JUDGMENT

Rajiv Sahai Endlaw, J.

1. Contempt is averred of the order dated 11th November, 2009 of this Court on an application of the petitioner / relator under Section 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.

2. 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 under Section 17B of the ID Act. Reliance in the said order was placed on another judgment of this Court in Uma Shankar v. M/s Hindustan Carbide Pvt. Ltd. 111(2004) DLT 270 where also a contempt petition filed for the alleged violation of order under Section 17B was dismissed. The counsel for the petitioner had then sought time to consider the matter.

3. 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 under Section 17B of the Act. He has argued that in Uma Shankar the employer was in violation not only of the order under Section 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 under Section 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 under Section 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 under Section 33C of the ID Act. It is urged that in the present case the writ petition in which the order under Section 17B of the ID Act was made is still pending and thus what has been laid down in Uma Shankar, would not apply.

4. Before proceeding to consider the aforesaid argument, I may notice that I have had an occasion in Government of NCT of Delhi Vs Shri D.S. Baw MANU/DE/1423/2010 to consider whether non-compliance of order under Section 17B necessarily results in dismissal of the writ petition challenging the award of the Labour Court/Industrial Tribunal. Relying on Hindustan Zinc Ltd. v. Industrial Tribunal (2001) 10 SCC 211 it was held that a writ petition cannot be disposed of for the reason of non compliance with the order under Section 17B, without dealing with the merits.

5. 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 under Section 17B is not contumacious. Undoubtedly, in Uma Shankar the writ petition in which the order under Section 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 v. Govt. of A.P. JT 2001 (1) SC 204 and to R.N. Dey v. 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. This Court also relied upon Kishorbhai Dahyabhai Solanki v. Nagjibhai Muljibhai Patel (2002) II