JUDGMENT [ENTITY], J.
1. This Contempt of Court Case is filed by the petitioner in [CASE NUMBER] which was disposed of by a leaned Single Judge of this Court as per judgment dated 5.4.2001.
2. Petitioner, who is the proprietor of Udaya Agencies at Palakkad, is a wholesale kerosene dealer under the [ACT]. 44 retail dealers in Palakkad Taluk are to lift kerosene from this wholesale dealer. An association under the name and style "Kerala State Podhuvidharana Sangatana" which is an organisation allegedly sponsored by the Communist Party of India made certain complaints about the functioning of the wholesale dealership of the petitioner, and in pursuance thereof action was taken by the authority under Kerosene Order to delink 11 retail shops from the petitioner's wholesale depot. Aggrieved by this action, petitioner approached the District Collector, Palakkad, seeking orders relining the 11 retail shops to the petitioner's wholesale depot. Petitioner alleged before the District Collector that the Kerala State Podhuvitharana Sanghatana made false allegations against the petitioner taking advantage of the political mileage since the Minister in charge of the department of Food and Civil Supplies happened to be a person in the leadership of the Communist Party of India.
3. The District Collector after making enquiries into the allegations and hearing the respective parties passed order dated 17.2.2000 disapproving the delinking from the petitioner's wholesale depot. Against this order of the District Collector, the Association filed a statutory revision before the Commissioner for Civil Supplies. Pending disposal of that revision petition, a prayer for staying the order of the District Collector was also made. But the Civil Supplies Commissioner did not issue any order of stay. Dissatisfied, the Association approached the Minister for Food and Civil Supplies and thereupon the Secretary to Government, Food and Civil Supplies, issued order dated 24.2.2001 staying the order of the District Collector. Aggrieved by that order, the petitioner filed [CASE NUMBER] before this Court.
4. A learned Single Judge of this Court admitted the Writ Petition on 8.3.2001 and granted an interim order staying the impugned order of the Government Secretary. In pursuance of that interim order the District Collector directed the 1st respondent herein to issue allocation order for a quantity of 144 KL meant for the entire 45 shops which include the 11 shops sought to be detached earlier from the wholesale depot of the petitioner. Thereupon, the 1st respondent passed the order dated 19.3.2001 complying with the order of the District Collector. On the same day, the 2nd respondent issued notices to all the 11 retail dealers to lift the kerosene in accordance with the revised allocation order. But the dealers did not co-operate.
5. When matters stood as above, [CASE NUMBER] came up for final hearing and the learned Single Judge after hearing both sides disposed of the O.P. by judgment dated 5.4.2001 (Annexure G). The relevant portion of the judgment is extracted below for convenience:
Accordingly, the Original Petition is disposed of with a direction to the 4th respondent to dispose of the revision on the merits and with due notice to both sides within a period of one month from the date on which a copy of this judgment is produce before him. Until the revision is so disposed of, the status quo, as prevailing on today, will continue".
6. Petitioner submits that as on the date of the judgment 45 retail shops including the 11 ARDS under dispute stood linked with the wholesale depot of the petitioner. This was so, by virtue of the interim order of stay issued by this Court and the consequential orders passed by the District Collector as also respondents 1 and 2 herein on 19.3.2001. Hence in due compliance with the direction issued by this Court in judgment dt. 5.4.2001, the same situation should continue until the statutory revision is disposed of by the Commissioner of Civil Supplies. But in utter disregard of the direction issued by this Court to maintain status quo as prevailed on 5.4.2001, respondents 1 and 2 delinked 11 retail shops as per Annexure H order dt. 9.4.2001 thereby deliberately flouting the specific direction contained in judgment dated 5.4.2001 in [CASE NUMBER]. Hence, the petitioner filed this Contempt of Court Case.
7. Pursuant to notices issued by the learned Single Judge directing respondents 1 and 2 to appear and show cause why proceedings under the [ACT] should not be taken, respondents 1 and 2 appeared in person and filed a statement on 23.8.2001 raising the plea that the delinking was done on the advice of the Advocate General who issued letter dated 27.4.2001 to the 1st respondent in reply to a fax message sent by that respondent on 11.4.2001 seeking the clarification of the Advocate General as to whether "the order passed by the Government letter dated 14.3.2001 staying the order of the District Collector will prevail upon disposal of the Original Petition, [CASE NUMBER]".
8. Petitioner filed a reply affidavit pointing out two material defects in the statement filed by respondents 1 and 2, namely, (1) the respondents ought to have filed the statement in the form of an affidavit and (2) the explanation furnished by them that they acted on the basis of the advice given by the Advocate General is false.
9. The learned Single Judge after hearing the counsel for the petitioner as also the respondents passed order dated 24.9.2001 expressing his opinion that further proceedings against the respondents should continue. In that view of the matter, the Contempt of Court Case was posted before this Bench.
10. Respondents 1 and 2 appeared in person and filed joint counter affidavit dated 11.10.2001. Before us also, they repeated their attempts to justify Annexure H order. The following contentions were taken in that counter affidavit: (1) Though this Court issued an interim order on 8.3.2001 staying the order of the Secretary to Government and consequential directions by the respondents on 19.3.2001 relinking the 11 retail shops sought to be detached from the wholesale depot of the petitioner, the retail dealers of the said 11 ARDs did not lift the kerosene from the petitioner's shop. According to the respondents the above state of affairs was the status quo as prevailed on the date of judgment dated 5.4.2001. (2) Since the interim order of stay passed by the Government was not quashed by this Court while disposing of the Original Petition, the respondents thought that the impugned order issued by the Government was allowed to continue in force, more so for the reason that the CMP in which stay order was granted by this Court on 8.3.2001 was dismissed consequent on the final disposal of the O.P. and (3) The 1st respondent sought for directions from the District Collector as to the real nature and scope of the direction of this Court to maintain status quo and the District Collector addressed the Advocate General for legal opinion and thereupon the Advocate General by letter dated 27.4.2001 opined that the order of stay issued by the Government would prevail. The respondents contend that the offending order that is, Annexure H dated 9.4.2001 was passed by the 1st respondent only as per clear directions from the District Collector.
11. The averment implicating the District Collector compelled the petitioner to file [CASE NUMBER] to implead the District Collector as additional respondent No. 3. This application was allowed and notice was issued to the 3rd respondent to appear before this Court and show cause why proceedings under the [ACT] should not be taken against him.
12. After receiving notice, the additional respondent No. 3 appeared before this Court and filed his affidavit on 6.11.2001 wherein he categorically denied the allegation made against him by respondents 1 and 2 that it was he who directed the 1st respondent to pass Annexure H order. He has stated in the affidavit that on receipt of the order of interim stay granted by this Court in [CASE NUMBER], he directed the 1st respondent to implement the Court direction immediately and speak. The files would show that he issued further directions to take necessary action on 17.3.2001. He asserts that no orders were issued by him seeking any clarification as regard 'status quo' and he did not direct the 1st respondent to seek any such clarification from the Advocate General. After the interim order passed by this Court staying the order of the Secretary to Government, he passed orders allotting 14000 litres of Kerosene to the petitioner for the month of March, 2001. Thereafter no orders were issued by him reducing the quantity of kerosene allotted to the petitioner. The 1st respondent placed before him the opinion he got from the Advocate General. He did not, however, pass any order on that, except to direct the 1st respondent to await final decisions in the matter. It is stated in the affidavit that on 8.5.2001 the revision pending before the Commissioner of Civil Supplies was disposed of upholding the orders passed by the District Collector. Thereupon he gave directions to implement the order of the Commissioner of Civil Supplies. On 12-6-2001, he was transferred to Trivandrum and relieved on 12.6.2001. The following statements from the affidavit of the 3rd respondent is worth quoting:
"I humbly further submit that it not on my direction that the District Supply Officer has obtained the legal opinion from the Advocate General. It is also submitted that after the interim stay of the Government Order by this Hon'ble Court on 8.3.2001, I have never passed any orders delinking 11 ARDs from Udaya Agencies or reducing the allocation of supply of kerosene oil. The above facts will be clearly revealed from the files."
13. In the light of the aforementioned facts, we framed the following charges against respondent No. 1, [ENTITY] and respondent No. 2 [ENTITY] and read over to them on 7.11.2001.
"That you (1) [ENTITY], S/o. [ENTITY], age not known, Dhaya, P.P. Manissery, Ottappalam, (i) by violating the direction contained in the judgment in [CASE NUMBER] dated 5.4.2001, by reducing the quota of kerosene by issuing proceedings dated 9.4.2001 to Udaya Agency committed contempt of this Court and is liable to be punished accordingly, under the [ACT].
(ii) You have by filing a statement before this Court on 23.8.2001 in [CASE NUMBER] tried to mislead this Court by stating that the proceedings dated 9.4.2001 was issued on the basis of the opinion obtained from the Advocate General whereas opinion of the Advocate General is dated 27.4.2001 and your request for opinion itself was only on 11.4.2001."
The charge framed against the 2nd respondent is as follows:
"That you [ENTITY], S/o. Narayanan, [ENTITY], Ambaterveedu, Palakkad (i) by violating the direction contained in the judgment in [CASE NUMBER] dated 5.4.2001, by reducing the quota of kerosene by issuing proceedings dated 9.4.2001 to Udaya Agency committed contempt of this Court and is liable to be punished accordingly, under the [ACT].
(ii) You have by filing a statement before this Court on 23.8.2001 in [CASE NUMBER] tried to mislead this Court by stating that the proceedings dated 9.4.2001 was issued on the basis of the opinion obtained from the Advocate General whereas opinion of the Advocate General is dated 27.4.2001 and your request for opinion itself was only on 11.4.2001".
The matter was thereafter posted to 27.11.2001 to enable the contemners to submit their reply to the charges.
14. On 27.11.2001 respondents 1 and 2 came forward with separate affidavits taking an entirely different stand from what they had taken till then. In paragraph 5 and 6 of the affidavit filed by the 1st respondent reads:
"The above facts are submitted only to explain the circumstances under which Annexure H order dated 9.4.2001 was occasioned to be passed by me. I Have got utmost respect and regard to the orders of this Hon'ble Court, Never in my service, I had no occasion to violate any order of this Hon'ble Court. Now I realise my mistake and I feel that I failed to properly understand the order and the Annexure H is one bordering contempt. I humbly submit that I never intended to violate or commit any wilful contempt or breach of the order of this Hon'ble Court. I had no intention to commit any breach of the orders of this Hon'ble Court. I feel absolutely sorry and regretted in having filed a statement and counter affidavit justifying my action.
I unconditionally withdraw the averments in the statement and counter affidavit filed in the above case and tender my unconditional apology in the matter of issuing Annexure H order. I humbly submit that this Hon'ble Court may graciously be pleased to accept my unconditional apology and drop the Contempt of Court proceedings against me. I express my sincere sorry and regret for all the inconveniences caused to this Hon'ble Court in this matter".
Likewise the 2nd respondents states as follows in paragraph 4 and 5 of his affidavit:
"Now I realise my mistake in issuing the re-allocation order. There was error of judgment or understanding on the part of the 1st respondent in issuing Annexure H order. Naturally that mistake is followed by the re-allocation order issued by me even if it is following the Annexure H order. I realise my mistake. I humbly submit that I never intended to violate or commit any wilful contempt or breach of the order of this Hon'ble Court. I feel absolutely sorry and regretted in having filed a statement and counter affidavit justifying the action along with the Ist respondent. I unconditionally withdraw the averments in the statement and counter affidavit filed in the above case and tender my unconditional apology in the matter of taking steps pursuant to Annexure H order.
I humbly submit that this Hon'ble Court may graciously be pleased to accept my unconditional apology and drop the Contempt of Court proceedings against me. I express my sincere and unqualified sorry and regret for all the inconveniences caused to this Hon'ble Court in this matter."
Thus the affidavits filed by respondents 1 and 2 make it clear that the offending order (Annexure X) cannot be justified and it has bee issued in breach of the directions issued by this Court on 5.4.2001. Though the contemners make an attempt to lighten the gravity of the illegality committed by them by raising a plea of bonafide error, we are convinced that the offending action is bereft of bonafides, but calculated to defeat the order of this Court in Annexure G judgment.
15. The facts and circumstances revealed from the pleadings and the orders available on record clearly go to show that respondents 1 and 2 have knowingly and wilfully violated the judgment of this Court. When called upon to answer the allegation that respondent 1 and 2 deliberately violated this directions issued by this Court, they attempt to justify their action on the strength of Ext. R1(A) letter issued by the Advocate General and shift the responsibility to the District Collector. At first blush it appeared to us that there was some substance in the defence set up by respondents 1 and 2. But on a perusal of the letter issued by the Advocate General, the truth came out that the respondents were attempting to mislead this Court. The offending action was committed on 9.4.2001, whereas the letter of the Advocate General expressing his opinion is dated 27.4.2001. Annexure R1(A) further shows that the 1st respondent sought for the clarification from the Advocate General only on 11.4.2001. It is therefore clear that respondents 1 and 2 put forward a defence which is ex face false and devoid of bonafides. Respondents 1 and 2 are hence guilty of the charge that they, by filing a statement before this Court on 23.8.2001 to the effect that they acted on the basis of the opinion obtained from the Advocate General, tried to mislead this Court. Accordingly, we find respondents 1 and 2 guilty of the charges framed against them coming within the purview of [SECTION] of the [ACT]. The conduct of the contemners herein is such that it has substantially with the due course of justice and hence punishable under [SECTION] of the [ACT].
16. The question now remains to be considered is whether what should be the sentence to be awarded to respondents 1 and 2. It is true that they have tendered unconditional apology and pleaded for the mercy of this Court. This has, of course, been done after unconditionally withdrawing all the averments and statements made earlier justifying their offending action. Respondents submit that this change in their conduct is the result of they becoming conscious of the illegally committed by them.
17. After bestowing due consideration to all relevant aspects of the case, we feel that the respondent contemners cannot go unpunished Respondents 1 and 2 had ample opportunities to tender the apology if they genuinely wished to do so. The case come up for our consideration on a number of occasions from the date of their first appearance till the framing of charges. On none of these occasions respondents 1 and 2 expressed any remorse or repentance. On the other hand they raised untenable contentions and without any prick of conscience dragged the 3rd respondent to this Court. It is to be noted that the rules framed by this Court under the [ACT] afford opportunity to the contemner to tender his apology. This opportunity provide under [SECTION] of the Rules has to be availed by the contemner before framing the charges. Once charges are framed, the Court is empowered to examine whether the reply furnished by the contemner is capable of absolving him from the liability thereby entitling him for discharge or is such that the Court has to find him guilty of the charges. Respondents 1 and 2 by withdrawing the averments already made and tendering unconditional apology on 27.11.2001 do not contest the matter. They have thus pleaded guilty to the charges and we have found them guilty of the charge of Contempt of Court. It is true that under [SECTION] of the [ACT] is it open to this Court to take into consideration the apology tendered by the contemner at any stage of the proceedings, but acceptance of the apology depends on the satisfaction of this Court that it is bonafide.
18. Going through the decisions of the Apex Court on the question of accepting the apology tendered by those facing contempt of Court action, we find that affidavits expressing regret and tendering apology by contemners have not been accept merely on the facts of such affidavit. In [PRECEDENT] their Lordships of the Supreme Court said as follows:
"We do not think that merely because the appellants has tendered his apology we should set aside the sentence and allow him to go unpunished".
It was further held that if such an apology were to be accepted, as a rule, and not as an exception, their Lordships would in fact by virtually issuing a 'licence' to scandalise courts and commit contempt of court with impunity. The following passage from the judgment of the Supreme Court in [PRECEDENT] appears to be relevant in this context:
"All the five officers have no doubt tendered unqualified apology to this Court but in the fats and circumstances stated above, it would be a travesty of justice to accept the same. They are senior and experienced officers and must be presumed to know that under the constitutional scheme obtaining in this country, orders to this Court have to be obeyed implicitly and that orders of the apex Court - for that matter, any court - should not be trifled with. We have found hereinabove that they have acted deliberately to subvert the orders of this Court, evidently at the instance of the Association of Private Medical Colleges. It is equally necessary to erase an impression which appears to be gaining ground that the 'mantra' of unconditional apology is a complete answer to violations and infractions of the orders of this Court."
Making unfounded counter allegations by a contemner under the guise of defending his case was found by the Apex Court in Re: [PRECEDENT] an objectionable conduct disentitling him to pray for the indulgence of the Court. The Apex Court declined the prayer of the contemner in In Re: [PRECEDENT] to condone the contempt committed by the contemner finding that the apology tendered by him did not appear to be bonafide and genuine in view of the attitude exhibited by him in court during the proceedings and further finding that the apology tendered was one made to escape punishment. In [PRECEDENT] the following was said by the Supreme Court:
"This Court in our view, would be failing in its duties, if the matter in question is not dealt with in a manner proper and effective for maintenance of majesty of Courts as otherwise the Law Courts would lose its efficacy to the litigant public."
19. The discussions made above about the fats of this case and the law on the subject, lead us to one conclusion, namely, that the apology tendered by the contemners-respondents 1 and 2, is not bonafide but only to escape punishment. Their conduct in flouting the orders of this Court coupled with the manner in which they attempt to defend the charges is reprehensible and does not deserve to be condoned. Accordingly, we sentence respondents 1 and 2 to pay a fine of Rs. 2,000/- each under [SECTION] of the [ACT] and in default of payment of fine, to undergo simple imprisonment for a period of six weeks. They are granted two weeks from today to pay the fine amount.
20. We are informed that the respondents have retired from service. However, they apprehend proceedings against them by the State affecting their right to enjoy the retirement benefits. Having regard to the fact that respondents 1 and 2 are not likely to commit similar offences by holding civil posts any more under the State, we think it appropriate that the stigma attached to the order of conviction and sentence passed against respondents 1 and 2 in these proceedings need not affect the rights of the respondents to enjoy the retirement benefits on account of the blemishless service otherwise rendered by them.