Patna High Court
State Of Bihar And Ors. vs Nityanand Datkullyar on 22 November, 1996
Equivalent citations: 1997(1)BLJR520
Bench: Chief Justice, M.Y. Eqbal
JUDGMENT
D.P. Wadhwa, C.J and M.Y. Eqbal, JJ.
1. Heard Mr. V. Shivnath, learned Counsel appearing on behalf of the appellants and Mr. A.K. Sinha, learned Counsel appearing on behalf of the respondent on the question of maintainability of Letters Patent Appeal. On a preliminary objection raised by Mr. Sinha, learned Counsel for the respondent the matter was placed before us to consider the said question. It is worth to be mentioned here that initially the appellants filed Miscellaneous Appeal and a Single Judge of this Court by order dated 13.9.96 directed the office to put up the appeal before a Division Bench along with the maintainability matter. Subsequently, learned Counsel for the appellants converted the Miscellaneous Appeal into a Letters Patent Appeal.
2. The petitioner-respondent moved this Court in C.W.J.C. No. 3349 of 1994(R) with a prayer that the petitioner should be given time bound promotion in Senior Selection Grade in the pay scale of Rs. 3700-5000/- with effect form the 4th Pay Revision Committee Report. A writ of Mandamus was also sought for by the petitioner commending upon the respondent to implement the recommendation of the Departmental Promotion Committee dated 10.5.1992 on the ground, inter alia, that the petitioner-respondent was working on the date of filing of the writ application as Principal, Government Teachers' Training College, Ranchi and the petitioner was appointed in the Bihar Education Service Class II on or about 21.6.1961. The claim of the petitioner was refuted by the respondent by filing counter affidavit stating, inter alia, that the petitioner was given time bound promotion in the pay scale of Rs. 1350-2000/- with effect from 1.4.1981 and the petitioner was granted Junior Selection Grade with effect from 28.12.1987. It was further stated that the second time bound promotion in regard to Officers after completion of 25 years of qualifying service which was completed by the petitioner only on 21.6.1986. It was further stated that the case of the petitioner was under active consideration for promotion.
3. The writ application was disposed of by learned Single Judge of this Court in terms of judgment and order dated 25.5.1995. Learned Single Judge after considering the affidavit of the parties made the following direction :-
Considering the facts and circumstances of the case and the statement in the counter affidavit, this application is allowed with direction to the respondents to dispose of the representation of the petitioner and with direction to the respondents to consider the case of the promotion of the petitioner and grant of second time bound promotion/Senior Selection Grade with effect from 21.6.1986 in super-time scale vide Annexure-7. The representation should be decided within six weeks for production of this order.
4. The petitioner-respondent, however, moved this Court by making an application under Section 11 and 15 of the Contempt of Courts Act read with Article 215 of the Constitution of India alleging therein that the respondent-opposite parties have wilfully disobeyed the order passed by this Court inasmuch as despite the direction of this Court for giving second time bound promotion or Senior Selection Grade the same was not complied with. The said contempt application being M.J.C. No. 434 of 1995(R) was disposed of by learned Single Judge of this Court in terms of an order dated 11.7.1996 which is impugned in this appeal. Learned Single Judge after considering the affidavit and counter affidavit filed by the parties passed the impugned order. The operative portion of which is re-produced hereunder :-
On going through the order on which, this contempt petition is filed and also the contention of the parties, I am of the opinion that although direct direction is not there against the opposite parties to grant super-time scale to the petitioner on the basis of the recommendation of the D.P.C. but it was specifically ordered to consider his case in that light for the purpose of promotion. Such direction of consideration is nothing but a direction to the opposite parties to consider the case of the petitioner on the basis of the recommendation of the D.P.C. for the purpose of promotion. Now, the opposite parties can not take the plea that the recommendation of D.P.C. became infructuous long back the order was passed in the writ petition. Such plea has been taken at a belated stage and not in the reply to the show cause in the contempt petition at the earlier stage. It appears that some how the opposite parties are trying not to carry out the Court's, order. However, when no specific direct order is there for granting of promotion. I reiterate that the opposite party Nos. 2 and 3 have got the bounden duty to implement the Court's order with all its sanctity and not to obviate it by inventing clues for non-granting of promotion to the petitioner. When the petitioner had succeeded in the writ petition, his case does not stand on the other persons similarly situated as is stated in the counter affidavit and his case should be considered by the opposite parties for the purpose of promotion for giving him relief in money value. Although, the word consider is used above, it should be construed as a direction by this Court and the same should be done within two months next positively.
The petitioner is disposed of holding that the opposite party Nos. 1 and 2 have willfully tried to disobey this Court's order for which they are liable for punishment but a chance is given further to implement the order as mentioned above on compassionate ground.
5. Mr. A.K. Sinha, learned Counsel appearing on behalf of the respondent firstly submitted that the instant appeal is not maintainable against the impugned order by which the learned Single Judge refused to initiate a proceeding for contempt. Learned Counsel submitted that instead of initiating a proceeding of contempt or passing order for punishment for the alleging contempt learned Single Judge simply directed the appellants to implement the order passed in the writ application in its true perspective. According to learned Counsel no appeal, therefore, is maintainable either under Section 9 of the Contempt of Court's Act, 1971 or Letters Patent Appeal under the provisions of Letters Patent of the High Court of Judicature at Patna. The only remedy available to the appellants is to move the Supreme Court under Article 136 of the Constitution of India. Learned Counsel placed reliance on the decision of the Supreme Court rendered in D.N. Taneja v. Bhajan Lal 19898(3) SCC 26 and State of Maharashtra v. Mahboob S. Allibhoy and Anr. A.I.R. 1976 SC 2131.
6. On the other hand, Mr. V. Shivnath, learned Counsel appearing of behalf of the appellants submitted that although by the impugned order learned Single Judge did not punish the appellants and the rule of contempt has been discharged but the appellants have been given certain direction which was purported to have been done in exercise of is jurisdiction under the Contempt of Court's Act. Learned Counsel submitted that learned Single Judge while issuing the impugned direction must be deemed to have assumed jurisdiction under the Contempt of Court's Act. In that view of the matter even if the appeal in terms of Section 19(1) of the said Act is not maintainable the appellants have every right to prefer a Letters Patent Appeal in terms of Clause 10 of the Court's Letters Patent. In support of the submission learned Counsel relied upon a decision of a Bench of this Court in the case of Bihar State Electricity Board, Patna v. Sri Manmohan Prasad and Ors. 1990 BLT 69.
7. For better appreciation of rival contention of the parties it is worth to be looked into the relevant provision of appeal under the said Act. Section 19 reads as under:-
Section 19-(1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt-
(a) where the order or decision is that of a single judge, to a Bench of not less than two Judges of the Court;
(b) where the order or decision is that of a Bench, to the Supreme Court:
Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court.
(2) Pending any appeal, the appellate Court may order that-
(a) the execution of the punishment or order appealed against be suspended;
(b) if the appellant is in confinement, he be released on bail and
(c) the appeal be heard notwithstanding that the appellant has not purged his contempt.
(3) Where any person aggrieved by any order against which an appeal may be filed satisfies the High Court that he intends to prefer an appeal, the High Court may also exercise allow any of the powers conferred by Sub-section (2).
(4) An appeal under Sub-section (1) shall be filed-
(a) in the case of an appeal to a Bench of the High Court within thirty days;
(b) in the case of an appeal to the Supreme Court, within sixty days, from the date of the order appealed against.
8. It is also worth to be quoted Clause 10 of the Letters Patent of the High Court of Judicature at Patna which reads as under;-
And we do further obtain that an appeal shall lie to the said High Court of Judicature at Patna from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act and that notwithstanding anything hereinbefore provided an appeal shall lie of the same High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, of India Act, made on or after the first day of February, one thousand nine hundred and twenty nine, in the exercise of appellate jurisdiction in respect of a decree or order made in exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to us. Our heirs or successors in Our or Their Privy Council, as hereinafter provided.
9. From bare reading of the provisions of Section 19(1), (2) and (3), it emerges that the Act has provided for an appeal against a decision of the High Court, in exercise of its jurisdiction to punish for contempt and consequently, an appeal would lie only where the jurisdiction to punish for contempt has been exercised and the contempt has been punished and in no other case. If the High Court has refused to exercise its jurisdiction to punish for contempt such an order of the High Court cannot be said to be an order passed in exercise of its jurisdiction to punish for contempt. This question is no longer res interga in view of the catena authorities of the Apex Court. In the case of Baradakanta Mishra v. justice Gatikrushna Misra, C.J. of the Orissa High Court Apex Court observed as under :-
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. The exercise of the jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt, whether suo motu or o a motion or a reference. That is why the terminous a quo for the period of limitation provided in Section 20 is the date when a proceeding for contempt is initiated by the Court. Where the Court rejects a motion or a reference and declines to initiate a proceeding for contempt, it refuses to assume or exercise jurisdiction to punish for contempt and such a decision cannot be regarded as a decision cannot be regarded as a decision in the exercise of its jurisdiction to punish for contempt. Such a decision would not, therefore, fall within the opening words of Section 19, Sub-section (1) and no appeal would lie against it as of right under that provision.
10. In the case of Purshotam Dass Goel v. Hon'ble Mr. Justice B.S, Dhillon and Ors. the Apex Court while examining the ambit and the scope of appeal under Section 19(1) of the Act has observed as follows :-
It would appear from a plain reading of the section that an appeal shall lie to this Court as a matter of right from any order or decision of a bench of the High Court if the order has been made in the exercise of its jurisdiction to punish for contempt. No appeal can lie as a matter of right from any kind of order made by the High Court, in the proceeding for contempt. The proceeding is initiated under Section 17 by issuance of a notice.
11. In the case of D.N. Taneja v. Bhajan Lal 1988 (3) SCC 26, the Apex Court held as under:-
The right of appeal will be available under Sub-section (1) of Section 19 only against any decision or order of a High Court passed in the exercise of its jurisdiction to punish for contempt. In this connection, it is retirement to refer to the provision of Article 215 of the Constitution which provides that every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Article 215 confers on the High Court the power to punish for contempt of itself. In other words, the High Court derives its jurisdiction to punish for contempt from Article 215 of the Constitution. As has been noticed earlier, an appeal will lie under Section 19(1) of the Act only when the High Court makes an order or decision in exercise of its jurisdiction to punish for contempt. It is submitted on behalf of the respondent and, in our opinion rightly, that the High Court exercises its jurisdiction or power as conferred on it by Article 215 of the Constitution when it imposes a punishment for contempt. When the High Court does not impose any punishment on the alleged contemner, the High Court does not exercise its jurisdiction or power to punish for contempt. The jurisdiction of the High Court is to punish. When no punishment is imposed by the High Court it is difficult to say that the High Court has exercised its jurisdiction or power as conferred on it by Article 215 of the Constitution."
There can be no doubt that whenever a court, tribunal or authority is vested with a jurisdiction to decide a matter, such jurisdiction can be exercised in deciding the matter in favour or against a person. For example, a civil court is conferred with the jurisdiction to decide a suit; the civil court will have undoubtedly the jurisdiction to decree the suit or dismiss the same. But when a court is conferred with the power or jurisdiction to act in a particular manner, the exercise of jurisdiction or the power will involve the acting in that particular manner and in no other. Article 215 confers jurisdiction or power on the High Court to punish for contempt. The High Court can exercise its jurisdiction only by punishing for contempt. It is true that in considering a question whether the alleged contemnor is guilty of contempt or not, the court hears the parties and considers the materials produced before it and, if necessary, examines witnesses and, thereafter, passes an order either acquitting or punishing him for contempt. When the High Court acquits the contemnor, the High Court does not exercise its jurisdiction for contempt, for such exercise will mean that the High Court should act in a particular manner, that is to say, by imposing punishment for contempt. So long as no punishment is imposed by the High Court, the High Court cannot be said to be exercising its jurisdiction or power to punish for contempt under Article 215 of the Constitution.
12. Recently in the case of State of Maharashtra v. Mahboob S. Allibhoy and Anr. , the Apex Court reiterated the same view andheld as under :-
It is well known that contempt proceeding is not a dispute between two parties, the proceeding is preliminary between the court and the person who is alleged to have committed the contempt of court. The person who informs the court or brings to the notice of the court that anyone has committed the contempt of such court is not in the position of a prosecutor, he is simply assisting the court so that the dignity and the majesty of the court is maintained and upheld. It is for the court, which initiates the proceeding to decide whether the person against whom such proceeding has been initiated should be punished or discharged taking into consideration the facts and circumstances of the particular case."
But even if no appeal is maintainable on behalf of the person at whose instance a proceeding for contempt had been initiated and later drooped or whose petition for initiating contempt proceedings has been dismissed, is not without any remedy. In appropriate cases he can invoke the jurisdiction of this Court under Article 136 of the Constitution and this Court on being satisfied that it was a fit case where proceeding for contempt should have been initiated, can set aside the order passed by the High Court. In suitable cases, this Court has to exercise its jurisdiction under Article 136 of the Constitution in the larger interest of the administration of Justice.
13. Regard being had to the consistant view taken by the Apex Court we are of the firm opinion that the preliminary objection raised by the respondent with regard to maintainability of appeal under Section 19(1) of the said Act as initially filed by the appellants has to be upheld by holding that appeal filed by the appellants initially under Section 19(1) of the Contempt of Courts Act, was not maintainable.
14. We shall now consider whether an appeal under Clause 10 of the Letters Patent is competent against the impugned order passed by the learned Single Judge.
15. Mr. A.K. Sinha, learned Counsel appearing on behalf of the respondent submitted that Letters Patent Appeal is also not competent for the simple reason that when there is restricted scope of appeal under Section 19 of the said Act then the recourse cannot be had to any other law for maintaining the appeal. Learned Counsel further submitted that admittedly by the impugned order passed in the contempt proceeding no punishment was recorded against the alleged contemner and, therefore, the impugned order cannot be construed as "judgment" within the meaning of Clause 10 of the Letters Patent and, therefore, no appeal lay.
16. Mr. V. Shivnath, learned Counsel appearing on behalf of the appellants put reliance on a decision of this Court in the case of Bihar State Electricity Board, 'Patna v. Sri Monmohan Prasad and Anr. 1990 BLT 69. Learned Counsel submitted that the impugned order by which certain direction has been given shall be construed as judgment and thereby it shall be deemed that the court assumed jurisdiction under the provisions of Contempt of Court's Act.
17. In the case of Shah Babulal Khimji v. Jayaben D. Kania and Anr. , the Apex Court after reviewing the various judgments has held as under:-
Apart from the tests laid down by Sir White, C.J., the following consideration must prevail with the court:-
(1) That the trial Judge being a senior court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine orders passed by the trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or the other cannot be treated as a judgment otherwise the appellate court (Division Bench) will be flooded with appeals from all kinds of orders passed by the trial Judge. The Courts must give sufficient allowance to the trial Judge and raised a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice.
(2) That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings.
(3) The tests laid down by Sir White, C.J. as also by Sir Couch, C.J. as modified by later decisions of the Calcutta High Court itself which have been dealt with by us elaborately should be borne in mine.
18. On the basis of the said test provided by the Apex Court we are of the firm view that the expression "judgment" within the meaning of Clause 10 of the Letters Patent, implies an order which effectively decides some right or liability in controversy between the parties to the main proceedings, irrespective of the fact whether such an order is final or made at any interlocutory stage. The nature of the order has to be examined to ascertain whether there has been determination of any right of liability between the parties. As we have noticed, by the impugned order the learned Single Judge has not decided any right of the parties but reiterated that the opposite parties appellants have bounden duty to implement the order and direction passed in the original writ application.
19. Admittedly, the proceeding which was initiated by the respondent was to punish the alleged contemner appellants for having flouted the order of this Court under the Act. In the instant case learned Single Judge while disposing of the contempt proceeding neither decided the rights of the parties nor imposed any liability on them as the order cannot, therefore be said to be a judgment within the meaning of Clause 10 of the Letters Patent. Moreover, in view of the law laid down by the Supreme Court in the decisions (supra) we have no option but to hold that even the Letters Patent. Appeal is not maintainable against the impugned order.
20. Thus, for the reason aforesaid the appeal is held to be not maintainable and, accordingly, it is dismissed.