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2019 DIGILAW 944 (BOM)

Prof Sudhir v. Aniket College Of Social Work

2019-04-04

ROHIT B.DEO

body2019
JUDGMENT Rohit B. Deo, J. -Heard Shri I.G. Meshram, the learned counsel for the petitioner. 2. The order of which contempt is alleged is order dated 29.8.2018 passed by the Assistant Commissioner, Social Welfare Department, Wardha directing the respondent Aniket College of Social Work to release the increments of which petitioner-who is an Assistant Professor employed with the said institution. 3. Shri I.G. Meshram, the learned counsel for the petitioner was called upon to satisfy this Court that the Assistant Commissioner, Social Welfare is a Court for the purpose of Contempts of Courts Act, 1971 ("Act" for short). Shri I.G. Meshram relies on the decisions of the Hon''ble Apex Court in The Bharat Bank, Ltd. Delhi v. The Employees of the Bharat Bank, Ltd. Delhi and the Bharat Bank Employee s Union, Delhi, (1950) AIR SC 188 and High Court of Judicature at Allahabad through its Registrar v. Raj Kishore and Ors., (1997) AIR SC 1186 to buttress the submission that the said authority is a Court for the purpose of the Act. 4. Few basic facts may be noted. The petitioner was terminated by the employer by order dated 20.11.2014. The termination was assailed in Appeal 9 of 2014 before the Universities and College Tribunal, Nagpur under the provisions of the Maharashtra Universities Act, 1994. The tribunal quashed and set aside the termination order dated 20.11.2014 and directed that the petitioner be reinstated in service with 50% back wages. The petitioner contends that since the said order was not implemented, he preferred Miscellaneous Application 26 of 2015 which is decided by the tribunal by order dated 26.2.2017. The order of the tribunal reads thus: "This is an application under Section 63 of the Maharashtra Universities Act, 1994. The applicant/appellant was directed to be reinstated in the service and it was also directed that the appellant should be paid 50% of the back wages. The non-applicants/respondents have from time to time paid Rs. 3,85,426/-. The respondents therefore, want that the application under Section 63 should now be disposed of. The appellant contends that the respondents have not taken into account the increment that has fallen due and therefore, there is difference of Rs. 10,000/-. The question as to whe-ther there is difference of Rs. 10,000/- due to the increment is left open. The amount as claimed in this application has been paid and therefore, the application stands disposed of. The appellant contends that the respondents have not taken into account the increment that has fallen due and therefore, there is difference of Rs. 10,000/-. The question as to whe-ther there is difference of Rs. 10,000/- due to the increment is left open. The amount as claimed in this application has been paid and therefore, the application stands disposed of. The appellant may separately agitate for the balance of Rs. 10,000/- in respect of the increment, if entitled." 5. The petitioner contends that though he was reinstated, while fixing the pay, the benefit of increments was not given and several representations addressed to the employer evoked no response. The petitioner, therefore, approached the Assistant Commissioner, Social Welfare who directed the employer to release the increments. As observed supra, it is this order of the Assistant Commissioner, Social Welfare of which contempt is alleged. 6. Shri I.G. Meshram, the learned counsel has placed on record Government Resolution dated 21.3.2018 which purports to put in place a grievance redressal mechanism for the employees of V.J.N.T. Ashram Shala, Residential Schools, Vidya Niketans and Ashram Shalas for the children of workers of sugarcane industry. The Assistant Commissioner, Social Welfare or Assistant Director V.J.N.T./Social Welfare Officer is declared to be the competent authority to deal with the grievances of employees of the institutions covered by the said Government Resolution. 7. It is averred in the Contempt Petition that the respondent institution receives 100% grant-in-aid from the Social Welfare Department and imparts education in social work. It is extremely doubtful whether the respondent institution is covered by the Government Resolution which is placed on record. The Government Resolution ex facie is restricted to the grievances of employees of Ashram Shalas and does not take within its sweep an institution engaged in imparting education in social work. 8. Assuming, arguendo, that the petitioner employee could have availed the redressal mechanism under the said Government Resolution, this Court is satisfied that the Assistant Commissioner of Social Welfare is not a Court for the purpose of the Act. 9. Irrefutably, the Assistant Commissioner, Social Welfare, who is described as the competent authority, is not a statutory authority. It is extremely doubtful whether a quasi-judicial authority can be constituted in exercise of executive power. That apart, before an authority can be considered as Court certain well recognized tests must be satisfied which are not satisfied. 9. Irrefutably, the Assistant Commissioner, Social Welfare, who is described as the competent authority, is not a statutory authority. It is extremely doubtful whether a quasi-judicial authority can be constituted in exercise of executive power. That apart, before an authority can be considered as Court certain well recognized tests must be satisfied which are not satisfied. The power entrusted to the authority must be the judicial power of the State which necessarily implies that the authority must be empowered to adjudicate upon the disputes. The source of the power must emanate from the statute. The authority must have the trappings of Court. 10. The decision in The Bharat Bank, Ltd. Delhi v. The Employees of the Bharat Bank, Ltd. Delhi and the Bharat Bank Employee''s Union, Delhi, which is pressed in service by Shri I.G. Meshram may now be noted. The issue which fell for consideration was the nature of the functions and duties of the Industrial Tribunal. His Lordship Chief Justice M.H. Kania considered the issue thus: "[2] In my opinion, the functions and duties of the Industrial Tribunal are very much like those of a body discharging judicial functions, although it is not a Court. The rules framed by the Tribunal require evidence to be taken and witnesses to be examined, cross-examined and reexamined. The Act constituting the Tribunal imposes penalties for incorrect statements made before the Tribunal. While the powers of the Industrial Tribunal in some respects are different from those of an ordinary civil Court and it has jurisdiction and powers to give reliefs which a civil Court administering the law of the land (for instance, ordering the reinstatement of a workman) does not possess in the discharge of its duties it is essentially working as a judicial body. The fact that its determination has to be followed by an order of the Government which makes the award binding, or that in cases where Government is a party the legislature is permitted to revise the decision, or that the Government is empowered to fix the period of the operation of the award do not, to my mind, alter the nature and character of the functions of the Tribunal. Having considered all the provisions of the Act it seems to me clear that the Tribunal is discharging functions very near those of a Court, although it is not a Court in the technical sense of the word." Justice S. Murtaza Fazal Ali observes that there can be no doubt that the Industrial Tribunal has all the trappings of a Court and performs functions which can not but be regarded as judicial. His Lordship articulates thus: "[7] Now there can be no doubt that the Industrial Tribunal has, to use a well known expression, "all the trappings of a Court" and performs functions which cannot but be regarded as judicial. This is evident from the rules by which the proceedings before the Tribunal are regulated. It appears that the proceeding before it commences on an application which in many respects is in the nature of a plaint. It has the same powers as are vested in a civil Court under the Code of Civil Procedure when trying a suit, in respect of discovery, inspection, granting adjournment, reception of evidence taken on affidavit, enforcing the attendance of witnesses, compelling the production of documents, issuing commissions, etc. It is to be deemed to be a civil Court within the meaning of sections 480 and 482, Criminal P.C., 1898. It may admit and call for evidence at any stage of the proceeding and has the power to administer oaths. The parties appearing before it have the right of examination, cross-examination and reexamination and of addressing it after all evidence has been called. A party may also be represented by a. legal practitioner with its permission." Justice Mehr Chand Mahajan observes that it was conceded that a tribunal constituted under the Industrial Disputes Act, 1947 exercises quasi-judicial power. His Lordship considers the nature of the quasi-judicial power exercised by the Industrial Tribunal thus: "[27] It is difficult to conceive in view of these provisions that the Industrial Tribunal performs any functions other than that of a judicial nature. The tribunal has certainly the first three requisites and characteristics of a Court as defined above. It has certainly a considerable element of the fourth also inasmuch as the tribunal cannot take any administrative action, the character of which is determined by its own choice. It has to make the adjudication in accordance with the provisions of the Act as laid down in S.7. It has certainly a considerable element of the fourth also inasmuch as the tribunal cannot take any administrative action, the character of which is determined by its own choice. It has to make the adjudication in accordance with the provisions of the Act as laid down in S.7. It consists of persons who are qualified to be or have been judges. It is its duty to adjudicate on a serious dispute between employers and employees as affecting their right of freedom of contract and it can impose liabilities of a pecuniary nature and disobedience of its award is made punishable. The powers exercisable by a tribunal of this nature were considered in a judgment of the Federal Court of India in Western India Automobile Association v. Industrial Tribunal, Bombay,1949 FCR 821 and it was observed that such a tribunal can do what no Court can, namely, add to or alter the terms or conditions of the contract of service. The tribunal having been entrusted with the duty of adjudicating a dispute of a peculiar character, it is for this reason that it is armed with extraordinary powers. These powers, however, are derived from the statute. These are the rules of the game and it has to decide according to these rules. The powers conferred have the sanction of law behind it and are not exercisable by reason of any discretion vested in the members of the tribunal. The adjudication of the dispute has to be in accordance with evidence legally adduced and the parties have a right to be heard and being represented by a legal practitioner. Right to examine and cross-examine witnesses has been given to the parties and finally they can address the tribunal when evidence is closed. The whole procedure adopted by the Act and the rules is modelled on the Code of Civil Procedure. In my opinion, therefore, the Industrial Tribunal has all the necessary attributes of a Court of justice. It has no other function except that of adjudicating on a dispute. It is no doubt true that by reason of the nature of the dispute that they have to adjudicate the law gives them wider powers than are possessed by ordinary Courts of law, but powers of such a nature do not affect the question that they are exercising judicial power. It is no doubt true that by reason of the nature of the dispute that they have to adjudicate the law gives them wider powers than are possessed by ordinary Courts of law, but powers of such a nature do not affect the question that they are exercising judicial power. Statutes like the Relief of Indebtedness Act, or the Encumbered Estates Act have conferred powers on Courts which are not ordinarily known to law and which affect contractual rights. That circumstance does not make them anything else but tribunals exercising judicial power of the State, though in a degree. different from the ordinary Courts and to an extent which is also different from that enjoyed by an ordinary Court of law. They may rightly be described as quasi-judicial bodies because they are out of the hierarchy of the ordinary judicial system but that circumstance cannot affect the question of their being within the ambit of Art. 136." "[28] It may also be observed that the tribunal is deemed to be a civil Court for certain purposes as laid down in R. 21 of the rules above cited and in S. 11(3) of the Act. As a civil Court if it exercises any of the powers contemplated by this section its decisions would become subject to appeal to a District Judge and a fortiori this Court''s power under Art. 136 would at once be attracted in any case in respect of these matters. Again, in Chap. VI of the Act breach of the terms of an award has been made punishable by S.29 of the Act. The result therefore, is that disobedience of the terms of an award is punishable under the Act. That being so, a determination of the tribunal not only affects the freedom of contract and imposes pecuniary liability on the employer or confers pecuniary benefits on the employees, but it also involves serious consequences as failure to observe those terms makes a person liable to the penalties laid down in Chap VI. An award which has these serious consequences can hardly be said to have been given by a tribunal which does not exercise some of the most important judicial functions of the State." The nature of the functions and powers of the Industrial Tribunal fell for consideration in the context of the submission that the decisions of the Industrial Tribunal are not amenable to judicial review. 11. The decision in High Court of High Court of Judicature at Allahabad through its Registrar v. Raj Kishore and Ors takes the case of the petitioner no further. Shri I.G. Meshram, the learned counsel relies on the said decision to canvas that power under Article 215 is available since this Court is a Court of record. As a Court of record, this Court has the power to punish for contempt of itself. The said decision has no bearing on the issue involved. 12. In Virindar Kumar Satyawadi v. The State of Punjab, (1956) AIR SC 153 the distinction between a Court and quasi-judicial tribunal is explained thus: "(6) There has been considerable discussion in the Courts in England and Australia as to what are the essential characteristics of a Court as distinguished from a tribunal exercising quasi-judicial functions. Vide 1931 AC 275 (A) R. v. London Country Council, (1931) 2 KB 215 (B) Cooper v. Wilson, (1937) 2 KB 309 ; (C); Huddart Parker and Co. v. Moorehead,1909 8 CLR 330 (D) and Rola Co. v. The Commonwealth,1944 69 CLR 185 (E). In this Court, the question was considered in some fulness in Bharat Bank Ltd. v. Employees of Bharat Bank Ltd., (1950) AIR SC 188 (F). It is unnecessary to traverse the same ground once again. In may be stated broadly that what distinguishes a Court from a quasi-judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi-judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court." 13. When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi-judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court." 13. In Brijnandan Sinha v. Jyoti Narain, (1956) AIR SC 66 , the question which fell for consideration was whether the Commissioner appointed under the Act 37 of 1850 is a Court for the purpose of Contempt of Courts Act. The Hon''ble Supreme Court held that the Commissioner is not a Court within the meaning of the Contempt of Courts Act. It would be apposite to refer to the following observations in the said decision: "18. It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement." Considering the submission that the word "Court" should be construed in a wide sense, the Hon''ble Supreme Court referred to the following passage in Halsbury''s Laws of England, Hailsham Edition, Volume 8, page 526: "Many bodies are not courts, although they have to decide questions and in so doing have to act judicially, in the sense that the proceedings must be conducted with fairness and impartiality, such as assessment committees, guardians committees, the Court of referees constituted under the Unemployment Insurance Act to decide claims made on the insurance funds, the benchers of the Inns of Court when considering the conduct of one of their members, the General Medical Council, when considering questions affecting the position of a medical man." The Hon''ble Supreme Court then analyzed the provisions of the Public Servants (Inquiries) Act, 37 of 1850 and noted that findings of the said authority lacked both finality and authoritativeness which are essential tests of a judicial pronouncement. The Hon''ble Supreme Court concludes thus: "30. We are of the opinion that neither of these cases which have been relied upon by Shri Purushottam Tricamdas is of any help to the respondent or detracts from the true position as we have laid down above. The Hon''ble Supreme Court concludes thus: "30. We are of the opinion that neither of these cases which have been relied upon by Shri Purushottam Tricamdas is of any help to the respondent or detracts from the true position as we have laid down above. The only conclusion to which we can come on a consideration of all the relevant provisions of the Act is that the Commissioner appointed under the Act is not a Court within the meaning of the Contempt of Courts Act, 1952." 14. It is already observed supra that Government Resolution does not purport to cover the employees of the respondent-institution, who have a statutory remedy which is the tribunal constituted under the provisions of Maharashtra Universities Act, which remedy indeed the petitioner employee availed in challenging the termination order. The Government Resolution refers to the officer as quasi-judicial authority. However, it would be impermissible to confer quasi-judicial much less judicial power in exercise of executive power. The Assistant Commissioner has no trappings of a Court. The exercise of power is not traceable to statute. The power administratively entrusted is not the judicial power of the State. The essential tributes of the Court which would necessarily include the right of the contesting parties to represent their case, ascertainment by the authority of the disputed questions on the touchstone of evidence adduced by the parties to the dispute, the power of the authority to enforce attendance of witnesses, production of documents and power akin thereto and a binding adjudication concluding the lis are absent. 15. This Court has no hesitation in holding that the Assistant Commissioner, Social Welfare is not a Court within the meaning of the Act and the petition is misconceived. The petition is dismissed with no order as to cost.