Service Matters are evergreen and abundant in Indian litigation. Same is reflected by the pendency of service matters before not only the Administrative Tribunals but also in the High Courts across the nation. One of the leading judgments pertaining to the powers of Tribunals constituted either under Article 323A or under Article 323B is certainly L. Chandra Kumar Vs Union Of India And Others (1997) 3 SCC 261. What is largely understood by the aforesaid judgment is that by virtue of Section 14 of the Administrative Tribunal's Act, 1985, the Central Administrative Tribunal is the forum of first instance for the agitation of a service matter defined under Section 3(q) of the Administrative Tribunal Act, 1985 and that orders/judgments of Central Administrative Tribunal is judicially reviewable by High Courts under Article 226/227 of the Constitution of India in the absence of the provisions of statutory appeal in the Administrative Tribunal Act, 1985. Additionally, it was also held that under Section 17 of the Administrative Tribunals Act, 1985, Tribunals were vested with the powers to punish the parties for its contempt.
This power is necessary to curb the lethargy of the Ministries/Departments and to compel them to scrupulously comply with the orders of the Tribunals. Measures like seeking the compliance affidavit, directing the presence of the officers responsible for the compliance of orders etc are taken by the Administrative Tribunals to check its own Contempt.
It is axiomatic that litigants (unfortunately mostly the official respondents) may be aggrieved by orders passed by the Tribunal while exercising its contempt jurisdiction. Will such orders be also a subject of judicial review by the High Court? The answer is an emphatic no in the light of Supreme Court's judgment in T. Sudhakar Prasad v. Govt. of AP, (2001) 1 SCC 516. The ratio of the aforesaid judgment was followed by the Supreme Court once again in R. Mohajan v. Shefali Sengupta (2012) 4 SCC 761. Yet, more often than not, High Courts do interfere with the orders passed by the Central Administrative Tribunals whilst exercising its contempt jurisdiction.
The Central Administrative Tribunal, Principal Bench, New Delhi had once ordered official Respondents in an Original Application to amend the Recruitment Rules of a cadre in terms of one Office Memorandum passed by Department of Personnel and Training within a period of ninety days of receipt of the certified copy. As is customary, the same order was not complied with. The Original Applicant moved a contempt petition. Under its contempt jurisdiction, Central Administrative Tribunal, Principal Bench, New Delhi ordered the presence of a very high ranking bureaucrat on the next date. The bureaucrat filed a Writ Petition before the High Court of Delhi and challenged the order of the Tribunal limited to the extent of seeking his presence on the next date. I happened to oppose the aforesaid petition. My research would land me to couple of decisions of the Hon'ble Supreme Court which would make it clear as crystal that the only forum to challenge the orders of Central Administrative Tribunal passed while exercising its contempt jurisdiction is only the Supreme Court. Banking upon aforesaid judgments, I raised a preliminary objection on the maintainability of the petition. It was discouraging that instead of addressing the issue of maintainability, the Division Bench of the High Court played a balancing act. An option was offered by the Bench that either it would stay the impugned order and hear the arguments on the preliminary objection or it would give a last opportunity to the official Respondents to comply with the order of the Central Administrative Tribunal. The Clients who were present in Court absolutely had no penchant to see their boss being scolded by the Central Administrative Tribunal and hence instructed me take the stern direction of the Hon'ble Court to the official Respondents to comply with the order of the Tribunal.
While the wrath of the Court towards the official Respondents did gave hopes to my Client, the order of the High Court was wholly without jurisdiction. There was no question of staying the impugned order nor was there any scope of entertaining the Petition at all since the High Court was lacking jurisdiction to judicially review orders of the Tribunal passed under its contempt jurisdiction.
The distinction between the Tribunal's orders passed under Section 14 of the Act and those passed under Section 17 i.e. under its contempt jurisdiction has been explained by the Supreme Court in T. Sudhakar Prasad v. Govt. of AP, (2001) 1 SCC 516 and further in R. Mohajan v. Shefali Sengupta (2012) 4 SCC 761.
In Mohajan's case certain directions were issued by the Central administrative Tribunal, Calcutta Bench. In order to comply with those directions three months time was given to the official Respondents. Due to the non compliance on the part of Official Respondents, Applicants were compelled to file a contempt petition. In the contempt petition by an order dated 11.06.2010, the Tribunal finally ordered the officers of official Respondents to be personally present before it on the next date. The aforesaid order was directly challenged in the Supreme Court by the official Respondents. The Original Applicants raised a preliminary objection as to the maintainability of the appeal and argued that by virtue court of L. Chandra Kumar's case, the official respondents were supposed to approach the High Court first. To counter the aforesaid contention, the government/official Respondent/Appellant in the Supreme Court would place reliance on Sudhakar's case and argue that the petition is maintainable.
The Supreme Court held that the directions contained in the impugned order were passed in contempt petition and hence the aggrieved party is free to directly approach the Supreme Court in the light of Sudharkar's case. Supreme Court discussed the Sudhakar's judgement wherein it scrutinized the provisions of Contempt of Courts Act as well as the Administrative Tribunals Act.
Section 17 of the Administrative Tribunal Act, 1985 provided that 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. Further Section 17(a) of the Act would provide that the references in the Contempt of Courts Act, 1971 to a High Court shall be construed as including a reference to such Tribunal.
Section 19 (1) of the Contempt of Courts Act, 1971 provides that an appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt. Further Section 19(4) provides that an appeal under Section 19 (1) shall be filed in case of an appeal to the Supreme Court, within sixty days, from the date of the order appealed against.
The provisions of the Section 17 of the Administrative Tribunals Act, 1985 specifically provide that the Tribunal will have to resort to Contempt of Courts Act, 1971 for initiating contempt proceedings. Hence, Supreme Court in Sudhakar's case held that Section 17 of the Administrative Tribunals Act is a piece of legislation by reference. Resultantly, the provisions of Contempt of Courts Act remain unchanged.
Supreme Court in Sudhakar's case conjointly read Section 17 of the Administrative Tribunals Act and Section of the Contempt of Court Act and held that an order passed by the Tribunal in contempt proceedings is appealable under Section 19 of the Act to the Supreme Court only. In Sudhakar's case the Supreme Court also clarified that the case of L. Chandra Kumar does not leave any room for the High Court's to judicially review an order passed by the Tribunal under its contempt jurisdiction when statutory remedy of appeal envisaged under Section 19 of the Contempt of Courts Act is pre-existing. Resultantly, in R. Mohajan's case, the appeal by the official Respondent was found to be maintainable.Unfortunately, of late, the relationship between the High Courts and the Administrative Tribunals has gone bitter. While the Hon'ble Delhi High Court has directed the Central Administrative Tribunal, Principal Bench, New Delhi to undergo course correction, the Central Administrative Tribunal too had expressed its inconvenience with increased number of High Court's remanding back orders. In another case the Delhi High Court would go on to the extent of holding that it feels like directing audio-video recording of the court proceedings of the Tribunal in the extra ordinary situation prevailing there. Under such circumstance, overreaching of jurisdiction of either the Tribunal or the High Court is not going provide respite to the struggling litigant.