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1995 DIGILAW 429 (GUJ)

Bharatbhai Jivabhai Patel v. P. S. Bhatia

1995-09-28

R.R.JAIN, S.M.SONI

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S. M. SONI, J. ( 1 ) AS the common question whether these applications are maintainable in view of the fact that alternative efficacious remedy to make the other side obey the order is available, and in view of such provisions non-complying of the order can be said to be wilful and deliberate disobedience under the Contempt of Courts Act, is involved in both these petitions, they are disposed of by this common judgment. ( 2 ) MCA No. 353/93 is filed for taking action under the Contempt of Courts Act, for non-compliance of the award dated 27. 5. 92 passed by Labour Court, Ahmedabad in T. Application No. 766/83. MCA No. 791/94 is filed for taking action under the Contempt of courts Act, against the respondent for non-compliance of the very order of the Labour court referred in the earlier matter, but confirmed by this court in Spl. Civil Application no. 5468/93. ( 3 ) LABOUR court has ordered for reinstatement with continuity of service and back wages under the provisions of Bombay Industrial Relations Act, 1946, but there is a specific provision for taking penal action under sec. 106 of the said Act, for non-compliance of the order. Non-compliance of the order is in view of sec. 46 of the bombay Industrial Relations Act. Sec. 46 refers to illegal change and it is clear from sub-sec. (5) that failure to carry out the terms of any settlement, award, registered agreement or effective order or decision of a Wage Board, a Labour Court or the industrial Court affecting industrial matters, shall be deemed to be an illegal change. Thus, for making illegal change, there is a penal provision under sec. 106. Thus, in our opinion, there is an alternative, efficacious and prompt remedy. The remedy under sec. 106 is more efficacious, in our view, as it provides for an imprisonment for three months and a fine of Rs. 5000- every day, on which the contravention continues. Thus, in view of this alternative remedy, we would not like to exercise our powers under the contempt of Courts Act. ( 4 ) QUESTION is whether the order of this court, of which breach is committed and the grievance is made in MCA No. 791/94, can be said to be an illegal change? Thus, in view of this alternative remedy, we would not like to exercise our powers under the contempt of Courts Act. ( 4 ) QUESTION is whether the order of this court, of which breach is committed and the grievance is made in MCA No. 791/94, can be said to be an illegal change? In our opinion, initial order is passed by the Labour Court exercising jurisdiction under the bombay Industrial Relation Act, 1946, against which an appeal was preferred before the industrial Court at Ahmedabad. Against that, the petition was filed before this court. Therefore, this court was exercising power, no doubt under Article 227 of the Constitution of India, of superintending jurisdictioin over the court constituted and contemplated under the Bombay Industrial Relations Act. Therefore, this court while exercising power under article 227 of the Constitution of India was exercising the powers of court under Bombay industrial Relations Act and, therefore, the very order of this court arises from Bombay industrial Relations Act, and could be executed under Bombay Industrial Relations Act itself. Therefore, the order of this Court is also executable under the Bombay Industrial relations Act, and there is thus an alternative remedy. ( 5 ) IN view of the observation of the Supreme Court in the case of Alahar co-operative Credit Service Society vs. Sham Lal in Civil Appeal No. 2050 of 1990 (Arising out of SLP (C) No. 1770 of 1990), contempt proceedings are not intended to be a substitute of the execution process. When an execution is available, then, in our opinion, parties should approach the court or authority who can execute that order. In our opinion, executable orders cannot be said to be, if not complied with, a wilful or deliberate disobedience. In view of this fact, in our opinion, there is no wilful or deliberate disobedience and there is an alternative remedy. Therefore, these petitioins are not maintainable and liable to be dismissed. The same are hereby dismissed. Rule in each matter is discharged with no order as to costs. .