Mohd Osman Mohd. Ismail and Anr. v. Rafiya Sultana Iqubal Ahemed Khan and Ors.

Bombay HC17 Dec 2011CAPL/4/2011

Case brief

AI extract

What is this about?

Contempt appeal dismissed. The appellant failed to pay salary arrears despite multiple undertakings to the Court and absconded to avoid arrest. The Court distinguished a cited precedent involving an elderly female contemner, holding that leniency was not applicable here due to the appellant's willful disobedience.

What did the court decide?

Contempt appeal dismissed and appellant ordered to undergo the remaining prison sentence.

Mohd Osman Mohd. Ismail and Anr. Vs Rafiya Sultana Iqubal… — Contempt of Court | Bombay HC (2011)

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Con. Appl. No. 4/11

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IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD

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CONTEMPT APPEAL NO. 4 OF 2011

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Mohd. Osman s/o. Mohd. Ismail, Age Major, Occu. Nil., R/o. Rahim Bhai Engineer, District Parbhani. At present - Madarse Nurulum Education Society, Mehbub Nagar, Nanded.

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The President, Madarse Nurulum Education Society, C/o.-Madarse Aamena Urdu Primary School, makdum Nagar, Nanded.

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....Appellants.

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Versus

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Rafiya Sultan Iqubal Ahmed Khan, Age 42 yrs., Occu. Ass. Teacher, R/o. House No.-5, Block No. 24, Labour Colony, Nanded. ....Respondent.

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Mr. S.S. Chapalgaonkar, Advocate for appellant..

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Mr. G.R. Sayed, Advocate for respondent No. 1.

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CORAM : NARESH H. PATIL & T. V. NALAWADE, JJ. Reserved on : 8th December, 2011. Pronounced on: 17th December 2011.

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ORDER : [ PER T. V. NALAWADE, J. ]

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The appeal is filed to challenge the judgment and order of Single Judge of this Court delivered in Contempt Petition No. 464/2010. In Writ Petition No. 2177/2009 undertaking was given to this Court by appellant to pay salary and arrears of the

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Con. Appl. No. 4/11

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salary to respondent No. 1 within prescribed time, but the appellant failed to pay such amount. The appellant has produced private paper book containing the relevant documents. Both the sides are heard.

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It was mainly submitted for the appellant that appellant has reached age of 60 years and as the amount is huge, the appellant could not make arrangement to pay the amount. Submission was made that the appellant is the President of the Educational Institution though he gave personal undertaking and so lenient view can be taken.

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On the other hand, the learned advocate of the other side/the employee submitted that the conduct of the appellant is such that he is not entitled to any leniency. It was submitted that the appellant committed breach of undertaking given in Writ Petition No. 2177/2009 and he committed breach of another undertaking given to Contempt Court. It was submitted that the appellant was absconding for some time for avoiding the execution of process issued by this Court like warrant and he tried to protract the proceeding.

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The record and the submissions made show that the respondent was working on the post of Head Mistress in a primary

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Con. Appl. No. 4/11

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school of which the appellant is the President. Appellant made order of reversion against the respondent and her post was reduced to Assistant Teacher from the post of Head Mistress. This action was challenged by the respondent by filing proceeding before the School Tribunal. The School Tribunal set aside the order of the appellant. The appellant filed Writ Petition No. 2177/2009 to challenge the decision given by the School Tribunal. As appellant had stopped paying salary even of the post of Assistant Teacher to the respondent, grievance in that regard was made before this Court by the learned advocate of the respondent. Then a statement was made by the learned counsel of the appellant on 12.11.2009 to the effect that appellant would take steps for making payment of unpaid salary and the salary would be paid within six weeks. The salary was not paid to the respondent from January 2008 to November 2009 when such undertaking was given.

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On 30.10.2010 the respondent filed contempt petition and contended that the appellant had willfully disobeyed the order of this Court and he had committed the breach of undertaking given to this Court on 12.11.2009. The appellant appeared in the contempt petition and filed affidavit in reply on 7.3.2011. Prior to that, he had sought some adjournments for filing reply. In the reply, the appellant tried to blame the

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Con. Appl. No. 4/11

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respondent by contending that the relevant record which was in the custody of respondent as Head Mistress was not handed over by her and so the bills could not be prepared and they could not be forwarded to the concerned department. This school receives grant in aid. The record is produced to show that in November 2009 itself the relevant record of the school was handed over by the respondent to newly appointed Head Mistress and the Education Officer has filed affidavit to the effect that the bills were not sent to him by the appellant till 2.7.2011. The affidavit also shows that the bills were required to be returned as there were deficiencies in the bill.

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The record shows that from 12.11.2009 till 2.7.2011 no steps at all were taken by the appellant either for preparing bills or for making payment of salary and arrears to the respondent from the amount of institution. In contempt proceedings one more undertaking was given that within three days from 15.6.2011 the bills would be submitted to the Education Officer and if the concerned department does not disburse the salary amount before 24.6.2011 the appellant would deposit the amount within one week from 24.6.2011. The appellant committed breach of this undertaking also. No steps were taken for extension of time mentioned in the undertaking.

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Con. Appl. No. 4/11

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On 11.7.2011 the matter was listed before the Contempt Court. The appellant did not remain present before the Contempt Court and no exemption was sought in respect of the attendance. The Contempt Court issued non bailable warrant on 11.7.2011 and Superintendent of Police, District Parbhani was directed to execute it before 27.7.2011. The learned advocate, who was initially representating the appellant, made submission before the Contempt Court on 15.7.2011 that he had tried to convince the contemner to comply the order of the Court, but the contemner was not in mood to listen. This advocate prayed for his discharge from the matter. On 5.8.2011 Superintendent of Police filed affidavit to inform the Contempt Court that special steps were taken by constitution of special squads to trace out the contemner, but police could not trace him out. The statements of neighbourers and relatives of contemner were recorded by the police when the search was made. It was informed that the contemner was absconding and so the police could not execute the N.B.W.

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On 11.8.2011 the new advocate of contemner appeared before the Contempt Court. The contemner, however, avoided to attend the Court. This learned advocate was not able to give information about the whereabouts of the contemner to the Court. Time was given to police to execute the N.B.W.

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Con. Appl. No. 4/11

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Ultimately police traced out the contemner and he came to be arrested on 6.9.2011. When the contemner was produced before the Court, he was committed to Jail as his advocate could not give assurance to the Court that the contemner would attend the Court, if he was released by the Court. From 6.9.2011 till the decision of the matter, 12.9.2011 the contemner was kept in Jail. During the hearing, submissions were made that there are no funds with the institution. The order of the Contempt Court shows that the contempt court has taken into consideration the aforesaid circumstances. The salary in respect of the further period was also not paid by the contemner to the respondent. Affidavit was filed by the respondent that after filing of the contempt proceeding, that the contemner had given threat of dire consequences.

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The record and submissions show that the bills were not forwarded to Education Officer for about 19 months after giving undertaking by the contemner. The contemner avoided to pay further salary also. The contemner personally bound himself to make payment, if there was no possibility of getting the amount from Government department. But, he committed breach of this undertaking also. The contemner then absconded and special efforts were required to be made by the Superintendent of Police, Parbhani to trace him out. All these circumstances and the conduct of the contemner show that he willfully disobeyed the

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Con. Appl. No. 4/11

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order of the Court. It is not in dispute that the breach of such undertaking amounts to disobedience of the order of the Court. For such contempt, imprisonment for six months can be given and the Contempt Court has given imprisonment for the period of three months. It appears that the contemner was kept behind bars for about sixty days before he was released by this Court.

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For appellant, the case reported as 1999 AIR (SC) 1042 between Sophy Kelly Vs. Chandrakant Ganpat was cited. In this case, the Apex Court took lenient view when the contemner was a lady and she had crossed the age of 83 years when the matter came up for hearing before the Apex Court. She was convicted by the Contempt Court when she was aged 70 years. In view of the facts of the case lenient view was taken and the decision to keep her behind bars was set aside. The facts and circumstances of each and every case are always different. In the present case, in view of the aforesaid circumstances and the record, this Court holds that no such lenient view can be taken. As no case is made out for interference, the appeal stands dismissed. Appellant is to be sent to prison for undergoing sentence.

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[ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.]

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ssc/

Mohd Osman Mohd. Ismail and Anr. v. Rafiya Sultana Iqubal Ahemed Khan and Ors.

Case brief

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Mohd Osman Mohd. Ismail and Anr. v. Rafiya Sultana Iqubal Ahemed Khan and Ors.

Case brief

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