1 CP NO.298/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CONTEMPT PETITION NO. 298 OF 2011 ,In WP/4611/2011 Smt. Anita d/o Bhaskarrao Gaware, Age 38 years, Occ. Service as Steno-Typist in MAHAGENCO Ltd., Working under the respondent R/o. Shakti Kunj Vasahat, Parali Vaijnath, Dist. Beed. ...PETITIONER VERSUS Shri Kishor Nagdeve, Chief General Manager, Thermal Power Station, Parali Vaijnath, Dist. Beed, Being an appointing and competent authority. ...RESPONDENT ... Advocate for Petitioners :Mr.Deshpande Ajay S. Advocate for Respondents : Mr. R.P.Powar. ... CORAM : K.U. CHANDIWAL, J. Dated: November 29, 2011 ... PER COURT :- 1. Heard finally. 2. The petitioner was in employment with the respondent. The contempt petition is 2 CP NO.298/2011 against the Chief General Manager/ Chief Engineer of the Thermal Power Station, Parali Vaijnath. 3. A show cause notice was issued to the petitioner. It was stayed in W.P.No.4611/2011 as under: " pending hearing and final disposal of this petition, the respondent may kindly be directed not to proceed with the impugned show cause notice dated 16.3.2011 or to take adverse action against the petitioner". This show cause notice was issued on the petitioner on account of her conviction recorded by the learned Judicial Magistrate, First Class, 16th Court, Aurangabad, in RCC No.1355/2004, dated 18/2/2011. She had challenged the conviction in RCA No.48/2011 and the learned Sessions Judge suspended the order of conviction, by an order dated 3rd March, 2011. 4. The petitioner felt that since the order of conviction was suspended by the appellate Court, no action could have been taken against her. Inspite of above situation, show cause notice was issued to her, irrespective of pointing that the order of conviction has been stayed by the Sessions Court at Aurangabad, and, therefore, she had approached Labour Court by filing Complaint (ULP) No.36/2011. During pendency of the proceedings, the petitioner claims, she was protected by the Labour Court 3 CP NO.298/2011 which order was extended for a period of four weeks. Her application ultimately came to be rejected by an order dated 4th June, 2011. She had filed revision before the Industrial Court on 18.6.2011. It was, according to her, before expiry of interim protection. The learned Judge, Industrial Court proceeded to finally adjudicate the proceedings and, accordingly, the matter was extensively heard on 24th June, 2011 and the Revision (ULP) No.41/2011 stood dismissed by the Industrial Court on 24th/27th June, 2011 and, as stated earlier, challenging these orders, writ petition No.4611/2011 was moved before this Court in which the show cause notice dated 16.3.2011 was questioned. 5. These facts are even dealt with in the affidavit of Kishor Tukaram Nagdeve, the alleged contemnor, as respondent. The order of termination dated 28th June, 2011, was allegedly tried to be served on two known addresses of the petitioner for which the learned Counsel for respondent has tendered before me two envelopes showing addresses of the petitioner as is recorded in the office of the respondent. The respondent also submits, in addition thereto, the termination notice was pasted at the entrance of her official residence/quarters at Parali Vaijnath. 4 CP NO.298/2011 6. Mr. Powar, learned Counsel for the respondent reiterates, that the order of termination dated 28th June, 2011, has been effectively acted upon and complied with. Consequently, any order passed subsequent to such communication or termination would not have any legal binding on the respondent to comply. Learned Counsel submits that the orders of this Court dated 5th July, 2011, particularly paragraph No.3 therein, keeping the orders of termination dated 28.6.2011 in abeyance, for a period of fifteen days, would not amount to any breach of the orders or inviting any contempt on the part of the respondents. Learned Counsel submits, the affidavit of respondent on two occasions was drafted consciously at his advice and as he reads, and interprets, the termination letter dated 28th June, 2011, having been actually acted upon, there could not be compliance to the directions of this Court dated 5th July, 2011 or there could not be any breach of the orders of this Court. The respondent indicates that in his official capacity, he has terminated services of the petitioner by the afore-referred order. 7. Respondent says, he has not taken any such affirmative action after order dated 5th July, 2011 or 18th July, 2011 passed either by this Court or by the Labour Court, Aurangabad, in 5 CP NO.298/2011 Complaint (ULP) No.71/2011. 8. Learned Counsel for the petitioner submits, that the order of termination dated 28th June, 2011, being placed in abeyance by orders of this Court dated 5th July, 2011, it was an executable order; the termination should not have been given effect to at least for fifteen days. It was in the spirit of providing the petitioner appropriate remedies in law. Learned Counsel points that the learned Presiding Officer and the learned Judge, Labour Court, Aurangabad, in the light of the directions of this Court, in CA No. 7747/2011 in Writ Petition No.4611/2011, directed the parties (respondent) to maintain status quo in respect of the termination order of petitioner dated 28.6.2011 ( by order dated 18th July, 2011). He informs, the respondent was obliged to continue with the status quo order and should have allowed the petitioner to resume her services at least the orders passed by this Court on 5/7/2011. 9. There is no controversy, ultimately, the petition moved by the petitioner before the Presiding Officer and Judge, Labour Court, Aurangabad, has been terminated and the final orders are dated 8.11.2011. 6 CP NO.298/2011 10. A clarification was also sought by the petitioner from the learned Single Judge in the said writ petition and by order dated 25th Nov., 2011, the learned Single Judge did not entertain C.A.No.13284/2011, informing, the order passed in the writ petition is self-speaking. The said Civil Application was disposed in view of the fact that Writ Petition No.4611/2011 itself is disposed of. It is observed, the Court was not dealing with the contempt matters and had considered the aspects which are spelt out in the order disposing the Writ Petition and the Civil Application. 11. Learned Counsel for the respondent reiterates that since there is no contempt, there was no reason for the respondent to tender unconditional apology as is sought passingly by the learned Counsel for the petitioner. 12. The respondent has rightly canvassed that the petitioner did not ask for withdrawal of the termination order dated 28th June, 2011, which was, indeed, served upon her in the petition. The petitioner has meticulously kept his petition vague which has created a stage of confusion and passing of the orders by this Court on 5th July, 2011. However, it cannot be said the petitioner had a mindset to exploit the situation at a later stage in the event she fails in the attempt to 7 CP NO.298/2011 put the management/respondent to a piquant situation. 13. The letter of termination dated 28th June, 2011, was effectively served upon the petitioner. She knew, she was not in service, on 5th July, 2011. She did not canvass of execution of order. Keeping the termination in abeyance by order dated 5th July, 2011, would not revive the order already acted upon to allow petitioner to resume duties to dilute and nullify effect of termination. The ultimate result is the petitioner has lost the proceedings at all the levels. 14. Learned Counsel for the respondent has invited my attention to the orders of the Supreme Court wherein the Apex Court has observed that in service matters the termination order or order of suspension could not be withheld which has the result of finality in such proceedings. The comments of the Hon’ble Supreme Court, are certainly in different context. I find that the alleged non compliance of the order of this Court dated 5th July, 2011 or of the learned Presiding Officer dated 18th July, 2011, would not amount to contempt of directions issued by this Court as the order dated 28th June, 2011 was already given effect to, as highlighted in the affidavit in reply and not disputed before moving this Court 8 CP NO.298/2011 on 5th July, 2011. There was basically no challenge to the termination letter dated 28th June, 2011. There is no gaffe on respondent in not acting to the order dated 5/7/2011. 15. It cannot be accepted that the respondent had calculatedly not followed orders of this Court, and hence in contempt. Basically, petitioner was conscious in suppressing facts of effective termination, still tried to pursue that it is not served upon her. She did not specifically or otherwise challenge the termination letter. Contempt jurisdiction is to be sparingly applied. There is no challenge to majesty of Court by respondent and no attempt to willfully impound the order by any imposture. Discretionary dimension in the matter of contempt warrants evaluation of facts as a whole, conduct of parties, unfortunately, petitioner's approach does not fit to brand it a honest prosecution. The contempt petition, is dismissed. ( K.U. CHANDIWAL, J. ) ... agp/298-11cp