Bombay High Court
Snehlata Shrinivas Dashrthe vs Nutan Bahuuddeshiya Vidyalaya on 10 December, 2009
Author: R.K. Deshpande
Bench: R.K. Deshpande
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY,
BENCH AT AURANGABAD
CONTEMPT PETITION NO.297 OF 2008
Snehlata Shrinivas Dashrthe
Petitioner
-VERSUS-
Nutan Bahuuddeshiya Vidyalaya,
and another.
Respondents
...
Shri.R.J.Godbole, h/f Shri.C.V.Dharurkar, Advocate for petitioner.
Shri.V.J.Dixit, learned Senior Advocate assisted by Shri.Rodge, Advocate for the respondent nos.1 and 2.
...
(CORAM : R.K. DESHPANDE, J.) Date : 10th December, 2009.
PER COURT :-
1. Notice in this contempt petition was issued on 10.11.2008 which was made returnable after three weeks. When the matter was listed before this Court on 02.07.2009, time was sought on behalf of respondent nos.1 and 2 to file reply and it was granted till 22.07.2009. However, the respondent nos.1 and 2 were directed to remain present on 22.07.2009. On 22.07.2009, none appeared for the respondents. Hence, ::: Downloaded on - 09/06/2013 15:24:16 ::: 2 this Court passed an order "Respondents be given notice to appear in person. Notice returnable after six weeks". Thereafter, on 04.09.2009 and on 25.09.2009, time was granted to the respondents to file an affidavit, upon an assurance that respondent nos.1 and 2 shall remain present on next occasion. The respondent nos.1 and 2, thereafter filed affidavit dated 08.10.2009, which was sworn in by the respondent no.2-the President of the Society. Thereafter, the matter was listed before this Court on 17.11.2009.
After hearing the parties, this Court passed a detailed order. In paragraph No.6 of the said order, this Court observed as under :-
"If the Management is insisting the petitioner to join the services by accepting fresh order of appointment dated 10.08.2007 as a condition to permit her to work, prima facie this appears to be in breach of the order passed by this Court on 20.07.2007."
2. In paragraph No.7 of the order this Court observed as under:-
"However, if the Management is not permitting her to perform the duties unless she accepts ::: Downloaded on - 09/06/2013 15:24:16 ::: 3 the order of appointment dated 10.08.2007, then this prima facie amounts to willful breach of the order dated 20.07.2007."
3. Thus, this Court while passing the detailed order on 17.11.2009, made the aforesaid charges very clear to the respondents. After passing of the said order, matter was posted for hearing on 10.12.2009 i.e. for today and the respondent Nos.1 and 2 were directed to remain personally present in the Court.
Shri.Dixit, the learned Senior Counsel assisted by Shri.Rodge states that respondent Nos.1 and 2 are personally present in the Court, in compliance of the order dated 17.11.2009.
4. Shri.Dixit, the learned Senior Counsel relying upon the provisions of Rule 19, 21 and 22 of the said Rules, urged that mere issuance of notice in Form I appended to the said Rules is not enough and the petitioner is required to submit the "Draft Charges" and this Court is required to frame such charges, which are to be replied on affidavit by the contemnors. According to Shri.Dixit, it is only after affidavit is filed, in response to the charges so ::: Downloaded on - 09/06/2013 15:24:16 ::: 4 framed by the Court that matter can be proceeded with for final hearing. According to Shri.Dixit, neither the petitioner has furnished the draft charges nor this Court has framed the draft charges as yet though the matter was admitted on 17.11.2009. Hence, Shri.Dixit prayed for framing of draft charges and to provide an opportunity to file an affidavit in response to the same.
5. In order to appreciate the contention raised by the learned Senior Counsel Shri.Dixit, the provisions of Rules framed by the High Court to regulate the proceedings for contempt, under Article 215 of the Constitution of India and the Contempt of Courts Act, 1971, which are incorporated under Chapter XXXIV of the Bombay High Court Appellate Side Rules, 1960 (Hereinafter called as "the said Rules")are required to be seen. The cognizance of contempt and the procedure to deal with the contempt petition, is specified under Rule 6 and onwards. Rule 6 of the said Rules deals with the parties to the contempt petition, whereas Rule 7 deals with the contents of the contempt petition, including an affidavit to be ::: Downloaded on - 09/06/2013 15:24:16 ::: 5 filed in support thereof and the documents to be accompanied along with such petition. The Rules 8 to 11 of the said Rules which are relevant for this case, are reproduced below :-
"8(1) Every Petition or Reference under Rule 5(b), (c), (d) or (e) shall on being filed or received be forthwith posted before the Court for preliminary hearing and for orders as to issue of notice. Upon such hearing, the Court, if satisfied that a prima facie case has been made out for issue of notice, may issue such notice to the Contemnor and, if not so satisfied may dismiss the Petition.
(2) The Court may, if it thinks it absolutely necessary to do so, and where the Court is of the opinion that mere service of Notice, will not secure the presence of the Contemnor, along with issue of Notice also issue a bailable or non-bailable warrant for arrest of the contemnor.
9.(1) Notice to the person charged shall be in form I. The person charged shall, unless otherwise ordered, appear in person before the Court as directed on the date fixed for hearing of the proceeding, and shall continue to remain present during hearing till the ::: Downloaded on - 09/06/2013 15:24:16 ::: 6 proceeding is finally disposed off by Order of the Court.
(2) When action is initiated on a Petition or a Reference, a copy of the Petition or the Reference along with the annexures and Affidavits shall be served upon the person charged.
10. The person charged may file his reply by way of an Affidavit or Affidavits within 14 days from the service of the Notice or within such time as the Court may fix.
11. No further Affidavit or document shall be filed except with the leave of the Court."
6. Thus, entire scheme of Rules 8, 9, 10 and 11 of the said Rules, read with contents of notice in Form I, indicate that the contemnor is put on notice that he is required to meet the allegations made against him in the contempt petition. The material in support of such allegations is also served upon him along with the order of the Court. Perusal of Form of notice, itself makes clear that the Court is satisfied that there exists a prima facie case for issuance of ::: Downloaded on - 09/06/2013 15:24:16 ::: 7 notice for considering action under Contempt of Courts Act against contemnor. The contemnor is put on notice, as shown in Form I, that the contempt petition has been fixed for hearing on the date specified therein and the contemnor is required to appear in person and to continue to remain present during hearing on all subsequent dates, which the Court may fix in the matter, till proceedings is finally disposed of by an order of the Court. Notice calls upon the contemnor to show cause as to why action under Contempt of Courts Act should not be taken against the contemnor and in case of failure to appear before the Court, as directed and to show cause, the Court shall proceed to pass such orders as may deem fit and proper.
7. Thus, it is only one notice in Form I, which is contemplated by the aforesaid Rules. Such notice is issued only after the Court is prima facie satisfied that the case has been made out for issuance of notice against the contemnor. It may be open for the Court, to issue "notice before admission" instead of issuing "notice" in Form I, in order to enable the Court, to attain the satisfaction about the existence of prima ::: Downloaded on - 09/06/2013 15:24:16 ::: 8 facie case for contempt. However, once the notice in Form I is issued, then it amounts to an admission of contempt petition and the contemnor is required to file his affidavit in response to such notice. After receipt of such affidavit filed in defence, the Court is required to adjudicate the contempt petition by holding an enquiry as contemplated by Rule 22 and to pass final order under Rule 26 of the said Rules, on the basis of the affidavit or after taking such further evidence as the Court may deem fit and proper.
8. Shri.Dixit, the learned Senior Counsel relied upon the provisions of Rule 19(a),19(c) and 20 of the said Rules, which is reproduced below:-
"19.(a) Every Notice issued by the High Court or Designated Court to the contemnor shall be accompanied by a copy of Petition or Reference, as the case may be, together with the copies of Affidavits, if any.
(b)******
(c) Notice of every proceeding under this Act shall be served personally on the person ::: Downloaded on - 09/06/2013 15:24:16 ::: 9 charged, unless the Court, for reasons to be recorded, directs otherwise. In that case service may be effected in the manner prescribed under the Code of Civil Procedure and/or the High Court Rules or the Rules of the concerned Court for service of process.
20. Whenever the High Court or Designated Court issues a notice, it may dispense with the personal attendance of the person charged with the contempt and permit him to appear through an Advocate and in its discretion, at any stage of the proceeding, direct the personal attendance of such person, and, if necessary, enforce such attendance in the manner herein above provided."
According to the learned Senior Counsel, Rule 19(a) reproduced above, require second notice to be issued to the contemnor and such notice is in respect of the draft charges, which are required to be framed by the Court after admitting contempt petition.
Relying upon the provisions of Rule 19(c) and Rule 20 reproduced above, the learned Senior Counsel urged that the Phrase "Person Charged" employed therein, indicate that the draft charges are required to be ::: Downloaded on - 09/06/2013 15:24:16 ::: 10 framed and in respect of it, the notice is required to be issued, as required by Rule 19(a) reproduced above.
According to him, this requirement of issuance of such notice is in addition to the requirement of issue of notice under Rule 8(1) and 9(1) and (2) r/w Form I appended to the said Rules.
9. The contention of the learned Senior Counsel about the requirement of issuance of notice under Rule 19(a) reproduced above, can not be accepted for more than one reason. Firstly, the notice contemplated by Rule 19(a), is a notice in respect of a petition or a reference under section 15(2) of the Contempt of Courts Act, which is apparent from the preceding provisions of Rules 12 and 14 of the said Rules, relating to a petition under section 15(2) of the said Act. The proceedings of contempt in instant case, are not under section 15(2) and hence Rule 19(a) does not apply. Secondly, the provision of Rule 9(1) and (2) deal with the contempt other than one under section 15(2) of the said Act and hence the present proceedings are governed by Rule 9(1) and (2) of the said Rules. Thirdly, it can not be the intention of ::: Downloaded on - 09/06/2013 15:24:16 ::: 11 the Legislature to provide for issuance of second notice of contempt, in respect of the same contempt petition, for the reason that the first notice in Form I is required to be issued only after the Court is satisfied that prima facie case has been made out for issuance of notice. The notice in Form I, is for final hearing of the matter and not admission of the matter.
10. The proceedings of contempt petition are quasi-criminal in nature and hence, the provision in respect of framing charge in criminal proceedings, as contained in the Code of Criminal Procedure, 1973 can not be read into it. Once the notice in Form I is issued, the contemnor is tried for the charges or allegations, which are contained in contempt petition.
There is no requirement of law in respect of the petitioner filing or submitting any draft charges to the Court or the Court framing any draft charges against the contemnor, in response to which, he is to be afforded an opportunity to file affidavit. The phrase "Person Charged" employed at several places under Rules, if read in the background of provisions, makes it clear that it refers to the allegations made ::: Downloaded on - 09/06/2013 15:24:16 ::: 12 in the contempt petition. However, if, the Court while issuing notice on prima facie satisfaction of the case for contempt, feels that the allegations are vague or the contemnor is required to be put on notice in respect of the specific charge, then it is open for the Court to pass appropriate order, to make out the exact case, which the contemnor is expected to meet or to frame the charge/s. The object of framing charge/s, is to convey the contemnor, the exact case which he is required to meet. It is not the form of charge/s, which is material but, it is substance of charge/s, which is material. If such substance of charge is made clear to the contemnor either in the contempt petition or by passing an order, then that is enough compliance of providing an opportunity to the contemnor, to meet the case. In view of this, the absence of framing of draft charge/s would, neither result in failure to provide an opportunity to the contemnor nor would deter the Court from proceeding to decide the contempt petition finally. Hence, the contention raised by Shri.Dixit, the learned Senior Counsel that the draft charges are required to be framed after admission of the contempt petition or issuance of notice in Form I, ::: Downloaded on - 09/06/2013 15:24:16 ::: 13 is rejected.
11. So far as the present case is concerned, it is not in dispute that the contemnors were issued with notice, which is in Form I of the said Rules and it was accompanied by a copy of contempt petition supported by Affidavit and annexures thereto.
Initially, on 10.11.2008, the notices in Form I were issued to the contemnor. However, this Court on second occasion issued notices on 22.07.2009. In response to the said notice, the contemnors appeared and filed their Affidavits. After hearing all the parties, the order dated 17.11.2009 was passed by this Court, containing exact nature of charge/allegations against the contemnors. The matter was admitted on 07.11.2009 itself and is fixed today for final hearing, by making it clear in the order dated 17.11.2009 itself that it shall be finally heard on 10.12.2009. The order dated 17.11.2009 is speaking order and there is no ambiguity nor any doubt in understanding the exact nature of charges or allegations, urged by the learned Senior Counsel. The contemnors are given more than a reasonable and sufficient opportunity to meet the case ::: Downloaded on - 09/06/2013 15:24:16 ::: 14 made out against them. It cannot therefore be said that the contemnors were not made aware of such case.
12. In view of above, the requirement of law in respect of affording contemnor an opportunity to meet the charges, is fully complied with and the matter is required to be proceeded with for final hearing.
However, Shri.Dixit, the learned Senior Counsel, at this stage, prayed for some time, to challenge this order in appropriate proceedings. The said request is accepted and hence, the matter is posted after vacation. However, it is made clear that the contemnor shall remain present in this Court on each and every date of hearing.
(R.K. DESHPANDE) JUDGE GAS/cp297.08 ::: Downloaded on - 09/06/2013 15:24:16 :::