Full Judgment Text
$~ 1-9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : 17.07.2013
+ W.P.(C) 2285-93/2013 and C.M. Appln. Nos.4327/2013, 4329/2013,
4331/2013, 4333/2013, 4335/2013, 4338/2013, 4340/2013, 4342/2013
& 4344/2013
THE HONG KONG AND SHANGHAI BANKING
CORP LTD ..... Petitioner
Through: Mr. Sumit Bansal, Mr. Ateev Mathur,
Mr. Rajnish Gaur, Ms. Sumi Anand
and Ms. Richa Oberoi, Advocates
versus
ANJU BALA GUPTA & OTHERS ..... Respondents
Through: Mr. Om Prakash Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
JUDGMENT
VIPIN SANGHI, J. (ORAL)
1. The petitioner has preferred the present writ petition to assail the
order dated 14.03.2013 passed by the Presiding Officer Dr. R.K. Yadav of
the Central Government Industrial Tribunal cum Labour Court I, New Delhi
(CGIT/Tribunal).
2. A little background of the relevant facts is necessary. The respondent
was employed with the petitioner on 01.11.1978. The petitioner came out
with a Voluntary Retirement Scheme (VRS) on 01.07.2003. The respondent
opted for voluntary retirement under the said scheme and was relieved from
Page 1 of 22
service on 31.08.2003.
3. The lump sum amounts payable to the respondent was paid by the
petitioner bank. She has also been receiving her pension from the petitioner.
Much after the respondent had severed her relationship with the petitioner
bank, the management of the petitioner bank entered into a Bipartite
Settlement with the employees on 02.06.2005. However, the same was
applicable w.e.f. 01.11.2002. Accordingly, the petitioner bank paid the
arrears of the difference between the salary already received by the
respondent and the revised salary, as well as the component of gratuity and
provident fund on the basis of the revised salary. However, the respondent
was not granted any revision of pension, or arrears on that account which is
what lead her to prefer her petition under Section 33-C (2) of the Industrial
Disputes Act, 1947 (The Act) before the CGIT.
4. The petitioner raised the preliminary objection to the maintainability
of the said petition on the ground that there was no pre-existing right on the
basis of which the said petition had been preferred. It was claimed that for a
petition to be maintainable under Section 33-C(2) of the Act, it was
necessary that there existed a prior adjudication or settlement of a claim.
The CGIT does not function as an Adjudicating Authority while dealing
with a petition under Section 33C(2). Rather, it functions like an Executing
Court. The preliminary objection raised by the petitioner before the CGIT
was that the respondent was seeking to re-write the terms of the VRS offered
by the petitioner bank in the year 2003 under which the respondent had
derived the benefits. It was submitted that the CGIT, in any case, could not
have adjudicated upon the said claim under Section 33C(2).
Page 2 of 22
5. The CGIT framed the issues on 14.11.2011. After framing three
issues, the CGIT observed as follows:
“On the written statement, objections are taken that claims
under various heads are not based on existing rights. Those
objections are incidental to issue No.1 and would be
adjudicated while answering that issue. The management may
raise those propositions at the time of arguments and no issue
is required to be settled on those objections.”
Thereafter the matter was adjourned for evidence being led by the
parties.
6. It appears that the petitioner also moved an application on 02.12.2011
before the CGIT for the issue with regard to maintainability of the
respondent’s petition being decided. While dealing with this application on
23.12.2011, the CGIT made the following observation:
“It is a settled proposition of law that the claimant is not
entitled to get his disputed claims settled, by way of petition
under section 33-C(2) of the Industrial Disputes Act, 1947 (in
short the Act). It is pointed out to Shri Gupta that disputed
claims are beyond the purview of Section 33-C(2) of the Act
and would be discarded at the time of final adjudication. The
management is also assured that the claims which are not
maintainable would not and cannot be taken for adjudication.”
7. From the above it appears that the CGIT recognised the position that,
at least a part of the grievances raised in the respondent’s petition were
beyond the scope of enquiry permissible in proceedings under Section 33-
C(2) of the Act. An assurance was also given to the petitioner that such of
the claims which are beyond the pale of Section 33-C(2), shall not be taken
up for adjudication.
Page 3 of 22
8. On or about 19.06.2012, the respondent moved two applications – one
for leading additional evidence and the other for production of additional
documents by the petitioner. These applications were opposed by the
petitioner and were disposed of, by the two orders of the same date, i.e.,
19.07.2012. In the operative part of the order dated 19.07.2012 passed on
the respondent’s application for production of documents by the petitioner,
the CGIT directed as follows:
“16. In view of reasons detailed above, it is ordered that
claimant is not entitled for details of break up of amount paid in
2005 to other similarly placed employees as well as Gratuity
Rules. His request for supply of these documents cannot be
granted. However, request for production of the documents,
other than break up amount paid to similarly placed employees
for the year 2005 and Gratuity Rules, is to be accepted. Bank,
therefore, is called upon to produce those documents on the
next date of hearing positively. With these observations,
application stands disposed off. Announced in open court on
19.07.2012.”
9. At that stage, the petitioner approached this court by filing W.P.(C.)
No.5832/2012. The grievance of the petitioner was that the respondents
application under section 33C(2) was, itself, not maintainable and, therefore,
the petitioner could not be directed to produce documents and furnish
information as sought by the respondent. Detailed submissions were made
by the parties with regard to the scope of the proceedings under section
33C(2) of the Act. The claims made by the respondent under that provision
before the CGIT were also examined-claim by claim. The grievances raised
by the respondent were also examined one by one.
Page 4 of 22
10. After considering the scope of the proceedings under section 33C(2)
of the Act, in the light of the judgment of the Central Inland Water
Transport Corporation Limited Vs. The Workmen and Another , (1974) 4
SCC 696 , this Court held as follows:
“26. …. …. As to whether or not the mere revision of pay
scale and payment of arrears of pay, gratuity and provident
fund would also call for revision of pension – particularly in the
face of Clause 13 and Clause 3 of the General Terms &
Conditions as extracted above, is an issue which would need
adjudication. Similarly, whether there is discrimination and, if
so, whether it is actionable, are issues which require
adjudication. So as not to prejudice the case of either of the
parties, this Court is refraining from making any comment on
the same at this stage. However, there can be no doubt that the
relief sought by the respondent is premised on the annulment of
Clause 13 and Clause 3, as aforesaid. In the teeth of these
clauses, the relief of revision of pension certainly cannot be
granted. The said dispute raised by the respondent would
require independent adjudication. The respondent has itself
stated in her petition that Clause 3 has become redundant in
view of her submissions made in the petition. This clearly
shows that the respondent is seeking to justify her claim not on
the terms & conditions of the settlement, but de hors and, rather
contrary to the said terms & conditions. The aforesaid issues
raised by the respondent can certainly not be said to be
incidental to the VRS/settlement between the parties. It cannot
be said that the respondent is merely seeking to execute or
enforce the settlement through the process under Section 33-
C(2) of the Act. The respondent is, in fact, seeking to establish
her right to relief by raising the aforesaid issues and is also
seeking the determination of the issue of the petitioner’s
corresponding liability. These are well beyond the scope of an
incidental enquiry that may be undertaken in enforcement or
execution proceedings in respect of a pre-determined right in a
settlement or adjudication.
Page 5 of 22
27. Pertinently, the CGIT has appreciated this aspect – as is
evident from the order dated 23.12.2011 extracted above.
However, the CGIT has not separated the claims/issues which
fall within the scope of an enquiry under Section 33-C(2) and
those which fall beyond it. In my view, this is a fallacious
approach because, by not doing so, further enquiry/proceedings
for leading additional evidence/production of documents would
unnecessarily be undertaken even in respect of issues/claims
which fall beyond the scope of enquiry under Section 33-C(2) of
the Act. The approach of the CGIT could not be to gather
evidence/information even beyond the scope of the enquiry
before it, and then to discard a part of it later. The CGIT
should not have postponed the segregation of the issues/claims
beyond its jurisdiction under Section 33-C(2) but dealt with the
said objection at the earliest to limit the scope of its enquiry to
cover those aspects which fall within its jurisdiction. Of
course, if there is an aspect on which a firm view cannot be
taken, i.e., whether, or not, it falls within the scope of enquiry
under Section 33-C(2) of the Act, without evidence being
recorded, the CGIT should observe so and in that eventuality, it
may postpone the determination of the issue of jurisdiction till
after the evidence is recorded. However, this aspect should
receive consideration from the Tribunal at the earliest so as to
curtail unnecessary proceedings, expense of time and expense.
28. There are a couple of aspects which appear to fall within
the scope of the enquiry permissible under Section 33-C(2) of
the Act. I now proceed to deal with them.
29. The first grievance of the respondent stems out of the
settlement inasmuch, as, the respondent is seeking information
with regard to the detailed break up of the amounts computed
and paid by the petitioner at the time when she was granted
VRS. There can be no doubt that the respondent is entitled to
the said information.
30. Similarly, her grievance number six, as aforesaid, in
relation to the manner in which TDS has been deducted from
the amount already been paid to her or being paid to her,
Page 6 of 22
appears to be justified and the petitioner cannot deny the said
information.
31. As noticed above, the seventh grievance is a general
grievance in relation to which there can be no general
direction. However, all the other grievances raised by the
respondent stem out of her primary submission that Clauses 13
& 3 of the VRS/settlement do not bind her. As aforesaid, these
are grievances which cannot be remedied under Section 33-
C(2) of the Act and the respondent would have to, if she is so
advised, seek a reference of the said disputes under Section 10
of the Act.
32. Accordingly, I dispose of this petition in the aforesaid
terms with the direction that the CGIT shall examine the claim
for production of documents by the petitioner in the light
thereof .”
11. The aforesaid judgment dated 01.02.2013 in W.P.(C.) No.5832/2012
was placed before the CGIT on 07.02.2013. Thereafter, the impugned order
has come to be passed. I consider it appropriate to reproduce the impugned
order in its entirety. The same reads as follows:
“ Information is furnished by the management to the claimant,
in pursuance of order dated 01.02.2013 passed by High Court
of Delhi. Shri Gupta presents that on supply of the above
information, nothing remains to be computed in terms of money
in favour of the claimant. Shri Sharma dispels the submissions.
I have gone through the petition, moved under section 33-C(2)
of the Industrial Disputes Act, 1947 (in short the Act), written
statement filed by the management and order dated 01.02.2013
passed by High Court of Delhi. In the claim statement in
grievance No. 4 a claim is made for revision of pension, on
th
enhancement of pay in terms of clause (5) of 7 Bipartite
Settlement. Enhancement of pay of the claimant, with
retrospective effect, is not a matter of dispute. Arrears have
already been paid. But her pension was not enhanced. In its
Page 7 of 22
written statement, the management claims that such a claim
requires adjudication, which is not permissible under the
provisions of section 33-C (2) of the Act.
In its order dated 1.2.2013 High Court of Delhi considered the
issue as to what information is to be furnished by the
management to the claimant. The High Court was hearing a
writ petition against the order dated 19.07.2012, on the
strength of which this Tribunal commanded the management to
produce documents, detailed in that order. During the hearing
of that petition, the High Court considered the petition under
section 33-C (2) of the Act and written statement filed by the
management. Scope of powers of this Tribunal, while dealing
with a petition under section 33-C (2) of the Act was also noted
by the High Court. There is no two opinion that a workman
cannot put forward a claim in a petition under section 33-C (2)
of the Act, which is not based on an existing right, that is to say
already adjudicated upon or provided for and must arise in the
course of and in relation to the relationship between an
industrial workman and his employer.
While adjudicating the writ petition, the High Court noted
that since claim for revision of pension was disputed one it
cannot be adjudicated in the present petition, moved under
section 33-C (2) of the Act. For reaching that conclusion, the
High Court noted the facts projected before it by the
management. Wrong facts were placed before the High Court
by the management with a view to mislead the Court. In para
18 of the petition, the claimant gives the list of the persons,
whose pension was revised by the management despite the fact
that they also took VRS under the very scheme, which was
opted by the petitioner/claimant. In its written statement, the
management adopted an eerie silence on those facts. The
management opted not to speak about the case of those seven
employees who sought VRS under the scheme and
subsequently their pension was revised. By its stand taken,
the management is deemed to have admitted those facts.
When these facts are taken into consideration, it emerges that
Page 8 of 22
the claim of “revision of pension” was already provided for.
The High Court was misled when it recorded facts, in the
above order, to the effect that claim for revision of pension
was disputed one. In order, referred above, reasoning detailed
was based on wrong facts, placed by the management.
Therefore, it is apparent that claim of “revision of pension” is
already provided for and falls within the ambit of section 33-C
(2) of the Act. Hence submissions of Shri Gupta, that nothing
remains to be adjudicated in the matter, are uncalled for .”
(emphasis supplied)
12. The submission of Mr. Bansal, learned counsel for the petitioner is
that the impugned order flies in face of the inter partes judgment of this
court dated 01.02.2013, which has attained finality as the parties have
accepted the same. He submits that the impugned order is completely
contrary to the judgment of this court, whereby this court had allowed the
tribunal to proceed only in respect of two aspects of the respondents
grievances, which stemmed out of the settlement between the parties. The
first was with regard to the respondent seeking information about the
detailed breakup of the amount paid by the petitioner at the time when she
was granted VRS, and the second was in relation to the manner in which
TDS had been deducted from the amount already paid to the respondent, or
being paid to her. It is only in respect of these two aspects that the court had
held that the proceedings under section 33C(2) of the Act were
maintainable. In respect of all other grievances and claims, this court had
concluded that those grievances and claims could not be raised in
proceedings under section 33C(2) of the Act, since the said grievances and
claims required adjudication, whereas the proceedings under section 33C(2)
of the Act are in the nature of execution proceedings.
Page 9 of 22
13. Mr. Bansal submits that, with a view to overreach the judgment of this
court, the CGIT has observed that “ wrong facts were placed before the High
Court by the management with a view to mislead the court ”. The CGIT
further observed that in para 18 of the claim petition preferred by the
respondent under section 33C(2) of the Act, the claimant has given the list
of persons whose pension was revised by the management despite the fact
that they also took VRS under the very same scheme which was opted for by
the respondent/claimant. Learned counsel submits that it was not for the
CGIT to conclude that any wrong facts were placed before this court or
accepted by this court, while rendering its decision on 01.02.2013 in
W.P.(C.) No.5832/2012. The said judgment was passed after hearing the
counsel for both sides, and the parties had accepted the decision of this
Court. The respondent had not assailed the decision dated 01.02.2013 either
in review or in appeal, much less on the ground that this Court had been
“misled” by the Petitioner into giving the said decision.
14. Mr. Bansal submits that assuming that the respondent was not
satisfied with the judgment dated 01.02.2013 in W.P.(C.) No.5832/2012, it
was for the respondent to assail the said judgment in appeal. The respondent
accepted the said decision, and did not assail the same. Learned counsel
points out that this court has specifically dealt with the grievance of the
respondent of her being discriminated in para 26 of the judgment dated
01.02.2013, by observing:
“ Having heard learned counsel for the parties, I am of the view
that the grievance of the petitioner with regard to the
maintainability of the respondent’s petition under Section 33-
C(2) largely is well-founded. What the respondent is seeking by
Page 10 of 22
filing the said petition, primarily, is to seek the annulment of the
terms & conditions of the VRS/settlement – particularly Clause
13 and Clause 3 of the General Terms & Conditions, as set out
hereinabove. The respondent is seeking the said annulment,
inter alia, on the basis of subsequent Bipartite Settlement,
whereby the pay scales were revised retrospectively from the
date when the respondent was still in service. As to whether or
not the mere revision of pay scale and payment of arrears of
pay, gratuity and provident fund would also call for revision of
pension – particularly in the face of Clause 13 and Clause 3 of
the General Terms & Conditions as extracted above, is an issue
which would need adjudication. Similarly, whether there is
discrimination and, if so, whether it is actionable, are issues
which require adjudication. So as not to prejudice the case of
either of the parties, this Court is refraining from making any
comment on the same at this stage. However, there can be no
doubt that the relief sought by the respondent is premised on
the annulment of Clause 13 and Clause 3, as aforesaid. In the
teeth of these clauses, the relief of revision of pension certainly
cannot be granted. The said dispute raised by the respondent
would require independent adjudication. The respondent has
itself stated in her petition that Clause 3 has become redundant
in view of her submissions made in the petition. This clearly
shows that the respondent is seeking to justify her claim not on
the terms & conditions of the settlement, but de hors and, rather
contrary to the said terms & conditions. The aforesaid issues
raised by the respondent can certainly not be said to be
incidental to the VRS/settlement between the parties. It cannot
be said that the respondent is merely seeking to execute or
enforce the settlement through the process under Section 33-
C(2) of the Act. The respondent is, in fact, seeking to establish
her right to relief by raising the aforesaid issues and is also
seeking the determination of the issue of the petitioner’s
corresponding liability. These are well beyond the scope of an
incidental enquiry that may be undertaken in enforcement or
execution proceedings in respect of a pre-determined right in a
settlement or adjudication .”
Page 11 of 22
15. Mr. Bansal points out that the observations made by the CGIT that in
its written statement the petitioner management had adopted an eerie silence
in respect of the allegation of the discrimination are also contrary to the
record. Reference has been made to the written statement of the petitioner
management filed before the CGIT and in particular para 2 of the
preliminary objections and the parawise reply to para 5.4. Para 2 of the
preliminary objections reads as follows:
“ It may further be noted that at the time when VRS Scheme was
implemented, some of the employees who opted for VRS were
already vested with the right of pension and some of the
employees who opted for VRS were not vested with the right of
pension. All such employees who were vested with the right of
pension at the time of VRS and when granted VRS are enjoying
the benefit of revision of pension, as well, but, the employees
who were not vested with pension but were still given the
pensionary benefits by way of the terms of VRS, will not be
entitled for any revision or other benefits. A complete reading
of the scheme of VRS will make it abundantly clear that the
employees who were not vested with the right of pension should
not have claimed the re-computation or revision of the pension
at any future date or time. ”
16. The relevant extract from para 5.4 of the parawise reply reads as
follows:
“ The details of the various individuals which have been given
vide para 5.4, and the amounts mentioned against them are
incorrect and not borne out by records. No such amount, as
indicated, was paid to them and moreover, these persons are
differently placed than the petitioner. Therefore, the element of
discrimination which is being raised is misplaced and without
any basis. The amounts mentioned against each one of them
are not admitted to be correct .”
Page 12 of 22
17. Mr. Bansal points out that there was no basis for the CGIT to
observe that the management did not speak about the case of the seven
employees who sought VRS under the scheme and subsequently their
pension was revised. There was no basis to conclude that the reasoning was
based on wrong facts alleged by the respondent/claimant. In any event, once
this court had confined the scope of the enquiry before the CGIT under
section 33C(2) of the Act, it was not open to the tribunal to expand the scope
on its own. Learned counsel submits that in the second last paragraph of the
impugned order, once again the tribunal has observed that “the High Court
was misled when it recorded facts, in the above order, to the effect that
claim for revision of pension was disputed one. In order, referred above,
reasoning detailed was based on wrong facts, placed by the management.”
18. Mr. Bansal also submits that the conduct of the CGIT in passing the
impugned order tantamounts to criminal contempt as defined in section 2(c)
of the Contempt of Courts Act, 1971, (CCA in short) which is, inter alia,
defined to mean doing of any act whatsoever which interferes or tends to
interfere with or obstruct or tends to obstruct, the administration of justice in
any manner.
19. Mr. Bansal submits that under section 16 of the CCA, a judge,
magistrate or any person acting judicially shall also be liable for contempt of
his own court, or any other court in the same manner as any other individual
is liable under the provisions of the CCA, as far as applicable.
20. Mr. Bansal submits that the impugned order is a result of blatant and
conscious disobedience of the judgment of this court by the CGIT. Despite
Page 13 of 22
a clear direction of this court to limit the scope of enquiry under section
33C(2) of the Act to only two aspects, the CGIT has sought to expand its
scope, even though this court had disapproved of the earlier action of the
CGIT in undertaking an enquiry into aspects which fell beyond its scope
under section 33C(2) of the Act. Learned counsel submits that the conduct
of the CGIT is such is to mar the rule of law and the discipline that all
subordinate Courts and tribunals are bound to follow by obeying the orders
and judgments passed by this court. He submits that under Article 227 of
the Constitution, this court exercises superintendence and supervisory
jurisdiction over all courts and tribunals which are subordinate to it, which
includes the CGIT.
21. Mr. Bansal has also drawn my attention to Article 215 of the
Constitution which states that every High Court shall be a court of record,
and shall have all powers of such court, including powers to punish for
contempt of itself. In this regard, reliance is placed on the decision of this
court in Deepak Khosla v. Union of India & Ors. , 173 (2010) DLT 41
(DB). He submits that by virtue of section 15 of the CCA, this court can
take action on its own motion as well, in the case of criminal contempt. He
submits that this court should, while disposing of the writ petition on merits,
after taking cognizance of the contempt committed by the Tribunal, refer the
criminal contempt committed by the tribunal to a Division Bench of this
court.
22. Mr. Bansal has also referred to several decisions in support of his
aforesaid submissions. He has drawn my attention to Sh. Baradakanta
Mishra v. Sh. Bhinsen Sen Dixit , AIR 1972 SC 2266, where the Supreme
Page 14 of 22
Court quoted the extract from the earlier decision in East India Commercial
Co. Ltd. v. The Collector of Customs, Calcutta , AIR 1962 SC 1893. Mr.
Bansal has specifically relied upon the following extract from the said
quotation:
“It would be anomalous to suggest that a tribunal over which
the High Court has superintendence can ignore the law
declared by that court and start proceedings in direct violation
of it. If a tribunal can do so, all the subordinate courts can
equally do so, for there is no specific provision, just like in the
case of Supreme Court, making the law declared by the High
Court binding on subordinate courts. It is implicit in the power
of supervision conferred on a superior tribunal that all the
tribunals subject to its supervision should conform to the law
laid down by it. Such obedience would also be conducive to
their smooth working; otherwise there would be confusion in
the administration of law and respect for law would
irretrievably suffer.”
23. The Supreme Court proceeded to observe as follows in the said
decision:
“ 17. Our view that a deliberate and a mala fide conduct of not
following the binding precedent of the High Court is
contumacious does not unduly enlarge the domain of contempt.
It would not stifle a bona fide act of distinguishing the binding
.”
precedent, even though it may turn out to be mistaken
24. Mr. Bansal submits that the Supreme Court has held in B.K. Brar v.
Hon’ble the Chief Justice & his companion Judges of the Orissa High
Court & Ors. , AIR 1961 SC 1367 that to constitute contempt of court, it is
necessary to show that the subordinate court intentionally disobeyed the
order of the superior court. Mr. Bansal submits that disobedience of the
judgment of this court by the CGIT is clearly intentional, since the CGIT
Page 15 of 22
was aware and discusses the said decision in the impugned order. Despite it
being clearly directed that the enquiry under section 33C(2) of the Act shall
be restricted only to two aspects, the CGIT seeks to enlarge the scope of the
said proceedings by labelling the submission of the petitioner before this
court as misleading and by observing that this court had been misled. He
submits that the present is not a case where the CGIT was not aware of the
judgment of this court or that there was any scope for any doubt about the
interpretation of the said judgment.
25. Mr. Bansal has also placed reliance on the decision of the Madras
High Court in B. Ramalingam - suo motu contempt petition No.782/2005,
2006 (1) CCC 165 (Mad). After referring to several decisions of the
Supreme Court and the High Courts, the Division Bench issued the
following directions:
“ 24. The following are the directions:
(I) When a position, in law, is well settled as a result of
judicial pronouncement of this Court, it would amount to
judicial impropriety to say the least, for the subordinate
Courts to ignore the settled decisions rendered by High Courts
and the Supreme Court and then to pass a judicial order which
is clearly contrary to the settled legal position. Such judicial
adventurism should be avoided.
(II) Judicial restraint and discipline are as necessary to
the orderly administration of justice as they are to the
effectiveness of the army. The duty of restraint, the humility
of function should be a constant theme of Judges. Judicial
restraint in this regard might better be called judicial
respect; that is, respect by the judiciary.
(III) If subordinate judiciary refuses to carry out the
Page 16 of 22
directions given to it by the superior judiciary in the
exercise of its appellate or revisional powers, the result will be
chaos in the administration of justice. The appellate
jurisdiction inherently carries with it a power to issue
corrective directions binding on the forum below. Failure on
the part of latter to carry out the directions or show disrespect
to the propriety of such directions would be destructive
hierarchical system in administration of justice. The seekers of
justice and the society would lose faith in both. The
subordinate judiciary must bear in mind for ever.
(IV) Any discourtesy shown by the subordinate Courts to a
superior Court is bound to involve them in proceedings for
contempt. No subordinate Court is entitled to demand of
the superior Court the law under which the order has been
passed before complying with it. They should strictly comply
with the order of High Court and Supreme Court both in
letter and spirit. It must be understood by all concerned that
any discourtesy or disobedience shown to the orders of
superior courts will be visited by this Court with the severest
penalties.
(V) In the hierarchical judicial system, it is not for any
subordinate court to tell a superior court as to how a matter
should be decided when an appeal is taken against its decision
to that superior court. Such a course would be subversive of
judicial discipline on the bedrock of which the judicial system is
founded and finality is attached and orders are obeyed.
(VI) Judicial system requires that clear pronouncements by
the High Court, about what the law on a matter is, must be
treated as binding on all the subordinate courts. Where the
High Court has stated that the law laid down in a particular
case is the applicable law, it is not open to the subordinate
court to consider or rely on any supposedly conflicting
decisions from any other High Court, our High Court's decision
is binding on all the subordinate judiciary in Tamil Nadu and
Pondicherry.”
Page 17 of 22
26. Mr. Bansal submits that by passing the impugned order, the CGIT has
made a mockery of judicial process, which would have its pernicious
influence beyond the parties, and affect the interest of the public in the
administration of justice. He places reliance on the following observation
made by the Supreme Court in Advocate General, State of Bihar v. Madhya
Pradesh Khair Industries & Anr. , (1980) 3 SCC 311:
“While we are conscious that every abuse of the process of the
court may not necessarily amount to contempt of court, abuse
of the process of the court calculated to hamper the due course
of a judicial proceeding or the orderly administration of justice,
we must say, is a contempt of court. It may be that certain
minor abuses of the process of the court may be suitably dealt
with as between the parties, by striking out pleadings under the
provisions of Order 6 Rule 16 or in some other manner. But, on
the other hand, it may be necessary to punish as a contempt, a
course of conduct which abuses and makes a mockery of the
judicial process and which thus extends its pernicious influence
beyond the parties to the action and effects the interest of the
public in the administration of justice. The public have an
interest, an abiding and a real interest, and a vital stake in the
effective and orderly administration of justice, because, unless
justice is so administered, there is the peril of all rights and
liberties perishing. The court has the duty of protecting the
interest of the public in the due administration of justice and,
so, it is entrusted with the power to commit for contempt of
court, not in order to protect the dignity of the court against
insult or injury as the expression “Contempt of Court” may
seem to suggest, but, to protect and to vindicate the right of the
public that the administration of justice shall not be prevented,
prejudiced, obstructed or interfered with. “It is a mode of
vindicating the majesty of law, in its active manifestation
against obstruction and outrage.” [ Per Frankfurter, J. in
Offutt v. U.S.(1954) 345 US 11] “The law should not be seen to
sit by limply, while those who defy it go free, and those who
seek its protection lose hope.”
Page 18 of 22
27. On the other hand, learned counsel for the respondents has sought to
justify the impugned order primarily by seeking to reargue the scope of
section 33C(2) of the Act which already stands adjudicated finally inter se ,
the parties vide judgment dated 01.02.2013. The submission of learned
counsel for the respondent is that the claim for revision of pension arises out
of the eighth bipartite settlement and, therefore, it requires no further
adjudication. He has also tendered in court a compilation of judgments of
which he has only referred to the first judgment in the case of Tata Iron &
Steel Co. Ltd. v. CGIT, Dhanbad & Ors. , 1966 1 LLJ 759, where the High
Court had held that on the question, as to whether the tribunal should not
have disposed of the application on merits under Rule 22 of the Central
Rules was a question of the discretion of the tribunal, and the High Court in
exercise of its extraordinary jurisdiction under Article 226 and 227 of the
Constitution, does not interfere with the exercise of that discretion by the
lower courts or tribunals.
28. Having heard learned counsels for the parties, perused the impugned
award and the judgment of this court in WPC No.5838/2012 dated
01.02.2013, it is abundantly clear to me that the impugned order is patently
laconic and cannot stand scrutiny even for a moment. I have already
extracted herein above the relevant extract from the decision dated
01.02.2013. The said decision shows that the court was conscious of and
applied its mind to the aspect whether the claim for revision of pension on
account of retrospective revision of pay scale and payment of arrears,
gratuity and provident fund could be dealt with in proceedings under section
33C(2) of the Act, or not. The court had observed that the said aspect would
Page 19 of 22
need adjudication, particularly in the face of clauses 13 and 3 of the general
terms and conditions. Pertinently, the respondent had claimed in its
application under section 33C(2) of the Act that clause 3 had become
redundant in view of her submission made in the application/petition.
Therefore, this court had come to the conclusion that it could not be said that
by raising the claim for revision, the respondent was merely seeking to
execute or enforce the settlement through the proceedings under section
33C(2) of the Act. This court had concluded that the respondent was
seeking to establish her right to relief by raising, inter alia, the aforesaid
aspect of revision of pension and also seeking determination of the issue of
petitioners corresponding liability.
29. In the face of the clear findings returned by this court, which have
been accepted by the respondent inasmuch, as, the respondent did not chose
to challenge the judgment dated 01.02.2013, it did not lie in the mouth of the
respondent, much less the tribunal, to claim that the petitioner had misled
this court or that this court had been misled into returning the said finding.
Whether, or not, this court had been misled or erred in returning its decision
could not have been examined by the tribunal, or pronounced upon as done
by it. The said issue could have been raised only in an appeal before a
higher forum. What the CGIT has done is to sit in judgment over the
decision dated 01.02.2013; conclude that the same is a result of the court
being misled, and; to blatantly disregard the same.
30. I also find merit in the petitioners submission that the CGIT while
passing the impugned award has erred on record since it has been observed
that the petitioner has maintained an eerie silence, even though that is not
Page 20 of 22
the position on facts.
31. It is not open to the respondent to seek to reopen the issues concluded
by the judgment dated 01.02.2013 in the process of defending the impugned
order as sought to be done by her. I, therefore, reject the submission of
learned counsel for the respondent that the claim for revision of pension
stemmed out of the bipartite agreement, and that it required no further
adjudication and it merely required re-computation.
32. Reliance placed on the decision in Tata Iron & Steel (supra) has no
relevance whatsoever. The court, in that case, was primarily dealing with
the issue whether the tribunal had the jurisdiction to dismiss the application
of the employer under section 33(2)(b) of the Act for non prosecution, if the
employer is not present on date on which it is fixed for hearing. The further
question examined by the court was; when that where tribunal has exercised
such jurisdiction, whether the High Court would be justified in interfering
with exercise of such discretion under Article 226 and 227.
33. It is well settled that while exercising its writ jurisdiction, this court
does not sit as an appellate forum to undertake judicial review of quasi
judicial orders. However, it does not preclude this court from exercising its
jurisdiction to interfere with the orders passed by the tribunal and quasi
judicial bodies where it appears to the court that the tribunal has, inter alia,
acted beyond its jurisdiction.
34. The present is clearly a case where the tribunal has exceeded its
jurisdiction and, therefore, interference by this court would not only be
justified but is also called for with a view to keep the tribunal in check,
Page 21 of 22
maintain the rule of law and in the interest of justice. Accordingly, the
impugned order is quashed and set aside. The writ petitions stand disposed
of.
35. The conduct of Dr. R.K. Yadav CGIT who has passed the impugned
order, prima facie, appears to be contumacious in the light of several
decisions relied upon by the petitioner. Prima Facie, it appears that his
conduct not only amounts to civil contempt inasmuch, as, it appears to be
wilful disobedience of the judgment of this court aforesaid, but also amount
to criminal contempt since his conduct may amount to interference with the
administration of justice.
36. I would not like, at this stage, to dwell on this aspect in any greater
detail, since I consider it appropriate to issue notice to Dr. R.K. Yadav,
Presiding Officer, CGIT, requiring him to show cause as to why proceedings
for contempt of the decision dated 01.02.2013 in WP (C) No. 5832/2012 be
not initiated against him. The Registry is directed to appropriately open a
fresh file with the title “Court of its own Motion V. Dr. R. K. Yadav Central
Government Industrial Tribunal-cum-Labour Court No. 1, New Delhi” and
number the same. A copy of the decision dated 01.02.2013 in WP (C)
5832/2012 and the order dated 14.03.2013 passed by Dr. R. K. Yadav be
placed in the said file along with this order, and the same be also served
upon him. The notice be made returnable on 26.08.2013. The Contempt
petition be placed before the appropriate bench as per roster, subject to
orders of Hon’ble the Acting Chief Justice.
VIPIN SANGHI, J.
JULY 17, 2013 sr
Page 22 of 22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : 17.07.2013
+ W.P.(C) 2285-93/2013 and C.M. Appln. Nos.4327/2013, 4329/2013,
4331/2013, 4333/2013, 4335/2013, 4338/2013, 4340/2013, 4342/2013
& 4344/2013
THE HONG KONG AND SHANGHAI BANKING
CORP LTD ..... Petitioner
Through: Mr. Sumit Bansal, Mr. Ateev Mathur,
Mr. Rajnish Gaur, Ms. Sumi Anand
and Ms. Richa Oberoi, Advocates
versus
ANJU BALA GUPTA & OTHERS ..... Respondents
Through: Mr. Om Prakash Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
JUDGMENT
VIPIN SANGHI, J. (ORAL)
1. The petitioner has preferred the present writ petition to assail the
order dated 14.03.2013 passed by the Presiding Officer Dr. R.K. Yadav of
the Central Government Industrial Tribunal cum Labour Court I, New Delhi
(CGIT/Tribunal).
2. A little background of the relevant facts is necessary. The respondent
was employed with the petitioner on 01.11.1978. The petitioner came out
with a Voluntary Retirement Scheme (VRS) on 01.07.2003. The respondent
opted for voluntary retirement under the said scheme and was relieved from
Page 1 of 22
service on 31.08.2003.
3. The lump sum amounts payable to the respondent was paid by the
petitioner bank. She has also been receiving her pension from the petitioner.
Much after the respondent had severed her relationship with the petitioner
bank, the management of the petitioner bank entered into a Bipartite
Settlement with the employees on 02.06.2005. However, the same was
applicable w.e.f. 01.11.2002. Accordingly, the petitioner bank paid the
arrears of the difference between the salary already received by the
respondent and the revised salary, as well as the component of gratuity and
provident fund on the basis of the revised salary. However, the respondent
was not granted any revision of pension, or arrears on that account which is
what lead her to prefer her petition under Section 33-C (2) of the Industrial
Disputes Act, 1947 (The Act) before the CGIT.
4. The petitioner raised the preliminary objection to the maintainability
of the said petition on the ground that there was no pre-existing right on the
basis of which the said petition had been preferred. It was claimed that for a
petition to be maintainable under Section 33-C(2) of the Act, it was
necessary that there existed a prior adjudication or settlement of a claim.
The CGIT does not function as an Adjudicating Authority while dealing
with a petition under Section 33C(2). Rather, it functions like an Executing
Court. The preliminary objection raised by the petitioner before the CGIT
was that the respondent was seeking to re-write the terms of the VRS offered
by the petitioner bank in the year 2003 under which the respondent had
derived the benefits. It was submitted that the CGIT, in any case, could not
have adjudicated upon the said claim under Section 33C(2).
Page 2 of 22
5. The CGIT framed the issues on 14.11.2011. After framing three
issues, the CGIT observed as follows:
“On the written statement, objections are taken that claims
under various heads are not based on existing rights. Those
objections are incidental to issue No.1 and would be
adjudicated while answering that issue. The management may
raise those propositions at the time of arguments and no issue
is required to be settled on those objections.”
Thereafter the matter was adjourned for evidence being led by the
parties.
6. It appears that the petitioner also moved an application on 02.12.2011
before the CGIT for the issue with regard to maintainability of the
respondent’s petition being decided. While dealing with this application on
23.12.2011, the CGIT made the following observation:
“It is a settled proposition of law that the claimant is not
entitled to get his disputed claims settled, by way of petition
under section 33-C(2) of the Industrial Disputes Act, 1947 (in
short the Act). It is pointed out to Shri Gupta that disputed
claims are beyond the purview of Section 33-C(2) of the Act
and would be discarded at the time of final adjudication. The
management is also assured that the claims which are not
maintainable would not and cannot be taken for adjudication.”
7. From the above it appears that the CGIT recognised the position that,
at least a part of the grievances raised in the respondent’s petition were
beyond the scope of enquiry permissible in proceedings under Section 33-
C(2) of the Act. An assurance was also given to the petitioner that such of
the claims which are beyond the pale of Section 33-C(2), shall not be taken
up for adjudication.
Page 3 of 22
8. On or about 19.06.2012, the respondent moved two applications – one
for leading additional evidence and the other for production of additional
documents by the petitioner. These applications were opposed by the
petitioner and were disposed of, by the two orders of the same date, i.e.,
19.07.2012. In the operative part of the order dated 19.07.2012 passed on
the respondent’s application for production of documents by the petitioner,
the CGIT directed as follows:
“16. In view of reasons detailed above, it is ordered that
claimant is not entitled for details of break up of amount paid in
2005 to other similarly placed employees as well as Gratuity
Rules. His request for supply of these documents cannot be
granted. However, request for production of the documents,
other than break up amount paid to similarly placed employees
for the year 2005 and Gratuity Rules, is to be accepted. Bank,
therefore, is called upon to produce those documents on the
next date of hearing positively. With these observations,
application stands disposed off. Announced in open court on
19.07.2012.”
9. At that stage, the petitioner approached this court by filing W.P.(C.)
No.5832/2012. The grievance of the petitioner was that the respondents
application under section 33C(2) was, itself, not maintainable and, therefore,
the petitioner could not be directed to produce documents and furnish
information as sought by the respondent. Detailed submissions were made
by the parties with regard to the scope of the proceedings under section
33C(2) of the Act. The claims made by the respondent under that provision
before the CGIT were also examined-claim by claim. The grievances raised
by the respondent were also examined one by one.
Page 4 of 22
10. After considering the scope of the proceedings under section 33C(2)
of the Act, in the light of the judgment of the Central Inland Water
Transport Corporation Limited Vs. The Workmen and Another , (1974) 4
SCC 696 , this Court held as follows:
“26. …. …. As to whether or not the mere revision of pay
scale and payment of arrears of pay, gratuity and provident
fund would also call for revision of pension – particularly in the
face of Clause 13 and Clause 3 of the General Terms &
Conditions as extracted above, is an issue which would need
adjudication. Similarly, whether there is discrimination and, if
so, whether it is actionable, are issues which require
adjudication. So as not to prejudice the case of either of the
parties, this Court is refraining from making any comment on
the same at this stage. However, there can be no doubt that the
relief sought by the respondent is premised on the annulment of
Clause 13 and Clause 3, as aforesaid. In the teeth of these
clauses, the relief of revision of pension certainly cannot be
granted. The said dispute raised by the respondent would
require independent adjudication. The respondent has itself
stated in her petition that Clause 3 has become redundant in
view of her submissions made in the petition. This clearly
shows that the respondent is seeking to justify her claim not on
the terms & conditions of the settlement, but de hors and, rather
contrary to the said terms & conditions. The aforesaid issues
raised by the respondent can certainly not be said to be
incidental to the VRS/settlement between the parties. It cannot
be said that the respondent is merely seeking to execute or
enforce the settlement through the process under Section 33-
C(2) of the Act. The respondent is, in fact, seeking to establish
her right to relief by raising the aforesaid issues and is also
seeking the determination of the issue of the petitioner’s
corresponding liability. These are well beyond the scope of an
incidental enquiry that may be undertaken in enforcement or
execution proceedings in respect of a pre-determined right in a
settlement or adjudication.
Page 5 of 22
27. Pertinently, the CGIT has appreciated this aspect – as is
evident from the order dated 23.12.2011 extracted above.
However, the CGIT has not separated the claims/issues which
fall within the scope of an enquiry under Section 33-C(2) and
those which fall beyond it. In my view, this is a fallacious
approach because, by not doing so, further enquiry/proceedings
for leading additional evidence/production of documents would
unnecessarily be undertaken even in respect of issues/claims
which fall beyond the scope of enquiry under Section 33-C(2) of
the Act. The approach of the CGIT could not be to gather
evidence/information even beyond the scope of the enquiry
before it, and then to discard a part of it later. The CGIT
should not have postponed the segregation of the issues/claims
beyond its jurisdiction under Section 33-C(2) but dealt with the
said objection at the earliest to limit the scope of its enquiry to
cover those aspects which fall within its jurisdiction. Of
course, if there is an aspect on which a firm view cannot be
taken, i.e., whether, or not, it falls within the scope of enquiry
under Section 33-C(2) of the Act, without evidence being
recorded, the CGIT should observe so and in that eventuality, it
may postpone the determination of the issue of jurisdiction till
after the evidence is recorded. However, this aspect should
receive consideration from the Tribunal at the earliest so as to
curtail unnecessary proceedings, expense of time and expense.
28. There are a couple of aspects which appear to fall within
the scope of the enquiry permissible under Section 33-C(2) of
the Act. I now proceed to deal with them.
29. The first grievance of the respondent stems out of the
settlement inasmuch, as, the respondent is seeking information
with regard to the detailed break up of the amounts computed
and paid by the petitioner at the time when she was granted
VRS. There can be no doubt that the respondent is entitled to
the said information.
30. Similarly, her grievance number six, as aforesaid, in
relation to the manner in which TDS has been deducted from
the amount already been paid to her or being paid to her,
Page 6 of 22
appears to be justified and the petitioner cannot deny the said
information.
31. As noticed above, the seventh grievance is a general
grievance in relation to which there can be no general
direction. However, all the other grievances raised by the
respondent stem out of her primary submission that Clauses 13
& 3 of the VRS/settlement do not bind her. As aforesaid, these
are grievances which cannot be remedied under Section 33-
C(2) of the Act and the respondent would have to, if she is so
advised, seek a reference of the said disputes under Section 10
of the Act.
32. Accordingly, I dispose of this petition in the aforesaid
terms with the direction that the CGIT shall examine the claim
for production of documents by the petitioner in the light
thereof .”
11. The aforesaid judgment dated 01.02.2013 in W.P.(C.) No.5832/2012
was placed before the CGIT on 07.02.2013. Thereafter, the impugned order
has come to be passed. I consider it appropriate to reproduce the impugned
order in its entirety. The same reads as follows:
“ Information is furnished by the management to the claimant,
in pursuance of order dated 01.02.2013 passed by High Court
of Delhi. Shri Gupta presents that on supply of the above
information, nothing remains to be computed in terms of money
in favour of the claimant. Shri Sharma dispels the submissions.
I have gone through the petition, moved under section 33-C(2)
of the Industrial Disputes Act, 1947 (in short the Act), written
statement filed by the management and order dated 01.02.2013
passed by High Court of Delhi. In the claim statement in
grievance No. 4 a claim is made for revision of pension, on
th
enhancement of pay in terms of clause (5) of 7 Bipartite
Settlement. Enhancement of pay of the claimant, with
retrospective effect, is not a matter of dispute. Arrears have
already been paid. But her pension was not enhanced. In its
Page 7 of 22
written statement, the management claims that such a claim
requires adjudication, which is not permissible under the
provisions of section 33-C (2) of the Act.
In its order dated 1.2.2013 High Court of Delhi considered the
issue as to what information is to be furnished by the
management to the claimant. The High Court was hearing a
writ petition against the order dated 19.07.2012, on the
strength of which this Tribunal commanded the management to
produce documents, detailed in that order. During the hearing
of that petition, the High Court considered the petition under
section 33-C (2) of the Act and written statement filed by the
management. Scope of powers of this Tribunal, while dealing
with a petition under section 33-C (2) of the Act was also noted
by the High Court. There is no two opinion that a workman
cannot put forward a claim in a petition under section 33-C (2)
of the Act, which is not based on an existing right, that is to say
already adjudicated upon or provided for and must arise in the
course of and in relation to the relationship between an
industrial workman and his employer.
While adjudicating the writ petition, the High Court noted
that since claim for revision of pension was disputed one it
cannot be adjudicated in the present petition, moved under
section 33-C (2) of the Act. For reaching that conclusion, the
High Court noted the facts projected before it by the
management. Wrong facts were placed before the High Court
by the management with a view to mislead the Court. In para
18 of the petition, the claimant gives the list of the persons,
whose pension was revised by the management despite the fact
that they also took VRS under the very scheme, which was
opted by the petitioner/claimant. In its written statement, the
management adopted an eerie silence on those facts. The
management opted not to speak about the case of those seven
employees who sought VRS under the scheme and
subsequently their pension was revised. By its stand taken,
the management is deemed to have admitted those facts.
When these facts are taken into consideration, it emerges that
Page 8 of 22
the claim of “revision of pension” was already provided for.
The High Court was misled when it recorded facts, in the
above order, to the effect that claim for revision of pension
was disputed one. In order, referred above, reasoning detailed
was based on wrong facts, placed by the management.
Therefore, it is apparent that claim of “revision of pension” is
already provided for and falls within the ambit of section 33-C
(2) of the Act. Hence submissions of Shri Gupta, that nothing
remains to be adjudicated in the matter, are uncalled for .”
(emphasis supplied)
12. The submission of Mr. Bansal, learned counsel for the petitioner is
that the impugned order flies in face of the inter partes judgment of this
court dated 01.02.2013, which has attained finality as the parties have
accepted the same. He submits that the impugned order is completely
contrary to the judgment of this court, whereby this court had allowed the
tribunal to proceed only in respect of two aspects of the respondents
grievances, which stemmed out of the settlement between the parties. The
first was with regard to the respondent seeking information about the
detailed breakup of the amount paid by the petitioner at the time when she
was granted VRS, and the second was in relation to the manner in which
TDS had been deducted from the amount already paid to the respondent, or
being paid to her. It is only in respect of these two aspects that the court had
held that the proceedings under section 33C(2) of the Act were
maintainable. In respect of all other grievances and claims, this court had
concluded that those grievances and claims could not be raised in
proceedings under section 33C(2) of the Act, since the said grievances and
claims required adjudication, whereas the proceedings under section 33C(2)
of the Act are in the nature of execution proceedings.
Page 9 of 22
13. Mr. Bansal submits that, with a view to overreach the judgment of this
court, the CGIT has observed that “ wrong facts were placed before the High
Court by the management with a view to mislead the court ”. The CGIT
further observed that in para 18 of the claim petition preferred by the
respondent under section 33C(2) of the Act, the claimant has given the list
of persons whose pension was revised by the management despite the fact
that they also took VRS under the very same scheme which was opted for by
the respondent/claimant. Learned counsel submits that it was not for the
CGIT to conclude that any wrong facts were placed before this court or
accepted by this court, while rendering its decision on 01.02.2013 in
W.P.(C.) No.5832/2012. The said judgment was passed after hearing the
counsel for both sides, and the parties had accepted the decision of this
Court. The respondent had not assailed the decision dated 01.02.2013 either
in review or in appeal, much less on the ground that this Court had been
“misled” by the Petitioner into giving the said decision.
14. Mr. Bansal submits that assuming that the respondent was not
satisfied with the judgment dated 01.02.2013 in W.P.(C.) No.5832/2012, it
was for the respondent to assail the said judgment in appeal. The respondent
accepted the said decision, and did not assail the same. Learned counsel
points out that this court has specifically dealt with the grievance of the
respondent of her being discriminated in para 26 of the judgment dated
01.02.2013, by observing:
“ Having heard learned counsel for the parties, I am of the view
that the grievance of the petitioner with regard to the
maintainability of the respondent’s petition under Section 33-
C(2) largely is well-founded. What the respondent is seeking by
Page 10 of 22
filing the said petition, primarily, is to seek the annulment of the
terms & conditions of the VRS/settlement – particularly Clause
13 and Clause 3 of the General Terms & Conditions, as set out
hereinabove. The respondent is seeking the said annulment,
inter alia, on the basis of subsequent Bipartite Settlement,
whereby the pay scales were revised retrospectively from the
date when the respondent was still in service. As to whether or
not the mere revision of pay scale and payment of arrears of
pay, gratuity and provident fund would also call for revision of
pension – particularly in the face of Clause 13 and Clause 3 of
the General Terms & Conditions as extracted above, is an issue
which would need adjudication. Similarly, whether there is
discrimination and, if so, whether it is actionable, are issues
which require adjudication. So as not to prejudice the case of
either of the parties, this Court is refraining from making any
comment on the same at this stage. However, there can be no
doubt that the relief sought by the respondent is premised on
the annulment of Clause 13 and Clause 3, as aforesaid. In the
teeth of these clauses, the relief of revision of pension certainly
cannot be granted. The said dispute raised by the respondent
would require independent adjudication. The respondent has
itself stated in her petition that Clause 3 has become redundant
in view of her submissions made in the petition. This clearly
shows that the respondent is seeking to justify her claim not on
the terms & conditions of the settlement, but de hors and, rather
contrary to the said terms & conditions. The aforesaid issues
raised by the respondent can certainly not be said to be
incidental to the VRS/settlement between the parties. It cannot
be said that the respondent is merely seeking to execute or
enforce the settlement through the process under Section 33-
C(2) of the Act. The respondent is, in fact, seeking to establish
her right to relief by raising the aforesaid issues and is also
seeking the determination of the issue of the petitioner’s
corresponding liability. These are well beyond the scope of an
incidental enquiry that may be undertaken in enforcement or
execution proceedings in respect of a pre-determined right in a
settlement or adjudication .”
Page 11 of 22
15. Mr. Bansal points out that the observations made by the CGIT that in
its written statement the petitioner management had adopted an eerie silence
in respect of the allegation of the discrimination are also contrary to the
record. Reference has been made to the written statement of the petitioner
management filed before the CGIT and in particular para 2 of the
preliminary objections and the parawise reply to para 5.4. Para 2 of the
preliminary objections reads as follows:
“ It may further be noted that at the time when VRS Scheme was
implemented, some of the employees who opted for VRS were
already vested with the right of pension and some of the
employees who opted for VRS were not vested with the right of
pension. All such employees who were vested with the right of
pension at the time of VRS and when granted VRS are enjoying
the benefit of revision of pension, as well, but, the employees
who were not vested with pension but were still given the
pensionary benefits by way of the terms of VRS, will not be
entitled for any revision or other benefits. A complete reading
of the scheme of VRS will make it abundantly clear that the
employees who were not vested with the right of pension should
not have claimed the re-computation or revision of the pension
at any future date or time. ”
16. The relevant extract from para 5.4 of the parawise reply reads as
follows:
“ The details of the various individuals which have been given
vide para 5.4, and the amounts mentioned against them are
incorrect and not borne out by records. No such amount, as
indicated, was paid to them and moreover, these persons are
differently placed than the petitioner. Therefore, the element of
discrimination which is being raised is misplaced and without
any basis. The amounts mentioned against each one of them
are not admitted to be correct .”
Page 12 of 22
17. Mr. Bansal points out that there was no basis for the CGIT to
observe that the management did not speak about the case of the seven
employees who sought VRS under the scheme and subsequently their
pension was revised. There was no basis to conclude that the reasoning was
based on wrong facts alleged by the respondent/claimant. In any event, once
this court had confined the scope of the enquiry before the CGIT under
section 33C(2) of the Act, it was not open to the tribunal to expand the scope
on its own. Learned counsel submits that in the second last paragraph of the
impugned order, once again the tribunal has observed that “the High Court
was misled when it recorded facts, in the above order, to the effect that
claim for revision of pension was disputed one. In order, referred above,
reasoning detailed was based on wrong facts, placed by the management.”
18. Mr. Bansal also submits that the conduct of the CGIT in passing the
impugned order tantamounts to criminal contempt as defined in section 2(c)
of the Contempt of Courts Act, 1971, (CCA in short) which is, inter alia,
defined to mean doing of any act whatsoever which interferes or tends to
interfere with or obstruct or tends to obstruct, the administration of justice in
any manner.
19. Mr. Bansal submits that under section 16 of the CCA, a judge,
magistrate or any person acting judicially shall also be liable for contempt of
his own court, or any other court in the same manner as any other individual
is liable under the provisions of the CCA, as far as applicable.
20. Mr. Bansal submits that the impugned order is a result of blatant and
conscious disobedience of the judgment of this court by the CGIT. Despite
Page 13 of 22
a clear direction of this court to limit the scope of enquiry under section
33C(2) of the Act to only two aspects, the CGIT has sought to expand its
scope, even though this court had disapproved of the earlier action of the
CGIT in undertaking an enquiry into aspects which fell beyond its scope
under section 33C(2) of the Act. Learned counsel submits that the conduct
of the CGIT is such is to mar the rule of law and the discipline that all
subordinate Courts and tribunals are bound to follow by obeying the orders
and judgments passed by this court. He submits that under Article 227 of
the Constitution, this court exercises superintendence and supervisory
jurisdiction over all courts and tribunals which are subordinate to it, which
includes the CGIT.
21. Mr. Bansal has also drawn my attention to Article 215 of the
Constitution which states that every High Court shall be a court of record,
and shall have all powers of such court, including powers to punish for
contempt of itself. In this regard, reliance is placed on the decision of this
court in Deepak Khosla v. Union of India & Ors. , 173 (2010) DLT 41
(DB). He submits that by virtue of section 15 of the CCA, this court can
take action on its own motion as well, in the case of criminal contempt. He
submits that this court should, while disposing of the writ petition on merits,
after taking cognizance of the contempt committed by the Tribunal, refer the
criminal contempt committed by the tribunal to a Division Bench of this
court.
22. Mr. Bansal has also referred to several decisions in support of his
aforesaid submissions. He has drawn my attention to Sh. Baradakanta
Mishra v. Sh. Bhinsen Sen Dixit , AIR 1972 SC 2266, where the Supreme
Page 14 of 22
Court quoted the extract from the earlier decision in East India Commercial
Co. Ltd. v. The Collector of Customs, Calcutta , AIR 1962 SC 1893. Mr.
Bansal has specifically relied upon the following extract from the said
quotation:
“It would be anomalous to suggest that a tribunal over which
the High Court has superintendence can ignore the law
declared by that court and start proceedings in direct violation
of it. If a tribunal can do so, all the subordinate courts can
equally do so, for there is no specific provision, just like in the
case of Supreme Court, making the law declared by the High
Court binding on subordinate courts. It is implicit in the power
of supervision conferred on a superior tribunal that all the
tribunals subject to its supervision should conform to the law
laid down by it. Such obedience would also be conducive to
their smooth working; otherwise there would be confusion in
the administration of law and respect for law would
irretrievably suffer.”
23. The Supreme Court proceeded to observe as follows in the said
decision:
“ 17. Our view that a deliberate and a mala fide conduct of not
following the binding precedent of the High Court is
contumacious does not unduly enlarge the domain of contempt.
It would not stifle a bona fide act of distinguishing the binding
.”
precedent, even though it may turn out to be mistaken
24. Mr. Bansal submits that the Supreme Court has held in B.K. Brar v.
Hon’ble the Chief Justice & his companion Judges of the Orissa High
Court & Ors. , AIR 1961 SC 1367 that to constitute contempt of court, it is
necessary to show that the subordinate court intentionally disobeyed the
order of the superior court. Mr. Bansal submits that disobedience of the
judgment of this court by the CGIT is clearly intentional, since the CGIT
Page 15 of 22
was aware and discusses the said decision in the impugned order. Despite it
being clearly directed that the enquiry under section 33C(2) of the Act shall
be restricted only to two aspects, the CGIT seeks to enlarge the scope of the
said proceedings by labelling the submission of the petitioner before this
court as misleading and by observing that this court had been misled. He
submits that the present is not a case where the CGIT was not aware of the
judgment of this court or that there was any scope for any doubt about the
interpretation of the said judgment.
25. Mr. Bansal has also placed reliance on the decision of the Madras
High Court in B. Ramalingam - suo motu contempt petition No.782/2005,
2006 (1) CCC 165 (Mad). After referring to several decisions of the
Supreme Court and the High Courts, the Division Bench issued the
following directions:
“ 24. The following are the directions:
(I) When a position, in law, is well settled as a result of
judicial pronouncement of this Court, it would amount to
judicial impropriety to say the least, for the subordinate
Courts to ignore the settled decisions rendered by High Courts
and the Supreme Court and then to pass a judicial order which
is clearly contrary to the settled legal position. Such judicial
adventurism should be avoided.
(II) Judicial restraint and discipline are as necessary to
the orderly administration of justice as they are to the
effectiveness of the army. The duty of restraint, the humility
of function should be a constant theme of Judges. Judicial
restraint in this regard might better be called judicial
respect; that is, respect by the judiciary.
(III) If subordinate judiciary refuses to carry out the
Page 16 of 22
directions given to it by the superior judiciary in the
exercise of its appellate or revisional powers, the result will be
chaos in the administration of justice. The appellate
jurisdiction inherently carries with it a power to issue
corrective directions binding on the forum below. Failure on
the part of latter to carry out the directions or show disrespect
to the propriety of such directions would be destructive
hierarchical system in administration of justice. The seekers of
justice and the society would lose faith in both. The
subordinate judiciary must bear in mind for ever.
(IV) Any discourtesy shown by the subordinate Courts to a
superior Court is bound to involve them in proceedings for
contempt. No subordinate Court is entitled to demand of
the superior Court the law under which the order has been
passed before complying with it. They should strictly comply
with the order of High Court and Supreme Court both in
letter and spirit. It must be understood by all concerned that
any discourtesy or disobedience shown to the orders of
superior courts will be visited by this Court with the severest
penalties.
(V) In the hierarchical judicial system, it is not for any
subordinate court to tell a superior court as to how a matter
should be decided when an appeal is taken against its decision
to that superior court. Such a course would be subversive of
judicial discipline on the bedrock of which the judicial system is
founded and finality is attached and orders are obeyed.
(VI) Judicial system requires that clear pronouncements by
the High Court, about what the law on a matter is, must be
treated as binding on all the subordinate courts. Where the
High Court has stated that the law laid down in a particular
case is the applicable law, it is not open to the subordinate
court to consider or rely on any supposedly conflicting
decisions from any other High Court, our High Court's decision
is binding on all the subordinate judiciary in Tamil Nadu and
Pondicherry.”
Page 17 of 22
26. Mr. Bansal submits that by passing the impugned order, the CGIT has
made a mockery of judicial process, which would have its pernicious
influence beyond the parties, and affect the interest of the public in the
administration of justice. He places reliance on the following observation
made by the Supreme Court in Advocate General, State of Bihar v. Madhya
Pradesh Khair Industries & Anr. , (1980) 3 SCC 311:
“While we are conscious that every abuse of the process of the
court may not necessarily amount to contempt of court, abuse
of the process of the court calculated to hamper the due course
of a judicial proceeding or the orderly administration of justice,
we must say, is a contempt of court. It may be that certain
minor abuses of the process of the court may be suitably dealt
with as between the parties, by striking out pleadings under the
provisions of Order 6 Rule 16 or in some other manner. But, on
the other hand, it may be necessary to punish as a contempt, a
course of conduct which abuses and makes a mockery of the
judicial process and which thus extends its pernicious influence
beyond the parties to the action and effects the interest of the
public in the administration of justice. The public have an
interest, an abiding and a real interest, and a vital stake in the
effective and orderly administration of justice, because, unless
justice is so administered, there is the peril of all rights and
liberties perishing. The court has the duty of protecting the
interest of the public in the due administration of justice and,
so, it is entrusted with the power to commit for contempt of
court, not in order to protect the dignity of the court against
insult or injury as the expression “Contempt of Court” may
seem to suggest, but, to protect and to vindicate the right of the
public that the administration of justice shall not be prevented,
prejudiced, obstructed or interfered with. “It is a mode of
vindicating the majesty of law, in its active manifestation
against obstruction and outrage.” [ Per Frankfurter, J. in
Offutt v. U.S.(1954) 345 US 11] “The law should not be seen to
sit by limply, while those who defy it go free, and those who
seek its protection lose hope.”
Page 18 of 22
27. On the other hand, learned counsel for the respondents has sought to
justify the impugned order primarily by seeking to reargue the scope of
section 33C(2) of the Act which already stands adjudicated finally inter se ,
the parties vide judgment dated 01.02.2013. The submission of learned
counsel for the respondent is that the claim for revision of pension arises out
of the eighth bipartite settlement and, therefore, it requires no further
adjudication. He has also tendered in court a compilation of judgments of
which he has only referred to the first judgment in the case of Tata Iron &
Steel Co. Ltd. v. CGIT, Dhanbad & Ors. , 1966 1 LLJ 759, where the High
Court had held that on the question, as to whether the tribunal should not
have disposed of the application on merits under Rule 22 of the Central
Rules was a question of the discretion of the tribunal, and the High Court in
exercise of its extraordinary jurisdiction under Article 226 and 227 of the
Constitution, does not interfere with the exercise of that discretion by the
lower courts or tribunals.
28. Having heard learned counsels for the parties, perused the impugned
award and the judgment of this court in WPC No.5838/2012 dated
01.02.2013, it is abundantly clear to me that the impugned order is patently
laconic and cannot stand scrutiny even for a moment. I have already
extracted herein above the relevant extract from the decision dated
01.02.2013. The said decision shows that the court was conscious of and
applied its mind to the aspect whether the claim for revision of pension on
account of retrospective revision of pay scale and payment of arrears,
gratuity and provident fund could be dealt with in proceedings under section
33C(2) of the Act, or not. The court had observed that the said aspect would
Page 19 of 22
need adjudication, particularly in the face of clauses 13 and 3 of the general
terms and conditions. Pertinently, the respondent had claimed in its
application under section 33C(2) of the Act that clause 3 had become
redundant in view of her submission made in the application/petition.
Therefore, this court had come to the conclusion that it could not be said that
by raising the claim for revision, the respondent was merely seeking to
execute or enforce the settlement through the proceedings under section
33C(2) of the Act. This court had concluded that the respondent was
seeking to establish her right to relief by raising, inter alia, the aforesaid
aspect of revision of pension and also seeking determination of the issue of
petitioners corresponding liability.
29. In the face of the clear findings returned by this court, which have
been accepted by the respondent inasmuch, as, the respondent did not chose
to challenge the judgment dated 01.02.2013, it did not lie in the mouth of the
respondent, much less the tribunal, to claim that the petitioner had misled
this court or that this court had been misled into returning the said finding.
Whether, or not, this court had been misled or erred in returning its decision
could not have been examined by the tribunal, or pronounced upon as done
by it. The said issue could have been raised only in an appeal before a
higher forum. What the CGIT has done is to sit in judgment over the
decision dated 01.02.2013; conclude that the same is a result of the court
being misled, and; to blatantly disregard the same.
30. I also find merit in the petitioners submission that the CGIT while
passing the impugned award has erred on record since it has been observed
that the petitioner has maintained an eerie silence, even though that is not
Page 20 of 22
the position on facts.
31. It is not open to the respondent to seek to reopen the issues concluded
by the judgment dated 01.02.2013 in the process of defending the impugned
order as sought to be done by her. I, therefore, reject the submission of
learned counsel for the respondent that the claim for revision of pension
stemmed out of the bipartite agreement, and that it required no further
adjudication and it merely required re-computation.
32. Reliance placed on the decision in Tata Iron & Steel (supra) has no
relevance whatsoever. The court, in that case, was primarily dealing with
the issue whether the tribunal had the jurisdiction to dismiss the application
of the employer under section 33(2)(b) of the Act for non prosecution, if the
employer is not present on date on which it is fixed for hearing. The further
question examined by the court was; when that where tribunal has exercised
such jurisdiction, whether the High Court would be justified in interfering
with exercise of such discretion under Article 226 and 227.
33. It is well settled that while exercising its writ jurisdiction, this court
does not sit as an appellate forum to undertake judicial review of quasi
judicial orders. However, it does not preclude this court from exercising its
jurisdiction to interfere with the orders passed by the tribunal and quasi
judicial bodies where it appears to the court that the tribunal has, inter alia,
acted beyond its jurisdiction.
34. The present is clearly a case where the tribunal has exceeded its
jurisdiction and, therefore, interference by this court would not only be
justified but is also called for with a view to keep the tribunal in check,
Page 21 of 22
maintain the rule of law and in the interest of justice. Accordingly, the
impugned order is quashed and set aside. The writ petitions stand disposed
of.
35. The conduct of Dr. R.K. Yadav CGIT who has passed the impugned
order, prima facie, appears to be contumacious in the light of several
decisions relied upon by the petitioner. Prima Facie, it appears that his
conduct not only amounts to civil contempt inasmuch, as, it appears to be
wilful disobedience of the judgment of this court aforesaid, but also amount
to criminal contempt since his conduct may amount to interference with the
administration of justice.
36. I would not like, at this stage, to dwell on this aspect in any greater
detail, since I consider it appropriate to issue notice to Dr. R.K. Yadav,
Presiding Officer, CGIT, requiring him to show cause as to why proceedings
for contempt of the decision dated 01.02.2013 in WP (C) No. 5832/2012 be
not initiated against him. The Registry is directed to appropriately open a
fresh file with the title “Court of its own Motion V. Dr. R. K. Yadav Central
Government Industrial Tribunal-cum-Labour Court No. 1, New Delhi” and
number the same. A copy of the decision dated 01.02.2013 in WP (C)
5832/2012 and the order dated 14.03.2013 passed by Dr. R. K. Yadav be
placed in the said file along with this order, and the same be also served
upon him. The notice be made returnable on 26.08.2013. The Contempt
petition be placed before the appropriate bench as per roster, subject to
orders of Hon’ble the Acting Chief Justice.
VIPIN SANGHI, J.
JULY 17, 2013 sr
Page 22 of 22