1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CONTEMPT PETITION NO.97 OF 2006 IN WRIT PETITION NO.767 OF 2000 1. Mrs. Pushpalata w/o Bhausaheb Ghorpade, age 52 years, occup. service, r/of Shri Shivaji Vidyaniketan Quarter No. 3, Shri Shivajinagar, Rahuri, District Ahmednagar. 2. Arun s/o Balkrishna Bhong, age 51 years, occup. Service, r/of Shri Shivaji Vidya Niketan, Shri Shivaji Nagar, Rahrui, District Ahmednagar. 3. Shivaji Keru More, age 48 years, occup. and r/o as above. 4. Mohd. Rafiq Allahbaksha Tamboli, age 45 years, occup. and r/of as above. 5. Suresh s/o Dhondiram Tanpure, age 42 years, occup. and r/o as above. 2 6. Anil s/o Haribhau Jadhav, age 41 years, occup0. and r/of as above. 7. Prabhakar s/o Kashinath Andhale age 42 years, occup. and r/of as above. 8. Arjun s/o Nivrutti Jagdale age 50 years, occup. and r/o as above 9. Mrs. Mitravinda w/o Dayanand Kaledhonkar, age 44 years, occupation and r/of as above. 10. Vasant s/o Krishnarao Zaware age 41 years, occup. and r/o as above. 11. Dattatraya s/o Vithal Tanapure, age 42 years, occup. and r/of as above. 12. Smt.Leelawati d/o Deorao Chitale age 43 years, occup. and r/of as above. 3 13. Iqbal s/o Habib Khan, age 45 years, occupation and r/of as above. ... Petitioners. versus 1. Bhimrao Dinkar Fadtare age 55 years approximately, Education Officer (Sec.), Zilla Parishad, Ahmednagar. 2. Tukaram Namdeo Londhe age 52 years, occupation Dy.Director of Education, Officer of Deputy Directorate of Education, Central Building Pune-1. 3. Prasad Baburao Tanpure, age 64 years, occupation Agril. and Social Worker, r/o Tanpurewada, Tanpure Galli, Rahuri, District Ahmednagar. 4. Keru Mahadu Pansare, age 50 years, occup. Agril. r/o Kukadewedhe, Tq. Rahuri, District/ Ahmednagar. 4 5. Ramdas Vishwanath Dhumal, (Patil) age 65 years, President of Shri Shivaji Shikshan Prasarak Mandal, Shri Shivaji Nagar, Rahuri, District Ahmednagar. 6. Kishor Dnyandeo Vane, age 35 years, Secretary of Shri Shivaji Shikshan Prasarak Mandal, Shri Shivaji Nagar, Taluka Rahuri, Dist.Ahmednagar. 7. Prakash Pandharinath Korde, age 57 years, occup. Principal, Shri Shivaji Vidyaniketan, Shri Shivaji Nagar, Taluka Rahuri, District Ahmednagar. 8. State of Maharashtra. .. Respondents ------------- Shri V.J.Dixit, Senior Counsel, instructed by Smt. Kalpana Mutatkar, Advocate for the petitioners. Respondent Nos. 1 and 2 served. Smt.R.K.Ladda, A.G.P. for Respondent No.8. Shri S.P.Deshmukh, Advocate, for Respondent No.3. Shri R.N.Dhorde, Advocate, instructed by Shri N.B. Suryawanshi, Advocate for Respondent No.4. Shri V.D.Hon, Advocate, for Respondent Nos.5 to 7. 5 Coram: P.R. Borkar, J. Date : Sept. 15, 2009. ORAL JUDGMENT 1. This is a petition under the Contempt of Courts Act, 1971 praying that Respondents Nos. 1 to 7 be held guilty for not obeying the orders passed on 17.11.2000 by Division Bench of this High Court in Writ Petition No.767 of 2000 as confirmed by the Hon'ble Supreme Court in Civil Appeal Nos. 1049 and 1050 of 2002 on 31.8.2005. 2. The contempt petitioners are the teachers working in non-aided English Medium School known as "Shri Shivaji Vidyaniketan" at Rahuri District Ahmednagar. The school run by educational institution Shri Shivaji Shikshan Prasarak Mandal, Rahuri, Dist. Ahmednagar, a public trust registered under the Bombay Public Trusts Act. 03. Present contempt petitioners had filed Writ Petition No.767 of 2000 against the above School, as also State of Maharashtra, the Educational Institution, through its Secretary and President Deputy Director of Education, Maharashtra State, Pune Division, Pune, Education Officer (Secondary), Zilla Parishad, Ahmednagar. The grievance of the petitioners in the Writ 6 Petition was that they were not given benefits of pay-scales recommended by the 5th Central Pay Commission. As stated earlier, the Writ Petition came to be decided on 17.11.2000 by Division Bench of this Court. Paragraphs 14 and 15 of the judgment read as under; "14. We, therefore, allow the petition partly in terms of the following order. (i) The petitioners are entitled for the benefits of the 5th Pay Commission Recommendations on par with the teachers employed in private aided secondary and higher secondary schools. (ii) Such pay scales and all other benefits, pursuant to the 5th Pay Commission Recommendations shall be payable to the petitioners with effect from 1st May, 1999. (iii) In case any teacher has retired during the pendency of this petition, the pay scale of such teacher shall be revised as on 1st May, 1999 and the salary for the purpose of retiral benefits shall be fixed accordingly. 7 (iv) The arrears, if any, on account of dearness allowance or other allowances with effect from 1st May, 1999 as well as the arrears in salary and/or the allowances, as payable under the 4th Pay Commission Recommendations shall be paid to the Petitioners within a period of three months from today. 15. Rule made partly absolute in terms of the above order. Costs in cause." 04. The said judgment in Writ Petition No.767 of 2000 was challenged before the Supreme Court by way of Civil Appeal Nos.1049 and 1050 of 2004 and those were decided and disposed of by the Supreme Court on 31.8.2005 with following order; " We find no reason to interfere with the judgment of the Division Bench. The appeals are dismissed. The parties to bear their own costs. We are told that the respondent Nos. 4 to 17 are not paid salary and allowances in accordance with the directions given by the High Court. In order to implement the judgment of the High Court, the appellant-trust is given three months time from today to pay the 8 salary and allowances to respondent nos. 4 to 17." 05. Earlier, contempt petition No.162 of 2001 was filed. However, by order passed on 12.2.2002, the same was disposed of, in view of pendency of proceedings before the Supreme Court and the order of status-quo granted by the Supreme Court. By the said order dated 12.2.2002, liberty was given to the contempt petitioners to file fresh contempt petition after decision of the Supreme Court. It is the case of the present contempt petitioners that after the decision of the Supreme Court in Civil Appeal Nos.1409 and 1050 of 2002, several reminders were sent by them to the Respondents, but the Respondents did not give them benefits granted by the court and, therefore, they have filed present contempt petition. 06. After notices by this Court of this contempt petition, on behalf of Respondent Nos. 3 to 7 reply affidavits have been filed on record. It is argued before this Court that Shri Shivaji Vidya Niketan is a school run by Shri Shivaji Shikshan Prasarak Mandal, which is a trust. The trust was established by Rahuri Sahakari Sakhar Karkhan (hereinafter referred to as "Rahuri SSK") and some of the directors of Rahuri SSK automatically become ex-officio trustees of the said Shikshan Prasarak Mandal. The school is a 9 residential school in which non-residential students are also admitted. The only source of income is the fees charged to the students. The defence taken before this court by the Respondents-contemnors is many-fold. It is submitted on behalf of the Respondents that some of the persons who are parties to the original proceedings before the High High Court/Supreme Court have retired by the time compliance of the orders of the Court was required. New election of Dr.Baburao Bapuji Tanpure Sahakari Sakhar Karkhana Limited (which is also described as Rahuri Sahakari Sakhar Karkhana at some places) is held on 27.11.2005 and new Board of Directors took over charge on 18.12.2005 and two directors (Respondent Nos. 5 and 6) as ex-officio members have assumed charge of the post of President and Secretary respectively of Shri Shivaji Shikmshan Prasarak Mandal on 25.1.2006 which is after due date for compliance of the court orders was over and, therefore, they are not liable. 07. It is also argued on behalf of Respondents that in the present contempt petition the orders of the Supreme Court are said to have been disobeyed by the Respondents and therefore the High Court has no jurisdiction to entertain the contempt petition and for this purpose, learned counsel for Respondents relied upon a ruling of this court. It is submitted that there 10 was no willful disobedience but, financial condition of the educational trust is so much precarious that it is not able to pay the dues of the contempt petitioners. There is no source of income to the Respondents, although they have desire to obey the orders of the court and pay arrears of the contempt petitioners. It is also argued that the remedy available to the petitioners is not of contempt petition, but to follow regular procedure for execution of the decree. 08. In paragraph 4 of reply affidavit dated 12.12.2006 filed on behalf of Respondent Nos. 5 to 7, it is stated that they were not parties to Writ Petition No.767 of 2000 and that Respondent Nos. 5 and 6 are elected in the elections held on 27.11.2005 of Dr. Baburao Bapuji Tanpure Sakhar Karkhana Ltd. which was earlier known as Rahuri Sahakari Sakhar Karkhana. It is further stated in paragraph 4 of that affidavit that Respondent Nos. 5 and 6 took charge as members of Managing Committee of the said Karkhana on 18.12.2005 and took charge as trustees of Shivaji Shikshan Prasarak Mandal on 25.1.2006. It is further stated in paragraph 7 of the said affidavit that the orders passed by this Court in Writ Petition No. 767 of 2000 have merged in the orders passed by the Supreme Court in Civil Appeal Nos. 1049 and 1050 of 2002. It is further stated that the 11 Respondents are ready and willing to comply with the orders, but it is only because of the circumstances beyond their control, that they are not able to pay arrears to the petitioners. The educational trust has made all attempts to raise finance to comply with the orders of the courts, but the institution was not successful. On the other hand, the students are not taking admissions and in fact, the strength of the students is reduced. 09. Respondent No. 4 in his affidavit in reply dated 7.10.2007 has stated that prior to the order of the Supreme Court dated 31.8.2005, on 21.7.2005 the process of election of the Board of Directors of the Sugar factory had commenced by preparation of voters list. The election of the board of directors was held on 27.11.2005 and results were declared on 29.11.2005. It has also been stated in paragraph 5 of the said affidavit that though Respondent No. 4 was member of the Board of Directors his tenure in previous body was only upto 29.11.2005 and from 29.11.2005 new Board of Directors came in management pursuant to fresh elections and, therefore, the orders of the court could not be complied with or implemented. It is submitted that once the elections are declared, the Board of Directors has no right to take any policy decision. It is further stated in paragraph 6 of the said affidavit that the Sugar 12 factory, which was the parent body of the trust, was running into losses from the year 2000 onwards. The balance-sheet as on 31.3.2005 shows that there was accumulated loss of about Rs.27.00 crores which continued even thereafter. The copy of the balance-sheet is annexed as Annexure R-2 with the affidavit. It is also stated by Respondent No. 4 in para 6 of his affidavit that the school in question has been running into losses since 2000 onwards. In paragraph of the affidavit, it is stated that Respondent No. 4 was General Secretary of Shri Shivaji Shikshan Prasarak Mandal Trust since 2000 to 2005, but he was not operating the bank account. In paragraph 10, it is further stated that the trust has to pay large amount of Rs.60.00 lakhs towards loans owed to the nationalized banks and Rahuri SSK which was extending financial assistance to the trust by deducting certain amount from the sugarcane suppliers' payments. Even Rahuri SSK is obliged to pay huge amount of Rs.67.00 crores and hence Karkhana is not in a position to given financial assistance to the trust. Lastly, it is stated that there are circumstances of compelling nature which are beyond control of the Respondents. There is no willful disobedience on their part. 10. In reply affidavit on behalf of Respondent No. 3 sworn on 13.10.2007, he has stated that he had been on the Board of Trustees 13 of Shri Shivaji Shikshan Prasarak mandal, as President upto 29.11.2005, but after elections, he is no more concerned with the trust. According to Respondent No.3, the process of election to the Board of Directors of the Sugar factory had commenced few days prior to the order of the Apex Court and after election, his name did not figure as trustee in the new board of trustees of the educational institution although he was elected. Respondent No. 3 has also stated that the financial condition of the sugar factory, so also of the trust, has become precarious and there are no requisite funds or sources for generating the funds. 11. We find additional affidavit of Respondent No. 4 filed on 26.6.2009 wherein statements in earlier affidavit have been reiterated. He further stated that he had not contested the election held in 2005 for the Board of Directors of the Sugar factory and is no more director of the factory and since the elections were to be held, he could not take any decision earlier and it was beyond his control to comply with the orders of the High Court and the Supreme Court. In paragraph 6 of affidavit, it has been stated that the trust was running into losses since the year 2000 and balance-sheet as on 31.3.2005 shows that there was accumulated loss of about 27.00 crores which continued even 14 thereafter. Same was the case with the educational institution in question. In support of his say, the copy of balance sheet of the trust is produced on record as Annexure X-2 with affidavit. In paragraph 10 of the affidavit, it is stated that there were loans outstanding and Mahanagar Cooperative Bank Ltd. Ahmednagar had issued notice to the trust to repay the dues. The copy of notice is annexed as Annexure X-5 with the affidavit. In paragraph 9, it has been said that there was and is no willful disobedience on his part. Due to precarious financial condition of the school and the trust, it was beyond their capacity to comply with the orders of the court. 12. Along with affidavit in reply dated 10.7.2009 filed by Respondent No.6 on behalf of Respondent Nos.5 to 7, he has produced certain documents, such as, the copies of balance-sheet receipt and expenditure statement of the educational institution which are marked as Exhibit R-1 collectively. These documents clearly show that the trust is running into heavy losses and it is in financial difficulties. It is further stated that Respondent No. 7, who was Principal of the School, has retired on superannuation. In paragraph 8 of the affidavit, it is stated that the trust is also running severe losses on account of reduction in number of students. There is limited source available for 15 raising finance. 13. So, the main defence of the Respondents appears to be that they were unable to comply with the orders of the courts because of financial crises. It is also argued before this court that these reasons were brought to the notice of the court and in paragraph 6 of the judgment of this Court in Writ Petition No.767 of 2000 decided on 17.11.2000, there is reference that the educational trust was being run with the financial assistance of Rahuri SSK and it has no other source of income to manage the affairs of the school. But, then reference was made by court to the principle laid down in the case of Polychem Ltd. vs State of Maharashtra AIR 1998 SC 2546. We find reference again in paragraph 13 of the judgment wherein it is stated that Respondent Nos. 4 to 6 have in their affidavit in reply elaborately set out the financial difficulties and more particularly in respect of the management of the unaided English School where the petitioners are employed. Contention of Respondents is noted in paragraph 13 of the judgment to the effect that the trust has to pay a large amount to the tune of Rs.60 lakhs towards loan repayment to the nationalised banks and the Rahuri SSK which was extending financial assistance to the trust by deducting certain amount from the sugarcane suppliers' payments, has its heavy obligation to 16 pay a huge amount of Rs.67 Crores and, therefore, the Karkhana is not in a position to extend financial assistance to the trust any more. In addition, from the sugar season of 1997-98 onwards the members of Rahuri SSK had stopped deduction from payment of cane price towards the financial assistance to the trust. The petitioners have disputed the financial crises faced by the trust and Rahuri SSK. The court proceeded to observe, "it cannot be denied that the trust has to generate income to run the concerned school on its own and by legitimate means like revision of fees, donations from members/well-wishers etc." 14. So, it is argued before this court that it is mainly the precarious financial condition which is beyond their control which is not permitting the Respondents to comply with the orders of the court. Several authorities are cited on behalf of Petitioners and Respondents. In Dr. Prakash Watkar vs. Dr. Smt. Sadhna w/o Shashikant Waikar, 2004 (1) ALL MR 573, the contemnor explained compelling circumstances under which he could not obey the court order and being satisfied with the explanation and in the facts of that case, it was held that he cannot be said to have willfully disobeyed the order and therefore cannot be punished for contempt. Learned counsel for Respondents particularly relied upon paragraphs 3,4 and 8 of the judgment. 17 15. The second case cited is Jiwani Kumari Parekh vs. Satyabrata Chakravorty AIR 1991 SC 326, and more particularly paragraph 6 which reads :- " In our opinion, before a party can be committed for contempt, there must be a willful or deliberate disobedience of the orders of the Court. In the present case, we do not find that any such willful or deliberate or reckless disobedience of our order dated Jan. 16,1990, has been committed by the respondent to the contempt petition. Hence, the contempt petition is dismissed. There will be no order as to costs." 16. The third case cited on the same point is of Mohammad Salam vs. S.A. Azmi 2001 (1) Mh.L.J.249. Therein, the order of the School Tribunal was to be obeyed and it was held that the proper procedure was to get that order executed under the provisions of Civil Procedure Code and it was held that the contempt petition for non compliance of order passed by the Tribunal could not have been entertained by the High Court in the facts and circumstances of that case. 17. Another case on which reliance was placed 18 by the Respondents is K.L. Arora vs S.S. pRASAD(2000) 10 SCC 89. In the reported matter, there was justifiable reason for non compliance of the Supreme Court Order directing payment of the dues to the applicants. The applicant was facing departmental proceedings on the allegation of misappropriation of huge amount belonging to the employer company. It was held that no contempt was committed by non payment. 18. Reliance is also placed on Food Corporation of India vs. Sukha Deo Prasad 2009 AIR SCW 3135 and more particularly on paragraph 21 which is as follows; "21. At all events, if a garnishee, or a defendant, who is directed to pay any sum of money, does not pay the amount, the remedy is to levy execution and not in an action for contempt or disobedience/ breach under Order 39, Rule 2A. This is evident from Rule 46B of Order 21 read with Rule 11A of Order 38 of the Code. Contempt jurisdiction, either under the Contempt of Court Act, 1971, or under Order 39, Rule 2A of the Code, is not intended to be used for enforcement of money decrees or directions/orders for payment of money. The process and concept of execution is different from 19 process and concept of action for disobedience/contempt." 19. Learned Advocate Shri V.D. Hon for Respondent Nos. 5 to 7 relied upon the case of Bahujan Samaj Prabodhan Shikshan Sanstha vs. The State of Maharashtra 1998 (2) Bom.C.R.474. The Division Bench of this Court has made following observations in paragraphs 4 to 7 and 9. "4. As against the above argument of the petitioner, the learned Assistant Government Pleader, Shri S.S. Shinde, for respondent Nos. 1 to 5, has raised a preliminary objection as regards the very maintainability of the present Contempt Petition. It is the contention of the learned Asstt. Government Pleader that since the alleged contempt is of the Supreme Court of India, in accordance with the provisions of Article 215 of the Constitution of India, it would not be competent for this Court to take the cognizance of the alleged contempt of the Supreme Court of India. It is also his case that there is no provision under the Contempt of Courts Act, 1971, which empowers the High Court to punish the contemnor for the contempt of the Supreme Court. 20 5. Shri Shinde, argued that in accordance with the provisions of Article 215 of the Constitution of India, the High Court is a Court of record and the provision further provides that High Court shall have the powers of such Court including the power to punish for contempt of itself. The expression "itself" used in Article 215 is of much significance and cannot be said to include the contempt of the Supreme Court. Shri Shinde, argued that power of the High Court to punish for the contempt of the subordinate courts is derived by the High Court under the provisions of the Contempt of the Courts Act, 1971 and not under Article 215 of the Constitution of India. 6. It is further the contention of the learned Asstt. Government Pleader that Article 129 of the Constitution of India makes it clear that the Supreme Court is also a Court of recored and has power to punish for the contempt of "itself". However, when the Supreme Court exercises the power under Article 129 to punish for the contempt of High Court, the same can 21 be said to be with the aid of Article 142 of the Constitution. Thus, the sum and substance is that the High Court is not empowered under any of the provisions of the Act or of the Constitution, to punish the alleged contemnor for the contempt of the Supreme Court. 7. Shri Shinde, in support of his contention, has brought to our notice a judgment of the learned Single Judge of this Court, in the matter of (Manubhai P. Vashi v. State of Maharashtra) 1, reported in 1997 (1) Bom.C.R.35 : 1996(2) Mh.L.J. 615. We have curiously gone through the said judgment and wee feel that the approach of the learned Judge, is the only possible one which could be taken in the matter of contempt of the Supreme Court, if it is challenged before the High Court. 9. Having been satisfied with the basic objection raised by Shri S.S.shinde, the learned Assistant Government Pleader for Respondent Nos. 1 to 5, we are of the opinion that the present Contempt Petition would not lie before this Court. We, without slightest vacillation concur with the view taken by the learned Single 22 Judge of this Court in the case cited above. We may observe that the petitioner is at liberty to avail the other remedy, if open to him, in accordance with law." 20. It is argued by Shri V.D.Hon, learned counsel for Respondent Nos. 5 to 7 that in this case the order passed by the High Court has merged into the order passed by the Supreme Court and as such,