Allahabad High Court
Sunil Kumar vs Union Of India Through Secretary, Min. ... on 25 March, 2015
Author: Rakesh Tiwari
Bench: Rakesh Tiwari, Mukhtar Ahmad
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. 37 Case :- SPECIAL APPEAL No. - 1690 of 2009 Appellant :- Sunil Kumar Respondent :- Union Of India Through Secretary, Min. Of Culture & Others Counsel for Appellant :- Anand Kumar,D.K.Mishra,Saurabh Basu Counsel for Respondent :- Asgi,A.K. Singh,Ajay Bhanot,G.K. Singh,P.K. Singh,R.K. Singh,Raj Kumar Singh Hon'ble Rakesh Tiwari,J.
Hon'ble Mukhtar Ahmad,J.
Heard Sri G.K. Singh, appearing for contemner, Rajesh Purohit, Director, Allahabad Museum, Allahabad (hereinafter referred to as the Director) who is also present in Court.
The genesis of the present proceedings for framing of charge lies in the order dated 18.9.2014 which reads thus:
"Sri R.K. Singh, Advocate appears for respondent no.2 and Sri Akhlesh Kumar Singh, Advocate is present on behalf of respondent no.3.
Sri Akhlesh Kumar Singh, learned counsel appearing for respondent no.3 in response to a query made by the Court about the number of sanctioned posts of Safai Karmi in the museum and the number of vacancies occurred after 1996 i.e. the settlement entered into between the workmen and the Director of museum prays a day's time to inform about the same.
As prayed by him put up tomorrow peremptorily."
When the case was taken up on the next day i.e. 19.9.2014, a supplementary counter affidavit was filed by respondent no. 4, the Director but information about the number of posts as required to be furnished by him was not provided. The Court in the circumstances ordered him to be present in the Court on 22.9.2014 to explain as to why he is creating impediment in the dispensation of justice by not providing the information required by the Court for decision in the case. In its order, the Court also granted time to Sri Rajesh Purohit to support his statement regarding existence of vacancies by filing annual reports for the period 1996 to 2014 containing the position of vacancies etc. which is published by the Allahabad Museum, Allahabad. The order dated 19.9.2014 reads thus:
"Supplementary Counter affidavit filed by Sri Akhlesh Kumar Singh, learned counsel for respondent no. 3, is taken on record.
Vide order dated 18.9.2014 the Court had granted one day time to learned counsel for respondent no. 3 for providing information with regard to the number of sanctioned posts of Safai Karmi in the museum and the number of vacancies of Safai Karmi occurred after 31.10.1996 i.e. the settlement entered into between the workmen and the Director of museum before the Assistant Labour Commissioner (C), Allahabad.
In response to above, supplementary counter affidavit has been filed wherein a diagram (Annexure No. 1) showing the organizational set up of Allahabad Museum, Allahabad, indicating number of posts, their designations and pay scales has been enclosed. Along with supplementary counter affidavit a copy of decision of Executive Committee dated 4.8.2010 has been filed which is not the letter of sanction of post of Safai Karmi by the government. We may also note here that Annexure-1 has already been appended with the paper book of special appeal.
Thus information sought by this Court appears to be deliberately not provided by the Director of Allahabad, Museum and by means of supplementary counter affidavit filed by respondent no. 3, an attempt has been made by him to mislead the Court by filing irrelevant documents which amounts to impediment in dispensation of justice.
Let the Director, Allahabad Museum, Allahabad respondent no. 2 be present in the court on 22.9.2014 the next date of listing to explain as to why he is creating impediment in the dispensation of justice by not providing the required information to the Court.
As prayed, supplementary rejoinder affidavit may also be filed by the next date of listing.
Put up on 22.9.2014, i.e. Monday.
Sri A.K. Singh learned counsel for respondent no. 3 will also inform about this order today to Sri S.K. Sharma, Director (Incharge), Allahabad Museum, Allahabad/respondent no. 3."
On 22.9.2014 learned counsel for the appellant raised arguments that Sri Rajesh Purohit, the Director had filed supplementary counter affidavit in Court on 19.9.2014 under his own signatures as deponent of the said affidavit. It was urged by the counsel for the appellant that a perusal of the same shows manipulation of documents and fake averments made by the Director on affidavit. It would be relevant to refer at this stage the relevant portion of the order dated 22.9.2014 in this regard which reads thus:
"As regards, the question of filing of false affidavit as well as non compliance of the order of this Court by the Director, Allahabad Museum, Allahabad is concerned, the matter is serious in view of the fact that earlier the then Director had also not complied with the orders of this Court. Therefore, in the facts and circumstances of the case so far as the compliance of the order dated 19.09.2014 is concerned, we are of the view that Sri Rajesh Purohit, Director, Allahabad Museum, Allahabad had tried to mislead the Court by not only providing false information to the Court in counter affidavit of review application that no permanent employee is working on vacant post, but also filing tampered document (Annexure No. 11 with the counter affidavit). It is borne from record that apart from petitioner who is appointed pursuant to the order dated 26.11.2002 one more employee was working and therefore, only two posts were vacant.
Let notices be issued to the Director, Allahabad Museum, Allahabad to show cause as to why contempt proceedings and proceedings for forgery may not be drawn against him for misleading the Court by filing false affidavit with tampered document.
List before appropriate Court after three weeks."
Thus Notice for contempt was issued to Sri Rajesh Purohit vide order dated 22.9.2014 for manipulation of document and filing the same on affidavit in the Court along with supplementary affidavit dated 18.9.2014.
Sri A.K. Singh, learned counsel for the Director informed the Court that erstwhile Director Sri S.K. Sharma had retired and as such the present Director may also be arrayed as respondent no. 4 and dasti notices be issued to him for submission of his defence. The Court in the circumstances vide order dated 13.1.2015 directed for issuance of Dasti notices to Sri Rajesh Purohit pursuance thereto he was impleaded as Respondent no. 4.
When the case was again taken up on 28.1.2015 Sri G.K. Singh, learned counsel appearing for the contemner has relied upon paragraph 17 of the judgment of this Court in Re: Prof. Y. C. Simhadri, Vice Chancellor, Banaras Hindu University, Varanasi & others Vs. Deen Bandhu Pathak, (2001) 3 UPLBEC 2373 wherein following principles have been laid down:
"Thus, the following principles emerge from the foregoing discussions:
5. Contempt jurisdiction is an independent jurisdiction of original nature whether emanating from the Contempt of Courts Act or under Article 215 of the Constitution of India.
6. For exercising the jurisdiction under Article 215 of the Constitution of India the procedure prescribed by law has to be followed.
He submits that this Court should not hear the appeal as the jurisdiction of appeal is now with another Court after change of the roaster. He further submitted that in the appeal the contempt part is also to be tried by the designated court to which this jurisdiction lies as per the roaster published under the authority of the Hon'ble the Chief Justice in exercise of his powers under the Allahabad High Court Rules 1952.
The Court in view of the ratio laid down in para 15 of the judgment in aforesaid case of Y.C. Simhadri (supra) held that the argument of learned counsel for the contemner to be misconceived. The relevant extract reads thus:
" 15. It was urged before the Supreme Court on behalf of the counsel for the appellants that the Division Bench of the Allahabad High Court, Lucknow Bench at Lucknow while passing the said order did not follow the procedure prescribed by law. It was further urged that the Court had failed to give a reasonable opportunity to the appellants of being heard. It was also argued that assuming that the incident as recited in the impugned order had taken place, the Court could not have passed the impugned order on the same day after it reassembled without issuing show cause notice or giving an opportunity to the appellants to explain the alleged contemptuous conduct. It was also urged that the requirement of following the procedure prescribed by law had been overlooked by the Court. Learned Counsel of the appellants had referred to Section 14 of the Contempt of Courts Act, 1971 as also the provision contained in Chapter XXXV-E of the Allahabad High Court Rules, 1952 in support of his contention. Emphasis was laid to Rules 7 and 8, which reads as under:
7. When it is alleged or appears to the Court upon its own view that a person has been guilty of contempt committed in its presence or hearing, the Court may cause such person to be detained in custody, and at any time before the rising of the Court, on the same day or as early as possible thereafter, shall-
(a) cause him to be informed in writing of the contempt with which he is charged, and if such person pleads guilty to the charge, his plea shall be recorded and the Court may in its discretion, convict him thereon.
(b) if such person refuses to plead, or does not plead, or claims to be tried or the Court does not convict him, on his plea of guilt, afford him an opportunity to make his defence to the charge, in support of which he may file an affidavit on the date fixed for his appearance or on such other date as may be fixed by the Court in that behalf.
(c) after taking such evidence as may be necessary or as may be offered by such person and after hearing him, proceed either forthwith or after the adjournment, to determine the matter of the charge, and
(d) make such order for punishment or discharge of such persons as may be just.
8. Notwithstanding anything contained in Rule 7, where a person charged with contempt under the Rule applies, whether orally or in writing to have charge against him tried by some Judge other than the Judge or Judges in whose presence or hearing the offence is alleged to have been committed, and the Court is of the opinion that it is practicable to do so and that in the interests of proper administration of justice, the application should be allowed, it shall cause the matter to be placed, together with a statement of the facts of the case, before the Chief Justice for such directions as he may think fit to issue as respects the trial thereof.
After considering the arguments of the learned counsel for the contemner, it was held that since charges whether criminal or civil nature have not been framed as yet and the order dated 22.9.2014 is a composite order describing in detail the manner in which the contempt has been committed, hence in view of the case law read with The Allahabad High court Rules, 1952 charges are to be framed after issuance of notice to the contemnor and thereafter stamp reporter would be required to report and register the contempt proceeding separately against the concerned person. The Special Appeal has to be listed before this court till charges are framed against the contemnor, because unless and until contempt proceedings are registered separately, it cannot be shown by the registry in the cause list before the designated or nominated courts.
Registry has also informed that it is only after separate registration of the contempt proceedings that the matter is to be placed before Hon'ble the Chief Justice in accordance with Allahabad High Court Rules, for either designating or nominating a court.
We in the aforesaid circumstances, direct the registry to list this matter on 03.02.2015 for framing of charge.
In the order dated 03.02.2015, it was noted that:
"In so far as drawing of contempt proceedings against respondent no.4 is concerned,� it is a matter between the contemnor and the Court. By order dated 28.1.2015 the date is fixed for today i.e. 03.02.2015 for framing of charges against Sri Rajesh Purohit, respondent no.4.
On a query made it is informed that contemnor Rajesh Purohit is not present in Court as there is no direction for his presence today in the order dated 28.1.2015.
Put up tomorrow i.e. 04.02.2015. It is directed that respondent no.4, Sri� Rajesh Purohit present Director of Allahabad Museum, Allahabad to whom notice for contempt has been issued shall be personally present before this Court tomorrow at 10.00 A.M. for framing of charge.
Put up tomorrow. "
Pursuant to the aforesaid direction the contemner appeared in person on 4.2.2015 and desired an opportunity for explaining the shortcomings in the supplementary counter affidavit dated 18.9.2014 and also prayed for some time to substantiate his explanation. As prayed by him, the case was then fixed for 16.3.2015 when the following order was passed:
"Case is listed today for orders on review application� and on framing of charges. Advocates are on strike.
Heard appellant-Sunil Kumar who is present in person and perused the record.
Neither Sri Rajesh Purohit nor any person on his behalf is present.The review application is therefore allowed. The judgment and order dated 24.10.2009 is recalled.
On 4.2.2015 the Court passed the following order :
"Sri Rajesh Purohit, Director, Allahabad Museum, Allahabad appeared in person and desired an opportunity for explaining the shortcomings in the supplementary counter affidavit dated 18.9.2014. He has submitted his reply in the form of question answers before the Court today with regard to the aforesaid shortcomings which are on record. Sri G.K. Singh has submitted that a suppl. affidavit has also been filed on 3.2.2014, in which a day's time was granted to the appellant for filing suppl. counter affidavit and a week's time thereafter to the respondent for filing suppl. rejoinder affidavit, directing the office to list the case thereafter.
Sri Rajesh Purohit, has also prayed for some time to substantiate his answers with the records. He may produce the record on 16.2.2015.
As prayed, list this matter on 16.2.2015 for considering the question of framing of charge."
Perusal of the aforesaid order shows that Sri Rajesh Purohit, Director, Allahabad Museum, had prayed for time to explain the shortcomings in the suppl. counter affidavit dated 18.9.2014. The matter was to continue on next dates� and Sri Purohit was to be personally present for production of the records for the said purpose. Since he is not present, put up on 24.3.2015. Sri Rajesh Purohit shall be personally present on the next date for considering the question of framing of charges."
The case was passed over on 24.3.2015 as the contemner was unwell. Hence in the aforesaid circumstances the matter is listed today before us for consideration of framing of charges.
Sri G.K. Singh, learned counsel for the respondent at the out set informed the Court that his client Sri Rajesh Purohit, the Director, Allahabad Museum, Allahabad who is the contemner desires to submit unconditional apology and throws himself to the majesty and mercy of the Court.
Therefore in view of the above, we once again inquired from the contemner Rajesh Purohit as to whether he would like to stand by his averment made in paragraph no. 5 of his affidavit dated 3.2.2015 filed in reply to the show cause notice dated 22.9.2014 and his oral explanation that he had not done anything wrong as noted in the order dated 22.9.2014.
Sri G.K. Singh, appearing for Sri Rajesh Purohit informed the Court that after re-considering the documents and his explanation with regard to his stand that now his client prefers to tender an unconditional apology to the Court than justify his actions as noted in the order dated 22.9.2014 aforesaid.
It may be noted that since issuance of notice, the contemner has been trying to avoid hearing of the matter for the reason that if contempt proceedings are not registered then the same will become infructuous and only appeal would be heard by the appellate Court. The whole endeavour to frustrate the contempt proceedings appears from the following backdrop.
Sri Rajesh Purohit, Director, Allahabad Museum, Allahabad who is present in the Court also desired to tender his unconditional apology to the Court for his acts as mentioned in the order dated 22.9.2014. He has accordingly tendered his unconditional apology to the Court with folded hands and begs pardon of the Court. He also prays that the Court in its magnanimity, accept his heartfelt, sincere and bonafide apology and drop the proceeding for framing of charge in these proceedings.
The law regarding acceptance of apology may be considered by us in the backdrop of previous orders, facts and circumstances.
Section 2(a), (b) and (c) of the Contempt of Courts act, 1971 define contempt of Court as follows:
"2. Definitions.-In this Act, unless the context otherwise requires, -
(a) 'contempt of Court' means civil contempt or criminal contempt;
(b) civil contempt' means wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court;
(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 of any other act whatsoever which-
(i) scandalises or tends to scandalise, 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 proceedings; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct the administration of justice in any other manner."
Section 10 thereof provides for Power of High Court to punish contempts of subordinate Courts- It stats that every High Court shall have an exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of Courts subordinate to it as it has and exercises in respect of contempts of itself:
Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a Court subordinate to it where such contempt is an offence punishable under the Indian Panel Code, 1860 (45 of 1860)."
The punishment for committing contempt of Court is provided in Section 12 of the 1971 Act which reads:-
"12. Punishment for contempt of Court.- (1) Save as otherwise expressly provided in this Act or in any other law, a contempt of Court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both:
Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court.
Explanation- An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.
Section 10 of the 1971 Act recognises the power of High Court as a Court of Record for punishing for contempt of itself, which jurisdiction has now the sanction of the Constitution also by virtue of Article 215.
An analysis of these provision shows that sub-section (1) of Section 12 provides for punishment of the contemner with simple imprisonment by detention in a civil prison; or with fine; or with both and that the Act places an embargo on the Court not to impose a sentence in excess of the sentence prescribed under sub-section (1), whereassub-section (3) of Section 12 demonstrates that the legislature intended that in the case of civil contempt a sentence of fine alone should be imposed except where the Court considers that the ends of justice make it necessary to pass a sentence of imprisonment also dealing with imposition of punishment under Section 12 (3) of the Act.
In the case of Smt. Pushpaben and another v. Narandas V. Badiani and another, (1979) 2 SCC 394, this Court opined:
"A close and careful interpretation of the extracted section (Section 12(3) leaves no room for doubt that the Legislature intended that a sentence of fine alone should be imposed in normal circumstances. The statute, however, confers special power on the Court to pass a sentence of imprisonment if it thinks that ends of justice so require. Thus, before a Court passes the extreme sentence of imprisonment, it must give special reasons after a proper application of its mind that a sentence of imprisonment alone is called for in a particular situation. Thus, the sentence of imprisonment is an exception while sentence of fine is the rule".
Article 215 does not define as to what constitutes contempt of Court though the powers of the High Court under this Article of the Constitution is unfettered. There are no restriction or curbs on its power to punish a contemner for contempt of itself except those contained in the Contempt of Courts Act.
In Sukhdev Singh v. Hon'ble C.J.S. Teja Singh & Ors., AIR 1954 SC 454, the Apex Court while recognising that the power of the High Court to institute proceedings for contempt and punish the contemner when found necessary is a special jurisdiction which is inherent in all Courts of Record that, "the maximum punishment now is limited to six month's simple imprisonment or a fine of RS.2,000/- or both" because of the provision of Contempt of Courts Act, whereas according to Halsbury's Laws of England (4th Edn. Para 97): "There is no statutory limit to the length of the term of imprisonment which may be imposed of contempt of Court by the Court of Appeal, High Court or Crown Court.
Although there is no limit to the length of the term which may be imposed, the punishment should be commensurate to the offence. Thus, where contempt is committed owing to a mistaken view of the rights of the offender, the punishment, where imprisonment is deemed necessary, should be for a definite period and should not be severe."
Therefore following punishment can also be imposed:
Fines and security for good behaviour-The Court may, as an alternative or in addition to committing a contemner, impose a fine or require security for good behaviour.
The court may, as an alternative to committal or sequestration, impose a fine or civil contempt.
In assessing the amount of the fine, account should be taken of the seriousness of the contempt and the damage done to the public interest.
As a further alternative to ordering committal, the Court may, in its discretion, adopt the more lenient course of granting an injunction to restrain repetition of the act of contempt. The Court may also penalise a party in contempt by ordering him to pay the costs of the application.
The Court may also, in its own discretion, grant an injunction, in lieu of committal or sequestration, to restrain the commission or repetition of a civil contempt. The Court may in lieu of any other penalty require the contemner to pay the costs of the motion on a common fund basis.
The costs of an application for committal are in the discretion of the Court, and should be asked for on the hearing of the application. The respondent can as a general rule only be ordered to pay costs if he has been guilty of contempt. An action is maintainable in the Queen's Bench Division to enforce an order made in the Chancery Division to pay the costs of a motion for committal."
Thus, recognised and accepted punishments for civil or criminal contempt of Court in English Law, which have been followed and accepted by the Courts in India in so far as, civil contempt, is concerned are:
(i) Sequestration of assets;
(ii) fine; & costs
(iii) committal to prison.
The object of punishment therefore appears is both curative and corrective, which are an element of public policy for punishing civil contempt, since the administration of justice would be undermined if the order of any Court of law is to be disregarded with impunity. Apart from punishing the contemner the Court in order to maintain the Majesty of Law may burden the contemner with costs, exemplary or otherwise.
In so far as criminal contempt of Court is concerned, which charge is required to be established like a criminal charge, it is punishable by:
(i) fine; or
(ii) by fixed period of simple imprisonment or detention in a civil prison for a specified period; or
(iii) both.
Whether a contempt is serious enough or not to merit imprisonment, the Court will take into account the likelihood of interference with the Administration of justice and the culpability of the offender. The intention with which the act complained of is done is material factor in determining what punishment, in a given case, would be appropriate.
In paragraph 5 of the affidavit dated 3rd February, 2015 filed on behalf of respondent no. 4/Sri Rajesh Purohit, Director, Allahabad Museum, Allahabad, it has been averred as under:
"That at the outset the respondent no. 4 tenders an unqualified apology before the Hon'ble Court in case the Hon'ble Court is of the view that he has in any manner committed a contempt by either dis-obeying any order passed by the Hon'ble Court or in any other manner whatsoever. The deponent being a law abiding citizen cannot think of either disobeying an order passed by the Hon'ble Court or by misleading the Hon'ble Court by making any false averment. If on account of some unintentional act of the respondent the Hon'ble Court has formed a prima facie opinion that the deponent has committed contempt, then once again he tenders his unqualified apology."
In the aforesaid affidavit he has also averred that the Court may be pleased to drop the proceedings which have been initiated against him and to discharge the notices which have been issued pursuant to order dated 22.9.2014.
The matter of making false averments made in the supplementary counter affidavit dated 18.9.2014, has been narrated in the order dated 22.9.2014 passed on review application no. 313850 of 2009. It was only at the insistence of Sri Rajesh Purohit, Director Allahabad Museum, Allhabad that he desired to explain the shortcomings in the aforesaid supplementary counter affidavit dated 18.9.2014. In this view of the matter he had also been granted several opportunities for recording his statement in open Court which has been noted on separate sheets.
Sri Rajesh Purohit, Director Allahabad Museum, Allahabad, the contemner holds a high position. It does not suit to his status or post to do such acts of manipulation of records and filing them on affidavit before the court in order to mislead the Court for gaining moral victory over a poor employee. This cannot be appreciated. Despite grant of opportunities and orders of the Court he has not filed the required documents either in support of his statement or denying his contemptuous act. The proceedings for framing of charge has been taken against him after issuance of notice and providing him not only reasonable opportunity, but also full opportunity which is apparent from the orders, facts and circumstances of this case. In the circumstances, the unqualified apology tendered by respondent no.4/on the affidavits aforesaid and also orally before the Court in person, may be accepted by us with certain conditions imposed by Court. Since the punishment should commensurate with the offence, we think that it would be proper that instead of imposing imprisonment, we while accepting the apology discharge the contempt notices issued pursuant to order dated 22.9.2014 with warning to Respondent no. 4/Rajesh Purohit, Director Allahabad Museum, Allahabad, not to indulge in any such contemptuous act in future in any proceedings before the Court for his selfish gain. His conduct therefore would be under watch for a period of three years and if it is found that his any conduct is not above board the Court shall revive the proceedings and proceed in accordance with law.
Since we have accepted his apology and are not framing charge, list the special appeal before the appropriate Bench. The matter shall not be treated as tied up or part heard to this Bench.
Dated: 25.03.2015 RCT/-