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M/s. Krebs Manufacturing & Services Ltd. & Another v/s Vijoy Kumar Prasad

    W.P.C.R.C. 77(W) of 2016 with W.P. 2780(W) of 2015
    Decided On, 31 March 2016
    At, High Court of Judicature at Calcutta
    For the Petitioners: Bidyut Roy, Aparna Ghosh, Advocates. For the Respondent: B.R. Bhattacharyya, S.C. Prasad, Advocates.

Judgment Text
1. Pursuant to my earlier order dated March 22, 2016, the alleged contemnor, Sri. Vijoy Kumar Prasad, is personally present in Court.

2. Mr. Bhattacharyya, the learned Senior Counsel for the alleged contemnor, has filed in Court today an answer to the rule in the form of an affidavit affirmed by the alleged contemnor. Let the same be kept with the record.

3. The alleged contemnor has given a sequence of events up to March 17, 2015 and submits that a sum of Rs. 15,27,026/- was kept in a separate fixed deposit account with the State Bank of India, Park Street Branch, Kolkata on August 8, 2015. The Court directed the Provident Fund authorities to set apart the money within a period of 10 days from the date of communication of the order. The order was communicated on February 19, 2015.

4. There is no explanation whatsoever for the delayed deposit and consequently for the violation of the Court’s order. If for any administrative reason, the alleged contemnor found it difficult to comply with the Court’s order within the timeframe he could have approached the Court for extension of time as the writ petition is still pending. He did not take any steps. Thus, there has been a delay of about six months in complying with the Court’s order.

5. There has been a further violation of the Court’s order in not communicating the delayed compliance of the Court’s order to the petitioners within the time. There has been a statement in the affidavit that the respective departments violated the instruction given by the alleged contemnor. Obviously such instruction was not given in the form of a written order. Otherwise, the alleged contemnor would have mentioned this in the affidavit with reference to the specific date and number of the order. The affidavit is also silent about the steps taken by the alleged contemnor as against the erring officials of the concerned department for non-compliance of the order passed by him.

6. Mr. Bhattacharyya’s predicaments are far too obvious. He has, in his usual fairness, submitted that he cannot improve upon what transpires from the record.

7. Given the affidavit as it is, I have no other alternative but to hold the alleged contemnor to be negligent in complying with the order of the Court. He failed to exercise his due diligence which is expected of a person holding such a high post in complying with the Court’s direction. Even if the explanation up to middle of March, 2015 is accepted, the lack of explanation from that date till the date the said amount was set apart by way of a fixed deposit, has not been explained.

8. Mr. Bhattacharyya submitted that in order to hold a person guilty of contempt, it is necessary to find that the alleged contemnor has violated the order of Court wilfully and deliberately. It is true and very true that each and every violation of the Court’s order does not attract the odium of a contemptuous conduct.

9. The problem, however, is to be addressed from a more pragmatic point of view. For all practical purposes the petitioners cannot do more than pleading that in spite of communication the order has not been complied with. Whether despite due diligence or best intentions on the part of the alleged contemnor the order could not be complied with cannot be proved by the petitioners. The onus of proving the same lies entirely on the alleged contemnor by virtue of the principle of law analogous to Section 106 of the Evidence Act, i.e. a fact within the special knowledge of a party has to be proved by him. That in spite of his best intentions to comply with the order, he could not do it has to be established by the alleged contemnor. Even if the initial onus is on the petitioner to prove noncompliance of the Court’s order, the moment a defence is taken that there was no wilful element in it, the onus shifts on to the alleged contemnor who takes such a defence. The steps taken by the alleged contemnor for compliance of the order or what prevented them from complying with it is not likely to be within the knowledge of the petitioner. This would be within the special knowledge of the alleged contemnor. Therefore, the onus to prove that disobedience of the Court’s order was not wilfil is upon the alleged contemnor. If he fails to do, the Court would be entitled to draw a presumption adverse to him. About a century ago the Judicial Committee of the Privy Council in the case of T.S. Murugesam Pillai v. M.D. Ganan Sambandha Pandara Sannadhi and others, reported in A.I.R. 1917 P.C. 6, used a caution: 'A practise has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing accordingly to furnish to the Courts the best material for its decision'. With regard to the parties to the suit (we can read it as a Court proceeding), Their Lordships described it as 'an inversion of sound practise'. The same principle holds good here also. Even if Evidence Act per se does not apply to a contempt proceeding, the basic principle underlying the Act which has a universal application or the general principle on which the onus of a party is determined must be deemed to have application to any proceeding, including the present one.

10. This is a case where there has not been any pleading to that effect, far less any reference to any order passed by him for compliance of the order. The very big time gap from the middle of March, 2015 till first week of August, 2015 is suggestive and lack of any explanation is fatal.

11. I, therefore, hold the alleged contemnor guilty of contempt. However, considering the fact that he has tendered his unconditional apology for the delayed execution of the Court’s order, I do not propose to impose any sentence upon him. He is cautioned not to be so lethargic in complying with the Court’s order ev

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er in future. 12. Since the alleged contemnor has stated that the factum of opening a fixed deposit account could not be communicated to the petitioners in time due to laches on the part of the department concerned, the Court expects him to find out the person for whose laches the Court’s order could not be complied with. 13. The Rule stands discharged. The contempt proceeding is dropped. 14. Personal appearance of Sri. Vijoy Kumar Prasad is dispensed with. Urgent Photostat certified copy of the order, if applied for, be supplied to the parties at an early date. Contempt application is disposed of.