ORDER B.S. Chauhan, J.
1. This Contempt petition has been filed by the applicant for initiating the proceedings under the provisions of the Contempt of Courts Act, 1971 (hereinafter referred to as'the Act'), on the allegations that the respondents have willfully defied the order dated 19th August, 1994, passed by this Court in Contempt Petition No. 521 of 1994. The factual matrix of the case, as revealed by the record, is that a dispute arose regarding the revision of the salaries of the employees of the Tannary & Foot Wear Corporation of India Ltd., a Government of India undertaking, (hereinafter called as 'the Corporation). The applicant filed writ petition No. 1744 of 1994 before this Court wherein the following interim order was passed on 4-1-1994 :-
"Meanwhile, the respondents are directed to pay revised scale and arrears of salary to the petitioner since 1-8-1987 or to show cause before the next date of hearing."
2. The opposite party No. 1, Shri T. Rudra, Chairman of the said Corporation, filed a counter affidavit in the said writ petition on 15-3-1994. Before the said interim order dated 4-1-1994 could be confirmed, modified, varied or vacated, petitioner filed Contempt Petition No. 521 of 1994 before this Court alleging that the opposite parties had wilfully defied the order of this Court dated 4-1-1994 and consequently show cause notice in the said contempt Petition was issued. Before the disposal of the said contempt petition, the main writ petition came for hearing before this Court on 5-5-1994 and the interim order dated 4-1-1994 was modified as under :-
"It is, however, clarified that since cause has been shown by the respondent No. 3, the pay in revised pay scale and arrears of salary since 1-8-1987 may not be paid to the petitioner in pursuance of the interim order dated 4-1-1994 until further orders."
3. In the said Contempt Petition No. 521 of 1994 opposite party No. 1 filed a supplementary-counter affidavit stating that on 13th August, 1994, the Management of the said Corporation has agreed to implement the revised pay scale of the petitioner in pursuance of certain orders passed by the Government of India. The said Contempt Petition came up for hearing before this Court on 19-8-1994, wherein this Court after making reference to the earlier orders dated 4-1-1994 & 5-5-1.994 made the following observations:-
"As in pursuance of the order dated 4-1-1994 cause has been shown by filing a counter-affidavit and further the Court directed, the pay and arrears of salary in the revised pay scale may not be paid to the petitioner in pursuance of the order dated 4-1-1994. In my opinion, there is no question of taking any action in this contempt petition. From the supplementary counter affidavit filed by Shri T. Rudra, it also appears that the Management has agreed to implement the revised pay scale of the petitioner and subordinate staff in accordance with the Government Orders dated 22-2-1994 & 13-8-1994. In my opinion, this stand indicated by the opposite party No. 1 is sufficient to vindicate the grievance of the petitioner. It is expected that amount of salary including arrears due to petitioner under the revised pay scale shall be paid to them expeditiously within a reasonable time. Subject to the aforesaid, the contempt petition is rejected."
(Emphasis supplied)
4. It is undisputed that the employees and members of the petitioner association, had regularly been paid the revised pay scale but they had not been paid the arrears of revised pay scale. However, the liability seems to be huge. Petitioner filed the instant contempt petition alleging that the solemn undertaking given by the opposite party No. 1 before this Court, which has been incorporated in the order dated 19-8-1994 has wilfully been disobeyed by the opposite parties.
5. This Court vide its order dated 27-4-1995 passed the following order:-
"Since I find prima facie case for the alleged contempt of Court hence it is ordered :- Issue notice to the respondents Nos. 1 to 4 calling upon each of them to appear in person on 17-8-1995 or through the learned counsel stating all the facts on oath as to why each of them shall not be prosecuted for punishment for the alleged contempt of Court for flouting the order dated 19-8-94 passed in Contempt Petition No. 521 of 1994.
Respondents are directed to make all indeavours to see that the Court's order is strictly complied with if it has not been complied with."
6. In pursuance of the said order the opposite parties filed the counter affidavits. Opposite parties also filed Special Appeal No. 500 of 1995 against the said order dated 27-4-1995. The said Special Appeal has been disposed of by this Court vide its order dated 9-8-1995 and the opposite parties could not find any favour with the Court in the said Special Appeal. In the instant contempt petition the opposite party No. 1 has filed a counter-affidavit expressing the inability to comply with the order passed by this Court on 19-8-1994. The case set up in defence is that in the establishment of the said Corporation there has been no production for last 5 years. There is no work available even for the Members of the petitioner's association. The Government of India has not paid any money. The Corporation is incapable of carrying the huge liability because of its financial constrains and being a sick-undertaking a reference had been made to the Board for Industrial & Financial Reconstruction (hereinafter referred to as 'BIFR') under the provisions of Sick Industrial Companies Act, 1985, which vide its letter dated 14-2-1995 forwarded its opinion to the Company Matters Judge of this Court in a pending case No. 506 of 1992 in Re : Tannary & Foot Wear Corporation of India Ltd. to the effect that no viable alternative proposal for its revival/reabilitation could emerge and it is not likely that in near future the Corporation would be able to meet its liability and it was found just and equitable that the Sick Industrial Company i.e. the Corporation should be wound up under Section 20(i) of the Act. The averment made in the counter affidavit of the opposite party No. 1 is that the incapability of the said Corporation because of its financial position cannot be termed as wilful disobedience of the order of this Court dated 19th August, 1994.,
7. Petitioner has filed the rejoinder affidavit. The parties have also filed some misc. applications but it is neither desirable nor necessary to proceed with those applications at all at this stage. It may not be out of place to mention that opposite parties filed an application before this Court in October, 1994, seeking the clarification of the order dated 19th August, 1994, but no order has been passed on the said application and it appears that the opposite parties are not interested to get the said order clarified, though the issue of maintainability of such application remains doubtful, as the clarification of the said order dated 19th August, 1994, may be tantamount to review, which is not permissible under the provisions of the Act as the provisions of the Act do not provide expressly or impliedly for review.
8. I have heard Shri K.N. Tripati, learned Senior Advocate for the Petitioner-Association and Shri K.T. S. Tulsi, learned Additional Solicitor General of India for the opposite parties. Petitioner could not make any specific allegation against the opposite parties Nos. 2 to 4 and the entire allegations of wilful disobedience of the order of this Court dated 19th August, 1995, are made against opposite party No. 1. Shri Tripathi has very fairly conceded that charges should be droped against opposite parties Nos. 2 to 4 and the case is being considered here only against the opposite party No. 1. Shri Tripathi has vehemently argued that the affidavit filed by the opposite party No. 1 in contempt petition No. 521 of 1994 amounts to an undertaking given to this Court and the same has been incorporated in the order dated 19th August, 1994. The opposite party No. 1 is guilty of committing the contempt of this Court as he did not comply, with the said order.
9. Shri Tripathi has referred to and relied upon the judgments of the Supreme Court in the cases of Mohd. Aslam v. Union of India , Shanti Swaroop Gupta v. Anjuman Isnai Asharia , Smt. Pushpaban v. Narain Das v. Badiani, and Mohd. Idris v. Rustam Jahangir Bapuji, . The contention of Shri Tripathi is that once a party gives an undertaking to the Court and violates it, the party cannot be absolved of the liability of punishment for cortimitting the contempt of Court, unless the party places before the court sufficient material which would justify that he had taken all reasonable steps and precautions to meet that undertaking. No doubt an undertaking can also be given before the Court in contempt proceeding and if such an undertaking is given, the party cannot be allowed to take a summersault as the undertaking cannot be permitted to be aploy to subterfuge the contempt proceedings. Such cases definitely warrant the severe punishment.
10. In the case of Dr. Roshan Sam Joyce v. S.R. Cotten Mills Ltd. , the Supreme Court has observed as under:
"We feel that our hands are not so tight, and where there is patent dishonesty on the part of the respondents Nos. 1 & 2 writ large on the face of the record, the law does not require that we should sit back with folded hands and fail to take any action in the matter...as respondent No. 1 gave an undertaking passed on an implication or assumption which was false to its knowledge...the respondent Nos. 1 and 2 have tried to deceive the Court and the appellant. We fail to see how it can be said that they are not guilty of contempt."
11. In the case of Balram Singh v. Bhikam Chand Jain, , the Supreme Court has observed as under:
"It would be a travesty of justice if the Court were to allow such gross contempt of Court to go unpunished, without an adequate sentence and we find no mitigating circumstances whatever not to pass a sentence of imprisonment."
12. Shri K.T.S. Tulsi opposed the submissions made by Shri Tripathi mainly on the following grounds:
(i) The order dated 19-8-94 clearly provides that there was no case of contempt and the learned Judge had expressly stated that there was no question of taking any action in the said contempt petition in view of the order passed by this Court on 5-5-94.
(ii) This Court, while exercising its jurisdiction under the said Act is not competent to add impose an additional liability on Corporation to what has been imposed by this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India.
(iii) The affidavit filed by the opposite party in the said contempt petition does not amount to undertaking irrespective of the fact that the same has been incorporated/mentioned in the said order dated 19-8-1994.
(iv) The incapacity of the Corporation because of financial situation cannot be termed as wilful definance of the order of this Court.
(v) There was no clear direction by this Court in its order dated 19-8-1994 for paying the arrears as at the most it could be mere expectation or the pious hope of the Court and such hopes and trust cannot be equated with the direction or mandate of the Court.
(vi) Had there been any clear direction to pay the arrears also, the said contempt petition should not have been rejected.
(vii) As the employees are being paid the revised scale of pay and if the arrears are also paid, the writ petition itself would stand automatically allowed and final bearing of the writ petition would be merely of academic interest, which is not permissible under the law.
13. In the case of Dushyant Somal v. Sushma Somal, , the Supreme Court has observed as under (at page 721; of CriLJ):
"Nor is a person to be punished for contempt of Court for disobeying an order of Court except when the disobedience is established beyond reasonable doubt, even if not the same, as any criminal proceedings, where the person alleged to be in contempt is able to place before the Court sufficient material to conclude that it is impossible to obey the order, the Court will not be justified in punishing the alleged contemner."
14. In the case of Niyaz Mohammad v. State of Hariyana , the Supreme Court has observed as under :-
"The Civil Court while executing a decree against the judgment-debtor is not concerned and bothered whether the disobedience to any judgment, or decree, was wilful. Once a decree has been passed it is the duty of the Court to execute the decree whatever may be the consequences thereof. But while examining the grievance of the person, who has envoked the jurisdiction of this Court to initiate the proceedings for contempt of disobedience of its order, before any such contemner is held guilty and punished, the Court has to record a finding that such disobedience was wilful and intentional. If from the circumstances of a particular case, brought to the notice of the Court, the Court is satisfied that although there has been a disobedience but such disobedience is the result of some compelling circumstances under which it was not possible for the contemner to comply with the order, the Court may not punish the alleged contemner."
15. Similarly in the case of K.J. Pathare v. S.J. Pathare (1971) 73 Bom LR 616, the Division Bench has made the observations that:-
"It would be a sad state of affairs, indeed, if the law of contempt obliged the Court to punish a man for an act which was beyond his control...reference may also be made to proviso (b) of Section 51 of the Code of Civil Procedure which enacts that the Court must be satisfied, for reasons to be recorded in writing, that the judgment debtor had the means to pay the amount of the decree and yet refused or neglected to do so, before a money decree could be executed by his arrest and detention in prison. Under these provisions of Civil Law, therefore, it is clear that the proceedings in the nature of contempt can be adopted only in the case of wilful or contumacious disobedience of orders or decrees of the Court."
16. Even in the case of recovery of tax as arrears of Land Revenue, the person cannot be arrested without determining or assessing the capability of payment of the said person or without being satisfied that there was sufficient justification to order his detention. As held by the Supreme Court in the case of Ram Narain Agrawal v. State of U.P., .
17. Moreover, it is well settled that the proceedings under the provisions of the Contempt of Courts Act should not be used as 'legal thumbscrew' by a party against the opposite parties for enforcement of his claim (Abdul Razak Shahib v. Ms. Azizunnisa Begum, .
18. In the case of Amar Chand Kapoor v. Roshan Lal, 1967 ALJ 442, this Court has held that the word undertaking that may be construed as an undertaking to the Court on account of the fact that through long practice that word had come to acquire a technical meaning as distinguished from its dictionary meaning. The word'undertake'may not necessarily mean a compromise to the Court. It may simply be a solemn promise by a party to the other' party and may be in the nature of that promise or undertaking the compromise might be entered into the parties for even a compromise decree may be passed in its term and observed as under:
"The order relied upon by the petitioner only contains a 'solemn promise' to vacate the premises in question within 5 months and does not containundertaking by him to that effect to the Court."
19. In the case of Babu Ram Gupta v. Sudhir Bhasin , the Supreme Court has observed as under (at page 955; of CriLJ):-
"There is a clear cut distinction between a compromise arrived at between the parties or a consent order passed by the Court at the instance of the parties and a clear and categorically undertaking given by any of the parties. In the former, if there is violation of the compromise or the order no question of contempt of court arises, but the party has a right to enforce the order or the compromise by either executing the order or getting an injunction from the Court."
20. While deciding the aforesaid case the Supreme Court relied upon its earlier judgment in the case of Bhatnager & Co. Ltd. v. Union of India, :
"It is clear that the petitioner's grievance and the prayer for a writ are entirely misconceived. The petitioner is entirely in error in assuming that, on behalf of the Union of India, any undertaking was given that his revisional petition would be disposed of within a day or two...the petitioner presumably thinks that the Courts order required that his revisional petition should be disposed of by the Central Government within a month. This assumption is entirely unwarranted."
21. After considering the arguments and rival contentions of the parties the issue which is to be determined is the nature of the undertaking given by Shri T. Rudra in the earlier contempt petition No. 521 of 1994 and the nature of the order dated 19th August, 1994. It is clear from the said order that this Court was of the opinion that no case had been made out for initiating the contempt proceedings. From the later part of the order it is clear that in the affidavit filed by Shri T. Rudra it was mentioned that "the Management had agreed to implement the revised pay scale" and in the order the learned Judge merely expected that arrears should be paid and with those observations the contempt petition was rejected. I have gone through the affidavit filed by Shri T. Rudra. The relevant part of it reads as under:-
"...the Management is pleased to implement the revised pay scales of the clarical and subordinate staff in accordance with the above mentioned Government Orders."
22. The said affidavit/undertaking given by Shri T. Rudra in the earlier contempt petition does not speak of the payment of arrears though as the revised pay scales are implemented with retrospective effect, it would also include the payment of arrears. But there is no such clear undertaking in the said affidavit filed by Shri T. Rudra. Coming to the order dated 19th August, 1994, the words used in the order are that 'the Management has agreed to implement the revised pay scales' meaning thereby that there was merely an agreement to implement the revised pay scales, which no doubt has been paid to the members of the petitioner's association. When the learned Judge speaks of the expectations for paying the arrears it may merely be the expectations or the pious hope of the Hon'ble Judge. But it cannot be termed as a clear direction of the Court to the opposite parties to pay the arrears. It is settled law that when a judgment is capable of giving two interpretations or the order is not very clear, it cannot be said that there has been a wilful disobedience of the order of the Court. In the case of Devabrata Bandhopadhyay v. State of West Bengal, , the Supreme Court has observed as under (at page 405; of Cri LJ):-
"Punishment under the law of contempt is called for when the lapse is deliberate and in disregard of one's duty and in definance of authority. To take action in unclear case is to make the law of contempt due duty for other measures and is not to be encouraged."
23. A similar view has been taken by the Supreme Court in the case of B. K. Kar v. Hon'ble the Chief Justice and his companion Judges of Orissa High Court, and in the case of Bharat Coking Col. Ltd. v. State of Bihar, .
24. So far as the incapacity of the opposite party to pay is concerned, the affidavit of Shri T. Rudra, opposite party No. 1, makes it clear that the factory virtually stands closed for last 5 years and there has been no production. The Members of the petitioner's association are sitting idle and the proceedings for the revival or rehabilitiation of the Corporation, as mentioned above had failed. There are documents on the record to the effect that the Corporation has to raise the money on its own. Reference may particularly be made to the letter dated 4-3-1994 written by the Government of India to the opposite party No. I, wherein it has been specifically mentioned that the revision of pay scales have been given approval by the Government of India "subject to the condition that the arrears accruing from the pay revision of unionised cadre of staff of TAFCO shall be paid from the internal resources of the company." Thus, the Government of India has not paid any amount to pay the arrears of the petitioner. The opposite party No. 1, is not in a position to make the payment of arrears to the petitioner. Could opposite party No. 1 be held guilty of committing of contempt of Court. In the case of S. Abdul Karim v. M. K. Prakash, , the Supreme Court has observed as under:
"Even if it could be urged that mens rea, as such, is not a indispensible ingredient of the offence of contempt, the courts are loath to punish a contemner, if the Act or omission complained of, was not wilful."
25. Similarly in the case of V.G. Nigam v. Kedar Nath Gupta, , the Supreme Court has observed as under (at page 2155):-
"As regards the order of the Tribunal sentencing the appellants for not complying with the order in 'letter & spirit', while depricating the practice or any attempt to ignore or by pass the order passed by courts or tribunals it would be too hazardous to sentence in exercise of contempt jurisdiction on mere probabilities. The wilful conduct is the primary and basic ingredient of such an offence.."
26. After considering the facts and circumstances of the case in totality, I reach the conclusion that this Court vide its order dated 19th August, 1994, did not give any specific direction to pay the arrears to the members of the petitioner's association as at the most it could be termed as mere expectation and pious hope of the Court, though there was no occasion for the Court even to say so particularly in view of the order passed by this Court on 5th May, 1994. And in view of the financial constrains and incapacity as is evident from the record of the case, the opposite party No. 1 cannot be directed to pay the arrears even today. Before parting with the case I would like to add that it is commendable that in spite of such a heavy financial constrains, the opposite party No. 1 had paid the revised pay scales in spite of the fact that the Corporation is out of production for last 5 years. It is apparent from the record that the opposite party is unable to pay the arrears of the revised pay scale. The financial constrains pleaded by opposite party No. 1 appear to be real and genuine. It is abundantly clear from the record that opposite party No. 1 singularly made the sincere efforts to remove the financial constrains but in vein. There is nothing on the record to show that the petitioner's association has extended any kind of co-operation with the Management in its efforts to revive and rehabilitate the Corporation, which perhaps would have made it feasible for the Corporation to pay the arrears accrued due to revision of the pay scale. The petitioner's sole interest seems to be to have the pound's flesh at the cost of Corporation.
27. It is not proved beyond reasonable doubt that the opposite party No. 1 is guilty of committing the Contempt of Court for wilfully disobeying the order of the Court dated 19-8-94 passed in Contempt Petition No. 521 of 1994. The Contempt Petition is devoid of any merit and is rejected. However, in the facts and circumstances there shall be no order as to costs.