Kalyan Jyhoti Sengupta, J.@mdashThis is an application for committing contempt of Court for wilful and deliberate violation of the order passed by this Court dated. 12th September 1997 by not appointing all the candidates from the merit list. In this matter the Rule was issued on 28th September 2007 against the Respondent Nos. 2, 3 and 4 for formal drawing up of the aforesaid contempt proceedings. After affidavits having been filed the matter was finally heard. The facts and circumstances leading to initiating this contempt application is stated hereunder:
2. On or about 31st March 1995 after written test followed by interview having been taken the Chief Engineers PWD (Roads) and Chairman of the Selection Committee prepared a merit list for appointment of 4th Grade Clerks whereby and where under 254 candidates were chosen to be eligible. Out of 254 candidates, 179 candidates were reserved for general category and 28 candidates were selected from the Department out of the aforesaid general category. The rest of the candidates were enlisted in the reserved category of various classifications. The respondents without following the seniority of the merit list started appointing candidates and by reason thereof the petitioner Nos. 1 and 2 along with other candidates were compelled to file application in the State Administrative Tribunal (hereinafter referred to as the learned Tribunal) asking for appointment of the petitioners on the basis of the merit list wherein their names figure. The said application being OA No. 183 of 1996 was disposed of by the learned Tribunal by order dated 29th April 1997 directing the Chief Engineers (Roads) to appoint the candidates on the basis of the merit list without resorting to pick and choose policy. The said order of the learned Tribunal was challenged in this Court by the State by filing appropriate application and the same was dismissed by order dated 12th September 1997. The Division Bench of this Hon''ble Court while dismissing the said application upheld decision of the learned Tribunal and further directed the Government to appoint the candidates on the basis of the merit list within two months. On 30th January 2001 it was learnt without complying with the said orders the Hon''ble Minister in Charge and other respondents cancelled the merit list after appointing the candidates enlisted in the merit list from and amongst the departmental candidates and the candidates from reserved category. The petitioners having learnt aforesaid illegality filed on or about 15th February 2002 another application in the said Tribunal challenging the said order cancelling the panel and asked for direction upon the respondents to offer appointment. This application was dismissed by the learned Tribunal on 5th April 2006 holding that there was no fresh cause of action to move the said application hence fresh application does not lie. It was further held that since the panel was cancelled and the respondents have filled up the vacancies no relief could be granted. The petitioners herein challenged the said order of the Tribunal dated 5th April 2006 by filing an application in this Court and the said application being WPST 392 of 2006 was disposed of on 11th April 2007 holding inter alia that order of the learned Tribunal was just and proper and it was observed by the Division Bench that contempt proceeding was appropriate remedy as there has been violation of the earlier order of this Court.
3. On 17th of April 2007 the learned Advocate for the petitioner wrote a letter calling upon the respondents to comply with the said order that has been violated.
4. In the affidavit it has been alleged that the present contempt application is barred by limitation as such it is not maintainable. Factually it is admitted position that the petitioners have not been appointed in terms of the order passed by this Court on 12th September 1997.
5. While meeting the aforesaid question of limitation Mr. Tapan Kumar Mukherjee learned Advocate appearing for the petitioners submits that the question of limitation in a contempt proceeding in the High Court does not and cannot arise as violation of the order of the Court is continuous one. According to him so long appointment is not given to the petitioners violation continues and naturally cause of action in the contempt application arise afresh in each and every day. He submits that the limitation of one year as provided in the Contempt of Courts Act 1971 (hereinafter referred to as the said Act) has no application as the jurisdiction of High Court to initiate contempt proceedings emanates from Article 215 of the Constitution of India. This Court, he urges, will not only deal with alleged contemnors but will also pass the necessary order of enforcement. For his submission he has drawn support of Division Bench decision of this Court reported in
6. On merit he says that the violation of the order of the Court will appear from the facts that the respondents have not only refused appointments to the petitioners but the panel wherein the petitioners name figured was cancelled by the Respondent No. 1.
7. The learned Advocate General while resisting this contempt proceedings submits that the action is hopelessly barred by limitation as the order was passed on 12th September 1997 whereas the present contempt application has been filed on 2nd May 2007 and the Rule was issued thereafter viz. on 28th September 2007. Thus it is clear that after long 10 years this contempt proceeding has been initiated. He submits that the period commencing from 15th February 2002 ending on 11th April 2007 during which the proceeding was pending is of no help to validate the contempt proceeding or to arrest running off time.
8. He urges it is now the law settled by the Supreme Court that the provision of the said Act prescribing the period of limitation is applicable in the contempt proceedings before High Court. In support of his contention on the question of limitation he has drawn our attention to the following decisions of the Apex Court :
9. Learned Advocate General further submits on merit that panel was cancelled as it cannot be kept alive for indefinite period. If the order is looked into then it will appear the direction was for giving appointment to the candidates and there was no prohibitory order against cancellation of the panel after expiry of reasonable time. It is further submitted that appointment was given from the merit list in accordance with law read with the said decision. For long four years there has been no grievance nor any action was taken by the petitioners for implementation of the aforesaid order. Hence there cannot be any wilful and deliberate violation.
10. Having regard to the aforesaid contention it is incumbent upon this Court to decide the issue first as to whether cause of action for initiating the contempt application is continuing one or not. From the statement of fact recorded by us as above it appears that the order dated 12th September 1997 of the Division Bench of this Court not only affirmed previous order of the learned Tribunal in OA No. 183 of 1996, but fresh direction was also given upon the respondents, that in terms of the order of the learned Tribunal offer of appointment should be made to the candidates on the basis of the merit list within a period of two months from the date of communication of this order. Thus it is clear the appointment was to be given to the candidates from the merit list within period of two months from 12th September 1997 and violation started on expiry of 12th November 1997. From 12th November 1997 till 15th February 2002 for more than 4 years no action was taken so it cannot be said to be continuing cause of action. When it was found in November 1997 no action was taken to offer appointment to the petitioners the contempt application should have been filed, in stead a fresh application was filed on 15th February 2002 for implementation of the said order and for consequential relief. Of course from 15th February 2002 till 11th April 2007 action was taken by the petitioners in the Tribunal and in this Court, and the period during which this proceeding was pending in Tribunal and High Court can legitimately be excluded from the period of 10 years. We do not find any explanation as to why the petitioners and each of them, were remaining silent for four years prior to 15th February 2002. Only explanation was given that the petitioners were waiting for their turn to come for offer of their appointment. According to us this explanation is not satisfactory.
11. It is contended with the support of authority of the decision of the learned Single Judge reported in 1996 (2) CLJ 349 that question of limitation in contempt proceedings initiated by the High Court does not arise. Similar view is also taken by Division Bench of this Court in the case of Shri Sunil Kumar Ghosh v. State of West Bengal and Ors. reported in
12. Thus on careful reading of decisions as above it emerge that provisions of limitation as contained in the said Act 1971 is applicable, but in a fit case provision of Section 5 as well as Section 17 of the Limitation Act, 1963 is applicable by virtue of Section 29(2) read with Section 3 thereof for the simple reason that in the said Act 1971 there has been no expressed provision to exclude the applicability of Section 5 of the Limitation Act, 1963.
13. We would have applied the provision of Section 5 of the Limitation Act but we do not find any cogent ground or explanation to condone the delay in this case.
14. The learned Single Judge of this Court in case reported in 1996 (2) CLJ 349 Begunkodar High School v. Samarendra Bandopadhaya and Ors. held that the limitation to initiate contempt proceeding of one year as provided in the Contempt of Court Act is not applicable to proceedings for violation of order passed by this Court, cannot be said to be good law in view of consistent decisions of the Supreme Court as quoted above. We, therefore, hold that the contempt proceedings cannot be maintained in view of the limitation as aforesaid for purpose of holding the respondents guilty for committing Contempt of Court as such the alleged contemnors cannot be dealt with as the Rule was issued for this purpose as we have noted there is no sufficient cause to condone delay.
15. But on this ground should this proceedings be dropped? Answer would be in the negative as we find from the statement and averment of the petition and the affidavit in opposition that the order of the Tribunal asking the respondents to give appointment amongst other to the petitioners and as affirmed by an order of this Court has not been carried out and the same is yet to be implemented even today. We are in this regard fortified by the law laid down by the Apex Court in
16. Division Bench of this Court in two cases reported in
17. The same Bench in case of Saibal Kumar as above, a year later almost reiterated the same view with the expression in paragraph 4 as follows:
It is well settled that the Contempt of Court may be of two kinds namely, Civil Contempt and Criminal Contempt, when an order made for the benefit of a party is disregarded or violated and the Court enforces the order by punishing the delinquent for contempt it is said that such proceedings is in a form of execution and the Contempt concerned is of a civil nature.
18. This view is again accepted and reiterated by a Bench decision of this Court in case of Sri Sunil Kumar Ghosh (Supra).
19. In the case of
In the aforesaid view of the matter, we are of the opinion that though perhaps the respondents could not be found guilty of violating any undertaking as there was none, in the facts and circumstances of the case, this Court should ensure compliance with its order dated 24 August, 1987
20. In that case before Supreme Court a Contempt application was filed against some persons who by obtaining order of injunction wanted to frustrate eviction decree which was affirmed by Apex Court, so that execution thereof could not be levied as the execution was stayed by the Apex Court in the hope that usual undertaking would be filed to vacate within certain time, but such undertaking was not filed by the original judgment debtors.
21. In the case of
It is settled law that breach of an in junction or breach of an undertaking given to a Court by a person in a civil proceeding on the faith of which the Court sanctions a particular course of action is misconduct amounting to contempt. The remedy in such circum stances may in the form of a direction to the contemnor to purge the contempt or a sentence of imprisonment or fine or all of them.
22. In this case, the Hon''ble Supreme Court instead of punishing asked the contemnor to purge the contempt by directing the first respondent contemnor to deliver vacant possession. Yet a decision of the Supreme Court in the case of
23. Thus upon objective study of all the decisions as above it is our considered view that contempt proceeding (Civil) is not exclusively meant for awarding punishment of contemnors, it is at times really directed basically towards enforcement of the order when it is found order has not been carried out, and awarding punishment becomes secondary object in that situation. But when order is complied with, but not according to the direction of the Court, awarding punishment may become primary object. At times proceeding in Civil Contempt assumes the character of execution proceedings, when order is not carried out, yet it cannot be substitute of formal execution proceedings but purpose of execution is achieved.
24. Our above views is clearly reflected in the Rule 10 of Contempt of Court Rules 1975 framed under the said Act by this Court. The said rule is quoted hereunder:
The Court may issue rule Nisi or summarily reject the petition or make such order thereupon as thought fit.
25. The emphasised portion of the rule clearly and undoubtedly affords wide discretion to deal with Contempt petition as the Court will think fit.
26. In the present case, the petitioners and each of them on earlier occasion approached the learned Tribunal in 2002, thereafter this Court, consequent upon non-compliance of the order, basically for enforcing of the order. The said proceedings came to an end in 2007 with the Court''s observation contempt proceedings is appropriate remedy without disposing of the same on merit. Therefore, this long five years have to be excluded from delay of ten years for enforcement of the order. Had it been Civil execution period of limitation would have been twelve years. Thus there is no reason to think different period of time in this case from ordinary period of limitation for execution.
27. We now dispose of this contempt application directing the State to implement the order dated 12th September, 1997 giving appointment to the petitioners irrespective of cancellation of the panel as against the present vacancies if available, if not then at the first available opportunity petitioners and each of them must be appointed. Accordingly, the respondents and each of them is directed to place before the Court the vacancy position in the said post in question as on today and to file a report to this Court. The said report shall be submitted within eight weeks from the date of communication of this order.
