Sanjay Sugandhit Dhoop vs Rajinder Singh and Another

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 u/s 17B 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 12th 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 u/s 17B of the Industrial Disputes Act was to approach the Labour Court u/s 33(c)(2) of the said Act. 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 u/s 17B 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:-

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 and Others, 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 and Others, 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. 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 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.

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 u/s 33(c)(2) of the Industrial Disputes Act, in accordance with law.