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Judgment
O R D E R
Per S.K. Sinha, A.M:- This Contempt Petition was preferred on 08.11.2019 by applicant of OA No. 167/2017 for alleged disobedience and disregard to the Tribunal’s order and direction passed in the OA on 10.05.2019.
Pleadings in the CCPA reveal that OA 167/2017 was preferred praying for following reliefs:-
“A) The Respondents be directed not to sit tight over the matter and to pass the final order on his representation/Appeal dated 26.01.2017 within a stipulated period.
B) The Respondents be directed not to discriminate the petitioner and to adjust him in any Group ‘C’post for which medical fitness of Cey one or Cey two is required.
C) The Respondents be directed to adjust the petitioner against any alternative Group ‘C’post considering that his initial appointment in Group ‘C’post but was illegally adjusted in grade ‘D’post i.e. in the below grade.
D) The Respondents be directed to reconsider the case of this petitioner for Patna alternative group ‘C’ post i.e. the same grade in pursuance to the Railway Circular dated 26.10.1962 and Est. Srl. No. 215 of 99.
E) The Respondents be directed at least to consider the posting of this petitioner in other department viz Elec./Mech/Clerical post where there is at least a chance for promotion.
F) The Respondents be directed not to give effect to the rejection order dated 12.09.2013 and to reconsider his case for her adjustment against any such post where there is a scope for promotion.
G) Any other relief or reliefs for which this applicant is entitled to.”
After hearing the rival counsel, this Tribunal passed order on 10.05.2019 which reads as under:-
“ The case of the applicant is that he was selected by the RRB for appointment as Skilled Artisan, a Group ‘C’ post, in the year 1996. However, because he did not qualify the fitness test, on medical ground, he was not appointed in that category. Later on, he was adjusted on Group ‘D’ post as malaria Khalasi in the year 2000. Though he has filed repeated representations but the respondents authority has not considered the same. He filed an OA (No. 185 of 2014) before this Tribunal, which he was permitted to withdraw in order to submit a representation before the competent authority. Following this, he made a representation dated 23.05.2016 and another on 26.01.2017 but no orders were passed on this. After so many years, he has been brought under Group ‘C’ (on merger of Group ‘D’ posts with Group ‘C’) but is still continuing in the said position as Malaria Khalasi. The applicant has prayed for giving him the benefit of Group ‘C’ post from the date he was recruited, as per the Railway Department Circular (Establishment Serial No. 215/99) dated 06.09.1999 at Annexure A/11) wherein General Managers are empowered to consider request of “……. Candidates of non-technical categories also, who fail in prescribed medical examination after empanelment by RRB, for their appointment in alternative category, subject to fulfillment of the prescribed medical standard, educational requirement and other eligibility criteria for the same grade post in alternative category.”
2.The applicant has also requested that in case that was not possible, the respondents should at least consider the posting of the applicant in other Department such as in Electrical/Mechanical or clerical post where there is a chance for promotion.
“3.Heard the parties. It is clear from the rules stated above, the applicant should have been considered for Group ‘C’ post but it seems that it was not done. Since the cause of action arose in the year 2000, it is clearly too late to raise the claim now. His repeated representations (or the OA filed earlier) do not, ipso, factor, increase the period of limitation. Hence, his request for considering him in Group ‘C’ category since the initial appointment cannot be Patna granted. How, he is already in Group ‘C’ but he is continuing the same work of Bench Malaria Khalasi for which he was initially engaged. Hence, his request for posting in other division/area of work appears to be reasonable.
4.We requested from the counsel for the respondents to check it from the respondent Department whether it was possible for them to post the applicant in any other filed of work? Learned counsel for respondents after checking it with them and getting instructions submits that such transfer is possible.
5.Under the circumstances, we direct the respondent no. 4 to consider the posting of applicant in other department viz. Elec./Mech/Clerical post, taking into account the qualifications, medical fitness and other relevant consideration for such posting.
6.The case is disposed of with above direction. No costs.”
After disposal of the OA, applicant communicated on 20.05.2019 the Tribunal’s decision to the respondent authorities requesting to implement the order passed by the Tribunal which was forwarded to CMS, Jamshedpur and to Sr. DPO, Chakradharpur. On 13.08.2019, applicant received a communication from Sr. DPO, Chakradharpur Division directing/advising him to re-submit the application for transfer in prescribed form through the cadre controlling authority under Rule 231 of the IREC Vol. I. In response to that communication, applicant made a detailed representation highlighting the direction of the Tribunal to respondents to consider his posting in other department with Electrical/Mechanical/Clerical taking into account his qualification, medical fitness and other relevant consideration. The respondent authority did not issue any order of transfer/posting of the applicant till 08.11.2019 and hence, the CCPA .
Notice in the contempt petition was issued on 21.11.2019 and separate replies to show cause notice on behalf of respondent no. 1 and respondent no. 2 were filed on 19.02.2020 and 21.01.2020 respectively. Bench Further, supplementary reply to show cause was filed by respondent no. 2 and 3 on 16.11.2022 and respondent no. 1 on 13.12.2022. In the supplementary show cause reply filed by respondent no. 2 it was mentioned that the office of Sr. DPO, Chakradharpur on 29.11.2022 issued order of applicant’s transfer from the office of Medical Superintendent, Jamshedpur to Kharagpur in Mechanical department against Direct Recruitment Quota on bottom seniority.
In the aforesaid background the CCPA was heard on 19.07.2023 on the point whether a prima facie case for framing of charge was made out or not in the CP.
Mrs. M.M. Pal, Sr. Advocate submitted that applicant was selected by the RRB for appointment as Skilled Artisan, a Group ‘C’ post in year 1996 but as he could not clear the medical fitness test for the post of Skilled Artisan he was adjusted as Malaria Khalasi, a Group ‘D’ post in year 2000. The applicant continued to serve as Malaria Khalasi, a Group ‘D’ post and later, preferred OA No. 185/2014 which was allowed to be withdrawn with liberty to submit representation before the competent authority. Applicant preferred representation on 23.05.2016 and again 26.01.2017 but the respondent authorities did not pass any order. The applicant then preferred OA 167/2017 and during the hearing of the OA L/c for applicant requested to consider his posting in other department viz. Electric/Mechanical/Clerical where there is a chance for promotion. Before deciding the OA the Tribunal had directed to the respondents to Patna ascertain from the respondents department whether it was possible for them to post the applicant in any other field and counsel for respondents after getting instructions, had submitted that transfer was possible. The Tribunal taking the entirety of facts directed respondent no. 4 to consider the posting of applicant in other department viz. Electrical/Mechanical/Clerical as per his qualification, medical fitness and other relevant consideration for such posting.
L/c for applicant submitted that the respondents department rather than complying with the direction of the Tribunal directed the applicant to submit his request for transfer in prescribed format. Further, they have passed the order on 29.11.2022 in which the applicant has been transferred from the office of Medical Superintendent, Tatanagar to the Mechanical department as Group ‘C’ Artisan under Kharagpur Division of SER against direct recruitment quota on bottom seniority. As the applicant had not made any request for transfer, transferring him from Tatanagar to Kharagpur on bottom seniority was against the rules and also disobedience of the order of the Tribunal. L/c requested to frame charge against the respondents for willfully disobeying the direction of the Tribunal and hold the contempt proceedings.
L/c for respondents Shri Rajendra Krishna submitted that there was no disobedience of the Tribunal’s order by the respondents and the respondents had complied with the Tribunal’s direction in toto. He drew Bench attention to para-5 of the order in OA in which respondent no. 4 was directed to consider the posting of applicant in other departments viz. Electrical/Mechanical/Clerical. The applicant had preferred OA No. 167/2017 against his continuation as Malaria Khalasi, a Group ‘D’ post in Medical department. After the 7th Pay Commission all posts of Group ‘D’ were merged into Group ‘C’ and hence the post of Malaria Khalasi also became a Group ‘C’ post. However, the applicant wanted his transfer from the post of Malaria Khalasi to some other department, viz. Electrical/Mechanical/Clerical. In terms of the prayer in OA, applicant was transferred to Mechanical department in Kharagpur Division against direct recruitment quota on bottom seniority. He submitted that there was no disobedience on the part of respondents. The Tribunal’s order has been complied with and the Tribunal may condone the delay in compliance of its order.
Considered the submissions and material on record. The scope of contempt is limited to willful disobedience of direction/order passed by the Court/Tribunal. In the instant case, the Tribunal had directed the respondent no. 4 to consider the posting of applicant in other department. Para-5 of the order is reproduced below for ready reference:-
“5.Under the circumstances, we direct the respondent no. 4 to consider the posting of applicant in other department viz. Elec./Mech/Clerical post, taking into account the qualifications, medical fitness and other relevant consideration for such posting.”
The respondents have transferred the applicant vide order dated 29.11.2022 the last para of which reads as under:-
“ Subsequently, based on the decision taken by the AGM/SER, the competent authority, i.e. DRM/CKP has decided to transfer the applicant Shri Sudhir Kumar Das, S/o Sri Ballnath Das, Malaria Khalasi under Chief Medical Superintendent, Tatanagar from Medical department and post him as Gr. III Artisan having Cey One Medical classification at KGPW in Mechanical department under CWM/KGPW against Direct Recruitment Quota on bottom seniority.”
It is evident from above that the respondent authority has transferred the applicant to Mechanical Department and posted him as Group ‘C’ Artisan having C-1 medical classification against direct recruitment quota. Counsel for applicant has contended that during hearing of the OA, applicant had prayed for transfer to a department where there was scope of promotion and the Tribunal had disposed of the OA considering the applicant’s prayer but respondents have transferred applicant on bottom seniority which was a disobedience of the Tribunal’s order.
The Tribunal’s order in OA No. 167/2017 was “ to consider the posting of applicant in other department viz. Elec./Mech/Clerical post, taking into account the qualifications, medical fitness and other relevant consideration for such posting”. There is no specific direction in the order as stated by L/c for applicant. Submissions of the counsel during hearing cannot be treated as part of the order.
Taking the entirety of facts as discussed above, we are of the considered view that respondents have complied with the direction of Bench the Tribunal. No time limit was given in the order however six months is considered a reasonable time to comply with the order. There has been some delay in passing the order which has been explained by the respondents in the reply. We are also aware of the nationwide lockdown due to Covid-19 in 2020-21. Accepting the respondents’ reply to the show cause notice, we are of the view that there was no disobedience of the Tribunal’s order by respondents far less a willful one. Accordingly, the CCPA is dropped and the notice to respondents stands discharged. Pending MA, if any also stands disposed of.