Jammu & Kashmir High Court
Robkar vs Ashwani Gupta on 16 December, 2022
Author: Wasim Sadiq Nargal
Bench: Wasim Sadiq Nargal
h475
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
ROBSW No.2/2016
ROBKAR ...Petitioner(s)
Through:- None
V/s
Ashwani Gupta ...Respondent(s)
Through:-Mr. A.V.Gupta, Sr. Advocate with
Mr. Manik, Advocate along with
contemnor
Coram: HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
JUDGMENT
1. This Court while allowing the writ petition (SWP No.04/2016) titled Jamit Ram Parihar v. State of J&K and others vide judgment and order dated 11.11.2016 has directed the Registrar Judicial to draw contempt proceedings (ROBKAR) against the respondent herein and to issue notice to him to show cause as to why he be not proceeded against for an act of the contempt of Court committed by him.
2. While parting with the aforesaid judgment, this Court has observed as under:-
"15. This matter, however, cannot be closed with quashing of the impugned order only. It needs to be stated that the only source of information for looking into the intent of an administrative or statutory decision, like a transfer order, is the order itself or any contemporaneous record maintained in the office where said decision is taken, which can be examined by this Court as per the law laid down by 2 ROBSW No.2/2016 the Supreme Court in East Coast Railway v. Mahadev Appa Rao, AIR 2010 SC 2794 where Their Lordships have observed:-
"8. There is no quarrel with the well settled proposition of law that an order passed by a public authority exercising administrative/ executive or statutory powers must be judged by the reason stated in the order or any record or contemporaneously maintained...."
16. It needs to be emphasized that in judicial proceedings a statutory/executive authority is not expected to defend, justify or explain an order passed by him on the grounds other than those available from the order itself or the connected record and not to set up a contrary case in its pleadings, much less state untrue facts, before the court. Reference in this regard is made to Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai, AIR 2005 SC 3520 other than where their lordships have held:
"28.....When an order is passed by a statutory authority, the same must be supported either on the reasons stated therein or the grounds available there for in the record. A statutory authority cannot be permitted to support its order relying on or on the basis of the statements made in the affidavit dehors the order or for that matter dehors the record."
17. In this case it is noticed with displeasure that the official respondents in their reply have concealed the real picture and have projected a story based on untrue facts. The reply has been filed by and authenticated by his sworn affidavit by the Chief Engineer Electric M&RE Wing, Jammu, Mr. Ashwani Gupta, who is the author of the impugned order. By concealing the true picture and pleadings untrue facts, the said Chief Engineer, besides attempting to mislead this Court, has undermined the majesty of law as also the attribute of the high position held by him. The act of the Chief Engineer makes out a prima facie case of Contempt of Court and invitees and necessitates action against him."
3. It is on the basis of above quoted observations of this Court and direction, Robkar has been framed against the respondent-Ashwani Gupta 3 ROBSW No.2/2016 and he was put on notice to show cause as to why contempt proceedings be not initiated against him.
4. On being put on notice, the respondent besides appearing before the Court has filed his submissions on 17th December, 2016. At the very outset, the respondent tendered unconditional apology and placed himself at the mercy of the Court. The respondent in his submissions also tried to explain his conduct. In paragraph Nos. 5 to 7 of the submissions, the respondent tried to explain his position in the following manner:-
"5. That the answering respondent is an engineer and does not know the legal technicalities of legal drafting. The objections were drafted by the learned counsel believed to be drafted in accordance to the record furnished by the answering respondent. The objections were drafted by the learned counsel and on the instructions of the learned counsel the answering respondent signed the same. That while briefing the State counsel the answering respondent did not conceal any information and material fact and also brought to the notice of the Learned Counsel the correspondence of the Hon'ble Deputy Chief Minister.
6. That had the answering respondent any intention of concealing the true facts before this Hon'ble Court, the answering respondent would not endorse the impugned order to the office of Minister Incharge (Deputy Chief Minister). It is humbly submitted that the answering respondent had mentioned the D.O. Letter of Minister Incharge. Since the answering respondent had fully acted in good faith and the impugned order was passed as per the directions/order of Deputy Chief Minister and thereafter upon the legal advise of then Ld. Govt. Counsel signed and filed the reply before this Hon'ble Court.
7. That in taking in particular view answering respondent honestly believed that the objections were drafted by the Govt. Counsel according to the record furnished by answering respondent. The 4 ROBSW No.2/2016 answering respondent would not even in his imagination ever violate the order of this Hon'ble Court or mislead the Hon'ble Court in any manner whatsoever."
5. Mr. A.V.Gupta, learned Senior counsel assisted by Mr. Munish Sharma, Advocate, appearing on behalf of the respondent, at the outset, has submitted that in view of the fact that the respondent herein has realized his mistake and offered unconditional apology and regret for his conduct, proceedings initiated against him may be dropped. It is further submitted by the learned Senior Counsel that since respondent has retired from service, therefore, leniency may be shown to him and the proceedings initiated against him be dropped.
6. Now the question that arises for consideration is "whether the apology tendered by the respondent could be considered as unconditional or not; and whether the contemnor has shown remorse and is entitled to the benevolence of this Court?
7. The respondent has not only tendered unconditional apology but has also shown remorse to his action/conduct about which contempt proceedings have been initiated. He has tendered unconditional, honest and sincere apology.
8. The apology for criminal contempt of court should be offered at the earliest because the belated apology hardly reflects remorse, which is the essence of the purging of contempt. In the instant case, respondent/contemnor offered written apology at the first available opportunity, as the robkar was directed to be framed on 11.11.2016 and the 5 ROBSW No.2/2016 notice was issued to the respondent on 18.11.2016 and the respondent filed his submissions offering apology on 17th December, 2016.
9. The respondent-contemnor, who is present in the Court, shows remorse to his action and placed himself at the mercy of this Court. He further submits that has retired from service and may be pardoned for his conduct.
10. It appears that the contemnor is actually contrite and has offered the apology at the first available opportunity, which could be considered as unconditional and since the petitioner has shown remorse, as such, is entitled to the benevolence of this Court in discharging him from the contempt notice.
11. In view of the above, the apology tendered by the contemnor is accepted and the respondent/contemnor is discharged from the contempt notice and the proceedings in Robkar are dropped.
(Wasim Sadiq Nargal) Judge Jammu.
16.12.2022 Vinod.
Whether the order is speaking : Yes/No Whether the order is reportable: Yes/No