2 S.C.R.

SUPREME COURT REPORTS

SANKATHA SINGH

STATE OF U.P. (S. K. DAs, K. SUBBA RAo and RAGHUBAR

DAYAL, JJ.)

Criminal Procedure-Appellate Court's power to e-hear appeal after having dismissed it earlier-Code of Criminal

l'rocedure, 1898 (Act V of 1898), sa. 367, 369, 424.

The question for decision was whether a crimi?al appellate court could order the re-hearing of an appeal which it had earlier dismissed, when neither the. appellant< nor their counsel appeared, holding that it h.ad perused t.he record of the case and saw no reason for interference with the triaJ court's order.

Held, that the appellate court's omission to write a detailed judgment in a criminal appeal in which neither the appellant nor his counsel appeared might not be in compliance with the provisions of s.367of the Code of Criminal Procedure and might be liable to be set aside by a superior court, but 'vill not give that court itself power to set it aside and rehear the appeal.

At the re-hearing of the appeal the successor of the appellate court was competent to consider, on an objection bei?g raised by the other party, whether the appeal was vahdly up for hearing before him.

Section 369 read with s. 424 of the Code of Criminal Procedure specifically prohibits the altering or reviewing of its order by a court.

Inherent powers of the court cannot be exercised to do what the Code specifically prohibits the court from doing.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 145 or 1959.

Appeal by special leiive from the judgment and order dated March 19,1959, of the Allahabad High Court in Criminal Revision No. 1299 of 1957.

8. P. Sinha and P. C. Agarwala, for the appellant.

G. C. , fathur and C. P. Lal, for the respondent.

1962. January 25.

The , Judgment of the Court was delivered by

January 25.

Jt16Z

8...Uth• s i•th

S1<1t1 •JU. P.

R•g,,.har Dayal J.

818 SUPREfE COURT REPORTS [l!l62) Sl'PP.

RAORUBAR DAYAL, J.-Sankatha Singh and others appeal against the order of the All aha had High Court diFmissing their application for revisrnn

of the order of the Sessions Judge, Gyanp ur, holding the ordl'r of his predeceBSor for the rehearing of an appeal which had bPen dismissed earlier to hi" ultra 1Jires and without jurisdiction and directing the Magi8trate to take immediate steps to l'Xecute thi> order passed by it, according to law.

The appellants were convicted by the Magistrate, I Class, Gyanpur, of offences under ss. 452 and 323 read with s.34, I.P.C. Kharpattu, one of the appellants, was also convicted of an offenco under s. 324, J.P.C. They appealed against thrir Ponviction.

The appPal was fixed for hearing on XoYemher 30, 1956. On that <lat(', noilht'r t:1e appellants nor their counsel appPared in Court and the learned Sessions Judge dismissed thl' appeal.

The rel"'ant portion of his order is :

"The appellants have beon absent, and their learned counsel has also not appeared to :uguc the appeal on behalf of the appel- J.mts.

I have perused the judgment of the learned Magistrate and seen the record. I find no ground for any interference. The appeal is accordingly dismissed."

On December J 7, 1956, an application was presPntcd hy the appellsnts praying that the P.ase he restond to its original numbor so that justico he doirn to t h"m.

In expl11.ining their absence from Court on thn <lato of hearing, it was said that they reRchcd the Court somewhat lntc due to the Ekka,

by which they were travellin~" over turning arcidontally on the way and, ru1 a result, lht>ir getting

injurit•s. This application was allowed, on July 2, I !l5i, hy the lcarne<l Sessions Judge, Sri Tej Pal Singh, who had dismissed the appeal. His reasons for allowing the application appear, from his orde1,

2 S.0-.lt.

SUPREME COURT REPor.rs 819

to be that the apnlioation' supported by an affidavit, showed that there was sufficient cause for the non-appearance of the appellants-accused at the time of the hearing of the appeal, that s. 423 of the Code of Criminal Procedure (hereinafter called the Code) enjoined the appellate Court to dispose of the appeal on merits after hearing the appellant or his pleader and the Public Prosecutor, that no notice was ever isAued to the appellants as required bys. 422 of the Code, that s. 367 of the Code la.id down what a judgment should contain and that his judgment of November 30, 1956, amounted to no judgment as it did not contain some of those salient points, that the judgment was without jurisdiction as the case was not really considered and no independent judgment was arrived at and

tht it was necessary that the appeal be re-heard in the ends of justice.

Sri Tripa.thi, who succeeded Sri Tej Pal Singh as Sessions Judge, and before whom the appeal was put up for re-hearing, was of the opinion that the appellate Court had no power to review or restore an appeal which had been disposed of and that therefore the order of his predecessor dated July 2, 1957, was ultra vires and passed without jurisdiction.

Against this order, the appellants went in revision to the High Court. The learned Judge of the High Court agreed with the views of Sri Tripatbi and accordingly, dismissed the revision application.

The sole point for determination in this appeal is whether Sri Tej Pal Singh could set aside his £rot order dat.Ad No>ember 30, 1956, dismissing the appeal, when neither t.he appellants nor their counsel appeared and could order the re-hearing of the appeal. We are of opinion that he could not do so and that therefore the view taken by the High Court is correct.

Sankatha Singh

v. ,)tare of U. P.

Ragl.ubar Dayal J.

Bal11Aa Bm16

v. 8..U of U. P.

BogMbor D41'1 J.

820 SUPREME OOURT REPORTS [1962) SUPP.

A criminal appeal cannot be dismiBBed for the default of the appellants or their counsel. The Court has either to adjourn the hearing of the appeal to enable them to appear, or should consider the appeal on merits and p&SS the final order. Sri Tej Pal Singh was a.ware of this as his order itself indicates.

He did not dismiss the appeal for default. He himself perused the judgment of the Magistrate and the record and did consider the merits, as he says in his order : 'I find no ground for any interference'. The mere fact that he ha.d not expreBSed his reasons for coming to that opinion does not mean that he ha.d not considered the material on record before coming to the conclusion that there was no case for interference. His omission to write a detailed judgment in the circumstances may be not in eomplianci> with he

provisions of s. 367 of the Code and may be liable to be set as.ide by a superior Court, but will not give him any power to set it aside himself, and

rehear the appeal. Section 369, rea.d withs. 424, of the Code, makes it clear that the appellate Court is not to alter or review the judgment once signed, except for the purpose of correcting a clerical error.

Sri Tej Pal Singh was in error when he thought that s. 423 of the Code enjoined the appellate Court to dispose of the appeal after hea.ring the appellant or his pleader and the Public Pro- Becutor.

He omitted to notice tho words 'if he appears' aftP-r tho expros.ion 'and hearing the appellant or his pleader'. If none of these appears at the hearing, the appellate Court can proceed with the disposal of the appeal on merits. Of <'ourse, a notice to t, he appellant or his counsel of the date of hearing is an rssential precedent for the hearing of the appeal, in view of s. 422 of the Corle, Sri Tej Pal Singh states, in his order dated ."tu]_,. 2. I p,;7 :

2 S.C.R.

SUPREME COURT RE FORTS 821

"It will also appear that the conditions of s.422, Cr. P. C. were also not fulfilled, as no notice was ewir issued to the appellant." Ho again missed noticing that a notice of the hearing of the appeal has to be given either to the appellant or to his pleader and need not be given to both. He does not say in his order_ that no notice of the date of hearing had been given to the appellants' counsel. The practice, usually, is to gi've notice of the date of hearing of the appeal to the counsel who informs the appellant, and not to the appellant personally. The application for restoration indicates that the appellant knew of the date of hearing.

It has been urged for the appellants that Sri Tej Pal Singh could order the re-hearing of the appeal in the exeroise of the inherent powers which every Court possesses in order to further the ends of justice and that Sri Tripathi was not justified in any case to sit in judgment over the order of Sri Tej Pal Singh, an order passed within jurisdiction, even though it be erroneous. Assuming that Sri Tej Pal Singh, as Sessions Judge, could exercise inherent powers, we a.re of opinion that he could not pass the order of the re-hearing of the appeal ii:J. the exercise of such powers when s. 369, read with s. 424, of the Code, specifically prohibits the altering or reviewing of its order by a Court. Inherent powers cannot be exercised to do what the Code specifically prohibits the Court from doing. Sri Tripa.thi was competent to consider when the other party raised the objection whether the appeal was validly up for re-hearing before hiru. He considered the question and decided it rightly.

It i~ also urged for the appellants that Sri Tej Pal Singh, had the jurisdiction to pass orders on the application presented by the appellants on December 17, 1956, praying for the re-hearing of the appeal and that therefore his order could not

Sankalha Sin1h

Stahoj U.P.

Stot.ofU. P.

Rogllubar DaJol J,

IHJ

822 SUPREME COURT REPORTS [l9o2] SUPP.

b.e said to have been absolutely without jurisdict10n. We do not agree.

He certainly had jurisdiction to dispose of the applimtion presented to him, but when s. :l69, of the Code <ldinitcly pi ohiLited the Court's reviewiug or alteriug it8 judgment, he had no jurisdiction to con8ider the point raised and to set aside the order di8rnissi11g the appeal and order its re-hearing.

We therefore see no force in this appeal and accordingly dismi8s it.

A ppe.al d ismis;; t d.

THE MANAGE:IJE~T OF U.B. DUTT & CO.

WORKMEN OF U.B. DCTT & CO. (P. B. GA., JE!'IDRAGADKAR, A. IC SARKAii and K. N. WANCllOU, JJ.)

Induatrial Dilpul<-1'ermination of .•m.ice of employee in lerln6 of contract-Dropping of propnsed deparlrrumtal •nquiry -If colcurable exercise of power-If ca11 be questioned before i11d1Utrial-tribu1.al-Principle tuminating Government Service -If IJf>Plits to indUdtrial emplcyeu.

S, employed by the appellant as a cross cutter in the saw mill was asked to show cause why his services should not be terminated on account of grave indiscipline and misconduct and he denied the allegations of fact.

He was thereafter informed about a department enquiry to be held against him and was suspended pcding enquiry. Purporting to act under r. 18(a) of the Standing Orders, the appellant terminated the services of S, without holding any departmental enquiry. The industrial tribunal to which the dispute was referred held, that action taken, after dropping the proposed departmental pro ceedings was not bonafid< and was a colourable cx.rcisc of the power conferred under r. 18(a) of the Standing Order and aince no attempt was made before it to defend such action by proving the alleged misconduct, it passed an order for reinstatement of S. The appellant contended that as the termination was strictly in accordance \Vith the terms of contract under r. 18(a) of the Standing Ordcn, it was entitled to dispense

SANKATHA SINGH

STATE OF U.P. (S. K. DAs

K. SUBBA RAo

DAYAL, JJ.

Code of Criminal Procedure

Section 369

s. 424

Code of Criminal Procedure

ss. 452 and 323

I.P.C

s. 324

s. 423

Code of Criminal Procedure

s. 367

s. 367

Section 369

s. 423

s. 422

s. 369

s. 424


Stot.ofU. P.

Rogllubar DaJol J,

IHJ

822 SUPREME COURT REPORTS [l9o2] SUPP.

b.e said to have been absolutely without jurisdict10n. We do not agree.

He certainly had jurisdiction to dispose of the applimtion presented to him, but when s. :l69, of the Code <ldinitcly pi ohiLited the Court's reviewiug or alteriug it8 judgment, he had no jurisdiction to con8ider the point raised and to set aside the order di8rnissi11g the appeal and order its re-hearing.

We therefore see no force in this appeal and accordingly dismi8s it.

A ppe.al d ismis;; t d.

THE MANAGE:IJE~T OF U.B. DUTT & CO.

WORKMEN OF U.B. DCTT & CO. (P. B. GA., JE!'IDRAGADKAR, A. IC SARKAii and K. N. WANCllOU, JJ.)

Induatrial Dilpul<-1'ermination of .•m.ice of employee in lerln6 of contract-Dropping of propnsed deparlrrumtal •nquiry -If colcurable exercise of power-If ca11 be questioned before i11d1Utrial-tribu1.al-Principle tuminating Government Service -If IJf>Plits to indUdtrial emplcyeu.

S, employed by the appellant as a cross cutter in the saw mill was asked to show cause why his services should not be terminated on account of grave indiscipline and misconduct and he denied the allegations of fact.

He was thereafter informed about a department enquiry to be held against him and was suspended pcding enquiry. Purporting to act under r. 18(a) of the Standing Orders, the appellant terminated the services of S, without holding any departmental enquiry. The industrial tribunal to which the dispute was referred held, that action taken, after dropping the proposed departmental pro ceedings was not bonafid< and was a colourable cx.rcisc of the power conferred under r. 18(a) of the Standing Order and aince no attempt was made before it to defend such action by proving the alleged misconduct, it passed an order for reinstatement of S. The appellant contended that as the termination was strictly in accordance \Vith the terms of contract under r. 18(a) of the Standing Ordcn, it was entitled to dispense

2 S.C.R.

SUPREME COURT BEPORTS

with the service of an employee at any 1in1e Uy tirst giviug 14 days notice or, paying 12 days \vagc.s.

Hel1l, that the en1ployer's decision tu discharge the ernployce under r. l8(a) of the St<ttiding Oi-<lcrs after dropping the enquiry in tended to be helrl for 1nisconduct, \vas clcal'ly a colourable exercise of the po\ver, and an en1ployer could not press his right. purely on contract and ay that under the contract he has unfettered rjght "to hire and fire" his employees, right v.as subject to industrial adjudication and even a power like that granted by r-. I S(a) rif the Standiug Orders in this case, \\as subject t1l the scrutiriy of industrial courts.

Even in a case of this kind the req11iten1cnt of bona fides was esse11tial and if the tern1ination of service \Vas a colourable exercise of power, or was a 1csult of vic:tin1isation or unfair labour practice, the tribunal h,-, d jurisdiction to inter\enc and set aside such tern1ination.

Buckingham and Carnatic Co. Ltd. v. Workers of the Company, (1952] L.A.C. 490, referred to.

1'he Chartered Bank Bomlray v. 1'he Uharleml Bank JJ:mployees.Uniun. (1960] :l S.t:.R. 441 az'd A.; sam. Uil Company v. its Workmen, [1%llj :J S.C.H. 457, followed.

lleld, further, that the priHci1>le relating to termination ofGovernnient service stands on au entirely difl"ercut footing as cun1pared to industrial en1ployec.'i an<l the sa1ne principle could not be applied to industrial adju<lication.

Parshotam Lal Dhinyra v. Union uf India, [1958] S.C.R. 828, distinguished.

CIVIL APPELLATE JumsmcTION : Civil Appeal No. 50 of l9til.

Appeal by special leave from the Award dated March 10, 1959, of the Industrial Tribunal.

Kozhikode, in I.D. No. 89 of 1958.

A. V. Viswanatha Sastri and 'I'. V. R. Tatachari, for the appellant.

Jcinardan Sharma, for the respondente. '1962. January 29. The Judgment of the Court was delivered by

WANCHOO. J.-This is an appeal by special leave iu an industrial matter. The brief faets nflcessary for present purposes are these. The appellant in a saw-mill carrying on business in Kozihkode in

Thi Menagd.dnt.of

U. B. Dull "'Co.

Workm1nof U. B. Dutt & Co.

Wanchoo J,

116$ n..w-.. w." U.B Dolt di Co •

•• W..tr.m'o/ U. B. Dall di Co.

Wanc.W J.

824 SUPR&'dE COURT RgPORTS [1962] SUPP.

the State of Kerala.

One Sankaran was in the employ of the appellant ae a crosscutter. It is said that on June 21, l\l58, Sankaran came drunk to thEI mill and abused the Engineer, the Secretary and others and threatene<l them with physical violence. He was caught hold of by other workmen and taken outaido.

It i8 said that he came again a short tiroe later at 4-30 p.m. and abused the same perBons again. Tbereu pon tbe appellant served a charge.sheet on Sankaran on June 24, l\1511 acting out the above facts and asked him to show

cause why his services should not bu terminated on account of his grave indiscipline and misconduct.

Sankaran gave an explanation the same day denying the allegations of fact made against him, though be admitted that he had come to tho mill at the relevant time for taking bis wages for that week.

On June 25, 1958 Sankaran wllll informed that in view of his denial, a departmental inquiry would be held and ho was also placed under suspension pending inquiry. The same day Sankaran protested against his suspension and requested that in any case the departmental inquiry should be expedited. As no inquiry was held till July 2, l!J58, Sankaran again wrote to the appellant to hold the inquiry &1 early as p088ible. On July 8, l!l58, the appellant terminated the servioes of Sankaran under r. 18 (a) of the Standing Orders without holding any departmental inquiry and the order was communicated to Sankaran the same day.

In that order the appellant informed Sankaran that the proposed inquiry, if conducted, would lead to further friction and deterioration in the rank and file of the employees in general and also that maintenance of discipline in the undertaking would be prejudioed if he was retained in the service of the appellant, and therefore it considered that no inquiry should be held. A dispute was then

raised by the union which was referred to the industrial tribunal for adjudication by the Government of Kerala in October 1958. The tribunal held that

something seemed to have happened on the after- 111£2 noon of June 21, 1958 but there was no evidence to The Management of prove what had actually happened. It further held u. B. LJvtt"' c •. that the appellant had intended to take disciplinary w.,;:n,. if action against the workman but subsequently departu. B. Du11"' c,, mental proceedings were dropped and action was wa"h" J. taken under r. 18(a) of the Standing Orders. The tribunal was of the view that this was a colourable exercise of the power given under r. 18(a) to the appellant and therefore its action could not be upheld as a bona fide exercise of the power conferred. The tribunal also pointed out that no attempt was made before it to defend the action taken under r. 18 (a) by proving the alleged misconduct. Two witnesses were produced before the tribunal in connection with the alleged misconduct, but the tribunal did not r0ly on them on the ground that the important witnesses, namely, the Engineer, the Secretary awl other members of the staff whose evidence would have been of more value had not been prnduced and no explanation had been given why they were not produced. The tribunal therefore hold that on the facts it could not come to the conclusion that Sankaran had come drunk to the mill and a bused or attempted to assault either the Engineer or the Secretary or other officers. In the result the order of discharge was set aside and Sankaran was ordered to be reinstated. The appellant thereupon applied for special leave which was granted; and that is how the matter has come up before us.

The main contention of the appellant is that it is entitled.under r. 18 (a) of the Standing Orders to dispense with the service of any employee after complying with its terms. Rule 18 (a) is in these terms:-

''When the management desires to determine the services of any permanent workmen

• 962

Tiu \Jon,1gr!mt1.,' of

U. B. f>utl c{: C,.

Workmt11 of U. B. J..1..1u d: C?.

Wonchoo J,

8:::6 Sl.'PREME COURT REPORTS [1962] SUPP .

receiving I:! a.i. or more as daily wagos, otherwi;; c, than undn rule 21. ho shall be given l4 days notice• c, r be paid 12 days wages." ft may Le mention<'d that r. :! I dPals with cases of miscond11ct and providPs for dismissu.! or suspension for misconduct and in sud1 a C'Mle the workman eo s11spc11d1d is nut entitled to any wages during the

period of MUspensiou.

The claim thus put forward on behalf of the aµpellant iR tbat it is entitl"; d

undt.>r r. IS(a) of tho tanding Orders which is a turm of contmct between the appellant and its employees to dispense with the service of any employee at any time by just giving 14 days notice or paying 12 days wages.

we are of opinion that thi8 claim of the appellant cannot b1o1 accepted, and it iH too late in the day for an employer to raise such a ch\im for it amounts to a claim "to hire am! firo" an Prnployee a.s tho employer plcascg and thus <'flmpl!'tdy mgative~ scrnritv of SN\'ic which has been seemed to ir.dustrial enipl0yccs t Ii rough industrial adjudication for over a long pc>riutl of tinw now.

As far back as 195~, the Labc.ur Appellutt• Tribunal had occasion to consider this matter relating to discharge by notice or in lieu thereof by paymcnt of wages for a certain period without assigning any reRHon: (.1ee Buckingham and Carnaiic Co. Ltd. EU;. v. W orkeis of the Company. de.) ('). It was of opinion that even in a

case of this kind the nquiremont of bona /ides is essential and if the termination of service is a colourable exercise of the powcr or as a result of victimisation or unfair labour practice the iadustrial tribunal would hav" the jurisdiction to intervtne

Rncl set a.ide such termination.

Furthc•r it held that where the termination of senico is capricious, arbitrary or unmecssarily harsh on the part of the

C'lllployer juclgccl by n01mal standards uf a reasonable man that may be cogent evidence of victimisation or unfair labour practice.

These observations I. ( 195l) L.A.C. 490.

of the Labour Appellate Tribunal were approved by this Court in 'l'he Chartered Banlc, Bombay v. The Chartered Bank Employees' Union('). and Assam Oil Company v.

It~ Workmen('). Therefore if as in this case the employer wanted to take action for misconduct and then suddenly dropped the departmental proceedings which were intended to be held and decided to discharge the employee under r. 18 (a) of the Standing Orders, it was clearly a colourable exercise of the power under that rule in as much as that rule was used to get rid of an employee instead of following the course of holding an inquiry for misconduct, notice for which had been given to t.he employee and for which a departmental inquiry was intended to be held. The reason given by the appellant in tho order terminating the services of Sankaran of July 8, 1958, namely, thah-the proposed inquiry, if conducted, would lead to further friction and deterioration in the rank a11d file of the employees in general and also that maintenance of discipline in the undertaking would be prejudiced if Sankaran were retained in service, cannot he accepted at its face v11lue; so that the necessity for an inquiry intended to he held for misconduct actually charged might he done away with.

In any case oven if the inquiry was not held by the appellant and action was taken under r. 18 (a) it is now well-settled, in view of the decisions cited above, that the employer could defend the action under r. 18(a) by leading evidence before the tribunal to show that there was in faet misconduct and therefore the action taken under r. 18(a) was bona fide and was not colourable exercise of the power under that rule. But the tribunal has pointed out that the employer did not attempt to do so before it. It satisfied it.self by producing two witnesses but withholding the important witnesses on this question. In the circumstances, if the tribunal did not accept the evidence of the two witnesses

(1) [1960] 3 $.C.R. 441.

(2) [1960] 3 $.C.R. 457.

The M a11ugement of

U. B. Dutt &> Co. v, Workwtn of U. B Dutt & Co.

Wtmchoo J.

1 lw Manag11111nl of lJ. B. Dutt &:- Co.

Worhnfn of U. B,

Dull 4' Co.

WachooJ,

who were produced it cannot be said to have gone wrong.

Larned counsel for the appellant however urges that the employer was empowered to take action under r. 18 (a) of the Standing Orders and having taken action under that rule, there was nothing for it to justify before the tribunal. We have already said that this position cannot be accepted in industrial adjudication relating to termination of service of an employee and has not been accepted by industrial tribunals over a long course of years now and the view taken by industrial tribunals has been upheld by this Court in the two cases referred to above. Learned counsel for the appellant, however, relies on the decision of this Court in Par8holam Lal Dhingru v. Union of India.(') That was however a ease of a. public servant and the considerations thai a1, ply to such a case are in our opinion entirely different. Stress was laid by the learned counsel on the obsNvations at p. 862 where it was ob:; erved as follows :-

"It is true that the misconduct, negligence inefficiency or other disqualification may be the motive or inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service, the motive operating on the mind of the Government is, as Ohagla C. J. has said in Srinivas Ganesh v. Union of India l') (supra), wholly irrelevant.

It is urged that the same principle should be applied to industrial adjudication. It is enough to say that the position of government servants sds on entirely different footing as compared to mdust~1al employees.

Articles 310 and 311 of the Constitution apply to government servants and it is in the

(I) [1958) S.C.R. 828.

(2) A.J.R. (19~) Bom. 455.

light of those Articles read with the Rules framed under Art. 309 that questions relating to termination of service of government servants have to be considered. No euch constitutional provisions have to be considered when one is dealing with industrial employees. Further an employer cannot nowpress his right purely on contract and say that under the contract he has unfettered right "to hire and fire" his employees. That right is now subject to industrial adjudication and even a power like that granted by r. 18 (a) of the Standing Orders in thie case, is subject to the scrutiny of industrial courts in the manner indicated above. The appellant therefore cannot rest its case merely on r. rs

(a) and say that having acted under that rule there is nothing more to be said and that the industrial court cannot inquire into the causes that led to the termination of service under r. 18 (a). The industrial court in our opinion has the right to inquire into the causes that might have led to termination of service even under a rule like 18(a) and if it is satisfied that the action taken under such a rule was a colourable exercise of power and was not bona fide or was a result of victimisation or unfair labour practice it would have jurisdiction to intervene and set aside such termination. In this case the tl'ibunal held that the exercise of power was colourable and it cannot be said that that view is incorrect, The appellant failed to rntisfy the tribunal when the matter came before it for adjudication that the exercise of the power in this case was bona fide and was not colourable. It could have easily done so by producing satisfactory evidence ; but it seems to have reated upon its right that no such justification was required and therefore having failed to justify its action must suffer the consequences.

Learned counsel for the appellant also drew our attention to another decision of this Court in

The Managem<nt of

U. B. Dutt &: Co.

•• Workmen of U. IJ. Dutt &: Co.

Wonchoo J.

n.M..,.,.,.."'of U. B. D#JI <lo Co.

Wor4m.n oJ U. ll. D"11 &> Co.

W-.OJ.

The Pat1U1 El.utrk Supply Co.

Ltd. Patna v.

Bali Rai ('). That Ctl8e in our opinion has no applicu.tion to the facts of this case because that oaee dealt with an application under 8. 33 of the Industrial Diputes Act while the present proceedings are under s. IO of thfl Act and the considerations which apply under s. 33 are different in many respects from those which apply to an adjudication under

8. IO.

The appeal therefore fails and is hereby dismissed with costs.

Appeal dismissed.

"CDAI BHAN

THE STATE OF UTTAR PRADESH

(J. L. KAPL'R and RAGHUBAR DAYAL, JJ.) c,-; m i11al J.a1"-Evi<l ence-Confeasion-lnf<>rmation reuit'ed fron, accu-<f.d-Accuaed producing alo/en artic/u--If amou"'8 to confe88ion-Admi•sibility of production-Indian Evid<n~ Act, 18i2 (1of1872), ""· 2.;, 26, 27-lndian Penal Code (Act 15 of JS'IO), ... 71,380,457.

On October 13, 1956, at about 8 p.m. the com)llainant lorked !tis shop and went out for a while, but when he retur-. ned he found the shop broken open and his box containing money and clothes stolen.

On information given that the appellant had been seen carrying the box from the direction of the complainant's shop the appellant was arrested by the sub-inspector of police and on being interrogated he produced a box from out of a pond situate close to his field and handed o\-.r the same to the sub-inspector.

He also produced a key from out ofa bunch of keys, which fitted the lock of the shop belonging to the complainant, and the sub-inspector took into posscasion both the key and the lock.

The appellant was tried for offences under ss. 380 and 457 of the Indian Penal Code and convicted by the Magistrate under both the sections.

The appellant contended that the conviction wa• unsustainable

(I) [1958] S. C. R 871.

WORKMEN OF U.B. DCTT & CO

Articles 310 and 311

Art. 309

s. 33

Penal Code

ss. 380 and 457

Indian Penal Code


n.M..,.,.,.."'of U. B. D#JI <lo Co.

Wor4m.n oJ U. ll. D"11 &> Co.

W-.OJ.

830 SUPREME COURT REPORTS [1962] SUPP.

The Pat1U1 El.utrk Supply Co.

Ltd. Patna v.

Bali Rai ('). That Ctl8e in our opinion has no applicu.tion to the facts of this case because that oaee dealt with an application under 8. 33 of the Industrial Diputes Act while the present proceedings are under s. IO of thfl Act and the considerations which apply under s. 33 are different in many respects from those which apply to an adjudication under

8. IO.

The appeal therefore fails and is hereby dismissed with costs.

Appeal dismissed.

"CDAI BHAN

THE STATE OF UTTAR PRADESH

(J. L. KAPL'R and RAGHUBAR DAYAL, JJ.) c,-; m i11al J.a1"-Evi<l ence-Confeasion-lnf<>rmation reuit'ed fron, accu-<f.d-Accuaed producing alo/en artic/u--If amou"'8 to confe88ion-Admi•sibility of production-Indian Evid<n~ Act, 18i2 (1of1872), ""· 2.;, 26, 27-lndian Penal Code (Act 15 of JS'IO), ... 71,380,457.

On October 13, 1956, at about 8 p.m. the com)llainant lorked !tis shop and went out for a while, but when he retur-. ned he found the shop broken open and his box containing money and clothes stolen.

On information given that the appellant had been seen carrying the box from the direction of the complainant's shop the appellant was arrested by the sub-inspector of police and on being interrogated he produced a box from out of a pond situate close to his field and handed o\-.r the same to the sub-inspector.

He also produced a key from out ofa bunch of keys, which fitted the lock of the shop belonging to the complainant, and the sub-inspector took into posscasion both the key and the lock.

The appellant was tried for offences under ss. 380 and 457 of the Indian Penal Code and convicted by the Magistrate under both the sections.

The appellant contended that the conviction wa• unsustainable

(I) [1958] S. C. R 871.

because (I) the appellant's hnding over the box and the k•y amounted to a confessional statement made to a police officer and, therefore, the production was inadmissible in evidence under ss. 25 and 26 of the Indian Evidence Act, 1872, and thats. 27 was not applicable, and (2) ss. 380 and 457 of the Indian Penal Code were offences which fell under s. 71 of the Code and, therefore, the appellant could not be punished under both the sections.

Held, thats. 27 of the Indian Evidence Act, 1872, was applicable to the case and that the conviction of the app•llant was valid.

A discovery of a fact includes the object fO'lnd, the place from which it is produced and the knowledge of tre accused as to its existence.

Applying this test, the evidence in regard to the discovery of the kev as well as the box was rightly admitted into evidence in the p'resent case.

Lackman Singh v.

The State, [1952]

S.C.R.839, Ramkishan Mithanlal Sharma v. The State of Bombay, [1955]

1 S.C.R. 903 and Pulukuri J(otayy• v. Emperor, (1946) L. R. 74 I.A. 65, relied on.

Held, further, that the two offences under ss. 380 and 457 of the Indian Penal Code did not fall under s. 71 of the Code, and, therefore, the conviction under both the sections was not illegal.

In re Natesa Mud<i/i'.ar, A.LR. 1945 Mad. 330, considered.

CRIMINAL APPELLATE JURISDICTION : Civil Appeal No. 243 of 1959.

Appeal by special leave from thfl judgment and order dated September 25, I !l!'i!l. of the Allahabad High Court in Criminal Re, ision No. 1546 of 1958.

M.l. Khowaja. for the appellant.

G. C. Mathur and C.P. Lal, for the respondent.

1962. January '.!9.

The Ji1dgment of the Court was delivered by

KAPUR, J.-This is an appeal against the Judgment and order of the High Court of Allahabad dismissing the revision application of the appellant

Udai Bhan

v, f'h1 .\tat1 of Utlar Pradesh

KalJur J.

IllQ

Udai BJup, •• Tiu Btcl.,, f UllM Pralu~

Kop"' J.

against his conviction under ss. 457 and 380 of the Indian Penal Code.

On October 13, 1956, at about 8 p.m. the complainant locked his shop and went out for a short while. On his return after about three-fourths of an hour he found his shop broken open and a box containing Rs. 2,000 and clothes and another box containing Rs. 200 stolen. He was told by prosecution witnesses Lila.dhar a.nd Harnam Singh a.nd two others tha.t they had seen the appellant a.nd Nara.in ca.rrying a.way the boxes. On the following day at about IO a.m. a. report was lodged with the police and on October 15, 1956, the appel !ant was arrested by Sub-Inspector Virendrapal Singh. According to the prosecution, on being interrogated the appellant produced a. box from a pond and handed over the same to the Sub-Inspector.

He also produood a. key from out of a. bunch of keys before the Sub-Inspector and that key fitted the lock of the complainant which ha.d been sent for.

The Sub-Inspector took into possession both tho key and the lock.

The a.ppellant and N'arain wore tried for offences against ss. 457 a.nd 380 of the Indian Penal Code and the appellant was convicted by the Magistrate under both the sections a.nd was given consecutive sentence of one year's rigorous imprisonment under s. 457 and six months' rigorous imprisonment under s. 380, Indian Pena.I Code.

Narain was, however, acquitted. The appellant unsuocessfully appea.lcd to the Sessions J udgo and then took a revision to the High Court which was dism1BSod.

He has brought the present appc:i.l by Special Leave.

The High Court upheld the conviction holding that from the fa.ct that the appellant was seen carrying the box from the direction of the compla.inant's shop and soon after produced the box

a.nd the key with which the Jock could be opened were sufficient for the purposes of holding that he

had committed offences with which he was charged.

The High Court also held that it was unnecessary to go into the question of possession of the stolen articles because the fact that he knew that they were stolen from the shop of thP. appelhnt coupled with the fact that he was seen in the neighbourhood of the premises from where the arices were sto!en was sufficient to uphold the convwt10n. The H11rh Court did not go into the question of t.h3 app!icabi

lity or otherwise of s. 27 of the Indian Ev1denCA Act 1872 which had been held to be ultra vires ' , . by that court and has since been held to be intra vires by this Court* the reason being that there was no evidence of a statement made by the appellant about the stolen property made to the police and therefore there was no discovery resulting therefrom.

Three questions have been raised by the appellant. First : the case is covered by ss. 25 and 26 of the Evidence Act as the appellant's handing over the property amounts to a confessio nal statement made to a police officer and the production therefore is inadmissible in evidence.

The argument was put in this way that when an accused person in the custody of the police just produces an article which is stolen he must be.taken to have made a statement of a confessional nature to the police and not a statement in consequence of which a fact is disoovered by the police. In order to consider this question we have to see what exactly was stated to the police by the appellant.

Sub-Inspector Virendrapal Singh stated that he made an inquiry from the appellant about the stolen property and the appellant brought out a

box from the pond and handed it over to him. The pond was near the field of the appellant. He (Sub- Inspector) prepared a memo in respect of the recovery.

The key which was handed over to the

•State of U. P. \·. Deoman Upadhyo;•a, [1961] 1 S.C.R. 14.

t96t

Udo.i Bhan v The Slate of Vtt:Jr Pradesh

Kspur J.

UiaiB~

v. n.sw .. f u11., Pr..U.A

police by the appellant and which he took out from out of a bunch of keys, fitted the lock. A recovery memo waR prepared in whioh he had stated as

follows:

''In the presence of the witnesses, viz,, Shri Damodar Singh son of Sunder Singh, Pradhau and Liladhar Singh eon of Guiab Singh Thakur, residents of llfaoo, Udaibhan !IQn of Bhikam Singh, accused in this case took out from the bunch and handed over a key saying that he ha4 opened therewith the lock of the shop belonging to L!lik Singh. The lock of the shop of Laik Singh was opened with it.

It opened and closed easily. It was, therefore, taken into police possession. The look belonging to the complainant lvas also taken into police possession. Memo was prepared and signatures of the witnesses were obtained.'' In regiud to the recovery of the box the recovery memo stated as follows :-

"In the presence of the witneeses, viz., Sri Damodar Singh son of Sunder Singh and Liladhar Singh son of Guiab Singh Thakur, reRidents of Maoo, a tin box containing the clothes mentioned below was recovered from the water of the pond Garara, situate close to the field of Udaibhan accused, towards the west of the village, on the p0inting of Udhaibhan son of Bhikam Singh Thakur, resident of Maoo. It was taken out of water and handed over by Udaibhan, accused hims<"lf. It was taken into police possession and sealed on the spot. Memo was prepared on the spot and signatures of the witnesses were obtained."

These statements, it was contended, were confession" of guilt and were not covered by

R. 27 nf the Evidene Act. Section 27 is in the

2 t:l.C.R.

SUPREME COURT REPORTS 835

nature of a proviso to s. 26 which interdicts the provision of confessional statements made by a person in custody of the police. Section 27 reads as under :

"How muck of information received from acCUBed may be proved.-Provided that, when any fa.ct is deposed to a.s discovered in con sequence of information reoeived from a person acoused of any offence, in the custody of a police officer, so much of such informa tion, whether it amounts to a confession or not as relates distinctly to the fact thereby discovered, may be proved."

Thus, s. 27 partially removes the ban placed on the reception of confessional statements under s. 26. But the removal of the ban is not of such an extent as to absolutely undo the object of s. 26.

All it says is that so much of the statement ma.de by a person accused of an offence and in custody of a police officer, whether it is confessional or not, as relates distinctly to the fact discovered is prove. able. Thus, in this case taking the recovery memos the statements in regard to the key was this that the appellant handed over the key and said that he had opened the Jock of the shop of the complainant with that key. The handing over of the key is not a confessional statement but the confession lies in the fact that with that key the shop of the complainant was opened and, therefore, that portion will be inadmissible in evidence and only that partion will be admissible which distinctly relates to the fact discovered i.e., the finding of the key. Similarly the recovery of the box is proveahle because there is no statement of a confessional nature in that memorandum.

The Privy Council in Pulukuri Kottaya

v. Emperor i') dealt with this matter and

(l) (1946) L.R. 74 I.A. 65.

Udai Bhan •• The State of Uttor Pradesh

Ko; ur J.

UUI BA.,.

71. Slat. of Ulw Pr"hs•

""'"' J.

838 SOPREME COUR'l REPORTS [1962) SUPP.

obs11rved: "In their Lordships' view it is fallacious to treat the "fa.ct discovered" within the section a.e equivalent to the object produced ; the fact discovered embraces the place from which the object is produced a.nd the knowledge of tho accused a.e to this, a.nd the information given must relate distinctly to this fact".

The Privy Council accepted the decision of the La.horo High Court in 8uk11'Jn v. Emperor (1) and of the Bombay High Court in Ganw:Jiandra v.

Emperor(').

This Cou.rt, in Lachman Singh v. BUile (') held that if a. person in the custody of the police takes the police to a. p'l.rticula.r spot and a.t hie instance some blood-stained erth is recovered and ho a!Ro point& out the trunk of one of the dead bodies the ca.se is covered by the language of a. 27 a.nd the evidence of discoveries is admillllible. In a later case Ramkiahan Mit11'Jnl.al Sharma v. ~State of Ram.bay ('), it was observed that according to the section if a fa.ci is actually discovered in consequence of information given some guarantee is afforded thereby that the information was tme a.nd it can safely be allowed to be given in evi dence. KoUnya'a case(') was approved. Bhagwati, J., observed:

"On & ha.re reading of th'e terms of section it a.ppea.1'11 that what is allowed to be proved is

the information of such part thereof as relates distinctly to the fa.ct thereby discovered." Thus it appears that s. 27 dooe not nulify the ba.n imposed by s. 26 in regard to oonfeaa1on1 made by persons in police custody but beoauee there is tho added guarantee of truthfulness from

(1) (1929) 1.L.R. 10 Lah. 283. (21 (1931) I.LR. Ni Born. 172. (31 [1952l s.c.R. 839.

(4) [195SJ 1 s.c.R. 903.

(5) (l!HOJ L.R. 74 I.A. 65.

2 S.G.R.

SUPREME COURT REPOR'fS 837

the fact discovered the statement whether confessional or not is allowed to be given in evidence but only that portion which distinctly relates to the discovery of the fact. A discovery of a fact includes the object found, the place from which it is produced and the knowledge of the accused as to its existence. Applying this test, in our opinion, the evidence in regard to the discovery of the key as well as the box was rightly admitted into evidence in the present case. Apart from this we have the finding of the High Court that the appellant was seen carrying the .box narabout the pl:ice of occurrence when he was commg from the side of the shop of the complainant. Therefore the contention as to the non-applicability of s. 27 is with out substance and must be repelled.

It was next contended that as es. 457 and 380 of the Indian Penal Code are offences which fall under s. 71, the appellant could not be punished under both these sections. Sect.ion 457 makes punishable lurking house trespass by night or house breaking by night in order to the committing of any offence punishable with imprisonment and if the effence intended to be committed is theft, the punishment is higher. Section 380 makes punishable a theft committed in a dwelling house. The two offences do not, in our opinion, fall under s. 71 and, therefore, the conviction under both the sections is not illegal. See In re Natesa Mwlaliar (I).

There is no substance in the contention that the appellant was not examined under s. 342 of the Code of Criminal Prccedure about his handing over the key. This point was never taken at any stage before nor is it shown how the appellant was prejudiced by the non-examination in this respect.

This appenl is without force and is therefore dismissed. The appellant will surrender to his bail.

Appeal tlismissed.

(I) A. J. R. 1945 Madras 330.

UdaiB/um •• Tht Sl414 of U114r.Praltsh

Kapur J.

s. 33

CDAI BHAN

THE STATE OF UTTAR PRADESH

RAGHUBAR DAYAL, JJ.

Penal Code

ss. 380 and 457

Indian Penal Code

ss. 25 and 26

Indian Evidence Act, 1872

ss. 380 and 457

Indian Penal Code

s. 71

Indian Evidence Act, 1872

[1955]

1 S.C.R. 903

(1946) L. R. 74 I.A. 65

ss. 380 and 457

Indian Penal Code

s. 71

ss. 457 and 380

Indian Penal Code

ss. 457

Indian Penal Code

s. 457

s. 380

s. 27

CA Act 1872

ss. 25 and 26

[1961] 1 S.C.R. 14

Section 27

s. 26

Section 27

s. 27

s. 26

s. 26

(1946) L.R. 74 I.A. 65

s. 27

s. 26

L.R. 74 I.A. 65

s. 27

Indian Penal Code

s. 71

Section 380

s. 71

s. 342


IHI J_, u

838 SUPREME COURT REPORTS [1962) SCPP.

PHATAP SINGH A1"'D ANOTHER v.

GlJRBAKSH SINGH

(S. K. DAs, K. St:BBA RAo and RAGHt:BAR

DAYAL, JJ.) Conl"11pt of Court-Circular letter prohibiting Governmtnl ,.,.., nt from aeehng d.ciaion of Court bPfore exhausting official remediea-Proceeding on 1uch circular letter pending suit-If co...tilulta conkn.pl of Court-Contempt of r,•ourl.8 .. fol, 1952 (32 <f 1952), ' 3.

The appellants, both public se1vants, initiated depart mental proceeding. against the respondent, another public servant, for having sued the Government in the Subordinate Judge's Court •l Amritsar for a declaration that a certain sum of money was being illegally deducted from his salary; the respondent brought the suit before txhausting all hiJ deparUnental remedies as required bl an official circular which directed "that in the matter o grievanccs arising out of a Government Servant's employment conditions of service the proper course is to seek redress from the appropriate departmental and Government authorities. Any attempt by a Government servant to seek a drcision on such issues in a Court of law (even in cases where such a remedy is legally

admissible) without first exhausting the normal official channels of redress can only be rcgardtd as contrary to ofl"icial

propriety and subveraive of good discipline and may well justify the initiation of disciplinary action against the Govern

ment servant". The respondent complained to the High Court that the two appellants had committed rontempt of court punishable under s. 3 of the Contempt of Couru Act, 1952, as th<ir action was tentamount to interfering with his legal rights to seek rcdrtss in a court of law and amounted to exerting ptcs1Utt upon him to withdraw the suit, thereby obstructing the judicial proccss and interfering with the course of a suit pending in a Court subordinatt to the High Court, The High Court held that that the appciiaPts were clearly guilty of contempt but since they were merely carrying out the instructions of the Government, the ends of justice would be suftkitntly met if they were directed to abandon the departmental proceedings and warned against romplying with the said instructions. It was contended on behalf of the appellants that the circular letter, fairly construed, did not impose any absolute ban but merely impoocd an obligation on a Government servant to exhaust his departmental remedies

before taking recourse to a court of law and as such did not constitute an interference with the course of justice.

Jleld, (per S. K.

Das and Subba Rao, JJ.), that any conduct which interferes with or prejudices parties litigant during the litigation amounts to contempt of Court. The question is not whether the action in fact interfered with but whether it had a tendency to interfere with the due course of justice. There was no doubt_ that the proceedings initiated in the prcJen: case by the appellants on the basis of the circular letter had only one tendency, namely, to coerce the respondent to withdraw the pending suit or not to press it.

The appellants must be held guilty of contempt of court, and it would be no defence to say that they were merely carrying out executive directions contained in the circular letter.

The question at issue was not whether the circular letter was valid in the abs tract, but whether the action taken against the respondent on the basis of the circular letter at a time when the suit was pending amounted to interference with the due course of justice.

Shankar Lal Sharma v. M. S. Bisht, A. I. R. 1956 All. 160, referred to.

S.S. Roy v. State of Orissa, A.I.R. 1960 S. C. 190 and Webster v. Bakewell Rural District Council, L. R. 1916 1 Ch.

~00, held inapplicable.

Per Dayal, J .-1 here could be no doubt that pressure put on a party to a pending litigation to act in a particular way would amount to contempt of court, but the initiation of the proceedings by the appellants revealed no such conduct.

The charge-sheet did not indicate that the departmental

proedings were i~ tended to put pressure on the respondent to withdraw the smt. The appellant• who were doing their duty under the circular letter, the validity of which was not in question, could not be held to be guilty of contempt of Court.

Oheriyan Joseph v. Dr. Jamea Kalacherry, A.I.R. 1952 Trav. Co.· 75, approved.

Shankar Lal Sharma v. M. S. Bisht, A.LR. 1956 All. 160, considered.

Perera v. The King, 1951 W.N. 208, Riz1can-u/-lfosan

v. Tho State of Uttar Pradesh, [1953) S.C.R. 581 and Brahmti Prakash Sharma v. The SI.ate of Utt, ar Pradesh, (1953] S.C.R.

1169, referred to.

Pratap Singh

•• Gurbaksii 8int4

Pr•ep Bi•g~

G-ii~Sillfl~

840 SUPREME COURT REPORTS [1962] SUPP.

Departmental proceedings against Government servants for acts of indiscipline are as much in public interest as contempt proceeding• and, cons<quently, unle5' departmental action directly affects the c<>urse of judicial proceedin~ It cannot amount to contempt of Court.

Whether the depart mental action would tempt the respondent to withdraw the suit or deter other Government servants from filing similar suin would be considerations outside the scope of a contempt proceeding and, therefore, irretevant.

In re tlie South ShielM (Thames Street) Ckaranc. Order, 1931, ( 1932) 172 L.TJ. 76, referred to.

In re William 1'homaa Shipping Co. ll.W. Dillon & Sons ltd. v. The Company, In re Sir Robert Tlwmaa, ( 1930) 2 Ch.

D. 368, distinguished.

In the instant case the departmental enquiry against the respondent did not constitute a pa1allel enquiry and tend to interfere with the course of the litigation pending in Court and therefore, no contempt of court had been committed.

Saib'<l Kumar Gupta v. B. K. Sen, (1961] 3 S.C.R. 460, applied.

CRIMINAL APPELLATE JuRISDIL'TIO~: Criminal Appeals Nos. 128 and 1:29 of 1959.

Appeals from the judgment and order datod November 5, 1958, of the Punjab High Court in Cr. 0. Nos. 20 and 27 of 1957.

B. K. Khanna, K. L. Hathi and P. D. Me:non, for the appella11ts.

Bhagat Singh ChaU'la and K. R. ChouJ<lhuri, for the respondents.

1962. January :rn. 'Ibe Judgment of Das and Subb!l Rao JJ, was delivered by Das, J. Dayal, J. delivered a separate Judgment.

Du J.

S. K. DAS, J.-These are two appeals on certificates granted by the Punjab High Court under Art. 134(1Xc) of the Constitution. They have been heard together and this judgment will govern them both.

The appeals are from the judgment and order of the ea.id High Court dated November 5, 1958, by which it found tho two appellants guilty of an

offence punishable under s. 3 of the Contempt of the Courts Act, 1952 (XXXCI of 1952) and directed them, by way of punishment, to abandon the departmental proceedings which had been taken against the respondent Gurbakeh Singh for an alleged contravention of the instructic•n contained in a circular letter dated January 25, 1953, issued by the Chief Secretary to the Punjab Government and warned them against complying with the said instructions.

The relevant facts are these. Gurbaksh Singh respondeni in the two appeals, was a Forester in the Punja.b Forest Department. Pratap Singh, appellant in Criminal Appeal no. 128 of 1959, was, at the relevant time, Chief Conservator of Forests, Punjab. Bachan Singh, appellant in the other appeal, was Divisional Forest Officer, Amritsar.

It appears that in the year 1950 the respondent supplied three lacs cubic feet of timber to the various Ordnance Depots under orders of the then Chief Conservator of .Forests. In 1954, the then Chief Conservator of Forests sent a letter to the respondent alleging that there had been a short supply in the timber which was sent to the Ordnance Depot at Chhoke and that there had been a loss of Rs. 11,366 to the Government. By an order conveyed in a letter dated July 16, 1956, the State Government directed the Chief Conservator of Forests to recover ten per cent. of the loss i.e.

Rs. 1,136 and odd annas from the respondent Gurbaksh Singh. The letter further stated that the recovery sought to be made from the salary of the respondent was in accordance with the rules contained in the Punjab Civil Services (Pu.nishment and Appeal) Rules, 1952, and that an opportunity had already been given to the Forester to submit an explanation and the order for recovery was made after considering his explanation. Gurbaksh l::lingh then instituted a suit in the Court of the

Pratr.p Singli ,._ Gurlaksh Singh

DasJ.

Pr•tq Sirrgh .. lilltbdib Smgh

Das .1.

842 SUPREME COURT REPORTS [1962) SUPP.

Senior Subordinate Judge, Amritsar for a deola.ration-that the order of recovery made against him

was void and without effect. The suit was folio wed by a petition under Art. 2~6 of the Constitu tion which was, however, dismi88ed .by the Punjab High Court on May 2U, l!l5'i.

When the summons in the suit instituted in the Court of the Senior Subordinate Judge, Amrit&r, was served on the State Government, the lJnder Secretary to the said Government in the Forest and Animal Husbandry Departments, sent a memorandum to the Chief Conservator of Forests in which the attention of the latter was drawn to a circular letter issued by the Chief Secretary on , January 25, l!J53.

The letter ba.s bc•n quoted in extenso in the judgment of the High Court and was in these terms :

"I am directed to say that tho question of Government servants having recourse to Courts of law in matt..rs arising out of their employmPnt or conditions of service hill! been engaging tho attRntion of Government for somo time past and it is considered necessary to lay down that in the matter of grievances arising out of a Government servant's em ploymont or conditions of service the proper course is to seek redrcSB from the appropriate departmental and Governmental authorities.

Any attempt by a Government senant to seek a decision on such issues in a Court of law (even in caacs where such a remedy is !Pgally .dmissible) without first exhausting the normal official channels of rcdreSB, can only bu regarded as contrary to official propriety und subversive of good discipline and may well justify the initiation of disciplinary action against t.he Government ervant. These instructions may, therefore, be brought to the notice of all Government servants of your department/office."

The Under Secretary sa.id in his memorandum tha.t a.a the respondent had not exhausted the depa.rtmenta.l remedies open to him before going to a court of la.w, he had rendered himself lia.ble to disciplinary action as per the instructions contained

in the circular letter. The Under Secretary then sa.id :

"It may please be intimated immediately as to what a.ction you propose to take against him." On receipt of this memorandum, the appellant Pratap Singh sent a copy thereof to the Conservator of Forests, South Circle, and directed tha.t the respondent should be proceeded with in accordance with the instructions aforesaid and a copy of the proceedings recorded and orders passed in the oa.se should be forwarded to him. On receipt of the sa.id orders, the Conservator of Forests, South Circle, passed an office order appointing Bacha.n Singh, appellant in Criminal Appea.l No. 129 of 1959, to hold an enquiry against the respondent for ha.ving contravened the instructions contained in the circular letter quoted above. Ba.cha.n Singh then drew up a charge-sheet against the respondent and a.sked him to submit an explanation in writing within 15 da.ys. In the charge-sheet it wa.s stated tha.t the respondent had gone to a court oflaw before exhausting all his departmental remedies and this was contrary to official propriety a.nd subversive of good discipline. The charge-sheet appears to ha.ve been drawn up on or a.bout August 30, 1957. Then, on September 14,11157, the respondent made an application to the High Court to the effect tha.t the two a.ppellants ha.d committed contempt of court punishable under s. 3 of the Contempt of Courts Act, 1952.

In that petition the allegation made wa.s tha.t appellant Pratap Singh had framed and got served a. charge-sheet on the respondent and appellant Bachan Singh wa.s holding an enquiry into the

Prolop Singh

•• flurbaksh Singh

Da, J.

P"Jtop Singh

Grabak.slt ingh

D., J.

E44 SUPREME COURT REPOR'fS [196~] SUPP.

charge, which was tJntamount to interfPring with the legal rights of the respondent to seek redress in a court of law and also amounted to exerting

presure upon him with the intent of rcstr&ining him from preBBing his suit. This, it was atated, amount.eel to an obstruction of the judicial proceRS and interfered with the course of justice in respect of the suit which was pending in tho court of the iit>nior Subordinate Judge, Amritsar, a court subordinate to the High Court. Thll High Court issued notice to the appellants and after hearing the parties came to the conclu. sion that though the appellants were elea.rly guilty of an olfc11ce punishable under s. 3 of the Coutempt of Courts Act, 1952, they were merely endeavouring to comply with the instructions of the Government, the legality or propriety of which they had no reason to doubt. In that view of the matter, the High Court t>xpresscd the view that the ends of ju,; tico would be amply met if the two appellants wtre directed to ab1ndon tho depiirtmcntal proceed. ingd "hich had been taken against the respondent and furthermore, if they were warned against complying with the instructions contained in tho circular letter id8ued by tho State Government.

On behalf of the appellants three points have been urged iu support of the contntion that they were nut guilty of the offence of contempt of court.

Firstly, it has been argued that the petition da.te<l September 14, Hl57, by which the rospondentpraycd

for action against tho appellants for contempt of court, stated that the contempt was in respect of the High Court in which a writ ptitiou under Art. 226 of the Conotitution had been filed.

That writ petition, it fa pointed out, wa.s dismissed on :llay 20

J 057 and thu charge-sheet against the respondent was drawn up on August 30, 191i7, i.e., about three months after the writ petition in the High Court had been clismissed.

The argument before us is that whcro the cont('mpt is criminal in its nature, he

specific offence chargrd should be distinctly stated and each step in the proceedings to punish it should be fairly, properly and strictly taken. It is argued that the application on behalf of the respondent made a grievance of interference with the due course of justice in the matter of the writ petition filed in the High Court, but the High Court held the appellants guilty of a different offence, namely, of interference with the course of justice in respect of the suit pending in the Court of the Senior Subordinate Judge, Amri_tsar.

The second point which has been taken on behalf of the appellants is that on a fair construction of the terms of the circular letter on which the two appellants took action against. the respondent, it should be held that it did not constitute an interference with the course of justice, inasmuch as it did not impose any absolute ban on a Government servant to have recourse to a court of law for the redress of his grievanc;-s arising out of his employment or conditions of his service, but merely imposed an obligation on a Government servant to exhaust his departmental remedies before taking recourse to a court of law. It has been argued that on this view of the circular letter, the action ta.ken by the appellants against the respor. dent did not constitute an interference with the course of justice in respect of the suit which was pending in the court of the Senior Subordinate Judge, Amritsar.

Thirdly, it has been contended that in any view of the matter appellant Pratap Singh, who took no action beyond endorsing the memorandum of the Under Secretary was not guilty of contempt of court.

We propose now to deal with these three points in the order in which we have stated them.

The first point can be very shortly disposed of. It appears that the respondent filed two petitions on September 14. 1957, in the Punjab High Conrtwhich gave rise to two eases nos. 20 and 27 of 1957. These

two cases were heard together.

In the petitioa

1.962

Pratap Singh

Gurbaks'1 Sing\

Das J.

P., etq S"'9A

OwWsh Singh

DosJ.

846 SUPREME OOURT REPORT.:> [1962] SUPP.

which gave rise to case no. 20 of 1957, a grievance wa.e made of interference with the coul'tle of justioe in the High Court in respect of the writ petition which waa dismissed by the High Court on May 20,

1957. But in the second petition filed on the same day, which gave rise to case no. 27 of 1957, the respondent clearly stated as follows in para. 9 of hie petition :

"Previously the petitioner filed a petition under Section 3 of the Contempt of Courts Act in this Hon'ble Court in respect of this very charge-sheet on the ground that this chargesheet related to the writ petition that had bet>n filed by the petitioner (Civil Writ no. 528 of 1956).

Now. however, the respondents are taking up the plea that the ehargesheet ( annexure 'A') is not in respect of the writ petition filed in the High Court but concerns the suit which has been filed by the petitioner and which is awaiting decision in the Court of the Subordinate Judge at Amritsar." It is clear, therefore, that the High Court had before it two petitions against the appellants, in one of which a grievance 'll as made of interference with the course of justice in resvect of the writ petition and in the other a grievance was made of interference with the course of justice in respect of the snit which waa awaiting decision in the court of the Senior Subordinete Judge, Amritsar. The respondent further stated that "by forcing and coercing him to withdraw hie snit or otherwise not to pl'l!B8 it" the appellants were obstructing the course of justice ann had, therefore, committed contempt of court punishable under e. 3 of the Contempt of Courts Act, 1952.

In view of heee allegations in the eecond petition filed on September 14, 1957, the first point urged on behalf oft.lie appellants must be overruled.

We now come to the second point which is of a more substantial nature. We have already quoted

the terms of the circular letter dated January 25,

1953. There was some argument before us as to whether the said circular letter contained executive instructions only or laid down a rule as to a condition of service. Our attention was dra'm to some institutions or departments of Government, where a rule in similar terms la\d down as one of the conditions of service that it is improper for a Government servant to take recourse to a court of law before he has exhausted the normal official channels of redress. Learned Advocates for the parties were, however, agreed that no rule laying down the couditions of service of Government servants serving in the department to which the respondent belonged imposed an obligation similar to that imposed by the circular letter. We have, therefore, proceeded in this case on the footing that the circular letter contained executive instructions only and did not embody a rule governing the conditions of service. Therefore we have not thought it necessary to consider what the position would be if such a rule were made a condition of employment for certain Government servants. Other considerations would then arise such as, the authority of the rule-making power to make such & rule, and we must make it clear that we are expressing no opinion on thoae other con.- siderations.

Assuming that the circular letter contained certain exeautive instructions what then ls the position? It should perhaps be made clear at the very outset that the question before us is not so m"Qch the validity of the circular letter in the abstract, but the propriety of the action taken against the respondent on the basis of the circular letter at a time when his suit was awaiting decision in the court of the Senior Subordinate Judge at Amritsar.

It must not, however, be assumed that we are holding the circular letter to be valid in the sense that compliance with it will, in no circumstances, amount to contempt of court. We do n.:>t come to any such

Pralap Singh

Gurbaksh Sing\

DasJ.

Pratop Singh

G11tba/c1h Sing%

DasJ.

848 SUPREME OOURT REPORTS [1962] SUPP.

conclusion. The a.rgument before us is that the circula.r letter did not impose a.n a.bsolutc ba.n on a.

Government serva.nt seeking rcdrese of his grieva.nccs a.rising out of his employment or service conditions in a. court of law ; it is au bmitted that all that it did was to ask Government serva.nts to exhaust first the normal Official channels of redress before vroceeding t0 a court of law. The emphasis, it is stated, is on propriety and discipline in the conduct of a Government servant ; and it has been submitted that judged from that point of view the circular letter cannot be said to constitute an interference with the course of justice in a.ny court of law. Theo retica.lly and in the abstract, this ma.y be true; and if the circular letter merely 111oys down that Ordinarily

a Government servant should exhaust his dcpa.rtmental remedies before going to a court of law, no objection can be taken to it. Speaking generally, a Government servant does not ordinarily go to court unless a"ld until he fails to get what he considers to be justice from the departmental authoritifJ8.

But we have to considllr in this ca.sea somewhat diffc. rent problem, namely, the action taken against the respondent during a pending litigation, as though going to a court of law before exhausting depart. mental remedies rn'USt in all cases be visited with punishment.

What, after all, is contempt of court? "To speak generally, contempt of court may be said to be constituted by any conduct that tends to bring the authority and adruinistra.tion of the law into dis respect or disregard, or to interfere with or prejudice pa.rtiee litiga.nt or their witnessea during the litigation." (Oswald's Contempt of Court, 3rd Edition, page 6.) We are concemcrl in the pref!{lnt case with the scond part, namely, "to interfere with or prej11dice pa.rties litigant during the litigation". In the case under our consideration the respondent had instituted a suit in the court of the Senior Subordinate Judge, Amritsar,

in respect of his grievance that a certain sum of money was being illegally deducted from his salary.

On behalf of the respondent it was alleged that he had no further departmental remedies to exhaust, inasmuch as the order by which a part of his sal&ry was being deducted was a final order made by the Punjab Government after considering the respondent's explanation. On behalf of the appellants it has been contended that the respondent had still a further remedy by way of an appe&l to the Governor. That is a matter with which we are not really concerned, as it relates to the question whether the respondent had or had not violated the terms of the circular letter. We are concerned with the action that was taken against the respondent on the footing, right or wrong, that he had violated the instructions of the circular letter. His suit was pending in the court of thfl Senior Subordinate Judge, Amritsar. When the summons in the suit was served on the Government, the Under Secretary to Government, drew the attention of one of the appellants to the circular letter and asked the latter to intimate to Government what action he proposed to take against the reepondent. Appellant Prat&p Singh then forwarded the memor&ndum of the Under Secretary to the Conservator of Forests, South Circle, &lid in hill forwarding endorsement Prat&p Singh directed. that the respondent Should he proceeded with in accordance with the instructions in the cironl&r letter and that a oopy of the proceedings recorded and orders passed should be forwarded . to him. It appears, there- :t:ore, that appellant Part&p Singh w.as 11ot merely content with forwarding the memorandum of the Under Secretarv. He directed his 8Ubordinate

officer to take ation airainst the respondent. In accordance with that direction a proceeding was drawn up against the respondent and the appellant Bachan Singh was asked to enquire into it.

The appellant Bachan Singh then drew up a

196$

i'Nt.; Sinth

v. a.,.,., .. sin th

DoJ.

Pru.pSU.fh

GurW.Ji Sinth

Do1J.

850 SUPREME COURT REPORTS [1962] SUPP.

charge-ehi>et and in that charge-sheet it was stated that the respondent had gone to a court of law before exhausting all his departmental remedies. What would be the effect of these proceedings on the suit which wa.s pending in the court of the Senior Subordinate Judge, Amrit sar ? From the practical point of view, the insti tution of the proceedings at a. timo when the suit in the court of the Senior Subordinate Judge, Amrit:aar, was pending could only be to put pre88Ure on the respondent to withdraw his suit, or faoe the consequenoeR of disciplinary action. This, in our opinion, undoubtedly amounted to contempt of court. There are many ways of obstructing the Court and "any conduct by which the course of justice is perverted, either by a party or a atranger, is a contempt; thus the use of threats, by letter or otherwise, to a party while his suit is pending; or abusing a party in letters to persons likely to be witnesRes in the cause, have been held to be con tempts". (Oawald'a Contempt of Court, 3rd Edition, page 87). The question is not whether the action in fact interfered, but whether it had a tendency to interfere with the due course of justioe. The action taken in 'this e&11e against the respondent by way of a proceeding againat him ean, in our opinion, have only one tendency, namely, the tendency to coerce the respondent and force him to withdraw his suit or otherwise not press it. If that be the clear and unmistakable tendency of the prooeedings taken against the respondent, then there can be no doubt that in law the appellants have been guilty of contempt of court, even though they were merely carrying out th1> instruetions contained in the circular letter.

We have been referred to a large number of decisions dealing with various aspects of contempt of court. We consider it unneoell8&1"y to refer to them all, because it is clear to us that any conduct which interferes with or prejudices partiea litigant

2S.C.R.

SUPltEME COURT REPORTS

during the litigation is undoubtedly contempt of court. There is, however, one decision which is very much in point and to whir.h we must refer.

In Shanlcar Lal Sharma v. M. S. Bisht (1) in very similar circumstances it was held by the Allahabad High Court that if any kind of threat or any action which may amount to a threat is held out to a person who approached the Civil Courts for a redress of his grievances, with a view to induce him to forego the assistance of the Civil Courts, the action amounts to a contempt of eourt. In that case also an employee of the Public Works Department of Uttar Pradesh moved the High Court for the grant of a writ. While the writ petition was pending in the High Court the Chief Engineer, P.W.D., U. P., purporting to act in accordance with certain directions contained in a circular letter asked for an explanation from the emp

loyee as to why he has submitted a writ application to the High Court. The learned Judges c•xpressed the view that there was no doubt that the action taken by the Chief Engineer in accordance with the instructions contained in the circular letter amounted to a threat with a view to induce the employee to forego the assistance of the Civil Courts. An unqualified apology having been tendered in the case, no further action was taken. On behalf of the appellants reliance was placed on the decision of this Court in S. 8. Roy v. State of Orissa(').

That was a case iri which a First Class Magistrate misconceiving his powers and exercising a jurisdiction not vested in him by law and without any justifying circumstances made an order under s. 144, Code of Criminal Procedure, by hich a Civil Court peon was restrained from executing a warrant of arrest issued by an Additional Munsif in connection with the execution of a money decree; the Magistrate was not influenced by any extraneous consideration or dishonest motive in making the

(I) A.f.R. 1956 All. 160.

(2) A.J.R. 1960 S.C. 190.

Pratap SiaJh

Gurbash Sir.gh

Vas J.

1~2

Pr~ Si""h

Gwb.Wh Singh

DasJ.

852 SL"PREME COURT REPORTS [1962] SUPP.

order and it was held tha.t the Magistrate was not iruilty of contempt of the Court of the Additional Munsif, because there wa.s nothing to suggest a.ny wilful culpability on his part. We are unable t-0 agree with the learned Advocate for the Appel lants that the principle of that decision shonld apply to the present case. The appellants in the instant case were not judicial officers who mis conceiTed their powers. They were no doubt carrying out executive instructions given by their employer, but they carried out those instructions at a time when a. ci\'il suit was pending and they carried out the instructions in such a manner as to exert pressure on the reRpondent to withdraw the mit. That is the finding at which the High Court arrived and on that finding the appellants were clearly guilty of contempt of court.

The deciaion in W eb.ter v. Bakewell Rural Ditrid Cryuncil ( 1) on which also learned Advocate for the appellants relied is not in point. That was a case in which the yearly tenant of a cottage and land, adjoining a highway and farming part of a settled eRtate issued a writ against the local authority for an injunction to restrain an alleged trespass on his land ; the solicitor of the tenant for life wrote to the local authority with a view t-0 arrange the matter and at the Mme time wrote to the tenant that the tenant for life required him to withdraw the writ, and that, if he did not comply, his tenancy would be determined. It was held that the solicitor had not committed a. contempt of court. The decisitln proceeded on the footing that the tenant for life had the rig; ht to turn out the yearly tenant and there was nothing to prevent the tenant or life, who was the landlord, from exercising his legal rights if he did so honestly to protect the rights he had in the property.

"We have, therefore, come to the conclusion that the appellants were guilty of contempt of the

(I) (1916) I Cb. 300.

Court of the Senior Subordinate Judgo, Amritsar and in awarding the sentence the High Court correctly took into consideration the circumstance that the appt'llants were merely carrying out the instructions contained in tho circular letter. Thongh that circumstance does not afford a defence to the charge, it is undoubtedly a consideration relevant to the sentence.

As to the third point that appellant Pratap Singh took no action beyond endorsing the memorandum of the Under Secretary, we have already dealt with it and pointed out that he not merely endorsed the memorandum of the Under Secretary

but directed the Conservator of Forests, South Circle, to institute a proceeding against the respondent for having contravened the instructions contained in the circular letter.

This disposes of all the points urged on behalf of the appellants. In our opinion, there are no grounds for interference with the judgment and order of the High Court dated November 5, 1958.

Tlie appeals are accordingly dismissed.

RAGHUBAR DAYAL, J.-Ihave held the advantage of perusing the judgment of my learned brother, ::;. K. Das, J., but regret my inability to agree tha.t the appellants are guilty of contempt of

Court.

The facts leading to the conviction of the appellants in the two appeals, hu.ve been fully mentioned in the majority judgment and I need not repeat them here. For the purpose of these cases, I assume the validity of the 8ircular issued by the Government in 1953.

That has nut been challenged by the opposite p'l.rty. If an employee acts against the directions contained in the Circular, it is just and proper that ation be taken. If action is taken and that be considered per se to amount to the commission of contempt of Court, the directions in the Circular oan be disobeyed with impugnity and

/'Map SiJr&1'

GUtbaksh Singh

DasJ,

PraJap S i•11'

C111b<APi Singl

854 SUPREME COURT REPORTS [1962] SUPP.

the Circular, though valid, would remain a dea.d lotter. It would then be incongruent to hold that any action ta.ken in pmsuance of it would pe,. se amount to contempt of th-i Court to which the G9vernment servant had gone for adjudication.

Thero is nothing in the charge.sheet framed ag'l.inst the appellants by Bachn Singh, Divisional Forest Officer, which can amount to contempt of Court.

The Charge relates to misconduct and indiscipline.

The evidence in support of the charge is mentioned in the charge.sheet to be that Gurbaksh 8ingh hR.d gone to the Court oflaw before exhausting all the sources as ordered in the Circular and which was contrary to ofiicial propriety and thllt thereby ho IJad rendered himself liable to disciplinary action.

There was nothing in the description of the charge or in the description of the evidence in support of it, which, in any way, refer. red to the merits of tho case or directed Gurbaksh Singh to do, in connection with that case. For the purposes of the charge laid against him, the merits of the civil ca.se were irrelevant. The charge was with respect to misconduct and indiscipline which consisted simply in his going to Court without exhausting all the normal official channels of redress. Gurbaksh Singh ha.cl simply to point out that he had exhausted all the official channels open to him and that therefore, he ha.cl not acted in contravention of'the directions given in the Circular.

The charge-sheet did not, in any way, threaten Gurbaksh Singh with any consequences in view of his continuing his suit.

His continuing the suit will not be in contravention of the Circular and therefore, will not be misoonduct or indidCipline on account of his contravening the directions of the Circular. I am unable, therefore, to conclude from the Departmental charge-sheet against Gur baksh Singh during the pendenoy of his suit in Court that the Departmental prooeedingll were In

order to put pressure on him to withdraw his suit or face the consequences of disciplinary action.

Even ifGurbaksh Singh does not withdraw the suit, the basis of the charge against him would stand and he will have to meet .it.

There is no indication in the charge-sheet, or in any other circumstance, that in case he withdraws the suit the charge would be dropped. He committed the act of indiscipline and he has to answer for it if the Department considers it expedient to take Departmental action.

I do not dispute the legal proposition that if any pressure is put on a party in order to make him act in a particular manner with respect to pending litigation, that would amount to contempt of the Court in which the matter be pending. I however fail to ee any such conduct on the part of the appellants in the action taken by them against Gurbaksh Singh,

Reference may now be made to certain cases having a bearing on the question before us for de termination.

The cases reported as l1 rishikesh Sany al v.

A. P. Bagchi (1 ) and Radhey Lal v. Niranjan Nath (2) hold that a person does not commit contempt of Court if during the pendency ofa certain proceeding he takes recourse to other judicial proceedings open to him, even though the latter proceedings put the other party to loss, because everybody is entitled to take recourse to law.

It was held in Baldeo Sakai v. Shiva Datt (') that the plaintiff's son's serviJ:!g a notice on the defendant telling him that either he should pay damages for a defamatory statement about him in the written statement within a certain time or he would lJring action against him for defamation, did not coustitute contl'mpt of Court.

In Kamta Prasad v. Ram Agyan (')it was held that a party cannot be said to be interfering with

(11 J.L.R. 1!!40 All. 710.

(2) A.I.R. 1941 Ail. ~5.

(3) A.J.R. 1940 All. 114.

(4) l.L.R. 1950 All. 530.

Pralap S.i., h

Gurbaksh Sinzh

Raghubar Da.yal.J.

I Ht

,.,.,. s;.tfc

v. a ... ,.,,. sm1• ... l1i1r D4,'lel J •

856 SUPREME COURT REPORTS [11162] SUPP.

the course of justice and to be guilty of contempt of Court when he makes an offer for the settlement of the dispute between the parties out of Court and, as part of the settJ., ment, suggests that the pending

litigation .should be withdrawn and, failing it, threatens to take legal proceedings open to him under the law. Keliance w&a placed for thid view on the decision in Webster v. Bakewell Rural Districl, Cauncil (1).

The principle behind all these cases is that such action of the person which he takes in pursua.nce of his right to take legal action in a Court of law or in just making a demand on the other to make a.mends for his acts will not a.mount to interfering with the course of justice, even though that may reqniro some action on the part of the other party in connection with his own judicial proceeding, as a party is free to take action to enforce his legal rights.

The case reported as Shankar Lal Sharma v.

M. S. Bisht (') does go against the appellants. I however do not agree with the concluaion in that ease that the calling for an explanation from the employee as to why he had submitted a. writ application in the High Court, in contravention of oertain directions contained in the Government Circular

of 1952, waa an attempt to hold out a threat of Departmental action against him in order to induce him to withdraw the application ho had presented for the protection of his rights under the Constitution.

On the other hand, in the ca.ee reported as (J/ieriyan Josepli v. Dr. JameB ('), a. different view

was exprell8ed. Tho plaintiff instituted a suit for a declaration that a. certain resolution was not binding upon the church or the parish in 1vhioh he resided and for a permanent injunction to rostrain

(I) L.R. (1916) I Ch. 300.

(2) A.l.R. 1956 All. 160.

(3) A.I.R. 19~2 Trav. Co. 15, 16.

2 S.C.R.

SUPREME COUR'r REPOR'r3 857

the defendants from acting in pursuance of t.hat resolution. The Vicar of that church wa.s one of the defendants. The Bishop's letter to the plaintiff contained a threat to excommunicate him a.nd t') claim damages from him in case he did not with. draw his suit forthwith. The plaintiff was subse quently excommunicated. Thereafter, he applied for contempt of Court proceedings against the

B1hop and the Vicar, alleging that the letter and the excommunication were calculated to interfere and obstruct the course of justice, as their object was to cow him down into submission and to compel him under the threat of excommunication to abandon the suit which he had filed and which he wa.s entitled to prosecute. In considering the question, it was observed:

"On the other hand tbe contents of the letter indicate that it was conceived by res pondent 1 (the Bishop) and that he was acting in the exercise of his legitimate right of safeguarding the interests of the church. We are not prepared to assume as the petitioner's learned counsel wants us to assume that respondent 2 (the Vicar) was responsible for the despatch of this letter. He was legally bound to obey the commands of his Bishop and all that he did was to comply with the direction given to him by the Bishop in as innocuous

a manner as possible. Therefore, in our judgment, respondent 2 cannot be taken to task for obeying an order sent to him by respondent l."

On the question of the letter contempt of Court, it was said at same page:

amounting to the end of the

"The facts seem to us to be more similar to the case reportfld as Webster v. Bakewell Rural District Council (L.R. 1916 l Ch. 300).

There

p, tta/1 Singk

Guraksh SU., h

Raih•••• Doyal J.

195!

Pr•l4p Sinth

G fdha.bh S i"flh

858 SUPREME COURT REPORTS [1962] StTP,

it was held that the threat to assert one's legal rights againllt another if he chose to continue an action started by him, would not amount to contempt.

In the present case also the threat held out by respondent l wa.s that the petitioner had 11iready incurred a. censure by the church and that if he persisd in asserting his rights in the suit filed by him in the Court of the District Munsif of Alleppy, respondent I would exercise the lawful rigJi.t of excommunicating the petitioner for the wrongful act done by him."

The Vicar was not held guilty of contempt of Court.

I think in this ca.se the J udgea took a correct view of the matter.

The case before us is a still stronger case for holding tha.t no contempt of Court took place since the action taken against Gurbaksh Singh did no9 ask him to withdraw the suit he ha.d instituted.

The observations of the Privy Council in Pereru v. The King(') lea.d to tho same conclusion.

Mr. Perera, a member of the House of Representatives of Ceylon and i.s such a Visitor of the Jail, made certain remarks in the Visitor's Book, which wore considered to amount to contempt of court by the Supreme Court of Ceylon. On appeal, the Privy Council said.

"Their Lordships are satisfied that the order against the appellant ought not to have been made ....... But Mr. Perera., too, has rights that must be respected, and their

Lordships are unable to find any thing in hie cqnduct that comes withm the definition of contempt of court. Tha.t phrase has not lacked authoritative interpretation. There must be involvlld some •act done or writing published calcula.tod to bring a. court or a. Judge of the

(I) 1951 W.N. 208, <09.

• .....

court into contempt or to lower his authority'; or some thing 'calculated to obstruct or interfere with the due couree of justice or the lawful process of the court' : See, Reg. v. Gray (1900) 2 Q.B. 36.

What has been done here is not at all that kiud of thing. Mr. Perera was acting in good faith and in discharge of what he believed to be his duty as a member of the legislature.

His information was inaccurate, but he made no public use of it, contenting himself with entering his comment in the appropriate instrument, the visitors' hook, and writing to the responsible Minister. The words that he used made no direct reference to the Court, or to any judge of the court, or, indeed, to the course of justice, or to the process of the courts .......... Finally his criticism was honest criticism on a matter of public importance. 'Vhen these and no other are the circumstances that attend the action complained of there cannot be contempt of court."

It can be sid in the present case that the appellants acted in good faith and in dischuge of what they believed to be their duty as officers of Government to comply with the directions given in the Circular to which attention had been drawn by the Under Secretary to the Government, by his letter enquiring what action was proposed to be taken against Gurbaksh Singh.

The action taken was on the departmental basis. No publicity was given to it.

The words used in the charge made no reference to the merits of the case, to the judge or the Court

or to the course of justice or to the process of the Courts. The action was taken in the interest of discipline of the services and therefore in public interest.

f'ratap Singh

Gurbaksh Singh

Raghuhar DayaL J

Pralop Sin1h

Gw•.ksh Sinp

R~Dt(l.ZJ.

860 SUPREME COURT REPORTS [1962) SUPP.

In RizwanulHasan v. The St, ate of Uuar Pradesh{') this Court said.

"As observed by Rankin C.J., in Anantalal Singha v. tflJred Henry Wat.son (I.L.R. 58 Cal. 884, 895), the jurisdiction in contempt is not to be invoked unleSB there is real prejudice

which can Le regarded as a substantial inter ference with the due course of justice and that the purpose of tho court's action is a practical purpose and it is reasonably clear on the authorities that the court will not exercise ite jurisdiction upon a mere question of propriety." It follows that even if the action of the appellant& be considered to be improper that will not justify holding them guilty of ootempt of Court when their action in no way prejudiced the trial of the suit.

In Brahma Prakash Sharma v. The State of Uuar Prli('), it was stated :

"It would be only repeating what hall been said so often by various judges that the object of contempt proceedings is not to afford protection to judges personally from imputations to which they may be expoeed &11 individuals; it is intended to be a protection to the public whose intereste would be very muoh affected if by the act or conduct of any pany, the authority of the court is lowered and the

sense of confidence whioh people have in the administration of justice by it is weakened." Contempt of Court proceedings a.re in public interest and so a.re Departmental prooeedioga against Government employees for any a.ct of indieoipline

committed by them.

It is therefore only when the Departmental action directly a.ff'ectl the course of the judicial proceeding that it O&D

(I) [1953) S.C.R. 581. 588. 121 [1953J s.c.R. 1169, 1176.

amount to interfering with the course of justice and oonsequently, to contempt of Court. If it does not do so, there can be no case of contempt of Court.

In Re the South Shields (Thames Street) Clearance Order, 1931(1) certain articles were published

suggesting that the appellants bv their appeal were keeping the tenants ont of the new houses, that they were hindering the progress of housing in the borough and causing the corporation to lose the rent of the new houses. It was argued that the articles constituted contempt not as affecting the mind of the Court that would hear the appeal, but as tending to deter the appellants and other from coming to the Court and presenting their an-peal and that the articles were thus calculated to a1fect the course of justice. It was held that the rule ought not to be granted as the issue of the. writ of attachment in the case would be an extension of the jurisdiction of the court on contempt beyond anythin~ that could justify it. It is to be noticed that in that case nothing was ea.id on the merits of the matter for consideration in the appeal, though referer..ce was made to the adverse results of the pendency of the appeal on the tenants, the corporation and the progress of hollSing and it was said that in view of the publicit, y of such contemplated adverse effects, the apf)ellants

and other persons might be deterred from taking similar matters to Court and therefore those articles ea.use obstruotio::i. to the course of justice. Such a

contention was not accepted. as it would be extending the jurisdiction of the Court in matters of contempt. Such a possiblitiy of a certain act with respect to the conduct of a party or a few persons interested in similar cause in future was held not to amount to contempt of Court.

I have already stated that no threat is held out to Gurbakeh Singh in the contents of the charge-1heet with respect to withdrawing or not

(I) ( 1932) 173 L.T.J. 76.

hata~ Sing~

•• Gurbaksh Sirigh

haJap Singh

v, GurbaA•h SiAgli

Rogh .tar DCJ.J J,

- 862 SUPREME COURT REPOR'lli [1002] SUPP.

withdrawing the suit. Any consideration that to avoid Departmental action he be tempted to withdraw the suit or that other Government servants

would be deterred from instituting similar suits, will be beyond the scope of considerations f'or the determination of the question whether the appellants committed contempt of Court or not.

In Jn re The Willi.am Thonw.a Shipping Co. H. W.

Dill<m & Sona. Ltd. v. The Company, In re Sir Robert

Thama~ (' ) it u:as said :

"I think that to publish injurious misrepresentations directed against a party to the action, especially when they are holding up that party to hatred or contempt, is liable to affect the courae of justice, because it may in the case of' a plaintiff, cause him to discontinue the aotion from fear of public dislike, or it may cauee the defendant to come to a compromise which he otherwise would not come to, for a. like reason."

This would make publication of injurious misrepresentations against a party to an action, contempt of Court, if they hacl a tendency to cause that party to come to a oomnromiee which he otherwise would not come to. Tho facta of the present case do not in any way correspond to thiR nase even if on his own, Gur bakah Singh, to avoid Departmental action, discontinues the suit, as the action taken does not in any way make such injurious misreprrsentation of the party, if any, aa would hold him up to hatred or contempt.

Laatly, I may refer to tbe judgment of this Court in Saibal Kamar Gupta v. B. K. Sen ('}.

Proccedinizs in revision against the Sessions .Judge's order for further enquiry on a complaint filed hy one Bimala Kanta Rov Choudhury against B. K.

Sen, under s. 497, I. P. C., were pending in the

(I) ( 1930) 2 Ch. D. 368, 376. 121 [I961J'.3 s.c.R. 460.

High Court. B. K. Sen held the office of Commissioner of the Calcutta Corporation. The Corporation appointed a Special Committee of three Councillors to enquire into the allegations levelled against certain officials, including B. K. Sen, of the Corporation, who were alleged to have been taking advantage of their office in carrying on business in their own names. The Special Committee issued a questionnaire to B. K. Sen. Some of the questions related to his giving .appointments to certain persons who were related to certain witnesses in the case, his giving appointments to certain persons and condoning the punishment previously inflicted on one person, as they were helping him in continuing the defence in that case and t.o his being instrl:imental in securing the appointment of another probable prosecution witness. The High Court considered this action of the Special Committee to amount to gross . contempt of Court and convicted the members of the

Special Committee for it. On appeal to this Court, the order was set aside. This Court said in the majority judgment.

"The reoord does not establish th!!.t at any time the appellant had made comments on the case under s. 497, Indian Penal Code, pending against B. K. Sen or in respect of any matter pending in connection with that case in the Calcutta High Court .... The questionnaire nowhere suggested that B. K. Sen had made these appointments in order to suborn prosecution witnesses in that case or that he had made the appointments with a view to preventing Bimala Kanta Roy Choudhury from producing witnesses to prove his case against B. K. Sen .... The Special Committee had embarked upon an enquiry on the directions of the Corporation in order .to discover malpractice on the part of the Corporation's servants. Malpractices of the

196Z

P.ratap Singh

Gurboksh Singh

11,.P,.ha• n.,.1 J.

l ...

....... 9"'*' J.

864 SUPREME OOU!tT REPORTS [1962) SUPP.

part of r. 1ervant of the Corporation would presumably include making unworthyap)Jointment.e. The uoertainment of the motive for the appointment would be merely incidental to the ma.in purpote of the enquiry. It would

be diffieult to conclude therefrom that the Special Committee were holdiDg a pMallel enquiry on matters pending decision by a oourt of law aDd tha.t thereby their a.otion tended to interfere with the COUl'le of jUMtice." The eame, with eater emphaeis, oan be ea.id in

the pl'f'l!ent cue. The DepArtmental enquiry against Gurba.kah Singh did not tend to interfere with the oourse of justice. Bachan Singh, appellant, wat conduoting the enquiry under the orders of Prata.p Singh. Pra.t.ap Singh directed the enquiry under orders from Government. Neither of them wou1d commit oontempt of Court in discharging his duty.

I .am therefore of opinion tha.t the fa.eta of the ca.se do not make out that the appellants, by their alleged oonduot, committed contempt of Court. I would therefore allow their appeals.

BY CoUBT : In aooordanoe with the opini<1n of the majority, these appeals are diBIDil!Btld.

Appeals dismissed.

GlJRBAKSH SINGH

S. K. DAs

K. St:BBA RAo

DAYAL, JJ.

s. 3

Contempt of Couru Act, 1952

(1961] 3 S.C.R. 460

Art. 134(1Xc)

s. 3

Contempt of the Courts Act, 1952

Art. 2

s. 3

Contempt of Courts Act, 1952

s. 3

Coutempt of Courts Act, 1952

Art. 226

Section 3

Contempt of Courts Act

Contempt of Courts Act, 1952

S. 8

s. 144

Code of Criminal Procedure

s. 497

s. 497

Indian Penal Code