Gujarat High Court
Patani Narayanbhai Govindbhai vs Kirankumar A Patel , The Secretary on 9 October, 2023
Author: Ashutosh Shastri
Bench: Ashutosh Shastri
NEUTRAL CITATION
C/MCA/1170/2023 ORDER DATED: 09/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION (FOR CONTEMPT) NO. 1170 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 19047 of 2021
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PATANI NARAYANBHAI GOVINDBHAI
Versus
KIRANKUMAR A PATEL , THE SECRETARY
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Appearance:
MS DIMPLE A THAKER(6838) for the Opponent(s) No. 4
NOTICE SERVED BY DS for the Opponent(s) No. 1,2,3
MS DHARITRI PANCHOLI, AGP for the OPPONENT-STATE
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 09/10/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)
1. By way of this contempt petition, applicants have alleged that there is a willful defiance of the direction issued by learned Single Judge in an order dated 23.3.2022 passed in Special Civil Application No.19047 of 2021.
2. The case in brief posted before is that applicants were appointed as Junior Clerks in the year 2015 and on completion of two years, i.e. in 2017, all applicants became eligible for appearing in Lower Level Departmental examination and on account of question paper-5 and its syllabus was not decided by Page 1 of 22 Downloaded on : Thu Oct 12 20:37:43 IST 2023 NEUTRAL CITATION C/MCA/1170/2023 ORDER DATED: 09/10/2023 undefined department right from 2015 till 2021, examination could not be conducted from 2015 till 2021. According to applicants, even forms for examination were already available with the respondents, but it was not sent on time during the year 2021 and as such, applicants could not appear in the examination conducted in March 2021. It is only on account of captioned writ petition and the judgment which came to be passed, the department conducted Lower Level Departmental examination, and the applicants passed the said Lower Level Departmental examination in the first attempt itself, however promotion to the post of Senior Clerk was ordered in October 2022 without giving effect from 2020 and provisional list was prepared on 13.6.2023, wherein also seniority was not considered from the date of eligibility, i.e. 2020, which according to the applicants, is directly amounting to contempt of the judgment passed by learned Single Judge dated 23.3.2022, as such present contempt petition.
3. Pursuant to notice issued by the Coordinate Bench of this Court on 21.7.2023, respondent authority has submitted affidavit-in-reply on behalf of respondent No.1 and deponent Page 2 of 22 Downloaded on : Thu Oct 12 20:37:43 IST 2023 NEUTRAL CITATION C/MCA/1170/2023 ORDER DATED: 09/10/2023 undefined Zonal Officer and Superintending Engineer, Ahmedabad Irrigation Project, Ahmedabad Circle by pointing out that there is no willful disobedience of the order or direction passed by the Hon'ble Court. In addition to this, Further Affidavit has also been submitted by respondent No.2, whereby more clarification is submitted to point out that there is no willful disobedience of the direction issued by learned Single Judge in an order dated 23.3.2022 and as such requested to drop the proceedings. Since no rejoinder is submitted nor any request is made, hearing of the contempt petition was taken up upon request of learned advocate appearing for the applicants and learned Assistant Government Pleader since pleadings have been completed.
4. Learned advocate Ms. Dimple A. Thaker appearing on behalf of applicants has submitted that there is a clear violation of the order passed by learned Single Judge of this Court dated 23.3.2022. It has been submitted that not only seniority is protected, which otherwise ought to have been considered with effect from 2020, even promotion to the post of Senior Clerk was ordered in October 2022 and not with effect from 2020 though there is a clear direction issued by the Court and as such Page 3 of 22 Downloaded on : Thu Oct 12 20:37:43 IST 2023 NEUTRAL CITATION C/MCA/1170/2023 ORDER DATED: 09/10/2023 undefined action on the part of the respondent authority is clear in conflict with the decision delivered by the Court.
5. Learned advocate Ms. Thaker has submitted that this order which has been passed by learned Single Judge is passed after extensive hearing and after considering every circumstance placed before the Court and detailed order is passed on 23.3.2022 and still considerable long time has elapsed, according to her, there is disobedience committed by not observing the directions in its true letter and spirit. By referring to paragraphs 14 and 15, a contention is raised that non-compliance is clearly visible, accordingly appropriate steps be taken against the erring officers/ authority under the provisions of the Contempt of the Courts Act. Ms. Thaker has further submitted that though there is a clear observation made by learned Single Judge that upon completion of two years, applicants- petitioners became eligible to appear in the departmental examination in the year 2017, but it is only on account of non-conducting of examinations at relevant point of time, applicants were put to jeopardy and this fact has also been clearly noticed by learned Single Judge and as such, the order is Page 4 of 22 Downloaded on : Thu Oct 12 20:37:43 IST 2023 NEUTRAL CITATION C/MCA/1170/2023 ORDER DATED: 09/10/2023 undefined passed directing the authority as mentioned in para 15 of the order. It has also been clearly observed by learned Single Judge in para-12 that examinations were held in March 2021, but details were not sent in time and as such, petitioners could not appear in the departmental examination of March 2021. Hence, by issuing appropriate directions, petition was allowed and this order having not been observed, a clear case is visible which may attract the provisions of the Contempt of Courts Act and as such, requested to take an appropriate action as prayed for.
6. At this stage, learned advocate Ms. Thaker has submitted that though a circular was pointed out before learned Single Judge at the time when hearing took place and by virtue of the circular also, applicants were entitled and as such rightly directions were issued upon the authority. Of-course, she has candidly admitted that such reference of circular is not borne out from the order and at this stage, she has no such copy of said circular and as such, various attempts were made to drag on the hearing by asking time under the guise of said circular. However, since the same is objected, we deemed it proper to continue with the hearing since facts are evidently made clear Page 5 of 22 Downloaded on : Thu Oct 12 20:37:43 IST 2023 NEUTRAL CITATION C/MCA/1170/2023 ORDER DATED: 09/10/2023 undefined from the pleadings.
7. Learned Assistant Government Pleader appearing on behalf of respondent authority has drawn our attention to the affidavit-in-reply and raised a defense that conjoint effect of the rule of relevant Rules, namely Gujarat Civil Services (condition of Services relating to Departmental Examination (General) Rules 2015, petitioners were not entitled to appear in examination immediately upon completion of two years period from date of appointment and apart from that, the directions if to be looked into, are not in any case violated by the respondent authority and therefore, bonafide interpretation of Rules which is not permitting the case of the applicants to be considered in absence of any positive direction, it is not open for the applicants to contend that any contemptuous act is committed by the authority. By referring to the detailed affidavit which has been filed in later point of time, affirmed on 6.10.2023, learned Assistant Government Pleader has referred to paragraphs 14 and 15 of the order passed by learned Single Judge and thereby contended that seniority no-doubt is taken care of by the authority and upon instruction of the officers who are present in Page 6 of 22 Downloaded on : Thu Oct 12 20:37:43 IST 2023 NEUTRAL CITATION C/MCA/1170/2023 ORDER DATED: 09/10/2023 undefined the Court has submitted that their seniority would be protected with effect from 2020 and further it has been assured that directions if not observed, same will be taken care of and process will be completed within a period of four weeks as approval from various departments is awaiting and such compliance would be subject to outcome of Letters Patent Appeal which has been filed against the order passed by learned Single Judge and by tendering unconditional apology, it has been reiterated that no clear case of contempt is made out by the applicants and as such contempt petition may be disposed of.
8. In addition thereto, it has been submitted that if there is any confusion prevailing as per the applicants, then applicants are at liberty to move an appropriate application for seeking clarification, but certainly when their seniority is being protected, as assured, from the year 2020, there is hardly any case made out to initiate action against the authority. Looking to the law laid down by Hon'ble Apex Court in recent past in respect of jurisdiction of contempt of Court, in respectful submission of learned Assistant Government Pleader, this is not Page 7 of 22 Downloaded on : Thu Oct 12 20:37:43 IST 2023 NEUTRAL CITATION C/MCA/1170/2023 ORDER DATED: 09/10/2023 undefined a fit case in which a clear case of contempt is made out and as such has requested to dismiss the petition.
9. Having heard learned advocates appearing for the parties and having gone through the order passed by learned Single Judge, directions which are issued deserve close observance to ascertain as to whether any deliberate and willful defiance of the order is made by an authority to violate the directions. It is undisputed position as recorded in the order passed by learned Single Judge, that these applicants are working as Junior Clerks under the Narmada Water Resource, Water Supply and Kalpsar Department and have prayed for direction to promote them to the post of Senior Clerk to which they became eligible upon completion of 5 years service from the date of their appointment as junior clerk and further it has been prayed that the promotion be given to the petitioners to the post of Senior Clerks subject to the outcome of the departmental examination that the respondents may undertake as the examinations were long overdue but was not taken. This is the premise on which the applicants have presented their petition.
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10. After hearing both the sides and after close perusal of the material on record, it has been observed by learned Single Judge in paragraph-10 that, "admittedly therefore for being considered for promotion to the post of Senior Clerk in accordance with the Senior Clerk Rules, the petitioners have completed five years service and have passed the computer examinations. The only requirement therefore that the petitioners need to complete in order to be considered for promotion to the post of Senior Clerk is passing of the departmental examinations" and for that purpose, a reference is made to Rule 3 of the Rules, called as Senior Clerk, Class-III, in the Subordinate Service of the Non- Secretariat Department and Offices of Recruitment Rules. On the basis of the said Rule, it has also been observed that it is an admitted position that from the year 2014 to 2021, department has failed to conduct any examination and examinations were held as mentioned in paragraph-12 only in March 2021 and though details were to be sent prior to 20.5.2021, same were not sent on time and petitioners could not appear in examination of March 2021 though being eligible. But, at the same time, learned Single Page 9 of 22 Downloaded on : Thu Oct 12 20:37:43 IST 2023 NEUTRAL CITATION C/MCA/1170/2023 ORDER DATED: 09/10/2023 undefined Judge has observed in paragraph-14 that it is an admitted position of the department that though the petitioners were eligible in the year 2017 who have completed five years in 2020 and gained eligibility for appointment by promotion, the departmental examination could not be held. But, the fact remains, which is not in dispute, that five years are completed in the year 2020. At the same time, it has been observed in paragraph-14 in later part that once the petitioners have passed lower level departmental examination within three prescribed chances, their seniority inter-se in promotion shall be governed by Rule 5(a) and for the purpose of their seniority, vis-a-vis direct recruits, shall be governed subject to Rule 5(a) from the date of their completion of five years as Junior Clerks as are indicated in the table and it is in this factual matrix, directions appear to have not been issued. It is also not in dispute that these applicants have completed five years in the year 2020 and as such in the light of the aforesaid circumstance, learned Assistant Government Pleader has rightly pointed out the effect of Rule 4 and Rule 5 of the Gujarat Civil Services (Conditions of Service relating to Departmental Examination) (General) Rules Page 10 of 22 Downloaded on : Thu Oct 12 20:37:43 IST 2023 NEUTRAL CITATION C/MCA/1170/2023 ORDER DATED: 09/10/2023 undefined 2015, which is undisputedly applicable in the case of the applicants. Rule 4 is dealing with eligibility to appear in examination which reads as under:-
"4. Eligibility to appear in examination.- No person shall be eligible to appear at the departmental examination unless he has completed two years' service after his regular appointment on the post mentioned in part-I of part-II of Appendix-A as the case may be."
11. Effect of this Rule is that no person shall become eligible to appear in departmental examination unless he has completed two years after his regular appointment on the post mentioned in part-I and part-II of Appendix-A, meaning thereby after completion of five years, for treating him as regular appointee, he shall have to complete two years service and as such would become eligible after 7 years as per the submission of learned Assistant Government Pleader and applicants would then have a chance to first appear in the examination of May 2022. Overall discussion which has led the direction in an order is not appearing to be deliberate or willful disobedience and here at this stage, we may also refer to Rule 5 which deals with specified chance for passing relevant examination. Rule 5(a) reads as under:-
Page 11 of 22 Downloaded on : Thu Oct 12 20:37:43 IST 2023
NEUTRAL CITATION C/MCA/1170/2023 ORDER DATED: 09/10/2023 undefined "5. Specified Chance for passing relevant Examination,- A person shall require to pass such departmental examination within three chances. To appear in the departmental examination up to three chances, no examination fees shall be required to be paid. After the third chance the person shall be eligible to appear in the departmental examination at any time on payment of an examination fees as may be determined by the Government:
(a) The person shall not be entitled to claim seniority over those persons who have passed the departmental examination earlier than him and also have been promoted to the higher post before he became eligible for such promotion on passing such departmental examination after three chances."
12. Of-course, the Court is not examining merit or de-merit of the claim of applicants, but on the basis of this effect of Rules 4 and 5, a defense is raised by respondent authority as to whether there is any willful disobedience on the part of the authority or not and for that purpose, reference is made to rules.
13. In the light of this, a perusal of the averments which have been made by an authority in the affidavit of August 2023, we deem it proper to incorporate paragraph-10 hereunder:-
"10. In Para: 14, Hon'ble high court has given the directions subject to Rule 5 (a) and consider the seniority of the said petitioners vis-à-vis direct recruits which means the seniority of the petitioners should be protected if direct recruits come first. Moreover, the whole directions of this para is also subject to Rule 5 (a) and Rule 5 (a) will only be applicable in the case where any junior employees get promotion before senior employees. Which means, according to the judgment, only in the scenario where the direct recruits are appointed first then accordingly the seniority of the petitioners should be counted from the date of completion of five years of service subject to Rule 5(a). But in this case, there is no junior Page 12 of 22 Downloaded on : Thu Oct 12 20:37:43 IST 2023 NEUTRAL CITATION C/MCA/1170/2023 ORDER DATED: 09/10/2023 undefined employees including direct recruits are appointed as senior clerk before the petitioners got promoted. And also, while concluding in the Para: 15 of the judgment, this Hon'ble High court has clearly direct to protect the seniority of the petitioner's vis-à-vis direct recruits. As, the petitioners have been promoted first and also they are appointed as senior clerk right before the direct recruits, their seniority is already protected in this case as per the directions given in the judgment. Hence, this present contempt petition is needs to be dismissed, as it is complied."
14. In addition to this, so as to examine as to whether, is there any willful or deliberate or intentional disobedience of the direction or not, we may further peruse the affidavit filed later in point of time dated 6.10.2023, wherein also, an intention is declared that appropriate procedure shall be complied with within a period of four weeks since approval from various departments would be required and further the same will be done subject to outcome of the Letters Patent Appeal which is filed and pending for adjudication. Simultaneously, unconditional apology has also been submitted in a categorical term. We deem it proper to quote paragraphs 6 and 7 of the said affidavit hereunder:
"6. I say and submit that the Respondent shall undertake appropriate procedure for complying direction issued by the Hon'ble Court and the same will be completed within 4 weeks as approval from various department would be required. It is further submitted that the compliance will be done subject to Page 13 of 22 Downloaded on : Thu Oct 12 20:37:43 IST 2023 NEUTRAL CITATION C/MCA/1170/2023 ORDER DATED: 09/10/2023 undefined the outcome of Letters Patent Appeal filed before the Hon'ble Court and which pending adjudication before this Hon'ble Court.
7. I tender my sincere and unconditional apology for the inconvenience caused to the Hon'ble Court once again. The deponent thus humbly solicits for apologies as there was a delay in complying the order of the Hon'ble Single Judge and there was no action or inaction on deponent's part which may amount to will-full disobedience of the order of this Hon'ble Court and hence the contempt proceedings be dropped in the interest of justice."
15. From the conjoint reading of the aforesaid discussion and observations and effect of Rules, there appears to be no willful disobedience or intentional or deliberate attempt to disobey the directions issued by the Court and furthermore, when statement in a categorical term has been made by learned Assistant Government Pleader on instruction of Mr. M.L. Patel, Superintending Engineer, who is personally present and instructed that seniority aspect would be taken care of from the year 2020, hence element of willful disobedience is missing in the present proceedings and as such we are not inclined to exercise our contempt jurisdiction since no clear case of contempt is made out.
16. At this stage, we remind ourselves to some of the observations made by the Hon'ble Apex Court on the issue of Page 14 of 22 Downloaded on : Thu Oct 12 20:37:43 IST 2023 NEUTRAL CITATION C/MCA/1170/2023 ORDER DATED: 09/10/2023 undefined contempt of the Court which indicates that the power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt. The very nature of the power casts a sacred duty in the Courts to exercise the same with the greatest of care and caution. The observations which are made in paragraph-19 of the decision of Hon'ble the Apex Court in the case of Sudhir Vasudeva, Chairman and Managing Director, Oil and Natural Gas Corporation Limited and others v. M. George Ravishekaran and others reported (2014) 3 SCC 373, we deem it proper to quote hereunder:-
"19. The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt. The very nature of the power casts a sacred duty in the Courts to exercise the same with the greatest of care and caution. This is also necessary as, more often than not, adjudication of a contempt plea involves a process of self determination of the sweep, meaning and effect of the order in respect of which disobedience is alleged. Courts must not, therefore, travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have Page 15 of 22 Downloaded on : Thu Oct 12 20:37:43 IST 2023 NEUTRAL CITATION C/MCA/1170/2023 ORDER DATED: 09/10/2023 undefined not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are explicit in a judgment or order or are plainly self evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or willful violation of the same. Decided issues cannot be reopened; nor the plea of equities can be considered. Courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon. No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above. The above principles would appear to be the cumulative outcome of the precedents cited at the bar, namely, Jhareswar Prasad Paul and Another vs. Tarak Nath Ganguly and Others[3], V.M.Manohar Prasad vs. N. Ratnam Raju and Another[4], Bihar Finance Service House Construction Cooperative Society Ltd. vs. Gautam Goswami and Others[5] and Union of India and Others vs. Subedar Devassy PV[6]."
17. Yet another decision of recent time of Hon'ble the Apex Court in the case of Dr. U.N. Bora Ex. Chief Executive Officer and others v. Assam Roller Flour Mills Association and Another reported in (2022) 1 SCC 101, relevant observations we deem it proper to quote hereunder:-
"8. We are dealing with a civil contempt. The Contempt of Courts Act, 1971 explains a civil contempt to mean a willful disobedience of a decision of the Court. Therefore, what is relevant is the "willful" disobedience. Knowledge acquires substantial importance qua a contempt order. Merely because a subordinate official acted in disregard of an order passed by the Court, a liability cannot be fastened on a higher official in the absence of knowledge. When two views are possible, the element of willfulness vanishes as it involves a mental element. It is a deliberate, conscious and intentional act. What is required is a proof beyond reasonable doubt since the proceedings are Page 16 of 22 Downloaded on : Thu Oct 12 20:37:43 IST 2023 NEUTRAL CITATION C/MCA/1170/2023 ORDER DATED: 09/10/2023 undefined quasi-criminal in nature. Similarly, when a distinct mechanism is provided and that too, in the same judgment alleged to have been violated, a party has to exhaust the same before approaching the court in exercise of its jurisdiction under the Contempt of Courts Act, 1971. It is well open to the said party to contend that the benefit of the order passed has not been actually given, through separate proceedings while seeking appropriate relief but certainly not by way of a contempt proceeding. While dealing with a contempt petition, the Court is not expected to conduct a roving inquiry and go beyond the very judgment which was allegedly violated. The said principle has to be applied with more vigor when disputed questions of facts are involved and they were raised earlier but consciously not dealt with by creating a specific forum to decide the original proceedings.
9. We do not wish to reiterate the aforesaid settled principle of law except by quoting the reasoned decision of this Court in Hukum Chand Deswal v. Satish Raj Deswal, 2020 SCC Online SC 438 wherein the celebrated judgment in Ram Kishan v. Tarun Bajaj, (2014) 16 SCC 204, has been quoted. The following paragraphs would govern the aforesaid principle:
"20. At the outset, we must advert to the contours delineated by this court for initiating civil contempt action in Ram Kishan vs. Tarun Bajaj & Ors. In paragraphs 11, 12 and 15 of the reported decision, this Court noted thus:
"11. The contempt jurisdiction conferred on to the law courts power to punish an offender for his wilful disobedience/ contumacious conduct or obstruction to the majesty of law, for the reason that respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizen that his rights shall be protected and the entire democratic fabric of the society 5 (2014) 16 SCC 204 18 will crumble down if the respect of the judiciary is undermined. Undoubtedly, the contempt jurisdiction is a powerful weapon in the hands of the courts of law but that by itself operates as a string of caution and unless, thus, otherwise satisfied beyond reasonable doubt, it would neither be fair nor reasonable for the law courts to exercise jurisdiction under the Act. The proceedings are quasi criminal in nature, and therefore, standard of proof required in these proceedings is beyond all reasonable doubt. It would rather be hazardous to impose sentence for contempt on the authorities in exercise of the contempt jurisdiction on mere probabilities. (Vide V.G. Nigam v. Kedar Nath Gupta, (1992) 4 SCC 697, Chhotu Ram v. Urvashi Gulati, (2001) 7 SCC 530, Anil Ratan Sarkar v. Hirak Ghosh, (2002) 4 SCC 21, Bank of Baroda v. Sadruddin Hasan Daya, (2004) 1 SCC 360, Sahdeo v. State of U.P., (2010) 3 SCC 705 and National Fertilizers Ltd. v. Tuncay Alankus, (2013) 9 SCC 600.
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12. Thus, in order to punish a contemnor, it has to be established that disobedience of the order is "wilful". The word "wilful" introduces a mental element and hence, requires looking into the mind of a person/ contemnor by gauging his actions, which is an indication of one's state of mind. "Wilful" means knowingly intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, bona fide or unintentional acts or genuine inability. Wilful acts does not encompass involuntarily or negligent actions. The act has to be done with a "bad purpose or without justifiable excuse or stubbornly, obstinately or perversely".
Wilful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore, there has to be a calculated action with evil motive on his part. Even if there is a disobedience of an order, but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order, the contemnor cannot be punished. "Committal or sequestration will not be ordered unless contempt involves a degree of default or misconduct." (Vide S. Sundaram Pillai v. V.R. Attabiraman, (1985) 1 SCC 591, Rakapalli Raja Ram Gopala Rao v. Naragani Govinda Sehararao, (1989) 4 SCC 255, Niaz Mohammad v. State of 19 Haryana, (1994) 6 SCC 332, Chordia Automobiles v. S. Moosa, (2000) 3 SCC 282, Ashok Paper Kamgar Union v. Dharam Godha, (2003) 11 SCC 1, State of Orissa v. Mohd. Illiyas, (2006) 1 SCC 275 and Uniworth Textiles Ltd. v. CCE, (2013) 9 SCC 753.
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15. It is well settled principle of law that if two interpretations are possible, and if the action is not contumacious, a contempt proceeding would not be maintainable. The effect and purport of the order is to be taken into consideration and the same must be read in its entirety. Therefore, the element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act. [See Sushila Raje Holkar v. Anil Kak, (2008) 14 SCC 392 and Three Cheers Entertainment (P) Ltd. v. CESC Ltd., (2008) 16 SCC 592."
21. Similarly, in R.N. Dey & Ors. vs. Bhagyabati Pramanik & Ors., this Court expounded in paragraph 7 as follows:
"7. We may reiterate that the weapon of contempt is not to be used in abundance or misused. Normally, it cannot be used for execution of the decree or implementation of an order for which alternative remedy in law is provided for. Discretion given to the court is to be exercised for maintenance of the court's dignity and majesty of law. Further, an aggrieved party has no right to insist that the court should exercise such jurisdiction as contempt is between a contemner and the court. It is true that in the present case, the High Court has kept the matter pending and has ordered that it should be heard along with the first Page 18 of 22 Downloaded on : Thu Oct 12 20:37:43 IST 2023 NEUTRAL CITATION C/MCA/1170/2023 ORDER DATED: 09/10/2023 undefined appeal. But, at the same time, it is to be noticed that under the coercion of contempt proceeding, appellants cannot be directed to pay the compensation amount which they are disputing by asserting that claimants were not the owners of the property in question and that decree was obtained by suppressing the material fact and by fraud. Even presuming that the claimants are entitled to recover the amount of compensation as awarded by the trial court as no stay order is granted by the High Court, at the most they are entitled to recover the same by executing the 6 (2000) 4 SCC 400 20 said award wherein the State can or may contend that the award is a nullity. In such a situation, as there was no wilful or deliberate disobedience of the order, the initiation of contempt proceedings was wholly unjustified."
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25. Pertinently, the special leave petitions were filed by the respondent against the order dated 28.1.2019, which as aforesaid, did not deal with the question regarding the monthly rent payable by the respondent but explicitly left the parties to pursue the same before the executing Court. The plaintiff/petitioner having acquiesced of that observation of the High Court, cannot be allowed to contend to the contrary. This Court in Jhareswar Prasad Paul & Anr. vs. Tarak Nath Ganguly & Ors., in paragraph 11, opined thus:
"11. ... The court exercising contempt jurisdiction is not entitled to enter into questions which have not been dealt with and decided in the judgment or order, violation of which is alleged by the applicant. The court has to consider the direction issued in the judgment or order and not to consider the question as to what the judgment or order should have contained. At the cost of repetition, 7 (2002) 5 SCC 352 23 be it stated here that the court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party, which is alleged to have committed deliberate default in complying with the directions in the judgment or order. If the judgment or order does not contain any specific direction regarding a matter or if there is any ambiguity in the directions issued therein then it will be better to direct the parties to approach the court which disposed of the matter for clarification of the order instead of the court exercising contempt jurisdiction taking upon itself the power to decide the original proceeding in a manner not dealt with by the court passing the judgment or order. If this limitation is borne in mind then criticisms which are sometimes levelled against the courts exercising contempt of court jurisdiction "that it has exceeded its powers in granting substantive relief and issuing a direction regarding the same without proper adjudication of the dispute" in its entirety can be avoided. This will also avoid multiplicity of proceedings because the party which is prejudicially affected by the judgment or order passed in the contempt proceeding and granting relief and issuing fresh directions is likely to challenge that order and that may give rise to another round of litigation arising from a proceeding which is intended to maintain the majesty and image of courts."Page 19 of 22 Downloaded on : Thu Oct 12 20:37:43 IST 2023
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26. Thus understood, we find force in the explanation offered by the respondent that as per its bona fide understanding, there was no outstanding dues payable to the petitioner. Moreover, as observed by the High Court, these aspects could be answered by the executing Court if the parties pursue their claim(s) before it in that regard. Suffice it to observe that it is not a case of intentional violation or wilful disobedience of the order passed by this Court to initiate contempt action against the respondent. Instead, we hold that it would be open to the parties to pursue their claim(s) in execution proceedings or any other proceedings, as may be permissible in law in respect of the issue(s) under consideration. In such proceedings, all aspects can be considered by the concerned forum/Court on merits in accordance with law. We say no more.
27. Reverting to the allegation about damage caused to the suit property by the respondent at the time of vacating the same, in our opinion, the respondent has made out a formidable case that it did not cause any damage, much less permanent damage to the structure in the suit property. Whereas, the petitioner was relying on photographs concerning the debris on the site left behind at the time of vacating the suit property. The debris cannot cause damage and it is certainly not a case of defacement of the suit property. That position is reinforced from the fact that the water park in the suit premises was started and became fully functional within 2-3 months. Viewed thus, it is rightly urged that it can be safely assumed that no damage was caused by the respondent to the structure in question. Minor repairs required to be carried out by the petitioner for making the water park functional cannot be painted as intentional disobedience of the order of this Court. In any case, that being a complex question of fact, need not be adjudicated in the contempt proceedings. We leave it open to the petitioner to pursue even that claim in execution proceedings or such other proceedings as may be permissible in law. We may not be understood to have expressed any final opinion in respect of condition of the suit premises, whilst handing over possession to the petitioner. We hold that even this issue under consideration does not warrant initiation of contempt action against the respondent."
(emphasis supplied)
18. Further, the observations contained in another decision of the Hon'ble Apex Court in the case of Bordeuri Samaj of Sri Sri Maa Kamakhya v. Riju Prasad Sarma and others reported in Page 20 of 22 Downloaded on : Thu Oct 12 20:37:43 IST 2023 NEUTRAL CITATION C/MCA/1170/2023 ORDER DATED: 09/10/2023 undefined 2021 SCC OnLine 1254, are indicating that contempt jurisdiction is always discretionary which should be exercised sparingly and with circumspection. Hence, keeping in view the observations contained in paragraph-11, we are of the opinion that applicants have not made out any clear case which may permit us to initiate step(s) under the provisions of the Contempt of Courts Act and more particularly when seniority issue of these applicants is taken care of, as submitted by learned Assistant Government Pleader, and further, Letters Patent Appeal is stated to be pending, we refrain ourselves from exercising our contempt jurisdiction and as such we hereby DISMISS the present contempt petition. Notice is discharged.
19. However, this dismissal will not come in the way of the applicants to takeout appropriate proceedings which are permissible in law to ventilate their grievance and we clarify that these observations which are made are strictly to examine whether any defiance is made by the authority or not and as such, these observations may not come in the way of the applicants in any other proceedings which may take place.
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20. While parting with present order, we must indicate that we were inclined to impose costs upon the applicants for persistently pursuing the present proceedings, but looking to the overall circumstances, we refrain ourselves from imposing costs.
Sd/-
(ASHUTOSH SHASTRI, J) Sd/-
(HEMANT M. PRACHCHHAK,J) OMKAR Page 22 of 22 Downloaded on : Thu Oct 12 20:37:43 IST 2023