Anupam Shrivastava & Keshav Rao v. Chandrakumar O.B. & Vipal Prem & Sandeep P.S. (BSNL)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 26TH DAY OF AUGUST 2020 / 4TH BHADRA, 1942 OP (CAT).No.25 OF 2019** **AGAINST THE ORDER IN C.P.NO.56/2018 IN OA 508/2018 DATED 07-01-2019 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONERS/RESPONDENTS IN C.P:** - **1 SHRI.ANUPAM SHRIVASTAVA CHAIRMAN AND MANAGING DIRECTOR, BHARATH SANCHAR NIGAM LTD., HARISH CHANDRA MATHUR LANE, JANPATH, NEW DELHI - 110 001.** - **2 KESHAV RAO, SENIOR GENERAL MANAGER, PERSONNEL, BSNL, 4TH FLOOR, BHARATH SANCHAR BHAVAN, JANPATH NEW DELHI - 110 001.** **BY ADVS.K.K.RAI (SR) SRI.GEORGE KURUVILLA(ALAPPUZHA)** ## **RESPONDENTS/PETITIONERS IN C.P.:** - **1 CHANDRAKUMAR.O.B., S/O.BABU, JTO FTTH, THRISSUR, O/O. DIVISIONAL ENGINEER BROAD BAND, RESIDING AT OORKOLI HOUSE, LOKAMALESWARAM, KODUNGALLUR, THRISSUR - 680 664.** - **2 VIPAL PREM, S/O.R.RAMACHANDRAN NAIR, JTO NIB, O/O DIVISIONAL ENGINEER NIB, KAITHAMUKKU, THRIVANDRUM, RESIDING AT 'INDULEKHA' TC 6/993, PRA-30, PADAYANI ROAD, VATTIYOORKAVU P.O., TRIVANDRUM - 695 013.** O.P.(CAT)NO.25 of 2019 2 **3 SANDEEP P.S., S/O.SREENIVASAN P.R., JTO MAINTENANCE, THRISSUR, RESIDING AT PUNNUR, KALARICKAL, DWARAKA ESTATE, PERINGANDUR P.O., THRISSUR - 680 596.** **R1 BY ADV. SRI.M.R.RAJENDRAN NAIR (SR.) R1-3 BY ADV. SRI.M.R.HARIRAJ R1-3 BY ADV. SRI.K.RAJAGOPAL R1-3 BY ADV. SMT.L.LAKSHMI OMANAKUTTAN** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 26-08-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(CAT)NO.25 of 2019 3 **“C.R.”** ## **JUDGMENT** ## **Ravikumar, J.** The captioned Original Petition is filed against the order dated 7.1.2019 in C.P.No.56 of 2018 in O.A.No.508 of 2018 of the Central Administrative Tribunal, Ernakulam. As per the said order, which is produced as Ext.P11, the Tribunal dismissed M.A.No.1180 of 2018 filed with the prayer to dispense with the personal appearance of the petitioners herein, on 27.8.2018 and on subsequent posting dates and M.A.No.21 of 2019 filed with the prayer to drop the contempt proceedings in C.P.No.56 of 2018 initiated against them and to discharge them from the said contempt of court proceedings. Further, it was ordered thereunder thus:- “Heard the learned counsel appearing on both sides. We are not inclined to allow the aforesaid MAs. Hence both MAs are rejected. We are of the view that contempt proceedings are to be initiated against the misc. applicants for committing contempt of court. Registry is directed to frame charges under Rule 13(b)(i) of CAT (Contempt of Courts) Rules, 1992 and furnish to the respondents a copy of the charge framed. Post the matter before Court on 24.1.2019 for proceeding as per sub Sections (c), (d) & (e) of the aforesaid Rules.” O.P.(CAT)NO.25 of 2019 4 Though the petitioners marked Ext.P11 in this proceedings as true copy of the order dated 7.1.2019 in C.P.No.56 of 2018 in O.A.No.508 of 2018 of the Tribunal and separate charges framed against both of them what is actually produced is only the copy of the aforesaid order dated 7.1.2019 and the charge framed only against the 2[nd] petitioner herein. Be that as it may, we will now consider the contentions raised against Ext.P11 order. 2. Heard the learned Senior Counsel Sri.K.K.Rai appearing for the petitioners, the learned Senior Counsel Sri.M.R.Rajendran Nair for the first respondent and also Adv.Sri.M.R.Hariraj for respondents 2 and 3. 3. The petitioners herein are respectively the Chairman and Managing Director and the then Senior General Manager (Personnel) of Bharat Sanchar Nigam Limited (BSNL). The respondents herein filed O.A.No.508 of 2018 before the Central Administrative Tribunal seeking quashment of Annexure-A4 letter dated 5.6.2018 and Annexure-A6 letter dated 12.6.2018, in Ext.P1. The further prayer therein was to direct the respondents not to make any regular promotions in cadre of Sub Divisional Engineers (SDE) without publishing fresh All India Eligibility List of JTOs for promotion as SDE in accordance with the directions of this Court in Annexure-A3 and further to make temporary promotions in the seniority quota of SDE pending publication of such list O.P.(CAT)NO.25 of 2019 5 only by equally distributing the vacancies among promotees and direct recruits. In the said O.A. the Tribunal passed an interim order on 14.6.2018. The relevant portion of the said order dated 14.6.2018 reads thus:- “We have considered the respective pleadings and also examined the judgement of the Hon'ble High Court in depth. It is noted that six months of time from the date of receipt of the order has been allowed to the respondent organisation to finalise the list in accordance with the ratio principle already stated. This obviously has not taken place yet as the order itself is dated 5[th] June only and the respondent organisation is setting out to implement promotions from the list which is already available at annexure A.1. B.S.N.L. is certainly entitled to take time to finalise the same. However, the direction of the Hon'ble High Court is quite clear on how vacancies which are now existing are to be filled up in the interim period. To quote the order of the High Court again: “Needless to say that taking into account the dearth of sufficient personnel to man the post of SDE, it will be open to the official respondents to effect promotions against the unfilled vacancies of SDE equally distributing the vacancy among the senior most directly recruited JTOs and senior most promotee JTOs subject to finalisation of the final eligibility list of JTOs in the manner mentioned hereinbefore.” By way of an interim order this Tribunal directs that any promotion done during the period when the list is in the process of finalisation will be strictly in accordance with the directions contained in the judgement of the Hon'ble High Court as quoted above. Post on 29.06.2018. Issue a copy of this order to the learned counsel appearing on both sides.” O.P.(CAT)NO.25 of 2019 6 4. Contempt Petition No.56 of 2018 was filed before the Tribunal by the respondents herein alleging willful disobedience with the said interim order dated 14.6.2018 passed in O.A.No.508 of 2018. On 24.7.2018 the Tribunal passed Ext.P6 order finding that the petitioners herein are guilty of gross contempt of the directions of the Tribunal in the said interim order dated 14.6.2018 in O.A.No.508 of 2018 and the judgment of this Court in O.P.(CAT)No.126 of 2015. Ext.P6 order was challenged by the petitioners herein who were found guilty, before this Court by filing O.P.(CAT)No.158 of 2018. The said original petition was disposed of as per Ext.P7 judgment dated 17.8.2018. Pursuant to Ext.P7 M.A.No.1180 of 2018 was filed in C.P.No.56 of 2018 by the petitioners for exemption from personal appearance and for permission to appear through counsel. The petitioners would contend that on 3.12.2018, after exempting personal appearance till the next date of hearing, the Tribunal again ordered notice (Ext.P9) under Rule 8 of the Rules to the petitioners permitting them to appear through counsel and also requiring them to file reply affidavits in the contempt petition under Rule 11 of the Rules. C.P.No.56 of 2018 was posted to 18.12.2018. The petitioners sought further time for filing reply affidavit and time till 31.12.2018 was granted therefor. The case was then posted to 7.1.2019. On 1.1.2019 the petitioners herein filed M.A.No.21 O.P.(CAT)NO.25 of 2019 7 of 2019 seeking discharge/closure of contempt proceedings initiated against them. As noticed hereinbefore, on 7.1.2019 the Tribunal passed Ext.P11 order in C.P.No.56 of 2018 in O.A.No.508 of 2018 and this original petition has been filed challenging the same. 5. The petitioners assail Ext.P11, mainly alleging blatant violation of the procedures under Rule 13 of the Contempt of Courts (C.A.T) Rules, 1992 (for short 'the Rules'). The said contention is founded on the indisputable fact obtained from Ext.P11 order dated 7.1.2019 whereby M.A.Nos.1180/2018 and 21/2019 in C.P.No.56/2018 were rejected. As noticed hereinbefore, as per Ext.P11 it was ordered thus:- “Registry is directed to frame charges under Rule 13(b) (i) of CAT (Contempt of Courts) Rules, 1992 and furnish to the respondents a copy of the charge framed.” It is also contended that Ext.P11 order did not reflect as to how the Tribunal had arrived at the satisfaction that there is prima facie case for framing charges. In short, according to the petitioners, after considering the reply affidavit filed by the petitioners in terms of the provisions under Rule 11 the Tribunal alone could have framed charges if it was satisfied that a prima facie case has been made out to proceed with. These contentions were raised in ground (B) of the original petition. That apart, it is stated in ground (C) that the review petitions filed against Annexure-A3 judgment viz., R.P.No.894/2018 and O.P.(CAT)NO.25 of 2019 8 connected matters are pending before this Court and therefore, the Tribunal should not have proceeded with the contempt proceedings pending the said review petitions. In this regard, we are of the view that mere pendency of review petitions cannot take away the power of the Tribunal to initiate and proceed in terms of the provisions under the Rules if there is no stay for such proceedings. In fact, all the aforementioned review petitions were dismissed by this Court as per order dated 24.8.2020. We have carefully gone through the other grounds raised in this original petition and we are of the view that they are all pertaining to the merits of the case. At this stage, we are of the considered view that such contentions cannot be entertained by this Court. 6. The petitioners raised yet another contention. According to them, from the facts and circumstances of the case it is clear that Annexure-A3 judgment of this Court and Ext.P11 interim order of the Tribunal are open to different interpretations and in such circumstances for the steps taken bonafidely by the BSNL for promotion proceedings ought not to have been initiated for contempt of Court. To buttress the said contention the learned Senior Counsel relied on a decision of the Hon'ble Apex Court in **Anil Ratan Sarkar and Others** v. **Hirak Ghosh and Others** reported in **(2002) 4 SCC 21** . Upon going through the judgment and taking note of the dictum laid down therein we are of the O.P.(CAT)NO.25 of 2019 9 considered view that this is an issue which the petitioners may perhaps be able to take up in the pending contempt petition and certainly, this cannot be an issue which should be gone into by this Court at this juncture. We have no doubt that if the question is properly raised it would be addressed by the Tribunal at the appropriate stage. 7. We will now consider the contention regarding the procedural irregularity raised by the petitioners based on the provisions under Rule 13 of the Rules and the factual position revealed from Ext.P11 that as per the same the Tribunal had directed the registry to frame charges and consequently, they were framed by the Registry. To appraise the said contention it is only appropriate to refer to Rule 13 of the Rules:- “ **13. Hearing of the case and trial** .-Upon consideration of the reply filed by the respondent and after hearing the parties,- (a) ….................................................... (b) if the respondent does not admit that he has committed contempt, the Tribunal may- (i) if it is satisfied that there is a prima facie case proceed to frame the charges in Form No.III (subject to modification or addition by the Tribunal at any time);” The expression “Tribunal” was defined under Section 2(g) of the Rules as hereunder:- O.P.(CAT)NO.25 of 2019 10 “2.(g) “Tribunal” means the Central Administrative Tribunal constituted under the Administrative Tribunals Act, 1985 (13 of 1985) or the Bench thereof, where the proceedings are taken congnizance of;” 8. A combined reading of Rules 2(g) and 13(b)(i) of the Rules would undoubtedly reveal that the question of framing charges would arise only if upon consideration of the reply filed by the respondents and after hearing the parties the Tribunal is satisfied regarding the existence of a prima facie case. Indubitably, in case the Tribunal arrives at such satisfaction, in terms of the said provisions, it is for the Tribunal to frame charge and at any rate, there is no provision in 'the Rules' which empowers the Registry of the Tribunal to frame charge in a contempt petition even on direction by the Tribunal. In other words, the aforesaid provision would undoubtedly make it clear that satisfaction regarding the existence of prima facie case should be that of the Tribunal and upon such satisfaction, it is for the Tribunal to frame charge and that judicial function cannot be delegated to the Registry. In the case on had, evidently, the Tribunal issued direction to the Registry to frame charges against the petitioners herein and then to furnish the charges to them. This is certainly impermissible and therefore, a clear and fatal infraction of the provisions of 'the Rules'. We have also taken note of the fact that the petitioners have a specific case that the reply affidavits filed by them in the matter were not taken O.P.(CAT)NO.25 of 2019 11 into consideration in terms of the provisions under Rule 11 of the Rules. Rule 13 of the Rules, as extracted above, makes it mandatory for the Tribunal to consider the reply filed by the respondents in a contempt petition and also to hear the parties for satisfying whether a prima facie case exists to frame charges. In the light of the aforesaid discussion and reasons Ext.P11 including the charges framed against the petitioners pursuant to the order in Ext.P11 dated 7.1.2019 are set aside. The original petition is disposed of with a direction to the Tribunal to consider the contentions raised by the petitioners herein/respondents therein in the reply filed by them, in terms of Rule 11 of the Rules and also to hear them as provided in Rule 13 of the Rules and subject to such consideration to proceed with the case in accordance with the provisions of the Rules, in case it is necessary to do so. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **ANU SIVARAMAN Judge** TKS O.P.(CAT)NO.25 of 2019 12 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION NO.508/18 FILED BY THE RESPONDENTS BEFORE THE CAT.** - **EXHIBIT P2 TRUE COPY OF THE CONTEMPT PETITION NO.56/2018 FILED BEFORE THE CAT.** - **EXHIBIT P3 TRUE COPY OF MA NO.708/2018 FOR STAY FILED BEFORE THE CAT.** - **EXHIBIT P4 TRUE COPY OF THE STATEMENT FILED ON BEHALF OF THE RESPONDENTS 1 TO 3 TO MA FOR STAY.** - **EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT FILED BY THE PETITIONERS IN REPLY TO THE CONTEMPT PETITION.** - **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 24/7/18 IN C.P.NO.56/2018 IN OA 508/2018 OF THE CAT, ERNAKULAM BENCH.** - **EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 17/8/18 IN O.P. (CAT) 158/2018 OF THE HON'BLE HIGH COURT.** - **EXHIBIT P8 TRUE COPY OF MA NO.1180/2018 FOR EXEMPTION FROM PERSONAL APPEARANCE FILED BY THE PETITIONERS.** - **EXHIBIT P9 TRUE COPY OF THE NOTICE DATED 12/12/2018 ISSUED UNDER RULE (8) OF THE CAT (CONTEMPT OF COURT) RULES 1992.** - **EXHIBIT P10 TRUE COPY OF MA NO.21/2019 FOR DISCHARGE/CLOSURE OF THE CONTEMPT PROCEEDINGS FILED BY THE PETITIONERS.** - **EXHIBIT P11 I) TRUE COPY OF ORDER DATED 7/1/2019 IN CP NO.56/2018 IN OA 508/2018 OF THE CAT, ERNAKULAM BENCH. II) SEPARATE CHARGE DATED 10/01/2019 WITH RESPECT TO PETITIONER NO. 1 & 2.** TKS