1 cp440.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CONTEMPT PETITION NO. 440 OF 2010 IN WRIT PETITION NO.6534 OF 2007 Yogaji s/o Ramchandra Mekale, Age: 55 years, Occ: Service as Mustering Assistant, R/o. Mujre Sangvi, Post Umraj, Tq. Loha, Dist. Nanded. ...PETITIONER VERSUS The State of Maharashtra, Through Commissioner, Aurangabad Division, Shri. Munde and others. ...RESPONDENTS ... Mr. A.H. Kasliwal, Advocate holding for Mrs. Netrali H. Gangwal Jain, Advocate for petitioner. Mr. D.V. Tele, A.G.P. for State. Mr. G.R. Ingole Patil, Advocate for respondent No.3. ... CORAM: S.S. SHINDE, J. DATE : 1ST AUGUST, 2011 PER COURT : This Contempt Petition alleges disobedience of the order passed by the Division 2 cp440.10 Bench of this Court in Writ Petition No. 6534 of 2007 on 21-02-2008. Learned Division Bench granted interim relief as prayed in the petition thereby directing the respondents that the petitioner should be continued as a Mustering Assistant with respondent No.3 till the time he gets regular appointment by absorption. 2. According to the petitioner, said order was not complied with by respondent No.3. Therefore, the petitioner moved Writ Petition for hearing before the Division Bench and on 12-08-2009 the Division Bench issued notice to respondent Nos. 2 and 3 as to why an action for committing contempt of the order passed by this Court should not be taken against them. It was further observed in the said order that, in case the order of Division Bench is not complied, this Court would be constrained to take action against all the incumbents who were holding the office of respondent Nos. 2 and 3 between 21-02-2008 till 12-08-2009. 3 cp440.10 3. On perusal of the compilation of the writ petition and in particular Page Nos. 27 and 28, it appears that again matter was listed before the Division Bench on 23-09-2009, when the Division Bench in Para.2 of the said order observed that, the petitioner is permitted to resume duties in pursuance to the order passed by this Court dated 12-08-2009. The question regarding payment of salary to the petitioner from the date on which interim relief was passed by this Court i.e. 21-02-2008 till the date on which he has been actually permitted to join in pursuance to the order dated 12-08-2009 will be considered at the final hearing of the petition. 4. Counsel for the petitioner is not able to inform this Court that whether Writ Petition No. 6534 of 2007 is pending or it is disposed of. It is the contention of the Counsel for the petitioner that, this contempt petition is filed seeking the directions to punish respondent Nos. 2 4 cp440.10 and 3 for breach of the order passed by the Division Bench on 21-02-2008. According to learned Counsel for the petitioner, from the date of passing of the order of interim relief, till the petitioner was not reinstated in service, the respondents have committed breach of the order passed by the Division Bench and therefore, they are required to be punished under the provisions of the Contempt of Courts Act. 5. On the other hand, learned Counsel for respondent No.3 invited my attention to the averments in the affidavit in reply and submitted that, the petitioner is already appointed and reinstated in service as per directions of the Division Bench. Therefore, this Court may drop the contempt proceedings. 6. I have given thoughtful consideration to the submissions of the learned Counsel for the petitioner and learned A.G.P. for the State and learned Counsel for respondent No.3. 5 cp440.10 7. It is not in dispute that the petitioner is reinstated in the service. The question regarding the period for which he was not appointed from the date on which the interim relief was granted i.e. 21-02-2008 till 12-08-2009 has taken care of, by the order of the Division Bench on 23-09-2009. Therefore, that part is concerned, the Division Bench has observed that, so far salary for the period of 21-02-2008 till 12-08-2009 is concerned, that question will be decided at the time of final hearing of the said writ petition. 8. The contention of the Counsel for the petitioner that, from 21-02-2008 till 12-08-2009 in spite of specific directions by the Division Bench, respondent Nos. 2 and 3 have not obeyed the order and they have committed the contempt, is required to be examined in the light of affidavit in reply filed by the respondent No.3. It is stated in the said affidavit in reply that, the 6 cp440.10 petitioner has already resumed the duties on 14-08-2009. It is true that, there is lapse on the part of respondent Nos. 2 and 3 in complying the order of the Division Bench from 21-02-2008 till 12-08-2009. The respondents have tendered unconditional apology in Para-5 of the affidavit in reply. It is true that, in this case though there was direction by the Division Bench to reinstate the petitioner and said direction was given on 21-02-2008, respondent Nos. 2 and 3 have not reinstated the petitioner till 12-08-2009. However, from reading Para-2 of the order passed by the Division Bench, it appears that no any particular time was prescribed. However, the parties to the petition should have understood the same order means the order which would take effect immediately from 21-02-2008, however, main question is that whether the act of respondent Nos. 2 and 3 can be construed as a willful disobedience of the order passed by the Division Bench. 7 cp440.10 9. Since respondent Nos. 2 and 3 have reinstated the petitioner on 14-08-2009, in my opinion, in a given case, there is a disobedience but it is difficult to hold that there is willful disobedience of the order passed by the Division Bench. The Hon'ble Supreme Court in the case of Suresh Chandra Poddar vs. Dhani Ram and others, reported in (2002) 1 S.C.C. 766 taken a view that even if the order is complied after notices are issued in the contempt proceedings, the Court seizes with the contempt jurisdiction should adjudicate the said contempt proceedings with judicial grace and magnanimity. 10. In this views of the matter, in my opinion, in the light of apology tendered by respondent Nos. 3 in Para-5 of the affidavit in reply, this contempt petition is disposed of. Notice stands discharged. . However, it is made clear that so far salary of the petitioner from 21-02-2008 till 8 cp440.10 12-08-2009 is concerned, as already observed by the Division Bench in its order dated 23-09-2009, same will be decided at the time of final hearing of the writ petition. [S.S. SHINDE, J.] sut/AUG11