JUDGMENT
B.C. Patel, C.J.
1. The learned Single Judge on 11.09.2003, in a contempt proceeding, passed an order. The relevant portion reads as under:
“Mr. Saini, learned counsel for the petitioners submits that there has not been complete compliance with the said judgment, inasmuch as the petitioners have been promoted to the post of Deputy Assessor and Collector on adhoc basis with effect from 27.7.1995. Reliance is placed on the penultimate sentence of the Order extracted above. However, there was no absolute direction passed by the Hon’ble Single Judge in respect of promotion to Assistant Commissioner/Deputy Assessor and Collector. It would not be proper to go into this issue in Contempt Proceedings, even if it is more than plausible that the contention of Mr. Saini, learned counsel for the petitioners, is correct. In respect of future promotions the petitioners have their remedy.
If so advised, the petitioners may also agitate the application of F.R. 17 to restrict the financial benefits.
Since there has now been compliance with the Judgment dated 29.9.2000 this petition stands disposed of with costs of Rs. 7,500/-. Costs be paid by the respondents to the petitioner within six weeks. Notice of Contempt stands discharged, and the petition is disposed of.”
2. It is clear that no case was made out. Notice of contempt was discharged. Following the Supreme Court decision of the three learned Judges in the case of Baradakanta Mishra v Mr. Justice Gatikrushna Mishra, Chief Justice of the Orissa High Court, in the case of Laxmi Narayan vs DDA (Contempt Appeal (C) 11/2004 decided on 12.07.2004) we have taken the view that, in such a situation, no appeal would lie under Section 19 of the Contempt of Courts Act, 1971 as there is no decision of the High Court in exercise of its jurisdiction to punish for contempt. The Supreme Court in the aforesaid case held as under:
“The exercise of contempt jurisdiction being a matter entirely between the Court and the alleged contemner, the Court, though moved by motion or reference, may in its discretion, decline to exercise its jurisdiction for contempt. It is only when the Court decides to take action and initiates a proceeding for contempt that it assumes jurisdiction to punish for contempt. The exercise of the jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt, whether suo motu or on a motion or a reference. That is why the terminous a quo for the period of limitation provided in Section 20 is the date when a proceeding for contempt is initiated by the Court. Where the Court rejects a motion or a reference and declines to initiate a proceeding for contempt, it refuses to assume or exercise jurisdiction to punish for contempt and such a decision cannot be regarded as a decision in the exercise of its jurisdiction to punish for contempt. Such a decision would not, therefore, fall within the opening words of Section 19, sub-section (1) and no appeal would lie against it as of right under that provision. This of course does not mean that there is no remedy available where the High Court on an erroneous view of the law or unreasonably and perversely refuses to take action for contempt on a motion or a reference. Though no appeal lies under Section 19, sub-section (1) as of right against such order or decision of the High Court, the Advocate General or any other person who has with the consent in writing of the Advocate General moved the High Court can always come to this Court by a petition for special leave to appeal and the power of this court to interfere with such order or decision in the exercise of its extraordinary jurisdiction under Article 136 is unfettered. This Court can always in suitable cases set right any order or decision of the High Court refusing to take action for contempt against the alleged contemner, if the larger interests of administration of justice so require.”
(underlining added)
3. The learned counsel submitted that in view of the decision of the Supreme Court in the case of R.N. Day v Bhagyabati Pramanik & Others , the appeal shall be maintainable. However in para 13, the court pointed out that “in the present proceedings the question whether appeal under Section 19 is maintainable or not is not required to be decided finally as, in our view, facts of this case are grossly inadequate and the contempt proceedings were not required to be initiated at all.” As such, this decision is of no help to the appellant. In any case, we do not find any observations contrary to the decision of the Supreme Court in the case of Baradakanta Mishra (supra).
4. Mr Saini, the learned counsel for the petitioner, next stated that in view of the supreme Court decision in the case of Purshotam Dass Goel v Hon’ble Mr. Justice B.S. Dhillon & Others 1978 SCC (Cri) 195, the appeal is maintainable. We feel that this case also does not support the contention of Mr Saini. In that case, the court pointed out that the appeal does not lie as a matter of right against mere initiation of proceedings for contempt by issuance of notice. In the instant case, the alleged contemners have been discharged. In the Supreme Court decision in the case of Purshotam Dass Goel (supra) the question was whether the appeal would be maintainable against an interim order or not? The Supreme Court pointed out in Purshotam Dass Goel’s case in para 3 which is as under:
“In our considered judgment, an order merely initiating the proceeding without anything further, does not decide anything against the alleged contemner and cannot be appealed against as a matter of right under Section 19. In a given case special leave may be granted under Article 136 of the Constitution from an order initiating the proceeding. But that is entirely a different matter. What we are deciding in this case is that the present appeal filed under Section 19(1) of the Act does not lie and is incompetent.”
The court has further observed in para 4 at page 198 as under:
“We find some support to the view expressed by us above from the decision of this Court in Barada Kanta Mishra v Orissa High Court1, where it has been held that no appeal lies to this Court under Section 19 of the Act from an order rejecting the prayer of the alleged contemner for hearing the case piecemeal.”