Gujarat High Court
Kishorbhai Dahyabhai Solanki vs Nagjibhai Muljibhai Patel on 7 March, 2002
Equivalent citations: (2002)IILLJ1034GUJ
Author: Jayant Patel
Bench: Jayant Patel
ORDER Jayant Patel, J.
1. In all these matters the common question that arises for the consideration of this Court is:
Whether filing of petition under Contempt of Courts Act, 1971 (hereinafter referred to as "Contempt Act") before this Court directly is the only remedy for the purpose of ensuring that the awards or the other orders passed by the Labour Courts or the Industrial Tribunal, as the case may be, are implemented?
Or Are there provisions made under the Industrial Disputes Act, 1947 (hereinafter referred to as "I.D. Act") for ensuring the execution of awards or orders made by the Labour Courts or Industrial Tribunal?
2. Before we examine the various arguments raised by the learned counsel for the petitioners, it is necessary to consider certain basic facts which are stated in the petitions.
3. In all these petitions, the Labour Courts have passed the awards under the provisions of I.D. Act, and it is the contention of the petitioners that the awards are duly published as per the provisions of the I.D. Act and they have come into operation. It is also the contention of the petitioners that the respondent employers are aware about the awards passed by the Labour Courts and their publication. However, inspite of the same, the awards are not implemented inasmuch as, neither the workmen are reinstated by the employer nor any amount of back wages is paid to them. Under the circumstances, all these petitioners have approached this Court by preferring these contempt petitions under the Contempt Act so as to initiate the proceedings under the Contempt Act and to suitably punish them in accordance with law.
4. At the stage of preliminary hearing, we had called upon all the learned counsel for the petitioners to address on the point as to why this Court should relegate the petitioners to take the recourse including that of execution of award made under the provisions of I.D. Act itself. When we indicated the same, it was also made clear to them that the Court has power to initiate the proceedings under the Contempt Act, but, at the same time, when under the I.D. Act itself sufficient provisions are made by the legislature for the purpose of ensuring that the awards are implemented and executed, this Court would be loath to exercise its powers under the Contempt Act, more particularly, in a case where it is a civil contempt. The other reason for indicating the same was that the contempt jurisdiction of this Court should not be treated as the machinery for the purpose of executing the awards of the Labour Courts or the Industrial Tribunal, as the case may be, and it is only in the rare cases, this Court may initiate the proceedings under the Contempt Act, because the person who has committed breach of the orders passed by the competent Court which is subordinate to this Court. Since the matter was involving large public importance, we had also requested Mr. S.N. Shelat, Learned Advocate General to render assistance so that this Court may be able to resolve the dispute effectively, and we must record that Mr. Shelat had readily rendered his assistance.
5. The other reason for examining this issue at the preliminary hearing was that if the powers of this Court under the Contempt Act are used as an executing Court, then, in those circumstances, this Court would be required to initiate proceedings under the Contempt Act, even though, normal procedure or regular procedure for execution of decree are available under the CPC. Therefore, keeping in mind the aforesaid aspects, we are inclined to examine the wider question on the point that when the I.D. Act itself provides the remedy for execution of the award, this Court should normally not initiate the proceedings under the Contempt Act in sound exercise of its judicial discretion.
6. Ms. D.T. Shah, learned advocate appearing for the petitioner in Misc. Civil Application No. 132/2002 contended that as per law laid down by the Division Bench of this Court in the matter of Jaisinh Jodhabhai Vaisya v. Growfed Employees Union, reported in 2001-II-LLJ-511 that the Labour Courts and Industrial Tribunal are the Courts subordinate to this Court and therefore this Court has power to punish under Article 215 of Constitution and under Contempt Act for breach of or non-compliance of the orders or awards passed by the Labour Court or the Industrial Tribunal. Therefore, in her submission, the present petitions under Contempt Act are maintainable, and therefore, following the said judgment this Court should exercise the powers under the Contempt Act for the purpose of implementation of awards of the Labour Courts. Ms. Shah has further contended that there is no provision under I.D. Act as at par with the provisions under Section 193 of Bombay Industrial Relations Act, 1946, and therefore, the Labour Court cannot make a reference to this Court for initiating the proceedings under the Contempt Act unlike the Labour Court exercising powers under Bombay Industrial Relations Act. Therefore, this Court should initiate proceedings under Contempt Act in case where award has been made by the Labour Court under I.D. Act and the same is not implemented by the party which is bound by the award.
7. Ms. Shah has further relied upon the judgment of the Apex Court in the matter of Management of Mysore Structurals Ltd. v. State of Karnataka, reported in AIR 2002 SC 53 : 2001-II-LLJ-1644 to contend that if the award is not implemented by the employer, though the remedy is provided under Section 29 of I.D. Act or 33C of the I.D. Act, it is not necessary in every case the Labour Commissioner would exercise powers for the purpose of filing prosecution against the employer. In the submission of Ms. Shah the remedy provided under Section 29 of the I.D. Act is illusory in as much as the prosecution has got to be filed by the Officer authorised by -the appropriate Government in this behalf and in the contention of Ms. Shah normally the prosecutions are not being filed even if the complaints are made by the workmen concerned that he has not been reinstated in service by the employer even though the award has already come into operation. In the contention of Ms. Shah under the I.D. Act for the purpose of implementing the award so far as reinstatement is concerned, the only mode provided is the prosecution which is not under control of the workman and therefore it is no remedy in the eye of law. Ms. Shah further contended that for the purpose of implementing the award so far as it relates to reinstatement of concerned workman, there is no other remedy provided under the I.D. Act. However, she contended that at the most for the purpose of back wages, the remedy can be read under Section 33C of the I.D. Act which provides for the recovery application. Ms. Shah also contended that once the award is passed the workman gets right to work and his right cannot be substituted by monetary benefits in as much as if he is not reinstated in service, the employer cannot say that the workman should be satisfied with the wages only. In the contention of Ms. Shah on account of his right to work, if the workman concerned is reinstated in service, further benefits of confirmation in service, promotion etc. may also accrue which may not be available to the workman concerned if the remedy of recovering monetary benefits is resorted to simpliciter without actually working after reinstatement. Ms. Shah also relied upon the judgment of the Apex Court in the matter of Supreme Court Bar Association v. Union of India reported in AIR 1998 SC 1895 : 1998 (4) SCC 409. Ms. Shah further contended that once the award is published as per the provisions of I.D. Act the proceedings before the Labour Court under the I.D. Act are concluded and thereafter the said Court under the I.D. Act becomes functus officio and hence under the I.D. Act there is no provision for making application to the Court concerned complaining the breach or non-implementation of the award and in the submission of Ms. Shah on account of the fact of becoming functus officio no reference can be made for the alleged breach of the award passed by the Labour Court even if the Labour Court finds that the breach is committed.
8. Mr. C.L. Soni, learned advocate appearing in Misc. Civil Application No. 186/2002 while adopting the contentions raised by Ms. Shah further raised contention that on true and correct interpretation of Section 10 of the Contempt Act, the language is that the Court shall exercise the power and therefore it is mandatory for this Court to exercise power under the Contempt Act when the breach of the order of the Court subordinate to it brought to its notice. Mr. Soni also contended that the remedy of Section 29 of filing prosecution is no remedy because the same is not under the control of the workman concerned nor the workman concerned can compel the concerned competent officer to lodge complaint.
9. Mr. D.S. Vasavada addressed the Court as an intervener for supporting the case of the petitioners since we had permitted him to do so. Mr. Vasavada drew the attention of this Court to the decision of the Division Bench of this Court in the matter of Bipinchandra P. Singwala v. Navin Flourine Industries, reported in 22 GLR 1070 and contended that as observed by the Division Bench of this Court in para 4 of the said judgment there are special circumstances to initiate the proceedings under the Contempt Act when it is brought to the notice of this Court that the award of the Labour Court or the Industrial Tribunal is not complied with. He further relied upon the judgment of the Division Bench of this Court in the matter of Shankerpuri Chanpurti Goswami v. Shaikh Abdulhakim Asmadmahamad, reported in 1985-I-LLJ-281 to contend that even if the remedy of prosecution is available under the I.D. Act the same is no ground for negativing the submission that the contempt proceedings should be initiated.
10. Mr. S.N. Shelat, learned Advocate General had drawn the attention of this Court on various relevant provisions of the I.D. Act as well as the rules. Mr. Shelat has pointed out that formerly i. e. prior to the enactment of I.D. Act the decree for reinstatement in service was unknown to the civil Court and therefore unlike the civil Court the special powers have been confirmed under the I.D. Act upon the Labour Court and the Industrial Tribunal to grant relief of reinstatement. In support of his submission he has relied upon the judgment of the Bombay High Court in the matter of Western India Automobile Association v. Industrial Tribunal, reported in 1949-I-LLJ-245 (Federal Court). Mr. Shelat further pointed out that while considering the provisions of I.D. Act for the purpose of powers of Labour Court or the Tribunal to grant the relief of reinstatement the Apex Court has also considered that there is inbuilt mechanism provided under the I.D. Act itself for the purpose of enforcement of the award passed by the Court. In support of the said submission, Mr. Shelat relied upon the aforesaid judgment. Mr. Shelat also drew our attention to the law laid down by the Apex Court considering the scope and ambit of powers of the Labour Court under Section 33C(1) and 33C(2) of the I.D. Act in the matter of Punjab National Bank Ltd. v. K.L. Kharbanda, reported in AIR 1963 SC 487 : 1962-I-LLJ-234 and in the matter of Central Bank of India Ltd. v. P.S. Rajagopalan, reported in AIR 1964 SC 743 : 1963-II-LLJ-89 and he submitted that when the workman is not reinstated in service he can recover the monetary benefits by moving appropriate application under Section 33C of the I.D. Act and if the employer has not reinstated the workman in service by implementing the award he is only entitled to monetary benefits of wages for which the specific mode has been provided under the I.D. Act which can be said to be a mode provided for execution of the award. Mr. Shelat drew our attention to the judgment of this Court in Girishchandra R. Bhatt v. Dineshbhai N. Sanghvi, reported in 1996 (1) GLR 523 to point out that the Court which has power to pass the order must have by necessary implication power to implement and execute the award and he further submitted that the award would be binding on the parties unless and until another award is passed by the competent Court.
11. Mr. Shelat also drew our attention to the judgment of the Apex Court reported in the matter of Life Insurance Corporation of India -v. D.J. Bahadur reported in AIR 1980 SC 2181' : 1981 (1) SCC 316 : 1981-I-LLJ-1 and submitted that as per the in-built mechanism under the I.D. Act and more particularly in view of Section 19(2)(6) of the I.D. Act the award or the settlement continues to regulate the relation between the parties till the same is replaced by new one and therefore there would not be any vacuum and the award can be implemented even after the period as provided under Section 19(2) of the I.D. Act. Mr. Shelat also drew our attention to the decision of the Full Bench of this Court in the matter of Shaikh Mohammadbhikhan Hussainbhai v. Manager, Chandrabhani Cinema, reported in AIR 1986 Guj 209 and submitted that it is mandatory for the State Government to publish the award under Section 17(1) of the I.D. Act and once the award already having been passed and published it would continue to remain in operation and binding on the parties to it and thereafter also until the same is substituted by the subsequent award or is reversed by the Higher Forum. Learned Advocate General, Mr. Shelat submitted that it cannot be said that the workman has acquired any right to work on account of the award having been passed in his favour for reinstatement and in his submission after the enactment of Section 17B of the I.D. Act (Act No. 46 of 1982) which has come into force from August 21, 1984, even the legislature has recognised the right of the workmen to get the wages only pending the proceedings before the higher forum and it cannot be said that the workman cannot be compensated in terms of payment of wages, if in any case, the employer has not reinstated him in service for one reason or other and in his submission what at the most can be claimed by the workman is the wages and not beyond that. Mr. Shelat further submitted that Section 10 of the Contempt Act makes a declaration of power of the High Court to punish contempt of subordinate Courts which the High Court was and is otherwise possessing under Constitution as per Article 215 and therefore on correct reading of Section 10 of the Contempt Act it cannot be said that it is mandatory and/or obligatory on the part of the High Court to exercise powers of contempt. In his submission Section 10 of the Contempt Act cannot be read so as to take away the sound judicial discretion of the High Court of whether to exercise contempt jurisdiction or not.
12. Having taken into consideration the aforesaid submissions made by the learned counsel, we have first to consider as to whether it is mandatory for the High Court to exercise the powers under Section 10 of the Contempt Act as sought to be canvassed by Mr. C.L. Soni, learned advocate appearing for one of the petitioners. Section 10 of the Contempt Act reads as under:
"10. Power of High Court to punish contempt's of subordinate Courts:
Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of Courts subordinate to it as it has and exercises in respect of contempts of itself.
Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a Court subordinate to it where such contempt is an offence punishable under the Indian Penal Code."
At this stage, it would be relevant also to refer to the provisions of Article 215 of the Constitution which reads as under:
"Article 215: Every High Court shall be a Court of record and shall have all the powers of such a Court including the power to punish for contempt of itself."
Therefore, the powers to punish for the contempt are conferred upon the High Court by the Constitution. Therefore, the Contempt Act is to be read and interpreted accordingly. On true construction of Section 10 of the Contempt Act, it transpires that by using the language in Section that 'every High Court shall have and exercise the same jurisdiction' is meant by the legislature to make a declaration of power of the High Court, which is, even otherwise, conferred by the Constitution and the words shall exercise the same jurisdiction cannot be read so as to give a mandate by the legislature to the High Court to exercise the jurisdiction in all cases. At this stage, it would be worthwhile to refer to the decision of the Apex Court in the matter of Baradakanta Mishra v. Mr. Justice Gatikrushna Misra, C.J. of Orissa H.C. reported in AIR 1974 SC 2255 : 1975 (3) SCC 535 wherein the Apex Court speaking through P.N. BHAGWATI, J. (As his Lordship then was) observed that "No one has a statutory or common law right to say that he is entitled as a matter of course to an order for committal because the alleged contemner is guilty of contempt. All that he can do is to move the Court and draw its attention to the contempt alleged to have been committed and it will then be for the Court, if it so thinks fit, to take action to vindicate its authority and commit the alleged contemner for contempt. It is for the Court in the exercise of discretion to decide whether or not to initiate a proceeding for contempt. .....There is no right in any one to compel the Court to initiate a proceeding for contempt even where a prima facie case appears to have been made out. The same position obtains even after a proceeding for contempt is initiated by the Court on a motion made to it for the purpose." The Apex Court further observed that "if right is created to the party who moves or draws the attention of the Court, the Court itself decides not to initiate the proceedings for contempt or refuse to initiate the proceedings for contempt, there is no right conferred even to such a party for preferring appeal". Therefore, it cannot be said at all that it is mandatory for the High Court to exercise powers to initiate proceedings under the Contempt Act, but once the contempt or breach of the order of the Court subordinate to it is brought to the notice by moving appropriate application, it is for the High Court to exercise its discretion to decide whether or not to initiate the proceedings for contempt. Therefore, the submission of Mr. Soni that it is mandatory for the High Court to exercise the powers of contempt is absolutely without substance and deserves to be rejected on the face of it,
13. The next question which is required to be examined is whether the I.D. Act is a complete code in itself which provides for the remedy of enforcement of execution of awards passed by the Labour Courts and the Industrial Tribunal or not. If we proceed to examine the inbuilt mechanism of the I.D. Act, Section 10 of the I.D. Act provides for reference of disputes for adjudication by the appropriate Government. Section 11 provides for the procedure and powers of Conciliation Officer, Boards, Courts and Tribunals. Section 11A of the Act provides for powers of Labour Courts, Tribunals etc. to give appropriate relief in case of discharge or dismissal of workmen. Section 15 of the Act provides for the duties of Labour Courts, Tribunals and National Tribunals and to submit its awards to the appropriate Government. Section 17 of the Act provides for publication of reports and awards. Section 17(1) of the I.D. Act provides that subject to provisions of Section 17A the award published under Sub-section (1) shall be final and shall not be called in question in any manner whatsoever. Therefore, the award would attain the finality in view of Section 17(2) of the I.D. Act. Section 17A of the I.D. Act provides for the commencement of the award. It is provided under Section 17-A(1) of the I.D. Act that the award shall become enforceable on the expiry of 30 days from the date of its publication under Section 17. Sub-section (4) of Section 17A provides that subject to the provisions of Sub-section (1) and Sub-section (3) regarding the enforceability of the award, the award shall come into operation with effect from such date as may be specified therein, but where no date is 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. Section 19(3) of the I.D. Act provides that an award, subject to the provisions of this section remain in operation for a period of one year from the date on which the award becomes enforceable under Section 17A with the enabling power of the appropriate Government to reduce or to extend the period of operation not exceeding three years. Sub-section (6) of Section 19 provides that the award shall continue to be binding on the parties until a period of two months has elapsed from the date on which notice is given by any party bound by the award to the other party or parties intimating its intention to terminate the award.
14. In view of the aforesaid provisions of the I.D. Act a question might arise as to whether the award otherwise binding on the parties to it, would remain in operation for a period exceeding one year or three years or until the notice as contemplated under Section 19(6) of the I.D. Act is issued by either party or not. At this stage, it will be worthwhile to refer to the decision of the Apex Court in the matter of LIC (supra) wherein at para 32 of the said judgment the Apex Court has observed as under 1981-I-LLJ at p. 15:
"The core question that falls for consideration is as to whether the settlements of 1974 are still in force. There are three stages or phases with different legal effects in the life of an award or settlement. There is a specific period contractually or statutorily fixed as the period of operation. Thereafter, the award or settlement does not become non est but continues to be binding. This is the second chapter of legal efficacy but qualitatively different as we will presently show. Then comes the last phase. If notice of intention to terminate is given under Sections 19(2) or 19(6) then the third stage opens where the award or settlement does survive and is in force between the parties as a contract which is superseding the earlier contract and subsists until a new award or negotiating settlement takes its place. Like Nature, Law abhors a vacuum and even on the notice of termination under Section 19(2) or (6) the sequence and consequence cannot be just void but a continuance of the earlier terms, but with liberty to both sides to raise disputes, negotiate settlements or seek a reference and award. Until such a new contract or award replaces the previous one the former settlement or award will regulate the relations between the parties. Such is the understanding of industrial law atleast for 30 years as precedents of the High Courts and of this Court bear testimony. To hold to the contrary is to invite industrial chaos by an interpretation of the I.D. Act whose primary purpose is to obviate such a situation and to provide for industrial peace. To distil from the provisions of Section 19 a conclusion diametrically opposite of the objective, intendment and effect of the Section is an interpretative stultification of the statutory ethos and purpose. Industrial law frowns upon a lawless void and under general law the contract of service created by an award or settlement lives so long as a new lawful contract is brought into being. To argue otherwise is to frustrate the rule of law. If law is a means to an end - order in society - can it commit functional harakiri by leaving a conflict situation to lawless void?"
After considering various decisions, the Apex Court has, at para 43, held that "law lucid and the justice manifest on termination notice or notice of change the award or settlement does not perish but survives to bind until reincarnation, in any modified form, in a fresh regulation of conditions of service by a settlement or award." A reference may also be made to the judgment of the Full Bench of this Court in the matter of Shaik Mohammadbhikhan (supra) wherein at para 31 of the said judgment the Full Bench of this Court has observed as under:
"It was submitted that under certain circumstances, appropriate Government, if it is a party to the dispute can either cancel or modify the award and Central Government can equally do so in case of award of National Tribunal even though it may not be a party to the dispute and, therefore, the end product by way of award even after adjudication cannot be said to be a decisive and determinative conclusion of the proceedings. It is not possible to agree with this contention for obvious reasons. Firstly, so far as adjudication of disputes between employees and employer other than in cases in which appropriate Government is party viz., as employer, is concerned, adjudication procedure is complete moment the award is pronounced by the Labour Court or the Tribunal, as the case may be. Government has no authority or power to tinker with the award."
In view of aforesaid position of law, the only conclusion which can be arrived at is that the award once published and unless modified or reversed by any higher forum, remains binding on the parties to the award until the same is altered by any fresh settlement or upon the dispute raised by either party.
15. The next question which requires to be considered is whether the Act itself provides sufficient measures for the purpose of enforcement and/or execution of awards passed by the Labour Courts or Tribunals. In case of Western India Automobile Association (supra) the Federal Court observed as under at p. 255 of 1949-I-LLJ-245:
"To our mind the Court is not concerned with the effects of an order, unless, of course, it is wholly incapable of enforcement. An order for reinstatement contained in an Award can certainly be enforced by the coercive machinery provided by the statute."
In the case of Punjab National Bank Ltd. (supra) the Apex Court for the purpose of scope and ambit of Section 33 of the Act has, inter alia, observed as under at p. 238 of 1962-I-LLJ-234:
"The crucial words which we have to interpret are 'any benefit which is capable of being computed in terms of money'. The 'benefit' is of wide import, and the dictionary meaning thereof is 'advantage, profit'. This would naturally include monetary advantage or monetary profit. There is no reason, therefore, for excluding 'monetary benefits' from the word 'benefit' used in this sub-section unless it is clear from the words used that monetary benefits were not intended to be included in the wide word 'benefit' used therein. It is urged on behalf of the appellant that we should exclude monetary benefits from the meaning of this word in the context of this sub-section because the word is qualified by the words 'which is capable of being computed in terms of 'money'. This, it is urged, suggests that the meaning of the word 'benefit' here excludes monetary benefits, for, according to the appellant, there would be no sense in computing monetary benefits in terms of money. But, this contention overlooks the fact that the word used in the qualifying clause is 'computed' and not 'converted'. If the word had been 'converted' and the clause had read 'which is capable of being converted in terms of money' there would have been a clear indication that the benefit which was to be converted in terms of money was other than monetary benefits. The dictionary meaning of word 'convert' is 'to change by substituting an equivalent'; and if the word 'convert' has been used in the qualifying words, the argument that the word 'benefit' only means non-monetary benefit might be incontrovertible. But the word in qualifying clause is 'computed' and the dictionary meaning of the word 'compute' is merely 'to calculate'. Therefore, where the benefit to which a workman may be entitled has not already been calculated, for example, in an award which confers on him the benefit, it stands to reason that Sub-section (2) would apply for computation of such benefit, if there is dispute about it. Further, if we compare Sub-section (1) with Sub-section (2) of this Section, it will appear that Sub-section (1) applies to cases where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter VA and that contemplates that the amount is already computed or calculated or at any rate there can be no dispute about the computation or calculation while Sub-section (2) applies to cases where though the monetary benefit has been conferred on a workman under an award, it has not been calculated or computed in the award itself, and there is dispute as to its calculation or computation.
It cannot therefore be said looking to the words used in Sub-section (2) that it only applies to cases of non- monetary benefit which has to be converted in terms of money. It appears to us that it can also apply to monetary benefits to which a workman may be entitled which have not been calculated or computed say, for example, in an award and about their calculation or computation, there is dispute between the workman and the employer."
While interpreting the aforesaid provision of the Act the Apex Court further observed as under:
"It is clear therefore that Section 33C is a provision in the nature of execution and where the amount to be executed is worked out (for example in an award) or where it may be worked out without any dispute, Section 33C will apply. But where the amount due to a workman is not stated in the award itself and there is a dispute as to its calculation Sub-section (2) will apply and the workman would be entitled to apply thereunder to have the amount computed provided he is entitled to a benefit, whether the monetary or non-monetary, which is capable of being computed in terms of money."
A reference may also be made to the decision of the Apex Court in the matter of Central Bank of India (supra). In para 15 it was observed that "the legislative history of the I.D. Act is for the investigation and settlement of industrial disputes on the basis of collective bargaining, the legislature recognised that individual workman should be given a speedy remedy to enforce their existing individual rights, and so, inserted Section 33A in the Act in 1950 and added Section 33C in 1956." The Apex Court further observed that "having regard to the fact that the policy of legislature in enacting Section 33C is to provide a speedy remedy to the individual workman to enforce or execute their existing rights, it would not be reasonable to exclude from the scope of this Section cases of existing rights which are sought to be implemented by individual workmen." The Apex Court further observed that "the claim under Section 33C clearly postulates that the deterrmination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an inquiry into the existence of the right and such an inquiry must be held to be incidental to the . main determination which has been assigned to the Labour Court by Sub-section (2)." The Apex Court further observed at Para 17 that "the scope of Section 36A is different from the scope of Section 33C because Section 36A is not concerned with the implementation or execution of the award at all, whereas that is the sole purpose of Section 33C. Atpara 18 of the said judgment the Apex Court observed as under 1963-II-LLJ-89 at p. 96 :
"Besides, there can be no doubt that when the Labour Court is given the power to allow an individual workman to execute or implement his existing individual rights, it is virtually exercising execution powers in some cases, and it is well settled that it is open to the Executing Court to interpret the decree for the purpose of execution. It is of course, true that the Executing Court cannot go beyond (sic) the decree nor can it add to or subtract from the provisions of the decree. These limitations apply also to the Labour Court, but like the Executing Court, the Labour Court would also be competent to interpret the award or settlement to which a workman bases his claim under Section 33C. Therefore, we feel no difficulty in holding that for the purpose of making the necessary determination under Section 33C, it would, in appropriate cases, be open to the Labour Court to interpret the award or settlement on which the workman's right rests".
The Apex Court also inter alia observed that:
"the conclusion is that the scope of Section 33C is wider than Section 33C and cannot be wholly assimilated with it".
In view of the aforesaid conclusion also, it has got to be concluded that as per the inbuilt mechanism of the Act after the award having been passed by the Labour Court or the Industrial Tribunal, the Act provides:
(i) The executing machinery for the purpose of its enforceability as per Section 29 read with Section 34 of the Act for conviction and by imposing penalty as provided under Section 29 of the Act.
(ii) The execution of the award by a special mode is provided by independent proceedings as contemplated under Section 33C of the Act. The said executing machinery or the executing power of the Labour Court includes the power for recovery money by issuing certificates and such amount has to be recovered as per Land Revenue Code.
16. The next contention which is required to be considered as sought to be canvassed by the learned advocate appearing for petitioners is that the inbuilt mechanism as provided under I.D. Act for the enforcement of the award by coercive machinery and for the execution of the award by moving appropriate application under Section 33C is illusory and it is further contended that it is, in reality, absolutely not effective remedy. In furtherance to the said contention it was also submitted by the learned counsel appearing for the petitioners that Section 29 read with Section 34 of the I.D. Act empowers the competent officer to lodge complaint and the workman has no direct role in the same and it was submitted that as per the experience of large number of workmen, even though the action is complained that breach is committed or that the award is not complied with, the Government or the competent officer of the Government are not taking immediate steps for filing prosecution against the erring employer concerned. It was also submitted that even if it accepted for the sake of argument that for the purpose of execution of the award, the machinery provided under Section 33C of the I.D. Act is to be resorted, then also in the submission of the petitioners, neither the Labour Court decides such recovery application within a reasonable time nor the collector takes steps immediately for the purpose of proceeding to recover the amount under Land Revenue Code after such certificates are issued by the Labour Court. In the submission of the petitioners, that is the reason why the workmen and the parties to the award who are adversely affected by the breach of non-compliance are constrained to approach this Court invoking the jurisdiction of this Court under Contempt Act and therefore in the submission of the petitioners in view of the practical difficulties being faced by the workmen concerned it is very necessary that this Court should exercise powers under the Contempt Act for the breach of the award.
17. Before we deal with said contention, we state that merely because there is failure on the part of the competent officer to lodge prosecution, it cannot be said that the remedy becomes illusory nor can it be said to be a valid ground to hold that the remedies have become illusory and therefore the only remedy is to invoke the jurisdiction of this Court under the Contempt Act because since the Labour Courts are not deciding the matters of recovery of applications within reasonable time or that the Collectors are not proceeding to recover the amount even after receipt of certificates. At the same, the workmen or the parties to the award cannot be left to a position that even if the remedy lies they may not be in a position to invoke the same or that even if it is there the same would be rendered illusory. The position of law so far as the status of the Labour Court is concerned prior to 1998 was that the Labour Court or the Industrial Tribunals constituted under the I.D. Act were not falling within the administrative control of this Court. However, as laid down by the Apex Court in the case of State of Maharashtra v. Labour Law Law Practitioners' Association, reported in AIR 1998 SC 1233 : 1998 (2) SCC 688 : 1998-I-LLJ-868, now the Labour Court also falls under the Administrative Control of this Court as provided under Article 234 of the Constitution. In view of the law laid down by the Apex Court in the matter of State of Maharashtra (supra) the Labour Courts and the Industrial Tribunals exercising powers under the I.D. Act are not only falling within the judicial supervision of this Court under Articles 226 and 227 of the Constitution but are also falling within the administrative control of this Court as provided under Article 234 of the Constitution. Therefore, the matter is required to be examined from that angle to the extent that it is an award by the Court (Labour Court & Industrial Tribunal in the present case) which is not only judicially subordinate to this Court but also under the administrative control of this Court and when the awards passed by the Labour Courts and Industrial Tribunals are not implemented or executed or any breach thereof is committed this Court is having powers not only to issue directions on judicial side but also on administrative side to ensure that the machinery which is provided under the Act is properly given effect to and the purpose for which the provisions have been made under the Act are fulfilled by making the remedy more effective. In this regard we had called upon the Learned Advocate General Mr. S.N. Shelat representing the State of Gujarat for assisting the Court and we must record that the Learned Advocate General Mr. Shelat after taking instructions from the Secretary of the concerned department of the State Government has made the following statement:
"On behalf of the State Government, it was submitted by the Advocate General that the recovery through revenue process is not affected because the cases that come up before the Recovery Officers are in the nature of bad debt, the Firm or Company being in bad financial state. As a result, sometimes it appears that the recovery is not affected as it ought to be. However, the Advocate General stated that the State Government would instruct the concerned officials dealing with the revenue recovery to take effective steps for recovery under the award as expeditiously as possible, on the receipt of revenue recovery certificate pursuant to the order passed by the Labour Courts. The Advocate General also stated that the Government will also consider about setting up of Special Cells subject to financial constraint, for such recovery process arising out of awards made by the Labour Courts."
Mr. Shelat submitted before this Court that it will not happen that there is no machinery available at the State Government level more particularly at the District Collectorate level for the purpose of recovery on the recovery certificates issued by the Labour Court in exercise of powers under the I.D. Act. Mr. Shelat, Learned Advocate General has further submitted that to begin with and with a view to see that the object of the Act is achieved, more particularly, the executing machinery as provided under Section 33C of the Act, the State Government can make proper arrangement to have the offices of the Collectorate for Ahmedabad, Vadodara, Surat and Rajkot for the speedy recovery of the amounts due under recovery certificates issued by the competent Court. We must record the sense of appreciation and cooperation extended by the State Government through the learned Advocate General and we also direct that the Secretary of the concerned department of the State Government will see to it that the stand taken by the learned Advocate General and referred hereinabove is complied with in its true spirit by making arrangements initially at the aforesaid four districts and subsequently considering the quantum of work the additional establishments be given so that it may not happen that even if the recovery certificates are issued by the Labour Courts or the Industrial Tribunal under the I.D. Act the monetary benefits are not released on account of want of machinery available at the District Collectorate level.
18. There is also considerable force in the contention raised by the petitioners that the Labour Courts are not deciding the recovery applications made by the workmen under Section 33C of the I.D. Act for a long time. In this regard it is worthwhile to note that as per Section 33C of the I.D. Act there is a mandate of the legislature that the Labour Court should decide such application within a period not exceeding 3 months. Therefore, it has got to be held that it is obligatory on the part of the Labour Court to take up the recovery application under Section 33C of the I.D. Act which may be made by workman concerned on priority basis and must make full efforts to see that such recovery applications are heard and disposed of by the Labour Court within a period not exceeding three months. It will be the duty of the Presiding Officer of the Labour Court to decide such applications within a period not exceeding three months and if such application is not decided within three months as per the mandate of the legislature it shall also be the duty of the Presiding Officer of the Labour Court to record the reasons for not deciding the same within a period of three months and such reasons must be extraordinary. However, so far as the recovery application under Section 33C of the I.D. Act is concerned, the time limit for its decision has not been prescribed, but from the perusal of the language of Section 33C of the I.D. Act it transpires that the limitation provided for making such application is one year from the date on which the money becomes due to the workman concerned from the employer and therefore the legislature has provided for making application within one year from the date on which the amount becomes due. It can reasonably be construed that such an application should be decided by the Court concerned within a reasonable period which can be said to be of six months from the date of such application. In our view there is no reason for not to read that such an obligation upon the Court concerned or the Presiding Officer of the Court concerned to decide such application under Section 33C within a period of six months and we are of the view that if such an obligation is read the very object with which the Section 33C is enacted would be served.
19. In the above view of the matter, it can very well be said that the execution proceedings of the award for the purpose of recovery of monetary benefits are not only inbuilt mechanism under the I.D. Act itself, but there are sufficient effective modes provided under Section 33C of the I.D. Act, to ensure that if the award is not complied with the concerned workman can submit application for recovery of monetary benefits by way of making recovery application to the Labour Court and such applications are required to be decided within stipulated time as indicated earlier and not only that but after the recovery certificates are issued by the Labour Court the same has got to be realised through the Collector under Land Revenue Code which is a fast mode of recovery than a debt of a private party. We are also of the view that when the State Government has made statement for providing effective machinery for execution of recovery certificates and when we have directed the State Government to act as indicated and observed earlier, it cannot be said that such remedy, as provided under Section 33C by the statute itself would be rendered illusory.
20. At this stage, on behalf of the petitioners, it was also contended that after the award, if the reinstatement is not made by the employer the workman will be deprived of his right to work and further that it is doubtful whether monetary benefits for the period during which the reinstatement is not made can be claimed by the workman either under Section 33C(1) or 33C(2) of the I.D. Act. We are not at all impressed by such contention of the petitioners because we indicated earlier and observed hereinabove the law already settled by the Apex Court in the matter of Punjab National Bank Ltd. (supra) that under I.D. Act there is wide power in the Labour Court to recover the monetary benefits under the award and also incidental benefits thereto. If for one reason or the other the workman is not reinstated in service and if the award is published and the operation of the same has started, then the workman should claim the salary for the period during which he was not reinstated in service by the employer unless the employer shows that the workman did not offer himself for services though the employer was ready to reinstate him in service. When the legislature had also found it proper to compensate the benefits of the award in terms of recovery of money, we cannot accept the contention that the workman has a right. Such a right to work cannot be read in the "award made by the Labour Court or the Tribunal if the workman is otherwise compensated in terms of money. In view of such reinstatement as directed by Court the workman can apply for recovery of monetary benefits for the period during which he was not reinstated by the employer pursuant to the award. As per mode provided under Section 33C of the I.D. Act it cannot be said that the reinstatement cannot be taken care of in the proceedings under Section 33C of the Act.
21. Another mode is also provided for enforceability of award under Section 29 of the I.D. Act. The perusal of Section 29 of the I.D. Act shows that "if any person who commits a breach of any term of any settlement or award which is binding on him under this Act, shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both." It further provides that if the breach is a continuing one, the fine may be imposed of Rs. 200/- for every day during which the breach continues and the Court may also further direct the fine so realised to be paid to the injured party by way of compensation. Therefore, in view of Section 29 of the I.D. Act not only punishment is provided but a fine equivalent to the amount of monetary benefits can be imposed and such fine can also be directed to be paid to the injured party as compensation. Therefore, taking the case of the award for reinstatement in service if the workman is not reinstated in service, after the award becomes enforceable the employer makes himself liable for the punishment and fine as provided under Section 29 of the I.D. Act. In our view the provision made under Section 29 of the Act for punishment of imprisonment for a period of six months and the imposition of fine cannot be said to be a less coercive machinery for the breach of settlement or award. However, at that stage, the petitioners contended that Section 29 of the I. D. Act can be resorted to by filing prosecution through the Government Officer only as provided under Section 34 of the I.D. Act and the workman concerned is not entitled to file the prosecution directly and therefore such remedy cannot be said to be made available to the workman for enforcing the award. It was further contended that after the complaints are filed by the workman to the competent officer of the State Government in reality no actions are being taken for filing prosecution under Section 29 of the Act and therefore also such remedy is illusory. It is true that for filing prosecution the power is with the competent officer of the appropriate Government and the workman cannot directly file the complaint, but, at the same time, the power of the competent officer of the State Government of filing prosecution cannot be read as solely negative or arbitrary powers nor can it be read that if the breach is brought to his notice, it is his own discretion as to whether prosecution under Section 29 of the I.D. Act should be granted or not.
22. At this stage, we had called upon the learned Advocate General Shri Shelat to make the stand of the Government clear and we must record with appreciation that learned advocate General Mr. Shelat after obtaining instructions from the concerned department of the State Government has made the following statement:
"So far as the application under Section 29 for prosecution is concerned, it has to be appreciated that notices are required to be issued upon the employers before passing appropriate orders and therefore it may not be possible to frame any deadline for passing appropriate orders under Section 29 read with Section 34 of the I.D. Act. The Advocate General however, stated that any application under Section 34 read with Section 29 for prosecution also shall be expeditiously disposed of by the concerned officials as far as possible, within a period of three months from the date of receipt of the application."
23. Keeping in view the aforesaid approach of the State Government and the object of the Act and the intention of the legislature to see that the award is having binding character and to see that it is being enforced by all parties to it, the coercive machinery as provided under Section 29 read with Section 34 is to be given proper effect. In our view, if the workman or either party makes a complaint together with copy of the award or settlement to the competent officer in writing regarding the breach of the settlement or award made by the other party, normally, it is obligatory for such competent officer to initiate action by intimating the other party regarding the complaint and seek his explanation within 15 days from the date of receipt of the complaint. If such explanation is rendered, it is also necessary for such competent officer to take decision within a period of 15 days thereafter and to make a report to the appropriate Government seeking sanction for filing prosecution. After the report for seeking the sanction is made the competent authority should within a reasonable time which would normally not exceed 30 days take decision for lodging prosecution and while taking decision the competent authority has to bear in mind the object of the Act and the obligation of the State to ensure that the awards are complied with and proper peace is brought in the industry as intended by the Act itself. If the prosecution is to be launched by the competent authority the same should be immediately forwarded to the competent officer and after receipt of such the competent officer must launch the prosecution under Section 29 of the Act within a reasonable time which normally should not exceed 30 days. However, if the competent authority declines to grant sanction the reasons thereof shall be recorded and copy of the decision shall be given to the workman. Thereafter, the workman will have the remedy of approaching proper higher forum or higher authority. We also expect the State Government to take effective measures to ensure that provisions of Section 29 read with Section 34 are properly given effect and it required the State Government may also issue appropriate directions or guidelines or instructions to competent officer to file prosecution and competent authority having powers to grant sanction for filing prosecution.
24. We may also make it clear that the aforesaid observations are made after hearing learned Advocate General who on behalf of the State Government has submitted that the State Government is prepared to take effective for ensuring that coercive measures as provided under the Act is not rendered illusory. The statements made by the learned Advocate General Shri Shelat which are reproduced above are in writing and are placed on record.
25. In view of the above it is clear that under I.D. Act itself there is inbuilt mechanism provided for the purpose of enforcement and execution of awards passed by the Labour Courts and the Industrial Tribunals and the award passed by the Labour Court is more or less at par with the decrees of the Civil Court but the only distinction is that the monetary benefits of the award or the settlement is only to be recovered under Land Revenue Code whereas in the decree of Civil Court the other modes are also permissible. Further, non-compliance of award would invite criminal prosecution. However, providing for the recovery under the Land Revenue Code is made a vigorous mode of recovery and therefore it is clear that in the Act itself sufficient and enough measures have been provided for execution of award.
26. At this stage, a reference may be made to the decision of the Supreme Court in the matter of R.N. Dey v. Bhagyabati Pramanik, reported in 2000 (4) SCC 400 wherein the Apex Court had an occasion to consider the question regarding initiation of proceedings under the Contempt Act when the award passed by the competent Court under Land Acquisition Act is not complied with. The High Court had initiated proceedings under Contempt Act and directed the appellants to deposit the amount of compensation and thereafter the Collector had moved application to the High Court for vacating the rule issued in the contempt proceedings. However, the High Court directed that the application made by the Collector to be heard with appeal against which the appellant moved the Apex Court. The Apex Court observed as under:
"We may reiterate that the weapon of contempt is not to be used in abundance or misused. Normally, it cannot be used for execution of the decree or implementation of an order for which alternative remedy in law is provided for. Discretion given to the Court is to be exercised for maintenance of the Court's dignity and majesty of law. Further, -an aggrieved party has no right to insist that the Court should exercise such jurisdiction as contempt is between a contemner and the Court..... Further the decree holder who does not take steps to execute the decree in accordance with the procedure prescribed by law should not be encouraged to invoke contempt jurisdiction of the Court for non-satisfaction of the money decree."
27. In the above view of the matter, it is clear that the power of the Contempt Act should not be considered as that of executing Court nor the Court should normally not exercise the power when the party to the award or decree has alternative remedy also for the purpose of implementing or executing the decree or award. It is clarified that we do not hold that such measures of providing alternative remedy for execution of the award or decree operates as bar for exercising powers of this Court under the Contempt Act. However, at the same time, when the Act itself in the present case I.D. Act provides sufficient and effective measures for execution of the award, normally this Court relegate the party concerned who are petitioners in the present case to resort to such remedies provided under the Act for implementation and execution of the award. In view of the above circumstances as mentioned and narrated in case of Bipinchandra (supra) and Shankerpuri (supra) cannot be said to be in existence as on today coupled with the fact that the law is laid down subsequently by the Apex Court in case of State of Maharashtra (supra) and in case of R.N. Dey (supra).
28. In the above view of the matter, we are not inclined to initiate proceedings under the Contempt of Courts Act as sought to be canvassed by the petitioners and the petitioners may approach appropriate authority of the Labour Court/Industrial Tribunal for execution and implementation of awards.
29. In the result, all these Misc.C. As are dismissed subject to above observations with no order as to costs.