Lakhpati Devi v. Sarju Prasad Pandey — 1970 DIGILAW 145 (ALL)

JUDGMENT Jagmohan Lal Sinha, J. - This application has been moved by Smt. Lakhpati Devi, hereafter to be called the Applicant for contempt proceedings being taken against Sri Sarjoo Prasad Pande, hereafter to be called the opposite party. 2. The facts leading to this application can briefly be stated as under: The Applicant was first appointed as an Assistant Teacher in the year 1935 in a School run by the District Board (as it was then called) Allahabad. Subsequently she was appointed as Head Mistress of a Junior High School at Mau Aema on a salary of Rs. 76/- per month. The Zila Parishad reverted the Applicant on 20-11-1963 to the post of Head Mistress of a Primary School carrying a salary of Rs. 55/- per month. The Applicant filed an appeal against the order of the Zila Parishad before the Commissioner, Allahabad Division. The appeal was allowed by the Commissioner vide his judgment dated 28-12-1965 and the Commissioner directed that the Applicant be reinstated in the post of Head Mistress, Junior High School with effect from the date she was relieved of that post and she be granted salary of the Head Mistress including the usual increments with effect from the same date. The Zila Parishad, Allahabad, through opposite party as its Adhyaksha filed Civil Misc. Writ Petition No. 1412 of 1965 assailing the order of the Commissioner. The writ petition was dismissed by a single Judge of this Court on 20-4-1967 and the contention of opposite party that the Commissioner had no jurisdiction to entertain an appeal against an order of the Zila Parishad was negatived. The Zila Parishad then filed a Special Appeal against the decision of the single Judge. In the Special Appeal the Bench Cons, tituting B.D. Gupta and Broome, JJ. accepted the contention of the opposite party that the Commissioner had no jurisdiction to entertain the appeal of the Applicant but refused to grant any relief to the opposite party for the reason that the Zila Parishad had submitted to the jurisdiction of the Commissioner. In the opinion of the Hon'ble Judges deciding the special appeal it was not open to the Zila Parishad, after the appeal had been decided by the Commissioner against it, to turn round and challenge the validity of the Commissioner's order on the score that he had no jurisdiction. The Special Appeal was decided on 16-4-1969. In the opinion of the Hon'ble Judges deciding the special appeal it was not open to the Zila Parishad, after the appeal had been decided by the Commissioner against it, to turn round and challenge the validity of the Commissioner's order on the score that he had no jurisdiction. The Special Appeal was decided on 16-4-1969. The opposite party, however, did not implement the order of the Commissioner even thereafter. The Applicant, therefore, moved the present application before this Court inter alia stating that the opposite party, by refusing to implement the order of the Commissioner which was upheld in writ proceedings by this Court, has committed contempt of the court of Commissioner as well as of this Court. The Applicant prayed that the opposite party be, therefore, punished for committing contempt of the said two courts. 3. The contempt application came up before a single Judge of this Court who by his order dated 24-11-1969 directed that the papers may be laid before The Hon'ble The Chief Justice for constituting a larger Bench for the decision of this application. It is thus that this application has come up before us. 4. The application has been opposed on behalf of the opposite party. 5. The petition that has been moved by the Applicant for contempt proceedings being drawn up against the opposite party and for his being punished is styled as one Under Order XXXIX, Rule 2, Code of Civil Procedure. It does not make a mention of any other provision of law. The relevant part of Order XXXIX, Rule 2 is contained in Sub-rule (3) which reads as follows: In case of disobedience, or of breach of any such terms, the court granting an injunction may order the property of the person guilty of such disobedience or breach to foe attached and may also order such person to be detained in the Civil Prison for a term not exceeding six months, Unless in the meantime the court directs his release. 6. By an UP amendment Rule 2-A has been inserted in Order XXXIX. It may be worthwhile to reproduce that rule also. 6. By an UP amendment Rule 2-A has been inserted in Order XXXIX. It may be worthwhile to reproduce that rule also. It reads as follows: In the case of disobedience to an injunction issued Under Rule 1 or Rule 2, Sub-rule (2) or of breach of any term of any such injunction, the court in which the suit is pending may order the property of the person guilty of such disobedience or breach to be attached and may also order such person to be detained in the Civil Prison for a term not exceeding six months, unless in the meantime the court directs his release. (2) No attachment under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues the property attached may be sold and out of the proceeds the court may award such compensation as it thinks fit and shall pay the balance, if any, to the party entitled thereto. 7. Now, it cannot be ignored that Rule 2 as well as Rule 2-A relate to temporary or interim injunctions issued during the pendency of the suit. It is not the Applicant's case that the opposite party has committed disobedience of any interim injunction issued by the Commissioner or by this Court. According to the Applicant the Commissioner while deciding the appeal before him had issued a direction that the Applicant be reappointed as Head Mistress of Junior High School and be paid accordingly and it is the disobedience of this order that has been committed by the opposite party. Therefore, regardless of the fact whether the Commissioner, while seized of the appeal, did or did not constitute a court within the meaning of that expression as used in Rule 2 and Rule 2-A of Order XXXIX, no action can be taken against the opposite party under the said provisions of law. Yet another thing which deserves notice in this connection is that action Under Rule 2 or Rule 2A of Order XXXIX should be taken by that court which issued the injunction of which disobedience has been caused. According to the Applicant herself it is the Commissioner who issued directions, carrying the effect of an injunction, while deciding the appeal. The application Under Order XXXIX Rule 2 or Rule 2A could, if at all, have been moved before the Commissioner. According to the Applicant herself it is the Commissioner who issued directions, carrying the effect of an injunction, while deciding the appeal. The application Under Order XXXIX Rule 2 or Rule 2A could, if at all, have been moved before the Commissioner. It is thus obvious that Rule 2 and 2-A of Order XXXIX CPC are not relevant. The Applicant cannot ask for any action being taken against the opposite party under the said rule for not implementing the directions contained in the Commissioner's order. 8. Presumably, conscious of this legal position, stress was placed on behalf of the Applicant during the arguments before us on the provisions contained in the Contempt of Courts Act 1952 (hereafter to be called the 1952 Act). Reliance was not placed during the arguments before us on Order XXXIX Rule 2 Code of Civil Procedure. Section 3 of that Act reads as follows: Section 3(1)--Subject to the provisions of Sub-section (2) every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempt of court subordinate to it as it has and exercised in respect of contempt of itself. (2) No High Court shall take cognizance of contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the IPC. 9. On a perusal of the above it would appear that two things are necessary for the application of Section 3 of the 1952 Act: 1. That the body or authority of which contempt is committed should be subordinate to the High Court. 2. That it should constitute a court within the meaning of that expression as contained in Section 3 of the 1952 Act. Earlier there was some conflict on the point whether this Court can exercise jurisdiction under the 1952 Act to punish contempt of such courts only which are judicially subordinate to it or it can exercise jurisdiction to punish contempt of all such courts which are under its supervisory jurisdiction by virtue of Article 227 of the Constitution of India. The controversy was, however, settled by Full Bench decision of this Court in Ram Saran Tewari v. Raj Bahadur 1962 AWR 185 . The controversy was, however, settled by Full Bench decision of this Court in Ram Saran Tewari v. Raj Bahadur 1962 AWR 185 . It was held in that case that this Court can exercise jurisdiction under the 1952 Act to punish contempt of all those courts over which it has supervisory jurisdiction Under Article 227 of the Constitution of India. 10. There can be no doubt that this Court has supervisory jurisdiction over the Commissioner while acting as a court. It can, therefore, exercise jurisdiction under 1952 Act to punish the contempt of the court of Commissioner. 11. The question that next falls for consideration is whether the Commissioner in the instant case acted as a court, for, if he did not act as a court resort cannot be bad to the provisions contained in the Contempt of Courts Act to punish the opposite party for not implementing the direction contained in the Commissioner's order. 12. It has been held by this Court in Special Appeal No. 344 of 1967 connected with Special Appeal No. 512 of 1967 and Special Appeal No. 627 of 1967 that the Commissioner had no jurisdiction to entertain the appeal that was filed by the Applicant. Smt. Lakhpati Devi Applicant was a party in the Special Appeal as well as in the Writ Petition out of which the Special Appeal arose. The finding given by this Court in the Special Appeal is, therefore, final between the parties. Consequently it has to be accepted that, while entertaining the appeal filed by Smt. Lakhpati Devi, the Commissioner did not exercise any statutory jurisdiction. Since the Commissioner did not exercise any statutory jurisdiction he did not act as a court and action cannot, therefore, be taken against the opposite party for not having implemented the direction contained in the Commissioner's order. 13. Much stress was laid by the learned Counsel for the Applicant on the fact that the Special Appeal filed by the opposite party was dismissed by this Court. Ft was contended that this should lead to the conclusion that this Court upheld the decision of the Commissioner. The order passed in Special Appeal cannot, however, be read in appeal in peacemeal. It has to be read as a whole. Ft was contended that this should lead to the conclusion that this Court upheld the decision of the Commissioner. The order passed in Special Appeal cannot, however, be read in appeal in peacemeal. It has to be read as a whole. It has been clearly held in the Special Appeal that the Commissioner did not have jurisdiction under any law to entertain appeal against the decision of the opposite party reverting the Applicant. The relief was, refused to the opposite party on the ground that once the opposite party had submitted to the jurisdiction of the Commissioner it was not open for him to turn round and come up in writ proceeding to assail the order given by the Commissioner. 14. The maximum that can be said on the side of the Applicant, on the basis of the observations contained in Special Appeal, is that since the Applicant and the opposite party both submitted to the jurisdiction of the Commissioner to decide the dispute between them, the Commissioner acted like an arbitrator in deciding that dispute. It can by no means be said that he exercised jurisdiction under any statute to decide the appeal filed by the Applicant. He certainly did not constitute a court within the meaning of Section 3 of the 1652 Act. 15. In case Brij Nandan Sinha v. Jyoti Narain AIR 1956 SC 67 a question arose whether the Commissioner appointed under the Public Servants Enquiries Act constituted a court within the meaning of Section 3 of the 1952 Act. It was observed: The word 'court' was not defined in the Act and the expression 'courts subordinate to the High Court' would prima facie mean the courts of law subordinate to the High Courts in the hierarchy of courts established for the purpose of administration of justice throughout the Union. It was further observed: It is clear, therefore, that the courts should have apart from having some of the trappings of judicial tribunal power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential test of a judicial pronouncement. 16. The point as to what does the expression 'court' mean again came in for decision before the Supreme Court, though in a different context, in case Shri Virindar Kumar Satyawadi Vs. The State of Punjab, AIR 1956 SC 153 . 16. The point as to what does the expression 'court' mean again came in for decision before the Supreme Court, though in a different context, in case Shri Virindar Kumar Satyawadi Vs. The State of Punjab, AIR 1956 SC 153 . It was observed: It may be stated broadly that what distinguishes a court for the quasi judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. And, it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with the law. When a question therefore arises as to whether an authority created by an Act is a court as distinguished from a quasi judicial tribunal what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a court. 17. As has already been stated it stands finally settled between the parties with the decision in the special appeal that the Commissioner did not have jurisdiction under any statute to entertain appeal against the decision of the Adhyaksha of Zila Parishad. This Court refused to grant any relief to the opposite party in special appeal merely for the reason that the opposite party had also submitted to the jurisdiction of the Commissioner. In other words the Applicant and the opposite party both had submitted to the jurisdiction of the Commissioner to decide the dispute existing between them. Now if two persons as parties to a dispute, refer their dispute to a third person for decision and the third person decides it, it cannot by any stretch of imagination be said that the said third person while deciding the dispute acted as a court in the hierarchy of courts established in the country for the administration of justice, nor can it be said that while deciding the dispute he carried with him the trapping of a judicial tribunal nor can it be said that the decision given by him carries the finality and authoritativeness of the decision given by a court. 18. 18. We have, therefore, no hesitation in concluding that the Commissioner when deciding the appeal filed by the Applicant did not act as a court within the meaning of that expression as used in Section 3 of the 1952 Act. 19. Since the decision given by the Commissioner, which the opposite party has not implemented, is not the decision of a court within the meaning of that expression as used in Section 3 of the 1952 Act this Court cannot exercise jurisdiction to punish him under the Contempt of Courts Act. 20. As for the contention that the opposite party committed contempt of this Court, we cannot ignore that this Court while deciding special appeal did not issue any mandamus. On the contrary by that decision this Court accepted the contention of the Respondent that the Commissioner had no jurisdiction to entertain appeal. Relief was refused to the Respondent only for the reason of his conduct viz. that the Respondent had consciously submitted to the jurisdiction of the Commissioner. It cannot, therefore, be accepted that the Respondent has committed any contempt of this Court by not complying with the direction contained in the decision of the Commissioner. 21. In the result this application fails but in view of the fact that despite the opposite party having submitted to the jurisdiction of the Commissioner and despite the fact that the writ petition and the special appeal filed by the opposite party have been dismissed the order of the Commissioner has not been implemented, we do not saddle the Applicant with the cost of the opposite party. The parties shall bear their own costs of these proceedings.