Gujarat High Court
Sandip Harshadray Munjyasara vs Anju Sharma on 12 April, 2022
Bench: Aravind Kumar, Ashutosh J. Shastri
C/MCA/488/2019 ORDER DATED: 12/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 488 of 2019
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SANDIP HARSHADRAY MUNJYASARA
Versus
ANJU SHARMA
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Appearance:
PARTY IN PERSON(5000) for the Applicant(s) No. 1
MR. K.M. ANTANI, AGP, for the Opponent(s) No. 1, 5
MR. D.C. DAVE, SENIOR ADVOCATE WITH MR PA JADEJA(3726) for the
Opponent(s) No. 2 & 3
MR. AKSHAT KHARE, ADVOCATE FOR MRS SUMAN KHARE(2226) for the
Opponent(s) No. 4
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 12/04/2022
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)
1. Party-in-person who is appearing in the present proceeding seeks leave of this Court to delete the word 'Er' prefixed with his name in the cause title. Permitted to do so.
2. Amendment carried out. Accepted.
3. Heard Mr. Sandeep Harshadray Munjyasara party appearing in person, learned Senior Advocate Mr.D.C. Dave appearing for respondent Nos. 2 and 3, learned AGP Mr. Page 1 of 15 Downloaded on : Sat Dec 24 14:44:13 IST 2022 C/MCA/488/2019 ORDER DATED: 12/04/2022 K.M. Antani appearing for respondent Nos. 1 & 5 and learned advocate Mr. Akshat Khare appearing for respondent No. 4. Perused the case papers.
4. Petitioner has filed this application under section 10, 12, 14 and 17 of the Contempt of Courts Act, 1971 for initiating proceedings against the respondents for not complying with the direction issued in Letters Patent Appeal No. 453 of 2018 dated 12.06.2018.
5. On respondents being notified, a reply-affidavit has been filed by the second respondent and fourth respondent denying the averments made therein except to the extent expressly admittedly thereunder and have sought for the contempt proceedings being dropped.
6. Having heard learned advocates appearing for the parties, we are of the considered view that following point would arise for consideration : -
(i) Whether the order dated 12.06.2018 passed in Letters Patent Appeal No. 453 of 2018 has been willfully Page 2 of 15 Downloaded on : Sat Dec 24 14:44:13 IST 2022 C/MCA/488/2019 ORDER DATED: 12/04/2022 disobeyed by the respondents ?
7. The term 'civil contempt' has been defined under section 2(b) of the Contempt of Courts Act. It means and includes willful disobedience of any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to the court. The word 'willful' denotes deliberate and intentional act or omission. An act is said to have been willful, if it is intentional, conscious and deliberate. A mere unintentional disobedience is not enough to hold one guilty of contempt although contempt may be committed. In the absence of willful disobedience on the part of the contemnor, he/she will not be held guilty unless the contempt involves a degree of fault or misconduct. In other words, accidental or unintentional disobedience would not be sufficient to justify one being held guilty of contempt. In the matter of Fairclough & Sons v. Manchester Ship Canel Co. reported in (1897) 41 Sol. Jo 225, Lord Russel, Chief Justice has observed : -
"No casual or accidental and unintentional disobedience of an order would justify either committal or sequestration. Where the Court is satisfied that the conduct was not intentional or reckless, but merely casual and accidental and Page 3 of 15 Downloaded on : Sat Dec 24 14:44:13 IST 2022 C/MCA/488/2019 ORDER DATED: 12/04/2022 committed under circumstances which negatives any contumacy, while it might visit the offending party with costs and might order an inquiry as to damages, it would not take the extreme course of ordering either of commitment or sequestration.
'Willful' means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say with bad purpose wither to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore, in order to constitute contempt the order of the Court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extraordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case. In his famous passage, Lord Diplock in Attorney General v. Times Newspapers Ltd. said that there is also "an element of public policy in punishing civil contempt, since administration of justice would be undermined if the order of any Court of law could be disregarded with impunity". Jurisdiction to punish for contempt exists to provide ultimate sanction against the person who refuses to comply with the order of the Court or disregards the orders continuously. Initiation of contempt proceedings is not a substitute for execution proceedings though at times that purpose may also be achieved. No person can defy Court's order. Willful would exclude casual, accidental bona fide or unintentional acts or genuine inability to comply with the terms of the order. A petitioner who complains breach of Court's order must allege deliberate or contumacious disobedience of the Court's order."
8. For holding a contemnor to have committed contempt, the complainant has to establish or demonstrate to the Court adjudicating the contempt proceedings that there Page 4 of 15 Downloaded on : Sat Dec 24 14:44:13 IST 2022 C/MCA/488/2019 ORDER DATED: 12/04/2022 has been willful disobedience of the judgment or order of the Court. Power to punish for contempt is to be resorted to when there is clear violation of Court's order. The Courts are respected not for it has got the power and authority to punish the guilty but for the reason it has the power of undoing the injustice that has occurred and occasioned. The power of contempt should be used sparingly and when it is clearly established that there is willful disobedience of the order. A notice of contempt and continuation of the contempt proceedings after issuance of notice would have for reaching consequences and as such this power will have to be used or invoked sparingly. If the disobedience of any judgment, order or direction is not deliberate or is merely accidental, it would fall short of what is described as "civil contempt" as understood by law. Whether a particular act or omission amounts to civil contempt within the meaning of section 2(b) of the Act depends upon various factors like whether the act or omission is willful or not, the language used in the order; whether the order is conditional or passed on basis of some contingencies; whether the order is passed by the competent Court; whether the order is based upon the consent of the Page 5 of 15 Downloaded on : Sat Dec 24 14:44:13 IST 2022 C/MCA/488/2019 ORDER DATED: 12/04/2022 parties to the judicial proceedings. A person cannot be punished or proceeded for Contempt of Court for disobeying an order of Court except when disobedience is established beyond reasonable doubt. The standard of proof in contempt proceedings is similar, even if not same as in the criminal proceedings. The Hon'ble Apex Court in the matter of Niaz Mohammad and others, etc. versus State of Haryana and others reported in AIR 1995 SC 308, has observed thus : -
"Section 2(b) of the Contempt of Court Act, 1971 (hereinafter referred to as 'the Act') defines "Civil Contempt" to mean "willful disobedience to any judgment, decree, direction, order, writ, or other process of a court...". Where the contempt consists in failure to comply with or carry out an order of the court made in favour of the party, it is a civil contempt. The person or persons in whose favour such order or direction has been made can move the Court for initiating proceeding for contempt against the alleged contemner, with a view to enforce the right flowing from the order or direction in question. But such a proceeding is not like an execution proceeding under CPC. The party in whose favour an order has been passed, is entitled to the benefit of such order. The Court while considering the issue as to whether the alleged contemner should be punished for not having complied and carried out the direction of the Court, has to take into consideration all facts and circumstances of a particular case. That is why the framers of the Act while defining civil contempt, have said that it must be willful disobedience to any judgment, decree, direction, order, writ or other process of a court. Before a contemner is punished for non compliance of the direction of a court the Court must not only be satisfied about the disobedience of any judgment, decree, direction or writ but should also be satisfied Page 6 of 15 Downloaded on : Sat Dec 24 14:44:13 IST 2022 C/MCA/488/2019 ORDER DATED: 12/04/2022 that such disobedience was willful and intentional. The Civil Court while executing a decree against the judgment debtor is not concerned and bothered whether the disobedience to any judgment, or decree, was willful. Once a decree has been passed it is the duty of the court to execute the decree whatever may be consequences thereof. But wile examining the grievance of the person who has invoked the jurisdiction of the Court to initiate the proceeding for contempt for disobedience of its order, before any such contemner is held guilty and punished, the Court has to record a finding that such disobedience was willful and intentional. If from the circumstances of a particular case, brought to the notice of the court, the Court is satisfied that although there has been a disobedience but such disobedience is the result of some compelling circumstances which it was not possible for the contemner to comply with the order, the Court may not punish the alleged contemner. In the present case, there is no specific direction in the aforesaid judgment of this Court dated 2.6.1988 in the connected Writ Petition, to pay any particular amount to the instructors, This Court has simply decided the question as to whether they are entitled to the scale of pay which has been given to squad teachers. Having decided that question in favour of the instructors, this directed that arrears be paid to the instructors w.e.f. their respective dates of appointments, treating them at par with the squad teachers. This direction will involve payment of about 28 crores of rupees was neither known to the Court not to the parties to that proceeding. As such, this Court is now entitled to examine the question as to whether in the special facts and circumstances of the present case, the respondents should be punished for having committed contempt of this Court. In Halsbury's Laws of England, 4th Edition, Volume 9, para 53 page 34, it has been said :
"Although contempt may be committed in the absence of willful disobedience on the part of the contemner, committal or sequestration will not be order unless the contempt involves a degree of fault or misconduct."
Taking all facts and circumstances into consideration, we are satisfied that in the facts and Page 7 of 15 Downloaded on : Sat Dec 24 14:44:13 IST 2022 C/MCA/488/2019 ORDER DATED: 12/04/2022 circumstances of the present case, there is no willful disobedience on the part of the respondents in complying with the direction given by this Court in the aforesaid judgment. It cannot be disputed that when the aforesaid direction was given, this Court was not conscious that the direction had created a liability for payment of about 28 crores of rupees, as arrears to the instructors in the Adult and Non- formal Education Scheme under the Education Department in the State of Haryana. Out of that amount about 20 crores of rupees have already been disbursed for different periods to the instructors. In this background, it is not possible to hold that respondents have committed contempt of this Court, for which they ought to be punished by this Court."
9. Keeping the aforesaid authoritative principles in mind, when facts on hand are examined, it would emerge from the record that complainant is alleging that there has been willful disobedience of the order, direction issued in Letters Patent Appeal No. 453 of 2018 on 12.06.2018. Hence, we are of the considered view that it would be necessary to take note of the order / direction which the complainant complains of having been willfully disobeyed by the respondents. The said direction is traceable to para 12.4 of the order passed in Letters Patent Appeal No. 453 of 2018 and it reads thus :
"12.4 As observed hereinabove xxx xxx. Under the circumstances, respondents No.2 and 3 are hereby directed to put their house in order and to take corrective measures and appoint required number of faculties and more particularly, the qualified faculties, as per the norms prescribed by Page 8 of 15 Downloaded on : Sat Dec 24 14:44:13 IST 2022 C/MCA/488/2019 ORDER DATED: 12/04/2022 the UGC, such steps to be taken at the earliest but not later than six weeks from today. Respondent - University Grants Commission is also directed to look into the matter and see to it that required number of faculties and that too, qualified and eligible faculties for the course in question are recruited and/or appointed by respondents Nos.2 and 3.
10. It is the aforesaid direction which the complainant is contending as not being complied. In the compliance affidavit which has been filed by the second respondent namely affidavit dated 08.07.2019, it has been contended that by order dated 07.06.2019 (Exh. VII), the University has appointed Dr. Naveen Chaudhary to the post of Professor - Cyber Security and he having accepted the said appointment, a further statement is made in paragraph 12 that two Assistant Professor on contractual basis in the institute of Forensic Sciences namely Mr. Jayesh Trivei and Mr. Ramya Shah have been issued appointment orders on 14.06.2019 (Exh. IX). It is no doubt true as rightly contended by contended by Mr. Sandeep Harshadray Munjyasara party appearing in person that the said order of appointment was not within the time framed fixed under the order dated 12.06.2018 passed in Letters Patent Appeal No. 453 of 2018 and we say so for the simple reason that in the aforesaid Page 9 of 15 Downloaded on : Sat Dec 24 14:44:13 IST 2022 C/MCA/488/2019 ORDER DATED: 12/04/2022 Letters Patent Appeal, this Court had directed the said exercise of appointment is to be undertaken at the earliest and not later than six weeks from the date of the order and this time frame has not been adhered to. However, respondent No. 2 has sought to explain the circumstances which perforced them of not proceeding with the appointment. The reasons so assigned can be traced in paragraph 3 to 9 of reply affidavit and reads : -
"3. It is further humbly submitted that the order passed by the Hon'ble High Court also directed GFSU to complete such exercise within a period of eight weeks from the date of the order which was passed on 12.06.2018. I humbly state and submit that during pendency of the said Letters Patent Appeal, an undertaking by way of an affidavit was submitted before the Hon'ble Court by GFSU in May, 2018 stating that GFSU would issue an advertising inviting applications for recruitment of 1 Professor, forthwith and would appoint such person as may be found eligible and possessing requisite knowledge by a selection committee constituted by the Director General of GFSU. In view of the same GFSU issued an advertisement on 07.06.2018 inviting applications from eligible candidates for fillingup the said post. Attached herewith and marked as EXHIBIT-I is a true copy of the said advertisement issued in daily newspaper on 07.06.2018. Thus even before the actual order of the Hon'ble Court was passed, GFSU had begun the procedure of recruitment by issuing the said advertisement.
4. Thereafter, on 19.07.2018 based upon the various applications received by GFSU, a letter was written to the Director Technical Education, State of Gujarat requesting to furnish list of appropriate officers who could scrutinize and verify the applications thoroughly in context to the prevailing guidelines of the recruitment regulations / instructions, that third party assistance would surely prove useful for the Page 10 of 15 Downloaded on : Sat Dec 24 14:44:13 IST 2022 C/MCA/488/2019 ORDER DATED: 12/04/2022 recruitment process. Attached herewith and marked as EXHIBIT-II is a true copy of the said letter written to the Director Technical Education, State of Gujarat.
5. Thereafter GFSU received a communication dated 19th July, 2018 from UGC wherein in context of letter No. 1-7/2017-CU-V(pt) dated 18th July, 2018 of the Ministry of Human Resource Development, Government of India, UGC directed all the Central Universities / State Universities / Deemed to be Universities and Inter-State Universities to postpone the recruitment process, if already underway till further orders on the ground or premise that the issue pertaining to implementation of reservation policy was pending before the Hon'ble Apex Court. Attached herewith and marked as EXHIBIT-III is a true copy of the said communication dated 19th July, 2018 from UGC along with letter No. 1-7/2017-CU-V(pt) dated 18 th July, 2018 of the Ministry of Human Resource Development, Government of India.
6. In view of the above, as UGC directed all the Universities to stay recruitment process, no further action was taken, but in order to see that as and when recruitment process would restart, no should should be wasted then, GFSU got all the applications scrutinized. On 19.10.2018, GFSU wrote a letter to UGC seeking further instructions with regard to restart the recruitment process but did not receive any reply towards it. Attached herewith and marked as EXHIBIT-IV is a true copy of the said letter dated 19.10.2018 written to UGC seeking further instructions.
7. Thereafter on 07.02.2019, the General Administrative Department of Government of Gujarat issued a resolution, in view of the 103rd Constitutional Amendment, giving directions for implementation of Government's policy of including 10% candidates belonging to Economically Weaker Section (EWS) while recruiting persons by direct selection on Class-I and Class-II posts. Attached herewith and marked as EXHIBIT-V is a true copy of the said resolution dated 07.02.2019.
8. Based upon the said resolution of the State Government for implementation of the 10% EWS quota while recruitment staff through direct selection, lot of ambiguity about its implementation was there. Thereafter on 07.03.2019, the Central Education Page 11 of 15 Downloaded on : Sat Dec 24 14:44:13 IST 2022 C/MCA/488/2019 ORDER DATED: 12/04/2022 Institutions (Reservation in Teachers' Cadre) Ordinance, 2019 came to be published in the Gazette of India bringing back the 200 point roster system that considers the University as the unit. Till March, 2019, there were no clear instructions as how to implement the Reservation Roster including EWS quota. The said ordinance gave clarity for implementation of the reservation policy in Universities and Institutions affiliated to it. Attached herewith and marked as EXHIBIT-V is a true copy of the said ordinance.
9. Apropos the aforesaid and in furtherance thereof, from 10.03.2019 to 27.05.2019 due to the Parliament Elections the Model Code of Conduct was applied and hence nothing could have been done by GFSU for recruitment of staff. Once the Model Code of Conduct got over, and that, since the new roster system and method to calculate Academic Performance Indicate (API) had been changed, GFSU decided to withdraw the Advertisement issued in June, 2018 with a view to see that University is complying with the prevalent norms of API Calculation and quota reservation as per the prevalent norms."
11. It is no doubt true that respondent - University was complying and / or adhering to the directions issued by the University Grants Commission, but it would not be out of context to refer at this juncture the communication of the UGC itself dated 11.09.2018 (Annexure R-1), whereunder, UGC itself has directed the University to comply with the direction issued in Special Civil Application No. 89 of 2017 which culminated in Letters Patent Appeal No. 453 of 2018. In other words, the reasons which have been assigned by the first respondent - University for not concluding the proceedings initiated for appointment was for the reasons Page 12 of 15 Downloaded on : Sat Dec 24 14:44:13 IST 2022 C/MCA/488/2019 ORDER DATED: 12/04/2022 beyond its control. Infact it would have been apt and appropriate for the University to have approached this Court in Letters Patent Appeal No. 453 of 2018 seeking enlargement of time placing the reasons for seeking such enlargement of time. On the other hand, it did not do so, but proceeded to comply with the direction issued by U.G.C. which also directed that the Central Universities / State Universities / deemed to be Universities and Inter-State Universities to postpone the recruitment process, if already underway till further orders on the ground or premise that the issue pertaining to implementation of reservation policy was pending before the Hon'ble Supreme Court. It is obviously this communication dated 19.07.2018 which emanated from U.G.C., which perforced the first respondent - University from proceedings with the appointments. Hence, it cannot be construed or understood that there was willful disobedience of the order passed by the Coordinate Bench.
12. Infact the Government of Gujarat by resolution dated 07.02.2019 which took note of 103 rd Constitutional Amendment has introduced the policy of 10% reservation to the candidates belonging to Economically Weaker Section Page 13 of 15 Downloaded on : Sat Dec 24 14:44:13 IST 2022 C/MCA/488/2019 ORDER DATED: 12/04/2022 (EWS) for recruiting persons by direct selection on Class-I and Class-II posts. Thereafter on 07.03.2019, The Central Education Institutions (Reservation in Teachers' Cadre) Ordinance, 2019 came to be published in the Gazette of India bringing back the 200 point roster system that considers the University as the unit. The said Ordinance also gave clarity for implementation of reservation policy in the Universities and institutions affiliated to it. For these reasons, the merit of which is not gone into by us in there proceedings, which had withheld the University or held back the University from implementing the orders passed by this Court in Letters Patent Appeal No. 453 of 2018 dated 12.06.2018. The fact remains that contemnors have purged in the contempt by complying with the directions issued by appointing a Professor and two Assistant Professors as ordered and it is also stated in the compliance affidavit that list of faculty members for school of Cyber Security and Digital Forensics at National Forensic Sciences University at Gandhinagar is duly filled up for which there cannot be any dispute.
13. In that view of the matter, we are of the considered Page 14 of 15 Downloaded on : Sat Dec 24 14:44:13 IST 2022 C/MCA/488/2019 ORDER DATED: 12/04/2022 view that continuation of the present contempt proceedings would not be warranted particularly in the background of respondent - University having purged in the contempt and the compliance reported to U.G.C. by the University through its compliance report dated 02.12.2019 (Annexure R-5 in the affidavit of fourth respondent dated 13.02.2020) which fact is also not disputed by the U.G.C. In other words, it would mean and include that U.G.C. has also accepted this fact. This fact would also persuade us to drop the contempt proceedings.
14. With these observations, the contempt proceedings stand DROPPED. Notice stands discharged.
(ARAVIND KUMAR,CJ) (ASHUTOSH J. SHASTRI, J) AMAR SINGH Page 15 of 15 Downloaded on : Sat Dec 24 14:44:13 IST 2022