Snehlata Shrinivas Dashrthe vs Nutan Bahuuddeshiya Vidyalaya
2009 Latest Caselaw 74 Bom

                                      1


            IN THE HIGH COURT OF JUDICATURE OF BOMBAY,
                       BENCH AT AURANGABAD




                                                                    
                   CONTEMPT PETITION NO.297 OF 2008




                                            
     Snehlata Shrinivas Dashrthe
                                                         Petitioner

          -VERSUS-




                                           
     Nutan Bahuuddeshiya Vidyalaya, 
     and another.
                                                                Respondents




                                 
                              ...

Shri.R.J.Godbole, h/f Shri.C.V.Dharurkar, Advocate for

petitioner.

Shri.V.J.Dixit, learned Senior Advocate assisted by

Shri.Rodge, Advocate for the respondent nos.1 and 2.

...

(CORAM : R.K. DESHPANDE, J.)

Date : 10th December, 2009.

PER COURT :-

1. Notice in this contempt petition was issued

on 10.11.2008 which was made returnable after three

weeks. When the matter was listed before this Court on

02.07.2009, time was sought on behalf of respondent

nos.1 and 2 to file reply and it was granted till

22.07.2009. However, the respondent nos.1 and 2 were

directed to remain present on 22.07.2009. On

22.07.2009, none appeared for the respondents. Hence,

this Court passed an order "Respondents be given

notice to appear in person. Notice returnable after

six weeks". Thereafter, on 04.09.2009 and on

25.09.2009, time was granted to the respondents to

file an affidavit, upon an assurance that respondent

nos.1 and 2 shall remain present on next occasion. The

respondent nos.1 and 2, thereafter filed affidavit

dated 08.10.2009, which was sworn in by the respondent

no.2-the President of the Society. Thereafter, the

matter was listed before this Court on 17.11.2009.

After hearing the parties, this Court passed a

detailed order. In paragraph No.6 of the said order,

this Court observed as under :-

"If the Management is insisting the petitioner to join the services by accepting

fresh order of appointment dated 10.08.2007 as a condition to permit her to work, prima facie this appears to be in breach of the order passed by this Court on 20.07.2007."

2. In paragraph No.7 of the order this Court

observed as under:-

"However, if the Management is not permitting her to perform the duties unless she accepts

the order of appointment dated 10.08.2007, then this prima facie amounts to willful breach of the order dated 20.07.2007."

3. Thus, this Court while passing the detailed

order on 17.11.2009, made the aforesaid charges very

clear to the respondents. After passing of the said

order, matter was posted for hearing on 10.12.2009

i.e. for today and the respondent Nos.1 and 2 were

directed to remain personally present in the Court.

Shri.Dixit, the learned Senior Counsel assisted by

Shri.Rodge states that respondent Nos.1 and 2 are

personally present in the Court, in compliance of the

order dated 17.11.2009.

4. Shri.Dixit, the learned Senior Counsel

relying upon the provisions of Rule 19, 21 and 22 of

the said Rules, urged that mere issuance of notice in

Form I appended to the said Rules is not enough and

the petitioner is required to submit the "Draft

Charges" and this Court is required to frame such

charges, which are to be replied on affidavit by the

contemnors. According to Shri.Dixit, it is only after

affidavit is filed, in response to the charges so

framed by the Court that matter can be proceeded with

for final hearing. According to Shri.Dixit, neither

the petitioner has furnished the draft charges nor

this Court has framed the draft charges as yet though

the matter was admitted on 17.11.2009. Hence,

Shri.Dixit prayed for framing of draft charges and to

provide an opportunity to file an affidavit in

response to the same.

5.

In order to appreciate the contention raised

by the learned Senior Counsel Shri.Dixit, the

provisions of Rules framed by the High Court to

regulate the proceedings for contempt, under Article

215 of the Constitution of India and the Contempt of

Courts Act, 1971, which are incorporated under Chapter

XXXIV of the Bombay High Court Appellate Side Rules,

1960 (Hereinafter called as "the said Rules")are

required to be seen. The cognizance of contempt and

the procedure to deal with the contempt petition, is

specified under Rule 6 and onwards. Rule 6 of the said

Rules deals with the parties to the contempt petition,

whereas Rule 7 deals with the contents of the

contempt petition, including an affidavit to be

filed in support thereof and the documents to be

accompanied along with such petition. The Rules 8 to

11 of the said Rules which are relevant for this case,

are reproduced below :-

"8(1) Every Petition or Reference under Rule

5(b), (c), (d) or (e) shall on being filed or received be forthwith posted before the Court for preliminary hearing and for orders as to

issue of notice. Upon such hearing, the

Court, if satisfied that a prima facie case has been made out for issue of notice, may

issue such notice to the Contemnor and, if not so satisfied may dismiss the Petition.

(2) The Court may, if it thinks it absolutely necessary to do so, and where the

Court is of the opinion that mere service of Notice, will not secure the presence of the Contemnor, along with issue of Notice also

issue a bailable or non-bailable warrant for arrest of the contemnor.

9.(1) Notice to the person charged shall be in form I. The person charged shall, unless otherwise ordered, appear in person before the Court as directed on the date fixed for hearing of the proceeding, and shall continue to remain present during hearing till the

proceeding is finally disposed off by Order of the Court.

(2) When action is initiated on a Petition or a Reference, a copy of the Petition or the

Reference along with the annexures and Affidavits shall be served upon the person charged.

10. The person charged may file his reply by way of an Affidavit or Affidavits within 14

days from the service of the Notice or within

such time as the Court may fix.

11. No further Affidavit or document shall be filed except with the leave of the Court."

6. Thus, entire scheme of Rules 8, 9, 10 and 11

of the said Rules, read with contents of notice in

Form I, indicate that the contemnor is put on notice

that he is required to meet the allegations made

against him in the contempt petition. The material in

support of such allegations is also served upon him

along with the order of the Court. Perusal of Form of

notice, itself makes clear that the Court is satisfied

that there exists a prima facie case for issuance of

notice for considering action under Contempt of Courts

Act against contemnor. The contemnor is put on notice,

as shown in Form I, that the contempt petition has

been fixed for hearing on the date specified therein

and the contemnor is required to appear in person and

to continue to remain present during hearing on all

subsequent dates, which the Court may fix in the

matter, till proceedings is finally disposed of by an

order of the Court. Notice calls upon the contemnor to

show cause as to why action under Contempt of Courts

Act should not be taken against the contemnor and in

case of failure to appear before the Court, as

directed and to show cause, the Court shall proceed to

pass such orders as may deem fit and proper.

7. Thus, it is only one notice in Form I, which

is contemplated by the aforesaid Rules. Such notice is

issued only after the Court is prima facie satisfied

that the case has been made out for issuance of notice

against the contemnor. It may be open for the Court,

to issue "notice before admission" instead of issuing

"notice" in Form I, in order to enable the Court, to

attain the satisfaction about the existence of prima

facie case for contempt. However, once the notice in

Form I is issued, then it amounts to an admission of

contempt petition and the contemnor is required to

file his affidavit in response to such notice. After

receipt of such affidavit filed in defence, the Court

is required to adjudicate the contempt petition by

holding an enquiry as contemplated by Rule 22 and to

pass final order under Rule 26 of the said Rules, on

the basis of the affidavit or after taking such

further evidence as the Court may deem fit and proper.

8. Shri.Dixit, the learned Senior Counsel relied

upon the provisions of Rule 19(a),19(c) and 20 of the

said Rules, which is reproduced below:-

"19.(a) Every Notice issued by the High Court

or Designated Court to the contemnor shall be accompanied by a copy of Petition or Reference, as the case may be, together with the copies of Affidavits, if any.

(b)******

(c) Notice of every proceeding under this Act shall be served personally on the person

charged, unless the Court, for reasons to be recorded, directs otherwise. In that case service may be effected in the manner

prescribed under the Code of Civil Procedure and/or the High Court Rules or the Rules of

the concerned Court for service of process.

20. Whenever the High Court or Designated

Court issues a notice, it may dispense with the personal attendance of the person charged with the contempt and permit him to appear

through an Advocate and in its discretion, at

any stage of the proceeding, direct the personal attendance of such person, and, if

necessary, enforce such attendance in the manner herein above provided."

According to the learned Senior Counsel, Rule

19(a) reproduced above, require second notice to be

issued to the contemnor and such notice is in respect

of the draft charges, which are required to be framed

by the Court after admitting contempt petition.

Relying upon the provisions of Rule 19(c) and Rule 20

reproduced above, the learned Senior Counsel urged

that the Phrase "Person Charged" employed therein,

indicate that the draft charges are required to be

framed and in respect of it, the notice is required to

be issued, as required by Rule 19(a) reproduced above.

According to him, this requirement of issuance of such

notice is in addition to the requirement of issue of

notice under Rule 8(1) and 9(1) and (2) r/w Form I

appended to the said Rules.

9. The contention of the learned Senior Counsel

about the requirement of issuance of notice under Rule

19(a) reproduced above, can not be accepted for more

than one reason. Firstly, the notice contemplated by

Rule 19(a), is a notice in respect of a petition or a

reference under section 15(2) of the Contempt of

Courts Act, which is apparent from the preceding

provisions of Rules 12 and 14 of the said Rules,

relating to a petition under section 15(2) of the said

Act. The proceedings of contempt in instant case, are

not under section 15(2) and hence Rule 19(a) does not

apply. Secondly, the provision of Rule 9(1) and (2)

deal with the contempt other than one under section

15(2) of the said Act and hence the present

proceedings are governed by Rule 9(1) and (2) of the

said Rules. Thirdly, it can not be the intention of

the Legislature to provide for issuance of second

notice of contempt, in respect of the same contempt

petition, for the reason that the first notice in Form

I is required to be issued only after the Court is

satisfied that prima facie case has been made out for

issuance of notice. The notice in Form I, is for final

hearing of the matter and not admission of the matter.

10. The proceedings of contempt petition are

quasi-criminal in nature and hence, the provision in

respect of framing charge in criminal proceedings, as

contained in the Code of Criminal Procedure, 1973 can

not be read into it. Once the notice in Form I is

issued, the contemnor is tried for the charges or

allegations, which are contained in contempt petition.

There is no requirement of law in respect of the

petitioner filing or submitting any draft charges to

the Court or the Court framing any draft charges

against the contemnor, in response to which, he is to

be afforded an opportunity to file affidavit. The

phrase "Person Charged" employed at several places

under Rules, if read in the background of provisions,

makes it clear that it refers to the allegations made

in the contempt petition. However, if, the Court while

issuing notice on prima facie satisfaction of the case

for contempt, feels that the allegations are vague or

the contemnor is required to be put on notice in

respect of the specific charge, then it is open for

the Court to pass appropriate order, to make out the

exact case, which the contemnor is expected to meet or

to frame the charge/s. The object of framing charge/s,

is to convey the contemnor, the exact case which he is

required to meet. It is not the form of charge/s,

which is material but, it is substance of charge/s,

which is material. If such substance of charge is made

clear to the contemnor either in the contempt petition

or by passing an order, then that is enough compliance

of providing an opportunity to the contemnor, to meet

the case. In view of this, the absence of framing of

draft charge/s would, neither result in failure to

provide an opportunity to the contemnor nor would

deter the Court from proceeding to decide the contempt

petition finally. Hence, the contention raised by

Shri.Dixit, the learned Senior Counsel that the draft

charges are required to be framed after admission of

the contempt petition or issuance of notice in Form I,

is rejected.

11. So far as the present case is concerned, it

is not in dispute that the contemnors were issued with

notice, which is in Form I of the said Rules and it

was accompanied by a copy of contempt petition

supported by Affidavit and annexures thereto.

Initially, on 10.11.2008, the notices in Form I were

issued to the contemnor. However, this Court on second

occasion issued notices on 22.07.2009. In response to

the said notice, the contemnors appeared and filed

their Affidavits. After hearing all the parties, the

order dated 17.11.2009 was passed by this Court,

containing exact nature of charge/allegations against

the contemnors. The matter was admitted on 07.11.2009

itself and is fixed today for final hearing, by making

it clear in the order dated 17.11.2009 itself that it

shall be finally heard on 10.12.2009. The order dated

17.11.2009 is speaking order and there is no ambiguity

nor any doubt in understanding the exact nature of

charges or allegations, urged by the learned Senior

Counsel. The contemnors are given more than a

reasonable and sufficient opportunity to meet the case

made out against them. It cannot therefore be said

that the contemnors were not made aware of such case.

12. In view of above, the requirement of law in

respect of affording contemnor an opportunity to meet

the charges, is fully complied with and the matter is

required to be proceeded with for final hearing.

However, Shri.Dixit, the learned Senior Counsel, at

this stage, prayed for some time, to challenge this

order in appropriate proceedings. The said request is

accepted and hence, the matter is posted after

vacation. However, it is made clear that the contemnor

shall remain present in this Court on each and every

date of hearing.

(R.K. DESHPANDE)

JUDGE GAS/cp297.08