Bombay High Court
Mohammad Salam Anamul Haque vs S.A. Azmi And Ors. on 25 April, 2000
Equivalent citations: [2000(87)FLR414], (2000)IIILLJ1028BOM
Author: D.K. Deshmukh
Bench: D.K. Deshmukh
ORDER D.K. Deshmukh, J.
1. This petition has been filed under Section 10 of the Contempt of Courts Act, 1971 alleging that the Respondents have wilfully committed breach of the order dated October 16, 1995 passed by the School Tribunal, Nasik Region, Nasik in Appeal No. 22 of 1993 filed by the petitioner.
2. The facts that are material and relevant for the present purpose are that according to the petitioner he was in service of the Respondent No. 3 School since 1990. His services were terminated on April 30, 1993 by the management. Therefore, he filed an appeal before the School Tribunal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as the "Act"). Some other employees of the Respondent No. 3, whose services were also terminated had also filed appeals. Their appeals were registered as Appeal No. 21/1993 and Appeal No. 23/1993. All these three appeals namely Appeal No. 21 of 1993, No. 22 of 1993 and Appeal No. 23 of 1993 filed by the petitioner were decided by the School Tribunal by its order dated October 16, 1995. All the three appeals were allowed. The management was directed to reinstate all the three appellants in their original posts with backwages. 40 days' time was given to the management to comply with the order. It transpires that the management filed Writ Petition No. 6096 of 1996 in this Court and this Court on December 20, 1996 passed an order granting interim relief in terms of prayer Clause (c). By prayer Clause (c) stay of the order passed by the School Tribunal dated October 16, 1995 was sought. It further transpires that though the Writ Petition No. 6096 of 1996 only the Appellant in appeal No. 21 of 1993 before the School Tribunal was joined as the Respondent, stay of the common order dated October 16, 1995 in all the three appeals came to be granted. Therefore Civil Application No. 2401 of 1999 was taken out for clarification of that order. Order of this Court dated December 20, 1996 was clarified by order dated July 2, 1999 and it was made clear that operation of the interim order passed in Writ Petition No. 6096 of 1996 is restricted only to the respondent No. 4 in that petition. To the Writ Petition No. 6096 of 1996 the present petitioner was not joined as the respondent. It is therefore obvious that the order of the School Tribunal dated October 16, 1995 insofar as it grants reinstatement in service with full backwages to the petitioner was not stayed by this Court. It may be mentioned herein that though the School Tribunal made an order in favour of the petitioner, the management on its own did not comply with that order, after, as stated above, the interim stay order of this Court was clarified by this Court by order dated July 2, 1999. Notice dated November 2, 1999 was served on the management calling upon it to comply with the order of the School Tribunal. Still the management did nothing and therefore the petitioner has filed this contempt petition under Section 10 of the Contempt of Courts Act.
3. Perusal of Section 10 of the Contempt of Courts Act shows that it vests in every High Court jurisdiction and powers to punish the person who commits contempt of the Courts subordinate to it. In the present case, the allegation is that the respondents have not obeyed the order made by the Court subordinate to this Court.
4. The question that requires to be considered at this stage is whether the Court should initiate proceedings against the respondents for contempt. The Supreme Court in its recent judgment in the case of Om Prakash Jaiswal v. D.K. Mittal and Anr. 2000 (2) SCALE page 28 has stated that:
"A look at the concept of contempt and need for care and circumspection to be exercised before initiating proceedings for contempt would show the necessity for enacting Section 20 and devising therein the concept of 'initiation of proceedings for contempt.'"
It is clear that the jurisdiction of this Court for punishing the person for contempt is a summary jurisdiction and therefore it has to be exercised with great care and caution and only when its exercise is necessary for the proper administration of law and justice. The Supreme Court in its judgment in Om Prakash case has quoted passage from the judgment in Re-Clements, Republic of Costa Rica v. Erlanger 1876 46 LJ 37, 385. It reads as under:
"It seems to me that this jurisdiction of committing for contempt, being practically arbitrary and unlimited, should be most jealousy and carefully watched, and exercised: if I may say so, with the greatest reluctance and the greatest anxiety on the part of Judges, to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject. I say that a Judge should be most careful to see that the cause cannot be fairly prosecuted to a hearing, unless this extreme mode of dealing with persons brought before him on accusations of contempt should be adopted. I have myself had on many occasions to consider this jurisdiction, and I have always thought that, necessary though it may be, it is necessary only in the sense in which extreme measures are sometimes necessary to preserve men's rights, that is if no other pertinent remedy can be found, probably that will be discovered after consideration to be the true measure of the exercise of the jurisdiction."
5. It is thus clear that one of the aspects to be looked into by the Court before initiating action under the Contempt of Courts Act is to find out whether the petitioner has any other remedy available for enforcing the order of which he is alleging breach by the respondent. This aspect of the matter, it appears has also been considered by the Divisions Bench of the Karnataka High Court in its judgment in the case of Rudraiah v. State of Karnataka . In paragraph 5, the Division Bench of the Karnataka High Court observed thus:
"It is a well settled principle of law that when there is special law and general law, the provisions of the special law prevail over the general law and when special procedure and special provision are contained in the C.P.C. itself under Order 39 Rule 2A for taking action for the disobedience of an order of injunction, the general law of contempt of Court cannot be invoked. If such a course encouraged holding that it amounts to contempt of Court, when an order of subordinate Court is not obeyed, it is sure to throw open a floodgate of litigation under contempt jurisdiction. Every decreeholder can rush to this Court stating that the decree passed by a subordinate Court is not obeyed. That is not the purpose of Contempt of Courts Act."
6. Thus, it appears to be a view of the Karnataka High Court that if a remedy for enforcing the order made by the subordinate Court is available, then the jurisdiction of the High Court under the Contempt of Courts Act cannot be invoked. Though to my mind it is an extreme view, nevertheless, if there exists a remedy for enforcing an order passed by the subordinate Court of which breach is alleged, then the High Court would be reluctant to entertain that contempt petition. Nevertheless, the jurisdiction of the High Court to initiate the contempt proceedings in an appropriate case under Section 10 cannot be said to be ousted, only because, the order is capable of being enforced by some other mode. However, whether any other mode for enforcing the order is available to the petitioner and whether the petitioner has availed of that mode and to what result is a relevant consideration when the High Court considers the question of initiating action under the Contempt of Courts Act. In a case where effective remedy is provided by the statute for enforcing the order and the petitioner does not avail of that remedy and rushes to the High Court, the High Court would certainly be justified without there being anything else than mere disobedience of the order in declining to entertain the contempt petition. It is thus clear that the existence of remedy for enforcing the order made by the subordinate Court as also the question whether the petitioner has availed of that remedy is a relevant consideration. It therefore becomes necessary for me to find out whether the order made by the School Tribunal is capable of being enforced by any other mode.
7. It is Section 9 of the Act, which creates a right in an employee of Private School, who has been dismissed, removed etc. from the services, to file an appeal against such an order before the Tribunal constituted under Section 8 of the Act. Section 10 deals with general powers and procedure of the Tribunal. Sub-section (1) Section 10 is relevant for the present purpose, which reads as under:
"For the purposes of admission, hearing and disposal of appeals, the Tribunal shall have the same powers as are vested in an Appellate Court under the Code of Civil Procedure, 1908, and shall also have the power to stay the operation of any order against which an appeal is made, on such conditions as it may think fit to impose and such other powers as are conferred on it by or under this Act."
Another provision of the Act, which is relevant for the present purpose is provision of Sub-section (3) of Section 11 of the Act, which reads as under;
"It shall be lawful for the Tribunal to recommend to the State Government that any dues directed by it to be paid to the employee, or in case of an order to reinstate the employees any emoluments paid to the employee till he is reinstated, may be deducted from the grant due and payable or that may become due and payable in future, to the Management and be paid to the employee direct."
Section 12 of the Act lays down that the decision of the Tribunal shall be final and binding on the employee and the management and no suit, appeal or other legal proceedings shall lie in any Court in respect of the matters decided by the Tribunal. Section 13 of the Act deals with penalty for failure to comply with Tribunal's decisions. It reads as under:
"(1) If the Management fails, without any reasonable excuse to comply with any direction issued by the Tribunal under Section 11 of any order issued by the Director under Clause (a) of Sub-section (1) or Sub-Section (4) of Section 4-A within the period specified in such direction, or as the case may be, under Sub-section (5) of Section 4-A or within such further period as may be allowed by the Tribunal or Director as the case may be, the Management shall on conviction be punished:
(a) for the first offence with imprisonment for a term which may extend to fifteen days or with fine which may extend to fifty thousand rupees, or with both:
Provided that, in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, the fine shall not be less than ten thousand rupees, and (B) for the second and subsequent offences, with imprisonment for a term which may extend to fifteen days or with fine which may extend to seventy five thousand rupees, or with both:
Provided that, in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, the fine shall not be less than twenty thousand rupees.
2(a) Whereas the Management committing an offence under this Section is a society, every person who, at the time the offence was committed, was in charge of and was responsible to the society, for the conduct of the affairs of the society, as well as the society, shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any person liable to the punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of the offence.
(b) Notwithstanding anything contained in Clause (a), where the offence has been committed by a society and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any president, chairman, secretary, member, Head or manager or other officer or servant of the society, such president, chairman, secretary, member, Head or manager or other officer. or servant concerned shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly."
8. Perusal of the provisions of the Act quoted above shows that the Tribunal has been conferred with the powers of the Appellate Court under the Code of Civil Procedure for the purpose of admission, hearing and disposal of the appeals. It is further pertinent to note that Sub-section 3 of Section 11 makes it lawful for the Tribunal to recommend to the State Government regarding payment to be made to an employee who has been directed to be reinstated by the Tribunal out of the dues that are payable by the Government to the Management. Section 13 provides for prosecution of the management for not obeying the order made by the Tribunal. So far as Sub-section (3) of Section 11 of the Act is concerned, it merely empowers the Tribunal to make recommendation to the State Government. It is further to be seen here that the recommendation made by the Tribunal to the State Government under Sub-section (3) of Section 11 may be of no avail, in case the management is not receiving any grant-in-aid from the State Government. Prosecution of the management under Section 13 for not obeying the order made by the Tribunal can also not be said to provide the appellant before the Tribunal with a remedy for enforcing the order. However, it is to be seen that not only all powers of the appellate Court under the Civil Procedure Code for the purpose of admission, hearing and disposal of the appeals have been conferred on the Tribunal, it has already been held to be a Court by a Division Bench of this Court. Therefore, the question that arises for consideration and which is to be examined is whether the order made by the Tribunal under Section 11 of the Act can be termed as an executable order made by a Court capable of being executed under the provisions of the Civil Procedure Code.
9. The Division Bench of this Court by its judgment in the case of Chandrakant Ganpat Shelar v. Sophy Kelly, Hill Garange High School, Bombay, 1987 MLJ 1012 has already held that the Tribunal constituted under the Act to be a Court within the meaning of Contempt of Courts Act. Section 36 of the Civil Procedure Code lays down that the provisions of this code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders. The term "order" has been defined by Section 2(14) of C.P.C. to mean the formal expression of any decision of a Civil Court which is not a decree. It is, thus clear that to find out whether an order made by the School Tribunal under the Act is an order within the meaning of the Civil Procedure Code, first inquiry has to be made as to whether the Tribunal constituted under the Act can be termed as "Court". The Supreme Court has in its judgment in the case of Brajnandan Sinha v. Jyoti Narain has considered the question as to what are the ingredients necessary for constituting the Court. In paragraph 18, the Supreme Court has observed thus:
"It is clear, therefore, that in order is 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."
Perusal of the provisions of the Act shows that the power has been conferred on the Tribunal to give a definitive judgment and that judgment has been attached finality by the provisions of the Act. Therefore, in view of the judgment of the Supreme Court referred to above in Brajnandan Sinha's case, it can be safely said that the Tribunal constituted under the Act would be a "Court."
10. Section 10 of the Act lays down that for the purpose of admission, hearing and disposal of appeals the Tribunal shall have the same powers as are vested in the Appellate Court under the Code of Civil Procedure. Thus, power of the Appellate Court under the Civil Procedure Code for the purpose of admissions, hearing and disposal of the appeals have been conferred on the Tribunal. This can be said to be legislation by incorporation. Incorporation of provision of the earlier Act into the later Act is a well-known legislative device adopted by the legislature for the sake of convenience in order to avoid verbatim reproduction of the provision of the earlier Act into the later. It is also well settled now that when the earlier Act or certain of its provisions are incorporated by reference into a later Act, the provisions so incorporated become part and parcel of the later Act, as if they had been "bodily transported into it". Therefore, now we can read the provisions of the Civil Procedure Code dealing with the power of the Appellate Court in relation to the admission, hearing and disposal of appeals as provisions incorporated in the Act itself. Section 107 of the Civil Procedure Code deals with the powers of the Appellate Court and it reads as under:
"(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power:
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein."
11. Perusal of the above quoted provisions shows that the Appellate Court has been conferred with the same powers and same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of the suits instituted therein. It is, thus, clear that the Appellate Court under the Civil Procedure Code has the same powers as the trial Court under the Civil Procedure Code and, therefore, the Tribunal constituted under the Act will also possess all the powers of Civil Court under the Civil Procedure Code. Thus, as the Tribunal possesses all the powers that are conferred by the Code on Courts of original jurisdiction, it can definitely be termed as "Civil Court" and therefore the order made by the Tribunal would be an order within the meaning of Section 2(14) of the Civil Procedure Code. It may be pointed out here that this Court by its judgment in the case of Janata Janardan Shikshan Sanstha v. Dr. Vasant P. Satpute 1986 MLJ 260 and also in its judgment in Rasta Peth Education Society, Pune v. Pethkar Udhao Bhimshankar 1995-II- LLJ-908 (Bom) has held that a Civil Court can entertain a civil suit relating to the subject matter on which the appeal under Section 9 of the Act can be filed before the School Tribunal. Thus, the jurisdiction of the Civil Court and the Tribunal has been held to be concurrent. Under Section 9 of the Civil Procedure Code the Courts under the Civil Procedure Code have jurisdiction to entertain all suits of civil nature. It is, thus, clear that the dispute that is raised before the Tribunal under the Act is a dispute of a civil nature and therefore it can be safely said that the Tribunal for the purpose of deciding appeals filed before it can be said to be civil Court for the purpose of Civil Procedure Code and therefore, an order made by the Civil Procedure Code is an order within the meaning of Civil Procedure Code. I have already pointed out above that under Section 36 of the Civil Procedure Code, provisions in the Code relating to execution of decree are applicable to the execution of the order. Therefore, if the order made by the School Tribunal is an order within the meaning of Civil Procedure Code, then the provisions in the Code relating to execution of a decree are available for enforcing or executing an order made by the School Tribunal. Therefore, when the School Tribunal makes an order for reinstatement and for payment of backwages, the Appellant in whose favour such an order is made can definitely approach the School Tribunal, which made the order for execution of that order in the same manner in which the decree under the provisions of the Civil Procedure Code is to be executed. In such situation, either the Tribunal may itself execute the decree or it may transfer the decree for execution to another Court in accordance with the provisions contained in the Civil Procedure Code. It is thus clear to my mind that an order made by the School Tribunal is an order which is executable under the provisions of the Civil Procedure Code.
12. It is further to be seen here that as observed above this Court has already held that the jurisdiction of the Tribunal and the Civil Court is concurrent. Thus, an employee has a choice of either filing a civil suit challenging the action taken against him by the management or filing an appeal before the School Tribunal. After he approaches the Civil Court and the Civil Court finds in his favour then the order of the Civil Court would definitely be executable under the provisions of the Code of Civil Procedure. Therefore, it follows that an order made by the School Tribunal is similarly executable under the provisions of the Code of Civil Procedure. If that is not so held then it would lead to anomalous situation that though the jurisdiction of the Tribunal and the Civil Court is concurrent, a litigant who approaches the Civil Court can get the order in his favour executed by the Civil Court. However, if he, approaches the Tribunal then the order of the Tribunal is not so executable. In my opinion, therefore, this is one more reason why it has to be held that an order made by the School Tribunal is executable under the provisions of the Code of Civil Procedure. The remedy of approaching the School Tribunal against the actions of the management mentioned in Section 9 of the Act was made available to the employees of the Private School by the legislature by enacting the Act. While passing the Act the legislature was, obviously, aware that the remedy of approaching the Civil Court for redressal of the same grievance was available to the employees, therefore, the legislature while keeping the remedy of approaching the Civil Court, in fact, provided by enacting the Act a more effective remedy to the employees. This intention of the legislature is clear from the provisions of Sections 11(3) and 13 of the Act. To say otherwise would amount to attributing an intention to the legislature that it by creation of the remedy of an appeal to the School Tribunal intended to provide a less effective remedy than the one which was already available. To my mind such an intention cannot be attributed to the legislature. It is clear from the preamble of the Act itself that the concern of the legislature for the security is stability of the services of the employees.
13. It is clear from the preamble of the Act that the Act has been enacted by the legislature to regulate the recruitment and conditions of service of employees in certain private schools in the State with a view to providing such employees security and stability of service. For disposal of the appeals filed by the employees of such Private Schools, whose conditions of services are regulated by the provisions of the Act, the legislature has constituted a Tribunal, which is presided over by a person who is holding or has held a judicial office not lower in rank than that of Civil Judge, junior division. The legislature has expressly conferred on such Tribunal the powers of the Appellate Court under the Civil Procedure Code for admission, hearing and disposal of appeals. In my opinion, therefore, it follows that this Tribunal has been conferred with all the powers that are necessary for the implementation of its orders. MAXWELL on INTERPRETATION OF STATUTES contains a statement that "where an Act confers a jurisdiction, it implidely also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cul jurisdictio data est, ea quoqe concessa esse videntur, sine quibus jurisdictio explican non potuit. The Supreme Court in its judgment in the case of Income Tax Officer v. M.K. Mohammad Kunhi AIR 1969 SC 430 has quoted above stated statement from MAXWELL on INTERPRETATION OF STATUTES and has further observed that:
"An instance is given based on Exparte. Martin (1879) 4 QBD 212 at p. 491 that "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, for the power would be useless if it could not be enforced."
It is further to be seen here that the Supreme Court in its judgment in the case of Union of India v. Paras Laminates (P) Ltd. , after referring to the provisions contained in Section 129(c) of the Customs Act 1962 observed in paragraph 8 of its judgment as follows:
"There is no doubt that the Tribunal functions as a Court within the limits of its jurisdiction. It has all the powers conferred expressly by the statute. Furthermore, being a judicial body, it has all those incidental and ancillary powers which are necessary to make fully effective the express grant of statutory powers. Certain powers are recognised as incidental and ancillary, not because they are inherent in the Tribunal, nor because its jurisdiction is plenary, but because it is the legislative intent that the power which is expressly granted in the assigned field of jurisdiction is efficaciously and meaningfully exercised. The powers of the Tribunal are no doubt limited. Its area of jurisdiction is clearly defined, but within the bounds of its jurisdiction, it has all the powers expressly and impliedly granted. The implied grant is, of course, limited by the express grant and, therefore, it can only be such powers as are truly incidental and ancillary for doing all such acts or employing all such means as are reasonably necessary to make the grant effective. As stated in MAXWELL on INTERPRETATION OF STATUTES (eleventh edition) "Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution."
Thus, it is clear to my mind that when the legislature expressly confers power, grant of that statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective, therefore, it has to be held that the Tribunal constituted under the Act has all the powers necessary for enforcing its order. I have already held above that an order made by the School Tribunal is an order within the meaning of the Code of Civil Procedure and it is clear from the provisions of Rule 10 Order 21 of the Civil Procedure Code that when a decree holder desires to execute the decree passed in his favour he has to apply to the Court which passed the decree. Therefore, once an order is made in favour of an employee by the Tribunal, the employee can approach the Tribunal for execution of that order and then it becomes the duty of the Tribunal to either execute the order itself or, if it is found necessary, transfer it for execution to another Civil Court in accordance with the provisions contained in the Code of Civil Procedure.
14. Thus, I find that the order made by the Tribunal in favour of the petitioner is an executable order and therefore it is open to the petitioner to approach the Tribunal which passed the order, for getting that order executed in accordance with the provisions of the Code of Civil Procedure. In the present case, the petitioner has approached this Court by filing the present Contempt Petition without making an attempt to get the Order executed as indicated above. I have also observed above that the question whether the petitioner had any other mode or forum available to him for enforcing the order and whether he has taken any steps in that direction is a relevant consideration for the Court for deciding whether to initiate proceedings under the Contempt of Courts Act.
15. In the present case, the petitioner has not as stated above taken any steps to get this order executed through the Tribunal, therefore, in my opinion, it would not be proper for this Court to entertain the present petition. It may be pointed out here that on behalf of the Respondent an objection is raised that the present contempt petition is barred by limitation, because the proceedings have not been initiated within one year of the alleged breach of the Order. However, it is to be seen that an order was made in Writ Petition No. 6096 of 1996, which until it was clarified by order dated July 2, 1999 stayed the order of reinstatement and backwages passed in favour of the petitioner. The position was clarified on July 2, 1999 and therefore to my mind the Respondents are not justified in saying that the present contempt petition is barred by Section 20 of the Contempt of Courts Act. However, as I have held above that the present contempt petition cannot be entertained for the reasons that have been indicated above, the contempt petition is disposed of. The Petitioner is at liberty to get the order of the School Tribunal executed in accordance with law.