Gujarat High Court
Girishchandra R. Bhatt And Anr. vs Dineshbhai N. Sanghvi, Principal, ... on 18 December, 1995
Equivalent citations: (1996)1GLR812
JUDGMENT S.M. Soni, J.
1. Petitioners, Party-in-Person, have prayed for taking necessary action under Section 10 of the Contempt of Courts Act against the respondents for alleged deliberate and wilful non-compliance of the order of the Gujarat Primary Education Tribunal ('the Tribunal' for short), confirmed by the High Court.
2. Few facts necessary to appreciate the contentions raised are as under:
One Sanghvi Education Trust, of which respondent No. 2 is the Managing Trustee, is running Sanghvi Primary School, of which respondent No. 1 is the Principal. Principal and Managing Trustee is the same person, viz. Mr. Dineshbhai N. Sanghvi. Respondent No. 3 is the District Education Officer for the city of Ahmedabad. Petitioners Nos. 1 and 2 are serving in the said school as Assistant Teachers. Said school is a recognised one under the Bombay Primary Education Act, 1947. The management of the said school is liable to pay salary to its teachers, as per the pay and allowances declared for them by the State Government. As the management was not paying the pay and allowances as per one declared by the State Government, the petitioners had filed an application before 'the Tribunal' and ultimately the Tribunal passed an award to the following effect, when translated:
In the result, the application No. 171 of 1991 of the applicants is allowed. Opponent - school is directed to pay difference of salary with necessary increments in the pay-scale of Rs. 1200-2040 as per the resolution dated 25-9-1987 and arrears of salary due to them till date and go on paying regularly pay and allowances by account payee cheque between 1st and 10th of every months.
3. This order of the Tribunal came to be challenged by the respondent Nos. 1 and 2 by way of writ petition, being Spl. Civil Application No. 11767 of 1994 before this Court. However, the same came to be rejected on 8-3-1995 by this Court (Coram: H.L. Gokhale, J.). Prior to the dismissal of the petition, the present application for contempt was filed and was pending. Respondent Nos. 1 and 2, when prayed for stay of that order of this Court, it was agreed by the petitioners that they will not press their contempt application for three weeks. Thereafter, this application has come up for hearing.
4. This case has a chequered history of litigation. Prior to the impugned order, the Tribunal twice decided the matter twice ex-parte and this Court (Coram: S.M. Soni, J.) in the interest of administration of justice remanded prescribing time bound schedule to dispose it of. We do not think it necessary to refer to the same in detail for the purpose of this contempt application.
5. On the notice of the contempt application being served, the respondents Nos. 1 and 2 appeared through Advocate Mr. S.M. Shah and respondent No. 3 is represented by learned Additional Advocate General S.N. Shelat. Initially, time was sought on the ground that the respondent Nos. 1 and 2 intend to file L.P.A. against the order of the learned single Judge of this Court, but in the last, after repeated adjournments, it was brought to the notice of this Court that the same came to be dismissed on 13/14-9-1995 and hence this matter then proceeded further.
6. It will be pertinent to state at this juncture that learned Advocate for the respondent Nos. 1 and 2 has stated that they intend to move Hon'ble Supreme Court by way of Special Leave Petition. However, they have not received the certified copy of the judgment. Be that as it may, it will be relevant to state that order of the Tribunal is confirmed by the learned single Judge as well as Division Bench of this Court in L.P.A. Therefore, so far as this High Court is concerned, this order has become final.
7. From the record, it transpires that no affidavit-in-reply is filed by the respondents. It was made clear that respondent No. 3 being a necessary and formal party is joined as party-respondent, but has to do nothing towards compliance of the award of the Tribunal. So, we shall refer to respondent Nos. 1 and 2 as the respondents and when necessary to refer to respondent No. 3 as respondent No. 3.
8. Learned Counsel Mr. Shah appearing for the respondents has tried to defend the action under the Contempt of Courts Act, raising following contentions, namely:
(1) The Tribunal is not a Court subordinate to High Court, for whose contempt the High Court has power to punish under Section 10 of the Contempt of Courts Act;
(2) The award is an executable one inasmuch as Code of Civil Procedure is applicable in view of Clause 14 of the Gujarat Primary Education Tribunal (Procedure) Order, 1987, made in exercise of the powers conferred by Sub-section (5) of Section 40-F of the Bombay Primary Education Act, 1947;
(3) The application is barred under Section 20 of the Contempt of Courts Act, as the proceedings are initiated after the expiry of one year from the date of the order;
(4) Even if the alleged act of non-compliance of the award is an act of contempt, then the same is neither wilful nor deliberate as required under Clause (b) of Section 2 of the Contempt of Courts Act;
(5) If the contention that the Code of Civil Procedure is applicable is not accepted, then the action under the Act as initiated by the petitioner is bad, inasmuch it contravenes the provisions of Article 14 of the Constitution of India; and (6) The petition is not supported by any affidavit and the same being in contravention of the Rules framed by this Court under the Contempt of Courts Act, the petition cannot be entertained.
9. In view of the fact that there being no specific provision to execute the awards of the Tribunal not only under the Gujarat Primary Education Act, but also qua other Tribunals constituted for educational institutions, the teachers have been facing enormous difficulty and hardship to enforce the awards. They, therefore, to enforce the same initiate action under Contempt of Courts Act. It was, therefore, thought proper to hear all concerned on the question whether Code of Civil Procedure would be applicable in view of Clause 14 of the Order referred hereinafter and similar provision for other Tribunals constituted for other educational institutions, as contended by the Learned Counsel for the respondents and notice was ordered to issue. In response to the notice, number of Advocates assisted the Court as Interveners for and against the point raised.
10. We will first deal with the contention whether the Tribunal is a Court subordinate to High Court as contemplated under Section 10 of the Contempt of Courts Act. Learned Counsel Mr. Shah, to substantiate his arguments, has relied on a judgment in the case of the Alahar Co-operative Credit Service Society v. Shyam Lal, [1995 (2) GLH 550 (SC)]. In the said judgment, paragraph 4 reads as under:
4. The Labour Court is not a Court subordinate to the High Court in the sense the Contempt of Courts Act makes provision requiring the High Court to deal with contempt of its subordinate Courts: therefore, the High Court should have looked into that aspect before entertaining the contempt proceedings for non-compliance of the direction of the Labour Court. Contempt proceedings are again not intended to be a substitute of the execution process, and, therefore, care should have been taken before entertaining the contempt petition to examine the maintainability of such action.
Mr. Shah, therefore, contended that the Primary Education Tribunal is not a Court subordinate to the High Court and the action under the Contempt of Courts Act is not maintainable. Mr. Shah further contended that the direct judgment of this Court that the Education Tribunal is a Court subordinate to High Court is now not a good law in view of Alahar's case (supra) and this Court should refer this issue to a larger Bench if the Court feels that the judgment of Division Bench though of a binding nature, cannot be relied.
11. In Alahar's case, we do not find any reasons for holding Labour Court to be not a Court subordinate to the High Court under Section 10 of the Contempt of Courts Act. The Full Bench of this Court in the case of Shaikh Mohammedbhikhan Hussainbhai v. Manager, Chandrabhanu Cinema [1986(1)] XXVII(1) GLR 1 (FB) has held that Industrial Tribunal under the Industrial Disputes Act is a Court within the meaning of Section 2 read with Section 10 of the Contempt of Courts Act. It is true that Full Bench judgment is a binding judgment, but when the Supreme Court has now held that Labour Court is not a Court subordinate to High Court within the meaning of Section 2 read with Section 10 of the Contempt of Courts Act, that judgment of the Full Bench has not remained a good law in view of the constitutional provisions of Article 141.
12. As no reasons are assigned in Alahar's case (supra) by the Supreme Court, we may venture to assign some reasons for our purpose (which we hope that the Supreme Court will excuse) to accept that judgment, which otherwise also we are bound to accept.
13. Before we appreciate the contention of Learned Counsel Mr. Shah based on Alahar's case, wherein Labour Court under the Industrial Disputes Act is held to be not a Court subordinate to the High Court as contempted under Section 10 of the Contempt of Courts Act, it may be noted that the Division Bench of this Court had decided that Secondary Education Tribunal is a Court subordinate for the purpose of exercising contempt jurisdiction under Section 10 of the Contempt of Courts Act. In the case of S.R. Patel and Ors. v. Manager, Sharda Vidyalaya and Ors., (1978) XIX GLR 751, the Division Bench, relying on the judgment in the case of Jugal Kishore v. Bitamarhi Central Co-op. Bank has observed as under:
8. In view of the aforesaid scheme, such an Education Tribunal would be clearly satisfying the settled tests of a Court as laid down by their Lordships in Jugal Kishore v. Bitamarhi Central Co-op. Bank, . There, the question had arisen before their Lordships whether the Assistant Registrar discharging functions of Registrar under the Bihar and Orissa Co-operative Societies Act was a Court so that contempt jurisdiction could be exercised. Their Lordships pointed out at page 1499 that a Registrar exercising powers under Section 48 of the Act which provided the machinery for domestic adjudication of these disputes was discharging the duties which would otherwise have fallen on the ordinary Civil and revenue Courts of the land. The Registrar had not merely the trappings of a Court, but in many respects he was given the same powers as were given to ordinary Civil Courts of the land by the Code of Civil Procedure including the power to summon and examine witnesses on oath, the power to order inspection of documents, to hear the parties after framing issues, to review his own order and even exercise the inherent jurisdiction of Courts mentioned in Section 151 of the Code of Civil Procedure. In adjudicating upon a dispute referred under Section 48 of the Act, the Registrar was to all intents and purposes a Court discharging the same functions and duties in the same manner as a Court of law was expected to do. The settled principles were followed where it had been held that in order to constitute a Court in the strict sense of the term, an essential condition was that the Court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision of a definitive judgment which had finality and authoritativeness which were the essential tests of a judicial pronouncement. Here the Registrar was to all intents and purposes, a Court, and therefore, it was held that such a Registrar deciding a co-operative reference under Section 48 was a Court. At page 1500, it was pointed out that a true judicial decision pre-supposes an existing dispute between two or more parties, and then involved four requisites: (1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal arguments by the parties; (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law. All these requisites were found present in that case because the Assistant Registrar had almost all the powers which an ordinary civil Court possessed and after considering the evidence he had to come to a conclusion on the evidence adduced and the arguments advanced. Parties could be represented even by legal practitioners. The result was the same as if a decree was pronounced by a Court of law. The adjudication was not based upon a private reference but it was his decision arrived at not in a summary manner, but with all the paraphernalia of a Court and the powers of an ordinary civil Court of the land.
(emphasis supplied)
14. There are following Education Tribunals in Gujarat State:
(1) The Gujarat Primary Education Tribunal under Chapter VII-B of the Bombay Primary Education (Gujarat Amendment) Act, 1986.
(2) The Gujarat Secondary Education Tribunal under Chapter VI in Gujarat Secondary Education Act, 1972 with Gujarat Secondary Education Tribunal (Procedure) Order, 1974.
[Under Section 40-F and Section 39 respectively of the above Acts, the Tribunals are established to resolve the disputes mentioned in Sections 40E and 38 respectively of that Acts] (3) The Gujarat Higher Secondary Schools Service Tribunal under Gujarat Higher Secondary School Services Tribunal Act, 1983 and Gujarat Higher Secondary School Services Tribunal (Procedure) Regulations, 1985 (It is not known whether the said Regulations are published or not, though the same are sent to Gujarat Government, Central Press, Gandhinagar for its publication).
(4) The Gujarat Affiliated Colleges Service Tribunal under the Gujarat Affiliated Colleges Service Tribunal Act, 1982 and Gujarat Affiliated Colleges Service Tribunal (Procedure) Regulations, 1982. This is published in Gujarat Gazette, Part 11 of 18-8-1983;
(5) The Gujarat University Service Tribunal under the Gujarat Universities Services Tribunals Act, 1983;
15. All these enactments though pertain to different Tribunals but its power and procedures are pari materia, more particularly the provisions which fall for our consideration to decide whether it is a Court or not and whether the orders that may be passed are executable, and if so, how?
16. All these Tribunals under concerned Acts fall within the trappings of the Court as held in the case of Jugal Kishore (supra). In order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement. So far as the Education Tribunals are concerned, they have power to give a decision or a definitive judgment, which had finality and authoritativeness and, therefore, they are judicial pronouncements. The question is whether the judicial pronouncements of Labour Courts under Section 7, Tribunals under Section 7-A, National Tribunals under Section 7-B of the Industrial Disputes Act, 1947, hereinafter referred to as "I.D. Act" for short, though had the trapping of a judicial Tribunal, had finality and authoritativeness? It appears that the Supreme Court had in its view this prime consideration. In view of the provisions of Section 17 and Section 17-A the pronouncements of the Labour Court, Tribunal or National Tribunal under I.D. Act had neither finality nor authoritativeness though they fall within the trappings of the Courts. The Supreme Court has held that Labour Court is not a Court subordinate to the High Court under Section 10 of the Contempt of Courts Act probably as awards of Labour Court under Section 7, Tribunals under Section 7-A and National Tribunals under Section 7-B have neither finality nor authoritativeness inasmuch as they are subject to publication by the "appropriate Government". Section 17 of the I.D. Act reads as under:
17. Publication of reports and awards - (1) Every report of a Board or Court together with any minute of dissent recorded therewith, every arbitration award and every award of a Labour Court, Tribunal or National Tribunal shall, within a period of thirty days from the date of its receipt by the appropriate Government, be published in such manner as the appropriate Government thinks fit.
(2) Subject to the provisions of Section 17-A, the award published under Sub-section (1) shall be final and shall not be called in question by any Court in any manner whatsoever.
(emphasis supplied) Any judgment delivered by a Court or a Tribunal or any judicial pronouncement by any authority becomes final and authoritative subject to appeal or revision provided under respective statute. However, the awards of the Labour Court, Industrial Tribunal or National Tribunal do not become final and authoritative on their pronouncement, but become final subject to Section 17A only on being published by the appropriate Government. Section 11-A of the I.D. Act reads as under:
17-A. Commencement of the award: (1) An award (including an arbitration award), shall become enforceable on the expiry of thirty days from the date of its publication under Section 17:
Provided that-
(a) if the appropriate Government is of opinion, in any case where the award has been given by a Labour Court or Tribunal in relation to an industrial dispute to which it is a party; or
(b) if the Central Government is of opinion, in any case, where the award has been given by a National Tribunal;
that it will be inexpedient on public grounds affecting national economy or social justice to give effect to the whole or any part of the award, the appropriate Government or as the case may be, the Central Government may, by notification in the Official Gazette, declare that the award shall not become enforceable on the expiry of the said period of thirty days.
(2) Where any declaration has been made in relation to an award under the proviso to Sub-section (1), the appropriate Government or the Central Government may, within ninety days from the date of publication of the award under Section 17, make an order rejecting or modifying the award, and shall, on the first available opportunity, lay the award together with a copy of the order before the Legislature of the State, if the order has been made by a State Government, or before Parliament, if the order has been made by the Central Government.
(3) Where any award as rejected or modified by an order made under Sub-section (2) is laid before the Legislature of a State or before Parliament, such award shall become enforceable on the expiry of fifteen days from the date on which it is so laid; and where no order under Sub-section (2) is made in pursuance of a declaration under the proviso to Sub-section (1), the award shall become enforceable on the expiry of the period of ninety days referred to in Sub-section (2).
(4) Subject to the provisions of Sub-section (1) and Sub-section (3) regarding the enforceability of an award, the award shall come into operation with effect from such date as may be specified therein, but where no date is so specified, it shall come into operation on the date when the award becomes enforceable under Sub-section (1) or Sub-section (3), as the case may be.
From the provisions of Section 17-A, it is clear that despite the judicial pronouncement by the Labour Court, Tribunal or National Tribunal, power lies with the appropriate Government to reject or modify the same. When the power is lying with the Government to reject or modify the award given by Labour Court, Tribunal or National Tribunal, it cannot be said that the award has a finality or authoritativeness. Finality and authoritativeness are the essential tests of a judicial pronouncement. In view of this fact, it appears that the Supreme Court in Alahar's case (supra) has held that Labour Court is not a Court subordinate to the High Court under Sections 2 and 10 of the Contempt of Courts Act.
17. Full Bench of this Court in the case of Mohammedbhikhan (supra) has no doubt referred to Sections 17 and 17A in the course of its judgment while considering the scheme of I.D. Act and has discussed in para 32 the contention of the learned Advocate for the respondents there on the question of effect of Section 17A. There, the Court has held:
Merely because an independent right has been reserved by the Legislature upto itself to approve modification or rejection of the award as suggested by the appropriate Government, it does not mean that the modified award in any manner ceases to be award of the concerned Tribunal. Existence of independent power of modification or rejection does not contra-indicate finality and binding nature of such award as that springs from the statutory scheme envisaged not by Sections 17A, (2) or (3) but Section 17(2) read with Section 19(6) of the Act......It must, therefore, be held that despite exercise of the statutory power in Section 17A(2) and (3) by the Parliament in a given contingency the proceedings before adjudicating authority would remain judicial proceeding subject to confirmation or approval in the limited type of cases as envisaged by Section 17A(2) and (3) and would not detract from the binding character of such decisions rendered by the Labour Court and Industrial Tribunal.
18. Now, if the award can be either rejected or modified by some authority, then it cannot be said that the award has either finality or authoritativeness and it appears that the Supreme Court while considering Alahar's case (supra) had this in mind. If we consider the award passed by the Tribunal in the instant case and the awards of the other Tribunals of educational institutions, it is clear that once the award is declared and modified by the High Court in exercise of its supervisory jurisdiction or under its original jurisdiction, it has its finality and authoritativeness. There is no agency, be it under statute, like appropriate Government intervening under the I.D. Act. We are, therefore, of the opinion that in light of this fact of interference of the appropriate Government, when the award of the Labour Court, Industrial Tribunal or National Tribunal has no finality or authoritativeness, it must have been held to be not a Court subordinate to the High Court. We, therefore, hold that the 'Tribunal' of the educational institutions are Court subordinate to the High Court and 'Tribunal' in the instant case is a Court subordinate to High Court. In this view of the matter, it is not necessary for us to refer this point to a larger Bench, We, therefore, do not deal with the authorities cited by Learned Counsel Mr. Shah to show that single Judge may refer an issue to a larger Bench, if the single Judge is not in agreement with the view taken even by the Division Bench. The authorities are:
1. 1984 GLH 1134 (Jai Ranchhod Bhogilal Sevak v. Thakorlal P. Jumkhawala)
2. AIR 1862 SC 1302 (Food Corpn. of India v. Yadav Engineer and Contractor)
3. (Lala Shri Bhagwan v. Ram Chand)
4. 1983 GLH 273 (SC) (Somabhai Mathurbhai Patel v. New Shorrock Mills.)
19. Learned Counsel Mr. Shah has also raised a contention that the petition is not maintainable inasmuch as the impugned order is executable and the contempt proceedings is not a substitute of execution. If the order is executable, the person in whose favour the order is passed should go for execution and this Court should refuse to exercise its jurisdiction under the Contempt of Courts Act.
20. In the background of this contention, the following questions should stare in the face of the teachers in whose favour an order is passed by the Tribunal:
(1) Assuming that the opposite party has committed a contempt, then by imposing the punishment be it maximum under the Contempt of Courts Act, whether the liability to satisfy the order by the contemner is discharged? If not discharged, then how the complainant would get satisfied said order?
(2) If action under the Contempt of Courts Act is the only remedy available to the complainant, then looking to the maximum punishment provided, which does not carry any stigma (being punishment under the Contempt of Courts Act), would contemner not like to be a defaulter instead of honouring the order by which heavy financial liability arises particularly in this materialistic age where money is preferred to moral?
(3) How then in such case wrong committed by the opposite party be remedied even though it may be a case where opposite party is financially sound?
(4) Would it be just and proper in the exercise of contempt jurisdiction to decide whether defaulter has sufficient means to pay or not?
(5) Can it be the intention of legislature to create a right without remedy and make a successful party helpless?
21. It may be noted that any penalty imposed under the Contempt of Courts Act, more particularly in Civil contempt, does not carry any stigma. Even punishments under Contempt of Courts Act can be ignored by authority if it deems fit. Keeping in mind all these questions, we now consider the contention raised by Learned Counsel Mr. Shah.
22. Mr. Shah, to substitute his argument, referred to Section 40-F read with Clause 14 of Gujarat Primary Education Tribunal (Procedure) Order, 1987. Mr. Shah contended that Clause 14 of the Order provides that the Tribunal shall in any manner not provided for in this Order, follow the procedure, as far as it is applicable, laid down in the Code of Civil Procedure, 1908. Mr. Shah also contended that this Order is provided in view of Sub-section (5) of Section 40-F of the Bombay Primary Education (Gujarat Amendment) Act, 1986. To substantiate his argument, he also relied on Sub-section (6) of Section 40-F of the said Act. Sub-section (5) and Sub-section (6) of Section 40-F reads as under:
40-F. (5) The Tribunal shall follow such procedure as the State Government may by general Order direct.
40-F. (6) The Tribunal shall have the same powers as are vested in a civil Court under the Code of Civil Procedure, 1908 (V of 1908), when trying a suit, in respect of the following matters, namely:
(a) enforcing the attendance of any person and examining him on oath;
(b) compelling the production of documents and material objects;
(c) issuing commissions for the examination of witnesses;
(d) such other matters as may be prescribed;
and every inquiry or investigation by the Tribunal shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code.
If one reads the whole of the Bombay Primary Education (Gujarat Amendment) Act, 1986, and in particular Chapter VII-B, which provides for procedure for imposition of penalty on teachers of recognised Private Primary schools, it only provides for the jurisdiction of the Tribunal under Section 40E and constitution of Tribunal under Section 40F. There is nothing to show in said Chapter VII-B as to how any order that may be passed by the Tribunal can be executed or enforced. Sub-section (5) of Section 40F provides for the procedure that the State Government may by general order direct and the State Government has by the Gujarat Primary Education Tribunal (Procedure) Order, 1987 provided for the procedure. The Scheme of that Procedure Order is as under.
23. Clause 1 provides for the title of the Order. Clause 2 provides for the definitions. Clause 3 provides for the place and notice of date of hearing. Clause 4 provides for the presentation of appeals and application. Clause 5 provides for registration of appeals and applications. Clause 6 provides for intimation to President and calling of record and proceedings of officer authorised under Sub-clause (a) of Sub-section (1) of Section 40B. Clause 7 provides for stay of execution of order. Clause 8 provides for notice of hearing. Clause 9 provides for procedure at the hearing. Clause 10 provides for hearing in the absence of parties. Clause 11 provides for adjournment. Clause 12 provides for pronouncement of judgment. Clause 13 provides for copies of documents on payment of fees. We are concerned with Clause 14, which provides for following provisions of Civil Procedure Code in the matters not provided in this Order.
24. Now, if we look at the scheme and the provisions made in the Order, it is clear that while providing or prescribing the procedure the State Government has provided to some extent the same procedure which the civil Court follows. It is only with a view to expedite the hearing of the matters, separate Tribunals are constituted so that the hearing need not be delayed on certain technical aspects. Clause 7 providing for stay of the execution of order is suggestive of the fact that it was in the mind of the legislature that a situation to execute orders may arise. It has appeared that there is nothing in this Procedure Order for enforcement or execution of the order that may be passed by the Tribunal. In absence of any express provision for the execution and that State Government would have thought it fit to avoid any situation that may arise because of absence of such specific provision that the Tribunal need not be without any power to enforce its own orders, Clause 14 provides to meet that exigency. Thus, what is not provided by clauses 1 to 13 is tried to be provided by Clause 14. What lacks in clauses 1 to 13 is specific provision for enforcement or execution of orders that may be passed. To make adjudication complete and effective, Clause 14 provides for application of provisions to follow the procedure of Code of Civil Procedure as far as it is applicable. This may also be read to provide for the enforcement or execution of the order as per the procedure prescribed in the Civil Procedure Code. This is how the Civil Procedure Code is brought in by Clause 14. It will be relevant to refer that where jurisdiction to adjudicate and decide rights and liabilities is conferred by a statute, power to enforce said rights and liabilities must be provided. If it is not provided specifically, it should be impliedly read in, if the same can be read from some of the provisions to make the Code or the Act complete for the purpose of determining and adjudicating finally the issue which came before the Tribunal. It can be said that if a Court has power to adjudicate, it also has power to enforce the same. Right to adjudicate would be incomplete in absence of power to execute. In the instant case, if we read Primary Education (Gujarat Amendment) Act, 1986, Chapter VII-B, and the Procedure Order, it can be said that the Tribunal is not without the power to enforce or execute the order that may be passed by it. We may pose a question whether can there be legislation adjudicating and deciding rights of the parties without any provision to enforce the same? If the legislation is not providing with a power to enforce the same, can it be said that it brings to an end the dispute between the parties? We are of the view that there can be no legislation providing adjudication and deciding the rights of the parties without any provision to enforce the same. We would like to say that it is inherent in the authority to enforce its own order, if it is authorised by the legislation to decide or adjudicate and pass the same. We are, therefore, of the opinion that in absence of any specific provision in Chapter VII-B of the Bombay Primary Education (Gujarat Amendment) Act, 1986 read with Procedure Order, 1987 for the enforcement of the rights that may be decided by the Tribunal, can there be any provisions from which we can read or spell out right to enforce the same? We are of the opinion that if Clause 14 of the Procedure Order is read with Clause (d) of Sub-section (6) of Section 40F, the only inference which can be drawn is that except the procedural aspect provided in clauses 1 to 13, rest of the Civil Procedure Code is made applicable which also includes enforcement of the right determined by the Tribunal. We mean to say that provisions of Civil Procedure Code be read in Procedure Order as if provided therein.
25. Above conclusion of ours can be tested in other form. Section 40G of the Bombay Primary Education (Gujarat Amendment) Act, 1986 bars the jurisdiction of the Civil Court. The same reads as under:
40G. Bar of jurisdiction of Courts: - (1) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Chapter required to be settled, decided or dealt with by the Tribunal.
(2) All suits and proceedings between the manager of a recognised private primary school and a teacher in service, of such school relating to disputes connected with the conditions of service of such teacher, which are pending in any Civil Court on the date of the commencement of the Bombay Primary Education (Gujarat Amendment) Ordinance, 1986 (Guj. Order 6 of 1986) shall be transferred to and continued before the Tribunal:
Provided that nothing in this section shall apply to execution proceedings and appeals arising out of decrees or orders passed by such Court before the commencement of the Bombay Primary Education (Gujarat Amendment) Ordinance, 1986 (Guj. Order 6 of 1986) and such execution proceedings and appeals shall be decided and disposed of as if the Bombay Primary Education (Gujarat Amendment) Act, 1986 had not been passed.
Sub-section (2) of Section 40G saves the proceedings, which had been initiated and pending prior to coming into operation of the Bombay Primary Education (Gujarat Amendment) Act, 1986. Prior to coming into operation of this Act, all the disputes which are referred to under Section 40E, now to be decided by the Tribunal, were decided by the ordinary civil Court under Section 9 of C.P.C. and the decision was a decree or order executable under the provisions of C.P.C. If we do not read Clause 14 to bring in provisions of C.P.C. for the purpose of execution or for whatever not provided in clauses 1 to 13, then it creates an anomaly shown hereunder. Legislature never intended to create any anomaly when they legislate any enactment. Anomaly in our opinion, would arise as under:
Sub-section (2) of Section 40G saves the proceedings which were pending before the Civil Court on the date of the commencement of the Bombay Primary Education (Gujarat Amendment) Act, 1986 and under Sub-section (2) they shall be transferred to and continued before the Tribunal. If a suit or proceeding involving the dispute one covered under Section 40E of the Act is decided by the civil Court, then it is a decree prior to the commencement of this Act and was executable under C.P.C. It would not be a decree if decided by the Tribunal under Bombay Primary Education (Gujarat Amendment) Act, 1986. Identical dispute which if came to be decided by the Tribunal or if it was before the civil Court and came to be transferred to the Tribunal and adjudicated under the Bombay Primary Education (Gujarat Amendment) Ordinance, 1986, it is not a decree and remains only an order of the Tribunal and not executable alleging absence of provision for execution, as contended by the respondents. Thus, identical issue if decided prior to the commencement of the Primary Education Act by a civil Court was executable and if came to be transferred to the Tribunal and decided by the Tribunal will not be executable. This anomaly, in our opinion, was never apprehended or thought of or intended to be created by the Legislature. It is the rule of interpretation of statutes that every statute should be interpreted to uphold its validity and not creating any anomaly. This very point can be elaborated further. There are two teachers in a school. Both are aggrieved by a particular act/order of the management, be of their dismissal, based on common ground. Both of them filed civil suit before the commencement of the Bombay Primary Education (Gujarat Amendment) Ordinance, 1986. Suit of one was decided before the commencement of this Act. For some reason, suit of another teacher could not be decided and in view of the commencement of the Bombay Primary Education (Gujarat Amendment) Ordinance 1986, the suit came to be transferred to the Tribunal. The Tribunal, after hearing the parties, decided the same and also granted identical relief like that of one granted by the civil Court. Order of the first teacher, whose matter came to be decided by the civil Court, was enforceable by way of execution under C.P.C. and the order in favour of second teacher passed by Tribunal will not be executable, as power to execute is absent as contended by the applicants. Should such anomaly continue? Is it not the duty of the Court to interprete any legislation to make it complete and logical by removing discrimination, if any, arising between two similarly situated persons? Of the two teachers why one can reap the fruits of litigation and other is deprived of saying want of procedure and power?
26. Assume that there is no provision for execution, as contended by the petitioners. Then what is the remedy for the teacher or the management in whose favour the Tribunal has decided the issue? How that relief granted to the petitioner be enforced? If we do not read the Procedure Order to cloth the Tribunal with power and procedure of C.P.C. for the purpose of execution of the order passed by the Tribunal, then only remedy available to the person in whose favour the order is passed is to move this Court by way of writ petition, praying for a writ of mandamus for enforcement of that order and/or to file a civil suit and obtain a decree in that form. In case if writ of mandamus is issued, it can be again executed as per rules like a decree. If a civil suit is filed by the party, then the very issue may arise before the civil Court, which may again be barred by provisions of Section 40G, being disputes referred to in Section 40E of the Act. Can it be said that what one cannot do directly can be got done indirectly? Civil Court if cannot decide an issue if falls within the purview of Section 40G, can it decide for enforcement of the order that is passed by the Tribunal and mandated or directed by Civil Court in a suit and is a decree? Therefore, in our opinion, the issue which cannot be decided by the civil Court also cannot be decided by that very Court indirectly under the pretext of enforcement of that order which is passed by the Tribunal. This, in our opinion, leads to only one conclusion that Clause 14 read with Clause (d) of Sub-section (6) of Section 40F provides for application of C.P.C. and the whole of C.P.C., except the provisions made in clauses 1 to 13.
27. We may test this from another angle. One of the parties before Tribunal is sick and his evidence is required to be recorded. How the Tribunal will record the evidence? Will it sit idle till the person recovers? How will it enable itself to appoint a Commissioner to record the evidence? A situation may also arise that the Tribunal is required to take certain books of accounts in its custody for some special reasons for proper adjudication of the issue that is raised before it. How the Tribunal can take such documents in its custody? Which is the provision which enables the Tribunal to do so? If the Tribunal feels that there is no such provision, would the Tribunal feel helpless and allow the course of justice to suffer? Would Tribunal exercise such powers clothing itself with procedure contemplated under Civil Procedure Code under Clause 14 of the Procedure Order, 1987? In our opinion, it is the prime duty of any statutory Tribunal discharging judicial functions to see that interest of justice may not suffer for any such reason or cause. If the Tribunal refuses to exercise any such powers, then, in our opinion, the Tribunal may be hampered to discharge its judicial function. Therefore, in our opinion, only conclusion to which we can reach is that Clause 14 brings in the order the provisions of Civil Procedure Code, 1908 except one provided in the Act and Tribunal order and in particular for execution.
28. We are supported in our view that the Tribunal has power to enforce its decision by a judgment in the case of Ex parte Martin reported in 1879 (4) Queen's Bench Division 212. In that case, an application made by the plaintiff to commit the defendant to prison for having disobeyed the injunction was refused on the ground that the Court had no jurisdiction to commit to prison for disobedience of an injunction. There, Kelly, C.B. has observed as under:
Then comes the second question, whether the Court has power to enforce the injunction by commitment to prison. If we looked only at those statutes which conferred upon county Courts express powers of commitment in particular instances, it might be said that the cases ought to be governed by the principle expressio unius exclusio alterius, but it does not rest on those enactments alone. The powers of every inferior Court have been enlarged by Section 89, and the question is whether, according to the natural interpretation of its language, that section does not confer such a power. I think it does. In what other way can a Court enforce its own order? If a Court has power to prohibit a wrong, it ought also to have power to enforce its prohibition; and it is difficult to conceive that the legislature intended to give power to grant the injunction, and yet did not intend to give the power to enforce it. It is unreasonable to suppose the power to grant injunctions was meant to be nothing but a bare power, with no means of compelling obedience. Otherwise the nuisance may be continued for ever and the plaintiff put to the necessity of bringing action after action for damages. I think it is only reasonable to interpret the words of Section 89 to mean that a county Court has the same power to commit for disobedience of an injunction as the High Court has.
Notwithstanding, therefore, my reluctance to extend the power of commitment to any Court - a reluctance which I have shown on other occasions by treating the power of the Court to commit for contempt as more limited than it was considered to be by other Judges looking at the nature of the case and the common sense of the matter, I think the county Court has jurisdiction to commit for disobedience to its own injunction, and that the rule should be made absolute.
29. Mr. H.M. Mehta, learned Senior Counsel as Intervenor has contended that the power cannot be implied. To execute the order of the Tribunal, there must be specific power either in the statute or there must be some provision from which it can be said that such power flows. It cannot be inferred. It was contended by the Senior Advocate that on reading Section 40F, power to execute its (Tribunal's) order cannot be inferred. He referred to Section 40F of the Primary Education Act, wherein, according to him, Clause (1) of Section 40F provides for function and duty of the Tribunal and Clause (6) provides for the procedure for the functioning of the Tribunal and Clause (5) provides for powers of the Tribunal. He further contended that none of these provisions can be read to read, even impliedly, that the power to execute its order is there. It will be relevant to refer to Clause (6) of Section 40F which provides that the Tribunal shall have the same powers as are vested in a civil Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the matters mentioned therein. In Clause (d), it is provided that the Tribunal shall have also powers of civil Court for such other matters as may be prescribed. Sub-section (5) of Section 40F provides that the Tribunal shall follow such procedure as the State Government may, by general order, direct and Clause 14 of the Procedure Order provides for the Tribunal to follow the procedure, as far as it is applicable, laid down in the Code of Civil Procedure, 1908. Relying on this, Mr. Mehta contended that in absence of any specific provision, power to execute cannot be implied. He also relied on a judgment in the case of Grindlays Bank v. Central Government Industrial Tribunal . There, the question was whether the Tribunal is competent to review its order. The question was whether such a power can be read in the provisions of the Industrial Disputes Act. The Supreme Court there held:
We are unable to appreciate the contention that merely because the ex-parte award was based on the statement of the manager of the appellant, the order setting aside the ex-parte award, in fact, amounts to review. The decision in Narshi Thakershi v. Pradyamansinghji, , is distinguistable. It is an authority for the proposition that the power of review is not an inherent power, it must be conferred either specifically or by necessary implication.
In our opinion, in view of the judgment of Narshi Thakershi (supra), the power to review is not an inherent power. However, in the instant case, the question is whether the Tribunal has power to execute or implement its own award. To implement one's own award, is not comparable with one to review its own award. As held earlier, it is inherent in the Court or an authority to implement its own order and, therefore, we do not find any substance in the contention of Mr. Mehta that Tribunal has no power or Clause 14 of the Procedure Order cannot be read to apply Civil Procedure Code for the purpose of execution.
30. If we accept the contention raised by Mr. Mehta, then what is the effect on the orders passed by the Tribunal? Orders passed by the Tribunal will only remain as orders on paper. Action under the Contempt of Courts Act cannot implement and execute the order. Holding non-compliance to be wilful disobedience, the Contempt Court cannot order recovery of the amount or implementation. Despite punishment for the contempt, the award remains unimplemented and an award on paper. This can never be the intention of any Legislature. No Legislature will desire to create a right, which cannot be enforced and, in our opinion, Clause 14 of Procedure Order is introduced for this very purpose when Chapter VII-B came to be introduced and the Tribunal was constituted. It appears that the authority has not availed of the provision of Clause 14 of the Procedure Order for the purpose to enforce its orders.
31. Assume that there is no provision to execute the order of the Trinunal. Most of the orders of the Tribunal, if in favour of the teachers, are in the nature of reinstatement with or without back wages or may be for difference of salary arising due to application of new scale. If in favour of the management, it may be for recovery of excess salary paid, if any. If contempt is the only remedy to enforce the order, then Contempt Court while deciding the matter may also direct the contemner to purge the contempt. If the contemner does not purge the contempt on his part, the same can be enforced through some agency, may be Police agency. Now, if the contempt is alleged for disobeying the order of reinstatement or payment of back wages or difference of salary, can Contempt Court get it enforced through any agency? Can there be forcible recovery of arrears? In our opinion, 'no'. By not complying with the order, the contemner may go on committing contempt again and again and there would be no end to this process of committing contempt repeatedly. Would it be just and proper for the Court to go on taking action for repeated contempts? In our opinion, 'no' and, therefore, there should be some provision to enforce the same. We may state that this may not be a case if a contemner is an employer like Government, semi-Government or Corporation or like run by Government.
32. Learned Advocate Dr. Sinha, an Intervenor, contended that the Primary Education Act or the Tribunal Act or the Procedure Order does not provide for power to execute the orders. Clause 14 of the Procedure Order reads to the effect that the Tribunal shall in any matter not provided for in this Order, follow the procedure, as far as it is applicable, laid down in the Code of Civil Procedure, 1908. He emphasises on the words "as far as it is applicable." He contended that providing with this Clause is not with a view to clothe the Tribunal with C.P.C. In absence of any source of power or source of procedure, Clause 14 cannot be read to provide application of C.P.C. and powers conferred thereunder. Again, we may say that the Legislature can never intend to provide with a right without a remedy to enforce the same. As discussed earlier, Clause 14 of the Procedure Order provides that the Tribunal shall follow the procedure, as far as it is applicable, laid down in Civil Procedure Code, 1908 in any matter not provided for in its order. What is not provided is, according to Dr. Sinha, learned Advocate, for execution of the Tribunal's order. But if we read whole of the Procedure Order, it provides for the stage upto the pronouncement of judgment and providing with the copies of the documents on payment of fees. Why the Legislature provides for supply of copies of documents and why procedure till the stage of pronouncement of judgment is provided? It can be said that instead of incorporing entire C.P.C., the entire C.P.C. is to be read in this Procefure Order by Clause 14. Question may arise that while deciding an application of the teacher of his dispute with the management, number of questions may arise, namely, appointment of receiver, appointment of Commissioner, inspection of the documents, production of the documents and execution of the order that may be passed. The Tribunal will have to pass some orders for just resolution of dispute and the same can be done by taking recourse to C.P.C. which can be done by extending powers conferred under the clause. In view of this fact, we are of the opinion that Clause 14 provides for application of C.P.C. even for the purpose of execution.
33. Dr. Sinha further contended that Primary Education Act suffers from the vice of lack of substantive power to execute. If such a substantive power is missing, it cannot be read by implication or it cannot be provided with by some Procedure Order. He, in support of this contention, relied on a judgment in the case of Tata Iron and Steel Co. v. Workmen . The relevant observation, for our purpose, on which he has relied, reads as under:
11. Now, the increasing complexity of modern administration and the need for flexibility capable of rapid readjustment to meet changing circumstances, which cannot always be foreseen, in implementing our socio-economic policy pursuant to the establishment of a welfare State as contemplated by our Constitution, have rendered it convenient and practical, nay, necessary, for the legislatures to have frequent resort to the practice of delegating subsidiary or ancillary powers to delegates of their choice. The Parliamentary procedure and discussion in getting through a legislative measure in the legislatures usually time-consuming. Again such measures cannot provide for all possible contingencies because one cannot visualise various permutations and combinations of human conduct and behaviour. This explains the necessity for delegated or conditional legislation. Due to the challenge in the complex socioeconomic problems requiring speedy solution the power of delegation has by now as per necessity become a constituent element of legislative power as a whole. The legal position as regards the limitation of this power is, however, no longer in doubt. The delegation of legislative power is permissible only when the legislative policy and principle are adequately laid down and the delegate is only empowered to carry out the subsidiary policy within the guidelines laid down by the legislature. The legislature, it must be borne in mind, cannot abdicate its authority and cannot pass on to some other body the obligation and the responsibility imposed on it by the Constitution. It can only utilise other bodies or authorities for the purpose of working out the details within the essential principles laid down by it. In each case, therefore, it has to be seen if there is delegation of the essential legislative function or if it is merely a case in which some authority or body other than the legislature is empowered to work out the subsidiary and ancillary details within the essential guidelines, policy and principles, laid down by the legislative wing of the Government. In the present case, the relevant Schedule read with Section 5 of the Act No. 46 of 1948 clearly lays down the policy and the principle for framing the scheme. Para 8 of the Coal Mines Bonus Scheme provides for the effect of participation in illegal strike and in case a dispute arises as to whether a strike is legal or illegal for the purposes of the scheme, which authority, and according to what procedure, is to decide that dispute. This, in our view, is a matter of detail which is subsidiary or ancillary to the main purpose of the legislative measure for implementing the scheme. It partakes to the character of subordinate legislation on ancillary matters falling within the conditions laid down in the aforesaid Act by Section 5 read with the relevant Schedule. Para 8 of the scheme is accordingly valid and it cannot be considered to amount to excessive delegation of legislative power. The challenge on this score is, therefore, devoid of merit.
In our opinion, this judgment on the contrary helps us to read incorporation of C.P.C. in the Tribunals Act through Procedure Order.
34. Mr. Shah, Learned Counsel for the respondents, has contended that Code of Civil Procedure, 1908 is applicable as far as in any matter not provided for in the Procedure Order. Mr. Shah further contended that in view of the provisions in Clause 14 of the Procedure Order we have to read Civil Procedure Code, 1908 by incorporation. This Procedurre Order is made by the Government of Gujarat in exercise of powers conferred by Sub-section (5) of Section 40F of the Bombay Primary Education (Gujarat Amendment) Act, 1986. Sub-section (5) of Section 40F reads as under:
(5). The Tribunal shall follow such procedure as the State Government may by general order direct.
At the cost of repetition, we would like to say that the Primary Education Act does not specifically provide for execution of the orders that may be passed by the Tribunal. In view of Sub-section (9) of Section 40F, the Tribunal can decide legality or justification of the orders of dismissal, removal or reduction in rank of a teacher of a recognised private primary school. The Tribunal can also while deciding the same direct that the teacher to be reinstated in service or restored to the rank which he held immediately before the reduction in rank by the Manager. This suggests that the Tribunal can equally pass an order of reinstatement with retrospective effect, i.e., from the date of dismissal, removal or reduction in rank. In such situation, there will be a claim for past salary. If the same is not paid, what would be the remedy available to the teacher? To ameliorate this situation of the teachers, under Sub-section (5) of Section 40F, Procedure Order is made and Clause 14 provides for Tribunal to follow provisions of Civil Procedure Code in the matters not provided in this Order. If we read Clause 14, it can be said that Cvil Procedure Code, 1908 is made applicable by incorporation. When a statute is incorporated in another one, the same is required to be read as if it is a part of that statute. Rules or Procedure Order made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act and are to be judicially noticed for all purposes of construction or obligation. The statutory Rules cannot be described as or equated with administrative directions. The Primary, Education Act and the Procedure Order made thereunder constitute a self-contained Code providing for resolving the disputes between the teacher and the management of a recognised primary school. It is well accepted legislative practice to incorporate by reference if the legislature so chooses the provisions of some other Act in so far as they are relevant for the purpose and in furtherance of the scheme and object of that Act.
35. Supreme Court in the case of State of U.P. v. Babu Ram , while replying the contention of the Learned Counsel for the appellants that sub-para (3) of para 486 of the Police Regulations enables the appropriate police authority to initiate the departmental proceeding without complying with the provisions of sub-para (1) of para 486 has held as under:
(22) The discussion yields the following result: (1) In India every person who is a member of a public service described in Article 310 of the Constitution holds office during the pleasure of the President or the Governor, as the case may be, subject to the express provisions therein. (2) The power to dismiss a public servant at pleasure is outside the scope of Article 154 and, therefore, cannot be delegated by the Governor to a subordinate officer, and can be exercised by him, only in the manner prescribed by the Constitution. (3) This tenure is subject to the limitations or qualifications mentioned in Article 311 of the Constitution. (4) The Parliament or the Legislatures of States cannot make a law abrogating or modifying this tenure so as to impinge upon the overriding power conferred upon the President or the Governor under Article 310, as qualified by Article 311. (5) The Parliament or the Legislatures of States can make a law regulating the conditions of service of such a manner which includes proceedings by way of disciplinary action, without affecting the powers of the President or the Governor under Article 310 of the Constitution read with Article 311 thereof. (6) The Parliament and the Legislatures also can make a law laying down and regulating the scope and content of the doctrine of "reasonable opportunity" embodied in Article 311 of the Constituion; but the said law would be subject to judicial review. (7) If a statute could be made by Legislatures within the foregoing permissible limits, the rules made by an authority in exercise of the power conferred thereunder would likewise be efficacious within the said limits.
(23) What then is the effect of the said propositions in their application to the provisions of the Police Act and the rules made thereunder? The Police Act of 1861 continues to be good law under the Constitution. Paragraph 477 of the Police Regulations shows that the rules in Chapter XXXII thereof have been framed under Section 7 of the Police Act. Presumably, they were also made by the Government in exercise of its power under Section 46(2) of the Police Act. Under para 479 (a), the Governor's power of punishment with reference to all officers is preserved; that is to say, this provision expressly saves the power of the Governor under Article 310 of the Constitution.
'Rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act, and are to be judicially noticed for all purposes of construction or obligation'- See Maxwell on the Interpretation of Statutes, 19th Edn. pp. 50-51. The statutory rules cannot be described as, or equated with, administrative directions. If so, the Police Act and the rules made thereunder constitute a self-contained Code providing for the appointment of Police officers and prescribing the procedure for their removal. It follows that where the appropriate authority takes disciplinary action under the Police Act or the rules made thereunder, it must conform to the provisions of the statute or the rules which have conferred upon it the power to take the said action. If there is any violation of the said provisions, subject to the question which we will presently consider whether the rules are directory or mandatory, the public servant would have a right to challenge the decision of that authority.
So also in the instant case, when the Primary Education Act does not specifically provide for execution of the order that may be passed, but equally provides for the procedure as the State Government may by general order direct to follow and when the State Government under the said powers provides for the procedure and precisely makes Civil Procedure Code, 1908 applicable as far as to the matters not provided for in the Procedure Order, it means that the Code of Civil Procedure, 1908 is made part of this Procedure Order by incorporation.
36. In the case of M/s. Agrawal Trading Corporation and Ors. v. The Assistant Collector of Customs , the Supreme Court has observed as under:
... This argument, in our view, is misconceived because firstly, it is a well accepted legislative practice to incorporate by reference, if the legislature so chooses, the provisions of some other Act in so far as they are relevant for the purposes of and in furtherance of the scheme and object of that Act and secondly, that merely because the restrictions specified in Section 8 of the Foreign Exchange Regulation Act are deemed to be prohibitions and restrictions under Section 19 of the Sea Customs Act, those prohibitions and restrictions are not necessarily confined to goods alone but must be deemed for the purposes of the Foreign Exchange Regulation Act to include therein restrictions in respect of the articles specified in Section 8 thereof, including currency notes as well...It is, however, unnecessary to consider this aspect because even if the currency notes are not goods, the restrictions prescribed in Section 8 of the Foreign Exchange Regulation Act cannot be nullified by Section 23A thereof which incorporates Section 19 of the Sea Customs Act....
37. In these circumstances, we come to the conclusion that Clause 14 of the Procedure Order provides for application of procedure for execution of the order that may be passed by the Tribunal by way of execution provided in C.P.C.
38. In view of our finding that all procedure as far as it is applicable laid down in C.P.C. will apply, we would like to make it clear that after passing the award if the same is not complied with by the respondent, then the petitioner can move the Tribunal again by way of application to execute the same and the procedure to be followed by the Tribunal, utilising its own infrastructure, would be like a Civil Court, which executes its own decree and orders. May be that the Tribunal be burdened with an additional work, but that is not the concern of this Court.
39. This Court (Coram: A.P. Ravani and C.K. Thakker, JJ.) in M.C.A. Nos. 31 and 32 of 1992, has held in its judgment dated 13-2-1992 as under:
It is often contended that the Tribunal has no power to secure the compliance of the interim orders and final orders that may be passed by it. The contention has no roots either in law or in common sense. Way back in the year 1969, in the case of I T.O Officer v. Mohd. Kunhi, AIR 1969 SC 430, the Supreme Court has held as follows:
'It is a firmly established rule that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective.' In connection with the provisions of Section 254 of the Income-Tax Act, 1961, the Supreme Court observed that the powers which have been conferred by Section 254 on the appellate Tribunal with widest possible amplitude must carry with them by necessary implication all powers and duties incidental and necessary to make the exercise of those powers fully effective. After referring to Maxwell on Interpretation of Statutes, the Supreme Court has observed as follows:
'Where an Act confers a jurisdiciton, it impliedly also grants the power of doing all such acts or employing such means, as are essentially necessary to its execution. Cui jurisdictio data est, ea quoqe concessa esse vindentur, since quibus jurisdictio explicari non potuit.' The Supreme Court approvingly quoted the following observations from Ex Parte, Martin, 1879 (4) QBD 212:
'Where an inferior court is empowered to grant an injunction, the power of punishing disobedience to it by commitment is impliedly conveyed by the enactment, or the power would be useless if it could not be enforced'.
XXX XXX XXX
8. The provisions of the Bombay Primary Education Act clearly show that the Tribunal has been formed with powers to decide the disputes between the teacher and the school management. Thus, there is an expres grant of power. This express grant of power carries with it by necessary implication the authority to use all reasonable means to make such grant effective. Thus, the power also includes the power of doing all such acts, or of employing such means as are essentially necessary for execution. Therefore, the Tribunal should ordinarily exercise its power of imposing effective and meaningful conditions even while issuing interim orders to see that the interim orders are complied with. This can and should be done by the Tribunals. We may illustrate as to what can be done by the Tribunal:
(a) The Tribunal can direct the opponent to remain present in Court and report compliance of its interim order;
(b) The Tribunal can direct that in case the amount is not paid as per the direction by its interim order, the amount shall carry interest at the appropriate rate which in the present day market condition can be between 15 to 21 per cent;
(c) The Tribunal can and should indicate that in case there is failure to comply with its order, defence of the opponent may be strcuk off. After giving an opportunity to the opponent, if the opponent fails to show sufficient cause relieving him from the consequences of the non-compliance of the order, its defences may be struck off. Later on, in fit cases on compliance of the order or on any other suitable condition the opponent may be permitted to appear and defend;
(d) The Tribunal in appropriate cases can award cost and in given cases, it can be even exemplary costs. Even for non-compliance of the interim orders, costs can be awarded.
This list is merely illustrative one and by no means should be treated as exhaustive. The Tribunal can and should act with innovative imagination and employ all necessary means to make the conferment of power meaningful and effective. 8. The aforesaid discussion clearly shows that the Tribunal has ample power to see that its interim orders are complied with. We fail to understand why the Tribunal cannot exercise its power and is forcing the parties to have recourse to this Court for which the parties are required to undergo harassment and incur heavy expenses. Moreover, the time of this Court is also unnecessarily wasted in the work which could be done by the Tribunal itself.
40. In view of the above discussion, we conclude that the order that may be passed by the Tribunal is executable by the Tribunal, following the procedure laid down in C.P.C. Simply because the order passed by the Tribunal is executable, it does not take out the case of the petitioners from the purview of contempt, if it can be so held in the facts and circumstances of the case. Supreme Court in Alahar's case (supra) has held that contempt is not a substitute for execution. However, we further clarify that simply because an order can be executed, it does not go out of rigour of contempt if case falls within the ambit of civil or criminal contempt. There may be cases where non-compliance of the order even if the same is executable may amount to contempt. However, it depends on the facts of each case and this Court may take cognizance under Contempt of Courts Act.
41. This brings us to the contention raised by Mr. Shah that this Court should not prosecute further and drop the proceedings for contempt inasmuch as the alleged act of contempt is committed a year before. In the present case, the order, of which non-compliance is alleged, is dated 16-8-1994, which became effective immediately from the next date. This contempt application is filed on 6-10-1994. This Court has ordered to issue notice on 10-10-1994 and rule came to be issued on 15-9-1995. Question to be considered is whether the action under the Contempt of Courts Act can be said to have been initiated from the date of issuance of notice or rule? There is no dispute that contempt proceedings cannot be initiated by Court after the expiry of a period of one year from the date of the alleged commission of act of contempt. There is no dispute of the fact that the action is required to be initiated after application of mind to the facts placed before the Court. In the present case, application is filed, stating all the facts alleging that respondents have committed Contempt of Court. This Court on 10-10-1994 ordered to issue notice. Under the Rules framed by this Court, any application filed by a party comes before the Court for admission and if admitted, then for final hearing. At that stage, the Court has to decide whether the matter is fit one to be admitted or not. While considering that aspect, Court applies its mind on the facts stated in the application and the documents annexed thereto. At the stage of admission hearing, again another course is available to the Court to issue notice and call upon the other side. Issuance of notice is not a matter of course. When the Court feels it necessary on reading the papers on application of mind, it may order to issue notice. Therefore, issuance of notice by the Court is only after application of mind by the Court on perusing the facts stated in the petition and the documents, if any, annexed thereto. At the stage of admission hearing, if the Court feels that there is no case made out, the Court may straightway reject the petition, but if the Court thinks it necessary to call the other side, in the facts and circumstances of the case, instead of issuing rule, the Court may issue a notice, but issuance of notice cannot be said to be without application of mind and it amounts to initiation of proceedings. Even the Rules under the Contempt of Courts Act specifically suggests initiation of proceedings under the Contempt of Courts Act. The notice itself shows why the respondent be not committed to prison under the Contempt of Courts Act or otherwise penalised or dealt with for above contumacious conduct. In any case, notice suggests that the same is ordered to be issued after application of mind.
41A. Mr. Shah to substantiate his contention, has relied on a judgment in the case of J.A. Goraswa v.D.G.P. and I.G.P., Gujarat State, . Mr. Shah, relying on that judgment, contended that issuance of rule is taking cognizance of the matter and not the notice. We have ourselves perused the record of that case and in that matter, no notice was ordered to be issued, but straightway the rule was issued and the date of issuance of rule was taken into consideration as the date of initiation of proceedings for deciding whether the proceedings were barred by limitation or not. Therefore, in our opinion, said judgment is of no assistance to Mr. Shah, as it does not specifically decide or hold that issuance of rule only amounts to taking of cognizance or initiation of proceedings and not notice.
41B. Mr. Shah, to support his contention, has relied on a judgment in the case of Dineshbhai v. Kripalu Co-op. Housing Society . In our opinion, the observations made in the said judgment on the contrary supports our view. The same reads as under:
19. The conclusion which we record, therefore, is that no contempt proceedings can be initiated by a Court after the expiry of a period of one year from the date of the alleged commission of contempt. Action under the Contempt of Courts Act, 1971 can be taken if the Court has applied its mind and initiated proceedings by passing some order within a period of one year from the date of the alleged act of contempt. If an application for taking action under the Contempt of Courts Act, 1971 is filed within a period of one year from the date of the alleged commission of contempt, but the Court has passed no order thereon before expiry of one year from the said date, such application automatically fails and the jurisdiction of the Court is barred because Court did not apply its mind to the complaint or information within a period of one year. It is this application of mind by the Court which amounts to initiation of proceedings within the meaning of Section 20 of the Contempt of Courts Act, 1971 (Emphasis supplied).
So, in the instant case, the Court did apply its mind and has ordered to issue notice on 10-10-1994 and this amounts to initiation of proceedings within the meaning and time prescribed under Section 20 of the Act. Thus, we do not find any substance in this contention raised by Mr. Shah.
42. Mr. Shah has further contended that this Court has no jurisdiction to take action under the Contempt of Courts Act, as the case of the petitioners does not fall within the purview of Clause (b) of Section 2 of the Contempt of Courts Act, which reads as under:
Civil Contempt" means wilful disobedience to any judgment, decree, order, writ or other process of a Court or wilful breach of undertaking given to a Court.
43. Mr. Shah contended that at the time when those proceedings were intiated, Spl. C.A. No. 11767 of 1994 was pending, wherein the impugned order, of which non-compliance is alleged, was under challenge. Said order of the single Judge was challenged before the Division Bench, by way of L.P.A. and the same also came to be decided on 13/14-9-1995. It is contended that the respondents have applied for the certified copy thereof, but has not received the same till date and the respondents propose to file Special Leave Petition in the Hon'ble Supreme Court. Stating these facts, it is contended that the order has not become final and, therefore, non-compliance of the order cannot be said to be wilful one. It will be relevant to refer to the concluding paragraphs of Spl. C.A. No. 11767 of 1994, which read as under:
11. In view of what is stated above, I do not find any substance in the petition and the same is dismissed. The interim relief granted by me automatically stands vacated. Notice discharged.
12. Mr. Shah Learned Counsel appearing for the petitioner applies for stay of my order. In view of Mr. Shah's application, Mr. Mehta, Learned Counsel appearing for the respondents, states that for a period of three weeks, the respondents will not press the pending contempt petition. In view of this statement, there is no reason for me to grant any separate stay order.
This contempt application then came up for hearing after three months. However, when this petition was heard, L.P.A. No. 797 of 1995 filed by the respondents also came to be dismissed summarily by a reasoned order. There also, it was prayed by the respondents to stay the order and the Division Bench passed the following order:
Mr. Shah, learned Advocate for the appellant requests that implementation and operation of the order passed by the Court may be stayed for two months. In the circumstances of this case, we find no reason to grant prayer. Hence the request is rejected.
44. Mr. Shah contended that his clients, i.e., respondents herein, intend to challenge the said order before the Supreme Court by way of Special Leave Petition. However, they are not able to do so, as they have not received the certified copy. In our opinion, when there is no stay either granted by the single Judge or by the Division Bench in L.P.A., it cannot be said that non-compliance of the order is not a disobedience. Intention to file Special Leave Petition does not absolve the respondents from their duty to comply with the order passed by the Tribunal. It was the duty of the respondents to obtain necessary stay, for which they failed in the High Court before single Judge as well as Division Bench. In absence of such stay, non-compliance amounts to disobedience. Therefore, we hold that noncompliance of the order by the respondents is disobedience. Special Leave Petition is not a right under any statute. A party may or may not file S.L.P. We are, therefore, of the opinion that non-compliance of the order by the respondents is disobedience.
45. Learned Counsel Mr. Shah has relied on the following two Supreme Court judgments to show that there is no wilful disobedience. They are Niaz Mohammad and Ors. v. State of Haryana and Ors. and Manish Gupta and Ors. v. Gurudas Roy . In the instant case, the Tribunal has held that the petitioners are entitled to the scale fixed by the Government and the difference of scale should be paid as directed in the order. For non-payment of the same, it is alleged that contempt is committed. In the case of Niaz Mohammad (supra), the Supreme Court has held that there is no withful disobedience. In that case, the direction given was as under:
that instructors were entitled to the same pay-scale as sanctioned to the squad teachers and a direction was given to fix the scale of pay of the instructors with effect from the date of their initial appointment by ignoring the break in service on account of six months fresh appointments.
As this direction was not complied with, the application for taking action under the Contempt of Courts Act was filed. There, the Supreme Court has held:
9... Once a decree has been it is the duty of the Court to exectue the decree whatever may be consequence thereof. But while examining the grievance of the person who has invoked the jurisdiction of the Court to intiate the proceeding for contempt for disobedience of its order, before any such contemner is held guilty and punished, the Court has to record a finding that such disobedience was wilful and intentional. If from the circumstances of a particular case brought to the notice of the Court, the Court is satisfied that although there has been a disobedience but such disobedience is the result of some compelling circumstances under which it was not possible for the contemner to comply with the order, the Court may not punish the alleged contemner.
XXX XXX XXX
11. Taking all facts and circumstances into consideration, we are satisfied that in the facts and circumstances of the present case, there is no wilful disobedience on the part of respondents in complying with the direction given by this Court in the aforesaid judgment. It cannot be disputed that when the aforesaid direction was given, this Court was not conscious that the direction had created a liability for payment of about 28 crores of rupees, as arrears to the instrcutors in the adult and non-formal education scheme under the Education Department in the State of Haryana. Out of that amount, about 20 crores of rupees have already been disbursed for different periods to the instructors. In this background, it is not possible to hold that respondents have committed contempt of this Court, for which they ought to have punished by this Court...
46. So also, in the case of Manish Gupta (supra), direction given by the Court read as under:
The draft gradation list is set aside and quashed. The respondents are directed to determine the senioirty of the petitioner on the basis of continuous lenght of service from 27-5-1969 and confer upon the petitioner all consequential benefits.
L.P.A. filed against the said judgment of the learned single Judge was dismissed by the Division Bench of the High Court. It was alleged in that case that one Hrishikesh Roy, who was admittedly junior to the petitioner, was promoted as Upper Division Assistant on the same day when the respondent, i.e., Gurudas Roy was promoted. In view of this fact, in an action for contempt, Supreme Court held that it cannot be held that on circulating the gradation list on 30-1-1990, the appellant has violated the first direction given by the appellate Court. It is further held:
20. We do not propose to go into the question of interpretation of Rule 55(4) of the Rules. But at the same time we cannot say that there is no merit in the submission of Shri Sanghi that in view of the proviso to Rule 55(4), the respondent cannot claim the fixation of his basic pay on the same level as the basic pay drawn by Hrishikesh Roy. In our view, the appellants could reasonably proceed on the basis that in view of the proviso contained in Rule 55(4) of the Rules, the pay of the respondents cannot be fixed at the same level as that of the Hrishikesh Roy and, therefore, in fixing the basic pay of the respondent, it cannot be said that the appellants had wilfully and deliberately disobeyed the directions given by the appellate Bench in its order dated 20-9-1989. On that view of the matter, the learned Judges of the High Court were, in our opinion, not justified in holding the appellants guilty of the Contempt of Court for not complying with the directions of appellate Bench regarding fixation of basic pay of the respondents. If the respondent feels that the refixation of his pay has not been made in accordance with the relevant rules, he may, if so advised, pursue the remedy available to him in law for enforcing his rights.
47. In view of the above judgment, it was contended that when there is some confusion about the interpretation of the order and if the order is not obeyed, it cannot be said to be wilful one.
48. It is further contended by learned Advocate for the respondents that in any view of the reading of the matter, the disobedience alleged cannot be said to be wilful as required under Clause (b) of Section 2 of the Contempt of Courts Act. It is stated at the Bar that number of matters by way of Special Leave Petitions are pending before the Supreme Court, wherein identical question are raised. Identical questions, as we are informed, are petaining to whether the scale as ordered by the Tribunal can be given or not? In petition for Special Leave to Appeal (Civil) No. 21357 of 1994 and others, Supreme Court has passed the following order on 4-8-1994:
The prayer for impleadment is rejected, but the Gujarat State Federation of Private Primary Teachers' Association is permitted to intervene. Four weeks' time is granted to the petitioner to file their rejoinder to the counter-affidavit. Shri Haroobhai Mehta, Learned Counsel for the affected teachers submits that contempt proceedings initiated against the petitioner would not be pursued in the meantime. List after six weeks.
Thereafter, Supreme Court on 28-11-1994 passed the following order:
It is pointed out by Shri Dave, Learned Counsel for the State that S.L.P. (C) No. 353 of 1993 filed against the same judgment was dismissed summarily on 15-2-1993. However, it does appear to us that certain question relating to the obligation of the State to provide free and compulsory education for all children until they complete the age of 14 years, under Article 45 of the Constitution do arise for consideration as related matters to the main controversy. It would, therefore, be appropriate that these matters be heard as regular matters.
Accordingly, delay condoned in S.L.P. (CC 27113). We grant leave in all these matters. It would be appropriate that these matters are heard by a Bench of three Hon'ble Judges at an early date in view of the significance of these matters. Necessary directions in this behalf be obtained from the Hon'ble Chief Justice of India.
Question is whether the statement made in the earlier order of 4-8-1994 by Senior Counsel Mr. Haroobhai Mehta that "contempt proceedings initiated against the petitioner would not be pursued in the meantime" continues or not. Mr. Shah, learned Advocate for the respondents, contended that the same continues. Mr. Haroobhai Mehta contended that the said statement has come to an end. However, If we read two orders i.e., order dated 4-8-1994 and 28-11-1994 of the Supreme Court, it is not clear that that statement of Mr. Haroobhai Mehta, Senior Counsel comes to an end or not. If any confusion has arisen in the mind of the respondents that such a statement continues, it cannot be said to be ill-founded. If the orders are not complied with, in view of such a state of situation as to the statements, we would not like to call or hold that non-compliance of the order is wilful one. It is also clear that whatever be the judgment in mat S.L.P. would decide the policy for the Government and will be binding on all the primary schools whether they have challenged that order or they have approached the Supreme Court by way of S.L.P. or not in view of the mandate of Article 141 of the Constituttion of India. Keeping this in mind, we are of the view that disobedience, though it is, it cannot be said to be a wilful one as the managment is prosecuting legally the remedy available to them and they are awaiting for the order of the Surpreme Court.
49. Following statement and contentions raised are not made out from the record. However, they are considered and dealt with as (1) respondents have not objected to them and (2) petitioners have argued their case personally.
50. Apart from this, the petitioners who have personally argued this case, have further contended that except petitioners the other teachers in the school are given new scale even after the order of the Tribunal. It is made clear and agreed to by the petitioners also that new scale is not given to any of the teachers in the school and they are all paid the old scales. The petitioners are in service; they are discharging their duties and they are paid old scales. The petitioners contended that one of the teachers in the school is given the new scale. On enquiry from Mr. Shah, Learned Counsel for the respondents, it is clarified that the said teacher is under suspension and he is given subsistence allowance on the basis of the new scale as per ordei of this Court. It is made clear that none of the teachers, who is in employment and discharging duty, is given new pay-scale. The petitioners have contended before this Court that respondents were required to write to the Department for fixation of the salary and they have not yet done so. In reply to this, Mr. Shah had stated at the Bar that after coming into operation of the new scale, teachers were required to exercise some option. None of the teachers of the school had exercised the option. However, though they have not exercised the option, the respondents have written a letter to the Department for fixation of the salary and unless the same is carried out, no further action for payment can be made by them. In view of these facts, we are of the opinion that though there is a disobedience on the part of the management, it cannot be said to be a wilful one and, therefore, the case of the petitioners does not fall within the purview of the Contempts of Courts Act.
51. As an alternative argument, Mr. Shah had also contended that if Civil Procedure Code is not made applicable to the proceedings before the Tribunal in view of Clause 14 of the Procedure Order, then the proceedings are ultra vires Article 14 of the Constitution of India inasmuch as Section 40G (2) read with its proviso creates discrimination between similarly situated persons. This contention is required to be stated for the purpose of its rejection. Respondents have no right to raise this contention, as they are not complying with the Court's order. Secondly, we have dealt with this contention while deciding whether provisions of Civil Procedure Code would be applicable or not and we have held that procedure of Civil Procedure Code is to apply. Even if Civil Procedure Code does not apply, then also it cannot be said that in one set of facts Civil Procedure Code is applicable and in another set of facts, the Civil Procedure Code is not applicable and the proceedings are barred by Article 14. We, therefore, reject this contention.
52. This takes us to the last contention about non-compliance with the procedural part as prescribed in the rules under the Contempt of Courts Act by this Court. Mr. Shah contended that the petition is not supported by any affidavit and the same cannot be entertained. Rule 7(c) provides that every petition shall be supported by affidavit. The deponent shall state what paragraphs or portions of his affidavit he swears or solemnly affirms to from his own knowledge and what paragraphs or portions he swears or solemnly affirms is on his own belief, stating the grounds of such belief. It will be relevant to state that the petitioners are primary school teachers. They have filed this petition in person, stating all the relevant facts which they thought it fit. The petitioner also bears Ekaramama (verification) duly signed by the petitioners and the same is on solemn affirmation before the duly authorised officer of this Court. Whole of the petition is on solemn affirmation. Therefore, in our opinion, more particularly when the party-in-person has filed this petition, it cannot be said that Rule 7(c) of the Contempt of Court Rules is not complied with. This apart, in our opinion, this is a procedural flaw even it be. Procedure is handmade of administration of justice and should not come on the way of the Court in the administration of justice. Non-compliance of procedural part is an irregularity and is not illegality. It will be relevant to state that this object is raised by the respondents in the course of arguments. They have not raised this contention any time before and it is stated again that they have not filed any affidavit-in-reply. If they would have filed an affidavit-in-reply and raised this contention, this would have been regularised. This apart, the facts stated in their application are all based on record.
Mr. Shah has relied on a judgment in the case of J.A. Goraswa, . However, in the facts and circumstances of this case, we do not sustain the objection as to non-compliance of Rule 7 and to be precise affidavit.
53. In view of the above discussion, we are of the opinion that the petition should fail and is hereby dismissed. Rule discharged. No costs.