# S.M.A. Abdi and another / v. Private Secretaries Brotherhood and another

- **Citation:** (2009) 2 ILRA 541
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-07-29
- **Case number:** Contempt Appeal No. 2 of 2009
- **Bench:** S.K. Singh, Ashok Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/s-m-a-abdi-and-another-v-private-secretaries-brotherhood-and-another-41654
- **Pages:** 7

## Headnote

Sri M.D. Singh Shekhar
Sri Tiwari

Contempt
of
Court
Act-Section
19Appeal-against
interlocutory
order
passed
by
Single
Judge-held-not
maintainable-remedy to file intra-Court
Appeal.

Held: Para 19

Thus it is clear that while dealing with
the second question the Apex Court
clearly said that in respect to the
decision even so rendered on merits by
interlocutory order a person is not
remedy less and an intra-court appeal if
is provided is maintainable.
Case law discussed:
(1998) 3 U.P.L.B.E.C. 2333; (2005) 7 SCC 40,
(2004) 13 SCC 610, (2006) 5 SCC 399, 2007
(1) ALJ 389, (1988) 3 SCC 26, (1978) 2 SCC
370, 2008 (26) LCD 1034, 2008 (1) AWC 61

## Text

2 All] S.M.A. Abdi and another V. P.S. Brotherhood and another
541
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.07.2009

BEFORE
THE HON'BLE S.K. SINGH, J.
THE HON'BLE ASHOK SRIVASTAVA, J.

Contempt Appeal No. 2 of 2009

S.M.A. Abdi and another ...Respondents/
Appellants

Versus
Private
Secretaries
Brotherhood
and
another
 ...Petitioner/Respondents

Counsel for the Appellants:
Sri Zafar Nayyer, Addl. Adv. General
Sri M.C. Tripathi, Addl. C.S.C.

Counsel for the Respondents:
Sri M.D. Singh Shekhar
Sri Tiwari

Contempt
of
Court
Act-Section
19Appeal-against
interlocutory
order
passed
by
Single
Judge-held-not
maintainable-remedy to file intra-Court
Appeal.

Held: Para 19

Thus it is clear that while dealing with
the second question the Apex Court
clearly said that in respect to the
decision even so rendered on merits by
interlocutory order a person is not
remedy less and an intra-court appeal if
is provided is maintainable.
Case law discussed:
(1998) 3 U.P.L.B.E.C. 2333; (2005) 7 SCC 40,
(2004) 13 SCC 610, (2006) 5 SCC 399, 2007
(1) ALJ 389, (1988) 3 SCC 26, (1978) 2 SCC
370, 2008 (26) LCD 1034, 2008 (1) AWC 61

(Delivered by Hon'ble S. K. Singh, J.)

1. Heard Sri Zafar Nayyer, learned
Additional Advocate General assisted by
Sri M. C. Tripathi, learned Additional
Chief Standing Counsel who appeared in
support of this appeal and Sri M. D. Singh
Shekhar,
learned
Senior
Advocate
assisted by Sri Tiwari who appears for the
respondents.

2. This contempt appeal is directed
against the order passed by the learned
Single Judge dated 16.7.2009 exercising
the powers under the Contempt of Courts
Act by which liberty has been given to the
respondents to comply with the orders
passed by this Court on 29.7.1998 in writ
petition no. 17585 of 1996 within ten days
and to file a fresh compliance report
before the Court on the date fixed. It is
further provided that in case the order is
complied with nobody need to appear
failing which the appellants are to appear
in person before the court on the date
fixed i.e. 30.7.2009.

The order assailed in this appeal, for
convenience, is quoted here :

"Heard Sri M. D. Singh Shekher
learned Senior Counsel assisted by Sri
R.D. Tiwari for the petitioner/applicant
and
Sri
Jyotindra
Mishra,
learned
Advocate General assisted by Sri Zaffar
Nayyer, learned Additional Advocate
General and Sri M. C. Chaturvedi learned
Chief Standing Counsel along with M. C.
Tripathi
Additional
Chief
Standing
Counsel for the respondents.
After hearing at length, I am of the
considered opinion that there can be no
justification to detract the view taken
earlier by this Court mentioned in the
order dated 6.5.2009. I am in full
agreement
of
the
aforesaid
view,
accordingly the same is hereby reiterated.
Respondents are permitted to comply
with the order passed by this Court on
29.7.1998 in writ petition no. 17585 of
542 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
1996 within ten days from today and file a
fresh compliance report before the court
on the date fixed. In case the order is
complied with by that time, the Principal
Secretary (Finance) and the Principal
Secretary (Law) will not appear in person
before this Court on the date fixed.
However, in case of non-compliance of
the order they are directed to appear in
person before this Court on the date fixed.
List/Put up on 30th July, 2009.
A copy of this order shall be
provided to Sri M. C. Chaturvedi learned
Chief Standing Counsel and Sri Zaffer
Nayyer Additional Advocate General free
of cost within 24 hours.
Sd/- Hon. Sabhajeet Yadav, J."

3. Initially when the appeal was
placed, Sri Singh raised a preliminary
objection about maintainability of the
appeal. This Court directed the learned
Stamp Reporter to examine and report,
upon which the report came in which it is
mentioned
that
the
appeal
is
not
maintainable in view of Section 19 of the
Contempt of Courts Act.

4. Thus this Court is to hear the
contention of either of the sides on the
question of maintainability of the appeal.

5. Sri Nayyer, learned Additional
Advocate General, to object the report of
the
learned
Stamp
Reporter
about
maintainability of the appeal and also to
the submission of the Sri Singh submits
that the order of learned Single Judge
challenged in this appeal is not an order
only for framing of charge simplicitor
rather it is an order by which a mandate to
do something has been given and thus
even
the
order
is
at
an
interlocutory/intermediary stage but as it
directs to do something in a particular
way, the appeal as filed is maintainable
under Section 19 of the Contempt of
Courts Act.

6. It is further submitted that the
direction given by the learned Single
Judge on the facts is without jurisdiction
and, therefore, the appellant cannot be left
to be remediless and as the only remedy
as on date available to the appellant is to
file
the
appeal,
this
appeal
is
maintainable. Lastly it is submitted that
all the directions given by this Court in
the writ petition has been complied with
and, therefore, the learned Single Judge
has committed an error in passing the
order by reiterating the order passed in the
writ petition dated 6.5.2009 and in giving
the impugned direction.

7. In support of the submissions
about maintainability of the appeal,
learned Advocate placed reliance on the
decision given by the Apex Court in the
case of A. P. Verma Vs. U. P.
Laboratory Technicians Association
and
others
reported
in
(1998)
3
U.P.L.B.E.C. 2333; in the case of Modi
Telefibres Ltd. and others Vs. Sujit
Kumar Choudhary and others reported
in (2005) 7 SCC 40, decision given in the
case of V. M. Manohar Prasad Vs. N.
Ratnam Raju and another reported in
(2004) 13 SCC 610 and at the same time
a recent decision given by the Apex Court
in the case of Midnapore Peoples' Coop.
Bank Ltd. and others Vs. Chunilal
Nanda and others reported in (2006) 5
SCC 399.

8. In response to the aforesaid Sri
Singh submits that Section 19 of the
Contempt of Courts Act clearly refers for
an appeal against the order of punishment
by the learned Single Judge exercising the
2 All] S.M.A. Abdi and another V. P.S. Brotherhood and another
543
powers under Contempt of Courts Act and
thus every order passed in the exercise of
that jurisdiction cannot be equated to the
word "punishment" so mentioned in
Section 19 of the Act and, therefore, the
appeal as filed by the appellant is not
maintainable.

9. Sri Singh further submits that the
submission of appellants side that the
order of the learned Contempt Judge is
without
jurisdiction
is
totally
misconceived for the simple reason that
learned Single Judge has not passed any
independent order, of its own rather he
has just reiterated the earlier orders passed
by the court in the writ exercise and,
therefore, if it is a case of incorrect
interpretation according to the two sides
then also it cannot be said to be an
independent exercise by the Contempt
Judge which is said to be without
jurisdiction so as to accept the submission
of the appellant side about maintainability
of the appeal.

10. Lastly it is submitted that as by
the order of learned Single Judge only
compliance has been directed to be
ensured in respect to the order passed in
the writ and if the contention of the
appellant side is accepted to be correct
that order has been complied in its true
sense then it is always open for them to
put in appearance before the Court and to
satisfy about the merits. The scope of an
argument
of
the
appellants
about
compliance or non compliance of the
orders which were passed by the writ
court cannot be examined in the contempt
appeal at this stage.

11. In support of the submission that
against this kind of order, the appeal has
been
rightly
reported
to
be
not
maintainable, Sri Singh placed reliance on
the case of Smt. Kamal Kumari Singh
Vs. State of U. P. and others reported
in 2007 (1) ALJ 389 and also the decision
given in the case of Midnapore Peoples'
Coop. Bank Ltd. and others (Supra), on
which reliance has been placed by the
appellant side also.

12. In view of the aforesaid, this
Court has to deal with the merit in the
submission about maintainability of the
appeal, as noted above in the light of
decisions so referred and some other
judgments of the Apex Court on the point.

13. To deal with the submissions
about maintainability of the appeal this
Court will have to refer the provisions of
Section 19 of the Contempt of Court Act
and thus for convenience Section can be
quoted here :

"19. (1) An appeal shall lie as of
right from any order or decision of the
High Court in the exercise of its
jurisdiction to punish for contempt -
(a) where the order or decision is that of
a Single Judge, to a Bench of not less than
two Judges of the Court;
(b) where the order or decision is that of
a Bench, to the Supreme Court:"

14. On a plain reading Section 19
provides that an appeal shall lie as of right
from any order or decision of the High
Court in exercise of its jurisdiction to
punish for contempt. In other words, if the
High Court passes an order in exercise of
its jurisdiction to punish any person for
contempt of court, then only an appeal
shall be maintainable under sub-section
(1) of Section 19 of the Act. As subsection (1) of Section 19 provides that an
appeal shall lie as of right from any order,
544 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
an impression is created that an appeal
has been provided under the said subsection against any order passed by the
High
Court
while
exercising
the
jurisdiction of contempt proceedings. The
words 'any order' have to be read with the
expression 'decision' used in the said subsection which the High Court passes in
exercise of its jurisdiction to punish for
contempt. 'Any order' is not independent
of the expression 'decision'. They have
been put in an alternative form saying
'order' or 'decision'. In either case, it
must be in the nature of punishment for
contempt. If the expression 'any order' is
read independently of the 'decision' then
an appeal shall lie under sub-section (1)
of
Section
19
even
against
any
interlocutory order passed in a proceeding
for contempt by the High Court which
shall lead to a ridiculous result.

15. In a judgment given by the Apex
Court in the case of D.N. Taneja Vs.
Bhajan Lal reported in (1988) 3 SCC
26 observation as made by the Apex
Court is to be quoted here :

"The right of appeal will be
available under sub-section (1) of Section
19 only against any decision or order of a
High Court passed in the exercise of its
jurisdiction to punish for contempt. When
the High Court does not impose any
punishment on the alleged contemnor, the
High
Court
does
not
exercise
its
jurisdiction or power to punish for
contempt. The jurisdiction of the High
Court is to punish. When no punishment is
imposed by the High Court, it is difficult
to say that the High Court has exercised
its jurisdiction or power as conferred on
it by Article 215 of the Constitution."

16. We may refer to the observation
made by the Apex Court in another
decision on the point in the case of
Purshotam Dass Goel Vs. Justice B. S.
Dhillon reported in (1978) 2 SCC 370 :

"The
(contempt)
proceeding
is
initiated under Section 17 by issuance of
a notice. Thereafter, there may be many
interlocutory orders passed in the said
proceeding by the High Court. It could
not be the intention of the legislature to
provide for an appeal to this Court as a
matter of right from each and every such
order made by the High Court. The order
or the decision must be such that it
decides some bone of contention raised
before the High Court affecting the right
of the party aggrieved. Mere initiation of
a proceeding for contempt by the issuance
of the notice on the prima facie view that
the case is a fit one for drawing up the
proceeding,
does
not
decision
any
question. .....It is neither possible, nor
advisable, to make an exhaustive list of
the type of orders which may be
appealable to this Court under Section
19. A final order, surely will be
appealable."

17. On a consideration of the views
expressed in series of decisions referred
above, the Apex Court in the recent
decision of Midnapore Peoples' Coop.
Bank Ltd. and others (Supra) posed
various questions for consideration and
they were accordingly answered. The
Apex Court after quoting provision of
Section 19 of Contempt of Courts Act
framed questions for consideration as are
contained in para 9 of the judgment which
are being quoted here:

"(i) Where the High Court, in a contempt
proceeding, renders a decision on the
2 All] S.M.A. Abdi and another V. P.S. Brotherhood and another
545
merits of a dispute between the parties,
either by an interlocutory order or final
judgment, whether it is appealable under
Section 19 of the Contempt of Courts Act,
1971 ? If not, what is the remedy of the
person aggrieved ?
(ii) Where such a decision on merits is
rendered by an interlocutory order of a
learned Single Judge, whether an intracourt appeal is available under clause 15
of the Letters Patent ?
(iii) In a contempt proceeding initiated by
a delinquent employee (against the
enquiry officer as also the Chairman and
Secretary in charge of the employer
Bank), complaining of disobedience of an
order directing completion of the enquiry
in a time-bound schedule, whether the
court can direct (a) that the employer
shall reinstate the employee forthwith; (b)
that the employee shall not be prevented
from discharging his duties in any
manner; (c) that the employee shall be
paid all arrears of salary; (d) that the
enquiry officer shall cease to be the
enquiry officer and the employer shall
appoint a fresh enquiry officer ; and (e)
that the suspension shall be deemed to
have been revoked?"

18. The first question so posed bas
been decided in para 11 of the aforesaid
judgment. The answer by the Apex Court
in this respect can itself be quoted for
convenience :

"I. An appeal under Section 19 is
maintainable only against an order or
decision of the High Court passed in
exercise of its jurisdiction to punish for
contempt, that is, an order imposing
punishment for contempt.
II. Neither an order declining to initiate
proceedings for contempt, nor an order
initiating proceedings for contempt nor
an order dropping the proceedings for
contempt nor an order acquitting or
exonerating the contemnor, is appealable
under Section 19 of the CC Act. In special
circumstances, they may be open to
challenge under Article 136 of the
Constitution.
III. In a proceeding for contempt, the
High Court can decide whether any
contempt of court has been committed,
and if so, what should be the punishment
and matters incidental thereto. In such a
proceeding, it is not appropriate to
adjudicate or decide any issue relating to
the merits of the dispute between the
parties.
IV. Any direction issued or decision
made by the High Court on the merits of a
dispute between the parties, will not be in
the exercise of "jurisdiction to punish for
contempt" and, therefore, not appealable
under Section 19 of the CC Act. The only
exception is where such direction or
decision is incidental to or inextricably
connected with the order punishing for
contempt, in which event the appeal under
Section 19 of the Act, can also encompass
the incidental or inextricably connected
directions.
V. If the High Court, for whatsoever
reason, decides an issue or makes any
direction, relating to the merits of the
dispute between the parties, in a
contempt proceedings, the aggrieved
person is not without remedy. Such an
order is open to challenge in an intracourt appeal (if the order was of a
learned Single Judge and there is a
provision for an intra-court appeal), or
by seeking special leave to appeal under
Article 136 of the Constitution of India
(in other cases).
The
first
point
is
answered
accordingly."
546 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
19. Thus it is clear that while
dealing with the second question the Apex
Court clearly said that in respect to the
decision even so rendered on merits by
interlocutory order a person is not remedy
less and an intra-court appeal if is
provided is maintainable.

20. Recent judgment of the Apex
Court as noted above in the case of
Midnapore Peoples' Coop. Bank Ltd.
and others (Supra) was referred in the
recent cases by our own court and
contempt appeals were dismissed on the
ground of being not maintainable. We
may refer to the decision given in the case
of Prakash Vs. Arun Chand Pandey
reported in 2008 (26) LCD 1034 and
decision in the case of Jai Karan Lal
Verma Vs. Rajesh Kumar Pathak and
others reported in 2008 (1) AWC 61.

21. It is thereafter in another recent
judgment
of
this
Court
given
in
Contempt Appeal No. 7 of 2009 Smt.
Sudha Shukla Vs. Ausan and others
and Contempt Appeal No. 8 of 2009
Krishna Shukla Vs. Ausan and others
decided on 26.5.2009 series of judgments
of the Apex Court has been referred and
on a consideration of all the aspects the
question of maintainability has been
decided. It has been held that unless any
adverse order having immediate effect
causing injury is passed, that cannot be
appealed either by filing Contempt
Appeal or even by filing Special Appeal if
it is not so provided.

22. Observation in this respect is
also contained in the decision of this
Court in the case of Smt. Kamal Kumari
Singh (Supra). Observations as made in
this judgment in para 19 is to be quoted
here :
"Sri Ravi Kant, learned senior
counsel, further contended that part of the
order, which restrain the appellant from
working as officiating principal of the
institution observing that the Court is
satisfied that the appellant is not fit
person, is appealable under Chapter VIII.
Rule 5 of the Rules of the Court. In our
view, even this submission cannot be
accepted for the reason that an appeal
under Chapter VIII, Rule 5 of the Rules of
the Court lies against the "judgment".
The Hon'ble Single Judge while issuing
notice to the appellant has passed an
interlocutory order in the nature of
restraining the appellant from working as
officiating principal in institution but
there is nothing to show that the Hon'ble
Single Judge has decided any issue or has
recorded a finding of fact on any aspect of
the matter against which part an appeal
may lie under Chapter VIII, Rule 5 of the
Rules of the Court.

23. It is not to be emphasised that
right of appeal is a creature of statute and
unless the law specifically provides for
filing the appeal, that cannot be permitted.
Any order or decision as referred in
Section 19 of the Act cannot be read
independently from an order of punishing
for contempt.

24. So far the decision on which
reliance has been placed by counsel for
the appellants on the facts and details so
noticed have no application to the case in
hand.

25. In the decision given in the case
of V. M. Manohar Prasad (Supra) the
Apex Court said that if the order of the
Contempt Judge is without jurisdiction
then the appellants may approach the
appellate forum. On the facts, this Court
2 All] Chet Ram V. State of U.P.
547
is not to accept the submissions of the
appellants that observations of the learned
Single Judge in the impugned order is
without jurisdiction for the simple reason
that learned Single Judge has just
reiterated earlier orders passed by the writ
court and asked the appellants to comply
them. No independent or fresh order on
the merits has been passed and, therefore,
the contention of the appellants side
suggests to interpretation of the orders
passed by the writ court in respect to their
compliance as being claimed or about
their non compliance as being complained
which cannot be done here. Accordingly
the appellants cannot take advantage of
the decisions so referred.

26. In the decision given in the case
of Modi Telefibres Ltd. and others
(Supra) the Apex Court found that the
learned Single Judge has recorded a
finding about committing of the contempt
by the appellants and the case was
adjourned to accept the contemnor to
purge the contempt or else for deciding
the quantum of punishment. This not
being the situation here, the decisions so
referred may be of not much help to the
appellants.

27. So far the decision in the case of
A. P. Verma (Supra) on which reliance
has been placed by the appellants, the
Apex Court said that if a contention
which goes to the very root of the
jurisdiction is raised and the same is
turned down or the order or decision is
such which decides some bone of
contention effecting the rights of the
parties aggrieved, an appeal would be
maintainable. Here is not a case where
any fresh decision has been given by the
learned Contempt Judge deciding some
bone of contention effecting the right of
the parties rather earlier orders passed in
the
writ
were
just
reiterated
and,
therefore, neither it can be said to be a
case of an order by the learned Judge
which is without jurisdiction or deciding
rights of the parties afresh.

28. On these facts, it cannot be said
that the cases on which reliance has been
placed by the learned counsel for the
appellants have taken the view that every
order as and when passed by Hon'ble
Single Judge is appealable under Section
19 of the Act.

29. This being the situation on an
analysis and in view of the decision of the
Apex Court in the case of Midnapore
Peoples' Coop. Bank Ltd. and others
(Supra), this Court has to take the view
that appeal filed by the appellants is not
maintainable.

30. Accordingly this contempt
appeal is held to be not maintainable and
thus it is dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.07.2009

BEFORE
THE HON'BLE SHRI KANT TRIPATHI, J.

Criminal Appeal No. 3852 of 2009

Chet Ram

...Appellant
Versus
State of U.P.

...Opposite Party

Counsel for the Appellant:
Sri Ajay Tiwari

Counsel for the Opposite Party:
A.G.A.