Gujarat High Court
Shivubha Bhimbha Gohil vs State Of Gujarat Served Upon Principal ... on 29 September, 2020
Author: Sonia Gokani
Bench: Sonia Gokani, N.V.Anjaria
C/MCA/438/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 438 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 7551 of 2011
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SHIVUBHA BHIMBHA GOHIL
Versus
STATE OF GUJARAT SERVED UPON PRINCIPAL SECRETARY
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Appearance:
MR BJ TRIVEDI(921) for the Applicant(s) No. 1
MR JT TRIVEDI(931) for the Applicant(s) No. 1
MS JIGNASA B TRIVEDI(3090) for the Applicant(s) No. 1
for the Opponent(s) No. 1,2,3,4
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 29/09/2020
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. This is an application seeking invocation of jurisdiction of contempt under Article 215 of the Constitution of India and Page 1 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER under the provisions of Contempt of Courts Act, 1971 in the following factual backgrounds.
2. The applicant was working since 1978 as a Chowkidar-
cum-Labourer. By an oral order, without any notice, notice pay or retrenchment compensation, he was terminated from his services on 01.05.2003 whereas Junior employees to him had been continued. There was no departmental proceeding pending against him nor was he given retrenchment as a result of the same. This was challenged as there were serious breaches of Sections 25(G), (H) and (F) of the Industrial Disputes Act, 1947. The challenge was made by way of Reference (LCB) No. 37 of 2008 and after following the due procedure, the Labour Court, Bhavnagar allowed the reference partly granting reinstatement in service to the applicant with 10% back wages with continuity of service and all other consequential benefits flowing from the said judgment and award dated 18.08.2010.
2.1. This was challenged by the opponent - State by way of Special Civil Application No. 7551 of 2011 and this Court vide Page 2 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER its order dated 30.09.2011 dismissed the petition confirming the judgment and order of the trial Court vide its order dated 30.09.2011. Apt would be to reproduce the entire oral order:
-
"Heard learned AGP Mr.Gurjar for the petitionerState and learned Advocate Mr.Ramnandan Singh for the respondent-workman.
2. Learned AGP assailed the award and order dated 18.08.2010 passed in Reference (LCB) No.37 of 2008, whereby the learned Judge of Labour Court, Bhavnagar, was pleased to allow the Reference in part. The learned Judge has ordered reinstatement with 10% back wages with all consequential benefits and continuity of service within 30 days from the date of publication of the award.
3. Despite strenuous efforts, learned AGP could not convince this Court that the award and order requires interference at the hands of this Court. The learned Judge has taken into consideration all relevant aspects of the matter and has discussed the same in detail, coupled with the rulings of this Court as well as of the Hon'ble the Apex Court.
4. Having found no substance, the petition is dismissed. Notice is discharged. No costs."
2.2. This was further challenged by the State in Letters Patent Appeal No. 796 of 2013 and this Court (Coram:
Hon'ble the Chief Justice Mr. Bhaskar Bhattacharya and Mr. J.B.Pardiwala, J.) vide its judgment and order dated Page 3 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER 19.06.2013 on the ground of maintainability in absence of Labour Court as a party, dismissed the appeal. However, it chose not to go into the merits of the matter and held that the dismissal of appeal will not stand in way of the appellant in seeking appropriate remedy before appropriate forum in accordance with law.
2.3 Thereafter, the Misc. Civil Application No. 2462 of 2013 was preferred by the present applicant which came up for hearing on 06.01.2014. Learned advocate Mr. B.J.Trivedi appearing for the applicant and learned Assistant Government Pleader appearing for the respondent - State jointly stated at bar that the order passed by this Court in Special Civil Application No. 7551 of 2011 and confirmed by the Letters Patent Appeal Bench had been complied with and a formal order has been passed on 17.12.2013. The said order of 17.12.2013 was directed to be taken on record and learned advocate Mr. Trivedi did not press the application for contempt on the ground that the cause did not survive.
Accordingly the application was dismissed by the Division Bench (Coram:-Mr. M.R.Shah, J. as His Lordship then was Page 4 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER and Mr.R.P.Dholaria, J.) on the ground that the order has been complied with. At Annexure-E, the order dated 17.12.2013 is also forming part of the record.
2.4. Subsequently, the said office order dated 17.12.2013 was withdrawn by the office order dated 20.07.2016. It is alleged that the office order dated 17.12.2013 was used for wriggling out of the contempt proceedings and therefore, the applicant once again approached this Court by way of Special Civil Application No. 11775 of 2016 which came to be allowed on 26.07.2016.
2.5. This Court on 26.07.2016 noticed that as in case of other employees who were similarly situated persons, the Executive Engineer, Bhavnagar Irrigation Division had withdrawn the earlier order of 17.12.2013 pursuant to which the grievance of the applicant had come to an end. Likewise, in case of the present applicant also the Executive Engineer, Bhavnagar Irrigation Department on 20.07.2016 had cancelled the order and the benefit of pay fixation and other benefits under resolution dated 17.10.1988 previously Page 5 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER granted to the applicant had been restored. Accordingly, the petition came to be disposed of as the factual situation wherein the order impugned was withdrawn by the authority did not survive.
3. The petitioner suffered kidney ailment and underwent the treatment from 27.06.2016, initially at Nadiad and thereafter, at Bhavnagar. When he came to know that he was getting salary of Rs. 18,200/- whereas other similarly situated employees received the benefit of 6th and 7th Pay Commission, he contacted the learned advocate that he had not been given the benefits as had been promised vide order dated 17.12.2013.
4. The applicant, in the second round of contempt proceedings, is before this Court alleging the gross and willful contemptuous conduct of the officers who have not complied with the office order dated 17.12.2013 in letter and spirit and benefit of continuity are not given to him. The difference of salary after deducting the salary he received after he was reinstated in the service was given to him, however, the 7th Page 6 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER Pay Commission benefits have not been given.
5. The prayers sought for in this application are as follows:
"[a] to allow this petition and to arraign the re- spondents for wilful breach of the truncated compli- ance with the Oral Order, passedin Special Civil Application No. 7551 of 2011 on 30-09-2011 [copy at Annexure 'A'], whereby the Award of the learned Labour Court, Bhavnagar in Reference (LCB) No. 37 of 2008, dated 18-08-2010 [copy at Annexure 'B'] was upheld, as confirmed by the Hon'ble Division Bench in Letters Patent Appeal No. 796 of 2013, de- cided on 19-06-2013 [copy at Annexure 'C'], whereby the Award of the learned Labour Court, Bhavnagar in Reference (LCB) No. 37 of 2008, dated 18-08-2010 and deal with them in an exem- plary manner;
[b] to award exemplary costs of the present litiga- tion, interest at market rate on delayed payment of difference of calculation of backwages and salary, after re-calculating the same after placing the peti- tioner in proper pay-scale, as the same has been necessitated by non-compliance thereof;
and [c] to grant such further and other reliefs, as may be deemed to be just and proper."
6. Before this Court proceeds for hearing the matter on Page 7 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER merits, the preliminary issue has been raised by learned Assistant Government Pleader Mr. Hardik Mehta who has urged that so far as the civil contempt is concerned, the limitation period prescribed is of one year. As per Section 20 of the Contempt of Courts Act, no Court is required to initiate any proceedings of contempt either on its own motion or otherwise, after the period of expiry of one year from the date on which the contempt is alleged to have been committed. He fervently urged that the order passed in favour of the applicant was long back in the year 2011 and at the best, it can be said to be in the year 2013 when the Division Bench decided the Letters Patent Appeal No. 796 of 2013 on 19.06.2013. Thereafter also, even if it is considered from 26.07.2016 when Special Civil Application No. 11775 of 2016 was preferred, in no way, it can be said that the present application is filed within one year and therefore, it should not be entertained.
6.1. Learned AGP Mr. Hardik Mehta has relied on the following decisions for substantiating his submissions: -
Page 8 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDERi. Jayraj N. Zala vs. Bhagubhai S. Patel [2006 (3) GLH 669];
ii. Chandulal Jethalal Jaiswal vs. A.U. Vohra [ MCA 89/2013 Decided on 28.11.2003];
iii. Hirpara Manjulaben Gobarbhai vs. Bhikhalal B. Sin-
jaliya [1996 JX(Guj) 197];
iv. Yogesh P. Sukhanandi vs. State of Gujarat [1996 (2) GLR 410];
v. S. Ranganathan vs Sabeetha and Others [Contempt Petition No. 2337/2017, Decided on 18.04.2018]
7. Learned advocate Mr. Brijesh Trivedi has strongly and earnestly objected to this and has urged that the incident of contempt being continuous, such an objection need not be sustained at all. He accepted that the Courts have recognised the fact that the Contempt of Court Act provides that the initiation of proceedings of contempt shall have to be within one year of the committal of the alleged contempt. The Court also in case of Pallav Sheth vs Custodian [2001 Law Suit SC 1043] examined whether there can be any legislation indicating the manner and to the extent that the power can be exercised, if there exists power under Articles 129 and 215 Page 9 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER which can be said to be absolute. He emphasized that the Court has been categorical with providing for the quantum of punishment for what may or may not be regarded or even for initiation of proceedings for contempt, is held not to have abrogated or stultified the contempt jurisdiction under Articles 129 or 215 of the Constitution of India.
7.1. According to him, in the instant case the contempt being continuous where the officer concerned had chosen not to abide by what had been provided in the order and therefore, the contempt has continued for all these years and that would entitle the applicant to approach this Court even after one year. He urged that the preliminary objection raised of limitation not only should be not entertained but the Court should continue the proceedings under Article 215 and issue writ under Article 226 of the Constitution of India.
7.2. Reliance is placed on the following authorities in support of his arguments: -
i. Firm Ganpat Ram Rajkumar vs. Kalu Ram [1989 LawSuit(SC) 451];Page 10 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER
ii. Lopaben Patel vs. Hitendra Rambhai Patel [1999 Law-
Suit(Gju) 262];
iii. Pallav Sheth vs. Custodian [2001 Lawsuit(SC) 1043];
iv. Kanaka Raj Mehta vs. K.V.Shivakumar [1989 Law-
Suit(Kar) 286];
v. State of Bihar Vs Deokaran Nenshi [1972 Law-
Suit(SC) 381];
8. Having thus heard both the sides on the preliminary issue that has been raised as to whether the application for contempt can be permitted beyond the period of one year of the alleged commission of contempt, it is being answered in the instant case in affirmation for the reasons to be followed hereinafter.
8.1. Admittedly, as narrated above, in the instant case, the Reference (LCB) No. 37 of 2008 was decided on 18.08.2010 wherein the applicant has been given reinstatement with 10% back wages and continuity of service with all consequential benefits.
The Special Civil Application No. 7551 of 2011 decided on Page 11 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER 30.09.2011 confirmed the judgment and order of the trial Court and the Letters Patent Appeal No. 796 of 2013 on the ground of maintainability, was not entertained. The dismissal of the LPA has not been challenged by the State.
The Misc. Civil Application No. 2462 of 2013 for contempt under the Contempt of Courts Act for compliance of the binding order was not pressed vide order dated 06.01.2014 as the office order dated 17.12.2013 was passed by the concerned department. It was both learned advocate for the applicant and learned AGP had made a joint statement at bar that the judgment and order of the trial Court confirmed by this Court had been complied with and formal order dated 17.12.2013 in compliance with the judgment and order had been passed. Thus, it is apparent that the order dated 17.12.2013 was the reason for not pressing the application and the application was accordingly disposed of since it did not survive as the order had been already ensured to be complied with except that it needed translation of promised benefits into monetary aspects. However, the said order, as mentioned herein above, was withdrawn by an office order dated 20.07.2016 and it appears that the order dated Page 12 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER 17.12.2013, as rightly urged was only to wriggle out of the contempt proceedings.
9. Therefore, the applicant preferred Special Civil Application No. 11775 of 2016 which was allowed as many of the other employees similarly situated also had faced the very strained perplexity. Vide oral order dated 26.07.2016 the Court disposed of the petition as the subsequent order of 20.07.2016 had been withdrawn. Therefore, it cannot be said to be the judgment of the year 2010 or 2012 or for that matter of 2013. Within one year of the decision of the LPA Bench, the applicant moved this Court by way of contempt application being Misc. Civil Application No. 2462 of 2013 and the withdrawal of the order dated 17.12.2013 was the reason for preferring yet another application being Special Civil Application No. 11775 of 2016 and hence, oral order dated 26.07.2016 completes one year on 26.07.2017.
Admittedly, the present application has not been preferred on or before 26.07.2017 and it is also not being disputed that all the benefits which are flowing from the order dated 17.12.2013 have not been complied with.
Page 13 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER10. Oscillating and intriguing stand taken by the opponent had resulted into preferring the subsequent application being Special Civil Application No. 11775 of 2016 and therefore, by no stretch of imagination, it can be said to be a delay of either nine years or of seven years. The delay ex-facie is of three years as the period of limitation under Section 20 of the Contempt of Courts Act in stricto sensu would expire on 26.07.2017.
11. In this factual background, whether the present application can be entertained when period of limitation of twelve months stares in the face of the Court or is the Court not to be fettered by this statutory period in wake of the powers under Article 215 of the Constitution of India to sub serve the right cause?
12. Taking firstly the decision of Supreme Court rendered in case of Firm Ganpat Ram Rajkumar vs. Kalu Ram [1989 LawSuit(SC) 451], where the question was of order of eviction against a Firm which was confirmed by the Supreme Court Page 14 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER and six months' time was given to the Firm on giving usual undertaking by the Firm but no undertaking was given as directed nor premises were vacated. On the other hand, sons and grandsons of the partners of the Firm obtained temporary injunction against the landlord from ejecting the said plaintiff. The order was not complied with in as much as no undertaking was given although directed by the Apex Court which had ordered not to evict for a period of six months subject to the Firm filing undertaking before the Court. The Court held that the Firm and its partners were bound to comply with the directions of the Supreme Court and the order cannot be defeated by the sons and grandsons of the partners of the Firm by filing the suit for permanent injunction against landlord and the plaint in the said suit must be held to have deliberately not reflected to the Supreme Court passing the order and thereby allowed the Firm to mislead the Court. In this background, the Court examined under Article 20 of the Contempt of Courts Act and held that execution was resisted by the Firm and order of temporary injunction obtained in another suit and failure to give possession amounts to contempt in facts of the case which Page 15 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER was a continuing wrong to which Section 20 would not apply.
The Apex Court held that the limitation of application for contempt is barred by limitation under Section 20 of the said Act which states that no Court shall initiate the proceeding of contempt either on its own motion or otherwise, after the expiry of period of one year from the date on which the contempt is alleged to have been committed. In a case before the Apex Court, the application was filed on or about 03.11.1989. The contempt consisted of the Act of not giving possession by the Courts of order of learned Sub Judge.
Therefore, the application was well within one year. Failure to give possession amounts to contempt in a situation of this nature and is a continuing wrong. Therefore, there is no scope of application under Section 20 of the Act.
"[7] Another point was taken about limitation of this. application under S. 20 of the Act. S. 20 states that no court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed. In this case, the present application was filed on or about 3rd November, 1988 as appears from the affidavit in support of the application. The contempt consisted, inter alia, of the act of not giving the possession by force of the order of the learned Sr. Sub-Judge, Narnaul dated 3rd November, 1988. Therefore, the application was well within the Page 16 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER period of one year. Failure to give possession, if it amounts to a contempt in a situation of this nature is a continuing wrong. There was no scope for application of S. 20 of the Act.
[8] In the aforesaid view of the matter, we direct the learned Sr. Sub-Judge, Narnaul (Haryana) to cause deliver up the vacant possession of the shop situated at Sabji Mandi, Narnaul, Distt. Mohindergarh (Haryana), if necessary with the help of police forthwith. The learned Sr. Sub-Judge, Narnaul is also directed to report compliance immediately. Save as aforesaid, there will be no order on this application, but we direct that the respondents, namely, firm Ganpat Ram Rajkumar, Ganpat Ram, Rajkumar, Sanjay Kumar, Lalu Kumar and Ved Prakash should pay and bear the costs of this application to the applicant, which is quantified and assessed at Rs. 2,500/- (Rupees two thousand five hundred only). Save as aforesaid, there will be no further orders on this application. This order will not prevent or prejudice the' applicants from taking any step for recovery of arrears of rent and mesne profit as they are entitled to in accordance with law."
13. The High Court in case of Lopaben Patel vs. Hitendra Rambhai Patel [1999 LawSuit(Gju) 262], in case of order to pay maintenance was considering the issue of limitation under the Contempt of Courts Act, it held that order of payment of maintenance though can be executed as a decree, it does not mean that omission to pay maintenance would not Page 17 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER amount to civil contempt. The liability to pay maintenance being continuous liability, the Court held that non-payment can amount to commission of contempt.
14. In case of Pallav Sheth vs. Custodian [2001 Lawsuit(SC) 1043], the question posed before the court was whether in view of the provisions of Section 20 of the Contempt of Courts Act, the Special Court was prohibited from taking any action after expiry of period of one year from the date on which the contempt is alleged to have been committed. The Court held that the fraud perpetrated by the appellant was unearthed only on custodian receiving information from Income-tax Department vide its letter of 05.05.1998. Therefore, application for initiating contempt proceeding was filed on 18.06.1998, the Court held that, the application was well within the period prescribed by Section 20 of the Contempt of Courts Act.
"[41] One of the principles underlying the law of limitation is that a litigant must act diligently and not sleep over its rights. In this background, such an interpretation should be placed on Sec. 20 of the Act which does not lead to an anomalous result causing hardship to the party who may have acted with utmost diligence and because of the inaction Page 18 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER on the part of the Court, a contemner cannot be made to suffer. Interpreting the Section in the manner canvassed by Mr. Venugopal would mean that the Court would be rendered powerless to punish even though it may be fully convinced of the blatant nature of the contempt having been committed and the same having been brought to the notice of the Court soon after the committal of the contempt and within the period of one year of the same. Section 20, therefore, has to be construed in a manner which would avoid such an anomaly and hardship both as regards the litigants as also by placing a pointless fetter on the part of the Court to punish for its contempt. An interpretation of Sec. 20, like the one canvassed by the appellant, which would render the constitutional power of the Courts nugatory in taking action for contempt even in cases of gross contempt, successfully hidden for a period of one year by practising fraud by the contemner would render Sec. 20 as liable to be regarded as being in conflict with Art. 129 and/or Art. 215. Such a rigid interpretation must therefore be avoided.
[42] The decision in Om Prakash Jaiswal case (supra) to the effect that initiation of proceedings under Sec. 20 can only be said to have occurred when the Court formed the prima facie opinion that contempt has been committed and issued notice to the contemner to show cause why it should not be punished, is taking too narrow a view of Sec. 20 which does not seem to be warranted and is not only going to cause hardship but would perpetrate injustice. A provision like Sec. 20 has to be interpreted having regard to the realities of the situation. For instance, in a case where a contempt of a subordinate Court is committed, a report is prepared whether on an application to Court or otherwise, and reference made by the subordinate Page 19 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER Court to the High Court. It is only thereafter that a High Court can take further action under Sec. 15. In the process, more often than not, a period of one year elapses. If the interpretation of Sec. 20 put in Om Prakash Jaiswal case (supra), is correct, it would mean that notwithstanding both the subordinate Court and the High Court being prima facie satisfied that contempt has been committed the Hight Court would become powerless to take any action. On the other hand, 'if the filing of an application before the subordinate Court or the High Court, making of a reference by a subordinate Court on its own motion or the filing of an application before an Advocate-General for permission to initiate contempt proceedings is regarded as initiation by the Court for the purposes of Sec. 20, then such an interpretation would not impinge on or stultify the power of the High Court to punish for contempt which power de hors the Contempt of Courts Act, 1971 is enshrined in Art. 215 of the Constitution. Such an interpretation of Sec. 20 would harmonise that Section with the powers of the Courts to punish for contempt which is recognised by the Constitution.
[43] A question arose before a Full Bench of the Punjab and Haryana High Court in the case of Manjit Singh v. Darshan Singh, 1984 Cri.LJ 301 (FB) : 1984 (86) Punj.LR 9 (P&H) (FB) with regard to the application of Sec. 20 to the proceedings of criminal contempt. After coming to the conclusion that on the language of Sec. 20 the date when the time begins to run is fixed from the point on which the criminal contempt is alleged to have been committed the Court had to decide the terminating point or the terminus ad quern for the limitation under Sec. 20 of the Act. Four possibilities which fell for consideration in this regard were : (i) the date on Page 20 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER which the actual notice of contempt is issued by the Court; (ii) the date on which the Advocate-General moves the motion under Sec. 15(l)(a); (iii) the date on which a subordinate Court makes a reference of the criminal contempt under Sec. 15(2) of the Act: and
(iv) the date on which any other person prefers an application to the Advocate-General for his consent under Sec. 15(l)(b) of the Act. On behalf of the State, the contention raised before the Full Bench was that the sole terminus ad quern was the date of, the actual issuance of the notice of criminal contempt by the Court and 'reliance in this behalf was inter alia placed on the abovementioned decision of this Court in Baradakanta Mishra case (supra). The Full Bench, in our opinion, rightly came to the conclusion that the sole question which arose for consideration in Baradakanta Mishra case (supra), related to the interpretation of Sec. 19 of the Act and no question of interpreting or applying Sec. 20 was at all in issue. Following the dictum of Lord Halsbury in Quinn v. Leathern, 1901 AC 495 : 1900-3 All ER 1 :
70 UPC 76 that a case is only an authority on what it actually decides and cannot be quoted for a proposition that may even seem to follow logically therefrom, the Full Bench correctly observed that Baradakanta Mishra case (supra) was no warrant for the proposition that the issuance of a notice of criminal contempt by the High Court is the sole terminus ad quem for determining limitation under Sec. 20 of the Act. The Court then proceeded to observe in Paras 13 and 19 as follows :
"13. Once that is so, one must now proceed to analyse and construe Sec. 20 independently. A plain reading thereof would indicate that the legislature drew a clear line of distinction betwixt proceedings for contempt initiated by the Court on its own motion, and those not so done. Suo motu Page 21 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER action by the High Court is thus clearly a class by itself. Consequently, the statute in express terms refers to these two classes separately, namely, any proceedings for contempt on Court's own motion, and proceedings for contempt initiated 'otherwise'. The use of the word 'otherwise' is significant and indeed provides the clue to the true interpretation of Sec. 20. Therefore, initiation of contempt proceedings otherwise than on Court's own motion would include within its sweep a motion by the Advocate-General, a reference by a subordinate Court to the High Court to take action for contempt and all application before the Advocate-General seeking his consent by any other person under Sec. 15 and lastly in cases of civil contempt the motion by a private litigant directly in the Court. ***
19. To finally conclude, it must be held that the terminus a quo for limitation begins under Sec. 20 of the Act on the date on which the contempt is alleged to have been committed. The terminus ad quem in case of criminal contempt would necessarily vary and be related to the modes of taking cognizance thereof provided for in Sec. 15. In cases, where it is initiated on the Court's own motion it would necessarily be from the issuance of the notice for contempt by the Court. In case of a motion by the Advocate-General under Sec. 15(l)(a), the proceedings would initiate from the date of the filing of such a motion in the High Court. Where any other person moves the AdvocateGeneral for his consent in writing as prescribed in Sec. 15(l)(b), the initiation of proceedings would be with effect from the date of such application. Lastly, in cases of criminal contempt of a subordinate Court on a reference made by it the proceedings must be deemed to be initiated from the date when such reference is made."Page 22 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER
[44] Action for contempt is divisible into two categories, namely, that initiated suo motu by the Court and that instituted otherwise than on the Court's own motion. The mode of initiation in each case would necessarily be different. While in the case of suo motu proceedings, it is the Court itself which must initiate by issuing a notice, in the other cases initiation can only be by a party filing an application, In our opinion, therefore, the proper construction to be placed on Sec. 20 must be that action must be initiated, either by filing of an application or by the Court issuing notice suo motu, within a period of one year from the date on which the contempt is alleged to have been committed.
[45] It was submitted on behalf of the appellant that even if the provisions of Sec. 20 do not bar the High Court from taking action if proceedings are initiated by the filing of an application within a period of one year of the contempt having been committed, in the present case, the period of limitation must be regarded as having expired long before the filing of the application by the Custodian, and therefore, no action on such an application could be taken by the Court.
[46] The record discloses that the Custodian received information of the appellant having committed contempt by taking over benami concerns, transferring funds to these concerns and operating their accounts clandestinely only from a letter dated 5-5-1998 from the Income Tax Authorities. It is soon thereafter that on 18-6-1998, a petition was filed for initiating action in contempt and notice issued by the Special Court on 9-4-1999. Sec. 29(2) of the Limitation Act, 1963 provides that Page 23 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by: the Schedule, the provisions of Sec. 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Secs. 4 to 24 (inclusive) shall apply : insofar as, and to the extent to which, they are not expressly excluded by such special or local law. This Court in the case of Kartick Chandra Das (supra) has held that by virtue of Sec. 29(2) read with Sec. 3 of the Limitation Act, limitation stands prescribed as a special law under Sec. 19 of the Contempt of Courts Act, 1971 and in consequence thereof the provisions of Secs. 4 to 24 of the Limitation Act stand attracted.
[47] Section 17 of the Limitation Act, inter alia, provides that where, in the case of any suit or application for which a period of limitation is prescribed by the Act, the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of the defendant or his agent [Sec. 17(l)(b)] or where any document necessary to establish the right of the plaintiff or the applicant has been fraudulently concealed from him [Sec. 17(l)(d)], the period of limitation shall not begin to run until the plaintiff or the applicant has discovered the fraud or the mistake or could with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production. These provisions embody fundamental principles of justice and equity viz., that a party should not be penalized for failing to adopt legal proceedings Page 24 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER when the facts or material necessary for him to do so have been wilfully concealed from him and also that a party who has acted fraudulently should not gain the benefit of limitation running in his favour by virtue of such fraud.
[48] The provisions of Sec. 17 of the Limitation Act are applicable in the present case. The fraud perpetuated by the appellant was unearthed only on the Custodian receiving information from the Income Tax Department, vide their letter of 5-5-1998. On becoming aware of the fraud, application for initiating contempt proceedings was filed on 18-6- 1998, well within the period of limitation prescribed by Sec. 20. It is on this application that the Special Court by its order of 9-4-1999 directed the application to be treated as a show-cause notice to the appellant to punish him for contempt. In view of the abovestated facts and in the light of the discussion regarding the correct interpretation of Sec. 20 of the Contempt of Courts Act, it follows that the action taken by the Special Court to punish the appellant for contempt was valid. The Special Court has only faulted in being unduly lenient in awarding the sentence. We do not think it is necessary, under the circumstances, to examine the finding of the Special Court that this was a continuing wrong or contempt, and therefore, action for contempt was not barred by Sec. 20."
15. The Karnataka High Court in case of Kanaka Raj Mehta vs. K.V.Shivakumar [1989 LawSuit(Kar) 286], was examining the question of law whether the period of limitation of one year for initiating proceedings for contempt Page 25 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER of court from the date on which the contempt is alleged to have been committed, prescribed under Section 20 of the Contempt of Courts Act, 1971, applies to the exercise of power conferred under Article 215 of the Constitution of India for punishment of contempt of court itself. The alternative submissions were also made before the Court and it held that if there would be a continuing disobedience till the order is complied with, therefore, there is a continuing cause of action and therefore, it held that when the cause of action for taking action for contempt against respondent is continuing cause of action, there would be no question of becoming barred by time, even if Section 20 is applicable.
"[22] Apart from the reasons based on Article 215, there are also other weighty reasons for the rejection of the preliminary objection. In our opinion, the acceptance of contention of the learned Counsel would lead to disastrous results, in that the result would be that the Writs issued by the High Courts under Article 226 of the Constitution, if for any reason are not implemented within a period of one year from the date on which they were required to be implemented the Writs would become futile and will be on paper. It is a matter of common knowledge, that in many cases parties who have secured Writs in their favour wait, patiently for their implementation and once the period of one year is over all such Writs would become futile and the party will be at the mercy of the authorities, as Page 26 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER lodging of complaint to the High Court under Article 215 which Is the only coercive method available for securing obedience or implementation of the Writs would not be available. We asked the learned Counsel for the 1st respondent to state as to what should happen to the Writs issued, in such an event. He had no answer, except stating that perhaps the only remedy is to apply for reissue of the Writ. We fall to see how if a Writ Petition has already been allowed, another Writ Petition is necessary, or can be filed seeking reissue of the Writ. We are clearly of the view that no such situation is envisaged by the Constitution. Once a Writ is issued by the High Court it must run, not run away after one year. Writs are meant to be obeyed. If not the disobeyer should face the proceedings under Article 215. Therefore, we are of the view that the preliminary objection is liable to be rejected also for the reason that its acceptance would lead to the rendering of the Writs issued under Article 226 ineffective and futile after the expiry of one year.
[23] In the result, we answer the question set out in the first paragraph of this order as follows:- The period of limitation of one year for initiating proceedings for contempt of Court from the date on which the contempt is alleged to have been committed prescribed under Section 20 of the Contempt of Courts Act, 1971, does not apply to the exercise of power conferred on this Court under Article 215 of the Constitution of India, to punish for contempt of itself.
[24] The learned Counsel for the complainant and the learned Advocate General also made an alternative submission to the effect that even assuming that Section 20 applies to the exercise of Page 27 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER jurisdiction under Article 215, the action would be barred only in cases in which by the Writ issued the respondent concerned was prohibited from doing an act, like not to demolish a building or not to participate in a meeting and the like, in which cases if the order is contravened disobedience is complete and action would be barred after expiry of one year from the date of disobedience and that similar would be the position in a case in which the action for contempt is based upon any statement published, is initiated after the expiry of one year from the date of publication. But the case would be entirely different where there is a positive direction to do a particular act or to continue to do a particular act in which event, non-compliance with the order means a continuing disobedience and to such a case even if Section 20 is applicable, the cause of action being a continuing one, it does not get barred by time at all. They maintained that the present case was one such. They pointed out that the direction issued to the first respondent was to pay a monthly rent of Rs. 25,000-00 from the date of the lease for the past period and to continue to pay the rent at the same rate in future also and therefore the disobedience of the Writ issued by this Court by the first respondent is continuous and therefore cause of action can be said to arise every moment after the expiry of three months given by this Court to the first respondent to comply with the order.
[25] The learned Counsel for the respondent submitted that on the basis of the allegations made in the complaint, contempt was committed immediately on the expiry of three months time given to pay the arrears and therefore as the complaint was presented on 6-2-1989 it was barred by time, if Section 20 is applicable.Page 28 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER
[26] In our opinion, the alternative contention advanced by the learned Counsel is unexceptionable. The wording of the Writ is very clear. The first respondent was directed to pay monthly rental of Rs. 25,000-00 from the date of lease till the expiry of the lease, i.e., for the whole period of the lease. He was given three months' time to pay the arrears and he was directed to pay rental at the rate of Rs. 25,000-00 per month after the issue of the Writ. As regards the arrears directed to be paid, the disobedience of the first respondent to the Writ issued started after the expiry of three months and would be continuing disobedience till the order is complied with. Similarly, as regards the direction to pay the monthly rent, the first respondent's disobedience to the Writ is a continuing one until he pays the rent at the rate of Rs. 25,000-00 per month. In fact the firstrespondent made an application for modification of the Order dated 8-5-1986 as late as in June 1989 and the application was rejected by us on 27-6-1989. It is not disputed that against the said Order, the first respondent had filed a Special Leave Petition before the Supreme Court and it was also rejected. For these reasons, in addition to the negativing of the preliminary objection raised by the first-respondent, we hold that the cause of action for taking action for contempt against the first respondent is a continuing cause of action and therefore there is no question of its becoming barred by time even If Section 20 is applicable, which of course, as held by us, is not applicable.
[27] In the result, we overrule the preliminary objections raised by the first respondent and hold that the complaint is not barred by time and it should be posted for taking further proceedings."Page 29 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER
16. This Court in case of Jayraj N. Zala vs. Bhagubhai S. Patel [2006 (3) GLH 669], was considering the application preferred under the Contempt of Courts Act, 1971 and under Article 215 of the Constitution of India alleging wilful disobedience of the order and there the Court examined the very issue. The Court held that in light of what has been held by the Apex Court in case of Pallav Sheth (supra), it cannot be said that because application has been initiated under Article 215 of the Constitution of India, Section 20 of the Contempt of Courts Act would not be applicable. The provisions would have been interpreted harmoniously and such an interpretation given by the Apex Court in cases like fraud which has resulted into lapse of limitation and where there is a blatant wilful disobedience of the Court's order, the Court may initiate action under Article 215 of the Constitution of India without having powerless on account of Section 20 of the Act.
"7 In light of what is held-by the Apex Court in the case of Pallav Sheth (supra), it cannot be said that because application is initiated also under Article 215 of the Constitution of India, Sec. 20 of the Contempt of Courts Act would not be applicable. The provisions have to be interpreted harmoniously and as per such an interpretation given by the Apex Page 30 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER Court it is in cases like fraud which has resulted into lapse period of limitation and where it is found that there is blatant wilful disobedience of the Court's order, the Court may initiate action under Art. 215 of the Constitution of India without feeling powerless on account of Sec. 20 of the Act. It is not that High Court has no power to take action in exercise of power under Art. 215 of Constitution of India but ordinarily provisions of the Act would apply and govern the proceedings for contempt. It is only in exceptional circumstances that Court may resort to Art. 215 of Constitution of India. Mere mention of Art. 215 of Constitution of India in cause title of petition would not change the complexion. It is the Court who will consider whether circumstances and facts of the case require exercise of power under Art. 215 of Constitution of India. In the case on hand there are no reasons for this Court to resort to Art. 215 of Constitution of India. Undisputedly, the application is preferred after lapse of one year. As such, this application is hit by limitation and no action can be initiated.
8 We may also observe that the order which is sought to be implemented does not specify any time limit for implementation of the direction. In a very similar situation that arose before the Apex Court in case of Union of India & Ors. V/s. M/s. Oswal Woollen Mills Ltd. and Others reported in AIR 1984 SC 1264, their Lordships observed thus:
["The High Court not having set any limit of time for the disposal of the applications, it was not for the writ petitioners to impose a time limit and demand that their applications should be disposed of forthwith. If the writ petitioners were aggrieved by the failure of the authorities to dispose of their Page 31 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER applications expeditiously, it was open to them to seek a further direction from the Court fixing a limit of time within which the applications were to be disposed of. The authorities could not be said to have committed any contempt of Court, even prima facie, by their mere failure to take action in the matter of the disposal of the applications of the writ petitioners."]"
17. In yet another decision of Chandulal Jethalal Jaiswal vs. A.U. Vohra [ MCA 89/2013 Decided on 28.11.2003], the Division Bench of this Court was considering the aspect of delay under Article 215 of the Constitution of India and Section 20 of the Contempt of Courts Act, it also referred to the decision of Pallav Sheth (supra) and other decisions to hold thus;
"8. It is a settled legal position that in a criminal case all the ingredients of the offence in question have to be established in order to secure the conviction of the accused. The criminal court no doubt has to give due regard to the result of any proceeding under the Act having a bearing on the question in issue and in an appropriate case it may drop the proceedings in the light of an order passed under the Act. It does not however, mean that the result of a proceeding under the Act would be binding on the criminal court. The criminal court has to judge the case independently on the evidence placed before it. Otherwise, there is a danger of a contention being advanced that whenever an assessee or any other person liable under the Act had failed to convince the authorities in the Page 32 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER proceedings under the Act that he has not deliberately made any false statement or that he has not fabricated any material evidence, the conviction of such person should invariably follow in the criminal court (P.Jayappan V. ITO MANU/SC/0100/1984 : [1984]149ITR696(SC) ). This position of law has been reiterated in K.T.M.S.Mohammed and another Vs. Union of India MANU/SC/0349/1992 : 1992CriLJ2781 . Therefore, it is apparent that merely because the High Court in relation to a particular source of income has rendered its opinion in the tax proceedings, that by itself is not sufficient to exonerate an assessee from criminal prosecution, but as stated by the Apex Court in the decision in case of K.T.M.S.Mohammed (supra) it would be one of the major factors to be considered and the resultant finding in the said proceeding will have some bearing in deciding the criminal prosecution in appropriate cases."
18. In case of Hirpara Manjulaben Gobarbhai vs. Bhikhalal B. Sinjaliya [1996 JX(Guj) 197], it was a petition to take action under the Contempt of Courts Act for willful noncompliance of the order passed by the Gujarat Primary Education Tribunal. The order of reinstatement became effective immediately, however, there was no compliance of the order of reinstatement and hence, the court adjudicated as to whether the same amounted to contempt of court, to answer thus;
Page 33 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER"2. Order of reinstatement became effective immediately on the next day of the order. Question in this case is whether non-compliance of the order of reinstatement in service amounts to contempt of court or not ? If the said order of reinstatement is not complied wilfully and without any justifiable cause, it may amount to contempt of court which passed the order, provided further that that court is a court subordinate to High Court as contemplated under sec. 10 of the Contempt of Courts Act. However, question still remains to be considered whether the wilful non-compliance of the order of reinstatement would amount to recurring contempt for every day till it is complied with and thus can it be said to be a continuing breach of the order to constitute contempt of court so as to circumvent the provisions of sec. 20 of the Act. Answer to this, in our opinion, is in negative. Wilful non-compliance, if any, to constitute contempt of court, is the non- compliance of order of reinstatement. The said order of reinstatement is required to be complied with immediately from the next day. If the same is not complied with wilfully and/or without excusable cause, non-compliance may constitute contempt of court. Suppose non-compliance of order to reinstate is an omission which amounts to an act of contempt, can the defaulter be prosecuted for every day's non- compliance ? Will every day prosecution be not barred by principle of autrefois acquit or autrefois convict ? In our opinion, non-reinstatement does not give a fresh cause for every day of breach. If the said order is not complied with, when is it required to be complied with, if not on the next day of the order ? The act of omission if amounts to contempt and he is punished for the same, can he again be dealt with for contempt for non-compliance of that order for subsequent days ? If a person is held guilty of contempt of court for non-compliance of order of reinstatement, then he is punished and is Page 34 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER directed to purge the contempt. The defaulter undergoes punishment but does not comply with direction to purge. Then, what shall be the consequential effect ? Should this process go on for every non-compliance and the defaulter be punished every time and directed to employ ? In our opinion, no. Reinstatement order if not carried out, the employee gets a right to salary and such salary can be recovered by process of law, be even by distress. Principle of service jurisprudence is that a contract of personal service cannot be specifically enforced. Employee would be entitled to salary for the same, as if he is in employment and the same can be recovered by way of execution against person or property or by revenue process, if permissible under law. However, defaulter cannot be prosecuted every day for each day's breach of non-compliance of order of reinstatement, as order of reinstatement does not stand renewed every day. Thus, non-compliance of order of reinstatement is not a continuing wrong. Hence, there is no recurring or continuing breach. Therefore, if one wants to take action under the Contempt of Courts Act for wilful defiance or disobedience of the order to reinstate, then action should be initiated in compliance of sec. 20 of the Contempt of Courts Act. Sec. 20 contemplates action to be initiated within one year. It reads as under:-
"No court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed".
3 In this case, the order complained for non- compliance is of 21.2.91. This petition for taking action under the Contempt of Courts Act is filed on 8.12.92. The court has issued notice on 4.2.93. Even assuming that the court has taken cognizance Page 35 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER on issuance of notice on 4.2.93, then also, it is without jurisdiction inasmuch as the application for taking action under the Contempt of Courts Act for breach of the order of reinstatement is barred by limitation. Thus the action is barred by limitation and, therefore, the court has no jurisdiction to entertain the same.
4 In view of the order of the Primary Education Tribunal, petitioner will be entitled to salary as ordered from the date of the order subject to ordinary law of limitation. We have in the case of Girishchandra R reported in 1996 (1) G.L.H. 523 taken a view that such order is an executable one as per the provisions of the Civil Procedure Code. Supreme Court has held in the case of the Alahar Co-op.Credit Service Society vs. Sham Lal reported at 1995 (3) GLH 550 that contempt is not a substitute for execution. Thus, on this count also, this application is not maintainable.
5 In view of the above, this petition is not maintainable and is liable to be dismissed. It is hereby dismissed. Rule discharged with no order as to costs."
19. In yet another case of Yogesh P. Sukhanandi vs. State of Gujarat [1996 (2) GLR 410], this Court has held not to take cognizance beyond one year.
"Another aspect of the matter on which the applications are liable to be dismissed is that this Court while passing the order on 21-11-1991 has directed the authority to decide the application Page 36 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER preferably on or before December 31, 1991. Both these applications are filed the year 1993. Application No. 200/93 is filed on 20-12-1993 and rule came to be issued on 21-3-1994. Misc. C. A. No. 914/93 was filed on 18-1-1993 and rule came to be issued on 21-3-1994. In views of Sec. 20 of the Contempt of Courts Act, 1971, the Court has no jurisdiction to take cognizance beyond one year of the act or omission committing or constituting contempt of the court. In view of these facts, both these applications are filed beyond the stipulated time. Hence this Court has no jurisdiction to take cognizance of the same."
20. The Madras High Court in case of S. Ranganathan vs Sabeetha and Others [Contempt Petition No. 2337/2017, Decided on 18.04.2018], the question was as to whether the power under the contempt can be exercised beyond the period of limitation prescribed under Section 20 of the Contempt of Courts Act and if yes, under what circumstances.
The Court elaborately considered the constitutional powers given to the High Court to punish for contempt for effective implementation of the order of High Court and it held that the general principles of law that whenever there is a Special Act enacted in respect of limitation, the powers conferred under the Constitution as well as the Special Act to be read cogently and harmoniously and such powers are only with Page 37 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER reference to Section 20 of the Contempt of Courts Act which would not mean that the High Court cannot exercise the powers beyond limitation period of one year but such exercise can be only in exceptional circumstances, and sparingly. In extra ordinary circumstances, the High Court can go beyond the period of one year and exercise the powers under Article 215 of the Constitution of India. The contempt applications if are filed on a routine manner, stating no limitation is applicable in respect of contempt applications are filed before the High Court, such a contempt is not in accordance with the legal principles settled in this regard.
"9. With regard to Contempt of Court, In Morris v. Crown Office, [MANU/UKWA/0017/1970 : (1970) 1 All ER 1079 at 1081 LORD DENNING wrote that "Of all the places where law and order must be maintained, it is here in these Courts. The Courts of Justice must not be deflected or interfered with. Those who strike at it, strike at the very foundations of our society."
"To maintain Law and Order, the Judges have, and must have, power at once to deal with those who offend against it"
"It is a great power - a power instantly to imprison a person without trial - but it is a necessary power"Page 38 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER
10. In the case of Balogh v. St. Albans Crown Court, [MANU/UKWA/0042/1974 : (1975) 1 Q.B. 73 (C.A)], a person named Balogh planned to put a cylinder of a substance called 'laughing gas' as the inlet to the ventilating system and release the gas into the Court, but was caught. In the Court of first instance, Balogh grossly insulted a Judge after six months of sentence was imposed. LORD DENNING observed that 'But I find nothing to tell us what is meant by "
committed in the face of the court". It has never been defined. Its meaning is, I think, to be ascertained from the practice of the judges over the centuries. It was never confined to conduct which a judge saw with his own eyes. It covered all contempts for which a judge of his own motion could punish a man on the spot. So "contempt in the face of the court" is the same thing as "contempt which the court can punish of its own motion". It really means "contempt in the cognizance of the court".
He further reviewed a number of cases and gave instances of contempt in the face of court, throwing a missile at the judge, disrupting a trial, refusing to answer a proper question, threatening the witness away from the Court house after giving evidence, an employer threatening an employee if he responded to a summons to attend court for jury duty.
11. In the famous case of R v. Metropolitan Police Commissioner [(1968) 2 QB 150 : (1968) 2 ER 319)], a person Criticised the Court of Appeal in an Article in a magazine. The criticism was in bad taste, wrong and based on erroneous facts. LORD DENNING observed that Page 39 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER "Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decision is erroneous whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that from the nature of our office, we cannot reply to this criticism. We cannot enter into public controversy. Still less into political controversy. We must rely on our own conduct itself to be its own vindication."
12. There are only two issues which are material, one is the date of commission of alleged contempt and the other is the actual initiation of proceedings for contempt. In Golcha Advertising Agency v. The State of Maharashtra [(1990) 2 Bom CR 262 (Bom) at pp. 263, 265], the Court observed that no intervening event or order stops the running of time specified in this section. Section 20 of the Contempt of Courts Act of 1971 talks about the limitation period within which the actions have to be taken. It enumerates that the limitation period is a period of one year from the date on which the contempt is alleged to have been committed.
13. Article 215 of the Constitution of India empowers every High Court to punish contempt of Page 40 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER Court subordinate to it, but Contempt of Courts Act lays down how that power is to be exercised. Article 215 and provisions of the Contempt of Courts Act have to be read together. The Hon'ble Apex Court has emphasized that Section 20 applies to civil and criminal contempts and would also apply to the contempt committed on the face of High Court or the Supreme Court or even Subordinate Courts. Where there is a limitation for initiation of proceedings of contempt under Section 20 of the Act, the Rules of Code provide that no notice shall be issued if more than one year has lapsed from the alleged act of contempt.
14. In the case of State of Kerala v. P.K. Ramchandranan (Civil Appeal No. 2485 of 2005) (Ker.). the Court observed that the Court has no power to extend the period of limitation as it would otherwise defeat the provision of law. The natural corollary of this would be that after the period, as prescribed by Section 20 of the Act, lapses, the jurisdiction of the Court automatically evaporates and Court loses jurisdiction under the said Act.
15. In the case of Ruksana Begum, Km v. B.P. Varma, 1990 AII L.J. 341, which is held that the contempt proceedings having been initiated after a lapse of more than one year from that date were held as barred under Section 20 where suo motu contempt was registered after nearly 4-1/2 years, after violation of undertaking given to Court, held not maintainable even in the case of O.P. Sreedhara Menon v. K. Amarnath Shetty, MANU/KE/0507/2012 : 2013 Cr.L.J. 1684.
16. In the case of Dineshbhai A. Parekh v. Kripalu Page 41 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER Co-operative Housing Society, Nagarvel Ahmedabad, MANU/GJ/0147/1980 : AIR 1980 Guj. 19 at p.199, the Court held that the pendency of a contempt petition for more than one year after the alleged act of contempt and no notice having been issued even thereafter would not enable this Court to continue to keep the petition pending indefinitely. The jurisdiction of the Court is that the Court shall not initiate any proceedings for contempt either on its own motion or otherwise, after the expiration of a period of one year from the date on which contempt is alleged to have been committed.
17. The Supreme Court of India held in this regard that the proper construction to be placed on Section 20 must be that the action initiated either by filing of an application or by the Court issuing notice suo moto, within a period of one year from the date on which the contempt is alleged to have been committed. No doubt, the High Court is not powerless even when the period of one year is expired from the date of alleged violation of Court's order, the Courts can exercise its inherent power under Article 215 of the Constitution of India. However, such powers ought to be exercised only on exceptional circumstances, more so to mitigate the gross in justice if any occurred and the inherent powers ought to be exercised sparingly and not in a routine manner. The High Courts cannot make the limitation period prescribed under Section 20 of the Contempt Courts Act illusory. The limitation prescribed under Section 20 is to be scrupulously followed in all cases and the provisions as to be read harmoniously along with Article 215 of the Constitution of India. One step further this Court has to emphasize that the Contempt of Courts Act is a Special Act and the same will prevail in respect of Page 42 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER filing of the contempt application under the very same Act. The general powers conferred under the Constitution has to be read along with the provisions of the contempt of Courts Act. The Act is to be construed as the procedure for initiating contempt contemplated, by virtue of the powers conferred under the constitution.
18. The purpose of law of contempt is to protect the machinery of justice and the interests of the public in order to protect these dual interests, unwarranted interference with administration of justice must be prevented. The power to punish for contempt is conferred on Courts for two reasons. Firstly, that the Courts may be armed with the power to enforce their orders, Secondly, they may be able to punish obstruction to the administration of justice. To ensure these objective, there are also constitutional provisions dealing with contempt of Courts, apart from Contempt of Courts Act. Under Article 215 of the Constitution of India a Court of record is a Court, the records of which are admitted to be evidentiary value and not to be questioned when produced before any Court. Such a Court enjoys a power to punish for contempt as its inherent jurisdiction. The impression created by the Court is that even if Article 129 and 215 were not there in Constitution the contempt powers of Courts of record would have been preserved. However the High Courts have to exercise his powers keeping in mind Section 20 of Contempt of Courts Act.
19. In the case of Pallav Seth v. Custodian and Others [MANU/SC/0437/2001 : (2001) 7 SCC 549], the Hon'ble Supreme Court held as follows:-
"Firstly, a contempt proceedings can be initiated by two modes, either the Court can initiate the Page 43 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER contempt proceedings on its own (suo moto), or otherwise. The word otherwise has been interpreted to mean that the initiation would have to be done by a party by filing an application. Therefore, the Supreme Court was of the opinion that the proper construction to be placed on Section
20 of the Act must be that action must be initiated, either by filing of an application, or by a Court issuing notice suo moto within a period of one year from the date on which the contempt is alleged to have been committed.
Secondly, the Hon'ble Supreme Court did not find that Section 20 of the Act either stultifies or abrogates the power bestowed upon the Apex Court under Article 129 or Article 215 of the Constitution of India.
Thirdly, since Section 20 of the Act is a special law prescribing a period of limitation, different from the limitation prescribed by the Limitation Act, which happens to be the general law, the special law would naturally override and take precedent over the Limitation Act- the general law. Thus while exercising the power of contempt under Article 215 of the Constitution of India it has to be exercised in consonance with Section 20 of the Act.
Fourthly, the word to initiate a proceeding would mean the filing of a petition, The said word does not mean the taking of cognizance by a Court, as was held in the case of Om Prakash Jaiswal v. D.K. Mittal [MANU/SC/0118/2000 : (2000) 3 SCC 171]"
20. Thus, obviously the power bestowed upon this Court under Article 215 of the Constitution of India would have to be exercised, while keeping in mind the limitation prescribed by Section 20 of the Page 44 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER Contempt of Courts Act. Therefore, the contention raised by the learned counsel with regard to lack of applicability of the limitation upon a power bestowed by Article 215 of the Constitution of India is unacceptable.
21. In the case of [Hiralal Dixit v. State of U.P., MANU/SC/0036/1954 : AIR 1954 SC 743] it is held that power to be sparingly exercised but where public interest demands it, the Court will not shrink from exercising it.
22. In the case of [Subrata Kundu v. Kshiti Goswami, MANU/WB/0348/2009 : AIR 2010 Cal 44] it is held that High Court has jurisdiction under Article 215 of the Constitution of India to initiate contempt proceedings but this has to be exercised in accordance with the procedure prescribed by law. The Supreme Court in the said case by necessary implication held that the said Act 1971 is the procedure prescribed by law and the provision for limitation in the said Act has to be made applicable.
23. In the case of A. Paul Pandi v. A. Karthik [Contempt Petition No. 3147 of 2014 Dated
21.11.2014] this Court held that when there is a specific law enacted by the legislature, namely the Contempt of Court Act, 1971, which contemplates a period of limitation under Section 20 of the Act, the said provisions should be read harmoniously and proceedings under the contempt of Courts Act, 1971 should be initiated within a period of one year of alleged contempt, as envisaged in Section 20 of the Act. In the said case, the learned Judge of this Court lay down the said principles based on the ratio lay down by the Hon'ble Supreme Court of India in the Page 45 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER case of Pallav Sheth v. Custodian, cited Supra.
24. In the Hon'ble Supreme Court in the case of MAHESHWAR PERI v. HIGH COURT OF JUDICATURE AT ALLAHABAD thro. Registrar General, reported in MANU/SC/0746/2016 : 2016 (6) scale 425, dealt with the Contempt of Courts Act 1971, His Lordship Justice Kurian Joseph J., while speaking for the Bench held as follows:
"8. The main contention advanced by the learned counsel for the appellants is that the High Court, having initiated action only after four years of the alleged contempt, the whole proceedings are barred by Section 20 of the contempt of Courts Act, 1971 (herein after referred to as 'the Act') which has prescribed the period of limitation of one year for initiating any proceedings of contempt, be it suo motu or otherwise. Section 20 of the Act reads as follows: "
20. Limitation for actions for contempt.- No court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed."
9. Learned counsel appearing for the High Court, however contends that being an action initiated by the High Court under Article 215 of the Constitution of India and since the genesis of the initiation of the contempt is the application dated 18.11.2008 field by Mr. Manoj Kumar Srivastava and Mr. Veer Singh, Advocates, and since the High Court had considered the application within one year and had Page 46 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER taken action by issuing notice, though after six years, it is within time. 10. Our attention is invited to a three Judge Bench decision of this Court in Pallav Sheth v. Custodian and Others and particular to paragraph -39 and 40. Paragraphs 39 and 40 reads as follows:
"39. In the case of criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate -General or the Law Officer of the Central Government in the case of a Union Territory. This reference or motion can conceivably commence on an application being field by a person whereupon the subordinate court or the Advocate-General if it is so satisfied may refer the matter to the High Court. Proceedings for civil contempt normally commence with a person aggrieved bringing to the notice of the Court the wilful disobedience of any Judgement, decree, order etc. which could amount to the commission of the offence. The attention of the Court is drawn to such a contempt being committed only by a person filing an application in that behalf. In other words, unless a Court was to take a suo motu action, the proceeding under the Contempt of Courts Act, 1971 would normally commence with the filing of an application drawing the attention of the Court to the contempt having been committed. When the judicial procedure requires an application being filed either before the court or consent being sought by a person from the Advocate -General or a law Officer, it must logically follow that proceeding for contempt are initiated when the applications are made.
40. In other words the beginning of the action prescribed for taking cognizance of criminal Page 47 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER contempt under Section 15 would be initiating the proceedings for contempt and the subsequent action taken thereon of refusal or issuance of a notice or punishment thereafter are only steps following or succeeding such initiation. Similarly, in the case of a civil contempt, filing of an application drawing the attention of the court is necessary for further steps to be taken under the Contempt of Courts Act, 1971."
11. We are afraid, the contentions advanced by the learned Counsel for the appellants cannot be appreciated. Be it an action initiated for contempt under Article 129 of the Constitution of India by the Supreme Court or under Article 215 of the Constitution of India by the High Court, it is now settled law that the prosecution procedure should be in consonance with the Act, as held by this Court is Pallav Sheth case (supra)
12. And thus, the dispute boils down to the question of limitation only.
13. Under the Act, the action for contempt is taken by only two courts, either the Supreme Court or the High Court. The procedure is prescribed under Section 15 of the Act, which reads as follows:
"15. Cognizance of criminal contempt in other cases.-
(1) In the case of a criminal contempt, other than a contempt referred to in section 14, the Supreme Court or the High Court may take action on its own Page 48 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER motion or on a motion made by-
(a) the Advocate-General, or
(b) any other person, with the consent in writing to (sic of) the Advocate - General, or
(c) in relation to the High Court for the Union territory of Delhi, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf, or any other person, with the consent in writing of such Law Officer. (2). In the case of any criminal contempt of a subordinate Court, the High Court may take action on a reference made to it by subordinate Court or on a mote made by the Advocate-General or, in relation to a Union territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf. (3). Every motion or reference made under this section shall specify the contempt of which the person charged is alleged to be guilty. Explanation
- In this section, the expression "Advocate -General"
means-
(a) in relation to the Supreme Court, the Attorney- General or the Solicitor General;
(b) in relation to the High Court, the Advocate - General of the State or any of the States for which the High Court has been established;
(c) in relation to the Court of a Judicial Commissioner, such law officer as the Central Government may, by notification in the Official Gazette, specify in this behalf."
14. Criminal Contempt of Court subordinate to High Court can be initiated either suo motu or on a motion made by the Advocate-General. The suo motu action is set in motion on a Reference made to it by the subordinate court, in Pallav Sheth case (supra), it Page 49 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER has been held that the reference is the starting point of the process of initiation of the action for contempt. That is why in paragraph39, which we have extracted above, it has been clearly held that...
"unless a Court was to take suo motu action, the proceeding under The Contempt of Courts Act, 19671 would normally commence with the filing of an application drawing the attention of the court to the contempt having been committed. "The application is the motion provided under Section 15 of The Contempt of Courts Act, 1971. Such a motion, by any person other than Advocate-General, can be made only with the consent in writing of the Advocate-General. In other words, any other application made by a person without the consent of the Advocate-General, is not an application in the eyes of law'
15. This aspect has been succinctly discussed and subtly distinguished in paragraph-44 of the Pallav Sheth case (supra).To quote paragraph -44:
"44. Action for contempt is divisible into two categories, namely, that initiated suo motu by the Court and that instituted otherwise than on the Court's own motion. The mode of initiation in each case would necessarily be different. While in the case of suo motu proceedings, it is the court itself which must initiate by issuing a notice, in the other cases initiation can only be by a partly filing an application, In our opinion, therefore, the proper construction to be placed on Section 20 must be that action must be initiated, either by filing of an application or by the court issuing notice suo motu, within a period of one year form the date on which the contempt is alleged to have been committed."
25. The Hon'ble Supreme Court of India in the case of Prakash Kakubhai Rangwala v. Nyayalaya Page 50 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER Karmachari Anne Nayayadish Hitkari Sangh and Another, reported in MANU/SC/0574/2011 : (2011) 14 Supreme Court Cases 762 held as follows :
7. These facts would, therefore, indicate and establish that the decision of initiation of proceedings under the Contempt of Courts Act, 1971 was taken on 3.12.2009 when notice was issued and, therefore, it is established from the records that the aforesaid suo motu issuance of notice for the offence of contempt on 3.12.2009 is within the period of limitation of one year.
8. Even otherwise, we may appropriately refer to the decision of this Court in Pallav Sheth v.
Custodian wherein this Court, after referring to a decision in Om Prakash Jaiswal case held that :
(SCC p. 570, para 42) "42. .... If the interpretation of Section 20 put in Om Prakash Jaiswal case is correct, it would mean that notwithstanding both the subordinate court and the High Court being prima facie satisfied that contempt has been committed the High Court would become powerless to take any action. On the other hand, if the filing of an application before the subordinate court or the High Court, making of a reference by a subordinate court on its own motion or the filing of an application before an Advocate General for permission to initiate contempt proceedings is regarded as initiation by the court for the purpose of Section 20, then such an interpretation would not impinge on or stultify the power of the High Court to punish for contempt which power, dehors the Contempt of Courts Act, 1971 is enshrined in Article 215 of the Constitution."
It was also held that such an interpretation of Page 51 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER Section 20 would harmonise that section with the powers of the courts to punish for contempt which is recognised by the Constitution."
26. First of all, the facts of the above said case is that the suo motu issuance of notice for the offence of contempt was initiated within a period of limitation of one year. Secondly, the Hon'ble Supreme Court referred the decision in the case of Pallav Seth v. Custodian and Others [MANU/SC/0437/2001 : (2001) 7 SCC 549].
wherein the Hon'ble Supreme Court has elaborately discussed all these circumstances. The ultimate interpretation would be that the limitation prescribed under Section 20 has to be read harmoniously along with Article 215 of the Constitution of India.
27. The High Court's cannot invoke the powers under Article 215 of the Constitution of India, in all the cases by entertaining the contempt application beyond the period of one year, so as to dilute or eradicate the law prescribed under Section 20 of the Contempt of Courts Act, 1971. All contempt applications ought to be filed within the period of limitation prescribed under Section 20 of the Contempt of Courts Act, 1971. The High Court on exceptional circumstances, on arriving a conclusion that a gross injustice to the society or the case is of public importance, then the inherent powers provided under Article 215 of the Constitution of India, can be exercised without reference to Section 20 of the Contempt of Courts Act. A litigant may come out with an interpretation that an injustice is caused to all the orders or judgements passed by the High Courts. Such a general proposition, as advanced by the learned counsel appearing for the Page 52 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER petitioner deserves no merit consideration. No doubt, the litigants approach the Court to get justice, that does not mean that all the contempt applications have to be entertained after a period of one year prescribed under Section 20 of the Contempt of Courts Act, 1971. Generalisation in this regard can never be encouraged. What exactly the circumstances warranting interference under Article 215 of the Constitution of India has to be decided judiciously and applying the peculiar facts and circumstances prevailing in each and every case. General application in this regard is certainly impermissible and Courts have to interpret these provisions in a pragmatic way than in a general manner. In other words, the principles of constructive interpretation is to be adopted while interpreting the period of limitation under Section 20 of the Contempt of Courts Act as well as Article 215 of the Constitution of India. Thus, this Court is not inclined to consider the arguments advanced by the learned counsel appearing for the petitioner by citing the above judgement of the Hon'ble Supreme Court."
21. The ratio thus culls out is that the powers of the High Court under Article 215 of the Constitution of India can not get stultified or abrogated merely because there is a provision of Section 20 of the Contempt of Courts Act. At the same time, the High Court cannot entertain the contempt applications beyond the period of one year so as to dilute the provisions of law prescribed under Section 20 of the Contempt of Courts Act. Only in exceptional circumstances, to mitigate gross Page 53 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER injustice to the party, to the society or in case of public importance or in case of continuous contempt, the Court can sparingly exercise such powers. All contempt applications, if are entertained after a period of one year, it would render Section 20 of the Contempt of Courts Act nugatory. The Court needs to examine the peculiar facts and circumstances prevalent in each case and interpret the provision in a pragmatic manner rather than in general way.
22. Viewed from this, this Court is of the opinion that this is one matter where the Court needs to exercise the powers even beyond the period of one year and entertain this application rejecting preliminary objections raised by the Opponent State. Not only there is a continuous breach for not having complied with its own order which had been passed and specified in the application of contempt moved firstly in the year 2014 which was well within one year, the cancellation of such order soon after the withdrawal of the said application of contempt, in case of the issuance of the order dated 17.12.2013 assuming the compliance on the part of the petitioner, thus filing of the subsequent petition by the Page 54 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020 C/MCA/438/2020 ORDER very petitioner and withdrawal of the subsequent order which nullified the effect of the order dated 17.12.2013 and thereafter, noncompliance of the judgment and order of the year 2010 are glaring and gross injustice which cannot be overlooked by the Court which has wide powers of initiating the proceedings of contempt for noncompliance of its own order.
23. As the preliminary objections are rejected, let the matter be proceeded with, expeditiously. Matter to be listed for further hearing on merits, on 13th October, 2020.
(SONIA GOKANI, J) (N.V.ANJARIA, J) MISHRA AMIT V./Bhoomi Page 55 of 55 Downloaded on : Tue Oct 27 21:30:20 IST 2020