Read Time: 15 minutes

The Delhi High Court in a recent order issued guidelines to be followed by the SDM, Recovery Officer or the Appropriate Authority for execution of the Recovery Certificates.

The directions were passed by a Single Judge bench of Justice JR Midha on a plea by the petitioner Santosh Kumar Jha seeking implementation of the award dated 16th May, 2012 passed by the Industrial Tribunal whereby the petitioner was awarded reinstatement with back wages.

The Court noted that the Recovery Officers were not holding proceedings in open Court, daily cause lists were not being displayed outside the Court room and the orders passed were not released on the website of the Court and accordingly on 08th December, 2016, constituted a Committee to formulate the procedure for the proceedings before the Recovery Officer.

On the basis of the report submitted by the Committee, the Court from time to time issued certain guidelines based on the Judgment dated December 6, 2019  in case of M/s Bhandari Engineers & Builders Pvt Ltd vs M/s Maharia Raj Joint Venture, 266 (2020) DLT 106 which was subsequently modified vide judgment dated June 26, 2021.

The Court noted that in view of the matter, the earlier guidelines issued by the Court warrant further modifications.

In view of the same, the Court has passed the following guidelines for SDM/Recovery Officer/Appropriate Authority for following procedure for execution of the Recovery Certificates:-

1. The execution of Recovery Certificate deserves special attention considering that any delay in execution proceedings would frustrate the winning party from reaping the benefits of the award/order in their favour on account of inordinate delay.
2. Upon receipt of the Recovery Certificate, the SDM/Recovery Officer/Appropriate Authority shall list the matter in open Court within one week of the receipt of the Recovery Certificate.
3.  On the first date of hearing, the SDM/Recovery Officer/Appropriate Authority shall issue notice to the respondent and direct the respondent to deposit the due amount within thirty days of the receipt of the notice with a further direction that if the amount is not deposited, the respondent shall file an affidavit of his assets on the date of cause of action, date of the award as well as on the date of the swearing of the affidavit in Form 16A of Appendix E of the Code of Civil Procedure within 30 days of the receipt of the notice.
4.  The SDM/ Recovery Officer/Appropriate Authority shall also direct the respondent that if the amount is not deposited within 30 days, the respondent shall file additional affidavit in terms of the formats of Annexure A1 / Annexure B1 attached to the judgment of Bhandari Engineers–II (supra) within thirty days of the receipt of notice.
5. If the respondent is an individual, the additional affidavit of his assets and income shall be in the format of Annexure A1 attached to the judgment of Bhandari Engineers–II (supra).
6.  If the respondent is a proprietor of a proprietorship firm/partner of a partnership firm/member of an HUF/Director/Promoter of a company/Managing Trustee of a Trust, the additional affidavit in respect of the assets and income of the firm/HUF /Company/Trust, as the case may be, shall be in the format of Annexure B1 attached to the judgment of Bhandari Engineers – II (supra)
7. If the respondent is Central Government/State Government/ Municipal Corporation/PSU/State/Central Government Entity such as DJB/DDA etc., the direction to file the affidavit/ additional affidavit is not necessary in the first instance. In such cases, the SDM/ Recovery Officer/ Appropriate Authority shall direct the respondent to disclose the particulars of its bank account(s) in which there is sufficient amount to satisfy the amount under the Recovery Certificate. Upon disclosure of the bank account(s), the SDM/Recovery Officer/ Appropriate Authority shall attach the bank account to recover the due amount. However, if the amount in the bank account(s) is not sufficient to satisfy the award, the SDM/ Recovery Officer/ Appropriate Authority shall direct the respondent to file the affidavit of assets in Form 16A, Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure. The additional affidavit in formats of Annexure A-1/B-1 is not necessary in such cases.
8.  The SDM/Recovery Officer/Appropriate Authority shall issue the notice to the respondent in Format – I. Where the respondent is Central Government/State Government/Municipal Corporation/PSU or State/Central Government Entity such as DJB/DDA etc., the notice shall be issued in Format – II
9. In pending execution cases, if the respondent has not already filed the affidavit of assets and income, the SDM/Recovery Officer/ Appropriate Authority shall direct the respondent to file the affidavits of his assets and income in terms of this judgment within 30 days of the receipt of the notice. In case the respondent is Central Government/State Government/Municipal Corporation/PSU or State/Central Government Entity such as DJB/DDA etc., the concerned respondent entity be directed to disclose the particulars of its bank account(s) in which there is sufficient amount to satisfy the Recovery Certificate. These directions be issued to the respondent in all pending cases within four weeks.
10.  In the event of failure of the respondent to deposit the amount due under the Recovery Certificate, the SDM/Recovery Officer/ Appropriate Authority shall recover the amount by attachment of the assets of the respondent.
11.   Sections 51(b), 60 to 64 and Order XXI Rules 41 to 57 of the Code of Civil Procedure contain the provisions for attachment of properties in execution. Before attaching a property, the SDM/Recovery Officer/ Appropriate Authority shall ensure that the property does not fall in the list of properties which are exempted from attachment/sale under the proviso to Section 60(1) of the Code of Civil Procedure. The SDM/Recovery Officer/Appropriate Authority shall ensure the compliance of Sections 60 to 64 and Order XXI Rules 41 to 57 of the Code of Civil Procedure with respect to the attachment of properties.
12.   Upon the aforesaid affidavit being filed, the SDM/Recovery Officer/Appropriate Authority may examine the respondent and/or conduct an inquiry to examine whether the respondent has truly disclosed his assets and income in the affidavit.
13.  With respect to the power to detain the respondent, the SDM/Recovery Officer/Appropriate Authority shall follow the principles of natural justice by affording a reasonable opportunity to the respondent before passing the detention order.
14.  All proceedings before the SDM/Recovery Officer/Appropriate Authority shall be held in open Court.
15. The daily cause list of the cases shall be displayed outside the Court Room as well as on the website.
16. The orders passed by the SDM/Recovery Officer/Appropriate Authority shall be released on the website of the respective SDM/E-Courts portal within one week.
17. The SDM/Recovery Officer/Appropriate Authority shall follow this procedure in respect of the proceedings under Industrial Disputes Act, Employee’s Compensation Act, Motor Vehicles Act as well as other statutes which empower the SDM/Recovery Officer/Appropriate Authority to execute the Recover Certificate.
18.  These guidelines shall apply to all pending cases as well as new cases.

These guidelines be implemented with effect from 02nd August, 2021. Government of NCT of Delhi has been directed to  publish these modified guidelines on its website and  circulate it to all concerned SDMs/Recovery Officers/Appropriate Authorities.

Case Title: Santosh Kumar Jha vs The Deputy Labour Commissioner (South) W.P.(C) 8092/2016