Hrishikesh Roy, J.
1. Heard Mr. Vijay Hansaria, learned senior counsel assisted by Mr. S. Saikia and Mr. A. Apang, learned Counsel who are appearing for the appellants who are the Director and the Registrar of the North Eastern Regional Institute of Science & Technology (NERIST). Mr. A. Mannan, learned Counsel appears for the Union of India.
2. The present Writ Appeal is filed challenging the Order dated 03.02.2006 in W.P. (C) No. 915 (AP)/2001 whereby in course of the writ proceeding hearing, the learned single Judge took the view that the appellant authorities (respondents in the writ petition), by contending that no post of Senior Instructor Grade-I ever existed in the NERIST, were trying to mislead the Court. The learned single Judge took a prima-facie view that materials exist on record to initiate proceedings for Contempt of Court against the NERIST authorities. On the basis of such conclusion, the learned single Judge directed issuance of notice on the Director and Registrar of NERIST to show-cause as to why a proceeding under the Contempt of Courts Act. 1971, hereinafter referred to as the 1971 Act read with Rule 9 of the Gauhati High Court (Contempt of Courts) Rules, 1977, hereinafter referred to as the 'High Court Contempt Rules', should not be initiated by making the said notice returnable in 6(six) weeks. By the said impugned order dated 03.02.2006, the learned single Judge also directed that the writ petition shall be treated as Part-Heard and shall be listed as and when the concerned Bench is next available. The Director and Registrar of the NERIST were also directed to appear-in-person and explain their conduct as well as show-cause as to why, proceedings not to be initiated against them for committing con-tempt of Court.
Being aggrieved with the aforesaid order directing initiation of contempt of court, the present appeal has been filed.
3. The aforesaid writ petition was filed by 7 (seven) writ petitioners wherein a communication of the NERIST authorities dated 27.02.2001 was challenged. The said communication was addressed to Satyajit Gupta, Laboratory Assistant by the Director of NERIST in response to his request for higher scale of pay. By the said letter, the addressee was informed that once additional posts are sanctioned by the Ministry of Human Re-sources Development (MHRD), the promotional aspects of Technical Assistants and other Staff would be considered through due process and as per norms and guidelines of the appropriate authorities and Satyajit Gupta was requested to be patient till additional posts are sanctioned. The writ petitioners also sought a direction of the Court to promote them to the next higher grade, which, it is submitted to be a post of Senior Instructor Grade-I as the 7 (seven) writ petitioners were already working in the post of Senior Instructor Grade-II/Foreman at the time of filing the writ petition.
4. Although other facts pertaining to the writ petition may not be relevant but it would be important to bear in mind that the writ petitioners were claiming promotion to the post of Senior Instructor Grade-I by filing the aforesaid WP(C) No. 915 (AP)/2001.
5. The learned single Judge found that the appellants were trying to mislead the Court on the basis of certain communications and actions of the NERIST authorities, which, was found to bely the stand taken by the NERIST authorities before the Court to the extent that no posts of Senior Instructor Grade-I has been sanctioned in NERIST.
6. It is recorded in the order dated 03.02.2006 that the learned single Judge gathered that the posts of Senior Instructor Grade-I exists in the NERIST, on the basis of the following documents/developments:
(i) A communication dated 05.06.1998 issued by the Deputy Secretary (T), Ministry of Human Resources Development, Government of India, intimating about extension of revised pay-scale to the employees of NERIST wherein the posts of Senior Instructor Grade-I was referred to in the Chart containing list of about 70 (seventy) posts for which the revised pay-scale was stated to be applicable;
(ii) Promotions granted to N.D. Singh on 24.03.1998 to the post of Senior Instructor Grade-II and the promotion granted to R.K. Dutta to the post of Superintendent by promotion order dated 12.01.1998;
(iii) The discussion in the meeting dated 02.12.1994 in the Board Meeting of NERIST wherein a statement indicating that the initial sanctioned strength of Senior Instructor Grade-I as per the Original Project Report was re-corded to be 26 and the reduction of the initial projected strength of the said post to 12 for the purpose of 8th Five Year Plan.
7. In the perception of the learned single Judge, it was demonstrated by the aforesaid communications and events that at least some posts of Senior Instructor Grade-I were avail-able and the writ petitioners could have been promoted to the said posts. The Court felt that the NERIST authorities were deliberately misleading the Court as to the non-availability of the posts of Senior Instructor Grade-I and accordingly, the learned single Judge took the view that the action of the appellate authorities prima-facie amounts to contempt of Court. Since the learned single Judge referred to Rule 9 of the Gauhati High Court Con-tempt Court Rules, it appears that the Court proceeded to treat the action of the appel0-lants to be one coming within the definition of Civil Contempt.
8. However, Mr. V. Hansaria, learned senior counsel has referred to the provisions of Section 2 of the Contempt of Courts Act, 1971, from where we find that under Sub-clause (b) of Section 2 Civil Contempt has been defined to mean willful disobedience of any judgment, decree, direction, order, writ or other process of Court or willful prejudice to the Court's order.
The learned senior counsel for the appellant has also referred to the definition given of Criminal Contempt under Section 2(c) of the 1971 Act. By referring to Sub-clause (ii) of Section 2(c), the learned senior counsel has indicated that if the inference reached by the learned single Judge on the conduct of the appellants are to be accepted, the same would cause prejudice and would amount to interfering or tending to interfere with the due course of judicial proceeding and as such, he submits that if the conclusion reached by the learned single Judge are found to be true, it would actually amount to Criminal Contempt and not Civil Contempt. The relevancy of this discussion on the nature of the Contempt would be clear after a while.
The learned senior counsel has further referred to the decisions of the Supreme Court rendered in M.C. Mehta v. Union of India reported in : 2003CriLJ2045 wherein in paragraph 20, it is indicated that filing of false affidavit or statements in the Court amounts to criminal contempt.
9. Challenging the 3 factual foundations on the basis of which the learned single Judge drew the adverse inference, the learned senior counsel has referred to the letter dated 05.06.1998 addressed by the MHRD to the Director of NERIST. A list of 70 (seventy) posts were enclosed to the said communication dated 05.06.1998 and it was indicated that the revised pay-scale would also be avail-able to the posts mentioned in the said list. It is pointed out by the learned senior counsel that those 70 (seventy) posts mentioned in the communication dated 05.06.1998 included several posts including the post of Senior Instructor Grade-I, which were yet to be sanctioned and could be described as future posts for which appointments could only be made by the NERIST authorities at a future date. Amongst the non-sanctioned posts mentioned in the list were the posts of Senior Instructor Grade-I, Fire Fighting Men, Computer Assistant, Assistant Accountant, Receptionist, Store Officer, Maintenance Engineer, Protocol Assistant, Photographic Assistant, Project Operator, etc. All these posts al-though were shown as entitled to enhanced scale of pay were mentioned in the aforesaid list, not because they were sanctioned posts but were posts which might at a future date, be sanctioned and could be filled up by NERIST with the approval of the Government of India. The said approval at least at the time of passing the impugned order dated 03.02.2006 by the learned single Judge had not come. Therefore, the said list could not have been considered to mean that the post of Senior Instructor Grade-I were sanctioned in NERIST.
10. The second basis for the adverse conclusion reached were the promotion orders dated 24.03.1998 and 12.01.1998 given to N.D. Singh and P.K. Dutta to the posts of Senior Instructor Grade-II and Superintendent respectively. It is pointed out by the learned senior counsel that the said promotions have not been given to the post of Senior Instructor Grade-I and accordingly, the learned single Judge could not have assumed existence of the posts of Senior Instructor Grade-I by referring to the said promotion orders, although, the said promotion orders have been erroneously made the basis to reach the conclusion that the NERIST authorities were trying to mislead the Court by contending non-availability of the posts of Senior Instructor Grade-I in the Institute.
11. The learned senior counsel has also dealt with the third reasoning, namely the minutes of the Board Meeting dated 02.12.1994 which had shown that 26 posts of Senior Instructor Grade-I were there as per the Original Project Proposal in respect of NERIST. But in the concerned chart, it was clearly reflected that the existing strength of Senior Instructor Grade-I is ZERO, which clearly indicated that although posts of Senior Instructor Grade-I were shown in the initial project papers at the time of the establishment of NERIST, the said posts were not yet sanctioned and no appointment could have been made by the NERIST authorities to the said posts.
A further reference made by the learned single Judge to the reduction of the posts of Senior Instructor Grade-I from 24 to 12. But it is clear that it was not reduction of the actual sanctioned and operating posts of Senior Instructor Grade-I. But reduction was in the context of the recommendation made by the Nag Committee to have 12 posts of Senior Instructor Grade-I instead of initial proposal of 24 posts in the 8th five Year Plan. But in the concerned document, it was clearly revealed that no proposal for posts of Senior Instructor Grade-I was made for the 9th Five Year Plan. In fact, all these references were to various proposals and not to actual number of posts of Senior Instructor Grade-I.
12. On close scrutiny of the (i) MHRD communication dated 05.06.1998 (ii) the pro-motion orders dated 24.03.1998 and 12.01.1998 whereby two persons were promoted to the posts of Senior Instructor Grade-II and Superintendent respectively and also (iii) The deliberations in the Board Meeting dated 02.12.1994, it is clearly revealed that no posts of Senior Instructor Grade-I have actually been sanctioned for NERIST. The posts of Senior Instructor Grade-I were only at the proposal stage and unless the said posts were sanctioned and the NERIST authorities are permitted to make appointment by the MHRD, the posts could not be said to be existing. This was the stand correctly taken by the NERIST authorities before the learned Judge but the learned single Judge took the view that an attempt was made to mislead the Court and the said conclusion was reached by the learned single Judge by referring to the aforenoted circumstances.
13. Having carefully examining the relevant materials, we are of the view that at the relevant time, no posts of Senior Instructor Grade-I was ever sanctioned to which any-body could have been promoted and the conclusion reached to the contrary by the learned single Judge that such posts were available, is not borne out by the documents and events, which have been made the basis for a prima-facie conclusion reached against the appellant authorities.
14. In our opinion, the said prima-facie view of the learned single Judge is factually erroneous and unreasonable.
15. Now we have to deal with another issue on the erroneous procedure adopted by the learned single Judge to deal with a suomoto Contempt of Court proceedings as sub-mission has been made by Mr. V. Hansaria, learned senior counsel that even if the conclusion as to existence of a prima-facie con-tempt by the appellants were held to be sustainable on facts, yet the same would require intervention by the Appellate Court because of the illegal procedure adopted by the learned single Judge to deal with the suomoto contempt proceeding.
16. To press forward his contentions, the learned senior counsel has referred to the pro-visions of the Contempt of Courts (Gauhati High Court), Rules, 1977, wherein the following procedure are laid down to deal with contempt proceedings.
5.(1) Every reference relating to contempt of court subordinate to the High Court shall be scrutinized by the Registrar who shall place the same before the Chief Justice or any other Judge nominated by him in this behalf for obtaining orders after noting there thereon the nature of the contempt.
(2) When any publication, application, letter of intimation is received by post or other-wise called for any action being taken under the Act by the High Court on its own motion, the matter shall be dealt with in the manner prescribed in Sub-rule (1). In the case of criminal contempt of a subordinate court, the Chief Justice or the Judge, as the case may be, may direct that the papers be sent to the Advocate-General of the State in which the subordinate court is situate, or to the law officer, if subordinate court is situate in the Union Territories of Arunachal Pradesh or Mizoram, as the case may be, to move the High Court for taking action under the act.
6.(1) Every petition, motion or reference in relation to criminal contempt shall, unless the Chief Justice directs it to be heard by a larger bench, be laid for motion hearing before a Division Bench of at least two Judges.
(2) Every petition, motion or reference in relation to civil contempt shall, unless directed otherwise by the Chief Justice, be laid before a single Bench.
(3) ...
(4) ...
(5) ...
(6) ...
(7) ...
It appears from Rule 5(i) of the Contempt of Courts (Gauhati High Court) Rules, 1977, quoted above that in case of a contempt proceeding initiated by a High Court by its own motion, such matter will be dealt in the manner prescribed under Sub-rule (i) which pro-vides that Contempt proceeding are to be scrutinized by the Registrar who would place the same before the Chief Justice or any other Judge nominated by Chief Justice on his be-half for obtaining orders after noting therein the nature of the contempt.
Under Rule 6(i), a Criminal Contempt, unless the Chief Justice directs, it to be heard by a larger Bench would be heard by a Division Bench of at least 2 Judges.
By referring to the aforesaid provisions of the Gauhati High Court Contempt Rules, 1977, the learned senior counsel appearing for the appellants submits that even if it is assumed that the learned single Judge was right in concluding that this was a fit case for drawing up a suomoto contempt, the learned Judge could not have directed initiation of contempt proceedings by himself, nor could have directed posting of the said matter be-fore the same Court by treating the matter as Part-Heard and further directing personnel-appearance of the Director and Registrar of the NERIST before him, inasmuch as, the procedure laid down by the Gauhati High Court Contempt Rules, were clearly disregarded in the manner in which the learned single Judge dealt with the matter by his order dated 03.02.2006.
17. The learned senior counsel has also referred to the decision of the Supreme Court as reported in : 1988CriLJ1745 (P.N. Duda v. Shivshankar) wherein the Supreme Court was examining the contempt action initiated on account of a speech delivered by the respondent.
The Supreme Court in R.N. Duda (supra) was referring to the procedure followed by the Delhi High Court in the case of Anil Kr. Gupta v. K. Subba Roy while dealing a suomoto criminal contempt proceedings. In that case, the suomoto contempt was registered as an original contempt proceeding by the court Registry without at first placing the matter before the Chief Justice for his orders in his Chambers prior to placing the matter for admission for consideration on the judicial side by the Court. In that context, the Supreme Court approved the observations made by the Delhi High Court which may be extracted herein for ready reference.
The Office is to take note that in future if any information is lodge even in the form of a petition inviting this Court to take action under the Contempt of Courts Act or Article 215 of the Constitution, where the informant is not one of the persons named in Section 15 of the said Act, it should not be styled as a petition and should not be placed before the Chief Justice for orders in Chambers and the Chief Justice may decide either by himself or in consultation with the other Judges of the Court whether to take any cognizance of the information. The Office is directed to strike off the information as 'Criminal Original No. 51 of 1973' and to file it.
While approving the aforesaid procedure adopted by the Delhi High Court, the Supreme Court in P.N. Duda (supra) indicated that the procedure adopted be followed at least in future as a Rule by not only the Supreme Court but every other High Court.
18. The learned senior counsel for the appellants has also referred to the Supreme Court's decision reported in : 2005CriLJ659 (Bal Thackerey v. Harish). In this case, the Supreme Court was considering the suomoto contempt proceedings to be followed by a High Court.
In Bal Thackerey (supra), the Supreme Court was examining the issues raised as to whether the decision rendered in P.N. Duda's case would in any way affect the power of any individual Judge of the High Court to deal with contempt cases and as to whether the said power is exclusively vested on the Chief Justice of the High Court on the administrative side. The Supreme Court in Bal Thackerey's case, approved the procedure prescribed in P.N. Duda's case by stating that what was prescribed in the said case is merely the procedure to be adopted by the High Court.
It was also held by the Supreme Court that the procedure laid down in P.N. Duda's case is required to be appreciated keeping in view that the Chief Justice is the master of the roster and it is the prerogative of the Chief Justice to distribute the business of the Court and the Chief Justice alone has the right and power to decide how the Benches of the High Court should be constituted and also allot which Judge shall deal with such contempt matters.
Accordingly, the Supreme Court approved the decision rendered in the P.N. Duda's case by stating that procedure pre-scribed therein would ensure smooth working and streamlining of Contempt actions which are intended to be taken-up by the Court in suomoto on its own motion and that these directions does not lead to curtailing or denuding the power of the High Court.
19. Having regard to the decisions cited in the P.N. Duda (supra) and Bal Thackerey (supra) and also the procedure laid down under the Contempt Rules of the Gauhati High Court, it is clearly seen that even while initiating suomoto contempt proceedings, a specific procedure is required to be followed and a contempt proceeding cannot be initiated or taken-up by a learned Judge by disregarding the provisions so laid down.
20. On examination of the procedure pre-scribed by the Contempt of Courts (Gauhati High Court) Rules, 1977, it is clear that even in case of suomoto contempt, the matter first needs to be scrutinized by the Registrar of the Court under Rule 5 and the same is required to be placed thereafter to the Chief Justice or any other Judge nominated by him in this behalf for obtaining necessary orders. Only after the matter is examined by the Chief Justice and after the nature of the contempt is determined to be one of Civil or Criminal Contempt, the matter will be placed before the appropriate Bench as per the provisions of Rule 6 of the Gauhati High Court Rules. It is clearly specified under Rule 6 that Criminal Contempt are to be heard by a Division Bench of at least by 2 (two) Judges and Civil Con-tempt are to be heard by the Bench of a Single Judge and in each of the aforesaid situation, the Chief Justice has the right to constitute a Bench of larger strength.
21. Although the procedure prescribed by the Contempt of Courts (Gauhati High Court) Rules, 1977, were not under scrutiny of the Supreme Court in the P.N. Duda (supra) and Bal Thackerey (supra) cases, the procedure approved by the Supreme Court in those cases are clearly in tune with the Gauhati High Court Rules and therefore, we can conclude without any doubt that even in case of a suomoto contempt, such contempt has to be dealt with as per the procedure prescribed by the Contempt of Courts (Gauhati High Court) Rules, 1977.
22. In the instant case, the prima-facie conclusion against the NERIST authorities was that they tried to mislead the learned single Judge by stating that no posts of Senior Instructor Grade-I has been sanctioned in the NERIST. The learned single Judge took the view that the said stand was falsely taken and accordingly, the said stand of the NERIST authorities was perceived to be an action which interferes or tends to interfere with the course of the judicial proceedings conducted by the learned single Judge. If at the instance of anyone, a judicial proceeding in the High Court is interfered with such interference would naturally come within the definition of criminal contempt and not civil contempt.
23. If the action of the NERIST authorities were in the nature of Criminal Contempt, the learned single Judge could not have directed the contempt matter to be again placed before the same learned single Judge on the returnable date and directing the personal appearance of the Director and Registrar of NERIST before the same very Judge by ordering the matter to be treated as Part-Heard.
24. In our view, the appropriate procedure for the learned single Judge in the circumstances that he faced should have been to draw the attention of the Registrar to en-able the Registrar to bring the matter to the notice of the Chief Justice and thereafter, al-low the matter to be dealt with as per the direction of Chief Justice and also as per the procedure laid down under the Gauhati High Court Contempt Rules.
25. Unfortunately, it was not done and the learned single Judge ordered the matter to be treated as Part-Heard before himself and directed the personal appearance of the alleged contemnors. The said procedure adopted by the learned single Judge apart from being contrary to the provisions of the Contempt of Courts (Gauhati High Court) Rules, 1977, is also contrary to the decisions rendered by the Supreme Court in P.N. Duda and Bal Thackereys' case.
As it has been rightly commented by the Supreme Court in a recent case reported in : 2007CriLJ3753 (Rajesh Kumar Singh v. High Court of Judicature of Madhya Pradesh) that:
The purpose of the power to punish for Criminal Contempt is to ensure that the faith and confidence of the public in the administration of justice is not eroded. Such power, vested in the High Courts, carries with it great responsibility. Care should be taken to ensure that there is no room for complaints of abstentious exercise of power.
26. In view of above, we declare that the procedure adopted by the learned single Judge while drawing up suomoto contempt proceedings against the appellate authorities by his order dated 03.02.2006 is contrary to law. In view of the discussions made above, we set aside the impugned order dated 03.02.2006 rendered in WP (C) No. 915 (AP)/2001 and all actions initiated in pursuant to the said order.
It is brought to our notice that this Court by its order dated 29.08.2007 dismissed WP (C) No. 915 (AP)/2001 on merits in favour of NERIST and against the writ petitioners.
With the above observations and directions, the present writ appeal stands allowed.