MCA/152620/2004 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION - FOR CONTEMPT No. 1526 of 2004 In SPECIAL CIVIL APPLICATION No. 17631 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : HONOURABLE MR.JUSTICE DN PATEL : ======================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ======================================================= JYOTI KARMACHARI MANDAL - Applicant(s) Versus RAHULBHAI NANUBHAI AMIN & 2 - Opponent(s) ======================================================= Appearance : MR RD RAVAL for Applicant(s) : 1, MR KAMAL TRIVEDI ADVOCATE GENERAL for Opponent(s) : 1 - 3. ======================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE D.N. PATEL MCA/152620/2004 2/11 JUDGMENT Date : 14/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE D.N. PATEL) 1. The present Civil Application has been preferred for initiating actions under the provisions of Content of Courts Act, 1971 for the alleged breach of an interim order passed in Special Civil Application No.17631 of 2003 dated 27th January, 2004. The directions given in the aforesaid interim order in paragraph no.5 read as under :- “5. In view of the aforesaid, I am inclined to grant the following interim relief: (i) The award, dated 7.11.2003 passed by the industrial tribunal in Ref(IT)No.49/03 is not stayed so far it relates to payment of salary for the period from 14.4.03 to 25.4.03. (ii) However, the said award shall remain stayed so far it relates to payment of arrears of salary to the suspended employees from the date of their suspension till 31.1.2004 with further direction that the petitioner company shall reinstate the all the concerned suspended employees on duty from 1.2.2004 subject to outcome of the departmental proceedings as stated hereinafter or the outcome of this petition, whichever is earlier. (iii) It is further directed that the petitioner company shall pay subsistence allowance from the date of suspension till 31.1.2004 and after payment of subsistence allowance and after reinstatement from1.2.2004, it will be open to the petitioner company to proceed with the departmental proceedings in accordance with law from the stage it was on the date of award, i.e. 7.11.2003 and to pass appropriate orders after following the procedure in accordance with law. It is made clear that the payment of salary for the period from 14/4/03 to 25/4/03 shall be subject to outcome of this petition and shall also be subject to adjustment as may be ordered by the court in case the petitioner succeeds in this petition.” MCA/152620/2004 3/11 JUDGMENT 2. Having heard learned counsel appearing for the respective parties and looking to the facts and circumstances of the present case, it appears that:- (i) During the pendency of Reference (IT) No.25 of 1997 before the Industrial Court, it is alleged by the respondents that an illegal strike was declared from 14th April, 2003 and, therefore, in view of the provisions of the Industrial Disputes Act, 1947, a lockout was declared. There are allegations and counter allegations by the employer and employees. Thereafter, with effect from 26th April, 2003, lockout was brought to an end by the Management. Applications were preferred before the Industrial Tribunal and Reference (IT) No.49/2003 was filed. An award was made on 7th November, 2003 by the Industrial Court and it was held that the employees are entitled to salary for the period running from 14th April, 2003 to 25th April, 2003 and the lockout declared was held as an illegal. It was also mentioned in the paragraph no.45 of the said award dated 7th November, 2003 by MCA/152620/2004 4/11 JUDGMENT the Industrial Tribunal, Vadodara that for the misconduct, an inquiry can be held by the Management and actions can be initiated against the workmen, if misconduct is proved. (ii) Against the aforesaid award dated 7th November, 2003 passed in Reference (IT) No.49/2003, the Management has preferred Special Civil Application No.17631/2003 before this Court, wherein an interim order was passed on 27th January, 2004 and relevant part of the said order of paragraph no.5 is mentioned hereinabove. Thus, reinstatement order was passed by this Court, which was made subject to outcome of the departmental proceedings as per paragraph no.5(ii) of the aforesaid order. (iii) It is vehemently submitted by the learned counsel for the applicants that the applicants have not been reinstated and, therefore, there is contempt of this Court by the respondents. It appears from the various affidavit-in-replies filed by the respondents that the respondents are already paid salary for the period from 14th April, 2003 to 25th MCA/152620/2004 5/11 JUDGMENT April, 2003. It also appears that all the workmen are paid full salary by the Management as if they are on duty for the period running from 1st February, 2004 to 31st January, 2005. Upon conclusion of the inquiry in the month of January, 2005, services of the workmen have been brought to an end. Thus, as per the aforesaid direction especially given in paragraph no.5(ii) of an interim order dated 27th January, 2004 in Special Civil Application No.17631/2003, the employees were treated on duty and paid full salary from 1st February, 2004 till the inquiry is over i.e. upto 31st January, 2005. (iv) Thus, it appears that the grievances ventilated by the applicant that they were not reinstated is not sufficient for initiating actions under the Contempt of Courts Act, 1971 mainly for the reasons that:- (a) The salary has already been paid for the period running from 14th April, 2003 to 25th April, 2003 as per the direction given in paragraph no.5(i) of an interim MCA/152620/2004 6/11 JUDGMENT order dated 27th January, 2004 passed in Special Civil Application No.17631/2003. Thus, there is no breach of this direction. (b) The concerned employees were treated on duty with effect from 1st February, 2004 till 31st January, 2005 and all these employees were paid full salary for these periods. Meanwhile, the departmental proceedings were completed and their services have been brought to an end in the month of January, 2005. Thus, the direction given in paragraph no.5(ii) of an interim order dated 27th January, 2004 in Special Civil Application No.17631/2003 has also been complied with. Basically looking to the labour jurisprudence, whenever there is a termination of services of the employees and when Reference Applications are allowed by the Labour Courts and/or Industrial Courts and when the order of reinstatement is passed, always it will have a retrospective effect, but they MCA/152620/2004 7/11 JUDGMENT cannot be reinstated with retrospective effect in its practical sense and, therefore, always a practical and pragmatic view has been found out by the Courts by awarding back wages. Thus, the backwages are as good as reinstatement under the labour jurisprudence so that the workman can get his livelihood. On the basis of this labour jurisprudence and looking to the facts of the present case and looking to the interim order passed by this Court dated 27th January, 2004 in Special Civil Application No.17631/2003, a direction of reinstatement is given with effect from 1st February, 2004 and was made subject to outcome of the departmental proceedings and, therefore, the management has paid full salary to all the workmen with effect from 1st February, 2004 till 31st January, 2005 i.e. till the departmental inquiry/proceedings were over, there is no willful disobedience of an interim MCA/152620/2004 8/11 JUDGMENT order passed by this Court dated 27th January, 2004 in Special Civil Application No.17631/2003. (c) It also appears from the facts and circumstances of the case that though the services of the workmen have been brought to an end with effect from January, 2005, the workmen have not challenged this termination before the Labour Court and/or Industrial Court. (v) It also appears from the facts of the case that the alleged contempt is of an interim order passed by this Court in writ petition filed by the respondent. Generally, when there is substantial compliance of an interim order, no contempt of Courts action can be initiated for the breach of an interim order. If this Court punishes the respondents and if ultimately their Special Civil Application is allowed by this Court, it will cause irreparable loss to the respondents. To avoid this situation also and looking to the facts as stated hereinabove viz., all the payment of salary for two different periods i.e. for MCA/152620/2004 9/11 JUDGMENT the period running from 14th April, 2003 to 25th April, 2003 and from 1st February, 2004 to 31st January, 2005, by treating the workmen as if they are on duty, is a due compliance of the order passed by this Court. Payment made to the workmen as per the additional affidavit-in-reply filed by the respondent- Company, month wife details from April, 2003 onwards reads as under :- Sr. No. Month Court Order Amount paid on Total Amount (Rs.) 01 April, 2003 (sus.allowan ce) @ 50% 10.08.2003 1,36,511.39 02 May, 2003 @ 50% 16.12.2003 9,33,820.00 03 June, 2003 @ 50% 09.02.2004/ 10.02.2004 8,41,750.00 04 July, 2003 @ 50%/75% 05 August, 2003 @ 75% Order order dated 17.02.2004 amount deposited in Industrial Tribunal 12.03.2004 9,93,650.00 12.03.2004 5,73,114.24 06 August, 2003 to January, 2004 @ 75% 07 Wages for February, 2004 Order dated 27.01.2004 by Hon'ble Mr. Justice Jayant Patel 17.08.2004 to 20.08.2004 66,42,355.76 17.08.2004 to 20.08.2004 13,22,374.72 08 Wages for March, 2004 09.09.2004 13,63,614.00 09 Wages for April, 2004 30.09.2004 12,44,870.00 10 Wages for May, 2004 29.10.2004 14,11,875.00 MCA/152620/2004 10/11 JUDGMENT Sr. No. Month Court Order Amount paid on Total Amount (Rs.) 11 Wages for June, 2004 29.11.2004 14,11,631.00 12 Wages for July, 2004 29.12.2004 14,58,394.00 13 Wages for August, 2004 to January, 2005 including leave pay and LTC 28.01.2005 1,32,49,410.00 Total 3,32,49,410.11 3. As a cumulative effect of the aforesaid facts and reasons, there is no disobedience by the respondents of an interim order passed by this Court dated 27th January, 2004 passed in Special Civil Application No.17631/2003, much less, a willful disobedience. Therefore, there is no substance in the present application. Hence, the present application is dismissed. Rule is discharged. Interim reliefs, if any, stands vacated. (R.P.DHOLAKIA, J.) (D.N. PATEL, J.) /patil FURTHER ORDER Learned counsel for the applicant has submitted that the observations made in the aforesaid judgment MCA/152620/2004 11/11 JUDGMENT may not be come in their way at the time of final hearing of Special Civil Application No.17631/2003 and any other pending proceedings before the various Courts like Industrial Court etc. Looking to the observations made in the aforesaid Judgment, there are meant for the purpose of disposal of this Contempt Application and same will be considered for this application and not for any other purpose and other applications will be decided on their own merits. (R.P.DHOLAKIA, J.) (D.N. PATEL, J.) /patil