JUDGMENT
S.N. Jha, C.J.
1. This appeal, purportedly under Section 19(1) of the Contempt of Courts Act, is directed against the common order of the learned single Judge in COA (SW) No. 1-C/2003 and COA (SW) No. 2-C/2003. The relevant part of the order is as under :
“From the above facts, it is apparent that the directions of the Court passed in SWP No.934/95 and other petitions have not been complied with. Prima facie case of contempt is made out. Registry is directed to frame the rule against the respondents, namely,
They are hereby directed to appear before this Court and to explain why they be not punished for violation of the Court order. They may also file their reply to this show cause notice within three weeks. List thereafter.”
2. The appellants herein are two of the six alleged contemners against whom notice has been issued. They are sought to be proceeded against as the then Principal Secretary, Finance Department and Director, Accounts and Treasuries.
3. A preliminary objection was raised to the maintainability of the appeal on the ground that the appeal under Section 19(1) of the Contempt of Courts Act lies only against an order of punishment, the order being interlocutory — asking the appellants to file show cause, does not fall within the ambit of appellate jurisdiction under Section 19(1) of the Act. Hearing of the case was postponed to enable counsel for the parties to make submissions on the point of maintainability, and on the adjourned date of hearing they were heard at length.
4. Mr. A. H. Qazi, learned Additional Advocate General appearing for the appellants submitted that the appellants had put in statement of facts and placed their case before the learned single Judge after considering which the learned Judge recorded the findings and framed the rule. In the circumstances it cannot be said to be an order simpliciter directing the appellants to show cause.
5. The submission, according to us, is devoid of any merit. Though it is not the requirement of law to issue any notice to the alleged contemner to show cause as to why contempt proceedings be not initiated against him, and it is open to the Court, in the facts and circumstances of the particular case, to issue notice against the proposed punishment, more often than not, the Court issues notice against initiation of proceeding. Such a course is taken to enable the alleged contemner(s) to implement the Court’s order and thereby purge himself of the possible contempt. Where upon consideration of the show cause, which the alleged contemner(s) may file, the Court is of the view that the acts of commission or omission make out prima facie case of contempt notice may be issued to show cause why he should not be punished for committing contempt of Court. It is well known that every case of non-implementation of the order does not amount to contempt unless non-implementation is deliberate and wilful on the part of the person(s) concerned. The finding, if any, while issuing such show cause notice therefore cannot be said to be a concluded finding on the point. If we may say so, where such finding is not recorded regarding prima facie case, the orders some times comes in under challenge on the ground that the order is non-speaking and passed without application of mind.
6. Mr. Qazi attempted to take us through the factual aspects of the case. He submitted that the connected writ petitions giving rise to the contempt petitions had arisen from selection for appointment to the post of Accounts Assistants in the J & K Subordinate Accounts Service. The Government of Jammu and Kashmir has constituted Jammu and Kashmir State Service Selection Board for making selection for appointment to various non-gazetted posts in the State. As and when vacancies occur in a Government department, they are referred to the Selection Board which advertises the vacancies and makes the selection. On receipt of recommendation from the Board, the concerned department issues appointment order in favour of the selected candidates. In the instant case, 529 vacancies on the post of Accounts Assistants were referred to the Board. Out of 426 candidates recommended in the open merit category, 44 did not join (for training) and accordingly appointments orders were not issued to them. Writ petitions came to be filed in both Srinagar wing and Jammu wing of this Court. The writ petitions at Srinagar wing were taken up earlier in point of time and disposed of on 12-11-1997 with consent of the writ petitioners in view of the stand of the Selection Board of the effect that a Committee will be constituted to consider the cases of the petitioners for selection against the left-over vacancies. The petition at Jammu, SWP No. 934/1995 also was disposed of later in the same terms on 2-4-1998. According to the appellants, fresh recommendations were sent by the Selection Board with respect to left over vacancies and appointments were made. However, contempt petitions were filed alleging violation of the Court’s order. Various orders came to be passed in the contempt petitions. Finally on 25-7-2000 the earlier order dated 2-4-1998 (supra) (by which the writ petition, that is, SWP No. 934/1995 was disposed of) was recalled and the petitioners were directed to add the persons appointed as respondents. SWP No. 934/1995 along with connected contempt petitions was finally disposed of on 23-11-2000. The learned Judge held that the process and manner adopted by the Selection Board was in contravention of the Articles 14 and 16 of the Constitution of India inasmuch as only the persons who figured as writ petitioners were considered, and candidates who had higher merit were not considered at all. The Selection Board was directed to examine the merit of the candidates at the time of initial selection and fill the posts within one month from the date of production of a copy of the judgment in the Board. The learned Judge observed :
“In case this is not done, the petitioners in this writ petition and other writ petitions which came to be decided and regarding which contempt petitions are pending would be entitled to appointment and requisite appointment letters would be issued to them”
7. The State of Jammu and Kashmir as well as State Service Selection Recruitment Board filed letters patent appeals before the Division Bench which were dismissed on 12-4-2001. The special leave petition also was dismissed by the Supreme Court on 25-11-2002. The person contempt petitions were filed thereafter alleging non-implementation of the Court’s order.
8. The stand of the appellants broadly stated is two fold — (a) that the appellants were appointing authority and not selecting authority. The selecting authority being the Service Selection Recruitment Board, without recommendations of the Board they could not make any appointment. As in the instant case, the respondents were not recommended by the Selection Board, the appellants could not have appointed them, and therefore, they cannot be held guilty of contempt for non-implementation, (b) that in any case, 529 vacancies advertised in the year 1991 stood filled up by reasons of appointment made pursuant to the recommendations of the Selection Board.
9. We have referred to the facts of the case at some length and also noticed the stand of the appellants in view of the repealed submissions of Mr. Qazi that the learned single Judge has recorded findings without appreciating the factual background of the case. It was submitted, with emphasis, that the appellants herein stand on a distinct footing, from other alleged contemners, as they could have made appointments only if there was any recommendation in favour of the writ/contempt petitioners by the Selection Board; on their own they could not make any appointment, and therefore whole exercise so far as they are concerned, is misconceived and the proceeding is not maintainable. This aspect of the case, does not appeal to have been argued before the learned single Judge. As seen above, by the order under appeal, the appellants among other have simply been directed to appear before the Court and show cause as to they be not punished for violation of the Court’s order within three weeks. In our opinion, without saying any thing else, it was/is open to the appellants to satisfy the Court that no case of contempt in the facts and circumstance of the case is made out against them.
10. Be that as it may, the moot question for the present is whether the appeal against the order in question is maintainable under Section 19(1) of the Contempt of Courts Act. So far as relevant, Section 19(1) of the Act provides :
“An appeal shall lie as of right from any order or decision of a High Court in the exercise of its jurisdiction to punish for contempt –”
The words “any order” at the first instance seem to suggest that appeal against any order including interlocutory order or the order by which the proceeding is initiated would be maintainable. In State of Maharashtra v. Mahboob S. Allibhoy (1996) 4 SCC 411 : (1996 Cri LJ 2879), however, the Supreme Court observed that the words “any order” has to be read with the expression ‘decision’ used in the sub-section, which the High Court passes in exercise of its jurisdiction to punish for contempt. The relevant observations may usefully be quoted as under (at p. 2880 of Cri LJ) :
“The words “any order” has to be read with the expression ‘decision’ used in the sub-section which the High Court passes in exercise of its jurisdiction to punish for contempt. “Any order” is not independent of the expression ‘decision’. They have been put in an alternative form saying ‘order’ or ‘decision’. In either case, it must be in the nature of punishment for contempt. So construed an appeal cannot lie under Sub-section (1) of Section 19 against an interlocutory order passed in a proceeding for contempt by the High Court………..”
Earlier, in the case of Purshotam Dass Goel v. Hon’ble Mr. Justice B. S. Dhillon (1978) 2 SCC 370 : (1978 Cri LJ 772), the Supreme Court had observed (at p. 773 of Cri LJ) :
“The order or decision, appealed against under Section 19 must be such that it decides some bone of contention raised before the High Court affecting the right of the party aggrieved. Mere initiation of a proceeding for contempt by the issuance of the notice on the prima facie view that the case is a fit one for drawing up the proceedings, does not decide any such question………….. In our considered judgment, an order merely initiating the proceeding without anything further, does not decide anything against the alleged contemnor and cannot be appealed against as a matter of right under Section 19…………”
11. The case of Barada Kant Mishra v. Orissa High Court (1977) 3 SCC 345 : (1976 Cri LJ 944), also came in for reference. The appeal in that case had arisen from an order declining to decide the question of maintainability of the contempt proceeding. Refusing to entertain the appeal the Supreme Court observed (at p. 944 of Cri LJ) :
“Only those orders or decisions in which some point is decided or finding is given in the exercise of jurisdiction by the High Court to punish for contempt, are appealable under Section 19 of the Contempt of Courts Act, 1971. The order in question is not such an order or decision. It is an interlocutory order pertaining purely to the procedure of the Court. All that the order in question says is that all the points arising in the case, including the one of maintainability of the proceedings, would be heard together………..”
We fail to appreciate as to how this case lends any help to the appellants on the point of maintainability of the appeal.
12. In D. N. Taneja v. Bhajan Lal, (1988) 3 SCC 26, the Supreme Court observed that the right of appeal is a creature of the statute and the question whether there is a right of appeal or not will have to be considered on an interpretation of the provision of the statute and not on the ground of propriety or any other consideration. Dwelling upon the scope of Section 19(1) the Court observed (at p. 30).
“…………. an appeal will lie under Section 19(1) of the Act only when the High Court makes an order or decision in exercise of its jurisdiction to punish for contempt. It is submitted on behalf of the respondent and, in our opinion rightly, that the High Court exercises its jurisdiction or power as conferred on it by Article 215 of the Constitution when it imposes a punishment for contempt. When the High Court does not impose any punishment on the alleged contemnor, the High Court does not exercise its Jurisdiction or power to punish for contempt. When no punishment is imposed by the High Court, it is difficult to say that the High Court has exercised its jurisdiction or power as conferred on it by Article 215 of the Constitution.”
13. Reference may also be made to a decision of the Himachal Pradesh High Court in L. D. Khanna v. Chohan Humtamaki (India) Pvt. Ltd., Chambaghat, 1977 Cri LJ 1530. The appeal in that case had arisen from an order declining to discharge the notice issued by the learned single Judge. The Division Bench (presided over by R. S. Pathak, C.J. as his lordship then was) traced the legislative history of Section 19(1) of the Contempt of Courts Act, 1971. The Court noticed the report of the Sanyal Committee (Shri H. N. Sanyal, ex-Solicitor General of India) constituted by the Government of India to frame a more comprehensive legislation on the subject. The Committee was of the view that the discretionary right of appeal (as provided in the 1952 Contempt of Courts Act) should be replaced by an absolute right of appeal, and accordingly suggested (at p. 1532 of Cri LJ) :
“The right of appeal should be available in all cases and we accordingly recommend that against an order of the single Judge punishing for contempt the appeal should lie”
The relevant observations of the Himachal Pradesh High Court (supra) may be quoted as under :
“That the appeal under Section 19 is contemplated only against an order or decision of the High Court in disposing of a contempt proceeding is apparent from the intrinsic evidence provided by Section 19 itself………… Upon the aforesaid considerations, we are of the opinion that an appeal lies under Sub-section (1) of Section 19 against an order or decision of a High Court concluding the contempt proceedings, and not against an order declining to discharge the notice issued by the Court to the alleged contemnor”
14. Reference may also be made on a decision of this Court in Brig. Tripat Singh v. Manzoor Brick Kiln, 2000 SLJ 207, wherein it was observed as under :–
“The ld. single Judge of this Court has not decided that appellant is guilty for committing the contempt of Court but in terms of the impugned order he was given a chance to show compliance to the judgment and in case of failure he has to explain his position on the next date of hearing. This is not an order/decision of the ld. single Judge passed under Section 19 of the Contempt of Courts Act when right of appeal is available to the appellant. In view of the specific statutory right guaranteed under the Contempt of Courts Act to file an appeal against the kind of order/decision no aid can be sought from L.P.A. provisions to make the appeal maintainable when the order is interlocutory one. Viewing the controversy in its true perspective the appeal is found not maintainable which is dismissed”
15. Mr. Qazi placed reliance on Mohd. Shafi Pandit v. Mohd Yousuf Magray, 2003 (3) JKJ 313. He made particular reference to the observations to the effect that fresh directions cannot be given in contempt proceedings as passing of such direction is not part of the proceedings or orders under law of contempt. Mr. Qazi also placed reliance on J. S. Parihar v. Ganpat Duggar, AIR 1997 SC 113 : (1996) 6 SCC 291 and R. N. Dey v. Bhagyabati Pramanik (2000) 4 SCC 400, and Mohd Shaft Pandit v. Mohd Yousuf Margrey, 2003 (3) JKJ 313.
16. In the case of J. S. Parihar v. Ganpat Duggar (AIR 1997 SC 113) (supra), after observing that no appeal lies to the Division Bench under Section 19 of the Contempt of Courts Act against the findings of the learned single Judge that the respondents had not wilfully disobeyed the order because there is no order punishing respondents for violation of the order of the Court, the Supreme Court further observed that the decision of the Government pursuant to the Court’s order may or may not be in conformity with the direction but that only gives the person a fresh cause of action to challenge the decision in an appropriate forum, and that cannot said to be violations of the Court’s order, and therefore fresh direction could not be issued by the learned single Judge re-exercising the power of judicial review in contempt proceedings to redraw the seniority list. The relevant observations may be quoted as under (at. p. 114) :–
“One there is an order passed by the Government on the basis of the directions issued by the Court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions but that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. However, that cannot be considered to be wilful violation of the order. After re-exercising the judicial review in contempt proceedings, a fresh direction by the single Judge could not be given to redraw the seniority list as in doing so the single Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act.”
17. In case of R. N. Dey v. Bhagyabati Pramanik (supra) the Supreme Court observed that the weapon of contempt cannot be used for purpose of executing a decree or implementing an order for which law provides appropriate procedure. The order in that case initiating the proceeding “without discharging the rule issued in the proceedings” was held to be a decision or order in exercise of Court’s jurisdiction to punish for contempt, and the appeal against the order was held to be maintainable.”
18. In Mohd. Shafi Pandit v. Mohd. Yousuf Magrey (supra), relying on J. S. Parihar’s case (supra), a Division Bench of this Court held that fresh directions cannot be given in contempt proceedings, and in such a case, the appeal may be entertained as a letters patent appeal because such an order would be deemed to have been passed in writ proceedings.
19. We do not wish to make any comment on merit of the pleas of the appellants. The judgment and order of learned single Judge dated 23-11-2000 in SWP No. 934/ 1995 and connected cases has attained finality with the dismissal of the letters patent appeal, and the special leave petition by the Supreme Court. Whether, and if so to what extent, the appellants have contributed to non-implementation of the Court’s order is for the learned single Judge to consider at the first instance. As observed above, the main plea of the appellants that without any recommendation by the Selection Body they could not appoint the respondents, does not appear to have been raised before the learned single Judge. Further, whether the case comes within the ambit of the decision/ observations in the case of J. S. Parihar v. Ganpat Duggar (supra), is also to be considered by the learned single Judge at the first instance. The appellants, as seen above, have been asked to submit show cause why they be not punished for violation of the Court’s order. It is open to them to satisfy the leaned single Judge that there was/is no willful disobedience of the Court’s order by them. Since no final decision has been taken by the learned single Judge to punish the appellants for committing contempt of Court, the appeal, in our opinion, is not maintainable.
20. In the result, the appeal is dismissed with observations as hereinabove.