Central Administrative Tribunal - Delhi
Ram Prasad Gupta vs Mr.Avinash Dikshit on 11 October, 2013
Central Administrative Tribunal
Principal Bench, New Delhi
C.P.No.430/2012
O.A. No. 1799/2010
M.A.No.3232/2012
Order reserved on 14 02. 2013
Order pronounced on 11.10.2013
Honble Mr. Sudhir Kumar, Member (A)
Honble Mr. V. Ajay Kumar, Member (J)
Ram Prasad Gupta,
S/o Late Shri Daulat Ram Gupta
House No.8/5, Shakti Nagar,
Gwalior Road, Agra (UP). Petitioner
(By Advocates: Shri E.J.Verghese)
Versus
1. Mr.Avinash Dikshit
Commissioner, Kendriya Vidhyalay Sangathan
Institutional Area, Shaheed Jeet Singh Marg,
New Delhi-110016.
2. Mr.A.K.Bajpayee
Deputy Commissioner,
Kendriya Vidhyalay Sangathan
Lucknow Region, Sector J Aliganj,
Lucknow (UP). Respondents.
(By Advocate: Shri S.Rajappa)
ORDER
By Mr.Sudhir Kumar, Member (A):
This Contempt Petition has been filed alleging contumacious act on the part of the respondents having willful disobeyed the orders of this Tribunal dated 18.11.2010 in OA 1799/2010. The petitioner has submitted that he had filed the above-stated OA before this Tribunal against the order of rejection of his request to count the past service rendered by him under the Government of Madhya Pradesh and revision of his pension accordingly. The OA was allowed on 18.11.2010, and the final order passed to this effect was as follows:
15. Resultantly, OA is allowed. Impugned order is set aside. Respondents are directed to count the erstwhile service rendered by the applicant with Madhya Pradesh Government from 15.12.1955 to 28.8.1972 and re-calculate the pensionary benefits with arrears from the date the applicant has retired from service on superannuation. This shall be done within a period of two months from the date of receipt of a copy of this order. No costs.
2. When the respondents failed to obey & implement the order of this Tribunal, the petitioner had filed C.P.No.407/2011, which came to be considered by the Bench, chaired by the then Honble Chairman of the Tribunal, and the following orders were passed on 22.09.2011:
Mr. S. Rajappa, learned counsel for the respondents states that the needful shall be done within four weeks from today.
2. In view of the statement made by learned counsel for the respondents, which stands recorded, present Contempt Petition is closed.
3. The petitioner has submitted that the respondents still continued to disobey the orders of this Tribunal, and refused to comply with the orders within four weeks from 22.09.2011, as per the commitment given by the learned counsel for the respondents at the time of disposal of the Contempt Petition. The petitioner has further submitted that the respondents are not complying with the order willfully and deliberately, even after it had attained finality, as they have neither filed any Review Application, nor challenged the judgment of the OA concerned before the Honble High Court of Delhi and the Honble Supreme Court.
4. The petitioner had earlier filed an MA No.162/2012, seeking revival of his first Contempt Petition No.407/2011. When that MA came before an appropriate Bench on 17.04.2012, on the submission made by his counsel, the following orders were passed, and the MA was dismissed as withdrawn:MA No.162/2012
Learned counsel for applicant submits that he wants to withdraw this MA at this stage with liberty reserved to him to file subsequent MA for the same cause of action.
In view of what has been stated above, the applicant is permitted to withdraw this MA. The MA stands dismissed as withdrawn.
5. Now, the petitioner has filed this second Contempt Petition, submitting that he still has a legal remedy to approach this Tribunal, in view of the orders passed in the O.A. No. 1799/2010, as well as the orders passed in the Contempt Petition No.407/2011, both of which are still operative, and have not been set aside by any Court of law. It was further submitted that the respondents have deliberately and willfully utterly disregarded the orders of this Tribunal, and, therefore, the petitioner has prayed for initiation of contempt proceedings against the respondents for their having committed contempt of court, and for passing such further orders, as this Tribunal may deem fit.
6. Once the order of this Tribunal had remained unimplemented, even thereafter, the petitioner had again filed M.A. No. 2792/2012, & M.A. No. 2793/2012, and both MAs were not found to be maintainable, and were rejected by a detailed order on 04.10.2012.
7. The respondents had, on the other hand, filed M.A. No. 3232/2012, seeking further extension of time to comply with the orders dated 04.10.2012, and had at the same time filed a Writ Petition before the Honble High Court of Delhi. On 05.12.2012, it was submitted by the learned counsel for the respondents that the Commissioner, K.V.S., had, however, approved the compliance of the orders of the Tribunal, without prejudice to the outcome of their writ appeal before the Honble High Court of Delhi, and he had also undertaken to prepare a cheque drawn in favour of the petitioner within a week.
8. The respondents have in the meanwhile released the DCRG and Service Gratuity, as admissible to the applicant, and have counted his length of service with the respondents as 24 years, 10 months and 8 days, along with the past service of 16 years, 8 months and 13 days, to arrive at the total qualifying service of 41 years, 6 months and 21 days, which was restricted to maximum service of 33 years. As per their orders passed on 12.12.2012, and the cheque issued thereafter on 13.12.2012, a photo-copy of which was produced before the Court by the learned counsel for the respondents, the orders of the respondents dated 7/10.12.2012 already indicate the basis on which the case of the applicant has been settled for pension, admissible to him by stating as follows:
F.No.26065/15/2012/KVS(HQ)(Estt.II) Dated:7/10.12.2012 OFFICE ORDER Approval of the Commissioner, Kendriya Vidyalaya Sangathan is hereby conveyed to count the past services rendered as Lower Grade Teacher in Govt. Inter College, Shahajanabad, Bhopal under Madhya Pradesh State Govt. from 15.12.1955 to 28.8.1972 in respect of Shri Ram Prasad Gupta, TGT(S.St.), Kendriya Vidyalaya, No.1, Agra retired from the services of KVS on superannuation on 31.7.1997 for pensionary benefits only in the Kendriya Vidyalaya Sangathan in compliance with the Honble CAT, Principal Bench, New Delhi order dated 8.10.2012 & 18.11.2012 in OA No.1799/10 and without prejudice to the rights of KVS.
Pro-rata pension liabilities are yet to be remitted by he State Govt. of Maddhya Pradesh to Kendriya Vidyalaya Sangathan for the period of services he rendered as Lower Grade Teacher in Govt. Inter College, Shahajanabad, Bhopal from 15.12.1955 to 28.8.1972.
9. In terms of the above Office Order, the respondents have since informed the petitioner/applicant by stating as follows:
File No.18(2544)2444/97/KVS/P&I 939 Dated: 13-12-12 Sh. R.P. Gupta, A/5, Shakti Nagar, Gwalior Road, Agra (U.P.).
Subject: Sanction to revised Gratuity Sir/Madam,
In supersession of this office sanction of even number dated 04/10/2005, I am to forward herewith a copy of the revised sanction of DCRG amount of Rs.1,81,789.00 (Rupees one lakh eighty one thousand seven hundred eighty nine only).
After deduction therefrom an amount of DCRG amount of Rs.1,37,719.00 already paid to you, demand draft/cheque for Rs.34508.00 (i.e Rs.44070.00- Rs.9502.00) in your favour on account of revised DCRG is being sent separately, after withholding the tentative amount of pro-rata pension amounting to Rs.9502.00 in terms office order No.260-65/15/2012-KV/HQ/Estt-II) dated 7/12/2012 subject to receipt of pro-rata pension liabilities to be remitted by the M.P. Govt. for his services rendered in Govt. inter college, Shahajanabad, Bhopal from 15/12/1955 to 28/8/1972.
This order have been issued in compliance with the Honble CAT Principal Bench, New Delhi orders dated 08/10/2012 and 18/11/2010 against CP No.430/2012 in OA-1799/10 in terms of office order No.260-65/15/2012-KV/HQ/Estt.-II) dated 7/12/2012.
The receipt of the same may please be acknowledge.
10. Also, in their compliance affidavit filed by the respondents on 13.02.2013, the Additional Commissioner (Administration) has prayed that the Contempt Petition may be dismissed, submitting in Paras-3 to 5 of the compliance affidavit as follows,:-
3. That I submit, the entire order passed by this Honble Tribunal has been complied with in as much as way back on 12.12.12, the Finance Officer of KVS has issued sanction order for counting of past service of the petitioner and has accordingly issued orders to the State Bank of India, Main branch, Parliament Street, New Delhi for further action/instructions to their branch concerned to pay up all the amounts due to the petitioner as per revised Pension Payment Order issued by KVS by counting the past service rendered by the applicant with the M.P. State Government. Furthermore, an amount of Rs.34,568/- by way of a cheque has already been released to the petitioner. Thus, from the side of KVS all steps towards compliance of this Honble Tribunals orders have been taken and orders passed in favour of the petitioner. It is now for the petitioner to approach the concerned branch of the State Bank of India to sort out release of arrears.
4. In so far as withholding of Rs.9502/- is concerned, it is submitted that nowhere this Honble Tribunal has held that the same has to be released to the petitioner. On the contrary, this Honble Tribunal has only directed KVS to count the erstwhile service rendered by the applicant with Madhya Pradesh Government from 15.12.1955 to 28.8.1972 and recalculate the pensionary benefits with arrears from the date the applicant has retired from service on superannuation which order has been complied with.
5. In view of the foregoing, it is, therefore, prayed that this Honble Tribunal may be pleased to dismiss the contempt petition by discharging the notice of contempt issued.
11. The Government of Madhya Pradesh was never a party before this Tribunal, and no orders were passed by the Tribunal for issuing any directions whatsoever to the State Government of Madhya Pradesh while deciding the O.A. No. 1799/2010 on 18.11.2010. As far as the respondents of the O.A. No. 1799/2010 are concerned, it was pleaded that they are not in contempt of this Tribunal, and the assurance given by the learned counsel for the respondents on 22.09.2011, at the time of disposal of the CP No.407/2011, has since been fully satisfied, in proof of which, the letter dated 07/10.12.2012 and order dated 13.12.2012, as reproduced above, have been issued, and the compliance affidavit has been filed.
12. The matter relating to the contempt of court, and the powers of the Tribunal, has been examined in detail by the Tribunal in its Full Bench judgment of the Tribunal at Allahabad, in Satyapal Singh & Ors. vs. I.M.G. Khan, Director General & ors. 2013 (3) S.L.J (CAT) 1, in which Justice Alok Kumar Singh, Member (J), recorded the findings as follows:
10. It is needless to say that recalling of final order passed on merits in contempt matters would amount to reviewing the earlier decision/order which had been rightly or wrongly passed on merits. The law is settled on the point that the recall/ review or appeal are the statutory remedies and unless those are specifically provided/conferred under any Act/ Rules, no such recall application is maintainable in contempt matters, particularly when the order has been passed on merits finally deciding the contempt petition. In this regard, certain propositions of law laid down by Honble Apex Court as also by Honble High Courts have also come to our notice which are being discussed herein below:-
11. In the case of Harbhajan Singh Vs. Karma Singh and others reported in AIR 1966 Supreme Court page 641, while dealing with East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, it was found that no such express power of review has been conferred on the State Govt. with regard to an order made u/s 42 of the act. In the absence of any such express power, it was decided by Honble Supreme Court that the Director Consolidation of Holdings cannot review its previous order of dismissing the application of the petitioner u/s 42 of the Act. In this case, reference was also made to the case of Anantharaju Shetty Vs. Appu Hegade reported in AIR 1919 Madras 244, in which it was observed that it is settled law that a case is not open to appeal unless the statute gives such a right. The power of review must also be given by the statute. Prima facie a party who has obtained a decision is entitled to keep it unassailed unless legislature had indicated the mode by which it can be set aside. A review is practically hearing of an appeal by the same officer who decided the case. There is at least as good reason for saying that such power should not be exercised unless the statute gives it as for saying that another Tribunal should not hear an appeal from the Trial court unless such a power is given to it by statute.
12. Similarly, in the case of Patel Nareshi Thakershi and others Vs. Shri Pradyuman Singhji Arjunsinghji reported in (1971) 3 SCC 844- the Honble Apex Court held that it is well settled that power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. In the case of Major Chandra Bhan Singh Vs. Latafat Ullah Khan and Ors. AIR 1978 SUPREME COURT 1814 also the Honble Apex Court has observed that ........It is well settled that review is a creature of statute and cannot be entertained in the absence of a provision therefore.
13. Similarly in the full bench decision of Honble Allahabad High Court in the case of Shivraji (dead) through LRs and others Vs. Dy. Director of Consolidation and others reported in 1997 AWC (Supp.) 454 [ 1997 RD 562] (comprising Honble Mr. Justice D.P. Mohapatra, Chief Justice, Honble Mr. Justice R.A. Sharma and Honble Mr. Justice R.R.K. Trivedi, JJ) also a question formulated by the Division Bench was referred to the full bench as to whether it is open for the Consolidation authorities to review/ recall their final order exercising inherent powers even though the U.P. Consolidation of Holdings Act, 1953 does not vest them any review jurisdiction. The full bench of the Honble High Court, after considering various decisions rendered by the Apex Court as well as single judge and Division Bench cases of own High Court answered the aforesaid question in negative. In respect of various single and Division Bench judgments of the Honble High Court which were cited before the above full bench, it was observed that none of them support the proposition of law that any Tribunal exercising judicial or quasi judicial power which is not vested with the power of review under the statute expressly or by necessary implication has an inherent power of review of its previous order in any circumstances. It was further observed by the above Full bench that those decisions only lay down the proposition that a Tribunal exercising judicial or quasi judicial power has the inherent power to correct a clerical mistake or arithmetical error in its order and has power to review an order which has been obtained by practicing fraud on the court provided that injustice has been perpetrated on a party by such order. But these decisions should not be construed as laying down any proposition of law contrary to the well settled principle of law that any order delivered and signed by a judicial or quasi judicial authority attains finality subject to appeal or revision as provided under the Act and if the authority passing the order is not specifically vested with power of review under the statute, it cannot reopen the proceeding and review / revise its previous order.
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 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.
17. It would not be out of context to mention here that once a final order has been passed and compliance has been made in furtherance of the order passed in an O.A., the correctness of such compliance cannot be examined under the contempt jurisdiction, though according to a petitioner, such an order or exercise may be legally or factually incorrect. In the case of B.D. Tiwari Vs.Alok Tandon, District Magistrate, Allahabad reported in 2004 (1) AWC 543- also it was held that it is well settled that the contempt court can neither sit in appeal nor examine the correctness of a resultant order. Similarly in the case of Lalit Mathur Vs. L. Maheshwara Rao reported in (2000) 10 SCC 285 and J..S. Parihar Vs. Ganpat Duggar reported in (1996) 6 SCC 29, it was held by the Honble Supreme Court 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. Similarly in the case of Shall Raj Kishore, Secretary, Education Basic, U.P. Lucknow and others reported in 2004(3) AWC 2444- the Honble Allahabad High Court held that 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, the Apex Court has held that Contempt court cannot go into the merit of the order. Various grounds raised by the learned counsel 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. Likewise in the case of Anil Kumar Sahi (2) Vs. Prof Ram Sewak Yadav reported in (2008) 14 SCC 115, the Honble Apex Court held that When the court direct 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 legal position does not constitute contempt of court. There is no willful disobedience, if the best efforts are made to comply with the court order.
18. During the course of arguments, it was also brought to our notice, that at times, contempt petitions are dismissed for default and non-prosecution and in such matters, at least a recall application should be entertained in the interest of justice even in absence of any enabling provisions.
19. In this regard suffice is to mention here that when an alleged contempt is brought to the notice of the court/ Tribunal within limitation period, an order for issuance of show cause notice may or may not be passed. Once notices are issued after due application of mind, it becomes a matter between the court/ Tribunal and the contemnor as already observed herein-before. Therefore, even if the petitioner or his counsel does not come up on a particular date or does not pursue it, the contempt petition should not and cannot be dismissed for default and non-prosecution. After issuance of notice, the contemnor(s) can not be deemed to have been discharged from the contempt proceedings unless he /she is held to be not guilty or otherwise discharged. Similar view was taken by the Division Bench of Honble Allahabad High Court in the Writ Petition No. 66/2003 in the case of Mahavir Prasad Vs. CAT, Lucknow Bench and another decided on 17.1.2013 (supra).. .
20. Therefore, no such order dismissing a contempt petition in default or non-prosecution should be passed particularly after issuance of show cause notices. Such an order would be nonest and void ab-initio which should not be permitted to continue. Such an order has to be recalled or set aside for which no enabling provisions / vesting of powers under an Act or Rules is required it being ab-initio void and nonest. We would also like to add that the final orders in a contempt case whether one of dismissal or punishment must be passed after exercising due diligence abundant caution and scrutiny. Such an order can be appealed against but cannot be revived through revival clause or review or recall.
21. In the case of Raja Ram Waman Masurkar Vs. Lokmanya Shikshan Prasarak reported in 2008(1) BOM CR 422[ 2007 (109) Bom L.R. 1488- a specific question was decided by a Bench headed by Honble Swatanter Kumar (C.J.) whether the Honble High Court has power to recall its own order and restore the impugned contempt petition which was dismissed for non appearance of the petitioner and his advocate. It was answered in affirmative keeping in view the scope of Contempt jurisdiction exercisable by the High Court in furtherance of the Constitutional mandate contained in Article 215 of the Constitution and the Contempt of Courts Act. It may be noted here that Honble High Court is a Court of record and an inherent power has been conferred upon it under Article 215 of the Constitution to deal with its own contempt which is not available to the Tribunals. Nevertheless, as far as the Contempt of Courts Act is concerned, the Central Administrative Tribunal has the same power which are exercised by Honble High Court. The aforesaid answer rendered by the above Bench of Honble High Court, Bombay has been based not only on the Constitutional mandate contained in Article 215 of the Constitution but also the Contempt of Courts Act. Therefore, in view of the above ratio contempt petition dismissed for default can be restored by a Tribunal for which no vesting or conferment of power is required. We are further fortified in our view by the case of S.Nagaraj and others Vs.State of Karnataka and another reported in 1993 Supp (4) Supreme Court Cases 595. The relevant para is as under:-
18. Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court. In Administrative Law the scope is still wider. Technicalities apart if the Court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order.
22. It may be mentioned here that the Administrative Tribunal have been created by amending Constitution of India. By means of 42nd amendment Act, 1976, Articles 323-A and 323-B have been incorporated in the Constitution for the purpose of creation of Administrative Tribunal., The framers of the Administrative Tribunal Act and Rules provided for an express and specific power in the Act itself to ensure that no order passed by the Tribunal may go un-executed in letter and spirit. The relevant Section 27 of the Act, 1985 reads as under:-
27. Execution of Orders of a Tribunal - Subject to the other provisions of this Act and the rules, [the order of a Tribunal finally disposing of an application or an appeal shall be final and shall not be called in question in any Court (including a High Court) and such order] shall be executed in the same manner in which any final order of the nature referred to in clause (a) of sub - section (2) or section 20 (whether or not such final order had actually been made) in respect of the grievance to which the application relates would have been executed. For willful disobedience of an order passed by a Tribunal, the requisite power to punish for contempt have been separately provided under section 17 of the Act, 1985 as already discussed.
23. Finally, therefore, as discussed before, firstly a Tribunal should refrain itself from dismissing in default a contempt petition particularly after issuance of show cause notice as discussed in detail in para 19 of this order. However, if a contempt petition has been dismissed for default by a Tribunal, the absence of vesting /conferment of power of review /recall shall not come in the way of recalling such order because such an order is void ab-initio and nonest and the root from which the power flows is the anxiety to avoid injustice. The justice is a virtue which transcends all barriers. Even the law bends before justice and in such matters it becomes the constitutional and legal obligation of a Court/ Tribunal to do the needful as laid down in the case of S. Nagraj (supra).
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 non-est 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. No. 1111/2000 will be placed before the appropriate bench for disposal in the light of this order/judgment.
13. Since the respondents have already counted the past service of the petitioner/applicant with the State Government of Madhya Pradesh, and have arrived at a figure of the total qualifying service of the petitioner/applicant of more than 41 years, they cannot be held to have acted against the orders of this Tribunal, and to be in contempt of this Tribunal. Therefore, the present C.P. No.430/2012 is rejected as being against tenets of law. Notices issued to the respondents are discharged. Therefore, M.A.No.3232/2012 for extension of time also stands disposed off .
(V.Ajay Kumar) (Sudhir Kumar) Member (J) Member (A) /kdr/