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2003 Supreme(Cal) 477
High Court Of Calcutta
Asok Kumar Ganguly, Sailendra Prasad Talukdar
RANJIT KUMAR HAIDER - Appellant
Versus
STATE OF WEST BENGAL - Respondent
W. P. S. T. 612 Of 2003
Decided On : 09/12/2003
MAL BARAN CHATTERJEE, APURBALAL BASU, Kartick Bhattacharyya, L.K.Gupta, PRAFULLA KUMAR GHOSH, Sumit Ghosh
The Court can, without a finding of contempt in view of the difficulty in proving it, issue appropriate orders of injunction in order to implement its previous order and to prevent its flouting by any manoeuvre or subterfuge or by any other subtle modes of defiance which may not be wilful and deliberate defiance.
Headnote:
CONTEMPT OF COURT - [KEYWORD] - PUBLIC WORKS (ROAD) DEPARTMENT - [ACT SECTION LIST] - Section 2(b), 57 of the Contempt of Courts Act, 1971 - [SUMMARY] - The High Court held that the alleged contemnors were trying to overreach the Court anticipating the order of injunction and issued an injunction order in a mandatory form to nullify the steps hurriedly taken by the alleged contemnors after the notice was received.
Fact of the Case:
The petitioner, holding the post of Superintending Engineer (Mechanical) in PW (Roads), came to know that the Finance Department agreed to a proposal of Special Secretary, Public Works (Road) Department for creating a supernumerary post of Superintending Engineer (Mechanical) for the period from 4.8.1985 to 20.10.1996 to accommodate the petitioner. The petitioner moved an original application under section 19 of the Administrative Tribunals Act, 1985 before the State Administrative Tribunal challenging the order dated 7th February, 2003 by which one Sri C. S. Dutta, then holding the rank of Superintending Engineer (Mechanical) in the PWD (Roads), was promoted to the post of Additional Chief Mechanical Engineer. The Tribunal could not complete the hearing of the matter by 31st July, 2003 and as such, the petitioner made an application for interim order before the Tribunal. The petitioner's case is that even though it was pointed out before the Tribunal that the post of Chief Engineer (Mechanical) was not existing and the vacant post of Additional Chief Engineer (Mechanical) is going to be filled up and the Hon'ble High Court granted liberty to the petitioner to apply for suitable interim order, the Tribunal, it has been asserted by the petitioner, instead of considering different prayers for the interim order in the petition filed by the petitioner, merely extended the interim order granted by this Court. Against such interim order of the Tribunal dated 1st August, 2003, a writ petition (AST 612 of 2003) was filed and this Hon'ble Court was moved on 4th August, 2003 and the learned counsel for the petitioner prayed for ex parte interim order. The Court, however, declined to consider the said prayer for injunction petition ex parte and directed that notice be served on the respondents. Pursuant to such order, a notice was served on 4.8.03 on the respondents and the said notice was filed before this Court by the learned counsel for the petitioner when the writ petition was taken up on 5th August, 2003. From a perusal of the said notice, it appears that such notice was served on by the Principal Secretary, Public Works (Roads) Department, Government of West Bengal, on the Special Secretary, Public Works Department (Roads), Writers' Buildings and also by the Engineer-in-Chief and Ex-officio Secretary, Public Works (Road) Department. Thereafter, the matter was taken up by this Court on 5th August, 2003 and the order of status quo, as extracted above, was passed. This court asked the learned counsel, representing the alleged contemnors whether or not any promotion order as apprehended by the petitioner, is going to be passed. This Court was informed by the learned counsel that although the process might have been initiated, but actually, the promotion order has not yet been issued. Thereafter, the Court granted the order of status quo on 05.08.2003. This contempt petition was filed before this Court on 06.08.2003 and the matter was taken up on 07.08.2003. On that date, it was mentioned before this Court by the learned counsel that the alleged contemnor No. 2, viz. Sri Pijush Ranjan Pal, was present in the Court when the order was passed. In view of such submission, the Court asked the learned counsel appearing for Mr. Pal to ascertain whether his client was present in the Court on 06.08.2003, when the order was passed. The learned counsel appearing for Mr. Pal wanted to take instruction and this Court directed Mr. Pal to present in Court at 2.00 p.m. on that date i.e. 7.8.2003. Pursuant thereto, Mr. Pal came to the court at 2.00 P.M. on that date and informed the Court that he was not physically present before the Court, when the Court passed the order.
Finding of the Court:
The court found that the alleged contemnors were trying to overreach the Court anticipating the order of injunction and issued an injunction order in a mandatory form to nullify the steps hurriedly taken by the alleged contemnors after the notice was received.
Issues: Whether the alleged contemnors were trying to overreach the Court anticipating the order of injunction.
Ratio Decidendi: 1. The power of the Court to issue injunction in Contempt proceeding has been recognised by Oswald on Contempt (Third Edition)at page 16 or the treatise, the learned author said:"the Court, however, has power to restrain by injunction threatened contempts. It is competent for the Court where a contempt is threatened or has been committed, and on an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration whether the offender is a party to the proceedings or not." 2. In a fit and proper case, like the present one, the Court can, without a finding of contempt in view of the difficulty in proving it, issue appropriate orders of injunction in order to implement its previous order and to prevent its flouting by any manoeuvre or subterfuge or by any other subtle modes of defiance which may not be wilful and deliberate defiance.
Final Decision: The High Court issued an injunction order in a mandatory form to nullify the steps hurriedly taken by the alleged contemnors after the notice was received. The court stayed the operation of the order of promotion of Sri Pijush Ranjan Pal, the opposite party No. 2, to the post of Additional Chief Engineer (Mechanical) P. W. (Road) till the pending proceeding before the State Administrative tribunal is decided.
( 1 ) THIS contempt application has been filed by the petitioner alleging wilful and deliberate violation of the order dated 5th august, 2003, passed by this Court by W. P. S. T. No. 612 of 2003. On 5th august, 2003 this Court, upon hearing the parties, was pleased to pass the following order:"heard counsel for the parties. The order of the Tribunal against which this application has been filed could not be annexed, as according to the learned counsel for the petitioner, he is not able to obtain the copy of the same. We, therefore, adjourn the matter till Monday the 11th August, 2003. We hope by that time the order impugned in this writ application will be made available to the petitioner. Let the matter appear on next Monday the 11th August. 2003. Parties are directed to maintain status-quo as on date till next tuesday the 12th August, 2003. In the facts and circumstances of the case let a Xerox plain copy of the Order duly countersigned by the Assistant Registrar (Court)be made available to the learned counsel for the parties, on usual undertaking. "
( 2 ) THE prayer for injunction was made in connection with an appointment which was about to be made to the post of Additional engineer, Mechanical in PW (Roads) and over which litigations were pending.
( 3 ) THE basic facts of the case are that the writ petitioner was holding the post of Superintending Engineer (Mechanical) in PW (Roads ). His case is that he is entitled to be promoted to the said post with effect from 4. 8. 1985 on a vacancy which arose in the said post. Various legal proceedings have been initiated by the petitioner in respect of that claim.
( 4 ) THE petitioner came to know that the Finance Department, by their order dated 21st January, 2000 agreed to a proposal of Special secretary, Public Works (Road) Department for creating a supernumerary post of Superintending Engineer (Mechanical) for the period from 4. 8. 1985 to 20. 10. 1996 to accommodate the petitioner.
( 5 ) THE further case of the petitioner is that the Finance Department ordered that the pay of the petitioner would be fixed initially in the post of Superintending Engineer (Mechanical) with effect from 4. 8. 1985. The petitioner has also referred to the opinion of the Finance Department and the response of the Administrative Department. But for the purpose of deciding the issue in this contempt proceeding, those facts are not strictly necessary.
( 6 ) HOWEVER, the petitioner moved an original application under section 19 of the Administrative Tribunals Act, 1985 before the State administrative Tribunal challenging the order dated 7th February, 2003 by which one Sri C. S. Dutta, then holding the rank of Superintending engineer (Mechanical) in the PWD (Roads), was promoted to the post of additional Chief Mechanical Engineer.
( 7 ) WHEN the O. A. was filed by the petitioner challenging the said order, the said O. A. being O. A. No. 200 of 2003 was admitted by the Tribunal but the prayer of interim order, made by the petitioner, was refused.
( 8 ) AGAINST such refusal to pass an interim order, the petitioner moved a writ petition before the High Court which was numbered as W. P. S. T. 185 of 2003 and this Hon'ble Court was pleased to grant an interim order on 12th March, 2003 restraining the respondents from filling up the post of Chief Engineer (Mechanical) in PWD (Roads ). But such order was issued for a limited period. The said proceeding came up before this court, and by an order dated 11th June, 2003, the said writ petition was disposed of by this Court and the interim order, granted earlier, was allowed to continue till 31st July, 2003.
( 9 ) SINCE the main matter was pending before the Tribunal, this court, while disposing of the writ petition, observed that the Tribunal should take up the matter for final hearing on 2nd July, 2003 and the hearing should be concluded and the final order be passed by 31st July, 2003. It was also observed in the said order that if the
