Bombay High Court
Arts And Commerce College, Pen, ... vs State Of Maharashtra And Others on 7 September, 1993
Equivalent citations: 1994CRILJ172
JUDGMENT V.A. Mohta, J.
1. Arts and Science College, Pen, District Raigad, has filed this petition under S. 12 of the Contempt of Courts Act, 1971.
2. In a Writ petition no. 3123 of 1991 filed by the said College, a Division Bench of this Court as far back as on 21-8-1991 directed the State Government to pass appropriate orders under S. 43(4) of the Maharashtra Act No. 22 of 1974 not later than 30th November, 1991. Time limit expired, months rolled by but no order was passed and hence reminders dated 9-9-1991, 9-10-1991 and 27-2-1992 were issued, the last communication being a legal notice. All this evoked no response.
3. This contempt petition for disobedience of the order of High Court was filed on 8th July, 1992. The learned Asst. Govt. Pleader took time, even during pending of the petition no action was taken and hence rule was issued on 10th August, 1992. The matter was adjourned from time to time for nearly one year and the only indulgence shown to the Court was filing of an affidavit dated 9th July, 1993 by Shri S. R. Joshi, under Secretary to Government, Higher Education, Technical Education and Employment Department, Mantralaya Annexe, Bombay, justifying the inaction on the ground that there was a mistake in the date of communication from the Bombay University upon which the order was to be passed. No indication whatsoever about future course of action was indicated in the said affidavit.
4. The Bombay University filed an affidavit on 26th August, 1993 saying that the communication was forwarded on 20th February, 1991 and not on 6th June, 1991 as wrongly mentioned in the order of the High Court. On 27th August, 1993 the matter came up for hearing, no indication about compliance with the order was available even then and hence Shri Joshi was ordered to remain present personally in the Court on 3rd September, 1993. On 3rd September, 1993 he was present and was added as a respondent. At his request the matter was adjourned to this day. Shri Joshi has today filed an affidavit tendering an unconditional apology and saying that the order has been passed on 2nd September, 1993. The gist of his explanation for this long delay is this :
From 21st August, 1991 to 23rd September, 1992 one Shri Sharad Parab, and from 29th September, 1992 to 10th February, 1992, one Shri D. H. Tamore were the concerned officers and it was incumbent upon them to comply with the said order. On promotion he, i.e., Shri Joshi was transferred as Under Secretary to Government, Higher Education, Technical Education and Employment Department, Mantralaya, Bombay. But till 11th June, 1993 "he was not aware that the Government has committed contempt of order dated 21-8-1991 passed by this Court in Writ Petition No. 3123 of 1991." On 11th June, 1993 he received a telephonic call from the Office of the Asst. Government Pleader, Bombay asking him to see him on 14th June, 1993 in connection with the present contempt petition. Accordingly, he contacted the Asst. Government Pleader on 14th June, 1993 and got himself acquainted with the facts of the case. From the record he could not trace any communication dated 6th June, 1991 and hence he filed an affidavit on 9th July, 1993. However, it was subsequently revealed that the date 6-6-1991 was wrongly mentioned and the correct date was 20th February, 1991. Then he was busy, there was assembly sessions and for want of time he was unable to give attention to the matter. After the assembly sessions ended, he passes an order on 2nd September, 1993.
5. During the course of the hearing, on our questioning, Shri Gokhale, learned Asst. Government Pleader appearing for Shri Joshi informed us after taking instructions from him that Shri Joshi had discovered the mistake in the date of University communication on 3rd July, 1993, assembly sessions commenced on 4th July, 1993, sessions ended on 31st July, 1993 and he studied the file in 1st week of August, 1993.
6. Now, the disobedience of the order of the High Court and commission of the contempt is undisputed. Apology tendered is unconditional, but does not appear to be bona fide. The course and sequence of events - which has become common these days - is first the callous indifference to Court orders, then some lame excuses and justification, and as a last resort to tender apology to get rid of the situation on the assumption that Courts sparingly use the discretion of punishment under the Contempt of Courts Act. The apology tendered before us does not impress as an act of penitence or good grace but appears to have been tendered as a tactful move when in tight corner, to ward off the Court.
7. There has been nearly two years delay in complying with the order of the Court. It is true that Shri Joshi cannot be faulted for the delay prior to 10th February, 1993 when he took charge of the office. He had no hesitation in finding fault with his predecessors, who even according to him, were guilty of contempt of Court. For months he did not open the file. On 11th June, 1993 he was told about these proceedings by the Asst. Government Pleader, whom he contract on 14-6-1993, but those not to look into the matter in between or even thereafter for a long time. Even after receiving the full briefing and knowing full facts, he not only did not bother to taken steps to comply with the order but also had the audacity of filing a late affidavit on 9th July, 1993 indicating that because of the mistake in the date of communication from the University office he could not comply with the order. Mistake has been discovered from the record by him only which means he could have discovered it earlier also. There was only one communication from the University in this matter and that too even before the High Court had passed the order in which also the same mistaken date is mentioned. This mistake thus has been put forth as an excuse mala fide. Even according to him the mistake was discovered on 3rd July, 1993. His explanation for not complying with the order even thereafter on the ground of his being busy, merely displays his callous and reprehensible attitude of indifference and defiance. Order was not complied with even though assembly sessions was over on 31st July, 1993. According to him he studied the file in first week of August, 1993. For nearly two weeks thereafter also no order was passed. He was called upon on 27th August, 1993 to remain present in the Court on 3rd September, 1993, when also no affidavit about compliance with the order was filed. On that day he was added as a party in these proceedings in his individual capacity and now he has taken a stand that the order has been passed a day before. Story put up in defence, thought seriously advanced, looks ridiculous.
8. We are therefore not inclined to accept the apology though it is unconditional. What punishment is the next question. Day in and day out, the law abiding aggrieved persons are bringing to the notice of the courts the increasing instances of scant regard to the orders of Court particularly by the bureaucracy. Authority of the Court is being eroded, giving serious blow to the very concept of rule of law. Courts do not resort to punishment under the Contempt of Courts Act as a matter of course. The power is used sparingly. But it appears that wrong signal are given by that generous attitude. Punishment is not for the Judges who have passed the judicious impersonal order, but is for protecting those law abiding persons who by compulsion and not by choice, are driven to courts. Offence is thus in the nature of sui generis and courts cannot continue to be mere silent spectators to what is happening when there is a duty to act. With wilful defiance the Court has to grapple with loofs of steel, for the punishment is intended to have deterrent effect upon those who are similarly inclined.
9. Taking into consideration all the relevant factors, we hold respondent No. 5 Shri S. R. Joshi guilty of contempt of Court. Mere fine will not meet the ends of Justice. He is therefore sentenced to undergo imprisonment in a Civil Prison till the rising of the Court and to pay a fine of Rs. 1,000/- in default to undergo actual imprisonment for 7 days. We clarify that confinement in the Court room till the rising of the Court will amount to undergoing the substantive sentence. Time to deposit the fine in the Court granted up to tomorrow.
10. Order accordingly.