Sanjay Sugandhit Dhoop vs Rajinder Singh And Anr.
2013 Latest Caselaw 81 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     LPA 147/2012
      SANJAY SUGANDHIT DHOOP                                ..... Appellant
                            Through :   Mr. S.P. Gautam and Mr. Jitender
                                        Nath Pathak, Adv.
                   versus
      RAJINDER SINGH AND ANR.                          ..... Respondents
                            Through :   None


      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE V.K. JAIN

              ORDER

% 07.01.2013

The respondent No.1, who was employed with the appellant applied for leave on medical grounds and submitted a medical certificate in support of his application. The appellant asked him to get the same verified from ESIC, whereupon an industrial dispute was raised by him alleging termination of his services. Vide Award dated 29.1.2002, the Labour Court held that the act of the appellant amounted to retrenchment. The appellant filed WP(C) No.1760/2003 questioning the award dated 29.1.2002 passed by the Labour Court. In the writ petition, an application under Section 17-B of Industrial Disputes Act was filed by respondent No.1. The learned Single Judge, vide order dated 11th May, 2009 allowed the application and directed the appellant to pay the last wages drawn by respondent No.1 or minimum wages, whichever be higher, from the date of the award, till the disposal of the petition. The respondent No.1 was directed to report for duty on 12 th May, 2009. The case of the appellant is that respondent No.1 did not join duty in compliance of the order. Since the appellant did not make payment to respondent No.1 in terms of the order dated 11th May, 2009, the learned Single Judge vide impugned order dated 8th February, 2012 dismissed the writ petition. He also directed issue of show cause notice to the appellant as to why he be not proceeded against for having committed contempt of the Court. The learned Single Judge rejected the contention of the appellant that the only remedy available to respondent No.1 for enforcement of the order passed under Section 17-B of the Industrial Disputes Act was to approach the Labour Court under Section 33(c) (2) of the said Act.

2. The issue as to whether a writ petition challenging the Award of the Labour Court can be dismissed in the event of non-compliance of the order passed by the writ court under Section 17-B of the Industrial Disputes Act or not is no more res integra and stands concludes two Division Bench decisions of this Court. In LPA No.71/2012 decided on 25th July, 2012, allowing the appeal filed by the employer under identical circumstances, the Division Bench, inter alia, held as under:-

"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."

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."

3. Since the issue involved in this appeal stands concluded by the two Division Bench decision of this Court, the impugned order dated 8th February, 2012 cannot be sustained. We accordingly set aside the order dated 8th February, 2012 and remit the matter back to the learned Single Judge for deciding the writ petition, in accordance with law.

We make it clear that respondent No.1 would be entitled to avail, if he desires, the remedy which is available to him under Section 33(c) (2) of the Industrial Disputes Act, in accordance with law.

CHIEF JUSTICE

V.K. JAIN, J JANUARY 07, 2013 'kamlesh '