Kerala High Court
K.R.Jyothilal Ias vs Mathai M.J on 20 December, 2013
Bench: Manjula Chellur, A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
FRIDAY, THE 20TH DAY OF DECEMBER 2013/29TH AGRAHAYANA, 1935
Con.APP(C).No. 3 of 2013 (S) IN Con.Case(C).142/2013
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ORDERT IN Con.Case(C) 142/2013
...............
APPELLANTS/RESPONDENTS IN CONTEMPT CASE:
1. K.R.JYOTHILAL IAS, SECRETARY TO GOVERNMENT
OF KERALA, GENERAL ADMINISTRATION DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. M.NANDAKUMAR IAS, COMMISSIONER OF RURAL
DEVELOPMENT, LMC COMPOUND, VIKAS BHAVAN,
THIRUVANANTHAPURAM-695 001.
BY ADVOCATE GENERAL SRI.K.P.DANDAPANI
SPL. GOVERNMENT PLEADER SMT.GIRIJA GOPAL
RESPONDENT/PETITIONER IN CONTEMPT CASE:
MATHAI M.J., ASSISTANT DEVELOPMENT COMMISSIONER,
RURAL DEVELOPMENT DEPARTMENT,
NOW ON DEPUTATION AS CHIEF EXECUTIVE OF
COIR WORKERS' WELFARE FUND BOARD,
HEAD OFFICE, ALAPPUZHA.
BY ADVS. SRI.ELVIN PETER P.J.
SRI.T.G.SUNIL (PRANAVAM)
SRI.K.R.GANESH
THIS CONTEMPT APPEALS (CIVIL) HAVING BEEN FINALLY HEARD ON
13-12-2013 ALONG WITH CONT. APPEAL(C) NO.4/2013 AND CONNECTED
CASES, THE COURT ON 20-12-2013 DELIVERED THE FOLLOWING:
Manjula Chellur, C.J & A.M.Shaffique, J.
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Cont. Appeal.Nos.3, 4, 5, 6, 11 & 12 of 2013
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Dated this the 20th day of December, 2013
JUDGMENT
Manjula Chellur, C.J.
In brief, the facts that led to filing of the above Contempt Appeals are as under: Appellants in Cont.Appeal Nos.3 and 4 of 2013 are serving as Secretaries to Government General Administration Department and Commissioner of Rural Development respectively. These Contempt Cases came to be filed complaining non compliance of the judgment of the learned Single Judge in W.P(C).No.27029/2008. Annexure-R1(a) is the proceedings already issued by the State Government based on the directions in the Writ Petition. The first appellant had filed a detailed affidavit before the learned Single Judge.
2. According to the appellants, a circular was issued as per Annexure-R1(b) based on Division Bench judgment of CAC 3/2013 & con. cases 2 this Court which resulted in repatriation of the respondent. Despite the above position, the learned Judge directed appearance of the appellants.
3. Cont.Appeal.No.5/2013 is in relation to an order dated 19.06.2013 directing the appellants, who were respondents before the learned Single Judge to appear before the Court on 28.06.2013. The contempt case was filed alleging violation of the directions in the judgment in W.P(C).No.38052/ 2007.
4. In this case also appellants placed reliance on Annexures-R1(a) and R1(b) as contended in Cont.Appeal. Nos.3 and 4 of 2013. In the above three Contempt Appeals the grounds raised by the appellants are as under: In the absence of any finding to the effect that the appellants had committed any wilful disobedience of the directions of the Court or had any contumacious conduct warranting initiation of contempt proceedings against them, there was no justification for the learned Single Judge issuing the CAC 3/2013 & con. cases 3 orders impugned directing appearance of the appellants officials.
5. They further contend that as per Annexure-R1(a) order the writ petitioners were repatriated to the parent department with a specific direction to report for duty. If any one is aggrieved they have to challenge Annexure-R1(a) and initiation of contempt proceedings is nothing but an abuse of process of law. They also explain the finding of Division Bench and contend that in the absence of automatic claim for promotion, Government was justified in passing Annexure-R1(a) order. With these averments, they sought for setting aside of the order dated 07.06.2013 so far as Cont.Appeal Nos.3 and 4 of 2013 and order dated 19.06.2013 so far as Cont.Appeal.No.5/2013.
6. Cont.Appeal.No.6/2013 is filed challenging order dated 27.06.2013 in I.A.No.476/2013 in Cont.Case(C) No.577/ 2013 on the file of the learned Single Judge. The order under challenge is as under:
CAC 3/2013 & con. cases 4 "I accordingly grant the Director of Higher Secondary Education time till 1.7.2013 to pass orders as directed by this Court in the interim order dated 27.3.2013 in W.P(C). No.4053 of 2013, failing which he shall not draw salary and allowances applicable to the post of Director of Higher Secondary Education."
7. An interim order came to be passed in W.P(C).No. 4053/2013 dated 27.03.2013 directing the Director of Higher Secondary Education, Thiruvananthapuram to approve the appointment of the writ petitioners and pass orders within two weeks. A detailed counter affidavit seeking vacation of interim order was also filed, but it was not considered. However, when contempt application alleging non compliance of interim order came to be filed, the appellants herein personally appeared before the learned Single Judge and filed affidavit explaining the matter and also produced orders sanctioning the post as directed in the interim order. The learned Judge was not satisfied and directed the Director to pass revised order, failing which he was injuncted from drawing salary as CAC 3/2013 & con. cases 5 Director of Higher Secondary Education. Contending that the order impugned was unwarranted and without jurisdiction, Director and Deputy Regional Director approached this Court seeking setting aside of the order.
8. Cont.Appeal.No.11/2013 came to be filed challenging the order dated 04.09.2013 in Cont.Case.(C)No. 834/2013, which reads as under:
"The 1st respondent is present. Counter affidavit filed. According to the learned Counsel for the 1st respondent, a petition for modification of the interim order that has been passed, is pending consideration of another Bench of this court. Therefore post this case on 24.09.2013. The 1st respondent to be present in court on that day."
9. According to appellant, the order of the learned Single Judge compelling personal appearance continuously in a case in the interim order which stands vacated under Article 226(3) of the Constitution is without any justification. The issue relates to implementation of Annexures-B and C orders interfering with Annexure-A transfer order issued by the appellant. Five Writ Petitions CAC 3/2013 & con. cases 6 are pending on the said subject matter. Annexure-E is the interim order passed on merits after hearing the parties. At the same time, Annexure-F, an ex-parte order, came to be passed, which is contrary to Annexure-E. Hence, appellant filed I.A.No.1031/2013 to vacate the interim order, which was pending. Under those circumstances, there was no justification for compelling the appellant to appear in person on all subsequent posting dates as per the impugned order dated 04.09.2013.
10. Cont.AppealNo.12/2013 came to be filed by the appellant herein who is holding the office of Deputy Secretary, Ministry of Home Affairs, Government of India, New Delhi. The gist of the appeal is as under:
11. A contempt petition came to be filed reporting non compliance of the judgment in W.P.(C)No.15021/2011 dated 10.11.2011. As per the judgment, family pension sanctioned to the petitioner under SSS Pension Scheme through Exhibit P6 order with retrospective effect is to be paid. This CAC 3/2013 & con. cases 7 means from 05.05.1998 onwards at the rates prevailing from time to time pension has to be paid. By another judgment in W.P.(C)No.30387/2009, dependent family pension was ordered to be paid from the date of judgment. However, in the present petition, claim for arrears of pension from the date of application was ordered in spite of raising objections. Meanwhile, an appeal came to be filed in November 2013. The writ petitioner approached the learned single Judge in the contempt petition complaining non compliance of the order dated 04.12.2013. Learned single Judge directed appearance of the appellant before court. This is under challenge.
12. According to the appellant, the direction of the learned single Judge is not justified. The learned single Judge also directed that if compliance of the directions in the original judgment is not reported on or before 17.12.2013 personal appearance is ordered. According to the complainant, this direction of the learned single Judge is CAC 3/2013 & con. cases 8 prejudicial when pension has to be sanctioned in accordance with the directions in Kaushalaya Devi's case (Union of India and another v. Kaushalaya Devi ((2007) 9 SCC 525)) on the file of the Apex Court. Placing reliance on State of Gujarat v. Turabali Gulamhussain Hirani and another ((2007) 14 SCC 94), he contends that summoning of the senior officials like Secretaries should not be passed lightly, therefore he seeks setting aside the order of the learned single Judge dated 04.12.2013.
13. Advocate Sri.Elvin Peter addressed arguments on non maintainability of the appeal. We also heard learned Advocate General appearing for the appellants in Cont. Appeal.Nos.3, 4, 5 and 6 of 2013 and learned Senior Counsel Sri.Jaju Babu appearing for the appellant in Cont. Appeal.No.11/2013. In all the appeals the common objection raised by the respondents is non maintainability of appeal.
14. Advocate Sri.Elvin Peter, placing reliance on Midnapore Peoples' Coop.Bank Ltd. and others v. CAC 3/2013 & con. cases 9 Chunilal Nanda and others ((2006) 5 SCC 399) contends that Section 19 of the Contempt of Courts Act, 1971 provides for an appeal under said Section only against the final orders passed in contempt proceedings. Section 19 reads as under:
19. Appeals.- (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 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.
CAC 3/2013 & con. cases 10 (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 all or 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."
According to him, any such direction or decision made by the High Court in contempt proceedings on the merits of a dispute between the parties unless incidental to or inextricably connected with the order punishing for contempt is not in the exercise of jurisdiction to punish for contempt, therefore, such order is not appealable. Therefore, any other order unless it is made under the above mentioned circumstances is not appealable under Section 19 of the Act. According to him, directions issued by the learned Single Judge to appear before the Court is CAC 3/2013 & con. cases 11 neither a direction nor a decision in contempt proceedings touching the merits of a dispute between the parties, therefore, in the absence of such direction being incidental to or inextricably connected with the order punishing for contempt cannot be questioned in appeal under Section 19 of the Act. He specifically refers to paragraph 11 of the judgment, which reads as under:
"11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarized thus :
I. An appeal under Section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt.
II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution.
III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters CAC 3/2013 & con. cases 12 incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties.
IV. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of 'jurisdiction to punish for contempt' and therefore, not appealable under section 19 of CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under section 19 of the Act, can also encompass the incidental or inextricably connected directions.
V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases).
The first point is answered accordingly."
15. He refers to Section 5 (i) of the Kerala High Court Act, which reads as under:
"5. Appeal from judgment or order of CAC 3/2013 & con. cases 13 Single Judge.- An appeal shall lie to a Bench of two Judges from--
(i) a judgment or order of a Single Judge in the exercise of original jurisdiction;"
He also refers to a Full Bench decision reported in K.S.Das v. State of Kerala (1992 (2) KLT 358 (FB)) to explain what order is appealable, wherein one of the four Judges dissented from the opinion of other three Judges. Justice Jagannadha Rao, the then Chief Justice concluded as under:
"The word 'order' in S.5(i) of the Kerala High Court Act, 1958 includes, apart from other orders, orders passed by the High Court in Miscellaneous Petitions filed in the Writ Petitions provided the orders are to be in force pending the Writ Petition. An appeal would lie against such orders only if the orders substantially affect or touch upon the substantial rights or liabilities of the parties or are matters of moment and cause substantial prejudice to the parties. The nature of the 'order' appealable belongs to the category of 'intermediate orders' referred to by the Supreme Court in Madhu Limaye's case, AIR 1978 SC 47. The word 'order' is not confined to 'final order' which disposes of the Writ Petition. The 'orders' should not, however, be ad-interim orders in force pending the Miscellaneous Petition or orders merely of a procedural nature. But this does not mean that the Division Bench hearing the appeal against such 'orders' will have to CAC 3/2013 & con. cases 14 admit the appeal or have to modify the impugned order or set it aside the same in every case. There is difference between the question whether an appeal lies to a Division Bench and as to the scope of interference. Normally, discretionary orders are not interfered with unless the impugned orders are without jurisdiction, contrary to law, or are perverse, and they also cause serious prejudice to the parties in such a manner that it might be difficult to restore the status quo ante or grant adequate compensation. The idea is to provide an internal remedy in such cases without compelling the parties to go all the way to the Supreme Court under Art.136 of the Constitution of India or increase the burden of that court unnecessarily. It will, however, be incumbent upon the appellant to serve the counsel who has appeared before the single Judge for the opposite party (unless of course the counsel's authority has been revoked or he is dead) and when such appeals against orders come up in appeal for admission before the Division Bench, it will be open to the Bench to treat such service as mentioned above as sufficient service on the parties (unless the court, in the circumstances of the case, thinks otherwise) and to dispose of the appeal either at the stage of admission or soon thereafter, after considering the facts of the case or subsequent events. This would generally obviate admission of the Writ Appeals, issue of notice and the passing interim orders pending Writ Appeals."CAC 3/2013 & con. cases 15
16. Justice Paripoornan dissenting with the said opinion, opined as under:
"A particular state of law prevailing in a State for a period of time, wherein the people of that area have adjusted themselves with that law in their daily life, should not be ordinarily upset except under compelling circumstances. The plea for reconsideration of the earlier decisions can be entertained only if the Court is satisfied that there are compelling and substantial reasons therefor. In questions involving construction of statutory or constitutional provisions, two views are often reasonably possible. Even if an alternate view is possible, since the earlier decision held the field for a long time and had regulated the procedure and no decision had taken a contrary view, the reconsideration for upsetting the earlier view will not ordinarily be proper, unless there are compelling and substantial reasons therefore and it is in the interest of the public good. The requirement of public interest should be considered in disturbing a question of law which held the field for a long time. In the matter of a local statute, the view taken by the High Court over a number of years would normally be upheld and will not be disturbed even by the superior Court. The word 'order' occurring in S.5(i) of the Act should be construed in the context in which it occurs and it should necessarily take its colour from the word 'judgment'; it can refer only to a final adjudication. In other words, the order should effectively dispose of the cause itself (a final order) and not merely an CAC 3/2013 & con. cases 16 interlocutory order and the fact that the word 'order' or 'judgment' can also be construed in a wide sense as it was done in other statutes or in other context, cannot be a reason to import the said meaning in the context of S.5
(i) of the Act. At any rate, it cannot be said, that the above consistent view taken by this Court in the Full Bench decision, Division Bench decisions and in other unreported cases is perverse or patently wrong; pubic policy and public interest do not favour the disturbance of the above definite position in law which held the field for fairly a long time.
It is in consonance with high public policy that unnecessary, frivolous and avoidable litigation should be discouraged and there should be certainty, finality and speed, by which the litigation is brought to a close. Law should be clear and definite, so that persons concerned can adjust their rights. It should not be vague or uncertain. If so, it will open the floodgates of litigation and expose persons to unnecessary, vexations and meaningless litigation. Modern thinking as reflected in legislations and by Jurists, is to minimise the number of appellate forums or stages in litigation and to speed up the judicial process and bring down litigations. These aspects which reflect the public policy and public interest will be defeated, if we interpret the word 'order' in S.5(i) of the Act, to include 'any order' or orders which substantially affect or touch upon substantial rights or liabilities of the parties etc., which term itself may call for interpretation from time to time and throw persons into an area of uncertainty and endless, futile litigation."
17. Justice Varghese Kalliath, concurring with the CAC 3/2013 & con. cases 17 findings of the Hon'ble Chief Justice, analysed as under:
"The power of appeal under S.5(i) against an interlocutory order has to be decided fundamentally not based on the fact whether the original proceedings are pending or not, but on other considerations which I have already discussed in the light of the observations of the Supreme Court. I agree with great respect the view taken by His Lordship Chief Justice in respect of the ratio of the decision in 1985 KLT 201. The provisions of a statute have to be construed by examining every word of the statute in the setting and context of the words used in that particular provisions which come up for interpretation. If the language of the provision permits them there is no reason for me to think that the Kerala Legislature had deviated from the position regarding appeals in the other like States and to limit the appeal to Division Bench in original proceedings only to a final decision disposing of the original proceedings. I feel that an addition of a word final to precede the word order in the light of the history of the legislation will be attributing an intention to the legislature which would produce an unreasonable result and so, the principle "an intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available" is applicable. The principle is that in attempting a statutory construction, the object of the statute or the provisions also has to be kept in mind and statutes pertaining to the right of appeal should be given a liberal construction in favour of the right, since they are remedial. Substance in the argument that a liberal CAC 3/2013 & con. cases 18 construction holding that an appeal would lie against interlocutory orders affecting rights and liabilities of the parties under S.5(i) would open floodgates supported by the supplementary argument that there is a remedy provided under Art.136 for challenging an interlocutory order in a pending proceeding under Art.136 of the Constitution. A court is not justified in interpreting a legal term.... so as to deny appeals even against urgent orders to litigants having genuine grievances so as to make the scapegoats in the guise of protecting vexatious appeals. In such cases, a just balance must be struck so as to advance the object of the statute and give the desired relief to the litigants, if possible. To shirk the burden and push it on to the Supreme Court, at any rate, will amount to a sin without a name considering the heavy filings and pendency of appeals before the Supreme Court. We feel that we have no justification to base our interpretation on the feeling and faith that the litigant has got a remedy if he is aggrieved by an interlocutory order under Art.136 of the Constitution. An appeal is maintainable against an interlocutory order provided it is a final order on the miscellaneous petitions in the sense that it is not an ad interim order if the order substantially affects or touches upon substantial rights and liabilities of the parties or are matters of moment or matters which would cause real legal prejudice to the parties, even though the parent original proceedings is alive. The nature of the order appealable can be classified in the category of "intermediate orders", within that frame in which the Supreme Court has used that term CAC 3/2013 & con. cases 19 in Madhu Limaye's case (AIR 1978 SC 47). It is not necessary that to attract S.5(i) to maintain an appeal that the order should have the label of a final order in the sense that it disposes of the original proceedings under Art.226 of the Constitution."
18. Learned Advocate General arguing for the appellants in Cont.Appeal.Nos.3, 4, 5 and 6 of 2013, relies upon the case of U.P.State Sugar Corpn.Ltd and another v. Sant Raj Singh and others ((2006) 9 SCC 82). With reference to the controversy of orders touching merits, he places reliance on the decision reported in Union of India and another v. P.M.Rangaswami ((2007) 15 SCC 683) explaining what amounts to wilful disobedience, states that direction for reconsideration of respondent's case for promotion according to his original seniority and when Government did not recommend him for promotion even on reconsideration held, Central Administrative Tribunal was not justified in holding that contempt had been committed. It was further held that if respondent had any grievance against his promotion, it was open to him to assail the same CAC 3/2013 & con. cases 20 in appropriate proceedings. He also places reliance on a Division Bench judgment in Antony v Rana (2004 (3) KLT 1010) to contend that Division Bench alone can initiate contempt proceedings by taking cognizance of the contempt petitions and learned Single Judge in the case of a civil contempt has only to hold a preliminary enquiry to find out whether any prima facie case is made out or not regarding commission of contempt and this preliminary enquiry does not include interim orders of the nature which are impugned in the above appeals. According to him, once the learned Single Judge is satisfied in the preliminary enquiry that contempt is committed, he simply has to refer the matter to the Division Bench for a preliminary hearing, which alone will take cognizance of the contempt petition. Therefore, none of the directions issued by the learned Single Judge as interim orders are warranted in a preliminary enquiry to find out whether there is a prima facie case or not so far as complaint of contempt.
CAC 3/2013 & con. cases 21
19. Learned Senior Counsel Sri.Jaju Babu referring to Saranya Zaveri v. Kamadon Academy Pvt. Ltd. (2006(1) KLT 994) contended that appeal will lie against an interim order passed in contempt of court case in pursuance of the Kerala High Court Act providing for an appeal under Section 5(i) of the Act to a Division Bench in exercise of original jurisdiction. In contempt proceedings at times it may be necessary to pass interlocutory orders for preservation of rights of parties and in such cases appeal is maintainable.
20. Sri.S.Krishnamoorthy learned counsel appearing for the petitioner in Cont.Appeal No.12/2013 placed reliance on paragraphs 7, 9, 11, 12 and 13 of the decision in Turabali Gulamhussain Hirani's case (supra). Their Lordships held as under:
"7. There is no doubt that the High Court has power to summon these officials, but in our opinion that should be done in very rare and exceptional cases when there are compelling CAC 3/2013 & con. cases 22 circumstances to do so. Sub summoning orders should not be passed lightly or as a routine or at the drop of a hat.
9. The judiciary must have respect for the executive and the legislature. Judges should realise that officials like the Chief Secretary, Secretary to Government, Commissioners, District Magistrates, senior police officials, etc. are extremely busy persons who are often working from morning till night. No doubt, the ministers lay down the policy, but the actual implementation of the policy and day-to-day running of the Government has to be done by the bureaucrats, and hence the bureaucrats are often working round the clock. If they are summoned by the Court they will, of course, appear before the Court, but then a lot of public money and time may be unnecessarily wasted. Sometimes the High Court Judge summon high officials in far-off places like Director, CBI or Home Secretary to the Government of India not realising that it entails heavy expenditure like arranging of a BSF aircraft, coupled with public money and valuable time which would have been otherwise spent on public welfare.
11. We do not mean to say that in no circumstances and on no occasion should an official be summoned by the Court. In some extreme and compelling situation that may be done, but on such occasions also the senior official must be given proper respect by the Court and he should not be humiliated. Such senior officials need not be made to stand all the time when the hearing is goin on, and they can be offered a chair by the Court to sit. They need to stand only when answering CAC 3/2013 & con. cases 23 or making a statement in the Court. The senior officials too have their self-respect, and if the Court gives them respect they in turn will respect the Court. Respect begets respect.
12. It sometimes happens that a senior official may not even know about the order of the High Court. For example, if the High Court stays the order of the Collector of suspension of a Class III or Class IV employee in a government department, and certified copy of that order is left with the clerk in the office of the Collector, it often happens that the Collector is not even aware of the order as he has gone on tour and he may come to know about it only after a few days. In the meantime a contempt of court notice is issued against him by the Court summoning him to be personally present in Court. In our opinion, this should not be readily done, because there is no reason why the Collector would not obey the order of the High Court. In such circumstances, the Court should only request the Government Counsel to inform the Collector concerned about the earlier order of the Court which may not have been brought to the notice of the Collector concerned, and the High Court can again list the case after a week or two. Almost invariably it will be found that as soon as the Collector comes to know about the stay order of the High Court, he orders compliance with it.
13. In the present case, we find no occasion or reason for the learned Judge to summon the Chief Secretary or the Law Secretary by the impugned order. If the learned Judge was CAC 3/2013 & con. cases 24 concerned about the lack of enough stenographers in the office of the Public Prosecutor he could have called the Advocate General or Govt. Advoate to his chamber and have asked him to convery the Court's displeasure to the Government, but where was the need to summon the Chief Secretary or Law Secretary? Hence, we set aside the impugned interim order dated 11.04.2007 and condone the delay of 25 days in filing the appeal before the High Court. The High Court may now proceed to hear the criminal appeal in accordance with law. The appeal is allowed."
From reading of the principles laid down in the various decisions referred to above, one has to see what exactly is the procedure contemplated in the statute, i.e. Contempt of Courts Act and also the Rules framed thereunder by High Court of Kerala.
21. Rule 6 provides that Division Bench alone can take cognizance of the contempt proceedings. Rule 8 provides for preliminary hearing and notice when the matter is placed for preliminary hearing before the Division Bench. Rule 13 provides for hearing of the case and trial, followed by Rule 15 indicating the procedure for trial. So far as CAC 3/2013 & con. cases 25 present cases are concerned, by virtue of proviso (2) to Rule 6, civil contempt is to be placed before the Judge who passed the judgment, decree, direction or order etc. Once the Judge is satisfied that no prima facie case is made out, the proceedings be dropped or dismiss the petition. Learned single Judge in this process is required to first look into the matter in order to find out whether there is prima facie case against the respondent or not. Then alone the matter has to be placed before the Division Bench to take cognizance in the matter. Prior to introduction of second proviso to Rule 6, even in cases where civil contempt was alleged in respect of a judgment, decree etc. the matter was being posted before a Division Bench. By amending this Rule, where civil contempt is alleged in respect of a judgment, decree, direction etc. of a learned single Judge, the matter is placed before that Judge who holds a preliminary enquiry. After an enquiry, if no prima facie case is made out or it is not expedient to proceed with the matter further, learned Judge CAC 3/2013 & con. cases 26 can dismiss the petition. If a prima facie case is made out as per the opinion of the learned Judge, in the absence of respondent not tendering any unconditional apology or if tendered; in the opinion of the learned single Judge cannot be accepted, then the learned single Judge may direct that the matter be posted before the Division Bench dealing with contempt petitions. The learned single Judge is required to hold a preliminary enquiry, only to find out whether there is or not a prima facie case. He shall not take cognizance in the matter. He directs the matter to be posted before the Division Bench only if he finds that there is a prima facie case. Only after learned single Judge finds that a prima facie case is made out, the petition would be placed before a Division Bench for a preliminary hearing as per Rule 8 of the Contempt of Courts (CAT) Rules. Again, at the time of preliminary hearing as per sub rule (ii) of Rule 8, Division Bench also has to satisfy itself whether a prima facie case is made out against the respondent. Only when the Division CAC 3/2013 & con. cases 27 Bench satisfies that a prima facie case is made out, notice to the respondent shall be issued. When notice is issued to the respondent, it shall be served in the manner specified in the Contempt Rules. On service of notice as per Rule 10 and the format provided therein, the respondent shall appear in person before the court on the first day of hearing or when the case stands posted unless he is exempted from such appearance. This exemption to appear must be an order of the court. Once reply is filed, Division Bench shall consider the same and proceed further. After hearing the parties, it is permissible for the Division Bench either to proceed with the matter in case prima facie case is made out by framing charges against him only after being satisfied that there is a prima facie case as required under Rule 13 of the Rules. In other words, prior to issuance of notice, Division Bench must satisfy that there is a prima facie case and before framing charges, on consideration of the matter, including the reply to be filed by the respondent contemnor, the CAC 3/2013 & con. cases 28 Division Bench has to ponder over the matter to find out whether a prima facie case is made out or not. The rules framed by the High Court mentioned above explicitly make the position clear that Division Bench alone has to take cognizance of the contempt petition and the learned single Judge, in the case of a civil contempt, has only to hold a preliminary enquiry to find out whether a prima facie case is made out or not. Further, second proviso enables the learned single Judge to drop the proceedings, if, in his opinion, no prima facie case is made out. If the opinion is otherwise, the matter will be posted before the Division Bench for a preliminary hearing.
22. Reading of Rule 6 and other relevant rules explicitly clarifies the position that learned single Judge has to hold a preliminary enquiry to decide whether a prima facie case is made out or not and nothing more is required. This finding of the learned single Judge does not preclude the Division Bench from proceeding with the trial as the CAC 3/2013 & con. cases 29 rules make it clear that Division Bench also has to find out a prima facie case at the time of hearing. Issuance of notice to the contemnor by the learned single Judge to hold preliminary enquiry is only for a short exericse whether a prima facie case is made out or not.
23. Rules 6 and 9 read together does not make the Division Bench sitting in appeal over the decision of the learned single Judge from holding a preliminary enquiry. Therefore, the Division Bench has to follow the procedure as contemplated under Rule 9 once the matter is placed before the Division Bench by a learned single Judge. Mere issuance of notice under Rule 6 does not amount to initiation of contempt proceedings. It is only a Division Bench which can initiate contempt proceedings and if it finds no prima facie case is made out or if it differs in its opinion from that of the learned single Judge with regard to the prima facie case, it can dismiss the contempt petition or drop the proceedings. Therefore, though the order merely CAC 3/2013 & con. cases 30 initiating the proceedings was not appealable under Section 19 of the Contempt of Courts Act, we have to examine the nature of interim orders either directing the respondent to appear before the learned single Judge or any other direction like restraining the respondent from receiving the salary or otherwise. It is to be considered with reference to Section 5(i) of the High Court Act. If the order was of a learned single Judge and there is a provision for intracourt appeal, if the High Court decides an issue or makes any direction in a contempt proceedings relating to the merits of the dispute between the parties, the aggrieved person is not without a remedy. The Full Bench decision of this Court in K.S. Das further lays down that the word order in Section 5(i) includes apart from other orders passed by the High Court in miscellaneous petitions could also be orders on matters of moment and orders which cause substantial prejudice to the parties. Therefore, an interim order, even if it does not touch upon the substantial rights or liabilities of CAC 3/2013 & con. cases 31 the parties, if it pertains to the matters of moment and cause substantial prejudice to the parties, such order also becomes an appealable order.
24. In all the above contempt matters, except one matter in Cont.AppealNo.6/2013 the interim directions are for appearance of the respondents before court. In all the cases, the respondents are officials from Government Departments either senior or otherwise. The decision in Turabali Gulamhussain Hirani's case (supra) clearly lays down the proposition that summoning of senior officials like Secretaries and Directors of Government should be done in rare and exceptional cases and only under compelling circumstances. The word moment means 'a particular occasion'. Summoning of respondents to appear in person in order to hold an enquiry as contemplated under second proviso to Rule 6 of the Contempt Rules of the High Court does not require presence of the respondent for the purpose of satisfaction that a prima facie case is or not made out. CAC 3/2013 & con. cases 32 One has to necessarily remember summoning of Government officials also burdens public exchequer.
25. So far as the directions against the respondent in a contempt petition not to draw the salary if directions are not complied with is nothing but a prejudicial order which is appealable.
26. In all the above cases, as contemplated under second proviso to Rule 6, learned single Judge has to find out whether a prima facie case of contempt is made out or not and then refer the matter to a Division Bench which alone can take cognizance and proceed with the matter further. High Court Rules clearly indicate, after taking cognizance when notice is issued by the Division Bench, unless the respondent contemnor is exempted from personal appearance, he should necessarily appear before the court. Till then there is no requirement for the appearance of the respondent contemnor especially for the limited purpose of making an enquiry whether a prima facie CAC 3/2013 & con. cases 33 case is made out to refer the matter to a Division Bench or not.
In that view of the matter, for the reasons mentioned above, all the appeals are allowed setting aside the orders of the learned single Judge.
Manjula Chellur, Chief Justice A.M.Shaffique, Judge vgs/tkv