Prabhakar S/O Vishwanath ... vs Ku. Indira D/O Ramdasji Dongre
2017 Latest Caselaw 4441 Bom

                                          1                                       CPL01.17.odt


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               : NAGPUR BENCH : NAGPUR.

                     CONTEMPT APPEAL (CPL) NO. 01 OF 2017
                                      IN
                     CONTEMPT PETITION NO. 99 OF 2012 (D)
                                      IN
                       WRIT PETITION NO. 494 OF 2010 (D)


 APPELLANT             : Shri Prabhakar S/o Vishwanath Deshmukh,
                         Aged about 69 years, Occu. Agriculturist,
                         R/o karanja Ghadge, Dist. Wardha,
                         President, Mahatma Fule Shikshan Prasarak 
                         Mandal, Karanja Ghadge, Dist. Wardha,
                         Indira Nagar, Near Power House,


                                              VERSUS

 RESPONDENT : Ku. Indira D/o Ramdasji Dongre,
              Aged about 36 years, Occu. Service,
              R/o Karanja Ghadge, Dist. Wardha.

  ----------------------------------------------------------------------------------------------
            Mr. A. V. Muley, Advocate for the appellant.
            Mr. P. N. Shende, Advocate for the respondent.
  ----------------------------------------------------------------------------------------------

                      CORAM:  SMT. VASANTI  A  NAIK &
                               ARUN D. UPADHYE, JJ.

th DATED : 13 JULY, 2017.

ORAL JUDGMENT (Per Smt. Vasanti A Naik, J.)

ADMIT. The appeal is heard finally with the consent of

the learned counsel for the parties.

                                   2                                 CPL01.17.odt


 2]               By this Contempt Appeal, the appellant has questioned

the judgment, dated 09.3.2017 in Contempt Petition No. 99/2012,

holding that the appellant has committed contempt of the Court and

directing the appellant to pay the fine of Rs.2,000/-, failing which he

would undergo a simple imprisonment of 10 days. Apart from the

aforesaid punishment, by the order dated 09.3.2017, the Joint

Charity Commissioner was directed to take appropriate action

against the appellant under the provisions of Section 41D(1) of the

Maharashtra Public Trusts Act and pass appropriate orders within six

months after hearing the appellant. Additionally, by the said order,

the appellant was directed to deposit costs of Rs.50,000/- with the

Registry of this Court, of which an amount of Rs.20,000/- was liable

to be paid to the respondent and an amount of Rs.30,000/- was

liable to be paid to the State of Maharashtra.

3] Few facts giving rise to the appeal are stated thus :-

The respondent was appointed as an Assistant Teacher

in the School run by Mahatma Fule Shikshan Prasarak Mandal, of

which the appellant was the President, on 21.3.1994. According to

the respondent, since her services were orally terminated, she had

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filed an appeal against the said termination before the School

Tribunal in the year 1998. That appeal was partly allowed by the

School Tribunal by the judgment, dated 25.11.2009. The Tribunal

directed the Shikshan Prasarak Mandal to reinstate the respondent in

service and pay 50% back wages to her. Being aggrieved by the said

judgment, the Management filed a writ petition. The parties arrived

at an amicable settlement during the pendency of the writ petition

and the writ petition was disposed of by an order dated 25.3.2010

with the consent of the learned counsel for the parties. The relevant

part of the order dated 25.3.2010 reads thus -

"1. Respondent no.1 shall submit an undertaking in writing to the petitioner by RPAD as also by hand with its copy to respondent no.6 - Education Officer, stating that she will forgo the relief of reinstatement if the petitioner-management gives her the salary in terms of order of School Tribunal, after deducting the amount already received by her for her service from 10.07.1997 till 07.01.2007.

2. The petitioner states that if such an undertaking of respondent no.1 is received by 5 th April, 2010, the petitioner shall pay to Respondent no.1, her balance salary as per the orders of School Tribunal, within a period of two months from 5 th April, 2010."

4] Being dissatisfied with the said order, the Shikshan

Prasarak Mandal filed a review application. The review application

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was dismissed on 18.11.2011. After the review application was

dismissed, the respondent filed Contempt Petition bearing C.P.No.

99/2012 seeking action against the appellant for non-compliance of

the terms in the order dated 25.3.2010. In the contempt petition,

the appellant stated in defence that since the respondent was

working in some other school from 1997 to 2007 and by the order

that was passed with the consent of the parties, the respondent was

entitled to the salary after deducting the amount received by her for

her services rendered in the other school from 1997 to 2007, the

amount of difference of salary could not be paid to the respondent

within the specified time. In the contempt petition, the respondent

had claimed an amount of Rs.3,88,000/- towards difference of

arrears of salary. Since, the appellant had disputed the said

calculations, the Court hearing the contempt petition, by the order

dated 06.1.2016, directed the Education Officer to determine the

amount that was payable by the appellant to the respondent. The

Education Officer submitted the report and according to the said

report, the respondent was entitled to a sum of Rs.1,88,767/-. The

said calculations were disputed by the appellant and hence, again the

Court hearing the contempt petition directed the Education Officer to

5 CPL01.17.odt

re-determine the amount after directing the appellant to deposit a

sum of Rs.10,000/-. The appellant deposited the said amount. As

per the second report of the Education Officer, the respondent was

entitled to a sum of Rs.2,94,447/-. The Court hearing the contempt

petition was surprised on seeing the two reports, which were

drastically at variance. It is stated that since there was a variance in

the two reports of the Education Officer, the Deputy Director of

Education was directed to determine the amount. As per the order of

the Deputy Director of Education, a sum of Rs.1,94,000/- was

payable by the appellant to the respondent and hence, the Court

directed the appellant to pay the said sum to the respondent. On the

said direction, the appellant immediately deposited the said amount

in this court. When the contempt petition was heard on 09.3.2017,

the Court held that since the appellant had initially avoided to attend

the contempt proceedings and had also raised a false defence in

respect of the entitlement of the respondent, it was necessary to hold

that the appellant had willfully disobeyed the undertaking given by

him in the writ petition. The Court hearing the contempt petition

directed the appellant to pay the fine of Rs.2,000/-, failing which to

undergo simple imprisonment for 10 days. Further, the Court

6 CPL01.17.odt

directed the Joint Charity Commissioner to take action against the

appellant under Section 41D(1) of the Maharashtra Public Trusts

Act. Additionally, the appellant was directed to deposit a sum of

Rs.50,000/- in the Court, of which Rs.20,000/- was payable to the

respondent and Rs.30,000/- to the State Government.

5] Shri Muley, the learned counsel for the appellant

submitted that it is apparent from the circumstances of the case that

the appellant could not have been held to be guilty of contempt. It is

submitted that the respondent was not entitled to the entire salary

for the period during which she did not work in the school run by the

Shikshan Prasarak Mandal and what was liable to be paid to her was

the difference in amount of salary that she had received in the school

in which she was teaching and the school run by the Shikshan

Prasarak Mandal, had she continued to work with the same. It is

submitted that after the writ petition was disposed of by the order

dated 25.3.2010, the Shikshan Prasarak Mandal had filed a review

application. It is stated that after the review application was

dismissed on 18.11.2011, the appellant and the other office bearers

in the Management took steps for determining as to what amount

7 CPL01.17.odt

was payable to the respondent, by securing the record pertaining to

the amount that the respondent had received towards salary in the

school in which she was working. It is submitted that there was a

serious dispute in respect of the amount that was liable to be paid to

the respondent. It is submitted that the Education Officer had given

two reports that were contradictory. It is stated that the first report

of the Education Officer showed that an amount of Rs.1,88,767/-

was payable whereas the other report showed that an amount of

Rs.2,94,447/- was payable. It is stated that even the Court hearing

the contempt petition was surprised with the variance in the two

reports of the Education Officer. It is submitted that the third report

had to be prepared by the Deputy Director of Education and after the

Deputy Director of Education determined the amount at

Rs.1,94,000/-, the said amount was directed to be paid to the

respondent and the appellant immediately paid the same. It is

submitted that in this background, it cannot be said that the

appellant had willfully and deliberately flouted the undertaking that

is incorporated in the order dated 25.3.2010. It is submitted that

merely because initially the appellant did not remain present in the

contempt proceedings, it cannot be said that the delay on the part of

8 CPL01.17.odt

the appellant to pay the amount to the respondent was deliberate

and intentional and with a view to flout the terms of the

undertaking, given to the Court on 25.3.2010. It is submitted that

the Court hearing the contempt petition would not have jurisdiction

to direct the Joint Charity Commissioner to take action against the

appellant under the provisions of Section 41D(1) of the Maharashtra

Public Trusts Act. It is submitted that the said direction in the order

dated 09.3.2017 is bad in law.

6] Shri Shende, the learned counsel for the respondent

supported the order dated 09.3.2017 and submitted that since the

appellant had not paid the amount that was liable to be paid to the

respondent for a long time and had also failed to remain present in

the Court until bailable warrant was issued for securing the presence

of the appellant, the Court rightly held that the appellant had

deliberately flouted the undertaking given by him in the Court in

Writ Petition No. 494/2010 on 25.3.2010. It is submitted that since

the Court had held that the disobedience on the part of the appellant

was willful and deliberate, the Court had rightly directed the

appellant to pay fine of Rs.2,000/- and costs of Rs.50,000/- The

9 CPL01.17.odt

learned counsel had however nothing to say about the direction to

the Joint Charity Commissioner to take action against the appellant

under the provisions of Section 41D(1) of the Maharashtra Public

Trusts Act.

7] On hearing the learned counsel for the parties, it

appears that the Court was not justified in holding that the appellant

had deliberately failed to comply with the undertaking given by him

in the Court on 25.3.2010. The only reason recorded by the Court

for holding that the appellant had willfully disobeyed the

undertaking is that the petitioner had avoided to attend the

proceedings under the Contempt of Courts Act and had raised a false

defence, disputing the amount that was liable to be paid to the

respondent. It was necessary for the Court to have considered

whether the inaction on the part of the appellant to pay the amount

to the respondent as per the order dated 25.3.2010 was willful and

deliberate. The respondent was admittedly working in some other

school from the year 1997 to 2007 and what was liable to be paid by

the appellant to the respondent was only the difference in salary that

the respondent may have lost due to the termination of her services.

10 CPL01.17.odt

The appellant had filed a review application seeking a review of the

order dated 25.2.2010, of which the contempt is alleged to have

made. Immediately on the dismissal of the review application, the

contempt petition was filed by the respondent on 19.12.2011. When

the contempt petition came up before the Court on 06.1.2016, the

Court was satisfied that there was some dispute and therefore, the

Court found it appropriate to direct the Education Officer to decide

as to what amount is payable to the respondent. The Education

Officer submitted the report, stating therein that an amount of

Rs.1,88,767/- was payable by the Management. Since, the

calculations in the said report were disputed, the Court directed the

Education Officer to re-examine the matter and submit a report. It

was stated in the subsequent report of the Education officer that the

respondent was entitled to Rs.2,94,447/-. Even the Court hearing

the contempt petition was surprised with the variance in the two

reports of the Education Officer. The Court, therefore, held that it

was necessary for the appellant to deposit a sum of Rs.1,93,000/- in

this Court within four weeks, as per the decision of the Deputy

Director of Education that the said amount was payable to the

respondent. The said order of the Court was complied with by the

11 CPL01.17.odt

appellant and the amount was deposited in this Court within four

weeks.

8] In the aforesaid set of facts, it cannot be said that the

dispute raised by the petitioner in regard to the amount payable to

the respondent was not genuine and bona fide. The three different

reports, two of the Education Officer and one of the Deputy Director

of Education, vary to a great extent. If that is so, it could not have

been said that the appellant had raised a false defence by disputing

the amount payable to the respondent. The Court has held that the

appellant was guilty of contempt only because he had avoided to

attend the Court proceedings and that he had raised a dispute that

was not bona fide. In the circumstances of the case, it cannot be said

that the dispute raised by the appellant was not bona fide. In fact,

the Court hearing the contempt petition had on three different

occasions referred the matter to the education authorities as the

parties were disputing the amount that was determined by the

education authorities. Lastly, after accepting the report of the

Deputy Director Education, the Court had directed the appellant to

deposit the amount, as determined by the Deputy Director Education

12 CPL01.17.odt

within one month and the said amount was deposited by the

appellant. In this background the appellant could not have been

punished under the provisions of the Contempt of Courts Act. Also,

as rightly stated on behalf of the appellant, the Court hearing the

contempt petition could not have directed the Joint Charity

Commissioner to take action against the appellant under the

provisions of Section 41D(1) of the Maharashtra Public Trusts Act

and to take a decision in the said proceedings within six months. In

the circumstances of the case, the order dated 09.03.2017 is liable to

be set aside.

9] Hence, for the reasons aforesaid, the contempt appeal is

allowed. The order dated 09.03.2017 is hereby set aside. In the

circumstances of the case, no order as to costs.

                        JUDGE                            JUDGE

 Diwale