1 wp7802.09
IN THE HIGH COURT OF JUDICATURE OF BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 7802 OF 2009
1. Bhagwan Trimbak Deokar, Age : 55
years, Occ : Service, R/o A &
Mehekari, Taluka & Dist. Ahmednagar.
2. Sk. Khudabaksh Sk. Suleman, Age :
49 years, Occ : Service, R/o Shah
Colony, Mukund Nagar, Fakirwada,
Ahmednagar.
3. Arjun Dada Ghadge, Age : 44 years,
Occ : Service, R/o Indira Nagar, Nagar-
Arangaon Road, Ahmednagar.
4. Adinath Khanderam Pangire, Age : 47
years, Occ : Service, R/o Nehru
Maidan, Kumbhar Galli, Vambore,
Taluka Rahuri, District Ahmednagar.
5. Anat Deshrath Bidve, Age : 48 years,
Occ : Service, R/o Mal Galli, Bhingar,
Ahmednagar.
6. Janardhan Appa Bade, Age : 42 years,
Occ : Service, R/o 55, Sucheta Nagar,
Kedgaon, Ahmednagar.
7. Prabhawati Prabhakar Kaldate, Age :
Major, Occ : Household, R/o 254, Time
Wada, Sangle Galli, Ahmednagar
8. Bhausaheb Martand Landge, Age : 44
years, Occ : Service, R/o Baburde
Ghumat, Tq. & Dist. Ahmednagar
..PETITIONERS
-VERSUS-
Zilla Parishad, Ahmednagar, Dist.
Ahmednagar, Through Chief Executive
Officer.
..RESPONDENT
.....
Shri P.V. Barde, Advocate for petitioner.
Shri S.T. Shelke, Advocate for respondent
.....
::: Downloaded on - 09/06/2013 17:38:48 :::
2 wp7802.09
(CORAM : SMT. NISHITA MHATRE AND
M.T. JOSHI, JJ.
Judgement reserved on : 05th August, 2011
Judgement pronounced on : 12th August, 2011
JUDGEMENT (PER SMT. MHATRE, J.)
1. The Writ Petition has been filed by the workers employed
with the Zilla Parishad, Ahmednagar i.e. the respondent herein.
Complaint (ULP) No. 141 of 1987 was filed under Items 5, 6, 9 and
10 of Schedule IV of the Maharashtra Recognition of Trade Unions
and Prevention of Unfair Labour Practices Act, 1971 (hereinafter
referred to as “the M.R.T.U. & P.U.L.P. Act”) by the petitioners
seeking permanency in service. The Industrial Court by its order
dated 4th April, 1990 declared that the respondent had committed
an unfair labour practice under Item 6 of Schedule IV of the
M.R.T.U. & P.U.L.P. Act. The respondent was directed to accord
the petitioners the status and benefits of permanency with effect
from 1st July, 1987. The Industrial Court also directed the
respondent to fix the salary and allowance of the petitioners in the
time scale as per the posts held by them and to further pay them
all monetary benefits, including bonus on or before 30th June,
1990, failing which, the Zilla Parishad was liable to pay the interest
at the rate of 12% p.a. with effect from 1st April, 1990 till the
realization of the amount.
::: Downloaded on – 09/06/2013 17:38:48 :::
3 wp7802.09
2. Instead of abiding by the orders of the Industrial Court, an
agreement was entered into by the respondent with the petitioners
that an independent trust would be created by the respondent with
the petitioners as employees of the trust. The agreement was to
be in force from 1st October, 1990 to 30th September, 1995. The
parties agreed that in the event the entire proposal was not
implemented as scheduled, the petitioners would be reverted as
permanent employees of the Zilla Parishad. It appears that the
application for registration of the trust was rejected by the Assistant
Charity Commissioner, and therefore, the agreement between the
parties was not implemented. Complaint (ULP) No. 219 of 1996
was preferred by the petitioners under item 9 of Schedule IV of the
M.R.T.U. & P.U.L.P. Act in respect of the non implementation of the
order passed in Complaint (ULP) No. 141 of 1987 on 27th January,
1992. The Industrial Court by its order dated 26th February, 2007
held that the respondent had committed an unfair labour practice
and directed the respondent to implement the order.
3. This order of the Industrial Court was challenged by the
respondent in Writ Petition No. 3162 of 2008 before this Court. A
statement of the Counsel of the respondent was recorded on the
basis of the communication received by him from the Chief
::: Downloaded on – 09/06/2013 17:38:48 :::
4 wp7802.09
Controller-cum-Accountant and Finance Officer, Zilla Parishad,
Ahmednagar, that the petitioners, who were the respondents in that
Petition, would be paid the pay scale and other benefits till they
were in service. The Petition was disposed of in view of this
statement.
4. According to the petitioners, they have neither been
accorded the status of permanency nor been paid the arrears of
the salary and other allowances as directed by the Industrial Court.
They have filed the present Petition seeking a direction to the
respondent to comply with the order dated 4th April, 1990 passed
in Complaint (ULP) No. 141 of 1997 by the Industrial Court,
Ahmednagar.
5. In our opinion, such a Writ Petition is not maintainable. The
petitioners are entitled to take recourse to the provisions of the
M.R.T.U. & P.U.L.P. Act for implementation of the order and for
claiming monetary benefits under Section 50 of the M.R.T.U. &
P.U.L.P. Act. As regards the prayer that status and privileges of
permanency not having been extended to the petitioners despite
the order of the Industrial Court, the petitioners are free to take
such action as is available to them in law, including filing of a
Complaint under Section 48(1) of the M.R.T.U. & P.U.L.P. Act.
::: Downloaded on – 09/06/2013 17:38:48 :::
5 wp7802.09
6. Shri. Barde, the learned Advocate appearing for the
petitioners points out that approaching the Labour Court under
Section 48(1) for disobedience of the order passed by the
Industrial Court is not an alternate or efficacious remedy as
sanction from the State Government would have to be obtained
before prosecuting the proceedings against the Chief Executive
Officer of the Zilla Parishad. He points out that a learned Single
Judge of this Court in the case of “N.J. Lawankar & ors. V/s Anil
Devidas Garad and ors” reported in “2008(1) Bom.C.R. (Cri.)
175” has held that before a criminal complaint is filed under
Section 48(1) of the M.R.T.U. & P.U.L.P. Act against a public
servant, sanction for prosecuting him would have to be obtained
under Section 197 of the Criminal Procedure Code. Furthermore, it
has been held that when a person is not a party to the original
complaint, he cannot be made party to the criminal complaint filed
under Section 48(1) of the M.R.T.U. & P.U.L.P. Act. Mr. Barde
points out that in view of the aforesaid judgement the petitioners
approach under Section 48(1) of the M.R.T.U. & P.U.L.P. Act would
be in futile.
7. We have been informed that a another learned Single Judge
of this Court in “Uttam Dattatraya Kahane V/s Chandramohan
::: Downloaded on – 09/06/2013 17:38:48 :::
6 wp7802.09
Hangekar” in Criminal Writ Petition No. 203 of 2010 decided on
1st March, 2011 has taken a contrary view although the
judgement in Lawankar’s case was pointed out to the learned
Judge.
8. In Lawankar’s case, a criminal complaint was filed against an
IAS Officer, who was the Chairman and the Managing Director of
the M.S.R.T.C. Mumbai. It was the contention of the workmen in
Lawankar’s case that the Chairman and the Managing Director and
other Officers had violated an order of the Industrial Court, and
therefore, were liable to be prosecuted for disobedience of an
order passed by the Industrial Court. The learned Single Judge
relied on the decision of the Supreme Court in the case of “M.R.
Patil V/s Member, Industrial Court, reported in “1997(4)
Bom.C.R. (S.C.) 636” and held that a prosecution under the
provisions of the M.R.T.U. & P.U.L.P. Act could not be launched
against a public servant, without the sanction of the State. The
Court also observed that a complaint for having committed a
contempt could not be filed against the Officer of a company, who
was not a party to the original complaint.
9. In the case of “M.R. Patil and another V/s Member,
Industrial Court, and another reported in “1997 A.I.R. S.C.
::: Downloaded on – 09/06/2013 17:38:48 :::
7 wp7802.09
1429″, the Supreme Court considered the circumstances in which
a cognizance of offences under the M.R.T.U. & P.U.L.P. Act can be
taken by the Labour Court. It was held that the provisions of
Section 39 of the M.R.T.U. & P.U.L.P. Act is mandatory. A
complaint about the alleged breach or non-compliance of any
direction or order passed by the Industrial Court can be filed only
by a person affected or by a recognized union or by the
Investigating Officer. Since the complaint was filed by an
unregistered union, the Court held that the complaint under Section
48(1) by such a body of workers was not maintainable. It,
therefore, quashed the prosecution pending before the Labour
Court. While disposing of this Criminal Appeal, the Supreme Court
has observed in paragraph no.18 thus :
“18. As the above discussion of ours is
sufficient to quash the impugned prosecution we need
not discuss the other patent infirmities relating to the
procedure adopted by the Labour Court in dealing with
the complaint and to the rejection of the indefensiblecontention raised on behalf of the appellant No.1
about the maintainability of the prosecution in view of
Section 197, Cr.P.C.”
These are the observations, which are relied on by the learned
Single Judge in Lawankar’s Case for concluding that sanction for
prosecution is required.
::: Downloaded on – 09/06/2013 17:38:48 :::
8 wp7802.09
10. It would be appropriate at this stage to consider some of the
provisions of the M.R.T.U. & P.U.L.P. Act. The Act has been
enacted for the recognition of the Trade Unions and for prevention
of unfair labour practices on the part of the employers, trade unions
and workmen. An independent machinery is constituted under the
Act for enforcing the provisions relating to an unfair labour
practices and to provide for the matters connected with the
aforesaid purposes.
11. The Chapter-VIII of the M.R.T.U. & P.U.L.P. Act prescribes
the powers of the Labour Court and the Industrial Court to try
offences under the Act. Section 38 empowers the Labour Court to
try an offence punishable under the Act. Cognizance of an offence
can be taken by the Labour Court only on a complaint of facts
constituting such an offence being made by the person affected
thereby or by a recognised union or on a report in writing by the
Investigating Officer. Section 40 prescribes the powers of the
Labour Court and the procedure to be followed in such trials. It
stipulates that the Labour Court shall have all the powers under the
Code of Criminal Procedure of a Presidency Magistrate in Greater
Bombay and a Magistrate of the First Class elsewhere, and in the
trial of every such offence, the procedure laid down in Chapter
::: Downloaded on – 09/06/2013 17:38:48 :::
9 wp7802.09
XXII of Code of Criminal Procedure for a summary trial, in which an
appeal lies, is to be followed. The rest of the provisions of the Code
of Criminal Procedure are to be exercised by the Court so far as
they may be applicable to such a trial. Section 41, empowers the
Labour Court to impose a punishment higher than contained in
Section 32 of the Code of Criminal Procedure. Chapter IX of the
M.R.T.U. & P.U.L.P. Act deals with the penalties, which can be
imposed. Section 48 contemplates that any person, who fails to
comply with an order of the Court passed under Clause (b) of sub-
section (1) or sub-section (2) of Section 30 of the Act shall, on
conviction, be punished with imprisonment for three months or with
a fine, which may extend to five thousand rupees. Under sub-
section (2) of Section 48, a person, who omits to produce any
document or to furnish information which he is legally bound to
produce, or refuses to bind himself by an oath or affirmation to
state the truth or refuses to answer any question demanded of him
touching the subject or insults or causes any interruption in the
judicial proceedings, either before the Industrial Court or the
Labour Court, he shall be punished with imprisonment for a term
which may extend to six months or with fine which may extend to
one thousand rupees or both. Thus, Section 48 prescribes the
nature and instances of contempt, which are punishable under the
M.R.T.U. & P.U.L.P. Act. The issue is whether, while deciding
::: Downloaded on – 09/06/2013 17:38:48 :::
10 wp7802.09
whether a person has committed a contempt of an order of the
Labour Court or of the Industrial Court, sanction must be obtained
from the Government under Section 197 of the Code of Criminal
Procedure, before he can be prosecuted. As we have already
noted, the offences which are punishable under the Act, are to be
tried by the Labour Court by following the procedure laid down in
Chapter XXII of the Code of Criminal Procedure for summary trial,
in which an appeal lies and the rest of the provisions of the Code of
Criminal Procedure are made applicable so far as they may apply
for such a trial. Section 197 of the Code of Criminal Procedure
provides that sanction from the appropriate Government is required
to prosecute a public servant, if he is a accused of any offence
alleged to have been committed by him while acting or purporting
to act in the discharge of his official duty.
12. In our opinion, though the procedure for a summary trial is to
be followed while dealing with a complaint under Section 48(1) of
the M.R.T.U. & P.U.L.P. Act, it does not necessarily mean that the
provisions of Section 197 would be applicable to a complaint filed
under Section 48 of the M.R.T.U. & P.U.L.P. Act. It is only the
procedural aspect which is borrowed from the Code of Criminal
Procedure while dealing with a complaint under Section 48(1) and
not the substantive aspects of the Code. The bar to prosecution for
::: Downloaded on – 09/06/2013 17:38:48 :::
11 wp7802.09
offences contained in the Code would not apply automatically to
the provisions of the M.R.T.U. & P.U.L.P. Act. This is because the
object of the M.R.T.U. & P.U.L.P. Act is to prevent unfair labour
practices. Placing a constraint on an employee or a recognized
Union in filing a complaint under Section 48(1) of the M.R.T.U. &
P.U.L.P. Act would amount to rewriting the legislation. The
provisions of the Code of Criminal Procedure cannot be
incorporated in to provisions of the M.R.T.U. & P.U.L.P. Act. All that
section 40 prescribes is that the procedure for a summary trial
must be adopted and the provisions of the Code so far as they are
applicable for the conduct of such a trial must be followed. This
would include the issuance of process, recording of a plea of
accused, issuing summons to a witness directing him to attend or
to produce any document or material at the hearing etc. The
provisions of Section 197 of the Code cannot be imported into the
M.R.T.U. & P.U.L.P. Act. Sanction is to be obtained under Section
197 of the Code for prosecuting a public servant who has
committed an offence. Disobedience of an order of the Labour
Court or the Industrial Court may not be strictly speaking an
offence. It would amount to a contempt of court for which a
separate machinery is provided under the MRTU and PULP Act,
rather than having to take recourse of the Contempt of Courts Act.
The provisions of Section 48(1) are akin to the provisions for
::: Downloaded on – 09/06/2013 17:38:48 :::
12 wp7802.09
punishing a person for having committed a civil contempt as
stipulated in the Contempt of Courts Act. In fact the marginal note
of this section is “Contempt of Industrial or Labour Courts”. It is
true that the marginal note may not aid in construction but it can
certainly indicate the intent of the section. Once an act of contempt
is brought to the notice of the Court which the court takes
cognizance of, it is a matter between the Court and the alleged
contemnor, and therefore, such sanction would not be required. In
such circumstances, in our opinion, the bar of Section 197 being
invoked would not arise.
13. Unfortunately, the learned Single Judge in Lawankar’s case
has misconstrued the observations of the Supreme Court in
paragraph 18 in M.R. Patil’s case. Although, the Supreme Court
has observed that a contention was raised on behalf of the
appellant before it regarding the maintainability of the prosecution
in view of Section 197 of the Code of Criminal Procedure, the Apex
Court has not considered this aspect at all since the appeal before
it was disposed of on another issue.
14. Mr. Barde has relied on the judgements of the Supreme
Court in the case of “Choudhary Parveen Sultana V/s State of
West Bengal and another” reported in “A.I.R. 2009 S.C. 1404”
::: Downloaded on – 09/06/2013 17:38:48 :::
13 wp7802.09
and “Parkash Singh Badal and another V/s State of Punjab
and others” reported at “AIR 2007 S.C. 1274” in support of his
contention that a person who breaches the law or an order of the
court cannot be said to be acting in his official capacity. He
submits that excesses or misuse of authority cannot be protected
in case of a public servant under Section 197 of the Code of
Criminal Procedure. We need not advert to these judgements as in
our view the provisions of section 197 of the Code cannot be read
into the provisions of the MRTU and PULP Act for dealing with a
case of contempt.
15. In these circumstances, we see no reason to entertain the
Writ Petition. The petitioners have ample remedies available to
them to redress their grievance. The Petition is rejected, relegating
the petitioners to avail of alternate remedies under the Labour
laws.
(M.T. JOSHI, J.) (SMT. NISHITA MHATRE, J.)
ga s/wp7802.09
::: Downloaded on - 09/06/2013 17:38:48 :::