Gujarat High Court
J.A. Goraswa And Anr. vs D.I.G. Of Police And Anr. on 2 August, 1995
Equivalent citations: 1996CRILJ994, (1995)2GLR1666
JUDGMENT M.N. Mathur, J.
1. This Misc. Civil Application (for contempt) has been filed on 16-10-1991 by the petitioners namely; (1) J. A. Goraswa and (2) R. B. Shukla against Director General and Inspector General of Police, Gujarat State and State of Gujarat.
2. The say of the petitioners is that they were serving as Head Constables in the Police Force of the respondents and they had appeared for the written test and oral test for the purpose of promotion to post of Police Sub-Inspectors. They had passed the written test but failed in the oral test. Therefore, they approached this Court by way of filing Special Civil Applications which were decided by the Court (Coram: R.J. Shah, J.) by a common judgment dated 27-10-1989. This Court issued certain directions to the respondents to be carried out within a specified time. A copy of the judgment has been annexed with this Application and marked as Annexure 'A'. It is further casually stated by the petitioners that "it seems against the aforesaid judgment, the respondents have filed Letters Patent Appeal. The applicants are not aware whether the Letters Patent Appeal has been filed against them or not since they are not served with the notice of the appeal." In the subsequent para, it is stated that one Letters Patent Appeal being L. P. A. No. 358/90, has been admitted and in 'the Civil Application No. 1286/90, certain directions have been given by the Division Bench of this Court on 29-1-1991. A copy of the said order has been annexed and marked as Annexure 'B'. The further say of the petitioners is that if the judgment in the main petition is implemented, they would stand promoted to the post of Sub-Inspectors, and the respondents deliberately and wilfully have not implemented the judgment and as such they have committed contempt of Court. It is thus prayed that contempt proceedings be initiated under the Contempt of Courts Act, 1971 against the respondents or to direct the respondents to implement the directions issued in the aforesaid Special Civil Application.
3. From the above facts as stated in the petition, it is difficult for us to understand as to what is the controversy involved. In a casual manner, it has been stated that certain directions were given by the High Court and certain directions were given by the Division Bench of this Court in Letters Petent Appeal. There is nothing to show under what circumstances the petitioners approached this Court, and what exactly were the directions given by the learned Single Judge and thereafter by the Division Bench. Thus, it has become necessary for us to collect the material facts from the material available on record. After going through the reply filed by the respondents and the judgment of the learned Single Judge, we have collected the facts which are thus:-
Petitioner No. 1 :- J. A. Goraswa had filed Special Civil Application which was registered as S. C. A. No. 4009/87, and petitioner No. 2, R. B. Shukla had filed Special Civil Application which was registered as S. C. A. No. 4913/87. The say of the petitioners is that in the year 1983, examinations were held for promotion to the post of Sub-Inspectors. Out of 600 candidates only 192 candidates passed the written test. Thereafter, oral test termed as "practical test" was held during the period from 1-2-1985 to 3-2-1985. The result of the practical test was declared on 11-3-1985. Out of the 192 candidates, 64 candidates were declared to have passed, and orders were issued directing the candidates to report for training at Junagadh on 18-3-1985. The petitioners challenged the result of 11-3-1985. Number of identical petitions were filed in this connection. All these petitions were heard together. It was contended that the provisions regarding practical test are arbitrary and irrational. Contentions were raised with regard to consideration of the service record as well. The petitioners also challenged the rules with respect to the practical test. The learned Single Judge held that it was possible to decide the group of matters even without striking down the rules, as the grievance of the petitioners was found to be legitimate. The learned Single Judge also found that at that late stage, it was not possible to set aside the result of the entire examination on the ground that the practical test was defective and as such the direction was given that out of 100 marks for oral interview, 40 marks be allotted to alertness and smartness and the oral interview may be considered on the basis of 60 marks and not 100 marks. It was further directed to give 30 marks for consideration of rewards and 20 marks for punishment. The learned Single Judge, by judgment dated 27-10-1989, decided the Special Civil Application No. 5312/85 along with a group of matters which includes Special Civil Applications No. 4009/87 and 4914/87 filed by the present petitioners. L. P. A. was also filed against the aforesaid judgment. It is evident from the order at Annexure 'B' dated 29-1-1991 passed by the Division Bench of this Court in Letters Patent Appeal No. 358/90 that this Court stayed the judgment and order passed by the learned Single Judge except in Special Civil Application No. 5312/85. It would be convenient to reproduce order dated 29-1-1991 hereunder:
"Appeal admitted.
Having heard the learned Advocates of parties, it is directed that the judgment under appeal will be ' implemented qua these original petitioners who were covered by the interim relief order passed by the Court in Special Civil Application No. 5312/85 and who were sent for training and who have completed the training successfully. For the rest of original petitioners, the judgment and order of the learned Single Judge under appeal shall remain stayed till final decision in the Letters Patent Appeal. It is clarified that those of the original petitioners who get benefit of the present order will be getting that benefit subject to the final result in the Letters Patent Appeal. The cases of the concerned original petitioners that will be covered by the present order shall be examined and finalised by the concerned appellants within a period of eight weeks from today subject to the available vacancies in the cadre of P. S. is Civil Application accordingly stands disposed of with no order as to costs."
(Underline is ours)
4. Thus, the Division Bench, by the aforesaid order, directed to implement the order of the learned Single Judge qua the original petitioners who were covered by the interim relief order passed by the Court in Special Civil Application No. 5312/85 and candidates who were sent for training and who have completed the training successfully. For the rest of the original petitioners, the judgment and order of the Learned Single Judge has been stayed till the final decision of the Appeal.
5. It is unfortunate that though the petitioners have filed a copy of the order passed in the Letters Patent Appeal, nothing has been said in the petition as to whether the case was covered by the order passed in the Letters Patent Appeal or not.
6. This petition is also one among the other petitions filed in a casual manner with incomplete and inaccurate pleadings, which everyday comes on Board. The present Misc. Civil Application is not only inaccurate in material particulars, but also vague and misleading. The casual approach is further reflected in the manner in which the affidavit has been filed in support of the contempt application.
7. The High Court of Gujarat, in exercise of the powers conferred in Section 23 of the Contempt of Courts Act, 1971, has made the Rules known as "The Contempt of Court (Gujarat High Court) Rules, 1984" to regulate the proceedings under the contempt of Courts Act, 1971. Rule 7 of the said Rules provides for contents of a petition, which reads as follows:
"7(a) Every petition made under rules 4(a), 5(C) and 5(d) shall contain :
(i) the full name, description and place of residence of the petitioner and of the person charged;
(ii) nature of the contempt alleged, and such material facts, including the date or dates of commission of the alleged contempt as may be necessary for the proper determination of the case, and shall be arranged, in suitable paragraphs consecutively numbered;
(iii) if a petition has previously been made by him on the same facts, the petitioner shall give the details of the petition previously made and shall also indicate the result thereof;
(iv) the relief sought shall be set out at the end of the petition;
(b) every petition shall be signed by the petitioner or his duly authorised agent.
Note :- Where a person signs the petition in a capacity other than his individual capacity, such as Public Officer, guardain of a minor, partner of a firm, power of attorney holder, Director, Secretary or Principal Officer of a Company or Corporation, etc. he shall indicate the capacity in which he signs,
(c) the petition shall be supported by affidavit. The deponent shall state what paragraphs or portions of his affidavit he swears or solemnly affirms to from, his own knowledge and what paragraphs or portions he swears or solemnly affirms to on his own belief, stating the grounds of such belief,
(d) Where the petitioner relies upon documents in his possession or power, he shall file such document or true copy thereof with the petition and in that case, when called upon by the Court, produce the original document.
(e) Nothing stated in this rule shall, however, apply to the proceedings arising out of the contempt covered by Section 14 of the Act."
Thus, the Rules provide that every contempt petition shall contain full name, description and place of residence of the petitioner as well as of the persons charged. Thus, name of the respondent is also required to be given with full description. The application is also required to contain the alleged contempt, material facts necessary for proper determination of the case etc. The petition is also required to be signed by the petitioner or his authorised agent. Where a person signs the petition in a capacity other than his individual capacity, he is required to indicate the capacity in which he signs. The petition is required to be supported by affidavit. The deponent shall state which paragraph or portion of his affidavit he swears or solemnly affirms to, from his own knowledge and what paragraphs or portions he swears or solemnly affirms to, on his own belief, stating the grounds for such belief.
8. It may be seen that in the present application, material facts have not been given for the proper determination of the case. It may further be seen that the application has neither been signed by the petitioner nor proper affidavit has been filed. For the convenience, the affidavit is reproduced as follows :-
"AFFIDAVIT I, J. A. Goraswa the applicant above named do hereby solemnly affirm and state on oath that what is stated above is true to my knowledge, information and belief and I believe the same to be true.
Solemnly affirmed on this the 1st day of October, 1991 at Ahmedabad.
Sd/- Deponent"
9. In the aforesaid affidavit, it is only stated that whatever is stated in the affidavit is true to the knowledge of the deponent. The deponent has not stated which of the paragraphs are true to his own knowledge and which are the paragraphs or portions which he swears or solemnly affirms to his own belief stating the grounds of such beliefs. Order XIX Rule 3 of the Civil Procedure Code provides that affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted. Thus, where the allegations in an affidavit are stated to be correct to the best of the knowledge, the nature of source of the knowledge is not disclosed, the affidavit would not be as per law. The Apex Court in A.K.K. Nambiar v. Union of India., , emphasising the importance of the verification said thus (at Page 653 of AIR):-
"The reasons for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit evidence of rival parties. Allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on records. The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In essence verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. In absence of proper verification, affidavits cannot be admitted in evidence."
The Supreme Court in Shivajirao N. Patil v. Mahesh Madhav Gosavi, , acknowledged the universal rule that every affidavit should clearly express how much is a statement of the deponent's knowledge and how much of the statement was in his belief, and the grounds of the belief must be stated with sufficient particularity. In Savitramma v. Cicil Narohna, , the Supreme Court was constrained to observe that affidavits are being filed in the Court in a slipshod manner without having any regard to the Rules, in spite of the fact that the Supreme Court has stressed this aspect as early as in 1952 in State of Bombay v. Purshottam Jog, . In Savaitramma's case (supra), the Court noticed that the affidavits filed were not in accordance with the provisions of the Supreme Court Rules or Order XIX, Rule 3 of the Civil Procedure Code. The Court observed that :-
"In para 2 of her affidavit she stated that the statements contained in the contempt petition were true to the best of her knowledge, belief and information. In paragraph 3 she has further stated that the affidavit had been read over, translated and explained to her and she understood the contents thereof and has further stated that the same were true to her knowledge. The affidavit is clearly vague and general and it does not comply with the requirements of a valid affidavit as laid down in Order XI Rules 5 and 13 of the Supreme Court Rules. The affidavit is defective as it does not indicate as to what facts were true to her personal knowledge, information and belief. Order XI, Rules 2 of the Supreme Court Rules lays down that evidence in support of an application may be given by affidavit in the Supreme Court. Rule 5 provides that affidavit shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated. Rule 13 provides that in the verification of petitions, pleadings or other proceedings statement based on personal knowledge shall be distinguished from statements based on information and belief. In the case statements based on information the deponent shall disclose the source of the information. Similar provisions are contained in Order 19, Rule 3 of the Code of Civil Procedure. Affidavit is a mode of placing evidence before the Court. A party may prove a fact or facts by means of affidavit before this Court but such affidavit should be in accordance with Order XI, Rule 5 and 13 of the Supreme Court Rules. The purpose underlying Rules 5 and 13 of Order XI, of the Supreme Court Rules is to enable the Court to find out as to whether it would be safe to act on such evidence and to enable the Court to know as to what facts are based in the affidavit on the basis of personal knowledge, information and belief as this is relevant for the purpose of appreciating the evidence placed before the Court in the form of affidavit. The importance of verification has to be judged by the purpose for which it is required. It is only on the basis of verification, it is possible to decide the genuineness and authenticity of the allegations and the deponent can be held responsible for the allegations made in the affidavit. In this Court evidence in support of the statements contained in writ petitions, special leave petitions, applications and other miscellaneous matters, is accepted in the form of affidavit filed by the parties concerned. It is therefore necessary that the party stating facts must disclose as to what facts are true to his personal knowledge, information or belief. If the statement of facts is based on information the source of information must be disclosed in the affidavit. An affidavit which does not comply with the provisions of Order XI of the Supreme Court Rules, has no probative value and it is liable to be rejected. In a matter where allegations of mala fides or disobedience of the Courts order are made against a person or party it is all the more necessary that the person filing affidavit in this regard must take care to verify the facts stated in the affidavit strictly in accordance with the Rules 5 and 13 of Order XI of the Supreme Court Rules."
10. Thus, the affidavit has to be in conformity with Rule 7 of the Contempt of Court (Gujarat High Court) Rules, 1984 and Order XIX Rule 3 of the Civil Procedure Code.
11. It would further be necessary to say about the person/persons impleaded as respondents in the present contempt application. Respondent contemners in the present application are (1) Director General and Inspector General of Police, Gujarat State and (2) State of Gujarat (to be served through Secretary, Home Department, Sachivalaya, Gandhinagar. It would be seen that the name of the persons charged has not been given as a contemner -respondent in this application. A proceeding in contempt is by its nature a proceeding in personam. A Division Bench of the Calcutta High Court in Tarafatulla Mandal v. S.N. Maitra, reported in AIR 1952 Cal 914 : (1953 Cri LJ 136), disapproved the practice of implcading the State as represented by some particular individual in contempt proceedings. Their Lordships observed that nothing has been less accurate or more ridiculous than to ask that a particular State should itself will be committed to prison, or that the State should be regarded as personified in some individual officer nominated by the complainant, and should be committed to prison in the person of that Officer. In the said case, the party impleaded was State of West Bengal represented by Shri S. Banerjee, Secretary, Department of Land and Land/ Revenue. The Court found that the petitioner did not adopt the correct procedure for impleading Shri S. Banerjee as an individual as a contemner-respondent. The Court set down the law with respondent to impleading of a party in a contempt application as under :-
"As the practice of impleading the State as represented by some particular individual is becoming common in contempt proceedings, it seems necessary to point out what the correct procedure is. Nothing can be less accurate or more ridiculous than to ask that a particular State should itself be committed to prison, or that the State should be regarded as personified in some individual officer nominated by the complainant, and should be committed to prison in the person of that officer. The State is not a minor, or a lunatic, or a Hindu deity that it can be represented by anyone in the manner sought to be done in the present petition. Nor is it a body corporate. Even when the Union of India, or one of the component States is sought to be made a party, it is to be impleaded in the manner and the name indicated in the Constitution itself. To implead the Union, or one of the States as represented by some particular officer, whether in Civil or Criminal Proceedings, is not warranted by any provision of law, and as far as Criminal Proceedings are concerned, is particularly inappropriate. As I have already indicated, what the petitioners seem to have in-contemplation is that, for the purposes of the present case, Shri S. Banerjee should be treated as the personification of the State of West Bengal and that to commit him to prison would be committing the State. If that be correct, then, in the event of the petition succeeding, this State will stand committed to prison and dwell there in the person of Shri S. Banerjee during the period of our pleasures. Nothing, as I have pointed out, can be more ridiculous than that."
12. Thus, name of the individual is required to be given who is alleged to have disobeyed the directions of the Court. It is not only giving name of the contemner, but there must be a specific pleading as to how that individual was responsible for carrying out the orders or directions of the Court. All necessary particulars as to knowledge by the said officer, and as to how he dealt with the matter are required to be specifically given in the petition. In fact, a contempt proceeding cannot be proceeded with in absence of an individual person being a party as contemner, who is required to be charged of the alleged act of wilful disobedience of the order or directions of the Court. It is made clear that we do not say that at no stage, a State or Corporation cannot be a party in a contempt application. In addition to the individual, the presence of the State or the Corporation etc. would be useful in identifying the individual officer concerned who should be charged for the contempt
13. Taking the case in hand, if it is found that the directions of this Court have been wilfully disobeyed, the next question would arise who should be committed to prison for the said act. Should the State of Gujarat-respondent No. 2 be committed to prison or the Director General and Inspector General of Police, Gujarat State? The judgment complained of was delivered in October 1989. Therefore, the directions were to be complied with by the incumbent who was holding the Office of the Director General and Inspector General of Police in the month of October 1989 and subsequent months. Now we are in 1995 and during this period, number of persons might have held the Office of the Director General and Inspector General of Police. If a person is to be punished because of his holding an Office, then the present incumbent who is holding the Office of the Director General and Inspector General of Police, will have to be committed to prison or the one who has filed the affidavit, namely: Mr N.K. Bhandari, Dy. Inspector General (Admn), Gujarat State. There is nothing to show how these Officers were responsible for carrying out the directions of this Court. Simply because Mr. Bhandari has filed the affidavit on behalf of the State of Gujarat, he cannot be said to be the person responsible for" carrying out the directions issued by this Court in the year 1989. Therefore, in a contempt matter, there has to be a precise and accurate statement specifying the name of the individual person who, at a particular moment, held the office and was charged to carry out the directions of the Court, and has wilfully not carried out the said directions. No matter whether the Officer has been transferred or retired, but the proceedings can be initiated and proceeded against him under the provisions of the Contempt of Courts Act, 1971, provided that the matter has not become stale. If the order or direction is not complied with and if such disobedience continues, subsequent incumbents can be added as contemner-respondent..
14. In the reply filed by the respondent, an objection has been taken that there is a prohibition contained in Section 20 of the Contempt of Courts Act to initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed.
15. It may be stated that promptness is the essence of contempt proceedings and stale matter should ordinarily be not taken in contempt proceedings. A Division Bench of this Court in Dineshbhai v. Kripalu Co-operative Housing Society, has held that the condition precedent to exercise of Court's power under the Act is that the proceedings are initiated by a Court on its own motion or otherwise within a period of one year as provided under Section 20 of the Act. In the present case, the directions of this Court given in the judgment dated 27-10-1989, are alleged to have been not complied with. The contempt application in this regard has been filed on 16-10-1991. Limitation has not to be computed from the date of filing the petition, but from the date of taking cognizance by the Court. In this case. Rule was issued as late as on 3-3-1994. Thus, there is a specific bar for initiating proceedings under Section 20 of the Contempt of Courts Act, 1971.
16. From the aforesaid, it is evident that the present Misc. Civil Application for contempt has been filed in a routine and most casual manner. It contains neither material facts nor proper affidavit. Names of the contemners have not been given. It has also not been stated as to who was the person/ individual Officer concerned to carry out the orders. This Contempt application has not at all been filed promptly. Slackness in the pleading is unfair to the Court as well as to the parties. The main function of the rules is to provide and regulate the procedure for enforcing the rights of the parties. An accurate pleading and observance of the rules enable the Court to ascertain various points in issue between the parties and come to a speedy and clear determination of those points. It is safe to be meticulous about the rules, but not blind to the spirit of law. We are not oblivious to the rule that merits of the case should not be subordinated to technicalities of form. Non-compliance with the procedural law may not render any proceedings void, in case the party applying has taken fresh steps immediately within a reasonable time to cure the illegality just after notice. The Court has to exercise sound discretion in allowing or disallowing the parties to amend the pleadings, adding parties and of giving an opportunity of filing correct affidavits wherever it is necessary. Indulgence, cannot be given just for asking. In a given case, if the illegality is on account of routine casual approach indulgence may be refused or party may be saddled with costs.
17. In the present case, had the learned Advocate cared to read the judgment of the learned single Judge at Annexure 'A' and the order of the Division Bench at Annexure 'B' in order to digest the facts of the case and to narrate in brief while drafting this contempt application, probably he would have realised that in view of the stay order passed by the Division Bench at Annexure 'B' there would not have an occasion for filing this contempt application. It is simply stated in the application that certain directions were given by the learned Single Judge and certain directions were given by the Division Bench. It is the duty of the advocates to assist the Court by proper presentation of their case. Even the apex Court having come across several instances of casualness in the legal profession was compelled to give caution. In Re: Shri Sanjiv Datta , (1995 AIR SCW 2203) (at page 2211 of AIR SCW) it is said thus-
"Before parting with these contempt proceedings, we may voice a few words not by way of admonition but caution. Judges also belong to legal fraternity. Most of them have come from the profession and some of them have practised law for more years than they have administered it. Hence the anxiety to express the concern.
Of late, we have been coming across several instances which can only be described as unfortunate both for the legal profession and the administration of Justice. It becomes, therefore, our duty to bring it to the notice of the members of the profession that it is in their hands to improve the quality of the service they render both to the litigant-public and to the Courts, and to brighten their image in the society. Some members of the profession have been adopting perceptibly casual approach to the practice of the profession as is evident from their absence when the matters are called out, the filing of incomplete and inaccurate pleadings many times even illegible and without personal check and verification, the non-payment of Court fees and process fees, the failure to remove Office objections, the failure to take steps to serve the parties, et al. They do not realise the seriousness of these acts and omissions. They not only amount to the contempt of the Court but do positive disservice to the litigants and create embarrassing situation in the Court leading to avoidable unpleasantness and delay in the disposal of matters. This augurs ill for the health of our judicial system.
The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the Court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of Justice which is the foundation of the civilized society. Both as a leading member of the intelligentia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behaviour. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tireless role played by the stalwarts in the profession to strengthen them. They took their profession seriously and practised it with dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible. The casualness and indifference with which some members practise the profession are certainly not calculated to achieve that purpose or to enhance the prestige either of the profession or of the institution they are serving. If people lose confidence in the profession on account of the deviant ways of some of its members, it is not only the profession which will suffer but also the administration of Justice as a whole. The present trend unless checked is likely to lead to a stage when the system will be found wrecked from within before it is wrecked from outside. It is for the members of the profession to introspect and take the corrective steps in time and also spare the Courts the unpleasant duty. We say no more."
18. We hope and trust that legal profession will take the above caution given by the Apex Court in its right spirit.
19. In view of the aforesaid discussion, we find no merit in this Misc. Civil Application and the same is accordingly rejected. Rule discharged. There shall be no order as to costs.