Sudhir Kumar Das vs Sanjay Kumar Mahani, General Manager, South Eastern Railway, Garden Reach, Kolkata- 43 & Ors

Sunil Kumar Sinha, Member A

This Contempt Petition was preferred on 08.11.2019 by applicant of OA No. 167//2017 for alleged disobedience and disreggard to the Tribunal’s order andd direction passed in the OA on 10.05.2019.

Pleaadings 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 stipuulated 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 alterrnative Group ‘C’post considering thhat his initial appointment in Group ‘C’poost but was illegally adjusted in grade ‘D’post i.e. in the below grade.

D) The Respondents be directed to recoonsider the case of this petitioner for alterrnative group ‘C’ post i.e. the same grade in pursuance to the Railway Circuular dated 26.10.1962 and Est. Srl. No. 215 of 99.

E) The Respondents be directed at leeast to consider the posting of this petittioner in other department viz Elec./Mech/Clerical post where there is at leastt 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 prommotion.

G) Any other relief or reliefs for which thhis applicant is entitled to.”

Afteer hearing the rival counsel, this Tribunal passed order on 10.05.2019 which reads as under:-

“ The case of the applicant is thaat he was selected by the RRB for appoointment as Skilled Artisan, a Group ‘C’ post, in the year 1996. However,, becaause he did not qualify the fitness test, on medical ground, he was not appoointed in that category. Later on, he was adjusted on Group ‘D’ post as malaaria Khalasi in the year 2000. Though he has filed repeated representations but the respondents autthority has not considered the same. He fiiled an OA (No. 185 of 2014) before this Tribunal, which he was permitted to withdraw in order to submit a reppresentation before the competent authhority. Following this, he made a reepresentation dated 23.05.2016 and anotther on 26.01.2017 but no orders were passed on this. After so many years, he has been brought under Groupp ‘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 Railwayy Department Circular (Establishment Seriaal No. 215/99) dated 06.09.1999 at Annexure A/11) wherein Generall Man agers are empowered to consider request of “……. Candidates of non-technical categories also, who fail in prrescribed medical examination after empanelment by RRB, for their appointmment in alternative category, subject to fuulfillment of the prescribed medicall standard, educational requirement and other eligibility criteria for the same grade post in alternative category.”

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 Depaartment such as in Electrical/Mechannical or clerical post where there is a channce for promotion.

“3. Heard the parties. It is clear from the rules stated above, the applicant shouuld have been considered for Group ‘C’ post but it seems that it was not donee. Since the cause of action arose in the year 2000, it is clearly too late to raisee the claim now. His repeated representations (or the OA filed earlier) do not, ipso, factor, increase the period of limitation. Hence, his request for conssidering him in Group ‘C’ category sinnce the initial appointment cannot be granted. How, he is already in Group ‘C’ but he is continuing the same work of Malaaria Khalasi for which he was initially engaged. Hence, his request for posting in other division/area of work apppears to be reasonable.

We requested from the counsel for the respondents to check it from the respondent Department whether itt was possible for them to post the appplicant in any other filed of work? Learned counsel for respondents after checking it with them and getting instructions submits that such transfer is possible.

Under the circumstances, we direect the respondent no. 4 to consider the posting of applicant in other deparrtment viz. Elec./Mech/Clerical post,, takiing into account the qualifications, medical fitness and other relevant con sideration for such posting.

The case is disposed of with abovee direction. No costs.”

Afteer disposal of the OA, applicantt communicated on 20.05.2019 the Tribunal’s decision to the responddent authorities requesting to implement the order passed by the Tribbunal which was forwarded to CMS, Jammshedpur and to Sr. DPO, Chhakradharpur. On 13.08.2019, applicant received a communication from Sr. DPO, Chakradharpur Division directing/advising him to re-submit the application for transfer in prescribbed form through the cadre coontrolling authority under Rule 231 of the IREC Vol. I. In response to that communication, applicant made a deetailed representation highlightiing the direction of the Tribunall to responndents to consider his postinng 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 transsfer/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 respondennt no. 2 were filed on 19.02.20220 and 21.01.2020 respectively. Further, supplementary reply to show cauuse was filed by respondent no.2 and 3 on 16.11.2022 and respondent no. 1 on 13.12.2022. In the suppleme ntary show cause reply filed by respondent no. 2 it was mentionedd that the office of Sr. DPO, Chakradharpur on 29.11.2022 issued orrder of applicant’s transfer from the office of Medicall Superintenndent, Jamshedpur to Kharagppur in Mechanical department against Dirrect Recruitment Quota on botttom seniority.

In thhe 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 Arrtisan, a Group ‘C’ post in year 1996 but as he could not clear the medical fitness test for the post of Skilled Arttisan he was adjusted as Malarria 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 withdrawnn with liberty to submit representation before the competent authority. Applicant preferred representtation 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 annd during the hearing of the OA L/c for applicant requested to consider his posting in other department viz. Electriic/Mechanical/Clerical where thhere is a chance for promotion. Before deciding the OA the Tribunal had directed to the respondents to ascertain from the respondents department whether it was possible for them to post the applicant in any other fieeld and counsel for respondents after gettiing 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 postting.

L/c for applicant submitted that the respondents department rather thaan 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 froom the office of Medicall Superintenndent, Tatanagar to the Mechaanical department as Group ‘C’’ Artisan unnder Kharagpur Division of SER against direct recruitment quota on bottomm 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 chargge against the respondents for willfully diisobeying the direction of the Tribunal and hold the contempt proceedings.

L/c for respondents Shri Rajendra Krishna submitted that there was no dissobedience of the Tribunal’s ordder by the respondents and the respondennts had complied with the Tribunal’s direction in toto. He drew attention to para-5 of the order in OA in which respondent no. 4 was directed to consider the posting of appliicant in other departments viz. Electrical/Mechanical/Clerical. The appllicant 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, thee 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 transfferred to Mechanical departmennt in Kharagpur Division against direct recrruitment quota on bottom seniority. He submitted that there was no diisobedience on the part of respondents. The Tribunal’s order has been complied with and the Tribunnal may condone the delay in compliance of its order.

Considered the submissions and m aterial on record. The scope of contempt is limited to willful disobediencce of direction/order passed by the Court/Tribunal. In the instant case, the Tribunal had directed the respondennt 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 departmentt viz. Elec./Mech/Clerical post, taking into account the qualifications, medical fitness and other relevant conssideration for such posting.”

The respondents have transferred the applicant vide order dated 29.11.2022 the last para of which reads as under:-

“ Suubsequently, based on the decision taken by the AGM/SER, the competent authhority, i.e. DRM/CKP has decided too transfer the applicant Shri Sudhir Kumar Das, S/o Sri Ballnath Das, Maalaria Khalasi under Chief Medicall Supeerintendent, Tatanagar from Medicall department and post him as Gr. IIII Artissan having Cey One Medical classification at KGPW in Mechanicall depaartment under CWM/KGPW against Direct Recruitment Quota on bottom senioority.”

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 medica l classification against direct recruitment quota. Counsel for applicant has contended that during hearing off the OA, applicant had prayedd for transfer to a department where theere 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 Tribunnal’s order.

The Tribunal’s order in OA No. 1667/2017 was “ to consider the posting off applicant in other departmennt viz. Elec./Mech/Clerical post,, taking intoo account the qualifications, meedical fitness and other relevant considerattion for such posting”. There is no specific direction in the order as stated by L/c for applicant. Subbmissions of the counsel during hearing caannot be treated as part of the o rder.

Takiing the entirety of facts as discussed above, we are of the consideredd view that respondents have complied with the direction of the Tribunnal. No time limit was given in the order however six months is consideredd a reasonable time to comply with the order. There has been some delay in passing the order which has been explained by the respondennts in the reply. We are also awaare of the nationwide lockdown due to Coovid-19 in 2020-21. Accepting the respondents’ reply to the show causse notice, we are of the view thaat there was no disobedience of the Tribunnal’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.