Rafia Sultana vs Mohd. Osman on 12 September, 2011

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                  
                   BENCH AT AURANGABAD.

             CONTEMPT POETITION NO.464 OF 2010
                             IN
               WRIT PETITION NO.2177 OF 2009.




                                 
     Rafia Sultana d/o Iqbal Ahemed Khan,
     age 42 years, occu. service,
     as Asstt. Teacher, Madarse Aamena Urdu,




                        
     Primary School, Nanded r/o
     H.No.5, Block No.24, Labour Colony,
             
     Nanded.                           ...PETITIONER.

              VERSUS
            
     1. Mohd. Osman s/o Mohd. Ismail,
     age major, occu. nil.
     r/o c/o Rahim Bhai Engineer,
     Parbhani, Tq. & Dist.
      

     Parbhani.

     2. The President
   



     Mohd. Osman s/o Mohd. Ismail,
     Madarse Noorul Uloom Edu. Society,
     Nanded,
     c/o Madarse Amina Girl Urdu Primary School,





     Makdom Nagar, Nanded,
     Tq. & Dist. Nanded.

     3 Sow. Salma Begum w/o Sk. Jahur,
     age major, occu. service,
     r/o c/o Madarse Aamena Urdu Primary School,





     Makdom Nagar,
     Nanded,
     tq. & Dist. Nanded.

     4 The Education Officer (Primary),
     Zilla Parishad,
     Nanded, Tq. & Dist. Nanded.        ...RESPONDENTS.




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                            ...




                                                                 
     Shri G.R. Syed, Advocate for petitioner.
     Shri D.R. Kale, AGP for State.
     Shri S.P. Chapalgaonkar, Advocate for R.Nos.1 &




                                      
     2.
     Shri V.S. Panpatte, Adv. for R.No.4.
                            ...




                                     
                                     CORAM: S.S. SHINDE,J.

12th September, 2011.

ORAL JUDGMENT:

1.

This contempt petition alleges contempt /

willful disobedience of the order passed by

this Court in Writ Petition no. 2177/2009 on

12th November, 2009. In para 3 of the said

order, the undertaking given by the alleged

contemnor, Mohmmad Osman Mohmmad Ismail is

recorded by this Court.

2. The petitioner herein was appointed on

16th June, 1993 as Assistant Teacher in Madarse

Aamena Urdu Primary School , a primary school

run by the respondent No.2 herein. It is the

case of the petitioner that she was

subsequently promoted as Head Mistress. It is

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further case of the petitioner that on 20th

November, 2007, all of a sudden, the

respondent No.1 issued letter to the

petitioner and informed that, as per the

resolution of the society passed on 19th

November, 2007, she was reduced in rank from

the post of Head Mistress to the post of

Assistant Teacher and, petitioner was directed

to hand over the charge of post of Headmaster

to the respondent No.3.

. On 11th February, 2007, the petitioner

filed appeal u/s 9 of the Maharashtra

Employees of Private Schools (Conditions of

Service) Regulation Act, 1977 (for short,

referred to as “MEPS Act”), before the School

Tribunal at Latur. The School Tribunal

dismissed the said appeal. Aggrieved by said

judgment and order, the petitioner filed Writ

Petition No. 4627/2008 before this Court. By

order dated 08.09.2008, this Court was

pleased to allow the said writ petition and

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remanded the matter back to the School

Tribunal, Latur.

. After remand, the School Tribunal, Latur

allowed the appeal filed by the petitioner

herein on 18.2.2009 and directed the

respondents No.1 and 2 to reinstate the

petitioner herein i.e. appellant therein, on

the post of Head Mistress with continuity of

service from 20.11.2007.

3. Being aggrieved by the judgment and order

passed by the School Tribunal, Latur in Appeal

No.75/2007, the respondents NO.1 and 2 herein

preferred Writ Petition No.2177 of 2009 before

this Court. This Court on 12th November, 2009

issued Rule and continued the interim relief

in terms of prayer clause `C’ of the Petition,

which was granted earlier. While hearing the

above mentioned writ petition, the grievance

was made by the respondent No.4 in the writ

petition i.e. petitioner herein, that she is

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not being paid the salary of Assistant Teacher

also. This Court in para 3 of the order

passed in Writ Petition No.2177 of 2009

recorded the statement of the Advocate

appearing for the alleged contemnor. Para 3

of the said order reads, thus:

“3. Grievance is made by learned Counsel
for respondent NO.4 that she is not being
paid salary as Assistant Teacher also.
Mr. Dhorde, learned Counsel for the

petitioner states that the unpaid amount
of salary would be disbursed within six
weeks from today and the management will
continue to pay to respondent No.4 salary

admissible to the post of Assistant
teacher.”

4. This contempt petition has been filed by

the petitioner since the alleged contemnor

respondent No.1, who is also head of

respondent No.2, did not comply with the

undertaking given before the learned Single

Judge of this Court through his Advocate. The

salary of the petitioner remained unpaid.

Therefore, this contempt petition has been

filed.

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5. When this contempt petition was heard on

15th December, 2010, this Court issued notices

to the respondents No.1 and 2, which was made

returnable on 9th February, 2011. Since the

service of notice was awaited, the matter was

adjourned to 17th February, 2011. On

17.02.2011,ig this Court heard

Counsel for the respective parties and passed
the learned

following order :

“The respondent’s Advocate sought
adjournment. Adjournment granted as a last

chance. The respondents shall file
affidavit in respect of compliance of the
order.

3. Stand over to 4th March, 2011.”

In spite of this order, no affidavit-in-

reply was filed by the respondents till 4th

March, 2011. The affidavit on behalf of

respondent nos. 1 and 2 came to be filed on

7th March, 2011.

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6. From careful reading of the said

affidavit, the sum and substance of the

contention of the alleged contemnor appears to

be that due to unavailability of the necessary

record, and since the record was with the

petitioner, he could not take steps to submit

unpaid salary bills of the petitioner to the

Education officer (Primary), Zilla Parishad,

Nanded.

7. In reply to the affidavit filed by the

alleged contemnor, the petitioner has filed

rejoinder affidavit on 6th April, 2011. On

4th May, 2011, the matter was taken up for

hearing by this Court, on said date this Court

directed the respondents No.1 and 2 to remain

present on the next date of hearing.

Thereafter, presence of the respondent nos. 1

and 2 was never dispensed with.

. On 15th June, 2011, the matter was again

listed for hearing, affidavit on behalf of

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respondents No.1 and 2 was tendered across the

Bar, and said was taken on record.

. It was stated in para No.1 of the said

affidavit that the alleged contemnor will

submit bills regarding unpaid salary of the

petitioner within three days from 15.6.2011 to

the
respondent No.4 Education

(Primary), Zilla Parishad, Nanded and he will
Officer

take necessary steps to get the said amount

disbursed by Respondent No.4 on or before

24.6.2011 and in the event the said amount is

not disbursed before 24.6.2011, he will

deposit the said amount within one week from

24.6.2011 in this Court.

. After perusal of the said affidavit dated

15th June, 2011, this Court by speaking order

adjourned hearing of the contempt petition to

4th July, 2011. However, it appears that the

matter was not taken up for hearing on the

said date and therefore, the learned Counsel

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for the petitioner mentioned the matter on 7th

July, 2011 and same was then listed on 11th

July, 2011.

8. On 11th July, 2011, this Court heard the

learned Counsel appearing for the petitioner

and also to the learned Counsel appearing for

the respondents No.1 and 2 at length. This

Court passed the following order:

“1. Heard the learned counsel
appearing for the petitioner and learned

counsel appearing for respondents No.1
and 2. The learned counsel appearing

for respondents No.1 and 2 submits that,
in spite of his sincere efforts to
impress upon the respondents No.1 and 2
to comply the orders of this Court, they

are not listening him. The learned
counsel further submits that, he prays
discharge from the matter. He has also
sent notice to respondents No.1 and 2 by
registered post A.D., copy of which is
placed on record.

2. This Contempt Petition was
heard by this Court on 15.6.2011. The
affidavit was filed on behalf of
respondents No.1 and 2 by one Mr.
Mohammad Osman s/o Mohd. Ismail, stating
therein that he will submit the bills
regarding unpaid amount of salary to the
petitioner within three days from

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15.6.2011 to the respondent No.4 –

Education Officer (Primary), Zilla
Parishad, Nanded and he will take steps

to get the said amount disbursed by the
respondent No.4 on or before 24.6.2011.
It is further stated in para No.2 of the
said affidavit that, in the event the
said amount is not disbursed before

24.6.2011, he will deposit the said
amount within one week from 24.6.2011 in
this Court.

It is admitted position that,
no such amount has been deposited in the

registry of this Court. The learned
counsel for the petitioner submits that,
the bills which are submitted by the
respondent to the Education Officer are

returned back by the Education Officer
with remarks that the bills are not in
accordance with the Sixth Pay
Commission.

3. This Contempt Petition is filed

alleging disobedience of the order
passed by the learned Single Judge of
this Court on 12.11.2009 in Writ
Petition No.2177/2009. After

considering the grievance of the
petitioner in the said Writ Petition,
and after hearing the respondents, this
Court, in para No.3 of the order dated
12.11.2009, held:

“3. Grievance is made by
learned counsel for respondent
No.4 that she is not being
paid salary as Assistant
Teacher also. Mr. Dhorde,
learned counsel for the
petitioner states that the
unpaid amount of salary would
be disbursed within six weeks

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from today and the management

will continue to pay to
respondent No.4 salary

admissible to the post of
Assistant Teacher.”

4. In spite of assurance given to

this Court in aforesaid Writ Petition by
the respondents No.1 and 2 that the
unpaid amount of salary would be
disbursed within six weeks to the

petitioners from the date of passing of
the order by the learned Single Judge on

12.11.2009, no amount towards unpaid
salary was disbursed and that gave rise
to filing this Contempt Petition. As
stated earlier, this Contempt Petition

was heard by this Court on 15.6.2011
when the respondent No.1 filed affidavit
on behalf of respondents No.1 and 2 on
oath that in case no unpaid salary is

paid to the petitioner before 24.6.2011
by the Education Officer, he will

deposit the amount in the registry of
this Court within a week from 24.6.2011.
As stated earlier, the respondents No.1
and 2 have not complied the statement

made before this Court in the month of
November 2009 or they have not complied
the assurance given to this Court by
filing affidavit. Hence, this is a case
of aggravated contempt. The respondent
Nos.1 and 2 have chosen to remain

absent. Issue non-bailable-warrant to
the respondents No.1 and 2 returnable on
27th July 2011. The Superintendent of
Police, Parbhani to see that the non-
bailable warrant issued by this Court is
executed on the respondents No.1 and 2
and they are produced before this Court
on 27th July 2011 at 10.30 a.m. by the
concerned Police Station Officer.

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5. However, it will be open
for the respondents No.1 and 2 to

file appropriate application, in
case they deposit entire amount
towards unpaid salary to the
th
petitioner on or before 15 July
2011, to apply for dispensing with

their presence or for recalling the
order of issuance of non-bailable
warrant if the said warrant is not
already executed on them.”

                              
            By   
     Superintendent
                   order    dated

                             of
                                     11th

                                    Police,
                                               July,

                                                     Parbhani
                                                             2011,        the

                                                                          was
                

directed to execute non bailable warrant on

the alleged contemnor and produce him before

this Court. The alleged contemnor chose to

remain absent on 11th July, 2011 and,

therefore, this Court was constrained to issue

non bailable warrants against the respondent

nos.1 and 2. There was also non compliance of

the affidavit given by the alleged contemnor

on 15th June, 2011 and the Advocate for the

contemnor made a statement before this Court

that in spite of his sincere efforts to

impress upon the alleged contemnor to comply

with the orders of this Court, the alleged

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contemnor is not listening to him. The learned

Advocate appearing for the alleged contemnor

also prayed for discharge and also made a

statement that notice has been sent to the

alleged contemnor by Regd. Post A.D. for such

discharge from the matter.

9.
In the order dated 11th July, 2011 itself,

direction was given to the Superintendent of

Police to produce the respondent nos.1 and 2

i.e. alleged contemnor, on 27th July, 2011 at

10.30 a.m. In pursuance to the said order, it

appears that the Superintendent of Police made

sincere efforts to comply the order/direction

of execution of non bailable warrant on the

alleged contemnor. However, according to the

Superintendent of Police, Parbhani, the

alleged contemnor was absconding and is not

traceable.

. The Superintendent of Police, Parbhani

Smt. Maithali Jha, filed detailed affidavit

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on 5th August, 2011. In para 4 of the said

affidavit, it is stated that she had taken

steps for compliance of the order passed by

this Court on 11.07.2011. She formed two

squads consisting of Police Inspector, Police

Sub Inspector and other ten police personal

and specific directions were given to the

squads ig established for

execution of non bailable warrant that they
the purpose of

should take all efforts and arrest the

respondent No.1 and produce him before this

Court. It further appears that the inquiry

was made with the nearest relatives of the

alleged contemnor on 26.6.2011. However, the

police officers could not get any useful

information from the nearest relatives. One

person namely Sk. Jafar Sk. Chand was also

known to the alleged contemnor and he was

asked to inform the whereabouts of the alleged

contemnor. However, he was not able to tell

the whereabouts of the alleged contemnor.

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. It further appears that the police squad

collected information of the mobile phone of

the alleged contemnor and then they tried to

find out the location and whereabouts of the

alleged contemnor. They also inquired with

the staff of Aamena Urdu Primary School school

on 29th July, 2011 and they got some

informationig that the alleged

contact one of the staff members namely
contemnor did

Mr.

Abdul Hai from his mobile phone. Then the

squad proceeded to find out the location of

the alleged contemnor. It further appears

that the department has taken all the efforts

to trace out the alleged contemnor. However,

they could not succeed in their attempt since

the alleged contemnor was absconding and was

not making himself available to the

jurisdiction of this Court. Further time was

granted to the Superintendent of Police,

Parbhani on 27th July, 2011 till 1st August,

2011. However, further attempt of the police

department to trace out the alleged contemnor

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failed.

10. The Superintendent of Police remained

present before this Court on 8th August, 2011.

On her request further time was granted and

matter was kept on 11th August, 2011. On said

date Advocate Mr.P.N. Kalani appeared for the

alleged contemnor and tried to submit that,

the alleged contemnor is ready to deposit some

amount. However, he was unable to tell the

whereabouts of the alleged contemnor and he

showed total ignorance about the whereabouts

of the alleged contemnor.

11. On 25th August, 2011, again the matter was

taken up for hearing and time was granted to

the Superintendent of Police, Parbhani. From

time to time, affidavits and documents are

produced on record showing that the police

authorities have made sincere efforts to

execute non bailable warrant issued by this

Court on Mohd. Osman S/o Mohd. Ismail.

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However, their efforts failed because the

respondent alleged contemnor was hiding

himself and was not traceable.

. On 6th September, 2011, the matter was not

on Board because on earlier date of hearing,

same was adjourned to 9th September, 2011.

     The       
            learned     AGP    mentioned

brought to the notice of this Court that,
the matter and

the

police department is successful in arresting

the respondent No.1 Mohd. Osman s/o Mohd.

Ismail – alleged contemnor and he is brought

before this Court. On mentioning by the

learned AGP and also the Advocate for the

petitioner, the matter was taken up at 4.30

p.m. Even, the Advocate for the alleged

contemnor was present. This Court on 6th

September, 2011 passed the following order:

“Not on board. Matter is mentioned
by learned A.G.P., taken on board.

2. Learned A.G.P. appearing for
the State makes a statement that, in

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pursuant to the orders passed by

this Court earlier, respondent No.1
Mohammed Osman s/o Mohd. Ismail is

arrested and brought before this
Court by the Police Inspector, Crime
Branch, Parbhani.

3. This Court on 11-07-2011

issued N.B.W. to respondent No.1
Mohammed Osman s/o Mohd. Ismail
which was made returnable on
27-07-2011. The Superintendent of

Police, Parbhani was directed to
execute the N.B.W. on the said

respondent and to produce him before
this Court on 27-07-2011.

. On 27-07-2011 it was reported
by the Superintendent of Police,
Parbhani that respondent Mohammed
Osman s/o Mohd. Ismail is hiding
himself and is not traceable. By

order dated 27-07-2011 further time
was granted to the Superintendent of

Police,Parbhani to take appropriate
steps to execute the N.B.W. The
matter was kept on 01-08-2011. On
01-08-2011 again it was reported by

the Superintendent of Police,
Parbhani that, in spite of their
sincere efforts, they were not able
to trace out the respondent. On
01-08-2011 this Court again directed

the Superintendent of Police,
Parbhani to continue search of the
respondent and produce him before
this Court on his arrest. The
matter was adjourned to 08-08-2011.

4. On 08-8-2011 also, the
Superintendent of Police, Parbhani
was not able to produce the
respondent before this Court.

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Therefore, further time was granted.

Matter was kept on 11-08-2011.
Again time was sought by the

Superintendent of Police, Parbhani
for execution of N.B.W. and for
producing the respondent before this
Court. However, Superintendent of
Police, Parbhani even after sincere

efforts could not arrest the
respondent, therefore, further time
was granted to Superintendent of
Police, Parbhani to take further

appropriate steps as permissible
under rules and report this Court

about such steps taken by filing
affidavit on the adjourned date.
Matter was adjourned to 09-09-2011.

5. Today, learned A.G.P.

mentioned the matter and
accordingly, the matter is taken on
board at 4-30 p.m. Learned A.G.P.

submits that, in pursuant to the
orders passed by this Court,

respondent Mohammed Osman s/o
Mohd. Ismail is arrested and he is
produced before this Court. Since
the Contempt Petition is fixed for

hearing on 09-09-2011 and if the
respondent – alleged contemnor is
left free, in that case, he may not
be traceable again. Therefore, in
the aforestated background, this

Court feel it appropriate that,
till the Contempt Petition is
heard, the respondent Mohammed
Osman s/o Mohd. Ismail is required
to be kept in Harsul Jail,
Aurangabad. Accordingly, it is
ordered that, respondent Mohammed
Osman s/o Mohd. Ismail should be
kept in Harsul Jail, Aurangabad
till 09-09-2011 and he should be

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produced before this Court on

09-09-2011 at the time of hearing
of the Contempt Petition.”

12. The matter was taken up for hearing on 9th

September, 2011. This Court extensively heard

the arguments of the learned Counsel for the

alleged contemnor and since Court time was

over, the matter remained part-heard and,

therefore, it was directed to be listed for

further hearing on 12th September, 2011 at

10.30 a.m. i.e. today. The alleged contemnor

was directed to be taken back to the Central

Prison at Harsool, Aurangabad on 09.09.2011.

On query by this Court to the learned Counsel

for the alleged contemnor that whether he is

ready to give assurance that, if the alleged

contemnor is released, in that case, alleged

contemnor will make himself available on the

next date of hearing. The reply of the learned

Advocate for respondent i.e. alleged contemnor

was that, he cannot give such assurance.

Therefore, this Court directed that the

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alleged contemnor should be taken back to

Central Prison, Harsool, with further

direction to produce him before this Court on

12th September, 2011 i.e., today.

Accordingly, the alleged contemnor is produced

before this Court and he is present in the

Court hall.

13. The

learned Counsel appearing for the

respondent nos.1 and 2 i.e. alleged contemnor,

submitted that there are no mitigating

circumstances to the respondent nos. 1 and 2

i.e. alleged contemnor. He is ready to

deposit the amount within two weeks. The

learned Counsel invited my attention to paras

2 and 3 of the affidavit filed by him and

submitted that the alleged contemnor has

tendered sincere apology. The learned Counsel

also invited my attention to paras 6 and 7 of

the affidavit filed by the alleged contemnor

and submitted that the petitioner did not hand

over the charge to respondent No.3 and as a

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result, necessary documents to prepare salary

bills were not available with the alleged

contemnor. It is further submitted that the

alleged contemnor was under impression that

respondent No.3 herein is responsible for

preparing the bills. He also invited my

attention to para 9 of the affidavit and other

documents

Education
ig and

Officer
the letter

and
addressed

submitted that,
to the

the

correspondence placed on record would make it

clear that the relevant record / documents

were not in possession of the alleged

contemnor so as to comply with the undertaking

given in the month of November, 2009 and,

therefore, he could not comply with the said

undertaking. The learned Counsel further

invited my attention to the fact that some of

the record was in the custody of the landlord,

the school premises were rented premises and

as a result of non payment of rent to the

original landlord, some of the record was

seized by the landlord and he was not ready to

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hand over the same to the management. The

learned Counsel further submitted that the

alleged contemnor is tendering unconditional

apology for running away from the process of

law. He fairly submitted that, the alleged

contemnor is running educational institution

and hopefully, he is also educated and it is

expected from him that he should not run away

from the process of law and the jurisdiction

of this Court. It is further submitted that

it was bounden duty of the alleged contemnor

to submit to the jurisdiction of this Court.

It is further submitted that the alleged

contemnor, due to stringency of funds, tried

to keep away himself from the jurisdiction of

this Court. It is further submitted that the

police department might have incurred expenses

for finding out the alleged contemnor and,

therefore, such expenses can be recovered from

the alleged contemnor. The learned Counsel for

the alleged contemnor fairly submitted that

this is a case of contempt. However, he

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submits that for want of funds and since

record was not available for preparing bills,

the alleged contemnor could not take further

steps.

14. The learned counsel for the alleged

contemnor vehemently argued before this Court

that, the respondent will deposit the entire

unpaid salary amount within two weeks.

15. The learned Counsel for the alleged

contemnor submitted that, during the year,

2010, no salary bills were submitted since the

record was not available with the alleged

contemnor. After the record was made

available, he submitted the salary bills of

the petitioner in the month of July, 2011.

. It is further submitted that, the act of

the alleged contemnor to run away from the

jurisdiction of this Court and to go in some

other State cannot be countenanced. However,

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there was no intention as such on the part of

the alleged contemnor and he left the State to

collect funds to be deposited towards arrears

of petitioner’s salary. It is further

submitted that there was no intention on the

part of the alleged contemnor to harass the

petitioner. He had knowledge that he has to

submit bills and salary amount will have to be

paid to the petitioner.

. The learned counsel further submits that

the alleged contemnor is not having previous

conviction in any crime and he has also

submitted unconditional apology by filing

affidavit as also orally through Counsel. It

is further submitted that the alleged

contemnor appealing to the mercy jurisdiction

of this Court. The learned Counsel,

therefore, would submit that, the notice may

be discharged and contempt proceedings may be

dropped. At the cost of repetition, he

submits that the alleged contemnor is ready to

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deposit the amount towards arrears of unpaid

salary of the petitioner within two weeks.

However, he fairly submits that he cannot

assure this Court that if the alleged

contemnor is released, he will be available to

the further proceedings and will subject to

the jurisdiction of this Court and therefore,

during that period of two weeks, he may be

kept in jail as he is already directed to be

kept in Central Jail, Harsool.

16. The learned Counsel for the petitioner

invited my attention to the order dated 12th

November, 2009 passed by this Court in Writ

Petition No.2177 of 2009 and in particular,

para 3 of the said order. He submits that the

alleged contemnor – respondent No.1 has

committed breach of the undertaking given to

this Court through his Counsel in two ways.

Firstly, he did not deposit the unpaid amount

of salary within six weeks as undertaken by

him and further, the management did not

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continue to pay the salary to the petitioner

as admissible to the post of Assistant

Teacher.

17. It is further submitted that in the

present contempt petition, the notices were

issued on 15.12.2010, same were served upon

the alleged contemnor, even then the salary

for the month of January, 2011 to March, 2011

has not been paid to the petitioner. The

learned counsel invited my attention to the

Rejoinder filed by the petitioner at page 89

of the compilation and submitted that in spite

of notice issued in this contempt petition,

the respondent/alleged contemnor has given

threats to the petitioner, that she should

withdraw the contempt petition otherwise she

would face serious consequences. It is further

submitted that the affidavit was filed by

respondent/alleged contemnor on 15.06.2011 and

a statement was made in it that all the

arrears of the petitioner’s unpaid salary will

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be paid and bills will be forwarded to the

Education Officer (Primary), Zilla Parishad,

Nanded. However, the said bills were not

submitted as undertaken and for the first time

on 2nd July, 2011, the said bills are

submitted to the Education Officer. Therefore,

according to the counsel for the petitioner,

it also amounts to breach of undertaking given

to this Court. It is further submitted that,

in the said affidavit further assurance was

given to this Court that, in case the

Education Officer (Primary), Zilla Parishad,

Nanded fails to clear the arrears of salary of

the petitioner, in that case, the alleged

contemnor will deposit the amount towards

arrears of unpaid salary. However, the said

undertaking has not been complied with.

Learned counsel further submits that the

Hon’ble Supreme Court in the case of “Rama

Narang V/s Ramesh Narang and another” reported

in “A.I.R. 2007 S.C. 2029” has taken a view

that if there is willful breach of undertaking

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given to the Court, the said amounts to

contempt and wilful disobedience of the order

passed by the Court. The learned Counsel also

pressed in to service the reported judgment of

the Supreme Court in the case of “Pallav Sheth

V/s Custodian” reported at ” 2001 DGLS (Soft)

980″ and submitted that the provisions of

Section 20 of the Contempt of Courts Act will

not come in the way of the petitioner, since

the contempt filed by the petitioner is well

within limitation. Therefore, learned counsel

for the petitioner would submit that this

Court may punish the alleged contemnor for

committing contempt and willful disobedience

of the order passed by this Court.

18. The Counsel for the Education Officer

(Primary), Zilla Parishad submits that he is

taking sincere efforts to get the amount

sanctioned and paid to the petitioner. He

submits that he has already submitted the

salary bills of the petitioner to the Director

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of Education, (Primary) Maharashtra State,

Pune on 4th August, 2011 and thereafter, the

reminders have also been sent to the concerned

Authority on 20th August and 9th September,

2011. Therefore, the learned counsel for the

Education Officer would submit that he is

taking sincere efforts to get the amount

sanctioned from the higher authorities so that

the payment should be made to the petitioner.

19. I have given due consideration to the

submissions of the Counsel appearing for the

respective parties. Original papers of Writ

Petition no. 2177/2009 were called and same

are made available by Registry for perusal.

The counsel for the respondent/alleged

contemnor was heard at length at 9th

September, 2011. Thereafter today also he has

advanced his submission at length.

20. The respondent no.1/alleged contemnor is

added as respondent no.1 in his personal

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capacity and as a respondent no.2 in the

capacity of President of respondent no.2-

Institution.

From perusal of the original proceedings

in Writ Petition no. 2177/2009, it appears

that the respondent/alleged contemnor did file

the said

judgment

and
Writ

order
Petition

of the
aggrieved

School
by

Tribunal,
the

Latur. In said Writ Petition this Court was

pleased to issue Rule and interim relief in

terms of prayer clause `C’. However, so far as

the salary of the petitioner for the post of

Assistant Teacher is concerned, same was not

paid to the petitioner. Therefore, at the time

of hearing of the said Writ Petition, the

grievance was made in respect of said unpaid

salary. In the above background this Court

held in paragraph no.3 of the order dated

12.09.2009 as under :

“Mr. Dhorde, learned Counsel for the

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petitioner states that the unpaid

amount of salary would be disbursed
within six weeks from today and the

management will continue to pay to
respondent No.4 salary admissible to
the post of Assistant teacher.”

21. Therefore, reading para no.3 of the order

of this Court in the said Writ Petition, would

make it abundantly clear that the

respondent/alleged contemnor had given solemn

undertaking to this Court through his counsel

Mr. Dhorde that unpaid amount of salary of the

petitioner will be disbursed within six weeks

from 12th November, 2009 to the petitioner,

who was respondent no.4 in the Writ Petition

and also the Management will continue to pay

salary of respondent no.4 petitioner herein.

. It is admitted position that in spite of

solemn undertaking given to this Court the

alleged contemnor has not paid the amount of

unpaid salary to the petitioner within six

weeks from 12.11.2009, or till today, and also

the Management has been failed to pay the

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regular salary to the petitioner. Therefore,

there is clear breach of undertaking given to

this Court by the alleged contemnor. It is

also not in dispute that the alleged contemnor

did not file an application either for

extension of time or modification of the said

order, therefore, the net position emerges

that the observations of this Court in para 3

of the order dated 12.11.2009 in Writ Petition

no. 2177/2009 on the basis of solemn

undertaking are still in force. Therefore, the

stand taken by the alleged contemnor that

record was not available, and therefore, he

could not prepare the salary bills is not part

of the undertaking. From reading of the

affidavit in reply filed by the alleged

contemnor, bone of contention appears to be

that necessary record was not available for

preparation of salary bills of the petitioner,

and therefore, the respondent/alleged

contemnor could not submit salary bills to the

Education Officer. Further stand taken in the

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affidavit in reply appears to be that, the

alleged contemnor was under bonafide

impression that respondent no.3 is responsible

for unpaid amount of salary. Such stand taken

by the respondent/contemnor is after thought.

The undertaking given by the alleged contemnor

does not mention preparation of any salary

bills
and submitting it to

Officer and get amount sanctioned and then to
the Education

disburse the said amount to the petitioner.

The stand taken by the respondent that the

record was not available and therefore, he

could not prepare the salary bills and submit

to the Education Officer cannot be

countenanced. It was open for the contemnor to

file application in pending Writ petition

either for modification of the order or

extension of time. However, admittedly, no

such application has been filed by the

contemnor, the order dated 12.11.2009 passed

by this Court in Writ Petition no. 2177/2009

is very much in force and therefore, there is

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clear willful disobedience of undertaking

given to this court by the respondent/alleged

contemnor.

22. The second point which requires to be

considered in this Contempt Petition is,

affidavit filed by the alleged contemnor on

15th
June,

Proceedings.

                      2011

                      The
                             in

                             said
                                    the        present

                                        affidavit
                                                               Contempt

                                                            filed         by
              

respondent/alleged contemnor is at page 94 of

the compilation of the Contempt Petition which

reads thus :-

“I,Mohammad Osman S/o. Mohd. Ismail,
Age : 56 years, Occ : Nil, R/o C/o

Rahim Bhai Engineer, Parbhani, Tq. &
Dist. Parbhani, the President of
Madarse Noorul Uloom Education
Society, Nanded do hereby state on
solemn affirmation as under:-

1. I say that, I will submit the
bill regarding unpaid amount of
salary to the petitioner within 3
days from today to the Respondent no.
4-Education Officer (Primary), Zilla
Parishad, Nanded and I will take
steps to get the said amount
disbursed by the Respondent no.4 on
or before 24.06.2011.

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2. I say that, in the event the
said amount is not disbursed before

24.06.2011, I will deposit the said
amount within one week from
24.06.2011 in this Hon’ble High
Court.”

23. From perusal of the para no.1 of the said

affidavit reproduced hereinabove, there is

solemn undertaking given by the respondent

that, he
ig will submit the bills regarding

unpaid amount of salary within three days from

the date of filing of the affidavit i.e.

15.06.2011, to respondent no.4-Education

Officer (Primary), Zilla Parishad, Nanded. It

is stated in para no.1 that, he will take

steps to get the amount disbursed on or before

24.06.2011 and in the event the said amount is

not disbursed before 24.06.2011, he will

deposit the said amount within one week from

24.06.2011 in this Court.

24. Admittedly till the date the undertaking

given to this Court by filing affidavit on

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oath has not been complied with. It is also

relevant to mention that first time respondent

no.1 submitted bills towards unpaid salary of

the petitioner to the Education Officer on 2nd

July, 2011 i.e. after 24.06.2011. As stated

earlier no amount towards unpaid salary or

further salary is paid to the petitioner till

this date.

25. This Court on 6th September, 2011 has

passed the detailed order indicating the

conduct of the contemnor in running away from

the jurisdiction of this Court and not making

available himself in this Contempt Proceeding

on various dates fixed for hearing. The order

dated 6th September, 2011 is already

reproduced hereinabove in para 11 of this

Judgment. The conduct of the respondent nos. 1

and 2/alleged contemnor is totally unreliable,

untrustworthy and unworthy, therefore, he does

not deserve any leniency.

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26. Therefore, taking into consideration the

clear breach of undertaking as referred above,

this Court was not left with any option but to

decide this Contempt Petition in presence of

the alleged contemnor/respondent. Therefore,

the non-bailable warrant was issued. However,

the alleged contemnor absconded and did not

make available himself to the jurisdiction of

this Court. The matter was fixed for number of

dates and report is received from the

Superintendent of Police, Parbhani that the

respondent/alleged contemnor is hiding himself

and is not traceable. Even Superintendent of

Police, Parbhani was required to be summoned

by this Court and she remained present before

this Court. However, alleged contemnor not

only absconded but went to another State.

Therefore, when he was produced on 6th

September, 2011, this Court was not sure as to

whether the alleged contemnor if released will

make himself available for further

proceedings.

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27. This Court in this contempt petition is

examining the contentions raised by the

petitioners that solemn undertaking given

before this Court is breached/ violated by the

alleged contemnor/ respondent and if this

Court allows to violate/ breach the

public

undertakings and directions, in that case, the

at large would lose faith in the

judicial system and sanctity of giving such

undertakings and passing the orders on the

basis of such undertakings would be of no

avail.

28. The Constitutional Bench of the Supreme

Court, in case of Supreme Court Bar

Association Vs. Union of India & anr. [ (1998)

4 SCC 409 ], in para 42 held :

“42. The contempt of court is a
special jurisdiction to be
exercised sparingly and with
caution whenever an act adversely
affects the administration of

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justice or which tends to impede

its course or tends to shake
public confidence in the judicial

institutions. This jurisdiction
may also be exercised when the act
complained of adversely affects
the majesty of law or dignity of
the courts. The purpose of

contempt jurisdiction is to uphold
the majesty and dignity of the
courts of law. It is an unusual
type of jurisdiction combining

“the jury, the judge and the
hangman” and it is so because the

court is not adjudicating upon any
claim between litigating parties.
This jurisdiction is not exercised
to protect the dignity of an

individual judge but to protect
the administration of justice from
being maligned. In the general
interest of the community it is

imperative that the authority of
courts should not be imperilled

and there should be no
unjustifiable interference in the
administration of justice. It is
a matter between the court and the

contemnor and third parties cannot
intervene. It is exercised in a
summary manner in aid of the
administration of justice, the
majesty of law and the dignity of
the courts. No such act can be

permitted which may have the
tendency to shake the public
confidence in the fairness and
impartiality of the administration
of justice.”

29. Therefore, if the majesty of the law is to

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be upheld and if the confidence of the common

people in the judiciary is to be maintained,

in that case, the person who gives undertaking

before this Court and subsequently does not

follow the said undertaking even after one and

half year from giving such undertaking,

deserves to be punished. Not only this but in

present Contempt Petition the respondent has

filed affidavit on 15.06.2011 thereby stating

on oath that, he will submit unpaid salary

bills of the petitioner to the Education

Officer within three days and he will take

steps to get the said amount disbursed by the

respondent no.4 on or before 24.06.2011 and in

case, the amount is not disbursed before

24.06.2011, he will deposit the said amount

within one week from 24.06.2011 in this Court.

30. In the present contempt proceedings, this

Court is mainly concerned with maintaining the

majesty of law and public confidence in

judiciary. If the act of the respondent/

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alleged contemnor to file undertaking and then

to breach it and further to file affidavits

before this Court, thereby giving assurance to

disburse the unpaid salary within one week

from 24.06.2011, to the petitioner, and not

complying with the said statement on oath till

date, if tolerated and allowed to continue,

certainlyig the public confidence

judicial institution will be shaken and the
in the

litigants will tempt to violate/ breach the

orders/ undertaking given before the Court.

31. In the present case, there is breach of

undertaking given by the respondent-alleged

contemnor through his Counsel on 12th

November, 2009 in Writ Petition No. 2177/2009.

The alleged contemnor did not pay unpaid

amount of salary or disbursed the same within

six weeks to the petitioner from 12th

November, 2009. Secondly, the assurance given

that the Management will continue to pay the

respondent no.4 i.e. the present petitioner

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cp464.10

the salary admissible to the post of assistant

teacher is also not complied with. Admittedly,

as on today, the undertaking given to this

Court on 12th November, 2009 in Writ Petition

no. 2177/2009 as reflected in para no.3 of the

said order, has not been complied with by the

respondent/alleged contemnor.

32. Secondly, the undertaking given to this

Court by way of affidavit on 15th June, 2011

has not been complied with by the allegedly

contemnor/ respondent. Thirdly, the

respondent/alleged contemnor, after issuance

of non-bailable warrant on 11th August, 2011

absconded and did not make available for

himself and ran away from the process of law

and ultimately, did not subject to

jurisdiction of this Court for the various

dates fixed for hearing from 11.07.2011 to

06.09.2011. This Court was constrained to

direct the Superintendent of Police, Parbhani

to continue search of the respondent/alleged

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contemnor and produce him before this Court.

Therefore, this Court is of the considered

view that, this is a case of clear breach and

willful disobedience of undertakings given to

this Court and further violation of the orders

passed by this Court on the basis of such

undertakings given by the respondent/ alleged

contemnor before this Court. The situation is

aggravated by the respondent/ alleged

contemnor himself by not making himself

available for various dates fixed for hearing

of the Writ Petition. The respondent has shown

total disrespect and disregard to the judicial

process and also to the process of law.

33. The respondent/alleged contemnor had tried

to protract and prolong hearing of the

contempt petition by not making available

himself when the Petition was fixed for

hearing. He has not obeyed the orders passed

by this Court, rather tried to prolong the

hearing of the Contempt Petition. The said

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conduct of the alleged contemnor/ respondent

can not be countenanced and same deserves to

be dealt with rigorously.

34. However, the case in hand falls under

Civil Contempt as defined under Section 2(b)

of the Contempt of Courts Act, which reads

thus :

Section 2(b) : “civil contempt” means
wilful disobedience to any judgment,
decree, direction, order, writ or
other process of a Court or wilful

breach of an undertaking given to a
Court;

35. The reading of Section 2(b) of the

Contempt of Courts Act, 1971 makes it clear

that civil contempt means wilful disobedience

to any judgment, decree, direction, order,

writ or other process of a Court or wilful

breach of an undertaking given to a Court. The

wilful disobedience has not been defined in

the Contempt of Courts Act. The Hon’ble

Supreme Court in the case of “All India Anna

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Dravida Munnetra Kazhagam V/s L.K. Tripathi”

reported in ” (2009) 5 S.C.C. 417″ from para

53 to 64 had discussed about what is mean by

`wilful disobedience.’ The Hon’ble Supreme

Court has referred to various earlier

judgments and dictionary meaning and explained

about the wilful disobedience. The paragraph

nos. 53 ig to 64

reproduced herein below :

                              of    the        said        judgment           is
              
                  "53.    We   have    considered    the
                  submissions/arguments    of    learned
      

counsel for the parties. Section 2(b)
and (c) of the 1971 Act which define

civil and criminal contempt read as
under:

“2(b) `civil contempt’ means wilful
disobedience to any judgment, decree,

direction, order, writ or other
process of a court or wilful breach
of an undertaking given to a court;

(c) `criminal contempt’ means the
publication (whether by words, spoken

or written, or by signs, or by
visible representations, or
otherwise) of any matter or the doing
of any other act whatsoever which-

(i) scandalises or tends to
scandalise, or lowers or tends to
lower the authority of, any court ;
or

(ii) prejudices, or interferes or

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tends to interfere with, the due

course of any judicial proceeding; or

(iii) interferes or tends to

interfere with, or obstructs or tends
to obstruct, the administration of
justice in any other manner,”

54. An analysis of Section 2(b) of
the 1971 Act shows that willful
disobedience to any judgment, decree,
direction, order, writ or other

process of a court or willful breach
of an undertaking given to a court

constitutes civil contempt. If this
definition is read with Article 129
of the Constitution of India, it

becomes clear that being a Court of
record, this Court can punish a
person for civil contempt if it is
found that he has willfully disobeyed
any judgment etc. or violated

undertaking given to the Court.

55. The term `wilful’ (willfull) has
not been defined in the 1971 Act.
Therefore, it will be useful to

notice dictionary meaning of the said
term. As per The New Oxford
Illustrated Dictionary (1980
Edition),the term “wilful” means
“asserting or disposed to assert
one’s own will against instruction,

persuasion, etc.; obstinately self-
willed; deliberate, intentional,
showing perversity or self-will”.

56. According to Black’s Law
Dictionary, (8th Edition)- “Wilful”
means “[v]oluntary and intentional,
but not necessarily malicious” and
“wilfulness” means

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cp464.10

“1. The fact or quality of

acting purposely or by design;
deliberateness;intention; willfulness

does not necessarily imply malice,
but it involves more than just
knowledge.

2. The voluntary, intentional

violation or disregard of a known
legal duty.”

57. As per Stroud’s Judicial

Dictionary, Vol.5 (4th Edition),
“wilful disobedience” means;
ig “(1) The willful disobedience of
a SEAMAN or apprentice is `wilfully
disobeying any lawful command DURING

engagement’: `There may be many cases
in which DESERTION, or ABSENCE
without leave, would not amount to
willful disobedience, and in these
cases the seaman would only be liable

to the lesser penalty. Where,
however, the seaman deserts or is

intentionally absent without leave
after the time at which he has been
lawfully ordered to be on board, his
desertion or absence may amount to

“wilful disobedience,” and,
consequently, that he would be liable
to imprisonment. The words “during
the engagement” seem to suggest that
the contract between the employer and

the employed should be taken into
account, and that if, having regard
to that contract, the order was one
which the employed was bound to obey,
his disobedience might be dealt with
under clause (d)’;”

58. In Shorter Oxford English
Dictionary, the term “willful” has

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cp464.10

been defined as:

“1. Asserting or disposed to
assert one’s own will against

persuasion, instruction, or command;
governed by will without regard to
reason; obstinately self-willed or
perverse.

2. Willing; consenting; ready to
comply with a request, desire, or
requirement – 1598.

3. proceeding from the will;

done or suffered of one’s own free
will or choice; voluntary – 1687.
ig 4. Done on purpose or wittingly;
purposed, deliberate, intentional.
(Chiefly, now always, in bad sense of

a blameworthy action; freq. implying
`perverse, obstinate’.)”

59. In Ashok Paper Kamgar Union v.

Dharam Godha and others [(2003) 11
SCC 1], this Court was called upon to

decide whether the respondents i.e.
Shri Dharam Godha, Chairman, Nouveau
Capital & Finance Ltd.; Shri S.
Jagadeesan, Joint Secretary, Ministry

of Industry, Department of Industrial
Policy and Promotion, Government of
India; Shri G.S. Kang, Secretary,
Department of Industries, Government
of Bihar; Shri S.N. Khan, Chairman

and Managing Director and Shri R.P.
Chabra, Chief General Manager,
Rehabilitation Finance Department,
Industrial Development Bank of India
were guilty of contempt.

60. The facts of Dharam Godha case
were that by an order dated 8.7.1996,
this Court approved the proposal made

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cp464.10

by the Government of India for take

over of M/s. Ashok Paper Mills by
M/s. Nouveau Capital and Finance Ltd.

and disposed of the writ petition
filed by Ashok Paper Kamgar Union.
Later on, by an order dated 1.5.1997,
all concerned were directed to
participate in implementation of the

scheme and the Finance Secretary,
Ministry of Finance, Government of
India was directed to ensure that the
legal requirements are fulfilled and

the mill is rehabilitated and both
Phases I and II of the Scheme are

given effect to. Two more orders were
passed by the court in the matter on
31.7.2000 and 1.9.2000. The
petitioner alleged that the

respondents have failed to comply
with the directions given by the
Court for implementation of the
Scheme and, therefore, they are

liable for contempt of court.

61. This court in Dharam Godha
took cognizance of the fact that M/s.
Nouveau Capital & Finance Ltd., had
failed to pay the consideration of

Rs.6 crores; that IDBI had disbursed
term loan of Rs.15 crores towards
Phase I of revival Scheme; that the
Department of Industrial Policy and
Promotion, Ministry of Commerce and

Industry, Government of India in
cooperation with the Department of
Banking obtained sanction for
additional term loan of Rs.11 crores
from IDBI and a working capital of
Rs.9.25 crores from United Bank of
India; that NCFL had invested Rs.20
crores towards promotion contribution
which was much more than amount
contemplated in Phase I of the Scheme

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cp464.10

and held that respondents cannot be

held guilty of contempt.

62. Para 17 of the judgment which
contains discussion on the subject
reads as under: (Dharam Godha case,
SCC pp.14-15)

“17. Section 2(b) of the
Contempt of Courts Act defines
`civil contempt’; and it means

wilful disobedience to any
ig judgment, decree, direction,
order, writ or other process of
a court or wilful breach of
undertaking given to a court.

           `Wilful'    means    an    act   or
           omission     which      is     done
           voluntarily    and    intentionally

and with the specific intent to
do something the law forbids or

with the specific intent to fail
to do something the law requires

to be done, that is to say, with
bad purpose either to disobey or
to disregard the law. It
signifies a deliberate action

done with evil intent or with a
bad motive or purpose.

Therefore, in order to
constitute contempt the order of
the court must be of such a

nature which is capable of
execution by the person charged
in normal circumstances. It
should not require any
extraordinary effort nor should
be dependent, either wholly or
in part, upon any act or
omission of a third party for
its compliance. This has to be
judged having regard to the

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facts and circumstances of each

case. The facts mentioned above
show that none of the

respondents to the petition can
be held to be directly
responsible if the Scheme which
had been formulated by the
Government of India on 28-6-1996

and had been approved by this
Court by the order dated
8-7-1996 could not be
implemented in letter and spirit

as many factors have contributed
to the same. The reasons given
ig for non-inclusion of
Umadhar Prasad Singh in signing
of the agreement appear to be
Shri

quite plausible. NCFL has

undoubtedly not discharged its
liability of making payment of
its entire liability of Rs.6
crores. However, it has come out

with a case that some additional
expenditure has been incurred in

running the unit. It is not
possible to get the complete
financial picture only on the
basis of the affidavits filed in

the present petition. On the
material on record, therefore,
it is not possible to hold that
the charge of having committed
contempt of court on account of
alleged non- compliance with the

orders passed by this Court on
8-7-1996, 1-5-1997 and 31-7-2000
has been established against any
one of the respondents.”

(emphasis added).

63. In DDA v. Skipper Construction
[(1995) 3 SCC 507], this Court

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cp464.10

highlighted the distinction between

the civil and criminal contempt in
the following words:- (SCC p-517,

paras 43-44)

“43. Civil contempt is defined
under Section 2(b) of the Act.

Thus, any wilful disobedience to
the order of the court to do or
abstain from doing any act is
prima facie a civil contempt.

Civil contempt arises where the
power of the court is invoked
ig and exercised to enforce
obedience to orders of the
court.

44. On the contrary, criminal
contempts are criminal in
nature. It may include outrages
on the Judges in open court,
defiant disobedience to the

Judges in court, libels on
Judges or courts or interfering

with the courts of justice or
any act which tends to prejudice
the courts of justice.”

64 In Kapildeo Prasad Sah and
others v. State of Bihar and others
[(1999) 7 SCC 569], the Court
outlined the object of its contempt
jurisdiction in the following words:

(SCC pp-573-74, paras 9 & 11)

“9. For holding the respondents
to have committed contempt,
civil contempt at that, it has
to be shown that there has been
wilful disobedience of the
judgment or order of the court.
Power to punish for contempt is

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to be resorted to when there is

clear violation of the court’s
order. Since notice of contempt

and punishment for contempt is
of far-reaching consequence,
these powers should be invoked
only when a clear case of wilful
disobedience of the court’s

order has been made out. Whether
disobedience is wilful in a
particular case depends on the
facts and circumstances of that

case. Judicial orders are to be
properly understood and complied
ig with. Even
carelessness
negligence
can amount
disobedience particularly when
and
to

the attention of the person is

drawn to the court’s orders and
its implications. Disobedience
of the court’s order strikes at
the very root of the rule of law

on which our system of
governance is based. Power to

punish for contempt is necessary
for the maintenance of effective
legal system. It is exercised to
prevent perversion of the course

of justice.

11. No person can defy the
court’s order. Wilful would
exclude casual, accidental, bona

fide or unintentional acts or
genuine inability to comply with
the terms of the order. A
petitioner who complains breach
of the court’s order must allege
deliberate or contumacious
disobedience of the court’s
order.”

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36. The Supreme Court in the case of “Rama

Narang (5) V/s Ramesh Narang and another”

reported in “(2009) 16 S.C.C. 126”, after

critical analysis of the decided cases of the

Supreme Court held that, the wilful breach of

an undertaking given to the court amounts to

contempt of court under Section 2(b) of the

Contempt of Courts Act, 1971. The dictionary

meaning of the word undertaking and order, the

earlier judgments of the Supreme Court on

subject are discussed from para no. 35 to 47

of the said judgment. The paragraph nos. 35 to

47 of the said judgment are reproduced herein

below :

“35. Black’s Law Dictionary, 5th
Edn. defines “undertaking” in the
following words:

“A Promise, engagement, or
stipulation. An engagement by
one of the parties to a contract
to the other, as distinguished
from the mutual engagement of
the parties to each other. It
does not necessarily imply a
consideration. In a somewhat
special sense, a promise given
in the course of legal

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proceedings by a party or his

counsel, generally as a
condition to obtaining some

concession from the Court or the
opposite party. A promise or
security in any form.”

36. Osborn’s Concise Law Dictionary,
10th Edn. defines “undertaking” in
the following words:

“A promise, especially a promise

in the course of legal
ig proceedings by a party or his
counsel, which may be enforced
by attachment or otherwise in
the same manner as an

injunction.”

37. In M. v. Home Office (1992) 4
All ER 97 at p.132g, the expression

“undertaking” has been dealt with in
the following manner:

“[I]f a party, or solicitors or
counsel on his behalf, so act as
to convey to the court the firm
conviction that an undertaking

is being given, that party will
be bound and it will be no
answer that he did not think
that he was giving it or that he
was misunderstood.”

38. In re Hudson [1966] Ch. 209 the
English Court observed as under:(All
ER pp.112 I-113 A)

“An undertaking to the court
confers no personal right or
remedy on any other party. The

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only sanctions for breach are

imprisonment for contempt,
sequestration or a fine.”

39. Similarly, in Shoreham-by-Sea
U.D.C. v. Dolphin Canadian Proteins
Ltd., (1972) 71 L.G.R. 261, the Court

observed as under:

“Failure to comply with an
undertaking to abate a nuisance

may be visited with a
ig substantial fine.”

40. The Division Bench of the Bombay

High Court in Bajranglal Gangadhar
Khemka v. Kapurchand Ltd. reported in
AIR 1950 Bombay 336 had an occasion
to deal with similar facts. Chagla,
C.J., speaking for the Court,

observed as under: (AIR p.337, para

4)

“4. We are not prepared to
accept a position which seems to
us contrary to the long practice
that has been established in

this Court, and, apparently,
also in England. There is no
reason why even in a consent
decree a party may not give an
undertaking to the Court.

Although the Court may be bound
to record a compromise, still,
when the Court passes a decree,
it puts its imprimatur upon
those terms and makes the terms
a rule of the Court; and it
would be open to the Court,
before it did so, to accept an
undertaking given by a party to
the Court. Therefore, there is

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nothing contrary to any

provision of the law whereby an
undertaking cannot be given by a

party to the Court in the
consent decree, which
undertaking can be enforced by
proper committal proceedings.”

41. In Noorali Babul Thanewala v.
K.M.M. Shetty reported in (1990) 1
SCC 259, a tenant committed breach of

undertaking given by him to the
Supreme Court to deliver vacant
possession of certain premises. The

Supreme Court held the tenant guilty
of contempt. Hon’ble V. Ramaswami,
J., delivering the judgment observed:

(SCC pp-265-66 para 11)
“11. When a court accepts an
undertaking given by one of the
parties and passes orders based

on such undertaking, the order
amounts in substance to an

injunction restraining that
party from acting in breach
thereof. The breach of an
undertaking given to the Court

by or on behalf of a party to a
civil proceedings is, therefore,
regarded as tantamount to a
breach of injunction although
the remedies were not always
identical. For the purpose of

enforcing an undertaking that
undertaking is treated as an
order so that an undertaking, if
broken, would involve the same
consequences on the persons
breaking that undertaking as
would their disobedience to an
order for an injunction. It is
settled law that breach of an

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injunction or breach of an

undertaking given to a court by
a person in a civil proceeding

on the faith of which the court
sanctions a particular course of
action is misconduct amounting
to contempt.”

42. In Mohd. Aslam v. Union of India
reported in (1994) 6 SCC 442, this
Court dealt with the contempt

proceedings raising the issues as to
the amenability of the State and of
its
ig Ministers for failure of
obedience to the judicial
pronouncements. In this case, the
Chief Minister of Uttar Pradesh had

made a statement before National
Integration Council that the
Government of Uttar Pradesh will hold
itself fully responsible for the

protection of the Ram Janma Bhumi-
Babri Masjid structures. Upon this

statement of the Chief Minister, this
Court had passed an order. However,
in the contempt proceedings it was
alleged that the orders passed on the
basis of the statements made have

been deliberately and wilfully
flouted and disobeyed by the State of
Uttar Pradesh. While dealing with the
expression “undertaking”, this Court
observed as under: (SCC p-453, para

22)
“The Chief Minister having given
a solemn assurance to the
National Integration Council and
permitted the terms of that
assurance to be incorporated as
his own undertaking to this
court and allowed an order to be
passed in those terms cannot

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absolve himself of the

responsibility unless he placed
before the Court sufficient

material which would justify
that he had taken all reasonable
steps and precautions to prevent
the occurrence.”

43. In Rita Markandey v. Surjit
Singh Arora reported in (1996) 6 SCC
14, this Court came to the conclusion

that even if the parties have not
filed an undertaking before the
Court, but if the Court is induced to

sanction a particular course of
action or inaction on the basis of
the representation of such a party

and the court ultimately finds that
the party never intended to act on
such representation or such
representation was false, even then

the party would be guilty of
committing contempt of court. The

Court observed as under: (SCC p-20,
para 12).

“12. Law is well settled that if

any party gives an undertaking
to the Court to vacate the
premises from which he is liable
to be evicted under the orders
of the Court and there is a

clear and deliberate breach
thereof it amounts to civil
contempt but since, in the
present case, the respondent did
not file any undertaking as
envisaged in the order of this
Court the question of his being
punished for breach thereof does
not arise. However, in our
considered view even in a case

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where no such undertaking is

given, a party to a litigation
may be held liable for such

contempt if the Court is induced
to sanction a particular course
of action or inaction on the
basis of the representation of
such a party and the Court

ultimately finds that the party
never intended to act on such
representation or such
representation was false.”

44. In
ig K.C.G. Verghese v. K.T.

Rajendran reported in (2003) 2 SCC
492, this Court dealt with the
“undertaking” in contempt proceedings

arising out of eviction proceedings.
This Court held that when at the time
of giving the undertaking, the tenant
did not indicate that he was in

possession of a part of the premises
and not the other portion nor was

such a stand taken in any of the
pleadings before the High Court or
rent controller, the order of
eviction passed against the tenant is
equally binding upon the occupant of

the other portion.

45. This Court again had occasion to
deal with a case in Bank of Baroda v.

Sadruddin Hasan Daya reported in
(2004) 1 SCC 360. In that case, the
Court clearly observed as under:(SCC
p-361g).

“The wilful breach of an
undertaking given to a court
amounts to `civil contempt’
within the meaning of Section

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2(b) of the Contempt of Courts

Act. The respondents having
committed breach of the

undertaking given to the Supreme
Court in the consent terms they
are clearly liable for having
committed contempt of court.”

46. The respondents placed reliance
on Babu Ram Gupta v. Sudhir Bhasin
reported in (1980) 3 SCC 47. In this

case admittedly no application,
affidavit or any undertaking were
given by the appellant. Therefore,

this case is of no assistance to the
respondents. In this case, the Court
observed that:(SCC p-53, para 10).

“[E]ven the consent order does
not incorporate expressly or
clearly that any such
undertaking had been given

either by the appellant or by
his lawyer before the Court that

he would handover possession of
the property to the receiver. In
the absence of any express
undertaking given by the

appellant or any undertaking
incorporated in the order
impugned, it will be difficult
to hold that the appellant
wilfully disobeyed or committed
breach of such an undertaking”.

The Court even in this case observed
that: (SCC p-53, para 10)

“In fact, the reason why a
breach of clear undertaking
given to the court amounts to
contempt of court is that the

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contemnor by making a false

representation to the court
obtains a benefit for himself

and if he fails to honour the
undertaking, he plays a serious
fraud on the court itself and
thereby obstructs the course of
justice and brings into

disrepute the judicial
institution.” (emphasis in
original).

47. The critical analysis of the
decided cases of this Court clearly

leads to the conclusion that wilful
breach of an undertaking given to the
Court amounts to contempt of court

under Section 2(b) of the Act.”

37. Therefore, viewed from any angle the

respondent/ alleged contemnor inspite of

undertaking given to this Court on 12th

November, 2009 in Writ Petition no. 2177/2009

and also inspite of directions in para no.3 of

the order of this Court in said Writ Petition,

and also inspite of the undertaking given by

way of filing Affidavit on oath on 15th June,

2011 has not disbursed/ paid the unpaid salary

of the petitioner. The Management i.e.

respondent no.2, did not continue to pay the

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regular salary to the petitioner as an

Assistant Teacher in spite of solemn

undertaking given to this Court. Therefore,

the alleged contemnor/ respondent has

committed breach of undertakings given to this

Court and wilfully disobeyed the orders passed

by this Court on 12th November, 2009 in Writ

2011 in

Petition no. 2177/2009 and also on 15th June,

the present Contempt Petition,

therefore, the respondent/ alleged contemnor-

Mohd. Osman S/o Mohd. Ismail is liable to be

punished under the provisions of the Contempt

of Courts Act, 1971 and Article 215 of the

Constitution of India. His conduct in not

making himself available for the process of

law and jurisdiction of this Court and

absconding, makes him further unworthy, and

leads to such situation that, he can not be

shown leniency.

38. Though, it is vehemently argued by the

counsel for the respondent that, the

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respondent has tendered unconditional apology

in the affidavit in reply filed in this

contempt proceedings and also had orally

tendered the unconditional apology, in the

facts of this case, it is not possible to

accept such apology.

Jaikwal

39. The Supreme Court in the case of

V/s State of U.P.” reported
“L.D.

in

“A.I.R. 1984 S.C. 1374” held that, “we are

sorry to say we cannot subscribe to the “slap-

say-sorry and forget” school of thought in

administration of contempt jurisprudence.

Saying “sorry” does not make the slapper taken

the slap smart less upon the said hypocritical

word being uttered. Apology shall not be paper

apology and expression of sorrow should come

from the heart and not from the pen. For it is

one thing to “say” sorry-it is another to

“feel” sorry”.

40. Therefore, in my opinion, in the facts of

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this case, no such apology can be accepted.

Therefore, at this stage, the learned counsel

appearing for the respondent/alleged contemnor

is called upon to address this Court on the

point of sentence.

41. The learned counsel appearing for the

respondent once again submits that the alleged

contemnor is praying for mercy jurisdiction of

this Court. He further submits that respondent

is suffering from blood pressure and the

respondent will try to comply with the

affidavit filed on 15.06.2011.

42. It is not possible for this Court to

accept the submissions of the learned counsel

for the respondent. The learned Counsel for

the respondent is not sure that if the

respondent is left free and in case such

amount as assured by him is not deposited

within two weeks, in that case respondent will

make himself available for compliance of the

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order of this Court. Therefore, in my

considered view in the facts of this case, the

respondent who has breached two undertakings

and also ran away from the process of law,

would not make himself available for complying

the orders passed in this Contempt Petition.

43. In case of Pritam Pal Vs. High Court of

Madhya Pradesh, Jabalpur through Registrar [ 1993

Supp (1) SCC 529 ], the Hon’ble Supreme Court

held :

“The power conferred upon the

Supreme Court and the High Court,
being Courts of record under

Articles 129 and 215 of the
Constitution respectively is an
inherent power under which it can
deal with contempt of itself. The
jurisdiction vested is a special one

not derived from any other statute
but derived only from Articles 129
and 215. Therefore the
constitutionally vested right cannot
be either abridged, abrogated or cut

down, by any legislation including
the Contempt of Courts Act.
Therefore, the submission of the
contemnor that the impugned order is
vitiated on the ground of procedural
irregularities and that Article 215
is to be read in conjunction with
the provisions of Sections 15 and 17
of the Act of 1971, cannot be
countenanced. Nor can they be
controlled or limited by any statute

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or by any provision of the Code of

Criminal Procedure or any Rules.
The caution that has to be observed
in exercising this inherent power by

summary procedure is that the power
should be used sparingly, that the
procedure to be followed should be
fair and that the contemnor should

be made aware of the charge against
him and given a reasonable
opportunity to defend himself.

The Hon’ble Supreme Court further

held :

“An intention to interfere with the proper
administration of justice is not an
essential ingredient of the offence of
contempt of Court and it is enough if the
action complained of is inherently likely so

to interfere.”

The Hon’ble Supreme Court further held in para 60 :

“60. The maxim “salus populi suprema lex”,

that is “the welfare of the people is the
supreme law” adequately enunciates the idea
of law. This can be achieved only when
justice is administered lawfully, judicially,
without fear or favour and without being
hampered and thwarted, and this cannot be

effective unless respect for it is fostered and
maintained.”

44. Before I pass the appropriate order in

respect of sentence to be imposed upon the

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respondent/alleged contemnor, it will be

worthy to refer to the judgment of the Hon’ble

Supreme Court in the case of Hira Lal Dixit

Vs. State of Uttar Pradesh [ AIR 1954 SC

743 ], where the Supreme Court held, “The

summary jurisdiction exercised by superior

Courts in punishing contempt of their

authority exists for the purpose of preventing

interference with the course of justice and

for maintaining the authority of law as is

administered in the Court and thereby

affording protection to public interest in the

purity of the administration of justice. This

is certainly an extraordinary power which must

be sparingly exercised but where the public

interest demands it, the Court will not shrink

from exercising it and imposing punishment

even by way of imprisonment, in cases where a

mere fine may not be adequate.” Yet, in

another case of David Jude Vs. Hannath Grace

Jude & ors., reported in [ (2002) 10 SCC

760 ], the Hon’ble Supreme Court has

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considered the effect of breach of undertaking

and in the facts of that case, the Supreme

court found that, accepting mere apology of

the alleged contemnor is of no avail.

45. Yet, in another case of J. Vasudevan Vs.

T.R. Dhananjaya [ (1995) 6 SCC 249 ], the

Hon’ble Supreme Court, in para 14, held:

“14. Coming to the mercy
jurisdiction, let it be first
stated that while awarding
sentence on a contemnor the Court

does so to uphold the majesty of
law, and not with any idea of

vindicating the prestige of the
Court or to uphold its dignity.

It is really to see that
unflinching faith of the people in

the courts remains intact. But,
if the order of even the highest
Court of the land is allowed to be
wilfully disobeyed and a person
found guilty of contempt is let
off by remitting sentence on plea

of mercy, that would send wrong
signals to everybody in the
country. It has been a sad
experience that due regard is not
always shown even to the order of
the highest Court of the country.
Now, if such orders are disobeyed,
the effect would be that people
would lose faith in the system of

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administration of justice and

would desist from approaching the
Court, by spending time, money and

energy to fight their legal
battle. If in such a situation
mercy is shown, the effect would
be that people would not knock the
door of the courts to seek

justice, but would settle score on
the streets, where muscle power
and money power would win, and the
weak and the meek would suffer.

That would be a death-knell to the
rule of law and social justice

would receive a fatal blow. This
Court cannot be a party to it and,
harsh though it may look, it is
duty-bound to award proper

punishment to uphold the rule of
law, how so high a person may be.
It may be stated, an IAS officer
is of no consequence, so far as

the sentence is concerned. We
would indeed think that if a high

officer indulges in an act of
contempt, he deserves to be
punished more rigorously, so that
nobody would take to his head to

violate the Court’s order. May we
also say that a public officer,
being a part of the Government,
owes higher obligation than an
ordinary citizen to advance the
cause of public interest, which

requires maintenance of rule of
law, to protect which contemners
are punished.”

46. Therefore, I am of the view that in the

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present case, the ends of justice require that

the respondent Mohd. Osman S/o Mohd. Ismail be

sentenced to undergo simple imprisonment for a

period of three months and to pay a fine of

Rs. 2000/- (Rupees two thousand), in default

of payment of fine, he should further undergo

simple imprisonment for 15 days. Accordingly,

respondent-Mohd. Osman S/o Mohd.

held guilty of having committed civil contempt
Ismail is

and is ordered to suffer imprisonment in terms

of Section 12 of the Contempt of Courts Act,

1971 for a period of three months simple

imprisonment and to pay a fine of Rs. 2,000/-,

in default of payment of fine, he should

undergo simple imprisonment for 15 days.

47. It is needless to mention that in pursuant

to the issuance of non-bailable warrant, the

respondent/alleged contemnor was arrested and

produced before this Court on 6th September,

2011. He was directed to be kept in Harsool

Jail, Aurangabad till the next date i.e. 9th

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September, 2011 and thereafter also he was

kept in Harsool Jail till today. Therefore, he

is entitled for set off from the date of

arrest till this date. The contempt

proceedings qua this respondent nos.1 and 2

i.e. Mohd. Osman Mohd. Ismail stands concluded

and disposed off. Respondent Mohd. Osman Mohd.

     Ismail       
                  should      be    sent      to

undergo remaining part of the sentence. He is
Harsool Jail to

made aware that, he has right of appeal under

Section 19 of the Contempt of Courts Act,

1971.

48. At this stage, the learned counsel for the

respondent/alleged contemnor submits that

sentence may be suspended. However, in the

peculiar facts and circumstances of this case

and for the reasons recorded in the order

dated 6th September, 2011, this Court find it

very difficult to suspend the sentence and

release the alleged contemnor, since there is

no assurance from the counsel appearing for

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the respondent/contemnor that in case sentence

is suspended, the respondent will make himself

available to undergo remaining part of the

sentence. In that view of the matter, such

prayer is rejected. As stated earlier, the

respondent-Mohd. Osman S/o Mohd. Ismail should

be sent to Harsool Jail for undergoing

this

remaining part of the sentence. The copy of

judgment should be supplied to

respondent-Mohd. Osman S/o Mohd. Ismail by the

Registry free of cost forthwith without any

delay.

49. At this juncture, it will not be out of

place to mention and appreciate that, Shri

S.P. Chapalgaonkar, the learned counsel

appearing for the respondent nos.1 and 2 had

adopted very fair approach throughout the

hearing of this Contempt Petition and also

rendered very able assistance to this Court.

50. So far as respondent nos. 3 and 4 are

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concerned, initially no notice was issued to

them and therefore, this Court feel it

appropriate to dispose of this Contempt

Proceedings qua respondent nos.3 and 4 as

well.

. Accordingly Contempt Petition stands

disposed of. Original papers of Writ Petition

no. 2177/2009, should sent back forthwith to

the Writ Section of the Registry.

[ S.S. SHINDE, J ]
ga s/cp464.10

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