Bombay High Court
Tukaram S/O Khanduji Gaikwad And Etc. vs Santosh Mahadeorao Sayam And Others on 6 January, 1994
ORDER
1. The petitioners in both these contempt petitions are the employees of the Adivasi Sewa Trust, Hind Nagar, Wardha, the respondents not complied with the common order passed by the learned School Tribunal, Nagpur on 29-7-1992 and the facts being common, both these contempt petitions are decided by this common Judgment.
2. This is a Rule for contempt issued by my learned brother Hon'ble Shri Justice Sambre calling upon the respondents/contemners to show cause why they should not be dealt with for contempt of Court for having violated the order passed by the learned School Tribunal, Nagpur, on 29-7-1992 and another order passed by my learned brother Hon'ble Shri Justice Mutalik, on 2nd of March 1993 in contempt petitions Nos. 196/92 and 197/92.
3. The facts leading to the Rule are chequered but can be put in a short compass.
The respondents Nos. 1 and 2 are the Secretary and President of Adivasi Sewa Trust, Hind Nagar, Wardha respectively. The Adivasi Sewa Trust, Hind Nagar, Wardha is a public trust and registered Society. The said Society runs a School viz. Swargiya Sanjay Gandhi Adiwasi Vidyalaya at Panwadi, Tah. Arvi, Dist. Wardha. The school is recognised and getting grants from the State's Exchequer.
4. The petitioner Shyam Sonbaji Gudadhe was appointed as a Jr. Clerk in the said School vide appointment order dated 6-11-1987, for a period of two years. However, according to the petitioner Shyam Gudadhe, though he was appointed as a Jr. Clerk, in the appointment order it has been shown that he is appointed as a Laboratory Attendant. Though the appointment order shows his appointment as a Laboratory Attendant, throughout the tenure of his service, he worked as a Jr. Clerk. He is H.S.S.C., and, therefore, eligible and qualified to work as Jr. Clerk. The services of the petitioner were terminated by order dated 20-4-1990 with effect from 30-4-1990. The petitioner challenged the order of termination preferring appeal No. STN/66/90 before the learned School Tribunal, Nagpur. The learned School Tribunal, Nagpur was pleased to grant ex parte ad interim injunction to the order of the termination vide order dated 2-5-1990.
5. The petitioner Tukaram Khanduji Gaikwad was appointed as a Headmaster in the aforesaid School vide appointment order dated 24-6-1985. At the time of appointment, he was a trained Graduate teacher and eligible for being appointed to the post of Headmaster. The services of the petitioner were terminated under the pretext of acceptance of resignation alleged to have been tendered by the petitioner on 1-3-1990. The respondents Nos. 1 and 2, intimated the Education Officer, Wardha on 5-3-1990 about the resignation of the petitioner Shri Tukaram Gaikwad. According to the petitioner, he had not submitted any resignation at any time much less on 1st of March 1990. On the pretext that the petitioner has tendered his resignation, he was prevented from attending the School. The petitioner informed the Education Officer, Wardha, that he did not tender his resignation as alleged by the respondents Nos. 1 and 2.
Being aggrieved by the pretext and preventing the petitioner from attending the School and performing his duties as a Headmaster, he preferred appeal before the School Tribunal, Nagpur, bearing No. STN/67/1990.
6. Besides these two petitioners, other three employees also approached the School Tribunal, Nagpur. In all five appeals bearing Nos. STN/66/90, STN/67/90, STN/68/90, STN/69/90 and STN/70/90 were preferred by the employees including present petitioners. All the appellants filed a joint pursis duly signed by the parties before the learned Presiding Officer, School Tribunal, Nagpur and thereby they settled the matter. The terms of undertaking are to the following effect.
(i) The respondent No. 1 has undertaken to reinstate all the five appellants with continuity of service in the posts held by them with effect from the date of their termination.
(ii) Salary for the period commencing from 1-4-1990 till filing of pursis will be paid.
(iii) The appellants give up the claim for backwages i.e. for the period prior to 1-4-1990 for which no salary was paid.
The learned Presiding Officer, School Tribunal, Nagpur on the basis of the joint pursis passed common order on 29-7-1992 as under :
"Vide joint pursis filed by the parties namely, the appellants and respondent No. 1, the parties have arrived at a compromise. As per the compromise, the appellants are entitled to receive salary from 1-4-1990 till this date. The termination orders in the above cases, passed by the management are liable to be set aside. The 5 appellants are entitled to continuity of service in the same post w.e.f. the date of their termination. On the basis of this compromise, 1 direct the respondent No. 1 to pay the salaries (emoluments) w.e.f. 1/4/1990 up to date, and to reinstate the appellants with continuity of service w.e.f. the date of terminations as specified in the termination orders. The impugned termination orders passed by the management, and placed on record in these five appeals are hereby set aside. There will be no order as to costs."
7. The respondents Nos. 1 and 2 did not comply with the undertaking and wilfully disobeyed the common order passed by the learned School Tribunal, Nagpur on 29th of July 1992. Consequently, both the petitioners filed the contempt petitions Nos. 196/92 and 197/92. The respondents Nos. 1 and 2 as also the respondents Nos. 3 and 4 filed their separate replies.
8. On 9-11-1992, my learned brother Shri Justice S. G. Mutalik, passed the following order :
"Heard Shri A. P. Deshpande, learned counsel for the petitioner. Perused the compromise pursis and the common order passed by the Presiding Officer, School Tribunal, Nagpur.
2. Rule,
3. Respondents Nos. 1 to 3 are hereby ordered to deposit the amount of arrears of pay with effect from 1-4-90 ending with November 1992 within a period of one month from the receipt of the notice.
Rule returnable on 14-12-1992."
9. During the pendency of the contempt petitions the respondents Nos. 1 and 2 assured this Court and given an undertaking that the petitioners would be immediately reinstated as Headmaster and Laboratory attendant. It was specifically assured that fresh orders would be issued in due course.
10. In view of the undertaking given by the respondents 1 and 2 to this Court, this Court disposed of the contempt petitions Nos. 197 of 1992 and 196 of 1992, by order dated 2-3-1993.
11. On 6-3-1993, the petitioners received the orders through Shri Arun Choudhary, the learned counsel for the respondents 1 and 2. In pursuance of the appointment order issued on 6-3-1993, the petitioner Tukaram Gaikwad (Headmaster) went to the School with joining report on 9-3-1993 because intervening two days i.e. 7th and 8th of March 1993 were holidays. The petitioner Tukaram Gaikwad signed the Muster Roll on 9-3-1993. However, when he attended the School on 10th and 11th of March 1993, he could not find the Muster Roll in the School. On 11-3-1993, at about 1.30 p.m., the Secretary of the Institution and one Shri Mahajan the unauthorised Headmaster brought the musterroll but did not allow the petitioner to sign the same. The President of the Society stays at Wardha. Hence, the copy of the joining report was sent to the President of the Society by registered post at Wardha. The petitioner also reported the matter to the Police Station. Karangana, Tah. & Distt. Wardha, on 1-4-1993. The respondents Nos. 1 and 2 told the petitioner that unless he is ready to join as Asstt. teacher and give up his claim to the post of Headmaster, they will not allow him to join his duties. The respondents 1 and 2 specifically stated that though the order has been issued appointing the petitioner as Headmaster, they will not allow him to join as Headmaster. The respondents persuaded the petitioner to give up his claim to the post of Headmaster. Petitioners declined to accede to their persuasion, it being contrary to undertaking given to Court and orders issued accordingly. Therefore, respondents 1 and 2 concocted a false story to the effect that the petitioner did not resume his duty after 10th of March 1993.
12. The petitioner Shyam Sonbaji Gudadhe after receiving the order on 6-3-1993 as a Clerk, he went to join his services as a clerk on 11-3-1993. He was also not allowed to join his servicess as a Clerk by the respondents Nos. 1 and 2. The petitioner, therefore, made complaint to the Education Officer, Wardha, apprising him of the conduct of the respondents Nos. 1 and 2.
As the undertaking is clearly embodied in the order dated 29-7-1992 passed by the learned School Tribunal, the whole order or decree operates as a specific mandate to the respondent No. 1 to carry out the undertaking, failing which the Court can proceed against him for contempt. The undertaking is always understood to be an undertaking to the Court. An undertaking is a promise, given to the Court by a party to a proceeding to do or not to do particular thing which is enforceable as an injunction because when the Court accepts as undertaking given by the party, its order amounts in substance to an injunction. Breach of the undertaking is misconduct amounting to contempt.
13. The case of the respondents 1 and 2 is that the petitioner Tukaram Gaikwad resumed his duty on 9-3-1993, submitted the joining report and thereafter he did not turn up to work and the petitioner Shyam Gudadhe did not resume his duties at all. Under the circumstances, according to the respondents Nos. 1 and 2 they have not committed any breach of the order.
14. Giving conscious consideration to the facts and circumstances, of the case, as also the documents placed on record, it does not stand to reason that the petitioners did not turn to resume duties when both the petitioners after termination of their services, approached the School Tribunal and as there was a wilful disobedience of the order of the School Tribunal moved contempt petitions. It is not the case of the respondents 1 and 2 that the petitioners had any avocation of life to maintain themselves and their family members. In these hard days of sky rocketing prices, the petitioners would remain at home, in spite of the order of reinstatement with continuity of service, is difficult to digest. Therefore, the stand taken by the respondents 1 and 2 is not only imaginary but false. It is, thus, crystal clear that the respondents 1 and 2 have deliberately and wilfully disobeyed the orders passed by the learned School Tribunal on 29-7-92 and this Court on 2-3-1993, in view of the undertaking given by the respondents 1 and 2 for the reinstatement of both the petitioners and to pay the arrears to them.
15. The learned counsel for the respondents Nos. 1 and 2 submitted that the respondents 1 and 2 allowed both the petitioners to join their services on 7-12-93.
16. It has been stated at bar and not disputed by the respondents Nos. 1 and 2 that the petitioner Tukaram Gaikwad has to recover a total sum of Rs. 65427/-. The petitioner Shyam Gudadhe has to recover the sum of Rs. 13032/-.
The respondents 3 and 4 have made the payment to the tune of Rs. 1,15,685/- to both the petitioners as per the directions of this Court dated 9-11-1992. Out of this amount, Rs. 66,636/- were paid to the petitioner Tukaram Gaikwad while an amount of Rs. 49,052/- was paid to the petitioner Shyam. According to the respondents 3 and 4, this Court on the first day of hearing i.e. 9-11-92 passed ex parte order directing the respondents 3 and 4 to deposit the arrears of pay w.e.f. 1-4-90 ending November 1992 within a period of one month from the receipt of the notice. Against this order, the respondents 3 & 4 preferred contempt appeal No. 10/93 in Contempt Petition No. 197/92 and another contempt appeal No. 9/93 in contempt Petition No. 196/92. The Division Bench of this Court (consisting of Shri Justice Dhabe and Shri Justice Chouhan) ordered on 8-4-93 that the payment deposited should not be withdrawn. However, subsequently, on 17-4-1993 the interim stay granted was vacated. Further, their Lordships ordered that in case if both the petitioners i.e. Shri Tukaram Gaikwad and Shri Shyam Gudadhe want to withdraw the amount, they should furnish the solvency of the same to the satisfaction of the Addl. Registrar, High Court, Nagpur. The Division Bench of this Court (Hon'ble Shri Justice W. M. Sambre and Shri Justice Sirpurkar) on 4-11-1993 passed the following order.
"Respondents Nos. 2 and 3. Secretary and President of Adivasi Seva Trust, Hind Nagar, Wardha, are present in the Court as bailable warrants were issued against them. They are directed to deposit the amount of Rs. 1,15,685/- in this Court as under.
2. Mr. N. R. Chidam, President of the Trust-respondent No. 3 undertakes to deposit an amount of Rs. 25,000/- within eight weeks and, thereafter, he will deposit the remaining amount within a period of eight months. Thus, he undertakes to clear all the dues by depositing a total amount of Rs. 1.15,685/- in this Court within the stipulated time, i.e. within 10 months from today.
3. The matter be put up after eight weeks by which time the respondents are directed to deposit a sum of Rs. 25,000/- in this Court."
17. According to the respondents Nos. 3 and 4, the posts of the petitioners were approved for the period commencing from July 1989 to 31-3-1990 and thereafter there was no approval to the posts occupied by the petitioners and, therefore, they were not entitled to salary grant payable to them. The respondents 3 and 4 were not the parties to the joint pursis filed by both the petitioners and others on one part and the respondents No. 1 and 2 on the other. Similarly, the School Tribunal has not directed the respondents 3 and 4 to pay the arrears to the petitioner. Only because of the ex parte order passed by this Court on 9-11-1992, the respondent No. 3 has to accord the approval to the posts of the petitioners for the period commencing from 1-4-1990 to 30-11-1992 for adjustment of the payment made to the petitioner and thereby to satisfy the auditors. Perusal of sections 9, 10, 11, 12 and 13 of the Maharashtra Employee of Private Schools (Conditions of Service Regulation Act, 1977, make it clear that :
"If there is any dispute between the Management of the Private School and the employees, the aggrieved employees have to approach the School Tribunal to redress their grievances".
In view of the provisions of Section 12 of the said Act, "the decisions of the School Tribunal on an appeal entertained and disposed of by it shall be final and binding on the employee and the Management".
Clause 3 of Section 11 of the said Act, "empowers the Tribunal to recommend to the State Government that any dues directed by it to be paid to the employee or in case of an order to reinstate the employee any emoluments to be paid to the employee till he is reinstated may be deducted from the grant due and payable, or that may become due and payable in future, to the Management and be paid to the employee direct".
It is clear from the provisions of Section 11(3) that the School Tribunal is only empowered to recommend the State Government. According to me, considering the objects and intention of the Legislature, the litigation being between the Management and its employees no order, decree could be passed against the stranger. The appointments, terminations or the dismissal of the employees is the exclusive jurisdiction of the Management. Neither the Government nor the Education Officer is concerned with this. If any illegal order has been passed by the Management either in respect of the appointment, removal or dismissal, the Management have to face the consequences thereof. No liability be imposed in Govt. exchequer and consequent the public at large. In the instant case, it is apparent that the posts of the petitioners were not approved from 1-4-90 and, therefore, the respondent No. 3 is not in any way responsible to make any payments to the petitioners. There being a contract between the employer and the employees, the respondents 1 and 2 the Secretary and the President are responsible to make the payment to their employees including the petitioners.
18. Considering the facts and circumstances of the case and giving conscious thought over the submissions made by the rival parties, perusing the documents which have been placed on the record as well as considering the conduct and constant behaviour of the respondents 1 and 2, I have no hesitation to hold that the respondents 1 and 2 have wilfully disobeyed the order passed by the learned School Tribunal as also by this Court. Though the respondents 1 and 2 have given undertaking initially to the learned School Tribunal and subsequently in two contempt petitions referred above, to issue the order of appointment and reinstatement to the petitioners and to pay the arrears to both the petitioners but deliberately not fulfilled the promises. Apparently, the respondents 1 and 2 have no scant regards for the Court's orders. There is a wilful disobedience on their parts. Thus, the respondents 1 and 2 have committed contempt of the court. Though the respondents Nos. 1 and 2 tendered unconditional apology, considering their conduct and attitude, the apology is not accepted and they are not entitled for any leniency too.
19. The respondent No. 1 Shri Santosh Mahadeorao Sayam-Secretary of Adivasi Sewa Trust, Hind Nagar, Wardha and the respondent No. 2 Shri N. R. Chidam-the President of Adivasi Sewa Trust, Hind Nagar, Wardha, both are convicted for the contempt of Court and sentenced to suffer simple imprisonment for 3 months and to pay a fine of Rs. 1000/- each and in default of payment of fine each one has to suffer further simple imprisonment for one month.
The respondents Nos. 3 and 4 though were not the necessary parties, they were joined as respondents/contemners. There is no iota of evidence to hold the respondents Nos. 3 and 4 guilty for any breach. Rule issued against them is, therefore, discharged.
At this stage, the learned counsel for the respondents Nos. 1 and 2 submitted an application for suspension of sentence and fine. Considering the facts and circumstances of the case, as also conduct and attitude of the respondents Nos. 1 and 2, according to me, they have no regard for the orders passed by the learned School Tribunal and this Court. It appears that they are treating the judicial orders as paper tigers. It being a serious matter and the persons those who are repeatedly wilfully flouting the orders of the Court do not deserve any suspension of sentence and fine. Under the circumstances, the application for suspension of sentence and fine is rejected.
20. Order accordingly.