1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. Contempt Petition No. 173 of 2008 in Writ Petition No. 342/2008 (Pending) (Dr. Dayaram Bondkuji Choudhari & ors. Vs. Shri Nanasaheb Vithobaji Tekade & ors.) Appeal District : Application No. of 200 Writ petition - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. A. Shelat, Adv. for the petitioners. Mr. N.H. Joshi, Adv. for R- 1, 2, 4 and 5. Mr. N. S. Khubalkar, A.G.P. for R- 3, 6 and 7. CORAM : Smt. Vasanti A. Naik, J. DATE : 20 th MARCH, 2009 By this petition, the petitioners seek an action against the respondents under the provisions of the Contempt of Courts Act, 1971, for committing contempt of the Court by willfully disobeying the order passed by the division bench of this Court on 27/3/2008 in Writ Petition No. 342/2008. It appears that a dispute between the petitioners and the respondent nos. 1 and 2 was pending before the Deputy Charity Commissioner in regard to the management and administration of the Trust and the 2 petitioners had filed an application under Section 41A of the Bombay Public Trusts Act, seeking certain directions from the Deputy Charity Commissioner. The Deputy Charity Commissioner allowed the application filed by the petitioners and directed that the parties should function together and take the decisions for the administration of the Trust, by majority. The order passed by the Deputy Charity Commissioner was challenged by the respondent nos. 1 and 2 in Writ Petition No. 342/2008. It appears that the division bench of this Court had, by an order dated 27th of March, 2008, granted stay to the order passed by the Deputy Charity Commissioner and directed the petitioners to the writ petition (respondent nos. 1 and 2 herein) not to take any major financial decisions and also not to make any appointments of teaching and non- teaching staff, until further orders. It is the case of the petitioners that in spite of the order dated 27th of March, 2008, the respondents had published an advertisement inviting the applications for appointments on the posts of Teachers on 15/8/2008. The respondents had 3 also passed a resolution for making the appointments of the Teachers. The orders of appointments were issued to the Teachers on 20/8/2008 under the signatures of the respondent no.1. It is the case of the petitioners that the appointments of the newly appointed candidates were approved by the respondent no. 3- Education Officer on 28/8/2008. All these actions, according to the petitioners, clearly showed that the respondents did not have any regards for the order passed by the High Court on 27th of March, 2008 and had deliberately and willfully flouted the same. It is the case of the petitioners that when a letter was issued by the petitioners to the respondent no. 4, the Headmaster of the School, on 30/1/2008, asking the respondent no.4 to comply with the orders passed by the Deputy Charity Commissioner, the respondent no.4 replied to the petitioners by a communication dated 6/2/2008 and informed the petitioners that a writ petition against the order passed by the Deputy Charity Commissioner, was pending and, therefore, 4 there was no reason to comply with the orders passed by the Deputy Charity Commissioner. It is the case of the petitioners that the respondent nos. 4 and 5 issued the advertisement, the respondent no.1 issued the appointment orders of two Teachers and in the proposal sent to the Education Officer, it is clearly mentioned that there is no case pending and these acts clearly demonstrate that the respondents have committed the contempt of the order passed by the High Court on 27th of March, 2008. After the issuance of notice before admission on 22nd of September, 2008, the parties filed the replies on affidavit. It is submitted on behalf of the respondent no.3, the Education Officer, that the contempt proceedings against the Education Officer need to be dropped as the Education Officer was not aware of the order passed by the High Court on 27/3/2008. It is stated in the reply that the respondent no.3 was an Incharge Education Officer and since the respondent no.1 informed to the Education Officer that there was no case pending between the parties and since the 5 order of the High Court dated 27/3/2008 was not brought to the notice of the Education Officer, the Education Officer granted the approval to the appointments of two Teachers, by the order dated 28/8/2008, in the absence of knowledge of the order dated 27/3/2008. In the aforesaid facts and circumstances, according to the respondent no.3, it cannot be said that the respondent no.3 is guilty of contempt and has deliberately and willfully flouted the order passed by the High Court on 27/3/2008. The respondent nos. 1, 2, 4 and 5 filed a joint reply on 15/12/2008. It is stated in the reply that the respondent nos. 1 and 2 were aware of the order dated 27/3/2008, but the respondent nos. 4 and 5 were not parties to the petition and they were not aware of the order dated 27/3/2008. It is stated in the reply that by a resolution dated 21/10/2008, the School Committee cancelled the appointments of the two Teachers. It is stated in the reply that the respondents tender their unconditional apology in the matter and beg pardon of the Court stating further that such error would 6 not be committed by the respondents at any point of time, in future. It is stated in the reply that the mistake had been caused inadvertently and without any malafide intention. A second affidavit in reply was filed on behalf of the respondent nos. 1, 2, 4 and 5 on 25/2/2009. It is reiterated in this reply that by a resolution dated 21/10/2008, the School Committee cancelled the appointments of the concerned employees. The respondent no.1 then filed an affidavit on 5/3/2009. It is stated in the reply that the respondent no.1 had lost sight of the order dated 27/3/2008 as the writ petition pertains to a dispute between the trustees in relation to the proceedings under Section 41A of the Bombay Public Trusts Act. It is stated in the reply that the act of the respondent no.1 was unintentional and the action of appointing the two Assistant Teachers was not deliberate. It was stated that the two Teachers were removed and the respondent no.1 had purged the contempt allegedly committed by him. The respondent no.1 again sought an unconditional apology. 7 The respondent no.4 filed an additional affidavit on 5/3/2009. Similarly, the respondent no.5 also filed an additional affidavit on 5/3/2009, stating therein that the respondent no.5 was not aware of the interim order though the respondent no.5 was aware of the pendency of the writ petition. It is reiterated in these affidavits that there was no intention whatsoever of the respondents to disobey the orders passed by the High Court on 27/3/2008. The Deputy Charity Commissioner, the respondent no.6 to this petition, was a formal party as he was a party to the writ petition bearing No. 342/2008. I have considered the submissions made on behalf of the parties and have also perused the affidavits filed by the respondents and some of the documents which are annexed to the petition as also the affidavits. The contempt proceedings against the respondent no.3 need to be dropped for the sole reason that the respondent no. 3 was not aware of the order passed by the High Court on 27/3/2008 and it is nobody's case that the respondent no.3 8 was made aware of the order passed by the High Court on 27/3/2008 before the respondent no.3 granted approval to the appointment orders, by the order dated 28/8/2008. Similarly, the proceedings against the respondent no.5 also need to be dropped because the respondent no.5 was not a party to the writ petition bearing No. 342/2008 and there is nothing on record to show that the respondent no.5 was informed about the passing of the order dated 27/3/2008 by the petitioners before the issuance of the advertisement by the respondent no.5 on 15/8/2008. The only ground made against the respondent no.5 is about the issuance of the advertisement dated 15/8/2008 and the passing of the resolution for appointment of the Teachers. Since it is not the case of the petitioners that the petitioners had furnished a copy of the order dated 27/3/2008 to the respondent no.5 before the publication of the advertisement and passing of the resolution, the case of the respondent no.5 that he was not aware of the order passed by the High Court on 9 27/3/2008 needs to be believed. As regards the respondent no.4, it is necessary to consider that the respondent no.4 was not a party to the Writ Petition No. 342/2008. It is not the case of the petitioners that they had informed the respondent no.4 about the order passed by the High Court on 27/3/2008 though it is admitted on behalf of the respondent no.4 that the respondent no.4 was aware of the pendency of the Writ Petition No. 342/2008. It is categorically stated by the respondent no.4 on affidavit that the respondent no.4 was not aware of the order dated 27/3/2008. The petitioners have alleged that the respondent no.4 has committed a contempt of the High Court, by issuing an advertisement dated 15/8/2008 and by stating in the proposal sent to the Education Officer that no case is pending on the date of issuance of the proposal. The respondent no.4 is the Headmaster and was not a party to the writ petition. In the absence of any case made out on behalf of the petitioners that the respondent no.4 was served with a copy of the order dated 27/3/2008, as he was not a party to the 10 petition, by the petitioners before publishing the advertisement dated 15/8/2008, it cannot be said that the respondent no.4 had committed any contempt by publishing an advertisement in the newspaper dated 15/8/2008. Though much has been said about the statement made by the respondent no.4 in the proposal sent by the respondent no.4 to the Education Officer for seeking a grant of approval about the absence of pendency of cases, the said statement cannot be enough for holding that the respondent no.4 had willfully and deliberately disobeyed the order passed by the High Court on 27/3/2008. An incorrect statement in the proposal would not make the respondent no.4 liable for action under the Contempt of Courts Act for flouting the order dated 27/3/2008, for having issued the advertisement on 15/8/2008, specially when there is nothing on record to show that the respondent no.4 was made aware by the petitioners, of the order passed by the High Court on 27/3/2008. It is necessary to note that though the advertisement was published on 15/8/2008 and the interviews were held 11 and the appointments were made on 20/8/2008, the petitioners had not served the respondent no.4 with a copy of the order dated 27/3/2008, asking the respondent no.4 to refrain from proceeding with the process of making the appointments in view of the advertisement published on 15/8/2008. Thus, in the absence of a case that the order dated 27/3/2008 was actually served on the respondent no.4 before he had published an advertisement on 15/8/2008, it cannot be held that the respondent no.4 has deliberately and willfully flouted the orders passed by the High Court on 27/3/2008. As already stated herein above, making of the incorrect statement in the proposal and the reasons for making the said statement, as pointed out in the affidavit in reply, would not be relevant for deciding this contempt petition. It is, however, necessary to note that the respondent nos. 1 and 2 were aware of the pendency of the Writ Petition No. 342/2008 as they were the petitioners therein. They have already admitted that they were aware of the order passed by the High Court on 27/3/2008. 12 The respondent nos. 1 and 2 have, however, stated in the affidavit that the subject matter of the Writ Petition No. 342/2008 pertained to the dispute between the trustees in relation to Section 41A of the Bombay Public Trusts Act and in the background of this dispute, the appointment of the two Teachers were made mistakenly and unintentionally. They have also stated that they have purged the alleged contempt by passing a resolution for removal of the two appointed Teachers and have also removed them from service. They have sought pardon from the Court and have tendered their unconditional apology at the first opportunity. The conduct of the respondent nos. 1 and 2 and the action taken by them, however, cannot be justified. The respondent no.1 had himself issued the appointment orders to the two Teachers. Though on a consideration of the facts and circumstances of the case, this Court is inclined to take a lenient view in the matter, it is necessary to censure the conduct of the respondent nos. 1 and 2. This Court records its displeasure in regard to the same. Since the 13 respondent nos. 1 and 2 have purged the alleged contempt by immediately removing the two Teachers who were appointed in the School and have tendered their unconditional apology before this Court, this Court accepts the unconditional apology and warns the respondent nos. 1 and 2. The counsel for the respondent nos. 1 and 2 states that the respondent nos. 1 and 2 volunteer to pay a sum of Rs. 10,000/- to the petitioners for the inconvenience caused to the petitioners in view of the actions of the respondent nos. 1 and 2. The said amount may be paid to the petitioners by the respondent nos. 1 and 2 within a period of fifteen days. For the reasons stated herein above, the contempt petition is disposed of, with no order as to costs. JUDGE RMP