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Central Administrative Tribunal - Allahabad

Dhiraj Jain vs General Manager N C Rly on 6 November, 2023

                                  (RESERVED ON 31.10.2023)

      CENTRAL ADMINISTRATIVE TRIBUNAL,
         ALLAHABAD BENCH, ALLAHABAD

      This the 6th day of November 2023

         MA No. 93 of 2020
                  In
Contempt Petition No. 121 of 2019
                  In
Original Application NO. 672 OF 2019

HON'BLE MR. JUSTICE OM PRAKASH VII, MEMBER (J)
HON'BLE MR. MOHAN PYARE, MEMBER(A)

Dhiraj Jain aged about, 47 years, Son of, Late Sh. J.K. Jain,
Permanent resident of, C-2/68 West Enclave, Pitampura, Delhi.
Presently posted as Dy. CMM (PU/ALD) in North Central
Railway at Allahabad.
.
By Advocate: Dhiraj Jain - Applicant in person

                         Versus
1.   Sh. Vijay Prakash Pathak, Member Materials Manager
Railway Board, New Delhi.

2.   Sh. Sushant Kumar Mishra, Secretary, Railway Board,
New Delhi.

                            ............                    Respondents
By Advocate : Sri M.K. Sharma
                          ORDER

Per Justice Om Prakash VII, Member-J

1. The applicant filed MA no. 93 of 2020 relating to contempt Petition No. 121 of 2019 in OA no. 672 of 2019 under section 24 of the rules read with section 71 of India Penal Code with a prayer to connect CP nos. 121 of 2019, 162 of 2019 and Diary no. 3901 of 2019. An another Miscellaneous application under section 30 of Administrative Tribunal Act read with section 340 of Cr.PC has also been filed with a prayer that the original records of the respective public offices be summoned for enquiry and enquiry may be conducted in accordance with law. A prayer has also been made that the same may be forwarded to the court of competent jurisdiction for trial of the respondents in accordance with law. In support of the said application, the applicant has filed number of documents in order to demonstrate his claim, including the Page 1 of 6 judgment and order passed by Hon'ble High Court in Writ-A no. 30680 of 2012. It is also stated that the applicant has filed two contempt petitions namely CP no. 121 of 2019 and 162 of 2019 and both were clubbed together vide order dated 21.12.2022.

2. Learned Counsel appearing on behalf of the respondents has filed objection against the MA no. 93 of 2020 stating therein that the applicant has filed another MA under section 30 of the AT Act read with section 340 of Cr.PC. The respondents have also stated that from perusal of the aforesaid two MAs, which have been filed by the applicant in OA no. 672 of 2019, it would reveal that all the respondents have been arrayed/impleaded in their personal capacity and on this ground alone the instant application is liable to be dismissed on the ground of mis-joinder of the parties. The respondents have also quoted rule 24 of CAT (Procedure) Rules 1987 as well as section 71 of IPC for advancement of their argument.

3. Written submissions on behalf of the applicant have been filed in MA no. 93 of 2020 in support of his claim. To this, the learned counsel for respondents has also filed their written submissions with regard to the contentions as made in their objections to MA no. 93 of 2020.

4. Heard the applicant, who is present in person, and also perused the pleadings available on record.

4. Submission of the applicant is that OA no 672 of 2019 had been filed by the applicant, which came to be disposed of vide judgment and order dated 04.07.2019 with a direction to the opposite parties/respondents to decide the pending representation of the applicant 26.04.2019 by passing reasoned and speaking order. The applicant has also argued that since direction given by this Tribunal in the aforesaid OA was not complied with, he filed Contempt Petition no. 121 of 2019 before this Tribunal. The respondents/opposite parties in compliance of the directions given by this Tribunal, have filed Compliance Affidavit on 21.10.2019 specifically mentioning in para 5 thereof that the petitioner was medically examined by the medical board wherein he was found fit to resume his duty. The applicant further argued that he had been treated at AIIMS New Delhi. The applicant also referred the prescription report dated 26.08.2019 which is annexed at page 56 to 61 as Annexure no.

9. The applicant also referred at page no. 61 of the aforesaid MA and argued that observations in the prescription report was made by the doctors concerned that "Pt. is fit to work. Avoid heavy work and travelling. Light duty preferred."

Page 2 of 6

5. Referring to the aforesaid facts and observations recorded in the prescription report, the applicant further argued that when the Compliance affidavit was filed, a false fact has been mentioned in the affidavit showing that the applicant was examined by the Medical Board and was found fit to resume his duty. It is further argued that the last portion of the recommendations were not mentioned in the Compliance affidavit, thus, a false affidavit concocting the facts has been mentioned which attracts the provisions contained in section 193, 219 and 228 of IPC as contained in section 30 of the Administrative Tribunals Act. The applicant has also referred the written submissions filed by him and further argued that since the contempt petition is pending before this Tribunal, an affidavit has been filed in it making false facts. Thus, the application be allowed and inquiry be made against the respondents and other officials who have filed a false affidavit. The applicant has also referred the provisions of section 340 of Cr.PC. He further argued that section 71 of IPC is also attracted in the matter. In conclusion, he argued that the notice may be issued to the opposite parties/respondents and other officials and to inquire the matter taking the recourse of the provisions contained in section 340 Cr.PC and matter be referred to the competent court for trial of the accused person(s) who have committed the aforesaid offence. In order to substantiate his claim, the applicant has also referred the entire documents including the judgment and order passed by Hon'ble High Court in Writ-A no. 30680 of 2012.

6. Since, the present application has been preferred by the applicant under section 340 Cr. PC, therefore there is no need to hear the respondents at this stage until and unless they are summoned or notice after forming an opinion regarding a prima facie case is made out, otherwise they have no locus to agitate the facts as mentioned in the application of the applicant file under section 340 Cr.PC at this stage.

7. We have considered the entire facts and circumstances of the case in the light of the submissions raised on behalf of the applicant and have also gone through the entire records available on the file.

8. Before dwelling to the submissions raised on behalf of the applicant, it would be appropriate to quote the relevant provisions which has been quoted/mentioned by the applicant in the said application.

9. For better appreciation of the case, the relevant provisions as mentioned by the applicant are as under:-

Page 3 of 6
Section 30 of Administrative Tribunals Act reads as under:-
"Proceedings before a Tribunal to be Judicial Proceedings- All proceedings before a Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193, 219 and 228 of the Indian Penal Code (45 of 1860)."

Rule 24 of Administrative Tribunal Act 1987 reads as thus:-

"Order and directions in certain cases- The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect to its order or to prevent abuse of its process or to secure the ends of justice."

Section 71 of IPC reads as under:-

"Limit of punishment of offence made up of several offences.--Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided. [Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences]. Illustrations
(a) A gives Z fifty strokes with a stick. Here A may have committed the offence of voluntarily causing hurt to Z by the whole beating, and also by each of the blows which make up the whole beating. If A were liable to punishment for every blow, he might be imprisoned for fifty years, one for each blow. But he is liable only to one punishment for the whole beating.
(b) But, if, while A is beating Z, Y interferes, and A intentionally strikes Y, here, as the blow given to Y is no part of the act whereby A voluntarily causes hurt to Z, A is liable to one punishment for voluntarily causing hurt to Z, and to another for the blow given to Y."

Section 340 of Criminal Procedure Code reads as under:-

"Procedure in cases mentioned in section 195.--(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of Justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence 152 in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,--
Page 4 of 6
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub- section (4) of section 195.
(3) A complaint made under this section shall be signed,--
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf.
(4) In this section, "Court" has the same meaning as in section 195.

10. It is evident from the record that OA no. 672 of 2019 was decided vide judgment and order dated 04.07.2019 wherein a specific direction has been given to the respondents to pass a reasoned and speaking order on the representation of the applicant. It also transpires that the respondents have passed a reasoned and speaking order on 09.10.2019 disposing of the representation of the applicant, which has been filed along with the Compliance affidavit, wherein specific fact has been mentioned in para 5 thereof that the applicant was medically examined by the Railway Board and was found fit to resume duty. The applicant's submission is that the entire facts as recommended/observed by the doctors of AIIMS New Delhi in the prescription report has not been placed before this Tribunal in the Compliance affidavit and instead thereof only few part of the same was taken into consideration by the Railway Board, which was constituted at the command of the respondents and the entire recommendations of the doctors of AIIMS New Delhi have not been taken into consideration by the respondents in toto. If the submission raised on behalf of the applicant is taken into consideration in the light of the fact as mentioned in para 5 of the Compliance affidavit as well as the provisions contained under section 340 Cr.PC, it emerges out that the facts as Page 5 of 6 mentioned in para 5 of the Compliance affidavit is based on the observations as recorded by the doctors of AIIMS New Delhi in their prescription report which has already been annexed in this application.

11. Certainly doctors of AIIMS New Delhi recommended that "Pt. is fit to work. Avoid heavy work and travelling. Light duty preferred." If the Compliance affidavit has been filed mentioning therein that the applicant was found fit to resume his duty and the same is compared with the facts as mentioned in the prescription report, it cannot be said that the fact as mentioned in the Compliance affidavit is false and the facts as mentioned in the prescription report as prepared at AIIMS New Delhi has been twisted. None of the provisions of IPC as disclosed by the applicant in his application are attracted. The inquiry, taking the recourse to the provisions of section 340 Cr.PC has to be made on the satisfaction by the Tribunal that a prima-facie case to proceed under section 340 Cr.PC is made out. Facts as mentioned in the Compliance affidavit cannot be said to be false as doctors of AIIMS New Delhi has also mentioned in their prescription report that "Pt. is fit to work. Avoid heavy work and travelling. Light duty preferred." Further, the Medical Board constituted at the respondents' level consisting of five members, has also declared that the applicant is fit to resume his duty. Thus, the facts as disclosed in the Compliance affidavit cannot be said to be false. In these circumstances, no need arises to proceed in the inquiry taking the recourse to the provisions contained in section 340 Cr.PC and therefore, the prayer for summoning of the documents are also not necessitated. Vide this Tribunal's order dated 21.12.2022, the associated CCPs were directed to be listed together.

12. In view of the discussions made herein above, we do not find any good ground to allow the prayer as made in the application bearing MA no. 93 of 2020. Accordingly, MA no. 93 of 2020 is rejected.

13. All the associated MAs stand disposed of.

14. List this matter on 14.12.2023 alongwith connected matter. 

(Mohan Pyare)                             (Justice Om Prakash VII)
Member-A                                               Member-J
Girish/-




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