Ninga Colliery Mazdoor Union Vs Union of India and Others

Susanta Chatterji, J.@mdashThe present case has a chequered background. this Court by a comprehensive judgment dated 14.12.1988 disposed of the writ petition directing the respondent No. 1. Union of India. Department of Labour, Govt. of India to cause an appropriate enquiry by applying its mind to various factors and the grievances of the writ petitioners in the manner stated in the writ petition within six months from the date of communication of the order. It was made clear in the said judgment that this Court did not decide anything on merit as to whether the factors necessary to cause a Notification are at all present or not. The respondent No. 2. Eastern Coalfields Ltd. authority was also directed to take proper steps so that no workman engaged for doing underground work at Ningha Colliery is compelled to take up a job which is prohibited by Government in its Notification No. So-488 dated 15.12.1975. At the time of delivery of judgment, the said respondent No. 12 had clearly submitted that the said authority has got no objection if the appropriate Govt. authorities initiate appropriate proceedings and upon consideration of the materials on record prohibit employment of contract labour by way of notification in the Official Gazette. Upon perusal of Section 10 of the Contract Labour (Regulation & Abolition) Act, 1970 and looking at the petitioners cannot have any grievance against the impugned order, and the Award in question does not suffer from any irregularity and/ or illegality, but regard being had to the materials on record, the petitioners and/or the aggrieved workmen will be helpless if the appropriate Govt. authorities do not move in the manner as indicated under said Section 10 of the Act, 1970.

2. Considering all the aspects, and giving detailed reasons, this Court disponed of the writ petition by delivering the judgment aforesaid with the specific directions indicated above.

3. Admittedly, the respondent No.1 did not take effective steps to implement the judgment passed by this Court. Ultimately, an application under Article 32 of the Consititution of India was moved before the Hon''ble Supreme Court of India on behalf of the writ petitioners herein seeking certain specific reliefs and complaining that the judgment of this Court dated 14.12.1988 has not been implemented. It will appear from the materials on record that the Hon''ble Supreme Court directed that the said application can be treated as a contempt petition by this Court and the matter was referred to this Court for proceeding in accordance with law. It will further appear from the materials on record as if Supreme Court diverted that for not complying with this Court''s direction dated 14.12.1988. the application under Article 32 may be treated by this Court as a contempt petition.

4. Considering all the facts and circumstances, this Court on 29.1.1992. instead of issuing Contempt Rule drawing up contempt proceedings, took note of the allegations against the respondents No. 1 and 2, Secretary. Department of Labour, Govt. of India and the Manager, Eastern Coalfields Ltd. respectively and gave directions to enable the said two respondents to file their affidavits. It was clearly recorded in that order dated 29.1.1992 as recorded above, so that affidavits can be filed by the said respondents explaining their position. Time and again, leave was given to file affidavits and from the order dated 26.8.92 passed by this Court it will clearly appear that there was no appearance by the respondents No. 1 and 2 inspite of specific communication by the learned Advocate on their behalf and there was no compliance of Court''s order by a said respondents. Looking at the material on record and for effective adjudication, by the said order dated 26.8.1992, this Court issued Contempt Rule against the then Secretary. Ministry of Labour Govt. of India as inspite of repeated opportunities being given, the contemnor did not file affidavit, did not care to participate in the proceedings for effective adjudication of the matter in dispute.

5. Pursuant to such Contempt Rule, the contemnor appeared and filed his affidavit, on 24.11.92, but it was the then Secretary, Ministry of Labour, Govt. of India and not the previous Secretary. The Contempt Rule was taken up for hearing.

6. A lengthy argument has been advanced by Mr. P.K. Roy. learned Advocate for the writ petitioners, by Mr. S.C. Bose, learned Advocate for the Union of India and by Mr. S.P. Mitra, learned Advocate for the Eastern Coalfields Ltd.

7. It is argued with much force on behalf of the petitioners that the contemner and the respondent No. 2 have deliberately failed to comply with the judgment of this Court and appropriate orders may be made for punishment of such authorities for wilful violation of Court''s order in accordance with law. Besides, the petitioners have mainly prayed for inter alia, the judgment dated 14.12.1988 must be implemented by letter and spirit and that the further consequence of the implementation of the said judgment will be abolition of contract labour system, vis-a-vis the absorption of the employee members of the petitioner union by the employer ECL authorities. It is also brought to the notice of the Court by pointing out various irregulatities in the records produced by the respondent No. 1 contemner that a proper committee was not constituted, proper persons were not delegated, steps were not taken in accordance with law and everything was taken in haphazard manner, beyond the time, by persons not authorised under law. A report has been filed which is unwarranted and uncalled for. Further that enough time has been wasted and the respondent No. 1, contemner has not taken bona fide steps to implement the Court''s judgment aforesaid. The writ petitioners, however submitted that on proper consideration on the issue of punishment in contempt proceedings. Court should take effective steps to ask immediate regularisation and/or absorption of the employees of the union, writ petitioner by passing necessary order and by abolishing the contract labour system itself.

8. Attention of the Court has been drawn to a reported decision in AIR 1990 SO 464 (Noorali Babul Thanewala vs. Sh. K.M.M. Shetty & Osr.) that when a Court accepts an undertaking by one of the parties and passes orders based thereon, such orders amount in substance to an in junction restraining that party from action in bread) thereat Such breach, if any., in a civil proceedings is therefore regarded as tantamount to a breach of injunction although the remedies are not always, identical An undertaking as such is treated as an order and for enforcing such undertaking, if broken, would involve the same concequences on the persons breaking such undertaking as their disobedience to an order for injunction. It is settled law that breach of an injunction or of an undertaking to a Court in Civil proceedings on the faith of which Court sanctions a particular course of action is misconduct amounting to contempt, and remedy in such case may be in a direction to the contemner to purge the contempt or a sentence of imprisonment of fine or all of them. In that case, mere imposition of imprisonment or fine on a tenant giving an undertaking to a Court and committing breach thereof will not meet the ends of justice, and the tenant has to purge himself/herself of contempt by giving vacant possession immediately and issuing necessary further and consequential directions for enforcing the same. Drawing inspiration from such judgment, it has been argued on behalf of the petitioners that this Court while disposing of the contempt Rule or proceedings thereto, should pass effective order so that there may be immediate absorption of the employees and/or regularisation of employees directly under the employer.

9. Attention of Court has been drawn to a further reported decision in 1990 (1) C.L.J. 502, Hindustan Lever Sramik Karmachari Congress vs. Ashish Chakraborty and others, wherein K.M. Yusuf, J. (as His Lordship then was) held that when an order of trial court is sought to be revised by an application u/s 115 of the Code of Civil Procedure, the revisional court passes orders not altering or modifying the order of trial court challenged in revision, the trial court order neither merges nor is replaced by the adjudication of the revisional court and in the process any wilful violation of the order of the trial court amounts to contempt of court. In that case, it was found that the judgment debtor committed offence and the judgment reported to 1982 (2) CHN 213 (Samir Kumar Sarkar vs Maharaj Singh) was interpreted by observing that the decisions reported in ADR 1984 SC 1826 and Kailash Chander Sharma Vs. State of Haryana and others, were not brought to the notice of the Division Bench delivering the judgment reported in 1982(2) CHN 213(Supra) and hence the decision reported in 1982(2) CHN 213(Supra) must be deemed to be overruled impliedly. But, in fact, the ratio of the said decision does not help either the writ petitioners or the Contemner in the present case. Attention of Court has further been drawn to a reported decision in 1977(2) CIJ 391 (Hastings Mills Ltd. vs Hira Singh and others) wherein the Division Bench of this Court found that Section 2(c) of the Contempt of Courts Act has defined criminal contempt to mean doing any act which either prejudices, or interferes or tends to interfere with the due course of any judicial proceedings or interferes or tends to interfere with or obstructs or tends to obstruct the administration of justice. Further that the abusing of court''s process may mean different types of acts but generally that connotes some misuse of court''s process, the most serious being an act which is intended to deceive the court, for/by example the deliberate suppression of facts or by presentation of falsehood, but the same term also includes bringing of frivolous and vexatious proceedings, and therefore an act of misleading the court by deliberate supression of facts or by presentation of falsehood is an abuse of process of court. Inherent jurisdiction to stay or dismiss should be sparingly exercised and only in exceptional cases and further than an exceptional case has been made out for the grant of injunction and hence court granted the injunction prayed for.

10. It was submitted with much force that on merit there should be immediate abolition of contract labour system and there should be regularisation or absorption of the employees concerned. In the instant case. while the Union of India, has not implemented the judgment dated 14.12.1988 by constituting a proper committee to consider the grievance of the petitioners, it is submitted, the court can itself consider the relevant factors and instead of asking the Union of India again to implement the said judgment, can pass an effective order by directing the concerned respondents including the management of the E.C.L. to take effective steps for absorption and/or regularisation of the employees.

11. Mr. Bose, learned Advocate for the contemner sole, has caused prodution of the records before the court. With his wisdom, he has sub-milted that steps were taken although a little late, to implement the said judgement dated 14. 12. 1988 by asking a Committee to go into the matter and to file a report. He has gone a step further that if this Court is of the view that the Committee was not properly constituted or the Committee has not proceeded in the manner as desired by the Court in its judgment, or if a situation so demands, a new committee can be constituted as expenditiously as possible and steps can be taken to consider the relevant factors to decide whether there should be abolition of contract labour system whether there will be direct absorption of the employees concerned or otherwise.

12. Mr. Mitra, learned Advocate for the respondent No.2. has submitted forcefully that no contempt has been committed by the respondent No.2 in the matter, that steps were taken to implement the judgment of Court as directed on the respondent No.2. It is further submitted that the ECL respondents had no objection if the Union of India had taken proper steps to implement the said judgment. But Mr. Mitra learned Advocate for the respondent No.2 has also submitted that this Court cannot take steps to implement the said judgment dated 14.12.1980 for immediate absorption of the employees concerned by the respondent No.2 E.C.L. respondents. Attention of court has been drawn to reported decision in Dena Nath and others Vs. National Fertilisers Ltd. and others, wherein the Apex Court has held that Contract Labour (Regulation & Abolition) Act merely regulates the employment of contract labour in certain establishment and provides for its abolition in certain circumstances, the Act does not provide for total abolition of contract labour, but provides for abolition by the appropriate Government in appropriate cases u/s 10 of the Act. Hence, it is not for this Court to enquire into the question and decide whether the employment of contract labour in any process, operation or in any other work in any establishment should be abolished or not. It is a matter for decision of the Government after considering the matter, as required to be considered u/s 10 of the Act. The only consequence provided in the Act where either the principal employer or the labour contractor violater the provisions of Sections 9 and 12 respectively is the penal provision, contained in Sections 23 and 25 of the Act. Therefore, in proceedings under Article 226 of the Constitution merely because contractor or the employer had violated any provision of the Act or the Rules. Court may not issue any writ of Mandamus for declaring the contract labour as having become the employee of the principal employer. Mr. Mitra, learned Advocate has strongly emphasized that in a contempt proceedings, this Court can not go a step forward beyond what has been stated in its judgment, holding, inter alia, that in the facts and circumstances of the case contract labour system should be absorbed by the principal employer.

13. Having heard the lengthy arguments advanced by the different parties, with all patience and anxieties, this Court is of the view that in a contempt proceeding arising out of a writ matter, and while sitting in contempt jurisdiction, the court has to visualise two dimensions : i) as to wilful and deliberate violation by the contemner(s) of Court''s order, if any, and as to quantum of punishment if the contemners are found guilty and; (ii) to see as to how the judgment ear order can be implemented and/or executed. In a Civil decree, there is a forum of execution of a decree, but in a writ case, there is no such forum for implementation of the judgment and order. The age-old dictum is also there that an execution court cannot go behind the decree. this Court considering the various submissions of the respective parties, feels the anxieties of the petitioners that inspite of the judgment delivered in 1988. Union of India sat tight over the matter for years together, A petition filed before the Supreme Court has been directed to be treated as contempt petition before this Court, and after all such procedure, what will be the effective purpose, if the desired result is not obtained and a proper order is not made for immediate absorption. It is highlighted on behalf of the Union of India that there may be failings, delays and/or laches, but whether this Court would be competent to pass another judgment holding, inter alia, as that there should be abolition of contract labour system and immediate absorption of the employee, this is an issue to be decided properly. Lately, the case of Dena Nath and others Vs. National Fertilisers Ltd. and others, was considered in a subsequent judgment of the Hon''ble Supreme Court and the principle enunciated by the Hon''ble Supreme Court earlier has not yet been distinguished or differed. this Court with its own anxiety has also considered the scope of Order XXI. Rule 32 sub-Rule (5) of the Code of Civil Procedure. The spirit and/or the principle as envisages in the Code in generally extended for effective disposal of the writ petition. From the provisions of the Civil Procedure Code, as indicated above, is transpires that where a decree for specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the costs of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.

14. If the spirit and/or principle of aforesaid sub-rule (5) is extended to the facts and circumstances of this case, this Court can consider passing of any order consequent to an order or judgment by which respondents were directed to do some acts which they have not done. Although the writ Court, considering the contempt application, can certainly go a step forward to pass effective order for the proper implementation of its judgment, but the facts and circumstances of the case herein are otherwise. In its judgment in the writ petition, this Court directed the Union of India, appropriately, to cause an appropriate enquiry by appointing a body of experts to consider the relevant and material factors as to whether the grievances of the writ petitioners should be considered and whether in the situation prevailing in the Ningha Colliery, there should be abolition of contract labour system and as such whether respondent No. 2, ECL authorities should be compelled to absorb the petitioners'' employees, who are found to be working as contract labourers. In order to absorb employees, under principal employer, the necessity factors have to be considered by the expert body whether there should be abolition ''of the contract labour system or not. If the Body or the committee has not been properly constituted or if the body failed to perform its duties, as required by this Court, this Court cannot itself become an expert body. this Court cannot pass any order that there are/were factors by which there should be abolition of contract labour system and /or there should be immediate absorption of the contract labourers.

15. Admittedly, this Court is of the view that the Union of India failed to comply with the judgment of this Court. this Court finds that the contemner has not taken effective steps and even in steps were taken, those were not properly followed to meet the end. The steps taken were illegally taken and they do not inspire the confidence of the court. Reports of the Committee have been filed in a haphazard manner, which seem to be a complete farce. this Court is fully convinced that the contemner did not take steps to implement the Court''s judgment in the manner as required. Inspite of expressing strong words and deep anguish, this Court is not in a position to grant the relies to the petitioners, in the manner as prayed for.

16. In the fitness of things, this Court directs the present Secretary, Ministry of Labour, Government of India, who it is reported, has Joined the post only a few months ago to take all immediate steps to form a Committee as required to implement Court''s order/judgment dated 14.12.1988 within a period of 4 weeks from the date of communication of this order and the members of the Committee will form their opinion, file a report to this Court within 3 months from the date of assuming charge. this Court will then consider, after receipt of the report and/or the decision of the Committee, whether to pass further orders for implementation of Court''s judgment dated 14.12.1988.

17. With regard to punishment of the Contemner, this Court finds that the sole contemner has not done the acts as directed to be done by this Court, but since this Court does not find any wilful violation or disobedience nor is there any presence of animosity, this Court reprimands the contemner and directs the present Secretary, Ministry of Labour, Govt. of India to take all immediate steps as indicated above and also in the judgment dated 14.12.1988.

18. Since an apology has been tendered by the present Secretary, the court accepts the same and in view of the fact that he is not directly responsible for any violation or delay in implementing Court''s order/judgment, the contempt so far as punishment is concerned, is dropped.

19. Liberty is given to mention immediately after filing of the report as aforesaid so that the court can pass necessary orders. Let Xerox copy of the order, authenticated by the Deputy Registrar(Ct.) be given to all the Advocates of different parties, on the usual terms and conditions.