Madras High Court
Arulnathan vs J.Daniel on 26 October, 2021
Contempt Appeal No.6 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.10.2021
Coram
THE HONOURABLE MR. JUSTICE P.N.PRAKASH
and
THE HONOURABLE MRS. JUSTICE S.SRIMATHY
Contempt Appeal No.6 of 2019
and
C.M.P.Nos.561 of 2021 and 23760 of 2019
1.Arulnathan
The Diocesan Educational Officer & Convener
CSI Diocese of Madras,
The Diocesan Office,
Post Box No.4914
Chennai – 600 086.
2.Hepzibah Francis
The Correspondent/Headmistress,
CSI Ebba's Girls Higher Secondary School,
Mylapore, Chennai – 600 004. .. Appellants
Vs.
J.Daniel
S/o.James .. Respondent
1/16
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Contempt Appeal No.6 of 2019
Contempt Appeal filed u/s.19(1) of the Contempt of Courts Act, 1971,
against the order of this Court dated 25.10.2019 passed in Contempt
Petition No.1310 of 2019 in W.M.P.No.17460 of 2019 in W.P.No.18070 of
2019.
For Appellants : Dr.Fr.A.Xavier Arulraj, Senior Counsel
for Ms.A.Arul Mary
For Respondent : Mr.G.Sankaran
*****
JUDGMENT
[Judgment of the Court was delievered by P.N.PRAKASH, J]
This Contempt Appeal has been filed against the order of this Court
dated 25.10.2019 passed in Contempt Petition No.1310 of 2019.
2. The minimum facts that are required for deciding this Contempt
Appeal, are as under:
2.1. The Church of South India (for brevity 'the CSI') is a company
incorporated under the Companies Act, 1913 and runs several educational
institutions throughout South India. The CSI has several dioceses, of which,
CSI Diocese of Madras is one.
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Contempt Appeal No.6 of 2019
2.2. Mr.S.Arulnathan (first appellant) was the Honorary Diocesan
Educational Officer and Convener and Mrs.Hepzibah Francis (second
appellant) was the Correspondent of CSI Ebba's Girls Higher Secondary
School, Mylapore, Chennai (for brevity 'Ebba's school'), which is an
institution run by the Diocese of Madras. One Daniel (respondent herein)
was working as Office Assistant in Ebba's School in 2019.
2.3. The CSI Diocese of Madras effects annual transfer of its
employees from one institution to another, which practice has been
approved by a Division Bench of this Court in G.R.Prem Kumar v. The
Correspondent, Corley Higher Secondary School and other1. While that
being so, the CSI Diocese of Madras transferred Daniel from Ebba's School,
Chennai to CSI St.David's Higher Secondary School, Cuddalore, by an
order of transfer dated 15.06.2019. In the place of Daniel, the CSI Diocese
of Madras transferred one Sekar from CSI Alison Cassie Girls Higher
Secondary School, Chengalpattu, to Ebba's school vide order dated
15.06.2019, who joined the said post on 18.06.2019. However, Daniel did
1 (2011) W.L.R. 38
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Contempt Appeal No.6 of 2019
not report to duty in the transferred post in Cuddalore, but instead submitted
an application for medical leave.
2.4. Daniel filed W.P.No.18070 of 2019 on 24.06.2019 in the High
Court challenging the order of transfer dated 15.06.2019 and also prayed for
interim stay of the order of transfer in W.M.P.No.17460 of 2019. The main
Writ Petition in W.P.No.18070 of 2019 and the application for interim stay
in W.M.P.No.17460 of 2019 came up for admission on 26.06.2019 and after
hearing the learned counsel for Daniel, a learned single Judge passed the
following interim order in W.M.P.No.17460 of 2019 in W.P.No.18070 of
2019:
'Notice to the respondents returnable in eight weeks. There shall be
an order of interim stay.'
2.5. Thereafter, Daniel issued a pre-contempt notice dated 18.07.2019
to the CSI Diocese of Madras and followed it up by filing a Contempt
Petition No.1310 of 2019 on 26.07.2019 before the learned single Judge
alleging that the CSI Diocese of Madras had committed contempt of Court
by violating the order of interim stay dated 26.06.2019.
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Contempt Appeal No.6 of 2019
2.6. The Contempt Petition was listed on various dates. In the mean
while, the CSI Diocese of Madras entered appearance in the main Writ
Petition No.18070 of 2019 and filed an application in W.M.P.No.30506 of
2019 in W.P.No.18070 of 2019 on 22.10.2019 for vacating the ex parte
order of interim stay that was granted by this Court on 26.06.2019.
2.7. It appears that the contempt petition came up before the learned
single Judge on various dates and on 25.10.2019, Arulnathan and Hepzibah
Francis were physically present before the Court with their counsel. On that
date, the learned single Judge heard the learned counsel for Daniel, the
learned Senior Counsel for CSI Diocese of Madras and by the impugned
order dated 25.10.2019 in Contempt Petition No.1310 of 2019, convicted
and sentenced Arulnathan and Hepzibah Francis as under:
'18. The respondents/contemnors are punished under Section 12
of the Contempt of Courts Act, 1971. The first respondent shall undergo
Civil imprisonment for a period of one month and shall pay a fine of
Rs.5,000/- (Rupees Five Thousand only). The second respondent shall
pay a fine of Rs.5,000/-(Rupees Five Thousand Only). The fine amount
shall be paid by the respondents before the State Legal Services
Authority, High Court Campus, Chennai - 600 104.'
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Contempt Appeal No.6 of 2019
2.8. It appears that the order dated 25.10.2019 was passed on the eve
of Diwali. Since the order copy was not ready, the learned Senior Counsel
for CSI Diocese of Madras approached the Hon'ble Acting Chief Justice and
prayed for the constitution of a Special Bench to take up the Contempt
Appeal, lest Arulnathan and Hepzibah Francis should suffer imprisonment.
2.9. Accordingly, a Special Bench comprising Hon'ble Mr.Justice
M.M.Sundresh [as he then was] and Hon'ble Mr.Justice RMT.Teekaa Raman
was constituted and this Contempt Appeal was taken up in SR stage viz.,
Cont.A.Sr.No.135477 of 2019 for hearing on 26.10.2019 and the following
order was passed:
'Heard the learned Senior Counsel for the
petitioners/appellants.
2. It appears from the records that the appeal has not been
numbered as the order copy passed by the learned Single Judge is
not ready.
3. The learned Senior Counsel submitted that in the
meanwhile, the appellants are likely to be imprisoned apart from
payment of fine as directed. On merits, it is further submitted that
the respondent has been relieved and in his place somebody else has
been deputed even much prior to the order passed in the writ
petition. In fact, he has been relieved on 17.06.2019 whereas the writ
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Contempt Appeal No.6 of 2019
petition was filed on 25.06.2019 and the interim stay order was
passed on 26.06.2019. It is further submitted that the transfer is not
punitive and only an incidental to service. The relevant Rule,
namely, Rule 15(4) does not have any application to the Minority
Institutions. Thus, even on merit there is no stigma attached to the
order nor it can be termed as punitive in nature. It is further
submitted that for the ensuing promotion, there is no bar for the
respondent to proceed.
4. The learned Senior Counsel further submitted that the
appellants were suffering from ailment. The learned Single Judge
could have taken up the vacate stay petition and decided the matter
on merits in view of the specific submission made on the facts.
5. We are not inclined to take the matter on merit for the
simple reason that copy of the order passed by the learned Single
Judge is not furnished and there is no typed circulation also made.
6. In such view of the matter, we are inclined to post the
matter for further hearing on 04.11.2019. In the meanwhile, the
Registry is directed to make the order copy ready and furnish the
same to the appellants. As and when they received it, the appellants
will have to file it in the Registry and number the same as per the
procedure.
7. In the meanwhile, the order passed by the learned Single
Judge both with respect to the payment of fine and the imprisonment
shall be kept in abeyance.'
2.10. A reading of the above shows that the Contempt Appeal was
entertained even without a copy of the impugned order as the situation then
warranted so. Thereafter, when the impugned order passed by the learned
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Contempt Appeal No.6 of 2019
single Judge was received, the parties found that the learned single Judge
himself had granted suspension of sentence for a period of 10 days.
3. Heard Dr.Fr.A.Xavier Arulraj, learned Senior Counsel appearing
for the appellants and Mr.G.Sankaran, learned counsel appearing for the
respondent.
4. The short point for determination in this Contempt Appeal is,
whether the impugned order convicting and sentencing the appellants, as
aforesaid, is legally maintainable.
5. To appreciate this contention, it may be apposite to extract the
following paragraphs from the impugned order passed by the learned single
Judge:
'8. The contempt petition was listed before this Court on
22.08.2019 and was adjourned to 05.09.2019. On 05.09.2019, it was
again adjourned to 11.09.2019. When the contempt petition was
listed on 12.09.2019, this Court issued statutory notice to the
respondents returnable in four weeks. On 18.10.2019, the
contemnors/ respondents did not appear before this Court and based
on the submissions made by the learned counsel appearing for the
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Contempt Appeal No.6 of 2019
contemnors/ respondents that due to health issue, the contemnors/
respondents were not able to appear before this Court, the contempt
petition was adjourned to 25.10.2019.
9. Mr.Father Xaviour Arul Raj, learned Senior Counsel
appearing for the contemnors/ respondents, on instructions,
submitted that chain of transfer orders cannot be implemented and
would further submit that if it is implemented, it would create choas
in the administration. The learned Senior Counsel would further
submit that the respondents have filed vacate stay petition in
W.P.No.18070 of 2019 and requested this Court to take up the vacate
stay petition prior to contempt petition.
10. This Court perused the records. The petitioner sent legal
notice to the respondents on 18.07.2019 and filed this contempt
petition on 26.07.2019. The learned Senior Counsel appearing for
the contemnors/ respondents fairly conceded that the vacate stay
petition in W.P.No.18070 of 2019 was filed only after filing of the
contempt petition.
11. The contemnors/ respondents appeared before this Court and
expressed that they are not in a position to implement the order
dated 26.06.2019 made in W.P.No.18070 of 2019 and
W.M.P.No.17460 of 2019.'
6. A reading of the above shows that an ex parte order of interim stay
of transfer was passed by a learned single Judge on 26.06.2019, by which
time, it appears that Sekar, who was transferred to the post of Daniel in
Ebba's School, had joined the post on 18.06.2019. Therefore, the learned
Senior Counsel for CSI Diocese of Madras submitted to the learned single
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Contempt Appeal No.6 of 2019
Judge in the contempt proceedings on 25.10.2019 that there are
administrative difficulties in the implementation of the ex parte order of
interim stay and prayed for taking up the vacate stay petition and thereafter,
take up the contempt appeal. This request, in our considered opinion,
appears to be a genuine one and should have been considered by the learned
single Judge in the light of the judgment of Supreme Court in Quantum
Securities Private Limited and others v. New Delhi Television Limited2,
wherein it has been held as follows:
'22. We are also of the considered view that when the issue on
merits is seized of by the original court in civil suit/proceedings and
rights of the parties are still not decided on merits then it is not
proper for this Court to probe into the facts and record any finding
on any of the issues arising out of collateral proceedings such as the
one here else our observation may cause prejudice to the parties
while prosecuting their case before the original court on merits.
23. It is for these reasons we are of the considered opinion
that it would be apposite to request the learned Single Judge to
decide Notice of Motion No.1553 of 2013 renumbered as 488 of
2014 arising out of Civil Suit No.677 of 2013 renumbered as 284 of
2014 on merits in accordance with law preferably within three
months from the date of receipt of copy of this judgment. Till it is
decided, we are inclined to stay the contempt proceedings out of
which these appeals arise. After the disposal of the notice of motion,
the contempt proceedings may be decided in accordance with law
including its maintainability, etc.'
2 (2015) 10 SCC 602
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Contempt Appeal No.6 of 2019
7. That apart, in State of J and K v. Mohd. Yaqoob Khan and others3,
the Hon'ble Supreme Court has held as follows:
'5. We find great force in the argument of Mr. Salve that so
long the stay matter in the writ petition was not finally disposed of,
the further proceeding in the contempt case was itself misconceived
and no orders therein should have been passed. Mr. Bhandare
appearing on behalf of the writ petitioner, who is respondent before
us, has strenuously contended that the orders passed in the contempt
proceedings should be treated to have disposed of the stay matter in
the writ petition also. He laid great emphasis on the fact that the
counsel for the respondents in the writ petition had been heard
before the orders were issued. He invited our attention to the merits
of the claim. It is argued that the order dated March 19,1990 must,
in the circumstances, be treated to have become final and, therefore,
binding on the State and the High Court was right in issuing the
further direction by way of implementation of earlier order.
6. We do not agree. The scope of a contempt proceeding is
very different from that of the pending main case yet to be heard and
disposed of (in future). Besides, the respondents in a pending case
are at a disadvantage if they are called upon to meet the merits of
the claim in a contempt proceeding at the risk of being punished. It
is, therefore, not right to suggest that it should be assumed that the
initial order of stay got confirmed by the subsequent orders passed
in the contempt matter.
7. We, therefore, hold that the High Court should have first
taken up the stay matter without any threat to the respondents in the
writ case of being punished for contempt. Only after disposing it of,
the other case should have been taken up. It is further significant to
note that the respondents before the High Court were raising a
serious objection disputing the claim of the writ petitioner.
Therefore, an order in the nature of mandatory direction could not
3 (1992) 4 SCC 167
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Contempt Appeal No.6 of 2019
have been justified unless the Court was in a position to consider the
objections and record a finding, prima facie in nature, in favour of
the writ petitioner. Besides challenging the claim on merits, the
respondent was entitled to raise a plea of non-maintainability of a
writ application filed for the purpose of executing a decree. It
appears that at an earlier stage the decree in question was actually
put in execution when the parties are said to have entered into a
compromise. According to the case of the State the entire liability
under the decree (read with the compromise) has already been
discharged. The dispute, therefore, will be covered by Section 47 of
the CPC. It will be a serious question to consider whether in these
circumstances the writ petitioner was entitled to maintain his
application under Article 226 of the Constitution at all. We do not
want to decide any of these controversies between the parties at this
stage except holding that the orders passed in the contempt
proceeding were not justified, being pre-mature, and must, therefore,
be entirely ignored. The High Court should first take up the stay
matter in the writ case, and dispose it of by an appropriate order.
Only thereafter it shall proceed to consider whether the State and its
authorities could be accused of being guilty of having committed
contempt of Court.'
(emphasis supplied)
8. On the contrary, the learned single Judge has questioned the
appellants, who had appeared in person before him on 25.10.2019 and has,
on the same day, held them guilty of contempt and sentenced them as
aforesaid. It is seen that Arulnathan was 70 years old and Hepzibah Francis
was 65 years old when they appeared before the learned single Judge and
answered his questions.
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Contempt Appeal No.6 of 2019
9. In our opinion, the learned single Judge should have given the
appellants an opportunity to file their counter affidavit to the allegations in
the contempt petition and thereafter, should have decided on the desirability
of convicting or acquitting them. The appellants should have been given an
opportunity to at least tender their unconditional apology as envisaged by
the proviso and explanation to Section 12 of the Contempt of Courts Act. In
this case, this opportunity was not given to the appellants though their
counsel was persuading the learned single Judge that it will not be feasible
to implement the ex parte order of interim stay.
10. It may be relevant to state here that in paragraph No.16 of the
affidavit dated 25.10.2019 that has been filed by Arulnathan along with this
contempt appeal, he has tendered unconditional apology.
11. Mr.G.Sankaran, learned counsel appearing for the respondent,
contended that the explanation offered by the learned Senior Counsel for
CSI Diocese of Madras for not implementing the ex parte order of interim
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Contempt Appeal No.6 of 2019
stay was a smoke screen, which did not find favour with the learned single
Judge.
12. In our view, the explanation for not implementing the ex parte
order of interim stay should have been considered in the vacate stay
application and stay should have been made absolute. Even thereafter, if the
CSI Diocese of Madras had not implemented the order, then there was scope
for hauling them up under the Contempt of Courts Act, of course, subject to
their right to file a writ appeal under Clause 15 of the Letters Patent. In such
view of the matter, we find that the impugned order apparently looks
indefensible and therefore, it is set aside.
13. Be that as it may, during the course of hearing of this contempt
appeal, we passed the following order on 30.07.2021:
'During the course of hearing, Mr.Father Xavier Arul
Raj, Senior Advocate appearing for learned counsel on record
for the appellant stated that if the respondent joins in
Cuddalore and thereafter, gives an application for promotion,
the authorities will consider the same in accordance wit hthe
Rules and take a decision thereon.
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Contempt Appeal No.6 of 2019
Mr.Sankaran, learned counsel appearing for the
respondent stated that he will revert to the respondent and get
back.
Post on 13.08.2021.'
14. Pursuant to the above, on the advice of Mr.G.Sankaran, learned
counsel appearing for the respondent, Daniel has joined as Office Assistant
in CSI St.David's Higher Secondary School, Cuddalore, where he was
transferred by the order dated 15.06.2019.
15. Dr.Fr.Xavier Arul Raj, learned Senior Counsel appearing for the
appellants, fairly submitted that the CSI would not be vindictive to Daniel,
inasmuch as, it would go against the ethos of Christianity - 'if someone
slaps on one cheek, turn to them the other also'. Learned Senior Counsel
submitted that the authorities would consider promoting Daniel either as a
Lab Assistant or as a Junior Assistant in any one of the schools of the CSI
Dioceses. Of course, we do not treat this as an undertaking, but, we do hope
that the words of learned Senior Counsel would be honoured by the CSI
Diocese.
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Contempt Appeal No.6 of 2019
P.N.PRAKASH, J
and
S.SRIMATHY, J
gm
Accordingly, this Contempt Appeal is allowed. The order of this
Court dated 25.10.2019 passed in Contempt Petition No.1310 of 2019 is set
aside. Consequently, connected miscellaneous petitions are closed.
[P.N.P., J] [S.S.Y., J]
26.10.2021
Index: Yes/No
gm
Contempt Appeal No.6 of 2019
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