Ccp(S) No.144/202 vs Ajeet Kumar Sahoo And Others
2021 Latest Caselaw 1202 j&K/2

                                   h475




     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT SRINAGAR
                                                  CCP(S) No.144/2020
                                                  And
                                                  CCP (S) No.64/2021

                                          Reserved on : 27.09.2021
                                          Pronounced on : 29.09.2021

                        1. CCP(S) No.144/2020
Abdul Qayoom Guroo                                       ...Petitioner(s)


                        Through:-Mr. Jahangir Iqbal Ganai, Sr. Advocate
                              with Ms. Humaira Shafi, Advocate
      V/s

Ajeet Kumar Sahoo and others                           ...Respondent(s)
                        Through:- Mr. Irfan Andleeb, Dy. AG

                        2. CCP(S) No.64/2021
Abdul Majid Bhat                                         ...Petitioner(s)


                        Through:-Mr. Salih Pirzada, Advocate
      V/s

Hirdesh Kumar and another                              ...Respondent(s)
                        Through:- Mr. Aman Ali, Dy. AG

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                               JUDGMENT

1. A short but interesting question arises for adjudication in these

contempt petitions:-

"Whether Central Administrative Tribunal constituted under

Section 4 of the Administrative Tribunals Act, 1985 ["the

Act"] shall have power and authority under Section 17 of the

Act to punish for contempt in relations to an interim order

passed by the High Court in a writ petition, which was

subsequently transferred to it under Section 29 of the Act?

2. In these petitions, the petitioners seek initiation of contempt

proceedings against the respondents for willful disobedience and non-

compliance of the interim orders passed in service writ petitions, which, by

virtue of the provisions of Section 29 of the Act, stand transferred to the

Central Administrative Tribunal, Jammu ["the Tribunal"].

3. On behalf of the petitioners, it is contended that the jurisdiction and

power of the Tribunal to punish for contempt under Section 17 of the Act is

only in respect of contempt of itself and, therefore, the Tribunal has no

power or authority to punish the respondents for contempt committed by

them in relation to an interim order passed by the High Court.

4. Mr. Jahangir Iqbal Ganai, learned Senior Counsel and Mr. Salih

Pirzada, Advocate appearing for the petitioners drew attention of this Court

to Section 17 of the Act and the Contempt of Courts (C.A.T.) Rules, 1992

["the Rules of 1992"] to make good their point.

5. Having heard learned counsel for the petitioners and Mr. Irfan

Andleeb, Dy. AG for the respondents, it is necessary to set out and

appreciate relevant provisions of the Act.

6 The Administrative Tribunals Act, 1985 owes its origin to Article

323-A of the Constitution, which enables the Parliament to provide, by law,

for adjudication or trial by Administrative Tribunals of disputes and

complaints with respect to recruitment and conditions of service of persons

appointed to public service and posts in connection with the affairs of the

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 owned or controlled by the Government.

7. Under Section 4 of the Act, the Central Government is empowered to

establish, by notification, an Administrative Tribunal to exercise

jurisdiction, power and authority conferred on the Central Administrative

Tribunal by or under this Act. Section 4(1) of the Act, which is relevant for

our purpose, is reproduced hereunder:-

"4. Establishment of Administrative Tribunals.---(1) The Central Government shall, by notification, establish an Administrative Tribunal, to be known as the Central Administrative Tribunal, to exercise the jurisdiction, powers and authority conferred on the Central Administrative Tribunal by or under this Act.

........................"

8. Sections 5 to 13 deal with composition of Tribunals and Benches

thereof, qualifications for appointment as Chairman, Vice-Chairman and

other members, service conditions of the Chairman and other members of

the Tribunal etc. etc. Section 14 of the Act deals with jurisdiction, powers

and authority of the Tribunal and provides that the Central Administrative

Tribunal shall exercise, on and from the appointed day, all jurisdiction,

powers and authority exercisable immediately before that day by all courts

(except the Supreme Court) in relation to recruitment, and matters

concerning recruitment, to any All India Service or to any civil service of

the Union or a civil post under the Union or to a post connected with

defence or in the defence services, being, in either case, a post filled by a

civilian as also all service matters concerning such members or employees.

9. Section 29 of the Act deals with transfer of pending cases and is of

great importance insofar as the issue that has arisen in these petitions for

adjudication is concerned and the same also deserves to be reproduced

hereunder:-

"29. Transfer of pending cases. - (1) Every suit or other proceeding pending before any court or other authority immediately before the date of establishment of a Tribunal under this Act, being a suit or proceeding the cause of action whereon it is based is such that, it would have been, if it had arisen after such establishment, within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal:

Provided that nothing in this sub-section shall apply to any appeal pending as aforesaid before a High Court.

(2) Every suit or other proceeding pending before a court or other authority immediately before the date

with effect from which jurisdiction is conferred on a Tribunal in relation to any local or other authority or corporation or society, being a suit or proceeding, the cause of action whereon it is based is such that it would have been, if it had arisen after the said date, within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal:

Provided that nothing in this sub-section shall apply to any appeal pending as aforesaid before a High Court.

EXPLANATION. -For the purposes of this sub-

section "date with effect from which jurisdiction is conferred on a Tribunal", in relation to any local or other authority or corporation or society, means the date with effect from which the provisions of sub- section (3) of Section 14 or, as the case may be, sub- section (3) of Section 15 are applied to such local or other authority or corporation or society.

(3) Where immediately before the date of establishment of a Joint Administrative Tribunal any one or more of the States for which it is established, has or have a State Tribunal or State Tribunals, all cases pending before such State Tribunal or State Tribunals immediately before the said date together with the records thereof shall stand transferred on that date to such Joint Administrative Tribunal.

EXPLANATION. -For the purposes of this sub-

section, "State Tribunal" means a Tribunal established under sub-section (2) of Section 4.

(4) Where any suit, appeal or other proceeding stands transferred from any court or other authority to a Tribunal under sub-section (1) or sub-section (2), -

(a) The court or other authority shall, as soon as may be after such transfer, forward the records of such suit, appeal or other proceeding to the Tribunal; and

(b) The Tribunal may, on receipt of such records, proceed to deal with such suit, appeal or other proceeding, so far as may be, in the same manner as in the case of an application under Section 19 from the stage which was reached before such transfer or from any earlier stage or de novo as the Tribunal may deem fit.

(5) Where any case stands transferred to a Joint Administrative Tribunal under sub-section (3), the Joint Administrative Tribunal may proceed to deal with such case from the stage which was reached before it stood so transferred.

(6)   Every       case     pending     before     a     Tribunal
immediately       before    the   commencement           of    the

Administrative Tribunals (Amendment) Act, 1987, being a case, the cause of action whereon it is based is

such that it would have been, if it had arisen after such commencement, within the jurisdiction of any court, shall together with the records, thereof, stand transferred on such commencement to such court.

(7) Where any case stands transferred to a court under sub-section (6), that court may proceed to deal with such case from the stage which was reached before it stood so transferred."

10. From a plain reading of Section 29 of the Act, it clearly transpires

that every suit or other proceeding, which would include service writ

petitions, pending before this Court immediately before the date of

establishment of the Tribunal under the Act, being a suit or proceeding, the

cause of action whereon, it is based is such that it would have been, if it

had arisen after such establishment, within the jurisdiction of such

Tribunal, shall stand transferred on that date to such Tribunal. The only

exception in this regard is that appeal or appeals pending before the High

Court shall not be transferred. Sub-Section 4 of Section 29 of the Act, as

reproduced above, makes it abundantly clear that record of any suit or other

proceeding including service writ petitions pending before this Court,

which stand transferred to the Tribunal under Sub-Section (1) or Sub-

Section (2) of Section 29 of the Act, shall be immediately and forthwith

forwarded to the Tribunal. The Tribunal, on receipt of such records, shall

proceed to deal with the matter in the same manner as in the case of

Application under Section 19 from the stage which was reached before

such transfer or from any earlier stage or even de novo, as the Tribunal may

deem fit.

11. Once the scheme of the Act, particularly, the provisions of Section

29 of the Act are understood in proper perspective, it will leave no manner

of doubt that whenever a pending matter stands transferred to the Tribunal

under Section 29 of the Act and the Tribunal proceeds to deal with it from

the stage which was reached before such transfer, all orders passed by this

Court in such matter get transferred along with the file of the writ petition

and ipso facto become the orders of the Tribunal. Any other interpretation

given to the provisions of Section 29 of the Act reproduced herein above,

would mean nullifying the proceedings taken and the orders passed by this

Court up to the stage when the writ petition stands transferred by operation

of Section 29 of the Act and the Tribunal would necessarily be called upon

to proceed in the matter de novo as if the writ petition was an application

presented to it for the first time under Section 19 of the Act.

12. As noticed above, the Tribunal, on receipt of records of the writ

petition which stands transferred under Section 29 of the Act, has the

option to proceed to deal with such petition from the stage which was

reached before such transfer or from an earlier stage or de novo as the

Tribunal may deem fit. And in case, the Tribunal proceeds to deal with the

matter from the stage it had reached before such transfer, all orders passed

and the proceedings taken in the matter shall be deemed to be the orders

passed and the proceedings taken by the Tribunal. It is only then the

Tribunal shall have the jurisdiction to proceed from the stage it was

reached before such transfer. It is a different matter that if the Tribunal

decides to relegate itself to an earlier stage in the proceedings or decides to

deal with the transferred petition de novo. In such eventuality, the

interim/interlocutory orders passed by the High Court shall efface.

13. It is in the light of aforesaid interpretation of Section 29 of the Act,

we need to look at the provisions of Section 17 of the Act, which gives

power and authority to the Tribunal in respect of contempt of itself, as the

High Court has and may exercise, and for this purpose makes the

provisions of Contempt of Courts Act, 1971 applicable subject to the

modifications given in Clause (a) and Clause (b) of Section 17 of the Act.

At this stage, it would be of pertinence to set out the provisions of Section

17 of the Act as well. Section 17 of the Act reads thus:-

"17. Powers 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 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."

14. Section 17 of the Act, undoubtedly and indisputably, provides for

exercise of contempt jurisdiction in relation to orders passed by the

Tribunal. Under Article 215 of the Constitution of India read with relevant

provisions of the Contempt of Courts Act, 1971, High Court alone has the

power and jurisdiction to punish for contempt of itself and in the similar

manner under Section 17 of the Act, the Tribunal has been given power and

jurisdiction to punish for contempt of itself. The Tribunal has no power or

authority to initiate any contempt proceeding in relation to an order passed

by the High Court and punish the violator for contempt of the High Court.

However, in the petitions which stand transferred to the Tribunal from the

High Court under Section 29 of the Act and the Tribunal decides to

proceed to deal with these petitions from the stage it was reached before

such transfer, all orders passed and the proceedings taken in such matters

shall be and shall be deemed to have been passed by the Tribunal. It is on

this analogy only, the Tribunal gets power and jurisdiction to vacate,

modify or vary such orders on an application moved by the aggrieved

party. The orders passed from time to time in the proceeding that stand

transferred to the Tribunal from the High Court under Section 29 of the Act

shall no longer remain the orders of the High Court and if that be the clear

position, the Tribunal under Section 17 of the Act shall have the

jurisdiction to initiate contempt proceedings for willful disobedience and

non-compliance of the orders, which were passed by the High Court and on

transfer became and shall be deemed to be the orders of the Tribunal.

15. The reliance placed by the learned counsel appearing for the

petitioners on the Rules of 1992 is totally misplaced. These Rules have

been framed by the Tribunal in the exercise of powers conferred by Section

23 of the Contempt of Courts Act, 1971 to regulate its procedure to deal

with contempt matters. I could not find anything in these Rules of

procedure, which may persuade this Court to take a view contrary to the

one that emanates from a conjoint reading of Sections 4, 14, 17 and 29 of

the Act.

16. There is another difficulty in accepting the argument propounded by

the learned counsel for the petitioners that this Court, despite transfer of the

writ petition under Section 29 of the Act, is competent to initiate contempt

proceedings and punish a person for contempt in relation to the orders

passed by it before the transfer of the writ petition. If this argument is

accepted, there may be an occasion where this Court is proceeding in

contempt in relation to an order passed by it before transfer of the petition,

which order is later on varied, modified or vacated by the Tribunal.

Accepting such interpretation would also take away the power of the

Tribunal to vary, modify or vacate such order, for, the Tribunal has no

power or jurisdiction to vary, modify, vacate or quash the orders of the

High Court. Such interpretation, if accepted, would give absurd and

incongruous results.

17. Viewed from any angle, I am of the considered view that contempt

in relation to the orders passed by this Court in the petitions, which

subsequently stand transferred to the Tribunal under Section 29 of the Act,

shall lie only and only before the Tribunal under Section 17 of the Act. The

orders and the proceedings taken in the petitions prior to their transfer shall

be and shall be deemed to be the orders and the proceedings of the

Tribunal, should the Tribunal decides to proceed to deal with the petitions

from the stage it was reached before such transfer. The powers conferred

upon the Tribunal under Sub-clause (b) of Sub Section (4) of Section 29 of

the Act to proceed in the transferred petitions from an earlier stage or de

novo as the Tribunal may deem fit fortifies the conclusion arrived at by me

herein above.

18. Assume that the Tribunal, on receipt of records of a writ petition

transferred by the High Court to it, proceeds to deal with the matter de

novo and in that eventuality, obviously, all orders passed by the High Court

and the proceedings taken shall efface as if no such orders had been passed

and proceedings taken by the High Court. Such power can be conceded in

favour of the Tribunal only, if the orders passed by this Court and the

proceedings taken in the petition subsequently transferred to the Tribunal

under Section 29 of the Act are deemed to be the orders passed and the

proceedings taken by the Tribunal.

19. The discussion made and the conclusion drawn herein above is

complete answer to the question posed for determination. These contempt

petitions are held not maintainable before this Court. It shall, however,

remain open to the petitioners to approach the Tribunal by way of an

application under Section 17 of the Act read with Contempt of Courts

(C.A.T.) Rules, 1992.

(Sanjeev Kumar) Judge Srinagar.

29.09.2021 Vinod, PS

Whether the order is speaking : Yes Whether the order is reportable: Yes