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MCA/1693/2008 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION No. 1693 of 2008
In
SPECIAL
CIVIL APPLICATION No. 7139 of 2005
=====================================================
J
S SAIYED - Applicant(s)
Versus
B
K MEHTA - Opponent(s)
=====================================================
Appearance :
MR
PH PATHAK for Applicant(s) : 1,
None for Opponent(s) :
1,
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 17/06/2008
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
The
petitioner has preferred this petition for initiation of action under
the Contempt of Courts Act on the ground that the award passed by the
Labour Court is not complied with.
2. Heard
Mr.Pathak for the petitioner.
3. The
contention raised on behalf of the petitioner is that the award
passed by the Labour Court was carried before this Court in Special
Civil Application No.7139 of 2005 and this Court has confirmed the
award and has not interfered with the award passed by the Labour
Court and therefore it is contended by Mr.Pathak for the petitioner
that the award has merged with the judgment of this Court, and
therefore it is a question of disobedience to the order passed by
this Court and this Court, therefore, may initiate action under the
Contempt of Courts Act.
4. Upon
the query of the Court about the Division Bench decision of this
Court in the case of K.D. Solanki
v. N.M.Patel,
2002(2) G.L.H. 754, where one of us (Justice Jayant Patel) was
a party, Mr.Pathak submitted that he is aware about the decision,
but he is not aware about the citation. However, he insisted that in
view of the earlier Division Bench judgment of this Court in the case
of Bipinchandra P.Singwala
v. Navin Flourine Industries,
1981 GLR 1070, a different view is required to be taken or
in any case, the matter may be referred to a larger Bench for
reconsideration of the issue. He also submitted that the
distinguishing fact in the present case is that the award is passed
against the Governmental authority which is supposed to act as an
ideal employer and to comply with the award in its true spirit and
having not done the same, this Court may initiate action for contempt
by exercising the discretion.
5. The
rights of the petitioner have been crystallized as per the award of
the Labour Court and it is true that this Court in a petition under
Article 227 of the Constitution did not interfere with the award.
But merely because the petition is rejected would not be sufficient
ground to conclude that it is the order of this Court which is
defied and not that of the Labour Court. It is true that the
principles of doctrine of merger may apply, but perusal of the order
of this Court in the writ petition shows that this Court has not
given any direction to the authority to comply with the award and
therefore, the rights as they were pursuant to the award did exist
even after the order passed by this Court. In substance and in
reality, the present petition is for compliance to the award passed
by the Labour Court.
6. In
the above referred decision of this Court in the case of K.D.Solanki
(supra), all contentions which are sought to be canvassed in the
present petition by Mr.Pathak are considered. It was, inter alia
observed at para 12 as under:
?STherefore,
the powers to punish for the contempt are conferred upon
the High Court by the Constitution. Therefore, the Contempt
Act is to be read and interpreted accordingly. On true
construction of Section 10 of the Contempt Act it transpires
that by using the language in section that ‘every High Court
shall have and exercise the same jurisdiction’ is meant
by the legislature to make a declaration of power of the High
Court, which is, even otherwise, conferred by the Constitution
and the words ‘shall exercise the same jurisdiction’ can not be
read so as to give a mandate by the legislature to the High
Court to exercise the jurisdiction in all cases’. At this
stage, it would be worthwhile to refer to the decision of the
Apex Court in the matter of Baradakanta Mishra vs. Mr.Justice
Gatikrushna Misra, CJ of Orissa H.C. reported in AIR 1974 SC 2255
wherein the Apex Court speaking through P.N.Bhagwati,J(As His
Lordship then was) observed that “No one has a statutory or
common law right to say that he is entitled as a matter of course
to an order for committal because the alleged contemner is
guilty of contempt. All that he can do is to move the court and
draw its attention to the contempt alleged to have been committed
and it will then be for the court, if it so thinks fit, to take
action to vindicate its authority and commit the alleged
contemner for contempt. It is for the court in the exercise of
discretion to decide whether or not to initiate a proceeding for
contempt …. There is no right in any one to compel the court
to initiate a proceeding for contempt even where a prima facie case
appears to have been made out. The same position obtains even
after a proceeding for contempt is initiated by the court on
a motion made to it for the purpose.” The Apex Court
further observed that ” if right is created to the party
who moves or draws the the attention of the court, the
court itself decides not to initiate the proceedings for
contempt or refuse to initiate the proceedings for contempt, there
is no right conferred even to such a party for preferring
appeal”. Therefore, it can not be said at all that it is
mandatory for the High Court to exercise powers to initiate
proceedings under the Contempt Act, but once the contempt or
breach of the order of the court subordinate to it is brought
to the notice by moving appropriate application, it is for the High
Court to exercise its discretion to decide whether or not to
initiate the proceedings for contempt. Therefore, the
submission of Mr.Soni that it is mandatory for the High Court to
exercise the powers of contempt is absolutely without substance and
deserves to be rejected on the face of it.??
Further,
after considering the various decisions of the Apex Court and having
taken into consideration the various provisions of the Industrial
Disputes Act, it was, inter alia, concluded in para 15 as under:
?SIn
view of the aforesaid conclusion also, it has got to be concluded
that as per the inbuilt mechanism of the Act after the award having
been passed by the Labour Court or the Industrial Tribunal, the
Act provides :
(i) The
executing machinery for the purpose of its enforceability as
per section 29 read of section 34 of the Act for conviction
and by imposing penalty as provided under section 29 of the Act.
(ii) The execution of the award by a special mode is provided by independent proceedings as contemplated under section 33C of the Act. The said executing machinery or the executing power of the Labour Court includes the power for recovering money by issuing certificates and such amount has to be recovered as per Land Revenue Code.??
It was also observed at para 25 as under:
?S25. 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 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.
At
para 27 and 28 it was concluded as under:
?S27. 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 petitioners in the present case to resort
to such remedies provided under the Act for implementation
and execution of the award. In view of above circumstances
as mentioned and narrated in case of Bipinchandra (supra) and
Shankarpuri(supra) can not 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 or the Labour Court/Industrial Tribunal
for execution and implementation of awards.??
Even
the decision upon which reliance is placed by learned counsel for
the petitioner in the case of Bipinchandra P.Singwala (supra) is
considered. Therefore, considering the above referred decision of
the Division Bench of this Court in the case of K.D.Solanki (supra),
we are not inclined to take a different view than the one taken by
the Division Bench of this Court which is binding to this Court.
Further in any case, the aforesaid decision in the case of
Binpinchandra P.Singwala (supra) was considered and therefore it is
not a case where disagreement deserves to be recorded for referring
the matter to the Larger Bench. In any case, the decision of a
coordinate Bench of this Court which is a recent decision is binding
to this Bench.
7. It
is not a matter where there is no remedy available to the petitioner
for implementation or enforcement of the award of the Labour Court.
When there is an inbuilt mechanism provided under the Act for
enforcement of the award passed by the Labour Court, we are not
inclined to initiate proceedings under the Contempt of Courts Act at
this stage.
8. In
view of the above, the petition is not entertained at this stage and
is disposed of accordingly.
(Jayant
Patel, J.)
(Akil
Kureshi, J.)
(vjn)
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