Jammu & Kashmir High Court - Srinagar Bench
State Of J&K; And Others vs Mohammad Tayoub Leharwal And Anr. on 31 January, 2018
Bench: Sanjeev Kumar, M.K.Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
LPASW No.267/2017
MP No. 1/2017
Date of order: 31.01.2018
State of J&K and others v. Mohammad Tayoub Leharwal and anr.
Coram:
Hon'ble Mr. Justice Sanjeev Kumar, Judge
Hon'ble Mr. Justice M.K.Hanjura, Judge
Appearing Counsel:
For Appellant(s) : Mr. Fayaz Ahmad Mir, Dy. AG.
For Respondent(s) : Mr. B.A.Bashir, Sr. Advocate for R-1.
(i) Whether to be reported in : Yes
Law Journals etc.
(ii) Whether approved for publication : Yes/No
in Media/Press.
Sanjeev Kumar-J
1. Respondent No.1 approached this Court through the medium of SWP No.2488/2012 seeking, inter alia, a direction to the appellants herein to consider his case for being appointed as Junior Yatchman. He sought consideration of his case on the analogy of one Sh. Sonaullah Buhroo who, as claimed by respondent No.1, was appointed as Senior Yatchman under similar set of circumstances. This petition was disposed of by a learned Single Judge of this Court vide its judgment dated 01.03.2016 by directing the appellants to consider the case of respondent No.1 for his adjustment against the available post of Junior Yatchman on the analogy of Sh. Sonaullah Buhroo. The decision in this regard was directed to be taken within a period of one month from the date copy of the judgment was served upon the appellants. The judgment aforesaid, however, was not implemented by the appellants despite the lapse of more than one month as stipulated in the judgment, the petitioner moved before the learned Single Bench of this Court by way of a contempt petition registered as Contempt(SWP) No.103/2017. On being put on notice, the appellants appeared and filed their LPASW No.267/2017 Page 1 of 7 statement of facts. As is appropriately noted by the learned Single Judge, the appellants instead of reporting compliance of the judgment dated 01.03.2016 justified the non-consideration of the claim of respondent No.1 on the plea that the post of Junior Yatchman is a post which is required to be filled up 100% by direct recruitment and that the same can only be filled up on the recommendations of the Jammu and Kashmir Services Selection Board. Reliance was placed upon the Jammu & Kashmir Tourism (Subordinate) Services Recruitment Rules, 1990. It was also pleaded by the appellants before the Contempt Court that the consideration order passed on 28.05.2016 complies with the judgment alleged to be violated by the appellants and, therefore, no contempt was made out. The Contempt Court considered the stand taken by the appellants in the statement of facts justifying the consideration order dated 28.05.2016 whereby the claim of respondent No.1 had been rejected and came to the conclusion that the case of respondent No.1 for his adjustment as Junior Yatchman should have been considered following the analogy adopted in the case of Sh. Sonaullah Buhroo and not by any reference to the Service Recruitment Rules. The Contempt Court, thus, found that prima facie appellant No.3 was in contempt for violating the orders of the Court and therefore, proceeded to frame the Rule. Appellant No.3 was, thus, put on notice to show cause as to why he be not punished for wilful disobedience of the Court orders. The contempt Court further directed appellant No.3 to remain present on each date of hearing of the case till the contempt petition was taken to its logical conclusion. Appellant No.3 was also directed to ensure that order passed by the learned Writ Court of which disobedience was alleged by respondent No.1 was implemented. It is this order passed by the Contempt Court on 28.11.2017 which is called in question by the appellants through the medium of instant Letters Patent Appeal.
LPASW No.267/2017 Page 2 of 72. Mr. Fayaz Ahmed Mir learned Deputy Advocate General, appearing for the appellants, would submit that the order impugned could not have been passed by the Contempt Court, more so when the judgment sought to be complied with had been fully complied with and a consideration order in terms thereof had been passed. Learned counsel, in particular, would draw our attention to the consideration order dated 28.05.2016 and submit that the consideration in terms of the judgment was accorded to respondent No.1 and his case for appointment against the post of Junior Yatchman was rejected on valid and justified grounds. He, therefore, submits that in the light of statement of facts filed by the appellants and passing of the consideration order in terms of the judgment dated 01.03.2016, there remains nothing to be adjudicated upon in the contempt petition and therefore, the same should have been closed by the Contempt Court.
3. Per contra, Sh. B.A.Bashir, learned senior counsel appearing for respondent No.1, would raise a preliminary objection with regard to the maintainability of this appeal. Learned senior counsel would submit that under the Jammu & Kashmir Contempt of Courts Act, 1997 (hereinafter referred to as "the Act"), appeal in terms of Section 19 is provided only against an order or decision of the High Court passed in the exercise of its jurisdiction to punish for contempt. He would, therefore, submit that it is only an order imposing punishment for contempt that is made appealable under Section 19 of the Act and no other order. He would further submit that even the letters patent appeal under Clause 12 of the Letters Patent would not be maintainable against the order impugned for the reason that the order impugned is only an interlocutory order and does not decide anything on merits. He would further urge that given the nature of the order passed by the Contempt Court which is impugned in this appeal, it cannot be said that the Contempt Court while framing the Rule against the appellant No.1 has made LPASW No.267/2017 Page 3 of 7 observations which travelled beyond the scope of the order alleged to be disobeyed. He would further submit that the appellant No.3 has only been put to notice to show cause as to why he be not punished and appellants have ample opportunity to explain their position before the Contempt Court. In a nutshell, learned senior counsel contended that this appeal is neither maintainable under Section 19 (1) of the Act nor it can be treated as letters patent appeal under Clause 12 of the Letters Patent of this Court.
4. We have considered the submissions made by the learned counsel for the parties and perused the record.
5. Sub Section 1(a) & (b) of Section 19 of the Act provides as under:-
"19. Appeal (1) An appeal shall lie as of right from any order or decision of the 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 of decision is that of bench, to the Supreme Court.
.............................................."
From a bare perusal of Section 19(1), reproduced herein above, would indicate that right of appeal would be available only against any order or decision of the High Court in exercise of its jurisdiction to punish for contempt.
6. Section 94 of the Constitution of Jammu & Kashmir, which is pari materia to Article 215 of the Constitution of India, provides that the 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 or of the courts subordinate to it. That being the explicit position, appeal under Section 19(1) of the Act would lie only when High Court makes an order or decision in exercise of its jurisdiction to punish for contempt. A three-Judge Bench of LPASW No.267/2017 Page 4 of 7 the Supreme Court in the case of D.N.Taneja v. Bhajan Lal; (1988) 3 SCC 26 considered this aspect in extenso. What was held in paragraph-12 of the judgment reads thus:-
"12. Right of appeal is a creature of the statute and the question whether there is a right of appeal or not will have to be considered on an interpretation of the provision of the statute and not on the ground of propriety or any other consideration. In this connection, it may be noticed that there was no right of appeal under the Contempt of Courts Act, 1952. It is for the first time that under section 19(1) of the Act, a right of appeal has been provided for. A contempt is a matter between the court and the alleged contemnor. Any person who moves the machinery of the court for contempt only brings to the notice of the court certain facts constituting contempt of court. After furnishing such information he may still assist the court, but it must always be borne in mind that in a contempt proceeding there are only two parties, namely, the court and the contemnor. It may be one of the reasons which weighed with the Legislature in not conferring any right of appeal on the petitioner for contempt. The aggrieved party under section 19(1) can only be the contemnor who has been punished for contempt of court."
7. The same view has been reiterated by the Supreme Court in a subsequent judgment rendered in the case of Midnapore Peoples' Coop. Bank Ltd. V. Chunilal Nanda and others; (2006) 5 SCC 399. The Supreme Court after taking note of the several decisions rendered on the scope of Section 19(1) of the Act summarized the position of law in the following manner:-
"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.LPASW No.267/2017 Page 5 of 7
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 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)."
8. Viewed through the prism of aforesaid settled position of law, we do not find that the order impugned is the one passed by the Contempt Court in exercise of jurisdiction to punish for contempt, rather it is an order putting appellant No.3 on notice to show cause as to why he be not punished for contempt. Needless to say that the appellants would have ample opportunity to put forth their stand before the Contempt Court and explain that there was no deliberate or wilful disobedience of the order alleged to be violated. It is for the Contempt Court to consider the plea, if any, taken by the appellants in response to the show cause notice and decide the same in accordance with law. Suffice it to say that the preliminary objection raised by respondent No.1 on the maintainability of this appeal is well founded and deserves to be accepted.
9. This takes us to another plea raised by the learned counsel for the appellants that even if it is assumed that the appeal against the order impugned is not maintainable under Section 19(1) of the Act, yet the same LPASW No.267/2017 Page 6 of 7 would be maintainable under Clause 12 of the Letters Patent. We have given thoughtful consideration to this aspect of the matter also but do not find any merit in the submission made by the learned counsel for the appellants-State. Clause 12 of the Letters Patent provides for an appeal from a judgment of the learned Single Judge passed in exercise of original jurisdiction to the Division Bench. What would be the judgment in terms of Clause 12 of the Letters Patent, has been well explained in series of judgments rendered by Hon'ble the Supreme Court as well as this Court. The word "Judgment" is undoubtedly a concept of finality in broader sense. The judgment could either be a final judgment, preliminary judgment or intermediary judgment or interlocutory judgment but it would be a judgment only if it decides some issue or right between the parties finally. The intermediary and interlocutory orders passed during the course of the proceedings which do not determine any right or issue between the parties cannot be said to be the judgment amenable to the appellate jurisdiction of the Division Bench under Clause 12 of the Letters Patent. It is not the case of the appellants that by virtue of the order impugned the Contempt Court has issued directions which go beyond the scope of the judgment alleged to be violated by the appellants.
10. In the light of aforesaid analysis, we find that the appeal is not maintainable under Section 19(1) of the Act or under Clause 12 of the Letters Patent. Consequently, the appeal is dismissed along with connected MP. There shall, however, be no order as to the costs.
(M.K.Hanjura) (Sanjeev Kumar)
Judge Judge
Srinagar
31/01/2018
Vinod..
LPASW No.267/2017 Page 7 of 7