1 FARAD C ONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD C.P. NO. 15/2008 WITH CONTEMPT PETITION NO. 244/2009 IN WRIT PETITION NO.3093/2007 _________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _________________________________________________________ Shri M.S. Chaudhari Advocate for petitioner. Shri Hemant Surve, Advocate for respondent 3. Shri R.T. Nagargoje, Advocate for respondent no.4. ............... CORAM : K.U. CHANDIWAL, J Date : 8th March, 2010. 1 Heard respective counsel in the contempt petitions. 2 Rule. 3 The alleged contemnor in person present, identified by Mr. Survey and Mr. Nagargoje. 4 In contempt petition No. 15/2008, the petitioner alleged that the order dated 26/09/2007 passed by Division Bench of this Court in Writ Petition No. 3093/2007 directing 2 respondents no. 3 and 4 to deposit an amount of Rs.1,50,000/- on or before 17th October, 2007, is not complied with. At the material time, respondent no. 3 was the Secretary of the society whereas respondent no.4 was the Head Master of the School. 5 In the said proceeding, C.A. No. 8045/2007 was moved by respondent no.1 for permission to deposit Rs.75,000/- as his share in compliance of the order. The Head Master moved application No. 9575/2007 and by order dated 27/11/2007, respondent no.2 the Head Master has been exempted from making the payment. Consequently, the liability to make payment of balance Rs.75,000/- rests on the Secretary of the Trust. 6 In fact, the arrangement referred to above dated 26/09/2007 will be merged in the final order in Writ Petition No. 3093/2007 dated 08/04/2008. Consequently, I hold, Contempt Petition no. 15/2008 will not survive. It is accordingly disposed of. 7 Several contentions are raised by Mr. Surve including the illegal appointment of the petitioner to the post as Asstt. Teacher dated 3 01st December, 1996 as she was related to Yusuf khan Sardar Khan Pathan. Mr. Survey submitted in the affidavit in reply of Sk. Shabbir s/o Sk. Jilani dated 22nd September, 2009 that the Division Bench was ignorant of the fact that Zilla Parishad has already turned down the proposal of the contempt petitioners and others. He also submitted in the affidavit that on 10th October, 2005, the Dy. Charity Commissioner, Aurangabad has up set entire board of trustees, which was conducted clandestinely. These averments have no bearings with the issue involved, as the elongated submissions will have to be confined to the directions in Writ Petition No. 3093/2007 dated 8th April, 2008. The submissions simply warrant discounting being already dealt with by the Division Bench. It is informed, review petition is pending since 19/09/2008 and not yet heard on technical reasons. The pendency of the review petition by itself will seldom change recourse to the directions in Writ Petition No. 3093/2007. It was open for the contemnor to have got expedited the review petition to avoid the rigour arising out of the 4 directions in the above Writ Petition. Remissness needs simply to be borne by the contemnor. 8 The other submissions elaborately dealt with by Mr. Surve is, the contemnor respondent no.3 alone can not be held guilty or responsible to meet the requisition mandated in the Writ Petition, as it is the management of the Trust of entire respondent no.3 which will have to be involved so far as contempt is concerned. In order to stress his point, the learned counsel read Section 12(4) and 12(5) of ‘The Contempt of Courts Act, 1971’ which ordains as under. Section 12(4) :- Where the person found guilty of contempt of Court in respect of any undertaking given to a Court is a company, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced with the leave of the Court, by the detention in civil prison of each such person: Provided that nothing contained in this sub-section shall render any such person liable to such punishment if he proves that the contempt was committed without his 5 knowledge or that he exercised all due diligence to prevent its commission. Section 12(5):- Notwithstanding anything contained in sub-section (4), where the contempt of Court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, Manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the Court, by the detention in civil prison of such director, manager, secretary or other officer. 9 These arguments are not open to be coiled at this belated stage for the simple reason, in the Writ Petition the present respondent no. 3 appeared, vigorously participated through Mr. Surve, did not raise any objection about necessities to call all the trustees of the Board. One should not be oblivious, the other trustees are latent in charge and can not be expected to be associated with conduct of business of the Trust or daily activities thereof. It is not established the contempt has been committed with consent or connivance or is attributable to the other 6 trustees of the Trust. The petitioner does not state so. 10 It is thus obvious, the mandate in terms of Section 12(4) and Section 12(5) does not require in the fact situation for other trustees to answer the contempt. The ultimate objective of contempt jurisdiction is to uphold dignity of the Court and majesty of law. It is well settled, the jurisdiction vests to the Court in such eventuality to be sparingly invoked and punishment of imprisonment warrants only in exceptional circumstances. 11 Though Mr. Surve highlighted that by communication from the Secretary to other members of the Trust, intimation is given to meet the obligation, there is no response to it, from other trustees, to comply directions of this Court. One need not ponder to respondent’s efforts as, it is the respondent no.3 who is required to answer the contempt. 12 Taking survey of these facts, the directions of the Division Bench of this Court dated 8th April, 2008 which is reiterated herein below :- 7 “It is the primary duty of the management to pay the salary of the Teacher who has been employed. The respondent school is obviously on non grant basis. It would thus be the responsibility of the respondent – management i.e. respondent no. 3 to pay the salary of the petitioner for the period September, 2004 to 31st August, 2006. We, therefore, direct respondents to pay the aforesaid salary within six months from today. This petition is, therefore, allowed subject to payment of costs, which is quantified at Rs. 5,000/-. Rule is thus made absolute on the terms indicated above” , is not complied with in its letter and spirit. The order being against the management of which respondent no.3 was the Secretary and in charge at the material time, will have to be honoured by the respondent no.3. 13 In the result, considering all the events, the concern of the petitioner being in recovery of arrears, it is unexpected from the court to be a moot spectator of ongoing situation. I find, there is disobedience on the part of respondents no.3 and 4 to the directions of the Division Bench. However, without sending them for punishment of contempt of court, the petitions can be disposed of, by directing the 8 contemnor to remit the arrears to the petitioner – the teacher. Hence, order. a) Respondents no.3 Secretary and respondent no.4 Head Master of School, to deposit 50% of the arrears each, payable to the petitioner within two months. b) On such deposits, liberty to the petitioner to receive arrears on an application. c) Both the contempt petitions disposed of. d) Rule discharged. (K.U. CHANDIWAL, J) tsk/cp15.08.1