Calcutta High Court
Hooghly District Central Co-Operative ... vs Anoj Kumar Roy on 26 June, 1996
Equivalent citations: 1997CRILJ864
Author: Satyabrata Sinha
Bench: Satyabrata Sinha
JUDGMENT Satyabrata Sinha, J.
1. This appeal is directed against a judgment and order dated 10th February, 1995 passed by a learned Single Judge of this Court in Civil No. 6388 (W) of 1994, whereby and whereunder the said learned Judge directed the appellant to pay the arrears of salaries of the writ-petitioner respondent for the period from October, 1994 till date on the basis that he has been discharging his duties as senior Supervisor within a week therefrom. It was further directed that for the period June, 1994 till date all salaries in accordance with the applicable rules framed with regard to Hooghly District Central Co-operative Bank Limited shall be paid within a fortnight therefrom.
2. The fact of the matter lies in a very narrow compass.
3. The respondent Anoj Kumar Roy (hereinafter referred to as 'the writ-petitioner') filed a writ application in this Court questioning the order of transfer dated 23-5-1994 issued by the appellant bank, whereby and whereunder he was transferred from Head Office Loan section to the post of senior supervisor. Allegedly, on or about 4-6-94, he was released from loan section and thereafter the aforementioned writ application was filed on 27-6-94. In the said writ application an interim order was passed. A question arose as to whether the writ-petitioner having been released prior to filing of the said writ application the interim order passed by the writ Court was complied with or not. However, in the meanwhile another interim order was passed whereby and whereunder the writ-petitioner was asked to join the transferred post. Pursuant to or in furtherance of the said order, the writ-petitioner purported to have joined and submitted his joining report on 8-10-94 as contained in Annexure A/1 to the contempt application, wherein after his signature he put his designation as 'in charge, Loan Section'. As the said joining report was allegedly not accepted, a contempt application was filed by the writ-petitioner. However, the writ-petitioner purported to have submitted his joining report on 8-10-94 which was not accepted, whereafter the writ petitioner filed the contempt application. Another contempt application was also filed by the appellant for not submitting his joining report in terms of the interim order passed by the learned trial judge dated 3rd October, 1995. Both the aforementioned contempt applications were heard together and by reason of the impugned order, the learned Trial Judge disposed of the contempt applications in the manner as stated hereinbefore as keeping in view the controversy raised in the said writ application as to whether the writ-petitioner was entitled to submit his joining report as in charge loan section; Mr. Sitaram Bhattacharjee, learned Counsel appearing on behalf of the writ-petitioner, submitted that the said words may be treated as cancelled.
4. Mr. B.R. Bhattacharyya, learned Counsel appearing on behalf of the appellant, has raised a short question in this appeal. The learned Counsel submits that there exists a controversy as to whether till 8-10-94, the writ-petitioner at all worked or not. He further submits that there exists a controversy as to whether even after 8-10-94 he had worked lawfully so as to entitle him to receive the salary. The learned Counsel, however, submits that from the date of passing of the said order, namely 10-2-95, the writ-petitioner would be entitled to salary which is payable to him in accordance with law. According to the learned Counsel, the learned Trial Judge has acted beyond jurisdiction in passing the impugned order without considering the said contentions raised on behalf of the appellant and thus must be held to have granted a relief, which was beyond the scope and purview of the interim order which could be passed by the learned Trial Judge in law. Reliance in this connection, has been placed on Satyabrata Biswas v. Kalyan Kumar Kisku , and Pallav Goswami v. Ava Rani Sinha reported in (1996) 100 Cal WN 20. -
5. Mr. Sitaram Bhattacharjee, learned Counsel appearing on behalf of the writ-petitioner-respondent No. 1 however, raised a preliminary question that the order under appeal is not appealable. The learned Counsel submits that the decision of the Division Bench of this Court in Ashoke Rai v. Ashoke Arora reported in (1991) 96 Cal WN 278 and Ashis Chakrabarty v. Hindusthan Lever Sramik Karmachari Congress reported in (1991) 96 Cal WN 673 have not laid down the correct law in so far as the same is contrary to the decision of the Supreme Court in, D.N. Taneja v. Bhajanlal reported in 1988 (3) SCC 26. The learned Counsel contends that in fact the Division Bench in the aforementioned two cases have not applied the principle of law laid down in first BarodaKanta Mishra' s case reported in, , and second BarodaKanta Mishra's case reported in, . Mr. Bhattacharjee would urge that the Supreme Court has also clearly laid down in Md. Idrish's case reported in, , that no appeal would be maintainable. It was further submitted that the Division Bench in, (1991) 96 Cal WN 278 and (1991)96 Cal WN 673 wrongly proceeded on the basis that the question relating to maintainability of the appeal in Baroda Kanta Mishra's case (supra) would prevail over Taneja's case (supra), inasmuch as in BarodaKanta Mishra's case (supra) the question as regards the maintainability of the appeal was left open and thus the same cannot be said to be a decision binding upon the High Court. As regards the factual aspect, the learned Counsel has drawn our attention to various documents appended to the contempt application, writ-application and other affidavits for the purpose of showing that the writ-petitioner in fact joined as in charge loan section as far back as on 7-12-88 and thus it did not and does not lie in the mouth of the appellant to contend that the writ-petitioner had not worked in the said capacity. The learned Counsel further submits that even on and from 8-10-94, the writ-petitioner had been working in the said Bank and in fact, a disciplinary proceeding had been initiated against him for alleged misconduct during the aforementioned period. Mr. Bhattacharjee, would contend that the impugned judgment has been passed merely by way of remedial measure and not by way of punishment.
6. So far as the question of maintainability of appeal is concerned, it is not in dispute that an appeal lies before this Court, inter alia, under Section 19(1) of the Contempt of Courts Act, which reads thus:-
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.
Prior to the said Act came into force, there was only a discretionary right of appeal. There cannot be any doubt whatsoever that an appeal would not be maintainable as against an order giving direction as regards procedural aspect or when the Court refuses to exercise its jurisdiction. However, Sub-section (1) of Section 19 of the Contempt of Courts Act, clearly provides that an appeal lies as of right from any order or decision in exercise of its jurisdiction to punish for contempt. A right of appeal is a substantive right. It is now well settled principle of law that a right of appeal should not be curtailed and in case of any difficulty, the same should be interpreted in a way so as to uphold a right of appeal than to deny the same. Sub-section, (1) of Section 19 as noticed hereinbefore in no unmistakable terms uses the words, order or decision. Such order or decision may be by way of punishment or by way of remedial measure. While exercising its jurisdiction under the Contempt of Courts Act, the High Court may take recourse to, inter alia, one of the three following reliefs :-
(1) Punishing the contemnor which has to be done upon arriving at a finding that the contemnors are guilty of contempt of Court; (2) that although the contemnor is guilty of contempt of this Court, in view of the apology tendered by him or in view of other extenuating circumstances no punishment is inflicted and (3) upon infliction of the actual punishment it passed consequential order so as to bring back the parties to the same position as if the order passed by it has not been violated. The High Court, however, in exercise of its jurisdiction to punish for contempt cannot grant any relief to which the writ-petitioner was not entitled to in terms of the order, violation whereof had led to the initiation of the contempt proceeding. This aspect of the matter has been considered by the Hon'ble Supreme Court of India in Satyabrata Biswas v. Kalyan Kumar Kisku , (supra) wherein it was held that the High Court cannot go beyond the scope of its jurisdiction i.e. to decide question as to whether the parties have violated the interim order and any action taken in violation of the interim order would be illegal. The Division Bench of this Court also recently in Pallav Goswami v. Ava Rani Sinha reported in, (1996) 100 Cal WN 20, held that without finding the contemnor guilty of contempt of this Court, the contemnor cannot be directed to grant 'permit' to the writ-petitioner for the route in question.
7. The question as to whether an appeal is maintainable against such order, in our opinion, must be viewed from the aforementioned angle. In Baradakanta Mishra' case (supra) reported in, , the apex Court held that it is only when the Court decides to take action or initiate proceeding for contempt, it assumes jurisdiction for punishment for contempt. In that case the Court rejected a motion and declined to initiate a proceeding for contempt and thus it refused to assume to exercise jurisdiction to punish for contempt and in that situation, it was held that no appeal lie against such order. In second BaradaKanta Mishra's case (supra) reported in, , the apex Court held "only those orders or decisions in which some points have been decided or finding is given in the exercise of jurisdiction by the High Court to punish for contempt are appellable under Section 19 of the Contempt of Courts Act, 1971." It is, therefore, absolutely clear that once the Court exercise its jurisdiction and passes some order by way of or in lieu of punishment whether the said order is remedial or not would come within the purview of the words, "Orders or decision" as engrafted in Section 19(1) of the Act, upon which strong reliance has been placed by Mr. S. R. Bhattacharjee, in our opinion, has no application. In that case the Supreme Court was considering, as to whether an appeal is filed from the judgment of a learned Single Judge to the Division Bench, statutory right of appeal gets exhausted or not. Such is not the question here. In that case, evidently, the appeal was entertained as the learned Single Judge gave certain directions in addition to punishing the petitioner for contempt of Court. The apex Court on merit held that there had been a clear breach of undertaking given by the petitioner and therefore, the Single Judge was quite right to issue the aforementioned decision to close breach. In Taneja's case reported in, (1988) 3 SCC 26, the Apex Court was considering a matter relating to criminal contempt. In that case the Apex Court had taken into consideration the decision of the Supreme Court in Baroda Kanta Mishras's case reported in, , as would appear from paragraph 6 of the said judgment. In that case, the contemnor was not found guilty of contempt of the Court. The Supreme Court was, therefore, concerned with a situation as to whether even in such a situation appeal will lie or not. It was held that an appeal will not lie; but in such a case, it is open to the aggrieved person to move an application under Article 136 of the Constitution of India. It is now well known that a judgment cannot be read as a statute. A judgment is merely an authority for which it decides and not what can logically be deduced therefrom. It is also well settled that in view of the decision in the Regional Manager v. Pawan Kumar Dubey , that a little difference in facts or some additional facts may bring in a world of difference in granting relief.
8. In any event, in Taneja's case, 1988 (3) SCC 26, (supra) the Apex Court had clearly laid down that an order or a decision by the High Court in exercise of its jurisdiction under the said Act shall be appealable. When a direction is issued by the Court in a contempt proceeding, such directions are issued in exercise of the Court's jurisdiction under the said Act and thus, it cannot be said that Taneja' s case militates against the decision of the division benches of this Court in, (1991) 96 Cal WN 278 and (1991) 96 Cal WN 673. In the instant case certain directions were made by the learned Trial Judge in exercise of his jurisdiction under the Contempt of Courts Act. Such a direction has not been issued upon holding that the contemors are guilty of contempt of Court. But there cannot be any doubt that such direction has been issued in exercise of its jurisdiction under the Contempt of Courts Act. Thus, the said order or decision is not a consequential order. The said order or decision is an order passed under the Contempt of Courts Act, which adversely affects the appellant and thus, in a given case such direction may amount to a punishment.
9. For the reasons aforementioned, we are of the opinion that although the Division Bench in, (1991) 96 Cal WN 278 and (1991) 96 Cal WN 673, even assuming have committed a mistake as regards the interpretation of the decision of the Supreme Court in Barada Kanta Mishra's case (supra) as has been submitted by Mr. Bhattacharjee, the interpretation of the Division Bench as regards wording of the section as contained in Section 19(1A) of the Contempt of Courts Act, is binding upon us. The aforementioned decisions of this Court have been followed by different division benches in numerous cases. We do not find, in the facts and circumstances of this case, any reason to differ with the said decisions at this stage.
10. In this view of the matter, we are of the opinion that this appeal is maintainable.
11. So far as the merit of the matter is concerned, as indicated hereinbefore, various factual aspects, which gave rise to the controversy between the parties as regards the actual working by the petitioner upto 7-10-94 and from 8-10-94 till passing of the impugned order, the question arose was as to whether the writ-petitioner was lawfully working or not, involve disputed question and the same ought to have decided by the learned trial Judge. In any event, the learned trial Jude ought to have arrived at a finding of fact that the appellant is guilty of violation of the Court's order and in that view of the matter, the writ petitioner was entitled to a direction so as to bring back the parties to the same position as if the said interim order had not been violated or with a view to close the breach. The said question, in our opinion, can also be urged in the writ application. As the learned Trial Judge has not arrived at the said finding, we are of the opinion that the impugned judgment and order cannot be sustained.
12. We, therefore, allow this appeal set aside the judgment and order passed by the learned Trial Judge and remit the matter back to the said Court. However, keeping in view the admission made at the Bar that the writ-petitioner would be entitled to salary from 10-2-95 the appellants are directed to pay the said amount to the writ-petitioner forth with if not already paid.
13. In the facts and circumstances of this Case, there will be no order as to costs.
Sujit Kumar Sinha, J.
14. I agree.