Bombay High Court
Ujjwala W/O Arun Deshmukh vs Pratibhatai Mahant, Secretary, ... on 18 December, 2021
Bench: A.S. Chandurkar, G. A. Sanap
MCA-420-21 1/5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
MISC. CIVIL APPLICATION NO.420 OF 2021
IN
CONTEMPT PETITION NO.344 OF 2018 (D)
IN
WRIT PETITION NO.4545 OF 2011 (D)
Ujjwala w/o Arun Deshmukh
-vs-
Pratibhatai Mahant, Secretary, Sai-Krupa Kisan Education Society, MIDC, Butibori, Nagpur
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
Shri Anand Parchure, Advocate for applicant.
Shri S. S. Ghate, Advocate for respondent.
CORAM : A. S. CHANDURKAR AND G. A. SANAP, JJ.
Date on which arguments were heard : December 15, 2021
Date on which order is pronounced : December 18, 2021
Order : (Per : A. S. Chandurkar, J.)
Admit. Heard the learned counsel.
The applicant seeks review of the order dated 11/08/2021
passed in Contempt Petition No.344/2018. By the said order
after observing that the respondent in the said contempt petition
had filed an affidavit and had stated that the amount of
Rs.3,41,979/- to which the petitioner was entitled had been
included in the proposal submitted by the said respondent to the
Joint Director of Higher Education, the contempt petition was
disposed of by observing that the directions issued in Writ
Petition No.4545/2011 had been complied with. In the review
application it has been stated that it is the liability of the non-
applicant/respondent in the contempt petition to pay the
amount of Rs.3,41,979/- and that liability cannot be passed over
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on the Joint Direction of Higher Education. For said purpose
attention is invited to paragraph 16 of the order dated
17/03/2017 in Writ Petition No.4545/2011 wherein this Court
had directed in clear terms that back-wages for the period from
10/09/2011 to 01/08/2013 would be paid by the present non-
applicant. Since this clear direction was overlooked while
accepting the statement made on behalf of the non-applicant
that the amount of back-wages of Rs.3,41,979/- for the period
from 10/09/2011 to 01/08/2013 had been included in the
proposal that was sent to the Joint Director of Higher Education,
there was an error apparent on the face of record warranting
exercise of review jurisdiction.
2. Reply has been filed on behalf of the non-applicant
opposing the prayer made in the review application. Further a
preliminary objection is raised by the learned counsel for the
non-applicant to the maintainability of review application on the
ground that in view of the decision in Metal Box India Ltd. vs.
State of Maharashtra and ors. 2004 (3) Mh.L.J. 528, the Court had
no power to review its own order passed in contempt
proceedings. Reference has also been made to the decision of
the Allahabad High Court in State vs. Baldev Raj 1992 Cri.L.J.
1251 and judgment of Jammu and Kashmir High Court dated
22/05/2013 in LPASW No.179/2010 (State of J & K and anr. vs.
Ravi Kant Sharma and ors.) to substantiate the aforesaid
contention. It is thus submitted that since the review application
itself was not maintainable the same was liable to be dismissed.
Without prejudice to the aforesaid objection, it was submitted
that there was no error apparent on the face of record to
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warrant invocation of review jurisdiction.
In response to the aforesaid preliminary objection, the
learned counsel for the applicant placed reliance on the decision
in Himanshu Joshi vs. Utpal Kumar and anr. AIR 2021 Uttarakhand
12 to urge that the High Court being a Court of Record could
exercise review jurisdiction in the interest of justice.
3. On hearing the learned counsel for the parties, it is found
that the preliminary objection raised by the learned counsel for
the non-applicant is without any substance for the reason that
the decision relied upon by him in Metal Box India Ltd. (supra)
has been held as not laying down good law by the Division
Bench in Shyamsundar vs. Lokesh Chandra and ors. 2011(2) Mh.L.J.
432. The Division Bench therein was answering the reference
made to it as to whether the High Court while exercising powers
under Contempt of Courts Act, 1971 by virtue of Article 215 of
the Constitution of India had jurisdiction to review its own
order. It was held that the restrictions in ordinary law as
regards review that apply to authorities constituted under
Statute would not apply to the power exercised by the High
Court under Article 215 of the Constitution of India while
dealing with the aspect of contempt. The power of review was
available even beyond Section 114 read with Order XLVII of
Code of Civil Procedure, 1908 and would be available to
advance the cause for which such Court is constituted. In
short, the decision relied upon by the learned counsel for the
non-applicant cited above has already been held not to lay down
good law.
We may in the passing observe that the view as taken by
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the Division Bench in Shyamsunder (supra) has been considered
by the Kerala High Court in Bhagavat Singh G. vs. Manoj Joseph
and ors. AIR 2019 Ker 30 and followed. The observations in
Himanshu Joshi (supra) relied upon by the learned counsel for
the applicant support the maintainability of the review
application. We thus find that the preliminary objection as
raised to the maintainability of the review application is without
any substance and has no legal support.
4. Coming to the grounds raised in the review application
we find that in paragraph 16 of the order passed in Writ Petition
No.4545/2011 it was observed as under :
"16. Accordingly, we reinstate petitioner back in employment
of respondent No.4 for a period from 10/09/2011 till she
reached the age of 62 years i.e. upto 01/08/2013. She will
be entitled to grant of continuity. Back-wages for said period
shall be paid by respondent No.4. "
These directions clearly indicate that the liability to pay
back-wages for the period from 10/09/2011 to 01/08/2013 was
on the non-applicant. While disposing of the contempt petition
on 11/08/2021 the said directions were overlooked by us and
hence we find that this has resulted in an error apparent on the
face of record. The submission of proposal for releasing the
amount of Rs.3,41,979/- to the Joint Director of Higher
Education would be of no consequence for the simple reason
that such liability was to be satisfied by the non-applicant herein
and not the Joint Director of Higher Education. For aforesaid
reasons the order dated 11/08/2021 in Contempt Petition
No.344/2018 is recalled. Contempt Petition No.344/2018 is
restored for its consideration on merits. The contempt petition
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be listed for further consideration on 22/12/2021.
Misc. Civil Application No.420/2021 is allowed in
aforesaid terms. No costs.
(G. A. Sanap, J.) (A. S. Chandurkar, J.)
Asmita
Digitally signed byASMITA
ADWAIT BHANDAKKAR
Signing Date:18.12.2021
17:18:12
