Union Territory of J&K & ors vs Jai Singh & Ors

Sindhu Sharma, J

This Letters Patent Appealis directed against the order passed by the learned Single Judge on 29.01.2024, (hereinafter referred to as ‘impugned order’), in a contempt petition, i.e., CCSW No. 479/2013,arising out of a judgment dated 02.05.2013 passed in SWP No. 1161/2012, titled Jai Singh & Ors. v. Mohd. Afzal &ors.

By way of the impugned order, the respondents were directed to place the matter before the Administrative Council for taking a fresh decision in the matter in strict compliance of the judgment passed in SWP No. 1161/2012 dated 02.05.2013 within a period of eight weeks. The appellants seek setting aside of the impugned order on the grounds taken in the memo of appeal.

The respondents had approached this Court seeking regularization of the petitioners as helpers on permanent basis from the date of completion of seven years services in the Department in terms of SRO 64 of 1994 and on the analogy of similarly circumstances persons.This writ petition (SWP No. 1161/2012), upon consideration, came to be disposed of vide judgment dated 02.05.2013, in the following manner:-

“………disposed  of  with  a  direction  to  the  respondents  to expedite the cases of the petitioners for getting sanction for regularization of their services as per recommendation already made ot the Finance Department (Annexure-D) and pass appropriate orders within a period of two months from the date, copy of this order is served upon them……..”

The judgment dated 02.05.2013 was not complied, this constrained the respondents to file a contempt petition bearing CPSW No. 479/2013 seeking implementation of the judgment.

In the compliance report filed by the department, it was submitted that the case of the respondents was considered by the Empowered Committee and rejected as their case did not fall within their mandate as they were engaged as casual labourers in the Forest Department. The respondents had resisted the stand of the Forest Department by placing on record several documents to indicate that the Empowered Committee had cleared several cases of similar nature for regularization. The stand of the department was not accepted by this Court and this Court, accordingly, vide order dated 28.01.2020 directed personal appearance of the members of the Empowered Committee.

The order dated 28.01.2020 was assailed by the respondents-department before the Hon’ble Supreme Court in Civil Appeal No. 2092/2022 and the appeal was disposed of vide order dated 21.03.2022 by providing that this Court will not insist personal appearance of the officers but proceed to consider the stand of the respondents that with the rejection of the claim of the petitioners by the empowered committee, there was no occasion to initiate any contempt proceedings.

The contempt petition was taken up for consideration on 29.01.2024 and following directions were passed by the Court:-

Be that as it may, it would serve the interest of justice if the respondents are directed to the respondents to place the entire material along with this order before the Administrative Council to take a fresh decision in the matter in strict compliance with the judgment passed by this Court on 02.05.2013. The Administrative Council which is a representative body of the Union Territory is expected to act as model employer and take a decision having regard to the fact that there is ample evidence on record which is not disputed by the respondents that the similarly circumstanced persons have already been regularized.

The respondents are, therefore, directed to place the matter before the Administrative Council for taking a fresh decision in the matter in the light of order passed by this Court on 02.05.2013 within a period of eight weeks.

The appellants have inter alia challenged the impugned order on the ground that it is vitiated by the fact that it is a well-settled position of law that the contempt Court cannot go beyond the scope of contempt by making any addition or alteration to the original direction passed in the writ petition.

The learned counsel for the respondents had raised a preliminary objection as regards the maintainability of the LPA in light of the Apex Court judgments as also the judgments of this Court, therefore, the LPA was heard on the maintainability point only in the first instance.

The moot question is whether the order dated 29.01.2024 decides the lis between the parties or adjudicates the rights of the parties so as to be construed as a judgment to maintain the Letters Patent Appeal and also whether the appeal under Section 19 of the Contempt of Courts’ Act is maintainable.

In a decision rendered in case titled “State of J&K and Others v. Muhammad Sultan Mir” in LPASW No. 2/2018 decided on 09.02.2018, the Hon’ble High Court of J&K and Ladakh while dealing with the issue of maintainability of the appeal under Section 19(1) of the Act and Letters Patent Appeal under Clause 12 of the Letters Patent, in paragraph Nos. 7 & 8 has held as under:-

“7. The issue with regard to the maintainability of the appeal under Section 19(1) of the Act and letters patent appeal under Clause 12 of the Letters Patent against an order of the Contempt Court issuing Rule for contempt has already been decided by this Court in LPASW No.267/2017 (State of J&K and others v. Mohammad Tayoub Leharwal and anr.) decided on 31.01.2018. What was held by this Court in the aforesaid judgment in paragraph Nos.5 to 9 is reproduced hereunder:-

“5. Sub Section 1(a) & (b) of Section 19 of the Act provides as under:-

“19. Appeal

(1) An appeal shall lie as of right from any order or decision of the 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 of decision is that of bench, to the Supreme Court.

From a bare perusal of Section 19(1), reproduced herein above, would indicate that right of appeal would be available only against any order or decision of the High Court in exercise of its jurisdiction to punish for contempt.

Section 94 of the Constitution of Jammu & Kashmir, which is parimateria to Article 215 of the Constitution of India, provides that the 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 or of the courts subordinate to it. That being the explicit position, appeal under Section 19(1) of the Act would lie only when High Court makes an order or decision in exercise of its jurisdiction to punish for contempt. A three-Judge Bench of the Supreme Court in the case of D.N.Taneja v. Bhajan Lal; (1988) 3 SCC 26 considered this aspect in extenso.

The same view has been reiterated by the Supreme Court in a subsequent judgment rendered in the case of Midnapore Peoples’

Coop. Bank Ltd. V. Chunilal Nanda and others; (2006) 5 SCC 399. The Supreme Court after taking note of the several decisions rendered on the scope of Section 19(1) of the Act summarized the position of law in the following manner:-

“11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarized 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. 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 CC 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, and 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, not appealable under section 19 of CC 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 connected 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 was 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).”

……………

In that view of the matter, the preliminary objection raised by the respondent with regard to the maintainability of this appeal succeeds. Accordingly, this appeal is found to be not maintainable, hence dismissed. However, before parting, we would like to observe that in response to the Rule issued, the appellants have already submitted their reply and have apparently taken a stand that the directions issued by the learned Writ Court on 01.04.2016 have been complied with and consideration order passed which would furnish fresh cause of action to the respondent to challenge the same and that no case for contempt was made out. The contempt Court is yet to decide on the aforesaid aspect. The appellants, therefore, would have ample opportunity to raise the aforesaid issue and also those which have been raised by them in this appeal, before the Contempt Court. Needless to say that the Contempt Court would consider the stand taken by the appellants and pass appropriate orders thereon as warranted under law. There shall, however, be no order as to the costs.”

Similar issue with regard to maintainability of the appeal under Section 19(1) and under the Contempt of Courts’ Act was considered in case titled “Union Territory of JK v. Shahnaza Parveen & Ors” passed in LPA No. 20/2021 decided on 24.08.2021, the Hon’ble High Court of J&K and Ladakh in paragraph Nos. 13 & 14 has held as under:-

“13. In State of J&K & Ors vs. Mohd. Tayoub Leharwal and Anr. 2018 (1) JKJ 627 (HC) a Division Bench of this court held that under Section 19 of the Contempt of Courts Act 1997 Right to Appeal is available only against an order or decision of the High Court to punish for contempt. It has further relied upon a decision of the Supreme Court in the case of Midnapore People’s Cooperative Bank Ltd. Vs. Chuni Lal Nanda 2006 (5) SCC 399 to hold that under Clause 12 of Letters Patent, an appeal would lie to the Division Bench only from the “judgment” of the learned Single Judge passed in exercise of original jurisdiction. The word “judgment” in terms of Clause 12 is undoubtedly a concept of finality in broader sense. It would either be a final judgment, a preliminary judgment or intermediary judgment or interlocutory judgment, but it should be a judgment in the sense that it decides some issue or right between the parties finally. The intermediary and interlocutory orders passed during the course of the proceedings which do not determine any right or issue between the parties cannot be said to be a “judgment”amenable to available jurisdiction of the Division Bench under Clause 12 of the Letters Patent.

In view of the above decision of the Coordinate Bench of this Court, as in the case at hand, all the orders passed in proceedings for contempt are of interlocutory nature which does not determine any right or issue between the parties finally, we are of the considered opinion that the Letters Patent Appeal under Clause 12 of the Letters Patent is not maintainable.”

In view of the above decision of the Coordinate Bench of this Court, as in the case in hand, all the orders passed in proceedings for contempt are of interlocutory nature which does not determine any right or issue between the parties finally, we are of the considered opinion that the Letters Patent Appeal under Clause-12 of the Letters Patent is not maintainable. The impugned is not the one passed by the Court in exercise of jurisdiction to punish for contempt, as such, is not maintainable in that aspect too.

In the above background, the preliminary objection raised by the learned counsel for the respondents is sustained. The appeal is held to be not maintainable and is, accordingly, dismissed.