Judgment:
B.U. Wahane, J.
1. Both these contempt petitions are decided by the common Judgment as the question involved in both of them is one and the same.
2. Rule for contempt was issued by my learned brother Shri Justice Deshpande calling upon the respondents to show cause why they should not be dealt with for Contempt of Court for having violated the orders passed by the learned School Tribunal on 14.11.1991 in Appeal No. 86/1992-A (In Contempt Petition No. 180/92 filed by Purushottam Pawar) and another order passed by the School Tribunal on 17.8.92 in Appeal No. 136/1992-A (in respect of Ku. Vimal Meshram the petitioner in Contempt Petition No. 179/92), staying the operation and execution of orders of terminations issued by the respondents 1 and 2- the contemners.
3. The facts leading to the Rule are, in brief, as follows:The petitioner Ku. Vimal Meshram (the petitioner in Contempt Petition No. 179/92) was appointed as a Asst. Teacher since the beginning of the Academic Sessions of 1990-91 i.e. June 1990. The petitioners Ku. Vimal Meshram and Shri Purushottam Pawar both were appointed by the respondents 1 and 2 the President and the Secretary of Vishuddha Vidyalaya, Tilakwadi, Dist. Yavatmal. At the time of appointment Ku. Vimal Meshram had possessed the qualification of M.A., B.Ed. Addl. B.A. (Marathi Lit). The services of the petitioner Ku. Vimal Meshram were terminated with effect from 30.4.1992. She challenged the legality of the order of termination filing an appeal No. 86/92-A before the School Tribunal. On 30-6-1992, the stay order was granted by the School Tribunal. The order is reproduced as under:
'1) Issue ex parte ad interim stay to the operation and execution of the impugned order of termination dtd. 30.4.92, issued by the respondent No. 2, until further orders. Till then the respondent Management should continue the appellant in the said post of Asstt. Teacher.
2) Issue show-cause notice to the respondents, returnable on 28-8-1992, as to why this order should not be made absolute, pending the final decision of the appeal.
3) Copy of this order should be sent to the Education Officer (Secondary), Zilla Parishad, Yavatmal for information and necessary action'.
In pursuance of the stay order passed by the learned School Tribunal, the petitioner Ku. Vimal Meshram was directed to join her duties on 8.7.1992 during the pendency of the Appeal No. 86/92-A.
4. The services of Purushottam Nagorao Pawar were terminated vide order dtd. 31-10-1991. He too approached the School Tribunal filing an Appeal No. 228/91-A and on 14-11-91 the stay order was passed by the School Tribunal. The order passed is reproduced as under:
'1. Issue ex-parte ad-interim stay to the operation and execution of the impugned oral termination done by the respondent No. 2 on 31.10.91 until further orders. The respondents Nos. 1 and 2 should continue the appellant in the said post of peon, till then.
2. Issue show cause notice to the respondents returnable on 16.12.91, as to why this order should not be made absolute, pending the final decision of the appeal.
3. Copy of this order should be sent to the Education Officer (Secondary), Zilla Parishad, Yavatmal for information and necessary action.'
Inspite of the specific order passed by the School Tribunal on 14.11.1991, the petitioner was not allowed to join his services as peon. The petitioner was, therefore, constrained to file contempt petition in this Court. In pursuance of the oral directions given by this Court in the Contempt Petition, the petitioner Purushottam Pawar was reinstated on 4.11.92.
5. Shri Deshpande, the learned Counsel for the petitioners vehemently submitted that after the stay order was granted on 30.6.92, the petitioner Ku. Vimal was permitted to join her duties on 8.7.92. In spite of the specific directions to continue her in the said post of Assistant Teacher, her services were terminated with effect from 28.7.92 and, therefore, the respondents No. 1 and 2 have committed the contempt of Court. Secondly, Mr. Deshpande the learned Counsel submitted that the conduct of the respondents No. 1 and 2 be taken into consideration. Ku. Vimal Meshram was not appointed in place of one Mr. Bawane though it is submitted on behalf of the respondents No. 1 and 2 to that effect. However, to substantiate this fact, the respondents Nos. 1 and 2 have not placed any document to show that petitioner Ku. Vimal Meshram was appointed in place of Mr. Bawane.
In Appeal No. 136/92-A preferred by the petitioner Ku. Vimal Meshram, the learned School Tribunal stayed the impugned termination order vide order dtd. 17.8.92. Though the stay was granted and communicated to the respondents No. 1and 2, they did not allow the petitioner to join her services. Similarly, no payment was made to her. Consequently, the petitioner was constrained to file the Contempt Petition No. 179/92. The Contempt Petition No. 179/92 was filed on 14.9.92. Though the petitioner approached time and again, the respondents No. 1 and 2 turned deaf ear to her repeated requests to allow her to join her duties. The petitioner was allowed to join her services on 4.11.92 and that too only because of the oral directions of this Court. As no payment was made to the petitioner Ku. Vimal Meshram, this Court passed the order on 18.11.92 directing the respondents 1 to 3 to deposited a sum of Rs. 17,780/- in the Court within 2 months from the date of the order. In spite of the specific orders issued by this Court, the respondents did not pay or deposit the amount of Rs. 17,780/-.
6. In the case of the petitioner Purushottam Pawar (Contempt Petition No. 180/92) as he was not allowed to join his services and no payment was made in spite of the order passed by the learned School Tribunal on 14.11.91, he too was constrained to file the Contempt Petition No. 180/92 in which my learned brother Shri Justice Deshpande issued rule on 15.9.92. Till filing of the contempt petition neither the petitioner Purushottam Pawar was taken back in service nor the payment was made to him by the respondents No. 1 and 2. However, during pendency of the contempt petition, on the basis of the oral directions given by this Court, the petitioner Purushottam was reinstated on 4.11.92. My learned brother Shri Justice Mutalik passed the order on 18.11.92 directing the respondents 1 to 3 to deposit an amount of Rs. 17,780/- in the Court within 2 months from the date of the order. The respondents No. 1 and 2 did not comply with the order passed on 18.11.92 by this Court.
7. Considering the above facts and circumstances Shri Deshpande the learned Counsel for the petitioners submitted that inspite of the specific orders passed by the School Tribunal directing the respondents to continue the petitioners in service but deliberately they have not allowed them to join their services and also no payments were made and, therefore, there is wilful defiance, disobedience and disregard to the orders.
8. Shri Bapat, the learned Counsel of the respondents No. 1 and 2 vehemently submitted that immediately after the stay order was passed by the School Tribunal on 30.6.92, the petitioner Ku. Vimal Meshram was allowed to join her services on 8.7.92 and, therefore, the respondents No. 1 and 2 have not committed any Contempt of Court. However, regarding the termination w.e.f. 28.7.92 of the petitioner Ku. Vimal, no satisfactory reasons have been assigned. It is only submitted that as the petitioner Ku. Vimal Meshram was appointed in place of one Mr. Bawane, the clarification was sought from the Education Officer, as also an application for vacating the stay order was filed on 28.8.92 but as there was no reply from the Education Officer, as also the stay was not vacated by the learned School Tribunal, under misconception of law, they have terminated the services of the petitioner Ku. Vimal Meshram w.e.f. 28.7.92. According to them, it was not a deliberate attempt on their part. Similar is the justification in respect of another Appeal No 136-92-A filed by the petitioner Ku. Vimal and the order of stay to the operation of the termination, was passed on 17.8.92. No satisfactory reasons have been assigned why she was not reinstated and allow to work though the oral directions were given by this Court during the pendency of the contempt petition. Regarding the payments it is submitted that as the Management has no funds and 100% grant was sanctioned it was not incumbent on the Management to make the payments to their employees and, therefore, no payments were made to both the petitioners. According to the learned Counsel for the respondents 1 and 2, the pay bills were submitted to the Education Officer on 2.12.92 and that too as per the direction of this Court. It is, thus, clear that though the order of staying the operation of the termination order passed by the School Tribunal on 30.6.92 in the case of Ku. Vimal Meshram and in the case of Purushottam Pawar dtd. 14.11.91, no justification assigned by the respondents 1 and 2 in not sending the bills to the Education Officer immediately. It needs mention that the petitioners being the employees of the respondents 1 and 2, it is the legal and moral duty of the employer to make payments to their employees regularly. The teachers or any other employees not to be allowed to work with empty belly. Similarly to pay salary to it's employees is the primary duty and responsibility of the Management as held by Their Lordships of the Supreme Court in a case of Andi Mukta Sadguru Shri Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R. Rudani and others, : (1989)IILLJ324SC .
9. Further, Shri Bapat, the learned Counsel for the respondents 1 and 2 submitted that the relief which has been granted by the learned School Tribunal either in the case of the petitioner Ku. Vimal Meshram or Purushottam Pawar, has also been confirmed on merits directing the respondents Management to reinstate and continue the petitioners in their services. The order is ipso-facto illegal because such orders should not have been passed without hearing the parties. It needs mention that both the orders were interim orders passed within the jurisdiction and powers of the School Tribunal. Though, it is stated on behalf of the respondents that the applications for vacating the interim stay orders were filed, in facts, no efforts were made to vacate the stay orders. No material has been placed before me to substantiate the fact that any attempt was at any time by the respondents 1 and 2 to vacate the stay orders passed on 30.6.92 and 17.8.92. Therefore, there is no merit in the submission of Mr. Bapat, the learned Counsel for the respondents 1 and 2.
Further, Mr. Bapat, the learned Counsel for the respondents 1 and 2 submitted that the second order of termination w.e.f. 28.7.92 was passed under the misconception of law and, therefore, no contempt has been committed. Similarly, it is submitted that as the payments have been made up to 20th of June 1992 in respect of both the petitioners, no contempt is committed.
10. Mr. Badar, the learned A.G.P. on behalf of the respondent No. 3 the State of Maharashtra submitted that there was no approval granted to the post of the Assistant Teacher which the petitioner Ku. Vimal Meshram had occupied. For the first time, the approval was granted to her post on 4.6.93 by the Education Officer and that is with effect from 6.8.1991 till further orders. It is further submitted that only because of the directions issued by this Court on 18.11.92, the respondent No. 3 State deposited the cheque in the account of the petitioners on 16.10.1993. It is specifically submitted by the learned A.G.P. that in fact it was not obligatory on the part of the State to make payments as the post of Assistant Teacher which the petitioner Ku. Vimal Meshram is occupying and the post of peon which the petitioner Purushottam Pawar occupied, were not approved till 4.6.1993 and 31.3.1993 respectively but in compliance of the order passed by this Court on 18.11.1993, the respondent No. 3 has made the payments and subsequently deducted the excess amount from the grant. In view of the factual position of non-approval of the posts i.e. of the Assistant Teacher and of peon in respect of both the petitioners, it was moral and legal duty of the Management i.e. the respondents 1 and 2 to pay the salary to their employees. In this case they failed to do so.
11. Considering the facts and circumstances it is crystal clear that the respondents No. 1 and 2 deliberately or wilfully disobeyed the orders passed by the School Tribunal and thereby committed the Contempt of Court.
12. In both the contempt petitions, on behalf of the respondents Nos. 1 and 2 the reply has been filed on 22.10.92. In para 8, they tendered their unconditional apology. Considering the seriousness of the matter, the question arises in this case is to whether tendering unconditional apology would be sufficient either to drop the proceedings or to show the leniency. It must be remembered that the apology is not a weapon of defence forged to purge the guilt under all circumstances nor can it be allowed to operate as a universal panacea. Unconditional apology would be a circumstance for showing leniency in quantum of punishment, if mitigating circumstances shown.
There cannot be any rigid rule that every contempt proceeding should be dropped as soon as an unconditional apology is tendered. The very nature of the judicial function makes Judges sympathetic and responsive. However, every thing will depend upon the facts of each case. If the contempt is of a technical type or if the contempt can be termed as not serious or grave, the Court is likely to accept the apology. In other cases, mere apology would not do. So, before considering the various circumstances, the Court should consider and scrutinise the nature of contempt.
Keeping the object in view, I have to consider from the facts and circumstances, whether the contempt committed by the respondent No. 1 is technical or a minor one Whether it is grave or serious What would be its impact on the society All these aspects are relevant alongwith the various other circumstances to accept or not to accept the apology. In certain cases the Court should accept apology if the matter is such where acceptance of apology would be in the interest of justice. Similarly the Court will be failing in it's duty if necessary punishment is not awarded if the matter deserves any such punishment.
Considering the facts and circumstances of the case and the rival submissions of the parties, I do not accept the apology tendered by the respondent Nos. 1 and 2.
13. It is observed in the preceding paras that it is the legal and moral duty of the employer to pay regularly to it's employees. Rule 95 of the Secondary School Code specifically indicates that;
'Every School shall maintain reserve fund, which will not be less than its 4 months' normal expenditure.'
In view of this specific rule, it was incumbent on the Management i.e the respondents Nos. 1 and 2 at least to make the payments to the petitioner for 4 months immediately when they were directed to reinstate the petitioners.
Rule 87 of the Secondary Schools Code reads as under:
'Recognised schools are eligible for the following kinds of grants which may be paid at the discretion of the sanctioning authority subject to availability of funds and subject to the condition that the Societies running these schools are registered under the Bombay Public Trust Act, 1950, as amended from time to time :---
1) Salary grant;
2) Non-salary grant;
3) Building grant; and
4) Such other grants as may be sanctioned by Government from time to time.
In the instant case the posts of Assistant Teacher and the Peon which were occupied by the petitioners were not sanctioned by the State till the orders dtd. 4.6.93 and 31.3.93 respectively. Thus, it can not be said that unless the bills are sanctioned by the Education Officer, the Management is not in a position to pay to the employees of the Management. It was incumbent on the part of the respondents No. 1 and 2 to pay the salary to their employees i.e. the petitioners.
14. Education plays an important role in our life. It develops undeveloped culture and makes human perfect. A Gems are beautiful as found in the natural but when we cut it to have proper shape, it look more beautiful likewise educational institutions work on the same line. It is expected by every citizens that the educational institution should mould or shape the students those who are taking education in their institution. However, day in and day out through the newspapers or the journals the views expressed by the social workers and as also others, presently the majority of the educational institutions are not dedicating to look out after the welfare of their employees as also to shape the lives and career of the students. Now a days, we see the totally different picture in this holy field. It is also said that in the name of the social work, the persons who are entrusted or running the educational institutions in the name of social work, have converted these institutions in a commercial complex. It is also heard saying the people in general describing such educational institutions as a money minting machine and thereby the public day by day loosing the faith in the administration of such schools. It is the expectation of all and one should expect that if the teachers are fed regularly then only they can impart the education to the students. One can not expect the same from the empty bellied teachers. If such is the plight, it will be difficult so as to say impossible to maintain the standard of education and to impart the education to the students in real sense. I am constrained to express this only because most of the Managements of the educational institutions are not either reinstating the teaching and non-teaching staff and even if they have been allowed to join the services, the salary is not paid to them, in spite of the specific orders by the courts of justice. This tendency must be curbed in the interest of society and the nation in general, otherwise the lives and career of our children will not be safe.
15. Regarding the punishment Shri Bapat, the learned Counsel of the respondents No. 1 and 2 placed reliance on the case of Smt. Pushpaben and another v. Narandas V. Badiant and another, : 1979CriLJ960 in which it is observed that ;
'A sentence of fine alone should be imposed in normal circumstances. The statute, however, confers special power on the Court to pass a sentence of imprisonment if it thinks that ends of justice so require. Thus, before a Court passes the extreme sentence of imprisonment it must give special reasons after a proper application of its mind that a sentence of imprisonment alone is called for in a particular situation. Thus, the sentence of imprisonment is an exception while sentence of fine is the rule.'
The learned Counsel in view of the observations made in the case cited supra, submitted that Shri S.S. Date the respondent No. 1 the President is a pretty old man of 82 years. He is an ailing person. Similarly, Smt. L.G. Sheorey, Head Mistress and Secretary of the School Committee is an aged lady and, therefore, they should not be sentenced to jail. Imposition of fine will meet the ends of justice. Though the respondents 1 and 2 have committed the Contempt of Court, and in fact considering the facts and circumstances they do not deserve any leniency but considering the age of the respondent No. 1 Shri S.D. Date and Smt. L.G. Sheorey the respondent No. 2 being elderly lady, according to me, without sending them behind the bar, imposing fine would met the ends of justice.
16. In the result, the respondent No. 1 Shri S.D. Date, President Vishuddha Vidyalaya, Tilakwadi, Yavatmal and the respondent No. 2 Smt. L.G. Sheorey, Head Mistress and Secretary School Committee, Vyankatesh Vidyalaya, Ghodkhindi, Tah. & Dist. Yavatmal, are sentenced to suffer S.I. till rising of the Court and to pay a fine of Rs. 1000/- each. The respondent Nos. 1 and 2 are directed to pay the fine by 24th Novembe,r 1993 else both will suffer S.I. for one month.
In terms Rule made absolute. State being a formal party, Rule discharged against it.
Rule made absolute.