Madras High Court
Boothanathan vs Mr.A.Nepoliyan on 23 July, 2021
Cont.P.No.12 of 2019
in W.P.No.12564 of 2013
IN THE HIGH COURT OF JUDICATURE OF MADRAS
DATED: 23.07.2021
CORAM:
THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN
CONT.P.No.12 of 2019
in W.P.No.12564 of 2013
(Through Video Conference)
1. Boothanathan
2. K.Selvam
3. V.Ramalingam ...Petitioners/Respondents 2 to 4
-vs-
Mr.A.Nepoliyan
Larsen & Toubro Ltd., ECC Division,
Manager-Industrial Relations,
Mylam Road, Sedarapet,
Pondicherry 605111 ...Respondent/Petitioner
PRAYER: Contempt Petition filed under Section 11 of the Contempt of
Courts Act to punish the respondent for his deliberate disobedience of the
order of this Court dated 08.02.2018 made in W.P.No.12564 of 2013.
For Petitioner : Mr.P.R.Thiruneelakandan
For Respondents : Mr.Kalyanaraman
******
ORDER
This Contempt Petition has been filed, seeking to punish the
Respondent for his willful disobedience of the orders of this Court dated
08.02.2018 made in W.P.No.12564 of 2013.
__________
https://www.mhc.tn.gov.in/judis
Cont.P.No.12 of 2019
in W.P.No.12564 of 2013
2. Heard Mr.P.R.Thiruneelakandan, learned counsel appearing for
the Petitioners and Mr.Kalyanaraman, learned counsel appearing for the
Respondent.
3. When the matter is taken up for hearing, it is represented by the
learned counsel for the Respondent that against the order dated
08.02.2018, a Writ Appeal has been preferred in W.A.No.3542 of 2019,
which came up for hearing on 14.07.2021 and therefore, the present
Contempt Petition is not maintainable before the Single Judge, as the
order got merged with the Writ Appeal. In support of his contention, the
learned counsel for the respondent relied upon a judgment of this Court
reported in 2017 (3) CTC 783: (2017) 3 MLJ 565 (Ponnuthai Vs.
Thiru V.MXavier Chrisso Nayagam, IAS., The Director, Directorate of
Social Welfare Department, Chepauk, Chennai 5 and others), wherein
it has been held as follows:
“4.Learned counsel for the petitioner would contend that a Single
Judge is entitled to proceed with a Contempt Petition. To substantiate his
case, he has referred to a decision of the Apex Court in the case of
Dineshan, K.K. vs. R.K.Singh and another, [(2014) 16 SCC 88],
wherein, it has been held as under:
__________
https://www.mhc.tn.gov.in/judis
Cont.P.No.12 of 2019
in W.P.No.12564 of 2013
“9. We have carefully perused the decision of this Court. A
reading of the judgment would certainly indicate that when the
civil appeals and the special leave petitions are dismissed with
reasons, the orders passed by the courts below would merge with
the judgment and order passed by this Court. The said decision has
been followed by this Court in a catena of subsequent judgments of
this Court.
10. In view of what has been said by this Court in the
aforesaid decision, we cannot hold that the judgment and order
passed by the High Court has not merged with the judgment and
order passed by this Court when the civil appeal filed by the
petitioner complainant was dismissed.
5. With reference to the three-Judge ruling in Kunhayammed
case, a two-Judge Bench in the above case of K.K.Dineshan, in exercise
of the powers under Articles 129, 136 and 142 of the Constitution of
India, has directed the complainant therein to approach the High Court.
But, this Court is not inclined to accept the contention of the counsel for
the petitioner in view of the finding of the Apex Court in the subsequent
paragraphs of K.K. Dineshan's case, which would read thus:
“12. We requested Shri K.K. Venugopal and Dr. Rajeev
Dhawan, learned Senior Counsel to assist us in the matter. Their
view on the second question is that undoubtedly the order passed
by this Court, while accepting the judgment and order passed by
the Courts below, would merge with the judgment and order passed
by the Courts below. However, this Court in exercise of its powers
under Articles 129, 136 and 142 of the Constitution of India could
direct the complainant/petitioner to approach the High Court and
bring to its notice and knowledge that their orders and directions
have been disobeyed by the respondents/contemnors.
14.We are mindful of settled law that the orders passed by
the High Court would merge with the order passed by this Court.
This Court has dismissed the appeal only and, therefore, it is the
directions passed by the High Court which in fact have been
allegedly disobeyed by the respondents/contemnors. In our
considered view, it would be in the interest of justice and to lessen
the burden of this Court in the current scenario, it would be
appropriate to request the High Court to look into the grievance of
the complainant, if a petition is filed before them inter alia bringing
to their notice and knowledge that their orders and directions have
been disobeyed. In our opinion, firstly, this exercise would be
__________
https://www.mhc.tn.gov.in/judis
Cont.P.No.12 of 2019
in W.P.No.12564 of 2013
beneficial to the parties because they were before the High Court in
the writ petition wherein the directions were issued and secondly,
by entertaining the petitions of this nature wherein this Court has
passed an order of dismissal simplicitor and the alleged contempt
arises out of the order passed by the High Court, this Court would
saddle the dockets with cases which could otherwise be effectively
could be disposed of by the Courts below.
6. Once the order passed in a Writ Petition gets merged with the
order of the Writ Appeal, the remedy available to the petitioner is to file
a Contempt in the Writ Appeal and not in the Writ Petition, unless and
until the Apex Court specifically directs the High Court to decide the
issue. If the order of a Single Judge is affirmed or modified, the
contempt can be filed only before the Division Bench and not before the
Single Judge. Once a Writ Appeal is numbered, then the Single Judge
cannot take up the contempt in view of the decisions of the Apex Court.
If the Writ Appeal is withdrawn, certainly contempt will lie before the
Single Judge and the time limit as per Section 20 of the Contempt of
Courts Act will commence only from the date of order in the Writ
Appeal."
4. This Court is of the view that once an order is passed in the Writ
Appeal, either confirming or reversing or modifying the order passed in
the Writ Petition, it will automatically get merged with the judgment
rendered in the Writ Appeal and if a party is aggrieved, his / her remedy
is to file a Contempt Petition before the Division Bench only.
5. At this juncture, learned counsel for the Petitioners drew the
attention of this Court to the order dated 13.12.2017 passed by this Court
in Contempt Petition No.1316 of 2017, wherein a learned Single Judge
__________
https://www.mhc.tn.gov.in/judis
Cont.P.No.12 of 2019
in W.P.No.12564 of 2013
has taken a conflicting view, as could be seen in Paragraph 35 of the said
order dated 13.12.2017, holding that mere filing of an Appeal will not
give license to the Government / Respondents to disobey the
orders/directions of this Court. For better appreciation, the Paragraph 35
of the said order dated 13.12.2017 is extracted hereunder:
"35. ... Further, the Apex Court, though held that, when
the judgment and order passed by the High Court merged with
the order passed by the Hon'ble Supreme Court, while disposing
of the Civil Appeal, the Apex Court directed the
complainant/petitioner to file an appropriate Contempt Petition
before the High Court for the alleged disobedience of the orders
and directions issued by the High Court and if such a Contempt
Petition is filed, the High Court would consider the same in
accordance with law. ..."
6. Of course, there is no quarrel with the finding of the learned
Single Judge, who passed the order dated 13.12.2017 in Contempt
Petition No.1316 of 2017, and a Party cannot be made to wait for the
decision in the Writ Appeal endlessly, as already there are several lakhs
of cases pending for hearing. At the same time, it cannot be lost sight of
the fact that Section 20 of the Contempt of Courts Act, 1971 cannot
abridge the powers of Article 215 of the Constitution of India and
Contempt Petition can be filed at any time before the appropriate Bench,
if there is a continuous cause of action, or, if the Apex Court directs the
__________
https://www.mhc.tn.gov.in/judis
Cont.P.No.12 of 2019
in W.P.No.12564 of 2013
Single Judge to hear the same after confirming the orders in the Writ
Petition, as per the decision of the Apex Court.
7. Hence, in the considered opinion of this Court, the issue needs
to be clarified by a Larger Bench to be constituted by the Hon'ble Chief
Justice. Accordingly, the matter is referred to a Larger Bench for deciding
the following issues:
i) Whether a Contempt Petition can be filed before a
Single Judge, when the Writ Appeal against the order of the
learned Single Judge is numbered; and
ii) Whether a Contempt Petition can be heard by a Single
Judge, when there is no final order or stay granted in the Writ
Appeal?
8. This Court cannot, for the present, entertain this Contempt
Petition, as I have passed several orders, following the principles of
Doctrine of Merger. Hence, this Contempt Petition is closed as not
maintainable .
9. Registry is directed to obtain suitable orders from the Hon'ble
__________
https://www.mhc.tn.gov.in/judis
Cont.P.No.12 of 2019
in W.P.No.12564 of 2013
Chief Justice and list the matter before the Larger Bench for deciding the
above issues.
23.07.2021
Index:Yes / No
Speaking Order / Non-Speaking Order
sts
__________
https://www.mhc.tn.gov.in/judis
Cont.P.No.12 of 2019
in W.P.No.12564 of 2013
S.VAIDYANATHAN, J.
sts
CONT.P.No.12 of 2019
in W.P.No.12564 of 2013
23.07.2021
__________
https://www.mhc.tn.gov.in/judis
