Lokeshwar Singh Panta, J.
1. Both these Contempt Petitions filed under Article 215 of the Constitution of India read with Section 12 of Contempt of Courts Act, 1971 have been taken up and heard together since common questions of fact and law are involved therein and the learned counsel for the parties have made same and identical submissions and are being disposed of by this common order.
Facts
Both the petitioners were working with Pamwi Tissues Limited, Barotiwala as Welder/ Fitters. Their services were terminated by the management and Government of Himachal Pradesh referred Industrial Dispute to the Labour Court under Section 10 of the Industrial Disputes Act, 1947 for its adjudication. The Labour Court quashed the termination of the petitioners as well as other co-workmen vide award dated December 7, 1996 and ultimate para granting relief to the petitioners by the Labour Court is reproduced as under:
'24. The result therefore, is that the entire enquiry proceedings held against the petitioners right from the framing of the charge-sheet Ex. PA is liable to be set aside and quashed which I accordingly order. The respondent company is commanded to reinstate the petitioners forthwith on the presentation of the copy of the order by them before it with all back wages and consequential benefits and other advantageous payments which may have accrued to them till today. The payment of the arrears of back wages and such like financial benefits shall be made to the petitioners by the respondent company within 40 days failing which it shall further be burdened with interest @ 12% per annum from today i.e. December 7, 1996 and also this order shall be put into execution in accordance with law. Let a copy of this award be sent to the appropriate Government for its publication. Let also a copy of this award be attached with each connected file.
Announced in this open Court today this 7th day of December, 1996.
Sd/-
MRIGAINDER SINGH,
Presiding Judge,
H.P. Labour Court,
Shimla.'
2. Feeling aggrieved against the impugned awards of the Presiding Judge, the Management Pamwi Tissues Ltd., filed three separate petitions in this Court. The writ petition in respect of petitioner Satnam Singh was registered as CWP No. 54/1997 and writ petition in respect of petitioner Shyam Singh was registered as CWP No. 52/1997. Both these writ petitions came up for hearing before a Division Bench of the Court and were finally dismissed on March 26, 1997. The copies of the judgments have been annexed with these proceedings as Annexure P-1. The Division Bench ultimately concluded as under:
'The last contention urged by the learned counsel for the petitioners is that the direction to the petitioners to pay interest at the rate of 12% per annum from the date of award is unsustainable. As we have pointed out already, the award becomes enforceable from the date of its publication. In the circumstances we set aside that part of the award and substitute the following direction in its place. The petitioners are liable to pay interest at the rate of 12% per annum from the date of dismissal of the workers, if it fails to pay the entire amount due to the workers as per the award within thirty days from the date of its publication.'
3. The petitioners have contended in these proceedings that the finding regarding reinstatement of the workmen, payment of back wages and quashing of the entire inquiry against the workmen being wholly unsustainable etc., were upheld by this Court. The award of the Labour Court was said to have been published in H.P. Rajpatra on April 5, 1997 and according to the averments made in these petitions, the petitioners were entitled to be reinstated with full back wages and arrears payable to them on account of back-wages are to be paid within one month without any interest and in case the same were not paid within 30 days from the date of the publication of the award, the petitioners were entitled to the interest @ 12% per annum from the date of dismissal.
4. The petitioners alleged that they were not offered reengagement nor were paid back wages by the Management, they submitted a representation dated May 3, 1997 marked Annexure P-2 whereunder they resubmitted their joining report in the Factory of Pamwi Tissues Ltd., Barotiwala, District Solan and alongwith joining report, the petitioners had also annexed the copy of the orders passed by this Court in the writ petitions. The petitioners were not allowed to join their duties neither they were paid the back wages etc. pursuant to the orders of this Court. On May 7, 1997 Shri R.K. Dutta (respondent No. 1 herein), who is working as General Manager (Works) of Pamwi Tissues Ltd., said to have sent a registered letter to the petitioners (Annexure P-3) wherein he pointed out that the Management was seeking some directions/ clarifications from the High Court in the matter and further it was pointed out that in case the petitioners so desire, they could report for duty at Chandigarh.
5. The petitioners contended that the letter dated May 7, 1997 asking the petitioners to join at some other place was clearly in violation of the orders passed by this Court dated March 26, 1997, which required the reinstatement of the petitioners by the Management and the reinstatement necessarily would mean the reengagement at the same place from where the petitioners' services were terminated and the Management was also not complying with the other directions about the payment of arrears of wages etc. to the petitioners. The petitioners in order to show their bona fides had reported for two days at Chandigarh office of the Management Company but they were being threatened and compelled to sign on some plain papers by the Management and the result was that after two days, the petitioners reported back at the Factory Gate of the Management Company at Barotiwala and requested for the implementation of the orders passed by this Court. The petitioners also alleged that they continuously reported for duties at the Gate of the Factory, but they were not allowed to enter the Factory and that on June 17, 1997 another letter (Annexure P-5) was issued by respondent No. 1, with reference to his earlier letter dated May 7, 1997, reiterating about the filing of an application for clarification of the orders of this Court passed in the writ petitions and the petitioners had again been asked to report for duty at Chandigarh office. The petitioners alleged to have replied the abovementioned letter dated June 17, 1997 vide their representation dated July 12, 1997, a copy of which has been filed as Annexure P-6 and its English translation Annexure P-6/T requesting the Management to reinstate the petitioners and also to comply other directions contained in the orders passed by the Division Bench.
6. The Management filed an application under Section 151 read with Section 153, C.P.C. seeking amendment of the judgment delivered by a Division Bench of this Court on March 26, 1997 through Shri Santosh Khaitan, Company Executive (respondent No. 2) and copy of the said application was supplied to the learned counsel for the petitioners. In the said application, it was being alleged by the Management Company that the Company had been declared as Sick Company under the provisions of Sick Industrial Companies (Special Provisions) Act, 1985 and was thereafter referred to BIFR in 1990 and a copy of the scheme for rehabilitation formulated by BIFR was also annexed with the said application wherein it was pointed out that the said company had been leased out to Swil Limited for 9 years. It was further pointed out in the said application that the workers, who were already actually working with the Management Company as on the date of lease, were retained by Swil Limited, although, they were not taken on the rolls of transferee Company and the salary to such workers were being reimbursed by transferee Company to Pamwi Tissues Ltd., and a prayer was also made in the said application that the petitioners may be allowed to be reinstated at its administrative office at Chandigarh and the work to be assigned to the petitioners would be that of an office-Peon and general helper, though, the designation of the petitioners would not be changed. The petitioners alleged that they had been working with Pamwi Tissues Ltd., as Welder-Grade-B which is much higher in hierarchy of posts and is a technical job. The petitioners contended that the respondents herein are intentionally disobeying the orders passed by the Division Bench and the application filed through respondent No. 2 was simply preferred to delay the implementation of the award of the Labour Court and denying justice to the petitioners as directed by the Division Bench. The petitioners asserted that Pamwi Tissues Ltd., have already reinstated some workmen, namely, S/Shri Raj Mal, Ram Singh, Jeet Singh and Ram Asra pursuant to the awards of the Labour Court and in compliance with the judgment of this Court in their writ petitions and that the stand taken by Pamwi Tissues Ltd. in the application for modification of the judgment of the Division Bench in the writ petition filed by the petitioners that Parnwi Tissues Ltd., have become Sick Industry was falsified. The petitioners also stated that respondent No. 1 is a General Manager (Works) of Pamwi Tissues Ltd., and is still incharge of the said Company and all the workers are being engaged by Pamwi Tissues Ltd. through its Officers and any internal arrangement for the purpose of rehabilitation was not relevant for the purpose of implementation of the orders passed by the Division Bench and that in the alleged rehabilitation scheme, there is reference to the liabilities of Pamwi Tissues which are to be borne by the said Company itself. The petitioners stated that the present respondents are adamant and intentionally disobeyed the orders passed by the Division Bench despite the fact that repeatedly, it was brought to their notice that in case the orders of the Court were not complied with, appropriate contempt proceedings would be initiated against them. On the premises noticed above, the petitioners have filed the present Contempt Petitions praying for initiation of contempt proceedings against the respondents for wilfully and intentionally violating the orders dated March 26, 1997 passed by the Division Bench.
7. Notices were issued to the respondents by the Division Bench on September 12, 1997 made returnable on October 17, 1997. Both the respondents appeared and filed their joint reply supported by separate affidavits. The respondents took as many as five preliminary submissions in their counter. In preliminary submission No. 1, the respondents have denied committing of contempt of the Court's order and submitted that they hold this Court and Court of law in the highest of esteem and regard but if this Court even remotely comes to the conclusion that any contempt has been committed, then in that case the respondents have tendered an unqualified apology and have prayed for dropping of the proceedings. They submitted in their preliminary submission No. 2 that they have taken all steps and have implemented the orders of the Division Bench both in letter and spirit. They also stated that vide order dated October 27, 1997 a Division Bench of this Court had directed the respondents to purge themselves of the contempt, in the meantime while granting time for filing reply to the contempt petitions and submitted that the respondents had written several letters which are being placed on record of these proceedings and have taken several steps and (sic) the observation made by the Court on October 27, 1997 may amount to prejudging the matter prematurely and prayed for the deletion of the observation of purging themselves from the order. The respondents in preliminary submission No. 4 submitted that the present contempt petitions are being misused as an arm twisting exercise by the petitioners who have failed and refused to join work at Chandigarh despite repeated requests and opportunities and the petitioners have effective remedy to get the award of the Labour Court implemented by resorting to appropriate proceedings within the frame work of the labour law. On merits, the respondents in para-7 of the counter have stated that the unit of Pamwi Tissues Ltd., at Barotiwala is no longer under the Control of the Management of the Company, as the same has been leased out for 9 years to Swil India Ltd., after the Company was declared a Sick Company under the provisions of Sick Industrial Companies (Special Provisions) Act, 1985. Thereafter, the Board of Industrial and Financial Reconstruction (BIFR) vide its order dated September 23, 1993 in case No. 166 of 1987 formulated a rehabilitation scheme for the Company and consequently the unit at Barotiwala had been leased out for 9 years to Swil India Ltd. and consequently all manufacturing activities of Pamwi Tissues Ltd. came to an end at Barotiwala in 1993 itself. Therefore, there was no wilful disobedience on the part of respondent in preventing the petitioners from joining work at Barotiwala and the matter being totally out of the hands of the respondents, the petitioners could not be permitted to join at Barotiwala. The respondents took remedial steps but the petitioners have been thwarting all the efforts of the respondents and Pamwi Tissues Ltd., and are bent upon to create a dispute and the petitioners are not helping the respondents and the Management of Pamwi Tissues Ltd., in the matter of implementation of the award of the Labour Court in letter and spirit.
8. The respondents also stated that as per the averments made in Annexure P-4, the petitioners have been informed to report for work at Chandigarh office of Pamwi Tissues Ltd., but they failed to do so which would clearly establish the fact that the petitioners are not interested in joining work but on the contrary are interested in indulging in litigation which is based on flimsy and imaginary untenable grouses. The respondents have stated that as per condition No. 4 of their appointment letters, the job of the petitioners is transferable to any section/plant department/Unit (present or future) of the Company as the Company may deem necessary, keeping in view its requirements, status of the petitioners and emoluments will not be adversely affected. Thus, the petitioners are incorrect in submitting that as per the award they were to be employed, at no place other than Barotiwala. Transfer being one of the primary conditions and incidence of service, the petitioners are bound to work at any place where they are transferred and their transfer is bona fide in the light of the fact that the unit of Pamwi Tissues Ltd., is under lease to Swil India Ltd. The respondent has stated that from the perusal of Annexures P-3 and P-5 and letter dated August 16, 1997 AnnexureR-1, letter dated September 25, 1997 Annexure R-2, letter dated October 18, 1997 Annexure R-3 and letter dated October 25, 1997 Annexure R-4 addressed to the petitioners, Pamwi Tissues Ltd., through respondent No. 1 have been repeatedly requesting and advising the petitioners to report for work immediately at Chandigarh office and also to collect dues and it has been repeatedly clarified to the petitioners that no work of a Peon will be taken from them and they will be paid wages and allowances as are commensurate with their employment as a Fitter. The petitioners have been repeatedly told that no disobedience on the part of the respondents much less wilful disobedience and in order to give effect to the award passed by the Labour Court they should report to the Chandigarh office during working hours so that their presence could be marked and their reengagement in service and also payment of dues may be effectively complied with by respondents and Pamwi Tissues Ltd., but it seems that the petitioners are more interested in making a mountain out of molehill. The respondents have categorically stated that the petitioners can still join and report for work immediately at the Chandigarh office on any working day or at a day and time that may be specified in the presence of the counsel by the Court. The respondents again reasserted and reaffirmed that no work of office Peon will be taken from the petitioners and their designation shall remain the same but in order to enable the Company to pay wages to the petitioners, it is necessary that they should report to the Chandigarh office every day during working hours. The respondents have made categorical statement in their counter that they have committed no wilful disobedience of any orders passed by the Court and the award passed by the Labour Court has been upheld by the Court in the writ petition filed by the petitioners and no orders of its own have been passed by the Court. The respondents stated that S/Shri Raj Mal, Raj Singh, Jeet Ram and Ram Asra in whose favour the award of the Labour Court was passed were reengaged by Swil India Ltd. as helpers as these persons were only working with Pamwi Tissues Ltd. before the Company was transferred to Swil India Ltd. at Barotiwala as helpers only and not Welders/Fitters like the petitioners. It has been stated by the respondents that Swil India Ltd., have no work for Welders/Fitters and if petitioners are willing to work as helpers, efforts can be made by the respondents to impress upon the Management of Swil India Ltd. to, engage them in that capacity at Barotiwala and it is not within the competence of the respondents or Pamwi Tissues Ltd., to force or exercise any control over Swil India Ltd. to engage any person much less the petitioners as Fitters/Welders. The respondents have stated that the reengagement and payment of dues under the award of the Labour Court is a liability of Pamwi Tissues Ltd. and the petitioners have been asked to report at Chandigarh office and there is distinction between Pamwi Tissues Ltd., and its Factory/Unit at Barotiwala and the Unit at Barotiwala has been leased out to Swil India Ltd. in sofar as its manufacturing activities are concerned.
9. The respondents submitted that when the application under Sections 151 and 153, C.P.C. which had been filed by Pamwi Tissues Ltd. and respondent No. 2 in the writ petition came up for adjudication and the application was dismissed by the Court on August 18, 1997 on the ground that since this Court could not go into a question of any evidence in exercise of jurisdiction under Articles 226/227 of the Constitution of India, the correctness of the contents of the application was bound to be gone into by this Court by permitting the parties to lead evidence. The respondents in the end have submitted that in the background of the factual position submitted by them in their Counter, if this Court still comes to the conclusion that there has been any contempt of Court on their part, they once again submit and tender their unqualified apology which may be accepted.
10. The petitioners have filed their rejoinder alleging therein that there is no act of contrition on the part of the respondents nor their action in the instant proceedings indicates any remorse on their part and, therefore, the conditional apology tendered by them is not an apology in the eyes of law as till date respondents have not complied with any part of the order passed by the Court including payment of back wages or their reinstatement. They have stated that this Court on October 27, 1997 had directed the respondents to purge themselves of the contempt and by not purging despite clear indication given by the Court, the respondents have aggravated the contempt and they are bent upon to justify their action. They have also stated that the respondents are devising new methods to justify noncompliance of order of the Court particularly when the stand now taken by them was never taken by the respondents before the Labour Court or in the writ petition filed by the Management and the new plea cannot be permitted to be taken up by the respondents in the replies filed in C.M.P. No. 613/1997 in C.W.P. No. 54 of 1993 and C.M.P.No. 112/1997 in C.W.P. No. 52/1993 after the disposal of the writ petitions. Those applications were also dismissed by the Court on August 18, 1997 on the ground that these pleas were available to the respondents when the matter was pending before the Labour Court or before this Court. The petitioners have stated that there being positive decision by the Court regarding the same subject matter, the same matter cannot be permitted to be raked up in contempt proceedings. They have also stated that it is totally incorrect on the part of the respondents to say that Pamwi Tissues Ltd., at Barotiwala is no longer under the Control and Management of the Company as the same had been leased out for 9 years to Swil India Ltd. According to the petitioners it would be evident from the perusal of draft scheme that Swil India Ltd. had taken on lease the plant and machinery on payment of rental and the Company would remain a separate identity and Pamwi Tissues Ltd. agreed to meet any contingent or other liability not known/ undisclosed at the time of sanctioning of the scheme by bringing in their own funds. With this understanding in the draft scheme, the sanctioned Rehabilitation Scheme was executed and as per the sanctioned scheme Swil India Ltd. was to finance Pamwi Tissues Ltd. to the extent of Rs. 1310 lacs, after March 31, 1993 onwards. Out of this amount, Rs. 350 lacs is to be utilised for capital expenditure on modernisation/up gradation and Rs. 960 lacs towards payment to institutions/banks. As per the obligation contained in the clause Swil India Ltd., has to pay lease rental of Rs. 320 lacs per annum payment in advance for each quarter for a period of 9 years and further to bring in funds of Rs. 350 lacs for capital expenditure on modernisation/upgradation of the unit for recourse to the Institution. There are other conditions regarding requirement of funds of the unit etc. and provision of tripartite agreement with PTL and ICICI regarding payment of dues of banks and financial institutions etc. and there is no reference to the Management and Control of the Company Pamwi Tissues Ltd. They have stated that Swil India Ltd. and Pamwi Tissues Ltd. both Companies are Subsidiary Companies of Satya Group of Companies and Management and most of the Satya Group Companies are almost common with one change hither and thither.
11. The petitioners have denied the averments of the respondents that manufacturing activities of the Company came to an end at Barotiwala in the year 1993 itself and it is also denied that Pamwi Tissues Ltd. is out of the hands of the respondents and the petitioners cannot be permitted to join at Barotiwala as the unit is totally under the control of Swil India Ltd. The respondents have given some instances of the workmen whose services were terminated by Pamwi Tissues Ltd. and in whose favour the Labour Court passed the award and those employees were reemployed by Pamwi Tissues Ltd. at Barotiwala pursuant to the awards of the Tribunal. They have also stated that Pamwi Tissues Ltd. have also given promotion on its own to many employees and these promotions/ upgradation letters marked Annexure P-13 and P-14 were also independently written by the Company and signed by respondent No. 1 as General Manager (Works) and that there is no reference of Swil India Ltd. in any of these letters. Similarly the wage slips to different employees working in Pamwi Tissues Ltd. are being issued by the Company and there is no mention of Swil India Ltd. and further that there are regular deductions out of the salary of the workers for Employees Provident Fund account for which pass books have been issued to the concerned workers independently and in all the pass books issued to the employees the name of the establishment is shown as Pamwi Tissues Ltd. The petitioners have contended that the respondents' insisting upon them to join at Chandigarh, is nothing but to frustrate the implementation of the orders of the Court and the petitioners were working at Barotiwala in the factory and there are no posts available for them of their grade or category at Chandigarh which is simply an Administrative Office of Pamwi Tissues Ltd. The petitioners have stated that their posts are no doubt transferable as per the appointment letters and even on transfer the petitioners are to be given the same status but in the instant case from technical posts in the factory, the petitioners are being asked to perform duties as Peon and that too outside the factory premises where they were initially engaged. The petitioners have also stated that the respondents have hidden motive asking the petitioners to join at Chandigarh with obvious object of ousting the jurisdiction of this Court. They are the employees of the establishment of the Industrial Institution which is constituted within the jurisdiction of the Labour Court situated in Himachal Pradesh and further which is situated within the jurisdiction of this Court by sending the petitioners to work at Chandigarh situated outside the jurisdiction of the Labour Court and this Court.
12. The petitioners have filed supplementary affidavit annexing therein with a copy of the representation submitted by them marked Annexure P-17 addressed to the Labour Commissioner, Himachal Pradesh, Labour Officer, Solan and Labour Inspector, Baddi bringing to the notice of the said authorities that the respondents were not complying with the Labour Commissioner's award and the decision of the Court in the writ petitions. On receipt of the representation dated October 6, 1997, the Labour Inspector, Baddi issued office order dated October 10, 1997 whereby the petitioners as well as the Management of Pamwi Tissues Ltd. were directed to appear before the said authority on October 13, 1997 for discussion at 2 p.m. A representative of Pamwi Tissues Ltd. appeared before the Labour Inspector on October 13, 1997 and clearly pointed out that the petitioners could not be reengaged in pursuance to the orders and the Labour Inspector was orally requested by the petitioners to take appropriate action against the Management for disobeying the orders of the Court, but it was pointed out to them by the Labour Inspector that since against the Labour Court award, a writ petition had been filed in the High Court, therefore, for any disobedience, the remedy would be the contempt petition. The petitioners again reasserted that vide order dated January 8, 1998 this Court directed Pamwi Tissues Ltd. to 3 deposit the entire back wages of the petitioners uptill December 31, 1997. However, the respondents have deposited only Rs. 1,32,283/- in one case and Rs 1,45,178/- in the other case whereas the amount due upto December 31, 1997 was Rs. 2,16,007.54 paise and Rs. 2,54,637/- respectively thereby the respondents have disobeyed even the order dated January 8, 1998 in its true letter and spirit and are liable to be proceeded against for disobedience of this order also.
13. The respondents in their replies to the supplementary affidavit of the petitioners have stated that they have already complied with the order of the Labour Court and, if any part of the award has remained to be implemented, the petitioners can execute the award by filing appropriate proceedings in the Labour Court itself and the present proceedings may kindly not be permitted to be used as execution proceedings by the petitioners. The respondents have also stated that the petitioners were categorically informed that they could join duties at Chandigarh office of Pamwi Tissues Ltd. without any prejudice to the emoluments/wages that they would otherwise be entitled to it in any case would not be adversely affected in any manner. The respondents have further stated that the order dated January 8, 1998 has been complied with by them and arrears of back wages along with 12% interest per annum as ordered by the Court has been deposited. The respondents have fully complied with the order of the Court and all increments, agreement benefits and bonus etc. were calculated and paid by the company upto the date of publication of the award i.e. April 5, 1997 whereas the petitioners have claimed wages upto December 31, 1997 and that since the petitioners have voluntarily absented from duties at Chandigarh, therefore, they are not entitled to any wages etc. beyond the date of publication of the award. The respondents have ultimately stated that the petitioners have claimed some more benefits in their representation made to the Labour Commissioner and other authorities which were not the subject matter of the award of the Labour Court.
Submissions
14. I have heard Mr. Shrawan Dogra, learned counsel for the petitioners and Mr. R.L. Sood, learned counsel for the respondents. Both the learned counsel have made their submissions based upon the pleadings placed on record of these proceedings. Mr. Shrawari Dogra, learned counsel firstly contended that new pleas raised by the respondents in the contempt petitions cannot be agitated by them when they had failed to raise those points before the Labour Court or in the writ petitions filed by Pamwi Tissues Ltd. The learned counsel elaborated his submissions that if Pamwi Tissues Ltd. has been leased to Swil India Ltd. and, therefore, the petitioners could not be reengaged in the same capacity and at the same place and this plea was not taken earlier by the respondents, now they are precluded from raising such plea in these proceedings. In support of his submission the learned counsel has relied upon The Associated Cement Co. Ltd. v. P.D. Vyas and Ors., AIR 1960 SC 665 : (1960-I-LLJ-563), Kavalappara Kottarathil Kochuni v. States of Madras and Kerala and Ors., AIR 1960 SC 1080, S.R. Tiwary v. The District Board, Agra, AIR 1964 SC 1680 : (1964-I-LLJ-1), The University of Mysore v. C.D. Govinda Rao and Anr., AIR 1965 SC 491; J.K. Cotton Spinning and Weaving Mills Co. Ltd, v. The Sales Tax Officer, Kanpur and Anr., AIR 1965 SC 1310; Municipal Corporation of the City of Jabalpur v. State of Madhya Pradesh and Anr., AIR 1966 SC 837; Hindustan Antibiotics Ltd. v. The Workmen, AIR 1967 SC 948 : (1967-I-LLJ-114) and Filmistan (Private) Ltd. v. Balkrishna Bhiwa and Anr., AIR 1972 SC 171 : 1972 (4) SCC 200 : (1971-II-LLJ-335). I have given my thoughtful consideration to the ratio of the judgments of the Apex Court in all these cases. The proposition of law laid down by their lordships of the Apex Court in those cases was that ordinarily, when a question raised depends upon an illustration of further facts not disclosed in the statements already filed before the Courts below, the parties should not be taken by surprise to allow the opposing party to make out a new case at later stage in some other proceedings arising out of controversy already settled by the Courts.
15. In the cases on hand updisputedly the plea raised by the present respondents in those proceedings about leasing out Pamwi Tissues Ltd. at Barotiwala for 9 years to Swil India Ltd. after the Company was declared as sick Companies under the provisions of Sick Industrial Companies (Special Provisions) Act, 1985 and that the petitioners could not be rehabilitated under the Rehabilitation Scheme at Barotiwala in the same capacity because of nonavailability of the category to which the petitioners belong was not raised br Pamwi Tissues Ltd. before the Labour Court when the labour dispute was pending for adjudication nor in the writ petitions filed by the Management against the award of the Labour Court. Pamwi Tissues Ltd. had brought this fact to the knowledge of the Court in their applications seeking modification/amendment of the judgments delivered by the Division Bench in the writ petitions. A Division Bench of this Court while deciding those applications observed that as a matter of fact those pleas were available to Pamwi Tissues Ltd. when the matter was pending before the Labour Court but they have not taken before the Labour Court or before this Court in the Writ Petitions. The learned Judges proceeded to hold that the correctness of the averment contained in the petitions are being disputed by the respondents who are petitioners in these contempt petitions and in such circumstances, the learned Judges were unable to entertain those applications which were filed after the disposal of the writ petitions for modification of the orders passed in the writ petitions and consequently both the applications were dismissed. Undoubtedly, the respondents have remained not vigilant to put their defences properly before the Labour Court in the proceedings initiated by the petitioners under Industrial Disputes Act and the award was ultimately passed against Pamwi Tissues Ltd. by the Labour Court and the said award was affirmed by this Court in the writ petitions filed by Pamwi Tissues Ltd. save and except to the extent of awarding of interest which was awarded by the Division Bench from the date of dismissal of the workers, if Pamwi Tissues Ltd. would fail to pay the entire amount due to the workers as per the award within 30 days from the date of their publication.
16. The primary and only point that arises for the consideration of this Court in these contempt proceedings is whether the respondents have wilfully disobeyed the judgment of this Court passed in the writ petitions affirming the awards of the Labour Court or not. For the purpose of determination and consideration of the point the pith and substance of the award of the Labour Court have to be seen. The relief granted by the Labour Court to the petitioners has been extracted in the earlier part of this judgment which would show that Pamwi Tissues Ltd. was commanded to reinstate the petitioners forthwith on the presentation of the copy of the order by them before the Company with all back wages, consequential benefits and other advantageous payments which may have accrued to the petitioners till the date of the award besides granting the interest. From a bare reading of the award of the Labour Court, apparently there is no specific or clear direction that the petitioners should be reengaged at the same place where they were working before their dismissal. This Court in the writ petitions filed against the award of the Labour Court by Pamwi Tissues Ltd. has affirmed the award of the Labour Court without giving any independent or express direction to Pamwi Tissues Ltd. save and except modification of the award in respect of the payment of interest from specified date. Impliedly it may be construed that the petitioners were to be reengaged at the same place where they were earlier working, but if it has become impossible for the respondents to reengage them at the same place in the same capacity for the reasons stated by them in their counter filed in the present proceedings and the reasons so stated are found to be genuine and honest beyond any cause of doubts, it cannot be said that the respondents are bent upon not to comply the directions of the Labour Court and affirmed by this Court in the writ petitions. The respondents have categorically stated that with sincere efforts they are ready and willing to reengage the petitioners in their factory premises at Chandigarh where works are available in respect of the categories to which the petitioners belong and there are no posts available at Barotiwala where the factory has been handed over to Swil India Ltd. and that under the Rehabilitation Scheme, the petitioners cannot be thrown upon Swil India Ltd. since with the said Company there is no work available in respect of the category to which the petitioners belong. This Court has; also not commanded Pamwi Tissues Ltd. independently and expressly to reengage the petitioners at Barotiwala in the same capacity but the import of the judgment of this Court in the writ petitions is only that whatever relief was granted by the Labour Court to the petitioners, the Court has upheld the award to that extent and unless it is shown by the petitioners that the respondents have wilfully disobeyed the orders of this Court passed in the writ petitions, the respondents cannot be said to have committed contempt of the Court for disobeying its orders. The plea raised by the respondents in their counters in these proceedings were brought to the notice of this Court by them by way of filing applications for modification of the order of the Court in the writ petitions, but those pleas were not entertained by the Court for the reason stated hereinabove. In such circumstances, it cannot be said that respondents have raised their new plea only to defeat the claims of the petitioners and that too for the first time in these proceedings. Thus, in the peculiar facts and circumstances of the case, the ratio of the judgments relied upon and referred to above by the learned counsel for the petitioners cannot be by implication applied in the present proceedings.
17. The second contention of the learned counsel for the petitioners was that contempt proceedings will serve a dual purpose, namely, to punish the contemners and also to compel the respondents to obey the order of the Court. In support of this submission, the learned counsel has placed reliance on The Aligarh Municipal Board and Ors. v. Ekka Tonga Mazdoor Union and Ors., AIR 1970 SC 1767 : 1970 (3) SCC 98; Comorin Match Industries (P.) Ltd. v. State of T.N., AIR 1996 SC 1916 : (1996) 4 SCC 281 and Delhi Development Authority v. Skipper Construction Co. (P) Ltd., AIR 1996 SC 2005 : (1996) 4 SCC 622. In Aligarh Municipal Board's case (supra), their Lordships held that contempt proceedings against a person who has failed to comply with the Court's order would serve a dual purpose: (1) Vindication of the public interest by punishment of contemptuous conduct and (2) coercion to compel the contemner to do what the law requires of him. In the proceedings on hand as already stated, the respondents were commanded by the Labour Court to reengage the petitioners and the award was upheld by this Court and no other orders or directions were issued by this Court which will amount to disobedience of this Court's order in any manner by the respondents what to talk of wilful disobedience of the Court's order. In other two cases referred above, their Lordships of the Supreme Court held that if the order of , the Writ Court was not carried out, the contempt Court was bound to pass suitable orders to ensure obedience to the order of the Court and the question of correctness and validity of the judgment passed on the writ petitions could not be raised in a contempt proceedings. The facts of the present cases are totally different and no fresh directions or orders were passed by this Court in the writ petitions. The respondents are bound to comply the directions of the Labour Court made in the award and under the Industrial Disputes Act, the petitioners have got effective legal remedy to enforce the award of the Labour Court which has attained finality when the writ petitions filed against the impugned awards of the Labour Court came to be dismissed by this Court.
18. The next contention of the learned counsel for the petitioners was that the award of the Labour Court has merged in the judgment of the High Court in the writ petitions and unless the respondents first purge themselves at the earliest possible opportunity, the respondents cannot be heard in these proceedings. The learned counsel placed reliance on a special Bench judgment of Calcutta High Court : In the matter of Hiren Bose, Contemner; Mulkh Raj v. The State of Punjab, AIR 1972 SC 1197 : 1972 (3) SCC 839, Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and Ors., AIR 1991 SC 2176 : 1991 (4) SCC 406 and Pritam Pal v. High Court of Madhya Pradesh, AIR 1992 SC 904 : 1993 Supp. (1) SCC 529. In all the cases cited above, their Lordships of the Apex Court have held that once a person is found having committed contempt of the Court, he should be adequately punished in accordance with law. In Mulkh Raj's case (supra), it was held that unless apology was offered at the earliest opportunity and in good grace apology was shorn of. penitence it was liable to be rejected. It was further observed that if apology was offered at a time when the contemner finds that the Court was going to impose punishment it ceases to be an apology and it becomes an act of a cringing coward. I am afraid that all the decisions relied upon by the learned counsel on the question of punishing the respondents and accepting the apology are not attracted in the facts of the present proceedings. Once it is found that no Contempt of Court's order has been committed by the respondents, there is no question of punishing them or accepting their apology. However, it may be pertinent to notice here that the respondents at the very first day of filing their written statement have tendered unconditional apology if they are found to have wilfully disobeyed the order of this Court passed in the writ petitions. It has been specifically stated by the respondents in their counter supported by affidavits that both the petitioners have been repeatedly requested by the respondents after the disposal of the writ petitions to report for duty at factory office of Pamwi Tissues Ltd. at Chandigarh but they have not chosen to join at Chandigarh. The respondents have filed on record various communications addressed to the petitioners whereby they have been informed that Pamwi Tissues Ltd. is on lease to Swil India Ltd. at Barotiwala and the transferee Company has denied the employment of skilled workmen in the factory due to surplus of the skilled workers and further that in accordance with the terms and conditions allowing the transfer of the workmen the petitioners were advised to report at Chandigarh office without affecting their emoluments and the efforts made to them were also in no way against the spirit of Court's order. From a bare perusal of communication dated July 10, 1997 sent by Shyam Singh to the Management of Pamwi Tissues Ltd. vide Annexure P-7, it would be clear that the said petitioner had gone to join his duty in Factory Mauza Jhar Majari (Chandigarh), but the Manager refused to take him back to employment and he requested the authority concerned to reinstate him in Pamwi Factory, Mauza Jhar Majari as Fitter/ Welder against the post he was earlier holding. The respondents have given categorical assurance in the form of their statements in their counters filed in these proceedings that they are ready and willing to reengage the petitioners in the Factory of Pamwi Tissues Ltd. at Chandigarh against the same category which they were holding before their dismissal and in the teeth of the unconditional assurance of the respondents, the petitioners cannot impress upon the respondents to reengage them at Barotiwala in a Factory which is not under the control of Pamwi Tissues Ltd. in terms of the lease deed and if Swil India Ltd. has no work to be performed by the petitioners as Fitter/Welder. This Court in these proceedings cannot compel the respondents to do impossible work which is not in the competency or power of the respondents.
19. Mr. R.L. Sood, learned counsel for the respondents have made various submissions to counter the allegations of the petitioners during the course of the hearing of these petitions. His main contentions were that contempt if at all is found to have been committed is not by the respondents, but by the Company and the Company is not a party in the proceedings nor here are any allegations against the Company and that noninclusion of the Company as party is vital to the claim of the petitioners in these proceedings. He also contended that if the Company fails to comply with the order of the Court, the entire Board of Directors is responsible for disobedience of the order of the Court and the respondents are not the Directors of the Company nor they are Managers, therefore, in the absence of the Company no contempt as alleged is committed by the respondents. He has relied upon various judgments namely State of Madras v. C. V. Parekh and Anr., AIR 1971 SC 447 : 1970 (3) SCC 491; Dalip Kumar Jaiswal v. Debapriya Banerjee, Suryanarayanan v. Anchor Marine Service, 1995 I LW (Crl.) 132 Madras High Court; M. Krishnamoorthy v. B.S. Kesavan, 1994 I LW (Crl.) 135 Madras, High Court and U.P. Pollution Control Board v. Modi Distillery and Ors. AIR 1988 SC 1128 : 1987 (3) SCC 684. I do not feel it necessary to go into the various contentions raised by learned counsel for the respondents. on factual aspect of the matter and the ratio of the judgments relied upon on behalf of the respondents.
20. As noticed in the earlier part of this judgment, there is no specific or express order or direction issued by this Court in the writ petitions commanding the Company or the respondents to reengage the petitioners at Baddi nor there was express direction of the Labour Court to that extent. The Division Bench has given independent direction only to pay the amount of interest @ 12% per annum from the specified date and the said express direction has to be complied with by the respondents or the Company in letter and spirit without hesitation or difficulty. For getting the award of the Labour Court implemented, the petitioners have got effective and efficacious remedy under the provisions of the Industrial law. In Jiwani Kumari Parekh v. Satyabrata Chakravorty, AIR 1991 SC 326: 1990 (4) SCC. 737. Their Lordship have held that before a party could be committed for contempt, there must be a wilful or deliberate disobedience of the orders of the Court. In that case the Supreme Court issued direction to respondent to hand over possession of disputed premises to the petitioner within a specified date, but the respondent could not comply with the direction, due to various Court proceedings, the Court held that the respondent had not committed wilful or deliberate or reckless disobedience of the order of the Supreme Court.
21. In the teeth of the facts and circumstances noticed and considered hereinabove in these proceedings, this Court is unable to hold that the respondents have committed wilful or deliberate disobedience of the order of this Court in the writ petitions. The doctrine of merger of the Labour Court award in the judgment of this Court will not apply in the case on hand as no contempt would lie against the award of the Labour Court under the Contempt of Courts Act under the Industrial Disputes Act. Specific provisions are contained for executing the order of the Labour Court and this Court had dismissed the writ petitions of Pamwi Tissues Ltd. by upholding the award of the Labour Court. However, it is made clear to the respondents that they shall honour their commitment made by them in their written statement filed in these proceedings that the petitioners shall be reengaged in the same category at Chandigarh if the petitioners are willing to work at that place.
22. Consequently, for the abovesaid reasons and observations, both these Contempt Petitions are dismissed. Notices shall stand discharged. Costs on parties.