State of J&K and others vs Mohammad Sultan Mir

This appeal styled as Letters Patent Appeal by the appellants and registered as such is directed against the orders dated 28.11.2017 and 28.12.2017 passed by a learned Single Judge of this Court in Contempt Petition No.150/2017 titled Mohammad Sultan Mir v. Sheikh Gulzar and others.

The respondent filed a writ petition, SWP No.705.2016, claiming inter-alia, a direction to the appellants to regularize his promotion against the post of Head Assistant w.e.f. 16.02.2013 as one time exception, keeping in view the fact that the respondent had already crossed 50 years of age as also taking into account the recommendations made by appellant No.2 in terms of her communications dated 04.09.2015, 04.12.2015 and

14.03.2016. The writ petition of the respondent came to be disposed of at the threshold on 01.04.2016 by directing the appellant No.1 to consider the case of the respondent for regularization of his services as Head Assistant from the date he was holding the post on incharge basis with exemption of Secretariat Training Course as one time exception as recommended by appellant No.2, in accordance with Rules.

With a view to appreciate the context in which the aforesaid directions came to be passed by the learned Single Judge, it would be apt to reproduce the relevant extract of the judgment dated 01.04.2016, which reads thus:- ""No useful purpose can be achieved by keeping the present petition pending disposal, therefore, it shall be appropriate to dispose of the writ petition by directing respondent No.1 to ensure consideration of the case of the petitioner for regularization as Head Assistant in tune with the recommendations made by respondents 2 and 3. Mr. Khan, learned AAG, is not averse to the said proposition by stating that consideration may be directed to be accorded in terms of the rules. In the aforesaid backdrop, the writ petition is taken on board and disposed of by directing respondent No.1 to consider the case of the petitioner for regularization of his services as Head Assistant from the date he is holding the post on Incharge basis with exemption of Secretariat Training Course as one time exemption as recommended by respondent No.2 in accordance with rules. The consideration shall be accorded and decision taken within a period of six weeks. Writ petition stands disposed of along with connected CMP.

Since the judgment dated 01.04.2016 (supra) was not complied with by the appellants within the time stipulated, as such, the respondent moved the learned Single Judge by way of a contempt petition, which was registered as Contempt No.150/2017. On being put on notice, the appellants herein filed statement of facts to the aforesaid contempt petition pleading therein that the matter with regard to the regularization of respondent's services as Head Assistant by way of one time exemption from passing the Secretariat Training Course had been taken up with the higher authorities and the matter is pending consideration of the administrative department. The statement of facts appears to have been filed on behalf of appellant No.2. The matter was considered by the Contempt Court and vide order dated 28.11.2017, the Contempt Court directed to frame the Rule against the appellants to show cause as to why they shall not be punished for commission of the contempt of Court. The appellants were further directed to remain present on each date of hearing as also to report compliance of the order of the Court. In response to the Rule issued, the appellants appeared in person and submitted their reply. Learned Contempt Court, however, did not accept the reply tendered by the appellants and directed them to ensure implementation of the judgment in letter and spirit without joining issue with reference to the merits of the

case. The appellants have assailed both these orders passed by the contempt Court, inter alia, on the following grounds:-

i) The order dated 01.04.2016 passed by the learned Single Judge in SWP 705/2016 has been fully complied with and consideration order in terms thereof has been passed.

ii) The learned Contempt Court did not appreciate that direction to the appellants was only to consider the case of the respondent for regularization of his services as Head Assistant as also for exemption of Secretariat Training Course as one time exception in light of the recommendations made by appellant No.2, in accordance with rules. The matter was, accordingly, considered and a speaking order was passed by appellant No.2 being order No.289 of 2017 dated 20.12.2017 in which the claim of the respondent was not found covered under rules.

(iii) Since the order of consideration in terms of the judgment had been passed by the appellants, as such, there was no cause or justification to initiate contempt proceedings against the appellants and the respondent, if aggrieved, was entitled to challenge the consideration order by way of separate proceedings.

We have considered the submissions made by the learned counsel for the appellants and also heard Mr. Mian Tufail, appearing on behalf of the respondent, who was on caveat.

Mr. Mian Tufail, learned counsel appearing for the respondent has raised the issue of maintainability of this appeal under Section 19 of the Contempt of Courts Act, 1997 (hereinafter referred to as "the Act") and has argued that in terms of Section 19(1) of the Act, appeal is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt. He would, however, submit that since by virtue of orders impugned, no punishment has been awarded to the appellants, as such; they have no cause to maintain the appeal. He would further submit that even the letters patent appeal under Clause 12 of the Letters Patent would not be maintainable for the reason that the orders impugned are merely interlocutory orders and do not decide issue of law or facts on merits.

The issue with regard to the maintainability of the appeal under Section 19(1) of the Act and letters patent appeal under Clause 12 of the Letters Patent against an order of the Contempt Court issuing Rule for contempt has already been decided by this Court in LPASW No.267/2017 (State of J&K and others v. Mohammad Tayoub Leharwal and anr.) decided on 31.01.2018. What was held by this Court in the aforesaid judgment in paragraph Nos.5 to 9 is reproduced hereunder:-

Sub Section 1(a) & (b) of Section 19 of the Act provides as under:-

Appeal

(1) An appeal shall lie as of right from any order or decision of the High Court in the exercise of its jurisdiction to punish for contempt;-

(a) where the order or decision is that of a single judge, to a bench of not less than two judges of the court;

(b) Where the order of decision is that of bench, to the Supreme Court.

................

From a bare perusal of Section 19(1), reproduced herein above, would indicate that right of appeal would be available only against any order or decision of the High Court in exercise of its jurisdiction to punish for contempt.

Section 94 of the Constitution of Jammu & Kashmir, which is pari materia to Article 215 of the Constitution of India, provides that the High Court shall be a Court of record and shall have all the powers of such a Court including the power to punish for contempt of itself or of the courts subordinate to it. That being the explicit position, appeal under Section 19(1) of the Act would lie only when High Court makes an order or decision in exercise of its jurisdiction to punish for contempt.

A three-Judge Bench of the Supreme Court in the case of D.N.Taneja v. Bhajan Lal; (1988) 3 SCC 26 considered this aspect in extenso. What was held in paragraph-12 of the judgment reads thus:-

Right of appeal is a creature of the statute and the question whether there is a right of appeal or not will have to be considered on an interpretation of the provision of the statute and not on the ground of propriety or any other consideration. In this connection, it may be noticed that there was no right of appeal under the Contempt of Courts Act, 1952. It is for the first time that under section 19(1) of the Act, a right of appeal has been provided for. A contempt is a matter between the court and the alleged contemnor. Any person who moves the machinery of the court for contempt only brings to the notice of the court certain facts constituting contempt of court. After furnishing such information he may still assist the court, but it must always be borne in mind that in a contempt proceeding there are only two parties, namely, the court and the contemnor. It may be one of the reasons which weighed with the Legislature in not conferring any right of appeal on the petitioner for contempt. The aggrieved party under section 19(1) can only be the contemnor who has been punished for contempt of court.

The same view has been reiterated by the Supreme Court in a subsequent judgment rendered in the case of Midnapore Peoples'' Coop. Bank

Ltd. V. Chunilal Nanda and others; (2006) 5 SCC 399. The Supreme Court after taking note of the several decisions rendered on the scope of Section 19(1) of the Act summarized the position of law in the following manner:-

The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarized thus :

I. An appeal under section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt.

II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution.

III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties.

IV. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of jurisdiction to punish for contempt"" and, therefore, not appealable under section 19 of CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under section 19 of the Act, can also encompass the incidental or inextricably connected directions.

V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases).

Viewed through the prism of aforesaid settled position of law, we do not find that the order impugned is the one passed by the Contempt Court in exercise of jurisdiction to punish for contempt, rather it is an order putting appellant No.3 on notice to show cause as to why he be not punished for contempt. Needless to say that the appellants would have ample opportunity to put forth their stand before the Contempt Court and explain that there was no deliberate or wilful disobedience of the order alleged to be violated. It is for the Contempt Court to consider the plea, if any, taken by the appellants in response to the show cause notice and decide the same in accordance with law. Suffice it to say that the preliminary objection raised by respondent No.1 on the maintainability of this appeal is well founded and deserves to be accepted.

This takes us to another plea raised by the learned counsel for the appellants that even if it is assumed that the appeal against the order impugned is not maintainable under Section 19(1) of the Act, yet the same would be maintainable under Clause 12 of the Letters Patent. We have given thoughtful consideration to this aspect of the matter also but do not find any merit in the submission made by the learned counsel for the appellants-

State. Clause 12 of the Letters Patent provides for an appeal from a judgment of the learned Single Judge passed in exercise of original jurisdiction to the Division Bench. What would be the judgment in terms of Clause 12 of the Letters Patent, has been well explained in series of judgments rendered by Hon'ble the Supreme Court as well as this Court. The word "Judgment" is undoubtedly a concept of finality in broader sense. The judgment could either be a final judgment, preliminary judgment or intermediary judgment or interlocutory judgment but it would be a judgment only if it decides some issue or right between the parties finally. The intermediary and interlocutory orders passed during the course of the proceedings which do not determine any right or issue between the parties cannot be said to be the judgment amenable to the appellate jurisdiction of the Division Bench under Clause 12 of the Letters Patent. It is not the case of the appellants that by virtue of the order impugned the Contempt Court has issued directions which go beyond the scope of the judgment alleged to be violated by the appellants.

In that view of the matter, the preliminary objection raised by the respondent with regard to the maintainability of this appeal succeeds.

Accordingly, this appeal is found to be not maintainable, hence dismissed. However, before parting, we would like to observe that in response to the Rule issued, the appellants have already submitted their reply and have apparently taken a stand that the directions issued by the learned Writ Court on 01.04.2016 have been complied with and consideration order passed which would furnish fresh cause of action to the respondent to challenge the same and that no case for contempt was made out. The contempt Court is yet to decide on the aforesaid aspect. The appellants, therefore, would have ample opportunity to raise the aforesaid issue and also those which have been raised by them in this appeal, before the Contempt Court. Needless to say that the Contempt Court would consider the stand taken by the appellants and pass appropriate orders thereon as warranted under law. There shall, however, be no order as to the costs.