{"id":155125,"date":"2011-09-12T00:00:00","date_gmt":"2011-09-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rafia-sultana-vs-mohd-osman-on-12-september-2011"},"modified":"2017-03-24T17:27:46","modified_gmt":"2017-03-24T11:57:46","slug":"rafia-sultana-vs-mohd-osman-on-12-september-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rafia-sultana-vs-mohd-osman-on-12-september-2011","title":{"rendered":"Rafia Sultana vs Mohd. Osman on 12 September, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Rafia Sultana vs Mohd. Osman on 12 September, 2011<\/div>\n
Bench: S. S. Shinde<\/div>\n
                             1\n                                                           cp464.10\n\n\n\n\n                                                          \n        IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                  \n                   BENCH AT AURANGABAD.\n\n             CONTEMPT POETITION NO.464 OF 2010\n                             IN\n               WRIT PETITION NO.2177 OF 2009.\n\n\n\n\n                                 \n     Rafia Sultana d\/o Iqbal Ahemed Khan,\n     age 42 years, occu. service,\n     as Asstt. Teacher, Madarse Aamena Urdu,\n\n\n\n\n                        \n     Primary School, Nanded r\/o\n     H.No.5, Block No.24, Labour Colony,\n             \n     Nanded.                           ...PETITIONER.\n\n              VERSUS\n            \n     1. Mohd. Osman s\/o Mohd. Ismail,\n     age major, occu. nil.\n     r\/o c\/o Rahim Bhai Engineer,\n     Parbhani, Tq. & Dist.\n      \n\n     Parbhani.\n\n     2. The President\n   \n\n\n\n     Mohd. Osman s\/o Mohd. Ismail,\n     Madarse Noorul Uloom Edu. Society,\n     Nanded,\n     c\/o Madarse Amina Girl Urdu Primary School,\n\n\n\n\n\n     Makdom Nagar, Nanded,\n     Tq. & Dist. Nanded.\n\n     3 Sow. Salma Begum w\/o Sk. Jahur,\n     age major, occu. service,\n     r\/o c\/o Madarse Aamena Urdu Primary School,\n\n\n\n\n\n     Makdom Nagar,\n     Nanded,\n     tq. & Dist. Nanded.\n\n     4 The Education Officer (Primary),\n     Zilla Parishad,\n     Nanded, Tq. & Dist. Nanded.        ...RESPONDENTS.\n\n\n\n\n                                  ::: Downloaded on - 09\/06\/2013 17:43:54 :::\n                                  2\n                                                                  cp464.10\n\n                            ...\n\n\n\n\n                                                                 \n     Shri G.R. Syed, Advocate for petitioner.\n     Shri D.R. Kale, AGP for State.\n     Shri S.P. Chapalgaonkar, Advocate for R.Nos.1 &\n\n\n\n\n                                      \n     2.\n     Shri V.S. Panpatte, Adv. for R.No.4.\n                            ...\n\n\n\n\n                                     \n                                     CORAM: S.S. SHINDE,J.\n<\/pre>\n
                                     12th September, 2011.\n<\/p>\n
     ORAL JUDGMENT:\n<\/p>\n
     1.<\/p>\n
            This contempt petition alleges contempt \/<\/p>\n
     willful disobedience of the order passed by<\/p>\n
     this Court in Writ Petition no. 2177\/2009 on<\/p>\n
     12th November, 2009. In para 3 of the said<\/p>\n
     order, the undertaking given by the alleged<\/p>\n
     contemnor,       Mohmmad Osman Mohmmad Ismail is<\/p>\n
     recorded by this Court.\n<\/p>\n
     2.     The    petitioner   herein      was      appointed           on<\/p>\n
     16th June, 1993 as Assistant Teacher in Madarse<\/p>\n
     Aamena Urdu Primary School , a primary school<\/p>\n
     run by the respondent No.2 herein. It is the<\/p>\n
     case     of     the   petitioner          that         she        was<\/p>\n
     subsequently promoted as Head Mistress.                       It is<\/p>\n
                                         ::: Downloaded on – 09\/06\/2013 17:43:54 :::<\/span>
\n                                        3<\/span>
\n                                                                       cp464.10<\/p>\n
     further case of the petitioner that on 20th<\/p>\n
     November,      2007,        all       of      a     sudden,           the<\/p>\n
     respondent         No.1      issued         letter           to       the<\/p>\n
     petitioner     and        informed      that,        as      per      the<\/p>\n
     resolution     of     the     society         passed         on     19th<\/p>\n
     November, 2007, she was reduced in rank from<\/p>\n
     the   post    of    Head     Mistress         to    the      post       of<\/p>\n
     Assistant Teacher and, petitioner was directed<\/p>\n
     to hand over the charge of post of Headmaster<\/p>\n
     to the respondent No.3.\n<\/p>\n
     .     On    11th    February,         2007,       the     petitioner<\/p>\n
     filed      appeal     u\/s     9       of     the        Maharashtra<\/p>\n
     Employees of        Private Schools (Conditions of<\/p>\n
     Service)     Regulation        Act,         1977     (for         short,<\/p>\n
     referred to as “MEPS Act”), before the School<\/p>\n
     Tribunal     at     Latur.            The     School         Tribunal<\/p>\n
     dismissed the said appeal.                  Aggrieved by said<\/p>\n
     judgment and order, the petitioner filed Writ<\/p>\n
     Petition No. 4627\/2008 before this Court. By<\/p>\n
     order      dated      08.09.2008,             this       Court        was<\/p>\n
     pleased to allow the said writ petition and<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 17:43:54 :::<\/span>
\n                                    4<\/span>
\n                                                                    cp464.10<\/p>\n
     remanded    the     matter        back      to      the        School<\/p>\n
     Tribunal, Latur.\n<\/p>\n
     .    After remand, the School Tribunal, Latur<\/p>\n
     allowed    the    appeal   filed       by     the      petitioner<\/p>\n
     herein     on     18.2.2009           and      directed             the<\/p>\n
     respondents      No.1   and       2    to      reinstate            the<\/p>\n
     petitioner herein i.e. appellant therein, on<\/p>\n
     the post of Head Mistress with continuity of<\/p>\n
     service from      20.11.2007.\n<\/p>\n
     3.   Being aggrieved by the judgment and order<\/p>\n
     passed by the School Tribunal, Latur in Appeal<\/p>\n
     No.75\/2007, the respondents NO.1 and 2 herein<\/p>\n
     preferred Writ Petition No.2177 of 2009 before<\/p>\n
     this Court.      This Court on 12th November, 2009<\/p>\n
     issued Rule and continued the interim relief<\/p>\n
     in terms of prayer clause `C’ of the Petition,<\/p>\n
     which was granted earlier.               While hearing the<\/p>\n
     above mentioned writ petition, the grievance<\/p>\n
     was made by the respondent No.4 in the writ<\/p>\n
     petition i.e. petitioner herein, that she is<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:43:54 :::<\/span>
\n                                       5<\/span>
\n                                                                     cp464.10<\/p>\n
     not being paid the salary of Assistant Teacher<\/p>\n
     also.      This       Court   in     para       3   of    the    order<\/p>\n
     passed     in     Writ    Petition          No.2177        of      2009<\/p>\n
     recorded        the     statement          of       the     Advocate<\/p>\n
     appearing for the alleged contemnor.                            Para 3<\/p>\n
     of the said order reads, thus:\n<\/p>\n
          “3. Grievance is made by learned Counsel
\n          for respondent NO.4 that she is not being
\n          paid salary as Assistant Teacher also.
\n          Mr. Dhorde, learned Counsel for the<\/p>\n
          petitioner states that the unpaid amount
\n          of salary would be disbursed within six
\n          weeks from today and the management will
\n          continue to pay to respondent No.4 salary<\/p>\n
          admissible to the post of Assistant
\n          teacher.”<\/p>\n
     4.   This contempt petition has been filed by<\/p>\n
     the petitioner            since the alleged contemnor<\/p>\n
     respondent        No.1,       who     is        also      head         of<\/p>\n
     respondent       No.2,     did       not    comply        with       the<\/p>\n
     undertaking given before the learned Single<\/p>\n
     Judge of this Court through his Advocate.                            The<\/p>\n
     salary     of    the     petitioner         remained          unpaid.\n<\/p>\n
     Therefore,       this     contempt         petition       has      been<\/p>\n
     filed.\n<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                   6<\/span><\/p>\n
                                                                 cp464.10<\/p>\n
     5.   When this contempt petition was heard on<\/p>\n
     15th December, 2010, this Court issued notices<\/p>\n
     to the respondents No.1 and 2, which was made<\/p>\n
     returnable on 9th February, 2011.                    Since the<\/p>\n
     service of notice was awaited, the matter was<\/p>\n
     adjourned     to     17th        February,          2011.          On<\/p>\n
     17.02.2011,ig     this   Court     heard<\/p>\n
     Counsel for the respective parties and passed
\n                                                     the       learned<\/p>\n
     following order :\n<\/p>\n
               “The respondent’s Advocate     sought
\n          adjournment. Adjournment granted as a last<\/p>\n
          chance.   The   respondents   shall   file
\n          affidavit in respect of compliance of the
\n          order.\n<\/p><\/blockquote>\n
          3.     Stand over to 4th March, 2011.”\n<\/p><\/blockquote>\n
          In spite of this order, no affidavit-in-\n<\/p><\/blockquote>\n
     reply was filed by the respondents till 4th<\/p>\n
     March,    2011.      The    affidavit        on     behalf         of<\/p>\n
     respondent nos. 1 and 2 came to be filed on<\/p>\n
     7th March, 2011.\n<\/p>\n
                                        ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                     7<\/span><\/p>\n
                                                                   cp464.10<\/p>\n
     6.   From       careful       reading        of        the       said<\/p>\n
     affidavit,        the   sum    and    substance            of      the<\/p>\n
     contention of the alleged contemnor appears to<\/p>\n
     be that due to unavailability of the necessary<\/p>\n
     record,     and    since   the     record      was      with       the<\/p>\n
     petitioner, he could not take steps to submit<\/p>\n
     unpaid salary bills of the petitioner to the<\/p>\n
     Education officer (Primary), Zilla Parishad,<\/p>\n
     Nanded.\n<\/p>\n
     7.   In reply to the affidavit filed by the<\/p>\n
     alleged contemnor, the petitioner has                           filed<\/p>\n
     rejoinder affidavit on 6th April, 2011.                              On<\/p>\n
     4th May, 2011, the matter was taken up for<\/p>\n
     hearing by this Court, on said date this Court<\/p>\n
     directed the respondents No.1 and 2 to remain<\/p>\n
     present     on      the    next      date         of      hearing.\n<\/p>\n
     Thereafter, presence of the respondent nos. 1<\/p>\n
     and 2 was never dispensed with.\n<\/p>\n
     .    On 15th June, 2011, the matter was again<\/p>\n
     listed    for     hearing,    affidavit        on      behalf        of<\/p>\n
                                          ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                8<\/span>
\n                                                              cp464.10<\/p>\n
     respondents No.1 and 2 was tendered across the<\/p>\n
     Bar, and said was taken on record.\n<\/p>\n
     .     It was stated in para No.1 of the said<\/p>\n
     affidavit   that    the   alleged      contemnor            will<\/p>\n
     submit bills regarding unpaid salary of the<\/p>\n
     petitioner within three days from 15.6.2011 to<\/p>\n
     the
\n            respondent     No.4      Education<\/p>\n
     (Primary), Zilla Parishad, Nanded and he will
\n                                                            Officer<\/p>\n
     take necessary steps to get the said amount<\/p>\n
     disbursed   by    Respondent    No.4      on     or      before<\/p>\n
     24.6.2011 and in the event the said amount is<\/p>\n
     not   disbursed     before     24.6.2011,           he      will<\/p>\n
     deposit the said amount within one week from<\/p>\n
     24.6.2011 in this Court.\n<\/p>\n
     .     After perusal of the said affidavit dated<\/p>\n
     15th June, 2011, this Court by speaking order<\/p>\n
     adjourned hearing of the contempt petition to<\/p>\n
     4th July, 2011.     However, it appears that the<\/p>\n
     matter was not taken up for hearing on the<\/p>\n
     said date and therefore, the learned Counsel<\/p>\n
                                     ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                            9<\/span>
\n                                                         cp464.10<\/p>\n
     for the petitioner mentioned the matter on 7th<\/p>\n
     July, 2011 and same was then listed on 11th<\/p>\n
     July, 2011.\n<\/p>\n
     8.   On 11th July, 2011, this Court heard the<\/p>\n
     learned Counsel appearing for the petitioner<\/p>\n
     and also to the learned Counsel appearing for<\/p>\n
     the respondents No.1 and 2 at length. This<\/p>\n
     Court passed the following order:\n<\/p>\n
          “1.      Heard    the  learned   counsel
\n          appearing for the petitioner and learned<\/p>\n
          counsel appearing for respondents No.1
\n          and 2.    The learned counsel appearing<\/p>\n
          for respondents No.1 and 2 submits that,
\n          in spite of his sincere efforts to
\n          impress upon the respondents No.1 and 2<\/span>
\n          to comply the orders of this Court, they<\/p>\n
          are not listening him.      The learned
\n          counsel further submits that, he prays
\n          discharge from the matter. He has also
\n          sent notice to respondents No.1 and 2 by
\n          registered post A.D., copy of which is
\n          placed on record.<\/p><\/blockquote>\n
          2.       This   Contempt   Petition   was
\n          heard by this Court on 15.6.2011.     The
\n          affidavit   was   filed  on   behalf   of
\n          respondents No.1 and 2 by one Mr.
\n          Mohammad Osman s\/o Mohd. Ismail, stating
\n          therein that he will submit the bills
\n          regarding unpaid amount of salary to the
\n          petitioner   within   three   days   from<\/p>\n
                                ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                        10<\/span>
\n                                                     cp464.10<\/p>\n
      15.6.2011 to the respondent No.4 –\n<\/p>\n
      Education   Officer   (Primary),   Zilla
\n      Parishad, Nanded and he will take steps<\/p>\n
      to get the said amount disbursed by the
\n      respondent No.4 on or before 24.6.2011.
\n      It is further stated in para No.2 of the
\n      said affidavit that, in the event the
\n      said amount is not disbursed before<\/p>\n
      24.6.2011, he will deposit the said
\n      amount within one week from 24.6.2011 in
\n      this Court.\n<\/p>\n
               It is admitted position that,
\n      no such amount has been deposited in the<\/p>\n
      registry of this Court.     The learned
\n      counsel for the petitioner submits that,
\n      the bills which are submitted by the
\n      respondent to the Education Officer are<\/p>\n
      returned back by the Education Officer
\n      with remarks that the bills are not in
\n      accordance    with   the    Sixth    Pay
\n      Commission.\n<\/p>\n
      3.       This Contempt Petition is filed<\/p>\n
      alleging   disobedience   of   the   order
\n      passed by the learned Single Judge of
\n      this   Court   on  12.11.2009    in   Writ
\n      Petition     No.2177\/2009.           After<\/p>\n
      considering   the    grievance    of   the
\n      petitioner in the said Writ Petition,
\n      and after hearing the respondents, this
\n      Court, in para No.3 of the order dated
\n      12.11.2009, held:\n<\/p>\n
          “3. Grievance    is    made    by
\n          learned counsel for respondent
\n          No.4 that she is not being
\n          paid    salary   as     Assistant
\n          Teacher also.       Mr. Dhorde,
\n          learned    counsel     for    the
\n          petitioner   states    that   the
\n          unpaid amount of salary would
\n          be disbursed within six weeks<\/p>\n
                            ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                        11<\/span>
\n                                                     cp464.10<\/p>\n
          from today and the management<\/p>\n
          will   continue   to pay   to
\n          respondent      No.4   salary<\/p>\n
          admissible to the post of
\n          Assistant Teacher.”\n<\/p>\n
      4.       In spite of assurance given to<\/p>\n
      this Court in aforesaid Writ Petition by
\n      the respondents No.1 and 2 that the
\n      unpaid   amount   of   salary   would   be
\n      disbursed   within   six  weeks   to   the<\/p>\n
      petitioners from the date of passing of
\n      the order by the learned Single Judge on<\/p>\n
      12.11.2009, no amount towards unpaid
\n      salary was disbursed and that gave rise
\n      to filing this Contempt Petition.       As
\n      stated earlier, this Contempt Petition<\/p>\n
      was heard by this Court on 15.6.2011
\n      when the respondent No.1 filed affidavit
\n      on behalf of respondents No.1 and 2 on
\n      oath that in case no unpaid salary is<\/p>\n
      paid to the petitioner before 24.6.2011
\n      by   the  Education   Officer,   he   will<\/p>\n
      deposit the amount in the registry of
\n      this Court within a week from 24.6.2011.
\n      As stated earlier, the respondents No.1
\n      and 2 have not complied the statement<\/p>\n
      made before this Court in the month of
\n      November 2009 or they have not complied
\n      the assurance given to this Court by
\n      filing affidavit. Hence, this is a case
\n      of aggravated contempt.    The respondent
\n      Nos.1 and 2 have chosen to remain<\/p>\n
      absent.    Issue non-bailable-warrant to
\n      the respondents No.1 and 2 returnable on
\n      27th July 2011.    The Superintendent of
\n      Police, Parbhani to see that the non-
\n      bailable warrant issued by this Court is
\n      executed on the respondents No.1 and 2<\/span>
\n      and they are produced before this Court
\n      on 27th July 2011 at 10.30 a.m. by the
\n      concerned Police Station Officer.\n<\/p>\n
                            ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                      12<\/span><\/p>\n
                                                                     cp464.10<\/p>\n
                   5.       However, it will be open
\n                   for the respondents No.1 and 2 to<\/p>\n
                   file appropriate application, in
\n                   case they deposit entire amount
\n                   towards   unpaid   salary  to   the
\n                                               th
\n                   petitioner on or before 15     July
\n                   2011, to apply for dispensing with<\/p>\n
                   their presence or for recalling the
\n                   order of issuance of non-bailable
\n                   warrant if the said warrant is not
\n                   already executed on them.”<\/p>\n
\n\n\n\n\n                              \n            By   \n     Superintendent\n                   order    dated\n\n                             of\n                                     11th\n\n                                    Police,\n                                               July,\n\n                                                     Parbhani\n                                                             2011,        the\n\n                                                                          was\n                \n<\/pre>\n
     directed to execute non bailable warrant on<\/p>\n
     the alleged contemnor and produce him before<\/p>\n
     this Court.           The alleged contemnor chose to<\/p>\n
     remain        absent    on     11th      July,         2011        and,<\/p>\n
     therefore, this Court was constrained to issue<\/p>\n
     non bailable warrants against the respondent<\/p>\n
     nos.1 and 2.          There was also non compliance of<\/p>\n
     the affidavit given by the alleged contemnor<\/p>\n
     on 15th June, 2011 and the Advocate for the<\/p>\n
     contemnor made a statement before this Court<\/p>\n
     that     in    spite    of     his    sincere         efforts          to<\/p>\n
     impress upon the alleged contemnor to comply<\/p>\n
     with the orders of this Court, the alleged<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                    13<\/span>
\n                                                                  cp464.10<\/p>\n
     contemnor is not listening to him. The learned<\/p>\n
     Advocate appearing for the alleged contemnor<\/p>\n
     also    prayed    for    discharge      and     also       made       a<\/p>\n
     statement that notice has been sent to the<\/p>\n
     alleged contemnor by Regd. Post A.D. for such<\/p>\n
     discharge from the matter.\n<\/p>\n
     9.
\n            In the order dated 11th July, 2011 itself,<\/p>\n
     direction was given to the Superintendent of<\/p>\n
     Police to produce the respondent nos.1 and 2<\/p>\n
     i.e. alleged contemnor, on 27th July, 2011 at<\/p>\n
     10.30 a.m.       In pursuance to the said order, it<\/p>\n
     appears that the Superintendent of Police made<\/p>\n
     sincere efforts to comply the order\/direction<\/p>\n
     of execution of non bailable warrant on the<\/p>\n
     alleged contemnor.           However, according to the<\/p>\n
     Superintendent          of   Police,        Parbhani,             the<\/p>\n
     alleged contemnor was absconding and is not<\/p>\n
     traceable.\n<\/p>\n
     .      The   Superintendent        of   Police,          Parbhani<\/p>\n
     Smt. Maithali Jha,           filed detailed affidavit<\/p>\n
                                         ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                      14<\/span>
\n                                                                      cp464.10<\/p>\n
     on 5th August, 2011.                In para 4 of the said<\/p>\n
     affidavit, it is stated that she had taken<\/p>\n
     steps for compliance of the order passed by<\/p>\n
     this    Court    on    11.07.2011.             She      formed        two<\/p>\n
     squads consisting of Police Inspector, Police<\/p>\n
     Sub Inspector and other ten police personal<\/p>\n
     and    specific       directions       were       given        to     the<\/p>\n
     squads     ig established       for<\/p>\n
     execution of non bailable warrant that they
\n                                                 the      purpose            of<\/p>\n
     should    take        all     efforts       and       arrest          the<\/p>\n
     respondent No.1 and produce him before this<\/p>\n
     Court.        It further appears that the inquiry<\/p>\n
     was made with the nearest relatives of the<\/p>\n
     alleged contemnor on 26.6.2011.                      However, the<\/p>\n
     police    officers          could     not    get       any       useful<\/p>\n
     information from the nearest relatives.                               One<\/p>\n
     person namely Sk. Jafar Sk. Chand was also<\/p>\n
     known    to    the    alleged        contemnor        and      he     was<\/p>\n
     asked to inform the whereabouts of the alleged<\/p>\n
     contemnor.       However, he was not able to tell<\/p>\n
     the whereabouts of the alleged contemnor.\n<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                     15<\/span><\/p>\n
                                                                    cp464.10<\/p>\n
     .     It further appears that the police squad<\/p>\n
     collected information of the mobile phone of<\/p>\n
     the alleged contemnor and then they tried to<\/p>\n
     find out the location and whereabouts of the<\/p>\n
     alleged contemnor.          They also inquired with<\/p>\n
     the staff of Aamena Urdu Primary School                        school<\/p>\n
     on    29th    July,      2011       and     they        got       some<\/p>\n
     informationig     that   the    alleged<\/p>\n
     contact one of the staff members namely
\n                                                     contemnor           did<\/p>\n
                                                                         Mr.\n<\/p>\n
     Abdul Hai from his mobile phone.                          Then the<\/p>\n
     squad proceeded to find out the location of<\/p>\n
     the   alleged     contemnor.         It     further          appears<\/p>\n
     that the department has taken all the efforts<\/p>\n
     to trace out the alleged contemnor.                        However,<\/p>\n
     they could not succeed in their attempt since<\/p>\n
     the alleged contemnor was absconding and was<\/p>\n
     not     making      himself         available             to        the<\/p>\n
     jurisdiction of this Court. Further time was<\/p>\n
     granted      to   the    Superintendent              of      Police,<\/p>\n
     Parbhani on 27th July, 2011 till 1st August,<\/p>\n
     2011.     However, further attempt of the police<\/p>\n
     department to trace out the alleged contemnor<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                      16<\/span>
\n                                                                    cp464.10<\/p>\n
     failed.\n<\/p>\n
     10. The        Superintendent        of    Police          remained<\/p>\n
     present before this Court on 8th August, 2011.\n<\/p>\n
     On her request further time was granted and<\/p>\n
     matter was kept on 11th August, 2011. On said<\/p>\n
     date Advocate Mr.P.N. Kalani appeared for the<\/p>\n
     alleged contemnor and tried to submit that,<\/p>\n
     the alleged contemnor is ready to deposit some<\/p>\n
     amount.        However,       he was unable to tell the<\/p>\n
     whereabouts of the alleged contemnor and he<\/p>\n
     showed total ignorance about the whereabouts<\/p>\n
     of the alleged contemnor.\n<\/p>\n
     11. On 25th August, 2011, again the matter was<\/p>\n
     taken up for hearing and time was granted to<\/p>\n
     the Superintendent of Police, Parbhani.                           From<\/p>\n
     time    to     time,    affidavits     and      documents           are<\/p>\n
     produced       on    record    showing     that       the      police<\/p>\n
     authorities          have     made   sincere         efforts          to<\/p>\n
     execute non bailable warrant issued by this<\/p>\n
     Court     on        Mohd.   Osman    S\/o       Mohd.         Ismail.\n<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                    17<\/span><\/p>\n
                                                                     cp464.10<\/p>\n
     However,      their   efforts      failed            because         the<\/p>\n
     respondent        alleged     contemnor             was         hiding<\/p>\n
     himself and was not traceable.\n<\/p>\n
     .      On 6th September, 2011, the matter was not<\/p>\n
     on Board because on earlier date of hearing,<\/p>\n
     same    was    adjourned     to    9th     September,            2011.<\/p>\n
\n\n     The       \n            learned     AGP    mentioned\n\n<\/pre>\n
     brought to the notice of this Court that,
\n                                                 the       matter         and<\/p>\n
                                                                          the<\/p>\n
     police department is successful in arresting<\/p>\n
     the    respondent     No.1    Mohd.        Osman        s\/o      Mohd.\n<\/p>\n
     Ismail – alleged contemnor and he is brought<\/p>\n
     before    this     Court.         On   mentioning             by     the<\/p>\n
     learned AGP and also the Advocate for the<\/p>\n
     petitioner, the matter was taken up at 4.30<\/p>\n
     p.m.      Even,     the   Advocate         for      the      alleged<\/p>\n
     contemnor was present.                 This Court on 6th<\/p>\n
     September, 2011 passed the following order:\n<\/p>\n
                   “Not on board.   Matter is mentioned
\n                   by learned A.G.P., taken on board.<\/p><\/blockquote>\n
                   2.       Learned   A.G.P.   appearing   for
\n                   the State makes a statement that, in <\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                       18<\/span>
\n                                                     cp464.10<\/p>\n
       pursuant   to   the   orders   passed   by <\/p>\n
       this   Court   earlier,   respondent   No.1
\n       Mohammed   Osman   s\/o   Mohd.   Ismail   is <\/p>\n
       arrested   and   brought   before   this
\n       Court by the Police Inspector, Crime
\n       Branch, Parbhani.\n<\/p>\n
       3.             This   Court   on   11-07-2011 <\/p>\n
       issued   N.B.W.   to   respondent   No.1
\n       Mohammed   Osman   s\/o   Mohd.   Ismail
\n       which   was   made   returnable   on
\n       27-07-2011.     The   Superintendent   of <\/p>\n
       Police,   Parbhani   was   directed   to
\n       execute   the   N.B.W.   on   the   said <\/p>\n
       respondent and to produce him before
\n       this Court on 27-07-2011.\n<\/p>\n
       .      On 27-07-2011 it was reported
\n       by   the   Superintendent   of   Police,
\n       Parbhani   that   respondent     Mohammed
\n       Osman   s\/o   Mohd.   Ismail   is   hiding
\n       himself   and   is   not   traceable.     By <\/p>\n
       order   dated   27-07-2011   further   time
\n       was granted to the Superintendent of <\/p>\n
       Police,Parbhani   to   take   appropriate
\n       steps   to   execute   the   N.B.W.     The
\n       matter   was   kept   on   01-08-2011.     On
\n       01-08-2011 again it was reported by <\/p>\n
       the   Superintendent   of   Police,
\n       Parbhani   that,   in   spite   of   their
\n       sincere efforts, they were not able
\n       to   trace   out   the   respondent.     On
\n       01-08-2011 this Court again directed <\/p>\n
       the     Superintendent   of   Police,
\n       Parbhani   to   continue   search   of   the
\n       respondent   and   produce   him   before
\n       this   Court   on   his   arrest.     The
\n       matter was adjourned to 08-08-2011.\n<\/p>\n
       4.       On   08-8-2011   also,   the
\n       Superintendent   of   Police,   Parbhani
\n       was   not   able   to   produce   the
\n       respondent   before   this   Court.\n<\/p>\n
                            ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                       19<\/span><\/p>\n
                                                    cp464.10<\/p>\n
       Therefore, further time was granted.\n<\/p>\n
       Matter   was   kept   on   11-08-2011.
\n       Again   time   was   sought   by   the <\/p>\n
       Superintendent   of   Police,   Parbhani
\n       for   execution   of   N.B.W.   and   for
\n       producing the respondent before this
\n       Court.   However,     Superintendent   of
\n       Police,   Parbhani   even   after   sincere <\/p>\n
       efforts   could   not   arrest   the
\n       respondent,   therefore,   further   time
\n       was   granted   to     Superintendent   of
\n       Police,   Parbhani   to   take   further <\/p>\n
       appropriate   steps   as   permissible
\n       under   rules   and   report   this   Court <\/p>\n
       about   such   steps   taken   by   filing
\n       affidavit   on   the   adjourned   date.
\n       Matter was adjourned to 09-09-2011.\n<\/p>\n
       5.           Today,   learned   A.G.P.\n<\/p>\n
       mentioned   the   matter   and
\n       accordingly, the matter is taken on
\n       board at 4-30 p.m.   Learned A.G.P.\n<\/p>\n
       submits   that,   in   pursuant   to   the
\n       orders   passed   by   this   Court, <\/p>\n
       respondent     Mohammed   Osman   s\/o
\n       Mohd. Ismail is arrested and he is
\n       produced  before  this  Court.    Since
\n       the  Contempt  Petition  is fixed for <\/p>\n
       hearing   on   09-09-2011   and   if   the
\n       respondent   –   alleged   contemnor   is
\n       left free, in that case, he may not
\n       be traceable  again.    Therefore,  in
\n       the   aforestated   background,   this <\/p>\n
       Court   feel   it   appropriate   that,
\n       till   the   Contempt   Petition   is
\n       heard,   the   respondent     Mohammed
\n       Osman  s\/o Mohd.  Ismail  is required
\n       to   be   kept   in   Harsul   Jail,
\n       Aurangabad.   Accordingly,   it   is
\n       ordered   that,   respondent     Mohammed
\n       Osman   s\/o   Mohd.   Ismail   should   be
\n       kept   in   Harsul   Jail,   Aurangabad
\n       till   09-09-2011   and   he   should   be <\/p>\n
                           ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                    20<\/span>
\n                                                                   cp464.10<\/p>\n
                 produced   before   this   Court   on <\/p>\n
                 09-09-2011   at   the   time   of   hearing
\n                 of the Contempt Petition.”\n<\/p>\n
     12. The matter was taken up for hearing on 9th<\/p>\n
     September, 2011. This Court extensively heard<\/p>\n
     the arguments of the learned Counsel for the<\/p>\n
     alleged    contemnor     and       since    Court       time       was<\/p>\n
     over,     the   matter      remained       part-heard            and,<\/p>\n
     therefore, it was directed to be listed for<\/p>\n
     further    hearing     on   12th     September,           2011       at<\/p>\n
     10.30 a.m. i.e. today. The alleged contemnor<\/p>\n
     was directed to be taken back                 to the Central<\/p>\n
     Prison at Harsool, Aurangabad on 09.09.2011.\n<\/p>\n
     On query by this Court to the learned Counsel<\/p>\n
     for the alleged contemnor that whether he is<\/p>\n
     ready to give assurance that, if the alleged<\/p>\n
     contemnor is released, in that case, alleged<\/p>\n
     contemnor will make himself available on the<\/p>\n
     next date of hearing. The reply of the learned<\/p>\n
     Advocate for respondent i.e. alleged contemnor<\/p>\n
     was     that,   he   cannot        give    such       assurance.\n<\/p>\n
     Therefore,      this     Court       directed          that        the<\/p>\n
                                          ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                   21<\/span>
\n                                                                  cp464.10<\/p>\n
     alleged   contemnor       should     be       taken      back       to<\/p>\n
     Central     Prison,         Harsool,          with         further<\/p>\n
     direction to produce him before this Court on<\/p>\n
     12th      September,         2011          i.e.,             today.\n<\/p>\n
     Accordingly, the alleged contemnor is produced<\/p>\n
     before this Court and he is present in the<\/p>\n
     Court hall.\n<\/p>\n
     13. The<\/p>\n
                 learned    Counsel       appearing           for      the<\/p>\n
     respondent nos.1 and 2 i.e. alleged contemnor,<\/p>\n
     submitted     that     there       are        no     mitigating<\/p>\n
     circumstances to the respondent nos. 1 and 2<\/p>\n
     i.e.   alleged    contemnor.             He    is      ready        to<\/p>\n
     deposit   the    amount     within     two         weeks.         The<\/p>\n
     learned Counsel invited my attention to paras<\/p>\n
     2 and 3 of the affidavit filed by him and<\/p>\n
     submitted     that    the     alleged         contemnor           has<\/p>\n
     tendered sincere apology.           The learned Counsel<\/p>\n
     also invited my attention to paras 6 and 7 of<\/p>\n
     the affidavit filed by the alleged contemnor<\/p>\n
     and submitted that the petitioner did not hand<\/p>\n
     over the charge to respondent No.3 and as                             a<\/p>\n
                                         ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                     22<\/span>
\n                                                                    cp464.10<\/p>\n
     result, necessary documents to prepare salary<\/p>\n
     bills   were    not     available         with     the       alleged<\/p>\n
     contemnor.      It is further submitted that the<\/p>\n
     alleged contemnor was under impression that<\/p>\n
     respondent      No.3     herein      is     responsible             for<\/p>\n
     preparing      the    bills.        He    also       invited          my<\/p>\n
     attention to para 9 of the affidavit and other<\/p>\n
     documents<\/p>\n
     Education
\n               ig   and<\/p>\n
                    Officer
\n                           the    letter<\/p>\n
                                  and
\n                                               addressed<\/p>\n
                                         submitted           that,
\n                                                                  to     the<\/p>\n
                                                                         the<\/p>\n
     correspondence placed on record would make it<\/p>\n
     clear   that    the     relevant      record        \/    documents<\/p>\n
     were    not     in     possession         of      the        alleged<\/p>\n
     contemnor so as to comply with the undertaking<\/p>\n
     given   in    the    month     of   November,           2009      and,<\/p>\n
     therefore, he could not comply with the said<\/p>\n
     undertaking.           The    learned       Counsel          further<\/p>\n
     invited my attention to the fact that some of<\/p>\n
     the record was in the custody of the landlord,<\/p>\n
     the school premises were rented premises and<\/p>\n
     as a result of non payment of rent to the<\/p>\n
     original      landlord,      some    of     the      record         was<\/p>\n
     seized by the landlord and he was not ready to<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                      23<\/span>
\n                                                                    cp464.10<\/p>\n
     hand over the same to the management.                               The<\/p>\n
     learned      Counsel     further     submitted           that       the<\/p>\n
     alleged contemnor is tendering unconditional<\/p>\n
     apology for running away from the process of<\/p>\n
     law.    He    fairly    submitted      that,        the      alleged<\/p>\n
     contemnor is running educational institution<\/p>\n
     and hopefully, he is also educated and it is<\/p>\n
     expected from him that he should not run away<\/p>\n
     from the process of law              and the jurisdiction<\/p>\n
     of this Court.          It is further submitted that<\/p>\n
     it was bounden duty of the alleged contemnor<\/p>\n
     to submit to the jurisdiction of this Court.\n<\/p>\n
     It     is    further     submitted      that       the       alleged<\/p>\n
     contemnor, due to stringency of funds, tried<\/p>\n
     to keep away himself from the jurisdiction of<\/p>\n
     this Court.       It is further submitted that the<\/p>\n
     police department might have incurred expenses<\/p>\n
     for    finding    out    the    alleged       contemnor           and,<\/p>\n
     therefore, such expenses can be recovered from<\/p>\n
     the alleged contemnor. The learned Counsel for<\/p>\n
     the alleged contemnor fairly submitted that<\/p>\n
     this    is    a   case     of    contempt.         However,           he<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                  24<\/span>
\n                                                                 cp464.10<\/p>\n
     submits   that    for    want    of    funds        and      since<\/p>\n
     record was not available for preparing bills,<\/p>\n
     the alleged contemnor could not take further<\/p>\n
     steps.\n<\/p>\n
     14. The     learned      counsel      for       the       alleged<\/p>\n
     contemnor vehemently argued before this Court<\/p>\n
     that, the respondent will deposit the entire<\/p>\n
     unpaid salary amount within two weeks.\n<\/p>\n
     15. The     learned      Counsel      for       the       alleged<\/p>\n
     contemnor    submitted     that,      during        the       year,<\/p>\n
     2010, no salary bills were submitted since the<\/p>\n
     record    was   not   available       with      the       alleged<\/p>\n
     contemnor.       After    the      record           was        made<\/p>\n
     available, he submitted the salary bills of<\/p>\n
     the petitioner in the month of July, 2011.\n<\/p>\n
     .   It is further submitted that, the act of<\/p>\n
     the alleged contemnor to run away from the<\/p>\n
     jurisdiction of this Court and to go in some<\/p>\n
     other State cannot be countenanced.                     However,<\/p>\n
                                        ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                  25<\/span>
\n                                                                 cp464.10<\/p>\n
     there was no intention as such on the part of<\/p>\n
     the alleged contemnor and he left the State to<\/p>\n
     collect funds to be deposited towards arrears<\/p>\n
     of   petitioner’s      salary.           It      is       further<\/p>\n
     submitted that there was no intention on the<\/p>\n
     part of the alleged contemnor to harass the<\/p>\n
     petitioner.     He had knowledge that he has to<\/p>\n
     submit bills and salary amount will have to be<\/p>\n
     paid to the petitioner.\n<\/p>\n
     .    The learned counsel further submits that<\/p>\n
     the alleged contemnor is not having previous<\/p>\n
     conviction     in    any   crime     and      he      has      also<\/p>\n
     submitted     unconditional        apology         by       filing<\/p>\n
     affidavit as also orally through Counsel.                          It<\/p>\n
     is   further        submitted      that        the        alleged<\/p>\n
     contemnor appealing to the mercy jurisdiction<\/p>\n
     of   this     Court.        The      learned            Counsel,<\/p>\n
     therefore, would submit that, the notice may<\/p>\n
     be discharged and contempt proceedings may be<\/p>\n
     dropped.       At    the   cost    of      repetition,             he<\/p>\n
     submits that the alleged contemnor is ready to<\/p>\n
                                        ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                        26<\/span>
\n                                                                       cp464.10<\/p>\n
     deposit the amount towards arrears of unpaid<\/p>\n
     salary    of    the    petitioner         within         two      weeks.\n<\/p>\n
     However,       he   fairly     submits         that       he      cannot<\/p>\n
     assure      this      Court       that      if       the        alleged<\/p>\n
     contemnor is released, he will be available to<\/p>\n
     the further proceedings and will subject to<\/p>\n
     the jurisdiction of this Court and therefore,<\/p>\n
     during that period of two weeks, he may be<\/p>\n
     kept in jail as he is already directed to be<\/p>\n
     kept in Central Jail, Harsool.\n<\/p>\n
     16. The     learned      Counsel         for     the      petitioner<\/p>\n
     invited my attention to the order dated 12th<\/p>\n
     November, 2009 passed by this Court in Writ<\/p>\n
     Petition No.2177 of 2009 and in particular,<\/p>\n
     para 3 of the said order.                He submits that the<\/p>\n
     alleged     contemnor         –        respondent          No.1        has<\/p>\n
     committed breach of the undertaking given to<\/p>\n
     this Court through his Counsel in two ways.\n<\/p>\n
     Firstly, he did not deposit the unpaid amount<\/p>\n
     of salary within six weeks as undertaken by<\/p>\n
     him   and      further,       the       management           did       not<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                      27<\/span>
\n                                                                        cp464.10<\/p>\n
     continue to pay the salary to the petitioner<\/p>\n
     as    admissible         to    the    post           of      Assistant<\/p>\n
     Teacher.\n<\/p>\n
     17. It      is     further     submitted             that       in      the<\/p>\n
     present contempt petition, the notices were<\/p>\n
     issued on 15.12.2010, same were served upon<\/p>\n
     the alleged contemnor, even then the salary<\/p>\n
     for the month of January, 2011 to March, 2011<\/p>\n
     has   not    been       paid   to    the        petitioner.             The<\/p>\n
     learned counsel invited my attention to the<\/p>\n
     Rejoinder filed by the petitioner at page 89<\/p>\n
     of the compilation and submitted that in spite<\/p>\n
     of notice issued in this contempt petition,<\/p>\n
     the    respondent\/alleged            contemnor             has       given<\/p>\n
     threats     to    the    petitioner,           that       she      should<\/p>\n
     withdraw the contempt petition otherwise she<\/p>\n
     would face serious consequences. It is further<\/p>\n
     submitted        that    the   affidavit            was      filed        by<\/p>\n
     respondent\/alleged contemnor on 15.06.2011 and<\/p>\n
     a    statement     was    made       in     it      that       all      the<\/p>\n
     arrears of the petitioner’s unpaid salary will<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                      28<\/span>
\n                                                                     cp464.10<\/p>\n
     be paid and bills will be forwarded to the<\/p>\n
     Education Officer (Primary), Zilla Parishad,<\/p>\n
     Nanded.     However,      the        said    bills        were       not<\/p>\n
     submitted as undertaken and for the first time<\/p>\n
     on    2nd      July,    2011,        the     said       bills        are<\/p>\n
     submitted to the Education Officer. Therefore,<\/p>\n
     according to the counsel for the petitioner,<\/p>\n
     it also amounts to breach of undertaking given<\/p>\n
     to this Court. It is further submitted that,<\/p>\n
     in the said affidavit further assurance was<\/p>\n
     given     to    this    Court         that,        in    case        the<\/p>\n
     Education Officer (Primary), Zilla Parishad,<\/p>\n
     Nanded fails to clear the arrears of salary of<\/p>\n
     the   petitioner,       in   that          case,    the       alleged<\/p>\n
     contemnor       will    deposit        the    amount          towards<\/p>\n
     arrears of unpaid salary. However, the said<\/p>\n
     undertaking       has    not         been     complied           with.\n<\/p>\n
     Learned     counsel      further           submits       that        the<\/p>\n
     Hon’ble Supreme Court in the case of “Rama<\/p>\n
     Narang V\/s Ramesh Narang and another” reported<\/p>\n
     in “A.I.R. 2007 S.C. 2029” has taken a view<\/p>\n
     that if there is willful breach of undertaking<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                         29<\/span>
\n                                                                        cp464.10<\/p>\n
     given     to    the    Court,           the    said      amounts          to<\/p>\n
     contempt and wilful disobedience of the order<\/p>\n
     passed by the Court. The learned Counsel also<\/p>\n
     pressed in to service the reported judgment of<\/p>\n
     the Supreme Court in the case of “Pallav Sheth<\/p>\n
     V\/s Custodian” reported at ” 2001 DGLS (Soft)<\/p>\n
     980″    and     submitted         that        the   provisions            of<\/p>\n
     Section 20 of the Contempt of Courts Act will<\/p>\n
     not come in the way of the petitioner, since<\/p>\n
     the contempt filed by the petitioner is well<\/p>\n
     within limitation. Therefore, learned counsel<\/p>\n
     for    the     petitioner         would       submit       that       this<\/p>\n
     Court    may    punish       the    alleged          contemnor          for<\/p>\n
     committing contempt and willful disobedience<\/p>\n
     of the order passed by this Court.\n<\/p>\n
     18. The        Counsel      for     the       Education          Officer<\/p>\n
     (Primary), Zilla Parishad submits that he is<\/p>\n
     taking       sincere       efforts       to     get      the       amount<\/p>\n
     sanctioned       and     paid      to     the       petitioner.           He<\/p>\n
     submits      that     he    has     already         submitted           the<\/p>\n
     salary bills of the petitioner to the Director<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                     30<\/span>
\n                                                                     cp464.10<\/p>\n
     of    Education,       (Primary)          Maharashtra           State,<\/p>\n
     Pune on 4th August, 2011 and thereafter, the<\/p>\n
     reminders have also been sent to the concerned<\/p>\n
     Authority on 20th August and 9th September,<\/p>\n
     2011. Therefore, the learned counsel for the<\/p>\n
     Education     Officer        would    submit         that       he     is<\/p>\n
     taking    sincere      efforts        to    get       the       amount<\/p>\n
     sanctioned from the higher authorities so that<\/p>\n
     the payment should be made to the petitioner.\n<\/p>\n
     19. I     have     given     due     consideration            to     the<\/p>\n
     submissions of the Counsel appearing for the<\/p>\n
     respective parties. Original papers of                             Writ<\/p>\n
     Petition no. 2177\/2009 were called and same<\/p>\n
     are made available by Registry for perusal.\n<\/p>\n
     The      counsel       for     the         respondent\/alleged<\/p>\n
     contemnor        was    heard        at     length          at       9th<\/p>\n
     September, 2011. Thereafter today also he has<\/p>\n
     advanced his submission at length.\n<\/p>\n
     20. The respondent no.1\/alleged contemnor is<\/p>\n
     added    as   respondent           no.1    in     his       personal<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                           31<\/span>
\n                                                                          cp464.10<\/p>\n
     capacity      and       as    a    respondent           no.2       in     the<\/p>\n
     capacity      of    President             of    respondent             no.2-\n<\/p>\n
     Institution.\n<\/p>\n
            From perusal of the original proceedings<\/p>\n
     in    Writ    Petition        no.      2177\/2009,           it     appears<\/p>\n
     that the respondent\/alleged contemnor did file<\/p>\n
     the    said<\/p>\n
     judgment<\/p>\n
                   and
\n                       Writ<\/p>\n
                         order
\n                                  Petition<\/p>\n
                                       of      the
\n                                                    aggrieved<\/p>\n
                                                     School
\n                                                                       by<\/p>\n
                                                                    Tribunal,
\n                                                                               the<\/p>\n
     Latur. In said Writ Petition this Court was<\/p>\n
     pleased to issue Rule and interim relief in<\/p>\n
     terms of prayer clause `C’. However, so far as<\/p>\n
     the salary of the petitioner for the post of<\/p>\n
     Assistant Teacher is concerned, same was not<\/p>\n
     paid to the petitioner. Therefore, at the time<\/p>\n
     of    hearing      of    the      said     Writ       Petition,           the<\/p>\n
     grievance was made in respect of said unpaid<\/p>\n
     salary.      In    the       above     background           this       Court<\/p>\n
     held    in    paragraph           no.3     of    the      order        dated<\/p>\n
     12.09.2009 as under :\n<\/p>\n
                  “Mr. Dhorde, learned Counsel for the<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                     32<\/span>
\n                                                                  cp464.10<\/p>\n
                petitioner states that the unpaid<\/p>\n
                amount of salary would be disbursed
\n                within six weeks from today and the<\/p>\n
                management will continue to pay to
\n                respondent No.4 salary admissible to
\n                the post of Assistant teacher.”\n<\/p><\/blockquote>\n
     21. Therefore, reading para no.3 of the order<\/p>\n
     of this Court in the said Writ Petition, would<\/p>\n
     make     it    abundantly           clear           that          the<\/p>\n
     respondent\/alleged contemnor had given solemn<\/p>\n
     undertaking to this Court through his counsel<\/p>\n
     Mr. Dhorde that unpaid amount of salary of the<\/p>\n
     petitioner will be disbursed within six weeks<\/p>\n
     from 12th November, 2009 to the petitioner,<\/p>\n
     who was respondent no.4 in the Writ Petition<\/p>\n
     and also the Management will continue to pay<\/p>\n
     salary of respondent no.4 petitioner herein.\n<\/p>\n
     .      It is admitted position that in spite of<\/p>\n
     solemn   undertaking       given    to     this      Court        the<\/p>\n
     alleged contemnor has not paid the amount of<\/p>\n
     unpaid   salary     to   the    petitioner          within        six<\/p>\n
     weeks from 12.11.2009, or till today, and also<\/p>\n
     the    Management    has   been     failed        to     pay      the<\/p>\n
                                         ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                      33<\/span>
\n                                                                     cp464.10<\/p>\n
     regular salary to the petitioner. Therefore,<\/p>\n
     there is clear breach of undertaking given to<\/p>\n
     this Court by the alleged contemnor. It is<\/p>\n
     also not in dispute that the alleged contemnor<\/p>\n
     did     not    file      an    application           either          for<\/p>\n
     extension of time or modification of the said<\/p>\n
     order,      therefore,        the    net    position          emerges<\/p>\n
     that the observations of this Court in para 3<\/p>\n
     of the order dated 12.11.2009 in Writ Petition<\/p>\n
     no.     2177\/2009        on     the        basis       of       solemn<\/p>\n
     undertaking are still in force. Therefore, the<\/p>\n
     stand    taken      by   the    alleged        contemnor           that<\/p>\n
     record was not available, and therefore, he<\/p>\n
     could not prepare the salary bills is not part<\/p>\n
     of    the     undertaking.          From    reading          of      the<\/p>\n
     affidavit      in     reply     filed       by      the       alleged<\/p>\n
     contemnor, bone of contention appears to be<\/p>\n
     that necessary record was not available for<\/p>\n
     preparation of salary bills of the petitioner,<\/p>\n
     and      therefore,            the         respondent\/alleged<\/p>\n
     contemnor could not submit salary bills to the<\/p>\n
     Education Officer. Further stand taken in the<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                     34<\/span>
\n                                                                       cp464.10<\/p>\n
     affidavit in reply appears to be that, the<\/p>\n
     alleged         contemnor         was         under           bonafide<\/p>\n
     impression that respondent no.3 is responsible<\/p>\n
     for unpaid amount of salary. Such stand taken<\/p>\n
     by the respondent\/contemnor is after thought.\n<\/p>\n
     The undertaking given by the alleged contemnor<\/p>\n
     does    not     mention   preparation             of     any      salary<\/p>\n
     bills
\n               and    submitting         it     to<\/p>\n
     Officer and get amount sanctioned and then to
\n                                                       the       Education<\/p>\n
     disburse the said amount to the petitioner.\n<\/p>\n
     The stand taken by the respondent                             that the<\/p>\n
     record    was    not    available         and      therefore,            he<\/p>\n
     could not prepare the salary bills and submit<\/p>\n
     to      the      Education          Officer            cannot            be<\/p>\n
     countenanced. It was open for the contemnor to<\/p>\n
     file     application      in      pending         Writ        petition<\/p>\n
     either     for       modification        of       the      order         or<\/p>\n
     extension       of    time.    However,          admittedly,             no<\/p>\n
     such     application        has     been         filed         by      the<\/p>\n
     contemnor, the order dated 12.11.2009 passed<\/p>\n
     by this Court in Writ Petition no. 2177\/2009<\/p>\n
     is very much in force and therefore, there is<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                   35<\/span>
\n                                                                   cp464.10<\/p>\n
     clear    willful     disobedience           of      undertaking<\/p>\n
     given to this court by the respondent\/alleged<\/p>\n
     contemnor.\n<\/p>\n
     22. The    second    point        which    requires           to     be<\/p>\n
     considered      in   this    Contempt            Petition          is,<\/p>\n
     affidavit filed by the alleged contemnor on<\/p>\n
     15th
\n             June,<\/p>\n
     Proceedings.<\/p>\n
\n                      2011<\/span>\n\n                      The\n                             in\n\n                             said\n                                    the        present\n\n                                        affidavit\n                                                               Contempt\n\n                                                            filed         by\n              \n<\/pre>\n
     respondent\/alleged contemnor is at page 94 of<\/p>\n
     the compilation of the Contempt Petition which<\/p>\n
     reads thus :-\n<\/p>\n
               “I,Mohammad Osman S\/o. Mohd. Ismail,
\n               Age : 56 years, Occ : Nil, R\/o C\/o<\/p>\n
               Rahim Bhai Engineer, Parbhani, Tq. &
\n               Dist. Parbhani, the President of
\n               Madarse   Noorul    Uloom   Education
\n               Society, Nanded do hereby state on
\n               solemn affirmation as under:-\n<\/p><\/blockquote>\n
               1.   I say that, I will submit the
\n               bill   regarding  unpaid   amount of
\n               salary to the petitioner within 3
\n               days from today to the Respondent no.
\n               4-Education Officer (Primary), Zilla
\n               Parishad, Nanded and I will take
\n               steps   to   get   the   said   amount
\n               disbursed by the Respondent no.4 on
\n               or before 24.06.2011.\n<\/p><\/blockquote>\n
                                          ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                    36<\/span><\/p>\n
                                                                       cp464.10<\/p>\n<\/blockquote>\n
                   2.   I say that, in the event the
\n                   said amount is not disbursed before<\/p>\n
                   24.06.2011, I will deposit the said
\n                   amount    within   one   week  from
\n                   24.06.2011 in    this  Hon’ble High
\n                   Court.”\n<\/p><\/blockquote>\n
     23. From perusal of the para no.1 of the said<\/p>\n
     affidavit      reproduced         hereinabove,              there        is<\/p>\n
     solemn    undertaking        given       by      the      respondent<\/p>\n
     that,    he
\n                ig  will      submit        the     bills        regarding<\/p>\n
     unpaid amount of salary within three days from<\/p>\n
     the   date     of   filing        of    the      affidavit           i.e.<\/p>\n
     15.06.2011,         to     respondent              no.4-Education<\/p>\n
     Officer (Primary), Zilla Parishad, Nanded. It<\/p>\n
     is stated in para no.1 that, he will take<\/p>\n
     steps to get the amount disbursed on or before<\/p>\n
     24.06.2011 and in the event the said amount is<\/p>\n
     not     disbursed        before        24.06.2011,           he      will<\/p>\n
     deposit the said amount within one week from<\/p>\n
     24.06.2011 in this Court.\n<\/p>\n
     24. Admittedly till the date the undertaking<\/p>\n
     given to this Court by filing affidavit on<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                  37<\/span>
\n                                                                     cp464.10<\/p>\n
     oath has not been complied with. It is also<\/p>\n
     relevant to mention that first time respondent<\/p>\n
     no.1 submitted bills towards unpaid salary of<\/p>\n
     the petitioner to the Education Officer on 2nd<\/p>\n
     July, 2011 i.e. after 24.06.2011. As stated<\/p>\n
     earlier    no   amount    towards        unpaid          salary       or<\/p>\n
     further salary is paid to the petitioner till<\/p>\n
     this date.\n<\/p>\n
     25. This     Court   on   6th     September,             2011       has<\/p>\n
     passed    the    detailed     order          indicating             the<\/p>\n
     conduct of the contemnor in running away from<\/p>\n
     the jurisdiction of this Court and not making<\/p>\n
     available himself in this Contempt Proceeding<\/p>\n
     on various dates fixed for hearing. The order<\/p>\n
     dated     6th     September,          2011         is        already<\/p>\n
     reproduced      hereinabove      in     para        11     of     this<\/p>\n
     Judgment. The conduct of the respondent nos. 1<\/p>\n
     and 2\/alleged contemnor is totally unreliable,<\/p>\n
     untrustworthy and unworthy, therefore, he does<\/p>\n
     not deserve any leniency.\n<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                    38<\/span><\/p>\n
                                                                   cp464.10<\/p>\n
     26. Therefore, taking into consideration the<\/p>\n
     clear breach of undertaking as referred above,<\/p>\n
     this Court was not left with any option but to<\/p>\n
     decide this Contempt Petition in presence of<\/p>\n
     the    alleged    contemnor\/respondent.               Therefore,<\/p>\n
     the non-bailable warrant was issued. However,<\/p>\n
     the alleged contemnor absconded and did not<\/p>\n
     make available himself to the jurisdiction of<\/p>\n
     this Court. The matter was fixed for number of<\/p>\n
     dates    and     report       is     received          from        the<\/p>\n
     Superintendent of         Police, Parbhani that the<\/p>\n
     respondent\/alleged contemnor is hiding himself<\/p>\n
     and is not traceable. Even Superintendent of<\/p>\n
     Police, Parbhani was required to be summoned<\/p>\n
     by this Court and she remained present before<\/p>\n
     this    Court.    However,     alleged         contemnor           not<\/p>\n
     only    absconded       but   went    to     another          State.\n<\/p>\n
     Therefore,       when    he    was     produced            on      6th<\/p>\n
     September, 2011, this Court was not sure as to<\/p>\n
     whether the alleged contemnor if released will<\/p>\n
     make      himself         available           for           further<\/p>\n
     proceedings.\n<\/p>\n
                                          ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                        39<\/span><\/p>\n
                                                                        cp464.10<\/p>\n
     27. This Court in this contempt petition is<\/p>\n
     examining          the     contentions          raised          by      the<\/p>\n
     petitioners         that        solemn    undertaking                given<\/p>\n
     before this Court is breached\/ violated by the<\/p>\n
     alleged       contemnor\/         respondent         and       if     this<\/p>\n
     Court      allows          to        violate\/         breach            the<\/p>\n
     public<\/p>\n
     undertakings and directions, in that case, the<\/p>\n
               at       large     would       lose     faith         in      the<\/p>\n
     judicial system and sanctity of giving such<\/p>\n
     undertakings         and    passing      the      orders        on      the<\/p>\n
     basis    of    such      undertakings         would        be      of    no<\/p>\n
     avail.\n<\/p>\n
     28. The Constitutional Bench of the Supreme<\/p>\n
     Court,        in     case       of     Supreme          Court           Bar<\/p>\n
     Association Vs. Union of India & anr. [ (1998)<\/p>\n
     4 SCC 409 ], in para 42 held :\n<\/p>\n
              “42. The contempt of court is a
\n              special    jurisdiction    to    be
\n              exercised   sparingly    and   with
\n              caution whenever an act adversely
\n              affects   the   administration   of<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                              40<\/span>
\n                                                           cp464.10<\/p>\n
           justice or which tends to impede<\/p>\n
           its course or tends to shake
\n           public confidence in the judicial<\/p>\n
           institutions.      This jurisdiction
\n           may also be exercised when the act
\n           complained of adversely affects
\n           the majesty of law or dignity of
\n           the courts.         The purpose of<\/p>\n
           contempt jurisdiction is to uphold
\n           the majesty and dignity of the
\n           courts of law.      It is an unusual
\n           type   of   jurisdiction combining<\/p>\n
           “the jury, the judge and the
\n           hangman” and it is so because the<\/p>\n
           court is not adjudicating upon any
\n           claim between litigating parties.
\n           This jurisdiction is not exercised
\n           to protect the dignity of an<\/p>\n
           individual judge but to protect
\n           the administration of justice from
\n           being maligned.       In the general
\n           interest of the community it is<\/p>\n
           imperative that the authority of
\n           courts should not be imperilled<\/p>\n
           and     there     should      be     no
\n           unjustifiable interference in the
\n           administration of justice.        It is
\n           a matter between the court and the<\/p>\n
           contemnor and third parties cannot
\n           intervene.    It is exercised in a
\n           summary manner in aid of the
\n           administration    of    justice,    the
\n           majesty of law and the dignity of
\n           the courts.     No such act can be<\/p>\n
           permitted    which    may   have    the
\n           tendency   to    shake    the    public
\n           confidence in the fairness and
\n           impartiality of the administration
\n           of justice.”\n<\/p><\/blockquote>\n
     29. Therefore, if the majesty of the law is to<\/p>\n
                                  ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                         41<\/span>
\n                                                                        cp464.10<\/p>\n
     be upheld and if the confidence of the common<\/p>\n
     people in the judiciary is to be maintained,<\/p>\n
     in that case, the person who gives undertaking<\/p>\n
     before this Court and subsequently does not<\/p>\n
     follow the said undertaking even after one and<\/p>\n
     half    year        from     giving           such       undertaking,<\/p>\n
     deserves to be punished.                 Not only this but in<\/p>\n
     present Contempt Petition the respondent has<\/p>\n
     filed affidavit on 15.06.2011 thereby stating<\/p>\n
     on oath that, he will submit unpaid salary<\/p>\n
     bills     of    the       petitioner          to     the     Education<\/p>\n
     Officer within three days and he will take<\/p>\n
     steps to get the said amount disbursed by the<\/p>\n
     respondent no.4 on or before 24.06.2011 and in<\/p>\n
     case,     the       amount    is        not    disbursed           before<\/p>\n
     24.06.2011, he will deposit the said amount<\/p>\n
     within one week from 24.06.2011 in this Court.\n<\/p>\n
     30. In the present contempt proceedings, this<\/p>\n
     Court is mainly concerned with maintaining the<\/p>\n
     majesty        of    law     and    public           confidence           in<\/p>\n
     judiciary.           If    the     act    of       the     respondent\/<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                     42<\/span>
\n                                                                    cp464.10<\/p>\n
     alleged contemnor to file undertaking and then<\/p>\n
     to breach it and further to file affidavits<\/p>\n
     before this Court, thereby giving assurance to<\/p>\n
     disburse    the    unpaid      salary       within       one      week<\/p>\n
     from 24.06.2011, to the petitioner, and not<\/p>\n
     complying with the said statement on oath till<\/p>\n
     date, if tolerated and allowed to continue,<\/p>\n
     certainlyig   the      public        confidence<\/p>\n
     judicial institution will be shaken and the
\n                                                                in       the<\/p>\n
     litigants will tempt to violate\/ breach the<\/p>\n
     orders\/ undertaking given before the Court.\n<\/p>\n
     31. In the present case, there is breach of<\/p>\n
     undertaking       given   by    the        respondent-alleged<\/p>\n
     contemnor     through          his     Counsel           on       12th<\/p>\n
     November, 2009 in Writ Petition No. 2177\/2009.\n<\/p>\n
     The   alleged      contemnor         did    not      pay       unpaid<\/p>\n
     amount of salary or disbursed the same within<\/p>\n
     six   weeks       to   the      petitioner            from        12th<\/p>\n
     November, 2009. Secondly, the assurance given<\/p>\n
     that the Management will continue to pay the<\/p>\n
     respondent no.4 i.e. the present petitioner<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                    43<\/span>
\n                                                                 cp464.10<\/p>\n
     the salary admissible to the post of assistant<\/p>\n
     teacher is also not complied with. Admittedly,<\/p>\n
     as on today, the undertaking given to this<\/p>\n
     Court on 12th November, 2009 in Writ Petition<\/p>\n
     no. 2177\/2009 as reflected in para no.3 of the<\/p>\n
     said order, has not been complied with by the<\/p>\n
     respondent\/alleged contemnor.\n<\/p>\n
     32. Secondly, the undertaking given to this<\/p>\n
     Court by way of affidavit on 15th June, 2011<\/p>\n
     has not been complied with by the allegedly<\/p>\n
     contemnor\/          respondent.           Thirdly,               the<\/p>\n
     respondent\/alleged         contemnor,      after        issuance<\/p>\n
     of non-bailable warrant on 11th August, 2011<\/p>\n
     absconded     and    did     not   make     available            for<\/p>\n
     himself and ran away from the process of law<\/p>\n
     and     ultimately,         did     not        subject             to<\/p>\n
     jurisdiction    of     this    Court     for     the      various<\/p>\n
     dates   fixed   for    hearing     from      11.07.2011            to<\/p>\n
     06.09.2011.     This       Court   was    constrained              to<\/p>\n
     direct the Superintendent of Police, Parbhani<\/p>\n
     to continue search of the respondent\/alleged<\/p>\n
                                        ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                          44<\/span>
\n                                                                            cp464.10<\/p>\n
     contemnor and produce him before this Court.\n<\/p>\n
     Therefore,      this     Court           is    of     the      considered<\/p>\n
     view that, this is a case of clear breach and<\/p>\n
     willful disobedience of undertakings given to<\/p>\n
     this Court and further violation of the orders<\/p>\n
     passed by this Court on the basis of such<\/p>\n
     undertakings given by the respondent\/ alleged<\/p>\n
     contemnor before this Court. The situation is<\/p>\n
     aggravated         by         the        respondent\/                 alleged<\/p>\n
     contemnor       himself         by        not        making          himself<\/p>\n
     available for various dates fixed for hearing<\/p>\n
     of the Writ Petition. The respondent has shown<\/p>\n
     total disrespect and disregard to the judicial<\/p>\n
     process and also to the process of law.\n<\/p>\n
     33. The respondent\/alleged contemnor had tried<\/p>\n
     to   protract       and        prolong            hearing           of      the<\/p>\n
     contempt     petition          by        not      making         available<\/p>\n
     himself     when        the    Petition              was       fixed        for<\/p>\n
     hearing. He has not obeyed the orders passed<\/p>\n
     by this Court, rather                    tried to prolong the<\/p>\n
     hearing    of    the     Contempt             Petition.          The      said<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                   45<\/span>
\n                                                                     cp464.10<\/p>\n
     conduct of the alleged contemnor\/ respondent<\/p>\n
     can not be countenanced and same deserves to<\/p>\n
     be dealt with rigorously.\n<\/p>\n
     34. However,      the   case      in      hand       falls        under<\/p>\n
     Civil Contempt as defined under Section 2(b)<\/p>\n
     of the Contempt of Courts Act, which reads<\/p>\n
     thus :\n<\/p>\n
                 Section 2(b) : “civil contempt” means
\n                 wilful disobedience to any judgment,
\n                 decree, direction, order, writ or
\n                 other process of a Court or wilful<\/p>\n
                 breach of an undertaking given to a
\n                 Court;\n<\/p><\/blockquote>\n
     35. The      reading    of     Section           2(b)        of      the<\/p>\n
     Contempt of Courts Act, 1971 makes it clear<\/p>\n
     that civil contempt means wilful disobedience<\/p>\n
     to    any   judgment,   decree,          direction,             order,<\/p>\n
     writ or other process of a Court or wilful<\/p>\n
     breach of an undertaking given to a Court. The<\/p>\n
     wilful disobedience has not been defined in<\/p>\n
     the    Contempt    of   Courts          Act.        The       Hon’ble<\/p>\n
     Supreme Court in the case of “All India Anna<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                     46<\/span>
\n                                                                       cp464.10<\/p>\n
     Dravida Munnetra Kazhagam V\/s L.K. Tripathi”\n<\/p>\n
     reported in ” (2009) 5 S.C.C. 417″                          from para<\/p>\n
     53 to 64 had discussed about what is mean by<\/p>\n
     `wilful      disobedience.’         The       Hon’ble           Supreme<\/p>\n
     Court     has       referred        to       various            earlier<\/p>\n
     judgments and dictionary meaning and explained<\/p>\n
     about the wilful disobedience. The paragraph<\/p>\n
     nos.    53 ig to    64<\/p>\n
     reproduced herein below :\n<\/p>\n
                              of    the        said        judgment           is\n              \n                  \"53.    We   have    considered    the\n                  submissions\/arguments    of    learned\n      \n\n<\/pre>\n
                  counsel for the parties. Section 2(b)
\n                  and (c) of the 1971 Act which define<\/p>\n
                  civil and criminal contempt read as
\n                  under:\n<\/p>\n
                  “2(b) `civil contempt’ means wilful
\n                  disobedience to any judgment, decree,<\/p>\n
                  direction, order,    writ   or  other
\n                  process of a court or wilful breach
\n                  of an undertaking given to a court;\n<\/p>\n
                  (c) `criminal contempt’ means the
\n                  publication (whether by words, spoken<\/p>\n
                  or written, or by signs, or by
\n                  visible      representations,      or
\n                  otherwise) of any matter or the doing
\n                  of any other act whatsoever which-\n<\/p>\n
                  (i)    scandalises  or   tends   to
\n                  scandalise, or lowers or tends to
\n                  lower the authority of, any court ;
\n                  or\n<\/p>\n
                  (ii)    prejudices,           or     interferes             or<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                     47<\/span>
\n                                                  cp464.10<\/p>\n
       tends to interfere with, the due<\/p>\n
       course of any judicial proceeding; or\n<\/p>\n
       (iii)   interferes    or   tends   to<\/p>\n
       interfere with, or obstructs or tends
\n       to obstruct, the administration of
\n       justice in any other manner,”\n<\/p>\n
       54. An analysis of Section 2(b) of
\n       the 1971 Act shows that willful
\n       disobedience to any judgment, decree,
\n       direction, order,    writ   or   other<\/p>\n
       process of a court or willful breach
\n       of an undertaking given to a court<\/p>\n
       constitutes civil contempt. If this
\n       definition is read with Article 129
\n       of the Constitution of India, it<\/p>\n
       becomes clear that being a Court of
\n       record, this Court can punish a
\n       person for civil contempt if it is
\n       found that he has willfully disobeyed
\n       any   judgment   etc.   or    violated<\/p>\n
       undertaking given to the Court.\n<\/p>\n
       55. The term `wilful’ (willfull) has
\n       not been defined in the 1971 Act.
\n       Therefore, it will be useful to<\/p>\n
       notice dictionary meaning of the said
\n       term.   As   per    The   New   Oxford
\n       Illustrated      Dictionary      (1980
\n       Edition),the   term   “wilful”   means
\n       “asserting or disposed to assert
\n       one’s own will against instruction,<\/p>\n
       persuasion, etc.; obstinately self-
\n       willed;    deliberate,    intentional,
\n       showing perversity or self-will”.\n<\/p>\n
       56. According     to  Black’s   Law
\n       Dictionary, (8th Edition)- “Wilful”
\n       means “[v]oluntary and intentional,
\n       but not necessarily malicious” and
\n       “wilfulness” means<\/p>\n
                         ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                     48<\/span>
\n                                                  cp464.10<\/p>\n
            “1. The fact or quality of<\/p>\n
       acting   purposely   or  by   design;
\n       deliberateness;intention; willfulness<\/p>\n
       does not necessarily imply malice,
\n       but it involves more than just
\n       knowledge.\n<\/p>\n
            2.  The voluntary, intentional<\/p>\n
       violation or disregard of a known
\n       legal duty.”\n<\/p>\n
       57.     As  per    Stroud’s   Judicial<\/p>\n
       Dictionary,   Vol.5   (4th   Edition),
\n       “wilful disobedience” means;
\n        ig  “(1) The willful disobedience of
\n       a SEAMAN or apprentice is `wilfully
\n       disobeying any lawful command DURING<\/p>\n
       engagement’: `There may be many cases
\n       in   which   DESERTION,   or  ABSENCE
\n       without leave, would not amount to
\n       willful disobedience, and in these
\n       cases the seaman would only be liable<\/p>\n
       to   the    lesser   penalty.  Where,
\n       however, the seaman deserts or is<\/p>\n
       intentionally absent without leave
\n       after the time at which he has been
\n       lawfully ordered to be on board, his
\n       desertion or absence may amount to<\/p>\n
       “wilful       disobedience,”     and,
\n       consequently, that he would be liable
\n       to imprisonment. The words “during
\n       the engagement” seem to suggest that
\n       the contract between the employer and<\/p>\n
       the employed should be taken into
\n       account, and that if, having regard
\n       to that contract, the order was one
\n       which the employed was bound to obey,
\n       his disobedience might be dealt with
\n       under clause (d)’;”\n<\/p>\n
       58.    In   Shorter Oxford  English
\n       Dictionary, the term “willful” has<\/p>\n
                         ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                     49<\/span>
\n                                                   cp464.10<\/p>\n
       been defined as:\n<\/p>\n
            “1. Asserting or disposed to
\n       assert    one’s  own   will  against<\/p>\n
       persuasion, instruction, or command;
\n       governed by will without regard to
\n       reason; obstinately self-willed or
\n       perverse.\n<\/p>\n
            2. Willing; consenting; ready to
\n       comply with a request, desire, or
\n       requirement – 1598.\n<\/p>\n
            3. proceeding from the will;\n<\/p>\n
       done or suffered of one’s own free
\n       will or choice; voluntary – 1687.
\n        ig  4. Done on purpose or wittingly;
\n       purposed,   deliberate,  intentional.
\n       (Chiefly, now always, in bad sense of<\/p>\n
       a blameworthy action; freq. implying
\n       `perverse, obstinate’.)”\n<\/p>\n
       59. In Ashok Paper Kamgar Union v.\n<\/p>\n
       Dharam Godha and others [(2003) 11
\n       SCC 1], this Court was called upon to<\/p>\n
       decide whether the respondents i.e.
\n       Shri Dharam Godha, Chairman, Nouveau
\n       Capital & Finance Ltd.; Shri S.
\n       Jagadeesan, Joint Secretary, Ministry<\/p>\n
       of Industry, Department of Industrial
\n       Policy and Promotion, Government of
\n       India; Shri G.S. Kang, Secretary,
\n       Department of Industries, Government
\n       of Bihar; Shri S.N. Khan, Chairman<\/p>\n
       and Managing Director and Shri R.P.
\n       Chabra,   Chief    General    Manager,
\n       Rehabilitation   Finance   Department,
\n       Industrial Development Bank of India
\n       were guilty of contempt.\n<\/p>\n
       60. The facts of Dharam Godha case
\n       were that by an order dated 8.7.1996,
\n       this Court approved the proposal made<\/p>\n
                          ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                     50<\/span>
\n                                                  cp464.10<\/p>\n
       by the Government of India for take<\/p>\n
       over of M\/s. Ashok Paper Mills by
\n       M\/s. Nouveau Capital and Finance Ltd.\n<\/p>\n
       and disposed of the writ petition
\n       filed by Ashok Paper Kamgar Union.
\n       Later on, by an order dated 1.5.1997,
\n       all   concerned   were    directed  to
\n       participate in implementation of the<\/p>\n
       scheme and the Finance Secretary,
\n       Ministry of Finance, Government of
\n       India was directed to ensure that the
\n       legal requirements are fulfilled and<\/p>\n
       the mill is rehabilitated and both
\n       Phases I and II of the Scheme are<\/p>\n
       given effect to. Two more orders were
\n       passed by the court in the matter on
\n       31.7.2000     and     1.9.2000.    The
\n       petitioner     alleged     that    the<\/p>\n
       respondents have failed to comply
\n       with the directions given by the
\n       Court   for   implementation of    the
\n       Scheme   and,   therefore, they    are<\/p>\n
       liable for contempt of court.\n<\/p>\n
       61.      This court in Dharam Godha
\n       took cognizance of the fact that M\/s.
\n       Nouveau Capital & Finance Ltd., had
\n       failed to pay the consideration of<\/p>\n
       Rs.6 crores; that IDBI had disbursed
\n       term loan of Rs.15 crores towards
\n       Phase I of revival Scheme; that the
\n       Department of Industrial Policy and
\n       Promotion, Ministry of Commerce and<\/p>\n
       Industry, Government of India in
\n       cooperation with the Department of
\n       Banking    obtained   sanction    for
\n       additional term loan of Rs.11 crores
\n       from IDBI and a working capital of
\n       Rs.9.25 crores from United Bank of
\n       India; that NCFL had invested Rs.20
\n       crores towards promotion contribution
\n       which was much more than amount
\n       contemplated in Phase I of the Scheme<\/p>\n
                         ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                     51<\/span>
\n                                                  cp464.10<\/p>\n
       and held that respondents cannot be<\/p>\n
       held guilty of contempt.\n<\/p>\n
       62. Para 17 of the judgment which
\n       contains discussion on the subject
\n       reads as under: (Dharam Godha case,
\n       SCC pp.14-15)<\/p>\n
                “17. Section 2(b) of the
\n           Contempt of Courts Act defines
\n           `civil contempt’; and it means<\/p>\n
           wilful    disobedience     to   any
\n        ig judgment,    decree,     direction,
\n           order, writ or other process of
\n           a court or wilful breach of
\n           undertaking given to a court.\n<\/p>\n
           `Wilful'    means    an    act   or\n           omission     which      is     done\n           voluntarily    and    intentionally\n<\/pre>\n
           and with the specific intent to
\n           do something the law forbids or<\/p>\n
           with the specific intent to fail
\n           to do something the law requires<\/p>\n
           to be done, that is to say, with
\n           bad purpose either to disobey or
\n           to    disregard    the    law.   It
\n           signifies a deliberate action<\/p>\n
           done with evil intent or with a
\n           bad     motive      or     purpose.\n<\/p>\n
           Therefore,      in     order     to
\n           constitute contempt the order of
\n           the court must be of such a<\/p>\n
           nature   which    is   capable   of
\n           execution by the person charged
\n           in   normal    circumstances.    It
\n           should     not      require     any
\n           extraordinary effort nor should
\n           be dependent, either wholly or
\n           in   part,   upon    any   act   or
\n           omission of a third party for
\n           its compliance. This has to be
\n           judged having regard to the<\/p>\n
                         ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                     52<\/span>
\n                                                  cp464.10<\/p>\n
           facts and circumstances of each<\/p>\n
           case. The facts mentioned above
\n           show    that     none     of    the<\/p>\n
           respondents to the petition can
\n           be    held    to    be     directly
\n           responsible if the Scheme which
\n           had   been   formulated    by   the
\n           Government of India on 28-6-1996<\/p>\n
           and had been approved by this
\n           Court    by   the    order    dated
\n           8-7-1996      could      not     be
\n           implemented in letter and spirit<\/p>\n
           as many factors have contributed
\n           to the same. The reasons given
\n        ig for    non-inclusion     of
\n           Umadhar Prasad Singh in signing
\n           of the agreement appear to be
\n                                          Shri<\/p>\n
           quite    plausible.     NCFL    has<\/p>\n
           undoubtedly not discharged its
\n           liability of making payment of
\n           its entire liability of Rs.6
\n           crores. However, it has come out<\/p>\n
           with a case that some additional
\n           expenditure has been incurred in<\/p>\n
           running the unit. It is not
\n           possible to get the complete
\n           financial picture only on the
\n           basis of the affidavits filed in<\/p>\n
           the present petition. On the
\n           material on record, therefore,
\n           it is not possible to hold that
\n           the charge of having committed
\n           contempt of court on account of
\n           alleged non- compliance with the<\/p>\n
           orders passed by this Court on
\n           8-7-1996, 1-5-1997 and 31-7-2000
\n           has been established against any
\n           one of the respondents.”\n<\/p>\n
                          (emphasis added).\n<\/p>\n
       63. In DDA v. Skipper Construction
\n       [(1995) 3 SCC 507], this Court<\/p>\n
                         ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                     53<\/span>
\n                                                  cp464.10<\/p>\n
       highlighted the distinction between<\/p>\n
       the civil and criminal contempt in
\n       the following words:- (SCC p-517,<\/p>\n
       paras 43-44)<\/p>\n
           “43. Civil contempt is defined
\n           under Section 2(b) of the Act.\n<\/p>\n
           Thus, any wilful disobedience to
\n           the order of the court to do or
\n           abstain from doing any act is
\n           prima facie a civil contempt.\n<\/p>\n
           Civil contempt arises where the
\n           power of the court is invoked
\n        ig and    exercised    to   enforce
\n           obedience   to   orders of   the
\n           court.\n<\/p>\n
           44. On the contrary, criminal
\n           contempts    are    criminal   in
\n           nature. It may include outrages
\n           on the Judges in open court,
\n           defiant   disobedience    to  the<\/p>\n
           Judges   in   court,   libels  on
\n           Judges or courts or interfering<\/p>\n
           with the courts of justice or
\n           any act which tends to prejudice
\n           the courts of justice.”\n<\/p>\n
       64   In  Kapildeo   Prasad   Sah   and
\n       others v. State of Bihar and others
\n       [(1999)   7  SCC   569],   the   Court
\n       outlined the object of its contempt
\n       jurisdiction in the following words:\n<\/p>\n
       (SCC pp-573-74, paras 9 & 11)<\/p>\n
           “9. For holding the respondents
\n           to   have    committed contempt,
\n           civil contempt at that, it has
\n           to be shown that there has been
\n           wilful    disobedience  of   the
\n           judgment or order of the court.
\n           Power to punish for contempt is<\/p>\n
                         ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                    54<\/span>
\n                                                 cp464.10<\/p>\n
           to be resorted to when there is<\/p>\n
           clear violation of the court’s
\n           order. Since notice of contempt<\/p>\n
           and punishment for contempt is
\n           of    far-reaching    consequence,
\n           these powers should be invoked
\n           only when a clear case of wilful
\n           disobedience    of   the   court’s<\/p>\n
           order has been made out. Whether
\n           disobedience is wilful in a
\n           particular case depends on the
\n           facts and circumstances of that<\/p>\n
           case. Judicial orders are to be
\n           properly understood and complied
\n        ig with.    Even
\n           carelessness
\n                            negligence
\n                           can    amount
\n           disobedience particularly when
\n                                          and
\n                                           to<\/p>\n
           the attention of the person is<\/p>\n
           drawn to the court’s orders and
\n           its implications. Disobedience
\n           of the court’s order strikes at
\n           the very root of the rule of law<\/p>\n
           on    which    our    system    of
\n           governance is based. Power to<\/p>\n
           punish for contempt is necessary
\n           for the maintenance of effective
\n           legal system. It is exercised to
\n           prevent perversion of the course<\/p>\n
           of justice.\n<\/p>\n
           11. No person can defy the
\n           court’s   order.  Wilful   would
\n           exclude casual, accidental, bona<\/p>\n
           fide or unintentional acts or
\n           genuine inability to comply with
\n           the terms of the order. A
\n           petitioner who complains breach
\n           of the court’s order must allege
\n           deliberate    or    contumacious
\n           disobedience   of  the   court’s
\n           order.”\n<\/p>\n
                        ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                                    55<\/span><\/p>\n
                                                                    cp464.10<\/p>\n
     36. The Supreme Court in the case of “Rama<\/p>\n
     Narang    (5)    V\/s   Ramesh      Narang        and       another”\n<\/p>\n
     reported    in    “(2009)     16    S.C.C.         126”,         after<\/p>\n
     critical analysis of the decided cases of the<\/p>\n
     Supreme Court held that, the wilful breach of<\/p>\n
     an undertaking given to the court amounts to<\/p>\n
     contempt of court under Section 2(b) of the<\/p>\n
     Contempt of Courts Act, 1971. The dictionary<\/p>\n
     meaning of the word undertaking and order, the<\/p>\n
     earlier    judgments     of     the     Supreme          Court        on<\/p>\n
     subject are discussed from para no. 35 to 47<\/p>\n
     of the said judgment. The paragraph nos. 35 to<\/p>\n
     47 of the said judgment are reproduced herein<\/p>\n
     below :\n<\/p>\n
                “35.     Black’s Law Dictionary, 5th
\n                Edn. defines “undertaking” in the
\n                following words:\n<\/p><\/blockquote>\n
                       “A   Promise,   engagement,    or
\n                       stipulation. An engagement by
\n                       one of the parties to a contract
\n                       to the other, as distinguished
\n                       from the mutual engagement of
\n                       the parties to each other. It
\n                       does not necessarily imply a
\n                       consideration. In a      somewhat
\n                       special sense, a promise given
\n                       in    the   course    of    legal<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:43:55 :::<\/span>
\n                    56<\/span>
\n                                                 cp464.10<\/p>\n
           proceedings by a party or his<\/p>\n
           counsel,    generally     as    a
\n           condition   to   obtaining   some<\/p>\n
           concession from the Court or the
\n           opposite party. A promise or
\n           security in any form.”\n<\/p><\/blockquote>\n<\/blockquote>\n
       36. Osborn’s Concise Law Dictionary,
\n       10th Edn. defines “undertaking” in
\n       the following words:\n<\/p><\/blockquote>\n
           “A promise, especially a promise<\/p>\n
           in    the    course   of    legal
\n        ig proceedings by a party or his
\n           counsel, which may be enforced
\n           by attachment or otherwise in
\n           the    same    manner    as    an<\/p>\n
           injunction.”\n<\/p><\/blockquote>\n
       37. In M. v. Home Office (1992) 4
\n       All ER 97 at p.132g, the expression<\/p>\n
       “undertaking” has been dealt with in
\n       the following manner:\n<\/p>\n
           “[I]f a party, or solicitors or
\n           counsel on his behalf, so act as
\n           to convey to the court the firm
\n           conviction that an undertaking<\/p>\n
           is being given, that party will
\n           be bound and it will be no
\n           answer that he did not think
\n           that he was giving it or that he
\n           was misunderstood.”\n<\/p><\/blockquote>\n
       38. In re Hudson [1966] Ch. 209 the
\n       English Court observed as under:(All
\n       ER pp.112 I-113 A)<\/p>\n
           “An undertaking to the court
\n           confers no personal right or
\n           remedy on any other party. The<\/p>\n
                        ::: Downloaded on – 09\/06\/2013 17:43:56 :::<\/span>
\n                     57<\/span>
\n                                                  cp464.10<\/p>\n
           only sanctions for breach are<\/p>\n
           imprisonment    for     contempt,
\n           sequestration or a fine.”\n<\/p>\n
       39. Similarly,   in   Shoreham-by-Sea
\n       U.D.C. v. Dolphin Canadian Proteins
\n       Ltd., (1972) 71 L.G.R. 261, the Court<\/p>\n
       observed as under:\n<\/p>\n
           “Failure   to   comply with  an
\n           undertaking to abate a nuisance<\/p>\n
           may    be     visited  with   a
\n        ig substantial fine.”\n<\/p><\/blockquote>\n
       40. The Division Bench of the Bombay<\/p>\n
       High Court in Bajranglal Gangadhar
\n       Khemka v. Kapurchand Ltd.<\/a> reported in
\n       AIR 1950 Bombay 336 had an occasion
\n       to deal with similar facts. Chagla,
\n       C.J.,   speaking   for   the   Court,<\/p>\n
       observed as under: (AIR p.337, para\n<\/p>\n
       4)<\/p>\n
           “4. We are not prepared to
\n           accept a position which seems to
\n           us contrary to the long practice
\n           that has been established in<\/p>\n
           this Court, and, apparently,
\n           also in England. There is no
\n           reason why even in a consent
\n           decree a party may not give an
\n           undertaking   to    the   Court.\n<\/p>\n
           Although the Court may be bound
\n           to record a compromise, still,
\n           when the Court passes a decree,
\n           it puts its imprimatur upon
\n           those terms and makes the terms
\n           a rule of the Court; and it
\n           would be open to the Court,
\n           before it did so, to accept an
\n           undertaking given by a party to
\n           the Court. Therefore, there is<\/p>\n
                         ::: Downloaded on – 09\/06\/2013 17:43:56 :::<\/span>
\n                     58<\/span>
\n                                                  cp464.10<\/p>\n
           nothing    contrary    to     any<\/p>\n
           provision of the law whereby an
\n           undertaking cannot be given by a<\/p>\n
           party to the Court in the
\n           consent       decree,       which
\n           undertaking can be enforced by
\n           proper committal proceedings.”\n<\/p>\n
       41. In Noorali Babul Thanewala v.
\n       K.M.M. Shetty<\/a> reported in (1990) 1
\n       SCC 259, a tenant committed breach of<\/p>\n
       undertaking given by him to the
\n       Supreme   Court  to   deliver  vacant
\n       possession of certain premises. The<\/p>\n
       Supreme Court held the tenant guilty
\n       of contempt. Hon’ble V. Ramaswami,
\n       J., delivering the judgment observed:\n<\/p>\n
       (SCC pp-265-66 para 11)
\n           “11. When a court accepts an
\n           undertaking given by one of the
\n           parties and passes orders based<\/p>\n
           on such undertaking, the order
\n           amounts   in   substance  to   an<\/p>\n
           injunction    restraining    that
\n           party from acting in breach
\n           thereof.   The    breach  of   an
\n           undertaking given to the Court<\/p>\n
           by or on behalf of a party to a
\n           civil proceedings is, therefore,
\n           regarded as tantamount to a
\n           breach of injunction although
\n           the remedies were not always
\n           identical. For the purpose of<\/p>\n
           enforcing an undertaking that
\n           undertaking is treated as an
\n           order so that an undertaking, if
\n           broken, would involve the same
\n           consequences    on   the  persons
\n           breaking that undertaking as
\n           would their disobedience to an
\n           order for an injunction. It is
\n           settled law that breach of an<\/p>\n
                         ::: Downloaded on – 09\/06\/2013 17:43:56 :::<\/span>
\n                     59<\/span>
\n                                                  cp464.10<\/p>\n
           injunction   or  breach  of   an<\/p>\n
           undertaking given to a court by
\n           a person in a civil proceeding<\/p>\n
           on the faith of which the court
\n           sanctions a particular course of
\n           action is misconduct amounting
\n           to contempt.”\n<\/p>\n
       42. In Mohd. Aslam v. Union of India<\/a>
\n       reported in (1994) 6 SCC 442, this
\n       Court   dealt    with   the    contempt<\/p>\n
       proceedings raising the issues as to
\n       the amenability of the State and of
\n       its
\n        ig   Ministers    for    failure    of
\n       obedience     to      the      judicial
\n       pronouncements. In this case, the
\n       Chief Minister of Uttar Pradesh had<\/p>\n
       made a statement before National
\n       Integration    Council      that    the
\n       Government of Uttar Pradesh will hold
\n       itself fully responsible for the<\/p>\n
       protection of the Ram Janma Bhumi-
\n       Babri Masjid structures. Upon this<\/p>\n
       statement of the Chief Minister, this
\n       Court had passed an order. However,
\n       in the contempt proceedings it was
\n       alleged that the orders passed on the
\n       basis of the statements made have<\/p>\n
       been   deliberately     and    wilfully
\n       flouted and disobeyed by the State of
\n       Uttar Pradesh. While dealing with the
\n       expression “undertaking”, this Court
\n       observed as under: (SCC p-453, para<\/p>\n
       22)
\n           “The Chief Minister having given
\n           a   solemn   assurance  to   the
\n           National Integration Council and
\n           permitted the terms of that
\n           assurance to be incorporated as
\n           his own undertaking to this
\n           court and allowed an order to be
\n           passed in those terms cannot<\/p>\n
                         ::: Downloaded on – 09\/06\/2013 17:43:56 :::<\/span>
\n                     60<\/span>
\n                                                  cp464.10<\/p>\n
           absolve     himself    of    the<\/p>\n
           responsibility unless he placed
\n           before   the   Court  sufficient<\/p>\n
           material which would justify
\n           that he had taken all reasonable
\n           steps and precautions to prevent
\n           the occurrence.”\n<\/p>\n
       43. In Rita Markandey v. Surjit
\n       Singh Arora<\/a> reported in (1996) 6 SCC
\n       14, this Court came to the conclusion<\/p>\n
       that even if the parties have not
\n       filed   an   undertaking  before   the
\n       Court, but if the Court is induced to<\/p>\n
       sanction   a   particular course of
\n       action or inaction on the basis of
\n       the representation of such a party<\/p>\n
       and the court ultimately finds that
\n       the party never intended to act on
\n       such     representation    or     such
\n       representation was false, even then<\/p>\n
       the   party    would  be   guilty   of
\n       committing contempt of court. The<\/p>\n
       Court observed as under: (SCC p-20,
\n       para 12).\n<\/p>\n
           “12. Law is well settled that if<\/p>\n
           any party gives an undertaking
\n           to the Court to vacate the
\n           premises from which he is liable
\n           to be evicted under the orders
\n           of the Court and there is a<\/p>\n
           clear   and    deliberate   breach
\n           thereof it amounts to civil
\n           contempt   but    since,  in   the
\n           present case, the respondent did
\n           not file any undertaking as
\n           envisaged in the order of this
\n           Court the question of his being
\n           punished for breach thereof does
\n           not   arise.    However,  in   our
\n           considered view even in a case<\/p>\n
                         ::: Downloaded on – 09\/06\/2013 17:43:56 :::<\/span>
\n                     61<\/span>
\n                                                  cp464.10<\/p>\n
           where no such undertaking is<\/p>\n
           given, a party to a litigation
\n           may be held liable for such<\/p>\n
           contempt if the Court is induced
\n           to sanction a particular course
\n           of action or inaction on the
\n           basis of the representation of
\n           such a party and the Court<\/p>\n
           ultimately finds that the party
\n           never intended to act on such
\n           representation      or      such
\n           representation was false.”\n<\/p><\/blockquote>\n
       44. In
\n        ig      K.C.G.   Verghese  v.   K.T.\n<\/p>\n
       Rajendran reported in (2003) 2 SCC
\n       492, this Court dealt with the
\n       “undertaking” in contempt proceedings<\/p>\n
       arising out of eviction proceedings.
\n       This Court held that when at the time
\n       of giving the undertaking, the tenant
\n       did not indicate that he was in<\/p>\n
       possession of a part of the premises
\n       and not the other portion nor was<\/p>\n
       such a stand taken in any of the
\n       pleadings before the High Court or
\n       rent   controller,   the   order   of
\n       eviction passed against the tenant is
\n       equally binding upon the occupant of<\/p>\n
       the other portion.\n<\/p>\n
       45. This Court again had occasion to
\n       deal with a case in Bank of Baroda v.\n<\/p>\n
       Sadruddin Hasan Daya reported in
\n       (2004) 1 SCC 360. In that case, the
\n       Court clearly observed as under:(SCC
\n       p-361g).\n<\/p>\n
           “The    wilful   breach   of   an
\n           undertaking given to a court
\n           amounts    to  `civil   contempt’
\n           within the meaning of Section<\/p>\n
                         ::: Downloaded on – 09\/06\/2013 17:43:56 :::<\/span>
\n                     62<\/span>
\n                                                  cp464.10<\/p>\n
           2(b) of the Contempt of Courts<\/p>\n
           Act.   The   respondents   having
\n           committed    breach     of    the<\/p>\n
           undertaking given to the Supreme
\n           Court in the consent terms they
\n           are clearly liable for having
\n           committed contempt of court.”\n<\/p>\n
       46. The respondents placed reliance
\n       on Babu Ram Gupta v. Sudhir Bhasin<\/a>
\n       reported in (1980) 3 SCC 47. In this<\/p>\n
       case   admittedly   no   application,
\n       affidavit or any undertaking were
\n       given by the appellant. Therefore,<\/p>\n
       this case is of no assistance to the
\n       respondents. In this case, the Court
\n       observed that:(SCC p-53, para 10).\n<\/p>\n
            “[E]ven the consent order does
\n           not incorporate expressly or
\n           clearly      that      any      such
\n           undertaking    had    been     given<\/p>\n
           either by the appellant or by
\n           his lawyer before the Court that<\/p>\n
           he would handover possession of
\n           the property to the receiver. In
\n           the   absence   of    any    express
\n           undertaking     given      by    the<\/p>\n
           appellant or      any undertaking
\n           incorporated     in     the    order
\n           impugned, it will be difficult
\n           to   hold   that    the    appellant
\n           wilfully disobeyed or committed
\n           breach of such an undertaking”.\n<\/p><\/blockquote>\n
       The Court even in this case observed
\n       that: (SCC p-53, para 10)<\/p>\n
           “In fact, the reason why a
\n           breach   of clear  undertaking
\n           given to the court amounts to
\n           contempt of court is that the<\/p>\n
                         ::: Downloaded on – 09\/06\/2013 17:43:56 :::<\/span>
\n                               63<\/span>
\n                                                               cp464.10<\/p>\n
                    contemnor by making a false<\/p>\n
                    representation   to   the    court
\n                    obtains a benefit for himself<\/p>\n
                    and if he fails to honour the
\n                    undertaking, he plays a serious
\n                    fraud on the court itself and
\n                    thereby obstructs the course of
\n                    justice    and     brings     into<\/p>\n
                    disrepute      the        judicial
\n                    institution.”    (emphasis      in
\n                    original).\n<\/p>\n
                47. The critical analysis of the
\n                decided cases of this Court clearly<\/p>\n
                leads to the conclusion that wilful
\n                breach of an undertaking given to the
\n                Court amounts to contempt of court<\/p>\n
                under Section 2(b) of the Act.”\n<\/p>\n
     37. Therefore,    viewed      from      any       angle        the<\/p>\n
     respondent\/    alleged     contemnor           inspite           of<\/p>\n
     undertaking   given   to      this      Court        on      12th<\/p>\n
     November, 2009 in Writ Petition no. 2177\/2009<\/p>\n
     and also inspite of directions in para no.3 of<\/p>\n
     the order of this Court in said Writ Petition,<\/p>\n
     and also inspite of the undertaking given by<\/p>\n
     way of filing Affidavit on oath on 15th June,<\/p>\n
     2011 has not disbursed\/ paid the unpaid salary<\/p>\n
     of   the   petitioner.     The        Management             i.e.<\/p>\n
     respondent no.2, did not continue to pay the<\/p>\n
                                      ::: Downloaded on – 09\/06\/2013 17:43:56 :::<\/span>
\n                                    64<\/span>
\n                                                                   cp464.10<\/p>\n
     regular      salary      to   the       petitioner           as      an<\/p>\n
     Assistant      Teacher        in        spite       of        solemn<\/p>\n
     undertaking given to          this Court. Therefore,<\/p>\n
     the    alleged          contemnor\/        respondent               has<\/p>\n
     committed breach of undertakings given to this<\/p>\n
     Court and wilfully disobeyed the orders passed<\/p>\n
     by this Court on 12th November, 2009 in Writ<\/p>\n
     2011    in<\/p>\n
     Petition no. 2177\/2009 and also on 15th June,<\/p>\n
                    the      present      Contempt            Petition,<\/p>\n
     therefore, the respondent\/ alleged contemnor-\n<\/p>\n
     Mohd. Osman S\/o Mohd. Ismail is liable to be<\/p>\n
     punished under the provisions of the Contempt<\/p>\n
     of Courts Act, 1971 and Article 215 of the<\/p>\n
     Constitution       of    India.     His    conduct          in     not<\/p>\n
     making himself available for the process of<\/p>\n
     law    and    jurisdiction         of     this       Court         and<\/p>\n
     absconding, makes him further unworthy, and<\/p>\n
     leads to such situation that, he can not be<\/p>\n
     shown leniency.\n<\/p>\n
     38. Though, it is vehemently argued by the<\/p>\n
     counsel      for        the   respondent            that,          the<\/p>\n
                                          ::: Downloaded on – 09\/06\/2013 17:43:56 :::<\/span>
\n                                       65<\/span>
\n                                                                       cp464.10<\/p>\n
     respondent has tendered unconditional apology<\/p>\n
     in    the   affidavit       in        reply    filed         in     this<\/p>\n
     contempt      proceedings         and      also        had        orally<\/p>\n
     tendered      the   unconditional             apology,         in     the<\/p>\n
     facts of this case, it is not possible to<\/p>\n
     accept such apology.\n<\/p>\n
     Jaikwal<\/p>\n
     39. The Supreme Court in the case of<\/p>\n
                 V\/s     State    of        U.P.”          reported
\n                                                                       “L.D.\n<\/p>\n
                                                                             in<\/p>\n
     “A.I.R. 1984 S.C. 1374” held that, “we are<\/p>\n
     sorry to say we cannot subscribe to the “slap-\n<\/p>\n
     say-sorry     and    forget”          school     of     thought         in<\/p>\n
     administration        of     contempt             jurisprudence.\n<\/p>\n
     Saying “sorry” does not make the slapper taken<\/p>\n
     the slap smart less upon the said hypocritical<\/p>\n
     word being uttered. Apology shall not be paper<\/p>\n
     apology and expression of sorrow should come<\/p>\n
     from the heart and not from the pen. For it is<\/p>\n
     one   thing    to    “say”   sorry-it           is      another         to<\/p>\n
     “feel” sorry”.\n<\/p>\n
     40. Therefore, in my opinion, in the facts of<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 17:43:56 :::<\/span>
\n                                       66<\/span>
\n                                                                          cp464.10<\/p>\n
     this case, no such apology can be accepted.\n<\/p>\n
     Therefore, at this stage, the learned counsel<\/p>\n
     appearing for the respondent\/alleged contemnor<\/p>\n
     is called upon to address this Court on the<\/p>\n
     point of sentence.\n<\/p>\n
     41. The    learned     counsel              appearing            for      the<\/p>\n
     respondent once again submits that the alleged<\/p>\n
     contemnor is praying for mercy jurisdiction of<\/p>\n
     this Court. He further submits that respondent<\/p>\n
     is    suffering     from    blood             pressure           and      the<\/p>\n
     respondent     will      try          to      comply          with        the<\/p>\n
     affidavit filed on 15.06.2011.\n<\/p>\n
     42. It    is   not    possible             for      this       Court        to<\/p>\n
     accept the submissions of the learned counsel<\/p>\n
     for the respondent. The learned Counsel for<\/p>\n
     the    respondent     is     not           sure        that       if      the<\/p>\n
     respondent     is    left    free           and       in     case       such<\/p>\n
     amount    as   assured      by        him      is     not      deposited<\/p>\n
     within two weeks, in that case respondent will<\/p>\n
     make himself available for compliance of the<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 17:43:56 :::<\/span>
\n                                67<\/span>
\n                                                              cp464.10<\/p>\n
     order    of   this    Court.    Therefore,             in       my<\/p>\n
     considered view in the facts of this case, the<\/p>\n
     respondent who has breached two undertakings<\/p>\n
     and also ran away from the process of law,<\/p>\n
     would not make himself available for complying<\/p>\n
     the orders passed in this Contempt Petition.\n<\/p>\n
     43. In case of Pritam Pal Vs. High Court of<\/p>\n
     Madhya Pradesh, Jabalpur through Registrar [ 1993<\/p>\n
     Supp (1) SCC 529 ], the Hon’ble Supreme Court<\/p>\n
     held :\n<\/p>\n
              “The   power    conferred    upon   the<\/p>\n
              Supreme Court and the High Court,
\n              being    Courts   of    record    under<\/p>\n
              Articles    129   and    215   of   the
\n              Constitution    respectively    is   an
\n              inherent power under which it can
\n              deal with contempt of itself.       The
\n              jurisdiction vested is a special one<\/p>\n
              not derived from any other statute
\n              but derived only from Articles 129
\n              and    215.           Therefore     the
\n              constitutionally vested right cannot
\n              be either abridged, abrogated or cut<\/p>\n
              down, by any legislation including
\n              the   Contempt     of    Courts    Act.
\n              Therefore, the submission of the
\n              contemnor that the impugned order is
\n              vitiated on the ground of procedural
\n              irregularities and that Article 215
\n              is to be read in conjunction with
\n              the provisions of Sections 15 and 17
\n              of the Act of 1971, cannot be
\n              countenanced.      Nor can they be
\n              controlled or limited by any statute<\/p>\n
                                     ::: Downloaded on – 09\/06\/2013 17:43:56 :::<\/span>
\n                                   68<\/span>
\n                                                                  cp464.10<\/p>\n
              or by any provision of the Code of<\/p>\n
              Criminal Procedure or any Rules.
\n              The caution that has to be observed
\n              in exercising this inherent power by<\/p>\n
              summary procedure is that the power
\n              should be used sparingly, that the
\n              procedure to be followed should be
\n              fair and that the contemnor should<\/p>\n
              be made aware of the charge against
\n              him    and   given    a   reasonable
\n              opportunity to defend himself.<\/p><\/blockquote>\n
                 The    Hon’ble     Supreme        Court         further<\/p>\n
     held :\n<\/p>\n
           “An intention to interfere with the proper
\n           administration   of   justice  is   not   an
\n           essential ingredient of the offence of
\n           contempt of Court and it is enough if the
\n           action complained of is inherently likely so<\/p>\n
           to interfere.”\n<\/p><\/blockquote>\n
     The Hon’ble Supreme Court further held in para 60 :\n<\/p>\n
              “60. The maxim “salus populi suprema lex”,<\/p>\n
              that is “the welfare of the people is the
\n              supreme law” adequately enunciates the idea
\n              of law. This can be achieved only when
\n              justice is administered lawfully, judicially,
\n              without fear or favour and without being
\n              hampered and thwarted, and this cannot be<\/p>\n
              effective unless respect for it is fostered and
\n              maintained.”\n<\/p><\/blockquote>\n
     44. Before I pass the appropriate order in<\/p>\n
     respect of sentence to be imposed upon the<\/p>\n
                                         ::: Downloaded on – 09\/06\/2013 17:43:56 :::<\/span>
\n                                         69<\/span>
\n                                                                            cp464.10<\/p>\n
     respondent\/alleged                contemnor,             it       will        be<\/p>\n
     worthy to refer to the judgment of the Hon’ble<\/p>\n
     Supreme Court in the case of Hira Lal Dixit<\/p>\n
     Vs.    State     of    Uttar       Pradesh           [    AIR      1954       SC<\/p>\n
     743    ],   where      the       Supreme         Court        held,       “The<\/p>\n
     summary     jurisdiction            exercised              by      superior<\/p>\n
     Courts      in        punishing          contempt               of      their<\/p>\n
     authority exists for the purpose of preventing<\/p>\n
     interference with the course of justice and<\/p>\n
     for maintaining the authority of law as is<\/p>\n
     administered           in     the        Court            and        thereby<\/p>\n
     affording protection to public interest in the<\/p>\n
     purity of the administration of justice.                                  This<\/p>\n
     is certainly an extraordinary power which must<\/p>\n
     be sparingly exercised but where the public<\/p>\n
     interest demands it, the Court will not shrink<\/p>\n
     from    exercising          it     and    imposing              punishment<\/p>\n
     even by way of imprisonment, in cases where a<\/p>\n
     mere     fine    may        not    be     adequate.”               Yet,       in<\/p>\n
     another case of David Jude Vs. Hannath Grace<\/p>\n
     Jude   &    ors.,      reported          in      [    (2002)         10     SCC<\/p>\n
     760    ],       the     Hon’ble          Supreme              Court         has<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 17:43:56 :::<\/span>
\n                             70<\/span>
\n                                                          cp464.10<\/p>\n
     considered the effect of breach of undertaking<\/p>\n
     and in the facts of that case, the Supreme<\/p>\n
     court found that, accepting mere apology of<\/p>\n
     the alleged contemnor is of no avail.\n<\/p>\n
     45. Yet, in another case of J. Vasudevan Vs.<\/p>\n
     T.R. Dhananjaya [ (1995) 6 SCC 249 ], the<\/p>\n
     Hon’ble Supreme Court, in para 14, held:\n<\/p>\n
           “14. Coming     to      the     mercy
\n           jurisdiction, let it be first
\n           stated    that     while     awarding
\n           sentence on a contemnor the Court<\/p>\n
           does so to uphold the majesty of
\n           law, and not with any idea of<\/p>\n
           vindicating the prestige of the
\n           Court or to uphold its dignity.\n<\/p>\n
           It    is   really    to    see   that
\n           unflinching faith of the people in<\/p>\n
           the courts remains intact.       But,
\n           if the order of even the highest
\n           Court of the land is allowed to be
\n           wilfully disobeyed and a person
\n           found guilty of contempt is let
\n           off by remitting sentence on plea<\/p>\n
           of mercy, that would send wrong
\n           signals   to    everybody    in   the
\n           country.     It has been a sad
\n           experience that due regard is not
\n           always shown even to the order of
\n           the highest Court of the country.
\n           Now, if such orders are disobeyed,
\n           the effect would be that people
\n           would lose faith in the system of<\/p>\n
                                 ::: Downloaded on – 09\/06\/2013 17:43:56 :::<\/span>
\n                           71<\/span>
\n                                                        cp464.10<\/p>\n
          administration    of   justice   and<\/p>\n
          would desist from approaching the
\n          Court, by spending time, money and<\/p>\n
          energy    to   fight   their   legal
\n          battle.    If in such a situation
\n          mercy is shown, the effect would
\n          be that people would not knock the
\n          door   of    the  courts   to   seek<\/p>\n
          justice, but would settle score on
\n          the streets, where muscle power
\n          and money power would win, and the
\n          weak and the meek would suffer.\n<\/p>\n
          That would be a death-knell to the
\n          rule of law and social justice<\/p>\n
          would receive a fatal blow.     This
\n          Court cannot be a party to it and,
\n          harsh though it may look, it is
\n          duty-bound     to    award    proper<\/p>\n
          punishment to uphold the rule of
\n          law, how so high a person may be.
\n          It may be stated, an IAS officer
\n          is of no consequence, so far as<\/p>\n
          the sentence is concerned.        We
\n          would indeed think that if a high<\/p>\n
          officer indulges in an act of
\n          contempt,    he   deserves   to   be
\n          punished more rigorously, so that
\n          nobody would take to his head to<\/p>\n
          violate the Court’s order. May we
\n          also say that a public officer,
\n          being a part of the Government,
\n          owes higher obligation than an
\n          ordinary citizen to advance the
\n          cause of public interest, which<\/p>\n
          requires maintenance of rule of
\n          law, to protect which contemners
\n          are punished.”\n<\/p>\n
     46. Therefore, I am of the view that in the<\/p>\n
                               ::: Downloaded on – 09\/06\/2013 17:43:56 :::<\/span>
\n                                 72<\/span>
\n                                                                cp464.10<\/p>\n
     present case, the ends of justice require that<\/p>\n
     the respondent Mohd. Osman S\/o Mohd. Ismail be<\/p>\n
     sentenced to undergo simple imprisonment for a<\/p>\n
     period of three months and to pay a fine of<\/p>\n
     Rs. 2000\/- (Rupees two thousand), in default<\/p>\n
     of payment of fine, he should further undergo<\/p>\n
     simple imprisonment for 15 days. Accordingly,<\/p>\n
     respondent-Mohd.       Osman    S\/o   Mohd.\n<\/p>\n
     held guilty of having committed civil contempt
\n                                                        Ismail         is<\/p>\n
     and is ordered to suffer imprisonment in terms<\/p>\n
     of Section 12 of the Contempt of Courts Act,<\/p>\n
     1971   for   a   period   of    three       months         simple<\/p>\n
     imprisonment and to pay a fine of Rs. 2,000\/-,<\/p>\n
     in   default     of   payment   of    fine,        he      should<\/p>\n
     undergo simple imprisonment for 15 days.\n<\/p>\n
     47. It is needless to mention that in pursuant<\/p>\n
     to the issuance of non-bailable warrant, the<\/p>\n
     respondent\/alleged contemnor was arrested and<\/p>\n
     produced before this Court on 6th September,<\/p>\n
     2011. He was directed to be kept in Harsool<\/p>\n
     Jail, Aurangabad till the next date i.e. 9th<\/p>\n
                                       ::: Downloaded on – 09\/06\/2013 17:43:56 :::<\/span>
\n                                          73<\/span>
\n                                                                         cp464.10<\/p>\n
     September,        2011     and      thereafter         also       he     was<\/p>\n
     kept in Harsool Jail till today. Therefore, he<\/p>\n
     is    entitled       for      set    off      from     the      date       of<\/p>\n
     arrest        till         this       date.          The        contempt<\/p>\n
     proceedings qua this respondent nos.1 and 2<\/p>\n
     i.e. Mohd. Osman Mohd. Ismail stands concluded<\/p>\n
     and disposed off. Respondent Mohd. Osman Mohd.<\/p>\n
\n\n     Ismail       \n                  should      be    sent      to\n\n<\/pre>\n
     undergo remaining part of the sentence. He is
\n                                                    Harsool          Jail       to<\/p>\n
     made aware that, he has right of appeal under<\/p>\n
     Section      19   of     the      Contempt        of     Courts        Act,<\/p>\n
     1971.\n<\/p>\n
     48. At this stage, the learned counsel for the<\/p>\n
     respondent\/alleged                contemnor          submits           that<\/p>\n
     sentence      may     be      suspended.        However,          in     the<\/p>\n
     peculiar facts and circumstances of this case<\/p>\n
     and    for    the     reasons       recorded         in     the      order<\/p>\n
     dated 6th September, 2011, this Court find it<\/p>\n
     very    difficult        to    suspend        the      sentence          and<\/p>\n
     release the alleged contemnor, since there is<\/p>\n
     no assurance from the counsel appearing for<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 17:43:56 :::<\/span>
\n                                           74<\/span>
\n                                                                          cp464.10<\/p>\n
     the respondent\/contemnor that in case sentence<\/p>\n
     is suspended, the respondent will make himself<\/p>\n
     available      to       undergo      remaining          part       of     the<\/p>\n
     sentence. In that view of the matter, such<\/p>\n
     prayer    is       rejected.      As       stated       earlier,          the<\/p>\n
     respondent-Mohd. Osman S\/o Mohd. Ismail should<\/p>\n
     be     sent        to   Harsool           Jail     for       undergoing<\/p>\n
     this<\/p>\n
     remaining part of the sentence. The copy of<\/p>\n
               judgment          should           be        supplied             to<\/p>\n
     respondent-Mohd. Osman S\/o Mohd. Ismail by the<\/p>\n
     Registry free of cost forthwith without any<\/p>\n
     delay.\n<\/p>\n
     49. At this juncture, it will not be out of<\/p>\n
     place    to    mention         and    appreciate            that,       Shri<\/p>\n
     S.P.     Chapalgaonkar,               the        learned           counsel<\/p>\n
     appearing for the respondent nos.1 and 2 had<\/p>\n
     adopted       very      fair     approach          throughout             the<\/p>\n
     hearing       of    this   Contempt          Petition          and      also<\/p>\n
     rendered very able assistance to this Court.\n<\/p>\n
     50. So far as respondent nos. 3 and 4 are<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 17:43:56 :::<\/span>
\n                                   75<\/span>
\n                                                                  cp464.10<\/p>\n
     concerned, initially no notice was issued to<\/p>\n
     them    and     therefore,        this     Court        feel        it<\/p>\n
     appropriate      to    dispose       of      this        Contempt<\/p>\n
     Proceedings      qua   respondent         nos.3      and       4    as<\/p>\n
     well.\n<\/p>\n
     .          Accordingly Contempt Petition stands<\/p>\n
     disposed of. Original papers of Writ Petition<\/p>\n
     no. 2177\/2009, should sent back forthwith to<\/p>\n
     the Writ Section of the Registry.\n<\/p>\n
                                              [ S.S. SHINDE, J ]
\n     ga s\/cp464.10<\/p>\n
                                         ::: Downloaded on – 09\/06\/2013 17:43:56 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Rafia Sultana vs Mohd. Osman on 12 September, 2011 Bench: S. S. Shinde 1 cp464.10 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-155125","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nRafia Sultana vs Mohd. 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