Allahabad High Court
Dr. Vinay Mohan Van (Inre 15 Cont 2015) vs Smt. Kanchan Srivastava & 2 Others on 18 January, 2017
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 3 Case :- CONTEMPT APPEAL No. - 2 of 2015 Appellant :- Dr. Vinay Mohan Van Respondent :- Smt. Kanchan and two others Counsel for Appellant :- Dr. L.P. Mishra,Avdhesh Shukla Counsel for Respondent :- C.S.C. Hon'ble Sudhir Agarwal,J.
Hon'ble Ravindra Nath Mishra-II,J.
1. Heard Dr. L.P. Mishra, learned Senior Counsel assisted by Shri Avdhesh Shukla, Advocate, appearing for appellant and learned Chief Standing Counsel.
2. This appeal under Section 19 of Contempt of Courts Act, 1971 (hereinafter refereed to as "Act, 1971") has arisen from judgment and order dated 25.5.2015 passed by learned Single Judge in Criminal Misce. Case No.15 (C) of 2015 (Km Kanchana Srivastava and another Vs. Dr. Vinay Mohan Van and another), whereby learned Single Judge has discharged contempt notice and disposed of contempt petition with a direction to Principal Secretary concerned to record misconduct entry in service record of appellant and a censure entry for his behaviour in Court as mentioned in charges framed under contempt. Relevant extract of order is reproduced as under:-
"The charges were framed on 21st April, 2015. Time was granted twice to the opposite party to file reply to the charges. The reply has been filed in the registry. It has also been informed that so far compliance of the order is concerned, full compliance has been made. Details have been shown to the Court.
Senior counsel Dr. L. P. Mishra had also put up in appearance on behalf of the contemnor and pleaded that the contemnor is very remorseful about his conduct. The behaviour shall not be repeated. Similar request has been made by Ms. Bulbul Godiyal, learned Additional Advocate General.
The Courts are never meant to spoil the career of any officer. At the same time, message has to be sent to the officers that deliberate and willful disobedience will not be appreciated. It is a mechanism which ensures that the rights of people are protected and ensured. It is a mechanism which if diluted will be anti litigant. Any personal relaxation or misplaced sympathy with conduct of a contemnor will jeopardize the whole scheme of Contempt of Courts Act. However, since counsels have assured that the contemnor has really realized his mistake, the Court is inclined to take an extra lenient view in this matter. He is absolved so far the compliance of the Court's order is concerned. But the Court painfully records its displeasure over the manner in which he has conducted himself in this Court. Although he has tried to explain his conduct but the Court even at its best leniency will not be correct and justified in law to let the contemnor go scot free after his attitude to the Court in the matter.
Accordingly, Principal Secretary concerned is directed to record misconduct entry in his service record and a censure entry for his behavior in the Court as mentioned in the charges framed against the contemnor. So far other things are concerned, the Court finds that remorseful officer will be well guided in future by this order and he will not commit any contempt of the Court.
The notices are discharged.
Petition is finally disposed of."
3. Learned Senior Counsel contended that while exercising powers under Act, 1971, Court can impose any punishment prescribed therein or may discharge contemner and dismiss contempt petition, but cannot pass an order, imposing itself or directing any authority to impose punishment, not prescribed under Act, 1971, but is governed by statutory service rules framed under proviso to Article 309 of Constitution of India.
4. If Court is satisfied that there is any deliberate disobedience or defiance or any other such act so as to constitute contempt of Court, it is empowered to impose punishment prescribed under Section 12 of Act, 1971, but without imposing any such punishment, straightaway directing employer to impose minor punishment provided under Service Rules is not permissible. A procedure is provided under Service Rules, which cannot be ignored even in contempt proceedings.
5. Punishment for contempt of Court is provided under Section 12 of Act, 1971 and it provides punishment of simple imprisonment for a term which may extend to six months or with fine which may extend to two thousand rupees, or with both. No other punishment has been prescribed under Act, 1971. Additional and separate punishment not authorized by law cannot be granted and this has been deprecated by Courts time and again.
6. In Triveniben Vs. State of Gujarat and others (1988) (4) SCC 574 Court has observed that ''Additional and separate' punishment not authorized by law is not permissible. This has been referred and followed in Shatrughan Chauhan and another Vs. Union of India and others (2014) 3 SCC 1.
7. In Vijay Singh Vs. State of U. P. and others 2012(5)SCC 242 while dealing with the question of imposition of penalty in disciplinary proceedings not provided under Rules, Court said that undoubtedly, in a civilized society governed by rule of law, the punishment not prescribed under the statutory rules cannot be imposed.
8. Principle enshrined in Criminal Jurisprudence to this effect is prescribed in legal maxim "nulla poena sine lege" which means that a person should not be made to suffer penalty except for a clear breach of existing law. Contempt proceedings are also in the nature of criminal proceeding hence a punishment not provided in statue, in whatever manner, cannot be directed. This Court in directing for recording of misconduct entry and censure while dealing with a contempt case, has caused a complete non-observance of rules. These are statutory rules, which provide a particular procedure before awarding "Censure", which is a minor punishment, under the Rules. We have no hesitation in holding that it could not have been done.
9. In view of above, impugned judgment cannot be sustained in so for as it directs Principal Secretary concerned to award "misconduct entry" and Censure" to appellant. To this extent it is hereby set aside. Notice shall remain discharged.
10. Appeal is allowed.
Order Date :- 18.1.2017 Arvind