Mahavir Singh vs Gian Parkash Khurana and anr.

S.P. Goyal, J.

The services of the petitioner were terminated by the respondent and on a reference having been made under the Industrial at Disputes Act, an award was male whereby the termination order was set aside and he was ordered to be reinstated with full back wages. The respondent challenged the award in this Court through a petition. Civil Writ Petition] No. 5087 of 1986, which was admitted to hearing and the reinstatement of the petitioner stayed subject to the provisions of section 17B of the said Act. In spite of an affidavit having been filed by the petitioner in accordance with the requirements of Section 17B and an application made to the management, his backwages were not paid. He has, therefore, filed this petition under the Contempt of Courts Act, 1971 (for short,the Act) for taking proceedings against the respondent for deliberately disobeying the order of the Industrial Tribunal.

The respondent, in his written statement, has stated that all the current wages in accordance with the Provisions of Section 17B of the Industrial Disputes Act have been paid to the petitioner. So far as the back wages are concerned, it is not disputed that the same have not been paid, but the plea taken is that the petition challenging the award having been admitted, the management was under no obligation to pay the back wages.

From the pleadings of the parties, it is evident that there is no dispute on facts. The award ordered the reinstatement, of the petitioner, with full back wages. On the Petition filed by the respondent. the reinstatement of the petitioner was stayed subject to the provisions of Section 17 B of the Industrial Disputes Act and there was no order staying the payment of the back wages. Still the question arises whether the noncompliance with the award simpliciter would amount to contempt of Court within the meaning of Section 2(b) of the Act.

The learned counsel for the petitioner, relying on the definition of

"civil contempt" contained in Section 2(b) of the Act urged that the act of the respondent in not paying the back wages in spite of a written request having been made, would amount to wilful disobedience of the award and, therefore, would be civil contempt within the meaning of the said provision. In support of his contention, he relied on a Division Bench decision of this Court in C.O. C.P. No. 255 of 1976 (Jagmohan Lal v. K.R. Awasthy) decided on May 7, 1979. In that case the question referred to the Division Bench was as to whether the Tribunal constituted under the Industrial Disputes Act was a Court subordinate to the High Court for the purposes of the Contempt of Courts Act or not, which was answered. An the affirmative. Obviously, that decision has no hearing on the question in hand.

It is difficult to subscribe to the view that simple noncompliance with any judgment, decree or order of the Court would amount to contempt on the part of the judgment debtor as otherwise all laws and procedures relating to the enforcement of the decrees and orders would be rendered nugatory and meaningless. In the definition of " civil contempt" the legislature has used two different words qua judgment and decrees etc. and the undertaking given to the Court. So far as the judgments and decrees etc. are concerned, civil contempt means their wilful disobedience whereas in case of undertaking given to the Court, it means its wilful breach. In case of an undertaking given to the Court, if the person concerned fails to honour it would obviously it amount to its wilful beach because he fails to do or abstain from doing some act which he promised to the Court through his undertaking. So this, very act of not honouring the undertaking would amount to civil contempt in such a case. On the other hand, in case of wilful disobedience of any judgment, some positive act on the part of the judgment debtor signifying disobedience of the judgment has to be alleged and proved. By passing a decree, neither the Court gives any direction to the judgment debtor to obey it within any specified time nor he undertakes to do so. But, apart from noncompliance some act on his part shows disobedience of the judgment or the decree, such an act may amount to civil contempt if it is wilful and continuous. For example, a decree is passed against, A for executing a sale deed of a house by way of specific performance of an agreement and delivery of its possession. Instead of complying With the decree he either demolishes, the house or transfers it to a third party. So, he not only fails to comply with the decree but disobeys it by some over act on his part. In such a case, his act may amount to civil contempt if it is shown to be wilful.

The question whether the disobedience of a decree or order amounts to civil contempt came before the Supreme Court in Babu Ram Gupta v. Sudhir Bhasin and another, AIR 1979, Supreme Court 1528 and was answered in the negative with the following observations :

"In the instant case, however, as indicated above, there is no application nor any affidavit nor any written undertaking given by the appellant that he would cooperate with the receiver or that he would hand over possession of the Cinema to the receiver. Apart from this, event the consent order does not incorporate expressly or clearly that any such undertaking had been given either by the appellant or by his lawyer before the Court that he would hand over possession of the property to the receiver. In the absence of any express undertaking given by the appellant or any undertaking incorporated in the order impugned it will be difficult to hold that the appellant willful disobeyed or committed breach of such an undertaking. What the High Court appears to have done is that it took the consent order passed which was agreed to by the parties and by which a receiver was appointed, to include an undertaking given by the contemner to carry out the directions contained in the order. With due respects we are unable to agree with this view taken by the High Court. A few examples would show how unsustainable in law the view taken by the High Court is. Take the instance of a suit where the defendant agrees that a decree for Rs. 10,000/ may be passed against him and the court accordingly passe the decree. The defendant does not pay the decree Can it be said in these circumstances that merely because the defendant has failed to pay the decretal amount he is guilty of contempt of Court ?

The answer must necessarily be in the negative, Take another instance where a compromise is arrived at between the parties and a particular property having been allotted to A, he has to be put in possession thereof by B.B. does not give possession of this property to A. Can it be said that because the compromise decree has not been implemented by he commit the offence of contempt of Court ? Here also the answer must be in the negative, and the remedy of A would be not to pray for drawing up proceedings for contempt of Court against B but to approach the executing Court for directing a warrant of delivery of possession under the provisions of the Code of Civil Procedure. Indeed, if we were to hold that noncompliance of a compromise decree or consent order amounts to contempt of Court, the provisions of the Code of Civil Procedure relating to execution of decree may not be resorted to at all. In fact, the reason why a breach of clear undertaking given to the Courts amounts to contempt of Court is that the contemner by making a false representation to the Court obtains a benefit, for himself and if he fails to honour the undertaking. he plays a serious fraud on the Court itself and thereby obstructs the course of justice and brings into disrepute the judicial institution. The same cannot, however. be said of consent order or a compromise decree where the fraud, if any, is practised by the person concerned not on the Court but on one of the parties. Thus, the offence committed by the person concerned is qua the party not qua the Court, and, therefore. the very foundation for proceeding for contempt of Court is completely absent in such cases. In these circumstances, we are satisfied that unless there is an express undertaking given in writing before the Court by the contemner or incorporated by the Court in its order, there can be no question of wilful disobedience of such an undertaking. In the instant case, we have already held that there is neither any written undertaking filed by the appellant nor was any such undertaking impliedly or expressly incorporated in the order impugned. Thus, there being no undertaking at shall the question of breach of such an undertaking does not arise."

I am, therefore, of the considered view that it is the act of the contemner which in one case results in wilful disobedience of the judgment and in the other wilful breach of the undertaking which can give rise to contempt of Court and not non compliance of a judgment. decree or,order simpliciter. As admittedly no express or implied undertaking was ever given by the respondent for the payment of the back wages. the simple noncompliance with the award by him, would not amount to wilful,disobedience of the award or to contempt of Court. This, petition, therefore, must fail and the rule issued is accordingly discharged.