Bombay High Court
Mr. Deepak Jaysing Kadam vs State Of Maharashtra And Ors on 1 February, 2022
Bench: Nitin Jamdar, Amit Borkar
1 39. Cont.Petn. 130.19.doc
JPP
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CONTEMPT PETITION NO. 130 OF 2019
IN
WRIT PETITION NO. 12561 OF 2017
Deepak Jaising Kadam ... Petitioner
V/s.
State of Maharashtra and Ors. ... Respondents
Mr. Ajinkya Udane for the Petitioner
Mr. V.M. Mali, AGP for the Respondents
Mr. Bhaskar Babar, Education Officer, Solapur present
CORAM : NITIN JAMDAR &
AMIT BORKAR, JJ.
DATE : 01 FEBRUARY 2022 (Through Video Conferencing) P.C. :-
This Contempt Petition is in respect of the disobedience of the order of this Court dated 18 April 2018 in Writ Petition No. 12561 of 2017.
2. This is a case of complete defiance to the order of the Court. Despite the orders passed in the Contempt Petition, putting the Education Officer to notice for the consequences of 2 39. Cont.Petn. 130.19.doc disobedience, they ignored the orders. Therefore, we are constrained to proceed further in contempt jurisdiction. This course of action is necessary to ensure that the judicial orders are obeyed, and the Rule of Law is maintained.
3. The Petitioner had filed a Writ Petition No. 12561 of 2017, which was disposed of on 18 April 2018 by directing the Education Officer (Secondary), Zilla Parishad, to decide on the proposal of the Petitioner expeditiously but in any case not later than three months. Three months were over in July 2018. Order was not complied with, nor any application for extension was moved. Therefore the Contempt Petition was filed. On 25 February 2020, the following order came to be passed:-
"1. This Contempt Petition alleges disobedience of order passed by the Division Bench (Coram : Shantanu Kemkar & Makrand Karnik, JJ.) dated 18 April 2018. Learned Counsel for the Petitioner submits that directions contained in Para 2 of the said order have not been complied by Respondent No.2.
2. Issue notice to Respondent No.2 returnable on 23 March 2020.
3. In addition to service of notice through Court, the Petitioners shall serve a private notice by Registered Post A.D. and/or by Courier service and/or by hand delivery or by e-mail/fax on the Respondent No.2 and shall file affidavit of service with tangible proof before the returnable date."
Thereafter the Contempt Petition came up on Board on 19 March 3 39. Cont.Petn. 130.19.doc 2021. The order was still not complied with and this Petition was adjourned for the learned AGP to take instructions as to the status of the matter. The Petition was adjourned to 5 April 2021. On 5 April 2021, the following order came to be passed :-
" On 19 March 2021, the learned AGP had taken time to take instructions as to the status of the matter.
2. The learned AGP states that he has called for information from the Education Officer (Secondary) Zilla Parishad, Solapur by written communication as well as by telephonic messages, yet, there is no response.
3. That being the position, the Education Officer (Secondary), Zilla Parishad, Solapur shall remain present in the Court with necessary files so as to give instructions to the learned AGP on 28 April 2021. The Education Officer be put to notice that if he does not remain present, coercive measures will have to be resorted to secure his presence."
The learned AGP had communicated all the orders, including of 5 April 2021, and there was no compliance.
4. On 11 January 2022, the learned AGP informed us that all orders are communicated, and yet no steps are being taken by the Education Officers. We had to take serious note, and a detailed order was passed as under:-
"By order dated 18 April 2018, the Division Bench directed the Education Officer, Secondary, Zilla 4 39. Cont.Petn. 130.19.doc Parishad, Solapur to decide the Petitioner's representation which was filed in the year 2017 regarding his approval. The decision was to be taken within three months. Since the decision was not taken, this contempt petition is filed.
2. In the contempt petition, the same parties as were joined in the writ petition have been joined, and it is not necessary to do so. The Petitioner will delete Respondent Nos.3 to 5 as they are not the contemnors. Leave granted.
3. As regards the non-compliance of the order, we note that it is not immediately after filing of the contempt petition that this Court is proceeding to take any coercive steps. The contempt petition first appeared on the board on 24 February 2021. Thereafter on 19 March 2021, it was adjourned for the learned AGP to take instructions as to the status of the matter. The learned AGP informed the Court on 5 April 2021 and the following order came to be passed:
"On 19 March 2021, the learned AGP had taken time to take instructions as to the status of the matter.
2. The learned AGP states that he has called for information from the Education Officer (Secondary) Zilla Parishad, Solapur by written communication as well as by telephonic messages, yet, there is no response.
3. That being the position, the Education Officer (Secondary) Zilla Parishad, Solapur shall remain present in the Court with necessary files so as to give instructions to the learned AGP on 28
5 39. Cont.Petn. 130.19.doc April 2021. The Education Officer be put to notice that if he does not remain present, coercive measure will have to resorted to secure his presence."
The AGP states that this order was communicated to the Education Officer. Neither the Education Officer has remained present, nor he is giving instructions to the AGP. Order is not complied with. Regarding incumbent of the post, the learned AGP informs the Court that Mr. Satyawan Sonawane was holding the charge of Education Officer from 2016 till January 2019 and is now posted as Secretary, SSC Board, Kolhapur. Thereafter Mr. Bhaskar Babar is now the current incumbent holding the post of the Education Officer (Secondary), Zilla Parishad, Solapur. Therefore, Mr. Satyawan Sonawane who was bound by the order has not taken any steps, nor Mr.Bhaskar Babar was informed after 5 April 2021 and has not taken any steps. Both the officers have simply ignored the orders of the Court in spite of reminders and also not co-operated with the office of the Government Pleader. Today when electronic communications are freely available and used, this conduct is not acceptable. Therefore, we are constrained to proceed in contempt jurisdiction against these two officers.
5. The Registry shall issue notice to Mr. Satyawan Sonawane and Mr. Bhaskar Babar. The notices should be served with the assistance of the concerned Police Station. The notice will call upon them to remain present and show cause as to why action under the Contempt of Court Act should not be taken against them. Notice is made returnable on 1 February 2022.
6. The Registry and the office of the Government 6 39. Cont.Petn. 130.19.doc Pleader will send a copy of this order (also by email) to the Deputy Director of Education, Pune, who can look into the issue, and more particularly in the light of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 which mandates that files should be processed within a particular time otherwise the Disciplinary Authority can consider the same as misconduct to be proceeded accordingly. The Government Resolution dated 6 February 2012 issued by the State of Maharashtra, following the decisions of this Court, has stated that the application for approval should be processed within the time limit as stipulated therein. Since the time limit is stipulated, prima facie, the provisions of the Act of 2005 in respect of dereliction of duty will have to be seen in reference to this stipulation.
7. Stand over to 1 February 2022."
5. Today, only the Contemnor Mr. Bhaskar Babar, is present on Video Conferencing. He has neither filed any further affidavit tendering any apology, nor he has complied with the order. He states before us that he should be given one more chance, and he will pass an order within two days and seek to tender an apology.
6. Ordinarily, we would have taken a lenient view if such orders stipulating a time limit are not complied with, but despite giving further opportunity, the orders are not complied with, then the serious note will have to be taken. Otherwise, we would be devaluing the orders of this Court. We may note here that the 7 39. Cont.Petn. 130.19.doc learned AGP today and even on the last occasion has very candidly submitted that both Mr. Bhaskar Babar and Mr. Satyawan Sonawane have not been co-operating with the Office of the Government Pleader and neither giving instructions nor responding to the communications sent by the Office of the Government Pleader. The learned AGP states that even for today's hearing, despite advance information to both Mr. Satyawan Sonawane and Mr. Bhaskar Babar, Mr. Bhaskar Babar has arrived in the Office of the Government Pleader at 11.00 a.m. after the Court proceedings commenced. This is on the backdrop of the detailed order on 11 January 2022. Such a position cannot be countenanced.
7. According to us, the stand taken by Mr. Bhaskar Babar is not genuine. He had an opportunity even from 5 April 2021 when the order was communicated to pass an order. In fact, the Education Officer was even warned on 5 April 2021 that coercive measures will be resorted to secure presence. The few words of oral apology said by Mr. Bhaskar Babar is only lip service. He has taken the whole proceedings with utter casualness. Mr. Bhaskar Babar seems to be under the impression that it is an accepted norm not to follow the orders of the Court.
8. The object of contempt jurisdiction is to ensure the enforcement and dignity of the judicial process. The Supreme Court 8 39. Cont.Petn. 130.19.doc in the case of Maninderjit Singh Bitta v/s. Union of India 1 has discussed in detail the effect of disobedience of the Court orders on the Rule of Law. The Supreme Court observed thus:-
"22. Another very important aspect even of the Civil Contempt is, `what is the attribution of the contemnor?' There may be cases of disobedience where the respondent commits acts and deeds leading to actual disobedience of the orders of the court. Such contemnor may flout the orders of the court openly, intentionally and with no respect for the rule of law. While in some other cases of civil contempt, disobedience is the consequence or inference of a dormant or passive behaviour on the part of the contemnor. Such would be the cases where the contemnor does not take steps and just remains unmoved by the directions of the court. As such, even in cases where no positive/active role is directly attributable to a person, still, his passive and dormant attitude of inaction may result in violation of the orders of the court and may render him liable for an action of contempt.
23. It is not the offence of contempt which gets altered by a passive/negative or an active/positive behaviour of a contemnor but at best, it can be a relevant consideration for imposition of punishment, wherever the contemnor is found guilty of contempt of court.
24. With reference to Government officers, this Court in the case of E.T. Sunup v. C.A.N.S.S. Employees Assoc.. [(2004) 8 SCC 683] took the view that it has become a tendency with the Government officers to somehow or the other circumvent the orders of the Court by taking recourse to one justification or the other even if ex-facie they are unsustainable. The tendency of undermining the 1 (2012) 1 SCC 273
9 39. Cont.Petn. 130.19.doc court orders cannot be countenanced.
25. Deprecating practice of undue delay in compliance with the orders of the court, this Court again in the case of M.C. Mehta v. Union of India and Ors. [(2001) 5 SCC 309] observed :
".....clear lapse on the part of NCT and Municipal Corporation. Even if there was not deliberate or wilful disregard for the court orders, there has clearly been a lackadaisical attitude and approach towards them. Though no further action in this matter need be taken for now, but such lethargic attitude if continues may soon become contumacious."
26. It is also of some relevancy to note that disobedience of court orders by positive or active contribution or non-obedience by a passive and dormant conduct leads to the same result. Disobedience of orders of the court strikes at the very root of the rule of law on which the judicial system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. If the Judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs (refer T.N. Godavarman Thirumulpad's case [(2006) 5 SCC 1]. The proceedings before the highest court of the land in a public interest litigation, attain even more significance. These are the cases that come up for hearing before the court on a grievance raised by the public at large or public-spirited persons. The State itself places matters before the Court for determination which would fall, statutorily or otherwise, in the domain of the executive authority.
27. It is where the State and its instrumentalities have failed to discharge its statutory functions or have acted 10 39. Cont.Petn. 130.19.doc adversely to the larger public interest that the courts are called upon to interfere in the exercise of their extraordinary jurisdiction, to ensure maintenance of the rule of law. These are the cases which have impact in rem or on larger section of the society and not in personam simplicitor. Courts are called upon to exercise jurisdiction with twin objects in mind. Firstly, to punish the persons who have disobeyed or not carried out orders of the court i.e. for their past conduct. Secondly, to pass such orders, including imprisonment and use the contempt jurisdiction as a tool for compliance of its orders in future. This principle has been applied in the United States and Australia as well.
28. For execution of the orders of the court even committal for an indefinite term has been accepted under Australian law [Australasian Meat Industry Employees Union v. Mudginberri Station Pty. Ltd. (1986) 161 CLR 98 (Australian High Court)] and American law, though this is no longer permissible under English Law. While referring to detention of a person for a long period to ensure execution of the orders in Re Nevitt [117 F. 448, 461 (1902)], Judge Sanborn observed that the person subjected to such a term `carries the keys of his prison in his own pocket.'
29. Lethargy, ignorance, official delays and absence of motivation can hardly be offered as any defence in an action for contempt. Inordinate delay in complying with the orders of the courts has also received judicial criticism. It is inappropriate for the parties concerned to keep the execution of the court's orders in abeyance for an inordinate period. Inaction or even dormant behaviour by the officers in the highest echelons in the hierarchy of the Government in complying with the directions/orders of this Court certainly amounts to disobedience. Inordinate delay of years in complying with the orders of the court or in complying with the directed stipulations within the prescribed time has 11 39. Cont.Petn. 130.19.doc been viewed by this Court seriously and held to be the contempt of court, as it undermines the dignity of the court. Reference in this regard can be made to Maniyeri Madhavan v. Inspector of Police, Cannanore [AIR 1993 SC 356] and Anil Ratan Sarkar and Ors. v. Hirak Ghosh and Ors. [(2002) 4 SCC 21]. Even a lackadaisical attitude, which itself may not be deliberate or wilful, have not been held to be a sufficient ground of defence in a contempt proceeding. Obviously, the purpose is to ensure compliance of the orders of the court at the earliest and within stipulated period."
9. While exercising the Contempt jurisdiction the Court will have to find out whether the orders of the Court have been breached willfully and intentionally. However, as observed by the Supreme Court in Maninderjit Singh Bitta, if consistently directions are ignored, willful and intentional violation stands established. Mr. Bhaskar Babar has made no attempt to show that the omission was not intentional or willful. All that he has stated he may be given an opportunity to pass the order, which opportunity he already had. Before proceeding further, we had passed a detailed order on 18 January 2021. At least on that time the corrective steps would have to be taken.
10. Notice has been duly given to Mr. Bhaskar Babar of this Contempt Petition. He has been given an opportunity to address the Court and also, the learned AGP has addressed the Court on his behalf. Neither the order is complied with, nor any request is made 12 39. Cont.Petn. 130.19.doc to file a reply. This leaves us no option but to proceed under the Contempt jurisdiction as we are duty-bound to ensure that the judicial process is not discredited and the dignity of this Court is maintained. Having considered the matter in totality as regard Mr. Bhaskar Babar is concerned, we find that Mr. Bhaskar Babar is guilty of the provisions of the Contempt of Courts Act for having committed civil contempt of the orders passed by this Court and also under Article 215 of the Constitution of India.
11. As regards the other contemnor that is Mr. Satyawan Sonawane is concerned, the position is even worse. He has simply not bothered to appear before the Court. The learned AGP states that no notice and information is given to Mr. Satyawan Sonawane about today's hearing and the order dated 11 January 2022. This leaves us with no other option but to direct the Registry to issue a bailable warrant of Rs.25,000/- to secure the presence of Mr. Satyawan Sonawane on 7 February 2022. Since the Court proceedings are online, the presence be secured in the Office of the Government Pleader of this Court.
12. As a result, following order:-
(a) It is declared that Mr. Bhaskar Babar, Education Officer (Secondary), Zilla Parishad, Solapur is guilty of the provisions of the Contempt of Courts Act for having
13 39. Cont.Petn. 130.19.doc committed Civil Contempt of the orders passed by this Court and also under Article 215 of the Constitution of India.
(b) Mr. Bhaskar Babar is punished for a fine of Rs.1,00,000/- (Rupees One Lakh Only) to be deposited in this Court within two weeks and in default to undergo simple imprisonment for two days.
(c) The Registry shall take necessary steps to issue a bailable warrant of Rs.25,000/-(Rupees Twenty Five Thousand Only) to secure the presence of Mr. Satyawan Sonawane on 7 February 2022. Since the Court proceedings are online, the presence be secured in the Office of the Government Pleader of this Court.
13. The Contempt Petition as regards Mr. Bhaskar Babar stands disposed of. The same shall continue regarding Mr. Satyawan Sonawane and the reporting compliance of the directions given to the Deputy Director.
14. At the request of Mr. Bhaskar Babar, the directions to pay fine and in default imprisonment is suspended for eight weeks from today.
14 39. Cont.Petn. 130.19.doc
15. So that such situations do not recur where the Court is constrained to proceed in contempt jurisdiction against the Education Officers of the State and considering the number of Petitions that arise from their orders, the office of the Government Pleader will forward copy of the order to the concerned Secretary of the State Government to circulate the same with necessary instructions to all the Education Officers in the State of Maharashtra.
AMIT BORKAR, J. NITIN JAMDAR, J.
Digitally
signed by
JYOTI
JYOTI PRAKASH
PRAKASH PAWAR
PAWAR Date:
2022.02.02
17:59:15
+0530