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TMI Blog2022 (12) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... to consequential benefits granted to the applicant - petitioner, only then it was deleted from the web portal. This fact has been admitted by the opposite party in his affidavit dated 05.12.2022. This clearly amounts violation of the judgment and order passed by the division bench of this Court on 31.03.2015. Civil contempt is punishable with imprisonment as well as fine. In a given case, the court may also penalise the party in contempt by ordering him to pay the costs of the application and a fine can also be imposed upon the contemnor. Disobedience of this Court's order strikes at the very root of the rule of law on which the judicial system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. Hence, it is not only the third pillar but also the central pillar of the democratic State. On perusal of judgment and order dated 31.03.2015, it is crystal clear that notice issued by the Assessing Officer was quashed on the ground of jurisdiction as well as consequential orders were also directed to be set-aside. Meaning thereby, the Assessing Officer has to take care that the entry existing on the web portal was to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish Gidwani, Deputy Commissioner of Income Tax, Range-2, Lucknow. In case of default, he would suffer one day's further simple imprisonment. The contemnor - opposite parity Mr. Harish Gidwani, Deputy Commissioner of Income Tax, Range-2, Lucknow will surrender before the Senior Registrar of this Court at 03.00 p.m. on 16.12.2022, who will send him jail to serve out the sentence. - Contempt Application (Civil) No. - 562 of 2016 - - - Dated:- 16-12-2022 - Hon'ble Irshad Ali, J. For the Applicant : Mudit Agarwal,Anand Prakash Sinha,Radhika Singh For the Opposite Party : Manish Mishra ORDER HON'BLE IRSHAD ALI, J. 1. Heard Ms. Radhika Singh, learned counsel for applicant and Sri Manish Mishra, learned counsel for opposite parties. 2. The present contempt application under Section 12 of the Contempt of Courts Act, 1971 has been filed alleging willful and deliberate disobedience of judgment and order dated 31.03.2015 passed by a Division Bench of this Court in Writ Petition No.9525 (M/B) of 2013, whereby following direction was issued: A perusal of Annexure SA-3 annexed with the supplementary affidavit dated 31.3.2015 shows that in respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Deputy Commissioner of Income Tax, Range - 2, Lucknow under Section 143 (2) of Income Tax Act, 1961 in respect of assessment year 2012-13 on the ground that the said notice was de hors the provisions contained under Section 124 of the Act and has been issued in excess of jurisdiction conferred upon the respondent. 4. Submission of learned counsel for the applicant is that the jurisdiction to assess the petitioner at Lucknow is conspicuously absent in the income tax authorities at Lucknow and that the petitioner can only be assessed by the Assessing Officer at New Delhi, where the petitioner had filed his returns for the assessment year 2013-14 but the opposite party - contemnor has issued notices for manual scrutiny in respect of assessment year 2013-14 and in spite of objection filed by the applicant, the opposite party has threatened to finalize the proceedings ex-parte by 30.03.2015. 5. She next submitted that the cause of action for filing the contempt petition arose upon receipt of notice dated 24.06.2015 at his Delhi address and again on 15.03.2016, whereby another notice was issued to the applicant threatening to make ex-parte assessment pursuant to earlier notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... varman Thirumulpad (102) through the Amicus Curiae Vs. Ashok Khot and another; (2006) 5 SCC 1. c) Patel Rajnikant Dhulabhai and another Vs. Patel Chandrakant Dhulabhai and others; (2008) 14 SCC 561. 11. On the other hand, learned counsel for the opposite party submitted that for the assessment year 2011-12, the petitioner preferred Writ Petition No.1848 (M/B) of 2014 challenging the order dated 05.02.2014, which has been dismissed vide order dated 27.03.2014. This Court in the aforesaid writ petition has held that main place of profession of the petitioner would be at Lucknow for the assessment year 2011-12 and accordingly, the Assessing Officer has rightly exercised power under Section 142 of the Act. 12. He further submitted that the petitioner preferred another writ petition No.9525 (M/B) of 2013 for the assessment year 2012-13 challenging the notice issued under Section 143 (2) of the Income Tax Act, which has been quashed vide order dated 31.03.2015. 13. He submitted that the respondent had not proceeded against the petitioner in any manner for the assessment year 2012-13 as per mandate of judgment and order of this Court dated 31.03.2015 and submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his / her jurisdiction. 18. He next submitted that in order to get the jurisdiction changed, an order under Section 127 of Income Tax Act, 1961 issued by the competent authority is required and the assessee was requested to file copy of application under Section 127 of Income Tax Act, 1961 before the competent authority, which was not complied with. 19. He further submitted that for the assessment year 2011-12, the objection was filed with delay by the applicant - petitioner, therefore, the same was not considered by this Court in Writ Petition No.1848 (M/B) of 2014 and the same was dismissed and it has been denied that for assessment year 2012-13, the petitioner was assessed at New Delhi, as there was no assessment made by any Assessing Officer for 2012-13. 20. He next submitted that in the order dated 31.03.2015 passed in Writ Petition No.9525 (M/B) of 2013, the Court has not recorded any finding that the assessment for the assessment year 2012-13 has been done at New Delhi and once this Court has held that for the assessment year 2012-13, the Assessing Officer at Lucknow has no jurisdiction, the concerned Assessing Officer, at that time and thereafter, has never proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pass and they being the proper applicants, the formal application being by Sebastian M. Hongray, we direct that as a measure of exemplary costs as is permissible in such cases, respondents Nos. 1 and 2 shall pay Rs 1 lac to each of the aforementioned two women within a period of four weeks from today. 8. A query was posed to the learned Attorney General about the further step to be taken. It was made clear that further adjourning the matter to enable the respondents to trace or locate the two missing persons is to shut the eyes to the reality and to pursue a mirage. As we are inclined to direct registration of an offence and an investigation, we express no opinion as to what fate has befallen to Shri C. Daniel and Shri C. Paul, the missing two persons in respect of whom the writ of habeas corpus was issued save and except saying that they have not met their tragic end in an encounter as is usually claimed and the only possible inference that can be drawn from circumstance already discussed is that both of them must have met an unnatural death. Prima facie, it would be an offence of murder. Who is individually or collectively the perpetrator of the crime or is responsible for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tempt. 20. In B.M. Bhattacharjee (Major General) v. Russel Estate Corpn. it was observed by this Court that all of the officers of the Government must be presumed to know that under the constitutional scheme obtaining in this country, orders of the courts have to be obeyed implicitly and that orders of the apex court-for that matter any court- should not be trifled with . 21. Any country or society professing rule of law as its basic feature or characteristic does not distinguish between high or low, weak or mighty. Only monarchies and even some democracies have adopted the age old principle that the king cannot be sued in his own courts. 22. Professor Dicey's words in relation to England are equally applicable to any nation in the world. He said as follows: When we speak of the rule of law as a characteristic of our country, not only that with us no man is above the law but that every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. In England the idea of legal equality, or the universal subjection of all classes to one law administered by the ordinary courts, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time when the contemnor finds that the court is going to impose punishment it ceases to be an apology and becomes an act of a cringing coward. 32. Apology is not a weapon of defence to purge the guilty of their offence, nor is it intended to operate as universal panacea, but it is intended to be evidence of real contriteness. As was noted in L.D. Jaikwal v. State of U.P. (SCC p. 406, para 1) We are sorry to say we cannot subscribe to the 'slap-say sorry-and forget' school of thought in administration of contempt jurisprudence. Saying 'sorry' does not make the slapper taken the slap smart less upon the said hypocritical word being uttered. Apology shall not be paper apology and expression of sorrow should come from the heart and not from the pen. For it is one thing to 'say' sorry-it is another to 'feel' sorry. 33. Proceedings for contempt are essentially personal and punitive. This does not mean that it is not open to the Court, as a matter of law to make a finding of contempt against any official of the Government say Home Secretary or a Minister. 34. While contempt proceedings usually have these characteristics and contemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued prior to this Court's order dated 4.3.1997. That was the case of an officer in the lower rung. Considering the high positions held by the contemnors more stringent punishment is called for, and, therefore, we are compressing custodial sentence. iii) Patel Rajnikant Dhulabhai and another (supra): 58. The provisions of the Contempt of Courts Act, 1971 have also been invoked. Section 2 of the Act is a definition clause. Clause (a) enacts that contempt of court means `civil contempt or criminal contempt'. Clause (b) defines `civil contempt' thus; 2. (b) `civil contempt' means wilful disobedience to any judgement, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. Reading of the above clause makes it clear that the following conditions must be satisfied before a person can be held to have committed a civil contempt; (i) there must be a judgment, decree, direction, order, writ or other process of a Court (or an undertaking given to a Court); (ii) there must be disobedience to such judgment, decree, direction, order, writ or other process of a Court (or breach of undertaking giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ience of the judgment or order of the Court. But it was indicated that even negligence and carelessness may amount to contempt. It was further observed that issuance of notice for contempt of Court and power to punish are having far reaching consequences, and as such, they should be resorted to only when a clear case of wilful disobedience of the court's order is made out. A petitioner who complains breach of Court's order must allege deliberate or contumacious disobedience of the Court's order and if such allegation is proved, contempt can be said to have been made out, not otherwise. The Court noted that power to punish for contempt is intended to maintain effective legal system. It is exercised to prevent perversion of the course of justice. 62. In the celebrated decision of Attorney General v. Times Newspaper Ltd.; 1974 AC 273 : (1973) 3 All ER 54 : (1973) 3 WLR 298; Lord Diplock stated: There is an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity. 63. In Anil Ratan Sarkar Ors. v. Hirak Ghosh Ors., (2002) 4 SCC 21, thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the precedents cited at the bar, namely, Jhareswar Prasad Paul and Another vs. Tarak Nath Ganguly and Others[3], V.M.Manohar Prasad vs. N. Ratnam Raju and Another[4], Bihar Finance Service House Construction Cooperative Society Ltd. vs. Gautam Goswami and Others[5] and Union of India and Others vs. Subedar Devassy PV[6]. 16. Applying the above settled principles to the case before us, it is clear that the direction of the High Court for creation of supernumerary posts of Marine Assistant Radio Operator cannot be countenanced. Not only the Courts must act with utmost restraint before compelling the executive to create additional posts, the impugned direction virtually amounts to supplementing the directions contained in the order of the High Court dated 02.8.2006. The alterative direction i.e. to grant parity of pay could very well have been occasioned by the stand taken by the Corporation with regard to the necessity of keeping in existence the cadre itself in view of the operational needs of the Corporation. If despite the specific stand taken by the Corporation in this regard the High Court was of the view that the respondents should be absorbed as Marine Assistant Radio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irection; neither would it be permissible for the court to issue any supplementary or incidental directions, which are not to be found in the original judgment and order. The court is only concerned with the wilful or deliberate noncompliance of the directions issued in the original judgment and order. iii) Badri Vishal Pandey and Ors. (Supra): 25. Still further there is no direction in the order passed by this Court to reinstate the petitioners or to place them in minimum or regular pay scale. The contempt jurisdiction cannot be invoked on the basis of impressions, when the order of the Court does not contain any direction for reinstatement or for grant of regular pay scale. The contempt would be made out when there is wilful disobedience to the orders of this Court. Since the Order of this Court is not of reinstatement, the petitioners under the garb of the contempt petition cannot seek reinstatement, when nothing was granted by this Court. 25. Vide order of this Court dated 28.09.2022, a show cause notice was issued to the opposite party - Mr. Harish Gidwani, Deputy Commissioner of Income Tax, Range-2, Lucknow that why he should not be tried and punished under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the opposite party. It was highlighted by learned counsel for the applicant that the opposite party has acted in defiance of the order passed by this Court and his conduct construe contempt by way of willful disobedience of direction issued by this Court. The manner, in which the contemnor has acted, itself clearly tends to lower the authority of this Court and obstructs the administration of justice, as his conduct falls both under the definition of Civil contempt, as well as seeing dimensions of the matters, under criminal contempt. 31. On perusal of judgment and order dated 31.03.2015, it is crystal clear that notice issued by the Assessing Officer was quashed on the ground of jurisdiction as well as consequential orders were also directed to be set-aside. Meaning thereby, the Assessing Officer has to take care that the entry existing on the web portal was to be deleted immediately after passing of the judgment and order dated 31.03.2015 but deliberately and intentionally the outstanding of notice of assessment year 2011- 12 became operative on the web portal till seven months, which ruined the reputation of the applicant and this act of the Income Tax authority was in de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted immediately after the judgment but the authorities have permitted to continue the outstanding amount on the web portal for a period of seven months, which clearly violates the judgment and order dated 31.03.2015 and this act and action of the opposite party is deliberate in nature, for which he is liable to be punished. 38. In the opinion of this Court, the action of the opposite party is not only contemptuous but is also malicious. He took care with the money of the applicant in spite of clear direction of this Court and there is no justifiable reason for the said action. If the action of Mr. Harish Gidwani, Deputy Commissioner of Income Tax, Range -2, Lucknow is considered in the background by the allegations made against him, it was his purposeful act to harass the applicant in spite of order of the writ Court. Unnecessarily mens rea is not required to be proved in a case of contempt but in the present case the violation is willful, deliberate and coupled with intention and motive to harass the applicant. 39. For the reasons given above, this Court finds the opposite party - Mr. Harish Gidwani, Deputy Commissioner of Income Tax, Range-2, Lucknow to be guilty under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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