Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Neither Under Chapter VIII Rule 5 Of High Court Rules Nor U/s 19 Of C.C. Acts-appeal Is Maintainable Against Rejection Of Contempt Application.
JUDGEMENT TITLE : Suresh Kumar Mishra Vs. Arun Kumar Rai On 15/04/2013 By Allahabad High Court
CASE NO : CONTEMPT APPEAL NO. 3 OF 2013.
CORAM : Hon'ble Vinod Prasad,J. And Hon'ble Surendra Kumar,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

RESERVED
AFR
CIVIL MISC. CONTEMPT APPEAL NO. 3 OF 2013
Suresh Kumar Misra ..................... Appellant
Versus
Arun Kumar Rai, Deputy Labour Commissioner, U.P. Varanasi Region, Varanasi.......................... Respondent

Hon'ble Vinod Prasad J.
Hon'ble Surendra Kumar J.
(Delivered By Hon'ble Vinod Prasad J.)
This Contempt Appeal Stems From Impugned Judgement And Order Dated 26.2.2013 Passed By Hon'ble Single Judge Of This Court In Civil Misc. Contempt Application No. 6052 Of 2012, Suresh Kumar Misra Versus Deputy Labour Commissioner, U.P. Varanasi Region, Varanasi. By The Impugned Order Hon'ble Single Judge Has Withdrawn The Notice Issued U/s 12 Of Contempt Of Courts Act(hereinafter Referred To As The Act) And Has Refused To Initiate Contempt Proceedings Against The Respondent, Who Is Deputy Labour Commissioner, Varanasi Region, Varanasi, By Dismissing Contempt Petition Filed By The Appellant /applicant.
Recapitulating Genesis Of This Appeal, As Is Evident From The Personal Affidavit Filed By The Appellant In Above Noted Contempt Application, It Appears That The Appellant/ Applicant Was Appointed As A Mechanic In M/S Rohit Automobiles (P) Ltd, Nardatpur, Jagatpur, District Varanasi On 10.3.2005, But He Could Remain In Employment Only For Ten Months And Fifteen Days As On 25.1.1996, His Services Were Terminated By The Employer On Oral Directions. According To Appellant's Case This Was Done Without Paying Him Any Entitled Amount U/s 6H, U.P. Industrial Disputes Act 1947, And Without Affording Him Any Opportunity Of Hearing In Flagrant Violation Of Principals Of Natural Justice, As Is Contemplated In Principles Of Audi Alterem Partem. Consequently Taking Recourse To The Available Legal Remedy, Appellant/ Applicant Successfully Filed A Claim Petition Before The Labour Court , Varanasi Region, Varanasi, In As Much As Labour Court Passed An Award In His Favour And Against His Employer, On 31.3.99, Directing His Reinstatement With Complete Back Wages, By Treating Appellant/ Applicant To Be In Continuous Service Without Any Break From The Date Of His Termination Ie: 25.1.96. M/S Rihit Automobiles (P) Ltd, Nardatpur, Jagatpur, District Varanasi, The Employer, Being Aggrieved By The Aforesaid Award Dated 31.3.99, Challenged It In Civil Misc. Writ Petition No. 45464 Of 1999, But He Failed To Secure Any Interim Relief Of Stay And Ultimately It Remained Unsuccessful, As It's Said Writ Petition Was Dismissed By This Court. It Seems That Pendent Lite Aforementioned Civil Misc. Writ Petition By The Employer, An Execution Proceedings, U/s 6H(1), Was Initiated By The Appellant/ Applicant Against The Employer, Before The Respondent, For Executing The Award And Hence Employer Again Approached This Court By Filing Another Civil Misc. Writ Petition No. 32973 Of 2000, M/S Rohit Automobiles (P) Ltd Versus Suresh Kumar Misra And Others, In Which Writ Petition, After Hearing Both The Sides, Through Their Respecting Counsel, This Court Directed The Petitioner Employer To Deposit Rs. 1 Lac With The Respondent Deputy Labour Commissioner, Varanasi Region, Varanasi, Who Was Further Directed To Invest The Said Deposit In An Interest Bearing Fixed Term Deposit Scheme, For A Period Of One Year, In A Nationalised Bank, Vide It's Order Dated 1.8.2000, Which Order Is Annexure No.1 To The Appellant's Affidavit. Employer's Aforementioned Second Writ Petition No. 32973 Of 2000, Also Met With The Same Fate Of Dismissal As That Of The First, By Hon'ble Single Judge, After Exchange Of Counter And Rejoinder Affidavits, On 25.1.2012, Vide Annexure No.2, To The Appellant's Affidavit By Holding That-
"Now Since The Writ Petition Being Writ Petition No. 45464 Of 1999 Itself, Against The Award, Has Been Dismissed, This Writ Petition Can Also Not Survive As No Error Has Been Shown With Respect To The Calculation Of The Amount That Was Required To Be Paid To The Workman Respondent No.1 Under The Award Dated 31.3.1999.
Under The Circumstances, This Writ Petition Also Fails And Is Liable To Be Dismissed. It Is Provided That A Sum Of Rs. 96,555.10 Paise Be Paid To Workman Along With The Interest Accrued Thereon For The Period The Said Amount Was Invested In The Fixed Deposit Within A Period Of Two Months From The Date A Certified Copy Of This Order Is Produced Before The Authority Concerned.
The Writ Petition Is, Accordingly, Dismissed."
To Complete The Chronology Of Sequence Of Events, It Further Transpires That Armed With Afore-reproduced Order Dated 25.1.2012, Appellant/ Applicant Submitted An Application, Before The Respondent, Appending Therewith The Aforementioned Order By This Court Dated 25.1.12, Which Was Received By The Respondent On 22.2.12, Which Is Evident From Annexure No.4, To The Appellant's Affidavit. Appellant/ Applicant Rue, In Para 7 Of His Affidavit, That Instead Of Rs 2,73,447 To Be Paid To Him He Was Paid Only A Sum Of Rs. 1,55,317 And This Claim Was Expressed Through A Slated Chart Of Payments In That Paragraph. It Further Transpires That Since Appellant/ Applicant Was Not Disbursed The Amount Claimed And Calculated By Him, As Aforementioned, That He, For Realising The Same, Preferred Above Noted Civil Misc. Contempt Application No. 6052 Of 2012, Suresh Kumar Misra Versus Deputy Labour Commissioner, U.P. Varanasi Region, Varanasi Before The Hon'ble Single Judge Of This Court. From The Impugned Order Dated 26.2.2013, It Is Perceivable That Initially Notice Was Issued To The Respondent, But Subsequently, Hon'ble Single Judge Found That There Was Nothing In The Orders Passed In Both The Civil Misc. Writ Petitions Preferred By The Employer, Entitling The Applicant/ Appellant To A Compound Interest And That There Was No Wilful Or Deliberate Violation Of The Writ Order, That The Hon'ble Single Judge, Discharged The Notice And Dismissed The Contempt Petition Filed By The Applicant/appellant. It Is This Order Dated 26.2.2013, Which Is Now Under Challenge Before Us In This Appeal.
Before Summating And Vetting Appellant's Contentions It Will Be Useful And Appropriate To Take Note Of The Impugned Order Dated 26.2.2013 And Hence We Reproduce It As Under-
" Heard Learned Counsel For The Parties.
This Petition Has Been Filed With The Allegation That Despite The Order Dated 25.1.2012 Passed In Writ Petition No. 32973 Of 2000, The Opposite Party Has Not Paid The Entire Amount.
It Appears That The Employer Of The Applicant Had Challenged An Award Passed In Favour Of The Applicant , But No Interim Order Was Passed. Meanwhile, At The Instance Of The Applicant, The Recovery Proceedings Were Initiated Under Section 6H(1) Of The U.P. Industrial Disputes Act And A Recovery Of Rs. 96,555.10p. Was Issued On The Basis Of The Award. In The Said Writ Petition, An Interim Order Was Passed Directing The Employer Of The Applicant To Deposit Rs. One Lac Only With The Opposite Party, Who Was Directed To Invest It In A Fixed Term Deposit In A Nationalised Bank For A Period Of One Year. The Said Amount, After The Dismissal Of The Writ Petition, Has Been Given To The Applicant Together With The Accrued Interest.
Learned Counsel For The Applicant Contends The He Was Entitled To Compound Interest. There Is Nothing In The Writ Order To Show That The Applicant Was Made Entitled To Compound Interest. Admittedly,the Amount Was Invested In The Bank And The Entire Amount, Including The Interest, Has Already Been Released In Favour Of The Applicant.
In View Of The Aforesaid, It Cannot Be Said That There Is Any Wilful Or Deliberate Violation Of The Writ Order.
Accordingly, The Notices Are Discharged, Contempt Petition Is Rejected And Consigned To Record."
At The Time Of It's Admission, At The Very Thresh Hold Of This Appeal, Some Very Interesting And Catchy Factual And Legal Questions Sprang Up For Determination, Having Significant Bearing On The Outcome Of This Appeal And Hence, Ab-initio, We Deal With Those Aspects As Under.
Firstly This Appeal, Albeit Titled A Contempt Appeal, Has Been Filed Under Chapter VIII Rule 5 Of High Court Rules. On Being Questioned Appellants Counsel Submitted That The Same Is Maintainable. He Tried To Intertwine Contempt Appeal With Special Appeal Under Chapter VIII Rule 5 Of High Court Rules, But After Arguing For Some Time, Hesitatingly, Conceded That Section Has Been Wrongly Mentioned. We Recollect Here That Jurisdiction To Hear Special Appeals Lies With A Bench Presided Over By Hon'ble The Chief Justice And Not With This Bench. The Matter Does'nt End Here. This Court Has Held In Smt. Subhwanti Devi Versus R.K.Singh: (2004) 3 AWC 2414 That Contempt Of Courts Act Is A Self- Contained Code And When Appeal Against An Order Passed By A Single Judge Is Provided U/s 19 Of The Said Act, Then No Special Appeal Under Chapter VIII Rule 5 Of The High Court Rules Is Maintainable Except In Circumstances Where The Order Passed By Learned Single Judge Is Circumscribed With The Purview Of ''Judgement" As Is Mentioned Under Chapter VIII Rule 5 Of High Court Rules. However, In Respect Of Orders Such As The Present Impugned One Is Concerned ,it Has Categorically Held That No Appeal Under Chapter VIII Rule 5 Of High Court Rules Is Maintainable. Without Prolixing This Issue Any Further We Quote The Aforesaid View Of This Court As Under -
"29. Learned Counsel For The Appellant, However, Submitted That Even If An Appeal Does Not Lie Under Section 19 (1) Of Tha Act, An Appeal Is Still Maintainable Under Clause 10 Of The Letters Patent Read With Chapter VIII, Rule 5 Of The Rules As The Instant Appeal Has Been Categorised As Special Appeal.
30. Let Us, Therefore, Consider Whether This Appeal Is Maintainable Under Clause 10 Of The Letters Patent Read With Chapter VIII, Rule 5 Of The Rules."
Answering The Poised Question The Bench In Paras 36,37,38 And 39 Of The Same Decision Has Held As Under-
"36. Keeping The Above Principle In Mind, We Now Deal With The Question As To Whether An Order Or A Decision Of The Learned Judge Rejecting The Application For Contempt And Refusing To Punish For Contempt Amounted To A "judgment" Within The Meaning Of Clause 10 Of The Letters Patent. To Answer This Query, The Question To Be Decided Is As To Whether Such An Order Would Determine Any Right Or Liability Of The Parties. In Our View, In Rejecting The Application For Contempt And Discharging The Notice Of Contempt, It Cannot Be Said That To Proceed Or Not To Proceed Against The Alleged Contemnor Was A Matter Of Discreation Of The Court And The Appellant Cannot Be Said To Have Acquired Any Right To Ask For Discretion To Be Exercised In A Particular Manner. It May Also Be Said, In This Connection, That The Right Of Appeal Can Be Made Available To An Aggrieved Party And An Aggrieved Party, For The Purpose Of Proceeding For Contempt, Has Been Held To Be Only A Party Who Has Been Punished For Contempt. Therefore, It Can Be Safely Concluded That When The Court Refuses To Commit The Alleged Contemnor, It Does Not Decide Any Right Or Liability Arising Between The Parties. Therefore, We Are Of The View That An Order Passed Rejecting An Application For Contempt Is Not Appealable Under Clause 10 Of The Letter Patent Read With Chapter VIII, Rule 5 Of The Rules. We, However, Make It Clear That There May Be Cases Where Some Orders Or Directions Have Been Made In Variation Of The Original Order In Which An Appeal Can Be Held To Be Maintainable In Law. However, We Also Make It Clear That For The Purposes Of Holding That An Appeal Is Maintainable In Law Or Not, One Has To Deal With The Facts Of The Particular Case For Reaching To A Proper Conclusion.
37. There May Be Another Ground For Holding That An Appeal Under Chapter VIII, Rule 5 Of The Rules Against An Order Discharging The Contempt Notice Is Not Maintainable, In Law. A Division Bench Of This Court In Sheo Charan V. Naval And Ors., 1997 (2) UPLBEC 1215 : 1997 AWC 1909, Has Held That Section 19 Of The Act Has 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. In View Of The Fact That The Act Provides For Appeal And Also Lays Down The Orders/decisions Against Such An Appeal Can Be Filed, The Intention Of The Legislature Must Be Said To Be That An Appeal Cannot Be Filed Under Clause 10 Or Under Clause 15 Read With Chapter VIII, Rule 5 Of The Rules As The Contempt Of Courts Act Is A Complete Code Wherein Provision For Appeal Has Been Specifically Provided.
38. Under Chapter VIII, Rule 5 Of The Rules Appeal Is Provided Before The Division Bench Of This Court From A Judgment Not Being A Judgment Specified Therein, Of One Of The Learned Judges Of This Court. Therefore, The Question That Needs To Be Decided As To Whether An Appeal From A Decision Of The Learned Judge Made In The Exercise Of His Power Under The Act Is Maintainable Even Though The Act Itself Has Provided For An Appeal From Such A Decision. We Are In Full Agreement With The Views Expressed By The Division Bench Of This Court In Sheo Charan (supra), In Which It Has Been Clearly Established That If The Statute, Which Has Conferred The Jurisdiction On The Court, Itself Lays Down The Procedure, And Provides For Appeal From Its Decision, The Appeal Can Be Filed Only Under And In Accordance With Such A Statute. In Such A Case General Right Of Appeal From A Decision Of The Court Stands Excluded By The Statute, Which Has Conferred The Jurisdiction On The Court. Such Being The Position, We Are, Therefore, Of The View That An Appeal Against A Decision Rejecting The Contempt Petition Was Not Maintainable Also Under Chapter VIII. Rule 5 Of The Rules. The Same View Has Been Expressed By A Division Bench Of This Court In A.P. Verma And Ors. V. U.P. Laboratory Technicians Association, Lucknow And Ors., 1998 (3) AWC 2264 : (1998) 3 UPLBEC 2333, Wherein It Has Been Held That No Appeal Is Maintainable Under Chapter VIII, Rule 5 Of The Rules Of The Court Against Any Order Passed In A Proceeding Under The Contempt Of Courts Act As It Is A Self Contained Code.
39. We Also Express An Opinion As Already Done That No Appeal Is Maintainable Under Clause 15 Of The Letters Patent Against An Order Refusing To Initiate Proceedings For Contempt Of Courts. Same View Was Also Expressed By A Division Bench Of Madras High Court In Shanta V. Bai V. Basnanti Builders, 1991 Cri LJ 3026, Wherein It Was Held That No Appeal Was Maintainable Under Clause 10 Or 15 Of The Letters Patent Against An Order Rejecting The Application For Contempt And Discharging The Contempt Notice."
Drawing The Curtain On The Said Aspect We Respectfully Are In Full Agreement With The Division Bench Decision In Smt. Subhwanti Devi(Supra) And Concur With It. No Special Appeal Under Chapter VIII Rule 5 Of High Court Rules Is Therefore Maintainable, When Impugned Order In The Nature Such As Present One Has Been Passed By Hon'ble The Single Judge.
This Now Takes Us To Another Question As To Whether This Appeal Is Maintainable U/s 19 Of The Act Or Not, Since It Was Urged That Mistake In Referring The Section Should Not Be An Impediment For This Court In Dispensation Of Substantial Justice And Consequently We Take Up That Aspect.
Above Noted Aspect Is Not The Maiden Issue Which Has Cropped Up Before Us For The First Time. Recently In A Decision Mohd. ShameemVersus Pradeep Kumar, Up Nagar Ayukta, Nagar Nigam, Allahabad And Another: Civil Misc. Contempt Appeal No. 2 OF 2013, We Had The Occasion To Consider The Said Aspect At Length And After Noticing And Relying Upon Various Apex Court Decisions As Well As Smt. Subhwanti Devi(Supra) This Bench Has Concurred With The Opinion That No Appeal Is Maintainable U/s 19 Of The Act, When Hon'ble Single Judge Has Refused To Initiate Proceedings For Punishing For Contempt. It Was Held By Us In That Decision As Under:-
"An Exercise In That Area Indicate That Section 19, Besides Other Aspects, Talks Of Two Important Expressions One ''order And Decision' And Other ''in Exercise Of Its Jurisdiction To Punish For Contempt'. Analysing From A Common Man's Parlance And Read Together These Expressions Indicate That An Appeal Shall Lie As Of A Right Only When High Court Exercises Its Jurisdiction To Punish A Contemner For Contempt And Not Otherwise And Therefore Only A Step In That Direction To Punish For Contempt Is Appealable U/s 19 Of The Act. This View Finds It's Support When Sub Clause (2) Of This Section 19 Is Examined Under Principles Of Harmonious Constructions, As It Provides For Suspension Of Punishment Or Order Appealed Against And Of Release From Confinement. If The High Court Does Not Initiate Contempt Proceedings, Where Is The Question Of Suspension Of Execution Of Punishment Or Order Appealed Against Or To Release A Person From Confinement? The Language And The Manner In Which Section 19 Has Been Enacted By The Legislature Leaves No Manner Of Doubt That Legislature Never Intended To Make That Order Also Appealable By Which High Court Has Declined To Draw A Contempt Proceedings Against A Juristic Person."
Our Aforesaid View Is Also Supported By Apex Court View In Mahboob S.Allibhoy Versus State Of Maharastra: (1996) 4 SCC 411, Wherein Apex Court Has Been Pleased To Hold As Under:-
"When The Court Either Suo Moto Or On A Motion Or A Reference , Decides To Take Action And Initiate Proceedings For Contempt; It Assumes Jurisdiction To Punish For Contempt. He Exercise Of Jurisdiction To Punish For Contempt Commences With The Initiation Of A Proceeding For Contempt And If The Order Is Passed Not Discharging The Rule Issued In Contempt Proceedings, It Would Be An Order Or Decision In Exercise Of Its Jurisdiction To Punish For Contempt.Againt Such Order, Appeal Would Be Maintainable".
It Is Thus Evident From The Above To Referred Passages That An Appeal U/s 19 Of The Act Is Maintainable Only When An Order Is Passed Not Discharging The Notice Issued To Initiate Contempt Proceedings And Not Otherwise. This Has So Been Held In Para 19 Of Smt. Subhwanti Devi(Supra) Also.
Wrapping Up The Discussion We Are Of The View That Neither Under Chapter VIII Rule 5 Of High Court Rules Nor Under Section 19 Of The Act This Appeal Is Maintainable And Consequently It Is Dismissed As Such.

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