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2010 DIGILAW 3256 (MAD)

R. Srinivasan & Others v. F. L. Suresh

2010-08-02

D.MURUGESAN, P.P.S.JANARTHANA RAJA

body2010
Judgment : (Judgment of the Court was made by D. Murugesan, J.) 1. All the four contempt petitions have been filed on similar set of facts. For the convenience, we refer to averments made in Contempt Petition No: 84 of 2009 filed by Mr. R.Srinivasan alleging dis-obedience of the order made by this Court in Writ Appeal No: 844 of 2007 dated 05.11.2008. The petitioner was employed in M/s. Best & Crompton Engineering Ltd. and his service was terminated by an order dated 14.02.2002. He raised an industrial dispute questioning the order of termination. By an award, the Labour Court allowed the industrial dispute and ordered reinstatement in service with full backwages, continuity of service and other attendant benefits. The said award came to be questioned in W.P. No: 11204 of 2006. By an order dated 21.09.2006, a learned single Judge of this Court directed 50% of the backwages to be paid as a condition for grant of stay. That amount was paid to the petitioner. On the ground that the above relief was granted under Section 17(B) of the Industrial Disputes Act, the petitioner had preferred an appeal in Writ Appeal No: 844 of 2007 and by an order dated 05.11.2008, the appeal was disposed of with the following directions : " 10. In that view of the matter, we direct the first respondent management to offer employment to the appellants in W.A. Nos: 844, 845 and 1399 of 2007 at their engineering factory at Ambattur within a period of two weeks from the date of receipt of a copy of this judgment. As far as the appellants in W.A. Nos: 1438 and 1439 of 2007 and W.A. No: 133 of 2008 are concerned, the first respondent management is directed to pay a sum of Rs. 50,000/- (Rupees fifty thousand only) each within a period of three weeks from the date of receipt of a copy of this judgment. It is needless to mention that on employment being offered to the appellants in W.A. Nos: 844, 845 and 1399 of 2007, their wages should be paid on par with similarly placed employees, who are being paid as on the date of such employment. " The grievance of the petitioners is that pursuant to the above order, the respondent / management issued the letter dated 01.12.2008, asking the petitioner to report for duty on 04.12.2008. " The grievance of the petitioners is that pursuant to the above order, the respondent / management issued the letter dated 01.12.2008, asking the petitioner to report for duty on 04.12.2008. Accordingly, the petitioner reported to duty on the said date. After that, he was asked to report to duty on 10.12.2008 on which date he reported for duty. He was appointed as CL4 Grade. However, he was not assigned any work and he was made to sit at a seat allotted to him without any job. His employment was treated as fresh employment and not with any continuity of service and his salary was also fixed at Rs.4,250/-whereas similarly placed persons, particularly, one U.Singaravelan is paid a sum of Rs.30,000/-. Hence, the petitioner alleges that the order dated 05.11.2008 has been wilfully disobeyed so far as the other petitioner as well, except the petitioner in Contempt Petition No: 86 of 2009 – K.U. Suresh Kumar, who has been treated as CL3 Grade employee and has been fixed at Rs.7,478/- whereas similarly placed persons are paid higher wages. 2. Mr. V. Prakash, learned Senior Counsel appearing for the petitioners would submit that by the order dated 05.11.2008 of this Court, the respondent management was directed to pay salary to the petitioners on par with the salary paid to similarly placed employees and when similarly placed employees are paid more salary and the petitioners are paid lesser salary, obviously the order of this Court had been violated. In this context, he would also take us though the various particulars furnished in the typed set of papers. 3. Before we consider the submission of Mr.V.Prakash, learned Senior counsel, we would like to refer to the following few facts :- There is no dispute that these petitioners had obtained common award in their favour for reinstatement with backwages and continuity of service from the Labour Court. That award is under challenge in the writ petitions which are pending and hence, we are refraining from expressing any opinion on the controversy relating to the termination and the consequential award that was passed. Nevertheless, for the purpose of disposal of these contempt petitions, we may point out that when the writ petitions are pending, this Court had granted interim order of stay of the award on condition that the respondent shall deposit 50% of the backwages. That order granting stay had become final. Nevertheless, for the purpose of disposal of these contempt petitions, we may point out that when the writ petitions are pending, this Court had granted interim order of stay of the award on condition that the respondent shall deposit 50% of the backwages. That order granting stay had become final. On the ground that the said sum of 50% of the backwages would be in respect of the wages to be paid to the petitioners under Section 17 (B) of the Industrial Disputes Act, the petitioners have approached this Court by filing writ appeals and in those writ appeals, this Court had directed the respondents to pay a sum of Rs.50,000/- to each of the writ petitioners within a period of three weeks from the date of receipt of a copy of this order and that amount has also been paid. In addition to the above, this Court also directed that the petitioners herein should be paid the wages on par with similarly placed employees. The direction for payment of Rs.50,000/-had been complied with. The grievance is that the petitioners are not paid wages on par with similarly placed employees. 4. Therefore the question now is whether there are any similarly placed person or persons employed in the factory in the same grade and if so, their respective salary and whether they are getting the same salary as that of the petitioners ? 5. Mr. V. Prakash, learned Senior counsel would submit that inasmuch as this Court had directed the respondents to pay the petitioners the wages on par with similarly placed employees, the respondents have paid lesser wages. He has also placed reliance on some of the employees in CL3 Grade and CL4 Grade. Hence, the respondents have wilfully disobeyed the orders of this Court. 6. Mr. K.V. Ananthakrishnan, learned counsel appearing for the respondent, by placing reliance on the counter affidavit, would submit that the company in question had to stop all its manufacturing activities due to financial crisis and therefore, all the employees were retrenched. There were number of cases filed by the employees questioning the order of termination and most of the employees had settled except few who approached the Labour Court. Petitioners are some of the employees who had gone to the Labour Court. There were number of cases filed by the employees questioning the order of termination and most of the employees had settled except few who approached the Labour Court. Petitioners are some of the employees who had gone to the Labour Court. Thereafter, fresh recruitment was made when the financial condition stabilised and, therefore, no similarly placed employees were employed in the cadre of the petitioners. In the absence of similarly placed employees working in the respondent management, the petitioners cannot now allege that the order of this Court is violated. 7. We have carefully considered the submissions. From the facts and circumstances narrated above, we could see that this Court had directed the respondent to pay the wages to the petitioners on par with the similarly placed persons. The issue whether any similarly placed persons are working or not was not put before this Court for consideration. Ofcourse, the petitioners are entitled to wages on par with the wages paid to similarly placed persons. Nevertheless, the question is whether the employees who are similarly placed have been working or not would depend upon the facts. There are rival contentions regarding the said issue. When it is the specific case of the petitioners that there are similarly placed persons who are paid higher wages, it is the specific stand of the respondents that there are no such similarly placed persons in the cadre of CL3 and CL4. In matters like this, the law on the power of this Court to punish may be considered. 8. In this context, we may refer to the judgment of the Supreme Court relating to the powers of this Court to punish the contemnors reported in 2008 (7) Scale 484 [Sushila Raje Holkar vs. Anil Kak]. The Apex Court, had observed in paragraphs 13, 14 and 17 that, " 14. A proceeding under the Contempt of Courts Act has a serious consequence. Whether the alleged contemnor has wilfully committed breach of the order passed by a competent Court of law or not having regard to the civil/evil consequences ensuring therefor require strict scrutiny. For the said purpose, it may be permissible to read the order of the Court in its entirety. The effect and purport of the order should be taken into consideration. Whereas the Court shall always zealously enforce its order but a mere technicality should not be a ground to punish the contemnor. For the said purpose, it may be permissible to read the order of the Court in its entirety. The effect and purport of the order should be taken into consideration. Whereas the Court shall always zealously enforce its order but a mere technicality should not be a ground to punish the contemnor. A proceeding for contempt should be initiated with utmost reservation. It should be exercised with due care and caution. The power of the Court in imposing punishment for contempt of Court is not an uncontrolled or unlimited power. It is a controlled power and restrictive in nature ( See Re : P.C. Sen Manu/SC/0298/1968, AIR 1970 SC 1831, 1970 Cri.L.J. 1525, [1969] 2 SCR 649 and Jhareswar Prasad Paul and another v. Tarak Nath Ganguly and others MANU/SC/0450/2002}, AIR 2002 SC 2215 , 2002 (2) ALD (Cri) 100, 2002 (4) ALD 64 (SC), 2002 (2) ALT (Cri) 122, 2002 Cri.LJ 2935, 2002 (2) Crimes 430 (SC), JT 2002 (Suppl.) SC 290, 2002 (4) SCALE 546 , 2002 (5) SCC 352 , [2002] 3 SCR 013, 2002 (2) UJ926 ( SC ) }. A contemnor, thus, may be punished only when a clear case for contumacious conduct has been made out." We may also refer to yet another judgment of the Supreme Court reported in A.I.R. 2001 (SC) 1293 (1) - [ Mrityunjoy Das and another vs. Sayed Hasibur Rahaman and others ]. Paragraphs 14, 16 and 17 of the judgments is as under : " 14. The other aspect of the matter ought also to be noticed at this juncture viz. The burden and standard of proof. The common english phrase " he who asserts must prove" has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the standard of proof, be it noted that a proceeding under the extraordinary jurisdiction of the Court in terms of the provisions of the Contempt of Courts Act is quasi criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond reasonable doubt. The observations of Lord Denning in Re Bramblevale, (1969) 3 All ER 1062, lend support to the aforesaid. Lord Denning in Re.Bramblevale stated : "A contempt of Court is an offence of a criminal character. The observations of Lord Denning in Re Bramblevale, (1969) 3 All ER 1062, lend support to the aforesaid. Lord Denning in Re.Bramblevale stated : "A contempt of Court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond all reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence. .... ..... ...... Where there are two equally consistent possibilities open to the Court, it is not right to hold that the offence is proved beyond all reasonable doubt. " 16. In Aligarh Municipal Board vs. Ekka Tonga Mazdoor Union, (1970) 3 SCC 98 : (AIR) 1970 SC 1767 : 1970 Cri. L.J. 1520, this Court in no uncertain term stated that in order to bring home a charge of contempt of Court for disobeying orders of Courts, those who assert that the alleged contemners had knowledge of the order must prove this fact beyond reasonable doubt. This Court went on to observe that in case of doubt, the benefit ought to go to the person charged. 17. In a similar vein in V.G. Nigam vs. Kedar Nath Gupta (1992) 4 SCC 697 : 1992 AIR SCW 2529 : AIR 1992 SC 2153 : 1992 Cri. LJ 3576, this Court stated that it would be rather hazardous to impose sentence for contempt on the authorities in exercise of contempt jurisdiction on mere probabilities. " A survey of the above judgments would show that for imposing any punishment for contempt of Court, there must be a wilful disobedience and in case there is a casual or accidental or bona fide or unintentional acts or genuine inability to comply with the terms of the order, the Court would not punish the respondent. 9. On the one hand, the petitioners claim that they are all paid lesser salary than similarly placed persons, even though they are engaged as CL4 or CL3 employees. 9. On the one hand, the petitioners claim that they are all paid lesser salary than similarly placed persons, even though they are engaged as CL4 or CL3 employees. On the other hand, it is the case of the respondent management that there were no similarly placed persons so as to enable the respondent to consider and pay wages to each of the petitioner higher than similarly placed employees. This being a factual controversy and from the records which are produced before us, we could not see that any similarly placed persons are employed, we find no wilful disobedience of the direction of this Court in the matter of payment of wages. Excepting the above factual aspects, we are not inclined to go deep into the entire issue on the facts of this case. Therefore, without expressing any opinion on the right of the employees / workers to claim higher wages on the ground that similarly placed workers are being paid higher wages, we dismiss all the contempt petitions as devoid of merits. The observations made in this order are only to dispose of these contempt petitions and cannot be construed that the controversy is decided. Registry is directed to put up all the writ petitions for hearing before the concerned Bench.