1995 Supreme(Guj) 477

Gujarat High Court
Judgename :R.R.Jain, S.M.SONI
GIRISHCHANDRA R.BHATT - Appellant
Versus
DINESHBHAI N.SANGHVI,principal,sanghvi PRIMARY SCHOOL - Respondent
MISC.CIV.APPLN. 1949 of 1994
Decided On : 12/18/1995

Headnote:(a) Contempt of Courts Act, 1971 - Sec. 2(b) - Civil contempt - Scope of - Non-compliance with impugned order in absence of any stay by Supreme Court amounts to contempt of Court - Intention to file special leave petition does not emolliate the situation and absolve the respondents from their duty to comply with the orders passed by Tribunal - However receiving & considering all the facts court finds that there is disobedience on the part of management but it can be said to be wilful & therefore, case of petitioners does not fall within the purview of contempt of court.In Court opinion, when there is no stay either granted by the Single Judge or by the Division Bench in LPA, it cannot be said that non- compliance of the order is not a disobedience. Intention to file Special Leave Petition does not absolve the respondents from their duty to comply with the order passed by the Tribunal. It was the duty of the respondents to obtain necessary stay, for which they failed in the High Court before Single Judge as well as Division Bench. In absence of such stay, non-compliance amounts to disobedience. Therefore, we hold that non-compliance of the order by the respondents is disobedience. Special Leave Petition is not a right under any statute. A party may or may not file S.L.P. We are, therefore, of the opinion that non-compliance of the order by the respondents is disobedience.[Para 59]It is further contended by learned Advocate for the respondents that in any view of the reading of the matter, the disobedience alleged cannot be said to be wilful as required under clause (b) of Sec. 2 of the Contempt of Courts Act. It is stated at the Bar that number of matters by way of Special Leave Petitions are pending before the Supreme Court, wherein identical questions are raised. Identical questions, as we are informed, are pertaining to whether the scale as ordered by the Tribunal can be given or not ?[Para 65]If any confusion has arisen in the mind of the respondents that such a statement continues, it cannot be said to be ill-founded. If the orders are not complied with in view of such a state of situation as to the statements, we would not like to call or hold that non-compliance of the order is wilful one. It is also clear that whatever be the judgmet in that S.L.P. would decide the policy for the Government and will be binding on all the primary schools whether they have challenged that order or they have approached the Supreme Court by way of S.L.P. or not in view of the mandate of Art. 141 of the Constitution of India. Keeping this in mind, we are of the view that disobedience, though it is, it cannot be said to be a wilful one as the management is prosecuting legally the remedy available to them and they are awaiting for the order of the Supreme Court.[Para 66](b) Contempt of Courts Act, 1971 - Secs. 2(b), 20 - Civil Contempt - Initiation of proceedings within period of one year - Order of which non-compliance is alleged is dated 16.8.94 and contempt application was filed on 6.10.94 - Court ordered to issue notice on 10.10.1994 and rule came to be issued on 15.9.95 - Held in the case issue of notice on 10.10.1994 was after application of mind & therefore, amounts to initiation of proceedings within the meaning and time prescribed under Sec. 20 of the Act - Objection raised on behalf of respondent as such having no force rejected.In the present case, the order, of which non- compliance is alleged, is dated 16.8.94, which became effective immediately from the next date. This contempt application is filed on 6.10.94. This court has ordered to issue notice on 10.10.94 and rule came to be issued on 15.9.95. Question to be considered is whether the action under the Contempt of Courts Act can be said to have been initiated from the date of issuance of notice or rule ? There is no dispute that contempt proceedings cannot be initiated by court after the expiry of a period of one year from the date of the alleged commission of act of contempt. There is no dispute of the fact that the action is required to be initiated after application of mind to the facts placed before the court. In the present case, application is filed, stated all the facts alleging that respondents have committed contempt of court. This court on 10.10.94 ordered to issue notice.[Para 52]The court did apply its mind and has ordered to issue notice on 10.10.94 and this amounts to initiation of proceedings within the meaning and time prescribed under sec. 20 of the Act. Thus, we do not find any substance in this contention.[Para 55](c) Statute - Incorporated in another statute - Scope of - Same must be read as part of that statute - Rules & procedure order made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act - Primary Education Act & Procedure order made there under as such constitute a self contained code and should be read as such.When a statute is incorporated in another one, the same is required to be read as if it is a part of that statute. Rules or Procedure Order made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act and are to be judicially noticed for all purposes of construction or obligation. The statutory Rules cannot be described as or equated with administrative directions. The Primary Education Act and the Procedure Order made thereunder constitute a self contained Code providing for resolving the disputes between the teacher and the management of a recognised primary school. It is well accepted legislative practice to incorporate by reference if the legislature so chooses the provisions of some other Act in so far as they are relevant for the purpose and in furtherance of the scheme and object of that Act.[Para 42](d) Contempt of Courts Act, 1971 - Sec. 10 - Jurisdiction of High Court - Contempt of Gujarat Primary Education Tribunal - Education Tribunals have power to give decisions or definitive judgments which had finality and authoritativeness and therefore, they are judicial pronouncements - Said Tribunals are therefore Courts subordinate to High Court and in case of contempt of said Tribunals High Court has power & jurisdiction to punish under the Act.It is clear that despite the judicial pronouncement by the Labour Court, Tribunal or National Tribunal, power lies with the appropriate Government to reject or modify the same. When the power is lying with the Government to reject or modify the award given by Labour Court, Tribunal or National Tribunal, it cannot be said that the award has a finality or authoritativeness. Finality and authoritativeness are the essential tests of a judicial pronouncement. In view of this fact, it appears that the Supreme Court in The Alahar Co-operative Credit Service Society vs. Shyam Lal, 1995 (2) GLH 550 has held that Labour Court is not a court subordinate to the High Court under Secs. 2 and 10 of the Contempt of Courts Act.[Para 19]If the award can be either rejected or modified by some authority, then it cannot be said that the award has either finality or authoritativeness and it appears that the Supreme Court while considering Alahars case (Supra) had this in mind. If we consider the award passed by the Tribunal in the instant case and the awards of the other Tribunals of educational institutions, it is clear that once the award is declared and modified by the High Court in exercise of its supervisory jurisdiction or under its original jurisdiction, it has its finality and authoritativeness. There is no agency, be it under statute, like appropriate Government intervening under the I.D. Act. We are, therefore, of the opinion that in light of this fact of interference of the appropriate Government, when the award of the Labour Court, Industrial Tribunal or National Tribunal has no finality or authoritativeness, it must have been held to be not a court subordinate to the High Court. Court, therefore, hold that the `Tribunal of the educational institutions are court subordinate to the High Court and `Tribunal in the instant case is a court subordinate to High Court.

       [Para 21](e) Legislation - Providing adjudication & deciding rights of the parties - Must be held to have provision or power inherent in the authority to enforce its orders - In absence of any specific provision in the Education Act, 1986 - Clause 14 of Gujarat Primary Education Tribunal (Procedure) Order, 1987 read with Clause (d) of Sub-sec. (8) of Sec. 40-F of the Act gives sufficient indirection that except the procedural aspect provided in Clauses 1 to 13 of the order rest of the Civil Procedure Code is made applicable to enforce rights determined by Tribunal.We are of the view that there can be no legislation providing adjudication and deciding the rights of the parties without any provision to enforce the same. We would like to say that it is inherent in the authority to enforce its own Order, if it is authorised by the legislation to decide or adjudicate and pass the same. We are, therefore, of the opinion that in absence of any specific provision in Chapter VII-B of the Bombay Primary Education (Gujarat Amendment) Act, 1986 read with Procedure Order 1987 for the enforcement of the rights that may be decided by the Tribunal, can there be any provisions from which we can read or spellout right to enforce the same ? We are of the opinion that if Clause 14 of the Procedure Order is read with Clause (d) of Sub-sec. (6) of Sec. 40F, the only inference which can be drawn in that except the procedural aspect provided in Clauses 1 to 13, rest of the Civil Procedure Code is made applicable which also includes enforcement of the right determined by the Tribunal. We mean to say that provisions of Civil Procedure Code be read in Procedure Order as if provided therein.[Para 27]