Bhagwan Trimbak Deokar vs Zilla Parishad on 12 August, 2011

Bombay High Court
Bhagwan Trimbak Deokar vs Zilla Parishad on 12 August, 2011
Bench: Nishita Mhatre, M.T. Joshi
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            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
                              .....


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                               (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.

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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

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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.

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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

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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.

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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 indefensible

contention 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.

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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

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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

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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

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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

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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”

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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.)




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