Asok Kumar Ganguly, J.
1. This contempt petition has been filed by the petitioner alleging violation of a judgment and order dated 4-3-99 passed by a Division Bench of Justice Shyamal Kumar Sen [as His Lordship then was] and Justice Dipak Prakash Kundu in MAT No. 339 of 1999.
2. From the operative portion of the said judgment it appears that the learned Judges of the Division Bench allowed the appeal and further gave a direction that 'the appellant-petitioner should be treated as in service without any break and he should be paid all consequential benefits in accordance with law within three months from the date of communication of this order'.
3. A few relevant facts may be noted. The service of the petitioner, a bus conductor, was terminated, inter alia, on the ground of unauthorized absence. Against the said order, an appeal was filed to the appellate authority under the rules and the appeal was rejected. Thereafter, a writ petition was filed which was numbered as CO. 5274 of 1992. A learned Judge of this Court hearing the writ petition quashed both the orders of the disciplinary authority and that of the appellate authority but the matter was ultimately remanded to the appellate authority for considering the whole matter afresh in accordance with the provision of the law and after giving an opportunity of hearing to the petitioner.
4. Against the said order, the aforesaid appeal was preferred by the petitioner before the Hon'ble High Court and he appellate Court was pleased to allow the appeal with the direction to reinstate the petitioner and with the aforesaid direction of paying consequential benefits. After the said order of the appellate Court was communicated, even though the contemners reinstated the petitioner but they did not pay the arrears of salaries and benefits together with increments for the period from 29th January, 1991 to 26th May, 1999 as such. It is submitted, that there is a contumacious disregard of the Hon'ble High Court's judgment and order as mentioned above.
5. In this case, three affidavits have been filed by three contemners separately but affidavits are in similar terms. In those affidavits the common stand of the alleged contemnor is that (i) the petitioner has already been reinstated in service and he joined the same w.e.f. 20-5-1999 (2) Arrears of the petitioner amounting to Rs. 3,157,70p. had been drawn in favour of the petitioner and the same is ready for payment and the petitioner was requested to draw the same amount but the petitioner refused to do so. (3) Against the period of absence of the petitioner, extraordinary leave has been granted to regularize the period of absence in order to treat the petitioner in continuous service without any break. (4) The period of absence has been ordered to be counted towards gratuity and pension for the purpose of length of service.
6. The admitted position is that pursuant to the aforesaid direction of the appellate Court, respondents have not given the petitioner the arrears of salary for the period during which he was kept out of service as a result of his termination from service.
7. The learned Counsel for the petitioner submits that since the appellate Court has held that the termination order is bad and the petitioner is entitled to continue his service without any break [page 5 of the appellate Court's judgment] and then again gave a positive direction upon the respondents to treat the petitioner in service without any break and there is also a direction that the petitioner should be paid the consequential benefit in accordance with law, the contemner must give the petitioner the salary for the period in question. By giving some partial benefits there has not been a total compliance of the Court's order and as such the contempt application has been filed by the petitioner for ensuring compliance of that order.
8. Counsel for the contemner, however, said that by giving the benefit as aforesaid they have complied with the Court's order and nothing more remains to be done and according to the learned Counsel for the contemner, the Courts order has been complied with in full both in letter and spirit.
9. The learned Counsel for the contemner further submits that in any event this contempt application is not maintainable in view of the following grounds : (a) The order of the Division Bench in respect of which contempt has been alleged is dated 4th March, 1999 and this contempt application was filed on 24th February, 2000. Even though the filing of the contempt petition is within a period of one year, but the initiation of the proceeding has not been done within a period of one year inasmuch as in the instant case the contempt petition was assigned by the Hon'ble Chief Justice before a Division Bench of Hon'ble Mr. Justice A. N. Ray sitting with Hon'ble Justice Dipak Prakash Kundu on 19th July, 2000. The said Bench released the matter on 10th November, 2000 and thereafter this contempt petition has been assigned before this Bench on 23-11-2000. In the mean time more than one year has lapsed. Therefore, today this Court cannot pass any order in favour of the petitioner on this contempt petition in view of the bar under Section 20 of the Contempt of Courts Act. The' provision of Section 20 of the Contempt of Courts Act is set out below :
Section 20. Limitation for actions for contempt : No Court shall initiate any proceeding for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed.
10. In support of the aforesaid contention the learned Counsel for the alleged contemner relied on a judgment of the Supreme Court in the case of Om Prakash Jaiswal v. D. K. Mittal, reported in : 2000CriLJ1700 . In paragraph 14 and 15 of the said judgment, the learned Judges have considered the meaning of the expression 'initiate any proceedings for contempt' and after construing the said expression the learned Judges held 'it is only when the Court has formed an opinion that a prima facie case for initiating proceedings for contempt is made out and that the respondents or the alleged contemner should be called upon to show cause why they should not be punished; then the Court can be said to have initiated proceedings for contempt'. The learned Judges further held that initiation of proceedings would only arise after a conscious application of mind of the Court to the facts and materials before it. The learned Judges also held that this must take place within a year from the date on which the alleged contempt has been committed 'failing which' the 'jurisdiction to initiate any proceeding for contempt is lost'. The learned Judges further held the Section 5 of the Limitation Act does not apply and Section 20 'strikes at the jurisdiction of the Court to initiate any proceedings for contempt'. It may be mentioned that in the case of Om Prakash Jaiswal (supra) the Hon'ble Supreme Court was dealing with contempt proceeding which arose out a petition under Article 226 of the Constitution.
11. Relying on the said judgment the learned Counsel for the alleged contemner argued that this contempt petition is barred in view of section 20 of the said Act. The learned Counsel also raised a few technical points on the frame of the contempt application but those points were not seriously pressed and as such, this Court is not considering them seriously but the point relating to bar under Section 20 of the Act calls for serious consideration by this Court.
12. Before examining contentions raised by the learned Counsel for the alleged contemner relying on the ratio in the case of Om Prakash (2000 Cri LJ 1700) (SC) (supra) to the facts of this case, this Court proposes to examine the nature and scope of contempt proceeding before a High Court from another point of view. The alleged act of contempt had taken place on 27th May, 1999 inasmuch as while passing an order for reinstating the petitioner in service, the alleged contemners refused at the same time to give the petitioner the full benefit. In other words, the learned Counsel contended that the respondents had three months time from 4th March, 1999 to comply with the Court's order. Within three months from 4th March, 1999, the order dated 27th May, 1999 was passed but that did not fully comply with the Court's order. Thus contempt was committed.
13. In this case, contempt petition was filed on 20th February, 2000 which is well within a year from 27th May, 1999.
14. Examining the contempt petition in the context of the rules framed by the Calcutta High Court, it appears to be maintainable. The Full Court of Calcutta High Court framed the Calcutta High Court Contempt of Court Rules, 1975 (henceforth called the said rules). The said rules have been made in exercise of powers conferred by Section 23 of the Contempt of Courts Act, 1971 (hereinafter called CCA) and also in exercise of power under Article 215 of the Constitution.
15. Section 23 of CCA is to the following effects :
Section 23. Power of Supreme Court and High Court to make rules : The Supreme Court or, as the case may be, any High Court may make rules, not inconsistent with the provisions of this Act, providing for any matter relating to its procedure.
16. From a perusal of Section 23 of CCA, it is clear that the Section authorizes the High Court to make rules which are not inconsistent with the provision of the CCA and such rules may provide for any matter relating to procedure.
17. The said rules framed by the Calcutta High Court in 1975 have not been pronounced upon by any Court to be contrary to or inconsistent with any provision of CCA. The said rules hold the field even now from the time of its promulgation in 1975. Under Rule 2(1) of the said rules, proceedings in connection with a civil contempt may be initiated on a petition being presented by a party or parties aggrieved.
18. The importance of rules framed by the High Court under Section 23 of CCA in the context of exercise of contempt jurisdiction by the High Court came up for consideration by Supreme Court twice in recent times. In the decision rendered in the case of High Court of Judicature of Allahabad v. Raj Kishore reported in : [1997]2SCR429 , Justice Majmudar speaking for the Court in Three-Judge Bench held in paragraph 14, page 1193 of the report is set out below :
Contempt jurisdiction is an independent jurisdiction of original nature whether emanating from the Contempt of Courts Act or under Article 215 of the Constitution of India. How such original jurisdiction can be exercised is a matter which can legitimately be governed by relevant Rules framed by the High Court on its administrative side by exercising its rule-making power under Section 23 of the Act or under its general rule-making power flowing from the relevant provisions of the constitutional scheme as seen earlier.
19. A year thereafter from the same High Court another matter raising almost the same question in a different context came up before the Apex Court in the case of Dr. L. P. Mishra : 1998CriLJ4603 . A Three-Judge Bench set aside the punishment given by the High Court in a contempt matter involving grave allegations in view of the fact that the Allahabad High Court Rules relating to contempt jurisdiction were not followed. The matter was remitted for fresh hearing in accordance with the rules.
20. So the importance of the contempt rules framed by the High Court while High Court is exercising the contempt jurisdiction has been judicially recognised in these two cases.
21. On the basis of the rules framed by the Calcutta High Court, the contempt petition is clearly maintainable.
22. In Omprokash (2000 Cri LJ 1700) (SC) (supra), the contempt proceeding initiated in Allahabad High Court was considered. The contempt rules framed by the Allahabad High Court does not have any rule similar to Rule 2(1) of the said rules framed by Calcutta High Court. So in the context of Allahabad High Court Rules relating to contempt, the interpretation of Section 20 of CCA may be in accordance with those rules. So this Court is of the view that the ratio in Omprakash (supra) may be read as confined to its facts.
23. The jurisdiction of High Court in contempt deserves to be considered on a much broader perspective.
24. This jurisdiction to punish for contempt is an inalienable attribute of and inheres in every Superior Court of Record. This is a jurisdiction of necessity. This has been lucidly explained by Oswald in his treatise on Contempt of Court by extracting Wilmot's opinion in the case of R. v. Almon (1765) Wilm 243 at p. 270. Those observations are as follows :
It is now the undoubted right of a Superior Court to commit for contempt. The usual criminal process to punish contempts was found to be cumbrous and slow, and therefore, the Courts at an uncertain date assumed jurisdiction themselves to punish the offence summarily, brevi manu, so that cases might be fairly heard, and the administration of justice not interfered with. A Court of justice without power to vindicate its own dignity, to enforce obedience to its mandates, to protect its officers, or to shield those who are entrusted to its care, would be an anomaly which could not be permitted to exist in any civilized community.
25. This position has been acknowledged in two old cases both of which originated from Calcutta High Court. The judicial Committee of the Privy Council in Surendra Nath Banerjee v. Chief Justice and Judges of the High Court at Fort William in Bengal, reported in (1882-83) 10 Ind App 171 is the older of the two. In 1883, Calcutta High Court convicted Surendra Nath Banerjee for contempt of Court and sentenced him to imprisonment for two months for publishing a libellous article on a Judge of Calcutta High Court. On appeal, Privy Council upheld the judgment observing that the High Courts in Indian Presidencies as Superior Court of Records have the same power which is exercised by the Superior Court of Records in England. Privy Council also held that on the principles of Common Law, every Court of Record is the sole and exclusive judge of what amounts to a Contempt of Court.
26. In the next Calcutta case In Re Abdool, 8 WR Cr 32, Chief Justice Bearnes Peacock reiterated the same position by observing 'there can be no doubt that every Court of Record has the power of summarily punishing for contempt'.
27. This aspect of the matter was considered for the first time by Supreme Court as early as in 1954 the case of Sukhdev Singh v. Hon'ble C. J. S. Teja Singh and the Hon'ble Judges of Pepsu High Court at Patiala, reported in AIR 1954 SC 186 : 1954 Cri LJ 460.
28. Speaking for the Court, Justice Vivian Bose, observed that the power of a High Court to punish for contempt is a special jurisdiction which is inherent in all courts of record. The learned Judge observed in para 4 of the judgment that contempt is a special subject and the jurisdiction is conferred by a special set of laws peculiar to Courts of Record.
29. In Sukhdev Singh (supra) the Hon'ble Supreme Court also had taken note of the judgment of the Privy Council in the case of Surendranath (1882-83 (10) Ind App 171) (surpa).
30. Justice Vivian Bose traced the origin of the concept of the court of record in other jurisdiction also. In paragraph 6 of the judgment, the learned Judge noted that the Charter of 1774 which established the Supreme Court of Bengal provided that the Judges should have the same jurisdiction as the Courts of King's Bench in England and it was also expressly stated in Clause 21 thereof that the Court is empowered to punish for contempt. The learned Judge further noted when the Supreme Court of Bengal was abolished, the High Court Act of 1861 continued those powers with the Chartered High Courts by virtue of Sections 9 and 11 and Clause 2 of the Letters Patent of 1865. The learned Judge noted that despite these statutory provisions, the Privy Council in Surendranath (supra) in 1883 did not trace the origin of contempt jurisdiction of Calcutta High Court on the basis of Clause 15 of its Charter but decided to base such jurisdiction on common law principles. According to Justice Vivian Bose the principle of common law is simply this 'that the jurisdiction to punish for contempt is something inherent in every court of record'.
31. The learned Judge also referred to 1884 edition of Bel Chamber's Practice of Civil Court and also Hasbury's Laws of England (Hailsham Edition) to hold that superior Courts have inherent jurisdiction of punishing for contempt. Then came the Government of India Act, 1915. Under Section 106 of Government of India Act, 1915, all the High Courts continued to exercise the same jurisdiction, power and authority at the commencement of that Act and Section 106 of Government of India Act, 1915 recognised that the High Courts are Courts of Record.
32. Then came the first legislation relating to contempt of courts in India known as The Contempt of Courts Act, 1926. This Act preserves the existing contempt jurisdiction of the High Courts established by Letters Patent but the only limitation which was placed on that jurisdiction by the 1926 Act is on the amount of penalty which the Court could inflict.
33. Then came the Government of India Act, 1935. In Section 220(1) of the Government of India Act, 1935, it has been made clear that every High Court shall be a Court of Record. In 1950 came the Constitution of India and Article 215 recognised this preexisting position about the contempt jurisdiction of the High Court. Article 215 runs thus :
215. High Courts to be Courts of record.-- Every High Court shall be a Court of record and shall have all the powers of such a Court including the power to punish for contempt of itself.
34. Then came Contempt of Courts Act of 1952.
Commenting on the statutory provisions of 1952 Act as also the previous Act namely the Contempt of Courts Act, 1926, the learned Judge observed in paragraph 13 of Sukhdev Singh (1954 Cri LJ 460) (supra) that the only limitation recognized in these acts on the powers of High Court to punish for contempt is the quantum of punishment which the High Court could inflict. The learned Judge also noted the judgment of the Privy Council in Parshuram Detraram v. Emperor reported in of the report in Parshuram (supra) the Privy Council observed 'the summary power of punishing for contempt is a power which the Court must of necessity possess.' The learned Judge also considered the impact of the said provision under the Constitution and observed 'in any case so far as contempt of a High Court itself is concerned, as distinct from one of a subordinate Court, the Constitution vests these rights in every High Court, so no act of a Legislature could take away that jurisdiction and confer it afresh by virtue of its authority', (para 32)
35. Thus the learned Judge held that Code of Criminal Procedure does not apply in matters of contempt by the High Court. In dealing with its own contempt, the High Court can deal with it summarily and adopt its own procedure. All that is necessary is that the procedure should be fair and the contemner is made aware of the charge against him and given a fair and reasonable opportunity to defend himself.
36. The principle enunciated in Sukhdev Singh (1954 Cri LJ 460) (SO (supra) has been followed subsequently by Supreme Court in the case of R.L. Kapur v. State of Tamil Nadu reported in 0065/1972 : 1972CriLJ643 . In approving the ratio in Sukhdev (supra), the learned Judges of Supreme Court observed that the jurisdiction to punish for contempt is a special one and is not arising out of the Contempt of Courts Act. 1952. The learned Judges further observed that the Constitution vests the power to punish for contempt in every High Court and so no act of Legislature could take away that jurisdiction and confer it afresh by virtue of its own authority'. It may be noted that the said judgment even though delivered in 1971 did not take into consideration the provision of CCA.
37. The existing power of the High Court as a Court of Record has been preserved and continued under Article 225 of the Constitution. The provision of Article 225 is set out below :
225. Jurisdiction of existing High Courts.-- Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the judges thereof in relation to the administration of Justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution.
38. Commenting on this article the Madras High Court in the case of Hari v. Chief Conservator reported in AIR 1959 Mad 436 noted that the inherent jurisdiction of the High Court is saved by this provision.
39. Again commencing on this article, the Andhra Pradesh High Court in a decision reported in 0065/1967 : AIR1967AP299 noted that Article 225 continues the power of the High Court to punish for contempt of Court.
40. Similar observations have been made by the learned Judges in the case of Md. Ikram Hussain v. State of U. P. reported in : 1964CriLJ590 . The Supreme Court while considering the disobedience to an order of High Court passed in connection with a proceeding for a writ of Haveas Corpus held that such a direction has to be obeyed and if it is disobeyed the contemner is punishable by attachment and imprisonment. The learned Judges further observed in paragraph 11 of the report that in case of disobedience of its order, 'High Court could punish it by brevi manu by ordering the appellant to be detained in prison. The High Court's powers for punishment of contempt have been preserved by the Constitution and they are also inherent in a Court of Record' (page 1629). These observations virtually are in tune with the principles endorsed by Oswald, referred to above.
41. In the said paragraph at page 1630 (of AIR) : at p. 595 of Cri LJ the learned Judges held 'The only curbs on the powers of the High Court to punish for contempt of itself are contained in the Contempt of Courts Act (at that time 1952 Act was holding the field) which limits the term for which a person can be imprisoned to six months simple imprisonment'.
42. In 1990, the Hon'ble Supreme Court had the occasion to examine the scope of High Court's power to punish for contempt with reference to Article 215 vis-a-vis CCA in a number of cases.
43. The first decision in this series was given in the case of Delhi Judicial Service Association, Tis Hazari Court v. State of Gujarat reported in : AIR1991SC2150 .
44. In this decision, the learned Judges traced the origin of High Court's power in Contempt jurisdiction even prior to the enactment of the Contempt of Courts Act, 1926. The learned Judges held that such power was regulated by principles of Common Laws of England. The learned Judges have taken note of the decision of the Madras High Court in the case of Venkat Rao reported in : (1911)21MLJ832 and of the Judgment of Bombay High Court in Mohan Das Karam Chand Gandhi reported in : (1920)22BOMLR368 and noted that the High Courts possess the same power to punish for the contempt of subordinate Courts as the Courts of King's Bench Division had by virtue of Common Laws in England. Similar views of Allahabad High Court in Hadi Husain v. Nasir Uddin Haider case reported in : AIR1926All623 was also noted. Considering all these judgments the learned Judges have quoted with approval the observation of the Full Bench of Allahabad High Court in this regard. Those observations of the Full Bench of Allahabad High Court being very relevant are set out below :
The High Court as a Court of record and as the protector of public justice throughout its jurisdiction has power to deal with contempts directed against the administration of justice, whether those contempts are committed in face of the Court or outside it, and independently or whether the particular Court is sitting or not sitting, and whether those contempts relate to proceedings directly concerning itself or whether they relate to proceedings concerning an inferior Court, and in the latter case whether those proceedings might or might not at some stage come before the High Court.
45. The learned Judges have noted that almost all other High Courts have expressed similar views. The view of Calcutta High Court to the contrary in the case of Legal Remembrancer v. Motilal Ghosh (1914) ILR 41 Cal 173 : 1913(14) Cri LJ 321 was also noted. The learned Judges noted that this divergence of judicial opinion was set at rest by Contempt of Courts Act 1926 and some doubts which persisted after 1926 Act were cleared by the Contempt of Courts Act, 1952. But the Court noted that under those Acts, the Parliament did not confer any new jurisdiction on High Court. It merely affirms the pre-existing and inherent jurisdiction of a Court of Record.
46. Dealing specifically with CCA, the learned Judges have noted that the said Act was enacted to define the powers of Court in punishing contempt of Court and to regulate their procedure. After scanning the provisions of CCA, the Hon'ble Supreme Court did not point out any provision which curtailed High Court's power with regard to its inherent Contempt jurisdiction (para 26).
47. The next decision on this aspect was given in the case of Pritam Pal v. High Court of Madhya Pradesh reported in : 1992CriLJ1269 . In paragraphs 13, 14 and 15 of the judgment, the learned Judges of the Supreme Court observed that in their opinion every High Court, which is a Court of Record, is vested with all powers of such Court including the power to punish for contempt or itself.
48. The learned Judges further held in Pritam Pal (supra) that even though the 'contempt jurisdiction' on the Supreme Court and the High Court can be regulated by the appropriate Legislature under entry 77 of list 1 and entry 14 of list III and in exercise of which the Parliament has enacted the CCA, the 'contempt jurisdiction of the Supreme Court and the High Court is given Constitutional foundation by declaring it to be Courts of Record under Articles 129 and 215'. Their Lordships further observed that this 'inherent power of the Supreme Court and the High Court cannot be taken away by any legislation short of constitutional amendment'. By referring to Section 22 of CCA, 71, their Lordships observed that its proper interpretation should be that 'Constitutional jurisdiction of the Supreme Court and the High Court under Articles 129 and 215 cannot be curtailed by anything in the Act of 1971'. (para 15)
49. In support of the aforesaid proposition, the learned Judges relied on the previous judgment of the Supreme Court in Sukhdev Singh (1954 Cri LJ 460) (SC) (supra).
50. The learned Judges further held that the views expressed in Sukhdev Singh (supra) have been followed in R. L. Kapur (1972 Cri LJ 643) (supra) and also have been affirmed in the case of Delhi Judicial Service (1991 Cri LJ 3086) (SC) (supra).
51. After discussing various case laws, the learned Judges, in paragraph 41 of Pritam Pal (1992 Cri LJ 1269) (SC) (supra) laid down the following propositions :
(1) The power conferred on the High Court and the Supreme Court under Articles 215 and 129 respectively is an inherent power.
(2) The jurisdiction vested is a special one and is not derived from any statute but is derived from the Articles of the Constitution.
(3) Such power cannot be controlled or limited by any statute or any Rules.
(4) The caution to be observed in the exercise of such power is that it must be exercised sparingly and the procedure to be followed should be fair and the contemner should be aware of the charge against him and given reasonable opportunity to defend himself.
52. The next decision of the Supreme Court in which the contempt jurisdiction of the High Court in the context of Article 215 of the Constitution came up for consideration is in the case of 'In Re : Vinay Chandra Mishra', reported in : 1995CriLJ3994 . In that case para 26 of the judgment in the Delhi Judicial Service (1991 Cri LJ 3086) (SC) (supra) was quoted in support of the proposition that 'inherent powers of a Superior Court of record had remained unaffected even after codification of contempt law'. The learned Judges have also noted in para 45 In Re : Vinay Chandra Mishra (supra) that the contempt jurisdiction of the Supreme Court under Article 129 of the Constitution (which is similar to contempt jurisdiction of the High Court under Article 215) is independent of the statutory law of contempt enacted by Parliament. The learned Judges have also held that the Contempt jurisdiction of the Suprior Court of Record 'sui generis' and such jurisdiction is constitutional and cannot be controlled by any statute specially CCA.
53. The correctness of the said judgment 'In Re : Vinay Chandra Mishra (1995 Cri LJ 3994) (SC) (supra) was challenged subsequently by the Supreme Court Bar Association through its Honorary Secretary by filing petition under Article 32 of the Constitution. While issuing notice on the said petition the Supreme Court limited its scope of enquiry by its order dated 21st March, 1995. The said order runs thus :
The question which arises is whether the Supreme Court of India can while dealing with contempt proceedings exercise power under Article 129 of the Constitution or under Article read with Article 142 of the Constitution or Article 42 of the Constitution can debar a practicing lawyer from carrying on his profession as a lawyer for any period whatsoever. We direct notice to issue on the Attorney General of India and on the respondents herein. Notice also issued on the application for interim stay. Having regard to the importance of the aforesaid question we further direct that this petition be placed before a Constitution Bench of this Court.
54. The Hon'ble Supreme Court's final judgment on this question by a Constitution Bench was reported in the case of Supreme Court Bar Association v. Union of India in : [1998]2SCR795 which is also reported in : [1998]2SCR795 . The Constitution Bench of the Supreme Court while delivering its judgment made it clear that in paragraph 4 page 1899 of the report in AIR, that the only question which the Constitutional Bench was called upon to decide is 'Whether the punishment for established Contempt of Court committed by an advocate can include punishment to debar the concerned advocate from practice by suspending his licence (sanad) for a specified period in exercise of its powers under Article 129 read with Article 142 of the Constitution of India'.
55. Answering the said question in the negative, the Supreme Court upset only to a limited extent the law laid down, in re : Vinay Chandra Mishra (1995 Cri LJ 3994) (supra). This is apparent from para 76 of the Judgment of the Constitution Bench. The said para is set out below :
Thus, to conclude we are of the opinion that this Court cannot in exercise of its jurisdiction under Article 142 read with Article 129 of the Constitution, while punishing a contemner of committing contempt of Court, also impose a punishment of suspending his licence to practice, where the contemner happens to be an Advocate. Such a punishment cannot even be imposed by taking recourse to the appellate powers under Section 38 of the Act (and not an appeal relating to professional misconduct as such). To that extent, the law laid down in re : Vinay Chandra Mishra : 1995CriLJ3994 is not good law and we overrule it.
56. The Supreme Court held that this power of suspending the licence of an advocate to practice is a' power which is given to a statutory authority, namely, the Bar Council and it is not permissible for the Supreme Court 'to take over' the functions of statutory bodies and to 'perform' their functions (para 81).
57. So except the aforesaid limited area pointed out above, the Supreme Court did not overrule the other aspect of the law laid down 'In Re : Vinay Chandra Mishra (supra). In fact, the Supreme Court did not interfere with the other punishment of suspended sentence of imprisonment imposed 'In Re : Vinay Chandra Mishra' (supra).
58. In High Court of Judicature at Allahabad : [1997]2SCR429 (supra) Justice Mazmudar held that 'Article 215 saves the inherent power of the High Court as a Court of Record to suitably punish the contemner' (para 9)
59. Recently in another case the Supreme Court again considered the width of contempt jurisdiction of the High Court in the context of Article 215 of the Constitution in the case of T. Sudhakar Prasad v. Government of Andhra Pradesh reported in (2001) 1 SCC 516 : 2000 AIR SCW 4611. In this decision the Supreme Court considered the Constitution Bench judgment in Supreme Court Bar Association : [1998]2SCR795 (supra). After considering the said judgment, the Supreme Court has held in para 9 that under Article 215 of the Constitution no new jurisdiction or status is conferred on the High Court. It merely recognizes the pre-existing situation. It also held that such inherent power of punishment for contempt is summary and further went on to held as follows :
It is not governed or limited by any rules of procedure excepting the principles of natural justice. The jurisdiction contemplated by Articles 129 and 215 is inalienable. It cannot be taken away or whittled down by any legislative enactment subordinate to the Constitution. The provisions of the Contempt of Courts Act, 1971 cannot be used for limiting or regulating the exercise of jurisdiction contemplated by the said two articles.
60. In para 10 of the said judgment, the learned Judges have summarized the principles laid down by the Constitution Bench of the Supreme Court in Supreme Court Bar Association (supra). While summarizing the said principles, Justice Lahoti, speaking for the Court has held as follows :
No act of Parliament can take away that inherent jurisdiction of the Court of record to punish for contempt and Parliament's power of legislation on the subject cannot be so exercised as to stultify the status and dignity of the Supreme Court and/or the High Courts, though such a legislation may serve as a guide for their determination of the nature of punishment which a Court of record may impose in the case of established contempt.
61. Similar views have been recorded in the report of Sanyal Committee which was formed by the Government of India to scrutinize the law of contempt in the context of Constitutional changes. As law of Contempt till then was considered 'uncertain and undefined', the expert Committee consisting of Sri H. N. Sanyal, the then Additional Solicitor-General of India was formed to scruinize the entire law. The Committee was required to examine the law relating to Contempt of Court and to suggest amendments with a view of clarifying and reforming the law wherever necessary and to make recommendation for codification Sanyal Committee submitted its detailed report on 28th February, 1963 along with a draft bill. Many of the provisions of CCA are based on those recommendations.
62. Dealing with the topic of Parliament's power to legislate on Contempt especially keeping in mind the position of Supreme Court and High Courts, the recommendations of the Committee are :
The power of Parliament to legislate in relation to the law of contempt of these Courts, would, therefore, have to be exercised in such a way that the purpose of the constitutional provisions is not defeated. In short, Parliament's power to legislate as to contempt ought not be so exercised as to stultify the status and dignity of these courts. It may regulate bona fide the law of contempt for the purpose of removing any undue fetters on the fundamental right of freedom of speech. But it must stop far short of impairing the status of the Courts or the sanctity of the administration of justice. In our opinion, the two limitations we have just mentioned bring out fully the implications of Articles 129 and 215 of the Constitution.
63. This is also the consistent view of the Supreme Court right from 1954 up to 2001.
64. The learned Counsel for the respondent, however relied on various judgments of different High Courts in order to contend that bar created under Section 20 of CCA must operate regardless of the Constitutional provision under Article 215. In sup-, port of the aforesaid contention, the learned Counsel very much relied on the Division Bench judgment of Karnataka High Court in the case of High Court of Karnataka v. Y. K. Subanna, reported in 1990 Cri LJ 1159. The learned Counsel relied on para 91 of the said judgment wherein the learned Judges of Karnataka High Court held that the Court is of the view that Section 20 of CCA does not derogate from the power vested in every High Court under Article 215 of the Constitution and the inherent power of the High Court can be exercised in all its ambit and scope within a period of one year prescribed by Section 20. The learned Counsel also relied on para 102 of the said judgment in order to contend that the period of limitation provided in Section 20 is applicable to contempt proceedings in High Court and any contempt petition which does not comply with the provisions of Section 20 of the CCA 1971 cannot be entertained.
65. The learned Counsel also relied on a Division Bench judgment of Andhra Pradesh High Court in the case of S. J. G. M. High School v. The Director of School Education, Government of Andhra Pradesh, reported in 1996 Cri LJ 699. In that judgment reliance was placed by the learned Counsel on para 14 in order to urge that the Court issued notice before admission of the matter but the said notice does not come within the meaning of initiation of the proceeding by the Court. Since one year has elapsed before the proceedings have been initiated, the contempt proceeding must fail.
66. Reliance was also placed by the learned Counsel on the judgment in the case of Hari Nandan Agarwal v. S. N. Pandita, reported in : AIR1975All48 . The learned Counsel placed reliance on interpretation of Section 20 of CCA 1971, given in para 25 of the said judgment and urged that Court should also follow the said interpretation in dismissing this contempt proceeding.
67. Reliance was placed by the learned Counsel also on the decision of the Allahabad High Court in the case of Gulab Singh v. The Principal, Sri Ramji Das, reported in : AIR1975All366 . The learned Counsel relied on the observation of the Court which is to the effect that the petitioner by filing a contempt application has no right to have the respondent punished for contempt. His only duty is to bring to the notice of the Court the facts of alleged contempt and then it is a matter between the High Court and the respondent. Since the petitioner does not have any right which has been prejudiced if the respondent is not punished, the petitioner should not be heard to say that he suffered for the mistake of the Court. In the facts of that case what happened was that on 17-7-1973 the High Court did not like to initiate contempt proceedings and directed that the matter will wait till the decision of the Writ Petition No. 1015 of 1973. It was clear that because of this direction of the High Court to wait for the decision in the other case, the period of one year ran out. Even then the Court held in para 8 of the said judgment that there is no provision under CCA which stops the running of time of one year and such the contempt petition was dismissed because of lapse of one year period.
68. Reliance was placed by the learned Counsel on the judgment of the Gujarat High Court in the case of Dineshbhai A. Parikh v. Kripalu Co-operative Housing Society reported in : AIR1980Guj194 . The learned Judges of the Division Bench of the Gujarat High Court held that Section 20 of the CCA '71 places an absolute fetter on the power of the Court to initiate proceedings in contempt after the expiry of a period of one year from the date on which the contempt was committed. The learned Counsel, therefore, submitted that following the said principle as laid down in Dineshbhai's case (supra), this Court should dismiss this contempt petition.
69. Reliance was also placed by the learned Counsel on the judgment of the Calcutta High Court in the case of Arthur Branwell & Co. Ltd. v. Indian Fibers Pvt. Ltd. reported in (1993) 2 Cal LJ 182. The learned Counsel relied on para 9 of the judgment in Arthur Branwell's case (supra) in order to contend that Section 20 of the CCA '71 is procedural in nature having prescribed a period of limitation and the said section being procedural, the Parliament has the authority to enact such a law. The learned Counsel relied very much on the finding of the learned Judges that Section 20 of the CCA '71 is not ultra vires and no contempt proceeding can be initiated after the period of limitation prescribed under Section 20 of CCA runs out.
70. The learned Counsel also relied on another Division Bench judgment of the Karnataka High Court in N. Venkataramanappa v. D. K. Naikar reported in : AIR1978Kant57 . It was a case of criminal contempt and it appears that in order to initiate the same, consent of the Advocate-General was sought for and as a result of which time of one year elapsed. On those facts the learned Judges held that the bar under Section 20 of the CCA '71 is an absolute one and the same bars the initiation of any proceeding for contempt, after the expiry of the said period, either on the application of a party or suo motu and as such the contempt petition was dismissed.
71. Relying on those judgments, the learned Counsel urged that this Court should dismiss this contempt petition as Section 20 of CCA '71 has been interpreted by different High Courts as imposing an absolute fetter and therefore, this Court should accept the said interpretation of different High Courts and dismiss this contempt petition.
72. Mr. Samaraditya Pal, the learned Advocate who rendered invaluable assistance to the Court as an Amicus Curie has drawn the attention of this Court to a few judgments delivered by some learned Judges of different High Courts taking a contrary view.
73. The first of such judgment to which the attention of this Court was drawn was delivered by a learned Single Judge of this Court in the case of Begunkodar High School v. Samarendra Bondopadhyay reported in (1996) 2 Cal LJ 349. The learned Single Judge held that contempt jurisdiction is the only mode for executing an order passed under Article 226 of the Constitution of India. Therefore, CCA is never intended to curtail the powers of the High Court by putting a period of limitation for execution of the orders passed under Article 226 of the Constitution of India. The learned Judge however, held that if a narrow interpretation of Section 20 of CCA is accepted, then an authority will violative an order of the Court passed under Article 226 of the Constitution of India with impunity and the remedy under Article 226 will be rendered nugatory after a lapse of one year from the date of disobedience of that order and the person violating the Court's order will go scoot free. On the basis of those reasons, the learned Judge held that the period of limtation prescribed under Section 20 of CCA is not applicable to proceedings for contempt initiated in respect of violation of an order passed by the High Court under Article 226 of the Constitution of India.
74. The learned Counsel also drew the attention of this Court to two judgments of the Andhra Pradesh High Court. One is in the case of Nallamala Venkateswara Rao v. P. Prabhakar reported in (1997) 6 Andh LT 718. The learned Judge after referring to the decision of the Supreme Court in the case of Pritam Pal's (1992 Cri LJ 1269) (supra) and also a Full Bench decision of the Kerala High Court which will be considered by this Court later held in para 19 of the judgment that the power vested under Article 215 of the Constitution of India is independent of the CCA and the same cannot be restricted or limited and the learned Judge held that the period of one year mentioned in Section 20 of the CCA '71 is not applicable to contempts of High Court. While saying so, the learned Judge refused to follow the previous judgment of the learned Single Bench of the same High Court in the case of Advocate-General, Andhra Pradesh, Hyderabad v. A. V. Koteswara Rao reported in (1984) 1 Andh LT 69 which is also reported in 1984 Cri LJ 1171. In Advocate General's case (supra) the learned Judge of the said High Court has taken a contrary view on the interpretation of Section 20 of the CCA. Attention of this Court was also drawn to a Full Bench decision of the Kerala High Court in the case of A. Mayilswami v. State of Kerala, reported in 1995 Cri LJ 3830. In para 5 of the said judgment the Full Bench of the Kerala High Court relying on the judgment of the Supreme Court in Pritam Pal (1992 Cri LJ 1269) (supra), held that the period of one year mentioned in Section 20 of the CCA is not applicable to a case where contempt proceeding was initiated for disobedience of an order of the High Court. The learned Judge has also held that the power conferred on the High Court under Article 215 of the Constitution of India is unfettered and the time limit specified in Section 20 of CCA cannot apply.
75. The learned Counsel for the petitioner has relied on a judgment of Bombay High Court in the case of Sarladevi Parbati Kumari Rungta v. Shiba Prosad Rungta, reported in 1988 Cri LJ 558. In that case, the learned Judge held that the order in respect of which the contempt proceeding was initiated was an order for payment of maintenance during the pendency of the appeal. The learned Judge held that such payment of maintenance has to be given every month and non-payment is a recurring cause for contempt. In view of such recurring causes, the proceedings for contempt are not barred by limitation under Section 20 of CCA.
76. Similar view has been expressed by the Hon'ble Supreme Court in the case of Ganpat Ram Raj Kumar v. Kaluaram : AIR1989SC2285 where the learned Judges held in para 7 of the Judgment that the case of contempt consisted of acts of not giving possession. The learned Judges held that failure to give possession being the alleged act of contempt it is a case of continuous wrong. Therefore, there is no scope for application of Section 20 of the Act.
77. Relying on those two judgments, the learned Counsel for the petitioner urged that in the instant case the failure on. the part of the respondent to pay the petitioner his pay for the period in question is a continuing wrong inasmuch as for such failure to pay the petitioner his due pay scale has not been fixed and the petitioner is suffering every month for this. So the alleged contempt committed by the respondent being a continuing wrong, Section 20 cannot be applied. There is ample substance in this contention but because of the view which this Court is taking in this matter, no finding is given on this aspect of this matter.
78. From the various judgments of the Supreme Court where the contempt jurisdiction of the High Court was considered visa-vis Article 215, the following principles emerge :
(1) As a Superior Court of Record the contempt jurisdiction of High Court is inherent in it and it has not been conferred for the first time under Article 215. Article 215 by assimilating the common law principles relating to contempt jurisdiction of a Superior Court of Record recognized the preexisting position which is inherent in such Courts. The contempt jurisdiction of the High Court is, therefore, 'sui juris'.
(2) The jurisdiction of the High Court under Article 215 is a jurisdiction of necessity inasmuch as without this jurisdiction a Court of Record cannot properly and effectively carry on the administration of justice or maintain and uphold the rule of law.
(3) Since the contempt jurisdiction of a High Court is an inherent one and is recognized and saved by the Constitution, it has a constitutional foundation and this cannot be curtailed or even curbed by any legislation short of constitutional amendment.
(4) The said jurisdiction is not governed under or limited by any rules of procedure excepting principles of natural justice and fair play. The only limitation in the exercise of such jurisdiction is on the quantum of punishment. In other words in imposing punishment under contempt jurisdiction, the Court has to follow the provision of Section 12 of CCA. To put it differently, a punishment which is not provided under CCA cannot be imposed.
(5) This limitation on punishment on the power of the High Court in awarding punishment has been recognised both in the provisions of Contempt of Courts Acts 1926 and of 1952 and has been interpreted in the case of Sukhdev Singh (1954 Cri LJ 460) (SC) (supra).
(6) But the CCA cannot be used for either (I) limiting or (11) regulating the exercise of jurisdiction contemplated by Articles 129 arid 215 of the Constitution. (Para 9 of T. Sudhakar Prosad (supra))
(7) An act of Parliament cannot take away the inherent jurisdiction of the Court of Record to punish for contempt even though such a legislation can serve as a 'guide' for the determination of the nature of punishment which a Court of Record may impose in case of established contempt, (para 10 of Sudhakar Prosad (supra)).
79. Similar approach is prevalent in American Jurisprudence on Contempt. In Corpus Juris Secundum volume 17, the following principles have been reiterated at pages 58-59 :
Generally, in the absence of Constitutional permission, the Legislature cannot destroy, abridge, or limit the inherent power of the Courts to punish for contempt, although it may regulate the exercise of such power and enlarge it beyond its inherent scope. Statutes purporting to confer power to punish acts which are within the purview of the Court's inherent power are held to be merely confirmatory of the common law.
Except where the constitution otherwise provides, the Legislature may not destroy, or abridge, or limit, as by definition, the inherent power of Courts to punish for contempt.
In State v. Shepard, reported in 76 SW 79, 88, 177 Mo 205 the following observations occur :
It is a contradiction in terms to say the power to punish is inherent, but that the Legislature may regulate the exercise....The power to regulate includes the power to say in what cases the right shall be exercised....The better opinion is that, where the Court is a creature of the Constitution, the inherent power to punish contempt cannot be shorn, abridged, limited or regulated.
81. Somewhat similar views were expressed Justice Elliott in Sanders v. State reported in 85 Ind 318. While dealing with inherent powers of the Court, the learned Judge observed :
That courts possess inherent powers not derived from any statute is undeniably true. Among these powers are the right to correct their records so as to make them speak the truth, to pass upon the constitutionality of statutes, to prevent the abuse of their authority or process, and to enforce obedience to their mandates. If it were granted that Courts possess only such rights and powers as are conferred by statute, they would be mere creatures of the Legislature, and not independent departments of the government. They are not mere creatures of the Legislature, but are co-ordinate branches of the Government, and in their sphere not subject to legislative control. Deutchman v. Town of Charlestown, 40 Ind 449; Cooley Const. Lim. 114, 116; 2 Story Const. 377.
82. In the Indian context in view of the declaration of law by the Supreme Court which has been pointed out above and which binds all Courts in India, this Court respectfully and humbly is of the view that interpretation of Section 20 of CCA in Om Prakash (2000 Cri LJ 1700) (SC) (supra) is perhaps not in consonance with the consistent declaration of law by the Supreme Court about the nature of Contempt jurisdiction of the High Court. In fact, the nature of contempt jurisdiction of the High Court in the context of Article 215 was unfortunately not at all brought to the notice of the Apex Court in Om Prakash (supra).
83. It may be noted that subsequently a Three Judge Bench of Supreme Court in T. Sudhakar Prasad (2000 AIR SCW 4611) (supra) accepted the consistent view of the Supreme Court as noted above and the Court had taken note of its judgment in the case of Supreme Court Bar Association : [1998]2SCR795 (supra). But in the previous Two Judge Bench judgment in Om Prakash (2000 Cri LJ 1700) (SC) (supra) this aspect of the matter was unfortunately not brought to the notice of the Apex Court. Therefore, the subsequent judgment of the larger Bench, in T. Sudhakar Prasad (supra) which is in accord with the consistent views of Supreme Court right from 1954 may be taken to be the binding precedent on this aspect.
84. In Om Prakash (supra) the observations to the effect that 'Section 20 strikes at the root of the Court to initiate any proceeding of the contempt' and the further interpretation that where proceeding has not been initiated within one year, the 'jurisdiction to initiate any proceeding for contempt is lost' have been made without consideration of the previous judgments of the Supreme Court in the context of High Court's contempt jurisdiction under Article 215 of the Constitution. Therefore, those observations in Om Prasad (supra) on interpretation of Section 20 of CCA '71, with great respect, do not have the binding nature of a precedent, especially in view of its subsequent larger Bench judgment in the case. T. Sudhakar Prasad (supra). The observations in Om Prasad (supra) may be confined to the facts of that case since interpretation on High Court's jurisdiction in contempt was made without reference to Article 215 of Constitution or the law laid down by the Supreme Court on this point.
85. It has been settled authoritatively by the Hon'ble Supreme Court more than once that when a finding is reached without argument and without consideration of the previous judgments of the Supreme Court such a finding does not have the binding nature of the precedent. Reference in this connection may be made of the Judgment of Supreme Court in the case of M/s. Goodyear India Ltd. v. State of Haryana, reported in AIR 1990 SC 782. In para 34 of the judgment the learned Judges held 'a decision on a question which has not been argued cannot be treated as a precedent', (para 34 page 796)
86. Again, in another Supreme Court judgment in the case of State of U. P. v. Synthetic Chemicals Limited reported in : 1993(41)ECC326 , in paragraphs 40 and 41 of the judgment, the Hon'ble Supreme Court considered this aspect and in doing so the learned Judges referred to decision of the Supreme Court in the case of Municipal Corporation of Delhi v. Gurnam Kaur, reported in : AIR1989SC38 . A Bench of three Judges, held in para 11 in Gurnam Kaur (supra) 'a decision should be treated as given per incuriam when it is given in ignorance of a term of a statute or of a rule having the force of a statute'. Saying so the learned Judges quoted from Salmond on Jurisprudence 12th Edition explaining the concept of Precedent Sub-silentio. This Court reproduces here the dictum laid down in Salmond (Salmond on Jurisprudence, 12th Edition page 153) :
A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the Court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the Court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub-silentio.
87. Reference in this connection may be made to the judgment of Justice Lahoti speaking for the Supreme Court in Arnit Das v. State of Bihar reported in : 2000CriLJ2971 . In para 20 of the judgment, the learned Judge adopted the law laid down in State of U. P. : 1993(41)ECC326 (supra). The observations made in para 20 are set out below :
A decision not expressed, not accompanied by reasons and not proceeding on a conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgment is not the ratio decidendi. This is the rule of sub silentio, in the technical sense when a particular point of law was not consciously determined.
88. It is clear in this case that the decision of Supreme Court in Om Prakash on the jurisdiction of High Court vis-a-vis Section 20 of the CCA was not rendered after considering the effect of Article 215 on the power of a High Court as a Court of Record in matters of contempt jurisdiction. In the subsequent judgment of the Apex Court of a larger Bench it has held that the provisions of CCA cannot limit or regulate the exercise of contempt jurisdiction of a High Court under Article 215. Therefore, the decision in Om Prakash (2000 Cri LJ 1700) (SC) (supra) must yield to the subsequent well considered and larger Bench decision in T. Sudhakar Prasad (2000 AIR SCW 4611) (supra).
89. In so far as the question of vires of Section 20 of CCA is concerned, the said question has not been properly argued before this Court. As such, this Court refrains from making any pronoucement of this question. This Court is of the view that Section 20 will serve as a guide in the exercise of jurisdiction by this Hon'ble Court in so far as High Court's contempt jurisdiction is concerned.
90. It is well-known that in matters of exercise of jurisdiction under Article 226 no time limit has been designedly prescribed having regard to the nature of its jurisdiction. But even then, law reports are replete with decisions where the Courts have refused to interfere in cases of belated claims which have been sought to be put forward on the basis of a petition under Article 226. Therefore, the Court while exercising its jurisdiction is conscious of the position that lit should not entertain belated claims which has the effect of unsetting settled position and, therefore, creating injustice rather than serve ends of justice.
91. So, in my considered view, in exercising the contempt jurisdiction of the High Court, the learned Judges, will follow the same principle of not entertaining causes which are belated and where it is clear that the persons invoking Court's jurisdiction are guilty of laches which has not been explained. But any interpretation which robs of the High Court of its inherent jurisdiction to act as a Courts of Record to punish a contempt of its own order after a certain time, even though the petition was presented I in time would have the effect of denuding the effectiveness of the remedy not only under Article 215 but also under Article 226.
92. It is well known that while conferring power on a High Court under Article 226 very wide language has been designedly used so that High Court is empowered to reach injustice whenever it is found. Of course, this exercise of jurisdiction is subject to well-known self-imposed limitations which have been developed over the years by High Courts and the Supreme Court. Therefore, to make the exercise of this wide jurisdiction conferred under Article 226 of the Constitution effective and meaningful, the contempt jurisdiction which is inherent in High Court and recognized as such under Article 215 of the Constitution should not be truncated and circumscribed by a narrow interpretation of Section 20 of the CCA. Section 20 of the CCA will certainly operate as a guide in the exercise of discretion of a High Court's contempt jurisdiction. But this section cannot or inhibit or prohibit the exercise of jurisdiction of a High Court.
93. This Court is giving this interpretation of Section 20 of CCA having regard to the over-riding consideration of public interest in maintaining rule of law and public confidence in the administration of justice by Courts. With the advent of Human Right Jurisprudence which is enshrined in our Constitution, matters relating to administration of justice call for a new judicial approach. The Constitution of India has assigned a dynamic role to constitutional courts and has entrusted them with the responsibilities to maintain rule of law in the country. Many areas which were previously thought to be beyond the ken of Court are now open for judicial scrutiny. This development of administrative law and judicial review allows Courts to strike the correct balance of forces in the constitutional scheme to promote fairness and justice in a Government under the rule of law. So in interpreting Section 20 of the CCA the Court must have due regard to this constitutional goal of maintaining the rule of law and the independence of the judiciary. Even though the principle of law may remain unchanged, but 'Law' in the words of Lord Coleridge grows and 'their application has to be changed with the changing circumstances of the time'.
94. Reference in this connection may be made to the observation of Lord Morris in the case of Attorney-General v. Times Newspaper reported in (1974) AC 273. At page 302 of the said report the learned Law Lord has summed up the importance of the law of contempt and I quote below those observations :
In an ordered community Courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the Courts should not be imperiled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity; it is because the very structure of ordered life is at risk if the recognised Courts of the land are so flouted and their authority wanes and is supplanted.
95. Today the members of public have a vital stake in effective and orderly administration of justice. Everyday new laws are made to govern their life; new rights are created and awareness of new right also dawns on them. In that context the courts have a vital duty of protecting the interest of the community in the due administration of justice. That is why the contempt jurisdiction has assumed such an importance. With the help of this power this Court is not merely to protect the dignity or majesty of the Court but it should also protect and vindicate the right of the public, so the course of justice is not 'perverted, prejudiced, obstructed or interefered with'. (See the observation of Justice Frankfuter in Offutt v. U. S. reported in (1954) 348 US 11).
96. Having regard to the aforesaid legal principles this Court is unable to accept the contention of the learned Counsel for the respondent that the contempt petition in this case even though filed by the petitioner within time, has become barred as more than one year has lapsed, not because of the fault of the petitioner, but because of procedural formalities of Court over which the petitioner has no control.
97. This Court is of the view that the power of the High Court under Article 215 of the Constitution of India has to be read consistently with the contempt rules framed by the High Court. This is also the judgment of the Supreme Court in the case of Dr. L. P. Mishra v. State of U. P. reported in : 1998CriLJ4603 as noted before.
98. In the instant case, this Court is bound to exercise its contempt jurisdiction in accordance with the Calcutta High Court Rules and considering the Calcutta High Court Rules, this Court finds that initiation of the proceeding is complete on the presentation of the contempt petition. This aspect has already been adverted to in the earlier part of this judgment. It is an admitted position that in the instant case the contempt petition was presented very much within the period of one year from the date of alleged contempt and as such the instant contempt petition is maintainable.
99. For the aforesaid view which this Court has taken on interpretation of Section 20 of CCA, this Court is of the opinion that Section 20 of CCA has not been correctly interpreted in the following cases and the ratio of the following decisions is not approved : (a) Hari Nandan Agarwal v. S. N. Padita, reported in : AIR1975All48 , (b) Gulab Singh v. The Principal, Sri Ramji Das, reported in : AIR1975All366 , (c) Dineshbhai A. Parikh v. Kripalu Co-operative Housing Society reported in : AIR1980Guj194 and (d) N. Venkataramanappa v. D. K. Naikar, reported in : AIR1978Kant57 . This Court, however, approves the decision of a learned Single Judge of this Court rendered in the case of Begunkodar High School v. Samarendra Bondopadhyay reported in (1996) 2 Cal LJ 349 and also approves the decisions of the Andhra Pradesh High Court in the case of Nallamala Venkateswara Rao v. P. Prabhakar reported in : 1998(1)ALD370 and the Full Bench judgment of Kerala High Court in the case of A. Mayilswami v. State of Kerala reported in 1995 Cri LJ 3830.
100. Now coming to the merits, this Court finds that in the order dated 4-3-1989 the petitioner was directed to be treated in service without any break and he was to be paid all consequential benefits in accordance with law within a particular period.
101. In the instant case, the termination of service of the petitioner was held to be invalid and has been quashed by the Division Bench of this High Court. Since it has been quashed it is of no effect and is a nullity. Reference in this connection may be made to the judgment of the Supreme Court in the case of Union of India v. Baburam Lalia reported in : (1988)IILLJ98SC . In that case the learned Judges held that since termination of service was held to be a nullity by the High Court, the employee was entitled to the entire salary on the footing that he had continued in service and the void order was not in existence in the eye of law. The same principles are applicable here. Therefore, the petitioner is entitled to be paid the full salary for the period he was kept out of employment because of the void order of termination of his service.
102. In a slightly different context similar principles were laid down in the case of Union of India v. K. V. Jankiram reported in : (1991)IILLJ570SC . In para 7 of that judgment a Three Judge Bench held that the principles of 'no work no pay' will not be applicable in a case where the employee though willing to work, is kept away from work by the authorities for no fault of his. The same principle should apply in the instant case. The order of termination of service has been found to be void and of no consequence and it is because of this order terminating the petitioner service that he was kept out of employment. It is nobody's case that the petitioner was not willing to work. In such a situation the principle of 'no work no pay' cannot be applied. The respondents have committed contempt by not giving the petitioner the salary for the entire period for which he was kept out of employment because of the impugned order. But since this is a case of civil contempt, this Court, can, without punishing the contemners, direct them to close the breach and thereby direct themselves to purge of the contempt committed by them.
103. This Court is taking this view as contempt in this case has not been committed by the contemners as a result of any deliberate defiance of the Court's order but because of an erroneous appreciation of the purport of the Court's order.
104. This Court, therefore, directs that the contemners must pay the petitioner the entire salary to which he is entitled to in normal circumstances for the period he was kept out of employment as a result of the impugned order. In doing so, the respondents are entitled to deduct the partial payment, if any has been made by them already. This Court expects that since the purport of the order has been clarified, the contemner would pay the petitioner his due as early as possible preferably within a period of two months from the date of service of the operative portion of this order on the contemners.
105. However by way of a general direction and for ends of justice this Court directs that, in future in all cases where the contempt applications are filed, the Registry must, on their own, immediately place those applications, if they are free from defects, before the appropriate Bench within a period of seven days from the date of such filing. This direction is given by this Court keeping in view the scope of Section 20 of CCA and also the Contempt of Court Rules framed by this High Court.
106. This Court records its deep appreciation of the valued assistance rendered by Mr. Samaraditya Pal, Senior Advocate, as an amicus curiae.
107. The contempt petition thus succeeds to the extent as indicated above.
108. There will be no order as to costs.
Dipak Prakas Kundu, J.
109. I agree.