Central Administrative Tribunal - Jodhpur
Sanjay Kumar Vyas S/O Shri Makhan Lal vs Shri Satish Kumar Sharma on 28 July, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Contempt Petition No. 38/2011 in OA No. 195/2008
Reserved on :18.07.2016
Jodhpur, this the 28th day of July, 2016
CORAM
Honble Dr. Murtaza Ali, Judicial Member
Honble Ms Praveen Mahajan, Admn. Member
Sanjay Kumar Vyas S/o Shri Makhan Lal, aged about 36 years, resident of Shridungargarh Adsarbas, Somania Ka Kua, Distt. Bikaner, last employed as Parcel Porter at Shridungargarh, North Western Railway.
.Petitioner
By Advocate: Mr J.K. Mishra.
Versus
Shri Satish Kumar Sharma, Divisional Personnel Officer, North-Western Railway, Bikaner
..Respondent
By Advocate : Mr Kamal Dave & Govind Suthar proxy counsel
ORDER
Per Dr Murtaza Ali This second contempt petition has been filed by the applicant of OA No. 195/2008 for the alleged non-compliance of order dated 09.08.2008. By the said order the respondents were directed to dispose of the representation of applicant subject to terms and observation contained in order dated 19.09.2007 passed in OA No. 238, 239 & 240 of 2007.
2. It appears that the applicant had earlier filed Contempt Petition No. 38/2009 for compliance of same order dated 09.08.2008 and the said CP was closed and notices were discharged vide order dated 02.05.2011. We feel that this 2nd CP has not actually been filed for the alleged disobedience of order dated 08.09.2009 passed in OA No. 195/2008 but for seeking compliance of order dated 02.05.2011 passed in CP No. 38/2009 by which the contempt court directed the railway administration to pass consequential absorption orders within two months in the light of verification made by the Assistant Labour Commissioner (ALC), Lucknow.
2. A reply has been filed on behalf of respondents and it has been contended that the contempt court cannot travel beyond the order passed in the OA and the order passed by the contempt court on 02.05.2011 is non-est. It has also been contended that the respondents have already disposed of the representation of applicant vide order dated 03/05.10.2011 (Annex. R/1) and thus, has complied with the order dated 09.08.2008 passed in OA No. 195/2008. It has further been argued that if the applicant was aggrieved by the said order of respondents, he could file fresh OA for quashing the said order. Ld. counsel for the respondents relied upon the following judgments :
(i) J.S. Parihar v. Ganpat Duggar & Ors reported in 1997 0 AIR (SC) 113;
(ii) Director, Elementary Education & Ors v. Pratap Kumar Nayak reported in 1997 75 FLR (SC) 662;
(iii) Lalit Mathur v. L. Maheswara Rao reported in (2000) 10 SCC 285;
(iv) Director of Education, Uttaranchal v. Ved Prakash Joshi reported in 2005 0 AIR(SC) 3200.
3. Ld. counsel for the applicant argued that till the order dated 02.05.2011 was passed in CP No. 38/2009, the respondent had not disposed of his representation. The representation of applicant has been disposed of on 03.10.2011 without considering the judgments mentioned in the order.
4. In the case of J.S. Parihar (supra) there was a controversy relating to the preparation of seniority list of engineers in Rajasthan Civil Engineering Services (Public Health Branch). The Division Bench of the High Court declared the seniority list, prepared with retrospective effect, unconstitutional and directed preparation of seniority list afresh to determine the inter se seniority on that basis and to grant promotion to the appellants within the specified time. When the seniority list came to be prepared, the contempt proceedings were initiated and the Learned Single Judge on consideration of the merits in the seniority held that the respondents had not wilfully disobeyed the orders of the Court. While dismissing the appeal filed against the order of Division Bench of the High Court, the Honble Supreme Court has held that once there is an order passed by the Government on the basis of 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, which may or may not 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 wilful violation of the order. After re-exercising judicial review in contempt proceedings, afresh direction by the Ld. Single Judge cannot be given to re-draw the seniority list.
5. In the case of Pratap Kumar Nayak (supra), the Tribunal had given direction to the department to consider his case according to rules. The case of applicant was considered and he was not found eligible under the rules. The applicant filed contempt petition in the Tribunal stating that the department has deliberately violated the orders passed by the Tribunal. In the contempt proceedings, the Tribunal passed the order as under:
In the circumstances, the order dated 11.11.1992 be implemented within 15 days from the date of receipt of a copy of this order. The applicant be given appointment like his juniors who have been given such appointment. If none of his juniors have been given appointment, then the Respondents would take action as per the prevailing instructions by giving him notional appointment as Sikhyakarmi in accordance with the Circular dated 24.09.1992 and after determining his deemed date of appointment as Sikhyakarmi, give appointment to him as regular primary school teacher, as is being done in cases of Sikhyakarmis. The Honble Supreme Court while allowing the appeal of department, set aside the order of the Tribunal and held as under :
4. From the order, it is clear that the Tribunal has gone wrong in giving directions issued in the main order. Since direction was issued to consider his case according to rules, necessarily, the appellants were required to consider the claim of the respondent in accordance with the guidelines. Obviously, since the respondent had not fulfilled the qualifications prescribed in the guidelines, he could not be appointed. Accordingly, his case was rejected. The impugned direction is contrary to the direction issued on the earlier occasion and the rules. Therefore, in a review petition, the Tribunal could not have gone behind the main order and issued fresh directions.
6. In the case of Lalit Mathur (Supra), the petitioner had filed a writ petition in the High Court seeking relief, inter-alia, that his representation for absorption in alternative Government service may be directed to be considered by the State Government. In the said writ petition the petitioner was an employee of A.P. State Cooperative Rice Federation which was winded up and he ceased to be an employee of that Federation. The said writ petition was allowed and a direction was issued to the State Government to consider and dispose of his representation. Pursuant to that direction, the State Government considered the representation and rejected the claim of petitioners for absorption in Government service. Instead of challenging the order by which his representation was rejected, he filed a contempt petition. The contempt court while considering various orders passed in different writ petitions, directed the State Governmment to absorb the petitioner in any suitable post in any Government department or public undertaking within 03 months from the date of receipt of copy of this order. While quashing the order passed by the contempt court, Honble Supreme Court has held as under :
(3) The above will show that the High Court has directed the State Government to absorb the respondent against a suitable post either in a government department or in any public sector undertaking. This order, in our opinion, is wholly without jurisdiction and could not have been made in proceedings under the Contempt of Courts Act or under Article 215 of the Constitution.
(4) The High Court in the writ petition had issued a direction for the consideration of the respondents 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 lie as the order has already been complied with by the State Government which had considered the representation and rejected it on merits.
7. In the case of Ved Prakash Joshi (supra), the Ld. Single Judge of the High Court while dealing with the application filed under Contempt of Courts Act, 1971 had given certain directions which were challenged before the Honble Supreme Court. While allowing the appeal Honble Supreme Court has held as under :
The court exercising contempt jurisdiction cannot take upon itself power to decide the original proceedings in a manner not dealt with by the court passing the judgment or order. Right or wrong the order has to be obeyed. Flouting an order of the court would render the party liable for contempt. While dealing with an application for contempt the court cannot traverse beyond the order, non-compliance of which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or otherwise of the order of given additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible. In that view of the matter, the order of the High Court is set aside.
8. We have gone through the judgments cited on behalf of respondents. We are of the considered view that the contempt court cannot travel beyond the order passed in the OA and it could not have gone behind the main order and issued fresh directions. In the instant case, the respondents were directed only to dispose of the representation of the applicant and if the representation was not decided by the respondents till filing of C.P. for alleged non-compliance of order passed in the OA, the Tribunal could direct the respondents to comply the order passed in the OA for disposing of representation or it could frame charges against the respondents under Contempt of Courts Act for wilful disobedience of the order passed in the OA. But the Tribunal could not go behind the main order or issued fresh direction. It is also observed that the representation of the applicant has finally been considered and disposed of/rejected vide order dated 02.05.2011. Thus, in our considered view, the respondents have complied with the order dated 09.08.2008 passed in OA No. 195/2008 by disposing the representation of applicant vide order dated 02.05.2011. If the applicant had any grievance against the order passed on his representation he had an opportunity to seek redressal in an appropriate forum since a fresh cause of action arose after disposal of his representation.
9. Accordingly, we find that the respondents have already disposed of the representation of the applicant vide order dated 02.05.2011. Thus, the Contempt Petition is dismissed and notices are discharged. If the applicant is aggrieved by the order dated 02.05.2011, he may file fresh OA for quashing the order passed by the respondents. As sufficient time has been passed in the proceedings before this Tribunal, we provide that the OA may be treated within time if it is preferred by the applicant within a period of one month from the date of this order.
[Praveen Mahajan] [Dr Murtaza Ali]
Administrative Member Judicial Member
Ss/-
1