Farhana Khanam vs Preetom Saikia
2021 Latest Caselaw 2698 Gua

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GAHC010135512021




                         THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : Cont.App.(C)/1/2021

         FARHANA KHANAM
         W/O- LATE MD. MONZUR AHMED KHAN, R/O- TAKIPUR, P.O.
         KAYASTHAGRAM, DIST.- KARIMGANJ, ASSAM



         VERSUS

         PREETOM SAIKIA, IAS AND 3 ORS
         THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
         SECONDARY EDUCATION DEPARTMENT, DISPUR, GUWAHATI-06.

         2:SHYAM JAGANATHAN
          IAS

          THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
          FINANCE DEPARTMENT
          DISPUR
          GUWAHATI-06.

         3:GULJARI LAL
          IAS

          ACCOUNTANT GENERAL ( A AND E)
          ASSAM
          MAIDAMGAON
          BELTOLA
          GHY-29.

         4:PHANINDRA JIDUNG
         AES
         THE DIRECTOR OF SECONDARY EDUCATION
         ASSAM
          KAHILIPARA
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              GUWAHATI-19

Advocate for the Petitioner   : MR. M KHAN

Advocate for the Respondent :




                                    BEFORE
                         HONOURABLE THE CHIEF JUSTICE
                     HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                        ORDER

Date : 08.11.2021

Heard Mr. M. Khan, learned counsel for the appellant. This is an appeal filed by the appellant under Section 19 of the Contempt of Courts Act, 1971. According to the appellant, by order dated 02.11.2018 passed by the learned Single Judge in WP(C) No.8025/2015, certain monetary benefits were granted to the appellant in which there was a clear cut direction as well to grant the same with interest @ 6% per annum. This order was not complied by the concerned authority and the appellant was thereafter constrained to file a contempt case being Cont. Case (C) No.444/2019 before this Court.

In the contempt proceeding before the learned Single Judge, an order of the State Government was shown by the learned counsel for the other side in order to convince the Court that the order of the learned Single Judge dated 02.11.2018 passed in WP(C) No.8025/2015 had actually been complied with. In view of the above submission, the learned Single Judge had closed the contempt proceeding.

According to the appellant, since the order on which reliance was placed by the other side had never been complied with and the order of the learned Single Judge passed in Cont. Case (C) No.444/2019 was never complied with, Page No.# 3/5

there was deliberate and willful disobedience of the order dated 28.07.2021. Consequently, he has now filed the contempt appeal challenging the order dated 28.07.2021 passed by the learned Single Judge in Cont. Case (C) No.444/2019.

Section 19 of the Contempt of Courts Act reads as under:-

"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.

(2) Pending any appeal, the appellate Court may order that--

(a) the execution of the punishment or order appealed against be suspended;

(b) if the appellant is in confinement, he be released on bail; and

(c) the appeal be heard notwithstanding that the appellant has not purged his contempt.

(3) Where any person aggrieved by any order against which an appeal may be filed satisfies the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by sub-section (2).

(4) An appeal under sub-section (1) shall be filed--

(a) in the case of an appeal to a Bench of the High Court, within thirty days;

(b) in the case of an appeal to the Supreme Court, within sixty days, from the date of the order appealed against."

An appeal from the order of the learned Single Judge before a Division Page No.# 4/5

Bench lies only when the Court had exercised its powers of contempt by passing an order of punishment. No such order has been passed in the present case. To the contrary, the contempt proceedings have been closed. Once the contempt proceedings have been closed, it is not appealable under Section 19 before a Division Bench. Therefore, this appeal filed by the appellant is totally misconceived.

All the same, purely in the interest of justice, we may also observe that considering the peculiar facts and circumstances of the case, it may not be a case where the appellant is without any remedy.

A similar matter was considered by this Court as far back as in the year 2001 in the case of Sashi Prakash -Vs- Government Pensioners Association , reported in (2001) 3 GLR 569, where the Division Bench had held that the remedy in such a case would be to file a review before the learned Single Judge as these would be the inherent powers of the Court under Article 226 read with Article 215 of the Constitution of India. The relevant portion in Paragraph 11 of the said judgment reads as under:

"11. This takes us to the next question involved in appeal namely, whether in the absence of any specific provision enabling the exercise of the power of review, it was competent for the learned Single Judge to recall the earlier order dated 14.12.1999 and direct a denovo hearing, of the case in question. There is no dispute that the power of review has not been expressly conferred by the statute i.e. by the Contempt of Courts Act, 1971. The learned Single Judge while passing the impugned order dated 11.08.2000 was aware of the said limitation. Nevertheless, he proceeded to exercise jurisdiction and recalled the earlier order dated 14.12.1999 by invoking powers conferred under Article 215 of the Constitution. We have carefully perused the relevant part of the judgment of the learned Single Judge dated 11.08.2000 dealing with this aspect of the matter. We have also perused the judgment of the Apex Court in the case of M.m. Thomas V. State of Kerala, also reported in AIR 2000 SC 540 relied upon by the learned Single Judge. The ratio of judgment in the case of M.M. Thomas (supra), Page No.# 5/5

as we have understood, is that dehors the power of review conferred by the statute, the High Court as a Court of record exercising plenary jurisdiction would always have an inherent power to review its earlier orders under the provisions of Article 215 of the Constitution. We are, therefore, in respectful agreement with the view of the learned Single Judge and we also draw assistance in coming to our aforesaid conclusion on the ratio of law laid down by the Apex Court in the case of Shivdeo Singh and others V. State of Punjab and others, reported in AIR 1963 SC 1909. To confer on the High Court the power of review in a proceeding under Article 226 of the Constitution on the ground that such a power of review is inherent in the High Court being a Court of plenary jurisdiction and to deny and/or refuse a similar power in a case of Contempt Proceeding under Article 215 of the Constitution would in our view, be wholly inconsistent. In the backdrop of the above discussion, we are of the view that acceptance of the argument advanced by the learned Advocate General to the effect that the order dated 14.12.1999 having dropped the contempt proceeding the power under Article 215 could not have been exercised to review the said order as the power vested by Article 215 is a power only to punish for contempt, would lead to in wholly incongruous and undesired effects. The argument, therefore, is rejected."

In view of the above position, and with our observations, we dismiss the present appeal.

                  JUDGE                           CHIEF JUSTICE



Comparing Assistant