Ranjit Kumar Dey vs Siv Sankar Misra

J.N. Sarma, J.—The allegation is that the judgment and order dated 24.6.93 passed by this Court in Civil Rule No. 595/88 was deliberately flouted by the contemner - Shri Siv Sankar Misra, Manager, Nilpur Tea Estate, PO Biswanath Chariali, District Sonitpur, Assam. The relevant portion of that order dated 24.6.93 is as follows:

...the workman will be paid his arrear salary and he will be immediately reinstated in his service with all the backwages and other benefits�.

As against this order there was a Writ Appeal being Writ Appeal No. i 68/93 and that Writ Appeal was dismissed on 29.9.93. The allegation regarding violation of the order of this Court is in para 9 and 10 of this contempt petition. They arc quoted below:

That this Hon''ble Court directed the management to reinstate the Petitioner, In this case, the order of the management passed on 19.4.88 was also considered After considering all facts, this Hon''ble Court directed the writ Petitioner (Nilpur Tea Estate) to reinstate the Petitioner. Even after this order the Manager of the Tes Estate, the contemner No. 1 passed an order on 11.10.93. By this order the Petitioner was informed:

Your service stood terminated with effect from 19th April, 1988 as already notified to you on the said date.

A copy of the order dated 11.10.93 is annexed hereto and marked as Annexure-E.

Para. 10 : That the contemner No. 1 is deliberately disobeying the order passed by this Hon''ble Court. It is apparent on the face of the record. On serveral occasions he has had willfully disobeyed the order passed by this Hon''ble Court. The Labour Court passed an order in favour of the Petitioner. The Management was directed to reinstate the Petitioner with backwages as indicted in that award. The Management preferred a Writ Application, Civil Rule No. 595/88. The prayer for stay of the operation of the impugned award was dismissed. Despite this the Petitioner was not reinstated. The contemner had no regard to the order passed by this Hon''ble Court. The Petitioner''s service was dismissed subject to the result of the Civil Rule No. 595/88 on 19.4.88. Thereafter, the Hon''ble Court passed its judgment on 24.6.93. The Management was directed to reinstate the Petitioner. Inspite of this order, the contemner No. 1 passed an order whereby the Petitioner was informed that his service stood terminated from 19.4.88. This order is in gross violation of the several orders passed by this Court.

The letter dated 11.10.93 by which the order of this Court alleged to be violated is Annexure-E to the application for contempt and that letter is quoted below:

NILPUR TEA ESTATE P.O. Charali -Darrang (Assam) Telegram : "NILPUR" PHONE CHARALI-13

Date : 11.10.93.

To

Shri R.K. Deb,

Proprietor,

M/s. Sri Guru Medical Hall,

Kochgaon, Charali.

Dear Sir,

REF : Your dismissal from service.

Please refer to our letter dated, 19th April, 1988 whereby while implementing the award of the Labour Court in Reference No. 21/84 concerning your dismissal from service, we reinstated you in service offering you to collect your dues from our office. As your reinstatement in Service and our offer was subject to final decision in writ proceedings in Civil Rule No. 595/88 then pending before the Hon''ble High Court and as we while doing so decided hot to take you back on duty and to continue you in service, we determined you employment for reasons stated in the said letter and it appears that not with standining our offer you failed to collect your dues as also act in accordance with our orders determining your services afresh. You did not quit it and vacate the staff quarter in your occupation as was expected of you Subsequently you took interim orders of stay from the Hon''ble High Court whereby you were permitted to occupy the staff quarters during the pendency of proceedings before the Hou''ble High Court.

Now that the Civil Rule No. 595/88 and Writ Appeal No. 168/93 arising therefrom have been finally disposed of as per judgment of the Division Bench dated 29th September, 1993 in the presence of your Advocates upholding the award of the Labour Court your services stood determined with effect from 19th April, 1988 as already notified to you on the said day.

You are now required to quit and vacate the stafff quarter occupied by you forthwith case action according to law would be taken against you holding you a tresspasser since after 29.9.93. You are also given liberty to collect your dues from our office as per directions of the award deeming you in service upto 19.4.88.

Yours faithfully Sd/- Illegible, MANAGER

There was a subsequent development. The subsequent development was that before the Labour Court there was an application u/s 33C(2) of the Industrial Disputes Act, 1947 by the workman. That application was allowed by the Labour Court. As against that there was a writ application being CR No. 535/95 before this Court. That was dismissed in limine by a Single Judge of this Court. As against that there was a Writ Appeal being Writ Appeal No. 76/95 before a Division Bench of this Court. Before the Division Bench certain arguments were made that the award dated 19.4.88, the validity of which was upheld in the earlier Civil Rule No. 595/88 has been wiped out and that aspect to the matter was considered by the Division Bench and I quote paras 2, 3, 4 and 5 of the judgment of the Division Bench to appreciate the contention and the grounds on which they were rejected by the Division Bench:

Para. 2 : Heard Mr. Khetri, learned Counsel for the Appellant Tea Company, who has raised the following points-that the learned Single Judge acted without jurisdiction in unduly burdening the Appellant with implementation of the award, which had already been implemented by reinstating the Respondent No. 3, and a fresh order of termination from service was contained in the same letter passed against him same day i.e. on 19.4.88 stating that the management had lost confidence in the workman Respondent No. 3.

It was contended that the workman having not challenged the termination order as contained in the letter dated 19.4.88, he was not entitled to any back wages after this date, i.e. 19.4.88. It may be noted that the Appellant had challenged the award dated 11.12.87 passed by the Labour Court, in Civil Rule No. 595/88 which was dismissed by judgment dated 24.6.93 and the workman, Respondent No. 3 was directed to be reinstated in service with all back wages and other benefits. Again an appeal was preferred by the management being Writ Appeal No. 168/93 which was dismissed by a Division Bench of this Court on 29.9.93.

Para. 3 : Mr. Khetri argued that Civil Rule 595/88 was limited in its scope, the validity of the award was in question and was confirmed only to the question of reinstatement. He propounded a novel theory by arguing that so long as the fresh termination order dated 19.4.88 was not challenged in separate proceedings by the workman, he could not claim any back wages after 19.4.88.

Para. 4 : If such an argument is accepted, it would virtually nullify the writ issued by this Court. Look at the travesty of the workman, who is ordered to be reinstated and in the breath terminated from service, as if it is all a paper relief, then it is expected of him to challenge the termination order issued afresh, thus dragging him once again to the court of law. A writ issued by a court has to be complied with in its true letter and spirit. When reinstatement is ordered it is not as if that the order of reinstatement is to be passed and by the same order the next moment the workman is to be dismissed or removed from service. The employer cannot be allowed to indulge in such tactics and take a plea that the writ was complied with, inasmuch as, a reinstatement order was issued. It is not reinstatement if service of the workman is terminated by the same order of reinstatement. It is neither reinstatement nor compliance of the writ.

Para. 5 : A mere reading of the judgment dated 24.6.93 would go to show that the workman Respondent No. 3 was directed to be reinstated in service with all back wages and other benefits. In face of this direction, it cannot be contended that the 1 workman Respondent was not entitled to other benefits after 19.4.88. Advancing such an argument is nothing but a short of making mockery of the writ issued by this Court. When reinstatement with consequential or ancillary benefit is ordered, normally in cases of unjustified termination of service, an workman is entitled to the relief of reinstatement with full backwages, and the continuity of service is implicit therein. In fact as has been pointed by the Supreme Court in Principal, Rajni Parekh Arts, K.B. Commerce and B.C.J. Science College, Khambhat and Another Vs. Mahendra Ambalal Shah, non-compliance with court''s order for reinstatement with backwages would expose the employer to contempt proceedings. Striking out an order of termination of service of an workman must ordinarily lead to the reinstatement with backwages, it is only in exceptional circumstances which make it impossible or wholly inequitable, vis-a-vis, the employer to grant such a relief. What the Appellant has done, in the instant case is, by the, same stroke of pen, while issuing a reinstatement order, the services of the workman Respondent No. 3 has been terminated and the plea is advanced that having terminated the services, the workman is not entitled to any further benefit on and from 19.4.88 Such contentions run counter to the writs issued and the sprit of law.

In this contempt petition notice was issued on 28.11.94 and thereafter an affidavit-in-opposition was filed and the contempt proceedings was initiated on 24.5.95. Accordingly this mailer is being hoard today.

I have heard Mr. A. Dasgupta, learned Counsel for the Petitioner, though strictly under the law he has no right to be heard, yet I have heard him just for the purpose of assistance of the court. Also heard Mr. T.C. Khetri, learned Counsel for the contemner.

In the affidavit-in-opposition filed on behalf of the contemner, it is stated; that as the Petitioner was reinstated in service, the order passed by this Court was complied with and the management on the same date by the same order terminated; the service of the Petitioner and the management has such a right. In the whole affidavit nowhere there is even a single line seeking apology, rather the contemner has tried to justify his action. So, we are only concerned with the justification put forward by the contemner. Mr. Khetri raises three preliminary objections regarding; the maintainability of this contempt petition - (1) that this contempt petition is barred by Section 20 of the Contempt of Court''s Act, 1971 inasmuch as u/s 20 of the aforeasaid Act, the period is one year from the date of the alleged contempt. Be that as it may, this Court can exercise the power under Article 215 of the Constitution, and if this power is exercised under Article 215 of the Constitution, the question of limitation is absolutely irrelevant inasmuch as there is no limitation to exercise the power under Article 215 of the Constitution of India.

The next preliminary objection raised by Mr. Khetri is that there alternative remedy u/s 33C(2) of the Industrial Disputes Act, 1947: the contempt cannot be remedy, This argument is to be mentioned only to be rejected inasmuch what the Petitioner did in this case is that he brought all the facts to the notice of the court that the order of this Court has been violated and/or the said order has not been complied with and the court, in view of that matter, can take action and proceed with the matter, if otherwise, it is established.

The third objection raised by Mr. Khetri is that regarding bona fide in implementing the order under the so called legal advise received by the contemner. That aspect to the matter shall be dealth with later on. On the materials placed before me I find dm the contemner did not comply with the order passed by this Courts the contemner wilfully violated it by by resorting to some actions which cannot deemed to be valid and legal in the eye of law. These were nasty and (sic) actions to violate the orders of the Court and to lower the authority of the court.

In Principal, Rajni Parekh Arts, K.B. Commerce and B.C.J. Science College, Khambhat and Another Vs. Mahendra Ambalal Shah, the facts were that an employee of the college was asked to be reinstated on his termination by the University, then by the Vice-Chancellor and finally High Court also directed the Board of Trustees of the College to reinstate him and pay back wages. The Principal and Secretary of the Board of Trustees of the College did not reinstate the person nor paid him back wages in the facts and circumstances of that case it was held that, it will amount to contempt. In that case even at the stage of hearing an apology was tendered by the contemner, but the Supreme Court pointed out that belated apology cannot be accepted and such belated apology is not an apology in the eye of law. But during pendency of the contempt proceedings before the Supreme Court, the person was reinstated and back wages amounting to Rs. 3,399. 40 was paid and taking into consideration of that aspect to the matter an amount of Rs. 3000/- was imposed as fine by way of costs against the contemner. Major Genl. B.M. Bhattacharjee (Retd.) and another Vs. Russel Estaqte Corporation and another, That was a case where the Supreme Court passed an interim order pending disposal of the SLP restraining the Respondents from alloting any further flat of the building in dispute from the date of the order. But in spite of that order, the Respondents gave delivery of possession of some flats to 3rd party, and executed the registered sale deed in their favour on basis that agreement of sale were already executed in their favour prior to passing of interim order. The Supreme Court further held that the same amounted to gross contempt of court, as they tried to violate the order of the court taking clue that the possession was delivered in respect of the flats for which agreement was made prior to the passing of the order. The Supreme Court pointed that it was the duty of the contemner to come and seek Clarification with regard to the order and it was not proper on the part of the Respondents to violate the order passed resorting to some technicalities and the Supreme Court found the contemner to be guilty and sentenced him to one month imprisonment in addition to fine of Rs. 2000/-. Pritam Pal Vs. High Court of Madhya Pradesh, Jabalpur through Registrar, There the Supreme Court pointed out that the Supreme Court and High 1 Courts have inherent power to deal with their own contempt. Power is not restricted by any ordinary legislation including Contempt of Courts Act and Code of Criminal Procedure. The procedure in exercise of this power being summary in nature, it should be fair and that the contemner should be made aware of the charge against him and given a reasonable opportunity to defend himself. The High Court can deal with it summarily and adopt its own procedure. Paras 15, 24, 30, 41 and 42 have been summarised in the Head Note and that is quoted below:

The power conferred upon the Supreme Court arid the High Court, being Courts of Record under Articles 129 arid 215 of the Constitution respectively to an inherent power under which it can deal with contempt of itself. The jurisdiction vested is a special one not derived from any other; statute but dervied only from Articles 129 and 215. Therefore, the constitutionally vested right cannot be either (sic) abrogated or cut down by any legislation including the contempt of courts Act Therefore, the submission of the contemner that the impugned order is vitiated on the ground of procedural irregularities and that Article 215 is to be read in conjunction with the provisions of Sections 15 and 17 of the Act of 1971, cannot be countenanced. Nor can they be controlled or limited by any statute or by any statute or by any provision of the Code of Criminal Procedure or any Rules. The caution that has to be observed in exercising this inherent power by summary procedure is that the power should be used sparingly, that the procedure to be followed should be fair and that the contemner should be made aware of the charge against him and given a reasonable opportunity to defend himself.

The Supreme Court further pointed cut in that decision that the maxim is that "the welfare of the people is the supreme law". The Supreme Court also pointed out that this can be achieved only when justice is administered lawfully, judicially, without fear or favour and without being hampered and Unvaried, and this cannot be effective unless respect for it is fostered and maintained. If an order of the court is allowed to be scrap of paper and it is allowed to be violated or flouted by resorting to some dubious means the Court must not sit as a silent spectator and it should exercise its power so that proper respect is given to the order of the court. But that, is lacking in this particular case. In this particular case it is found that the contemner has tried to justify his action, though in the earlier Writ Appeal No. 76/95 it was specifically pointed out to him that by his conduct be has exposed himself to contempt proceedings. Inspite of the caution which was given to him by the Division Bench of this Court, the contemner did not pay any heed to it. State of Jammu & Kashmir Vs. Mohd. Yaqoob Khan and Others, That was a case for non-compliance of the interim order of the High court. The writ petition filed by present Respondent before the Supreme Court for implementation of decree against the present Appellant state, an ex-parte interim order was passed by the High Court for issuance of the notice to Appellant, listing of the case for hearing and meanwhile delivering half quantity of timber to Respondent on furnishing bond Appellant not taking immediate steps for complying with the direction for delivering limber as the stay matter was fixed for hearing and as there was no time indicate in the order for compliance, Respondent without waiting for the next date of hearin filed contempt application against Appellant, High Court passed order for compliance with its direction and thereafter an application for contempt was filed. In the facts and circumstances of that case, the Supreme Court came to the finding that no contempt was committed as the order itself was a vague one.

Mr. T.C. Khetri in this connection places the following decisions:

1) 1995 (1) GLJ 148 Amal Kmar Purkayastha v. Smti Chenu Prabha Choudhury Barman where in para 5 a Division Bench of the court has pointed on as follows:

Civil Contempt'' under the Contempt of Courts Act, 1971 means wilful disobedience of any judgment, decree, direction, order, writ or other process of a Civil or wilful breach of undertaking given to a court. In order to bring within the ambit of civil contempt it has to be proved that there has been a disobedience of an order passed by a court and this disobedience is wilful. The word ''Wilful'' has the same meaning in law of contempt as in other branches of law. The disobedience of orders of court in order to constitute punishable contempt must be wilful. Mere unintentional disobedience to a judgment or order or process of a court may amount to contempt in theory only, but it will not render the Respondent liable to punishment. The knowledge of an order of a court and deliberate disregard of it are essential to constitute a contempt. Mere inaction on the part of the Government officer to take any action as directed by the court may not always amount to contempt of court. If, however, the conduct of a particular Government servant whose duty is to give effect to the order passed by the court shows that he has wilfully and deliberately refrained from complying with the order of the court may amount to contempt. Therefore, in order to constitute a contempt it must be specifically proved from the records that, the officer whose duty is to comply with the direction has wilfully and negligently disobeyed the order. Ordinarily, in the case of civil contempt, the courts are always reluctant to interfere unless the disobedience to the Court''s order issued for the benefit of a third party is wilful. The violation of order and wilfulness in that violation - both must be proved to punish a person for contempt.

There is no quarrel with this proposition of law, but in the instant case as indicated above it is found that the contemner has wilfully and deliberately disobeyed the order of this Court. I find that the contemner has wilfully violated the order of the court. So, this case does not help the contemner.

Mr. Khetri submits that in view of Section 19(5) of the Industrial Disputes Act once it is given effect to, there is no continuing obligation under the award. In this connection he relies on the following decision; Indian Aluminium Co. Ltd. Vs. Aluminium Factory Workers'' Union, Alwaye, Alwaye whore the Kerala High Court has pointed out as follows:

Nothing contained in Sub-section (3) shall apply to any award which by its nature, terms or other circumstance does not impose, after it has been given effect to, any continuing obligation on the parties bound by the awards" - deals with awards which settle questions once for all Haidar deals with the sub-section as follows:

All awards need not have periods of operation. Tills depends upon the nature of facts and circumstances of the case. Thus awards deciding questions of personal rights, e.g. victimisation or questions like lockout or strike pay, reinstatement etc. must be regarded as awards having decided questions once for all and hence necessarily there is no question of any period of operation of such awards. (Evolution of Labour-Management Relations and the Indian Law of Industrial Disputes p. 208).

There is no contention before us that this sub-section is attracted and so it is not necessary to evalute the reaction of that provision to the facts of this case. M. Velayudhan and Others Vs. State of Kerala and Others, where the Kerala High Court in para 6 of the judgment pointed out as follows:

It is contended on behalf of the Petitioner that u/s 19(3) of the Industrial Disputes Act, the award continues to be in force only for a period of one year from the date on which it becomes enforceable u/s 17(1) and that the proceedings taken after the expiry of the said term are therefore without jurisdiction. Section 19(3) provides as follows:

19(3) An award shall, subject to the provisions of this section, remain in operation for a period of one year from the date of which the award becomes enforceable u/s 17A:

Provided that the appropriate Government may reduce the said period and fix such period as it thinks fit:

Provided further that the appropriate Government may, before the expiry of the said period, extend the period of operation by any period not exceeding one year at a time as it thinks fit so however, that the total period of operation of any award does not exceed three years from the date on which it came into operation.

This has to be read along with Section 19(5) which is in the following terms:

19(5) Nothing contained in Sub-section (3) shall apply to any award which by its nature, terms or other circumstances does not impose, after it has been given effect to, any continuing obligation on the parties bound by the award.

The claim how sought to be enforced is not in the nature of a continuing obligation on the parties to the award and the fact that the claim awarded is in respect of an antecedent period takes it out of the operation of Section 19(3). Coz and Kings (Agents) Ltd., New Delhi Vs. Their Workmen and Others, where in para 6 the Delhi High Court pointed out as follows:

...Sub-section (5) has to be read with Sub-section (3) and so read, it becomes clear that these two provisions apply only to an award which, after pronouncement and publication, continues to impose: obligation on the parties making it necessary to know for what period it would be in operation under Sub-section (3). Where an award made in 1971 was not such an award, it did not have to be terminated by any notice under Sub-section (6), A subsequent award made in 1975 was, therefore, not vitiated by being delivered during the currency of the previous award.

These, three cases do not help the. contemner.

This matter relates to civil contempt and civil contempt consists basically on failure of a person to comply with an order of the court. Rules of civil contempt are concerned to uphold the effective administration of justice. If the orders of the court arc not enforced, the order of the court shall be mere a scrap of paper. As pointed out long back by a Chief Justice of the States Lord Chief Justice Mekean" the question seems to resolve into this, whether a person shall bend to the law or the law shall bend to the person, it is the duty of the court to determine that the former shall be the case". The rational of both criminal and civil contempt is essentially same, upholding the effective administration of justice. If a court lacked the means to enforce its orders and if the orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute. The famous English saying is" There is no greater crime than contempt and Disobedience, for all persons within the Realm ought to be obedient to the King and within his Peace."

The argument of Mr. Khetri is that by virtue of Section 19(5) of the Industrial Disputes Act, the validity of the award has come to an end, cannot be acceded inasmuch as Mr. Khetri failed to note that there are two types of awards. The awards of the first type are which decide the questions under reference once and for all. For instance, the awards involving personal rights e.g. upholding the discharge or dismissal or workmen or directing reinstatement of a discharged or a dismissed workman for victimisation or any other unfair labour practice; or the awards dealing with questions like transfer, legality or justifiability of lock-outs or strikes etc. In such cases, the question of the period of operation of the award as contemplated by Sub-section (3) does not arise as the dispute under reference is decided once for all by the award of the adjudicator. Such awards do not cast any continuing obligation on the parties bound by the award. The awards of the second type are those which cast continuing obligations on the parties bound by them. For instance the awards dealing with the wage structure dearness allowance, gratuity and other allowances and benefits etc, Sub-section (5) makes Sub-section (3) applicable to the awards of this type. From of combined reading of Sub-sections (3) and (5), it is clear that these two provisions apply only to an award which, after pronouncement and publication, continues to impose obligations on the parties making It necessary to know for what period it would be in operation under Sub-section (3) (d). This will show that the period of operation shall apply not to this type of award. The award in the instant case has assumed finality and it will be always binding on them, the question of period is absolutely immaterial as argued by Mr. Khetri. This argument of Mr. Khetri is absolutely misconceived and only a subterfuge adopted by the contemner to violate/defy the order of this Court.

Accordingly I find that the contemner - Siv Sankar Misra is guilty for violating/flouting the order passed by this Court deliberately and wilfully .

The next question which arises is that what should be the sentence lor the contemner. Justice should be justice tempered with mercy. Here I find that the contemner deliberately and wilfully violated the order passed by this Court. But he has taken his defence that he has done it under the legal advice, which is no defence, further the legal advice as contended was not produced before the Court. Be that as it may, I sentence the contemner to undergo simple imprisonment for a period of 1 (one) month and a fine of Rs. 5000-, in default, simple imprisonment for 15 (fifteen) days. The Registrar (Judicial) shall issue warrant as required under Rule 20 of the Contempt of Courts Act (G.H.C.) Rules, 1977 for the arrest and detention of the contemner.