High Court
Legal Reasoning
5935.2024CP.odt8.Learned Advocate for the petitioner next contended thatthe cause of action for filing the present petition is a continuing causeof action. In fact, this submission is canvassed with greatervehemence. She states that all persons are bound to comply with theorders passed by the Courts of law and till such time the orders arecomplied, breach of the order continues, providing consequent right tothe person in whose favour the order is passed to make a grievanceregarding non-compliance of the order by filing a contempt petition.She would submit that the contempt petition is, therefore, not barred bylimitation. She has placed reliance on two judgments delivered by thelearned Single Judges of this Court in the matters of Dr. KekabadCausashaw Batliwala and others Vs. The Municipal Corporationof Greater Bombay and others reported in 1991(1) Mah. LR 438 andPioneer Sales Agencies (P) Ltd., Vs. Olympus SuperstructuresPvt. Ltd., and another reported in 2004 Cr.L.J. 3498. In the matter ofPoineer Sales Agencies (P) Ltd., (supra), a learned Single Judge ofthis Court has held that limitation for filing contempt petition does notcommence from the date of order but from the date of disobedience ofthe order or failure to comply with the order. In the said case, anassurance and undertaking was given to the Court to execute certainwork in a building and to obtain the occupancy certificate. However,the work was not done. In this backdrop, it is held that as long as the 6935.2024CP.odtwork is not done, the violation of the order will continue and it would bea case of recurring cause of action. Likewise, in the matter ofDr.Kekabad Causashaw Batliwala (supra) certain directions wereissued to remove unauthorized structures and to construct the roadwithin period of one year. However, no steps were taken by therespondents in the contempt petition within the period of one year. Inthis backdrop, when the contempt petition was filed, defence oflimitation under Section 20 of the Contempt of Courts Act was soughtto be taken. The learned Single Judge rejected the argument that thecontempt petition was barred by limitation holding that as long as theorder of the Court is not obeyed, the contempt continues. Theobservations by the learned Single Judges have been made in thebackdrop of facts in the said cases.9.In the present case, the school in which the petitioner wasworking was closed down. The petitioner was claiming that her nameshould be taken in the list of surplus employees and further that herservices should be absorbed in any Zilla Parishad School. She hasfiled petition praying for the said relief. The petition came to be decidedfinally vide order dated 06.10.2016 directing the Zilla Parishad andEducation Officer (Secondary) to place her in the list of surpluscandidates to be absorbed with Zilla Parishad schools and thereafter,absorb her services in accordance with seniority. The issue which falls 7935.2024CP.odtfor consideration is as to whether non-compliance of such a directionwill give rise to a continuing cause of action for filing contempt petition. 10.The Hon’ble Supreme Court has in the aforesaid judgmentof S. Tirupathi Rao (supra) considered in great detail as to when acause of action for filing contempt petition can be construed ascontinuing cause of action. The Hon’ble Supreme Court has referred toits earlier decision in the matter of Balkrishna Savalram Pujari Vs.Shree Dnyaneshwar Maharaj Sansthan reported in AIR 1959 SC798. Referring to the said judgment, the Hon'ble Supreme Court hasexpressed that when there is one single act required to be done orperformed, which is not so done or performed, the wrong will be asingle act of non-compliance and that such act cannot be said to be acontinuing wrong. It will be a single act of non-compliance complete inall aspects. 11.As regards the two judgments relied upon by the learnedcounsel for the petitioner we may record that we are bound by thejudgment of the Hon’ble Supreme Court in the matter of S. TirupathiRao (supra). The said judgments by learned single Judges of thisCourt will not come to the rescue of the petitioner in the facts of thepresent case. We also can not accept the contention of petitionermade by relying upon the said judgments that till such time of order ofCourt is complied, there will be a breach which shall continue till the 8935.2024CP.odtorder is complied with. Accepting the argument will render Section 20of the Contempt of Courts Act, 1971 completely otiose. 12.The Hon’ble Supreme has also specifically held in thematter of S. Tirupathi Rao (supra) that if the petitioner intends toovercome the delay take shelter of the cause being a continuing wrongoffering continuous cause of action it should be specifically pleadedand properly explained. Perusal of pleadings in the contempt petitiondemonstrate that the petitioner has maintained deafening silence inthis regard. The petitioner has not offered any explanation forapproaching this Court after a period of over eight years.13.It is also held in the matter of S. Tirupathi Rao (supra)that stale claims of contempt should not be entertained. In the presentcase, the contempt petition is filed after a period of over eight years ofthe order. After passing of the order, the Education Officer had issuedletter dated 10.01.2018 directing that services of the petitioner beabsorbed in another minority institution. The said minority institutionrefused to allow the petitioner to join in service, when she hadapproached the said school on 13.01.2018 for joining. The petitionerhad issued a communication dated 22.02.2018 to the EducationOfficer pointing out the said fact. After 22.02.2018, he has madeanother representation dated 26.08.2024 and has filed presentcontempt petition on 07.10.2024. The petitioner has not taken any 9935.2024CP.odtsteps right from 22.02.2018 to 26.08.2024. Apart from the limitation,the petitioner is also guilty of unexplained delay and laches. 14.The order passed by this Court directs the respondent –Education Officer to include the name of the petitioner in the list ofsurplus teachers. This act of including the name was to be performedonly once. Therefore, the breach of said direction is not a continuingbreach. The second direction in the order is to absorb the petitioner inZilla Parishad School in order of seniority amongst the surplusteachers. However as stated in paragraph 8 of the petition the nameof petitioner is not yet included in the list of surplus teachers. Teacherswhose names are included in the list of surplus teachers were to beappointed in Zilla Parishad Schools in order of seniority. Inclusion ofname in the list is the first step and absorption in order of seniority isthe second step. Since the first part of the order is not complied withand contempt is not filed within the prescribed period of limitation weare of the opinion that the petition is barred by limitation with respect toboth directions.15.The Education Officer directed absorption of the servicesof the petitioner in another private minority school namely MadinatulUlum Secondary and Higher Secondary School vide letter dated10.01.2018. The petitioner had reported for joining service in the said 10935.2024CP.odtschool on 13.01.2018. However, the said school did not allow thepetitioner to join in service. The Education Officer had issued orderdated 10.01.2018 for absorption of service of the petitioner in a privateschool although this Court had directed absorption in a Zilla ParishadSchool. This also gave a clear indication to the petitioner that hisservices were sought to be absorbed in a school other than ZillaParishad School, which was not strictly in accordance with the orderdated 06.10.2016 passed by this Court. The letter dated 10.01.2018followed by the attempt on the part of the petitioner to join in service inthe private School on 13.01.2018 can also therefore be considered tobe starting point of limitation for filing the contempt petition. Thepetition is filed after period of six years and nine months approximatelyfrom the said date. The petition is hopelessly barred by limitation.16.In the facts of the present case where the petitioner hasapproached this Court after a period of around 8 years from the date oforder passed in her favour. We find that the contempt petition shouldnot be entertained on account of delay and laches on the part of thepetitioner. In such circumstances, it may not be necessary to decide asto whether the non-compliance on the part of the Education Officergives rise to continuing cause of action in favour of the petitioner.17.Assuming that the cause of action for filing the contempt is 11935.2024CP.odtcontinuing cause, yet we do not deem it appropriate to exercise ourjurisdiction either under the Contempt of Courts Act or under Article215 of the Constitution of India having regard to enormousunexplained delay on the part of the petitioner in filing the contemptpetition.18.The petitioner has placed on record the GovernmentResolution dated 15.03.2024, which lays down the procedure forabsorption of surplus teachers. The petitioner claims right of absorptionon the basis of the said Government Resolution. We clarify that thepresent order will not be an impediment for the petitioner to availappropriate remedy to enforce her alleged rights as per the saidGovernment Resolution and that the petitioner may avail of appropriatelegal remedy if it is permissible in law.19.In the result, the contempt petition is dismissed with noorder as to costs. [ROHIT W. JOSHI][ SMT. VIBHA KANKANWADI] JUDGEJUDGEsga
Arguments
1935.2024CP.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.CONTEMPT PETITION NO. 935 OF 2024INWRIT PETITION NO. 9394 OF 2015Mohammed Abdul Rahman S/oMohammed Abdul HabibAge : 43 years, Occ : Surplus teacher,resident of Mohalla Gani Pura, NandedH. no. 8-4-234, Nanded..PETITIONER-VERSUS-1.The State of Maharashtra2.Smt. Minal DeshmukhChief Executive Officer,Zilla Parishad, Nanded.3.Shri Madhav SalgareEducation Officer (Secondary)Zilla Parishad, Nanded...RESPONDENTS...Advocate for petitioner : Ms. A.N. AnsariAGP for Respondent- State : Mr. A.V. Lavate...CORAM :SMT. VIBHA KANKANWADI ANDROHIT W.JOSHI, JJ.DATED : 29 NOVEMBER, 2024.JUDGMENT (PER R.W. JOSHI, J.) :.The present contempt petition is filed under Sections 10and 12 of the Contempt of Courts Act, 1971 and under Article 215 ofthe Constitution of India drawing attention to the non-compliance of theorder dated 06.10.2016 passed in Writ Petition No. 9394/2015. 2935.2024CP.odt2.The petitioner was appointed as assistant teacher inNoorjahan Urdu High School, Naigaon, a minority institution, in theyear 2009. Her appointment was duly approved by the EducationOfficer (Secondary), Zilla Parishad, Nanded. The said school in whichthe petitioner was teaching was closed down in the year 2011. Shewas declared surplus teacher somewhere in the year 2016. Thepetitioner made representations to the Education Officer and finallyfiled petition, being Writ Petition No.9394/2015, inter alia, praying fordirections to declare her surplus and to direct that her services beabsorbed in other school receiving grant-in-aid or in a Zilla ParishadSchool. The said petition came to be allowed vide order dated06.10.2016 passed by this Court. The order dated 06.10.2016 recordsthat as per Government Resolution dated 13.07.2016, surplus teacherof minority institution is required to absorbed in schools run by the localbodies. This Court directed that name of the petitioner be included inlist of surplus candidates to be absorbed in Zilla Parishad Schools andabsorption of services should be done in accordance with seniority asearlier as possible. 3.After the aforesaid order was passed, the services of thepetitioner were directed to be absorbed in another minority school,named Madinatul Ulum Secondary and Higher Secondary School,Degloor Naka, Nanded vide letter dated 10.01.2018 issued by the 3935.2024CP.odtEducation Officer (Secondary), Zilla Parishad, Nanded. However, thesaid school refused to absorb the petitioner on the ground that aminority institution cannot be compelled to absorb the surplusemployees. 4.The present contempt petition is filed alleging non-compliance of the order dated 06.10.2016. It is stated in paragraph 8of the contempt petition that the name of the petitioner is not includedin the list of surplus teachers and her services have not been absorbedin any Zilla Parishad School. The petitioner, therefore, states that therespondents in the contempt petition, particularly respondent Nos. 2and 3, are guilty of willful and deliberate non-compliance of the orderdated 06.10.2016 passed by this Court and liable to be prosecuted andpunished for having committed contempt of this Court.5.Mr. Lavate, learned A.G.P. appearing for respondent No.1raised issue of limitation placing reliance upon the judgment of theHon’ble Apex Court in the matter of S. Tirupathi Rao Vs. M.Lingamaiah and others reported in AIR Online 2024 SC 509. Videorder dated 19.11.2024, on request being made by learned Advocatefor the petitioner, we had granted accommodation to her to makesubmissions on the point of limitation. 4935.2024CP.odt6.We have heard learned Advocate for the petitioner and thelearned A.G.P. on the point of limitation as also on latches.7.The order with respect to which the contempt is allegedwas passed on 06.10.2016. The contempt petition is filed on07.10.2024 i.e. after a period of 8 years from the date of order.Learned Advocate for the petitioner initially tried to contend that sincethe non-compliance and resultant contempt pertains to order passedby this Court, limitation prescribed under Section 20 of the Contempt ofCourts Act will not be applicable to the present contempt petition. Shewould elaborate the submission by contending that constitutionalpower to punish for contempt, which is recognized by Article 215 of theConstitution of India, cannot be curtailed or circumscribed by astatutory enactment viz. The Contempt of Courts Act, 1971. The saidargument made by learned Advocate for the petitioner is rejected inview of the law laid down in the aforesaid judgment of the Hon’bleSupreme Court in paragraphs 33 to 37, which clearly states that thepower to punish for its contempt vested with the High Courts underArticle 215 of the Constitution of India has to be exercised inaccordance with validly enacted law and as such, the period oflimitation prescribed under Section 20 of the Contempt of Courts Actwill also be applicable to contempt petitions filed invoking Article 215 ofthe Constitution of India.