Andhra HC (Pre-Telangana)
Government Of Andhra Pradesh vs K. Anantha Reddy And Ors. on 17 August, 1998
Equivalent citations: 1998(5)ALD285, 1998(4)ALT698, 1998CRILJ4279A
Author: B. Subhashan Reddy
Bench: B. Subhashan Reddy, Vaman Rao
ORDER B. Subhashan Reddy, J.
1. A piquant situation has arisen regarding continual of power of contempt in the Administrative Tribunal constituted under the Administrative Tribunals Act, 1985 in the aftermath of the judgment of the Supreme Court in L. Chandra Kumar v. Union of India, .
2. By Section 46 of Constitution (42nd Amendment) Act, 1976, Part XIV-A was inserted in the Constitution consisting of Articles 323-A and B. While Article 323-A enables the Parliament to set up Administrative Tribunals to deal with service matters, Article 323-B provides power to the appropriate Legislatures for formation of Tribunals for other matters stated therein. We are here not concerned about Article 323-B.
3. Article 323-A of Constitution reads:
323A. Administrative Tribunals :--(1) Parliament may, by law, provide for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect of recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any Corporation owned or controlled by the Government.
(2) A law may under clause (1) may,
(a) provide for the establishment of an Administrative Tribunal for the Union and a separate Administrative Tribunal for each State or for two or more States;
(b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said Tribunals;
(c) provide for the procedure (including provisions as to limitation and rules of evidence) to be followed by the said Tribunals;
(d) exclude the jurisdiction of all Courts, except, the jurisdiction of the Supreme Court under Article 136, with respect to the disputes or complaints referred to in clause (1);
(e) provide for the transfer to each such Administrative Tribunal of any cases pending before any Court or other authority immediately before the establishment of such Tribunal as would have been within the jurisdiction of such Tribunal if the causes of action on which such suits or proceedings arc based had arisen after such establishment;
(f) repeal or amend any order made by the President under clause (3) of Article 371 D;
(g) contain such supplemental, incidental and consequential provisions (including provisions as to fees) as Parliament may deem necessary for the effective functioning of, and for the speedy disposal of cases by and the enforcement of the orders of, such Tribunals.
(3) The provisions of this article shall have effect notwithstanding any in any other provision of this Constitution or in any other law for the time being in force".
4. In exercise of the powers under Article 323(1), the Parliament had enacted the Administrative Tribunals Act, 1985 enabling to set-up Administrative Tribunals-Central Tribunal to deal in service matters relating to Central Government and other allied authorities and State Tribunals to deal with service matters relating to the services of the State and allied authorities. The Andhra Pradesh Administrative Tribunal is the State Tribunal, whose judgments are subject-matter in these cases touching upon the existence or otherwise of contempt jurisdiction of the said Tribunal.
5. The State of Andhra Pradesh has filed the Writ Petition No.34841 of 1998 impugning the action of A.P. Administrative Tribunal in taking cognizance of the contempt case filed in C.A.No.562 of 1996 in O.A.No.35574 of 1991. The Contempt Case No. 1054 of 1998 has been straight-away lodged before this Court, without invoking the jurisdiction of the Tribunal under Section 17 of the Administrative Tribunals Act, complaining of non-compliance of the order dated 31-10-1997 passed by the Tribunal in O.A.No.6663 of 1997. The contentions raised by both the petitioners Writ and Contempt are similar to the effect that in view of the dicta laid down by the Supreme Court in Chandra Kumar's case (supra), the Contempt jurisdiction slipped out of the domain of Administrative Tribunal and stood restored to the High Court.
6. While Mr. V. Venkalaratnanaiah the learned Advocate-General has appeared for the State in the Writ Petition, Mr. M.R.K. Choudary the learned senior Counsel has pleaded for the petitioner in the Contempt case. Both the learned Counsel contend that as adjudication in service matters was taken out of the purview of the High Court in view of Section 28 of the Administrative Tribunals Act, contempt jurisdiction, relating to service matters was entrusted to the Tribunal and as the Supreme Court has struck down the said provision and also its genesis contained in the Constitutional provision-Article 323A(2)(d) restoring the jurisdiction: of the High Court under Articles 226 and, 227 of Constitution to deal with, the service matters by way of judicial review/judicial superintendence, ipso facto, the contempt jurisdiction of the Tribunal has ceased to have effect and that Section 17 of the Administrive Tribunals Act had become otiose and inoperative and that contempt power can now only be exercised by the High Court under Article 215 of the Constitution read with the Contempt of Courts, ACT, 1971. In the writ petition Mr. K. Anantha Reddy is the respondent party-in-person and Mr. C. Nagarjuna Reddy, the learned Counsel was appealed as amicus curiae.
7. The learned amicuscuriae submits that Section 17 of the Administrative Tribunals Act owes its origin to and derives its strength from Article 323-A(2) (g) of the Constitution of India and because of the said Constitutional sanction, the above statuory provision still operates and did not become otiose or inoperative, that Power of Administrative Tribunals to invoke contempt jurisdiction still exists de hors Section 28 of the Act and notwithstanding the judgment of the Supreme Court in L. Chandra Kumar v. Union of India (supra). His further argument is that while the power to contempt inhers the Supreme Court and High Courts under Articles 129 and 215 respectively, as Courts of Record, Parliament is not precluded from making law vesting other Courts/Tribunals with power to issue contempt to enable them to function as effective adjudicatory for a and that if Section 17 of the Act is made inoperative, the efficacy of legal remedy provided by the Tribunal gets whittled down and becomes illusory. He lastly submists that the contempt power still subsists in the Tribunals constituted under Administrative Tribunals Act, 1985 and the decisions rendered by the Tribunals in exercise of their contempt jurisdiction can be subjected to serutiny by the Division Benches of the High Courts, in the same way as the decision rendered by the Tribunals in the main cases.
8. The Administrative Tribinals were set-up as substitutes for the High Courts and not as supplemental. If it is supplemental no Constitutional amendment was necessary and in exercise of ordinary legislative power, Administrative Tribinals could be set-up playing the role of supplemental, judicial authority, keeping intact the power of the issuance of Writs and judicial superintendence vested in the High Courts under Articles 226 and 227 of the Constitution. But the Parliament had excluded the jurisdiction of the High Court and vested the same in the Administrative Tribunals and for that purpose had invoked the power of Constitutional amendment mentioned above.
9. As the High Courts were denuded of the powers of judicial review in service matter, the Administrative Tribunals, by legal fiction, were given the status of Courts of Record to exercise the Contempt jurisdiction in service matters by Section 17 of the Adminstrative Tribunal Act, 1985 which reads:
"17 Power to punish for Contempt :-- A Tribunal shall have, and exercise, the same jurisdiction, powers and authority in respect of contempt of itself as a High Court has and may exercise and for this purpose, the provisions of the Contempt of Courts Act, 1971 (70 of 1971) shall have effect subject to the modifications that-
(a) the references therein to a High Court shall be construed as including a reference to such Tribunal;
(b) the references to the Advocate-General in Section 15 of the said Act shall be construed-
(i) in relation to the Central Administrative Tribunal, as a reference to the Attorney-General or the Solicitor-General or the Additional Solicitor-General; and
(ii) in relation to an Administrative Tribunal for a State or a Joint Administrative Tribunal for two or more States, as a reference to the Advocate-General of the State or any of the States for which such Tribunal has been established"
A reading of the above Section makes it clear that because of the exclusion of the jurisdiction of the High Court under Article 226/227 of the Constitution in service matters and consequently to exercise the contempt powers under Article 215 of the Constitution read with Contempt of Courts Act, 1971, such powers were made available to the Administrative Tribunals by deeming them as High Courts. No other meaning can be ascribed to the above Section and by no stretch of imagination, can it be said that the said provision has been enacted specifically conferring contempt jurisdiction on the Administrative Tribunals in exercise of the legislative power of the Parliament under item 14 of List III of Schedule VII of the Indian Constitution, de hors Article 215 of the Constitution and the statute of Contempt of Courts Act, 1971.
10. Basic structure theory was pleaded before the Constitutional Bench in S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386, raising a contention that since the power of the High Court under Articles 226 and 227 is the basic structure of the Constitution, the said Constitutional powers cannot be taken away by any amendment. But, the same was repelled holding that there is no violation of basic structure of the Constitution for the reason that the Administrative Tribunal is an effective alternative mechanism to the High Court jurisdiction in service matters and upheld the Constitution amendment and also the consequent Administrative Tribunals Act, 1985, as being intra vires the Constitution, Because of the said dicta laid down by the Supreme Court, the Administrative Tribunals had been functioning to the total exclusion of High Courts. Fresh litigation had cropped up, with a repeat of challenge to the jurisdiction of the Parliament in ousting the jurisdiction of the High Courts and ultimately the matters from Andhra Pradesh, Tamil Nadu, and West Bengal relating to service personnel, land reforms and sales tax respectively arising out of Article 323-A and B of the Constitution, have landed up in Supreme Court. The batch of those cases was the subject-matter of adjudication before a Seven-Judge Bench of the Supreme Court in L. Chandra Kumar v. Union of India, (supra). In the said case, by unanimous judgment, the basic structure theory which was negatived by the earlier Bench of the Supreme Court in Sampath Kumar's case was reversed and it was held that the power of issuance of Writs and judicial superintendence vested in the High Court under Articles 226 and 227 of the Constitution cannot be divested as they are integral to our Constitutional scheme and can never be ousted or excluded. Consequently, clause (2)(d) of Article 323-A and Clause (3)(d) of Article 323-B to the extent they exclude the jurisdiction of High Courts and Supreme Court under Articles 226, 227 and 32 of the Constitution, were held to be unconstitutional and as a necessary corollary, Section 28 of the Administrative Tribunals Act, was held to be unconstitutional. It was held that the jurisdiction conferred upon the High Courts under Articles 226 and 227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution and that their jurisdiction cannot be outsted. It was emphatically held that the role of Administrative Tribunal is not a substitutional one as propounded in Sampath Kumar's case (supra) and that the Administrative Tribunal cannot be substitute to the jurisdiction of the High Court and the Supreme Court, but it may perform a supplemental role in discharging the powers conferred by Articles 226, 227 and 32 of the Constitution, but as a Court of first instance. The decisions rendered by the Administrative Tribunals have been subjected to judicial review and judicial superintendence of the High Courts under Articles 226 and 227 and the remedy under Article 136 to approach the Supreme Court is provided only against such orders passed by the High Court and not directly from the decision of the Administrative Tribunal. Concisely speaking, the Supreme Court in Chandra Kumar 's case has laid down that the Administrative Tribunal is a subordinate to the High Court amenable to its jurisdiction under Articles 226 and 227 of the Constitution, even if the administrative control docs not vest in the High Court. mT.m.r.k. Choudhary made an endeavour that the Administrative Tribunal discharges judicial function and has got all the trappings of the Court and as such, is a Court and for that purpose had cited the decisions in Jugal Kishore v. Sitamarhi Central Co-op Bank, and S.D. Ghatge v. State, and that the Administrative Tribunal is a Court subordinate to the High Court and as such, is not entitled to exercise the power of contempt by itself, even though the High Court does not have administrative control over it. The Supreme Court in Jugal Kishore's case (supra) held that the subordination for the purpose of Section 3 of Contempt of Courts Act, 1952 means judicial subordination. The purport of the said judgment is that a subordinate Court/ Tribunal may or may not be subject to administrative control of High Court, yet, if there is a judicial subordination, the High Court by virtue of Section 3 of Contempt of Courts Act, 1952 (corresponding to Section 10 of Contempt of Courts Act, 1971) can exercise the power of punishing for contempt of subordinate Courts/Tribunals. As the purport of the judgment of the Bombay High Court in S.D. Ghatge v. State, (supra) is also the same, we need not go into the details of the said judgment.
11. Contempt power is an inseparable attendant upon every superior Court. As such, since time immemorial, the superior Courts which came to be called as Courts of Record were exercising this power. For the first time in India, Contempt of Courts Act, 1926 was enacted and after its repeal, 1952 Act was enacted and after the repeal of the said Act, the present Act of 1971 was enacted. From time to time, amendments were thought of and as such, the enactment of 1926 was followed by future enactments by repealing the earlier ones. Previous to the Act of 1926, there was no codification of law of contempt and there was no prescribed procedure and there was no clear-cut jurisdiction for the superior Courts i.e. Courts of Record, to exercise contempt power insofar as subordinate Courts/Tribunals were concerned, A question arose as to whether the contempt jurisdiction was vested for the first time by such codification, in the Courts of Record, for punishing for contempt of itself as also of subordinate Courts. It was held time and again mat it was not so that contempt power is not conferred for the first time in 1926 Act, but it only recognised the pre-existing right of the contempt jurisdiction in the superior Courts of Record and clarified that not only the Courts of Record were entitled to punish for the contempt of themselves, but also of their subordinate Courts and Tribunals and that it was for that purpose of clarification and reiteration of contempt rights of Courts of Record, 1926 Act was enacted. On the advent of Constitution of India and having regard to Article 215, the inherent powers of High Courts to exercise contempt jurisdiction with their status as the Courts of Record are preserved and the High Courts are entitled to punish the contempt of themselves as also the Courts/Tribunals subordinate to them. Plethora of precedents on that aspect need not be restated. Suffice it to mention the latest Supreme Court judgment in Supreme Court Bar Association v. Union of India, .
12. A question also arises as to whether the subordinate Courts /Tribunals in the State are also Courts of Record. According to the old conception, no Court/Tribunal lower than the High Court could be the Court of Record. But, because of the evolution of law, it is now clear that in the State, while the High Court is the superior Court of Record, the Courts/ Tribunals subordinate to it arc the inferior Courts of Record. Then further question arises as to whether inferior Courts of Record in the State can punish for contempt of themselves i.e. Courts/Tribunals subordinate to the High. Court. The decision of the Supreme Court in Aligarh Municipality v. E.T.Mazdoor Union, and the decision of a Full Bench of this Court in State of A.P. v. G.M. Anjaiah, cited by the learned Amiens Curiae have got no direct bearing on the issue for adjudication. Another judgment cited by the learned Amicits Curiae in Jennison v. Baker, 1971 (1) All.E.R. 997, has got relevance. But, in the said case, the contempt power even though was exercised by the County Court, such exercise of power was pursuant to the provision made in that behalf. In India, such power is also conferred specifically on every Court granting injunction under Order XXXIX Rules 1 and 2 of C.P.C. and for breach thereof, contempt power can be exercised under Order XXXIX Rule 2-A of C.P.C. But, such exercise of powers by such inferior Courts like County Court in England and the subordinate Courts in India are not analogous to the special jurisdiction of exercise of power of contempt exercised by the superior Court of Record in the State i.e. High Court. A Division Bench of Madras High Court in Advocate General T.N. v. R.M. Krishna Raju, 1981 Crl.L.J.250, referring to Sections 10 and 11 of the Contempt of Courts Act, 1971 has held that:
"From the above Sections, it is manifestly clear that even in respect of the contempt of any subordinate Court, it is only the High Court that can take action against the contemner. The High Court acting as the apex institution has to safeguard the interest of the subordinate Courts."
Same is the view expressed by the Himachal Pradesh High Court in In the Matter of Nanak Chand, , in which the exercise of the contempt jurisdiction by the Sub-Divisional Judicial Magistrate was deprecated holding that:
"At the very outset, it may be mentioned that under the Contempt of Courts Act, 1971, a subordinate Court has no jurisdiction, power and authority to punish for the contempt of itself, even if contempt is found to have been committed by any person or authority. The power to punish for the contempt of the subordinate Courts is vested in the High Court under Section 10 of the Act. The proper procedure to be adopted in such a case by a subordinate Court, therefore, is to make a reference to the High Court. Of course, cases by Section 228 of the IPC or Order 39, Rule 2-A of the Civil Procedure Code stand on a different footing and they are required to be dealt with in accordance with law without the intervention of the High Court. The lower Court, therefore, clearly erred in not following the said procedure even if it had reasons or grounds to believe, prima facie, that the J. E. had committed contempt..."
A Division Bench of Andhra High Court in DJ. Shield V. Ramesam, held that :
"The Constitution of India expressly saved the powers of the High Court to punish for contempt of Court. The Parliament by Act 32 of 1952 repealed the earlier Acts and restated in express terms that subject to the provisions of Section 3 High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of Courts subordinate to it, as it has and exercises in respect of contempts of itself and that it is therefore, obvious that if really the respondents are guilty of contempt of Sessions Court, this Court can commit them for contempt."
13. His Lordship Dr. Justice AS. Anand speaking for the Constitutional Bench of the Supreme Court in Supreme Court Bar Association v. Union of India (supra) after review of the entire case law on contempt, enunciated the legal principles on the said law, to the following effect:
The expression Court of Record has not been defined in the Constitution of India. Article 129, however, declares the Supreme Court to be a Court of Record, while Article 215 declares a High Court also to be a Court of Record. The power that Courts of Record enjoy to punish for contempts is a part of their inherent jurisdiction and is essential to enable the Courts to administer justice according to law in a regular, orderly and effective mariner and to uphold the majesty of law and prevent interference in the due administration of justice. Courts of Record are of two classes-Superior and Inferior. Superior Courts of Record are the Supreme Court for the entire country and the High Courts for each of the States. -- Vis-a-vis the Supreme Court and High Court, the Supreme Court is the superior Court of record entitled to punish the contempt of itself as also of the High Courts, while the High Court can punish the contempt of itself and of its subordinate Courts/ Tribunals. Contempt of Court is contempt of the authority of the Sovereign State exercised through its Courts duly constituted for the administration of justice. The Supreme Court as the apex Court and the High Courts in the States exercise such sovereign power. The County Courts in England are the inferior Courts of Record. Every Superior Court of Record has authority to tine and imprison for contempt of its authority, an interior Court of Record can only commit for contempts committed in open Court, in facie curias. The contempt jurisdiction of Courts of Record forms part of then inherent jurisdiction. Such a power is not derived from statute not truly from the common law but instead flows, from the very concept of Court of law. All Courts of Record have inherent jurisdiction to punish contempts committed in their face, but the inherent power to punish contempts committed outside the Court resides exclusively superior Courts of Record. Superior Courts of Record have an inherent superintendent jurisdiction to punish contempts committed in connection with proceedings before inferior Courts. The power to punish for contempt being inherent in a Court of Record, it follows that no Act of Parliament can take away that inherent jurisdiction of the Court of Record to punish for contempt and Parliament's power of legislation on the subject, cannot, therefore, be so exercised as to stultify the status and dignity of the Supreme Court and/or the High Courts, though, such a legislation may serve as a guide for determination of the nature of punishment which the Supreme Court as the superior Court of Record in the country and the High Court as the superior Court of Record in the State may impose in the case of established contempt. -- That Section 10 of the 1971 Act like Section 2 of the 1926 Act and Section 4 of the 1952 Act recognises the power which a High Court already possesses as a Court of Record for punishing for contempt, which jurisdiction has now the sanction of the Constitution also by virtue of Article 215. The nature and types of punishment which a Court of Record can impose, in a case of established contempt under the common law have now been specifically incorporated in die Contempt of Courts Act, 1971 insofar as High Courts are concerned and therefore, to the extent the Contempt of Courts Act, 1971 identifies the nature or types of punishments which can be awarded in the case of established contempt, it does not impinge upon the inherent powers of the High Court under Article 215 either. No new type of punishment can be created or assumed.
14. As such, it is clear that in the State, the High Court is the only superior Court and the superior Court of Record. The High Court is the custodian of the dignity and majesty of law in the State, concerning not only itself but also all Courts subordinate to it. Subordinate Courts/Tribunals have not been empowered to punish contempt of themselves. They have to report to the High Court in the prescribed form and then the High Court will exercise the said power. It is well settled that when a statue specifically provides for the exercise of a power by a named authority, the ambit and location of that power is to be sought only as prescribed by the said statute and not otherwise. The submission of the learned Amicus Curiae that without contempt power, the Administrative Tribunals would become ineffective, cannot be considered, as the power of a Court/Tribunal over a cause has no relevance to and does not determine its power to deal with a contempt of itself. A reading of Section 30 would make the things very clear that what is independently conferred upon the Tribunal is to deal with ex facie curiae contempt under Section 228 of Indian Penal Code, which power also is vested in the other subordinate Courts/Tribunals, to the exclusion of High Court in view of proviso to Section 10 of Contempt of Court Act, 1971. As such, the legislative intent is clear that only against offences committed against the public servants in discharge of their judicial functions, the Administrative Tribunals Act makes an independent provision analogous to that of other subordinate Courts/Tribunals. That, Administrative Tribunals are subordinate to High Court, admits of no doubt, as, such Tribunals exercise the judicial power of the State and arc amenable to the jurisdiction of judicial review and judicial superintendence of the High Courts under Articles 226 and 227 of the Constitution, The Tribunal cannot be said to have the contempt power sui generis. The status of the Administrative Tribunal is on par with any other subordinate Courts like District Courts and other Tribunals amenable to the jurisdiction of the High Court with only exception that the Administrative Tribunals are conferred with power of judicial review of legislative actions also, because of the verdict in Chandra Kumar's case (supra). But, such conferment of power by the Supreme Court in Chandra Kumar's case enabling the Administrative Tribunal to exercise the powers of Judicial review legislative action cannot elevate the status of the Administrative Tribunal to that of the High Court. Further, if the contempt power is exercised by the Administrative Tribunal, then under Section 19 of the Contempt of Courts Act, 1971, the matter is directly appealable to the Supreme Court as of right and the decision thereon by the apex Court becomes final. It is incomprehensible mat when the Supreme Court has rule in Chandra Kumar's case that no judgment rendered by the Administrative Tribunals in service matters can be directly appealable to the Supreme Court under Article 136 of the Constitution, that the contempt jurisdiction still vests in the Administrative Tribunals, as in that event, the dicta laid down by the Supreme Court will be violated, as, against the exercise of contempt power by the Administrative Tribunal, the matters have to go directly to the Supreme Court by way of appeal and that too, as of right. The contempt power cannot be exercised by the Administrative Tribunal concurrently with the High Court, as there is no such scheme either Constitutional under Article 215 or statutory under Contempt of Courts Act, 1971. We cannot also accede to the contention that the contempt power can be exercised by the Administrative Tribunal subject to judicial review of the said exercise by this Court under Article 226 of the Constitution, for the same reason that if the contempt power is exercised by the Administrative Tribunal, this Court's jurisdiction is barred as there is a right of appeal to the Supreme Court under Section 19 of the Contempt of Courts Act, 1971 and the power which is intended for exercise, as of right, by the Supreme Court of India can never be usurped by the High Court under the guise of exercising the jurisdiction under Article 226/227 of the Constitution of India.
15. In view of what is stated supra, we hold:
(1) that in view of the decision rendered by the Supreme Court in L. Chandra Kumar v. Union of India & Ors., (supra), Section 17 of the Administrative Tribunals Act, 1985, no more survives;
(2) that consequently, the Administrative Tribunals set-up under the Administrative Tribunals Act, 1985 cannot exercise the contempt jurisdiction under Section 17 of the said Act, as the same had become non est under law;
(3) the contempt proceedings in Contempt Application No. 562 of 1996 on the file of the Andhra Pradesh Administrative Tribunal are set aside as being devoid of jurisdiction. But, this will not preclude the respondents 1 to 6 in Writ Petition No. 34841 of 1997 from approaching this Court for punishing the contempt of A.P. Administrative Tribunal relating to the decision rendered in O.A.No.35574 of 1991 by following the procedure as applicable to the contempts of Subordinate Courts provided under the provisions of the Contempt of Courts Act, 1971 and the rules made thereunder by the Andhra Pradesh High Court; and (4) that similarly, the petitioner in CC No. 1054 of 1998 has to approach this Court only by following the procedure as applicable to the contempts of subordinate Courts provided under the provisions of Contempt of Courts Act, 1971 and the Rules made thereunder by the Andhra Pradesh High Court and not directly.
16. The Writ Petition 34841 of 1997 is allowed to the extent indicated above. The Contempt Case 1054 of 1998 is dismissed with liberty to approach this Court following the procedure stated above. We direct the parties to bear their own costs.