Vimal Kumar vs Ramesh Negi & Anr.
2011 Latest Caselaw 1902 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 1st April, 2011

+                         CONT.CAS(C)173/2011

VIMAL KUMAR                                      ..... Petitioner/Relator
                          Through:     Mr. R.K. Saini with Mr. Sitab Ali
                                       Choudhary and Ms. Aradhna Mittal,
                                       Advocates

                                     Versus

RAMESH NEGI & ANR.                     ..... Respondents/Alleged Contemnor
                Through:               None.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.    Whether reporters of Local papers may
      be allowed to see the judgment?                     Yes

2.    To be referred to the reporter or not?              Yes

3.    Whether the judgment should be reported             Yes
      in the Digest?


RAJIV SAHAI ENDLAW, J.

1. Contempt is averred of the order dated 11th November, 2009 of this

Court on an application of the petitioner / relator under Section 17B of the

Industrial Disputes Act, 1947 directing the alleged contemnor to pay to

the petitioner / relator from the date of the award and till the decision of

the writ petition, last drawn wages or minimum wages whichever is higher

and on the other terms and conditions stipulated in the order. It is the case

of the petitioner that the alleged contemnors are in violation of the said

order.

2. The petition came up first before this Court on 10 th March, 2011

when attention of the counsel for the petitioner/relator was invited to an

order dated 17th January, 2011 of this Bench in Cont.Cas(C) 26/2011 titled

Nishikesh Tyagi v. Sh. P.R. Santhanam holding a contempt petition to be

not maintainable with respect to an order under Section 17B of the ID Act.

Reliance in the said order was placed on another judgment of this Court in

Uma Shankar v. M/s Hindustan Carbide Pvt. Ltd. 111(2004) DLT 270

where also a contempt petition filed for the alleged violation of order

under Section 17B was dismissed. The counsel for the petitioner had then

sought time to consider the matter.

3. The counsel for the petitioner has today urged that the judgment of

this Court in Uma Shankar (supra) cannot be read as laying down that a

contempt petition would not be maintainable for violation of an order

under Section 17B of the Act. He has argued that in Uma Shankar the

employer was in violation not only of the order under Section 17B of the

ID Act but also of the terms and conditions on which the stay of the award

of the Labour Court/Industrial Tribunal challenged in that case was

granted; that owing to the said violation, the writ petition stood dismissed;

that it was thereafter that the contempt petition for non compliance of the

order under Section 17B was filed. It is argued that it was in these

circumstances, since the writ petition already stood dismissed and further

since owing to the violation/breach of the order under Section 17B the

petitioner employer in that case had already been punished by the

dismissal of its writ petition, that this Court held that the contempt petition

would not be maintainable and that the remedy of the workman is under

Section 33C of the ID Act. It is urged that in the present case the writ

petition in which the order under Section 17B of the ID Act was made is

still pending and thus what has been laid down in Uma Shankar, would

not apply.

4. Before proceeding to consider the aforesaid argument, I may notice

that I have had an occasion in Government of NCT of Delhi Vs Shri D.S.

Bawa MANU/DE/1423/2010 to consider whether non-compliance of

order under Section 17B necessarily results in dismissal of the writ

petition challenging the award of the Labour Court/Industrial Tribunal.

Relying on Hindustan Zinc Ltd. v. Industrial Tribunal (2001) 10 SCC

211 it was held that a writ petition cannot be disposed of for the reason of

non compliance with the order under Section 17B, without dealing with

the merits.

5. I am unable to agree with the counsel for the petitioner that the

judgment in Uma Shankar is not a precedent for the proposition that non

compliance of order under Section 17B is not contumacious.

Undoubtedly, in Uma Shankar the writ petition in which the order under

Section 17B was made stood dismissed by the time the contempt petition

was filed. However, the contempt petition was held to be not

maintainable not for the reason of the writ petition having stood

dismissed. This Court referred to T. Sudhakar Prasad v. Govt. of A.P. JT

2001 (1) SC 204 and to R.N. Dey v. Bhagyabati Pramanik 2000 (4) SCC

400 deprecating 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. This Court also relied upon Kishorbhai Dahyabhai

Solanki v. Nagjibhai Muljibhai Patel (2002) II LLJ 1034 Gujarat (DB)

and on Abdul Razack Sahib v. Mrs. Azizunnissa Begum AIR 1970

Madras 14 to hold that penal sanctions under the contempt procedure

should not be invoked for default of compliance with such orders and that

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. It is on the basis of the said

principles that this Court held that the contempt petition did not lie. Uma

Shankar is thus a precedent on all fours against the maintainability of this

petition.

6. I have in Nishikesh Tyagi (supra) given yet another reason for

holding contempt to be not maintainable. Reliance was placed on Dr.

Bimal Chander Sen v. Kamla Mathur 1983 Cri LJ 495, Shri Puneet

Parkash v. Shri Jai Parkash MANU/DE/0773/2010 and on Anand

Kumar Deepak Kumar v. Haldiram Bhujiawala 146 (2008) DLT 100 to

hold that once a mechanism for enforcement of the order is provided,

contempt would not lie.

7. The counsel for the petitioner/relator has not been able to controvert

that an order under Section 17B would be enforceable under Section

33C(1) before the Labour Court. Thus if the employer does not comply

with 17B order, the employee/workman can always approach the Labour

Court/Industrial Tribunal for enforcement thereof.

8. Even though Section 33C(1), as per its language is applicable where

any money is due to the workman from an employer under a settlement or an

award or under the provisions of Chapter VA or Chapter VB of the ID Act

and even though Section 17B does not fall in either of the said Chapters, but

the Supreme Court in Central Bank of India Limited v. P.S. Rajagopalan

AIR 1964 SC 743 held that Section 33C(1) provides for a kind of execution

proceedings and it contemplates that if money is due to a workman, the

workman is not compelled to take recourse to the ordinary course of

execution in the Civil Court but may adopt a summary procedure prescribed

by Section 33C(1) and that all that Section 33C(1) postulates is that a specific

amount is due to the workman and the same has not been paid to him and if

the appropriate Government is satisfied that the money is so due, then it is

required to issue a certificate for the said amount to the Collector and that

leads to the recovery of the said amount in the same manner as an arrear of

land revenue.

It was further held that if though Section 33C(1) contains words of

limitation and Section 33C(2) is free of such limitations but Section 33C(4)

further provides that the amounts found due under Section 33C(2) may be

recovered in the manner provided for in Section 33C(1). It would thus be

seen that Section 33C(4) widens the scope of Section 33C(1).

In my opinion, the amounts payable under Section 17B would also

fall in amounts due to an employer "under an award" inasmuch as the

same represent the amount payable statutorily during the time the

challenge to the award is pending before the High Court.

9. Mention must also be made of the recent dicta in Kaivalyadham

Employees Association Vs. Kaivalyadham S.M.Y.M. Samity

MANU/SC/1656/2009 where the Supreme Court though held that the

High Court could not direct an application under Section 17B to be

adjudicated by directing parties to lead evidence before the Labour Court

under Section 33C(2), nevertheless held that in certain cases the

provisions of Section 33C(2) may have to be resorted to in respect of an

order under Section 17B but not as a matter of course.

10. I may also notice that this Court has held the remedy of contempt to

be not available for breach of interim orders directing payment, in

proceedings other than under the ID Act. Reference in this context may

be made to Ajit Arjani v. Roma Arjani 111(2004) DLT 545 laying down

that contempt petition does not lie for violation of an order directing

payment of interim maintenance and the remedy for such violation is by

execution of the said order. Similarly in Puneet Prakash v. Jai Prakash

MANU/DE/0773/2010 contempt was held to not lie for non compliance of

a consent decree. It was held that the remedy was by way of execution.

The common thread running through the said judgments is that contempt

proceeding is not a substitute for execution. Though the Supreme Court

in Rama Narang v. Ramesh Narang (2006) 11 SCC 114 observed that

merely because an order or decree is executable, would not take away the

Court's jurisdiction to deal with a matter under the Contempt of Courts

Act, 1971 but provided the Court is satisfied that the violation of order or

decree is such, that if proved, it would warrant punishment under Section

13 of Contempt of Courts Act on the ground that the contempt substantially

interferes with the due course of justice; non compliance of Section 17B

order cannot be said to be interfering with the due course of justice also

for the reason hereinafter stated.

11. The occasion for passing an order under Section 17B arises only if

the employer prefers a proceeding against the award of the Labour

Court/Industrial Tribunal of reinstatement of the workman and if the

workman has not been employed in any establishment during the

pendency of such proceeding. The question of the workman being not

employed in any establishment during the pendency of such proceeding

would arise only if the High Court or the Supreme Court while

entertaining challenge to the award, stays the operation thereof. If it is

found that the employer has on the one hand obtained an order of stay of

the operation of the award of reinstatement and is on the other hand not

complying with the order under Section 17B, the appropriate remedy

would be to seek vacation of the said order of stay and whereupon the

employee would become entitled to execute the award of reinstatement

before the Labour Court. No case of contempt would still be made out.

12. Some of the other counsels for employee / workman in other similar

matters have argued that unless the jurisdiction of contempt is exercised in

such a situation, the workman would be compelled to file applications

under Section 33C month after month. It is also contended that the

procedure before the Labour Court / Industrial Tribunal is elaborate.

13. The Labour Courts/ Industrial Tribunals were constituted to provide

a speedy remedy to the workmen who are found to be constituting a class

amongst themselves entitled to speedy adjudication of their claims.

Though finding merit in the contentions that the lofty aspiration with

which the Labour Courts/Industrial Tribunals were constituted has not

been fulfilled and it is often found that the disposal of the disputes by the

Labour Court/Industrial Tribunal is taking longer than adjudication by the

Civil Courts, however, the same cannot digress the view of this Court on

the logic aforesaid. It is for the Industrial Tribunal/Labour Court to devise

ways and methods for enforcement of orders under Section 17B. If the

Labour Court/Industrial Tribunal finds that the employer is harassing the

workman in payment under Section 17B, the Labour Court/Industrial

Tribunal can always devise ways and means for ensuring such payment

regularly and month by month. Moreover if it is shown to this Court also

that the employer has by his/its conduct created a situation whereby

neither the award of reinstatement is being enforced/implemented nor is

the order under Section 17B abided by, this Court can always invoke its

jurisdiction under the Contempt of Courts Act, 1971 to punish the guilty.

14. Thus looked at from any perspective, the petition cannot be held to

be maintainable and is dismissed with liberty to the petitioner / relator to

avail of the alternative/appropriate remedy. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) APRIL 1, 2011 M