Madan Mohan Saha vs Sri Goutam Chakraborty

Sambuddha Chakrabarti, J.—The present petitioner in the contempt application filed a writ petition against an Award dated February 6, 2004 passed by the Learned Judge of the Central Government, Industrial Tribunal at Calcutta. By the said Award, the tribunal had held that the petitioner shall be deemed to have been continuing in service as before and directed the management of the Calcutta Telephones to reinstate him in service as a daily rated Majdur with a consequential order.

This order was challenged by the employers in relation to the management of the Calcutta Telephone by a writ petition being W.P. No. 12942 (W) of 2009.

In the said writ petition, the respondent No. 4 i.e., Madan Mohan Saha, took out an application being CAN 3619 of 2010 u/s 17B of the Industrial Disputes Act. Affidavits in connection with the said application were exchanged between the parties.

The said application was disposed of by an order dated October 10, 2012 by directing the writ petitioner to pay a sum equivalent to the wages last drawn by the present petitioner/respondent No. 4, month by month. It was further directed that such payment should be made by the 7th of the next succeeding month. The wages for the month of October, 2012 was directed to be paid by November 7, 2012 and payment of each succeeding month was to be made by the 7th of the month next following. So far as the arrear amount to be paid by the writ petitioners to the applicant workmen was concerned the same was directed to be paid by the writ petitioner by four equal monthly installments which would be over and above the monthly wages to be paid to the applicant. The said order was passed upon a contested hearing in presence of the learned Advocates for both the parties.

On March 11, 2013, the respondent No. 4 filed the present application for contempt, inter alia, alleging that the applicant workman had made a representation to the alleged contemnor No. 1 for implementation of the order passed by this court and the alleged contemnor No. 1 was deliberately and willfully violated the same. It was further alleged that the alleged contemnor No. 2 sat in appeal over the order of this court and declined to act on the basis of the copy of the order which was downloaded from the server of the High Court as informed to the alleged contemnor by a letter dated January 1, 2013.

After the petitioner had filed the application for contempt the writ petitioner took out an application, being CAN 3390 of 2013, inter alia, praying for recalling and/or clarifying the order passed on October 10, 2012. By an order dated December 18, 2013, This Court dismissed the said application for clarification and/or modification as not maintainable as no case was made out by the writ petitioner for the reliefs prayed for.

Thereafter, the application for contempt being CPAN 448 of 2013 was directed to be placed in the list.

On February 17, 2014 I directed the petitioner to serve a copy of the application for contempt upon the alleged contemnors with a direction to file an affidavit to the said application on the next date of hearing. The matter was directed to appear after four weeks. On March 19, 2014, the learned Advocate for the alleged contemnors prayed for extension of time by two weeks to file affidavit to the application for contempt. Time to file affidavit was extended. On April 2, 2014 when the matter appeared in the list none appeared for the alleged contemnors and in spite of opportunities to file affidavit to the application for contempt no affidavit had been filed. I, therefore, issued a rule, returnable on May 13, 2014.

On May 13, 2014, Sri Soumen Banerjee, the alleged contemnor No. 2 was present in Court. The Learned Advocate for the alleged contemnors submitted that against the order passed by me u/s 17B of the Industrial Disputes Act, the writ petitioner had already filed an appeal and the same was pending. Accordingly, the hearing of the application of the contempt petition was adjourned for a period of 3 weeks after the reopening of the court after the summer vacation to enable the alleged contemnors to bring an order from the appellate court.

When the matter next appeared on June 25, 2014 Mr. Chatterjee, the learned Advocate for the alleged contemnors prayed for an adjournment of the hearing of the Rule for a period of 3 more weeks. This time considering the fact that the order u/s 17B of the Industrial Disputes Act was passed on October 10, 2012 and an unsuccessful modification was sought for by the alleged contemnors rather belatedly, instead of granting the adjournment as prayed for by Mr. Chatterjee I fixed the matter for hearing on July 7, 2014 so as to again enable the alleged contemnors to obtain an appropriate order from the appellate court.

On the July 25, 2014 when the matter next appeared Mr. Chatterjee submitted that the writ petitioner could not file any appeal as the concerned department of the court did not supply any certified copy of the order in respect of which the application for contempt had been filed. Mr. Chatterjee submitted that the application for obtaining a certified copy of the order was made "immediately" after the order was passed by me. I directed the alleged contemnors to file an affidavit to the Rule within 2 weeks positively. It was submitted to me that since the alleged contemnor No. 1 had already retired from service, no copy of the Rule could be personally served upon him. I directed the alleged contemnor No. 2 to furnish the residential address of the alleged contemnor No. 1.

On July 28, 2014, Mr. Chatterjee produced the residential address of the alleged contemnor No. 1. Accordingly, I issued a fresh Rule upon the alleged contemnor No. 1.

On August 25, 2014, Mr. Chatterjee filed an affidavit of compliance on behalf of both the alleged contemnors. The alleged contemnor No. 1 was also present in court. Mr. Chatterjee further submitted that the appeal filed by them was pending before the Division Bench. Mr. Madhusudhan Dutta, learned Advocate appearing for the present petitioner in the application for contempt submitted that since the appeal was defective the Division Bench had directed, by an order dated August 13, 2014, the appeal to go out of the list.

It appears from the affidavit of compliance of the alleged contemnor No. 1 that the petitioner in the present application for contempt had informed the alleged contemnors that his last wages were Rs. 1,400/- per month. The alleged contemnor had taken a stand that this sum was not mentioned in my order and there was no evidence of the wage either in the written statement or in the Award of the learned Tribunal.

According to the alleged contemnor No. 1 being an employee of the Government of India deployed in a public sector enterprise, he could not direct for any calculation in the absence of materials on record. The present petitioner was a daily rated mazdoor and was engaged on a need based system. The office of the alleged contemnor No. 1 could not find any record about the daily rate as agreed to be paid by the applicant. He further alleged that the letter of the writ petitioner claiming benefit u/s 17B contained wrong information about the daily rated wage of the petitioner. Since no record was available the present petitioner was requested to attend the office. But he did not. The learned Advocate appearing for the B.S.N.L. also could not provide them with any certified copy of my order.

The alleged contemnors stated that the applicant by making wrong claim had confused the issue and committed wrong by raising the claim of Rs. 1,400 as the last drawn wages. Because of the purported confusion during his employment, he could not direct the office to make payments which is not permissible in law and therefore he prayed to this Court to accept his apologies.

The alleged contemnor No. 2 had also filed his affidavit of compliance almost on the same line as that of the alleged contemnor No. 1. It was also his case that the petitioner in the present application was a daily rated mazdoor on no work no pay basis and he wrongly claimed Rs. 1,400/- as his last wages. It was also his stand that there was no adjudication in the Award on in his evidence on the point of his last drawn wages and he could not provide any certified copy of the order.

I have heard Mr. Chatterjee in justification of the conduct of the alleged contemnors and have given my very anxious consideration to his submissions as well as the stand taken by the alleged contemnors.

It is hardly any defence for an alleged contemnor to submit that the order in respect of which the application for contempt had been filed did not mention the wages last drawn by the workman. I specifically directed the writ petitioners to pay a sum equivalent to the wages last drawn by the petitioner month by month and fixed a certain dated by which such amount was to be paid. The quantum of the last wages is not required to be mentioned separately by any Court. If the petitioner in the present application was a daily rated mazdoor the respondents could have easily worked on that and arrived at the actual figure.

If the records were not available in the concerned office it was an unfortunate state of affairs for which the workman cannot be held responsible in any manner. The alleged contemnors might have approached the Court in time and explain their difficulties or filed an appeal against the order passed by me on October 10, 2012. They did nothing.

As a justification for not filing the appeal on time Mr. Chatterjee had repeatedly submitted that in spite of making an application for a certified copy "immediately" after my order the same till date has not been given to the applicant. He has thereby laid the blame at the doors of the department. It appears from order dated July 25, 2014 that Mr. Chatterjee had produced a bunch of papers in Court from which it appeared that the application for obtaining a certified copy of the order was made long after I passed the order on October 10, 2012. As such Mr. Chatterjee''s submission that the application was made "immediately" thereafter is factually incorrect.

Be that as it may, even if an application for a certified copy was made belatedly the department was nonetheless required to provide an applicant with a certified copy. But from a specific question made by me to Sri Aniruddha Sarkar, the learned Advocate for the alleged contemnor it transpired that by not putting in the requisites he had allowed the application for certified copy to be lapsed. If the application for certified copy is lapsed the question of providing the same did not arise and the concerned department of this Court is not responsible in any manner.

It appears that the alleged contemnors started taking initiatives only after the petitioner filed an application for contempt. The first step was filing an application for modification which was dismissed. The alleged contemnors did not file any appeal against that order. They never brought to my notice any purported difficulty said to have been faced by them before the application for contempt was filed.

I quite agree with the submission made by the petitioner in this application for contempt that they were sitting tight over the matter without taking any step to comply with the Court''s order. The admitted petition is that an appeal was filed only after the Rule was issued. That apart, the alleged contemnors ought to have brought it to my notice that the Division Bench had already directed the appeal to go out of the list. This non-disclosure to the court does not lend support to the claim of bona fide on the part of the alleged contemnors.

The stand taken by alleged contemnor No. 1 that being an employee of the Government of India he could not direct any calculation to be made in the absence of the materials on record is a statement not expected of a responsible person so highly placed in office, particularly in his affidavit to Rule for contempt. His inaction clearly suggests that he was not interested to comply with the order of the Court and practically took no steps for proper implementation of the order.

Thus, the alleged contemnors behaved in a manner which must definitely be held to be contumacious. In view of what has been stated above, I have absolutely no hesitation to hold that the alleged contemnors willfully and deliberately did not comply with the order of this court. The alleged contemnor No. 1 has retired from service on March 31, 2014 i.e. long after the time fixed for compliance of the order had expired. The conduct of the contemnors was unfortunate and the stand taken by them was defying. The defence taken by the contemnors is not at all convincing.

It is true that the contemnors have tendered their apologies. But from the way they had dealt with the Court''s order and in view of the stand taken by them in their affidavits, they are not to be discharged upon acceptance of apologies. The apologies were more formal than sincere. Even when tendering apologies they never expressed that they would comply with the order. If the contemnors are allowed to be let off merely because they had expressed their apologies after deliberately committing acts of contempt, there shall be loss of public confidence in the administration of justice. This will be an indirect encouragement to others to flout the Court''s order with impunity. Any misplaced generosity will only encourage further blot on the judicial system.

In such view of it, I hold both the contemnors to be guilty of contempt and sentence each them to pay a fine of Rs. 2,000/- within six weeks from today, in default, they shall be taken to custody and shall suffer Simple Imprisonment for 15 days.

The application for contempt is allowed.

The Rule is made absolute.

Urgent xerox certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.