ORDER
Gitesh Ranjan Bhattacharjee, J.
1. In this contempt application the applicant prays for action against the alleged contemnors on the allegation that the alleged contemnors have violated the order dated the 6th March, 1992 passed by Kalyamoy Ganguly. J. in the matter No. 617 of 1992 whereby the learned Judge rejected the writ petition filed by the concerned company, namely, the Indian Research Institute Limited of which the alleged Contemnor No. I was the Managing Director-cum-Chairman and the alleged contemnor No. 2 the Commercial-cum-Works Manager at the relevant time. The said company is stated to be a Joint Sector Company under the Government of West Bengal. The said writ petition was filed by the Company on being aggrieved by the order dated the 20th January, 1992 passed by the Second Industrial Tribunal, Calcutta declaring that the applicant-workman would get interim relief at the rate of Rs. 423 per month from 9-10-91. The applicant's grievance is that the Company has stopped payment of interim relief with effect from May, 1993 payable in June, 1993 and thereby the alleged contemnors have committed contempt of this Court. The applicant was admittedly a workman employed under the concerned company. A disciplinary proceeding was however drawn up against him by the management of the company and the applicant was suspended and charge-sheeted. Ultimately his service was also terminated by order dated the 7th October, 1989 passed by the Director incharge of the company. The applicant thereafter challenged the order of suspenstion and termination of service in a writ petition filed before this Court which was however allegedly dismissed on the ground of maintainability. Ultimately the dispute was referred to the industrial tribunal under the Industrial Disputes Act. During the continuance of the proceedings before the industrial tribunal the applicant filed an application for interim relief. The learned Judge, Second Industrial Tribunal passed the order dated 20-1 -92 declaring that the applicant-workman would get interim relief at the rate of Rs. 423 per month with effect from 9-10-91. Thereafter the company moved a writ petition under Article 226 against that order of interim relief before this Court. However that writ petition was rejected by Kalyarmoy Ganguly, J. by order dated the 6th March, 1992. The order was however not annexed to the contempt application but at the time of hearing a xerox copy of the same was placed before me from which it appears that the learned Judge simply rejected that writ petition without indicating as to why the writ petition was rejected. There was also no discussion about the merit of the writ petition in the said order. In other words, it was an order of rejection simpliciter. There was however a direction that the tribunal would hear out the main dispute as expeditiously as possible preferently within three months from the date of communication of the said order. We would thus see that there was no specific or express direction of the High Court upon the management of the company to pay interim relief. The applicant-workman however has moved this contempt application for violation of the said order of the High Court dated the 6th March. 1992 whereby the writ petition was rejected. The contention of the applicant-workman is that since the management of the company filed the writ petition against the order of the tribunal dated 20-1-92 declaring interim relief for the petitioner and since the writ petition was rejected the said order of the tribunal merged in the order of the High Court and therefore non-compliance of the said order of the tribunal relating to interim relief Constitutes non-compliance of the order of the High Court by dint of the doctrine of merger.
2. As we have seen the order of the High Court rejecting the writ petition does not contain any specific or express direction for payment of interim relief. Therefore non-payment of interim relief directed to be paid by the tribunal cannot be said to be a violation of the order of this Court. To obviate this petent situation the applicant has sought to take recourse to the doctrine of merger and it is argued that since the order of the tribunal relating to payment of interim relief has merged in the order of the High Court by which the writ petition against the order of the tribunal for interim relief was rejected, such non-payment constitutes a violation of the order of the High Court. In support of this argument based on the doctrine of merger the learned Advocate for the applicant-workman has relied upon the decision of the Supreme Court in Collector of Customs v. East India Commercial Co. : [1963]2SCR563 . The said decision was however not on the question of contempt of Court but on the question of territorial jurisdiction. The facts involved in the said decision were thus. East India Commercial Co. had imported mineral oil. The Collector of Customs, Calcutta confiscated a part of the imported oil and imposed penalty. The company appealed to the Central Board of Revenue under Section 188 of the Sea Customs Act, 1878, but the appeal was dismissed in April, 1952. Thereupon the company filed a writ petition in the High Court. One of the questions that fell for consideration was whether the High Court had jurisdiction to entertain the writ petition in view of the fact that although the Collector of Customs who passed the original order of confiscation and penalty was within the territorial jurisdiction of the High Court yet the Central Board of Revenue which rejected the appeal against the order of the Collector of Customs was located outside the territorial jurisdiction of the High Court. There it was held by the Supreme Court that the High Court had no territorial jurisdiction to entertain the writ petition because the operative order challenged in the writ petition was the order of the appellate authority which was located outside the territorial jurisdiction of the High Court. In that connection the Supreme Court considered the question whether the order of the original authority becomes merged in the order of the appellate authority even where the appellate authority merely dismisses the appeal without any modification of the order of the original authority. In that context the Supreme Court in paragraph 4 of the said decision made the following observations at page 1126:
It is obvious that when an appeal is made, the appellate authority can do one of three things, namely, (i) it may reverse the order under appeal, (ii) it may modify that order and (iii) it may merely dismiss the appeal and thus confirm the order without any modification, it is not disputed that in the first two cases where the order of the original authority is either reversed or modified it is the order of the appellate authority which is the operative order and if the High Court has no jurisdiction to issue a writ to the appellate authority it cannot issue a writ to the original authority. The question therefore is whether there is any difference between these two cases and the third case where the appellate authority dismisses the appeal and thus confirms the order of the original authority. It seems to us that on principle it is difficult to draw a distinction between the first two kinds of orders passed by the appellate authority and the third kind of order passed by it. In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it. In law, the appellate order of confirmation is quite as efficacious as an operative order as an appellate order of reversal or modification. Therefore, if the appellate authority is beyond the territorial jurisdiction of the High Court it seems difficult to hold even in a case where the appellate authority has confirmed the order of the original authority that the High Court can issue a writ to the original authority which may even have the effect of setting aside the order of the original authority when it cannot issue a writ to the appellate authority which has confirmed the order of the original authority. * * * * * * We therefore feel that on principle when once an order of an original authority is taken in appeal to the appellate authority which is located beyond the territorial jurisdiction of the High Court, it is the order of the latter authority which is the operative order after the appeal is disposed of....
Drawing inspiration from the aforesaid decision of the Supreme Court it is argued by the learned Advocate for the applicant that in view of the dismissal of the writ petition which was filed against the order of the tribunal regarding interim relief the tribunal's order merged into the order of the High Court and therefore non-compliance of the order of the tribunal, by reason of the doctrine of merger, constitutes contempt of the High Court. The learned Advocate for the petitioner also relies upon the decision of the Supreme Court in Shankar v. Krishna : [1970]1SCR322 . The facts involved in that decision were thus. The owner of a house who was the appellant before the Supreme Court filed a suit in the Small Causes Court for possession of the suit premises after evicting the tenant who was the respondent. The trial Court granted a decree for possession of a part of the suit premises. Both sides filed appeal in the Court of the District Judge. The decree of the trial Court was however affirmed in the appeal. The respondent then preferred a re visional application under Section 115 of the Code of Civil Procedure before the High Court. A learned Single Judge of the High Court who heard the revisional application dismissed the application. The respondent then moved a writ petition under Articles 226 and 227 of the Constitution before the High Court challenging the said order of the appeal Court. In paragraph 6 of the said decision the Supreme Court observed thus at page 4:
Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the statutes; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We do not therefore, consider that the principle of merger of order of inferior Courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal.
It is argued by the learned Advocate for the applicant in view of the said decision of the Supreme Court that the doctrine of merger applies not only to the order passed by the appellate authority, but it also applies to order passed by the revisional authority. He also refers in this connection to the decision of the Supreme Court in the State of Madras v. Madurai Mills : [1967]1SCR732 . However it may be mentioned that in the said decision of the Supreme Court it has been held that the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior authority and the other by a superior authority, passed in an appeal orrevision there is a fusion of merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute and that the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction. It is thus a settled law that the doctrine of merger is not a doctrine of rigid and universal application.
3. The question which is required to be decided is whether the doctrine of merger is applicable in the present case so as to make it a case of contempt of the High Court by reason of non-compliance of the order of the industrial tribunal regarding interim relief. It is true that the learned Advocate for the applicant has cited decisions as discussed above to show that the doctrine of merger applies to orders passed by the appellate authority or the revisional authority. But it has to be noticed that in all such cases the doctrine has been applied where appeal or revision was taken following the heirarchical line of redress provided by the concerned statutes. It is a well known proposition of law that an appeal is a continuation of the original proceeding. The doctrine of merger is an off-shoot of that proposition of law. Since the revisional jurisdiction in a hierarchical set up provided by statute is considered to be a substituted form or a restricted form of appellate jurisdiction within the parameters of the concerned statute the doctrine of merger has been applied in certain circumstances to revisional orders also. But the writ jurisdiction of the High Court or for that matter the jurisdiction exercised by the High Court under Articles 226 and 227 of the Constitution cannot be said to be an appellate or revisional jurisdiction in the sense in which an appellate or revisional proceeding is treated as a continuation of the original proceeding. The writ jurisdiction of the High Court which is a supervisory jurisdiction is not an appellate or revisional jurisdiction. It is an extraordinary original jurisdiction of the High Court and the proceeding in which this jurisdiction is exercised is an independent proceeding and not a continuation of the proceedings that might have occasioned the invocation of the writ jurisdiction in the particular matter. This view is also squarely sustained by the decision of the Supreme Court in State of U.P. v. Vijay Anand : [1962]45ITR414(SC) . What happened in that case is that the Additional Collector in exercise of the powers conferred on him under the provisions of U.P. Agricultural Income Tax Act, 1948 assessed one Vijay Anand to agricultural income-tax. The said Vijay Anand then moved a writ petition for quashing the said order on the ground that the Additional Collector had no jurisdiction to make the assessment. The High Court allowed the writ petition quashing the said assessment. Subsequently certain new provisions were enacted by an amending Act, namely, the U.P. Act No. XIV of 1956. The question that fell for consideration of the Supreme Court in the said decision State of U.P. v. Vijay Anand (supra) was whether the writ proceeding in the High Court was a continuation of the proceedings before the Additional Collector under the concerned Act. In paragraph 9 of the said decision the Supreme Court held that the High Court in exercise of its power in writ jurisdiction exercises original jurisdiction, though the said jurisdiction shall not be confused with the ordinary civil jurisdiction of the High Court and this jurisdiction, though original in character as contrasted with its appellate and rcvisional jurisdictions, is exercisable throughout the territories in relation to which it exercises jurisdiction and may, for convenience, be described as extraordinary original jurisdiction and that being so it cannot be contended that a writ petition under the Constitution is a continuation of the proceedings under the concerned Act. Therefore the doctrine of merger which applies to an appellate or revisional order where the original proceeding is treated to be continuing at the appellate or revisional stage also, is not applicable to an order passed by the High Court in its writ jurisdiction because the proceeding taken in the writ jurisdiction of the High Court is an independent proceeding taken in its extraordinary original jurisdiction and the same is neither an appeal nor a revision that could be treated as a continuation of any other proceedings elsewhere. To illustrate the matter let us take the example of a case where a municipal authority under the provisions of the relevant statute directs the owner of a premises to demolish certain unauthorised construction. Suppose the owner then moves the High Court in its writ jurisdiction against the order of demolition passed by the municipal authority. Suppose the High Court on consideration of the matter in its writ jurisdiction finds no reason to interfere with the impugned order of demolition passed by the municipal authority and simply dismisses the writ petition filed against the order of demolition. Suppose in spite of such dismissal of the writ petition the owner of the premises does not carry out the demolition order passed by the municipal authority. Can the municipal authority in the circumstances move the High Court against the owner of the premises for contempt of the High Court on the ground that the order of demolition passed by the municipal authority merged in the order of dismissal of the writ petition and therefore the non-compliance of the order of demolition as passed by the municipal authority constitutes a contempt of the High Court? The answer must be in the negative for the simple reason that the doctrine of merger is not applicable in the case because the writ petition challenging the order of the demolition could not be construed as a continuation of the original proceeding in which the order of demolition was passed by the municipal authority, as it would have been so in the case of statutory revision or appeal against the concerned order. Similarly suppose the appropriate administrative authority directs the holder of a licensed firearm to surrender the same. The holder of the firearm then challenges the order in a writ petition before the High Court. The High Court simply rejects the writ petition finding no reason to interfere with the impugned order. In spite of that the holder of the firearm docs not surrender the same. Could it be said that he has thereby committed a contempt of the High Court on the reasoning that by dismissing the writ petition the High Court has confirmed the order of the administrative authority and consequently the order of the administrative authority has merged in the order of the High Court and non-compliance of the order of the administrative authority therefore constitutes contempt of the High Court? For the same reason as discussed above here also the answer must be in the negative. A test for determining the applicability of the doctrine of merger in any particular case is the test whether the ultimate proceeding could be treated as a continuation of the original proceeding. If that be not so then there would be no question of merger of the order passed in the original proceeding with the order passed in the ultimate proceeding. The proceeding taken in the writ jurisdiction of the High Court is itself an original proceeding and cannot be treated as a continuation of the original proceeding in which the impugned order was passed as happens in the case of statutory appeal or revision. The exercise of writ jurisdiction not being an exercise in continuation of any earlier proceeding elsewhere but being an exercise in an original and independent proceeding itself, the same does not invoke the doctrine of merger in respect of the order or proceeding challenged before the High Court in its writ jurisdiction. Therefore there is no scope of invoking the contempt jurisdiction of the High Court for treating it to be a case of contempt of the High Court itself where the order challenged in the writ jurisdiction of the High Court has not been subsequently complied with in spite of dismissal of the writ petition. In our present case, as we have seen, the petitioner himself moved a writ petition against the order of his dismissal from service and that writ petition was dismissed by the High Court. If we are to go by the contention advanced by the learned Advocate for the petitioner regarding the doctrine of merger, in that case it will have to be taken that the order of dismissal from service which was challenged in the High Court by writ petition itself merged with the order of the High Court dismissing the writ petition and in that event the operative order of dismissal from service would be the order of the High Court. But that is not so. This is pointed out by me only to illustrate that the doctrine of merger would not apply to an order of the High Court passed in a writ petition. That being so there is therefore no scope of filing the present contempt application on the allegation that non-compliance of the order of the industrial tribunal relating to interim relief amounts to non-compliance of the order of the High Court by application of the doctrine of merger.
4. The learned Advocate for the applicant submits that the applicant had to file this application for contempt before the High Court because there is no provision in the Industrial Disputes Act for execution of the order of interim relief passed by the industrial tribunal. It is pointed out by the learned Advocate for the applicant that this position has been also accepted by the alleged contemners in the affidavit affirmed in this case. In my opinion an affidavit cannot be the deciding factor in regard to a question of law. In my opinion Section 33C(2) of the Industrial Disputes Act is available for execution of an order of interim relief. Law does not envisage the passing of an order without any remedy for enforcing the same. Be that as it may, the question of remedy is inconsequential in our present context. If in view of the facts and circumstances, the case does not amount to be a case of contempt of the High Court in that case the High Court cannot assume any additional jurisdiction on an untenable contempt application on the ground of hardship of the applicant. A question of law has to be decided on its own merit and not on emotional grounds.
5. Learned Advocate for the applicant has referred to the Full Bench decision of the Gujarat High Court in Sk. Mohammed Dhikhan v. Manager, Chandrabhanu Cinema : AIR1986Guj209 in support of his argument that the industrial tribunal constituted under the Industrial Disputes Act is a Court subordinate to the High Court as contemplated under Section 2 read with Section 10 of the Contempt of Courts Act, 1971. The question whether the industrial tribunal is a Court subordinate to the High court falling within the ambit of the Contempt of Courts Act is however outside the scope of the present contempt application. The present contempt application has been filed on the allegation that non-payment of interim relief constitutes violation of the High Court's order dated the 6th March, 1992 by application of the doctrine of merger. The cause title of the contempt application is also very clear in this regard. The application itself also has been so framed as to make out a case of civil contempt of the High Court. It is only at the concluding stage of the argument of learned Advocate for the applicant has also advanced an argument that the industrial tribunal is a Court subordinate to the High Court so that the violation of the order of the industrial tribunal regarding interim relief is punishable in the present contempt proceeding by the High Court as a case of contempt of a Court subordinate to the High Court. In my opinion this argument cannot be entertained in the present proceeding because the proceeding itself has not been initiated as a case for punishing contempt of a Court subordinate to the High Court. As we have seen, rather the proceeding has been initiated as a case of civil contempt for violation of the order of the High Court. Rule 15 of the Contempt of Courts Rules 1971 as framed by this High Court requires all petitions in connection with civil contempt of the High Court to be heard by the particular Judge or Judges in respect of whose order such a civil contempt has been committed. Rule 16, paragraph 1, requires that all petitions presented by the Advocate General and all petitions presented by any other person under Section 15 (that is, matters of criminal contempt) shall be moved before the Bench presided over by the Chief Justice or by such other Bench as the Chief Justice may from time to time appoint. The second paragraph of the rule 16 provides that all matters relating to contempt of subordinate Courts shall be dealt with by the Bench presided over by the Chief Justice or by such other Bench as the Chief Justice may from time to time appoint. Section 18(1) of the Contempt of Courts Act, 1971 provides that every case of criminal contempt under Section 15 shall be heard and determined by a Bench of not less than two Judges. It will thus appear from a combined reading of the different provisions of the Contempt of Courts Act. 1971 and the Rules framed thereunder by this High Court that so far as civil contempt of the High Court is concerned the same is required to be heard by the particular Judge or Judges in respect of whose order the civil contempt is committed. But so far as criminal contempt referred to in Section 15 is concerned, a petition in respect of the same is required to be moved before and heard by the Bench presided over by the Chief Justice or by such other Bench as the Chief Justice may from time to time appoint. Similarly matters relating to contempt of subordinate Courts (civil or criminal) are required to be dealt with by the Bench presided over by the Chief Justice or by such other Bench as the Chief Justice may from time to time appoint. The applicant has initiated the present proceeding as a case of civil contempt in respect of the order of a learned single Judge of the High Court, namely, Kalyanmoy Ganguly, J. Since this is allegedly a case of civil contempt this was required under rules to be heard by the learned Judge in respect of whose order the civil contempt has been allegedly committed. But since the concerned learned Judge, namely, Kalyanmoy Ganguly, J. was no more available at the time when the contempt application was sought to be moved the learned Advocate on record made an application to the Registrar of the Original Side of the High Court on 17-5-94 (which is on record), therein stating that the contempt application was to be moved before this Court against the wilful violation of the order of Kalyanmoy Ganguly, J. passed in a writ application being matter No. 617 of 1992 and since Kalyanmoy Ganguly, J. had laid office, assignment of the contempt application was necessary. Accordingly the learned Chief Justice assigned the contempt application to me. This aspect of the matter is pointed out by me to show that the applicant himself not only framed the contempt application as an application for civil contempt in respect of the order of a learned Single Judge of this Court but also in the letter addressed to the Registrar seeking assignment specifically mentioned that it was a contempt application in respect of an order of Kalyanmoy Ganguly, J. and sought for assignment accordingly. Since under the Rules an application for civil or criminal contempt of subordinate Court is required to be moved and heard by the appropriate Bench and not by a single Judge and since this matter, on application, has been assigned to me, as an application for contempt in respect of the order of Kalyanmoy Ganguly, J. and obviously not as a matter of contempt of subordinate Court which is required to be heard by a Bench, there is no scope of converting this application now as an application for contempt of a subordinate Court nor do I have the jurisdiction within the scope of the Rules or the assignment, to hear this matter as a case of contempt of subordinate Court. Therefore the plea of contempt of subordinate Court as now taken at the stage of argument cannot be entertained in this proceeding by me. The learned Advocate for the applicant further contended that it is also a case of criminal contempt of the High Court. This plea also cannot be entertained by me in this proceeding at this stage because the procedure for dealing with a criminal contempt would have been different and under the Act and the Rules a single Judge cannot hear and decide any application for criminal contempt falling under Section 15 of the Contempt of Courts Act.
6. In view of what I have recorded above I do not consider it necessary to go into the merit of the contempt matter. It is highlighted by the alleged contemnors that in spite of the order of Kalyanmoy Ganguly, J. the applicant has been taking obstructive attitude to drag on the proceeding before the industrial tribunal and even moved an application for amendment of the written statement before the tribunal at a late stage and the tribunal rejected the same and thereafter the petitioner moved a revisional application under Section 115 C.P.C. before the High Court and obtained an order of stay of the proceedings. However these matters are not necessary to be considered now. For reasons elaborately discussed above the present contempt application must fail. The contempt application is accordingly dismissed and the Rule is discharged. No cost is however ordered.