Ku. Saroj Pundlikrao Datir Vs. Dr. Prakash Nandurkar, Secretary, Satchikitsa Prasarak Mandal, - Court Judgment

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contempt of court - willful disobedience of order of court - sections 10 and 12 of the contempt of courts act, 1971 - appellant terminated by first and second respondents from post of assistant teacher - appellant filed appeal claiming reinstatement in service with back-wages, continuity in service and other benefits - school tribunal held termination of appellant illegal and void - respondents directed to reinstate appellant - first and second respondents filed writ petition - single judge partly allowed said petition - respondents challenged order before division bench by filing l.p.a. - division bench dismissed appeal - respondents issued letter to appellant pending l.p.a. asking her to join services - appellant refused to join back service in pursuance to that letter alleging that respondents failed to comply with relevant court order and committed willful disobedience of it and contending that respondents liable for contempt of court under sections 10 and 12 of act - whether issuing letter be treated as bona fide compliance of order by respondents - held, willful implies some mala fides or deliberate intention for disobedience of the order of this court - there is no such case warranting any action for contempt of court and punishment for that - respondents legally entitled to take attempt to get stay order from l.p.a. from court - respondents complied with order of court by way of letter to appellant as they failed to get stay order - difficult to brand respondents for commission of willful disobedience of order of court - appellant also employed elsewhere with similar remuneration showed that she is not much keen to join services of respondents at relevant time - petition dismissed - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - according to him, as the period of eight weeks expired on 23.11.2007, the letter dated 26.11.2007 was clearly in contempt of the order of the court, because it was willful disobedience on the part of respondent nos. according to him, as the petitioner was in service in other department & office, from time to time, and she was getting better salary, she did not join the school of the respondents in pursuance to the letter dated 26.11.2008. he has pointed out that on 23.11.2007, it was friday (when allegedly period of eight weeks expired), 24.11.2007 was saturday, 25.11.2007 was sunday and 26.11.2007 was monday, when in fact the said letter was issued. 31.1.2008. in any case, according to him, the appointment letter was issued on 26.11.2007, it was well within the time and as such, according to him, there is no breach of the order, which is alleged to have been disobeyed in this contempt petition. 1 & 2. on perusal of the same, it would be seen that she was employed for quite a long time with good remuneration in vasant naik school, shamrao dudhe adhyapak mahavidyalaya and sarva shiksha abhiya, yavatmal. 17. here is the case, where the order which is sought to have been complied with was dated 28.9.2007. eight weeks period clearly expired on 23.11.2007. as stated above, there were two intervening holidays and therefore, the appointment letter was issued on 26.11.2007. the fact that the l. court, was clearly an action of the respondents for which they were legally entitled to.s.r. dongaonkar, j.1. heard shri anjan de, advocate, for the petitioner, shri suresh dhole, advocate, for respondent nos. 1 & 2 and shri p.d. kothari, agp, for respondent nos. 3 & 4. 2. the petitioner has filed this petition against the respondents for taking action under section 10 & 12 of the contempt of courts act and article 215 of the constitution of india. the reliefs claimed by the petitioner in this petition are thus-i. take action against the respondents 1 to 4 under the contempt of courts act and punish the contemnors in accordance with the provisions of law; in w.p. no. 3254/07, order dated 28/9/07 ii. direct the respondents to reinstate the petitioner immediately and pay all the back wages forthwith to the petitioner; iii. by an interim order direct the respondents to reinstate the petitioner and pay the back wages to the petitioner immediately during the pendency of the petition; iv. grant any other relief deemed fit 3. the petition arose out of the proceedings of appeal initiated by the petitioner in appeal no. 43/03 before presiding officer, school tribunal, amravati. the petitioner was terminated by respondent nos. 1 & 2 by the order dated 23.6.2003 from the post of assistant teacher. she filed the appeal claiming reinstatement in service with back-wages, continuity in service and other benefits. 4. after hearing the parties, the learned presiding officer, school tribunal, held that the termination of the appellant was illegal and void. he, therefore, quashed the same. the petitioner was directed to be reinstated within 30 days from the date of judgment of the school tribunal. the respondents were further directed to record the absence of the petitioner as a period of continuity in service. she was also awarded back-wages payable within 60 days from the date of judgment. it is necessary to mention that the copy of that order was directed to be sent to the education officer (secondary), zilla parishad, yavatmal, for information and necessary action. this order was passed by the presiding officer, school tribunal, amravati, on 20.6.2007. 5. respondent nos. 1 & 2 took exception to this order in writ petition 3454/07 before this court. by the judgment dated 28.9.2007, the learned single judge of this court partly allowed the said petition. following are the important observations in the said oder, which are noted thus ........ 6. in the result, writ petition is partly allowed, upon the concession made by respondent no. 2, the order awarding back wages is quashed and set aside. if the respondent no. 2 is not reinstated by the petitioners within 8 weeks from today, the order made on the concessions given by the respondent no. 2 regarding back wages shall stand recalled and respondent no. 2 shall be entitled to execute the order of award of back wages. 6. the respondents again challenged that order before the division bench of this court by filing l.p.a. no. 366/2007. the division bench of this court dismissed the said appeal with the following observations by the order dated 31st january, 2008. .... 2. it was contended by the learned counsel for the appellants that, respondent no. 2 applied for being appointed on honourary basis on 21-06-2002 and that from april, 2003 she did not report to duty. however, the learned presiding officer of the school tribunal, after perusing the documents maintained by the appellants, came to the conclusion that, respondent no. 2 was appointed on 19-07-95 in a clear permanent vacancy and she continued to discharge the duties of the assistant teacher at least till april, 2003. the school tribunal held that, oral termination of respondent no. 2 is illegal. this finding of the school tribunal was confirmed by the learned single judge. in view of the concurrent findings, we see no reason to interfere.thus, in terms of the order of this court in writ petition, the order of the school tribunal was confirmed. 7. by alleging that the respondents did not comply with the relevant order and committed willful disobedience of the same, the petitioner filed this petition, for taking action against the respondents for contempt of court under section 10 & 12 of the contempt of courts act, apart from the action under article 215 of the constitution of india. 8. during the course of the proceedings of this petition, the following order was passed on 21st october, 2008, by this court. mr. dhole, learned counsel for respondents 1 & 2, submits that another order dated 21.10.2008 reinstating the petitioner has been made and is being handed over to mr. de. the petitioner can join the duties under protest since this contempt petition will have to be hard. the petitioner can join on 24.10.2008 under protest.it is necessary to place on record at this stage that the petitioner has joined on the relevant post on 24.10.2008 under protest. 9. learned counsel for the petitioner has submitted that the appointment letter given by the respondents institution on 26.11.2007 was not at all in conformity with the order of this court in writ petition. according to him, the said letter cannot be considered as a reinstatement letter, muchless in compliance with the order of this court. according to him, the relevant order in writ petition was passed on 28.9.2007. the same was to be complied with within a period of eight weeks to claim the concession for payment of back- wages. according to him, as the period of eight weeks expired on 23.11.2007, the letter dated 26.11.2007 was clearly in contempt of the order of the court, because it was willful disobedience on the part of respondent nos. 1 & 2. according to him, as the petitioner was serving in some other office, she had, in all fairness, conceded that she would forgo the claim for back-wages for the relevant period. however, as the respondent nos. 1 & 2 did not comply with the orders of this court, within 8 weeks, as stipulated, whole of the back wages became due and they were liable to be paid by the respondents and as the same are not paid, the respondent nos. 1 & 2 are liable for the action under contempt of courts act so also respondent no. 3 & 4. 10. learned counsel for the petitioner has relied on certain authorities in support of his contentions. the first is, : 2002 (1) mh.l.j. 834; nagdevi kamgar sabha v. hiralal maganlal & company and ors., wherein it has been held that the action for disobedience of the order of the court would lie under the contempt of courts act even if alternate remedy is available. he has also relied on the judgment of this court reported in 1991 (1) mh.l.j. 31; shaheda sarwar khan v. sarwar ahmed rauf khan and ors.; wherein it has been held that the correctness, legality and validity of the order of which contempt is alleged, cannot be considered by the court in a contempt proceeding. according to him, the order, as it stands, has to be obeyed and if there is any intentional or deliberate violation, it is punishable as contempt. the learned counsel has further relied on the judgment of this court reported in 2001(1) mh.l.j. 261; vilas shankarrao deshmukh and anr. v. s.a.ghode, principal, navprabhat vidya mandir and junior college, thanegaon and ors to contend that the action for contempt of court would lie, when the orders of school tribunal are not complied with, more so in the particular case when the said order is confirmed by this court. he has also pressed into service the observations of the apex court in the decision reported in : 2006 (1) scc 613; union of india and ors. v. subedar devassy pv, wherein it has been held that in the contempt proceedings, the court is concerned only with the question as to whether earlier decision has been complied with or not. it cannot examine correctness of earlier decision or traverse beyond it and take a different view from what was taken therein and give additional direction or delete any direction therein. according to the learned counsel, therefore, the order, as it is, should have been complied by the respondents. 11. as against this, learned counsel for respondent nos. 1 & 2 has contended that there was no willful disobedience on the part of the respondents to comply the relevant order. according to him, the letter dated 26.11.2007 issued by the respondents to appoint the petitioner was in conformity with the order passed by this court. according to him, as the petitioner was in service in other department & office, from time to time, and she was getting better salary, she did not join the school of the respondents in pursuance to the letter dated 26.11.2008. he has pointed out that on 23.11.2007, it was friday (when allegedly period of eight weeks expired), 24.11.2007 was saturday, 25.11.2007 was sunday and 26.11.2007 was monday, when in fact the said letter was issued. therefore, according to him, there was enough compliance of the order that was required to be complied. further, according to him that in the present case, the order of this court in the writ petition was challenged by filing l.p.a. by respondent nos. 1 & 2. the said l.p.a. was filed on 2.11.2007. it was first time listed for admission on 9.1.2008. on 31.1.2008, the same was disposed of. according to him, when the respondents were not able to get the order of stay from the l.p.a court, a letter of appointment was issued to the petitioner on 26.11.2007, which was not at all responded by the petitioner and therefore, according to him, the action for contempt of court will not be attracted. according to him, here is the case where the petitioner was employed beneficially elsewhere and therefore, she was not entitled for back-wages for that period in view of the concession made by the petitioner at the time of hearing of the writ petition. according to him, as the petitioner did not join the services at her own accord, she would not be able to maintain the action for contempt of court. he has also relied on some of the authorities in support of his contention. to briefly mention, he has relied on the judgment of the apex court reported in 1998 air scw 1653; chetak construction ltd. v. om prakash and ors. he has further relied on the decision of the apex court reported in : air 1999 sc 3215; kapildeo prasad sah and ors. v. state of bihar. apart from this, he has relied on the note below no. (2) in the commentary on air mannual under contempt of courts act, under section 20 wherein it is noted that, when the order of the high court is challenged before the supreme court, and supreme court dismissed the appeal, the order of the high court is merged into the order of the supreme court and therefore, the limitation would start from the date of the order of the supreme court. meaning thereby, in the present case, the period of eight weeks would start from the date of the decision of the l.p.a. i.e. 31.1.2008. in any case, according to him, the appointment letter was issued on 26.11.2007, it was well within the time and as such, according to him, there is no breach of the order, which is alleged to have been disobeyed in this contempt petition. 12. the learned agp while defending the action contended that the education officer had written to the respondent nos. 1 & 2 and informed to comply with the orders of the school tribunal and of this court in writ petition & l.p.a and, in case of non compliance, they would be liable for contempt of court. according to the learned agp, the respondent no. 1 & 2 management is solely responsible for contempt of court for disobeying the orders in this case, if there is any contempt. according to him, the state government or its officials cannot be said to be responsible for the contempt of court in the instant case. 13. it is needless to mention that for constituting an offence of contempt of court, i. e. civil contempt, there has to be willful disobedience to any judgment, decree, order, writ or any process of the court or willful breach of the undertaking given to the court. instant is the case, wherein eight weeks time was granted to the respondents to comply with the order, failing which the petitioner was entitled to get back-wages despite her concession. the l.p.a. was preferred by the respondents to challenge that order, which was passed by this court in the writ petition. as already stated above, as no stay was granted, the petitioner had been issued a letter on 26.11.2007, asking the petitioner to join the services. the crucial question is whether that can be treated as bonafide compliance by the respondents of the order of which compliance was sought or it is willful disobedience of the order. it is not disputed that the petitioner did not join in pursuance to that letter. she has joined the services when this court had passed an order dated 21.10.2008. 14. at this stage, it is necessary to note the contents of the letter dated 26.11.2007, the same read thus. dr. nandurkar vidyalaya, yavatmal run by sat chikitsa prasarak mandal, yavatmal shri satya sai vidya nagri, p.b. no. 7, yavatmal 445001 phone no. 07232-241058 ====================================== outward no. 138/07 date:26.11.2007 to, ku. saroj d/o pundlikrao datir, c/o shri dilip tarpe, near ujwal nagar board, near gulhana kirana shop deep nagar, yavatmal. subject : engaging you at work reference: 1) your application dt. 21.6.2002 to engage you on honorarium 2) judgment of honble high court dt. 28.9.2007 in writ petition no. 3254/2007 1) without prejudice to legal rights of the undersigned, you are engaged at work with effect from 28.11.2007 2) you will be entitled for the remuneration/honorarium which you have drawn last from april 2003 as per the record of the school. sd/-in-charge headmistress,nandurkar vidyalaya, yavatmal. 15. learned counsel for the petitioner has submitted that the petitioner was asked to join on the remuneration/honorarium drawn last from april 2003 as per record of the school. and therefore, that was not valid compliance. as against this, learned counsel for the respondent nos. 1 & 2 has brought to my notice that the reference was also made in that letter to the judgment of this court dated 28.9.2007 in the writ petition. according to him, the remuneration etc., whatever payable to the petitioner was in accordance with the judgment of this court. as already pointed out above, it is his contention that the petiitoner was beneficially employed in other department & school and therefore, she was not keen to join the services with the respondents. 16. as per direction of this court, the petitioner was directed to submit the details of her employments from november, 2003, to october, 2008 i.e. till she had joined the school of the respondent nos. 1 & 2. on perusal of the same, it would be seen that she was employed for quite a long time with good remuneration in vasant naik school, shamrao dudhe adhyapak mahavidyalaya and sarva shiksha abhiya, yavatmal. it was also tried to point out before this court that the date on which she sought to be in the office of respondent nos. 1 & 2 for joining, she was on duty in the aforesaid institutions where she was employed and therefore, according to the learned counsel for the respondents, the petitioner was just making a show that she was ready and willing to join in the respondents school, thogh she was not keen to join there as she was beneficially employed in other schools and sarva shiksha abhiyan, yavatmal. 17. here is the case, where the order which is sought to have been complied with was dated 28.9.2007. eight weeks period clearly expired on 23.11.2007. as stated above, there were two intervening holidays and therefore, the appointment letter was issued on 26.11.2007. the fact that the l.p.a. was pending before this court also has to be borne in mind while considering the action of the respondents. the attempt to get the stay order from the l.p.a. court, was clearly an action of the respondents for which they were legally entitled to. in these circumstances, when they could not succeed to get the stay order, they complied with the order of this court on 26.11.2007 i.e. immediately. in my opinion, in such circumstances, it is difficult to brand respondent nos. 1 & 2 for having committed willful disobedience of the order of this court. the letter issued by them also gives reference to the judgment of this court in reference no. (2). therefore, in my opinion, it would have been proper for petitioner to join the services first may be under protest and then re-agitate the matter before this court or before the school tribunal for compliance of the order. that would have been proper follow up. 18. at this stage, it can not be lost sight of the fact that the order of the school tribunal as it was confirmed in the writ petition; could have been enforced by the petitioner in terms of the provisions of section 13 of the m.e.p.s. act. the judgment of this court reported in 2001 (1) mh.l.j. 261; vilas shankarrao deshmukh and anr. v. s.a. ghode, principal, navprabhat vidya mandir and junior college, thanegaon and ors., is explicit on the issue. even if the petitioner would have joined in pursuance to the letter dated 26.11.2007, in my opinion, that could not have been treated as an acceptance of the service by the petitioner only on the basis of the honorarium or less pay on alleged no grant basis, there is exchange of letters between the petitioner and respondent nos. 1 & 2, each blaming each others. the fact that the petitioner was employed elsewhere with similar remuneration, would tend to show that she may not be that much keen to join the services of the respondents at the relevant time. it appears that when she was discharged from her services in 2008, she tried to enforce her rights as accrued by the order of this court by way of this contempt petition. needless to say that the contempt petition cannot be a tool for getting execution of the order. in : air 1999 sc 3215; kapildeo prasad sah and ors. v. state of bihar, it has been observed by the apex court in para 10 thus, 10. in his famous passage, lord diplock in attorney general v. times newspapers ltd. (1973) 3 all er 54, said that there is also an element of public policy in punishing civil contempt, since administration of justice would be undermined if the order of any court of law could be disregarded with impunity. jurisdiction to punish for contempt exists to provide ultimate sanction against the person who refuses to comply with the order of the court or disregards the orders continuously. initiation of contempt proceedings is not a substitute for execution proceedings through at times that purpose may also be achieved.therefore, this petition cannot be utilized for enforcing the order of this court or that of school tribunal. there is an independent remedy provided for it. 19. the question really is whether there is proved or established willful disobedience of the order of this court. willful implies some malafides or deliberate intention for disobedience of the order of this court. it is difficult to say that there is such a case, considering the totality of the circumstances warranting any action for contempt of court & punishment for that. 20. the action, therefore, as sought by the petitioner fails. the petition is dismissed. however, it is made clear that the petitioner shall be entitled for all such legal remedies for the execution of the order of the school tribunal and of this court as may be permissible under the law. 21. petition dismissed. no order as to costs.