Vimal Kumar vs Ramesh Negi and Another

Rajiv Sahai Endlaw, J.—Contempt is averred of the order dated 11th November, 2009 of this Court on an application of the Petitioner / relator u/s 17B of the Industrial Disputes Act, 1947 directing the alleged contemnor to pay to the Petitioner / relator from the date of the award and till the decision of the writ petition, last drawn wages or minimum wages whichever is higher and on the other terms and conditions stipulated in the order. It is the case of the Petitioner that the alleged contemnors are in violation of the said order.

The petition came up first before this Court on 10th March, 2011 when attention of the counsel for the Petitioner/relator was invited to an order dated 17th January, 2011 of this Bench in Cont. Cas (C) 26/2011 titled Nishikesh Tyagi v. Sh. P.R. Santhanam holding a contempt petition to be not maintainable with respect to an order u/s 17B of the ID Act. Reliance in the said order was placed on another judgment of this Court in Uma Shankar Vs. Hindustan Carbide Pvt. Ltd., where also a contempt petition filed for the alleged violation of order u/s 17B was dismissed. The counsel for the Petitioner had then sought time to consider the matter.

The counsel for the Petitioner has today urged that the judgment of this Court in Uma Shankar (supra) cannot be read as laying down that a contempt petition would not be maintainable for violation of an order u/s 17B of the Act. He has argued that in Uma Shankar the employer was in violation not only of the order u/s 17B of the ID Act but also of the terms and conditions on which the stay of the award of the Labour Court/Industrial Tribunal challenged in that case was granted; that owing to the said violation, the writ petition stood dismissed; that it was thereafter that the contempt petition for non compliance of the order u/s 17B was filed. It is argued that it was in these circumstances, since the writ petition already stood dismissed and further since owing to the violation/breach of the order u/s 17B the Petitioner employer in that case had already been punished by the dismissal of its writ petition, that this Court held that the contempt petition would not be maintainable and that the remedy of the workman is u/s 33C of the ID Act. It is urged that in the present case the writ petition in which the order u/s 17B of the ID Act was made is still pending and thus what has been laid down in Uma Shankar, would not apply.

Before proceeding to consider the aforesaid argument, I may notice that I have had an occasion in Government of NCT of Delhi Vs. Sh. D.S. Bawa and Another to consider whether non-compliance of order u/s 17B necessarily results in dismissal of the writ petition challenging the award of the Labour Court/Industrial Tribunal. Relying on Hindustan Zinc Ltd. Vs. Industrial Tribunal and Another, it was held that a writ petition cannot be disposed of for the reason of non compliance with the order u/s 17B, without dealing with the merits.

I am unable to agree with the counsel for the Petitioner that the judgment in Uma Shankar is not a precedent for the proposition that non compliance of order u/s 17B is not contumacious. Undoubtedly, in Uma Shankar the writ petition in which the order u/s 17B was made stood dismissed by the time the contempt petition was filed. However, the contempt petition was held to be not maintainable not for the reason of the writ petition having stood dismissed. This Court referred to T. Sudhakar Prasad Vs. Govt. of A.P. and Others, and to 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. This Court also relied upon Kishorbhai Dahyabhai Solanki Vs. Nagjibhai Muljibhai Patel, and on Abdul Razack Sahib Vs. Mrs. Azizunnissa Begum and Others, to hold 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. It is on the basis of the said principles that this Court held that the contempt petition did not lie. Uma Shankar is thus a precedent on all fours against the maintainability of this petition.

I have in Nishikesh Tyagi (supra) given yet another reason for holding contempt to be not maintainable. Reliance was 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 v. Haldiram Bhujiawala 146 (2008) DLT 100 to hold that once a mechanism for enforcement of the order is provided, contempt would not lie.

The counsel for the Petitioner/relator has not been able to controvert that an order u/s 17B would be enforceable u/s 33C(1) before the Labour Court. Thus if the employer does not comply with 17B order, the employee/workman can always approach the Labour Court/Industrial Tribunal for enforcement thereof.

Even though Section 33C(1), as per its language is applicable where any money is due to the workman from an employer under a settlement or an award or under the provisions of Chapter VA or Chapter VB of the ID Act and even though Section 17B does not fall in either of the said Chapters, but the Supreme Court in The Central Bank of India Ltd. Vs. P.S. Rajagopalan etc., held that Section 33C(1) provides for a kind of execution proceedings and it contemplates that if money is due to a workman, the workman is not compelled to take recourse to the ordinary course of execution in the Civil Court but may adopt a summary procedure prescribed by Section 33C(1) and that all that Section 33C(1) postulates is that a specific amount is due to the workman and the same has not been paid to him and if the appropriate Government is satisfied that the money is so due, then it is required to issue a certificate for the said amount to the Collector and that leads to the recovery of the said amount in the same manner as an arrear of land revenue.

It was further held that if though Section 33C(1) contains words of limitation and Section 33C(2) is free of such limitations but Section 33C(4) further provides that the amounts found due u/s 33C(2) may be recovered in the manner provided for in Section 33C(1). It would thus be seen that Section 33C(4) widens the scope of Section 33C(1).

In my opinion, the amounts payable u/s 17B would also fall in amounts due to an employer "under an award" inasmuch as the same represent the amount payable statutorily during the time the challenge to the award is pending before the High Court.

Mention must also be made of the recent dicta in Kaivalyadham Employees Association Vs. Kaivalyadham S.M.Y.M. Samity, where the Supreme Court though held that the High Court could not direct an application u/s 17B to be adjudicated by directing parties to lead evidence before the Labour Court u/s 33C(2), nevertheless held that in certain cases the provisions of Section 33C(2) may have to be resorted to in respect of an order u/s 17B but not as a matter of course.

I may also notice that this Court has held the remedy of contempt to be not available for breach of interim orders directing payment, in proceedings other than under the ID Act. Reference in this context may be made to Ajit Arjani Vs. Roma Arjani, laying down that contempt petition does not lie for violation of an order directing payment of interim maintenance and the remedy for such violation is by execution of the said order. Similarly in Shri Puneet Parkash Vs. Shri Jai Parkash and Others contempt was held to not lie for non compliance of a consent decree. It was held that the remedy was by way of execution. The common thread running through the said judgments is that contempt proceeding is not a substitute for execution. Though the Supreme Court in Rama Narang Vs. Ramesh Narang and Another, observed that merely because an order or decree is executable, would not take away the Court''s jurisdiction to deal with a matter under the Contempt of Courts Act, 1971 but provided the Court is satisfied that the violation of order or decree is such, that if proved, it would warrant punishment u/s 13 of Contempt of Courts Act on the ground that the contempt substantially interferes with the due course of justice; non compliance of Section 17B order cannot be said to be interfering with the due course of justice also for the reason hereinafter stated.

The occasion for passing an order u/s 17B arises only if the employer prefers a proceeding against the award of the Labour Court/Industrial Tribunal of reinstatement of the workman and if the workman has not been employed in any establishment during the pendency of such proceeding. The question of the workman being not employed in any establishment during the pendency of such proceeding would arise only if the High Court or the Supreme Court while entertaining challenge to the award, stays the operation thereof. If it is found that the employer has on the one hand obtained an order of stay of the operation of the award of reinstatement and is on the other hand not complying with the order u/s 17B, the appropriate remedy would be to seek vacation of the said order of stay and whereupon the employee would become entitled to execute the award of reinstatement before the Labour Court. No case of contempt would still be made out.

Some of the other counsels for employee / workman in other similar matters have argued that unless the jurisdiction of contempt is exercised in such a situation, the workman would be compelled to file applications u/s 33C month after month. It is also contended that the procedure before the Labour Court / Industrial Tribunal is elaborate.

The Labour Courts/ Industrial Tribunals were constituted to provide a speedy remedy to the workmen who are found to be constituting a class amongst themselves entitled to speedy adjudication of their claims. Though finding merit in the contentions that the lofty aspiration with which the Labour Courts/Industrial Tribunals were constituted has not been fulfilled and it is often found that the disposal of the disputes by the Labour Court/Industrial Tribunal is taking longer than adjudication by the Civil Courts, however, the same cannot digress the view of this Court on the logic aforesaid. It is for the Industrial Tribunal/Labour Court to devise ways and methods for enforcement of orders u/s 17B. If the Labour Court/Industrial Tribunal finds that the employer is harassing the workman in payment u/s 17B, the Labour Court/Industrial Tribunal can always devise ways and means for ensuring such payment regularly and month by month. Moreover if it is shown to this Court also that the employer has by his/its conduct created a situation whereby neither the award of reinstatement is being enforced/implemented nor is the order u/s 17B abided by, this Court can always invoke its jurisdiction under the Contempt of Courts Act, 1971 to punish the guilty.

Thus looked at from any perspective, the petition cannot be held to be maintainable and is dismissed with liberty to the Petitioner / relator to avail of the alternative/appropriate remedy. No order as to costs.