CASE NO.: Appeal (civil) 1727 of 2002 PETITIONER: Midnapore Peoples' Co-op. Bank Ltd. & Ors. RESPONDENT: Chunilal Nanda & Ors. DATE OF JUDGMENT: 25/05/2006 BENCH: B. P. Singh & R. V. Raveendran JUDGMENT:
J U D G M E N T
With
SLP (C) Nos. 13045-46/2003
RAVEENDRAN, J.
This civil appeal by special leave is against the judgment dated
26.2.2001 in M.A.T. No.4075 of 1998 passed by the High Court of Calcutta.
2. The first respondent was working as Secretary of the Midnapore
Peoples’ Co-op. Bank Ltd. [Appellant No.1 herein, for short the ‘Bank’].
Appellants 2 and 3 are respectively the Chairman and Secretary-in-Charge
of the first appellant bank. The first respondent was kept under suspension
pending initiation of disciplinary proceedings, in pursuance of a resolution
of the Board of Directors of the Bank dated 16.4.1994. The respondent filed
a writ petition [C.O. No. 8789(W) of 1995] challenging the suspension, inter
alia on the ground that charge-sheet had not been issued. On 27.6.1995, the
said writ petition was disposed of recording the submission that the bank
was issuing a charge-sheet. The Bank was directed to deliver a copy of the
charge-sheet and pay the arrears of subsistence allowance within one week.
The first respondent was directed to file his written statement within 10
days. The Enquiry Officer was directed to conclude the enquiry within a
period of three months from the date of communication of the order subject
to first respondent rendering full cooperation for the conduct of the
disciplinary proceedings.
3. A charge-sheet dated 1.7.1995 was issued to the first respondent
containing nine charges. The first Respondent filed his written statement on
17.7.1995. The Enquiry Officer completed the enquiry and submitted his
report dated 14.9.1995 finding the first respondent guilty of all charges. A
copy of the said report was furnished to the first respondent under cover of
bank’s letter dated 25.9.1995 giving him an opportunity to submit his
representation.
4. At that stage, the first respondent filed another writ petition [CO No.
20008 (W) of 1995] before the High Court for quashing the enquiry
proceedings alleging bias against the Enquiry Officer (Asit Mahapatra). A
learned single Judge of the Calcutta High Court allowed the said writ
petition by order dated 9.4.1997 in the following manner :
(i) The enquiry proceedings and the consequential action taken by
the Bank were set aside.
(ii) The Chairman of the Bank was directed to appoint someone
who is not a member of the Bank’s Board of Directors as
Enquiry Officer by requesting the Registrar, Cooperative
Societies to nominate a suitable officer preferably of the rank of
Asst. Registrar of Cooperative Societies, to be the Enquiry
Officer. A time bound schedule was indicated for appointment
of the Enquiry Officer.
(iii) The Enquiry Officer to be so appointed was required to conduct
enquiry de novo by observing all the principles of natural
justice and the applicable rules and regulations and submit his
report within four months from the date of first sitting subject to
first respondent fully cooperating in the enquiry. The
Disciplinary Authority was directed to take suitable action on
the basis of such Report.
(iv) The Bank was directed to pay proper subsistence allowance to
the first respondent during the period of suspension.
5. On the Bank’s request, the Assistant Registrar of Cooperative
Societies, Midnapore-I appointed Sri H. K. Maiti, Cooperative
Development Officer, as Enquiry Officer on 9.5.1997. Subsequently, the
Assistant Registrar by communication dated 3.10.1997 revoked the
appointment of Sri H.K. Maiti as Enquiry Officer being of the view that the
tenor of the order of the High Court did not permit the appointment of Sri
H.K. Maiti who was only a Development Officer, as the Enquiry Officer.
Thereafter, the Bank wrote to the Registrar of Cooperative Societies on
24.10.1997 to nominate an officer of the rank of an Assistant Registrar for
being appointed as Enquiry Officer. In view of the delay, the Bank also
approached the High Court for suitable extension of time. On 19.12.1997,
the court extended the time for appointment of Enquiry Officer by two
weeks. By order dated 5.1.1998, the Registrar nominated Sri S. K. Das,
Assistant Registrar of Co-operative Societies, Midnapore-I, for being
appointed as the Enquiry Officer. He was accordingly appointed as the
Enquiry Officer. He started a fresh enquiry.
6. As the enquiry was not completed within four months from the date of
first sitting, the first respondent moved a contempt application [CPAN 2233
of 1997]. The Chairman of the Bank, the Enquiry Officer (S. K. Das), the
previous Enquiry Officer (Sri H. K. Maiti) and the Secretary-in-Charge of
the Bank were impleaded eo nomine as respondents 1 to 4 in the said
contempt petition. The learned Single Judge summoned the enquiry records
from the Enquiry Officer. On perusing the records, he was of the view that
the Enquiry Officer had not proceeded with due diligence. Therefore, the
learned Single Judge made an order dated 20.11.1998, the operative portion
of which is extracted below :
“1. Let a Rule be issued against the respondent no.2 Sri S. K. Das,
Assistant Registrar, Cooperative Societies, Midnapore I, (charging him ?)
with committing contempt of this Court (and ?) for directing him to show
cause as to why he should not be punished for committing contempt. The
Respondent no. 2 shall remain present personally on all the dates of
hearing in this Court. He shall file his affidavit in opposition within two
weeks from today.
2. Since the respondent no. 2 has by his conduct, disqualified himself
to be the Enquiry Officer, I direct that he shall cease to be the Enquiry
Officer. It shall be open to the respondents, however, in the light of the
aforesaid two orders of the Court, to appoint any other person as the
Enquiry Officer and to proceed with the matter once again in the light of
the aforesaid directions.
3. The petitioner shall immediately and forthwith be reinstated in the
service of the respondent Bank and shall deemed to be in their service all
through. He shall not be prevented in any manner from discharging his
duties and shall be paid all arrears of salary within four weeks from today.
Let the contempt application appear two weeks hence. The suspension
order shall be immediately deemed to have been revoked.”
7. Feeling aggrieved, respondents 1 and 4 in the contempt petition
(Chairman and Secretary-in-Charge of the Bank) filed M.A.T. No.4075 of
1998. A Division Bench of the High Court dismissed the said appeal as not
maintainable by the impugned judgment dated 26.2.2001, on the following
two grounds :
(i) The order of the learned Single Judge did not punish any
contemnor. Therefore, the appeal could not be entertained under
section 19 of the Contempt of Courts Act, 1971 which provided for
appeals only against orders punishing a contemnor.
(ii) The appeal did not satisfy the requirements of clause 15 of the
Letters Patent, and, therefore, could not be entertained as a Letters
Patent Appeal.
While so dismissing the appeal, the Division Bench directed the appellants
therein to forthwith implement the order of the learned Single Judge. The
said judgment is challenged in this civil appeal by special leave. This Court,
while granting leave on 25.2.2002, stayed the operation of the order dated
26.2.2001 in M.A.T. No.4075 of 1998, as also the further proceedings in the
contempt petition (CPA No.2233/1997) with a condition that the Enquiry
Officer appointed in pursuance of the order dated 9.4.1997 shall complete
the enquiry within six months.
8. In view of the observations of the Division Bench that the appeal by
the Chairman and Secretary-in-Charge eo nomine was not maintainable, and
to avoid any technical objections, the Bank and its Board of Directors filed
M.A.T. No.1102 of 2001 on 4.4.2001 challenging the order dated
20.11.1998 along with an application for condonation of delay. A Division
Bench of the High Court dismissed the application for condonation of delay
by merely stating that the delay of 728 days had not been properly
explained, and consequently dismissed the appeal. The said order
dismissing the application under section 5 of Limitation Act, 1963 and
consequently, dismissing the appeal, is challenged in SLP(C) Nos.13045-46
of 2003.
9. On the aforesaid facts and the contentions urged, the following
questions arise for consideration :
(i) Where the High Court, in a contempt proceedings, renders a
decision on the merits of a dispute between the parties, either by an
interlocutory order or final judgment, whether it is appealable
under section 19 of the Contempt of Courts Act, 1971 ? If not,
what is the remedy of the person aggrieved ?
(ii) Where such a decision on merits, is rendered by an interlocutory
order of a learned Single Judge, whether an intra-court appeal is
available under clause 15 of the Letters Patent ?
(iii) In a contempt proceeding initiated by a delinquent employee
(against the Enquiry Officer as also the Chairman and Secretary
in-charge of the employer-Bank), complaining of disobedience of
an order directing completion of the enquiry in a time bound
schedule, whether the court can direct (a) that the employer shall
reinstate the employee forthwith; (b) that the employee shall not be
prevented from discharging his duties in any manner; (c) that the
employee shall be paid all arrears of salary; (d) that the Enquiry
Officer shall cease to be the Enquiry Officer and the employer
shall appoint a fresh Enquiry Officer; and (e) that the suspension
shall be deemed to have been revoked ?
Re : Point No. (i) :
10. Section 19 of the Contempt of Courts Act, 1971 [‘CC Act’ for short]
provides for appeals. Relevant portion of sub-section (1) thereof is extracted
below :
(1) An appeal shall lie as of right from any order or decision of High Court
in the exercise of its jurisdiction to punish for contempt –
(a) where the order or decision is that of a single Judge,
to a Bench of not less than two Judges of the Court:
(b) where the order or decision is that of a Bench, to the
Supreme Court:
The scope of Section 19 has been considered by this Court in Baradakanta
Mishra v. Justice Gatikrushna Misra [AIR 1974 SC 2255], Purushotam
Dass Goel v. Justice B.S. Dhillon [AIR 1978 SC 1014], Union of India v.
Mario Cabral e Sa [AIR 1982 SC 691], D.N. Taneja v. Bhajan Lal [1988 (3)
SCC 26], State of Maharashtra v. Mahboob S. Allibhoy [1996 (4) SCC 411]
and J.S. Parihar v. Ganpat Duggar [1996 (6) SCC 291]. These cases dealt
with orders refusing to initiate contempt proceedings or initiating contempt
proceedings or acquitting/exonerating the contemnor or dropping the
proceedings for contempt. In all these cases, it was held that an appeal was
not maintainable under section 19 of CC Act as the said Section only
provided for an appeal in respect of orders punishing for contempt.
10.1) In Baradakanta Mishra, a three Judge Bench of this Court held that
an order declining to initiate a proceeding for contempt amounts to refusal to
assume or exercise jurisdiction to punish for contempt and therefore, such a
decision cannot be regarded as a decision in the exercise of its jurisdiction to
punish for contempt. The question as to whether an appeal would be
maintainable under section 19 where the court initiates a proceeding for
contempt but after due consideration and hearing finds the alleged
contemnor not guilty of contempt, or having found him guilty declines to
punish him, was left open.
10.2) In Purushotam Dass Goel (supra), certain aspects of Section 19 were
left open. This relevant portion is extracted below :
The (contempt) proceeding is initiated under Section 17 by issuance of a
notice. Thereafter, there may be many interlocutory orders passed in the
said proceeding by the High Court. It could not be the intention of the
legislature to provide for an appeal to this Court as a matter of right from
each and every such order made by the High Court. The order or the
decision must be such that it decides some bone of contention raised
before the High Court affecting the right of the party aggrieved. Mere
initiation of a proceeding for contempt by the issuance of the notice on the
prima facie view that the case is a fit one for drawing up the proceeding,
does not decide any question… It is neither possible, nor advisable,
to make an exhaustive list of the type of orders which may be appealable
to this Court under Section 19. A final order, surely, will be appealable.
If the alleged contemnor in response to the notice appears before the High
Court and asks it to drop the proceeding on the ground of its being barred
under Section 20 of the Act but the High Court holds that the proceeding
is not barred, it may well be that an appeal would lie to this Court under
Section 19 from such an order although the proceeding has remained
pending in the High Court. We are not called upon to express our final
opinion in regard to such an order, but we merely mention this type of
order by way of an example to show that even orders made at some
intermediate stage in the proceeding may be appealable under Section 19.”
10.3) While Baradakanda Mishra and Purushotam Das left open the
question whether an appeal under section 19 would be maintainable in
certain areas, in D. N. Taneja (supra), a three-Judge Bench of this Court,
categorically held that appeals under section 19 would lie only against the
orders punishing the contemnor for contempt and not any other order passed
in contempt proceedings. We extract below the relevant portions from the
said decision :
“The right of appeal will be available under sub-section (1) of Section 19
only against any decision or order of a High Court passed in the exercise
of its jurisdiction to punish for contempt. When the High Court
does not impose any punishment on the alleged contemnor, the High Court
does not exercise its jurisdiction or power to punish for contempt. The
jurisdiction of the High Court is to punish. When no punishment is
imposed by the High Court, it is difficult to say that the High Court
has exercised its jurisdiction or power as conferred on it by Article
215 of the Constitution.
It is true that in considering a question whether the alleged contemnor is
guilty of contempt or not, the court hears the parties and considers the
materials produced before it and, if necessary, examines witnesses and,
thereafter, passes an order either acquitting or punishing him for contempt.
When the High Court acquits the contemnor, the High Court does not
exercise its jurisdiction for contempt, for such exercise will mean that the
High Court should act in a particular manner, that is to say, by imposing
punishment for contempt. So long as no punishment is imposed by the
High Court, the High Court cannot be said to be exercising its jurisdiction
or power to punish for contempt under Article 215 of the Constitution.
The aggrieved party under section 19(1) can only be the contemnor who
has been punished for contempt of court.”
[Emphasis supplied]
10.4) In Mahboob S. Allibhoy (supra), this Court reiterated the above
position thus :
“On a plain reading Section 19 provides that an appeal shall lie as of right
from any order or decision of the High Court in exercise of its jurisdiction
to punish for contempt. In other words, if the High Court passes an order
in exercise of its jurisdiction to punish any person for contempt of court,
then only an appeal shall be maintainable under sub-section (1) of Section
19 of the Act. As sub-section (1) of Section 19 provides that an appeal
shall lie as of right from any order, an impression is created that an appeal
has been provided under the said sub-section against any order passed by
the High Court while exercising the jurisdiction of contempt proceedings.
The words ‘any order’ has to be read with the expression ‘decision’ used in
said 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. If the expression ‘any order’ is read independently of the
“decision” then an appeal shall lie under sub-section (I) of Section 19 even
against any interlocutory order passed in a proceeding for contempt by the
High Court which shall lead to a ridiculous result.”
10.5) J. S. Parihar vs. Ganpat Duggar (supra) is nearest to this case, on
facts. A contempt petition was filed alleging that the seniority list drawn
pursuant to the order of the High Court was not in conformity with the said
order. The High Court found it to be so, but held that the disobedience was
not willful and, therefore, did not punish for contempt. But the High Court
gave a direction to redraw the seniority list. The State Government
challenged the said direction in an intra court appeal. The Division Bench
held that the appeal was not maintainable under section 19 of the CC Act,
but was maintainable as an intra-court appeal as the direction issued by the
single Judge would be a “judgment” within the meaning of that expression
in section 18 of Rajasthan High Court Ordinance. Accordingly, the Division
Bench set aside the direction of the learned Single Judge to re-do the list.
The said order was challenged before this Court. This Court confirmed the
decision of the Division Bench and held as follows :
“Therefore, an appeal would lie under section 19 when an order in
exercise of the jurisdiction of the High Court punishing the contemnor has
been passed. In this case, the finding was that the respondents had not
wilfully disobeyed the order. So there is no order punishing the respondent
for violation of the orders of the High Court. Accordingly, an appeal under
section 19 would not lie.
The question is whether seniority list is open to review in the contempt
proceedings to find out, whether it is in conformity with-the directions
issued by the earlier Benches. It is seen that once there is an order passed
by the Government on the basis of the directions issued by the Court, there
arises a fresh cause of act on 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. But that cannot be considered to be the wilful violation of
the order. After re-exercising the judicial review in contempt proceedings,
a fresh direction by the learned single Judge cannot be given to redraw the
seniority list. In other words, the learned Judge was exercising the
jurisdiction to consider the matter on merits in the contempt proceedings.
It would not be permissible .”
11. The position emerging from these decisions, in regard to appeals
against orders in contempt proceedings may be summarized thus :
I. An appeal under section 19 is maintainable only against
an order or decision of the High Court passed in exercise of its
jurisdiction to punish for contempt, that is, an order imposing
punishment for contempt.
II. Neither an order declining to initiate proceedings for
contempt, nor an order initiating proceedings for contempt nor
an order dropping the proceedings for contempt nor an order
acquitting or exonerating the contemnor, is appealable under
Section 19 of the CC Act. In special circumstances, they may
be open to challenge under Article 136 of the Constitution.
III. In a proceeding for contempt, the High Court can decide
whether any contempt of court has been committed, and if so,
what should be the punishment and matters incidental thereto.
In such a proceeding, it is not appropriate to adjudicate or
decide any issue relating to the merits of the dispute between
the parties.
IV. Any direction issued or decision made by the High Court
on the merits of a dispute between the parties, will not be in the
exercise of ‘jurisdiction to punish for contempt’ and therefore,
not appealable under section 19 of CC Act. The only exception
is where such direction or decision is incidental to or
inextricably connected with the order punishing for contempt,
in which event the appeal under section 19 of the Act, can also
encompass the incidental or inextricably connected directions.
V. If the High Court, for whatsoever reason, decides an
issue or makes any direction, relating to the merits of the
dispute between the parties, in a contempt proceedings, the
aggrieved person is not without remedy. Such an order is open
to challenge in an intra-court appeal (if the order was of a
learned Single Judge and there is a provision for an intra-court
appeal), or by seeking special leave to appeal under Article 136
of the Constitution of India (in other cases).
The first point is answered accordingly.
Re : Point No. (ii) :
12. We will next consider as to whether an intra-court appeal under
clause 15 of the Letters Patent was available against the interlocutory
order dated 20.11.1998 containing the directions on merits of the
dispute. Clause 15 of the Letters Patent provides for an appeal from a
‘judgment’ of a single Judge in exercise of original jurisdiction, to a
Division Bench. In Shah Babulal Khimji v. Jayaben D. Kania & Anr.
[AIR 1981 SC 1786], the scope of clause 15 of the Letters Patent was
considered. This Court held :
“The concept of a judgment as defined by the Code of Civil
Procedure seems to be rather narrow and the limitations engrafted
by sub-section (2) of section 2 cannot be physically imported into
the definition of the word ‘judgment’ as used in Cl. 15 of the
Letters Patent because the Letters Patent has advisedly not used the
term ‘order’ or ‘decree’ anywhere. The intention, therefore, of the
givers of the Letters Patent was that the word ‘judgment’ should
receive a much wider and more liberal interpretation than the word
‘judgment’ used in the Code of Civil Procedure. At the same time,
it cannot be said that any order passed by a trial Judge would
amount to a judgment; otherwise there will be no end to the
number of orders which would be appealable under the Letters
Patent. It seems to us that the word ‘judgment’ has undoubtedly a
concept of finality in a broader and not a narrower sense. In other
words, a judgment can be of three kinds (1) A final Judgment
.. (2) A preliminary Judgment .. (3) Intermediary or
interlocutory judgment – Most of the interlocutory orders which
contain the quality of finality are clearly specified in clauses (a) to
(w) of Order 43, Rule 1 and have already been held by us to be
judgments within the meaning of the Letters Patent and, therefore,
appealable. There may also be interlocutory orders which are not
covered by Order 43, Rule 1 but which also possess the
characteristics and trappings of finality in that, the orders may
adversely affect a valuable right of the party or decide an important
aspect of the trial in an ancillary proceedings. Before such an order
can be a judgment the adverse effect on the party concerned must
be direct and immediate rather than indirect or remote
in other words every interlocutory order cannot be regarded as a
judgment but only those orders would be judgments which decide
matters of moment or affect vital and valuable rights of the parties
and which work serious injustice to the party concerned.”
“.any discretion exercised or routine orders passed by the
trial Judge in the course of the suit which may cause some
inconvenience or, to some extent, prejudice one party or the other
cannot be treated as a judgment, otherwise the appellate court
(Division Bench) will be flooded with appeals from all kinds of
orders passed by the trial Judge. .. the interlocutory
order in order to be a judgment must contain the traits and
trappings of finality either when the order decides the questions in
controversy in an ancillary proceeding or in the suit itself or in a
part of the proceedings.”
14. Clause 10 of the Letters Patent of Patna High Court
(corresponding to clause 15 of Letters Patent of Calcutta High Court)
was considered by this Court in Central Mine Planning and Design
Institute Ltd. v. Union of India [2001 (2) SCC 588]. In that case, the
award of an Industrial Tribunal directing reinstatement and payment
of partial backwages was challenged in a writ petition before the High
Court of Patna. The workman claimed interim relief under section 17-
B of the Industrial Disputes Act, 1947. The learned Single Judge
directed the employer to pay full wages to the workman during the
pendency of the writ petition. That was challenged in a Letters Patent
Appeal. The Division Bench held that the Letters Patent Appeal was
not maintainable as the order directing payment under section 17-B of
the I.D. Act was not a ‘judgment’. Reversing the said decision, this
Court held that an interlocutory order passed in a writ proceeding
directing payment under section 17B of Industrial Disputes Act, 1947
was a final determination affecting the vital and valuable rights and
obligations of parties and, therefore, would fall under the category of
‘intermediary or interlocutory judgment’ against which a Letters
Patent Appeal would lie. The following observations are relevant :
“It is now well settled that the definition of “judgment” in section
2(9) of the Code of Civil Procedure has no application to Letters
Patent .., it follows that to determine the
question whether an interlocutory order passed by one Judge of a
High Court falls within the meaning of ‘judgment’ for purposes of
Letters Patent the test is : Whether the order is a final
determination affecting vital and valuable rights and obligations of
the parties concerned. This has to be ascertained on the facts of
each case.”
15. The above principle was reiterated in Mithailal Dalsangar
Singh vs. Annabai Devram Kini [2003 (10) SCC 691] and Subal Paul
vs. Malina Paul [2003 (10) SCC 361]. In the latter case, this Court
held :
“While determining the question as regards clause 15 of the Letters Patent,
the court is required to see as to whether the order sought to be appealed
against is a judgment within the meaning thereof or not. Once it is held
that irrespective of the nature of the order, meaning thereby whether
interlocutory or final, a judgment has been rendered, clause 15 of the
Letters Patent would be attracted. Clause 15 of the Letters Patent
confers a right of appeal on a litigant against any judgment passed under
any Act unless the same is expressly excluded. Clause 15 may be subject
to an Act but when it is not so subject to the special provision the power
and jurisdiction of the High Court under clause 15 to entertain any appeal
from a judgment would be effective.”
16. Interim orders/interlocutory orders passed during the pendency
of a case, fall under one or the other of the following categories :
(i) Orders which finally decide a question or issue in
controversy in the main case.
(ii) Orders which finally decide an issue which materially and
directly affects the final decision in the main case.
(iii) Orders which finally decide a collateral issue or question
which is not the subject matter of the main case.
(iv) Routine orders which are passed to facilitate the progress of
the case till its culmination in the final judgment.
(v) Orders which may cause some inconvenience or some
prejudice to a party, but which do not finally determine the
rights and obligations of the parties.
The term ‘judgment’ occurring in clause 15 of the Letters Patent will
take into its fold not only the judgments as defined in section 2(9)
CPC and orders enumerated in Order 43 Rule 1 of CPC, but also other
orders which, though may not finally and conclusively determine the
rights of parties with regard to all or any matters in controversy, may
have finality in regard to some collateral matter, which will affect the
vital and valuable rights and obligations of the parties. Interlocutory
orders which fall under categories (i) to (iii) above, are, therefore,
‘judgments’ for the purpose of filing appeals under the Letters Patent.
On the other hand, orders falling under categories (iv) and (v) are not
‘judgments’ for purpose of filing appeals provided under the Letters
Patent.
17. The next question is whether the appeal was not maintainable
because, it was filed by the Chairman and the Secretary-in-Charge of
the Bank eo nomine, and not by the “Bank” itself. The order dated
20.11.1998 against which the appeal was filed, was passed by the
learned single Judge in the course of contempt proceedings. The
Chairman and the Secretary-in-Charge were parties to such
proceedings having been impleaded eo nomine as respondents 1 and 4
respectively. The ‘Bank’ as such was not a party to the contempt
proceedings. The learned single Judge proceeded on the basis that the
Chairman and the Secretary-in-Charge represented the ‘Bank’ by
referring to them as ‘Respondent Bank’ and directing them to reinstate
the complainant (first respondent herein) and to pay all salary arrears
to him. If the Chairman and Secretary-in-Charge were considered as
representing the Bank for issuing such directions, certainly they could
file an appeal against such directions. The directions were issued to
them and they were the persons aggrieved.
18. The Division Bench, therefore, committed a serious and
obvious error in holding that the appeal [MAT 4075/1998] was not
maintainable under clause 15 of the Letters Patent. Though the order
of the learned Single Judge dated 20.11.1998, by which several
directions to the Bank with reference to first Respondent were issued,
is not a final ‘judgment’, it is an ‘interlocutory judgment’ which
finally decides several rights and obligations of the employee vis-`-vis
the employer and therefore, appealable under clause 15 of the Letters
Patent.
Re : Point No. (iii) :
19. As noticed above, by order dated 9.4.1997 in C.O.
No.200008(W)/1995, the first inquiry proceedings were set aside and
the Chairman of the Bank was directed to appoint an outsider,
preferably an officer from the Co-operative Department, as the
Enquiry Officer, with a further direction that such Enquiry Officer
should conduct the enquiry de novo, and submit the report within four
months (from the date of first sitting), and a direction to the first
respondent to fully co-operate in the enquiry. The time stipulated for
appointment of the Enquiry Officer was extended by two weeks on
19.12.1997. The new Enquiry Officer was appointed by the Registrar
of Co-operative Societies, on 5.1.1998. The inquiry was not
completed within four months and that led to the initiation of the
contempt proceedings by the employee (first respondent). The
Chairman of the Bank, the Enquiry Officer, the previous Enquiry
Officer (H. K. Maiti, whose appointment was revoked on 3.10.1997)
and the Secretary-in-Charge of the Bank were shown as
contemnors/respondents 1 to 4. As H.K. Maiti was not a party to the
writ petition, and as he did not conduct the enquiry, there was no
question of his disobeying any order. After perusing the records, the
court by order dated 20.11.1998 came to the conclusion that a prima
facie case was made out for issuing a show cause notice only against
Sri S.K. Das (Enquiry Officer). This meant that no case was made out
for issue of show cause notice to the Chairman and Secretary-in-
Charge of the Bank. In fact, it was not the case of the first respondent
that after the appointment of S.K. Das as Enquiry Officer, there was
any disobedience by the Bank.
20. In the circumstances, the court ought to have proceeded to
consider whether there was any wilful disobedience of the order dated
9.4.1997, on the part of S K Das and if so, punish him for contempt.
As S.K. Das was nowhere in the picture when the order dated
9.4.1997 was passed in the writ petition, and as he was appointed as
an independent Enquiry Officer only by an order dated 5.1.1988 and
as there was a complaint about the non-cooperation by the first
respondent, (delinquent employee), it is doubtful whether there was
any case for even issuing a show cause notice to him. Be that as it
may. We are not concerned with the issue of show cause notice to
S.K. Das in this appeal. What is relevant to be noticed is that the
learned Single Judge could not have made an order in the contempt
proceedings, that Sri S.K. Das had, by his conduct, disqualified
himself to be the Enquiry Officer and that he shall cease to be the
Enquiry Officer and that another Enquiry Officer shall be appointed.
21. There was also no justification for the further direction by the
learned Single Judge in the contempt proceedings, that too by an
interlocutory order, that the complainant should immediately and
forthwith be reinstated into the service of the Bank, and shall be
deemed to be in the service of the Bank all through, that the employee
shall not be prevented in any manner from discharging his duties and
that he shall be paid all arrears of salary within four weeks, and that
the suspension order shall be deemed to have been revoked. These
were totally outside the scope of the proceedings for contempt and
amounted to adjudication of rights and liabilities not in issue in the
contempt proceedings. At all events, on the facts and circumstances,
there was no disobedience, breach or neglect on the part of the Bank
and its President and Secretary, to provoke the court to issue such
directions, even assuming that such directions could be issued in the
course of the contempt proceedings. Hence, directions (2) and (3) and
the direction relating to revocation of suspension are liable to be set
aside.
Re : SLP (c) Nos. 13045-46/2003
22. These SLPs. arise out of the order dated 3.9.2001 in MAT No.
1102/2001 filed by the Bank against the order dated 20.11.1998 in
CPAN No. 2237/1997. As we have held that the appeal filed by the
Chairman and Secretary on behalf of the Bank [MAT No. 4075/1998]
against the said order was maintainable, these SLPs. have become
infructuous.
Conclusion :
23. During the pendency of this appeal, the Enquiry Officer has
completed the enquiry and submitted his report dated 18.7.2002. No
action has been taken thereon in view of the pendency of this civil
appeal and the interim order dated 25.2.2002 which permitted only the
completion of the enquiry. In view of this decision, there will now be
no impediment for the Bank to take further action based on such
Inquiry Report.
24. In view of the above, we dispose of these matters as follows :
(i) CA No. 1727/2002 is allowed. The order dated 26.2.2001 of
the Calcutta High Court in MAT No. 4075/1998 is set aside.
Directions (2) and (3) as also the direction that “the
suspension shall be immediately deemed to have been
revoked” contained in the order dated 20.11.1998 of the
learned Single Judge passed in CPAN No.2233/1997
(arising from C.O. No. 20008(W) of 1995) are deleted.
(ii) SLP (C) Nos. 13045-46/2003 are dismissed as infructuous.
(iii) The appellant-Bank is at liberty to take further action in
pursuance of the Inquiry Report dated 18.7.2002, in
accordance with law.
(iv) Parties to bear their respective costs.