Punjab-Haryana High Court
Ram Phal vs Rajwant Pal Singh And Anr on 9 September, 2022
Author: B.S. Walia
Bench: B.S. Walia
[205] IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
COCP No.3227 of 2017
Date of Decision : 20.10.2022
Ram Phal son of Shri Ratan resident of
BalmikiBasti, Near Civil Hospital, Karnal ...Petitioner
versus
Dr. B.K. Sinha, IPS, Commandant General,
Home Guards Haryana, 30 Bays Building,
Sector 17, Chandigarh and another ....Respondents
Coram : Hon'ble Mr. Justice B.S. Walia
Present : Mr. S.S. Majithia, Advocate for
Mr. Shivdeep, Advocate
for the petitioner.
Mr. Manish Dadwal, Asstt. AG, Haryana.
***
B.S. Walia, J. (Oral)
[1] Prayer in the instant petition is for initiation of proceedings against the respondents for intentional and willful defiance of order, Annexure P-1, dated 31.05.2017,passed by this Court in CWP No.9497 of 2001 in case titled as 'State of HaryanaversusRam Phal and another'. [2] Brief facts of the case, leading to the filing of the instant petition are that the petitioner whose services were terminated, while his junior namely, Suresh Kumar was retained in service approached the Labour Court, leading to passing of award (Annexure P-2) dated 11.01.2001, as per which, the petitioner-workman was held entitled to reinstatement with continuity of service and full back wages with effect from the date of demand notice dated 16.05.1998.
[3] CWP No.9497 of 2001 filed against the award was dismissed, 1 of 10 ::: Downloaded on - 30-12-2022 04:41:21 ::: COCP No.3227 of 2017 [2] while upholding the award and by observing that in case, the same was not implemented within 03 months from the date of receipt of certified copy of the order dated 31.05.2017, not only would interest be payable @ 9% per annum with effect from the date of failure to implement the award till the amount was realized but the workman would also be at liberty to apply to the Labour Commissioner to proceed against the management under Section 29 read with Section 34 of the Industrial Disputes Act, 1947, apart from taking recourse to any other remedy available in law such as the one provided under Section 11(9) of the Industrial Disputes Act, 1947. [4] Learned counsel contends that despite notice for contempt (Annexure P-3) dated 29.09.2017 having been served on the respondents, no action has been taken by the respondents to comply with order (Annexure P-
1) dated 31.05.2017 in CWP No.9497 of 2001, therefore, the respondents are liable to be punished for intentional and willful defiance of order (Annexure P-1) dated 31.05.2017 in CWP No.9497 of 2001.
[5] Per contra, learned Asstt., AG, Haryana, vehemently contended that the instant petition is not maintainable for enforcing the award as upheld by the order of this Court (Annexure P-1) dated 31.05.2017 and the petitioner if so advised may take recourse to the remedy available under the Industrial Disputes Act, 1947 under Section 29 read with Section 34 of the Industrial Disputes Act, by applying to the Labour Commissioner to take out proceedings against the respondents / taking out proceedings under Section 11(9) of the Industrial Disputes Act, 1947.
[6] A perusal of the file reveals that on 21.08.2019, it was observed that the order of this Court had not been complied with in letter and spirit and that back wages had not been paid as per the award. In the circumstances, the District Commandant, Home Guards, A-478, Sadar 2 of 10 ::: Downloaded on - 30-12-2022 04:41:22 ::: COCP No.3227 of 2017 [3] Bazar, Behind Government Girls College, Railway Road, Karnal, was directed to be present in Court to explain non-compliance of the order of this Court on 18.01.2020. However, on the next date, i.e04.02.2020, learned Sr. DAG, Haryana, contended that all payments of the petitioner had been made as per the terms of his employment and since he was a part time Sweeper, salary as per DC rates had also been paid to him besides, he had been reinstated in service, whereupon, learned counsel for the petitioner sought adjournment to have instructions in the matter and the presence of the District Commandant, Home Guards, Karnal, for the next date, was exempted.
[7] A perusal of reply dated 07.01.2019 reveals that Dr. B.K. Sinha, IPS, Commandant General, Home Guards & Director Civil Defence Haryana, Chandigarh vide order dated 02.11.2017 sanctioned release of arrears of due benefits admissible to the petitioner and also gave approval for the release of Budget thereof, whereupon vide letter dated 16.11.2017, an order for releasing the calculated amount was issued to the District Commandant, Home Guards, Haryana, Karnal, and vide letter dated 22.11.2017, the District Commandant, Home Guards, Karnal, reported that an amount of Rs.35,943/- pertaining to the period 16.05.1998 to 24.07.2001 had been deposited in the SBI account of the petitioner (i.e. Account No.10093080529) on 22.11.2017, besides interest @9% per annum was also sanctioned for payment to the petitioner vide letter dated 16.01.2018 and deposited in the aforesaid account of the petitioner on 24.01.2018. The respondent has also attached invoice to DDO, Treasury Officer, Haryana, for a sum of Rs.35,943/- for issuance of pay order No.1300133807in the name of the petitioner. Likewise, an invoice was also issued against pay order No.1300137566 for a sum of Rs.576/- in the name of the petitioner. Details 3 of 10 ::: Downloaded on - 30-12-2022 04:41:22 ::: COCP No.3227 of 2017 [4] of calculations on the basis of which the payment aforesaid has been made to the petitioner have also been attached along with the reply filed by the respondents. On the other hand, counter affidavit has been filed by the petitioner to the effect that he is entitled to more payment. [8] Learned counsel for the petitioner has relied upon the decision of Hon'ble the Supreme Court in 'RamaNarang versus Ramesh Narang and another', Law Finder Doc Id # 126602, as well as in 'Parents Association of Students versus M.A. Khan and another', 2009(2) SCC 641, in support of the plea that willful violation of undertaking given by a party to the Court would amount to contempt of Court and for that matter, a person was not only bound by the directions issued by the High Court but that in case of disobedience of order of the High Court, a contempt petition would be maintainable against the contemnor.
[9] Learned Asstt. Advocate General, while contending that the judgments relied upon were not applicable and reference to the Division Bench judgment of Hon'ble the Gujarat High Court in case titled as 'Muljibhai Bhurabhai versus Upendra Vyas', 2000(4) RCR (Criminal) 796, to the effect that contempt proceedings would not lie for seeking compliance of award or order passed by the Labour Court. Relevant extract of the same is reproduced as under:-
" xxx xxx xxx The Division Bench of this Court in the case of Vadodara Mazdoor Congress, Baroda v. IOC, 1995 II CLR 767 has laid down in no uncertain terms that when an award of the Tribunal on a reference made under Section 10 has been given, then the non-compliance of the same would entitle the employee to apply under Section 33C of the Industrial Disputes Act. For arriving at the said conclusion, the Division Bench placed reliance on 4 of 10 ::: Downloaded on - 30-12-2022 04:41:22 ::: COCP No.3227 of 2017 [5] the decision of the Apex Court in the case of East India Coal Co. Ltd. v. Kameshwar, 1968 I LLJ 6. The Division Bench on the basis of the Supreme Court decision, laid down eight propositions on the question as to the scope of Section 33C(2) of the Industrial Disputes Act and held that Section 33C was a provision in the nature of an executive provision and will apply to the cases where money was due to the workman under an award or settlement and that sub-section (2) applied to both, non-monetary as well as monetary benefits. The Division Bench in the said decision, clearly laid down that the proceedings for contempt should not be used with a view to merely see the execution of the award.
Again, The Division Bench of this Court in the case of P. R. Solanki v. Divisional Controller, GSRTC, 1996(2) GLR 267, after relying on the decision of Vadodara Mazdoor Congress (supra) held that there is an alternative remedy available to a workman to approach industrial forum under Section 33C of the Industrial Disputes Act. It may be stated that the Division Bench also considered the earlier decision of the Division Bench of this Court in the case of Bipinchandra (supra)."
xx xx xx In view of the aforesaid judgments of this Court in the cases of Vadodara Mazdoor Congress and P. R. Solanki (supra), and the decision of Apex Court in East India Coal Co. Ltd., when it is laid down that in case of breach of order or award passed by the Labour Court, application to High Court under the Contempt of Courts Act cannot be entertained and the remedy under the Industrial Disputes Act should be availed of, we hardly see any ground for taking a different view in the matter. Suffice it to say that we are in total agreement with the views expressed in the aforesaid judgments.
18. In a recent decision in the case of R. N. Dey v. Bhagyabati Pramanik, (2000) 4 SCC 400, the Apex Court clearly laid down that weapon of contempt cannot be used for the purpose of executing a 5 of 10 ::: Downloaded on - 30-12-2022 04:41:22 ::: COCP No.3227 of 2017 [6] decree or implementing an order for which law provides appropriate procedure. A 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. This judgment is a direct answer to the submissions advanced by learned advocates relying on the decision of the Division Bench of this Court in the case of Lopaben v. Hitendra R. Patel, 1999 (2) GLR 1616 wherein it is laid down that merely because an order for payment of maintenance is executable as a decree, it does not mean that deliberate omission to pay maintenance would not amount to civil contempt.
19. With regard to the so-called difficulties pointed out by the learned advocates in getting appropriate reliefs from the Labour Court under Section 33C of the Industrial Disputes Act, for the alleged difficulties in getting appropriate orders under Section 33C of the Industrial Disputes Act, we cannot ignore the law laid down by this Court in the aforesaid judgments. Thus, we reject the second question by holding that contempt proceedings are not maintainable when adequate remedy under Section 33C of the Industrial Disputes Act is available, even if it is held that Labour Court/Tribunal is a "Court" within the meaning of the Contempt of Courts Act. In view of this, we reject this application with no order as to costs.
[10] Further reference has been made to the Division Bench judgment of Hon'ble the Gujarat High Court in case titled as 'Grofed Employees Union versus Rajeev Mathur and another', Law Finder Doc Id #35593, to the effect that contempt jurisdiction cannot be allowed to be used for purpose of execution of any order, decree or award, especially when there is an adequate alternative remedy available. Relevant extract of the same is reproduced as under:-
3. It cannot be gainsaid that the order sought to be enforced by the applicant, with the assistance of this Court, through its contempt jurisdiction, is an "award" as 6 of 10 ::: Downloaded on - 30-12-2022 04:41:22 ::: COCP No.3227 of 2017 [7] defined in Section 2(b) of the Industrial Disputes Act, 1947,and for enforcement of the order, there exists effective alternative statutory remedy under Section 33-C of the Act.
4. The contempt jurisdiction cannot be allowed to be used for the purpose of execution of any order, decree or award, especially when there is an adequate alternative remedy available therefore. This view is inter alia, fortified by the Division Bench decision of this court rendered in 'Kishorbhai Dahyabhai Solanki versus Nagjibhai Muljibhai Patel', reported in (2002) 2 Guj.
LH 754.
5. Under the circumstances, the Court declines to initiate contempt proceedings against the opponents. The application is dismissed. Rule is Discharged. No order as to costs. Application dismissed. "
[11] Reference has also been made to the Division Bench Judgment of Hon'ble the Gujarat High Court in case titled as 'Kishorbhai Dahyabhai Solanki versus Nagjibhai Muljibhai Patel', Law Finder Doc Id # 341513, "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 7 of 10 ::: Downloaded on - 30-12-2022 04:41:22 ::: COCP No.3227 of 2017 [8] 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. "
[12] Further reference is also made to a decision of Hon'ble the Punjab and Haryana High Court in case titled as 'Mahavir Singh versus Shri Gian Parkash Khurana and another', Law Finder Doc Id # 47453, wherein the question which was considered was whether non-compliance with the award simpliciter would amount to contempt of Court within the meaning of Section 2(b) of the Act.
[13] Hon'ble the Single Bench, while giving the below mentioned example:-
"By passing a decree, neither the Court gives any direction to the judgment debtor to obey it within any specified time nor he undertakes to do so. But, apart from non-compliance some act on his part shows disobedience of the judgment or the decree, such an act may amount to civil contempt if it is willful and continuous. For example, a decree is passed against, A for executing a sale deed of a house by way of specific performance of an agreement and delivery of its possession. Instead of complying with the decree he either demolishes, the house or 8 of 10 ::: Downloaded on - 30-12-2022 04:41:22 ::: COCP No.3227 of 2017 [9] transfers it to a third party. So, he not only fails to comply with the decree but disobeys it by some over act on his part. In such a case, his act may amount to civil contempt if it is shown to be willful."
held that simple non-compliance of the award would not amount to willful disobedience of the award or to contempt of Court. Relevant extract of the same is reproduced as under:-
"7. I am, therefore, of the considered view that it is the act of the contemner which in one case results in willful disobedience of the judgment and in the other willful breach of the undertaking which can give rise to contempt of Court and not non compliance of a judgment, decree or, order - simpliciter. As admittedly no express or implied undertaking was ever given by the respondent for the payment of the back wages. The - simple non compliance with the award by him, would not amount to willful, disobedience of the award or to contempt of Court. This, petition, therefore, must fail and the rule issued is accordingly discharged. "
[14] In the light of the position noted above, especially of payment as per entitlement having been made to the petitioner as per details given above, besides the petitioner having been reinstated, the grievance of the petitioner that the award has not been fully complied with, can best be resolved by his taking out appropriate proceedings in accordance with the liberty granted by the writ Court to take out proceedings under the Industrial Disputes Act, 1947.
[15] Accordingly, finding no merit in the instant petition, the same is dismissed, as not calling for taking action against the respondents under the Contempt of Courts Act, 1971, while granting liberty to the petitioner to 9 of 10 ::: Downloaded on - 30-12-2022 04:41:22 ::: COCP No.3227 of 2017 [10] invoke his remedy, if so advised, under the provisions of the Industrial Disputes Act, 1947, as per the decision of the writ Court.
[16] Rule discharged.
(B.S. Walia)
Judge
20.10.2022.
'Rajneesh'
Whether speaking/ reasoned : Yes/No
Whether reportable : Yes/No
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