Andhra HC (Pre-Telangana)
Ch. Rama Rao And Anr. vs State Of A.P., Industries And Commerce ... on 29 June, 2001
Equivalent citations: 2002(1)ALT255
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, C.J.
1. These writ applications involve an interesting question of law as regards the power of Administrative Tribunal constituted under Article 323-A of the Constitution of India to issue an interim order although no rule of contempt has been issued in exercise of its power under Section 17 of the Administrative Tribunals Act (hereinafter referred to as the said Act).
2. The basic fact of the matter is not in dispute. The caveators - unofficial respondents working in the Department of Industries have filed various applications under Section 19 of the said Act to direct the respondents not to effect promotions to the post of Joint Directors till further orders. In OA. No. 918 of 2001, the learned Tribunal directed the respondents not to effect promotions to the post of Joint Director till further orders.
3. In the said case, the prayer reads thus:
"To grant appropriate relief, declaring the action of the respondents in effecting promotions to the post of Joint Director of Industries without preparing seniority list in the feeder category in Deputy Director of Industries and giving effect to the D.P.C. recommendations dated 3-8-2000 which expired by 31-12-2000 as arbitrary, illegal and unconstitutional violating Articles 14, 16 and 21 of the Constitution of India and consequential directions directing the respondents in restraining from effecting promotions to the post of Joint Director of Industries without preparing seniority list in the cadre of Deputy Director of Industries which is the feeder category and also restrain them from giving promotions to the post of Joint Director of Industries basing on D. P.C. recommendations dated 3-8-2000 and effect promotions only after preparation of final seniority list or any other provisional sen(SIC)rity which is existing.
4. However, the State of Andhra Pradesh issued G.O.Ms.No. 87, Industries and Commerce Department dated 15-2-2001 approving the panel for promotion to the post of Joint Director and also issued G.O.Ms.No. 88, Industries and Commerce Department dated 15-2-2001 in terms whereof, the promotions as also postings were given to the post of Joint Director. The learned Tribunal by an order dated 16-2-2001 stayed the operation of the said G.Os. By the time the Tribunal granted interim orders, promotions were effected by the Government. An application for initiation of proceedings under Contempt of Courts Act was filed in C.A.No. 315 of 2001 for not implementing the orders of the Tribunal. The learned Tribunal while issuing notice on 26-4-2001 in the Contempt Application directed the respondents to maintain status quo as on 14-2-2001 and further directed to issue consequential reversion orders if necessary. Questioning the vires of the said order of the learned Tribunal dated 26-4-2001, the present writ applications have been filed.
5. For the alleged wilful disobedience of the aforementioned orders of the learned Tribunal, the Contempt Application was filed. Several contentions had been raised on behalf of the alleged contemnors. Differing with the said contentions, the Tribunal directed:
In this view of the matter, this is a fit case where notices have to be issued on the contempt application. Accordingly, issue notice to the respondents to explain away their conduct as to why they should not be punished under the Contempt of Courts Act for violating the orders of this Tribunal returnable within four weeks.
6. Then, the Tribunal for all intent and purport issued rule on the Contempt Application. In the C.M.A.No. 53 of 2001 that was filed in the said contempt application, the learned Tribunal observed:
The learned Counsel for the applicant and the learned Govt. Pleader are heard. Much water has flown beneath the bridge. There is no need to dwell on this matter at length presently. As the respondents are aware that each and every direction given by this Tribunal was to the effect that no promotions should be effected until and unless the seniority list in the cadre of Asst. Director and Deputy Directors is finalized, the respondents are directed to maintain status quo as on 14-2-2001 and if necessary issue consequential reversion orders.
7. The contention raised in these applications on behalf of the petitioners is that the learned Tribunal does not have the power to pass interim order although no rule of contempt was issued.
8. The learned Counsel appearing on behalf of the unofficial respondents on the other hand submit that such power vests in the Tribunal. Strong reliance has been placed on a Full Bench decision of Madras High Court in Vidya Charan Shukla v. Tamil Nadu, wherein it was held that the Court can exercise its inherent jurisdiction under Articles 215 and 223 of the Constitution apart from its jurisdiction under Order XXXIX Rule 2-A of Civil Procedure Code. It was also submitted that any order passed by the Tribunal cannot be made a subject matter of a writ petition as appeal lies under Section 19 of the Contempt of Courts Act. Reliance in this connection has been placed in T. Sudhakar Prasad v. Government of Andhra Pradesh, 2001 (1) Law Reports of India 1 = (2000) 1 SCC 516.
9. Section 17 of the Administrative Tribunals Act reads thus:
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 Addl. Solicitor-General; and
(ii) In relation to 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.
10. A further question arises as to whether a writ petition is maintainable against the impugned order.
11. Before proceeding to consider the matter, we may notice that a Division Bench of this Court in a writ petition questioning the jurisdiction not to initiate contempt proceedings held that the Tribunal has no such jurisdiction. Such conclusion was arrived at having regard to the decision of the Apex Court in L. Chandra Kumar v. Union of India, . The aforementioned decision of this Court has since been reversed by the Apex Court in T.Sudhakar Prasad's case (2 supra). The Apex Court having regard to the provisions contained under Article 323-A of the Constitution of India, negatived the aforementioned contention stating that:
On coming into force of the Act and constitution of the Central Administrative Tribunal all the jurisdiction, powers and authority exercisable immediately before that day by all Courts, which would include the High Court (except the Supreme Court) in relation to the matters specified in Section 14(1) of the Act came to be conferred on the Tribunal. Section 17 gives the Tribunal power to punish for contempt.
12. In terms of Articles 129 and 215 of the Constitution of India, the Supreme Court of India as also High Courts are Courts of record. It was held that the said provisions merely recognize a pre-existing situation that the Supreme Court and High Courts are Courts of record and by virtue of being Courts of record they have inherent jurisdiction to punish for contempt. It was observed that the provisions of the Contempt of Courts Act, 1971 are in addition to and not in derogation of Article 129. The provisions of Contempt of Courts Act, 1971 cannot be used for limiting or regulating the exercise of jurisdiction contemplated by the said two Articles. The Apex Court referred to the decision of the Supreme Court in Supreme Court Bar Association v. Union of India, and observed that the Courts of record enjoy power to punish for contempt as a part of their inherent jurisdiction; the existence and availability of such power being essential to enable the Courts to administer justice according to law in a regular, orderly and effective manner and to uphold the majesty of law and prevent interference in the due administration of justice.
13. In another decision of Supreme Court in L. Chandra Kumar v. Union of India (3 supra), it was held:
All decisions of Tribunals whether created pursuant to Article 323-A or Article 323-B of the Constitution, will be subject to the High Court's writ jurisdiction under Articles 226/227 of the Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular tribunal falls.
14. Noticing that the Constitution Bench in L.Chandra Kumar's case (3 supra) had not declared the provisions of Article 323-A or Article 323-B or Section 17 of the said Act as ultra vires, the Bench in T.Sudhakar Prasad's case (2 supra) observed:
The Consitution Bench has in so many words said that the jurisdiction conferred on the High Court under Articles 226/227 could not be taken away by conferring the same on any Court or Tribunal and jurisdiction hitherto exercised by the High Court now legislatively conferred on Tribunals to the exclusion of High Court on specified matters, did not amount to assigning Tribunals a status of substitute for the High Court but such jurisdiction was capable of being conferred additionally or supplimentally on any Court or Tribunal which is not a concept strange to the scheme of the Constitution more so in view of Articles 323-A and 323-B. Clause 2(b) of the Article 323-A specifically empowers the Parliament to enact a law specifying the jurisdiction and powers, including the power to punish for contempt, being conferred on administrative tribunals constituted under Article 323-A. Section 17 of the Act derives its legislative sanctity therefrom. The power of the High Court to punish for contempt of itself under Article 215 of the Constitution remains intact but the jurisdiction power and authority to hear and decide the matter covered by Sub section (1) of Section 14 of the Act having been conferred on the administrative tribunals the jurisdiction of the High Court to that extent has been taken away and hence the same jurisdiction which vested in the High Court to punish for contempt of itself in the matters now falling within the jurisdiction of tribunals if those matters would have continued to be heard by the High Court has not been conferred on the administrative tribunals under Section 17 of the Act. The jurisdiction is the same as vesting in the High Courts under Article 215 of the Constitution read with the provisions of the Contempt of Courts Act, 1971. The need for enacting Section 17 arose, firstly, to avoid doubts, and secondly, because the tribunals are not Courts of record. While holding the proceedings under Section 17 of the Act the Tribunal remains a tribunal and so would be amenable to jurisdiction of High Court under Article 226/227 of the Constitution subject to the well established rules of self reliant governing the discretion of the High Court to interfere with the pending proceedings and upset the interim interlocutory orders of the Tribunals.
15. The Apex Court further held:
The power of superintendence exercised by the High Court under Article 227 of the Constitution is judicial superintendence and not administrative superintendence, such as one which vests in the High Court under Article 235 of the Constitution over subordinate Courts. Vide para 96 of L. Chandra Kumar's case (3 supra), the Constitution Bench did not agree with the suggestion that the tribunals be made subject to the supervisory jurisdiction of the High Court within whose territorial jurisdiction they fall, as our Constitutional scheme does not require that all adjudicatory bodies which fall within the territorial jurisdiction of any High Court should be subject to its supervisory jurisdiction. Obviously, the supervisory jurisdiction referred to by the Constitution Bench in para 96 of the judgment is the supervision of the administrative functioning of the tribunals as it spelt out by discussion made in paras 96 and 97 of the judgment.
16. Keeping in view the fact that the Administrative Tribunal has been equated with the High Court in exercise of judicial authority over the matters specified, it was observed:
..... We are therefore clearly of the opinion that there is no anathema in the tribunal exercising jurisdiction of the High Court and in that sense being suplemental or additional of the High Court but, at the same time not enjoying status equivalent to High Court and also being subject to judicial review and judicial superintendence of the High Court.
17. It was held that in terms of the said Act, an appeal shall lie to the Supreme Court under Section 19 (2) of the Contempt of Courts Act read with Administrative Tribunals Act. The appeal shall be maintainable before Supreme Court of India only in terms of Section 28 of the said Act.
18. The question as to whether an appeal shall be maintainable against an interim order passed by the Tribunal under Clause 15 of Letters Patent came up for consideration before a Division Bench of Calcutta High Court in Ramendra Nath v. Gouri Shankar, 1991 (1) Cal.L.J. 125 wherein it was observed:
The remedy in such circumstances may be in the form of direction to the contemner to purge the contempt or a sentence of imprisonment or fine or all of them. On the facts of that particular case the Court held that mere imposition of imprisonment or fine will not meet the ends of justice. There will have to be an order to purge the contempt by directing the respondent contemnor to deliver vacant possession immediately and issuing necessary further and consequential directions for enforcing the same.
19. Yet again in Nripendra Kumar Battacharjee v. Ramchandra Barik, 1993 (1) Cal.L.J. 129 it was held that if an interim order adversely affects the parties, an appeal shall lie.
20. In Md. Kasem Ali Mondal v. Ajoy Rande, 2000 (1) CHCN 543, a Division Bench of Calcutta High Court upon taking a large number of decisions held that in certain situations, an appeal will be maintainable. The Division Bench noticed the dicisions of the Apex Court in State of Maharashtra v. Mahboob S. Allibhoy, and J.S. Parihar v. Ganpat Duggar, . It was noticed that in the aforementioned decisions, the earlier decisions of Supreme Court in Barodakanta Mishra v. Justice Gatikrushna Mishra, and in Barodakanta Mishra v. Orrissa High Court, had not been taken note of. In fact in J.S. Parihar's case and in Mahboob S. Allibhoy's case, this aspect of the matter had not been considered at all and thus, the same may be held to have passed sub silentio. In A-One Granites v. State of U.P., 2001 AIR SCW 848, it was observed:
This question was considered by the Court of Appeal in Lancaster Motor Co. (London) Ltd., v. Bremith Ltd., (1941) 1 KB 675, and it was laid down that when no consideration was given to the question, the decision cannot be said to be binding and precedents sub silentio and without arguments are of no moment.
21. We may notice that the Apex Court in Purushotham Dass v. Hon'ble Mr. Justice B.S. Dhillon, , it was held that an appeal from an interlocutory order may be maintainable.
22. In Prof. Sri Sandeep v. D. Laxmi, , this Court held:
Here is a case in which the appellant was in fact found guilty of Contempt of Court. As far as the punishment is concerned, the learned Judge took a lenient view. Instead of sentencing the appellant to imprisonment or payment of fine, the learned Judge administered a warning to the applicant. In such a situation, it cannot but be said that the High Court passed the order in the exercise of its jurisdiction to punish for contempt. Punishment need not necessarily be in the form of imprisonment or fine. Finding a party guilty of Contempt of Court and following it up by admonition or warning or award of exemplary costs or the like is an instance of the High Court exercising its jurisidiction to punish the respondents for Contempt. The amplitude of the expression "jurisdiction to punish for contempt" in our view, cannot be unduly restricted so as to confine it only to cases of imprisonment and for imposition of fine.
23. In R.N Dey v. Bhagyabati Pramanik, , relying on the decision in Purshotham Dass Gael's case (13 supra) the Apex Court observed:
When the Court either suo motu or on a motion or a reference, decides to take action and initiate proceedings for contempt, it assumes jurisdiction to punish for contempt. The exercise of jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt and if the order is passed not discharging the rule issued in contempt proceedings, it would be an order or decision in exercise of its jurisdiction to punish for contempt. Against such order, appeal would be maintainable.
24. Mr. M Surender Rao, Counsel appearing for the petitioner in one of the writ applications relied upon a decision of the Apex Court in Vijay Singh, Secretary Home v. Mittanlal Hindoliya, (1997) SCC (L & S) 454 wherein it was held that when there had been no deliberate disobedience of the Court's order, the Court cannot issue any further direction.
25. An appeal is maintainable by a person who is affected thereby. The petitioners herein contend that they being not parties to the proceedings, are adversely affected by reason of the interim order passed in the contempt proceedings. In the event an appeal is held to be maintainable, they can also prefer the appeal before the Apex Court.
26. The matter would have been otherwise dealt with, had we come to the conclusion that the appeal was not maintainable or the Tribunal had acted without jurisdiction in passing the impugned order. Although, normally, the Court or the Tribunal would not pass an interlocutory order while initiating proceedings for contempt, but in exceptional circumstances, it may do so with a view to maintain status quo or to prevent miscarriage of justice. Such inherent power having regard to Section 17 of the said Act must be held to be vested in the Tribunal. We are therefore of the opinion that the appeal being maintainable against the impugned order, this Court should not exercise its writ jurisdiction under Article 226 of the Constitution of India. At this juncture, in our opinion, the question as to whether there has been a wilfull violation of the Court's order cannot be decided inasmuch as the Administrative Tribunal is in seisin of the matter.
27. For the reasons aforementioned, there is no merit in these writ applications. They are accordingly dismissed. No costs.