HIRPARA MANJULABEN GOBARBHAI Vs. BHIKHALAL B SINJALIYA

JUDGEMENT

(1.) This petition is filed to take action under the Contempt of Courts Act for wilful non-compliance of the order passed by Gujarat Primary Education Tribunal on 21.2.91 in Application nos.195, 196 and 197 of 1988. Primary Education Tribunal by the above-referred order, ordered reinstatement with all back wages, setting aside the oral termination of 3.5.88. The Tribunal has also directed to pay arrears within three months and then to go on paying accruing salary.

(2.) Order of reinstatement became effective immediately on the next day of the order. Question in this case is whether non-compliance of the order of reinstatement in service amounts to contempt of court or not ? If the said order of reinstatement is not complied wilfully and without any justifiable cause, it may amount to contempt of court which passed the order, provided further that that court is a court subordinate to High Court as contemplated under sec.10 of the Contempt of Courts Act. However, question still remains to be considered whether the wilful non-compliance of the order of reinstatement would amount to recurring contempt for every day till it is complied with and thus can it be said to be a continuing breach of the order to constitute contempt of court so as to circumvent the provisions of section 20 of the Act. Answer to this, in our opinion, is in negative. Wilful non-compliance, if any, to constitute contempt of court, is the non-compliance of order of reinstatement. The said order of reinstatement is required to be complied with immediately from the next day. If the same is not complied with wilfully and/or without excusable cause, non-compliance may constitute contempt of court. Suppose non-compliance of order to reinstate is an omission which amounts to an act of contempt, can the defaulter be prosecuted for every day's non-compliance ? Will every day prosecution be not barred by principle of autrefois acquit or autrefois convict ? In our opinion, non-reinstatement does not give a fresh cause for every day of breach. If the said order is not complied with, when is it required to be complied with, if not on the next day of the order ? The act of omission if amounts to contempt and he is punished for the same, can he again be dealt with for contempt for non-compliance of that order for subsequent days ? If a person is held guilty of contempt of court for non-compliance of order of reinstatement, then he is punished and is directed to purge the contempt. The defaulter undergoes punishment but does not comply with direction to purge. Then, what shall be the consequential effect ? Should this process go on for every non-compliance and the defaulter be punished every time and directed to employ ? In our opinion, no. Reinstatement order if not carried out, the employee gets a right to salary and such salary can be recovered by process of law, be even by distress. Principle of service jurisprudence is that a contract of personal service cannot be specifically enforced. Employee would be entitled to salary for the same, as if he is in employment and the same can be recovered by way of execution against person or property or by revenue process, if permissible under law. However, defaulter cannot be prosecuted every day for each day's breach of non-compliance of order of reinstatement, as order of reinstatement does not stand renewed every day.Thus, non-compliance of order of reinstatement is not a continuing wrong. Hence, there is no recurring or continuing breach. Therefore, if one wants to take action under the Contempt of Courts Act for wilful defiance or disobedience of the order to reinstate, then action should be initiated in compliance of sec.20 of the Contempt of Courts Act. Sec.20 contemplates action to be initiated within one year. It reads as under:-

(3.) In this case, the order complained for non-compliance is of 21.2.91. This petition for taking action under the Contempt of Courts Act is filed on 8.12.92. The court has issued notice on 4.2.93. Even assuming that the court has taken cognizance on issuance of notice on 4.2.93, then also, it is without jurisdiction inasmuch as the application for taking action under the Contempt of Courts Act for breach of the order of reinstatement is barred by limitation. Thus the action is barred by limitation and, therefore, the court has no jurisdiction to entertain the same.