1. The petitioner filed on July 17, 1989, this Contempt Case against the respondent. The office has raised the objection thus:

“It may be stated as how this contempt case is said to be filed in time,”

2. It is represented by the learned counsel that against the order of termination of the petitioner from service on October 17, 1981, Writ Petition No. 8692/81 was filed. By judgment dated January 19, 1985, the writ petition was allowed and the order of termination was quashed. Against that, Writ Appeal No. 361/85 was filed and by order dated November 20, 1987, the writ appeal was dismissed without much discussion, though after hearing both sides. The respondent carried the matter to Supreme Court in S.L.P No. 12714 of 1988 and by order dated February 20, 1989, the leave petition was dismissed. After dismissal of the appeal by the Division Bench, the petitioner has submitted a representation on June 24, 1988, followed by further representations dated August 12, 1988 and October 5, 1988, for implementation of the order. It evoked no response. Despite submitting his joining report on November 3, 1988 the petitioner was not taken into service. A legal notice dated December 8, 1988 was also issued to the respondent. Thus he represented with the endorsement that the contempt proceedings are within limitation. The office posted for orders of the Court. Notice was issued to the counsel for the respondent. Sri N.V Suryanarayana Murthy, learned counsel raised a further objection that in view of the fact that the order passed by the learned single Judge is merged in the order of the Division Bench which was upheld by the Supreme Court in the S.L.P, this Court has no jurisdiction to entertain the contempt application. If the remedy is available, it would be in the Supreme Court. In support thereof, he relied on Gojer Bros. (Pvt.) Ltd. v. Ratan Lal Singh (Shri)., (1974) 2 SCC 453 : AIR 1974 SC 1380. The first question, therefore, is whether this Court has jurisdiction to entertain the application for contempt under S. 12 of the Contempt of Courts Act (Act 70 of 1971), for short, “the Act.”

3. S. 12(1) of the Act provides punishment for Contempt of Court with simple imprisonment for a term which may extend to six months or with fine which may extend to two thousand rupees, or with both. “Civil contempt” defined under S. 2(B) means wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court. It is seen that the order of termination of the services of the petitioner was quashed in W.P No. 8692/81 by judgment dated January 19, 1985 for multiplicity of reasons and was confirmed in writ appeal. Special leave petition was summarily dismissed thus: “Special Leave is dismissed”. The immediate question is whether the order passed by this Court is merged with the order of the Supreme Court and thereby this Court is devoid of jurisdiction to entertain the proceedings for contempt for disobedience of the order. In U.J.S Chopra v. State of Bombay, AIR 1955 SC 633 : (1955 Cri LJ 1410) per majority, it was held that a judgment pronounced by the High Court exercising appellate or revisional jurisdiction after issue of notice to the parties and full hearing, its judgment replaces the judgment of the lower Court thus constituting that the judgment of the High Court is the final judgment “to be executed in accordance with law, by the Court below”. I.T Commr. of Amritlal Bhogilal & Co., AIR 1958 SC 868 held that if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law irrespective of whether it confirms, modifies or reverses the decision of the tribunal. In law, the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmation of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and the appellate decision alone is operative and capable of enforcement. In Shankar v. Krishnaji, (1969) 2 SCC 74 : AIR 1970 SC 1, in exercise of the revisional power under S. 115, C.P.C, the appellate order of the tribunal under the Bombay Rents, Hotel and Lodging House Rates Control Act, was confirmed. It was again challenged under Arts. 226 and 227. When in exercise of jurisdiction under Art. 226 setting aside the order was questioned, in appeal, the Supreme Court laid down the test that the right of appeal is one of entering a superior Court and invoking its aid and interposition to redress the error of the Court below. Two things which are required to constitute appellate jurisdiction are the existence of the relation of superior and inferior Court and the power on the part of the former to review decision of the latter. When the aid of the High Court is invoked on the revisional side, it is done because it is a superior Court and can interfere for the purpose of rectifying the error of the Court below, under S. 115, C.P.C basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense the revisional power. Therefore, the order of the appellate Tribunal merges with the revisional order and it cannot be questioned under Art. 226. In Gojer Brothers Case ((1974) 2 SCC 453 : AIR 1974 SC 1380) (supra) the same question had arisen in relation to the appellate jurisdiction when an amendment to the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, was made and the decree of the appellate Court was suitably modified taking the aid of the amendment. The question was, which is the decree that is executable. In that context, Chandrachud, J. (as he then was) held that where the decree of the trial Court is carried in appeal and the appellate Court disposes of the appeal after a contested hearing, the decree to be executed is the decree of the appellate Court and not of the trial Court. In Jowad Hussain Saiyid v. Gendan Chariar, AIR 1926 PC 93, the Privy Council while holding that the limitation of three years within which an application for final decree must be made runs from the date of the appellate Court, quoted with approval the statement of law in the decision under appeal and held that when an appeal has been preferred it is the decree of the appellate Court which is the final decree in the case. When the appellate Court passed the decree, it is that decree only that can be made final in the cause between the parties.

4. In Chidambara Nadar v. C.P.A Rama Nadar, AIR 1937 Mad 385, a Full Bench of the Madras High Court has held that Art. 182(2) of the Limitation Act, 1908, encompasses within its ambit both revisional as well as appellate jurisdiction. In Chappan v. Moidin, (1899) ILR 22 Mad 68, another Full Bench of the Madras High Court has held that the right of the appeal is one of entering a superior Court and invoking its aid and interposition to redress the error of the Court below. In State Of Madras v. Madurai Mills Co., Ltd. , AIR 1967 SC 681, Ramaswami, J. speaking for the Court held that—

“The doctrine of merger is not a doctrine or rigid and universal application and it cannot be said that whenever there are two orders, one by the inferior authority and the other by the superior authority passed in an appeal or revision, there is a fusion or merger of two orders irrepsective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. The application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction.”

5. The ratio in Kausalya Devi v. Land Acquisition Officer, Aurangabad, (1984) 2 SCC 324 : AIR 1984 SC 892 is not relevant for the purpose of the point in discussion. Therein, after remand by the Supreme Court, the Division Bench of the Bombay High Court has considered reopening the original Division Bench judgment which was set aside and the evidence which formed the judgment. When the matter was carried in appeal to the Supreme Court, it was held that the original judgment of the Division Bench the subject-matter of appeal in the first instance, after remand order passed by the Supreme Court, is non-existent and thereby the Division Bench cannot reopen the judgment which was set aside and cannot form the basis on merits in that regard. That point is not germane for the purpose of this Court.

6. In the light of the march of law, it is now well settled law that the criteria to decide whether the order of the single Judge is merged with the order of the appellate judgment, is the nature of the hierarchy of the forums provided. The power of the appellate authority is to correct the errors of fact or law committed by the inferior forum. Though all the Judges of the High Court are of equal status, for easy facility of disposal, appellate side rules are made and Cl. 15 of the Letters Patent provides right of appeal against the order of a learned single Judge to the Division Bench. The judgment of the Division Bench either confirming or reversing, after hearing the parties, the order of the learned single Judge merges with the order of the Division Bench. When the matter is carried in appeal to the Supreme Court, now there is a divergence of opinion as regards the doctrine of merger. One view is that though the leave application is summarily dismissed by the Supreme Court, the High Court Order, etc., merges with the Supreme Court order and another view is that it does not merge. Be it as it may, I am of the view that the better view is that the order or judgment gets merged with the order of the Supreme Court.

7. But still, the question is, which is the order that is enforceable under S. 12 of the Act. This Court, in exercise of the power under S. 23 of the Act read with Arts. 215 and 227 of the Constitution of India and S. 129 of the Code of Civil Procedure, framed the Contempt of Court Rules, 1980, for short, “the Rules”, published in the Gazette and became effective from March 26, 1981. R. 12 provides thus:

“Every case for civil contempt of the High Court shall be posted before the Judge or Judges in respect of whose judgment, decree, direction, order, writ or other process the contempt is alleged or before whom the undertaking was given in respect of which wilful breach was committed or before some other Judge or Judges as the Chief Justice may direct in case the Judge or Judges concerned is or are not available, for preliminary hearing and for orders as to issue of notice to the contemnor or contemnors as the case may be, if there is a prima facie case and for further hearing before them after notice, if issued. Upon such preliminary hearing, the Judge or Judges if satisfied that no prima facie case has been made out for issue of notice, may dismiss the petition.”

8. Rule 13 also provides similar power in respect of a civil or criminal contempt of a subordinate Court and the Court to take cognizance thereof and to follow the procedure provided in subsequent rules in the disposal of the contempt cases. This Court, thereby, while being aware of the doctrine of merger, have specifically made R. 12 to post the civil contempt of the High Court before the Judge or Judges in respect of “whose judgment, decree, direction, order, writ or other process” the contempt of wilful dis-obedince is complained of or before whom the undertaking was given in respect of which “wilful breach” was committed, etc.… The only exception is that when the Judge or Judges concerned are not available, then the Chief Justice has been empowered to direct the case to be posted before some other Judge or Judges to deal with the matter. Thereby, it is clear that it is the Juge or Judges whose judgment, writ, etc. are alleged to have been wilfully violated or in respect of which wilful breach was committed, has to hear and dispose of the contempt case unless the Judge or Judges themselves direct to post it before some other Court for reasons stated by the Judge or Judges. Thereby the rule itself provides a clue that despite the doctrine of merger and carrying the proceedings in appeal to the appellate forums either under Cl. 15 of the letters patent to the Division Bench or under Art. 136 of the Constitution, etc. to the Supreme Court, and the decision rendered thereon by the Division Bench of two Judges or a Full Bench of the Supreme Court, the Judge or Judges has/have power and jurisdiction u/s. 12 of the Act. The reason is obvious. In an appropriate case, contempt may be in the nature of execution. For execution of a decree, despite the decree of the trial Court gets merged with the decree of the appellate Court either in first appeal or second appeal or the Supreme Court, the decree of the higher superior Court is the executable decree. It is executable in the Court of first instance. “Decree” is defined in S. 2(2) of C.P.C to mean, the formal expression of an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. Even rejection of a plaint and the determination of any question within S. 144, is also declared to be a decree, but exclusion has been made in respect of any adjudication from which an appeal lies as an appeal from an order, or any order of dismissal for default. In the real sense, the order, judgment, decree, writ, direction, etc. issued by a single Judge may comprise of several facets. In the proceedings arising under writ jurisdiction under Art. 226, the learned single Judge may give in the first instance some positive direction or order for compliance by the respondent or observations to be adhered to before taking any further action or decision by the respondents; or an undertaking may be given by the contemnor. In a case where the matter is carried in appeal and the Division Bench merely confirms the order or writ or direction or observations without any modification, then while implementing the order, it is the observations or the directions, etc., as originally issued by the learned single Judge and confirmed in appeal, constitute the basis for wilful disobedience or wilful breach for initiation of the proceedings for contempt. In such a situation, in my respectful view, it is the learned single Judge that can take cognizance of the proceedings for contempt and take further steps as provided under the Act and the Rules. Take an instance, on appeal, the Division Bench might not agree with the reasoning or directions or observations made, but it may reach the same conclusion with different reasoning, direction or observations, then for the purpose of initiation of proceedings for contempt, it is those observations, directions or reasoning, if they are wilfully disobeyed or wilful breach is committed, and it is the Division Bench or the Full Bench that constitutes the proper forum to take cognizance and to pursue follow up action. Take further instance, that when the matter is carried in appeal to the Supreme Court, the Supreme Court may disagree with the Division Bench and may agree with the reasoning, observations or directions of the learned single Judge. Then it is the order or direction of the single Judge that forms basis. Or the Supreme Court itself may make further observations or give directions. If the breach of wilful disobedience complained of is against the observations or directions of the Supreme Court then it would constitute cause of action for initiating the proceedings for contempt, before the Supreme Court. If the directions, observations, etc. of the Division Bench are disobeyed the contempt proceedings can be laid before the Division Bench. It is to be seen that S. 19 provides appeal to the Division Bench against the order in the contempt proceedings of the learned single Judge and a further appeal to the Supreme Court. When the statute provides right of appeal, if the contention of the learned counsel is given credence to, then the appellate forum provided under S. 19 is rendered nugatory. It is also to be further seen that the rules of procedure are only step in aid or hand-maid for rendering substantial justice and the procedure would be not an end in itself but be tailored to meet the requirement of the law. Moreover, the petitioner who complains of wilful, disobedience or breach of the orders of the Court issued under Art. 226, is relegated to pursue the remedy in the Supreme Court, the party would be needlessly mulcted with heavy costs or gives up the remedy due to indigency and thereby prevent the party to redress the injury. Thereby, the contemnor, with impunity, would get away with his contumacious conduct to deliberately or wilfully disobey the order issued by the single Judge or the Bench of two Judges of the High Court or commits wilful breach of the undertaking given. Take for instance the case on hand. The order of termination of the services of the petitioner was merely quashed. As a consequence, in the eye of law, there is no order of termination and the respondents are obliged to reinstate the petitioner into service with all consequential benefits and to allow him to continue in service till he attains the age of superannuation or until any other event that may legally or otherwise arise. If the respondents refuse to reinstate the petitioner into service, necessarily the petitioner has to initiate proceedings for contempt, as it amounts to wilful disobedience of the writ absolute issued by the learned single Judge. The Division Bench and the Supreme Court merely confirmed the orders of the learned single Judge without any further direction or observations. Thereby it is the writ absolute that was issued by the learned single Judge which is complained of wilful disobedience would constitute cause of action to initiate proceedings under S. 12 of the Act and the Rules. It is already held by the Supreme Court that the doctrine of merger is not a rigid or absolute or inevitable rule. It has to be tailored with reference to the facts and circumstances and situations. Thus considered, I am of the considered view that despite the operation of the doctrine of merger, proceedings for contempt could be initiated before the single Judge or Judges of a Division Bench whose orders, directions, writ etc. are disobeyed or wilful breach is committed, etc.

9. The question then is whether the proceedings are barred by limitation? It is no doubt true that S. 20 provides limitation for initiation of actions for contempt which reads thus:

“No Court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed.”

10. A reading of S. 20 manifests the legislative animation that the proceedings for contempt of Court shall be initiated as expeditiously as possible within a maximum period of one year and the cut off period of one year has been given so that thereafter, though contempt punishable under S. 12 may continue to subsist, it may not be expedient to initiate the proceedings. The phrase “no Court shall initiate……” is indicative of the legislative animation to the above effect. The reasons are that the contumacious or recalcitrant conduct of the contemnor will have deleterious effect on the efficiency of the rule of law and to stem such tendency in its bud the proceedings should be dealt with as expeditiously as possible, so that the efficacy of rule of law would have a longing effect on the party to the proceedings and the general public. The legislature is also aware of the existence of the limitations provided in the Limitation Act, 1963 and also in the Code of Criminal Procedure regarding laying of prosecution for offences mentioned in Chapter 36.

11. In A. Ratnamanikyam v. K.S.R Sarma, (1988) 2 Andh LT 644 I have considered the scope of S. 20 as to when the limitation begins to run. It was held that the preamble of the Act itelf indicated the prescription of limitation on the power of the Court to punish for contempt of Courts and to regulate the procedure in relation thereto. The prescription of limitation does not mean that the Court ceases to have jurisdiction but prohibits to take action for contempt after the expiry of one year. It merely bars to take further action though the act continues to subsist. Thereby it puts an embargo on the exercise of power by the Court initiate proceedings for contempt of its authority. The reason for expeditious initiation is that the delay defeats justice and promptitude vindicates majesty of justice. Prescription of limitation being a procedural law, the Parliament, by an ordinary law under the Act, is entitled to regulate the procedure to initiate the action for contempt of the High Court and Supreme Court and as a facet thereof, prescribed the limitation of one year under S. 20. It is also held that the exercise of jurisdiction to. punish for contempt commences with the initiation of proceedings for contempt whether suo motu or on a motion or a reference. The principal actors in this play are the Court and the contemnor. The initiator is only a side actor and the prologue to the drama is the issue of notice under S. 17. The prescription of the period of one year has to be reckoned from the date on which notice under S. 17 has been issued. In paragraph 15, it is also held that if a date is fixed by the Court itself to comply with the order or direction, then the limitation begins to run from the next date after its due service on the contemnor. Once the limitation starts running, it continues to run its course unless its running is suspended by an order of the Court. From the date of its start, the limitation has to be computed to the date of issue of notice under S. 17. If the period of one year expires by the date of issue of notice, obviously the jurisdiction of the Court to initiate proceedings has been barred by operation of S. 20. The object of contempt is to uphold the dignity of the Court and to prevent the tendency on the part of the contemnor to avoid obedience of law. In other words, it should see that the efficacy of the rule of law is subserved. It was also held that the limitation provided under the Limitation Act, 1963 or in Chapter 36 of Code of Criminal Procedure, 1973, is unavailable to compute the period of limitation. On the facts in that case, it was held as there is no time limit fixed, the limitation begins to run from the date on which the order was received by the respondent and action was not taken as directed in the writ petition. Accordingly it was held that it was within limitation.

12. It is seen that Cl. 15 of the Letters Patent accords right of appeal to the aggrieved person against the order, writ or direction issued by a learned single Judge to a Division Bench of two Judges. It is also well settled law that on mere presentation of the appeal, limitation does not stop running unless there is an order by the Division Bench suspending the operation of the order appealed. This is explicit under O. 41, R. 5(1), C.P.C which postulates that an appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of the decree. Therefore, the limitation when it begins to run it continues to run its course unless it is stayed by the appellate Court. It is already seen that the limitation begins to run from the date fixed by the Court for compliance after due service or in its absence R. 21 of the writ rules comes into vogue. It says that “unless the Court otherwise directs, the direction or order made or the rule absolute issued by the High Court shall be implemented within two months of the receipt of the order.” Admittedly the appellate Court has stayed the proceedings. Therefore, running of limitation till the disposal of the appeal by the Division Bench has been suspended by operation of the stay granted by the Division Bench. There is no clear record whether the Supreme Court has granted any stay. Therefore, the limitation shall be computed, if the order is not again stayed by the Supreme Court from two months after the date of receipt of the judgment of the Division Bench. The petitioner, thereafter, has a right to initiate the proceedings for contempt of the Court in case the respondents do not implement the writ absolute. It is for the petitioner to explain when the S.L.P was filed in the Supreme Court and whether any order of stay granted by the Supreme Court to be in force till February 20, 1989 the date on which the appeal was dismissed. The petitioner has to explain these facts and then it is to be considered whether the contempt proceedings are within time of one year. It is stated across the bar that the respondents have implemented the order by reinstating the petitioner into service. The decision of the Division Bench in the Advocate General, A.P v. Aradhi Subba Rao, 1975 Andh Pra HC Notes 197 is of no assistance to the point. It is on merits. Thus I answer the objections. Office is directed to number the contempt case and close it as it has been complied with.

13. Order accordingly.