P. Rajan Nair v. Kuldip Singh — 1996 DIGILAW 245 (KER)

Judgment :- RAJAN, J. This case has a chequered history spreading over more than one decade. We would like to trace the history of this case from the very beginning when the petitioner approached this Court for the redressal of his grievances. The petitioner who was a temporary Salesman-cum-Assistant Accountant in the Cochin unit of the Indian Naval Canteen service (hereinafter referred to as naval canteen) filed O.P. No. 2990/82 challenging his termination of service with effect from 8-4-1982. The above original petition was allowed by judgment dated 30-10-1984 quashing the order of termination and declaring that the petitioner continued in service. This Court also directed the naval canteen authorities to treat the petitioner as if he was continuing in service and to give him all consequential benefits including pay and allowances. The writ appeal filed against the above judgment was dismissed. The respondent took the matter to the Supreme Court. The Supreme Court in its order dated 10-3-1986 while confirming the judgment of this Court limited the payment of backwages to half the amount. 2. The petitioner was reinstated in service only with effect from 8-4-1986. Moreover, the petitioner was requested to sign a letter by which he was compelled to accept the appointment as a fresh appointment on the terms and conditions provided therein. The petitioner also was intimated that his services would be terminated if he failed to signify the acceptance of the fresh appointment the above action of the respondent was challenged by filing O.P. No. 4466/1986, which was disposed of by this Court as per Ext. P1 judgment dated 3rd October 1986. It is useful to extract paragraph 5 of the above judgment in order to appreciate the rival contentions put forward by the petitioner and the respondent. "5. The petitioner is aggrieved by the action of the respondents in not treating him as in continuous service entitled to benefits arising only therefrom, by issuing Ext. P3 whereby he has been required to sign the terms and conditions of the employment afresh. If the petitioner is entitled by virtue of the direction in the judgment of this Court as modified by the Supreme Court to reinstatement treating his service as continuous without interruption from the date of termination on 8-4-1982 appointment as a regular employee with effect from 8-4-1986 on the terms of Ext. P3 is not complying with the direction in the judgment. P3 is not complying with the direction in the judgment. If he were to continue as a temporary employee he would be entitled to all the benefits flowing therefrom including the right to be considered against any regular vacancy before his juniors are considered. The offer for regular appointment as per Ext. P3 and the acceptance of the same would turn to be prejudicial to the interests of the petitioner, in that he could not claim seniority over those persons who though junior to him are already considered and appointed against regular vacancies after 8-4-1982. This Court has declared in the judgment in O.P. No. 2990 that the petr. must be deemed to be continuing in service with all the benefits including pay and allowances. The modification made by the Supreme Court is that he shall be reinstated. The Supreme Court also allowed the petitioner to draw the backwages limited to 50% of what is payable. The right to continue in service from the date of termination and the entitlement to the benefits of continuous service is necessarily implied in this decision of the Supreme Court. It is not correct to say that in the absence of a specific direction in the order in the S.L.P. to treat the petitioner as if he is continuing in service, such a direction given by this Court has become inoperative of ineffective. The direction in the judgment of this Court is modified by the Supreme Court only in respect of the backwages. Instead of the deeming continuity the Court has directed a positive action by reinstatement. The petitioner is entitled to reinstatement with backwages for the period prior to the date of reinstatement at half the rate. The period for which backwages are payable has not been reduced. The petitioner having been reinstated with effect from 8-4-1986, backwages would be payable from 8-2-1982 to 8-4-1986. Though the order of the Supreme Court was on 10-3-1986, his entitlement for the backwages arise only on his reinstatement. The restriction to pay one half would apply to the whole period up to the date of reinstatement that is 8-4-1986. The petitioner, by virtue of his continuous service on the basis of the directions of the Court, would also be entitled to the consequential benefits which have to be computed by the respondents in accordance with the terms and conditions of the employment. The petitioner, by virtue of his continuous service on the basis of the directions of the Court, would also be entitled to the consequential benefits which have to be computed by the respondents in accordance with the terms and conditions of the employment. It is also for the respondents to consider the question of absorbing the petitioner as a regular employee under the standing orders and regulations. The petitioner is a temporary employee who has been reinstated in service in pursuance to the directions of the Court. Exts. P7 and P8 are therefore arbitrary, unjust and unsustainable and have to be quashed." 3. Finally this Court quashed the orders impugned in the above original petition and respondent was directed to work out and to give the benefits to the petitioner in the light of the above observations, and also to give all the benefits to which the petitioner was entitled to in terms of the decision of this Court as expeditiously as possible, at any rate within a period of three months. 4. Ext. P1 was taken up in appeal and Ext. P2 is the judgment in appeal. Paragraph 4 of Ext. P2 judgment is re-produced below : "4. The second contention urged was that the judgment of this Court in the earlier O.P. has been in fact, set aside by the Supreme Court and therefore the judgment of this Court no longer stands. The relevant paragraph of the judgment of this Court, extracted above, as also the order of the Supreme Court shows that the Supreme Court confirmed the decision of this Court and only a slight modification was made by way of agreement between the parties. The appellants are bound by the earlier judgment of this Court subject to the modification agreed to before the Supreme Court." This Court also held that the respondent was bound to give the petitioner all benefits to which he was entitled to in law, according to the rules, consequent on his reinstatement. It was also observed that the termination of the services of the petitioner had already been set aside and that order stood. The attempt of the respondent to reconsider the above decision of the Division Bench was frustrated by Ext. P3 order. Since the respondent was not prepared to implement the above judgments of this Court, the petitioner filed C.C.C. No. 119 of 1992. The attempt of the respondent to reconsider the above decision of the Division Bench was frustrated by Ext. P3 order. Since the respondent was not prepared to implement the above judgments of this Court, the petitioner filed C.C.C. No. 119 of 1992. A Division Bench considered the maintainability of the above contempt case in the light of Section 20 of the Contempt of Courts Act read with Article 215 of the Constitution. The Division Bench took the view that the limitation of one year prescribed in Section 20 of the Contempt of Courts Act is applicable to the facts of the case and therefore it was held that it was not necessary to proceed further and consider the merits of the contentions raised by the parties and the proceedings were dropped. The above judgment is reported in Rajan Nair v. Mohan, (1993) 1 Ker LT 782. 5. Later, the above ruling was re-considered by this Court in the Full Bench decision reported in Mayilswami v. State of Kerala, (1995) 2 Ker LT 178 : (1995 Cri LJ 3830). The Full Bench overruled the decision reported in (1993) 1 Ker LT 782 holding that the period mentioned in Section 20 of the Contempt of Courts Act could not be made applicable to a case of contempt of the High Court. The Full Bench was of opinion that as every High Court has power to determine questions about its own jurisdiction and it has inherent power to punish for its contempt summarily, period of limitation in Section 20 of the Contempt of Courts Act has no application to contempt proceedings initiated in the High Court on its own motion or on complaint regarding contempt of the High Court. 6. According to the petitioner, since the earlier judgment was overruled in the light of the judgment of the Full Bench, the contempt committed by the respondent continued to be committed by him and it is a continuing offence and therefore still congnizable by this Court under Article 215 of the Constitution. The further contention is that the earlier proceedings under the Contempt of Courts Act were dropped only on the ground that the same is barred by limitation and now the law is clear that there is no limitation and therefore the action of the respondent continues to be act punishable under Contempt of Courts Act. The further contention is that the earlier proceedings under the Contempt of Courts Act were dropped only on the ground that the same is barred by limitation and now the law is clear that there is no limitation and therefore the action of the respondent continues to be act punishable under Contempt of Courts Act. Under these circumstances the petitioner has filed the present petition praying to take action against the respondent for violating the directions issued by this Court in O.P. No. 4466 of 1986 and O.P. No. 2990/82. 7. The respondent disputed the contentions by filing a counter-affidavit. As per that the present move taken by the petitioner is barred by the principles of res judicata. This Court dismissed the earlier petition as not maintainable as it was filed beyond one year fixed by Section 20 of the Contempt of Courts Act. It is true that the said view has been reversed by a Full Bench. That decision will not revive the cause of action for presenting a second petition like the one now moved. It was contended that the doctrine of res judicata squarely applies to the facts of this case and therefore the decision in C.C.C. No. 119 of 1992 binds the parties and the same cannot be resurrected by breathing life into it, by virtue of the subsequent Full Bench decision. It was further contended that the liability for contempt was always personal and cannot be attributed to any office as such. Therefore the present respondent who is successor to the earlier respondent cannot be saddled with the liability to punishment, if any, to be awarded by this Court. 8. Therefore we have to consider the maintainability of this petition in view of the arguments advanced by the respondent that the principle of res judicata disentitles the petitioner from approaching this Court again for the same relief. In this connection it is essential to refer to the dictum of this Court in the ruling reported in (1993) 1 Ker LT 782 in order to appreciate the argument advanced by both parties. The only contention considered and decided in the above case was that the jurisdiction of this Court was barred since the proceedings were not initiated within a period of one year from the date on which the contempt was alleged to have been committed. Even according to the petitioner contempt was committed on 30-4-1991. The only contention considered and decided in the above case was that the jurisdiction of this Court was barred since the proceedings were not initiated within a period of one year from the date on which the contempt was alleged to have been committed. Even according to the petitioner contempt was committed on 30-4-1991. Admittedly this Court was not moved within a period of one year therefrom, since the petition was presented only on 23-5-1992 (please see para 8 of (1993) 1 Ker LT 782). After considering the various rulings of the High Courts, the Division Bench held that 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 Section 20 comes into operation. On a reading of Section 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 expiration of a period of one year from the date on which the contempt is alleged to have been committed. The conclusion of the Division Bench contained in Paras 22 and 23 of the above judgment are extracted for reference : "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." "Having found that the proceedings are 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." 8-A. The dictum in the above ruling was doubted and the matter was considered by a Full Bench of this Court in the ruling reported in ((1995) 2 Ker LT 178 : 1995 Cri LJ 3830). Having decided to drop the proceedings it is not expedient to do so." 8-A. The dictum in the above ruling was doubted and the matter was considered by a Full Bench of this Court in the ruling reported in ((1995) 2 Ker LT 178 : 1995 Cri LJ 3830). The Full Bench overruled the decision of the Division Bench and held that the power of the High Court to determine questions about its own jurisdiction and inherent power to punish for its contempt is not curtailed or abridged by the period of limitation prescribed in S. 20 of the Contempt of Courts Act. Sri V. Giri, learned counsel appearing for the petitioner presented his case with precision and clarity. His case was mainly based on the fact that in view of the pronouncement of the Full Bench, the bar of limitation was taken away and the act of contempt committed by the respondent revived and continues to exist even today. In order to support his line of reasoning, learned counsel cited the ruling reported in D. N. Taneja v. Bhajan Lal (1988) 3 SCC 26 in the above ruling the Supreme Court held that the proceeding under the Contempt of Courts Act is only between the Court and the contemner and a third party can only bring the information to the Court's notice and assist the Court in the proceeding. Therefore the exercise of the power of this Court to impose a punishment under the Contempt of Courts Act or under Art. 215 of the Constitution is not governed by either any period of limitation or by the principle of res judicata. 9. On the other hand, it was vehemently contended by Sri. Alexander Scaria, learned counsel appearing for the respondent that the doctrine of res judicata has to be applied liberally uninfluenced by technical considerations. In support of his argument he cited the ruling reported in Mathura Prasad v. Dossibai AIR 1971 SC 2355. He relied on the following passage of the Supreme Court ruling contained in para 10 of the judgment : "It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. He relied on the following passage of the Supreme Court ruling contained in para 10 of the judgment : "It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier, proceeding between the same parties may not for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law, i.e. the interpretation of a statute, will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression "the matter in issue" in S. 11 Code of Civil Procedure means the right litigated between the parties, i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of the order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land." The learned counsel also brought to the notice of this Court the ruling reported in Sushil Kumar Mehta v. Gobind Ram Bohra (1990) 1 SCC 193 to contend that this Court cannot go into the question of contempt in view of the earlier decision of the Division Bench between the same parties. Though the argument of the learned counsel on the basis of these two Supreme Court rulings appear to be quite attractive, a close reading of the above two decisions will lead to the conclusion that the principle of res judicata cannot be applied in the following cases. The question relating to jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. The question relating to jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. IF by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not operate as res judicata. Similarly, by an erroneous decision, if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and therefore cannot be re-opened. Same may be the fate of a mixed question of law and fact determined in the earlier proceeding between the same parties. But the Supreme Court struck a different note with regard to a decision on a question of law. Thus where the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rules of res judicata, the party affected by the decision will not be precluded from challenging the validity of the order invoking the rule of res judicata because a rule of procedure cannot supersede the law of the land. 10. The reasoning behind the above wholesome principle is that the defect of jurisdiction strikes at the basic authority of the Court to pass an order which cannot be cured by the consent or waiver of the party. The doctrine of res judicata is founded on public policy. The question of jurisdiction of a Court or of a procedure or a pure question on law unrelated to the right of the parties if decided erroneously, will not operate as res judicata. Therefore a decision on question relating to jurisdiction of a Court or interpretation of provisions of a statute cannot operate as res judicata barring the consideration of that issue in a subsequent proceeding. 11. The Supreme Court had occasion to consider the nature of the jurisdiction and power under the Contempt of Courts Act and under the Constitution in the ruling reported in Delhi Judicial Service Association v. State of Gujarat (1991) 4 SCC 406 : (1991 Cri LJ 3086). 11. The Supreme Court had occasion to consider the nature of the jurisdiction and power under the Contempt of Courts Act and under the Constitution in the ruling reported in Delhi Judicial Service Association v. State of Gujarat (1991) 4 SCC 406 : (1991 Cri LJ 3086). In the above case it was held that the Supreme Court and High Courts have got inherent jurisdiction to take action for contempt of Court under the relevant provisions in the statute and under the Constitution. 12. In this connection it is useful to refer to a Division Bench ruling of this Court reported in Premananda Bharathi v. Yogananda Bharathi 1985 Ker LT 144 : (AIR 1985 Kerala 83). In the above case the question that came up for decision was whether the appointment of a second commissioner without setting aside the proceedings and report of the first commissioner was with jurisdiction or not. In the well considered and exhaustive discussion made by Justice Paripoornan (as His Lordship then was), it was held that it is settled law that the decision of a Court on a question relating to jurisdiction cannot be deemed to have been finally determined by an erroneous decision of the Court and such decision cannot operate as res judicata in a subsequent proceeding. Reliance was placed by the learned Judge to come to the above conclusion on the ruling reported in AIR 1971 SC 2355, a ruling which was heavily relied on by the counsel for the respondent. It was also held in the above decision that the principle of res judicata was totally inapplicable in the case, since it was held that the Court committed a jurisdictional error in appointing a second commissioner without expressly setting aside the report and proceedings of the first commissioner. It was further held that whatever decision is rendered by the Court militating against the said position in law cannot be deemed to have been finally determined by the erroneous decision rendered by the Court and such erroneous decision cannot operate as resjudicata. It was further held that whatever decision is rendered by the Court militating against the said position in law cannot be deemed to have been finally determined by the erroneous decision rendered by the Court and such erroneous decision cannot operate as resjudicata. A reading of a later decision of the Supreme Court dealing with the proceedings under the Contempt of Courts Act reported in In re : Vinay Chandra Mishra AIR 1995 SC 2348 : (1995 Cri LJ 3994) also lead us to the conclusion that it is a question of power and jurisdiction in respect of the action initiated under the Contempt of Courts Act and it is not a mere procedural matter. 12-A. Thus what this Court held in (1993) 1 Ker LT 782 was that this Court has no jurisdiction to entertain a petition under the Contempt of Courts Act after the lapse of one year from the date on which the contempt alleged to have been committed. Consequently it can safely be held that the above decision rested on a question of jurisdiction and on the interpretation of S. 20 of the Contempt of Courts Act. It was an erroneous decision on a question of jurisdiction. As per the interpretation of the law as subsequently found in the Full Bench ruling reported in (1995) 2 Ker LT 178 : (1995 Cri LJ 3830), the earlier decision on jurisdiction is erroneous. The above discussion sufficiently supported by decisions of the Supreme Court referred to earlier lead us to the conclusion that the present petition is not barred by the principles of res judicata. 13. Before going to the final stage of the case, we want to deal with another contention raised by the respondent that Exts. P4 and P5 extend the benefit of a regular appointment to the petitioner as against the temporary appointment which he was holding at the time of termination of his services and therefore is really more beneficial to the petitioner, but the petitioner in paragraph 10 of the petition has clearly stated that at lease five persons, whose names are mentioned therein were absorbed as permanent employees in the naval canteen during 1983-84 at a time when the petitioner was illegally kept out of service. These persons mentioned above were appointed as temporary employees subsequent to the appointment of the petitioner. These persons mentioned above were appointed as temporary employees subsequent to the appointment of the petitioner. Therefore the fresh regular appointment now offered to the petitioner in 1986 and in 1991 will not benefit the petitioner or at least that will deprive the petitioner of his past services between 1982 and 1986/1991. The averments in paragraph 10 of the petition were met in the counter-affidavit by stating that those persons were in continuous actual service (as distinct from deemed service) for quite many years and earned experience. But the above explanation conveniently forgets the fact that as early as on 30-10-1984 in O.P. No. 2990/82 this Court declared that the petitioner continued in service and he was entitled to get all consequential benefits. The above declaration and direction were repeated in Ext. P1 judgment which was confirmed in appeal. Therefore if we accept the above explanation, that will be giving a legal seal to the action of the respondent in ignoring the past service of the petitioner as declared by the various pronouncements of this court. We are not prepared to take such a course in this case so as to exonerate the respondent from his duty to obey the clear directions of this Court. 14. It is rather unfortunate that the General Manager of the naval canteen who was a Cammadore in the Indian Navy tries to justify his action in spite of authoritative pronouncements of this Court and of the Supreme Court in favour of the petitioner who is only a petty salesman in the naval canteen. We expect that an officer of the Indian Navy would abide and obey the directions of this Court in all its seriousness. At the same time, the present respondent Sri Kuldip Singh succeeded Sri V. K. Mohan only after the orders passed in 1991. A contention also has been raised in the counter-affidavit that he cannot be addled with the responsibility of committing contempt of Court because he was not even be aware of the contempt. We also refer to Ext. P9 dated 8-12-1995 wherein the present General Manager informed the counsel for the petitioner that the case, being a very old one requiring indepth study of all aspects at various levels, a reply would be forwarded in due course. We also refer to Ext. P9 dated 8-12-1995 wherein the present General Manager informed the counsel for the petitioner that the case, being a very old one requiring indepth study of all aspects at various levels, a reply would be forwarded in due course. Under these circumstances we are clear in our mind that all along the authorities of the naval canteen were not prepared to implement the orders, directions and declarations of this Court in various judgments in letter and spirit but were trying to evade the implementation on one pretext or other. Therefore in order to do justice to the petitioner and also to uphold the dignity of this Court we direct the respondent to pass positive orders in strict implementation of the directions contained in Ext. P1 judgment by giving all consequential benefits of continuous service with effect from 28-7-1981 as declared in Ext. P1 judgment and confirmed in Ext. P2 writ appeal. Such an order must be passed within two weeks from the date of receipt of a copy of this judgment and the matter reported to this Court immediately. 15. Since the real person who committed the contempt of Court is not made a respondent in this petition and the present respondent is not personally liable for the action amounting to contempt of Court, we are not passing any order sentencing him for the time being. In case the respondent is not complying with the present direction to pass final order within two weeks from the date of receipt of this order, he will be subjecting himself to proceedings under the Contempt of Courts Act. So we post this case on 15-7-96 to see whether the respondent purges the contempt. 16. We sincerely and earnestly hope that the respondent will be well advised to pass orders without creating any more hurdles in the matter of rendering justice to the petitioner. Post the case on 15-7-1996. Order accordingly.