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AFR

Court No. - 40

Case :- WRIT - A No. - 6014 of 2022

Petitioner :- Pankaj Dhar Dubey

Respondent :- Union Of India And 4 Others

Counsel for Petitioner :- Bashist Tiwari,Rajesh Kumar

Counsel for Respondent :- A.S.G.I.,Vivek Kumar Singh,A/V0572

Hon'ble Vivek Kumar Birla,J.

Hon'ble Vikas Budhwar,J.

1.Heard Sri Bashist Tiwari, learned counsel assisted by Sri Rajesh

Kumar, learned counsel for the petitioner, Sri Vivek Kumar Singh, who

has accepted notice on behalf of the respondent no.1-Union of India.

2.In view of the order which is being proposed to be passed today

there is no need to issue notice to the respondent nos.2 to 5.

3.This is a petition under Article 226 of the Constitution of India

instituted by the petitioner seeking following reliefs:-

“(i) To issue writ order or direction in the nature of certiorari

quashing the impugned order dated 03.12.2021 passed by Central

Administrative Tribunal, Allahabad Bench, Allahabad in Civil

Misc. Contempt Petition No.330/00070 of 2010, Pankaj Dhar

Dubey v. U.C. Dwadas Shreni and Others (Annexure No.1 to the

writ petition) arising out of order dated 06.12.2006 passed by

Central Administrative Tribunal, Allahabad Bench, Allahabad in

Original Application No.509 of 2004, Pankaj Dhar Dubey v. Union

of India and Others (Annexure No.9 to the writ petition).

(ii) To issue writ order or direction in the nature of mandamus

commanding and directing the respondents to give promotion to the

petitioner on the post of Lab Assistant in scale of Rs.530-610/- in

pursuance of Railway Board's Letter dated 21.01.1984 (Annexure

No.3 to the writ petition)

(iii) To issue writ order or direction in the nature of mandamus

directing the Central Administrative Tribunal, Allahabad Bench,

Allahabad/respondent No.5 to decide the case by constituting a

bench of two judicial members.

(iv) To issue writ order or direction in the nature of declaration

declaring Section 46 of the Constitution (Forty-second

Amendment) Act, 1976 by which Article 323A has been inserted in

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the Constitution of India (Annexure No.15 to the writ petition) and

Section 5(2) and 5(4) of the Administrative Tribunals Act, 1985

(Annexure No.16 to the writ petition) as unconstitutional and ultra

vires and struck down the same being violative of Articles 50 and

368 of the Constitution of India and against the basic structure of

Constitution of India.”

4.On 16.05.2022 following order was passed:-

“On being confronted with the preliminary objection raised by Sri

Vivek Kumar Singh, learned counsel appearing for Union of India

that the present writ petition against the order dropping the

contempt proceedings is not maintainable, Sri Bashist Tiwari,

learned counsel for the petitioner although sought to argue on the

issue of preliminary objection, however, after some argument he

prays that the matter may be adjourned for today and may be listed

as fresh after one week so as to enable him to further prepare the

matter.

Since this is a nominated matter, therefore, put up this case as fresh

on 25th May, 2022, at 2:00 P.M. for which learned counsel for the

parties have agreed.

It is made clear that in case learned counsel for the parties are not

present, this Court shall proceed to consider and decide the matter

on merits.”

5.Perusal of the reliefs as sought in the present writ petition it will

reveal that the petitioner has insisted that this Court may issue a writ,

order or direction in the nature of certiorari quashing the order dated

03.12.2021, passed by Central Administrative Tribunal, Allahabad

Bench, Allahabad (5

th

Respondent) in Civil Misc. Contempt Petition

No.330/00070 of 2010 in Original Application No.330/00509 of 2004

(Pankaj Dhar Dubey vs. U.C. Dwadas Shreni and two Others) whereby

the contempt petition so preferred by the petitioner herein was consigned

to record and the notices were discharged on the ground that there had

been no willful disobedience on the part of the alleged contemnors, who

were joined as opposite parties in the above noted contempt petition.

Further relief is also being sought directing the respondents herein to give

promotion to the petitioner on the post of Lab Assistant in the pay scale

of Rs.530-610/- in pursuance of the Railway Board's Letter dated

21.01.1984 and to further declare Section 46 of the Constitution of India

(42

nd

Amendment) Act, 1976 by which Article 323A has been inserted in

the Constitution of India and Sections 5(2) and 5(4) of the Administrative

Tribunals Act, 1985 as unconstitutional, ultra vires and struck down the

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same being violative of Articles 50 and 368 of the Constitution of India.

6.Factual matrix of the case as worded in the present writ petition are

that the petitioner claims himself to be engaged as Substitute Science

Bearer in the pay scale of Rs.2550-3200/- by virtue of the order dated

25.01.2000 passed by the Assistant Personnel Officer, Headquarters,

North Eastern Railway, Gorakhpur. Alleging disparity and differential

treatment the petitioner filed Original Suit No.1136 of 2003, Pankaj Dhar

Dubey vs. Union of India and Others, before the Central Administrative

Tribunal, Allahabad Bench, Allahabad (5

th

respondent) seeking a

direction to be promoted as Lab Assistant in the pay scale of Rs.530-

610/-(pre-revised) in pursuance of the Railway Board's Letter dated

21.01.1984. The Original Application so preferred by the petitioner

herein came to be decided by the 5

th

respondent by virtue of the order

dated 23.09.2003 while granting liberty to the petitioner to file a fresh

representation raising his grievances and the same was directed to be

considered by the Railways. The petitioner has further come up with the

case that on 17.12.2004 the petitioner was granted temporary status with

effect from 23.05.2000 and by virtue of the order dated 28.02.2005 the

petitioner was posted as Chaukidar in the pay scale of Rs.2500-3200/- in

the Telecommunication Department of Railways.

7. The petitioner herein has further averred that he had instituted

Original Application No.509 of 2004 before the 5

th

respondent being

Pankaj Dhar Dubey vs. Union of India and Others seeking following

reliefs:-

“(i) To issue an order or direction setting aside the order dated

22.12.2003 passed by C.P. Office, N.E. Railway, Gorakhpur.

(ii) To issue an order or direction commanding the respondents to

give promotion to the applicant as Lab Assistant in the scale of

Rs.530-610/- in pursuance of Railway Board's letter dated

21.01.1984 after regularizing the applicant in scale of Rs.2550-

3200 in Boys Inter College, N.E. Railway, Gorakhpur.

(iii) To issue an order or direction commanding the respondents to

give seniority, arrears of salary for difference of pay for the post of

Science Bearer and Lab Assistant after completion of one year

service from the date of his appointment excluding four months'

period.”

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8.Record reveals that the Original Application No. 509 of 2004 so

instituted by the petitioner herein came to be disposed of by Central

Administrative Tribunal, Allahabad Bench, Allahabad on 06.12.2006

with the following directions:-

“8. In the result, the O.A. Is finally disposed of with a direction to

the respondents to consider the case of the applicant for promotion

to the post of Lab Assistant in the School run by the N.E.R., if there

is vacancy and if the applicant is otherwise found suitable under

the relevant Rules within a period of six months from the date of

certified copy of this order is produced before them. The order

dated 22.12.2003 (Annexure-1) is rendered ineffective and will not

come in the way of such consideration for promotion. No order as

to costs.”

9.The petitioner herein has further averred in paragraph 13 of the

writ petition that a review application was preferred by the Railways

against the order dated 06.12.2006, which was dismissed by the 5

th

respondent on 10.12.2007 as time barred. The records further reveal that

the Railways preferred Writ Petition No.16050/2008 which was

dismissed on 27.03.2008. The operative portion of the order is being

quoted herein as under:-

"1. Contesting respondent, Pankaj Dhar Dubey, was appointed on

casual basis by the petitioners. He filed an Original Application No.

1136 of 2003 before the Central Administrative Tribunal, Allahabad

Bench, Allahabad for his regularization. This was disposed of on

23rd day of September, 2003 directing the petitioners to decide the

case of contesting respondent. Petitioners rejected the case of

contesting respondent for regulation by the order dated 22nd

December, 2003. Contesting respondent filed another Original

Application No. 509 of 2004 challenging the order dated 22nd

December, 2003, wherein he prayed that he should be regularized as

well as promoted to the post of Lab Assistant. During the pendency

of the said application, contesting respondent was regularized on

Group D post. The Central Administrative Tribunal by its order

dated 6th day of December, 2006 has directed the petitioners to

reconsider the promotion of contesting respondent. Hence this writ

petition.

2. We have hear learned counsel for the petitioners and Sri Bashist

Tiwari, learned counsel for the contesting respondent.

3. Learned Central Administrative Tribunal under the impugned

judgment has sent back the matter to the petitioners for reconsider

of the case of the contesting respondent for promotion. Needless to

add, this consideration has to be done in accordance with law.

4. In view of the aforesaid, we see no justification to interfere in the

matter.

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5. This writ petition is dismissed with the aforesaid observations."

10.In the meantime, it appears that a contempt petition was also

instituted by the petitioner herein in which the following order was

passed:-

"1. Sri A.V. Srivastava, learned counsel for the respondents has

stated at the outset that he has filed Review Application prior to

filing of Review Application against the order passed in Original

Application. Sri B. Tiwari, learned counsel for the applicant states

that the said Review Application has been dismissed on the ground

of limitation and as such the order of this Tribunal ought to have

been complied by the respondents in true spirit.

2. Having heard the counsel for the parties, we are satisfied that

ends of justice would be met if the respondents are directed to

ensure the compliance of the order of this Tribunal passed in the

O.A. within a period of three months from the date of receipt of a

certified copy of this order. In case the compliance is not done

within three months, it would be open to the applicant to file fresh

contempt petition.

3. In view of the above, the CCP is dismissed. Notices are

discharged."

11.Records further reveal that the petitioner herein also instituted an

Execution Application under Section 27 of the Administrative Tribunals

Act, 1985 for execution of the judgment and the order dated 06.12.2006

in which on 18.11.2009 the following order was passed :-

"1. MA (Execution) No. 12 of 2008 : Heard learned counsel for the

parties.

2. Applicant filed OA No. 509 of 2004 praying for direction to set

aside order dated 22.12.2003 passed by C.P. Office, N.E. Railway,

Gorakhpur, to issue an order/direction commanding the

respondents to give promotion to the applicant as Lab. Assistant in

the scale of Rs. 530-610/- in pursuance to Railway Board's letter

dated 21.1.1984 after regularizing the applicant in scale of Rs.

2550-3200/- in Boys Inter College, N.E. Railway, Gorakhpur and

for direction commanding the respondents to give seniority,

arrears of salary for difference of pay for the post of 'Science

Bearer' and Lab Assistant etc. Tribunal vide order dated

06.12.2006, decided OA No. 509 of 2004. Para 5 and 7 of the

Tribunal order dated 6.12.2006 is reproduced below :-

"5. We have considered the respective arguments in the context

of the applicant's claim for promotion to the post of Lab

Assistant. He appears to be correct on the point that the posts

of Lab Assistant were created vide letter dated 6.9.1984

(Annexure-9) of General Manager (P) for Boys High School,

Gorakhpur, run by N.E.R. There is no clear cut denial from the

side of the respondents of the factum of creation of posts of Lab

Assistant. The reply does not say that the said posts were

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subsequently abolished or surrendered or kept in abeyance.

Though there is such plea in respect of the post of Science

Bearer, which the applicant was holding before 20.1.2003. So

to the extent the order dated 22.12.2003 (Annexure-1) says that

there are no posts of Lab Assistant in the School run by N.E.R.

does not appear to be correct.

7. Sri Srivastava may be correct in saying that the casual

worker or worker with temporary status before regularization

may not be eligible for promotion to the post of Lab Assistant.

As on today, the applicant stands regularized in Group 'D' as

Chowkidar, but in a different unit named Signal

Communication Microwave. The question is as to whether a

Group 'D' employees of this unit will be eligible for promotion

to the post of Lab Assistant in the school, run by the N.E.R. The

letter dated 21.1.1984 alone does not appear to be sufficient to

decide the question as it can be construed both ways. No doubt,

para 2 of the letter dated 21.1.1984 does not say that such

Group 'D' employees should be of Laboratory or of the School

run by the N.E.R. Or of a particular unit. But then the Railways

is a big organization divided into different division/units so

without knowing the detailed scheme for filling up the post of

Lab Assistant in the school of N.E.R., it is difficult to

pronounce whether regular Group 'D' employee of a unit,

different to the unit where such vacancies may exist, will or will

not be eligible for such promotion. We leave it to the

authorities concerned to decide the same in the light of the

relevant Rules on the subject."

3. A statement is made at the bar that the respondents challenged

said order by filing Writ Petition in Allahabad High Court which

was dismissed; Contempt Petition against respondent has also been

dismissed.

4. Present Execution Application has been filed seeking Execution

of the order of Tribunal dated 6.12.2006 (referred to above). The

applicant has himself filed copy of order dated 25.4.2008 titled

'Speaking Order', communicated through department letter dated

25.04.2008 (Annexure-5 to the Execution Application). The

relevant extract of the said order reads :-

"...............I find that at present the applicant belongs to

Signal and Telecom department whereas the post of Lab Asst.

which was earlier belonging to Railway School is not existing

at present as such his claim is not considerable."

5. Perusal of the said order shows that observations made in para

no. 7 of the Tribunal order (quoted above) have not been taken into

account.

6. In view of the above said speaking order dated 25.04.2008 is set

aside with direction to the concerned respondent authority to pass

fresh orders (within three months of receipt of certified copy of this

order) and comply with order of Tribunal dated 21.12.2003 in O.A.

No. 509 of 2004.

7. Execution Application No. 12 of 2008 is disposed of subject to

above observations."

12.Eventually, by virtue of the order dated 25.04.2008, the matter

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pertaining to the promotion of the petitioner was found not in favour of

the petitioner herein and accordingly a speaking order was passed by

respondent-General Manager North Eastern Railway, Gorakhpur.

Thereafter the petitioner herein preferred a Contempt Application No. 70

of 2010 before the 5

th

Respondent on which on 09.11.2010 notices were

issued requiring passing of a conditional order for framing of the charges

in case the order passed in Original Application No.509 of 2004 (Pankaj

Dhar Dubey vs. Union of India and Others) is not complied with. The

said sequence of event occasioned the Railways to prefer Writ-A

No.72926 of 2010 (Union of India vs. Pankaj Dhar Dubey and Another)

before this Court, which came to be dismissed by this Court on

17.08.2017. The operative portion of the said order is being quoted as

under:-

“(23) Further, as observed hereinabove, once the Tribunal itself

had issued directions on 22.01.2008 for ensuring the orders for

compliance in the contempt to jurisdiction and leaving it open to

the respondent no. 1 to file a fresh Contempt Application in the

event of non-compliance vide judgment dated 22nd January, 2008,

we see no reason over and above the reasons indicated hereinabove

as to why the respondent no. 1 could not have filed the Contempt

Application when he alleges the order dated 24th February, 2010

to be a contemptuous order which is yet to be examined in the

proceedings before the Tribunal.

(24) The Contention raised on merits as to whether the orders of

the Tribunal were being capable of complied with or not, is a

matter of defence but that by itself cannot be a ground to treat the

proceedings initiated under Section 17 to be without jurisdiction or

unfounded.

(25) Consequently, for all the aforesaid reasons and the facts in the

present case that have emerged, we do not find this to be a case to

invoke our extra-ordinary jurisdiction under Article 226 of the

Constitution of India or our supervisory jurisdiction under Article

227 thereof so as to preempt the proceedings of contempt on the

mere issuance of the notices to the officials of the petitioners.”

13.Now by virtue of the order dated 03.12.2021 passed in Civil Misc.

Contempt Petition No.330/00070 of 2010 in Original Application

No.330/00509 of 2004 (Pankaj Dhar Dubey vs. U.C. Dwadas Shreni and

two Others) the same has been consigned to record and notices so issued

to the respondents herein have been discharged.

14.Sri Vivek Kumar Singh, learned counsel for the respondent no.1-

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Union of India, at the very outset, has raised a preliminary objection

regarding maintainability of the present writ petition before this Court on

the ground that the order which is being impugned in the present

proceedings is an order discharging the alleged contemnors and not

proceeding against them, against which no writ petition under Article

226/227 of the Constitution of India lies before this Court. In order to

buttress his submission he has cited the following judgments:-

(A) T. Sudhakar Prasad vs. Government of A.P. And Others, (2001) 1

SCC 516

(B) Service Bench No.1793 of 2013 (Dr. P.V. Jaganmohan vs. Union of

India), decided on 30

th

May, 2014.

(c) Writ Petition (S/B) No.590 of 2018 (Dr. Harish Kumar vs. Dr. S.C.

Gairola and Others), decided on 20.12.2018

15.On the other hand, Sri Bashist Tiwari, learned counsel for the

petitioner has cited the following judgments in order to substantiate his

argument that the writ petition lies before this Court in the proceeding

under Article 226/227 of the Constitution of India even against the order

wherein the contemnors are discharged:-

(A) L.Chandra Kumar vs. Union of India (1997) 3 SCC 261

(B) T. Sudhakar Prasad (supra)

(c) Delhi Judicial Service Association, Tis Hazari Court, Delhi vs. State of

Gujarat and Others (1991) 4 SCC 406

(D) Sujitendra Nath Singh Roy vs. State of West Bengal, 2015 AIR SCW

1833

16.Sri Tiwari, learned counsel for the petitioner has sought to argue

that in view of the mandate as contained in the judgment of L. Chandra

Kumar (supra), this Court in exercise of jurisdiction as envisaged under

Article 226/227 of the Constitution of India can entertain not only the

writ petition so preferred against the order passed by the Central

Administrative Tribunal under Section 17 of the Central Administrative

Tribunal Act, 1985 but also punish the contemnors in that regard.

According to Sri Tiwari, learned counsel for the petitioner the plenary

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powers so attached to Article 226 of the Constitution of India nowhere

puts any embargo or restricts the scope of Article 226 of the Constitution

of India so as to denude itself from examining the validity of an order

passed by the Central Administrative Tribunal when the Central

Administrative Tribunal abstains itself from exercising the powers as

conferred under Section 17 of the Administrative Tribunal Act, 1985. Sri

Tiwari has further argued that the power so conferred under Article

226/227 of the Constitution of India cannot be negated or circumscribed

even by a constitutional amendment as the High Court in exercise of the

jurisdiction under Article 226/227 of the Constitution of India can

eliminate the contingency of any injustice/illegality so sought to be

committed therein and the power of judicial superintendence is always

available with it.

17.Sri Tiwari, learned counsel for the petitioner has further drawn the

attention of the Court towards the judgment of T. Sudhakar Prasad

(supra) so as to further contend that in the matter of exercise of contempt

jurisdiction, if any material irregularity is being committed by the Central

Administrative Tribunal then it can be always put to naught and the same

can obviously be rectified at the stage of the proceedings under Article

226/227 of the Constitution of India.In nutshell, the submission of the

learned counsel for the petitioner is to the extent that the writ petition is

maintainable before this Court in case of any order so passed by the

Central Administrative Tribunal denuding the exercise of contempt

jurisdiction.

18.Sri Vivek Kumar Singh, learned counsel for the Union of India has

argued that now the issue with regard to the maintainability of the

proceedings under Article 226/227 of the Constitution of India against

the orders discharging the contemnors and not proceeding against them is

no more res integra as in view of the judgments of the Hon'ble Apex

Court in T. Sudhakar Prasad (supra) as well as in the case of Dr. P.V.

Jaganmohan (supra) and Dr. Harish Kumar (supra), the writ petition

does not lie before this Court against the order whereby notices are

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discharged and the contempt proceedings are dropped by the Central

Administrative Tribunal.

19.We have carefully considered the submissions so made by the

learned counsel for the parties and have perused the records and we find

that the present case does not necessitate the occasion to seek response

from the respondents and with the consent of the learned counsel for the

parties the present petition is being decided accordingly.

20.The Parliament of India in exercise of powers so conferred therein

in order to provide for the adjudication or trial by administrative tribunals

of disputes and complaints with respect to recruitment and conditions of

service of persons appointed to public services and posts in connection

with affairs of Union or of any State or of any local or other authority

within the territory of India or under the control of the Government of

India or of [any corporation or society owned or controlled by the

Government in pursuance of Article 323-A of the Constitution] and for

matters connected therewith or incidental thereto enacted an Act by the

name and nomenclature of the Administrative Tribunals Act, 1985.

Section 17 which deals with the provisions pertaining to contempt which

is being quoted in extenso:-

“17. Power to punish for contempt.—A Tribunal shall have, 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 references 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 Solicitor-General or the Additional

Solicitor-General; and

(ii) in relation to an Administrative Tribunal for a State or a Joint

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Administrative Tribunal for two or more States, as a reference to the

Advocate-General of the State or any of the States for which such

Tribunal has been established.”

21.As a matter of fact the Parliament has also enacted an Act by the

name and nomenclature of the Contempt of Courts Act, 1971, which also

contains various provisions pertaining to initiation of contempt

proceedings and culminating them to its terminus point. The issue with

regard to the different facet of the Central Administrative Tribunal Act,

qua its establishment, constitution and its jurisdiction was subject matter

of challenge before the Hon'ble Apex Court in the case of L. Chandra

Kumar (supra) wherein the Constitution Bench of the Hon'ble Apex

Court in paragraph nos.90, 93, 94, 95, 96, 97, 98 and 99 has observed as

under:-

“90. We may first address the issue of exclusion of the power of

judicial review of the High Courts. We have already held that in

respect of the power of judicial review, the jurisdiction of the High

Courts under Article 226/227 cannot wholly be excluded. It has

been contended before us that the Tribunals should not be allowed to

adjudicate upon matters where the vires of legislations is

questioned, and that they should restrict themselves to handling

matters where constitutional issues are not raised. We cannot bring

ourselves to agree to this proposition as that may result in splitting

up proceedings and may cause avoidable delay. If such a view were

to be adopted, it would be open for litigants to raise constitutional

issues, many of which may be quite frivolous, to directly approach

the High Courts and thus subvert the jurisdiction of the Tribunals.

Moreover, even in these special branches of law, some areas do

involve the consideration of constitutional questions on a regular

basis; for instance, in service law matters, a large majority of cases

involve an interpretation of Articles 14, 15 and 16 of the

Constitution. To hold that the Tribunals have no power to handle

matters involving constitutional issues would not serve the purpose

for which they were constituted. On the other hand, to hold that all

such decisions will be subject to the jurisdiction of the High Courts

under Articles 226/227 of the Constitution before a Division Bench

of the High Court within whose territorial jurisdiction the Tribunal

concerned falls will serve two purposes. While saving the power of

judicial review of legislative action vested in the High Courts

under Article 226/227 of the Constitution, it will ensure that

frivolous claims are filtered out through the process of adjudication

in the Tribunal. The High Court will also have the benefit of a

reasoned decision on merits which will be of use to it in finally

deciding the matter.

93. Before moving on to other aspects, we may summarise our

conclusions on the jurisdictional powers of these Tribunals. The

Tribunals are competent to hear matters where the vires of statutory

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provisions are questioned. However, in discharging this duty, they

cannot act as substitutes for the High Courts and the Supreme Court

which have, under our constitutional setup, been specifically

entrusted with such an obligation. Their function in this respect is

only supplementary and all such decisions of the Tribunals will be

subject to scrutiny before a Division Bench of the respective High

Courts. The Tribunals will consequently also have the power to test

the vires of subordinate legislations and rules. However, this power

of the Tribunals will be subject to one important exception. The

Tribunals shall not entertain any question regarding the vires of

their parent statutes following the settled principle that a Tribunal

which is a creature of an Act cannot declare that very Act to be

unconstitutional. In such cases alone, the concerned High Court

may be approached directly. All other decisions of these Tribunals,

rendered in cases that they are specifically empowered to adjudicate

upon by virtue of their parent statutes, will also be subject to

scrutiny before a Division Bench of their respective High Courts. We

may add that the Tribunals will, however, continue to act as the only

courts of first instance in respect of the areas of law for which they

have been constituted. By this, we mean that it will not be open for

litigants to directly approach the High Courts even in cases where

they question the vires of statutory legislations (except, as

mentioned, where the legislation which creates the particular

Tribunal is challenged) by overlooking the jurisdiction of the

concerned Tribunal.

94. The directions issued by us in respect of making the decisions of

Tribunals amenable to scrutiny before a Division Bench of the

respective High Courts will, however, come into effect prospectively

i.e. will apply to decisions rendered hereafter. To maintain the

sanctity of judicial proceedings, we have invoked the doctrine of

prospective over-ruling so as not to disturb the procedure in relation

to decisions already rendered.

95. We are also required to address the issue of the competence of

those who man the Tribunals and the question of who is to exercise

administrative supervision over them. It has been urged that only

those who have had judicial experience should be appointed to such

Tribunals. In the case of Administrative Tribunals, it has been

pointed out that the administrative members who have been

appointed have little or no experience in adjudicating such disputes;

the Malimath Committee has noted that at times, IPS Officers have

been appointed to these Tribunals. It is stated that in the short

tenures that these Administrative Members are on the Tribunal, they

are unable to attain enough experience in adjudication and in cases

where they do acquire the ability, it is invariably on the eve of the

expiry of their tenures. For these reasons, it has been urged that the

appointment of Administrative Members to Administrative Tribunals

be stopped. We find it difficult to accept such a contention. It must be

remembered that the setting-up of these Tribunals is founded on the

premise that specialist bodies comprising both trained

administrators and those with judicial experience would, by virtue of

their specialised knowledge, be better equipped to dispense speedy

and efficient justice. It was expected that a judicious mix of judicial

members and those with grass- roots experience would best serve

this purpose. To hold that the Tribunal should consist only of judicial

members would attack the primary basis of the theory pursuant to

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which they have been constituted. Since the Selection Committee is

now headed by a Judge of the Supreme Court, nominated by the

Chief Justice of India, we have reason to believe that the Committee

would take care to ensure that administrative members are chosen

from amongst those who have some background to deal with such

cases.

96. It has been brought to our notice that one reason why these

Tribunals have been functioning inefficiently is because there is no

authority charged with supervising and fulfilling their administrative

requirements. To this end, it is suggested that the Tribunals be made

subject to the supervisory jurisdiction of the High Courts within

whose territorial jurisdiction they fall. We are, however, of the view

that this may not be the best way of solving the problem. We do not

think that our constitutional scheme requires that all adjudicatory

bodies which fall within the territorial jurisdiction of the High

Courts should be subject to their supervisory jurisdiction. If the idea

is to divest the High Courts of their onerous burdens, then adding to

their supervisory functions cannot, in any manner, be of assistance

to them. The situation at present is that different Tribunals

constituted under different enactments are administered by different

administrative departments of the Central and the State

Governments. The problem is compounded by the fact that some

Tribunals have been created pursuant to Central Legislations and

some others have been created by State Legislations. However, even

in the case of Tribunals created by Parliamentary legislations, there

is no uniformity in administration. We are of the view that, until a

wholly independent agency for the administration of all such

Tribunals can be set-up, it is desirable that all such Tribunals should

be, as far as possible, under a single nodal Ministry which will be in

a position to oversee the working of these Tribunals. For a number

of reasons that Ministry should appropriately be the Ministry of

Law. It would be open for the Ministry, in its turn, to appoint an

independent supervisory body to oversee the working of the

Tribunals. This will ensure that if the President or Chairperson of

the Tribunal is for some reason unable to take sufficient interest in

the working of the Tribunal, the entire system will not languish and

the ultimate consumer of justice will not suffer. The creation of a

single umbrella organisation will, in our view, remove many of the

ills of the present system. If the need arises, there can be separate

umbrella organisations at the Central and the State levels. Such a

supervisory authority must try to ensure that the independence of the

members of all such Tribunals is maintained. To that extent, the

procedure for the selection of the members of the Tribunals, the

manner in which funds arc allocated for the functioning of the

Tribunals and all other consequential details will have to be clearly

spelt out.

97. The suggestions that we have made in respect of appointments to

Tribunals and the supervision of their administrative function need

to be considered in detail by those entrusted with the duty of

formulating the policy in this respect. That body will also have to

take into consideration the comments of experts bodies like the LCI

and the Malimath Committee in this regard. We, therefore,

recommend that the Union of India initiate action in this behalf and

after consulting all concerned, place all these Tribunals under one

single nodal department, preferably the Legal Department.

14

98. Since we have analysed the issue of the constitutional validity

of Section 5(6) of the Act at length, we may no pronounce our

opinion on this aspect. Though the vires of the provision was not in

question in Dr. Mahabal Ram's case, we a believe that the approach

adopted in that case, the relevant portion of which has been

extracted in the first part of this judgment, is correct since it

harmoniously resolves the manner in which Sections

5(2) and 5(6) can operate together. We wish to make it clear that

where a question involving the interpretation of a statutory provision

or rule in relation to the Constitution arises for the consideration of

a single Member Bench of the Administrative Tribunal, the proviso

toSection 5(6) will automatically apply and the Chairman or the

Member concerned shall refer the matter to a Bench consisting of at

least two Members, one of whom must be a Judicial Member. This

will ensure that questions involving the vires of a statutory provision

or rule will never arise for adjudication before a single Member

Bench or a Bench which does not consist of a Judicial Member. So

construed, Section 5(6) will no longer be susceptible to charges of

unconstitutionality.

99. In view of the reasoning adopted by us, we hold that Clause 2(d)

of Article 323A and Clause 3(d) of Article 323B, to the extent they

exclude the jurisdiction of the High Courts and the Supreme Court

under Articles 226/227 and 32 of the Constitution, are

unconstitutional. Section 28 of the Act and the "exclusion of

jurisdiction" clauses in all other legislations enacted under the aegis

of Articles 323A and 323B would, to the same extent, be

unconstitutional. The jurisdiction conferred upon the High Courts

under Articles 226/227 and upon the Supreme Court under Article

32 of the Constitution is part of the inviolable basic structure of our

Constitution. While this jurisdiction cannot be ousted, other courts

and Tribunals may perform a supplemental role in discharging the

powers conferred by Articles 226/227 and 32 of the Constitution.

The Tribunals created under Article 323A and Article 323B of the

Constitution are possessed of the competence to test the

constitutional validity of statutory provisions and rules. All decisions

of these Tribunals will, however, be subject to scrutiny before a

Division Bench of the High Court within whose jurisdiction the

concerned Tribunal falls. The Tribunals will, nevertheless, continue

to act like Courts of first instance in respect of the areas of law for

which they have been constituted. It will not, therefore, be open for

litigants to directly approach the High Courts even in cases where

they question the vires of statutory legislations (except where the

legislation which creates the particular Tribunal is challenged) by

overlooking the jurisdiction of the concerned Tribunal.Section

5(6) of the Act is valid and constitutional and is to be interpreted in

the manner we have indicated.”

22.Yet in the case of T. Sudhakar Prasad (supra) the Hon'ble Apex

Court had the occasion to consider the proceedings relating to contempt

jurisdiction of the Central Administrative Tribunal, wherein the Hon'ble

Apex Court in paragraph nos.16 and 17 has observed as under:-

15

“16. The Constitution Bench invoked the doctrine of prospective

overruling and made its directions to come into effect

prospectively, i.e., from the date of its judgment.

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 court or tribunals subordinate

to 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 High Court or to file a

complaint under Section 193, 219 and 228 of 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 Association (supra) or L. Chandra

Kumar (supra) 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 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 the Parliament to

enact a law specifying the jurisdiction and powers, including the

power to punish for contempt, being conferred on 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,

16

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 jurisdiction of High Court

under Article 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 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 Administrative Tribunals Act is a piece of legislation by

reference. The provisions of Contempt of Courts Act are not as if

lifted and incorporated in the text of Administrative Tribunals Act

(as is in the case of legislation by incorporation); they remain

there where they are yet while reading the provisions of Contempt

of Courts Act in the context of Tribunals, the same will be so read

as to read the word Tribunal in place of the word High Court

wherever it occurs, subject to the modifications set out in Section

17 of the Administrative Tribunals Act. Section 19 of the Contempt

of Courts Act, 1971 provides for appeals. In its text also by virtue

of Section 17 of the Administrative Tribunals Act, 1985 the word

High Court shall be read as Tribunal. Here, by way of abundant

caution, we make it clear that the concept of intra-tribunal appeals

i.e. appeal from an order or decision of a member of a Tribunal

sitting singly to a bench of not less than two members of the

Tribunal is alien to the Administrative Tribunals Act, 1985. The

question of any order made under the provisions of the Contempt

of Courts Act, 1971 by a member of the Tribunal sitting singly, if

the rules of business framed by the Tribunal or the appropriate

government permit such hearing, being subjected to an appeal

before a Bench of two or more members of 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 tribunal holding the contemnor

guilty and punishing for contempt shall also be subject to judicial

scrutiny of High Court under Article 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 Administrative Tribunal on matters

covered by Section 14 (1) of Administrative Tribunals Act and

orders punishing for contempt under section 19 of the Contempt of

Courts Act read with Section 17 of Administrative Tribunals Act, is

this : as against the former there is no remedy of appeal statutorily

provided, but as against the later statutory remedy of appeal is

provided by Section 19 of Contempt of Courts Act itself.”

23.Notably a Division Bench of this Court sitting at Lucknow had the

occasion to consider the issue regarding the maintainability of writ

proceedings under Article 226/227 of the Constitution of India in the

matters wherein challenge was laid to the orders whereby the Central

Administrative Tribunal did not proceed with the contempt and

17

discharged the contemnors despite the allegations of the applicant therein

that the orders put to compliance were not complied with.

24.In the case of Dr. P.V. Jaganmohan (supra) the Division Bench of

this Court has observed as under:-

"…....In T. Sudhakar Prasad case (supra), the facts were that a

contempt application was moved invoking the contempt jurisdiction

of Andhra Pradesh Administrative Tribunal under Section 17 of the

Act seeking initiation of proceedings against the Principal

Secretary, Irrigation and CAD Department, alleging therein that

there was willful disobedience by the contemner of an order passed

by the Tribunal in favour of the applicant. The Tribunal initiated

the proceedings. The State of Andhra Pradesh and the Principal

Secretary filed a writ petition (CWP No. 34841 of 1997) in the High

Court of Andhra Pradesh laying challenge to the jurisdiction of the

Tribunal to take cognizance of the contempt case. In another

matter, an application was also moved invoking contempt

jurisdiction of the High Court, without approaching the Tribunal

under Section 17 of the Act, and complaining of willful

disobedience of an order passed by the Andhra Pradesh

Administrative Tribunal. In both the matters, question arose as to

whether such proceedings were appropriately maintainable before

the High Court or the Administrative Tribunal. The issue has been

disposed of by a Division Bench of the Andhra Pradesh High Court

holding therein that in view of the decision rendered by the

Supreme Court in L. Chandra Kumar v. Union of India [(1997) 3

SCC 261 : 1997 SCC (L&S) 577], Section 17 of the Administrative

Tribunals Act, 1985 does not survive and consequently, the

Administrative Tribunals set up under the Administrative Tribunals

Act, 1985 cannot exercise the contempt jurisdiction under Section

17 of the said Act, as the same had become non est under law. The

contempt proceedings before the Administrative Tribunal are set

aside as being devoid of jurisdiction and the applicants were at

liberty to initiate contempt proceedings by following the procedure

as applicable to the contempt of subordinate courts provided under

the provisions of the Contempt of Courts Act, 1971 and the rules

framed thereunder by the Andhra Pradesh High Court. In other

contempt application, same view was taken. The said order of the

High Court was put to challenge before the apex court and the apex

court in Para-16 of the said judgment held as under:

…...

In the aforesaid case, the apex court found that where the remedy of

statutory appeal is provided, the appeal shall lie before the

Supreme Court only and a categorical finding has been recorded to

the effect that any order or decision of the Tribunal punishing for

contempt is appealable under Section 19 of the Act to the Supreme

Court only. The reliance placed by the learned counsel for the

petitioner upon T. Sudhakar Prasad case (supra) is only in respect

of the words "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

18

governing the discretion of the High Court to interfere with the

pending proceedings and upset the interim or interlocutory orders

of the Tribunals."

The twin conditions have been taken into consideration and a

particular portion of the judgment being relied upon by the counsel

for the petitioner is wholly misconceived. Judgment has to be read

as a whole and if the judgment is read as a whole, then the only

outcome would be that, for punishing for contempt, appeal would

be maintainable before the Supreme Court.

In a later case of R.Mohajan (supra), the appellants were not fully

implementing the orders, therefore, the Tribunal, vide order dated

23-3-2010, directed for issuance of Rule 8 notice to the

contemnors/appellants returnable within two months and directed

to list the matter for orders on 3-5-2010. On 30-3-2010, counsel for

the contemnors/appellants appeared before the Tribunal and placed

on record various documents to show that the orders have been

complied with. Not satisfied with the report filed by the

Department, the Tribunal passed the order dated 11-6-2010

directing the contemnors/appellants to present before it to receive

charges of contempt and adjourned the matter for 30-7-2010.

Against the said order, the contenmors preferred an appeal. The

apex court taking into consideration L. Chandra Kumar case

(supra) and T. Sudhakar Prasad case (supra), came to the

conclusion that the appeal was very much maintainable before the

Supreme Court and in Para-9 of the said judgment, it was held as

under:

"9. In view of the clarification by the three-Judge Bench of this

Court in T. Sudhakar Prasad (supra), we reject the objection as

to the maintainability of the present appeal and hold the same

as maintainable."

So it is clear from the above finding that not only in respect of

punishment under the Contempt of Courts Act, but also in respect

of interlocutory orders, the appeal has been found to be

maintainable by the apex court.

More or less similar question arose before the Supreme Court as to

what will be position where a contemner has been discharged from

contempt proceedings by the High Court. If the proceedings have

been dropped under the Contempt of Courts Act, then whether the

appeal would be maintainable before the Division Bench of the

High Court as provided under Section 19 of the Contempt of

Courts Act or the Special Leave Petition would be maintainable

under Article 136 of the Constitution of India.

In the case of Mahboob S. Allibhoy (supra), the facts were that

contempt notice was issued and ultimately the proceedings for

contempt were dropped against the contemners. In connection with

the said dispute, a notice was issued to the contemners as to why a

complaint be not filed against them under Sections 191, 192, 209

and 210 of the Indian Penal Code. The said order was subjected to

challenge before the apex court. The apex court found that no

appeal would be maintainable against the order dropping

proceeding for contempt or refusing to initiate the proceeding for

contempt, which is apparent not only from sub-section (1) of

Section 19 but also from sub-section (2) of Section 19 which

provides that pending any appeal the appellate court may order

19

that if the appellant is in confinement, he be released on bail and

the appeal be heard notwithstanding that the appellant has not

purged his contempt. While considering the maintainability of the

appeal, it was held in the following form:

"4.....This Court in the case of Baradakanta Mishra v. Justice

Gatikrushna Misra, C.J. of the Orissa H.C., AIR 1974 SC 2255 :

(1975) 1 SCR 524, said: ...Where the court rejects a motion or a

reference and declines to initiate a proceeding for contempt, it

refuses to assume or exercise jurisdiction to punish for contempt

and such a decision cannot be regarded as a decision in the

exercise of its jurisdiction to punish for contempt. Such a decision

would not, therefore, fall within the opening words of Section 19,

sub-section (1) and no appeal would lie against it as of right

under that provision.

Again in the case of D.N. Taneja v. Bhajan Lal [(1988) 3 SCC 26,

it was said: "The right of appeal will be available under sub-

section (1) of Section 19 only against any decision or order of a

High Court passed in the exercise of its jurisdiction to punish for

contempt. In this connection, it is pertinent to refer to the

provision of Article 215 of the Constitution which provides that

every High Court shall be a court of record and shall have all the

powers of such a court including the power to punish for contempt

of itself. Article 215 confers on the High Court the power to

punish for contempt of itself. In other words, the High Court

derives its jurisdiction to punish for contempt from Article 215 of

the Constitution. As has been noticed earlier, an appeal will lie

under Section 19(1) of the Act only when the High Court makes an

order or decision in exercise of its jurisdiction to punish for

contempt. It is submitted on behalf of the respondent and, in our

opinion rightly, that the High Court exercises its jurisdiction or

power as conferred on it by Article 215 of the Constitution when it

imposes a punishment for contempt. When the High Court does

not impose any punishment on the alleged contemnor, the High

Court does not exercise its jurisdiction or power to punish for

contempt. The jurisdiction of the High Court is to punish. When no

punishment is imposed by the High Court, it is difficult to say that

the High Court has exercised its jurisdiction or power as

conferred on it by Article 215 of the Constitution."

No appeal is maintainable against an order dropping proceeding

for contempt or refusing to initiate a proceeding for contempt is

apparent not only from sub-section (1) of Section 19 but also from

sub-section (2) of Section 19 which provides that pending any

appeal the appellate court may order that-

(a) the execution of the punishment or the order appealed against

be suspended;

(b) if the appellant is in confinement, he be released on bail; and

(c) the appeal be heard notwithstanding that the appellant has not

purged his contempt.

Sub-section (2) of Section 19 indicates that the reliefs provided

under clauses (a) to (c) can be claimed at the instance of the

person who has been proceeded against for contempt of court.

5. But even if no appeal is maintainable on behalf of the person at

whose instance a proceeding for contempt had been initiated and

20

later dropped or whose petition for initiating contempt

proceedings has been dismissed, he is not without any remedy. In

appropriate cases he can invoke the jurisdiction of this Court

under Article 136 of the Constitution and this Court on being

satisfied that it was a fit case where proceeding for contempt

should have been initiated, can set aside the order passed by the

High Court. In suitable cases, this Court has to exercise its

jurisdiction under Article 136 of the Constitution in the larger

interest of the administration of justice."

So the question regarding the maintainability of the writ petition

against the discharge of contempt proceedings as held in the above

case, the apex court has ruled that the appeal would be

maintainable against an order discharging the contemner from

contempt proceedings.

In the case of Smt. R.S. Sujatha (supra), the Tribunal issued

contempt notice and ultimately convicted the contemner upto the

rising of the Court alonwith a fine of Rs.2000/-. The said order was

challenged before the Division Bench of Karnataka High Court

and the Division Bench of the Karnataka High Court placing

reliance upon the case of T. Sudhakar Prasad (supra), came to the

conclusion that the appeal would be maintainable before the

Supreme Court in such circumstances. In Paragraphs-7 and 8 of

the said judgment, the Court held as under:

"7. .....The first portion extracted above is relied on by the

learned counsel for the petitioner and the second portion is

relied on by the respondents. A careful reading of the decision

of the Supreme Court makes it clear that once an order is

passed by an Administrative Tribunal punishing a party for

contempt, the remedy is only by way of appeal to the Supreme

Court under Section 19 of Contempt of Courts Act, 1971 and

not by seeking judicial review under Article 226/227 of the

constitution. The observation that Tribunal would be

amenable to the jurisdiction of the High Court under Article

226/227 of the constitution cannot be read in isolation. In fact

similar observations are made in CHANDRA KUMAR also.

The said observations should be read with the subsequent

statement of law. The mere fact that the order imposing

punishment for contempt is passed in violation of principles of

natural justice or by not following the procedure

contemplated under Section 17 of the AT Act read with the CC

[CAT] Rules, would not, by itself, mean that instead of filing

an appeal, the party aggrieved can challenge the order in a

proceedings under Article 226/227 of the Constitution.

8. Though the order dated 19.12.2002 which is under

challenge is passed in a proceedings initiated and pending

under Section 19 of the AT Act, it is a final order in so far as

the proceedings initiated for contempt are concerned.

Therefore, it has to be held that an appeal under Section 19 of

the Contempt of Courts Act and not a writ petition under

Article 226/227 of the Constitution of India is the remedy of

the petitioner."

The legal position, which crystallizes from the case laws referred to

21

hereinabove, is that against an order dropping/discharging

contempt proceedings, the appeal would be maintainable before the

apex court as it cannot be inferred that where no remedy of

statutory appeal is provided, then jurisdiction can be created under

Article 226/227 of the Constitution of India before the High Court.

The conviction under Section 19 has to be considered in reference to

the discharge proceedings and when the discharge order is without

a remedy, then there is no provision for intra court appeal before the

Tribunal or the rules framed therein.

The reasoning given in Mahboob S. Allibhoy case (supra) applies

with full force in the present case, therefore, we hold that the writ

petition against the discharge proceedings would not be

maintainable and the appropriate remedy to the petitioner is to

approach the apex court by way of appeal under Article 136 of the

Constitution of India.”

25.Further the High Court of Uttarakhand at Nainital in Dr. Harish

Kumar (supra) had also the occasion to consider the maintainability of

the writ petition wherein the contempt proceedings were dropped

initiated from the orders passed by the Central Administrative Tribunal,

wherein the Hon'ble Apex Court in paragraph nos.14, 17, 18, 19, 20, 21,

22, 23, 24 and 25 has observed as under:-

“14. In examining this question, it must be borne in mind that a

contempt proceeding is not a dispute between two parties. The

proceeding is, primarily, between the Court and the person who is

alleged to have committed Contempt of Court. The person, who

informs the court or brings to its notice that Contempt of such Court

has been committed, does not stand in the position of a prosecutor.

He simply assists the Court in ensuring that its dignity and majesty

is maintained and upheld. It is for the Court which initiates the

proceedings to decide, considering the facts and circumstances of

the case, whether the person, against whom such proceeding has

been initiated, should be punished or discharged [State of

Maharashtra vs. Mahboob S. Allibhoy and another[5]]. As the

petitioner is merely an informant, who has brought to the notice of

the Court that its orders have been violated, he cannot claim to be a

person aggrieved by the order passed by the Tribunal discharging

the contemnors, and in refusing to punish them on the ground that

no case of willful contempt has been made out.

17. A right of appeal is available under Section 19(1) only against

any decision or order of a High Court passed in the exercise of its

jurisdiction to punish for contempt. The High Court derives its

jurisdiction to punish for contempt from Article 215 of the

Constitution. Article 215 of the Constitution of India does not confer

any new jurisdiction or status on the High Courts. It merely

recognises that the High Courts are Courts of Record and, by virtue

of being Courts of Record, have inherent jurisdiction to punish for

contempt of themselves. Such inherent power to punish for contempt

is summary. It is not governed or limited by any rule of procedure

excepting principles of natural justice. The jurisdiction

contemplated by Article 215 is inalienable. It cannot be taken away

22

or whittled down by any legislative enactment subordinate to the

Constitution. The provisions of the Contempt of Courts Act, 1971

are in addition to and not in derogation of Article 215 of the

Constitution. The provisions of the Contempt of Courts Act, 1971

cannot be used for limiting or regulating the exercise of jurisdiction

contemplated by the said Article. (T. Sudhakar Prasad6). The High

Court exercises its jurisdiction or power, as conferred on it by

Article 215 of the Constitution, when it imposes a punishment for

contempt. When it decides not to impose any punishment on the

alleged contemnor, the High Court does not exercise its jurisdiction

or power to punish for contempt. The jurisdiction of the High Court

is to punish. When no punishment is imposed by the High Court, it is

difficult to hold that the High Court has exercised its jurisdiction or

power as conferred on it by Article 215 of the Constitution. [D.N.

Taneja vs. Bhajan Lal[7]; Mahboob S. Allibhoy5].

18. On whether an appeal lies against the order of the Tribunal,

punishing the respondents for contempt, the Supreme Court, in T.

Sudhakar Prasad6, observed:

"..............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 court or Tribunals

sub-ordinate to 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 High

Court or to file a complaint under Sections 193, 219 and 228 of

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 Association vs.

Union of India, (1998) 4 SCC 409, or L. Chandra Kumar, (1997)

3 SCC 261 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 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 the Parliament to

enact a law specifying the jurisdiction and powers, including the

23

power to punish for contempt, being conferred on 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 jurisdictional 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 jurisdiction of 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 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.................."

19. The Supreme Court, in L. Chandra Kumar vs. Union of India &

others[8], has nowhere said that orders of Tribunals holding the

contemnor guilty and punishing for contempt shall also be subjected

to judicial scrutiny of the High Court under Article 226/227 of the

Constitution, inspite of the remedy of a statutory appeal being

available. The distinction between orders passed by Administrative

Tribunal on matters covered by Section 14(1) of the 1985 Act and

orders punishing for contempt under Section 19 of the Contempt of

Courts Act read with Section 17 of 1985 Act is this: as against the

former there is no remedy of appeal statutorily provided, but as

against the latter, a statutory remedy of appeal is provided by

Section 19 of the Contempt of Courts Act itself. Any order or

decision of the Tribunal punishing for contempt is appealable, under

Section 19 of the Contempt of Courts Act , only to the Supreme

Court. [T. Sudhakar Prasad6; R. Mohajan and others vs. Shefali

Sengupta and others[9]]

20. That no appeal is maintainable against an order dropping

proceeding for contempt, or in refusing to initiate a proceeding for

contempt, is apparent from sub section (1) of Section 19 (Mahboob

S. Allibhoy5). Where the Court declines to initiate proceedings for

contempt, it refuses to assume or exercise jurisdiction to punish for

contempt, and such a decision cannot be regarded as a decision in

the exercise of its jurisdiction to punish for contempt. Such a

decision would not, therefore, fall within the opening words of

24

Section 19 (l), and no appeal would lie against it as of right under

that provision. [Baradakanta Mishra vs. Mr. Justice Gatikrushna

Misra C.J. of the Orissa H.C.[10]; Mahboob S. Allibhoy5]. When

the finding is that the alleged contemnor did not wilfully disobey the

order, there is no order punishing the respondent for violation of the

order; and, accordingly, an appeal under Section 19 would not lie.

[J.S. Parihar vs. Ganpat Duggar & others[11]]. While an appeal

would lie to the Supreme Court, against the order of the Tribunal

exercising its jurisdiction to punish for contempt, no appeal would

lie against the order of the Tribunal refusing to exercise jurisdiction

to punish for contempt.

21. While it is clear that no appeal would lie against the order

passed by the Administrative Tribunal refusing to punish the

respondents/contemnors in the exercise of its jurisdiction under

Section 17 of the 1985 Act (which confers on them the power of

contempt akin to the High Court), the petitioners would contend

that, since the power of judicial review exercised by this Court under

Article 226 of the Constitution of India is a part of the basic

structure of the Constitution, the provisions of the Contempt of

Courts Act or Section 17 of the 1985 Act would not come in its way

to set aside the order passed by the Administrative Tribunal refusing

to punish the respondents/contemnors for contempt.

22. Subordination of Tribunals and Courts functioning within the

territorial jurisdiction of a High Court can be either judicial or

administrative or both. The power of superintendence exercised by

the High Court under Article 227 of the Constitution is judicial

superintendence and not administrative superintendence, such as the

one which vests in the High Court under Article 235 of the

Constitution over subordinate courts. In L. Chandra Kumar8, the

Constitution Bench did not agree with the suggestion that the

Tribunals be made subject to the supervisory jurisdiction of the High

Courts within whose territorial jurisdiction they fall, as the

Constitutional scheme does not require that all adjudicatory bodies,

which fall within the territorial jurisdiction of a High Court, should

be subject to its supervisory jurisdiction, i.e. the supervision of the

administrative functioning of the Tribunals. (T. Sudhakar Prasad6)

23. Administrative Tribunals are alternative institutional

mechanisms designed to be no less effective than the High Court,

but, at the same time, not to negate the judicial review jurisdiction of

Constitutional Courts. The Administrative Tribunals are not

assigned a status equivalent to that of the High Court and, for the

purpose of judicial review or judicial superintendence, they are

subordinate to the High Court. High Courts are creatures of the

Constitution, and their Judges hold constitutional office having been

appointed under the Constitution. The Tribunals are creatures of

statute and their members are statutorily appointed and hold a

statutory office. [T. Sudhakar Prasad6; State of Orissa vs. Bhagaban

Sarangi[12]]. There is no anathema in the Tribunal exercising

jurisdiction of the High Court and in that sense being supplemental

or additional to the High Court, but at the same time not enjoying a

status equivalent to the High Court, and also being subject to

judicial review and judicial superintendence of the High Court. (T.

Sudhakar Prasad6).

24. While the powers of the High Court under Articles 226 and 227

25

of the Constitution of India are, no doubt, a part of the basic

structure of the Constitution of India (L. Chandra Kumar8), and

such a power cannot be negated or circumscribed even by a

constitutional amendment let alone legislation - plenary or

subordinate, the distinction between existence of the power and its

exercise must be borne in mind. The mere existence of a power does

not justify the exercise of the power. [Rattan Bai and another vs.

Ram Dass and others[13]]. While the powers of judicial review

conferred on the High Court under Article 226 of the Constitution of

India, and the power of judicial superintendence conferred on it

under Article 227 of the Constitution of India are, no doubt,

extremely wide, its exercise is hedged by self imposed limitations.

The High Court would not exercise its power of judicial review akin

to that of an appellate Court to hear and adjudicate the writ petition

on its merits. In the exercise of its powers of judicial review, the

High Court would not substitute its views for that of the

Administrative Tribunal to come to a different conclusion or to

examine the order on its merits, and hold that the Administrative

Tribunal had erred in not punishing the respondents-contemnors. In

the exercise of its jurisdiction, under Article 226/227 of the

Constitution of India, the High Court would also not take upon itself

the task of imposing punishment itsjnelf or to direct the Tribunal to

do so.

25. Ordinarily the High Court, in the exercise of its powers of

judicial review under Article 226 of the Constitution of India and its

power of judicial superintendence under Article 227 of the

Constitution of India, would not interfere with the order of the

Tribunal, passed in the exercise of its contempt jurisdiction under

Section 17 of the 1985 Act, discharging the contemnors after holding

that no case of willful contempt was made out against the

respondents.”

26.Much reliance has been placed upon by the learned counsel for the

petitioner upon the judgment in the case of L.Chandra Kumar (supra)

so as to contend that this Court can exercise the jurisdiction under Article

226/227 of the Constitution of India as there is no fetter to restrict the

exercise of the powers under preliminary jurisdiction. However, this

Court finds that the judgment in the case of the L.Chandra Kumar

(supra) did not deal with the issue regarding maintainability of writ

proceedings against the order passed by Central Administrative Tribunal

in the contempt jurisdiction whereby the contempt proceedings were

closed and the notices were discharged.

27.So far as the reliance and reference so placed upon by the learned

counsel for the petitioner in the case of Sujitendra Nath Singh (supra) is

concerned, the same is with respect to West Bangal Land Reforms and

Tenancy Tribunal refusing to initiate contempt proceedings. More so, the

26

judgment in the case of Delhi Judicial Service Association, Tis Hazari

Court, Delhi (supra) is also not applicable as the said judgment does not

deal with the provisions of the Contempt of Courts, 1971.

28.Analysis of the judgment of this Court in the case of Dr. P.V.

Jaganmohan (supra) will reveal that this Court has mandated that writ

petition challenging the order passed by Central Administrative Tribunal

dropping the contempt proceedings and discharging the notice is not

amenable to the jurisdiction under Article 226 of the Constitution and

further in the case of Dr. Harish Kumar (supra) a Division Bench of the

Hon'ble High Court at Uttarakhand had opined that ordinarily High Court

in exercise of the powers of judicial review under Article 226 of the

Constitution of India as well as the powers so conferred under Article

227 of the Constitution of India possessing judicial superintendence

would not interfere with an order passed by the Central Administrative

Tribunal in exercise of its contempt jurisdiction under Section 17 of the

Central Administrative Tribunals Act while discharging the contemnours

after holding that no case of of willful contempt is made out, however,

this Court is proceeding to make analysis of the issue with regard to the

fact whether the Tribunal was justified in dropping the charges and

discharging the contemnors or not.

29.This Court finds that the order passed in Original Application

No.509 of 2004 by the 5

th

Respondent on 06.12.2006 as extracted above

reveals that the original application so preferred by the petitioner herein

was disposed of with the direction to the official respondents to consider

the case of the petitioner for promotion to the post of Lab Assistant in the

School run by N.E.R. if there is any vacancy and if the petitioner herein

is found suitable under the relevant Rules, within a period of six months

from the date of a certified copy is produced before them and the order

so negating the claim of the petitioner dated 22.12.2003 was rendered in

effective and was directed not to come in the way of consideration of the

claim of the petitioner for promotion. Meaning thereby that the order

itself was conditional, however, subject to two essential conditions (a)

27

existence of vacancy (b) suitability of the petitioner under relevant Rules.

The order passed by the Contempt Court on 03.12.2021 which is subject

matter of challenge before this Court records a specific stand taken by the

respondents on the basis of an additional affidavit dated 13.05.2019 that

there is no vacancy of Lab Assistant existing with the school run by

N.E.R. It has also been recited in the order under challenge that vide

order dated 07.11.2017, the petitioner herein has been posted from the

post of Chaukidar under Divisional Signal and Telecommunication

Engineer/N.E.R./Gorakhpur to Lab Attendant, Level-1 (Grade Pay 1800)

in the North Eastern Girls Inter College, Gorakhpur and an order has

been passed entitling him financial up-gradation which was due on

24.05.2000 and making admissible to MACPs. The factual position so

recited in the order dated 03.12.2021 under challenge has not been

disputed by the petitioner and the affidavit so mentioned therein have

also not been annexed with the writ petition. More so though allegation

has been made in the petition with regard to the fact that there are various

posts lying vacant for consideration of the claim of the petitioner for

promotion to Lab Assistant while referring to Annexure-14, at page 130

which happens to be the composition of the Railway School Staff but this

Court finds inability to even go to the said question particularly in

absence of any specific documents as well as the affidavits so filed before

the Tribunal. Nonetheless this Court in the case of Santosh Kumar

Srivastava vs. The Managing Director, U.P. Rajiya Nirman Nigam Ltd.

And others, reported in [(2001) 1 UPLBEC 642) has held in paragraphs

10 to 17 as under:-

“10. Inspite of my anxious consideration, I am not persuaded with the

contention for the reason that the direction of this Court was two-fold,

firstly to declare the result and secondly to consider their cases for

appointment in accordance with law keeping in view the vacancy

position. First part of direction has been complied with by declaring

the result and, therefore, now the controversy centres round to the

second part only. The second part of the order is clear and admits only

one interpretation, that to consider them for appointment provided

there is vacancy. The order of the Division Bench is "to consider their

cases for appointment in accordance with law keeping in view the

vacancy position". Therefore, in the absence of vacancy, they are not

required to be considered. In order words, consideration of their claim

28

for appointment in the event of their being declared successful, is

dependent on the availability of the posts. Respondents in their

counter-affidavit have disclosed the existing number of sanctioned

posts of Sub-Engineers and the number of Sub-Engineers who are

already working in the Nigam (Corporation). It appears that due to

financial constraint, the Nigam with the approval of the State

Government decided to down size their strength. Consequently, they

reduced the posts of Sub-Engineers from 443 to 330. Therefore, the

second part of the direction being dependent on the vacancy position,

in the absence of any vacancy, was not possible to be carried out and

therefore, in the facts and circumstances, it cannot be held that it

amounts to deliberate defiance of this Court's order. Respondents have

given detailed explanation in their affidavit, which, in my opinion, is

convincing and sufficient.

11. It is settled legal position that a selected candidate has no right to

the post and he cannot claim appointment as a matter of right but he

is only entitled to be considered. In the case in hand, in view of the

fact that there was no vacancy and the Nigam has decided not to make

any appointment unless the surplus employees are adjusted against the

vacancies, in my opinion, it could not be held that the respondents

have wilfully flouted the order of this Court. The authorities cited by

the learned counsel for the petitioner are also of no help as in the case

of Jatinder Kumar and others v. State of Punjab, (supra), the Apex

Court has held that a selected candidate has no right to be appointed

which could be enforced by mandamus. Similar view was taken in the

case of State of Bihar v. Secretariat Assistant Successful Examinees

Union, (supra), wherein the Apex Court has quashed that part of the

order of the High Court wherein mandamus was issued to make

appointment.

12. During the course of submission, Mr. Hajela, learned counsel

sought to argue that there was a clear direction of the Division Bench

to consider the petitioner against the existing vacancy for

appointment. I am afraid such interpretation, if accepted, will amount

to restore that part of the judgment of the learned single Judge which

has been quashed by the Division Bench. The learned single Judge

vide order dated 21.5.1992 directed the Nigam to declare the result of

the petitioners within a period of two weeks from the date of filing of

the certified copy of the order and in case, they have qualified, the

letter of appointment may be issued in their favour within a period of

one month from the date of publication of the result. The Division

Bench, on appeal, by the Nigam quashed the second part of the order

directing to appoint the petitioners in view of the settled legal position

that such a direction could not be appropriately issued.

13. In a contempt proceeding, it is to be seen as to whether there is

any wilful disobedience or not and if such wilful disobedience is found

to be on account of compelling circumstances, the contemner may not

be held liable for contempt.

14. In the case of Dushyant Somal v. Sushma Somal, AIR 1981 SC

1026, the Hon'ble Supreme Court observed as under :

"Nor is a person to be punished for contempt of

court for disobeying an order of Court except

when the disobedience is established beyond

reasonable doubt, the standard of proof being

similar, even if not the same, as in a criminal

proceeding. Where the person alleged to be in

29

contempt is able to place before the Court

sufficient material to conclude that it is impossible

to obey the order, the Court will not be justified in

punishing the alleged contemnor."

15. In the case of Niaz Mohammad and others v. State of Haryana and

others, the Apex Court has observed as under:

"9. Section 2(b) of the Contempt of Courts Act, 1971

(hereinafter referred to as 'the Act') defines "civil

contempt" to mean "wilful disobedience to any

judgment decree, direction, order, writ or other

process of a Court...." Where the contempt consists in

failure to comply with or carry out an order of a

Court made in favour of a party, it is a civil contempt.

The person or persons in whose favour such order or

direction has been made can move the Court for

initiating proceeding for contempt against the alleged

contemner with a view to enforce the right flowing

from the order or direction in question. But such a

proceeding is not like an execution proceeding under

Code of Civil Procedure. The party in whose favour

an order has been passed, is entitled to the benefit of

such order. The Court while considering the issue as

to whether the alleged contemner should be punished

for not having complied with and carried out the

direction of the Court, has to take into consideration

all facts and circumstances of a particular case. That

is why the framers of the Act while defining civil

contempt, have said that it must be wilful

disobedience to any judgment, decree, direction,

order, writ or other process of a Court. Before a

contemner is punished for non-compliance of the

direction of a Court, the Court must not only be

satisfied about the disobedience of any judgment,

decree, direction or writ but should also be satisfied

that such disobedience was wilful and intentional.

The civil court while executing a decree against the

judgment-debtor is not concerned and bothered

whether the disobedience to any judgment, or decree,

was wilful. Once a decree has been passed it is the

duty of the Court to execute the decree whatever may

be the consequence thereof. But while examining the

grievance of the person who has invoked the

jurisdiction of the Court to initiate the proceeding for

contempt for disobedience of its order, before any

such contemner is held guilty and punished, the Court

has to record a finding that such disobedience was

wilful and intentional. If from the circumstances of a

particular case, brought to the notice of the Court,

the Court is satisfied that although there has been a

disobedience but such disobedience is the result of

some compelling circumstances under which it was

not possible for the contemner to comply with the

order, the Court may not punish the alleged

contemner."

16. Therefore, before holding guilty for the alleged defiance of the

order, the Court is required to take into consideration all facts and

30

circumstances of a particular case and has to be satisfied that such

disobedience is wilful, deliberate and intentional before punishing the

contemner under the Contempt of Courts Act. If, however, it is found

that there is disobedience but such disobedience is on account of some

compelling circumstances under which it is impossible for the

contemner to comply with the order, the contemner may not be

punished. In the case in hand, as noticed earlier, there was only

direction to consider the petitioner for appointment in accordance with

law keeping in view the vacancy position. In the absence of any va-

cancy, there is no occasion to consider the petitioner for appointment

and, therefore, no part of the order of this Court can be said to have

flouted by the respondent-contemner.

17. Having heard learned counsel for the parties at length and having

regard to all the facts and circumstances of the case, in my opinion,

there is no wilful obedience on the part of the respondents by not

considering their claim for appointment in view of the fact that no

vacancy exists. In such a circumstance, it cannot be held that the

respondents have wilfully disobeyed the order of this Court and as

such liable to be punished for committing contempt of this Court.”

30.Yet the Hon'ble Apex Court in the case of Kapildeo Prasad Sah

and Others vs. State of Bihar reported in (1999) 7 SCC 569 had the

occasioned to consider the contingency wherein the dispute has arisen

with regard to the existence of vacancy, which is coming as a hurdle for

granting benefit and the Hon'ble Supreme Court in paragraph 10 to 12

has observed as under:-

“10. In his famous passage, Lord Diplock in Attorney General vs.

Times Newspapers Ltd. [(1973) 3 All ER 54] said that there is also

"an element of public policy in punishing civil contempt, since

administration of justice would be undermined if the order of

any court of law could be disregarded with impunity".

Jurisdiction to punish for contempt exists to provide ultimate

sanction against the person who refuses to comply with the

order of the court or disregards the order continuously.

Initiation of contempt proceedings is not a substitute for

execution proceedings though at times that purpose may also

be achieved.

11. No person can defy court's order. Wilful would exclude casual,

accidental bonafide or unintentional acts or genuine inability to

comply with the terms of the order. A petitioner who complains breach

of court's order must allege deliberate or contumacious disobedience

of the court's order.

12. Nothing has been shown that the claim of the respondents that

appellants have not been appointed against any vacancy existing on

January 1, 1992 is not true or that the respondents are intentionally

or deliberately advancing this plea to deprive the appellants of their

right to the arrears of the salary for some ulterior motive. That being

so, it was not a case where proceedings for contempt could have been

initiated against the respondents. High Court is right in dismissing the

31

contempt petition. However, since there is a serious dispute whether

any vacancy existed or not as on January 1, 1992 against which

appellants or anyone of them could have been appointed the matter

certainly needs examination but perhaps only by way of an

interlocutory application in the writ petition and not by way of

contempt. Thus, though upholding the order of the High Court, we

send the matter back to the High Court to go into the question if any

vacancy existed as on January 1, 1992 and, if so, pass appropriate

orders.”

31.The Hon'ble Apex Court in Jhareswar Prasad Paul and Another

vs. Tarak Nath Ganguly and Others reported in 2002 CRI. L.J. 2935 in

para 11 has held as under:-

“The purpose of contempt jurisdiction is to uphold the majesty and

dignity of the courts of law. Since the respect and authority

commanded by the courts of law are the greatest guarantee to an

ordinary citizen and the democratic fabric of society will suffer if

respect for the juidiciary is undermined. The Contempt of Courts Act,

1971 has been introduced under the statute for the purpose of securing

the feeling of confidence of the people in general for true and proper

administration of justice in the country. The power to punish for

contempt of courts is a special power vested under the Constitution in

the courts of record and also under the statute. The power is special

and needs to be exercised with care and caution. It should be used

sparingly by the courts on being satisfied regarding the true effect of

contemptuous conduct. It is to be kept in mind that the court exercising

the jurisdiction to punish for contempt does not function as an original

or appellate court for determination of the disputes between the

parties. The contempt jurisdiction should be confined to the question

whether there has been any deliberate disobedience of the order of the

court and if the conduct of the party who is alleged to have committed

such disobedience is contumacious. The court exercising contempt

jurisdiction is not entitled to enter into questions which have not been

dealt with and decided in the judgment or order, violation of which is

alleged by the applicant. The court has to consider the direction issued

in the judgment or order and not to consider the question as to what

the judgment or order should have contained. At the cost of repetition

be it stated here that the court exercising contempt jurisdiction is

primarily concerned with the question of contumacious conduct of the

party, which alleged to have committed deliberate default in complying

with the directions in the judgment or order. If the judgment or order

does not contain any specific direction regarding a matter or if there is

any ambiguity in the directions issued therein then it will be better to

direct the parties to approach the court which disposed of the matter

for clarification of the order instead of the court exercising contempt

jurisdiction taking upon itself the power to decide the original

proceeding in a manner not dealt with by the court passing the

judgment or order. If this limitation is borne in mind then criticisms

which are sometimes leveled against the courts exercising contempt of

court jurisdiction "that it has exceeded its powers in granting

substantive relief and issuing a direction regarding the same without

proper adjudication of the dispute" in its entirety can be avoided. This

will also avoid multiplicity of proceedings because the party which is

prejudicially affected by the judgment or order passed in the contempt

32

proceeding and granting relief and issuing fresh directions is likely to

challenge that order and that may give rise to another round of

litigation arising from a proceeding which is intended to maintain the

majesty and image of courts.”

32.In Director of Education, Uttaranchal and others vs. Ved

Prakash Joshi and Others reported in 2005 CRI. L.J. 3731, it has been

held that while dealing with the application for contempt the Court

cannot traverse beyond the order non compliance whereof is alleged. It is

held-:-

“It cannot traverse beyond the order. It cannot test correctness or

otherwise of the order or give additional directions or delete any

direction. That would be exercising review jurisdiction while

dealing with an application for initiation of contempt proceedings.

The same would be impermissible and indefensible. In that view of

the matter, the order of the High Court is set aside.”

33.Applying the said judgments in the facts of the case the Court finds

that this Court cannot enter into the merits of the matter as the same is

subject to interpretation which can be done on original side as in

contempt jurisdiction the Courts of law has to not only uphold the

majesty and dignity of the Courts of law but also lift the veil so as to find

out as to whether there was willful disobedience of the orders passed on

original side and not to function as an original or appellate court for

determination of the dispute inter se between the parties.

34.Nonetheless, it is always open for the petitioner herein to take

recourse to the provisions contained under Section 19(v) of the

Administrative Tribunals Act, 1985 while filing original application

before the 5

th

Respondent challenging the orders negating the claim of the

petitioner or depriving the petitioner of his legal and genuine right to be

considered for promotion. Even otherwise, from the all four corners of

law this Court finds that motion so pressed in service by means of the

present writ petition is not even otherwise liable to be entertained under

Article 226/227 of the Constitution of India particularly when the order

itself was conditional one subject to existence of vacancy and suitability

of the petitioner as per the Rules and once the issue with regard to the

fact that there remains no vacancy against which the claim of the

petitioner would be considered has been raised by the Railways then it

33

was rightly not interfered by the 5

th

Respondent in contempt proceedings

as the Contempt Court cannot go into the merit of the matter as the

remedy lies elsewhere and not in contempt jurisdiction.

35.Though this Court has discussed in detail and proceeded to observe

that the present case does not warrant interference under Article 226/227

of the Constitution of India particularly when the contempt proceedings

have been dropped and notices have been discharged against the alleged

contemnors and this Court finds that there is no occasion even otherwise

to take different view from the view so taken by the 5

th

Respondent,

however, the Court finds that a relief has also been sought to challenge

42

nd

Amendment for declaring The Constitution (Forty-Second

Amendment) Act, 1976 being Section 46 pertaining to Tribunals Under

Part XIVA whereby Article 323-A was introduced in so far as it pertains

to Section 5(2) and 5(4) of the Administrative Tribunals Act, 1985.

Section 5(2) and 5(4) of the Administrative Tribunals Act, 1985 reads as

under:-

5. Composition of Tribunals and Benches thereof. (1) Each Tribunal

shall consist of 1[a Chairman and such number of Judicial and

Administrative Members] as the appropriate Government may deem

fit and, subject to the other provisions of this Act, the jurisdiction,

powers and authority of the Tribunal may be exercised by Benches

thereof.

[(2) Subject to the other provisions of this Act, a Bench shall consist of

one Judicial Member and one Administrative Member.]

(4) Notwithstanding anything contained in sub-Section(1), the

Chairman--[(a) may, in addition to discharging the functions of the

Judicial Member or the Administrative Member of the Bench to which

he is appointed, discharge the functions of the Judicial Member or, as

the case may be, the Administrative Member, of any other Bench;]

(b) may transfer [a Member] from one Bench to another Bench;

(c) may authorise [the Judicial Member] or the Administrative

Member appointed to one Bench Bench to discharge also the functions

of [the Judicial Member or the Administrative Member, as the case

may be] of another Bench; and]

(d) may, for the purpose of securing that any case or cases which,

having regard to the nature of the questions involved, requires or

require, in his opinion or under the rules made by the Central

Government in this behalf, to be decided by a Bench composed of

more than [two members], issue such general or special orders, as he

34

may deem fit.

[Provided that every Bench constituted in pursuance of this clause

shall include at least one Judicial Member and one Administrative

Member.]”

36.Essentially, while seeking above mentioned relief the petitioner

wants a direction in the nature of Mandamus commanding the 5

th

Respondent to decide the case by constituting a Bench of two members.

This Court finds that the issue pertaining to establishment and the

constitution of Central Administrative Tribunal had already been decided

in the case of L. Chandra Kumar (supra) and further in paragraph nos.

97, 98 and 99 (as extracted above) the Hon'ble Apex Court had the

occasion to deal with Section 5(2) and 5(4) of the Administrative

Tribunals Act, 1985. More so, the petitioner herein as though raised the

issue of constitutional validity of the 42

nd

Amendment Act, 1976 in so far

as it pertains to Section 46 which deals with the matter pertaining to

Tribunal, however, neither the Union of India nor the respective

Secretary to whom the Ministry is to be represented have been made

party in the present proceedings. This Court finds that the Union of India

through General Manager North Eastern Railway has only been arrayed

as a party. Thus in the absence of any impleadment of a proper and

necessary party this Court cannot delve into the issue regarding

constitutional validity so sought to be raised at the behest of the

petitioner. Nonetheless, the Hon'ble Supreme Court in the case of V.K.

Majotra vs. Union of India and Others reported in AIR 2003 SC 3909

in paragraph 8 and 9 have clearly observed as under:-

“8. We have perused the pleadings of the writ petition and the

counter affidavits filed by the respondents before the High

Court. Counsel for the parties are right in submitting that the

point on which the writ petition has been disposed of was not

raised by the parties in their pleadings. The parties were not at

issue on the point decided by the High Court. Counsel for the

parties are also right in contending that the point raised in the

writ petition was neither adverted to nor adjudicated upon by

the High Court. It is also correct that vires of Section 6(2)(b)

(bb) and (c) of the Act were not challenged in the writ petition.

35

The effect of the direction issued by the High Court that

henceforth the appointment to the post of Vice-Chairman be

made only from amongst the sitting or retired High Court Judge

or an advocate qualified to be appointed as a Judge of the High

Court would be that Sections 6(2)(b)(bb) and (c) of the Act

providing for recruitment to the post of Vice-Chairman from

amongst the administrative services have been put at

naught/obliterated from the statute book without striking them

down as no appointment from amongst the categories

mentioned in Clauses (b) (bb) and (c) could now be made. So

long as Section 6(2)(b)(bb) and (c) remains on the statute book

such a direction could not be issued by the High Court. With

respect to the learned Judges of the High Court we would say

that the learned Judges have over stepped their jurisdiction in

giving a direction beyond the pleadings or the points raised by

the parties during the course of the arguments. The writ courts

would be well advised to decide the petitions on the points

raised in the petition and if in a rare case keeping in view the

facts and circumstances of the case any additional points are to

be raised then the concerned and affected parties should fee put

to the notice oft the additional points to satisfy the principles of

natural justice. Parties cannot be taken by surprise. We leave

the discussion here.

9. We are also in agreement with the submissions made by the

counsel for the appellants that the High Court exceeded its

jurisdiction in issuing further directions to the Secretary, Law

Department, Union of India, the secretary Personnel and

Appointment Department, Union of India, the Cabinet Secretary

of Union of India and to the Chief Secretary of the U.P.

Government as also to the Chairman of the CAT and other

appropriate authorities that henceforth the appointment to the

post of presiding officer of various other Tribunals such as

CEGAT, Board of Revenue, Income Tax Appellate Tribunal etc.,

should be from amongst the judicial members alone. Such a

finding could not be recorded without appropriate pleadings

and notifying the concerned and affected parties.”

37.Thus taking into aforesaid factual and legal aspect this Court is not

delving into the issue regarding challenge to the constitutional provisions

so laid in the present petition leaving it open to the petitioner to challenge

the same in appropriate proceedings as and when it is occasioned.

38.Accordingly, this Court is of the firm opinion that the present writ

petition so preferred by the petitioner challenging the order whereby

contempt proceedings has been dropped and notices have been

discharged is not liable to be interfered in present proceeding and thus it

is liable to be dismissed.

36

39.Resultantly, it is dismissed.

40.Interim order if any stands discharged.

41. Cost made easy.

Order Date :- 25.5.2022

Nitendra