Central Administrative Tribunal - Delhi
Apurv Agarwal vs K.P. Mahadevaswamy & Ors National ... on 20 May, 2025
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Item 22 court no.4 MA No.535/2025 in CP No.395/2024 in
OA No.2007/2022 MA No.2537/2024
Central Administrative Tribunal
Principal Bench, New Delhi
MA No.535/2025
In
CP No.395/2024
in
OA No.2007/2022
MA No.2537/2024
Order Reserved on :15.05.2025
Order pronounced on:20.05.2025
Hon'ble Ms. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Sumeet Jerath, Member (A)
Apurv Aggarwal
Aged 45 years, S/o Shri K.C.Aggarwal
R/o C-118, East of Kailash
New Delhi - 110 065
Phone:+91-9971002656. ...Petitioner
E-mail:[email protected]
(By Advocate:Mr.K.C. Aggarwal)
Versus
1. Shri K.P. Mahadevaswamy
Chairman & Managing Director (CMD)
NBCC Bhawan, Lodhi Road
New Delhi - 110 003.
E-mail:[email protected]
Phone:011-24367314.
2. Shri Manas Kaviraj
Head HR (Sr. Executive Director)
NBCC (India) Limited, 3rd Floor
NBCC Bhawan, Lodhi Road
New Delhi -110 003.
E-mail:[email protected]
Phone:011-23385227.
3. Smt. B.K. Sokhey (Director-Finance)
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Item 22 court no.4 MA No.535/2025 in CP No.395/2024 in
OA No.2007/2022 MA No.2537/2024
Chairman of DPC (2023-24)
NBCC (India) Limited, 3rd Floor
NBCC Bhawan,Lodhi Road
New Delhi - 110 003.
E-mail:[email protected]
Phone:011-24367314
4. Shri Saleem Ahmed (Director-Projects)
Member of DPC (2023-24)
NBCC (India) Limited, 3rd Floor
New Delhi - 110 003.
E-mail:[email protected]
Phone:011-24367314.
5. Unknown Members of Review DPC
Dated 21.03.2024
Through : Respondent-2
NBCC (India) Limited, 3rd Floor
NBCC Bhawan, Lodhi Road
New Delhi - 110 003
E-mail:[email protected]
Phone:011-24367314.
6. Shri Anurag Jain (Secretary)
Union Minsitry of Housing and Urban Affairs
122-C, Nirman Bhawan
New Delhi - 110 011. ...Respondents
(By Advocate:Mr.R.V. Sinha)
ORDER
By Hon'ble Mrs. Harvinder Oberoi, Member (J) MA No.535/2025 Miscellaneous Application No.535/2025 has been filed by the applicant seeking the following relief(s) :-
"(1) Allow the review application, recall the impugned order dated 14.01.2025 and proceeds as per law for 3 Item 22 court no.4 MA No.535/2025 in CP No.395/2024 in OA No.2007/2022 MA No.2537/2024 determining whether disobedience has been committed, whether the disobedience is willful and deliberate, whether opportunity need to be given to the respondent to remove, erase, and purge itself of contumacious conduct and resultant effects and to determine what punishment to the respondent would meet the ends of justice.
(II) Such further orders may be passed in favour of the applicant petitioner as may be considered just and appropriate in the facts and circumstances of the case."
2. Counsel for the applicant submits that the Contempt Petition as filed by him has been disposed of by the Tribunal on 14.01.2025. He has filed this Application on 31.01.2025 seeking review of the said order as such the same is within limitation.
3. He submits that the Contempt Petition was filed by the applicant, aggrieved of the wilful violation of the order dated 01.03.2024, in OA No.2007/2022. He submits that on 01.03.2024 the following observations were made by the Tribunal in OA No.2007/2022:-
"(a) the minutes/proceedings of the DPC for the year 2020-21 (Group A post), which is the subject of this OA, are quashed and set aside only to the extent they relate to promotion to the post of CGM (Engineering) from the post of GM (Engineering).
(b) the subsequent promotion orders dated 01.10.2021 bearing No.50/2021 also stands quashed and set aside with respect to promotion from GM (Engineering) to CGM (Engineering) only.4
Item 22 court no.4 MA No.535/2025 in CP No.395/2024 in OA No.2007/2022 MA No.2537/2024
(c) any other consequential order(s) with respect to promotion from the post of GM (Engineering) to CGM (Engineering) which may have been passed on the recommendations of the said DPC proceedings, too shall stand quashed so far as it relates only to the post of CGM (Engineering).
(d) the respondents shall convene a meeting of the Review DPC immediately and while conducting such a review, specific observations and directions contained in this order shall be given due consideration.
(e) depending upon the recommendations of the DPC, necessary promotion orders shall be reissued for the post of CGM (Engineering)."
4. He submitted that the respondents were required to conduct review DPC however they have done the same in the spirit of the order of the tribunal. The applicant had approached the Tribunal claiming non-compliance since the respondents had disobeyed the order of the Tribunal by not holding the DPC in terms of para 14 (d) of the decision, rather an Office Order No.599/2024, dated 28.03.2024 was passed.
That the Tribunal has erred in considering the same as a compliance of the directions of the Tribunal in the said OA as such the present MA has been filed seeking review.
5. He submitted that the office order No. 599/2024 has nothing to do with the DPC-2021, rather it pertains to the DPC of 2023-2034. Therefore, the respondents are guilty of wilful non-compliance.
5Item 22 court no.4 MA No.535/2025 in CP No.395/2024 in OA No.2007/2022 MA No.2537/2024
6. Upon notice in the MA, respondents have filed reply to the said MA. The counsel for the respondents, drawing attention to the reply, stated that there is no statutory provision in the Contempt of Courts Act for enabling the court to review its any order passed in the contempt proceedings. It is also trite law that power of review is not the inherent jurisdiction of any court or Tribunal, rather it is the statutory power vesting such jurisdiction of review in the concerned court or Tribunal and in absence of such provision, the review is not maintainable.
7. He has also relied on the Full Bench decision of this Tribunal in "Satyapal Singh &Ors. Vs. I.M.G. Khan &Ors.", reported as 2013 SCC online CAT 54, with specific reference to paras 8, 9, 14-16 and 24. The said paras as under:-
"8. Sri R.C. Pathak, lastly referred to Rule 24 of the CAT (Procedure) Rules, 1987 which provides as under:-
"24. Order and directions in certain cases -
The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect to its order or to prevent abuse of its process or to secure the ends of justice.
The aforesaid Rules 1987 have been framed in exercise of powers conferred by Section 35 and 36 of the Act. But these Rules do not deal with contempt matters for which there are separate 6 Item 22 court no.4 MA No.535/2025 in CP No.395/2024 in OA No.2007/2022 MA No.2537/2024 rules namely CAT(Contempt of Courts) Rules, 1992. The above procedure Rules have been framed in respect of Administrative Tribunal Act and are meant only for service cases/OAs which are filed before the Tribunal u/s 19 of the Act. This section cannot be also construed to be equivalent to the inherent powers conferred upon the Civil Courts u/s 151 of the Civil Procedure Code which are very wide in nature. On the contrary, the application of CPC in the Tribunal has been restricted to only nine matters as contained in Section 22 (3) from (a) to (i) and this list is exhaustive. We have also compared the language of Section 151 of CPC vis-`-vis the language of Section 24 of the CAT (Procedure) Rules, 1987. There is a vast difference between the two and therefore, it cannot be said to be a replica of the inherent powers contained in Section 151 CPC. This has been done by the legislature knowingly and cautiously lest the entire scheme to get the service matters decided by the Tribunal expeditiously would be frustrated. It would not be out of context to mention here that on the criminal side also, in Criminal Procedure Code, inherent powers of the Courts have been saved specifically u/s 482 Cr.PC but no such power has been saved either in the Contempt of Court Act 1971 or in the Central Administrative Tribunal (Contempt of Courts) Rules, 1992. Therefore, this submission also lacks merits..
9. Sri Raghvendra Pratap Singh, the learned counsel for the other side, opposed the aforesaid submissions made by Sri R.C. Pathak, by saying that there is no enabling provision for the Tribunal to recall/ review the orders passed on merits in a contempt case. It was also pointed out by some of the learned counsel mentioned in para 4 of this order/judgment that in the Act and the CAT Rules, the word Application has been used and therefore, any provision of the Act or CAT (Procedure) Rules cannot be made applicable in the matters pertaining to contempt petition. On the other hand in the Central Administrative Tribunal (Contempt of Courts) Rules, 1992 the word Petitionhas been 7 Item 22 court no.4 MA No.535/2025 in CP No.395/2024 in OA No.2007/2022 MA No.2537/2024 purposely used in Section 3 and 5 etc. and these Rules have been framed in exercise of powers conferred by Section 22(3) of the Contempt of Courts Act, 1971 read with Section 17 of the Act, 1985. It is also noteworthy that against an order of punishment passed in contempt petition, remedy of appeal and not review or recall is provided to a contemnor. Then how (in the absence of specific enabling provisions), such a remedy can be said to be available to a petitioner against a final order of dismissal of the contempt petition passed on merit. As already discussed, we find substance in the above submissions made from the other side.
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14. A Division Bench of Honble High Court, Allahabad consisting of Honble Binod Kumar Roy and Honble P.K. Jain, JJ in the case of New India Insurance Company Ltd. Vs. Smt. Bimla Devi and others reported in 1998 (33) ALR page 456- while following the aforesaid full bench of Shivragi (supra), it was observed that it is a settled law that appeal/ revision/ review are creation of statute and no litigant has got an inherent right to prefer appeal/ revision or review. It also referred to the decision of Honble Apex Court in Harbhajan Singh (supra), wherein it has been clearly laid down that in absence of any power, review is impermissible.
15. A Division Bench of Honble High Court of Judicature at Allahabad, Lucknow Bench has recently (by its order dated 17.1.2013 passed in Writ Petition No.66/2013 Mahavir Prasad Vs. CAT Lucknow an Others) upheld an order dated 13.9.2012 passed by CAT, Lucknow Bench in Civil Contempt Petition No. 22/2009 by observing that recall/ review application is not maintainable. The Honble High Court further observed that virtually recalling of the order dated 10.1.2012 passed by CAT, Lucknow Bench will amount to review its earlier decision which was passed with the findings on merit (as is the situation in the present case). Therefore, unless provided under the Act, no application for review/recall can 8 Item 22 court no.4 MA No.535/2025 in CP No.395/2024 in OA No.2007/2022 MA No.2537/2024 be moved. It was also specifically observed by the Honble High Court that the contempt of Court Act, 1971 does not contain any provision for review of a judgment.
16. In fact contempt is a matter between the court and the alleged contemnor. Any person who moves the machinery of court for contempt only brings to the notice of the Court certain facts constituting contempt of court. After furnishing such an information, he may still assist to the Court but it always be borne in the mind that in a contempt proceedings, there are only two parties namely court and the contemnor., It may be one of the reasons why the legislature did not confer any right of appeal on the petitioner for contempt. The aggrieved party u/s 19(1) of the Act, 1971 can only be the contemnor who has been punished for contempt of court. Thus the contempt of court is not in strict sense a cause or matter between the parties inter- se but the matter between the court and the contemnor and as such the same cannot be at the discretion or benefit of the parties.
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24. In view of the discussions made in the foregoing paragraphs, it is our considered view that recall application is not maintainable against an order passed in a contempt case decided on merits. We would like to add that Tribunal should refrain itself from dismissing a contempt case for default, particularly after issuance of show cause notice as discussed above. However, if such an order has been passed by a Tribunal, the absence of vesting /conferment of power of recall/ review shall not come in the way of recalling because of such order being ab-initio void and nonest and it would be constitutional and legal obligation of a Tribunal to recall such an order as discussed hereinbefore. Thus the matter in question which has been referred to this Full Bench, is answered accordingly. The Civil Misc. Recall Application dated 3242/2011 in Civil Contempt Petition No. 164/2007 pertaining to O.A. 9 Item 22 court no.4 MA No.535/2025 in CP No.395/2024 in OA No.2007/2022 MA No.2537/2024 No. 1111/2000 will be placed before the appropriate bench for disposal in the light of this order/judgment.
8. The respondents have also relied on the decision titled Nimai Charan Mohanty Vs. Chittaranjan Mohapatra & Ors., reported as 2014(1) SLJ 25 (CAT).
Paras 11-14 thereof are as under:-
"11. Need not to say that the question of determination in the contempt petition is very limited as observed by Hon'ble Apex Court earlier that the Tribunal can only look into as to whether the order of the Tribunal has been duly complied with or not and if complied no contempt lies. As observed by Hon'ble Apex Court as well as by Hon'ble High Courts the scope in the contempt proceedings is very limited.
In view of the facts, the question which arise for consideration in the instant contempt petition is that if an order passed by the Tribunal/Court, the authorities have considered the case of the applicant and came to the conclusion on the basis of reasoning given therein that the applicant was further transferred or a decision is taken, whether the contempt petition filed by the applicant is maintainable or not, on the ground that such action is not in accordance with the directions given by the Tribunal as per the version of the applicant. The scope of contempt is limited an the Tribunal/Courts cannot re-appreciate the evidence in the contempt proceedings. The answer to the above question lies in the following judgments passed by the Hon'ble Apex Court:
In the case of J.S. Parihar v. Ganpat Duggar and Others (supra), the Apex Court has held as under:-10
Item 22 court no.4 MA No.535/2025 in CP No.395/2024 in OA No.2007/2022 MA No.2537/2024 The question then is whether the Division Bench was right in setting aside the direction issued by the learned Single Judge to redraw the seniority list. It is contended by Mr. S.K. Jain, the learned Counsel appearing for the appellant, that unless the learned Judge goes into the correctness of the decision taken by the Government in preparation of the seniority list in the light of the law laid down by three Benches, the learned Judge cannot come to a conclusion whether or not the respondent had willfully or deliberately disobeyed the orders of the Court as defined under Section 2(b) of the Act. Therefore, the learned Single Judge of the High Court necessarily has to go into the merits of that question. We do not find that the contention is well founded. It is seen that, admittedly, the respondents had prepared the seniority list on 2.7.1991. Subsequently promotions came to be made. The question is whether seniority list is open to review in the contempt proceedings to find out whether it is in conformity with the directions issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by the Court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the willful violation of the order. After re-exercising the judicial review in contempt proceedings, a fresh direction by the learned Single Judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act.11
Item 22 court no.4 MA No.535/2025 in CP No.395/2024 in OA No.2007/2022 MA No.2537/2024 In the case of Lalit Mathur v. L. Maheswara Rao, (2000) 10 SCC 285, the Hon'ble Supreme Court held as under-
The High Court in the writ petition had issued a direction for the consideration of the respondent's representation by the State Government. This direction was carried out by the State Government which had considered and thereafter rejected the representation on merits. Instead of challenging that order in a fresh writ petition under Article 226, the respondent took recourse to contempt proceedings which did not tie as the order had already been complied with by the State Government which had considered the representation and rejected it on merits.
Further in the case of Ashok Kumar Pandey v. Ashok Kumar Singh, D.I.O.S., Ballia and Others, MANU/UP/1613/2003: 2003 (5) AWC 4393 this Court has held as under-
The D.I.O.S. considered the report and the matter of appointment of the applicant in great detail. He observed in the previous writ petition the applicant claimed his appointment under Section 18 of the U.P. Secondary Education Service Commission Act, 1982. However, in the second writ petition, he claimed his appointment under Removal of Difficulties II Order. Both these matters were considered and it was held that the appointment is not according to the rules either under Section 18 of the U.P. Secondary Education Service Commission Act, 1982, or the appointment was disapproved. It is further contended that previous approval in compliance of the order passed in the writ petition was passed by the Sub-Divisional Magistrate, who was holding the charge of D.I.O.S. without considering the provisions of the Act.
Therefore, the direction of this Court has been complied with. If the applicant is aggrieved by 12 Item 22 court no.4 MA No.535/2025 in CP No.395/2024 in OA No.2007/2022 MA No.2537/2024 the order of the D.I.O.S. deciding the matter and is of the view that the decision is not correct, he may challenge the same in the appropriate writ or in other proper proceedings. There is no ground to proceed with the contempt. The petition for contempt is accordingly dismissed.
In the case of Brahma Deo Tiwari v. Alok Tandon, District Magistrate, Allahabad, MANU/UP/0632/2003: 2004 (1) AWC 543 this Court has held as under:
As already noted hereinabove, this contempt petition has been filed alleging violation of the order of the writ Court dated 10.12.1997 by which the writ Court had directed to consider the case of the applicant with regard to his appointment. The contempt Court after perusing the order dated 11.7.1997, though had disapproved the decision taken by the opposite party, had directed vide order dated 10.12.1997, to reconsider the case of the applicant after taking into consideration different aspect which are mentioned in the order itself. By the order dated 17.12.2002, the opposite party has considered all the aspects mentioned in the order dated 10.12.1997.
Counsel for the applicant has urged that the order dated 17.12.2002 is neither legally nor factually correct. It may be so, but it is well settled that the contempt Court can neither sit in appeal nor examine the correctness of a resultant order. The Apex Court in Lalith Mathur v. L. Maheshwara Rao (supra) and MANU/SC/0037/1997: (1996) 6 SCC 291, has held that correctness of an order passed by a statutory authority on the directions of the writ Court cannot be examined under the contempt jurisdiction. No doubt the resultant order may give rise to a fresh cause of action.
In the case of Shail Raj Kishore, Secretary, Education Basic, U.P. Lucknow and Others, 13 Item 22 court no.4 MA No.535/2025 in CP No.395/2024 in OA No.2007/2022 MA No.2537/2024 MANU/UP/0318/2004: 2004 (3) AWC 2444, this Court has held as under:-
If the applicants feel that the order passed by the opposite party is not in accordance to the intent or desire of the Court or otherwise illegal and arbitrary, the same can only be challenged before the appropriate forum. In various cases, Apex Court has held that the Contempt Court cannot go into the merit of the order. Various grounds raised by the learned for the applicant to submit that the order is bad in law required consideration and adjudication, which can only be done by the appropriate Court and not by this Court.
In the case of Anil Kumar Shahi (2) v. Prof. Ram Sevak Yadav, MANU/SC/3388/2008: 2009 (2) SLJ 297 (SC): (2008) 14 SCC 115, the Apex Court held as under:
When the Court directs the authority to consider a matter in accordance with law, it means that the matter should be considered to the best of understanding of an authority to whom direction is given, therefore, mere error of judgment with regard to the legal position does not constitute contempt of Court. There is no willful disobedience if best efforts are made to comply with the Court order.
12. Apart from this, the learned Counsel for the respondents relied upon on the decision rendered by the Hon'ble Apex Court in the case of Chhotu Ram v.
Urvashi Gulati and Another, MANU/SC/0492/2001:
AIR 2001 SC 3468. The Hon'ble Apex Court has observed as under:-
Court directed for considering the case of the applicant for promotion. The case of the petitioner was duly considered but his claim for promotion was rejected and in that event, since the case of the applicant was considered as such, the contempt proceedings cannot be 14 Item 22 court no.4 MA No.535/2025 in CP No.395/2024 in OA No.2007/2022 MA No.2537/2024 proceeded as there is no violation of any direction issued by the Court The Hon'ble Apex Court in the case of Anil Kumar Shahi and Others v. Prof. Ram Sevak Yadav and Others (supra) has been further pleased to observe as under:-
In other words, while exercising its power under the Act, it is not open to the Court to pass an order, which will materially add to or alter the order for alleged disobedience of which contempt jurisdiction was invoked.
13. As has been emphasized by the Hon'ble Apex Court from time-to-time that in Contempt proceedings, the Tribunal is the accuser as well as Judge of the Accusation. Therefore, it behooves the Tribunal to act with great circumspection as far as possible by making all allowances from errors of judgment. The litmus test for determining the nature of contempt, as has been propounded by Hon'ble Apex Court in very many cases is that violation of the order should have been committed by a party with a deliberate intention to mislead the Tribunal for obtaining a favourable order. Mere allegation that false statement or an inaccurate averment has been made in the reply filed by the Authority would not suffice or is adequate enough for this Tribunal to proceed in a Criminal Contempt.
In the instant case, Learned Counsel for the applicant has failed to establish, beyond reasonable doubt, that the alleged Contemnors have intentionally, deliberately or willfully made false averment in the show cause so as to obtain a favourable order from this Tribunal. In fact what is the favourable order designed to be achieved by the alleged Contemnors has not been focussed anywhere in the present Contempt Petition.
14. The Tribunal is vested with the power of contempt which needs to be exercised as already stated with lot of circumspection and the objective is not to punish the official or parties indiscriminately just because interest of individual/applicant has not 15 Item 22 court no.4 MA No.535/2025 in CP No.395/2024 in OA No.2007/2022 MA No.2537/2024 been sub-served due to certain stand taken by the respondents/alleged Contemnors. The interest of public justice rather than the interest of 24 Individual/applicant show cause filed by the CPO, S.E. Railway, Garden Reach dated 22.10.2008 that due to bifurcation of the Railway, records relating to the applicant were transferred to: E. Co. Rly. and as such, the CPO, SE Rly. Garden Reach, Calcutta issued instruction to E. Co. Rly. to pass appropriate order in compliance of the order of this Tribunal. Accordingly, orders were issued by Controlling Authority of the E. Co. Rly.; which action cannot be faulted."
9. Heard and considered rival submissions. We have already noted in the order under review that the respondents have indeed conducted the review DPC and have issued the office order. Further, the said office order is also subject matter of the challenge before this Tribunal in another OA No.2097/2024 filed by the same applicant which is still pending adjudication.
11. We find force in the arguments of the counsel for the respondents that the present miscellaneous application is not maintainable in view of the settled law referred to above. Further the same seems to be an attempt to re-argue the matter.
12. Further, on the power of the Tribunal to review its own orders, the Hon'ble Supreme Court has laid down clear and 16 Item 22 court no.4 MA No.535/2025 in CP No.395/2024 in OA No.2007/2022 MA No.2537/2024 exhaustive guidelines in its judgment in the case of State of West Bengal & Others v Kamal Sengupta and another (2008(3) AISLJ 209). The prayer of the applicant in the MA is actually an appeal against the Order of the Tribunal in the garb of Miscellaneous Application which is not permissible as per law. Accordingly, MA is dismissed.
(Dr. Sumeet Jerath) (Harvinder Kaur Oberoi)
Member (A) Member (J)
/uma/