Kerala High Court Judgement in the case of Shihabudeen A Vs. Principal Controller of Defence Accounts (Pensions) and Others

Kerala High Court
2011 (1) KHC 367

*C. N. Ramachandran Nair; B. P. Ray, JJ.
Case No. W. P. (AFT). No. 37433 of 2010
Date 20 December, 2010
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Case of Shihabudeen A Vs Principal Controller of Defence Accounts (Pensions) and Others

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Armed Forces Tribunal Act, 2007 :- S.19, S.29 Non - compliance with the Orders of Tribunal -- Power of the Tribunal to initiate contempt proceedings -- Held, Tribunal can execute its orders by resorting to coercive steps by initiating prosecution proceedings for punishment for criminal contempt under Art.29 and Art.19 read with R.25 of the Armed Forces Tribunal (Procedure) Rules -- Armed Forces Tribunal (Procedure) Rules, 2008, R.25 -- Contempt of Courts Act, 1971, S.2(c), S.19(1) -- Constitution of India, Art.226

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Facts of the case

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The question that arose for consideration was whether Armed Forces Tribunal has the jurisdiction to initiate proceedings for contempt for non - compliance of orders issued by it under S.14 of the Act. On examination of the provisions of the Act, High Court found that there is no express provision which confers jurisdiction on the Tribunal to initiate proceedings for contempt if there is non-compliance with the orders of the Tribunal. Court felt that there is such a lacuna in the Act. Hence High Court proceeded to interpret the provisions of the Armed Forces Tribunal Act giving a purposive interpretation. Finally, High Court held that non-implementation of the orders of the Tribunal that has become final amounts to obstruction or interference with the course of justice, and is a criminal contempt for which the Tribunal is entitled to initiate prosecution proceedings under S.19(1) of the Act.

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Disposing the writ petition, the Court held:

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We are of the view that it is the duty of the Tribunal to execute its orders by initiating coercive proceedings under S.29, and for which purpose it has the authority under S.19 read with R.25 of the Armed Forces Tribunal (Procedure) Rules to initiate prosecution proceedings for punishment for criminal contempt covered by S.19(1) of the Act read with S.2(c) of the Contempt of Courts Act. We, therefore, declare the above position. The petitioner is given freedom to file contempt application before the Tribunal, and the Tribunal is directed to entertain the same, issue notice and proceed with action against the respondents, if compliance is not reported to it. The Tribunal is directed to follow the same procedure applicable to the Central Administrative Tribunal in contempt matters.

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Important Para(s) 10

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Armed Forces Tribunal Act, 2007 :- S.19, S.29 Non-compliance with the orders of Tribunal -- Held, only on fear of contempt action, the orders of the Tribunal can be enforced -- Non - implementation of the orders of the Tribunal that has become final amounts to obstruction or interference with the course of justice, and is a criminal contempt for which the Tribunal is entitled to initiate prosecution proceedings under S.19(1) of the Act -- Armed Forces Tribunal (Procedure) Rules, 2008, R.25 -- Contempt of Courts Act, 1971, S.2(c), S.19(1)

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Held:

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Even refusal to enforce the Tribunal’s orders could also be brought within the scope of interruption or disturbance of the proceedings of the Tribunal because execution of orders of the Tribunal being the duty of the Tribunal under S.29 read with R.25 quoted above, the proceedings of the Tribunal continue until the orders are executed and implemented. In other words, with the passing of interim orders or final orders the Tribunal is not relieved of the matter, and the proceedings before it continues until the Tribunal executes it’s orders under S.29. For this purpose, it’s inherent powers are retained and it has all the powers to enforce it’s orders under S.29 & 19 read with R.25. We do not see any other mechanism to enforce an order except to punish those guilty of non-implementation for contempt. In other words, only on fear of contempt action, the orders of the Tribunal could be enforced. Clauses (ii) & (iii) of the definition of criminal contempt under S.2(c) of the Contempt of Courts Act cover interference with the due course of any judicial proceedings or obstruction of the administration of justice in any other manner. Non implementation of the orders of the Tribunal that has become final is certainly an obstruction or interference with the course of justice, and so much so is a criminal contempt for which the Tribunal is entitled to initiate prosecution proceedings under S.19(1) of the Act.

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Important Para(s) 9

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References

Delhi Development Authority v. Skipper Construction and Another, 1995 KHC 1310 : 1995 (3) SCC 507 : 1995 CriLJ 2107; Joy Varghese v. Armed Forces Tribunal, 2010 (4) KHC 493 : 2010 (4) KLT 611 : ILR 2010 (4) Ker. 564; Supreme Court Bar Association v. Union of India, 1998 KHC 260 : 1998 (4) SCC 409 : 1998 (1) KLT SN 85 : JT 1988 (3) SC 184; Referred to

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Advocates : B. Harish Kumar; For Petitioner

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Advocates : T. P. M. Ibrahim Khan; For Respondents

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JUDGMENT

The Judgment of the Court was delivered by C. N. Ramachandran Nair, J.

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1. . We have in the recent judgment in Joy Varghese v. Armed Forces Tribunal, reported in 2010 (4) KHC 493, explained the nature of jurisdiction of the High Court under Art.226 & Art.227 of the Constitution of India over the Armed Forces Tribunal, and on matters covered by the Armed Forces Tribunal Act, 2007 (hereinafter referred to as the Act for short).

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2. . The question raised in this writ petition filed under Art.226 of the Constitution of India is whether the Armed Forces Tribunal (hereinafter referred to as the Tribunal for short) has the jurisdiction to initiate proceedings for contempt for noncompliance of orders issued by it under S.14 of the Act. The petitioner obtained final orders from the Tribunal in T. A. No. 37/2010 on 22/03/2010, which is produced as Ext.P1 in this writ petition, directing the respondents to process the petitioner’s claim for War Injury Disability Pension and release the benefits within six months from the date of receipt of a copy of the order. Since the period for compliance with the directions contained in Ext.P1 order is over, the petitioner filed this Writ Petition praying for a mandamus against the respondents to comply with the Tribunal’s order, and in the alternative to declare that the Tribunal has the jurisdiction to initiate contempt action against the respondents for violation of the orders of the Tribunal.

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3. . We have heard learned counsel for the petitioner and learned Assistant Solicitor General appearing for the respondents.

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4. . If the Tribunal’s order has become final, then it is the duty of the respondents to implement the same, and on failure, this Court will be perfectly justified in issuing a writ of mandamus to the respondents to comply with the Tribunal’s order. However, in principle, we feel, we should not encourage filing of writ petitions of this kind, because we cannot convert the High Court as an execution Court for implementation of orders of the Tribunal. Further the very purpose of constitution of the Tribunal will be defeated if the Tribunal cannot enforce their orders and on account of the same parties are compelled to approach the High Courts leading to multiplicity of litigation. Keeping these in mind, we proceed to consider the powers of the Tribunal under the Act to enforce it’s own orders and if the Tribunal is short of powers, to consider whether this Court can confer authority on it to function effectively under the Act. In our view, a mechanism has to be evolved for implementation of the orders of the Tribunal by itself, or otherwise the High Courts will be flooded with writ petitions filed for enforcing orders of the Tribunal. Obviously neither the Parliament nor the Government desires the High Courts to be converted as execution Courts for enforcement of Tribunal’s orders. If we find the Tribunal a helpless body under the statute, then we feel, we have the inherent powers under Art.226 and Art.227 of the Constitution of India to declare and confer sufficient powers on the Tribunal to enforce their orders so as to liberate the High Court from the unnecessary burden of enforcing Tribunal’s orders. Besides saving the High Courts, we have to also keep in mind the interests of the litigants who after getting favourable orders from the Tribunals should not be dragged to the High Courts for enforcing Tribunal’s orders and if done the undesirable consequence will be that fruits of litigation will be eaten up in unnecessary further litigation in the High Courts. S.17 of the Administrative Tribunal’s Act, 1985 confers sufficient powers on the Administrative Tribunals to initiate contempt proceedings for violation of it’s orders. Though Armed Forces Tribunals are given exhaustive jurisdiction to decide on all service matters pertaining to serving, retired and dead defence personnel represented by legal heirs claiming under them, the legislature has not been very generous to cloth the Tribunal with sufficient powers including the power to initiate contempt action for enforcement of it’s orders as is done in the case of the Central Administrative Tribunal. In fact, learned counsel for the petitioner has referred to clause 30 of the Armed Forces Tribunal Bills, 2005, where the reply given by the Government to the Committee about the nature of the proposed Armed Forces Tribunal is as follows:-- “Since the Armed Forces Tribunal would be dealing with offences, legally awardable punishments and termination of service etc. and the Tribunal is being armed with the powers of contempt, it would be a judicial body. It would be a permanent Tribunal and a Court of record.” However, when the bill got enacted into statute, it is seen that the powers conferred on the Tribunal, particularly with regard to contempt, are very limited. Therefore, we have to closely examine the provisions of the Act and the Armed Forces Tribunal (Procedure) Rules, 2008, prescribed thereunder to see whether the Tribunal has any inherent power to execute it’s orders instead of compelling the beneficiaries of it’s orders to approach High Courts for enforcement.

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5. . S.14 & S.15 of the Act confer original and appellate jurisdiction on the Tribunal on various matters. So far as execution of orders of the Tribunal is concerned, the provision contained in the Act is S.29, which is extracted hereunder for easy reference:

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“29. Execution of order of the Tribunal.-- Subject to the other provisions of this Act and the rules made thereunder, the order of the Tribunal disposing of an application shall be final and shall not be called in question in any Court and such order shall be executed accordingly.”

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The relevant Rule, namely R.25 of the Armed Forces Tribunal (Procedure) Rules, 2008, is as follows:

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“25. Power of the Tribunal with regard to certain orders and directions.-- Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Tribunal to make such orders or give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice.”

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6. . There is nothing to indicate in S.29 as to how and who should execute the orders of the Tribunal. In our view, in the absence of any other authority prescribed under the Act and the Rules for execution of the orders of the Tribunal, the authority to execute orders of the Tribunal is the Tribunal itself. The powers of the Tribunal contained in R.25 are very wide and the Tribunal is given inherent powers to pass such orders or give such directions as may be necessary or expedient to give effect it’s orders or to prevent abuse of it’s process or to secure the ends of justice. Obviously neither S.29 nor R.25 speaks about the Tribunal’s authority to initiate contempt proceedings against the authorities, who fail to enforce it’s orders or comply with it’s directions. The only provision that authorises the Tribunal to initiate contempt action is S.19, which is also extracted hereunder for ready reference:

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“19. Power to punish for contempt.-- (1) Any person who is guilty of contempt of the Tribunal by using any insulting or threatening language, or by causing any interruption or disturbance in the proceedings of such Tribunal shall, on conviction, be liable to suffer imprisonment for a term which may extend to three years.

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(2) For the purposes of trying an offence under this section, the provisions of S.14, S.15, S.17, S.18 and S.20 of the Contempts of Courts Act, 1971 shall mutatis mutandis apply, as if a reference therein to—

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(a) Supreme Court or High Court were a reference to the Tribunal;

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(b) Chief Justice were a reference to the Chairperson;

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(c) Judge were a reference to the Judicial or Administrative Member of the Tribunal;

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(d) Advocate - General were a reference to the prosecutor; and

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(e) Court were a reference to the Tribunal.”

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7. . While the contention raised by counsel for the petitioner is that since S.19 is not made applicable for the purpose of S.29, the Tribunal will not be able to enforce it’s orders through coercive steps, which includes initiation of contempt action against the authorities who do not comply with it’s orders or who fail to implement it’s directions; the Assistant Solicitor General, on the other hand, contended that S.19 deals with only criminal contempt and the same does not apply for initiating action for civil contempt, which essentially covers violation of Tribunal’s orders or directions as defined under S.2(b) of the Contempt of Courts Act. Since the Armed Forces Tribunal is a recently constituted one, there is no decision of any High Court or Supreme Court on the powers of the Tribunal in contempt matters. Learned counsel for the petitioner has relied on the decision of the Supreme Court in Delhi Development Authority v. Skipper Construction and Another, reported in 1995 KHC 1310 and contended that deliberate flouting of Court orders amounts to obstruction of due course of judicial proceedings and administration of justice, and by relying on this decision, he canvassed for the position that S.19 of the Act takes in the power to punish for contempt for violation of the Tribunal’s orders. Another decision cited by him is that of the Supreme Court Bar Association’s case, reported in 1998 (4) SCC 409 (Supreme Court Bar Association v. Union of India, 1998 KHC 260), wherein the Supreme Court held that Courts to punish for contempt is a power inherent in a Court of record, and even the Parliament cannot by law take away the inherent jurisdiction of the Court to punish for contempt. Learned counsel for the petitioner therefore contended that the Tribunal has inherent power to initiate contempt proceedings for violation of it’s orders. He also relied on the Full Bench decision of the Patna High Court in  the matter of Basanta Chandra Ghosh, reported in AIR 1960 Patna 430, for the position that even Subordinate Courts have the power to initiate contempt action for violation of it’s judgments and orders. Learned Assistant Solicitor General, on the other hand, contended that Tribunal’s powers have to be found only in the statute and it has no extra or inherent powers over what are conferred on it by the Act.

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8. . What we find in S.19 is that the acts of contempt for which punishment provided therein are essentially criminal contempt defined under S.2(c) of the Contempt of Courts Act. Unlike S.17 of the Administrative Tribunal’s Act, the Act constituting the Armed Forces Tribunal do not cloth the Tribunal with express powers to take contempt action for violation of it’s orders. The question, therefore, to be considered is whether breach of orders of the Tribunal or failure to implement it’s directions amounts to criminal contempt justifying initiation of contempt proceedings by the Tribunal under S.19 of the Act. Of course, if the Tribunal has the authority to punish for violation of it’s orders as provided under sub-section (1) of S.19, then sub-section (2) thereof gives the Tribunal same powers of the Supreme Court or High Court as are available under S.14, S.15, S.17, S.18 & S.20 of the Contempt of Courts Act, 1971. In order to examine whether the violation of the orders of the Tribunal or failure to implement it’s directions amounts to criminal contempt, we have to refer to S.2(c) of the Contempt of Courts Act, 1971, which is as follows:

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“2.(c) “Criminal contempt” means the publication (whether by words, spoken or written or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which--

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(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any Court; or

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(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

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(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.”

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9. . No doubt, definition clauses of the Contempt of Courts Act and the whole provisions of the said Act as such are not incorporated in the Act herein. However, under S.19(1), causing any interruption or disturbance in the proceedings of the Tribunal is a contempt, which is made punishable thereunder. Basically, the interruption or disturbance provided therein is physical obstruction affecting the smooth functioning of the Tribunal. We feel, even refusal to enforce the Tribunal’s orders could also be brought within the scope of interruption or disturbance of the proceedings of the Tribunal because execution of orders of the Tribunal being the duty of the Tribunal under S.29 read with R.25 quoted above, the proceedings of the Tribunal continue until the orders are executed and implemented. In other words, with the passing of interim orders or final orders the Tribunal is not relieved of the matter, and the proceedings before it continues until the Tribunal executes it’s orders under S.29. For this purpose, it’s inherent powers are retained and it has all the powers to enforce it’s orders under S.29 & S.19 read with R.25. We do not see any other mechanism to enforce an order except to punish those guilty of non - implementation for contempt. In other words, only on fear of contempt action, the orders of the Tribunal could be enforced. Clauses (ii) & (iii) of the definition of criminal contempt under S.2(c) of the Contempt of Courts Act cover interference with the due course of any judicial proceedings or obstruction of the administration of justice in any other manner. Non implementation of the orders of the Tribunal that has become final is certainly an obstruction or interference with the course of justice, and so much so is a criminal contempt for which the Tribunal is entitled to initiate prosecution proceedings under S.19(1) of the Act.

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10. . Therefore, we are of the view that it is the duty of the Tribunal to execute it’s orders by initiating coercive proceedings under S.29, and for which purpose it has the authority under S.19 read with R.25 of the Armed Forces Tribunal (Procedure) Rules to initiate prosecution proceedings for punishment for criminal contempt covered by S.19(1) of the Act read with S.2(c) of the Contempt of Courts Act. We, therefore, declare the above position. The petitioner is given freedom to file contempt application before the Tribunal, and the Tribunal is directed to entertain the same, issue notice and proceed with action against the respondents, if compliance is not reported to it. The Tribunal is directed to follow the same procedure applicable to the Central Administrative Tribunal in contempt matters.

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11. . Before parting with the matter, we feel it is our duty to express our opinion that the Act needs amendment to cloth the Tribunal with specific powers to initiate action for contempt for implementation of it’s orders i.e. by conferring express powers to initiate contempt for violation of it’s orders or for non - implementation of it’s orders by the authorities. That is the power similar to what is granted under S.17 of the Administrative Tribunal’s Act on the Central Administrative Tribunal.

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This Writ Petition is disposed of as above.