Bombay High Court
Vilas Shankarrao Deshmukh And Anr. vs S.A. Ghode, Principal, Navprabhat ... on 8 September, 2000
Equivalent citations: (2000)IIILLJ139BOM
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar
JUDGMENT A.M. Khanwilkar, J.
1. This contempt petition has been filed under Section 12 of the Contempt of Courts Act, for non-compliance of the directions issued by the School Tribunal on October 30, 1998. The School Tribunal by the said order directed the Respondents to reinstate the Petitioners within 30 days from the date of order and to pay all the salary from the date of alleged termination till the Petitioners resumes duty, within 60 days. The School Tribunal further directed that if the Management fails to make the payment within 60 days, Respondent No. 3, the Deputy Director of Education be informed to deduct the amount from the grants of the Respondent School. After the said decision, it is stated, that the Petitioners approached the Respondents and called upon them to comply with the said directions. Since the directions were not complied with, the Petitioners eventually gave notice dated February 22, 1999 to the Respondents. It is stated in para 5 of the petition that although the Petitioners approached the Respondent No. 3, even the Respondent No. 3 did not comply with the direction, though he was duty bound to do so. Eventually the present contempt petition has been filed on July 14, 1999.
2. This Court issued notice before admission on January 14, 2000. The matter was thereafter listed only on August 2, 2000, when counsel for the Respondents prayed for time to file reply, as a last opportunity. The matter was once again listed on August 8, 2000 before which date the Respondents 1 and 2 filed their written submissions. Since Respondent No. 3, viz. the Deputy Director of Education, did not file reply even till then, this Court directed the Respondent No. 3 to remain personally present in Court on August 14, 2000. Personal presence was later on dispensed with by order dated August 24, 2000.
3. Since it has been observed that too many contempt petitions are pending in this Court for similar relief due to non-compliance of directions issued by the School Tribunal and particularly in the light of the latest decision of Justice D.K. DESHMUKH reported in Mohammad Saleem Anamul Haque v. S.A. Azami and Ors. 2000 (2) CLR 287, it was thought proper that this matter should be heard as the leading case so as to find out the correct legal position and to evolve a procedure that would subserve the interest of employees who are required to litigate even for the purposes of execution of the order passed in their favour by the School Tribunal. Mr. Gavai, learned Government Pleader, was requested to assist the Court, who quickly responded to the said request and ensured that necessary instructions were obtained in shortest possible time. It would not be out of place to also mention about the able assistance given by Shri Anjan De, advocate who appeared for the Petitioners.
4. Before I proceed to examine the rival pleas in this case, it would be essential to recapitulate the settled legal position. It is well-settled that powers exercised by the School Tribunal have the trappings of the Court and, therefore, it has been held that the School Tribunal is a 'Court'. It is also well-settled that non-compliance of direction issued by the School Tribunal amounts to committing contempt of Court within the meaning of Contempt of Courts Act, 1971. It is also well settled that the direction issued by the School Tribunal is executable and effective remedy has been provided under the Act in favour of the employee to get the directions executed through the School Tribunal itself. In the circumstances, the only area which requires to be examined is whether under the scheme of the said Act it is possible to contend that the provisions are self-contained Code and an effective machinery has been provided by the Legislature for execution of the directions issued by the School Tribunal. In this behalf reference to the provisions of Sections 11 and 13 of the Maharashtra Employees of Private Schools. (Conditions of Service) Regulations Act, 1977 (referred to as 'the Act') would be useful. Sections 11 and 13 of the Act read as under :
"Section 11. Powers of Tribunal to give appropriate reliefs and directions:
(1) On receipt of an appeal, where the Tribunal, after giving reasonable opportunity to both parties of being heard, is satisfied that the appeal does not pertain to any of the matters specified in Section 9 or is not maintainable by it, or there is not sufficient ground for interfering with the order of the Management it may dismiss the appeal.
(2) Where the Tribunal, after giving reasonable opportunity to both parties of being heard, decides in any appeal that the order of the dismissal, removal, otherwise termination of service or reduction in rank was in contravention of any law (including any rules made under this Act), contract or conditions of service for the time being in force or was otherwise illegal or improper, the Tribunal may set aside the order of the management, partially or wholly, and direct the Management,
(a) to reinstate the employee on the same post or on a lower post as it may specify;
(b) to restore the employee to the rank which he held before reduction or to any lower rank as it may specify;
(c) to give arrears of emoluments to the employee for such period as it may specify;
(d) to award such lesser punishment as it may specify in lieu of dismissal, removal, otherwise termination of service or reduction in rank, as the case may be;
(e) where it is decided not to reinstate the employee or in any other appropriate case, (to give to the employee twelve months' salary (pay and allowances, if any) if he has been in the service of the school for ten years or more and six months' salary (pay and allowances, if any) if he has been in service of the school for less than ten years), by way of compensation, regard being had to loss of employment and possibility of getting or not getting suitable employment thereafter, as it may specify; or
(f) to give such other relief to the employee and to observe such other conditions as it may specify, having regard to the circumstances of the case.
(3) It shall be lawful for 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 employees 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.
(4) Any direction issued by the Tribunal under Sub-section (2) shall be communicated to both parties in writing and shall be complied by the Management within the period specified in the direction, which shall not be less than thirty days from the date of its receipt by the Management.
Section 13. Penalty to Management for failure to comply with Tribunal's directions (1) If the Management fails, without any reasonable excuse to comply with any direction issued by the Tribunal under Section 11 or any order issued by the Director under Clause (a) of Sub-section (1) or Sub-section (4) of Section 4-A within the period specified in such direction, or as the case may be, under Sub-section (5) of Section 4-A or within such further period as may be allowed by the Tribunal or Director, as the case may be, the Management shall, on conviction, be punished,
(a) for the first offence, with imprisonment for a term which may extend to fifteen days or with fine which may extend to fifty thousand rupees or with both:
Provided that, in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, the fine shall not be less than ten thousand rupees and
(b) for the second and subsequent offences, with imprisonment for a term which may extend to fifteen days or with fine which may extend to seventy five thousand rupees, or with both.
Provided that, in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, the fine shall not be less than twenty thousand rupees.
(2)(a) Where the Management committing an offence under this Section is a society, every person, who at the time the offence was committed, was in charge of, and was responsible to the society, for the conduct of the affairs of the society, as well as the society, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that, nothing contained in this Sub-section shall render any person liable to the punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of the offence.
(c) Notwithstanding anything contained in Clause (a) where the offence has been committed by a society and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any president, chairman, secretary, member, Head or manager or other officer or servant of the society, such president, chairman, secretary, member, Head or manager or other officer or servant concerned shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
Explanation : For the purposes of this Section "society" means a society registered under the Societies Registration Act, 1860, or a public trust registered under the Bombay Public Trusts Act, 1950 or any other body corporate, and includes an association or body of persons by whatever name called, under whose management one or more private schools are conducted."
But before I proceed to examine the said aspect of the matter, it would be appropriate to refer to the decisions relied upon by both the counsel at the time of hearing.
5. Mr. Anjan De relied on a decision reported in Chandrakant v. Sophy Kelly Hill Garage High School, Bombay 1987 1 MLJ 1012 (para 7), which is a judgment of the Division Bench of this Court, to contend that merely because Section 13 provides for penalty, that by itself would not mean that the action for having committed contempt of Court under the provisions of the Contempt of Courts Act cannot be maintained. The said decision takes a view that the provisions of Contempt of Courts Act are in addition to the provisions of special Statute, even if the Statute provide for punishment and penalty for non-compliance of the directions of the School Tribunal.
6. The second decision relied upon by the learned counsel is Mohammadi Fida Hussam v. State of Maharashtra 1986 MLR 1250, again a judgment of the Division Bench of this Court, at page 1252, para 16 thereof, to contend that the recommendation made by the School Tribunal under the provision of Sub-section (3) of Section 11 of the Act to the State Government that any dues directed by it to be paid to an employee be deducted from the grants that would become due and payable to the school's management and be paid directly to the employee, such a recommendation is binding on the State Government and the State Government would ordinarily be expected to heed and comply with such recommendation. In other words, it is contended that in a given case, where the School Tribunal makes recommendation under Sub-section (3) of Section 11 of the Act, while disposing of the appeal or even thereafter, the recommendation will have to be complied with by the State Government as if it is in the nature of direction, unless there are special reasons.
7. The next decision relied upon by the learned counsel is reported in Kapildeo v. State of Bihar . Reliance has been placed on the Head-note (B) of the said decision of the Apex Court to contend that power to punish for contempt is for maintenance of effective legal system. Although contempt proceeding is not a substitute for execution proceedings, though at times that purpose may be achieved. This decision has been cited to counter the view taken by Justice D.K. DESHMUKH in the judgment reported in that since, effective remedy has been provided under the Act, the employee is expected to exhaust the said remedy before initiating the action under Contempt of Courts Act.
8. Mr. De has, in his usual fairness, cited the decision of the Apex Court reported in R. N. Dey v. Bhagyabati Pramanik and Ors. , particularly headnote (B) and (C) thereof. The Apex Court in the said decision has held that if the Decree Holder has not taken any steps towards executing the decree, he should not be encouraged to invoke contempt jurisdiction of the Court only because the decree has not been satisfied.
9. On the other hand, the sheet-anchor in support of the stand taken on behalf of the State Government, Mr. Bhushan Gawai, the learned Government Pleader has placed reliance on the latest decision of Justice D.K. DESHMUKH reported in Mohammad Saleem 's case (supra). According to him, this decision has correctly laid down the well settled legal position that if effective remedy for enforcing an order passed by the School Tribunal is available, the High Court should be slow to entertain contempt petition, though the jurisdiction of the High Court to initiate contempt proceedings in an appropriate case under Section 10 cannot be said to have been ousted. The learned Government Pleader rightly points out that if effective mode for enforcing the order is available; and unless the Petitioner shows that such a mode was exhausted, the Court should be slow in entertaining the contempt action. The learned Government Pleader has fairly stated that although the said decision enunciates that effective remedy of execution of the direction passed by the School Tribunal is available, however, it would be appropriate to explore the possibility of what can be the effective mode for execution of the direction issued by the School Tribunal so as to ensure that the employee is put to minimum hardship and at the same time the directions issued by the School Tribunal can be given effect to with utmost despatch.
10. It is seen that Section 11(2) of the Act provides the nature of directions that can be passed by the School Tribunal. As per Sub-section (3) of Section 11, the recommendation made by the School Tribunal while disposing of the appeal or even thereafter would be binding on the State Government and the State Government is expected to comply with the said direction. What, however, seems to be lacking in the said provision is that no outer limit has been fixed by the Legislature for complying with the recommendation of the School Tribunal. It is, however, well settled that when no limitation is provided for, then the authorities, who are under an obligation to comply with the direction, by virtue of Sub-section (3) of Section 11, are expected to act upon the recommendation and comply with the same within a reasonable time. The question, therefore, which arises is as to what would be the reasonable time. To overcome this difficulty, the learned Government Pleader was requested to take instructions from the State Government as to in its perception what would be the reasonable time for the State machinery to act upon the recommendation or direction of the School Tribunal. In pursuance to the said request, the Government Pleader has taken instructions and placed on record the stand of the State Government. The stand as reflected in the statement which has been filed on record, which is reproduced thus:
"That the appellant before the learned School Tribunal shall inform the concerned authorities of Education Department i.e. Education Officer, Deputy Director, etc. About recommendations of the learned School Tribunal under Section 11(3) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1997 by supplying the copy thereof. After expiry of the time given by the learned School Tribunal to the management of private school for complying with the judgment, the appellant before the learned School Tribunal will inform about the compliance/ non-compliance of the said judgment to the authorities of the Education Department. If the judgment of the learned School Tribunal, so far as payment of back wages is concerned, is not complied with by the management of the private school within stipulated time granted by the learned School Tribunal, then the authorities of the Education Department shall deduct the amount available in non-salary grant of the management with the department and shall pay the same directly to the concerned appellant within the period of six months.
If the amount of non-salary grant is found not due to the management, then the concerned authorities of the education department shall communicate about the same to the appellant within a period of one month so as to enable him to take appropriate steps. The amount of non-salary grant which will become due and available for the payment to the concerned management subsequently shall be paid to the concerned appellant directly by the authorities of Education Department as and when due and available till the arrears of back wages as directed by the learned School Tribunal are completely paid.
2. If compliance of more than one judgment passed in favour of the employees of a private school or of the same management by the learned School Tribunal so far as payment of back wages is required to be done, then the authorities of Education Department will deduct the amount of non-salary grants and shall pay the same to the concerned employees on prorala basis. Same procedure shall be adopted in respect of the non-salary grants which will become due and available for payment to the concerned management subsequently, till the arrears of back wages as directed by the learned School Tribunal are completely paid to the employees.
3. In so far as the promotion/reinstatement of employee of the private school as per the judgment of learned School Tribunal is concerned, the Deputy Director of Education on receipt of intimation alongwith judgment of the learned School Tribunal shall direct the management of private school to comply with the said direction immediately. If in spite of such direction, the management fails to comply with the same, then the Deputy Director shall take the action of reduction or withdrawal of grant-in-aid admissible to the management as per provisions of Rule 97.1 and 97.2 of the Secondary School Code.
4. If the post on which the reinstatement is granted, is vacant and if the said post sanctioned and approved by the authorities of the Education Department for being eligible for grant-in-aid, then in case of failure to reinstate the concerned employee by the management of private school, the authorities of the Education Department shall release salary of such employee who is awarded reinstatement by the School Tribunal, on his intimation that the management has not permitted him to join duty, alongwith either a copy of joining report duly acknowledged by the management or postal acknowledgment of the communication addressed by the employee to the management, intimating his intention to join the duties."
The abovesaid stand taken by the State Government is accepted and has been made part of this order and would be deemed to be the direction issued by this Court, in toto. Needless to observe that the Offices of the State Government shall give effect to the above procedure in each case which is brought before them in its letter and spirit.
11. On the basis of the said stand it is possible to hold that when recommendation is made by the School Tribunal and if the same is brought to the notice of the State Government or its agency, it is the duty of the authority to forthwith respond to the said recommendation. In case, the school in question is not entitled for grants from the State Government, it would be imperative for the authority to immediately inform the employee concerned that the school is not amenable to any grants. Such intimation should be sent within one month from the receipt of the recommendation or from the date on which the recommendation is brought to the notice of the authority. On the other hand, if the school is amenable to grants from the State Government and in the event no grants are due and payable, even then the authority should immediately bring this fact to the notice of the employee concerned, preferably within a period of one month from the receipt of the recommendation or from the date on which the authority was apprised of the said recommendation. However, if any non-salary grants are available and which are due and payable to the school in question, it would be the duty of the authority to forthwith deduct the amount payable to the employee as per the order of the School Tribunal and make it over to the employee directly. It is stated that normally non-salary grants are disbursed to the schools twice a year in the months of March and October; and as such the payment that has to be made to the employee should be commensurate with the said period. In any case, the authority should immediately inform the employee concerned the steps which it proposes to take in the matter and the reasonable time required for the same. In the event the non-salary grants due and payable to the school in question are insufficient, in that case the authority shall pay the amount which is immediately due and payable and the balance amount be paid in the following period when the grants become due and payable. This process may continue till the direction issued by the School Tribunal is fully complied with.
12. By taking recourse to the procedure as reflected in the stand taken by the State Government, the provisions of Sub-section (3) of Section 11 would become meaningful and effective in literal sense. It is only when the Education Officer or the concerned officer of the State Government fails to act in the manner aforesaid, that the question of invoking the contempt jurisdiction of this Court would arise. As aforesaid, in the event the above mentioned procedure is uniformly followed, there would be certainty in the approach and each employee who has succeeded before the School Tribunal would be put to notice as to when the amount would become due and payable to him. Moreover, it can become part of the direction or recommendation, as the case may be, that would be issued by the School Tribunal in each case. Only then it can be said that an effective machinery and self-contained machinery is made available to the employee; lest they are required to run from pillar to post by approaching the School Tribunal, the Education Officer/State Government and in some cases this Court, for compliance of directions of the School Tribunal.
13. The aforesaid procedure would, however, only take care with regard to the direction to be issued by the School Tribunal relating to back wages to be paid to the successful employee. However, with a view to ensure that the direction issued by the Tribunal with regard to the reinstatement of the employee is concerned, the authorities are obliged to initiate appropriate proceedings against the school in question, including action for reduction or withdrawal of grant-in-aid or withdrawal of recognition/approval as the case may be. This course would surely act as a deterrence for the schools and the managements who take recalcitrate attitude only with a view to harass the employee who has succeeded before the School Tribunal, with a view to prolong the agony of the employee with a fond hope that the employee should eventually cave-in to their ulterior design.
14. In my view, Sub-section (4) of Section II is a mandate which restates the principle that it is obligatory on the part of every management to scrupulously comply with each of the directions issued by the Tribunal. Sub-section (4) of Section 11 envisages the time period within which the direction is to be complied by the management. Once the said period is over, and yet the direction is not complied with; and if this fact is brought to the notice of the concerned authority, it would be the duty of that authority to take recourse to the appropriate measures as aforesaid.
15. It is observed that in most of the cases the stand taken by the Education Department in contempt proceedings is that the School Tribunal has issued directions against the management and the Education Department or the officers of the Education Department are in no way concerned with the said direction so as to become liable to be prosecuted for the action under the Contempt of Courts Act. Since by this judgment it is held that the authorities have been invested with ample power under the scheme of the Act to ensure that each of the directions issued by the School Tribunal is complied without any delay, the said power is, therefore coupled with the duty of the concerned officer to ensure that each of the directions is so complied with. If in a given situation it is brought on record that there was laxity in the approach of the concerned officer of the State Government, in such a case, the inevitable effect would be to proceed against the officer for having committed contempt of Court within the meaning of the provisions of the Contempt of Courts Act or for that matter, under the provisions of Article 215 of the Constitution of India. It is only by providing such safeguard that the machinery which is provided for in the Act, can be said to be an effective machinery. This would essentially eliminate the hardship which is faced by the litigating employee, who, in most cases, is out of job, but fighting against the mighty management and without any source of livelihood. Besides that, this Court would be relieved of the anxiety in deciding the contempt , petitions which have engaged the attention of this Court and the number of such petitions are increasing day by day. In other words, the above procedure would relieve this Court of the increasing litigation on this front, so that time saved by the Court on these matters can be invested for effective dispensation of justice on other relevant and urgent issues. In my view, if there is increase in the number of contempt action, the efficacy and the deterrence of these proceedings would be marred. As observed by the Apex Court in Om Prakash Jaiswal v. D.K. Mittal , any act or mission which undermines the dignity of the Court is viewed with concern by the society and the Court treats it as an obligation to zealously guard against any onslaught on its dignity. The jurisdiction to punish for contempt is summary but the consequences are serious. That is why the jurisdiction to initiate proceedings in contempt as also the jurisdiction to punish for contempt in spite of a case of contempt having been made out are both discretionary with the Court. Jurisdiction in contempt shall be exercised only on a clear case having been made out. In the circumstances, if there is failure to comply with the aforesaid procedure, without any just or sufficient cause, that would be a case where this Court will have to invoke the action under the provisions of Contempt of Courts Act, for maintaining the efficacy of administration of justice.
16. Besides the aforesaid, the remedy available to the employee concerned under Section 13 can always be resorted to. By the Amendment Act, Maharashtra Act No. 17 of 1995, penalty has been sumptuously, increased. Multi-pronged action under the provisions of the said Act would act as a great deterrence for such managements who intend to disobey the directions issued by the School Tribunal. Once the employee concerned has made representation to the concerned authority of the State Government, it would be open to the employee to institute complaint before the appropriate Court against the office bearers of the management within the meaning of Section 13 of the Act. Learned Government Pleader has placed reliance on a decision of the Apex Court reported in Municipal Corporation, Ludhiana v. Commissioner of Patiala Division, Patiala to contend that since no formula has been prescribed by Section 13 of the Act, namely, as to the forum before which the proposed complaint has to be filed, such a complaint would be maintained only in a criminal Court of competent jurisdiction. He has also referred to Sub-section (2) of Section 4 of the Code of Criminal Procedure as to which forum would be competent to try the said offence under Section 13. Reliance was also placed on Clause (n) of Section 2 of the Code, which defines the offences, which would include the offence punishable under Section 13 of the Act. In the circumstances, it would be appropriate to conclude that, the employee, besides approaching the officer of the State Government, who is overall in charge of the affairs of the School and obliged to ensure that the directions of the School Tribunal are complied with, shall lodge a formal complaint before the Criminal Court of competent jurisdiction to initiate action under Section 13 of the Act against the office bearers of the management of the school. When the State machinery is involved, in all these matters, it is only then the possibility of management of the school avoiding to act upon the direction with utmost despatch can be obviated. Such a multi-pronged action alone would result into effective measure for enforcing the directions given by the School Tribunal. Only then the object and purpose with which the said enactment was legislated can be achieved. There is no doubt that the enactment is a welfare legislation for the protection of employees in Private Schools.
17. It is made clear that the aforesaid procedure shall not only apply to the directions which would be passed by the School Tribunal in future but would also apply with full force to the cases where the Tribunal has already issued such directions in the 'past and the same have remained uncomplied with so far. In all such cases it would be open to the affected/aggrieved employees to approach the concerned officer of the State Government for getting directions enforced by taking recourse to the above measures, including filing of prosecution under Section 13 of the Act.
18. Now, coming to the facts of the present case, there is no dispute that the Petitioner had issued notice to each of the Respondents including the Respondent No. 3, but no steps were taken to comply with the directions of the School Tribunal. Now an affidavit has been filed by the Respondents 1 and 2 that the Petitioners were reinstated on November 28, 1998, but their services have been terminated on June 30, 1999, pursuant to the letter of the Deputy Director of Education dated May 18, 1999, on the ground that their posts have not been approved for want of workload available with the Respondent Management. Whether the said action is legal and warranted is not the issue in these proceedings and it will be open to the Petitioners to pursue their claim in the manner provided for in law. However, instead of taking any action against the Respondents for the present, it would be appropriate that the matter be referred to the Respondent No. 3 so that he would take appropriate measures in the tight of the above observations. I hope and trust that the Respondent No. 3 would take necessary steps as per this decision so as to provide full, complete and effectual remedy to the Petitioners, who have been waiting for execution of the directions passed by the School Tribunal as back as October 30, 1998.
19. With the above said observations this petition is disposed of. No order as to costs.