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Smt. Farhana Siddiqui, D.I.O.S.-Ii, Allahabad v. Phuleshwar - CONTEMPT APPEAL (CRIMINAL) No. 16 of 2004  RD-AH 2924 (15 September 2005)
Sending the contemnor to jail is an exception
Contempt proceedings are quasi-criminal and strict standard of proof is required.
Writ petition dismissed-restored-interim order passed earlier would revive automatically COURT NO. 34
CONTEMPT APPEAL NO. 16 OF 2004
Smt. Farhana Siddiqui ------------- Appellant
Phuleshwar ------------- Respondent
CONTEMPT APPEAL NO. 17 OF 2004
Satyanand Srivastava ------------- Appellant
Phuleshwar & Ors. ------------- Respondent
Hon'ble Dr. B.S. Chauhan, J.
Hon'ble Shishir Kumar, J.
(By Hon'ble Dr. B.S. Chauhan, J.)
Both these appeals have been preferred under Section 19 of the Contempt of Courts Act, 1971, against the judgment and order of the learned Single Judge dated 20th September, 2004 in Civil Misc. Contempt Petition No.522 of 2001, by which both the appellants have been held guilty of willful and deliberate defiance of the order of this Court dated 21.02.2000 passed in Writ Petition No. 2022 of 1995 and affirmed vide order dated 19.04.2000 in Special Appeal No. 295 of 2000. Punishment of one months simple imprisonment with a fine of Rs.2,000/- has been awarded to each of the appellants and further Rs.22,918/- as interest on the amount has been directed to be paid by each appellant to the respondent-employee. In case of default of payment of fine, further to undergo 15 days simple imprisonment.
The facts and circumstances giving rise to this case are that respondent no.1, who was a Class-IV employee in an Intermediate College, Allahabad recognized and aided institution, was restrained from functioning by the Principal of the College with effect from 13.07.1994 treating his Date of Birth as 13.07.1934 instead of 13.07.1944.
The respondent Phuleshwar approached the District Inspector of Schools (in short DIOS) questioning the action of the Principal of the institution on the ground that his date of birth according to School Leaving Certificate was 13.7.1944 and that the correction in the date of birth made on the basis of the Manager's return was an erroneous approach adopted by the Principal. It is born out from the facts that the basis of the change of the date of birth was contested by the Principal on the ground that if the date of birth of the respondent no. 1 as claimed by him is taken to be correct, then at the time of his appointment in 1959, the respondent was only 15 years of age, and as such was a minor, not entitled for appointment. The DIOS, however, reversed the conclusion drawn by the Principal of the institution and passed an order on 29.11.1994 holding that the date of birth of the respondent was 13.7.1944 and not 13.7.1934, in view of the government order dated 28th May, 1974, which in his opinion did not permit any change of date of birth after a long lapse of time. The DIOS annulled the order of the Principal and respondent was directed to be treated in regular employment.
The Principal of the institution challenged the order of the DIOS dated 29.11.1994 by means of Writ Petition No. 2022 of 1995, which was entertained by this Court and the following interim order was passed on 25.1.1995.
"The learned Standing Counsel ha accepted notice on behalf of respondent nos. 1 to 3. Shri Krishnaji Khare has put in appearance on behalf of the respondent no. 4. They pray for and are granted three weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within one week thereafter. List the petition for admission after the expiry of the aforesaid period on 10.4.95.
Until further orders operation of the impugned order dated 6.1.95 and 29.11.94 passed by the respondent nos. 1 and 2 respectively (Annexure 1 and 2 to the writ petition) will remain stayed."
The aforesaid interim order continued to be operative throughout the pendency of the writ petition, as a result whereof the respondent Phuleshwar could not receive the benefits arising out of the order of the DIOS dated 29.11.1994. The writ petition was dismissed in default on 8.12.1999 which order was recalled on 27.1.2000 and petition was restored to its original number. However, the writ petition came to be finally dismissed vide judgment and order dated 21.2.2000 with the following directions.
"For the reasons given above, the writ petition fails and is accordingly dismissed. The petitioner and respondent no.3 are directed to reinstate the respondent no.4 in service and pay his entire arrears of salary within a period of two months from the date a certified copy of this order is produced before the respondent no.3." (emphasis added)
Aggrieved by the dismissal of the writ petition, petitioner therein preferred Special Appeal No. 295 of 2000, which was also dismissed summarily vide judgment and order dated 19.4.2000. The respondent Phuleshwar as a consequence of the aforesaid directions, was reinstated by the Principal of the institution on 3.7.2000, where after the claim of the respondent is stated to have been submitted before the DIOS for payment of salary and further appropriate action. The then DIOS Smt Santwana Tiwari in her letter dated 15.11.2000 addressed to the Principal of the institution made certain queries from the Principal and also demanded a certified copy of judgment of this Court. The letter dated 15.11.2000 indicates that instructions from higher authorities were also sought by the DIOS in this matter. Another letter from the office of the Finance Officer emanated on 27.11.2000 addressed to the Principal intimating her that the salary bill of the respondent Phuleshwar was being returned in the absence of any administrative decision by the DIOS. In between it appears that the matter was also brought to the notice of the officials of the State Government and a letter dated 22.5.2001 was issued by the State Government calling for appropriate action in the matter. Pursuant to the aforesaid letter the then DIOS Shri Nawal Kishore issued letter dated 28.7.2001 calling upon the Manager and Principal of the School to submit the salary bill and further that in order to receive the arrears of salary, the same be referred to Directorate for allocation of budget in order to ensure the aforesaid payment. This exercise was to be undertaken according to the appellants in view of the Circular dated 21.4.1993, issued by the Director of Education. The appellant Smt Farhana Siddiqui assumed charge of the office of DIOS on 2.8.2001, and wrote a letter dated 28.9.2001 to the Manager asking him to submit a reply to the queries made by her predecessor in office as in the absence of the desired information, inconvenience was being faced in finalising the payment to the respondent Phuleshwar. The said letter also instructed the Manager to initiate action against the Principal in view of the order of the State Government dated 22.5.2001. The salary bill etc. was sought to be served on the DIOS, which the respondent alleged was refused by the appellant when the same was tendered to her on 22.7.2002 and 1.10.2002. It is, however, alleged that on the oral direction of the appellant Smt Farhana Siddiqui, the documents were to be placed before the Accounts Officer. It has been brought on record that the DIOS Smt Farhana Siddiqui sent a letter on 11.6.2003 to the Manager, wherein it was desired that action should be taken against the Principal of institution. This was followed by another letter to the Joint Director of Education on 26.9.2003 requesting him to allocate funds for disbursement to the respondent. The Director of Education also appears to have been informed, who on 13.1.2004 sought certain information from the DIOS. This letter also enquired about the number of working days of the respondent during the period for which the arrears of salary was being claimed. The DIOS also called upon the Manager to initiate action against the Principal who was not cooperating in respect of the documents required in connection with the payment of salary to respondent Phuleshwar. On account of difficulties being faced, the DIOS made a recommendation under Section 6 of U.P. High School and Intermediate Colleges (Payment of Salaries of teachers and other employees) Act, 1971 (in short Act 1971) to the Joint Director of Education for superseding the Committee of Management on several charges, including the charge of non-payment of salary to the respondent. The Joint Director issued a notice under Section 6 of the Act 1971 to the Committee of Management on 29.6.2004. The DIOS again made a request to the Director of Education for release of the funds for payment to the respondent Phuleshwar and also indicated therein that the authorities were facing contempt proceedings. During the pendency of the contempt proceedings the funds were sanctioned by the Director of Education, Madhyamik Shiksha Airth Anubhag, Allahabad vide his letter dated 31.7.2004. By the aforesaid order the sanction was made and the Finance Controller in the Directorate of Pension was directed to allocate the said funds for being transmitted for disbursement.
A perusal of the aforesaid facts demonstrate that the sanction for payment of arrears included the period prior to the decision of the writ petition which was disposed of in favour of the respondent Phuleshwar upto October, 2001. Thus, the sanction was for the arrears as well as for the current salary. It is admitted to the parties that the demand was made from the Directorate in the year 2000 which came to be sanctioned in August, 2004.
Learned Single Judge after framing the charges and considering the defence set up by the appellants recorded the following findings.
i.After reinstatement of the employee by the Committee of Management, all the relevant current wage bills and required records were sent to the appellant DIOS for payment of salary to the respondent-employee vide letters dated 26.08.2000, 30.09.2000, 02.11.2000, 20.12.2000, 01.02.2001, 22.03.2001, 07.06.2001 and 03.07.2001.
ii.In spite of completion of all the formalities by the applicant employee as well as the Committee of Management, the current salary was not paid by the DIOS from August, 2000 to July, 2001 in spite of the fact that all the matter had been placed before the DIOS on 27.02.2002.
iii.Instead of accepting the documents etc. placed before her by the Committee of Management and the applicant on 22.07.2002, the DIOS refused to accept the same and asked the Principal to get it received by the Finance and Accounts Officer in his office, i.e. Satyanand Srivastava appellant.
iv.When the DIOS- appellant refused to accept the papers, the same were sent to her by registered post.
v.In spite of service of notice and direction for personal appearance of Mr. Srivastava appellant, he did not appear on the date fixed, i.e. 20th July, 2004 or on 27.07.2004 and his presence was secured by the Court through the Senior Superintendent of Police, Allahabad on 30th July, 2004.
vi.The DIOS appellant admitted the receipt of the subsequent bill dated 26.07.2003 when she directed Mr. Srivastava appellant vide order dated 30.07.2003 to comply the order of the Court but the appellant Srivastava returned the bills through his letter dated 04.09.2003 with certain objections.
vii.Mr. Srivastava appellant again returned the bills vide his letter dated 23.09.2003 and none of them tried to make the payment in spite of completion of all the formalities by the institution, knowingly, just to harass the applicant-employee.
viii.The DIOS appellant, though joined at Allahabad on 2nd August, 2001, but did not make any serious attempt to resolve the problem and instead of taking the responsibility on herself, she had orally directed the Management to submit the bills to Mr. Srivastava appellant.
ix.On documents being sent, Mr. Srivastava appellant kept the entire record with him for a period of four months without making any note therein and subsequently he put a note on 18.02.2003 that the entire record be placed before the DIOS- appellant.
x.Under the provisions of the Act 1971 Mr. Srivastava appellant was bound to ensure compliance of the order passed by the DIOS.
xi.The defence taken by the appellants that the amount could not be paid without sanction of the State Government was not correct. The Act 1971 and the Rules 1993 make the District Inspector of Schools- competent to make the disbursement.
xii.There had been an intentional delay on the part of both the appellants in making the payment on one pretext or the other. The institution had sent them the bills according to the old wages as well as, as per the revised pay and the version of the Committee of Management and Principal of the institution for sending the bills regularly for the current salary as well as the arrears of the salary has not been denied by either of them.
xiii.No application had ever been filed by either of the appellants for extension of time and there had been undue procrastination on their part without any justifiable reason.
xiv.The institution was an aided institution under the provisions of Section 2(b) of the Act 1971.
xv.Maintenance grant as provided under Section 2(c) had already been made for payment of salary to the employees of the institution including the applicant-employee.
xvi.It is nobody's case that the grant from which the salary of the applicant was to be paid had been withdrawn any time by the State Government or the Director of Education. There was no occasion for either of the appellants asking the Directorate or the State Government for release of the grant. Mr. Srivastava appellant withheld the payment deliberately under the pretext of one circular or the other though under the law, the DIOS is the only Competent Authority to order release of the salary whether current or the arrears and once the DIOS had passed a positive order dated 30.07.2003 asking Mr. Srivastava appellant to release the salary within a week, he did not pay any heed to it in spite of the fact that all the wage bills had been earlier verified and checked by him. Mr. Srivastava appellant was bound by the orders of the DIOS notwithstanding any instruction/circular issued by any authority or the State Government.
xvii.The defiance of the order of the Court was deliberate and willful on the part of both the appellants and apology tendered by both the appellants was an afterthought, not genuine.
Upon conviction, the present appeals have been preferred by the then DIOS Smt Farhana Siddiqui and the then Accounts & Finance Officer Shri Satyanand Srivastava.
Learned counsel for the appellants have questioned the impugned judgment and order submitting that the Court has erred by mis-construing the impact of the Circular dated 21.4.1993 and has erroneously proceeded to convict the appellants on the presumption that the maintenance grant-in-aid in respect of the salary of the respondent had already been received and was at no point of time withdrawn by the State Government. The appellants contend that the aforesaid presumption is against the weight of evidence on record and is otherwise not sustainable as the facts which could have led to such a conclusion were neither investigated nor were asked for before arriving at such a conclusion. It has been further urged that the conclusion of the learned Single Judge that there was no occasion for the appellants to have asked the Director or the State Government for release of grant is also an error in the impugned judgment inasmuch as firstly, the requisition for allocation of funds in fact had been made by the predecessor in office of the appellant, namely, Smt Santwana Tiwari and secondly the appellants were under a legal obligation to comply with the directions issued by the Director in the Circular dated 21.4.1993. To support the aforesaid submissions, learned counsel for the appellants cited several decisions and urged that the judgment of the learned Single Judge deserves to be set aside and the appellants be acquitted and discharged.
We have heard learned counsel for the parties, i.e., Shri Ashok Khare, Shri T.P. Singh, Senior Advocates, Mr. Krishna Ji Khare, Mr. S.M.A. Kazmi, and perused the record, as also the orders passed from time to time in the writ petition.
One of the objects of punishment in contempt, is the prevention of the offence. It is to set an example to the society at large, that such acts, which tend to abrogate the prestige of the Court in its endeavour to uphold the rule of law, shall be severely dealt with. Judged qualitatively, to make it punishable, the impact of the contemptuous act should be, that, which depends more on the likely than on the actual consequences of the act or the mental element by which it is accompanied. The opinion should be formed only from a sense of duty towards public interest, not so much as to deter the conduct in future. The act should be not a mere technical fault but of a substantial character and the intention should be attributable to bad faith. The conviction must rest on reasonable certainty and not preponderances. Contempt proceedings are quasi-criminal in nature, and standard of proof required to establish a charge is the same as in any other criminal case. Case is to be proved beyond reasonable doubt, and the alleged contemnor is entitled for benefit of doubt. (Vide S. Abdul Karim Vs. M.K. Prakash & Ors., AIR 1976 SC 859; Chhotu Ram Vs. Urvashi Gulati & Anr., (2001) 7 SCC 530; Daroga Singh & Ors. Vs. B.K. Pandey, (2004) 5 SCC 26). It should tend to prevent the baneful effect of the act complained of. It is in this context that the measure of punishment has to be kept in mind and it is not the quantity but the quality of the measure that matters. At times a mere admonition suffices but at times even the maximum punishment of fine is insufficient. A person, convicted by imposing fine, with means and in a position to pay the amount of fine, may throw the money at the face of the Court and get away without the least compunction for the offence committed by him.
The Apex Court in the case of Smt Pushpaben & Anr. Vs. Narandas V. Badiani & Anr., AIR 1979 SC 1536 while dealing with the provisions of Section 12 (3) has held that imposition of fine while resolving to convict a person for having committed contempt should be the rule and imprisonment should be an exception.
The facts of this case demonstrate that when the Principal challenged the order dated 29.11.1994, passed by the DIOS, this Court passed a blanket interim order on 25.1.1995, as a result whereof the order of the DIOS could not be given effect to. The respondent Phuleshwar therefore could not get any benefit of the order dated 29.11.1994 during the pendency of the writ petition. The interim order continued till the disposal of the writ petition and the petition which was dismissed in default on 8.11.1999 was again restored on 27.1.2000. The impact of the interim order therefore continued as has been held by the Apex Court in Vareed Jacob Vs. Sosamma Geevarghese & Ors., AIR 2004 SC 3992.
The question, therefore, is as to whether the conclusion drawn by the learned Single Judge to the effect, that the grant-in-aid for payment of salary to the respondent was available and not withdrawn, is correct or not? In this respect, certain provisions of Act 1971 deserve to be noted. Section 2 (c) defines maintenance grant and Section 2 (f) defines the word 'employee'. The aforesaid definition states that an employee is a person in respect of whose employment maintenance grant is paid by the State Government. The DIOS has been enjoined with the duty of disbursement of salary in respect of the maintenance grant in aid received from the State. As a natural corollary to the aforesaid definitions, what follows is that the DIOS cannot disburse salary of such an employee for whom the grant-in-aid can neither be claimed nor has been actually received. The liability in respect of salary is of the State Government as contemplated under Section 10 of the Act 1971. As held by the learned Single Judge all the authorities of the State Government are under a duty to carry out the provisions of the Act. The Director of Education is also an authority under the State Government, and under the Circular dated 21st April, 1993 it has been clarified that payments in respect of arrears which are for a period of over and above one year, should be got cleared through the process, referred to therein before making payment by the authorities concerned, including the DIOS and the Accounts Officer as well as the other authorities, referred to therein, or else the said authorities shall be held responsible and disciplinary action will be taken against them. The learned Single Judge, in paragraph 31 of the judgment, while dealing with the issue has concluded that the DIOS or the Finance and Accounts Officer have not been restrained from making any payment and that since under the provisions of the Act 1971 they are the only authorities obliged to make payment, the payment could not have been withheld.
We have carefully perused the Circular dated 21st April, 1993 and we find that the Circular issued by the Director ensures that no unauthorised payments are made. It does not prohibit the payment of salary, which is due under the aforesaid provisions. It only ensures verification by the authorities concerned before making payment of arrears in such contested matters. The Circular cannot be interpreted to mean, to be restricting the powers of the DIOS or the Accounts Officer to disburse the salary. It only comes in aid of ensuring payment of salary and does not obstruct it. The DIOS and the Accounts Officer are under a departmental obligation to ensure compliance of the procedure prescribed in the said Circular before actually passing an order of payment. The Circular only insulates the State Government from any unauthorised payments. The State Government which has the liability to pay can make inter departmental provisions to effectuate only valid payments and prevent wrongful gains. The action of the appellants, seeking sanction from their higher authority, which was ultimately granted on 31st July, 2004, therefore, cannot be said to be unauthorised or an unnecessary act.
Under the provisions of Act 1971, it is only the salary dues, which can be claimed as a matter of right. The provisions leave no room for doubt that the grant-in-aid has to be reimbursed in respect of the salary which is payable to the employee concerned and on the demand made under the bill by the institution in accordance with the status of the employee. The salary claimed has to be in respect of an existing employee who has actually worked in the institution and the maintenance grant-in-aid will be liable to be reimbursed only to that extent. Neither the institution nor the authorities have any right or power to disburse any amount in excess thereof.
In view of the provisions indicated herein above, and in view of the interim order dated 25.1.1995, in Writ Petition No. 2022 of 1995, neither the institution nor respondent Phuleshwar could have claimed any payment of salary during the pendency of the writ petition. The said respondent had been retired from service and the order in his favour, passed by the DIOS had been put in abeyance, as a result whereof, the respondent during the said period could not claim payment of salary. The salary bill could not have been submitted by the institution in respect of Shri Phuleshwar and as such no grant-in-aid, in law, could have been disbursed. In these circumstances, the presumption drawn by the learned Single Judge that there is no denial of receiving maintenance grant-in-aid or withdrawal of the same by the State Government is erroneous and against the evidence on record. As a matter of fact the interim order quoted herein above prohibited any claim of salary or disbursement of grant-in-aid during the period when the writ petition was pending. It did amount to a temporary withdrawal, in the sense, that had the payment of salary been made, the same would have been in violation of the interim order and which act would have been a nullity. The learned Single Judge, therefore, without investigating the facts in the light of the provisions, referred to herein above, and the impact of the interim order, could not have come to the conclusion as recorded in the impugned judgment, and as such, the said finding cannot be sustained.
It is true that it was nobody's case that the grant had been withdrawn, but it was definitely pleaded by the appellants that to ensure payment, compliance of the circular dated 21.04.1993 was necessary. The inference, therefore, to the effect that payment was deliberately withheld, could not have been drawn against the appellants without considering the material indicated herein above.
In order to arrive at a definite conclusion, leading to conviction, a positive finding has to be recorded on the basis of material on record beyond reasonable doubt and not on the basis of an inference, founded on presumption. The presumption has to be founded on substantial, clinching and unrebuttable proof that in the given set of facts, wilful and deliberate disobedience was established.
The question of availability of the grant-in-aid arose only after the direction was issued by this Court while dismissing the writ petition on 21.2.2000. In order to make available the arrears, including the current salary, which spread over for almost 6 years, when the contempt petition came to be filed, the appellants have taken the shelter of the Circular dated 21st April, 1993. The documents which have been filed, for pursuing the matter before the higher authorities, have already been referred to in the preceding paragraphs of this judgment. According to the appellants and as is evident from record, the first time the Directorate gave the clearance for the payment, is contained in the order dated 31st July, 2004. The Treasury cheque in pursuance thereof was drawn on 2nd August, 2004 in favour of the institution for being paid over to the respondent Shri Phuleshwar. It was debited to the Account of the respondent vide advice dated 3.8.2004. In view of the aforesaid facts, the question is as to whether the appellants can still be held to be guilty of having wilfully and deliberately disobeyed the orders of this Court dated 21.2.2000.
It is evident from the facts stated herein above that in order to make the grant-in-aid available, the DIOS did approach the Directorate in the year 2000 itself. However, thereafter the correspondence between the DIOS and the Accounts Officer was undertaken unnecessarily for reasons which need not detain us as they have already been discussed in the judgment of the learned Single Judge.
In spite of our aforesaid conclusion, we are constrained to observe that the appellants conducted themselves in a manner which resulted in the procrastination of the payments that were due to the respondent. Delay on their part could not be termed as accidental or could not be considered by them. The evidence discussed by the learned Single Judge also indicates that had bona fide efforts been made by the appellants, the respondent would have received the payment much earlier, and sufferance at their hands could have been avoided. We have considered the findings of the learned Single Judge and we find ourselves in full agreement with the same. Not only this, on this issue even the learned counsel for the appellants could not successfully dislodge the findings and conclusions drawn by the learned Single Judge in respect of the unwanted negligent and procrastinating attitude of the appellants. There does not appear to be any attempt on the part of the appellants to have finalised the matter as soon as they were put to notice of contempt by this Court. On the contrary, they attempted to defend themselves by trying to justify their actions on the basis of their attempt to shift the burden on each other. Thus, we have no hesitation in coming to the conclusion that they did not make any honest attempt to comply with the judgment of this Court which reflects absence of good faith. Their actions resulted in unnecessary harassment to the respondent and the obedience of the judgment was avoided on one pretext or the other.
Admittedly, in view of the interim order dated 25.1.1995 and the circular dated 21.4.1993, referred to herein above, the appellants could not be held exclusively responsible for delayed payment in the absence of sanction by the higher authorities. However, the sanction and allocation could have been expedited, had the appellants acted in good faith and discharged their obligations faithfully to ensure early payment to the respondent. In this view of the matter and in order to secure the ends of justice, the sentence imposed can be reasonably reduced without compromising with the majesty of the rule of law. The facts of instant case do not warrant imposition of the extreme punishment of imprisonment as certainly payment could not be made for want of timely sanction by the higher authorities.
Accordingly, while upholding the conviction of the appellants we think it appropriate to suitably modify the sentence imposed by the learned Single Judge to the extent that the appellants shall not undergo the sentence of imprisonment but shall carry out the sentence of payment of fine and compensation as per the directions contained in the judgment under appeal.
The appeals stand disposed of accordingly.
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