Uma Shankar vs Hindustan Carbide Pvt. Ltd.
2004 Latest Caselaw 389 Del

JUDGMENT

Vikramajit Sen, J.

1. The Petitioner/Workman has invoked the powers under Sections 11 & 12 of the Contempt of Courts Act alleging that the Hindustan Carbide Pvt. Ltd. is guilty of committing contempt of the Orders of this Court. The Respondent has denied this allegation and has submitted that adequate remedy is available to the Workman under the Industrial Disputes Act, which should be pursued by the Workman instead of this Petition.

2. In brief, the facts of the case are that the Petitioner's services had been terminated on 5.2,1987. An Award came to be published on 8.5.1998 in terms of which the Workman was reinstated in service along with full back-wages, but these Orders have allegedly not been complied with. The Management had filed Civil Writ Petition No. 817/1999 assailing this Award. On 12.2.1999, the Management was directed to deposit the awarded amount within four weeks and subject to doing so, the operation of the impugned Award would be stayed. It transpires that the Workman had initiated recovery proceedings in which a recovery of Rs. 79,852/-was sought to be made under Section 33(C) of the Industrial Disputes Act. However, the Workman has not as yet succeeded in making any recoveries. In the course of the hearing of the Writ Petition, upon Civil Miscellaneous Application No. 14481/ 1999 under Section 17B of the Industrial Disputes Act having been filed by the Workman, on 28.5.2001 this Court ordered the Management to pay the Workman full last drawn wages inclusive of any maintenance allowance admissible to him under any Rule. The complete text is available in Hindustan Carbide Pvt. Ltd. v. National Capital Territory of Delhi and Ors., 94 (2001) DELHI LAW TIMES 331. It was clarified that the wages last drawn shall not be below the prescribed minimum wages payable from time-to-time. This payment was to be made within four weeks of May 28, 2001 and thereafter was to be paid month to month. The Management had approached the Hon'ble Division Bench against the Orders under Section 17B and upon issuing notice of the Letters Patent Appeal No. 339/2001, the Division Bench recorded the undertaking of the learned Counsel for the Management that the entire awarded amount would be deposited within six weeks. The Division Bench directed the stay of the operation of the impugned Order under Section 17B, conditional on this deposit being made. The challenge to the Order under Section 17B ended or. 10.12.2001 when the Letters Patent Appeal No. 339/2001 was disposed of with the direction that the aggregate of the last wages drawn should be released to the Workman unconditionally, but so far as the difference between this amount and the total of the minimum wages was concerned, security to the satisfaction of the Registrar General was to be furnished by the Workman in order to withdraw it. The operative part of the Judgment being Hindustan Carbide Pvt. Ltd. v. Government of NCT OF Delhi and Ors., (DB) reads thus:

"The Apex Court, however, has observed that any amount over and above the sum payable under the said provision being refundable, the Court may impose such terms and conditions, as it enable the employer to recover the same keeping in view the interest of justice.

In that view of the matter, in modification of the Order passed by the learned Single Judge, we direct that the difference in respect of amount between the minimum wages and the last wages drawn by him, respondent No. 3 shall offer security to the satisfaction of the Registrar (General) of this Court. The Registrar (General), however, shall permit respondent No. 3 to withdraw the amount of ast wages drawn and arrears of last wages as also the current and future amount deposited in terms of Section 17B of the Act, as also the sum of Rs. 5,000/-, which was directed to be deposited towards litigation expenses unconditionally without furnishing any security. The rest of the amount, however, we clarify may be permitted to be withdraw subject to furnishing of the security, but the appellant shall not be entitled to encash the FDRs.

In the facts and circumstances, we would request the appropriate Bench to consider the desirability of disposing of the main writ petition as expeditiously as possible and preferably within a period of eight weeks from the date of communication of this Order. The parties shall be at liberty to mention the matter before the appropriate Bench for early hearing.

The LPA is accordingly disposed of."

3. On October 11, 2002 the Civil Writ Petition No. 817/1999 was dismissed by Hon'ble Justice Madan B. Lokur on observing complete non-compliance with the Orders dated 28.5.2001. The Court held that the "Workman is entitled to take such steps as are necessary for effectuating the orders passed by this Court as well as the Award passed by the learned Labour Court". Thus ended the Management's abortive attempt to assail the Award.

4. The view that the last wages drawn, as envisaged in Section 17B of the Industrial Disputes Act, should not be less than the minimum wages applicable from time-to-time was also reiterated by this Court in a detailed Judgment in Delhi Transport Corporation v. Presiding Officer, . The challenge thereto came to be considered by the Division Bench of this Court in LPA Nos. 425/2001, 427/2001 and 151/2002, etc. and the view that was preferred was that wherever minimum wages were made the basis of the Order under Section 17B, the deposited amount must be released to the Workman unconditionally so far as the last drawn wages were concerned, and on the furnishing of security by way of an undertaking on an Affidavit to refund the differential between this amount and the minimum wages. The opinion of the Division Bench on the subject can be understood from the extracted portion of the judgment in Delhi Transport Corporation v. PO, Labour Court I and Ors., 2003 VI AD (DELHI) 205, which read thus:

"In our view the facts of the present cases which indicate that only minimum wages have been ordered and the interest of justice and mandate of the Minimum Wages Act which require that minimum wages must be paid, clearly leads to the conclusion that for payment up to minimum wages, no terms and conditions ought to be imposed. Consequently we are of the opinion that the view taken in the Hindustan Carbide (supra) for securing the payment of minimum wages over and above wages last drawn was made on the facts and circumstances of that case.

Therefore, in our view only if the payment ordered under Section 17B is more than the minimum wages, then the amount so paid beyond the minimum wages may be secured so as to make its recovery possible for the employer as per the law laid down in Dena Bank II decision. However, in light of our discussion, the statutorily mandated minimum wages are bound to be paid by the employer without terms and conditions and therefore cannot come under the ambit of the provision of security for its repayment.

However, since another Division Bench of this Court in Hindustan Carbide's case (supra) has ordered that payment of minimum wages beyond and greater than the wages last drawn must be secured by imposing terms and conditions and even though we are of the view that there is no binding principle and precedent which emerges from the said judgment which was confined to the facts of that case, nevertheless in order to avoid any possible divergence of view, we direct that only the issue as to whether payment by way of minimum wages directed to be made beyond wages last drawn must be on terms and conditions, ought to be referred to a Full Bench.

We further direct that even though we are of the view that payment up to minimum wages does not require any terms and conditions to be imposed, yet to avoid any possible divergence of opinions between our judgment and that of Hindustan Carbide's judgment (supra), we think that in the interest of justice since the employees concerned are being granted relief on the basis of Section 17B which postulates unemployment, the amount of minimum wages payable as per the Single Judge's judgment be secured, only to the extent it is beyond the wages last drawn on furnishing of security by way of an undertaking on affidavit, to refund such amount, to be given by the concerned employee. We hold the view that requirement of any other form of security for the difference between wages last drawn and minimum wages are not warranted by the facts of the case and the interest of justice as the recipient is without employment. Indeed furnishing of any other form of security by an unemployed employee for securing payment of minimum wages would make such payment illusory."

5. The Special Leave Petition filed against this judgment has been dismissed by the Hon'ble Supreme Court in Special Leave to Appeal (Civil) 8085/2002, 8779 / 2002, etc., leading to the firm conclusion that the minimum wages applicable from time-to-time can be made the foundation of an Order under Section 17B of the Industrial Disputes Act and can be ordered to be paid to the Workman/Respondent, with the rider that this amount can be withdrawn or released on the Workman providing an undertaking by means of an affidavit to refund the differential.

6. Learned Counsel for the Workman has relied on the decision of the Apex Court in Delhi Development Authority v. Skipper Construction and Anr., in which the Apex Court took suo motu notice of the contempt of its Orders. Reliance has also been placed on a similar approach adopted by the Hon'ble Supreme Court in the case titled In Re. Arundhati Roy, ; In Re, Sanjiv Datta, Deputy Secretary Ministry of Information & Broadcasting, New Delhi & Ors., . But in my view, none of these judgments apply to the factual matrix obtaining before me, and hence they do not advance the case of the Petitioner.

7. High Courts across our country have permitted Industrial Awards to be assailed by invoking the extraordinary powers contained in Article 226 of the Constitution. As in the case of Appeals, the Petitioners must obtain an interdict against the continuance of execution proceedings. In this context, it will be recalled that such orders have been passed on 12.2.1999 conditional on the deposit of the amount allowed in the impugned Award. It is indeed a matter of regret that Counsel for the Appellant has not honoured his undertaking to the Court to deposit the entire awarded amount within six weeks, at the first hearing of the Letters Patents Appeal No. 339/1991 as is evident from a reading of Orders dated August 9, 2001. No deposit was made, but even then the only effect of this failure would be that the impugned Order under Section 17B would at once get reactivated. The consequence of a failure to abide by the orders of the Division Bench, which in fact were the same as those passed under Section 17B, was the eventual dismissal of the Writ Petition itself with the result that the Award became final and unimpeachable. The mode of execution of the Award is covered inter alia by Section 33(C) of the Industrial Disputes Act. Thereafter, consequent upon an adjudication of the Petitioner's application under Section 17B of the Industrial Disputes Act and its subsequent non-compliance, the Writ Petition itself was dismissed. The question is whether apart from these provisions, a petition under Sections 11 & 12 of the Contempt of Courts Act would also be maintainable. It is in this context that the opinion expressed in T. Sudhakar Prasad v. Govt. of A.P. and Ors., JT 2001 (1.) SC 204 is relevant. The Apex Court opined that:

"Articles 129 and 215 of the Constitution of India declare Supreme Court and every High Court to be a Court of Record having all the powers of such a Court including the power to punish for contempt of itself. These Articles do not confer any new jurisdiction or status on the Supreme Court and the High Courts. They merely recognise a pre-existing situation that the Supreme Court and the High Courts are Courts of Record and by virtue of being Courts of Record have inherent jurisdiction to punish for contempt of themselves. Such inherent power to punish for contempt is summary. It is not governed or limited by any rule of procedure excepting the principles of natural justice. The jurisdiction contemplated by Articles 129 and 215 is inalienable. It cannot be taken away or whittled down by any legislative enactment subordinate to the Constitution. The provisions of the Contempt of Courts Act, 1971 are in addition to and not in derogation of Articles 129 and 215 of the Constitution. The provisions of Contempt of Courts Act, 1971 cannot be used for limiting or regulating the exercise of jurisdiction contemplated by the said two Articles.

8. In R.N. Dey and Ors. v. Bhagyabati Pramanik and Ors., , the Apex Court has specifically deprecated the use of Contempt of Court jurisdiction as a method of executing a decree or implementing an Order for which the law provides appropriate remedy. It had also noted that the question of contempt is a matter between the Court and the Contemnor and the aggrieved person has no right to insist that the Court should exercise such jurisdiction.

9. My attention has been drawn to an erudite decision of the Division Bench of the Gujarat High Court in Kishorbhai Dahyabhai Solanki v. Nagjibhai Muljibhai Patel, decided on 7.3.2002 which I humbly recommend for reading. The Division Bench has digested the case law on the question of whether a Workman can directly approach the High Court under its powers to commit for contempt in respect of Awards published under the Industrial Disputes Act. The conclusion arrived at by the Division Bench is that this is impermissible; that the I.D, Act is a Code or pandect in itself containing an in built mechanism for recovery of monetary benefits, etc. inter alia under Section 33C of that Act. The Bench expressed their unwillingness to initiate proceedings under the Contempt of Courts Act and directed the Workman to approach the Authorities of the Labour Court/Industrial Tribunal for execution and implementation of Awards. It must however, be noted and underscored that the Workman who had invoked the contempt jurisdiction of the Gujarat High Court in Kishorbhai Dahyabhai Solanki case, (supra) had approached the Court directly, without taking recourse to the procedure for execution of the Awards established under the I.D. Act. This is not the situation in the present case since it is Management which had filed a Civil Writ Petition under Article 226 of the Constitution assailing the Award. The Rubicon and distinguishing feature is that the Orders in respect of which the Workman has asserted non-compliance is not the Award, but interim Orders passed by this Court from time-to-time. Learned Counsel for the Management/alleged Contemnor has in this context relied on the observations of the Division Bench in Abdul Razack Sahib v. Mrs. Azizunnissa Begum and Ors., , where the view which was preferred was that the non-compliance by the Appellant with Orders directing him to deposit the arrears of rent due to the Petitioner does not tantamount to contempt of Court. The penal sanctions under the contempt procedure should not be invoked for default of compliance with such Orders. It had been observed that having regard to the high function of a Court of Justice proceedings by way of Contempt of Court should not be employed as a legal thumbscrew by a party against his opponent for enforcement of his claim. The Court, however, had also recorded that no undertaking had been given by the Petitioner to the Court at any stage of the proceedings to deposit the monies into Court. In the case in hand, as has already been noted above, Counsel for the Petitioner had given an undertaking before the Division Bench for depositing the awarded amount.

10. The facts of the present case have to be considered in this conspectus and analysis of the law. On 12.2.1999 this Court had directed the Petitioner to deposit the amount ordered in the impugned Award within four weeks. This is clearly the sine qua non for Mukul Mudgal, J. to have thought it fit to exercise the extraordinary writ jurisdiction under Article 226 of the Constitution. It is often seen that the operation of an impugned Order or Award is stayed subject to the deposit of a particular amount. In such an event in case the deposit is not made the predictable consequence would be that the impugned Order/Award would continue to operate and the Petition may also be dismissed. This is not how the Order reads in the case in hand. However, even in these circumstances, I do not think it appropriate to view the conduct of the Management as contemptuous. Had the non-compliance of the Orders been brought to the notice of the Court in CW No. 817/1999, it is quite possible that the Court may have dismissed the writ petition forthwith. It is indeed a slender and fragile thread with which the Management has woven the fabric of its defense. Counsel for the Workman has submitted that execution proceedings had been initiated but it does not appear that the Management had quoted and taken advantage of the Orders dated 12.2.1999 or for that matter any other Order passed by this Court with the intent to halt, delay or frustrate the recovery proceedings initiated under the I.D. Act, In fact, it is Management's stand that till date it has not received any notice of the existence of such proceedings. As has been seen, on 9.8.2001 Counsel for the Appellant/Management had undertaken before the Division Bench to deposit the entire awarded amount within six week from that day. It had thereupon been ordered that upon depositing the amount the operation of the impugned Order under Section 17B would be stayed. Once again I would prefer to give the benefit of the doubt to the Management so far as invocation of punitive powers under contempt jurisdiction since the effect of the non-observance of the Orders dated 9-8.2001 would be that the Order under Section 17B would continue to operate. The fact that Counsel for the Management had given an undertaking which had not been complied with leaves a lot to be desired from the Advocate concerned. I shall say no more on this aspect. A delay of several years has occurred, to the detriment of the workman and the unfair advantage of the Management. The workman may understandably be peeved with the loss of the higher wages granted under Section 17B,but for this he is himself partly responsible, inasmuch as he should have immediately drawn the attention of the Court to the relevant non-compliance. The Orders of Madan B. Lokur, J. dated October 11, 2002 have also been mentioned above and these visit the consequences of failure to comply with the Orders passed by Mukul Mudgal, J. passed on 28.5.2001. The consequences have followed the event. The dismissal of the Writ Petition is subsequent to the disposal of the Appeal against the Order under Section 17B of the I.D. Act. Had the non-compliance with the initial Order dated August 9, 2001 been brought to the notice of the Division Bench, it may have dismissed the Appeal forthwith. The immediate and far-reaching repercussion of the dismissal of the writ petition is that the much more favorable Order under Section 17B vis-a-vis the Award may not become recoverable. However, so far as reinstatement is concerned, it has now been settled by the Hon'ble Supreme Court that such an Award can be enforced through the medium of a Writ Petition under Article 226

11. For all these reasons, I would prefer to dismiss the Petition, since I am of the opinion that a party is punishable under the Contempt of Courts Act or under Article 215 of the Constitution in which where there is contumacious disobedience of judicial Orders, or the alleged Contemnor has taken advantage of the Order while willfully failing to fulfill all the obligations cast upon him.

12. The petition is dismissed and the notice of contempt is discharged.