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2009 DIGILAW 2442 (ALL)

MASHOOQ AHMAD v. STATE OF U. P.

2009-07-02

KRISHNA MURARI, S.RAFAT ALAM

body2009
JUDGMENT By the Court.—This is intra Court appeal. 2. We have heard Shri Chandra Jee Yadav, learned counsel for the appellant and Shri P.K. Mukherji for respondent Nos. 3 and 4. 3. Writ Petition No. 46532 of 2008 was filed by M/s. Bharat Pumps & Compressors Ltd. challenging the award of the labour Court, wherein the conditional order dated 8.9.2008 staying the execution of the award was passed. The Court while passing the order dated 8.9.2008 observed that copy of the award filed alongwith the writ petition does not bear any date, but proceeded after a certified copy of the award bearing the date 2.3.2007 was produced. The appellant-workman alleging certain incorrect statement with regard to the date of the award made in the writ petition, which amounts to practising fraud upon the Court, filed contempt petition being Contempt Application No. 3685 of 2008, which was dismissed vide order dated 23.10.2008 on the finding that the fact that copy of the award did not bear any date, was in the notice of the writ Court and the workman, who was duly represented before the writ Court, himself pointed out the anomaly as well and produced the certified copy of the award bearing the date and no manipulation as alleged in the contempt petition was pointed out to the writ Court. After dismissal of the civil contempt, the workman-appellant herein filed a Criminal Petition No. 1 of 2009. A Division Bench of this Court vide order dated 23.1.2009 dismissed the same as being not maintainable with the observation that since the award in which interpolation has been alleged was passed by the labour Court, the fact ought to have been pointed out before the concerned labour Court for making inquiry and, accordingly, taking necessary action in the matter. Thereafter, the workman-appellant moved an application before the Labour Court for initiating contempt proceedings against respondent Nos. 3 and 4 herein, the officers of the company. Labour Court issued notices for their personal appearance, which was impugned in the writ petition, out of which, the present special appeal arises. 4. Learned counsel for the appellant contended that since the notices were issued pursuant to the order passed in the Criminal Contempt Application No. 13207 of 2009, therefore, the Hon’ble Single Judge ought not to have passed the interim order. 5. We are not impressed with the submission. 4. Learned counsel for the appellant contended that since the notices were issued pursuant to the order passed in the Criminal Contempt Application No. 13207 of 2009, therefore, the Hon’ble Single Judge ought not to have passed the interim order. 5. We are not impressed with the submission. Hon’ble Single Judge finding that the contempt, if any, as alleged by the appellant, was with reference to the records produced in the Writ Petition No. 46352 of 2008, and therefore, such application for contempt on the charge of interpolation in the record could have been made in the said writ petition and no parallel proceeding initiated on the application made before the labour Court is contemplated. Further the labour Court is not vested with any power to initiate proceeding for contempt. Besides that, the issue involved in the writ petition is yet to be decided finally on merit and, thus, the order of the Hon’ble Single Judge cannot be termed as a judgment or even having the trappings of a judgment so as to make it appealable under Chapter VIII Rule 5 of the Rules of the Court. We are of the considered view that no appeal would be maintainable against the order impugned in this appeal, the same being interlocutory in nature. 6. The view taken by us is supported by the judgment of the Hon’ble Apex Court in the case of Midnapore Peoples’ Cooperative Bank Ltd. and others v. Chunilal Nanda and others, (2006) 5 SCC 399. Reference may also be made to the Division Bench judgment of this Court in which one of us (S.R. Alam, J.) is a member in the case of Chhatra Dhari Prasad and others v. Anil Kumar Gautam and others, 2007(3) ADJ 85 (DB). 7. Thus, the appeal being not maintainable stands dismissed. However, it shall be open to the appellant to appear in the writ petition and file counter affidavit alongwith the stay vacation application. ————