B.C. Jauhari, J.
1. This appeal has been filed by Kuldip Narain Lai, appellant, against the order passed by Hon'ble Mr. Justice P.N. Goel in Contempt Case No. 304 of 1981, reported in 1982 All WC 671 : 1982 UPLT NOC 79, Kuldip Narain Lal v. Sri Mahendra Pal Jain and Sri Shanker Lal Jaiswal, by which he has discharged the notice for contempt issued against the opposite parties and held them not to be guilty of the contempt of Court.
2. It appears that the appellant was appointed as Officiating Collection Amin by the order dated 22.8.1980. But subsequently by another order dated 21.6.1981 he was made seasonal Collection Amin. The appellant challenged this order by way of a petition before the Service Tribunal Lucknow and applied for an ad interim stay order that the order dated 21.6.1981 should not be given effect to. On 19.9.1981 the Tribunal passed an order that 12.10.1981 be fixed for hearing of the stay matter and till then status quo as prevailing on that day be maintained. This stay order was subsequently confirmed on 21.10.1981. The grievance of the appellant is that the opposite parties have ignored this order of the Tribunal and have not given him pay and have committed contempt of the order of the Tribunal and, therefore, be punished for contempt.
3. The opposite parties filed their objection saying that no order of the tribunal was disobeyed and no contempt was committed.
4. After hearing learned Counsel for the parties, the learned single Judge held that although the Tribunal was a court within the meaning of the Contempt of Courts Act, the order could not be challenged on the ground of its being passed without jurisdiction and repelled the preliminary objections raised in that regard. On facts, however, he held that it cannot be said that opposite parties disobeyed any order of the Tribunal and, in fact, the order of the Tribunal suffers from vagueness.
5. In the result, he has dismissed the petition for taking action for committing the alleged contempt. The appellant has, therefore, filed this appeal purporting to be under Section 19(1) of the Contempt of Courts Act.
6. We have heard the learned Counsel for the parties at great length and we feel that in the first instance no appeal lies against an order where the High Court has refused to exercise its jurisdiction to punish for contempt. This is clear from the wording of Section 19 of Contempt of Courts Act. Section 19 lays down as below:
19(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 of the Supreme Court; Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union Territory, such appeal shall lie to the Supreme Court.
(2) Pending any appeal, the appellate court may order that-
(a) the execution of the punishment or order appealed against be suspended,
(b) if the appellant is in confinement, he be released on bail, and
(c) the appeal be heard notwithstanding that the appellant has not purged his contempt.
6A. In its very plain language Sub-section (1) has provided for an appeal against a decision of the High Court in exercise of its jurisdiction to punish for contempt. Consequently, an appeal would tie where the jurisdiction to punish for contempt has been exercised and the condemner has been punished in the instant case, the High Court has refused to exercise its jurisdiction to punish for contempt on the ground that no case of contempt has been made out. Consequently, this order of the learned single Judge cannot be said to be an order of the High Court in the exercise of its jurisdiction to punish for contempt and is, therefore, not appeasable.
7. In the view that we have taken regarding there being no appeal against such order, we find support from the case of Baradakanta Misra v. Mr. Justice Gatikrushna Misra C.J. of the Orissa High Court reported in : 1975CriLJ1 . In that case a reference was made to the High Court for initiating proceeding for contempt and the court refused to take action and it was held that no appeal lies against that order. The observations made in the judgment at page 2260 of AIR : at p. 6 of Cri. LJ can be quoted usefully as below:-
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 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 terminus 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.
8. The view that we have taken finds support from another premises which is to the effect that the scheme of Contempt of Courts Act, 1971 is that the High Court has been vested with the powers to punish for contempt of courts subordinate to it under Section 10 of the Contempt of Courts Act. Under this section the High Court punishes persons found guilty of the contempt of the orders of the subordinate courts. In the present case the appellant moved the High Court for taking action under Section 10 and the High Court through the decision of the learned single Judge refused to take action for contempt. If an appeal would be deemed to lie against such an order under Section 19 of the Act, it would tantamount to the High Court refusing to take action and the High Court again taking action for contempt. Consequently, where the matter of contempt has engaged the attention of the High Court and the High Court has refused to take action that would be the end of the matter so far as the High Court is concerned. Of course, as laid down in 1974 Supreme Court case above, the petitioner is not without a remedy and he could still move the Hon'ble Supreme Court by way of special leave to appeal, who would exercise its jurisdiction under Article 136 of the Constitution of India, Nonetheless the appeal would not lie under Section 19 when the High Court has refused to take action for contempt in its appellate jurisdiction. Thus the appellate Court under Section 19 has been given power for the express purpose of considering the matter where the contemner has been punished and by looking into the order whether it should be sustained or set aside.
9. There is yet another premise to this controversy. Section 19(1) has to be read along with Sub-section (2) of Section 19, from a perusal of which it would be clear that an appeal under Sub-section (1) of Section 19 can lie only against an order where a person has been punished for contempt. Sub-section (2) gives power to the appellate court to stay the execution and suspend the sentence. The contingency provided in Sub-section (2) therefore could only arise in a case where a person has been found guilty of contempt and has been punished and has filed an appeal. This Sub-section (2) would be absolutely superfluous if an appeal, were, provided against an order refusing to exercise its jurisdiction to punish for contempt.
10. In the view that we have taken above, it is no longer necessary to consider the merits of the matter. But it quite be mentioned that in the present case a reference has been made in the judgment of the learned single Judge to the contention raised that the Tribunal had no jurisdiction to pass the stay order in view of the amendment of Section 5 of the Public Service Tribunal Act. This matter was considered by the learned single Judge and it was held that the position of the Court dealing with the contempt petition is like that of an executing Court and therefore this Court cannot go behind the decree and look into the legality or otherwise of the interim order passed by the Tribunal. With the greatest respect to the learned single Judge, who decided this matter, we fail to accept this contention. Even the proposition that the executing court cannot go into the legality or otherwise of the decree is not an absolute proposition, and, in our view the executing court can certainly go behind the decree if the decree is said to be without jurisdiction. The learned single Judge has in this case relied upon a case of Narain Singh v. Hardayal Singh Harika . An extract from this ruling has been quoted in the judgment. In the quotation in the last sentence itself the words that occur are 'Though the court acted within its jurisdiction, but the order that it passed was erroneous.' Consequently, this case relied upon by the learned single Judge, cannot be an authority for the proposition that even orders without jurisdiction cannot be challenged. The distinction to our mind is that if an order is passed within the jurisdiction by a particular court then another person cannot say that the order is wrong or erroneous or illegal or otherwise not proper. Once it is conceded that the Court has jurisdiction to pass an order, the correctness of that order cannot be challenged. The position is, however, otherwise, where there is inherent lack of jurisdiction in the court and the order is without jurisdiction as in the present case. If an order is without jurisdiction then according to the Supreme Court case Kiran Singh v. Chaman Paswan reported in : 1SCR117 , the order is a nullity and the same must be ignored. In the instant case, the power to pass such an order by the Tribunal was withdrawn by an amendment in the Act. Consequently, apart from other things, the order was absolutely without jurisdiction. Once the order is held to be without jurisdiction then the disobedience of the order to our mind, would not be a contempt we may, however, make it clear that an order passed by the Court is entitled to great respect and must be followed by the person against whom it is directed. The person concerned can only ignore this order upon the ground of want of jurisdiction at grave risk to himself because if the order is found to be within jurisdiction then the contemner will have to face the consequences. The contemner would, therefore, take that risk only if he is fully confident that the order on the face of it is without jurisdiction.
11. Giving the matter our anxious consideration, we feel that no appeal lies under Section 19(1) of the Contempt of Courts Act and further in the instant case the order of the Tribunal, in respect of which contempt is said to have been committed was wholly without jurisdiction and as such in the particular circumstances of this case this could not be the subject-matter of punishment under the Act.
12. We, accordingly, dismiss the appeal.