029-SLLR-1988-V2-DAYAWATHIE-AND-PEIRIS-V.-DR-S.-D.-M.-FERNANDO-AND-OTHERS.pdf

It is significant that it was only after the receipt of the reply1R4, that the Respondents had taken steps to re-commenee thatcourse. They had not acted on the earlier reply, 1R2. In betweenthey had shown every sign of having complied with or at leastwillingness to comply with the Judgment of the Court. They hadsuspended the old course and had prepared the lists P4A andP4B.
Dharmaadhikari J. in SAHAKARI S Case (Supra) added:—
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" If the act or omission was not wilful, then it cannot be saidthat the Officer: acting in good faith, on the basis of LegalAdvice has deliberately and wilfully disobeyed the Order ofthe Court.”'
Tuli J. sitting in thejfigh Court of Punjab and Haryana (FullBench) in Prakash Chand vs. S.S. Growar$7) has quoted fromthe judgment of the Supreme Court of India in the case of S. S.Roy vs. State of Orissa (38).
" The error must be a wilful error proceeding from improper orcorrupt motives in order that he (A Govt. Servant) may bepunished for Contempt of Court. Ori the facts found, theAppellant could certainly be said to have acted withoutproper care and caution, but there is nothing on the Record
to sbggbst any wilful culpability on his part and it hasbeen expressly held by the High Court Judge that he wasnot actuated by any corrupt or dishonest motive."
It was'the submission of Learned President's Counsel for the'Petitioners that the 1 st and 2nd Respondents had a dishonestor collateral motive, viz. To further the prospects of thosenurses who had not gone on- strike and to circumvent ifpossible theaDecree of the Supreme Court. To penalise thenurses who had gone on strike was a decision of theGovernment. That was in consequence of a policy decision'taken in respect of all Public Servants who had gone oh strikeduring that period. The 1st Respondent would have had toimplement that directive. It was according to that directive thatthe persons who were to participate in the Old Course werechosen. The question that arises is as to whether the 1st■ Respondent was attempting to continue, to implement thatPolicy Directive, which had been struck down by the SupremeCourt, as being violative of the Fundamental Rights of thePetitioners.^ .
The immediate order give« to suspend that course, the,preparation of the lists P4A and P4B and the queries and theguidance sought in the letters 1R1 and 1R3 do not permit oneto draw the inference that the 1st Respondent continued tohave such a motivation. The burden is clearly on thePetitioners to establish the continued existence of. such awilful intent. It is trite law that to a charge of Contempt, theplea of having taken action on le§al advice is. by itself, not acomplete defence. As stated by Dharmaadhikari J. inSAHAKARI'S case (supra):—
“ . . .■ . There is certainly no general doctrine which saves a 1party from the consequences of wrong advice. The matterwill obviously stand on a different footing if the personconcerned is. deliberately avoiding to obey the order byusing wrong and illegitimate reasons. Nobody can bepermitted to disobey the Orders of Court by puttingforward some excuse; including an excuse based onwrong legal advice."
348Sri Lanka Law Reports .[1988} 2 Sri L. R.
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As stated by Mudholka J. in the Supreme Court of India in 5.
K.Karys. Chief Justice of Orissa^)'
There may perhaps be a case where an order disobeyedcould reasonably be construed in two ways, and aSubordinate. Court construed it in one of those two ways,but in a way. different from that intended by the SupremeCourt, surely it cannot be said that disobedience of thatOrder in such. a case by a Subordinate Court wasContempt of the Supreme Court."
In Sahakari's case (Supra) it was further held (p. 1818 para.
22):-
" However as. held in .the Madras High Court in MotaurMajes and Co. vs. Dy. Commissioner, Tan Officer, (40) wemight emphasise that no Officer of Government, howeverhigh or exalted he may be, can take, upon^himself theresponsibility of judging the correctness or the validity ofthe Order of the Court. If he. honestly and bone fide, inthe discharge of his duties {gels. that it is either erroneousor needs clarification, the only remedy available to him isto apprdach the said Court by way of review and seekmodification OR approach a High Court by filing ahappeal, instead of following such a course it is not opento him to take upon himself the responsibility of.judgingthe Order and then to take action contrary to orinconsistent with the* same on the basis of his ownjudgment."
It js significant that out of the several circumstances inSAHAKARI's case which have influenced that decision, one.which is not present in either of the cases in hand, is thatthose Police Officers in that case had made unqualifiedapologies to Court on realising the mistake they had made-incomprehending the Law. In this context it wilt be appropriateto bear in mind the words of Hidayatulla C,J. in the SupremeCourt of India in Debobrata vs. The State (41 )• On the questionof the absence of an apology.
" However the man may have the courage of his convictionsand may stake his aJI in proving that he is not in Contemptand. may take the risk. In the present case the Appellant ranthe gauntlet of such a risk and may be said to have fairlysucceeded."
In a case in which a declaratory decree had been‘obtainedstriking down a dismissal of a Railway employee as unlawful butwith no further directions, pending appeal the DivisionalSuperintendent withheld payment, of his salaries, thereafter. Thatwas done on the advice of their Law Officers. Narula J. added:—
" Though. I cannot congratulate" him for the somewhatstubborn attitude adopted by himrn his return to-the Ruleissued in this case, I have not been able to pursuade myselfto hold the Respondent No. 2 guilty of Contempt of Court inthe peculiar circumstances of this case." Ragunath Rai vs.Sa/)a/143>.
The Defendant, in a certain case, was ordered to execute certainrepairs to a boiler. He did not do so. The District Court held himto be in Contempt. In a Subsequent -case filed by the samePlaintiff for damages for non-compliance with the earlierJudgment Bertram C.J. held in appeal:—
" That the District Court had no authority to punish forContempt under the circumstances. (Not unless in the faceof the Court.) •Non-compliance with a judgment of the courtis hot in ordinary circumstances a contempt of Court.."…Ismail vs. IsmaiA^S)
I am in entire agreement with the dictum of Tuli J. in Prakashvs. Gerwal (supra):—
. . but if the conduct of the particular Govt. Officer whoseduty it is to give effect to the decree, shows that he wilfullyand deliberately refrained from giving effect to the decisionof the Civil Court a case of Contempt may arise. Thepresent Petition was filed under Sec. 3 of the Contempt ofCourt Act — 1952. which did not.contain any definition ofthe phrase 'Contempt of Court'- or ‘Criminal Contempt' or'Civil Contempt' with the result that it was left to the learnedJudge dealing with the matter to come to the conclusionwhether contempt had been committed or not in aparticular ca§e . . Contempt of Court it may be.remembered is a summary process and has to be used onlyfrom, a sense of and under pressure of public interest. Thesesummary powers,-if they are to be effective and are touphold the dignity of the Court, must not be- used toorapidly and too. frequently, without, compelling reasons, atthe instance of aggrieved litigants who, more often than not,are inspired by a desire to use the machinery of thesepowers for enforcing their Civil Rights. These powers haveonly to be used in serious cases where deliberate Contemptis clearly established on the part of the contemner"' Thegreat importance of upholding the dignity, power, prestigeand authority of the Court of Law and of implicit obedienceto the Orders of Court can be minimised only at the risk ofweakening the foundation of our Constitutional set up andcorrespondingly endangering our very . .democraticexistence. The Court would, accordingly, be failing in itsConstitutional obligation to ignore disobedience of itsOrders or. of those of its subordinate Courts, from anyquarter in this Republic, however high. But, the usefulnessof this power necessarily depends on the wisdom andrestraint with which it is exercised ..: Contempt of Court, itis undeniable, lies, broadly speaking, in despising theauthority of Justice or the Dignity of the Court."
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Even.in Sri Lanka Failure to honour an undertaking given tocourt’ is a Contempt of Court..
DeAfwis vs. Rajakaruna^h In Re Cade^S)
– So too ‘Disobedienceto an Injunction . „.. is punishable as forContempt.
Arumugan vs. KadirgamanpiHai 1 —(46)
In 1970 an Assize Judge made an Order for the return of amotor vehicle to the claimant, but made it subject to-certainconditions. Two months later, a Proctor, the appellant, made an
application to.that Court, before the same Judge, for'theunconditional release of the car. He was convicted fot contempt.Fernando: P. the President of. the Court of Appeal of Ceylon,•{which atthattime was the Apex Court) held:—-,'<•
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“The application made to court tdmake an order differentfrom the Order it had already .made could not be said to bein violation of that Order. The person affected by that Order' of 21/9/1970 could not be denied .the'opportunity of1 requesting Court to vary- that conditional Order. Much less! 'could a Proctor appearing for that person and presenting aJ mption to Court tp the same effect be guilty of Contempt." '
Velayuthan v. The Hon. A. C. A. Alles^l)•' 1"
From an analysis of all these Judgments it appears that there isa difference between .those cases in.which therehas been beendisobedience to injunctions and undertakings given to Court onthe pine hand, and those in which the disobedience pas been'to aDecree or'Judgment of a Court on the other While in theformer, the act itself, unless it has been accidental, casual or.done unintentionally. Was held to be culpable, in the latterinstance, there must be something more; namely, a deliberatedisdain >of the Court or a disregard for 6r defiance of the Courtand its'Decree. In the case of ‘Publications' the acts becomeculpable if they are'Calculated' to bring the Court or the. Judgeinto disrepute or if it is 'Calculated' to divert the orderly course ofjustice or diminish the confidence of the Public in the Judiciary
or the Judicial Process.*
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in the cases now before us. ,the 1st Respondent hasapproached the Court through his Attorney for a. clarification,and for permission to re-co mme nee the Old Course, while at thesame time and in .compliance with the Decree, straightaway,suspending the Ofd Course. On being pre-warned of a possibleinfraction of the Law. and ,of having to face, a charge OfContempt he had, at every stage, taken advice from the Hon. theAttorney .General before finally re-starting the Old Course, andthat too after the receipt of 1R4. Such conduct does not favourthe drawing of an inference, of mate tides or- improper orcollateral motivation. They do not savour of Contempt. The 2ndRespondent happened to be acting that day lor the directorGeneral of Health. In these circumstances and in the absence ofcogent evidence of a conspiracy or of connivance, it is mostprobable that, on a* reading of the letter 1R4, he. the 2ndRespondent bona fide believed that there was no illegality ormisconduct involved in complying with the order endorsed on itto him, by the 1st Respondent. That endorsement directed him totake steps to re-commence the course. The 2nd Respondent wasno doubt, not a party to that case No. 37/87 at any stage, noteven at the stage following the Judgment. From the evidence it■appears that as Acting D.H.S. he merely passed on the directivehe had received from the Ministry. To my mind his conduct doesnot. in the circumstances, reveal that degree of carelessnesswhich will attract the censure of the Court and a conviction forContempt.
Learned President's Counsel for the Petitioners contended thatin any event, parties cannot, even of consent, vary the terms of aJudgment. No doubt that the parties cannot be heard to say.even of consent, that there had not been a breach of aFundamental Right, yet, as regards the other findings and of thedirections given I am unable to accept, without reservation.Learned Counsel's proposition. Notwithstanding the Judgment ina Civil case it is possible for the parties to enter into acompromise after they have obtained a Decree on the mattersthat they had submitted to court for its determination. Indeed thePetitioners themselves, in paragraph 11 of their Petition statethat the Supreme Court had indicated that any problemsbetween the parties should be resolved by consent and mutualagreement. With great respect to the learned Judges who madethe order on 16/6/88 <p8) I am unabje to agree with thestatement that once a Court has passed a Decree that it cannot,at the request of the parties and with their consent, record anagreement reached between them subsequent to the decree. It is* possible that an arrangement so made and recorded becomesenforceable between the parties. Indeed, in civil cases, when theJudgment Creditor-seeks to issue writ, he is bound to inform theCourt of. any compromise that has been reached between theparties, namely between himself and the Judgment Debtor,subsequent to the Judgment. *
Accordingly the Rule issued on both Respondents.. 1 st and2nd, are discharged, in ail the circumstances of the case I make,no order for costs,' –
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FERNANDO, J.
i have:had the advantage of reading the judgments of rriybrothersJameei, J., and Amerasinghe.J:. and set out my reasonsfor agreejng with them that this Rules issued on the Respondentsshould be discharged, without costs.
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The Order dated 25.4:88 of this Court, firstly, set aside theselections made,'and by necessary implication prohibited'thecontinuation of the training course for the persons held .to bedisqualified, and. secondly, mandatorily required that freshselections be made, without any disqualification being Imposedon account of trade union action, and by necessary implicationrequired that the persons so selected be permitted to follow atraining course.;'
Fresh selections were made in accordance with that order;
and a training Course having been commenced on 1.6.88, forthe "new1' trainees, there has been full compliance with''thesecond limb of the Order, and ho question of contempt arises inrelation thereto.'.
The motion dated 27.4.88. if. and insofar as. it sought thesanction of this Court for aH the "disqualified" persons tocontinue to follow the "old" course, was an attempt to obtain avariation of the Order, as it could not possibly have beensuggested that the Order was per incuriam in that respect; thisCourt was clearly functus. All parties, in effect, invited or at leastacquiesced in the Court providing an opportunity for them toreach agreement on any outstanding matter related to themanner of implementation of the Order.
Orders giving redress in respect of the violation offundamental rights can be made in an action in an original Court(as in Gunaratne v. Peoples Bank. (1986) 1 Sri L.R. 338) (48) orin a Writ application (of Article 126(3)). or in an applicationunder Article 126, and while parties cannot, by consent orotherwise, vary the judgments or orders of this Court or of anyother Court, it would generally be open to a party to renouncesome or alj of the benefits to which he is entitled thereunder. Alawful adjustment or compromise subsequent to judgment anddecree would not . amount to a variation thereof, but wouldnevertheless bind a party at least to the extent that his right toexecute the decree would be affected pro tanto. The personsaggrieved by the discriminatory acts complained of in S.C.37/87 could have agreed, for instance, that they had noobjection to some or all of the "disqualified" persons beingselected, in addition to themselves. This would have been nodifferent to a plaintiff who obtains an injunction, restraining adefendant from entering his land, later consenting to the .defendant walking across paryrf his land.
While there is no doubt that an agreement was reached on6.6.88. it appears most unlikely that the Petitioners would haveagreed to a variation of the Order of 25.4.88: if such a variationwas notified to the Court (which had already expressed the viewthat it was functus, to vary its own order) itjs most likely thatsuch variation would have been specifically recorded, and notleft for inference or implication. However, the terms of the
-motion dated 27.4.88. the correspondence between the 1stRespondent and the Deputy Solicitor-General, and the legaladvice given by the latter on 16.6.88 undoubtedly gave rise to a
misapprehension in the..minds of the Respondents as to theOrder of 25.4.88 and what they were entitled to do; analysis ofthe facts by my brother Amerasinghe. J., demonstrates that theyacted bona fide, and not in defiance or disregard of that Order.
While there is "strict" liability for contempt in regard toscandalising the Court, and breaches of injunctions andundertakings, the alleged contempt here does not fall into thesecategories. I entirely agree with my brother Amerasinghe. J.. that(a) the mere failure to comply with a declaratory order, or a non-coercive order, does.not. without more, amount to contempt, andthat the party affected by such non-compliance is entitled tocome back to this Court for appropriate orders; the power underArticle 1 26(4) — to grant relief and to give directions — extendsto giving such directions as may be necessary for the dueimplementation of a judgment or order of the Court (b)contempt proceedings should not be lightly resorted to. as amode of execution of decrees and orders, but in accordance withthe principles to which he has referred; and- (c) acting inaccordance with legal advice confers no immunity, but is merelyone factor relevant to bona fides.
AMERASINGHE, J.
The Ministry of Health had proposed to hold a Post-basictraining course for nurses. It had been ordered by the FirstRespondent—the Secretary of the Ministry of Health — that allthe nurses who had defied an Essential Services Order, madeunder the Public Security Ordinance by going on strike would beexcluded from that course.
Miss K. K. Dayawathie and several other nurses who were by.that decision excluded from the course, in S.C. Application No.'37 of 1987, complained of violations, of the Fundamental Rightsof equal protection of and equality before the law and the right ofnon-discrimination on the ground of political opinion guaranteedto them under Articles 1,2(1) and 12(2) of the Constitution. TheRespondents in that case were Dr. S. D. M. Fernando, Secretary.Ministry of Health (who is the First Respondent in this case) and161 others.
After three days of hearing, the Supreme Court, comprising HisLordship the Chief Justice and Justices Atukoraie and Tambiah,on 25 April 1988 decided that the classification made by theRespondents in the selection of nurses for the training course in -question had "not been done bona fide", the Chief Justice,(Atukoraie and Tambiah JJ. agreeing) was of the opinion "that thePetitioner's assertion of not being equally treated and of beingdiscriminated against is entitled to succeed" The Courtaccordingly made order "directing, that all selections made forthe said training course — as, for instance, set out in P10 andP11 — as Grade T Nursing Officers (Hospital Services), be andthe same are hereby set aside: that fresh selections be made onthe basis of the marks obtained .by those who presentedthemselves (including the Petitioners and the Added Petitioners)for the examination, without any disqualification being imposedupon them on the ground of participation in any trade unionaction between 18.3.86 and 17.4.86."
On 27 April 1988, two days after the Order of Court, the FirstRespondent in that case (S.C. Application No. 37 of 1987), whois also the First Respondent in this case, filed papers in Courtmoving that "this case be mentioned before Your Lordships on,29th April 1988 (9.45 a.m.) for the purpose of obtaining aclarification from Your Lordships whether it would be in orderfor the 1st and 2nd Respondents to proceed with the coursewhich has already commenced whilst a new course is started forthose whose names were deleted on account of trade unionaction." Thus were commenced, what' I shall, for convenience,refer to as, the clarification proceedings' before this Court.
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The Court (Ranasinghe. C.J., Atukoraie and Tambiah. JJ.) on29 April 1988. 9 May 1988 and 6 June 1988 "listened to thesubmissions put forward. by the respective Counsel, andrecorded the proceedings as they took place." (Ranasinghe. C.J.).The Chief Justice explained that
" This Court assembled after the judgment in this Court was1 delivered, on an application of the-respondents: merely to' enable the parties to arrive at any Settlement, which theywould arriyp inter se .. .. All this was done by this Court,
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even though this Court was functus, after the Judgmentwas delivered, merely for the purpose of-enabling the partiesto arrive in the presence of Court a settlement which would,thereafter, be given effect to by them."
..The Chief Justice said that no order had been made by Courtduring those proceedings and added that
" As far as this Court is concerned, it. has no jurisdiction to
– make any order that would bind the parties or to record anyproceedings or a settlement that would vest any patty withany enforceable rights."
His Lordshop the Chief Justice (Atukorale and Tambiah, JJ.agreeing} recorded the proceedings of the 6th of June in thefollowing terms:
" Mr. Mahanama de Silva (Counsel for the Petitioners) informs,the Court that a new course has commenced on the 1st ofJune 1988 and that all those petitioners together witfiothers who had complained that they have been wrongfullyleft out of the earlier course have been allowed toparticipate in this new course..'.
It is also agreed that both groups, i.e„ the group alreadyfollowing the course which is due to end in about three,months time and the group which commenced their courseoh the 1st of June 1988, will both sit one commonexamination, i.e. those who finished the earlier course willhave to await till those who qpmmenced their course on the1 st of June 1988 also complete their course and thereafterboth groups will sit together, a common examination."
There may well have also been, as there usually are fromthe. Bench as well as the Bar during the course of anyproceeding, what Dharmadhikari, J- in A. T. K. Shaken,Sanstha; v. State of Maharashtra. * (36) described asexpressions of ■ "tentative loud thinking." There may havebeen such thinking on the question of not. merely the modeof implementing the decision of the Court, but also on the
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possibility of continuing the old training course for all the 163nurses who had been earlier selected for the course. I ampersuaded that there might have been some such loud thinkingon this matter during the proceedings on the 6th of June bythree matters: Firstly, when the First Respondent wrote to Mr. M.S. Aziz. Deputy Solicitor-General on 6th June inquiring
"(a) Whether we can continue the entire batch in trainingwith immediate effect.
(b) Whether we have to make any modifications in the• batch to continue this training",the Deputy Solicitor-General in his reply of. 10 June stated asfollows:
On 6.6A9B6" (Sic.) "I informed Court that there had beendiscussions with, the Ministry officials and the Petitioner'srepresentatives and that it was agreed to have both coursesproceed. The Petitioners’ Counsel also agreed to this and,this was duly recorded. The only stipulation recorded wasthat both batches will' sit for one examination at theconclusion of the new course. / also recall the Petitioners'Counsel stating that only those who were eligible to beselected in the old batch would be permitted to which /responded that only persons eligible were selected andthat in any case we should not have this recorded asagreement had already been reached between the partieson the fines recorded by Court."
The emphasis is mine.
The second matter is this. On 10 June 1988 tpe Petitioner inS.C. Application No. 37 of 1987 filed a petition seeking toinclude two matters in the record, viz., that (1) "Counsel for thePetitioners submit that those who had not obtained the requisite•marks should not be included,"; and (2) "that the record beamended to include a provision that those who are not qualifiedfor selection would not be permitted to follow the course."
However, the record of the proceedings of the 6th of June wasnot amended.
. Dayawathie end Pain's v. Dr. S. D. M. Fernando and othersSC ■ . J .• • (Amerasinghe. J.)359
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Thirdly, the Deputy Solicitor-General seems to have had theidea of the continuation of the course-for all the163 personswho had been originally selected lurking in the conscious or sub-conscious recesses of his mind. During the proceedings of theCourt on June 16th 1988, the Deputy Solicitor-General isreported in the record of the 'clarification proceedings' to havesaid:
" One has also to bear in mind the contents of the motion,which was filed soon after the judgment, which soughtclarification from Your Lordship whether 163 persons, whowere following the 1st‘Course continue to follow, thatcourse,, since 13 months have elapsed from thecommencement of the course and the course is to beconcluded in another three months time.
I would respectfully submit, that ! object to any steps toresile from this agreemeht." …
The motion recites the fact that there were 163 students whohad already followed the course for 13 months. But .the Courtwas not asked in that motion whether all the. 163 persons,eligible or not. who were following that course, couid continue tofollow the course. The motion was solely "for the purpose ofobtaining a clarification from. Your Lordships whether it would bein order tor the 1st and 2nd respondents to proceed with thecourse which has already commenced whilst a new course isstarted for those whose names were deleted on account of tradeunion.action"
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After the proceedings in Court on 6 June 1988 the Petitionersih S.C. Application 87/7 (probably fearing that the agreementto have a continuing course for those already selected might beconstrued to mean that all those following the course, whetherthey were qualified in terms of the Order of Court or not, mightbe permitted to continue to follow the old course}, through theirinstructing Attorney-at-law, Mr. S. M. Suhaid. wrote to the FirstRespondent the Secretary. Ministry of Health, on-6 June 1988)as follows:.
" When the above case was mentioned today (6.6.1988) theSupreme Court was informed that a frpsh course has
commenced on 1.6:1988. h was. also agreed betweenparties that those (who are qualified and had the requisitemarks) could continue to follow the old training course (thatis;the course which commenced on 1st April, .1987) butthat both groups would sit for a single common finalexamination.
You would appreciate that this concession only permitsyou. to accommodate only persons qualified to follow thecourse and that persons who have not obtained therequisite marks should definitely be dropped from the
course" (emphasis is his) "so as to fall in line with and giveeffect to the judgment in the above case. In this connectionI have to invite your attention to the lists prepared by yourMinistry and furnished to the Public Services United NursesUnion which contains the names of persons who arequalified to follow the course out'of those who wereselected initially and the names of persons who would bedropped from the course.
I trust that you would adhere strictly to the aforesaid'arrangement as I have been instructed to give notice thatany deviation on your part from the aforesaid arrangementwould compel my clients to apply to the Supreme Court tohave you dealt with for contempt."
When he received Mr. Suhaid's letter of the 6tirof June, on thesame day. the First Respondent wrote to Mr, M. S. Aziz, theDeputy Solicitor-General who had appeared for him in S.C.Application No. 37 of 1987, Mth copies to the Attorney-Generaland the Director-General of . Health Services, in the followingterms:-
Mr. Suhaid's letter suggests that we should drop out fromthe course which has run for 13 months, those studentswho are below the cut off point of the new batch..
It was our suggestion that the batch which was in trainingfor 13 months be aliowed to cbntinue their training for thebalance 5 months but sit .for the examination at the sametime as the new batch which commenced training on the1 st of June. -*
The 1as^ paragraph of Mr. Suhaid's letter speaks aboutmatters which may arise leading to contempt of theSupreme Court decision.
Therefore, I shall be glad to be informed of the position inregard to the old batch:'
Whether we can continue the entire batch in trainingwith'immediate'effect.
Whether we have to make any modifications in thebatch to continue this training."
Mr. ,M.. S. Aziz. Deputy Solicitor-General, on behalf of theAttorney-General, replied on 10 June. 1988 that the Court hadbeen informed that after discussions between the officials of theMinistry of Health and the Petitioners* representatives, it wasagreed that both the Old course and the new course wouldproceed and he concludes that
" Since the Supreme Court h^ been kept informed of thesteps we propose to take now (with its permission)regarding the Old Course consequent to the agreementreached, any action taken to proceed with the Old Coursecannot, in my view, be regarded as an act in contempt ofcourt. It, may nevertheless be open for the Court on anapplication made by the other.party to indicate that we'should not proceed with the. old course in view of thepresent situation. This would ultimately be a matter for thatCourt and one cannot state what its reaction will be." .
It is clear from the letter of the First Respondent to Mr. Azizthat he was not concerned with the question whether the old
. 362Sri Lanka Law Reports(1986J 2 Sri LR.
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course end the new course could be conducted. What he wantedguidance on were two precisely worded, specific mattersrelating, not to the rtiode of training, but to the eligibility of thoseto be admitted to the training facility, howsoever provided. Withregard to that matter the Deputy Solicitor-General offered noadvice. He merely stated in his letter of 10 June that in themotion for clarification it had been recited that there were 163students who were following a training course that had alreadyproceeded for thirteen months, and that he recalled that,although the Petitioners' Counsel in the proceedings of the 6thJ of June had said that only those who were eligible to be selectedin the old batch would be permitted to follow the old course, hehad responded that only persons eligible were selected and thatin any case that should not have been recorded as agreemehthad already been reached between the parties on the linesrecorded by Court.
What had been agreed between the parties and recorded bythe Court on .6 June. 1988 did not relate to eligibility. The Courthad already decided that and it was by no means attempting tovary its own order. It had no power to do so. (SeeGaheshanathan v. Vivienne Goonewardene and three others. 1^9)Moreover, it was. as it said of itself, functus, and could not.therefore, make any order. It was in these clarificationproceedings' merely providing a forum for the parties to work outan agreed method of implementing its Order.
Finding that the parties were at variance with each other andnot wanting to be drawn inttf controversy. On 16 June 1988 theCourt terminated what I have called the 'clarification- proceedings' in respect of S.C. Application No. 37/87. The ChiefJustice (with Atukorale and Tambiah, JJ. agreeing) said:
" We now see that differences have arisen in regard to whattook place before this Court on the 6th of June 1988. Asthe parties have not been able to agree as to what took -. place in Court, and as to why what was communicated toCourt on the 6th of June 1988 was so communicated; thisCourt does hot propose to continue any further in regard-tothis mattef and these proceedings'are now terminated."
If I may'say so with respect the Court took the proper step interminating these proceedings at that stage when there was adispute asi to what was supposed to have transpired. AsDharmadhikari. J. said in A T. K. Sahakari Sanstha, Nagour v.State gTMaharashtra. (36).
“ Jydges cannot be drawn into controversy over. suchmatters. It.is not consistent with the dignity of this Court andthe decorum*of the Bar that any course should be permittedwhich may lead to controversy…. Such matters are to bedetermined only by What is stated in the record of the Court.That which is not so recorded cannot be allowed to berelied upon giving scope to controversy. To permit theatmosphere of the Court to be vitiated by such controversywould be detrimental to the very foundation of justice."
On the day on which the Court terminated the 'clarificationproceedings', i.e. 16 June 1988, the First Respondent wrote toMr. M. S. Aziz, the Deputy Solicitor-General, as follows:
"I would be glad to be informed on the decisions madetoday in the Supreme Court oh this case how I shouldproceed.
Can I take back for training the.entire Batch which Batchwas suspended from training earlier by the Supreme Court.There is a lot of pressure from those following the coursethat the entire batch should be taken for training."
, On the same day. the Deputy Solicitor-Genera! wrote to theFirst Respondent in the following terms:
•
" The Supreme . Court today made order terminating theproceedings in S.C. Application 37/87. This means theJudgment of the Supreme Court and the agreementrecorded in the proceedings of 06.06.88 would determinethe position of the parties to this application. Thus, there isno objection to proceeding with the First course which wassuspended as a result of the Judgment of the SupremeCourt (which included nurses who were substituted in the.place of those whose names were deleted as a result ofTrade Union Action.)"
On the same day the First Respondent made a minute asfollows on the fetter of the Deputy Solicitor-General:
“ D.G..
Course to be commenced on Monday 20/6/88. Pfe3se,issue necessary instructions"
The Director-General, Health Services, to whom the minutewas addressed, by his letter dated 17 June-1988 instructed thePrincipal of the Post Basic Nurses,Training School in Colombo to"take, action to inform all students on the course which vyassuspended on* 25th April 1988 to report to the School and tore-start the course on Monday 20th June 1988."
The old training course re-commenced on 20 June but wassuspended by an Order of Court in S.C. Application No.' 109/88.
1 ' ’
On 11 July, 1988 the Petitioner in this case (who vyas one ofthe1 Petitioners in S.C. Application 37/87} complained to Courtthat the First Respondent (The Secretary to the Ministry ofHealth), the- Second Respondent (The Acting Director-General ofHealth Services) and the.Third Respondent (The Principal of thePost Basic Nurses Training'School) had by "re-opening and/orre-commencing and/or continuation of the said Post – BasicTraining Course which commenced on 01.04.87 were acting "indefiance" and that their action constituted "a refusal to obey theorder and judgment of' the Court and that they had thereby"committed contempt of the authority of’ the Court.
Upon reading the Petition and Affidavit of the Petitioner, andafter, hearing the submissions of Counsel for the Petitioner, theCourt ordered that a Rule be served on the First and SecondRespondents to show, cause why they should not be punished forhaving committed contempt of the Supreme;Court in thefollowing manner:
"(1) By re-opening and re-commencing on 20th June, 1988. the Post Basic Course for Training of Grade II Segment 'A'Nursirfg Officers (Hospital Services) which ‘ hadcommenced on 01.04.1987 which had been set aside by
the Supreme Court by its Judgment in Supreme CourtApplication bearing No. S.C.. :37/87 decided on25.04.1988. and. which had further directed that freshselections be made on the basis pf the marks obtained bythose who had presented themselves for the examinationswithout any disqualification being imposed upon them on.the ground of participation in any trade union actionbetween 18.03.1986 and 17.04.198.6, and by continuingto conduct the said Training Course from 20.06.1988 to25.06.1988 and by holding classes and/or lectures inrespect of the said Training Course, during the said periodat Mulleriyawa Hospital and at Kaiutara Hospital for thosewho had been selected for the said Training Course whichwas set aside by the said Judgment and thereby acting indefiance of the said order and judgment of the SupremeCourt and wilfully refusing to obey the same.
(2) By deliberately and wilfully neglecting and/or refrainingfrom ■ complying with the judgment and Order by theSupreme Court in Application bearing Wo. S.C. 37/87 ariddecided on 25.04.1988 by wilfully neglecting and/orfailing to make fresh selections for the Post Basic Coursefor training of Grade II Segment Nursing Officers as GradeI Nursing Officers (Hospital Services) and Grade I PublicHealth Sisters as directed by the said Judgment and Orderof the Supreme Court."
It was not disputed that after the Judgment of the Court inApplication No. 37/87 the Post Baeic Training C.ourse, whichhad commenced on 1 April 1987, was suspended forthwith. Thisis stated to be the case in paragraph 8 of the Petitioner's Petition-dated 11 July, 1988. Nor was it in dispute that, in accordancewith the decision Of the Court, fresh selections were made. Inparagraph 12 of the same Petition the Petitioner states that
" On 30.4:88. and on 05.05.88 the Ministry of Health-hadprepared a list of those who should be omitted from thesaid Post Basic Training Course and a list of those, whoshould-be newly selected, on the basis of- marks from andout of those who had been left out initially."
366Sri Lanka Law Reports -(1988) 2 Sri L. R.
i—..»-'■—■1:
In paragraph -13 of the Petition, the Petitioner states that"photocopies of the said lists -were handed over to Rev.Muthetuwa Ananda Thero, President of the United PublicServices Nurses Union, by Dr. Joe Fernando, Director of HealthServices ', the Second Respondent in this case. Copies of theselists were annexed to the Petition. '.
What was the purpose of preparing these new lists? ThePetitioner in Paragraph 14 of her Petition explained that "the saidlists were prepared by the Ministry of Health for the purpose ofcommencing a new Post Basic Training Course on the basis ofthe marks obtained in order to give effect to and comply with theJudgment of Your Lordship's Court in the said case No. 37/87."
On the basis of the admissions made in the Petitioner's ownPetition that the Respondents had made fresh selections for thePost Basic Training Course in order to give effect to and complywith the judgment of the Court, the second charge in the Ruleissued in these proceedings must fail.
The first of the two charges, in the Rule issued on theRespondents isthat by continuing to conduct the training coursefrom 20.06.4 988 to 25.06.1988 "for those who had beenselected for the said training course and which was set aside "byOrder of the Supreme Court", the Respondents were "acting indefiance of the said Order and Judgment of the Supreme Courtand wilfully refusing to obey the same."
' The gravamen of the change is not that the old training coursehad been re-commenced, but that all those who had beenoriginally selected, whether qualified or not in terms of thedirections of the Court,.had been allowed to continue to followthat course. It is this part of the rule that bears most heavily onthe Respondents.
There was clearly a failure on the part of the SecondRespondtnt to comply with the order of the Court that only thosewho were eligible in terms of the marks obtained were to beadmitted to the training course,' for the Second Respondent inhis letter dated 17 June 1988 to the'Principal, Post Basic
Training School ordered the Principal to "take immediate actionto inform all students on the. course to report to your, school andrestart the course by Monday. 20th June 1988."
The minute , made by the 1st Respondent to the 2ndRespondent doe’s not specifically refer to the persons to beallovye'd to follow the course but'in a cryptic'manner,, merelyorders the re-comriTencement of the course. Ex facie, therefore, itmight have been argued that the First Respondent did not. in thedirections he gave, fail to comply with the Orderof Court whichsaid'nothing of the mode of training. Indeed; according to therecorded • proceedings-of the 6th of June, the Court, hadexpressed no objection to the continuation of the old course. TheSecond Respondent took the minute to be an order that allstudents who were following the old course should besummoned, to continue the course. He probably misunderstoodthe opinion of the Deputy‘ Solicitor-General who, somewhatambiguously, said in his letter of -16th June to the First'. Respondent that that "there, is no objection to proceeding withthe first course which was suspended as a result of Trade Unionaction." The course that was suspended and with regard to■which he was required to issue instructions was, it seems, takento mean the course, not merely, in the sense of form and content,but in the wider sense of those following it as well. The course,lock, stock and barrel. .’“
The First-Respondent, however', did not in his Affidavit of 30September, 1988, filed in these proceedings, specifically denythe Petitioner's-complaint in paragraph 25 of her Petition;of 11July 1988 that the Respondents, including the First Respondent,
■ were making a/rangements to'continue the Post Basic TrainingCourse which commenced on1 April, 1987 "for all those whohad been selected for the said course and without compliance, ofthe said Judgment of Your Lordships'Court.’"
Not was it argued on his beha.if that the First Respondent had'no intention of recommencing the course for'all those who hadfollowed the earlier course. The First Respondent,'quite properlyin my view, did not seek to take shelter behind technicalities but,-instead, took his stand on the ground that in doing what he did,he did not act in contempt of this Court.
The question to be answered then is whether by re-commencing the course for all those, who were participants inthe old course, regardless of their eligibility as determined by theCourt in its Order of 25 April 1988. the First Respondent and theSecond Respondent were guilty of contempt of court. Were they,as they are charged, acting in "defiance" of the "Order and.Judgment of the Supreme Court and wilfully Refusing to obey thesame"?
The charge has. in my view, been correctly framed, for a merefailure or even refusal to abide by the decision of a Court doesnot, without more, constitute a contempt of Court. Whether therehas been a contempt by reason of the failure to comply with thedecision of a Court depends on the circumstances of the case,including the nature of its Order.
Mr. H. L. de Silva, P.C.. on behalf of-the Petitioner, urged thatwhere the Supreme Court, in the exercise of the jurisdictionconferred upon it by Article 126 of the Constitution, hears anddetermines any question relating to the infringement or imminentinfringement by executive or. administrative action of anyfundamental right or language right declared and recognised byChapter III or Chapter IV of the Constitution, the Order of theCourt ought to be enforced through contempt proceedings interms of .the power conferred on the Supreme Court by Article105(3) pf the Constitution.
Article 105(3) of the Constitution says that
" The Supreme Court of Jjie Republic of Sri Lanka and theCourt of Appeal of the Republic of Sri Lanka shall each be asuperior court of record and shall have all the powers ofsuch court including the power to punish for contempt ofitself, whether committed in the court itself.qr elsewhere,with imprisonment or fine or both as the court may deem'fit'….."
I am unable to accept without qualification the submission otthe learned President's Counsel appearing for the Petitioner.
In order to establish Contempt of Court, in the words of LordRadcliffe in F&ginaltf Perera v. The K7ng.(50)
'There must be involved some act done or writing publishedcalculated to bring a Court or a Judge of the Court into contemptor to lower his authority or something calculated to obstruct orinterfere with the due course of justice or the lawful process ofthe Courts. See/?egr. v. Gray ed
This does not necessarily happen where a person has failed toor refused to obey an ordinary, non-coercive order of court.
Bertram, C.J. in Ismail v. Ismail (43) said that,"non-compliancewith the judgment of a Court is not, in ordinary circumstances’, a •Contempt of Court."*
Where the Order of Court is declaratory, i.e. where it is adecision merely expressing publicly, in formal and explicit terms,the rights and obligations of the parties concerned, -a failure toabide by such an order would not, in my opinion, without more,amount to a Contempt of Court. (See Borrie and Lowe's, Law ofContempt, 1983, 2nd Edn. at p. 418). In Webster v. SouthwarkLondon Borough Council. (52) following Idndley, L.J. in Seawardv. Peterson. Forbes, J. said (53)’-
" I readily accept the proposition thatwhere a Court makesonly a declaratory order it is not contempt for the party
affected by the order to refuse to abide by it."
* • •
Indeed, even if the Order of the Court is more than merelydeclaratory, the failure, or even refusal, to comply with it doesnot necessarily, by itself, constitute a Contempt of Court-. InAmarasekera v. Goonewardene, (54) a Police Magistrate haddirected the Respondent to abate a nuisance by removing a kilnto the furthest distance possible from the house or break.it down./The Appellant stated aloud: "I will neither remove the kiln norbreak it down." Ennis. J. (at p. 53) said :•
r
" Now, if the. appellant said this in open. Court in ahoffensive or contemptuous tone, he certainly deservedpunisTYment and he rendered himself liable to punishment.But the Magistrate called upon him to shovcaus£why he should
not be punished for contempt not for the tone adopted by.the. appellant but for refusing to obey the Order appealedfrom imposing a fine of Rs. 100.for Contempt of Court. Hadthe complainant accepted the Order of Court andundertaken to obey it, he would have practically sacrificedhis right of appeal. This he was not bound to do and by themere refusal to obey the order referred tp, it can hardly besaid that he became liable to be punished for Contempt ofCourt." •
By no means dops this imply that the Orders of a Court can bedisregarded. An Order of a Court, even one that is irregularlyissued, must be obeyed by the party affected until the Order bedischarged, (Per Macdonell. C.J. In the Matter of a Rule on A.F.Molamure, (55) following Silva v, Appuhamy. (56). Any personwilfully disobeying such an order is liable to be punished forContempt of Court. (Per Macdonell. C.J.m Molamure's case,(supra) at pp. 50 fin. fr 51). Moreover, there is it seems.-.a speoialduty cast on public officers to comply with the orders of .court.Tuli, J. in Parkash thand v. S.S. Grewal, (37) 'Punjab andHaryana High Court, (Full Bench) at paragraph 5 of the judgmentof the Court-explained the expectations of the law in thefollowing way:
If any party to the proceedings considers that any Courthas' committed any error, in the uaderstanding of the law orin its application, resort must be had to such review orappeals as. the law provides. When once an Order has beenpassed which the Couft has jurisdiction to pass) it is theduty of air persons bound by it to obey the Order so long as. it. stands, arid it would tend to the subversion of orderlyadministration ahd civil Government if parties could disobeyorders with, impunity. If such- is the position as regards-private parties, the duty is ail the more imperative in thecase of Governmental authorities, otherwise there would bea conflict between one branch of the State polity, viz., theexecutive and .another branch' — the Judicial. Ifdisobedience could go unchecked, it would result in Courtsceasing to have any meaning and judicial power itselfbecoming a mqckery. When the State Government obeys a
SC ■ Dayatoatfiie end Peiris v. Dr. S. D. M% Fernando and others (Jameel.J.) 371 .
k'.,
__ : ■ *—. .. .law. or gives effect to an order of a Court passed against it.
– it is not doing anything which detracts from its dignity, butrather, invests the law and the courts with the dignity whichare their due, which enhances the prestige of the executiveGovernment itself, in a democratic set up."
Attention might also be drawn to the observations of Nerula, J..-in Raghuhath v. F* Sahai. W^ paragraph 10, where he said asfollows: 4
“ Counsel-then referred to:the Judgment of the JudicialCommittee t Eastern Trust Co. v. Mckenzie Mann & Co:Ltd., (57). |n that case jt was held that it is. the duty*of theCrown and of every branch of the Executive to abide by and.,obey the law and that if there is any difficulty in ascertainingit. the Courts are open to theCrpwn to sue. and it is theduty of the Executive in cases of doubt to ascertain the law,in.Order to obey it, and not to disregard it."
Although a failure or refusal to obey a merely declaratory orderwill not by itself, without more, expose a person to an action torcontempt, yet, where, in the circumstances-of a case! justicedemands that such an order should be enforced, the court hasan inherent jurisdiction to enforce such orders. {See per Forbes.J. in Webster v. Southwark LB C.. (52). in Webster's case, theCourt found {see p. 224) that, although it had made adeclaratory order .rather than issue an injunction or affordcoercive relief because the .defendant was .a responsibleauthority and it was “thought inconceivable that a declaratoryorder would not. result in the plaintiff obtaining his rights", yetthat authority had in consequences of the.manner in which it hadtreated the order of the Court, "forfeited all right to be regardedas a responsible authority so far as the Courts are concerned:" Insuch exceptional circumstances. Forbes. J. said {at p. 226) that aCourt could not "just stand by and confess that it was powerless"and'decided that the' writ of sequestration in that-case was"properly sought and properly given."-
• -———— ■■
of a Court. Certainly, with regard to cases where the lawexpressly provides for the execution of decrees, separateproceedings, such as Contempt proceedings, should not beresorted to give effect to an order.of a Court. This was clearlyindicated by Bertram, C.J. in Ismail v. Ismail. (43)
. Even if there is no process in law to execute a particular order,and there is in my opinion no such process prescribed by law togive effect to the orders of the Supreme Court made in theexercise of its jurisdiction conferred upon it by Article 126 of theConstitution in its determination of questions relating to theinfringement of imminent infringement by executive oradministrative action of any fundamental right or language rightdeclared and recognized by. Chapter III or Chapter IV of theConstitution, it would. I/think, be improper to use Contemptproceedings as a lever for obtaining such execution (see per BalRaj Tuli.-J. in delivering the Judgment of the Full Bench of thePunjab and Haryana High Court in Pafkash Chandv. S.S. Grewaland Others. (37) $ee a|so Raghunath Rai: v P Sahai andanother, (42) 0f to do duty for other measures. (See perHidyatullah, C J. delivering the Order of the Court in DebabrataBandopoadhvay and others v. the. State of West Bengal andanother. (4w-
Perhaps it may be advisable in cases where the law does notprovide for the execution of an Order to. ensure that the partyaffected gives an undertaking to comply.with the order, for .thenthe failure to honour such an. undertaking would, I think, entitlethe other party to legitimately use contempt proceedings toenforce the order, even though the undertaking may not beembodied in the Order. (Cf. CJ.F. De Alwis v. L C.,
Rajakaruna. (58) following In Re P. K. Ensa, (59).
* :
What, is the position where, a party who has given, noundertaking to Court refuses to or otherwise fails to complywitha declaratory order ..of Court made in the exercise of thejurisdiction given in terms of Article 126 of the Constitution? Theparty concerned ought, in my opinion, to go. back to Court andseek an injunction to enforce the order of the Court. (See per
Focbes. J. in Webster v. Southwark. London BoroughCouncil, (52).
Once such a coercive order is obtained, the obligations andrights of the parties are placed on a different footing. There isthen a most solemn and authoritative order of the Court whereevery diligence-must be exercised to observe the order, of theCourt and to obey"it to the letter, strictly in terms of the order ofthe Court. (See per Kindersley. V.C.. in Hardings v. Tingey, (60)Spokes v. Banbury Board of Health. (1865) LR (42 at 48) andHowitt Transport v. Transport and Genera/ Workers' Union. (61)referred to with approval in Borrie and Lowe's.Law of Contempt1987, 2nd Edn. at p.394. See also In Re S.MA. Cader andanother, (45) and Perera vr Abdul. Hamid (62). fn suchcircumstances there is. I believe., no need to show that theperson charged with contempt was intentionally contumaciousor that he intended to interfere with the administration of justice.(Borrie and Lowe's Law of Contempt, 1983 2nd Edn., p. 400:per Sachs, L. J., in Knight v. Clifton. (63) add Stancombe v.Trowbridge U.D.C: (64) cited with approval by Lord Wilberforcein Heaton's Transport. (St. Helens) Ltd. v. Transport and GeneralWorkers' Union (65).
Under Rule 31 of the Old English Rules of the Supreme Court;an act of disobedience would become an act of contempt only ifit was "wilful". "Wilful” was taken'to mean that while, where theterms of an injunction were broken it was not necessary to showthat the person was intentionally contumacious, or that heintended to interfere with the administration of justice, yet wherethe failure or refusal to obey the order of Court was casual oraccidental and unintentional, it will "not be met by the full rigoursof the law". (Borrie and Lowe s. Law of Contempt (supra) atp. 400-401 following Lord Russell, C.J.1 in Fairelough & Sons v.Manchester Ship Cana! (No. 2) of 1897 41 Sol. Jo. 225).
Although Rule .5(1) (which is the corresponding provision inthe English Rules .of the Supreme Court of’1965 which, came .into effect on 1st October 1966) omits the word 'wilful' befdre. 'disobeys', the liability for the disobedience of an»injunction has
374Sri Lanka Law Reports. [198812 Sri i. iff.
■■—■■» -_■■ — i
not become strict and absolute. The omission of the word 'wilful'may have made it easier to establish a prima facia case ofContempt, but disobedience which attracts commitment orsequestration continues in practice in the United. Kingdom to berequired to be disobedience which is not casual, accidental andunintentional. See per Lord Wilberforce in Heatons Transport (St.Helens) Ltd. v. Transport and General Workers1 Union. (65).
In the matter before us the Prder of the Court was of a mixednature. It was partly declaratory in nature when it was formallyannounced that the petitioners had been discriminated againstand the selections made were set aside. It is this part of the Orderthat has been disregarded and gave rise to these proceedings.The Order was also partly mandatory, in that, in terms it gavedirections and instructed the Respondents, in SiC. ApplicationNo. 37 of 1987 to make fresh selections on the basis of themarks obtained by those who presented themselves. It was partlyprohibitive in that it ordered the Respondents to refrain fromimposing disqualification on the ground of participation in anytrade union activity between certain dates specified by the Court.
. The Respondents understood this perfectly well, and, for thatreason, made new lists of eligible persons in terms of the orderof the Court. In re-commencing the course for all those who hadbeen selected earlier, regardless of whether they were qualifiedor not in terms of the order of Court] there is no doubt that theRespondents disobeyedthe order of this Court. Whether they didso "in defiance" of the order of the Court and whether they were"wilfully" refusing to obey tfce order of. the Court and guilty ofContempt of Court is another matter.
Justice Tuli in Parkash Chand v. S. S. Grewal and others. (37)quotes with approval the following instructive words of ChiefJustice Dua of the Delhi High Court, in Gian Chand Bali v. L F.Singh. (67) on the nature of contempt proceedings:
" Contempt of Court it may be remembered, is a summaryprocess and has to be used only from a sense of duty andunder pressure of public interest. These summary powers, ifthey are ft> be .effective and are to uphold the dignity of
Court, must not be used too readily and toO frequently,without compelling reasons at the'instance of aggrievedlitigants who, more often than not, are inspired by a desireto utilise the machinery of these powers for enforcing theircivjl rights. These powers have to be used only in seriouscases where deliberate contempt is clearly established onthe part o^ the contemner. The great importance ofupholding the dignity, power prestige and authority of theCourts of Law and justice in a democratic society foundedon the Rule of Law and of implicit obedience to the ordersof the Courts, can be minimised only at the. risk of.Weakening the foundations pf our constitutional-seUip andcorrespondingly endangering , our' . very democraticexistence. This Court would, accordingly,, be failing in itsConstitutional obligation to ignore disobedience of its •orders or those of its.subordinate Courts, from any quarter. in this Republic, however high. But the usefulness of thispower necessarily depends on the wisdom. and. restraintwith which it is exercised… …. Contempt or Court it isundeniable, lies broadly speaking, . in despising of theauthority, justice or dignity of the Court, and the personwhose conduct tends to bring the authority andadministration of law into disregard or disrespect orinterferes with or prejudices the parties or witnesses, ortends to obstruct the Court in the discharge of.its duties, isnormally understood to be guilty of contempt: and it isequally undeniable that this Court would be quick to take alllawful steps against the guilty for vindicating the Court'sauthority."
After quoting those words from the decision of Chief JusticeDua. Justice luWmParkash Chand's case (supra) goes bn to sayat p. 688 as follows:
“ From the above discussion it is abundantly clear that theessence of the offence of contempt of court is wilfuldisobedience to any judgment, decree, direction, order or' writ of a Court and not mere inaction to give effect to it. The; conduct'of the alleged contemner must be wilful, showingdeliberate and conscious disregard of the Court's order or a
1 — 111
despising and disdainful attitude towards the verdicts of' Courts. It has to be remembered that contempt proceedings'cannot be resorted to by a litigant with a view to obtainingrelief in accordance With the order or decree in his favourbuf a serious note is to be taken of a disrespectful or'disdainful attitude of a person bound by the decree or orderwith a view to uphold the majesty. authority, and dignity ofthe Courts of Law."
• .
In Badoordeen v. Dingiri Banda et a/.. <68). Macdonell, C.J.expressed the view, obiter. that Contempt is not criminal unlessthe act punished per se constitutes a crime.
* ’ * •
Even if a contempt is not always a crime, it bears a criminalcharacter and. therefore, it must be satisfactorily proved:
Lord Denning, M. R. in Re Bramblewale Ltd, (22) said:
" A Contempt of Court is an offence of a criminal character.A man may be sent to prison for it. It must be satisfactorily.. proved. To use the time-honoured phrase, it must be provedbeyond reasonable doubt."
In Knight y. Clifton, (20), Lorc| justice Russell, following BeBramblewale(22) said:
" Contempt of Court, even of the type that consists in -breach .of an injunction or undertaking, is something thatmay carry penal consequences, even (oss of liberty, and theevidence required to establish it must.be appropriately;cogent."c*
In P. A. Thomas & Co,, v. Mould. (69) O'Connor J. said:'
"Where parties seek the power-of the Court to commit-people to prison and deprive them of their liberty there hasgot to be quite.clear certainty about it."
SC Dayawathie andPeiris v. Dr. 'S. D. M. Fernando and others (Jameel. J.) 377
• • •
This is also the view-of the Supreme . Court of India,Hidyatullah, C.J.. speaking for the Court, in OebabrataBandopadhyay v. State of West Bengal, said W )■
A question-whether there is contempt of Court or'not is aserious one. The Court is both the accuser as well as theJudge'of. the*accusatioa It behoves the Court to act'with' as.great circumspection as possible making all allowances forerrors of judgment. arTd difficulties arising from inveterate•practices in courts and tribunals: It is only when a clear caseof contumacious conduct not explainable otherwise^ arises,that the contemner. must be punished …. Punishmentunder the law of contempt, is called.for. when the lapse isdeliberate and ts 'in disregard of,one's duty and in defianceof. authority. To take action in an unclear case is. to make t(i.elaw of contempt do duty for other measures and is not to beencouraged."- '• '*. *‘ .
This elucidation of the law' was-; quoted with' approval byBarkbria. J. (who delivered the judgment of the Court) in S. AbdulKarim v. M. K. Prakashand Others. (34^ In that case Sarkaria. J..said:
■‘ •• •;■:>.; i-•.
" The broad test to be applied in such a case is, whether. the act complained'of was calculated to obstruct or’hadan. intrinsic tendency to interfere with the course ofjustice and the due a'dmihistr^tion of law. The standard ofproof required to establish a charge of 'criminal,contempt' is the same-as in any bthercriminal.proceeding..Human judgment is fallible and . j .-so long as a…. offiqer in the discharge of his official' duties acts -ingood faithand withoutany motive to defeat, obstruct.orinterfere with the due course of justice, the Courts will notas a rule punish him for a "criminal contempt". Eve.n if itcould be. urged that'mens rea. as such, is not anindispensable ingredient of the offence of contempt,, theCqurts are loath to punish a contemner; if the -act oromission complained of. was not wilful."….
In Ragunath Rai v.P. Sahai. (42) Nerula, J. said that:
" Whether in a particular case contempt has beencommitted or not. has to be decided in the light of thecircumstances of each case. While zealously safeguardingthe dignity of the Court, it is also to be borne in mind that it. is of equal importance that contempt proceedings should.not be abused and that utmost care must*be taken to avoidresort to such proceedings in such cases where such actionis not appropriate. Though disregard of a Court's-order mayitself amount to contempt even in the absence ofdisobedience, it would still be necessary, in my opinion, toprove in most cases, that even the disregard was wilful andnot bona fide.”
In continuing the old.course for all those who were originallyselected, the acts of the Respondents may have been 'wilful' inthe sense that they were not casual,, accidental orunintentional. However, in the light of the circumstances ofthis case. I am not satisfied that the Respondents acted with acpnscious and deliberate.disregard of the Order of Court.Their conduct was not consistent with a disdainful attitudetowards the Order of the Court.. They displayed acontemptuous indifference or disregard. They did not undulyneglect to pay attention to the.Order of the Court or treat it asbeing of no importance.. In the circumstances. I am notsatisfied that they were guilty of the defiance with which theyare accused. They acted' incorrectly. However, in my opinionthey did so on account of a misapprehension and not becausethey were actuated by any improper motive or deliberatedesign to thwart, impede. Obstruct or interfere with the courseof justice or the lawful process of the Court or to circumventor -defeat an Order of the Court- or to bring the Court intoContempt or lower its authority. (Cf. per Lord Radcliffe inReginald Perera v: The King. (pO) and per Sakaria. J. in S.Abdul Karim v. M. K. Prakash. (34).
The . decision of the Court has been of paramountimportance to the Respondents. The manner in which theyconducted themselves shows that. As soon as the Court had
given its decision, the course was stopped. Fresh selections werethen made in terms of the Order of Court. Being in some doubtas to whether the terms of the Order of Court permitted them tocontinue the old course and the new course side 6y side with a. new one. clarification was sought from Court by way of motion.These are. in my view, certainly not the acts of a person who.with disdain, thought that the Order of Court deserved scantattention. They are not the acts of a person who was defianttowards the Orders of the Court.
Having made fresh selections irr accordance with thedirections of the Court and having, in my view. properlyconcluded that two courses could be conducted side by side,one a continuation of the old course and the other a new one forthose who, had been earlier improperly excluded, the new coursewas commenced on 1st June 1988 — a fact which wa$commiJnicated by Counsel for the Petitioners and recorded byCourt. .. .
The Respondents, hdwever, directed that the old. course be re-commenced on‘20th June T988 and violated the Order of Courtby permitting all those who had been Originally selected, whetherthey were eligible or not in terms of the Order of the Court, tofollow the old course. They did so,, in my opinion, on account of amisapprehension of the advice they had sought and-obtained.from the Deputy Solicitor-General on the 16th: of June 1988.There had been, as I have stated before, some tentative thinkingaloud in Court during the proceedings'on the-6th June on thequestion of eligibility although wffat was recorded, as might beexpected, related only to the mode of conducting the course andthe method of examination. Yet. as far as Counsel in the casewere concerned, as we have seen, there was uncertainty, somuch so that a motion, albeit unsuccessfully, was made to rectifythe proceedings of the-Court on the 6th of June. ' –
When the First Respondent .in his letter to the Deputy Solicitor-General on 16th June. 1988 asked for advice brr "how I shouldproceed" and. specifically asked "Can I take back for training theentire Batch which Batch was suspended from training earlier bythe Supreme Court", the Deputy Solicitor»Qeneraf. on the. sameday. on behalf of the Attorney-General, after stating that theeffect of the termination of the 'clarification proceedings' meantthat .
the Judgment of the Supreme Court and the agreement: recorded in the proceedings of 06.06.88 would determinethe position of the parties to this application",
went on to advise as follows:,
" Thus there is no objection to • proceeding with the firstcourse which was suspended as a result of the Judgment of•- th$ Supreme Court {which included nurses who were
.. substituted in the place of those whose names were deletedas a result of Trade Union action}".
The Order to recommence the course was made on the letterof the Deputy Solicitor-General to the First Respondent. TheSecond Respondent interpreted the Order to mean that all thosewho had followed the earlier course were to be recalled tocomplete their course. The Respondents had no doubterroneously, but in good faith, supposed that that was what theywere at that time entitled to do in terms' of the legal advicesought and obtained from the Attorney-General.
Mr. H. L. do'Silva, P.C. maintained that whether in the case ofa public servant or a private person, the fact that ,a person hasacted on legal advice is not an answer to a .chargie of contemptbased on disobedience of an Order of Court. It is, he said, only amitigatory circumstance. ?•:
Mr. K. N. Choksy, P.C., however, argued that, not only waslegal advice a good defence, but that in the case of a publicservant who is required by the Establishments Code to consultthe Attorney-General on questions of law relating to his work, thefact of acting in accordance with the advice of the Attorney-General confers immunity on such an officer. Later, however,learned Counsel, finding himself in some distress, quite properly,I think, jettisoned the more burdensome part of his argument andproceeded to urge that the selecting of legal advice was relevantto the question <Jf good faith. •
Seeking and relying upon legal advice’ may. no doubt, berelevant in mitigation of Contempt, but it is not conclusive ofthe question whether there was Contempt. (See per Megaw. P.
• in Re Agreement of the Mileage Conference Group of the TyreManufacturers’ Conference Ltd.. ^0) Qopal Bose v. State ofBihar. (71)- However, in the circumstances of a particularcase, the fact that a. person has acted on legal advice, maysupport the contention that the party concerned had notwilfully disregarded.the-Order of Court. (See per Tuli, J. inParkash Chand v. S.S. Grewal. (37). "if the act or omission wasnot wilfpl, then it cannot be said that the officer acting in goodfaith on the basis of legal advice, has deliberately or wilfullydisobeyed the order of the Court." Per Dharmadhikari, J. in A.
' T. K.' Sahakari Sanstha. Nagpur v. State of Maharastra. (36).See also per Narula, J. in Raghunath Rai v. P. Sahai. (42).
I have said that in my view the Respondents did not aqtdefiantly but acted erroneously owing to a misapprehension ofwhat they were entitled to do in terms of the Order of the Courtplaced in the context of the clarification proceedings' and the' advice received from the Deputy Solicitor-General. As for thefuture, I must add that the Order of Court in S:C. ApplicationNo. 37 of 1987 remains an Order which must be strictlyobeyed and I trust that there will be an honest endeavour by allthese concerned, including the>Respondents, to -honestly .perform their obligations in terms of-that Order. All that I havedecided in this case is that theJDrder in S C. Application No.37 of 1987 has not been contumaciously disregarded. If it is, strictly complied with hereafter, adopting the words ofSterling. J. in Perthington and Others v. Adlib Club Ltd. (^®) I"should like to add that, "speaking entirely for myself, ( would■ find it impossible to say that it was not a contumaciousdisregard " And if there is. wilful and contumacious«disobedience of the Order of the Court the person who sodisobeys the Order of Court will be guilty of contempt andmust be punished. See ■ L Arumugasamy v. – L.'Kathirgampermpillai. (46) in such a case, it may not be of suchavail, even as a mitigating circumstance, ttfbt. a person .had
acted on the advice of lawyers. (Cf. per Diplock. J. in Re The.Agreement Between the Newspaper Proprietors’ Association. Ltd.And. the National Federation of Retail Newsagents. Sellers andStationers. (72). As a matter of justice; I believe the Petitioner isentitled to such an assurance on my part.
Learned Counsel for the petitioner urged that the absence- ofan apology was an indication of the contumacy of the.Respondents. An explanation that offence was not intended, withan expression of regret for any given or taken, may or may notassist a person charged with Contempt of Court. It would dependupon tfie circumstances of a particular ones. An unqualifiedapology may be an indication of bona fides. (See A.T.K. SahakariSanatha, Naggapr v. State of Maharastra. 1977 Cri. L.J. 1809,atp. 1819). On the other hand an insufficient apology,wHI be oflittle use. (See In the matter of a Rule issued under Section 47 ofthe Courts Ordinance on . P. Ragunpathy per Keuheman,S.P.J.)(73). The absence of an apology does not necessarily showthat the party, w^s stubbornly perverse or rebellious andinsubordinate or that he was wilfully disobedient. In DebrebrataBand o pa dhamy. and others v. The . Stateof. West Bengal and another,-(41) no apology had been made.Hidyatullah, C.J. said, at p. 193 paragraph 7. as follows:
" The second point which the High Court unfortunatelyplaced at the very forefront was failure to offer an apology.( and noted with great shqyv of motion that none was offered.Of course, an apology must be offered and that too clearlyand at the earliest opportunity. A person, who. offers a'belated apology runs the’ risk that it may not be accepted,for such an apology hardly shown the contrition which isthe essence of the purging of a contempt. However, a manma.y stake his all on proving that.he is not in contempt andmay take the risk ". •‘.
As in that.case,-it may be said in the matter before us. that theRespondents "ran the gauntlet of such risk and may be said■ to have faiity succeeded." (Per Hidyatullah, C.J. at p. 193). –
For the reasons I have stated I make order discharging theRules on the First and Second Respondents.
I make no order as to costs.
Rules discharged.
* 3. Had the old course been continued, or had a hew codrsebeen commenced, for' .the "disqualified" persons, soon after25.4.88, this would necessarily have been in deliberate and"wilful” violation of the first limte of the Order, and thus-acontempt. However,, the old course was suspended, and those"disqualified" were identified, with a.View to exclusion from thetraining course.'! That Order did not prohibit, for ever, theconducting of a training course for-the "disqualified", persons: itwould have1 been quite proper, for instance, if there werevacancies and after an appropriate selection process, to haveselected; some or ali of them fpr another training course at afuture date.''However, the resumption of the "old" course oh1.6.6.88* after an. eight week suspension;;was not, on that baste,and woiild Have been an attempted circumvention of the Order!and thus S'contempt! but for the intervening events.