1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CONTEMPT PETITION NO.65 OF 2008 IN ARBITRATION PETITION NO.708 OF 2004 United Workers Association .. Petitioner Versus Air India Ltd. and Anr. .. Respondents Mr.Joy Deb Saha for petitioner Mr.S.K.Talsania, Senior Advocate with S.K.Chari i/b. M.V.Kini & Co. for respondents. CORAM : S.C.DHARMADHIKARI, J. DATE : 3rd March 2009. P.C. . Heard Mr.Saha, the Representative of petitioner appearing in person and Mr.Talsania, learned Senior Counsel appearing for Respondents. 2. Perused the contempt petition and the annexures thereto so also reply affidavit and the affidavit filed by the petitioner on the earlier occasion. The representative of the petitioner 2 has given an application to the court wherein he prays that the respondent be called upon to produce the following documents:- "(a) Original dispatch book and or outward inward Register of the respondent company showing the reference Nos. and or outward Nos. of the said letters in the said Register or Book; (b) Original postal receipt showing that the said letters were mailed and or dispatched upon the workman concerned; (c) Original Acknowledgement card and or receipt showing that the workman concerned has duly received the said letters." 2. The request is that until these documents are produced for perusal of this Court, the 3 petition may not be taken up for admission. However, in the view that I have taken, it is not necessary to adjourn the matter. Hence, adjournment refused. 3. This is a contempt petition alleging wilful and deliberate disobedience of an order and direction of this Court dated 14th August 2007 in Notice of Motion No.3295 of 2004. 4. A copy of this order is annexed to the petition paper book. The order passed by the Division Bench of this Court is on a notice of motion in the appeal. The appeal is by one Jagdish Gursahani who is sought to be represented by the petitioner Association. However, before the division bench, Jagdish Gursahani appeared in person. The respondent is the employer Air India Ltd. 5. The party in person took out a notice of 4 motion for direction to respondent to make payment of legal dues and also to pay salary from time to time. 6. The Division Bench heard both sides and passed the following order:- "2. So far as the payment of salary is concerned, the appellant has already been dismissed from service. As he is not in service, he is not entitled to any salary and therefore, no direction for payment of salary can be given. So far the direction claimed that the appellant should be paid legal dues is concerned, the learned Counsel appearing for respondent states that to whatever payment the appellant may be entitled on the footing that he has been dismissed, from the service will be paid to him in accordance with law, within a period of 5 eight weeks from today. The statement is accepted. Notice of motion disposed of." 7. A perusal of this order and direction would indicate that the Division Bench did not grant the relief insofar as the payment of salary as it is noticed that the concerned employee/ party in person was dismissed from service. However, with regard to payment of his legal dues, the Division Bench recorded a statement of respondent that the legal dues computed on the basis that the employee was dismissed from service be paid to him in accordance with law within a period of eight weeks from the date of the order. 8. The contempt alleged is that this order was passed on 14th August 2007. It was passed in presence of parties. Time of eight weeks was granted to comply with the same. On 24th October 2007, the appellant/ employee addressed a 6 detailed letter inviting attention of the respondents to this order and direction and called upon the respondents to comply with the same. This communication, a copy of which is annexed to contempt petition paperbook at pages 78 to 81, contains the request to the respondent that even if the respondents are disinclined to pay him any sum, they should communicate the reasons therefor by supporting documents. 9. The respondents had computed his dues as is apparent from the documents, copies of which are annexed from pages 83 to 96 of the contempt petition paperbook. There is correspondence prior to the order of Division Bench also. 10. After the order of the Division Bench which was passed on 14th August 2007, the letter dated 23rd October 2007 has been despatched. 11. The grievance of the petitioner is that 7 the order was not complied with. It is only when the petitioner took up the matter that the respondent wrote a letter dated 6th June 2008 purporting to be a reminder and stated therein that by a letter dated 28th September 2007, respondents had informed the employee that final statement of P.F.and Gratuity dues is ready and he should come and collect the cheques for the amount as computed. 12. The reminder, copy of which is annexed at page 122 reads thus:- "Please refer our earlier letter dated 28/9/2007 (copy enclosed) dispatched on the above address informing you about the Final Settlement of your PF and Gratuity dues and our subsequent telephonic conversation on the subject. "We once again would like to convey to 8 you that, your both the cheques are ready and request you to collect the same at an early date." 13. It is the grievance of Mr.Saha, representative of the said employee that the letter referred to in this communication (dated 28th September 2007) was never despatched, leave alone, received by the concerned employee. The Court must call upon the respondents to produce the proof of its despatch and receipt. He submits that this is nothing but an attempt, some how or the other, to show that there is no deliberate or wilful violation of the order passed by the Court. He states that the communication for the first time is of June 2008, i.e. much after the period prescribed in Division Bench order. There is no explanation as to why within the period stipulated by the Division Bench and even thereafter the respondent did not make any attempt to comply with this 9 order. In such circumstances, unless and until the proof of the above nature is produced, this Court should not rely upon the communication dated 28th September 2007. The affidavit filed in reply to this petition also relies upon the same. This is clear case of deliberate and wilful violation of the order passed by this Court and, therefore, contempt petition deserves to be admitted. 14. On the other hand Mr.Talsania invited my attention to the letter dated 6th June 2008 and contended that this refers to the earlier communication of 28th September 2007. However, the letter does not merely rest at the same. It refers to subsequent telephonic conversation on the subject of gratuity and P.F.dues payment. All through out the amount was computed and cheques were kept ready. The practice followed is to call upon the concerned employee to collect the cheques. That is how the cheques were kept 10 ready and the employee was called upon to collect them. The letter was addressed and merely because there is no reference number to the same, does not mean that the letter had never been despatched or not received as alleged. He submits that the same contentions are reiterated in the affidavit in reply. Merely because the copy of this letter is not forwarded independently or that the amount as computed was not paid by forwarding cheques/ draft to the employee or a request was not made to deposit the same in Court does not mean that the order has been wilfully and deliberately violated. At the most, this is a case where the order was complied with but believing that the bonafides can be established by referring to the settled practice in the respondent’s establishment, that attempts to seek any extension or clarification of the order have not been made. The entire conduct is thus bonafide and if at all there is some error or delay on the part of respondent, this is not a 11 fit case for proceeding in contempt. More so, when the amount is now deposited in this Court. 15. Having perused this petition and the reply thereto, in my view, it is not necessary to proceed in contempt against the respondents. Firstly, the request of the employee to produce the proof of despatch and receipt of letter dated 28th September 2007 is something which cannot be entertained for the first time in these proceedings. He states that he has not received this communication and, therefore, there is a clear violation and breach as no payment was made within the time stipulated in Division Bench order. However, in the peculiar facts of this case that alone is not enough to conclude that the violation or breach is wilful and deliberate. The communication of 6th June 2008 which is relied upon is something which not only refers to the earlier letter but telephonic conversation. It is only that the amount was not forwarded but 12 the employee was called upon by the respondents, personally to collect the dues does not mean that straight away a conclusion can be drawn that violation, if any, is deliberate and wilful. In these proceedings, the issue of calculation or computation of legal dues cannot be gone into. That is something which is beyond the scope of present proceedings. The only thing that has to be decided is whether the order of this Court is deliberately and wilfully violated. In this context reference can be made to the reply affidavit in this petition. The deponent of this affidavit is Senior Manager (Administration), of respondent. He has filed an affidavit and in para 4 of the same he states thus:- "4. I respectfully say and submit that in compliance to the said order, the respondents immediately vide their letter dated 28.9.2007, called upon the petitioner to collect the final 13 settlement of provident fund and gratuity dues. But, however, for the reasons best known to the petitioner, the petitioner intentionally failed and neglected to collect the said cheques. I further say and submit that the respondents are thereafter continuously following up with the petitioner and innumerable telephone calls are made, as can be seen from the 1st respondent’s subsequent letter dated 6/6/2008. I say and submit that inspite of repeated follow up by the respondents, the petitioner failed and neglected to collect his dues from the respondents and instead rushed to this Court with the present contempt proceedings as an arm twisting tactics to cause loss and prejudice to the respondents. I respectfully say and submit that the respondents are always ready and willing to settle the dues of the petitioner, 14 but, however, for the reasons best known to the petitioner, the petitioner failed and neglected to accept the dues. I say and submit that the petitioner has duly received the said letters dated 28.9.2007 and 6.6.2008 and even admitted the receipt of the said letters and inspite of telephone calls, the petitioner failed and neglected to accept the dues." 16. From a perusal of this para and subsequent statements, it is apparent to me that it is not as if there was no attempt made to comply with the order. All through out the stand of respondent is that they were ready and willing to pay the amount on the basis that the employee has been dismissed from service. That is according to respondent, the amount payable, if at all. The main proceedings are pending. In such circumstances what appears to me from the record is that the employee concerned is not 15 satisfied with the computation and calculation and insisted upon a particular amount be paid over to him and if at all respondents are not agreeable to accept his calculations, then communicate the reasons therefor. If such is his stand, then, it is not open for him to invoke contempt jurisdiction of this Court. More so, when no deliberate act or wilful disobedience is brought to my notice. If at all there is a delay in complying with the order, which delay has been explained, it does not appear to me an intentional act. The respondent proceeded on the basis of some practice established for years together. The practice is not disputed. There is no denial of the telephone calls made by the respondents. They could have complied with the order by forwarding the cheques straight away or if the employee concerned was not accepting it, by seeking a clarification from this Court and depositing the amount in Court. However, merely because such an attempt is not made is not enough 16 to conclude that there is deliberate and wilful disobedience of the order and direction of this Court. For these reasons, no action in contempt can be initiated. Once I am satisfied that this is not a case for civil contempt, then, this petition must be dismissed. It is accordingly dismissed, but leaving open all issues and pleas on merits. It is not as if the Court has accepted the correctness of the calculations and computation made by the respondent. All pleas of the employee concerned in that behalf are kept open for being raised in appropriate proceedings at an appropriate stage. Liberty is however granted to the employee to withdraw the sum deposited in the Court by respondent, without prejudice to the rights and contentions of both sides in the main matter. 17. Since I have held that this is not a case for civil attempt, it is not necessary to call for the documents sought by the petitioner and 17 the application made in that behalf is rejected. More so, when I have relied upon the other material to conclude that no case for civil contempt has been made out. Petition dismissed. (S.C.Dharmadhikari, J)