Gujarat High Court
Pravinkumar Nandlal Modi vs Jayesh Hargovindbhai Patel on 6 January, 2021
Bench: Nirzar S. Desai
C/MCA/229/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 229 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 15382 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PRAVINKUMAR NANDLAL MODI & 1 other(s)
Versus
JAYESH HARGOVINDBHAI PATEL & 2 other(s)
==========================================================
Appearance:
MR NK MAJMUDAR(430) for the Applicant(s) No. 1,2
MR DEEPAK G ALORIA(6580) for the Opponent(s) No. 1,2,3
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CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 06/01/2021
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE NIRZAR S. DESAI)
1. Present application is filed under the Contempt of Courts Act,
1971 [herein after referred to as 'the Act, 1971' for short] with
following prayers:
[A] The Hon'ble Court be pleased to punish Mr. Jayesh
Hargovindbhai Patel, Executive Engineer or his successor in
office i.e. respondent no.1, Mr.Shantibhai Patel, Deputy
Executive Engineer or his successor in office i.e. respondent no.2
and Mr.Hargovindbhai Vankar Deputy Executive Engineer or
his successor in office i.e. respondent no.3 for their willful
disobedience of the order of the Hon'ble Court.
[B] Be pleased to declare that the respondents have
intentionally flouted the order of competent court and direct the
respondents to pay special cost and compensation to the
applicants and further direct to pay all arrears of the salary of
the applicant with 12% interest.
[C] Pending admission and final disposal of this case be
pleased to direct the respondents to report full compliance of the
order of the Hon'ble Court.
[D] Any other and further reliefs as this Hon'ble Court may
deem fit and proper in the interest of justice be granted.
2. Heard Mr.N.K.Majmudar, learned advocate for the applicants
and Mr.Dipak Aloria, learned advocate for the Respondent No.2 -
Gujarat Water Supply and Suez Board [herein after referred to as
'the respondent Board', for short].
3. It is the case of the applicants that they were serving under
Respondent No.2 board being appointed as daily wager in the year
1989 and 1990. The applicant no.1 was appointed on the post of
Helper whereas the applicant no.2 was appointed as Electrician.
Though the applicants had worked uninterruptedly for more than
10 years and were performing duties similar to regularly selected
employees on on a sanctioned posts, they were not paid the salary
as per their entitlement at par with the persons who are appointed
on a regular posts and, therefore, they were to be paid equally at
par with the regular employees of the respondent Board. It was
alleged that by adopting unfair labour practice, the respondent
Board deprived them of their legitimate right of equal pay.
Therefore, the applicants challenged the aforesaid action of the
respondents before the Labour Court at Mehsana by way of
Reference (LCMD) No.2 of 2008 [(Old No.7 of 1997)]. The learned
Presiding Officer, Labour Court, Mahesana vide award dated
30.09.2015 partly allowed the said Reference and directed the
respondent board to regularise the services of the workman
(applicant no.1) with effect from 01.05.1999 on the post of Helper
and to regularise the services of the workman (applicant no.2) with
effect from 01.11.1990 on the post of Electrician and to grant
consequential benefits of regular and permanent workman with
effect from 01.01.2012 with clarification that the period from
01.05.1999 to 01.12.2012 be treated as notional period for the
purpose of granting the benefits.
3.1 Aforesaid award was challenged before this Court by the
respondent Board by way of filing Special Civil Application
No.15382 of 2016. Said petition came to be rejected by this Court
vide an order dated 17.07.2018.
4. Mr.Majmudar, learned advocate for the applicants submitted
that vide order dated 17.07.2018 the petition preferred by the
respondent board was dismissed, however, the order passed by the
Labour Court, Mehsana dated 30.09.2015 in Reference (LCMD) has
not been complied with and as such the action of the respondent
authorities is contemptuous action and, therefore, present
application is filed. He has urged that appropriate orders /
directions be issued against the erring contemptnor respondents.
5. Mr.Dipak Aloria, learned advocate for the respondent Board
submitted that the respondent authorities have complied with the
order passed by the Labour Court, Mehsana which is confirmed by
this Court by rejecting Special Civil Application No.15382 of 2016.
Mr.Aloria, learned advocate submitted that respondents have
complied with the orders as per the direction issued by the Labour
Court, Mehsana and confirmed by this Court qua both the
applicants. He submitted that vide order dated 22.03.2019 passed
in respect of applicant no.1, Mr.Pravin Nandlal Modi, Order No.70
of 2019 was issued by the respondents and he was placed in the
fixed pay of Rs.2550/ on completion of five years of service.
Subsequently, on completion of 10 years of service the applicant
no.1 was made permanent and was placed in the payscale of
Rs.25503200/ and he was also granted other benefits as per
Government Resolution dated 17.10.1988. He further submitted
that vide Cheque No.059273 dated 25.03.1990, an amount of
Rs.5,51,801/ was paid to the applicant no.1 towards benefits as
directed by the Labour Court, Mehsana. In respect of applicant
no.2, Mr.Aloria, learned advocate submitted that vide order dated
27.02.1990, applicant no.2 was put in fixed payscale of Rs.2550
on completion of five years of service and subsequently on
completion of 10 years of service, he was made permanent vide
order dated 28.03.1990 and was placed in the payscale of
Rs.25503200. The applicant No.2 was also granted other benefits
as per the Government Resolution dated 17.10.1988 and he is also
paid an amount of Rs.7,39,312/ through Cheque No.578369. The
details of payment made to applicant no.2 was also communicated
to him vide order dated 02.04.2019 and, therefore, this actions be
treated as compliance of the orders for which the applicants are
seeking compliance and have preferred present application under
the Contempt of Courts Act. Mr.Aloria submitted that, in view of
above, since the orders stand complied, present application may be
disposed off.
6. In rejoinder, learned advocate Mr.Majmudar for the
applicants, on the basis of his further affidavit, submitted that
respondent's say of compliance of the orders of Labour Court,
Mehsana as well as this Court is actually not the compliance but is
merely an eyewash. He further submitted that in the name of
compliance, actually injustice has been meted out to the applicants
and they are not given benefits as per their entitlement. It is
submitted that in the name of compliance, the respondent
authorities have treated applicant no.1 as unskilled daily wager and
he is placed under the payscale of Rs.2550552660-60-3200 but
actually he is entitled for the payscale meant for post of Helper
which is Rs.44407440. By not granting aforesaid payscale to the
applicant no.1, the respondents have perpetuated the contempt
which they have already committed at the time of filing the present
application.
6.1 With respect to applicant no.2, Mr.Majmudar, learned
advocate further pointed out that applicant no.2 is also treated as
unskilled daily wager and is placed in the payscale of Rs.255055
2660603200 as against his entitlement of payscale meant for the
cadre of Electrician which is Rs.520020200. According to
Mr.Majmudar, learned advocate by not giving the payscales to the
applicants as per their entitlement without any justification
respondent authorities have committed contempt of the order
passed by the Labour Court, Mehsana as well as by this Court and,
therefore, the suitable direction be issued against the erring
contemptnor respondents.
7. As against that, Mr.Aloria, learned advocate for the
respondent board pointed out from further affidavitinreply filed
by Respondent No.1 that the orders of compliance passed by the
respondents authority are based on record available with the
respondents. Initial appointment of each of the applicant was as
unskilled labor, and hence they are rightly placed in the payscale
meant for unskilled labouror along with the benefits as per the
Government Resolution dated 17.10.1988. He further submitted
that the present applicants have also preferred Special Civil
Application No.15235 of 2019 whereby the applicants have
challenged the orders dated 27.02.2019, 22.03.2019 and
28.03.2019 which are passed by the respondent authorities in
compliance of the orders passed by the Labour Court, Mehsana and
confirmed by this Court vide order dated 17.07.2018 passed in
Special Civil Application No.15382 of 2016. The same being
subjudice, the action of the respondent Board cannot be said to be
contemptuous action as canvassed by Shri Majmudar, learned
advocate for the applicants. He further submitted that even the
issue with regard to the permanent status and other benefits to
daily wagers is pending before this Court in Letters Patent Appeal
No.326 of 2018 and the Division Bench of this Court, has, vide
order dated 10.12.2019, kept the same as CAV and, therefore also
as the issue has not attained finality, the action of the respondents
cannot be said to be contemptuous action. Therefore, he urged that
considering the substantial compliance of the orders by the
respondent authorities as well as considering the fact that orders
passed by the respondents authorities in compliance of the order
passed by the Labour Court, Mehsana as well as order dated
17.07.2018 passed in Special Civil Application No.15382 of 2016
are challenged before this Court before the learned Single Judge by
Special Civil Application No.15235 of 2019 wherein notice has
been issued vide order dated 12.09.2019 and since this Court is
ceased of with the issue, the present application may be dismissed.
8. After hearing rival submissions and after examination of
documents on record, we find that it is true that the order passed
by the Labour Court, Mahesana dated 30.09.2015 in Reference
(LCMD) No. 2 of 2008 [Old No.7 of 1997] is confirmed by this
Court vide order dated 17.07.2018 in Special Civil Application
No.15382 of 2016. From the record, we have also noticed that the
order dated 17.07.2018 has not been challenged further by the
respondents and on the contrary by acting upon the aforesaid
order, benefits are given to the applicants vide orders dated
27.02.2019, 22.03.2019 and 28.03.2019. On perusal of the record,
we have not come across any order or averment about the
challenge of the said order dated 17.07.2018 passed by the learned
Single Judge of this Court pending before this Court in Appellate
Bench, nor the affidavit by the applicant that challenge to the said
order is under contemplation and, therefore, the order dated
30.09.2015 has attained finality. This can also be seen from the
stand taken by the respondent that order has been complied with
by the respondent authorities by extending the benefits to the
applicant vide two separate orders, as referred to herein above, in
forgoing paras. We have also noted from the record that since the
Labour Court, Mehsana had partly allowed the Reference and
directed the respondent Board to grant certain benefits to the
applicants but did not grant the benefits to the applicants for the
period between the year 1999 to 2012. Being aggrieved by the very
award dated 30.09.2015 passed in Reference (LCMD) No.2 of 2008
[Old No.7 of 1997], the present applicants also had preferred
Special Civil Application No.15234 of 2019 before this Court. The
said petition came up for hearing before this Court on 17.03.2020
and this Court dismissed the said petition on the ground of delay as
well as on account of suppression of material fact. From the record,
it seems that the applicants have not challenged the aforesaid order
dated 17.03.2020. We have also noticed from the record that
present applicants have also preferred another petition which is
pending before this Court as submitted by Mr.Aloria, learned
advocate being Special Civil Application No.15235 of 2019 wherein
this Court has issued notice and at present the said petition is
pending. The prayers in the said petition, as reproduced by this
Court while issuing notice in Special Civil Application No.15235 of
2019, are as follow:
" (i) to direct the respondent authorities to comply
with the judgment and order passed by the Labour
Court, Mehsana, by substituting the orders issued by
the respondentauthorities dated 27.2.2019 and
28.3.2019 by appointing the petitioner No.1 on
permanent post of Electrician with effect from
1.11.2000 and to fix his pay in the regularly pay scale
attached to the said post and also to pay the arrears
thereof with 12% interest.
(ii) to direct the respondents authorities to comply
with the judgment and order passed by the Labour
Court, Mehsana by substituting the two orders issued
by the respondentauthorities dated 22.3.2019 by
appointing the petitioner No.2 on permanent post of
Helper with effect from 1.5.1999 and to fix his pay in
the regular pay scale attached to the said post and also
to pay the arrears thereof with 12% interest;
(iii) to extend in favour of the petitioners the benefit
of CPF, group insurance and such other benefits as
may be available to the permanent employees working
on the establishment working on the establishment of
the respondent authorities;
(iv) to extend in favour of the petitioners the benefits
of 6th and 7th Pay Commission and also to fix their pay
accordinlgy and to pay the resultant arrears thereof
with 12% interest."
8.1 We have also noticed from the record that, as stated in
further affidavit filed by Respondent No.1 dated 07.09.2020, that
the issue in respect of grant of permanent status and further
benefits of daily wager is pending before this Court and before this
Court, in Letters Patent Appeal No.1765 of 2019 and other allied
appeals, the Division Bench vide order dated 10.12.2019 has kept
its judgment reserved as CAV.
9. From the aforesaid submissions as well as on perusal of
record of Miscellaneous Civil Application No.229 of 2019, the fact
emerges that the award passed by the Labour Court, Mehsana
dated 30.09.2015 which is confirmed by this Court vide order dated
17.07.2018 passed in Special Civil Application No. 15832 of 2016
has been complied with by the respondents. Said compliance is
disputed by the applicants and orders of compliance have further
been challenged by the applicants before this Court by preferring
Special Civil Application No.15235 of 2019 which is pending at
present and whereby the applicants are seeking determination of
their entitlement of a particular payscale as prayed for by them
and, therefore, it cannot be said that there is willful disobedience
on the part of the respondent authorities in complying with the
orders for which the present application under the Contempt of
Courts Act has been preferred.
9.1 The Hon'ble Supreme Court of India has just recently, while
dealing with the aspects of willful disobedience, in the case of
Workmen through the Convener FCI Labour Federation vs.
Ravuthar Dawood Naseem decided on 19.05.2020 in Contempt
Petition (Civil) No.404 of 2019 in Civil Appeal No.10511 of 2011
[2020 SC OnLine SC 461], in para:12 observed as under:
" 12. Thus, in order to punish a contemnor, it has to be
established that disobedience of the order is "wilful". The
word "wilful" introduces a mental element and hence,
requires looking into the mind of a person/contemnor by
gauging his actions, which is an indication of one's state
of mind. "Wilful" means knowingly intentional, conscious,
calculated and deliberate with full knowledge of
consequences flowing therefrom. It excludes casual,
accidental, bona fide or unintentional acts or genuine
inability. Wilful acts does not encompass involuntarily or
negligent actions. The act has to be done with a "bad
purpose or without justifiable excuse or stubbornly,
obstinately or perversely". Wilful act is to be distinguished
from an act done carelessly, thoughtlessly, heedlessly or
inadvertently. It does not include any act done negligently
or involuntarily. The deliberate conduct of a person
means that he knows what he is doing and intends to do
the same. Therefore, there has to be a calculated action
with evil motive on his part. Even if there is a
disobedience of an order, but such disobedience is the
result of some compelling circumstances under which it
was not possible for the contemnor to comply with the
order, the contemnor cannot be punished. "Committal or
sequestration will not be ordered unless contempt
involves a degree of default or misconduct." (Vide S.
Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 SCC 591,
Rakapalli Raja Ram Gopala Rao v. Naragani Govinda
Sehararao, (1989) 4 SCC 255, Niaz Mohammad v. State
of Haryana, (1994) 6 SCC 332, Chordia Automobiles v.
S. Moosa, (2000) 3 SCC 282, Ashok Paper Kamgar
Union v. Dharam Godha, (2003) 11 SCC 1, State of
Orissa v. Mohd. Illiyas, (2006) 1 SCC 275 and Uniworth
Textiles Ltd. v. CCE, (2013) 9 SCC 753.
xxx xxx xxx
15. It is wellsettled principle of law that if two
interpretations are possible, and if the action is not
contumacious, a contempt proceeding would not be
maintainable. The effect and purport of the order is to be
taken into consideration and the same must be read in its
entirety. Therefore, the element of willingness is an
indispensable requirement to bring home the charge within
the meaning of the Act. [See Sushila Raje Holkar v. Anil
Kak, (2008) 14 SCC 392 and Three Cheers Entertainment
(P) Ltd. v. CESC Ltd., (2008) 16 SCC 592." (emphasis
supplied) Suffice it to observe that to constitute civil
contempt, it must be established that disobedience of the
order is wilful, deliberate and with full knowledge of
consequences flowing therefrom. For reaching that
conclusion, it is essential to notice the scope of References
before the Tribunal and direction issued therein, which has
been affirmed upto this Court. Going by the plain text, the
issue(s) referred to for adjudication (reproduced in
paragraph 3 above) is merely for regularisation. However,
the pointinissue considered by the Tribunal coupled with the
operative part of the award (which has been reproduced in
the earlier part of this judgment), it would at best be a case
of directing the respondent Corporation to regularise and
departmentalise the concerned workmen, who were party to
the stated References."
10. From the aforesaid observations, it is crystal clear that it is for
the applicant to establish that the disobedience of the order of the
Court was willful, deliberate and with full knowledge of
consequences flowing therefrom. In the instant case, we do not find
any averments either in the application or in subsequent affidavit
filed by the present applicants which would even slightly suggest
that the disobedience of the order on the part of the respondents is
willful as canvassed by Mr.Majmudar, learned advocate and,
therefore, we are convinced that the action of the respondent Board
cannot be said to be willful disobedience of the order which is the
most essential ingredients to proceed further in respect of taking
any action against the contemptnor under the Contempt of Courts
Act, 1971. We also notice that there is substantial compliance of
the orders passed by the Labour Court, Mehsana as well as of this
Court by the respondent authorities, as the petitioners are not only
given the regular payscale from their erstwhile job under the fixed
pay but are given arrears also, as directed by the Labour Court,
Mahesana, which is confirmed by this Court. Of course, the
entitlement to a particular payscale is challenged by the applicants
by way of substantive petition but nonetheless applicants cannot
deny that they have been given benefits by the respondent
authorities. The applicants' entitlement to a particular payscale is
an issue which is subjudice before this Court, and, therefore, at this
juncture, we do not find any reason to believe that the award of the
Labour Court, which is confirmed by this Court, there is any non
compliance.
11. Accordingly, present application fails and the same deserves
to be dismissed and it is accordingly dismissed, with no order as to
costs.
(SONIA GOKANI, J)
(NIRZAR S. DESAI,J)
MISHRA AMIT V.
