)) IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION No 2371 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE K.R.VYAS and Hon'ble MR.JUSTICE C.K.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- MULJIBHAI BHURABHAI Versus UPENDRA VYAS - MANAGER -------------------------------------------------------------- Appearance: Mr.Mukul Sinha withMr. Subramaniam Iyer for Petitioner Mr.V.B.Patel withMr.Deepak V Patel for Respdt.No. 1 Mr.K.K.Shah, Mr.N.R.Shahani, Mr.P.H.Pathak, Mr. P.C.Master, Mr.D.S.Vasavda and Mrs.S.N. Pahva, as Interveners. -------------------------------------------------------------- CORAM : MR.JUSTICE K.R.VYAS and MR.JUSTICE C.K.BUCH Date of decision:10/8/2000 CAV JUDGEMENT (Per: K.R.Vyas,J.) 1. The applicant- workman has made a grievance in this application that even though the Industrial Court has passed an award dated 13th September 1999 in Appeal (IC) No. 43 of 1995, in his favour, he is neither reinstated nor paid back wages and, therefore, the respondents be held guilty of having committed wilful contempt of the Court and to punish the respondents as per the provisions of Contempt of Courts Act. 2. This is one of many such matters whereby the concerned workman, instead of executing the award under section 33(C) of the Industrial Disputes Act, has filed application under section 10 of the Contempt of Courts Act, 1971. This Court entertains such applications in view of different set of decisions in the matter. The questions involved in these applications are : (i) Whether the Labour Court is a Court within the meaning of Contempt of Courts Act ? (ii) Whether the contempt proceedings are maintainable when adequate remedy under section 33-C of the Industrial Disputes Act is available ? With a view to decide these questions finally, we sought assistance of all advocates by issuing a notice. In response to the same, the learned advocates appeared as interveners and submitted their view points by inviting our attention to relevant case laws on both the questions. 3. Mr.V.B.Patel, learned Counsel, after having invited our attention to the provisions of constitution as well as Industrial Disputes Act, submitted that even though the Labour Court/ Industrial Tribunal exercises powers to adjudicate rights of the parties, they are not "Courts". In other words, Mr. Patel submitted that the labour courts/industrial tribunals are not 'courts' even though they have trappings of the courts. In the submission of Mr. Patel, they are exercising purely quasi judicial powers under the supervision of the High Court and,therefore,mere supervision by the High Court under Article 227 of the Constitution is not a real test so as to make them "Courts" within the meaning of section 10 of the Contempt of Courts Act. Mr. Patel finally submitted that in view of the decision of the Supreme Court in the case of (The) Alahar Cooperative Credit Service Society Vs. Shamlal, 1995(2) GLH 550 wherein the Supreme Court, in no uncertain terms, has held that the Labour Court constituted under section 7 of the Industrial Disputes Act is not 'a court subordinate to High Court' under section 10 of the Contempt of Courts Act and, therefore, the contempt proceedings for non compliance of the order or award are not maintainable, the point is concluded and, therefore, the present application is required to be rejected. 4. Mr.K.K.Shah, learned Counsel, as one of the interveners, submitted that the phrase 'subordinate to it' as appearing in section 10 of the Contempt of Courts Act is wide enough to include all courts which are judicially subordinate to High Court even though administrative control over them under Article 235 of the Constitution does not vests in the High Court and under Article 227 of the Constitution, High Court has the power of superintendence over all courts and tribunals through out the territories in relation to which it exercises jurisdiction. Mr. Shah, by inviting our attention to the decision of the Supreme Court in the case of State of Maharashtra Vs. Labour Laws Practitioners Association, AIR 1998 SC 1233, submitted that since the Labour Court judges and the judges of the Industrial Tribunal belong to judicial service, the hierarchy contemplated in the case of labour court judges is the hierarchy of labour court judges and industrial tribunal judges with the industrial tribunal judges holding superior position of district judges, the labour court is held subject to High Court's power of superintendence under Article 227 of the Constitution, it is not correct to contend that the labour court is not a 'court'. 5. Mr.Sinha,learned Counsel for the applicant- workman contended that in view of section 119 B of the Bombay Industrial Relations Act, whereby the labour court/ industrial court can make a reference regarding their contempt to the High Court,they are necessarily 'courts' and, therefore, no other view except to hold the labour court/ industrial court as 'courts' is possible. 6. The Full Bench of this Court in the case Shaikh Mohammedbhikhan Hussain Vs. Manager, Chandrabhanu Cinema, 27 (1) GLR 1, has held that the industrial tribunal under the Industrial Disputes Act is a 'court' within the meaning of section 2 read with section 10 of the Contempt of Courts Act. The Supreme Court in Alahar's case (supra) has held that the labour court is not a 'court subordinate to High Court'within the meaning of section 2 read with section 10 of the Contempt of Courts Act. In view of this, the Division Bench of this Court,in the case of Girishchandra R.Bhatt Vs. Dineshbhai N.Sanghvi, 1996(1)GLH 523, ruled that in view of the judgment of the Supreme Court in Alahar's case (supra), the judgment of the Full Bench of this Court in Mommadbhikan's case (supra) has not remained a good law in view of Article 141 of the Constitution. 7. Section 10 of the Contempt of Courts Act deals with the powers of the High Court to punish for the contempt of subordinate courts. Therefore, the question arises as to whether the labour court is a 'court' and then whether it is a 'subordinate court'. The Supreme Court, in the case of Brajnandan Sinha Vs. Jyoti Narain, AIR 1956 SC 66 has held that the word 'court' is not defined in the Contempt of Courts Act and the expression 'Courts subordinate to the High Courts' in section 3(1) would prima facie mean the Courts of law subordinate to the High Courts in hierarchy of Courts established for the purpose of administration of justice throughout the Union. The definition of 'Court' in section 3 of the Evidence Act is not exhaustive but framed only for the purpose of that Act and is not to be extended where such an extension is not warranted. It was further observed that the definitions of the words 'Judge' and 'Court of Justice' in Ss.19 and 20 of the Penal Code indicate that the pronouncement of a definitive judgment is considered the essential 'sine qua non' of a Court and unless and until a binding and authoritative judgment can be pronounced by a person or body of persons, it cannot be predicated that he or they constitute a Court. Supreme Court, after considering the judgment rendered in the case of Bharat Bank Ltd. Vs. Employees of Bharat Bank Ltd., AIR 1950 SC 188, Muqboolhussein Vs. State of Maharashtra, AIR 1953 SC 325 and Cooper Vs. Wilson, AIR 1937-2 KB 309, held that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement. In the case of Thakur Jugal Kishore Sinha Vs. The Sitamarhi Central Cooperative Bank Ltd., AIR 1967 SC 1494, a question arose before the Supreme Court as to whether the Assistant Registrar discharging the functions of a Registrar under section 48 read with section 6(2) of Bihar and Orissa Cooperative Societies Act, is a 'Court'. Supreme Court, after comparing the powers given to the Registrar under the Act with the Code of Civil Procedure, found that the Registrar is given the same powers as are given to ordinary Civil Courts by the Code of Civil Procedure including the power to summon and examine witnesses on oath, the power to order inspection of documents, to hear the parties after framing issues, to review his own order and even exercise the inherent jurisdiction of Courts mentioned in S.151 of the Code of Civil Procedure. Supreme Court observed that " in adjudicating upon a dispute referred under S. 48 of the Act, the Registrar is to all intents and purposes, a Court discharging the same functions and duties in the same manner as a Court of law is expected to do. Therefore, an Assistant Registrar discharging the function of Registrar under S.48 read with S. 6(2) of Bihar and Orissa Cooperative Societies Act, is a Court". Supreme Court further observed that : "Article 228 does not indicate that unless a High Court can withdraw a case to itself from another Court for disposing of a substantial question of law as to the interpretation of the Constitution, the latter Court is not subordinate to the High Court. This Article is only intended to confer jurisdiction and power on the High Court to withdraw a case for the purpose mentioned above from the ordinary Courts of law whose decision may, in the normal course of things, be taken up to the High Court by way of an appeal. Article 227 is of wider ambit; it does not limit the jurisdiction of the High Court to the hierarchy of Courts functioning directly under it under the Civil Procedure Code and Criminal Procedure Code but it gives the High Court power to correct errors of various kinds of all Courts and tribunals in appropriate cases. Needless to add that errors as to the interpretation of the Constitution is not out of the purview of Art. 227 although the High Court could not, under the powers conferred by this Article, withdraw a case to itself from a tribunal and dispose of the same, or determine merely the question of law as to the interpretation of the Constitution arising before the tribunal. The subordination for the purpose of S. 3 of the Contempt of Courts Act means judicial subordination and not subordination under the hierarchy of Courts under the Civil Procedure Code or the Criminal Procedure Code." In the case of Board of Revenue, UP Vs. Vinay Chandra Misra, AIR 1981 SC 723, the Apex Court held that the "phrase 'courts subordinate to it' as used in S. 10 is wide enough to include all courts which are judicially subordinate to the High Court, even though administrative control over them under Art.235 of the Constitution does not vest in the High Court. Under Art. 227 of the Constitution, the High Court has the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. The Court of Revenue Board,therefore, is a court 'subordinate to the High Court' within the contemplation of S. 10 of the Act." In the aforesaid case, the Supreme Court was required to decide the question,namely whether the High Court can take suo motu cognizance of contempt of its subordinate courts/ inferior courts when it is not moved in either of the two modes mentioned in section 15(2) of the Act. The Supreme Court was of the view that the High Court, under Article 227 of the Constitution has the power of superintendence over all the courts/ tribunals throughout the territories in relation to which it exercises jurisdiction and, therefore, the Board of Revenue is a 'court subordinate to the High Court'. Since the Supreme Court in the case of Brajnandan (supra) and Jugal Kishore (supra) has laid down the test to constitute a court, in light of the observations made therein and no reference is made to those tests in Vinaychandra's case (supra), we have to consider whether the labour court/industrial tribunal is a 'Court'in light of the tests laid down by Supreme Court in above referred cases. 8. Section 7 of the Industrial Disputes Act authorises the appropriate Government by notification in the Official Gazette,to constitute one or more Labour Courts for the adjudication of industrial disputes relating to any matter specified in the Second Schedule and for performing such other functions as may be assigned to them under the Act. Similar power is given to appropriate Government under section 7-A to constitute Industrial Tribunals for the adjudication of industrial disputes relating to any matter, whether specified in the Second Schedule or the Third Schedule and for performing such other functions as may be assigned to them under the Act. Likewise, under section 7-B, the Central Government may constitute National Industrial Tribunals. Under section 10,it is an obligation on the part of the appropriate Government to make a reference if in its opinion any industrial dispute exists or is apprehended. Section 11 mainly deals with the procedure and powers of the conciliation officers, Boards, Courts and Tribunals. Subsection (3) of section 11 provides that every Board, Court, (Labour Court, Tribunal and National Tribunal) shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit, in respect of the following matters, namely-- (a) enforcing the attendance of any person and examining him on oath; (b) compelling the production of documents and material objects; (c) issuing commissions for the examination of witnesses; (d) in respect of such other matters as may be prescribed; and every inquiry or investigation by a Board, Court (Labour Court, Tribunal or National Tribunal), shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860). Subsection (4) of section 11 provides that a conciliation officer (may enforce the attendance of any person for the purpose of examination of such person or call for) and inspect any document which he has ground for considering to be relevant to the industrial dispute (or to be necessary for the purpose of verifying the implementation of any award or carrying out any other duty imposed on him under the Act, and for the aforesaid purposes, the conciliation officer shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) ( in respect of enforcing the attendance of any person and examining him or of compelling the production of documents). Subsection (5) of section 11 provides that a Court, Labour Court, Tribunal or National Tribunal may, if it so thinks fit, appoint one or more persons having special knowledge of the matter under consideration as assessor or assessors to advise it in the proceeding before it. Subsection (6) of section 11 provides that all conciliation officers, members of a Board or Court and the presiding officers of a Labour Court, Tribunal or National Tribunal shall be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code (45 of 1860). Subsection (7) of section 11 prescribes powers of Labour Court, Tribunal or National Tribunal as the case may be, to determine the amount of costs and to give necessary directions accordingly to be recovered as arrears of land revenue and finally, the subsection (8) of section 11 provides that every (Labour Court, Tribunal or National Tribunal) shall be deemed to be Civil Court for the purposes of [Sections 345, 346 and 348 of the Code of Criminal Procedure. Reading the aforesaid provisions, it is clear that the Labour Court or Tribunal, though having trappings of Civil Court, are not exercising all the powers which are vested in the Civil Court under the Code of Civil Procedure Code. On the contrary, under subsection (3) of section 11, powers are restricted in the sense that it will have same powers like Civil Court in respect of enforcing the attendance of any person and examining him on oath, compelling production of documents and material objects, issuing commission for examination of witnesses and in respect of such other matters as may be prescribed. Since the Labour Court/ Tribunal is exercising the aforesaid limited powers and in view of the provisions that while exercising the same power in an inquiry or investigation, it is the judicial proceeding within the meaning of sections 193 and 228 of the IPC, we are of the opinion that exercise of powers by Labour Court/ Tribunal will not cover the test laid down by the Apex Court in the case of Thakore Jugal Kishore (supra). In the said case, the Registrar was enjoying the same powers as are given to ordinary civil boards by the Code of Civil Procedure including the power to summon and examine witnesses on oath, the power to order inspection of documents, to hear the parties after framing issues, to review his own order and even exercise the inherent jurisdiction of Courts mentioned in S. 151 of the Code of Civil Procedure. In adjudication upon a dispute referred under S. 48 of Bihar and Orissa Cooperative Societies Act, the Registrar was discharging the same functions and duties in the same manner as a Court of law is expected to do. Since the Registrar under the said judgment was exercising same powers as are given to ordinary civil courts by the Code of Civil Procedure, the Apex Court was required to hold that the Assistant Registrar discharging the functions of Registrar under section 48 read with 2 of the Bihar and Orissa Cooperative Societies Act is a 'Court'. As observed earlier, the Labour Court/Tribunal exercising very limited powers stated above cannot and will not come within the purview of the test laid down by the Apex Court. 9 The Supreme Court, in the case of Bharat Bank Ltd. (supra), has held that the Industrial Tribunal, though discharges judicial functions, is not a "Court". It was observed therein that the Industrial Tribunal set up under section 7 of the Industrial Disputes Act, 1947 has all the necessary attributes of a Court of Justice. The fact that the Government has to make a declaration under section 15(2) of the Act after the final decision of the Tribunal is not in any way inconsistent with the view that the Tribunal acts judicially. The functions and duties of the Industrial Tribunal are very much like those of a body discharging judicial functions although it is not a "Court" in the technical sense of the word. Reading the said observations of the Supreme Court,it is clear that one cannot go by mere nomenclature. One has to examine the functions of the Tribunal and how it proceeds to discharge its functions. In substance, the Labour Court/ Tribunal having all trappings of the Court and performing functions which cannot but be regarded as judicial. Apart from having some of the trappings of a Civil Court, it is also required to be considered as to whether it has power to give a decision or a definitive judgment which has finality or authoritativeness which are also the essential tests of a judicial pronouncement. 10. Section 17(1) of the Industrial Disputes Act provides for publication of every report of a Board or Court together with any minute of dissent recorded therewith, every arbitration award and every award of a Labour Court, Tribunal or National Tribunal, within a period of thirty days from the date of its receipt by the appropriate Government, in such manner as the appropriate Government thinks fit. Subsection (2) of section 17 provides that the award published under subsection (1) shall be final and shall not be called in question by any Court in any manner whatsoever. The Division Bench of this Court in the case of Girishchandra R.Bhatt(supra), after considering section 17 and 17-A of the Industrial Disputes Act,held that the pronouncement of Labour Court/ Tribunal or National Tribunal under the Industrial Disputes Act has neither finality nor authoritativeness though they fall within the trappings of the Court inasmuch as they are subject to publication by the appropriate Government. The Division Bench in the said judgment has observed that: "From the provisions of Section 17-A, it is clear that despite the judicial pronouncement by the Labour Court, Tribunal or National Tribunal, power lies with the appropriate Government to reject or modify the same. When the power is lying with the Government to reject or modify the award given by Labour Court, Tribunal or National Tribunal,it cannot be said that the award has a finality or authoritativeness. Finality and authoritativeness are the essential tests of a judicial pronouncement. " Thus, considering the aforesaid provisions of the Industrial Disputes Act, it is clear that the Labour Court / Industrial Tribunal created by the Government to decide industrial and labour disputes under Article 323-B of the Constitution of India read with section 7 of the Industrial Disputes Act are not "Courts" unless constituted as such by the Act creating them. They have wide powers which are out of the way from the ordinary law administered by Courts of law and they are not bound by ordinary procedural laws. They act on the principles of equity and justice and good conscience. The ordinary course of law has no power to grant reinstatement with or without back wages; that power is special and peculiar to the Labour Court. It does not exercise powers of Civil Court. Even though it has trappings and attributes of a "Court", it is not a "Court". Even although it must discharge its duties in a "judicial" manner, it does not for that reason have the status of a "Court". It is a quasi judicial body and has features in common with the Court. In our opinion, a distinction is required to be drawn between the "Courts" and the Tribunals which are not "Courts". Just because a Tribunal shares resemblance of a Court cannot be held to be a "Court. They have to act judicially, but that itself does not make them a Court of Law. (See Attorney General Vs. British Broadcasting Corporation, 1980(3) All England Law Reports 161). 11. As observed earlier,in view of subsection (1)of section 11 of the Industrial Disputes Act, which confers same power as vested in the Civil Court in respect of certain matters only, the proceedings before them are deemed to be judicial proceedings within the meaning of sections 193 and 228 of the IPC. Under subsection (6) of section 11, the presiding officers of a Labour Court, Tribunal or National Tribunal shall be deemed to be public servants within the meaning of S.21 of the IPC. They are deemed to be Civil Court for the purpose of sections 345, 346 and 348 of the Code of Criminal Procedure only. The proceedings before such forums are judicial proceedings in view of the powers conferred on them by section 11(3) of the Industrial Disputes Act.They have all the trappings of the Judicial Tribunal. If they were Courts, such provisions were not necessary. Merely because they are subjected to under Articles 226 and 227 of the Constitution and they are amenable to writ jurisdiction, they are not "Courts" as contemplated by the Contempt of Courts Act. In view of this, the phrase used "Court subordinate to High Court" under section 10 of the Contempt of Courts Act is for the purpose of judicial supervision. Even while exercising wide powers under Article 227 of the Constitution, High Court cannot withdraw a case to itself from a labour court or tribunal and dispose of the same, or determine merely the question of law as to