ORDER
R.G. Deshpande, J.
1. The present petitioner approached the learned Presiding Officer, School Tribunal, Aurangabad, vide Appeal No. 43 of 1992 challenging his termination. The learned Presiding Officer by his order dated 30th August, 1993, allowed the appeal and passed the following order :
ORDER
“1. The appeal is allowed with costs.
2. The impugned order of oral termination on 23-4-1992 by the respondent No. 2 is hereby set-aside.
3. The respondents 1 and 2 are hereby directed to reinstate the appellant with backwages from the date of termination within 40 days.
4. The respondents 1 and 2 are further directed to pay him arrears of pay and allowances from the date of termination till he is reinstated within 3 months, failing which it is recommended to the Government that the equal amount be deducted from the grant due or the grant that may be due to the management, in future, and be paid to the appellant direct.
5. The respondent No. 2, the Head Master shall pay cost of Rs. 300/- to the appellant.”
After passing of the aforesaid order, it is clear from the record that the management filed review application before the same Tribunal, wherein the matter was compromised and necessary compromise purshis was filed by both the parties.
2. After hearing the parties, the learned Presiding Officer of the School Tribunal passed an order in terms of compromise. However, in spite of that, the management appeared to have resiled from its own stand and flatly refused to comply with the order, which has prompted the present petitioner to approach this Court through this contempt petition.
3. The matter was listed before the Division Bench of this Court for admission and the Division Bench on 6-8-1997 issued “notice” to the respondents and on 28-10-1997 ordered the matter to be heard by the Single Judge. Thereafter the matter was listed on couple of occasions. However, it was adjourned for one or the other reason.
4. Today the matter is got circulated by Shri Chapalgaonkar, learned Advocate and he insisted that if “Rule” is not issued in the matter there is every possibility that his case will be hit by the provisions of section 20 of the Contempt of Courts Act, 1971. Shri Chapalgaonkar, therefore, insisted for hearing the matter for admission.
5. Shri S.R. Barlinge, learned Advocate for the respondents is present and heard. Shri R.S. Deshmukh, learned A.P.P., for the respondent State.
6. Since the Division Bench of this Court has on 6-8-1997 issued “notice”, I do not feel that there is any further necessity for hearing the matter for admission as this Court is of the view that there is no stage like “Notice before Admission” in the contempt proceedings and further that once “notice” is issued, it clearly means that the matter is admitted for final hearing or we may say that the Rule is issued in the matter. This Court is of the opinion that “Notice” issued is said to have been issued under Rule 8(1) of the Bombay High Court Appellate Side Rules (to regulate the proceedings for contempt under Article 215 of the Constitution of India and the Contempt of Courts Act, 1971). Since but for “Notice” there is no other order provided under the Rules such as “notice before admission”, the question of issuing again any further order of either “Rule” or “Admit” in the instant matter does not arise.
7. When I have observed above that after issuance of the notice or after passing of the order of, “Notice”, there does not appear to be any further reason to issue again an order of “Rule” or “Admit”. I would like to refer to certain provisions of the Rules referred to above.
8. Rule 8(1) of the Rules directs that every petition or Reference under Rule 5(b), (c), (d) or (e) on its filing shall be forthwith posted before the Court for preliminary hearing and for orders as to issue of notice and 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: This clearly means that the moment the petition comes before the Court on the first date of hearing it is for the Court to find out whether the matter needs further probe into the same by calling upon the alleged contemnor for finding out whether contempt has been committed or not. Sub-rule (2) of Rule 8 provides for securing presence of the alleged contemnor if necessary by issuing a bailable or non-bailable warrant. Rule 9 of the Rules deals with the form in which the notice is to be issued. That rule further makes it incumbent on the person noticed to remain present before the Court unless otherwise ordered on the date fixed for hearing of the proceedings and he is supposed to remain present during hearing till the proceeding is finally disposed of by the order of the Court. This clearly indicates that the Court can be said to have applied its mind to the facts of the case and only after having been satisfied, the order of “Notice” under sub-rule (1) of Rule 8 of Rules is presumed to have been passed. It is further clear from the above-said provision that even on that very first date of hearing, if necessary and if the Court is satisfied from the contents of the petition, the Court can dismiss the contempt petition.
9. Rule 10 of the rules directs the person so noticed or gives a chance to the person so noticed and if he so desires, to file his reply by way of an affidavit within the stipulated time of 14 days from the date of service of notice or on such other date as the Court may fix. Rule 11 specifically forbids the alleged contemnor from filing any additional affidavit once he files the affidavit in accordance with Rule 10. However, if the Court so permits, then the alleged contemnor may file an additional affidavit if he so desires.
10. If these rules are read together it is abundantly clear that the first notice, which is said to have been issued under Rule 8, virtually amounts to admission of the matter for final hearing by the Court and it is, therefore, not necessary again to place such a matter for admission or issuing an order of Rule before the Court.
11. I have already mentioned Form I to which I have already made reference above. If we go through the contents of Form No. I it would make the position still further clear as the very first paragraph of the form specifically is as under :—
“…..
Whereas upon considering the material before it, Honourable Court is satisfied that there exists a prima facie case for issuance of a notice for considering action under Contempt of Courts Act against you;
…..”
From the above contents, it is clear that the very notice is issued only after the Court considers the material before it and further the Court was satisfied as regards existence of a prima facie case for issuance of that notice, or considering an action under the Act. Thus, there remains hardly any doubt that when the Court issues notice in accordance with Rule 8 of the Rules, it is presumed to be a notice issued after thorough application of mind by the Court and after the Court has come to the conclusion that the matter needed further trial of the alleged contemnor.
12. The subsequent rules from Rules 12 to 21 are not material for the present purposes. However, Rule 22 can be of somewhat assistance in the matter. As per this rule, any person who is charged with the contempt may file an affidavit in support of his defence on the date fixed for his appearance or on such other date, as may be fixed by the Court and if such person pleads guilty to the charge, his plea shall be recorded and the Court may, in its
discretion, convict, him thereon. However, if such person refuses to plead or does not plead or claims to be tried or the Court does not convict him on his plea of guilt, it may determine the matter of the charges either on the Affidavits filed or after taking such further evidence as it deems fit. This clearly means that when contemnor appears and files his affidavit, on the basis of notice issued to him, then the matter has to be finally disposed of in accordance with the provisions of Rule 22 of the Rules.
13. The contend of Form 1 above further make it clear that immediately an order of, “Notice” in Form I is issued to the alleged contemnor calling upon to show cause as to why the action under the Contempt of Courts Act should not be taken against him and on his failure to appear, as. directed in that notice, the notice says as to why on his failure the Court should not proceed to pass such order as the Court may deem fit and proper. It is, therefore, absolutely clear that neither the Act nor the Rules provide two separate orders in a contempt petition such as “Notice before Admission” and “Admission” . Taking overall view of the matter, this Court is, therefore, of the view that the word “Notice” used in Rule 8 of the Rules means “admission of the matter or issuance of Rule” at that stage itself by the Court and there cannot be again any further stage of listing the matter for admission of the contempt petition.
14. It would be appropriate at this stage to specifically observe that the High Court exercises its powers as regards inquiry and trial in the contempt matters either under the provisions of Articles 215 of the Constitution of India or under section 17 of the Contempt of Courts Act. So far as the powers under Articles 215 of the Constitution of India are concerned, it is inherent power with special jurisdiction. If a matter is pertaining to the contempt of the order of the High Court itself, which is passed under its original jurisdiction then the High Court exercises the powers under Rule 19(a) of the Contempt of Courts (Bombay High Court) Rules, 1975 and in that case, it would be always in the form of a notice of motion and the rules applicable to the notice of motion would apply mutatis mutandis to all such petitions. Any such notice of motion, it is always supposed, shall contain the specific charges. In a matter reported in 1993 Mh.L.J. 1331 Osman Gani v. State of Maharashtra, this Court has taken a view that the notice of motion itself amounts to taking cognizance by the Court and no separate notice to show cause is issued. This clearly means that the moment the notice is issued by the Court in any contempt matter then there would not remain any further necessity to issue Rule again.
15. However, the High Court has ample powers and which are consistently exercised by the Court by way of convention and procedure followed by it that if the High Court wishes to call upon a party concerned as to why contempt petition against him should not be admitted for further consideration in that case, it is always open for the High Court to pass the order specifically wording it as “notice before admission” which would mean that even before issuing the notice under Rule 8(1), the Court would like to have certain clarification from the party concerned, only on the basis of which, the Court may decide as to whether the notice under Rule 8(1) is necessary or not.
16. This Court would like to refer to a decision given by the Division Bench of this High Court in
the matter of Golchha Advertising Agency v. State of Maharashtra. In that decision the High Court has dealt with two different stages in the contempt matter. The first stage being issuance of notice and second of issuing either Rule or order of admission. As per the Division Bench, the issuance of notice before admission is not initiation of proceedings. This was the observation made by the Court while dealing with the provisions of section 20 of the Contempt of Courts Act as the matter related to limitation in that case. However, the Court specifically observed that the admission of the petition within one year of the alleged contempt mandated for exercise of contempt jurisdiction. In this case, we can clearly read the distinction between the two, which, in fact, in the opinion of this Court is that if a notice is issued the presumption is that the Court has applied its mind and calls upon the other side as to why he should not be held guilty of contempt. This clearly means that the matter is considered and admitted by the High Court for hearing after due application of mind to the facts of the case. In the case cited supra, it is clearly observed that the order of, “notice before admission”, would not save the limitation which is prescribed under section 20 of the Contempt of Courts Act, 1971.
17. This Court is, therefore, of the firm view that unless and until the High Court passes a specific order of notice before admission, till then it will have to be presumed that passing of an order by the High Court in one word “Notice” clearly means that the matter is “admitted” or “Rule” is issued which would either be made absolute or will be discharged depending on the presentation of the case by the alleged contemnor.
18. In the instant matter, therefore, the Division Bench’s order, “Notice”, means that the matter is admitted or Rule is issued in the matter and cognizance is taken by the Court on the very same day when the order of “notice” is passed.
19. In view of the above observations, it is futile for the learned Advocate for the petitioner to apprehend that unless the matter is either admitted or Rule is issued he is likely to be caught within the mischief of section 20 of the Contempt of Courts Act, 1971. The apprehension entertained by the petitioner is totally unfounded.
20. In view of what has been observed above, this matter is not required to be admitted again. The matter is presumed to have been admitted and same shall come up for hearing in regular course.
21. Order accordingly.