P.K. Balasubramanyan, C.J.
1. The question referred to us for decision by the Division Bench read as follows :
'Whether the Sections 28(1), 28(3-b) and 33-A mentioned and the other provisions of the Orissa Cooperative Societies Act, 1962 (in short, 'the Act') have come into operation ?'
The Orissa Co-operative Societies Act, 1962 came into force on 13.2.1963. Since then, there were various amendments to that Act. The Orissa Co-operative Societies (Amendment) Act, Act 28 of 1991, by Sections 19, 27 and 28 thereof, amended Sections 28(1), 28(3-b)(1), 33-A and 33-B of the Parent Act. Section 1(2) of the Amendment Act, Act 28 of 1991 provided that the various provisions of the Act as amended or the amended Sections, would come into effect as on the date notified in the Gazette. Though the question referred to us for decision is whether Sections 28(1), 28(3-b) and 33-A as amended by Act 28 of 1991 have come into force or were ever notified bringing them into force, it is the admitted case before us that no notification as contemplated by Section 1 (2) of Act 28 of 1991 was issued bringing into force those provisions. Of course, counsel for the petitioner argued that by certain other orders issued, it must be taken that the provisions have been brought into force. But that is a different argument. We are observing that there is no notification under Section 1(2) of Act 28 of 1991 bringing into force the concerned amended Sections of the Parent Act.
2. Though the reference before us arises out of a proceeding initiated under Section 12 of the Contempt of Courts Act, 1971, the question was argued from a larger perspective in view of the reference made to the Full Bench on a wider perspective. Strictly, in an application under the Contempt of Courts Act, the Court is not concerned with the correctness of the decision in respect of which the complaint is made, but whether the direction issued has not been complied with or has been wilfully disobeyed. In the case on hand, the question assumed a larger dimension in view of the fact that the decision rendered in the case was based on a statutory provision that had never been brought into force. In that context, apart from arguing that in view of the clear error committed by the Court in the judgment originally rendered, it was inexpedient to take proceedings under the Contempt of Courts Act, learned Additional Government Advocate also argued that since the decision was patently erroneous in that it had proceeded on the basis of a non-existent statutory provision, it was just and proper for this Court, on being apprised of the mistake made, to suo motu correct that error and nothing could stand in the way of this Court exercising such a power. Learned counsel for the petitioner sought to meet this contention by pointing out that even though there was no formal notification under Section 1(2) of Act 28 of 1991 bringing into force the relevant provisions, the Government had issued orders recognising the amended provisions and in that context, it could not be said that the decision was rendered on the basis of a non-existent provision and consequently was erroneous on the face of the record. The counsel also submitted that the correctness or otherwise of the decision had no relevance in considering whether there has been a wilful disobedience of the direction of this Court and no person charged with contempt could come forward with a plea that he was not obeying that direction since according to him the direction was erroneous. The counsel submitted that in this case, a petition for special leave to appeal to the Supreme Court was filed against the judgment, but the same was dismissed by the Supreme Court, though of course it had to be conceded, that there was no merger of the decision of this Court in that of the decision of the Supreme Court since the order was one merely stating that the petition for Special leave was dismissed.
3. Finding force in the submission of the learned Additional Government Advocate that there are a larger number of institutions governed by the Act and if a precedent of this Court which omitted to take note of the fact that the amended Section had not been brought into force, is allowed to stand, it will lead to great confusion, we feel that it would be appropriate for this Court to correct itself if it had made an error which was apparent on the face of the record. Prima facie, it is seen that this Court has proceeded as if an amended provision had come into force, whereas it had in fact not and the difference between the two positions is so significant that we would be failing in our duty if we do not exercise our suo motu power to review the earlier judgment itself. In that perspective, we gave notice of our intention to consider the question of review to learned counsel for the petitioner and giving him time, adjourned the proceedings for hearing the entire matter and not merely the one referred to us for decision. Subsequently, counsel for the petitioner, counsel for the society and the Additional Government Advocate were heard not only on the question referred to us but also on the question posed in the writ petition filed by the petitioner and from the angle whether the judgment of this Court therein suffered from an error apparent on the face of the record which justified our reviewing that judgment itself. We thus re-heard the whole matter.
4. Learned counsel for the petitioner made a written submission dated 26,8.2002 enclosing therewith certain orders which according to him indicate, that the amended provisions of the Act had come into force with particular reference to the orders issued by the Government in exercise of powers conferred by Section 123 of the Parent Act. Counsel had accepted the various notifications produced by the Additional Government Advocate under Section 1 (2) of Act 28 of 1991 and the absence of any notification under Section 1(2) of the Act bringing into force Section 28(1), Section 28(3-b) and Section 33-A of the Act as amended. But counsel for the petitioner contended that the orders issued on 29.7.1998 by the Government, did practically proceed on the basis that the amended Sections were in force and this would justify the adoption of the position that the Sections have in fact been brought into force. We are not in a position to accept that submission. When a Statute says that the provisions would come into force, on such date as the State Government may by notification appoint, we cannot but accept the position that the Sections come into force only when a notification as contemplated is actually issued. An enactment in such circumstances can come into force only by the issuance of the notification contemplated. The Act or the Sections cannot be said to have come into force by a process of reasoning or by theorising, when their coming into force depends on the issuance of a notification. Therefore, in the absence of a notification, there cannot be a doubt that the amended provisions have not come into force.
5. On the basis of this conclusion, the question referred to us has to be answered in the negative by stating that the amended provisions have not come into force or effect.
6. The petitioner entered the service of the Co-operative Society on 23.9.1978 when he was appointed as an Accounts Clerk. He had the qualification to hold that post. But he had no Degree either in Arts or in Commerce. Therefore, he did not have the qualification for holding the post of an Accountant. But on 2.11.1982, the Managing Committee of the Society took a decision to promote the petitioner to the post of Accountant. But, apparently, that decision was not given effect to and on 25.9.1992, the Committee passed a Resolution to grant promotion to the petitioner and post him as an Accountant with effect from 1.7.1986. Under the unamended Section 28 of the Act, the management of the society was to vest with the committee constituted in accordance with the Rules and its Bye-Laws and the Committee so constituted was to exercise such power and perform such duties as conferred or imposed by the Act. Under Section 33-A of the Act the Registrar was to classify the societies into different classes and was to fix the number and designation of the employees to be employed in different classes of societies and to make Rules regulating the qualification, remuneration, allowances and other conditions of service of such employees. Under the amended Section 33-A (which was not brought into force) the power to fix the number and designation of the employees vested with the Committee of the Society, subject of course to the provisions of the Act and the Rules and the Bye-Laws of the Society and the Committee had also the power to determine the qualification criteria, recruitment procedure, remuneration payable, conditions of service and other related matters for a particular category. Obviously, if the amended provision had applied, the Society could have appointed the petitioner as an accountant by designating the qualification he possessed as sufficient. But under the unamended provision, unless the petitioner possessed the requisite qualification as prescribed, he could not be appointed, and his appointment, if any, had to be approved by the Registrar. In the context of the petitioner not possessing the requisite qualification of an Arts Degree or possessing a Commerce Degree, the petitioner's promotion to the post of Accountant could not be approved. This resulted in the petitioner being reverted to the post of Assistant Accountant with effect from 1.7.1986, the date on which he was originally said to be promoted as an Accountant. Earlier, the petitioner had been directed to perform the duties as an Assistant with effect from 3.12.1994 and the petitioner had challenged that direction in OJC No. 8825 of 1994 in this Court on 23.12.1994. The second order was passed on 4.3.1995. The petitioner filed OJC No. 2863 of 1995 challenging the order reverting him as Assistant Accountant with effect from 1.7.1986. His contention was that even though he did not possess a Degree in Commerce or even in Arts, the Managing Committee had the power under the amended Section 33-A of the Act to promote him as an Accountant and in view of this, the order demoting him as an Assistant Accountant was illegal and the order directing him to perform the duties of an Assistant Accountant was also illegal. The Division Bench, in the original application accepted this argument, obviously going by Section 33-A of the Act as amended by Act 28 of 1991, which provision unfortunately had not been notified or brought into force. It was, thus, that the writ petition was allowed by the Division Bench. As we noticed, a petition for Special Leave to Appeal filed before the Supreme Court was dismissed with the following order: 'The Special Leave petition is dismissed.' In view of the decision of the Supreme Court in Kunhayammed v. State of Kerala; (AIR 2000 SC 2587), the fact that the Petition for Special Leave to appeal was dismissed in the above manner does not preclude us from exercising our power of review of the judgment earlier rendered by this Court. That apart, the Judges who rendered the original decision in this case, are not available in this Court with the result that the power of review can be exercised by any other Bench of co-equal jurisdiction. The Division Bench which made the reference could have reviewed the earlier decision. The trend of its reasoning indicates that it was inclined to that view. But, it had thought that it would be more appropriate if the matter is referred to a Full Bench. The referred question has admittedly to be answered in the negative.
7. The original decision by this Court was rendered on the basis that a statutory provision has come into effect when as a matter of fact, it had not. Only if the amended provision had come into force, a Managing Committee could prescribe the qualification and thereafter decide the question of promoting a qualified or unqualified person to the post of an Accountant. But under the unamended provision, the Managing Committee had no such power and the exercise of power was controlled by the Registrar who could categorise the society and determine the posts it should or could have and ensure that appointments and promotions are made consistent with the posts available and the qualifications prescribed. In the case on hand therefore, the appointment of the petitioner as an Accountant was rightly disapproved by the Registrar of Co-operative Societies since the petitioner admittedly did not possess a Degree in Commerce or an Art subject. In other words, he did not possess the requisite qualification to hold the post of an Accountant in the particular category of Co-operative Society. If we allow the decision of this Court to stand, the result would be that the power would be made available to the Managing Committee of a Society which did not statutorily possess the same or the recognition of a power in the Managing Committee not only not conferred by the Statute but actually conferred on another authority created by the Act. We would also be conferring a power on the Committee in the teeth of the statutory provision which controlled that power. We find considerable force in the submission of the learned Additional Government Advocate that the decision would have general application and not in this particular case alone. It will have a general ramification since there are a large number of institutions governed by the Act and the position as pointed out by this Court will have to be accepted, notwithstanding the fact that the provision as it existed is inconsistent with it. We are inclined to the view that this conflict in legal position emerging out of the statutory provision in force and the decision rendered by this Court, justifies our exercising the review jurisdiction to correct ourselves, resulting in the original judgment in the writ petition being reviewed and the writ petition reopened. Therefore, in exercise of our suo motu power of review we review the judgment of this Court dated 4.12.1998 and reopen the writ petition.
8. Once we have reviewed that judgment, the simple question for consideration is whether the petitioner possesses the requisite qualification for being promoted as an Accountant with effect from 1.7.1986 and whether the order dated 4.3.1995 reverting the petitioner to the post of Assistant Accountant with effect from that date is justified. Admittedly, the petitioner did not possess the qualification of a Degree in Commerce which was essential for being promoted as an Accountant in the category of societies to which this particular society belonged. Therefore, the decision of the Managing Committee to promote the petitioner as an Accountant with effect from 1.7.1986 could not be approved or accepted. As a consequence the communication issued to the petitioner informing him that he is reverted to the post of Assistant Accountant with effect from 1.7.1986 was fully legal and calls for no interference.
9. The second writ petition was filed challenging the direction of the Chief Executive of the Society asking the petitioner to perform the duties of an Assistant Accountant. Once it is found that the petitioner was only entitled to hold the post of an Assistant Accountant, it goes without saying that the direction to him to perform the duties of Assistant Accountant would be legal and justified. Therefore, the position emerging is that the petitioner is not entitled to relief in either of the original petitions. Both are liable to be dismissed. Hence, both the writ petitions are dismissed.
10. There cannot be any doubt about the position that whether the judgment be right or wrong, when a direction is issued by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India, the authority to whom such a direction is issued is bound to obey that direction. Here, there was also an attempt to challenge that direction in an appeal before the Supreme Court which did not succeed. In that context, there is force in the submission of learned counsel for the petitioner that the action of the authority concerned not obeying the direction of this Court must be considered to be a wilful disobedience of the direction of this Court. But, that by itself does not make it obligatory for this Court to take action against the opposite parties under the Contempt of Courts Act. Though a wilful disobedience of a judgment would be a 'Civil contempt' as defined in Section 2(b) of the Act, under Section 13 of the Act, this Court has to be satisfied that the contempt is of such a nature that it substantially interferes or tends to substantially interfere with the due course of justice. There may be cases where it may also be inexpedient to take action under the Contempt of Courts Act it would all depend on the circumstances of a given case. In the circumstances of the present case, though it could be said that there is disobedience of the direction of this Court, the fact remains that in the circumstances we have indicated, it is not just or necessary to punish the opposite parties for disobedience of the direction. We are satisfied that in the circumstances, it is inexpedient to proceed under the Contempt of Courts Act. Therefore, on an over all view of the situation we are satisfied that it is not a fit case where we should exercise our jurisdiction under the Contempt of Courts Act to impose a punishment on the opposite parties. We, therefore, drop the contempt of court proceedings.
L. Mohapatra, J.
11. I agree.
A.S. Naidu, J.
12. I agree.