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Himachal Pradesh High Court · body

2023 DIGILAW 222 (HP)

Puja v. Vikas Negi

2023-04-19

SATYEN VAIDYA

body2023
JUDGMENT : Satyen Vaidya, J. By way of instant petition, the petitioner has approached this Court for initiating proceedings, against respondents, under the Contempt of Courts Act with the allegation that they have willfully and deliberately disobeyed the judgment/order dated 26.02.2022 passed by this Court in LPA No. 258 of 2012, titled as State Bank of India and another vs. Puja. 2. Brief facts necessary for adjudication of the petition can be summed up as under : (i) The petitioner worked as sweeper in New Shimla branch of State Bank of India (for short, ‘the bank’) from 6.9.2000 to 29.7.2005, on payment of Rs. 50 per day. She was not allowed by the bank to work with effect from 29.7.2005. Petitioner had raised an industrial dispute under the Industrial Disputes Act, 1947 (for short, ‘the Act’) against the bank alleging inter-alia termination of her services to be in violation of Section 25-F of the Act with further prayer to reinstate her in service with all consequential benefits. (ii) Appropriate authority on 22.01.2007 had referred the dispute raised by petitioner to Central Government–cum-Labour Court, Chandigarh (for short, ‘the Tribunal’) under Section 10 of the Act in following terms: “Whether the action of the management of State Bank of India, Shimla in terminating the services of Smt. Pooja, Part Time Sweeper w.e.f. 29.7.2005 is illegal and unjustified? If so, to what relief the concerned workman is entitled to and from which date?” (iii) Learned Tribunal held the termination of petitioner to be bad in law on the grounds that no prior notice or one month’s pay in lieu of notice and retrenchment compensation was paid to her by the bank before terminating her services. It was also held that the petitioner had served for five years and the refusal on part of the Bank to abruptly bring to an end her services was violative of principles of natural justice and provisions of the Act. Learned Tribunal answered the reference in favour of petitioner and granted relief in following terms: “Wherever, termination of any workman is declared illegal and void on account of being against the provisions of the I.D.Act, 1947, there are two options to remedied the violation of rights of workman. The first option is reinstatement of the workman on the same post from which she was terminated and another is reasonable compensation. The first option is reinstatement of the workman on the same post from which she was terminated and another is reasonable compensation. It is settled principle of service jurisprudence that the order of reinstatement should not be casual but priority should be given for reinstatement of the workman. If the conduct of the management in this reference is to be seen, it is apparently clear that management refused to have any relation with the workman and to prove its wrong and illegal contention, the management has tried to take the benefits of the cheques which were given to the workman through a contractor. The workman has served for more than five years and I am of the view that reinstatement of the workman on the position she was working immediately prior to her termination is the only appropriate remedy. Accordingly, the management is directed to reinstate the workman with all consequential benefits within one month from the date of publication of the workman. Central Government be approached for publication of the award, and thereafter, file be consigned to record room.” (iv) The Bank assailed the award passed by learned Tribunal before this Court by way of CWP No. 663 of 2011, which came to be decided by learned Single Judge of this Court vide judgment dated 29.3.2012. Learned Single Judge upheld the award passed by learned Tribunal in the following terms: “10. It is thus evident that the workman was working with the management. She was being paid Rs.50/- per day by the management from petty cash. Thus, it is established that there was master servant relationship between the workman and management. She was paid Rs.700/- separately by the contractor for operating generator. The management has not disputed before the learned trial Court that she has completed 240 days as observed by the learned Presiding Officer. MW-1 Mr. P.C. Heer, as noticed above, has admitted that the workman was neither issued any notice nor paid any compensation. Since the workman had completed 240 days, her services could not be terminated without complying with the mandatory provisions of Section 25 of the Industrial Disputes Act, 1947. 11. Consequently, there is no illegality or perversity in the award. The same is reasoned and based on correct appreciation of oral as well as documentary evidence. This Court will not interfere with the award. 12. 11. Consequently, there is no illegality or perversity in the award. The same is reasoned and based on correct appreciation of oral as well as documentary evidence. This Court will not interfere with the award. 12. Accordingly, in view of the observations and analysis made hereinabove, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.” (v) Noticeably, the continuation of service of petitioner with the Bank was protected by the interim orders dated 23.2.2011 and 3.6.2011 passed in CWP No. 663 of 2011. (vi) The Bank assailed the judgment dated 29.3.2012 passed by learned Single Judge in CWP No. 663 of 2011 by preferring Letters Patent Appeal No.258 of 2012, which came to be decided by a Division Bench of this Court (in which I was one of the Members) vide judgment dated 26.2.2022, judgment passed by learned Single Judge of this Court in CWP No. 663 of 2011 as also the award passed by learned Tribunal were affirmed while dismissing the Letters Patent Appeal of the Bank. (vii) The judgment passed by Division Bench of this Court in LPA No. 258 of 2012 attained finality as the Bank did not assail it further. On 3.6.2022, the Bank showed the compliance to the award passed by learned Tribunal as affirmed by this Court and issued a communication to the petitioner in following terms: “In compliance with the final judgment of Hon’ble High Court of Himachal Pradesh in above case, we would like to inform you that your services, as per order of CGIT, Chandigarh dated 07.09.2010, has been reinstated status quo.” (viii) On 26.8.2022, the Bank again terminated the services of petitioner by offering her one month’s salary and retrenchment compensation under Section 25-F of the Act on the ground that the Bank had already outsourced housekeeping and maintenance services and, therefore, the services of petitioner were not required and could not be continued. 3. According to petitioner, the issuance of letter dated 26.8.2022 by the Bank to petitioner is contemptuous being in violation of the award dated 7.9.2010 passed by learned Tribunal and further affirmed by this Court in LPA No. 258 of 2012. It is alleged that the respondents have intentionally and deliberately violated the judgment passed by this Court. 3. According to petitioner, the issuance of letter dated 26.8.2022 by the Bank to petitioner is contemptuous being in violation of the award dated 7.9.2010 passed by learned Tribunal and further affirmed by this Court in LPA No. 258 of 2012. It is alleged that the respondents have intentionally and deliberately violated the judgment passed by this Court. It has been contended on behalf of the petitioner that the plea raised regarding outsourcing of housekeeping and maintenance services as reason for retrenchment of petitioner is not available to the Bank at this stage as no such plea was raised by the Bank either before the Tribunal or this Court. During the entire litigation, the Bank had sought to defeat the claim of the petitioner on the ground that she was not the employee of the Bank and was an outsourced employee of a contractor employed by the Bank. 4. Per contra, the respondents have contested the claim of the petitioner on the grounds that firstly, no case for contempt is made against the respondents as they have not violated any order/judgment passed by this Court. Vide award dated 7.9.2010 passed by learned Tribunal as affirmed by this Court, the rights of petitioner, arising out of her previous retrenchment in the year 2005, were adjudicated and there was no caveat/injunction upon the Bank to not to retrench the petitioner in future in accordance with law and secondly, the Bank has genuine inability to continue the service of petitioner for the reason that the Bank had since long back outsourced its housekeeping and maintenance services to different contractors. 5. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 6. Before adverting to the facts and issue involved herein, it is necessary to be reminded of the duty cast upon this Court while exercising the contempt jurisdiction and reference can be made to the following dictum in Sudhir Vasudeva, Chairman and Managing Director, Oil and Natural Gas Corporation Limited and others versus M. George Ravishekaran and others reported in (2014) 3 SCC 373 : “19. The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt. The very nature of the power casts a sacred duty in the Courts to exercise the same with the greatest of care and caution. This is also necessary as, more often than not, adjudication of a contempt plea involves a process of self-determination of the sweep, meaning and effect of the order in respect of which disobedience is alleged. Courts must not, therefore, travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are explicit in a judgment or order or are plainly self-evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or willful violation of the same. Decided issues cannot be reopened; nor the plea of equities can be considered. Courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon. No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above. The above principles would appear to be the cumulative outcome of the precedents cited at the bar, namely, Jhareswar Prasad Paul and Another vs. Tarak Nath Ganguly and others (2002) 5 SCC 352 , V.M.Manohar Prasad vs. N. Ratnam Raju and Another (2004) 13 SCC 610 , Bihar Finance Service House Construction Cooperative Society Ltd. vs. Gautam Goswami and Others (2008) 5 SCC 339 and Union of India and Others vs. Subedar Devassy PV (2006) 1 SCC 613 ”. 7. 7. Now, adverting to the facts of the case, the crux of submissions made on behalf of the petitioner is that the respondents by retrenching the petitioner w.e.f. 26.8.2022 have willfully overreached the judgment secured by petitioner in her favour, whereby the award passed by learned Tribunal directing her reinstatement with all consequential benefits was affirmed by this Court. The aforesaid action of the respondents has been alleged to be in clear violation of the judgment passed by this Court in LPA No. 258 of 2012. As per the petitioner, her retrenchment by way of communication dated 26.8.2022 is only to undo the effects of the judgment passed by this Court in her favour. 8. As noticed above, the petitioner was earlier retrenched in the year 2005. She raised an industrial dispute and a reference was made by the appropriate Government to the learned Tribunal. The reference was to adjudicate on the legality of the termination of services of petitioner w.e.f. 29.7.2005 and in case the termination was found to be illegal, to ascertain the extent of relief to be granted to the petitioner. 9. Petitioner secured the verdict in her favour and learned Tribunal after answering the reference in favour of the petitioner directed the Bank to reinstate the services of the petitioner with all consequential benefits. This award was ultimately affirmed firstly by learned Single Judge and thereafter by a Division Bench of this Court. Thus, the entire earlier adjudication was on the legality of the retrenchment of the petitioner effected by the Bank w.e.f. 29.7.2005. 10. Retrenchment is defined in Section 2 (oo) of the Act as under: “retrenchment” means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include – (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or (c) termination of the service of a workman on the ground of continued ill-health.” 11. Section 25-F of the Act, provides for conditions precedent to retrenchment of workmen as under : “25-F. Conditions precedent to retrenchment of workmen.- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until- (a) the workman has been given one month’s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days’ average pay (for every completed year of continuous service) or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government (or such authority as may be specified by the appropriate Government by notification in the Official Gazette).” 12. Thus, there is no mandate of law that a workman cannot be retrenched. The only caveat is as prescribed under Section 25-F of the Act. It also cannot be said that a workman having once secured his/her reinstatement by getting the retrenchment set-aside on account of violation of Section 25-F of the Act, the employer cannot subsequently retrench the workman after complying with the provisions as per law. 13. In the facts of instant case, there was no direction from this Court to the Bank to continue the employment of petitioner till a particular period or not to retrench her in future. Even by implication such inference cannot be drawn from the judgment of this Court. It being so, the contention raised on behalf of the petitioner cannot be countenanced. The respondents cannot be held to have violated any judgment/order or direction of this Court. 14. Another contention, raised on behalf of the petitioner that the grounds assigned vide communication dated 26.8.2022 for retrenchment of petitioner itself suggest the will and intent of respondents to undo the effects of judgment passed by this Court, also requires rejection. Petitioner has now been retrenched for the reason that the bank has outsourced housekeeping and maintenance services since long and in such view of the matter the services of petitioner were not required in New Shimla Branch of the Bank. Petitioner has now been retrenched for the reason that the bank has outsourced housekeeping and maintenance services since long and in such view of the matter the services of petitioner were not required in New Shimla Branch of the Bank. The legality of the retrenchment order dated 26.8.2022 issued by the Bank cannot be tested in these proceedings. On a pointed query to learned counsel for the petitioner, it was informed that the petitioner has not undertaken any legal remedy against her alleged illegal retrenchment. Noticeably, even in the earlier litigation, the Bank had denied relationship of employer and employee with the petitioner. It was the case of the bank, though held otherwise, that petitioner was an employee of the contractor to whom the Bank had awarded certain works. 15. In view of above discussion, it cannot be said that respondents have willfully and intentionally violated any judgment, order or direction of this Court. In result, the petition fails and the same is dismissed. Petition is accordingly disposed of so also pending miscellaneous applications, if any.