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Rafia Sultana D/O Iqbal Ahemed Khan Vs. Mohd. Osman S/O Mohd. Ismail and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai Aurangabad High Court
Decided On
Case NumberCONTEMPT POETITION NO.464 OF 2010 IN WRIT PETITION NO.2177 OF 2009
Judge
ActsMaharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 - Section 9; Contempt of Courts Act 1971 - Section 20, 2(b), 15, 17, 12, 19; Constitution of India - Article 136; Code of Criminal Procedure
AppellantRafia Sultana D/O Iqbal Ahemed Khan
RespondentMohd. Osman S/O Mohd. Ismail and ors.
Advocates:Shri G.R. Syed, Adv.
Cases ReferredBabu Ram Gupta v. Sudhir Bhasin
Excerpt:
[s.s. shinde, j.] maharashtra employees of private schools (conditions of service) regulation act, 1977 - section 9 -- this contempt petition alleges contempt /willful disobedience of the order passed by this court in writ petition no. 2177/2009 on 12th november, 2009. this contempt petition was heard by this court on 15.6.2011. ismail - alleged contemnor and he is brought before this court. this court was constrained to direct the superintendent of police, parbhani to continue search of the respondent/alleged  contemnor and produce him before this court. no person can defy the court's order. a petitioner who complains breach of the court's order must allege deliberate or contumacious disobedience of the court's order." the supreme court held the tenant guilty of contempt. the.....1. this contempt petition alleges contempt /willful disobedience of the order passed by this court in writ petition no. 2177/2009 on 12th november, 2009. in para 3 of the said order, the undertaking given by the alleged contemnor, mohmmad osman mohmmad ismail is recorded by this court. 2. the petitioner herein was appointed on 16th june, 1993 as assistant teacher in madarse aamena urdu primary school , a primary school run by the respondent no.2 herein. it is the case of the petitioner that she was subsequently promoted as head mistress. it is further case of the petitioner that on 20th november, 2007, all of a sudden, the respondent no.1 issued letter to the petitioner and informed that, as per the resolution of the society passed on 19th november, 2007, she was reduced in rank from the.....
Judgment:

1. This contempt petition alleges contempt /willful disobedience of the order passed by this Court in Writ Petition no. 2177/2009 on 12th November, 2009. In para 3 of the said order, the undertaking given by the alleged contemnor, Mohmmad Osman Mohmmad Ismail is recorded by this Court.

2. The petitioner herein was appointed on 16th June, 1993 as Assistant Teacher in Madarse Aamena Urdu Primary School , a primary school run by the respondent No.2 herein. It is the case of the petitioner that she was subsequently promoted as Head Mistress. It is further case of the petitioner that on 20th November, 2007, all of a sudden, the respondent No.1 issued letter to the petitioner and informed that, as per the resolution of the society passed on 19th November, 2007, she was reduced in rank from the post of Head Mistress to the post of Assistant Teacher and, petitioner was directed to hand over the charge of post of Headmaster to the respondent No.3. On 11th February, 2007, the petitioner filed appeal u/s 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, referred to as "MEPS Act"), before the School Tribunal at Latur. The School Tribunal dismissed the said appeal. Aggrieved by said judgment and order, the petitioner filed Writ Petition No. 4627/2008 before this Court. By order dated 08.09.2008, this Court was pleased to allow the said writ petition and remanded the matter back to the School Tribunal, Latur. After remand, the School Tribunal, Latur allowed the appeal filed by the petitioner herein on 18.2.2009 and directed the respondents No.1 and 2 to reinstate the petitioner herein i.e. appellant therein, on the post of Head Mistress with continuity of service from 20.11.2007.

3. Being aggrieved by the judgment and order passed by the School Tribunal, Latur in Appeal No.75/2007, the respondents NO.1 and 2 herein preferred Writ Petition No.2177 of 2009 before this Court. This Court on 12th November, 2009 issued Rule and continued the interim relief in terms of prayer clause `C' of the Petition, which was granted earlier. While hearing the above mentioned writ petition, the grievance was made by the respondent No.4 in the writ petition i.e. petitioner herein, that she is not being paid the salary of Assistant Teacher also. This Court in para 3 of the order passed in Writ Petition No.2177 of 2009 recorded the statement of the Advocate appearing for the alleged contemnor. Para 3 of the said order reads, thus: "3. Grievance is made by learned Counsel for respondent NO.4 that she is not being paid salary as Assistant Teacher also. Mr. Dhorde, learned Counsel for the petitioner states that the unpaid amount of salary would be disbursed within six weeks from today and the management will continue to pay to respondent No.4 salary admissible to the post of Assistant teacher."

4. This contempt petition has been filed by the petitioner since the alleged contemnor respondent No.1, who is also head of respondent No.2, did not comply with the undertaking given before the learned Single Judge of this Court through his Advocate. The salary of the petitioner remained unpaid. Therefore, this contempt petition has been filed.

5. When this contempt petition was heard on 15th December, 2010, this Court issued notices to the respondents No.1 and 2, which was made returnable on 9th February, 2011. Since the service of notice was awaited, the matter was adjourned to 17th February, 2011. On 17.02.2011, this Court heard the learned Counsel for the respective parties and passed following order : "The respondent's Advocate sought adjournment. Adjournment granted as a last chance. The respondents shall file affidavit in respect of compliance of the order3. Stand over to 4th March, 2011." In spite of this order, no affidavit-in- reply was filed by the respondents till 4th March, 2011. The affidavit on behalf of respondent nos. 1 and 2 came to be filed on 7th March, 2011.

6. From careful reading of the said affidavit, the sum and substance of the contention of the alleged contemnor appears to be that due to unavailability of the necessary record, and since the record was with the petitioner, he could not take steps to submit unpaid salary bills of the petitioner to the Education officer (Primary), Zilla Parishad, Nanded.

7. In reply to the affidavit filed by the alleged contemnor, the petitioner has filed rejoinder affidavit on 6th April, 2011. On 4th May, 2011, the matter was taken up for hearing by this Court, on said date this Court directed the respondents No.1 and 2 to remain present on the next date of hearing. Thereafter, presence of the respondent nos. 1 and 2 was never dispensed with. On 15th June, 2011, the matter was again listed for hearing, affidavit on behalf of respondents No.1 and 2 was tendered across the Bar, and said was taken on record. It was stated in para No.1 of the said affidavit that the alleged contemnor will submit bills regarding unpaid salary of the petitioner within three days from 15.6.2011 to the respondent No.4 Education Officer (Primary), Zilla Parishad, Nanded and he will take necessary steps to get the said amount disbursed by Respondent No.4 on or before 24.6.2011 and in the event the said amount is not disbursed before 24.6.2011, he will deposit the said amount within one week from 24.6.2011 in this Court. After perusal of the said affidavit dated 15th June, 2011, this Court by speaking order adjourned hearing of the contempt petition to 4th July, 2011. However, it appears that the matter was not taken up for hearing on the said date and therefore, the learned Counsel for the petitioner mentioned the matter on 7th July, 2011 and same was then listed on 11th July, 2011.

8. On 11th July, 2011, this Court heard the learned Counsel appearing for the petitioner and also to the learned Counsel appearing for the respondents No.1 and 2 at length. This Court passed the following order: "1. Heard the learned counsel appearing for the petitioner and learned counsel appearing for respondents No.1 and 2. The learned counsel appearing for respondents No.1 and 2 submits that, in spite of his sincere efforts to impress upon the respondents No.1 and 2 to comply the orders of this Court, they are not listening him. The learned counsel further submits that, he prays discharge from the matter. He has also sent notice to respondents No.1 and 2 by registered post A.D., copy of which is placed on record 2. This Contempt Petition was heard by this Court on 15.6.2011. The affidavit was filed on behalf of respondents No.1 and 2 by one Mr. Mohammad Osman s/o Mohd. Ismail, stating therein that he will submit the bills regarding unpaid amount of salary to the petitioner within three days from 15.6.2011 to the respondent No.4 - Education Officer (Primary), Zilla Parishad, Nanded and he will take steps to get the said amount disbursed by the respondent No.4 on or before 24.6.2011. It is further stated in para No.2 of the said affidavit that, in the event the said amount is not disbursed before 24.6.2011, he will deposit the said amount within one week from 24.6.2011 in this Court. It is admitted position that, no such amount has been deposited in the registry of this Court. The learned counsel for the petitioner submits that, the bills which are submitted by the respondent to the Education Officer are returned back by the Education Officer with remarks that the bills are not in accordance with the Sixth Pay Commission. 3. This Contempt Petition is filed alleging disobedience of the order passed by the learned Single Judge of this Court on 12.11.2009 in Writ Petition No.2177/2009. After considering the grievance of the petitioner in the said Writ Petition, and after hearing the respondents, this Court, in para No.3 of the order dated 12.11.2009, held: "3. Grievance is made by learned counsel for respondent No.4 that she is not being paid salary as Assistant Teacher also. Mr. Dhorde, learned counsel for the petitioner states that the unpaid amount of salary would be disbursed within six weeks from today and the management will continue to pay to respondent No.4 salary admissible to the post of Assistant Teacher." 4. In spite of assurance given to this Court in aforesaid Writ Petition by the respondents No.1 and 2 that the unpaid amount of salary would be disbursed within six weeks to the petitioners from the date of passing of the order by the learned Single Judge on 12.11.2009, no amount towards unpaid salary was disbursed and that gave rise to filing this Contempt Petition. As stated earlier, this Contempt Petition was heard by this Court on 15.6.2011 when the respondent No.1 filed affidavit on behalf of respondents No.1 and 2 on oath that in case no unpaid salary is paid to the petitioner before 24.6.2011 by the Education Officer, he will deposit the amount in the registry of this Court within a week from 24.6.2011. As stated earlier, the respondents No.1 and 2 have not complied the statement made before this Court in the month of November 2009 or they have not complied the assurance given to this Court by filing affidavit. Hence, this is a case of aggravated contempt. The respondent Nos.1 and 2 have chosen to remain absent. Issue non-bailable-warrant to the respondents No.1 and 2 returnable on 27th July 2011. The Superintendent of Police, Parbhani to see that the non- bailable warrant issued by this Court is executed on the respondents No.1 and 2 and they are produced before this Court on 27th July 2011 at 10.30 a.m. by the concerned Police Station Officer. 5. However, it will be open for the respondents No.1 and 2 to file appropriate application, in case they deposit entire amount towards unpaid salary to the th petitioner on or before 15 July 2011, to apply for dispensing with their presence or for recalling the order of issuance of non-bailable warrant if the said warrant is not already executed on them." By order dated 11th July, 2011, the Superintendent of Police, Parbhani was directed to execute non bailable warrant on the alleged contemnor and produce him before this Court. The alleged contemnor chose to remain absent on 11th July, 2011 and, therefore, this Court was constrained to issue non bailable warrants against the respondent nos.1 and 2. There was also non compliance of the affidavit given by the alleged contemnor on 15th June, 2011 and the Advocate for the contemnor made a statement before this Court that in spite of his sincere efforts to impress upon the alleged contemnor to comply with the orders of this Court, the alleged contemnor is not listening to him. The learned Advocate appearing for the alleged contemnor also prayed for discharge and also made a statement that notice has been sent to the alleged contemnor by Regd. Post A.D. for such discharge from the matter.

9. In the order dated 11th July, 2011 itself, direction was given to the Superintendent of Police to produce the respondent nos.1 and 2 i.e. alleged contemnor, on 27th July, 2011 at 10.30 a.m. In pursuance to the said order, it appears that the Superintendent of Police made sincere efforts to comply the order/direction of execution of non bailable warrant on the alleged contemnor. However, according to the Superintendent of Police, Parbhani, the alleged contemnor was absconding and is not traceable. The Superintendent of Police, Parbhani Smt. Maithali Jha, filed detailed affidavit on 5th August, 2011. In para 4 of the said affidavit, it is stated that she had taken steps for compliance of the order passed by this Court on 11.07.2011. She formed two squads consisting of Police Inspector, Police Sub Inspector and other ten police personal and specific directions were given to the squads established for the purpose of execution of non bailable warrant that they should take all efforts and arrest the respondent No.1 and produce him before this Court. It further appears that the inquiry was made with the nearest relatives of the alleged contemnor on 26.6.2011. However, the police officers could not get any useful information from the nearest relatives. One person namely Sk. Jafar Sk. Chand was also known to the alleged contemnor and he was asked to inform the whereabouts of the alleged contemnor. However, he was not able to tell the whereabouts of the alleged contemnor. It further appears that the police squad collected information of the mobile phone of the alleged contemnor and then they tried to find out the location and whereabouts of the alleged contemnor. They also inquired with the staff of Aamena Urdu Primary School school on 29th July, 2011 and they got some information that the alleged contemnor did contact one of the staff members namely Mr. Abdul Hai from his mobile phone. Then the squad proceeded to find out the location of the alleged contemnor. It further appears that the department has taken all the efforts to trace out the alleged contemnor. However, they could not succeed in their attempt since the alleged contemnor was absconding and was not making himself available to the jurisdiction of this Court. Further time was granted to the Superintendent of Police, Parbhani on 27th July, 2011 till 1st August, 2011. However, further attempt of the police department to trace out the alleged contemnor failed.

10. The Superintendent of Police remained present before this Court on 8th August, 2011. On her request further time was granted and matter was kept on 11th August, 2011. On said date Advocate Mr.P.N. Kalani appeared for the alleged contemnor and tried to submit that, the alleged contemnor is ready to deposit some amount. However, he was unable to tell the whereabouts of the alleged contemnor and he showed total ignorance about the whereabouts of the alleged contemnor.

11. On 25th August, 2011, again the matter was taken up for hearing and time was granted to the Superintendent of Police, Parbhani. From time to time, affidavits and documents are produced on record showing that the police authorities have made sincere efforts to execute non bailable warrant issued by this Court on Mohd. Osman S/o Mohd. Ismail. However, their efforts failed because the respondent alleged contemnor was hiding himself and was not traceable. On 6th September, 2011, the matter was not on Board because on earlier date of hearing, same was adjourned to 9th September, 2011. The learned AGP mentioned the matter and brought to the notice of this Court that, the police department is successful in arresting the respondent No.1 Mohd. Osman s/o Mohd. Ismail - alleged contemnor and he is brought before this Court. On mentioning by the learned AGP and also the Advocate for the petitioner, the matter was taken up at 4.30p.m. Even, the Advocate for the alleged contemnor was present. This Court on 6th September, 2011 passed the following order: "Not on board. Matter is mentioned by learned A.G.P., taken on board. 2. Learned A.G.P. appearing for the State makes a statement that, in pursuant to the orders passed by this Court earlier, respondent No.1 Mohammed Osman s/o Mohd. Ismail is arrested and brought before this Court by the Police Inspector, Crime Branch, Parbhani. 3. This Court on 11-07-2011 issued N.B.W. to respondent No.1 Mohammed Osman s/o Mohd. Ismail which was made returnable on 27-07-2011. The Superintendent of Police, Parbhani was directed to execute the N.B.W. on the said respondent and to produce him before this Court on 27-07-2011. On 27-07-2011 it was reported by the Superintendent of Police, Parbhani that respondent Mohammed Osman s/o Mohd. Ismail is hiding himself and is not traceable. By order dated 27-07-2011 further time was granted to the Superintendent of Police,Parbhani to take appropriate steps to execute the N.B.W. The matter was kept on 01-08-2011. On 01-08-2011 again it was reported by the Superintendent of Police, Parbhani that, in spite of their sincere efforts, they were not able to trace out the respondent. On 01-08-2011 this Court again directed the Superintendent of Police, Parbhani to continue search of the respondent and produce him before this Court on his arrest. The matter was adjourned to 08-08-2011. 4. On 08-8-2011 also, the Superintendent of Police, Parbhani was not able to produce the respondent before this Court. Therefore, further time was granted. Matter was kept on 11-08-2011. Again time was sought by the Superintendent of Police, Parbhani for execution of N.B.W. and for producing the respondent before this Court. However, Superintendent of Police, Parbhani even after sincere efforts could not arrest the respondent, therefore, further time was granted to Superintendent of Police, Parbhani to take further appropriate steps as permissible under rules and report this Court about such steps taken by filing affidavit on the adjourned date. Matter was adjourned to 09-09-2011. 5. Today, learned A.G.P. mentioned the matter and accordingly, the matter is taken on board at 4-30 p.m. Learned A.G.P. submits that, in pursuant to the orders passed by this Court, respondent Mohammed Osman s/o Mohd. Ismail is arrested and he is produced before this Court. Since the Contempt Petition is fixed for hearing on 09-09-2011 and if the respondent - alleged contemnor is left free, in that case, he may not be traceable again. Therefore, in the aforestated background, this Court feel it appropriate that, till the Contempt Petition is heard, the respondent Mohammed Osman s/o Mohd. Ismail is required to be kept in Harsul Jail, Aurangabad. Accordingly, it is ordered that, respondent Mohammed Osman s/o Mohd. Ismail should be kept in Harsul Jail, Aurangabad till 09-09-2011 and he should be produced before this Court on 09-09-2011 at the time of hearing of the Contempt Petition."

12. The matter was taken up for hearing on 9th September, 2011. This Court extensively heard the arguments of the learned Counsel for the alleged contemnor and since Court time was over, the matter remained part-heard and, therefore, it was directed to be listed for further hearing on 12th September, 2011 at 10.30 a.m. i.e. today. The alleged contemnor was directed to be taken back to the Central Prison at Harsool, Aurangabad on 09.09.2011. On query by this Court to the learned Counsel for the alleged contemnor that whether he is ready to give assurance that, if the alleged contemnor is released, in that case, alleged contemnor will make himself available on the next date of hearing. The reply of the learned Advocate for respondent i.e. alleged contemnor was that, he cannot give such assurance. Therefore, this Court directed that the alleged contemnor should be taken back to Central Prison, Harsool, with further direction to produce him before this Court on 12th September, 2011 i.e., today. Accordingly, the alleged contemnor is produced before this Court and he is present in the Court hall.

13. The learned Counsel appearing for the respondent nos.1 and 2 i.e. alleged contemnor, submitted that there are no mitigating circumstances to the respondent nos. 1 and 2 i.e. alleged contemnor. He is ready to deposit the amount within two weeks. The learned Counsel invited my attention to paras 2 and 3 of the affidavit filed by him and submitted that the alleged contemnor has tendered sincere apology. The learned Counsel also invited my attention to paras 6 and 7 of the affidavit filed by the alleged contemnor and submitted that the petitioner did not hand over the charge to respondent No.3 and as a result, necessary documents to prepare salary bills were not available with the alleged contemnor. It is further submitted that the alleged contemnor was under impression that respondent No.3 herein is responsible for preparing the bills. He also invited my attention to para 9 of the affidavit and other documents and the letter addressed to the Education Officer and submitted that, the correspondence placed on record would make it clear that the relevant record / documents were not in possession of the alleged contemnor so as to comply with the undertaking given in the month of November, 2009 and, therefore, he could not comply with the said undertaking. The learned Counsel further invited my attention to the fact that some of the record was in the custody of the landlord, the school premises were rented premises and as a result of non payment of rent to the original landlord, some of the record was seized by the landlord and he was not ready to hand over the same to the management. The learned Counsel further submitted that the alleged contemnor is tendering unconditional apology for running away from the process of law. He fairly submitted that, the alleged contemnor is running educational institution and hopefully, he is also educated and it is expected from him that he should not run away from the process of law and the jurisdiction of this Court. It is further submitted that it was bounden duty of the alleged contemnor to submit to the jurisdiction of this Court. It is further submitted that the alleged contemnor, due to stringency of funds, tried to keep away himself from the jurisdiction of this Court. It is further submitted that the police department might have incurred expenses for finding out the alleged contemnor and, therefore, such expenses can be recovered from the alleged contemnor. The learned Counsel for the alleged contemnor fairly submitted that this is a case of contempt. However, he submits that for want of funds and since record was not available for preparing bills, the alleged contemnor could not take further steps.

14. The learned counsel for the alleged contemnor vehemently argued before this Court that, the respondent will deposit the entire unpaid salary amount within two weeks.

15. The learned Counsel for the alleged contemnor submitted that, during the year, 2010, no salary bills were submitted since the record was not available with the alleged contemnor. After the record was made available, he submitted the salary bills of the petitioner in the month of July, 2011. It is further submitted that, the act of the alleged contemnor to run away from the jurisdiction of this Court and to go in some other State cannot be countenanced. However, there was no intention as such on the part of the alleged contemnor and he left the State to collect funds to be deposited towards arrears of petitioner's salary. It is further submitted that there was no intention on the part of the alleged contemnor to harass the petitioner. He had knowledge that he has to submit bills and salary amount will have to be paid to the petitioner. The learned counsel further submits that the alleged contemnor is not having previous conviction in any crime and he has also submitted unconditional apology by filing affidavit as also orally through Counsel. It is further submitted that the alleged contemnor appealing to the mercy jurisdiction of this Court. The learned Counsel, therefore, would submit that, the notice may be discharged and contempt proceedings may be dropped. At the cost of repetition, he submits that the alleged contemnor is ready to deposit the amount towards arrears of unpaid salary of the petitioner within two weeks. However, he fairly submits that he cannot assure this Court that if the alleged contemnor is released, he will be available to the further proceedings and will subject to the jurisdiction of this Court and therefore, during that period of two weeks, he may be kept in jail as he is already directed to be kept in Central Jail, Harsool.

16. The learned Counsel for the petitioner invited my attention to the order dated 12th November, 2009 passed by this Court in Writ Petition No.2177 of 2009 and in particular, para 3 of the said order. He submits that the alleged contemnor - respondent No.1 has committed breach of the undertaking given to this Court through his Counsel in two ways. Firstly, he did not deposit the unpaid amount of salary within six weeks as undertaken by him and further, the management did not continue to pay the salary to the petitioner as admissible to the post of Assistant Teacher.

17. It is further submitted that in the present contempt petition, the notices were issued on 15.12.2010, same were served upon the alleged contemnor, even then the salary for the month of January, 2011 to March, 2011 has not been paid to the petitioner. The learned counsel invited my attention to the Rejoinder filed by the petitioner at page 89 of the compilation and submitted that in spite of notice issued in this contempt petition, the respondent/alleged contemnor has given threats to the petitioner, that she should withdraw the contempt petition otherwise she would face serious consequences. It is further submitted that the affidavit was filed by respondent/alleged contemnor on 15.06.2011 and a statement was made in it that all the arrears of the petitioner's unpaid salary will be paid and bills will be forwarded to the Education Officer (Primary), Zilla Parishad, Nanded. However, the said bills were not submitted as undertaken and for the first time on 2nd July, 2011, the said bills are submitted to the Education Officer. Therefore, according to the counsel for the petitioner, it also amounts to breach of undertaking given to this Court. It is further submitted that, in the said affidavit further assurance was given to this Court that, in case the Education Officer (Primary), Zilla Parishad, Nanded fails to clear the arrears of salary of the petitioner, in that case, the alleged contemnor will deposit the amount towards arrears of unpaid salary. However, the said undertaking has not been complied with. Learned counsel further submits that the Hon'ble Supreme Court in the case of "Rama Narang V/s Ramesh Narang and another" reported in "A.I.R. 2007 S.C. 2029" has taken a view that if there is willful breach of undertaking given to the Court, the said amounts to contempt and wilful disobedience of the order passed by the Court. The learned Counsel also pressed in to service the reported judgment of the Supreme Court in the case of "Pallav Sheth V/s Custodian" reported at " 2001 DGLS (Soft) 980" and submitted that the provisions of Section 20 of the Contempt of Courts Act will not come in the way of the petitioner, since the contempt filed by the petitioner is well within limitation. Therefore, learned counsel for the petitioner would submit that this Court may punish the alleged contemnor for committing contempt and willful disobedience of the order passed by this Court.

18. The Counsel for the Education Officer (Primary), Zilla Parishad submits that he is taking sincere efforts to get the amount sanctioned and paid to the petitioner. He submits that he has already submitted the salary bills of the petitioner to the Director of Education, (Primary) Maharashtra State, Pune on 4th August, 2011 and thereafter, the reminders have also been sent to the concerned Authority on 20th August and 9th September, 2011. Therefore, the learned counsel for the Education Officer would submit that he is taking sincere efforts to get the amount sanctioned from the higher authorities so that the payment should be made to the petitioner.

19. I have given due consideration to the submissions of the Counsel appearing for the respective parties. Original papers of Writ Petition no. 2177/2009 were called and same are made available by Registry for perusal. The counsel for the respondent/alleged contemnor was heard at length at 9th September, 2011. Thereafter today also he has advanced his submission at length.

20. The respondent no.1/alleged contemnor is added as respondent no.1 in his personal capacity and as a respondent no.2 in the capacity of President of respondent no.2- Institution. From perusal of the original proceedings in Writ Petition no. 2177/2009, it appears that the respondent/alleged contemnor did file the said Writ Petition aggrieved by the judgment and order of the School Tribunal, Latur. In said Writ Petition this Court was pleased to issue Rule and interim relief in terms of prayer clause `C'. However, so far as the salary of the petitioner for the post of Assistant Teacher is concerned, same was not paid to the petitioner. Therefore, at the time of hearing of the said Writ Petition, the grievance was made in respect of said unpaid salary. In the above background this Court held in paragraph no.3 of the order dated 12.09.2009 as under : "Mr. Dhorde, learned Counsel for the petitioner states that the unpaid amount of salary would be disbursed within six weeks from today and the management will continue to pay to respondent No.4 salary admissible to the post of Assistant teacher."

21. Therefore, reading para no.3 of the order of this Court in the said Writ Petition, would make it abundantly clear that the respondent/alleged contemnor had given solemn undertaking to this Court through his counsel Mr. Dhorde that unpaid amount of salary of the petitioner will be disbursed within six weeks from 12th November, 2009 to the petitioner, who was respondent no.4 in the Writ Petition and also the Management will continue to pay salary of respondent no.4 petitioner herein. It is admitted position that in spite of solemn undertaking given to this Court the alleged contemnor has not paid the amount of unpaid salary to the petitioner within six weeks from 12.11.2009, or till today, and also the Management has been failed to pay the regular salary to the petitioner. Therefore, there is clear breach of undertaking given to this Court by the alleged contemnor. It is also not in dispute that the alleged contemnor did not file an application either for extension of time or modification of the said order, therefore, the net position emerges that the observations of this Court in para 3 of the order dated 12.11.2009 in Writ Petition no. 2177/2009 on the basis of solemn undertaking are still in force. Therefore, the stand taken by the alleged contemnor that record was not available, and therefore, he could not prepare the salary bills is not part of the undertaking. From reading of the affidavit in reply filed by the alleged contemnor, bone of contention appears to be that necessary record was not available for preparation of salary bills of the petitioner, and therefore, the respondent/alleged contemnor could not submit salary bills to the Education Officer. Further stand taken in the affidavit in reply appears to be that, the alleged contemnor was under bonafide impression that respondent no.3 is responsible for unpaid amount of salary. Such stand taken by the respondent/contemnor is after thought. The undertaking given by the alleged contemnor does not mention preparation of any salary bills and submitting it to the Education Officer and get amount sanctioned and then to disburse the said amount to the petitioner. The stand taken by the respondent that the record was not available and therefore, he could not prepare the salary bills and submit to the Education Officer cannot be countenanced. It was open for the contemnor to file application in pending Writ petition either for modification of the order or extension of time. However, admittedly, no such application has been filed by the contemnor, the order dated 12.11.2009 passed by this Court in Writ Petition no. 2177/2009 is very much in force and therefore, there is clear willful disobedience of undertaking given to this court by the respondent/alleged contemnor.

22. The second point which requires to be considered in this Contempt Petition is, affidavit filed by the alleged contemnor on 15th June, 2011 in the present Contempt Proceedings. The said affidavit filed by respondent/alleged contemnor is at page 94 of the compilation of the Contempt Petition which reads thus :- "I,Mohammad Osman S/o. Mohd. Ismail, Age : 56 years, Occ : Nil, R/o C/o Rahim Bhai Engineer, Parbhani, Tq. & Dist. Parbhani, the President of Madarse Noorul Uloom Education Society, Nanded do hereby state on solemn affirmation as under:-

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

2. I say that, in the event the said amount is not disbursed before 24.06.2011, I will deposit the said amount within one week from 24.06.2011 in this Hon'ble High Court."

23. From perusal of the para no.1 of the said affidavit reproduced hereinabove, there is solemn undertaking given by the respondent that, he will submit the bills regarding unpaid amount of salary within three days from the date of filing of the affidavit i.e. 15.06.2011, to respondent no.4-Education Officer (Primary), Zilla Parishad, Nanded. It is stated in para no.1 that, he will take steps to get the amount disbursed on or before 24.06.2011 and in the event the said amount is not disbursed before 24.06.2011, he will deposit the said amount within one week from 24.06.2011 in this Court.

24. Admittedly till the date the undertaking given to this Court by filing affidavit on oath has not been complied with. It is also relevant to mention that first time respondent no.1 submitted bills towards unpaid salary of the petitioner to the Education Officer on 2nd July, 2011 i.e. after 24.06.2011. As stated earlier no amount towards unpaid salary or further salary is paid to the petitioner till this date.

25. This Court on 6th September, 2011 has passed the detailed order indicating the conduct of the contemnor in running away from the jurisdiction of this Court and not making available himself in this Contempt Proceeding on various dates fixed for hearing. The order dated 6th September, 2011 is already reproduced hereinabove in para 11 of this Judgment. The conduct of the respondent nos. 1 and 2/alleged contemnor is totally unreliable, untrustworthy and unworthy, therefore, he does not deserve any leniency.

26. Therefore, taking into consideration the clear breach of undertaking as referred above, this Court was not left with any option but to decide this Contempt Petition in presence of the alleged contemnor/respondent. Therefore, the non-bailable warrant was issued. However, the alleged contemnor absconded and did not make available himself to the jurisdiction of this Court. The matter was fixed for number of dates and report is received from the Superintendent of Police, Parbhani that the respondent/alleged contemnor is hiding himself and is not traceable. Even Superintendent of Police, Parbhani was required to be summoned by this Court and she remained present before this Court. However, alleged contemnor not only absconded but went to another State. Therefore, when he was produced on 6th September, 2011, this Court was not sure as to whether the alleged contemnor if released will make himself available for further proceedings.

27. This Court in this contempt petition is examining the contentions raised by the petitioners that solemn undertaking given before this Court is breached/ violated by the alleged contemnor/ respondent and if this Court allows to violate/ breach the undertakings and directions, in that case, the public at large would lose faith in the judicial system and sanctity of giving such undertakings and passing the orders on the basis of such undertakings would be of no avail.

28. The Constitutional Bench of the Supreme Court, in case of Supreme Court Bar Association v. Union of India & anr. [ (1998) 4 SCC 409 ], in para 42 held : "42. The contempt of court is a special jurisdiction to be exercised sparingly and with caution whenever an act adversely affects the administration of justice or which tends to impede its course or tends to shake public confidence in the judicial institutions. This jurisdiction may also be exercised when the act complained of adversely affects the majesty of law or dignity of the courts. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law. It is an unusual type of jurisdiction combining "the jury, the judge and the hangman" and it is so because the court is not adjudicating upon any claim between litigating parties. This jurisdiction is not exercised to protect the dignity of an individual judge but to protect the administration of justice from being maligned. In the general interest of the community it is imperative that the authority of courts should not be imperilled and there should be no unjustifiable interference in the administration of justice. It is a matter between the court and the contemnor and third parties cannot intervene. It is exercised in a summary manner in aid of the administration of justice, the majesty of law and the dignity of the courts. No such act can be permitted which may have the tendency to shake the public confidence in the fairness and impartiality of the administration of justice."

29. Therefore, if the majesty of the law is to be upheld and if the confidence of the common people in the judiciary is to be maintained, in that case, the person who gives undertaking before this Court and subsequently does not follow the said undertaking even after one and half year from giving such undertaking, deserves to be punished. Not only this but in present Contempt Petition the respondent has filed affidavit on 15.06.2011 thereby stating on oath that, he will submit unpaid salary bills of the petitioner to the Education Officer within three days and he will take steps to get the said amount disbursed by the respondent no.4 on or before 24.06.2011 and in case, the amount is not disbursed before 24.06.2011, he will deposit the said amount within one week from 24.06.2011 in this Court.

30. In the present contempt proceedings, this Court is mainly concerned with maintaining the majesty of law and public confidence in judiciary. If the act of the respondent/ alleged contemnor to file undertaking and then to breach it and further to file affidavits before this Court, thereby giving assurance to disburse the unpaid salary within one week from 24.06.2011, to the petitioner, and not complying with the said statement on oath till date, if tolerated and allowed to continue, certainly the public confidence in the judicial institution will be shaken and the litigants will tempt to violate/ breach the orders/ undertaking given before the Court.

31. In the present case, there is breach of undertaking given by the respondent-alleged contemnor through his Counsel on 12th November, 2009 in Writ Petition No. 2177/2009. The alleged contemnor did not pay unpaid amount of salary or disbursed the same within six weeks to the petitioner from 12th November, 2009. Secondly, the assurance given that the Management will continue to pay the respondent no.4 i.e. the present petitioner the salary admissible to the post of assistant teacher is also not complied with. Admittedly, as on today, the undertaking given to this Court on 12th November, 2009 in Writ Petition no. 2177/2009 as reflected in para no.3 of the said order, has not been complied with by the respondent/alleged contemnor.

32. Secondly, the undertaking given to this Court by way of affidavit on 15th June, 2011 has not been complied with by the allegedly contemnor/ respondent. Thirdly, the respondent/alleged contemnor, after issuance of non-bailable warrant on 11th August, 2011 absconded and did not make available for himself and ran away from the process of law and ultimately, did not subject to jurisdiction of this Court for the various dates fixed for hearing from 11.07.2011 to 06.09.2011. This Court was constrained to direct the Superintendent of Police, Parbhani to continue search of the respondent/alleged contemnor and produce him before this Court. Therefore, this Court is of the considered view that, this is a case of clear breach and willful disobedience of undertakings given to this Court and further violation of the orders passed by this Court on the basis of such undertakings given by the respondent/ alleged contemnor before this Court. The situation is aggravated by the respondent/ alleged contemnor himself by not making himself available for various dates fixed for hearing of the Writ Petition. The respondent has shown total disrespect and disregard to the judicial process and also to the process of law.

33. The respondent/alleged contemnor had tried to protract and prolong hearing of the contempt petition by not making available himself when the Petition was fixed for hearing. He has not obeyed the orders passed by this Court, rather tried to prolong the hearing of the Contempt Petition. The said conduct of the alleged contemnor/ respondent can not be countenanced and same deserves to be dealt with rigorously.

34. However, the case in hand falls under Civil Contempt as defined under Section 2(b) of the Contempt of Courts Act, which reads thus : Section 2(b) : "civil contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court;

35. The reading of Section 2(b) of the Contempt of Courts Act, 1971 makes it clear that civil contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to a Court. The wilful disobedience has not been defined in the Contempt of Courts Act. The Hon'ble Supreme Court in the case of "All India Anna Dravida Munnetra Kazhagam V/s L.K. Tripathi" reported in " (2009) 5 S.C.C. 417" from para 53 to 64 had discussed about what is mean by `wilful disobedience.' The Hon'ble Supreme Court has referred to various earlier judgments and dictionary meaning and explained about the wilful disobedience. The paragraph nos. 53 to 64 of the said judgment is reproduced herein below : "53. We have considered the submissions/arguments of learned counsel for the parties. Section 2(b) and (c) of the 1971 Act which define civil and criminal contempt read as under: "2(b) `civil contempt' means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court; (c) `criminal contempt' means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which-

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

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner,"

54. An analysis of Section 2(b) of the 1971 Act shows that willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court constitutes civil contempt. If this definition is read with Article 129 of the Constitution of India, it becomes clear that being a Court of record, this Court can punish a person for civil contempt if it is found that he has willfully disobeyed any judgment etc. or violated undertaking given to the Court.

55. The term `wilful' (willfull) has not been defined in the 1971 Act. Therefore, it will be useful to notice dictionary meaning of the said term. As per The New Oxford Illustrated Dictionary (1980 Edition),the term "wilful" means "asserting or disposed to assert one's own will against instruction, persuasion, etc.; obstinately self- willed; deliberate, intentional, showing perversity or self-will".

56. According to Black's Law Dictionary, (8th Edition)- "Wilful" means "[v]oluntary and intentional, but not necessarily malicious" and "wilfulness" means "1. The fact or quality of acting purposely or by design; deliberateness;intention; willfulness does not necessarily imply malice, but it involves more than just knowledge. 2. The voluntary, intentional violation or disregard of a known legal duty."

57. As per Stroud's Judicial Dictionary, Vol.5 (4th Edition), "wilful disobedience" means; "(1) The willful disobedience of a SEAMAN or apprentice is `wilfully disobeying any lawful command DURING engagement': `There may be many cases in which DESERTION, or ABSENCE without leave, would not amount to willful disobedience, and in these cases the seaman would only be liable to the lesser penalty. Where, however, the seaman deserts or is intentionally absent without leave after the time at which he has been lawfully ordered to be on board, his desertion or absence may amount to "wilful disobedience," and, consequently, that he would be liable to imprisonment. The words "during the engagement" seem to suggest that the contract between the employer and the employed should be taken into account, and that if, having regard to that contract, the order was one which the employed was bound to obey, his disobedience might be dealt with under clause (d)';"

58. In Shorter Oxford English Dictionary, the term "willful" has been defined as:

"1. Asserting or disposed to assert one's own will against persuasion, instruction, or command; governed by will without regard to reason; obstinately self-willed or perverse.

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

3. proceeding from the will; done or suffered of one's own free will or choice; voluntary - 1687.

4. Done on purpose or wittingly; purposed, deliberate, intentional. (Chiefly, now always, in bad sense of a blameworthy action; freq. implying `perverse, obstinate'.)"

59.In Ashok Paper Kamgar Union v. Dharam Godha and others[(2003) 11 SCC 1], this Court was called upon to decide whether the respondents i.e. Shri Dharam Godha, Chairman, Nouveau Capital & Finance Ltd.; Shri S. Jagadeesan, Joint Secretary, Ministry of Industry, Department of Industrial Policy and Promotion, Government of India; Shri G.S. Kang, Secretary, Department of Industries, Government of Bihar; Shri S.N. Khan, Chairman and Managing Director and Shri R.P. Chabra, Chief General Manager, Rehabilitation Finance Department, Industrial Development Bank of India were guilty of contempt.

60. The facts of Dharam Godha case were that by an order dated 8.7.1996, this Court approved the proposal made by the Government of India for take over of M/s. Ashok Paper Mills by M/s. Nouveau Capital and Finance Ltd. and disposed of the writ petition filed by Ashok Paper Kamgar Union. Later on, by an order dated 1.5.1997, all concerned were directed to participate in implementation of the scheme and the Finance Secretary, Ministry of Finance, Government of India was directed to ensure that the legal requirements are fulfilled and the mill is rehabilitated and both Phases I and II of the Scheme are given effect to. Two more orders were passed by the court in the matter on 31.7.2000 and 1.9.2000. The petitioner alleged that the respondents have failed to comply with the directions given by the Court for implementation of the Scheme and, therefore, they are liable for contempt of court.

61. This court in Dharam Godha took cognizance of the fact that M/s. Nouveau Capital & Finance Ltd., had failed to pay the consideration of Rs.6 crores; that IDBI had disbursed term loan of Rs.15 crores towards Phase I of revival Scheme; that the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India in cooperation with the Department of Banking obtained sanction for additional term loan of Rs.11 crores from IDBI and a working capital of Rs.9.25 crores from United Bank of India; that NCFL had invested Rs.20 crores towards promotion contribution which was much more than amount contemplated in Phase I of the Scheme and held that respondents cannot be held guilty of contempt.

62. Para 17 of the judgment which contains discussion on the subject reads as under: (Dharam Godha case, SCC pp.14-15) "17. Section 2(b) of the Contempt of Courts Act defines `civil contempt'; and it means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of undertaking given to a court. `Wilful' means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say, with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore, in order to constitute contempt the order of the court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extraordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case. The facts mentioned above show that none of the respondents to the petition can be held to be directly responsible if the Scheme which had been formulated by the Government of India on 28-6-1996 and had been approved by this Court by the order dated 8-7-1996 could not be implemented in letter and spirit as many factors have contributed to the same. The reasons given for non-inclusion of Shri Umadhar Prasad Singh in signing of the agreement appear to be quite plausible. NCFL has undoubtedly not discharged its liability of making payment of its entire liability of Rs.6 crores. However, it has come out with a case that some additional expenditure has been incurred in running the unit. It is not possible to get the complete financial picture only on the basis of the affidavits filed in the present petition. On the material on record, therefore, it is not possible to hold that the charge of having committed contempt of court on account of alleged non- compliance with the orders passed by this Court on 8-7-1996, 1-5-1997 and 31-7-2000 has been established against any one of the respondents." (emphasis added).

63. In DDA v. Skipper Construction [(1995) 3 SCC 507], this Court highlighted the distinction between the civil and criminal contempt in the following words:- (SCC p-517, paras 43-44) "43. Civil contempt is defined under Section 2(b) of the Act. Thus, any wilful disobedience to the order of the court to do or abstain from doing any act is prima facie a civil contempt. Civil contempt arises where the power of the court is invoked and exercised to enforce obedience to orders of the court. 44. On the contrary, criminal contempts are criminal in nature. It may include outrages on the Judges in open court, defiant disobedience to the Judges in court, libels on Judges or courts or interfering with the courts of justice or any act which tends to prejudice the courts of justice."

64.In Kapildeo Prasad Sah and others v. State of Bihar and others[(1999) 7 SCC 569], the Court outlined the object of its contempt jurisdiction in the following words: (SCC pp-573-74, paras 9 & 11) "9. For holding the respondents to have committed contempt, civil contempt at that, it has to be shown that there has been wilful disobedience of the judgment or order of the court. Power to punish for contempt is to be resorted to when there is clear violation of the court's order. Since notice of contempt and punishment for contempt is of far-reaching consequence, these powers should be invoked only when a clear case of wilful disobedience of the court's order has been made out. Whether disobedience is wilful in a particular case depends on the facts and circumstances of that case. Judicial orders are to be properly understood and complied with. Even negligence and carelessness can amount to disobedience particularly when the attention of the person is drawn to the court's orders and its implications. Disobedience of the court's order strikes at the very root of the rule of law on which our system of governance is based. Power to punish for contempt is necessary for the maintenance of effective legal system. It is exercised to prevent perversion of the course of justice. 11. No person can defy the court's order. Wilful would exclude casual, accidental, bona fide or unintentional acts or genuine inability to comply with the terms of the order. A petitioner who complains breach of the court's order must allege deliberate or contumacious disobedience of the court's order."

36. The Supreme Court in the case of "Rama Narang (5) V/s Ramesh Narang and another" reported in "(2009) 16 S.C.C. 126", after critical analysis of the decided cases of the Supreme Court held that, the wilful breach of an undertaking given to the court amounts to contempt of court under Section 2(b) of the Contempt of Courts Act, 1971. The dictionary meaning of the word undertaking and order, the earlier judgments of the Supreme Court on subject are discussed from para no. 35 to 47 of the said judgment. The paragraph nos. 35 to 47 of the said judgment are reproduced herein below : "35. Black's Law Dictionary, 5th Edn. defines "undertaking" in the following words: "A Promise, engagement, or stipulation. An engagement by one of the parties to a contract to the other, as distinguished from the mutual engagement of the parties to each other. It does not necessarily imply a consideration. In a somewhat special sense, a promise given in the course of legal proceedings by a party or his counsel, generally as a condition to obtaining some concession from the Court or the opposite party. A promise or security in any form." 36. Osborn's Concise Law Dictionary, 10th Edn. defines "undertaking" in the following words: "A promise, especially a promise in the course of legal proceedings by a party or his counsel, which may be enforced by attachment or otherwise in the same manner as an injunction."

37. In M. v. Home Office (1992) 4 All ER 97 at p.132g, the expression "undertaking" has been dealt with in the following manner: "[I]f a party, or solicitors or counsel on his behalf, so act as to convey to the court the firm conviction that an undertaking is being given, that party will be bound and it will be no answer that he did not think that he was giving it or that he was misunderstood."

38. In re Hudson [1966] Ch. 209 the English Court observed as under:(All ER pp.112 I-113 A) "An undertaking to the court confers no personal right or remedy on any other party. The only sanctions for breach are imprisonment for contempt, sequestration or a fine."

39. Similarly, in Shoreham-by-Sea U.D.C. v. Dolphin Canadian Proteins Ltd., (1972) 71 L.G.R. 261, the Court observed as under: "Failure to comply with an undertaking to abate a nuisance may be visited with a substantial fine."

40. The Division Bench of the Bombay High Court in Bajranglal Gangadhar Khemka v. Kapurchand Ltd. reported in AIR 1950 Bombay 336 had an occasion to deal with similar facts. Chagla, C.J., speaking for the Court, observed as under: (AIR p.337, para 4) "4. We are not prepared to accept a position which seems to us contrary to the long practice that has been established in this Court, and, apparently, also in England. There is no reason why even in a consent decree a party may not give an undertaking to the Court. Although the Court may be bound to record a compromise, still, when the Court passes a decree, it puts its imprimatur upon those terms and makes the terms a rule of the Court; and it would be open to the Court, before it did so, to accept an undertaking given by a party to the Court. Therefore, there is nothing contrary to any provision of the law whereby an undertaking cannot be given by a party to the Court in the consent decree, which undertaking can be enforced by proper committal proceedings."

41.In Noorali Babul Thanewala v. K.M.M. Shettyreported in (1990) 1 SCC 259, a tenant committed breach of undertaking given by him to the Supreme Court to deliver vacant possession of certain premises. The Supreme Court held the tenant guilty of contempt. Hon'ble V. Ramaswami, J., delivering the judgment observed: (SCC pp-265-66 para 11)"11. When a court accepts an undertaking given by one of the parties and passes orders based on such undertaking, the order amounts in substance to an injunction restraining that party from acting in breach thereof. The breach of an undertaking given to the Court by or on behalf of a party to a civil proceedings is, therefore, regarded as tantamount to a breach of injunction although the remedies were not always identical. For the purpose of enforcing an undertaking that undertaking is treated as an order so that an undertaking, if broken, would involve the same consequences on the persons breaking that undertaking as would their disobedience to an order for an injunction. It is settled law that breach of an injunction or breach of an undertaking given to a court by a person in a civil proceeding on the faith of which the court sanctions a particular course of action is misconduct amounting to contempt."

42.In Mohd. Aslam v. Union of Indiareported in (1994) 6 SCC 442, this Court dealt with the contempt proceedings raising the issues as to the amenability of the State and of its Ministers for failure of obedience to the judicial pronouncements. In this case, the Chief Minister of Uttar Pradesh had made a statement before National Integration Council that the Government of Uttar Pradesh will hold itself fully responsible for the protection of the Ram Janma Bhumi- Babri Masjid structures. Upon this statement of the Chief Minister, this Court had passed an order. However, in the contempt proceedings it was alleged that the orders passed on the basis of the statements made have been deliberately and wilfully flouted and disobeyed by the State of Uttar Pradesh. While dealing with the expression "undertaking", this Court observed as under: (SCC p-453, para 22) "The Chief Minister having given a solemn assurance to the National Integration Council and permitted the terms of that assurance to be incorporated as his own undertaking to this court and allowed an order to be passed in those terms cannot absolve himself of the responsibility unless he placed before the Court sufficient material which would justify that he had taken all reasonable steps and precautions to prevent the occurrence."

43.In Rita Markandey v. Surjit Singh Arorareported in (1996) 6 SCC 14, this Court came to the conclusion that even if the parties have not filed an undertaking before the Court, but if the Court is induced to sanction a particular course of action or inaction on the basis of the representation of such a party and the court ultimately finds that the party never intended to act on such representation or such representation was false, even then the party would be guilty of committing contempt of court. The Court observed as under: (SCC p-20, para 12). "12. Law is well settled that if any party gives an undertaking to the Court to vacate the premises from which he is liable to be evicted under the orders of the Court and there is a clear and deliberate breach thereof it amounts to civil contempt but since, in the present case, the respondent did not file any undertaking as envisaged in the order of this Court the question of his being punished for breach thereof does not arise. However, in our considered view even in a case where no such undertaking is given, a party to a litigation may be held liable for such contempt if the Court is induced to sanction a particular course of action or inaction on the basis of the representation of such a party and the Court ultimately finds that the party never intended to act on such representation or such representation was false."

44.In K.C.G. Verghese v. K.T. Rajendranreported in (2003) 2 SCC 492, this Court dealt with the "undertaking" in contempt proceedings arising out of eviction proceedings. This Court held that when at the time of giving the undertaking, the tenant did not indicate that he was in possession of a part of the premises and not the other portion nor was such a stand taken in any of the pleadings before the High Court or rent controller, the order of eviction passed against the tenant is equally binding upon the occupant of the other portion.

45. This Court again had occasion to deal with a case inBank of Baroda v. Sadruddin Hasan Dayareported in (2004) 1 SCC 360. In that case, the Court clearly observed as under:(SCC p-361g). "The wilful breach of an undertaking given to a court amounts to `civil contempt' within the meaning of Section2(b) of the Contempt of Courts Act. The respondents having committed breach of the undertaking given to the Supreme Court in the consent terms they are clearly liable for having committed contempt of court."

46. The respondents placed reliance onBabu Ram Gupta v. Sudhir Bhasinreported in (1980) 3 SCC 47. In this case admittedly no application, affidavit or any undertaking were given by the appellant. Therefore, this case is of no assistance to the respondents. In this case, the Court observed that:(SCC p-53, para 10). "[E]ven the consent order does not incorporate expressly or clearly that any such undertaking had been given either by the appellant or by his lawyer before the Court that he would handover possession of the property to the receiver. In the absence of any express undertaking given by the appellant or any undertaking incorporated in the order impugned, it will be difficult to hold that the appellant wilfully disobeyed or committed breach of such an undertaking". The Court even in this case observed that: (SCC p-53, para 10) "In fact, the reason why a breach of clear undertaking given to the court amounts to contempt of court is that the contemnor by making a false representation to the court obtains a benefit for himself and if he fails to honour the undertaking, he plays a serious fraud on the court itself and thereby obstructs the course of justice and brings into disrepute the judicial institution." (emphasis in original).

47. The critical analysis of the decided cases of this Court clearly leads to the conclusion that wilful breach of an undertaking given to the Court amounts to contempt of court under Section 2(b) of the Act.

" 37. Therefore, viewed from any angle the respondent/ alleged contemnor inspite of undertaking given to this Court on 12th November, 2009 in Writ Petition no. 2177/2009 and also inspite of directions in para no.3 of the order of this Court in said Writ Petition, and also inspite of the undertaking given by way of filing Affidavit on oath on 15th June, 2011 has not disbursed/ paid the unpaid salary of the petitioner. The Management i.e. respondent no.2, did not continue to pay the regular salary to the petitioner as an Assistant Teacher in spite of solemn undertaking given to this Court. Therefore, the alleged contemnor/ respondent has committed breach of undertakings given to this Court and wilfully disobeyed the orders passed by this Court on 12th November, 2009 in Writ Petition no. 2177/2009 and also on 15th June, 2011 in the present Contempt Petition, therefore, the respondent/ alleged contemnor- Mohd. Osman S/o Mohd. Ismail is liable to be punished under the provisions of the Contempt of Courts Act, 1971 and Article 215 of the Constitution of India. His conduct in not making himself available for the process of law and jurisdiction of this Court and absconding, makes him further unworthy, and leads to such situation that, he can not be shown leniency.

38. Though, it is vehemently argued by the counsel for the respondent that, the respondent has tendered unconditional apology in the affidavit in reply filed in this contempt proceedings and also had orally tendered the unconditional apology, in the facts of this case, it is not possible to accept such apology.

39. The Supreme Court in the case of "L.D. Jaikwal V/s State of U.P." reported in "A.I.R. 1984 S.C. 1374" held that, "we are sorry to say we cannot subscribe to the "slap- say-sorry and forget" school of thought in administration of contempt jurisprudence. Saying "sorry" does not make the slapper taken the slap smart less upon the said hypocritical word being uttered. Apology shall not be paper apology and expression of sorrow should come from the heart and not from the pen. For it is one thing to "say" sorry-it is another to "feel" sorry". 40. Therefore, in my opinion, in the facts of this case, no such apology can be accepted. Therefore, at this stage, the learned counsel appearing for the respondent/alleged contemnor is called upon to address this Court on the point of sentence.

41. The learned counsel appearing for the respondent once again submits that the alleged contemnor is praying for mercy jurisdiction of this Court. He further submits that respondent is suffering from blood pressure and the respondent will try to comply with the affidavit filed on 15.06.2011.

42. It is not possible for this Court to accept the submissions of the learned counsel for the respondent. The learned Counsel for the respondent is not sure that if the respondent is left free and in case such amount as assured by him is not deposited within two weeks, in that case respondent will make himself available for compliance of the order of this Court. Therefore, in my considered view in the facts of this case, the respondent who has breached two undertakings and also ran away from the process of law, would not make himself available for complying the orders passed in this Contempt Petition.

43. In case of Pritam Pal v. High Court of Madhya Pradesh, Jabalpur through Registrar [ 1993 Supp (1) SCC 529 ], the Hon'ble Supreme Court held : "The power conferred upon the Supreme Court and the High Court, being Courts of record under Articles 129 and 215 of the Constitution respectively is an inherent power under which it can deal with contempt of itself. The jurisdiction vested is a special one not derived from any other statute but derived only from Articles 129 and 215. Therefore the constitutionally vested right cannot be either abridged, abrogated or cut down, by any legislation including the Contempt of Courts Act. Therefore, the submission of the contemnor that the impugned order is vitiated on the ground of procedural irregularities and that Article 215 is to be read in conjunction with the provisions of Sections 15 and 17 of the Act of 1971, cannot be countenanced. Nor can they be controlled or limited by any statute or by any provision of the Code of Criminal Procedure or any Rules. The caution that has to be observed in exercising this inherent power by summary procedure is that the power should be used sparingly, that the procedure to be followed should be fair and that the contemnor should be made aware of the charge against him and given a reasonable opportunity to defend himself. The Hon'ble Supreme Court further held : "An intention to interfere with the proper administration of justice is not an essential ingredient of the offence of contempt of Court and it is enough if the action complained of is inherently likely so to interfere." The Hon'ble Supreme Court further held in para 60 : "60. The maxim "salus populi suprema lex", that is "the welfare of the people is the supreme law" adequately enunciates the idea of law. This can be achieved only when justice is administered lawfully, judicially, without fear or favour and without being hampered and thwarted, and this cannot be effective unless respect for it is fostered and maintained."

44. Before I pass the appropriate order in respect of sentence to be imposed upon the respondent/alleged contemnor, it will be worthy to refer to the judgment of the Hon'ble Supreme Court in the case of Hira Lal Dixit Vs. State of Uttar Pradesh [ AIR 1954 SC 743 ], where the Supreme Court held, "The summary jurisdiction exercised by superior Courts in punishing contempt of their authority exists for the purpose of preventing interference with the course of justice and for maintaining the authority of law as is administered in the Court and thereby affording protection to public interest in the purity of the administration of justice. This is certainly an extraordinary power which must be sparingly exercised but where the public interest demands it, the Court will not shrink from exercising it and imposing punishment even by way of imprisonment, in cases where a mere fine may not be adequate." Yet, in another case of David Jude v. Hannath Grace Jude & ors., reported in [ (2002) 10 SCC 760 ], the Hon'ble Supreme Court has considered the effect of breach of undertaking and in the facts of that case, the Supreme court found that, accepting mere apology of the alleged contemnor is of no avail.

45. Yet, in another case of J. Vasudevan Vs. T.R. Dhananjaya [ (1995) 6 SCC 249 ], the Hon'ble Supreme Court, in para 14, held: "14. Coming to the mercy jurisdiction, let it be first stated that while awarding sentence on a contemnor the Court does so to uphold the majesty of law, and not with any idea of vindicating the prestige of the Court or to uphold its dignity. It is really to see that unflinching faith of the people in the courts remains intact. But, if the order of even the highest Court of the land is allowed to be wilfully disobeyed and a person found guilty of contempt is let off by remitting sentence on plea of mercy, that would send wrong signals to everybody in the country. It has been a sad experience that due regard is not always shown even to the order of the highest Court of the country. Now, if such orders are disobeyed, the effect would be that people would lose faith in the system of administration of justice and would desist from approaching the Court, by spending time, money and energy to fight their legal battle. If in such a situation mercy is shown, the effect would be that people would not knock the door of the courts to seek justice, but would settle score on the streets, where muscle power and money power would win, and the weak and the meek would suffer. That would be a death-knell to the rule of law and social justice would receive a fatal blow. This Court cannot be a party to it and, harsh though it may look, it is duty-bound to award proper punishment to uphold the rule of law, how so high a person may be. It may be stated, an IAS officer is of no consequence, so far as the sentence is concerned. We would indeed think that if a high officer indulges in an act of contempt, he deserves to be punished more rigorously, so that nobody would take to his head to violate the Court's order. May we also say that a public officer, being a part of the Government, owes higher obligation than an ordinary citizen to advance the cause of public interest, which requires maintenance of rule of law, to protect which contemners are punished."

46. Therefore, I am of the view that in the present case, the ends of justice require that the respondent Mohd. Osman S/o Mohd. Ismail be sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs. 2000/- (Rupees two thousand), in default of payment of fine, he should further undergo simple imprisonment for 15 days. Accordingly, respondent-Mohd. Osman S/o Mohd. Ismail is held guilty of having committed civil contempt and is ordered to suffer imprisonment in terms of Section 12 of the Contempt of Courts Act, 1971 for a period of three months simple imprisonment and to pay a fine of Rs. 2,000/-, in default of payment of fine, he should undergo simple imprisonment for 15 days.

47. It is needless to mention that in pursuant to the issuance of non-bailable warrant, the respondent/alleged contemnor was arrested and produced before this Court on 6th September, 2011. He was directed to be kept in Harsool Jail, Aurangabad till the next date i.e. 9th September, 2011 and thereafter also he was kept in Harsool Jail till today. Therefore, he is entitled for set off from the date of arrest till this date. The contempt proceedings qua this respondent nos.1 and 2 i.e. Mohd. Osman Mohd. Ismail stands concluded and disposed off. Respondent Mohd. Osman Mohd. Ismail should be sent to Harsool Jail to undergo remaining part of the sentence. He is made aware that, he has right of appeal under Section 19 of the Contempt of Courts Act, 1971.

48. At this stage, the learned counsel for the respondent/alleged contemnor submits that sentence may be suspended. However, in the peculiar facts and circumstances of this case and for the reasons recorded in the order dated 6th September, 2011, this Court find it very difficult to suspend the sentence and release the alleged contemnor, since there is no assurance from the counsel appearing for the respondent/contemnor that in case sentence is suspended, the respondent will make himself available to undergo remaining part of the sentence. In that view of the matter, such prayer is rejected. As stated earlier, the respondent-Mohd. Osman S/o Mohd. Ismail should be sent to Harsool Jail for undergoing remaining part of the sentence. The copy of this judgment should be supplied to respondent-Mohd. Osman S/o Mohd. Ismail by the Registry free of cost forthwith without any delay.

49. At this juncture, it will not be out of place to mention and appreciate that, Shri S.P. Chapalgaonkar, the learned counsel appearing for the respondent nos.1 and 2 had adopted very fair approach throughout the hearing of this Contempt Petition and also rendered very able assistance to this Court.

50. So far as respondent nos. 3 and 4 are concerned, initially no notice was issued to them and therefore, this Court feel it appropriate to dispose of this Contempt Proceedings qua respondent nos.3 and 4 as well. . Accordingly Contempt Petition stands disposed of. Original papers of Writ Petition no. 2177/2009, should sent back forthwith to the Writ Section of the Registry.


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