Central Administrative Tribunal - Jodhpur
Jugraj Arora vs S. Lakshminarayanan on 17 May, 2000
JUDGMENT
B.S. Raikote, V.C.
1. This Contempt Petition is filed complaining the dis-obedience of the order of this Tribunal dated 31.8.98 passed in O.A. No. 258/96. By the said order, the respondent No. 1 was directed to devise a mechanism so as to compensate the pensioners who had retired between 31.3.85 and 31.12.85, for the loss they have suffered because of the anomaly.
2. This Tribunal vide order dated 20.9.99 has directed to issue Notice. Accordingly, a notice was issued to the respondent stating "show cause why such action as is deemed fit under the Contempt of Courts Act, 1971, should not be taken against you". This notice is dated 21.9.99.
3. The respondent has put in appearance challenging the maintainability of the Contempt Petition. He further stated that the Contempt Petition is not maintainable on two counts: (i) As per the notice issued to the respondent, this Tribunals has not taken cognizance of the contempt as such, and even as on today the cognizance of the contempt has not been taken. Whereas, the order 'of this Tribunal, the dis-obedience of which is complained of, is dated 31.8.98 and as such the Contempt Petition is barred by limitation of one year under Section 20 of the Contempt of Court's Act. (ii) Even otherwise, the Contempt Petition itself is filed after one year. The order is dated 31.8.98, and the Contempt Petition is filed on 6.9.99. Therefore, on this Court also, the Contempt Petition is liable to be dismissed. In support of his contention, the learned counsel for the respondent relied upon be judgment of the Hon'ble Supreme Court reported in (2000) 3 SCC 171 and the judgment of the High Court of Rajasthan, reported in 1993 (3) WLC (Raj) 397.
4. As against the above argument of the learned coithsel for the respondent, the learned counsel for the applicant submitted that the Contempt Petition is in time. He relied upon an unreported judgment of this Tribunal dated 18.2.98 passed in C.P. No. 5/96 (O.A. No. 47/1989), contending that this Tribunal has already held that in such cases, issuing show cause notice itself constitutes taking cognizance of the contempt by this Tribunal. This Tribunal has already issued notice vide order dated 20.9.99 and on that basis, the contempt has been taken cognizance of. Therefore, the Contempt Petition is not barred by time.
5. We have given very anxious consideration to the facts of this case. Before discussing the facts of this case we think it appropriate to notice the legal question on the subject matter in question. The Hon'ble Supreme Court in the latest judgment reported in (2000) 3 SCC 171, has laid down the law as under:
"15. In the cases contemplated by (i) or (ii) above, it cannot be said that any proceedings for contempt have been initiated. Filing of an application or petition for initiating proceedings for contempt or a mere receipt of such reference by the Court does not amount to initiation of the proceedings by Court. On receiving any such document it is usual with the Courts to commence some proceedings by employing an expression such as "admit", "rule", "issue notice", or "issue notice to show cause why proceedings for contempt be not initiated". In all such cases the notice is issued either in routine or because the Court has not yet felt satisfied that a case for initiating any proceedings for contempt has been made out and therefore the Court calls upon the opposite party to admit or deny the allegations made or to collect more facts so as to satisfy itself if a case for initiating proceedings for contempt was made out. Such a notice is certainly anterior to initiation. The tenor of the notice is itself suggestive of the fact that in spite of having applied its mind to the allegations and the material placed before it the Court was not satisfied of the need for initiating proceedings for contempt; it was still doesirous of ascertaining facts or collecting further material whereon to formulate such opinion. It is only when the Court has formed an opinion that a prima facie case for initiating proceedings for contempt is made out and that the respondents or the alleged contemners should be called upon to show cause why they should not be punished; then the Court can be said to have initiated proceedings for contempt. It is the result of a conscious application of the mind of the Court to the facts and the material before it. Such initiation of proceedings for contempt based on application of mind by the Court to the facts of the case and the material before it must take place within a period of one year from the date on which the contempt is alleged to have been committed failing which the jurisdiction to initiate any proceedings for contempt is lost. The heading of Section 20 is "limitation for actions for contempt". Strictly speaking, this section does not provide limitation in the sense in which the term is understood in the Limitation Act. Section 5 of the Limitation Act also does not, therefore, apply. Section 20 strikes at the jurisdiction of the Court to initiate any proceedings for contempt."
6. From the part of the judgment as extracted above, it is clear that the Hon'ble Supreme Court has held that mere receiving the contempt petition and issuing notice as to why the proceedings for contempt be not initiated, by itself does not constitutes taking cognizance of the contempt. The Hon'ble Supreme Court has held that when an opinion is formed by the Court after applying its mind on the basis of the material on record, such decision amounts to taking cognizance of the contempt and such decision shall be taken within one year from the date of the dis-obedience. Section 20 of the Contempt of Courts Act bars the Court from taking cognizance of the contempt after a period of one year. By applying these principles, the Hon'ble Supreme Court in that case has held that on the basis of the facts of that case, the contempt petition was in time. Therefore, the High Court was in error in deciding to drop the proceedings and accordingly the appeal was allowed.
7. In 1993(2) WLC (Raj) 397, the High Court of Rajasthan by following the principle laid down by Hon'ble the Supreme Court in the earlier decision, also has held that mere issuing a show cause notice calling upon the respondents why the contempt proceedings not be initiated against them, would not constitute of taking cognizance of the contempt. The Hon'ble Rajasthan High Court also has pointed-out that "institution of proceedings"
and "initiation of proceedings" are not identical, they are different. The proceeding is instituted by a litigant and "initiation of proceedings" is done by the Court. It is also pointed out that Section 5 of the Limitation Act would not apply to the proceedings of the Contempt of Courts Act. It has also upheld the validity of the Section 20 of the Contempt of Courts Act prescribing limitation of one year.
8. In an another case, the Hon'ble High Court of Rajasthan in 1985 RLR 183, has held that even the Contempt Petition is filed within one year, and notice of the petition is issued within one year, the Contempt Petition would be barred, if ultimately the matter if posted before the Court for appropriate orders after one year from the date of the order.
9. Keeping in view of the above law, as laid down by the Hon'ble Supreme Court and by the High Court of Rajasthan, we now propose to consider the facts of the present case. In the instant case, the order, dis-obedience of which is complained of, is dated 31.8.98 and the Contempt Petition is filed on 6.9.99. On 20.9.99 this Tribunal passed the order as under:
"Heard.
Issue notices to the respondents regarding admission returnable on 8.12.99.
The personal presence of the respondents in, however, dispensed with for the time being."
On the basis of this order, a show cause notice was issued to the respondent stating as under:
"You are hereby required to appear in person/or through a duly authorised advocate on 8th day of Dec. 1999 at 10.30 A.M. and on subsequent dates to which proceeding may be adjourned unless otherwise ordered by the Tribunal, and show cause why such action as is deemed fit under the Contempt of Courts Act, 1971, should not be taken against you. The personal presence of the respondent is however dispensed with for the time being.
Given under my hand and the seal this Tribunal, this 21st day of Sept., 1999.
(Emphasis supplied)."
10. There are separate rules regarding the Administrative Tribunals, called, Contempt of Court (C.A.T.) Rules, 1962. These rules are framed in the exercise of the powers conferred under Section 23 of the Contempt of Courts Act Read with Section 17 of the Administrative Tribunals Act, 1985. Rule 8 of the Contempt of Courts (C.A.T.), Rules, 1992, provide the manner of taking cognizance of the contempt under the Contempt of Courts Act, after institution of the proceedings under the Contempt of Courts Act. The said rules reads as under:
"8. Preliminary hearing and Notice: (i) The Bench if satisfied that a prima facie case has been made out, may direct issue of notice to the respondent; otherwise, it shall dismiss the petition or drop the proceedings.
(ii) The notice shall be in Form No. 1 and shall be accompanied by a copy of the petition or information and annexures if any, thereto.
(iii) Service of notice shall be effected in the manner specified in the Central Administrative Tribunal (Procedure) Rules, 1987, or in such other manner as may be directed by the Bench."
11. From the reading of the above rule, we find that a notice regarding the contempt could be issued to the respondents after the Bench is satisfied that a prima facie case has been made out. Thereafter, a notice in Form No. I shall be issued to the respondents alongwith copy of the petition. Form No. 1 appended to the rules has prescribed a Form for issuing notice as under:
"Whereas information is laid a petition is filed/motion is made by..........that you (here mention the gist of the accusation made in the information/petition/ motion)...........;
And whereas a petition has been registered for action being taken against you under the Contempt of Courts Act, 1971;
You are hereby required to appear in person or through a duly authorised advocate on ... day of ... at .... and on subsequent dates to which the proceedings are adjourned, unless otherwise ordered by the Tribunal, and show cause why such action as is deemed fit under the Contempt of Courts Act, 1971 should not be taken against you.
Given under-ony hand and the seal of this Tribunal, this.... day of... 2000. Seal."
12. From the reading of the Rule 8 of the Contempt of Courts (C. A.T.) Rules, alongwith Form I, it is clear that when the Bench decides to issue notice after being satisfied that a prima facie case has been made out, it has taken cognizance of the contempt. Under the rules, this is the mode for taking cognizance of the contempt. This Tribunal has been taking cognizance of the contempt only by following rule 8 in this manner. Therefore, it follows that once this Tribunals decides to issue notice, it has already formed an opinion as to the prima facie case and it has taken the cognizance of the contempt, notwithstanding in what form an order is passed. There is no provision regarding issuing of notice for admission though, like other cases, in the contempt petition also notices were issued regarding admission of the contempt petition. But, in fact, that was done only after being satisfied that a prima facie case is made out. On the basis of such judicial order, a notice in Form I is issued calling upon the respondents as to why such action as is deemed fit under the Contempt of Courts Act, 1971, should not be taken against them. From this it follows, that even if a notice regarding admission is issued, as is done in this case, and a notice in Form I is issued to the respondents; that means, that this Tribunal has already taken cognizance of the contempt of this Tribunal under the Contempt of Courts Act. In the instant case, vide, order dated 20.9.99, as extracted above, this Tribunal has issued notice to the respondent regarding admission and on that basis, a notice in Form I has been issued to the respondent, calling upon him why action as deemed fit under the Contempt of Court's Act, 1971, should not be taken. The word 'action' found in Form I is an action to punish a person for the alleged contempt. Therefore, it cannot be said that on the basis of the order of this Tribunal dated 20.9.99, this Tribunal has not taken cognizance of the contempt. Having regard to the notice in Form No. 1, it is clear that this Tribunal has taken cognizance of the contempt on 20.9.99. The words 'regarding admission' used in the order dated 20.9.99, was only superfluous and redundant since it is a notice in Rule 8 of the Rule for taking appropriate action after being satisfied that a prima facie case is made-out in the case. This position is already explained by this Tribunal vide order dated 18.2.98 in C.P. No. 5/96. In the said C.P. also, a similar contention was raised stating that, notice ordered to be issued regarding admission, did not constitute taking cognizance of the contempt. This Tribunal rejected the said contention. We think it appropriate to extract Paragraphs 6 and 7 of the order as under:
"6. On 8.4.1996 after hearing the learned advocate for the applicant following order was passed.
"Issue notice to the respondents of this contempt petition regarding admission returnable on 21.5.1996. The personal attendance of the respondents is, however, dispensed with for the time being."
"7. In compliance of the aforesaid order show cause notice was issued to the respondents who have filed their reply on merits. Therefore, it cannot be said that in the instant case no cognisance was taken by the Tribunal. Therefore, the argument of the learned advocate for the respondents is rejected."
Though, in that case, Rule 8 was not referred, yet this case is one instance as to how this Tribunal has been taking cognizance of the contempt in terms of the Rule 8 of the Rules. However, the learned counsel for the respondents relying upon Rule 13 of the Contempt of Courts (CAT) Rules, contended that taking cognizance of contempt arises only after this Tribunals finds that there is a 'prima facie case' in terms of Rule 13 (b) (i) of the Rules but not under Rule 8. In order to appreciate this contention, we think it appropriate to extract relevant part of Rule 13 as under:
"13. Hearing of the case and trial- Upon consideration of the reply filed by the Respondent and after hearing the parties:
(a) if the respondent has tendered an unconditional apology after admitting that he has committed the contempt, the Tribunal may proceed to pass such orders as it deems fit;
(b) if the respondent does not admit that he has committed contempt, the Tribunal may,
(i) if it is satisfied that there is a primafacie case, proceed to frame the charge in Form No. Ill (subject to modification or addition by the Tribunal at any time); or
(ii) drop the proceedings and discharge the respondent, if it is satisfied that there is no prima facie case, or that it is not expedient to proceed."
The Rule 13 also used the phrase 'prima facie case' under 13(b)(i). This phrase 'prima facie case' is for framing the charge. In other words, if upon hearing the respondents and on consideration of the order passed, if the Tribunal finds that the contemnor has primafacie committed the contempt, it may frame the charge. Therefore, the phrase 'primafacie case' used in Rule 13, is for framing the charge against the contemnor. Whereas, the phrase 'primafacie case', used in Rule 8, is for taking cognizance of the contempt. Under the Contempt of Courts (CAT) Rules, we do not find any provision for issuing a notice to the respondents unless the Tribunal takes the cognizance of the contempt, on 'prima facie case', being made out. At the cost of repetition, we may say that the phrase 'primafacie case' used under Rule 8, is for the purpose of taking cognizance of the contempt and the phrase 'primafacie case', used in Rule 13, is for framing the charge against the contemnor. This Tribunal, if it decides to frame the charge against the contemnor, it does so on prima facie case being made-out on consideration of the reply filed by the respondents and after hearing the parties. As we have already stated that we have been taking cognizance of the contempt after perusing the order, the dis-obedience of which is complained of, and therefore, issued notice under Rule 8 and in Form No. I for taking appropriate action. The notice in Form No. I is necessarily for taking action and not for any other purpose. In this view of the matter, the contention of the learned counsel for the respondents that this Tribunal can take cognizance only under Rule 13(b)(i) is hereby rejected.
13. Now, the other short question that arises for our consideration would be, whether, we could have taken cognizance of the contempt on 20.9.99 at all. In this case, the Contempt Petition itself is filed admittedly after a period of one year from the date of the order, the disobedience of which is complained of. The date of order is dated 31.8.99, whereas the Contempt Petition is filed on 7.9.99. The period of one year has already expired even before filing of the petition on 31.8.99. If that is so, our taking cognizance of the offence on 9.9.99 itself, was beyond one year as prescribed by Section 20 of the Contempt of Courts Act. Therefore, it is clear that as per the Law declared by the Hon'ble Supreme Court and also the High Court of Rajashtan, this Contempt Petition is liable to be dismissed as barred by time.
14. Moreover, it is submitted by the learned counsel for the respondents that for the implementation of Fifth Central Pay Commission Recommendations, on retirement benefits, the Government had issued orders vide O.M. dated 10.2.98 for revision of pension of all pre-1986 pensioners on the basis of notional fixation of pay as on 1.1.86. The same thing has been stated in the counter also. We think it appropriate to extract the relevant part of the reply of the respondents No. 2 to 5 as under:
"However, on implementation of Vth Central Pay Commission recommendation on retirement benefits, the Government issued orders vide O.M. dated 10.2.1998 for revision of pension of all pre-1986 pensioners on the basis of notional fixation of pay as on 1.1.1986 in the Revised Pay Scale made effective from this date for the post held by the pensioners at the time of his/ her retirement, by adopting the same formula as for the serving employees as on 1.1.86. The Pay Scale introduced w.e.f. 1.1.86 included D.A. up to AICPI 608 besides interim relief and fitment weightage of 20% of basic pay."
15. In the reply of the respondent No. 1 it has been specifically stated that they have already informed the applicant of this position. The fact that the applicant has been made known of the proceedings dated 10.2.98, is not denied by the applicant. From this, it follows that the Government of India, has already provided scheme regarding the implementation of the Fifth Central Pay Commission providing certain benefits to the pensioners. If that is so, the order of this Tribunal dated 31.8.98 directing the respondents to devise a mechanism so as to compensate the pensioners who retired between 31.3.85 and 31.12.85 stands complied with. This Tribunal has passed the said order without noticing the order dated 10.2.98 of the Government of India. It appears that the said order was not brought to the notice of this Tribunal while passing the order dated 31.8.98. If the petitioners are aggrieved by the proceedings of the Government of India dated 10.2.98, it is always open to them to challenge the same before the appropriate forum, in accordance with law.
16. For the above reasons, we pass the order as under:
The Contempt Petition is dismissed. However, it is open to the petitioner to challenge the order of the Government of India dated 10.2.98, if he feels aggrieved, as per law.
17. The Notice is discharged.