Jharkhand High Court
Rajendra Prasad Sharma And Ors. vs The State Of Jharkhand, Sri Parvin Jha, ... on 30 March, 2007
Equivalent citations: 2007(2)BLJR1853, 2007 (2) AIR JHAR R 522, (2007) 3 JLJR 191
Author: Permod Kohli
Bench: Permod Kohli
JUDGMENT Permod Kohli, J.
Page 1854
1. Invoking jurisdiction of this Court under Article 215 of the Constitution of India read with Sections of 11 and 12 of the Contempt of Courts Act, thirty persons (Workmen) have filed this petition for initiating proceedings for contempt against the officials of Page 1855 M/s. Jardine Henderson Ltd. (MEAMECO Division), Barwa Road, Dhanbad (hereinafter referred to as the Company)
2. The petitioners are the workmen of the Company. A dispute was raised by the Union regarding retrenchment of certain workers. The dispute came to be referred to the Industrial Tribunal, Dhanbad by the appropriate Government on 3.2.1988. The reference was answered against the workmen and in favour of the Management. The Union preferred C.W.J.C. No. 1408 of 1994(R) challenging the Award of the Industrial Tribunal before this Court. This writ petition was decided by a learned Single Judge of this Court vide judgment dated 23.8.2002 in which following observations/directions were issued:
12. In the aforesaid background, the retrenchment of 101 (one hundred one) workmen of 'Meameco Division' being violative of Section 25N of the I.D. Act, 1947 the retrenchment order dated 13th January, 1988 cannot be upheld.
13. So far as 22 (twenty two) workmen of 'M/S Jardine Victor Ltd.' is concerned, they having been provided with the notice pay and benefit as per Section 25F of the I.D. Act, 1947 and there being no illegality, I find nothing wrong in respect to them.
14. For the reasons as mentioned above the award the respect to 101 (one hundred one) workmen of Meameco Division of M/S Jardine Ltd. is set aside in respect to those workmen. So far as the award in respect to 22(twenty two) workmen of 'Jardine Victor Ltd.' is concerned, the award is upheld.
15. All the 101 (one hundred one) workmen in question will be entitled for consequential benefits including monetary benefit to which they are entitled under the law. The respondent management is directed accordingly.
3. The Company filed a Letters Patent Appeal being L.P.A. No. 577 of 2002 and a Division Bench of this Court affirmed the judgment of the learned Single Judge by making following observations:
In this situation, the judgment of the learned single Judge is affirmed and the appeal is dismissed making it clear that the right if any of the appellant to move made Section 25N(6) of the Industrial Disputes Act is not in any manner affected by this decision.
4. Present petitioners are 30 workmen out of 101 in whose favour this Court passed the order. Alleging non-compliance of the judgment of this Court, this contempt petition has been filed. Answering opposite party Nos. 2 & 3 were put to notice. Later opposite party No. 4 was also impleaded vide Court's order dated 12.5.2006, Opposite party Nos. 2 & 3 filed their show-cause dated 10.5.2006 alleging, inter alia, that opposite party Nos. 2 & 3 named in the contempt petition, have retired from the Company on 30.3.2004 and 30.3.2005 respectively. At the same time, they have defended the action of opposite party No. 4-Company on variety of grounds. Some of the contentions raised are noted below:
It is submitted that the order passed by this Court in LP A No. 577 of 2002 was challenged before the Apex Court in Civil Appeal No. 4466 of 2004 which has been dismissed vide order dated 27.10.2005. After dismissal of the Special Leave Petition. the petitioners approached the Assistant Labour Commissioner, Dhanbad for calculation of the monetary benefits in terms of Page 1856 the Court's order. During the pendency of the litigation, 71 workmen out of 101 settled with the Company. However, remaining 30 workmen i.e. the petitioners herein have filed the present contempt petition. It is further mentioned that the Union of the workmen vide letter dated 25.11.2005 requested the Company to pay to 30 workmen a total sum of Rs. l,44,03,000/-as consequential monetary benefits. The Company, however, vide its letter dated 25.11.2005 asked for medical fitness of the employees for taking them back to service. The Company also disputed the amount worked out by the petitioners as consequential monetary benefits. The Assistant Labour Commissioner, Dhanbad, who was approached by the workmen, asked both the parties to appear before him and for this purpose he held proceedings on two days ie. 3.2.2006 and 7.2.2006. The Company admitted its liability to pay Rs. 55 lacs approximately to the workmen; however, 30 workmen made their claim for Rs. l,67,07,614/-. The Assistant Labour Commissioner, however, vide his order dated 3.2.2006 observed that it is not possible for him to commute the amount unless clear directions are received. It is further mentioned by opposite party Nos. 2 & 3 that petitioners should have approached under Section 33C(2) of the Industrial Disputes Act, 1947 for calculation of the monetary benefits payable under the judgment but they chose not to do so. As regards the amount of Rs. 55 lacs offered by the Company is concerned, it is alleged that petitioners have refused to accept the same. It is also stated that during pendency of these proceedings petitioner No. 16 died and petitioner Nos. 4, 5, 7, 11, and 14 have attained the age of superannuation whereas petitioner Nos. 13 and 22 have been retained as Casual Workers. According to opposite parties, contempt proceedings are not maintainable for calculation of monetary benefits.
5. Both the parties have filed supplementary affidavits. In the second show-cause dated 12.6.2006, it is stated that the Company is willing to pay an amount of Rs. 59,09,262/- in compliance of the Court's order. It is also stated that Meameco Factory at Dhanbad is incurring huge losses every year. The total accumulated losses upto 2004-05 had reached the figure of Rs. 10,57,00,839/- and on account of this situation a number of workers have been given VRS. All other workers except the 23 workers who are petitioners in the present proceedings have already taken VRS and have left the Company. Similar plea of VRS for some of the workers has been raised in another show-cause dated 2.8.2006. It is further stated that some of the petitioners arc gainfully employed elsewhere.
6. In another show-cause dated 13.9.2006, filed by one Saradindu Bhattacharya, stating therein that he has not been impleaded as party-contemnor No. 3 but on account of retirement of original contemnor No. 3 he is working as General Manager (Works), Meameco Division, Dhanbad and he has filed this affidavit on behalf of opposite party Nos. 2 & 3. In this affidavit, he has tried to explain that the petitioners are not entitled to the wages which are being paid to other employees. In paragraph-5 details of amount paid to retrenched employees have been given and it is stated that other employees being continuous in service are entitled to the wages and the petitioners are not entitled to same wages as they have not actually worked for the intervening period and their burden was shared by other employees. It is slated that petitioners are entitled to only such wages which were being paid to Page 1857 them at the time of retrenchment. Opposite parties have calculated the amount of Rs. 65,64,127/- said to be payable to the 30 workmen.
7. Mr. Hirak Mitra, learned Sr. Counsel appearing for the opposite parties, who argued the matter finally has referred to Annexure-A series as annexed with the show-cause dated 13.9.2006 to show that the Company is incurring huge losses right from the year 1982 till 31.3.2006, a balance sheet has also been annexed. From perusal of Annexure-3 series including the balance sheet, it is apparent that loss statement is not in respect to the Company as a whole but is confined to only Meameco Division, Dhanbad. Opposite party-Company has tried to mislead this Court by making this statement that the Company is suffering huge losses. No document, showing the financial health of the Company as whole, has been placed on record. The documents annexed with the aforementioned show-cause relate to the Meameco Division, Dhanbad and not for the entire Company.
8. Vide interlocutory order dated 22.8.2006, this Court framed following questions:
Counsel for the opposite parties prays for and is granted ten days time to file counter affidavit and state:
(1) Whether pay of other workmen was revised since 1988;
(2) Whether the workmen-petitioners have been paid arrears on the basis of revised scale of pay, if such revision of pay has been made and (3) Whether they have been allowed admissible allowances, such as, D.A. etc. along with the wages to which they were entitled under the law
9. The Officers who were earlier summoned to appear before this Court were asked to remain present. The matter was again heard on 17.11.2006 and it was observed that the judgment of the Court has not been complied with. Learned counsel for the opposite parties was asked to inform the Court within how much time the judgment shall be implemented in its entirety. Mr. Poddar, learned Sr. Counsel appearing for the opposite parties, sought one week's time to seek appropriate instruction and to inform the Court accordingly. However, learned Sr. Counsel appearing for the opposite parties failed to make any commitment and argued the matter on merits. The parties have filed their written submissions.
10. The only dispute in this contempt petition relates to the question whether monetary consequential benefits as directed by this Court means only the wages being paid at the time of retrenchment of the workmen or may include the wage revision, increments and other allowances during the interregnum i.e. between the period of retrenchment and reinstatement as directed by this Court. The monetary consequential benefits are to be construed in the context of the judgment of the Court. This Court set aside the order of retrenchment of the petitioners and directed their reinstatement with all monetary and consequential benefits The simple, legal, logical, and rational interpretation has to be given on the basis of language used by this Court which alone can reveal the intention in issuing such directions. It is not in dispute that monetary benefit means all financial benefits. Consequential benefits are to be construed accordingly. It simply means all consequences emanating from the order setting aside the retrenchment of the petitioners. The natural and legal consequence of setting aside the order of retrenchment is that the workmen are deemed to be in service. Once they are Page 1858 deemed to be in service the consequential benefits shall include all the monetary and other service benefits which were/are payable to other similarly situated employees of the Company. If there has been any pay revision. increments payable or revision of allowances, all are payable to these workmen except the bonus or any other amount which has direct relation with the actual performance of duties. The judgment must be understood, construed, and implemented in this sense. Opposite parties do not seem to be interested in implementing the judgment. Initially, they preferred an appeal before the Apex Court, which is definitely their right. However, after dismissal of the appeal by the Supreme Court, judgment having attained its finality, the opposite party-Company had has no option but to implement the judgment. From the show-cause itself, it is evident that even when the Assistant Labour Commissioner declined to commute the benefits flowing from the judgment, the opposite party-Company made an application to the appropriate Government seeking reference under Section 10 of the Industrial Disputes Act, 1947. Request having been declined by the Government, a writ petition was preferred which was dismissed and an L.P.A. against the said order also resulted in dismissal. At least after this, opposite party-Company cannot be permitted to say that the issue regarding calculation of wages cannot be determined by the Court or has to be re-determined by some Court/Forum or the minimum wages receivable by the workmen at the time of retrenchment alone are payable.
11. Learned Counsel for the opposite parties have relied upon [MP. State Electricity Board v. Jarina Bee (Smt.)] [Allahabad Jal Sansthan v. Daya Shankar Rai and Anr.] [U.P. State Brassware Corporation Ltd. and Anr. v. Uday Narain Pandey] and [A.P. SRTC and Anr. v. B.S. David Paul].
12. In all the above cases, the issue raised was regarding the payment of back wages. Hon'ble Apex Court held that for payment of back wages various factors are required to be considered and payment of back wages is not a natural consequence. I fail to understand how these judgments can come to the rescue of the opposite parties in contempt proceedings. While exercising contempt jurisdiction under Sections 11 and 12 of the Contempt of Courts Act read with Article 215 of the Constitution of India, the Contempt Court can only consider whether the judgment has been implemented or there has been willful disobedience of its directions. The question whether back wages are payable or not cannot be determined at this stage. This argument was available to the opposite parties when the writ petition and L.P.A. were decided by this Court. While disposing of the writ application this Court gave clear direction for payment of all consequential monetary benefits which definitely include back wages. This issue cannot be reopened and re-determined in contempt proceedings.
13. Opposite parties have further relied upon 1999 SCC (L&S) 558 [Indian Airports Employees' Union v. Ranjan Chatterjee and Anr.]. In this case, while referring to another judgment of the Apex Court, it was observed that disobedience of orders of Court, in order to amount to 'Civil Contempt' under Section 2(b) of the Contempt of Courts' Act, 1971 must be willful and proof of mere disobedience is not sufficient. The Court, however, in paragraph-11 of the judgment held on facts that non-absorption of six sweepers was bona fide and was based on an interpretation of the orders and Page 1859 notification etc. and cannot be said to amount to 'willful disobedience' of the orders. This judgment is also of no avail to the opposite parties as contempt proceedings in the said case were dropped on the basis of facts of that case.
14. Reference is also made to [Niaz Mohammad and Ors. v. State of Haryana and Ors.] wherein Apex Court observed as under:
Before a contemnor is punished for non-compliance of the direction of a court, the court must not only be satisfied about the disobedience of any judgment decree, direction or writ but should also be satisfied that such disobedience was willful and intentional. The civil court while executing a decree against the judgment-debtor is not concerned and bothered whether the disobedience to any judgment, or decree, was willful. Once a decree has been passed it is the duty of the court to execute the decree whatever may be consequence thereof. But while examining the grievance of the person who has invoked the jurisdiction of the court to initiate the proceeding for contempt for disobedience of its order, before any such contemnor is held guilty and punished, the court has to record a finding that such disobedience was willful and intentional. If from the circumstances of a particular case brought to the notice of the court, the court is satisfied that although there has been a disobedience but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order, the court may not punish the alleged contemnor
15. While deciding the writ petition, it was held that all the 101 (one hundred one) workmen in question will be entitled for consequential benefits including monetary benefit to which they are entitled under the law. The respondent management was directed accordingly. Consequential monetary benefits envisaged by the Court have been calculated by the opposite parties as wages at the rate paid to the petitioners at the time of their retrenchment i.e. more than 17 years back.
16. In [A.P. SRTC and Anr. v. S Narsagoud] Apex Court observed as under:
There is a difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential benefits, which necessarily flow from reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the increments earned during the period of absence.
17. The questions that primarily arise for consideration are what is the meant by "consequential monetary benefits" and whether there has been willful disobedience of the Court's direction as contained in the order dated 23.8.2002. Consequential monetary benefits would include the increments and all wages/allowances revised from time to time except such allowances or perks which are related to the actual performance of duty.
18. In [A.P. SRTC and Anr. v. S. Narsagoud] the Apex Court has clearly observed that consequential benefits will include the increments. As observed above, opposite parties have filed their show cause dated 13.9.2000, pursuant to the Court's direction dated 22.8.2006 and submitted their answer to the questions posed by the Court as under:
Page 1860 Question-I Whether pay of other workmen was revised since 1988?
Answer The wages of the workmen not party to the present dispute and who had actually been working after the retrenchment of the 101 workmen were revised from time to time since 1988 on account of--
(a) increments due to each and any one of them
(b) promotions granted to a few of them from time to time on account of efficiency or increase in responsibilities
(c) variations in Variable Dearness Allowance
(d) settlement with the Unions from time to time Question II Whether the workmen-petitioners have been paid arrears on me basis of revised scale of pay, if such revision of pay has been made?
Answer:The workmen have not been paid arrears on the basis of the revised sale of pay. The workmen were paid their arrears back wages upto the month of July 2006 on the basis of the last wage drawn. The reasons for the same have been sated at great length hereinabove and in the two several petitions including the supplementary petition snowing cause and in the next main paragraph of this counter-affidavit.
Question III Whether they have been allowed admissible allowances such as D.A. etc. along with the wages to which they were entitled under law?
Answer: The workmen have been paid closure compensation and ex-gratia payments. They were paid dearness allowances as per their entitlement in 1988. I say that the management's interpretation of the Hon'ble High Court Order dated 23.8.2002 for the reasons aforesaid and also stated hereinbelow, is that these were the only sums and payable at only the said rates to which 30 petitioners are entitled.
19. From the above answers, it is evident that all the employed except the petitioners working with the opposite parties-Company have been granted increments and revision of wages from time to time. This increment is also on account of wage revision on the basis of minimum wages as notified by the Government of India under Minimum Wages Act. However, these revised wages, allowances and increments have been denied to the petitioners. Two grounds have been urged for denying these wages (i) that the petitioners were out of service and they did not perform the actual duties and (ii) that Meameco Division of the Company has been constantly suffering losses. In paragraph-14 of the aforesaid show-cause, it is stated that Meameco Factory at Dhanbad during the last 18 years has suffered losses to the tune of Rs. 11,79,20,211/-.
20. From the material on record placed by both the parties including the pleadings of the opposite parties, I am constrained to hold that prima facie charge of contempt is made out against opposite parties of willful disobedience of the Court's direction. Admittedly, judgment was passed by this Court on 23.8.2002. This order of the Court was confirmed in L.P.A. Instead of implementing the order the opposite parties-Company approached the State Government for seeking fresh reference under Section 10 of the Industrial Disputes Act, 1947. This contempt proceeding was initiated in the month of November, 2003 and it is only after the notice of contempt was served upon the opposite parties, they preferred Special Leave Petition before the Hon'ble Supreme Court which also Page 1861 came to be dismissed on 27.10.2005 The Judgment has been passed against the Company- M/s. Jardine Henderson Ltd. There is nothing on record to show that the Company has suffered losses for the last 18 years as alleged What has been projected is that Meameco Division of the Company has been suffering losses. This, in fact, is a misleading statement as the opposite parties have not disclosed whether the Company has suffered losses as a whole or what is the Company's total worth and its profit and loss from all its sources. Projection of losses of one Unit of the Company is aimed at circumventing the Court's direction. In commercial enterprises the Company may suffer losses in one Unit and may earn profit in other. But the profit and loss can only be determined on the basis of total income and expenditure of the Company which fact has been kept back from the Court deliberately so as to carve out a ground for non-implementation of the Court's order. I am of the considered opinion that there has been willful, disobedience of the Court's order. Therefore, Court has two options in contempt jurisdiction -first by an order of committal against the Directors of the Company and/or an order of sequestration against the property of the Company. In view of the conduct of the opposite parties and the long-pendency of the dispute of payment to labourers some of whom have died in the last 20 years and their legal heirs are fighting for their rights, I decide to adopt both the courses. I, accordingly, order the attachment of the property of the Company i.e. the entire factory premises of Meameco Division, Dhanbad. District Magistrate, Dhanbad is directed to attach the property and file a report of attachment before this Court within two weeks. I also direct the registry to frame rule against the Managing Director and other Directors of the Company who shall appear before this Court to show-cause as to why they be not punished for contempt of the Court. Learned counsel appearing for apposite parties is directed to cause appearance of the Managing Director and other Directors of the Company before this Court on 27.04.2007.