K.R.K. Menon v. Central Administrative Tribunal, Ernakulam Bench and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE A.M.BABU THURSDAY, THE 5TH DAY OF JULY 2018 / 14TH ASHADHA, 1940 OP (CAT).No. 109 of 2018 ------------------------------O.A.381/2012 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH ## PETITIONER K.R.K.MENON, AGED 66 YEARS,S/O.U.P.K.MENON,(RETD.MANAGER/CENTRE FOR DEVELOPMENT OF ADVANCED COMPUTING (C-DAC)RESIDING AT:VII/6B, SREELAKAM, EDAYAPURAM,ALUVA-683101, ERNAKULAM DISTRICT. BY ADVS.SRI.T.C.GOVINDA SWAMY SMT.KALA T.GOPI RESPONDENTS: ## 1. PROF. RAJAT MOONA(AGE & FATHER'S NAME NOT KNOWN TO THE PETITIONER), DIRECTOR GENERAL,CENTRE FOR DEVELOPMENT OF ADVANCED COMPUTING(C-DAC)CORPORATE OFFICE,AGRICULTURE COLLEGE CAMPUS,NEAR DISTRICT INDUSTRIES CENTRE,SHIVAJI NAGAR, PUNE-411005. ## 2. SHRI RAJI VARGHESE, (AGE & FATHER'S NAME NOT KNOWN TO THE PETITIONER) HEAD CORPORATE HRD,CENTRE FOR DEVELOPMENT OF ADVANCED COMPUTING (C-DAC)CORPORATE OFFICE,AGRICULTURE COLLEGE CAMPUS,NEAR DISTRICT INDUSTRIES CENTRE, SHIVAJI NAGAR, PUNE-411005. ## 3. SHRI B.RAMANI, (AGE & FATHER'S NAME NOT KNOWN TO THE PETITIONER), EXECUTIVE DIRECTOR,CENTRE FOR DEVELOPMENT OF ADVANCED COMPUTING (C-DAC)VELLAYAMBALAM,THIRUVANANTHAPURAM-695033. R1-R3 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 05-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 109 of 2018 (Z) ## APPENDIX ## EXHIBITS EXHIBIT P1 TRUE COPY OF ORDER DATED 30 SEP 2015 IN OA.NO.381/2012 RENDERED BY THE LEARNED TRIBUNAL. EXHIBIT P2 TRUE COPY OF JUDGMENT DATED 27TH JANUARY 2016 IN OP(CAT)NO.5/2016 RENDERED BY THIS HON'BLE COURT. EXHIBIT P3 TRUE COPY OF CONTEMPT PETITION (CIVIL)NO.180/00004/2017 ALONG WITH ITS ANNEXURES,FILED BEFORE THE LEARNED TRIBUNAL. EXHIBIT P4 TRUE COPY OF CONSEL STATEMENT DATED 22 JUNE 2017 FILED BY IN CONTEMPT PETITION EXHIBIT P5 TRUE COPY OF ORDER DATED 23 JUNE 2017 IN CP(C)NO.180/OOOO4/2017 IN OA NO.381/2012 RENDERED BY THE LEARNED TRIBUNAL. EXHIBIT P6 TRUE COPY OF JUDGMENT DATED 04 NOV 2016 IN OP(CAT)NO.284/16,RENDERED BY THIS HON'BLE COURT. /True Copy/ P.S.To Judge ## C.T.RAVIKUMAR & A.M.BABU, JJ. , - - - - - - - - - - - - - ## O.P.(CAT).109 of 2018 - - - - - - - - - - - - - - Dated : 5[th] July, 2018 - - - - - - - - - - - - - ## JUDGMENT Ravikumar, J 1. A question of seminal importance arises for consideration in this original petition. It is filed challenging order dated 23.6.2017 passed by the Central Administrative Tribunal, Ernakulam Bench in CP(C) No.4/2017 in O.A No.381/2012. Essentially the said contempt petition was filed by the petitioner herein who was the applicant in OA No.381/2012 alleging willful disobedience with Ext P1 order dated 30.9.2015. The Tribunal in exercise of its power under Sec.17 of the Administrative Tribunals Act ('the Act' for short) read with Rule 8 of the Contempt of Courts Act 1992 ('the Rules' for short) issued notice to the respondent and thereafter, passed Ext P5 order evidently and admittedly, after hearing both sides. As per Ext.P5 order the Tribunal held that the alleged action would not tantamount to contempt of court and consequently the contempt petition was dismissed and notices were discharged. It is the said order which is under challenge in this Original Petition. **OP(CAT).109/18** 2 2. When this matter came up for admission the Central Government Standing Counsel appearing for the respondents raised a question rather, an objection regarding the maintainability of the Original Petition. The contention is that since Ext.P5 is an order passed by the Central Administrative Tribunal under Section 17 of the Act and the same could be challenged only before the Hon'ble Apex Court and this court lacks jurisdiction to entertain such a challenge. The learned counsel appearing for the petitioner countered the said contention and submitted that this court vests with the jurisdiction to decide the issues involved in this Original Petition. In the light of the above rival submissions it is only befitting to decide the maintainability of the Original Petition as a preliminary question. 3. We have heard the learned counsel appearing for the petitioner as also the learned Central Government Standing Counsel (CGSC). 4. The learned CGSC appearing for the respondents in order to buttress the contention that this OP is not maintainable, relied on the decisions of the Hon'ble Apex **OP(CAT).109/18** 3 Court in T.Sudhakar Prasad v. Government of A.P and Others (2001 (1) SCC 516) . The learned counsel appearing for respondents also relied on a Division Bench decision of this court in the The Project Manager v. K.O.Paulose reported in (2014 (4) KLJ 731) and a decision of the Hon'ble Apex Court in D.N.Taneja v. Bhajan Lal (1988 (3) SCC 26) . 5. Per contra, the learned counsel appearing for the petitioner, for countering the contentions raised by way of objection regarding the maintainability of the Original Petition, relied on a Division Bench decision of this court in Subhash Chandra Garg v. Vijith Krishnan ILR (2018 (2) (Kerala) 197) . The said decision is relied on by the learned counsel to canvas the point that if while passing an order in a contempt petition, the Tribunal went beyond the scope of powers or the power to take contempt, to that extent this court could entertain the Original Petition. 6. For appropriate consideration of the issues involved, it is profitable to refer to Section 17 of the Act and it reads thus :- “Power to punish for contempt - A Tribunal shall have, **OP(CAT).109/18** 4 and exercise, the same jurisdiction, powers and authority in respect of contempt of itself as a High Court has and may exercise and, for this purpose, the provisions of the Contempt of Courts Act, 1971 (70 of 1971) shall have effect subject to the modifications that - a). the reference therein to a High Court shall be construed as including a reference to such Tribunal ; (b). the references to the Advocate-General in section 15 of the said Act shall be construed - (i). in relation to the Central Administrative Tribunal, as a reference to the Attorney-General or the SolicitorGeneral or the Additional Solicitor-General and (ii) in relation to an Administrative Tribunal for a State or a Joint Administrative Tribunal for two or more states, as a reference to the Advocate-General of the State or any of the State for which such Tribunal has been established.” 7. Earlier, the Hon'ble Apex Court in T.Sudhakar Prasad 's case considered the scope of Central Administrative Tribunal invoking power under Section 17 of the Act. That was a case where the Administrative Tribunal (Andhra Pradesh) entertained an application filed under Section 17 of the Act seeking initiation of a proceedings alleging wilful disobedience with its order. As against the said action in taking cognizance on the said application the State of Andhra Pradesh and its principal secretary filed writ petition before the High Court of Andhra Pradesh. In another matter, an application, invoking contempt **OP(CAT).109/18** 5 jurisdiction of the High Court in the matter of wilful disobedience with an order passed by the Andhra Pradesh administrative Tribunal, was filed directly before the High Court without approaching the Tribunal under Section 17 of the Act. Essentially, the question arose in those matters before the High Court of Andhra Pradesh was whether such proceedings under Section 17 of the Act are maintainable before the High Court or the Administrative Tribunal. A Division Bench of the Andhra Pradesh High Court disposed of those matters holding that in view of the decision of the Hon'ble Apex Court in L.Chandra Kumar v. Union of India (1997 (3) SCC 261) , Section 17 of the Act did not survive, and as a necessary sequel to the said conclusion, it was further held that the Administrative Tribunal set up under the Act could not exercise contempt jurisdiction under Section 17 of the Act as it became non-est under law with the pronouncement of the decision in L.Chandra Kumar's Case. Consequent to such findings, the application for initiation of contempt filed before the Andhra Pradesh Administrative Tribunal was set aside as being devoid of jurisdiction with further observation that it would not preclude the respondents therein to approach the High Court with prayers for punishing for contempt of the orders of the **OP(CAT).109/18** 6 Administrative Tribunal relating the decision rendered by the Administrative Tribunal. It was further held that, as has been done by the petitioner in the other contempt petition filed directly before the High Court without approaching the Tribunal, the said course ought to have been adopted by the petitioner who moved the Tribunal. It was in the said circumstances that the Hon'ble Apex Court considered the scope of invocation of the power under Section 17 of the Act by Administrative Tribunals in the decision in T.Sudhakar Prasad 's case. Evidently the Apex Court elaborately considered in L.Chandra Kumar 's case. The fact that the High Court of Andhra Pradesh had passed such orders 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 of India and its decision having been made subject to judicial review jurisdiction of the High Court under Articles 226/227 of the Constitution of India, 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 those twin grounds Section 17 of the Act became unworkable and unconstitutional. Ultimately the Apex Court held that merely because the orders of the Tribunal could be subjected to judicial **OP(CAT).109/18** 7 review jurisdiction of the High Court under Articles 226/227 of the Constitution of India the power of the Tribunal to punish for contempt under Section 17 of the Act could not be held as taken away from the Tribunal and further that contempt jurisdiction is exercised for the purpose of upholding the majesty of law and dignity of judicial system as also all the courts and the Tribunals are entrusted with the task of administering delivery of justice. The availability of jurisdiction to punish for contempt provides efficacy of functioning of the judicial forum and enables enforcement of orders on account of its deterrent effect of avoidance. Viewed in that angle the validity of Section 17 of the Act was held as important not only by sub-clause (b) of clause (2) of Article 323A but also by sub-clause (g) thereof. Ultimately, it was held that the Tribunal still vests with the power to hear on their own contempt, invoking the power under Section 17 of the Act. 8. In the context of the contentions it is also relevant to refer to the decision of the Apex Court in R.Mahojan' s case (supra) evidently rendered following the decision in L.Chandra Kumar 's case. The Apex Court also referred to its earlier decisions in T.Sudhakar Prasad 's case (supra) and in the Supreme Court Bar Assn. v. Union of India **OP(CAT).109/18** 8 (1998 (4) SCC 409). That was a case where the question posed for consideration was whether an order or a decision of the Tribunal imposing punishment for contempt appealable under Section 19 of the Contempt of Courts Act, 1971, would lie before the High Court or it would lie only before the Supreme Court. As per the said decision, the Apex Court held that an order or decision of the Tribunal imposing punishment for contempt is appealable under Section 19 of the Contempt of Courts Act, 1971 only to the Supreme Court. A Division Bench of this Court in the decision in K.O.Paulose 's case (supra) considered the question whether an appeal would lie when a court declines to initiate proceedings in contempt or to exercise its jurisdiction to punish for contempt. Essentially, while considering the said issue, the Division Bench referred to various decisions of the Apex Court including the decisions in D.N.Tajeja 's case and in State of Maharashtra v. Mahboob S.Allibhoy (1996 (4) SCC 411) . After referring to the provisions as also the various decisions of the Hon'ble Apex Court and different High Courts, it was held that a decision not to initiate proceedings for contempt could not be termed as a decision to punish for contempt and therefore such an order is not appealable under Section 19 of the Act. **OP(CAT).109/18** 9 Before adverting to the other authorities it is only appropriate to consider Section 19 of the Act and it reads thus :- “Subject to the other provisions of this Act, a person aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunal may make an application to the Tribunal for the redressal of his grievance.” A bare perusal of Section 19 of the Act would suggest that an appeal would lie as a matter from an order or decision of High Court in the exercise of its jurisdiction to punish for contempt. 9. The Apex Court in D.N.Tanaja's case, held that when the High Court erroneously acquits an alleged contemnor the petitioner, who sought to initiate contempt proceedings against that person would not be said to be left with any remedy. It was further held that even though no appeal would be maintainable under Section 19(1) of the Act, the person concerned in such case could move the Apex Court under Article 136 of the Constitution of India. 10. The learned counsel appearing for the petitioner attempted to canvass the position that the decision of the **OP(CAT).109/18** 10 Apex Court in T.N.Tajena's case cannot be treated as an authority to hold the position that when a court or Tribunal declines to initiate proceedings for contempt, the remedy of the person who sought for initiation of the action for contempt would only be to approach the Apex Court. It is contended that D.N.Tanaje's case was rendered before the decision in L.Chandra Kumar 's case. But we are afraid that the said contention cannot be upheld in the light of the decision in K.O.Paulose 's case which was rendered taking note of the decisions of the Apex Court in L.Chandra Kumar 's case, in T.Sudhakar Prasad's case as also in D.N.Taneja's case. A scanning of the Division Bench decision in K.O.Paulose 's case would reveal that this court held that in a case where a Court or Tribunal declines to initiate proceedings for contempt or to exercise its jurisdiction to punish for contempt, no appeal would lie under Section 19 of the Act. Evidently at the same time, this Court took note of the decision in D.N.Taneja's case where the apex Court held that even under such circumstances it would not render the person, who sought for initiation of action against the alleged contemnor, with remedies and his remedy would then lie under Article 136 of the Constitution of India. In this context it is also apropos to refer to another decision of **OP(CAT).109/18** 11 the Apex Court in Midnapore Peoples' Co-op.Bank Ltd & Ors. v. Chunilal Nanda & Ors. (AIR 2006 SC 2190), wherein the Apex Court held that an appeal under Section 19 of the Act would lie only against an order punishing for contempt and is a case where an appeal would not lie it would be open to challenge under Article 136 of the Constitution of India. In the light of the decisions of the Apex Court in Midnapore Peoples' case and also in K.O.Paulose 's case, we have absolutely no hesitation to hold that the contention of the learned counsel for the petitioner that the decision of the Apex Court in D.N.Taneja 's case, could not be made applicable for the reason that it was rendered prior to L.Chandra Kumar 's case, is devoid of merits. 11. The learned counsel for the petitioner has also attempted to canvas the position that D.N.Taneja's case is not applicable on another ground as well. It is stated that in that decision the Apex Court held that even when action on an application for initiation of contempt was declined, the remedy to the person who attempted to initiate action alleging contempt would be by way of moving a petition under Article 136 of the Constitution of India. The submission is that in D.N.Taneja 's case, **OP(CAT).109/18** 12 initiation of action for contempt was declined by the High Court of Punjab and Haryana. It is submitted that when disinclination to initiate action is that of a High Court necessarily the remedy lies only before the Apex Court. It is contended that in the light of the decision in L.Chandra Kumar 's case even in such circumstances instead of directly approaching the Apex Court, it would be open to the person concerned to approach the High Court for judicial review under Article 226/227 of the Constitution of India. That contention also cannot be held in the light of the decision of the Apex Court in K.O.Paulose ' case and also the decision in Midnapore Peoples' case. In Midnapore Peoples' case it is held thus :- “If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is pend to challenge in an inracourt appeal (if the order was of a learned single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases)”. 12. Now we will refer to the decision of a Division Bench of this court in Subhash Chandra Garg (supra). In that case, finding that while passing an order invoking the **OP(CAT).109/18** 13 power under Section 17 of the Act the Tribunal went beyond the scope of the power to initiate action for contempt under Section 17 and made direction relating merits of the dispute and a supplemental direction was issued, this court virtually entertained the Original Petition. A scanning of the said decision would reveal that this Court had virtually found, on scrutiny of the order impugned, that it is not at all an order passed within the scope of the power under Section 17 of the Act. This Court held that in a matter filed for initiation of action for contempt under Section 17 of the Act, the court or Tribunal could pass only an order punishing the contemnor or holding him not guilty or discharged. As per the order impugned before the Division Bench, the Tribunal had neither punished the contemnor nor held him not guilty. It was actually an order carrying supplemental direction. We do not find any reason not to concur with the proposition in Subhash Chandra Garg 's case. But at the same time we are of the firm view that there is absolutely no room for any doubt regarding the position when an order is passed by a Tribunal in an application filed for initiating of action for contempt under Section 17 of the Act and when that order is one punishing a person for contempt. In such circumstances **OP(CAT).109/18** 14 the remedy is only to file an appeal under Section 19 of the Act and that would lie only before the Apex Court. In the light of the decision in Midnapore Peoples' case and also the decision in K.O.Paulose 's case if on such an application the Tribunal had declined to initiate proceedings for contempt or to exercise its jurisdiction to punish for contempt and dismisses the application and discharge notices, the remedy available to the person concerned is only to move a petition under Article 136 of the Constitution of India. 13. Having settled the position as above, we will refer to the case on hand. As noticed hereinbefore in the case on hand, the challenge is made against Ext.P5 order. To consider whether it is an order essentially passed invoking the power under Section 17 of the Act it is necessary to extract the following recital from the said order. “We note that the respondents have substantially complied with the order passed by the Tribunal. We are unable to see any circumstances which tantamount to a contempt of court..... Paragraph 8 in the circumstances, this OP is dismissed. Notice discharged”. 14. In this case the petitioner is attempting to canvas the **OP(CAT).109/18** 15 position that the order impugned is an order passed beyond the scope of power under Section 17 of the Act. This is because while holding that the actions on the part of the respondents therein would not tantamount to contempt of court, the Tribunal held thus “since the relief granted in Annexure-P1 final order is to grant the benefit of one time promotion to the applicant as per office memorandum dated 28.3.2011, we do not find any irregularity or illegality in the action of the respondents to request the applicant to appear for interview in terms of - instructions in Annexure A1 OM regarding grant of ” promotion . 15. The contention is that the finding that there was no irregularity or illegality in the action of the respondents to request the applicant to appear for interview in terms of instructions in the OM regarding grant of promotion, is an observation made beyond the scope of power under Section 17 of the Act. Hence, according to the petitioner the case on hand squarely falls within the purview of the decision of the Division Bench in Subhash Chandra Garg 's case. The contention is that even though against the dismissal of the contempt petition holding that actions on the part of the respondents do not tantamount to **OP(CAT).109/18** 16 contempt of court, remedy of the petitioner is only before the Apex Court under Section 136 of the Constitution of India as against the grievances relating the aforementioned observation, an independent writ petition would lie before this court under Article 226/227 of the Constitution of India. We are afraid that the said contention cannot be upheld. The aforesaid observation, according to us, is the reason for passing the said order. The Tribunal arrived at the conclusion that the respondents had substantially complied with the order and therefore their action in calling for the interview would not tantamount to contempt of court. If that observation is erroneous, according to us, that is a matter which could be gone into only in a petition moved under Article 136 of the Constitution of India, as that was the reason for not initiating or continuing with the proceedings for initiating contempt for disobedience of Annexure-P1 order. In such circumstances independent challenge against the said portion of Ext.P5 judgment and seeking for its expungement cannot be entertained in this OP. We are of the view that as long as that is the reason for holding that the earlier direction was substantially complied with and the alleged contemnor has not committed any contempt of court, its correctness can be 17 ## **OP(CAT).109/18** examined only in a petition under Article 136 of the Constitution of India and at any rate, such a challenge against that portion of Ext.P5 order cannot be entertained independently by this Court under Article 226/227 of the Constitution of India. 16. In the result, the preliminary objection is upheld. It is held that this OP is not maintainable. Consequently leaving open the right of the petitioner to resort to appropriate remedy in accordance with law, this OP is dismissed. Sd/- C.T.RAVIKUMAR Judge Sd/A.M.BABU Judge Mrcs/5.7.