LAWS(CAL)-1997-5-9

MADHAB BANERJEE Vs. DIPAK CHANDA

Decided On May 21, 1997
MADHAB BANERJEE Appellant
V/S
DIPAK CHANDA Respondents

JUDGEMENT

(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. 1 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 suspension 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 patent 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., AIR 1963 SC 1124. 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 :

(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, AIR 1963 SC 946 : (1962 All LJ 819). 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 enactad 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 revisional 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 does 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 us 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 noncompliance of the order of the High Court by application of the doctrine of merger.