P L D 1965 Supreme Court 28 (PLP)

CORNELIUS, C. J.‑Syed Mohsin Tirmizy, substantive holder of a post of District and Sessions Judge in the judiciary of the Province of West Pakistan, appeals as of right against a judg ment of a Full Bench of the High Court of West Pakistan finding him guilty of "a contempt of the grossest kind" and imposing upon him a sentence of imprisonment till the rising of the Court and a fine of Rs.2,

000. The appellant had suffered the misfortune of being placed under disciplinary enquiry subject to the West Pakistan Govern ment Servants (Efficiency and Discipline) Rules, 1960, by order of the Provincial Government, made at the instance of the High Court. As a matter of interest, the charges referred against him, which were in writing were based upon the following causes of dissatisfaction, viz. :‑‑ (1) that he deliberately absented himself from his station, namely, Rawalpindi, at a time when a High Court Judge was there for the purposes of an inspection of the judicial work of the district ; (2) that he had been responsible for delay in submitting annual reports ; and (3) that during the proceedings of a judicial conference some time before, he had made insolent observations, relating to one or more of the attending High Court Judges. Being called upon to show cause against the proposed enquiry, he wrote a letter to the Chief Secretary of the West Pakistan Govern ment asking (1) that he should be allowed to proceed from his station (Dera Ghazi Khan) to Lahore for a period of a fortnight, which should be treated as a period of duty, in order to write out his case in reply to the charges, and (2) for this purpose that he should be given copies of certain correspondence which had passed between the Chief Secretary and the office of the High Court concerning himself. The correspondence in question related to the following matters, viz., (1) whether he should continue in service beyond the 5th May 1963, (2) his transfer from Rawalpindi after completion of only 15 months out of the normal 36 months of tenure, (3) his being sent to a distant district in the middle of the hot weather, (4) the grounds for the enquiry against him, and (5) the proposal by the High Court "to appoint one of themselves," i.e., a High Court .fudge as Enquiry Officer. It was suggested that the proposal for his premature transfer as well as the proposal for the departmental enquiry followed upon the decision (presumably by the Provincial Government) that he should not be superannuated on the 5th May 1963, as had been proposed by the High Court. The letter closed with the following paragraph which contains the whole substance of the alleged contempt :‑ "I have faith that these essentially relevant documents will not be denied to an officer of outstanding record of honest and brilliant service, who has now to defend himself against mean machinations and malicious prosecution. I pray that this Government of strong and just rulers will not be a party to the un-worthy attempt at wreaking private vengeance through public offices. I invoke the protection of State's scepter of Sovereign authority, against all evil designers, howsoever high." When notice was issued to the appellant to show cause why he should not be committed for contempt by reason of the words used and the accusations conveyed in the above paragraph, the reply made by him was that while he held the High Court in great esteem to start with as a lawyer and later as a judicial officer, he submitted that there was no contempt involved which the High Court could punish in the jurisdiction which it purported to exercise, on the following grounds, viz :‑ (1) that the matter with reference to which the letter was written was not in any sense judicial but related only to an administrative function of the High Court; contempt could only be found where the authority of the High Court was disparaged or it was scandalised "in regard to its competence with regard to the administration of justice" ; l2) that he proposed to take the ground of malicious prose cution in his defence to the departmental charge and for the High Court to pronounce upon this matter in the contempt proceeding would prejudice the departmental enquiry ; and (3) that the words used in the offending paragraph could not be read as referring to the High Court. The learned Judges found that the fact of a person having a representation to make to any authority did not excuse the inclusion therein of an attack on the honesty or integrity of a judicial officer and the same principle was applicable when there was an attack on the "impartiality and fair‑mindedness of a High Court, even when acting administratively". The point as to the effect upon the departmental enquiry of a finding of contempt by reason of the paragraph in question apparently did not impress the learned .fudges, for it finds no treatment in their judgment. As to the argument that the High Court was not explicitly mentioned in paragraph 3, they expressed the view that there was no doubt whatsoever that the references were to the Court. Until lately, the jurisdiction to punish for contempt was exercised by the Superior Courts as Courts of Record by virtue of the British Common Law. Under the Constitution of 1962, however, express power is now conferred upon the Superior Courts by Article 123 to punish three types of contempt which are specified, as well as "any other thing, which by law constitutes contempt of the Court". One of the defined types is contempt by a person who "scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred. ridicule or contempt." In the face of these plain words which contain no qualification a to the capacity in which the Court acts, the argument based upon a division between the administrative functions of the High Cour and its judicial functions seems to lose all its force. Mr. Brohi arguing the brief for the appellant carried the point as far as it could be taken, but there is no question now, m view of the definition given to this particular class of contempt by the Constitution itself, that provided the reference is to the Court or to a Judge of the Court, as such Court or as such Judge, and it has the effect of scandalizing the Court, that is to say, lowering it in general esteem, or attracting to the Court or any Judge, feelings of hatred, ridicule or contempt, the contempt is established and immediately invites punishment. An attempt was made to argue that the administrative function is to be placed at a lower level than the judicial function because administrative orders are always subject to review and to be set aside by a Court, and the administrator enjoys no immunity such as that of a judicial officer. An administrator is a link in a long chain of delegated functions, and a subordinate administrative unit cannot claim greater sensitivity than that enjoyed by the Chief Executives of the State. This was said with reference to the fact that the appoint ment and removal of District and Sessions Judges is within the competence of the Provincial Government, and does not appertain to the High Court, and that in the particular case, the function of the High Court was that of an administrative unit subordinate to the Provincial Government, which had initiated the departmental proceedings, and had suggested that one of its Judges should hold the enquiry. Even according to this argument the function of the Judge of the High Court would be at least quasi judicial, and to say, as was attempted, that the High Court really had no jurisdiction either administratively or judicially in the matter is plainly impossible. It is clear enough that the attack was upon actions of the High Court as such Court. Mr. Brohi also touched upon the argument that the allegedly offensive expressions did not relate to the High Court, but that again seems to be a plainly untenable position. The proposal for a departmental enquiry had been initiated by the High Court, as had all the other proposals with reference to which the appellant required copies of correspondence. It was probably on the footing of the suggestion that the actions of premature transfer and initiation of departmental enquiry had followed upon the High Court's failure to obtain the Provincial Government's agreement to their proposal that the appellant should be super annuated on the 5th May 1963, that the accusations of "mean machinations" and "malicious prosecution", "unworthy attempt at wreaking private vengeance through public offices" and of being "evil designers", were levelled. There is not the slightest doubt that these expressions were used with reference to the High Court. It is equally undoubted that they possess a quality of condemnation of that institution, in the most unrestrained terms. They do not merely impute incapacity to do even‑handed justice. The imputations are in positive terms, and each one is an imputation of an evil characteristic, that is the very reverse of one or more of the essential qualities for the dispensation of justice through human agency. Something was made by Mr. Brohi in the argument of the fact that these imputations were contained in a letter sent under registered cover to the Chief Secretary, as if that might have some effect to minimise or perhaps even avoid the contempt. The Chief Secretary is the principal Administrative Officer of the entire ‑West Pakistan Provincial Government. A letter addressed to him was in fact a letter addressed to the Provincial Government itself. Apart from being responsible for providing the Province with a High Court fully qualified in all respects to carry out the highest judicial functions at the apex of the judicial system, and to maintain the High Court in a condition in which that capacity will always be ensured, the Provincial Government itself is a very considerable litigant before the High Court, not only as a party in ordinary litigation, but also by virtue of the High Court's power under Article 98 of the Constitution, read with the new chapter of fundamental rights, to bring all exercise of public power qua the citizen, under judicial review. In both respects, it is a matter of the greatest importance that the Provincial Government should retain confidence in the capacity of the High Court of the Province to discharge its duty according to the highest standards laid down in the Constitution. Direct imputation of (1) meanness, (2) intrigue, (3) malice in exercise of the power of initiating a penal proceeding, (4) using public power to wreak private vengeance and (5) `evil designs' is calculated to shake that confidence to its very foundations, There is no mutuality of obligation in any relevant respect between the appellant and the Provincial Government, as respects the functioning of the High Court. On the contrary, such mutuality clearly existed between the High Court on the one hand and the appellant himself, as a Judge in a subordinate capacity. Contempt s of his authority in that capacity fell within the jurisdiction of the High Court to notice and punish. As a par of the judiciary, he had a strong interest, and a corresponding duty, to maintain the dignity and majesty of the Courts, in particular of the High Court. It may be conceded that for an officer to be brought under a severe form of discipline is a traumatic experience. But the discipline was to be applied within the compass of his judicial service, and for him to react to the shock by showering unmitigated abuse upon the great institution at the head of the system of which he formed a part, was totally inexcusable. There is here a libel of the gravest character. As a contempt its truth cannot be pleaded. This is a sufficient ground for excluding the contention that the appellant proposes to raise the ground of "malicious prosecution" in his defence at the departmental enquiry. That he will do, of course, at his own risk, but in the light of contempt, whether there is any title of truth in the plea is wholly irrelevant. What he has said here is calculated quit clearly, to bring the High Court into scorn and disregard. It cannot be overlooked without jeopardising the maintenance of law and order through the agency of the High Court, for the supremacy and majesty of the law is inextricably linked with the dignity and authority of the High Court. The action of the High Court in taking judicial notice of the contempt, and after a hearing, visiting it with punishment was one which was both necessary and entirely proper. We dismiss this appeal. A. H. Appeal dismissed. P L D 1965 Supreme Court 33