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1993 DIGILAW 178 (KER)

Rajan Nair v. Mohan

1993-03-25

BALANARAYANA MARAR, PARIPOORNAN

body1993
Judgment :- Balanarayana Marar, J. The complainant has filed this petition under the Contempt of Courts Act, 1971 (for short, the Act) praying that necessary action may be taken against the respondent for contempt of this court as per the memorandum of charges produced along with the petition. The facts leading to the petition are as follows: 2. Petitioner was employed as a temporary salesman-cum-assistant Accountant in the Cochin Unit of the Indian Naval Canteen Service. His services were terminated with effect from 8-4-1982. The termination was challenged before this court in O.P. 2990/1982. By judgment dt. 30-10-1984 the termination order was quashed and consequential directions were issued by this court. The operative portion of the judgment reads: "Accordingly I quash Ext.P6 and declare that the petitioner continues in service. I further direct respondents 1 and 2 to treat the petitioner as if he is continuing in service and consequently to give him all the benefits he is entitled to, including pay and allowances". 3. Respondent took up the matter in appeal. A Division Bench of this Court by judgment DT. 18-3-1985 rendered in W.A.58/1985 dismissed the appeal. A special leave petition was filed before the Supreme Court as SLP 8284/1985. That petition was disposed of on 18-3-1986 by the following order: "Shri N. Sudhakaran, learned counser for respondent No.1 states that the first respondent is satisfied if 1/2 of the back wages is paid within one month in full settlement of his claim as regards back wages. The first respondent shall however be reinstated. With these observations SLP is disposed leaving question open whether petitioner establishment is state". 4. In pursuance to the order of the Supreme Court petitioner was reinstated on 8-4-1986. Along with the order of reinstatement respondent issued an order requesting petitioner to sign an undertaking for a fresh appointment styled as a probationary appointment. The half backwages directed to be paid by the Supreme Court was also paid. The offer of fresh appointment was not in accordance with the decision of this court. All temporary appointments made since 1981 were regularised while petitioner was kept out of employment. In these circumstances petitioner moved this court by O.P.4466/1986 seeking directions to respondent to grant benefit of permanency and other incidental reliefs. That petition was allowed on 3-10-1986 with a direction to the respondent to issue orders implementing the directions in the earlier j Judgment. All temporary appointments made since 1981 were regularised while petitioner was kept out of employment. In these circumstances petitioner moved this court by O.P.4466/1986 seeking directions to respondent to grant benefit of permanency and other incidental reliefs. That petition was allowed on 3-10-1986 with a direction to the respondent to issue orders implementing the directions in the earlier j Judgment. Respondent preferred an appeal against that decision as W.A.864/1986 which was dismissed. The request of respondent for clarification of the judgment in the Writ Appeal was also rejected. 5. After the order of this court in the petition for clarification respondent issued an order on 8-3-1991 asking petitioner to accept the appointment order dt.27-3-1986. A representation was made by petitioner on 8-4-1991. Thereafter respondent issued another order on 30-4-1991 informing petitioner that he will start the probation from the date he signifies acceptance of the fresh appointment order. These orders issued by respondent are alleged to be in violation of the directions of this court in the judgment dt.3-10-1986 and the writ appeal against that decision. In particular it is stated that the orders issued by the respondent to the extent that petitioner is treated as a fresh recruit from the date of signifying acceptance of Ext.P6 order dt.27-3-1986 are in violation of the directions in the judgment whereby respondent is alleged to have committed contempt of court as defined in S.2(a) and (b) of the Act. 6. The petition was presented on 23-5-1992. By order dt.10-7-1992 this court ordered notice. The personal presence of the respondent was dispensed with. Respondent filed counter affidavit contending inter alia that the present proceedings are barred as belated under S.20 of the Contempt of Courts Act. It was also contended that respondent has not violated any of the orders of this court and that Ext.P6 order was issued in accordance with the rules and regulations of the Indian Naval Canteen Service. It is also contended that respondent was directed to consider the question of absorbing petitioner as a regular employee under the standing orders and regulations. 7. An affidavit was filed by respondent on 8-3-1993 stating that all the benefits to which petitioner is entitled as per the regulations had been given to him. It is also contended that respondent was directed to consider the question of absorbing petitioner as a regular employee under the standing orders and regulations. 7. An affidavit was filed by respondent on 8-3-1993 stating that all the benefits to which petitioner is entitled as per the regulations had been given to him. By that affidavit, styled as "affidavit of apology", respondent had advanced apology for acceptance of this court under S.12 of the Contempt of Courts Act if, even after the consideration of submissions and contentions borne on record of these proceedings, this court is still inclined to hold that his conduct constituted contempt. What is contemplated under R.14(a) of the Rules framed by this court under the Act is an unconditional apology by the respondent after admitting that he has committed the contempt, in which case the court may proceed to pass suchorders as it thinks fit. From the affidavit it would appear that it is not an unconditional apology nor has respondent admitted that he has committed contempt. The court has therefore to proceed under R.14(b). In order to proceed under that sub-clause, we heard counser on both sides. 8. The main contention advanced by the learned counser for the respondent is that the jurisdiction of this Court is barred since the proceedings were not initiated within a period of one year from the date on which the contempt is alleged to have been committed. Even according to the petitioner the contempt was committed on 30-4-1991, the date on which Ext.P5 order was issued by the respondent informing him that the period of probation will start from the date of endorsement on the copies of the appointment order. Admittedly this court was not moved within a period of one year therefrom. The petition was presented on 23-5-1992, on the date on which the court reopened after mid-summer vacation. The contention of the learned counser appears to be that the period of limitation having expired during vacation, presentation of the petition on the re-opening date is within lime. Exclusion of the period of vacation is therefore claimed under S.4 of the Limitation Act. On the other hand, it is urged by learned counser for the respondent that what is contemplated is not presentation of the petition, but initiation of the proceedings and that was done after the period of one year. Exclusion of the period of vacation is therefore claimed under S.4 of the Limitation Act. On the other hand, it is urged by learned counser for the respondent that what is contemplated is not presentation of the petition, but initiation of the proceedings and that was done after the period of one year. In order to appreciate the contentions advanced on both sides it is profitable to refer to S.20 of the Act which reads: "No Court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed". 9. Two points of time are material as far as this section is concerned. They are: (i) the date of commission of the alleged contempt, and (ii) the date of actual initiation of proceedings of contempt. Regarding the first point of time, there is no dispute. The contempt is alleged to have been committed on 30-4-1991. S.20 mandates that the proceedings for contempt should be initiated within a period of one year there from. The question arises whether the presentation of the petition amounts to initiation of the proceedings or whether the initiation of the proceedings takes place on the court applying its mind on the facts brought to its notice. If the presentation of the petition amounts to initiation of the proceedings, the question whether the period of vacation can be excluded also arises for consideration. 10. It is settled law that as far as criminal contempt is concerned, it is a matter entirely between the court and the alleged condemner. It is for the court to decide whether or not to initiate a proceeding for contempt. No right inhcrs in anyone to comper the court to initiate the proceeding even if a prima facie case is made out. This court gets jurisdiction to take action for contempt when it decides to initiate proceedings for contempt either suo mote or on a motion made by the Advocate General or any other person with the consent in writing of the Advocate General or on a reference made by a subordinate court. Viewing S.20 of the Act in the light of these principles the Supreme Court in Baradakanta Mishra v. Mr. Viewing S.20 of the Act in the light of these principles the Supreme Court in Baradakanta Mishra v. Mr. Justice Gatikrushna Misra, C.J., Orissa High Court (AIR 1974 SC 2255) observed that 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 Supreme Court held: "The exercise of the jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt, whether suo motu or on a motion or a reference. That is why the terminous a quo for the period of limitation provided in S.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 in the exercise of its jurisdiction to punish for contempt' 11. The Supreme Court has thus held that the terminating point for determination of limitation would be the date on which the court assumes jurisdiction by initialing action. If that be so, the action initiated by directing issue of notice to the contemner should be within a period of one year from the date of the alleged contempt. 12. Our attention is also drawn to the decision of the Karnataka High Court in N. Venkataramanappa v. D.K. Kaikar (AIR 1978 Karnt. 57). It was held that the bar contained in S.20 of the Act is an absolute one. It bars initiation of any proceedings for contempt after the expiry of the period of one year from the date on which the contempt is alleged to have been committed. It is further observed that after the expiry of the said period of one-year, no court can initiate any proceedings for contempt either suo motu or otherwise. 13. The Gujarat High Court had also occasion to consider this aspect in Dineshbhai v. Kripalu Co-op. Housing Society (AIR 1980 Guj.194). In para. 19 of the judgment at p.200 it was observed ilia t action under the Act can be taken if the court has applied its mind and initiated proceedings by passing some order within a period of one year from the date of the alleged act of contempt. Housing Society (AIR 1980 Guj.194). In para. 19 of the judgment at p.200 it was observed ilia t action under the Act can be taken if the court has applied its mind and initiated proceedings by passing some order within a period of one year from the date of the alleged act of contempt. It was held: "If an application for taking action under the Contempt of Courts Act, 1971 is filed within a period of one year from the date of the alleged commission of contempt, but the court has passed no order thereon before the expiry of one year from the said date, such application automatically fails and the jurisdiction of the court is barred because the court did not apply its mind to the complaint or information within a period of one year. It is this application of mind by the Court which amounts to initiation of proceedings within the meaning of S.20 of the Contempt of Courts Act, 1971". 14. The same view was expressed by the Patna High Court in the decision in State of Bihar v. AmbikaRoy (1991 Crl.L.J. 82). While holding that a contempt proceeding will be deemed to have been initiated on the day when the High Court has passed an order for issuing notice against a condemner and thereby applying its mind, the Court observed that there can be no distinction between the expressions "proceeded against for commiting contempt" and "starting a contempt proceeding". Both stand on the same fooling. In both cases there is application of mind with a view to take action against a contemner for committing contempt of Court. 15. We are in respectful agreement with the views expressed in the aforesaid decisions. The position therefore is that if the court has not initiated proceedings by passing some order within a period of one year from the date of the alleged Act of contempt, the bar contained in S.20 comes into operation. On a reading of S.20 of the Act it is clear that it places an absolute fetter on the power of the court to initiate proceedings for contempt after the expiration of a period of one year from the date on which the contempt is alleged to have been committed. In the present case this court ordered notice to respondent on 10-7-1992, admittedly after the expiration of the period provided in S.20 of the Act. In the present case this court ordered notice to respondent on 10-7-1992, admittedly after the expiration of the period provided in S.20 of the Act. This court had applied its mind for the first time only on that date. The initiation of the proceedings contemplated under S.20 has therefore taken place on that date only. That is beyond the terminating point for determination of limitation since more than one year has elapsed from 30-4-1991, the dale on which the contempt is alleged to have been committed. In the light of the principles enunciated in the aforesaid decisions, the objection raised by the learned counser for the respondent that the proceedings are barred as belated under S.20 of the Act has only to be sustained. 16. In view of our finding that this court has initiated the proceedings after a period of one year from the first point of time viz. the date of commission of the alleged contempt, it is unnecessary to consider whether the presentation of the petition on the re-opening day is proper or not. What is contemplated under S.20 of the Act is not the presentation of the petition, but initiation of the proceedings for contempt. S.20 does not prescribe any period of limitation whereas it contains only a prohibition regarding initiation of proceedings by this court. The question of exclusion of the period of vacation under S.4 of the Limitation Act does not therefore arise. 17. The rules framed by this court under the Act contemplate a preliminary hearing before notice is issued to the respondent. R.3 stipulates that every petition/ proceeding for initiating action for contempt shall be received in the registry of the High Court and registered as "contempt of court case". Every such petition, reference, information or direction has to be placed for preliminary hearing before the appropriate Bench (vide rule 9(i)). The court, if satisfied that a prima facie case has been made out, may direct issue of notice to the respondent. Otherwise, it shall dismiss the petition or drop the proceedings. The petition came up for preliminary hearing on 10-7-1992. On the same date the court directed issue of notice to the respondent. Such a direction is given only on satisfaction that a prima facie case has been made out. Then only the question of initiation of action arises. Otherwise, it shall dismiss the petition or drop the proceedings. The petition came up for preliminary hearing on 10-7-1992. On the same date the court directed issue of notice to the respondent. Such a direction is given only on satisfaction that a prima facie case has been made out. Then only the question of initiation of action arises. This court has initiated proceedings by issue of notice after a preliminary hearing and on satisfaction that a prima facie case has been made out only on 10-7-1992. If the court is not so satisfied, the proceedings can be dropped. It is only after the preliminary hearing that the court decides whether proceedings should be initiated or not. That hearing having been conducted only on 10-7-1992, after the period of one year from the date on which the contempt is alleged to have been committed, the initiation of proceedings was not made within the period prescribed under S.20 of the Act. The proceedings are therefore to be dropped. 18. Our view gets support from the decision of the Allah bad High Court in Smt. Bano v. RamAutar Gaiilam (1987 Crl.L.J. 647). The order of the High Court in that case was 'issue notice'. It was held that the order connotes that the court has decided to lake action and called upon the alleged columnar to show cause why he be not punished for the alleged contempt. It is further observed that the order may not be a speaking order and the charge as required may not have been framed but it makes clear that by saying that notices be issued, the court directs the office to issue notices as required under the rules. That, according to the Allahabad High Court, amounts to the initiation of the proceedings and taking of the cognisance of the matter. 19. Learned counser for the petitioner has raised a further contention that the provisions contained in the Act are not exhaustive and that they arc in addition to and not in derogation of the provisions of any other law relating to contempt of courts. Drawing attention to S.22 of the Act it is urged that the powers of this court under Art.215 of the Constitution of 1ndia are not in any way abridged by the provisions contained in the Act. Art.215 enables the court to punish contempt of itself. Drawing attention to S.22 of the Act it is urged that the powers of this court under Art.215 of the Constitution of 1ndia are not in any way abridged by the provisions contained in the Act. Art.215 enables the court to punish contempt of itself. No period of limitation is prescribed for exercise of such a power, according to counsel. Meeting this contention learned counser for the respondent points out that the contempt jurisdiction of this court can be regulated by appropriate legislature under entries 77 of List I and 14 of List III. In exercise of those powers Parliament has enacted the Contempt of Courts Act, 1971. The inherent power of this court being a court of record cannot be taken away by legislation except by a Constitutional amendment. This Court has therefore the power to punish for contempt of itself. That power cannot be curtailed. But there is no bar in the Legislature from expanding that jurisdiction by legislation. The only restriction imposed by S.22 of the Act is that the provisions of the Act should not be in derogation of the provisions of any other law. Stipulating the period within which action has to be initiated by the court will not amount to a derogation of the power vested in the High Court to punish a person for contempt of this court. 20. In this connection we are referred to the decision of the Rajasthan High Court in State of Rajasthan v. Mis. Jamna Das Gangadas & Co, (1984 Crl.L. J. 605). It is observed that the period of limitation is a matter relating to procedure and not to regulate the exercise of power. The power to punish for contempt under Art.215 of the Constitution is not taken away, but this power is required to be exercised within the time prescribed under S.20 of the Act. It was held that even if the applications are considered to be under Art.215 of the Constitution, still, for the purpose of limitation, they will be governed by S.20 of the Act. 21. Same is the view expressed by the Karnataka High Court in High Court of Karnataka v. Y.K. Subbabba (1990 Crl.L.J.1159). It was observed that the prescription of a period oflimitation is procedural in nature. 21. Same is the view expressed by the Karnataka High Court in High Court of Karnataka v. Y.K. Subbabba (1990 Crl.L.J.1159). It was observed that the prescription of a period oflimitation is procedural in nature. The Parliament has power to enact law to regulate the procedure in relation to the powers of the court in punishing for contempt of court. It was therefore held that S.20 does not derogate from the power vested in the High Court under Art.215 of the Constitution. The section does not intend to abrogate the powers under Art.215 either wholly or partially. It was held that the inherent powers can be exercised in all their scope and ambit within the period of one year prescribed by S.20 of the Act. 22. We respectfully agree with the views expressed by the Rajasthan and Karnataka High Courts and hold that S.20 does not intend to abrogate the powers of this court under Art.215 of the Constitution and that it is not in derogation of the powers conferred on this court under that Article. 23. Having found that the proceedings arc not initiated within a period of one year from the date of the alleged contempt, we do not think it necessary to proceed further and consider the merits of the other contentions raised by the parties. Having decided to drop the proceedings it is not expedient to do so. In the result we drop the proceedings and dismiss the petition.