R. N. MADHAVA v. CANARA BANK — 1998 DIGILAW 751 (KAR)

CHIDANANDA ULLAL, J. ( 1 ) THIS is an unfortunate case, for a Bank clerk (also an ex-serviceman) who had grievance of denial promotion to him for pretty long time is up in arms as against his own employer, the Canara Bank. This petition is filed under Section 14 of the Contempt of Courts Act as against the respondent-Canara Bank, represented by its Chairman, Sri T. R. Sridharan, with a prayer that the respondent-Bank be proceeded against for the offence committed under sub-clause (iii) of Section 2 (c) of the Contempt of Courts Act, 1971. ( 2 ) WE heard the learned counsel for the complainant, Sri O. Sridharan on the one side and the learned Senior Counsel, Sri M. R. Narasimhamurthy appearing for the respondent-Bank. We also perused the case records. ( 3 ) THE main allegations averred in the contempt petition are that when WA No. 367/93 came to be disposed of on 5-2-1996 by the Division Bench to which the second of us was a Presiding Judge along with his Lordship Justice S. A. Hakeem, as he then was, the respondent-Bank had suppressed the fact that the reference in ID No. 43/88 before the Industrial Tribunal, Madras for adjudication under Section 10 (1) (d) of the Industrial Disputes Act, 1947, was dismissed on 2-12-1993 and that because of that suppression of fact, the Division Bench was alluded to pass a wrong order to dismiss the writ appeal with liberty to the petitioner to intervene in the above industrial dispute on the file of the said Industrial Tribunal and further that when I. A. III came to be filed in the hands of the petitioner in the said writ appeal for recalling the above order passed on 5-2-1996, the Division Bench consisting of his Lordship Justice, G. C. Bharuka and second of us had observed that the same was an act of contempt on the part of the respondent-Bank and therefore advised the petitioner to file a criminal contempt as against the Bank. That, the respondent-Bank having filed detailed counter to traverse the petition-averments denied the allegations in toto. It also contended that when the writ appeal in WA No. 367/93 came to be dismissed on 5-12-1996, the respondent-Bank did not urge the Division Bench of this Court to direct the complainant to seek relief in the hands of the Industrial Tribunal. That, the respondent-Bank having filed detailed counter to traverse the petition-averments denied the allegations in toto. It also contended that when the writ appeal in WA No. 367/93 came to be dismissed on 5-12-1996, the respondent-Bank did not urge the Division Bench of this Court to direct the complainant to seek relief in the hands of the Industrial Tribunal. It also contended that while disposing of I. A. III by the Division Bench on 28-1-1998, the Division Bench categorically stated that there was no reference to the pendency or otherwise of the reference before the Industrial Tribunal at Madras and that therefore, it could not be contended by the petitioner that there was misrepresentation on the part of the Bank before the Division Bench as alleged. That, such a statement was made by the respondent-Bank with reference to the order that came to be passed on 28-1-1998 on I. A. No. III by the Division Bench. That thereafter, the respondent-Bank had also got filed an affidavit duly sworn to by its Senior Manager working in its Circle Office at Chennai to say that there was absolutely no intention on the part of the Bank or any of the officials of the Bank to suppress the fact of disposal of the reference or to mislead this Court and that they have got just respect for Courts etc. ,. The petitioner had also filed counter-affidavit as against the said affidavit filed by the said official of the respondent-Bank to challenge the same. We do not think, it is necessary for us to advert to all that while considering the instant contempt petition. ,. The petitioner had also filed counter-affidavit as against the said affidavit filed by the said official of the respondent-Bank to challenge the same. We do not think, it is necessary for us to advert to all that while considering the instant contempt petition. ( 4 ) THE main contention of the learned counsel for the petitioner, Sri O. Shridharan was that, the dispute between the Employees Union on the one side and the respondent-Bank on the other in ID No. 43/88 was dismissed long time ago on 2-12-1993 for default of the petitioner in that dispute and that the Ministry of Labour, Government of India, had also forwarded a copy of the Notification thereto to the respondent-Bank and the other parties to the said dispute and despite knowing the said fact of dismissal of the said Industrial Dispute on 2-12-1993, the same was suppressed before the Division Bench when WA No. 367/93 came to be dismissed of on 5-3-1996 with liberty to the petitioner to resort to an intervener application in the said industrial dispute, if so advised to do and thus the respondent-Bank misled the Division Bench to have a favourable order in the hands of the Division Bench of this Court in WA No. 367/93, for they were knowing that the liberty to the petitioner to file an intervenor application was of no consequence to him. According to Sri O. Sridharan, withholding of the said material facts was deliberate and wilful and therefore, the respondent-Bank had to be dealt with in accordance with law and to be punished under sub-clause (iii) of Section 2 (c) of the Contempt of Courts Act, 1971. Sri Sridharan had also cited before us the following six decisions in support of his contention; 1. R. L. Kapur v. State of Tamil Nadu, 1972 Cri LJ 643 (V 78 C 159) : ( AIR 1972 SC 858 ); 2. Delhi Development Authority v. Tejwant Singh, (1995) 3 SCC 525 : (1995 AIR SCW 1448); 3. Afzal v. State of Haryana, (1996) 7 SCC 397 : (1996 Cri LJ 1679); 4. Navaindas v. Govt. of Madhya Pradesh, (1975) 3 SCC 31 : (1974 Cri LJ 924); ( 5 ) THE Aligarh Municipal Board v. Ekka Torega Mazdur Union, AIR 1970 SC 1767 : (1970 Cri LJ 1520); ( 6 ) PRITAM Pal v. High Court of Madhya Pradesh, 1993 Supp SCC 529. 5. Navaindas v. Govt. of Madhya Pradesh, (1975) 3 SCC 31 : (1974 Cri LJ 924); ( 5 ) THE Aligarh Municipal Board v. Ekka Torega Mazdur Union, AIR 1970 SC 1767 : (1970 Cri LJ 1520); ( 6 ) PRITAM Pal v. High Court of Madhya Pradesh, 1993 Supp SCC 529. 5. Per contra, the learned Senior Counsel, Sri Narasimhamurthy appearing for the respondent-Bank on the other hand argued that before the Division Bench when WA No. 367/93 came to be disposed of on 5-2-1996, the question of pendency or otherwise of the dispute in ID No. 43/88 did not crop up at all and that all that what the Division Bench had considered in the facts and circumstances of the case was as to whether the impugned order therein dated 20-1-1993 passed by the learned single Judge in WP No. 1977/86 was just and proper in refusing to exercise its discretion in view of the fact that the very same question was the subject matter of dispute in the reference made to the Industrial Tribunal at Madras for adjudication under Section 10 (i) (d) of the Industrial Disputes Act and nothing beyond. It was also argued by him that while dismissing the writ appeal, the Division Bench on its own was pleased to give liberty to the petitioner to intervene in the said industrial dispute before the Industrial Tribunal at Madras. Therefore, according to Sri Narasimhamurthy, the instant petition resorted to by the petitioner was totally a misconceived petition and hence the same is liable to be dismissed in limine. Incidentally he had also pointed out that, while the Division Bench had considered I. A. III to recall the order dated 5-2-1996 passed on 28-1-1998 in WA No. 367/93, it had clearly observed therein that there was no reference to the statement made by either side regarding the pendency of the dispute before the Industrial Tribunal at Madras and therefore on the face of the records it could not be accepted that there was misrepresentation on the part of the Bank. Therefore, he submitted that it was totally incorrect on the part of the petitioner to aver in the petition that the Division Bench consisting of his Lordship Justice G. C. Bharuka and second of us had observed while passing the order on I. A. III that there was an act of contempt committed by the respondent-Bank in suppressing material facts with regard to the very disposal of the Industrial Dispute in question. Sri Narasimhamurthy in support of his argument had also cited before us the following two decisions : 1. D. N. Taneja v. Bhajan Lal, (1998) 3 SCC 26 (sic ). 2. The Commissioner, Agra v. Rohtas Singh, (JT 1997 (9) SC 721 : (1998 Cri LJ 838 ). 6. Incidentally, Sri Narasimhamurthy had also drawn our attention to the affidavit that came to be filed by the Senior Manager, Circle Office, Chennai to the effect that there was no intention on the part of the Bank to suppress the fact as to the disposal of the industrial dispute before the Industrial Dispute at Madras. Therefore, he prayed that the instant contempt petition be dismissed as the same is devoid of merit. ( 7 ) IN the light of the above arguments advanced by both sides, the questions that arise for our consideration in the instant petition are: whether the respondent-Bank had suppressed the material facts as to the disposal of ID No. 43/88 on the file of the Industrial Tribunal at Madras on 2-12-93 when WA No. 367/93 came to be disposed of by the Division Bench on 5-2-1996 and whether the respondent-Bank was guilty of the offence under sub-clause (iii) of clause (c), Section 2 of the Contempt of Courts Act, 1971 as alleged by the petitioner. ( 8 ) THE main thrust of the argument advanced by the learned counsel for the petitioner, Sri Shridharan was that when the appeal in WA No. 367/93 came to be disposed of on 5-2-1996, ID No. 43/88 resorted by certain trade union of the respondent-Bank came to be disposed of by the Industrial Dispute at Madras as long back as on 2-12-1993 to the knowledge of the respondent-Bank and despite that they misled this Court in not bringing the said fact to the notice of the Division Bench and thus allowing the Division Bench to pass an order on 5-2-1996 in WA No. 367/93 dismissing the same to the advantage of the Bank and further to the peril of the petitioner herein. According to him, the Division Bench was made to believe that the Industrial Dispute was very much pending before the Industrial Tribunal at Madras and it is because of that, while dismissing the writ appeal of petitioner, liberty of no consequence was given to him to intervene therein and that the writ appeal would not have been dismissed by the Divisional Bench with that liberty to the petitioner to file an intervenor application or in other words to say that the Division Bench would not have dismissed the appeal, had it had the knowledge that the Industrial Dispute was disposed of (by) the Industrial Tribunal as long back as on 2-12-1993. ( 9 ) IN view of the above submissions, we have gone through the order dated 5-2-1996 in WA No. 367/93 passed by the Division Bench. In this context, we feel it proper to quote the above order dated 5-2-1996 passed by the Division Bench, the same reads as hereunder :"the appellant is an ex-Serviceman, who after his discharge from the army was employed by the first respondent-Bank. He had sought for a declaration as to the manner of promotion that has to be effected from the cadre of clerks to the cadre of those of the officers who had been drawn from ex-Serviceman group. He relied upon the direction issued by the Government of India that 14. 5% to 24. 5% of vacancies in the posts of Group 'c' and 'd' respectively should be reserved for ex-serviceman and dependents of those who are killed in action. He relied upon the direction issued by the Government of India that 14. 5% to 24. 5% of vacancies in the posts of Group 'c' and 'd' respectively should be reserved for ex-serviceman and dependents of those who are killed in action. A settlement was arrived at by the Canara Bank and its employees' Union on 24-1-81 under which a minimum of one year's service in the cadre of clerk, typists, etc. was prescribed to consider their eligibility to come within the direction of the Government of India prescribing the reservation quota. 2. The learned Judge has refused to exercise his discretion in view of the fact that the question is the subject matter of a dispute in a reference made to the industrial Tribunal at Madras for adjudication under Section 10 (1) (d) of the Industrial Disputes Act, in which the effect of various settlements and the orders issued by the Government will have to be appropriately considered. In the circumstances, liberty is reserved to the appellant to agitate the matter later, if necessary, before an appropriate forum after the disposal of the reference. We do not find any error in the order warranting interference in this appeal. 3. Before parting with this appeal, it is appropriate to mention that it is open for the appellant, if so advised, to intervene in the pending reference proceedings referred to above. 4. The appeal is accordingly dismissed. " ( 10 ) BY going through the above order passed by the Division Bench, in our considered view, it could not be said that the respondent-Bank had in any way misled the Division Bench to say that the dispute in question was very much in pendency before the Industrial Tribunal. It is complained by the petitioner that the respondent-Bank did aware as to the disposal in ID No. 48/88 as long back as on 2-12-1993 and that the Division Bench proceeded with an impression that such a dispute was in fact pending before the above Industrial Tribunal. It is quite possible that it is for that reason, in para (3) of the above order, the Division Bench felt it proper to say therein that it was open for the petitioner, if so, advised to be an intervener in the said pending reference before the Industrial Tribunal, Madras. It is quite possible that it is for that reason, in para (3) of the above order, the Division Bench felt it proper to say therein that it was open for the petitioner, if so, advised to be an intervener in the said pending reference before the Industrial Tribunal, Madras. Even if it is taken that the respondent-Bank had the knowledge as to the disposal of the Industrial Dispute on 2-12-1993 one cannot rule out the communication gap between the respondent-Bank on the one side and its counsel on record in the writ appeal before the Division Bench on the other. Such a situation is more probable when the industrial dispute in question was prosecuted at Madras and dealt with by the Bank's Circle office at Chennai, when the litigation branch herein Bangalore of the respondent-Bank was in charge of the writ petition and pursuant writ appeal filed by the petitioner before this Court. If that is so, it is difficult for one to say with certainty that the respondent-Bank misled the Division Bench in WA No. 367/93 to pass the above order. We would have definitely appreciated the above submission of the learned counsel for the petitioner had there been such a specific and positive statement thereto made by the respondent-Bank before the Division Bench to the effect that the Industrial Dispute in question was very much pending as on the date of disposal of the writ appeal and that the petitioner could be an intervenor to the same. But in the case in hand it is not the factual situation at all. Let apart by going through the order dated 5-2-1996 in the writ appeal quoted as above, we get an impression that the Division Bench on its own gave liberty to the petitioner to resort to an application before the Industrial Tribunal taking that the said dispute was pending before the Industrial Tribunal and that the Division Bench took that way, for the learned single Judge had disposed of the writ petition in WP No. 19777/86 of the petitioner with the liberty reserved to him to agitate the matter after disposal of the Industrial Dispute. We cannot forget for a moment here that at the time of disposal of the said writ petition on 20-1-1993, the Industrial Dispute was very much in pendency before the Industrial Tribunal since, admittedly the same came to be dismissed only on 2-12-1998. ( 11 ) NEXTLY, we come to other contention of the petitioner that in passing an order dated 28-1-1998 on I. A. III, his Lordship Justice G. C. Bharuka and the second of us had observed that the respondent-Bank had suppressed the fact of the disposal of the Industrial dispute on 5-12-1993 by the Industrial Tribunal, Madras before the Division Bench and thus it had committed the contempt of Court. To find out of the veracity of such a contention, we have gone through the said order passed by the Division Bench on I. A. III. In so doing, not only that we didn't find therein such an observation, but instead we found adverse observation as against the petitioner himself to say that there was no reference by the either side to the pendency or otherwise of the industrial dispute before the Industrial Tribunal, Madras when WA No. 367/93 came to be disposed of by the Division Bench. That observation we found in para (4) of the order on I. A. III, we feel it appropriate to quote the same in this context. The same reads as hereunder :"4. It cannot be disputed that on the day on which the writ petition was disposed of by the learned single Judge the reference before the Tribunal was still pending. According to the parties that reference was answered on 2-12-1993. The Division Bench, as is evident from the reasons quoted above, has merely considered the correctness of the order passed by the learned single Judge. There is no reference about the statement made by either side regarding pendency or otherwise of the reference before the Tribunal. Therefore, on the face of the record it cannot be accepted that there was misrepresentation on the part of the Bank. " ( 12 ) FROM the above, it is crystal clear that there is no substance in the said limb of the argument of the learned counsel for the petitioner either. That in fact is also one of the lines of argument of the learned Senior Counsel appearing for the respondent-Bank too. " ( 12 ) FROM the above, it is crystal clear that there is no substance in the said limb of the argument of the learned counsel for the petitioner either. That in fact is also one of the lines of argument of the learned Senior Counsel appearing for the respondent-Bank too. ( 13 ) IN the said facts and circumstances of the case, we do not find prima facie case to proceed against the respondent-Bank for the alleged offence as defined under Clause (iii) of S. 2 (c) of the Contempt of Courts Act. When we do not find a prima facie case on facts, we don't find it necessary to advert to certain decisions cited before us by both the sides, accordingly we have chosen not to do that here. All the more, we cannot be technical in the matter of exercising contempt jurisdiction by us either under Article 215 of the Constitution of India or for that matter under the Contempt of Courts Act, 1971, for contempt of Court is a serious matter which may end up with punishment of imprisonment or fine or both as provided for under S. 12 of the said Act, if one were to be found guilty of the offence and as such, in our considered view, demands unimpeachable evidence. As we see, the case in hand is not one of that kind. In that view of the matter, we do not find any merit in the instant contempt petition, the same is therefore stands dismissed. Notice stands discharged. Petition dismissed. --- *** --- .