The petitioner has initiated contempt proceedings against the respondent for non-compliance of the order of this court dated 16.08.2007 made in W.P.No.20541 of 2007.
2. From the averments made in the affidavit, it is given to understand that the petitioner is carrying on business of retail sale dealership of Petroleum and Kerosene for the respondent Oil Company under the name and style of M/s.Sri Astalakshmi Enterprises; necessary wholesale Licence has been issued by the Tamil Nadu Civil Supplies Corporation and for fire safety norms, Licence No.1151/2006, dated 14.12.2006 has been issued by the Divisional Officer, Tamil Nadu Fire Service Department. It is stated by the petitioner that statutory norms and conditions for obtaining licence have been fulfilled by him and the licences are still in his favour. According to the petitioner, the Kerosene Retail Sale business is carried on with valid licence issued by the Indian Oil Corporation (IOC) under the dealership agreement dated 01.03.1991.
3. The circumstances leading to the filing of this Contempt Petition are set out hereunder :
(i) The petitioner's Kerosene retail outlet was inspected during March 2007 by an Officer of IOC and thereafter, the Chief Divisional Manager (Retail Sales) issued Show Cause Notice vide Ref. No.SKO-133, dated 24.04.2007 calling upon the petitioner to show cause within 7 days from the receipt of the notice, as to why the kerosene dealership agreement should not be terminated.
(ii) In the Show Cause Notice, the respondent relied upon three documents namely, (1) Letter of Indent dated 22.05.1990, (2) Dealership Agreement dated 01.03.1991 (3) Unregistered Partnership Deed dated 13.01.1992. The petitioner requested the respondent to supply the three documents referred to above; however, the respondent, without conducting any enquiry, passed the order of termination dated 08.06.2007. The petitioner challenged the said order of termination in W.P.No.20541 of 2007 and this court, on 16.08.2007, after hearing the counsel for the parties, directed the first respondent Corporation to supply the documents as contended by the petitioner herein, call for a reply therefrom, make a fresh enquiry and take a decision thereon within a period of four weeks with a further direction to the respondent Corporation not to disturb the dealership of the petitioner till fresh orders are to be passed by the Corporation as per the above orders.
4a. The petitioner has further stated that the contemnor was represented by their counsel on 16.08.2007 and he supplied the three documents referred to above, to the petitioner on 18.09.2007. On 19.09.2007, the petitioner gave a reply to the respondent explaining that the three documents relied upon by the respondent in the Show Cause Notice in Ref.No: SKO/133 are not maintainable and are liable to be rejected. The petitioner personally appeared before the respondent authority and presented the reply dated 19.09.2007. The petitioner would contend that the contemnor did not pass any final order despite the clear and unequivocal direction of the High Court order dated 16.08.2007 within the time frame.
4b. The respondent reopened the Show Cause Notice Ref. No: SKO/133 with a second Show Cause Notice/letter dated 12.10.2007 by directing the petitioner to furnish three more documents namely, (i) Sales Tax Registration Certificate of the firm (ii) Income Tax Return filed by the petitioner for financial years 2005-2006 & 2006-2007 and (iii) Details of Bank Account operated for the business transaction of M/s.Astalakshmi Enterprises, not relied upon originally by the respondent in the Show Cause Notice Ref. No.SKO/133 dated 24.04.2007 nor was it a part of the issue in W.P.No.20541 of 2007 in which the respondent was given time to pass final orders within four weeks.
4c. On 19.10.2007, the petitioner by Registered Notice had brought to the notice of the respondent that he had failed to comply with the directions of the High Court. It is the case of the petitioner that despite the knowledge of his letter dated 19.10.2007, the respondent proceeded to pass final order of termination dated 12.11.2007 in total disregard and disobedience of the orders of this court dated 16.08.2007 and thus has taken law into his hands and his act amounts to outsmarting the temple of justice and majesty of law.
5. According to the petitioner, the respondent has failed to comply with the directions of this court, in the following perspective :
(i) The first act of contempt is a clear failure on the part of the respondent to implement the High Court order dated 16.08.2007 within four weeks from the date of order without obtaining any clarification order for extension of time to implement the court orders from the concerned court.
(ii) The second act of Contempt as apparent on record is the conduct of the respondent in adopting a contumacious, deliberate and willful conduct by calling for fresh documents vide his letter dated 12.10.2007 into re-opened Show Cause Notice SKO/133 enquiry much after receiving/considering the petitioner's defence reply dated 19.09.2007.
(iii) the third act of Contempt is the passing of the final order dated 12.11.2007 of termination of dealership by the respondent beyond the time limit prescribed by this court despite communication of a written Notice dated 19.10.2007 by the petitioner that such a course would attract the consequential action of contempt of court.
(iv) the fourth act of contempt is clearly evidenced by the fact that the respondent has gone behind the clear terms of the order dated 16.08.2007. The respondent did not approach the High Court for any clarification but proceeded to issue another Show Cause Notice dated 12.10.2007 without passing final orders as directed by the High Court. The letter dated 12.10.2007 issued by the respondent to the applicant clearly reflects the most callous, casual approach and clear violation of the binding directions of the High Court.
(v) The fifth act of contempt is that though this court in W.P.No.20541 of 2007 had directed the respondent to pass order to the Show Cause Notice in Ref.No:SKO/133 within a period of four weeks, no such order was passed by the respondent, because no flaw could be found to the reply given by the petitioner. In all, the petitioner would contend that the order of termination of dealership is in violation of this Court dated 16.08.2007 and that it amounts to contempt of court.
6. The respondent has filed counter affidavit stating that M/s.Indian Oil Corporation Limited had entered into a Dealership Agreement with the petitioner under the name and style of Ashtalakshmi Enterprises for retail sales of Kerosene vide Kerosene Dealership Agreement dated 01.03.1991. The petitioner was appointed as a dealer and the dealership commissioned on 06.03.1991. However, the dealership agreement was terminated on 08.06.2007, as the petitioner had failed to operate the SKO Outlet in person and contrary to the terms and conditions of the dealership agreement, he had permitted unauthorised persons to operate the SKO Outlet.
6a. It is further stated in the counter affidavit that on 22.03.2007, a surprise inspection was conducted by the Manager (Vigilance), Southern Region and the Assistant Manager (Retail Sales), Chennai North and the petitioner was not present during the enquiry; instead, Mr.Selvaraj, Manager and one Mr.Boominathan, Sales-in-charge appointed by one Mr.A.Narayanan were present. On enquiry, the said Mr.Selvaraj and Mr.Boominathan revealed that the petitioner had not been attending to the dealership for more than a year as he had entered into a partnership agreement with one Mr.A.Narayanan. The respondent would also state that the petitioner, on receipt of the show cause notice, replied on 02.05.2007 that he was out of station and requested for 15 days' time. However, he never replied in time. As no reply was received, an order of termination dated 08.06.2007 was passed; however, in the meanwhile, the petitioner had given a letter dated 04.06.2007 asking for certain documents.
6b. According to the respondent, the requisition for documents is nothing but an afterthought, as all the three documents referred to above were supplied to the petitioner on 12.09.2007 and the petitioner was called upon to give his explanation and an opportunity of personal hearing was also given to him on 20.09.2007. As the claim and explanation of the petitioner that he himself was conducting the dealership all these days was not supported by any document, a letter dated 12.10.2007 was issued to the petitioner asking him to produce the documents in support of his explanation.
6c. The respondent would state that, as per the order of this court, the supply of Kerosene to the petitioner was maintained till the passing of termination order and also thereafter, when the petitioner challenged the aforesaid order of termination in W.P.No.35330 of 2007 and obtained stay of the same. The respondent would further state that only after filing of counter affidavit by the IOC in the said W.P.No.35330 of 2007, the Contempt Petition has been filed.
7. Heard Mr.K.Kumar, learned Senior Counsel appearing for the petitioner and Mr.R.Krishnamoorthy, learned Senior Counsel appearing for the respondent.
8. Learned Senior Counsel appearing for the petitioner would contend that the respondent has committed contempt, as he has exceeded the time frame of four weeks granted to him. According to the learned Senior Counsel, the respondent ought to have sought extension of time in complying with the order; instead, he has proceeded to deal with the Show Cause Notice without passing final order despite receipt of the petitioner's reply. It is his further contention that despite the petitioner's intimation letter dated 19.10.2007 to the respondent, the respondent has committed contempt of court and he did not even seek leave of the Court nor did he show serious consideration of the petitioner's intimation to launch contempt of court, but proceeded to pass final order.
9. In support of his case, learned Senior Counsel for the petitioner has placed reliance on the following :
(i) a decision of this court reported in 1996 MLJ 386 in the case of Karamchand Thapar & Bros. (C.S.) Limited vs. Manaco Properties Private Limited and another :
"6. The learned counsel appearing for the respondents would argue that since the respondents tendered unconditional apology, it may be accepted and they may be let off with a warning. Contempt proceedings cannot be met with a plea of justification as well as with an apology in the alternative. The two pleas are inconsistent. Justification and apology together are incompatible. They cannot go together. The acts committed by the respondents is an act of wilful disobedience to the order passed by this Court. The respondents only try to justify their conduct by giving a reason that unless the work in mezzanine floor is completed and the work in the lift room is completed and a overhead tank is also put up in the fourth floor, the building will not be suitable for occupation.
...
It is only in cases, the apology being unconditional, voluntary and genuine and the contemners being conscious of wrong done by them, the acceptance of such apology will sufficiently meet the ends of justice. It is not so in cases where the apology is tendered to escape punishment for the violation committed by them. The violation committed by the respondents is an act of contempt and it is not out of an innocent motive but deliberate and intentional. Therefore punishment has to be necessarily inflicted. Good faith or innocence, want of mens rea, intention or motive are no defences to contempt action, but they are useful in mitigating circumstances in the matter of award of punishment. Therefore, the reasoning given by the respondents can at the most be a mitigating circumstance in awarding the punishment and the respondents cannot escape from punishment. The apology to be available to the contemner must be sincere. The apology tendered by the respondents is not sincere and it appears to be an afterthought intended merely to avoid punishment. The counter of the second respondent discloses that it is not the case of the respondents that they have violated the order of this court with a good intention or good motive or with a lack of intention to offend the court. Even in those circumstances, there cannot be reasons justifying the conduct of the contemners as in the present case in which, the respondents want to justify their action. Considering all these aspects, I am of opinion that the argument of the learned counsel appearing for respondents that the unconditional apology tendered by the respondents may be accepted and they may be let off with an warning cannot be upheld. Since the violation of the order committed by the respondents being first of this kind, I am of opinion that a lenient view may be taken in awarding punishment to the contemners even though the respondents have committed gross contempt. I only wish to observe that great forbearance and circumspection is expected of the court in the matter of punishing the contemners, since the ordinary protection available to a person accused of any criminal act or offence is not open to a person accused of criminal contempt and in that view, I am of the opinion that instead of convicting the contemners and sentencing them to undergo imprisonment, the ends of justice will be met if fine is imposed. ... "
(ii) a decision reported in 1996 (2) PLJR 317 in the case of Mantosh Kumar Singh & others vs. The State of Bihar & others :
"30. As regards the plea that the process takes time or that the fund is not available, I fail to appreciate this plea. There cannot be any such process, which would lead to non-compliance of the judgment/order for months and in some cases even years. With my experience, since I have been hearing contempt matters, I can say that where there is a will, a way is found out. Whenever, I take strong exception to such a plea being taken, almost after a year, the notification/cheques have been produced on the very next day. This is sufficient to demonstrate that unless a sword is made to hang over the head of the concerned officer, he does not bother for the compliance. I have found that even after disposal of L.P.A., which is the usual plea taken in almost all contempt matters, no action is taken for months until the contempt matter is taken up for hearing by this court. This is really shocking and a very sad state of affairs prevailing in authorities, whether it is State or its Instrumentalities or in some cases even the Central Government and its Instrumentalities. This really requires immediate check and thus, I am constrained to observe that this does not only harass the poor litigants, but also interferes with the course of justice, required to be imparted by this court in various other important matters. If such action of the authorities is allowed to go un-checked, it would result in orders of court ceasing to have any meaning and judicial power itself becoming a mockery."
(iii) a decision of the Allahabad High Court reported in 2004 CRL L.J. 3936 in the case of Shail Kumari and others vs. Hari Raj Kishore and others :
"8. However, perusal of the order of the compliance shows that no valid reason has been given as to why the direction given by this court in the order dated 06.02.2002 has not been considered within a reasonable time. There is no justification for delaying the matter for two years. Delay in the matter led various consequences. It is seen that delay in taking the decision or complying the order of the court or inaction on the part of the Government Official has become a part of their habit which are leading the serious consequences and multiplying the litigation which cannot be tolerated. In the circumstances, I propose to award the cost of Rs.20,000/- against the opposite party No.1."
10. On the other hand, learned Senior Counsel appearing for the respondent would submit that orders were passed within four weeks from the date of the reply of the petitioner in response to the respondent's letter dated 12.10.2007 asking for documents to substantiate the claims and explanation that the petitioner made in his written statement and during the oral enquiry. He would further state that the letter dated 12.10.2007 is not another show cause notice, but an opportunity provided to the petitioner to support his oral and written claims by way of producing the said documents. Learned counsel would also submit that the order of termination is in accordance with the orders of this court and that till the orders were passed, the supply of kerosene to the petitioner was maintained.
11. Having heard the learned counsel for the parties, I am of the view that it is not open to this court to examine the merits of the case; but, this court can only consider as to whether the order passed by this court in the writ petition has been complied with or not.
12. In the instant case, this court in W.P.No.20541 of 2007 has passed the following order:
"7. In appraisement of the circumstances, this Court feels that it would be fit and proper to quash the order of termination originally passed in Ref.No.CDO/SKO/133, dated 08.06.2007. Accordingly, it is quashed. The first respondent Corporation is directed to supply the documents as contended by the petitioner herein, call for a reply therefrom, make a fresh enquiry and take a decision thereon within a period of four weeks herefrom. The first respondent Corporation is also directed not to disturb the dealership of the petitioner till the fresh orders to be passed by the Corporation as per the orders above."
A perusal of the papers would show that the above said order was made ready on 27.08.2007 and it was delivered to the parties on 30.08.2007.
13. It is seen that the respondent by its letter in Ref : SKO :133 dated 12.09.2007 to the petitioner had supplied copies of (i) Dealership Agreement dated 01.03.1991 (ii) Letter of Indent bearing Ref : R/AGY Perambur dated 22.05.1990 and (iii) Partnership Deed dated 30.01.1992. In the said letter, the respondent called upon the petitioner to show cause in person along with his reply/documents for enquiry on 20.09.2007 before the Chief Divisional Retail Sales Manager, IOC as to why the Kerosene Dealership Agreement dated 01.03.1991 executed between the petitioner and the Corporation should not be terminated in view of the said irregularities/violations committed by the petitioner. It was also made clear in the show cause notice that, if the petitioner fails to respond on the stipulated time, then his dealership would be terminated without any further notice to him.
14. In response to the above Show Cause Notice, the petitioner submitted an explanation to the respondent on 19.09.2007 and appeared in person for the enquiry conducted on 20.09.2007. Thereafter, in the communication to the petitioner dated 12.10.2007, the respondent, on consideration of the explanation of the petitioner dated 19.09.2007 and his appearance in person during the enquiry conducted on 20.09.2007, advised the petitioner to produce three documents namely (i) Sales Tax Registration Certificate for the firm (ii) Income Tax Return filed by the petitioner for financial years 2005-06 and 2006-07 and (iii) Details of Bank Account operated for the business transaction of M/s.Astalakshmi Enterprises, within 7 days from the date of that letter. To the said communication of the respondent dated 12.10.2007, the petitioner sent a reply on 19.10.2007, calling upon the respondent to withdraw the letter dated 12.10.2007 forthwith, failing which, he has no other option than to approach the High Court, Madras for vindication of his legal rights. In the said reply, the petitioner has also informed the respondent that the respondent has waived his right and has become ineligible to pass orders to the Show Cause Notice SKO/133 within a period of four weeks as stipulated by this court vide order dated 16.08.2007.
15. Noticing the above reply of the petitioner, the respondent passed an order on 12.11.2007. Relevant portion of the said order would read thus :
"As you have failed to produce any documentary proof to support your claim and as it is clear from the above that you have thus committed breach of the terms, conditions, covenants and stipulations contained in clauses 16(a), 16(b), 16(c)(i) mentioned in the dealership agreement as stated supra. Your aforesaid acts amounts to damaging the image of our Corporation and are also prejudicial to the interest and good name of our Corporation.
Hence, exercising our right under the Kerosene dealership agreement dated 01.03.1991, we hereby terminate forthwith the above said dealership agreement and you shall cease to be our kerosene dealer at Perambur, Chennai. "
The said termination order is questioned by the petitioner as the respondent could not comply with the order of this court.
16. Learned counsel for the petitioner also represented that pursuant to the above order of termination, the petitioner filed a Writ Petition in W.P.No.35330 of 2007, challenging the above order of termination and this court, by an order dated 20.11.2007 granted stay of the termination order. Counter was also filed by the respondent Corporation on 18.12.2007. However, the petitioner has filed this Contempt Petition on 20.12.2007.
17. In the light of the above situation, it has to be examined as to whether the petitioner has complied with the order of this court dated 16.08.2007 in the right spirit or not. This court, in the order under contempt in this petition, directed the respondent herein to supply the documents as contended by the petitioner, call for a reply therefrom, make a fresh enquiry and take a decision thereon within the stipulated period and also directed that till such time, the petitioner's dealership shall not be disturbed. The documents sought by the petitioner have been furnished to him on 12.09.2007 and he has been called upon to reply on the same proceedings, dated 12.09.2007.
18. The petitioner submitted an explanation on 19.09.2007 and took part in the enquiry conducted on 20.09.2007. However, the time taken by the respondent for compliance of the order of this court has been questioned by the petitioner, stating that, the further documents required by the petitioner were unnecessary and uncalled for, as it would defeat the compliance of the order as stipulated. But, this has been refuted by the learned Senior Counsel for the respondent stating that in order to ascertain as to whether the petitioner is really running the business of Retail Sale of Kerosene or not, the respondent required certain documents and the same have been called for. In spite of the reply sent by the petitioner to the respondent's letter dated 12.09.2007, the petitioner sent another communication dated 19.10.2007 stating that the respondent has become ineligible to pass orders on the Show Cause Notice dated 12.09.2007. Therefore, there is no other option for the respondent to pass an order of termination and the proceedings of the respondent dated 12.09.2007, 12.10.2007 and 12.11.2007 are all in compliance of the order of this court.
19. On analysis of the decisions relied on by the learned counsel for the petitioner, it is seen that the since the respondents therein tendered unconditional apology, it may be accepted and they may be let off with a warning. In the case on hand, the petitioner has received the copy of the order in the writ petition on 30.08.2007 and the contemnor has passed the termination order on 12.11.2007, which is less than 2 = months.
20. It is the ordained principle that good faith or innocence, want of mens rea, intention or motive are no defences to contempt action, but they are useful in mitigating circumstances in the matter of award of punishment. Therefore, in the given facts and circumstances, the reasoning given by the respondents can at the most be a mitigating circumstance in awarding the punishment and the respondents cannot escape from punishment. Even in those circumstances, there cannot be reasons justifying the conduct of the contemnor. In the case on hand, from the reading of the order under contempt , it is clear that the respondent herein was directed to make a fresh enquiry and take a decision thereon within a period of four weeks. In the instant case, it is seen that pursuant to the order passed by this court, the respondent has called upon the petitioner for an explanation and the petitioner sent a reply to the said notice; thereafter, the respondent sent a communication to the petitioner for conducting an enquiry; the petitioner sent a further reply to the same and participated in the enquiry; only thereafter, the respondent has passed the final order. Thus, the respondent has given sufficient opportunity to the petitioner to substantiate his stand and if any delay exists in complying with the order of this court, it is not only on the part of the respondent, but, the time taken by the petitioner in replying to the notices of the respondent also would attribute to the same.
21. Therefore, in my considered opinion, there cannot be any intentional delay on the part of the respondent in passing the order. A perusal of the order of termination dated 12.11.2007 passed by the respondent would show that the respondent has assigned valid reasons for compliance of the order of this court dated 16.08.2007 and moreover, he has passed the said order within the reasonable period of time.
22. Therefore, in the light of the above discussion and considering the circumstances of the case, I am not inclined to initiate any contempt proceedings on the respondent herein, as there are no warranting circumstances to impose any punishment on the respondent.
In all, this Contempt Petition stands dismissed.
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