Bogunkedar High School vs Samarendra Bandopadhyay and Others

Bhagabati Prasad Banerjee, J.—The contempt rule was issued for the violation of the orders dated 14.10.1990 and 22.06.1992, passed by this Court. On behalf of the Opposite Party/contemner, the preliminary point has been taken that the contempt application has become barred by limitation. A Question arises in this case whether the period of limitation prescribed u/s 20 of the Contempt of Courts Act, will apply in a contempt proceeding initiated by the High Court not only for the purpose of violation of the order passed by the High Court under Article 226 of the Constitution of India but also in exercise of the power conferred the High Court under Article 215 of the Constitution of India.

Article 215 of the Constitution of India provides that Every High Court shall be a Court of Record and shall have the powers of such a court including the power to punish for contempt of itself.

Section 20 of the Contempt of. Courts Act provides that No court shall initiate any proceeding for contempt, either on its own motion or otherwise, after expiry for a period of one year from the date of which contempt is alleged to have been committed''.

Expression ''Contempt of Court'' has been defined under Sub-section 2(a) which means ''civil contempt or criminal contempt; civil contempt is defined u/s 2(b) which means ''willful disobedience to any judgment, decree, direction or other process of a court or criminal breach of undertaking given to a court. Contempt of Courts Act did not provide any definition of the word ''Court'', but it defines High Court Sub-section 2(d) of the said Act which means ''the High Court for a State or a Union Territory, and includes the court of the Judicial Commissioner in any Union Territory''.

Article 226 of the Constitution provides that ''notwithstanding anything in Article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases, any Government, within these territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by part III and for any other purpose''.

The Constitution of India did not provide any machinery or procedure for enforcing the orders passed by the High Court under Article 226 of the Constitution of India. The contempt proceeding is the only procedure by which the order and/or judgment passed by the High Court under Article 226 of the Constitution of India can be enforced. In case an order issued by the High Court under Article 226 of the Constitution for enforcement of fundamental rights or other rights is flouted by the respondents; or in other words if the authorities take away the fundamental rights of a citizen and make him suffer under an administrative order or statutory order and the High Court passes an order under Article 226 of the Constitution of India by issuance If Mandamus or other orders, directions of writs, can it be said that the said judgment could not be executed or enforced after the expiry of one year from the date of violation of the said order and/or disobedience of the said order? In this connection, it may be mentioned that a decree passed by the Civil Court can be executed even after several years and the period of limitation under the Indian Limitation Act is not one year but twelve years.

In Forry''s Extra-Ordinary Legal Remedies at paragraph 225 it has been stated that ''a contempt order itself may however be of a dual character. As to the fine, it is in vindication of the court''s authority, and is a punishment for contempt, criminal or quasi-criminal; in respect of imprisonment, it is a remedy of a party to coerce obedience and is civil''.

The Supreme Court, in the case of Naruddin Mallick & Ors. vs. State of West Bengal & Ors., Civil Appeal No. 2207 of 1989, (an unreported Judgment) in SLP (C) No. 1744 of 1989, had set aside the order passed by the High Court on the journal that the High Court dismissed the contempt application by holding that the contempt was a matter between the court and the alleged contemner and for some reasons, the Court was not inclined to exercise any discretion in initiating a proceeding of contempt, and accordingly rejected the contempt application. The Supreme Court considered this matter and held. "On the issue of a writ dated 19.11.1986 the appellants acquired a right to get the order issued by the court executed. The contempt alleged in this case is not criminal contempt. What the appellants wanted the High Court to do was that the High Court should enforce the order made by it on 19.11.86. The application of the appellants was virtually in the nature of an execution application. We do not find that there were any circumstances which disentitled the appellants to the relief rayed for by them. In the circumstances, the High Court was in error in dismissing the application stating that they were not inclined to exercise their discretion. We, therefore, set aside the order passed by the High Court against which this appeal is filed and remand the case to the High Court to examine first whether the respondents have complied with the order dated 19.11.86 and if it finds that the order has not been obeyed to take appropriate action for compelling the respondents to obey the said orders." Can it be said that the order passed under Article 226 of the Constitution could not be executed and will be barred by limitation after the expiry of one year by virtue of Section 20 of the Contempt of Courts Act?

The Supreme Court in the case of R.L. Kapur Vs. State of Madras, held that the jurisdiction conferred on the High Court under Article 215 of the Constitution of India to punish for contempt of itself is a special one and not arising or deriving from the Contempt of Court''s Act, 1952 and, therefore, does not come within the purview of the Penal Code. Such a provision is also clear from the provisions of Contempt of Courts Act. Further it was observed that far as contempt of High Court''s order itself is concerned as distinguished from that of a court subordinate to it, the Constitution vests these rights in every High Court, and so no act of Legislature could take away the jurisdiction of the High Court. Further it was held that the High Courts as a court of record being clothed with a special jurisdiction, has also all incidental and necessary powers to effectuate that jurisdiction. When Constitution itself did not provide any restriction or provision and did not make any exercise of jurisdiction under Article 215 of the Constitution subject to any power upon the legislature or State.

In The Tata Iron and Steel Company Ltd. Vs. Ramniwas Poddar and Others, a learned Judge of this Court has held rightly that the Contempt of Courts Act, 1971, cannot define limit or regulate the High Court''s power under Article 215 of the Constitution of India to punish for contempt of itself summarily. It does not permit the legislature to curtail power of High Court under Article 226 of the Constitution of India. It was held that if the framers of the Constitution intended that the High Court''s powers to punish for contempt of itself can be defined, limited or regulated by law, an express provision would have been made to that effect in the Constitution itself. Therefore, neither the Parliament nor the State Legislature has any power to define, limit or regulate the procedure regarding High Court''s special jurisdiction to punish summarily for contempt itself.

The Supreme Court in the case of Sukdeo Singh vs. Hon''ble C.J. Teja Singh and Another, reported in AIR 1954 SC 186 has held that all the powers possessed by the Chartered High Courts before the Constitution of India came into force, were preserved, recognised and confirmed by Article 215 of the Constitution. Under Article 226 of the Constitution of India this power cannot be simply taken away or restricted by Parliament or State Legislature.

In Mohd. Ikram Hussain Vs. State of U.P. and Others, it was held that the High Court''s power for punishment of contempt has been preserved by the Constitution and it is also inherent in a Court of records. The only curbs on the powers of the High Court to punish for contempt of itself, are contained in the Contempt of Court''s Act, which limits the terms for which a person can be imprisoned to six months'' simple imprisonment.

The Karnataka High Court in the case of S.N. Nagaraja Rao vs. Chikkachennappa, reported in 1981 Cr.L.J. 843 , held that the procedure laid down u/s 15(1) (b) of the Contempt of Courts Act, does not apply in cases where High Courts deal with contempt of itself as no statue can take away the jurisdiction of the High Court as the court of records to punish for contempt of itself, Karnataka High Court in the said case relies on a decision of the Supreme Court in Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, wherein it was held that when the Constitution confers jurisdiction in terms absolute and unqualified, the question whether there is any limitation on that power or jurisdiction must be found out from the provisions of the Constitution of India itself and from nowhere else.

The learned Single Judge of this Court in Tata Iron & Steel Co.''s case (supra) held that Sections 16 and 20 of the Contempt of Courts Act were ultra vires Article 215 of the Constitution. It was further observed that Section 15, however, can co-exist with the summary powers of the High Courts only as an alternative or additional procedure so far as Article 215 is concerned and non-compliance thereof will not affect the High Court''s power to punish. 1971 Act also can co-exist as laying down the law for contempt of courts subordinate to the High Courts.

In my view, if it is contended that provisions of Section 20 of Contempt of Courts Act curtails the power of the High Court under Article 215 of the Constitution of India, in that event provisions of Section 20 of the Contempt of Courts Act are ultra vires Articles 215 and 226 of the Constitution of India, it has to be borne in mind that rights depends upon remedy and if there is no remedy in that event existence of light will he merely a lip service. It cannot be held that the authority who violates the order, or denies the fundamental rights of a citizen and when the court clearly finds that the authority concerned is guilty of violating the fundamental right or laws of land, in that event it will be nothing but rewarding the contemner who violates the order under Article 226 of the Constitution of India at will and goes unpunished and the order passed by the High Court is to be treated a mere waste paper lapse of one year from the date of violation of the order.

It is the duty of every High Court to enforce the right conferred under Part-III of the Constitution and/or when court issues an order, direction or writs in exercise of power under Article 226 of the Constitution of India. None of the case laws deals with this point that contempt in writ matters for violation of the order passed by the writ court has a dual character or nature. Firstly, it is the only remedy for executing or enforcing order passed by a writ under Article 226 of the Constitution of India and secondly, it is a contempt because it has violated the order of the High Court.

In case of decree or order passed by the Civil Court period of limitation for execution is 12 years and in that event the prescribing period of limitation for violation of the order of the subordinate court one year is said to be reasonable and that it is well within the competency of Parliament, but in the absence of any constitutional provision conferring power on Parliament to put restriction on the power of the High Court under Articles 226 and 215 of the Constitution, Parliament has no power to sit over the order passed by the High Court under Article 226 of the Constitution or make the order in fructuous after the lapse of one year from the date of violation of the order. This will change the basic structure of the Constitution as enshrined in the preamble of the Constitution, Judicial Review is regarded as one of the basic, structure of the Constitution.

In Minerva Mills Ltd. and Others Vs. Union of India (UOI) and Others, the Supreme Court held ''the power of judicial review is an integral part of our Constitutional system and without it, there will be no Government of laws and the Rule of Law would become a teasing illusion and a promise of unreality''. The Supreme Court observed that ''...... that even there is one feature of our Constitution, which more than any other is basic and fundamental, to the maintenance of democracy and the rule law, it is the power of judicial review and it is unquestionably to my mind a part of the basic structure of the Constitution.''

In S. P. Sampath Kumar vs. Union of India, reported in Act 1987 SC 389, the Supreme Court has held that the Constitution has expressly provided the provisions of Article 323A by which the Administrative Tribunal was established excluding the jurisdiction of the High Court. The Parliament and/or State Legislature has no power or jurisdiction and/ or authority to restrict or abridge the power of the High Court under Article 226 of the Constitution of India and that the period of limitation prescribed u/s 20 of the Contempt of Courts Act is not and cannot be made applicable to a proceeding for Contempt for violation of the order passed under Article 226 of the Constitution of India. Contempt of Courts Act never intended that provisions of Contempt Act should also be made applicable to the High Court and for that reason the definition of the word ''Court'' in Section 2(a) of the Contempt of Courts Act did not include the High Court and further Contempt of Courts Act never intended to and entitled to interfere with the right of the court of records. Any other contrary view will bring about an anarchy in the judicial system in the country and violators of the Constitution will go unpunished after one year and it cannot be the intention of the Constitution-makers.

Contempt cannot be said to be a matter between the court and the contemnor, if there is violation of the order passed by the writ court under Article 226 of the Constitution of India. There is another aspect of the matter which is most important that it is the only mode for executing the order passed under Article 226 of the Constitution of India and the Contempt of Courts Act is never intended to curtail the power of the High Court by putting a period of limitation for execution of the order passed under Article 226 of the Constitution of India. Putting a limitation on the power of the High Court under Article 215 of the Constitution clearly means to interfere with and/or abridge and/or curtail the power of the High Court and the basic structure of the Constitution by Parliament, which Parliament by law cannot do.

The Gujrat High Court, in the case of Dineshbhai A. Parikh Vs. Kripalu Co-operative Housing Society, Nagarvel, Ahmedabad and Others, had held that contempt proceedings could not be initiated by a court after the expiry of a period of one year from the date of the alleged commission of contempt, as provided in Section 20 of the Contempt of Courts Act. In my view, I cannot agree to such a position, inasmuch as the power of the High Court under Article 215 of the Constitution could not be curtailed and/or abridged by putting a law of limitation which has not been expressly provided by the Constitution but by making a law. Even assuming that the contempt proceeding could not be initiated after a period of one year from the date of which the contempt alleged to have been committed, in that case also it has to be borne in mind that when an order is violated, the violation is not made on a particular date by putting on record or by declaration or otherwise that the contemnor has violated the order on a particular date. In none of the cases on which this Court could lay hand, has considered a very important aspect of the matter, that is in case of violation of an order, it is a continuing violation.

The Supreme Court, in the case of Bhagirath Kanoria and Others Vs. State of M. P., has held that :

Turning to the matters before us the offence of which the appellants are charged is the failure to pay the employer''s contribution before the due date. Considering the object and purpose of this provision which is to ensure the welfare of the workers, we find it impossible to hold that the offence is not of a continuing nature...... such offence must be regarded as continuing offence to which the law of limitation cannot apply.

The concept of continuing offence was also applied by the Supreme Court in the case of State of Bihar Vs. Deokaran Nenshi and Another, as below :

A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involved a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there the offence is committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence and for all and an act or omission which continues and therefore constitutes a fresh offence every time or occasion on which it continues....

The Supreme Court, in the case of Firm Ganpat Ram Rajkumar Vs. Kalu Ram and Others, held that "the failure to give possession, if it amounts to a contempt in a situation of this nature is a continuing wrong. There was no scope for application of Section 20."

In that case, the contempt alleged was of an act of not giving possession by force and the contempt act of not giving possession by force of the order of learned Sub-Judge. In that case, an order of eviction was passed against a firm and it was ordered that the order of eviction should not be executed for a period of six months on firm''s filing usual undertaking in the court and the order was not complied with in as much as no such undertaking was given nor the premises were vacated by the firm. It was held that the firm and its partners were bound to comply with the order of Supreme Court and the order cannot be defeated by the sons and grandsons of the partners of the firm by filing a suit for permanent injunction against the landlords and one of the partners restraining them from ejecting the said plaintiffs and by obtaining the order of temporary injunction in that suit. The plaintiffs in the said suit must be held to have deliberately not objected to Supreme Court passing the order and thereby allowed the firm to mislead the court. The contempt is a serious matter and it interferes with the right of those who are found guilty of contempt, ho court should allow any party to mislead the court and thereby frustrate its order. In that case, it was held that assuming that the firm and its partners could not be found guilty of violating any undertaking as there was none, in the facts and circumstances of the case, the court should ensure compliance with its order and see that vacant and peaceful possession is given to the landlord in the interest of justice.

The contempt jurisdiction has been conferred on the High Courts not only to preserve majesty of law by taking appropriate action against one howsoever high he may be, if he violates court''s order, but also to keep the stream of justice clear and pure.

The purpose of contempt jurisdiction was summarised in Attorney General vs. Times Newspaper, (1974) AC 273, as below:

In an ordered community, courts are established for the specific settlement of disputes and for the maintenance of law and order. In the general interest of the community it is imperative that the authority of the courts should not be imperilled and the recourse to them should not be subject to unjustifiable interferance. When such unjustifiable interference is suppressed, it is not because those charged with the responsibilities of administering justice are concerned for their own dignity, it is because the very structure of ordered life is at risk of the recognised courts of the land are so flouted and their authority was and is supplanted.

Accordingly, in my view, the ''disobedience'' does not and cannot mean the day or the date on which time order defied has been passed as it must be held to be a continuous process. It cannot be the intention of the Constitution mater that an authority who violates an order of the High Court, particularly in writ jurisdiction and the order is not carried out, in that event the remedy under Article 226 would be completely nugatory after the lapse of one year from the date of disobedience of the order can the court give such a liberal meaning thereby permitting an offender to go scot-free and go unpunished. Contempt of an order under Article 226 has to be viewed not for the purpose of punishment but by drawing up contempt proceeding. It is the duty on the part of the High Court under Article 226 of the Constitution to see that the order passed by the High Court is carried out and/or executed by any means whatsoever, otherwise a constitutional remedy under Article 226 Will become infructuous in the absence of any act or provision being made for execution of an order passed under Article 226 of the Constitution of India. A contemner who violates an order passed by the High Court under Article 226 of the Constitution has to be punished and the period of limitation as prescribed u/s 20 of the Contempt of Courts Act cannot be made applicable to the proceedings for contempt for violation of an order passed under Article 226 of the Constitution. None of the judgments referred has considered this aspect of the matter which is of par amount consideration and if the constructions given by the other courts are followed, in that event that would mate the constitutional remedies under Article 226 of the Constitution totally ineffective.

The stream of administration of justice has to remain unpolluted. In this connection, the Supreme Court observed in the case of Chandra "Shashi vs. Anil Kumar Verma, reported in 1994 AIR SCW 1994, as below:

''The stream of administration of justice has to remain unpolluted so that purity of court''s atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are therefore required to be well taken care of to maintain the sublimity of court''s environment, so also to enable it to administer justice fairly and to the satisfaction of all concerned.

The persons who cause threat to the judicial system of this country, are required to be property dealt with not only to punish them for the wrong done, but also to deter others from indulging similar acts which shake the faith of people in the system of administration of justice.

Accordingly, to put a limitation to the power of the High Court in the proceedings for contempt of violation of an order passed under Article 226 would not only amount to rewarding wrong doers and encouraging others from indulging in violating the orders of the court as after one year they could not be touched and proceeded with. This will shake the faith of the people in the judiciary of this country. The order passed by the High Court under Article 226 of the Constitution, cannot be allowed to be frustrated and made nugatory by imparting the period of limitation u/s 20 of the Contempt of Courts Act. I respectfully disagree with the contrary view taken by other High Courts including the Gujrat High Court and accordingly we are clearly of the view that the period of limitation prescribed u/s 20 of the Contempt of Courts Act cannot be made to a proceeding for contempt drawn up under Article 215 of the Constitution of India for violation of an order passed under Article 226 of the Constitution.

Accordingly, the period of limitation prescribed u/s 20 of the Contempt of Courts Act is not applicable to proceedings for contempt for violation of the order passed by the High Court under Article 226 of the Constitution, in view of the reasoning given above.

On the merits of the case whether any contempt has been committed or not, it is necessary to set out some of the facts.

The writ application which was filed and the petitioner was disposed of on 14th December. 1990, with the following directions

Accordingly, the Director of School Education, West Bengal is directed to forthwith sanction required number of teaching staff in accordance with the principles and policies laid down in Government order No. 1044-SE dated 12th February 1975 and Government Circular No. 190-EDn (C.S.) dated 5th December 1979. In the year 1985 the District Inspector of Schools had recommended for sanction of less number of posts. But by afflux of time and with the increase of students and work load of the teachers, situation has changed for which the school authorities may be right in claiming the sanction of 12 teaching and non-teaching staff. On the basis of those Government orders and circulars the Director of School Education, shall sanction additional teaching and non-teaching staff within four months from today on the basis of the representation and materials before it and the report of the District Inspector of Schools. If necessary, the Director of School Education may cause an enquiry forthwith through the District Inspector of Schools (SE) Purulia and may call for information from the school authorities. But steps in terms of the order should be taken within four months from today.

All formalities and inspection should be completed within the aforesaid period.

Pursuant to the said order, it appears that the inspection was carried out by the District Inspector of Schools and the said inspection report dated May 11, 1992, was forwarded to the Director of School Education whereupon the Director of School Education had sanctioned. Thereafter the school was inspected twice and two reports, one dated 25.4.1991, and another dated 11.5.1992, were forwarded to the Director of School Education. But no action was taken on the basis of the order passed by this Court on December 14, 1990. Thereafter, a contempt application was filed for violation of the said order passed by this Court and ultimately the contempt application was disposed of on June 22, 1992, by this Court after recording the assurance given by the opposite party/contemner that the said authority shall sanction ten posts forthwith. When the contempt application came up for hearing on June 22, 1992, a memo. No. 872-GA dated April 3, 1992, was produced before this Court wherein it was found that the ten posts were sanctioned and the school authorities were directed to fill up the said posts within six months from the date of the said memo. For the purpose of filling up the said posts, appropriate directions were passed by the Court and in the said order, it was recorded that "with regard to the remaining posts in terms of my order, the petitioner shall make representation before the Director of School Education and the relevant department of the State of West Bengal and the said authority shall pass appropriate order accordingly". The contempt application was accordingly disposed of.

Thereafter, the petitioner filed a representation before the Opposite/ Party/Contemner dated December 21, 1992, for sanction of 22 posts. Thereafter the Opposite Party/ Contemner remained significantly silent and neither passed any order and nor communicated any decision to the petitioner.

Under such circumstances, it appears that in order to implement the order passed by this Court mentioned above a fresh writ application was filed before D.K. Basu, J., and it appears that the said writ application was not placed and the same was disposed of for non-prosecution. Liberty was however given by his Lordship to the petitioner to take steps in accordance with law.

Thereafter, this contempt application had been filed after the lapse of time as prescribed u/s 20 of the Contempt of Courts Act. I have, already overruled and held that this contempt order is maintainable. The Opposite Party/Contemner filed an affidavit-in-opposition and the affidavit-in-opposition apart from taking the point of limitation and the Opposite Party/Contemner at the very outset tendered unqualified apology if the authority has unknowingly done anything which amounts to contempt of court. In the same affidavit-in-opposition, the Opposite Party/ Contemner had not said that the said authority had taken any decision and communicated the same to the petitioner, but had pleaded that if the Government was compelled to create five additional posts of Assistant Teachers in respect of the school concerned in that event that will be misuse of public money without any purpose. Besides quota of additional posts received from the Finance Department to the Education Department had been exhausted a long ago and there was quota of additional posts available to the Directorate. It was further stated that the said affidavit was affirmed on March 18, 1994, and it was stated that within that financial year it would not be possible for the Government to sanction any additional expenditure for creation of additional posts. In the said affidavit-in-opposition. the Opposite Party/Contemner had taken the pleas and pretext for contending that the Opposite Party/Contemner had not committed any contempt and the contempt application was not maintainable.

It appears that the Opposite Party/Contemner had not carried out the portion of the order dated June 22, 1992, under which the Opposite Party/Contemner was to pass an appropriate order on the basis of the representation filed by the petitioner; the petitioner has filed the representation, but the Opposite Party /Contemner had not passed any order in the matter. The statement made in the affidavit-in-opposition as defence against contempt proceedings cannot be construed to be an order passed as required under the order dated June 22, 1992.

Further, the plea taken by the Opposite Party/Contemner, even if it is correct that in that financial year it was not possible to create additional post because of several restrictions, the Opposite Party/ Contemner had not communicated, any reason and/or ground for refusal to sanction. In this case, this Court had merely directed the said respondents to pass appropriate order on the representation filed by the petitioner. The representation had been tiled, but no order has been passed. Technically, speaking, the Opposite Party/Contemner has violated the order. But in the affidavit-in-opposition, several stands have been taken under which it appears that it was not possible to pass any order for sanctioning of the posts. The court has not directed to sanction the posts. After ten posts were sanctioned, this Court directed to dispose of the representation in which prayer was made for sanctioning of 22 posts and the said contemner had only to consider the said representation in the light of the representation and/or the policies and principles of the State Government.

It appears that the Opposite Party/Contemner had not correctly appreciated the order passed by this Court and accordingly there had been failure to discharge his duties. The court had not directed the authorities to sanction the posts, but directed to consider the representation made for sanctioning of the posts and this order read with the earlier order passed on December 14, 1990, it would be dear that such a prayer has to be considered in accordance with the principles and policies of the Government in this behalf.

this Court was that the court ordinarily cannot direct creation and/or sanction posts which is exclusively within the domain of the administration. But the primary duty of the Opposite Party/ Contemner is to consider and pass an order and that has not been done. Accordingly, I do not propose to hold that the Opposite Party/ Contemner has wilfully violated the order and as such the question of imposing punishment in the peculiar facts and circumstances of this case does not and cannot arise, but the said authority is hereby directed to consider the said representation that was filed as far back as on 23.12.1992, in the light of the present facts and circumstances of this case and/or the policy and the principle of the Government in this behalf, taking into consideration all other facts-relevant for the purpose of creation of post and pass an appropriate order and communicate, the same to the petitioners within a period of six weeks from today. The contempt rule is thus disposed of.

The contempt matter disposed of with observations and directions as above.