K K R NAIR Vs. MOHAN DAS

JUDGEMENT

(1.) The petitioner filed on July 17, 1989, this Contempt Case against the respondent. The office has raised the objection thus : "It may be stated as how this contempt case is said to be filed in time.".

(2.) It is represented by the learned counsel that against the order of termination of the petitioner from service on October 17, 1981, Writ Petition No. 8692/81 was filed. By judgement dated January 19, 1985, the writ petition was allowed and the order of termination was quashed. Against that, Writ Appeal No. 361/85 was filed and by order dated November 20, 1987, the writ appeal was dismissed without much discussion, though after hearing both sides. The respondent carried the matter to Supreme Court in S.L.P. No. 12714 of 1988 and by order dated February 20, 1989, the leave petition was dismissed. After dismissal of the appeal by the Division Bench, the petitioner has submitted a representation on June 24, 1988, followed by further representations dated August 12, 1988 and October 5, 1988, for implementation of the order. It evoked no response. Despite submitting his joining report on November 3, 1988 the petitioner was not taken into service. A legal notice dated December 8, 1988 was also issued to the respondent. Thus he represented with the endorsement that the contempt proceedings are within limitation. The office posted for orders of the Court. Notice was issued to the counsel for the respondent Sri N.V. Suryanarayana Murthy, learned counsel raised a further objection that in view of the fact that the order passed by the learned single Judge is merged in the order of the Division Bench which was upheld by the Supreme Court in the S.L.P., this Court has no jurisdiction to entertain the contempt application. If the remedy is available, it would be in the Supreme Court. In support thereof, he relied on Gojer Brothers v. Ratan Lal, AIR 1974 SC 1380. 2-A. The first question, therefore, is whether this Court has jurisdiction to entertain the application for contempt under S.12 of the Contempt of Courts Act (Act 70 of 1971), for short, "the Act."

(3.) S.12(1) of the Act provides punishment for Contempt of Court with simple imprisonment for a term which may extend to six months or with fine which may extend to two thousand rupees, or with both. "Civil contempt" defined under S.2(B) means wilful disobedience to any judgement, decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court. It is seen that the order of termination of the services of the petitioner was quashed in W.P. No. 8692/81 by judgement dated January 19, 1985 for multiplicity of reasons and was confirmed in writ appeal. Special leave petition was summarily dismissed thus : "Special Leave is dismissed". The immediate question is whether the order passed by this Court is merged with the order of the Supreme Court and thereby this Court is devoid of jurisdiction to entertain the proceedings for contempt for disobedience of the order. In U.J.S. Chopra v. State of Bombay, AIR 1955 SC 633 per majority, it was held that a judgement pronounced by the High Court exercising appellate or revisional jurisdiction after issue of notice to the parties and full hearing, its judgement replaces the judgement of the lower Court thus constituting that the judgement of the High Court is the final judgement "to be executed in accordance with law, by the Court below". I.-T. Commr. of Amritlal Bhogilal and Co., AIR 1958 SC 868 held that if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law irrespective of whether it confirms, modifies or reverses the decision of the tribunal. In law, the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmation of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and the appellate decision alone is operative and capable of enforcement. In Shankar v. Krishnaji, AIR 1970 SC 1, in exercise of the revisional power under S.115, C.P.C., the appellate order of the tribunal under the Bombay Rents, Hotel and Lodging House Rates Control Act, was confirmed. It was again challenged under Arts.226 and 227. When in exercise of jurisdiction under Art.226 setting aside the order was questioned in appeal, the Supreme Court laid down the test that the right of appeal is one of entering a superior Court and invoking its aid and interposition to redress the error of the Court below. Two things which are required to constitute appellate jurisdiction are the existence of the relation of superior and inferior Court and the power on the part of the former to review decision of the latter. When the aid of the High Court is invoked on the revisional side, it is done because it is a superior Court and can interfere for the purpose of rectifying the error of the Court below, under S.115, C.P.C. basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense the revisional power. Therefore, the order of the appellate Tribunal merges with the revisional order and it cannot be questioned under Art.226. In Gojer Brothers Case (AIR 1974 SC 1380) (supra) the same question had arisen in relation to the appellate jurisdiction when an amendment to the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, was made and the decree of the appellate Court was suitably modified taking the aid of the amendment. The question was, which is the decree that is executable. In that context, Chandrachud, J. (as he then was) held that where the decree of the trial Court is carried in appeal and the appellate Court disposes of the appeal after a contested hearing, the decree to be executed is the decree of the appellate Court and not of the trial Court. In Jowad Hussain Saiyid v. Gendan Chariar, AIR 1926 PC 93, the Privy Council while holding that the limitation of three years within which an application for final decree must be made runs from the date of the appellate Court, quoted with approval the statement of law in the decision under appeal and held that when an appeal has been preferred it is the degree of the appellate Court which is the final decree in the case. When the appellate Court passed the decree it is that decree only that can be made final in the cause between the parties.