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2022 DIGILAW 768 (ALL)

Raj Bali Singh v. Nitin Ramesh Gokaran

2022-05-16

ASHUTOSH SRIVASTAVA, PRITINKER DIWAKER

body2022
JUDGMENT : 1. This Intra-Court Appeal under Chapter VIII Rule 5 of the Rules of the Court has been filed against the order dated 16.12.2020 passed by the learned Single Judge in Contempt Application (Civil) No. 2027 of 2020 (Raj Bali Singh Versus Shri Nitin Ramesh Gokarn, Additional Chief Secretary / Principal Secretary and Shri Devendra Nigam, Executive Engineer) as also the order dated 10.3.2022 passed in CAPL (Civil) No. 6315 of 2021 (Raj Bali Singh Versus Shri Nitin Ramesh Gokaran and another). By the order dated 16.12.2020, the learned Single Judge has ordered the Contempt Application to be consigned to record being of the view that there is no good ground to proceed further with the contempt application. By the order dated 10.3.2022, the second contempt application being CAPL (Civil) No. 6315 of 2021 has been dismissed as not maintainable and consigned to record. 2. The facts shorn of unnecessary details giving rise to the present proceedings are that the appellant / writ petitioner approached the writ Court inter-alia claiming the following reliefs: "(a) issue a writ, order or direction in the nature of mandamus commanding the respondent no. 1 and 6 to reckon the petitioner's work charge establishment services into regular services for the purposes of gratuity, pension and consequential benefits. (b) issue a writ, order or direction in the nature of mandamus commanding the respondent no. 6 to grant the pension and consequential benefits to the petitioner." 3. It was contended by the counsel for the appellant / writ petitioner that the controversy involved was squarely covered by the decision of the Apex Court in Prem Singh Versus State of U.P. and others, Civil Appeal No. 6798 of 2019, dated 2.9.2019 and the writ petition be decided in terms of the aforesaid decision. 4. The writ Court by order dated 29.11.2019 disposed of the writ petition requiring the competent authority to look into the grievance of the petitioner and pass appropriate order strictly, in consonance with the judgment passed by Hon'ble Apex Court in the case of Prem Singh, expeditiously within a period of two months from the date of production of certified copy of the order. When the direction of the writ Court dated 29.11.2019 was not complied with, a contempt application, being CAPL (Civil) No. 2027 of 2020 was filed by the appellant / writ petitioner alleging violation of the direction of the writ Court. When the direction of the writ Court dated 29.11.2019 was not complied with, a contempt application, being CAPL (Civil) No. 2027 of 2020 was filed by the appellant / writ petitioner alleging violation of the direction of the writ Court. 5. Initially, the Contempt Court being prima facie satisfied that the direction of the writ Court had not been complied with issued notice to the contemnors i.e. Shri Nitin Ramesh Gokaran, Addl. Chief Secretary, Government of U.P. and Shri Devendra Nigam, Executive Engineer requiring their presence to answer the contempt proceedings. The contemnors filed an affidavit of compliance annexing a copy of the order dated 27.11.2020 passed by the Executive Engineer, whereby the claim of the appellant / writ petitioner was rejected. The learned Single Judge exercising contempt jurisdiction considered the compliance affidavit as also the order dated 27.11.2020 rejecting the claim of the writ petitioner. The learned Single Judge noted that the order dated 27.11.2020 duly considered the decision of the Apex Court in the case of Prem Singh (supra) as also the directions of the Apex Court in the case of State of U.P. through Principal Secretary and others Versus Ram Murat and others; Civil Appeal No. 872 of 2020, decided on 21.10.2020. The learned Single Judge also took note of the Ordinance No. 19 of 2020 (U. P. Qualifying Service for Pension and Validation Ordinance, 2020) which has been made effective with retrospective effect and in relation to Sub Rule 8 of the Rule 3 of the U.P. Retirement Benefit Rules, 1961, the ordinance would be effective from April 1, 1961. It also noted the fact that in the case of Prem Singh (supra) the judgment was given by the Apex Court by reading down Rule 23 Sub Rule 8 of the U.P. Retirement Benefit Rules, 1961. The learned Single Judge, thus was of the view that no good ground existed to proceed further with the contempt proceeding and accordingly directed the contempt application to be consigned to record vide order dated 16.12.2020. 6. The appellant / writ petitioner filed yet another contempt application, being Contempt Application No. 6315 of 2021 alleging non compliance of the order dated 29.11.2019 passed by the writ Court in Writ Petition (A) No. 19190 of 2019. The said contempt application has been dismissed as not maintainable taking note of the dismissal of the earlier Contempt Application No. 2027 of 2020. 7. The said contempt application has been dismissed as not maintainable taking note of the dismissal of the earlier Contempt Application No. 2027 of 2020. 7. The question for consideration in this Intra-Court Appeal is as to whether an appeal under Chapter VIII Rule 5 of the Rules of the Court will lay against an order of a Single Judge passed in exercise of contempt jurisdiction refusing to proceed further with the contempt proceeding and consigning the same to records. 8. To scope and ambit of maintainability of an appeal under Section 19 of the Contempt of Courts Act, 1971 and also an Intra-Court Appeal under the relevant rules of the High Court in a case of an order passed in contempt proceedings was considered in the case of Midnapore Peoples Co-operative Bank Ltd., and others Versus Chunilal Nanda and others, 2006 (5) SCC 399 and it was held that any direction issued or decision made by the High Court in contempt proceedings on the merits of a dispute between the parties unless the same is incidental to or inextricably connected with the order punishing for contempt would not be in the exercise of "jurisdiction to punish for contempt" and, therefore, would not be applicable under Section 19 of the Contempt of Courts Act, 1971. However, such an order was held amenable to a challenge in an Intra-Court Appeal under the relevant rules of the High Court. The position with regard to filing of appeals against orders passed in contempt proceedings was summarized in Para 11 of the decision which is being reproduced as under : "11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarized thus : I. An appeal under section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt. II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution. III. II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution. III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties. IV. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of 'jurisdiction to punish for contempt' and therefore, not appealable under section 19 of CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under section 19 of the Act, can also encompass the incidental or inextricably connected directions. V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases). The first point is answered accordingly." 9. From the above, it is more than clear that an appeal under Section 19 of the Contempt of Court's Act, 1971 would be only from an order or a decision imposing a punishment for contempt. Unless there is an order or decision on punishment, the appeal under Section 19 (1) of the Contempt of Court's Act, 1971 would not be competent. So long as no punishment is imposed by the learned Single Judge, it could not be said to be exercising its jurisdiction or power to punish for contempt. Unless there is an order or decision on punishment, the appeal under Section 19 (1) of the Contempt of Court's Act, 1971 would not be competent. So long as no punishment is imposed by the learned Single Judge, it could not be said to be exercising its jurisdiction or power to punish for contempt. Since in the case at hand, the orders dated 16.12.2020 and 10.3.2022 passed by the learned Single Judge in exercise of contempt jurisdiction merely dismiss the contempt petition, such orders are not amenable to appeal under Section 19 of the Contempt of Court's Act, 1971. But whether such orders are amenable to an appeal contemplated under Chapter VIII Rule 5 of the Rules of the Court is to be considered in the light of the provisions of Chapter VIII Rule 5 of the Rules of the Court which is quoted here-in-below:- "5. Special appeal :- An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction 66[or in the exercise of the jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award--(a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge." 10. Chapter VIII Rule 5 of the Courts provides for an appeal to the Court from a "judgment". The meaning of "judgment" for the purposes of Chapter VIII Rule 5 of the Rules of the Court came to be examined by a Full Bench of this Court in the case of Ashutosh Shrotriya and others Versus Vice Chancellor Dr. B.R. Ambedkar University and others reported in AIR 2015 All 187 (DB). The meaning of "judgment" for the purposes of Chapter VIII Rule 5 of the Rules of the Court came to be examined by a Full Bench of this Court in the case of Ashutosh Shrotriya and others Versus Vice Chancellor Dr. B.R. Ambedkar University and others reported in AIR 2015 All 187 (DB). The Full Bench after considering various judgments of the Apex Court proceeded to formulate the governing principles in Para 30 of the judgment which is reproduced as under : "We now formulate the governing principles : (i) The expression 'judgment' was advisedly not defined in the Letters Patents of various High Courts which conferred a right of appeal against a judgment of a Single Judge to a Division Bench of that Court; (ii) The expression 'judgment' is not to be construed in the narrower sense in which the expression 'judgment', 'decree' or 'order' is defined in the CPC, but must receive a broad and liberal construction; (iii) Every order passed by a trial Judge on the Original side of a High Court exercising original jurisdiction or, for that matter, by a learned Single Judge exercising the writ jurisdiction, would not amount to a judgment. If every order were construed to be a judgment, that would result in opening a flood of appeals and there would be no end to the number of orders which could be appealable under the Letters Patent; (iv) Any interlocutory order to constitute a judgment, must possess the characteristic of finality in the sense that it must adversely affect a valuable right of a party or decide an important aspect of the trial in an ancillary proceeding. In order to constitute a 'judgment', the adverse effect on a party must be direct and immediate and not indirect or remote; (v) In order to constitute a judgment, an interlocutory order must: (a) decide a matter of moment; or (b) affect vital and valuable rights of the parties and must also work serious injustice to the party concerned: (vi) On the other hand, orders passed in the course of the proceedings of a routine nature, would not constitute a judgment even if they result in some element of inconvenience or hardship to one party or the other. Routine orders which are passed by a Single Judge to facilitate the progress of a case may cause some element of inconvenience or prejudice to a party but do not constitute a 'judgment' because they do not finally determine the rights or obligations of the parties. Procedural orders in aid of the progression of a case or to facilitate a decision are not judgments." 11. Now considering the impugned orders dated 16.12.2020 and 10.3.2022 against which the present appeal has been preferred, we are of the opinion that the orders cannot in any manner be said to touch the merits of the controversy or the dispute between the parties so as to be deemed to be judgment or deemed to have been issued in exercise of powers conferred under Article 226 of the Constitution of India and thus, making them amenable to an Intra-Court Appeal under Chapter VIII Rule 5 of the Rules of the Court. 12. In view of the above discussion, the Intra-Court Appeal under Chapter VIII Rule 5 of the Rules of the Court is held to be not maintainable and is, accordingly, dismissed.