Central Administrative Tribunal - Allahabad
Shri B K Gupta,Gm,Bsnl,Jhansi vs Smt Radha Devi on 20 April, 2023
(Reserved)
Central Administrative Tribunal, Allahabad
Bench Allahabad
****
Misc. Application Nos. 1740/2022 and 2141/2022
In
Civil Misc. Contempt Application No. 65/2019
(Arising out of Original Application No.625/2011 )
This the 20th Day of April, 2023.
Hon'ble Mr. Justice B.K. Shrivastava, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Smt. Radha Devi w/o Sri Bhawan Das, R/o Behind Tashil Antiya Tall, Post
Jhansi, District Jhansi.
........... Applicant
By Advocate: Shri O.P. Gupta
Versus
1. Sri J.L. Gautam, Genral Manager, B.S.N.L., Jhansi and Ors.
........ Respondents
By Advocate: Shri Anupam Verma
ORDER
Delivered by Hon'ble Mr. Justice B.K. Shrivastava, Member (J) This order shall govern the disposal of :- (i) M.A. No.1740/2022 filed by respondents in contempt petition No. 65/2019 for recalling the order dated 17.05.2022.
(ii) MA No.2141/2022 filed by respondents for recalling the order dated 26.05.2022.
Page No.1
2. It appears from the record that the Contempt Petition No. 65/2019 was filed on 11.04.2019 for the non-compliance of the order dated 10.07.2015 passed by Member (Judicial) of CAT Allahabad Bench in OA No.625/2011. The respondents are seeking the recall of the order dated 17.05.2022 which was as under:-
"We have joined the Division Bench online through video conferring.
Shri O.P Gupta, learned counsel for the petitioner and Shri D.S. Shukla along with Shri Anupam Verma, learned counsel for the respondents are present.
Despite sufficient indulgence shown to the respondents as clearly brought out in the orders dated 26.4.2022 and 14.2.2022, there is neither an affidavit of compliance nor a categorical statement that the directions of the Tribunal to regularize the applicant in OA No. 625 of 2011, have been complied with.
Shri Anupam Verma, learned counsel for the respondents submits that the respondents have taken a large number of steps for compliance of the directions, however, the applicant has not submitted the requisite documents to enable the respondents to take further action with respect to her regularization in service. This is the first time that the issue of necessary documents has come up. On the last two dates of effective hearing, a categorical assurance was given by the General Manager that he shall take all necessary steps and ensure compliance of the order of this Tribunal in letter and spirit.
Shri Anupam Verma, learned counsel for the respondents submits that an affidavit detaling the steps of the respondents has been submitted by him. While we appreciate that the respondents have taken certain steps but the fact remains that the order passed in the OA in the year 2015 is yet to be complied with even after a lapse of 7 years and all we are hearing is one excuse after another.
Since we have shown enough indulgance in the matter, we are not inclined to grant any further liberty to the respondents.Page No.2
Let the General Manager, B.S.N.L Jhansi appear in the court on 26.05.2022 for framing of charges under the Contempt of Courts Act.
List on 26.05.2022. "
3. It appears from the application that the respondents place reliance upon Om Prakash Jaiswal vs. V.K. Mittal, Civil Appeal No.1632/1990 decided by Hon'ble Supreme Court on 22.02.2000.
4. The main contention of the respondents, upon the basis of the aforesaid ruling, is that the contempt petition was time-barred. In the case of contempt, the court should see the date on which the contempt is alleged to have been committed and the date of initiation of proceedings. As per the applicant, no cognizance was taken after the one year of the contempt proceedings. As per the respondents, the court took cognizance on 17.05.2022 while the order was passed on 11.04.2019, therefore contempt is time-barred and the aforesaid order is liable to be recalled.
5. The counsel for the applicant opposed the aforesaid contention. It is submitted that the contempt is not time-barred. In this case, the writ was also filed by the respondents. When the writ was dismissed, thereafter during the prescribed period the contempt petition has been filed. Therefore, the order is not liable to be recalled.
Page No.3
6. It appears from the record that the order was passed on 10.07.2015 in OA No.625/2011. It is also appears from the record that a Writ No.64517/2015 was filed by the respondents before the High Court. A copy of the judgment dated 29.05.2018 is also available on the record which shows that the aforesaid writ, filed by the respondents, was dismissed by the Hon'ble High Court Allahabad on 29.05.2018. It is also appear from the record that the review was also filed on 11.11.2019 by the respondents. When the writ was dismissed thereafter, this contempt petition was filed on 11.04.2019. Therefore, prima facie it cannot be said that the contempt was time-barred. The applicant was seeking the compliance of the aforesaid order passed in OA No.625/2011 but the respondents challenge the aforesaid order before Hon'ble High Court by filing the writ petition. Therefore, compliance was required after the dismissal of the writ petition. When the writ was dismissed on 29.05.2018, thereafter within one year which is the prescribed period, the contempt petition was filed on 11.04.2019. Hence, prima facie, the arguments of the respondents' counsel are not acceptable.
7. It is also appear from the record that the aforesaid type of objection was not raised at any time before 17.05.2022, while the detailed orders were passed on several dates i.e. on 13.01.2022, 14.02.2022, 26.04.2022 and 26.05.2022. The first time, the aforesaid ground of limitation has been taken by way of recall Page No.4 application which is not acceptable. Therefore, review application MA No.1740/2022 is dismissed.
8. MA No. 2141/2022 has been filed by the respondents' counsel for recalling the order dated 26.05.2022. It is submitted that the order dated 26.05.2022 is liable to be recalled partially to the extent of the statements recorded in the said order. It is submitted by the respondents' counsel that during the course of the argument on 26.05.2022 due to bad weather, there were certain glitches in the network on the respondents' side. The statement/pleading could not be transpired properly/exactly. The respondent and his counsel never made any statement contrary to the law laid down. There are certain statements that are against the law laid down in the matter. The respondents also mentioned in the application some portion of the aforesaid order and the actual position of the departmental rules/law in a table. Therefore, upon the aforesaid ground, the counsel requested to recall the order to the extent of statements recorded in the order dated 26.05.2022 which has been tabulated in the present application in the interest of justice.
9. The counsel for the applicant opposed the aforesaid application and submitted that the statement was clearly made by the counsel for the respondents and the concerned was also Page No.5 present at the time of the aforesaid statement therefore, the application is liable to be dismissed.
10. It will be useful to refer to the order dated 26.05.2022 which has been passed as under:-
"We have joined this Division Bench online through video conferencing.
Shri O P Gupta, learned counsel for the petitioner and Shri Anupam Verma, learned counsel for the respondents are present.
Shri J L Gautam, GM BSNL, Jhansi who is present in court today on account of the order issued on the last date of hearing when he was directed to appear in the court for framing of charges against him under the Contempt of Court Act. He submits that although he has taken several steps to comply with the orders of this Tribunal he is awaiting formal approval from the competent authority. He is assisted by learned counsel Shri Anupam Verma who submits that since the post of 'sweeper' does not exist in BSNL they cannot give regular appointment to the applicant till the post is formally created and they have taken the necessary steps for its creation.
Learned counsel for the respondents also submits that the notice for framing of charges is contrary to the laws laid down by the Apex Court and seeks a recall of this notice for which he submits that he has moved an appropriate application. However, learned counsel Shri Anupam Verma and Shri J LGautam, GM BSNL submit that the post of 'majdoor' is available in the department and if a direction is issued to them or the applicant makes a request, they could comply with the aforesaid order by way of regularizing her against the post of 'majdoor'.
In our view, it is a hypertechnical defense which the respondents are taken. However, in view of the categorical statement made by both the learned counsel for the respondents and Shri J L Gautam, GM BSNL, we allow them a period of one week, no more to issue orders on offering regular appointment to the applicant to the post of 'majdoor' which according to their own statement Page No.6 is available in the department.
List the matter on 02.06.2022. On this date the GM, BSNL shall be present in court and furnish a fresh affidavit of compliance demonstrating that in accordance with his own statement he has offered the appointment to the applicant to the post of 'majdoor'.
The recall application moved by the learned counsel for the respondents is also placed for consideration on the next date of hearing."
11. The aforesaid order has been passed by the Division Bench. It is not transpired from the aforesaid order that there was any difficulty in the voice or the connectivity. The hearing was done through video conferencing but the clear statement has been recorded in the order sheet. Any difficulty has not been mentioned in the aforesaid order during the video conferencing. Therefore, prima facie, the contention of the learned counsel for the respondents is not appeared to be bona fide. Upon his statement, the court mentioned the fact in the aforesaid order. If we see the previous history of this case, then it appears from the record that details facts were mentioned in the order dated 13.01.2022, 14.02.2022, 26.04.2022, and 26.05.2022. Several opportunities were granted to comply with the order. On 13.01.2022, four weeks time by way of last chance was granted to the respondents to comply with the aforesaid order and it is also mentioned that no more time will be granted and in case of failure, the concerned authority shall remain present in the court. Thereafter, the matter was taken Page No.7 on 14.02.2022, the court again mentioned the previous conduct of the respondents and said that as a matter of final indulgence, the period of 08 weeks and no more is granted to comply with the aforesaid order. It is also mentioned that the respondents either comply with the order or keep present the person Shri J.L. Gautam, GM BSNL, Jhansi. Thereafter, on 26.04.2022, the court again found that the order was not complied with. The court also gives the time for compliance and it is also mentioned that the order should be complied with within two weeks otherwise, on the next date the court will proceed for framing the charges against the concerned officer. Thereafter on 17.05.2022, the court passed the order for the personal appearance of the General Manager, BSNL, Jhansi on 26.05.2022 for framing the charge under the contempt of Court Act. When the aforesaid order was passed, then on 26.05.2022, Shri J.L. Gautam, G.M. BSNL, Jhansi, was present in the court. At that time, the respondents make the submission before the court for an alternative post of Mazdoor. The clearly mentioned all facts in the order and passed the order but not framing the charge. Therefore, it appears that the application is baseless having no any force, the order is not liable to be recalled, hence, the recall application no. 2140/2022 is dismissed.
(Mohan Pyare) (Justice B.K. Shrivastava)
Member (A) Member (J)
Sushil
Page No.8