Katakey, J.
1. This appeal, by the contemnors, is directed against the order dated 30.09.2011 passed by the learned Single Judge recording prima facie satisfaction of commission of contempt of Court in violating the order dated 26.08.2010 passed in WP(C) No.378/2010 and drawing up the contempt proceeding against them, which was registered and numbered as Cont.Cas(C) No.20/2010, and asking them to show-cause as to why action under Section 12 of the Contempt of Courts Act, 1971 (in short the 1971 Act) shall not be taken and appropriate punishment for contempt of court shall not be awarded.
2. The facts relevant for the purpose of the present appeal may be noticed as under:
(i) The Govt. of Tripura, Education (School) Department, vide notification dated 16.04.2007, initially brought the New Hindi Secondary (Hindi and English medium) School, Khejurbagan, Agartala, under the State Grant-in-Aid scheme of the Education (School) Department w.e.f. 01.04.2007, thereby bringing all the existing 23 nos. of teaching and 7 nos. of non-teaching staff, who were on fixed pay, under the purview of the Grant-in-Aid scheme. Since the benefit of the said notification was not disbursed, a writ petition, being WP(C) No.360/2008, was filed by the teaching and non-teaching staff of the said school for issuance of a direction to the respondent authorities to grant the said benefit, wherein an interim order dated 18.12.2008 was passed directing the State respondents to release the arrear pay of the teaching and non-teaching staff of the school for the period from 01.04.2007 to 31.10.2008 within a period of 2(two) months. The said order was put to challenge in Writ Appeal No.1/2009 by the State respondents, which was allowed vide order dated 11.02.2009 by setting aside the said order taking into consideration the notification dated 17.12.2008 withdrawing the earlier notification dated 16.04.2007 and requesting the learned Single Judge to dispose of the writ petition expeditiously.
(ii) C.M. Appl. No.25/2009 was, thereafter, filed by the petitioners in WP(C) No.360/2008 for stay of the said notification dated 17.12.2008. A Single Bench of this Court vide order dated 24.02.2009 stayed the effect and operation of the said notification dated 17.12.2008. The State respondents then preferred Writ Appeal No.9/2009 against the said interim order dated 24.02.2009. A review petition No.5/2009 was also filed by the writ petitioners in the said writ petition seeking review of the order dated 11.02.2009 passed by a Division Bench of this Court in Writ Appeal No.1/2009. Both the writ appeal and the review petition were disposed of by a Division Bench on 02.04.2009 requesting the learned Single Judge to expedite the hearing of the writ petition, without, however, interfering with the interim order dated 24.02.2009 passed in the writ petition.
(iii) Meanwhile, the present respondent i.e. the Managing Committee of the school filed WP(C) No.235/2009 praying for the same reliefs as in WP(C) No.360/2008. Both these writ petitions were taken up for hearing together by a Single Bench of this Court, which were partly allowed vide common judgment and order dated 29.01.2010 quashing the order dated 17.12.2008 and directing the State respondents to give reasonable opportunity, in compliance of Rule 10 of the Grants-in-Aid Rules, 2005, to the school by allowing them to file documents and pleadings and to pass necessary order relating to withdrawal/cancellation of the notification dated 16.04.2007. It was, however, made clear that the school during that period shall be under Grant-in-Aid scheme, leaving it open to the wisdom of the State respondents to decide the quantum of the arrear pay and allowances of the teaching and non-teaching staff of the school and also the date of implementation of the mid day meal scheme in the primary section of the school, within 3(three) months from the date of receipt of the certified copy of the judgment and order.
(iv) The Director, School Education, thereafter, on 30.07.2010 passed an order withdrawing the Grant-in-Aid status of the school, which was earlier granted w.e.f. 01.04.2007 vide notification dated 16.04.2007. The present respondent filed WP(C) No.372/2010 challenging the said order dated 30.07.2010. A Single Bench of this Court on 26.08.2010 passed an interim order suspending the operation of the said order dated 30.07.2010 and directing the State respondents to take up the follow up action consequent upon the suspension of the operation of the impugned order. Liberty, however, was granted to the respondents to file application for modification of the interim order passed. The State respondents though filed an application for vacating the said interim order, the same, however, was rejected. The writ appeal before the Division Bench of this Court as well as the Special Leave to Appeal before the Apex Court though filed were also dismissed.
(v) As the respondents in the writ petition/appellants in the present appeal did not comply with the interim order dated 26.08.2010, the respondent herein filed an application under Section 12 of the 1971 Act for drawing up contempt proceeding against the present appellants alleging willful and/or deliberate violation of the said interim order passed in WP(C) No.372/2010. Vide order dated 16.09.2010 a Single Bench of this Court directed issuance of notice to the present appellants to show-cause as to why the contempt proceeding should not be initiated and accordingly they entered appearance and filed their show-cause. The learned Single Judge upon hearing the learned counsel for the parties and on consideration of the materials made available before him passed the order dated 30.09.2011 recording prima facie satisfaction of willful and/or deliberate violation of the Courts order dated 26.08.2010 by the present appellants and initiated the contempt proceeding. Hence the present appeal has been filed by the appellants, under Section 19 of the 1971 Act, maintainability of which has been challenged by the present respondent, who is the contempt petitioner in Cont.Cas(C) No.20/2010.
3. We have heard Mr. S. Deb, learned Sr. counsel assisted by Mr. N.C. Pal, learned counsel for the appellants and Mr. A.K. Bhowmik, learned Sr. counsel assisted by Mr. Datta, learned counsel appearing for the respondent.
4. Mr. Deb, learned Sr. counsel for the appellants referring to the provisions contained in sub-section (1) of Section 19 of the 1971 Act, which provides for an appeal from any order passed by the High Court in exercise of the contempt jurisdiction, has submitted that since because of drawal of the contempt proceeding against the appellants by the learned Single Judge, vide order dated 30.09.2011, the appellantsright has been affected, an appeal under the said provision of law is maintainable. It has further been submitted that in fact, the learned Single Judge while drawing up the contempt proceeding against the appellants, has held that the appellants are guilty of contempt and as such the same being the decision in exercise of its contempt jurisdiction to punish the appellants, the appeal, in any case, lies against the said order. Referring to Apex Courts decision in Midnapore Peoples Cooperative Bank Ltd. and ors. Vs. Chunilal Nanda and ors. reported in (2006)5 SCC 399, it has also been submitted by the learned Sr. counsel that as the learned Single Judge while drawing up the contempt proceeding against the appellants has recorded his decision on the merit of the case, an appeal under Section 19 of the 1971 Act is maintainable. In any case, according to the learned Sr. counsel, an intra court appeal against the impugned order is maintainable as held by the Apex Court in the said case, as the learned Single Judge has passed the order touching the merit of the case, during pendency of the contempt petition, even if the appeal under Section 19 of the 1971 Act is not maintainable, hence this appeal may be treated as the writ appeal. Mr. Deb, learned Sr. counsel in support of his contention has also placed reliance on a Division Bench judgment dated 06.05.2010 passed in Cont.App(C) No.1/2010 (Shri R.P. Tangwan Vs. Sri Phalgun Hrangkhal), wherein it has been held that an appeal against the order passed by a Single Bench drawing up contempt proceeding is maintainable before a Division Bench. The learned Sr. counsel, therefore, submits that since the appeal is maintainable, be that an appeal under Section 19 of the 1971 Act or a writ appeal, it may be admitted for hearing on merit.
5. Per contra, Mr. Bhowmik, learned Sr. counsel for the respondent, submits that under Section 19(1) an appeal lies against any order or decision of the High Court passed in exercise of the contempt jurisdiction to punish for contempt and not against an order drawing up contempt proceeding, as held by the Apex Court in Midnapore Peoples Cooperative Bank Ltd.(supra). Referring to a Division Bench decision of this Court dated 20.11.2009 passed in Cont.App(C) No.3/2009 (Chandramati Devi Vs. Rajib Bora and ors.), it has also been submitted that the appeal against an order drawing up contempt proceeding is not maintainable. The learned Sr. counsel referring to the decision of a Division Bench of this Court in R.P. Tangwan (supra), on which the learned Sr. counsel for the appellants has placed reliance, has submitted that the said decision being contrary to the law laid down by the Apex Court in Midnapore Peoples Cooperative Bank Ltd., is to be ignored being per incurium as the Apex Court in the said case in categorical term has held that no appeal under Section 19(1) of the 1971 Act lies against an order drawing up the contempt proceeding, but when in a contempt proceeding any decision is recorded by a Single Bench on the merit of the main case, which gives rise to the contempt proceeding, an intra court appeal is maintainable against such decision touching the merit. It is the contention of the learned Sr. counsel that the Division Bench in R.P. Tangwan (supra) while holding that even if the appeal under Section 19(1) of the 1971 Act is not maintainable, an intra court appeal is maintainable against the order drawing up contempt proceeding, did not appreciate the law laid down in Midnapore Peoples Cooperative Bank Ltd.s case, in its proper perspective. The learned Sr. counsel, therefore, submits that neither the appeal under Section 19(1) of the 1971 Act nor an intra court appeal being maintainable against the order drawing up the contempt proceeding against the appellants, the appeal deserves to be dismissed.
6. We have considered the submissions of the learned counsel for the parties and also perused the materials made available on the record of the appeal including the order dated 30.09.2011 passed by the learned Single Judge.
7. Section 19 provides for an appeal from any order or decision of High Court in exercise of its jurisdiction to punish for contempt, (a) to a Bench of not less than two Judges of the Court where the order or decision is that of a Single Judge or (b) to the Supreme Court where the order or decision is that of a Bench. Plain reading of Section 19 makes it clear that an appeal is maintainable, as of right, from any order or decision of the High Court to punish a person for contempt. The Apex Court in State of Maharastra Vs. Mahboob S. Allibhoy and anr., reported in (1996)4 SCC 411, has held that the words âany orderoccurring in sub-section (1) of Section 19 of the 1971 Act have to be read with the expression âdecisionused in the said sub-section, which the High Court passes in exercise of its jurisdiction to punish for contempt. The words âany orderis not independent of the expression âdecision, which have been put in an alternative form saying âorderor âdecision. It has further been held that in either case it must be in the nature of punishment for contempt. The Apex Court further observed that if the expression âany orderis read independently of the âdecisionthen an appeal shall lie under sub-section (1) of Section 19 of the Act even against any interlocutory order passed in a proceeding for contempt by the High Court, which shall lead to a ridiculous result.
8. The Apex Court, upon noticing the various earlier decision including Mahboob S. Allibhoy (supra), summarize the law relating to the maintainability of the appeal in Midnapore Peoples Cooperative Bank Ltd.(supra) as under:
â11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarized thus:
I. An appeal under section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt.
II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution.
III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties.
IV. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of 'jurisdiction to punish for contempt' and therefore, not appealable under section 19 of CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under section 19 of the Act, can also encompass the incidental or inextricably connected directions.
V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases).â
9. Since a Division Bench of this Court in R.P. Tangwan (supra) has, referring the decision of the Apex Court in Midnapore Peoples Cooperative Bank Ltd.(supra), held that an intra court appeal, if not an appeal under Section 19 of the 1971 Act, is maintainable, we consider it necessary to delve on the facts involved in Midnapore Peoples Cooperative Bank Ltd.s case. In that case, the respondent was put under suspension pending initiation of the disciplinary proceeding, pursuant to a resolution of the Board of Directors dated 16.04.1994, by the appellant bank, which was challenged by the respondent in a writ petition. The writ petition was disposed of on 27.06.1995 recording the submission of the bank that the charge-sheet has already been issued and directing the bank to deliver a copy of the charge-sheet and pay the arrears for subsistence allowance within a week. The respondent was also directed to file the written statement within 10(ten) days thereafter with a further direction to conclude the enquiry within a period of 3(three) months from the date of communication of the order, subject to the respondent rendering full cooperation for the conduct of the disciplinary proceeding. The charge-sheet dated 01.07.1995 was then issued containing 9(nine) charges. The respondent also filed the written statement and thereafter the Enquiry Officer completed the enquiry and submitted his report finding the respondent guilty of all the charges. Copy of the enquiry report was furnished to the respondent on 25.09.1995 giving him opportunity to submit his representation against such finding. At that stage, the respondent, who was working as Secretary of the respondent bank, filed another writ petition for quashing of the enquiry proceeding alleging bias against the Enquiry Officer, which was allowed by a Single Bench of the High Court with a direction to the Chairman of the Bank to appoint someone, who is not a member of the Board of Directors, as Enquiry Officer by requesting the Registrar of Cooperative Societies to nominate a suitable officer preferably of the rank of Asstt. Registrar of Cooperative Society to be the Enquiry Officer. The Enquiry Officer was also directed to conduct the enquiry de novo by observing all the principle of natural justice and the applicable rules and regulation and to submit his report within 4(four) months from the date of the first sitting, with a further direction to the disciplinary authority to take suitable action on the basis of the report to be submitted. The bank was also directed to pay proper subsistence allowance to the respondents during the period of suspension. The Enquiry Officer was accordingly appointed, who started a fresh enquiry. As the enquiry was not completed within 4(four) months from the first sitting as directed, a contempt petition was moved, wherein the Chairman, new Enquiry Officer, the previous Enquiry Officer and the Secretary-in-charge of the bank were impleaded eo nomine as respondents in the said contempt petition. A Single Bench of the High Court on 20.11.1998 issued Rule against the new Enquiry Officer only. The Single Bench, however, at the same time passed an order directing that the new Enquiry Officer shall cease to be the Enquiry Officer giving liberty to the other respondents to appoint any other person as Enquiry Officer with the further direction to reinstate the contempt petitioner immediately in the service of the bank, thereby touching the merit of the case which gave rise to the contempt petition. The said order was put to challenge before a Division Bench by the Chairman and Secretary-in-charge of the bank in an appeal under Section 19 of the 1971 Act, which was dismissed by the High Court by holding that since the order passed by a Single Bench of the High Court is not an order punishing for contempt, appeal under Section 19 of the 1971 Act is not maintainable and as the appellants therein also did not satisfy the requirement of clause 15 of the Letters Patent. The Chairman and the In-Charge Secretary along with the bank, therefore, filed the SLP before the Apex Court.
10. On the backdrop of such factual position, the Apex Court in Midnapore Peoples Cooperative Bank Ltd.(supra) has held that when in a contempt proceeding any direction or decision on the merit of a dispute between the parties is made by the High Court i.e. merit on the initial proceeding which gives rise to the contempt proceeding, the same though would not be in exercise of the âjurisdiction to punish for contemptâ and hence not appealable under Section 19 of the 1971 Act, the aggrieved person can challenge the said direction or decision in an intra court appeal, if provided for, or by seeking special leave under Article 136 of the Constitution of India, as the aggrieved person cannot be without any remedy. The Division Bench judgment of this Court in R.P. Tangwan (supra), holding that if not an appeal under Section 19 of the 1971 Act is maintainable, an intra court appeal against the decision of the learned Single Judge to draw contempt proceeding is maintainable, cannot, in view of the aforesaid discussion and the law laid down by the Apex Court, have any precedential value, the same having passed without noticing the facts in Midnapore Peoples Cooperative Bank Ltd.(supra).
11. Another Division Bench of this Court in Chandramati Devi Vs. Rajib Bora and ors. (supra), relying on the decision of Midnapore Peoples Cooperative Bank Ltd.(supra), has taken the same view as has been taken by us in this judgment.
12. The further contention of the learned Sr. counsel for the appellants that by the impugned order dated 30.09.2011, as the learned Single Judge has recorded the finding that the appellants are guilty, which amounts to a decision to punish for contempt and hence appeal under Section 19 of the 1971 Act is maintainable, cannot be accepted as it is evident from the impugned order that the learned Single Judge has discussed all the materials made available in the contempt proceeding to record the prima facie opinion of commission of the contempt by the appellants, which is necessary for the purpose of drawing up the contempt proceeding against them. Such prima facie opinion is tentative and not final.
13. In view of the aforesaid discussion, we are of the considered opinion that the appeal against the order drawing up contempt proceeding against the appellants is neither appealable under Section 19 of the 1971 Act nor any intra court appeal lies against the said order.
14. Hence the appeal is dismissed as not maintainable.