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2010 DIGILAW 605 (JK)

State v. Vinod Kumar Verma

2010-12-08

MOHAMMAD YAQOOB MIR, Virender Singh

body2010
Per Virender Singh, J. 1. The respondents/writ petitioners earned a judgment in their favour on 14.11.2007 passed in SWP No. 1528/2001 to the effect that their case shall be accorded consideration in the light of the judgment dated 14.10.2004 rendered by Division Bench of this Court in SWP No. 2191/2002 connected with LPA Nos.73/2003 & 210/2003 entitled `Ashok Kumar Raina v. State of J&K and others'. The consideration was to be accorded within a stipulated period of two months. When for a considerable long period the needful was not done, the respondents/writ petitioners were constrained to file contempt petition [Contempt(SWP) No. 112/2009], in which, after issuance of notice, statement of facts (compliance report) was filed. The learned Single Judge did not find the compliance report in consonance with the directions issued by the learned Writ Court and vide order dated 20.05.2010 directed the contemnors to file better affidavit/ compliance report indicating the steps taken by them in implementing the judgment by showing names of the respondents/writ petitioners in the seniority list of Junior Engineer (Civil), as also in all subsequent seniority lists, over and above the persons who are junior to them. Aggrieved of the said order, initially one Sh. B.A. Dhar, Commissioner/Secretary to Government, Power Development Department, J&K Civil Secretariat, Srinagar, who was not party/respondent to the contempt petition, filed APLPA No.22/2010 seeking permission to file appeal. However, the said application was dismissed by the Division Bench of this Court on 18.10.2010 observing that aforesaid Mr. Dhar could not be treated as a `person aggrieved' and that it was the State Government whose action was found by the Contempt Court not in compliance to the directions of the Writ Court. Since the said application was filed with some delay, the application for condonation of delay also stood dismissed. It is how the instant letters patent appeal is filed before us by the State through Commissioner/Secretary to Government, Power Development Department. 2. On a specific query put to Mr. Since the said application was filed with some delay, the application for condonation of delay also stood dismissed. It is how the instant letters patent appeal is filed before us by the State through Commissioner/Secretary to Government, Power Development Department. 2. On a specific query put to Mr. Basotra at the very outset, as to how the present appeal is maintainable against the impugned order vide which the learned Single Judge has simply directed the respondents/contemnors to file better affidavit/ compliance report making their stand clear in tune with the judgment passed by the learned Writ Court, he submits that the impugned order virtually decides the contempt petition as the compliance report already submitted by the respondents/contemnors has not found to be in consonance with the directions issued by the learned Writ Court and, therefore, the said order attains finality. He then submits that even otherwise when leave to appeal was sought by Sh. B.A. Dhar, Commissioner/Secretary to Government, PDD, while dismissing his application, the Division Bench of the coordinate jurisdiction considering Mr. Dhar as not a person aggrieved, observed vide order dated 18.10.2010 that the option to question the order rests with the State and its officers who issued the order in this behalf. According to Mr. Basotra, the said appeal was not filed by the State Government or the Commissioner concerned and for that reason the leave to appeal was declined. According to Mr. Basotra, order passed by the coordinate Bench, in fact, has granted the State a right to file letters patent appeal through its Commissioner/Secretary, therefore, the present appeal is maintainable. 3. According to Mr. Basotra, the order passed by the learned Single Judge otherwise amounts to deviation from the original judgment, which direction can be passed in the proceedings under Article 226 of the Constitution only and not in contempt proceedings. The learned Single Judge has gone beyond the original judgment and such like order would fall within the clause (12) of J&K Letters Patent. If the present case is considered from that angle, the appeal at hand will be maintainable. 4. In support of his submissions, Mr. Basotra relies upon a Division Bench judgment of this Court rendered in `Mohd. Shafi Pandit v. Mohd. Yousuf Magray & Ors.' 2003 (1) S.L.J. 18. 5. In our view, the submissions advanced by Mr. If the present case is considered from that angle, the appeal at hand will be maintainable. 4. In support of his submissions, Mr. Basotra relies upon a Division Bench judgment of this Court rendered in `Mohd. Shafi Pandit v. Mohd. Yousuf Magray & Ors.' 2003 (1) S.L.J. 18. 5. In our view, the submissions advanced by Mr. Basotra do not advance his cause to overcome the basic hurdle of maintainability of the instant appeal. No doubt, while disposing of an application filed by aforesaid Mr. Dhar seeking leave to file appeal against the impugned order, the Division Bench of the coordinate jurisdiction in its order dated 18.10.2010 (photo-stat copy thereof annexed as Annexure-R10) has observed that the option to question the order rests with the State and the officer who had issued the order in compliance to the basic judgment rendered by the learned Writ Court, that does not mean that the appeal by itself would become maintainable. Even otherwise, while dismissing the application, the State and its authorized functionaries have been left free to have resort to the remedies available to them under law. The State has filed the present appeal considering in its wisdom to be maintainable, which aspect in any case requires to be addressed. 6. Section 19 of the Contempt of Courts Act provides: "an appeal shall lie as of right from any order or decision of High Court in exercise of its jurisdiction to punish for contempt....." The words `any order' at the first instance seem to suggest that appeal against any order including interlocutory order or the order by which the proceedings initiated would be maintainable. However, this controversy was set at rest by the Hon'ble Supreme Court in case titled `State of Maharashtra v. Mahboob S. Allibhoy and anr.' (1996) 4 SCC 411 . The relevant observations made by the Apex Court are reproduced as under:- ".......The words "any order" has to be read with the expression `decision' used in the 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 form saying `order' or `decision'. In either case, it must be in the nature of punishment for contempt. "Any order" is not independent of the expression `decision'. They have been put in an alternative form saying `order' or `decision'. In either case, it must be in the nature of punishment for contempt. So construed an appeal cannot lie under subsection (1) of Section 19 against any interlocutory order passed in a proceeding for contempt by the High Court...." 7. Considering the question of maintainability of an appeal filed by contemnor(s) against an order passed by the learned Single Judge in a contempt petition observing that the directions of the Court passed in a particular petition and other petitions have not been complied with and, therefore, finding it prima facie to be a case contempt, directed the Registry to frame the rule against the respondents/contemnors therein, the Division Bench of this Court while referring to various judgments of Hon'ble Supreme Court including Mahboob S. Allibhoy's case (supra) and of this Court also ultimately held that such an order was not appealable under Section 19 of Contempt of Courts Act. 8. Another Division Bench judgment of this Court rendered in case titled `Brig. Tripat Singh v. Manzoor Brick Killin' 2000 SLJ 207 can also be usefully read in this regard. In the said case the alleged contemnors were found prima facie guilty of contempt by the learned Single Bench and thereafter show cause notice was issued to them. An appeal was filed against said order under Section 19 of the Contempt of Courts Act. It was dismissed by the Division Bench being not maintainable. 9. The admitted position before us is that till date after show-cause notice was issued to the contemnors for initiating contempt proceedings, no further direction has been issued to frame rule in the contempt proceedings. 10. Even otherwise, it is not the requirement of law under the Contempt of Courts Act to issue any notice to the alleged contemnor to show cause, why contempt proceedings be not initiated against him. Such a course is normally taken at the first instance by the Court dealing with contempt proceedings to enable the alleged contemnor to implement the Court's order so that he can save himself of the possible contempt. It is always open to the Court to issue notice to the contemnor at the very outset asking him as to why he should not be punished for willful disobedience of the order. It is always open to the Court to issue notice to the contemnor at the very outset asking him as to why he should not be punished for willful disobedience of the order. In the present case also, it appears that when the learned Single Judge found that the compliance report already submitted was not in consonance with the judgment sought to be implemented and the order on 29.04.2010 passed by Principal Secretary to Government, Power Development Department, was not passed in compliance to the judgment of the learned Writ Court in its letter and spirit, another opportunity was given to the respondents/contemnors to file better affidavit/ compliance report, rather making it specifically clear to the respondents/contemnors that the judgment is supposed to be implemented in a particular manner so as to take it as compliance in letter and spirit and not in the way as it has been done vide order dated 29.04.2010. Although specifically there is no reference in the impugned order to the Government Order dated 29.04.2010, but Mr. Basotra states that the stand taken by respondents/ contemnors in the compliance report is virtually the same as is said in the aforesaid order. The main assertion in the compliance report was that since the cadre was closed, therefore, no other application could be entertained to which the learned Single Judge did not agree and observed that it is a breach of Court order. It cannot be said that the learned Single Judge has returned a finding against the respondents/contemnors so as to call it a full dressed order or decision punishing the contemnors. In our considered view, it was just an interlocutory order giving an opportunity to the respondents/contemnors to make their stance more clear by filing better affidavit/ compliance report so that the contempt proceedings are brought to its logical end. 11. The judgment rendered in `Mohd. Shafi Pandit's case (supra) and relied upon by Mr. In our considered view, it was just an interlocutory order giving an opportunity to the respondents/contemnors to make their stance more clear by filing better affidavit/ compliance report so that the contempt proceedings are brought to its logical end. 11. The judgment rendered in `Mohd. Shafi Pandit's case (supra) and relied upon by Mr. Basotra very emphatically to strengthen his submissions, in our considered view, would be of no help to him inasmuch as in the said case, in contempt proceedings, the learned Single Judge had passed two orders viz., (i) a direction to the government for payment of salary to the petitioners therein, who were not the government employees, but were the employees of a cooperative society namely CONFED; and another subsequent order directing implementation of the earlier order qua disbursement of the arrears and while doing so the objections raised by the respondents/contemnors through a miscellaneous application were also overruled. In that eventuality, the Division Bench of this Court observed that such orders could not have been passed in contempt proceedings as they were in essence orders passed in exercise of writ jurisdiction and, therefore, those orders were held judgment within the meaning of clause (12) of Letters Patent and, as such, appealable. In fact, the orders passed in the aforesaid case were virtually in the nature of deviation from original judgment sought to be implemented. 12. In the case at hand that is not the fact situation. Here the learned Single Judge has not made any deviation from the original judgment rendered by the learned Writ Court, rather gave an opportunity to comply with the order in a particular direction, which was absolutely in tune with the original judgment passed by the writ Court and sought to be implemented through contempt proceedings. In our view, the basic fabric of the judgment of learned Writ Court is not disturbed/altered by the learned Single Judge. 13. Beside joining the issue on the maintainability of the instant appeal, learned counsel for the respondents submit that the excuse of closing of the cadre as taken in the Government Order dated 29.04.2010 runs contrary to the earlier order dated 24.09.2007. We, however, refrain from commenting upon this aspect as this would amount to stretching the case too far on merits, which exercise is not required to be done by us. We, however, refrain from commenting upon this aspect as this would amount to stretching the case too far on merits, which exercise is not required to be done by us. Even, otherwise, the respondents/ writ petitioners can respond to the better reply/ compliance report to be submitted by the contemnors, in which all the aspects including the present one can also be agitated. 14. While summing up, we hold that any interlocutory order passed during the course of contempt proceedings is not appealable under Section 19(1) of Contempt of Courts Act. An appeal can lie only when an order of punishment is passed. Furthermore, an appeal can also lie when during the course of contempt proceedings any direction in deviation to the original judgment is issued. 15. Viewed thus, we find that the order dated 20.05.2010, impugned herein, is not an order appealable under Section 19(1) of the Contempt of Courts Act. Therefore, the instant Letters Patent Appeal is dismissed on that count alone being not maintainable. Connected CMP also stands disposed of accordingly.