R.A. Mehta, J.
1. The petitioner is a teacher in the Primary School run by the respondent-Management. She made an Application No. 207 of 1988 before the Gujarat Primary Education Tribunal complaining that she had not been paid her salary for last four years and prayed that the respondents be directed to pay regular salary to her and to pay arrears from 1-1-1984, as per the revised pay scale. The Management was served and from time to time adjournments were sought and, ultimately, on 18-10-1988, the evidence of the applicant was recorded, and it was adjourned for cross-examination to 19-11-1988. On that day, again the respondent sought adjournment, which was granted. Thereafter also, adjournments were sought and granted and, ultimately, as the respondents did not remain present, the case was decided ex parte against the respondents.
2. The case was that the petitioner had not been paid her salary since 1-4-1984 and she was not being paid because she had asked for her full regular salary as per rules. She asked for arrears of salary on basis of her regular pay scale and the computation was produced at Exh. 4. The respondent-School is a recognised private primary school and is governed by Bombay Primary Education Act and is governed by the pay-scales prescribed by the Government from time to time, under Rule 106-E read with the Schedule. However, the Tribunal granted the relief only from 22-5-1986 on the ground that the provisions of Section 40G(2) of the Bombay Primary Education Act had come into force from 22-5-1986 and therefore, the claim for salary prior to that period cannot be granted and the claim for the period prior to 22-5-1986 was beyond the jurisdiction of the Tribunal. Ultimately, the Tribunal directed the respondent-Management to pay to the petitioner from 22-5-1986 the pay-scale of an Untrained Teacher, as per the pay-scales prescribed by the Government taking into consideration the length of service and to continue to pay salary to her every month. The arrears were directed to be paid within three months of the award dated 28-2-1989. The respondent-Management challenged the decision of the Gujarat Primary Education Tribunal by way of Special Civil Application No. 8715 of 1989. That petition has been admitted, but interim relief has been expressly refused.
3. On account of the non-compliance with the order of the Tribunal and for disobeying the order of the Tribunal, a Contempt Petition, being Misc. Civil Application No. 895 of 1989 was filed by the petitioner and it came to be disposed of on June 10, 1993. The Division Bench observed that it would have passed an order convicting the Management for committing contempt of Court and passing an order of sentence on them. However, in order to give them one more opportunity, the Division Bench directed the respondents to comply with the order passed by the Education Tribunal within one month. It also observed that if within one month the order passed by the Education Tribunal was not complied with, it would be open to the petitioner to move this Court again to initiate contempt proceedings against the respondents. It was expressly made clear to the respondents that in such a case the Court would proceed on the basis that they were wilfully disobeying the order passed by the Education Tribunal and action would be taken not only against them but also against all those who were found to be guilty of connivance or negligence in not complying with the order of the Tribunal.
4. With these directions, the Contempt Petition was disposed of. This judgment dated 10-6-1993, was intimated to both the respondents by letter dated 7-7-1993, enclosing therewith a copy of the judgment. A copy thereof was also forwarded to the learned Advocate for the respondent-Management. Inspite of that, the respondent-Management failed and neglected to comply with the High Court -direction. Therefore, the present Contempt Petition was filed, and the Division Bench admitted the petition and issued Rule.
5. By an order dated 10-1-1994, the respondents were directed to produce computation of the amounts payable to the petitioner, by 21-1-1994. Such computation was not filed and in the affidavit-in-reply dated 3-8-1994, in para 4, the order directing production of computation is reproduced. In that affidavit-in-reply, respondent No. 2 says that the above direction for presenting the computation is not capable of being implemented, on the ground that the petitioner was never a regular employee and no order of appointment had been presented by the petitioner before any authority, in absence of which the basic salary payable to the petitioner is not free from objections from the respondents and therefore, the computation as demanded by the High Court, without adjudicating upon the substantial issue in Special Civil Application No. 8715 of 1989, is not capable of being presented in any form before this High Court.
6. When we pointed out that even though the Management may have any objection to the order of the Tribunal directing to make payments and the Court has directed computation to be made, the Management is bound to prepare the computation of the amount payable as per the judgment and order of the Tribunal or the Court. It is open to the Management to say that this is without prejudice to their objections to the judgment of the Tribunal. However, the computation has to be made notionally, as if the judgment of the Tribunal is to be complied with. The judgment of the Tribunal is absolutely clear that the computation is to be made as per the Govenment pay-scales for teachers.
7. After persistent insistence, the respondents produced two computations - one on the basis of basic pay of Rs. 1,200/- per month plus other allowances and another on the basis of basic pay of Rs. 950/- per month plus the allowances. This, of course, is without prejudice to their objections to the judgment of the Tribunal which is the subject-matter of writ petition where interim relief is refused. As per the Management's calculation, on the basis of pay-scale of Rs. 950/-, the proper amount payable to the petitioner upto January, 1994 is Rs. 1,42,387/-. Thereafter, six months have passed. On the basis of calculation of basic pay of Rs. 1200/-, the total amount payable to the petitioner upto December 1993, comes to Rs. 1,93,405/-.
8. It thus appears that though these calculations were made and ready in January, 1994, they were deliberately not produced in the Court. The petitioner does not admit the correctness of the calculation of the Management and it is submitted on behalf of the petitioner that the arrears calculated upto February, 1994 would be Rs. 2,32,245/-. In any view of the matter huge arrears remain to be payable to the petitioner, though the amounts vary as per the calculation of both the sides. In any case, the arrears even according to Management is around 1.5 lacs.
9. The learned Counsel for the respondents has raised the following contentions:
(1) That the respondent-Management is a minority institution and therefore, it is not subject to the provisions of the Bombay Primary Education Act and the Rules, and the Primary Education Tribunal has no jurisdiction to entertain and decide the application preferred by the petitioner.
(2) That under Order 31, Rule 1 of the Code of Civil Procedure, 1908, this application, without joining all the beneficiaries of the respondent-Trust, is not maintainable.
(3) That in absence of compliance with the provisions of Sections 50 and 51 of the Bombay Public Trusts Act and joining the Charity Commissioner as a party in these proceedings, these proceedings are not maintainable.
(4) Lastly, it is submitted that the respondent-Management does not have any money or means/resources from which it can make any payment to the petitioner and, therefore, there is no wilful or deliberate breach of the order of the Court. It is submitted that when the respondents are not in a position to pay, they cannot be said to have deliberately disobeyed the order of the Court.
10. Regarding the exemption to minority institution, reliance has been placed on the judgment of the Division Bench of this Court in the case of Benson Knock Semual v. State of Gujarat and Ors. reported in : AIR1984Guj49 . By that judgment, the High Court held that certain clauses of Schedule 'F' of the Bombay Primary Education Rules, 1949, were violative of Article 30 of the Constitution of India and were not applicable to minority institutions.
11. The reliance placed by the respondents on this judgment is wholly misplaced, firstly, because the provisions governing the conditions of service of the teachers in private schools, including pay and allowances were held to be intra vires and the contention that those provisions were ultra vires was rejected, and secondly, because after this judgment, there is amendment to the Bombay Primary Education Act by introduction of Chapter 7-A inserted by Gujarat Amendment Act of 1986, which came into force on 22-5-1986. This Chapter contains provisions from Section 40A to Section 40H. Section 40H reads as follows:
40H. Savings. -- Nothing contained in Sub-clause (ii) of Clause (a), Clause (b) of Sub-section (1) and Sub-sections (2), (4) and (5) of Sees. 40B and 40C shall apply to any recognised private primary school established and administered by a minority, whether based on religion or language.
In the present case, none of these clauses are applicable. The Tribunal constituted under Section 40F has jurisdiction to decide all disputes under Section 40E between the Management of a recognised private primary school and teacher in service of such school. The dispute regarding pay-scale and non-payment thereof is a dispute covered by Section 40E and not by any of the clauses referred to in Section 40H. Therefore, this contention that the Tribunal has no jurisdiction is wholly misconceived and baseless.
12. Even the judgment relied upon by the petitioner is against the petitioner. There, a specific contention was raised that the regulation regarding conditions of service, including pay and allowances, was ultra vires Article 30 of the Constitution, and in para 27 it was clearly held as follows:
27. The above provisions of Schedule 'F' clearly trench upon the right of the management of the minority institutions and in so far as the undertaking to be furnished under Rule 106(2) obliges the minority institution managements to abide by these provisions as conditions of recognition, they would be clearly violative of Article 30 of the Constitution and they would not be to that extent applicable to the cases of minority institutions. The other provisions in the new Schedule 'F' which, inter alia, prescribe for the scales of pay, leave, retirement benefits and conduct and disciplinary proceedings are in the nature of regulatory measures and they cannot be said to be derogatory to the right of the management and the undertaking to abide by these provisions would not, therefore, attract the prohibitory mandate of Article 30 and cannot be said to be ultra vires the Constitution.
13. This was on the basis of the Supreme Court ruling in the case of All Saints High School v. Govt of Andhra Pradesh AIR 1980 SC 1042, wherein it was held that is open to the Government or the University to frame rules and regulations governing the conditions of service of teachers in order to secure their tenure of service and to appoint a high authority armed with sufficient guidance to see that the said rules are not violated or the members of the staff are not arbitrarily treated or innocently victimised. In such a case the purpose is not to interfere with the internal administration or autonomy of the institution but it is merely to improve the excellence and efficiency of the education because a really good education can be received only if the tone and temper of the teachers are so framed as to make them teach the students with devotion and dedication and put them above all controversy. Therefore, this judgment also holds that even in case of minority institution, the prescription of pay-scale by the Government would be a regulatory measure and minority institution is not exempted from operation thereof and Article 30 of the Constitution does not make the minority institution immune from the operation of such provisions.
14. The next two contentions regarding Order 31 of the Code of Civil Procedure and Sections 50 and 51 of the Bombay Public Trusts Act are merely stated to be rejected. These provisions have no relevance or applicability to the present Contempt case. In the present case, the allegation is that the respondents have defied the judgment and order of the Tribunal and thereby have committed Contempt of Court, under the Contempt of Courts Act. Order XXXI of the Code of Civil Procedure, 1908, provides that in all suits concerning property vested in a trustee, executor or administrator where the contention is between the persons beneficially interested in such property and a third person, the trustee, executor or administrator shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties to the suit. But the Court may, if it thinks fit, order them or any of them to be made parties. In no manner, this provision is applicable to the present case. Moreover, that provision also says that ordinarily it shall not be necessary to make them parties.
15. Section 50 of the Bombay Public Trusts Act relates to suits relating to public trusts where there is allegation regarding breach of public trust, and where a direction is required to recover possession of a property belonging to a public trust or the proceeds thereof or for an account of such property or proceeds from any person including a person holding adversely to the public trust, or where the direction of the Court is deemed necessary for the administration of any public trust. This provision also has no application to an application under the Contempt of Courts Act or to an application before the Tribunal. Section 51 of the Bombay Public Trusts Act requires consent of the Charity Commissioner for institution of the suits, and this provision also has no application or relevance to the present case. Therefore, both these contentions also are rejected.
16. The last contention regarding inability to pay requires consideration. It is not in dispute that the petitioner is and has been in service for all these ten years, and even today. It is also not in dispute that she has not been paid her salary. It is shocking that the respondent-Management has not paid the salary of the petitioner for all these ten years. It is also not in dispute that there are other teachers and they are being paid their salaries regularly. In these circumstances, it is impossible to uphold the contention of the respondents that the respondent-Management has no means to pay the salary of only the petitioner. In the affidavit-in-reply dated 29-1-1994, in paragraphs 5 and 6, it is stated that some payments were made in the months of October, November and December of Rs. 1,000/- each and thereafter amount of Rs. 1000/- ad hoc is paid to the petitioner every month and by now an amount of Rs. 9,000/- is paid to the petitioner, during the pendency of the present Contempt Petition.
17. In para 10 of the affidavit-in-reply dated 29-1-1994, it is averred as follows:
This respondent though at some time during the pedency of this application was ready and willing and in a position to pay and discharge Rs. 25,000/- towards the remuneration of compelled employment with this trust without prejudice to the rights and contentions and the decision in Special Civil Application, the applicant did not co-operate this respondent and in due course such amount has been utilised for further and other obligations of this respondent-Trust and no other and further finances are in reserve or can be gathered so as to meet the illegal demand of the alleged non-payment of salary to the petitioner.
It is thus an admitted position that the respondents were having a sum of Rs. 25000/- and was in a position to pay the same to the petitioner and has admittedly utilized that amount for other purposes, and not paid to the petitioner. The reason given by the respondents that the petitioner did not co-operate is thoroughly incredible statement. The learned Counsel for the respondent submitted that the petitioner has refused to accept this amount because it was not full payment and the petitioner insisted on full payment of rupees two lakhs or more and because it was not full payment, the petitioner had refused payment. This is simply fantastic. The petitioner has accepted even small amounts of Rs. 1,000/- and Rs. 2,000/- as admitted by both the sides that a total amount of Rs. 9,000/- has been paid to the petitioner during the pendency of this Misc. Civil Application for one year. It is, therefore, absolutely unacceptable that the petitioner would refuse to accept the payment of Rs. 25,000/ - which is alleged to have been offered by the respondents.
18. Another contention raised in the affidavit-in-reply dated 29-1-1994 is that a sum of Rs. 27,759/-, being the amount of Lillah Huba collected by the petitioner from the students has not been credited in the Trust. In this connection, the Head Master of the school, H.Y. Purohit, has in his statement produced by the respondents, stated that such amounts collected by the petitioner had been handed over to the new Secretary, Kubanhusen Nurali. If there is any dispute amongst the Trustees inter se, it is not the fault of the petitioner. There is clear statement of the Head Master of the School that the petitioner has paid such amount. Even if we assume for the sake of argument (which we have already rejected), the liability of the respondent-Management is of about rupees two lakhs, and this contention would not justify the respondents not to pay the amount which is legitimately due to the petitioner, and not to comply with the order of the Tribunal and commit breach of the same.
19. In view of the aforesaid circumstances that the respondents have been paying salary to other teachers, the fact that the respondents had admittedly a sum of Rs. 25,000/- for payment to the petitioner but not paid it to her and have spent it away for other purposes, this is a clear case of deliberate and wilful defiance of the order of the Tribunal and Contempt of Court.
20. As regards the submission that the respondent-Trust is unable to pay, there is merely a bare word and the best evidence in possession of the respondents in the nature of account books, daily cash books, ledgers, vouchers, minutes books and balance sheets and auditor's report, etc. are kept back from the Court, and, therefore, it would be legitimate to draw an adverse inference against them that if all these documents were produced, they would have shown that the Trust has the means and has been spending the amounts elsewhere and not paying to the petitioner.
21. In these circumstances, it is proved beyond all doubts that the respondent No. 2 has deliberately and wilfully disobeyed the order of the Tribunal and committed breach of the order of the Tribunal. The matter is aggravated because inspite of the order of the High Court in earlier Contempt Petition, where the High Court had observed that the High Court would have convicted the respondent-Management for breach of order of the Tribunal and Contempt of Court and yet had refrained from doing so and given an opportunity to the respondent-Trust to comply with the order of the Tribunal, that order has not been complied with and a second Contempt Petition is required to be filed. Therefore, this is a fit case where a very serious view is required to be taken.
22. We, therefore, convict the respondent No. 2 for contempt under Section 12 of the Contempt of Courts Act and sentence him to suffer simple imprisonment for a term of three months and also to pay a fine of Rs. 2,000/- (Rupees two thousand only), in default of payment of fine, to suffer further imprisonment for one month. Rule is made absolute accordingly against respondent No. 2.
As far as respondent No. 1 is concerned, Mr. D.N. Pandya does not appear for him. Respondent No. 1 is not present. By order dated 10-1-1994, both the respondents were directed to remain personally present in this Court on 21-1-1994 and subsequent dates of hearing. Since respondent No. 1 is neither represented nor present, we direct that a bailable warrant in the sum of Rs. 5,000/- (Rupees five thousand only) in cash with a surety for like amount be issued against respondent No. 1 to secure his presence at all hearings. Bailable warrant to respondent No. 1 returnable on 26-9-1994.