Mohit Electronics vs Workman Tahir Hussan

Badar Durrez Ahmed, J.—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 u/s 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. The Learned Counsel for the appellant submitted that non-compliance of an order passed u/s 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 u/s 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.

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.

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:-

One of us (Rajiv Sahai Endlaw, J.) in Government of NCT of Delhi Vs. Sh. D.S. Bawa and Another had the occasion to consider whether a writ petition can be dismissed for the reason of non compliance of the order u/s 17B of the Act. Notice was taken of Hindustan Zinc Ltd. Vs. Industrial Tribunal and Another, deprecating the practice of disposing of writ petitions for the reason of non-compliance with the order u/s 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 and Another, 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 u/s 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 and Another , the question wherein also was whether the remedy of contempt was available against non compliance of an order u/s 17B of the Act. Notice therein was taken of Uma Shankar Vs. Hindustan Carbide Pvt. Ltd., where this Court had dismissed the contempt petition for the violation of order u/s 17B of the Act and to T. Sudhakar Prasad Vs. Govt. of A.P. and Others, and of R.N. Dey and Others Vs. Bhagyabati Pramanik and Others, 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, 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 Bimal Chandra Sen Vs. Kamla Mathur and Another, , Shri Puneet Parkash Vs. Shri Jai Parkash and Others 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 u/s 17B is enforceable u/s 33C(1) of the Act, contempt would not lie.

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 u/s 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 u/s 33C(2) of the said Act which he may pursue, in accordance with law. The appeal stands allowed as above. There shall be no order as to costs.