Delhi High Court
Mohit Electronics vs Workman Tahir Hussan on 25 July, 2012
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 25.07.2012
+ LPA 71/2012
MOHIT ELECTRONICS ... Appellant
versus
WORKMAN TAHIR HUSSAN ... Respondents
Advocates who appeared in this case:
For the Appellant : Mr Viraj Datar and Mr Vineet Jhanji.
For the Respondent : Mr Anuj Aggarwal.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
1. This appeal is directed against the judgment/order dated 18.01.2012
passed by a learned Single Judge of this court in CM No.21618/2010 and
WP(C) No.6284/2004 whereby the writ petition of the appellant herein was
dismissed on the ground that there was non-compliance of an order passed
under Section 17B of the Industrial Disputes Act, 1947 inasmuch as the
allegation was that the appellant had not complied with the said order by
not paying wages to the respondent from August 2008 onwards. By virtue
of the impugned order contempt proceedings were also initiated and the
appellant's proprietor Mr Ravinder Kumar who was present in court on the
date on which the impugned order was passed was directed to show cause
as to why he be not proceeded against for having committed contempt of
court.
2. The learned counsel for the appellant submitted that non-compliance
of an order passed under Section 17B of the said Act could not, ipso facto,
lead to dismissal of the writ petition and, secondly, contempt proceedings
could also not be initiated inasmuch as the respondent had the remedy
under Section 33C(2) of the said Act. The learned counsel also drew our
attention to that part of the order where his submission had been recorded.
The said portion reads as under:-
"When it was put to the learned counsel as to what
consequences can follow because of admitted non-
compliance of the direction by this court his answer was
that if the non-compliance is intentional and willful then
certainly the writ petition itself can be dismissed. It has also
been conceded that for the same reason the proprietor of the
petitioner firm can be proceeded against for having
committed contempt of the court also."
3. The learned counsel for the appellant submitted that the submissions
made by him before the learned Single Judge were that the writ petition
could be dismissed and contempt proceedings could be initiated if the non-
compliance was intentional and or willful. Without going into the question
of whether the non-compliance was intentional and/or willful, the court
could not, simply because there was non-compliance, dismiss the writ
petition and initiate contempt proceedings. We note from the order in
appeal that while this submission of the learned counsel for the appellant
was recorded, there is no finding returned by the learned Single Judge as to
whether the non-compliance was intentional and willful or not. Despite the
fact that there is no such finding, the learned Single Judge went on to
dismiss the writ petition and also initiate contempt proceedings against the
proprietor of the appellant. This, in our view, was an error.
4. The issue also stands settled by a decision of a Division Bench of this
court in the case of DTC vs. Gurcharan Singh, LPA No.132/2012 decided
on 30.03.2012, wherein the Division Bench observed as under:-
"13. One of us (Rajiv Sahai Endlaw, J.) in Govt. of NCT
of Delhi Vs. D.S. Bawa MANU/DE/1423/2010 had the
occasion to consider whether a writ petition can be
dismissed for the reason of non compliance of the order
under Section 17B of the Act. Notice was taken of
Hindustan Zinc Ltd. Vs. Industrial Tribunal (2001) 10
SCC 211 deprecating the practice of disposing of writ
petitions for the reason of non-compliance with the order
under Section 17B, without dealing with the merits and
the judgment of the Division Bench of the Madhya
Pradesh High Court in Krishi Upaj
Mandi Samita Bada Malhara Vs. Yashwant Singh
Bundela MANU/MP/0622/2007 to the same effect. It was
thus held that the writ petition challenging the award of
the Industrial Adjudicator cannot be dismissed for non
compliance of the order under Section 17B of the Act.
Mention may also be made of another judgment, again of
one of us (Rajiv Sahai Endlaw, J.) in Vimal Kumar Vs.
Ramesh Negi MANU/DE/2041/2011, the question
wherein also was whether the remedy of contempt was
available against non compliance of an order under
Section 17B of the Act. Notice therein was taken of Uma
Shankar Vs. Hindustan Carbide Pvt. Ltd.
MANU/DE/0415/2004 where this Court had dismissed the
contempt petition for the violation of order under Section
17B of the Act and to T. Sudhakar Prasad Vs. Govt. of
A.P. MANU/SC/0811/2000 and of R.N. Dey Vs.
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. Reliance was also
placed on Kishorbhai Dahyabhai Solanki Vs. Nagjibhai
Muljibhai Patel (2002) II LLJ 1034 Guj (DB) and on
Abdul Razack Sahib Vs. Mrs. Azizunnissa Begum AIR
1970 Mad 14 holding 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.
Reliance was also placed on Dr. Bimal Chander Sen Vs.
Kamla Mathur 1983 Cri LJ 495, Shri Puneet Parkash
Vs. Shri Jai Parkash MANU/DE/0773/2010 and on
Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala
146 (2008) DLT 100 holding that once a mechanism for
enforcement of the order is provided, contempt would not
lie. It was thus held that since the order under Section 17B
is enforceable under Section 33C(1) of the Act, contempt
would not lie.
14. We concur with the said reasoning and do not feel the
need to discuss the matter any further."
5. In view of clear enunciation of the settled principles, the writ petition
could not have been dismissed merely because there was non-compliance
of an order passed under Section 17B of the said Act. Furthermore, such
non-compliance could also not lead to the initiation of contempt
proceedings. Consequently, following the said decision in the case of
Gurcharan Singh (Supra) we allow this appeal and set aside the impugned
order dated 18.01.2012 and remit the matter to the learned Single Judge for
a decision in accordance with law. The respondent has a remedy under
Section 33C(2) of the said Act which he may pursue, in accordance with
law.
6. The appeal stands allowed as above. There shall be no order as to
costs.
BADAR DURREZ AHMED, J
SIDDHARTH MRIDUL, J
JULY 25, 2012
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