Contempt Petition No.264 of 2015

12th February, 2016.

Petitioner Counsel: Shri S.D. KOTKAR
Respondent Counsel: Mrs. B.H. DANGRE

Cases Cited:
State of Maharashtra Vs. Arvind M. Katkar, WP No.2635/2013 [Para 3]
Thakur Jugal Kishore Sinha Vs. The Sitamarhi Central Co/operative Bank Ltd. and another, AIR 1967 SC 1494 [Para 3,8,9]
K. Shamrao Vs. Assistant Charity Commissioner, 2003 ALL MR (Cri) 823 (S.C.)=(2003) 3 SCC 563 [Para 3,8,9]
N. Venkata Swamy Naidu Vs. M/s Sri Sri Surya Teja Constructions Pvt. Ltd. and Ors., 2008 Cr. L.J. 227 [Para 3,10]
Subramanian Swamy Vs. Arun Shourie, 2014 ALL MR (Cri) 3376 (S.C.)=(2014) 12 SCC 344 [Para 4,7]
State of Gujarat and anr. Vs. Gujarat Revenue Tribunal Bar Association & anr., 2013 ALL SCR 1=(2012) 10 SCC 353 [Para 4,9]
State of Andhra Pradesh Vs. S. M. K. Parasurama Gurukul, (1973) 2 SCC 232 [Para 4]
Jagadguru Anndanishwara Maha Swamiji Vs. V. C. Allipur & anr., 2009 ALL SCR 1477=(2009) 4 SCC 625 [Para 10]

JUDGMENT

JUDGMENT :- The question that arises for consideration in this contempt petition filed under Section 10 of the Contempt of Courts Act, 1971 (for short, the Act of 1971) is whether the Commissioner while considering a complaint filed under Section 62 of The Persons with Disabilities (Equal Opportunities and Protection of Rights and Full Participation) Act, 1995 (for short, the Act of 1995) is a "court" for the purposes of Section 10 of the Act of 1971.

2. The petitioner was appointed as a Forest Guard in the Forest Department of the State of Maharashtra. Her appointment was on a post reserved for handicapped persons. The petitioner sought promotion on the post of Forester and on said claim not being accepted, she filed a complaint under Sections 62 and 63 of the Act of 1995 before the Commissioner. By order dated 2-7-2015, the Commissioner partly allowed the complaint and directed the Chief Conservator of Forest to examine the case of the petitioner and considered her claim for promotion in accordance with the prevailing rules and policies. Said exercise was directed to be conducted within a period of two months from the receipt of said order. As no steps pursuant to aforesaid directions were taken, the petitioner has filed the present contempt petition.

3. Shri S. D. Kotkar, learned Counsel for the petitioner submitted that though the Chief Conservator of Forest and his subordinate officers were directed to take a decision with regard to the claim of the petitioner for grant of promotion within a period of two months from receipt of said order, the same was not done. It was submitted that the Commissioner was a "court" under the provisions of Section 10 of the Act of 1971 and, therefore, as aforesaid directions were not complied, the concerned authorities were guilty of having committed "civil contempt" under Section 2(b) of the Act of 1971. It was further submitted that in Writ Petition No.2635/2013 - State of Maharashtra Vs. Arvind M. Katkar, decided at the Aurangabad Bench of the High Court the question as regards entitlement of an handicapped person for being promoted was considered and it was held that if the promotional post of Vanpal was not available then the promotion could be granted on an equivalent post. He submitted that despite aforesaid position, the case of the petitioner was not being considered and the directions issued by the Commissioner under the Act of 1995 were being disregarded.

Relying upon the provisions of the Act of 1995, it was submitted that the Commissioner would be a "court" for the purposes of Section 10 of the Act of 1971. The learned Counsel relied on the judgments of the Hon'ble Supreme Court in Thakur Jugal Kishore Sinha v. The Sitamarhi Central Co-operative Bank Ltd. and another, AIR 1967 SC 1494, K. Shamrao Vs Assistant Charity Commissioner (2003) 3 SCC 563 : [2003 ALL MR (Cri) 823 (S.C.)] and judgment of learned Single Judge of the Andhra Pradesh High Court in N. Venkata Swamy Naidu Vs. M/s Sri Sri Surya Teja Constructions Pvt. Ltd. and Ors 2008 Cr. L.J. 227. It was, therefore, submitted that a case for initiating action against the respondents for wilful disobedience of the directions issued by the Commissioner had been made out.

4. Smt. Bharti H. Dangre, learned Government Pleader for the respondents at the outset submitted that the present contempt petition itself was not maintainable as the Commissioner under the Act of 1995 could not be treated as a "court" for the purposes of the Act of 1971. She submitted that the Commissioner under Section 62 of the said Act was clothed with only advisory jurisdiction and there was no lis between the parties that was required to be adjudicated by the Commissioner. It was submitted that no rights of parties were determined and the Commissioner while exercising powers under Section 62 of the Act of 1995 did not function as a "court" for the purposes of the Act of 1971. In that regard she placed reliance upon the judgments of the Hon'ble Supreme Court in Subramanian Swamy Vs Arun Shourie (2014) 12 SCC 344 : [2014 ALL MR (Cri) 3376 (S.C.)], State of Gujarat and another Vs Gujarat Revenue Tribunal Bar Association and another (2012) 10 SCC 353 : [2013 ALL SCR 1] and State of Andhra Pradesh Vs S. M. K. Parasurama Gurukul (1973) 2 SCC 232.

Without prejudice, it was submitted that even if the Commissioner under the Act of 1995 was a "court" for the purposes of Section 10 of the Act of 1971, there was no wilful disobedience committed. It was submitted that a copy of the order dated 2-7-2015 was received by the concerned Authority on 15-7-2015 and thereafter on 14-10-2015, the decision as directed to be taken by the Commissioner under the Act of 1995 was duly taken. It was, therefore, submitted that there was no case whatsoever made out to initiate action against the respondents under the Act of 1971.

5. I have heard the respective Counsel for the parties at length and considered their respective submissions. It would be first necessary to determine whether the Commissioner under the Act of 1995 could be treated as a "court" under the Act of 1971 so as to invoke jurisdiction under Section 10 of the Act of 1971 for taking any action.

6. The provisions of Section 61 of the Act of 1995 empower Commissioner to co-ordinate with various departments of State Government in relation to programmes and schemes for the benefit of persons with disabilities, monitor the utilization of funds, take steps to safeguard the rights and facilities made available to persons with disabilities plus submit reports to the State Government. Under Section 62 of the Act of 1995, the Commissioner may on his own motion or on the application of any aggrieved person look into complaints in respect of deprivation of rights of persons with disabilities and non-implementation of laws, rules, bye-laws etc. issued for the welfare and protection of rights of persons with disabilities. For the purposes of deciding a complaint under Section 62 of the Act of 1995, the Authorities under the Act of 1995 have been granted certain powers of a court under Section 63(1) of the Act of 1995. These powers are in the matter of attendance of witnesses, production of documents, receiving evidence on affidavits and issuing commissions for examination of witnesses or documents.

7. The question as to what would be a "court" for the purposes of the Act of 1971 now stands conclusively decided by the Constitution Bench of the Hon'ble Supreme Court in Subramanyam Swami [2014 ALL MR (Cri) 3376 (S.C.)] (supra). One of the questions that arose for consideration was whether a Supreme Court Judge who is appointed as a Commissioner by the Central Government under the Commissions of Enquiry Act, 1952 would carry with him all the powers and jurisdiction of the Supreme Court of India. While considering said question, the Constitution Bench considered provisions of the Commissions Enquiry Act, 1952 and in para 25 of its judgment observed thus:

"25. Though the 1971 Act does not define the term "court" but in our opinion, the "court" under that Act means the authority which has the legal power to give a judgment which, if confirmed by some other authority, would be definitive. The court is an institution which has power to regulate legal rights by the delivery of definitive judgments, and to enforce its orders by legal sanctions and if its procedure is judicial in character in such matters as the taking of evidence and the administration of oath, then it is a court."

After considering various earlier decisions, it was held that the Commission constituted under the Commissions of Enquiry Act, 1952 was not required to adjudicate upon rights of parties and, therefore, it was not a court for the purposes of the Act of 1971. This was after noticing the fact that the procedure followed by the Commission was of a legal character and that it had powers to administer oath.

8. In Thakur Jugalkishor Sinha (supra), it was held that the Assistant Registrar discharging functions of a Registrar under Section 48 read with Section 6(2) of the Bihar and Orissa Co-operative Societies Act, 1935 was a court for the purposes of the Contempt of Courts Act, 1952. It was held by the Hon'ble Supreme Court that the Registrar while exercising powers under Section 48 had to discharge duties which would have otherwise fallen on the ordinary Civil and Revenue Courts of the land. The Registrar was found to have the trappings of a court and besides other powers available under the Code of Civil Procedure, 1908 he also had the powers to review his own order and exercise inherent jurisdiction under Section 151 of the Code of Civil Procedure, 1908.

In K. Shamrao [2003 ALL MR (Cri) 823 (S.C.)] (supra), it was held by the Hon'ble Supreme Court that the Assistant Charity Commissioner under the Bombay Public Trusts Act, 1950 has almost all powers of an ordinary civil Court. His functions are predominantly adjudicatory, he has the power to give a definitive judgment which has finality and authoritativeness. On that basis it was held that the Assistant Charity Commissioner was a court for the purposes of the Act of 1971.

9. The provisions of Sections 60 to 63 of the Act of 1995, though empower the Commissioner to exercise powers in the matter of attendance of witnesses and production of records, conferment of such powers by itself would not be sufficient to hold the Commissioner to be a "court" under the Act of 1971. The Commissioner under the Act of 1995 is merely empowered to adjudicate a complaint made under Section 62 of the Act of 1995. There is no lis as such before said Authority and there is no statutory duty on the Commissioner to act judiciously. The jurisdiction is only "to look into complaints." Even if certain powers under the Code of Civil Procedure, 1908 have been conferred upon the Commissioner under Section 62 of the Act of 1995, the same are only for the purposes of looking into complaints and taking up the matter with the appropriate Authorities. In absence of any entrustment of judicial powers, the Commissioner cannot be held to be a court as observed in State of Gujarat [2013 ALL SCR 1] (supra). Though much emphasis was placed by the learned Counsel for the petitioner on the aspect that the Commissioner was a subordinate Authority to High Court under Article 227 of the Constitution of India, that by itself cannot have the effect of treating the Commissioner a court for the purposes of Section 10 of the Act of 1971. The decisions in Thakur Jagulkishor Sinha and K. Shamrao [2003 ALL MR (Cri) 823 (S.C.)] (supra) are clearly distinguishable considering the provisions of the Act of 1995.

10. Reference can also be made to the judgment of the Hon'ble Supreme Court in Jagadguru Anndanishwara Maha Swamiji Vs. V. C. Allipur and another (2009) 4 SCC 625 : [2009 ALL SCR 1477]. The facts therein indicate that an Assistant Teacher had claimed promotion on the post of Lecturer and had approached the School Authorities. As said request was not accepted, he made a representation to the Dy. Director of Education and said Authority asked the Management to consider his case for promotion. Thereafter, the Director, Pre-University Education passed an order in his favour. The Management preferred an appeal before the appropriate Authority. The Assistant Teacher, however, filed a contempt application under Sections 10 and 12 of the Act of 1971 in which the High Court directed the charges to be framed. While considering the question whether the Director of Pre-University Education was a court within the meaning of the provisions of the Act of 1971, it was held that the Director was a statutory Authority created under a statute and not a court. It was observed that as the Director was not functioning as a court within the provisions of the Act of 1971, the order taking cognizance of the contempt application and directing framing of charges was without jurisdiction. This decision fortifies the conclusion that the Commissioner under the Act of 1995 cannot be treated to be a court for the purposes of Section 10 of the Act of 1971.

The decision in the case of N. Venkata Swami Naidu (supra) holding the Company Law Board to be a court subordinate to the High Court under Section 10 of the Act of 1971 is based on the judgment of the Hon'ble Supreme Court in Nuclear Power Corporation of India Vs. Custodian AIR 2001 SC 2763. In said decision the Hon'ble Supreme Court after considering provisions of the Companies Act, 1956 held the Company Law Board to be a court subordinate to the High Court under Section 10 of the Act of 1971. Said decision, however, does not assist the submissions canvassed by the learned Counsel for the petitioner.

11. Thus, from the aforesaid discussion, it is clear that in the absence of any adjudicatory powers being conferred on the Commissioner under the Act of 1995 and he having been conferred with the powers to take steps to safeguard the rights and facilities made available to persons with disabilities and to take up the matter with appropriate authorities, the Commissioner cannot be said to be a "court" for the purposes of Section 10 of the Act of 1971. The contempt petition as filed, therefore, cannot be entertained. As the contempt petition is not maintainable under Section 10 of the Act of 1971, the same stands dismissed with no order as to costs.

Petition dismissed.