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2002 DIGILAW 84 (JK)

Service Selection Board, J&K v. Mohinder Paul

2002-04-02

S.K.GUPTA, V.K.JHANJI

body2002
PER S.K.GUPTA,J: 1. We have heard Mr. Sunil Sethi. learned counsel for the petitioner as well as Mr. M.K. Bhardwaj, learned counsel for the respondents in extenso. 2. By this petition, petitioner sought to review the judgment and order dated: 19-10-2001 passed by Division Bench of this court in CIMA 43/2000. 3. The sole grievance of the petitioner raised in this petition is that in response to the stand taken by the respondents about the maintainability of the appeal, two judgments of the Honble Supreme Court i.e. (Sic) 2009 (10) SCC 285 and 2000 (4) 629. which covered the situation and held the appeal maintainable against an order passed on contempt by which request for dropping contempt proceedings has not been accepted, have not been referred at all and thus amounted to an error apparent on the face of record to justify the innovation of the power of review. It is further submitted that when the order of contempt of court is beyond jurisdiction, the appeal will lie against such an order. 4. The respondents counsel, on the other hand, however in controverting the contention of the petitioners advocate submitted that there is no provision for review of the order passed under the contempt of court under the J&K Contempt of Court Act. 1997. He further submitted that the directions given by the court vide its judgment dated: 07-08-1992 have not been modified in any manner by the learned Single Judge while disposing of the contempt application and the writ-petition by the composite order dated: 30-01-1999. Mr. M.K. Bhardwaj. respondents advocate further laid emphasis that in the order of 30-01-1999. the learned Single Judge has reiterated the directions made in the order dated: 07-08-1992. the import of which was to see that the claims of the writ-petitioners are considered independently and before other appointments are made. According to Mr. Bhardwaj, -the learned counsel for the respondents, the learned Single Judge only observed that the plea taken by the respondent is not justified and the respondent is directed to reconsider the entire matter and see that the order is implemented in letter and spirit and the compliance report be submitted to the court within a period of two months from the date they received a copy of the order and in any case by 30-04-1999. No LPA has been preferred against the disposal of the said writ-petition by composite order. 5. No LPA has been preferred against the disposal of the said writ-petition by composite order. 5. As regards the plea raised by Mr. Sunil Sethi in his objections for review explicitly delineated above, it will be advantageous to reproduce the relevant observations of the Supreme Court made in the case State of Maharashtra Vs. Mahboobs Allibhoy, (1996) 4 SCC 411. which are as under:- "An appeal is a creature of a statute, unless a statute provides for an appeal and specifies the order against which an appeal can be filed, no appeal can be filed or entertained as a matter of right or course. Section 19 of the Contempt of Courts Act provides that an appeal shall lie as of right from any order or decision of High Court in exercise of its jurisdiction to punish for contempt. Thus 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. 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 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. So construed an appeal cannot lie under Sub-Section (1) of Section 19 against an interlocutory order passed in a proceeding for contempt by the High Court. Therefore, no appeal is maintainable against an order dropping proceedings for contempt or refusing to initiate a proceedings for contempt. This is apparent not only from Sub-Section (1) but also from Sub-Section (2) of Section 19." 6. The order passed by the learned Single Judge in appeal was not an order/decision under Section 19 of the Contempt Act when right of appeal is available to the appellant. The Act specifically provides a statutory right guaranteed to file an appeal against the kind of order/ decision. Viewing the controversy in its true perspective, the appeal was found incompetent which was dismissed. The Act specifically provides a statutory right guaranteed to file an appeal against the kind of order/ decision. Viewing the controversy in its true perspective, the appeal was found incompetent which was dismissed. The expression in the exercise of its jurisdiction to punish for contempt in Sub-Section (1) of Section 19 as a mandate of the Legislation directing the High Court to exercise its power in a particular manner and that manner being only to punish for contempt. As regards the non-consideration of the judgments cited by Mr. Sunil Sethi. learned counsel for the appellant in the petition, it is pertinent to point out that the judgment 2000 (4) SCC 629 deals with distinct question even not remotely connected with the controversy involved in this case factually and legally. The other judgment referred in the petition pertains to a direction to the State Government to absorb the respondents against a suitable post either in Government Department or any public sector undertaking and such an order was held to be wholly without jurisdiction and could have been made in proceedings under the Contempt of Courts Act or under the Art. 215 of the Constitution. It is by now a settled proposition of law that the court cannot enlarge the scope of a writ-petition in an order passed in the contempt petition. In the instant case, at the cost of repetition, it may be pointed out that while disposing of the contempt petition, the learned Single Judge has only reiterated the directions given by the writ court dated: 07-08-1992 without any modification. This argument put-across by Mr. Sunil Sethi has also been taken care of by the Division Bench of this court while dismissing the appeal as incompetent on 19-10-2001. the extract of which is reproduced as under:- "Mr. Sunil Sethi, learned counsel for the appellant, however, could not dispel the preliminary objections raised by the respondents advocate as to the maintainability of the appeal either on fact or on law and the judgment referred to and relied upon by Mr. Sethi do not have any barring to the matter in controversy involved in this case. For the reasons aforesaid, we are of the opinion that there is substance in the preliminary objections raised by the respondents advocate, Mr. M.K. Bhardwaj, with regard to the maintainability of the appeal. The appeal, in our view, is incompetent and is, accordingly, dismissed." 7. Sethi do not have any barring to the matter in controversy involved in this case. For the reasons aforesaid, we are of the opinion that there is substance in the preliminary objections raised by the respondents advocate, Mr. M.K. Bhardwaj, with regard to the maintainability of the appeal. The appeal, in our view, is incompetent and is, accordingly, dismissed." 7. That apart, a right of a review does not exist unless conferred by law or by necessary implication. Ordinarily, the question whether a review petition should be accepted or rejected has to be decided with reference to the grounds on which review is permissible and not on the merits of the claim. In order that an error may be a ground for review, it must be one apparent on the fact of the record. There is no provision to file an application asking for review of a judgment and order passed in contempt petition under the Contempt of Court Act. Power of review can be exercised only when conferred by law. It is further advantageous to point out the Contempt of Code is a complete Code and also provides procedure. 8. In the facts and circumstances of the case discussed above, we are clearly of the view that neither review of an order in an appeal against the order passed in contempt petition under Contempt of Court Act, is permissible nor the order under review allegedly vitiated by error apparent on the face of the record, can be reheard. The review petition in our opinion is devoid of any merit and is, accordingly dismissed.