Chandra Mohan Jha and Another vs Awadh Kishore Sharma and Others

Shashank Kr. Singh, J.—The instant appeal has been filed under Clause-10 of the Letters Patent of the Patna High Court against the order 11.7.95 passed by a learned single Judge in an application filed under Article 215 of the Constitution of India bearing M.J.C. No. 933/94 (1995(2) PLJR 632).

Respondent No. 1 in the instant appeal filed a writ application being C.W.J.C. No. 11754/92 (1996 (1) PLJR 128) for issuance of a writ order/direction commanding the Respondents to the writ application for refund of the dearness allowance deducted from the salaries of the employees from 1.1.1979 to 28.2.1990, for payment of Group Saving General Life Insurance Policy monthly premium from 1990, the Group gratuity premium of L.I.C. from 1990, the interim relief from 1.1.1986 instead of 1.1.1988, the enhanced allowance of House Rent from 1.12.1986 instead of 30.6.92 and further arrears of salary on the basis of 5th Pay Revision from 1.3.1989 along with dearness allowance from July, 1991.

The aforesaid writ application was contested by the Respondent-Corporation by filing a counter affidavit on behalf of the Chairman as well as the Managing Director of the Corporation. No counter-affidavit was filed on behalf of the State of Bihar and/or Agriculture Production Commissioner or the, Finance Commissioner, who were Respondent Nos. 1, 2 and 5 respectively in the said application inspite of sufficient opportunity granted by the Court and their being represented through Counsel.

4 In the return filed on behalf of the Corporation, the claim regarding payment of salary up-to-date, deferred dearness allowance from 1.3.79 to 28.2.90 and group saving linked Insurance from 1990 onwards were not disputed. Similarly, with regard to other claims viz. enhanced house rent allowance, dearness allowance and interim relief were also not disputed. The Corporation disputed only with regard to the date of implementation. It was also not disputed that no salary had been paid right from November 1992 to the employees of the Corporation.

The only stand taken by the Corporation for not discharging its legal duty and obligation by making payment of the lawful dues to the employees of the Corporation was non-availability of funds.

It was submitted on behalf of the Corporation that the Corporation had been taking all possible steps to apprise the State Government with regard to its financial condition and for grant of fund but till today no fund could be made available by the State Government and as such, the Corporation is not in a position to make payment of the aforesaid dues to its employees.

The learned single Judge by order dated 19.4.1994 allowed the aforesaid writ application and directed the State of Bihar Agriculture Production Commissioner and the Finance Commissioner, Respondent Nos. 1, 2 and 5 respectively to the said writ application to forthwith release the fund, if there is any liability of the State for the same to the Corporation so that lawful dues payable to the employees of the Corporation could be made. Further this Court directed the Chairman and the Managing Director of the Corporation, Respondent Nos. 3 and 4 to the said writ application to any all the lawful dues payable to the Corporation within one month from the date of judgment/order.

The writ Petitioner, thereafter, filed a representation along with a copy of the aforesaid judgment and order for necessary compliance. When no action was taken by the Respondent State or Bihar and its Officers the writ Petitioners again moved this Court by filing an application under Article 215 of tile Constitution of India for initiating a proceeding for contempt against the opposite parties for disobedience of the order passed by this Court in the aforesaid writ application bearing C.W.J.C. No. 11754/92. which was registered as M.J.C. No. 933 of 1994.

The learned Single Judge, after hearing the Petitioners of the said contempt application issued notices to the opposite parties of the said contempt application. Show cause was filed on behalf of the opposite parties.

After hearing the Counsel for the parties, the learned single Judge under order dated 11th July, 1995 held that the State Authorities did not act fairly and their intention was not to comply with the direction of this Court passed in the aforesaid writ application, which amounts to a gross contempt However, in the facts and circumstances of the case, the learned Single Judge by way of last chance gave opportunity to the contemner, Sri C.M. Jha, who was opposite party No. 1 (Appellant No. 1 herein), Sachchida Nand Sinha. who was opp. party No. 2 (Appellant No. 2 herein) and the other opposite parties to purge themselves of the contempt by complying with the direction given in the said writ application and to report the same within a week failing which necessary order imposing punishment would be based against them. Accordingly, the learned Single Judge adjourned the aforesaid M.J.C. application to 18th of July, 1995 and directed all the contemnors to appear in person in Court.

Aggrieved by the aforesaid order dated 11th of July, 1995. opp. party Nos. 1 and 2 of the said contempt application preferred the instant appeal.

Originally the Appellants filed the instant appeal u/s 19 of the Contempt of Courts Act, 1971, which was registered as Contempt Appeal No. 1280/95. Subsequently they amended the memorandum of appeal by converting the aforesaid contempt appeal as a letters patent appeal under Clause 10 of the Letters Patent of Patria High Court. Accordingly Letters Patent Appeal No. 674/95 was registered.

At the time of hearing of the instant appeal, an objection was raised on behalf of the Respondents that the present appeal is not maintainable and, as such the same is fit to be dismissed on that count alone. The aforesaid objection regarding non-maintainability of the appeal was contested by the Appellants. According to the learned Counsel appearing on behalf of the Appellants, the appeal was maintainable.

Thus the first question to be decided is as to whether this appeal in maintainable or not. In other words the question is as to whether the appeal lay against the order dated filth July, 1995 in the said M.J.C. 933/94.

The instant appeal has been filed under Clause 10 to the Letters Patent of the Patna High Court and not an appeal u/s 19 of the Contempt of Courts Act but we are conscious of the view that it is by now well-known that leveling of a petition is not very relevant. It is to be seen, as to whether the appeal is maintainable either under Clause 10 of Letters Patent Jurisdiction or u/s 19 of the Contempt of Court Act.

First I take up as to whether an appeal lay u/s 19 of Sub-section (1) of the Contempt of Courts Act against the aforesaid order dated 11th of July, 1995 or not. Sub-section (1) of Section 19 provides for an appeal against any order or decision which runs thus:

19(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 Judge 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 Judical Commissioner in any Union territory, such appeal shall lie to the Supreme Court.

From perusal of the aforesaid provision, it is manifest that an appeal lies u/s 19(1) of the Act against an order or decision of a High Court concluding the contempt proceeding. The concluding stage is the stage contemplated by Clause (4) of Section 14 of the said Act where the Court exercises the jurisdiction to make an order for punishment or discharge of the present accused for contempt. It is to that stage of the exercise of jurisdiction that Sub-section (1) of Section 19 refers.

Sub-section (1) of Section 19 of the Contempt of Courts Act provides for an appeal against a decision of the High Court in exercise of its jurisdiction to punish for contempt. Consequently, an appeal would lie only when the jurisdiction to punish for contempt has been exercised and the contemnor has been punished. The aforesaid view finds support from yet another angle. Sub-section (2) of Section 19 of the Act gives power to the appellate court to stay the execution and suspend the sentence. The contingency enumerated under Sub-section (2) of Section 19 of the Act would only arise in case where a person has been found guilty of contempt and has been punished.

Prior to final conclusion of the proceeding, in our opinion an appeal is not maintainable u/s 19(1) of the said Act.

The learned Single Judge by the impugned order has only held that the contemnors did not act fairly and their intention was not to comply with the direction of this Court given in the said writ application, which amounts to a gross contempt, but at the same time and by the same order, the learned Single Judge adjourned the matter to 18th July, 1995 and gave opportunity to the contemnors to purge the contempt by complying with the said direction of this Court in the said writ application.

From a plain reading of last three paragraphs of the impugned order, it is manifest that the learned Single Judge till then has not exercised jurisdiction to make an order for punishment or discharge of the present accused of contempt. That stage was still to come. Since the same has not reached, in my opinion, an appeal u/s 19(1) of the Act will not lie.

A Division Bench of the Allahabad High Court in the case of Kuldip Narain Lal Vs. Mahendra Pal Jain and Another, held that an appeal would lie only when the jurisdiction to punish for contempt has been exercised and the contemnor has been punished. Similar is the view of the Punjab and Haryana High Court in the case of R.P. Bhardwaj and Anr. v. Smt. Kiran Agrawal and Ors. reported in 1989 Cri.L.W. J 481. In the case of L.D. Khanna and Others Vs. Chohan Huhtamaki (India) Pvt. Ltd., R.S. Pathak, the then Chief Justice of Himachal Pradesh High Court also held the same view. In Barada Kanta Mishra Vs. Orissa High Court, the Supreme Court held that only those orders or decisions in which some point is decided or finding is given in the exercise of jurisdiction by the High Court to punish for contempt are appellate u/s 19 of the Act.

In view of the several judicial pronouncements I hold that an appeal u/s 19(1) of the Act is not maintainable against the impugned order.

The next point as to whether this appeal is maintainable under Clause 10 of the Letters Patent Jurisdiction or not. Clause 10 of the Letters Patent of Patna High Court runs thus:

And we do further ordain that an appeal shall lie to the said High Court of Judicature at Patna from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject the superintendence of the said High Court, and not being on order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court. Pursuant to Section 108 of the Government of India Act, made on or after the first day of February, One thousand nine hundred and twenty nine, in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal but, that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to us Our Heirs or Successors in our or Their Privy Council, as hereinafter provided.

From a plain reading of the aforesaid Clause 10 of the Letters Patent of the High Court which is similar to Clause-15 of the Letters Patent of the Calcutta, Bombay and Madras High Court, it will be manifest that an appeal lay only it the order in question can be held to be judgment within the meaning of Clause-10 of the Letters Patent. Thus it is be seen as to whether the impugned order can be said to be judgment within the meaning of Clause-10 of the Letters Patent of this Court or not.

There are numerous decisions showing a great divergence of judicial opinion on the meaning and interpretation of the word ''judgment'' in different clauses of the Letters Patent of the High Court in one of the leading cases. The Justices of the Peace for the Town of Calcutta v. The Oriental Gas Company Limited (17, Sutherland-364), Couch Chief Justice held that the judgment in Clause-15 means a decision which affects the merits of the question between the parties determining some right of liability.

Subsequently in another celebrated decision rendered by Sri Arnold White Chief Justice, in the case of Tulze Ram Row v. Algoppa Chettiar reported in ILR Mad 1 held as follows:

The test seems to me to be in what is the form of the adjudication but what is its effect in the suit or proceeding in which it is made. If its effect, whatever its form may be and what ever be the nature of the application in which it is made is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned or if it, affected if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause and adjudication on an application, which is nothing before than a step towards, obtaining a final adjudication, in the suit is not in my opinion, a judgment within the meaning of letters patent.

Sir John Edge in the lease of AIR 1925 155 (Privy Council) held that, the term judgment in the Letters Patent of the High Court means in civil cases a decree and in judgment in the Ordinary sense. Similarly, Sir Arthur Page, Chief Justice of the Rangoon High Court in the case of Daya Bhai Jeevan Das v. A.M.M. Murugappa Chettiar reported in AIR 1935 Rang 267 (F.B.) observed as follows:

I am of the view that in the Letters Patent of the High Court the word ''judgment'' means and is a decree in a suit by which the rights of the parties at issue in the suit ate determined.

Although the true interpretation of the word ''judgment'' again arose for consideration in the case of Asrumati Debi Vs. Kumar Rupendra Deb Raikot and Others, but the Supreme Court refrained from giving an exhaustive definition of the word ''judgment'' as used in letters patent.

This Court in the case of Gobind Lal Nakphopha Vs. The Administrator-General of Bihar and Others, agreed with the view referred to by Sir Arthur Page. Chief Justice of Rangoon High Court in the case reported in AIR 1935 (supra). This Court held that the term of ''judgment'' in the Letters Patent Appeal of the High Court means decree and not order.

The term judgment has been defined in the CPC but that definition does not apply to the word as occurring in Letters Patent. The language of Letters Patent is not the language of the Indian Legislature but the language of English lawyer as it was used amongst them.

Again in the case of State of Uttar Pradesh and Ors. v. Dr. Vijay Anand Maharaj reported in AIR 1967 S.C. 946 the question arose about true scope of the expression judgment occurring under Clause-15 of the Letters Patent in the High Court of Calcutta, Bombay and Madras. The Supreme Court after considering various judgments of different Courts held that the definition given by the Madras High Court as reported in ILR 1935 Mad (1) (supra) is wider than that given by the Calcutta High Court in the case reported in 8. Bengal 433 (supra). However, the Supreme Court refrained from reconciling the said decision or to give a definition of its own.

In my opinion the test laid down by the Madras High Court as well as the Rangoon High Court and the Privy council referred to above is correct interpretation of the word judgment'' occurring in Clause-10 of the Letters Patent of this Court.

Keeping in view the aforesaid decision correct scope and definition of the word ''judgment'' it is to be seen as to whether the impugned order is a judgment within the aforesaid meaning of Clause-10 of the Letters Patent of this Court or not.

On a plain reading of the last three paragraphs of the impugned order, it cannot be said that the effect of the order in the said proceeding is to put an end to the said proceeding. So far the Court passing the impugned order is concerned, Over and above the effect of such order is also not that the said proceeding will end if the impugned order is not complied with. The said order cannot be said to be a decree which finally concludes/terminates the proceeding.

Analysing the true nature of the impugned order vis-a-vis the lest laid down by the Madras High Court, in my opinion, the impugned order cannot be said to be a judgment within the meaning of word ''judgment'' as occurs under Clause 10 of the Letters Patent of the Court.

Consequently, the Letters Patent appeal is not maintainable against the impugned order.

Learned Counsel for the Appellants to buttress his submission that the appeal under Clause 10 of the Letters Patent is maintainable has referred to decisions of the Supreme Court reported in Purshotam Dass Goel Vs. Hon''ble Mr. B.S. Dhillon and Others, Shri Radhey Shyam Vs. Shyam Behari Singh,

In the case of Purshotam Dass Goel Vs. Hon''ble Mr. B.S. Dhillon and Others, the Supreme Court held that under Sub-section (1) of Section 10 of the Act, an appeal shall lie to the Supreme Court as a matter of right for any order of decision of a Bench of the High Court, if the order has been made in the exercise of its jurisdiction to punish for the contempt.

I have already held earlier that since by the impugned order, the learned single Judge has not exercised his jurisdiction to punish or contempt, an appeal u/s 19(1) of the Act is not maintainable. In my view the aforesaid decision does not help the Appellants.

33 The another decision reported in Shri Radhey Shyam Vs. Shyam Behari Singh, in which the scope of an order under Order-21 Rule 90 was the subject matter of consideration and in my view the ratio decidendi has got no bearing so far as the instant matter is concerned.

The other two decisions relied upon by the learned Counsel for the Appellant, i.e. Golcha Investment (P) Ltd. Vs. Shanti Chandra Barna, were regarding orders arising out of Companies Act and in that connection the Supreme Court held in those cases that the orders were appellable in the facts and, circumstances of the case. None of the afforested decisions help the Appellants.

In view of the aforesaid finding, I am of the view that the impugned order is not a judgment and, as such, the appeal filed under Clause 10 of the Letters Patent of the Patna High Court is not maintainable.

Accordingly, I hold that this appeal is not maintainable and the same is dismissed. Since I have held that the appeal is not maintainable. it is not necessary for me to give any opinion on the merit of the case.

It is needless to say that the interim order passed on 14.7.95 shall automatically stand vacated.

As pursuant to the order of the learned Single Judge dated 11th July, 1995 the Appellants were directed to appear in person in Court on 18th July, 1995 as such let M.J.C. No. 933/94 be placed before the learned Single Judge for passing appropriate orders.

B.L. Yadav, J.

I agree.