Madras High Court
Major S. Veerasamy vs The Management Of Andhra Special And ... on 18 October, 1996
Equivalent citations: 1997(1)CTC740
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
ORDER K.A. Swami, C.J.
1. This appeal is preferred against the order dated 31.3.1992 passed by the learned single Judge in Contempt Application No. 36 of 1991 The order passed by the learned single Judge reads thus:
In view of the fact that the respondent as directed by this Court, has paid the total sum of Rs. 45,000 to the petitioner, which the petitioner has also acknowledged without prejudice to his right and under protest, the contempt application is dismissed. If the petitioner is aggrieved it is open to him to challenge in any appropriate proceedings with reference to the order of termination and claim consequential relief, if the petitioner is entitled.
2. The question for consideration is as to whether the Letters Patent Appeal preferred under clause 15 of the Letters Patent, against the aforesaid order passed in exercise of the jurisdiction under Contempt of Courts Act. is maintainable?
3. Appeal under Section 19 of the Contempt of Courts Act would lie against the order of punishment and not against the order dismissing the contempt application. Therefore, the Letters Patent Appeal is filed on the ground that the order under appeal amounts to judgment and hence the appeal is maintainable, irrespective of the fact that such appeal could not be filed under Section 19 of the Contempt of Courts Act.
4. It may be pointed out here that the order dismissing the contempt application does not travel beyond the subject matter of the contempt application. The subject matter of the contempt application was the non-implementation of the order dated 10.7.1990 passed in W.P.No. 4535 of 1987. That was a writ petition filed for quashing the order dated 1.8.1986 passed by the Deputy Commissioner of Labour (Appeals) Madras-6 in TNSC Appeal No. 3 of 1982. The learned single Judge quashed the order on the ground that the appellate authority at the appellate stage had no jurisdiction to take fresh evidence to sustain the order of termination dated 1.9.1982. Accordingly, the learned single Judge allowed the writ petition, in the following terms:
The short point that has to be considered in this matter is that whether the original authority has held an enquiry which would enable the appellate authority to take fresh evidence. There is no dispute that the petitioner has appeared before the first respondent in pursuance of show cause notice. It is stated that the petitioner has not submitted his explanation to show cause notice, but that does not mean that appearance itself is for enquiry and that should be considered as enquiry so as to justify the act of the appellate authority to take fresh evidence and to sustain the order of the original authority. It is not in dispute that in pursuance of the show cause notice no enquiry was fixed and that the petitioner was not called upon to attend the enquiry. When no procedure was followed, it is not correct to state that there was an enquiry on 1.9.1982. There is no record whatsoever to substantiate the plea that there was an enquiry in pursuance of the above show cause notice. The petitioner has appeared before the authority in pursuance of the show cause notice and the petitioner was not called upon to appear for enquiry and the petitioner did not appear for the purpose of enquiry, except in pursuance of the show cause notice issued against the petitioner. It is in this context, it connot be held that there was an enquiry on 1.9.1982. That being the position, as per the law settled, the appellate authority has no jurisdiction to take fresh evidence and to sustain the order of termination. There is justification for setting aside the impugned order and consequently the impugned order is set aside and the writ petition is allowed. Rule nisi is made absolute. There will be no order as to costs.
The petitioner was granted the relief consequent to allowing of the writ petition. The petitioner filed Contempt Application No. 36 of 1991. The learned single Judge dismissed the contempt application, without prejudice to his right, keeping it open to him, to challenge in any appropriate proceedings with reference to the order of termination and claim consequential relief, if the petitioner is entitled to. The contempt application was dismissed only on the ground that the respondent had paid a sum of Rs. 45,000 as directed by the court. Therefore it is clear that the contempt application has been decided by the learned single Judge without affecting the other rights of the parties. It is in such a situation, the Division Bench of this Court in Marappan, T. v The Executive Engineer and Ors., 1996 (2) L.W. 117 has held that the Letters Patent Appeal is not maintainable. The facts in that case were that the learned single Judge had recorded a categorical finding that the complainant had failed to prove that the respondents had committed any contempt. The learned single Judge also found that the contempt application was not bona fide and the intention of the complainant was to coerce the officials concerned to make an allotment under the guise that they had disobeyed the order of the Court. Under those circumstance, the learned single Judge awarded costs of Rs. 10,000. While considering the maintainability of the Letters Patent Appeal preferred against the order the Division Bench in the aforesaid Marappan case took note of the observations contained in para 27 of the Full Bench decision in Vidya Charan Shukla v. Tamil Nadu Olympic Association by its General Secretary K. Murugan, 1991 (2) L.W. 295 held as follows:
There is no doubt that the court has got the power to do ex debito justitiae. But. the question is whether such a power could be exercised in a proceeding which is not maintainable before it. Therefore, unless this Letters Patent Appeal is maintainable, the jurisdiction as stated in paragraph 27 of the aforesaid judgment cannot be exercised. The proceeding in question is the one arising out of Contempt of Courts Act. In this proceeding, there is no other matter decided or dealt with, which can be said to fall outside the purview of the Contempt of Courts Act. The learned single Judge has dealt with the question as to whether there has been any violation of the order committed by the respondents as alleged by the complainant. On a consideration of the entire materials. the learned Judge has held that no such violation or disobedience of the order of this Court is established. As already pointed out. the learned Judge has held that the petition itself was not bona fide. It cannot be said that awarding of costs falls outside the purview of contempt proceedings. The application for contempt filed by the complainant can be dismissed even with costs, if the court finds that such application is not bona fide and tenable. Cost is a part of the cause. In K. Karthikeyan v. The State Bank of Mysore rep.by its Chief Manager, Madras 13, L.P.A. No. 112 of 1995 dated 6.4.1995 a Division Bench of this Court has held that Letters Patent Appeal preferred against an order dismissing a Contempt Application was not maintainable under Clause 15 of the Letters Patent. The same position obtained in the instant case. Therefore, we have no hesitation in holding that the Letters Patent Appeal is not maintainable. As such the position of law is that there should be no further continuation of the case by way of appeal, against the order dismissing the application filed for contempt of court holding that no commission of contempt of Court is established. Therefore, in such a case, it if is held that the Letters Patent Appeal is maintainable, it would result in defeating the object contained in Section 19 of the Contempt of Courts Act. Hence we are of the view that this appeal is not maintainable. Accordingly, it is dismissed as not maintainable.
The case on had clearly falls within the aforesaid principle enunicated by the Division Bench of this Court, in Marappan's Case. 1996 (2) L.W. 177
5. However, learned counsel for the appellant placed reliance on the decision of the Full Bench of this Court in Vidya Charan Shukla v. Tamil Nadu Olympic Association 1996 (2) L.W. 177. That was a case in which a certain order was passed and since that order was allegedly to have been violated, a contempt application was filed. A sub-application was filed therein under Section 151 of the Code of Civil Procedure, in which the impugned order therein was passed. The Contempt Appeal No. 5 of 1990 preferred against that order was later converted into L.P.A.No. 123 of 1990 and the matter was referred to a Full Bench. It is therefore, clear that in that case the Letters Patent Appeal was preferred against the order passed in the sub-application filed in the contempt application and not against the order, dismissing the contempt application. Therefore, we see no reason to apply the said decision to the facts of the present case. For the reasons stated above, we hold that this appeal is not maintainable, it is accordingly dismissed. No costs.
6. Subsequent to the dismissal of the Contempt Application No. 36 of 1991, the petitioner has filed a writ petition seeking a mandamus to the respondents in the writ petition to grant the relief flowing from the order passed in W.P.No. 4535 of 1987 on 10.7.1990. The learned single judge has dismissed the writ petition. Therefore, the petitioner herein has filed writ Appeal No. 1665 of 1992. which is also posted before us. That appeal may have to be considered independently and we make it clear that this judgment will not have any effect on the merits of W.A.No. 1665 of 1992.