Gujarat High Court
Naushadkhan Yusufkhan Pathan vs Hashmukhbhai P. Barad Or His Successor ... on 10 August, 2023
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/MCA/1305/2023 ORDER DATED: 10/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO.1305 of 2023
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NAUSHADKHAN YUSUFKHAN PATHAN
Versus
HASHMUKHBHAI P. BARAD OR HIS SUCCESSOR IN OFFICE
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Appearance:
MS ANGEL D GOHEL(12985) for the Applicant(s) No. 1
for the Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 10/08/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present application has been filed seeking initiation of the contempt proceedings under the Contempt of Courts Act, 1971 (for short "the Act") for deliberate and willful disobedience of the award dated 27.10.2017 passed by the Industrial Tribunal, Bhavnagar in Complaint (IT) No.8 of 2016 in Reference (IT) No.47 of 2010.
2. On query raised by this Court with regard to maintainability of the present application, learned advocate Ms.Gohel has submitted that the application will be maintainable under the Act. She was also apprised by this Court with regard to the judgement delivered by this Court dated 19.06.2023 in Misc. Civil Application No.450 of 2023 in Special Civil Application No.11670 of Page 1 of 5 Downloaded on : Sun Sep 17 00:53:44 IST 2023 NEUTRAL CITATION C/MCA/1305/2023 ORDER DATED: 10/08/2023 undefined 2014 however, against the aforesaid judgement, she has supplied the judgement of the Apex Court in the case of Welset Engineers and Anr. Vs. Vikas Auto Industries and Ors., (2015) 10 S.C.C. 609 and has submitted that the contempt proceedings will be maintainable. She has also placed reliance on the judgement of the Apex Court in the case of Dr.H.Phunindre Singh and Ors. Vs. K.K.Sethi and Anr., (1998) 8 S.C.C. 640. She was also asked that if she desires, she can also file written submissions however, having waited enough, she has not filed any written submissions.
3. This Court, while examining the analogous issue vide judgement dated 19.06.2023 passed in Misc. Civil Application No.450 of 2023 in Special Civil Application No.11670 of 2014 has held thus:
"13. After the aforesaid judgment was delivered by the Division Bench, another Division Bench of this Court in the case of Kishorebhai Dahyabhai Solanki Vs. Nagjibhai Muljibhai Patel, 2002 (2) G.L.H 754, after survey of various judgments, including the judgment rendered in Jaisinh Jodhabhai Vaisya (supra), has held thus :-
"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 Page 2 of 5 Downloaded on : Sun Sep 17 00:53:44 IST 2023 NEUTRAL CITATION C/MCA/1305/2023 ORDER DATED: 10/08/2023 undefined Revenue Code whereas in the decree of Civil Court the other modes are also permissible. Further, noncompliance 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 Page 3 of 5 Downloaded on : Sun Sep 17 00:53:44 IST 2023 NEUTRAL CITATION C/MCA/1305/2023 ORDER DATED: 10/08/2023 undefined 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."
4. Thus, the contempt proceedings, alleging willful and deliberate violation of the award passed by the Tribunal would not be maintainable. The judgements, upon which reliance is placed by the learned advocate appearing for the applicant will not apply to the present case as the issue raised therein, which was examined by the Apex Court, was absolutely of different realm. In the case of Welset Engineers and Anr. (supra), the Apex Court was examining provisions of Order 39 Rule 2-A of the Code of Civil Procedure, 1908 Page 4 of 5 Downloaded on : Sun Sep 17 00:53:44 IST 2023 NEUTRAL CITATION C/MCA/1305/2023 ORDER DATED: 10/08/2023 undefined (CPC) and violation of interim injunction order passed by the High Court, whereas the case of Dr.H.Phunindre Singh and Ors. (supra) does not in any manner remotely connects with the issue raised in the present application.
5. Hence, the submissions advanced by the learned advocate Ms.Gohel is rejected. As a consequence thereof, the present application stands summarily rejected however, it will be open for the applicant for initiating the appropriate proceedings as provided under the Industrial Disputes Act, 1947 for execution and implementation of the award dated 27.10.2017.
Sd/-
(A. S. SUPEHIA, J) Sd/-
(M. R. MENGDEY,J) NVMEWADA Page 5 of 5 Downloaded on : Sun Sep 17 00:53:44 IST 2023