Himachal Pradesh High Court
Consumer Store vs Sh. K.C. Chaman on 6 March, 2017
Bench: Chief Justice, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
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COPC No. 963 of 2015 in LPA No. 4053 of 2013.
Judgment reserved on: 27.2.2017 Date of Decision : 06 . 03. 2017.
General Secretary / Pradhan, Employees Union Central Cooperative of Consumer Store, Shimla ...Petitioner Versus Sh. K.C. Chaman ...Respondent.
Coram rt The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting ? Yes For the Petitioner : Mr. J. L. Bhardwaj, Advocate.
For the respondent : Ms. Ranjana Parmar, Senior Advocate, with Ms. Rashmi Thakur, Advocate.
Tarlok Singh Chauhan, Judge This contempt petition has been filed against the respondent for his alleged willful disobedience of the directions passed by this Court in LPA No. 4053 of 2013 whereby according to them the members of the petitioner-Union were held entitled to the service benefits at par with the regular employees of the H. P. State Cooperative Marketing and Consumers Federation Ltd., Shimla (for short the 'Federation'). However, before adverting to the directions passed by this Court, it would be necessary to recapitulate the facts.
CWP No. 342 of 20082. The petitioner-Union comprises of the employees of the erstwhile Central Cooperative Consumers Store, Shimla (for short ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ?
::: Downloaded on - 15/04/2017 21:58:38 :::HCHP 2'Consumer Store'), which currently is under liquidation. The .
Consumer Store requested the H.P. State Cooperative Marketing and Consumers Federation Ltd. Shimla (for short 'Federation') to take up the services of the members of the petitioner-Union for procurement and distribution of control articles vide letter dated 10.6.1994. The of Federation vide its letter dated 18.6.1994 agreed to utilize 12 shops only for management purpose alongwith 18 workers (10 salesmen and rt 8 helpers). Condition No.4 of the aforesaid letter stipulated as under:
"4. The workers employed in the running of these 12 shops will remain on your roll and Himfed will make payment of their salaries through you at the present pay scale being drawn by each worker."
3. Aggrieved by the aforesaid condition, the members of the petitioner-Union raised a dispute by invoking Section 72 of the Himachal Pradesh Cooperative Societies Act, 1968 (hereinafter referred to as 'Act'). The same came to be decided by the Deputy Registrar (Administration) vide his order dated 26.7.2003 wherein it was held that there was no clause in the letter dated 18.6.1994 (supra) by virtue of which the financial benefits to the petitioners could be frozen. Meaning thereby, he held the members of the petitioner-Union to be entitled to revised pay scale without arrears of revised pay scales.
4. The employer i.e. Federation assailed this order by filing an appeal before the Additional Secretary (Cooperation), who allowed the payment of arrears and allowances to the members of the petitioner-Union in the existing running pay scale from 25.9.1998. The plea of the Federation that the arrears of pay be restricted to three ::: Downloaded on - 15/04/2017 21:58:38 :::HCHP 3 years was also rejected vide order dated 3.12.2005. This order of .
Additional Secretary (Cooperation) was assailed by the Federation by means of CWP No. 272 of 2006. The same was decided on 21.6.2007 and the matter was remanded back to the Additional Secretary (Cooperation) for adjudication. The Joint Secretary (Cooperation) of decided the appeal on 3.12.2007 whereby he held that the emoluments of pay under the then pay scales could not be withheld to the members rt of the petitioner-Union and directed the payment of dearness allowance and other consequential benefits which these members were already getting on the date of agreement to be continued to be paid to them. However, they were not entitled to future dearness allowance etc. at par with the employees of the Federation. The prayer of the petitioner-Union to their entitlement of revised pay scale was also rejected.
5. Aggrieved by the aforesaid decision, the petitioner filed CWP No. 342 of 2008 claiming therein the regular pay scale at par with the employees of the Federation with arrears of consequential benefits like arrears of dearness allowance and other benefits etc. CWP No. 1001 of 2008
6. This writ petition was filed by the Federation wherein it too assailed the order passed by the Joint Secretary (Cooperation) on 3.12.2007 on the ground that the petitioners were only entitled to the rates as per agreement dated 18.6.1994 (supra) and were not entitled to annual increments.
CWP No. 5030 of 2010 ::: Downloaded on - 15/04/2017 21:58:38 :::HCHP 47. The petitioner-Union had earlier raised an industrial .
dispute vide Reference No. 32 of 2001 wherein they laid claim to their entitlement to new pay scales with effect from 1.10.1999 at par with the employees of the Federation alongwith all admissible benefits. The same was answered in their favour vide award dated 15.6.2010, which of was assailed by the Federation by way of CWP No. 5030 of 2010. .
8. All the three petitions came to be decided by learned writ rt Court by way of common judgment dated 3.4.2012. CWP No. 342 of 2008 and CWP No. 1001 of 2008 were ordered to be dismissed, whereas CWP No. 5030 of 2010 was allowed and the award passed by the learned Labour Court dated 15.6.2010 was ordered to be set-aside.
However, it was clarified that the petitioners would be entitled to all the monetary benefits which were being paid to them on 18.6.1994 including increments and other emoluments.
9. The aforesaid decision was challenged by the Federation in two separate appeals being LPA No.477 of 2012 and LPA No. 4053 of 2013 and by the petitioner by filing LPA No. 107 of 2015. All the three LPAs were disposed of on August 5, 2015 in the following terms:
"4. Today, the learned Senior Advocate stated at the Bar that her client is ready to do the needful in terms of para- 15 of the impugned judgment. Her statement is taken on record.
5. In the given circumstances, the impugned judgment is modified by providing that all the three writ petitions are disposed of by directing the Himachal Pradesh State Cooperative Marketing and Consumers Federation Limited, Shimla to do the needful and take follow up action in terms of para-15 of the impugned judgment, within eight weeks from today."::: Downloaded on - 15/04/2017 21:58:38 :::HCHP 5
10. Evidently, all these appeals were disposed of in terms of .
para-15 of the judgment passed by the learned writ Court and, therefore, it becomes necessary to reproduce herein this paragraph in its entirety, which reads thus:
"15. The Joint Secretary (Cooperation) in his order dated of 3.12.2007 has held the workmen, as noticed above, entitled to annual increments. However, he has denied the D.A and A.D.A. etc. to the workmen at par with the regular employees of rt the federation. It is made clear by way of abundant precaution that the workmen will get the benefits, which were payable to the workmen on 18.6.1994. Rather, Mrs. Ranjana Parmar has undertaken at the Bar that the monetary benefits to which the workmen were entitled on 18.6.1994 will be paid to them. She has also stated that the workmen have also been paid `1,000/- due to rise in price index. There is merit in the contention of Mrs. Ranjana Parmar and Mr. K.D. Sood, Sr. Advocate that there was no master-servant relationship between the workmen and federation. The federation has merely agreed to help the workmen after the winding up proceedings were initiated. The Liquidator, legally speaking, could not order the federation to engage the workmen after the financial crises in the Central Cooperative Consumers Stores Limited (Super Bazar), Shimla. The Workmen were being paid what was agreed as per letter dated 18.6.1994. There is neither any illegality or perversity or procedural impropriety in order dated 3.12.2007. The same is upheld."
11. Mr. J.L. Bhardwaj, learned counsel for the petitioner would vehemently argue that the respondent despite having undertaken before this Court to pay the monetary benefits to the workmen, has failed to do so. Whereas, Mrs. Ranjana Parmar, Senior Advocate, assisted by Ms. Rashmi Thakur, Advocate, would vehemently argue ::: Downloaded on - 15/04/2017 21:58:38 :::HCHP 6 that the undertaking as given by her client is being strictly adhered to .
both in letter as well as in spirit.
We have heard learned counsel for the parties and have gone through the records carefully and meticulously.
12. At the outset, it may be observed that it is more than of settled that the power of contempt has to be exercised not casually or lightly, but with great care and circumspection. This aspect of the rt matter has already been considered by us in COPC No. 753 of 2015 titled Uma Dutt vs. Shri Srikant Baldi, decided on 9th December, 2015, wherein it was observed as under:
"9. While it is duty of the Court to punish a person who tries to obstruct the course of justice or brings to disrepute the institution of judiciary. However, this power has to be exercised not casually or lightly, but with great care and circumspection.
Contempt proceedings serve a dual purpose of vindication of the public interest by punishment of the contumacious conduct and coercion to compel the contemnor to do what the law requires of him.
10. A question whether there is contempt of Court or not is a serious one. The Court is both the accuser as well as the judge of the accusation. It behoves the Court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising from inveterate practices in Courts and tribunals. It is only when a clear case of contumacious conduct not explainable otherwise, arises that the contemnor must be punished. Punishment under the law of Contempt is called for when the lapse is deliberate and in disregard of one's duty and in defiance of authority.
11. While dealing with the contempt petitions, the Courts are not required to travel beyond the four corners of order, which is alleged to have been disobeyed or disregarded deliberately and willfully. In this connection, it shall be apposite to make a fruitful recapitulation of a recent judgment of the Hon'ble ::: Downloaded on - 15/04/2017 21:58:38 :::HCHP 7 Supreme Court in Ram Kishan Vs. Tarun Bajaj and others 2014 AIR SCW 1218, wherein it was held that:-
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"9. Contempt jurisdiction conferred onto the law courts power to punish an offender for his willful disobedience/contumacious conduct or obstruction to the majesty of law, for the reason that respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizens that his rights shall be protected and the entire democratic fabric of the society will crumble down if the respect of the judiciary is undermined. Undoubtedly, the contempt jurisdiction is a powerful weapon in the hands of the courts of law but that by itself operates as a string of caution and unless, thus, otherwise satisfied of beyond reasonable doubt, it would neither fair nor reasonable for the law courts to exercise jurisdiction under the Act. The proceedings are quasi-
criminal in nature, and therefore, standard of proof required in these proceedings is beyond all reasonable doubt. It would rather be hazardous to impose sentence for contempt on the authorities in exercise of contempt jurisdiction on mere probabilities. (Vide: V.G. Nigam & Ors. rt v. Kedar Nath Gupta & Anr., AIR 1992 SC 2153; Chhotu Ram v. Urvashi Gulati & Anr., AIR 2001 SC 3468; Anil Ratan Sarkar & Ors. v. Hirak Ghosh & Ors., AIR 2002 SC 1405; Bank of Baroda v. Sadruddin Hasan Daya & Anr., AIR 2004 SC 942; Sahdeo alias Sahdeo Singh v. State of U.P. & Ors., (2010) 3 SCC 705; and National Fertilizers Ltd. v. Tuncay Alankus & Anr., AIR 2013 SC 1299).
10. Thus, in order to punish a contemnor, it has to be established that disobedience of the order is wilful. The word wilful introduces a mental element and hence, requires looking into the mind of person/contemnor by gauging his actions, which is an indication of ones state of mind. Wilful means knowingly intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, bonafide or unintentional acts or genuine inability. Wilful acts does not encompass involuntarily or negligent actions. The act has to be done with a bad purpose or without justifiable excuse or stubbornly, obstinately or perversely. Wilful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same.
Therefore, there has to be a calculated action with evil motive on his part. Even if there is a disobedience of an order, 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 contemnor cannot be punished. Committal or sequestration will not be ordered unless contempt involves a degree of default or misconduct. (Vide: S. Sundaram Pillai, etc. v. V.R. Pattabiraman; AIR 1985 SC 582; Rakapalli Raja Rama Gopala Rao v. Naragani Govinda Sehararao & Anr., AIR 1989 SC 2185; Niaz Mohammad & Ors. etc.etc. v. State of Haryana & Ors., AIR 1995 SC 308; Chordia Automobiles v. S. Moosa, AIR 2000 SC 1880; M/s. Ashok Paper Kamgar Union & Ors. v. Dharam Godha & Ors., AIR 2004 SC 105; State of Orissa & Ors. v. Md. Illiyas, AIR 2006 SC 258; and Uniworth Textiles Ltd. v. CCE, Raipur, (2013) 9 SCC 753).
11. In Lt. Col. K.D. Gupta v. Union of India & Anr., AIR 1989 SC 2071, this Court dealt with a case wherein direction was issued to the Union of India to pay the amount of Rs. 4 lakhs to the applicant therein and release him from defence service. The said amount was paid to the applicant after deducting the income tax payable on the said amount. While dealing with the contempt application, this Court held that withholding the amount cannot be held to be either malafide or was there any scope to impute that the respondents intended to violate the direction of this Court.
12. In Mrityunjoy Das & Anr. v. Sayed Hasibur Rahaman & Ors., AIR 2001 SC 1293, the Court while dealing with the issue whether a doubt persisted as to the applicability of the order of this Court to complainants held that it would not give rise to a contempt petition. The court was dealing with a case wherein the statutory authorities had come to the conclusion ::: Downloaded on - 15/04/2017 21:58:38 :::HCHP 8 that the order of this court was not applicable to the said complainants while dealing with the case under the provision of West Bengal Land Reforms Act, 1955.
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13. It is well settled principle of law that if two interpretations are possible, and if the action is not contumacious, a contempt proceeding would not be maintainable. The effect and purport of the order is to be taken into consideration and the same must be read in its entirety. Therefore, the element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act. (See: Sushila Raje Holkar v. Anil Kak (Retd.), AIR 2008 (Supp-2) SC 1837; and Three Cheers Entertainment Pvt. Ltd. & Ors. v. C.E.S.C. Ltd., AIR 2009 SC 735): (2008 AIR SCW 7951)."
of Similar view has been taken by this Bench in Contempt Petition No. 415 of 2014, Rulda Ram Vs. Rakesh Kanwar, decided on 28th February, 2015.
13. rt It would be evidently clear from para-15 of the judgment passed by learned writ Court (supra) that the order passed by the Joint Secretary (Cooperation) dated 3.12.2007 was upheld in its entirety.
Meaning thereby, the petitioners were only held entitled to get the benefits which were payable to them on 18.6.1994 and were specifically held disentitled to the D.A. and A.D.A. etc. at par with the regular employees of the Federation. This conclusion can be further gathered from a perusal of paragraph 13 of the judgment of the learned writ Court, which reads thus:
"13. It is evident that the HIMFED has only agreed to pay the salary to the workmen of their present pay scale as on 18.6.1994.It cannot be read in condition No.4 that the HIMFED has ever agreed to pay the workmen revised pay scales which were to be paid to its regularly appointed employees. The terms and conditions are to be read as they are. Joint Secretary (Cooperation) has correctly interpreted clause 4 of the letter dated 18.6.1994 by coming to a conclusion that the workmen were only entitled to annual increments and other consequential benefits, which were available to them on this date. His findings that the workmen were not entitled to regular pay scale at par with the employees of federation are justifiable."::: Downloaded on - 15/04/2017 21:58:38 :::HCHP 9
14. At this stage, Mr. J.L.Bhardwaj, learned counsel for the .
petitioner would bank upon the letter issued by the Liquidator of the erstwhile employer of the petitioner-Union on 31.7.2012 setting out therein the bill including increments and other emoluments to be paid to the petitioner w.e.f. June, 1994 which according to him have been of calculated on the basis of the order passed by learned writ Court.
15, We have gone through the calculations and find that the rt same are based on complete misreading of the judgment rendered by the learned writ Court as has been affirmed by this Court in LPAs, referred to above. The plea of entitlement of revised pay scales at par with the employees of the Federation was never upheld by this Court.
To the contrary, a specific finding negating this plea has not only been recorded in paras 13 and 15 of the impugned judgment (supra), but a detailed discussion is also found in para 16 of the judgment rendered by learned writ Court, which reads thus:
"16. Now, the court will advert to the challenge laid to award dated
15.6.2010. The workmen had raised the industrial dispute, which led to reference to the Industrial Tribunal-cum-Labour Court. The precise reference which has been made to the Industrial Tribunal-cum- Labour Court is that whether the workmen were entitled for grant of pay scales, annual increment, additional dearness allowances, interim relief and other regular allowances admissible to them on the basis of revision of pay scale with effect from 1.1.1996. The learned Industrial Tribunal-cum-Labour Court has taken into consideration the statement of PW-1 Deep Ram. According to him, their counter-parts working in the federation were getting regular pay scale. PW-2 Sanjeev Sharma has deposed that the salesmen appointed on the regular roll of federation were getting salary of ``9,673/- and `7,899 and the workmen were getting only 2,424/-,` 3,183/- and ` 2,604/-. PW-3 Mehar Chand has testified that he was working as Sales Supervisor in the Super Bazar since 7.6.1966 to 28.4.1994 and used to get the salary on the State Government pattern. RW-1 Ramesh ::: Downloaded on - 15/04/2017 21:58:38 :::HCHP 10 Bhaik has admitted in his cross-examination that the workmen were not getting the revised pay scale alongwith increments and other .
benefits. According to him, the fair price shops, which were earlier functioning under Super Bazar were now functioning under the control of HIMFED. The learned Industrial Tribunal-cum-Labour Court has misconstrued the letter dated 18.6.1994. It has already been noticed hereinabove that what was agreed by the HIMFED to be paid to the workmen was the existing pay scale drawn by them. The of learned Industrial Tribunal-cum-Labour Court has read something in condition No.4, which was not there. It was never agreed by the HIMFED that the workmen would get revised pay scale at par with the employees of the federation. The learned Industrial Tribunal rt could not apply the principle of 'equal pay for equal work' in view of specific terms and conditions used in letter dated 18.6.1994. The workmen have never become the employees of the federation. Even as per clause 4, they had to remain the employees of the Central Cooperative Consumers Store, Shimla. The learned Industrial Tribunal has further erred in law by relying upon the deliberations which had taken place on 28.9.1999. As far as proceedings dated 28.9.1999 are concerned, the Additional Secretary (Cooperation) wrote a letter to the Managing Director on 29.1.2000 to inform him about the follow up action which was taken pursuant to the meeting held on 28.9.1999. The Managing Director of the federation apprised the competent authority on 15.2.2000 that it was running into losses and it could not accede to the demands of the employees of the Super Bazar. He also informed that the proceedings were also placed before the Board of Directors/Management of the federation wherein it was decided that in view of continuous losses being sustained by the federation, the business of Super Bazar be transferred to Kailash District Federation. This information was supplied by the Managing Director of the federation on 15.2.2000 vide Annexure R-3 to Additional Registrar (Mont.), Cooperative Societies, Himachal Pradesh. Thereafter, the matter was reported by the Registrar Cooperative Societies to the State Government on 23.2.2000. Thus, the fact of the matter is that no final decision was taken on the basis of proceedings dated 28.9.1999. The learned Labour Court has erred in law by giving undue weightage to the proceedings dated 28.9.1999 while allowing the claim of the workmen. Thus, the Learned Labour Court has erred in law and has also not correctly appreciated the oral as well as documentary evidence; the award is liable to be set aside."
::: Downloaded on - 15/04/2017 21:58:38 :::HCHP 1116. From the aforesaid discussion, it is abundantly clear that .
the members of the petitioner-Union were never granted any benefit at par with the regular employees of the Federation and rather the writ petition (CWP No. 342 of 2008) filed by them was dismissed and the award passed by the learned Labour Court-cum-Industrial Tribunal in of their favour was specifically set-aside in the writ petition filed by the Federation (CWP No. 5030 of 2010. Therefore, the members of the rt petitioner-Union cannot claim any benefit over and above to what they were held entitled to in para-15 of the judgment passed by learned writ Court as affirmed by learned Division Bench in LPA No. 4053 of 2013 alongwith other connected cases.
17. Even otherwise, the petitioner has placed no material on record whereby it can be gathered that they are not being paid an amount as specifically undertaken by the respondents before the learned writ Court and before the learned Division Bench in LPA.
18. Having said so, we find no merit in this petition and accordingly the notice issued to the respondent is ordered to be discharged. Petition stands disposed of.
( Mansoor Ahmad Mir),
Chief Justice
March 06, 2017. (Tarlok Singh Chauhan),
(GR) Judge.
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