REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
1
2 CIVIL APPEAL NO. 3297 OF 2012
3 (Arising out of SLP (C) No. 21096 of 2010
R. Mohajan & Ors. .... Appellant (s)
Versus
Shefali Sengupta & Ors. .... Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) Leave granted.
2) This appeal is filed against the order dated 11.06.2010 passed by the
Central Administrative Tribunal, Calcutta Bench in CPC No. 113 of 2005
(O.A. No. 203 of 1997) whereby the Tribunal passed an order directing the
appellants herein to be present in court on the next date of hearing for
receiving the charges of contempt and adjourned the matter to 30.07.2010.
3) Brief facts:
(a) The respondents herein were initially employed on the post of L.D.C.
in DGS&D, Calcutta on various dates. Respondent Nos. 1 & 2 herein were
further promoted as UDC in DGS&D. Their services were being utilized in
purchase department for procurement against the ad hoc indents of the
indenting Ministries/Departments. A decision was taken by the Central
Government that the work relating to procurement could be transferred to
the concerned department and in this view, the respondents were transferred
vide order dated 08.04.1992 to the Office of General Manager, Eastern
Railway, S.E. Railway, C.L.W. and Metro Railway. They were placed under
the disposal of the Controller of Stores, S.E. Railway in their existing
capacity, pay and grade w.e.f. 24.04.1992.
(b) On 18.10.1994, the Railway Board issued an order regarding the
absorbed persons, who came to be transferred from DGS&D to Zonal Railways
and Production Units wherein it has been mentioned that these employees may
be absorbed in the Railways to which they have been transferred and
assigned seniority on the basis of date of their regular
promotion/appointment in the relevant grade. In terms of the order passed
by the Railway Board, their absorption and seniority list was issued vide
Office Order dated 10.02.1995. Based on the seniority list, they were
given promotion to the next post of Head Clerk and Senior Clerk vide Office
Orders dated 23.06.1995 and 31.10.1995 respectively. Subsequently their
seniority was published in the grade of Head Clerk and Senior Clerk vide
orders dated 28.07.2000, 12.07.2001, 29.10.2003, and 27.01.1994 placing at
their appropriate place as per their original seniority assigned vide
Office Order dated 10.02.1995.
(c) Questioning the said order of seniority, the respondents herein made
several verbal representations to the authorities for promotion
retrospectively, but no steps have been taken by them. Challenging the
seniority list, the respondents filed O.A. No. 203 of 1997 before the
Central Administrative Tribunal, Calcutta Bench, Kolkata. By order dated
09.05.2005, the Tribunal allowed the application filed by the respondents
herein with a direction to the Department (appellants herein) to grant them
their due seniority from the date of their appointment on their respective
posts in DGS&D prior to their transfers to the Railways and they shall also
be entitled to the benefits of next below rule with all consequential
benefits except any arrear that may be payable shall be restricted to from
the date of filing of the application and gave three months time to comply
with the order. By office order dated 20.06.2005, the Chief Personnel
Officer informed the respondents herein that their names do not come under
the zone of consideration as per the seniority list published on 27.01.2004
and, therefore, they are not considered for the post of O.S. Grade II on
restructuring basis.
(d) Not satisfied with the order passed by the Chief Personnel Officer,
the respondents filed CPC No. 113 of 2005 (OA No.203 of 1997) before the
Tribunal. The Tribunal, by order dated 07.04.2008 observed that there is
difference of three years in the matter of promotion and granted two
months' time to the Department to comply with the directions and directed
to list the matter on 17.06.2008 for orders. As the appellants herein
were not fully implementing the orders, the Tribunal, vide order dated
23.03.2010, directed for issuance of Rule 8 notice to the
contemnors/appellants herein returnable after two months and directed to
list the matter for orders on 03.05.2010. On 30.03.2010, counsel for the
contemnors/appellants herein appeared before the Tribunal and placed on
record various documents to show that the orders were, in fact, complied
with. Not satisfied with the report filed by the Department, the Tribunal
passed the impugned order dated 11.06.2010 directing the
contemnors/appellants herein to present before it to receive charges of
contempt and adjourned the matter for 30.07.2010. (e) Against the said
order, the appellants/Contemnors preferred this appeal by way of special
leave before this Court.
4) Heard Mr. Mohan Jain, learned Additional Solicitor General for the
appellants and Mr. R.K. Gupta, learned counsel for the respondents.
5) At the outset, Mr. R.K. Gupta, learned counsel for the respondents
raised a preliminary objection as to the maintainability of the present
appeal by the appellants before this Court without exercising the remedy
before the High Court for which he relied on the decision of the
Constitution Bench of this Court in L. Chandra Kumar vs. Union of India &
Ors., (1997) 3 SCC 261. On the other hand, Mr. Mohan Jain, learned
Additional Solicitor General, by drawing our attention to Section 19 of the
Contempt of Courts Act, 1971, submitted that the present appeal by way of
special leave is maintainable and is the appropriate remedy for the
appellants. In this regard, he heavily relied on a three-Judge Bench
decision of this Court in T. Sudhakar Prasad vs. Government of A.P. & Ors.,
(2001) 1 SCC 516 which interpreted the decision of the Constitution Bench
of this Court rendered in L. Chandra Kumar (supra).
6) Before going into the merits of the impugned order of the Tribunal,
let us resolve the maintainability of the present appeal.
7) After the order dated 09.05.2005 passed by the Tribunal in O.A. No.
203 of 1997, the respondents, who are the beneficiaries of that order,
filed C.P.C. No. 113 of 2005 before the Central Administrative Tribunal,
Calcutta Bench contending that the order has not been implemented in full
by the appellants herein. After considering its earlier order dated
09.05.2005 and the relief granted to the personnel, the Tribunal, by the
impugned order, directed the contemnors (appellants herein) to be present
in Court on the next date of hearing and to receive the charges of
contempt. It is clear from the above direction that the said order came to
be passed in a contempt proceeding. In such circumstances, the aggrieved
parties are at liberty to approach this Court without exercising the remedy
before the High Court, as observed in L. Chandra Kumar (supra).
8) In L. Chandra Kumar (supra), the Constitution Bench with regard to
approaching the High Court against the order of the CAT has held as under:
"91. It has also been contended before us that even in dealing with
cases which are properly before the Tribunals, the manner in which
justice is dispensed by them leaves much to be desired. Moreover, the
remedy provided in the parent statutes, by way of an appeal by special
leave under Article 136 of the Constitution, is too costly and
inaccessible for it to be real and effective. Furthermore, the result
of providing such a remedy is that the docket of the Supreme Court is
crowded with decisions of Tribunals that are challenged on relatively
trivial grounds and it is forced to perform the role of a first
appellate court. We have already emphasised the necessity for ensuring
that the High Courts are able to exercise judicial superintendence
over the decisions of the Tribunals under Article 227 of the
Constitution. In R.K. Jain case, after taking note of these facts, it
was suggested that the possibility of an appeal from the Tribunal on
questions of law to a Division Bench of a High Court within whose
territorial jurisdiction the Tribunal falls, be pursued. It appears
that no follow-up action has been taken pursuant to the suggestion.
Such a measure would have improved matters considerably. Having regard
to both the aforestated contentions, we hold that 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.
92. We may add here that under the existing system, direct appeals
have been provided from the decisions of all Tribunals to the Supreme
Court under Article 136 of the Constitution. In view of our above-
mentioned observations, this situation will also stand modified. In
the view that we have taken, no appeal from the decision of a Tribunal
will directly lie before the Supreme Court under Article 136 of the
Constitution; but instead, the aggrieved party will be entitled to
move the High Court under Articles 226/227 of the Constitution and
from the decision of the Division Bench of the High Court the
aggrieved party could move this Court under Article 136 of the
Constitution."
It is clear from the above dictum that no appeal from the decision of the
Tribunal will directly lie before this Court under Article 136 of the
Constitution of India, but instead, the aggrieved party has to move the
High Court under Articles 226/227 of the Constitution and thereafter from
the decision of the Division Bench of the High Court, the aggrieved parties
are free to approach this Court. In view of the above direction, though
the learned counsel for the respondents is right in contending the same,
however, the Constitution Bench had no occasion to consider the
order/orders passed by the CAT in contempt proceedings. This aspect has
been considered by the subsequent three-Judge Bench decision of this Court
in T. Sudhakar Prasad (supra). The question posed before the Court was
that whether the Administrative Tribunals set up under the provisions of
the Administrative Tribunals Act, 1985, do they or do they not have power
to punish for their contempt? After going into the decision in L. Chandra
Kumar (supra) in detail, this Court has concluded as under:
"17. It is thus clear that the Constitution Bench has not declared the
provisions of Article 323-A(2)(b) or Article 323-B(3)(d) or Section 17
of the Act ultra vires the Constitution. The High Court has, in its
judgment under appeal, noted with emphasis the Tribunal having been
compared to like "courts of first instance" and then proceeded to hold
that the status of Administrative Tribunals having been held to be
equivalent to courts or Tribunals subordinate to the High Court the
jurisdiction to hear their own contempt was lost by the Administrative
Tribunals and the only course available to them was either to make a
reference to the High Court or to file a complaint under Sections 193,
219 and 228 IPC as provided by Section 30 of the Act. The High Court
has proceeded on the reasoning that the Tribunal having been held to
be subordinate to the High Court for the purpose of Articles 226/227
of the Constitution and its decisions having been subjected to
judicial review jurisdiction of the High Court under Articles 226/227
of the Constitution, the right to file an appeal to the Supreme Court
against an order passed by the Tribunal punishing for contempt under
Section 17 of the Act was defeated and on these twin grounds Section
17 of the Act became unworkable and unconstitutional. We do not find
any basis for such conclusion or inference being drawn from the
judgments of this Court in the cases of Supreme Court Bar Assn. or L.
Chandra Kumar or any other decision of this Court. The Constitution
Bench has in so many words said that the jurisdiction conferred on the
High Courts 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 the 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 supplementally 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 Article 323-A specifically
empowers Parliament to enact a law specifying the jurisdiction and
powers, including the power to punish for contempt, being conferred on
the 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 matters 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 now 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 the
jurisdiction of the High Court under Articles 226/227 of the
Constitution subject to the well-established rules of self-restraint
governing the discretion of the High Court to interfere with the
pending proceedings and upset the interim or interlocutory orders of
the Tribunals. However any order or decision of the Tribunal punishing
for contempt shall be appealable only to the Supreme Court within 60
days from the date of the order appealed against in view of the
specific provision contained in Section 19 of the Contempt of Courts
Act, 1971 read with Section 17 of the Administrative Tribunals Act,
1985. Section 17 of the Administrative Tribunals Act is a piece of
legislation by reference. The provisions of the Contempt of Courts Act
are not as if lifted and incorporated in the text of the
Administrative Tribunals Act (as is in the case of legislation by
incorporation); they remain there where they are, yet while reading
the provisions of the Contempt of Courts Act in the context of
Tribunals, the same will be so read as to read the word "Tribunal" in
place of the word "High Court" wherever it occurs, subject to the
modifications set out in Section 17 of the Administrative Tribunals
Act. Section 19 of the Contempt of Courts Act, 1971 provides for
appeals. In its text also by virtue of Section 17 of the
Administrative Tribunals Act, 1985 the word "High Court" shall be read
as "Tribunal". Here, by way of abundant caution, we make it clear that
the concept of intra-Tribunal appeals i.e. appeal from an order or
decision of a Member of a Tribunal sitting singly to a Bench of not
less than two Members of the Tribunal is alien to the Administrative
Tribunals Act, 1985. The question of any order made under the
provisions of the Contempt of Courts Act, 1971 by a Member of the
Tribunal sitting singly, if the rules of business framed by the
Tribunal or the appropriate Government permit such hearing, being
subjected to an appeal before a Bench of two or more Members of the
Tribunal therefore does not arise. Any order or decision of the
Tribunal punishing for contempt is appealable under Section 19 of the
Act to the Supreme Court only. The Supreme Court in the case of L.
Chandra Kumar has nowhere said that orders of the Tribunal holding the
contemner guilty and punishing for contempt shall also be subject to
judicial scrutiny of the High Court under Articles 226/227 of the
Constitution in spite of remedy of statutory appeal provided by
Section 19 of the Contempt of Courts Act being available. The
distinction between orders passed by the Administrative Tribunal on
matters covered by Section 14(1) of the Administrative Tribunals Act
and orders punishing for contempt under Section 19 of the Contempt of
Courts Act read with Section 17 of the Administrative Tribunals Act,
is this: as against the former there is no remedy of appeal
statutorily provided, but as against the latter statutory remedy of
appeal is provided by Section 19 of the Contempt of Courts Act
itself." (Emphasis supplied)
9) In view of the clarification by the three-Judge Bench of this Court in
T. Sudhakar Prasad (supra), we reject the objection as to the
maintainability of the present appeal and hold the same as maintainable.
10) Now let us consider the merits of the impugned order. Since we are
concerned about the question as to whether the directions of the CAT have
been implemented or not, there is no need to refer all the factual details
once again. The operative part of the directions of the order dated
09.05.2005 of the CAT reads as under:
"6. In this view of what has been said and discussed above, this
original application is allowed with a direction to the respondents to
grant them their due seniority from the date of their appointment on
their respective posts in DGS&D prior to their transfers to the
present organization and they shall also be entitled to the benefits
of next below rule with all consequential benefits except any arrear
that may be payable shall be restricted to from the date of filing of
this original application. However, in case the applicants have
already been granted the due benefits, the details of the same shall
be furnished to the applicants. This order shall be complied within a
period of three months from the date of the receipt of a copy of this
order. However, there shall be no order as to costs."
Since according to the respondents, the said directions have not been
complied with, they filed contempt petition being C.P.C. No. 113 of 2005
before the CAT. It is useful to refer that pursuant to the representations
made by the respondents herein, in terms of the directions of the CAT dated
09.05.2005, S.E. Railways, who is the relevant authority, by communication
dated 20.06.2005 intimated the following information to all the respondents
herein. The same are as follows:
"SOUTH EASTERN RAILWAY
CPO'S OFFICE/GRC
Date: 20.6.2005
No. P/Stores/CAT/CAL/OA 203-97
To
1. Smt. Shefali Sengupta, Head Clerk/COS's Office/GRC
2. Sri Probir Kumar Nath, Head Clerk/COS's Office/GRC
3. Sri Apurba Kumar Mukherjee. Sr. Clerk/COS's Office/GRC
(THROUGH Sr. MATERIAL MANAGER (M&P)/GRC
Ref :
1) COS/GRC's letter No. S/58/A/14/Pt.III/Gr.C/78 dated 27.5.2005
2) CAT/CAL's order dated 9.5.05 in OA No. 203/1997
In response to representation dated 8.6.2005 submitted by the
above Applicants and in compliance of Hon'ble CAT/KOL's order dated
9.5.2005 in OA No. 203/1997 the following information/compliance
report is furnished to the representationist for their appraisal.
That in terms of this office order No. OP/Stores/39A dated
10.2.95 their absorption and seniority case had been settled according
to Rly. Board's guidelines communicated to this Rly. Vide their letter
No. E(NG) I/92/TR/7 dated 18.10.94 assigning their seniority from the
date of regular promotion/appointment to the relevant grade they were
holding at the time of transfer to this Railway as follows:
|S.N | | | | |
|S.No. |Name |Designation & |Date of |Date of |
| | |Scale |appointment |promotion to |
| | | | |the next |
| | | | |grade |
|1 |Smt. Shefali |Sr. Clerk |30.5.1975 |27.2.82 |
| |Sengupta |(1200-2040) | | |
|2 |Sr. Probir Kr. Nath|-do- |6.2.1976 |1.1.1983 |
|3 |Sri Apurba Kr. |Jr. Clerk |17.11.1982 | |
| |Mukherjee |(950-1500) | | |
|4 |Kum. Khama Banerjee|Peon (750-940) |31.3.1983 | |
Based on the assignment of seniority, they were given promotion to the next
post of Hd. Clerk and Sr. Clerk vide OO No. P/Stores/197 dated 23.6.95 and
P/Stores/315 dt. 31.10.95 respectively.
Subsequently their seniority was published in the grade of Head Clerk
and Senior Clerk vide order No. P/Stores/Revised Seniority/2000 dated
28.07.2000, P/Stores/Seniority/COS dated 12.07.2001 and P/Stores/Seniority
list/COS 29.10.2003, P/Stores/Seniority List/COS dated 27.01.1994 placing
at their appropriate place as per their original seniority assigned vide
Office Order dated 10.02.1995.
Thus it is clear from the above position that their date of promotion
in their earlier cadre of DGS&D has been protected and they have been
assigned seniority in Railway considering length of service in the grade of
DGS&D.
In the seniority list dated 27.1.2004, Smt. Sengupta and Sri Nath are
at S.Nos. 20 & 21 in the present selection staff in general seniority upto
9 has been called 5 persons senior to them in the general seniority are
also not called because in the present selection of SO Gr.II, COS's office
in scale Rs.5500-9000/- (RSRP) their name do not come under the zone of
consideration as per the seniority list published in the year mentioned
above. Hence they are not considered for the post of OS Gr. II on
restructuring basis.
The representationists may be informed accordingly serving one copy of
this letter to each.
Sd/-
(B.N.
SOREN)
Sr. Personnel Officer
(W)
Copy to: COS/GRC for information and necessary action.
Sd/-
For Chief Personnel Officer"
11) Though the CAT has expressed that the said compliance is not in tune
with its order dated 09.05.2005, as rightly pointed out by Mr. Mohan Jain,
learned ASG, that as per the order, promotion was granted to the
respondents from the earliest date which is admissible as per rules and as
provided by the Railway Board. As pointed out by the appellants, the
Tribunal has ignored the fact that the consequential benefits at par with
juniors have been complied with properly. This was explained as under:
"There was difference of 3 years in the matter of promotion for
Respondent Nos. 1 & 2. In terms of Railway Boards Lr. No. E(NG)
1/9/2Tr/7 dated 18.10.1994 Smt. Shefali Sengupta and Prabir Kumar Nath
were granted seniority of the post of Sr. Clerk w.e.f. 1.1.83 and Sri
Apurba Kumar Mukherjee was granted seniority of the post of Jr. Clerk
w.e.f. 27.11.82 i.e. the date of promotion/appointment at DGS&D.
In terms of Railway Board's Lr. No. E(NG) I-96/SRG/22 dated 30.10.96
the seniority assigned to DGS&D transferors on absorption in terms of
Board's letter dated 18.10.1994 would be operative in respect of
promotions made/to be made after the date of their absorption and that
the same would not affect the promotions already ordered on regular
basis prior to the date of such absorption.
Since Smt. Shefali Sengupta and Prabir Kumar Nath joined as Sr. Clerk
on 24.4.92 are not entitled for a promotion prior to 24.4.92 and
accordingly they were given promotional benefits at par with their
Junior Sri Subrata Saha who was Sr. Clerk on the date of their joining
on 24.4.92. Accordingly, they were promoted to the post of Head Clerk
at par with their Junior Sri Saha w.e.f. 30.9.92. Since Sri S.K.
Talukdar had already been promoted as OS-II prior to their joining the
consequential benefit of promotion would not be extended in terms of
Board's Lr. Dated 30.10.96. Similarly Maniral Islam whose date of
appointment to Sr. Clerk on 1.2.88 S.E. Rly was 3.5.84 promoted to Sr.
Clerk on 1.2.88 prior to joining of Apurba Kr. Mukherjee on 24.4.92.
Hence Sri Mukherjee will not get the benefit at par with Maniral Islam
as per Board's letter dated 30.10.96, thus the order has been fully
complied with and there is no difference in promotion for respondent
Nos. 1 & 2."
12) In addition to the same, the appellants have also pointed out that
the Tribunal wrongly misunderstood that the claim of respondent Nos. 1 & 2
for further promotion with Sri Talukdar, who was promoted as Sr. Clerk on
14.02.83 which is unsustainable as he had been promoted to the higher grade
of Head Clerk prior to their joining the department and those particulars
are available in the office records. It is also pointed out that the
seniority of the respondents has been protected and granting promotion to a
grade to which they had not yet obtained in their parent department would
not only deprive promotional benefit to those who have been serving in the
department but would involve the promotion policy being revised. While
considering the seniority or promotion, the Court cannot go into and
examine the same contrary to the Rules/Policy applicable to the persons
concerned framed by the Government.
13) In the light of the above discussion and of the factual information
furnished, we are unable to sustain the impugned direction of the Tribunal
in the order dated 11.06.2010, consequently the same is set aside.
Inasmuch as the appellants have complied with the earlier order of the
Tribunal dated 09.05.2005, the contempt petition is dismissed. The appeal
is allowed. No order as to costs.
.................................................
J.
(P. SATHASIVAM)
...............................................
J.
(J. CHELAMESWAR)
NEW DELHI;
MARCH 30, 2012.
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