Bombay High Court
Shivaji Education Society ... vs State Of Maharashtra Through ... on 17 April, 2017
Bench: V.A. Naik
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
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
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
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
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
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
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.
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
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
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.
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
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
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
