Calcutta High Court (Appellete Side)
Smt. Manjusree Chandra & Ors vs State Of W.B. & Ors on 17 May, 2012
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose
1 In the High Court at Calcutta Constitutional Writ Jurisdiction Appellate Side PRESENT:
The Hon'ble Justice Pinaki Chandra Ghose And The Hon'ble Justice Kalyan Jyoti Sengupta And The Hon'ble Justice Biswanath Somadder W.P.S.T. 603 of 2006 Smt. Manjusree Chandra & ors.
Vs. State of W.B. & ors.
With W.P.L.R.T. 780 of 2007 Subrata Dey Chowdhury & ors.
Vs. State of W.B. & ors.
Judgment on: 17.5.2012.
K.J. Sengupta, J:-
In the matter being W.P.S.T. 603 of 2006 the Division Bench of this Court consisting of Hon'ble Acting Chief Justice Bhaskar Bhattacharya and Hon'ble Mr. 2 Justice Kishore Kumar Prasad (as Their Lordships then were) after hearing found that this matter could not be disposed of for the reason as mentioned hereinafter. The W.P.S.T. 603 of 2006 was filed against order dated 8th March 2006 passed by the State Administrative Tribunal in the contempt proceedings being No. CCP 43 of 2004. By the order impugned the learned Tribunal dismissed the contempt proceeding observing that the order passed previously by the learned Tribunal in the original proceedings was not at all implementable. While hearing the said matter the aforesaid Division Bench could not decide it conclusively as a plea was taken that no proceeding against the order dropping of contempt proceedings can be initiated in this Court under Articles 226/227 of the Constitution as it has been held earlier by another Division Bench of this Court in case of Manju Banerjee & Ors. V. Debabrata Pal & Ors. reported in (2006) 1 CAL LT 87 (HC).
The referring Division Bench however could not agree with the proposition of law laid down by the Division Bench in case of Manju Banerjee (supra). Hence Their Lordships have been pleased to direct to place the matter before the then Hon'ble Acting Chief Justice for constituting a larger Bench for deciding following question:
"Whether an application under Articles 226/227 of the Constitution of India against an order refusing to entertain an application for contempt or dropping a proceeding for contempt under the provisions of the Contempt of Courts Act, 1961 passed by a Tribunal constituted under Articles 323A or 323B of the Constitution of India is not maintainable simply because an appeal lies 3 against an order of punishment passed by such Tribunal before the Hon'ble Supreme Court under Section 19 of the Act, and whether High Court is powerless to rectify such an order passed by the Tribunal even if it creates an error in taking such decision resulting injustice and prejudice to the applicant." Consequently this matter has been referred to by the Hon'ble Chief Justice to this Bench. Thereafter other two Division Benches having faced same problem referred two matters being W.B.L.R.T. 780 of 2007 and W.P.S.T.1103 of 2007. The Hon'ble Chief Justice accordingly placed these matters along with above matter for the decision on the above point.
It will appear from the said question there are two limbs - (i) whether an application under Articles 226/227 of the Constitution of India against order as mentioned therein is maintainable or not,
(ii) whether High Court is powerless to rectify such an order as mentioned therein.
Mr. Ashok Kumar Maity, learned Senior Advocate appearing for the petitioner in W.P.L.R.T.780 of 2007 submits that the impugned order dropping the contempt proceedings by the learned Tribunal is assailable in exercise of jurisdiction under Articles 226 and 227 of the Constitution of India in this Hon'ble Court. It would appear from Section 6 of the L.R.T.T. Act read with Section 15 that any order passed by the learned Tribunal is amenable to the scrutiny of the aforesaid provision by the Division Bench of this Court. While drawing our attention to the judgment of the Supreme Court in case of L. Chandra Kumar -vs- Union of India reported in amongst other AIR 1997 SC 1125 4 he contends that power under Articles 226/227 of the Constitution of India of the High Court is part of the basic structure of the Constitution and the same cannot be curtailed by any ordinary legislation. According to him views taken by Division Bench of this Court in case of Manju Banerjee and ors. vs. Debabrata Pal and ors. are not legally correct. Therefore, order dropping of the contempt proceedings despite having found glaring, brazen and patent violation and disobedience of the order of the learned Tribunal is tantamount to unjust failure of exercise of jurisdiction and the High Court in exercise of power under Article 227 has to intervene in the same and to do justice in exercise of power under Article 226 of the Constitution of India. This Court therefore on reading of all the previous decisions of the Supreme Court and those of this Court on this subject should relook the matter to hold that the judgment in Manju Banerjee's case is not good law.
The learned counsels in other writ petitions have supported the argument of Mr. Maity. We do not wish in order to avoid repetition, record their submissions separately.
Mr. Balai Chandra Roy, learned Advocate General while appearing for the State and supporting the order dropping the contempt proceedings contends that this proceedings is different character and colour, and it is between the alleged contemnor and the Court or Tribunal. The person who brings action really plays the role of informant, and his duty is to draw the attention of the learned Tribunal or Court as the case may be, to occurrence of alleged act of contempt, and his/her duty is over the moment he/she informs the Court or Tribunal and 5 he/she has nothing to say about the step to be taken thereafter by the learned Tribunal either dropping or initiating contempt proceedings.
He with the support of a decision of the Supreme Court reported in 2000 (3) SCC 171 contends if the Court feels on the facts and circumstances stated therein the contempt proceeding has to be dropped then it is not reviewable either on appeal or otherwise. To buttress above legal principle he focussed on the following decisions of the Supreme Court also.
1975 (3) SCC 535, 1996 (4) SCC 411, 2005 (10) SCC 207.
He urges placing reliance on authorities viz. the decisions of the Supreme Court reported in 1996 (4) SCC 411, 2006 (5) SCC 399, 1975 (3) SCC 535 and 1998 (3) SCC 26 that unless the Court while exercising contempt jurisdiction records conviction and awards punishment the Appeal Court under Section 19 of the Contempt of Courts Act, 1971 has no jurisdiction to interfere with any order passed by the first Court.
He contends as proposition of law when the Court or Tribunal drops the proceedings against alleged contemnor it must be presumed that It refuses to invoke the contempt jurisdiction. Such refusal cannot be said to be failure of exercise of jurisdiction or wrongful exercise of jurisdiction. The Court or Tribunal has ample power either to drop or to maintain the proceedings and, passing of order in either situation cannot be said to be an improper exercise of jurisdiction and that warrants scrutiny under Articles 226 and 227 of the Constitution of India. He to support this legal contention refers to the decision of L.Chandra Kumar's case reported amongst other in 1997 (3) SCC 261. According to him in 6 Manju Banerjee's case (supra) the Hon'ble Division Bench having surveyed all the previous decisions of the Supreme Court on the subject, has explained the correct position of law, and review of the same is not called for. According to him the decision of the Supreme Court reported in 2006 (5) SCC 399 in this context is also relevant, though express pronouncement of law therein is not there, but it has got the binding effect of obiter dicta. The effect of obiter dicta of Supreme Court on the subordinate Courts has been explained in the decisions of the Supreme Court reported in 2007 (5) SCC 428, 1975 (1) SCC 794 and 1995 (4) SCC 546.
It appears from the records factually in one of the cases referred to this Bench, being No. W.P.S.T.603 of 2006, a valid and subsisting order of the Tribunal was sought to be enforced in contempt jurisdiction. The learned Tribunal after passing several orders purporting to enforce the same, ultimately held that earlier order passed by it was without jurisdiction and is not enforceable, hence the contempt proceedings was dropped. The referring Division Bench could not accept the aforesaid approach of the learned Tribunal and observed that the learned Tribunal in this case exceeded its jurisdiction in declaring that earlier order was passed without jurisdiction though no challenge was made against the said order. According to the Division Bench such course of action while declaring earlier order being without jurisdiction, and dropping the contempt proceeding is legally impermissible. The Bench drawing support of the two Supreme Court judgments reported in AIR 2004 SC 4414 and AIR 2005 SC 3200 observed while exercising jurisdiction of contempt, the Court or Tribunal 7 cannot examine correctness of the earlier decision, non compliance of which is alleged.
Notwithstanding observing and having found as above, Their Lordships could not come to logical conclusion granting appropriate remedy because of the aforesaid question having faced.
In the context as above we feel it expedient to record the views expressed by the Court in Manju Banerjee's case:
"In view of such consistent and authoritative pronouncement of Supreme Court, this Court is unable to take a contrary view in the instant case that the order dropping the contempt proceeding is subject to further scrutiny under Article 226 of the Constitution, even though it is not appealable under Section 19 of the Contempt of Courts Act."
While concluding Their Lordships made reference to a Division Bench Judgtment of Punjab & Harayana High Court reported in 1989 CRLJ 481(R.P. Bhardwaj v. Smt. Kiran Agarwal) which in its turn noted and relied on the Supreme Court Judgment rendered in case of Baradakanta Misra reported in AIR 1974 SC 2255, D.N. Taneja v. Bhajan Lal reported in (1988) 3 SCC 26 and in the case of Purushottamdas Goel v. B.S. Dhillon reported in AIR 1978 SC 1014. In paragraph 35 of the report (CLT) the earlier Division Bench has observed as follows:
"The Supreme Court in the case of L. Chandra Kumar has no where said that orders of the Tribunal holding the contemner guilty and punishing for contempt shall also be subject to judicial scrutiny of the High Court under 8 Articles 226/227 of the Constitution in spite of remedy of statutory appeal provided by Section 19 of the Contempt of Courts Act being available."
The referring Division Bench took the view that in a fit case the High Court can exercise jurisdiction under Articles 226/227 against an order refusing to initiate or dropping contempt proceeding by the Tribunal constituted under Articles 323A and 323B of the Constitution of India. In this State under Articles 323A and 323B four Tribunals namely Central Administrative Tribunal (hereinafter in short C.A.T.), State Administrative Tribunal (hereinafter referred to S.A.T.), Land Reforms and Tenancy Tribunal (hereinafter referred to L.A.T.) and West Bengal Taxation Tribunal (hereinafter referred to T.A.T.) have been set up. The first two Tribunals have been set up under Administrative Tribunal Act, 1985 (hereinafter it referred as Act 1985). Third one has been constituted under the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 whereas fourth has been constituted under the West Bengal Taxation Tribunal Act. The power, jurisdiction and the method of functioning of C.A.T. and S.A.T. are governed and regulated by the provisions of the Act 1985 and the Rules framed thereunder. In this Act there has been no provision for approaching Division Bench of High Court under Articles 226/227 of the Constitution of India before a litigant approaches Supreme Court under Article 136 of the Constitution of India. To say it differently there was no remedy for judicial scrutiny of the order passed by S.A.T. and C.A.T, under the said Act under which they were formed, at the instance of aggrieved party except under Article 136 of the Constitution of India to the Supreme Court and in between there is no forum either appellate or 9 otherwise being constituted. Having felt legal problem if not constitutional crisis and also the hardship of the litigants Seven Judges' Constitution Bench of Supreme Court in the case of L. Chandra Kumar vs. Union of India reported in amongst other AIR 1997 SC 1125 by its pronouncement has provided for intermediary remedy allowing the litigant to approach the High Court under Articles 226/227 for judicial review of the orders passed by this Tribunal. Therefore, the power of judicial review of the High Courts under Articles 226/227 to scrutinize decision of subordinate Tribunal has really been restored whittling down jurisdictional bar by the aforesaid decision. It is appropriate to quote the relevant paragraphs in order to find the source of power of this special jurisdiction of Division Bench of High Court under Articles 226/227 in connection with service matters.
In paragraph 90 (of the report at page 1154) it is enunciated as follows:-
" On the other hand, to hold that all such (emphasis supplied by us) decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Articles 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter."10
In paragraph 91 it is made clear without any doubt as follows:-
"Having regard to both the aforesaid contentions, we hold that all decisions of Tribunals, (emphasis supplied) whether created pursuant to Article 323A or Article 323B of the Constitution, will be subject to the High Court's writ jurisdiction under Articles 226/227 of the Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunals falls."
In paragraph 92 it is again made explicit as follows:-
"We may add here that under existing system, direct appeals have been provided from the decisions of all Tribunals to the Supreme Court under Article 136 of the Constitution. In view of our above -mentioned observations, this situation will also stand modified. In the view that we have taken, no appeal from the decision of a Tribunal will direct lie before the Supreme Court under Article 136 of the Constitution; but instead, the aggrieved party will be entitled to move the High Court under Articles 226/227 of the Constitution and from the decision of the Division Bench of the High Court the aggrieved party could move this Court under Article 136 of the Constitution."
Thus from the reading of the aforesaid paragraphs it is clear that any decision whether entertaining the proceedings under Section 14 or Section 17 of the C.A.T. Act is subject to scrutiny under power of judicial review of this Court under Articles 226 and 227 of the Supreme Court. Obviously above observation 11 of the Supreme Court is not intended to confer power on High Court under Articles 226 and 227 different from that of mentioned in the Constitution. However, it appears that subsequently Three Judges' Bench of the Supreme Court in T. Sudhakar Prasad's case [(2001) 1 SCC 516] the Supreme Court has made a slight distinction between the nature of the proceedings under Section 14 and, that of Section 17 read with Section 19 of the Contempt of Courts Act. We shall be discussing the implication of this judgment little later.
But in case of any proceedings before the L.A.T. & T.A.T. the jurisdiction and power of the High Court has been expressly provided.
In Section 8 of the said L.A.T. it is provided as follows:-
"On and from the date from which jurisdiction, power and authority become exercisable under this Act by the Tribunal, the High Court, except where that Court exercises writ jurisdiction under Articles 226 and 227 of the Constitution by a Division Bench, or any civil court, except the Supreme Court, shall not entertain any proceeding or application or exercise any jurisdiction, power or authority in relation to adjudication or trial of disputes or applications relating to land reforms or any matter connected therewith or incidental thereto or any other matter under any provision of a specified Act."
Then again Section 11 of the said Act provides as follows:-
"Appeal to lie to a Division Bench of High Court. - No appeal or application against any decision (emphasis supplied by us) 12 of the Tribunal in a proceeding shall lie to any court except the Supreme Court and the Division Bench of the High Court exercising writ jurisdiction under Articles 226 and 227 of the Constitution."
It is apparent that aforesaid two provisions bring about different methods for achieving same remedy, viz. provision of appeal, and judicial review under extraordinary power under constitution, and this would be clear from the word "or" used in between the words "no appeal", "an application". According to us, the appeal will lie to the Supreme Court whereas an application for a judicial review under Articles 226/227 will lie to the Division Bench of the High Court. It is jurisprudentially settled that power of appeal and power of judicial review are not the synonymous, as the power of Court in case of an appeal is wider than that of the Court in case of judicial review which is limited.
Appeal court particularly first one, can scrutinize any decision both on fact and law, whereas in case of judicial review the appropriate forum cannot appreciate or scrutinize the factual finding of the inferior forum except of course in case of perversity. According to us, upon in-depth study of the said Section 11, any decision of the Tribunal in a proceeding means and denotes both, whether rendered in exercise of jurisdiction under Section 6 of the said Act or under Section 15 namely the Contempt Proceeding initiated thereunder. It is true that the Section 11 is part of Chapter 2. But the applicability of the provision in our view cannot be restricted to that chapter of the said Act because of phrase: jurisdiction, power and authority become exercisable under this Act by the Tribunal employed in the Section 8 of Act. We think Section 8 is the dominant part of the Act and Section 15 is engulfed by Section 8.
In this context we feel the scope and purport of Section 15 of the said L.A.T. Act should be examined, for which the same is set out as follows:-
"Section 15. Power to punish for contempt of Tribunal.- The Tribunal shall have and shall exercise, the same jurisdiction, power and authority in respect of contempt 13 of the Tribunal as a High Court has and may exercise, and, for this purpose, the provisions of the Contempt of Courts Act, 1971, shall have effect, subject to the modifications that -
(a) the reference therein to a High Court shall be construed as a reference to the Tribunal, and
(b) the reference therein to the Advocate-General in section 15 of the said Act shall be construed as a reference to the Advocate-General of the State."
On reading of the said section we think that by the Act itself the Tribunal unlike the inferior Tribunal or Subordinate Court, has been conferred with the power of contempt, and proceedings in relation thereto shall be regulated with reference to the provision of Contempt of Courts Act 1971 with modification mentioned in the said Act. It cannot be said that provisions of Contempt of Courts Act 1971 has been incorporated, it is adopted by way of reference. For this view we are fortified by the Supreme Court decision rendered in T. Sudhakar Prasad's case (supra) (see paragraph 17 of the report). The Tribunal under the said section can initiate contempt proceeding within the time limit as mentioned in Section 20 of Contempt of Courts Act (hereinafter referred to as C.C.A) and with the same procedure, whether it is a civil or criminal, can impose punishment, and appeal also lies under Section 19 of the C.C.A. to the appropriate appellate forum, here Supreme Court under Article 136 of the Constitution of India.
At the bar the appealability of the order passed in contempt jurisdiction within coverage of Section 19(1) has been widely urged, and also settled by large 14 number of decisions of the Supreme Court. A few of them are cited at the bar for our assistance.
In Baradakanta Mishra's case reported amongst other in (1975) 3 SCC 535 Supreme Court perhaps for the first time after commencement of Contempt of Courts Act 1971 has explained in which cases appeal will lie against order under Section 19 of CCA. In this case in paragraph 7 of above report with regard to appealability has enunciated as follows:-
"Where the Court rejects a motion or a reference and declines to initiate a proceeding for contempt, it refuses to assume or exercise jurisdiction to punish for contempt and such a decision cannot be regarded as a decision in the exercise of its jurisdiction to punish for contempt.
Such a decision would not, therefore, fall within the opening words of Section 19, sub-section (1) and no appeal would lie against it as of right under that provision. This of course does not mean that there is no remedy available where the High Court on an erroneous view of the law or unreasonably and perversely refuses to take action for contempt or a motion or a reference. Though no appeal lies under Section 19, sub-section (1) as of right against such order or decision of the High Court, the Advocate General or any other person who has with the consent in writing of the Advocate General moved the High Court can always come to this Court by a petition for special leave to appeal and the power of this Court to 15 interfere with such order or decision in the exercise of its extraordinary jurisdiction under Article 136 is unfettered. This Court can always in suitable cases set right any order or decision of the High Court refusing to take action for contempt against the alleged contemner, if the larger interests of administration of justice so require."
In the case of D.N. Taneja vs. Bhajan Lal [(1988) 3 SCC 26] the above view of the Baradakanta's case has been reiterated. In paragraph 11 of the report, which we appropriately reproduce hereunder:
"It does not, however, mean that when the High Court erroneously acquits a contemnor guilty of criminal contempt, the petitioner who is interested in maintaining the dignity of the court will be without any remedy. Even though no appeal is maintainable under Section 19(1) of the Act, the petitioner in such a case can move this Court under Article 136 of the Constitution. Therefore, the contention, as advanced on behalf of the appellant, that there would be no remedy against the erroneous or perverse decision of the High Court in not exercising its jurisdiction to punish for contempt, is not correct. But, in such a case there would be no right of appeal under Section 19(1), as there is no exercise of jurisdiction or power by the High Court to punish for contempt. The view which we take finds support from a decision of this Court in Baradakanta Mishra v. Justice Gatikrushna Mishra."16
Thereafter, in case of State of Maharashtra v. Mahboob S. Allibhoy and another reported in (1996) 4 SCC 411 the Supreme Court having followed the aforesaid Baradakanta Mishra's case and D.N. Taneja's case (both supra) in paragraph 5 of the report reiterated the same principle which is again thought to be quoted here:-
"But even if no appeal is maintainable on behalf of the person at whose instance a proceeding for contempt had been initiated and later dropped or whose petition for initiating contempt proceedings has been dismissed, he is not without any remedy. In appropriate cases he can invoke the jurisdiction of this Court under Article 136 of the Constitution and this Court on being satisfied that it was a fit case where proceeding for contempt should have been initiated, can set aside the order passed by the High Court. In suitable cases, this Court has to exercise its jurisdiction under Article 136 of the Constitution in the larger interest of the administration of justice."
The case of Om Prakash Jaiswal v. D.K. Mittal and another reported in [(2000) 3 SCC 171] cited at the bar is of no help in this case except this Court should take note of the observation of the Supreme Court in paragraph 17 of the report to the extent as follows:-
"The jurisdiction to punish for contempt is summary but the consequences are serious. That is why the jurisdiction to initiate proceedings in contempt as also the jurisdiction to punish for contempt in spite of a 17 case of contempt having been made out are both discretionary with the court. Contempt generally and criminal contempt certainly is a matter between the court and the alleged contemner. No one can compel or demand as of right initiation of proceedings for contempt. Certain principles have emerged. A jurisdiction in contempt shall be exercised only on a clear case having been made out. Mere technical contempt may not be taken note of. It is not personal glorification of a Judge in his office but an anxiety to maintain the efficacy of the justice administration system effectively which dictates the conscience of a Judge to move or not to move in contempt jurisdiction.
Often an apology is accepted and the felony condoned if the Judge feels convinced of the genuineness of the apology and the prestige of the court having been restored. Source of initiation of contempt proceedings may be suo motu, on a reference being made by the Advocate General or any other person with the consent in writing of the Advocate General or on reference made by a subordinate court in case of criminal contempt. A private party or a litigant may also invite the attention of the court to such facts as may persuade the court in initiating proceedings for contempt. However, such person filing an application or petition before the court does not become a complainant or petitioner in the proceedings. He is just an informer or relator. His duty ends with the facts being brought to the notice of the court. It is thereafter for the court to act on such information or not to act though the private party or litigant moving the court may at the discretion of the 18 court continue to render its assistance during the course of proceedings. That is why it has been held that an informant does not have a right of filing an appeal under Section 19 of the Act against an order refusing to initiate the contempt proceedings or disposing of the application or petition filed for initiating such proceedings. He cannot be called an aggrieved party."
In this case it appears order dropping of contempt proceedings on erroneous comprehension of law rather erroneous interpretation of the provision of Section 20 of CCA, was set aside and contempt proceeding was restored.
In Midnapore Peoples' Cooperative Bank Ltd. And others v. Chunilal Nanda and others reported in [(2006) 5 SCC 399] the Supreme Court has dealt with the issue of appealability under Section 19 of the CCA in the different context and fact. There same order was passed in contempt jurisdiction as the direction of reinstatement given earlier order was not carried out. So, in that context, it was held that such an order may not be appealable under Section 19 of CCA, but certainly it is a judgment within the meaning of Clause 15 of Letters Patent so regular internal appeal in the Court was held to be maintainable. This judgment of course is not very helpful though in the present dispute, it provides alternative route of appeal other than Section 19 of CCA in the contempt jurisdiction of the High Court.
Thus on careful study of all those decisions quoted above following points have now been settled in our considered opinion:
19
(i) A party in a contempt proceedings whether civil or criminal, does not have any right of appeal as matter of course under Section 19 of CCA, unless the order(s) is (are) passed in connection with punishment for contempt as mentioned in the said section.
(ii) A person in the event proceeding brought by him, is dropped or refused to be initiated for some reason or other, has nothing to say under Contempt of Courts Act 1971 and his duty is over the moment he completes his task informing the court about the violation of the order.
(iii) But the person who has no right of appeal under Section 19 of the Contempt of Court Act can approach the Supreme Court for remedy under Article 136 of the Constitution of India.
The Superior Courts have laid down legal proposition that the proceedings initiated for civil contempt is not merely for punishing the alleged contemnor(s) but also for enforcement of the order as it some times partakes the character of the execution proceeding. [See AIR 1958 Cal 474, (2010) CHN 306].
In view of the aforesaid discussion we think that when one constitutional remedy under Article 136 is held to be available as consistently explained by the Supreme Court, with the parity of reasoning a person's right to approach High Court under Articles 226/227 being another constitutional remedy will be available in appropriate case arising out of contempt proceedings brought before all the above Tribunals. If one remembers legal position during pre L. Chandra Kumar's judgment era it will immediately come in the mind that at that point of time no remedy was available against the order of the Tribunal except by Article 20 136 of the Constitution of India. Later on in Sampath Kumar's case when it was pointed out the provision of Article 32 of the Supreme Court could not be eliminated by any simple legislation certain concession was made by the Government, sequelly it was slightly amended making provision of Article 32 applicable. (See AIR 1987 SC 386, S.P. Sampath Kumar, Petitioner vs. UOI, paragraph 9 of the report).
Ultimately, in the L. Chandra Kumar judgment it has been expressly made clear that provisions of Article 32 and Articles 226/227 are inviolable provision of the Constitution and, remedy under above provision is also basic structure of the Constitution. When Supreme Court observed that litigants in fit case can approach High Court under Articles 226/227 without approaching Supreme Court we see no reason as to why in contempt jurisdiction in absence of any provision excluding its applicability, remedy under Articles 226 and 227 of Constitution should be denied in a fit case except in case where appeal lies under Section 19 of CCA. To explicit this aspect we think provision of Section 19 of the Contempt of Court Act cannot supplant provisions of Articles 226 and 227 of the Constitution of India not only just because in the scheme of above two Acts but also in the judgments of Supreme Court.
We, therefore, respectfully taking note of principle laid down in L. Chandra Kumar case that in the contempt jurisdiction in an appropriate case a person before approaching Supreme Court straight way under Article 136 of Constitution of India can very well approach the concerned High Court under Articles 226/227 seeking remedy against the order dropping contempt 21 proceedings. Thus the argument advanced by the learned Advocate General that provisions of Section 19 of CCA is complete bar to entertaining proceedings under Articles 226/227 of the Constitution of India in the High Court in relation to orders dropping or refusing to initiate contempt proceeding by the Tribunals is legally unacceptable.
There is yet another aspect as rightly argued by Mr. Maity that remedy under Articles 226/227 being one of the basic features of the Constitution cannot be excluded by simple legislation either expressly or by necessary implication. In this connection decisions of the Supreme Court in Keshavananda Bharati's case (AIR 1973 SC 1461), Minerva Mills case (AIR 1980 SC1789), Fertilizer Corporation Kamgar Union vs. Union of India (AIR 1981 SC 344), I.R.Cohelo case (AIR 2007 SC 86) and latest pronouncement reported in 2012 (4) SCC 407 (paras 24, 25, 26) may be referred to. We refer usefully to relevant portion of the judgment of the Supreme Court in L. Chandra Kumar's case (AIR 1997 SC 1125) paragraph 79 of AIR:-
"We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunal within their respective jurisdiction is also part of the basic structure of the constitution............"
We think no argument can be entertained that the judgment of Supreme Court can be read to think provisions of Articles 226 and 227 of Constitution of India is equated with the provision of appeal. We are unable to accept the contention of Learned Advocate General that application under Articles 226 and 22 227 is not maintainable against order of the Tribunal refusing to initiate or drop contempt proceeding, as because the same are not appealable order under Section 19 of the CCA. When any order dropping the contempt is passed for some reason or other overlooking a concrete case of patently deliberate and wilful violation of binding order, the same can be termed as gross failure of exercise of jurisdiction if not cowardice jettisoning of lawful power. In such situation and even in case where the Court or Tribunal passes any order that ought not to have been passed in exercise of contempt jurisdiction, the High Court and the Supreme Court guardians of the Constitution, are duty bound to intervene on the strength of plenary power, and to ensure smooth flow of the stream of justice delivery system.
It appears to us the Division Bench in Manju Banerjee's case was really swayed by casual reading of observation of the Apex Court in T. Sudhakar Rao's case. If one reads T. Sudhakar Rao's case carefully it would emerge that the court was dwelling upon power of contempt of Administrative Tribunals under Section 17 of the Act 1985 in the context of judgment of Andhra Pradesh High Court which held status of the said Tribunals in view of L.Chandra Kumar judgment, has been rendered downgraded so much so they lose the power of contempt. The Apex Court upset the said judgment of the High Court and held that power of contempt of these Tribunal has been preserved by L. Chandra Kumar judgment. In this connection the Apex Court discussed as above. We appositely quote relevant portion of the judgment (portion of para 17 of SCC)- 23
".............Any order or decision of the Tribunal punishing for contempt is appealable under Section 19 of the Act to the Supreme Court only. The Supreme Court in the case of L. Chandra Kumar has nowhere said that the orders of the Tribunal holding the contemner guilty and punishing for contempt shall also be subject to judicial scrutiny of the High Court under Articles 226/227 of the Constitution in spite of remedy of statutory appeal provided by Section 19 of the Contempt of Courts Act being available. The distinction between order passed in the matter under Section 14(1) of the Administrative Tribunal Act, and order passed punishing for contempt under Section 19 of the Contempt of Courts Act read with Section 17 of the Administrative Tribunal Act by the Tribunal is this as against the former there is remedy of appeal statutorily provided, but as against the latter statutory remedy of appeal is provided by Section 19 of the Contempt of Courts Act."
It is clear that focal point was appealability under Section 19 of the CCA in case of conviction and punishment. There was no issue regarding applicability of Articles 226/227 of the Constitution of India in relation to contempt proceedings brought before Tribunal, as there was no occasion indeed to discuss this issue.
It is fundamental in the constitutional jurisprudence that proceeding initiated for exercising power of judicial review is not a proceeding of appeal which is a creature of statute, whereas former is constitutional power of judicial review which is not in any sense akin to power of appeal. The scope of enquiry in exercise of power of judicial review under the constitution is very limited, whereas in case of appeal the same is extensive and elaborate. 24
It also appears that from the Manju Banerjee's case that test of appealability and non-appealability under Section 19 of CCA has been applied in the proceeding under Articles 226 and 227 of the Constitution of India. In other words, the Hon'ble Division Bench in Manju Banerjee's case has seemingly treated the proceeding under Articles 226 and 227 as being appeal proceeding. With respect we are unable to subscribe this approach as it is simply impermissible in view of above discussion.
We, therefore, of the view the earlier Division Bench in the Manju Banerjee's case has been rendered without careful reading of the ratio in T. Sudhakar Prasad's case as well as L. Chandra Kumar's case.
The relevant paragraph quoted above in L. Chandra Kumar's case in cases of C.A.T. and S.A.T. is clear that there is no differentiation of the orders passed by the Tribunal in exercise of jurisdiction under the Act. Logically it covers the orders of the learned Tribunal dropping of or refusing to initiate contempt proceedings. Significantly expressed provision has been made in the LRTT and WBTT that any decision passed by the Tribunal is liable to be scrutinized both under Article 136 of the Constitution of India by way of appeal, and by a proceeding under Articles 226/227 of the Constitution of India.
In view of the above discussion, we are, of the opinion that the ratio decided by the Division Bench in Manju Banerjee's case is not accepted to this 25 Bench as the said ratio runs counter to the constitutional provision as discussed above.
We therefore answer in the affirmative to the first limb of question referred to us. While answering we express opinion that in a fit case a litigant can approach to impugn any decision or order, passed refusing to initiate or dropping contempt proceedings in the same way as he or she is entitled to approach this Court in case other than contempt proceedings. But this remedy is not available as a matter of course, unless it is sought to invoke within the parameter of power of judicial review, unlike appeal, we think illustratively order passed in glaring failure of exercise of jurisdiction or in excess of jurisdiction and, further in clear case of travesty of justice namely in spite of having evidence, order passed consciously dropping contempt proceedings in order to save illegally the alleged contemnor from the rigour of punitive measure can be impugned. Logically we answer the second limb of the question referred in the negative.
This matter with aforesaid discussion and conclusion is disposed of. Now we send the matters back before appropriate Division Benches for dealing with the matter appropriately.
Though on earlier occasion this matter was heard and made C.A.V.; but while finally delivering the judgment, this Court felt and found that there are some gray areas on the point of law, and before delivering judgment, clarification 26 was sought for from the learned counsels and the learned counsels have explained the gray areas.
Accordingly, after hearing the learned counsels today the Court delivered the judgment.
I agree.
(Pinaki Chandra Ghose, J.) (Kalyan Jyoti Sengupta, J.) I agree.
(Biswanath Somadder, J.)