The present application for contempt has been filed for disobedience of the order 26th July, 2010.
From the facts stated it appears that an order was passed by Bharat Cooking Coal Limited, suspending supply of 45 units from members of Coal Consumer Association on 1.7.2010. A writ petition was filed challenging the order of suspension cum show cause notice with following prayer:-
"i. Issue writ, order or direction in the nature of certiorari quashing the impugned order dated 1st July, 2010 (Annexure No.2 to the writ petition) passed by respondent no.4.
ii. Issue writ, order or direction in the nature of certiorari quashing the Clause 4.4 of the Fuel Supply Agreement (FSA) executed between the petitioner and the respondent no.4.
iii. Issue writ, order or direction in the nature of mandamus commanding the respondents not to force the petitioner to furnish the information in new format and authenticated by the Industries Department other than the establishment and statutory registration informations.
iv. Issue any other suitable writ, order or direction, which this Hon'ble Court may deem fit and proper in to the facts and circumstances of the case.
v. Award cost of the instant writ petition.
By order dated 26.7.2010, the Division Bench of this Court had stayed the order of suspension cum show cause notice and a Special Leave Petition was preferred before the Apex Court and vide order dated 4.8.2010, operation of the order passed by this Court dated 26.7.2010 was stayed. During period of stay before the Apex Court, a Committee was formed to scrutinize the firms of 45 consumers. Ultimately, Special leave petition was dismissed by order dated 15.9.2010 and has vacated the interim order. According to applicants they filed a representation before the competent authority stating therein that as Special Leave Petition has been dismissed, therefore, it will be appropriate that respondents may not proceed under Clause 4.4 of the Fuel Supply Agreement and further a direction be issued for resumption of supply of coal. An order was issued by BCCL by which they withdraw the order dated 1.7.2010 with a condition mentioning in the notice that they have a right to take appropriate action in the terms of Clause 4.4 and 15.1 of the Fuel Supply Agreement. A representation was also filed to that effect not to proceed under Clause 4.4 of the Fuel Supply Agreement. A Contempt Application was filed being Contempt Application No.4652 but said contempt application was dismissed with an observation that as no action has yet been taken by respondents in terms of Clause 4.4 and 15.1 of Fuel Supply Agreement, therefore, no cause of action accrued to applicant for making such application for contempt. Subsequently action has been initiated in pursuant to Clause 4.4 of the Fuel Supply Agreement. Then a contempt application was filed being Contempt Application No.5168 of 2010 in which notices have been issued for deliberate disobedience of the order. Supply was not resumed and opposite parties have deliberately after the order of Hon'ble Court dated 26th July, 2010 has constituted a Committee on 17th August, 2010 under Clause 4.4 and 15.1 of the Fuel Supply Agreement and further a notice has been issued on 10th October, 2010 under Clause 4.4 and 15.1 of the Fuel Supply Agreement. Applicants submit that this is a deliberate and wilful act of opposite parties which amounts to wilful disobedience and defiance of the order of this Court.
According to applicants, the order dated 1st July, 2010 was issued by the oppose parties exercising its power under Clause 4.4 of the Fuel Supply Agreement, same was stayed by the Hon'ble Court in the writ petition and the order passed by this Court is still operating. Therefore, initiation of proceeding or intents to start any proceeding under Clause 4.4 is deliberate and wilful disobedience of the order of this Court. On 9/10.11.2010 an order has been issued by BCCL terminating the Fuel Supply Agreement of applicants exercising power under Clause 4.4 and 15.1 of Fuel Supply Agreement. An amendment application was filed challenging the order of termination in Writ Petition No.42331 of 2010. The aforesaid application was dismissed on the ground that suspension order has been merged in the order of termination, therefore, the main challenge of suspension in the writ petition has been rendered infructuous and as fresh cause of action arises challenging the order of termination which is available to applicant including the ground that termination order has been passed while the order impugned dated 1.7.2010 which include the notice was stayed by this Court.
The respondent authority against the order passed in Contempt Application No.5350 of 2010, a Special Leave Petition was preferred before the Apex Court questioning various things raising various questions before the Apex Court to the effect that whether the High court can direct in a contempt jurisdiction for withdrawing of final order of termination. One of the question raised before the Apex Court was that whether the contempt application against the interlocutary order is maintainable or not. Both Special Leave Petitions were disposed of with a modification only to the extent regarding personal appearance of the Chairman cum Director.
Counter and rejoinder affidavits of contempt applications have already been filed, therefore, this matter is being disposed of finally after hearing learned counsel for parties.
Sri Umesh Narain Sharma, learned Senior Advocate assisted by Sri A.K.Pandey, learned counsel appearing for applicants has submitted before the Court that from the order dated 26.7.2010, it is clear that operation of the order dated 1.7.2010 contains regarding suspension and notice of show cause was stayed, therefore, respondent-authorities have got no jurisdiction to pass the order impugned dated 9/10.11.2010 by which agreement has been terminated as per clause 15.1 of Fuel Supply Agreement. If some action can be taken by respondents they should have taken action before 15th September, 2010 during pendency of Special Appeal when the interim order was passed but as the SLP was dismissed on 15th September, 2010, therefore, it was not open to respondents to pass such order. Sri Sharma, learned counsel appearing for applicant has submitted that once there is disobedience of the order of this Court in spite of fact that writ petition has been dismissed on the ground that it has become infrucutuous if the order of this Court has been violated, contempt application cannot be held to be infructuous. He has placed reliance upon a judgment of this Court reported in 2004 (2) AWC, 976 Naresh Chandra Kapoor Vs. O.P.S. Malik and another and has placed reliance upon para 22, 29 and 30 of the said judgement. The same are being quoted below:-
"22. Applying the principle laid down by the Hon'ble Supreme Court to the facts of the present case I find that the in the present case the proceedings for contempt commenced when the petitioner filed the present application/petition on 8th April, 1993 and, therefore the bar of Section 20 of the Act is not applicable.
29. Thus, in view of the settled proposition that one cannot escape the consequences of disobedience and violation of interim orders committed by them prior to the dismissal of the writ petition, the argument of Sri Sharma that since the writ petition has finally dismissed the notices could not have been issued is misplaced. If the argument of Sri Sharma is accepted then it would be subversive of the Rule of law and would seriously erode the majesty and dignity of the Courts. There cannot be any dispute that after the dismissal of the writ petition no benefit can be derived from the interim order as it stands merged but the position for action being taken for the alleged disobedience violation of the interim orders prior to the dismissal/final orders being passed in the proceeding stands on a different footing.
30. In view of the forgoing discussion, I do not find any good ground for recalling the order dated 14th May, 2002. The application for recall is, therefore, rejected."
Reliance has also been placed upon a judgement of Apex Court reported in (1997) 2 Supreme Court Cases, 443, Tayabbhai M.Bagasarwalla and another Vs. Hind Rubber Industries Pvt. Ltd. and others.
Placing reliance upon aforesaid judgement, learned counsel for applicant submits that in spite of that if after entertainment of suit and passing the interim order, the question of jurisdiction raised, it has to be decided at the first instance but it does not mean that pending decision upon the question of jurisdiction, the Court has no jurisdiction to pass interim order and if ultimately the Court holds that it has no jurisdiction to entertain the suit, then undoubtedly the interim order came to an end holding therein that the Court has no jurisdiction. But this power or obligation has nothing to do with the proposition that while in force, these orders have to be obeyed and their violation can be punished even after the question of jurisdiction is decided against the plaintiff provided violation is committed before the decision of the Court on the question of jurisdiction.
In such circumstances, learned counsel for applicants submits that it was not open to respondent-opposite party to pass such order dated 9/10.11.2010 terminating Fuel Supply Agreement. Hence, the opposite parties have disobeyed the order wilfully and deliberately, therefore, they are liable for punishment.
On the other hand, Sri Madhur Prakash, learned counsel appearing for opposite party-Corporation has submitted that by order dated 1.7.2010, composite notice of show cause and suspension was issued. The said order was stayed by this Court upon a writ petition filed by applicants and it was stayed on 26th July, 2010 and Special Leave Petition was filed against the order and by order dated 4.8.2010, the order of High Court was stayed. The Special Leave Petition was ultimately dismissed on 15th September, 2010 and on 24th September, 2010, order dated 1.7.2010, show cause cum suspension order was withdrawn and coal supply was resumed in terms of Fuel Supply Agreement to applicants but a condition was put that this resumption of supply of Coal is without prejudice to the rights of the management to take appropriate action in terms of Clause 4.4 and 15.1 of the Fuel Supply Agreement. Supply of coal was resumed to applicants and by order dated 9/10.11.2010, a detailed order was passed after examining documents submitted by applicants which were scrutinised by the Committee and then an order was passed. The opposite party on the basis of resumption of supply, made an application along with an affidavit for dismissal of writ petition No.42231 of 2010 being fact that coal supply was resumed. On 26.11.2010, an application for amendment was filed in the same writ petition challenging the order of termination of agreement. The Division Bench dismissed that writ petition on the ground that now there is a fresh cause of action and it can be challenged by separate writ petition. It is also clear that the order of termination dated 9/10.11.2010 has already been challenged by applicants by filing a Writ Petition No.72706 of 2010 for quashing the order of termination on 20.12.2010. It is also clear from the record that a Contempt Application No.4652 of 2010 for violation of the order dated 26.5.2010 passed in Writ Petition No.42231 of 2010 was dismissed by this Court. Now applicants have again filed this contempt application with an allegation that 100% supply of coal has not been made by opposite party. The applicants did not place correct fact before the Hon'ble Court as supply was made to them 76% and not 57%, as alleged. The answering opposite party has full honour of the Court's order and after the order of this Court has resumed the supply of coal in a bonafide manner. Submission has been made on behalf of opposite party that in compliance with the order of this Court dated 26.7.2010, coal supply was resumed with a liberty to take appropriate decision after dismissal of Special Leave Petition, coal supply was resumed and as show cause notice was given and proper reply was submitted, therefore, after consideration of reply the order impugned has been passed. Therefore, it cannot be said that there is any disobedience of the order of this Court.
Further learned counsel for respondent-opposite party has placed reliance upon a judgement of this Court reported in (2010) 10 Supreme Court Cases, 157 Coal India Limited and others Vs. Alok Fuels Private Limited through Director and others and has submitted that in the aforesaid case, the Apex Court while considering the policy of Government has taken a view. He has placed reliance upon para 23 of the said judgement. The same is being quoted below:-
"23. We further find that in the counter-affidavit filed in the High Court in reply to the writ petitions filed by the respondents, Coal India Ltd. and BCCL have pleaded that under Clause 4.4 of FSA the respondents were required to utilise the entire quantity of coal allotted to them in their respective plants and had undertaken not to sell/divert/transfer the coal for any purpose whatsoever and as the FIR lodged by CBI disclosed breach of this clause of FSA, Coal India Ltd. and BCCL had to suspend the supplies of coal to prevent further diversion of coal by the respondents and this decision was taken pending a final decision regarding termination of FSA in terms of Clause 15 thereof. Thus the case of the appellants herein before the High Court was that suspension of supply of coal has been ordered to prevent further diversion of coal by the respondents."
Further submission has been made that in view of all the facts, as the reply submitted by applicants were not satisfactory, as such, the order was passed. Therefore, it cannot be said that there is any disobedience of the order of this Court.
After considering the submission of parties, it is clear that this Court has passed an order staying the suspension/show cause notice by order dated 26th July, 2010. Respondent BCCL aggrieved by aforesaid order, filed a Special Leave Petition and an interim order was granted but ultimately by order dated 15th September, 2010, Special Leave Petition was dismissed and then in compliance with the order of this Court, respondent-authority has taken of resumption of coal and has withdrawn the combined notice dated 1st July, 2010. Admittedly, from the record, it is clear that coal supply was resumed, though according to applicants, it was not proper supply but this question is not to be considered by this Court in such proceeding. This Court has to see only whether the order of this Court dated 26th July, 2010 has been wilfully deliberately disobeyed by the authority or not. From perusal of withdrawal order, a specific mention was there to the effect for proceeding further under Clause 4.4 of Fuel Supply Agreement. Contempt application earlier filed by applicants was dismissed by this Court on the ground that no action has been taken, therefore, it cannot be said that there is any disobedience of the order of this Court. Admittedly, supply of coal was resumed. In my opinion, if supply of coal was resumed and show cause notice of 1st July, 2010 was withdrawn then the order of this Court dated 26th July, 2010 has come to an end because show cause /suspension of 1st July, 2010 was not in existence immediately as soon as the order of 24th September, 2010 was passed for resumption of coal supply. Therefore, if some order has been passed, a liberty was taken in the order dated 23/24th September, 2010 and after consideration of relevant document it was considered by the Committee and then an order was passed on 9/10.11.2010 by which the High Power Committee after verification of various documents submitted by Fuel Supply Coal consumers, have terminated the agreement as per Clause 15.1.5.
In such circumstances, contention of applicants to the effect that as suspension of coal supply and show cause proceeding was stayed by this Court, by order dated 26.7.2010, it was not open to opposite party to take an action of termination in pursuance of the order dated 9/10.11.2010, cannot be accepted being fact that as soon as supply of coal is resumed, with a liberty to take appropriate decision/action in terms of Clause 4.4 and 15.1 of Fuel Supply Agreement and as soon as this order was accepted by the applicants, the order dated 26th July, 2010 came to an end. After that the opposite party i.e. BCCL can take appropriate decision and admittedly, petitioner has challenged the order of termination by filing a writ petition and that is still pending for consideration.
In such circumstances, it cannot be said and held that there is any disobedience of the order of this Court.
The present application is hereby dismissed.
No order as to costs.