Sheshrao Manikraoji Warhade vs Rajaram Bapu Patil Shikshan Sanstha and others

My brother Shri Justice S. G. Mutalik, issued rule on 17-2-1993 against the contemner including the Education Officer and the State of Maharashtra, calling upon them to show cause why the action should not be taken against them under the provision of the Contempt of Courts Act, 1971, as the contemners 1, 2 and 3 i.e. the President, Secretary and Head Master intentionally and wilfully disobeyed the order passed by the learned School Tribunal, Nagpur, on 20-11-1990.

The facts arose for initiation of the instant contempt proceedings, in brief, are as follows;

According to the petitioner, he was appointed as P.T.I. on 25-6-1986 by the Management known as Rajaram Bapu Patil Shikshan Sansthan which runs Vinayakrao Wankhede Vidyalaya, Ubali, Dist. Nagpur. On the contrary, according to the contemners 1, 2 and 3, the petitioner was appointed on 24-6-1987. To substantiate the averments, the contemners 1, 2 and 3 filed a copy of the appointment order dated 24-6-1987 as document No. 3. Admittedly, the said Sansthan was conducting the classes of 8th, 9th and 10th standards. The petitioner was appointed as a P.T.I. There was only one post of P.T.I. in the school. Besides the educational qualification required for the post of P.T.I., the petitioner is B. Com.

The service of the petitioner was terminated vide order dated 31-3-1990 with effect from 30-4-1990. The Petitioner preferred No. STN/74 of 90. However, no stay was granted to the petitioner staying operation and execution of the order of termination. Notice was issued to the respondents. Ultimately, the Presiding Officer School Tribunal, Nagpur Division, Nagpur, passed order on 20-11-1990. In para No. 1 of the order itself, the learned School Tribunal specified that;

"In spite of sufficient time granted to the respondents Nos. 1 and 2 to file reply on stay application, the respondents did not file written statement and reply with documents".

After hearing the appellant/petitioner, as it was transpired that in his place nobody was appointed and he being the fully qualified for appointment as P.T.I. and that too in clear and permanent vacancy, the termination was stayed and the respondents 1 and 2 were directed to permit the appellant to join his duties, and to discharge his duties and also to pay him emoluments with effect from 1-5-1990 and shall pay him his salary regularly. According to the petitioner, at the time of his termination, he was getting monthly salary of Rs. 1905/- and till the date of filing of the instant contempt petition, the petitioner was entitled to receive the arrears of his salary to the tune of Rs. 64,470/-.

Shri Parsodkar, the learned counsel for the contemners 1 to 3 specifically submitted that the contemners have filed reply as also written statement on merits on 27-11-1990. The contemners specifically prayed in the reply to the application for stay, to vacate the stay granted by the learned School Tribunal on 20-11-1990. However, admittedly till this date neither there is any order passed on the application filed by the contemners to vacate the stay nor the appeal is decided on merit. It is stated by the learned counsel for the contemners that for about more than 1 1/2 years, there was no Presiding Officer to attend the work of the School Tribunal. Therefore according to Shri Parsodkar, the learned counsel for the contemners that the order dated, 20-11-1990 being an ex parte order, the contempt proceeding itself is unwarranted in view of the application for vacation of stay is not decided, and, therefore, the proceedings be dropped.

Reliance has been placed on a case of State of J. and K. v. Mohd. Yaqoobkhan, (1992) 4 SSC 167 :

It needs mention that during the non-availability of the Presiding Officer in the School Tribunal, Nagpur for about more than 1 1/2 years why the Management/respondents kept mum and did not prefer writ petition in this Court to get the operation and execution of the stay granted by the School Tribunal stayed as is done by other Managements. This Court granted them temporary relief. It is fairly admitted by the learned counsel for the contemners that they have not taken such step to approach this court by filing writ petition. Therefore, the contemners were satisfied only filing the application for vacating the stay order granted by the learned School Tribunal on 20-10-1990. There was no persuasion for vacating the stay order.

Giving conscious thought to the facts which were before their Lordships of the Supreme Court and the facts of the case in hand being altogether different the case cited by the learned counsel is of no assistance. In the case which was before their Lordships of the Supreme Court, without issuing notice to the other side an ex parte stay order was passed. On the contrary in the case on hand, though at the time of filing Appeal No STN/74 of 90, a separate application was filed for grant of stay to the operation and execution of the order of termination dated. 31-3-1990, the learned School Tribunal did not pass any order on the application. On the contrary, notice was issued thereby giving opportunity to the contemners to file their say and make statements in respect of the stay application. However, it is clear from the order D/- 20-11-1990 passed by the learned School Tribunal, Nagpur that;

"In spite of sufficient time granted to the respondents 1 and 2 to file the reply on stay application, the respondents did not file their written statement and reply with documents."

It is, thus, crystal clear that though the sufficient opportunity was given to the respondents 1 and 2 to file the reply and to make submissions they have chosen not to file the reply and remained absent. The court cannot be expected to adjourn the matter and even not to give verdict on the stay application which is of the urgent nature. Therefore, by no stretch of imagination, it can be said that the order passed by the learned School Tribunal was an ex part order. Considering the facts and circumstances narrated above, the case cited supra by the learned counsel is of assistance to him.

It is not disputed that though the petitioner was allowed to resume his duties, he has not been paid either the arrears or the regular salary till this date. The contemners 1 and 2 i.e. the Secretary and President of the Institution very boldly and courageously stated in the court itself that they are not in a position or their financial position is not such to clear of the arrears of the petitioner. It is, thus, crystal clear from the statements of the contemners 1 and 2 that they have no scant regard of the judicial orders. The contemners 1 and 2 being the Secretary and the President of the Sanstha, it is their moral and legal duty to pay the salary and other admissible benefits to their employees regularly. After establishing the Sanstha and thereafter opening the educational institution, employing teaching and non-teaching staff, they have no legal or moral right to say that they have no money to make the payments to their own employees. The financial position is not satisfactory, cannot be a ground in defence in contempt petition.

It is the primary duty of the employer to make payments to its employees without waiting for the Government for the payment. The Hon''ble Supreme Court in a case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V.R. Rudani and Others, observed;

"We are only concerned with the liability of the Management of the College towards the employees. Under the relationship of master and servant the management is primarily responsible to pay salary and other benefits to the employees. The management cannot say that unless and until the State compensates, it will not make full payment to the staff. We cannot accept such a contention.

Thus, the contemners 1 and 2 have committed the contempt of Court.

Shri Parsodkar, the learned counsel for the contemners 1 and 2 vehemently submitted that before terminating the services of the petitioner, two separate loans were advanced to the petitioner to purchase the laboratory and sports materials, totalling to Rupees 62,000/-. No doubt, such a specific statement is made by the contemners 1 and 2 in their written statement filed before the learned School Tribunal. Similar are the averments in the reply filed by respondents 1, 2 and 3. Besides this, two receipts have been placed on record. The petitioner denied writings of these two receipts, and further submitted that this Court be pleased to direct the contemners 1 and 2 to produce the originals in this Court. However, those documents have not been produced. It is a dispute between the petitioner and incharge Head Master. This cannot be adjudicated in this petition. Assuming that the contemners have advanced some amount to purchase sport materials and laboratory materials, the responsibility of the contemners as Employer cannot cease to make payments to their employees. For recovery of advanced amount, they have to institute the appropriate proceedings.

Secondly, it is alleged by Shri Parsodkar the learned counsel for the contemners 1 and 2 that there being no sufficient strength of students in the Educational Institution run by the contemners 1 and 2 the petitioner though was appointed as P.T.I., he was directed to conduct the Hindi Classes of 8th, 9th and 10th standards. However, when the specific questions were posed to the learned counsel for the contemners, whether the petitioner was qualified and thus eligible to conduct the Hindi classes ? No satisfactory reply came forth. Admittedly, besides having the qualification to be appointed as P.T.I., the petitioner is a post-graduate being M. Com., Unless a teacher is qualified in a particular subject and eligible to conduct the classes, the work of teaching beyond his capacity cannot be entrusted to a teacher. If really so, the Management entrusted the work of conducting Hindi Classes to the petitioner of 8th, 9th and 10th classes, apparently the irresistible inference deducible is that the subject was not taught to the students. If such conduct and attitude is adopted by the Management then they are giving go-by to the pious intention of education. Such a question was also posed before the National Council for the Educational Research and Training sometimes before that how such an unqualified teacher could teach in any other subject other than in (which) he obtained degree. Education is meant to give better outlook in life. Similarly, building character-turning babies and children into civilised, co-operative humanbeings. The real purpose of education is to elevate thinking level of the man and to mould the persons in general into the ideal citizens of tomorrow. Keeping in view the pious object of education, if the Management is directing the unqualified teacher to take the classes in the subject in which he is not qualified, it will be nothing but to spoil the lives and career or such students.

It is further submitted by the learned counsel for the contemners 1 and 2 that the petitioner was appointed as a P.T.I. and thereafter he was made in charge Head Master of the School. He never conducted the classes of P.T.I. as also he has not conducted the classes of Hindi subjects. To substantiate the allegations, the various complaints alleged to to have been filed with the Management, have been placed on record. The first complaint signed by various students appears to have been submitted to the Management on 11-9-1989. In three other complaints, no dates have been mentioned. The grievance of the students of 8th, 9th and 10th standard of this school is that the petitioner never conducted the physical training classes, never taught any sport and not conducted the Hindi Classes for the last 2 years earlier to September, 1989. The School is situated in village Ubali. Admittedly, it is not a big village. The Secretary and President of the Management are also residing in the same village. If the petitioner is not taking physical training classes or teaching the subjects, immediate action would have been taken against him. But except the termination of the services of the petitioner no document has been placed on record to show that any action was taken by the Management against the petitioner. However, in this respect too no need to discuss as it is not the subject-matter for adjudication.

The petitioner is not the only victim of termination by the said Management. But earlier to his termination also, one laboratory attendant and a peon were terminated. They too approached the learned School Tribunal and operation of execution of termination orders were stayed. There was no compliance of the orders. It being a wilful disobedience of the orders passed by the learned School Tribunal in respect of the employees referred above, they were constrained to approach this court preferring contempt petitions Nos. 131, 132, 133 and 134 of 1992. After hearing the submissions of the learned counsel on behalf of those petitioner my brother Shri Justice Sambre, passed the following order on July 5, 1993.

"This court has directed the Non-Applicant/Institution to pay the salary for 3 months to the applicants. The non-applicants/Institution is unable to pay 3 months salary but has come forward with a proposal that they are able to pay Rs. 3000/- each to the petitioners. Non-applicant/Institution is directed to pay Rs. 3000/- each to the petitioners and further pay the the salary regularly without fail. The petitioners have already been taken back in service and they are continued in service as termination orders issued earlier have been stayed by the Tribunal. In view of the fact that the Non-applicant-Institution shall pay the salary regularly, the contempt petitions shall stands disposed of".

Shri Parsodkar, the learned counsel for the contemners 1 and 2 very fairly stated that after the impugned order was passed on 5-7-1993, each petitioner in the above contempt petitions, was paid Rs. 3000/-. However, subsequent salary was not paid because the school was closed on 19-6-1993.

The contemners 1 and 2 in para No. 13 of their submission submitted that they are running the school without any grant from the Government. They are making payments and incurring expenses from their pocket. They were paying consolidated salary to the teachers '' Rs. 300/- per month only with a view that the students from Ubali should get benefits of education. However, they being unable to pay the salary to the staff, the teachers were bent upon to file the writ petitions against the Management for claiming full salary. Therefore, there being no other way, they applied to the Deputy Director of Education for closer of the School. The Deputy Director of Education did not accord the sanction for the closer. The contemners 1 and 2, therefore, approached this Court by filing writ petition No. 1903/92. Initially the stay was granted. The employees intervening the petition, brought the real facts to the notice of the Hon''ble Division Bench of this court. Consequently, the stay order was vacated. Presently, as the contemners 1 and 2 expressed that they are not in a position to run the school and make the payments to the employees at the direction of the Deputy Director of Education, Nagpur, the teachers and other employees are running the Institution. The petitioner presently is working as In-charge Head Master of the Institution.

It is observed that many educational Societies which run Schools and Colleges have become breeding place of corruption, malpractices and internal bickering resulting in deprivation of rights and privilege of weak and unorganised groups or individual educational unemployed serving in the Institutions run by those Societies.

In the instant case if the orders of termination of the petitioner and other employees who had approached the learned School Tribunal by filing appeals, and not been stayed by the learned School Tribunal, probably they would have been over age enabling to get any Government Employment anywhere. If the conduct and attitude of the Management who are only self-centered to get recognisation and grant-in-aid without caring either for the welfare of the students or their employees, to reverse ugly trade a drastic stern action is desirable.

Shri Parsodkar, the learned counsel for the contemners 1 and 2 tried to pursue me to show leniency and accept unconditional apology tendered by the contemners as they are not in a position to make any payments and they have already closed the school. At the same time, he sought time to deposit Rs. 10,000/- only out of huge amount approximately to the extent of Rs. 1 lakh due to the petitioner. Considering the conduct and attitude of the contemners particularly instead of having pious object of imparting of the best education to the students they have played with the lives and career of the students and graduates and post-graduates employees, and as such they do not deserve any leniency. At this stage, it needs mention that the contemner No. 1 is studied up to the 7th standard while the contemner No. 2 up to S.S.C. std. only. By opening the school probably they thought to step in the shoes of Mahatma Jyotiba Fule and to induct themselves as social workers. The facts and circumstances demonstrate that their intention was otherwise. Under the circumstances, I do not agree with Shri Parsodkar, the learned counsel for the contemners. The contemners 1 and 2 deserve a stern action. Looking to the seriousness of the case, the contemners deserve maximum punishment prescribed under the contempt Act.

The contemner No. 1 Shri Vinayakrao Chindhuji Wankhede, R/o : Kohli - the Secretary of Rajaram Bapu Patil Shikshan Sansthan, Kohli and the contemner No. 2 Shri Chandarakant Vinayakrao Wankhede - the President of Rajaram Bapu Patil Shikshan Sanstha Kohli, both are sentenced to suffer simple imprisonment for 6 months and to pay a fine of Rs. 2000/- each. Both the contemners have to deposit the fine of Rs. 2000/- each in this court within a week, failing which they will have to suffer simple imprisonment of 2 months more. Rule issued in respect of the contemners 1 and 2 is made absolute.

The respondent No. 3 is a Head Master. He has no role to play regarding the appointments, payments and termination or dismissal of the employees, which is squarely the responsibility of the Management. Under the circumstances, Rule issued against him is discharged.

The respondents Nos. 4 and 5 are the Education Officer and the State of Maharashtra. They are joined as formal parties. In fact, there was no role to play either by the respondents. This is nothing but a harassment to the Government officials and, therefore, a cost of Rs. 500/- is saddled on the petitioner. The petitioner has to deposit Rs. 500/- towards the cost in the court within a week.

Shri Parsodkar, the learned counsel for the contemners 1 and 2 prayed for a week''s time to suspend the sentence and fine. Giving conscious thought to the submissions, as it is observed that the contemners have played with the lives and career of the students and the qualified youngsters and till this dated they have not paid any amount towards arrears of salary to the petitioner since the date of his termination i.e. 30-4-1990, under the circumstances this Court is not inclined to suspend the sentence and fine.

Order accordingly.