Heard learned counsel for the applicant. None appears for the opposite party though the matter was taken up in the revised list.
By the following order dated 4.12.2009 the opposite party no. 1 was found guilty of contempt and was punished with simple imprisonment of 15 days and fine of Rs. 2,000/-:
"Heard counsel for the applicant, learned Standing Counsel and Sri Hasan Abidi for opposite party no.1.
The applicant was working as Principal in Rishikul Bramhacharya Sanskrit Mahavidyalaya, Katghar in district Moradabad and on the eve of his retirement on 30.6.1997, he was confronted with a charge sheet alleging financial irregularities and thus, his post retiral benefits were not paid. Since the retiral dues were not paid, the applicant preferred writ petition no. 12490 of 2003 and a Division Bench of this Court vide judgement and order dated 30.3.2006 directed that the retiral benefits including arrears of salary be paid to the applicant within three months, in case the applicant is not entitled for some or any amount, a reasoned order be passed and communicated to him within the aforesaid three months. It was further directed that if the amounts are not paid within three months, it would carry 10% per annum interest.
The opposite party no.1 who happens to be the Manager of the institution had also instituted a writ petition before this Court seeking a direction for enquiry against the applicant and on his writ petition a direction was issued in pursuance of which the State Government enquired the financial irregularities against the applicant and vide order dated 23.10.2006 found that the applicant was liable to pay Rs.1,57,956/-.
Non-compliance of the order dated 30.3.2006 led to the filing of the present contempt petition where affidavits have been exchanged. The following order was passed on 17.11.2009.
"Heard learned counsel for the applicant, learned Standing counsel, but none appears for the opposite party no. 1 even in the revised list.
The applicant retired from the post of Principal of Rishikul Bramhcharya Sanskrit Mahavidyalaya Katghar, District Moradabad in 1997, but his post retiral benefits and some salary were not paid forcing him to prefer Writ Petition No.12490 of 2003. A Division Bench of this Court vide order and judgment dated 30th March 2006 disposed off the said writ petition by the following operative portion :
"Having considered the submission and looking to the facts and circumstances of the case, we dispose this writ petition at this stage directing the respondents to pay the post retiral benefits including arrears of salary to the petitioner in accordance with law within three months from the date of production of certified copy of this order. In the event, the respondents comes to the conclusion that the petitioner is not entitled to get pension or nothing is due towards retiral benefits the respondents shall pass a reasoned order and communicate the same to the petitioner within the aforesaid period of three months. It is further provided that if the respondents does not pay the retiral benefits which was ultimately payable to the petitioner within three months or pass the appropriate order as indicated above, the petitioner shall be entitled to get interest on the amount found payable at the rate of 10% per annum.
With the aforesaid directions, the writ petition stands finally disposed of."
This contempt petition was filed with the allegation that despite the aforesaid order, no payment was made.
Upon issuance of notice, it has come on record that the State Government vide an order dated 23rd of October 2006 has come to the conclusion that the applicant is liable to pay Rs.1,57,956/- to the State in regard to certain embezzlement. Despite directions of the DIOS, the management did not present the bills for release the retiral dues after withholding the aforesaid amount of liability. The DIOS in his recent letter dated 20th June 2009 asked the management for compliance of the writ order but the management has refused to do so.
In view of the aforesaid, issue non bailable warrants against the opposite party no.1 to secure his presence on the next date to ensure compliance of the writ judgment.
The non bailable warrants should be executed forthwith and the opposite party no.1 shall be produced before this Court on 4th of December 2009.
List on 4th of December 2009."
In pursuance of the warrants, the opposite party no. 1 has appeared and it is contended on his behalf that the applicant was found guilty of financial irregularities and therefore, the Government has already passed an order for recovery of Rs.1,57,956/- from him and therefore, he did not forward the bills. It is on record that not only the District Inspector of Schools but even the applicant himself had given in writing to the opposite parties that all other amounts may be paid to him except the amount of Rs.1,57,956/- but yet the opposite party no. 1 even after receipt of the contempt notice, was audacious enough to have written to the District Inspector of Schools on 1.7.2007 that he would take all the responsibility if there is any contempt of the writ order. There is no justification for withholding all the amounts but yet there is no apparent reason why the opposite party no. 1 took up such a defiant stand.
It is also noteworthy that against the order of the State Government imposing a liability of Rs.1,57,956/- on the applicant, he preferred a writ petition no.44513 of 2007 and obtained an interim order on 17.9.2007 and the copy of the stay vacation application on behalf of the opposite party no.1 was served on the counsel for the applicant only on 2.12.2009 i.e. after receipt of the warrants of this Court.
His conduct also shows that he is employing subterfuge to over reach the order of this Court. The action and inaction of the opposite party no.1 apart from causing hardship and harassment to the applicant, has also defied the writ direction.
Normally, charges should be framed before the Court tries a person for contempt but where the opposite party has fully understood why he has been called upon to answer the allegation of the petition, there would be no need of framing charges. In the present case, at no point of time, either through pleadings or oral arguments, the Court was confronted with the issue that the opposite party no. 1 does not know why he has been called upon to answer the notice.
Considering all the facts in its entirety and taking a holistic view, there can be no other conclusion except that the opposite party no.1 is guilty for wilful and deliberate violation of the writ directions dated 30.3.2006 passed in writ petition no.12490 of 2003 and as such he is found guilty of Civil Contempt under section 12 of the Contempt of Courts Act, 1971.
Thus, the opposite party no. 1, who is present in Court is taken into custody.
Heard counsel for the parties on the question of sentence.
On the question of sentence except for saying that he is now prepared to comply with the order and submit the bills, no other argument has been raised.
At no point of time, the opposite party no. 1 gave any real apology. No reasons are forthcoming why he could not forward the bills with his objection to the District Inspector of Schools. However, during the pendency of this contempt petition, he took up an obstinate stand and only after he was found guilty, he is seeking further time to submit the bills. Considering all the circumstances, in the opinion of the Court a sentence of 15 days simple imprisonment and fine of Rs.2,000/- would suffice the interest of justice.
Accordingly, Sri Alok Sharma, opposite party no. 1 is sentenced to 15 days simple imprisonment and fine of Rs.2,000/- to be deposited within a month with the Registrar General of this Court. Upon failure to deposit the amount within time, he would further undergo simple imprisonment for a week.
The Court Officer is directed to send Sri Alok Sharma, contemnor, opposite party no.1 to Naini Central Jail through the Chief Judicial Magistrate, Allahabad to serve out the sentence."
The opposite party no. 1 preferred a contempt appeal no. 9 of 2009 and also made an application for stay of the aforesaid order. The Division Bench refused to stay it and passed the following order on 7.12.2009: "Heard Sri Irshad Ali, learned counsel for the opposite party-appellant. Sri D.K. Jaiswal, appears for opposite party No.1. He prays for and is granted three days time to file reply. The appellant will have three days thereafter to file a reply.
List for hearing on 14.12.2009.
Sri Irshad Ali, learned counsel for the appellant states that the appellant was taken into custody in court on 4.12.2009, in the contempt, and was sent to Naini Central Jail, and that pending hearing of the contempt appeal the order may be stayed and he may be released from the judicial custody.
We have gone through the circumstances in which the appellant had neither complied with the order in concluding the proceedings against the applicant- opposite party No.1 who was retired since last eight years and is not receiving pension, nor had shown any reasons as to why he could not forward the bills. The appellant also did not offer any real apology for failing to comply with the order to conclude the proceedings against the opposite party No.1.
In the concluding paragraph, the learned Judge has observed as follows:-
"At no point of time, the opposite party no. 1 gave any real apology. No reasons are forthcoming why he could not forward the bills with his objection to the District Inspector of Schools. However, during the pendency of this contempt petition, he took up an obstinate stand and only after he was found guilty, he is seeking further time to submit the bills. Considering all the circumstances, in the opinion of the Court a sentence of 15 days simple imprisonment and fine of Rs.2,000/- would suffice the interest of justice.
Accordingly, Sri Alok Sharma, opposite party no. 1 is sentenced to 15 days simple imprisonment and fine of Rs.2,000/- to be deposited within a month with the Registrar General of this Court. Upon failure to deposit the amount within time, he would further undergo simple imprisonment for a week.
The Court Officer is directed to send Sri Alok Sharma, contemnor, opposite party no.1 to Naini Central Jail through the Chief Judicial Magistrate, Allahabad to serve out the sentence."
Even in this contempt appeal, the opposite party-appellant has neither shown apology nor shown any reasons for complying with the judgment of the court dated 30.3.2006. He did not conclude the disciplinary proceedings against the respondent No. 1 (retired as Officiating Principal of the College on 30.6.1997) nor has constituted a disciplinary committee.
Sri Irshad Ali submits that if the appellant is released, he will carry out the orders of this court.
The circumstances brought on record, do not justify the prayer to consider the release of the appellant during the pendency of the hearing of the contempt appeal."
It is stated that till date the contempt has not been purged and the opposite party no. 1 has yet not complied with the order by sending the bills. It was expected that after the aforesaid order the opposite party no. 1 will see some reason and purge the contempt but yet he has not done so.
As he is not represented by any counsel today and his presence is necessary, issue non bailable warrants against Shri Alok Sharma, opposite party no. 1 to secure his presence on the next date.
List on 11.2.2010.
Order Date :- 12.1.2010 AK