Contempt Case
Contempt Case
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Facts:
3. The petitioner, an Assistant Professor in an aided college, filed
W.P.(C)No.25527/2014, ventilating his grievance that the Government,
having granted the benefit of enhanced pay, now, after twelve years, is
taking steps to withdraw the said benefit. It is his particular grievance that
without taking recourse to due process of law, the Government has issued
directions to recover from him what is said to be the excess salary paid
earlier. Apprehensive of the coercive steps contemplated by the Government
in that regard, the petitioner sought an interim direction, which was given on
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matter by one more week. The matter, in course of time, underwent a few
more adjournments to enable the learned Government Pleader to have
instructions on the matter.
6. After all these adjournments, when I proposed to issue a notice,
the learned Government Pleader has requested me to dispense with the
presence of the respondent-contemnor. I told the learned Government
Pleader that even on instructions he could not deny the violation of the
interim direction given by the Court and that no justification was
forthcoming in that regard. I accordingly informed the learned Government
Pleader that the presence of the accused was going to be in accordance with
notice in Form I, and that I could not discern any specific reason to dispense
with the presence of the contemnor.
Submissions:
7. In that context, the learned Government Pleader has submitted
that a learned single Judge does not have the power to order the appearance
of the contemnor and that it is only a learned Division Bench of this Court
that has the power in terms of the contempt rules in force. Being not entirely
familiar with the Contempt of Courts (High Court of Kerala) Rules ('the
Rules' for brevity), I queried further. Lacking the power to order appearance
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of the contemnor, and at the same time, in terms of that 'lack of power',
being compelled to dispense with the presence of the contemnor, appeared to
me to be incongruous and incompatible. Once a learned single Judge does
not have the power to order appearance of the contemnor, ipso facto, the
necessity of dispensing with the contemnor's appearance is a contradiction in
terms. When I have expressed the same opinion, the learned Government
Pleader has placed reliance on Jyothilal K. R. v. Mathai M.J.2, a judgment
rendered recently by a learned Division Bench of this Court.
8. Given the fact that Jyothilal (supra) has been rendered by a
learned Division Bench, and further given the fact that statutory position
regarding the contempt jurisdiction of the Kerala High Court is apparently at
variance with that of most of the other High Courts, for example High Court
of Hyderabad for the States of Telengana and Andhra Pradesh, I requested
Dr. Satheesan, the learned Senior Counsel, to assist the Court as the Amicus
Curiae, in determining the correctness of the submission made by the
learned Government Pleader and also the application of the ratio of
Jyothilal, more particularly in the back drop of the statutory scheme
governing the issue.
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9. In fact, the learned counsel for the petitioner and the learned
Amicus Curiae have elaborately submitted on the issue, referring to a
profusion of precedents, all of which have been adverted to at appropriate
places in the discussion. Accordingly, before proceeding further to
determine the issue, I place on record the Court's appreciation for the able
and commendable assistance rendered by the learned Amicus Curiae.
Stare Decisis - Irreconcilability:
10. It is elementary that in a judicial system governed by the
doctrine of stare decisis, a decision rendered by a bench of larger
composition squarely binds a bench of smaller composition. It is inadvisable
to take recourse to the devise of per incuriam, unless the decision of the
larger Bench was rendered in ignorance of another decision by a still larger
Bench or by the Hon'ble Supreme Court. Nor is it desirable to take recourse
to stealth overruling. In that regard, the courts have served a word of caution
to protect the judicial propriety and predictability, as well as certainty, that it
is always advisable to take as binding the decision of the Bench of the
superior strength. The Hon'ble Supreme Court has, however, provided one
exception to this principle of stare decisis.
11. On the issue of a learned single Judge doubting the correctness
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(2007) 14 SCC 94
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was a delay of 25 days in filing the appeal. The Court has further observed
that the same Hon'ble Judge in several other cases also summoned the Chief
Secretary to appear before him personally.
23. Now, I may refer to the observations of the Hon'ble Supreme
Court in the above factual back drop.
7. There is no doubt that the High Court has power to
summon these officials, but in our opinion that should be
done in very rare and exceptional cases when there are
compelling circumstances to do so. Such summoning
orders should not be passed lightly or as a routine or at
the drop of a hat.
xxxxxx
10. Hence, frequent, casual and lackadaisical summoning
of high officials by the Court cannot be appreciated. We
are constrained to make these observations because we
are coming across a large number of cases where such
orders summoning of high officials are being passed by
the High Courts and often it is nothing but for the ego
satisfaction of the learned Judge.
11. We do not mean to say that in no circumstances and
on no occasion should an official be summoned by the
Court. In some extreme and compelling situation that
may be done, but on such occasions also the senior
official must be given proper respect by the Court and he
should not be humiliated. Such senior officials need not
be made to stand all the time when the hearing is going
on, and they can be offered a chair by the Court to sit.
They need to stand only when answering or making a
statement in the Court. The senior officials too have their
self-respect, and if the Court gives them respect they in
turn will respect the Court. Respect begets respect.
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(emphasis added)
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to a later case, the Courts must carefully try to ascertain the true principle
laid down by the decision of the Court and not to pick out words or
sentences from the judgment, divorced from the context of the questions
under consideration by the Court, to support their reasoning. (see CIT v.
Sun Engg. Works (P) Ltd. (1992) 4 SCC 363).
26. Every judgment must be read as applicable to the particular
facts proved, or assumed to be proved, since the generality of the
expressions which may be found there are not intended to be expositions of
the whole law, but governed and qualified by the particular facts of the case
in which such expressions are to be found. The other is that a case is only an
authority for what it actually decides. [Lord Halsbury in Quinn v. Leathem
(1901 AC 495) quoted with approval in Balwant Rai Saluja v. Air India
Ltd., (2014) 9 SCC 407.]
Statutory Scheme:
27. When the statutory scheme is examined, it is clear that notices
are issued to the contemnor at three stages. Initially, before the learned
single Judge for forming a prima facie opinion, or, in other words, at the
initial stage enabling the learned Judge to form an opinion. Later, once he
forms a prima facie opinion, in the event either the contemnor has not
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tendered an apology or the one tendered has not been to the satisfaction of
the learned single Judge, the case will be referred to a learned Division
Bench. Issuing notice for the second time is to enable the learned Division
Bench to form a prima facie opinion. Assuming that, the learned Division
Bench, too, forms a prima facie opinion about the contempt, the third
occasion arises. This will be the stage when the learned Division Bench
takes cognizance of the contempt. Thus arises the need for issuing notice for
the third time.
Issue in Perspective:
28. According to Jyothilal (supra), when the matter is placed before
the learned Division Bench, unless the appearance is dispensed with, the
contemnor is required to appear before the Court on every hearing. Now, the
issue is whether the Rules per se make any such distinction? If they do,
whether the contemnor is required to appear before the Division Bench,
unless his presence is dispensed with, at pre-cognizance stage or postcognizance stage or on both occasions?
29. Now, what is required to be examined is while issuing notice
either for prima facie satisfaction of the learned Single Judge on one hand,
or that of the learned Division Bench initially, or during the enquiry by the
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Division Bench after taking cognizance of the contempt, on the other hand,
has there been any dichotomy of procedure mandated under the Rules?
Discussion:
30. If we examine the constitutional contours of the issue, Article
214 thereof deals with establishment of High Courts for States. Following it
is Article 215, which declares a High Court to be a Court of Record. Article
216 speaks of the composition of High Court as comprising a Chief Justice
and such other Judges, la the puisne Judges. Thus, the High Court as a
Court of Record comprises a Chief Justice and other Judges who are
appointed to the said Court by the President from time to time. Article 225,
which deals with the jurisdiction of the existing High Courts, is not relevant
for our purpose, as High Court of Kerala is a post-constitutional High Court.
31. In fact, in High Court of Judicature at Allahabad v. Raj
Kishore Yadav7, the Hon'ble Supreme Court, after referring to the
Government of India Acts of 1915 and 1935, the precursors of the Indian
Constitution, has held as follows:
[A] conjoint reading of Section 108 of the Government
of India Act, 1915, Section 223 of the Government of
7
(1997) 3 SCC 11
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33. In the light of the above ratio, it can safely be concluded that
hearing of civil contempt case by a Bench of the High Court other than the
one that had passed the order, the non-compliance of which is in issue, is not
going to affect the jurisdiction of the High Court as a superior court of
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record.
34. Insofar as the Kerala High Court Contempt Rules are
concerned, somewhat uniquely, there is a dichotomy of adjudication. It is
not the case of transfer of adjudication from one bench to another bench, but,
on the contrary, the rules contemplate two-tier adjudication of the same issue
with division of proceedings. There does not seem to be any dispute on this
count either. The issue is what powers can a learned single Judge exercise
while dealing with contempt jurisdiction under Article 215 read with Section
12 of Contempt of Courts Act, 1971 and the Kerala High Court Contempt
Rules?
Rules that govern the issue:
35. Not much of controversy having arisen regarding the principal
legislation, i.e., the Contempt of Courts of Act, 1971, we may focus on the
delegated legislation, the Contempt of Courts (High Court of Kerala) Rules,
1975 ('the Rules' for brevity).
36. Rule 6 concerns itself with taking cognizance to the effect that
every proceeding for contempt shall be dealt with by a Bench of not less
than two Judges. Inter alia, Rule 6 has a proviso attached to it and it reads
thus:
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37. Proviso to Rule 6 envisages the following steps: (1) the learned
Single Judge shall hold a preliminary enquiry in the matter; (2) on such
preliminary enquiry, if he is satisfied that no prima facie case has been made
out, or it is not expedient to proceed with the matter, he may dismiss the
petition; (3) if a prima facie case made out, an order to that effect is required
to be passed and made available to the respondent; (4) on receipt of the said
order, the respondent may or may not tender an unconditional apology; (5) if
tendered, the apology ought to be to the satisfaction of the learned Judge; (6)
either if it is not to the satisfaction of the Judge or not at all tendered, the
Judge may direct that the matter be posted before the Bench dealing with
contempt matters.
38. Rule 7, on the other hand, deals with initiation of suo motu
proceedings. The rule, in fact, mandates that any information other than a
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the proviso) get directed by the Hon'ble the Chief Justice on administrative
side to decide an issue of contempt.
41. A seven-Judge Bench of the Hon'ble Supreme Court in SBP &
Co. v. Patel Engg. Ltd.8 quotes with approval the ratio of the English Court
in Attorney General of the Gambia v. Pierre Sarr N'jie9. In Patel Engg.,
one of the issues was whether the Chief Justice exercises judicial power or
administrative power under Section 11(6) the Arbitration & Conciliation
Act, 1996. It pays to quote the ratio of Pierre Sarr Njie as extracted in Patel
Engg.:
In Attorney General of the Gambia v. Pierre Sarr
N'jie 1961 App Cas 617 the question arose whether the
power to judge an alleged professional misconduct could
be delegated to a Deputy Judge by the Chief Justice who
had the power to suspend any barrister or solicitor from
practicing within the jurisdiction of the court. Under
Section 7 of the Supreme Court Ordinance of the
Gambia, the Deputy Judge could exercise "all the judicial
powers of the Judge of the Supreme Court". The question
was, whether the taking of disciplinary action for
professional misconduct; was a judicial power or an
administrative power. The Judicial Committee of the
Privy Council held that a judge exercises judicial powers
not only when he is deciding suits between the parties but
also when he exercises disciplinary powers which are
properly appurtenant to the office of a judge. By way of
illustration, Lord Dining stated "Suppose, for instance,
that a judge finding that a legal practitioner had been
8
9
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42. In fact, the Hon'ble Supreme Court has tellingly observed to the
effect: (paragraph 8) :
[O]nce a statute creates an authority, confers on it power
to adjudicate and makes its decision final on matters to be
decided by it, normally, that decision cannot be said to be
a purely administrative decision. It is really a decision on
its own jurisdiction for the exercise of the power
conferred by the statute or to perform the duties imposed
by the statute. Unless, the authority satisfies itself that the
conditions for exercise of its power exist, it could not
accede to a request made to it for the exercise of the
conferred power.
Paradox:
43. The paradox is that under Rule 6, on a complaint, a learned
Judge or learned Judges, as the case may be, can prima facie decide whether
the charge of contempt can be maintained, which is thus a judicial
adjudication, but once the same Judge or Judges suo motu feel that there is
an element of contempt in the action of a party to a lis and that it needs to be
adjudicated upon, the matter, then, is required to be placed before the Chief
Justice on administrative side.
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notice to the respondent, and the satisfaction should be based on the material
available on the record. Even in that event, to accept or not to accept the
apology, the respondent is required to be put on notice. To expect the
respondent to tender an unconditional apology, is it not requisite to hear him
before hand? Which is the notice that is required to be issued under Rule 6,
if not the one contemplated under Rule 9? These are the questions that press
themselves for an answer.
47. If Rule 9 also applies to Rule 6 proceedings, the incongruity is
that whenever Form No.I notice is issued, after the prima facie satisfaction, a
judge is required to pass an order dispensing with the presence of the
putative contemnor. Going by Jyothilal, when no such power is existing to
be exercised by the Judge, the question of his dispensing with it while
issuing Form No.I notice is a contradiction in terms.
48. In a conspectus, it may have to be stated, based on the rules
discussed so far, there are two types of hearing; namely, preliminary hearing
as is evident from Rule 9 by a learned Single Judge, and later main hearing
by a learned Division Bench. In both the cases notice is required to be given.
49. Section 11 contemplates coercive steps to be taken once the
Court has reason to believe that the respondent has absconded or otherwise
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57. In the facts and circumstances, though discussion has been made
both on Rules 6 and 7 of the the Contempt of Courts (High Court of Kerala)
Rules, in the present factual circumstance, any reference to Rule 7 can only
be an academic exercise, which is, acceptably, impermissible. Rule 6 and the
other concomitant issues alone fall for consideration. Thus, I formulate the
following question for reference:
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