Chattisgarh High Court
Rajat Bansal, Commissioner vs Dr. Ashutosh Jha on 1 December, 2021
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
M.A. No. 23 of 2020
Rajat Bhansal, Commissioner (Presently posted as Collector, Dhamtari),
Municipal Corporation, Raipur (C.G.)
---- Appellant
Versus
1. Dr. Ashutosh Jha, S/o Shri Bansh Narayan Jha, aged about 45 years
(now 52 years) presently posted and working as Shiksha Karmi Grade-II,
at Dr. Shyama Prasad Mukharjee, Government Higher Secondary
School, WRS Colony, Raipur (C.G.)
2. Ashok Narayan, District Education Officer of Municipal Corporation,
Raipur (C.G.)
---- Respondents
(Cause-title taken from Case Information System)
For Appellant : Mr. H.B. Agrawal, Senior Advocate.
For Respondent No. 1 : Ms. Smita Jha, Advocate.
For Respondent No. 2 : Mr. V.V.S. Murthy, Senior Advocate.
Hon'ble Shri Arup Kumar Goswami, Chief Justice
Hon'ble Shri Justice N.K. Chandravanshi, Judge
Order on Board
Per Arup Kumar Goswami, Chief Justice
01.12.2021
Heard Mr. H.B. Agrawal, learned senior counsel for the appellant. Also
heard Ms. Smita Jha, learned counsel for respondent No.1 and Mr. V.V.S.
Murthy, learned senior counsel appearing for respondent No. 2.
2. This appeal under Section 19 of the Contempt of Courts Act, 1971 for
short, Act of 1971, is presented against an order dated 26.02.2020 passed in
Contempt Case (C) No. 387 of 2018.
3. The appeal was filed on 16.03.2020.
4. I.A. No. 2 of 2021 is an application for amendment of the memo of
appeal, whereby, contending that order dated 26.02.2020 has been
superseded by another order dated 18.10.2021, the appellant has, amongst
others, sought to assail the order dated 18.10.2021.
5. The order dated 26.02.2020, reads as follows:
"Ms. Smita Jha, Advocate for the petitioner.
Shri H.B. Agrawal, Sr. Advocate along with Ms. Richa
Dwivedi, Advocate for respondent No.1.
Shri Vipin Tiwari, Advocate for respondent No. 2.
The reply submitted by the respondent No.1 is totally
unsatisfactory in the light of the directions given by this
court vide order dated 28.02.2017 in WPS No. 7481 of
2010.
From the records obtained under the Right to
Information Act which has been produced by the
petitioner, it clearly reflects that a post of Sanskrit
Teacher fell vacant on the retirement of one Shri G.P.
Budhouliya from the school of respondent-corporation at
Katora Talab Raipur. Similarly, there was a vacant post in
the School at Atari, Raipur, even before the date on which
the DPC that was held in November, 2018 in compliance
of the order dated 28.02.2017.
In view of the aforesaid informations obtained under
the RTI, the reply submitted by the respondent No.1 that
for want of vacant post of Teacher Sanskrit the case of
the petitioner was not considered, appears to be
apparently a wrong submission. Therefore, this court
prima facie is of the opinion that the affidavit is without
due verification of facts. The respondent No.1 appears to
have been misleading the court.
Accordingly, on the next date of hearing, the
respondents are directed to remain present before the
court for framing of charges for Contempt of Court.
List this case on 31.03.2020."
6. In the order dated 18.10.2021, there is no reference to the order dated
26.02.2020, which, according to the appellant was superseded.
7. If the appellant is aggrieved by order dated 18.10.2021, that may give
rise to a fresh cause of action and therefore, we are not inclined to allow
amendment, as prayed for. In that view of the matter, I.A. No. 2 of 2021 is
dismissed.
8. I.A. No. 3 of 2021 is an application for exemption of appearance on
03.12.2021 before the learned Single Judge. Since direction for personal
appearance was given by order dated 18.10.2021 and since prayer for
challenging the same in this appeal has been rejected, we decline to pass any
order in I.A. No. 3 of 2021. We, however, reserve liberty to the appellant to
pursue such remedy as may be available in law, if so advised. I.A. No. 3 of
2021 stands disposed of accordingly.
9. Mr. Agrawal submits that the content of the order dated 26.02.2020
would amply demonstrate that the learned Single Judge has concluded that the
appellant is guilty of contempt and therefore, in terms of Section 19 of Act of
1971, this appeal is maintainable in law. In support of his contention Mr.
Agrawal has placed reliance on a decision of the Hon'ble Supreme Court in the
case of Modi Telefibres Ltd. & Others v. Sujit Kumar Choudhary & Others ,
reported in (2005) 7 SCC 40.
10. Ms. Jha submits that the contentions advanced by Mr. Agrawal is
not tenable as no conclusion has been recorded by the learned Single Judge
that appellant is guilty of contempt and therefore, this appeal is not
maintainable. She places reliance on a judgment rendered by the Hon'ble
Supreme Court in the case of Midnapore Peoples' Coop. Bank Ltd. & Others v.
Chunilal Nanda & Others, reported in (2006) 5 SCC 399.
11. We have considered the submissions of the learned counsel for the
parties and have perused the materials on record.
12. Section 19(1) of the Act of 1971 provides as follows:
"19. Appeals. - (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 Judges 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 Judicial Commissioner
in any Union territory, such appeal shall lie to the Supreme
Court."
13. In D.N. Taneja v. Bhajan Lal, reported in (1988) 3 SCC 26, the Hon'ble
Supreme Court had observed as follows:
"8. The right of appeal will be available under sub-section
(1) of Section 19 only against any decision or order of a
High Court passed in the exercise of its jurisdiction to
punish for contempt. In this connection, it is pertinent to
refer to the provision of Article 215 of the Constitution
which provides that 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. Article
215 confers on the High Court the power to punish for
contempt of itself. In other words, the High Court derives
its jurisdiction to punish for contempt from Article 215 of
the Constitution. As has been noticed earlier, an appeal
will lie under Section 19(1) of the Act only when the High
Court makes an order or decision in exercise of its
jurisdiction to punish for contempt. It is submitted on
behalf of the respondent and, in our opinion rightly, that
the High Court exercises its jurisdiction or power as
conferred on it by Article 215 of the Constitution when it
imposes a punishment for contempt. When the High Court
does not impose any punishment on the alleged
contemnor, the High Court does not exercise its
jurisdiction or power to punish for contempt. The
jurisdiction of the High Court is to punish. When no
punishment is imposed by the High Court, it is difficult to
say that the High Court has exercised its jurisdiction or
power as conferred on it by Article 215 of the
Constitution."
14. A perusal of the above would go to show that the right of appeal is
available under Section 19(1) of the Act of 1971 only against any decision or
order of the High Court passed in the exercise of its jurisdiction to punish the
contemnor.
15. Right of appeal is a creature of the statute and the question whether
there is a right of appeal or not will have to be considered on an interpretation
of the provision of the statute and not on the ground of propriety or any other
consideration.
16. In Modi Telefibres Ltd. (supra), for the alleged non-compliance with the
award of the Labour Court in favour of the respondent-workmen, proceedings
under the Act of 1971 were initiated. The learned Single Judge had clearly
recorded his conclusion that all dues of the workmen including variable
dearness allowances have not been paid by the appellant-employer and thus
contempt was committed, and accordingly, direction was issued to the officer of
the employer to remain present with bank drafts to be paid to the workmen.
Challenging the order, an appeal was preferred before the Division Bench of
the High Court, which dismissed the appeal on the ground that the matter
arising out of the contempt proceedings was still pending before the learned
Single Judge.
17. Having regard to the nature of the order, which was put to challenge in
appeal before the Division Bench of the High Court, the Hon'ble Supreme
Court held that such an order could not have been considered or treated as an
interlocutory order and the right of appeal could not have been denied to the
appellant-employer only on the ground that the learned Single Judge had
adjourned the proceedings to enable the alleged contemnor to purge the
contempt or else for deciding the quantum of punishment.
18. In Midnapore Peoples' Coop. Bank Ltd. (supra), the Hon'ble Supreme
Court at paragraph 11 held as follows:
"11. The position emerging from these decisions, in regard
to appeals against orders in contempt proceedings may
be summarised 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. 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 proceedings 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 the 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).
The first point is answered accordingly"
19. A perusal of the order dated 26.02.2020 would go to show that the
appellant was directed to remain present before the Court for the purpose of
framing of charge only. It is also evident that the Court had recorded only a
prima facie opinion that the affidavit was filed without verification of the facts
and thereby appearing to mislead the Court.
20. In that view of the matter, we hold that this appeal is not maintainable
and accordingly, the same is dismissed.
21. At this juncture, Mr. Agrawal submits that he may be permitted to assail
the order dated 18.10.2021 in an appropriate proceeding.
22. Without expressing any opinion on merits, we reserve liberty to the
appellant to pursue remedy, if available, in accordance with law.
Sd/- Sd/-
(Arup Kumar Goswami) (N.K. Chandravanshi)
Chief Justice Judge
Brijmohan
