Madras High Court
M.Rajakumar vs The Registrar on 5 April, 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 5.4.2010 THE HONOURABLE MR.JUSTICE ELIPE DHARMARAO AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL Writ Petition No.36715 of 2007 and M.P.No.1 of 2007 M.Rajakumar ... Petitioner Vs. 1.The Registrar, Central Administrative Tribunal, Chennai Bench, Chennai-600104. 2.Union of India, represented by Deputy Chief Engineer, Gauge Conversion, Southern Railway, Madurai-16. 3.Mr.R.Rajamani, Chief Commissioner of Railway Safety (Retd.) and Enquiry Officer, Headquarters Office, Vigilance Branch, Southern Railway, Chennai-600003. 4.Mr.Rajendra Prasad The Chief Engineer (Constructions), Southern Railway, Egmore, Chennai-600008. ... Respondents * * * Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, after calling for the records connected with the impugned order passed by the 1st respondent in the contempt proceedings dated 23.10.2007 in C.A.No.21 of 2007 in O.A.No.883 of 2006 and quash the same and consequently direct the respondents to provide a copy of the original documents after permitting to perusal of the same and then proceed with the enquiry after giving reasonable opportunity to the petitioner. * * * For petitioner : Mr.N.G.R.Prasad for Mr.R.Rengaramanujam For R2 to R.4 : Mr.V.G.Suresh Kumar * * * O R D E R
ELIPE DHARMARAO, J.
The writ petitioner, while was working as Section Engineer/Works under the control of the Deputy Chief Engineer/Gauge Conversion, Triuchirapalli was the Inspector of works in charge of gauge conversion works during the period 1995-98 and he was in charge of the earth work for forming bank/cutting for widening of the existing Meter Gauge conversion between Villupuram-Ariyalur under the contract agreement No.45/CN/95, dated 3.5.1995 in the Chennai Beach-Tiruchirapalli Gauge Conversion Project. While so, on certain alleged irregularities of manipulating and recasting the initial level books and failure to take corrective steps/action, even after knowing that the initial ground levels were tampered and is at variance with the true initial ground levels, departmental proceedings were initiated against the petitioner under the Railway Servants (Discipline and Appeal) Rules, 1968 on 2.6.2004.
2. After the issue of the charge sheet, the petitioner has requested the Disciplinary Authority to permit him to inspect the original documents kept under the custody of vigilance department, based on which the charges were proposed to be sustained. While according to the respondents/Administration, the request of the petitioner was considered and the Deputy Chief Vigilance Officer/Engineer also directed him to peruse the relied upon documents as per Annexures III and IV of the charge memorandum and the petitioner also perused all the relied upon documents on 7.9.2004, on the part of the petitioner, it has been contended that he has addressed the Enquiry Officer by his letter dated 6.3.2006, about his predicament in attending the enquiry without perusing the original documents and the non-supply of relevant documents, but, however, the enquiry officer had advised him to attend the enquiry by 17.4.2006 and the documents had neither been furnished to him nor he had been permitted to peruse the documents. On such grounds, the petitioner had filed O.A.No.883 of 2006 before the first respondent/Tribunal, praying for a direction to supply the documents and permit him to peruse the original documents mentioned in the charge memo. dated 2.6.2004 and then proceed with the enquiry. The Tribunal, by the order dated 4.1.2007, has directed the respondents to furnish the copies of the items 1 and 4 of the enclosure III and permit the applicant to peruse the rest of the documents before proceedings further to the inquiry.
3. Thereupon, complaining that the said order of the Tribunal has been wilfully disobeyed by the respondents, the petitioner has filed Contempt Application No.21 of 2007 before the Tribunal. Detailed counter affidavit has been filed by the respondents before the Tribunal and the Tribunal after considering all the facts and circumstances has closed the said Contempt Application. In this process, the Tribunal has recorded its findings as follows:
"3. We have perused the pleadings of the application and also the reply statement. It is no doubt true that an enquiry has been initiated against the applicant by relying on certain documents. If the originals are not available, it is open for the respondents to make available the copies of such documents and proceed with the enquiry. Therefore, merely because of the reason that the originals are not produced, it does not ipso facto amounts to contempt. Therefore, we see no sufficient grounds to proceed with the matter. Accordingly, the contempt petition is closed. However, we permit the respondents as well as the applicant to produce the documents whatever required and complete the enquiry proceedings within a reasonable period of three months."
Aggrieved against this order, the petitioner has come forward to file this writ petition.
4. We have heard Mr.N.G.R.Prasad, learned counsel appearing for the petitioner and Mr.V.G.Suresh Kumar, learned counsel appearing for the respondents 2 to 4.
5. When this writ petition was taken up for consideration, on the part of the learned standing counsel appearing for the respondents 2 to 4, a strong objection has been taken regarding the very maintainability of the writ petition. He has argued that the contempt petition filed by the petitioner having been closed by the Tribunal, no remedy will lie under Article 226 of the Constitution of India to the petitioner and would pray to dismiss this writ petition. In support of his arguments, the learned counsel would rely on an unreported judgment of a Division Bench of this Court in UNION OF INDIA vs. A.GANESAN [W.P.No.23207 of 2003, dated 18.3.2008] and the decision of the Honourable Apex Court in MIDNAPORE PEOPLES' COOP.BANK LTD. vs. CHUNILAL NANDA [(2006) 5 SCC 399], which we would deal with in the due course.
6. On the other hand, Mr.N.G.R.Prasad, the learned counsel appearing for the petitioner would submit that even though the order passed by the Tribunal closing the contempt of court application is not appealable under Section 19 of the Contempt of Courts Act, since the said order passed by the Tribunal has travelled beyond the scope of the proceedings in issuing a direction to the respondents, this writ petition filed under Article 226 of the Constitution of India is very well maintainable. The learned counsel for the petitioner would further argue that under the name of furnishing the copies of the relied upon documents, the respondents have supplied the photostat copies and the petitioner was not permitted to peruse the originals and such furnishing of the photostat copies will not amount to complying with the direction of the Tribunal and therefore, the Tribunal ought to have allowed the contempt application and on such arguments, the learned counsel for the petitioner would pray to allow this writ petition.
7. In support of his arguments, the learned counsel appearing for the petitioner would rely on a judgment of the Honourable Apex Court in MAKHAN SINGH vs. NARAINPURA COOPERATIVE AGRICULTURAL SERVICE SOCIETY LTD. AND ANOTHER [1987-II-LLN 404], wherein the Honourable Apex Court, while dealing with a case of unauthorised absentee of a Society, whose services were terminated without conducting any domestic enquiry, has held that 'evidence let in support of embezzlement is very scrappy as only photostat copies of entries in pass books and not originals were produced and that the approach of the Labour Court was highly casual and superficial'. On such observations, the Supreme Court directed the Society to reinstate the appellant therein with all consequential benefits including full back-wages.
8. The learned counsel appearing for the petitioner would rely on a Division Bench judgment of this Court in E.SENTHILKUMAR AND OTHERS vs. THE REGISTRAR OF COOPERATIVE SOCIETIES AND ANOTHER [1996-III-LLJ (SUPP.) 492], wherein it has been held as follows:
"19. During the pendency of Contempt of Court proceedings, the respondents have fixed the salary at Rs.1,750; Rs.1,583; Rs.1,534; Rs.1,102 and Rs.1,108 to the five of the petitioners respectively. Therefore, the learned single Judge was right in observing that the fixation of the salary pending disposal of the writ petition needs to be gone into. However, while disposing of the said petition, it has been observed that if the petitioners are willing to wok as per the Office Order No.1/93, date November 10, 1993, they should be paid the above salary, pending adjudication by the competent authority. It is also further observed by the learned single Judge that the petitioners are also to give letters or undertaking to the Officer, as per the order dated November 10,1993 and to receive the salary. These directions squarely fall outside the scope of the Contempt of Court proceedings. In the proceedings, what was required to be seen as to whether the order dated September 23, 1993 was wilfully violated. A Division Bench of this Court, while considering such a situation in R.Rajagopal v. Chellamuthu, 1994 1 M.L.J. 78 has held that even though the order dismissing the Contempt of Court application is not appealable under Se.19 of the Contempt of Courts Act,nevertheless, such an order to the extent it travels beyond the scope of the proceedings and affects the rights of the parties. Letters Patent Appeal under clause 15 of the Letters Patent can be entertained to the extent the order travels beyond the scope of the proceedings and affects the rights of the parties."
9. This judgment, as could be seen, is relating to filing of Letters Patent, which is quite different and distinct from the writ petition. Therefore, the above ratio laid down by the Division Bench of this Court has no application to the facts of the case.
10. In the case on hand, the petitioner has invoked the jurisdiction of the Tribunal under Section 17 of the Administrative Tribunals Act and was successful in getting a direction to the respondents to furnish the copies of the Items1 and 4 of the Enclosure 3 and to permit the applicant to peruse the rest of the documents. Subsequently, complaining that the respondents have wilfully violated the above said order of the Tribunal, he has filed a contempt application before the Tribunal. The Tribunal having found no contempt, has closed the contempt application. Therefore, in these circumstances, the legal question that would surface for consideration and decision is as to whether this writ petition filed under Article 226 of the Constitution of India, as against the order of closure of contempt application by the Tribunal is maintainable?
11. Section 17 of the Administrative Tribunals Act confers power on the Administrative Tribunal to punish for contempt. For better appreciation, we extract hereunder the said Section:
"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."
12. Section 19 of the Contempt of Courts Act deals with Contempt Appeals, which reads as follows:
"19. Appeals.(1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt
(a) where the order or decision is that of a single judge, to a Bench of not less than two Judges of the Court ;
(b) where the order or decision is that of a Bench, to the Supreme Court :
Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court. (2) Pending any appeal, the appellate Court may order that
(a) the execution of the punishment or order appealed against be suspended;
(b) if the appellant is in confinement, he be released on bail ; and
(c) the appeal be heard notwithstanding that the appellant has not purged his contempt. (3) Where any person aggrieved by any order against which an appeal may be filed satisfies the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by sub-section (2). (4) An appeal under sub-section (1) shall be filed
(a) in the case of an appeal to a Bench of the High Court, within thirty days ;
(b) in the case of an appeal to the Supreme Court, within sixty days, from the date of the order appealed against.
13. A conjoint reading of both these Sections would make it clear that the Tribunal has been vested with the powers, jurisdiction and authority in respect of contempt of itself as a High Court and an appeal, as of right, in matters wherein an order imposing punishment for contempt has been passed in contempt applications, lies to the Supreme Court, if the decision is by a Bench.
14. The Honourable Apex in the judgment in MIDNAPORE PEOPLES' COOP.BANK LTD. vs. CHUNILAL NANDA [(2006) 5 SCC 399], relied upon by the learned counsel for the respondents, has laid down the principles regarding the appeals against orders in contempt proceedings as follows:
I.An appeal under Section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt.
II.Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19. In special circumstances, they may be open to challenge under Article 136 of the Constitution.
III.In a proceeding for contempt, the High Court can decide whether any contempt of court was committed,and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties.
IV.Any direction issued or decision jade by the High Court on the merits of a dispute between the parties, will not be in the exercise of "jurisdiction to punish for contempt" and, therefore, not appealable under Section 19. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under Section 19 can also encompass the incidental or inextricably connected directions.
V.If the High Court decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a Single Judge and there was a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution (in other cases)." (emphasis by us)
15. A contemporary Division Bench of this Court in an unreported order dated 18.3.2008, passed in W.P.No.23207 of 2003, cited on the part of the learned standing counsel for the respondents, it has been held that:
".... In other words, the extent of jurisdiction exercisable under Article 226/227 of the Constitution will have to be limited to the extent of examining the correctness of the decisions passed in the original proceedings and cannot be extended to proceedings and orders passed in exercise of the contempt jurisdiction vested with it, in respect of which separate avenue of Appeal has been provided under Section 17 of the Administrative Tribunals Act read along with Section 19 of the Contempt of Courts Act."
16. The Tribunal, having been vested with the same powers as that of High Court as per Section 17 of the Administrative Tribunals Act insofar as the contempt jurisdiction is concerned and in the case on hand, the contempt proceedings are closed by the impugned order by the Tribunal having found no contempt, this writ petition filed as if an appeal or review against such an order passed by the Tribunal under Article 226 of the Constitution of India is not at all maintainable and if at all, it he is so advised, the petitioner could only seek the relief before the Honourable Apex Court under Article 136 of the Constitution of India, as has been held by the Honourable Apex Court in Midnapore Peoples' Cooperation Bank Ltd. case (supra). The contention of the learned counsel for the petitioner that since certain directions were issued by the Tribunal, travelling beyond the scope of the contempt proceedings in the impugned order, this writ petition is very well maintainable has no legal legs to stand before us, in view of the specific directions issued by the Honourable Apex Court in the above referred judgment reported in Midnapore Peoples case (supra). Even otherwise, the latter part of the direction issued by the Tribunal - permitting the respondents and also the petitioner to produce the documents whatever required and complete the enquiry proceedings within a reasonable period of three months - cannot be said to have 'affected the rights of the parties', so as to maintain a petition of this nature against such an order 'affecting the rights of the parties', under the name that it had travelled beyond the scope of the contempt proceedings since, in our considered view, neither the rights of the petitioner nor the respondents have been affected so as to call them as 'aggrieved parties'. Since this writ petition is held to be not maintainable, the other aspects of the case like the one argued on the part of the petitioner that furnishing of xerox copies will not amount to complying with the directions of the Tribunal etc. need not be gone into by us.
For all the above discussions, this writ petition is held to be not maintainable and this writ petition, is accordingly, dismissed. The other factual aspects urged by both the parties are left open to be decided by appropriate forum. No costs. Consequently, M.P.No.1 of 2007 is also dismissed.
Rao To
1.The Registrar, Central Administrative Tribunal, Chennai Bench, Chennai-600104.
2.Union of India, represented by Deputy Chief Engineer, Gauge Conversion, Southern Railway, Madurai 16