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IN THE HIGH COURT OF CALCUTTA
Pinaki Chandra Ghose, Kalyan Jyoti Sengupta And Biswanath Somadder, JJ.
Smt. Manjusree Chandra & ors.
Vs.
State of W.B. & ors.
W.P.S.T. 603 of 2006 With W.P.L.R.T. 780 of 2007
Decided on : 17.5.2012
CONTEMPT OF COURT - APPEAL - HIGH COURT'S POWER - ORDER DROPPING CONTEMPT PROCEEDINGS - JUDICIAL REVIEW - CONSTITUTIONAL REMEDY - ARTICLES 226/227 - AVAILABILITY - APPEALABILITY UNDER SECTION 19 OF THE CONTEMPT OF COURTS ACT, 1971 - MANJU BANERJEE CASE OVERRULED.
Fact of the Case:
The Division Bench of the Calcutta High Court referred a question of law to a larger Bench to decide whether an application under Articles 226/227 of the Constitution of India against an order refusing to entertain or dropping a proceeding for contempt under the provisions of the Contempt of Courts Act, 1961 passed by a Tribunal constituted under Articles 323A or 323B of the Constitution of India is not maintainable simply because an appeal lies against an order of punishment passed by such Tribunal before the Hon'ble Supreme Court under Section 19 of the Act, and whether High Court is powerless to rectify such an order passed by the Tribunal even if it creates an error in taking such decision resulting injustice and prejudice to the applicant.
Finding of the Court:
The larger Bench held that the High Court has the power to entertain an application under Articles 226/227 of the Constitution of India against an order refusing to initiate or dropping contempt proceedings by a Tribunal constituted under Articles 323A or 323B of the Constitution of India, even if an appeal lies against such order under Section 19 of the Contempt of Courts Act, 1971. The Court overruled the earlier decision of the Division Bench in Manju Banerjee & Ors. V. Debabrata Pal & Ors. (2006) 1 CAL LT 87 (HC), which had held that such an application is not maintainable.
Issues: 1. Whether an application under Articles 226/227 of the Constitution of India against an order refusing to entertain or dropping a proceeding for contempt under the provisions of the Contempt of Courts Act, 1961 passed by a Tribunal constituted under Articles 323A or 323B of the Constitution of India is not maintainable simply because an appeal lies against an order of punishment passed by such Tribunal before the Hon'ble Supreme Court under Section 19 of the Act? 2. Whether High Court is powerless to rectify such an order passed by the Tribunal even if it creates an error in taking such decision resulting injustice and prejudice to the applicant.
Ratio Decidendi: 1. The power of judicial review of the High Courts under Articles 226/227 to scrutinize the decision of subordinate Tribunals has really been restored whittling down jurisdictional bar by the pronouncement in L. Chandra Kumar vs. Union of India reported in amongst other AIR 1997 SC 1125. 2. The remedy under Articles 226/227 being one of the basic features of the Constitution cannot be excluded by simple legislation either expressly or by necessary implication. 3. Any order dropping the contempt is passed for some reason or other overlooking a concrete case of patently deliberate and willful violation of binding order, the same can be termed as gross failure of exercise of jurisdiction if not cowardice jettisoning of lawful power. 4. In such situation and even in case where the Court or Tribunal passes any order that ought not to have been passed in exercise of contempt jurisdiction, the High Court and the Supreme Court guardians of the Constitution, are duty bound to intervene on the strength of plenary power, and to ensure smooth flow of the stream of justice delivery system.
Final Decision: The Court answered the first limb of the question referred to it in the affirmative and the second limb in the negative. It held that the ratio decided by the Division Bench in Manju Banerjee's case is not accepted to this Bench as the said ratio runs counter to the constitutional provision as discussed above.
K.J. Sengupta, J:-
1. In the matter being W.P.S.T. 603 of 2006 the Division Bench of this Court consisting of Hon’ble Acting Chief Justice Bhaskar Bhattacharya and Hon’ble Mr. Justice Kishore Kumar Prasad (as Their Lordships then were) after hearing found that this matter could not be disposed of for the reason as mentioned hereinafter. The W.P.S.T. 603 of 2006 was filed against order dated 8th March 2006 passed by the State Administrative Tribunal in the contempt proceedings being No. CCP 43 of 2004. By the order impugned the learned Tribunal dismissed the contempt proceeding observing that the order passed previously by the learned Tribunal in the original proceedings was not at all implementable. While hearing the said matter the aforesaid Division Bench could not decide it conclusively as a plea was taken that no proceeding against the order dropping of contempt proceedings can be initiated in this Court under Articles 226/227 of the Constitution as it has been held earlier by another Division Bench of this Court in case of Manju Banerjee & Ors. V. Debabrata Pal & Ors. reported in (2006) 1 CAL LT 87 (HC).
2. The referring Division Bench however could not agree with the proposition of law laid down by the Division Bench in case of Manju Banerjee (supra). Hence Their Lordships have been pleased to direct to place the matter before the then Hon’ble Acting Chief Justice for constituting a larger Bench for deciding following question:
“Whether an application under Articles 226/227 of the Constitution of India against an order refusing to entertain an application for contempt or dropping a proceeding for contempt under the provisions of the Contempt of Courts Act, 1961 passed by a Tribunal constituted under Articles 323A or 323B of the Constitution of India is not maintainable simply because an appeal lies against an order of punishment passed by such Tribunal before the Hon’ble Supreme Court under Section 19 of the Act, and whether High Court is powerless to rectify such an order passed by the Tribunal even if it creates an error in taking such decision resulting injustice and prejudice to the applicant.”
3. Consequently this matter has been referred to by the Hon’ble Chief Justice to this Bench. Thereafter other two Division Benches having faced same problem referred two matters being W.B.L.R.T. 780 of 2007 and W.P.S.T.1103 of 2007. The Hon’ble Chief Justice accordingly placed these matters along with above matter for the decision on the above point.
4. It will appear from the said question there are two limbs - (i) whether an application under Articles 226/227 of the Constitution of India against order as mentioned therein is maintainable or not, (ii) whether High Court is powerless to rectify such an order as mentioned therein.
5. Mr. Ashok Kumar Maity, learned Senior Advocate appearing for the petitioner in W.P.L.R.T.780 of 2007 submits that the impugned order dropping the contempt proceedings by the learned Tribunal is assailable in exercise of jurisdiction under Articles 226 and 227 of the Constitution of India in this Hon’ble Court. It would appear from Section 6 of the L.R.T.T. Act read with Section 15 that any order passed by the learned Tribunal is amenable to the scrutiny of the aforesaid provision by the Division Bench of this Court. While drawing our attention to the judgment of the Supreme Court in case of L. Chandra Kumar -vs- Union of India reported in amongst other AIR 1997 SC 1125 he contends that power under Articles 226/227 of the Constitution of India of the High Court is part of the basic structure of the Constitution and the same cannot be curtailed by any ordinary legislation. According to him views taken by Division Bench of this Court in case of Manju Banerjee and ors. vs. Debabrata Pal and ors. are not legally correct. Therefore, order dropping of the contempt proceedings despite having found glaring, brazen and patent violation and disobedience of the order of the learned Tribunal is tantamount
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