Judgment:
Leave is granted to correct the age, office address and designation of the deponent of the rejoinder dated 20th August, 2010.
Heard the learned Advocates appearing for the parties. Alleging violation of the portion of the judgment and order dated 23rd March, 2009 passed in APO No.146 of 2008, this contempt application has been filed. This appeal was heard along with the appeal of the workman being APO No.331 of 2008.
This Court directed the alleged contemnor to file affidavit-in opposition and reply thereto by the applicant before us. Those have been filed. Subsequently, directions were given for filing respective supplementary affidavits, particularly, to the alleged contemnor in view of his stand taken in the contempt proceeding that he has no money to refund in terms of the direction passed on 23rd March, 2009 in the aforesaid appeal cases. The order passed in the appeal which is the subject matter of this contempt petition reads such:
Accordingly, the workman is directed to refund the amount as already received on the strength of the interim order dated October 8, 2002, within two months from this date by depositing the same directing to the company, failing which the company will take appropriate steps.
Out of the said two appeals, one APO No.146 of 2008 filed by the employer S.T.P. Limited arose on the grievance that though the Learned Trial Judge in W. P. No.2098 of 2002 modified the earlier order granting relief under Section 17B of the Industrial Dispute Act but did not pass further order directing the workman to refund the equivalent wages as received by him in terms of the order of the Ld.
Trial Judge while staying the implementation of the award passed by the Ld. Industrial Tribunal below. Another appeal being APO No.331 of 2008 was filed by the workman assailing the said modified order.
In appeals, we, accordingly, decided the issue and directed to refund the amount received by workman in terms of Trial Courts order as well as initiation of criminal proceeding for submission of false affidavit against the respondent-workman due to the reason that though he was in employment at the material time but submitted otherwise on affirming an affidavit before this Court.
Assailing the judgment and order passed by us in the said two appeals, two Special Leave Petitions were moved registered as Appeal (Civil) Nos.15945-15946/2009 respectively which stood dismissed on 10th August, 2009. In paragraphs 5, 6, 7, 8 and 9 of the affidavit-in-opposition affirmed on 23rd December, 2009, the alleged contemnor has contended that due to unavoidable circumstances, as the contemnor/workman was illegally terminated from service, he is unable to pay the huge amount at this moment and if the dwelling house of the contemnor is sold out by the Honble Courts order he will be compelled to live with his family on the roadside. It is denied that the alleged contemnor has willfully and deliberately violated the order of the Honble Court.
He stated that he has no capacity to pay the huge amount at this moment, since he has no income and, as such the allegation that he deliberately violated the solemn order by contumacious conduct, does not arise. It is further stated that as per the Award passed by the Learned Tribunal, the workman is entitled to get the back wages from the date of termination and the amount asked for refund may be adjusted from arrear back wages in the event he succeeds in Writ Court.
It is also submitted that the alleged contemnor is not in a position to comply with the order of the Honble Court and for that he is begging unconditional apology. With reference to the statement made in paragraph 26 of contempt application, it is denied that contemnor has willfully, deliberately and/or intentionally violated the order dated 23rd March, 2009 passed by this Court. It is further submitted that if any order is passed by the Honble Court for attachment of the dwelling house of the alleged contemnor, he would suffer irreparable injury. With reference to the statement made in paragraph 27, it is stated that since the contemnor has no other shelter for residing save and except the present resident, question does not arise for selling, transferring, encumbering and/or alienating the said property as alleged. Since the alleged contemnor has taken a point of financial problem to comply with the Courts order, we wanted a further clarification disclosing his assets and liabilities. Another supplementary affidavit was filed. However, the first supplementary affidavit as filed was not accepted by this Court. In paragraph 4 of another affidavit, assets and liabilities have been mentioned, which reads such:
ASSETS LIABILITY a) Owner of a dwelling house consisting of 423 sq. ft. purchased in the year 1993 for Rs.35,000/-. a) Education loan taken for Rs.2 lacks for which 12.5% interest is being paid. b) Fixed deposit Rs.10,000/- in the Punjab National Bank. b) Corporation Tax (yearly) Rs.1,080/- c) Savings A/c Rs.22,468.55 (in the Punjab National Bank) (amount has been deposited in the Savings A/c after maturity of MIS) c) LIC Premium Rs.3,136 (p.a.) (on sum assured of Rs.60,000/-) d) Family Pension earning of Rs.616/- per month. In paragraphs 6 and 7 of said affidavit the financial difficulty has also been stated which reads such:
6. It is further stated that all the other expenses like maintaining my family, educational expenses of my son, social expenses etc. is being me up with the help of my well wishers as well as some times by selling the ornaments of my wife. 7. It is further stated that I am also no able to pay the legal expenses and the Lawyers fees are also due. The Counsels who are appearing in this matter on behalf of me are considering very sympathetically.
However, in paragraph 8 the alleged contemnor contended that he would refund the amount in the event of being successful in the writ proceeding wherein the award is now under challenge. The contention to that effect made in paragraph 8 of the said affidavit reads such: 8. In this respect it is stated that as soon as I shall get the back wages from the appellant as per the Award passed by the Learned Tribunal, I shall pay the entire amount and/or adjusted which I have received from the appellant under the provision of Section 17(B) of the Industrial Dispute Act, 1947, In any event of the matter the alleged contemnor is not in employment since a long time and as such he is entitled to payment of last drawn wages under Section 17B of the Industrial Dispute Act, 1947 which payment was condition precedent for granting initial stay of the operation of the award as would be evident when this order dated 08.10.2002 passed by His Lordship the Honble Justice Pranab Kumar Chattopadhyay. The said amount can be very will adjusted against arrear of this amount payable under Section 17B of the said Act.
However, in the opposition the assets figure is disputed by contending, inter alia, that the alleged contemnor has sufficient fund, but no particulars given. Having regard to the fact that the alleged contemnor is very candid to his submission that due to paucity of money, he is not in a position to refund and he has given undertaking to refund it in the event he is successful to resist quashing of the award impugned in the writ proceeding. Having regard to the contention made in different paragraphs as quoted and particularly, considering the unconditional apology coupled with the financial crisis as is being faced by the alleged contemnor, I am of the considered opinion that the alleged contemnor has satisfied the tests as required to conclude that the alleged violation is not deliberate and willful.
On the basis of financial crisis as depicted in details in the respective affidavits and the supplementary affidavit, which are quoted above, I am of the view that there is no willful and deliberate violation of the order. Having regard to such, since condition precedent to impose punishment in a contempt proceeding is satisfaction of willful and deliberate violation of Courts order, no punishment could be imposed in this case despite the fact that there is a violation of the Courts order.
The learned Advocate for the applicant relying upon two judgments passed in the case of Md. Kasem Ali Mondal vs. Shri Ajoy Rande & Ors. reported in 2000 (1) CHN 543 and in the case of Ranjit Kumar Halder vs. State of West Bengal & Ors. reported in (2006) I Cal LT 355 (HC), however, has submitted that in the contempt jurisdiction Court may pass further order being an ancillary order with reference to the main order. There is no doubt of that principle of law, but in the instant case, I am not inclined to pass such order. Considering the contention made by the learned Advocate for the applicant and having regard to the submissions and contentions made in the respective affidavits as quoted above wherein the contemnor has bind himself to refund the amount in the event he becomes successful in the pending writ proceeding, I am of the view that once he has given an undertaking, he must follow the undertaking in the event he becomes successful in the writ proceeding and present applicant in the contempt application may take appropriate steps or proceeding for execution of the order passed by us in appeal in accordance with law.
It is made clear that whether the applicant will proceed further for execution or not, that is the choice of the applicant and I am not deciding that issue in the present contempt application.
Having regard to the aforesaid findings and observations, though I hold that the alleged contemnor has breached the order passed by us, but no punishment under Section 12 of the Contempt of Courts Act, 1971 could be passed since it is not willful or deliberate. On the facts and circumstances as stated above, the contempt application, accordingly, stands disposed of.
Urgent certified photocopy of this order be made available to the parties, if applied for, upon compliance of all requisite formalities.