1 CP No.180/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CONTEMPT PETITION NO.180/2010 IN WRIT PETITION NO.2535/2009 Madan Krushnaji Saitwal Age: 49 Yrs., occu. Service, R/o Rath Galli, Raver, Tq.Raver, Dist. Jalgaon. - PETITIONER VERSUS 1) Dilip Punamshet Agrawal Age: 52 Yrs., occu. President, R/o Near Tirupati Oil Mill, Bhoiwada, Tq. Raver, District Jalgaon. 2) Jayant Sudhakar Kulkarni, Age:42 Yrs., occu. Service/ Secretary, R/o Tirupati Nagar, Raver, Tq. Raver, District Jalgaon. 3) Rajkumar Lilachand Jain Age: 40 Yrs., occu. Service/ Head Master, r/o Saraswati Vidya Mandir, Raver, Tq. Raver, District Jalgaon. 4) The Education officer (Primary), Zilla Parishad, Jalgaon. - RESPONDENTS ***** Mr.SP Brahme, Advocate for Petitioner; Mr.MM Bhokarikar, Advocate for Resp.Nos.1 to 3; Mr.MS Sonawane, Adv. For Resp.No.4 2 CP No.180/2010 ----- CORAM : K.U.CHANDIWAL, J. DATE : 8th NOVEMBER, 2011. ORAL JUDGMENT: 1) Rule. Rule made returnable forthwith. By consent of parties, heard finally. 2) The petitioner claims to be an employee of Saraswati Vidya Mandir, Raver and his claim was accepted by the School Tribunal, Nasik. Challenge to the said order by the respondents/management –Saraswati Vidya Mandir in Writ Petition No.2535/2009, yield in issuing Rule by order dated 12th November, 2009. In paragraph 4, this Court directed the management – “Respondent No.1 herein shall be continued in the school in pursuance to the order passed by the Tribunal from 1st December onwards and he shall be paid salary admissible to the post since thereafter. Interim stay to the impugned order only in respect of payment of salary, as directed by the Tribunal from the date of passing of the order till the end of November 2009”. 3) Reading the aforesaid order, no different meaning can be drawn since it is clear, if the management feels that there is any ambiguity in the order, then it had ample opportunities to get the said order rectified, 3 CP No.180/2010 corrected or ratified as they desire. Till the contempt proceedings are initiated by the petitioner, the employee/clerk, the management remained in slumber. 4) Mr.Bokharikar, learned Counsel, now submits that an application, to get the order dated 12th November, 2009 corrected/rectified, is moved and pending before this Court in Writ Petition No.2535/2009. He also submits, there are directions to the management to pay the arrears within six weeks, which period expires on 30th November, 2011. 5) Learned Counsel for the petitioner is unaware of such directions issued in Writ Petition No.2535/2009. It is certain, Mr. Bokharikar has not taken pains to furnish, at least, ordinary copy of such directions of this Court in Writ Petition No.2535/2009 or in any Civil Application. 6) Mr.Bokharikar, learned Counsel for the management, invited my attention to affidavit in reply filed on behalf of the Respondents/management and he read the contents of paragraphs 14 clauses (a) to (s). 7) Without accepting the contentions raised 4 CP No.180/2010 in said paragraph 14 of the affidavit in reply, the fact remains, they deal with the illegalities committed by the petitioner before the School Tribunal or the illegalities committed by the School Tribunal based on falsehood or false representation made by the petitioner before the said authorities. This aspect need not be gone into at this stage, as this Court has to deal with a very limited scope of the matter, whether there is compliance of the order dated 12th November, 2009 or not? And a short answer to the same is, there is no compliance of the order dated 12th November, 2009. 8) The cloud that has been created to interpret the order, as stated earlier, is not explicit. There is no cloud or apparent ambiguity in the order. That apart, additional care indeed is taken as the Education officer has on oath informed that, to the post, on which the petitioner was employed, the salary applicable as per the Vth Pay Commission, could be in the scale of Rs.3050-4900 and Rs.5200-20200 (as per VIth Pay Commission). The management cannot claim unawareness of such applicability of pay scale to the petitioner, as the management is bound in law to make such payment to other employees, which naturally it has been making payment. Consequently, ignorance about the status and pay 5 CP No.180/2010 of the petitioner, as pleaded by way of affidavit, is unacceptable. 9) It is a matter of record, the order dated 12th November, 2009 is not adhered to in its letter and spirit. 10) The judgments to which, learned Counsel for the respondents/management has placed reliance, does not answer to the questions involved. However, they deal with other situations wherein, the aggrieved party had an alternate remedy to seek redressal. In the present case, it is flouting/disobedience of the court’s directions/order dated 12th November, 2009, which is paramount aspect. 11) Considering these details, the effect of the affidavit in reply will not defuse the order dated 12th November, 2009 or will deflate its effect to be complied with by the respondent/management. Economic condition of respondents, to which repeatedly reference is given, has no bearing as the management has to act upon and discharge its obligation in accordance with law or the system. The management also cannot bank upon to so-called lapses/latches and mess created by the petitioner or his brother by inflating strength of students 6 CP No.180/2010 in the school or by creating false record to get the petitioner appointed as a clerk in the School. These aspects, at this stage, need not be again dissected, as this is beyond the scope of petition. 12) In AIR 2005 SC 4419 ( State of Bihar and Ors. Vs.Rajendra Singh and another) the Hon'ble Supreme Court has observed, "while dealing with application for contempt, the court is really concerned with the question, whether the earlier decision, which has received its finality had been complied or not. It would not be permissible for the court to examine the correctness of the earlier decision, which had not been assailed by taking different view than what was taken in the earlier decision. The court, exercising contempt jurisdiction cannot take upon itself power to decide the original proceeding in the manner not dealt with by the court passing the judgment or order. If any party concerned is aggrieved by the order, which in his opinion, is wrong or against the truth or its implementation is neither practicable nor feasible and viable, it should always approach to the court that passed the order or invoke the jurisdiction of the Appellate Court. Rightness or wrongness of the order cannot be urged in contempt proceedings.” 7 CP No.180/2010 13) Taking stock of the situation, I find there is clear breach and contempt of the order dated 12th November, 2009 on the part of the respondent nos.1 to 3/management. The time, that has been granted by this Court, as said by Mr. Bokharikar, also needs consideration. Consequently, I hold the respondent nos.1 to 3/management in contempt in non-compliance of the order referred above while admitting the writ petition No.2535/2009 dated 12th November, 2009. The respondents in their affidavit have tendered unconditional apology. This aspect also needs consideration. 14) In the result, holding the respondent nos.1 to 3/management guilty in contempt, I direct the respondents Nos.1 to 3/management to undergo simple imprisonment for a period of 30 days (Thirty days) and also to pay fine of Rs. 5,000/- (Rupees five thousand) each. 15) This order of sentence and fine shall not be implemented, if the Respondent Nos.1 to 3/management pay the arrears, payable to the petitioner, by calculating the same, as is applicable for an employee to draw the salary as per the Vth Pay Commission, up to 30th November, 2011. The amount be deposited in this Court peremptorily up to 30th November, 2011. Failure to 8 CP No.180/2010 do so, naturally, the order of sentence and fine will start operating against the Respondent Nos.1 to 3/management. 16) Rule made absolute in the aforesaid terms. sd/- ( K.U.CHANDIWAL ) JUDGE bdv/