CONT.CAS(C) 173/2011Page 1 of 11

*IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of decision: 1^st April, 2011

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CONT.CAS(C)173/2011

VIMAL KUMAR

..... Petitioner/Relator

Through:

Mr. R.K. Saini with Mr. Sitab Ali

Choudhary and Ms. Aradhna Mittal,

Advocates

Versus

RAMESH NEGI & ANR.

..... Respondents/Alleged Contemnor

Through:

None.

CORAM :-

HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.

Whether reporters of Local papers may

be allowed to see the judgment?

Yes

2.

To be referred to the reporter or not?

Yes

3.

Whether the judgment should be reported

Yes

in the Digest?

RAJIV SAHAI ENDLAW, J.

1.

Contempt is averred of the order dated 11^th 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

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CONT.CAS(C) 173/2011Page 2 of 11

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 10^th March, 2011

when attention of the counsel for the petitioner/relator was invited to an

order dated 17^th 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

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CONT.CAS(C) 173/2011Page 3 of 11

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.

Bawa MANU/DE/1423/2010 to consider whether non-compliance of

order under Section 17B necessarily results in dismissal of the writ

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CONT.CAS(C) 173/2011Page 4 of 11

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 merit