Kerala High Court
Amod Mathew vs A.P.M Mohammed Hanish on 1 August, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
Tuesday, the 1st day of August 2023 / 10th Sravana, 1945
CONTEMPT CASE(C) NO. 789 OF 2023(S) IN WA 656/2022
PETITIONER/1ST RESPONDENT IN W.A/PETITIONER IN W.P.(C):
AMOD MATHEW, S/O. MATHEW, AGED 45 YEARS,
TEACHER, [HSS TEACHER], ST. PAUL'S HIGHER SECONDARY SCHOOL,
VALIYAKUMARAMANGALAM, MOONILAVU P.O.,
KOTTAYAM DISTRICT - 686 586.
BY ADVOCATES M/S. SHAJI THOMAS, MOHAN PULIKKAL & JEN JAISON
RESPONDENTS/APPELLANTS 1 & 2 IN W.A/RESPONDENTS 1 & 2 IN WP(C):
1. A.P.M MOHAMMED HANISH IAS, THE SECRETARY TO GOVERNMENT, GENERAL
EDUCATION (T) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695
001.
2. K. JEEVAN BABU IAS, DIRECTOR OF GENERAL EDUCATION (HIGHER
SECONDARY), HOUSING BOARD BUILDING, THIRUVANANTHAPURAM - 695 011.
BY SMT.B.VINEETHA, GOVERNMENT PLEADER
This Contempt of court case (civil) having come up for orders on
01.08.2023, the court on the same day passed the following:
P.T.O.
C.R.
P.B.SURESH KUMAR & C.S.SUDHA, JJ.
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Contempt Case (C) No.789 of 2023
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Dated this the 1st day of August, 2023
ORDER
P.B.Suresh Kumar, J.
This proceedings is instituted alleging wilful
disobedience of the direction issued by the learned Single
Judge of this Court in terms of the judgment in W.P.(C)
No.21689 of 2021, which has been affirmed by this Court in
W.A.No.656 of 2022.
2. When this matter came up for admission, this
Court entertained a doubt as to whether the doctrine of merger
can be applied absolutely to contempt proceedings, and
required the learned counsel for the petitioner to address
arguments on that point.
3. After taking time for preparation, the learned
counsel for the petitioner submitted today, placing reliance on
the decision of this court in Abin Suraj v. Joseph, 2011(3) KLT
488, that in a case where the appellate court entertains and
decides an appeal preferred against the judgment of the Single
Judge after hearing the parties on either side, the judgment of
the Single Judge merges with the decision of the appellate
court and therefore, judgment, the enforcement of which can
be sought or non-compliance of which can be complained of, is
the judgment in the appeal. According to the learned counsel,
the proceedings therefore, is perfectly in order.
4. It is seen that the question considered in Abin
Suraj was whether a Single Judge can entertain a Contempt
Case for non-compliance of the order, when the matter was
taken up in appeal and affirmed after hearing all parties. The
question was answered in the negative in the said case, taking
the view that the principle of merger applies absolutely to
contempt proceedings. Consequently, the contempt
proceedings initiated before the Single Judge alleging wilful
disobedience of the judgment in the writ petition was dismissed
giving liberty to the petitioners to file a fresh petition, if they
have a case that the judgment in the writ appeal has been
wilfully disobeyed.
5. A reading of the judgment in Abin Suraj
indicates that the view taken therein is that the principle of
merger applies to contempt proceedings as well, and as such,
even if the appellate court only affirms the decision of the
Single Judge, the enforceable decision is the decision of the
appellate court. Abin Suraj being a case where the appeal was
dismissed at the admission stage, as noted, it was also clarified
therein that the fact that the appeal was not admitted or that
notice was not issued in the appeal, is inconsequential in a
case where all the contesting parties entered appearance and
were heard by the appellate court.
6. It was held by the Apex Court in State of
Madras v. Madurai Mills Co. Ltd., AIR 1967 SC 681 that the
doctrine of merger is not a doctrine of rigid and universal
application and its application depends on the nature of the
appellate or revisional order in each case and the scope of the
statutory provisions conferring the appellate or revisional
jurisdiction. The question whether the principle of merger
applies to contempt proceedings has been considered by a
learned Single Judge of the Andhra Pradesh High Court in
K.K.R. Nair v. Mohan Das and Another, 1989 SCC OnLine
AP 241. It is a case where a Single Judge of the Andhra Pradesh
High Court set aside an order terminating an employee from
service. The said decision was affirmed in appeal and the
Special Leave Petition preferred against the decision of the
appellate court was dismissed by the Apex Court. Even
thereafter, the petitioner in the writ petition was not reinstated.
He, therefore, filed the contempt petition before the learned
Single Judge, the maintainability of which was objected to, on
the ground that the principle of merger applies and that the
contempt proceedings could therefore be filed only before the
Apex Court. The learned Single Judge of the Andhra Pradesh
High Court, however, held that the doctrine of merger is not a
doctrine of rigid and universal application and that proceedings
for contempt could be initiated before the learned Single Judge.
7. It is seen that in Mariamma Thomas v.
Vijayanand I.A.S., 2019 (1) KLT 249, after referring to K.K.R.
Nair as also Abin Suraj, another learned Single Judge of this
court held that the principle of merger applies to contempt
proceedings only if its application meets the ends of justice.
Paragraph 26 of the said judgment reads thus:
"26. Summarizing the precedential position--despite the
decisional cleavage-- I may hold thus:
(a) The principle of merger does apply to contempt
proceedings, too; but its attenuation is permissible, nay
desirable, if it meets the ends of justice;
(b) before the Constitutional Courts, if an order gets
simply affirmed (or the appeal summarily dismissed) in
the adjudicatory echelons, the order to be complied with is
the primary one; on its violation, the beneficiary can
maintain contempt proceedings before the Bench of first
instance;
(c) prudent is the approach to put on hold the
contempt proceedings until the appeal concludes, but the
affirmation in appeal does not necessitate initiation of
fresh contempt proceedings, more particularly, before the
appellate bench;
(d) despite affirming the order, if the appellate bench
materially modifies or varies the impugned order, the
merger takes place; therefore, it needs fresh contempt
proceedings before the appellate bench; but
(e) If the appellate court only relaxes the rigour of the
order, say, by enlarging the time for compliance--which is
no effacement of the order--there is no merger; therefore,
the violation, if any, must be in relation to the original
order."
As evident from the extracted paragraph, the view taken by the
learned Single Judge is that if an order gets simply affirmed, or
if the appeal is dismissed summarily, the order to be complied
with is the primary one and on its violation, the beneficiary can
maintain contempt proceedings before the Bench of the first
instance. It was also the view of the learned Judge that if the
appellate bench modifies or varies the impugned order, the
merger takes place and in that event, a fresh proceedings
needs to be initiated before the appellate court. It was also
clarified that if the appellate court only relaxes the rigour of the
order, say, by enlarging the time for compliance, which is no
effacement of the order; there is no merger and therefore, the
violation if any, must be in relation to the original order.
8. The difference in the view taken by this court in
Abin Suraj and Mariamma Thomas is that in Abin Suraj,
the principle of merger has been applied absolutely, whereas,
in Mariamma Thomas, it was held that the principle of
merger applies to contempt proceedings only if it meets the
ends of justice. Having considered the judgments aforesaid, we
prefer to endorse the view taken in Mariamma Thomas and
we shall give hereunder the reasons for taking such a view.
9. As noted, the principle of merger is not a
principle of rigid and universal application and its application
depends on the nature of the appellate or revisional order in
each case and the scope of the statutory provisions conferring
the appellate or revisional jurisdiction. If this principle is
applied absolutely, it will lead to anomalous situations. For
instance, in a given case where an appeal is preferred against
the decision of a Single Judge allowing a writ petition after the
institution of the contempt proceedings, even if the appeal is
dismissed on merits or in limine, the proceedings needs to be
dropped and the beneficiary of the order in the case would be
compelled to initiate a fresh proceedings before the appellate
court, if the order is not complied with. Similarly, in a given
case where a writ petition is allowed by the appellate court
reversing the decision of the Single Judge and if the decision of
the appellate court is affirmed by the Apex Court after granting
Special Leave to Appeal as provided for under Article 136 of the
Constitution, then the contempt proceedings for enforcement
of the same can be initiated only before the Apex Court.
Needless to say, to the extent it was held in Abin Suraj that
the doctrine of merger applies absolutely to contempt
proceedings, we are constrained to hold that the principle of
law has not been correctly laid down in Abin Suraj.
10. Reverting to the facts, as noted, the case on
hand being a case where this court only affirmed the decision
of the learned Single Judge without varying/modifying the same
in any manner, whatsoever, the matter needs to be pursued
before the learned Single Judge.
The contempt case, in the circumstances, is made
over to be listed before the learned Single Judge whose
decision was appealed against in the writ appeal.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
C.S.SUDHA, JUDGE.
YKB
01-08-2023 /True Copy/ Assistant Registrar
