Central Administrative Tribunal - Allahabad
Havaldar Singh vs B. V. Sudhakar Secretary on 15 May, 2018
(Reserved on 08.05.2018
CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD
BENCH, ALLAHABAD
(This the 15th Day of MAY 2018)
Hon'ble Dr. Murtaza Ali-JM
Hon'ble Mr. Gokul Chandra Pati - AM
CCP No. 26 of 2017
(Arising out of Original Application No.679 of 2014)
1. Havaldar Singh S/o Late Ram Bharat Singh, R/o 123 Sangam
Park, Khora Colony, Sector-62, Noida, District Ghaziabad.
................ Applicant
By advocate: Shri Anil Kumar Singh
Versus
1. B.V. Sudhakar, Secretary Ministry of Post & Telecommunication
Department of Post, Govt. of India, New Delhi.
2. Dr. Y.P. Rai, Chief Post Master General, U.P. Circle, Lucknow.
3. Priyanka Mishra, Senior Superintendent of Post Offices, Ghaziabad
Division, Ghaziabad.
4. Amit Maheshwari, Assistant Superintendent of Post Offices, Noida.
5. Rajeev Srivastava Assistant Superintendent of Post Offices, Noida,
presently posted in the Divisional Office - District Ghaziabad.
................... Respondents
By advocate: Shri R.K. Srivastava
Shri S. Srivastava
ORDER
Delivered by Hon'ble Mr. Gokul Chandra Pati -A.M. This contempt petition is filed for non compliance of the order dated 16.12.2016 passed by this Tribunal in OA No 679 of 2014. The facts of this case in brief are that the applicant who was appointed as a GDS in the year 2000, qualified in written examination for the post of Post Man and was promoted in May, 2007. Subsequently, he also qualified in the departmental examination for promotion to the cadre of Postal Assistant. His result was declared vide order dated 09.04.2014 issued by the Office Page 2 of 10 of CPMG, Lucknow (respondent no.2 in the CCP). However, subsequently the applicant was charge-sheeted after issuance of the result. The dispute in OA No. 679 of 2014 was whether the benefit of promotion in pursuance of the said examination can be denied to the applicant on the basis of issuance of the charge sheet after declaration of the result of the applicant declaring him to be qualified in the said examination. This Tribunal adjudicated the dispute and vide order dated 16.12.2016 held as under:-
"8. With the above said observations, the O.A. is allowed in respect of relief Nos. 2 and 3. Para-2 of the Note of letter dated 05.05.2014 is quashed and accordingly, the respondents are directed to declare the result of applicant and send him for training within a period of one month from the date of receipt of a certified copy of this order. No cost."
2. It is seen that as per the order of this Tribunal dated 16.12.2016, the direction was required to be complied with within a period of one month from the date of receipt of certified copy of the order. Since, the order was not complied with by the respondents, this CCP was filed by the applicant after expiry of one month. This Tribunal vide order dated 08.08.2017 granted last opportunity of four weeks to the respondents to comply with the order and in case it was not complied, the respondent no. 3 was to appear in person on the next date i.e., 04.10.2017. Ms. Priyanka Mishra, respondent no. 3, appeared in person and sought further time of six weeks to comply the order. On 27.10.2017, the respondents submitted before this Court that they have filed a Writ Petition against the order dated 16.12.2016 as well as the order dated 25.04.2017 passed in the review petition against the order dated 16.12.2016. Hon'ble High Page 3 of 10 Court did not pass any interim order to stay the order dated 16.12.2016 of this Tribunal and the respondents also moved civil miscellaneous application to recall the order dated 04.10.2017 passed by this Court in this contempt case. When the respondent no. 3 was directed to appear in person on 14.12.2017 to clarify the issue, she appeared and clarified that she was not the competent authority to take a decision in the matter as the matter related to compliance of the order of this Tribunal and the same was referred to the Office of the CPMG (Respondent no. 2) who further referred the matter to the Directorate (Respondent no. 1). Vide order dated 06.02.2018, this Tribunal directed the respondents to comply with the order within two weeks time failing which the respondent no. 2 was directed to appear in person. The same order was reiterated on 07.03.2018 taking note of the fact that the respondent no. 2, had reportedly been transferred in the meantime. Hence, finally the CPMG was directed to appear in person if order was not complied with. Vide order dated 24.04.2018, the respondents stated that they had filed the compliance affidavit on 23.04.2018 and the matter was fixed for 08.05.2018 for final hearing.
3. The case was heard on 08.05.2018. Learned counsel for the applicant pointed out to his affidavit filed on 10.01.2018 where the order dated 05.01.2018 of the Hon'ble High Court passed in Writ Petition No. 325 of 2018 filed by the applicant, the applicant was directed to approach this Tribunal for early decision in the contempt petition. He also pointed out that the competent authority for the applicant is respondent no. 3 and that in the miscellaneous application no. 239 of 2017 filed on 05.12.2017 by the applicant, it was stated that the writ petition no. 36725 of 2017 filed by the Page 4 of 10 respondents before the Hon'ble High Court against the order dated 16.12.2016 of this Tribunal has been dismissed vide order dated 15.11.2017 of Hon'ble High Court with the following observations:-
"Admittedly, on the date of the promotional examination and the declare of result there was no charge sheet against the respondent. The issuance of subsequent charge sheets are of no consequence as far as the promotion of the respondent on the basis of the result dated 06.04.2014 is concerned.
The memorandum dated 09.04.2013 issued on the date the result was declared to the effect that the current status of the candidates has to be ascertained before declaration of the result is of no consequence in as much as the conduct of the candidate subsequent to the declaration of the result is of no effect. A successful candidate cannot be denied promotion on the basis of the subsequent conduct. Accordingly, we find no error or illegality in the impugned order. The petition lacks merit and is dismissed."
4. Learned counsel for the applicant also pointed out that against the order of this Tribunal, the respondent no. 3 (Ms Priyanka Mishra) filed Writ Petition No. 52377 of 2017 before the Hon'ble High Court which was dismissed vide order dated 15.11.2017 on the same day as the order was passed dismissing respondents' writ petition against the Tribunal's order dated 16.12.2016. It was further submitted that this is a clear case of contempt as the order of this Tribunal dated 16.12.2016 which has been upheld by the Hon'ble High Court vide order dated 15.11.2017, has not been complied with by the respondents inspite of number of opportunities provided to them.
Page 5 of 105. Learned counsel for the applicant further prays for appropriate action as per the provisions of law against the contemnors as per the following judgements cited by him in his affidavit dated 05.12.2017:-
(i) Judgement dated 09.05.2017 passed by Hon'ble Supreme Court in Contempt Petition (C) No. 1 of 2017
(ii) M.C. Mehta Vs Union of India and others, 2003 (3) SCC 1337; (2004 6 SCC 588 ; JT 2004 (Supp-2) SC109;
2004 (5) Scale 571 ; 2004 (4) Supreme 503; 2005 (2) ACR 1905 (SC)
(iii) 2001 (2) ACR 1255 (SC) Vidya Dhar Sharma Vs G.B. Patnaik
(iv) Civil Appeal No. 65-67 of 2009 @ SLP (C) Nos 12512- 12514 of 2007
6. Learned counsel for the respondents submitted that the respondents had challenged the order of this Tribunal in the Hon'ble High Court which was dismissed vide order dated 15.11.2017. Thereafter, the respondents filed a counter affidavit dated 30.01.2018 and in para-10 of the said counter affidavit, it is stated as under:-
"That the contents of paragraph No. 10 of the affidavit, hence denied, it is submit here that the consideration on the order passed by the Hon'ble CAT dated 16.12.2016 is under process. The case is being referred for compliance of order to the competent authority vide SSPOs Ghaziabad Letter no. LC/Court Case/679 of 2014 dated15.11.2017, 29.11.2017, 04.12.2017 and 05.12.2017 as a matter relates to policy. At present the Page 6 of 10 case referred to directorate for seeking advice of directorate."
7. Another civil miscellaneous application for exemption from personal appearance of the respondent no. 2 was filed on the ground that the matter has already been referred to the Directorate/Competent Authority and as the matter also involves some policy issues requiring guidance. Hence, it was requested to allow some more time to come to a conclusion in the matter.
8. Then on 06.03.2018, the counter affidavit was filed by the respondents where it was stated in para - 10 that compliance of the order dated 16.12.2016 of this Tribunal is under process. The case is being referred for compliance of the order to the competent authority vide the letter dated 15.11.2017, 29.11.2017, 04.12.2017 and 05.12.2017 of the respondent no. 3 as the matter relates to policy issues. It was stated that due to filing of review application and then filing of the writ petition before the Hon'ble High Court, the compliance has been delayed and there was no malafide intention of the respondent no. 3 for non-compliance of the order dated 16.12.2016.
9. In the affidavit filed on 23.04.2018 by Shri Vinay Prakash Singh, CPMG, Lucknow, it is stated that the issue of compliance of the order dated 16.12.2016 being a policy matter, the case was referred to Postal Directorate, New Delhi (respondent no. 1) in prescribed proforma along with supporting documents on 08.01.2018 for seeking directions and reminders were issued, but the directions from the Directorate are still awaited. In the meantime, the applicant was served with a charge-sheet on 16.04.2014 under Rule-14 of CCS (CCA) Rules, 1965, for which the applicant has Page 7 of 10 been dismissed from service vide order dated 28.03.2018. Since, the service of the applicant is no longer available before the department, his claim for promotion as per orders of this Tribunal is not sustainable. It is also stated that as per the judgement of the Hon'ble Apex Court when there are certain orders which cannot be complied with due to change of circumstances, contempt proceedings may not be initiated in such cases.
10. Learned counsel for the respondents also submitted that against the dismissal order of the Writ Petition, the department has initiated action for filing of SLP as per letter dated 03.05.2018 copy of which has been submitted by the learned counsel which is taken on record. The relevant portion of the aforesaid letter dated 03.05.2018 is quoted below:-
" I am directed to refer to UP Circle's DO letter No. Rectt/Court Case/LGO Exa,-2013/Shri Hawaldar Singh/Ghaziabad/2016/5 dated 13.04.2018 on the subject cited above and to say that the Competent Authority has approved to implement the order of Hon'ble CAT dated 16.12.2016 in OA No. 330/679/2014 as upheld by Hon'ble High Court vide order dated 15.11.2017 in CMWP No. 36725/2017 and 52377/2017, subject to the outcome of SLOP to be filed before the Hon'ble Supreme Court. The case is being referred to Department of Legal Affairs, Ministry of Law & Justice for considering the feasibility of filing an SLP. The Circle may depute an officer, well conversant with the case to follow up the matter with Department of Legal Affairs.
2. The Circle may implement the CAT order clearly indicating in its order that the CAT order is being implementing keeping the point of law open for filing an SLP in consultation with Department of Legal Affairs; and therefore the implementation order is subject to the outcome of the proposed SLP to be filed before the Hon'ble Supreme Court."Page 8 of 10
From the letter dated 03.05.2018, it appears that the respondent no. 1 has approved implementation of the order of this Tribunal subject to outcome of proposed SLP, if filed by Government, against the judgement of Hon'ble Allahabad High Court dated 15.11.2017 in the Writ Petition filed by the respondents challenging the order dated 16.12.2016 of this Tribunal.
11. From the materials on record as well as the affidavits filed by the respondents it is clear that the respondent no. 3 has moved the higher authorities on the ground that compliance of the order dated 16.12.2016 of this Tribunal involved matter relating to policy. Reference to the letter indicated in the affidavit filed by the respondent dated 30.01.2018 indicates that the respondent no. 3 moved higher authorities for a direction from the Directorate vide the respondent no. 3's letter dated 15.11.2017, 29.11.2017, 04.12.2017 and 05.12.2017. In other words prior to 15.11.2017, no action was taken by respondent no. 3 to obtain instructions of higher authority for compliance of order dated 16.12.2016 of this Tribunal, if it was required. Incidentally, the Directorate vide letter dated 03.05.2018, a copy of which has been submitted by the learned counsel for the respondents at the time of hearing has instructed the respondents for implementation of the order of this Tribunal subject to filing of SLPs. Had the respondent no. 3 moved the higher authorities immediately after the order dated 16.12.2016 was passed by this Tribunal, suitable instructions could have been obtained from higher authorities in this regard. But the respondent no. 3 delayed the matter till the Writ Petition No. 36725 of 2017 filed before the Hon'ble High Court against the order dated 16.12.2016 was dismissed vide order dated 15.11.2017. Only after the dismissal of the Writ Petition, action was initiated by the respondent no. 3 to implement the order dated 16.12.2016. During this time till 15.11.2017, this Court was being requested by the respondents Page 9 of 10 for some more time for compliance of the order as observed vide orders dated 31.05.2017 and 08.08.2017 in which last opportunity of four weeks time to comply with the order was granted and if not, the respondent no. 3 was directed to appear in person to explain the reasons of non- compliance to the Court. When the respondent no. 3 appeared in person before this Court on 10.04.2017 after challenging the order of personal appearance of this Court in Hon'ble High Court vide Writ Petition No. 52337 of 2017 which was also dismissed on 15.11.2017, the court was informed that instructions of competent authority is waited. Till that time i.e., 15.11.2017, the respondent no. 3 did not move the higher authorities for suitable instructions if she was of the opinion that instructions of authorities are required for compliance of the Tribunal's order
12. Looking to the series of events and conduct of respondent no. 3 as indicated above, we are of the view that respondent no. 3 has not shown any seriousness that was required to implement the order in spite of direction from this Court from time to time and has tried to mislead this Tribunal by stating that she has moved the higher authorities vide order dated 04.10.2017 and 14.12.2017 of this Tribunal in this contempt case and she has moved higher authorities only on 15.11.2017. The respondent no. 2 i.e., Dr. Y P Rai, CPMG at that point of time did not also take this matter seriously as revealed from the affidavit dated 23.04.2018 of the respondents, stating that the respondent no. 2 has moved the Postal Directorate (respondent no. 1) with supporting documents only on 08.01.2018 i.e., after more than one and half months of being moved by respondent no. 3 vide letter dated 15.11.2017. If in the opinion of the respondents, the compliance of the order of the Court involved some policy matter and instructions of higher authorities, they should have shown some more urgency.
Page 10 of 1013. It appears that respondent no. 3 was trying to delay the matter so that an appropriate order of punishment could be passed in the disciplinary proceeding against the applicant and as revealed from the affidavit dated 23.04.2018, the respondent no. 3 has passed the order dated 28.03.2018 dismissing the applicant from service, after which the order dated 16.12.2016 of this Tribunal has become infructuous and cannot be implemented.
14. In view of the above, we are of the considered view that although the order dated 16.12.2016 of this Tribunal cannot be implemented now since the applicant has been dismissed from service, but the conduct and action of the respondent no. 3 appear to be willful and deliberate with the intention of not implementing the order dated 16.12.2016 of this Tribunal in O.A. No. 679/2014, for which the respondent no. 3, prime facie, appears to be liable for civil contempt under the provisions of the Contempt of Courts Act, 1971.
15. Accordingly, the respondent no. 3 is directed to appear in person on 24.07.2018 at 10.30 am before this Court for framing of charges under Section-14 of the Contempt of Courts Act, 1971 read with the Rule (13) of the Contempt of Courts (C.A.T) Rules, 1992. The Registry is directed to issue suitable notice with a copy of this order to respondent no. 3.
(Gokul Chandra Pati) (Dr. Murtaza Ali)
Member (A) Member (J)
Arun