PRINCIPAL RAJNI PAREKH ARTS K B COMMERCE AND B C J SCIENCE COLLEGE KHAMBHAT Vs. MAHENDRA AMBALAL SHAH

JUDGEMENT

(1.) The above application, namely, Criminal Miscellaneous Petition No. 824 of 1986, has been filed by the Respondent in Criminal Appeal No. 50 of 1985, Mahendra Ambalal Shah, seeking certain directions. The directions sought are that the above Criminal Appeal should be dismissed and the Appellants should be directed to reinstate the Respondent forthwith in service and to issue a non-bailable warrant against the First Appellant and to detain him in jail until the Respondent is reinstated and the amount of back wages is deposited in the High Court and paid to the Respondent. A direction was also sought in the said application to issue a notice of contempt to the trustees of the Khambhat Taluka Sarvajanik Kelavani Mandal. Khambhat. The names of the said trustees were given in Annexure A to the said application. A prayer is also made in the said application to pass such other orders and directions, as may be necessary in the circumstances of the case. By its order dated March 5, 1986, this Court issued a notice of the said application to the said trustees.

(2.) The facts which have given rise to the said Criminal Appeal. require to be briefly stated. The Respondent Shah was working in the Rajni Parekh Arts, K. B. Commerce and B. C. J. Science College, Khambhat, as a non-academic employee. The said college is owned and run by the said Mandal. The said Shah was suspended on August 9, 1978, without assigning any reason. Under the relevant statutory provisions the order of suspension automatically came to an end on the expiry of six months from its date. On the expiry of this period, Shah approached the University of Gujarat and the University Syndicate directed the said Mandal to take him back into service. The management, however, not only refused to take Shah back but did not pay him the, subsistence allowance prescribed by the rules. Shah thereupon filed a writ petition, being Civil Miscellaneous Application No. 2424 of 1980 in the Gujarat High Court and as per the interim order passed in the said writ petition, the said Mandal paid to Shah the arrears of subsistence allowance and further agreed to pay to him the same until the said writ petition was finally disposed of. By its Resolution dated April 5, 1980, the Syndicate of the University directed the Mandal to take the respondent back in service. The said Mandal, however, refused to obey the said directions and instead on October 8, 1980, started disciplinary proceedings against Shah. According to Shah, he was not given an opportunity to defend himself. On the report submitted by the Inquiry Officer, the said Mandal passed a resolution to terminate the Respondent's services. It also approached the Vice-Chancellor of the University for his permission to terminate Shah's services. By an order dated January 22, 1982, the Vice-Chancellor refused to grant sanction to the termination of Shah's services. In spite of the refusal by the Vice-Chancellor to accord his sanction, the said Mandal by its letter dated February 26, 1982, informed Shah that his services were terminated with effect from that date and stopped paying him any subsistence allowance even though by the aforesaid order of the High Court it was to continue to pay the same until the final disposal of the said writ petition Civil Miscellaneous Application No. 2424 of 1982. By his letter dated April 18, 1982, addressed to Ranjitbhai Shastri, the Secretary of the said Mandal, the Vice-Chancellor called upon the said Mandal to take back the Respondent forthwith in service and further intimated to him that if the said directions were not complied with within a week, he would be compelled to make a report to the Executive Council of the University. Neither was any reply sent to the said letter nor was Shah taken back in service. Instead, on April 15, 1982, a complaint was filed before the Magistrate, First Class, Khambhat. under Sections 408, 477A and 467 of the Indian Penal Code, charging Shah with misappropriation of a sum of Rs. 3,399.40 by wrongly making credit and debit entries in the accounts and using the said sum for his benefit. The said complaint was registered as First Information No. M Case No. 21 of 1982 and the charge-sheet which was thereafter filed is registered at Police Station, Khambhat City, District Khera South, Charge-Sheet No. MK No.-/82 dated November 11, 1982. Shah thereafter filed an application before the Gujarat Affiliated Colleges Services Tribunal. Ahmedabad, challenging the said order of termination. By its order dated August 17, 1983, the Tribunal held that the order of termination was null and void and Shah had continued in service and would be entitled to receive full back wages. The Tribunal also directed the management of the said college to reinstate Shah in service forthwith and to pay him the full back wages from the date of suspension.

(3.) Meanwhile, the said Mandal through its Secretary, Ranjitbhai Shastri, filed a writ petition in the Gujarat High Court, being Special Civil Application No. 3786 of 1983, for a declaration that the termination of Shah's services by the said Mandal was valid and for setting aside the said order dated January 22, 1982, passed by the Vice-Chancellor. After, the said order was passed by the Tribunal, the said Mandal amended its said writ petition to challenge also the said order of the Tribunal. The said Mandal also applied for an interim stay of the operation of the Tribunal's order. The High Court by its order dated August 9, 1984, refused to grant any interim stay except with respect to fifty per cent of the wages. Meanwhile, Shah had. filed a contempt petition in the Gujarat High Court, being Miscellaneous Civil Application No. 156 of 1984, praying for appropriate action to be taken against the Principal of the said college and the President and Secretary of the said Mandal for having committed contempt of the Tribunal by wilfully committing a breach of the said order of the Tribunal. By its order dated December 31, 1984, the High Court held that it was a clear case of contempt and sentenced the Principal of the said college and the Secretary of the said Mandal to simple imprisonment for two months. The High Court further directed non-bailable warrants for the arrest of the Principal and the Secretary to issue after a fortnight in order to give, an opportunity to the said contemners to comply with the order of the Tribunal and to report compliance of the said order. The High Court further observed that in case this was done, it would be inclined to remit the sentence of imprisonment or substitute it by a sentence of fine and drop proceedings. Thereafter, an application was made to the High Court for suspending the sentence for six weeks in order to enable the contemners to obtain a stay order from this Court. By its order dated January 4, 1985, the High Court ordered the sentence to remain suspended for a period of six weeks. On that date, the advocate for the contemners stated to the Court that the said Mandal was going to reinstate Shah within one week and that Shah could report for duty on January 7, 1985. On the very same day, the advocate for the contemners requested the High Court to review the above order because according to the advocate, the statement about reinstatement was made by him without contacting the President of the said Mandal who was in Bombay and who when contacted stated that he would not authorize the said advocate to make such a statement. Accordingly, the High Court revoked its order passed earlier and passed a fresh order suspending the operation of its order dated December 31, 1984, for a period of six weeks on condition that within two weeks from January 4, 1985, reinstatement of Shah was effected with the right of the management to suspend Shah if it could legally do so.