R.K. Tewari vs C/M Shri Amar Chand Maheshwari ...
2015 Latest Caselaw 2140 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 36
 

 
Case :- CONTEMPT APPEAL DEFECTIVE No. - 2 of 2009
 

 
Appellant :- R.K. Tewari
 
Respondent :- C/M Shri Amar Chand Maheshwari Inter College & Another
 
Counsel for Appellant :- Siddharth Khare,Ashok Khare
 
Counsel for Respondent :- U.K. Saxena
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Pramod Kumar Srivastava,J.

This Appeal, under Section 19 of the Contempt of Courts Act, has been preferred questioning the correctness of the order of conviction and punishment dated 18.12.2009, the certified copy whereof has not been filed on record as a result whereof this continues to be a defective appeal till date. An interim order was granted on 21.12.2009 staying the sentence of punishment of one month simple imprisonment and deposit of Rs.2,000/- fine which interim order was extended from time to time and Affidavits were exchanged when final orders were passed on 22.11.2010 to the following effect:-

"Hon'ble R.K. Agrawal,J.

Hon'ble Kashi Nath Pandey,J.

We have heard Sri Ashok Khare learned counsel for the appellant and Sri U.K.Saxena, learned counsel appearing for the respondents.

Pursuant to the order of this Court dated 26.10.2010 the appellant Sri R.K.Tewari, was directed to appear in person before the Court. He is present today. His personal appearance is exempted.

Judgment reserved.

Order Date :- 22.11.2010"

Thereafter, the judgment does not appear to have been delivered and that is how the matter has now been listed before this Bench without curing the defect of the absence of certified copy of the judgment. A counter-affidavit has been filed by Sri U.K. Saxena, learned Counsel for the opposite parties where the facts stated in the Affidavit in support of Contempt Petition have been disputed and it has been reiterated that the appellant did commit contempt of the orders of this Court as entailed in the impugned decision and not only this, he was also a habitual contemner as he has been summoned in a contempt matter by the Apex Court in Contempt Application No.319 of 2009 arising out of Civil Appeal No.3433 of 2001, Ranbir Singh Vs. R.K. Tiwari, District Inspector of Schools, and another and a copy of order of the Apex Court has been filed as Annexure No.1 to the counter-affidavit.

The appellant at the relevant point in time was working as District Inspector of Schools, Jalaun, and had the authority to exercise powers in relation to disbursement of salary of aided institutions under the Uttar Pradesh High School and Intermediate (Payment of Salary to Teachers and other Employees) Act, 1971. It may be mentioned that the District Inspector of Schools, being the drawing and disbursing Officer of the finances of a to private institution, has implied powers to recognize the elections of the Committee of Management managing such an institution and to attest the signatures of the Manager, who has to execute the work on behalf of the Institution. In the instant case, the institution is an Intermediate College and according to the opposite parties is managed by a Committee of Management as constituted under the Scheme of Administration of the College of which the opposite party No.2 was the then Manager.

The peculiarity of this case led to a litigation which according to the respondents was generated by the appellant on account of his own obstinate conduct. According to the records and the contention of the respondent - Committee, the fresh elections of Committee of Management in the year 2005 were conducted in terms of a direction issued in a Writ Petition No.52995 of 2002, Vishambhar Singh and another Vs. Joint Director of Education, Jhansi Region, Jhansi, where this Court passed an order on 25.3.2005. The Committee was constituted according to the respondents on 19.7.2005 partially with the election of the Members, who were then available and the same was submitted before the Joint Director of Education, Jhansi Region, Jhansi, who passed an order on 12.8.2005 acknowledging the said process having been partially completed with a further direction that the said process is being recognized subject to the condition that within 3 months of the said order, the complete elections of Committee of Management constituting it in terms of the Scheme of Administration, should be accomplished. Once the entire Committee of Management, is constituted, only then the Committee would be entitled to discharge its function.

According to the respondents, this was accomplished and the said partial constitution was followed by the completion of election process and final constitution of the Committee of Management in the meeting held on 18.9.2005 and the entire list of the elected office-bearers and Members was forwarded to the District Inspector of Schools, who recognized the said Committee on 22.9.2005. Since there was some difficulty in payment of salary, the financial function of disbursing payment of salary was being done under Section 5 of the 1971 Act under orders dated 26.7.2004. However, under the recognition order dated 22.9.2005, the said order of single operation was withdrawn and the Committee through it's Manager Sri Hari Shanker Sharma - the respondent herein was authorized to discharge all functions. The said order of recognition is on record.

The Committee was smoothly running it's turn of 3 years and one month which is provided for under the Scheme of Administration but the appellant - contemner, who became District Inspector of Schools, created an impediment by passing an order of single operation on 5.7.2008 thereby creating an impediment in the functioning of the respondent as Manager of the Institution in respite of the fact that his term if counted from 18.9.2005 had not yet expired. According to the respondent, the tenure of the Committee was to continue till 21.10.2008 on which date the period of 3 years and one month was to expire after the last recognition as per the Scheme of Administration.

Aggrieved by the said order of single operation that cut short the functioning of the respondent - Committee and Manager respectively, Writ Petition No.36858 of 2008 was filed before this Court challenging the aforesaid order and a learned single Judge of this Court vide judgement dated 31.7.2008 remitted the matter to the Joint Director of Education to decide the complaint within 2 weeks. The said judgement is on record. It was assailed in a Special Appeal No.955 of 2008 contending that the learned single Judge has committed an error in remitting the matter to the Joint Director of Education as the order of the District Inspector of Schools was erroneous. The said Special Appeal was allowed and the order dated 5.7.2008 passed by the District Inspector of Schools imposing single operation of accounts was quashed. Not only this, the Division Bench clearly observed that the order dated 5.7.2008 passed by the appellant was not in conformity with Section 5 of the 1971 Act and further held that on the facts of the case, the recognition granted to the respondent - Committee was still valid and it was not open to the District Inspector of Schools to have observed that there was no valid Committee of Management. The consequence of the aforesaid judgment of the Division Bench dated 14.8.2008 was that the respondent - Committee through its Manager that had been recognized on 22.9.2005 by the District Inspector of Schools was entitled to continue and discharge it's duties.

From a conspectus of the aforesaid facts, it is clear that the said Committee was entitled to function and continue till the end of it's term.

According to the respondents, another legal impediment was created by appointing a Prabandh Sanchalak (Authorized Controller) superseding the Committee of Management which came to be challenged by the Committee of Management in Writ Petition No.48782 of 2008 and vide order dated 19.9.2008, the operation of the orders, whereby the Committee had been superseded and a Prabandh Sanchalak has been appointed, was stayed.

The Joint Director of Education informed the District Inspector of Schools that since the appointment of Prabandh Sanchalak (Authorized Controller) has been stayed, appropriate steps be taken for contesting the matter before the High Court.

The appellant, who was the then District Inspector of Schools, instead of obeying the said stay order which was in consonance with the earlier Division Bench judgment dated 14.8.2008, proceeded to pass an order of single operation on 4/7.10.2008 on the ground that this was necessary to ensure payment of salary to the teachers. The said order was again challenged by the Committee and the operation of the said order was stayed on 6.11.2008 in Writ Petition No.57178 of 2008. As a consequence of this interim order by the High Court, the appellant withdrew his order of single operation on 18.11.2008 but did not allow the respondent - Committee through the respondent No.2 as Manager to function.

The Committee of Management filed the Contempt Petition on 16.10.2008 alleging disobedience of the Division Bench judgment dated 14.8.2008 passed in Special Appeal No.955 of 2008 and the stay order passed in Writ Petition No.48782 of 2008 dated 19.9.2008.

The appellant was summoned and after considering his explanation and reply, the Court came to the conclusion that the appellant deliberately deprived the respondent - Committee from managing the affairs of the Institution in clear defiance of orders dated 14.8.2008 and 19.9.2008. It was also noticed that there was an allegation against the appellant of his openly declaring defiance of the order of the High Court to which no proper reply had been given. The Court, therefore, came to the conclusion that the act of the appellant in passing the orders was not bona fide and was not by mistake and hence the defiance shown by him constituted a wilful and deliberate disobedience and then proceeded to punish him with a sentence of one month simple imprisonment and Rs.2,000/- as fine with a further direction that in the event of non-deposit of fine, an imprisonment of 15 days shall be undergone by the appellant.

It is in this background that the present appeal was filed and the interim order was passed where after the judgment was reserved by a Division Bench but was not pronounced.

Sri Ashok Khare urged that the appellant had not wilfully and deliberately disobeyed any order and he had passed the orders on the legal foundation that there was no valid Committee of Management functioning and, as such, in order to ensure that the teachers and employees do not suffer on account of non-payment of salary that the order of single operation was passed. He submits that there was no intention to create any impediment and after the stay order was passed, they were complied with and the order of single operation was revoked on 18.11.2008 as indicated above. In such a situation, no charges ought to have been framed and the contemner deserved a discharge. He further submits with the help of a supplementary-affidavit filed, to inform that ultimately Writ petition No.57178 of 2008 in which an interim order was passed on 6.11.2008 was dismissed as not pressed on 11.5.2010 and the same was the position of Writ Petition No. 48782 of 2008 where the interim order was passed on 19.9.2008 which was also dismissed as not pressed on 11.5.2010 and the interim order was vacated. The contention, therefore, is that there was no wilful and deliberate disobedience in existence and in the absence of any such material, there was no reason to punish the appellant. The observations made by the learned single Judge that the appellant had, deliberately in defiance of the order of the Court, not allowed the respondent to function, does not stand substantiated and, therefore, the charge having not been proved, the punishment order deserves to be set aside.

Having considered the submissions raised and having heard Sri U.K. Saxena, learned Counsel for the respondent, what we find from the records is that the Division Bench vide it's judgment dated 14.8.2008 clearly recognized and acknowledged the existence of the respondent - Committee of Management entitled to continue on the strength of it's recognition in the year 2005. The question as to whether there was any justification for passing an order of single operation is concerned, suffice it to say that an order of single operation is passed only if there is any impediment in the payment of salary, and any pendency of a complaint in relation to the constitution of the Committee is not a ground for imposing single operation of accounts under Section 5 of the 1971 Act. It is for this reason that the Division Bench clearly held that it was not open for the District Inspector of Schools to take a view that there is no valid Committee of Management. Once this finding had been arrived at in a final judgment to which the District Inspector of Schools was a party on 14.8.2008, then the District Inspector of Schools ought to have stayed his hands off and should not have imposed any single operation of accounts till the tenure of the Committee was surviving and was continuing. As noticed above, if the final recognition of the constitution of the Committee of Management came about on 22.9.2005 on the basis of the full constitution of the Committee of Management on 18.9.2005, then in that event the period of 3 years one month would expire on 17.10.2008 and hence the District Inspector of Schools namely the appellant herein even before the expiry of the said recognized term clearly passed an order of single operation on 4/7.10.2008 which was intended to curtail the functioning of the respondent - Committee unjustifiably and unlawfully in defiance of the order of the Division Bench dated 14.8.2008.

Not only this, the subsequent conduct of the appellant and the other educational authorities in depriving the respondent - Committee from discharging it's function in spite of the stay order dated 19.9.2008 as noticed by the learned single Judge also added to this wilful and deliberate defiance. Consequently, the appellant was clearly guilty of having committed contempt as defined under Section 2 (c) of the Contempt of Courts Act, 1971, r/w Section 12 thereof as he appears to have flouted the orders dated 14.8.2008 and 19.9.2008 by passing the order dated 4/7.10.2008.

The learned single Judge, therefore, rightly came to the conclusion that a wilful and deliberate violation is established and hence the learned single Judge was justified in proceeding to punish the appellant.

Having arrived at the aforesaid findings, the question is now of sentence. In this regard, the learned single Judge does not appear to have considered the order dated 18.11.2008 whereby the appellant had withdrawn the order of single operation which of course was on account of a stay order of the High Court dated 6.11.2008. The appellant, therefore, appears to have been in a mood to harass the appellant but at the same time, the extreme punishment of one month imprisonment deserves to be modified to 15 days.

Consequently, we uphold the conviction and the punishment awarded to the appellant with a modification that he shall undergo only 15 days simple imprisonment as against one month awarded by the learned single Judge.

Sri Khare made a request for suspending the sentence in order to enable the appellant to avail of any further remedy for the redressal of his grievances. Consequently, we suspend the sentence of imprisonment as modified by us for a period of 15 days from today.

In the event the appellant fails to get any relief from any higher forum, he shall surrender immediately after 15 days to serve out the sentence.

The appeal stands disposed of, accordingly.

Order Date :- 4.9.2015

Irshad