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2016 DIGILAW 1123 (KER)

Mariamma Thomas v. S. M. Vdayanand

2016-12-17

DAMA SESHADRI NAIDU

body2016
ORDER : Dama Seshadri Naidu, T. FACTS & PROCEDURAL HISTORY: The petitioners, the two legal heirs of a deceased abkari licencee, file W.P.(C) No. 3560 of 2011 claiming that the authorities should credit to the licencee's account the departmental-management fee they had collected, and it should also extend the benefit under the amnesty scheme. The petitioners relied on the judgment of this Court in O.P. No. 8901 of 1995 dated 11.08.2000. As seen, a Division Bench, in W.A. No.1944 of 2015, affirmed the ratio of the judgment in O.P. No.8901 of 1995. Precedentially bound, I allowed W.P.(C) No. 3560 of 2011 on 21.10.2015. 2. Later, complaining that the authorities had not complied with the judgment and not extended the benefit despite the judicial directive, one of the writ petitioners filed this Contempt Case. 3. The record reveals that the State appealed against the judgment dated 21.10.2015; it was after the petitioner's filing the Contempt Case, though. A learned Division Bench, through its judgment dated 11.11.2016 in W.A. No. 2189 of 2016, refused to interfere. It has, in fact, affirmed the judgment following the ratio in W.A. No. 1944 of 2015 : 2015 ICO 1556. Nevertheless, the Division Bench, considering the Government Pleader's submission, granted two weeks' time for the authorities to comply with the judgment in W.P.(C) No. 3560 of 2011. But the respondents did not comply with the judgment; instead, they took shelter under the excuse that they had already filed a Special Leave Petition before the Hon'ble Supreme Court. So the petitioner has pressed for adjudication of the Contempt Case on merits. 4. I reckon that the learned Division Bench has dismissed W.A. No. 2189 of 2016 summarily a dismissal in limini, at that. A perusal of the judgment in writ appeal, however, amply demonstrates that their Lordships, too, have held that the dictum laid down in W.A. No. 1944 of 2015 squarely covers the issue. Further, they have fixed a time frame for compliance, however. 5. The writ appeal dismissed, the petitioner pressed for the adjudication of the Contempt Case. True, the judgment in the writ petition (let us call it "the primary order") has fixed no time-frame; this deficiency was supplied by the Division Bench, which directed the authorities to comply with the judicial directive in the primary order within two weeks. The authorities violated it. True, the judgment in the writ petition (let us call it "the primary order") has fixed no time-frame; this deficiency was supplied by the Division Bench, which directed the authorities to comply with the judicial directive in the primary order within two weeks. The authorities violated it. Of course, the 'wilful' part of the violation is a matter for adjudication. Now, the question is, can a bench of a Single Judge continue the contempt proceedings in the face of a judgment in writ appeal. PLEA: 6. Sri M.G. Karthikeyan, the learned counsel for the petitioner, has spared no efforts to impress on me that a single judge could entertain the contempt case despite a later judgment of a Division Bench in appeal. So this contempt case is maintainable. In the alternative, he has urged that, if the court takes a contrary view, it may direct the registry to post the same contempt case before the Division Bench concerned. According to him, compelling the petitioner to file a fresh contempt case is a procedural rigmarole best avoided. IS THERE ANY MERGER ? 7. Generally, the primary order, as is well-settled, merges in the order of the appellate court. But sometimes the principle of merger may pose a problem. To illustrate the point, let us take a none-too-unusual problem: a Single Judge directs a party to do or abstain from doing a particular act; the direction disobeyed, the other party initiates contempt proceedings. Meanwhile, in appeal, the order stands affirmed. In such a situation, the question is whether the contempt proceedings should be initiated afresh before the appellate bench or continued before the bench of first instance. 8. In a commentary of commendable scholarship, Contempt of Courts Act, Samaraditya Paul, Lexis Nexis, 5th Ed. examined the precedential cleavage on this issue. The learned author, to begin with, observes that the doctrine of merger assumes importance in this context. He, then, goes on to analyse the decided cases. In K.K. Nair v. Mohan Das & Am. 8. In a commentary of commendable scholarship, Contempt of Courts Act, Samaraditya Paul, Lexis Nexis, 5th Ed. examined the precedential cleavage on this issue. The learned author, to begin with, observes that the doctrine of merger assumes importance in this context. He, then, goes on to analyse the decided cases. In K.K. Nair v. Mohan Das & Am. : 1989 ICO 927, a learned Single Judge of the Andhra Pradesh High Court has examined the relevant provisions and held: (a) The doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that whenever there are two orders, one by the inferior authority and the other by the superior authority, there is merger of the two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. The application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction. (b) It is settled law that the criterion to decide whether the order of the single judge has merged with the order of the appellate judge is the nature of the hierarchy of the forums provided. (c)... (omitted observations made in the context of Rules 12 and 13 of the AI Contempt of Court Rules, 1980) (e) When the Appellate Court merely confirms the order or direction of the Court of first instance with no modification; then, while implementing the order, it is the observations or the directions, etc., as originally issued by the Court of the first instance which constitute the basis for wilful disobedience or wilful breach for initiation of the proceedings for contempt. And, in such cases, the Court of the first instance can take cognizance of the proceeding for contempt. (f) If the appellate Court, however, not only confirms the order of the Court o first instance but also gives an additional or a different direction, then an; disobedience of such direction would amount to contempt of the Appellant Court and the Appellate Court would be the proper forum to take cognizance. (f) If the appellate Court, however, not only confirms the order of the Court o first instance but also gives an additional or a different direction, then an; disobedience of such direction would amount to contempt of the Appellant Court and the Appellate Court would be the proper forum to take cognizance. (g) When a matter is carried to the Supreme Court, and the Supreme Court disagrees with the Division Bench of -the High Court but upholds the direction of the Court of the first instance, then any violation of sue direction would be in substance the violation of the direction given by the Court of the first instance. So the Court of first instance would be competent to take cognizance of the matter. (emphasis added) 9. The learned author observes that the Supreme Court has considered in Kunhyammud v. State of Kerala, (2000) 6 SCC 359 : 2000 ICO 343 the merger principle, but it was basically in the context of special leave petitions. As seen, while discussing the principle, the Supreme Court quoted from the Corpus Juris Secundum the following passage: "To merge" means to sink or disappear in something else; to become absorbed or extinguished; to be combined or to be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. 10. Thereafter, in applying the merger theory to special leave petitions, the Apex Court has observed: Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make a difference if the order is a speaking or a non-speaking one. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make a difference if the order is a speaking or a non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court. 11. K.K. Nair, according to the learned author, has a wide spectrum and would continue to be useful, despite Kunhayammud. 12. We may, to put the issue in perspective, examine K.K. Nair a little deeper: In that case, the High Court of AP set aside an order terminating an employee from service. A Letters Patent appeal; filed before the Division Bench of the High Court, was dismissed. Later, an SLP met the same fate. After the dismissal of the appeal by the Division Bench and before the SLP was filed, the petitioner insisted on his reinstatement. Not reinstated, he filed a contempt petition. 13. In the above factual context, the Division Bench held that the Appellate Bench of the High Court and the Supreme Court merely confirmed the orders of the single judge. Given the Rules framed by the A P High Court, and given the flexibility of the doctrine of merger, the issue of forum must be tailored keeping in view the facts and circumstances. In the end, K.K.Nair has held that proceedings for contempt could be initiated before the single Judge. 14. From K.K. Nair emerges an important jurisdictional issue: the choice of forum can be unhooked from the principle of merger. 15. In the end, K.K.Nair has held that proceedings for contempt could be initiated before the single Judge. 14. From K.K. Nair emerges an important jurisdictional issue: the choice of forum can be unhooked from the principle of merger. 15. In Shivada Pillay v. S.V.S. Prasad, 1992 CRI LJ 590 : 1991 ICO 1227, another learned Single Judge of A.P. High Court has observed that a case of contempt is a fragile matter which should be handled with care. To maintain contempt proceedings, one should establish wilful disobedience of an order passed by the court, a sine qua non. If there is an element of doubt whether the Division Bench has upheld a single judge's direction in to, then it would be difficult to say that the single judge's order still survives leading to its violation, Shivada Pillai further observes. 16. It is thus clear that once an appeal is entertained under Clause 15 of the Letters Patent Act, the order impugned before the Division Bench, holds High Court of AP in A. Santhi Kumari v. K.Ravi, 2003 CRI LJ 1596 : 2002 ICO 6418, becomes an order appealed against. Any order passed thereafter would be an appellate order and would undoubtedly attract the doctrine of merger. The fact whether the order passed by the appellate Court is one of reversal, or of modification, or of dismissal affirming the order appealed against would make no difference. Once the appellate Court applies its mind to the impugned order, exercises its Letters Patent jurisdiction after issuing notice, and disposes of the appeal on merits, such order would be an appellate order attracting the doctrine of merger. Indeed, Santhi Kumari misses with great respect I may observe the finer distinction between mere affirmation and modification, ever so slight, of the primary order. The Division Bench rejected the nuanced approach adopted by K.K.Nair and impliedly followed by Shivada Pillay, both benches of lesser strength, though. 17. In Arun Kumar Gupta v. Jyoty Prasanna Das Thakur, (1996) ILR 1 Cal 292 : 1996 ICO 7051 the contemnor contended that the appellate bench stayed the primary order conditionally, though. So merger took place. The merger renders whatever violation alleged to have been committed by the contemnor, the contention goes, cognisable only by the Court of Appeal. 17. In Arun Kumar Gupta v. Jyoty Prasanna Das Thakur, (1996) ILR 1 Cal 292 : 1996 ICO 7051 the contemnor contended that the appellate bench stayed the primary order conditionally, though. So merger took place. The merger renders whatever violation alleged to have been committed by the contemnor, the contention goes, cognisable only by the Court of Appeal. A Full Bench of the Calcutta High Court has, however, held that it will be too broad a proposition to hold that, even when the condition imposed by the appellate court remained unfulfilled, it would not be open to the petitioner to move the Trial Judge to enforce his order. No doubt once the Trial Curt, upon adjudication, finds that the appellate court's condition stood fulfilled, observes the Full Bench, it would have no further jurisdiction to enter into the merits of the other contentions because compliance would suspend the life of the Trial Court's order. The Full Bench seems to have disallowed the plea of merger by observing thus: "So far as the question of merger of the Trial Court's order in the order of the Court of Appeal is concerned, in view of the settled principles of law, the said premise, advanced on behalf of the contemnors/Appellants, does not appear to have much substance in the facts of the present case." 18. In State of J&K v. Sudhir, 1988 Supp SCC 556 : 1988 ICO 564, a single judge passed an interim order; complaining of its violation, the petitioner filed a contempt case. Meanwhile, the respondent filed an intra-court appeal. The Division Bench, in turn, passed an interim order in the appeal. When the appeal was pending, the single judge passed orders in the contempt case. In that factual context, the Supreme Court has observed that the parties are, indisputably, bound to abide by the interim order passed by the Division Bench in the appeal. So far as the contempt proceedings are concerned, ends of justice would be served, noted the Apex Court, if the contempt proceedings are stayed till the final disposal of the appeal pending before the Division Bench. The order is cryptic. But the implication, I reckon, is that once the Division Bench disposes of the appeal, the contempt proceedings are revived. So far as the contempt proceedings are concerned, ends of justice would be served, noted the Apex Court, if the contempt proceedings are stayed till the final disposal of the appeal pending before the Division Bench. The order is cryptic. But the implication, I reckon, is that once the Division Bench disposes of the appeal, the contempt proceedings are revived. The Apex Court, at least, has not laid down that the moment an appellate bench or court is seized of the matter, the contempt proceedings before, as in this case, the single judge evaporate. The ratio of K.K. Nair and Shivada Pillay, perhaps, comes into play. 19. Clearer indications on the course to be adopted on merger in contempt proceedings emerge from Court Liquidator Employees' Assn. v. P.G. Mankad, (2002) 10 SCC 477 : 2000 ICO 1194. A High Court allowed a writ petition directing the authorities to comply with its directive. The Government filed an SLP. The Supreme Court stayed the operation of the judgment of the High Court for six months to enable the appellants to frame the scheme as suggested and to give effect to it. Failing compliance, the judgment under appeal, observed the Apex Court, will stand confirmed. 20. But the Government did not frame the scheme within the stipulated period; nor did it absorb the employees as per the proposed scheme. The respondent in appeal moved a contempt petition. Given the initial observation that on the Government's failure the High Court order stands revived, the proper remedy for the applicants, the Supreme Court held, is to approach the High Court, rather than initiating contempt before it. 21. The High Court of Calcutta viewed the orders emanating from public-law remedies in a different perspective: In Madhav Banerjee v. Dr. Dipak Chandra, 1997 (II) CWN 435 as quoted in The Law of Contempt (supra), a learned single Judge has held that the jurisdiction exercised by the High Court under Articles 226 or 227 of the Constitution of India cannot be said to be an appellate or revisional jurisdiction in the sense in which conventional appellate or revisional proceedings are treated. It brooks no contradiction that in statutory adjudication, the appeals, or even revisions, are continuation of the original proceedings. But in constitutional dispensation, judicial review is independent. It brooks no contradiction that in statutory adjudication, the appeals, or even revisions, are continuation of the original proceedings. But in constitutional dispensation, judicial review is independent. So an order, for example, passed by an Industrial Tribunal does not, strictly speaking, merge with that of the High Court. 22. Madhav Banerjee accords with A. Satyam v. Municipal Engineer, 1990 CRI LJ 765 : 1989 ICO 2337, in which High Court AP has held that once the High Court affirms an Industrial Tribunal's award, the award's enforcement or remedies on its breach must be before the Tribunal, rather than the High Court. In other words, the award's affirmation does not lead to merger. 23. In Abin Suraj M v. Dr. M.V. Joseph, 2011 (3) KLT 488 : 2011 ICO 1278, a learned single Judge has examined the issue in depth. Considering the precedential position on the issue, including Kunhayammed (supra), his Lordship has held that a writ appeal not getting admitted or a notice not getting issued in the appeal is not determinative whether the doctrine of merger applies. In Abin Suraj, the appellate Bench entertained the appeal, heard the appeal at length and rendered its judgment on the merits of the controversy. Dismissal of an appeal, therefore, is the least of the concerns for the merger principle to apply. In the end, Abin Suraj M holds that given Section 5 of the Kerala High Courts Act, the conclusion arrived at by the Apex in Kunhayammed cannot be applied to a writ appeal. Here, even before the writ appeal was filed, the petitioner initiated contempt proceedings. THE EXCEPTIONS: 24. The common-law cannon of merger, at least, in contempt proceedings, is neither immutable nor inviolable; not even inexorable. If the rigour of merger is not relaxed, a party provided with a positive order may have to run the litigious labyrinth just because the contemnor, after wilfully violating the judicial directive, takes recourse to a stratagem; that is, filing an appeal even if he is unsuccessful in his essay. Unless the appellate forum modifies the impugned order, if the beneficiary is forced to start anew after the disposal of appeal first by abandoning the initial contempt proceedings before the primary forum, at that it will amount to putting a premium on the contemnor's devious devises and dishonesty. P.G. Mankad, I reckon, supports this view. 25. Unless the appellate forum modifies the impugned order, if the beneficiary is forced to start anew after the disposal of appeal first by abandoning the initial contempt proceedings before the primary forum, at that it will amount to putting a premium on the contemnor's devious devises and dishonesty. P.G. Mankad, I reckon, supports this view. 25. Summarizing the precedential position despite the decisional cleavage I may hold thus: (a) The principle of merger does apply to contempt proceedings, too; but its attenuation is permissible, nay desirable, if it meets the ends of justice; (b) before the Constitutional Courts, if an order gets simply affirmed (or the appeal summarily dismissed) in the adjudicatory echelons, the order to be complied with is the primary one; on its violation, the beneficiary can maintain contempt proceedings before the Bench of first instance; (c) prudent is the approach to put on hold the contempt proceedings until the appeal concludes, but the affirmation in appeal does not necessitate initiation of fresh contempt proceedings, more particularly, before the appellate bench; (d) despite affirming the order, if the appellate bench materially modifies or varies the impugned order, the merger takes place; therefore, it needs fresh contempt proceedings before the appellate bench; but (e) if the appellate court only relaxes the rigour of the order, say, by enlarging the time for compliance which is no effacement of the order there is no merger; therefore, the violation, if any, must be in relation to the original order. 26. On facts, I may observe that here the learned Division Bench, through its judgment dated 11.11.2016, in WA No.2189 of 2016, only enlarged the time required for compliance. It has neither varied nor modified the primary order. Merger has no place. Inescapably, the violation is in relation to the judgment in the writ petition. I, therefore, clarify that the respondents, if desirous, may place their defence on record, before the Court proceeds further.