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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 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  

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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 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.   

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(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 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 months’ time to the Department to  comply  

with the directions and directed to list the matter on 17.06.2008  

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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) 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  

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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.  

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:

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“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 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, the aggrieved party  

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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 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  

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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 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  

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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     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)

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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 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:

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                            “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  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 Designati on &  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.  

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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.        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  

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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  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  

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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 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.

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

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

NEW DELHI; MARCH 30, 2012.  

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