Allowed

J R Dhaka v. M/S Ganpati Enterprises

Rajasthan HC12 Nov 2014CMA/3375/2010

Case brief

AI extract

What is this about?

Appeal against a divorce Single Judge's order punishing the appellant with civil imprisonment for contempt. The court held no willful disobedience occurred regarding an interim milk supply arrangement as it was a bonafide necessity decided by the Board, acquitted the appellant, and set aside the punishment.

What did the court decide?

The impugned order of the Single Judge fixing civil imprisonment for 10 days was set aside.

J R Dhaka Vs M/S Ganpati Enterprises — Contempt of Court | Rajasthan HC (2014)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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O R D E R

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DB Civil Misc. Appeal No.3375/2010 J.R. Dhaka Vs.

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M/s Ganptati Enterprises

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Judgment reserved on 29.10.2014

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Date of Judgment : 12.11.2014

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Hon'ble Mr. Justice Ajay Rastogi Hon'ble Mr. Justice JK Ranka

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Mr. GK Garg, Sr. Advocate with Ms. Anita Agarwal, for appellant. None, for the respondent.

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BY THE COURT (Per Hon'ble Rastogi), J.

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Instant appeal is directed against the order of ld. Single Judge dt.7.12.2010 holding the appellant guilty of committing contempt of the order of the Court dt.26.11.2009 and was punished for 10 days civil imprisonment.

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Notices of the present appeal came to be issued on 23.12.2010 and interim protection was granted to the appellant keeping the sentence of civil imprisonment in abeyance. As per office report, the respondent is duly served, but, no one has put in appearance on their behalf.

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The facts & circumstances which are relevant for the present purpose are that the SB Civil Writ Petition14794/2009 came to be filed by the respondent-(writ petitioner) with the grievance that contract of distribution of milk & milk product which was awarded to him and valid upto 6.6.2010 came to be terminated vide order dt.21.11.2009.

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After the notices were served the respondent's counsel sought time for filing reply, at this stage, to safeguard the interest of the respondent, the ld. Single Judge vide order dt.26.11.2009, granted him interim protection which reads ad infra-

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“Shri Chandra Shekhar Sharma, ld. counsel appearing on behalf of respondent-Ajmer Zila Dugdh Utpadak Sehkari Sangh Ltd. wants a short adjournment to file reply to the writ petition. Time prayed for is allowed. Put up on 30.11.2009.

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Meanwhile, the respondent-dairy is restrained from awarding contract afresh regarding distribution of milk for which the petitioner was having contract earlier”.

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Since the ad interim stay granted by the ld. Single

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Judge was not to award contract afresh regarding distribution of milk which the writ petitioner was holding and keeping in view that the milk is a perishable

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commodity interim arrangement was made by the Sangh to supply milk to Beawar City on its own vehicle and from Beawar to various booths and Tatgarh, further arrangement was made and for this purpose services of M/s Suresh Enterprises was hired and the payment was made to the agent on commission basis.

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However, the fact indisputably which came on record that no contract of any kind was awarded by the authority afresh regarding distribution of milk. At this stage, contempt petition-140/2010 was filed by the writ petitioner and grievance raised was that if such interim arrangement is required to be made why the opportunity may not be afforded to the writ petitioner in the pending proceedings before the ld. Single Judge and order was passed on 1.4.2010 in the contempt petition to consider and examine the application of the writ petitioner and liberty was granted to the authorities to take appropriate decision and at that stage the matter was placed before the meeting of the Board of Directors of Dairy Sangh which was held on 10.4.2010 and the Board after due deliberation resolved that looking to the past conduct of writ petitioner as he was caught red handed by Vigilance Team, his contract under the terms & conditions agreed upon was terminated on 21.11.2009. The Board arrived

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to a conclusion that it may not be appropriate to consider the application of the petitioner even for temporary arrangement looking to his past conduct but at the same time was of the view that other temporary arrangement made for supply of milk through M/s. Suresh Enterprises shall discontinue and the Sangh may may supply the milk through its own resources and in compliance of the decision of the Board in its meeting dt.10.4.2010 vide agenda item no.78.4 the order was passed on 26.4.2010, copy of which was also placed on record engaging the employees of the board by adopting its own mechanism to supply milk at Beawar and Tatgarh areas and this practice was followed by the Sangh.

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However, it can be further noticed from the record that since there was application filed by the Dairy Sangh respondent before the ld. Single Judge for vacation of the interim order dt.26.11.2009 and after hearing the parties, the interim order was vacated by the ld. Single Judge vide order dt.25.11.2010 after passing a detailed order but the contempt petition was pending at the relevant point of time. However, the ld. Single Judge after hearing the parties including the present appellant as well who filed his reply and tendered unconditional apology held that engagement of services of M/s Suresh

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Enterprises for distribution of milk to the nearby places of Beawar City and Tatgarh was considered to be deliberate disobedience and the appellant has committed contempt and there is a defiance of the order passed by the Court. The ld. Single Judge arrived to a conclusion that as there being willful disobedience, the appellant has committed contempt of Court and while holding him guilty punished him for 10 days' civil imprisonment under order impugned dt.7.12.2010 which is subject matter of challenge in the instant appeal.

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Counsel for appellant submits that the interim restraint order passed by the ld. Single Judge dt.26.11.2009 was restraining the authorities from awarding contact afresh regarding distribution of milk obviously to restrain substitution of the writ petitioner who was holding his contract for supply of milk but indisputably no contract afresh after restrained by the order dt.26.11.2009 was entered and executed. At the same time, milk being a perishable commodity and could not be stored for long and it was obviously required to be distributed in the nearby areas of Beawar City and Tatgarh village as per MOU, some mechanism was required to be adopted for interim arrangement and the Sangh took a decision to supply milk to Beawar City

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in their own vehicles and since limited vehicles could be arranged, services of M/s Suresh Enterprises for distribution of milk on commission basis was hired and that was purely an interim arrangement and even when the contempt petition was filed, the writ petitioner himself offered his services to supply milk. However, the matter was placed before the Board of Directors in its meeting dt.10.4.2010 the agenda item 78.4 was extensively considered for the purpose and finally it was resolved by the Board that the interim arrangement should discontinue and the Sangh may adopt its own mechanism by hiring vehicle to supply milk in Beawar City and Tatgarh Village and that arrangement was made immediately after decision of the Board vide office order dt.6.4.2010. Thus, according to him, there was no defiance of the order of the Court dt.26.11.2009 and if at all it is considered that there should not have any distribution of milk in any other form but the mechanism was adopted by the Sangh and not by the appellant on his own and for that the appellant tendered unconditional apology but that was not accepted and without recording finding of deliberate disobedience of the order of the Court dt.26.11.2009, the ld. Single Judge held him guilty for intentionally flouting the directions of the Court and

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punished him by inflicting civil imprisonment which according to him is against the settled principles of mandate of law and Sec.2(b) of the Contempt of Courts Act, 1971 and punishment inflicted upon him in consequence thereof was not legally sustainable in the eye of law.

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Counsel submits that it was not his individual decision but the Board took decision and which was carried out by the appellant being the Managing Director of the Dairy Sangh and since milk was to supply after the contract of the writ petitioner was terminated and keeping in view the restraint order not to award contract afresh, the Sangh adopted alternative method to supply milk in Beawar City on its own vehicle and further distribution to Tatgarh Village by making interim arrangement by hiring services of M/s Suresh Enterprises on commission basis but that too was discontinued by the Board in its meeting held on 10.4.2010 and the Sangh as per decision of the Baord adopted its own mechanism for distribution of milk vide communication dt.16.4.2010.

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In these facts & circumstances, the decision of the Sangh which has been implemented by the appellant as its Managing Director was neither a disobedience nor

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nonetheless be said to be willful disobedience of the Court order.

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That the pretext on which the ld. Single Judge recorded finding for intentionally flouting order of the Court was totally perverse and apart from it, the appellant has not only tendered valid justification and also tendered unconditional apology but that was also not accepted by the ld. Single Judge on the pretext that it was offered after arguing the matter to justify which according to the appellant is against the settled principles of law.

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Since no one appeared on behalf of respondent despite service, we have heard the appellant and with their assistance perused the material available on record.

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The relevant provisions of Contempt of Court, Sec.2 (b) and 2(c) defines civil and criminal contempt, read ad infra-

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2(b) “civil contempt” means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court.

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2(C) “ criminal contempt” means the publication (whether by words, spoken

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or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever”.

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Whenever there is willful disobedience to any judgment, order, or any other process or willful breach of an undertaking furnished to a court that is considered to be civil contempt but we cannot overlook or ignore the statutory ingredient of contempt of a civil nature given out u/S. 2(b) of the Contempt of Courts Act 1971 that the disobedience to the order alleging contempt has to satisfy the test that it is a willful disobedience to the order. Keeping this important factor in mind, it is relevant to note that a proceeding for civil contempt would not lie if the order alleged to have been disobeyed and that provides scope for reasonable or rational interpretation of an order or circumstance which is the factual position in the instant matter.

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Thus, in order to punish the contemnor, it has to be established that disobedience of the order is willful as contemplated u/S.2(b) of the Act 1971 and what section 2(b) contemplates keeping the long precedence as having been considered by the Apex Court in the case Ram Kishan Vs. Tarun Bajaj reported in 2014 SCC On

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Line SC 42 decided on 17.1.2014 reads d infra-

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“Thus, in order to punish a contemnor, it has to be established that disobedience of the order is 'willful'. The word 'willful' introduces a mental element and hence, requires looking into the mind of person/contemnor by gauging his actions, which is an indication of one's state of mind. 'Wilful' means knowingly intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, bonafide or unintentional acts or genuine inability. Wilful acts does not encompass involuntarily or negligent actions. The act has to be done with a "bad purpose or without justifiable excuse or stubbornly, obstinately or perversely". Wilful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore, there has to be a calculated action with evil motive on his part. Even if there is a disobedience of an order, but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to

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comply with the order, the contemnor cannot be punished. "Committal or sequestration will not be ordered unless contempt involves a degree of default or misconduct"

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In the instant case, restraint order was passed by the ld. Single Judge dt.26.11.2009 from awarding contract afresh for distribution of milk substituting the contract that once entrusted to the writ petitioner and in the reply filed by the appellant a clear averment was made that contract was initially awarded to Ganpati Enterprises dt.6.4.2008 was extended upto 6.6.2009 but because of vigilance team as alleged caught the writ petitioner red handed on 19.11.2009 causing loss to Ajmer Dairy, his contract was terminated on 21.11.2009 and restraint order was passed on 26.11.2009 and the present appellant joined as MD on 6.12.2009 and since milk was perishable product some interim arrangement was required to be made for distribution in the vicinity of Beawar City and village Tatgarh and the Board took decision that looking to the available resources the milk may be transported to Beawar City and for further distribution to meet out the exigency, services of M/s Suresh Enterprises was hired on commission basis at Rs.10,200/per day but when it came up for

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consideration before the Board in its meeting held on 10.4.2010, the application of the writ petitioner was also considered in agenda item no.78.4 and the interim arrangement made by engaging M/s Suresh Enterprises was also discontinued and accordingly Sangh took decision for distribution of milk in its meeting dt.6.4.2010 and the application for vacation of stay at the instance of Dairy Sangh remain pending consideration and the ad interim stay order dt.26.11.2009 came to be vacated on 25.11.2010.

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Indisputably, from the material which has come on record, no contract was awarded to the individual incumbent and restraint order dt.26.11.2009 was only for a limited purpose but as regard distribution of milk is concerned, if interim arrangement was made by hiring M/s Suresh Enterprises to meet out the nature of exigency which arose keeping in view that the milk being a perishable product could not have been stored and within limited resources available if adhoc arrangement for distribution of milk through M/s Suresh Enterprises was adopted that could certainly in our view was a reasonable & bonafide justification offered and could not be said to be a disobedience if any as considered by the ld. Single Judge and that apart disobedience of the order

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of the Court in itself is not sufficient unless a finding of willful disobedience is being recorded and as noticed by the Supreme Court in the case of Ram Kishan supra that the deliberate conduct of a person means that he knows what he is doing and intends to do the same and there has to be a calculated action with evil motive on his part.

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But as noticed by this Court from the material on record no finding of willful disobedience has been recorded by the ld. Single Judge and we are fully satisfied with the explanation furnished by the appellant in reply to the contempt petition that adhoc arrangement was made for supply of milk for interregnum period under the decision of Board and the interim arrangement made was also abandoned after the decision was taken by the Board in its meeting held on 10.4.2010 which in no manner could be said to be a willful disobedience of the order of the Court which was the condition precedent for the ld. Single Judge to consider while recording a finding of committing contempt of order dt.26.11.2009 of the Court and we further find that this fact remain unnoticed that the application pending for vacation of ad interim order dt.26.11.2009 was pending before the ld. Single Judge and it was expected to consider the application for vacation of ad interim stay as well at the

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relevant point of time before going ahead with the contempt proceedings and as come on record the application filed by the Dairy Sangh against the ad interim order dt.26.11.2009 for its vacation also came to be accepted vide order dt.25.11.2010 and ad interim order was vacated by a detailed order. All these facts which came on record deserves attention while arriving to a conclusion as to whether willful disobedience of any kind at all has been committed of the order of the Court dt.26.11.2009.

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From the order impugned of the ld. Single Judge, we find that there is no finding of willful disobedience of the order committed by the appellant and the fact that milk being perishable product certainly it was required to be distributed within the prescribed time and interim arrangement made in no manner could be said to be a disobedience of order being committed by the appellant and no finding is recorded by the ld. Single Judge that the appellant had intentionally flouted ad interim direction of the Court and in absence of finding of willful disobedience being recorded holding him guilty of committing contempt of the order of the Court and to punish u/S.12 of the Act 1971 dt.7.12.2010 in our considered view is legally not sustainable in the eye of

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law and that apart he has also tendered unconditional apology after tendering his explanation before the ld. Single Judge and even if his bonafide explanation was not convincing, Sec.12 of the Contempt of Court Act, 1971 makes it clear that the apology should not be rejected merely on the ground that it is qualified or conditional if it is made bonafidely.

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In the present case, there is nothing on record to suggest that unqualified and unconditional apology tendered by the appellant was an afterthought and apart from it he tendered unconditional apology, even in the instant proceedings based on his personal affidavit we have come to the conclusion that there was no willful disobedience of the order of the Court dt.26.11.2009 and stage of tendering unconditional apology may not arise but keeping in view the facts & circumstances of the instant case, unqualified & unconditional apology in the pending proceedings before the ld. Single Judge along with explanation regarding the manner in which interim order of the Court dt.26.11.2009 was carried out by the appellant under the orders of the Board and we do not find any justification why such unqualified & unconditional apology tendered by the appellant was not accepted by the ld. Single Judge.

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Consequently, the order impugned dt.7.12.2010 passed by the ld. Single Judge is not legally sustainable in law.

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Accordingly, the appeal is allowed and the order of the ld. Single Judge impugned dt.7.12.2010 is set aside. No cost.

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[JK Ranka], J. [Ajay Rastogi], J.

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Dsr/

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"All corrections made in the judgment/order have been incorporated in the judgment/order being emailed"

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Datar Singh P.S.

J R Dhaka v. M/S Ganpati Enterprises

Case brief

What is this about?

What did the court decide?

J R Dhaka v. M/S Ganpati Enterprises

Case brief

What is this about?

What did the court decide?

What the court decided

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