IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No 4565 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE M.H.KADRI and Hon'ble MR.JUSTICE A.L.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- C J N Z MADRESA TRUST Versus DARA D JOKHI -------------------------------------------------------------- Appearance: Mr.P.M.Thakker, Senior Counsel, with MR ZUBIN F BHARDA for Petitioner MR NM KAPADIA for Respondent No. 1 and 5 Mr.Dara K. Deboo, respondent No.6, party-in-person Mr.Bharat B. Naik, learned counsel as Amicus-Curiae -------------------------------------------------------------- CORAM : MR.JUSTICE M.H.KADRI and MR.JUSTICE A.L.DAVE Date of decision: 26_/12/2000 (Per : MR.JUSTICE M.H.KADRI) C.A.V. Judgment: (Per: Kadri, J.) 1. The question involved in this application is whether, by filing applications for transfer of proceeding pending in the Secondary Education Tribunal ('Tribunal' for short) and making scandalous and contumacious allegations against the Tribunal, respondents Nos.1, 5 and 6 have lowered the authority of the Tribunal and have caused interference in discharge of judicial function and, by making such baseless allegations, have obstructed administration of justice and thereby committed criminal conduct as defined in Section 2(c) of the Contempt of Courts Act, 1971, (hereinafter to be referred to as 'the Act') . To decide the above question, it would be necessary to refer to the background in which the above applications came to be filed by respondents Nos.1, 5 and 6 in the Tribunal. All the parties to this application have produced voluminous documentary evidence relating to various proceedings, which shall have to be considered while deciding the present application. We are conscious of the fact that this judgment will become lengthy if we discuss various proceedings initiated by two rival groups who claim to be legally appointed trustees. To decide the question involved in this application, it has become essential to refer to the background and modus-operandi adopted by the respondents Nos.1, 5 and 6 to achieve their desired objects which ultimately culminated into filing scandalous and contumacious applications for transfer before the Tribunal. 2. A Trust, under the name of Sir Cowasjee Jehangir Navsari Zarthosti Madressa Trust (hereinafter referred to as 'the Trust' for the sake of brevity) was created by trust deed dated January 14, 1880, whose main object was to provide education to children by establishing a Madressa High School at Navsari. Besides Madressa, some other institutions, like Arts, Science, Commerce and Law colleges were also established. Respondent No.1, Mr. Dara D. Jokhi, was appointed as Principal of Madressa High School from July 9, 1990. The Board of Trustees and the Managing Committee found out that respondent No.1, with the connivance of Mr.Aspi Fanibanda, who was also one of the Trustees, had mismanaged the funds of the Trust and had clearly flouted orders and directions of the Managing Committee. From the audit report of the Auditors, it was also revealed that respondent No.1 had collected some amounts from the students and had misappropriated them for his personal benefit. The Managing Committee and Governing Body of the Trust, by resolution dated December 13, 1996, had suspended respondent No.1 as the Principal of the High School and directed him to hand over charge of Principal to respondent No.2, Mr. R.D. Naik, who was simultaneously appointed as In-charge Principal by the Managing Committee of the Trust. Mr. R.D. Naik was at the relevant time working as a teacher in the Madressa High School. The said order of suspension was duly served on respondent No.1, Mr. Dara D. Jokhi, on the same day around 12.30 hrs. It is the case of the petitioners that, after the order of suspension was served on respondent No.1, charge of the post of Principal of Madressa High School was taken over by respondent No.2, Mr.R.D. Naik. 3. On December 16, 1996, respondent No.1 entered the school premises by disobeying suspension order with a mob of about 50 people and threatened respondent No.2 with dire consequences and forcibly took back charge as Principal from respondent No.2. It is alleged that due to this high-handed attitude of respondent No.1, Mr. Dara D. Jokhi, the Madressa, through its Secretary and Manager Mr. F.J. Garda (petitioner herein) filed Application No.749 of 1996 before the Gujarat Secondary Education Tribunal, at Ahmedabad, praying for a direction that respondent No.1 should obey the suspension order. The Trust also prayed for interim relief restraining respondent No.1 from entering the school premises and discharging duties as Principal and further restraining respondent No.1 from obstructing respondent No.2 from discharging his duties as Incharge Principal of the school. Respondent No.1, Mr. Dara D. Jokhi, had appeared on caveat before the Tribunal. The Tribunal, after hearing respondent No.1, who was supported by respondent No.4, Mr. Aspi Fanibanda, passed an interim order on December 20, 1996, restraining respondent No.1 from entering the school premises and further restraining respondent No.1 from obstructing respondent No.2 from discharging his duties as Incharge Principal, till the application was heard and finally disposed of. 4. Respondent No.5, Mr. M.L. Desai, and one Mr.Iqbal Hussain Qureshi filed Application No.777 of 1996 in the Tribunal challenging the action of the Management appointing Mr. R.D. Naik as Incharge Principal ignoring their seniority. Application No.778 of 1996 came to be filed by respondent No.1 challenging the order of suspension and also praying, by way of interim relief, to restrain the respondents, namely, Trustees and Managing Committee, from implementing the order of suspension. Respondent No.5 also filed an application to be joined as party-respondent No.5 in Application No.749 of 1996 as he was affected by the aforesaid order of appointment of respondent No.2 as Incharge Principal bypassing his claim of seniority and claimed that he should have been appointed as Incharge Principal. The Tribunal allowed the application filed by respondent No.5 and he was impleaded as respondent No.5 in main Application No.749 of 1996. The averments made in the present application disclose that, after the interim relief was granted on December 20,1996, the parties had obtained many adjournments by mutual consent and neither party to the said proceedings had raised any objections. The term of Members of the Managing Committee and the Members of the Trust was to expire in the end of 1997 and respondent No.1, by taking advantage of the situation and in the guise of entering into a compromise, kept on prolonging the hearing of Application for interim relief filed in Application No.749 of 1996 and, in between, in collusion with respondent No.6, Mr. Dara K. Deboo, who was an outsider to the Trust and Managing Committee and who was not in any way connected with the Trust, kept on approaching the Committee Members at Bombay for arriving at a compromise. It is alleged that respondent No.6, Mr. Dara k. Deboo, offered himself to act as a mediator and in collusion with other trustees got an advertisement issued declaring election of the Madressa which was absolutely in violation of the direction issued by the Joint Charity Commissioner, Vadodara, in Applications Nos.76 of 1996 and 77 of 1996 filed by respondent No.4, wherein, the Joint Charity Commissioner had directed that election of the Members and Trustees of the Trust should be conducted by the duly registered subscribers of the Trust and that too after following the procedure prescribed under the provisions of the trust deed. It is further stated that respondent No.4, Mr. Aspi Fanibanda, issued advertisements on December 7, 1997, that election of the Trust will be held at Bombay and Navsari on January 4, 1998, which was in clear contravention of the provisions of the Trust Deed and the direction issued by the Joint Charity Commissioner, Vadodara, in Applications Nos.76 of 1996 and 77 of 1996. Thereafter, the Managing Committee, by following the directions of the Joint Charity Commissioner and as per the provisions of the Trust deed, had issued advertisement on December 14, 1997 declaring the schedule of election and also informed the donors and subscribers in the very same advertisement that the advertisements issued by respondent No.4, Mr. Aspi Fanibanda, published in the daily newspaper on 6th and 7th December, 1997, were in clear contravention of the provisions of the trust deed and directions issued by the Joint Charity Commissioner, Vadodara, in the aforestated applications and, therefore, the same should be ignored. Respondent No.6, Mr. Dara K. Deboo, had tried to fill in the form pursuant to the advertisement issued by the Managing Committee. But, he was not permitted to fill the form for the post of trustee because he was not a subscriber in the books of account of the trust, and he was not a permanent resident of Bombay and his name was not included in the electoral roll. 5. The averments in the applications further indicate that the respondent No.6 even though not qualified to become a trustee of the Trust, wanted to become Chairman-cum-Trustee of the Trust by resorting to illegal methods. Respondent No.6 in collusion with respondent No.4, Mr. Aspi Fanibanda, and respondent No.1, Mr. Dara D. Jokhi, illegally held election in clear contravention of the order passed by the Joint Charity Commissioner, Vadodara, in Applications no.76 of 1996 and 77 of 1996 and got himself elected as Trustee and proclaimed himself as Chairman of the Trust. It transpires from the record of the present application that on January 4, 1998, i.e. on the day of the so-called election, respondent No.4, Mr.Aspi Fanibanda, and respondent No.6, Mr. Dara K. Deboo, by assuming themselves to be elected as Members of the Managing Committee in the so-called election, cancelled the suspension order dated December 13, 1996, passed by the erstwhile Managing Committee of the Trust despite there being an order of the Tribunal restraining respondent No.1, Mr. Dara D. Jokhi, from discharging his duties as Principal and from entering the school premises, and also obstructing respondent No.2 from discharging his duties as Incharge Principal. Respondent No.1, once again, on the basis of the letter of revocation, dated January 4, 1998, alleged to have been made in collusion with respondents Nos, 1, 4 and 6, entered the school premises with his supporters and by threatening respondent No.2, Mr. R.D. Naik, took over the charge and started functioning as Principal of the Madressa High School. The applicant-Trust, thereafter, filed application Exh.34 in Application No.749 of 1996 before the Tribunal for breach of the order of injunction dated December 20, 1996. The Tribunal had called upon respondents nos. 1, 4 and 6 to make submission on the question of breach of order of injunction pursuant to the interim order of the Tribunal dated December 20, 1996. 6. The record further reveals that respondent No.6, Dara K. Deboo, who was never a party in any proceedings before the Tribunal, filed application on January 19, 1998, informing the Tribunal that the Trust had relieved its advocate by letter dated January 12, 1998 and had engaged advocate Mr. V.H. Desai as advocate of the Trust. It was alleged in the application that the Tribunal was under the influence and pressure of the Senior Advocate of Gujarat High Court who had appeared in the matter. It was further alleged that, because of the influence and pressure of the Senior Advocate, the new advocate of the Trust, Mr. V.H. Desai, was prevented from making submission. It was also alleged that, on earlier occasion, the Tribunal had insisted that the applicant-Trust should settle the matter out of Court, but, because of the change of advocate, the Tribunal had changed its opinion and, without looking at the documents, the Tribunal had taken unnecessary personal interest in the matter. Respondent No.6 further alleged in his application that the Tribunal was taking unnecessary personal interest in the matter and, therefore, he was of the definite conclusion that he will not get justice from this Tribunal and, when another Tribunal was available, the said application can be transferred from this Tribunal. Since the application was contested tooth and nail by the original applicant stating that the application for transfer of the case was nothing but browbeating and scandalising of the Court by a person not a party to the application, a statement was made by respondent No.6, Mr. Dara K. Deboo, that he will consider withdrawal of the said transfer application on the next date of hearing. 7. On the next date of hearing, i.e. on January 22, 1998, respondent No.1, Mr. Dara D. Jokhi, filed application Exh.41 in Application No.749 of 1996 making an allegation that when school management had filed the application for interim relief in the main application in December 1996, Senior Advocate, Mr. B.P. Tanna, had remained present at the time of hearing and, under his pressure, the Tribunal had passed interim order on December 20, 1996 directing him not to enter into the school premises. It was further alleged by respondent No.1 in his application that he had approached the High Court of Gujarat by filing a writ petition challenging provision of Section 36 of the Secondary Education Act and, in the said writ petition, by order dated July 10, 1997, the High Court had directed the Tribunal to dispose of the matter expeditiously, but, thereafter, at no point of time, any note was placed on the Board about High Court's order and therefore, he had a doubt that he would not get any justice from the Tribunal. It was further alleged by respondent No.1 in the application Exh.41 that Incharge Principal, Mr. R.D. Naik (respondent No.2) stays at Navsari and his advocate Shri Arunbhai D. Oza is prosecuting a matter about insufficiency of staff and facilities to be provided to the Members of the Tribunal by filing a public interest litigation in the High Court and, therefore, the Tribunal was acting according to the say of Shri Arunbhai Oza. 8. On the same day, i.e. on January 22, 1998, respondent No.5, Mr. M.L.Desai, filed application Exh.42, in Application No.777 of 1997, filed by him in the Tribunal, by making allegation that Shri R.D. Naik (respondent No.2) often said that, "he (Desai) was not going to get justice in his case and further that his advocate was having no personal relation with the Member of the Tribunal and, therefore, it appears that he was not likely to get justice from the Tribunal". It transpires from the order of the Tribunal that application Exh.44 was filed by respondent No.6, Mr. Dara K. Deboo, for withdrawal of application of transfer of the case filed on January 19, 1998. Applications Exh.58 and Exh.59 were also filed by respondent No.6, Mr. Dara K. Deboo, on April 28, 1998, inter alia, praying to allow him to lead evidence and permitting to cross examine Mr. F.J. Garda. All the said applications, being Exh.39, 40, 44, 45, 46 , 58, and 59 filed in Applications nos.749 of 1996, 777 of 1996 and 778 of 1996, were consolidated and the Tribunal, after hearing the parties, and, after perusing documents, by order dated July 7, 1998, arrived at the following conclusions: (i) Respondent No.6, Mr. Dara K. Deboo, was not newly appointed Chairman of the Trust as change report filed by him was not accepted by Assistant Charity Commissioner, Surat. (ii) The election, wherein, respondent No.6, Mr. Dara K. Deboo, is alleged to have been elected as Trustee or Member of the Managing Committee, was in clear contravention of the Rules framed under the trust deed and, therefore, respondent No.6 had no locus standi and was a nonentity in the Trust and he had no right to file the application to withdraw the main application No.749 of 1996. (iii) Allegations made by respondents Nos. 1, 5 and 6 against the Tribunal in their application for transfer of the case from the Tribunal to another Tribunal, were false and frivolous and were made with ulterior motive for seeking transfer of the case so as to scandalise the Tribunal and to cause obstruction in discharge of its judicial function. (iv) The order of revocation of suspension and restoring suspended employee, Mr. Dara D. Jokhi, by order of Mr. Dara K. Deboo, who was not having any authority of law, amounts to breach of injunction issued by the Tribunal on December 20, 1996. The allegations made in the application for transfer by respondents Nos. 1, 5 and 6 were baseless and factually incorrect and the applications were filed with a view to browbeating and scandalising the Tribunal by making contumacious allegations with a view to seek transfer of the case. (v) The action of respondents nos. 1, 5 and 6 in committing breach of injunction, filing of caveats, moving application for transfer of the case, preventing the Court from hearing the application for breach of injunction and making frivolous allegations against the Tribunal, clearly amounted to abuse of process of the Court. The Tribunal in exercise of powers vested in it under Section 151 of the Code of Civil Procedure, directed the parties to maintain status quo as prevalent prior to January 4, 1998, and to act according to the injunction order of the Tribunal dated December 20, 1996 till further orders. At the end, the Tribunal dismissed the application Exh.39 for withdrawal of the main application and also rejected Applications Exh.58 and Exh.59 filed by Mr. Dara K. Deboo for permitting him to lead evidence and cross examine Mr. F.J. Garda. The application for withdrawal of transfer of case Exh.44 filed by Mr. Dara K. Deboo was allowed. Applications filed by respondent No.1, Mr. Dara D. Jokhi, and by respondent No.5, Mr. M.L. Desai, for transfer of case were rejected. However, the Tribunal ordered that applications nos.749 of 1996, 777 of 1996 and 778 of 1996 be placed before another Tribunal for hearing. 9. After the above order was passed, the applicant-Trust, through its Honorary Secretary and Manager, Mr. F.J. Garda, filed Misc. Civil Application No.1487 of 1998 in this Court under the provisions of Contempt of Court Act, 1971. When the said application was placed for admission/hearing, the Court (Coram:S.D. Dave & C.K. Buch, JJ.) passed the following order on August 13, 1998. "Notice to the respondents returnable on August 31, 1998" Pursuant to the above order, the Registry of this Court sent notice to the respondents under Rule 12 framed under Contempt of Court (Gujarat High Court) Rules, 1984. read with Form I, which is as under: "Whereas upon reading the petition of the abovenamed petitioner(s) to this High Court of Gujarat at Ahmedabad that you have been guilty of the contempt of Court for having disobeyed the order of the Honourable Secondary Education Tribunal at Ahmedabad in Application No.749 of 1996, ordered Notice to issue show cause why you should not be committed to prison or otherwise penalised or dealt with for your above contumacious conduct. Notice is hereby given calling upon you to appear in person or by an Advocate, duly authorised and instructed if the Court has so ordered, before this Court on 31st day of August 1998 at 11.00 AM peremptorily to show cause why you should not be committed to prison or otherwise penalised or dealt with for the acts of or conduct stated above and that you shall continue to attend the Court on all days thereafter to which the case against you stands adjourned and until the final orders are passed on the charge against you." Thereafter, Misc. Civil Application No.1487 of 1998 was placed for admission/hearing before the Court (Coram: R.Balia & A.R. Dave, JJ.) on July 2, 1999, the Court passed the following order: "After hearing for some time it appears to us that the petition contains allegations both relating to wilful disobedience of an injunction order amounting to civil contempt against some of the respondents as well as charges of criminal contempt relating to obstructing the course of proceedings and administration of justice by some of the respondents. It is appropriate that address of civil contempt and criminal contempt are segregated. Therefore, learned counsel for the applicant is directed to segregate the assertions made in respect of civil contempt and criminal contempt and file two or more separate fresh petitions as are deemed appropriate to give true picture. The proceedings taken thus far in this application shall be considered to be proceedings in the so segregated applications filed as far as they relate to such proceedings independently and these proceedings shall be deemed to be in continuation of this application. Copies of separate applications shall be delivered to respective learned counsel for the respondents before next date of hearing. S.O. to 12.7.1999 as prayed by learned counsel for the applicant." After the order dated July 2, 1999, the proceedings of criminal contempt were segregated and proceeding of criminal contempt came to be registered as Criminal Misc. Application No.4565 of 1999. The record of Civil Misc. Application No.1487 of 1998 indicates that the Court (Coram: B.C. Patel & K.M. Mehta, JJ.) by order dated December 9, 1999, appointed learned advocate Mr. Bharat B Naik to appear as Amicus Curiae to assist the Court in the proceedings of criminal contempt being Misc. Criminal Application No.4565 of 1999. On December 21, 1999, the Court (Coram: B.C. Patel & K.M. Mehta, JJ.) passed the following order: "A Division Bench of this Court (Coram: S.D. Dave & C.K.Buch, JJ.) (took) cognizance of the matter on 13.8.1998 [MCA No. 1487/98]. Notice was made returnable. However, for one or the other reason, the notices were not served and the matter was adjourned from time to time. It seems that after all the parties appeared before the Court on 2.7.1999, another Division Bench of this Court (Coram: Rajesh Balia & A.R. Dave, JJ.) segregated the proceedings, viz. the Civil contempt and criminal contempt. The Court specifically observed as under :- "The proceedings taken thus far in this application shall be considered to be proceedings in the so segregated applications filed as far as they relate to such proceedings independently and these proceedings shall be deemed to be in continuation of this application. Thus, the Court took cognizance much earlier, that is on 13.8.1998." The following charge was framed by the Court (Coram: B.C. Patel & K.M. Mehta, JJ.) on December 9, 1999, against respondent No. 1 Dara D Jokhi:- "You, Dara D. Jokhi, submitted Application Exh. 41 in Application 749 of 1996 pending in the Gujarat Secondary Education Tribunal, wherein you have made allegations that: When the school management filed application in December 1996, Senior Advocate, Shri Bhaskarbhai Tanna, remained present and under his pressure the Tribunal passed interim order dated 20.12.1996 directing you not to enter into the school premises. You have further stated that you have approached the High Court of Gujarat by challenging the provision of Section 36 of the Secondary Education Act and in the said writ petition by order dated 10.7.1997 the High Court has directed to dispose of the matter, but thereafter at no point of time, any note was placed on the Board about the High Court's order and you have doubt that you would not get any justice in the hands of the Tribunal. You have further stated in your said application that Incharge Principal Shri Naik stays at Navsari and his advocate Shri Arunbhai D. Oza is prosecuting the matter about insufficiency of staff and facilities to be provided to the Members of the Tribunal inthe High Court and, therefore, the Member of the Tribunal is acting according to the say of the advocate Shri Arunbhai D. Oza only. Your abovereferred allegations are such which scandalize and lower the authority of the Secondary Education Tribunal and also prejudices the due course of judicial proceedings pending before the Tribunal and also interfere and obstructs administration of justice." The following charge was framed