1704CPL2.13-Judgment 1/13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CONTEMPT APPEAL NO. 2 OF 2013
IN
CONTEMPT PETITION NO. 120 OF 2006
IN
CONTEMPT PETITION NO. 212 OF 2005
IN
WRIT PETITION NO. 3246 OF 2002
APPELLANT :- Shivaji Education Society, through its
Secretary, Shri Bonde, Amravati.
...VERSUS...
RESPONDENTS :- 1) State of Maharashtra, through Secretary,
Vocational Education and Training
Department, Mantralaya, Mumbai-32.
2) Deputy Director of Vocational Education and
Training Department, Amravati Region,
Amravati.
3) Director of Technical Education and
Training Mumbai.
4) Archana Ramkrushna Kuche, Sambhaji
Nagar, Bhagyashree Colony, Akot, District
Akola.
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Mr.Abhay Sambre, counsel for the appellant.
Mr.Ambarish Joshi, Asstt.Govt.Pleader for the respondent Nos.1 to 3.
Mr.P.C.Madkholkar, counsel for the respondent No.4.
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CORAM : SMT. VASANTI A NAIK &
MRS.SWAPNA JOSHI
, JJ.
DATED : 17.04.2017 ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:38:27 ::: 1704CPL2.13-Judgment 2/13 O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.) By this contempt appeal, the appellant challenges the order of the learned Single Judge in Contempt Petition No.120 of 2006.
2. Few facts giving rise to the contempt appeal are stated thus :-
Respondent No.4-Archana Kuche was appointed as an instructor with Shivaji Education Society on 05/05/1999. The services of Archana Kuche were terminated on 31/10/2001 as the education authorities had refused to grant approval to her appointment. By an order dated 27/11/2001, the management stayed the order of termination. Archana Kuche filed Writ Petition No.3246 of 2002 challenging the order of her termination. The writ petition filed by Archana came up for admission and the Division Bench of this court, by an order dated 09/09/2002, issued Rule in the writ petition. The court however observed that the question of granting interim stay did not arise at that stage as the management had itself stayed the order of termination of Archana by the order dated 27/11/2001. This court directed that it was the responsibility of the management to look into the question of payment of salary to Archana and to ensure that she is also paid the salary as in the case of other employees. It is necessary to mention at this juncture that two other employees that were terminated ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:38:27 ::: 1704CPL2.13-Judgment 3/13 at the relevant time namely Jyoti Thakre and Atul Wankhede had also filed separate writ petitions challenging their termination, bearing Writ Petition Nos.3770 of 2001 and 3787 of 2001 respectively. In those writ petitions also, while issuing Rule, this court observed that the question of granting stay would not arise, as the order of termination of Jyoti Thakre and Atul Wankhede was stayed by the management by the order dated 27/11/2001. During the pendency of the writ petition filed by Archana, the management defaulted in making the payment of salary. Hence, contempt petition bearing No.212 of 2005 was filed by Archana for taking appropriate action against the appellant herein. In the said contempt petition a statement was made by the appellant, who was in the management, that the salary of Archana would be paid and the contempt petition was disposed of on the basis of the said statement. After the contempt petition was disposed of by an order dated 24/04/2006, the management lifted the stay to the order of termination of Archana dated 27/11/2001. With the lifting of the order of the stay to the order of termination, the termination of Archana dated 27/11/2001 took effect. Archana then filed Contempt Petition No.120 of 2006 and made the following prayer therein -
"(A) That this Hon'ble Court be pleased to take cognizance of contempt committed by respondent No.3 (appellant herein) dated 24/04/2006 terminating the ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:38:27 ::: 1704CPL2.13-Judgment 4/13 services of petitioner by serving three months notice in gross violation of the order passed in Writ Petition Nos.3770 of 2001 and 3787 of 2001, which are still pending and take appropriate action in accordance with law against the respondent No.3 (present appellant)."
The said contempt petition came up before the learned Single Judge and the learned Single Judge, by the order dated 29/07/2013, held that the action on the part of the present appellant certainly amounts to willful interference in the administration of justice. After holding that the appellant herein had purposefully circumvented the order passed in the case of Archana dated 09/09/2002, it was observed that the appellant was required to be heard personally on the aspect of penalty. The said order of the learned Single Judge holding the appellant guilty of contempt is challenged by the appellant in this contempt appeal.
3. Shri Sambre, the learned counsel for the respondent No.4, submitted that the learned Single Judge was not justified in holding that the appellant had committed a contempt of the order dated 09/09/2002 in Writ Petition No.3246 of 2002, filed by Archana. It is submitted that the prayer clause in the contempt petition, would clearly show that by filing the contempt petition, Archana has sought action ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:38:27 ::: 1704CPL2.13-Judgment 5/13 against the management for gross violation of the orders passed in Writ Petition Nos.3770 of 2001 and 3787 of 2001. It is submitted that Archana, the petitioner in the contempt petition had filed Writ Petition No.3246 of 2002 and as stated herein above Jyoti Thakre and Atul Wankhede had filed Writ Petition Nos.3770 of 2001 and 3787 of 2001 respectively of which a mention is made in the prayer clause in the contempt petition. It is submitted that on the basis of the orders passed in the writ petitions filed by Jyoti Thakre and Atul Wankhede, the appellant could not have been punished. It is further stated that neither is a reference made in the prayer clause in the contempt petition to Writ Petition No.3246 of 2002 filed by Archana nor are the orders passed in Writ Petition No.3246 of 2002 mentioned in the contempt petition or are annexed thereto, to point out that the said orders are violated. It is stated that even assuming that in the contempt petition Archana had sought action against the appellant for willful disobedience of the order passed in her writ petition, bearing Writ Petition No.3246 of 2002, still the learned Single Judge could not have held that the appellant had willfully flouted or disobeyed the directions of this court in the said writ petition. It is stated that while issuing Rule in the writ petition filed by Archana, this court observed that at that stage there was no question of granting interim relief as the management had itself stayed the order of termination of Archana dated 27/11/2002. It is stated that as soon as ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:38:27 ::: 1704CPL2.13-Judgment 6/13 the management lifted the stay to the order of termination dated 27/11/2001, Archana could have availed the appropriate remedy, but she could not have filed the contempt petition for an action against the appellant for willful disobedience of the directions in the said order. It is stated that this court had not stayed the order of termination of Archana while issuing Rule and had observed that there was no question of staying the order of termination at that stage. It is stated that the learned Single Judge committed an error in holding that the appellant had willfully and purposefully tried to circumvent the effect of the order in the writ petition filed by Archana.
4. Shri Madkholkar, the learned counsel for respondent No.4- Archana, supported the order. The learned counsel objected to the maintainability of the contempt appeal by relying on the provisions of section 19 of the Contempt of Courts Act, 1971. It is stated that under section 19 of the Act, an appeal shall lie as of a right from any 'order' or 'decision' of the learned Single Judge of the High Court to the bench of not less than two judges of the High Court. It is stated that the order passed by the learned Single Judge in this case is not a decision, as no penalty is imposed on the appellant herein. It is submitted that in the circumstances of the case, the learned Single Judge was justified in holding that the action on the part of the appellant herein was ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:38:27 ::: 1704CPL2.13-Judgment 7/13 purposeful and he had deliberately made efforts to circumvent the order passed by the High Court on 09/09/2002 in the writ petition filed by Archana bearing Writ Petition No.3246 of 2002. The learned counsel relied on the judgment of the Hon'ble Supreme Court, reported (2000) 4 SCC 400 (R. N. Dey and others v. Bhagyabati Pramanik and others) and AIR 2006 SC 2190 (Midnapore Peoples' Co-op. Bank Ltd. & ors. v. Chunilal Nanda & Ors.) to substantiate his submission that the contempt appeal is not maintainable.
5. In reply, the learned counsel for the appellant relied on the judgment of the Hon'ble Supreme Court reported in (2000) 4 SCC 400, on which the counsel for the appellant had placed reliance and specially paragraph-10 thereof as also the judgment of the Hon'ble Supreme Court, reported in 2006 (1) Mh.L.J. 705 (Modi Telefibres Ltd. and others v. Sujit Kumar Choudhary and others) to substantiate his submission that an order holding a party to have committed contempt cannot be treated as an interlocutory order and the right of appeal cannot be denied to such a party merely because the learned Single Judge has adjourned the contempt proceedings to enable the alleged contemnor to either purge the contempt or be heard on the quantum of punishment.
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1704CPL2.13-Judgment 8/13
6. On hearing the learned counsel for the parties, it appears that the objection raised on behalf of respondent No.4-Archana to the maintainability of the contempt appeal is liable to be overruled, in view of the judgment of the Hon'ble Supreme Court in the case of Modi Telefibres Ltd. (supra), as in that case also, just like in the present case, the learned Single Judge had recorded a finding that the employer in that case had committed contempt by not paying full dues to the workman and the matter was adjourned by the learned Single Judge only to grant an opportunity to the alleged contemnor to either purge the contempt or to make the submissions on the quantum of punishment. The Hon'ble Supreme Court while considering a similar situation like the one involved in this case observed that the order of the learned Single Judge could not have been treated to be an interlocutory order and the right of appeal could not have been denied to the employer in that case, merely because the learned Single Judge had adjourned the contempt proceedings to enable the alleged contemnor to purge the contempt or else for deciding the quantum of punishment. By making a reference to section 19 of the provisions of the Contempt of Courts Act, the Hon'ble Supreme Court held that the Division Bench of the High Court in that case was clearly wrong in refusing the right of appeal to the employer therein. Since the Hon'ble Supreme Court has held in almost identical set of facts that the Division Bench of the High ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:38:27 ::: 1704CPL2.13-Judgment 9/13 Court had clearly erred in refusing the right of appeal to the appellant therein, it would be necessary to reject the submission made on behalf of respondent No.4-Archana to the maintainability of the contempt appeal in view of the judgment in the case of Modi Telefibres Ltd. (supra). We find on a perusal of the order of the learned Single Judge that the learned Single Judge has clearly recorded a finding that the appellant herein has purposely circumvented the effect of the order dated 09/09/2002 in the writ petition filed by Archana bearing Writ Petition No.3246 of 2002 by withdrawing the stay to the order of termination. The learned Single Judge had directed the appellant to remain present in the court on the next date of hearing to grant a personal hearing to the appellant on the penalty that could be imposed. The case in hand is on a stronger footing than the case of the employer filing the contempt appeal in the case of Modi Telefibres Ltd. as in that case the matter was adjourned for either purging the contempt or on the issue of punishment.
7. Now turning to the order passed by the learned Single Judge in the contempt petition, it needs to be mentioned, as rightly canvassed on behalf of the appellant that in the contempt petition filed by Archana, Archana has not made a reference to the order passed in her writ petition at all. The prayer clause makes a reference to the ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:38:27 ::: 1704CPL2.13-Judgment 10/13 disobedience of the order passed in Writ Petition Nos.3770 of 2001 and 3787 of 2001 filed by some other employees, namely Jyoti Thakre and Atul Wankhede respectively. Petitioner-Archana has not mentioned the orders passed in her writ petition bearing Writ Petition No.3246 of 2002 and has also not stated that the orders passed in her writ petition have been violated. How could the appellant be punished or held to be guilty of disobedience of the orders passed in the writ petitions filed by Jyoti Thakre and Atul Wankhede in a contempt petition filed by Archana. Archana should have specifically come up with a case in the contempt petition that a specific order passed in her writ petition, is deliberately violated or disobeyed by the appellant. There is no amendment to the contempt petition filed by petitioner-Archana. At no point of time, Archana has brought it to the notice of the court vide any amendment to the contempt petition that the particular order passed in her writ petition, bearing Writ Petition No.3246 of 2002 is violated deliberately. However, it appears that the learned Single Judge must have called for the record in Writ Petition No.3246 of 2002 and after perusal thereof has come to the conclusion that the order dated 09/09/2002, passed in the writ petition filed by Archana is purposefully sought to be circumvented by the appellant herein by withdrawing the order of stay to the order of termination of Archana.
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1704CPL2.13-Judgment 11/13
8. Even assuming that Archana had filed a proper contempt petition by mentioning the order passed in her writ petition and had sought action against the appellant, we find that the appellant could not have been held to be guilty of contempt as in Archana's writ petition this court had issued Rule and observed that the question of granting stay to the termination of Archana does not arise, in view of the stay granted by the management itself, to the order of termination of Archana. Since the management had stayed the order of termination of Archana on its own, the court directed the management to pay the salary to Archana as was paid to the other employees. However, during the pendency of the writ petition, the stay granted by the management to the order of termination of Archana was lifted by the management by the order dated 24/04/2006, thereby giving effect to the order of termination of Archana. It was necessary for Archana to immediately file an appropriate application in Writ Petition No.3246 of 2002 pointing out to the court that the cause for seeking stay had then arisen as though the management had granted stay to her termination, it has lifted the order of stay. The court could have passed appropriate orders on the application of Archana, had it been made. However, without taking any appropriate steps in the matter, Archana filed the contempt petition before the learned Single Judge seeking action against the appellant on the basis of the orders passed in the writ petition filed by ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:38:27 ::: 1704CPL2.13-Judgment 12/13 Jyoti Thakre and Atul Wankhede. The learned Single Judge committed a serious error in holding that the appellant had committed the contempt of court by circumventing the order dated 09/09/2002 in Writ Petition No.3246 of 2002, filed by Archana. Firstly, that was not the prayer made by Archana in the contempt petition. Secondly, assuming that it was made, it cannot be said that the appellant had deliberately flouted the order of the court, as there was no order in the writ petition filed by Archana, staying the order of termination of Archana or restraining the management from lifting the order of stay that was granted by the management to the termination of Archana. In the circumstances of the case, the learned Single Judge was not justified in holding that the management ought to have taken the court into confidence and could have informed the court that it was desirous of lifting the stay to the order of termination of Archana. What is the ideal situation or would have been an ideal situation is not a matter that is required to be looked into while considering the contempt petition. All that the court is required to consider is whether a specific order passed by a court is willfully violated or disobeyed by the alleged contemnor. In the instant case, there was no specific order in the case of Archana. The order of termination was not stayed and there was also no order restraining the management from lifting the stay to the order of termination of Archana, that it had granted on its own. In the aforesaid ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:38:27 ::: 1704CPL2.13-Judgment 13/13 set of facts, the learned Single Judge was not justified in holding that the appellant herein had interfered with the administration of justice by withdrawing the stay to the termination order of Archana. In our considered view, the learned Single Judge ought to have dismissed the contempt petition filed by Archana.
9. Hence, for the reasons aforesaid, the contempt appeal is allowed. The order of the learned Single Judge dated 29/07/2013 in Contempt Petition No.120 of 2006 is hereby set aside. The contempt petition filed by Archana stands dismissed. No costs.
JUDGE JUDGE
KHUNTE
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