: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION CONTEMPT PETITION (L) NO.41 OF 2007 CONTEMPT PETITION (L) NO.41 OF 2007 CONTEMPT PETITION (L) NO.41 OF 2007 IN IN IN WRIT PETITION (L) NO.901 OF 2007 WRIT PETITION (L) NO.901 OF 2007 WRIT PETITION (L) NO.901 OF 2007 Municipal Corporation of Greater Bombay .. Petitioner. Versus 1. BEST Kamgar Karmachari Kruti Samiti & Ors. .. Respondents. Mr.Srihari G.Aney, Senior Counsel with Mr.A.B. Ketkar and Mr.D.G.Dramure i/b.M.V.Kini & Co. for petitioner. Mr.C.U.Singh, Senior Counsel with Ms.Sneha Yadav i/b. Ms.Neeta P.Karnik for respondent Nos.2,5 and 6. Mr.Susheel Mahadeshwar i/b.Ms.Ranjana Todankar for respondent Nos.4,9 and 10. CORAL : S.C.DHARMADHIKARI, J. CORAL : S.C.DHARMADHIKARI, J. CORAL : S.C.DHARMADHIKARI, J. DATE : 11th September, 2007. DATE : 11th September, 2007. DATE : 11th September, 2007. P.C.: P.C.: P.C.: 1. This Contempt Petition prays that the respondent Nos.5 to 10 or such of them as are found to have violated the order passed by this Court in the above writ petition be dealt with under the Contempt of Courts Act, 1971 for "civil contempt". 2. The contempt petition is filed alleging that this Court on 18th April, 2007, passed an order which directs respondents to the writ petition, their agents, servants, office bearers and members from resorting to any violent demonstrations or from going on illegal strike or illegal : 2 : stoppage of work, pending the hearing and final disposal of the complaint which is filed by the petitioner in the Industrial Court. 3. This Court clarified that it will be open for the respondents to give appropriate notice and thereafter take action in accordance with law. 4. The facts have been elaborately noted in the order of the learned Single Judge. 5. The writ petition was filed by the petitioner before me, challenging an order of the Industrial Court in Complaint (ULP) No.119 of 2007. That complaint was filed by the present petitioner under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ("MRTU" and "PULP" Act for short), alleging unfair labour practices under Items 1,2,3 and 5 of Schedule III of the said Act. In this complaint, an application for interim relief was filed by the B.E.S.T. (petitioner before me) for obtaining relief of injunction, prohibiting the opponents to the complaint from resorting to an illegal strike/stoppage of work etc. This application was rejected by the Industrial Court on 22nd March, 2007. Aggrieved by the said order, the B.E.S.T. approached this Court under Article 226 of the : 3 : Constitution of India by the above writ petition. 6. It is not necessary to refer to the further facts as I am not concerned with the merits of the controversy. However, it is not disputed that the Trade Unions which are respondents in this contempt petition are parties to the writ petition filed in this Court. 7. Suffice it to state that the learned Single Judge heard the BEST’s Counsel and also considered his contention that there is a genuine apprehension that the Undertaking so also public at large would suffer adversely if the respondents resorted to an illegal strike inspite of the prohibitory order which is passed by the Government under the Maharashtra Essential Service Maintenance Act, 2005. The petitioner submitted before the Court that if the respondents resorted to an illegal strike, transport facilities which are available to the people, residing in Mumbai City and suburbs would be affected. There would be total chaos and in such circumstances when the Union is pressurizing the Management to accept their demands, the injunction as prayed for should be granted. On the other hand, the Union’s submission was that the entire petition is based on newspaper reports and there is no genuine apprehension of the nature expressed before the Court, so also noted by the learned Single Judge. : 4 : 8. The learned Single Judge in paragraphs 12,13 and 14 has noted and extensively reproduced the observations from the judgements relied upon and ultimately held that the interest of the public at large also need to be taken into consideration. The petitioner is a public Undertaking and there are public funds which are involved. The Undertakings are set up for subserving public interest. In these circumstances and also observing that the employees of the Undertaking have statutory right to go on strike but after following the due procedure laid down therein, the subject injunction order was passed. 9. The petitioners have stated in the petition that contrary to the order of this Court and in utter breach and violation thereof, the office bearers of the Unions called for an illegal strike. They declared abruptly stoppage of work for 72 hours. This caused hardship to about 4.5 million commuters, who are travelling by B.E.S.T. buses everyday. The order of the learned Single Judge was passed in their presence. There is no question of the order not taking into consideration a case of stoppage of work inasmuch as the injunction is very widely worded. In such circumstances, the plain duty of the Union members and the concerned employees was to move this Court and seek appropriate modification of the order or : 5 : challenge the same in such proceedings as are permissible in law. Annexed to the petition are the newspaper cuttings which would reveal the extent of the stoppage of work and inconvenience to the commuters. In the submission of the petitioners, a clear case of civil contempt is thus made out. 10. Mr.Aney, learned Senior Counsel, appearing for the petitioner submits that the case of the respondents is not that they had complied with law. In other words, stoppage of work was not in accordance with law. There was no notice of the proposed action. It was abrupt and sudden. This is not a case of a legal strike. In any event, the question is of public interest. Once the injunction is granted in widest terms so as to subserve public interest, then, this is not a case where the Court is concerned with the legality of the action at this stage. He submits that there is a duty in law, so also by the order of this Court not to resort to strike. The view taken by the Hon’ble Supreme Court in the context of services rendered by public Undertakings which have been established and are funded out of public funds is that the approach has to be distinct from that of an ordinary employer and employee dispute or relationship. There is a public duty insofar as the employees working in public Undertakings are concerned. They cannot resort to any illegal action or : 6 : strike. He submits that assuming that the order is permitting a legal strike, yet, that part of the order where it restrains an illegal strike or illegal stoppage of work has been clearly violated by the subject action. Mr.Aney submits that the entire approach of the respondents has shown that they are not repenting for what they have done but are justifying their acts by contending that the illegal stoppage is by the Action Committee and its member employees and not the Unions individually. There is no question of any apology being, therefore tendered. The submission of Mr.Aney is that even if there is an apology which has been tendered, considering the stand taken, the same should be rejected. He submits that the judgement of this Court should be read as a whole and once it is read in its entirety, it is clear that the restraint is not only on illegal strike but on stoppage of work without due process of law. In such circumstances, the contempt proceedings are maintainable and, therefore, the Court should take appropriate action. 11. Mr.Singh,learned Senior Counsel, appearing for respondent No.2, on the other hand, submits that the contempt petition is misconceived and totally non-maintainable. He submits that the main complaint is still pending. The order passed by this Court is interlocutory in nature. He submits that the contempt : 7 : petition does not states as to in what capacity the respondent Nos.2 and 5 to 10 are guilty of civil contempt. It is not a case where the order is violated by these Unions. On the face of the record, it is apparent that the petitioner has been misleading the Court. The impugned violation is by the Action Committee. The petitioner is aware of the existence of such Action Committee. The Action Committee is a party to the original proceeding. It knows the office bearers of such Action Committee. It knows the registered office of the Action Committee. In such circumstances, by not proceeding against the Action Committee but alleging civil contempt on the part of the Unions is impermissible and must not be countenanced. He submits that in the affidavit in reply, it is clearly stated that the Unions have no concern with this Action Committee. The Unions are not members of the respondent No.1 Action Committee. He submits that one of the Unions has as its President/main office bearer, the Chairman of the B.E.S.T. Committee. He is thus concerned with the affairs of the Undertaking. He has been proceeded against by the petitioner/Undertaking. However, it is not clear that under what circumstances, he is proceeded against. Mr.Singh was at pains to point out that the entire petition is directed against a particular Union and its office bearers. The Union has clarified the entire : 8 : position inasmuch as it has very clearly stated that it is not associated with the action of 18th April, 2007. 12. Mr.Singh has also relied upon the communication which is annexed at Annexure-A to the affidavit of the respondent No.2. He has also placed reliance upon Section 24 and Section 25(5) of the "MRTU" and "PULP" Act, 1971. He submits that no finding is rendered that the strike is illegal. On the other hand, the main complaint, claiming the declaration is pending. There is no final finding of fact that the action of 18th April, 2007 amounts to an illegal strike or illegal stoppage of work. That is a finding which must be rendered in the light of the material placed before the Industrial Court. He submits that it would be hazardous and risky at this stage to go into the rival contentions in great details and come to any conclusion. 13. Mr.Singh’s contentions have been adopted by Mr.Mahadeshwar, who is appearing for respondent Nos.4 to 9 and 10. 14. Thus, the respondents contend that no civil contempt has been committed and, therefore, the contempt petition be dismissed. : 9 : 15. In AIR 2001 S.C. 1293 (Mrityunjoy Das v/s.Sayed AIR 2001 S.C. 1293 (Mrityunjoy Das v/s.Sayed AIR 2001 S.C. 1293 (Mrityunjoy Das v/s.Sayed Hasibur Rahaman), Hasibur Rahaman), Hasibur Rahaman), the Hon’ble Supreme Court has spelt out the purpose of contempt jurisdiction. In paragraphs 13 to 17, the Hon’ble Supreme Court observes thus :- "13. Before however, proceeding with the matter any further, be it noted that exercise of powers under the Contempt of Courts Act shall have to be rather cautious and use of it rather sparingly after addressing itself to the true effect of the contemptuous conduct. The Court must otherwise come to a conclusion that the conduct complained of tentamounts to obstruction of justice which if allowed, would even permeate in our society vide Murray and Co. v. Ashok Kr.Newatia (2000) 2 SCC 367 : (2000 AIR SCW 389 : AIR 2000 SC 833 : 2000 Cri.LJ 1394), this is a special jurisdiction conferred on to the law Courts to punish an offender for his contemptuous conduct or obstruction to the majesty of law. It is in this context that the observations of this Court in Murray’s case (supra) in which one of us (Banerjee,J.) was party need to be noticed (Para 10 of AIR): "The purpose of contempt jurisdiction is to uphold : 10 : the majesty and dignity of the Courts of law since the image of such a majesty in the minds of the people cannot be led to be distorted. The respect and authority commanded by Courts of Law are the greatest guarantee to an ordinary citizen and the entire democratic fabric of the society will crumble down if the respect for the judiciary is undermined. It is true that the judiciary will be judged by the people for what the judiciary does, but in the event of any indulgence which even can remotely be termed to affect the majesty of law, the society is bound to lose confidence and faith in the judiciary and the law Courts thus, would forfeit the trust and confidence of the people in general." 14. The other aspect of the matter ought also to be noticed at this juncture viz. the burden and standard of proof. The common English phrase "he who asserts must prove" has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the standard of proof, be it noted that a proceeding under the extraordinary jurisdiction of the Court in terms of the provisions of the Contempt of Court Act is quasi : 11 : criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond reasonable doubt. The observations of Lord Denning in Re Bramblevale, (1969) 3 ALL ER 1062,lend support to the aforesaid. Lord Denning in Re Bramblevale stated :- "A contempt of Court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond all reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence.... Where there are two equally consistent possibilities open to the Court, it is not right to hold that the offence is proved beyond reasonable doubt." 15. In this context, the observations of the Calcutta High Court in Archana Guha v/s. Ranjit Guha Neogi, (1989) 2 Cal HN 252 : (1990 Cri.LJ : 12 : 2012) in which one of us was a party (Banerjee, J.) seem to be rather, opposite and we do lend credence to the same and thus record our concurrence therewith. 16. In Aligarh Municipal Board v/s. Ekka Tonga Mazdoor Union, (1970) 3 SCC 98 : (AIR 1970 SC 1767 : 1970 Cri.LJ 1520), this Court in no uncertain term stated that in order to bring home a charge of contempt of Court for disobeying orders of Courts, those who assert that the alleged contemnors had knowledge of the order must prove this fact beyond reasonable doubt. This Court went on to observe that in case of doubt, the benefit ought to go to the person charged. 17. In a similar vein in V.G.Nigam v/s. Kedar Nath Gupta, (1992) 4 SCC 697 : (1992 AIR SCW 2529 : AIR 1992 SC 2153 : 1992 Cri.LJ 3576), this Court stated that it would be rather hazardous to impose sentence for contempt on the authorities in exercise of contempt jurisdiction on mere probabilities." 16. It is also very clear from the Law laid down by the Hon’ble Supreme Court time and again that if the order : 13 : of which violation is alleged is capable of more than one interpretation or an occasion arises so as to find out its true import and purport, then, the contempt proceedings must be dropped. In other words, the order has to be clear and unambiguous so also the allegations and averments of breach and violation. 17. The averments must show a deliberate violation of the order so as to bring it within the definition of "civil contempt". The persons guilty of the same must be impleaded and proceeded against keeping in mind this aspect. The observations of the Hon’ble Supreme Court in the case of Murray & Co. v/s. Ashok Kumar Newatia & Anr. Murray & Co. v/s. Ashok Kumar Newatia & Anr. Murray & Co. v/s. Ashok Kumar Newatia & Anr. reported in AIR 2000 SC 833 reported in AIR 2000 SC 833 reported in AIR 2000 SC 833 are opposite and relevant. In paragraph 19, the Court observes thus :- "19 ..... As noted above, hyper-sensitiveness on the part of the law Courts, if it does not obstruct or impede the course of justice, as such cannot be appreciated. This is a special jurisdiction conferred on to the law courts to punish an offender for his contemptuous conduct or obstruction to majesty of law. Needless to record that to violate the order of the court or to obstruct or tend to obstruct is a quasi criminal offence as such the courts, in the matter of award : 14 : of punishment ought to be rather cautions in its approach even if the court is otherwise satisfied as to act or conduct of the party. The approach of the Court is thus different in the matter of imposition of punishment against a contemnor the same being totally dependent on to the facts and circumstances of each individual case. No generalised guidelines can be had nor a set of general principles in the matter of award of punishment can be formulated. The Court must otherwise come to a conclusion that on facts that the act tantamounts to obstruction of justice which, if allowed would even permeate into our society - it is only then that this power ought to be exercised...." 18. In the facts and circumstances of the present case and having perused the entire order with the assistance of the learned Senior Counsel appearing for both sides, I am of the view that what the learned Single Judge has restrained the Unions from going on an illegal strike or resorting to an illegal stoppage of work. It is nobody’s case before me that the Unions have resorted to any violent demonstrations. Therefore, that part of the order of the learned Single Judge has not been complained of being violated. Therefore, whether the action of the : 15 : parties to the contempt proceedings amounts to an illegal stoppage of work or is in the nature of an illegal strike, is something that cannot be decided within this limited jurisdiction. It is not possible for me to take into account mere oral pleas in my limited jurisdiction. This is not a case where the pleas, raised in the contempt petition have not been controverted at all. On the other hand, the respondents have clearly stated that no violation or breach is committed of the order passed by this Court. It is not possible for me in the present facts and circumstances and more so, when the complaint is pending, to go into merits of the controversy. Therefore, I must consider the rival contentions in this contempt petition in the light of the order passed by this Court. If they are considered in that light, it is not possible to conclude that the action of the employees amounts to an illegal stoppage of work or an illegal strike straightaway. 19. That is best left to the Industrial Court. It would be for the Industrial Court to go into the rival contentions after it records oral evidence. It can also permit the parties to tender documents. After all this material is placed, the rival pleas can be gone into details as the Industrial Court derives its jurisdiction from the substantive and procedural provisions in the : 16 : relevant statute. In such circumstances, I am of the view that the contempt petition is not the remedy for the petitioner to obtain any declaration with regard to the legality or validity of the action of the employees; at this stage. 20. Apart from the above and assuming that it was permissible for this Court to go deeper into the matter, yet, I agree with the submission of Mr.Singh that the allegations in the contempt petition are absolutely unclear and vague and do not precisely pin-point the breach and violation. It is not clear why the members of the Action Committee, despite being identified, are not made parties to the contempt petition. More so, when the Action Committee is party to the original/writ proceedings. In this behalf, if the affidavit filed on behalf of the 2nd respondent is perused, it has been specifically contended therein that the 2nd respondent, its office bearers and members did not resort to an illegal strike. It is submitted by the 2nd respondent that the action of 18th April, 2007 was pursuant to a Meeting, convened by respondent No.1 B.E.S.T. Kamgar Karmachari Kruti Samiti. By a letter dated 17th April, 2007, the Samiti was invited and called upon respondent No.2 and its officer bearers to attend the said Meeting. Respondent No.2 and its office bearers were requested to : 17 : apprise the employees about the latest position regarding the negotiations between the employer and the employees. A copy of the letter dated 17th April, 2007 is annexed to the affidavit of respondent No.2. The pamphlets and banners of the Meeting dated 18th April, 2007 which are produced by the petitioner on affidavit in writ petition, according to the 2nd respondent, make it abundantly clear that not only the respondent No.2’s office bearers but the office bearers of other Union as well as the Chief Executive Officer of the petitioner Mr.Uttam Khobragade had been invited by the Kruti Samiti for the said Meeting. The 2nd respondent’s affidavit proceeds on the basis that the employees were in a conciliatory mood and had indeed requested the Management to continue the negotiations. In any event, it is stated on oath by the 2nd respondent that whatever happened on the relevant date was an action of the employees on the command and direction of the Kruti Samiti. This factual position is undisputed because the petitioner has also not denied the same. It is in such circumstances and by placing reliance upon a Circular dated 20th April, 2007 that the 2nd respondent prays that the contempt petition cannot lie in the face of the factual position. In the submission of the 2nd respondent, none of the respondents to the contempt petition, barring the office bearers of the Kruti Samiti, could be proceeded at all for the impugned action. : 18 : 21. The contempt petition does not state that the respondent No.2 and the other Unions have violated or breached the order of this Hon’ble Court, it alleges that the employees resorted to an illegal action/strike. In any event, respondent No.2 has stated that the entire petition, alleging contempt, is based upon nothing but Media reports. The same are also exaggerated Insofar as the affidavit which has been filed by the 2nd respondent on 25th July, 2007, is concerned, apart from tendering unconditional apology for the contempt, if any, the 2nd respondent states that he has not personally indulged in any act which can be termed as instigating their employees to agitate or stop work illegally. There is, thus, no willful, much less deliberate violation of the order passed by this Court. 22. I have also perused the annexures to the affidavits referred by me above. To me, it is clear that the petitioner is aware of the existence of the Samiti. It has impleaded the Samiti as respondent No.1. In such circumstances, by not proceeding against the Samiti and its office bearers but only alleging contempt on the part of the Unions which are functional within the Undertaking, the contempt petition cannot succeed. Sufficient doubt has been