Union Of India And Others vs Pankaj Dhar Dubey And Another on 17 August, 2017

[Cites 10, Cited by 1]

Allahabad High Court

Union Of India And Others vs Pankaj Dhar Dubey And Another on 17 August, 2017

(Delivered by Hon'ble A. P. Sahi, J.) (1) The Union of India through its officials of the North-Eastern Railway, Gorakhpur and the Principal of the North-Eastern Railways Boys Inter College, Gorakhpur have filed this petition challenging the order dated 9th November, 2010 passed by the Central Administrative Tribunal, Allahabad in Contempt Petition No. 70 of 2010 whereby the Tribunal has summoned the then General Manager, North-Eastern Railway, Gorakhpur, Chief Personnel Officer, North-Eastern Railway, Gorakhpur and the Principal of the Boys Inter College, North-Eastern Railway, Gorakhpur for the disobedience of the orders dated 6th December, 2006 and 18th November, 1990 passed by the Tribunal in Original Application No. 509 of 2004.

(2) The respondent no. 1-Pankaj Dhar Dubey sought promotion as a Lab Assistant in Boys Inter College, North-Eastern Railway, Gorakhpur. This claim of the respondent no. 1 was rejected by the order dated 22nd December, 2003. The same was challenged by him in Original Application No. 509 of 2004. The said application was allowed on 6th December, 2006. One of the major contentions between the parties was in relation to the availability of the post of Lab Assistant for satisfying the claim of such promotion. The order of the Tribunal dated 6th December, 2006 decided the said contention by recording as follows :-

" We have considered the respective arguments in the context of the applicant's claim for promotion to the post of Lab Assistant. He appears to be correct on the point that the posts of Lab Assistants were created vide letter dated 6.9.1984 (Annexure-9) of General Manager (P) for Boys High School, Gorakhpur, run by N.E.R. There is no clear cut denial from the side of the respondents of the factum of creation of post of Lab Assistant. The reply does not say that the said posts were subsequently abolished or surrendered or kept in abeyance. Though there is such plea in respect of the post of Science Bearer, which the applicant was holding before 20.1.2003. So to the extent the order dated 22.12.2003 (Annexure-1) says that there are no posts of Lab Assistant in the School, run by N.E.R., does not appear to be correct."

(3) The operative part of the aforesaid order is as follows :-

" In the result, the O.A. is finally disposed of with a direction to the respondents to consider the case of the applicant for promotion to the post of Lab Assistant in the School run by the N.E.R., if there is vacancy and if the applicant is otherwise found suitable under the relevant Rules within a period of six months from the date a certified copy of this order is produced before them. The order dated 22.12.2003 (Annexure-1) is rendered ineffective and will not come in the way of such consideration for promotion. No order as to costs."

(4) The petitioners herein challenged the said order in Writ Petition No. 16050 of 2008 that was dismissed on 27th March, 2008 by the following judgment :-

"1. Contesting respondent, Pankaj Dhar Dubey, was appointed on casual basis by the petitioners. He filed an Original Application No. 1136 of 2003 before the Central Administrative Tribunal, Allahabad Bench, Allahabad for his regularization. This was disposed of on 23rd day of September, 2003 directing the petitioners to decide the case of contesting respondent. Petitioners rejected the case of contesting respondent for regulation by the order dated 22nd December, 2003. Contesting respondent filed another Original Application No. 509 of 2004 challenging the order dated 22nd December, 2003, wherein he prayed that he should be regularized as well as promoted to the post of Lab Assistant. During the pendency of the said application, contesting respondent was regularized on Group D post. The Central Administrative Tribunal by its order dated 6th day of December, 2006 has directed the petitioners to reconsider the promotion of contesting respondent. Hence this writ petition.

2. We have hear learned counsel for the petitioners and Sri Bashist Tiwari, learned counsel for the contesting respondent.

3. Learned Central Administrative Tribunal under the impugned judgment has sent back the matter to the petitioners for reconsider of the case of the contesting respondent for promotion. Needless to add, this consideration has to be done in accordance with law.

4. In view of the aforesaid, we see no justification to interfere in the matter.

5. This writ petition is dismissed with the aforesaid observations."

(5) A review application had been filed by the petitioners before the Tribunal that was also dismissed as being time barred on 10th December, 2007. The respondent no. 1 had filed a Contempt Application for compliance of the judgment of the Tribunal whereupon the Tribunal in exercise of its powers proceeded to dispose of the Contempt Application on 22nd January, 2008 by the following order :-

"1. Sri A.V. Srivastava, learned counsel for the respondents has stated at the outset that he has filed Review Application prior to filing of Review Application against the order passed in Original Application. Sri B. Tiwari, learned counsel for the applicant states that the said Review Application has been dismissed on the ground of limitation and as such the order of this Tribunal ought to have been complied by the respondents in true spirit.

2. Having heard the counsel for the parties, we are satisfied that ends of justice would be met if the respondents are directed to ensure the compliance of the order of this Tribunal passed in the O.A. within a period of three months from the date of receipt of a certified copy of this order. In case the compliance is not done within three months, it would be open to the applicant to file fresh contempt petition.

3. In view of the above, the CCP is dismissed. Notices are discharged."

(6) The respondent no. 1 in terms of Section 27 of the Administrative Tribunals Act, 1985 applied for the execution of the judgment dated 6th December, 2006. The said execution application was allowed by the order dated 18th November, 2009. The order passed by the Tribunal is extracted hereinunder :-

"1. MA (Execution) No. 12 of 2008 : Heard learned counsel for the parties.

2. Applicant filed OA No. 509 of 2004 praying for direction to set aside order dated 22.12.2003 passed by C.P. Office, N.E. Railway, Gorakhpur, to issue an order/direction commanding the respondents to give promotion to the applicant as Lab. Assistant in the scale of Rs. 530-610/- in pursuance to Railway Board's letter dated 21.1.1984 after regularizing the applicant in scale of Rs. 2550-3200/- in Boys Inter College, N.E. Railway, Gorakhpur and for direction commanding the respondents to give seniority, arrears of salary for difference of pay for the post of 'Science Bearer' and Lab Assistant etc. Tribunal vide order dated 06.12.2006, decided OA No. 509 of 2004. Para 5 and 7 of the Tribunal order dated 6.12.2006 is reproduced below :-

"5. We have considered the respective arguments in the context of the applicant's claim for promotion to the post of Lab Assistant. He appears to be correct on the point that the posts of Lab Assistant were created vide letter dated 6.9.1984 (Annexure-9) of General Manager (P) for Boys High School, Gorakhpur, run by N.E.R. There is no clear cut denial from the side of the respondents of the factum of creation of posts of Lab Assistant. The reply does not say that the said posts were subsequently abolished or surrendered or kept in abeyance. Though there is such plea in respect of the post of Science Bearer, which the applicant was holding before 20.1.2003. So to the extent the order dated 22.12.2003 (Annexure-1) says that there are no posts of Lab Assistant in the School run by N.E.R. does not appear to be correct.

7.Sri Srivastava may be correct in saying that the casual worker or worker with temporary status before regularization may not be eligible for promotion to the post of Lab Assistant. As on today, the applicant stands regularized in Group 'D' as Chowkidar, but in a different unit named Signal Communication Microwave. The question is as to whether a Group 'D' employees of this unit will be eligible for promotion to the post of Lab Assistant in the school, run by the N.E.R. The letter dated 21.1.1984 alone does not appear to be sufficient to decide the question as it can be construed both ways. No doubt, para 2 of the letter dated 21.1.1984 does not say that such Group 'D' employees should be of Laboratory or of the School run by the N.E.R. Or of a particular unit. But then the Railways is a big organization divided into different division/units so without knowing the detailed scheme for filling up the post of Lab Assistant in the school of N.E.R., it is difficult to pronounce whether regular Group 'D' employee of a unit, different to the unit where such vacancies may exist, will or will not be eligible for such promotion. We leave it to the authorities concerned to decide the same in the light of the relevant Rules on the subject."

3. A statement is made at the bar that the respondents challenged said order by filing Writ Petition in Allahabad High Court which was dismissed; Contempt Petition against respondent has also been dismissed.

4. Present Execution Application has been filed seeking Execution of the order of Tribunal dated 6.12.2006 (referred to above). The applicant has himself filed copy of order dated 25.4.2008 titled 'Speaking Order', communicated through department letter dated 25.04.2008 (Annexure-5 to the Execution Application). The relevant extract of the said order reads :-

"...............I find that at present the applicant belongs to Signal and Telecom department whereas the post of Lab Asst. which was earlier belonging to Railway School is not existing at present as such his claim is not considerable."

5. Perusal of the said order shows that observations made in para no. 7 of the Tribunal order (quoted above) have not been taken into account.

6. In view of the above said speaking order dated 25.04.2008 is set aside with direction to the concerned respondent authority to pass fresh orders (within three months of receipt of certified copy of this order) and comply with order of Tribunal dated 21.12.2003 in O.A. No. 509 of 2004.

7. Execution Application No. 12 of 2008 is disposed of subject to above observations."

(7) It may be noted that the said order of the Tribunal sets aside the order dated 25th April, 2008 passed by the Authority wherein the respondent no. 1 had been informed that no post of Lab Assistant was existing at present and therefore, his claim for promotion could not be considered. In spite of the said order having been set aside and a direction issued for compliance in the execution application, the General Manager-petitioner no. 1 again passed an order rejecting the claim of the respondent no. 1 on 24th February, 2010. Aggrieved, the respondent no. 1 filed a fresh contempt application being Contempt Application No. 70 of 2010 wherein the petitioners took an objection to the maintainability of the contempt application on the merits of the claim which was rejected by the impugned order dated 9th November, 2010.

(8) The Tribunal after taking note of the aforesaid entire facts came to the conclusion in the following terms :-

"It has also been alleged on behalf of the applicant that the order of the Tribunal was challenged before the Hon'ble High Court and Hon'ble High Court rejected the writ petition filed by the respondents. Although, the judgment of the Hon'ble High Curt passed in Writ petition is not before us and moreover, the file of the Review is not before us. But it is a fact that the order passed by this Tribunal has not set aside either by Hon'ble High Court or in Review by this Tribunal. It is a definite case of the applicant that the order was not challenge before the Hon'ble Apex Court in these circumstances there is no reason to presume that the order has been set aside. Under these circumstances, there is no option for the Respondents excepts to comply with the order of the Tribunal. Hence, it can very safely be said that the Respondents disobeyed the order of the Tribunal and they deserves to be punished.

The objection of the respondents regarding maintainability of this Contempt Petition is rejected. Respondents shall appear in person on dated 13th January, 2011 and charge shall be framed under Section 12 of the Contempt of Court Act. In case order is complied with by the respondents they need not appear in person and only compliance report will be suffice for this purpose."

(9) Aggrieved, the petitioners are before this Court contending that the order of the Tribunal was incapable of being complied with and that the respondent no. 1 could not have been promoted. There is also a dispute raised with regard to the stream in which the respondent no. 1 was employed.

(10) The petitioners also took a plea that the final rejection order dated 24th February, 2010 having not been challenged, respondent no. 1 cannot compel the petitioners for any such compliance of the previous judgments of the Tribunal that had only issued directions for consideration in the event any vacancy of Lab Assistant existed.

(11) A Division Bench of this Court while entertaining this writ petition passed the following interim order on 16th December, 2010 :-

"Shri Bashisth Tiwari has accepted notice on behalf of Shri Pankaj Dhar Dubey-respondent no.1. He is allowed four weeks' time to file counter affidavit. The petitioner will have one week thereafter to file rejoinder affidavit.

List on 22.2.2011.

A preliminary objection has been raised by Shri Bashisth Tiwari, that the Union of India cannot file a writ petition against the order summoning the officers of the Railways in contempt; and that unless a reply is filed in the contempt proceedings, the Court should not hear the petitioners in defence to the notice of summoning the opposite parties in the contempt application for framing of charges.

Shri Amit Sthalekar, learned counsel for petitioner submits that the applicant was appointed as Lab Attendant. The post of Lab Assistant never existed either in the past or at present, in the Schools run by North Eastern Railway. Later on the applicant was absorbed and regularized on the post of Chaukidar in a different unit. The Tribunal recorded findings that the post of Lab Assistant existed only on the ground that there was no denial in the counter affidavit. The matter came up to the High Court in Writ Petition No. 16050 of 2008. A Division Bench of the Court on 27.3.2008 found that the petitioner-respondents were required to decide the representation for consideration for promotion and the writ petition was dismissed on the ground that the order of re-consideration of promotion did not require any interference.

Shri Amit Sthalekar points out that subsequently by speaking order dated 24.2.2010 the General Manager, North Eastern Railway passed a detailed order giving specific and clear finding that the post of Lab Assistant never existed either in the past or at present in the Schools run by the North Eastern Railway and that the claim of Shri Pankaj Dhar Dubey for his promotion as Lab Assistant is not valid. Shri Sthalekar submits that the order of the General Manager, Norther Eastern Railway dated 24.2.2010 has not been challenged. Instead the applicant wants to get the earlier order of the Tribunal implemented on the ground that the post of Lab Assistant exists. Shri Sthalekar would submit that the post of Lab Assistant never existed and that in any case the applicant is serving in different unit cannot be promoted in the School.

We find that the applicant wants to implement the order for consideration of promotions which has already complied with, in contempt proceeding in which the officers of the Railways have been unnecessarily summoned.

Until further orders, the proceedings in Civil Misc. Contempt Petition No. 70/2010 in Original Application No. 509 of 2004 pending in the Central Administrative Tribunal, Allahabad Bench, Allahabad, shall remain stayed."

(12) Affidavits have been exchanged thereafter and Sri A.K. Gaur, learned counsel for the petitioners has urged that the direction dated 6th December, 2006 as extracted hereinabove clearly envisages that the claim of the respondent no. 1 was to be considered if there is a vacancy and if the applicant is otherwise found suitable. In the instant case, there is no vacancy nor was there any possibility of considering the claim of the respondent no. 1 and it is for this reason that the General Manager has passed the order on 24th February, 2010 which does not amount to disobedience of the said order. To the contrary, the order dated 24th February, 2010 is in compliance of the directions dated 6th December, 2016 and once the order has been complied with by passing a reasoned order then any allegation of disobedience evaporates. He, therefore, submits that there was no ground available for the Tribunal to have invoked its authority to punish for contempt under Section 17 of the Administrative Tribunals Act, 1985. Hence, the impugned order lacking in authority, this Court has rightly passed an interim order as extracted above and the impugned order deserves to be quashed.

(13) Sri Gaur has relied on the Apex Court judgment in the case of T. Sudhakar Prasad Vs. Government of Andhra Pradesh and others 2001 Vol. 1 JT SC 204=2001(1) SCC Page 516 to buttress his submissions and to urge that in the exercise of extra-ordinary jurisdiction under Article 226 of the Constitution of India, this Court has the authority to interfere being a Supervisory Authority in terms of Article 227 of the Constitution to correct the error namely that of jurisdiction of the Tribunal, hence the writ petition is maintainable.

(14) Replying to the said submissions, Sri Gautam, learned counsel for the respondent no. 1 has urged that the disobedience is not only of the order dated 6th December, 2006 but also of the order dated 18th November, 2009. He submits that the order dated 18th November, 2009 categorically sets aside the order dated 25th April, 2008 which was on identical terms as the subsequent contemptuous order dated 24th February, 2010. He further submits that the order in execution dated 18th November, 2009 was never challenged by the petitioners before any higher forum nor was it questioned at any stage of the proceedings. Thus, the contempt of the said order was also made out and consequently, the Tribunal was well within its authority and jurisdiction to invoke the powers under Section 17 of the 1985 Act to issue a notice to the petitioners calling upon them to answer the notice as to why they should not be punished for the disobedience of the said orders. The order dated 24th February, 2010 passed by the General Manager was not only contemptuous but was a clear repetition of the order dated 25th April, 2008 that had already been set aside by the Tribunal on 18th November, 2009. Further, it was in teeth of the observations and findings recorded in paragraph no. 5 of the judgment dated 6th December, 2006 extracted hereinabove. He, therefore, contends that the issue as to whether contempt had been committed by disobedience of the orders or not, was yet to be tried and adjudicated upon after framing of charges and therefore, the petitioners could not have preempted the same by filing this petition as the exercise of authority by the Tribunal did not suffer from any lack of jurisdiction or authority.

(15) He further submits that the merits of the claim cannot be set up as a defence by the petitioners in order to challenge the contempt proceedings initiated in the present case.

(16) We have given our thoughtful consideration and what we find is that the power of contempt to be exercised by Central Administrative Tribunal is at par with that of the High Court as contemplated under the Contempt of Courts Act, 1971. Section 17 is extracted hereinunder :-

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 modifications 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 a State or a Joint Administrative Tribunal for two or more States, as a reference to the Advocate-General of the State or any of the States for which such Tribunal has been established.

(17) The Tribunal, in the instant case, has issued notices and has called upon the opposite party in the Contempt Application for appearing before it in order to frame charges and then proceed in the matter. In our opinion, this stage cannot be a stage for entertaining a writ petition on the ground as if the Contempt Application was not maintainable, and the Tribunal had no jurisdiction to proceed with the same. To our mind, it appears that the Tribunal on a perusal of the order dated 18th November, 2009 as well as the order dated 6th December, 2006 was of the prima facie opinion that disobedience has been committed. The Contempt Application was filed against three named officials. Unfortunately the said officials, who were summoned in person have not filed the present writ petition. The present writ petition has been filed in the name of the designation of the officials and not in their own personal capacity. The writ petition, therefore, as framed on behalf of the personnel in their official capacity would not be maintainable when the notices have been issued in person to the then officials who were being complained of having disobeyed the orders. The framing of the writ petition, therefore, is erroneous in the name of the official capacity of the officials of the Railways and the institution concerned and is not entertainable.

(18) The issue of finality in relation to the dispute of the vacancy and availability of the post of Lab Assistant was an issue which was decided in paragraph no. 5 of the judgment dated 6th December, 2006 as extracted hereinabove. Even if, it is presumed that the operative part of the said judgment in paragraph no. 8 allowed the authority to proceed if the vacancy was available then too, an order came to be passed by the High Court dismissing the writ petition filed by the petitioners on 27th March, 2008. The finding recorded in paragraph no. 5 of the order dated 6th December, 2006 was therefore, upheld and not set aside. Apart from this, an attempt to get the judgment of the Tribunal reviewed also failed and the review application was dismissed on 10th December, 2007. The respondent no. 1 filed a Contempt Application No. 92 of 2007 and the order passed therein and extracted hereinabove directed the authority to ensure compliance within three months. Thereafter also the petitioner-General Manager passed an order on 25th April, 2008 again rejecting the claim of the respondent no. 1 which was set aside in the execution application decided on 18th November, 2009. The said order in the execution application was never challenged by the petitioners and has attained finality. The petitioner no. 1 then proceeded to pass an order on 24th February, 2010 which has given rise to the action for contempt.

(19) The Contempt Application would therefore, be maintainable if a disobedience is being alleged in respect of an order which has attained finality. The defence of the petitioners on this issue can be examined only after the charges are framed and their defence is considered in order to establish as to whether the order dated 24th February, 2010 passed by the General Manager is contemptuous or not. This trial cannot be preempted by taking recourse to the discretionary jurisdiction or supervisory jurisdiction of this Court under Articles 226 and 227 of the Constitution of India as this would amount to preventing the Central Administrative Tribunal from determining its own authority to proceed in a matter of contempt where disobedience is alleged. An order amounting to prohibition or a mandamus restraining the Tribunal from exercising its authority to examine the nature of the contempt alleged therefore, would not be permissible under the garb of a writ of certiorari which has been prayed for to quash the order whereby the officials have been summoned.

(20) The argument of Sri A.K. Gaur, learned counsel for the petitioners that the contempt proceedings are not maintainable, is therefore without any substance on the facts as disclosed and discussed hereinabove in the present case. The judgment in the case of T. Sudhakar Prasad(supra) as relied upon by the learned counsel for the petitioners particularly paragraph no. 16 in no way comes to the aid of the petitioners so as to invoke the supervisory jurisdiction under Article 227 of the Constitution of India. It is no doubt true that the Tribunal is amenable to the jurisdiction of this Court but at the same time, it is not necessary for this Court to interfere with the proceedings unless it is established that the proceedings are coram non judice. In the instant case, there is no material before us so as to demonstrate that the Tribunal cannot or could not have issued a notice to the officials of the petitioners to answer the contempt notice.

(21) We may again put on record that the manner in which this writ petition has been framed in the official capacity of the officers, appears to be only to save them of liabilities which they ought to incur and is a saving device for reasons best known to them. The aggrieved persons would be the officials who had been impleaded by name in the Contempt Application and not the officers in official capacity as the present petition arises out of the contempt proceedings before the Tribunal.

(22) There is yet another aspect namely that against the punishment by the Tribunal upon conviction, an appeal lies directly to the Supreme Court and in such circumstances to entertain, a writ petition would be not in conformity with the scheme of the Contempt of Courts Act, 1971 read with Section 17 of the Administrative Tribunals Act, 1985 unless the proceedings are patently without jurisdiction or are otherwise ultra vires the Constitution or the provisions of any Act. A writ petition may lie against an order of the Tribunal refusing to issue notices for contempt as held by the Apex Court in the case of Sujitendra Nath Singh Roy Vs. State of West Bengal and others 2015(12) SCC Page 514. The preliminary objection raised by the respondent no. 1 as incorporated in the interim order dated 16th December, 2010 had not been answered in the said order nor have we been able to find any argument on behalf of the petitioners that may dislodge the preliminary objection raised by the respondent.

(23) Further, as observed hereinabove, once the Tribunal itself had issued directions on 22.01.2008 for ensuring the orders for compliance in the contempt to jurisdiction and leaving it open to the respondent no. 1 to file a fresh Contempt Application in the event of non-compliance vide judgment dated 22nd January, 2008, we see no reason over and above the reasons indicated hereinabove as to why the respondent no. 1 could not have filed the Contempt Application when he alleges the order dated 24th February, 2010 to be a contemptuous order which is yet to be examined in the proceedings before the Tribunal.

(24) The Contention raised on merits as to whether the orders of the Tribunal were being capable of complied with or not, is a matter of defence but that by itself cannot be a ground to treat the proceedings initiated under Section 17 to be without jurisdiction or unfounded.

(25) Consequently, for all the aforesaid reasons and the facts in the present case that have emerged, we do not find this to be a case to invoke our extra-ordinary jurisdiction under Article 226 of the Constitution of India or our supervisory jurisdiction under Article 227 thereof so as to preempt the proceedings of contempt on the mere issuance of the notices to the officials of the petitioners.

(26) The writ petition, therefore, is dismissed with the observations hereinabove.

Order Date :- 17.08.2017 Sumit S

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