O.P.(CAT) No.9 of 2021 (Arising out of order dated 20.01.2021 in C.P.No.38/2019 in O.A.No.957/2018, Central Administrative Tribunal, Ernakulam Bench)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942** **OP (CAT).No.9 OF 2021** **ARISING OUT OF THE ORDER DATED 20.1.2021 IN C.P.NO.38/2019 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONERS/RESPONDENTS:** **1 SHRI VIJAY KESHAV GOKHALE SECRETARY(RETIRED), MINISTRY OF EXTERNAL AFFAIRS, NEW DELHI-110011.** **2 ARUN KUMAR CHATTERJI, CHIEF PASSPORT OFFICER AND JOINT SECRETARY(CPV) (FORMER), MINISTRY OF EXTERNAL AFFAIRS, SOUTH BLOCK, NEW DELHI-110001.** **3 BHANU LALI, REGIONAL PASSPORT OFFICER, REGIONAL PASSPORT OFICE,PANAMPILLY NAGAR, KOCHI-682035.** **BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA** ## **RESPONDENT/PETITIONER:** **K.S.SINDHU AGED 55 YEARS, W/O.K.G.RAMESH BABU, ASST.SUPERINTENDENT, REGIONAL PASSPORT OFFICE, COCHIN,PANAMPILLY NAGAR,KOCHI-682035, RESIDING AT KOLOTHURA HOUSE,H.NO.XX/142-D, SIRAJ NAGAR,ONNODIMOOLA ROAD, KODIKUTHIMALA,ALUVA-683101.** **R1 BY ADV. SRI.SHAFIK M.A. R1 BY ADV. SHRI.RAMAKRISHNAN D.** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 10.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(CAT) No.9/2021 ## **ALEXANDER THOMAS & K.BABU, JJ.** **--------------------------------------------------** ## _O.P.(CAT) No.9 of 2021_ _(Arising out of the order dated 20.1.2021 in C.P.No.38/2019 in O.A.No.957/2018 of Central Administrative Tribunal, Ekm Bench)_ **---------------------------------------------------** _Dated this the 10[th] day of March, 2021_ ## **JUDGMENT** ## _Alexander Thomas, J._ The prayers in the aforecaptioned O.P.(CAT) filed under Articles 226 and 227 of the Constitution of India are as follows : - _“i) Call for the records leading to Exhibit P10 and set aside the same ; and_ - _(ii) declare that in the facts and circumstances of the case when the case of the respondent for conferment of benefits of ACP has been considered in terms of the relevant scheme, there is no contempt of court attracted against the petitioners herein by the Tribunal.”_ 2. Heard Sri.P.Vijayakumar, learned Assistant Solicitor General of India appearing for the petitioners in the Original Petition/ respondents in the Contempt Petition before the Tribunal and Sri.M.A.Shafik, learned counsel appearing for the respondent in the Original Petition/petitioner in the Contempt Petition before the Tribunal. 3. The case broadly set up by the petitioners in the above Original Petition is as follows :- 3 O.P.(CAT) No.9/2021 _The respondent herein was originally engaged as a clerk on daily wages. Later she was offered regularisation with effect from 17.4.1997. Meanwhile the Department of Personnel and Training introduced Assured Career Progression (ACP) Scheme to avoid stagnation in promotion avenues which provided for conferment of higher grade on completion of 12 year service in one grade and scale of pay without any promotion and further similar upgradation after lapse of 24 years. The upgradation was to be made after assessment of the performance of the employee for continuous five years immediately prior to upgradation subject to satisfaction of the minimum of grade of good for all the five years. Originally the respondent herein filed O.A.No.957 of 2018 essentially seeking that she may be extended the benefit of ACP with effect from 17.4.2002 after reckoning her entire service including casual service from 17.4.1990. Consequently she further sought extension of further higher grade under MACP (Modified Assured Career Progression) Scheme with effect from April 2010 on completion of 20 years. There were similar claims related to extension of ACP to other employees who are regularised and completed 12 years service including casual service. O.A.No.957 of 2018 was allowed the CAT vide Ext.P3 order directing extension of ACP and MACP benefits to the respondent after reckoning the casual service rendered by her during 1990-1997. Contempt Petition No.38 of 2019 was filed before the CAT alleging non compliance of Ext.P3 order. The order dated 25.1.2019 was challenged by the Ministry under O.P.(CAT) No.241 of 2019 which happened to be partly allowed under Ext.P4 common judgment dated 19.11.2019 and the Contempt Petition (c) No.38 of 2019 was kept pending by the Tribunal. Under Ext.P4, this Court essentially found that the respondent would be entitled to the benefit of ACP Scheme after_ 4 O.P.(CAT) No.9/2021 _reckoning the casual service ; but she would not be entitled to reckoning of casual service for MACP benefit as the same required completion of ten years/twenty years regular service in a post without any promotional avenues. In respect of other claimants, related to extension of ACP benefits, this Court in connected cases found that they would be also entitled to reckoning of casual service for conferment of ACP benefits. The case of the respondents and others considered for extension of ACP benefits after assessment of five years service performance as borne out by Annual Confidential Report. Since the respondent entered regular service only on 22.4.1997 and she did not offer her self assessment report during 1997-98, the Ministry made an assessment of service performance of the respondent borne out by ACR of 1998-99 to 2002-2003. On such assessment as the performance related to 2002-03 was found to be 'average' against the requirement of minimum bench mark of 'good' for all the five years. She could not qualify for claiming the benefit of ACP. Meanwhile the respondent herein revived C.P.No.38 of 2019 pending before the CAT alleging contempt of court against the petitioners herein. Though the petitioners submitted under Ext.P7 statement dated 7.10.2020, that the claim of the petitioner for conferment of ACP was considered along with others, but she could not qualify as the Benchmark related to the assessment for 2002-03 as 'average' whereas against the required grade of good. In spite of Ext.P7 statement, the Tribunal has issued Ext.P10 order dated 20.1.2021 directing the petitioners to file a fresh statement of compliance. Ext.P10 order militates against the letter and spirit of Ext.P3 order and Ext.P4 judgment which essentially directed the department the case of respondent for conferment of ACP benefits with effect from 2002, April, after reckoning the casual service rendered from 1990. This implied that the Ministry has to consider the_ 5 O.P.(CAT) No.9/2021 _claim of the respondent in accordance with law i.e. in terms of the Scheme, which was already complied with. In short, the failure of the respondent to qualify the assessment as required under the Scheme is not liable to be considered as there is failure to comply with the directions of the Tribunal and since any order or judgment of the court or Tribunal could not contemplate conferment of a benefit dehors law and rule. Ext.P10 order failed to consider the case of the petitioners that directions under Exts.P3 and P4 have been already complied with and there is no contempt. Ext.P10 order of the Tribunal is vitiated by non application of mind to the facts and law by finding non compliance._ 4. It is in the light of the above averments and contentions that the petitioners herein, who are the respondents in the Contempt Petition before the Tribunal, have filed the instant Original Petition under Articles 226 and 227 of the Constitution of India with the aforementioned prayers. 5. One of the main contentions urged by Sri.P.Vijayakumar, learned Assistant Solicitor General of India appearing for the petitioners/respondents in the Contempt Petition before the Tribunal, is that in compliance with the directions in Exhibit P3 final order dated 25.1.2019 rendered by CAT, Ernakulam Bench in O.A.No.957 of 2018, as modified by Exhibit P4 judgment dated 19.11.2019 rendered by a Division Bench of this Court in O.P.(CAT) No.241 of 2019 and connected 6 O.P.(CAT) No.9/2021 cases, the competent authority concerned, who are the petitioners herein and respondents in the C.P., have issued Exhibit P5 proceedings dated 13.7.2020 for and on behalf of the Government of India, Ministry of External affairs (Passport Seva Project Division), whereby it was found that the benchmark of the ACRs (Annual Confidential Records) of the respondent herein/original applicant/petitioner in the C.P. was not having the requisite minimum bench mark of ‘good’ for the relevant period in question and hence she was not entitled for the benefit of ACP (Assured Career Progression) for the year 2002. This aspect of the matter regarding issuance of Exhibit P5 proceedings rendered on 13.7.2020 has been specifically brought to the notice of the Tribunal in the abovesaid contempt proceedings. In spite of that the Tribunal has overlooked the abovesaid aspect borne out from Exhibit P5 proceedings and held, as per the impugned Exhibit P10 order dated 20.1.2021 in C.P.No.38 of 2019 (arising out of O.A.No.957 of 2018), that the respondents therein are going against the orders passed by the Tribunal at Exhibit P3 and hence the respondents therein have been directed to file a statement regarding the implementation of Exhibit P3 order as modified by the Division Bench of this Court at Exhibit P4 judgment without fail, by the next posting date, so as to avoid further proceedings in the contempt petition. 7 O.P.(CAT) No.9/2021 6. In this regard, pertinently Sri.P.Vijayakumar, learned Assistant Solicitor General of India appearing for the petitioners, would point out that though the directions in Exhibit P3, as modified by Exhibit P4, are to the effect of taking steps in the matter of grant of the benefit of ACP to the respondent herein/petitioner in the C.P. for the relevant year 2002-2003, the said benefit is to be granted by the petitioners herein if the respondent herein is entitled for the same going by the norms for consideration for the grant of this benefit and since the competent authority has now found, as per Exhibit P5, that the respondent herein/petitioner in the C.P. has not secured the minimum Bench mark of ACR grading upgradation of ‘good’ for the periods which are relevant for 2002-2003, it cannot be said that there is any willful disobedience or any cause of action to proceed further in the contempt case and that at best, if the respondent herein has a case that the said order is illegal or unreasonable, etc., then it is for the respondent herein to agitate those issues in the manner known to law and such a matter cannot be said to be a matter which would fall within the domain and province of the contempt proceedings before the Tribunal. 7. Per contra Sri.M.A.Shafik, learned counsel appearing for the respondent herein/petitioner in the C.P., would urge two grounds. The primary ground urged by the learned counsel appearing for the 8 O.P.(CAT) No.9/2021 respondent herein is that indisputably the impugned proceedings at Exhibit P10 is contempt proceedings now pending before the Central Administrative Tribunal, Ernakulam Bench, which is regulated by the provisions contained in the Administrative Tribunals Act, 1985 as well as the Rules framed thereunder (Contempt of Court Rules) including the Contempt of Courts Act, 1971. It is also urged by the learned counsel that indisputably the said matter arising out of ExhibitP10 is not an order issued by the Tribunal in exercise of its original jurisdiction conferred in terms of the provisions contained in Section 19 of the Administrative Tribunals Act, but it is only an order passed in contempt jurisdiction of the said Tribunal, in terms of the provisions contained in the Administrative Tribunals Act read with the Rules framed thereunder as well as the Contempt of Courts Act,1971. In that regard, learned counsel for the respondent would point out that it is by now well established by the verdicts of the Apex Court in the cases as in _**T.Sudhakar Prasad v. Govt. of A.P. and others [(2001) 1 SCC 516,**_ **paragraph 17** _**]**_ and _**R.Mohajan and others v. Shefali Sengupta and others [(2012) 4 SCC 761,**_ **paragraph 17** _**]**_ that the jurisdiction of judicial review and jurisdictional benefits available to the High Courts in terms of Articles 226 and 227 of the Constitution of India are only in respect of verdicts or orders of the Tribunal constituted as per the provisions of 9 O.P.(CAT) No.9/2021 Administrative Tribunals Act, 1985 in exercise of their original jurisdiction as held conclusively by the Larger Bench of the Apex Court in _**L.Chandra Kumar v. Union of India and others [(1997) 3 SCC 261)**_ . Further it has been held that the said power under Article 226 of the Constitution of India cannot be exercised by the High Courts in orders issued by the Tribunal constituted as per the provisions of the Administrative Tribunals Act, 1985 arising out of contempt proceedings and that in such cases the remedy of an aggrieved party is to directly file an appeal before the Apex Court in terms of Section 19 of the Contempt of Courts Act, 1971. In that regard, it may be relevant to refer to paragraph No.17 of the decision of the Apex Court in _T.Sudhakar Prasad v. Govt. of A.P. and others [(2001) (1) SCC 516]_ , which reads as follows : _“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_ 10 O.P.(CAT) No.9/2021 _from the judgments of this Court in the cases of Supreme Court Bar Assn. [(1998) 4 SCC 409] or L. Chandra Kumar [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] 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_ 11 O.P.(CAT) No.9/2021 _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 [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] 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.”_ 8. It is also brought to the notice of this Court that the abovesaid decision of the three Judges Bench of the Apex Court in _T.Sudhakar Prasad v. Govt. of A.P. and others [(2001) 1 SCC 516]_ has been followed and relied on in a subsequent two Judges Bench decision of the Apex Court in the case in _R.Mohajan and others v. Shefali Sengupta and others [(2012) 4 SCC 761,_ paragraph 17 _]_ . Hence Sri.M.A.Shafik, learned counsel appearing for the respondent, would primarily urge that this Court may not have the jurisdiction to entertain this petition since indisputably the impugned order of Exhibit P10 is 12 O.P.(CAT) No.9/2021 emanating out of contempt proceedings instituted before the Tribunal. Yet another contention raised by the learned counsel for the respondent is that the aforesaid objections now sought to be projected by the petitioners herein, on the basis of Exhibit P10, are untenable and such objections have never been raised by them at any point of time in the previous round of litigations that the service records whether the ACRs of the respondent herein for some of the years are missing and that the respondent herein does not have the minimum Bench mark for the relevant period in question, etc. and that she is thus disentitled for the grant of ACP for the relevant year 2002-2003. Further it is contended that the respondent herein has been constrained to initiate a series of litigations in the matter which ultimately resulted in Exhibit P3 order of the Tribunal, as modified by Exhibit P4 judgment of the Division Bench of this Court. The concluded direction given by the Tribunal at Exhibit P3, as modified by Exhibit P4 judgment of the Division Bench of this Court, is that the ACP benefit for the relevant year 2002-2003 is to be granted to the petitioner therein/respondent herein and that no leeway has been given in the said verdicts whereby any discretion has been conferred to the petitioners herein in denying the benefit of ACP for the year in question by raising the present objections. It is also contended that the objections raised by the petitioners herein at Exhibit P10 as if 13 O.P.(CAT) No.9/2021 ACRs of some of the periods are missing and further that ACR for the period 2002-2003 has been taken is absolutely illegal even otherwise for the simple reason that the relevant period is 2001-2002 as the ACP benefit has been directed to be given to the respondent herein is with effect from 17.4.2002. 9. Per contra, Sri.P.Vijayakumar, learned Assistant Solicitor General of India appearing for the petitioners would urge that the abovesaid contention of the respondent herein based on the decisions of the Apex Court in _**T.Sudhakar Prasad's**_ case supra [(2001) 1 SCC 516] and _**R.Mohajan's**_ case supra [(2012) 4 SCC 761], to the extent that this Court has no jurisdiction under Art.227 of the Constitution of India to interdict in matters arising out of the interlocutory orders passed by the Tribunal in contempt proceedings even before passing any order or decision on the guilt of the alleged contemnor is absolutely untenable and that the abovesaid contention of the respondent herein is based on a complete misreading of the decisions rendered by the Apex Court in those cases. In that regard, it is pointed out that by the learned Assistant Solicitor General of India that a mere reading of para 17 of _**R.Mohajan's**_ case supra [(2012) 4 SCC 761] on page 766 _g h_ and page 767 _a b_ of the SCC report would make clear like the day light that what has been held is that where the Tribunal passes any order or decision 14 O.P.(CAT) No.9/2021 punishing the contemnor, then the same shall be appealable only to the Apex Court within 60 days from the date of the order appealed against in view of the specific provisions contained in Sec.19 of the Contempt of Courts Act, 1971 read with Sec.17 of the Administrative Tribunals Act and that where a decision or order is passed by the Tribunal in contempt proceedings holding the alleged contemnor as guilty of contempt or punishing for contempt, etc. then such a decision of the Tribunal in contempt proceedings can be challenged only in statutory appeal to be preferred before the Apex Court within 60 days as mandated in Sec. 19 of the Contempt of Courts Act read with Sec. 17 of the Administrative Tribunals Act, etc. That whereas in cases where the orders passed by the Tribunal in contempt proceedings are before finding the guilt of the alleged contemnor/respondent therein, then the abovesaid bar will not apply and that going by the well established legal principles and taking note of the facts and circumstances of the case, this Court can exercise it supervisory jurisdiction in terms of Art.227 of the Constitution of India against such orders that may be passed by the Tribunal at any stage before finding the alleged contemnor as guilty of contempt or punishing for contempt, etc. Further it is pointed out that the said aspect is also all the more elucidated and clarified by a Division Bench of this Court in the decision in _**Subhash Chandra Garg v. Vijith Krishnan**_ [2018 (3) KLT 15 O.P.(CAT) No.9/2021 475 (D.B)]. Our attention has been specifically invited to para Nos. 16 to 20 of ## the decision of the Division Bench of this Court in _**Subhash Chandra Garg's case**_ supra [2018 (3) KLT 475 (D.B)], which read as follows: _'16. We are unable to accede to the submissions of Sri.Nandakumar on this issue. We have seen Ext.P5 order of the learned Tribunal, dated 07.07.2015, very carefully and the present impugned order, dated 31.08.2017. While the first order directed the respondent be referred to an Appellate Medical Board and the petitioners to thereafter issue an appropriate order, the present order goes a step forward and directs that the respondent be issued an order of appointment. By no stretch of imagination can the submissions of Sri.Nandakumar be countenanced that this is only a corollary direction to the directions contained in Ext.P5 order, dated 07.07.2015. We have no doubt in our mind, as it becomes discernible from even a plain reading of the impugned order, that this amounts to a supplemental, if not a fresh direction and going by the ratio in the judgments afore-cited, it was impermissible for the Tribunal to have issued such directions, which can only amount to a transgression of the parameters of jurisdiction invested on it, while acting under S.17 of the Tribunal's Act and S.19 of the Contempt of Courts Act, 1971._ _17. That being so concluded, we are certainly cognizant that Sri.Nandakumar has a specific case that notwithstanding the above, this Writ Petition is not maintainable, because an order passed by the learned Tribunal under S.17 of the Tribunal's Act can be appealed against only before the Hon'ble Supreme Court. He relies on a Division Bench judgment of this Court in Chandrasekharan Pillay v. Krithivasan (2001 (2) KLT 179) and the judgment of the Hon'ble Supreme Court in Mohajan R.& Ors. v. Shefali Sengupta & Ors. (2012 (1) KLT Suppl.99 (SC) = (2012) 4 SCC 761) to garner support for his contention that an order passed by the Tribunal, while acting under contempt jurisdiction, cannot be challenged before this Court._ _18. We have considered the submission of Sri.Nandakumar and we have also read the judgments cited above with great amount of care. We are afraid that on a close reading of the judgments, the proposition of law, as has been declared by the Hon'ble Supreme Court, is not in the manner as has been stated by Sri.Nandakumar. We say this because, the settled position of law, now going by the aforesaid judgments and by two other judgments, to which we will refer presently, is that an order of punishment or an order refusing punishment by a Tribunal while acting under S.17 of the Tribunal's Act cannot be challenged before the High Court, since S.19 of the Contempt of Courts Act, 1971 makes such action available only before the Hon'ble Supreme Court. Interestingly, there is no inhibition in the Tribunal's Act from approaching the High Court, but the restriction is contained in S.19 of the Contempt of Courts Act, 1971, where the provision for an appeal has been mandated to lie only to the Hon'ble Supreme Court, against an order or decision of the High Court in exercise of the jurisdiction to punish for contempt. This principle was enunciated by the Hon'ble Supreme Court in T. Sudhakar Prasad (supra) and Sujitendra Nath Singh Roy v. State of West Bengal & Ors. (2015 (2) KLT 425 (SC) = (2015) 12 SCC 514). The relevant portion of paragraph 17 of the judgment in T.Sudhakar Prasad (supra) is extracted hereunder:_ _“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_ 16 O.P.(CAT) No.9/2021 _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.”_ _19. Further, in Sujitendra Nath Singh Roy (supra) the same principle was reiterated in paragraph 5 therein, which is as under:_ _“5. There is no caveat to the proposition of law that under Section 19 of the Contempt of Courts Act, 1971 an appeal lies before the Supreme Court only against such order of the High Court which imposes punishment for contempt and no appeal will lie against an interlocutory order or an order dropping of refusing to initiate contempt proceedings. This was clearly laid down in State of Maharashtra v. Mahboob S. Allibhoy. This view was also followed in several cases including in Midnapore Peoples Co-op.Bank Ltd. v. Chunilal Nanda.”_ _20. In this judgment, the Hon'ble Supreme Court certainly said that there is no caveat to the proposition in law that under S.19 of the Contempt of Courts Act, 1971, an appeal will lie to the Supreme Court only against an order imposing punishment but not droping or refusing to initiate contempt proceedings. This is the same view as has been voiced by this Court in Chandrasekharan Pillay (supra). The position of law, therefore, becomes ineluctable that when a Tribunal passes an order either punishing or refusing to punish a contemnor in a contempt petition, such orders would be amenable to a challenge only before the Hon'ble Supreme Court and not before this Court.'_ 10. Further it is also urged that in such similar situation, as in this case, the Division Bench of this Court has interfered with an order passed by the Tribunal at the pre-guilt stage in the abovesaid decision in _**Subhash Chandra Garg's case**_ supra [2018 (3) KLT 475 (D.B)], etc. In that regard, it is pointed out that in the instant case, the petitioners herein have duly considered the claim of the original applicant for grant of the benefit in question and it has been found that the incumbent is not entitled for the reasons stated in Ext.P-5 proceedings and that once such 17 O.P.(CAT) No.9/2021 a considered decision is taken by the competent authority concerned, then it cannot be said that the benefit should be given even if the incumbent is not eligible and entitled for the same and that therefore, the Tribunal has gone wrong in entertaining the contempt petition in view of the considered decision already taken by the competent authority which amounts to compliance of the directions and orders passed by the Tribunal in the OA and that the Tribunal should have closed the contempt proceedings and should have given liberty to the original applicant to work out her remedies in the manner known to law, if she has any legally justiciable grievances as against the abovesaid considered decision taken by the authority concerned. 11. After hearing both sides and taking note of the rival contentions, we are of the firm view that it may not be necessary or appropriate for us to adjudicate on merits the abovesaid rival contentions raised by the rival parties on the maintainability of the contempt proceedings before the Tribunal. The rights and interests of both sides and the interests of justice would be adequately advanced, if necessary directions are issued to the Tribunal to ensure that the abovesaid rival contentions on the maintainability of the contempt proceedings now raised by the rival parties are duly considered by the Tribunal and the Tribunal may decide as to the tenability or otherwise of 18 O.P.(CAT) No.9/2021 these rival contentions and as to whether _prima facie_ a case of contempt has been disclosed after the issuance of Exhibit P10 as urged by the respondent herein or that a _prima facie_ case of contempt is not disclosed in view of the issuance of Exhibit P10 and that the remedy of the respondent herein is to challenge Exhibit P5 proceedings in the manner known to law, as contended by the petitioners herein. Accordingly, it is ordered that the Tribunal should consider the abovesaid rival pleas on maintainability and so as to take a considered decision on those matters as above stated without much delay, independently and untrammelled by any of the observations made by this Court herein above. 12. In the light of these aspects, it is not necessary for us to keep this petition pending any longer. The Registry will forward a certified copy of this judgment to the Central Administrative Tribunal, Ernakulam Bench, who is dealing with Exhibit P10 C.P.No.38 of 2019 (arising out of O.A.No.957 of 2018) for necessary information. With these observations, the aforecaptioned Original Petition will stand finally disposed of. Sd/- ## **ALEXANDER THOMAS, JUDGE** Sd/- csl/sdk+ **K.BABU, JUDGE** 19 O.P.(CAT) No.9/2021 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE ASSURED CAREER PROGRESSION (ACP)SCHEME ISSUED BY THE DOPT VIDE OM NO.35034/1/97-ESTT(D)DATED 09.08.1999** **EXHIBIT P2 TRUE COPY OF THE OFFICE MEMORANDUM NO.F22011/5/86-ESTT.D DATED 10.03.1989** - **EXHIBIT P3 TRUE COPY OF THE ORDER IN OA 957/2018 EXHIBIT P4 TRUE COPY OF THE JUDGMENT OF THIS COURT IN OP(CAT)NO.241/2019 DATED 19.11.2019** - **EXHIBIT P5 TRUE COPY OF THE RELEVANT PAGES OF THE REPORT OF THE SCREENING COMMITTEE AND THEIR FINDING ENTERED ON THE ELIGIBILITY OF RESPONDENT AFTER DUE ASSESSMENT** - **EXHIBIT P6 TRUE COPY OF THE CONTEMPT PETITION NO.38/2019** **ANNEXURE P1 TRUE COPY OF THE ORDER DATED 25.01.2019 OF THE TRIBUNAL IN OA 180/957/2018 ANNEXURE P2 TRUE COPY OF THE REPRESENTATION DATED 31.01.2019 SUBMITTED BEFORE THE RPO, KOCHI EXHIBIT P7 TRUE COPY OF THE STATEMENT DATED 07.10.2020 EXHIBIT P8 TRUE COPY OF THE AFFIDAVIT DATED 07.11.2020 ANNEXURE P3 TRUE COPY OF THE I.A. FILED IN OP(CAT)241/2019 FILED BEFORE THE CAT,ERNAKULAM BENCH EXHIBIT P9 TRUE COPY OF THE MISCELLANEOUS APPLICATION FILED BY THE PETITIONERS BEFORE THE CAT ERNAKULAM BENCH IN C.P.38/2019** 20 O.P.(CAT) No.9/2021 **EXHIBIT P10 TRUE COPY OF THE ORDER DATED 20.01.2021.** **ADDITIONAL DOCUMENTS : ANNEXURE A TRUE COPY OF THE ORDER OF THE CAT, ERNAKULAM BENCH DATED 8.2.2013 IN O.A.NO.1027/2011. ANNEXURE B TRUE COPY OF THE JUDGMENT OF THIS COURT DATED 9.7.2013 IN O.P.(CAT) NO.2383/2013 ANNEXURE C TRUE COPY OF THE JUDGMENT OF THE HIGH COURT OF KARNATAKA DATED 11.11.2014 IN WRIT PETITION NO.47335/2014.**