Central Administrative Tribunal - Delhi
(Service Of All Notices On The vs Shri B.N. Vaish on 28 June, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI CP No.61 of 2004 IN OA No.1207 of 1990 Orders reserved on : 28.5.2013 Orders pronounced on : 28 .06.2013 Honble Dr. Dharam Paul Sharma, Member (J) Honble Shri Sudhir Kumar, Member (A) Late Shri B.K. Pathak, Through Legal Representative Smt. Rukmani Devi Pathak, W/o Late Shri Birender Kishore Pathak, r/o 1, East Guru Angad Nagar, Patpatganj, Delhi-110092. (Service of all notices on the Applicant Counsels following address: Satya Mitra Garg, 113-C, DDA, Motia Khan, Jhandewalan, New Delhi-110055. ..Petitioner (By Advocate : Smt. Gargi Tuli) versus 1. Shri B.N. Vaish Director, Delhi Health Services, Karkardooma, Delhi-110092. 2. Shri Manoj Chauhan, Joint Director, Directorate of Indian System of Medicine & Homeopathy, Tibbia College Campus, New Delhi. (Service of all notices to the respondents on the above addresses) (By Advocate : Smt. Avnish Ahlawat with Shri N.K. Singh) Respondents O R D E R Dr. Dharam Paul Sharma, Member (J) :
Consequent upon the Order of the High Court of Delhi dated 30.8.2010 in WP (C) No.6530/2005, CP No.61 of 2004 is hereby taken up for consideration afresh on its own merits.
2. The case has had a chequered history and the same would be referred to the extent to which it is considered necessary for consideration of CP No.61/2004, as referred to above.
3. CP No.61/2004 was filed sometime in February 2004 praying for initiation of contempt proceedings against the respondents for not paying the full arrears of salary to the late husband of the petitioner and his legal heirs in spite of the order dated 31.7.1992 passed by the Tribunal in OA No.1207 of 1990, order dated 26.2.1996 passed in CCP No.227/95 and order dated 11.10.2001 passed by Honble Supreme Court in CA No.213/1999.
4. OA No.1207 of 1990 was disposed of by this Tribunal, following the ratio in the Tribunals judgment dated 25.10.1991 in Smt. Nirmal Rais case, with the directions to the respondents to treat the applicant as the employee of the Delhi Administration, who has been rendered surplus consequent upon the closure of the Sanatan Dharam Ayurvedic College with effect from April 1991. The petitioner shall be given alternative placement in the post in the Delhi Administration commensurate with his qualifications and experience, in accordance with an appropriate scheme to be prepared by them, as directed in Smt. Nirmal Rais case.
5. There is a dispute between the parties as to the implementation of the last direction only, viz. the petitioner would also be entitled to pay and allowances for the period from the take over of the Management of the said College till he is given alternative job and all consequential benefits. As regards the other parts/directions of the Order are concerned, the parties are at consensus ad idem that the same stand duly complied with.
6. CCP No.227 of 1995 in OA No.1207/1990 was disposed vide order dated 26th February, 1996, by clarifying that the petitioner should be granted back wages from the date on which actually the Ayurvedic College was taken over by the Delhi Administration and from that date he would be entitled for payment of back wages till joining the new post in March 1996. The respondents were directed to compute and pay the amount due to the petitioner within a period of two months from the date of receipt of that order. Feeling dissatisfied, the respondents preferred a Special Leave Petition in Supreme Court that was later on converted into CA No.213/1999. This Civil Appeal was dismissed vide order dated October 11, 2001 in view of the order dated 25.9.1997 in a similar matter for being an appeal against an order in the application for clarification of the earlier order. Since the respondent in the civil appeal Shri Birender Kishore Pathak had died during the pendency of the appeal and his legal representatives were not brought on record, the Supreme Court directed, while dismissing the appeal, that whatever amount was due to the deceased respondent in lieu of back wages would be paid by the appellant to the legal representatives of the deceased respondent within a period of four months, on an appropriate application being made to the government on this behalf. Accordingly, the legal representatives of the deceased Birender Kishore Pathak filed an application for payment of back-wages on 2.1.2002. Vide order dated 15.6.2002, the payment of Rs.51,300/- as back wages arrears was made to the legal heirs of late Shri Pathak who worked as Demonstrator for the period from March 1989 to 21.1.1996 @ Rs.625/- per month as per the certificate issued by the Principal of S.D. Ayurvedic College in the same manner in which similar order was complied with in the matter of Smt. Nirmal Rais case. Smt. Nirmal Rai was paid at the rate of Rs.495/- per month, the salary she was getting from the college. The legal heirs of late Shri Pathak, however, claimed that back wages arrears be paid at the rate of salary, which Shri Pathak was drawing on his absorption on 3.1.1996 in the pay scale of Rs.1640-2900 and not at the rate of Rs.625/- per month. The notice dated 18.7.2002 was given to the respondents by the legal heirs for this purpose, followed by another notice dated 15.1.2003. The respondents sent a reply to these notices on 3.6.2003, denying any payment to the petitioner. The petitioner then filed OA No.2548 of 2003, which was later on withdrawn with the liberty to file a Contempt Petition on 17.10.2003. CP No.61/2004 was then filed in February 2004, which is the subject matter of consideration in these proceedings. This CP had earlier been disposed of vide order dated 7th May, 2004 with the directions to the respondents to pay the petitioner from April 1986 to February 1989, taking April 1986 as the date of take over, in the absence of any proof produced by the respondents to the contrary as to the date of take over of the college. RA No.203/2004 filed by the respondents was dismissed vide order dated 4th August, 2004 for there being no error apparent on the face of the record. Both these orders have been successfully challenged by the respondents in the High Court of Delhi in Writ Petition (C) No.6530/2005 wherein, vide Order dated 30.8.2010, the impugned orders were quashed and CP No.61/2004 was restored for a fresh consideration. This is how this CP No.61/2004 is before us for consideration.
7. On a careful perusal of the Contempt Petition, the precise case of the petitioner could be gathered from Paras 9 to 11 and Para 15 of the petition, the other paras providing the historical backdrop of the case. These paras read as follows:
9. That the payment of back wages at the rate of Rs.625/- per month for the period from March 1989 to 2.1.1996 is not justified. Firstly, because this Honble Tribunal in its Order dated 26.2.1996 passed in CCP No.227/1995 had directed the respondents to make the payment of salary, allowances and all other consequential benefits to Shri B.K. Pathak from the date of take over of the Management of the Sanathan Dharam Ayurvedic College by the Government of NCT, Delhi till he was absorbed in Govt. of NCT, Delhi.
10. As Shri B.K. Pathak was absorbed as Demonstrator in the pay scale of Rs.1640-2900 w.e.f. 3.1.1996, the legal heirs of Shri Pathak were entitled for arrears of back wages at the rate of salary which he was drawing on his absorption in the Government of NCT Delhi in the pay scale of Rs.1640-2900/- and not at the rate of Rs.625/- per month.
11. That the Order of sanction for payment wrong and is in violation of Rs.625/- per month is, therefore, patently wrong and is in violation of Order dated 26.2.1996 of this Honble Tribunal and Order dated 11.10.2001 of the Honble Supreme Court in Civil Appeal No.213/1999.
15. The respondents have paid the arrears of pay to the legal heirs of Shri Pathak @ Rs.625/- per month. However, they were entitled for the arrears of pay @ salary of Shri Pathak fixed at the time of his absorption in Delhi Administration with effect from 3.1.1986. Had the said absorption has been made in April 1986 at the time of take over of the Management of the said College, he would have been paid the said salary and only due to the wrong on the part of the respondents in delaying the absorption, it will not deny the arrears of salary to the legal heirs of Shri Pathak. When this Honble Tribunal directed to pay salary and allowances from the date of take over of the Management treating Shri Pathak as an employee of the Delhi Administration, he should be paid only the salary which a Demonstrator would get from the Delhi Administration and not a paltry amount of Rs.625/- per month.
8. Accordingly, the petitioner prays for initiating contempt proceedings against the respondents and directing the respondents to pay the petitioner the arrears of salary of late Shri B.K.Pathak with effect from April 1986 at the rate of his salary fixed on 2.1.1996 in the pay scale of Rs.1640-2900 after deducting the amount already paid to the petitioner in pursuance of the sanction order dated 15.6.2002.
9. The respondents raised a preliminary objection to the maintainability of the petition being time barred. The petition filed in February 2004 alleging non-implementation of the order dated 26.2.1996 and 11.10.2001 is absolutely barred by time. Besides, the petition is otherwise not maintainable as the order of the Tribunal has been fully implemented. The respondents further submitted that this college was not taken over by Delhi Administration. The Tribunal, however, held contrary to this. Later on, a Full Bench of this Honble court in its judgment dated 3.7.1995 in OA 1618/1988 J.P Sharma v. Chief Secretary, OA 2027/1992 M.S. Yadav v. Delhi Administration, OA 2350/1992 B.P. Gupta Prem Prakash v. Delhi Administration, OA 777/1993 B.L. Bhardwaj v. Delhi Administration examined the correctness of the judgment of the Central Administrative Tribunal on 25.10.1991 and over-ruled the earlier judgment against which judgment a special leave petition was filed by the petitioner therein before the Honble Supreme Court was also dismissed meaning thereby that the view expressed by the Full Bench was affirmed.
10. On merits, the respondents replied as follows:
9. Para 9 is absolutely wrong and is denied. As submitted in earlier paragraphs, it is submitted that Rs.625/- per month was the pay which the husband of the petitioner was getting from the college. He cannot get anything more than what he was getting from the college. On the date of taking over, he is given the particular scale and thereafter he has been paid salary in that scale. By no stretch of imagination can it be presumed that the Demonstrator who was getting the pay of Rs.625/- per month from the college will be paid higher pay up to the date of his absorption. Whatever the scale the government has given him on absorption i.e. as per his qualification and the post on which he has been absorbed he cannot get the higher scale upto the date of absorption.
10. Para 10 is admitted to an extent that he was absorbed as Demonstrator in the scale of Rs.1640-2900 w.e.f. 3.1.1996. It is, however, denied that up to the date of absorption, the legal heirs of Shri B.K. Pathak are entitled to draw pay in the scale of Rs.1640-2900. As submitted in earlier paragraphs, he was paid upto date wages at the rate of Rs.625/- per month which the college was actually paying to him.
11. Para 11 is wrong and is denied. There is no illegality in the order.
..
15. Para 15 is wrong and is denied. The are no directions of any absorption from a particular date. Alleged take over which was not a take over in the eyes of law from 1989 till the date of absorption the petitioner would have entitled to the same pay which he was getting in SD Ayurvedic College and nothing more.
11. At the hearing, the learned counsel for the petitioner made the following submissions:
(i) Respondents have not fully complied with the order dated 11.10.2001 passed by the Honble Supreme Court.
The applicants were entitled for pay and allowances as applicable to Delhi Administration not consolidated salary.
But Respondents paid the back wages at Rs.625/- per month for the period from March 1989 to 2.1.1996 which is not justified.
The Respondents should have paid from the time of the take over which is 1986 and at the pay scale of Delhi Administration and with all the consequential benefits.
This Contempt Petition is not barred by limitation, as there were continuous and multiple litigations going on since 1991 from both the sides and after the final order the applicant had very diligently done the follow up till the filing of this petition.
In support of this, reliance has been placed by the petitioners counsel on Ashish Ranjan v. Anupam Tandon, 2010 (14) SCALE 274 and Ram Nath Sao & others v. Govardhan Rao, (2002) (3) SCC 195.
12. In reply, the learned counsel for the respondents submitted that the Contempt Petition is not maintainable, as it has been filed after more than one year. In support of this, the learned counsel relied on Pallav Seth v. Custodian & others, (2007) 1 SCC 549. The learned counsel further submitted that Courts are precluded from reopening the issue to see whether the order is right or wrong in Contempt Petition. Reliance in this regard is placed on Bihar Financial Service Construction Society v. Gautam Goswami, (2008) 5) SCC 341. The learned counsel for the respondents strongly contended that once there is an order passed by the Government on the basis of directions issued by the Court, there is fresh cause of action to seek redressal in an appropriate forum, as has been held in J.S. Parihar v. Ganpat Duggar, (1999) 6 SCC 291. The learned counsel vehemently urged that no court ever ordered that wages more than what the individuals were drawing from the college were to be paid to the individuals. The Original Application was disposed of on the lines on which the case of Smt. Nirmal Rai was decided. Smt. Nirmal Rai was paid at the rate of Rs.495/- per month, the salary she was getting from the college. So also Shri B.K. Pathak was paid at the rate of Rs.625/- per month, the salary which the college was paying. It is only from January 1996, individuals were taken in regular scales. The learned counsel has drawn our special attention to the fact that the decision in the case of Smt. Nirmal Rai was later on overruled by a Full Bench of the Tribunal vide Order dated 3.7.1995 in a batch of Original Applications, the lead case being that of J.P. Sharma & others v. Chief Secretary, Delhi Administration. The earlier decision in Smt. Nirmal Rai case was held not to be a correct decision as the Management of the College was never taken over. It has thus been contended that the pay and allowances, which are required to be paid, would be the same, which they were drawing earlier. A SLP filed against this decision of the Full Bench was later on dismissed as withdrawn and the matter thus attained finality. The learned counsel for the respondents, therefore, contended that no case of contempt is made out and the Contempt Petition should be dismissed with cost.
13. On a query as to why the respondents paid back wages arrears from 1989 to 1996 when the college was never taken over by the Delhi Administration, the learned counsel for the respondents clarified that the college paid its employees until 1989. The employees were agitating against non-payment of their wages. With a view to redress their grievance and having regard to the judicial orders in the matter as well as to buy peace, the Administration paid the back wages more as a welfare measure. As a matter of fact, since the college was never taken over for there was no provision in law for any such take over, nothing was in fact payable to the employees of the erstwhile college.
14. We have given our careful consideration to the respective submissions made by both the parties. We have also carefully perused the records of the case.
15. Let us first take the question of limitation. Section 20 of the Contempt of Courts Act states that 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. The contempt in the instant case is alleged to have been committed by the respondents on 3.6.2003 when vide their letter dated 3.6.2003 by way of reply to the applicants notices dated 18.7.2002 and 15.1.2003, they denied any payment due to the petitioner. This Contempt Petition filed in February 2004 is well within the limitation period of one year from the respondents letter dated 3.6.2003. Furthermore, failure to pay back wages, if it amounts to a contempt in a situation of this nature would be a continuing wrong. That being so, this petition cannot be said to be barred by limitation in terms of Section 20 of the Act. In view of the aforesaid premises, we do not consider it necessary to specifically deal with the cases referred to by the parties in this regard.
16. Coming to the merits of the case, let us see the directions of the Tribunal whose non-compliance is alleged in the present case. In the Original Application, the Tribunal, inter alia, directed that The applicants would also be entitled to pay and allowances for the period from the take over of the Management of the said college till they are given alternative jobs and all consequential benefits.
17. The liability to pay back wages thus commenced from the date of take over of the Management of the College and this would continue until the applicants are given alternative job. Prior to this, it was the responsibility of the college to pay wages to its employees.
18. While issuing this direction, as above, the Tribunal followed the ratio in its earlier judgment dated 25.10.1991 in Smt. Nirmal Rais case. In Smt. Nirmal Rais case the Tribunal proceeded on the premises that the fact of the take over of the management of the college has not been disputed. The take over of the management appears to have been formalized by a Government resolution which is not on record. In no subsequent proceedings arising from this case or any of the related cases, a copy of the notification notifying the take over the Management of the College was ever produced by any of the parties. As a matter of fact, there was indeed a proposal to take over the Management of the College in 1986 which could never be fructified in the absence of any enabling provision in the law for that purpose as has been held by the Full Benchs order of this Tribunal as referred to above. That being so, there could never have been any non-compliance of the Tribunals directions referred to above.
19. In these circumstances, there cannot be any question of a willful disobedience warranting any action in contempt proceedings. Furthermore, in such a situation, the question of paying back wages in any particular pay scale would also not arise. Besides, the contention of the applicant that had the respondents absorbed Late Shri B.K. Pathak in 1986, he would have drawn salary in the pay scale of Rs.1640-2900 and the same cannot be denied to the wrong on the part of the respondents in delaying the absorption, is too far fetched. No case of contempt can be made out in law on such a premise. There is no judicial order directing the petitioners absorption from any given date. In case the petitioner has any grievance on this count with regard to the time of absorption, the remedy would lie in appropriate proceedings on the original side and not in contempt proceedings. We have noticed in this regard the order dated 9.11.1992 on MP 7678/1992 in OA 819/1991 in the matter of Shri Prakash Chand and others (as decided along with the case of Smt. Nirmal Rai by common order dated 25.10.1991), clarifying that the petitioners (original applicants in OA 819/1991 Shri Prakash Chand and others) shall be paid pay and allowances for the period from take over of the Management of the College till they are given alternative jobs at the same rate as applicable to the employees of the corresponding ranks in the Delhi Administration. No such order was ever obtained by the applicant herein. We find force in the contention of the learned counsel for the respondents that no court ever ordered that the applicant herein be paid wages more than what he was drawing from the college. Even wages, irrespective of the pay scale, were payable after the take over of the Management of the College. Nothing actually became so payable since the management of the college was never taken over. In such a scenario, the question of pay scale in which back wages would be payable does not arise.
20. In the facts and circumstances and for the reasons stated above, we are of the considered opinion that no case of contempt is made in the present case. We do not consider the present case fit to invoke our power of contempt under Section 17 of the Administrative Tribunals Act, 1985.
21. The Contempt Petition is, therefore, dismissed. Notices are discharged.
(Sudhir Kumar) (Dr. Dharam Paul Sharma) Member (A) Member (J) /ravi/ Per Shri Sudhir Kumar, Member (A):
22. While I am in full agreement with Honble Member (J)s order, I would venture to add some legal issues which have arisen in this case before us.
23. This Contempt Petition (CP) is before us in view of the order of the High Court of Delhi in WP(C) No.6530/2005 dated 30.08.2010, which reads as follows:
With the consent of the parties, the writ petition stands disposed of quashing the order dated 7.5.2004 passed by the Tribunal disposing of CP No.61/2004 in OA No.1207/1990. Needless to state, order dated 4.8.2004 dismissing RA No.203/2004 which sought review of the order dated 7.5.2004 would be treated superfluous.
2. We restore CP No.61/2004 in OA No.1207/1990 with a direction to the Tribunal that the said contempt petition would be decided afresh and while so doing all the contentions urged by the contempt petitioner as also the contentions urged in defence would be first noted and then dealt with.
3. We note that the parties are at variance whether or not the petitioners in the writ petition have to pay any money to the respondents w.e.f. April, 1986 till February, 1989. The petitioners in the writ petition admit liability of paid wages w.e.f. March, 1989. Even in respect to the same there is a dispute. The dispute is whether the respondents are entitled to be paid wages @ Rs.625/- p.m. which was being paid to them when the institute in question was under private management, or the respondents are entitled to salary in a particular scale. A further issue arose as bar of limitation was raised as a defence.
4. It is unfortunate that the Tribunal has just not highlighted the rival issues and has yet disposed of the contempt petitions; needless to state the Tribunal has not even adjudicated upon the issues which were required to be decided by the Tribunal.
5. The Tribunal shall now do so.
6. No costs. (Emphasis supplied)
24. As reproduced above, the High Court has issued a writ, and has directed that this Tribunal should restore and then decide the Contempt Petition afresh, and while doing so the contentions urged by the Contempt Petitioner as also the contentions urged in defence would be first noted and then dealt with.
25. Since the High Court was hearing the case in a Writ Petition filed before it under Article 226 of the Constitution of India, it had gone into the facts of the case also, and has further noted in its writ order that the parties are at variance whether or not the petitioners in the Writ Petition have to pay any money to the respondents with effect from April 1986 till February, 1989. The High Court has further noted that:
(a) the liability to pay wages for the subsequent period with effect from March, 1989, already stood admitted, although even in respect of that period the dispute is regarding quantum of wages, as to whether the respondents before the Honble High Court are entitled to be paid wages @ Rs.625 per months, which was being paid to them when the institute in question was under private management, or the respondents are entitled to salary in a particular scale,
(b) a further issue arose as bar of limitation was raised as a defence and the High Court further observed that it is unfortunate that the Tribunal has just not highlighted the rival issues, and has yet disposed of the Contempt Petitions, and
(c) since the High Court concluded that this Tribunal has not even adjudicated upon the issues which were required to be decided by the Tribunal, it ordered that the Tribunal shall do so now.
26. When the case was remanded back, in view of the orders passed by the High Court, the CP was revived and again directed to be listed on 07.01.2011, and the hearings continued thereafter, even though, most respectfully, and with utmost humility, it is submitted that the moot question that arises for consideration in the present context is whether such adjudication of inter-partes rights, as envisaged in the aforesaid order of the High Court, could have been undertaken by this Tribunal in a petition under the contempt jurisdiction?
27. These comments regarding points of law regarding jurisprudence are required to be made, irrespective of the fact that we in this Tribunal are bound by the orders of the High Court, which is a superior Court, and we have carried out the exercise as per the order of the High Court dated 30.08.2010 in this order, even though, as mentioned above, stricto sensu such a determination of inter-partes rights could not have formed a part of an order passed in this Tribunals contempt jurisdiction under section 17 of the Administrative Tribunals Act, 1985 (hereinafter referred to as the Act).
28. The legal and jurisprudential issues which I would, most respectfully and with all humility, like to flag here, can, in brief, be stated as follows:-
i) What is the nature of the writ issued by the Honble High Court?
ii) Is the Tribunals jurisdiction under Section 17 of the Act still subject to a judicial review under Article 226, or a review/direction under Article 227, even after the Tribunals original contempt jurisdiction having been upheld by the Honble Apex Court in the case T. Sudhakar Prasad vs. Govt. of Andhra Pradesh & Ors.(2001) 1 SCC 516, specially in view of the law as laid down in Bradakanta Mishra vs. Mr. Justice Gatikrushna Misra, Chief Justice of the Orissa High Court: (1975) 3 SCC 535?
iii) Does a writ of either mandamus, or certiorari, lie before the Honble High Court under Article 226 from an order of this Tribunal passed in contempt petition proceedings, when no orders of punishment have been passed against the alleged contemners, in spite of the orders of the Honble Apex Court in the case T. Sudhakar Prasad vs. Govt. of Andhra Pradesh & Ors. (supra) and in Baradakanta Mishra vs. Mr.Justice Gatikrushna Misra, Chief Justice of the Orissa High Court (supra)?
iv) Can the Honble High Courts order be read to be an order issued to this Tribunal as a subordinate Court under Article 227?
v) What is the nature of, scope of, and limitations upon the original powers of this Tribunal under Section 17 of the Act, now, even after the Honble Apex Courts Orders in the case T. Sudhakar Prasad vs. Govt. of Andhra Pradesh & Ors. (supra) when read with Baradakanta Mishra vs. Mr.Justice Gatikrushna Misra, Chief Justice of the Orissa High Court (supra)?
29. The powers of judicial review by, & supervisory jurisdiction of High Courts, over the Central Administrative Tribunal, under Articles 226 and 227 of the Constitution of India, came to be examined and laid down in great detail by the 7 Judges Bench order of the Honble Apex Court in L. Chandra Kumar Vs. Union of India and Others (1997) 3 SCC 261: AIR 1997 SC 1125: JT 1997 (3) SC 589. In that judgment, the Honble Apex Court held that since the power of judicial review is a basic and essential feature of the Constitution of India, and Articles 226 and 227 are a part of the basic structure of the Constitution, the jurisdiction of the High Court could not be ousted or excluded by the provisions of Article 323-A (2) (d) and Article 323-B (3) (d), both of which had been reproduced in Para 5 of the Honble Apex Court judgment, and provide as follows:-
323-A(2) (d): exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under Article 136, with respect to the disputes or complaints referred to in clause (1);
323-B (3) (d): exclude the jurisdiction of all courts except the jurisdiction of the Supreme Court under Article 136 with respect to all or any of the maters falling within the jurisdiction of the said Tribunals;
30. Both these Articles 323A and 323-B of the Constitution also contain the following exactly similarly worded Constitutional provisions in Article 323-A(2) (g) and Article 323-B (3) (f), stating as follows, on which no finding or ratio was arrived at/laid down by the Honble Apex Court in the L. Chandra Kumar judgment (supra):-
323-A (2) (g): Contain such supplemental, incidental and consequential provisions (including provisions as to fees ) as Parliament may deem necessary for the effective functioning of, and for the speedy disposal of cases by, and the enforcement of the orders of, such tribunals.
323-B(3) (f): Contain such supplemental, incidental and consequential provisions (including provisions as to fees) as they appropriate Legislature may deem necessary for the effective functioning of, and for the speedy disposal of cases by, and the enforcement of the orders of, such tribunals.
31. This landmark seven Judges Bench judgment of the Honble Apex Court was very aptly summarized and clarified four years later by the Honble Apex Court in T. Sudhakar Prasad v. Govt. of Andhra Pradesh & Others, (2001) 1 SCC 516: 2000 Supp (5) SCR 610: (2001) 1 JT 204 in the following words:-
11. In L. Chandra Kumar v. Union of India & Ors. (supra) the matter had come up before the seven-Judges Bench of this Court consequent upon a reference made by a Division Bench of this Court which doubted the correctness of a five-Judges Constitution Bench of this Court in S.P. Sampath Kumar v. Union of India and felt the need of the same being comprehensively reconsidered. This Court framed three broad issues for its consideration and proceeded to consider the constitutional validity of Articles 323A, 323B and several provisions of the Administrative Tribunals Act, 1985. We need not extensively reproduce several conclusions arrived at by the Constitution Bench (excepting where necessary); it would suffice to briefly summarise the conclusions of the Constitution Bench insofar as necessary for our purpose. the Constitution Bench held that the jurisdiction conferred upon the High Courts and the Supreme Court under Articles 226 and 32 of the Constitution respectively is a part of the inviolable basic structure of our Constitution. the power of judicial review over legislative action vesting in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution are an integral and essential feature of such basic structure and therefore their power to test the constitutional validity of legislations can never be ousted or excluded (paras 73, 78). The power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and tribunals within their respective jurisdictions is also part of the basic structure of the Constitution and a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation is equally to be avoided (para 79). Though the subordinate judiciary or tribunal created under ordinary legislations cannot exercise the power of judicial review of legislative action to the exclusion of the High Courts and the Supreme Court, there is no constitutional prohibition against their performing a supplemental - as opposed to a substitutional - role in this respect. Clause (3) of Article 32 itself contemplates that Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2), without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2).
12. The Constitution Bench further held that if the power of the Supreme Court under Article 32 of the Constitution described time and again as the 'heart and soul' of the Constitution, can be additionally conferred upon any other Court, there is no reason why the same situation would not subsist in respect of the jurisdiction conferred upon the High Courts under Article 226 of the Constitution. So long as the jurisdiction of the High Court under Articles 226/227 and that of the Supreme Court under Article 32 is retained, there is no reason why the power to test the validity of the legislations against the provisions of the Constitution cannot be conferred upon Administrative Tribunals or Tribunals under Articles 323A and 323B (para 89). the basic structure theory of the Constitution prohibits the jurisdiction of the High Courts under Articles 226 in respect of the power of judicial review being wholly excluded but the same can certainly be additionally conferred on courts and tribunals. the Constitution Bench specifically overruled the plea that the Tribunals should not be allowed to adjudicate upon matters where the vires of legislations is questioned because that would defeat the very purpose of constituting the tribunals. to allay the fears sought to be projected before the Constitution Bench, this Court held that the decisions of the Tribunal will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a Division bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls as this would serve dual purpose : (i) the power of the High Courts under Articles 226/227 of the Constitution to judicially review the legislative action would be saved, and (ii) it will be ensured that frivolous claims were filtered through the process of adjudication in the Tribunal, and additionally the High Court will have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter (para 91). The Constitution Bench emphasised the necessity of ensuring that the High Court are able to exercise judicial superintendence over the decisions of the Tribunals under Article 227 of the Constitution and held (vide para 91) :-
"Having regard to both the aforestated contentions, we hold that all decisions of Tribunals, whether created pursuant to Article 323-A or Article 323-B of the Constitution, will be subject to the High Court's writ jurisdiction under Articles 226/227 of the Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls."
13. The power of Supreme Court under Article 136 of the Constitution to hear appeals by special leave against the orders of the Tribunals on matters specified in Section 14(1) of the Act having been specifically saved by Section 28 thereof, the Constitution Bench consistently with the view taken by it laid down the methodology to be adopted. No appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the Constitution; instead, the aggrieved party will be entitled to move the High Court under Articles 226/227 of the Constitution and from the Division Bench decision of the High Court the aggrieved party can move the Supreme Court under Article 136 of the Constitution. Thus, the Constitution Bench succeeded in preserving intact the inalienable jurisdiction of the High Courts under Articles 226/227 of the Constitution and also effectuating the appellate jurisdiction of the Supreme Court under Article 136 of the Constitution over the decisions of the Tribunal subject to their being filtered through and in that process being subject to test by the High Courts in their judicial review jurisdiction.
14. The jurisdictional powers of the Tribunal were summarized by the Constitution Bench as under (vide para 93):-
1. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional set-up, been specifically entrusted with such an obligation, Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. the Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. the Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the High Court concerned may be approached directly.
2. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts. The Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted; meaning thereby that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned.
The Constitution Bench concluded as under :-
"We hold that clause (2)(a)(d) of Article 323-A and clause (3)(d) of Article 323- B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is Valid and constitutional and is to be Interpreted in the manner we have indicated."
15. The Constitution Bench invoked the doctrine of prospective overruling and made its directions to come into effect prospectively, i.e., from the date of its judgment.
16. It is thus clear that the Constitution Bench has not declared the provisions of Article 323-A (2)(b) or Article 323-B (3)(d) or Section 17 of the. Act ultra vires the Constitution. ..The High Court has proceeded on the reasoning that the Tribunal having been held to be subordinate to the High Court for the purpose of Articles 226/227 of the Constitution and its decisions having been subjected to judicial review jurisdiction of the High Court under Articles 226/227 of the Constitution the right to file an appeal to the Supreme Court against an order passed by the Tribunal punishing for contempt under Section 17 of the Act was defeated and on these twin grounds Section 17 of the Act became unworkable and unconstitutional. We do not find any basis for such conclusion or inference being drawn from the judgments of this Court in the cases of Supreme Court Bar Association (supra) or L. Chandra Kumar (supra) or any other decision of this Court. The Constitution Bench has in so many words said that the jurisdiction conferred on the High Courts under Articles 226/ 227 could not be taken away by conferring the same on any court or Tribunal and jurisdiction hitherto exercised by the High Court now legislatively conferred on Tribunals to the exclusion of High Court on specified matters, did not amount to assigning tribunals a status of substitute for the High Court but such jurisdiction was capable of being conferred additionally or supplementally on any Court or Tribunal which is not a concept strange to the scheme of the Constitution more so in view of Articles 323-A and 323-B. Clause (2)(b) of Article 323-A specifically empowers the Parliament to enact a law specifying the jurisdiction and powers, including the power to punish for contempt, being conferred on administrative tribunals constituted under Article 323- A. Section 17 of the Act derives its legislative sanctity therefrom. The power of the High Court to punish for contempt of itself under Article 215 of the Constitution remains intact but the jurisdiction power and authority to hear and decide the matters covered by sub-section (1) of Section 14 of the Act having been conferred on the Administrative Tribunals the jurisdiction of the High Court to that extent has been taken away and hence the same jurisdiction which vested in the High Court to punish for contempt of itself in the matters now falling within the jurisdiction of tribunals if those matters would have continued to be heard by the High Court has now been conferred on the administrative tribunals under Section 17 of the Act. The jurisdiction is the same as vesting in the High Courts under Article 215 of the Constitution read with the provisions of the Contempt of Courts Act, 1971. The need for enacting Section 17 arose, firstly, to avoid doubts, and secondly, because the Tribunals are not "courts of record". While holding the proceedings under Section 17 of the Act the Tribunal remains a Tribunal and so would be amenable to jurisdiction of High Court under Article 226/227 of the Constitution subject to the well-established rules of self-restraint governing the discretion of the High Court to interfere with the pending proceedings and upset the interim or interlocutory orders of the Tribunals. However any order or decision of tribunal punishing for contempt shall be appealable only to the Supreme Court within 60 days from the date of the order appealed against in view of the specific provision contained in Section 19 of the Contempt of Courts Act, 1971 read with Section 17 of the Administrative Tribunals Act, 1985. Section 17 of Administrative Tribunals Act is a piece of legislation by reference. The provisions of Contempt of Courts Act are not as if lifted and incorporated in the text of Administrative Tribunals Act (as is in the case of legislation by incorporation); they remain there where they are yet while reading the provisions of Contempt of Courts Act in the context of Tribunals, the same will be so read as to read the word Tribunal' in place of the word 'High Court' wherever it occurs, subject to the modifications set out in Section 17 of the Administrative Tribunals Act. Section 19 of the Contempt of Courts Act, 1971 provides for appeals. In its text also by virtue of Section 17 of the Administrative Tribunals Act, 1985 the word 'High Court' shall be read as 'Tribunal'. .Any order or decision of the Tribunal punishing for contempt is appealable under Section 19 of the Act to the Supreme Court only. The Supreme Court in the case of L. Chandra Kumar has nowhere said that orders of tribunal holding the contemnor guilty and punishing for contempt shall also be subject to judicial scrutiny of High Court under Article 226/227 of the Constitution in spite of remedy of statutory appeal provided by Section 19 of the Contempt of Courts Act being available. The distinction between orders passed by Administrative Tribunal on matters covered by Section 14(1) of Administrative Tribunals Act and orders punishing for contempt under Section 19 of the Contempt of Courts Act read with Section 17 of Administrative Tribunals Act, is this : as against the former there is no remedy of appeal statutorily provided, but as against the later statutory remedy of appeal is provided by Section 19 of Contempt of Courts Act itself.
17. Subordination of Tribunals and courts functioning within the territorial jurisdiction of a High Court can be either judicial or administrative or both. The power of superintendence exercised by the High Court under Article 227 of the Constitution is judicial superintendence and not administrative superintendence, such as one which vests in the High Court under Article 235 of the Constitution over subordinate courts. Vide para 96 of L. Chandra Kumar's case, the Constitution Bench did not agree with the suggestion that the Tribunals be made subject to the supervisory jurisdiction of the High Courts within whose territorial jurisdiction they fall, as our constitutional scheme does not require that all adjudicatory bodies which fall within the territorial jurisdiction. Obviously, the supervisory jurisdiction referred to by the Constitution Bench in para 96 of the judgment is the supervision of the administrative functioning of the tribunals as is spelt out by discussion made in paras 96 and 97 of the judgment.
18. Jurisdiction should not be confused with status and subordination. the Parliament was motivated to create new adjudicatory fora to provide new, cheap and fast-track adjudicatory systems and permitting them to function by tearing of the conventional shackles of strict rule of pleadings, strict rule of evidence, tardy trials, three/four-tier appeals, endless revisions and reviews - creating hurdles in fast flow of stream of justice. The administrative tribunals as established under Article 323A of the Administrative Tribunal Act, 1985 are an alternative institutional mechanism or authority, designed to be not less effective than the High Court, consistently with the amended constitutional scheme but at the same time not to negate judicial review jurisdiction of constitutional courts. Transfer of jurisdiction in specified matters from the High Court to the administrative tribunal equates the tribunal with the High Court in so far as the exercise of judicial authority over the specified matters is concerned. That, however, does not assign the administrative tribunals a status equivalent to that of the High Court nor does that mean that for the purpose of judicial review or judicial superintendence they cannot be subordinate to High Court. It has to be remembered that what has been conferred on the administrative tribunal is not only jurisdiction of the High Court but also of the subordinate courts as to specified matters. High Courts are creatures of Constitution and their Judges hold constitutional office having been appointed under the Constitution. The Tribunals are creatures of statute and their members are statutorily appointed and hold statutory office. In State of Orissa v. Bhagaban Sarangi [1995 (1) SCC 399], it was held that administrative Tribunal is nonetheless a Tribunal and so it is bound by the decision of the High Court of the state and cannot side-track or bypass it. Certain observations made in the case of TN. Seshan, Chief Election Commr. of India v. Union of India, [JT 1995 (5) SC 337 = 1995 (4) SCC 611], may usefully be referred to. It was held that merely because some of the service conditions of the Chief Election Commissioner are akin to those of the Supreme Court judges, that does not confer the status of a Supreme Court judge on the C.E.C.. This court observed "of late it is found that even personnel belonging to other fora claim equation as High Court or Supreme Court Judges merely because. certain jurisdictions earlier exercised by those Courts are transferred to them not realizing the distinction between constitutional and statutory functionaries". We are, therefore, clearly of the opinion that there is no anathema in the tribunal exercising jurisdiction of High Court and in that sense being supplemental or additional to the High Court but at the same time not enjoying status equivalent to High Court and also being subject to judicial review and judicial superintendence of the High Court.
19. xxxxxxxxxxxxxxxx 20.xxxxxxxxxxxxxxxx 21. Contempt jurisdiction is exercised for the purpose of upholding the majesty of law and dignity of judicial system as also of the courts and tribunals entrusted with the task of administering delivery of justice. Power of contempt has often been invoked, as a step in that direction, for enforcing compliance of orders of courts and punishing for lapses in the matter of compliance. the majesty of judicial Institution is to be ensured so that it may not be lowered and the functional utility of the constitutional edifice is preserved from being rendered ineffective. The proceedings for contempt of court cannot be used merely for executing the decree of the court. However, with a view to preserving-the flow of the stream of justice in its unsullied form and in unstinted purity willful defiance with the mandate of the court is treated to be contemptuous. Availability of jurisdiction to punish for contempt- provides efficacy to functioning of the judicial forum and enables the enforcement of the orders on account of its deterrent affect on avoidance. Viewed from this angle the validity of Section 17 of the Act is protected not only by sub-clause (b) of Clause (2) of Article 323-A but also by sub-clause (g) thereof.
22. xxxxxxxxxxxxxxxxxxxx. (Emphasis supplied)
32. The powers to exercise its own original jurisdiction in respect of its contempt has been conferred upon the Central Administrative Tribunal under the Contempt of Courts Act, 1971, by virtue of the provisions of Section 17 of the Act, under Article 323-A (2) (g) as reproduced above, which has been upheld by the Honble Apex Court in para 21 of the judgment in the case of T. Sudhakar Prasad (supra), but such parallel original Contempt of Court powers have not been conferred upon any of the other Tribunals constituted under Article 323(B), under the enabling Constitutional provision provided in Article 323-B (3) (f), though the two enabling provisions, as was pointed out in para-30/above, are exactly similarly worded.
33. Therefore, in a case wherein in an O.A., the inter partes rights of the parties before the Tribunal are decided by this Tribunal, by passing an order, deciding and determining the inter partes rights of the two or more opposite parties before this Tribunal, as per the judgment of the Honble Apex Court in L.Chandra Kumar (supra), a Writ Petition under Article 226 of the Constitution of India lies before the Honble High Court concerned. But, the Contempt jurisdiction of this Tribunal is a different cup of tea, as has been recognized by the Honble Apex Court itself in T. Sudhakar Prasad (supra) particularly when read with Baradakanta Mishra vs.Mr.Justice Gatikrushna Misra, Chief Justice of the Orissa High Court (supra).
34. In respect of all the other Courts and Tribunals subordinate to the High Court, whenever any case of any civil or criminal contempt of the Court or Tribunal arises, the relevant contempt case concerned, under the Contempt of Courts Act, 1971, has to be filed before the Honble High Court having territorial and supervisory jurisdiction over that Court or Tribunal. But under Section 17 of the Act, read with the Contempt of Court (C.A.T.) Rules, 1992, (hereinafter referred to as the Rules, 1992) this Tribunal has been given an independent (though not sui generis) power to decide upon the petitions filed in the cases alleging any civil or criminal contempt towards the orders of this Tribunal. In these contempt petitions, whenever anybody alleges a contumacious act against the orders of this Tribunal having been committed by the other party, and the respondent(s)/alleged contemner(s) having acted otherwise than as they were directed, or having failed to do what they were directed or enjoined to do by this Tribunal, the Contempt Petition has to be moved before the appropriate Bench of this Tribunal, under Section 17 of the Act, and not before the jurisdictional High Court, like in the cases of other Tribunals, and subordinate Courts, as was upheld by the Honble Apex Court in its judgment in the case T. Sudhakar Prasad (supra).
35. The ingredients which go into the making of an act as a contumacious act have been examined in detail in the Courts in U.K. and in India over the last more than 250 years. As was mentioned by Justice Williams in Miller vs. Knox (1838) 6 Scott, 1 : 4 Bing. N.C. 574, page 589, the contempt of Court is so manifold in its aspects that it is difficult to lay down any exact definition of the offence. It is defined or described to be a disobedience to the Court, an opposing or a despising of the authority, justice, or dignity thereof. It commonly consists in a partys doing otherwise than he is enjoined to do, or not doing what he is commanded or required by the process, order, or decree, of the Court. In the case of In Re-Johnson (1887) 20 QBD 68, at page No.74, it was mentioned that the main question in considering a case of contempt always is as to whether or not there has been an interference or a tendency to interfere with the administration of justice by any of the actions of the respondents/alleged contemners.
36. It was laid down in the case of R. vs. Almon (1765), Wilm 243; R.V. Davison (1821), 4 B&A 329, and in Miller vs. Knox (supra), that a Court of justice without power to vindicate its own dignity, to enforce obedience to its mandates, to protect its officers, or to shield those who are entrusted to its care, would be an anomaly which could not be permitted to exist in any civilized community.
37. In the case of St. Jamess Evening Post case (1742), 2 Atk 469 at page No.471, Lord Hardwicke, L.C., held that there cannot be anything of greater consequence than to keep the streams of justice clear and pure, so that parties may proceed with safety both to themselves and their characters.
38. Thus, the Administrative Tribunals Act, 1985, and the Contempt of Courts (CAT) Rules, 1992, provide for and confer an independent (though not sui generis) jurisdiction on this Tribunal to appreciate and to arrive at a conclusion as to whether any contempt of any of the orders of this Tribunal has been committed by anybody, or an authority, or not, and as to whether an action, or inaction, is a contumacious act or not. This original (though not sui generis) contempt jurisdiction of this Tribunal is permitted by the Act, and the Rules framed thereunder, to be exercised by each of the 33 Division Benches of this Tribunal, located at 17 places in the country, independently, and the law and procedure as laid down do not provide for even an intra Tribunal appeal, as every Division Bench of this Tribunal, i.e., each of the 33 Division Benches of this Tribunal, have been enabled by the law, and the procedure, to decide as to whether any contempt of its own order, or any orders of a Coordinate Bench of the Tribunal, has been committed by anybody or any authority, or not. The Act also confers exactly parallel powers upon the State Administrative Tribunals also, under the very same Section 17 of the Act, though the Rules, 1992, do not apply to those State Administrative Tribunals.
39. In a contempt petition case, the appreciation of the facts leading to a decision by the Bench as to whether an act is a contumacious act in itself or not, can vary from Bench to Bench even within this Tribunal. One act (or inaction) which may appear or seem to be contumacious to one Bench of the Tribunal, prompting it to frame charges for either a civil contempt or criminal contempt against the respondent(s)/alleged contemner(s), can differ from the appreciation of the same facts, or the level of compliance or obedience, when the issue of an act being contumacious or not is being considered by another Bench of this Tribunal. Also, in contempt jurisdiction, there is no principle of a precedent being binding on all Benches. However, it is trite law that in a contempt petition case, the task of the contempt petitioner is only that of an informant, to point out the alleged contumacious act stated to have been committed by the respondent(s)/alleged contemner(s), and the role of the contempt petitioner who brings the alleged contumacious conduct of the respondent(s)/alleged contemner(s) to the notice of the Court/Tribunal, which is that of only an informant, comes to an end as soon as notices have been issued in exercise of contempt jurisdiction, and the contempt petitioner does not thereafter have the status of a litigant, as has been held and observed by the Honble Apex Court in the case Supreme Court Bar Association vs. Union of India: (1998) 4 SCC 409 (para 41): AIR 1998 SC 1895, and also in the cases Jaipur Municipal Corporation vs. C.L. Mishra: (2005) 8 SCC 423 (para 9): (2005) 9 JT 195; B.K. Savithri vs. B.V.S. Anand: (2005) 10 SCC 207 (para 5): 2005 SCC Cri 1502, and K. Gopalan Nair vs. K. Balakrishnan Nair: (2005) 12 SCC 350 (para 3).
40. Therefore, when once this Tribunal, which has been empowered to try the cases of its own contempt, under Sec. 17 of the Act, 1985, read with the Contempt of Courts Act, 1971, takes cognizance of a Contempt Petition, and issues notices to the respondent(s)/alleged contemner(s), the role of the informant contempt petitioner fully ceases or comes to an end thereafter, as the case of contempt then is between the Court and the contemner. The contempt petitioner does not become either a litigant, or a prosecutor in a hearing on the contempt petition, once the Court/Tribunal has commenced the proceedings in a contempt case. While hearing such a contempt petition thereafter, this Tribunal, (like the Honble High Courts, or the Honble Apex Court), assumes the role of both being a prosecutor as well as a judge, for the purpose of ensuring and keeping the streams of justice clear and pure, so that the parties may proceed in accordance with law.
41. When any one of the 33 Division Benches of this Tribunal has decided that a contumacious act has been committed, it can proceed to frame charges, and have them served upon the alleged contemner(s), with charges being framed appropriately, depending upon the alleged contempt being a civil contempt or a criminal contempt. In case of a criminal contempt, when charges have been framed and read out to the respondent(s)/alleged contemner(s) concerned, and they deny their culpability, the Bench can then treat them as contemners (as opposed to alleged contemners earlier), and proceed ahead with the criminal trial of the contemners concerned, as per the Trial Court procedures as prescribed under the Criminal Procedure Code, 1973.
42. It may be pointed out here that in a case arising out of manhandling of a Judicial Member of the Tribunal by certain Police personnel, the Circuit Bench of this Tribunal at Ranchi had taken cognizance of the contumacious acts of nine contemners, declared and determined them to have committed a criminal contempt of the Tribunal, had on 03.02.2010 converted the Contempt Petition case (Criminal Contempt Case No. 22 of 2008) into a regular criminal trial case, framed charges of criminal contempt against those nine contemners under Rule 13 (b) (i) of the Rules, 1992, punishable under Section 12 of the Contempt of Courts Act, 1971, and when the contemners had pleaded not guilty, had then proceeded ahead to conduct their Criminal trial, by converting the Bench of the Tribunal into a Criminal Trial Court, as per the law & Rules prescribed in the Cr. P.C. in this behalf. It had appointed an amicus curae to function as the prosecution lawyer (or prosecutor), and had then recorded the oral evidence of the witnesses produced and summoned, as the prosecution and defence witnesses in that criminal trial case, at the Circuit Bench of this Tribunal at Ranchi, on 11.03.2010, 12.03.2010, 12.04.2010 and onwards, after the directions of the Honble Apex Court in the case of W.P. (Criminal) No.23 of 2008 in Re: Incident relating to Criminal intimidation to a Member of CAT vs. Union of India & Ors; in which the orders of the Honble Apex Court were issued on 25.08.2009.
43. The Criminal trial of the 9 contemners in that Contempt Petition, converted into a criminal trial case, had ultimately led to the judgment dated 19.05.2011, with one of the accused being sentenced to a simple imprisonment of 15 days, and fines of Rs.2000/- each being imposed on the 8 others. The Criminal Appeal u/s 19(1) (B) of the Contempt of Courts Act, 1991, filed by the convicted contemner against that sentence of simple imprisonment pronounced by Ranchi Circuit Bench of this Tribunal, is presently pending adjudication before the Honble Apex Court as Criminal Appeal No.1332/2011 Nirmal Choudhary vs. CAT Patna Bench, Patna.
44. The Honble Jharkhand High Court at Ranchi was neither approached, nor interfered with that contempt case criminal trial at any stage. But, if it had been approached by any of the nine accused persons at any stage in between 03.02.2010 to 11.05.2011, could the Honble Jharkhand High Court have stayed that Criminal Trial by this Tribunal, is the issue.
45. In a normal criminal case trial before a Magistrates or Sessions Judge s Court, the Honble High Court can even quash the charges framed against the accused. Could the Honble Jharkhand High Court, if approached, have done the same in that Contempt Criminal trial case also?
46. Here this issue is more so relevant since the Tribunals powers (as regards the actual punishment which can be imposed by the Administrative Tribunals) in such a criminal trial in a contempt of court trial case are a miniscule portion of the powers of imposing punishments in criminal case trials available to even a Judicial Magistrate (First Class).
47. It may also be further noted here that in the Criminal Appeal filed presently in that case before the Honble Apex Court, the original informant Contempt Petitioner before the Patna Bench of this Tribunal (at Ranchi), the CAT Bar Association, is not at all a party, as the role of the informant contempt petitioner is no longer there when once cognizance has been taken in a contempt case by a Court/Tribunal competent to do so.
48. But, most respectfully and with utmost humility, it is submitted that the Honble Apex Court had, while upholding the original (though not sui generis) powers of this Tribunal to exercise its jurisdiction in contempt matters under Section 17 of the A.T. Act, 1985, made two apparently seemingly ir-reconcilable observations in para 16 of its judgment in T. Sudhakar Prasad (supra), as reproduced in para-31 above, laying down the law as follows:-
A) While holding the proceedings under Section 17 of the Act the Tribunal remains a Tribunal and so would be amenable to jurisdiction of High Court under Article 226/227 of the Constitution subject to the well-established rules of self-restraint governing the discretion of the High Court to interfere with the pending proceedings and upset the interim or interlocutory orders of the Tribunals.
B) However any order or decision of Tribunal punishing for contempt shall be appealable only to the Supreme Court within 60 days from the date of the order appealed against in view of the specific provision contained in Section 19 of the Contempt of Courts Act, 1971 read with Section 17 of the Administrative Tribunals Act, 1985. Section 17 of Administrative Tribunals Act is a piece of legislation by reference.
49. With utmost respect and humility, I may be permitted to submit that the Honble Apex Court had not in this judgment adumbrated upon as to how the proceedings in contempt petitions, being dealt with by the Tribunal under Section-17 of the Act, would be subjected to jurisdiction of the High Courts under Articles 226/227 of the Constitution, and had not dwelt in detail upon the aspect that when the superintendence of the High Courts over this Tribunal had been held to be only judicial, and not administrative, as to what would be the nature of the exercise of this jurisdiction by the High Courts under Article 226 and 227 of the Constitution, in respect of:
i) Intent
ii) Extent
iii) Purpose
iv) Kind
v) Effect
vi) Stage
vii) Manner.
50. Two types of situations have been seen to emerge in such cases. The first situation is when the respondent(s)/alleged contemner(s) do not want to implement the orders of this Tribunal forthwith, and (a) have either filed a writ petition before the concerned High Court challenging the order of the Tribunal and obtained a stay, or (b) just try to buy time, without having filed any writ petition challenging the Tribunals order, and rush to the High Court praying for a stay of the contempt proceedings themselves, soon after they have been initiated by Tribunal by issuing a notice in the contempt petition. The second situation which arises is when the contempt petitioner, acting as an informant, fails to convince the concerned Bench of the Tribunal regarding a contemptuous or contumacious act having been committed by the respondent(s)/alleged contemner(s) named by him, and the concerned Bench of the Tribunal either (c) declines to issue notices to the respondent(s)/alleged contemner(s) and closes the C.P. case in limine itself, or (d) when, after having issued such notices, and after a hearing upon the response of the respondent(s)/alleged contemner(s), comes to a conclusion that no case of a wilfull disobedience or default on the part of the respondent(s)/alleged contemner(s) has been made out by the informant contempt petitioner, and then closes the contempt petition case, after recording its satisfaction that no contemptuous or contumacious act has been committed by the respondent(s)/alleged contemner(s), which may require them to be punished for a Civil or a Criminal Contempt, like had happened in the instant case.
51. The aftermath or ramifications of all the four scenarios (a), (b), (c) & (d) in the preceding paragraph are different, and need some elaboration about the legal position in respect of each of them, separately. The crux of the matter here also lies in as to whether the orders of the concerned Bench of the Tribunal in scenarios (c) & (d) above fall within the definition of a judgment or not.
52. There is no confusion in regard to the scenario at (a) in para 50 above. As soon as the Bench of the Tribunal trying the Contempt Petition case involved, is informed that the order of the Tribunal itself has been stayed by the High Court in exercise of its powers under Articles 226/227, in the light of the L. Chandra Kumars case (supra), the contempt proceedings are instantly dropped, and the case gets closed, and the notices issued, if any, are discharged. In those cases where the Honble High Court has admitted the Writ, but has not stayed the order of this Tribunal, also are treated with kid-gloves, and either long dates are given, awaiting the verdict of the High Court, or, if the respondent(s)/alleged contemner(s) so agree, directions are issued to them to implement the orders of the Tribunal, subject to a rider that such implementation shall be subject to the outcome of the Writ Petition pending before the High Court. The law regarding the course of action to be adopted by the Tribunal in such a scenario was laid down by the Honble Apex Court in the case Suresh Chandra Poddar vs. Dhani Ram and Others : 2002 SCC (L&S) 214, and no Bench of the Tribunal can transgress the bounds of the law as laid down by the Honble Apex Court in this regard.
53. Problems arise in regard to the scenario at (b) in para 50 above. This has led to a peculiar situation. While most of the High Courts in the country, have never interfered with the exercise of its contempt jurisdiction by the respective Benches of this Tribunal located under their jurisdiction, even the notices issued by the Benches of this Tribunal in Contempt Proceedings are being challenged before some of the High Courts, and in a number of cases, these High Courts pass orders staying the pending and on-going contempt proceedings before the concerned Bench of this Tribunal, in their own interpretation of the Honble Apex Court judgment in T. Sudhakar Prasad case (supra).
54. It is my most respectful submission, with utmost humility at my command, that the Honble Apex Courts ratio decidendi in T. Sudhakar Prasad case (supra) perhaps does not encompass such issuance of stay orders in respect of the contempt proceedings initiated by any Bench of this Tribunal, as it had advised the High Courts to exercise self-restraint from interfering with the pending proceedings, and not to upset the interim or interlocutory orders of the Tribunals in its contempt jurisdiction. Clarity of the law in this regard, beyond what was laid down in T. Sudhakar Prasad (supra), is essential therefore.
55. As regards the scenarios at (c)&(d) in para 50/above, one needs to examine the existing case law beyond the two judgments of the Honble Apex Court in L. Chandra Kumar and T. Sudhakar Prasad (supra). The judicial arena as regards the subject as to what is a judgment, was held for about six decades from 1872 to 1936 by two different judgments of Calcutta High Court. In the case of The Justices of the Peace for Calcutta vs. The Oriental Gas Company: (1872) 8 Beng LR.433: S.C. 17 W.R. 364; it was clearly held that a judgment means a decision which affects the merits of the question between the parties by determining some right or liability. A differing view had however been taken in the Full Bench decision of the Calcutta High Court in the case of Mohendra Lall Mitter vs. Anondo Commer Mitter (1897) I.L.R. 25 Cal. 236. In that case it was held that an appeal lay from an order refusing an application to commit for contempt of Court. This is also the legal position in England even as on today, where a right of appeal is given to a disappointed or frustrated applicant under Section 13, sub-sections (1) and (2) of the Administration of Justice Act, 1960. But the legal position in India changed from 1936 onwards, on the basis of a judgment pronounced by the Bombay High Court in 1932.
56. The legal position was appropriately clarified by the Bombay High Court in the context of the law in India in 1936, when in the case of Narendrabhai Sarabhai Hatheesingh vs. Chinubhai Manibhai Seth: (1936) 38 BOMLR 571: ILR 60 BOM 894; in their concurring but separate judgments Justices K. John Beaumont, Kt., and Rangnekar laid down the law for India, and also noted the difference from the English Law. For the sake of understanding the full impact of this brilliant & brief judgment, I take the liberty to reproduce it in full as follows:-
John Beaumont, Kt., C.J.
1. This is an appeal from an order made by Mr. Justice B. J. Wadia on a notice of motion to commit defendant No. 1 for breach of an undertaking given to the Court and embodied in an order of the Court dated April 19, 1933. The learned Judge held that no breach of the order was proved which justified him in committing the defendant to prison; he did not dismiss the motion with costs, but made no order on the motion, and left each side to pay its own costs. From that order the appeal is brought.
2. A preliminary objection is taken that no appeal lies, and that question turns upon whether the order appealed from is a judgment within Clause 15 of the Letters Patent. This Court has always acted upon the definition of "judgment" given by the Calcutta High Court in the case of The Justices of the Peace for Calcutta v. The Oriental Gas Company (1872) 8 Beng. L.R. 433 : s.c. 17 W. R. 364, where Couch C. J. said (p. 452) :-
We think that ' judgment' in Clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability.
3. It is difficult to see how an order of the Court refusing to commit a man for breach of an undertaking given to the Court can be said to affect the merits of any question between the parties. The undertaking is given to the Court; if it is broken, and that fact is brought to the Court's notice, the Court may take such action as it thinks fit. If it comes to the conclusion that the order has been deliberately broken, it will probably commit the defaulter to jail, but the Court is free to adopt such course as it thinks fit.
4. There seems to be very little authority upon the point.
5. Sir Jamshed Kanga has referred to a decision of this Court in Narayanrao Vithal V. Solomon Moses (1932) I.L.R. 57 Bom. 286 : s.c. 35 Bom. L.R. 9, in which it was held that no appeal lay from an order refusing to commit for contempt of a criminal nature, and he says that the basis of that decision was a distinction between contempt of a criminal nature, and contempt of a civil nature such as we have to deal with in the present case. But it appears from the judgment in that case that the Advocate General on behalf of the respondent admitted that the order sought to be appealed from was a judgment within Clause 15 of the Letters Patent. So that the point which we have to consider in this case was not before the Court in that case.
6. The only direct authority on the point seems to be a decision of a full bench of the Calcutta High Court in the case of Mohendra Loll Mitter v. Anundo Coomar Mitter (1897) I.L.R. 25 Cal. 236, in which it was held that an appeal lay from an order refusing an application to commit for contempt of Court. The learned Judges merely expressed the opinion that the order was appealable, and dealt with it upon the merits. They gave no reasons for their decision, and they appear to have relied largely upon the English cases which were cited to them. The law in England is different because there is no English enactment corresponding to Clause 15 of the Letters Patent.
7. In my opinion, to hold that this order is appealable would be to depart from the practice which this Court has always followed in adopting the definition of " judgment", to which I have referred. It is impossible to say that this order deals with any question between the parties. It affects only the right of the Court to enforce its own order, and in my opinion such an order cannot be said to be a judgment within the meaning of Clause 15. The decision of the Calcutta High Court is not binding upon us, and in the absence of any reason for supposing that it has been followed in other High Courts, I think we ought not to follow it.
8. I think, therefore, the preliminary objection must be upheld and the appeal dismissed with costs. Cross-objections dismissed with costs. Costs to be set off.
Rangnekar, J.
9. I agree. This appeal is taken from an order of Mr. Justice B. J. Wadia on a notice of motion taken out by the appellants against the respondent for an order that the respondent be committed to jail for committing contempt of this Court by a breach of the undertaking he had given to the Court on April 19, 1933. The appellant alleged that the respondent had committed several breaches of the order which was then made by this Court. Mr. Justice B. J. Wadia held that the appellants had not proved the breaches to his satisfaction, though with regard to one or two there was some suspicion, and refused to commit the respondent for contempt.
10. Mr. Chagla on behalf of the respondent has raised a preliminary objection. He says that the order made by Mr. Justice B. J. Wadia is not a judgment within the meaning of Clause 15 of the Letters Patent. Now, the exact meaning of that expression has given rise to a good deal of controversy in the various High Courts in this country, but so far as this Court is concerned, it has consistently followed a judgment of the Calcutta High Court in the case of The Justices of the Peace for Calcutta v. The Oriental Gas Company (1872) 8 Beng. L.R. 433 : s.c. 17 W. R. 364. In that case Couch C. J. said (p. 452) :-
We think that ' judgment' in Clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability.
Does the order appealed from decide any question between the parties and determine any right or liability ? On the notice of motion there was, in my opinion, no question between the parties. Proceedings for contempt are matters entirely between the Court and the person alleged to have been guilty of contempt. No party has any statutory right to say that he is entitled as a matter of course to an order for committal because his opponent is guilty of contempt. All that he can do is to come to the Court and complain that the authority of the Court has been flouted, and if the Court thinks that it was so, then the Court in its discretion takes action to vindicate its authority. It is, therefore, difficult to see how an application for contempt raises any question between the parties, so that any order made on such an application by which the Court in its discretion refuses to take any action against the party alleged to be in the wrong can be said to raise any question between the parties.
11. Sir Jamshed Kanga, however, relies upon the case of Mohendra Lall Mitter v. Anundo Coomar Mitter (1897) I.L.R. 25 Cal. 236, where three Judges of the Calcutta High Court were of the opinion that an order like the one we have in this appeal was appealable. No reasons, however, seem to have been given for this opinion, and with all respect to the learned Judges I am unable to agree that an order refusing to commit the party alleged to have committed a breach of the order of the Court is a judgment within the meaning of Clause 15 of the Letters Patent.
12. In these circumstances, I think the preliminary objection must be upheld, and the appeal must be dismissed with costs.
(Emphasis supplied)
57. Forty years later, while deciding Criminal Appeal No.84 of 1973 on 21.06.1974, the Honble Apex Court cited the above judgment of Bombay High Court with approval, in para 5 of its landmark judgment delivered by P.N. Bhagwati, J., (as His Lordship then was), on behalf of the three judges Bench including D.G. Palekar and V.R. Krishna Iyer, JJ, in the case Baradakanta Mishra vs. Mr. Justice Gatikrushna Misra, Chief Justice of the Orissa High Court: (1975) 3 SCC 535: AIR 1974 SC 2255, which is not a very often cited case, though two other Apex Court judgments reported in 1974 and 1976, [AIR 1974 SC 710 CB: (1974) 1 SCC 374; and (1976) 3 SCC 327: 1976 SCC (L&S) 429] in the case of the same petitioner, are more well known, and are cited more often. But this landmark judgment, being directly related to the case and the legal point before this Bench, needs to be cited here, as when the appellant of that case, a Judicial Officer himself, had failed to get relief in the Contempt of Court case filed by him against the Chief Justice and the other judges of Orissa High Court, from the High Court itself, he had appealed to the Supreme Court, purporting to avail of the right of appeal under Section 19 (1) of the Contempt of Courts Act, 1971. The State of Orissa had then stepped in, and taken a preliminary objection against the maintainability of the appeal on the ground that where the High Court had not initiated proceedings under the Contempt of Courts Act, and had refused to take action against the Chief Justice and the other judges of the High Court under the High Courts own contempt jurisdiction, no appeal as of right will lie under Section 19 (1) of the Contempt of Courts Act, 1971. The Honble Apex Court held as follows:-
4. When the appeal reached hearing before us, the learned Additional Solicitor General, appearing on behalf of the respondent, raised a preliminary objection against the maintainability of the appeal. The learned Additional Solicitor General contended that no appeal lay under Section 19, sub-section (1) against the refusal of the High Court to take action on the motion made by the appellant. It is only if the High Court suo motu or on a motion made by the Advocate General or any other person with the consent in writing of the Advocate General takes action and initiates proceeding for contempt against the alleged contemner and on arriving at a finding of guilt, punishes him for contempt that the alleged contemner has a right of appeal under section 19, sub-sec. (1). Even if a proceeding for contempt is initiated against the alleged contemner but the alleged contemner is found not guilty and is exonerated, there is no right of appeal, contended the learned Additional Solicitor General, and neither the Advocate General nor the person who has, with the consent in writing of the Advocate General, moved the High Court, can appeal as of right. The appellant, who appeared in person, combated this contention by relying on the words "any order or decision ..... in the exercise of its jurisdiction to punish for contempt" and urged that even if a decision was taken by the High court not to take action on the motion made by the Advocate General or any other with the consent in writing of the Advocate General, it would still be a decision in the exercise of its jurisdiction to punish for contempt and would, therefore, be appealable on the plain terms of Section 19, sub-section (1). It is difficult to imagine, contended the appellant that the legislature should have conferred a right on the Advocate General or any other person with the consent in writing of the Advocate General to move the High Court for taking action for contempt, but should have refused to grant a right of appeal to the Advocate General or such other person even if his motion was wrongly rejected by the High Court. These rival contentions raise an interesting question of law depending for its determination on the true interpretation of the language of Section 19, sub-section (1).
5. Now, while considering this question, we must bear in mind the true nature of the contempt jurisdiction exercised by the High Court and the law in regard to right of appeal which obtained immediately prior to the enactment of the Contempt of Courts Act, 1971. It has always been regarded as well settled law that so far as criminal contempt is concerned it is a matter entirely between the Court and the alleged contemner. No one has a statutory or common law right to say that he is entitled as a matter of course to an order for committal because the alleged contemner is guilty of contempt. All that he can do is to move the Court and draw its attention to the contempt alleged to have been committed and it will then be for the Court, if it so thinks fit, to take action to vindicate its authority and commit the alleged contemner for contempt. It is for the Court in the exercise of its discretion to decide whether or not to initiate a proceeding for contempt. Even if the Court is prima facie satisfied that a contempt has been committed, the Court may yet choose to ignore it and decline to take action. There is no right in any one to compel the Court to initiate a proceeding for contempt even where a prima facie case appears to have been made out. The same position obtains even after a proceeding for contempt is initiated by the court on a motion made to it for the purpose. The Court may in the exercise of its discretion accept an unconditional apology from the alleged contemner and drop the proceeding for contempt, or, even after the alleged contemner is found guilty, the court may, having regard to the circumstances, decline to punish him. So far as the contempt jurisdiction is concerned, the only actors in the drama are the Court and the alleged contemner. An outside party comes in only by way of drawing the attention of the court to the contempt which has been committed; he does not become a part to the proceeding for contempt which may be initiated by the court. It was for this reason that a Division Bench of the Bombay High Court held in Narendrabhai Sarabhai Hatheesingh v. Chinubhai Manibhai Seth, ILR 60 Bom 894 = (AIR 1936 Bom 314) that an order made by the High Court refusing to commit a man for breach of an undertaking given to the Court is not a judgment within the meaning of cl. 15 of the Letters Patent as it does not affect the merits of any question between the parties to the suit. Beaumont, C. J., pointed out :
"the undertaking is given to the Court : if it is broken, and that fact is brought to the court's notice, the court may take such action as it thinks fit. If it comes to the conclusion that the order has been deliberately broken it will probably commit the defaulter to jail, but the court is free to adopt such course as it thinks fit."
Rangnekar, J., also spoke in the same strain when he said:
"Proceedings for contempt are matters entirely between the court and the person alleged to have been guilty of contempt. No party has any statutory right to say that he is entitled as a matter of course to an order for committal because his opponent is guilty of contempt. All that he can do is to come to the Court and complain that the authority of the Court has been flouted and if the Court thinks that it was so, then the court in its discretion takes action to vindicate its authority. It is, therefore, difficult to see how an application for contempt raises any question between the parties, so that any order made on such an application by which the Court in its discretion refuses to take any action against the party alleged to be in the wrong can be said to raise any question between the parties."
6. ..(Not reproduced here).
7. Before we examine the language of Section 19 sub-section (1) in order to arrive at its true interpretation, we may first look at Sections 15, 17 and 20. Sub-section (1) of Sec. 15 provides that in a case of criminal contempt other than contempt in the face of the Court, the Supreme Court or the High Court may take action on its own motion or on a motion made by the Advocate General or any other person with the consent in writing of the Advocate General and sub-sec. (2) of that section says that in case of criminal contempt of any subordinate court, the High Court may take action on a reference made to it by the subordinate court, or on a motion made by the Advocate General or in relation of Union Territories, by such law officer as the Central Government may specify in this behalf. Section 17 lays down the procedure to be followed by the Court when it decides to take action and initiates a proceeding for contempt under Section 15. Sub-section (1) of that section provides that notice of every proceeding under Section 15 shall be served personally on the person charged and according to sub-section (2), such notice shall be accompanied, in case of a proceeding commenced on a motion, by a copy of the motion, by also copies of the affidavits, if any, on which such motion is founded, and in case of a proceeding commenced on a reference by a subordinate court, by a copy of the reference. Section 20 prescribes a period of limitation by saying that no court shall initiate any proceeding for contempt either in 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. It will be seen from these provisions that the scheme adopted by the legislature is that the court may initiate a proceeding for contempt suo motu or on a motion made by the Advocate General or any other person with the consent in writing of the Advocate General or on a reference made by a subordinate court. Where the Court initiates a proceeding for contempt suo motu, it assumes jurisdiction to punish for contempt and takes the first step in exercise of it. But what happens when a motion is made by the Advocate General or any other person with the consent in writing of the Advocate General or a reference is made by a subordinate court. Does the court enter upon the jurisdiction to punish for contempt and act in exercise of it when it considers such motion or reference for the purpose of deciding whether it should initiate a proceeding for contempt? We do not think so. The motion or reference is only for the purpose of drawing the attention of the Court to the contempt alleged to have been committed and it is for the Court, on a consideration of such or reference, to decide, in exercise of its discretion, whether or not to initiate a proceeding for contempt. The Court may decline to take cognizance and to initiate a proceeding for contempt either because in its opinion no contempt prima facie appears to have been committed or because, even if there is prima facie contempt, it is not a fit case in which action should be taken against the alleged contemner. The exercise of contempt jurisdiction being a matter entirely between the Court and the alleged contemner, the Court, though moved by motion or reference, may in its discretion, decline to exercise its jurisdiction for contempt. It is only when the court decides to take action and initiates a proceeding for contempt that it assumes jurisdiction to punish for contempt. The exercise of the jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt, whether suo motu or on a motion or a reference. That is why the terminous a quo for the period of limitation provided in Section 20 is the date when a proceeding for contempt is initiated by the Court. Where the Court rejects a motion or a reference and declines to initiate a proceeding for contempt, it refuses to assume or exercise jurisdiction to punish for contempt and such a decision cannot be regarded as a decision in the exercise of its jurisdiction to punish for contempt. Such a decision would not therefore, fall within the opening words of Section 19, sub-section. (1) and no appeal would lie against it as of right under that provision. This of course does not mean that there is no remedy available where the High Court on an erroneous view of the law or unreasonably and perversely refuses to take action for contempt on a motion or a reference. Though no appeal lies under Section 19, sub-sec. (1) as of right against such order or decision of the High Court, the Advocate General or any other person who has with the consent in writing of the Advocate General moved the High Court can always come to this Court by a petition for special leave to appeal and the power of this Court to interfere with such order or decision in the exercise of its extraordinary jurisdiction under Article 136 is unfettered. This Court can always in suitable cases set right any order or decision of the High Court refusing to take action for contempt against the alleged contemner, if the larger interests of administration of justice so requires.
8. It is, therefore, clear that the order made by the Full Bench of the Orissa High Court in the present case rejecting the motion made by the appellant and refusing to initiate a proceeding for contempt against the Chief Justice and other judge was not appealable under Section 19, sub-section (1). We may point out that in the present case it is unnecessary to consider whether an appeal under S. 19, sub-section (1) is confined only to a case where the High Court after initiating a proceeding for contempt, finds the alleged contemner guilty and punishes him for contempt as contended by the learned Additional Solicitor General or it extends also to a case where after initiating a proceeding for contempt, the High Court finds that the alleged contemner is not guilty of contempt and exonerates him, or even if he is found guilty of contempt, declines to punish him. A question may well arise whether in the latter case the Advocate General or any other person who has, with the consent in writing of the Advocate General, move the High Court can appeal as of right against the order or decision of the High Court. That question does not arise in the present case and we need not, therefore, express any opinion upon it, though we may point out that in England a right of appeal is given to a disappointed applicant under Section 13, sub-sections (1) and (2) of the Administration of Justice Act, 1960.
9. We are, therefore, of the view that the preliminary objection raised by the respondent is well founded and the appellant is not entitled to maintain the present appeal under Section 19, sub-section (1). The appeal therefore, fails and is dismissed. There will be no order as to costs.
(Emphasis supplied)
58. Both the judgments in Baradakanta Mishra vs. Mr. Justice Gatikrushna Misra, Chief Justice of the Orissa High Court (supra) and in T. Sudhakar Prasad (supra) were delivered by three judges Benches, but, somehow, the principles of law of contempt laid down in the first judgment (reported in 1974/1975) were not noticed by the Apex Court in its latter judgment (reported in 2000/2001). Also, both the judgments having been delivered by Benches of equal number of Apex Court judges, it cannot be said that the latter judgment would over-ride the 26 year old earlier judgment, and, therefore, it continues to be binding law as on today also.
59. To my mind, there is an incongruity in between these two judgments, which needs to be resolved by the Honble Apex Court, as and when an occasion arises for it. In its 215th report titled L. Chandra Kumar be revisited by Larger Bench of Supreme Court, the Law Commission of India headed by Dr. Justice A.R. Lakshmanan had requested the Government of India to request the Honble Supreme Court to re-consider L. Chandra Kumars case, or, in the alternative, for necessary and appropriate amendments in the A.T. Act, 1985, to be effected in accordance with law. That recommendation has as yet remained a recommendation only, and has not been acted upon by the Government of India. But, in the context of the contempt jurisdiction of the Tribunal at least, to my mind, there is a need for the Honble Apex Court to revisit para 16 of its judgment in T. Sudhakar Prasads case (supra), specifically the portion reproduced at para 48(A)/above, particularly in view of its own judgment in the case of Baradakanta Mishra vs. Mr. Justice Gatikrushna Misra, Chief Justice of the Orissa High Court (supra), which continues to be a good and binding law, but the ratio of which had escaped the notice of the Honble Apex Court while deciding the case in T. Sudhakar Prasad (supra).
60. It may be pointed out here that another three Judges Bench of the Honble Apex Court had, in the case of J.S. Parihar vs. Ganpat Duggar and Others: AIR 1997 SC 113= (1996) 6 SCC 291=JT 1996(9) SC 608=(1996) 7 SCALE 351= 1996 AIR (SCW) 4272=(1997) 6 Supreme 133- 1996 (Supp 6) SCR 110; again in the context of Section 19(1) of the Contempt of Courts Act, 1971, but once again without noticing its own earlier judgment in the case Baradakanta Mishra vs. Mr. Justice Gatikrushna Misra, Chief Justice of the Orissa High Court (supra), had once again laid down the law in similar terms, by stating as follows:-
..When the seniority list came to be prepared, the contempt proceedings were initiated under Section 12 of the Contempt of Courts Act. 1971 (for short the "Act"). The learned single Judge on consideration of the merits in the seniority held that the respondents had not wilfully disobeyed the orders of the Court and gave directions as under :.. 3. The State had filed appeal against these directions. A preliminary objection was taken on the maintainability of the appeal and also arguments were advanced. The Division Bench while holding the appeal as not maintainable under Section 19 of the Act, held that the appeal would be maintainable as a Letter Patent Appeal as the direction issued by the learned single Judge would be a judgment within the meaning of Clause (18) of the Rajasthan High Court Ordinance. Accordingly the Division Bench set aside the directions issued by the learned single Judge. Thus these appeals by special leave.
4. The question is : whether an appeal against the directions issued by the learned single Judge is maintainable under Section 19 of the Act ? Section 19 of the Act envisages that "an appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt where the order or decision is that of a single Judge, to a bench of not less than two Judges of the Court."Therefore, an appeal would lie under Section 19 when an order in exercise of the jurisdiction of the High Court punishing the contemner has been passed. In this case, the finding was that the respondents had not wilfully disobeyed the order. So, there is no order punishing the respondent for violation of the orders of the High Court. Accordingly, an appeal under Section 19 would not lie.
5. It is seen that once there is an order passed by the Government on the basis of the directions issued by the Court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may he right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the wilful violation of the order. After re-exercising the judicial review in contempt proceedings, a fresh direction by the learned single judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act. Therefore, the Division Bench has exercised the power under Section 18 of the Rajasthan High Court Ordinance being a judgment or order of the single Judge, the Division Bench corrected the mistake committed by the learned single Judge. Therefore, it may not be necessary for the State to file an appeal in this Court against the judgment of the learned single Judge when the matter was already seized of the Division Bench.
6. The appeals are accordingly dismissed. It may be open to the aggrieved party to assail the correctness of the seniority list prepared by the State Government, if it is not in incomformity with the directions issued by the High Court, if they so advised, in an appropriate forum. No costs.
Appeals dismissed.
(Emphasis supplied)
61. When the Honble Apex Court had laid down the law in T.Sudhakar Prasad (supra) that any final order or decision of the Tribunal, punishing contemners for its contempt, ostensibly both for civil and criminal contempt, shall be appealable only to the Honble Apex Court itself, within 60 days from the date of the order appealed against, in view of the specific provision contained in Section 19 of the Contempt of Courts Act, 1971, read with Section 17 of the AT Act, 1985, can it be said that an order of lesser significance, not impinging upon the fundamental rights of the alleged contemners, when no such punishment for a contempt has been sought to be imposed by this Tribunal, and the Contempt Petition praying for punishing the respondent(s)/alleged contemner(s) for alleged contempt has been dismissed, or when the proceedings are still pending, and which has been consciously kept away from appeal before the Honble Apex Court, yet it would be amenable to the writ and supervisory jurisdictions of the High Courts under Articles 226 and 227 of the Constitution in view of para 48 (A)/above, as cited from the Honble Apex Court judgment in T. Sudhakar Prasad (supra)?
62. However, when a petitioner in a Contempt Petition has been held to be having only the role of an informant, and having held in numerous other cases also that a case in contempt jurisdiction is a case only in between the Court (or Tribunal) and the alleged contemner(s) alone, it appears that, in the absence of a provision in Indian laws parallel to Section 13, sub-sections (1) and (2) of the Administration of Justice Act, 1960, of the U.K., it does not lie for that disappointed informant to be able to approach the High Court to complain against the orders of the Tribunal itself, under Articles 226/227, and to try to plead before the High Court that the Tribunal should have necessarily proceeded to punish the respondent (s)/alleged contemner(s), as per the tenets of the law which flows from the above cited case of Baradakanta Mishra vs. Mr. Justice Gatikrushna Misra, Chief Justice of the Orissa High Court (supra). But the issue that still remains is as to whether the discharged alleged contemner(s) can still invoke the writ jurisdiction of the Honble High Court under Articles 226 & 227, as has happened in the instant case?
63. When the Tribunal itself feels satisfied with substantial compliance of its orders, and comes to the conclusion that there was no wilfull disobedience, and holds that no contumacious act has been committed by the alleged contemners, and the notices issued under the Contempt of Courts Act, 1971, are therefore themselves discharged, it is our most respectful submission that no issue remains to be decided or propounded upon by the High Court under Articles 226/227 of the Constitution, and no writ or appeal can lie before the High Court either from the disappointed informant contempt petitioner [to be able to plead before the Honble High Court & say that he is entitled to a matter of course to an order for committal, because the alleged contemnor is guilty of contempt, as was stated by the Honble Apex Court in para 5 of its judgment in Baradakanta Mishra (supra)], or from the discharged alleged contemners. After having performed his duty as an informant for invoking the contempt jurisdiction of the Tribunal, the disappointed informant Contempt petitioner cannot also be thereafter allowed to plead a violation of his fundamental rights by way of such a dismissal/closure of his Contempt Petition, accompanied with the discharge of notices issued against the respondent (s)/alleged contemner(s).
64. If the Tribunal decides that the information supplied by the petitioner regarding any contumacious act having been committed by the respondent (s)/alleged contemner(s) was incorrect, and that there has been substantial compliance of the orders of the Tribunal, the law as laid down in very clear terms by the Honble Apex Court in Baradakanta Mishra (supra) would not permit him to then carry the case before the High Court under Articles 226 or 227, pleading for any of his fundamental rights having been violated by such a determination by the Tribunal, or the Tribunal having failed in performance of its duties, inviting Article 227 to become applicable.
65. Also, it is well settled law that the High Court, in exercise of its judicial superintendence over the Tribunal under Article 227, cannot take upon itself the task of once again reopening the question of wilfull disobedience or defiance of the Tribunals orders, posed before the Tribunal by the contempt petitioner as an informant, and taking upon itself to decide as to whether there was a contumacious act towards the Tribunal committed on the part of the respondent(s)/alleged contemner(s) or not, as that would negate the very purpose of the legislative intent behind the enactment of Section-17 of the Act, which has been upheld by the Honble Apex Court in the case T. Sudhakar Prasad (supra), and also because the law in India does not have any provision for a disappointed informant to rake up the issue once again in an appeal, like under the Administration of Justice Act, 1960, of the United Kingdom, as pointed out by the Honble Apex Court itself. And yet, the issue of as to whether the discharged alleged contemner(s) can still invoke the High Courts jurisdiction under Articles 226 & 227, as has happened in the instant case, has not yet been decided upon by the Honble Apex Court in any case so far.
66. When once a Bench of this Tribunal has considered the Contempt Petition case, and has either just issued notices & commenced the contempt petition proceedings, or has decided and closed that contempt petition case, and has held that there has been no willful default or deliberate disobedience on the part of the respondent(s)/alleged contemner(s), and that there was no contumacious act committed by them, and that there has been no attempt to lower the image of judiciary in general, and of the Tribunal in particular, by any of the actions of the respondents, we are not clear as to in such cases, what can then be the intent, or the extent, or the purpose, or the kind, or the effect, or the stage, or the manner of the jurisdiction of the High Courts under Article 226 & 227 of the Constitution to be invoked.
67. After the Tribunal has decided to drop or close the contempt petition case, and has discharged the Contempt of Court Act notices issued, the Tribunal in fact becomes functus officio. Legally speaking, with the discharge of the notices issued in a contempt petition being ordered by this Tribunal, no stage or process survives under the Contempt of Courts Act, 1971, for either the Tribunal itself to re-open the same contempt proceedings once again, after having become functus officio, nor can the issue of same contempt of this Tribunals orders be permitted to be sought to be revived once again, either by the disappointed informant contempt petitioner, or by the discharged alleged contemner(s), in an oblique manner, in the name of invoking the writ jurisdiction of the High Courts under Article 226, or the Article 227 judicial superintendence powers of the High Courts over this Tribunal, in the absence of a provision in Indian laws parallel to the sub-sections (1) and (2) of Section 13 of the Administration of Justice Act, 1960, of the United Kingdom, as was pointed out by the Honble Apex Court itself in para 8 of its judgment in Baradakanta Mishra (supra).
68. Though this Tribunal remains a Tribunal, but when once it closes a contempt petition case, and discharges the notices issued under the Contempt of Courts Act, and becomes functus officio, the Contempt of Courts Act, or any other Indian law, does not have any provision for either the disappointed informant contempt petitioner, or the discharged alleged contemner(s), to be allowed to revive the same issue of contempt case before the High Court, by invoking the writ jurisdiction under Article 226, or the judicial supervisory jurisdiction of the High Court under Article 227. Actually, with the closure of any contempt petition by a Bench of this Tribunal, and discharge of the notices issued under Contempt of Courts Act, the whole issue goes entirely out of the ambit of the Contempt of Courts Act, 1971, itself. If the disappointed informant contempt petitioner is still having any grievance left, the only course available to and open for him would be to file a fresh OA before the Tribunal, in respect of any of his surviving grievances, and, even he cannot invoke the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. The status of the discharged alleged contemner(s) actually does not exist at all, for them to invoke the writ jurisdiction of the High Court, as has been permitted to happen in the instant case. This is perhaps the result of the seemingly ir-reconcilable legal dichotomy arising out of the observations of the Honble Apex Court in the judgment in T. Sudhakar Prasad case (supra) reproduced at para-48 (A)/above, which had not noticed the law already laid down on this point by the Apex Court itself in the case of Baradakanta Mishra (supra).
69. Therefore, it is my most respectful and humble submission that the Central Administrative Tribunal, and the State Administrative Tribunals, constituted under the Act, 1985, when they act under the Contempt of Courts Act, 1971, and have either just issued notices, and commenced the contempt case proceedings, or have concluded & decided the contempt petitions brought before them under their original (though not sui generis) powers under Section 17 of the Act, 1985, read with the Contempt of Courts Act, 1971, and the Rules, 1992, in their exercise of those powers, they are out side the ambit of both the writ and the supervisory jurisdiction of the High Courts under Articles 226 & 227, because of the very ratio of L. Chandra Kumar case (supra) in para 80 and 91 to 93 of the judgment, as reproduced above, further strengthened by the ratio of the Honble Apex Court in T. Sudhakar Prasad (supra) as reproduced at para 48(B)/above, in particular, and the ratio in Baradakanta Mishra (supra).
70. Under the Contempt of Courts Act, 1971, in respect of all other Courts, cases of their contempt have to be agitated before the High Court concerned, to which those courts are subordinate, in accordance with the procedure prescribed in this regard, which may include a motion by the Advocate General also. In the absence of any enabling provision for the Tribunals constituted under Article 323-B of the Constitution of India, under Sub-Clause (f) of Clause (3) of Article 323-B, all the cases of contempt in respect of all the Tribunals constituted under Article 323-B would also continue to be agitated before the High Court having territorial jurisdiction in the matter, in accordance with the procedure prescribed in this regard, which may include a motion by the Advocate General also. However, most respectfully, and with all humility at my command, it is submitted that the same is not true in respect of the Central Administrative Tribunal, and the State Administrative Tribunals, constituted under Article 323-A, which have been conferred with their own original (though not sui-generis) powers for examining the cases of their own contempt, at par with High Courts concerned, by virtue of Section 17 of the Act, 1985, but without the requirement of a motion by the Advocate General being prescribed, which has not been declared ultra vires or read down by the Honble Apex Court in any case so far, and has rather been specifically upheld by the Honble Apex Court in the case T. Sudhakar Prasad (supra).
71. Since the above cited Honble Apex Court judgments in L. Chandra Kumar (supra), and T. Sudhakar Prasad (supra) have not struck down the conferment of original powers to hear cases of their own contempt by the Article 323-A Tribunals, namely, Central Administrative Tribunal and the Sate Administrative Tribunals, under Section-17 of the Act, as per the enabling provision of sub Clause (g) of Clause (2) of Article 323-A of the Constitution of India, which was not even the subject matter of consideration, or an issue before the Honble Apex Court in L.Chandra Kumar case (Supra), it is my most respectful and humble submission that while all the other orders/judgments and determinations of inter-partes rights, in any Original Applications, or Review Applications, or Miscellaneous Applications, by the Central Administrative Tribunal and the State Administrative Tribunals, would be subject to judicial scrutiny before a Division Bench of the respective jurisdictional High Courts, as per the directions of the Honble Apex Court in Para 93 of L. Chandra Kumar judgment (supra), the same is not true in the case of orders of the Central or the State Administrative Tribunals in the exercise of their original (though not sui generis) contempt jurisdiction, under Section 17 of the Act, in respect of which contempt jurisdiction alone, these Administrative Tribunals continue to be at par with the High Courts, under the Contempt of Courts Act, 1971, even after the above cited seven Judges judgment in L. Chandra Kumar (Supra), and the judgment in T. Sudhakar Prasad (supra), apart from the sui generis contempt jurisdiction of the High Courts under Article 215, as Courts of original records.
72. Most respectfully and with utmost humility at my command, I venture to submit so, since the Honble Apex Court did not lay down any ratio in regard to the supplemental, incidental and consequential provisions, which the Parliament may deem necessary to provide to these Tribunals under Article 323 A(2)(g), for the effective functioning of and the expeditious disposal of cases, and the enforcement of the orders of the Administrative Tribunal, and that Sub Clause (g) of Clause (2) of Article 323-A of the Constitution of India has not drawn any adverse comments from the Honble Apex Court, or read down in that judgment in L. Chandra Kumar case (supra), and has rather been specifically upheld, as per the ratio laid down, in the concluding sentence in para 21 of the Honble Apex Courts judgment in T. Sudhakar Prasad (supra).
73. Powers of the Courts and Tribunals in general have been examined by the Honble Apex Court in a number of cases. It is not in question that in exercise of its non-judicial functions, the Courts (and the Tribunals) fall within the definition of the State under Article 12 of the Constitution of India. However, the exercise of their judicial functions by the Courts (and Tribunals) does not occasion the infringement of the fundamental rights of the litigants before them in the lis concerned, and, therefore, the question of bringing the Courts (and Tribunals) within the definition of the State under Article 12 does not arise, even though such a view was taken by Justice Mukharji in A. R. Antulay Vs. R.S. Nayak, 1988)2 SCC 602: and in his commentary on the Constitution of India, H.M. Seervai had forcefully argued for the Courts (and Tribunals) to be counted as the State even in the exercise of their judicial functions. Yet, that is not the law which holds the field or judicial arena as on today, which could automatically give rise to an occasion for the High Court to exercise its jurisdiction under Articles 226/227 of the Constitution even without there being any enabling law, or legal provision, or ratio of an Apex Court judgment in this behalf.
74. But, even if this view, so far not supported by any law, or a judicial dicta or ratio, is given due importance as a question of law per se, the Honble Apex Court has held that a Writ under Article 32 cannot be issued by it to a High Court of competent jurisdiction against its judicial orders, because no violation of the fundamental rights can be attributed to such judicial orders. As J. Gajendragadkar, the then C.J.I, had observed, it is singularly inappropriate to assume that the judicial decision pronounced by a Judge of competent jurisdiction in or in relation to a matter brought before him for adjudication can affect the fundamental rights of the citizens under article 19 (1). What the judicial decision purports to do is to decide the controversy between the parties brought before the Court and nothing more: State of Bihar Vs. Bal Mukund Shah, (2000) 4 SCC 640: AIR 2000 SC 1296. It is my most respectful submission that this ratio shall, mutatis mutandis, apply to the writ jurisdiction of the High Courts, vis-`-vis the interim and final orders of this Tribunal at least in the Contempt cases.
75. Thus, when in the exercise of their judicial functions, Courts are required to determine even the scope of the fundamental rights vis-`-vis a legislative or executive action, unless their power to perform that judicial function is excluded or restricted by the Constitution, or any other law, they are implicitly and inherently competent to make a right, or a wrong determination. A wrong determination in such a case does not constitute a breach of anybodys fundamental rights by the Court. It is a genuine mistake, which it is competent to make, though it must not make. The remedy against such a mistake is not to allege a violation of the fundamental rights by the Court, and approach the Honble Apex Court, or the High Court, under Articles 32 or 226 respectively, but only to allege that the determination of the Court was mistaken or wrong, & is not consistent with fundamental rights, and approach the appropriate Court, with such allegation in appeal. The question of the power of the Court to violate the fundamental rights in the exercise of its judicial functions has never been raised before the Honble Apex Court, or discussed at all by the Honble Apex Court in any of its judgments, in so far as the limited research on this subject conducted by me has revealed.
76. But, these propositions of law are true only in respect of those Courts which have the power to determine their own jurisdiction, and not ordinarily true in respect of Tribunals or other similar bodies, which do not ordinarily have such power, unless the law under which they are constituted specifically provides for such a power for them to determine and exercise their jurisdiction. Therefore, as a general rule, the determinations of Tribunals and other similar bodies, which are in violation of the fundamental rights of anybody, can be challenged in writ proceedings, even on the ground that they are without jurisdiction to interfere with or impinge upon a partys fundamental rights. But, as a general rule, unless their determinations are without jurisdiction, or can be alleged to have been arrived at in a wrong, incorrect or mistaken appreciation of law, which is not consistent with the fundamental rights, they cannot be challenged in writ proceedings. This aspect of legal interpretation had formed the very basis of the Honble Apex Court judgment in L. Chandra Kumars case (supra).
77. But, Section 17 of the Act, 1985, which has not been interfered with, or struck down, or read down by the Honble Apex Court in L. Chandra Kumars case (supra), or in T. Sudhakar Prasad (supra), gives this very power to the Central and State Administrative Tribunals, to determine the scope of their original (though not sui generis) contempt jurisdiction, and to decide to hold & determine as to whether an Act, or an inaction, on the part of the respondent(s)/alleged contemner(s) amounts to a willfull disobedience of the Tribunal, or not, and as to whether to proceed ahead with its powers to exercise its contempt jurisdiction or not.
78. In order to enable the Tribunal to exercise this power to punish for its own contempt, as bestowed upon the Central and State Administrative Tribunals by Section 17 of the Act, 1985, by the Parliament under Article 323 A (2) (g), in respect of the Central Administrative Tribunal in particular, rules by way of subordinate legislation have been framed under the title of the Rules, 1992, which were Gazette Notified vide No. GSR 757 (E), dated 8th September 1992 as a General Statutory Regulation, in exercise of the residuary powers of the Executive under the Constitution, and were published in the Gazette of India Extra-Ordinary Part (ii), Section 3(i) dated 8th September 1992.
79. Therefore now, when once the Act, and the Rules framed thereunder, specifically lay down that this Tribunal shall exercise the same jurisdiction, powers and authority in respect of contempt of itself, as a High Court has, and may exercise those powers at par with the High Court, under the relevant provisions of the Contempt of Courts Act, 1971, except the sui generis powers of High Courts in respect of contempt of themselves, under Article 215, as the Courts of original records, I am unable to discern any provision of law or even Rules, framed either under the Act, or under the Contempt of Courts Act, 1971, or under Article 323 A of the Constitution of India, or a ratio in the above reproduced and cited judgments of the Honble Apex Court in L. Chandra Kumars case (supra), and T. Sudhakar Prasad (supra), under which an interim or a final order on a contempt petition, passed by this Tribunal in exercise of its original contempt jurisdiction, for the exercise of which power this Tribunal has specifically been equated with being at par with the Honble High Court under the Contempt of Courts Act, 1971, would be subject to an appeal or a revision, or any kind of judicial review, before the High Court, and not before the Honble Apex Court. I would most respectfully submit that so long as a Bench of this Tribunal adheres to the bounds of law as laid down by the Honble Apex Court in Suresh Chandra Poddar (supra), the law as on today does not permit a judicial review of any of the interim or final orders of this Tribunal, passed in its original (though not sui generis) contempt jurisdiction, by the High Court having territorial jurisdiction over that Bench in respect of all of its other orders.
80. I have also examined the law in regard to the writ jurisdiction of the High Courts under Article 226 of the Constitution of India, and the powers of their general superintendence over all courts subordinate to them, which this Tribunal certainly is, as have been bestowed upon the High Courts under Article 227 of the Constitution of India, but have been unable to find any mention in the Constitution, the law, or in the case law, in regard to any powers of the High Courts over the contempt jurisdiction of the Tribunal under Section 17 of the. Act, 1985.
81. Under Article 226, among others writs, the High Courts are empowered to issue writs in the nature of mandamus or certiorari, and give directions to all subordinate judicial and quasi-judicial authorities below them, which jurisdiction now covers the various Benches of the Central Administrative Tribunal, and the State Administrative Tribunals also, after the judgment of the Honble Apex court in L Chandra Kumars case (supra). Also, the High Courts can also choose to exercise their powers of judicial superintendence under Article 227 of the Constitution, which confers upon the High Courts the power of judicial interference with any orders of a subordinate judicial or quasi-judicial body in nature of any court or Tribunal, throughout the territory of the concerned High Court. But the first issue which arises is as to whether the writ petitioners before the Delhi High Court in the instant case could have maintained the writ petition, which was entertained by the High Court?
82. Laying down the law regarding as to who can apply for a writ under Article 226 of the Constitution of India, it was observed by the Honble Apex Court in Calcutta Gas Co. v. State of West Bengal, AIR 1962 SC 1044: 1962 Supp (3) SCR 1 as follows:-
The Article in terms does not describe the classes of persons entitled to apply thereunder, but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal rightThe right that can be enforced should ordinarily be a personal or individual right of the petitioner himself, though in case of the writs like habeas corpus or quo-warranto this rule may have to be relaxed or modified.
83. It has been postulated by the Honble Apex Court in the case of Kalyan Singh v. State of Uttar Pradesh, AIR 1962 SC 1183: 1962 Supp (2) SCR 76 that the right to maintain a Writ Petition postulates a personal right, which must be subsisting till the final hearing of the petition. It has also been held by the Honble Apex Court in Maganbhan Ishwarbhai v. Union of India, AIR 1969 SC 783: 1969 (3) SCR 254: 1970 (3) SCC 400 that only such persons whose rights are directly and substantially invaded, or are in imminent danger of being so invaded, can approach the Court. It has also been held that the personal right to invoke the jurisdiction of the High Courts under Article 226 of the Constitution need not be in respect of a proprietary interest, but it can also relate to an interest of a trustee. In that sense, the two Writ Petitioners before the High Court, in the instant case, in the W.P.(C) No.6530/2005, B.N. Vaish, Director, Directorate of Health Services and Manoj Chauhan, Joint Director, Directorate of Indian System of Medicine & Homeopathy, Govt. of NCT of Delhi, had at best only a fiduciary interest in such matters of payment of back wages to the L.Rs of the deceased, late Shri B.K. Pathak, though they were not even in those respective chairs during the period in question, and they did not have any personal right or proprietary interest, and their personal rights could not have been directly and substantially invaded by any payment being made or allowed to the L.Rs of the deceased late Shri B.K. Pathak. But, the maintainability of the writ petition before the High Court was not contested by the L.Rs of the deceased late Shri B.K. Pathak, and the Honble High Court also did not propound upon as to how and why it chose to invoke its vast and unlimited powers for entertaining the writ petition in the instant case.
84. In the case of Ghulam Qadir v. Special Tribunal (2002) 1 SCC 33: 2001 Supp (3) SCR 504, the Honble Apex Court had laid down the legal position on locus standi, stating that the rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person, except in the case where the writ prayed for is for habeas corpus, or quo warranto. Therefore, whether the Writ Petitioners in the instant case before the Honble High Court, Shri R.N. Baishya, Director, Directorate of Health Services, and Shri Manoj Chauhan, Joint Director, Directorate of Indian System of Medicine & Homoeopathy, Govt. of NCT of Delhi, (who, incidentally, have not been named as the respondents/alleged contemners before us in the present Contempt Petition proceedings), had a locus standi to approach the Honble High Court, in a Writ Petition under Article 226, as a person aggrieved, is a legal point which needed being alluded to. Whether a Government employee, performing his official duties, has a proprietary interest, or the interest of a trustee, in protesting against the orders of this Tribunal in a contempt petition, to make certain further payments, would perhaps need to be examined by the Superior Courts in an appropriate case.
85. It can perhaps be held, as was held in the case of the Attorney General by Lord Denning in the cited case of Attorney General of Gambia vs. NJie, (1961) 2 All E R 504: 1961 AC 617: (1961) 2 WLR 845, that he represented the Crown as a guardian of the public interest. In that sense, the Writ Petitioners before the Honble High Court in the instant case, Shri R.N. Baishya and Shri Manoj Chauhan, can perhaps be taken to be persons aggrieved as guardians of public funds placed at the disposal of the Directorate of Health Services by the Govt. of NCT of Delhi. However, in that case of Attorney General of Gambia (supra), Lord Denning had stated that the words person aggrieved eligible to apply for a writ do include only a person who has a genuine grievance, because an order has been made which prejudicially affects his interests. We shall have to await the pronouncements of the Superior Courts of India regarding as to whether the Union of India, or the Government of a State, or of a Union Territory, directly or through its officers, can apply for a writ under Article 226 of the Constitution of India, in a fiduciary capacity, as a trustee of public funds, whenever an order has been made against the Central Government, or the concerned State Government, which may result in an outgo of public funds from the Consolidated Fund of India, or the Consolidated Fund of the State concerned.
86. In the Calcutta High Court decision in Director General v. Union, AIR 1969 Cal 149, it was held that for examining as to who can apply for a writ under Article 226, two questions must be answered:-
a) Is the petitioner a legal entity or otherwise permitted by statute to initiate legal proceedings in its own name?
b) Has it been affected by the impugned order?
(Emphasis supplied).
87. It was held by the Apex Court that as a collective body, the Union, like an Association, can also apply for a writ, when answers to both the above questions are in the affirmative. But, in the Writ Petition case before the Delhi High Court, the answers to both the questions were negative, in the case of both the petitioners Shri R.N. Baishya and Shri Manoj Chauhan.
88. Orissa High Court also had in the case of Sribatsha v. Board of Secondary Education, AIR 1969 Ori 30, held that since the Managing Committee of a School is a person under Section 3(42) of the General Clauses Act, it can also apply for a writ under this Article 226, if its right is affected. However, whether Government employees can maintain such writs in respect of Government funds, and can apply for such writs in the interest of Government funds, and maintain a claim to such writ, or not, has yet to be decided by a Superior Court. As per the book on Writ Jurisdiction by Justice B.L. Hansaria, while summarizing the English Law on the subject, it has been stated that in English Law, the Court may not grant leave to apply for judicial review, unless it considers that the applicant personally has a sufficient interest in the matter, and as to what is a sufficient interest in the matter is a mixed question of fact and law. The meaning of a person aggrieved would also vary therefore according to the context.
89. According to Professor de Smith, in his book on Judicial Review of Administrative Action, if a defect of jurisdiction is apparent on the face of the proceedings, the application of a writ of prohibition may be brought not only by a party aggrieved, but also by a stranger to the proceedings. As to the law relating to a writ of certiorari, the learned author has stated that the writ of certiorari is only a discretionary remedy, and the Court can extend the discretion to permit an application to be made by any member of the public, and a person aggrieved, i.e., one whose legal rights have been infringed, or who may have any other substantial interest in impugning an order, might be awarded a writ of certiorari ex-debito justitiae, if he could establish any of the recognized grounds for quashing of the order under an appropriate writ.
90. Therefore, under English Law, the category of persons aggrieved has been very widely interpreted, as far as the writ of certiorari is concerned, and perhaps the case law in Indian Jurisprudence also overall supports the same view point. Only in so far as the writ of mandamus is concerned, locus standi is not the rule under common law, and, as mentioned by Prof. Smith in his treatise, an application for a writ of mandamus may be made by any member of the public, and locus standi is not restricted, as in the case of applications for writs of certiorari. However, it may be noted here that in the case of Bar Council of Maharashtra vs. M.V. Dabholkar, 1975 (2) SCC 702 (720): AIR 1975 SC 2092: 1976 (1) SCR 306 as cited by Justice Krishna Iyer, Professor Wade had opined to the contrary as follows:-
.certiorari is not confined by a narrow conception of locus standi. It contains an element of the action popularis. This is because it looks beyond the personal rights of the applicant, it is designed to keep the machinery of justice in proper working order by preventing inferior tribunal and public authorities from abusing their powers.
91. However, firstly the law as laid down by the Honble Apex Court in Baradakanta Mishra (supra) has to be followed, and secondly, as has been pointed out in the legal commentary on the Constitution of India by Sri V. N. Shukla, revised by Shri M.P. Singh, there are important points of difference between the two provisions of the Constitution under Articles 226 and 227. It has been pointed out that in a writ of certiorari , the High Court will only quash the lower Court orders, as well as issue further directions in the matter, as was observed by the Honble Apex Court in the case of Hari Vishnu Kamath vs. Ahmad Ishaque & Ors. (AIR, 1955 SC 233: (1955) 1 SCR 1104. Thirdly, the learned Authors have further pointed out that under Article 226, the power of interference may extend to quashing an impugned order on the ground of an error apparent on the face of record, but under Article 227, the power of interference by the Honble High Courts is limited to seeing that the Courts or the Tribunals under their respective territorial jurisdiction function within the limits of their authority, but not to intervene in their own judicial functioning, as was laid down by the Honble Apex Court in Nagendra Nath Bora Vs. Commr. of Hills Division and Appeals, Assam, AIR 1958 SC 398: 1958 SCR 1240; Mohd. Yunus Vs. Mohd. Mustaqim, (1983) 4 SCC 566: AIR 1984 SC 38; Jasbir Singh vs. State of Punjab, (2006) 8 SCC 294 (pp.299-301, para 10-14); Trinbak Gangadhar Telang vs. Ramachandra Ganesh Bhide, (1977) 2 SCC 437: AIR 1977 SC 1222; State vs. Navjot Sandhu, (2003) 6 SCC 641 : 2003 SCC (Cri) 1545; S.P. Gupta vs. Union of India, 1981 Supp SCC 87. Fourthly, the learned Authors have opined that the judicial superintendence power under Article 226 will only be exercised by the Honble High Court when a petition is moved before it, as has been done in the instant case, while the power of judicial superintendence under Article 227 can also be exercised by the High Court suo moto, it appears, at the instance of the High Court itself, which is not the case in this case.
92. In the instant case, this Tribunal had exercised its own original (though not sui generis) powers, under Contempt of Courts Act 1971, in CP No.61/2004 in OA No.1207/1990, on 07.05.2004, and had arrived at a conclusion and passed orders, going beyond the Tribunals orders on the original side in the OA No.1207/1990 dated 31.7.1992. While acting in its Contempt Jurisdiction, the Bench in 2004 was certainly not in a position to have determined afresh any inter-partes rights, which determination of rights makes the Tribunals order amenable to the writ jurisdiction of the Honble High Court under Article 226, in view of L Chandra Kumars judgment (supra), as has been discussed above. But, applying the ratio of Baradakanta Mishra (supra), such an order passed in 2004 in the Contempt Petition case was not at all a judgment, and was, by implication, not binding upon the respondents/alleged contemners, and any order passed enlarging the scope of the Tribunals order in the O.A. was certainly without any jurisdiction, and an unenforceable order, passed outside the bounds of this Tribunals jurisdiction in a contempt proceedings. Whether the conclusion of law or of a fact, as drawn by a Tribunal or a Court, suffers from any infirmity, can be considered, concluded, and decided, only in an appeal before an Appellate Court. However, when such an order is not a judgment at all, very rightly there is no provision for an appeal to an Appellate Court in the Contempt of Courts Act, 1971, when the court exercising its original power under the Contempt of Courts Act has determined that a contempt does not lie at all. Even if such a further direction or conclusion of the Bench of the Tribunal was wrong, and the Honble Delhi High Court has rightly held that it was wrong, as held in Nizzar Ranther vs. Varghese Mathew, AIR 1992 Ker 312: (1991) 2 Ker. L.T. 223; even a wrong decision made by this Tribunal, while acting within the confines of the jurisdiction of this Tribunal, does not vest the Honble High Court with any unlimited prerogative under Article 227 to correct all species of hardships caused to any of the parties. Therefore, it is a moot question of law as to whether a writ petition filed by the respondents, in the contempt petition before the Tribunal, who had been discharged under the Contempt of Courts Act, 1971, ought to have been entertained by the Honble Delhi High Court at all.
93. Wherever any Court is conferred with the power to take cognizance of alleged contumacious acts, and alleged wilfull disobedience of its own judicial orders, the determination of that Court, having such original jurisdiction to decide about the nature of the disobedience if any being willful or not, and the act complained of being a contumacious act or not, comes to a rest with the decision of that court itself, and if that court declines to take cognizance under the Contempt of Courts Act, 1971, or first takes cognizance, and then later discharges the notices after hearing the contempt case, such a decision closing the contempt proceedings and discharging the contemners is not amenable to an appeal. This is the ratio which appears to emerge from the ratio in the cases of Baradakanta Mishra (supra), and J.S.Parihar vs. Ganpat Duggar & Ors.: AIR 1997 SC 113=(1996) 6 SCC 291. Hence, it is, therefore, my most respectful and humble submission that by virtue of the operation of Section 17 of the Act, no appeal can therefore lie from the orders passed in a contempt petition by this Tribunal dismissing the contempt petition, even before the Honble Apex Court, under Article 136 of the Constitution of India, since such an appeal lies before the Honble Apex Court normally only when the contemners are convicted. However, it must be stated here that an appeal would still lie before the Honble Apex Court even in such cases, under the provisions of Article 142, since the Apex Court of India is the most powerful Court in the whole world, and it dispenses complete justice, as opposed to only mere justice within the confines of the Constitution, or any law enacted thereunder.
94. Appeal lies under the Contempt of Courts Act, 1971, only when an act is held to be contumacious, or an alleged disobedience of the orders of this Tribunal, are held to be contemptuous of its authority, and, therefore, contumacious, and cognizance is taken of the Civil or Criminal Contempt, and charges are accordingly framed, and, after following the due process of law, some punishment is imposed upon the contemner. But when once the respondents/alleged contemners have been let off, rightly or wrongly, while disposing of the contempt petition, and the notices under the Contempt of Courts Act, 1971, read with the concerned applicable Rules, 1992, issued to such respondents/alleged contemners themselves have been discharged, no legal issue for any further determination on merits survives, and, most respectfully, one is unable to fathom as to how the provisions of Article 226 and 227 of the Constitution can then get attracted, even though the Honble High Court was right in concluding that such an order of the Tribunal of enlarging the scope of the relief as provided in the order in O.A. while discharging the respondents/alleged contemnors, and discharging the notices issued, was wrong in law. This respectful submission flows from the ratio as one understands to have been laid down by the Honble Apex Court itself in the case of Baradakanta Mishra (supra).
95. As has been discussed above also in detail, it has been held time and again that judicial orders by themselves cannot and do not violate fundamental rights. Most respectfully it is submitted that this axiom will apply more so in contempt proceedings cases, where the respondent/alleged contemner has ultimately not been found to be guilty, of either any civil or criminal contempt, and has been let off, and the notices issued against him have been discharged. It can not then be said that such an order, closing the legal proceedings in the contempt petition, after holding that the alleged act was not a wilful disobedience of the orders of the Tribunal or court, and discharging the notices issued to the concerned respondent/alleged contemner under the Contempt of Courts Act, 1971, have in any manner violated any of the fundamental rights of the respondents in the Contempt Petition, and it appears that such an order cannot give rise to any writ or judicial supervisory proceedings before the Honble High Courts under Articles 226 or 227 of the Constitution, since no portion of the inter-partes rights could have been affected or adjudicated upon, and the order passed was, in itself, bad in law and untenable, for having enlarged the scope of the relief granted earlier in the O.A. In the case of Naresh Shridhar Mirajkar vs. State of Maharashtra, AIR 1967 SC-1: 1966 (3) SCR 744; the Honble Apex Court has held that any such judicial order can be challenged in appeal, but relief under Articles 32 or 226 cannot be prayed for against it, and such an order cannot be attacked in a proceedings under Articles 32 or 226, on the ground that the order violates the fundamental rights of a citizen under Article 19 of the Constitution of India, and the Honble Apex Court had further held that no writ under Article 32 (or Article 226) of the Constitution could be issued, unless the action taken of closing down the contempt proceedings, and discharging the alleged contemner(s) is procedurally ultra-vires. Since the procedure adopted by the concurrent Bench while closing down the Contempt Petition was not ultra vires, it is most respectfully submitted that a writ petition did not lie before the Honble High Court in this matter.
96. In the context of the categorical findings of the Honble Apex Court in the case of Baradakanta Mishra (supra), it is most respectfully submitted that there appears to be an absence of any legal or constitutional provision whatsoever for the High Courts to either entertain a writ under Article 226, or entertain a prayer for an order under Article 227 of the Constitution, in all those cases where the respondent/alleged contemner has not at all been punished in the contempt petition, and, rightly or wrongly, the CP case has been closed, with the notices issued under the Contempt of Courts Act, 1971, having been discharged. It was held by the Honble Allahabad High Court in Asiatic Eng. Co. Vs. Achhru Ram, AIR 1951All 746 that the powers of the Honble High Courts under Article 226 confer upon them a discretion of most extensive nature, but the Honble Apex Court had added that the very vastness of the powers conferred on the High Courts also imposes on them the responsibility to use them with circumspection, and exercise the writ jurisdiction only in accordance with the judicial considerations, and well established principles, as was held by the Honble Apex Court also in Union of India Vs. W. N. Chadha, 1993 Supp (4) SCC 260: AIR 1993 SC 1082. Actually, in the case of Union of India Vs. S. P. Anand, (1998) 6 SCC 466:AIR 1998 SC 2615, the Honble Apex Court had held that a writ petition under Article 226 may not be entertained by the Honble High Courts, if prima facie there is no question of importance, and no triable or arguable issue has been raised in the petition, and in such cases, the petition must be dismissed in limine, at the stage of preliminary hearing itself.
97. Most respectfully, with utmost humility, it is submitted that the powers of the Honble High Courts in writ jurisdiction under Article 226 can perhaps extend only to the orders of the Tribunal in an Original Application, or a Miscellaneous Application, or a Review Application, affecting inter-partes rights, but may perhaps not extend to an order under its contempt jurisdiction, where, rightly or wrongly, the CP is dismissed by the Tribunal, in exercise of its own original powers, and the notices issued themselves stand discharged. Apart from the above cited cases of Baradakanta Mishra and J.S.Parihar (supra), this conclusion appears to also flow from the Honble Apex Courts observations in M.P. Mittal vs State of Haryana, (1984) 4 SCC 371:AIR 1984 SC 1888, in which it was held that remedies under Article 226 are available with the High Courts for doing justice, and correcting injustice, and not the other way round.
98. In its wisdom, which may have been right or wrong, a Bench of this Tribunal had observed in a Contempt Petition order that the financial advantage or gain which had accrued to the informant contempt petitioner was not in substantial compliance of the Tribunals order, and still held that no case of willful disobedience, leading to a civil or criminal contempt, was made out against the respondents/alleged contemners, as had been tried to be made out by the informant petitioner of the contempt petition. Then, perhaps in exercise of its vast and unlimited powers to provide discretionary remedy under Article 226 of the Constitution, the Honble High Court had directed this Tribunal to re-open the contempt petition case, and to determine on the points of fact and the law in that contempt petition case. The Honble High Court could have certainly given such directions in exercise of the same vast and unlimited discretionary jurisdiction under Article 226, if it was a case of a wrong determination of inter partes rights by this Tribunal while deciding an Original Application, or a Miscellaneous Application, or even a Review Application. Also, the further direction regarding inter partes rights issued by the Tribunals Bench on 07.05.2004, going beyond the original order in the O.A. was wrong, but it is a moot question of law as to whether the remedy to correct that wrong lay through the route of the re-opening of a contempt jurisdiction case, or a case on the original side, or through another third route, which can be explored.
99. The Honble Apex Court has, in the case of State of Punjab VS. Surinder Kumar, (1992) 1 SCC 489: AIR 1992 SC 1593, held that the Honble High Courts did not have a general power of doing complete justice in a case, like which the Honble Supreme Court itself has under Article 142 of the Constitution. So, even if the further order on facts and inter partes rights issued in the Contempt Petition by this Tribunals Bench on 07.05.2004 was wrong, but at the same time the alleged contemner(s) had been let off after having been directed to obey a wrong or incorrect further order on facts and inter partes rights passed while dismissing the contempt petition, perhaps the Honble High Court could not have provided complete justice, and, in that process, directed this Tribunal to reopen the contempt case against the respondent(s)/alleged contemner(s) afresh, and then decide the inter partes rights in that C.P. case, like has been done in the instant case. It is most respectfully submitted that in a case like the present one, being faced with an order passed in contempt proceedings which had travelled beyond the contours of the Tribunals original side order in an O.A.,, the respondents/alleged contemners could perhaps have adopted only the third route of approaching the Honble Apex Court under Article 142, with a prayer for doing complete justice, and it appears that no proceedings could lie before the Honble High Court, even after L. Chandra Kumar (supra).
100. As was held by the Honble Apex Court in B. C. Chaturvedi Vs. Union of India, (1995) 6 SCC 749: AIR 1996 SC 484, under the exercise of their vast discretionary powers under Article 226 of the Constitution, the Honble High Courts may mould or design relief to a petitioner in an appropriate case, particularly where punishment or penalty challenged before it is shockingly disproportionate. But, there is no rule, or regulation, or Law, or provision in the Constitution, governing situations like in the instant case, where there is an incorrect order of the Tribunals Bench in a C.P. case, going beyond the contours of the original determination of the factual situation, and inter partes rights, and instead of only seeking enforcing compliance with the orders of this Tribunal passed on the original side earlier, issuing some further fresh directions, which affect the inter partes rights, and therefore could not have been passed in contempt jurisdiction.
101. It was held by the Honble Apex Court in Shitla Pd. Shukla Vs. State of U.P., 1986 Supp SCC 185: 1986 (3) SCR 106: 1986 (2) LLJ 298: AIR 1986 SC 1859 that the superior Courts should not overturn a determination of a lower Court, unless it would be unfair not to do so. Whenever any determination of inter-partes rights is involved, it is done by this Tribunal in its orders in an Original Application, or a Miscellaneous Application, or a Review Application. However, when the scope of such a determination already made earlier is enlarged through an incorrect order issued later in a contempt petition, even after determining that no contumacious act was committed, whether such an incorrect order can be overturned by the Honble High Courts or not, in exercise of its vast jurisdiction under Article 226, has yet to be held or decided by the Honble Apex Court, to the extent limited research on the relevant case law has revealed.
102. The Honble High Courts undoubtedly also have judicial supervisory powers over this Tribunal, and in exercise of this judicial supervisory power, the High Court does not have to hear an appeal, but only to examine as to whether the subordinate Courts order challenged before it is lawful or not. But, it is most respectfully submitted that even in respect of lawfulness, distinction has to be drawn between illegalities that have been committed within the exercise of that Courts/Tribunals inherent jurisdiction, and those which may be held to be per se illegal, and affecting or exceeding the jurisdiction. It is well settled law that even if an illegality has been committed by a subordinate Court within the exercise by it of that subordinate Courts inherent jurisdiction, powers of the Honble High Court under Article 226 may not be exercised, and it is only in regard to the illegalities committed which are outside or exceeding the jurisdiction, that the powers under Article 226 can be exercised by the Honble High Court. In the instant case, while deciding the issue of substantial compliance with its previous orders or not, which was before it in the contempt petition, and regarding the actions of the respondents in the contempt petition amounting to discernible willful disobedience or not, and being contemptuous or not, the issue at hand before the Tribunals Bench was well within the jurisdiction of the Bench, though it took upon itself an additional responsibility beyond its jurisdiction to issue a clarification travelling or traversing beyond the Tribunals original order in O.A., and then to drop the contempt proceedings, close the CP case, and discharge the notices issued against the respondent(s)/alleged contemner(s). It has therefore to be seen as to whether such wrong further directions, issued beyond the original determination of inter partes rights in the O.A., could be called to be within the Tribunals jurisdiction or beyond it. Most respectfully, and with utmost humility, it is submitted that it appears that in the facts and circumstances of this case, even though the Bench had issued an unenforceable clarification, and had apparently travelled beyond the original determination, it appears that with such an infringement of its jurisdiction, it may not be possible to categorize it as a case of the Bench that day having acted entirely outside of its jurisdiction, and perhaps it may not be possible to bring this case under the category of an unlawful order, inviting the vast and unlimited jurisdiction available to the Honble High Courts under Article 226 of the Constitution of India for setting right illegalities committed, if any, which are outside the jurisdiction of this Tribunal.
103. Also, errors apparent on the face of record, are clearly subject to the judicial supervision powers of the Honble High Courts under Article 226, even though the legal position with respect to other errors of law is not so clear. In the instant case, the Bench in 2004 appears to have committed an error of law in over-reaching its jurisdiction in Contempt proceedings. However, in exercising its judicial supervision power, the Honble High Court does not go into the merits of the controversy like an Appellate Court, though of course the merits of the controversy may have influenced the correct or incorrect exercise of a statutory power. The circumstances and principles which can give rise for the Honble High Court to entertain petitions under their jurisdiction in Article 226 can be bifurcated into many subject heads, like has been done in the above cited commentary on Constitution of India by V. N. Shukla under the headings (i) Alternative remedy, (2) Delay, (3) suppression of facts,(4) Futile writ, (5) Disputed questions of fact, (6) Perpetuation of illegality, (7) Dismissal in limine, (8) Joinder of Parties etc. But, as to whether unenforceable observations made by the Tribunals Bench on disputed questions of fact, while acting under the contempt jurisdiction, would invite the wrath of the Honble High Courts under Article 226 or not, does not appear to flow from the ratios laid down by the Honble Apex Court in L. Chandra Kumar (supra) or in T.Sudhakar Prasad (supra), or in Baradakanta Mishra (supra).
104. It appears that the instant case will qualify for presuming that the Honble Delhi High Court exercised its vast and unlimited powers under Article 226 of the Constitution of India on account of certain disputed questions of facts not having been conclusively settled in the order passed by the Tribunal in 2004 in the contempt petition case. However, the fact remains that in contempt jurisdiction, this Tribunal was not supposed to deal with any disputed questions of facts, which are looked into and adjudicated and decided upon only in Tribunals orders in Original Applications, and MAs, and in exercise of its contempt jurisdiction, in fact this Tribunal ought not to have even commented upon, or expounded upon any disputed questions of fact. The only question of fact on which the dispute had to be examined by the Tribunal in the contempt petition then pending before it was to decide as to whether there was substantial compliance with the Tribunals earlier orders in the O.A. or not, and as to whether there was a disobedience, in any of the respondents/alleged contemner(s) not following and obeying the orders of this Tribunal passed in an O.A. or MA, or any interim orders, and secondly, if there was any such disobedience, whether such disobedience amounted to an act of wilfull disobedience, inviting the jurisdiction of the Tribunal under the Contempt of Courts Act, or not.
105. The Honble Apex Court has held in Siliguri Municipality Vs. Amlendu Das, (1984) 2 SCC 436: AIR 1984 SC 653; Union of India Vs. Oswal Wollen Mills Ltd., (1984) 2 SCC 646:AIR 1984 SC 1264 that where rights claimed by the applicants cannot be determined in the summary proceedings of Article 226 writ jurisdiction before Honble High Court, in exercise of its discretion, the High Court shall refuse to interfere by issuing writ under Article 226 in such cases. However, at the same time, in Jagdish Prasad vs State of U.P. (1970)3 SCC 631, it was held by the Honble Apex Court that it is only as a matter of discretion, and not of jurisdiction, that the High Court does not enter into such matters, which in the exercise of its vast jurisdiction, it may very well do so, in appropriate cases, and even determine questions of facts. However, in such a case, the determination of the facts will then be done by the Honble High Court itself, in exercise of its extra ordinary discretionary powers, and the determination cannot then be left by the Honble High Court half way through, or the matter of determination returned back by the Honble High Court to the lower Court only with remarks, or the issue itself returned back to the Tribunal for a fresh determination, after the Honble High Court had itself entered into the realm of facts, and had taken up the matters of fact also into its own hands.
106. As per the ratio of the Honble Apex Court in L. Chandra Kumar (supra), in a writ petition under Article 226 arising out of the orders of the Tribunal in an Original Application, or MA, or an Interim Order, the Honble High Court can either set aside, or completely ignore the findings of facts arrived at by this Tribunal, only if it arrives at its own independent conclusion that there was no evidence to justify such a conclusion, as had been arrived at by the Tribunal, and it considers that no reasonable person could possibly have come to the conclusion which the Tribunal had come to, or, in other words, the Tribunal had arrived at a finding which was perverse in law, as was held by the Honble Apex Court in the cases Chandravarkar SitaRatnaRao Vs. Ashalata, (1986)4 SCC447: AIR 1987 SC 117, 122, Sarnam Singh Vs. Deputy Director of Consolidation, (1999) 5 SCC 638. But this ratio does not appear to be applicable to cases decided by this Tribunal in its contempt jurisdiction, and the ratio laid down in Baradakanta Mishra (supra) requires to be considered in this context for the purpose of bringing clarity for the future.
107. The Honble Apex Court has propounded further on the powers of the Honble High Courts while issuing writs of certiorari in the case of P. Kasilingam Vs. P.S. G. College of Tchnology, (1981) 1 SCC 405:AIR 1981 SC 789. See also K.r. Verma Vs. Muncipal Committee, (1981) 2 SCC 70: AIR 1981 SC 1965; Indu Bhushan Gupta Vs. State of U.P., (1979) 4 SCC 47: AIR 1979 SC 1857, laying down the law that the High Court transgresses its jurisdiction if it enters upon the merits of the controversy by embarking upon an inquiry into the disputed facts by itself, since such a writ of certiorari goes only on two points, one, the area of jurisdiction, and the other the qualifications and conditions of exercise of such jurisdiction by the lower court. It was held by the Honble Apex Court that a writ of certiorari will not issue as if under a cloak of an appeal in disguise. The writs of certiorari are obviously intended to enable the Honble High Courts to issue them in grave cases, where the subordinate Courts, or Tribunals, or quasi-judicial bodies, or officers, act wholly without jurisdiction, or in excess of it, or refuse to exercise jurisdiction vested in them, or there is an error apparent on the fact of the record, and such act, omission or error or excess has resulted in manifest injustice. But it is a moot question of law as to whether an order of this Tribunal in its contempt jurisdiction, though partially incorrect in having commented upon the facts also, but at the same time accepting the substantive compliance of or obedience of the orders of this Tribunal by the respondent authorities, and refusing to treat the default, if any, to be a willful default, thereby amounting to a contemptuous or contumacious act, would amount to a refusal by the Tribunal to exercise the jurisdiction vested in it under the Contempt of Courts Act, 1971, which could give rise to a writ of certiorari going from the Honble High Court. It is most respectfully and humbly submitted that acceptance of the substantial compliance to its orders by the alleged contemner(s) and closing the contempt petition case, and discharging the notices issued, itself amounts to a lawful exercise of the Tribunals original (though not sui generis) contempt jurisdiction, and, therefore, a petition for a writ of certiorari perhaps did not lie against such an order.
108. In fact, in the cases of Workmen Vs. Dodsal (P) Ltd. (1979)4 SCC 535: AIR 1979 SC 1072; Cox & Kings Vs. Workmen, (1977) 2 SCC 355: AIR 1977 SC 1112, the Honble Apex Court has held that the High Court was not justified in re-appreciating the materials by going behind the original award given by the Industrial Tribunal and displacing the interpretation merely because another interpretation was possible. In the instant case before us also, another interpretation was possible, that the concurrent Bench could have on 07.05.2004 held the case to be a case of deliberate non-compliance and disobedience of the earlier orders of the Tribunal in the O.A., and could have examined the non-compliance portion, and could have arrived at a conclusion that such non compliance or default in compliance, was willful, amounting to a contemptuous or contumacious act, and could have then proceeded ahead to punish the contemners. But just because such an interpretation was also possible, which could perhaps have been taken bona-fide that day by another different concurrent Bench, in the same set of facts also, it is most respectfully and humbly submitted that still it perhaps may not have been a sufficient ground for a writ of certiorari to go out from the Honble High Court to this Tribunal on a petition filed by alleged contemners, who had not been punished, and even notices for contempt case against whom had been discharged, ordering for revival of the contempt proceedings against them, themselves, and ordering for this Tribunal re-examining the facts of the contempt case afresh, that too by treating the informant petitioner, who was not a proper party in the contempt case before this Tribunal, to be a party capable of giving its consent for such a revival of his already closed contempt petition case, even though his role and legal function as an informant contempt petitioner had come to an end as soon as his petition had been entertained by the Tribunal in its contempt jurisdiction, and it became a case between the Tribunal and the alleged contemners.
109. It cannot be anybodys case in the instant case that the concurrent Bench of this Tribunal, which decided to close the contempt proceedings case pending before it against the respondent(s)/alleged contemner(s), and discharge the notices issued to them under the Contempt of Courts Act, 1971, was acting in excess of its legal competence or authority, since the competence or authority to determine as to what amounts to the Tribunals contempt is vested upon each of the 33 Benches of this Tribunal through Section 17 of the Act, read with Contempt of Courts Act, 1991, as upheld by the Honble Apex Court in T. Sudhakar Prasad (supra) cited above also. The decision which was taken by the concurrent Bench was the decision of a court, which was clearly under a duty to act judicially, and had indeed acted judicially. Therefore, most respectfully and humbly, it appears that the pre-conditions for the issuance of a writ of certiorari, as laid down by Atkin, L.J., in the case R. Vs. Electricity Commissioners (1924) 1 KB 171 at pages 204-205, did not appear to have been satisfied, to have persuaded the Honble High Court to issue such a writ of certiorari. It is also not anybodys case that the principles of natural justice were not followed by the concurrent Bench of this Tribunal while disposing of the contempt petition concerned.
110. The grounds for issuance of a writ of certiorari by the Honble High Court to a judicial or quasi judicial body have been summarized to be the following three (A) want of jurisdiction, or the Court having acted in excess of its jurisdiction , (B) violation of procedure, or disregarding of principles of natural justice, (C) error of law apparent on the face of the record. As has been mentioned above also, it cannot be anybodys case that the concurrent Bench deciding the CP did not have jurisdiction, though it perhaps infringed that contempt jurisdiction in having also issued further directions on a point of fact, which was not possible to be done in a Contempt Petition case. So, it is a moot question of law as to whether the infringement of its jurisdiction by the Bench on 07.05.2004 satisfied the first of the above three grounds, and thus could have been the basis for the issuance of a writ of certiorari to this Tribunal. In so far as the second ground is concerned, there has been no averment or allegation that the concurrent Bench had acted in violation of the prescribed procedure, or in disregard of the principles of natural justice, and so that ground also could not have given rise for a cause for a writ of certiorari to be issued by the Honble High Court to this Tribunal.
111. Therefore, it appears that perhaps the only ground, on which the Honble High Court could have considered for issuance of a writ of certiorari to this Tribunal could have been the third ground, namely error of law apparent on the face of record. But, as has been held in a catena of cases, such error must be a manifest error, apparent on the face of the proceedings, for example when it is based on clear ignorance or disregard of the provisions of law. In other words, as was held by the Honble Apex Court in T. C. Basappa Vs T. Nagappa, AIR 1954 SC 440: (1955) 1 SCR 250; Hari VishnuKamah Vs. S Ahmad Ishawue, AIR 1955 SC 233, 24344(1955) 1 SCR 1104; Prem Singh Vs. Dy. Custodian Genera, Air 1957 SC 804, it is only a patent or self evident error of law which can be corrected by certiorari, but not a mere wrong decision. On the other hand, in the case of an error of fact, however grave it may appear, errors in respect of facts cannot be corrected by issuance of a writ of certiorari, because, as has been held by the Honble Apex court in Syed Yakoob s. K. S. Radhakrishnan, AIR 1964 SC 477: (1964) 5 SCR 64;Sri Ambica Mills Vs. S. B. Bhatt, AIR 1961 SC 970; (1961) 3 SCR 220; Mukunda Bore Vs. B. Buragohain, (1980) 4 SCC 336: Air 1980 SC 1524, the jurisdiction of the Honble High Court to issue a writ of certiorari is in exercise of a supervisory jurisdiction, and the Honble High Court does not act as an appellate court in exercise of the supervisory jurisdiction.
112. It has also been held that what is an error apparent on the face of record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its nature, and it must be left to be determined judicially, on the facts of each case, as observed by the Honble Apex court in Inder Singh Vs. Chief Commissioner, AIR 1963 Punj 158; & in Hari Vishnu Kamath Vs. S. Ahmad Ishaque, AIR 1955 SC 233: ( 1955) 1 SCR 1104. However, errors of the lower courts or Tribunals, made only in appreciation of the documentary evidence or affidavits available before them, can only be in the nature of errors in drawing or omitting to draw inferences, and are not errors of law apparent on the face of record, as was held by the Honble Apex Court in Nagendra Nath Bora Vs. Commr., Hills Division, AIR 1958 SC 398: 1958SCR 1240. Therefore, in the instant case, when while dismissing the contempt petition, the concurrent Bench had appreciated the facts regarding the allegations of contempt on the basis of evidence produced before it, and arrived at a conclusion that no case of contempt was made out, and that there was no disobedience of the orders of this Tribunal amounting to a contemptuous or contumacious act, and therefore, it had decided to drop the contempt proceedings against the respondents/alleged contemners, and had discharged the notices issued to them under the Contempt of Courts Act, it may perhaps have been in error in drawing or omitting to draw inferences from the documents and pleadings available before the Bench, but, as held by the Honble Apex Court, this cannot be termed to be an error of law, apparent on the face of record, inviting the exercise of supervisory jurisdiction of Honble High Court for the issuance of a writ of certiorari under Article 226 of the Constitution of India.
113. This was also the ratio of the Honble Apex Courts decision in the case of Syed Yakoob vs. K.S. Radhakrishnan AIR 1964 SC 477: (1964) 5 SCR 64. In that case, the Honble Apex Court has held that when the question decided upon by the Tribunal and quashed by the Honble High Court related to a pure question of fact, the Honble High Court, even in exercise of its vast powers to issue a writ of certiorari under Article 226 of the Constitution of India, had no jurisdiction to interfere with the findings recorded by the Tribunal. In fact in that case Gajendragadkar, J ( as His Lordship then was ) had clearly stated in the judgment that an error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. The only cases where a finding of fact might be impugned on the ground of error of law apparent on the face of the record are (i) erroneously refusing to admit admissible and material evidence, (ii) erroneously admitting inadmissible evidence which influence the finding, and (iii) a finding of fact based on no evidence. But the adequacy or sufficiency of evidence led on a point, and the inference of fact to be drawn from the said finding, are within the exclusive jurisdiction of the tribunal, and the said points cannot be agitated before a writ court.
114. In fact, in the cases of Satyanarayan Laxminarayan Hegde vs. Mallikarjun BhavanapaTirumal, AIR 1960 SC 137: (1960) 1 SCR 890; Giani Zail Singh Vs. Election Tribunal, AIR 1964 Punj 105, 109, it was held by the Honble Apex Court that: It is well settled that where two views are possible, one of which has been taken by the subordinate tribunal, and where long drawn process of reasoning is necessary to decide which view is correct, it is not a case of error apparent on the face of the record and the error cannot be quashed by certiorari.
115. Again, it may be mentioned that the Honble High Court issuing a writ of certiorari, as pointed out above, acts in the exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Honble High Court does not review the findings of fact reached by the inferior court or tribunal, even if they be erroneous. This is on the principle that a court which has jurisdiction to decide upon some matter before it, has jurisdiction to decide wrongly, as well as rightly, and when the legislature has not chosen to confer a right of appeal against the decision, it would be defeating its purpose and policy, if a superior court were to rehear the case on the evidence and substitute its findings. The function of a writ of certiorari is only to quash the offending order, and not to substitute a new order in its place. The Honble Apex Court had in case of Hari Vishnu Kamat Vs. S. Ahmad Ishaaque, AIR 1955 SC 233, 240: (1955) 1 SCR 1104 (supra) held as follows:-
The court issuing certiorari to quash, however, could not substitute its own decision on the merits or give directions to be complied with by the court or tribunal. Its work was destructive: it simply wiped out the order passed without jurisdiction, and left the matter there.
116. Now, it may be further examined as to whether the writ issued to this Tribunal under Article 226 could have been in the nature of a writ of mandamus or not. Mandamus is a judicial remedy, which is in the form of an order from a superior court to any Government, court, corporation or public authority, to do or to forbear from doing some specific act, which that body is obliged under law to do, or refrain from doing, as the case may be, and which is in the nature of a public duty, and in certain cases, in the nature of a statutory duty, as opined by the learned Author A.T. Markose: Judicial Control of Administrative Action in India, P. 364. It cannot be issued to compel an authority to do something against the statutory provision- Hope Textiles Ltd Vs. Union of India, 1995 Supp(3) SCC 199.
117. When after having satisfied itself, a concurrent Bench of this Tribunal had come to a conclusion that the contempt petition did not lie, as the orders of the Tribunal had been substantially complied with, and the gaps in compliance, if any, as mentioned by that Bench in that order itself, did not amount to a willful disobedience, amounting to a contemptuous or contumacious act, and had gone ahead to close the contempt case, and discharge the notices issued to the alleged contemners, then the Bench and this Tribunal had become functous officio. The Contempt of Courts Act, 1971, or Section 17 of the AT Act, does not provide for either the same Bench, or another Bench of the Tribunal, to revive the closed contempt case, and to again examine the same issue of contempt arising or not, from the same set of facts. Therefore, in view of the finding of the Honble Apex Court in numerous cited cases, it appears further that a writ of mandamus cannot also be issued to compel this Tribunal to once again reopen the closed contempt case, re-determine the aspect of compliance or not, willful disobedience or not, the presence of a contemptuous or contumacious act or not, on the same string of facts. Therefore, it appears that the writ issued by the Honble High Court order may not have been in the nature of a writ of mandamus to the Tribunal, to rehear the same contempt petition afresh once again, contrary to the statutory provisions, even though it is well recognized that the object of a writ of mandamus is to remedy defects in justice, and to ensure that justice may be done in all cases where there is a specific legal right, but no specific legal remedy for enforcing that right, and that a writ of mandamus may also be issued in cases where, although there is an alternative legal remedy, but the mode of redressal through the alternative remedy is less convenient, beneficial, and effectual, as defined in Halsburys Laws of England, (4th Edn.) (Vol. 1. Para 89).
118. But, in the instant case, the determination of inter partes legal rights was long over, at the time the order in O.A. was passed, and it cannot be said that the petitioner in the contempt petition, invoking the contempt jurisdiction of the Tribunal, was seeking through that contempt petition to determine a specific legal right, and that the contempt petition was filed for enforcing a right which was yet to be determined. In fact, it has been held by the Honble Apex court in Mani Sabraj Jain Vs. State of State of Hasryana (1977) 1 SCC 486: AIR 1977 SC 276 that no one can ask for a writ of mandamus to be issued without a legal right, which must be judicially enforceable, as well legally protected, giving rise to a legal grievance. A contempt case is filed and decided by this Tribunal only when a person is denied a legal right as already determined, by some one who has a corresponding legal duty. Therefore, a writ of mandamus could have been issued by the Honble High Court to the authority concerned, who was denying the already determined legal right to the petitioner in contempt proceedings, which in this case were the petitioners in the writ petition themselves, which writ petition was filed by those who were the alleged contemners before the Tribunal. But, most respectfully, and with all humility, it is submitted that a writ of mandamus could not have been issued firstly on the prayer and petition of the alleged contemners who were stated to have denied some rights to the petitioners in the contempt petition filed before this Tribunal, and, secondly, a writ of mandamus could not have been issued to this Tribunal by the Honble High Court, directing this Tribunal to rehear the contempt petition case, as if this Tribunal had denied some rights which had accrued to the alleged contemners, as has happened in the instant case. Therefore, it appears that the writ orders issued by the Honble High Court cannot also be deemed to be directions issued to this Tribunal by way of a writ of mandamus.
119. A writ of mandamus can be issued only to compel the performance of a plain and positive duty, and upon the application of one who has a civil right to demand such performance, but when he has no adequate remedy. But a writ of mandamus cannot be issued when the duty is a discretionary duty. Taking cognizance of contempt petitions and determining as to whether there has been a substantial compliance with its orders passed on the original side, and the gaps in compliance, if any, whether they give rise to a charge of willful disobedience of the orders of this Tribunal, or not, which may be counted as a contumacious act, is totally a discretionary function of the Tribunals Bench, which hears the contempt petition case, and the appreciation of the contumaciousness of the alleged wrongful act may even vary from Bench to Bench also. Since, it is not a mandatory function for the Tribunals Bench to necessarily conclude in each and every case that the alleged act was a contumacious act, and such conclusion is a discretionary judicial function of the Tribunal, it appears that a writ of mandamus from the Honble High Court under Article 226 may not lie in such circumstances.
120. Under the facts and circumstances, the substance and import of the above respectful submissions on the points of law is that just like a writ of certiorari did not lie, in the instant case, perhaps a writ of mandamus also did not lie, even under the vast and unlimited discretionary powers of writ jurisdiction available to the Honble High Court under Article 226 of the Constitution of India.
121. Another issue is as to whether the Honble Court has, while passing its orders, exercised its power of superintendence over this Tribunal under Article 227 of the Constitution of India. The Apex Court has held that the supervisory jurisdiction of the Honble High Courts under Article 227 extends to keep the subordinate Tribunals within the limits of their authority, and ensuring that they obey the law, as was held in State of Gujarat Vs. Vakhat Sinhji Vajesinhji Veghela, AIR 1968 SC 1487. However, when it is supervisory power, it has to be exercised as such, as a part of supervision, and it is then distinct from appellate power, as was held by the Honble Apex Court in the case of Mohan Amba Prasad Agnihotri Vs. Bhaskar Balwant Aher, (2000) 3 SCC 190. It is true that the powers of superintendence of the Honble High Court under Article 227 are in addition to the powers of revision under any legislation, as held by the Honble Apex Court in Baby Vs. Travancore Devaswom Board, (1998) 8 SCC 310, and also up held by the Honble Apex Court once again in the case of L. Chandra Kumars case (supra). However, whether such supervisory jurisdiction extends also to the exercise by this Tribunal of the original power of hearing cases related to its own contempt, made available to this Tribunal by the legislature under Section 17 of the AT Act read with the Contempt of Court (CAT ) Rules, 1992, has not been examined, explained, held, or laid down by any Honble High Court, or by the Honble Supreme Court in any case so far, and not even in the cases of L. Chandra Kumar (supra) and T. Sudhakar Prasad (Supra).
122. According to the above mentioned commentary on Constitution of India by V. N. Shukla, revised by M.P. Singh, the following general principles can be extracted from the various judgments of the Honble Apex Court in regard to the supervisory powers of the Honble High Court over this Tribunal, and which, for the sake of brevity, may be reproduced from the book as it is as below:
Judicial orders not only of courts in the ordinary sense but also of tribunals are amenable to the supervisory jurisdiction of the High Court, and it is in regard to the orders of tribunals that the power of the High Court has very frequently been invoked. Under this article the following principles with reference to the exercise of superintending power over judicial orders may be stated:
(a) The power under the article can be exercised even in those cases in which no appeal or revision lies to the High Court-Jagi Singh Vs. Ranbir Singh, (1979) 1 SCC 560: AIR 1979 SC 381.
(b) The power should not ordinarily be exercised if any other remedy is available to the aggrieved party, even though the pursuing of that remedy may involve some inconvenience or delay- M. G. Burjarji Vs. S. N. Misra, (1977) 1 SCC 227: AIR 1976 SC 2446.
(c ) Under Article 227 the power of interference is limited to seeing that the tribunal functions within the limits of its authority. Narendra Nath Bora Vs. Commr., Hills Div., AIR 1958 SC 398: 1958 SCR 1240. The principal grounds for interference, therefore, would be
(i) want or excess of jurisdiction, Gulab Singh Vs. Collector of Farrukhabad, AIR 1953 All 585.
(ii) Failure to exercise jurisdiction, Waryam Singh Vs Amarnath, AIR 1954 SC 215: 1954 SCR 565 and
(iii) Violation of procedure or disregard of principles of natural justice. Narayandeju vs. Labour Appellate Tribunal, AIR 1957 Bom 1142.
The High Court can interfere with interim orders of Courts and tribunals if they are made without jurisdiction. Industrial Credit and Investment Corporation of India Ltd. Vs. Grapco Industries Ltd., (1999) 4 SCC 710: AIR 1999 SC 1975.
(d) In exercising the supervisory power, the High Court does not act as an appellate Tribunal. It will not review or re-weigh the evidence upon which the determination of the inferior tribunal purports to be based, or to correct errors of law in the decision. In D. N. Banerji vs. P.R. Mukherjee, the question was whether on the facts of the case, the dismissal of the employee was wrongful or justified. Visalakshmi Vs. Anjanuyalu Chetti, AIR 1958 Mad 242. The Supreme Court held that the High Court could not interfere with the decision of the Tribunal. A mere wrong decision, with nothing more is not enough to attract the jurisdiction under Article 227. Where the two lower courts have reached the same conclusion on the question of facts, the High Court could not reassess the evidence under Article 227. M.M. Amonkar Vs. S. A. Johari, (1984) 2 SCC 354: AIR 1984 SC 931. Also Jagdish Prasad Vs. Angoori Devi, (1984) 2 SCC 590L AIR 1984 SC 1447. The findings of fact of an inferior Court or Tribunal cannot be set aside or ignored unless there is no evidence to justify such a conclusion or no reasonable person could possibly have come to the conclusion which the Court or Tribunal has come to, or in other words it is a finding which is perverse in law. Mani Nariman Daruwala Vs. Phiroz N. Bhatena, (1991) 3 SCC 141, 149: AIR 1991 SC 1494; Rena Drego Vs. Lalchand Soni, (1998) 3 SCC 341; Chadra Bhusan Vs. Beni Prasad, (1999) 1 SCC 70; Khimiji Bidhu vs Premier High School, (1999) 9 SCC 264. A new plea, not raised in the Courts below cannot be raised and entertained under this Article for the first time. Pfizer Ltd. V. Mazdoor Congress, (1996) 5 SCC 609: AIR 1996 SC 2618.
(e) Article 227 does not invest the High Court with an unlimited prerogative to interfere in cases where wrong decisions have been arrived at by judicial or quasi- judicial tribunals on a question of fact or law. Shitab Singh vs. Suraj Bali, AIR 1952 All 750. In the words of the Supreme Court: Unless there was grave miscarriage of justice or flagrant violation of law calling for interference, it is not for the High Court under Articles 226 and 227 of the Constitution to interfere. D. N. Banerji Vs. P.R. Mukherjee, AIR 1953 SC 58,59: 1953 SCR 302; Laxmi Kant Rev. Chand Bhojwani vs. Pratapsing Mohansingh Pardeshi, (1995) 6 SCC 576. The power, therefore, is to be used sparingly and only in exceptional cases. Ram Roop Vs. Bishwa Nath, AIR 1958 All 456. The Supreme Court in Waryam Singh vs. Amar Nath- AIR 1954 SC 215: 1954 SCR 565; Nagendranath Bora vs. Commissioner, Hills divison, AIR 1958 SC 398; Jijabai Vithalrao Gajre vs. Pathan Khan, (1970) 2 SCC 717: AIR 1971 SC 315; B Mishra v. B. Dixit, (1973) 1 SCC 446, observed as follows:
This power of superintendence conferred by Article 227 is, as pointed out by Harris, C. J. in Dalmia Jain Airways V. Sukumar Mukherjee AIR 1951 Cal 193 to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors. Further, the High Court would be entitled to interfere with the conclusions of inferior Tribunals, if such Tribunals consider any inadmissible piece of evidence in arriving at its conclusion, or ignore material piece of evidence from the purview of consideration, or the conclusion itself is based upon an error of law, or the Tribunal itself has no jurisdiction at all, or the conclusion is based upon an error of law, or the Tribunal itself has no jurisdiction at all, or that the conclusion is based on no evidence. Raghunathe Jew vs. State of Orissa, (1999) 1 SCC 488: AIR 1999 SC 693. Earlier the Court had held that an error of law even if apparent on the face of the record, could not be corrected under this Article. Mohd. Yunus vs. Mohd. Mustaqum, (1983) 4 SCC 566: AIR 1984 SC 38.
(f) The law declared by the High Court is binding on its subordinate courts as well as on administrative tribunals in the State. East India Commercial Co. v. Collector, AIR 1962 SC 1893: (1963) 3 SCR 338.
123. The above discussion of the position in law was necessary here because clarity of law in this regard is required by this Tribunal from the superior Courts, both the Honble High Court, and the Honble Apex Court, in regard to the legal impact and import of Section 17 of the AT Act, 1985, read with the Contempt of Courts (CAT) Rules, 1992, because, while holding Section 28 of the AT Act, 1985, as unconstitutional through its judgment in L Chandra Kumars case (Supra), the Honble Apex Court had not touched upon and held anything, or in its wisdom propounded any adverse proposition of the law on Section 17 of the AT Act, 1985, in L. Chandra Kumars case (Supra), and had later even specifically upheld it in T. Sudhakar Prasads case (supra). Therefore, as long as Section 17 of the AT Act, 1985, has not been declared unconstitutional, prima facie it appears that an order in a contempt petition filed by a petitioner before this Tribunal would be subject only to an appeal before the Honble Apex Court, and may perhaps not be amenable to the jurisdiction of the Honble High Courts under Article 226 and 227 of the Constitution of India.
124. If the Tribunals order in the contempt petition case results in the prosecution of respondents/alleged contemners for any civil or criminal contempt, which impinges upon the fundamental rights of those respondents/contemners, they would then have the opportunity to approach the Honble Apex Court to seek redressal of their grievance, not because of the infringement of their fundamental rights due to orders of this Tribunal, but because an appeal under Sec.19 of the Contempt of Courts Act, 1971, then lies before the Honble Apex Court, as has happened in the case of the Criminal Appeal pending before the Honble Apex Court No.1332/2011 Nirmal Choudhary vs. CAT Patna Bench, Patna (supra). But, even in that case before the Honble Apex Court, the informant contempt petitioner before the CAT Patna Bench, the CAT Bar Association is not a party before the Honble Apex Court, as the role of the informant contempt petitioner is no longer there when once cognizance has been taken in a contempt case on a petition filed by him, and the case is then only between the Court/Tribunal and the alleged contemners.
125. But if, as in this case, the contempt petition case gets closed, and does not result in the prosecution of any respondents/alleged contemners for a civil or criminal contempt, and contempt petition of the informant contempt petitioner fails to convince this Tribunal to exercise its powers under Section 17 of the AT Act, 1985, read with Contempt of Court (CAT) Rules, 1991, and to punish the respondents/alleged contemners, and the CP case is dismissed, and the notices issued to the respondents/alleged contemners stand discharged, such a decision, not being a judgment or an order determining inter partes rights, does not give rise to a jurisdiction for the Honble High Court to interfere with that decision, even under the findings of the Honble Apex Court in L. Chandra Kumars case (supra), or T.Sudhakar Prasads case (supra), and specially under the law as laid down in Baradakanta Mishra (supra).
126. A power or a judicial function, which the Constitution allows to be conferred upon this Tribunal, through Article 323 A (2) (g), and which has then been so conferred upon this Tribunal by the Parliament while enacting Section 17 of the AT Act, 1985 (Act No. 13 of 1985), by way of a fragmentation of the Honble High Courts powers to take cognizance of all the cases of contempt concerning the other numerous Courts and Tribunals under its jurisdictional supervision, and control, under Article 227, cannot perhaps be interpreted in a manner which renders the Section 17 of the AT Act, 1985 (Act 13 of 1985) otiose, and/or superfluous or redundant.
127. As was noted in para 22 of the full Bench judgment of Andhra Pradesh High Court in the case Sakimala Harinath and others vs. State of Andhra Pradesh and Others: 1993 (6) SLR (A.P.) (F.B.) 1, by Justice M. N. Rao, which judgment was cited with approval by the Honble Apex Court in its judgment in L Chandra Kumar (supra), the great Philosopher Montesquieu believed that control of power depends upon its fragmentation, and that his theory of separation of powers (between the Legislature, the Executive, and the Judiciary) has been incorporated in our Constitution, though not in stricto sensu. Then, when the Constitution itself has provided for, and allows a fragmentation of the powers of the judiciary in respect of contempt of courts in between the High Courts, and the Central and State Administrative Tribunals, under Section 17 of the A.T. Act, 1985, read with Article, 323 A (2) (g), the intention of Parliament in enacting that Section 17 cannot be rendered otiose, and/or superfluous/redundant, unless it is expressly held to be un-constitutional and ultra vires, while the Honble Apex Court rather upheld it while deciding T. Sudhakar Prasad (supra).
128. Thus, this Tribunal, having its own original power to punish for its own contempt, and having used that power to convert itself into a criminal court, and having conducted that trial in a contempt case as a criminal trial court at its Ranchi Circuit Bench of Patna Bench under the Contempt of Courts Act, 1971, and having sentenced one of the charged contemners to a sentence of a simple imprisonment in that case, along with imposing fines on all the other eight contemners of that case, further goes to buttress the legal argument that this Tribunal has its powers under the Contempt of Courts Act, 1971, at par with the Honble High Courts in the country, by virtue of Section 17 of the Administrative Tribunals Act, 1985, which was not struck down or read down by the Honble Apex Court in its judgment in L. Chandra Kumar (supra), and which Section was specifically upheld in T. Sudhakar Prasad (supra).
129. Having carefully gone through the judgment of the Honble Apex Court in L. Chandra Kumars case (supra), portions of which as paraphrased in T.Sudhakar Prasad (supra) have been reproduced above, it is clear, as mentioned above, that in the cases of determination of the inter partes rights, through an order and judgment in an Original Application or a Miscellaneous Application, all the orders of 33 Division Benches of this Tribunal are subject to further judicial review by the Honble High Courts under Article 226 of the Constitution of India, by way of a Writ Petition moved before the concerned High Court, depending upon where the Bench of this Tribunal is located. But there is no mention in the Honble Apex Court judgment in L. Chandra Kumar (supra) that any Writ Petition by way of further judicial review will lie with the jurisdictional High Court concerned, and the High Court can then undertake a judicial review of the order passed by a Bench of this Tribunal in exercise of its own contempt jurisdiction, in all cases where, in an exercise of its own original powers under Contempt of Courts Act, 1971, read with Section 17 of the Administrative Tribunals Act, 1985, this Tribunal has decided the case in a Contempt Petition. The finding of the Honble Apex Court in T. Sudhakar Prasad (supra) was also to the same effect.
130. Therefore, it appears that in the instant case perhaps it was not pointed out before the Honble Delhi High Court to appreciate the fact that in both the cases of L. Chandra Kumar (supra) and T. Sudhakar Prasad (supra), the Honble Apex Court has not held that the orders of this Tribunal in contempt jurisdiction would be amenable to a further judicial review by the Honble High Court, unless a contemner has been punished by this Tribunal for a civil contempt, or a criminal contempt, and that punished contemner then approaches the Honble Apex Court in appeal. The only scope for such a person to approach the jurisdictional High Court under Article 226 of the Constitution of India would be there if any of his fundamental rights had been denied to him during the course of the hearing of the contempt case, or the trial in the contempt case conducted by the concerned Bench of this Tribunal, which would then be a separate cause, distinct from the requirement of his filing an appeal before the Honble Apex Court under Section 19 of the Contempt of Courts Act, 1971, against the conviction after such a trial.
131. As mentioned above also, in the case of J.S.Parihar vs.Ganpat Duggar, (1996) 6 SCC 291, the Honble Apex Court had an occasion to decide a case under Section 19 (1) of the Contempt of Courts Act, 1992, stating as follows:
"5. The question is : whether an appeal against the directions issued by the learned single Judge is maintainable under Section 19 of the Act ? Section 19 of the Act envisages that "An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt-
(a) where the order or decision is that of a single Judge, to a bench of not less than two Judges of the Court.
Therefore, an appeal would lie under Section 19 when an order in exercise of the jurisdiction of the High Court punishing the contemner has been passed. In this case, the finding was that the respondents had not wilfully disobeyed the order. So, there is no order punishing the respondent for violation of the orders of the High Court. Accordingly, an appeal under Section 19 would not lie.
132. It has been held by the Honble Apex Court that an appeal would lie under Section 19 when an order in exercise of the jurisdiction of the High Court punishing the contemner has been passed. The Honble Apex Court further noted that since in the case of before them the finding of the learned Single Judge was that the respondents had not willfully or deliberately disobeyed the order, so, there was no order punishing the respondent for violation of the orders of the High Court. Accordingly, an appeal under Section 19 would not lie. Here in the instant case before us also, it is respectfully submitted that as per the ratio laid down by the Apex Court in J.S.Parihar (supra), unless there is an order punishing the respondent/contemner for violation of the orders of this Tribunal, neither an appeal lies before the Honble Apex Court under Section 19 of the Contempt of Courts Act, 1971, nor a Writ Petition can lie before the Honble High Court, as the Honble Apex Court, in L.Chandra Kumar (supra) and T. Sudhakar Prasad (supra), did not provide for a judicial review of an order of this Tribunal in contempt jurisdiction, where the finding of the Tribunal was that the respondents had not willfully disobeyed the order of this Tribunal, and nobody had been punished.
133. A related legal issue at stake is as to against whom the writ lies, if at all. The Writ Petition (C) No.6530/2005 was filed against the L.Rs of late BK Pathak, through his wife Smt Rukmani Devi Pathak, and was entertained and even allowed by the Honble High Court of Delhi. But, it is respectfully submitted that while Article 226 of the Constitution does permit issue of directions, orders or writs to any person or authority, including in appropriate cases, any Government, and the scope and ambit of the expression any person has been subjected to an examination in quite detail through a lot of case law, and yet all the available case law still leaves one to wonder as to whether a writ can be issued against an individual person (or persons), who has (have) no public function or authority to perform. It is respectfully submitted that though the Article 226 of the Constitution provides that a writ lies to any person, it is a settled position of law that these words can only refer to a person who was bound to provide some relief to the writ petitioner, and thus to whom, according to the well established principles of law, a writ lay, as has been held in the case of Carlshad Mineral Water v. H.M. Jagtiani, AIR 1952 Cal 315: 87 CLJ 149; India Tobacco Corporation v. State of Madras, AIR 1954 Mad.549: (1954) 1 MLJ 429; Union Construction Co. v. Chief Engineer, AIR 1960 All 72 and N.S.C. Employees Union v. National Seeds Corporation, AIR 1972 Del 292.
134. In fact, going beyond this, it is a well established principle in this regard that a writ is issued against that person only, who has some public duty to perform, and has failed to perform that duty in the case of the writ petitioner, as per the law as has been laid down in the following cases:-
i) Sohan Lal v. Union of India, AIR 1957 SC 529: 1957 SCR 738: (1957) 2 MLJ 50 (SC):
ii) B.C. Das Gupta v. Bijoyranjan; AIR 1953 Cal 212: 56 CWN 861;
iii) A. Chettar v. Kaleshwar Mills Ltd., AIR 1957 Mad 309: 70 Mad LW 28: (1957) 1 MLJ 254 and;
iv) Jagdish Chandar v. Punjab University AIR 1952 Punj 395: (1953) Punj 56.
135. In the same above cited four cases, it has been further held by the Honble Apex Court and three Honble High Courts that no writ lies against a private person, except where he has violated the writ petitioners fundamental rights enshrined say in Articles 16, 23 and 24 of the Constitution of India. It has further been held that a writ may be issued against a private person only if it could be proved that he had acted in collusion with a public authority. In his book on Writ Jurisdiction, Justice B.L. Hansaria had noted as follows:-
Reference to the decision of a learned single Judge of the Andhra Pradesh High Court is called for, as it purports to be a bold step to widen the reach of the writ jurisdiction. As per the judgment, writ can be issued against any private person or a company incorporated under the Companies Act [T. Gattiah v. Commissioner of Labour, 1981 LIC 942]. Among other reasons given are: (1) definition of the word person in the General Clause Act: (2) confining it to a person exercising governmental authority will render the word person as a surplusage; (3) dicta of Atkin L.J being no longer representative of English law [R. v. Electricity Commissioner, (1924) 1 KB 171], and (4) views expressed in Ridge v. Baldwin [(1963) 2 All ER 66]. The above view has received some support from a Bench decision of that Court [Sarvaraya Sugars Ltd., v. A.P. Civil Supplies Corporation, AIR 1981 AP 402] . But a Full Bench of the Punjab and Haryana High Court has totally disagreed with it [Pritam Singh v. State of Punjab and Haryana, AIR 1982 P&H 228]. It is submitted that the attempt of learned single Judge of the Andhra Pradesh High Court cannot be accepted, as Article 226 was not meant to replace the entire judicial system which would be the effect if all the words of this article are to be given literal meaning. Then, the two words authority and person are conceptually different. The Constitution after all was not written on a clean slate. Though Ridge v. Baldwin has freed the writ of certiorari from the supposed trammels of R. v. Electricity Commissioner, it has no direct bearing on the subject under consideration. Decision of the Supreme Court in Rohtas Industries Ltd. v. Rohtas Industries Staff Union, AIR 1976 SC 425: 1976 (3) SCR 12: 1976 (2) SCC 82 to which reference was made has to be read in context of its facts. The observation that a writ lies even against a private person was made there as the case dealt with writ amenability of an arbitrator functioning under section 10 A of the Industrial Disputes Act.
Bhagwati J in the land mark judgment relating to rights of workers connected with Asian Games [Peoples Union for Democratic Rights v. Union of India (1982) 3 SCC 235: AIR 1982 SC 1473: (1982) 2 LLJ 454 held that certain fundamental rights are enforceable not only against State but also against private individuals. The ratio can be explained in the words of the said learned Judge.
Now many of the fundamental rights enacted in Part III operate as limitations on the power of the State and impose negative obligations on the State not to encroach on individual liberty and they are enforceable only against the State. But there are certain fundamental rights conferred by the Constitution which are enforceable against the whole world and they are to be found inter alia in Articles 17, 23 and 24. We have already discussed the true scope and ambit of Article 24 in an earlier portion of this judgment and hence we do not propose to say anything more about it. So also we need not expatiate on the proper meaning and effect of the fundamental right enshrined in Article 17 since we are not concerned with that Article in the present writ petition. It is Article 23 with which we are concerned and that Article is clearly designed to protect the individual not only against the State but also against other private citizens. Article 23 is not limited in its application against the State but it prohibits traffic in human being and begar and other similar forms of forced labour practiced by anyone else. The sweep of Article 23 is wide and unlimited and it strikes at traffic in human beings and beggar and other similar forms of forced labour practiced by anyone else. The sweep of Article 23 is wide and unlimited and it strikes at traffic in human beings and beggar and other similar forms of forced labour wherever they are found.
136. This principle of the legal admissibility of entertaining Writ Petition against private individuals was further advanced by Wadhwa J, who held that the Honble Apex Court should not put shackles on the Honble High Courts by an interpretative process, when the language of Article 226 is clear. To quote:
The Constitution is not a statute. It is a fountainhead of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person in wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals, whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this Court has laid down certain guidelines and self-imposed limitations have been put there subject to which the High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. [U.P. State Coop. Land Development Bank Ltd. V. Chandra Bhan Dubey, (1999) 1 SCC 741: AIR 1999 SC 753: 1999 SCC (L&S) 389: (1999) 1 LLN 1081].
137. However, in the type of cases as is before us, when the question of payment of back wages of a deceased employee was involved, the Articles 16, 23 & 24 cannot be brought into applicability, and it is further doubtful as to whether the observations of Justice Wadhwa in U.P. State Coop. Land Development Bank Ltd. (supra) can be directly made applicable. Therefore, in the instant case, it perhaps escaped notice of the Honble Delhi High Court that the Writ Petition before it, filed against the L.Rs of the deceased late Shri B.K. Pathak through his wife Smt. Rukmani Devi Pathak, perhaps did not lie at all !! Still, the Honble High Court allowed the writ, and has directed this Tribunal to decide this Contempt Petition afresh, and, has also ordered that while doing so, all the contentions urged by the Contempt petitioner before the Tribunal, as also the contentions urged in defence by the Writ Petitioners before the Honble High Court, who were respondents before the Tribunal, would be first noted, and then dealt with. It has been further directed by the Honble High Court that this Tribunal has just not highlighted the rival issues, and has yet disposed of the Contempt Petition, and that this Tribunal has not adjudicated upon the issues, which were to be decided by the Tribunal.
138. While so directing this Tribunal, the Honble Delhi High Court has treated the L.Rs. of the deceased late Shri B.K. Pathak through his wife Smt. Rukmani Devi Pathak, as opposite party respondents, even though in their capacity as informant contempt petitioners before this Tribunal, they could not have been counted as a proper party even before this Tribunal. Still, in recording their consent, the Honble High Court has somehow treated the informant contemnor petitioners as a party, as if it was the case of a lis, which was being decided by this Tribunal inter partes.
139. The Honble High Court is an omnipotent much powerful Constitutional Court, with vast powers to dispense justice in any manner, which it finds or deems fit, but the same is not true of this Tribunal, which is after all only a creature or a creation of an Act, passed under the enabling provisions of Article 323-A of the Constitution of India. The Honble High Court has in its vastly superior wisdom directed this Tribunal to frame issues while acting under the contempt jurisdiction. But we find that this Tribunal and this Bench are hemmed in, and controlled by, the limited powers available to it in contempt jurisdiction under Section-17 of the Act, in which it cannot decide any lis, or any portion of the inter partes rights, or travel any way beyond the orders of the same Bench, or a concurrent Bench, already passed earlier in an Original Application, or a Miscellaneous Application, or a Review Application. In such contempt proceedings, this Tribunal cannot frame any issues concerning a lis, and can only frame issues regarding the allegation of contempt, while acting under its very limited powers under Section-17 of the Act. This Tribunal, therefore, could not have framed any issues, which may lead to any ratio or findings, or the issuance of any directions beyond the findings, ratio, and directions already arrived at, and given in its judgment and order by a concurrent Bench, earlier, from which this Contempt Petition has arisen. Yet, Honble Member (J) has managed to cover all the issues as per the directions of the Honble High Court, with which conclusions, I am fully in agreement.
140. While in this Contempt Petition we could not have made a fresh discovery of facts, but we can certainly take note of the facts concerning the case of the applicant/petitioner, as elicited from the cases of his other compatriots already decided by this Tribunal on the original side. As mentioned by Honble Member (J) also in his order, after the disposal of OA No.1340/1998 in Nirmal Rai (supra) decided on 25.10.1991, and the connected OA No.819/1991 Prakash Chand & ors. (supra), apart from the deceased Late Shri B.K. Pathak, some others had also approached this Tribunal in different OAs, namely, OA No.1618/1988 Dr. J.P. Sharma, OA No. 2027/1992 Dr. M.M.S. Yadav, OA No.2350/1992 Dr. B.P. Gupta and Dr. Prem Prakash, and OA No.777/1993 Dr. B.L. Bhardwaj. When these four cases came before another Division Bench of the Tribunal, that Bench had expressed reservations about the judgments cited before it, and ordered for these matters to be referred to the Honble Chairman, CAT for being placed before a larger Bench, by stating as follows:-
8. We have gone through the judgments highlighted by the learned counsel for the applicant but we are in respectful disagreement with most of the observations made therein. While there are certain facts stated in the aforesaid order, there is also certain controversy on facts. The learned counsel for the applicant, further stressed that according to judicial discipline there should not be any discrimination as some of the employees have been given the benefit of the Redeployment of Surplus Staff under the Central Civil Services and Posts (Supplementary) Rules, 1989.
9. Since we are not in full agreement with the decision given by the Coordinate Principal bench in the OA No.1340/88 decided on 25.10.1991, we are of the opinion that the matter be placed before Honble Chairman to refer the matter, if deemed proper, to a larger Bench on the point of limitation which has been kept open.
141. Thereafter, those four OAs were listed before a Full Bench consisting of Honble Shri Justice S.C. Mathur, Chairman, Honble Shri J.P. Sharma, Member (J) and Honble Shri P.T. Thiruvengdam, Member (A), which heard the cases, and delivered its verdict, disagreeing in large substance from the judgment in Nirmal Rais case. That Full Bench judgment was delivered by Honble Shri Justice S.C. Mathur, the then Chairman of the Tribunal, speaking for the Full Bench on 03.07.1995, and arrived at the following findings, as have already been referred to by Honble Member (J) in his order also.
142. After describing the facts of the case in quite detail, the Full Bench had noted the reservations expressed by the concurrent Bench that the orders passed in OA No.1340/88 (supra), OA No.819/91 (supra), OA No.2462/89 (supra), OA No.2279/89 (supra), OA No.1207/90 (supra) filed by the deceased Shri B.K. Pathak, with whose case we are concerned here, and OA No.2224/90.
143. The Full Bench had in para 47 and 48 of its judgment considered the argument that Smt. Nirmal Rais case had attained finality when the Delhi Administrations Special Leave Petition (SLP) was dismissed by the Honble Apex Court on 21.07.1992, but noted that the SLPs were dismissed without a reasoned order, and went on to discuss that mere dismissal of an SLP by an unreasoned order does not amount to declaration of law under Article 141 of the Constitution of India, and the said order cannot be treated as an affirmance of the view expressed by the Court or the Tribunal against whose order or judgment or SLP was preferred.
144. The Full Bench, therefore, refused to accept the submission that the judgment in Smt. Nirmal Rais case had attained finality to the extent that the correctness of the judgment cannot be examined by Larger Bench. The Full Bench then went on to state that it had examined the correctness of the judgment and had given its reasons for disagreement with the judgment as it was not based on any proposition of law, and had been rendered without examining the law of take over of private institutions by the Government, and the second issue of effect of such take over of an institution on the status of the employees. To make the position clear, the Full Bench further clarified its order as follows:
To make the position clear we overrule the judgment in Smt. Nirmal Rai and Prakash Chand cases.
145. The Full Bench had then noted that in taking this view, it had the support of the decision of the Honble Apex Court in the cases of Hari Singh v. State of Haryana (JT 1993 (3) SC 73) and a Full Bench judgment of this Tribunal itself, in C.K. Naidu and others v. Union of India (OA No.817/1987 with connected other OAs decided on 18.09.1989 at Bangalore), which was printed in a relevant compilation of Full Bench judgments of the Tribunal. It also noted that it had also the support of the observations of the Honble Apex Court in Supreme Court Employees Welfare Association v. Union of India & others (supra) in arriving at this finding. The operative portion of the Full Bench judgment, therefore, stated as follows:
50. In view of our finding that the applicants did not become employees of the Delhi Administration their status remained that of employees of the Society even though the payment of salary to them was made out of the funds released by the Delhi Administration. In view of Section 14 of the Act, they are not entitled to bring their grievance before the Tribunal. The applications, therefore, suffer from the lack of jurisdiction also.
51. In view of the above, the applications are liable to dismissed on merits. It is, therefore, not necessary to go into the technical plea of limitation.
52. In view of the aforesaid discussion, the applications are dismissed but without any order as to costs.
146. We, in this Division Bench, did not have to therefore examine very much in detail the issues posed before us by the Honble High Court through its order dated 30.08.2010 (supra). As has been said earlier also, in the Contempt jurisdiction, we could not have arrived at any fresh findings on facts. Secondly, being a Division Bench, we are also bound by the findings of facts already arrived at by the Full Bench in its decision dated 03.07.1995, the conclusions of which have been reproduced above. Since we are bound by the Full Bench judgment also, as much as we are bound by the High Courts directions, we can take support from the conclusions on facts as arrived at by the Full Bench on 03.07.1995, to reply to the queries posed by the Honble High Court in its order dated 30.08.2010 (supra), which, in addition to what has been concluded by Honble Member (J) in his order, I would like to further paraphrase as follows:
i) The concerned college was never taken over by the Government till the date of 03.07.1995, the date of pronouncement of the Full Bench judgment.
ii) Neither Smt. Nirmal Rai nor Shri Prakash Chand, and nor late Shri B.K. Pathak in whose case the order in OA was passed depending upon the Nirmal Rais case, had ever been in the status of Government employees till the date of Full Bench judgment dated 03.07.1995.
iii) Since, as was held by the Full Bench in the ending portion of para-48 of its judgment dated 03.07.1995, as reproduced above, the judgment of Smt. Nirmal Rais case itself was overruled by the Full Bench, it is obvious that the present contempt petitioners, LRs of late Shri B.K. Pathak, cannot be allowed to derive any sustenance from the judgment which was passed on the basis of another judgment which has since been overruled by the Full Bench.
iv) Since it is clear that the employees of the closed Sanatam Dharam Ayurvedic College had not become Government employees at least till 03.07.1995, we have to accept the submission made during the arguments by the learned counsel for the respondents that the college was indeed taken over by the Delhi Administration only thereafter, as has been recorded by Honble Member (J) in para 12 of his order.
v) However, since, as even the Full Bench had noted, the services of some of the employees of the erstwhile privately administered college had been continued, and they were being paid their emoluments through the examining body, the rates of remuneration being same as what was being paid to them earlier by the privately administered college earlier, there is no question of late Shri B.K. Pathak, having become entitled to the Delhi Administration Pay scales at least up to 03.07.1995 the date of the Full Bench judgment, as has been noted by Honble Member (J) also in para 17 & 18 of his order.
vi) According to the Full Bench judgment, it is clear that late Shri B.K. Pathak whose LRs are before us in the present contempt petition, could have maintained an OA, and resultant Contempt Petition, only if they had acquired the status of Government servant, but since the Full Bench had clarified that they had not acquired the status of a Government servant, and the employees of the erstwhile Sanatan Dharam Ayurvedic College had not become Government employees, and thus eligible for Government pay scales w.e.f. April 1986 to February, 1989, neither the OA 1207/2001 filed by late Shri B.K. Pathak was maintainable, nor the Contempt Petition arising out of that OA is now maintainable, as has been rightfully pointed out by Honble M(J) in his order.
147. Somehow the Full Bench judgment applicable in this case had not been cited before the previous Benches, when three times earlier the Contempt Petitions of late petitioner Shri B.K. Pathak and his LRs were considered, and on this count the Contempt Petition No. 187/94, & Contempt Petition No.227/1995 were not maintainable, and even this Contempt Petition No.61/2004 is also not maintainable, in saying which I agree with the conclusion arrived at by Honble M(J).
148. Unfortunately, the Full Bench judgment of this Tribunal relevant for the facts of the present case, does not appear to have been pointed out before the Honble Delhi High Court by the writ petitioners themselves also, and certainly not by the present contempt petitioners before us, who were the respondents before the Honble High Court in that writ petition. It is obvious that if the full facts concerning the case involved in the writ petition had been presented properly before the Honble High Court, its orders and directions, under Articles 226 or 227, may, perhaps, have been different.
149. All the above discussion of the case law on the nature of the writ directions issued by the Honble High Court, and the nature of the orders issued by the Honble High Court apart, it is my respectful submission that in this case the Honble High Court has certainly furthered the ends of justice in holding (by implication) that a determination of a fact regarding the date of actual closure of the concerned College could not have been made/arrived at by a Bench of this Tribunal while acting and passing orders in its contempt jurisdiction. Further, one must most respectfully agree with the Honble High Court that such a positive direction (to direct the respondents in the OA to pay the salary and allowances to the applicants of the OA from April 1986 to February 1989), which was not a part of the original order passed by this Tribunal in the O.A., and nor was determined by the Honble Apex Court while deciding the Civil Appeals filed before it, could not have been, and ought not to have been passed by the concurrent Bench of this Tribunal, since such issues on facts cannot at all be determined, and then directions issued thereupon, while/when the Tribunal is acting in exercise of its contempt jurisdiction.
150. As has been mentioned earlier, Contempt is a different jurisdiction, and in contempt jurisdiction, no orders can be passed extending the contours of the orders passed in the Original Application determining inter partes rights. In fact, the Review Application No.203/2004 in CP-61/2004 in OA-1207/1990, in which the order came to be passed on 04.08.2004, also appear to have been passed beyond and without any jurisdiction available to this Tribunal to do so, since there is no legal provision whatsoever for a concept of a review by this Tribunal of a decision already arrived at (by the same or a concurrent Bench of the Tribunal) while acting in its contempt jurisdiction.
151. The Honble Apex Court has held that in order to maintain judicial discipline, one Bench of the Tribunal has to follow, and uphold the determination of the ratio arrived at by another concurrent Bench in an OA. However, the same cannot be said about the contempt jurisdiction. Firstly, while acting in contempt jurisdiction, the contours of the order already passed in OA cannot be extended, or clarified, in any manner whatsoever, and secondly, in contempt jurisdiction, the conclusion of the order is not binding upon another Bench, even if it was hearing the same or similar Contempt Petition. Therefore, while passing the present orders in this Contempt Petition case revived on the orders of the Honble High Court, this Bench is fully entitled to disagree with the orders passed by the concurrent Bench on 07.05.2004, which have as it is been set aside by the Honble High Court also, while allowing the Writ Petition on 30.08.2010.
152. Therefore, with these observations of mine, I agree with Honble Member (J) in ordering this Contempt Petition being dismissed, and the notices issued being discharged.
(Sudhir Kumar) Member (A) cc.