 made by the respondent No.1 prima facie appears to be plausible because it is her stand that inspite of her best efforts no response was send by her senior officers. Under these circumstances, this Court is left with no other option but to issue notice to Principal Secretary, Tribal Welfare Department and Commissioner, Tribal Welfare, Bhopal to appear before this Court and to explain as to why they did not respond to the letters which were repeatedly written by the respondent No.1 and why they did not respond to the request made by the respondent No.1 on various occasions during videoconferencing and why the order of the High Court has not been complied with.
At this stage, it was inquired from Smt. Ami Prabal Solanki that whether she would be representing the Principal Secretary, Tribal Welfare Department and Commissioner, Tribal Welfare Department or not, then she fairly conceded that the notices may be issued to the Principal Secretary Tribal Welfare Department and Commissioner, Tribal Welfare Department.
Accordingly, the office is directed to issue notice to the Principal Secretary, Tribal Welfare Department and Commissioner, Tribal Welfare Department for their appearance before this Court on 13.12.2018.
List this case on 13.12.2018.
(G.S. Ahluwalia) Judge van VANDANA VERMA 2018.12.06 10:52:49 +05'30'