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2001 DIGILAW 266 (GAU)

Rakesh, I. A. S and Ors. v. G. Chandani Kabuini

2001-09-12

P.C.PHUKAN, P.G.AGARWAL

body2001
P.C. PHUKAN, J- This contempt appeal is directed against the order dated 25.5.2001 passed by the learned Singel Judge in Contempt Case No. 61 of2001. 2. The facts leading toe filing of this writ appeal may be briefly stated as follows. The husband of the writ petitioner (respondent in the instant appeal) while working as a Duftry in the Electricity Department of Govt. of Manipur died on 12.1.97. The writ petitioner then submitted an application dated 6.2.1997 to the respondent No. 3 (appellant No. 3 here) for appointment to a post under die-in-harness scheme followed by a reminder dated 19.8.97. Unable to get any response, she filed W.P.(C) No. 451 of 2000 before this Court under Art. 226 of the Constitution for issuance of an writ of mandamus directing the State respondents to consider her case for appointment to any post commensurate with her educational qualifications under the die-in-harness scheme. The Court disposed of the said writ petition by an order dated 24.4.2000 (Annexure-X/1) directing the State respondents to consider her case for appointment under the die-in-harness scheme. The writ petitioner then filed Contempt Case No. 61 of 2001 alleging that despite such direction of this Court, the respondents (appellants in the instant appeal) did not consider her case and thus wilfully disobeyed this Court's order. This Court disposed of the contempt petition by the impugned order dated 25.5.2001. The operative portion thereof reads as under: ".... the respondents-2 and 3 are directed to finalise the case of the petitioner in terms of the said letter dated 4.4.2001 and appoint the petitioner to the post of Sweeper within a period of 2 (two) months from the date of receipt of this order." 3. Being aggrieved by the above order, the appellants respondents have come up before this Court in the instant appeal on the ground that the learned Single Judge could not have directed the respondent Nos. 2 and 3 to appoint the writ petitioner to the post of sweeper by enlarging the scope of the original writ petition wherein this Court directed the respondents only to consider the case of the petitioner for appointment vide order dated 24.4.2000 (Annexure-X/1). It is submitted that in that order there was no direction to the respondents to appoint the writ petitioner under the die-in-harness scheme. 4. It is submitted that in that order there was no direction to the respondents to appoint the writ petitioner under the die-in-harness scheme. 4. While the instant appeal was being moved by Mr L. Shyamkishore Singh, learned senior counsel for the appellants-alleged contemnors, Mr S. Rupachandra learned counsel entered appearance on behalf of the respondent-writ petitioner and accepted notice on her behalf. Mr Rupachandra has raised a preliminary point that no appeal lies from the impugned order dated 25.5.01 in view of the provisions in Section 19 of the Contempt of Courts Act, 1971. Before embarking upon further discussion, it is considered imperative to dispose of this point. We have heard Mr L. Shyamkishore Singh, learned senior counsel and Mr S. Rupachandra, learned counsel as well as Mr Asok Potsangbam, learned Advocate General who made submission at our request to assist the Court on this point. The relevant portion of Section 19 reads as under: "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...." 5. It is argued that since, in the instant case, by the impugned order dated 25.5.2001 the High Court did not impose any punishment on the alleged contemnor-appellants, the High Court cannot be said to have passed the said order in exercise of its jurisdiction to punish for contempt, and hence no appeal lies from the said order under Section 19. In this regard, a decision in State of Marharashtra-Vs-Mahboob S. Allibhoy & Anr. (1996) 4 SCC 411 has been referred to wherein it has been held: "On a plain reading Section 19 provides that an appeal shall lie as of right from any order or decision of the High Court in exercise of its jurisdiction to punish for contempt. In other words, if the High Court passes an order in exercise of its jurisdiction to punish any person for contempt of Court, then only an appeal shall be maintainable under sub-section (1) of Section 19 of the Act. In other words, if the High Court passes an order in exercise of its jurisdiction to punish any person for contempt of Court, then only an appeal shall be maintainable under sub-section (1) of Section 19 of the Act. As sub-section (1) of Section 19 provides that an appeal shall lie as of right from any order, an impression is created that an appeal has been provided under the said subsection against any order passed by the High Court while exercising the jurisdiction of contempt proceedings. The words "any order" has to be read with the expression 'decision' used in the said sub-section which the High Court passes in exercise of its jurisdiction to punish for contempt. "Any order" is not independent of the expression 'decision'. They have been put in an alternative from saying 'order' or 'decision'. In either case, it must be in the nature of punishment for contempt. If the expression 'any order' is read independently of the 'decision' then an appeal shall lie under subsection (1) of Section 19 even against any interlocutory order passed in a proceeding for contempt by the High Court which shall lead to a ridiculous result." "4. It is well known that contempt proceeding is not a dispute between two parties the proceeding is primarily between the Court and the person who is alleged to have committed the contempt of Court. The person who informs the Court or brings to the notice of the Court that anyone has committed contempt of such Court is not in the position of a persecutor, he is simply assisting the Court so that the dignity and majesty of the Court is maintained and upheld. It is for the Court, which initiates the proceeding to decide whether the person against whom such proceeding has been initiated should be punished or discharged taking into consideration the facts and circumstances of the particular case. This Court in the case of Baradakanta Mishra-Vs-Justice Gatikrushna Mishra, C.J. of the Orissa H.C., said: (SC p.542, para 7). ".... 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. ".... 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. Such a decision would not, therefore, fall within the opening words of Section 19, sub-section (1) and no appeal would lie against it as of right under that provision." Again in the case of D.N. Taneja-Vs-Bhajan Lal it was said (SCC pp. 29-30, para 8). "The right of appeal will be available under sub-section(l) of Section 19 only against any decision or order of a High Court passed in the exercise of its jurisdiction to punish for contempt. In this connection, it is pertinent to refer to the provision of Art. 215 of the Constitution which provides that every High Court shall be a Court of record and shall have all the powers of such a Court including the powers to punish for contempt of itself. Art. 215 confers on the High Court the power to punish for contempt of itself. In other words, the High Court derives its jurisdiction to punish for contempt from Art. 215 of the Constitution. As has been noticed earlier, an appeal will lie under Sec. 19(1) of the Act only when the High Court makes an order or decision in exercise of its jurisdiction to punish for contempt. It is submitted on behalf of the respondent, and in our opinion rightly that the High Court exercises its jurisdiction or power as conferred on it by Art. 215 of the Constitution when it imposes a punishment for contempt, xxx xxx xxx 5. But even if no appeal is maintainable on behalf of the person at whose instance a proceeding for contempt had been initiated and later dropped or whose petition for initiating contempt proceedings has been dismissed, he is not without any remedy. In appropriate cases he can invoke the jurisdiction of this Court under Art. 136 of the Constitution and this Court on being satisfied that it was a fit case where proceeding for contempt should have been initiated, can set aside the order passed by the High Court." 6. In appropriate cases he can invoke the jurisdiction of this Court under Art. 136 of the Constitution and this Court on being satisfied that it was a fit case where proceeding for contempt should have been initiated, can set aside the order passed by the High Court." 6. Mr L. Shyamkishore Singh, learned senior counsel for the appellants, however, has contended that even though by the impugned order the High Court has not imposed any punishment on the alleged contemnor-appellants, from such an order an appeal lies under Section 19 before the Division Bench. In support of his contention Mr Singh has relied on the decision in R.N. Dey & Ors*-Vs- BhagyabatiPramanik& Ors. Respondents in (2000) 4 SCC 400 . It is, however, found that the said decision is clearly distinguishable. In that decision, the question as to maintainability of appeal under Section 19 was not decided. In paragraph 13 of the judgment, it is said - "13. In the present proceedings the question whether appeal under Section 19 is maintainable or not is not required to be decided finally, as in our view, facts of this case are grossly inadequate...." 7. In view of the ratio of the decision in (1996)4 SCC 411 and in the facts and circumstances of the case, we are of the opinion that no appeal from the impugned order dated 25.5.2001 lies before this Division Bench under Section 19 of the Contempt of Courts Act, 1971. 8. Significantly, nowhere in the appeal petition it is said that this is an appeal under Section 19 of the Contempt of Courts Act, 1971. A copy of the order dated 10.8.98 passed by a Division Bench of mis Court in L.P. A. No. 2 of 1998 has been produced to show that the letters patent appeal was filed before the Division Bench of this Court against the order dated 7.8.98 by a Single Judge in Contempt Case COP(C) No. 59 of 1998. The Division Bench held that no letters patent appeal lies from the said order as by the said order learned Single Judge had only issued notice of contempt. Hence, that was an interlocutory order. But, in the instant case the impugned order dated 25.5.2001 is not an interlocutory order inasmuch as the contempt proceeding was closed by the said order. The Division Bench held that no letters patent appeal lies from the said order as by the said order learned Single Judge had only issued notice of contempt. Hence, that was an interlocutory order. But, in the instant case the impugned order dated 25.5.2001 is not an interlocutory order inasmuch as the contempt proceeding was closed by the said order. When the contempt case has been closed without holding the alleged contemnors guilty of willful contempt of Court and without imposing any punishment on them, but the alleged contemnors have been given certain direction to appoint the writ petitioner to a particular post as in the instant case, purported to have been given in exercise of jurisdiction under the Contempt of Courts Act, no statutory appeal in terms of Section 19 thereof shall be maintainable. In such a case the alleged contemnor-appellants shall, however, have, right to appeal before a Division Bench as Letters Patent Appeal. Had the High Court by the impugned order closed the contempt proceedings against the alleged contemnors without giving them the direction as aforesaid, there would have been no question of their preferring any appeal against such an order. Here it is a case of alleged contemnors preferring an appeal. Paragraph 5 of the judgment in (1996)4 SCC 411 speaks about filing of appeal by the person at whose instance contempt proceedings had been initiated and later dropped or whose petition for initiating contempt proceedings has been dismissed. Such a person cannot file letters patent appeal. His remedy lies in filing on S.L.P. in the Supreme Court under Article 136 of the Constitution. We treat the instant appeal filed by alleged contemnors as letters patent appeal and admit it as such. Mr S. Rupachandra, learned counsel, has already accepted notice on behalf of the respondent writ petitioner. 9. As regard to by the learned counsel for the parties, the matter is taken up for final hearing and disposal. We have heajrd learned counsel for the parties and have considered the records of the case. 10. Mr S. Rupachandra, learned counsel, has already accepted notice on behalf of the respondent writ petitioner. 9. As regard to by the learned counsel for the parties, the matter is taken up for final hearing and disposal. We have heajrd learned counsel for the parties and have considered the records of the case. 10. Once we hold that the instant appeal is maintainable as letters patent appeal, the short question that falls for consideration in this appeal is whether the learned Single Judge by the impugned order dated 25.5.2001 passed in Contempt Case No. 61 of 2001 could have directed the alleged contemnors-appellants to appoint the writ petitioner to a particular post in exercise of contempt jurisdiction, whereas the writ Court by the order dated 24.4.2000 passed in the writ petition W.P.(C) No. 451 of 2000 directed the respondents (alleged contemnor-appellants in the instant appeal) only to consider the case of the writ petitioner for appointment under the die-in-harness scheme. This question has to be answered in the negative. For, the discretion to the Court is to be exercised for maintenance of the Court's dignity and majesty of law by punishing the person found guilty of wilful disobedience to Court's judgment, decree, direction, order, writ etc. It is not for the Court exercising contempt jurisdiction to give new direction to the alleged contemnors which is not in the writ Court's order disposing of the writ petition under Article 226 of the Constitution and for alleged disobedience of which order the contempt proceedings are sought to be initiated. 11. In the result, the impugned order dated 25.5.2001 passed by the learned Single Judge in Contempt Case No. 61 of 2001 so far as it relates to giving direction to the alleged contemnor-appellants is quashed and set aside. This appeal treated as letters patent appeal is allowed. The parties are left to bear their own costs. 12. Before we part with this matter, we would like to say that at the time of hearing learned counsel for the petitioner produced a copy of the Govt. This appeal treated as letters patent appeal is allowed. The parties are left to bear their own costs. 12. Before we part with this matter, we would like to say that at the time of hearing learned counsel for the petitioner produced a copy of the Govt. office order No. 287 dated 30.8.2001 showing that in compliance with this Court's order dated 24.4.2000 in W.P.(C) No. 451 of 2000 and order dated 25.5.2001 in Contempt Case No. 61 of 2001 the writ petitioner-respondent has been appointed as Sweeper temporarily under the die-in-harness scheme subject to the outcome of the instant appeal (Contempt Appeal No. 4 of 2001). In view of this, learned counsel for the writ petition respondent prays that she be allowed to continue in her post. We leave this matter for consideration of the Government.