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2008 DIGILAW 2481 (ALL)

UMA SHANKAR MISHRA (EX - CARRIAGE KHALASI) v. UNION OF INDIA

2008-12-05

A.P.SAHI, AMITAVA LALA

body2008
JUDGMENT By the Court.—The petitioner, a retired Khalasi of the Railways, has prayed for quashing of the order dated 11.1.2007 passed by the Tribunal rejecting the contempt petition of the applicant after recording that the directions of the Tribunal have been complied with and there is no wilful disobedience. He has further prayed for an appropriate calculation of his pension amount which according to him, has remained unpaid. 2. The petitioner superannuated on 30.6.1983 and a pension pay order was drawn up copy whereof is Annexure 1 to the writ petition. The said pension pay order recites that the petitioner was entitled to a sum of Rs. 66/- and according to the endorsement made thereon the said pension order was revised and the amount was stepped up to Rs. 150/-, inclusive of the additional reliefs which were admissible in terms of the circular of the Railway Board. 3. The actual payment to the applicant was subsequently delayed and the petitioner alleges that he filed several representations but of no avail, as a result whereof the approached this Court by filing a writ petition which was disposed of on 7.2.2001 with a direction to approach the railway authorities. No action was taken by the respondent Railways whereafter the petitioner preferred a second writ petition before this Court and the same was dismissed on 29.9.2003 on the ground that he had the remedy of filing a contempt application. Immediately upon the dismissal of the said writ petition, the respondent Railways passed an order on 5th November, 2003, advising the concerned bank, which had been disbursing the pension amount to the petitioner, to make the payments as per the re-calculations indicated therein. The said letter is Annexure 3 to the writ petition. 4. The petitioner thereafter approached the Central Administrative Tribunal by filing an Original Application wherein he sought the relief of an appropriate direction to calculate the pension of the petitioner correctly w.e.f. 1.7.1983 at the rate of Rs. 326 per month up to 1985 which had been wrongly paid to him at the rate of Rs. 150 per month. The prayer clause which has been extracted in the order of the tribunal, copy whereof is Annexure 6 to the writ petition, does not indicate any prayer for quashing of the letter/advise dated 5.11.2003. 326 per month up to 1985 which had been wrongly paid to him at the rate of Rs. 150 per month. The prayer clause which has been extracted in the order of the tribunal, copy whereof is Annexure 6 to the writ petition, does not indicate any prayer for quashing of the letter/advise dated 5.11.2003. Nonetheless, the Tribunal proceeded to examine the claim of the petitioner and found that the pension of the petitioner had been fixed but the respondents were not aware as to whether the amount which had been fixed, had actually been paid or not. In view of this, the Tribunal issued directions that the railway authorities shall ensure the payment of retiral dues and dearness reliefs admissible thereon to the applicant from time to time, within a period of two months, together with interest at the rate of 10% per annum from the date it was due to the applicant. This judgment by the Tribunal was delivered on 3.12.2004. 5. The applicant alleging non-compliance of the said order moved Contempt Petition No. 32 of 2005 before the Tribunal and prayed for taking action against the railway authorities. In the said contempt petition, affidavits were exchanged and the Tribunal also summoned the relevant records with a direction to the Divisional Finance Manager of the Railways for preparing a statement of accounts indicating the actual payment to the petitioner. This was done on the allegation of the petitioner that he was being paid only Rs. 66/- per month as pension. After the affidavits were filed, the Tribunal found that as per statement of the concerned bank and their letter dated 10.3.2005, the payments that were due, including the difference of pension as per order of the Railways dated 5.11.2003, had been made and future payments were also being made to the petitioner. The Tribunal came to the conclusion that the entitlement of pension being claimed by the petitioner, did not require any further investigation as the Tribunal was of the view that the direction of the Tribunal had been complied with. Accordingly, the notices were discharged and the contempt petition was dismissed. Aggrieved, the petitioner is before us in this writ petition. 6. Accordingly, the notices were discharged and the contempt petition was dismissed. Aggrieved, the petitioner is before us in this writ petition. 6. A preliminary objection has been raised by the learned counsel for the Railways relying on the decision of T. Sudhakar Prasad v. Govt of A.P., (2001) 1 SCC 516 to the effect that the writ petition would not be maintainable before this Court against the order impugned and the remedy of the petitioner lies by way of an appeal before the Apex Court in view of the provisions of Section 17 of the Administrative Tribunal Act read with Section 19 of the Contempt of Courts Act. 7. Before entering into the merits of the claim we may deal with this proposition. A perusal of the judgment relied on by the learned counsel for the Railways leaves no room for doubt that an appeal does lie before the Supreme Court in terms of Section 17 of the Administrative Tribunal Act against any order or decision of the Tribunal punishing for contempt. The Apex Court in para 14 of the said decision extracted the summary of the jurisdictional power of the Tribunal as laid down by the Constitution Bench in the case of L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 wherein it was clearly stated that all other decisions of the Tribunal rendered in cases that they are specifically empowered to adjudicate upon, by virtue of their parent statute will also be subject to scrutiny before a Division Bench of their respective High Courts. 8. In T. Sudhakar Prasad’s case (supra), the Supreme Court, however held, that the power to punish for contempt as prescribed under Section 17, was not taken away and it remains intact even though the tribunal continues to be amenable to the jurisdiction of the High Court. It was further held that in view of the specific statutory provisions, the power of the Tribunal to deal with its own contempt was available and any order punishing for contempt was appealable keeping in view of the provision of Section 19 of the Contempt of Courts Act. It was also held that jurisdiction should not be confused with status and subordination. It was also held that jurisdiction should not be confused with status and subordination. The Court further cautioned that there was no provision of intra tribunal appeal under the Administrative Tribunal Act and in such a situation the order punishing for contempt was directly appealable under Section 19 to the Supreme Court only. We have to bear this distinction in mind, inasmuch as against the order of the learned Single Judge in the High Court in matters arising out of punishing for contempt, an intra Court appeal is maintainable under Section 19 of the Contempt of Courts Act before a Division Bench, and an order against which no appeal lies, an intra Court appeal is maintainable before the Division Bench under Chapter VIII Rule 5 the Rules of this Court. 9. In the instant case, the order impugned is not an order of punishing for contempt. The notices were issued and upon a response being filed by the opposite party, the Tribunal dropped the proceeding and discharged the notices as in its opinion the order had been complied with. Thus, the order impugned is an order discharging notices and not punishing the opposite party for any contempt. In our opinion the proposition as laid down in T. Sudhakar Prasad’s case (supra), therefore, is not attracted as the order impugned is not amenable to appeal under Section 19 of the Contempt of Court Act read with Section 17 of the Administrative Tribunal Act before the Supreme Court. 10. The petitioner who appeared in person invited our attention time and again to the fact that his pension has not been correctly calculated as per the Railway Board letter dated 23.9.1983 and as narrated in his various representations, one of which has been filed as Annexure 10 to the writ petition dated 16.1.2002. In essence the petitioner questions the correctness of the calculations as contained in the letter dated 5.11.2003. According to his representation the basic calculation should have commenced at the rate of Rs. 326/- and that the actual calculation is wrong. The question as to whether the calculation is correct or incorrect could be gone into only if there had been a challenge to the order dated 5.11.2003. We do not find any challenge before this Court either to the said letter or to the judgment of the Tribunal dated 3.12.2004. 326/- and that the actual calculation is wrong. The question as to whether the calculation is correct or incorrect could be gone into only if there had been a challenge to the order dated 5.11.2003. We do not find any challenge before this Court either to the said letter or to the judgment of the Tribunal dated 3.12.2004. In view of this, even though it is unnecessary to go into the correctness or otherwise of the said claim, what we find is that the letter dated 5.11.2003 refers to the re-calculation on the strength of the circular dated 23.9.1983. A perusal of the said circular, copy whereof has been filed along with the affidavit of the Railways dated 15.9.2008, would indicate that the rate of additional dearness allowance which had been revised and made effective from 1.3.1983 onwards, has been made applicable for payment w.e.f. 1.7.1983 onwards as per clause (C)(i) of the said circular. The rate of the dearness allowance was to the maximum of Rs. 326/- and the calculation was to be made according to the rates prescribed against the aforesaid clause. The said calculation has been clearly spelled out in the letter dated 5.11.2003, the basic pension after deducting the commuted amount received by the petitioner has been indicated. The petitioner who has appeared in person, has been unable to point out any error in the said calculations. We will not dilate any further on the said issue, as it is settled law that the Contempt Court cannot go behind the jurisdiction rendered by the parent Court. In the instant case the impugned order is only to the effect that the Tribunal found substantial compliance of the direction of the earlier judgment and, therefore, refused to proceed with the contempt matter. Whatever deficiency had been pointed out by the petitioner had been made good, as per the explanation offered before the Contempt Court. In our opinion, if the petitioner was aggrieved by the order dated 5.11.2003 or by the judgment of the Tribunal dated 3.12.2004 then it was open to him to take the matter further to this Court which does not appear to have been done so far. 11. In our opinion, if the petitioner was aggrieved by the order dated 5.11.2003 or by the judgment of the Tribunal dated 3.12.2004 then it was open to him to take the matter further to this Court which does not appear to have been done so far. 11. In view of the aforesaid position, we find no error in the order impugned so as to warrant to exercise of jurisdiction under Article 226 of the Constitution of India, and the writ petition is accordingly, dismissed without prejudice to the rights of the petitioner in respect of his claim on merits. ———