Amplitude & Parameters of Contempt Jurisdiction [Case Law]

Contempt of Court's Act, 1971 - S. 17 - Administrative Tribunal's Act, 1985 - S. 17 - Persons With Disabilities Act, 1986 - Amplitude and parameters of contempt jurisdiction.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.R. RAMACHANDRA MENON & DEVAN RAMACHANDRAN, JJ.

O.P. [CAT] No.3 of 2018

Dated this the 23rd day of February, 2018 

OA 24/2014 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH 

PETITIONER(S) 

1 SUBHASH CHANDRA GARG, SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF ECONOMIC AFFAIRS, NORTH BLOCK, NEW DELHI-110 001.

2 SHRI.YASHVIR SINGH, FORMER DIRECTOR (IES), MINISTRY OF FINANCE, DEPARTMENT OF ECONOMIC AFFAIRS, NORTH BLOCK, NEW DELHI-110 001.

3 MS.ARCHANA MAYARAM, DIRECTOR (IES), MINISTRY OF FINANCE, DEPARTMENT OF ECONOMIC AFFAIRS, NORTH BLOCK, NEW DELHI-110 001.

BY ADVS.SRI. R.V.SINHA SRI. SHAJI.M.A 

RESPONDENT

VIJITH KRISHNAN

BY ADVS. SRI.P.NANDAKUMAR SRI.S.ANEESH SMT.AMRUTHA SANJEEV

J U D G M E N T 

Devan Ramachandran, J.

A very rudimentary point, relating to the amplitude and parameters of contempt jurisdiction, once again calls attention in this case: Can a Court or Tribunal, exercising powers under this jurisdiction, issue fresh or even supplemental orders, which are at variance or are intended to expand the nature of the original order or judgment, the disobedience of which has lead to the filing of the contempt petition? Why “once again”?; because this question has engaged Courts several times before and every time the answer has been to the negative.

2. This issue, presents in this case on account of its fact that a certain Sri.Vijith Krishnan, the respondent herein, had appeared for the written examination of the Indian Economic Service, conducted by the UPSC in December, 2012, aspiring for appointment to such service. He was found to have been qualified, but immediately prior to the process of appointment, it was noticed that the respondent was suffering from congenital cataract and, therefore, that he was visually impaired. The concerned Ministry, therefore, thought it appropriate to subject the respondent to an ocular assessment by a competent Medical Board for evaluation of his visual impairment and to suggest appropriate remedial measures. It transpires that the respondent was thereafter subjected to such an assessment and that the Medical Board entered into a conclusion that he was suffering from congenital cataract of both eyes with Optic Disc Hypoplasia. The Board concluded that he should be advised to undergo cataract surgery with Intra Ocular Lens Implantation. The Board also opined that the prognosis was guarded, presumably on account of the other health parameters of the respondent.

3. The respondent's specific assertion, however, with regard to the above opinion of the Medical Board is that his father and his paternal aunt were also suffering from the Congenital Cataract and that they lost their eye sight on account of corrective surgery. His apprehension is that if he is forced to such a correction, it would also result in his blindness. He, therefore, asserts that he should be assessed for visual impairment, without having to go through a corrective surgery as recommended by the Medical Board. When the Authorities refused to do so, he approached the learned Central Administrative Tribunal, Ernakulam Bench by filing O.A. No.24 of 2014, praying that he be appointed against a vacancy reserved for persons of disability under the category of visually impaired candidate. The learned Tribunal, after consideration of the various contentions raised before it by the parties, issued an order dated 07.07.2015, finally disposing of the original application, directing the 2nd respondent therein to refer the respondent to the Appellate Medical Authority for evaluating the actual percentage of visual disability and “based on the same, the 2nd respondent will issue appropriate orders”.

4. It transpires from the pleadings that the respondent was thereafter subjected to an assessment by the Appellate Medical Board, which also concluded that, in the absence of a corrective cataract surgery, it would be impossible to assess his ocular condition relating to impairment, but it was nevertheless opined that without such a corrective measure, he should be seen to be a person with a 40% visual impairment. The documents indicating this have been placed before the Tribunal and are marked as Ext.P8 in this original petition.

5. The respondent, on the accusation that the original order of the Tribunal, dated 07.07.2015, has not been completely complied with, because “no appropriate orders have been issued by the 2nd respondent therein”, filed a petition, seeking to initiate action for contempt, numbered as Contempt Petition (Civil) No.103/2016 in the aforementioned OA, which led to Ext.P1 order. As per this order, the Tribunal, after taking into account its earlier directions in its original order, issued an affirmative direction to the 2nd petitioner herein, to issue an appointment order to the respondent “in compliance with the decision in OA No.24 of 2014 within ten days of receipt of copy of this order, without fail”. The contempt petition was thereafter disposed of in terms of these directions.

6. Subsequent to the order of the learned Tribunal in the contempt petition, instead of challenging that order, the petitioners approached this Court by filing OP(CAT) No.309 of 2017, impugning the order of the Tribunal in the Original Application, dated 07.07.2015. This original petition was heard by a Bench of this Court and it was noticed that the challenge against the order of the learned Tribunal in the Original Application was completely unnecessary because all that was directed therein was to refer the respondent to an Appellate Medical Board and then to pass appropriate orders. This Court found that since the said order had not directed that the respondent be appointed affirmatively, it was unnecessary for the petitioners herein to have challenged the said order and thus closed the said original petition, however reserving liberty to them to challenge the order of the learned Tribunal in the contempt petition in appropriate proceedings. The petitioners say that they have filed the present proceedings, challenging the directions contained in the order of the learned Tribunal in the contempt petition, on the strength of the above said directions contained in Ext.P12 judgment.

7. We have heard the learned counsel for the petitioners as well as the learned counsel appearing for the respondent.

8. The narration of facts, as recorded above, would make it luculent that in obedience to the order of the learned Tribunal in the OA, the petitioners herein referred the respondent to an Appellate Medical Board to have his visual impairment assessed. It is also conceded by the respondent that he was thus referred to an Appellate Medical Board, but he contends that after such reference was made, no further orders have been issued by the competent Authorities, including the petitioners herein. He says that he was, therefore, constrained to approach the learned Tribunal with the contempt petition and according to him, the present order of the learned Tribunal is only in furtherance of the earlier directions contained in order dated 07.07.2015, in the O.A.

9. Sri.Nandakumar, the learned counsel appearing for the respondent, points out that in the first order of the learned Tribunal dated 07.07.2015, a copy of which is appended as Ext.P5 in this proceedings, two-fold directions were given to the petitioners herein. He says that the first limb of the direction was certainly to refer the respondent to the Appellate Medical Board and that the second limb of the direction was to issue an appropriate order. He contends that the petitioners herein, instead of complying with the second limb of the directions, refused to pass any further orders, thus compelling the respondent to approach the learned Tribunal with the contempt petition. As per him, in such singular circumstances, the learned Tribunal was wholly justified in issuing an affirmative order in the contempt petition to appoint his client, because, the only option available to the respondent, after having found that this client had a 40% visual impairment, was to consequentially appoint him under the provisions of the Persons With Disabilities Act, 1986 (for brevity, the PWD Act).

10. Mr.Sinha, the learned counsel appearing for the petitioners, began his submissions by saying that the order now issued by the learned Tribunal and impugned before this Court, namely Ext.P1, is grossly improper and impermissible. According to him, the learned Tribunal has transgressed its jurisdiction, in having issued a supplemental or a fresh order as if it was hearing the original application afresh, in a contempt petition. He states that the original direction in the order of the Tribunal in the O.A., dated 07.07.2015, was only to refer the respondent to an Appellate Medical Board and to thereafter to pass appropriate orders. He says that the present order, which directs the petitioners herein to appoint the respondent, is in deviation to the original order and amounts to a fresh set of directions, which is not sanctioned under the provisions of Section 17 of the Administrative Tribunal's Act, 1985 (for brevity, the Tribunal's Act), or Section 17 of the Contempt of Court's Act, 1971. He says that the order of the Tribunal in the O.A., dated 07.07.2015, has been substantially complied with by the petitioner they referred the respondent to the Appellate Medical Board and he adds that it was only because of the inconclusive view taken by the said Board, which in turn is on account of the intractability of the respondent in committing himself to a corrective cataract surgery that the petitioners were incapacitated from passing any further orders. He then maintains, with great vehemence, that the spirit of the directions of the learned Tribunal in Ext.P5 order, dated 07.07.2015, was to assess the impairment of the respondent after a corrective surgery.

11. Sri.Nandakumar, the learned counsel for the respondent resolutely opposes the above submissions of Sri.Sinha and asserts that it is not available for the petitioner in service jurisprudence or even from the touchstone of human rights to compel a person to undergo a surgery before his impairment is evaluated. According to him, the learned Tribunal had accepted his contention that a surgery would cause him irreversible prejudice and it is, therefore, that directions were given in Ext.P5 order, dated 07.07.2015, to the petitioners to assess the impairment as matters now stand without subjecting his client to a surgery. The learned counsel adds that since all the Medical Boards, including the present Appellate Medical Board, concludes that his client has atleast 40% ocular impairment, thus bringing him under the ambit of Section 2(t) of the PWD Act, it is only a corollary consequence that he should be issued with an appointment order. He reaffirms that the learned Tribunal has done nothing wrong, but that it has only acted in furtherance of the directions contained in Ext.P5 order dated 07.07.2015.

11. Sri.V. Sinha, the learned counsel for the petitioners, on the question of law involved, cites several judgments. According to him, it is now a settled position in law, as has been declared unequivocally and conclusively by the Hon'ble Supreme Court in several judgments, that no Court can pass incidental, supplemental or fresh orders while acting in contempt jurisdiction. He cites V.M. Manohar Prasad v. N. Ratnam Raju & Another [(2004) 13 SCC 610] and asserts that the Hon'ble Supreme Court is emphatic in declaring that a Court acting under contempt jurisdiction cannot pass any supplemental order to the main order. He refers to paragraph 7 of the judgment, wherein the Hon'ble Supreme Court has said that, “there is no doubt about the position under the law that in contempt proceedings no further directions could be issued by the Court. In case it is found that there is violation of the order passed by the Court the Court may punish the contemnor otherwise notice of contempt is to be discharged. An order passed in the contempt petition, could not be a supplemental order to the main order granting relief.” 

12. Sri.Sinha further cites Sudhir Vasudeva & Others v. M.George Ragishekaran & Others [(2014) 3 SCC 373] in furtherance of the same submission and points out to us that in paragraph 19 of the said judgment, the view of the Hon'ble Supreme Court is absolutely without doubt. Since he relies on the declaration of law as contained in paragraph 19 of the said judgment, we deem it appropriate to extract the same for a full reading: 

“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 selfdetermination 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 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, V.M. Manohar Prasad v. N. Ratnam Raju, Bihar Finance Service House Construction Coop.Society Ltd. V. Gautam Goswami and Union of India v. Subedar Devassy P.V.” 

13. To add strength to his contentions, Sri.Sinha, thereafter, relies on T. Sudhakar Prasad v. Government of A.P. & Others [(2001) 1 SCC 516] and invites our attention to paragraphs 17 and 19 of the said judgment to drive in the same principles of law and he submits that this judgment, in addition, also takes care of the incidental submission made by the learned counsel appearing for the respondent regarding the maintainability of this original petition and the jurisdiction of this Court in considering the same. We will come to that issue in the later part of this judgment.

14. We will presently consider the validity of the submission with respect to the power of the Tribunal in having passed supplemental directions in Ext.P1 order. As we have already indicated above, the submission of Sri.Nandakumar, the learned counsel for the respondent, is not that the learned Tribunal has issued any supplemental or fresh orders. His specific contention is that the learned Tribunal has only passed Ext.P1 order in continuation and furtherance to the directions contained in Ext.P5 order dated 07.07.2015 and according to him, therefore, the judgment cited by the learned counsel for the petitioner would have no application at all. According to him, there is no reason for the petitioners to take umbrage to the directions in Ext.P1 order, since they are only corollary to the second limb of the directions in Ext.P5 order, dated 07.07.2015, wherein appropriate orders were directed to be issued by the petitioners herein. Mr.Nandakumar ingeminates that appropriate orders, in the circumstances, would only mean an order of appointment.

15. We are unable to accede to the submissions of Sri.Nandakumar on this issue. We have seen Ext.P5 order of the learned Tribunal, dated 07.07.2015, very carefully and the present impugned order, dated 31.08.2017. While the first order directed the respondent be referred to an Appellate Medical Board and the the petitioners to thereafter issue an appropriate order, the present order goes a step forward and directs that the respondent be issued an order of appointment. By no stretch of imagination can the submissions of Sri.Nandakumar be countenanced that this is only a corollary direction to the directions contained in Ext.P5 order, dated 07.07.2015. We have no doubt in our mind, as it becomes discernible from even a plain reading of the impugned order, that this amounts to a supplemental, if not a fresh direction and going by the ratio in the judgments afore-cited, it was impermissible for the Tribunal to have issued such directions, which can only amount to a transgression of the parameters of jurisdiction invested on it, while acting under Section 17 of the Tribunal's Act and Section 19 of the Contempt of Courts Act, 1971.

16. That being so concluded, we are certainly cognizant that Sri.Nandakumar has a specific case that notwithstanding the above, this writ petition is not maintainable, because an order passed by the learned Tribunal under Section 17 of the Tribunal's Act can be appealed against only before the Hon'ble Supreme Court. He relies on a Division Bench judgment of this Court in Chandrasekharan Pillay v. Krithivasan [2001 (2) KLT 179] and the judgment of the Hon'ble Supreme Court in Mohajan R. & Others v. Shefali Sengupta & Others [(2012) 4 SCC 761] to garner support for his contention that an order passed by the Tribunal, while acting under contempt jurisdiction, cannot be challenged before this Court.

17. We have considered the submission of Sri.Nandakumar and we have also read the judgments cited above with great amount of care. We are afraid that on a close reading of the judgments, the proposition of law, as has been declared by the Hon'ble Supreme Court, is not in the manner as has been stated by Sri.Nandakumar. We say this because, the settled position of law, now going by the aforesaid judgments and by two other judgments, to which we will refer presently, is that an order of punishment or an order refusing punishment by a Tribunal while acting under Section 17 of the Tribunal's Act cannot be challenged before the High Court, since Section 19 of the Contempt of Courts Act, 1971 makes such action available only before the Hon'ble Supreme Court. Interestingly, there is no inhibition in the Tribunal's Act from approaching the High Court, but the restriction is contained in Section 19 of the Contempt of Courts Act, 1971, where the provision for an appeal has been mandated to lie only to the Hon'ble Supreme Court, against an order or decision of the High Court in exercise of the jurisdiction to punish for contempt. This principle was enunciated by the Hon'ble Supreme Court in T. Sudhakar Prasad [supra] and Sujitendra Nath Singh Roy v. State of West Bengal & Others [(2015) 12 SCC 514]. The relevant portion of paragraph 17 of the judgment n T. Sudhakar Prasad [supra] is extracted hereunder: 

“The question of any order made under the provisions of the Contempt of Courts Act, 1971 by a Member of the Tribunal sitting singly, if the rules of business framed by the Tribunal or the appropriate Government permit such hearing, being subjected to an appeal before a Bench of two or more Members of the Tribunal therefore does not arise. Any order or decision of the Tribunal punishing for contempt is appealable under Section 19 of the Act to the Supreme Court only. The Supreme Court in the case of L.Chandra Kumar has nowhere said that orders of the Tribunal holding the contemner guilty and punishing for contempt shall also be subject to judicial scrutiny of the High Court under Articles 226/227 of the Constitution in spite of remedy of statutory appeal provided by Section 19 of the Contempt of Courts Act being available. The distinction between orders passed by the Administrative Tribunal on matters covered by Section 14(1) of the Administrative Tribunals Act and orders punishing for contempt under Section 19 of the Contempt of Courts Act read with Section 17 of the Administrative Tribunals Act, is this: as against the former there is no remedy of appeal statutorily provided, but as against the latter statutory remedy of appeal is provided by Section 19 of the Contempt of Courts Act itself.” 

18. Further, in Sujitendra Nath Singh Roy [supra] the same principle was reiterated in paragraph 5 therein, which is as under: 

“5. There is no caveat to the proposition of law that under Section 19 of the Contempt of Courts Act, 1971 an appeal lies before the Supreme Court only against such order of the High Court which imposes punishment for contempt and no appeal will lie against an interlocutory order or an order dropping of refusing to initiate contempt proceedings. This was clearly laid down in State of Maharashtra v. Mahboob S. Allibhoy. This view was also followed in several cases including in Midnapore Peoples Coop.Bank Ltd. v. Chunilal Nanda.” 

19. In this judgment, the Hon'ble Supreme Court certainly said that there is no caveat to the proposition in law that under Section 19 of the Contempt of Courts Act, 1971, an appeal will lie to the Supreme Court only against an order imposing punishment but not droping or refusing to initiate contempt proceedings. This is the same view as has been voiced by this Court in Chandrasekharan Pillay [supra]. The position of law, therefore, becomes ineluctable that when a Tribunal passes an order either punishing or refusing to punish a contemnor in a contempt petition, such orders would be amenable to a challenge only before the Hon'ble Supreme Court and not before this Court.

20. The question that then presents before us is as to whether Ext.P1 can be construed to be such an order and whether the learned Tribunal has exercised its jurisdiction under Section 17 of the Tribunal's Act or under Section 19 of the Contempt of Courts Act, 1971. We are afraid that, even on a cursory reading of the said order, the learned Tribunal has neither punished the contemnor nor dropped such action against them. What it has, in fact, done is to issue a supplemental, if not fresh order, virtually modifying its directions contained in Ext.P5 order, dated 07.07.2015, thereby virtually exercising review of its own order without having any forensic power to do so. To exacerbate the problem, this has been done by it in a contempt petition, while exercising powers under Section 17 of the Tribunal's Act which clothes it only with the jurisdiction to punish or not to punish the contemnor. We, therefore, cannot find accord to the submission of Sri.Nandakumar that this original petition is not maintainable or that we are restricted or bridled in any manner from exercising jurisdiction under Article 227 of the Constitution of India, while dealing with its validity.

21. The above being said, it now brings us to the issue as to how the present order of the Tribunal impugned before us has to be dealt with. It is beyond contest before us that Ext.P1 proceedings has been issued in contempt proceedings. As we have already said above, the best that the Tribunal could have done, if it thought that its orders had not have been complied with, was to either punish or pass orders akin to such punishment against the petitioners or to drop the same. However, what the learned Tribunal has done in this case is to pass a supplemental order modifying its original order, thus even altering the substratum of the contempt action, since what is alleged before the Tribunal is only that the original order has not been complied with.

22. Further as has been submitted before us by the learned counsel for the petitioners, the original order has been complied with in part, with respect to its first limb of having the respondent referred to the Appellate Medical Board, and, therefore, the only allegation against its non-compliance is now confined to the second limb that the Authorities ought to have thereafter passed an appropriate order. That being so, we approve the submission of Sri.Nandakumar that, since the petitioners have not yet passed an appropriate order as directed in Ext.P5, a contempt petition was certainly maintainable. But the question is whether the Tribunal was correct in issuing Ext.P1 order, directing the petitioners to issue a fresh order appointing the respondent. This part of the direction in Ext.P1 order, to our mind, is totally without jurisdiction and impermissible in law. However, since the allegation that the petitioners have not yet issued an appropriate order in terms of Ext.P5 directions of the Tribunal is more or less uncontested, we are strongly of the view that they ought to have been directed either to issue such an order by the Tribunal, which would have been only in furtherance of its earlier directions, or to have initiated action for contempt. Neither of this has been done by the learned Tribunal, but it has gone ahead and issued Ext.P1 order containing fresh directions.

23. In the abstract of our holdings and observations above, it becomes ineluctable that Ext.P1 order, in the manner it has been issued now, would not obtain favour in law and would, therefore, have to be set aside. However, that is not to say that the petitioners herein can be allowed to walk free as if nothing further remains for them to do pursuant to the directions in Ext.P5 order. Since the directions in Ext.P5 was to the 2nd petitioner herein to issue appropriate orders after obtaining the report from the Appellate Medical Board, it was certainly enjoined upon him to have done that and his refusal to do so, for whatever be the reason, would have to be viewed seriously by us. We do not say anything further, since we are of the opinion that it will apposite at this stage to allow him one more opportunity, solely by way of lenity and indulgence, so as to enable him to comply with the directions of the learned Tribunal in Ext.P5 order.

24. We thus order this original petition, setting aside Ext.P1 to the extent to which the petitioners herein have been directed to issue orders of appointment to the respondent, but further commanding the 2nd petitioner to issue an appropriate order, in terms of the opinion received by them from the Appellate Medical Board, to the respondent, as directed in Ext.P5 order of the Tribunal in the OA, as expeditiously as possible, but not later than two weeks from the date of receipt of a certified copy of this judgment.

25. We caution that any failure in adhering to these directions in its letter and spirit, would visit the petitioners with consequences of such nature, as is permitted to be issued by this Court under the Contempt of Courts Act, 1971.

26. Since Ext.P2 is an order issued by the learned Tribunal consequential to Ext.P1 order passed on 04.12.2017, whereby notice under Rule 8 has been issued to the petitioners herein, it is only in the fitness of things that we vacate the said order also, since its foundation already been obliterated on account of us setting aside Ext.P1 herein.

This writ petition is thus ordered, but we refrain from making any order as to costs and direct the parties to suffer their respective costs.