Roop Singh And Roshama Varghese vs Ramesh C. Kapoor
2007 Latest Caselaw 2397 Del

JUDGMENT

Hima Kohli, J.

1. The present contempt petitions are preferred by the petitioners/workmen against the respondent/proposed contemnor, petitioner in WP(C) No. 6527/2001, stating inter alia that the latter is in contempt of the order dated 17th March, 2005 passed in the aforesaid writ petition directing him to pay the petitioners/workmen minimum wages from the date of passing of an award dated 5th June, 2000 by the Labour Court, till disposal of the writ petition, and that as the disobedience on the part of the respondent/proposed contemnor is willful, he is liable to be punished for contempt of Court. Notice was issued on the petitions on 8th December, 2005.

2. A perusal of the record shows that on 21st February, 2006, the respondent/proposed contemnor had offered to take the petitioners in employment. Vide order dated 24th August, 2006, the petitioners were given liberty to approach the respondent/proposed contemnor and it was recorded that they shall be given employment at the wages not less than minimum wages. Thereafter, there arose a dispute inter se the parties with regard to joining duty. While the stand of the petitioners is that they repeatedly reported for duty, the stand of the respondent/proposed contemnor is that nobody turned up to join duty.

3. Counsel for the petitioners contended that the respondent/proposed contemnor has not shown his bona fides till date and that apart from paying a paltry sum of Rs. 5,000/- to Sh.Roop Singh and Rs. 7,000/- to Ms.Roshama Varghese on 29th March, 2006, he has not shelled out a penny thereafter and thus it is a clear cut case of willful disobedience of the order dated 22nd November, 2005. He pointed out that as on 31st July, 2007, Sh.Roop Singh was entitled to receive Rs. 2,48,308/- whereas Ms.Roshama Vaghese was entitled to receive Rs. 2,86,751/- towards arrears of wages.

4. Counsel for the petitioners submitted that the respondent/proposed contemnor is not under any financial distress and quite capable of paying wages of the petitioners under Section 17B of the Industrial Disputes Act, 1947 (hereinafter referred to as `the Act') as directed vide order dated 17th March, 2005. He further submitted that the respondent/proposed contemnor had filed a review application against the aforesaid order, which was rejected vide order dated 2nd May, 2005. Thereafter, he preferred an appeal, against the said order before the Division Bench, being LPA No. 2553/2005, which was also rejected vide order dated 22nd November, 2005. Thus, though the order dated 17th March, 2005 has attained finality, the respondent/proposed contemnor has failed to pay the arrears of wages to the petitioners payable under Section 17B of the Act.

5. The aforesaid stand of the petitioners is not without merit inasmuch as despite swearing an affidavit dated 16th May, 2007, stating inter alia that the respondent/proposed contemnor was paying Rs. 5,000/- and Rs. 7,000/- respectively to each of the petitioners, namely, Sh.Roop Singh in Cont. Cas.(C) No. 1296/2005 and Ms.Roshama Varghese in Cont.Cas (C) No. 1297/2005, no amount whatsoever was actually paid to them. Instead, on 30th November, 2007, counsel for the respondent/proposed contemnor stated that he had brought two cheques for a sum of Rs. 5,000/- and Rs. 7,000/- respectively, which he was willing to tender to the petitioners.

6. It is pertinent to note that the respondent/proposed contemnor has been seeking repeated adjournments while assuring the Court that he be permitted to show his bona fides and make payments to the petitioners in compliance of the orders dated 17th March, 2005. It is also relevant to note that an affidavit dated 16th May, 2007 was filed by the respondent/proposed contemnor stating therein that being one of the three partners of the firm, M/s R.C.Kapoor and Co., he was liable to pay 1/3rd share of the wages payable under Section 17B of the Act and that being a senior citizen and a retired professional (Chartered Accountant), he should be allowed to pay the amounts in Installments. It was submitted that there is no willful disobedience of the orders dated 17th March, 2005 and that the respondent/proposed contemnor is still ready and willing to pay the liability as fixed by this Court in terms of the aforesaid order. He further submitted that the respondent/proposed contemnor may be given reasonable Installments to pay the amounts to the petitioners.

7. The plea taken by the respondent/proposed contemnor to the effect that he is only liable to pay 1/3rd share of the liability as per the order dated 17th March, 2005 on the ground that he is an ex-partner of M/s Ramesh C.Kapoor and Co., a firm of Chartered Accountants, of which two others were also partners, cannot be a subject matter of consideration while deciding the present contempt petitions. A perusal of the memo of parties filed in WP(C) No. 6527/2001 shows that the only petitioner before this Court in the writ petition is the respondent/proposed contemnor herein in his capacity as an ex-partner of the firm. The other two partners of the firm are however not parties in the writ proceedings. It was for the respondent/proposed contemnor to implead the other two partners of the firm as co-petitioners or as respondents. However, having preferred the writ petition in his personal capacity and obtained a stay order with respect to the implementation of the award dated 5th June, 2000 passed by the Labour Court, directing reinstatement with full backwages, the respondent/proposed contemnor is under an obligation to comply with the order dated 17th March, 2005, passed on the application filed by the respondents under Section 17B of the Act directing payment of minimum wages from the date of passing of the award, till disposal of the writ petition.

8. It is also relevant to note that when despite availing of several opportunities to pay the petitioners, the respondent/proposed contemnor failed to do so, vide order dated 16th April, 2007, he was directed to remain present in Court. Vide order dated 21st May, 2007, the SDM of area concerned was also directed to take steps to recover the amount payable by respondent/proposed contemnor as arrears of land revenue. However, the SDM, Daryaganj also drew a blank with respect to the movable/immovable assets of the respondent/proposed contemnor. As it was reported that the numbers of the saving Bank and current accounts stated to be maintained by him with ICICI Bank, Darya Ganj were incorrect, the respondent/proposed contemnor was directed on 25th October, 2007, to place on record copies of the statement of account for the period with effect from 1st April to 30th September, 2007 in respect of both the accounts. A perusal of the statements of both the accounts filed by the respondent/proposed contemnor vide affidavit dated 6th November, 2007 showed a balance of a few hundred rupees. Simultaneously, the Income Tax Department was directed to place on record copies of the income tax returns of the respondent/proposed contemnor for the assessment years 2003-2004, 2004-2005 and 2006-2007.

9. Pursuant to the orders dated 20th November, 2007, the Standing Counsel for the Income Tax Department has placed on record copies of the income tax returns of the respondent/proposed contemnor, for the assessment years 2003-04, 2004-05 and 2006-07. A perusal of the profit and loss accounts of the respondent/proposed contemnor for the year ending 31st March, 2006 shows receipt of professional fee of Rs. 15,45,200/-, against which an expenditure of Rs. 12,69,011.91 paise Rs. 15,45,200 (-) Rs. 2,76,188.09 has been shown thus reflecting a net profit of Rs. 2,76,188.09 paise. After adjusting a liability of Rs. 1,33,806.78 paise, being carried forward from the previous year, a net capital of Rs. 2,85,994.87 paise is reflected in his balance sheet. The total tax payable for the assessment year 2006-07 has been shown as Rs. 28,924/-. Further, the returns for the year ending 31st March, 2003 and 31st March, 2004 show that the respondent/proposed contemnor paid interest on a housing loan to the tune of Rs. 41,420/- and Rs. 1,33,281/- respectively. The return also shows a claim of deduction of Rs. 30,000/- on account of donations made by the respondent/proposed contemnor in the year 2005-2006.

10. Thus the income tax returns of the respondent/proposed contemnor amply demonstrate his financial ability to pay the wages under Section 17B of the Act to the petitioners. His claim that he has retired as a Chartered Accountant is also not borne out from a perusal of the returns filed by him inasmuch as for the year ending 31st March, 2006, he has shown receipt of professional fee of Rs. 15,45,200/-. On being pointedly asked to reveal the particulars of the immovable property owned by him, against which he claimed a set off of Rs. 41,426/- and Rs. 1,33,281/- on account of interest on housing loan, for the years ending 31st March, 2003 and 31st March, 2004 respectively, it was contended on his behalf that he was not the owner of the property, but only a co-borrower and that he did not own any immovable property.

11. It is also not out of place to note that despite being directed to remain present in court vide order dated 16th April, 2007, frequent exemptions from personal appearance were sought on behalf of the respondent/proposed contemnor on several dates, on different grounds and he was duly accommodated by the Court on assurance given on his behalf that his intention to clear the outstanding amount was bonafide and he was not trying to avoid his liability. Regretfully, inspite of repeated opportunities being granted to him, the respondent/proposed contemnor has remained recalcitrant.

12. However, taking into consideration the fervent pleas made on behalf of the respondent/proposed contemnor and keeping in mind that he is a senior citizen, claiming to be suffering from various ailments, the Court deems it fit to grant one last opportunity to the respondent/proposed contemnor to show his bonafides by paying a sum of Rs. 75,000/- to each of the petitioners on or before the next date of hearing, failing which, the Court shall be compelled to conclude that the non-compliance of the orders dated 17th March, 2005 passed in WP(C) No. 6527/2001, is willful on the part of the respondent/proposed contemnor thus leaving no option with the Court, but to proceed to pass appropriate orders under the provisions of Section 12 of the Contempt of Courts Act and Article 215 of the Constitution of India.

13. List on 29th January, 2008 along with WP(C) No. 6527/2001. The respondent/proposed contemnor shall remain present in Court till orders to the contrary are passed.