Page 1

REPORTABLE        

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.      3297       OF     2012   (Arising out of SLP (C) No. 21096 of 2010

R. Mohajan & Ors.                  .... Appellant (s)

Versus

Shefali Sengupta & Ors.                          .... Respondent(s)

J     U     D     G     M     E     N     T      

P.     Sathasivam,     J.   

1) Leave granted.

2) This appeal is filed against the order dated 11.06.2010  

passed by the Central Administrative Tribunal, Calcutta  

Bench in CPC No. 113 of 2005 (O.A. No. 203 of 1997)  

whereby the Tribunal passed an order directing the  

appellants herein to be present in court on the next date of  

1

Page 2

hearing for receiving the charges of contempt and adjourned  

the matter to 30.07.2010.

3) Brief facts:

(a) The respondents herein were initially employed on the  

post of L.D.C. in DGS&D, Calcutta on various dates.  

Respondent Nos. 1 & 2 herein were further promoted as UDC  

in DGS&D.  Their services were being utilized in purchase  

department for procurement against the ad hoc indents of  

the indenting Ministries/Departments.  A decision was taken  

by the Central Government that the work relating to  

procurement could be transferred to the concerned  

department and in this view, the respondents were  

transferred vide order dated 08.04.1992 to the Office of  

General Manager, Eastern Railway, S.E. Railway, C.L.W. and  

Metro Railway.  They were placed under the disposal of the  

Controller of Stores, S.E. Railway in their existing capacity,  

pay and grade w.e.f. 24.04.1992.     

(b) On 18.10.1994, the Railway Board issued an order  

regarding the absorbed persons, who came to be transferred  

from DGS&D to Zonal Railways and Production Units wherein  

2

Page 3

it has been mentioned that these employees may be  

absorbed in the Railways to which they have been  

transferred and assigned seniority on the basis of date of  

their regular promotion/appointment in the relevant grade.  

In terms of the order passed by the Railway Board, their  

absorption and seniority list was issued vide Office Order  

dated 10.02.1995.  Based on the seniority list, they were  

given promotion to the next post of Head Clerk and Senior  

Clerk vide Office Orders dated 23.06.1995 and 31.10.1995  

respectively.  Subsequently their seniority was published in  

the grade of Head Clerk and Senior Clerk vide orders dated  

28.07.2000, 12.07.2001, 29.10.2003, and 27.01.1994  

placing at their appropriate place as per their original  

seniority assigned vide Office Order dated 10.02.1995.   

(c) Questioning the said order of seniority, the respondents  

herein made several verbal representations to the  

authorities for promotion retrospectively, but no steps have  

been taken by them.  Challenging the seniority list, the  

respondents filed O.A. No. 203 of 1997 before the Central  

Administrative Tribunal, Calcutta Bench, Kolkata.  By order  

3

Page 4

dated 09.05.2005, the Tribunal allowed the application filed  

by the respondents herein with a direction to the  

Department (appellants herein) to grant them their due  

seniority from the date of their appointment on their  

respective posts in DGS&D prior to their transfers to the  

Railways and they shall also be entitled to the benefits of  

next below rule with all consequential benefits except any  

arrear that may be payable shall be restricted to from the  

date of filing of the application and gave three months time  

to comply with the order.   By office order dated 20.06.2005,  

the Chief Personnel Officer informed the respondents herein  

that their names do not come under the zone of  

consideration as per the seniority list published on  

27.01.2004 and, therefore, they are not considered for the  

post of O.S. Grade II on restructuring basis.   

(d) Not satisfied with the order passed by the Chief  

Personnel Officer, the respondents filed CPC No. 113 of 2005  

(OA No.203 of 1997) before the Tribunal.  The Tribunal, by  

order dated 07.04.2008 observed that there is difference of  

three years in the matter of promotion and granted two  

4

Page 5

months’  time to the Department to  comply with the  

directions and directed to list the matter on 17.06.2008 for  

orders.   As the appellants herein were not fully  

implementing the orders, the Tribunal, vide order dated  

23.03.2010, directed for issuance of Rule 8 notice to the  

contemnors/appellants herein  returnable after two months  

and directed to list the matter for orders on 03.05.2010.  On  

30.03.2010, counsel for the contemnors/appellants herein  

appeared before the Tribunal and placed on record various  

documents to show that the orders were, in fact, complied  

with.  Not satisfied with the report filed by the Department,  

the Tribunal passed the impugned order dated 11.06.2010  

directing the contemnors/appellants herein to present before  

it to receive charges of contempt and adjourned the matter  

for 30.07.2010.  (e) Against the said order, the  

appellants/Contemnors preferred this appeal by way of  

special leave before this Court.

4) Heard Mr. Mohan Jain, learned Additional Solicitor  

General for the appellants and Mr. R.K. Gupta, learned  

counsel for the respondents.

5

Page 6

5) At the outset, Mr. R.K. Gupta, learned counsel for the  

respondents raised a preliminary objection as to the  

maintainability of the present appeal by the appellants  

before this Court without exercising the remedy before the  

High Court for which he relied on the decision of the  

Constitution Bench of this Court in L. Chandra Kumar vs.  

Union of India & Ors., (1997) 3 SCC 261.  On the other  

hand, Mr. Mohan Jain, learned Additional Solicitor General, by  

drawing our attention to Section 19 of the Contempt of  

Courts Act, 1971, submitted that the present appeal by way  

of special leave is maintainable and is the appropriate  

remedy for the appellants.  In this regard, he heavily relied  

on a three-Judge Bench decision of this Court in T.  

Sudhakar Prasad vs. Government of A.P. & Ors.,  

(2001) 1 SCC 516 which interpreted the decision of the  

Constitution Bench of this Court rendered in L. Chandra  

Kumar (supra).

6) Before going into the merits of the impugned order of  

the Tribunal, let us resolve the maintainability of the present  

appeal.   

6

Page 7

7) After the order dated 09.05.2005 passed by the  

Tribunal in O.A. No. 203 of 1997, the respondents, who are  

the beneficiaries of that order, filed C.P.C. No. 113 of 2005  

before the Central Administrative Tribunal, Calcutta Bench  

contending that the order has not been implemented in full  

by the appellants herein.  After considering its earlier order  

dated 09.05.2005 and the relief granted to the personnel,  

the Tribunal, by the impugned order, directed the  

contemnors (appellants herein) to be present in Court on the  

next date of hearing and to receive the charges of contempt.  

It is clear from the above direction that the said order came  

to be passed in a contempt proceeding.  In such  

circumstances, the aggrieved parties are at liberty to  

approach this Court without exercising the remedy before  

the High Court, as observed in L. Chandra Kumar (supra).

8) In L. Chandra Kumar (supra), the Constitution Bench  

with regard to approaching the High Court against the order  

of the CAT has held as under:

“91. It has also been contended before us that even in  dealing with cases which are properly before the Tribunals,  the manner in which justice is dispensed by them leaves  

7

Page 8

much to be desired. Moreover, the remedy provided in the  parent statutes, by way of an appeal by special leave  under Article 136 of the Constitution, is too costly and  inaccessible for it to be real and effective. Furthermore, the  result of providing such a remedy is that the docket of the  Supreme Court is crowded with decisions of Tribunals that  are challenged on relatively trivial grounds and it is forced  to perform the role of a first appellate court. We have  already emphasised the necessity for ensuring that the  High Courts are able to exercise judicial superintendence  over the decisions of the Tribunals under Article 227 of the  Constitution. In R.K. Jain case, after taking note of these  facts, it was suggested that the possibility of an appeal  from the Tribunal on questions of law to a Division Bench of  a High Court within whose territorial jurisdiction the  Tribunal falls, be pursued. It appears that no follow-up  action has been taken pursuant to the suggestion. Such a  measure would have improved matters considerably.  Having regard to both the aforestated contentions, we hold  that all decisions of Tribunals, whether created pursuant to  Article 323-A or Article 323-B of the Constitution, will be  subject to the High Court's writ jurisdiction under Articles  226/227 of the Constitution, before a Division Bench of the  High Court within whose territorial jurisdiction the  particular Tribunal falls.

92. We may add here that under the existing system,  direct appeals have been provided from the decisions of all  Tribunals to the Supreme Court under Article 136 of the  Constitution. In view of our above-mentioned observations,  this situation will also stand modified. In the view that we  have taken, no appeal from the decision of a Tribunal will  directly lie before the Supreme Court under Article 136 of  the Constitution; but instead, the aggrieved party will be  entitled to move the High Court under Articles 226/227 of  the Constitution and from the decision of the Division  Bench of the High Court the aggrieved party could move  this Court under Article 136 of the Constitution.”

It is clear from the above dictum that no appeal from the  

decision of the Tribunal will directly lie before this Court  

under Article 136 of the Constitution of India, but instead,  

8

Page 9

the aggrieved party has to move the High Court under  

Articles 226/227 of the Constitution and thereafter from the  

decision of the Division Bench of the High Court, the  

aggrieved parties are free to approach this Court.  In view of  

the above direction, though the learned counsel for the  

respondents is right in contending the same, however, the  

Constitution Bench had no occasion to consider the  

order/orders passed by the CAT in contempt proceedings.  

This aspect has been considered by the subsequent three-

Judge Bench decision of this Court in T. Sudhakar Prasad  

(supra).  The question posed before the Court was that  

whether the Administrative Tribunals set up under the  

provisions of the Administrative Tribunals Act, 1985, do they  

or do they not have power to punish for their contempt?  

After going into the decision in L. Chandra Kumar (supra)  

in detail, this Court has concluded as under:

“17. It is thus clear that the Constitution Bench has not  declared the provisions of Article 323-A(2)(b) or Article  323-B(3)(d) or Section 17 of the Act ultra vires the  Constitution. The High Court has, in its judgment under  appeal, noted with emphasis the Tribunal having been  compared to like “courts of first instance”  and then  proceeded to hold that the status of Administrative  Tribunals having been held to be equivalent to courts or  Tribunals subordinate to the High Court the jurisdiction to  

9

Page 10

hear their own contempt was lost by the Administrative  Tribunals and the only course available to them was either  to make a reference to the High Court or to file a complaint  under Sections 193, 219 and 228 IPC as provided by  Section 30 of the Act. The High Court has proceeded on the  reasoning that the Tribunal having been held to be  subordinate to the High Court for the purpose of Articles  226/227 of the Constitution and its decisions having been  subjected to judicial review jurisdiction of the High Court  under Articles 226/227 of the Constitution, the right to file  an appeal to the Supreme Court against an order passed  by the Tribunal punishing for contempt under Section 17 of  the Act was defeated and on these twin grounds Section 17  of the Act became unworkable and unconstitutional. We do  not find any basis for such conclusion or inference being  drawn from the judgments of this Court in the cases of  Supreme Court Bar Assn. or L. Chandra Kumar or any other  decision of this Court. The Constitution Bench has in so  many words said that the jurisdiction conferred on the High  Courts under Articles 226/227 could not be taken away by  conferring the same on any court or Tribunal and  jurisdiction hitherto exercised by the High Court now  legislatively conferred on Tribunals to the exclusion of the  High Court on specified matters, did not amount to  assigning Tribunals a status of substitute for the High Court  but such jurisdiction was capable of being conferred  additionally or supplementally on any court or Tribunal  which is not a concept strange to the scheme of the  Constitution more so in view of Articles 323-A and 323-B.  Clause (2)(b) of Article 323-A specifically empowers  Parliament to enact a law specifying the jurisdiction and  powers, including the power to punish for contempt, being  conferred on the Administrative Tribunals constituted  under Article 323-A. Section 17 of the Act derives its  legislative sanctity 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  

1

Page 11

of the Act. The jurisdiction is the same as vesting in the  High Courts under Article 215 of the Constitution read with  the provisions of the Contempt of Courts Act, 1971. The  need for enacting Section 17 arose, firstly, to avoid doubts,  and secondly, because the Tribunals are not “courts of  record”. While holding the proceedings under Section 17 of  the Act the Tribunal remains a Tribunal and so would be  amenable to the jurisdiction of the High Court under  Articles 226/227 of the Constitution subject to the well- established rules of self-restraint governing the discretion  of the High Court to interfere with the pending proceedings  and upset the interim or interlocutory orders of the  Tribunals. However any order or decision of the Tribunal  punishing for contempt shall be appealable only to the  Supreme Court within 60 days from the date of the order  appealed against in view of the specific provision contained  in Section 19 of the Contempt of Courts Act, 1971 read  with Section 17 of the Administrative Tribunals Act, 1985.  Section 17 of the Administrative Tribunals Act is a piece of  legislation by reference. The provisions of the Contempt of  Courts Act are not as if lifted and incorporated in the text  of the Administrative Tribunals Act (as is in the case of  legislation by incorporation); they remain there where they  are, yet while reading the provisions of the Contempt of  Courts Act in the context of Tribunals, the same will be so  read as to read the word “Tribunal”  in place of the word  “High Court”  wherever it occurs, subject to the  modifications set out in Section 17 of the Administrative  Tribunals Act. Section 19 of the Contempt of Courts Act,  1971 provides for appeals. In its text also by virtue of  Section 17 of the Administrative Tribunals Act, 1985 the  word “High Court”  shall be read as “Tribunal”. Here, by  way of abundant caution, we make it clear that the concept  of intra-Tribunal appeals i.e. appeal from an order or  decision of a Member of a Tribunal sitting singly to a Bench  of not less than two Members of the Tribunal is alien to the  Administrative Tribunals Act, 1985. The question of any  order made under the provisions of the Contempt of Courts  Act, 1971 by a Member of the Tribunal sitting singly, if the  rules of business framed by the Tribunal or the appropriate  Government permit such hearing, being subjected to an  appeal before a Bench of two or more Members of the  Tribunal therefore does not arise. Any order or decision of  the Tribunal punishing for contempt is appealable under  Section 19 of the Act to the Supreme Court only. The  Supreme     Court     in     the     case     of     L.     Chandra     Kumar     has    

1

Page 12

nowhere     said     that     orders     of     the     Tribunal     holding     the    contemner     guilty     and     punishing     for     contempt     shall    also     be     subject     to     judicial     scrutiny     of     the     High     Court    under     Articles     226/227     of     the     Constitution     in     spite     of    remedy     of     statutory     appeal     provided     by     Section     19    of     the     Contempt     of     Courts     Act     being     available.   The  distinction between orders passed by the Administrative  Tribunal on matters covered by Section 14(1) of the  Administrative Tribunals Act and orders punishing for  contempt under Section 19 of the Contempt of Courts Act  read with Section 17 of the Administrative Tribunals Act, is  this: as against the former there is no remedy of appeal  statutorily provided, but as against the latter statutory  remedy of appeal is provided by Section 19 of the  Contempt of Courts Act itself.”        (Emphasis supplied)

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.

10)   Now let us consider the merits of the impugned order.  

Since we are concerned about the question as to whether  

the directions of the CAT have been implemented or not,  

there is no need to refer all the factual details once again.  

The operative part of the directions of the order dated  

09.05.2005 of the CAT reads as under:

“6.  In this view of what has been said and discussed  above, this original application is allowed with a direction  to the respondents to grant them their due seniority from  the date of their appointment on their respective posts in  DGS&D prior to their transfers to the present organization  and they shall also be entitled to the benefits of next below  rule with all consequential benefits except any arrear that  

1

Page 13

may be payable shall be restricted to from the date of filing  of this original application.  However, in case the applicants  have already been granted the due benefits, the details of  the same shall be furnished to the applicants.  This order  shall be complied within a period of three months from the  date of the receipt of a copy of this order.  However, there  shall be no order as to costs.”

Since according to the respondents, the said directions have  

not been complied with, they filed contempt petition being  

C.P.C. No. 113 of 2005 before the CAT.  It is useful to refer  

that pursuant to the representations made by the  

respondents herein, in terms of the directions of the CAT  

dated 09.05.2005, S.E. Railways, who is the relevant  

authority, by communication dated 20.06.2005 intimated the  

following information to all the respondents herein.  The  

same are as follows:

                            “SOUTH EASTERN RAILWAY                                     CPO’S OFFICE/GRC

                                           Date: 20.6.2005 No. P/Stores/CAT/CAL/OA 203-97

To  1. Smt. Shefali Sengupta, Head Clerk/COS’s Office/GRC 2. Sri Probir Kumar Nath, Head Clerk/COS’s Office/GRC 3. Sri Apurba Kumar Mukherjee. Sr. Clerk/COS’s Office/GRC (THROUGH Sr. MATERIAL MANAGER (M&P)/GRC Ref : 1) COS/GRC’s letter No. S/58/A/14/Pt.III/Gr.C/78 dated  

27.5.2005 2) CAT/CAL’s order dated 9.5.05 in OA No. 203/1997

In response to representation dated 8.6.2005  submitted by the above Applicants and in compliance of  

1

Page 14

Hon’ble CAT/KOL’s order dated 9.5.2005 in OA No.  203/1997 the following information/compliance report is  furnished to the representationist for their appraisal.

That in terms of this office order No. OP/Stores/39A  dated 10.2.95 their absorption and seniority case had been  settled according to Rly. Board’s guidelines communicated  to this Rly. Vide their letter No. E(NG) I/92/TR/7 dated  18.10.94 assigning their seniority from the date of regular  promotion/appointment to the relevant grade they were  holding at the time of transfer to this Railway as follows:

S.No. Name Designatio n & Scale

Date of  appointmen t

Date of  promotion to  the next  grade

1 Smt. Shefali  Sengupta

Sr. Clerk  (1200- 2040)

30.5.1975 27.2.82

2 Sr. Probir Kr. Nath -do- 6.2.1976 1.1.1983 3 Sri Apurba Kr.  

Mukherjee Jr. Clerk (950- 1500)

17.11.1982

4 Kum. Khama  Banerjee

Peon (750-940) 31.3.1983

Based on the assignment of seniority, they were given promotion  to the next post of Hd. Clerk and Sr. Clerk vide OO No.  P/Stores/197 dated 23.6.95 and P/Stores/315 dt. 31.10.95  respectively.

    Subsequently their seniority was published in the grade of  Head Clerk and Senior Clerk vide order No. P/Stores/Revised  Seniority/2000 dated 28.07.2000, P/Stores/Seniority/COS dated  12.07.2001 and P/Stores/Seniority list/COS 29.10.2003,  P/Stores/Seniority List/COS dated 27.01.1994 placing at their  appropriate place as per their original seniority assigned vide  Office Order dated 10.02.1995.             Thus it is clear from the above position that their date of  promotion in their earlier cadre of DGS&D has been protected  and they have been assigned seniority in Railway considering  length of service in the grade of DGS&D.   

1

Page 15

    In the seniority list dated 27.1.2004, Smt. Sengupta and Sri  Nath are at S.Nos. 20 & 21 in the present selection staff in  general seniority upto 9 has been called 5 persons senior to  them in the general seniority are also not called because in the  present selection of  SO Gr.II, COS’s office in scale Rs.5500- 9000/- (RSRP) their name do not come under the zone of  consideration as per the seniority list published in the year  mentioned above.  Hence they are not considered for the post of  OS Gr. II on restructuring basis.

   The representationists may be informed accordingly serving  one copy of this letter to each.

                                                                             Sd/-                                                                      (B.N. SOREN)                                                      Sr. Personnel Officer (W) Copy to: COS/GRC for information and necessary action.

                                                                   Sd/-                                               For Chief Personnel Officer”

11) Though the CAT has expressed that the said  

compliance is not in tune with its order dated 09.05.2005, as  

rightly pointed out by Mr. Mohan Jain, learned ASG, that as  

per the order, promotion was granted to the respondents  

from the earliest date which is admissible as per rules and as  

provided by the Railway Board.  As pointed out by the  

appellants, the Tribunal has ignored the fact that the  

consequential benefits at par with juniors have been  

complied with properly.  This was explained as under:

“There was difference of 3 years in the matter of  promotion for Respondent Nos. 1 & 2.  In terms of Railway  Boards Lr. No. E(NG) 1/9/2Tr/7 dated 18.10.1994 Smt.  Shefali Sengupta and Prabir Kumar Nath were granted  

1

Page 16

seniority of the post of Sr. Clerk w.e.f. 1.1.83 and Sri  Apurba Kumar Mukherjee was granted seniority of the post  of Jr. Clerk w.e.f. 27.11.82 i.e. the date of  promotion/appointment at DGS&D.

In terms of Railway Board’s Lr. No. E(NG) I-96/SRG/22  dated 30.10.96 the seniority assigned to DGS&D  transferors on absorption in terms of Board’s letter dated  18.10.1994 would be operative in respect of promotions  made/to be made after the date of their absorption and  that the same would not affect the promotions already  ordered on regular basis prior to the date of such  absorption.

Since Smt. Shefali Sengupta and Prabir Kumar Nath joined  as Sr. Clerk on 24.4.92 are not entitled for a promotion  prior to 24.4.92 and accordingly they were given  promotional benefits at par with their Junior Sri Subrata  Saha who was Sr. Clerk on the date of their joining on  24.4.92.  Accordingly, they were promoted to the post of  Head Clerk at par with their Junior Sri Saha w.e.f. 30.9.92.  Since Sri S.K. Talukdar had already been promoted as OS-II  prior to their joining the consequential benefit of promotion  would not be extended in terms of Board’s Lr. Dated  30.10.96.  Similarly Maniral Islam whose date of  appointment to Sr. Clerk on 1.2.88 S.E. Rly was 3.5.84  promoted to Sr. Clerk on 1.2.88 prior to joining of Apurba  Kr. Mukherjee on 24.4.92.  Hence Sri Mukherjee will not get  the benefit at par with Maniral Islam as per Board’s letter  dated 30.10.96, thus the order has been fully complied  with and there is no difference in promotion for respondent  Nos. 1 & 2.”    

12) In addition to the same, the appellants have also  

pointed out that the Tribunal wrongly misunderstood that  

the claim of respondent Nos. 1 & 2 for further promotion  

with Sri Talukdar, who was promoted as Sr. Clerk on  

14.02.83 which is unsustainable as he had been promoted to  

the higher grade of Head Clerk prior to their joining the  

1

Page 17

department and those particulars are available in the office  

records.  It is also pointed out that the seniority of the  

respondents has been protected and granting promotion to a  

grade to which they had not yet obtained in their parent  

department would not only deprive promotional benefit to  

those who have been serving in the department but would  

involve the promotion policy being revised.  While  

considering the seniority or promotion, the Court cannot go  

into and examine the same contrary to the Rules/Policy  

applicable to the persons concerned framed by the  

Government.

13) In the light of the above discussion and of the factual  

information furnished, we are unable to sustain the  

impugned direction of the Tribunal in the order dated  

11.06.2010, consequently the same is set aside.  Inasmuch  

as the appellants have complied with the earlier order of the  

Tribunal dated 09.05.2005, the contempt petition is  

dismissed.  The appeal is allowed.  No order as to costs.

1

Page 18

...…………….…………………………J.            (P. SATHASIVAM)                                  

.…....…………………………………J.    (J. CHELAMESWAR)  

NEW DELHI; MARCH 30, 2012.  

1