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S.K. Saha And Anr. vs Gokul Chandra Dhara on 10 April, 1987

Calcutta High Court S.K. Saha And Anr. vs Gokul Chandra Dhara on 10 April, 1987Equivalent citations: 1988 CriLJ 21 Author: M K Mukherjee Bench: M K Mukherjee, M G Mukherji

JUDGMENT

Monoj Kumar Mukherjee, J.

1. This appeal under Section 19(1) of the Contempt of Courts Act, 1971 (‘Act’ for short) is directed against the judgment and order dt. Mar., 28, 1978 passed by a learned single Judge of this Court holding the two appellants guilty of civil contempt. The facts and circumstances leading to this appeal are as under.

2. Gokul Chandra Dhara, the respondent herein was, at all material times, an employee in the Post and Telegraph Department. He was confirmed in the post of an Inspector in the Railway Mail Service (R.M.S.) by an order dt. Sept. 18, 1972 passed by the Director of Postal Services (R.M.S.) West Bengal Circle, Calcutta; and thereafter by an order dt. July 18, 1974 he was promoted, on a temporary basis, to the post of an Assistant Superintendent of R.M.S. On or about Mar. 17,1975 the respondents, while on leave, was served with a memorandum dt. Mar. 14,1975 issued by Sri S. K. Sana, Senior Superintendent of the Calcutta R.M.S. Division (the appellant 1 herein), intimating that pursuant to an order passed by Sri Nirmal Kumar Verma, Director of Postal Services (R.M.S.) West Bengal Circle (the appellant No. 2 herein) on Mar. 10, 1975 he (the respondent) was reverted to the post of Inspector, R.M.S. and was transferred to Howrah R.M.S. Aggrieved by the said order the respondent made a number of representations to the higher authorities for its revocation but failed. The respondent then moved an application under Article 226 of the Constitution before a learned Judge of this Court challenging the order dt. Mar. 10,1975 and praying for appropriate writs for its annulment. On that application a Rule nisi was issued on Sept. 17,1975 and an order was passed for maintaining status quo as on that date, till disposal of the Rule. The learned Advocate for the respondent communicated the said order to all the opposite parties to the said application, including the two appellants herein, for information and compliance.

3. Alleging wilful disobedience of and non-compliance with the said order by not allowing him to join the post of Assistant Superintendent (R.M.S.) the respondents filed an application for initiating a proceeding for contempt against the opposite parties in the said Rule. On that application a Rule Nisi for contempt was issued by the learned single Judge who had issued the earlier Rule and passed the interim order. After hearing the parties the learned Judge made the Rule absolute against the two appellants and ordered them to pay a lump sum of Rs. 5,000/- to the respondent, with a direction that the said amount would be adjusted from the sums payable to him. Hence this appeal.

4. In the application praying for initiating a proceeding for contempt against the appellants and others, the respondent asserted that on the day the order was passed by this Court, that was on Sept. 17, 1975, he was functioning as an Assistant Superintendent (R.M.S.) and was being paid as such, consequently, he was entitled to continue in the said post and receive all emoluments attached thereto pursuant to the order of status quo passed by this Court. The appellants contested the above claim of the respondent and submitted that consequent upon the issuance of the order of reversion dt. Mar. 10,1975 the respondent ceased to function as an Assistant Superintendent (R.M.S.) and that necessarily meant that on the day the interim order of this Court was passed he was functioning as an Inspector. There was therefore no violation of the order of this Court, the appellants urged.

5. In negativing the contention of the appellants and accepting that of the respondent the learned single Judge held that the respondent’s status as on Sept. 17, 1975 was that of an Assistant Superintendent of R.M.S. and the appellants were not justified in interpreting the order of the Court in their own way to hold that the respondent was functioning as an Inspector on that date. According to the learned Judge if there appeared to be any doubt in the mind of the appellants about the real import or purport of the interim order of this Court it was just and proper for the appellants to refer the matter to the Court for clarification, variation or vacation of the interim order but it was not for them to venture to interpret the interim order made by the Court to suit their own purposes.

6. Mr. Banerjee, the learned Advocate appearing for the appellants raised various contentions in support of the appeal. He contended that the learned Judge failed to; consider that the initiation of the proceeding for contempt was barred by limitation under Section 20 of the Act, that the order reverting the respondent to the post of Inspector (R.M.S.) took effect immediately upon the passing thereof, and that the respondent himself admitted – long before the interim order was passed by this Court – that the order of reversion had been given effect to. All the contentions raised by Mr. Banerjee were refuted by Mr. Mukherjee appearing for the respondents and according to him to appellants wilfully disobeyed the interim order of this Court to forestall the legitimate claim of the respondent, originating from the interim order.

7. In this jurisdiction we are not called upon to decide whether the order of reversion is legal and valid and our attention has to be confined to the question whether the two appellants have wilfully disobeyed and violated the interim order of the Court directing the parties to maintain status quo. Admittedly, the order dt. Mar. 10, 1975 passed by the appellant 2 was communicated to the respondent on Mar. 17, 1975, when he was on leave, by the appellant 1 through his memorandum dt. Mar. 14,1975. It is also not in dispute that in his representation dt. April 4, 1975 made to the Post Master General, West Bengal Circle the respondent admitted his reversion but he submitted that it was abrupt and unexpected as his juniors had been allowed to work as Assistant Superintendent and prayed for revocation of the order of reversion.

8. While showing cause against the rule for contempt the appellants maintained that in the context of the above facts they took the view that on Sept. 17,1975 the respondent was holding the post of Inspector (R.M.S.) and, therefore, the order for maintenance of status quo meant that his status as an Inspector of R.M.S. should not be disturbed. In the ultimate analysis the view so taken by the appellants may not be found to be legally sustainable but then if such a view was taken bona fide, it cannot be said that it amounted to wilful disobedience of an order of the Court.

9. In our considered view a proceeding for civil contempt cannot be predicated upon the disobedience of an order or direction which provides scope for different reasonable and rational interpretations. Similarly, if the direction contained in an order is subject to or dependent upon determination of some other facts the violation of such directions cannot give rise to a proceeding for civil contempt.

10. It was however contended on behalf of the respondent that the view the appellants took in the instant case could not be said to be bona fide having regard to the fact that the respondent was paid his leave salaries calculated on the basis that he was functioning as an Assistant Superintendent (R.M.S.). The explanation offered by the appellants in this regard was that such payment was made to him to comply with the extant rules. The explanation of the appellants may not also be correct but then in the final analysis the question of bona fides about the interpretation given by the appellants comes in. It is of course true that in a given case a recalcitrant person may try to circumvent an order of the Court by giving it a patently wrong and untenable interpretation and taking a plea of mistaken interpretation in a proceeding for contempt. But the acceptability of such a plea as a bona fide one would depend on the facts of a particular case.

11. In the facts of the instant case we are unable to hold that the interim order of the Court was purposely interpreted by the appellants to circumvent the claim of the respondent. On the contrary, the interpretation given by them appears, prima facie, to be a reasonable one though in this jurisdiction we need not finally decide that question. The learned Judge also observed, as has already been noticed, that if the appellants had any doubt about the real purport of the order they could have approached the Court for its proper clarification, variation or modification; and failure to take recourse to such a procedure was considered by the learned Judge as an indication of absence of bona fides. We are unable to share the same view. It is true that such a step would have been discreet on the part of the appellants but indiscretion, without more, cannot be equated with mala fides.

12. For the foregoing discussions we are unable to hold that the appellants have wilfully disobeyed the order of the Court dt. Sept. 27, 1985, so as to make them guilty and hence liable for civil contempt. We, therefore, allow the appeal and set aside the impugned order. Since the payment of the sum of Rs. 5,000/- made to the respondent in terms of the impugned order is to be adjusted against the sums payable to him no modification in respect thereof need be made.

13. There will be no order as to costs.

M.G. Mukherji, J.

14. I agree.

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