Arun Kumar Gupta vs Jyoti Prasanna Das Thakur

S.K. Mookherjee, J.—These twelve appeals have been referred to the full Bench in terms of Rule 1, Chapter VII of Part II of the Appellate Side Rules, as the referring Bench found itself unable to agree with the views of the earlier Division Bench of this Court. The point on which the difference arose related to the necessity of personal service of a mandatory order as distinct from prohibitory order. In the order of reference, the Division Bench, however, took note of an admitted factual position that the order, in the present case, was not personally served upon the contemnors though they knew and were fully aware of the said order and took all possible legal and administrative steps to have the said order set aside and/or to make it infructuous. Since all the appeals have been referred to us, all points, including the above noted admitted factual position, nave been treated as open for arguments by us.

The origin of the entire dispute may be traced to . notification issued by the State Government, dated February 23, 1983, whereby the employees of different Universities of West Bengal were proposed to b granted further additional dearness allowance like their counter-parts in Government employment at the rate i absolute amounts as was admissible to the Government employees on corresponding basic pay in terms o memorandum No. 11930-F date 23.11.82 in additions it existing dearness allowance/interim dearness allowance. We have purposely underlined the above portions as the dispute between the parties can be said to have its foundation in the interpretation of the word: underlined above. From this Memorandum two other clauses are required to be quoted as follows:

If the existing total D.A. elements (prior to 1.11.82 be in excess of the total D.A. element (prior to 1.11.82) of corresponding State Govt, employees such excess should be adjusted against the amount of further A.D.A. admissible.

The basic pay as mentioned above shall be the grade pay, drawn by the employees in their respective revised scales of pay and shall not include Special Pay, Dearness Pay, Personal Pay, Administrative Pay and any other categories of Pay, if any, an except grade pay, provided that in the case of employees who have not opted for revised scales of. pay, the basic pay will be grade pay plus Dearness Allowance as was being drawn by them on 31.3.70. The said Memorandum was followed by another, dated April 4, 1983, which enclosed a ready reckoner indicating the amounts of further Additional Dearness Allowance payable to the University employees, in terms of the earlier Memorandum. As the amounts, as shown in the ready reckoner, issued by the Government, were found by the University employees to be less than the amounts to which they thought themselves to but entitled, a number of writ applications were moved on which civil orders were issued and such civil order ultimately, had been heard out and disposed of, on September 3, 1984 by Mrs. P. Khastagir, J., inter alia, quashing the ready reckoner on the grounds that there has no proper authentication of the said document, which had been issued under the signature of the Dy. secretary, Education Department and not in the names f the Governor; that the ready reckoner could not modify or take away the amounts payable to the University employees under the original memorandum y mis-interpreting the terms ''basic pay now drawn"; IInd thirdly because the term ''absolute amounts'' used n the said Memorandum, dated February 23, 1993, leant complete unconditional amount. Against the said Term, appeals were preferred before the Division Bench IInd in connection therewith applications for stay had also been preferred. The Appeal Court, by its order lasted September 11, 1984, after finding that the propriety of quashing of the ready reckoner was to be decided at the final hearing of the appeal, directed the Appellants to pay further dearness allowance to non-teaching University employees, in accordance with. the Memorandum, dated February 23, 1983. It appears from record that after the disposal of the connected stay applications, in the manner as mentioned above, the present Appellants, by'' a further Memorandum dated September 12, 1984, withdrew the" abovementioned Memorandum, dated February 23, 1983, with immediate effect, and, by a simultaneous Memorandum of the ;amending, declared the entitlement of the University employees to further A.D.A. in correspondence to the able given therein with effect from November i, 1982, e., the date since when, the terms of the withdrawn Memorandum, further A.D.A. had been sanctioned and included therein a table, showing the amounts payable ^cording to the grade pay or basic pay. It is pertinent note that the amounts of further A.D.A., as mentioned A the said Memorandum, were identical amounts as mentioned in the Memorandum relating to the Government employee, indicating also the conditions, which were verbatim re-production, more or less, of what went embodied in the withdrawn Memorandum. This newly; issued Memoranda constitute the subject matters o challenge in the instant writ proceedings on which Rule: were issued on September 26, 1984 by a learned Singh Judge of this Court.

While issuing the Rules the learned Judge issue'' an interim order, directing the Respondents, inter alia to make payment to the non-teaching staff of the concerned Universities further A.D.A., in accordant with the instructions contained in the Government Memo, dated February 23, 1983, upto and including the month of September, 1984, without taking into consideration the subsequent notifications, dated September 12, 1984 and September 15, 1984, within one week for the date of communication of the said order. The learned Judge further directed that in the event of the applications becoming un-successful, the payment made would be deducted from the salaries to be paid to the writ Petitioners. On behalf of the present appelants, appeals were preferred and oral prayers were made before the Appeal Court for stay of operation of the order of the learned Single Judge. The Appeal Court, by its order, dated September 26, 1994, upper consideration of the assurances given by the Learned Counsel for the writ Petitioners, gave liberty to the present Appellants to move the Vacation Bench. The Vacation Bench was moved on September 28, 1984 when the Vacation Bench, inter alia, directed that the applications would be listed before the regular Bench one week after re-opening of the Court after loner vacation and granted an unconditional interim bide staying the operation of the order of the learned Singk Judge till October 15, 1984, also directing that sue-stay would stand extended till the disposal of the application on payment of 50% of the further A.D.A. in terms of the Memoranda dated February 23, 1983.

It appears from record that by a Memorandum, issued under the signature of the then Education'' Secretary, dated October 11,1984, the Registrars of the concerned Universities were informed that the Government was advised to the effect that University employees were not entitled to any further amount, in terms of the Government Memorandum dated February 23, 1983, for the period as mentioned in the order of the learned Single Judge and that in view of such position there was no question of default in carrying out the said order. The advice, as mentioned above, appears to have been given by the then learned Government Pleader (vide the minute of discussions held in the presence of the then Chief Minister and Finance Minister as also the Education Secretary, from the relevant file, Xerox copy of which has been produced before the Court along With the relevant file).

On or about December 7, 1984, on the basis of applications, made on behalf of the Respondents, Rules for contempt had been issued, in the context of allegations, inter alia, that due to default of the Appellants, the interim order issued by the Appellate Court, on September 28, 1984, stood vacated on the expiry of October 15, 1984, reviving the interim order of injunction passed by the learned Single Judge on September 26, 1984 and refusal by the Appellants to pay the non-teaching staff of the University, in terms of the $aid order of the learned Single Judge, clearly amounted to deliberate violation of the said order and thus constituted a gross contempt of Court. It was further contended, in the said contempt applications, that the subsequent plea of having made payment in full, which was patently inconsistent with the previous stand taken, namely, that in case payments were to be made in terms of the Memorandum dated February 23, 1983, the Government would have to bear greater financial burden, merely established that the Appellants had full knowledge and had correctly interpreted the Memorandum in question but tried to bye-pass the same on a plea of a different interpretation, which was aimed at reducing the financial liability.

Affidavits were exchanged on behalf of the present Appellants in the said Contempt Rules and the defence in substance was that the learned Single Judge not having given interpretation of the Memorandum, dated February 23, 1983, the Appellants could not be said to be unjustified in interpreting the same according to their bona fide understanding and the assertion of full payments in terms of directions of the Court was, therefore, justified; secondly that in view of such payment the stay granted by the Court of Appeal could not be said to have been vacated and as such the operation of the order of the learned Single Judge remained suspended and thus question of contumacious violation of the said order did not arise ; thirdly the point minor/appellants acted bona fide, on the basis of legal advice, and as such there was no willful violation, as alleged, even if the order of the learned. Single Judge was found to have revived; lastly, it was contended that since the order was in the nature of a mandatory order, according to established procedure, without personal service on the contemnors, no contempt proceeding could be maintained. In the appeal preferred on behalf of Registrar, Bidhan Chandra Kishi Vidyalaya, further contention was that since, in spite of request, funds were not made available by the Government, payments could not be made.

That the aforesaid Contempt Rules had been disposed of by the learned Single Judge by an order, dated September 29, 1986, inter alia, holding the appelants/contemnors guilty of contempt and directing, in stead of fine or imprisonment, compliance with the order passed by him on September 26, 1984, forthwith, as the mode of purging from contempt.

The learned trial Judge, in passing the order impugned in the present appeals, recorded certain findings, which were referred to by the contesting parties in support of their submissions before us to make their respective cases of establishing and defending allegations of contempt. It will be worthwhile to take note of such findings, as made.

In the first place, the learned Trial Judge found that order of stay granted by the Court of appeal, on September 28, 1984, not having been complied with by the Appellants/contemnors, his order and directions revived and came into effect afresh. According to the learned Trial Judge, the Respondents did not pay 50% Additional Dearness Allowance as directed. Secondly, according to the learned Single Judge, the stand, taken by the contemnors/Appellants that the Petitioners/Respondents or other employees were not entitled to get further allowances for the period between November 1, 1982 to September 30, 1984 was contrary to the stand taken earlier in different proceedings as also at different stages of the proceedings including one, which culminated with the order of P. Khastagir, J. namely that payment in terms of the Memorandum as directed Would result in imposition of further financial liability on the Government being more than what was paid to the State Government employees; if this was the factual position there would not have been any necessity of preferring any appeal. Thirdly, the order of P. Khastagir, J. according to the learned Single Judge, was certain in laying down that basic pay in the Memorandum in question meant the basic pay drawn by the University employees even after merger of Dearness Allowance in 1978 ; the ready reckoner, therefore, could not reduce the amount of such Dearness Allowance; fourthly, the learned Single Judge found the Government was fully conscious that University employees were to be paid further Additional Dearness Allowance than what was already paid to them and withdrawal of the Memorandum, dated February 23, 1983, during the pendency of the appeal and the interim order and non-payment by the Government amounted to deliberate violation of the order of P. Khastagir, j. Fifthly, the learned Single Judge, on the question of non-service of the order, allegedly violated, on the contemnors personally recorded such contention to have no merit at all.

In view of the cheque career of the proceedings and the importance of the points involved, the Learned Counsel representing the contesting parties had exerted themselves to the fullest possible extent and spared no pain in extending their assistance to Court, arguments and submissions, therefore, were necessarily very detailed and in-depth, the correctness of which is well established by the span of time for which the same continued. In our analysis such elaborate submissions hinged on the following questions:

i) Whether Appeal lies u/s 19 of the Contempt of Courts Act ?

ii) Whether the order, violation of which is alleged, has to be personally served ? Whether for the purpose of such personal service there can be any difference between a prohibitive order and a mandatory one ? In the absence of any particular mode of official communication, when can an order be said to have been personally served.

iii) Whether the defence of bona fide, sole or alternative construction is available in the present case.

iv) Whether the order of the learned Trial Judge had merged into the order of the Appeal Court and whether due to such merger the learned Trial Judge had any jurisdiction to entertain the application for contempt ?

(v) Whether there has been willful violation of the order of the learned Single Judge in the instant case? Whether the defence, as pleaded, of absence of liability for further payment, has been established by the Respondents?

With regard to the question of maintainability of the present appeal u/s 19 of the Contempt of Courts Act, an apparent controversy exists because of the, scope for attributing deferent meanings to the phrase "in the exercise of its jurisdiction to punish for contempt Baradakanta Mishra Vs. Justice Gatikrushna Misra, Chief Justice of the Orissa High Court, . In the case of Baroda Kanta Misra v. Gati Krushna, Chief Justice, Orissa High Courts, a three Judges'' Bench of the Supreme Court laid down that jurisdiction in Contempt can be said to have been exercised only when the Court decides to take action and initiates a proceeding for contempt to punish for contempt; if, however, the Court rejects a motion or a reference and declines to initiate, a proceeding for contempt it refuses to assume or exercise'' jurisdiction to punish for contempt and such a decision cannot be regarded as a decision "in the exercise of its jurisdiction to punish for contempt" and thus no appeal would lie u/s 19(1) of the Contempt of Courts Act, 1971 (hereinafter referred to as the Act) as of right. A subsequent decision of the Apex Court, in the case of D.N. Taneja v. Bhajanlal (1983) 3 S.C.C. 26, however, laid down a different criterion, upon a different interpretation of the same Clause in Section 19(1) of the Act, by unequivocally recording that when the High Court did not impose any punishment on the alleged contemnor, it did not exercise its jurisdiction or power to punish for contempt under Article 215 of the Constitution of India. It went on to lay down further that when the High Court acquitted the Contemnor, it did not exercise its jurisdiction for contempt and as such the appeal u/s 19(1) of the Contempt of. Courts Act, in such a situation, was not maintainable. In the case of Purshotam Dass Goel Vs. Hon''ble Mr. B.S. Dhillon and Others, a two Judges'' Bench of the Apex Court decided that in order to render an appeal u/s 19(1) of the Contempt of Courts Act maintainable the order challenged in appeal must decide some dispute raised before it, by accepting the defence of the contemnor and dropping the proceeding and mere issuance of a Rule, as in the facts of that case, could not be said to be an order passed in exercise of the jurisdiction within the Clause quoted above. It is pertinent to note that in Tenaja''s case, (Supra) the Supreme Court had been dealing with the case of a criminal contempt, where, even according to the view expressed in Baroda Kanta''s case (Supra), there were two parties, namely, the alleged contemnor and the Court itself, and, as such, except in the case of imposition of punishment or upon a finding that the contemnor was guilty of the alleged contempt, there could be no occasion or necessity for ah appeal. Indeed the Supreme Court felt it unnecessary to consider whether an appeal lay when the High Court after initiating a proceeding for contempt found the alleged contemnor not guilty and exonerated him or even after he was found guilty, declined to punish him. The instant case^ however, was not a case of a criminal contempt but a case where the Court was exercising its jurisdiction with regard to a civil contempt where the contemnors/appelants were found guilty of contempt upon adjudication. The ratio propounded by the Supreme Court in D.N. Taneja (Supra), therefore, is not attracted in the present ease. The criterion laid down by the Supreme Court in the case of Barada Kanta (Supra) in finding out the maintainability of the appeal becomes applicable as there was initiation of a proceeding by issuance of a Rule and the contemnor was found guilty of the alleged contumacious act and'' the Court found that they were required to purge themselves by carrying out the order allegedly violated. The direction for so carrying out comes within the purview of the term ''order'' which stands in contra-distinction to the word ''punishment'' as used in Sub-section (2)(a) of Section 19 of the Contempt of Courts Act. It is well settled canon of construction that Court must presume that the Legislature does not waste word and as such every word in the statute should be endeavored to be presumed to have necessity of user of the statute and must be given effect consistent with its meaning. In the above view of the matter, in the present case, the order is such as can be said to be amenable to an appeal u/s 19(1) of the Contempt of Courts Act.

The point regarding necessity of personal service of the order, allegedly violated, on the alleged contemnor fell for consideration before a Division Bench of this Court in the case of Dwijendra Krishna Dutta Vs. Surendra Nath Nag Choudhury and Others, which reiterated the English law by insisting upon personal service save in certain excepted or special cases such as where the alleged delinquent can be shown to have evaded service. According to that decision even the presence of a person actually in Court, at the time of pronouncement of the order in question, was not considered as a ground for dispensing with such personal service. The Court proceeded upon view that, as regards the attachment and committal as alternative modes of enforcement, there was no distinction between a mandatory order and prohibitory order. A subsequent Division Bench of this Court, in the case of Naba Kumar Saha Vs. S. Banerjee and Another, had occasion also to consider the same point regarding necessity of personal service. The Court in that case noticed that authenticated or even plain copies of the relevant orders were not personally served on the alleged contemnors. The Court found, in the same manner as in the earlier decision, that willful violation of the order was the sina qua non for holding that such violation to be punishable and without service of the order that willfulness could not be said to have been established and consequential personal service of the order was found to be generally necessary except in case of prohibitive orders, the drawing up of which was not completed, orders embodying an undertaking to do an act by a named day, orders to answer interrogatory or discovery or inspection of documents, or order for substituted service or where the Respondent has evaded service. All the above are really reiteration of the English Principles for Contempt as enumerated in Oswald on Contempt, 3rd-Edition, page 199. The later decision did not, however, notice the earlier decision (4) on a careful reading, it appears that, subject to the exceptions as enumerated above, the requirement for personal service was treated to be the same, both in the case of prohibitive and mandatory orders. It is also noticeable that the later decision refrain from expressing its view in cases where an authenticated or plain copy of the order in question can be shown to have been served on the alleged contemnor. In other words, the requirement of a formal official communication through the department of the Court may be said to be dispensable when an authenticated or plain copy of the order could be shown to have been served. The referring Division Bench, however, could not agree with the earlier Division Bench decision in AIR Cal 1953, (Supra), so far as separate procedures for service of mandatory and prohibitory orders were concerned. In the order, of reference they expressed their view that even in case of a mandatory order establishment of knowledge of the Respondent due to his personal presence in Court about details of the order can be taken to be a good ground notwithstanding absence of personal service of the order on him. One of the reasons given by the referring Bench for distinguishing the procedure under the English law was that such procedure was based upon the Rules of the Supreme Court in England which insisted upon such service but there was no such statutory rule so far as our Court is concerned. As according to the Division Bench insistence upon personal service or absolving the condemner for absence of such personal service, in spite of their knowledge about the contents of the order having been established, would make justice the first casualty.

11.In the case of Hoshiar Singh v. Gurbachan Singh (Supra) the Supreme Court, though dealing with a prohibitive order, approvingly quoted the legal position as contained in Oswald''s Contempt of Court, 3rd edition, pages 199 and 203. It is pertinent to note that a portion from Oswald''s book had also been quoted in the case of Hoshiar Singh Vs. Gurbachan Singh, but the quotation in the judgment of the Apex Court contained an extra paragraph, which did not find place in the Calcutta High Court Division Bench decision and, which, in our view, suggests that regarding the necessity of personal service of the order allegedly violated much of difference was not recognized to be existent but such necessity was found to be dispensable in case of prohibitive orders under specific circumstances. In spite of pointed attention of the Supreme Court being drawn to the distinction in the matter of necessity of personal service in cases of prohibitive orders or orders of an affirmative nature, as laid down by a Division Bench of the Patna High Court in the case of N. Baksi Vs. O.K. Ghosh, the Court refrained from expressing its view on the correctness of such pronouncement and instead accepted the law as succulently put by Oswald and quoted in its judgment. In Oswald, law was stated in the following manner:

The judgment or order should be served on the party personally, except in the following cases; (1) prohibitive orders, the drawing up of which is not completed ; (2) Orders embodying an undertaking to do an act by a named day; (3) orders to answer interrogatories or for discovery or inspection of documents ; (4) where an order for substituted service has been made; (5) where the Respondent has evaded service of the order....

In. order to justify . committal for breach of a prohibitive order it is not necessary that the order should have been served upon the party against whom it has been granted, if it be proved that he had notice of the order aliened, as by telegram, or newspaper report, or otherwise, and knew that it was intended to be enforced, or if he consented to the order, or if he was present in Court, when the order was pronounced, or when the motion was made, although he left before the order was pronounced.

In a subsequent decision in the case of Bunna Prasad and Others Vs. The State of U.P. and Another, a three Judges'' Bench, while referring to the case of Hoshiar Singh (Supra) reiterated, upon assumption that there was no difference in cases of prohibitive or mandatory orders, that where the party in contempt was proved to have notice of the order aliened as by telegram or newspaper report or otherwise, personal service was not required, unless from the materials, the person in contempt could bona fide be said to come to the conclusion that the" source of Information was not authentic. On an analysis, it appears, that in case of prohibitory orders the Supreme Court allowed initiation of contempt proceeding when the alleged contemnor could be expected to take steps for acquiring knowledge about order allegedly violated. The concept of constructive knowledge was found acceptable for sustaining allegation of contempt. The view of the Supreme Court crystallized in the case of the The Aligarh Municipal Board and Others Vs. Ekka Tonga Mazdoor Union and Others, with regard to prohibitory orders, breach of which was being considered in that case, when the Court observed "It may also be pointed that in order to justify the action for contempt of Court for breach of prohibitory order, it is not necessary that the order should have been officially served on the party against whom it is granted if it is proved that he had notice of the order aliened and he knew that it was intended to be enforced. Official communication is not a condition precedent, provided there is no valid reason to doubt about the authenticity of the order conveyed to him (the alleged contemnor)." in the said case, the Court further clarified that to establish knowledge of the contemnor beyond reasonable doubt, it was not necessary to prove formal service of the order by official routine and knowledge of the exact order aliunde would suffice. In case of doubt, however, benefit ought to go to'' the person charged. In coming to the above conclusion, Court took into consideration purpose of initiation of Contempt Proceeding. It Js pertinent to note that in none of the aforesaid cases before the Supreme Court, any occasion arose to specifically consider whether in case of mandatory order personal service was indispensable. It is, however, clear that under the Contempt of. Courts Act, 1971 to constitute civil contempt there must be willful disobedience, which cannot be said to exist if there is no knowledge on the part of the alleged condemner sufficient to enable him to obey, the order. Since the Supreme Court was approved the principle as stated in Oswald''s Law of Contempt and since the distinction between mandatory order and prohibitory order, so far as requirement for personal service is concerned, arose because of specific rules operative in English Courts, the same procedure may be followed in our Country regarding personal service in case of both mandatory and prohibitory orders. We have already indicated that the Supreme Court in case of prohibitory orders accepted the position that for upholding a charge for contempt, proof of knowledge of the order on the part of the alleged contemnor was a sina qua non. In case of mandatory order also, therefore, the same touch stone may be applied and if it is established that the contemnor had knowledge of the order, even aliunde, and there was no scope for doubting the authenticity or correctness of such knowledge, mere absence of personal service cannot be urged as a ground of defence on his behalf. For adjudicating an allegation of contempt the communication, even where necessary in case of both mandatory and prohibitory order, must not mean service of the copy of the order by the office of the Court in accordance with procedure embodied in Rules but any mode of acceptable service, which can be said to communicate ^he order in an effective manner, should be accepted as proper service of the order e.g. when it is found that either a Xerox copy or a plain copy of the order has been served or received by the alleged contemnor. This view may be said to draw justification from the observation of Supreme Court in the case of Aligarh Municipal Board (Supra), to the following effect:

It may also be pointed out that in order to justify action for contempt of Court for breach of a prohibitive order it is not necessary that the order should have been officially served on the party against whom it is granted if it is proved that he has notice of the order aliunde and he knew that it was intended to be enforced. Official communication is not a condition precedent, provided there is no valid reason to doubt the authenticity of the order conveyed to him. In the present case we are not at all satisfied that the Demand Inspector Shri Kanhaiyalal Sharma had any real justification for doubting the authenticity of the order conveyed to him and to the other officers of .the Board by Bhagwan Das. Indeed, we are also of the view that the certified copy of the order had actually been shown to him. We have, therefore, no doubt that the Demand Inspector is guilty of contempt of Court by knowingly and deliberately disobeying the order of the High Court. It was, however, contended that the sentence imposed on him is too severe. We are unable to agree. Contempt proceeding against a person, who has failed to comply with the Court''s order, services a dual purpose; (1) vindication of the public interest by punishment of contemptuous conduct and (2) coercion to compel the contemnor to do what the law requires of him. The sentence imposed should effectuate both these purposes. It must also be clearly understood in this connection that to employ a subterfuge to avoid compliance of a Court''s order about which there could be no reasonable doubt may in certain circumstances aggravate the contempt. The Demand Inspector, in the present case, as is clear from his counter-affidavit and other materials on the record, has attempted to employ such a subterfuge and finally he has all through stuck to his insistence on justification without any expression of regret, leave alone apology. We have, accordingly, no hesitation in upholding the order against him. We would like to point out, in this connection, that with scientific discoveries and inventions, the availability of the exact copies of orders of Court has been greatly facilitated and such improvement with reference to earlier periods has to be borne in mind in considering pragmatically the question of necessity of an official communication. Even the Supreme Court in the cases cited accepted communication through telegram or showing of a certified copy as constituting knowledge.

In the above Supreme Court case Roshiar v. Gurbachan Singh (Supra) regarding the decision of the Patna High Court, laying down that in case of affirmative order, as distinct from prohibitory order, dispensation of service was not permissible N. Baksi v. O.K. Ghosh (Supra), no view about the correctness of the said decision was expressed but the Rule as put by Oswald had been found acceptable. Even the decision of this High Court in the case of Dwijendra Krishna v. Surendranath (Supra) was distinguished on the ground of being not relevant because the Supreme Court was dealing with a prohibitory order though the Calcutta decision was approved by the Patna High Court in the above noted Patna Division Bench decision. The later Calcutta decision in the case of Naba Kumar v. S. Banerjee (Supra), did not notice the Division Bench decision (Supra), but appears to have approved of different procedures, in case of prohibitory and mandatory orders. In our view such approach is, not the one which can bf said to be in consonance with the concept of justice or can be said to serve the cause of justice as such view, as rightly pointed out by the referring Bench, in the context of situations, noted in the order of reference, would make justice the first casualty. It is well accepted principle in the realm of law that procedure is merely the hand maid of justice. Even the Division Bench (Supra) had refrained from expressing its view in cases where authenticated or plain copies of the relevant order had been personally served.

In the instant case, there is no controversy over the fact that the order, violation of which is the subject matter of the contempt proceedings, had never been served on any of the contemnors so as to satisfy the test of official communication but at the same time, as noted by the Division Bench, the factual position that the contemnors knew and were fully aware of the order and took all possible, legal and administrative steps, to have the order set aside and/or to make it infructuous is incontrovertible. For the view we have taken above, regarding the effect of absence of an official communication of the order and also the effect of communication in some form so as to amount to effective communication of the order, enabling the contemnors to take steps for it''s implementation, the Appellant in the present case cannot be allowed to plead the defence of absence of personal service successfully and such plea must fail. We would like to emphasize, at this stage, that the plain copy of the allegedly violated order of Mr. Justice Sengupta, dated September 26, 1984, had been directed to be delivered to the Appellant''s learned Advocate-on-record and no defence was pleaded that they had any doubt about the knowledge of the order as to render it impossible for them to implement the same or had doubts about the genuineness of the order. On the contrary the defence was that to their understanding the order had been carried out.

One of the positive defences taken on behalf of the contemnors is that there has been no violation of the direction or order of the learned Trial Judge because in substance the learned Trial Judge�s. direction was to pay further Additional Dearness Allowance, according to the Government Memorandum, dated February 23, 1983, without taking into consideration the subsequent notifications dated September 12, 1984 and September 15, 1984. The controversy centered round the true construction and meaning of the Government Memorandum. It has been admitted by all the parties, on being asked by us to produce the original Memorandum from the Government records and which could not be traced out, that the copy of the Memorandum, as included in the paper book of F.M.A. 612 of 1988, was the correct copy and could be relied upon. It appears from the said copy that the further Additional Dearness Allowance was to be paid "at the rates in absolute amounts as is admissible to the Government employees on corresponding basic pay in terms of paragraph 1 of the Finance Department''s Memo No. 11930-F dated November 23, 1982". There was no dispute that the calculated figures, as given in the Memorandum relating to Government employees dated November 23, 1982, of the amount of further Additional Dearness Allowance by way of illustrations, were incorrect. Whatever controversy has been raised in case of payment to the University employees appears to have arisen with regard to the exclusion of Dearness Allowances paid to such University employees earlier, which had merged with their grade pay - thus raising the amount of grade pay, as such higher amounts of grade pay resulted in payment of higher amount of further Additional Dearness Allowances though according to the contemnors the Memorandum was clear in justifying the exclusion of merged Additional Dearness Allowance. The Memorandum dated February 23, 1983 makes the payment of further Additional Dearness Allowance subject to certain conditions, the relevant portion of which may be quoted as follows:

If the existing total D.A. element (prior to 1,11.82) be in excess of the total D.A. element (prior to 1.11.82) of corresponding State Government employee, such excess should be adjusted against the amount of further A.D.A. admissible.

The basic pay as mentioned above shall be grade pay drawn by the employees in their respective revised scale of pay and shall not include Special pay, Dearness pay, Personal pay, Administrative pay and other categories of pay, if any, save and except grade pay.

According to the applicants basic pay clearly meant grade pay, notwithstanding that it consisted of all merged D.A. as after merger the D.A. lost its character but became a part of the grade pay. According to the contemnors the definition of basic pay as quoted above indicated that it must be exclusive of, inter alia, dearness allowance but should mean grade pay simpliciter. The second point of controversy has been with regard to the import and effect of the words ''absolute amounts''. If the Respondents'' construction is to be accepted then, it has to be held that the said words do not have any special import or effect as the meaning, which is made out by the Respondents/Appellants of those words seems to be the same without those words. The contemnors/Appellants, however, have taken a stand that the words have special import and effect as the same clearly show that the amounts payable to the University employees would be the same amounts as would be payable to a Govt, employees, in terms of the Memorandum dated September 23, 1982, finally after all deductions and there was no scope of arriving at such figures upon fresh calculation on the basis of particulars, in case of each University employee, including the grade pay. By way of justification for the said stand taken on behalf of the contemnors, it was further argued that otherwise there would come into existence serious discrimination between two groups of employees both of which are to be paid out of Government Coffer.

Since the writ Rules are pending adjudication and since we are concerned only with the adjudication of the allegations of contempt as Appellate Court its is not within our jurisdiction to go into the propriety and correctness of the differing stands taken by the contesting groups in the matter of interpretation of the Government Memorandum, dated February 23, 1983. It will suffice for us to find out that the interpretation of the circular, put on behalf of the contemnors/Appellants, is, at least, prima facie, tenable and/or not absurd on the face of it or liable to rejection in limine. It is to be borne in mind, at this stage, that in case the interpretation as made on behalf of the contemnors/Appellants, falls within the second category of absurdity and liability of rejection in limine the argument of the Respondents/applicants for holding the Appellants guilty of contempt would be strengthened and the finding of the learned Trial Judge may deserve acceptance. Upon reading the Memorandum in question we have no hesitation to hold that the contention of the contemnors/Appellants is, prima facie, tenable and not reject able in limine. The ground on which we have come to above conclusion is that otherwise we have to hold that the words ''absolute amounts'' in the Memorandum are redundant; the term D.A. element would become un-meaning and, lastly, the user of the term dearness pay must have to be construed to be of no import in the exclusion Clause for the purpose of calculating grade pay. This tentative construction is also confirmed if the cases of those employees, who did not opt for revised scales of pay is taken into consideration in the context of procedure laid down in the Memorandum in question for calculating their basic pay.

As stated above, a point was raised before us as to whether there was any scope for the learned Trial Judge to entertain an application for contempt, because, according to the Appellants/contemnors the order of the learned Trial Judge had been stayed by the Appellate Court on appeal, may be on certain conditions, and as such could be said to have merged with the order of the Appeal Court, thus rendering whatever violation might have been committed by the contemnors/Appellants, cognizable only by the Court of Appeal. The Rules for contempt issued and ultimately made absolute, therefore, were misconceived and suffered from lack of jurisdiction. This argument is sought to be strengthened by reference to the defence taken on behalf of the contemnors to the effect that since according to them the order of the learned Trial Judge, as modified by the Court of Appeal, had been fully complied with the stay was wrongly taken to have come to an end because of non-fulfillment of the conditions imposed by the Court of Appeal. The matter required an adjudication by the Court of Appeal and not by the Trial Court and as such before such adjudication issuance of a Rule for Contempt and making the same absolute suffered the blemish of jurisdictional error.

We do not agree with the first premise as stated. It will be too wide to say that where a party believes that due to non-compliance with the condition imposed by the Appeal Court the operation of the order of the Appeal Court stopped continuing, it would not be open to the party to move the Trial Court for enforcement of its order and that the Trial Court would not be entitled to adjudicate such a contention. No doubt once the Trial Curt, upon adjudication, finds that the compliance with the condition imposed by the Appeal Court was there 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.

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.

Now we come to a stage where the principles of law, as enunciated above, will have to be applied to find out what should be the final conclusion in the facts of this particular case as to. the acceptability of the allegation of contempt against the alleged contemnors. The present case admittedly is a case of commission of civil" contempt. In terms of definition of civil contempt as given in Section 2, Clause (b) of the Contempt of Courts Act, 1971, in view of the nature of allegations made in the present case, it has to be established that there has been willful disobedience of the direction/order as was passed by the learned Single Judge on September 26, 1984. We have already discussed that the alleged contemnors must be shown to have sufficient notice of the order as to enable them to carry the same out though we have held that personal service does not mean communication of the order officially through the department of the Court following any particular procedure embodied in the relevant Rules, to the alleged contemnor personally but means communication in any form satisfying the criterion of sufficient, knowledge as to enable him to carry out the order without any doubt about the genuineness and correctness of the communication.

The principles of law, which we have already discussed, indicate that the willfulness, which is an essential element required to be proved to establish an. allegation of contempt, cannot be said to exist when it can be found that the order, the violation of which has been alleged and which forms the foundation. of the proceeding for contempt, is susceptible" to more than one construction one of which having been accepted by the alleged contemnor has been acted upon. Since to hold a person guilty of having committed contempt it must be proved that there has been no mis-understanding of the order so that when such an order is violated with clear knowledge about the effect thereof the violation can be said to be ''willful'' violation. In the instant case we have already pointed out that the order cannot be said to be not interpretable in the manner the contemnors have interpreted it by understanding that absolute amounts had a meaning and it could only be given a reasonable meaning by accepting that payment of the amounts to each employee would result in arriving at the same figure as given in the ready reckoner which was directed, though, not to be taken into consideration by the learned Trial Judge. The interpretation of the Memorandum, dated February 23, 1983, and making calculation of the figures payable to the employees without ignoring the effect of the words "in absolute amounts" cannot be said to be an interpretation lacking bona fides notwithstanding the fact that the figures reached on such calculations might have been equal to the figures as given in the ready reckoners. There is undoubtedly absence of any finding, in the order impugned in the appeal, that such alternative interpretation was not possible or that on calculation such figures could not have been obtained. This defence, therefore, as pleaded on behalf of the contemnors, cannot be rejected but has to be accepted.-ft is necessary, at this point, to bear in mind that because the contemnors also pleaded that in case of payment according to directions of the learned Judge would be discriminatory by enhancing total salaries of the University employees than those of the corresponding categories of Government employees similarly placed and would result in larger expenditure for the State they forfeited the benefit of a bona fide interpretation and implementation of the directions of the learned Trial Judge nor can any mala fide be presumed against them for pleading such defence. In this connection, there is another relevant aspect namely, the defence of legal advice, as obtained from the then learned Government pleader. There has been very emphatic arguments on this point, on behalf of the Petitioners, by submitting that it was not proper for the learned Government pleader to tender such advice when he had been conducting the cases, at different stages, before this Court and can be said to have fully understood the intention of the Court. It is an accepted position that contempt is a technical matter and an alleged contemnor is entitled to take a defence based on a technical plea. Since we have already held that the impugned direction permitted an alternative interpretation of the circular because of absence of specific details, we do not see any absence of bona fides in the advice given by the then learned Government pleader. No doubt, a little over-caution. might have persuaded him to refrain from advising in such fashion but even if knowingly he took advantage of the technical flaw he could not be held to be guilty of lacking bona fides. Last but not the least, is the question about which order was operative on the date the application for contempt had been moved. The specific defence taken was that in terms of the order payments had already been made and nothing remained due. Such a defence was not considered by the learned Single Judge on merit nor any specific finding had been made as to whether. the stay order by the Court of Appeal had lapsed due to non-compliance with the condition Imposed. Without a finding on this point, it cannot be said with certainty that the suspended animation of the order of the learned Trial Judge had come to an end and the order was restored back to life on the date the contumacious act was alleged to have been committed.

For the foregoing reasons we cannot hold that any contempt was committed by the Appellants by violating the order of the learned Trial Judge and,. accordingly, we allow the appeals, set aside the impugned orders and dismiss the applications for contempt.

In the facts of the case each party will bear his own cost. References also stand answered as above.

Gitesh Ranjan Bhattacharjee, J.

I agree with the view expressed by my learned senior brother S.K. Mookherjee J. in his judgment that the Appellants should not be held guilty of contempt, because the Appellants have interpreted the order in a particular manner which interpretation can be said to be a possible interpretation also as has been elaborately discussed in his judgment. I, however, like to discuss certain aspects which were also argued before us at the bar.

One of the questions if that falls for decision of this Full Bench is whether one becomes liable or contempt for willful disobedience of the Court''s order even if the order of the Court was not formally served upon him although he had knowledge of the order. In Dwijendra Krishna v. Surendra Nath (Supra), a Division Bench of this Court, while dealing with a case of contempt of Court observed thus:

In order to found an application for attachment or committal for disobedience of an order service of the order alleged to have been disobeyed has to be proved as. a sine qua non. The rules as to service are very stringent under the English law, and personal service may be dispensed with if it is shown that the person to be served has evaded service and the fact that the person ordered to do the act was actually in Court when the order was made is not a ground for dispensing with such personal service. In the present case for from where having been any service of the order the order itself was not in existence. In Naba Kumar v. S. Banerjee (Supra), a. Division Bench of this Court considered the law on the subject as prevalent in England and followed the same with the following words:

But disobedience, if it is to be punishable as a contempt, must be willful. Disobedience cannot be held to be willful until the order is served. Hence the judgment, or order must be shown to have been served on the party personally, except in the following cases -

(1) prohibitive orders the drawing up of which is not completed;

(2) orders embodying an undertaking to do an act by a named day ;

(3) orders to answer interrogatories or discovery or inspection of documents;

(4) where an order for substituted service has been made ;

(5) where the Respondent has evaded service of the order; Oswald on Contempt, 3rd edition at page 199.

23 The aforesaid two decisions of the two Division Benches of this Court virtually lay down that for holding a person guilty of contempt for willful disobedience of a Court''s order the concerned order if it was a mandatory or positive order, must have been served upon the person concerned, while such service might not be necessary if the order was a prohibitory order and the party concerned had notice of the order and knew that the order was intended to be enforced. There are of course certain other exceptions which at the present moment are not necessary to be adverted to. The view taken by the said two Division Benches of this Court regarding the necessity of personal service in regard to * mandatory orders before one could be held guilty of contempt for disobedience of such order has, however, not been shared by a latter Division Bench of this Court presided over by Monoj Kumar Mukherjee J. (as his Lordship then was) as a result of which the said Division Bench has referred the matter for a decision by a Full Bench and this is how the matter has come before this Bench.- While referring the matter for a decision by, a Full Bench the Division Bench has expressed its opinion in the following language in respect of the views earlier ; expressed by the two Division Benches of this Court referred to above:

We regretfully and respectfully differ from the above quoted views as we feel that there is no rationale behind laying down separate procedure for service of mandatory and prohibitory orders. The principal purpose of procedural law is to facilitate attainment of justice without delay and to commiserate with principles of natural justice. We are, however, fully conscious of the fact that a proceeding for contempt being quasi-criminal in nature the Court must insist upon conclusive proof about the guilt of the person arraigned and the latter is entitled to raise a possible defences available to him including absence of proper service of the order allegedly violated ; but then if strict adherence to technical procedural formalities is insisted upon justice may be the first casualty. In the given case, it may so happen that the person, against whom the mandatory order is made, is personally present in Court, takes all possible steps to get rid of the order and, failing to do so, deliberately sets himself to flout it. ft will be unfortunate if such a person has to be exonerated from a charge of contempt of Court solely on the ground that the order was not personally served upon him.

It may be mentioned, here that the two earlier Division Benches of this Court virtually followed the English Law without making any critical study of the" fact that the English Law on the subject and the English decisions on the point are. based on the elaborate and specific statutory provisions such as the Supreme Court Rules, Matrimonial Causes Rules, etc. of that country, and without considering whether it is desirable to bodily lift the English law based on the statutory rules of that country for application to India where there are no such corresponding or specific rules governing the matter. In view of the reference made by the Division Bench presided over by Manoj Kumar Mukherjee, J. (as his Lordship then was) it is now necessary to examine the matter critically for finding out whether the English Law based on certain statutory rules governing the matter should be indiscriminately applied here where there are no such specific rules., In the present matter what has been alleged is willful non-compliance and disobedience of an interim order passed by a learned single Judge of this Court by which the Respondents were directed to pay pending the hearing of the writ application, to the non-teaching staff in accordance with the directions contained in the Government memo dated February 23, 1983 upto and including the month of September, 1984 without taking into consideration the subsequent notifications dated September 12, 1984 and September 15, 1984. They were also directed to pay all the arrears, if any, in terms of the said notification, dated February 23, 1983 within one week from the date of communication of the order. The allegation is that inspite of the said order of the Court the contemnors have not made payment of the arrears.

Broadly speaking, contempt is classified in two categories, namely, civil contempt and criminal contempt. In Section 2(b) of the Contempt of Courts Act, 1971 ''civil contempt'' has been defined to mean ''willful disobedience to any judgment, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to a Court'', The allegations made in the contempt application in this case amount to civil contempt within the meaning of the term as defined in Section 2(b) of the Contempt of Courts Act, 1971. In order to establish civil contempt what will have to be proved is willful disobedience to any direction of the Court. Now, disobedience to an order of the Court cannot be held to be willful where it appears that the person concerned was not aware of the order of the Court. The question of willful disobedience to an order only comes in after the person concerned becomes aware of the order and the terms of the order which he is required to comply with. Usually one is made aware of an order of the Court by formally serving the order of the Court with its terms on the person concerned and if inspite of such service the person concerned does not comply with the order the question- naturally arises whether he is liable for contempt for willful disobedience of the order. The further question that is involved in this connection is whether there has not been formal service of the order upon the person required to comply with the same, but the person concerned has knowledge of tire order and its terms and inspite of such knowledge he willfully disobeys the order, in that case would he be liable for contempt ? Under the English law a distinction exists between a mandatory or positive order by which a person is directed to do certain act and a restraining or prohibitory order by which a person is directed to refrain from doing an act. Oswald has summarised the. position of law in England which 1 have earlier quoted from the judgment of a Division Bench of this Court in Naba Kumarv. S. Banerjee (Supra) By a reference to the Oswald''s Book on Contempt of-Court it will be evident that the learned author has summarised the position of law on the basis of English decisions and statutory provisions applicable to the matter in that country. It is therefore necessary to look into certain English decisions which also have been relied upon on behalf of the Appellants in this case.

In re: Tuck-Murch v. Loosemore (1906) Ch. Div. 692 it has been observed thus (at page 696):

The practice in the Registrar''s office where an order has been made for a person to do an act within a limited time is to require that the order be personally served for the purposes of founding a motion for an attachment, except in cases of orders for discovery or inspection (Order XXXI, Rule 22), or where an order for substituted service has been made (Order LXVII, Rule 6) or where, in the opinion of the Court, the service has been evaded, and it has not been the practice to make an exception on the ground that the person ordered to do the act was aware of the order. The service of the order after the time limited has expired for doing the act. required is not a good service �. It must not for a moment be understood that any doubt is cast by us upon the result of disobeying an order not to do a thing of which notice can be proved to have reached a Defendant. But there is a wide distinction between such an injunction and an order commanding the Defendant to do. something within a definite time. Order XLI, Rule 5, deals only with an order of the letter class, and, for the protection of the liberty of the subject, requires the endorsement of a memorandum warning the Defendant that the consequence of not complying with the order may be the issue of an attachment. There is no such requirement where the order is prohibitive only.

It is therefore evident from the above observations that the distinction regarding the requirement of service of the order which has been maintained in English law between a mandatory order and a prohibitory order is largely based on the statutory provisions of that country.

In Gordon v. Gordon 1946 (1) All E.R. 247 also the rigor of the provisions of the Matrimonial Causes Rules and the Rules of the Supreme Court were taken notice of and Lord Greene, M.R. made the following observation (at page 253):

If I may respectfully say so, I cannot see how it ever came to be argued or suggested that the court has got some sort of inherent power to dispense with compliance with a perfectly clear rule, of Court requiring an order to be brought in a particularly formal way to a person''s knowledge merely because he knows of the order from a different source. The requirement of a penal endorsement confirms this view.

That was a case where the allegation was of violation of a Court''s order for delivery of a child by one of the parents to the other parent within a specified time. In that case the order of the Court was not formally served upon the person concerned before the expiry of the time within which he was directed to� deliver the child. In view of the prevailing rules the Court, however, found it difficult to find him guilty of contempt because of absence of formal service in time, even assuming that he had knowledge of the order. But even then( the Court was not happy with the position of law and felt it necessary that the rigors of the rules should be relaxed by the authorities competent to frame rules. In this connection Lord Greene, M.R. also made the following observations (at page 253):

I have already indicated my view as to the desirability of some relaxation of the strict fess of the order in cases where the person for whose benefit the order is to be enforced is an infant and not a mere party to litigation. That will be a matter, no doubt, for consideration by those responsible for the rules. We cannot make rules, we cannot dispense with rules.

In the same decision of Gordon v. Gordon (Supra) Du Parcq, L.J. observed thus (at page 254):

As I have said, good may come out of the case because provision may be made in future to prevent what may be -- I do not use the word to suggest that technicalities are not of importance -- a merely technical omission from having the result of assisting a person who is minded to be disobedient.

Again in the same decision Tucker, L.J. observed thus (at page 254-255):

But this case does show that there should be cases, not only cases concerning an infant in the Divorce Court but possibly cases in the King''s Bench Division under the corresponding Order 41, Rule 5 where it is necessary in an urgent case for an order to be made which has got to be carried but at very short notice indeed. This case shows that where such an order has been made in cases of great urgency it may be impossible to draw up the order and to serve it on the81 person concerned in time before the order has to be carried out. Because of the existence of these two rules, the� Matrimonial Causes Rules, 1944, Rule 62, and R.S.C, Order 41, Rule 5, the result is that cases may arise where persons can deliberately spurn the order of the Court knowing that it has been made. I agree that it would be very desirable that those concerned with these matters might consider whether or not some alteration in the rules is required. Speaking for myself, I should suggest that Order 41, Rule 5 might possibly also deserve reconsideration as well as the Matrimonial Causes Rules-, 1944, Rule 62.

The above decision in Gordon v. Gordon clearly shows that although the Court felt that there may be circumstances when the application of the strict rules relating to service of order may lead to highly undesirable consequences, yet the Court could not do anything superseding the provisions of the rules applicable to the matter. They, however, with all emphasis recommended reconsideration and alteration of the rules. The question therefore is where there are no such specific analogous rules in this country, should the Courts of this country apply, the rigors of the rules applicable in England even when the judges here in this country are not shackled by any corresponding rules and even when the English Judges have considered it desirable to relax the rigors of the rules of that country by necessary alteration by the appropriate authorities. ;

In Beeston Shipping Ltd. v. Babanath SA 1985 (1) AH. E.R. 923, the rules applicable to such matter in England were more elaborately discussed. In that case the Court took note of Order 42, Rule 2(1) R.S.C. which provides that the judgment or order which requires a person to do an act-must specify the time at service of the judgment or order, or some other time, within .which the act is to be done. The Court also took notice of Order 45, Rule 6, which provides in effect that where an order does not specify the time the Court may subsequently specify the time. The Court not only took notice of the provision of Order 45, Rule 5 which deals with the question of enforcement of order including enforcement by an order of committal against the person concerned (obviously for contempt), but also quoted the relevant provision of the said rules (at page 926) which, inter alia: provides that where a person required by a judgment or order to do an act within the time specified in the judgment or order refuses or neglects to do it within that time or a person disobeys a judgment or order then the judgment may be enforced by one or more specified means including an order of committal against that person. Thus the rule in England clearly provides that if a person disobeys a judgment or order then the judgment or order may be enforced by an order of committal against that person. The Court also took notice of the concerned rule which specifically provides that ''an order shall not be enforced under Rule 5 unless -- (b) in the case of an order; requiring a person to do an act, the copy has been so served before the expiry of the time within which he was required to do the act''. The Court has also recorded that the expression ''so served'' means served personally. In this connection the Court also observed that paragraph (6) (of Rule 7 of Order 45) provides the well-known exception in \\he case of prohibitions or negative restraining orders. It is therefore evident that under the statutory rules applicable in England formal service of the order requiring any person to do a positive act is an indispensable requirement of the rules which the Courts there could not ignore in a proceeding for enforcement of the order by taking action for contempt. Exception, however, has been made by rule in the case of prohibitory or restraining orders. As a result, the law in England based on statutory rules is that for holding one guilty of contempt for disobedience of an order of the Court requiring him to do an act it must be shown that the statutory requirement of service of the order under, the rule for enforcement of the order by taking out a proceeding for contempt, has been duly complied with (barring a few exceptions) and mere knowledge of the person of such order independent of service will not suffice. However, by the statutory rule an exception has been made for dispensing with formal service of the order'' where the person concerned although not formally served with the order, has knowledge of such order where such order is prohibitory in nature. We have, however, no corresponding provisions or rules here in or under the Contempt of Courts Act, 1971 which would require, as in England, that before taking proceeding for contempt in enforcing the order of the Court requiring a person to do an act the order must be formally served on the person concerned.

In this connection we may take notice of certain provisions of the County Court Rules in England as discussed in the Law of Contempt by Anthony Arlidge and David Eady,. 1982 Edition. Order 29, Rule (1), of the 1981 Rules (County Court Rules) has been -reproduced at page''s 339/340 of the said Law of Contempt by Anthony Arlidge and David Eady. Paragraph (1) of the Rule (1) of Order 29 provides that where a person required by a judgment or order to do an act refuses or neglects to do it within the time fixed by the judgment or order or any subsequent order or where a person disobeys a judgment or order requiring him to obtain from doing an act, then subject to the Debtor''s Acts, and to the provision of the rules the judgment or order may be enforced, by order of the Judge by a committal order against that person. Paragraph (2) provides, inter alia, that subject to paragraphs (6) and (7) a judgment or order shall not be enforced under para. (1) unless a copy of the judgment or order has been served personally on the person required to do or abstain from doing the act in question, para. (7), however, provides, inter alia, that the Court may dispense with service of a copy of a judgment or order under para.(2) if the Court thinks it just to do so. Thus under the County Court" Rules the Court may dispense with the service of a copy of the judgment or order even in respect of a mandatory order if the Court thinks it just to do so and proceed to enforce the same by committal order. This only indicates that the rule requiring service in respect of a mandatory order is perhaps not of universal application even in England where the County Court Rules are attracted. This is mentioned by me only to indicate further that the requirement of service of the concerned order before holding a person guilty of contempt is a requirement of the statutory rules in England where such rules are attracted, while perhaps more flexible rules prevail under the County Court Rules. Therefore while considering the question of formulating the law for the purpose of our country we will have to take notice of the fact that the relevant decisions of the Courts in England and the comments of the illustrious authors indicating the necessity of service are predominantly based on the provisions of the statutory rules applicable there in the particular context.

Certain academic authorities, such as, Oswald, Borei and Lowe, Anthony Arlidge and David Eady, and C.J. Miller, have been referred to on behalf of the Appellants. I have already quoted certain portions from Oswald. It needs no mention that the authors have discussed the matter in the background of the English decisions and statutory rules applicable in England. Their observations and summations which are based on English decisions and statutory rules applicable in England may not be indiscriminately applicable to Indian circumstances where there are no such corresponding rules of similar or analogous nature. I quote below a portion from the Law of Contempt by Anthony Arhdge and David Eady, 1982 Edition (page 334-335):

Where the contempt relied upon is disobedience to an order of the Court, as a general rule, it is necessary to prove beyond reasonable doubt due service of that order upon the person sought to be committed so that he should know what conduct would amount to a breach of that order. It should be noted that in the case of an order requiring a person to abstain from doing an act, such an order may be enforced under Order 45, Rule 5, of the Rules of the Supreme Court notwithstanding that service has not been effected, provided the Court is satisfied that pending service the person in question has had notice either by being when the order was made or subsequently by some other means, such as by telephone or telegram. There is also, including in the case of an order requiring a given act to be done, the power to dispense with service which is only in practice exercised in the clearest case where the . person has notice of the order and is evading service of it.

This shows that the Court has power to dispense with service although in practice it is exercised in the clearest case as mentioned there. I reproduce below some portion from Contempt of Court by C.J. Ivliller (page 242):

The need for� sufficient notice of the terms of the order: In all cases if must be shown that the person against whom it is sought to apply the sanction of the Law of Contempt had sufficient prior notice of the terms� of the judgment or order which it is alleged he has disobeyed. The ways in which this requirement of notice maybe satisfied are set out in R.S.C. Order 45, Rule 7.

This indicates that the requirement of law is that the person concerned must have sufficient prior notice of the terms of the judgment or order. The ways in which this requirement of notice may be satisfied are set out in the rules but the basic requirement'' is that the contemnor must have had sufficient prior notice of the terms of the order. Again at page 243 (ibid) it has been stated thus:

In other words personal service is little more than a convenient way of establishing notice where the order is couched in negative or prohibitory terms. This provision has no application, however, to positive or mandatory orders requiring an act to be done. Here personal service is necessary, subject to the proviso that the Court has a general power under Order 45, Rule 7(7) to dispense with service where it considers it just to do so, as where there is an attempt to evade service. Parallal provisions also operate where there has been a failure to comply with the terms of an undertaking, as opposed to an order or judgment. Indeed this is as one would expect for the equivalence of an order and an undertaking has "been frequently emphasised.

I quote below a portion from the Halsbury''s Law of England, 4th Ed^, Vol.9, at page 39:

Where an order requires a person to abstain from doing an act, it may be enforced, notwithstanding that service of a duly indorsed copy of the order has not been served, if the Court is satisfied that, pending such service, the person against whom enforcement is sought has had notice of the terms of the-order either by being present when the order was made or by being notified of the terms of the order, whether by telephone, telegram or otherwise.

In exceptional, circumstances, the Court may dispense with service of a copy of the order, for example where it is clearly shown that the person to be served is evading service. The power to dispense with service in exceptional circumstances therefore exists.

The decision of the Supreme Court in Hoshair v. Gurbachan, has been referred to on behalf of the ''(6) Supra Appellants. In that case certain Government official made an order for giving possession of lands to certain persons and date was fixed for delivery of such possession. The writ Petitioner who was in possession of the concerned land and who was to be ousted from the land in implementing the order for the delivery of possession issued by the Government official moved the High Court and obtained an order staying delivery of possession till certain date. Subsequently the operation of the stay order was extended by the High Court. Admittedly the initial stay order was officially served on the officials concerned. The extension of the said order was communicated to the concerned officials by interested parties and by an advocate by there was no official communication. The Appellant/conterminous took the plea that in the absence of an official communication of the order they were justified in not acting on what they came to know from the interested parties or their advocates. As a matter of fact in spite of the extension of the stay order delivery of possession was given. It was submitted before the Supreme Court on behalf of the Appellants/contemnors that in a case of this nature, before willful disobedience of the order could be imputed against the contemnors it was legally essential that the order should be officially communicated or served on the persons concerned and in the absence of such communication or service, the proceeding for contempt must fail. In this connection the Supreme Court in para.7 of the said decision in Hoshair v. Gurbachan observed thus:

We are unable to accept this contention as correct.

The legal position has been very succinctly put by Oswald:

The judgment or order should be served on the party personally, except in the following cases:

(1) prohibitive orders, the drawing up of which is not (6) Supra completed;

(2) orders embodying an undertaking to do are act by named day;

(3) orders to answer interrogatories or for discovery or inspection of documents;

(4) where an order for substituted service has been made ;

(5) where the Respondent has evaded service of the order�.

In order to justify committal for breach of a prohibitive order it is not necessary that the order should have been served upon the party against whom it has been granted, if it be proved that he had notice of the order aliunde, as by telegram, or newspaper report, or otherwise, and knew that it was intended to be enforced, or if he consented to the order or if he was present in Court when the order (was pronounced, or when the motion was made, although he loft before the order was pronounced.

Oswald''s Contempt of Court, 3rd Edn., PP.199 and 203. The order in the present case was a prohibitory order and if the Appellants knew that the High Court had prohibited delivery of possession "till May 23, 1958, it was undoubtedly the duty of the Appellants to carry out that'' order. We do not think that the Appellants can take up the plea that as the order had not been officially communicated to them, they were at liberty to ignore it. The Appellants were officers whose duty it was to uphold the law and if they knew that, a valid order had been made by the High Court staying delivery of possession, they disobeyed that order at their peril. There may be circumstances where officials entrusted with the duty of carrying out a legal order may have valid reasons to doubt the authenticity of the order conveyed to them by interested parties and in those circumstances it may be said that there was no willful disobedience of the order made We do not, however, think that the Appellants in the present case had any real justification for doubting the authenticity of the order made by the High Court, even though the order had not been officially communicated to them. Again the Supreme Court in the said decision in Hoshair v. Curbachan (Supra) made the following observations in para.8:

The learned Advocate for the Appellants has referred us to a number of decisions, English and Indian, relating to mandatory orders, or order for the payment of money, or orders which require under the rules of the Court to be served in particular manner�. In those decisions it was held that it was necessary to have the order properly served before charging a person with disobedience of it. We do not think that those decisions are in point, because we are dealing with a prohibitory order and in the matter of prohibitory order it is well-settled that it is not necessary that the order should have been served upon the party against whom it has been granted in order to justify committal for breach of such an order, provided it is proved that the person complained against had notice of the order aliunde. The distinction between prohibitory orders and orders of an affirmative nature was adverted to in N. Baksi Vs. O.K. Ghosh, and a large number of decisions were referred to in support of the rule that in respect of a prohibitory order service of the order was not essential for founding an action in contempt. We do not think that any. useful purpose will be served by examine .those decisions ever again. We are content to adopt for the purposes of this case the rule as succinctly put by Oswald and quoted earlier in this judgment.

It is therefore evident that the Supreme Court adopted and endorsed the rule described by Oswald only so much as was necessary for the purposes of the case under consideration of the Supreme Court and held that in respect of prohibitory order service of the order was not essential for founding an action for contempt. The question whether the service of the order in respect of a mandatory order was essential or not did'' not fall for consideration of the Supreme Court in the said case and the Supreme Court had no occasion to consider, and as a matter of fact did not consider or examine the question whether the observation of Oswald would be applicable in this country with reference to mandatory order also. As regards the Patna High Court decision in N. Baksiy. O.K. Ghosh (Supra) also the Supreme Court did not examine the question of correctness of the said decision where the question involved was regarding disobedience of a mandatory order. The Supreme Court rather took note of the fact that a large number of decisions were referred to in the said ''Patna decision in support of the rule that in respect of a prohibitory order service was not essential for founding an action in contempt. Beyond that, the Supreme Court in the said decision did not examine whether the Patna, view regarding the necessity of service in respect of mandatory order was correct or not. The said Supreme Court decision does not at all purport to be an authority for any proposition that in respect of a mandatory order personal service is essential so as to make such proposition applicable in this country. What the Supreme Court dealt with and decided was the question about the necessity of service in respect of a prohibitory order. We are required to decide on the other hand the question about the necessity of service in respect of a mandatory order which question the Supreme Court neither decided nor had any occasion to decide.

Reliance has been placed on behalf of the Appellants on the decision of a Division Bench of the Patna High Court in N. Baksi v. O.K. Ghosh (Supra). Indeed there the concerned order was a mandatory one and the Patna High Court held that though in a case of a prohibitory order service of the order for "founding an action for contempt was not essential, that rule was not applicable to the concerned order under consideration as that order was not a prohibitory one. In effect the Patna High Court held that in respect of mandatory order personal service cannot be dispensed with for founding an action for contempt. The Court based its decision on the English law without making any critical scrutiny as to whether it is reasonable to apply the English law on the point in this country. As would appear from the para.11 of the-said decision of the Patna High Court argument was raised before the Court that English decisions in support of the proposition that generally no action in contempt can be found without service of the order are not applicable to the facts of that case because those English decisions are based on well defined rule as provided in the Procedural Law of England. The Court, however, refused to endorse this argument with the observation ''that though in our� Courts there is no defined procedure laid out for a proceeding in contempt, as is to be found in the procedural law of England, but the authorities unquestionably establish that the principles underlying those rules have been uniformly acted upon in our Courts''. It needs no mention that the authorities referred to in the said observation must be Indian authorities, inasmuch as the English decisions and the commentaries on the basis of English decisions and rules prevailing in England cannot by their own force be authorities for application to India unless the Indian Courts accept and adopt such propositions of English commentators, the provisions of English rules and the English decisions. The only Indian decision referred to by Patna High Court, namely, Dwijendra- Krishna Dutta v. Surendranath (Supra). As I have already mentioned a latter Division Bench of this Court differed with the said decision as well as the decision of this Court in Naba Kumar v. S. Banerjee (Supra), and this is how the matter has been referred to this full Bench. As I have already mentioned, the said two Division Bench decisions followed the English law without taking notice of the fact that the English law is predominantly based on the procedural rules applicable in that country and without critically examining whether it is reasonably necessary to import wholesale the English law for application in India and whether such wholesale importation serves or hinders the cause of justice. I have already observed, even the English Judges expressed dissatisfaction about the prevailing rules relating to service of order in England and even strongly recommended for their alteration by the rule making authorities and I feel that there is no overriding reason to maintain a distinction in law regarding the necessity of formal personal service of order between a mandatory order and a prohibitory order. In my opinion the rule to be followed here regarding service of a mandatory order before founding an action for contempt for disobedience of such order need not be more rigorous than the rule of service applicable in the case of a prohibitory order.

I must not, however, be understood for a moment to say that formal personal service is not necessary. Indeed service is necessary because service is a convenient mode of apprising the person concerned about the order of the Court and his obligation to comply with the same. But then the question is whether it can be said that what is necessary, may not be taken as compulsory in1 all circumstances, particularly where the necessity of formal personal service has been served by acquisition of knowledge. On very many occasions it may be necessary for the Courts to pass, in the interest-of justice, urgent mandat6ry order the formal personal service of which after drawl of the order may take some time, but the compliance of the order may not brook delay. If in any such circumstance the strict rule of formal personal service is to be adhered to then the very purpose of passing the order may be frustrated by reason of mechanical insistence upon procedural technicalities thereby making justice itself the first casualty and thereby furnishing a handy opportunity to disobey and frustrate the order of the Court by willful noncompliance in spite of having acquired full knowledge of the order passed by the Court. It so happens at times that the Court in the interest of justice has to pass a mandatory order for example, asking the concerned authorities to provisionally allow a Petitioner to sit for an examination or take his interview along with the other examines or candidates, on the scheduled date which is too proximate to the date of order to admit of drawing up of formal writ and of formal service within the short margin of time but the Petitioner may bring the order with its terms promptly to the notice of the authority concerned requiring compliance therewith. If the authority concerned has no valid reason to doubt the authenticity of the order conveyed to him, for the ends of justice, he should not be allowed to. say that he was at liberty to ignore the order and thereby frustrate it simply on the plea that there was no formal personal service. It may become necessary also at times to direct the authorities of an educational institution to provisionally admit the Petitioner to a particular course of study by the last date which is going to expire within a very short time. Again there may be circumstances where the same object may be achieved by passing an order which may be either mandatory or prohibitory in form as one may prefer to choose. For example, the Court may pass an interim order directing an employer to keep one post vacant out of several vacancies to be filled up, till disposal of the application, This is an order in mandatory form. The same object can be achieved by passing an order in the prohibitory form asking the authorities not to fill up at least one post out of the total vacancies. It cannot be reasonable to say that while the authorities will not be allowed on the plea of technicality to ignore the order when it is in the prohibitory form, they will be at liberty, on such plea, to ignore the order if it is in mandatory form.

Incidentally I may mention here that too much adherence to procedural technicalities has hot been favored even by the Patna High Court in the said decision in N. Baksi v. O.K. Ghosh although in respect of a slightly different aspect. One of the points taken before the Court in that case was that the notice (of motion for contempt) served upon the contemnor did not comply with the accepted rule inasmuch as it did not clearly and fully specify the matters in regard to which contempt was alleged to have been committed. The Patna High Court in, para.4 of the said decision in N. Baksi v. O.K. Ghosh fSupra) rejected this plea with the following observations:

Likewise, it is difficult to accept that the notice served upon the Respondent in this case was in any sense too general in its terms or that it did not specify the necessary facts precisely and accurately. On the contrary, my reading of that notice with the copy of the petition which had been sent to the Respondent along with it shows that the facts as to the charge that the Respondent had been called upon to meet were given therein in full. Further I think that in view of the law enunciated in Prokash Chandra v. Manindra Nath ILR (1946) Cal. 499 (A), there is now not much force left in an objection of such highly technical character. It is true that Oswald in his book on contempt has laid some stress even on the technical side of the procedural law in a matter like this. Therein at page 17 he says:

�and that when any antecedent process has to be put in motion every prescribed step and rule, however, technical should be carefully taken, observed and insisted upon�.

But I think, so far as our Court is concerned, this has to be read in the light of the procedure that is now actually in practice here and not in relation to what is prevalent in English Courts. And what our procedural law in a matter like this, as now established by practice, requires us the substantial compliance of the rule relating to notice and not any technical form of it. Therefore, if the facts stated therein are in substance sufficient to apprise the other side of the charge that he has to meet that in law has to be considered as a valid notice.

The above observations of the Patna High Court also clearly indicate that the Courts in India are not necessarily bound to follow, and have not always followed also, the technical rules relating to some aspect of contempt procedures which may be prevailing in England or as described by Oswald and in appropriate circumstances the Courts here do not insist upon too much of technicalities of the procedure even in respect of matters pertaining to contempt, if the interest of justice so requires.

The Supreme Court in Hoshiar v. Gurbachan (Supra) has laid down the law for India in para.8 of the decision that it is not necessary that a prohibitory order should have been served upon the party against whom it has been granted in order to justify committal for breach of such an order, provided it is proved that the person complained against had notice of� the order aliunde. In effect it has been further laid down by the Supreme Court in para.7 of the said decision that one cannot take up the plea that as the order had not been officially communicated to him he was at liberty to ignore it where he knew that a valid order had been made. The Supreme Court, however, has indicated that where a person has valid reason to doubt the authenticity of the order conveyed to him by interested parties in that case it may be said that there was no willful disobedience of the order made. I am of the opinion that the law laid down by the Supreme Court in the said decision in respect of prohibitory orders should also apply to mandatory orders for the ends of justice and there is no justification to maintain any distinction, in the matter of action for contempt, between a mandatory order and a prohibitory order so far as the question of formal personal service of the order is concerned.

The decisions of the Supreme Court in Bunna Prasad v. The State of U.P. (Supra) and in Aligarh Municipal Board v. Ekka Tonga Mazdoor Union (Supra) also, inter alia, - deal with the question as to whether the conform nor becomes liable for contempt if he had knowledge of the order but the order was not formally served on him. In both these cases, however, the concerned orders in respect of which non-compliance was alleged were prohibitory orders. Those two decisions also adumbrate the circumstances in which the liability for non-compliance of the Court''s order is incurred by reason of having knowledge of the order although not formally served. The position, however, becomes different where the person concerned has valid or bona fide reason to doubt the authenticity of the order conveyed to him or of the source of information where the order has not been formally served on him. I, however, need not elaborately discuss those two decisions in connection with the present case, because we are taking the view for reason elaborately discussed earlier that there should not be any distinction, in. the matter of action for contempt, between a mandatory order and a prohibitory order so far. as the question of formal personal service of the order is concerned. We accordingly lay down that the law regarding the requirement of formal personal service of the Court''s order for attracting the liability of contempt for non-compliance of the order, is the same here for mandatory order also as it is for prohibitory """order and there is no justification for maintaining here a distinction between the two notwithstanding the fact that such distinction may exist under English law for reasons not applicable in this country as discussed earlier. The earlier Division Bench decisions of this Court in Dwijendra Krishna v. Surendra Nath (Supra) and Naba Kumar v. S. Banerjee (Supra), so far as those decisions purport to enunciate any proposition contrary to what we have laid down above, are hereby overruled. In our present case since the Appellants had full knowledge of the concerned order they cannot therefore take the plea in� the contempt proceeding that they are not liable for non-compliance of the order simply because they were not formally served with the order although they had full knowledge of the order and even preferred an appeal against that order.

The alleged contemnors have also taken in defence a plea of protection on account of legal advice. It is their contention that even if there has been any non-compliance of Court''s order by reason of anything done or omitted to be done by them by cannot be held guilty of contempt for the same inasmuch as they acted upon the legal advice given in the matter by the learned Government Pleader. By definition ''civil Contempt'' connotes ''willful Disobedience'' of Court''s order. The dictionary meaning of the word ''disobey'' is ''to neglect or refuse to obey''. Therefore non-compliance resulting from negligence also comes within the sweep of the word ''disobedience'' as much as non-compliance by refusal. The dictionary meaning of the word ''willful'' is ''international deliberate, obstinate'', Non-compliance by negligence also may, in appropriate circumstances, amount to contempt. That non-compliance resulting from indifference to Court''s order may also amount to contempt is illustrated by the decision of the Supreme Court in M.L. Sachdev Vs. Union of India and another, It is now a settled proposition that a contempt proceeding is a quasi-criminal proceeding and even a civil contempt assumes a quasi-criminal nature in such a proceeding where the guilt of the person charged with contempt is therefore required to be established beyond reasonable doubt. The requirements for establishing contempt are obviously not more rigorous than the requirements for establishing other similar offences punishable, say, under the Indian Penal Code. u/s 174 I.P.C. a person is liable to be punished with imprisonment and/or fine if such person being legally bound to appear before any Court or public servant legally competent to issue a summons, intentionally omits to appear before such Court or public servant in obedience to such summons. Suppose in a given case a person receiving a summons consults his lawyer and the lawyer erroneously advises that he is not legally bound to appear before the Court or the public servant issuing the summons and accordingly he intentionally omits to comply with the summons and consequently faces a charge u/s 174 I.P.C. can he defend his disobedience by the plea of legal advice ? Section 188 I.P.C. provides for punishment for disobedience of order promulgated by public servant. Can wrong legal advice be a defence against a charge of disobedience u/s 188 I.P.C.? However, the question we are concerned with in these cases is whether a contemnor is absolved from the liability for non-compliance of Court''s order on the ground that such non-compliance was the result of legal advice obtained in the matter. In my considered opinion ordinarily legal advice or for that matter, any advice like advice of superior authorities or of friends or well wishers, etc. cannot afford a valid defence in justification of noncompliance of or disobedience to the Court''s order. Indeed there is no bar in obtaining legal advice or advice of friends, superiors or other persons when the question of compliance of the Court''s order arises, but whatever may be the advice the person concerned who is required to comply with the direction of the Court cannot avoid his responsibility under the shield of such advice. Legal advice or for that matter, any advice obviously cannot give a sanctity to non-compliance of or disobedience to the Court''s order. If legal advice could absolve the contemnor from the liability for contempt on the ground that the contemnor had done whatever he did on the advice of an expert in legal matters, in that event a lawyer who may be facing a charge of contempt on a particular occasion, either as lawyer or otherwise; may also take the plea that the alleged non-compliance was the result of his own advice to himself as an expert in legal matters and therefore he should not be held liable for contempt if he has interpreted the order of the Court in a particular manner, however, pretentious such interpretation may be. When, However, the order of the Court is capable of two or more interpretations in a bona fide way and the person governed by the order goes by one of the alternative interpretations in a bona fide manner, in that event the question of contempt may not arise, irrespective of whether he acted in the matter on the basis of his own interpretation or on the basis of advice of his legal adviser. In such event, however, the question may still arise in particular circumstances whether the person concerned should obtained necessary clarification in the matter from the Court. That ordinarily the plea of legal advice cannot be a valid plea is true not only in respect of the offence of contempt which-is punishable with imprisonment and or fine, but is true, in general, or many other offences also punishable under the Indian Penal Code or under other law. That legal advice cannot ordinarily constitute a valid defence is also a direct corollary to the. jurisprudential maxim ''ignorance of law is no excuse''. Therefore an act or omission which otherwise constitutes an offence of contempt ordinarily does not become any the less a contempt by reason of the fact alone that the same was prompted by legal advice obtained in the matter. The plea of legal advice therefore ordinarily by itself cannot be a valid defence against a charge of contempt. But'' such plea, however, may be a matter for consideration! as a mitigating factor, in appropriate cases, in determining the punishment to be awarded for the contempt committed in the matter. In other words, ordinarily the plea of legal advice will not be a valid defence against a charge of contempt but it may, in appropriate circumstances, afford a mitigating factor for awarding a lenient sentence or a sentence of reduced severity or even no sentence. However, where the legal advice constitutes a possible interpretation of the Court''s order in a bona fide way and the person concerned acted upon such advice in a bona fide way, in that event such person .can in a contempt proceeding validly take the plea of acting upon a bona fide interpretation of the Court''s order as If it was his own interpretation.

In this connection I may mention that a Full Bench of the Punjab and Haryana High Court in Parkash Chand Vs. S.S. Grewal and Others, made the following observation in para.11:

If the Court comes to the conclusion that the conduct amounts to willful disobedience of the Court''s decree or order, the obtaining of legal advice or the pendency of an appeal will not ordinarily constitute a good defence.

A Division Bench of the Patna High Court in Subodh Gopal Bose Vs. State of Bihar, observed thus:

Even the State is subject to the jurisdiction of the Court in the matter of injunction and the State and its officers are guilty of contempt in case of disobedience and violation of the order of injunction so long as it exists. It would not affect the liability of the State even if it had acted on a wrong legal advice. That fact may be considered while determining the question of punishment which is to be meted out. The above view of the Patna High Court was approvingly quoted by a Division Bench of the Bombay High Court in Adarsh Toddy Kamgar Sahakari, Sanstha, Nagpur and Others Vs. State of Maharashtra and Others, , in the following language in para.21 It is no doubt true that this is the correct legal position. However, in this case there is something more than mere wrong advice. This case is obviously distinguishable.

That wrong legal advice may not give protection to the contemnor is also indicated by the recent Supreme Court decision in T.M.A. Foundation v. State of Karnataka 1995 Cr.L.J. 3220, where the officers of the Medical Education Department of the Government of Maharastra were found guilty of contempt of Court for violating the Court''s order inspite of the fact that they obtained legal opinion of the Law Department in the matter. Even the officers of the Law Department were also found guilty of contempt for giving wrong and plainly untenable opinion where the Supreme Court found that there was no room for a bona fide error on the part of the concerned officers of both the Department. I have already recorded my own view in the matter which is consistent with the judicial views of the different other Courts as noted above. However, in our present cases the legal opinion given is found to be a possible interpretation of the Court''s order in a bona fide way as has been discussed by my learned brother S.K. Mookherjee, J. with which I agree respectfully.

As regards the question whether an appeal is maintainable u/s 19 of the Contempt of Courts Act, 1971 against an order passed in a contempt proceeding which is not an order of punishment, the matter has been elaborately discussed in the decision of Division Bench of this Court in Ashoke Kumar Rai Vs. Ashoke Arora and Another, as well as in Ashis Chakraborty v. Hindusthan Lever Sramik Karamachari Cal. L.T. 1992 (1) H.C. 486. We have no reason to differ from the views taken in the said decisions. Since in our present case, the orders appealed against decides a bona of contention relating to a dispute between the parties after initiation of contempt proceedings, the appeals are maintainable u/s 19 of the Contempt of Courts Act in view of the decisions of the Supreme Court in Baradakanta v. Orissa High Court (Supra), Puru-shatam Dass v. B.S. Dhillon (Supra) etc.

Full Bench Reference Nos. 1 to 12 of 1988 in First Miscellaneous Appeal Nos. 601 to 612 of 1988.

Prayer for stay of the judgment is refused.

R. Bhattacharyya, J.

I agree.