M/s Mile Stone Soft. Tech. Pvt. Ltd. Vs Nidhi Chhibber

Chhatisgarh High Court (Single Judge)

CONC->CONTEMPT CASE, 02 of 2015, Judgment Date: May 08, 2015

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HIGH COURT OF CHHATTISGARH AT BILASPUR
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SINGLE BENCH :HON'BLE SHRI JUSTICE SANJAY K. AGRAWAL
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Contempt Case (C) No. 02 of 2015
APPLICANT : M/s Mile Stone Soft. Tech. Pvt. Ltd.
VERSUS
NON-APPLICANT
Proposed contemnor
: Nidhi Chhibber
CONTEMPT PETITION UNDER ARTICLE 215 OF THE
CONSTITUTION OF INDIA READ WITH SECTION 12 OF THE
CONTEMPT OF COURTS ACT, 1971
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Appearances:
Shri B. P. Sharma and Shri M. L. Saket, Advocate for the
contempt petitioner.
Shri Rajeev Shrivastava, Advocate for respondent-contemnor.
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O R D E R [C.A.V.]
(Passed on 08 .05.2015)
1. Invoking jurisdiction of this Court under Article 215 of the
Constitution of India read with Section 12 of Contempt of
Courts Act, 1971 (for short, the Act, 1971), this contempt
petition has been filed by the contempt petitioner herein
alleging wilful disobedience of order dated 23.09.2014 passed
by Division Bench of this Court in WPC No. 1858 of 2014 (M/s
Mile Stone Soft. Tech. Pvt. Ltd. v. State of Chhattisgarh &
Others).
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2. The imperative facts, necessary to find-out whether
respondent/contemnor prima facie dis-obeyed and disregarded
the order of this Court and as to whether charges is to be
framed against the respondent/contemnor are as under:-
2.1 The contempt petitioner herein instituted a writ petition
(C) 1858 of 2014 impleading the State of Chhattisgarh,
Election Commission of India & the Chief Electoral
Officer, Chhattisgarh, questioning the order dated
10.09.2014 passed by the Chief Electoral Officer,
Election Commission of Chhattisgarh. In the said writ
petition Division Bench of this court by order dated
23.09.2014 directed the respondent No.2&3 therein
namely Election Commission of India and the Chief
Electoral Officer, Election Commission of Chhattisgarh to
allow the petitioner to participate in tender proceeding
without depositing the earnest money. The order passed
by Division Bench of this court was communicated to the
respondent contemnor on 27.09.2014, but the
respondent/contemnor did not comply the order
complained of and on 16.10.2014 directed all District
Magistrate/DRO to execute agreements with the
successful tenderer and wilfully disobeyed the order of
this court, and thus, charges for contempt for
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disregarding the order of this Court dated 23.09.2014 be
framed against the respondent/contemnor for punishing
under Section 12 of the Act, 1971.
3. Rule was issued to the respondent/contemnor requiring her to
show cause as to why contempt proceedings be not initiated
against her and she should not be punished for wilful
disobedience of court's order dated 23.09.2014 passed in
WPC No. 1858 of 2014.
4. Reply-affidavit in support of defence has been filed by the
respondent-contemnor refuting the charges stating inter alia
that tender proceedings were already finalized on 25.09.2014
and the petitioner has not participated in the tender
proceedings and it is only National Small Industries
Corporation Ltd. (for short, NSIC) who had taken part in the
proceedings and there is no tender in name of contempt
petitioner, and as such, the tender proceedings having been
finalized much prior to the communication of the order of this
Court to the respondent/contemnor on 27.09.2014. It was
further stated that the execution of the agreement with the
successful tenderer by order dated 16.10.2014 was only a
preparation for issuance of work-order in pursuance of tender
proceeding which had attained finality on
16.09.2014/25.09.2014 and the work of preparing photo
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identity card was utmost urgency and of national importance
and work order was issued after passing of final order in writ
petition (C) No.1858 of 2014 dismissing the said petition on
21.11.2014, and in alternative her unconditional apology be
accepted for non compliance of order, if any.
5. The contempt petitioner has filed his rejoinder pursuant to
reply-affidavit filed by the respondent contemnor alleging that
non compliance of court's order is deliberate and respondent
contemnor has deliberately flouted the order of this court, and
therefore, it cannot be bonafide as the same calls for serious
view to ensure proper administration of justice.
6. Shri B. P. Sharma, learned counsel appearing for the contempt
petitioner would submit that order passed by Division Bench of
this court on 23.09.2014 directing the respondent-contemnor to
permit the petitioner to participate in the tender proceeding was
duly communicated on 27.09.2014 yet, patently flouting the
order of this court, the respondent-contemnor has passed the
order on 16.10.2014 directing the District Returning Officer to
get the agreement executed with the successful tenderer and
agreements were executed. Not only this, the respondentcontemnor
did not make any prayer for modification/vacation or
alteration of order dated 23.09.2014 passed by this court
though opportunity was reserved in their favour in the order
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dated 23.09.2014 for recalling/modification of said order.
Arguing further, he would submit that notice of writ petition
was served to the respondent-contemnor on 20.10.2014 yet
she did not choose either to inform the court about the tender
proceeding by seeking vacation/modification and conveniently
filed the counter affidavit in writ petition on 31.10.2014 and
comfortably omitted to mention about the compliance or
otherwise of the order dated 23.09.2014 and as such the
conduct of the respondent/contemnor is contemptuous and
accordingly charges be framed for disobedience of order of this
court dated 23.09.2014 passed in WPC No.1858 of 2014
against the respondent/contemnor.
7. Shri Rajeev Shrivastava, learned counsel appearing for the
respondent-contemnor would submit that though the order was
communicated to the respondent on 27.09.2014 but fact
remains that proceedings were already finalized on 25.09.2014
and respecting the order of this court communicated to the
respondent, final work order was issued only after passing of
final order i.e. after dismissal of writ petition, and as such, there
is no wilful disobedience of the order passed by the court as
proceedings were already completed much prior to
communication of order of this Court to contemnor-respondent
27.09.2014. He would further submit that ultimately writ petition
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has been dismissed by this court, and therefore, no case for
wilful disobedience is made out and the contempt proceedings
be dropped against the respondent-contemnor as no case for
framing charge is made-out against her.
8. I have heard the counsel appearing for the parties and
considered the rival submissions made therein and perused
the records available on record with utmost circumspection.
9. After hearing learned counsel for the parties and after perusal
of records, the following facts to be noticed profitably to find out
as to whether the respondent-contemnor has prima facie
violated the order of this court passed on 23.09.2014.
· the respondent Chief Electoral Officer, State of
Chhattisgarh passed the order on 10.09.2014 holding
that NSIC has not submitted the earnest money along
with his tender, therefore, his tender has been rejected
on 06.09.2014.
· the petitioner herein filed writ petition on 15.09.2014
before this court, questioning the order dated 10.09.2014
and the matter came up for hearing before the court on
18.09.2014, in which, the Division Bench passed the
following order-
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· In compliance of said order, the petitioner informed the
Chief Electoral Officer, State of Chhattisgarh about
hearing of the matter and thereafter the matter came up
for hearing on 23.09.2014. On said date, after hearing
the petitioner and learned counsel for the State, the
following order was passed by this Court-
“In the light of competency certificate, Rule 4.7
of the said Rules, opinion of the Director,
Industries, Chhattisgarh, obtained by
respondents No.2&3 vide its letter dated
30.07.2014, letter dated 22.07.2014 and letter
dated 10.09.2014 issued by the respondents
No.2&3, as in interim measure, the
respondents No.2&3 are directed to allow the
petitioner to participate in the tender
proceeding without depositing the earnest
money as directed by respondents No.2&3
vide its letter dated 10.09.2014.
Notice be issued to the respondents No.2&3
by ordinary and registered modes, returnable
within four weeks. Stesp be taken within a
week. Dasti service is also permitted in
addition to the usual mode of service.
Respondents No.2&3 may file their reply and
the petitioner may file rejoinder, if any. In case
of any urgency, respondents No.2&3 may file
application for urgent hearing for
recalling/modification of this order.
In view of this order, IA No.2 for urgent hearing
stands disposed of.
List this petition on 27.10.2014.”
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· The aforesaid order was communicated to the
respondent-contemnor on 27.09.2014. The
respondent/contemnor thereafter passed an order on
16.10.2014 directing the respondent-District Returning
Officer to get the agreement executed with successful
tenderer for the said work.
· Notice of the writ petition was served to the
respondent/contemnor herein on 20.10.2014 and counter
affidavit was filed on 31.10.2014. A perusal of return
filed by the respondent No.2&3 would show that on
behalf of Chief Electoral Officer, the reply was filed on
merits of the matter, but no application for
vacation/modification of stay dated 23.09.2014 was
sought by the respondent-contemnor herein and the
petitioner’s writ petition was ultimately dismissed by the
Division Bench of this court on 21.11.2014.
· The present contempt petition for initiating contempt
proceeding for disobedience of interim order by
respondent/contemnor was filed on 05.01.2015 after
dismissed of writ petition on merits.
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10. I have heard learned counsels for the parties and paid
thoughtful consideration to their submissions and perused the
record with utmost circumspection.
11. The Contempt of Courts Act, 1971 defines “contempt of court”
in Section 2(a) to mean “civil contempt or criminal contempt”.
“Civil contempt” is defined in Section 2(b) to mean “wilful
disobedience to any judgment, decree, direction, order, writ or
other process of a court or wilful breach of an undertaking
given to a court”.
12. It is well settled law, before a proceeding for contempt can
succeed, it is of paramount importance to establish first, the
services of the order of the Court said to have been disobeyed
upon the person alleged to have committed contempt thereof
secondly the precise act of contempt, thirdly the precise
responsibility of the contemnor in the act of contempt, and
fourthly the date of the alleged contempt being subsequent to
the service of the order said to have been disobeyed. These
are the four indispensable requisites and failure to establish
any one of them must mean dismissal of the petition for
contempt.
13. For a contempt action to lie, it is necessary for the parent order
to be an enforceable order. To determiner whether there has
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been disobedience or breach of an order is a mixed question of
fact and law. It requires:
(1) delineating the true scope and content of the parent order;
and
(2) examining the acts that allegedly constitute contempt.
14. It is not in dispute that in the present case, interim order
directing the respondent/contemnor to allow the contempt
petitioner to participate in tender proceeding was passed on
23.9.2014 and communicated to contemnor on 27.09.2014 and
writ petition came to be dismissed on 21.11.2014 and,
thereafter, contempt petition was filed on 05.01.2015.
15. Thus in light of the aforesaid fact, question would be, the day
(05.01.2015) on which the contempt petition was filed alleging
non-compliance of interim order dated 23.09.2014 and seeking
initiation of contempt proceeding for disobeying, whether such
an interim order was enforceable order in light of final order
passed by this Court 21.11.2014 dismissing the writ petition?
16. It is well settled law based on Doctrine of merger that once a
final order is passed, all the earlier interim orders merge into
the final order, and the interim orders cease to exist.
17. In this context, the judgment of Supreme Court rendered in
case of Prem Chandra Agarwal and another v. Uttar
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Pradesh Financial Corporation and others1 may be noticed
herein profitably.
“3. It is a well-settled principle that once a final order
is passed, all the earlier interim orders merge into
the final order, and the interim order cease to exist.
In this appeal, since the final order has been passed
by the High Court, obviously all the interim order
passed by the High Court in the same writ petition
cease to exist automatically. Consequently, any
direction given in the interim order dated 24-4-2008
also ceases to exist. In view of the final order passed
by the High Court, the impugned interim order and
any direction therein have ceased to exist. The
appeal has become infructuous and is, accordingly,
dismissed.”
18. Similarly, in celebrated judgment of the Supreme Court in case
of Kunhayammed and others v. State of Kerala and
another2, their Lordships of the Supreme Court has explained
the Doctrine of merger in the following words:
“12.The logic underlying the doctrine of merger is
that there cannot be more than one decree or
operative orders governing the same subject-matter
at a given point of time. When a decree or order
passed by an inferior court, tribunal or authority was
subjected to a remedy available under the law
before a superior forum then, though the decree or
order under challenge continues to be effective and
binding, nevertheless its finality is put in jeopardy.
Once the superior court has disposed of the lis
before it either way- whether the decree or order
under appeal is set aside or modified or simply
confirmed, it is the decree or order of the superior
court, tribunal or authority which is the final, binding
and operative decree or order wherein merges the
decree or order passed by the court, tribunal or the
authority below. However, the doctrine is not of
1 (2009) 11 SCC 479
2 (2000) 6 SCC 359
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universal or unlimited application. The nature of
jurisdiction exercised by the superior forum and the
content or subject-matter of challenge laid or which
could have been laid shall have to be kept in view.”
19. Applying the principles of law enunciated by Supreme Court in
the aforesaid cases Prem Chandra Agarwal (supra) and
Kunhayammed (supra), if the facts of the case in hand are
examined, it is quite vivid that interim order passed by this
Court on 23.09.2014 was remain operative till the final order
was passed on 21.11.2014 dismissing the writ petition and
upon passing final order, interim order passed on 23.09.2014
merged into final order and the interim order dated 23.09.2014
cease to exist, only thereafter with delay of one month
contempt petition was filed on 05.01.2015 alleging noncompliance
of order dated 23.09.2014, as such, in the
considered opinion of this Court, the day on which the
contempt petition was filed, there was no enforceable order of
this Court operating as upon the dismissal of writ petition, the
interim order dated 23.09.2014 ceased to exist and became
in-operative and ceased to have any independent existence
and status after dismissal of writ petition. At this point, it is
appropriate to note this Court is alive to the legal position that
disobedience of the interim order passed by the Court is
punishable even if interim order is subsequently vacated or
relief is refused to the party in the main proceedings and
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dismissal cannot justify disobedience of such order by the
other party. [Kindly see Prithawi Nath Ram v. State of
Jharkhand and others3]. But the facts of the present case are
quite distinguishable as in the instant case no contempt petition
praying for initiation of contempt proceeding was filed by the
contemnor during the period that is 23.09.2014 to 21.11.2014,
when the interim order was in operation and enforceable.
20. At this stage, it would be appropriate to notice the extremely
recent judgement rendered by Supreme Court in matter of Gauri
Shankar Pd. Rai v. Sajal Chakroborty, Chief Secretary,
Govt. of Jharkhand and Ors.4 Wherein their Lordships of the
Supreme Court has held that the contempt proceedings can be
maintained against the contemnor by the complainant only
when there is wilful disobedience of the judgment and order.
21. Thus contempt proceedings for disobedience of order dated
23.09.2014, at this stage, cannot be initiated as there is no
enforceable order for maintaining and initiating contempt
petition against the respondent/contemnor.
22. As a fall out and consequence of above analysis, rule issued to
respondent-contemnor on 08.01.2015 is hereby discharged.
The contempt petition is dismissed with costs computed
3 (2004) 7 SCC 261
4 JT 2015 (4) SC 1
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at Rs. 2,500/- and contempt proceeding against the
respondent/contemnor herein is hereby dropped.
Judge
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