Research › Search › Judgment

Rajasthan High Court · body

2008 DIGILAW 2320 (RAJ)

Kalyan Sahai Gaur v. Sh. Sudheer Bhargava

2008-10-14

RAGHUVENDRA S.RATHORE

body2008
JUDGMENT 1. - This contempt petition has been filed by Kalyan Sahai Gaur and Kailash Chand Sharma with the prayer that the same may be allowed and cognizance be taken against the respondents/contemnors for committing contempt of order dated 05.01.1999 passed by the High Court in S.B. Civil Writ Petition No. 665/1998. Further it is prayed that respondents be punished adequately for committing contempt of this Court. It is also prayed that compliance of the order dated 05.01.1999 may kindly be ensured. 2. The petitioners have filed this contempt petition in the year 2008 for non-compliance of the order passed on 05.01.1999 and that the contempt proceedings be initiated against the respondents-contemnors for having committed the contempt and they be punished for the same. 3. The petitioners were formerly employees of Central Government, holding the post of NDSI, whose services were absorbed in the State of Rajasthan on the post of PTI Grade-III w.e.f. 1973 after adding Rule 60 by amending Rajasthan Subordinate Service Rules, 1971. One of the condition in the Rules was that the inter se seniority shall remain unchanged. 4. The respondents had granted the benefit of upgradation to two persons junior to the petitioners on the post of PTI Grade-II w.e.f. 22.12.1975, in violation of the aforesaid conditions of the Rules. Therefore, the petitioners filed a writ petition (665/98) claiming upgradation on the post of PTI Grade- II w.e.f. 22.12.1975 as the same had already been granted to the persons junior to them. 5. The said writ petition was allowed by the High Court on 05.01.1999. The operative portion of the judgment reads thus:- "The writ petition accordingly stand allowed and the respondents are directed to grant the petitioners benefit of up gradation with effect from December 22, 1975 or there after with all consequential benefits in second grade in accordance with the order of revision in pay scale from time to time from the date junior persons to them were granted the said benefit. The inter-se seniority list shall remain unchanged as directed in new Rule 6C (vi) inserted in Rajasthan Educational Subordinate Service (Amendment) Rules, 1976 vide notification dated October 14, 1976. The respondents are expected to complete the aforesaid exercise within three months from the date of receipt of this order. Costs easy." 6. The inter-se seniority list shall remain unchanged as directed in new Rule 6C (vi) inserted in Rajasthan Educational Subordinate Service (Amendment) Rules, 1976 vide notification dated October 14, 1976. The respondents are expected to complete the aforesaid exercise within three months from the date of receipt of this order. Costs easy." 6. Thereafter, on obtaining the certified copy, it was found that the date of judgment was wrongly mentioned as 05.01.1998 instead of 05.01.1999. Therefore, an application for correction was moved and the same was allowed on 10.02.1999. 7. The time provided to the respondents, in the order of the High Court dated 05.01.1999, was a period of three months from the date of receipt of the order to complete the exercise of granting the upgradation to the petitioners w.e.f. 22.12.1975 or thereafter, with all consequential benefits. The time so provided expired but no order with regard to grant of upgradation to them on the post of PTI Grade-II w.e.f. 22.12.1975 and the consequential benefits thereof had been passed. The petitioners had sent a notice to the respondents, through their counsel, on 05.05.2008 to comply with the order dated 05.01.1999 passed by the High Court. When no response was received to the said notice, the present contempt petition came to be filed by the petitioners in the month of June 2008. 8. In this contempt petition, filed on account of disobedience of the judgment passed by the High Court on 05.01.1999, prayer for compliance and for initiation of contempt proceeding for committing the contempt has been made, by filing the same in the month of 2008. Therefore, the first and foremost question which arises for consideration is with regard to limitation prescribed under law in respect of actions for contempt. Section 20 of the Contempt of Court Act, 1971 reads as under:- 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. In other words, the proceedings for contempt are not to be initiated after the expiry of a period of one year from the date on which the contempt is committed. 9. In other words, the proceedings for contempt are not to be initiated after the expiry of a period of one year from the date on which the contempt is committed. 9. A perusal of the provision of Section 20 of the Act of 1971 goes to show that the period of one year provided therein to initiate any proceedings for contempt, by a Court is a condition precedent to the exercise of power of the Court under the Act. In other words, the period of one year under Section 20 of the Act of 1971 is not a period of limitation, as is ordinarily understood. Therefore, the provisions of Limitation act of 1963 are not attracted nor can be resorted to Section 20 of the Act puts an embargo on initiation of proceedings, either suo-motu or otherwise, if the alleged contempt has been committed prior to one year. Therefore, in the instant case, this contempt petition is grossly belated to initiate the proceedings for contempt, as contempt had been committed in the month of May, 1999 and the contempt petition has been filed only in the month of June, 2008. In such view of the matter, this Court cannot initiate proceedings for contempt under the Act of 1971 as the period of one year had expired long back, from the date on which the contempt is alleged to have been committed. 10. As mentioned above, the judgment passed by the High Court provides that the respondents were to complete the exercise, as directed therein, within three months from the date of receipt of the order. The judgment was passed in January 1999 and after expiry of the period of three months i.e. upto the end of the month of April, 1999 the compliance of the same had not been made. Consequently, there had been disobedience, on the part of the respondents, of the order passed by the High Court on 05.01.1999. Therefore the contempt of the High Court, alleged to have been committed by the respondents in the instant case, was from the month of May, 1999. The limitation provided under the Act of 1971 is a period of one year from the date on which the contempt is committed. Therefore the contempt of the High Court, alleged to have been committed by the respondents in the instant case, was from the month of May, 1999. The limitation provided under the Act of 1971 is a period of one year from the date on which the contempt is committed. After the expiry of the period of one year from the alleged contempt, the law provides that no cognizance and initiation of the proceedings for contempt, either on its motion or otherwise, can be taken by any Court. The present petition, with the request for initiating the contempt proceedings against the respondents, has been filed in the month of June, 2008 that is to say admittedly after a period of about nine years from the date of alleged contempt, which is much after the time, as prescribed under the law. Even otherwise, the petitioners in the instant case have not given any explanation, much less to say satisfactory explanation, in this contempt petition for the inordinate delay in filing of the same. 11. This leads us to another aspect of the matter, that is with regard to the power of the High Court under Article 215 of the Constitution of India as the judgment dated 05.01.1999 was passed by the High Court. The contention of the learned counsel for the petitioners also is that in exercise of the powers under Article 215 of the Constitution by the High Court there is no time limit and the said power is not to be restricted. The moot question is as to whether the power of the High Court under Article 215 of the Constitution of India has been abrogated by the Act of 1971 which has been enacted by the Parliament, for which it has the competency. 12. The Hon'ble Supreme Court in the case of S.K. Sarkar v. Vinay Chandra Misra, reported in AIR 1981 SC 723 has held that the Parliament has, by virtue of entries in List I and III of the VII Schedule, power to define and limit the powers of the Courts in punishing for contempt of Court and to regulate their procedure in relation thereto. Furthermore, in the case of Mohhamed Ikram Hussain v. The State of U.P. & Ors., reported in AIR 1964 SC 1625 , it has been laid down that there can be no curbs on the power of the Supreme Court and the High Court, except those contained in the Contempt of Court Act.In the case of Sukhdev Singh v. Hon'ble C.J., S. Teja Singh and the Hon'ble Judges of the Pepsu High Court at Patiala, reported in AIR 1954 SC 186 , it has been laid down by the Apex Court that the Supreme Court or the High Court being court of record, derive their power to commit for contempt of itself. Similarly, in the case of Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujrat & Ors., AIR 1991 SC 2176 , it has been held that the High Court derives power to commit for contempt of Subordinate Courts from the Constitution. 13. Prior to the coming into force of Contempt of Court Act, 1971, no statutory limitation was prescribed. But delay was an element which was to be taken into consideration as the contempt proceedings were taken to be of a summary nature and ordinarily it should be promptly taken. Though, there was no rule as to the time within which the contempt matters were to be taken before the Court but still the same were to be brought to the notice of the Court quickly. Therefore, delay in taking up the proceedings was normally regarded fatal and if there was any, the same was to be explained. 14. The Sanyal Committee too considered about prescribing a period of limitation. It said that, Limitation contempt proceedings are of a summary nature and promptness is the essence of such proceedings. Any delay should be fatal to such proceedings, though there may be exceptional cases when the delay may have to be overlooked but such cases should be very rare indeed. From this point of view we considered whether it is either necessary or desirable to specify a period of limitation in respect of contempt proceedings. The period, if it is to be fixed by statute, will necessarily have to be very short and provisions may also have to be made for condoning delay in suitable cases. From this point of view we considered whether it is either necessary or desirable to specify a period of limitation in respect of contempt proceedings. The period, if it is to be fixed by statute, will necessarily have to be very short and provisions may also have to be made for condoning delay in suitable cases. We feel that on the whole instead of making any hard and fast rule on the subject the matter may continue to be governed by the discretion of the Courts hitherto for. 15. The Joint Select Committee of Parliament on Contempt of Court (Bhargava Committee), after examining the report of Sanyal Committee said that, The Committee are of the opinion that contempt procedures by their very nature should be initiated and dealt with as early as possible. It was brought notice to the Committee that in some cases contempt proceedings have been initiated long after the alleged contempt had taken place. The Committee therefore consider it necessary and desirable that a period of limitation should be specified in respect of actions for contempt and have accordingly laid down in the new clauses a period of one year at the expiration of which no proceedings for contempt should be initiated. 16. The principle of law, therefore, in respect of powers of the High Court under Article 215 of the Constitution of India and the intention behind Section 20 of the Act of 1971 as indicated in the pre-legislative discretions, mentioned above, is that the said power is to be regulated and not to be abrogated. In other words, the powers of the High Court under Article 215 of the Constitution of India to commit for contempt of itself is derived from the Constitution but the said power can be defined by the Parliament and to regulate its procedure in relation thereto. 17. In view of the aforesaid, I am of the considered opinion that the powers of the High Court under Article 215 of the Constitution of India, in respect to commit for contempt of itself, is not unlimited and initiation of any proceedings for contempt cannot be made at any later point of time. 17. In view of the aforesaid, I am of the considered opinion that the powers of the High Court under Article 215 of the Constitution of India, in respect to commit for contempt of itself, is not unlimited and initiation of any proceedings for contempt cannot be made at any later point of time. Even if the period of one year for initiation of proceedings for contempt, from the date on which the contempt is alleged to have been committed under the provisions of Act of 197,1 is not to be strictly applied, then there has to be a reasonable time within which such proceedings can be initiated by the High Court from the date on which the contempt had been committed. In such a situation, a period of six months over and above to the one prescribed under the act of 1971 would be a reasonable period for initiation of contempt proceedings by the High Court in exercise of powers under Article 215 of the Constitution of India. 18. It is also to be noted that if an order/judgment is passed by the High Court and the compliance of the same had not been made, for bonafide reasons or deliberately or a reasonable time for seeking compliance has expired then the person in whose favour the said order had been passed is not left remedyless. In the case of Commissioner Housing Board v. C. Muddaiah, reported in (2007) 7 SCC 689 , the Hon'ble Supreme Court, in a case where a contempt petition in respect of non-compliance of the directions in the earlier writ petition was dismissed, has held as under:- "The writ petitioner, therefore, had legitimate grievance against such directions. A fresh substantive petition, hence, could be filed by him and since he was entitled to such relief, the Division Bench was justified for granting prayer." Further, the Hon'ble Court has held in para 32 as follows:- "We are of the considered opinion that once a direction is issued by a competent court, it has to be obeyed and implemented without any reservation. If an order passed by a court of law is not complied with or is ignored, there will be an end of the rule of law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. If an order passed by a court of law is not complied with or is ignored, there will be an end of the rule of law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected." 19. For the reasons mentioned hereinabove, this contempt petition deserves to be dismissed on the ground of delay. However, the petitioners would be at liberty to file fresh petition for implementation/compliance of the order dated 05.01.1999. In the fact and circumstances of the case, the cost is made easy. Petition Dismissed *******