IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Jurisdiction Case No.2765 of 2009 Sunil Prakash Tiwary, son of Sri Jagdish Narain Tiwary, resident of village Pakri Ashok, P.S.Pipra, District East Champaran--------------------------------------------------petitioner Versus 1.The State of Bihar 2.Ramanand Prasad Singh, resident of 31 Harding Road, P.S.Gardanibagh, in the town and district of Patna, at present Minister, Transport, Government of Bihar, Patna 3.Sri Anup Mukherjee, Chief Secretary, Government of Bihar, Patna 4.Sri Sunil Varthwal, Secretary, Transport Department, Government of Bihar, Vishweshraiya Bhawan, Patna 5.Sri Uday Singh Kumawat, Transport Commissioner, Bihar, Vishweshraiya Bhawan, Patna------------------------opp. parties ---------------------------------- For the petitioner :M/S Abhay Kumar Singh, Sr.Advocate Kamal Kishore Mishra, Rakesh Kumar Samrendra, Advoctes For the opp.parties : AAG III Mr.Nawal Kishore Singh, S.C.VI Mr.Yogendra Kr.Singh, AC to S.C.VI ------- 7 22.12.2011 This application has been filed under Article 215 of the Constitution of India read with Section 10 of the Contempt of Courts Act, 1971 with a prayer to initiate proceedings of contempt against the opposite party Nos. 4 & 5 for not implementing the order dated 31.12.2007 by the Appellate Authority being the Minister, Transport Department, Government of Bihar passed under Section 24(1)(b) of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005. An objection has been raised regarding the 2 maintainability of the contempt petition with respect to such an order. The short facts leading up to the filing of the present application are that the Transport Commissioner who was at the relevant time the Secretary, Transport Department also and holding the charge of the Office of the Transport Commissioner by his order dated 7.7.2006 dismissed the petitioner from the post of Motor Vehicle Inspector. Against the said order of dismissal the petitioner filed an appeal under Rule 24(1)(b) of the Bihar Government Servants(Classification, Control and Appeal) Rules, 2005 (in short „the Rules‟) before the Minister of State Transport (Independent Charge). After hearing the petitioner as also the Transport Commissioner, the Appellate Authority, set aside the order of dismissal dated 7.7.2006 by his order dated 31.12.2007. Thereafter the petitioner met the Transport Commissioner and subsequently the Secretary, Transport Department also requesting them to implement the order dated 31.12.2007. The petitioner then moved the Appellate Authority to refer the matter to this Court for initiation of contempt proceedings against the opposite party Nos. 4 & 5, the 3 Secretary and the Transport Commissioner for not implementing the order passed by the Appellate Authority. The Transport Minister issued repeated notices to the opposite party Nos. 4 & 5 to appear before him and explain the reasons for not implementing the order but they did not do so. However, since the Appellate Authority did not refer the matter to this Court for initiation of contempt proceedings the petitioner has filed the present application with the prayer aforesaid. Learned counsel for the petitioner submits that the 2005 Rules have been framed under Article 309 of the Constitution of India and thus have a statutory character and the Appellate Authority is a statutory authority under the said Rules and thus it is a Tribunal/Quasi Judicial Authority and therefore a subordinate court to the High Court and under the jurisdiction of this Court that exercises supevisory jurisdiction under Article 227 of the Constitution over all the courts and Tribunals within the State. It is urged by learned counsel that the High Court is bound to uphold the majesty of all Tribunals under it under Article 227 of the Constitution and in case of non- implementation of their orders proceed to initiate contempt 4 proceedings against those guilty of such wilful disobedience. It is further submitted by learned counsel that the Appellate Authority by its order dated 31.12.2007 has passed a judgment which has got finality and definitiveness, which are the essential tests of a judicial pronouncement. Learned counsel admits that under Rules 23 to 27 of the Rules although no power to compel production of witnesses and documents is to be found but such power must be presumed as an inferred consequence of statute. Learned Additional Advocate General appearing for the State, on the other hand, submits that the disciplinary authority or the appellate authority is a purely administrative body. It is urged by him that a public servant holds office at the pleasure of the President or the Governor subject to Article 311(2) of the Constitution of India and the said action pertains to the disciplinary power of the State as an employer against its employee and thus award of punishment is administrative in nature; therefore, all authorities involved in the process whether the enquiry officer, the disciplinary authority or the appellate authority 5 are merely administrative authorities and they cannot be held to be a court much less a court subordinate to the High Court which is the requirement of Section 10 of the Contempt of Courts Act before the High Court can initiate contempt proceedings on a contempt committed against such subordinate courts. It is further contended by learned counsel for the State that even if it is presumed for the sake of argument that the appellate authority is a quasi judicial Tribunal, it still does not come within the definition of court under the Contempt of Courts Act and thus relief sought by the petitioner cannot be granted to him. It is also urged by learned counsel that alternative remedy is available to the petitioner in the matter and in such circumstances the power of contempt should not be exercised. It is further submitted that contempt proceedings should not be allowed to be used as a substitute for execution proceedings and it was open to the petitioner to have represented before the Chief Secretary who is competent to take action against the Transport Commissioner or the Transport Secretary for not taking 6 steps in implementing the order. Lastly it is urged that even if no alternative remedy is provided under the Rules in the matter of implementation of the order of the Appellate Authority the petitioner could have moved under Article 226 of the Constitution but a contempt proceeding in the facts and circumstances of the case with respect to non- implementation of the order of the appellate authority is not maintainable as the petitioner is not remediless. In reply, learned counsel for the petitioner admits that when the petitioner moves the High Court for initiating contempt proceedings with respect to an order of a court subordinate to the High Court the discretion is conferred upon the High Court in such matter. It is submitted by learned counsel that in case it is so held that no case for initiating contempt proceedings is made out then he should be permitted to convert the present petition into an application under Article 227 of the Constitution. A large number of decisions of the Supreme Court as also of this Court and various other High Courts have been cited at the Bar in support of the respective contentions of learned counsels for the parties. However, it 7 may not be necessary to refer to each and every one of them. I may, however, refer to some of the decisions which may throw light on the issue under consideration as to the maintainability of the contempt petition in a matter of the present nature. The first such decision which deals at length with the provisions in question, although the case was under the Contempt of Courts Act, 1952, is a three Judges Bench decision of the Supreme Court in the case of Brajnandan Sinha vs. Jyoti Narain : AIR 1956 SC 66, in which the Apex Court dealt at length with the definition of the court, judicial power, judicial decision of the Tribunals; paragraphs 8 to 18 and 23 of the said judgment clarify much of the issues that have been raised in the present matter and they are accordingly quoted below : “8. The word “Court” was not defined in the Act and the expression “Courts subordinate to the High Courts” would „prima facie‟ mean the Courts of law subordinate to the High Courts in the hierarchy of Courts established for the purpose of administration of justice throughout the Union. 9. It would be relevant, however, to notice the definitions of “Court” available elsewhere. 10. Coke on Littleton and Shroud defined the word “Court” as the place where justice is judicially administered. 11. According to Stephen, “In every Court, there must be at least 8 three constituent parts- the actor, rues and judges; the actor or plaintiff, who complains of an injury done; the rues, or defendant, who is called upon to make satisfaction for it; and the judge, or judicial power, which is to examine the truth of the fact, and to determine the law arising upon that fact, and if any injury appears to have been done, to ascertain, and by its officers to apply, the remedy.” 12. Section 3, Evidence Act (1 of 1872) defines „Court” as including all Judges, and Magistrates, and all persons, except arbitrators, legally authorized to take evidence. This definition, however, has been held to be not exhaustive but framed only for the purpose of Evidence Act and is not to be extended where such an extension is not warranted. 13. Sections 19 and 20, Penal Code (Act 45 of 1860) define the words “Court” and the “Court of Justice” as under : “Section 19. The word „Judge‟ denotes not only every person who is officially designated as a judge, but also every person- who is empowered by law to give in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against would be definitive, or a judgment which, if confirmed by some other authority would be definitive, or Who is one of a body of persons, which body of person is empowered by law to give such a judgment. Section 20. The words “Court of Justice” denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially.” 14. The pronouncement of a definitive judgment is thus considered the essential „sine qua non‟ of a Court and unless and until a binding and authoritative judgment can be pronounced by a 9 person or body of persons it cannot be predicated that he or they constitute a Court. 15. The Privy Council in the case of – “Shell Co. of Australia vs. Federal Commissioner of Taxation”, 1931 AC 275 (A) thus defined “Judicial Power” at p. 295: “Is this right ? What is “Judicial power” ? Their Lordships are of opinion that one of the best definitions is that given by Griffith C.J. in – „Huddart, Parker & Co. v. Moorehead”, (1909) 8 CLR 330 at p. 357 (B) where he says : “I am of opinion that the words „judicial power‟ as used in S.71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action”. Their Lordships further enumerated at p.297 certain negative propositions in relation to this subject: “1. A tribunal is not necessarily a Court in this strict sense because it gives a final decision; 2. Nor because it hears witnesses on oath; 3. Nor because two or more contending parties appear before it between whom it has to decide; 4. Nor because it gives decisions which affect the rights of subjects; 5. Nor because there is an appeal to a Court; 6. Nor because it is a body to which a matter is referred by another body. See „Rex v. Electricity Commissioner‟, 1924-1KB 171(C)” and observed at page 298: “An administrative tribunal may act judicially, but still remain an administrative 10 tribunal as distinguished from a Court, strictly so-called. Mere externals do not make a direction to an administrative officer by an ad hoc tribunal an exercise by a Court of judicial power”. 16. The same principle was reiterated by this Court in – „Bharat Bank Ltd. v. Employees of Bharat Bank Ltd.‟, AIR 1950 SC 188 (D); and – „Meqbool Hussain v. State of Bombay‟, AIR 1953 SC 325 (E), where the test of a judicial tribunal as laid down in a passage from – „Cooper v. Willson‟, 1937- 2 KB 309 (F) at p. 340, was adopted by this Court: “A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites: - (1) The presentation (nor necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal arguments by the parties; and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law”. 17. „Maqbool Hussain‟s case (E)‟, above referred to, was followed by this Court in – „S.A. Venkataraman v. Union of India‟, AIR 1954 SC 375 (G), where a Constitution Bench of this Court also laid down that both finality and authoritativeness were the essential tests of a judicial pronouncement. 18. It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a 11 definitive judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement. 23. The position is thus summarized in the following passage in Halsbury‟s Laws of England, Hailsham Edition, volume 8, page 525: “Many bodies are not courts, although they have to decide questions and in so doing have to act judicially, in the sense that the proceedings must be conducted with fairness and impartiality, such as assessment committees, guardians committees, the Court of referees constituted under the Unemployment Insurance Acts to decide claims made on the insurance funds, the benchers of the Inns of Court when considering the conduct of one of their members, the General Medical Council, when considering questions affecting the position of a medical man.”” The decision of the Constitution Bench of the Supreme Court in the case of Associated Cement Companies Ltd., v. P.N.Sharma and another :AIR 1965 SC 1595 may also be usefully referred to although the said case related to maintainability of an application by way of Special Leave before the Supreme Court under Article 136(1) of the Constitution on the ground as to whether State Government is a tribunal within the meaning of the said Article when it was exercising appellate powers under the concerned Statutory Rules. As the said case has been rigorously pressed by learned counsel for the petitioner and the case is the only one cited regarding exercise of 12 appellate power by the State Government under certain Statutory Rules under consideration, although not with reference to the Contempt of Courts Act, the majority view, which is to be found in paragraphs 33 & 34, is quoted below: “33. The question which we have to decide in the present appeal is whether the State Government is a tribunal when it exercises its authority under R. 6(5) or R. 6(6). No rules have been made prescribing the procedure which the State Government should follow in dealing with appeals under these two sub-rules, and there is no statutory provision conferring on the State Government any specific powers which are usually associated with the trial in Courts and which are intended to help the Court in reaching its decisions. The requirements of procedure which are followed in Courts and the possession of subsidiary powers which are given to Courts to try the cases before them, are described as trappings of the Courts, and so, it may be conceded that these trappings are not shown to exist in the case of the State Government which hears appeals under R. 6(5) and R.6 (6). But as we have already stated, the consideration about the presence of all or some of the trappings of a Court is really not decisive. The presence of some of the trappings may assist the determination of the question as to whether the power exercised by the authority which possesses the said trappings, is the judicial power of the State or not. The main and the basic test, however, is whether the adjudicating power which a particular authority is empowered to exercise, has been conferred on it by a statute and can be described as a part of the State‟s inherent power exercised in discharging its judicial function. Applying this test, there can be no doubt that the power which the State Government exercises under R. 6(5) and R. 6(6) 13 is a part of the State‟s judicial power. It has been conferred on the State Government by a statutory Rule and it can be exercised in respect of disputes between the management and its Welfare Officers. There is, in that sense, a lis; there is affirmation by one party and denial by another, and the dispute necessarily involves the rights and obligations of the parties to it. The order which the State Government ultimately passes is described as its decision and it is made final and binding. Besides, it is an order passed on appeal. Having regard to these distinctive features of the power conferred on the State Government by R.6 (5) and R. 6(6), we feel no hesitation in holding that it is a Tribunal within the meaning of Art. 136(1). 34. In this connection, we may usefully recall the observation made by Lord Haldane in Local Government Board v. Arlidge, 1915 AC 120 at p. 120. Said Lord Haldane “My Lords, when the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially. They must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice. But it does not follow that the procedure of every such tribunal must be the same”. Having regard to the nature of the power conferred on the State Government, it seems to us clear that for reaching a fair and objective decision in the dispute brought before it in its appellate jurisdiction, the State Government has the power to devise its own procedure and to exercise such other incidental and subsidiary powers as may be necessary to deal effectively with the dispute. We are, therefore, satisfied that the State Government which exercises its appellate jurisdiction under R. 6(5) and R. 6(6) of the Rules is a Tribunal within the meaning of Art. 136(1), and so, the present appeal brought before this Court against the impugned appellate 14 order passed by respondent No.2 is competent. In the result, the preliminary objection raised by Mr. Goyal fails and must be rejected.” The next is the decision of the Apex Court in the case of S.K.Sarkar, Member, Board of Revenue, U.P., Lucknow vs. Vinay Chandra Misra : (1981) 1 SCC 436, in paragraph 16 of which it was held as followed : “16. Section 2(c) of the Act defines “criminal contempt”. Section 9 emphasises that “nothing contained in this Act shall be construed as implying that any disobedience, breach, publication or other act is punishable as contempt of court which would not so punishable apart from this Act”. Section 10 runs as under : Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself : Then, there is a proviso which is not material for our purpose. The provision in Section 10 is but a replica of Section 3 of the 1952 Act. The phrase “courts subordinate to it” used in Section 10 is wide enough to include all courts which are judicially subordinate to the High Court, even though administrative control over them under Article 235 of the Constitution does not vest in the High Court. Under Article 227 of the Constitution the High Court has the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. The Court of Revenue Board, therefore, in the instant case, is a court “subordinate to the High Court” within the contemplation of Section 10 of the Act.” Then there is the decision of the Supreme Court 15 in the case of K.Shamrao and others vs. Assistant Charity Commissioner : (2003) 3 SCC 563, in paragraph 17 of which the law has been laid down in the following terms : “17. The aforesaid provisions make it clear that the Assistant Charity Commissioner has not only the trapping of a judicial tribunal but also has power to give a decision or a definitive judgment which has finality and authoritativeness which are essential tests of a judicial pronouncement. The Assistant Charity Commissioner, therefore, possesses all the attributes of a court. The fact that the Assistant Charity Commissioner has also to perform some administrative functions is not of any relevance for coming to the conclusion that he is not a court, having regard to the provisions of the Act which substantially confer on him the power to give a definite judgment subject to finality in appeal, after hearing all concerned. Functions of the Assistant Charity Commissioner are predominantly adjudicatory. The Assistant Charity Commissioner has almost all the powers which an ordinary civil court has including power of summoning witnesses, compelling production of documents, examining witnesses on oath and coming to a definite conclusion on the evidence induced and arguments submitted.” On a consideration of the law laid down in the aforesaid decisions and reiterated in a large number of cases it is evident that the High Court has powers of suo motu initiating contempt proceedings with respect to a contempt committed against a court subordinate to the High Court as laid down by Section 10 of the Contempt of Courts Act, 1971, which is in the following terms : 16 S.10. Power of High Court to punish contempts of subordinate courts.- Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself: Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code, 1860 (45 of 1860)” The only bar is contained in the proviso that no cognizance of a contempt committed in respect of a court subordinate to the High Court shall be taken where such contempt is an offence punishable under the Indian Penal Code. The said proviso also leads to the conclusion that contempt jurisdiction is to be sparingly exercised and only in the absence of any recourse available to the subordinate court or Tribunal. Thus where the very act which is a contempt is also