Kerala High Court

Kerala State Electricity Board Ltd vs Raphael And Company on 24 February, 2025

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W. A. No. 284 of 2025
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                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

           THE HONOURABLE THE CHIEF JUSTICE MR. NITIN JAMDAR

                                      &

                     THE HONOURABLE MR. JUSTICE S.MANU

    MONDAY, THE 24TH DAY OF FEBRUARY 2025 / 5TH PHALGUNA, 1946

                            WA NO. 284 OF 2025

         AGAINST THE ORDER DATED 15.01.2025 IN Con.Case(C) NO.2436

OF 2018 OF HIGH COURT OF KERALA


APPELLANT(S)/RESPONDENTS IN COC:

     1          KERALA STATE ELECTRICITY BOARD LTD.
                VYDHYUTHI BHAVAN, PATTOM P.O., THIRUVANANTHAPURAM
                REPRESENTED BY ITS SECRETARY, PIN - 695004

     2          THE CHIEF ENGINEER (TECHNICAL, CONTRACTS AND
                MATERIALS)
                KERALA STATE ELECTRICITY BOARD LTD,, VYDHYUTHI
                BHAVAN, PATTOM P.O., THIRUVANANTHAPURAM, PIN - 695004

                BY ADVS.
                JOSEPH JOSE
                RAJU JOSEPH (SR.)


RESPONDENT(S)/PETITIONER IN CONC:

                RAPHAEL AND COMPANY,
                CHERUPU, THRISSUR, REPRESENTED BY ITS MANAGING
                PARNTER, MR.V.P.RAPHAEL., PIN - 680561
                BY ADVS. PHILIP T.VARGHESE
                THOMAS T.VARGHESE(K/000516/1995)
                ACHU SUBHA ABRAHAM(K/001758/1999)

         THIS    WRIT   APPEAL   HAVING     COME   UP   FOR    ADMISSION   ON
24.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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                              JUDGMENT                         C.R.
                Dated this the 24th day of February, 2025.

Nitin Jamdar, C. J.

     By this Appeal under Section 5 of the Kerala High Court Act, the
Kerala Electricity Board has challenged the order passed by the learned
Single Judge dated 15 January 2025 in Con. Case (C) No.2436/2018
arising from W.P.(C)No.29650/2009. The Respondent - Raphael and
Company filed the writ petition for quashing Exts. P4, P4(a) and P4(b)
so far as they are limited to the benefits of full price variation.

2.   Raphael and Company (the Company) had entered into a contract
with the Kerala State Electricity Board (the Board) in 2005-2006 for a
period of five years to supply PSC poles. One of the Clauses in the
contract was regarding price variation, stating that if there is a variation
of 10% in the cost of components, the benefit of the price variation
would be given to the contractor. The Board had taken a stand that the
price variation would apply prospectively from a particular date. The
same was challenged by the Company by way of a writ petition. The
learned Single Judge recorded that the only issue in the writ petition
was regarding the claim for price variation for the period from the date
of commencement of the contract till September 2008. By judgment
dated 27 October 2017, the writ petition was disposed of directing the
Board to give effect to Clause 14 upto the period of September 2008.
The learned Single Judge also directed that the Board has to give effect
to Clause 14 for a further period covering up to September 2008. Then
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the Contempt Petition was filed by the Company making a grievance
that though the certified copy of the judgment dated 27 October 2017
was produced before the Board on or around 18 December 2017, the
Board did not implement the judgment and also the reminders were
ignored. The Petitioner Company contended that the non-compliance
of the judgment by the Board amounts to wilful disobedience and
deliberate defiance of the judgment, which is liable to be punished
under Article 215 of the Constitution of India read with Section 12 of
the Contempt of Courts Act, 1971.

3.   The Contempt Petition was filed on 14 December 2018. The
scope of the contempt proceedings was, whether there is wilful
disobedience and, if yes, what action needs to be taken.

4.   The Board filed a reply affidavit contending that the only direction
given in the judgment dated 27 October 2017 was to give effect to
Clause 14 of the contract up to September 2008, and no other
directions were issued. The Board contended that the order passed on
27 October 2017 has already been complied with by virtue of an order
passed by the Secretary of the Board on 25 May 2020.

5.   In the Contempt Petition, the learned Single Judge passed an
order on 10 January 2024, making certain observations and granting
further time. Then again, on 13 March 2024, the learned Single Judge
passed another order directing the Appellant Board to calculate the
balance price variation.

6.   On 15 January 2025, the learned Single Judge passed a detailed
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order reiterating the earlier facts and noting that various orders are
passed in the Contempt petition. The learned Single Judge observed
that there is no dispute to the fact that from 2008 onwards, the price
variation was given inclusive of 10%, and in view of Clause 14, the
Board cannot take a stand that the price variation is not based on any
difference above 10%. The Board had contended that while disposing
of the writ petition, the learned Single Judge had not specifically
directed payment variation up to 10%. The learned Single Judge
referred to the fact that the Court had decided the matter after referring
to the Board's decision and ordered that such price variation should be
given from the date of inception. Reference was also made to an order
dated 13 March 2024 passed in the Contempt Petition directing the
Board to calculate the amount from the inception of the contract itself.
Thereafter, reference was made to the statement filed on 3 July 2024,
and a direction was issued to pay the price variation of ₹64,42,821/-.
The learned Single Judge observed that this having not been paid, the
same should be paid within one month, failing which, it will carry
interest, and the hearing of the Contempt Petition was adjourned.
Being aggrieved, the Board has filed the present Appeal.

7.     We have heard Mr. Raju Joseph, learned Senior Advocate
appearing for the Appellants, and Mr. Philip T. Varghese, learned
counsel for the Respondent.

8.   The learned counsel for the Board submitted that the only
direction in the original order dated 27 October 2017 was to give price
variation in accordance with Clause 14, and according to the Board, it
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had already been complied with. Learned counsel for the Board
contended that the orders passed in the contempt petition leading to
the impugned order on 15 January 2025 are beyond the scope of
contempt jurisdiction where fresh adjudication cannot be made. It was
submitted that the order passed by the Board, Ext.R2(c), has not been
challenged, and new adjudication cannot be made in the contempt
jurisdiction. Learned counsel for the Company submitted that there is
no fresh adjudication, and the learned Single Judge has passed the
order only to grant indulgence from time to time to comply with the
order dated 27 October 2017.

9.   The law regarding the ambit of civil contempt jurisdiction in the
context of passing new orders is settled. The contempt jurisdiction is
vested with the Court to uphold its majesty and dignity. It is a special
jurisdiction and carries certain limitations in its ambit. One of the
limitations is that the Court will not pass new orders in continuation of
the earlier lis between the parties on merits assuming continuous
review or original jurisdiction. When the civil contempt alleged is of
willful disobedience of the order of the Court, the Court will either
discharge the proceedings or proceed to punish for contempt. If there is
any doubt or lacuna in the original order, it is a matter of review
jurisdiction and not contempt jurisdiction. The Hon'ble Supreme
Court, in various decisions, has disapproved passing new orders in
contempt jurisdiction, which are referred to hereinafter.

10. In Jhareswar Prasad Paul v. Tarak Nath Ganguly,1 the Hon'ble

1 (2002) 5 SCC 352
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Supreme Court was considering an appeal from the order passed by the
Division Bench of the High Court which held that the respondent-
contemners had not complied with the order in an appropriate manner,
but there is some doubt and the respondent-contemners were entitled
to benefit of doubt. However, the Division Bench issued new orders
different than the original one which were disapproved by the Supreme
Court observing thus:
     "11. The purpose of contempt jurisdiction is to uphold
     the majesty and dignity of the courts of law, since the
     respect and authority commanded by the courts of law are
     the greatest guarantee to an ordinary citizen and the
     democratic fabric of society will suffer if respect for the
     judiciary is undermined. The Contempt of Courts Act,
     1971 has been introduced under the statute for the
     purpose of securing the feeling of confidence of the
     people in general for true and proper administration of
     justice in the country. The power to punish for contempt
     of court is a special power vested under the Constitution
     in the courts of record and also under the statute. The
     power is special and needs to be exercised with care and
     caution. It should be used sparingly by the courts on being
     satisfied regarding the true effect of contemptuous
     conduct. It is to be kept in mind that the court exercising
     the jurisdiction to punish for contempt does not function
     as an original or appellate court for determination of the
     disputes between the parties. The contempt jurisdiction
     should be confined to the question whether there has
     been any deliberate disobedience of the order of the court
     and if the conduct of the party who is alleged to have
     committed such disobedience is contumacious. The court
     exercising contempt jurisdiction is not entitled to enter
     into questions which have not been dealt with and
     decided in the judgment or order, violation of which is
     alleged by the applicant. The court has to consider the
     direction issued in the judgment or order and not to
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     consider the question as to what the judgment or order
     should have contained. At the cost of repetition, be it
     stated here that the court exercising contempt jurisdiction
     is primarily concerned with the question of contumacious
     conduct of the party, which is alleged to have committed
     deliberate default in complying with the directions in the
     judgment or order. If the judgment or order does not
     contain any specific direction regarding a matter or if there
     is any ambiguity in the directions issued therein then it
     will be better to direct the parties to approach the court
     which disposed of the matter for clarification of the order
     instead of the court exercising contempt jurisdiction
     taking upon itself the power to decide the original
     proceeding in a manner not dealt with by the court
     passing the judgment or order. If this limitation is borne
     in mind then criticisms which are sometimes levelled
     against the courts exercising contempt of court jurisdiction
     "that it has exceeded its powers in granting substantive
     relief and issuing a direction regarding the same without
     proper adjudication of the dispute" in its entirety can be
     avoided. This will also avoid multiplicity of proceedings
     because the party which is prejudicially affected by the
     judgment or order passed in the contempt proceeding and
     granting relief and issuing fresh directions is likely to
     challenge that order and that may give rise to another
     round of litigation arising from a proceeding which is
     intended to maintain the majesty and image of courts.
                                ***

13. In the facts and circumstances of the case, we are constrained to hold that the judgment/order passed by the High Court was without jurisdiction. In the result, the appeals are allowed. The judgment/order under challenge is set aside. The petition filed by the writ petitioners for taking action for contempt of court against the respondents is dismissed."

                              ***             (emphasis supplied)
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This view was followed in V.M. Manohar Prasad v. N. Ratnam Raju2. The Hon'ble Supreme Court observed that the position of law is that in contempt proceedings no further directions could be issued by the Court. If it is found that there is a violation of the order passed by the Court, the Court may punish the contemnor; otherwise, notice of contempt is to be discharged. The order passed in the contempt petition could not be a supplemental order to the main order granting relief. Then in Sudhir Vasudeva v. M. George Ravishekaran,3 the Hon'ble Supreme Court held as follows:

"19. The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt. The very nature of the power casts a sacred duty in the Courts to exercise the same with the greatest of care and caution. This is also necessary as, more often than not, adjudication of a contempt plea involves a process of self-determination of the sweep, meaning and effect of the order in respect of which disobedience is alleged. The Courts must not, therefore, travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are explicit in a judgment or order or are plainly self- evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or wilful violation of the same. Decided issues cannot be reopened; nor can the plea of equities be considered. The Courts must also ensure that while 2 (2004) 13 SCC 610 3 (2014) 3 SCC 373 2025:KER:15854

considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon. No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above. The above principles would appear to be the cumulative outcome of the precedents cited at the Bar, namely, Jhareswar Prasad Paul v. Tarak Nath Ganguly [(2002) 5 SCC 352 :

2002 SCC (L&S) 703] , V.M. Manohar Prasad v. N. Ratnam Raju [(2004) 13 SCC 610 : 2006 SCC (L&S) 907] , Bihar Finance Service House ConstructionCoop. Society Ltd. v. Gautam Goswami [(2008) 5 SCC 339] and Union of India v. Subedar Devassy PV[(2006) 1 SCC 613] .

*** (emphasis supplied)

11. In the case of Senthur v. T.N. Public Service Commission4, the Hon'ble Supreme Court held that in contempt jurisdiction, the Court will not travel beyond the original judgment and direction; neither would it be permissible for the Court to issue any supplementary or incidental directions, which are not to be found in the original judgment and order. While dealing with civil contempt, the Court is only concerned with the wilful or deliberate non-compliance of the directions issued in the original judgment and order. The Appellants have also relied on the decisions in Prithawi Nath Ram v. State of Jharkhand 5 and Abhishek Kumar Singh v. G. Pattanaik and Other. 6 which laid down the same position of law.

4 (2022) 17 SCC 568 5 (2004) 7 SCC 261 6 (2021) 7 SCC 613 2025:KER:15854

12. Thus, the legal position is settled that civil contempt jurisdiction is meant to ensure compliance with the orders of the Court and maintain the dignity of the Court. This jurisdiction is not be executed to supplement or modify earlier judicial decisions. In contempt jurisdiction Courts have to limit the determination to whether there has been willful disobedience to a self-evident order. It is not permissible to travel beyond the original judgment or enter into issues that were not previously adjudicated. Directions that are not contained in the judgment cannot be enforced through contempt proceedings. If an order is ambiguous, seeking clarification through review or appeal is the appropriate remedy. Thus, if a substantive relief that alters the original order or a new order is executed in civil contempt, proceedings will be beyond jurisdiction.

13. As regards the case at hand, the contempt petition is still pending and has not been disposed of. The learned Single Judge has not concluded that there is any wilful disobedience on the part of the Appellant Board to proceed to take action for contempt. There is no discussion in the order dated 15 January 2025 as to whether it is passed to implement the order dated 27 October 2017, or it introduces new directions or it adjudicates issues not covered in the original order, in the context of the principle laid down by the Hon'ble Supreme Court in the case of Jhareswar Prasad Paul and other decisions cited above.

14. Since the impugned order dated 15 January 2025 does refer to the above legal position which has direct bearing on the issue of jurisdiction, the impugned order dated 15 January 2025 will have to be 2025:KER:15854

set aside. Ordered accordingly.

15. However, it will be open to the learned Single Judge to decide whether directions such as the ones in the order dated 15 January 2025 are only to give effect to the order dated 27 October 2017 and whether they need to be issued, keeping in mind the law laid down by Hon'ble Supreme Court in the decisions as above.