Hamdard Employees And General ... vs Janab Chief Mutawalli Sahib And ...
2013 Latest Caselaw 1606 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+                         WP(C) No.2246/2013

%                                                         April 09, 2013

HAMDARD EMPLOYEES AND GENERAL WORKERS UNION
(REGD.)                                 ..... Petitioner
              Through: Mr. Pardeep Gupta, Advocate.


                          versus

JANAB CHIEF MUTAWALLI SAHIB AND ORS. ..... Respondents

Through: Ms. Shawani Bari, Advocate for respondent Nos.3 and 4.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No.4275/2013 (exemption)

Exemption allowed subject to just exceptions.

C.M. stands disposed of.

+ W.P.(C) No.2246/2013 and C.M. No.4274/2013 (stay)

1. This writ petition filed by the petitioners-association seeks the

following reliefs:-

"(i) To quash the orders dated 22.9.2011, 24.9.2011, 28.9.2011, 30.9.2011 and 1.10.2011 respectively passed by the Respondent No.1 vide which the Affidavits filed by the petitioners in compliance of the orders dated 10.2.2011 passed by Hon‟ble Delhi High Court in L.P.A. No.2234/2005 has been rejected;

(ii) Respondents be directed to accept the Affidavits filed by the petitioners and release the benefit of „Shifting Bonus‟ to the petitioners; and

(iii) Any other direction/order which this court may deem fit and proper in the facts and circumstances of the case."

2. De hors the wording of the prayer clauses really the dispute is

with respect to the claim of the members of the petitioners for „shifting

bonus‟ from the employer/respondent No.1.

3. Before I proceed to dispose of the writ petition on merits there

are two things which have caused some amount of disquiet in the mind of

this Court. This is on account of two reasons. The first reason is the

following observations made in a part of para 1 of the writ petition and

which reads as under:-

"It may be clarified here that though there has been two rounds of litigations i.e. in respect of L.P.A. and Review etc. but in view of the said order dated 29-7-2003 which were never challenged by the petitioners before this Hon‟ble court or before Hon‟ble Supreme Court of India etc. the petitioners could not succeed and it was observed by the Hon‟ble Supreme Court of India verbally that you should challenge the judgment/orders dated 29-7-2003, which have not been implemented. Hence, the present Writ Petition with the sole object to get quashed those impugned orders dated 22.9.2011, 24.9.2011, 28.9.2011, 30.9.2011 and 1.10.2011 respectively, passed

by the respondents vide which the lame excuses have been taken by the respondents and rejected the genuine affidavits filed in respect of order dated 10-2-2011 passed by this Hon‟ble Court in LPA No.2234/2005.

Hence this Writ Petition before this Hon‟ble Court."

(underlining added)

3. The second reason is the question of law (h) which has been

framed for entertaining this writ petition and which reads as under:-

"h)Whether it is against the judicial propriety for the Division Bench of the Delhi High Court to virtually negate the entitlement of shifting bonus to the poor workmen, when admitted fact on record is that the Division Bench of the High Court has not set aside the judgment and order passed by the Single Judge of the High Court, which specifically held the entitlement of workmen in getting „shifting bonus‟ without any embargo or condition?" (underlining added)

4. When we see the averments which are made by the petitioners

in para 1 of the writ petition which has been reproduced above, it is claimed

that this Court is moved by way of this writ petition because the Supreme

Court orally observed that the petitioners must file proceedings for

implementation of the judgment/order dated 29.7.2003 which has not been

implemented. I do not think it is permissible for litigants to state on affidavit

the oral observations made by any Court, much less allegedly by the highest

Court on the land. This is an unacceptable practice.

5. The second disturbing aspect is question No.(h) and which in

fact amounts to contempt of Court. When we refer to question (h) the same

is whether the Division Bench of this Court had judicial proprietary in

passing an order on merits in a Letters Patent Appeal (LPA). I fail to

understand even by basic standards of pleadings as to how such

contemptuous statements can be made against a judgment of a Division

Bench of this Court which has become final. This aspect has caused disquiet

in the mind of this Court because there is a particular extent to which a

litigant can go in making averments and accepted requirements of averments

cannot be breached. Laxmanrekha at all times must be observed.

6. The aforesaid shows that the petitioners have scant regard for

the judicial process. In any case, without being affected by the aforesaid, let

me decide the issue as claimed by the petitioners.

7. A reading of the writ petition shows that it cannot be disputed

that the issue of claim of entitlement of the petitioners for shifting bonus on

account of the factory of the respondent No.1 being shifted from Delhi to

Ghaziabad was decided in favour of the petitioners in terms of the judgment

dated 29.7.2003 in W.P.(C) No.4415/2001 by a learned Single Judge of this

Court. An LPA numbered as LPA No. 2234/2005 was preferred by the

petitioners and which was disposed of by a Division Bench of this Court on

10.2.2011 directing giving of benefits to the petitioners subject to

compliance of requirement of filing affidavits. Admittedly, this order of

LPA has become final and the issue is only of the compliance thereof.

8. Issues of compliance of orders or extension of time for

compliance of orders are not issues which can be adverted to in independent

proceedings. Admittedly, the affidavits filed by the petitioners were beyond

time. Once they were beyond time petitioners cannot get the benefits in

terms of judgments of learned Single Judge dated 29.7.2003 and of the

Division Bench dated 10.2.2011 unless the period is extended. Even

assuming that there is no requirement of extension of period and the

respondents are not giving the benefits of the judgment of learned Single

Judge dated 29.7.2003, as confirmed by the Division Bench in L.P.A.

No.2234/2005 on 10.2.2011, it will be an issue of violation of orders and the

remedy would be proceedings for implementation of the orders by seeking

reliefs that the orders be not violated i.e initiation of contempt proceedings.

This aspect is surely not in the realm of independent proceedings again

seeking to raise issues. Possibly the petitioners may be better advised either

to apply for extension of time or for initiating contempt proceedings. In fact,

I put the suggestion to the counsel who is appearing for the petitioners but

the counsel for the petitioners states that this writ petition lies and the same

be decided.

9. In view of the above, the petition being wholly misconceived is

dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J APRIL 09, 2013 Ne