Central Administrative Tribunal - Jodhpur
Bal Kishan And Another vs Lt ,General R K S Kushwaha And Ors on 20 January, 2023
1 (CP No.11/2021 in OA No.441/2015)
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Contempt Petition No.290/00011/2021
in
Original Application No. 290/00441/2015
CP No.290/00011/2021 in Pronounced on : 25.01.2023
OA No.290/00441/2015 (Reserved on : 20.01.2023
CORAM
HON'BLE MRS. JASMINE AHMED, MEMBER (J)
HON'BLE Dr. NANDITA CHATTERJEE, MEMBER (A)
1. Bal Kishan S/o Sh. Puran Chand, Aged about 41 years, R/o
C/o 27 FAD C/o 56 APO PIN 909427.
2. Lal Chand Kamboj S/o Sh. Puran Chand, Aged about 38
years, R/o C/o 27 FAD C/o 56 APO PIN 909427.
.......Petitioners
By Advocate: Mr. S.K. Malik.
Versus
1. Lt. General R.K.S. Kushwaha, Director General of Ordnance
Services (OS-8C) MGO's Branch IHQ of MOD (Army) New
Delhi-110001.
2. Brigadiar A. Deshpandey, Officer-in-Charge, Army Ordnance
Corps Records PIN 900453 C/o 56 APO.
3. Col. Shubendu Pathak, Commandant 27 Field Ammunition
Depot. PIN 909427 C/o 56 APO,
........Respondents
By Advocate: Mr. B.L. Tiwari.
2 (CP No.11/2021 in OA No.441/2015)
ORDER
Hon'ble Dr. Nandita Chatterjee, Member (A)
1. The instant Contempt Petition has been filed by the petitioners alleging violation of this Tribunal's orders dated 05.12.2019 in OA No.290/00441/2015.
2. The petitioners would allege that the directions issued by this Tribunal vide its orders dated 05.12.2019, were absolutely clear and unambiguous, whereby the alleged contemnors were directed to detail the applicants for the next available General Fire Fighting Course and Senior Fire Supervisor Course at CFEES Timarpur New Delhi.
Inspite of such orders, however, 40 Firemen were detailed in the next available 162nd General Fire Fighting Course, which was ordered vide letter dated 15.04.2021 of alleged contemnor no.2 herein, but the instant applicants were excluded from participation in the said course.
Accordingly, the petitioners would allege intentional, wilful and deliberate inaction of the respondents to not to comply with the orders of this Tribunal, and, hence would claim that such 3 (CP No.11/2021 in OA No.441/2015) actions are punishable under Section 12 of the Contempt of Court Act, 1971.
3. The alleged contemnor/respondent No.3, in response to the notice issued vide this Tribunal's orders dated 29.06.2021, filed a reply to the Contempt Petition with an affidavit supporting such reply dated 16.08.2021, an additional affidavit on 21.11.2021, an initial compliance report dated 07.01.2022, and, further compliance report on 16.08.2022 respectively. In the compliance report dated 16.08.2022, the alleged contemnors have annexed as per R/3/10, a detailment order dated 30.04.2022 in which the instant petitioners have been detailed to the 163rd General Course in Fire Fighting that was scheduled to be held between 09.05.2022 to 29.07.2022 at the Skill Development Centre, Hapur, Uttar Pradesh.
Learned counsel for the alleged contemnors would fairly submit that the orders of this Tribunal dated 05.12.2019 in OA No.290/00441/2015 was challenged vide DB Civil Writ Petition No.11247/2021 before the Hon'ble High Court of Judicature for Rajasthan at Jodhpur, and, that, the Hon'ble High Court, vide its orders dated 25.08.2021, found no case for interference in the 4 (CP No.11/2021 in OA No.441/2015) orders of this Tribunal and proceeded to dismiss the said Writ Petition of the respondents/alleged contemnors herein.
4. In order to decide as to whether there is indeed any violation of the orders of this Tribunal dated 05.12.2019 in OA NO.290/00441/2015, it is necessary to refer to the exact orders of this Tribunal alleged to have been violated by the alleged contemnors herein.
Upon extracting threfrom, we would infer that this Tribunal, while disposing of the said Original Application had concluded as follows:-
"10. Given the foregoing position, it is our finding that the impugned order at Annexure A1 is both unclear and self contradictory and prima facie arbitrary in that it gives no valid reason for overlooking the claims of the applicants for being sent for hte CFEES course when their seniority vis-a-vis Shri Shish Ram and Shri Vijay Kuamr, who have been deputed for this course, has not been disputed and the respondents contend that they make this deputation on the basis of seniority.
11. The OA therefore succeeds. The respondents are directed to detail the applicants for the next available General Fire Fighting Course and Senior Fire Supervisor Course at CFEES Timarpur New Delhi."
Learned counsel for the petitioners, would submit that, this Tribunal issued its orders on 05.12.2019, and, after obtaining the certified copy of such orders, the petitioners transmitted the same to the respondents vide their application dated 12.12.2019 (Annexure CP2 to the Contempt Petition).
5 (CP No.11/2021 in OA No.441/2015)
That, although no reply was received from the alleged contemnors herein, the petitioners came to learn from a reliable source, that, vide orders dated 15.04.2021, 40 Firemen have been detailed for the 162nd General Fire Fighting Course and accordingly moved an application dated 19.04.2021 through proper channel requesting the alleged contemnors herein to detail them for the said course as directed by this Tribunal on 05.12.2019 (Annexure CP3 to the Contempt Petition).
That, on 31.05.2021, they were informed that the matter has been forwarded for preferring an appeal against the instant order of this Tribunal in the Hon'ble High Court of Judicature for Rajasthan at Jodhpur (Annexure CP4 to the Contempt Petition). Hence, learned counsel for the petitioners would vociferously agitate that while the Writ Petition bearing No.11247/2021 had only been filed on 25.08.2021 and, as because there was no Writ Petition pending in the higher forum as on 15.04.2021, the date on which the 162nd training course for General Fire Fighting had been ordered, there was a clear violation of this Tribunal's orders that the petitioners had to be detailed in the next available Fire Fighting Course that would be notified after 05.12.2019. 6 (CP No.11/2021 in OA No.441/2015)
5. Learned counsel for the alleged contemnors would, however, submit that there was a contemplation to move the Hon'ble High Court at Jodhpur to challenge the orders of this Tribunal dated 05.12.2019. Due to the emergence of the Covid-19 pandemic and consequent disruption to official work, the alleged contemnors could not arrive at an immediate decision thereon.
Learned counsel for the alleged contemnors would further submit that the respondents would, however, tender unconditional apology before this Tribunal and would swear on affidavit that there was no wilful disobedience on their part to disobey the orders of this Tribunal.
6. Learned counsel for the alleged contemnors would also furnish, in support, a decision of the Hon'ble Apex Court in the matter of Ram Kishan Vs. Tarun Bajaj 2014 0 Supreme (SC) 38 and other batch matters in which the Hon'ble Apex Court had held as under:-
"10 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 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, bonafide 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 7 (CP No.11/2021 in OA No.441/2015) 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, etc. v. V.R. Pattabiraman; AIR 1985 SC 582; Rakapalli Raja Rama Gopala Rao v. Naragani Govinda Sehararao & Anr., AIR 1989 SC 2185; Niaz Mohammad & Ors. etc.etc. v. State of Haryana & Ors., AIR 1995 SC 308; Chordia Automobiles v. S. Moosa, AIR 2000 SC 1880; M/s. Ashok Paper Kamgar Union & Ors. v. Dharam Godha & Ors., AIR 2004 SC 105; State of Orissa & Ors. v. Md. Illiyas, AIR 2006 SC 258; and Uniworth Textiles Ltd. v. CCE, Raipur, (2013) 9 SCC 753).
11. In Lt. Col. K.D. Gupta v. Union of India & Anr., AIR 1989 SC 2071, this Court dealt with a case wherein direction was issued to the Union of India to pay the amount of Rs. 4 lakhs to the applicant therein and release him from defence service. The said amount was paid to the applicant after deducting the income tax payable on the said amount. While dealing with the contempt application, this Court held that "withholding the amount cannot be held to be either malafide or was there any scope to impute that the respondents intended to violate the direction of this Court."
12. In Mrityunjoy Das & Anr. v. Sayed Hasibur Rahaman & Ors., AIR 2001 SC 1293, the Court while dealing with the issue whether a doubt persisted as to the applicability of the order of this Court to complainants held that it would not give rise to a contempt petition. The court was dealing with a case wherein the statutory authorities had come to the conclusion that the order of this court was not applicable to the said complainants while dealing with the case under the provision of West Bengal Land Reforms Act, 1955.
13. 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 (Retd.), AIR 2008 (Supp-2) SC 1837; and Three Cheers Entertainment Pvt. Ltd. & Ors. v. C.E.S.C. Ltd., AIR 2009 SC
735)."
According to learned counsel for the alleged contemnors, the contemnors were contemplating filing of the Petition ever since they have received the copy of the Tribunal's order dated 8 (CP No.11/2021 in OA No.441/2015) 05.12.2019 but during the pendency of such decision making, which was delayed by the ongoing Covid-19 pandemic, the 162nd General Fire Fighting Course was announced and once the Writ Petition was decided in favour of the petitioners, the alleged contemnors took immediate steps to detail the petitioners herein for the 163rd training course vide their orders dated April, 2022.
7. Heard. Considered.
The question that arises before this Tribunal in this contempt proceedings is whether the violation in not detailing the petitioners for the 162nd General Fire Fighting Course was an act of wilful disobedience. As held in Ram Kishan (supra), wilful excludes casual, accidental, bonafide or unintentional acts or genuine inability. The Hon'ble Court further went on to state that 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.
Upon placing reliance on Sushila Raje (supra), and Three Cheers Entertainment Pvt. Ltd. (supra), the Hon'ble Court ruled that the element of willingness is an indispensible requirement to bring home the charge within the meaning of the Act. 9 (CP No.11/2021 in OA No.441/2015)
In this backdrop, the compliance affidavits of respondent/alleged contemnor no.3 read with this Tribunal's daily orders dated 24.11.2021, are perused.
The respondents/alleged contemnors, would submit through respondent no.3 that, in compliance with the orders of this Tribunal dated 05.12.2019, an order has been issued on 30th April, 2022 in detailing the instant petitioners to the 163rd General Course in Fire Fighting for the period 9th May 2022 to 29th July 2022 (R/3/10 to Compliance Affidavit dated 16.08.2022).
Alleged contemnors would further submit, vide their compliance affidavit dated 07.01.2022, that the alleged contemnors/respondents were making serious efforts to obtain the sanction of the Ministry of Defence which was eventually made available on 02.12.2021 (R-3/5 to the compliance affidavit) upon receipt of which the petitioners were detailed for the next 163rd available General Course in Fire Fighting vide orders dated 30.04.2022.
Hence the respondents would plead that they cannot be held guilty for wilful disobedience as they had received sanctions from the Ministry of Defence after the conclusion of the 162 nd General Fire Fighting Course.
10 (CP No.11/2021 in OA No.441/2015)
The alleged contemnors have also tendered unconditional apology for the unintended delay on point of the respondents in directing such detailment.
8. Accordingly, the unconditional apology of the alleged contemnors is accepted. The alleged contemnors have substantively complied with the orders of this Tribunal regarding detailment of the petitioners to the General Fire Fighting Course and the detailment to the Senior Fire Supervisor Course would follow in terms of para 3(b) of the announcement dated 25.11.2022 of the 59 Senior Fire Supervisor Course.
This Tribunal would therefore conclude that there has been no wilful disobedience on the part of the alleged contemnors/respondents in the unintended delay in detailment of the petitioners. Hence, the contempt proceedings are dropped in terms of Rule 20(ii) of the Contempt of Courts (A.T.) Rules, 1992. Notices, if any are discharged.
(Dr. NANDITA CHATTERJEE) (JASMINE AHMED)
MEMBER (A) MEMBER (J)
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