1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 2447 OF 2009 Sudhakar Pandit Patil ...Petitioner Versus The State of Maharashtra and others ...Respondents ..... Mr. V.D. Sapkal, advocate for the petitioner Ms. A.V. Gondhalekar, A.G.P. for respondent Nos.1 and 2 Mr. P.M. Shah, senior counsel h/f Mr. G.K. Thigle, for respondent No.3 Mr. Umakant Patil h/f Mr. A.S. Bayas, for respondent No.4 ..... CORAM: A.M. KHANWILKAR & S.S. SHINDE, JJ. DATED: 18TH FEBRUARY, 2010 PER COURT:- 1 In terms of the order dated 10.2.2010, respondent No.3 has filed affidavit tendering unconditional apology. The same reads thus;- “AFFIDAVIT ON BEHALF OF RESPONDENT NO.3 I, Narayan s/o Tatuji Rane, Respondent No.3 in the above Writ petition, do hereby state on solemn affirmation as under: 2 1. I, do hereby reiterate and endorse an unconditional apology as recorded in the order of the Hon’ble High Court dated 16th December 2009. As per my instruction, the said apology was tendered through my Advocate. 2. I have always respected the majesty of law. I had no intention to disobey the orders of the Hon’ble Court, while passing orders dated 09.09.2008 and 10.10.2008. Hence, this affidavit. PLACE: AURANGABAD sd/- DATE: 16/02/2010 DEPONENT Narayan s/o Tatuji Rane” 2 Counsel for the petitioner however, submits that this is not an unconditional apology and in any case the court should not accept the same. To buttress the submission, reliance is placed on the decision of the Apex Court in the case of T.N. Godavarman Thirumulpad Vs. Ashok Khot and Anr, reported in AIR 2006 SC 2007 and in particular para 30, 31 and 32, which read thus:- “30. Learned counsel appearing for contemnor Nos. 1 3 and 2 stated that they have tendered unconditional apology which should be accepted. 31. Apology is an act of contrition. Unless apology is offered at the earlier opportunity and in good grace, the apology is shorn of penitence and hence it is liable to be rejected. If the apology is offered at the time when the contemnor finds that the court is going to impose punishment it ceases to be an apology and becomes an act of a cringing coward. 31. Apology is not a weapon of defence to purge the guilty of their offence, nor it is intend to operate as universal panacea, but it is intended to be evidence of real contriteness. As was noted in L.D. Jaikwal Vs. State of Uttar Pradesh (AIR 1984 SC 1374) “We are sorry to say we cannot subscribe to the ‘slap- say sorry – and forget’ school of thought in administration of contempt jurisprudence. Saying ‘sorry’ does not make the slapper taken the slap smart less upon the said hypocritical word being uttered. Apology shall not be paper apology and expression of sorrow should come from the heart and not from the pen. For it is one thing to ‘say’ sorry – it is another to ‘feel’ sorry.” 3 In the present case, however, it is noticed that so far no formal show cause notice has been issued to respondent No.3 as to why the contempt action should not be initiated against him. Indeed, respondent No.3 filed affidavit before this court dated 4.7.2009 and has explained the circumstances in which he made noting on 9.9.2008 4 and 10.10.2008 respectively. In para 11 of the affidavit it is stated that he had acted bonafide and in fact, the policy decision regarding extension of protection to the Government servants appointed after 15.6.1995 was pending before the State Cabinet at the relevant time and is even presently pending for consideration of the State Government for which the Government of Maharashtra has appointed the Group of Ministers to make recommendation in that regard. Significantly, in para 12 of the same affidavit dated 4.7.2009, the said respondent has stated that he has highest regards for the judiciary and judicial orders and he had not even the remotest intention of flouting any order passed by this Court. Besides the said statement made on affidavit, as is noted in the order dated 16.12.2009, counsel appearing for respondent No.3, on instructions, had tendered unconditional apology to the Court. That position was reiterated before us on 10.2.2010. However, we gave liberty to respondent No.3 to place that position on affidavit. In deference to the said observation, respondent No.3 has now filed affidavit as referred to earlier. Taking over all view of the matter, we are of the considered opinion that unconditional apology tendered by respondent No.3 should be accepted. That however, does not obliterate the observations and finding noted by us in order dated 10.2.2010. We hope and trust that the Respondent No.3 would act with circumspection when dealing with issues which are sub- judice or governed by Court orders. 5 4 The next question that needs to be addressed is in the context of the show cause notice issued to respondent No.4 as to why contempt action should not be initiated against him in terms of order dated 29.4.2009. The respondent No.4 has filed a detailed affidavit dated 17.7.2009 and recent affidavit dated 18.1.2010 explaining his predicament which resulted in submitting the representation directly to respondent No.3 on 9.9.2008. Besides explaining the said circumstances, respondent No.4 has offered unconditional apology on affidavit. In the circumstances, we do not think it appropriate to precipitate the matter even against respondent No.4. At the same time, we would direct the State of Maharashtra and its authorities to initiate appropriate action against respondent No.4 considering the provisions of Maharashtra Scheduled Castes, Scheduled Tribes, De- Notified Tribes (Vimukta Jatis); Nomadic Tribes, Other Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000, forthwith and take the same to its logical end. Besides, the State of Maharashtra may consider for initiating appropriate action against respondent No.4, as may be advised in relation to the statement made by him in his communication dated 9.9.2008 directly addressed to respondent No.3 to the effect that on the given date his matter was pending before the Apex Court and till the decision of the Apex Court, no action be initiated against him. The State shall initiate the action against respondent No.4 as aforesaid not later then six weeks from today. 6 5 It is made clear that this order is not an express of opinion either way on the merits of the stand taken by respondent No.4. 6 Petition deserves to be disposed of on the above terms as the reliefs claimed do not survive for consideration. According to the counsel for the petitioner the court may have to consider reliefs C-1 and C-2 to set aside orders passed by Respondent No.3 dated 9.9.2008 and 10.10.2008 respectively. However, it is fairly accepted by the official Respondents that the said orders have merged with the termination order dated 11.11.2009 whereby the services of Respondent No.4 have been terminated. Hence, petition is disposed of on the above terms. *****