Calcutta High Court
Samantha Fay vs Saloo Choudhury & Ors on 19 August, 2009
Author: Biswanath Somadder
Bench: Surinder Singh Nijjar, Biswanath Somadder
In the High Court at Calcutta
Civil Appellate Jurisdiction
Original Side
Present:
The Hon'ble Justice Surinder Singh Nijjar, Chief Justice
And
The Hon'ble Justice Biswanath Somadder
APOT No. 112 of 2009
G.A. No. 892 of 2009
Arising out of G.A. No. 3234 of 2007
C.C No. 166 of 2005
Samantha Fay
Versus
Saloo Choudhury & Ors.
APOT No. 113 of 2009
G.A. No. 893 of 2009
Arising out of G.A. No. 3233 of 2007
C.C No. 166 of 2005
Nadine Causey
Versus
Saloo Choudhury & Ors.
APOT No. 114 of 2009
G.A. No. 894 of 2009
C.C No. 166 of 2005
Guinness World Records Limited
Versus
Saloo Choudhury & Ors.
APOT No. 115 of 2009
G.A. No. 895 of 2009
Arising out of G.A. No. 3232 of 2007
C.C No. 166 of 2005
Bruce Steinberg
Versus
Saloo Choudhury & Ors.
For the Appellant : Mr. Vijay Shankardass, Sr. Adv.
Mr. Dhruba Ghosh,
Mr. S.B. Saraf
Mr. Ganesh Jajodia
For the Respondents : Mr. Jayanta Mitra, Sr. Adv.
Mr. Ranjan Bachawat, Mr. Rudraman Bhattacharjee, Mr. B. Sharma.
Heard on : 07.04.09, 08.04.09 & 09.04.09.
Judgment on : 19.08.09
SURINDER SINGH NIJJAR, C.J. : The above appeals have
been filed against the common judgment dated 27th February, 2009 rejecting the prayer made by appellants seeking exemption of the three alleged contemnors from appearing in person during the pendency of the contempt proceeding.
By this common judgment, we propose to decide all the appeals.
We may briefly notice the relevant facts. The contempt petition being C.C. No. 166 of 2005 was filed by one Saloo Choudhury and Neena Choudh ury alleging that the respondents have failed to issue corrigendum strictly in consonance with the terms of Clause 1 of the consent decree in the publication of 2004-2005 in accordance with orders of this Court dated March 22, 2005. The aforesaid order was passed by the learned Single Judge in E.C. No. 11 of 2005 with C.S. No. 454 of 1993 (Saloo Choudhury & Ors. Vs. Guinness Publishing Ltd. & Ors.). The petitioners claim that respondent nos. 2 to 9 are liable, responsible and answerable for all acts of omission and commission of respondent no. 1 insofar as editing, printing, publication and distribution of the said book is concerned. Respondent no. 1 is Guinness Book of World Records Ltd. (hereinafter referred to GWR), formerly known as Guinness Publishing Ltd. It is the publisher of a book known as "The Guinness Book of Records (hereinafter referred to as 'the book'). Respondent no. 3 to 9 are held and/or hold the following position and/or posts in the respondent no. 1.
Respondent no. and name Position held in the
respondent no.1.
Respondent no. 3 (Samantha Head of Global sales and Fay) marketing Respondent no. 4 (Nadine Sales and distribution Causoy) Manager Respondent no. 5 (Claire Managing Editor Folkard) Respondent no. 6 (Carla Editor Maeson) Respondent no. 7 (Rob Editor Dimery) Respondent no. 8 (Stewart Keeper of the Records Newport) Respondent no. 9 (Bruce Chief Executive of HIT Steinberg) Entertainment The petitioners claim to have circumnavigated the globe in a Hindustan Motor Contessa Car on 17th of February, 1989 in a period of 69 days. They claim that this was done with the knowledge, assent and correspondence of respondent no. 1. They even used the route approved by respondent no. 1, which covered six continents. Respondent no. 1 duly accepted the fact of the unique feat of the petitioner being the first and the fastest circumnavigation of the globe by a man and woman respectively. This fact was recorded in a certificate dated 5th of March, 1990, issued by respondent no. 1. This entitled the petitioner to have corresponding entries in the book. However, respondent no. 1 failed to carry out its obligation, which prompted the petitioners to file civil suit seeking inter alia mandatory injunction compelling the defendants to publish that the plaintiffs are the first and fastest man and woman respectively to have circumnavigated the earth covering six continents. We may notice here that none of the respondent nos. 3 to 9 are impleaded in the civil suit, although Guinness Publishing Ltd is impleaded as defendant no.
1. By an order dated 14th October, 1993 the learned Single Judge restrained the defendants from publishing the book without including the petitioners' aforesaid feat. Ultimately, the parties reached a settlement and a compromise decree was passed on 2nd July, 1998 (hereinafter referred to as consent decree). Clause 1 of the consent decree reads as follows :-
"The Defendant No. 1, Guinness Publishing Limited agrees and undertakes to recognize and publish the plaintiffs, namely Saloo Choudhury and Mrs. Neena Choudhury as the first and fastest man and woman to have circumnavigated the earth by car covering six continents under the applicable Rules in 1989 and 1991 in all future editions of "The Guinness Book of Records" published by Guinness Publishing Limited."
According to the petitioners the GWR in violation of the first clause of the consent decree omitted the word 'first' from the 2004 Edition and have published the name of petitioner no. 1 as Mohammad Saloo Choudhury. Similarly, in the year 2005 Edition the word 'first' is missing and the name of petitioner no. 1 does not appear in the publication. However, name of one 'Mohammad' appears. The petitioners, therefore, took out an execution application and prayed for an injunction against the respondents/defendants from distributing any copy of 2004 in 2005 Editions of the book without inserting a prominent corrigendum as mentioned therein. In this application the learned Single Judge passed an order dated 22nd March, 2005. By the aforesaid order the learned Single Judge directed the defendants to issue a corrigendum strictly in accordance with Clause 1 of the consent decree. The petitioners claim that the aforesaid directions issued by the learned Single Judge have been willfully and deliberately violated. Therefore, the petitioners filed the contempt petition, although the execution application being E.C No. 11 of 2005 is still pending. On 12th of August, 2005 the learned Single Judge appointed a Special Officer to have a market survey with regard to the sale and publication of the book for the year 2004-2005. The Officer was appointed to ascertain as to whether the appropriate information has been published in terms of Clause 1 of the consent decree. The Officer, thereafter, visited a good number of large book- sellers and publishers of the city. He collected hard bound and soft bound copies of the book. He reported that none of the book had any corrigendum, nor was any book accompanied by any corrigendum. Taking note of the report of the Special Officer, the learned Single Judge by order dated 27th of July, 2006 directed issuance of Rule Nisi against respondent no. 2 to 8. Direction was also issued that Rule Nisi be served through diplomatic channel upon all the respondents. There seems to have been some difficulty in serving Rule Nisi through the diplomatic channel. Consequently, by order dated 9th of March, 2007 Advocate-on-record of the petitioner was directed to effect service by speed-post with acknowledgement due at the addresses given in the cause title. It was also directed that a copy of the Rule Nisi be dispatched by the Original Side of the Office of the Indian High Commission in London. The Court requested the Indian High Commissioner to cause the Rule Nisi to be served at the addresses given in the cause title if the bilateral relation between the two countries i.e. India and London does not stand in the way of the process to be served. On 14th of September,2007, the Court notices that some of the respondents are represented through Advocate. They were not personally present. Therefore, the Advocate made an oral prayer for exemption from personal appearance. This oral prayer was not entertained. It was observed that unless specific ground and sufficient cause are shown the question of dispensing from personal appearance does not and cannot arise. The learned Single Judge, therefore, extended the time for personal appearance of respondent nos. 2 to 9. Initially, Rule Nisi had not been issued against the respondent no. 9. However, it was issued by an order dated 5th July, 2007. Since, the oral prayer for exemption had been declined by the learned Single Judge the appellants filed 3 separate applications for exemption setting out various reasons in support of the prayers. Respondent no. 3 in her application states that during the period following the order dated 22nd March, 2005 she was acting at all time in accordance with the instructions and directions of her employer, i.e., GWR. Although she had been made aware of the importance of trying to ensure that corrigendum slips were issued and circulated to all of GWR's distributors, she was not aware of the precise terms of the order. She, however, claims that at the time of filing of the application she understands that the order had imposed certain obligations on her employer GWR, but none on her personally. She also pleads that at no time did she ever have any intention of disobeying or flouting the orders of the Hon'ble Court. She followed the instructions to the best of her ability and in good faith. She placed reliance on the affidavit affairmed by Janet Lesley Rowland on 22nd August, 2007 which has been filed on behalf of the employer GWR. She offers her most sincere and unqualified apology to the Court for any lapse that may have occurred, even if inadvertently in complying with the order dated March 22, 2005. She also pleads that she may not be required to undertake the very long and strenuous journey to India from the United Kingdom involving substantial time and expense. She claims that she has been on maternity leave since 24th March 2007 for a period of 12 months and since she has a very small baby the journey to India would be particularly onerous for her. The appellant, therefore, prayed for exemption from personal attendance; discharge from personal attendance as well as discharge her from any further involvement in the proceeding.
The respondents have filed an affidavit-in-opposition briefly setting out the history as narrated by us above. Each and every averment made is disputed and denied. The application is stated to have been filed with the mala fide motive. Janet Lesley Rowland (hereinafter referred to as Rowland) the Company Secretary of respondent no. 1 (GWR) in the affidavit affairmed on 22nd August, 2007, sets out the entire history of the litigation in detail. It also states that respondent no. 3 was acting on the instructions of the employer. She did everything possible to ensure that she followed the Company's directions even though she was not aware of the full term of the order dated 22nd March, 2005. Again and again the affidavit reiterates that non-compliance of the order if any was wholly unintentional. It is also reiterated that the respondents hold the Hon'ble Court in highest esteem. The affidavit also sets out that respondent no. 4 namely, Nadine Causoy was also not in any manner responsible for flouting the orders of this Court. It is stated that the affidavit has been filed for the purpose of explaining the status of each of the individual respondents upon whom the Court has directed the Rule Nisi be served. The affidavit also sets out the background and demonstrates the steps taken by the GWR to comply with the order. Thirdly, the affidavit seeks to explain and apologise for any unintended deficiencies in GWR's attempts to comply with the order at the time.
The affidavit sets out elaborate grounds on the basis of which Rule Nisi ought to be discharged against respondent nos. 2 to 8. It is emphatically stated that at the relevant time these respondents were not individually parties to the proceedings in which the order of 22nd March, 2005. It is only GWR who as the defendant was the subject of that order. The affidavit points out that it is unclear how these individuals were selected by the petitioners as having any kind of responsibilities for the alleged acts or omissions of the first respondent (GWR). There is no proper explanation by the petitioners how these individuals were selected nor why it is said they are in contempt personally. The affidavit further emphasizes that, in fact, all but two of the respondents (respondent nos. 3 and 4) have either left the employment of GWR sometime ago or were never employees of the company at all. The affidavit, however, seeks to explain in paragraphs 6 to 11 the reasons as to why the aforesaid respondent nos. 2 to 8 should be discharged from the contempt proceeding.
Since we shall not be going into the merits of the controversy at this stage it is not necessary to notice any further the detailed plea for seeking discharge from the proceeding. Suffice it to say that an impassioned plea had been made by the employer for discharge of the employees as none of them are individually responsible for any of the actions/omissions. This affidavit has been followed by a supplementary affidavit by Alistair Richards, the Managing Director of GWR on 23rd June, 2008. He has pointed out in this affidavit some further reasons as to why respondent nos. 2 to 8 ought to be discharged form the contempt proceeding.
After taking into consideration entire pleadings and after noticing the submissions made by the learned counsel, the learned Single Judge by an order dated 27th of February, 2009 has dismissed the applications of respondent nos. 4 and 9. However, the application of respondent no. 3 has been allowed and she has been directed to record her personal appearance on any working day within 4 weeks from the date of communication of the order before the Indian High Commissioner in London. She has also been directed to give an undertaking in writing to the effect that she will appear in Court whenever directed by the Court. The learned Single Judge declined to consider the prayer for discharge on the ground that the submissions made by the learned counsel for the respondents/applicants are in the nature of defence and ought not to be considered at this stage. This can only be explained at the time of fullfledged hearing of the Rule Nisi. The learned Single Judge decides not to resolve those issues finally at the present moment, though it has been observed tentatively and prima facie about the involvement of the respondents to maintain the Rule Nisi. These three appeals have been filed against the aforesaid order.
We have heard the learned counsel for the parties. Mr. Vijay Shankar Dass, learned senior counsel appearing for the appellants, submits that this is not a normal adversarial appeal. The facts and circumstances of this case are very peculiar and there is no precedent on the issues raised herein. At the outset he submits that the appellants are foreign nationals who have been asked to appear in the Court upon pain of punishment. Learned counsel has made detailed references to the elaborate submissions made in various affidavits and the applications. Learned counsel submits that once the plea had been raised by the appellants seeking discharge from the proceeding, it was incumbent upon the learned Single Judge to decide the issue at a preliminary stage. Learned counsel submits that the contempt hearing was purely of a civil nature. Therefore, the respondents could well be represented by counsel. The entire issue can be decided on affidavits. Therefore, at this stage, to coerce the respondents to attend Court would be punitive. These individuals would have to incur tremendous amount of expense. They would have to reorganize their personal and professional affairs for a long time. Therefore, situation cannot be equated with the local residents. In any event, the principal officer of the employer has offered to attend the proceedings as and when directed. Learned senior counsel submitted that a perusal of the judgment would clearly show that the learned Single Judge has failed to take into consideration the adverse effects on the professional and personal lives of those respondents in case they are compelled to travel to India. Learned counsel submits that the learned Single Judge failed to take into account that the Managing Director of the Company in the affidavit had clearly stated that the Company's top management was willing to take responsibility for the collective action of the Company and has volunteered to appear to Court as and when required. The respondents ought to have been exempted from personal appearance.
On the other hand, Mr. Jayanta Mitra, learned senior counsel appearing for the respondents, submits that under Rule 19 of the Calcutta High Court Contempt of Courts Rule, 1975, the High Court has the power to issue Rule Nisi or reject the petition or make such other order as thought fit. Once Rule Nisi is issued, there is a specific stipulation that on the returnable date the respondents shall appear personally before the Court and shall not leave the Court without permission. Therefore, the application has to be seen in the context of Rule Nisi. Learned senior counsel further submitted that these 3 appeals are not maintainable as by the impugned order the learned Single Judge has merely dismissed the application for exemption. According to the learned counsel such an appeal would not lie as no issue had been decided by the learned Single Judge. Reliance has been placed on the judgment of the Supreme Court in the case of Baradakanta Mishra -vs- Mr. Justice Gatikrushna Misra, Chief Justice of the Orissa High Court [(1975) 3 SCC 535]. Learned counsel submits that under Section 19 of the Contempt of Courts Act, an appeal would lie only against an order of conviction. According to the learned counsel an appeal would lie under Section 19 of the Act only when an order is passed by the Court in case of jurisdiction to punish for contempt. That occasion would only arise upon conviction of the appellants. Learned counsel also relied on the judgment of the Supreme Court in the case of Midnapore Peoples' Coop. Bank Ltd. & Ors. -vs- Chunilal Nanda & Ors. [(2006) 5 SCC 399]. In any event the order would have to be decided some right or bone of contention between the parties. Learned counsel relies on the judgment of the Supreme Court in the case of Purshotam Dass Goel
-vs- Hon'ble Mr. Justice B. S. Dhillon & Ors. [(1978) 2 SCC 370]. The expression 'any order' in Section 19 of the Contempt of Courts Act must be read with 'decision'. Further the order or decision must be in the nature of punishment for contempt. Learned counsel relied on the judgment of the Supreme Court in the case of D. N. Taneja - vs- Bhajan Lal [(1988) 3 SCC 26]. In case every interlocutory order is held to be appealable it would lead to ridiculous results. Learned counsel also relies on the judgment of the Supreme Court in the case of State of Maharashtra -vs- Mahboob S. Allibhoy & Anr. [(1996) 4 SCC 411]. There has to be a clear decision on the lis between the parties. At the stage of mere appearance in response to the Rule Nisi no appeal would be maintainable. Learned counsel also relied on the judgment of the Supreme Court in the case of Sanjay Dalmia & Ors.
-vs- Additional Collector of Central Excise & Customs [1989 (1) CHN 48]. Learned counsel further stated that the learned Single Judge has merely exercised discretionary power which cannot be said to either arbitrary or unreasonable. Therefore, the appeal would not be maintainable. The principles with regard to exercise of appellate power in appeals from discretionary orders have been laid down by the Supreme Court in the cases of Charles Osenton & Company vs. Johnshon 1942 AC 130, The Printers (Mysore) Pvt. Ltd., vs. Pothan Joseph, [AIR 1960 SC 1156] and Uttar Pradesh Co- operative Federation Ltd. vs. Sunder Bros. Delhi [AIR 1967 SC 249]. The case of the petitioner does not fall within the parameters laid down by the Supreme Court.
Mr. Shankar Dass in reply submitted that the judgment cited by learned counsel for the respondents herein were not applicable in the facts of the present case. He reiterated that Rule Nisi threatens to punishment. Learned Single Judge has not considered any of the issues raised by the appellants. Exemption was not sought only on the ground that journey to India would be onerous and expensive, although it is maintained by learned counsel that compulsion to travel to India to answer Rule Nisi in a contempt proceeding, would, by itself, be coercive and punitive in nature. It would adversely affect the careers of the respondents. They would be lowered in the eyes of other employees. Their personal freedom of movement would be curtailed. They would find it difficult to obtain visas to any other country in the face of pendency of these proceedings. Therefore, it was necessary that the issue with regard to discharge of the respondents from contempt proceeding be decided as a preliminary issue. Learned counsel further submitted that Section 19 of the Contempt of Courts Act needs to be widely interpreted. The Court ought to take a holistic view. Learned counsel further submitted that a correct interpretation of Section 12 of the Contempt of Courts Act would not justified issuance of Rule Nisi. The petitioner has deliberately picked up some employees at random to pressurize GWR for ulterior motives. In support of his submissions learned counsel relied on a number of judgments, viz., (1) Anuj Maheshwari -vs- Ramesh Yadav & Anr. [AIR 1997 SC 2555], (Final Para) (2) R. N. Dey & Ors. -vs- Bhagyabati Pramanik & Ors. (2000) 4 SCC 400 (paras 7,8,10,11), (3) Ashoke Kumar Rai -vs- Ashoke Arora & Anr. [1996 CWN 278] (paras 9,10,18,24), (4) Sanjay Dalmia & Ors. -vs- Additional Collector of Central Exercise & Customs. [1989 (1) CHN 48]. Mr. Shankar Dass also relied on some of the judgments cited by Mr. Jayanta Mitra, viz., (1) [1989 (1) CHN 48] (supra) (2) 1996 CWN 278 (supra) and (3) [(2006) 5 SCC 399] (supra).
In addition learned counsel relied on the judgments in the cases of (1) [(2000) 4 SCC 400 (supra) and (2) AIR 1997 SC 2555 (supra). Learned counsel relied on the judgment in the case of H. L. Bolton (Engineering) Co. Ltd. -vs- T. J. Graham & Sons Ltd. [1956 (1) QB 159]. Mr. Shankar Dass submitted that it is very doubtful as to whether any action could be taken against respondent nos. 3 to 8 who are British nationals and not available to the jurisdiction of this Court. Learned counsel also relied on the judgment in the case of Bengt Ingmar Eriksson vs. Jamnibai Sukharya Dhangda [(1987) 89 BLR 263]. Lastly, it is submitted that by now the entire order has been complied with, contempt if any has been purged. Therefore, it is wholly unnecessary to keep the contempt proceeding pending.
We have considered the submissions made by the learned counsel for the parties.
We are however not required, at this stage, to enter into the merits of the contempt proceeding as the learned Single Judge has not taken a decision on the plea for discharge of the respondents from further proceeding. The learned Single Judge seems to have proceeded on the basis that since the printed Rule Nisi form directs personal appearance of the respondents, the plea with regard to discharge cannot be considered unless the respondents are personally present.
The Learned Single Judge has recorded some of the submissions made by the learned counsel for the appellants viz. i) "the learned counsel has submitted a lot of things both on fact and law which according to the learned Single Judge are not relevant for the time being to decide the issue involved in the present application;" ii) "the precise point of the three applications whether the applicants is entitled to exemption from personal appearance in terms of the Rule issued by this Court on the ground mentioned there"; iii) "the rule, each and every person to appear personally".
The learned Single Judge whilst recording the summary of the submission made by the learned counsel for the appellant has also simultaneously recorded some findings thereupon. Therefore, in order to appreciate the submission made by the learned counsel, we reproduce the relevant portion of the judgment as under:
"I have perused the petition, affidavits filed by the respective parties and heard the learned counsel. The learned counsels have submitted a lot of things both on fact and law and the petitioners have also stated in the petition what their learned lawyer say in Court. According to me all are not relevant for the time being to decide the issue involved in the present applications. The precise point of these three applications are whether the applicants is entitled to exemption from personal appearance in terms of the Rule issued by this Court on the ground mentioned therein. The Rule commands each and every person to appear personally. The grounds for exemption as I understand is that the journey from London to Calcutta to record their personal attendance in court are expensive, hazardous and harassing. One of the petitioners namely third respondent Samantha Fay has special reason for her inability to appear in this court personally as she is having an one-year old baby on her lap. Other grounds are that these persons are not responsible or for that matter when the order was passed the 9th respondent was not in employment. The principal officer of the first company has already taken upon himself the responsibility for carrying out the order or if necessary he will appear in person on their behalf. According to them orders have been carried out and company only has its responsibility to do so which has already been done. Significantly no Rule has been issued against the company. I think those issues whether they are liable or not have prima facie been decided by this Court while issuing Rule. The Court is empowered to punish under the provision of sub section 5 of Section 12 of the Contempt of Courts Act, 1971 (hereinafter referred to as the said Act) amongst others any other officer of the company. Naturally the Court has to issue notice to appear in the form of Rule against those persons who were and still are associated with the company when alleged violation took place or such violation continues. From the statements and averment it appears to me admittedly the petitioners were at the relevant point of time and still now are associated with and/or employed under the first respondent. It is further alleged that commission of contempt in this case is continuing one. Under those circumstances it is not possible for the court to relieve them without hearing the issues as to whether they were liable or not.
I think Mr. Sankaranand's submission in this respect ought not to be dealt with at this stage as the same constitute defence. It can only be explained at the time of full-fledged hearing of the Rule. As such I think it not to resolve those issues finally at the present moment though I have observed tentatively and prima facie about their involvement to maintain the Rule as against them. These grounds really explain extent of liability or accountability which could or might be taken as defence. I am unable to accept the contention of Mr. Sankaranand that cogent grounds have been made out for exempting them from personal appearance. The common ground of difficulty in traveling from England to Calcutta is unacceptable to this Court except in special and exceptional circumstances as it has been rightly urged by Mr. Mitra that there is direct flight from London to Calcutta that takes only about 10 to 12 hours to complete journey. This fact stated in the affidavit in opposition has not been denied and disputed in the affidavit in reply. Moreover, now-a-days journey by aircraft is not so uncomfortable or hazardous as it has been projected before me. Therefore, this ground is flimsy and has been put forward intentionally for avoiding Court's process. As far as other ground taken by the third respondent that she is having one-year old baby, is concerned, I think that it needs consideration. A mother can not be asked to come to India leaving her baby for two or three days. It is absurd to think one-year baby would travel by air continuously 10 to 12 hours without hazards. It is settled position of the law while exercising contempt jurisdiction court has inherent power to pass such or other order as it may think fit."
From the above it becomes apparent that the learned Single Judge has treated the three applications as application for exemption, as well as for discharge. The learned Single Judge also concludes that the appellants could not be granted exemption without hearing the issue as to whether they are liable or not. At the same time, the learned Single Judge observed that tentatively it would appear that the appellants are liable to be punished for contempt.
The learned Single Judge also seems to be of the opinion that since the form of Rule Nisi directs personal appearance of the appellants, being the alleged contemnors, it would not be possible to consider the application for exemption in the absence of the appellants. Even this finding is not uniform with regard to all the appellants. The learned Single Judge accepts that "it is settled position of law by exercising contempt jurisdiction court has inherent power to pass such or other order as it may seems fit". In exercise of the aforesaid inherent power the learned Single Judge grants exemption to Samantha Fay. Having exercised the aforesaid inherent jurisdiction, in our opinion, the learned Single Judge accepts that personal appearance of the appellants is not absolutely essential before the application for exemption could be considered. Indeed, the learned Single Judge has considered and rejected the application on the ground that traveling to India from England being onerous and difficult is a flimsy ground put forward intentionally for avoiding court's process.
We are of the considered opinion that the aforesaid finding of the learned Single Judge are not borne out from the record. Throughout the proceedings, none of the appellants have ever avoided the Court proceedings. In fact, the Managing Director has clearly offered to be present in Court as and when required. However, fervent prayer has been made on behalf of the employees for exemption, on the ground that they do not have any determinative role to play in issuance of the corrigendum. The employees were merely obeying the instructions issued by the superiors. In such circumstances, it is pleaded that the employees have not committed any wrong, and, therefore, be exempted. Having noticed the aforesaid submissions, the learned Single Judge declines to consider the same on the basis that such issues would constitute defence which can be only explained at the time of full-fledged hearing of the Rule. In our opinion, the learned Single Judge was not bound to decide the issue of discharge as a preliminary issue. Supreme Court in the case of Barada Kanta Mishra vs. Orissa High Court [(1977) 3 SCC 345 = AIR 1976 SC 1206] has clearly held that the Court may decline to hear the case in a piecemeal manner and in those circumstances no appeal would lie. The aforesaid proposition of law is reiterated in the case of Purshotam Dass Goel (supra).
We are, however, of the opinion that the wording of Rule Nisi cannot in any manner curtail the right of a respondent in contempt proceedings to seek exemption, at the outset. In these proceedings the Court is exercising not only the jurisdiction under the Contempt of Courts Act, 1971 but also the inherent jurisdiction under Article 215 of the Constitution of India. The jurisdiction of High Court under Article 215 of the Constitution of India is wholly unfettered by the provisions of the Contempt of Courts Act, 1971 or the Rules claimed therein. The learned Single Judge accepts this position in granting exemption to Samantha Fay, who has been described as respondent no. 3 in the impugned order. We may also notice here that the learned Single Judge in the order dated 27th July, 2006, accepted the proposition that "contempt proceedings is drawn up only to uphold the majesty of the Court and not to help the litigant to use it as a tool for satisfying personal grudge or to get personal vendetta."
The settled legal position would clearly indicate that after having brought the matter before the court through a contempt application, the petitioners have very little role to play in the proceedings. In the present proceedings, the petitioners have been permitted to pursue the proceedings for contempt relentlessly and vehemently. This is evident from the pleadings submitted by the petitioners in opposition to the applications for exemption and discharge.
In Baradakanta Mishra vs. Justice Gatikrushna Misra [1975 (III) SCC 535] the Supreme Court has clearly held that contempt proceedings is the matter entirely between Court and the alleged contemnor. No one has a statutory or common law right to say that he is entitled as a matter of course to an order for committal because the alleged contemnor is guilty of contempt. All that he can do is to move the court and draw its attention to the contempt alleged who have been committed. It will then be for the Court, if it so thinks fit, to take action to vindicate its authority and commit the alleged contemnor for contempt. It is clearly observed that "an outside party comes in only by way of drawing the attention of the court to the contempt which has been committed; ...... he does not become a part of the proceeding for contempt which may be initiated by the Court."
The Court also observed in the same judgment as follows:
"......Where the Court initiates a proceeding for contempt suo motu, it assumes jurisdiction to punish for contempt and takes the first step in exercise of it. But what happens when a motion is made by the Advocate General or any other person with the consent in writing of the Advocate General or a reference is made by a subordinate court. Does the Court enter upon the jurisdiction to punish for contempt and act in exercise of it when it considers such motion or reference for the purpose of deciding whether it should initiate a proceeding for contempt? We do not think so. The motion or reference is only for the purpose of drawing the attention of the court to the contempt alleged to have been committed and it is for the court, on a consideration of such motion or reference, to decide, in exercise of its discretion, whether or not to initiate a proceeding for contempt. The court may decline to take cognizance and to initiate a proceeding for contempt either because in its opinion no contempt prima facie appears to have been committed or because, even if be taken against the alleged contemner. The exercise of contempt jurisdiction being a matter entirely between the Court and the alleged contemner , the Court, though moved by motion or reference, may in its discretion, decline to exercise its jurisdiction for contempt. It is only when the Court decides to take action and initiates a proceeding for contempt that it assumes jurisdiction to punish for contempt."
These observations clearly indicate that in the present case the court has clearly assumed jurisdiction to punish for contempt by issuance of Rule Nisi. The appellants were required to appear in court in obedience to the Rule Nisi. Therefore, an application has been made for seeking exemption from appearance. Once the application has been made, the same had to be considered by the learned Single Judge on the basis of the well-known principles for passing a discretionary order. It is well settled that normally, the appellate court would not interfere with the exercise of the discretionary jurisdiction of the learned Single Judge. We may notice the principles of law as stated in the case of Charles Osenton & Co. vs. Johnston (supra), where the Court has clearly held as follows:
"...... The law as to the reversal by a court of appeal of an order made by the judge below in the exercise of his discretion is well-established, and any difficulty that arises is due only to the application of well-settled principles in an individual case. The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations such as those urged before us by the appellant, then the reversal of the order on appeal may be justified."
In the present case, in our opinion, the learned Single Judge has declined to grant exemption without considering the numerous facts pleaded and placed before the learned Single Judge, the applications seems to have been dismissed only on the ground that the same can only be considered upon personal appearance of the appellants. We are unable to agree with the aforesaid view point.
In the present case, the contempt proceedings are of civil nature. The appellants were entitled to claim exemption. The applications could not be rejected on the basis of the wording of Rule Nisi. Powers of the High Court under Article 215 of the Constitution of India are not fettered by the Contempt of Courts Act, 1971 or the Rules framed thereunder. The appellate powers of this Court under Articles 15 of the Letters Patent Appeal are not confined only to final judgments but are available also for challenging interlocutory orders. An order declining to grant exemption, in the facts and circumstances of the present case, would certainly cause adverse civil consequences to the appellants. Such order, therefore, cannot be termed merely an order which has not effect on the rights of the appellants.
It is true that routine orders which are passed to facilitate the progress of the case till its culmination in the final judgment may not be appellable. Similarly, orders that may cause some inconvenience or some prejudice to a party, but which do not finally determine the rights and obligations of the party would not be appellable. It is, however, settled that although an order may not finally and conclusively determine the rights of parties with regard to all or any matter in controversy but may have vital effect on valuable rights and obligations of the parties. Such order would clearly be appellable, under Clause 15 of the Letters Patent.
We may also notice here the observations of the Supreme Court in Midnapore Peoples' Cooperative Bank Ltd. (supra) as under:
"14. The above principle was reiterated in Mithailal Dalsangar Singh vs. Annabai Devram Kini [(2003) 10 SCC 691] and Subal Paul vs. Malina Paul [(2003) 10 SCC 361]. In the latter case, this Court held: (SCC pp. 370-71, paras 32 & 35)
32. While determining the question as regards clause 15 of the Letters Patent, the court is required to see as to whether the order sought to be appealed against is a judgment within the meaning thereof or not. Once it is held that irrespective of the nature of the order, meaning thereby whether interlocutory or final, a judgment has been rendered, clause 15 of the Letters Patent would be attracted.
35. ...... Clause 15 of the Letters Patent confers a right of appeal on a litigant against any judgment passed under any Act unless the same is expressly excluded. Clause 15 may be subject to an Act but when it is not so subject to the special provision the power and jurisdiction of the High Court under clause 15 to entertain any appeal from a judgment would be effective.
15. Interim orders/interlocutory orders passed during the pendency of a case, fall under one or the other of the following categories:
i) Orders which finally decide a question or issue in controversy in the main case.
ii) Orders which finally decide an issue which materially and directly affects the final decision in the main case.
iii) Orders which finally decide a collateral issue or question which is not the subject-matter of the main case.
iv) Routine orders which are passed to facilitate the progress of the case till its culmination in the final judgment.
v) Orders which may cause some inconvenience or some prejudice to a party, but which do not finally determine the rights and obligations of the parties.
16. The term 'judgment' occurring in clause 15 of the Letters Patent will take into its fold not only the judgments as defined in Section 2(9) CPC and orders enumerated in Order 43 Rule 1 CPC, but also other orders which, though may not finally and conclusively determine the rights of parties with regard to all or any matters in controversy may have finality in regard to some collateral matter, which will affect the vital and valuable rights and obligations of the parties. Interlocutory orders which fall under categories (i) to (iii) above, are, therefore, 'judgments' for the purpose of filing appeals under the Letters Patent. On the other hand, orders falling under categories (iv) and (v) are not 'judgments' for the purpose of filing appeals provided under the Letters Patent."
In the present case, directing the appellants to travel to India would certainly amount to imposing a monetary punishment upon the appellants. The amount of damage that may be caused to the appellants would in all probabilities be far in excess of any monetary fine that may ultimately be imposed upon them, in case the appellants are ultimately punished for contempt. The Court cannot shut its eyes and ears to the stark reality of a situation and insist upon obedience to the exact model form of Rule Nisi, as specified under Rule 19 of the Rules of this Court, being the Calcutta High Court (Contempt of Courts) Rules, 1975.
In our opinion, the application for exemption was made bona fide and in very compelling circumstances. The employees are not Indian nationals. In spite of being foreign nationals and not even based in India, the respondents have readily submitted to the jurisdiction of this court. In the affidavits filed by the Respondents, there is not even a trace of defiance either to the authority or directions of this court. The unique circumstances of this case made it a compelling necessity to view the plight of the respondents, i.e. employees of GWR, with compassion.
It is undoubtedly true that as a general rule, the local alleged contemner is required to be present, in obedience to Rule Nisi. In cases involving Indian citizens, clearly different considerations may weigh with the court, especially in a case where the alleged contemner has deliberately acted in defiance of the court orders. While considering application for exemption in such cases, the Court would be justified in not attaching much importance to the social, political or economic status of the alleged contemner, especially in cases where the behaviour and utterances of an alleged contemner are designed, either deliberately or recklessly, to erode the confidence of the people in the 'rule of law' and 'administration of justice' by Court. In such circumstances, it may be necessary to pass suitable orders to demonstrate the principle that no individual is above the law.
In view of Article 14 of the Constitution of India, no individual can claim special treatment in law, on the basis of social, political or economic status. Article 14 provides that :-
"14. Equality before law. - The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."
This Article of the Constitution ensures that in law the King and the common man stand on an equal footing. It is the fundamental duty of the Courts to ensure that the little man is treated equally with the big man.
This principle was first stated by Bracton in his treatise on common law in which he wrote :-
"Quod Rex non debet esse sub homine, sed sub Deo et Lege' (That the King should not be under man, but under God and the law."
These words were quoted time and again when the Stuart Kings claimed to rule over England by divine right. At one stage King James (I) declared :-
"Then I am to be under the law. It is treason to affirm it."
To this Sir Edward Coke gave the celebrated reply, which has been reiterated and repeated in all jurisdictions on numerous occasions. The reply was :-
"Thus wrote Bracton, "The King is under no man, but under God and the law."
This principle has been reaffirmed by the Supreme Court on numerous occasions. At this stage it would be beneficial to notice the observations of the Supreme Court in the case of I. Manilal Singh vs. Dr. H. Borobabu Singh [1994 Supp (1) SCC 718]. In this case the Supreme Court was considering the case of a Speaker of the Manipur Legislative Assembly who belligerently persisted in defying the orders passed by the Supreme Court. In spite of being specifically directed, Dr. H. Borobabu Singh, the Speaker of Manipur did not appear in Court on the date fixed. The plea taken in defence of Dr. H. Borobabu Singh's non-attendance based on immunity under Article 361 of the Constitution was rejected. The Government of India was directed to produce Dr. H. Borobabu Singh in Court on the next date of hearing, taking such steps as are necessary for the purpose. It was further clarified that the Government of India would be entitled to take all such steps, which are necessary including the use of minimum force which may be required, for compliance with the orders of the Supreme Court, directing the production of the contemner in Court.
In the present case, the conduct and disposition of the respondents is not one of defiance. Nor there seem to be any cogent reasons to even, prima facie, conclude that any effort has been made to defeat the orders of this Court. We have narrated in the earlier part of the order, the efforts made by the respondents to issue the corrigendum. It is a matter of record that the corrigendum has actually been issued. In our opinion, this is a clear case where exemption ought to have been granted.
We may also record here that we have not expressed any opinion on the submission of Mr. Shankardass based upon the judgment of the Bombay High Court in the case of Bengt Ingmar Eriksson (supra). The merits of the aforesaid submission will have to be addressed before the Learned Single Judge at the appropriate time.
This apart, we are of the opinion, that the learned Single Judge erred in law in not deciding the application for discharge submitted by the appellants. In our opinion, the issue needed to be decided forthwith, given the peculiar facts and circumstances of the case.
In such circumstances, we accept the appeals. It is directed that the presence of the alleged contemnors shall be exempted during the proceedings, till the final decision is taken by the learned Single Judge.
( Surinder Singh Nijjar, C.J.) I agree.
(Biswanath Somadder, J.)