Central Administrative Tribunal - Lucknow
Ram Nivas Ram Ahir Aged About 66 Years Son ... vs Sri Mahesh Kumar Mittal Son Of Sri Nand ... on 21 July, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL LUCKNOW BENCH LUCKNOW M.P. No. 758/2009 in CCP No.85 of 2008 in O.A. No.431/2003 Order Reserved On 7.7.2015 Order Pronounced on 21.7.15 HONBLE MR. NAVNEET KUMAR MEMBER (J) HONBLE MS. JAYATI CHANDRA, MEMBER (A) Ram Nivas Ram Ahir aged about 66 years son of Ram Narain Ahir R/o village Puraina, P.O. Hanumanganj, District- Sultanpur, U.P. Applicant By Advocate: Sri A.P.Singh Versus 1. Sri Mahesh Kumar Mittal son of Sri Nand Kishore Mittal, Branch Manager, Central Bank of India, Deonar Branch, Mumbai. 2. Sri M.D. Kashyap, Branch Manager , Central Bank of India, Sltanpur Branch, Sultanpur (U.P.) Respondents By Advocate: Sri V.K.Srivastava ORDER
By Honble Sri Navneet Kumar, Member (J) The present contempt petition is preferred by the applicant for non-compliance of the order dated 2nd February, 2007 passed in O.A. No. 431/2003. The said contempt petition was came up for orders/hearing and this Tribunal vide order dated 16th Mach, 2009 passed the following orders:-
Compliance is done as per the directions given by our judgment and order dated 2.2.2007. Compliance report/ counter affidavit is taken on record. Contempt proceedings are dropped. Notices stand discharged. No costs.
2. It is also to be indicated that the said order was passed in presence of both learned counsel for the parties. The applicant being not satisfied , preferred the recall application vide M.P.No. 258/2009 and in the said application, it is submitted that the respondent No. 2 made some wrong statement in the absence of counsel for applicant and the Tribunal on the basis of said statement passed the order with the observation that the compliance is done as per the direction given by our judgment and order dated 2.2.2007 and discharged the notices. Apart from this, applicant has also alleged that on account of false statement about compliance of judgment and order dated 2.2.2007 was made on behalf of respondent No. 2 which also amounts to further contempt of this Tribunal..
3. Learned counsel appearing on behalf of the respondents filed objection and has indicated that the order dated 16.3.2009 was passed on merits after hearing counsel for parties and it is not open for the applicant to re-agitate the matter by moving recall application showing non-presence which is false and has also vehemently argued and submitted that since the order dated 16.3.2009 was passed in presence of both the learned counsel for the parties as such it does not require any interference and if the applicant is not satisfied with the order dated 16.3.2009, he has remedy to approach the higher forum.
4. The learned counsel for the respondents has also relied upon a decision of the Full Bench of the Tribunal in the case of Satyapal Singh and others Vs. I.M.G. Khan and others passed on 11.6.2013 in Civil Misc.Recall Application No. 3242 of 2011 in Civil Misc. Contempt Petition No. 164/2007 in O.A. No. 1111 of 2000 and has indicated that Full Bench has categorically observed that in the contempt matter decided on merits, the orders cannot be reviewed.
5. On behalf of the applicant, an application under Section 340 Cr.P.C. for initiating the proceedings against the respondents was also filed and it is submitted that notice be issued to respondent No. 2 to show cause as to why proceedings under Section 340 Cr.P.C. may not be initiated against them.
6. Heard the learned counsel for parties and perused the records.
7. The question which arise for consideration is whether recall application is maintainable against the order passed in the contempt petition or not when the matter has already been adjudicated on merits not otherwise.
8. The Tribunal while deciding the O.A. passed the following orders:-
(i) That the concerned Bank namely Central Bank of India, Deonar Branch, Mumbai will calculate the total amount of pension due to the applicant w.e.f. the date of stoppage of such pension to the applicant till the date of receipt of certified copy of this order and make necessary payment of this amount to the applicant.
(ii) That they will also pay an interest at the rate of 12% on the amount of pension payable on a monthly basis every year.
(iii) That they will immediately resume payment of monthly pension, due to the applicant, through their Sultanpur Branch as requested by them.
This will however be subject to production of a life certificate by the applicant, duly certified by a gazetted officer of the Central or State Govt. or any other responsible person/officer, which will show that the applicant was still alive to receive the pensionary benefits, in question.
9. The order of the Tribunal was duly communicated upon the respondents and when it was not complied with, the applicant preferred the present contempt petition. After notice, the respondents filed their counter reply. It is indicated that the applicant was directed to produce the life certificate verified by a gazetted officer of the Central or State Govt. or any other responsible person/officer, in order to receive the amount of pension which compliance has not been done by him. Apart from this, it is also submitted that Senior Manager of the Sultanpur Branch instructed the applicant on 29.12.2008 by writing a letter to furnish life certificate , identity proof and undertaking as a sum of Rs.352674/- is credited in the applicants account No. 1350696872.
10. The respondents counsel also vehemently argued and submitted that the bank time and again asked the applicant to furnish life certificate but he failed to furnish the same to the bank and ultimately in the second week of January, 2009, the said formalities of furnishing life certificate was done by the applicant and thus the applicant himself failed to comply the direction of the Tribunal as given in judgment dated 2.2.2007 and the applicant has also withdrawn a sum of Rs. 20000/- on 12.1.2009 from his pension account.
11. On the basis of said statement rendered by the respondents, the Tribunal dropped the contempt proceedings and discharged the notices so issued to the respondents. The bare perusal of the Rule shows that there is no enabling provision for the Tribunal to recall /review the order passed on merits in contempt petition . In absence of any specific vesting of power in this regard, it is felt that no recall/ review application is maintainable against the order passed in contempt by the Tribunal. It is needless to say that recalling of final order passed on merits in contempt mattes would amount to review 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/Rule, no such recall application is maintainable in contempt petition. In this regard certain propositions of law laid down by the Honble Apex Court and also by the Honble High Court also came to our notice which are discussed as under:-
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.
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.
15. A Division Bench of Honble High Court of Judicature at Allahabad, Lucknow Bench (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.
12. As regard the application under Section 340 Cr.P.C. is concerned, the applicant claims that the respondents have mislead the Tribunal and obtained order by fraud as such proceedings may be initiated against them under provision of Section 340 Cr.P.C. We have seen the compliance report and order passed by the Tribunal in the O.A. as well as the order passed by the Tribunal in contempt petition, we find that this has been done after due application of mind and the respondents have fully complied with the order of the Tribunal, as such there appears to be no misleading on behalf of the respondents, as such we do not find any reason to issue notice on application u/s 340 Cr.P.C.
13. In view of the discussion made in the foregoing paras, it is our considered view that recall application is not maintainable against the order passed in contempt petition decided on merits.
14. Accordingly, recall application is not maintainable and is rejected. No order as to costs.
(Ms. Jayati Chandra) (Navneet Kumar) Member (A) Member (J) HLS/-