JUDGMENT Sabhajeet Yadav, J.
1. This appeal is directed against the judgment and order of conviction and sentence dated 3.11.2004 passed by the learned Single Judge of this Court in Contempt Petition No. 2101 of 2004 Ram Babu Dwivedi v. Smt. Rama Devi and Ors. under the contempt of Courts Act whereby the Appellant is convicted and sentenced for a period of 15 days imprisonment with fine of Rs. 1000/- and in failure to deposit the aforesaid amount of fine the appellant is further directed to under go imprisonment for a period of one week.
2. The facts of the case in brief are that the opposite party was working as Tax Moharrir cum clerk in the Nagar Panchayat Kabrai District Mahoba. He was placed under suspension by an order dated 28.2.2003. The aforesaid order was challenged by him in writ petition No. 14661 of 2003. Vide order dated 4.4.2003 passed by writ court the aforesaid order has been stayed. The interim order dated 4.4.2003 is reproduced as under:
In view of the aforesaid submission it is hereby directed that the operation of the order passed by the respondent No. 5 dated 28,2.2003 (Annexure 1 of the writ petition) shall remain stayed and the petitioner will not be treated under suspension till the next date of listing. However, it is made clear that enquiry against the petitioner shall go on to which the petitioner undertakes to cooperate which will be taken to its logical end.
3. It is alleged that this interim order was. duly served on the opposite parties of the writ petition but they failed to comply with the order. The opposite party herein approached the District Magistrate who had also passed the orders directing the Executive Officer to comply with the order of writ court, but the order was not complied with hence the contempt petition.
4. On 23.7.2003 while issuing notice to the opposite parties in the contempt petition they were given one more opportunity to comply with the order within a month. It appears that aforesaid orders were not complied with and the counter affidavit was filed stating therein that the stay vacation application and Special Appeal against the order dated 4.4.2003 passed in the writ petition is pending. The opposite party No. 2 in the contempt application has filed his affidavit stating that he has already passed an order dated 19.8.2003 directing that the charge of post be handed over to the applicant but the opposite party No. 1 in the contempt petition did not comply with the aforesaid orders as such vide order dated 20.5.2004 the learned Single Judge gave an opportunity to the opposite party No. 1 in the contempt petition either to get the stay vacation application disposed of or obtain any interim stay order in special appeal. In the case no such order is obtained she was directed to appear in person. Thereafter, it appears that an order of removal of opposite party No. l was passed by the State Government. Opposite party No. l has challenged her removal and obtained stay order from the court, which is in operation. It was brought on record that the Special Appeal is time barred and till date the delay has not been condoned. The enquiry has been completed and the applicant has been exonerated from the charges but the opposite party No. 1 has not yet passed any final order thereon. It appears that on the basis of the aforesaid facts and circumstances of the case the Superintendent of Police, Mahoba was directed forthwith to take into custody Smt. Rama Devi opposite party No. l in contempt petition and to cause her production in custody before the Court on 18.8.2004. However, on 19.8.2004 learned Single Judge framed the charge against opposite party No. l which reads as under:-
You Smt. Rama Devi, Chairman, Nagarpalika, Kabrai District Mahoba show cause why you should not be brought and punish under Section 12 of the Contempt of Courts Act for wilful and deliberate violation of order dated 4.4.2003 in writ petition No. 14661 of 2003. Your reply can be filed on or before 13.9.2004 after serving a copy on the counsel for the applicant The case was directed to be listed on 17.9.2004 by which time the counsel for the applicant was also directed to file reply, if any.
5. On 18.9.2004 the learned Single Judge has observed that it transpires that the applicant has since been reinstated, however, his arrears of salary and current salary has not been paid. Whosoever is holding the charge may release the arrears and current salary of the applicant. The case was directed to be listed on 6th October 2004. On this date the learned Single Judge has permitted the counsel for the applicant to implead Shri Shiv Lal, S.D.M. Mahoba/Administrator, Nagar Palika, Kabrai District Mahoba appellant herein as opposite party No. 3 in the contempt petition and issued notice directing him to appear in the Court on date fixed 3.11.2004. On 3.11.2004 the appellant opposite party No. 3 of contempt application appeared before the Court and filed an affidavit stating that the order has been complied with and payment has been made to the applicant on 29.10.2004. However, he did not reply the specific allegations made in the affidavit accompanying to the impleadment application dated 6.10.2004.
6. On 3.11.2004 it appears that learned Single Judge while taking note of the allegations mentioned in the affidavit filed in support of the impleadment application has observed that serious allegations made in the aforesaid affidavit have not been specifically denied. The Court is left with no other option but to presume the same to be true and further went on recording a finding that Shri Shiv Lal, S.D.M., Mahoba is guilty under Section 12 of the Contempt of Courts Act. Although an apology was tendered but the same was not accepted. The Court has directed the learned Counsel for the parties to address on the question of sentence on the aforesaid date. After hearing the parties on the question of sentence the learned Single Judge has held that opposite party 3 has not only deliberately and wilfully refused to obey the command of the Court, but he has also harassed the applicant for approaching the writ court and the contempt court and a fresh charge sheet has been issued against the applicant, on the very same charges for which earlier inquiry had already been held in pursuance of the order of the writ court and he has been exonerated there from. Thus mere fine would not meet the ends of justice and recorded his opinion that the facts of the case demands that Shri Shiv Lal S.D.M. Mahoba be sentenced to simple imprisonment of 15 days and a fine of Rs. 1000/- payable to the Registrar General of this Court within a month. In case of failure to deposit the fine the opposite party No. 3 shall further undergo 7 days simple imprisonment in lieu thereof. Against this order of conviction and sentence the abovenoted appeal has been filed by the appellant (opposite party No. 3 of contempt application) under Section 19 of the Contempt of Courts Act.
7. We have heard Sri A.K. Bajpai, learned Counsel for the appellant and Sri D.S. Srivastava for the respondent.
8. The thrust of submission of the learned Counsel for the appellant is that on 6th October, 2004 the appellant has been impleaded first time as opposite party 3 in the contempt petition and prior to it he was not party to the proceeding in question and he was directed to appear in person on 3.11.2004 on which date the impugned order has been passed. Since the appellant has complied with the order passed by this Court referred earlier, therefore, he did not make specific reply to the averments contained in the affidavit filed in support of impleadment application moved by the applicant impleading the appellant as opposite party No. 3 in the contempt petition. However, he tendered his unconditional apology filed on 3.11.2004 stating that order passed by this Court in the writ petition as well as contempt petition has been complied with both in letters and spirit. Except the allegations contained in the affidavit filed in impleadment application neither any charge has been framed against the appellant nor he has been specifically asked to reply any charge in the contempt proceedings rather the learned Single Judge has relied upon the allegations made in the affidavit filed in support of impleadment application and straightway held the appellant guilty of the charge alleged in the affidavit filed in support of the impleadment application. Thus the appellant has been denied opportunity of hearing to have his say in the matter against the charge which were found proved against him without framing of any such charge and without asking his reply thereon. In support of his argument the learned Counsel for the appellant has further submitted that since the contempt proceedings is quasi criminal in nature therefore before conviction order is passed in the contempt proceedings it is necessary to frame the charge and prove the same against the appellant beyond reasonable doubt. Since no such steps were taken before convicting the appellant as such the conviction and sentence of imprisonment is wholly erroneous, illegal and against well known practice of this Court and not sustainable in the eye of law.
9. The learned Counsel for the appellant has further urged that in given facts and circumstances of the case the appellant cannot be held guilty of the charges of contempt levelled against him. Firstly on account of fact that against the interim order passed in the writ petition the stay vacation Application has already been moved by the respondents in the writ petition along with the counter affidavit and special appeal has also been filed against the same interim order along with the delay condonation application and stay application, but without waiting for final disposal of stay vacation application moved in writ petition as well as stay application moved in special appeal filed against the interim order passed by learned Single Judge in the writ petition in question he proceeded with the contempt matter and punished the appellant in such contempt proceeding before disposal of stay vacation application as well as stay application in special appeal rendering the aforesaid proceeding infructuous. Secondly in any view of the matter the appellant did not commit any contempt of this Court as he did not violate or defied any interim order passed either in the writ petition or in the contempt petition referred earlier. In case any delay was caused in compliance of the orders passed by the writ court as well as contempt court the delay was not on account of the personal fault of the appellant rather it was unavoidable in given facts and circumstances of the case. At any rate the delay in compliance cannot be held to be wilful defiance or deliberate defiance of any interim order passed by writ court or contempt court. Thus the impugned judgment and order passed by learned Single Judge is not sustainable in the eye of law. Contrary to it learned Counsel appearing for opposite party has supported the impugned judgment and order passed by learned Single Judge and made serious attempt to justify the impugned order.
10. Having gone through the rival contention and submission of the parties following question arises for consideration in this appeal.
1. As to whether in given facts and circumstances of the case the learned Single Judge was justified in proceeding with the contempt application before the disposal of the stay vacation application moved on behalf of the respondents in the writ petition in as much as stay application moved in the special appeal filed against the interim order dated 4.4.2003 passed in Civil Misc. Writ Petition No. 14661 of 2003?
2. As to whether learned Single Judge was justified in holding the appellant guilty of contempt without framing any specific charge against him and without asking any reply thereon from the appellant?
3. As to whether the appellant is guilty of committing any wilful and deliberate contempt on account of any wilful and deliberate defiance of interim order passed by the writ court and/or in the contempt proceedings?
11. Now coming to the first question as to whether As to whether in given facts and circumstances of the case the learned Single Judge was justified in proceeding with the contempt proceedings before the disposal of the stay vacation application moved on behalf of the respondents in the writ petition in as much as stay application moved in the special appeal filed on behalf of the respondents against the interim order dated 4,4.2003 passed in Civil Misc. Writ Petition No. 14661 of 2003? In this connection at the very out set it is necessary to point out that the Contempt of Courts Act 1971 defines contempt of courts and civil contempt as under :
2. Definitions.--In this Act, unless the context otherwise requires.
(a) Contempt of Court" means civil contempt or criminal contempt;
(b) "Civil contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court;
12. From a bare reading of the aforesaid provisions of Act it is clear that before holding a person guilty of civil contempt it is necessary to prove that there is a wilful disobedience by the said person in judgment, decree, direction, order, writ or other process of the court or wilful breach of an undertaking given to a Court. Thus primary function of this Court dealing with the contempt proceedings in civil contempt is of the nature of execution court to ensure compliance of the judgment, decree, direction, order writ or other process of the court, the violation of which is complained of in such proceedings.
13. Now coming to the question in issue it is necessary to point out that Hon'ble Apex Court has dealt with similar issue earlier at various occasions. In J & K v. Mohd. Yaqoob Khan and Ors. reported in (1992) 2 UPLBEC 1166. In para 5 and 6 of the judgment Hon'ble Apex Court observed as under:-
5. We find great force in the argument of Mr. Salve that so long the stay matter in the writ petition was not finally disposed of, the further proceeding in the contempt case was itself misconceived and no orders therein should have been passed. Mr. Phandare appearing on behalf of the writ petitioner, who is respondent before us, has strenuously contended that the orders passed in the contempt proceedings should be treated to have disposed of the stay matter in the writ petition also. He laid great emphasis on the fact that the counsel for the respondents in the writ petition had been heard before the orders were issued. He invited our attention to the merit of the claim. It is argued that the order dated March 19, 1990 must, in the circumstances, be treated to have become final and, therefore, binding on the State and the High Court was right in issuing the further direction by way of implementation of earlier order.
We do not agree. The scope of a contempt proceeding is very different from that of the pending main case yet to be heard and disposed of (in future). Besides, the respondents in a pending case are at a disadvantage if they are called upon to meet the merits of the claim in a contempt proceeding at the risk of being punished. It is, therefore, not right to suggest that it should be assumed that the initial order of stay got confirmed by the subsequent orders passed in the contempt matter.
6. We, therefore, hold that the High Court should have first taken up the stay matter without any threat to the respondents in the writ case of being, punished for contempt. Only after disposing it of, the other case should have been taken up. It is further significant to note that the respondents before the High Court were raising a serious objection disputing the claim of the writ petitioner. Therefore, an order in the nature of mandatory direction could not have been justified unless the Court was in a position to consider the objections and record a finding, prima facie in nature, in favour of the writ petitioner. Besides challenging the claim on merits, the respondents is entitled to raise a plea of no maintainability of a writ application filed for the purpose of executing a decree. It appears that at an earlier stage the decree in question was actually put in execution when the parties are said to have entered into a compromise. According to the case of the State the entire liability under the decree (treated with the compromise) has already been discharged. The dispute, therefore, will be covered by Section 47 of the Code of Civil Procedure. It will be a serious question to consider whether in these circumstances the writ petitioner was entitled to maintain his application under Article 226 of the Constitution at all. We do not want to decide any of these controversies between the parties at this stage except holding that the orders passed in the contempt proceeding were not justified, being pre-mature, and must, therefore, be entirely ignored. The High Court should first take up the stay matter in the writ case and dispose it of by an appropriate order. Only thereafter it shall proceed to consider whether the State and its authorities could be accused of being guilty of having committed contempt of Court.
14. The law laid down in Mohd. Yaqoob's Khan's case (supra) has been followed in subsequent decision of the Apex Court in Modern Food Industries (INDIA) Ltd. and Anr. v. Sachidan and Dass and Anr. 1995 Supp. (4) SCC 465 wherein in para 4, 5 and 6 of the decision Hon'ble Apex Court held as under :-
4. Before the High Court, appellants urged that before any contempt proceedings could be initiated, it was necessary and appropriate for the Division Bench to examine the prayer for stay, or else, the appeal itself might become infructuous. This did not commend itself to the High Court which sought to proceed with the contempt first. We are afraid, the course adopted by the High Court does not commend itself ax proper. If, without considering the prayer for committal for contempt, the appellants may find, as has now happened, the very purpose of appeal and the prayer for interlocutory Slav infructuuo7us. It is true that a mere filing of an appeal and an application for stay do not by themselves absolve the appellants from obeying the order under appeal and that any compliance with the learned Single Judge's order would he subject to the final result of the appeal. But then the changes brought about in the interregnum in obedience of the order under appeal might themselves be a cause and source of prejudice. Wherever the order whose disobedience is complained, about is appealed against and stay of its operation is pending before the Court, it will be appropriate to take up for consideration the prayer for slay either earlier or at least simultaneously with the complaint for contempt To keep the prayer for stay stand by and to insist upon proceeding with the complaint for contempt might in many conceivable cases, as here, cause serious prejudice. This is the view taken in Slate of J&K v. Mohd. Yaqoob Khan.
5. In the present case, under the threat of proceedings of contempt, the appellants had to comply with the order of the learned Single Judge notwithstanding the pendency of their appeal and the application for stay. The petitioners are confronted with a position where their stay application is virtually rendered infructuous by the steps they had to lake on threat of contempt.
6. We, accordingly, direct that all further proceedings in the contempt proceedings he stayed. It will he appropriate for the High Court to take up and dispose of the application for stay without reference to the developments in the interregnum, namely, that the respondent had to obey the order of the learned Single Judge under pain of proceedings of contempt. Depending upon the outcome of the appellants application for stay, the further question whether or not the reinstatement should be reversed would arise.
15. Again in a slightly different factual backdrop Hon'ble Apex Court has considered similar controversy in Dr. Phunindra Singh and Ors. v. K.K. Sethi and Anr. wherein in para 2 of the decision the Hon'ble Apex Court has observed as under :
2. Heard learned Counsel for the parties. In our view, in the facts of the case, particularly when the order passed by the learned Single Judge of the High Court was not stayed by the Division Bench the contempt petition should have been disposed of on merits instead of adjourning the same till disposal of the appeal, so that question of deliberate violation of the subsisting order of the Court is considered and enforceability of the court is order is not permitted to be diluted. In the acts of the case, we feel that the contempt petition should be disposed of within a period of three months from the date of the communication of this order and we order accordingly. It is further directed that before disposal of the contempt petition, the pending appeal should not be taken up for hearing. The appeal is accordingly disposed of.
16. In Suresh Chandra Poddar v. Dhani Ram and Ors. , the Hon'ble Apex Court has considered again similar controversy and in para 9 and 11 of the decision held as under:-
9. Section 12 of the contempt of Courts act, 1971 has indicated a caution that while dealing with the powers of contempt, the court should be generous, in discharging the contemner if he tenders an apology to the satisfaction of the court. In the present case the apology tendered was found satisfaction of the court. In the present case the apology tendered was found to be not genuine by the Tribunal. We are dismayed, if not distressed, that despite delineating on all the steps adopted by the appellant for challenging the order of the Tribunal before the High Court and despite the fact that (he appellant had implemented the order even though there was no time schedule to do so, the Tribunal has chosen to depict the apology tendered by the appellant as one without contrition.
11. Even if the appellant had not implemented the order and. if the appellant had brought to the notice of the Tribunal that the order of the Tribunal is under challenge before the High Court under Article 226 of the Constitution of India (the course which has been judicially recognized by a seven-Judge Bench of this Court in L. Chandra Kumar v. Union of India the Tribunal should have been slow to proceed against the party in a contempt action. Of course it can be said that no stay was granted by the court when the appellant moved the Division Bench of the High Court under Article 226 of Constitution, Not granting the stay by itself is not enough to speed up proceedings against a person in contempt because the very order is yet to become final. At any rate the Tribunal should have directed the appellant to implement the direction, in the absence of the stay order from the High Court, within a time framed fixed by it. We would have appreciated if the Tribunal had done so and then considered whether action should be taken in the event of the non implementation of the order after the expiry of the said time-frame.
17. Thus from a close analysis of the decisions of Hon'ble Apex Court referred herein before it appears that the three Judges Bench of Hon'ble Apex Court in Mohd. Yaqoob Khan's case (supra) has held that so long the stay matter in the writ petition was not finally disposed of the further proceeding in the contempt case was itself misconceived and no orders should have been passed. The Hon'ble Apex Court has further held that in the circumstances of the case, the contempt proceeding is premature and liable to be ignored. In the aforesaid case the contempt proceedings were drawn on account of non-compliance of interim stay order against which stay vacation application of respondents in writ petition was pending before the High Court. The same view has been reiterated by two Judges Bench of Hon'ble Apex Court in Modern Food Industries case (supra) wherein final order of learned single Judge was challenged at appellate forum of same High Court and stay application in appeal was pending consideration, meanwhile contempt proceedings were drawn to implement the order of learned single Judge before disposal of stay application. In the aforesaid facts and situation of the case Hon'ble Apex Court has held that wherever the order whose disobedience complained about is appealed against and stay of its operation is pending before the court, it will be appropriate to take up for consideration the prayer for stay either earlier or atleast simultaneously with complaint for contempt. To keep the prayer for stay stand by and to insist upon proceeding with the complaint for contempt might in many conceivable cases, as here, cause serious prejudice. Although in Dr. Phurindra Singh & others case (supra) two Judges division Bench of the Hon'ble Apex Court has taken different view in the matter without noticing earlier decision of larger and co-ordinate Bench but it was in a slightly different factual backdrop of the case, wherein the order passed by learned single Judge was not stayed by the Division Bench of the same High Court, the Hon'ble Apex Court has taken different view in the matter and has held that when the order passed by learned single Judge of the High Court was not stayed by Division Bench, the contempt petition should have been disposed of on merits instead of adjourning the same till disposal of appeal so that the question of deliberate violation of subsisting order of the court is considered and enforceability of the court's order is not permitted to be diluted. Again in Suresh Chandra Poddar's case (supra) two Judges Division Bench of Hon'ble Apex Court has taken virtually same and similar view as was taken in first two cases referred earlier but without making reference of those cases and in given facts and situation of the case under consideration Hon'ble Apex Court has held that not granting the stay by itself is not enough to speed up proceedings against a person in contempt because the very order is yet to become final. At any rate the tribunal should have directed the appellant to implement the direction, in absence of stay order from the High Court, wherein a time frame fixed by it. We would have appreciated if the tribunal had done so and then considered whether the action should be taken in the event of the non-implementation of the order after expiry of said time frame.
18. Now before examining the extent of applicability of law laid down by the Hon'ble Apex Court in given facts and circumstances of the case, the question arises for consideration as to whether earlier decision of larger Bench of Hon'ble Apex Court rendered in Mohd. Yaqoob Khan's case followed in Modem Food Industries Case would prevail and be binding upon this Court or later decision of two Judges smaller Bench, of Hon'ble Apex Court rendered in Dr. Phunindra Singh and others case? In this regard it is necessary to point out, as discussed earlier that virtually there is no real conflict between the aforesaid decisions. The later decision has been rendered by the Hon'ble Apex Court in altogether different factual back drop of the case. Therefore, the law laid down by Hon'ble Apex Court should be understood in context of the case in which the aforesaid decisions were rendered, but assuming for the sake of clarification, if there exist any direct conflict between the decision of earlier larger Bench of Apex Court and the decision of later smaller Bench, which of the either decisions have binding effect upon this Court, is a question, has already received consideration of Hon'ble Apex Court earlier at several occasions.
19. In N. Meera Rani v. Government of Tamil Nadu and Anr. , in para 21 of the decision Hon'ble Apex Court has held that the decision of later Benches following a Constitution Bench decision can not be construed at variance with the larger Bench decision. For ready reference para 21 of the decision is reproduced as under :
21. A review of the above decisions reaffirms the position which was settled by the decision of a Constitution Bench in Rameshwar Shaw case. The conclusion about validity of the detention order in each case was reached on the facts of the particular case and the observations made in each of them have to be read in the context in which they were made. None of the observations made in any subsequent case can be construed at variance with the principle indicated in Rameshwar Shaw case for the obvious reason that all subsequent decisions were by benches comprised of lesser number of judges. We have dealt with the matter at some length because an attempt has been made for some time to construe some of the recent decisions as modifying the principle enunciated by the Constitution Bench in Rameshwar Shaw case.
20. In Union of India and Anr. v. K.S. Subramanian of the decision Hon'ble Apex Court has held as under:
12. We do not think that the difficulty before the High Court could be resolved by it by following what it considered to be the view of a Division Bench of this Court in two cases and by merely quoting the views expressed by larger benches of this Court and then observing that these were insufficient for deciding the point before the High Court. It is true that, in each of the cases cited before the High Court, observations of this Court occur in a context different from that of the case before us. But, we do not think that the High Court acted correctly in skirting the views expressed by larger Benches of this Court in the manner in which it had done this. The proper course for a High Court, in such a case, is to try to find out and follow the opinions expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court. That is the practice followed by this Court itself. The practice has now crystallized into a rule of law declared by this Court. If, however, the High Court was of opinion that the views expressed by larger benches of this Court were not applicable to the facts of the instant case it should have said so giving reasons supporting its point of view.
21. The aforesaid view has been reiterated by Hon'ble Apex Court by quoting the same in para 122 of the decision rendered in State of Orissa and Ors. v. Titaghur Paper Mills Company Ltd. and Anr. 1985 (supp.) S.C.C. 280.
22. Thus in view of law laid down by the Hon'ble Apex Court we have no hesitation to hold that law laid down by earlier larger Bench of Hon'ble Apex Court will prevail over the later smaller Bench decision of the Hon'ble Apex Court, even if later smaller Bench of Hon'ble Apex Court considered the earlier larger Bench decision the same cannot be construed at variance with the larger Bench decision.
23. Now having regard to the law laid down by earlier larger Bench of Hon'ble Apex Court in Mohd. Yaqoob Khan's case followed in subsequent two Judges Division Bench of Apex Court it was necessary for the learned single Judge to defer/postpone the contempt proceedings till the disposal of the stay vacation application moved against the interim order dated 4.4.2003 passed in writ petition or till the disposal of the stay application moved in special appeal or it was necessary for the learned Single Judge to examine the bonafide of the respondents of the writ petition in moving such stay vacation application as well as in filing such special appeal against the interim order in question and come to a definite conclusion as to whether the respondents of the writ petition have genuinely and bonafide moved the stay vacation application and filed the special appeal or not. Unless such efforts were made by the learned Single Judge it was not desirable for the learned Single Judge to proceed with the contempt proceedings.
24. However from the perusal of impugned order it appears that at one stage of proceedings, the learned Single Judge has given an opportunity to the opposite party in the contempt petition to get the stay vacation application moved in the writ petition disposed of or obtain any interim order in the special appeal by a specific date and time with caution that In case the opposite party would fail to do so, learned Single Judge would proceed with the contempt matter and it appears that on such failure within such time frame, the learned Single Judge has proceeded with the contempt proceeding without awaiting any more and without examining the genuineness and bonafide of the actions of the opposite party in moving the stay vacation application in writ petition and stay application in special appeal against the interim order passed in writ petition in question. Thus in our considered opinion the action of the learned Single Judge in this regard does not satisfy the law laid down by the Hon'ble Apex Court. However, having regard to the facts and circumstances of the case and subsequent developments, which have taken place, we need not to go into this question further more.
25. Now next question arises for consideration as to whether the learned Single Judge was justified in punishing the appellant for committing contempt of the Court without framing and intimating any charge against him and without asking his reply thereon and without affording any opportunity of hearing in respect of such charge? In this connection, it is necessary to point out that the proceedings for contempt are quasi criminal in nature and court must be satisfied about the guilt of contemner beyond reasonable doubt before action is taken there on. In the matter of B. Yagnanarayaniah, AIR 1974 (Madras) 313, in para 11 and 12 of the decision Madras High Court has held as under :
11. In view of these decisions and the statutory provisions, it is quite clear that this Court has jurisdiction to initiate contempt proceedings suo motu even in a civil contempt as defined in Section 2 of Act 70 of 1971, that no particular form of procedure is necessary so long as the proceedings are initialed giving an opportunity to the contemnor to defend himself and that Article 21 of the Constitution is not in any way violated thereby. We are also satisfied that the procedure adopted in this case was correct, that the appellant was made aware of the charge against him and that he was given a fair opportunity to defend himself. The order dated. 9.2.1973, itself gave full reasons which in the opinion of the learned Judge made him think that the title deeds were with the appellant. When he was asked to show cause why he should not he proceeded with for contempt, the appellant filed an affidavit, he was heard and only thereafter the order imposing the punishment was passed.
12. Before dealing with the merits, we must point out that proceedings for contempts are quasi-criminal in nature as pointed out by the Privy Council in Ambard v. Attorney-General for Trinidad and Tobago 1936 AC 322 and 329 : AIR 1936 PC 141, referred to by the Supreme Court in 1954 SCR 454 and 460 : AIR 1954 SC 186 : 1954 Cri LJ 460, and that therefore we must be satisfied about the guilt of the appellant beyond reasonable, doubt.
26. In the above noted decision Madras High Court has placed reliance on the decision of Their Lordship of Privy Council and Hon'ble Apex Court, In Andre Paul Terence Ambard v. The Attorney-General of Trinidad and Tobago AIR 1936 Privy Council 141 at page 143 Their Lordship of Privy Council held as under:
But apart from any question of this kind their Lordships have come clearly to the conclusion that it is competent to His Majesty in Council to give leave to appeal and to entertain appeals against orders of the Courts overseas imposing penalties for contempt of Court. In such cases the discretionary power of the Hoard will no doubt he exercised with great care. Everyone will recognize the importance of maintaining the authority of the Courts in restraining and punishing interferences with the administration of justice whether they he interferences in particular civil or criminal cases or lake the form of attempts to depreciate the authority of the Courts themselves. It is sufficient to say that such interferences when they amount to contempt of Court are quasi-criminal acts, and orders punishing them should, generally speaking, he treated as orders in criminal cases, and leave to appeal against them should only he granted on the well-known principles on which leave to appeal in criminal cases is given.
27. In Sukhdev Singh v. Hon'ble C.J., S. Teja Singh and the Hon'ble Judges of the Pepsu High Court at Patiala AIR 1954 SC 186, in para 24 of the decision Hon'ble Apex Court held as under :
24... We hold, therefore, that the Code of Criminal Procedure does not apply in mailers of contempt triable by the High Court. The High Court can deal with it summarily and adopt its own procedure. All that is necessary is that the procedure is fair and that the contemner is made aware of the charge against him and given a fair and reasonable opportunity to defend himself. This rule was laid down by the Privy Council in "In re Pollard' (1845) LR 2 PC 106 at p. 120 (N), and was followed in India and in Burma in Tallabhdas Jatram v. Narronjee Permanand 27 Bom 394 at p. 399 (O) and Ebrahim Mamoojee Parekh v. Emperor' AIR 1926 Rang 188 at procedural provision. 189-190 (P), In our view that is still the law.
28. In Aswini Kumar Rath and Ors. v. P.C. Mukherjee and Ors. , in para 11 of the decision Court held as under :
11. In my judgment, the analogy of execution proceeding would not extend to a proceeding for contempt. Contempt of court for disobedience of an order of Court, except where it relates solely to a private injury, is an offence of a criminal nature, and a proceeding relating to the breach of a prerogative writ is no exception to this proposition R. v. Ledgard (184) 1 Q.B. 616(619), became it interferes with the liberty of a persons; R. v. Poplar Borough Council 1922-1 KB 95 (127); hence the proceeding all through takes the shape of a person charged with an offence of which he has to exculpate himself (1841) 1 Q.B. 616 (ibid), and the guilt of the respondent has to be strictly established both substantively and procedurally vide Oswald on Contempt, p. 17 : Gorden v. Gordon (1946) 1 All. E.R. 247 (253) C.A.
29. Thus in view of clear legal position there can be no scope for doubt to hold that proceeding for contempts are quasi-criminal in nature, therefore, guilt must be established beyond reasonable doubt. Although the Code of Criminal Procedure does not apply in the matters of contempt triable by the High Court, but the High Court can deal with it summarily and adopt its own procedure. All that is necessary is that the procedure is fair and that contemner is made aware of the charge against him and given a fair and reasonable opportunity to defend himself, before holding him guilty of committing any contempt. Therefore, it was necessary for learned single Judge to frame specific charge against the appellant and intimate him asking his reply thereon and after affording him opportunity of fair hearing, if he would have been found guilty of committing contempt for wilful disobedience of the order passed by this Court only in that eventuality any order punishing the appellant could be justified. But from the perusal of the records, it is clear that on 6th October 2004 the appellant was impleaded as opposite party No. 3 in the contempt application for the first time at the instance of respondent herein through an impleadment application. There upon only notice was issued to the appellant directing him to appear in person before the court on 3.11.2004. On that day also neither any specific charge either of non-compliance of the order was framed nor any charge regarding delayed compliance of the order passed by such courts has been framed and served upon the appellant nor he was asked to reply any such charge rather learned Single Judge has straightway assumed the facts stated in the affidavit filed in support of impleadment application as correct and held the appellant guilty of committing contempt of this court. This approach of learned single Judge in our considered opinion, does not satisfy requirement of law and falls short of it, therefore held to be erroneous and contrary to law. Accordingly the impugned order passed by learned Single Judge is not sustainable in the eye of law and liable to be set aside.
30. Now coming to the next question as to whether the appellant was guilty of wilful defiance of the interim order dated 4,4.2003 passed by writ court and the order dated 18.9.2004 passed by contempt court or not?. In this connection it is necessary to deal with legal aspect of the matter first before examining the factual aspect of the matter involved in the case. It is well settled that disobedience of the order of court in order to constitute punishable contempt must be wilful and deliberate, whether a particular acts and conduct would be amount to wilful and deliberate defiance of the order passed by the court has been under consideration at various occasion before different High Courts. In Manohar Lal v. Sri Prem Shankar Tandon and Ors. . In para 16, 17 and 18 of the decision a Division Bench of this Court held as under :-
16. A civil contempt has been very well defined in the case of O'Shea v. O'Shea and Parnell (1890) 15 P.D. 59-
"When a man does not obey an order of the Court made to some civil proceeding, to do or abstain from doing something as where an injunction is granted in an action against a defendant, and he does not perform what he is ordered to perform, and then a motion is made to commit him for contempt that is really only a procedure to get something done in the action, and has nothing of a criminal nature in it.
It is true that even a civil contempt, when proceedings are taken under the (Contempt of Courts Act, assumes a quasi-criminal nature: but there are certain principles which have to be borne in mind in considering the cases of civil contempt, which is different from a criminal contempt. In a civil contempt disobedience, in order to be punishable as a contempt, must be wilful and not merely casual, accidental and unintentional. It was held in P.S. Tuljaram Rao v. Governor of Reserve Bank of India AIR 1939 Mad 257 (SB):
"The power to commit for contempt of Court is not to he lightly used and should he reserved for cases where the contempt is deliberate and of such a nature that committal is called for. "
17. Another fact which has to be considered is that contempt proceedings are of an extraordinary nature and they give special power to all the Courts of record. It is a power which is exercise summarily and the Court should be reluctant to exercise this extraordinary power particularly in a civil contempt, and this power should never he exercise if the offence complained of is of a slight or trifling nature and does not cause any substantial loss or prejudice to he complainant. This power should be exercised with scrupulous care and only when the case is clear and beyond reasonable doubt. See Emperor v. Murli Manohar Prasad AIR 1929 Pat. 72 (FB) and in the matter of Muslim Outlook, Lahore, AIR 1927 Levelled against him 610 (SB).
18. We should also bear in mind that so far as Prem Shanker Tandon, opposite party No. 1 is concerned, he is Compensation Officer and his actions would be presumed to have been regularly performed under illustration (e) of Section 114 of the Indian Evidence act. In the case of breach of an order of the Court, if it is done by a private person, apparently to gain some unlawful advantage, the presumption would be that, that infringement or disobedience was wilful, but we think in the case of an official, if he commits a certain disobedience, there would be a presumption in his favour that he had in the ordinary circumstances, done a bonafide and unintentionally.
This presumption is not irrebuttable, an, if there are circumstances to show (hat the official was not acting bona fide, then his action could be treated as wilful.
31. In Aswini Kumar Rath and Ors. v. P.C. Mukherjee and Ors. , in para 7 the Court held as under:-
7. In order to punish a person for contempt of court, it must be established not merely that the order of the Court has been violated but also that such violation has been wilful; vide B.K. Kar v. Chief Justice ; S.S. Roy v. State of Orissa , Mr Roy, learned Counsel for the petitioners does not contest this proposition of law but urges that both conditions mentioned have been established in the instant case.
32. Thus in view of the aforesaid discussions, it is clear that the power of courts of record is extra-ordinary in nature, therefore, the courts should be reluctant to exercise this power particularly in a civil contempt and this power should not be exercised if the offence complained of is of a slight or trifling nature and does not cause any substantial loss or prejudice to the complainant. Even a civil contempt, when the proceedings are taken under the contempt of courts Act, assumes a quasi-criminal nature, therefore, this power should be exercised with scrupulous care and only when the case is clear and beyond reasonable doubt. Before punishing a person under the provisions of Contempt of Court Act there must be wilful and deliberate defiance of the order of court, it should not be merely accidental and casual in nature. It is not each and every defiance and disobedience of the order of court can be held wilful disobedience of the order of the court. To arrive at a correct conclusion, every aspect of the matter referred herein before inasmuch as bonafide of the contemner is to be examined by the court dealing with contempt proceedings.
33. Now coming to the facts of the case again it is to be seen that on 18.9.2004 learned Single Judge has passed an order that the applicant has since been reinstated, however his arrears of salary and current salary has not been paid. It was also brought on record that Chairman has been removed from the post against which she has preferred writ petition, wherein an interim order has been passed but till date the opposite party No. 1 has not been allowed to discharge the function of Chairman and Sub-Divisional Magistrate is holding the charge and is exercising the power. Thereupon the learned Single Judge has directed that whosoever holding the charge may release the arrears and current salary to the applicant. From perusal of the affidavit filed in support of the stay application moved in the above noted appeal it appears that it has been averred that on 25.9.2004 the copy of order of High Court dated 18.9.2004 was placed before the appellant who vide his order dated 29.9.2004 directed the Executive Officer, Nagar Panchayat, Kabrai, Mahoba to prepare the bill of arrears and current salary of the petitioner/applicant and release the same in compliance of the order of High Court. A copy of order dated 29.9.2004 passed by appellant is on record as Annexure-3 of the affidavit. In the meantime by the order of District Magistrate, Mahoba Sri Bhagwan Das, Executive Officer has joined as Executive Officer, Nagar Panchayat, Kabrai, district Mahoba on 12.10.2004 and Sri Devi Dayal Yadav, Executive Officer was relieved for working at his original post at Nagar Panchayat, Kulpahar from Nagar Panchayat, Kavrai, district Mahoba. On 29.10.2004 the new Executive Officer Sri Bhagwan Das submitted the bills of arrears and current salary of the petitioner before the appellant who passed the same immediately on the same day. Thereafter a cheque of Rs. 1,08,302/- was given to the applicant-opposite party towards his arrears and current salary, who have received the same on 29.10.2004. A Photostat copy of letter given by Executive Officer, Nagar Panchayat, Kavrai, district Mahoba to the opposite party (applicant), which had been received, is enclosed as Annexure-4 of the affidavit. Thus the order dated 4.4.2003 passed in the writ petition and order dated 18,9.2004 passed in the contempt petition have been fully complied with by appellant in its letter and spirit. As a matter of fact as appears from Annexure-3 of the affidavit the appellant has already passed the necessary orders on 29.9.2004 in compliance of the order dated 18.9,2004 which was received by the appellant on 25.9,2004 without causing any delay in the matter. In case any delay was caused in full compliance of the order dated 18,9.2004 by 29.10.2004 the same cannot be said to be wilful, disobedience or defiance of the order passed by the court rather it was on account of transfer and posting of Executive Officers of concerned Nagar Panchayat who were required to prepare necessary bills for payment of arrears of salary of the applicant (opposite party).
34. Thus in given facts and circumstances of the case, we are of the considered opinion that the delayed compliance of order passed by writ court as well as contempt court referred earlier cannot be said to be wilful defiance and disobedience of the interim order either passed by writ court or order dated 18.9.2004 passed by contempt court and the appellant cannot be held guilty of committing any contempt punishable under the provisions of Contempt of Court Act. Besides this, in the affidavit filed in the appeal, the appellant has also tendered his unconditional apology as it was tendered before the learned Single Judge dealing with the contempt application. In given facts and circumstances of the case we do not find any justification to reject the same accordingly the unconditional apology tendered by the appellant is hereby accepted.
35. Thus in view of the aforesaid discussions and observations made herein above, the impugned judgment and order dated 3.11.2004 passed by learned Single Judge in contempt petition No. 2101 of 2003 Ram Babu Dwivedi v. Smt. Rama Devi and Ors. is wholly erroneous and not sustainable in the eyes of law and is liable to be set aside. Accordingly the same is set aside by this Court. The contempt notice issued against the appellant is hereby discharged.
36. In the result, the appeal succeeds and allowed.
37. There shall be no order as to costs.