Present:
(Hon. Mr. Justice Amitava Lala & Hon. Mr. Justice Ashok Srivastava) Appearance:
For the Appellants : Mr. Ashok Kumar Pandey.
For the Respondents : Mr. Parmeshwar Yadav, & Standing Counsel.
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Amitava Lala, J.-- This special appeal has been filed with an application for leave to appeal, against the order dated 06th December, 2010 passed by the learned Single Judge purportedly on an application under Article 215 of the Constitution of India filed in Civil Misc. Writ Petition No. 26307 of 2010 (Dhruv Narain Singh Vs. State of U.P. and others). The order impugned passed by the learned Single Judge is as follows:
"Sri R.B. Pradhan, Standing Counsel informs that the enquiry in respect of the payment of salary against non-sanctioned and non-available posts in various institutions of district-Ballia has been completed and it has been found that in as many as 24 institutions payment of salary has been made against non-sanctioned/non-available posts. Detail of the institutions and the payment so fraudulently made has been brought on record today before the Court. The enquiry in that regard is stated to have been conducted by the Chief Secretary and thereafter by Sri Chandra Prakash, Principal Secretary-I along with other officers, as detailed in paragraph 5 of the affidavit filed today.
Future affidavit in this writ petition shall be filed by Sri Chandra Prakash himself.
This Court finds that although the institutions, the District Inspector of Schools and the Accounts Officers, who are involved in such fraudulent payment of salary against non-sanctioned and non-available posts in district-Ballia, have been identified yet neither any criminal action nor departmental proceedings/ proceedings for recovery of the loss caused to the State Exchequer have been initiated in right earnest.
Investigation qua the criminal liability must be done with all fairness and with all promptness. Departmental enquiry must also be initiated immediately and all attempts should be made to fix the responsibility, in respect of financial loss caused, upon all responsible and effort to recover the amount be initiated.
Let the Chief Secretary file his personal affidavit by 16.12.2010 disclosing the action so taken, as directed above.
List on 16.12.2010."
(Quoted from the record) The core question involved herein is that when as per the Allahabad High Court Rules, 1952 (hereinafter in short called as the "Rules of the Court") a separate Bench is constituted for the purpose of hearing the contempt cases, whether the Judge, who had passed the original order, can entertain any application and pass any order under Article 215 of the Constitution of India on the ground of non-compliance of order of such Judge or not. For the purpose of better understanding, Article 215 of the Constitution is quoted hereunder:
"215. High Courts to be Courts of record.-- Every 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."
Basically, the Rules of the Court is handmade of justice. Hence, by such Rules, inherent power of the constitutional Courts as provided under Article 215 of the Constitution of India can not be usurped.
High Court means an institution as a whole. Judges are integral part of it. As an order of the Judge becomes order of the Court, so the order of the Court includes the Judge, who passed the order. In other words, the Judge, who had passed the original order, can not be excluded from invoking aforesaid inherent jurisdiction. Inherent jurisdiction of the High Court can not be said to be in isolation of the Judge who had dealt with the matter and passed order. High Court is a constitutional institution when the Judges are constitutional authorities and the power of the Judges is given by the Article 215 of the Constitution of India itself. In 1971, the Contempt of Courts Act, 1971 (hereinafter in short called as the ''Act, 1971') was introduced by the Union Parliament. This Act is independent of the power of the High Court under Article 215.
In any event, let us find out the scope of hearing of civil contempt by a Court other than the Court which passed the original order. Under Sections 2(b) and (c) of the Act, 1971, civil contempt and criminal contempt are defined. Definitions are as follows:
"(b) "civil contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court;
(c) "criminal contempt" means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which--
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any Court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;"
The definition of the civil contempt, as given above, speaks of "a Court" when the definition of the criminal contempt speaks of "any Court", "any judicial proceeding", and "the administration of justice in any other manner". Consciously the Parliament made the difference. Under no stretch of imagination "a Court" can be construed as "a High Court" comprising all the Judges instead of "a Bench" of one of the High Courts. Civil contempt is matter between a Court and the contemnor/s of that Court when criminal contempt is matter between a Court, being institution as a whole, and the contemnor/s.
Section 23 of the Act, 1971 gives rule making power to the Supreme Court and the High Courts. By virtue of such power, administratively the Allahabad High Court had inserted a chapter, being Chapter XXXV-E, in the Rules of the Court by a notification dated 24th November, 1976, as published in U.P. Gazette dated 12th February, 1977. Sub-rules (a) and (b) of Rule 4 under Chapter XXXV-E of the Rules of the Court, being relevant for the purpose, are quoted below:
"4 (a) Every case relating to civil contempt shall be presented before the Bench constituted for that purpose.
(b) Every case of criminal contempt coming under Section 15 of the Act, shall be presented before the Bench of not less than two Judges constituted for the purpose."
Can it be said that Rule 4(a), as above, is akin to Section 2(b) of the Act, 1971? Our answer is ''No'.
The purpose of civil contempt and the purpose of criminal contempt are distinct and different. Normally the civil contempt applications are required to be heard by the Judge or Bench, which passed the original order because it relates to non-compliance of the order of that Court unlike the criminal contempt, which relates to scandalising, prejudicing or interfering with the administration of justice of the entire institution which can be heard by any Court. This practice is prevalent in many High Courts. There is a reason behind it. A Bench, which passed the original order, will be more competent in remembering the situation under which the order was passed. Contempt proceeding will be faster than a new Court, which has to apply its mind from the beginning. Showing rigour, in case of necessity, will be much more balanced. Therefore, hearing of the civil contempt applications by the Court, which had passed the original order, will be far more effective.
In any event, validity of Chapter XXXV-E of the Rules of the Court was upheld by a three Judges' Bench of the Supreme Court in 1997 (3) SCC 11 (High Court of Judicature at Allahabad through its Registrar Vs. Raj Kishore Yadav and others) but on a different context. In the said judgement, we do not find any discussion about difference between "a Court" for the civil contempts and "any Court" for the criminal contempts. The Supreme Court arrived at the conclusion that as soon as an order is passed by a Judge, to whom the work has been assigned, it becomes an order of the Court and not the order of the Bench, which has passed such order. The High Court has ample power in relation to administration of justice, including any power to make rules of the Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Bench under Article 225 of the Constitution. We have got nothing to say about power. Our concern is only about applicability of such power. The above discussion is made from the point of view of Article 225 of the Constitution, neither from the point of view of Section 4(a) of the Act, 1971 nor from the point of view of Article 215 of the Constitution. Such power can not take away independent power of the High Court under Article 215 of the Constitution. Power of a High Court to punish for contempt of itself is an inherent power. The power is inalienable and can not be controlled or limited by any statute or by any Rule. The jurisdiction is a special one and not derived from any other statute but only from Article 215 of the Constitution of India. Inherent power of a superior Court of Record remains uneffected even after the codification of the law of contempt and though Section 15 of the Act, 1971 prescribes the procedure, the inherent power under Article 215 can not be curtailed by anything contained in the said Act. The provisions of the Act, 1971 are in addition to and not in derogation of the Article and it can not be used for limiting or regulating the exercise of the jurisdiction contemplated by the Article. These are the constant views of the Supreme Court as hereunder. See three Judges' Bench judgement reported in AIR 1991 SC 2176 : 1991 (4) SCC 406 (Delhi Judicial Service Association etc. Vs. State of Gujrat and others), AIR 1992 SC 904 : 1993 Suppl (1) SCC 529 (Pritam Pal Vs. High Court of Madhya Pradesh Jabalpur through Registrar), again three Judges' Bench judgement reported in 2001 (1) SCC 516 : 2000 Suppl (5) SLR 610 (T. Sudhakar Prasad Vs. Govt. of A.P. and others), and five Judges' Bench judgement reported in AIR 1998 SC 1895 : 1998 (4) SCC 409 (Supreme Court Bar Association Vs. Union of India and another). Hence, the Act, 1971 can not control Article 215 but vice versa.
So far as interim orders are concerned, there is no basic difference between the civil contempt applications arising out of interim orders and final orders. In the case of interim orders, interest of the parties is protected due to pendency of the original proceedings. Court can take cognizance of the matter, upon being called, and pass an appropriate order/s even in the original proceedings.
In any event, instead of giving opportunities to the litigants to choice the forum, multiply the litigation and delay in complying the order, it is desirable that applications for civil contempt will be made in a Court, which passed the order originally except in the case of death or retirement or transfer of the Judge, where it can be assigned to similar Bench. On the other hand, the applications for criminal contempt will be made in any Court irrespective of passing any order.
There are some practical difficulties, which are also required to be discussed hereunder.
(a) Due to the existing practice, every contempt application is almost a rehearing of the original cause before the Court of contempt and by mistake in many of the cases, the original orders are interpreted or fresh orders are passed in the shape of compliance beyond the scope. We feel more surprised when we see even the original order passed by a Division Bench has been interpreted by the Judge sitting singly holding the Court of Contempt. In contempt cases, the Court does not adjudicate upon any claim between litigating parties. It is a matter between the Court and the contemnor. Jurisdiction is to be exercised in a summary manner in aid of the administration of justice.
(b) The other aspect is required to be seen. Maximum number of the Judges of the High Courts are involved in disposing the writ matters leaving aside very few for the civil, criminal and others. The anxiety of the Court is to see that justice is not only to be done but it will also be seen to be done. Following such principle, whenever an order is not complied with by any authority, an aggrieved party invokes the contempt jurisdiction, having no remedy available under the Rules of the Court to execute the order. In the form of contempt application, the real intention of the aggrieved party is to get compliance of the order passed by the High Court but not to punish any one. Therefore, the contempt application is, in effect, an execution application of the original order/s. Some of the High Courts possess the power of execution under their Rules. Therefore, an in-depth study is required to be made in the administrative side of this High Court as to whether such scheme of execution of the orders can be made available to the litigants of this High Court or not. If the administrative side of the High Court principally agree to provide such scope of execution, modalities will be made accordingly keeping eyes open about reduction of load. For example, a separate Registry headed by a Judge of District Judge level, as Registrar, can be formed to entertain the execution applications. If it appears to him that orders are complied with, he will record the disposal and preserve the file accordingly till the period fixed or to be fixed under the Rules. If not, it will be presented to the respective Judges for appropriate order who, in turn, take up those matters like "chamber business" of the Chartered High Courts fixing half an hour for one, two or three days in a week for expeditious disposal.
(c) One other aspect is that the execution applications are continuance of process of the original proceedings when the contempt applications are independent proceedings, which increase the number of pendency. Therefore, if the procedure for execution is adopted, the High Court will be benefited in reducing the number of pendency by one stroke. Concerned Judge will be free to render his service in other allocation of business.
This judgement is an eye opener. Now, it is open for the deliberation, consensus and taking any administrative decision by the Judges, if they like, to amend the Rules of the Court.
Coming back to the original question whether the application under Article 215 of the Constitution of India can be entertained by the Bench, which passed the original order, we are of the considered view that the power under Article 215 of the Constitution is an inherent power of the Court and when the Court comprises of several Judges, such inherent power of the individual Judge, who passed the original order, can not be usurped. There is a difference between the inherent power of the Court under the constitutional scheme and the power under an Act for adjudication of civil and criminal contempts. Judges, being constitutional authorities, can not be debarred from adjudicating any application under Article 215 of the Constitution of India, if called upon. The distribution of the work and the jurisdiction of the High Court amongst different Division and Single Benches is permissible to the Chief Justice of the High Court as per the rules framed by the High Court on its administrative side. According to us, that exercise has nothing to do with Article 215, which emanates from the Constitution directly and independently. Article 215 of the Constitution saves inherent power of the High Court as a Court of record to suitably punish the contemnor, who is alleged to have committed contempt of its order. Though the order, which has been passed by a Judge, ultimately becomes the order of the institution but when inherent power is originated from the Constitution, being constitutional authorities, any of the Judges, who passed the original order, upon being called, can not be debarred from using the weapon under Article 215 of the Constitution. Since the inherent power of the High Court, founded on history, has been embodied in the Constitution, as following from their being ''Courts of Record', it is clear that this power has an independent constitutional footing, which can not be taken away by any legislation, sort of constitutional amendment. Central Legislature has no legislative competence to abridge or extinguish the jurisdiction or power conferred on the High Court under Article 215. The Parliament's power to legislate in relation to law of Contempt is limited. The High Court includes all the Judges and by no means, the Judge, who has passed the original order, can be excluded from entertaining any application under Article 215 of the Constitution of India.
Thus, in totality, there is no bar in entertaining the application under Article 215 of the Constitution of India by the Bench, which has passed the original order, for its compliance. Hence, the application, which has been made before the learned Single Judge, is maintainable. But so far as the civil contempt applications under the Contempt of Courts Act, 1971 are concerned, those can only be made before the same Bench subject to amendment, if any, of the Allahabad High Court Rules, 1952.
Having so, we do not find any reason to grant leave to the appellants to file the special appeal, therefore, the application is rejected.
Consequently, the special appeal stands dismissed.
However, no order is passed as to costs.
Let a copy of this judgement be supplied to the Registrar General of this Court.
(Justice Amitava Lala) I agree.
(Justice Ashok Srivastava) Dated: 23rd May, 2011.
SKT/-
Hon'ble Amitava Lala, J.
Hon'ble Ashok Srivastava, J.
Under the authority of the Hon'ble Chief Justice additional cause list has been printed for the purpose of delivery of judgement and the same has been delivered at 2.00 P.M. in the Court upon notice to the parties.
The special appeal is dismissed, however, without imposing any cost.
Dt./-23.05.2011.
SKT/-
For judgement and order, see order of the date passed on the separate sheets (nine pages).
Dt./-23.05.2011.
SKT/-
Order on:
Leave Application No. 359785 of 2010.
In Special Appeal Defective No. 1154 of 2010.
Hon'ble Amitava Lala, J.
Hon'ble Ashok Srivastava, J.
In view of the judgement and order of the date passed on the memo of appeal, this application is rejected, however, without imposing any cost.
Dt./-23.05.2011.
SKT/-
For judgement and order, see order of the date passed on the memo of appeal.
Dt./-23.05.2011.
SKT/-