# Pankaj Dhar Dubey v. U.O.I. & Ors

- **Citation:** (2022) 7 ILRA 671
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-25
- **Case number:** Writ A No. 6014 of 2022
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pankaj-dhar-dubey-v-u-o-i-ors-48826
- **Pages:** 33

## Headnote

Law
-
Promotion
-
Constitutional Validity - Constitution (42nd
Amendment) Act, 1976 - Section 46 -
Administrative
Tribunals
Act,
1985
-
Sections 5(2), 5(4) & 27 - Central
Administrative
Tribunal
Act,
1985
-
Section 17.

Writ jurisdiction in contempt proceedings
- Ordinarily the High Court, in the exercise
of its powers of judicial review u/Article
226 of the Constitution of India and its
power
of
judicial
superintendence
u/Article 227 of the Constitution of India,
would not interfere with the order of the
Tribunal, passed in the exercise of its
contempt jurisdiction u/s 17 of the 1985
Act, discharging the contemnors after
holding that no case of willful contempt
was made out against the respondents.
(Para 25)

This Court cannot enter into the merits of the
matter as the same is subject to interpretation
which can be done on original side as in
contempt jurisdiction the Courts of law has to
not only uphold the majesty and dignity of the
Courts of law but also lift the veil so as to find
out as to whether there was willful disobedience
of the orders passed on original side and not to
function as an original or appellate court for
determination of the dispute inter se between
the parties. (Para 33)

B. Alternative remedy - It is always open
for the petitioner herein to take recourse
to the provisions contained u/s 19(v) of
the Administrative Tribunals Act, 1985
while filing original application before the
5th Respondent challenging the orders
negating the claim of the petitioner or
depriving the petitioner of his legal and
genuine
right
to
be
considered
for
promotion. Even otherwise, from the all four
corners of law this Court finds that motion so
pressed in service by means of the present writ
petition is not even otherwise liable to be
entertained under Article 226/227 of the
Constitution of India particularly when the order
itself was conditional subject to existence of
vacancy and suitability of the petitioner as per
the Rules and once the issue w.r.t. the fact that
there remains no vacancy against which the
claim of the petitioner would be considered has
been raised by the Railways then it was rightly
not interfered by the 5th Respondent in
contempt proceedings as the Contempt Court
cannot go into the merit of the matter as the
672 INDIAN LAW REPORTS ALLAHABAD SERIES
remedy lies elsewhere and not in contempt
jurisdiction. (Para 34)

C. Constitutional Validity - Constitution
(Forty-Second Amendment) Act, 1976:
Section 46 - The petitioner herein as though
raised the issue of constitutional validity of
the 42nd Amendment Act, 1976 in so far as it
pertains to S. 46 which deals with the matter
pertaining to Tribunal, however, neither the
UOI nor the respective Secretary to whom the
Ministry is to be represented have been made
party in the present proceedings. This Court
finds that the UOI through General Manager
North Eastern Railway has only been arrayed
as a party. Thus in the absence of any
impleadment of a proper and necessary
party this Court cannot delve into the
issue regarding constitutional validity so
sought to be raised at the behest of the
petitioner, leaving it open to the petitioner
to
challenge
the
same
in
appropriate
proceedings as and when it is occasioned.
(Para 36, 37)

D. The petitioner wants a direction in the
nature of Mandamus commanding the 5th
Respondent
to
decide
the
case
by
constituting a Bench of two members. The
writ courts would be well advised to decide the
petitions on the points raised in the petition and if in
a rare case keeping in view the facts and
circumstances of the case any additional points are
to be raised then the concerned and affected parties
should be put to the notice of the additional points
to satisfy the principles of natural justice. Parties
cannot be taken by surprise. (Para 36)

The present writ petition challenging the
order whereby contempt proceedings has
been
dropped
and
notices
have
been
discharged is not liable to be interfered in
present pr

## Text

_Characters 0–39,917 of 113,273. This is a partial read: ask again with offset=39917 for what follows._

7 All. Pankaj Dhar Dubey Vs. U.O.I. & Ors.
671
presumption that the answer key is correct
as the same is based on experts opinion
given by the persons specialised. In the
event of any doubt, benefit should go to the
examination authority rather than to the
candidate. It is with a rider that the Court
should not re-evaluate or scrutinize the
answer sheets of the candidates as it has no
expertise in the matter, the academic
matters are best left to the academicians
there being no scope of judicial review in
the matter.

33. Appropriately, considering the
capitulations made by learned counsel for
respondent no.2 and law laid down by the
Apex Court, established position of law,
this Court finds no good ground to interfere
in the present petition, the same is
accordingly dismissed.
----------
(2022)07ILR A671
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.05.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ A No. 6014 of 2022

Pankaj Dhar Dubey ...Appellant
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Appellant:
Sri Bashist Tiwari, Sri Rajesh Kumar

Counsel for the Respondents:
A.S.G.I., Sri Vivek Kumar Singh

A.
Service
Law
-
Promotion
-
Constitutional Validity - Constitution (42nd
Amendment) Act, 1976 - Section 46 -
Administrative
Tribunals
Act,
1985
-
Sections 5(2), 5(4) & 27 - Central
Administrative
Tribunal
Act,
1985
-
Section 17.

Writ jurisdiction in contempt proceedings
- Ordinarily the High Court, in the exercise
of its powers of judicial review u/Article
226 of the Constitution of India and its
power
of
judicial
superintendence
u/Article 227 of the Constitution of India,
would not interfere with the order of the
Tribunal, passed in the exercise of its
contempt jurisdiction u/s 17 of the 1985
Act, discharging the contemnors after
holding that no case of willful contempt
was made out against the respondents.
(Para 25)

This Court cannot enter into the merits of the
matter as the same is subject to interpretation
which can be done on original side as in
contempt jurisdiction the Courts of law has to
not only uphold the majesty and dignity of the
Courts of law but also lift the veil so as to find
out as to whether there was willful disobedience
of the orders passed on original side and not to
function as an original or appellate court for
determination of the dispute inter se between
the parties. (Para 33)

B. Alternative remedy - It is always open
for the petitioner herein to take recourse
to the provisions contained u/s 19(v) of
the Administrative Tribunals Act, 1985
while filing original application before the
5th Respondent challenging the orders
negating the claim of the petitioner or
depriving the petitioner of his legal and
genuine
right
to
be
considered
for
promotion. Even otherwise, from the all four
corners of law this Court finds that motion so
pressed in service by means of the present writ
petition is not even otherwise liable to be
entertained under Article 226/227 of the
Constitution of India particularly when the order
itself was conditional subject to existence of
vacancy and suitability of the petitioner as per
the Rules and once the issue w.r.t. the fact that
there remains no vacancy against which the
claim of the petitioner would be considered has
been raised by the Railways then it was rightly
not interfered by the 5th Respondent in
contempt proceedings as the Contempt Court
cannot go into the merit of the matter as the
672 INDIAN LAW REPORTS ALLAHABAD SERIES
remedy lies elsewhere and not in contempt
jurisdiction. (Para 34)

C. Constitutional Validity - Constitution
(Forty-Second Amendment) Act, 1976:
Section 46 - The petitioner herein as though
raised the issue of constitutional validity of
the 42nd Amendment Act, 1976 in so far as it
pertains to S. 46 which deals with the matter
pertaining to Tribunal, however, neither the
UOI nor the respective Secretary to whom the
Ministry is to be represented have been made
party in the present proceedings. This Court
finds that the UOI through General Manager
North Eastern Railway has only been arrayed
as a party. Thus in the absence of any
impleadment of a proper and necessary
party this Court cannot delve into the
issue regarding constitutional validity so
sought to be raised at the behest of the
petitioner, leaving it open to the petitioner
to
challenge
the
same
in
appropriate
proceedings as and when it is occasioned.
(Para 36, 37)

D. The petitioner wants a direction in the
nature of Mandamus commanding the 5th
Respondent
to
decide
the
case
by
constituting a Bench of two members. The
writ courts would be well advised to decide the
petitions on the points raised in the petition and if in
a rare case keeping in view the facts and
circumstances of the case any additional points are
to be raised then the concerned and affected parties
should be put to the notice of the additional points
to satisfy the principles of natural justice. Parties
cannot be taken by surprise. (Para 36)

The present writ petition challenging the
order whereby contempt proceedings has
been
dropped
and
notices
have
been
discharged is not liable to be interfered in
present proceeding and thus it is liable to be
dismissed. (Para 38)

Writ petition dismissed. (E-4)

Precedent followed:

1. T Sudhakar Prasad Vs Govt of A.P. & ors.,
(2001) 1 SCC 516 (Para 14)
2. Dr. P.V. Jaganmohan Vs U.O.I. Service Bench
No. 1793 of 2013, decided on 30.05.2014 (Para
14)

3. Dr. Harish Kumar Vs S.C. Gairola & ors., Writ
Petition (S/B) No. 590 of 2018, decided on
20.12.2018 (Para 14)

4. Santosh Kumar Srivastava Vs The Managing
Director, U.P. Rajiya Nirman Nigam Ltd. & ors.,
(2001) 1 UPLBEC 642 (Para 29)

5. Kapildeo Prasad Sah & ors. Vs St. of Bihar,
(1999) 7 SCC 569 (Para 30)

6. Jhareswar Prasad Paul & anr. Vs Tarak Nath
Ganguly & ors., 2002 CRI. L.J. 2935 (Para 31)

7. Director of Education, Uttaranchal & ors. Vs
Ved Prakash Joshi & ors., 2005 CRI. L.J. 3731
(Para 32)

8. V.K. Majotra Vs U.O.I. & ors., AIR 2003 SC
3909 (Para 36)

Precedent distinguished:

1. L. Chandra Kumar Vs U.O.I. (1997) 3 SCC
261 (Para 15, 26)

2. Delhi Judicial Service Association, Tis Hazari
Court, Delhi Vs St. of Guj. & ors., (1991) 4 SCC
406 (Para 15)

3. Sujitendra Nath Singh Roy Vs St. of W.B.,
2015 AIR SCW 1833 (Para 15)

Present
petition
assails
order
dated
03.12.2021,
passed
by
Central
Administrative Tribunal, Allahabad Bench,
Allahabad.

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Vikas Budhwar, J.)

1. Heard Sri Bashist Tiwari, learned
counsel assisted by Sri Rajesh Kumar,
learned counsel for the petitioner, Sri Vivek
Kumar Singh, who has accepted notice on
7 All. Pankaj Dhar Dubey Vs. U.O.I. & Ors.
673
behalf of the respondent no.1-Union of
India.

2. In view of the order which is being
proposed to be passed today there is no
need to issue notice to the respondent nos.2
to 5.

3. This is a petition under Article 226
of the Constitution of India instituted by the
petitioner seeking following reliefs:-

"(i) To issue writ order or
direction in the nature of certiorari
quashing the impugned order dated
03.12.2021
passed
by
Central
Administrative
Tribunal,
Allahabad
Bench,
Allahabad
in
Civil
Misc.
Contempt Petition No.330/00070 of 2010,
Pankaj Dhar Dubey v. U.C. Dwadas
Shreni and Others (Annexure No.1 to the
writ petition) arising out of order dated
06.12.2006
passed
by
Central
Administrative
Tribunal,
Allahabad
Bench, Allahabad in Original Application
No.509 of 2004, Pankaj Dhar Dubey v.
Union of India and Others (Annexure
No.9 to the writ petition).

(ii) To issue writ order or
direction in the nature of mandamus
commanding and directing the respondents
to give promotion to the petitioner on the
post of Lab Assistant in scale of Rs.530610/- in pursuance of Railway Board's
Letter dated 21.01.1984 (Annexure No.3 to
the writ petition)

(iii) To issue writ order or
direction in the nature of mandamus
directing
the
Central
Administrative
Tribunal,
Allahabad
Bench,
Allahabad/respondent No.5 to decide the
case by constituting a bench of two judicial
members.

(iv) To issue writ order or
direction in the nature of declaration
declaring Section 46 of the Constitution
(Forty-second Amendment) Act, 1976 by
which Article 323A has been inserted in the
Constitution of India (Annexure No.15 to
the writ petition) and Section 5(2) and 5(4)
of the Administrative Tribunals Act, 1985
(Annexure No.16 to the writ petition) as
unconstitutional and ultra vires and struck
down the same being violative of Articles
50 and 368 of the Constitution of India and
against the basic structure of Constitution
of India."

4. On 16.05.2022 following order was
passed:-

"On being confronted with the
preliminary objection raised by Sri Vivek
Kumar Singh, learned counsel appearing
for Union of India that the present writ
petition against the order dropping the
contempt proceedings is not maintainable,
Sri Bashist Tiwari, learned counsel for the
petitioner although sought to argue on the
issue of preliminary objection, however,
after some argument he prays that the
matter may be adjourned for today and
may be listed as fresh after one week so as
to enable him to further prepare the matter.

Since this is a nominated matter,
therefore, put up this case as fresh on 25th
May, 2022, at 2:00 P.M. for which learned
counsel for the parties have agreed.

It is made clear that in case
learned counsel for the parties are not
present, this Court shall proceed to
consider and decide the matter on merits."

5. Perusal of the reliefs as sought in
the present writ petition it will reveal that
the petitioner has insisted that this Court
674 INDIAN LAW REPORTS ALLAHABAD SERIES
may issue a writ, order or direction in the
nature of certiorari quashing the order
dated 03.12.2021, passed by Central
Administrative Tribunal, Allahabad Bench,
Allahabad (5th Respondent) in Civil Misc.
Contempt Petition No.330/00070 of 2010
in Original Application No.330/00509 of
2004 (Pankaj Dhar Dubey vs. U.C. Dwadas
Shreni and two Others) whereby the
contempt petition so preferred by the
petitioner herein was consigned to record
and the notices were discharged on the
ground that there had been no willful
disobedience on the part of the alleged
contemnors, who were joined as opposite
parties in the above noted contempt
petition. Further relief is also being sought
directing the respondents herein to give
promotion to the petitioner on the post of
Lab Assistant in the pay scale of Rs.530610/- in pursuance of the Railway Board's
Letter dated 21.01.1984 and to further
declare Section 46 of the Constitution of
India (42nd Amendment) Act, 1976 by
which Article 323A has been inserted in the
Constitution of India and Sections 5(2) and
5(4) of the Administrative Tribunals Act,
1985 as unconstitutional, ultra vires and
struck down the same being violative of
Articles 50 and 368 of the Constitution of
India.

6. Factual matrix of the case as
worded in the present writ petition are that
the petitioner claims himself to be engaged
as Substitute Science Bearer in the pay
scale of Rs.2550-3200/- by virtue of the
order dated 25.01.2000 passed by the
Assistant Personnel Officer, Headquarters,
North
Eastern
Railway,
Gorakhpur.
Alleging
disparity
and
differential
treatment the petitioner filed Original Suit
No.1136 of 2003, Pankaj Dhar Dubey vs.
Union of India and Others, before the
Central Administrative Tribunal, Allahabad
Bench, Allahabad (5th respondent) seeking
a direction to be promoted as Lab Assistant
in the pay scale of Rs.530-610/-(prerevised) in pursuance of the Railway
Board's Letter dated 21.01.1984. The
Original Application so preferred by the
petitioner herein came to be decided by the
5th respondent by virtue of the order dated
23.09.2003 while granting liberty to the
petitioner to file a fresh representation
raising his grievances and the same was
directed to be considered by the Railways.
The petitioner has further come up with the
case that on 17.12.2004 the petitioner was
granted temporary status with effect from
23.05.2000 and by virtue of the order dated
28.02.2005 the petitioner was posted as
Chaukidar in the pay scale of Rs.25003200/-
in
the
Telecommunication
Department of Railways.

7. The petitioner herein has further
averred that he had instituted Original
Application No.509 of 2004 before the 5th
respondent being Pankaj Dhar Dubey vs.
Union of India and Others seeking
following reliefs:-

"(i) To issue an order or direction
setting aside the order dated 22.12.2003
passed by C.P. Office, N.E. Railway,
Gorakhpur.

(ii) To issue an order or direction
commanding the respondents to give
promotion to the applicant as Lab Assistant
in the scale of Rs.530-610/- in pursuance of
Railway Board's letter dated 21.01.1984
after regularizing the applicant in scale of
Rs.2550-3200 in Boys Inter College, N.E.
Railway, Gorakhpur.

(iii) To issue an order or
direction commanding the respondents to
give seniority, arrears of salary for
7 All. Pankaj Dhar Dubey Vs. U.O.I. & Ors.
675
difference of pay for the post of Science
Bearer and Lab Assistant after completion
of one year service from the date of his
appointment
excluding
four
months'
period."

8. Record reveals that the Original
Application No. 509 of 2004 so instituted
by the petitioner herein came to be
disposed of by Central Administrative
Tribunal, Allahabad Bench, Allahabad on
06.12.2006 with the following directions:-

"8. In the result, the O.A. Is
finally disposed of with a direction to the
respondents to consider the case of the
applicant for promotion to the post of Lab
Assistant in the School run by the N.E.R., if
there is vacancy and if the applicant is
otherwise found suitable under the relevant
Rules within a period of six months from
the date of certified copy of this order is
produced before them. The order dated
22.12.2003
(Annexure-1)
is
rendered
ineffective and will not come in the way of
such consideration for promotion. No order
as to costs."

9. The petitioner herein has further
averred in paragraph 13 of the writ petition
that a review application was preferred by the
Railways against the order dated 06.12.2006,
which was dismissed by the 5th respondent
on 10.12.2007 as time barred. The records
further reveal that the Railways preferred
Writ Petition No.16050/2008 which was
dismissed on 27.03.2008. The operative
portion of the order is being quoted herein as
under:-

"1. Contesting respondent, Pankaj
Dhar Dubey, was appointed on casual basis
by the petitioners. He filed an Original
Application No. 1136 of 2003 before the
Central Administrative Tribunal, Allahabad
Bench, Allahabad for his regularization. This
was disposed of on 23rd day of September,
2003 directing the petitioners to decide the
case of contesting respondent. Petitioners
rejected the case of contesting respondent for
regulation
by
the
order
dated
22nd
December, 2003. Contesting respondent filed
another Original Application No. 509 of 2004
challenging the order dated 22nd December,
2003, wherein he prayed that he should be
regularized as well as promoted to the post of
Lab Assistant. During the pendency of the
said application, contesting respondent was
regularized on Group D post. The Central
Administrative Tribunal by its order dated
6th day of December, 2006 has directed the
petitioners to reconsider the promotion of
contesting respondent. Hence this writ
petition.

2. We have hear learned counsel
for the petitioners and Sri Bashist Tiwari,
learned
counsel
for
the
contesting
respondent.

3.
Learned
Central
Administrative
Tribunal
under
the
impugned judgment has sent back the
matter to the petitioners for reconsider of
the case of the contesting respondent for
promotion.
Needless
to
add,
this
consideration has to be done in accordance
with law.

4. In view of the aforesaid, we
see no justification to interfere in the
matter.

5. This writ petition is dismissed
with the aforesaid observations."

10. In the meantime, it appears that a
contempt petition was also instituted by the
petitioner herein in which the following
order was passed:-
676 INDIAN LAW REPORTS ALLAHABAD SERIES

"1. Sri A.V. Srivastava, learned
counsel for the respondents has stated at
the outset that he has filed Review
Application prior to filing of Review
Application against the order passed in
Original
Application.
Sri
B.
Tiwari,
learned counsel for the applicant states
that the said Review Application has been
dismissed on the ground of limitation and
as such the order of this Tribunal ought to
have been complied by the respondents in
true spirit.

2. Having heard the counsel for
the parties, we are satisfied that ends of
justice would be met if the respondents are
directed to ensure the compliance of the
order of this Tribunal passed in the O.A.
within a period of three months from the
date of receipt of a certified copy of this
order. In case the compliance is not done
within three months, it would be open to the
applicant to file fresh contempt petition.

3. In view of the above, the CCP
is dismissed. Notices are discharged."

11. Records further reveal that the
petitioner
herein
also
instituted
an
Execution Application under Section 27 of
the Administrative Tribunals Act, 1985 for
execution of the judgment and the order
dated 06.12.2006 in which on 18.11.2009
the following order was passed :-

"1. MA (Execution) No. 12 of
2008 : Heard learned counsel for the
parties.

2. Applicant filed OA No. 509 of
2004 praying for direction to set aside
order dated 22.12.2003 passed by C.P.
Office, N.E. Railway, Gorakhpur, to issue
an
order/direction
commanding
the
respondents to give promotion to the
applicant as Lab. Assistant in the scale of
Rs. 530-610/- in pursuance to Railway
Board's
letter
dated
21.1.1984
after
regularizing the applicant in scale of Rs.
2550-3200/- in Boys Inter College, N.E.
Railway, Gorakhpur and for direction
commanding the respondents to give
seniority, arrears of salary for difference of
pay for the post of 'Science Bearer' and Lab
Assistant etc. Tribunal vide order dated
06.12.2006, decided OA No. 509 of 2004.
Para 5 and 7 of the Tribunal order dated
6.12.2006 is reproduced below :-

"5. We have considered the
respective arguments in the context of the
applicant's claim for promotion to the post
of Lab Assistant. He appears to be correct
on the point that the posts of Lab Assistant
were created vide letter dated 6.9.1984
(Annexure-9) of General Manager (P) for
Boys High School, Gorakhpur, run by
N.E.R. There is no clear cut denial from the
side of the respondents of the factum of
creation of posts of Lab Assistant. The
reply does not say that the said posts were
subsequently abolished or surrendered or
kept in abeyance. Though there is such plea
in respect of the post of Science Bearer,
which the applicant was holding before
20.1.2003. So to the extent the order dated
22.12.2003 (Annexure-1) says that there
are no posts of Lab Assistant in the School
run by N.E.R. does not appear to be
correct.

7. Sri Srivastava may be correct
in saying that the casual worker or worker
with temporary status before regularization
may not be eligible for promotion to the
post of Lab Assistant. As on today, the
applicant stands regularized in Group 'D'
as Chowkidar, but in a different unit named
Signal Communication Microwave. The
question is as to whether a Group 'D'
7 All. Pankaj Dhar Dubey Vs. U.O.I. & Ors.
677
employees of this unit will be eligible for
promotion to the post of Lab Assistant in
the school, run by the N.E.R. The letter
dated 21.1.1984 alone does not appear to
be sufficient to decide the question as it can
be construed both ways. No doubt, para 2
of the letter dated 21.1.1984 does not say
that such Group 'D' employees should be of
Laboratory or of the School run by the
N.E.R. Or of a particular unit. But then the
Railways is a big organization divided into
different division/units so without knowing
the detailed scheme for filling up the post
of Lab Assistant in the school of N.E.R., it
is difficult to pronounce whether regular
Group 'D' employee of a unit, different to
the unit where such vacancies may exist,
will or will not be eligible for such
promotion. We leave it to the authorities
concerned to decide the same in the light of
the relevant Rules on the subject."

3. A statement is made at the bar
that the respondents challenged said order
by filing Writ Petition in Allahabad High
Court which was dismissed; Contempt
Petition against respondent has also been
dismissed.

4. Present Execution Application
has been filed seeking Execution of the
order of Tribunal dated 6.12.2006 (referred
to above). The applicant has himself filed
copy of order dated 25.4.2008 titled
'Speaking Order', communicated through
department
letter
dated
25.04.2008
(Annexure-5 to the Execution Application).
The relevant extract of the said order reads
:-

"...............I find that at present
the applicant belongs to Signal and
Telecom department whereas the post of
Lab Asst. which was earlier belonging to
Railway School is not existing at present as
such his claim is not considerable."

5. Perusal of the said order
shows that observations made in para no. 7
of the Tribunal order (quoted above) have
not been taken into account.

6. In view of the above said
speaking order dated 25.04.2008 is set
aside with direction to the concerned
respondent authority to pass fresh orders
(within three months of receipt of certified
copy of this order) and comply with order
of Tribunal dated 21.12.2003 in O.A. No.
509 of 2004.

7. Execution Application No. 12
of 2008 is disposed of subject to above
observations."

12. Eventually, by virtue of the order
dated 25.04.2008, the matter pertaining to
the promotion of the petitioner was found
not in favour of the petitioner herein and
accordingly a speaking order was passed by
respondent-General Manager North Eastern
Railway,
Gorakhpur.
Thereafter
the
petitioner herein preferred a Contempt
Application No. 70 of 2010 before the 5th
Respondent on which on 09.11.2010
notices were issued requiring passing of a
conditional order for framing of the charges
in case the order passed in Original
Application No.509 of 2004 (Pankaj Dhar
Dubey vs. Union of India and Others) is not
complied with. The said sequence of event
occasioned the Railways to prefer Writ-A
No.72926 of 2010 (Union of India vs.
Pankaj Dhar Dubey and Another) before
this Court, which came to be dismissed by
this Court on 17.08.2017. The operative
portion of the said order is being quoted as
under:-
678 INDIAN LAW REPORTS ALLAHABAD SERIES

"(23)
Further,
as
observed
hereinabove, once the Tribunal itself had
issued
directions
on
22.01.2008
for
ensuring the orders for compliance in the
contempt to jurisdiction and leaving it open
to the respondent no. 1 to file a fresh
Contempt Application in the event of noncompliance vide judgment dated 22nd
January, 2008, we see no reason over and
above the reasons indicated hereinabove as
to why the respondent no. 1 could not have
filed the Contempt Application when he
alleges the order dated 24th February,
2010 to be a contemptuous order which is
yet to be examined in the proceedings
before the Tribunal.

(24) The Contention raised on
merits as to whether the orders of the
Tribunal were being capable of complied
with or not, is a matter of defence but that
by itself cannot be a ground to treat the
proceedings initiated under Section 17 to
be without jurisdiction or unfounded.

(25) Consequently, for all the
aforesaid reasons and the facts in the
present case that have emerged, we do not
find this to be a case to invoke our extraordinary jurisdiction under Article 226 of
the Constitution of India or our supervisory
jurisdiction under Article 227 thereof so as
to preempt the proceedings of contempt on
the mere issuance of the notices to the
officials of the petitioners."

13. Now by virtue of the order dated
03.12.2021 passed in Civil Misc. Contempt
Petition No.330/00070 of 2010 in Original
Application No.330/00509 of 2004 (Pankaj
Dhar Dubey vs. U.C. Dwadas Shreni and
two Others) the same has been consigned to
record and notices so issued to the
respondents herein have been discharged.

14. Sri Vivek Kumar Singh, learned
counsel for the respondent no.1-Union of
India, at the very outset, has raised a
preliminary
objection
regarding
maintainability of the present writ petition
before this Court on the ground that the
order which is being impugned in the
present proceedings is an order discharging
the alleged contemnors and not proceeding
against them, against which no writ petition
under Article 226/227 of the Constitution
of India lies before this Court. In order to
buttress his submission he has cited the
following judgments:-

(A) T. Sudhakar Prasad vs.
Government of A.P. And Others, (2001)
1 SCC 516

(B) Service Bench No.1793 of
2013 (Dr. P.V. Jaganmohan vs. Union of
India), decided on 30th May, 2014.

(c) Writ Petition (S/B) No.590
of 2018 (Dr. Harish Kumar vs. Dr. S.C.
Gairola
and
Others),
decided
on
20.12.2018

15. On the other hand, Sri Bashist
Tiwari, learned counsel for the petitioner
has cited the following judgments in order
to substantiate his argument that the writ
petition lies before this Court in the
proceeding under Article 226/227 of the
Constitution of India even against the order
wherein the contemnors are discharged:-

(A)
L.Chandra
Kumar
vs.
Union of India (1997) 3 SCC 261

(B) T. Sudhakar Prasad (supra)

(c)
Delhi
Judicial
Service
Association, Tis Hazari Court, Delhi vs.
7 All. Pankaj Dhar Dubey Vs. U.O.I. & Ors.
679
State of Gujarat and Others (1991) 4
SCC 406

(D) Sujitendra Nath Singh Roy
vs. State of West Bengal, 2015 AIR SCW
1833

16. Sri Tiwari, learned counsel for the
petitioner has sought to argue that in view
of the mandate as contained in the
judgment of L. Chandra Kumar (supra),
this Court in exercise of jurisdiction as
envisaged under Article 226/227 of the
Constitution of India can entertain not only
the writ petition so preferred against the
order passed by the Central Administrative
Tribunal under Section 17 of the Central
Administrative Tribunal Act, 1985 but also
punish the contemnors in that regard.
According to Sri Tiwari, learned counsel
for the petitioner the plenary powers so
attached to Article 226 of the Constitution
of India nowhere puts any embargo or
restricts the scope of Article 226 of the
Constitution of India so as to denude itself
from examining the validity of an order
passed by the Central Administrative
Tribunal when the Central Administrative
Tribunal abstains itself from exercising the
powers as conferred under Section 17 of
the Administrative Tribunal Act, 1985. Sri
Tiwari has further argued that the power so
conferred under Article 226/227 of the
Constitution of India cannot be negated or
circumscribed even by a constitutional
amendment as the High Court in exercise
of the jurisdiction under Article 226/227 of
the Constitution of India can eliminate the
contingency of any injustice/illegality so
sought to be committed therein and the
power of judicial superintendence is always
available with it.

17. Sri Tiwari, learned counsel for the
petitioner has further drawn the attention of
the Court towards the judgment of T.
Sudhakar Prasad (supra) so as to further
contend that in the matter of exercise of
contempt
jurisdiction,
if
any
material
irregularity is being committed by the Central
Administrative Tribunal then it can be always
put to naught and the same can obviously be
rectified at the stage of the proceedings under
Article 226/227 of the Constitution of India.
In nutshell, the submission of the learned
counsel for the petitioner is to the extent that
the writ petition is maintainable before this
Court in case of any order so passed by the
Central Administrative Tribunal denuding the
exercise of contempt jurisdiction.

18. Sri Vivek Kumar Singh, learned
counsel for the Union of India has argued that
now
the
issue
with
regard
to
the
maintainability of the proceedings under
Article 226/227 of the Constitution of India
against the orders discharging the contemnors
and not proceeding against them is no more
res integra as in view of the judgments of the
Hon'ble Apex Court in T. Sudhakar Prasad
(supra) as well as in the case of Dr. P.V.
Jaganmohan (supra) and Dr. Harish
Kumar (supra), the writ petition does not lie
before this Court against the order whereby
notices are discharged and the contempt
proceedings are dropped by the Central
Administrative Tribunal.

19. We have carefully considered the
submissions so made by the learned
counsel for the parties and have perused the
records and we find that the present case
does not necessitate the occasion to seek
response from the respondents and with the
consent of the learned counsel for the
parties the present petition is being decided
accordingly.

20. The Parliament of India in
exercise of powers so conferred therein in
680 INDIAN LAW REPORTS ALLAHABAD SERIES
order to provide for the adjudication or trial
by administrative tribunals of disputes and
complaints with respect to recruitment and
conditions of service of persons appointed
to public services and posts in connection
with affairs of 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
or society owned or controlled by the
Government in pursuance of Article 323-A
of the Constitution] and for matters
connected therewith or incidental thereto
enacted
an
Act
by
the
name
and
nomenclature
of
the
Administrative
Tribunals Act, 1985. Section 17 which
deals with the provisions pertaining to
contempt which is being quoted in
extenso:-

"17.
Power
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 AdvocateGeneral 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."

21. As a matter of fact the Parliament
has also enacted an Act by the name and
nomenclature of the Contempt of Courts
Act, 1971, which also contains various
provisions pertaining to initiation of
contempt proceedings and culminating
them to its terminus point. The issue with
regard to the different facet of the Central
Administrative Tribunal Act, qua its
establishment,
constitution
and
its
jurisdiction was subject matter of challenge
before the Hon'ble Apex Court in the case
of L. Chandra Kumar (supra) wherein the
Constitution Bench of the Hon'ble Apex
Court in paragraph nos.90, 93, 94, 95, 96,
97, 98 and 99 has observed as under:-

"90. We may first address the
issue of exclusion of the power of judicial
review of the High Courts. We have
already held that in respect of the power of
judicial review, the jurisdiction of the High
Courts under Article 226/227 cannot
wholly be excluded. It has been contended
before us that the Tribunals should not be
allowed to adjudicate upon matters where
the vires of legislations is questioned, and
that they should restrict themselves to
handling matters where constitutional
issues are not raised. We cannot bring
ourselves to agree to this proposition as
that may result in splitting up proceedings
and may cause avoidable delay. If such a
view were to be adopted, it would be open
for litigants to raise constitutional issues,
many of which may be quite frivolous, to
directly approach the High Courts and thus
subvert the jurisdiction of the Tribunals.
Moreover, even in these special branches
of law, some areas do involve the
7 All. Pankaj Dhar Dubey Vs. U.O.I. & Ors.
681
consideration of constitutional questions on
a regular basis; for instance, in service law
matters, a large majority of cases involve
an interpretation of Articles 14, 15 and 16
of the Constitution. To hold that the
Tribunals have no power to handle matters
involving constitutional issues would not
serve the purpose for which they were
constituted. On the other hand, to hold that
all such decisions will be subject to the
jurisdiction of the High Courts under
Articles 226/227 of the Constitution before
a Division Bench of the High Court within
whose territorial jurisdiction the Tribunal
concerned falls will serve two purposes.
While saving the power of judicial review
of legislative action vested in the High
Courts
under Article
226/227 of
the
Constitution, it will ensure that frivolous
claims are filtered out through the process
of adjudication in the Tribunal. The High
Court will also have the benefit of a
reasoned decision on merits which will be
of use to it in finally deciding the matter.

93. Before moving on to other
aspects,
we
may
summarise
our
conclusions on the jurisdictional powers of
these
Tribunals.
The
Tribunals
are
competent to hear matters where the vires
of statutory provisions are questioned.
However, in discharging this duty, they
cannot act as substitutes for the High
Courts and the Supreme Court which have,
under our constitutional setup, been
specifically
entrusted
with
such
an
obligation. Their function in this respect is
only supplementary and all such decisions
of the Tribunals will be subject to scrutiny
before a Division Bench of the respective
High
Courts.
The
Tribunals
will
consequently also have the power to test
the vires of subordinate legislations and
rules. However, this power of the Tribunals
will be subject to one important exception.
The Tribunals shall not entertain any
question regarding the vires of their parent
statutes following the settled principle that
a Tribunal which is a creature of an Act
cannot declare that very Act to be
unconstitutional. In such cases alone, the
concerned High Court may be approached
directly. All other decisions of these
Tribunals, rendered in cases that they are
specifically empowered to adjudicate upon
by virtue of their parent statutes, will also
be subject to scrutiny before a Division
Bench of their respective High Courts. We
may add that the Tribunals will, however,
continue to act as the only courts of first
instance in respect of the areas of law for
which they have been constituted. By this,
we mean that it will not be open for
litigants to directly approach the High
Courts even in cases where they question
the vires of statutory legislations (except,
as mentioned, where the legislation which
creates
the
particular
Tribunal
is
challenged) by overlooking the jurisdiction
of the concerned Tribunal.

94. The directions issued by us in
respect
of
making
the
decisions
of
Tribunals amenable to scrutiny before a
Division Bench of the respective High
Courts will, however, come into effect
prospectively i.e. will apply to decisions
rendered
hereafter.
To
maintain
the
sanctity of judicial proceedings, we have
invoked the doctrine of prospective overruling so as not to disturb the procedure in
relation to decisions already rendered.

95. We are also required to
address the issue of the competence of
those who man the Tribunals and the
question
of
who
is
to
exercise
administrative supervision over them. It
has been urged that only those who have
had
judicial
experience
should
be
682 INDIAN LAW REPORTS ALLAHABAD SERIES
appointed to such Tribunals. In the case of
Administrative Tribunals, it has been
pointed
out
that
the
administrative
members who have been appointed have
little or no experience in adjudicating such
disputes; the Malimath Committee has
noted that at times, IPS Officers have been
appointed to these Tribunals. It is stated
that in the short tenures that these
Administrative
Members
are
on
the
Tribunal, they are unable to attain enough
experience in adjudication and in cases
where they do acquire the ability, it is
invariably on the eve of the expiry of their
tenures. For these reasons, it has been
urged
that
the
appointment
of
Administrative Members to Administrative
Tribunals be stopped. We find it difficult to
accept such a contention. It must be
remembered that the setting-up of these
Tribunals is founded on the premise that
specialist bodies comprising both trained
administrators and those with judicial
experience would, by virtue of their
specialised knowledge, be better equipped
to dispense speedy and efficient justice. It
was expected that a judicious mix of
judicial members and those with grass-
roots experience would best serve this
purpose. To hold that the Tribunal should
consist only of judicial members would
attack the primary basis of the theory
pursuant
to
which
they
have
been
constituted. Since the Selection Committee
is now headed by a Judge of the Supreme
Court, nominated by the Chief Justice of
India, we have reason to believe that the
Committee would take care to ensure that
administrative members are chosen from
amongst those who have some background
to deal with such cases.

96. It has been brought to our
notice that one reason why these Tribunals
have been functioning inefficiently is
because there is no authority charged with
supervising
and
fulfilling
their
administrative requirements. To this end, it
is suggested that the Tribunals be made
subject to the supervisory jurisdiction of
the High Courts within whose territorial
jurisdiction they fall. We are, however, of
the view that this may not be the best way
of solving the problem. We do not think that
our constitutional scheme requires that all
adjudicatory bodies which fall within the
territorial jurisdiction of the High Courts
should be subject to their supervisory
jurisdiction. If the idea is to divest the High
Courts of their onerous burdens, then
adding to their supervisory functions
cannot, in any manner, be of assistance to
them. The situation at present is that
different
Tribunals
constituted
under
different enactments are administered by
different administrative departments of the
Central and the State Governments. The
problem is compounded by the fact that
some Tribunals have been created pursuant
to Central Legislations and some others
have been created by State Legislations.
However, even in the case of Tribunals
created by Parliamentary legislations,
there is no uniformity in administration. We
are of the view that, until a wholly
independent agency for the administration
of all such Tribunals can be set-up, it is
desirable that all such Tribunals should be,
as far as possible, under a single nodal
Ministry which will be in a position to
oversee the working of these Tribunals. For
a number of reasons that Ministry should
appropriately be the Ministry of Law. It
would be open for the Ministry, in its turn,
to appoint an independent supervisory body
to oversee the working of the Tribunals.
This will ensure that if the President or
Chairperson of the Tribunal is for some
reason unable to take sufficient interest in
the working of the Tribunal, the entire
7 All. Pankaj Dhar Dubey Vs. U.O.I.