AI Structured Summary
Not yet generated for this judgment
Judgment
M.N. Chandurkar, J.—These proceedings for contempt of Court arise out of the report made by the Industrial Court, Nagpur to the effect that the opponent employer has committed contempt and the proceedings for contempt of Court should be initiated against him u/s 48 (6) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the Act).
The facts found by the Industrial Court are not in dispute. An award was made by the Labour Court requiring the employee Wazirkhan to be reinstated by the employer without payment of back wages. The employee tried his best to report for duty with the employer but according to him he was prevented from resuming his work. Treating the conduct of the employer as amounting to non-implementation of the award of the Labour Court, the employee filed a complaint before the Industrial Court as contemplated by section 28(1) of the Act. Section 28(1) reads as follows:
"28(1) Where any person has engaged in or is engaging in any unfair labour practice, then any union or any employee or any employer or any Investigating Officer may, within ninety days of the occurrence of such unfair labour practice, file a complaint before the Court competent to deal with such complaint either u/s 5, or as the case may be, u/s 7, of this Act:
Provided that, the Court may entertain a complaint after the period of ninety days from the date of the alleged occurrence, if good and sufficient reasons are shown by the complainant for the late filing of the complaint."
Under Schedule IV which gives a list of general unfair labour practices on the part of the employers, one of the unfair labour practices is "Failure to-implement award, settlement or agreement" at entry No. 9. When a complaint u/s 28 (1) was made to the Industrial Court, the Industrial Court made an interim order u/s 30 (2) of the Act directing the employer to reinstate the employee in services forth-with pending the final decision of the complaint on merits. This order was made on 8-9-1977. Now, according to the employee, he had reported for duty at the shop on 9-9-1977, he tried to present his joining report to the management, but the employer who is the proprietor of the firm, declined to accept the joining report and refused permission to him to resume his duties. The employee, therefore, complained to the Industrial Court that the employer had deliberately flouted the interim order passed by the Court and has thus committed contempt of the Court and therefore, appropriate action should be taken against him.
The defence of the employer was that on 9-9-1977, the employee had come to the shop; he had a talk with the Manager and he was asked to sit in the office, but after some time he left the office informing the Manager that he would turn up a little later, but as a matter of fact he never came back. The employer denied that there was any deliberate attempt on his part to disobey the interim order.
The Industrial Court found as a fact that the Manager himself was present when the interim order was passed and the Court, therefore, declined to accept the version of the Manager that he has not discussed with the proprietor till the date of giving evidence as to whether employee should be permitted to resume duties or not. The Industrial Court declined to accept the explanation of the employer that the employee had left the shop abruptly.
Thus the Industrial Court found that the employer had deliberately and wantonly disobeyed the interim order passed by the Court and there was no justification for the Manager to deny reinstatement to the employee. The learned Judge of the Industrial Court then observed as follows:
"The whole background of the case would go to demonstrate that the non-applicant has adopted a recalcitrant attitude and has been putting off on flimsy pretexts the reinstatement of the applicant, as per the award of the Labour Court and interim order passed by this Court. Prima facie I find that the non-applicant has committed contempt of this Court and, therefore, under sub-section (6) of section 48 of the Act, it is necessary to make report to the Hon''ble High Court for initiating contempt of Court proceedings against the non-applicant. It pains me to observe that the non-applicant has shown scant regard for the orders of the Court and the stand taken by the non-applicant is to say the least deplorable and indefensible."
In the course of argument Mr. Sagdeo who appeared on behalf of the employer, wanted to challenge the finding reached by the Industrial Court that the employee was denied reinstatement. He wanted to canvass that the version of the employer that the employee had left the premises on his own and never turned up, should have been accepted. We do not consider it necessary to go into the correctness or otherwise of the explanation, because on a perusal of the relevant provisions of the Act, it appears to us that the report made by the Industrial Court does not make out a case of contempt as contemplated by the provision of the Act. It is necessary, therefore, to refer to the relevant provisions of the Act relying on which action for contempt of Court was sought to be taken by the employee against the employer. We must first refer to the provisions in section 30, Sub-section (2) which empowers the Industrial and Labour Courts to make such interim orders as are deemed just and proper by that Court. Sub-section (1) of section 30 deals with powers of Industrial and Labour Court while dealing with a complaint in respect of unfair labour practices. Subsection (2) of section 30 reads as below;
"30(2) In any proceeding before it under this Act, the Court may pass such interim order (including any temporary relief or restraining order) as it deems just and proper (including directions to the person to withdraw temporarily the practice complained of, which is an issue in such proceeding), pending final decision:
Provided that, the Court may, on an application in that behalf, review any interim order passed by it."
Admittedly the order directing the employer to reinstate the employee forthwith pending the decision of his complaint that non-implementation of the award which directed the employer to reinstate the employee, amounted to an unfair labour practice was made under, section 30 (2) of the Act. The other relevant provision is to be found in section 48. Marginal heading of section 48 which consists of 8 sub-sections is "Contempts of Industrial or Labour Courts." Section 48 of the Act reads as below:
"48(1) Any person who fails to comply with any order of the Court under clause (b) of sub-section (I) or sub-section (2) of section 30 of this Act shall, on conviction, be punished with imprisonment which may extend to three months or with fine which may extend to five thousand rupees.
(2) If any person:
(a) when ordered by the Industrial Court or a Labour Court to produce or deliver up any document or to furnish information being legally bound so to do, intentionally omits to do so; or
(b) when required by the Industrial Court or a Labour Court to bind himself by an oath or affirmation to state the truth refuses to do so;
(c) being legally bound to state the truth on any subject to the Industrial Court or a Labour Court refuses to answer any question demanded of him touching such subject by such Court or;
(d) intentionally offers any insult or causes any interruption to the Industrial Court or a Labour Court at any stage of its judicial proceeding, he shall, on conviction, be punished with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both.
(3) If any person refuses to sign any statement made by him, when required to do so by the Industrial Court or a Labour Court, he shall, on conviction, be punished with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both.
(4) If any offence under sub-section (2) or (3) is committed in the view or presence of the Industrial Court or as the case may be, a Labour Court, such Court may, after recording the facts constituting the offence and the statement of the accused as provided in the Code of Criminal Procedure, 1898, forward the case to a Magistrate having jurisdiction to try the same, and may require security to be given for the appearance of the accused person before such Magistrate or, if sufficient security is not given, shall forward such person in custody to such Magistrate. The Magistrate to whom any case is so forwarded shall, proceed to hear the complaint against the accused person in the manner provided in the said Code of Criminal Procedure.
(5) If any person commits any act or publishes any writing which is calculated to improperly influence the Industrial Court, or a Labour Court or to bring such Court or a member or a Judge thereof into disrepute or contempt or to lower its or his authority, or to interfere with the lawful process of any such Court, such person shall be deemed to be guilty of contempt of such Court.
(6) In the case of contempt of itself, the Industrial Court shall record the facts constituting such contempt, and make a report in that behalf to the High Court.
(7) In the case of contempt of a Labour Court, such Court shall record the facts constituting such contempt, and make a report in that behalf to the Industrial Court; and thereupon, the Industrial Court may, if it considers it expedient to do so, forward the report to the High Court.
(8) When any intimation or report in respect of any contempt is received by the High Court under sub-section (6) or (7), the High Court shall deal with such contempt as if it were contempt of itself, and shall have and exercise in respect of it the same jurisdiction, powers and authority in accordance with the same procedure and practice as it has and exercises in respect of contempt of itself."
The provision in sub-section ( 1 ) of section 48 provides for a penalty for a person who fails to comply with any order of the Court u/s 30 (1) (b) or section 30 (2) and such a person on conviction is liable to be punished with imprisonment which may extend to three months or with fine which may extend to five thousand rupees. Sub-sections (2) and (3) of section 48 create offences in respect of certain acts or omissions as provided in those sub-sections. Sub-section (4) enables the Industrial Court or the Labour Court in a case where an offence under sub-section ( 2 ) or (3) is committed in the view or presence of such Court to forward the case to a Magistrate having jurisdiction to try the same after recording the facts constituting the offence as also the statement of the accused as provided in the Code of Criminal Procedure. The Magistrate to whom the case is forwarded is then directed to proceed to hear the complaint against the accused persons in the manner provided in the Code of Criminal Procedure, Sub-sections (1) to (4) of section 48 thus deal with certain offences. While a specific provision is made in sub-section ( 4 ) with regard to the offences contemplated by sub-sections (2) and (3) and in a given case the Court itself is empowered to forward the papers to the Magistrate, the offence created by sub-section (1) of section 48 is expressly made cognizable u/s 55. Indeed section 55 is a specific provision made only in respect of offence u/s 48 (1). Section 55 reads as follows:
"55. The offence under sub-section ( 1 ) of section 48, shall be cognizable."
The scheme of the first four sub-sections of section 48, therefore, clearly is that certain offences are created and penalty is provided for those offences. Though the section is marginally headed "Contempt of Industrial or Labour Courts'', the contents of section 48 are not restricted merely to matters relating to contempt. Actually so far as contempt is concerned, the provisions are to be found only in the latter part of section 48 i. e. sub-sections (5) to (8). It is well known that the marginal heading of a section cannot control the construction of a section though it may be used as a guide to find out what the section was intended to deal with. Though the marginal heading of section does not make any reference either to penalty or offences the provisions in section 48 ( 1 ) to ( 4 ) in fact deal only with certain offences and punishment therefore and only sub-sections (5) to (8) make provision relating to contempt. Unless, therefore, it is possible to find that the sweep of sub-sections (5) to (8) of section 48 was intended to take in non-compliance or disobedience or an interim order made u/s 30 (2) such disobedience or non-compliance could not be dealt with as amounting to contempt of the Industrial Court. Sub-section 48 is only a deeming provision which provides that if certain acts are committed by a person, such person "shall be deemed to be guilty of contempt of such Court." In other words but for the provision in sub-section (5) the conduct of a person referred to therein would not otherwise have amounted to contempt of Court. Sub-section ( 5 ) shows that before a person can be deemed to be guilty of contempt of Court that person must either commit any act or publish any writing which is calculated to improperly influence the Industrial Court, or a Labour Court, or it must be calculated to bring such Court or a member or a Judge thereof into disrepute or contempt, or it must be calculated to lower his authorities or to interfere with the lawful process of any such Court. These are the only acts and such is the only conduct which fictionally has been made punishable as if it amounted to contempt of Court. The Industrial Court under sub-section (6) of section 48 is required to record the facts constituting such contempt if it feels that contempt of itself has been committed and the Industrial Court has to make a report in that behalf to the High Court. The Labour Court itself has not been given any independent power to deal with its contempt. If the Labour Court takes the view that its contempt has been committed, then the facts constituting such contempt have to be recorded and a report has to be made to the Industrial Court. Even the Industrial Court has not been given power to deal with such contempt. But under sub-section (7) of section 48, discretion is given to it to forward the report to the High Court, if the Industrial Court considers it expedient to do so. Sub-section (8) then deals with jurisdiction of the High Court in a case where report is received either from the Industrial Court in respect of contempt of itself or from the Industrial Court in respect of contempt of the Labour Court and the High Court is empowered to deal with such contempt as if it were contempt of itself, and it is provided that the High Court shall have and exercise in respect of it the same jurisdiction, powers and authority in accordance with the same procedure and practice as it has and exercises in respect of contempt of itself. When the High Court deals with its own contempt, the High Court has to follow the provisions of Contempt of Courts Act, where a clear-cut distinction is drawn between a civil contempt and criminal contempt have been defined in section 2 (b) and (c) as follows :
''''2(b) "Civil contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court;
(c) "Criminal contempt" means the publication (whether by words, spoken or written or by signs, or by viable representations, or otherwise) of any matter or the doing of any other act whatsoever which :
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any Court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct the administration of justice in any other manner;"
Thus a wilful disobedience to an order or direction of the Court constitutes civil contempt under the Contempt of Courts Act. Now it is important to note that sub-section ( 5 ) of section 48 does not seem to contemplate the concept of civil contempt and the acts or conduct referred to in sub-section (5) clearly fall within the category of criminal contempt. Disobedience of an order of a Court which amounts to civil contempt is not in terms referred to in sub-section (5), and in our view for good reasons. It must be pointed out that provisions relating to punishment for contempt of Court are clearly in the nature of penal provisions and such provisions will, therefore, have to be strictly construed, especially when punishment for contempt of Court has been provided by the Legislature by making a deeming provision. Therefore, unless we are satisfied that the act or omission or conduct in respect of which action for contempt of Court is sought under the provision of the Act i. e. section 48, squarely falls within the four corners of sub-section ( 5 ) of section 48, it will not be possible to hold that any act, omission or conduct amounts to contempt of Court. The reason why disobedience of an older is not fictionally made contempt of Court appears to us to be that penalty has already been provided for such disobedience. Any attempt to stretch the wordings of section 48 (5) to include disobedience of an order like the one in the instant case, would be defeating the scheme of section 48. We have earlier pointed out that disobedience of an order u/s 30 sub-section (2) is expressly made an offence, indeed a cognizable offence, for which penalty has been provided in the form of imprisonment which may extend to three months or with fine which may extend to five thousand rupees. The provision relating to trial of offences under the Act are made under Chapter VIII where power has been given to Labour Court u/s 38 to try offences punishable under the Act. It is difficult to contemplate that having provided for a penalty on conviction for disobedience of an order u/s 30 ( 2 ), the Legislature would again contemplate punishment for the same act by way of action for contempt of Court. Normally, such an intention should not be inferred unless there are express words to that effect. It is obvious from the report of the Industrial Court that the conduct on the basis of which the Industrial Court was inclined to take the view that prima facie the employee is guilty of contempt of Court, was his disobedience of the interim order. We are not required in these proceedings, having regard to the view which we have taken, to go into the question as to whether the disobedience was wilful or not and whether disobedience of such an order in the instant case would amount to an offence u/s 48 (1) or not. But it appears to be clear to us that the provisions of section 48 (5) must clearly exclude from its purview, the orders contemplated by section 48 (1) in respect of which a specific penalty has been provided in the form of conviction and sentence or fine. The report made by the learned Industrial Court, no doubt refers to section 48 (6). But it is not possible for us to read into the report, a finding that any act or conduct as contemplated by sub-section (5) was, according to the Industrial Court, committed by the employer. In view of the restricted scope of sub-section ( 5 ) of section 48, which as we have already pointed out, must exclude the disobedience of order u/s 30 (2) in respect of which a prosecution is contemplated by section 48 (1); it is not possible for us to hold that the employer was guilty of contempt of Court as contemplated by section 48 (5) of the Act.
We are, therefore, unable to accept the report made by the Industrial Court and in our view, no action against the employer can be taken, having regard to the express provision in section 48 (5). The papers may, therefore, be filed.