Karnataka High Court
Major (Retd) Siddalingayya Hiremath vs Shri.Anil Kumar T K on 8 January, 2020
Equivalent citations: AIRONLINE 2020 KAR 39, 2020 (2) AKR 703
Author: K.N. Phaneendra
Bench: K.N. Phaneendra
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 8 T H DAY OF JANUARY 2020
PRESENT
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
AND
THE HON'BLE MR.JUSTICE ASHOK S.KINAGI
WRIT PETITION NO.103232/2018 (S-CAT)
BETWEEN :
MAJOR (RETD) SID DALINGAYYA HIREMATH,
AGED ABOUT 41 YEARS,
S/O SHIVAYYA HIREMATH,
DEPUTY GENERA L MANAGER,
REHABILITATION AND RESETTLEMENT,
UPPER KRISHNA PROJECT , NAVANA GAR,
BAGALKOT- 587 103.
NOW WORKIN G AS
ADDITIONAL COMMISSIONER,
DEPARTMENT OF PUBLIC INSTRUCTI ONS,
BELAGAVI DIVISOI N, DHARWAD , DIS T: DHARWAD.
...PETITIONER
(BY SRI. GURUDEV GACHCHINAMATH, ADV .)
AND :
1. SHRI ANIL KUMAR T.K.,
THE PRINCIPA L S ECRETARY,
DEPARTMENT OF PERSONNEL & ADMI NISTRATION
REFORMS (D PAR), VIDHANA SOUDHA ,
BENGALURU- 560 001.
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2. DR.SUBHASH CHA NDRA KHUNTIA,
THE CHI EF S ECRETARY,
GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA , BENGALURU- 560 001.
3. SHRI. BHANU PRA TAP SHARMA ,
SECRETARY T O GOVERNMENT OF INDIA,
MINISTRY OF PERSONNEL, PUBLIC GRIEVANCE AND
PENSIONS , (DEPARTMENT OF PERSONN EL AND
TRAINING) NORTH BLOCK, NEW DELHI-110 001.
4. SHRI. T . JACOB,
SECRETARY, UNI ON PUBLIC SERVI CE COMMISSION ,
DHOLPUR HOUSE, SHAHJAHAN ROAD ,
NEW DELHI-110 069.
5. SHRI. AJAY MITTAL,
SECRETARY T O GOVERNMENT OF INDIA,
MINISTRY OF PERSONNEL,
PUBLIC GRIEVANCE AND PENSI ONS,
(DEPARTMENT OF PERSONN EL AND T RAINING),
NORTH BLOCK , NEW DELHI- 110 001.
...RESPONDENTS
(BY SRI.G.K .HIREGOUDAR, GOVT. A DV. F OR R1 & R2,
SRI .ARUN J OS HI, ADV . FOR R3 & R5,
SRI .MAHESH WODEYAR, ADV. F OR R4)
THIS PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CON STITUTION OF IN DIA PRAYING TO A)
QUASH THE IMPUGNED ORDER DATED 21.03.2018 MADE
IN CONTEMPT PETITION NO.170/00057/2017 IN
O.A .NO.170/00230/2016 PASSED BY THE CENTRAL
ADMINISTRATIVE TRIBUNAL, BEN GA LURU PRODUCED AS
ANNEXURE-A BY I SSUE OF WRIT OF CERTIORARI OR ANY
OTHER S UITABLE WRIT OR ORD ER OR DIRECTI ONS. B)
INITIATE CONTEMPT PROCEEDINGS AS PER SECTION 11
AND 12 OF THE CONTEMPT OF COURTS ACT , 1971
AGAINST THE ACCUSED AND PUNISH THEM SUITABLY
FOR THEIR WILLFUL DISOBEDIEN CE OF THE ORD ER
DATED 01.02.2017 MADE IN ORIGINAL APPLICATI ON
NO.170/ 00230/ 2016 PRODUCED AS ANNEXURE-E PASS ED
BY THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL,
BENGALURU BENCH.
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THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS D AY, K.N .PHANEEN DRA, J ., MADE T HE
FOLLOWING:
ORDER
The petitioner has approached this Court seeking quashing of the order dated 21.03.2018 passed in Contempt Petition No.170/00057/2017 passed by the Central Administrative Tribunal, Bengaluru (for short 'the CAT') as per Annexure-A and also seeking indulgence of this Court to initiate contempt proceedings as per Sections 11 and 12 of the Contempt of Courts Act, 1971.
2. We have heard the arguments of the learned counsel for the petitioner and the respondents. We have carefully perused the entire material on record. Some undisputed facts arising out of the records are that, the petitioner has approached the CAT by way of Original Application No.170/00230/2016 and vide orders dated 01.02.2017 after considering the merits of the :4: case and after hearing both the parties, the CAT has directed the respondents while allowing the said O.A. in the following manner.
"We hold that the applicant is entitled to the benefit offered by the fourth Proviso to Regulation 5(2). T he respondents are directed to consider the applicant's representations and decide any pend ing issues inclu ding the question of the applicant's position in the seniority list of KA S officers and his claim to be considered for appointment to the IAS within three months of receiving a copy of our order. We make it clear that these issues will be decided in accordance with the IAS (Appointment by Promotion) Regulations, 1955, and other r elevant rules, and based on the merits of the c ase."
(emphasis supplied)
3. Being aggrieved by the said directions of the CAT, the respondents Union of India approached this Court by way of writ petition in W.P.No.11337/2017 (S-CAT) and vide order dated 23.03.2017 this Court almost reiterating the directions issued by the CAT find no reasons to interfere. Hence, the writ petition was dismissed. Therefore, in the letter and spirit the respondents :5: are directed to implement the order of the CAT as contained at paragraph 15.
4. As the respondents have not implemented the said order, the petitioner has approached the CAT by way of contempt proceedings in No.170/00057/2017. Vide orders dated 21.03.2018, the CAT has closed the contempt proceedings on the ground that the order of the CAT dated 01.02.2017 in O.A.No.170/00230/2016 has been complied with. However, at paragraph 9, the CAT has also made an observation that the contempt petitioner if is not satisfied with the consideration order, he can approach the competent authority for agitating the same.
5. The learned counsel for the petitioner strenuously argued before the Court that the contempt Court has not specifically looked into the documents produced before the Court by the :6: respondents showing compliance of the order of the CAT. It is contended that the respondents have not considered the pending issues with reference to the applicant's position in the seniority list of KAS officers and his claim to be considered for appointment to the IAS by properly considering the applicant's representation and passing an appropriate order. To that extent, the respondents have not produced any order passed by the respondents considering the seniority of the applicant in accordance with 4th proviso to Regulation 5(2) of the IAS (Appointment by Promotion) Regulations, 1955. Therefore, he contend before the Court that the contempt proceedings should not have been dropped as the respondents have not produced materials to show that in what manner the issue with reference to the seniority and applicant's position has been considered by the respondents.
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6. Per contra, the learned counsel for the respondents strenuously submitted that, respondent No.2 has filed objections to the contempt proceedings by way of compliance report. In the said compliance report at paragraph 4, it is categorically stated that the name of the applicant was included in the zone of consideration in terms of 4 t h proviso to Regulation 5(2) of the IAS (Appointment by Promotion) Regulations, 1955 and in the proposal dated 12.09.2017 also, the name of the applicant was included in the zone of consideration in terms of 4 t h proviso to Regulation 5(2) of the IAS (Appointment by Promotion) Regulations, 1955. The correspondences of the compliance were also produced. Therefore, the respondents submitted that above said documents are nothing but compliance of the order passed by the CAT. The UPSC represented by its counsel has submitted before the Court that whatever the :8: State Government makes recommendation, the Central Government will only consider the same and pass appropriate orders. But in the particular case what exactly the order with reference to the consideration of the seniority either by respondent No.1 or by respondent No.2 is not placed before the Court. Therefore, this Court vide its order dated 03.12.2019 directed the learned Government Advocate to produce a copy of the order by which the seniority of the petitioner was re-fixed on the post of Deputy Collector. The said document has not even produced before this Court nor same has been produced before the CAT for consideration. Therefore, in the light of the aforesaid facts and circumstances, in the contempt proceedings it should have been considered whether the order of compliance is in consonance with the direction issued by the CAT at paragraph 15.
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7. Revisiting paragraph 15, it clearly discloses that the issue with reference to the applicant's position in the seniority list of KAS Officer and his claim to be considered for appointment to the IAS is the direction strictly ought to have been complied by the respondents. It appears that, the same has not been done in the particular case. Therefore, this Court has directed them to produce the consideration of the petitioner's name for the said post considering the pending issue of the applicant including the question of applicant's seniority and thereafter appropriate order ought to have been passed. Whether consideration of the seniority has been done by the respondents, if so, how is the moot question that ought to have been taken into consideration by the CAT while dealing with the contempt proceedings.
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7a. It is not that compliance of the directions issued by the Courts are mechanically done like a post office without really understanding what exactly the direction to issue and what is the responsibility of the respondents by virtue of the directions issued. According to the direction, they have to give reasons and findings as to the decision taken by the respondents as the seniority of the petitioner was called in question and such directions have been issued. The act of the respondents should flow from legal understanding of the orders and logical conclusion with specific findings. The same is conspicuously absent in this case. Of course that can also be shown by producing the surrounding circumstances and documents which is also not been done for the present.
8. Now we come back to the orders passed which is impugned in the contempt proceedings. : 11 : The contempt Court has reiterated at para 8 what are the directions issued and also the document produced by the respondents. At paragraph 9, it has simply stated that there has been no case of any willful violation of the order passed by the Tribunal. Whether there was any willful violation or not is the second question that ought to have been considered by the CAT. First it has to consider whether there was strict compliance of the order passed by the CAT in the letter and spirit of the directions issued. In our opinion, without production of the document as sought for by this Court either before this Court or before the CAT, the contempt Court could not have been concluded that there was a strict compliance of the directions issued by the CAT. Therefore, under the aforesaid facts and circumstances, we are of the opinion that dropping of the contempt proceedings without : 12 : considering whether there was strict compliance of the directions issued by the CAT is erroneous.
9. There was an objection raised by the respondents with regard to the maintainability of the petition on the ground that, consideration order passed by the respondents even if it is erroneous ought to have been challenged before the CAT in an independent proceedings not by continuing the contempt proceedings. Secondly, the learned counsel appearing for the UPSC also submitted that the appeal is maintainable against the orders in the contempt proceedings passed by the CAT. These two objections raised, in our opinion, are superfluous. When this Court is of the opinion that dropping of the contempt proceedings itself is erroneous because the CAT has not properly considered whether respondents have strictly complied with the directions or not. In such an eventuality, filing of separate proceedings : 13 : challenging the alleged compliance order does not arise. When the compliance order itself is not in strict compliance of the directions as challenged by the petitioner herein. So far as other contention is concerned, in the contempt proceedings if a conviction order is passed then only the appeal provision can be invoked under the Contempt of Courts Act. But when the proceedings are dropped, in such an eventuality, the appeal provision cannot be invoked. Therefore, on both the counts the writ petition is maintainable before the Court. Accordingly, we hold that the writ petition is maintainable.
10. In view of the aforesaid observations, we are of the opinion that, contempt proceedings have to be restored to the file of the CAT and the CAT has to examine the order passed by the respondents as to whether it is in strict compliance of its order after providing an opportunity to both : 14 : the parties to produce any further documents in respect of the above said matter and pass appropriate orders in accordance with law. Accordingly, the order passed by the CAT in contempt proceedings No.170/00057/2017 dated 21.03.2018 is hereby set aside.
11. While disposing of the contempt proceedings on merits, the CAT has to strictly adhere to the material on record and it should not persuade itself by any observations made by this Court in this order.
With the aforesaid observations, this petition stands disposed off.
Sd/-
JUDGE Sd/-
JUDGE MBS/-