Madras High Court
Union Of India vs Shri A Ganesan on 18 March, 2008
Author: F.M.Ibrahim Kalifulla
Bench: F.M.Ibrahim Kalifulla
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.03.2008
CORAM
THE HONOURABLE MR.JUSTICE F. IBRAHIM KALIFULLA
AND
THE HONOURABLE MR.JUSTICE K. CHNDRU
Writ Petition No.23207 of 2003
1. Union of India,
rep. by Shri Subirdutta,
The Secretary to Government,
Min of Defence, New Delhi.1
2. The Chief Commanding Officer,
rep by Shri SK Rampuri
Garrison Engineer Office
Air Force Station, Pune
3. The Chief Works Engineer (P)
Rep by Sri. Sharma
A.F. Bellary Road,
JC Nagar (Post), Bangalore.6
4. The Garrison Engineer
Rep by Sri Vinay P. Singh
Air Force Station, Tambaram
Chennai-46. ... Petitioners
vs.
1. Shri A Ganesan,
S/o Late Arumugam
2. The Registrar,
Central Administrative Tribunal,
Madras Branch, Chennai. ... Respondents
For Petitioners :: Mr. K. Kumar
For Respondents :: Mr. S. Ramasamy
Writ petition filed under Section 226 of the Constitution of India for issuance of Writ of Certiorari.
O R D E R
(ORDER OF THE COURT WAS MADE BY F.M.IBRAHIM KALIFULLA.J) The petitioners are aggrieved against the order passed by the Central Administrative Tribunal dated 30.07.2003 in Contempt Application No.43 of 2003 in O.A.No.65 of 2002. The first respondent herein has approached the Tribunal by filing Original Application No.65 of 2002 seeking for the relief of direction to the petitioners to appoint him as Lower Division Clerk on compassionate ground. The first respondent's father had worked as F.G.M. (S.K.) in M.E.S. Tambaram and died in harness on 13.10.94. The first respondent is stated to be the only son. He also by that time passed H.Sc., apart from Typewriting Lower Grade (English). The said O.A. was resisted by the petitioners. However, the Tribunal ultimately disposed of the Original Application, on 11.6.2002 by passing the following Order:
"3. After hearing the counsel for the applicant, we do not their that we can give direction as prayed for especially when the respondents are not denying the eligibility of the applicant for getting appointment on compassionate grounds. At the same time, both the applicant as well as the respondents are not in a position to asset so as to accommodate the applicant. The law is well settled that unless there is vacancy, we cannot give direction in the nature of maximus. In the order dated 2.4.2001 the respondent has assured the applicant that he will be appointed on compassionate grounds when vacancy arises. According to us, that assurance in the letter satisfied the legal requirement. So long as the applicant is not in a position to say that the vacancy has arisen and he has been denied appointment the relief as sought for cannot be granted and we only direct the respondents to issue order appointments the applicant as and when vacancy arise. With the above direction the O.A. disposed of."
2. The said order was not complied with by the petitioners. The first respondent therefore filed Contempt Application No.43 of 2003 which came to be disposed of by the order impugned in this Writ Petition. The question now for consideration is whether this Court in existence of power under Article 226 of the Constitution of India can entertain this writ petition as against the said order of the Tribunal passed in a Contempt Application. In this context, it will be relevant to refer to Section 17 of Administrative Tribunals Act which reads as under:
17. Power to punish for contempt: A Tribunal shall, have and exercise, the same jurisdiction, powers and authority in respect of contempt of itself as a High court has and may exercise and, for this purpose, the provisions of the Contempt of Courts Act, 1971 (70 of 1971), shall have effect subject to the modification that:-
(a) The references therein to a High court shall be construed as including a reference to such Tribunal (b the references to the Advocate General in Section 15 of the said Act shall be construed:
i) in relation to the Central Administrative Tribunal, as a reference to the Attorney General or the Solicitor General or the Additional Solicitor-General ; and
(ii) in relation to an Administrative Tribunal for two or more states, as a reference to the Advocate General of the state or any of the states by which such Tribunal has been established."
3. As far as the provision for any appeal as against an order in a contempt proceedings under Section 19 of the Contempt of Courts Act 1971 is concerned, the same can be usefully referred to, which is to the following effect:
"19. Appeals:- (1) An appeal shall lie a 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 Judges, to a Bench of not less than two Judges of the Court
b) where the order or decision is that of a Bench, to the Supreme court.
provided that where the order or decision is that of the court of the Judicial commissioner in any Union territory, such appeal hall lie to the Supreme Court
2) Pending any appeal the appellate Court may order that, -
a) the execution of the punishment or order appealed against be suspended;
b) if the appellant is in confinement, he be released on bail; and
c) the appeal be heard notwithstanding that the appellant has not purged his contempt.
3) where any person aggrieved by any order against which an appeal may be filed satisfied the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by sub-section (2) "
4. On a careful reading of Section 17 of the Administrative tribunal Act along with Section 19 of the Contempt of Courts Act we discern that wherever reference is made to the High Court in Section 19 of the Contempt of Courts Act will have to be taken to mean the Tribunal, having regard to the fiction created under Section 17 of the Administrative Tribunals Act. If for the purpose of Section 19, the Tribunal is to be read into Section 19 by virtue of application of Section 17 of the Administrative Tribunals Act, as a corollary, as against any order of the Tribunal in a Contempt Application, the remedy available to an aggrieved party can only be to the Supreme Court. If that be the legal position and when there is a statutory remedy of appeal as provided under Section 19 of the contempt of Courts Act, there is no scope to examine the correctness of the order of the Tribunal in the Writ Petitioner filed under Article 226 of the Constitution.
5. In this context, it will be worthwhile to make a reference to the decision of the Honourable Supreme Court reported in (1997) 3 S.C.C. 261 [L. Chandrakumar vs. Union of India and others] Wherein a larger question as to the power of this Court to entertain a writ petition as against the order of the Tribunal in exercise of the jurisdiction under Article 226/227 of the Constitution came to be laid down. While dealing with said question the Honourable Supreme Court has laid down the law as under in paragraph 99:
"99. In view of the reasoning adopted by us, we hold that clause 2(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 Articles 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 arrears 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."
6. Even going by the dictum of the Honourable Supreme Court providing for the exercise of jurisdiction vested in this Court under Articles 226/227, wherein any challenge is made to the orders of the Tribunal passed in the applications preferred under Section 14, 15 r/w 28 of the Administrative Tribunals Act, having regard to the specific provision contained in 17 of the Administrative Tribunals Act, read along with Section 19 of the Contempt of Courts Act, whatever held in Chandrakumar's case cannot be extended beyond what has been provided. In other words, the extent of jurisdiction exercisable under Article 226/227 of the Constitution will have to be limited to the extent of examining the correctness of the decisions passed in the original proceedings and cannot be extended to proceedings and orders passed in exercise of the contempt jurisdiction vested with it, in respect of which separate avenue of Appeal has been provided under Section 17 of the Administrative Tribunals Act read along with section 19 of the Contempt of Courts Act.
8. In the light of Section 17 of the Administrative Tribunal Act r/w Section 19 of the Contempt of courts Act we hold that the remedy available to the petitioners as against the orders of second respondent passed in contempt application No.43 of 2003 in O.A.No.65 of 2002 will have to be worked out before the Honourable supreme court. The Writ Petition is therefore not maintainable. It is relevant to note that the petitioners have not chosen to challenge the order of the Tribunal passed in the main O.A.No.65 of 2002 dated 11.06.2002 and the said order has become final. This writ petition is dismissed. No cost.
(F.M.I.K.,J.) (K.C.,J.)
Index : Yes (18.03.2008)
Internet : Yes
ggs
To
The Registrar,
Central Administrative Tribunal,
Madras Branch, Chennai.
F.M.IBRAHIM KALIFULLA,J.
and
K. CHANDRU,J. ggs
W.P. No.23207 of 2003
18.03.2008