JUDGMENT Ajoy Nath Ray, C.J. and Ashok Bhushan, J.
1. Heard Shri Ajit Kumar, learned Counsel for the appellant and Shri U.K. Saxena appearing for the respondent and learned standing counsel.
2. This is an special appeal under Chapter VIII Rule 5 of the Rules of the Court filed against judgment and order dated 10.8.2006 of Hon'ble Justice A.P. Sahi discharging the contempt notice issued in Contempt Petition No. 1145 of 1997.
3. Shri U.K. Saxena, learned Counsel appearing for the respondent has raised a preliminary objection regarding maintainability of this special appeal. Shri Saxena relying on a Division Bench judgment of this Court reported in 2006 (3) AWC 2904; Chandra Shekhar v. J.P. Rajpoot and Ors. contended that against an order of discharging contempt notices neither an appeal under Section 19 of Contempt of Courts Act, 1971 nor special appeal under Chapter VIII, Rule 5 of the Rules of the Court is maintainable.
4. Shri Ajit Kumar replying the preliminary objection of the respondent contended that special appeal is maintainable against the impugned judgment. He although submitted that appeal under Section 19 is not maintainable since the order passed by Contempt Judge is not in exercise of jurisdiction to punish for contempt. Reliance has been placed on the judgment of the Apex Court reported in (2006) 5 Supreme Court Cases 399; Midnapore Peoples' Coop. Bank Ltd. and Ors. v. Chunilal Nanda and Ors.. He has also placed reliance on the another judgment of the Apex Court (2004) 13 Supreme Court Cases 610 V.M. Manohar Prasad v. N. Ratnam Raju and Anr.
5. Before we proceed further to consider the submissions of Shri Ajit Kumar, it is necessary to consider the preliminary objection raised by counsel for the respondent.
6. Under Contempt of Courts Act, 1971, the right of appeal has been given by Section 19, which is as follows:
19. Appeals,-(1) An appeal shall lie as of right from any order or decision of 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 or decision is that of a Bench, to the Supreme Court:
Provided that where the order or decision is that of the Court of the judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court.
(2) Pending any appeal, the appellate Court may order that -
(a) the execution of the punishment or order appealed against be suspended;
(b) if the appellant is in confinement, he be released on ball;
(c) the appeal be heard notwithstanding that the appellant has not purged his contempt.
(3) where any person aggrieved by any order against which an appeal may be filed satisfies the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by Sub-section (2).
(4) An appeal under Sub-section (1) shall be filed -
(a) in the case of an appeal to a Bench of the High Court within thirty days;
(b) in the case of an appeal to the Supreme Court, within sixty days, From the date of the order appealed against.
7. Appeal under Section 19 is maintainable when the order is passed by Contempt Judge in exercise of jurisdiction to punish for contempt. In the present case the Contempt Judge has discharged the notice, hence, there is no question of filing of appeal under Section 19. The counsel for the appellant has also fairly submitted that the appeal under Section 19 is not maintainable in the facts of the present case. His submission, however, is that special appeal under Chapter VIII Rule 5 of Rules of the Court is maintainable. He has placed strong reliance at Paragraph-11 of the judgment of the Apex Court in Midnapore Peoples' case (supra). He submitted that the law regarding maintainability of appeals in contempt proceeding have been summarised in paragraph-II and his case is fully covered by the Principle as enumerated in category V. Paragraph-II of the judgment is set out below:
11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarised 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 C C 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, an 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, nor appealable under Section 19 of the C C 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 connexted 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 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).
8. The question regarding maintainability of the special appeal against an order rejecting a contempt application or discharging a contempt has come for consideration before this Court earlier. A Division Bench judgment of this Court reported in 1998 (3) UPLBEC 2333; A.P. Verma, Principal Secretary, Medical Health and Family Welfare, U.P., Lucknow and Ors. v. U.P. Laboratory Technicians Association, Lucknow and Ors. had considered the said question. That Division Bench held in the said judgment that special appeal against an order refusing to initiate contempt proceeding is not maintainable. The Division Bench however, held that while deciding a contempt application if any order is passed or direction is issued by contempt judge which is referable to jurisdiction under Article 226, the special appeal will certainly lie. Paragraph 6 of the said judgment is extracted below:
6. The question whether an appeal is maintainable under Chapter VIII, Rule 5 of the Rules of the Court at the instance of a party whose application for initiation of contempt proceeding has been dismissed and the Court declines to issue notice under Section 17 of the Act to those who are alleged to have committed contempt of Court, has been examined in considerable detail by a Division Bench in Cheo Charan v. Nawal and Ors., 1997 AWC 1909 and it was held as follows:
...By Section 19, the Act has been created a right of appeal from an order or decision of the Court imposing punishment for contempt. There is no provision for appeal under the Act against the decision discharging the notice of contempt and/or dismissing the contempt petition. When statute provides for appeal and also lay down the order/decisions against which such an appeal can be filed, the legislature's intention is that appeal against all other orders is barred. As Section 19 has provided for appeal against an order or decision imposing punishment for contempt, the right to file an appeal against all other orders has been taken away by the statute. The result is that the appeal against a decision, rejecting the contempt petition is not maintainable under Rule 5 of Chapter VIII also.
In Shantha V. Bai v. Basnant Builders 1991 Cr.L.J. 3026, a Division Bench of Madras High Court speaking through Dr. A.S. Anand, C.J. (as his Lordship then was) has held that no appeal is maintainable under Clause 15 of Letters Patent against an order refusing to initiate proceedings for contempt of Court. We are in respectful agreement with the view taken in the aforesaid decisions that no appeal is maintainable under Chapter VIII, Rule 5 of this Rules of the Court against any order passed in proceedings under Contempt of Courts Act as it is a self contained Code and it also provides for a remedy of appeal under Section 19 though only against specified type of orders or decisions.
9. Another Division Bench judgment of (1997) 2 UPLBEC 1215 Sheo Charan v. Nawal and Ors. had again considered the same question. In the aforesaid case contempt Judge has dismissed the contempt application and discharged the notices. The question regarding maintainability of the appeal under Chapter VIII, Rule 5 was gone into and the Division Bench after referring to several judgments of the Apex Court has opined that special appeal is not maintainable. The Division Bench in that very case observed that the applicant is not without remedy. It was held that he can challenge the decision of Contempt Judge rejecting the contempt application before the Apex Court under Article 136 of the Constitution. The ratio of Division Bench judgment in Chandra Shekhar's case (supra) which has been relied by counsel for the respondent, is also to the same effect. Again to the same effect there is another Division Bench judgment of this Court (of which one of us Ashok Bhushan.J was a member) in Smt. Subhawati Devi v. R.K. Singh and Anr. reported in 2004(3) AWC 2414. Now referring to the judgment relied by counsel for the appellant in Midnapore Peoples' case (supra), as enumerated in paragraph -11 (V), the Apex Court has laid down that if the High Court 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 or by seeking special leave to appeal under Article 136 of the Constitution of India.
10. In the present case, the order of contempt Judge is an order by which Court took the view that no further proceedings need to be gone into and notices are discharged and contempt is consigned to the records. The last paragraph of the judgment is set out below:
The decision relied upon by the learned Counsel for the applicant are of no avail in the present proceedings inasmuch as this Court is not supposed to go beyond what has been said in the judgment and orders, the violation whereof is being complained by the applicant. The language of the judgment and order of this Court is explicit and does not suffer from any ambiguity. I have already indicated reasons hereinabove for not accepting the suggestion made by the learned Counsel for the applicant. As a matter of fact the present application appears to be misconceived and the applicant ought to have assailed the orders passed by the Special Land Acquisition Officer in the event the applicant was aggrieved by the award dated 8.10.1996 or by the order dated 19.12.1996. In the opinion of this Court the orders dated 23.8.1995 and 8.11.1996 have been substantially complied with and therefore, there is no reason to infer that the orders of this Court have been flouted. As rightly pointed out by the learned Counsel for the applicant himself, this Court would not attempt to read any thing more than what has been stated in the orders passed by this Court. Accordingly, this Court does not find it necessary to proceed with this matter any further and the notices are discharged and the contempt petition is consigned to records.
11. The learned contempt Judge while discharging the contempt notice has not issued any direction or passed any order. The submission of the appellant's counsel that learned Judge has decided an issue on merit also cannot be accepted. The learned contempt Judge has only taken into consideration the earlier judgments of this Court contempt of which was alleged. The learned contempt Judge after taking into consideration all facts and circumstances observed that from the facts there does not appear to be any wilful or deliberate disobedience committed either by the Collector or by the Special Land Acquisition Officer. The order of contempt Judge discharging contempt notice cannot be said to be a judgment issuing any direction or deciding any issue on merits. The present is a case which cannot held to be covered in principles enumerated in Paragraph 11 (V) of the Apex Court's judgment. Another judgment relied by the counsel for the appellant is V.M. Manohar's case (supra). In the said judgment the contempt Judge issued direction directing Government to sanction the post in A.P Scheduled Castes Finance Corporation of East Godavari District so that the petitioners can be absorbed on permanent posts. The aforesaid fact has been noticed in paragraph-4 of the judgment. In view of above facts the Apex Court took the view that appeal was maintainable. Paragraph 4 and 8 of the Judgment is quoted as below:
4. Aggrieved by the rejection of the request for regularisation in pursuance of the order passed by the High Court on 17.8.1998, the employees moved contempt petition. The learned Judge while dealing with the contempt matter at one place observed that the petitioners should be deemed to have been working against the clear vacancy but at the same time it is also directed thereafter, "the respondents, particularly the Government is directed to sanction the post in A.P. Scheduled Castes Finance Corporation of East Godavari district so that the petitioners can be absorbed on permanent posts...." The contempt petition was ultimately closed with a direction to the respondents to comply with the order passed on the date.
8. The learned Counsel for the employees in some of the appeals, submit that the Division Bench has held that no appeal would lie against the order of the Contempt Judge since no one was punished for contempt. We find the argument to be fallacious. If a direction is given by a court without jurisdiction, against such orders an appeal would lie to a court normally exercising the appellate jurisdiction. Secondly, this ground loses importance in view of the fact that in some of the matters the authorities and the State have filed appeals directly against the order passed by the learned Judge disposing of contempt matter, directing the authorities and the State Government to sanction the posts. No such direction could be given in contempt proceedings.
In view of above the judgment of Apex Court in V.M. Manohar's case (supra) has no application in the facts of the present case and does not help the appellant.
12. In view of foregoing discussions we are of the view that this special appeal is not maintainable under Chapter VIII Rule 5 of the Rules of the Court and is dismissed accordingly.