R. Mohajan & Ors.
Vs. Shefali Sengupta & Ors.
[Civil Appeal No.
3297 of 2012 arising out of SLP (C) No. 21096 of 2010]
J U D G M E N T
P. Sathasivam, J.
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.
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
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 maybe 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
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 dated09.05.2005,
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 27.01.2004and, 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 dated23.03.2010,
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
e. Against the said order,
the appellants/Contemnors preferred this appeal by way of special leave before
Mr. Mohan Jain, learned Additional Solicitor General for the appellants and Mr.
R.K. Gupta, learned counsel for the respondents.
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).
going into the merits of the impugned order of the Tribunal, let us resolve the
maintainability of the present appeal.
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 dated09.05.2005 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).
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 afore stated
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 Courtin 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 there from. 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
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
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
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
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.
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 dated09.05.2005 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.
to the respondents, the said directions have not been complied with, they filed
contempt petition being C.P.C. No. 113 of 2005before 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 dated09.05.2005, 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:
Shefali Sen gupta, Head Clerk/COS's Office/GRC
Probir Kumar Nath, Head Clerk/COS's Office/GRC
Apurba Kumar Mukherjee. Sr. Clerk/COS's Office/GRC (THROUGH Sr. MATERIAL
letter No. S/58/A/14/Pt.III/Gr.C/78 dated 27.5.2005
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
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:
of promotion to the next grade
Probir Kr. Nath
Apurba Kr. Mukherjee
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.
seniority was published in the grade of Head Clerk and Senior Clerk vide order No.
P/Stores/Revised Seniority/2000 dated28.07.2000, 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 upto9 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.
representationists may be informed accordingly serving one copy of this letter
Personnel Officer(W)Copy to: COS/GRC for information and necessary action.
Chief Personnel Officer"
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:
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
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.
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."
addition to the same, the appellants have also pointed out that the Tribunal
wrongly misunderstood that the claim of respondent Nos. 1 & 2for further
promotion with Sri Talukdar, who was promoted as Sr. Clerk on14.02.83 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
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
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. In as much 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.