B.C. PATEL

(1) The petitioner has approached this Court by filing this application under the provisions contained in the Contempt of Courts Act, inter alia alleging that the respondent-Divisional Controller, Gujarat State Road Transport Corporation has not carried out the direction as per the award pronounced by the Labour Court on 10-11-1994 in reference (LCN) 496 of 1989. The competent authority under the provisions contained in the Industrial Disputes Act made a reference to the Labour Court on 6-11-1989 raising industrial dispute under Sec. 10(1) of the Industrial Disputes Act, 1947 as the petitioner herein alleged that he is relieved illegally on 22-9-19-7. On appreciation of the material placed before the Labour Court the direction was given, to reinstate the petitioner herein. It was also directed that the petitioner should be paid 25% of the wages which otherwise he would have been entitled, if he was on duty

(2) This Division Bench has, in the judgment passed on 2/08/1995 in Miscellaneous Civil Application No. 1411 of 1991 (reported in J. A. Goraswa v. D.I.G. and I.G.P., Gujarat State, 1995(2) GLR 1666) in Spl. C. A. No. 4009 of 1991, relying on the decision of Calcutta High Court in the case of Tarafatulla Mandal v. S. N. Maitra, reported in AIR 1952 Cal 919 [LQ/CalHC/1951/374] , held that a proceeding in contempt is by its nature a proceeding in personam and, therefore, name of the individual is required to be given who is alleged to have disobeyed the directions of the Court and there must be a specific pleading as to how that individual was responsible for carrying out the orders or direction of the Court. It is again made clear that we do not say that at no stage, a State or Corporation cannot be a party in a contempt application. In addition to the individual, the presence of the State or the Corporation etc. would be useful in identifying the individual officer concerned who should be charged for contempt. A contempt proceedings cannot be proceeded with in the absence of an individual person being a party as contemner, who is required to be charged of the alleged act. In the instant case, neither the name of the contemner is given nor are there any specific pleadings as to how contempt is committed. For this reason also, this petition is required to be rejected.

(3) The petitioner in his petition has referred to a reported decision of this Court in the case of (Shri) Bipinchandra B. Singwala v. Navin Flourine Industries and Anr., reported in 1981, GLH 259 : (1981 GLR 1070), in the support of contentions. The Division Bench of this Court on the contrary has observed as under in para 4 : " We have no supervisory, control over the Labour Court. Even if we had supervisory control we would not be in a position to direct the Labour Court to dispose of the matter within a specified time because the Courts are flooded with work as is well-known. Besides, the power of the High Court under the Contempt of Courts Act does nor depend on whether or not the petitioner can make an approach to the Labour Court or can file Civil suit or apply for the execution of the award through the Collector by way of Recovery Application. Though under the circumstances, we do not hold respondents guilty of contempt for their failure to comply with the Award so far and punish them."

(4) The Court after coming to the conclusion as aforesaid with a view to avoid multiplicity of proceedings and to see that parties are not obliged to incur avoidable expenditure, Court directed the respondents in that case to pay petitioner back wages within the time stipulated as mentioned in para 5 of the judgment.

(5) Division Bench of this Court, in the case of Vadodara Mazdoor Congress v. Indian Oil Corporation, reported in 1995(2) GLR 971, has taken a view that the jurisdiction of the Court should not be invoked when there is an alternative remedy available to a workman to approach Industrial Forum under Sec. 33C of the Industrial Disputes Act.

(6) We are fortified by the views taken by the Apex Court in the case of Alhur Co-operative Society v. Sham Lal, (Civil Appeal No. 2050 of 1990 decided on 2 4/04/1990 reported in 1995(2) GLH 550). In that case, Sham Lal approached the Labour Court and obtained an award with regard to reinstatement and back wages and since the Alhar Co-operative Credit Society did not comply with the order of the Labour Court, applications under Sec. 33C(2) of the Industrial Disputes Act were filed in succession for different periods and as proceedings did not bring positive result for satisfying the award, Sham Lal ultimately moved the High Court for contempt action and the High Court entertained the petition and made an order against which appeal preferred by the Alhar Co-operative Credit Society came to be dismissed and authority proceeded to execute the direction issued in the matter of recovery of the dues of the respondent. In that process, the order attaching the Bank account of the Society came to be passed. These proceedings were taken before the Apex Court. The Apex Court has held as under : "The Labour Court is not a Court subordinate to the High Court in the sense the Contempt of Courts Act and makes provisions requiring the High Court to deal with contempt of its subordinate Courts; therefore, the High Court should have looked into that aspect before entertaining the contempt proceedings for non-compliance of the direction of the Labour Court. The contempt proceedings are again not intended to be a substitute of the execution process and, therefore, care should have been taken before entertaining contempt petition to examine the maintainability of such action."

(7) In the instant case.it is also clear that with a view to execute the awared passed by the Labour Court, the present petition is preferred instead of approaching the Industrial Forum under Sec. 33C of the Industrial Disputes Act.There is provision in the Industrial Disputes Act for recovery and for filing a prosecution. The petitioner has not chosen to take appropriate remedy and has rushed to this Court.

(8) Hence, we find no merits in the petition and hence the application stands rejected. N. N. MATHUR, J. (Concurring) : I agree with the conclusion arrived at by my learned Brother Justice B. C. Patel. However, I may add to say that we are not oblivious of the fact that legislative measure provided under Industrial disputes Act for execution of the award is inadequate. The remedy is without effective tooth. There is need of sharp tooth.

(9) It is to be borne in mind that the requirement of community and in case of inadequacy of legislative measure, court cannot take the task to fill in the blank, just for the reason that legislature has no adequate time to deal with the matter.

(10) This Court to mitigate the suffering of the workmen in its activist role, entertained the grievance of non-compliance of the award passed by the Industrial Court under the provisions of the Contempt of Courts Act, 1971. In Bipinchandra B. Singwala v. Navin Flourine Industries, reported in 1981 GLH 259 [LQ/GujHC/1981/84] : (1981 GLR 1070), this Court held that power of the High Court under the Contempt of Courts Act does not depend on whether or, not the petitioner can approach the Labour Court or can file Civil suit or apply for execution of the award through the Collector by way of recovery application. In the said case, though this Court found that there was failure to comply with the award passed by the Labour Court but in the facts of the case refused to intimate contempt proceedings. As the contention of the management that contempt petition cannot be entertained in view of remedy under Sec. 33(2) was rejected, it is understood that an award can be executed by approaching the High Court under the provisions of Contempt of Courts Act, 1971.

(11) The innovation worked well initially, and it does work in some cases even today, but by the passage of time, the artificial tooth provided by judicial activism has lost its sharpness and it has almost become blunt. All possible defence right from identification of parties to incapacity to, comply with the award are taken. In the case of Niaz Mohammad v. State of Haryana, reported in AIR 1995 SC 308 [LQ/SC/1994/900] , the Supreme Court has observed that the Civil Court while executing a decree against the judgment-debtor is not concerned and bothered whether the disobedience to any judgment, or decree, was wilful. Once a decree has been passed, it is the duty of the Court to execute the decree whatever may be the consequence thereof. But while examining the grievance of the person who has invoked the jurisdiction of the Court to initiate the proceedings for contempt for disobedience of its order, before any such contemner is held guilty and punished, the Court has to record a finding that such disobedience was wilful and intentional. The Court held thus - "if from the circumstances of a particular case brought to the notice of the Court, the Court is satisfied that although there has been a disobedience but such disobedience is result of some compelling circumstances, it was not possible for the contemner to comply with the order, the Court may not punish the alleged contemner." Thus, in contempt proceedings, enquiry on various facts is required. During the enquiry, though summarily includes reply, rejoinder, sub-rejoinder, various affidavits, production of various documents like audited accounts etc., various applications are filed by the parties on which the Court is required to pass interim orders. Initially, a short notice is given under the hope that on returnable dates or one or two dates subsequent thereto the respondent will comply with the award or the matter will be sorted out, and the notice will be discharged. But inspite of all serious efforts, the experience shows that the matters are contested and even reply, rejoinder, compromise talks, its failure takes more than a year. In many cases after 3 to 4 years "Rule" is issued. Now, it has reached to a stage that inspite of the fact that two Honble Judges constituting the Division Bench is assinged a regular roaster of contempt matters, even the contempt petitions filed in the year 1986 are still pending. We wonder how such a measure can be said to be effective to mitigate the hardships of a person in whose favours the award is passed.

(12) . Thus, the vigilant and public spirited citizens are expected to invite the attention of the Government/Legislature, that while fixing the priorities to attain the need of fast changing society, with growing and competing interest, to deal with the subject to provide effective tooth under various enactments, more particularly, under the Industrial Disputes Act, 1947. (There are number of enactments where remedy is provided without tooth making the remedy meaningless). It appears that some of the State Governments have made suitable Amendments to mitigate the hardship of the concerned people. It will be fruitful to refer and reproduce them hereunder : State Amendments - Section 33C "ANDHRA PRADESH - In sub-sec. (1) of Sec. 33C of the principal Act, for the words "to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue," the words "to the Chief Judicial Magistrate or the Chief Metropolitan Magistrate having jurisdiction and Chief Judicial Magistrate or the Chief Metropolitan Magistrate, as the case may be, shall proceed to realise the money as if it were a fine imposed by such Magistrate" shall be substituted." WEST BENGAL - In Sec. 33C of the principal Act, in sub-sec. (1), for the words, "to the Collector who shall proceed to recover the Same in the same manner as an arrear of land revenue", the words "to the Chief Judicial Magistrate or the Chief Metropolitan Magistrate having jurisdiction and the Chief Judicial Magistrate or the Chief Metropolitan Magistrate, as the case may be, shall proceed to realise the money as if it were a fine imposed by such Magistrate" shall be substituted." State Amendment - Section 36 MADHYA PRADESH - In Sec. 34 for sub-sec. (2), the following sub-section shall be substituted, namely :- "(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force every offence punishable under this Act and thes specified in Part B of the Second Schedule shall be tried by the Labour Court within the local limits of whose jurisdiction it was committed." The petition is accordingly rejected.