SMCP. 5-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL SUO MOTU CONTEMPT PETITION No. 5 OF 2011 High Court on its own Motion ... Petitioner Vs. Satyendraprakash Ramnaresh Tiwari & Anr. ... Respondents *** Mr. S. P. Kadam, appointed as the amicus curaie. Mr. S. M. Shettigar, for Respondent No.1. Respondent No. 1 is present in person in the Court. Respondent No. 2 is present in person in the Court. Mr. K. V. Saste, APP for the State. *** CORAM : V. M. KANADE, & A. M. THIPSAY, JJ. DATE : SEPTEMBER 26, 2011 PC: 1. Heard Mr. S. P. Kadam, appointed as the amicus curaie, learned counsel appearing for respondent No.1, and respondent No. 2 who is present in person. Pursuant to a reference made by the 8th Labour Court, at Bandra by an order dated 24th September 2010 under Section 15(2) of the Contempt of Courts Act, asking this Court to initiate action of criminal contempt, as defined under S. 2(c)(i), (ii), (iii) of the Contempt of Courts Act, 1971, this Court was pleased to issue show-cause notice by an order dated 5th April, 2011 to SMCP. 5-11 - 2 - respondent No. 1. Reply was filed by the respondent No.1 and thereafter during the course of hearing of the contempt petition, this Court observed that in the reply respondent No. 1 had alleged that his advocate had drafted the said application and therefore, this Court by its order 27th July, 2011 was pleased to issue notice to his advocate who is added as respondent No. 2 to this contempt petition. After the service of notice, he has filed the reply, and the rejoinder was filed by respondent No.1. 2. The brief facts are as under- . An application was filed by respondent No.1 before the 8th Labour Court in Application (IDA) No. 213 of 2005. During the pendency of this application, an application for transfer of the case was made by respondent No. 1 on 13-7-2010 signed by him before the same Court wherein the allegations of corruption, accepting bribe from the Opponent were levelled against the Labour Court. Thereafter, the 8th Labour Court issued a contempt notice on 28-7-2010. No reply was filed to the said show-cause notice, and neither respondent No. 1 nor respondent No. 2 appeared before the Labour Court and therefore, on the basis of the transfer application filed by the Opponent in Application (IDA) No. 213 of 2005, after going through the record, an order of reference was made by the 8th Labour Court. Thereafter a show-cause notice has been issued by this Court. 3. Learned counsel Mr. Kadam, amicus curaie has taken us SMCP. 5-11 - 3 - through the transfer application which was presented before the 8th Labour Court and it is submitted that the allegations which are made are per se contemptuous. He submitted that an application for transfer is not to be made before the same court; the correct procedure is to file an application before the Judge of the Industrial Court. Though this fact was known to respondent Nos. 1 and 2, deliberately said application was filed before the Judicial Officer of the same Court. He submitted that thereafter respondent Nos. 1 and 2 did not appear before the 8th Labour Court. Though they were aware of the show- cause notice, they had appeared in the Court in the morning session. He has also invited our attention to the roznama which indicates that on 13-7-2010 when the concerned application was filed, both - his advocate and the applicant were present. He submitted that the roznama indicates that the advocate (respondent No. 2) argued the said application. He further pointed out that in the affidavit-in-reply filed by respondent No. 1 contemnor, a stand was taken that though he signed the said application, he was not aware of the contents of the thereof; he has taken education in Hindi. It was submitted that, on the other hand, respondent No. 2 in his reply has stated that the application was tendered by respondent No. 1 directly in the Court and he had prepared the said application with the assistance of some other lawyers and the same application was never shown to him. Mr. Kadam, learned counsel further submitted that the contradictory stands were taken by respondent No. 1 and respondent No. 2 and they are trying to shift the blame on each other. He also invited our attention to the several applications filed by respondent No. 1 in SMCP. 5-11 - 4 - English in his own hand writing. 4. Learned counsel appearing on behalf of respondent No. 1 strenuously urged and submitted that respondent No. 1 was not aware about the contents of the said application and also submitted that he did not understand English language since he had taken education in Hindi. 5. We are unable to accept the explanation given by respondent No. 1. In our view, the record clearly indicates that respondent No. 1 was present in the court when the application was filed. Secondly, respondent No. 2 in his affidavit-in-reply has annexed number of documents which are written by respondent No. 1 in English in his own hand writing. This clearly falsifies the contention of respondent No. 1 that he cannot read or write English since he has taken education in Hindi. Apart from that, after the proceedings under Section 15(2) of the Act were initiated by the Labour Court, respondent No. 1 did not file his reply, nor did he appear before the Court in the said proceeding. The roznama also indicates that both – respondent No. 1 and respondent No. 2 were present before the President of the Industrial Court when the same application was heard and no application was made for withdrawal of the transfer application or the allegations made in the said application. Under these circumstances, therefore, we are satisfied that it has been established that respondent No. 1 has committed contempt of the Court, as defined under S. 2(c)(i), (ii), (iii) of the Contempt of Courts Act, 1971. SMCP. 5-11 - 5 - 6. The Apex Court in the case of – Brahma Prakash Sharma & Ors., Appellants Vs. The State of Uttar Pradesh, Respondent1 has held that, ultimately what has to be seen is the injury which is caused to the institution and not to the individual judge and what needs to be protected is the institution; if any allegations of corruption are made, it amounts to scandalizing the institution. Normally, though the Contempt of Courts Act, 1971 has empowered this Court to exercise its contempt jurisdiction and the powers conferred by the Constitution of India under Art. 215, this Court is slow in punishing the contemnor under the Contempt of Courts Act, unless the Court is satisfied that the contempt alleged is a deliberate and willful contempt. We have no hesitation in this case in coming to the conclusion that the contempt alleged against respondent No. 1 falls in the said category. Respondent No. 1, therefore, is convicted under Section 12 of the Contempt of Courts Act, 1971 and is sentenced to suffer simple imprisonment for one month. This order is stayed for a period of six weeks in order to enable respondent No. 1 to challenge the said order before the appropriate forum. 7. During the course of hearing of this contempt petition, notice was issued to respondent No. 2 and he was asked to file an affidavit-in-reply. Accordingly, reply has been filed by him in which he has stated that the said application was prepared by the contemnor through his other advocate and copy of the said application was not given to him and therefore, he was not aware about the contents of the 1 AIR 1954 S. C. 10 (Vol. 41, C.N. 5) SMCP. 5-11 - 6 - said application. He has also stated in his reply that respondent No. 1 had prepared several documents and they are in his own hand writing and are in English. We have noticed from the roznama and the orders which are passed by the Labour Court that respondent No. 2 appears to have participated in the said proceedings, even when the matter was adjourned to the next date i.e. on 28-7-2010, he was present in the Court and he had given his say on one of the application which was filed by the opponent. He also appeared before the Industrial Court. The roznama also indicates that on 13-4-2010 when the application was made, he argued the said application and requested for an adjournment. Prima-facie, therefore, in our view, it appears that respondent No.2 also was a party either in preparing this application or in pursuing this application before the Industrial Court. When he was very well aware, he ought to have known that such an application had to be filed before the Industrial Court. Even before the Industrial Court he was present along with respondent No. 1 when the matter was heard by the President of the Industrial Court, and therefore, in our view, while exercising our inherent jurisdiction under Art. 215 of the Constitution and under Section 15(1) of the Contempt of Courts Act, 1971 a show-cause notice will have to be issued to respondent No. 2 why action should not be taken against him under the Contempt of Courts Act, 1971 for making allegations of corruption against the 8th Labour Court, Bandra in an application for transfer which was presented by respondent No. 1 and argued by him in the 8th Labour Court as well as before the Industrial Court. A Show-cause notice be issued to respondent No.2, returnable after eight weeks. Respondent SMCP. 5-11 - 7 - No.2 is present in the Court. He undertakes to file affidavit-in-reply before the next date date. We request Mr. S. P. Kadam to assist this Court as amicus curaie. . The Suo Motu Contempt Petition is, accordingly, disposed of in the aforesaid terms. [A. M. THIPSAY, J.] [ V. M. KANADE, J.]