Hon'ble Pankaj Naqvi,J.
1. Heard learned counsel for the appellant and Sri V.C. Mishra, learned Senior Counsel assisted by Sri K.N. Mishra, learned counsel for the respondent.
2. The Contempt Appeal (Criminal) No. 6 of 2011 is directed against an order dated 17.11.2011 by which the appellant has been summoned for the purposes of framing charge in Civil Misc. Contempt Petition No. 4684 of 2011. The connected Contempt Appeal No. 7 of 2011 is directed against an order dated 13.12.2011 passed in the same proceedings rejecting the application for recall of the aforesaid order.
3. The brief facts relevant for decision of this appeal are that Tewari Jawala Prasad Arya Kanya Inter College, Etawah is a duly recognized Institution imparting education till the Intermediate level. It is governed by approved scheme of administration where initially the term of Committee of Management was three years. In the elections of the Committee of Management held on 25.5.2000, Dr. Rakesh Mohan Mishra was elected as Manager and his signatures were duly approved. Meanwhile, the Committee of Management resolved to enhance the term of the Committee of Management from three years to five years and approached the Joint Director of Education together with the resolution. The Joint Director of Education approved the aforesaid amendment of the term of Committee of Management from three years to five years in August, 2002. Shri Surendra Bahadur Saxena challenged the recognition granted to the Committee of Management headed by Dr. Rakesh Mohan Mishra through a writ petition in this Court but the same was dismissed in January, 2004 and the consequential special appeal was also dismissed. The term of the Committee of Management having come to an end, fresh elections were held in May, 2005 after expiry of five years where also Dr. Rakesh Mohan Mishra was elected as the Manager and the said election was recognized and approved by the Regional Level Committee and his signatures were attested, again his rival Shri Saxena challenged the aforesaid order before the writ court, but the writ petition was dismissed in November, 2008. Again after expiry of the period of five years fresh elections were held in May, 2010 and again the signatures of Dr. Rakesh Mohan Mishra was attested as duly elected Manager on 27.8.2010. It appears that thereafter the Director passed an order dated 22.7.2011 setting aside the order of the Joint Director of Education enhancing the term of the Committee of Management from three years to five years. Based on this order the District Inspector of Schools, appellant before this Court, passed an order on 5.8.2011 cancelling the earlier order passed in favour of Dr. Rakesh Mohan Mishra and approved the signature of Shri Saxena.
4. Both these orders were subjected to challenge by Dr. Rakesh Mohan Mishra in Writ Petition No. 47272 of 2011. A learned Single Judge of this Court after hearing both the parties and so also the learned Standing counsel passed the following reasoned order dated 24.8.2011 staying the operation of the orders dated 27.8.2010 and 5.8.2011:
"The Committee of Management, Tewari Jwala Prasad Arya Inter College, Etawah (hereinafter referred to as the 'Institution') and Dr. Rakesh Mohan Mishra claiming himself to be its Manager have filed this petition for quashing the order dated 22nd July, 2011 passed by the Director of Education (Madhyamik) as also the consequential order dated 5th August, 2011 of the District Inspector of Schools, Etawah. Further relief that has been sought is that the respondents should not interfere with the functioning of the petitioner-Committee of Management.
It is stated that the Committee of Management of the Institution resolved to amend the term of the Committee of Management of the Institution from three years to five years and, accordingly, the Manager sent a communication dated 28th July, 2002 to the Joint Director of Education for granting approval and the Joint Director of Education by the communication dated 1st August, 2002 granted such approval.
On the basis of the direction issued by the Court on 3rd September, 2003 in Special Appeal No.242 of 2003, the Joint Director of Education, Kanpur Mandal, Kanpur, while deciding the dispute relating to the election of the Committee of Management of the Institution held on 21st May, 2000, after observing that the term of the Committee of Management of the Institution is five years, approved the constitution of the Committee of Management of the Institution with Dr. Rakesh Mohan Mishra as the Manager by the order dated 8th January, 2004. This order was assailed in Writ Petition No.2472 of 2004 which was dismissed by the judgment and order dated 28th January, 2004 against which Special Appeal No.149 of 2004 was filed which was also dismissed.
It is stated that after the expiry of five years, fresh elections were held in 2005 and Dr. Rakesh Mohan Mishra was again elected and his signatures were also approved by the District Inspector of Schools. However, respondent no.4 claimed that elections were held in the year 2003 and 2006 on the basis that the term of the Committee of Management was three years in which he was elected. The Regional Level Committee approved the election of 2005 held by the petitioner-Committee of Management on the basis that the term of the Committee of Management is five years. In the said election, Dr. Rakesh Mohan Mishra was elected as the Manager. This order was challenged in Writ Petition No.56382 of 2008 on the number of grounds including the ground that the term of the Committee of Management was only three years instead of five years. This contention was not accepted by the Court and the relevant observations are :
"The first submission of learned counsel for the petitioner has no force in view of the fact that the Joint Director of Education vide order dated 08.01.2004 has accepted that the term of the Committee of Management is five years. The same has also been confirmed by the Writ Court by the judgement and order dated 28.01.2004 passed in Writ Petition No. 2472 of 2004, against which the appeal of the petitioner has also been dismissed.
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As regards the third contention of the petitioner that no orders have been passed on the parallel elections held by the petitioner in the year 2003 and 2006, suffice it to say that the term of the Committee of Management has already been held to be five years and as such there was no occasion for holding parallel elections after three years of the earlier election, by which time the term had not even expired. As such, the said contention of the petitioner also does not have force."
The aforesaid Writ Petition No. 56382 of 2008 was, accordingly, dismissed by the judgment dated 5th November, 2008.
It is also stated that Dr. Surendra Bahadur Saxena and others filed Original Suit No.396 of 2009 in which the order dated 1st August, 2002 passed by the Joint Director of Education granting approval for amending the term of the Committee of Management of the Institution from three years to five years was also assailed.
The petitioners claim to have held fresh elections after the expiry of five years on 9th May, 2010 and papers were submitted to the District Inspector of Schools for granting approval. The District Inspector of Schools passed an order dated 27th August 2010 approving the election held on 9th May, 2010 and attested the signatures of Dr. Rakesh Mohan Mishra as the Manager.
The Committee of Management with respondent no.4 as Manager, however, filed Writ Petition No.64891 of 2010 with the allegation that against the order dated 1st August, 2002 passed by the Joint Director of Education, an appeal had been filed before the Director of Education which had not been decided. This petition was, accordingly, disposed of with a direction to the Director of Education to decide the appeal. It is as a consequence of the aforesaid direction that the Director of Education passed an order dated 22nd July, 2011 holding that the Joint Director of Education was not justified in passing the order dated 1st August, 2002. It is on the basis of the aforesaid order that the District Inspector of Schools passed the order dated 5th August, 2011 for cancelling the earlier order dated 27th August, 2010 by which the signatures of Dr. Rakesh Mohan Mishra had been attested as the Manager of the Committee of Management of the Institution.
Learned Senior Counsel for the petitioners has submitted that the Joint Director of Education had passed the order dated 1st August, 2002 on the basis of the order dated 30th March, 1998 passed by the Director of Education and, therefore, the appeal filed before the Director of Education was not maintainable. He has further submitted that in any view of the matter, the Director of Education could not have set aside the order dated 1st August, 2002 as it had repeatedly been affirmed in various decisions of the Court and that subsequent elections had also been held on the basis that the term of the Committee of Management of the Institution is five years and such elections had also been approved. It is also his submission that respondent no.4-Surendra Bahadur Saxena had filed Original Suit No.396 of 2009 in which the order passed by the Joint Director of Education was also assailed.
Learned Standing Counsel appears for respondent Nos. 1, 2 and 3. Sri Shashi Nandan, learned Senior Counsel assisted by Sri Arvind Srivastava, has made submissions on behalf of respondent No. 4.
Learned Senior Counsel for the respondents has submitted that the Director of Education committed no illegality in setting aside the order dated 1st August, 2002 passed by the Joint Director of Education and that Original Suit No.396 of 2009 had been withdrawn. It is also his submission that the order dated 1st August, 2002 had not been affirmed by the Court on merits and was, therefore, examined in appeal by the Director of Education.
It is not in dispute that the order dated 1st August, 2002 was passed by the Joint Director of Education approving the amendment made in the Scheme of Administration of the Institution for amending the term of the Committee of Management of the Institution from three years to five years. The election of the Committee of Management held in 2005 and 2010 on the basis that the term is five years had also been approved. Respondent No.4 had challenged the elections held in 2005 and 2010 on the number of grounds including the ground that the term of the Committee of Management of the Institution was only three years. This challenge failed and the writ petitions filed by him were dismissed. It is subsequently that respondent no.4 filed writ petition for a direction that the Director of Education may decide the appeal filed by him against the order dated 1st August, 2002 and it is on the basis of the direction so issued that the Director of Education passed the order dated 22nd July, 2011 after nine years setting aside the order dated 1st August, 2002. The matter, therefore, requires consideration.
The respondents may file the counter affidavit within a period of four weeks. Rejoinder affidavit, if any, may be filed within two weeks thereafter.
List this petition for admission/hearing in the week commencing 17th October, 2011.
In view of the submissions advanced by learned Senior Counsel for the petitioners, the operation of the order dated 22nd July, 2011 passed by the Director of Education (Secondary) as also the consequential order dated 5th August, 2011 passed by the District Inspector of Schools, Etawah shall remain stayed."
In pursuance thereof, the District Inspector of Schools attested the signature of Dr. Rakesh Mohan Mishra vide order dated 7.9.2011.
Aggrieved Shri Saxena preferred a Defective Special Appeal No. 918 of 2011 where the Division Bench passed the following order on 9.9.2011.
"As requested by learned counsel for the parties, put up on Wednesday i.e. 14.09.2011 as fresh along with the record of the W. P. No. 892 of 2003, W. P. No.10414 of 2003, W. P. No.33456 of 2000, W. P. No.45632 of 2000, Special Appeal No. 242 of 2003, W. P. No. 64891 of 2010, W. P. No.2472 of 2004, Special Appeal No.1556 of 2006, W. P. No.56382 of 2008, W. P. No.41245 of 2010 and Special Appeal No. 149 of 2004 for further argument.
Looking to the facts and circumstances of the case, in the meanwhile, it is provided that status quo existing as on today in respect of the Management of the Institution in question shall be maintained by the parties."
5. However, instead of keeping his hands off, the appellant herein, again attested the signature of Shri Saxena vide order dated 22.9.2011. This led to the filing of the aforesaid Contempt Application No. 4684 of 2011 against the appellant.
6. Upon issuance of notice, a short counter affidavit on behalf of the appellant was filed before the learned Single Judge. After hearing the parties and considering their respective stands, being prima facie satisfied it passed the impugned order summoning the appellant for framing of charges.
7. Both the parties with much vehemence have argued against each other whether this contempt appeal is maintainable either under Section 19 of the Contempt of Courts Act or under the High Court Rules providing for a intra court appeal.
8. However, since the appeal has already been admitted by a reasoned order, the Court refrains from examining the issue whether an appeal is maintainable against the impugned orders.
9. It is urged that the learned Single Judge has taken into consideration the order dated 28.9.2011 passed by the Division Bench for issuing notice against the appellant but has ignored the order dated 20.10.2011 by which the aforesaid order of 28.9.2011 was withdrawn. To fully appreciate this argument, it would be necessary to first notice the order dated 28.9.2011 which is to the following effect:
"It has been urged on behalf of the respondents no. 4 & 5 that despite this Court's order dated 9.9.2011 directing the respondents to maintain status-quo existing as on date, the District Inspector of Schools, Etawah counter signed the signature of respondent no. 4 after the order of this Court dated 9.9.2011 was passed which he could not have done. When the matter was taken up on 26.9.2011 Sri Arvind Srivastava, learned counsel appearing for the appellant was granted two days time to give reply to the affidavit filed on behalf of the respondents no. 4. However, no such affidavit has been filed nor he is present.
Sri V.C. Mishra, Senior Advocate appearing for the respondent no. 4 states that Sri Arvind Srivastava was personally informed in court no. 1 that the matter would be taken up before this Court. Despite that he is not present.
We are constrained to pass an interim order staying the operation of the order dated 22.9.2011 passed by the District Inspector of Schools, Etawah, annexure no. 13 to this affidavit.
Further let a notice be issued to the District Inspector of Schools, Etawah to show cause as to why a contemp proceeding should not be drawn against him for violating the Court's order dated 9.9.2011.
The rule is made returnable within four weeks."
10. A perusal of the aforesaid order shows that the Division Bench took cognizance of the order dated 22.9.2011 passed by the appellant and issued notice to him for apparent disobedience of the order dated 9.9.2011 passed by it. However, certain technical defects were pointed out and therefore, the Division Bench passed the following order on 20.10.2011:
"When various defects pertaining to description of the deponent and swearing clause in the affidavit filed in support of the application, being Civil Misc. Application No. NIL of 2011, filed on 25.9.2011, were pointed out, Sri V.C. Mishra, learned Senior Advocate appearing for the applicant-respondent seeks leave of this Court to withdraw the aforesaid application.
Prayer is allowed.
Application is, accordingly, dismissed as withdrawn with the liberty to file another application.
List the appeal for admission on 1st November, 2011.
However, the order dated 9.9.2011 directing to maintain status-quo shall remain operative till the next date of listing, meaning thereby the position existing in respect of the management of the institution in question as on 9.9.2011 is to be maintained by the parties till the next date of listing.
Subsequent order dated 28.9.2011 stands modified to that extent."
11. A perusal of both the orders read together shows that position on facts remained the same viz. that the order dated 22.9.2011 was prima facie in the teeth of the status quo order dated 9.9.2011 passed by the Division Bench. The learned Single Judge while passing the impugned order has considered the entire matter and only in the passing it has merely observed that the Division Bench had indicated that there was disobedience of its order dated 9.9.2011. It also cannot be said that the learned Single Judge was misled into passing the impugned order because when the order dated 20.10.2011 was brought to its notice by filing a recall application, the learned Contempt Judge refused to recall the order vide its order dated 13.12.2011. Even withdrawal of the order dated 28.9.2011 did not change the position on facts and it cannot be said that the Contempt Judge ignored the import of the order dated 20.10.2011. Accordingly, the argument of learned counsel for the appellant cannot be accepted.
12. It is then urged that the order dated 22.9.2011 was passed bonafidely in consequence of the order dated 9.9.2011 because Shri Surendra Bahadur Saxena was still managing the affairs of the Institution and therefore, to maintain the status quo he had to pass the said order. No doubt, under Section 16(A)(7) of the U.P. Intermediate Education Act, one of the factors to be considered while adjudicating upon the rights of the parties to manage the Institution is as to who is in actual control of the affairs of the Institution. But, this power vests with the Regional Level Committee and not with the District Inspector of Schools who is only one of the members of the Regional Committee. Further, there is no recital of this ground in the order dated 22.9.2011.
13. Assuming for a moment that the order dated 22.9.2011 was passed on the ground that Shri Saxena was managing the affairs of the Institution when the status quo order was passed on 9.9.2011, but such action of Shri Saxena would be totally illegal because under the orders dated 7.9.2011 only Shri Mishra was legally entitled to function as the Manager of the Institution and all the acts of Shri Saxena till the time of passing the order dated 22.9.2011 being illegal, could not have been recognized by law and the passing of the aforesaid order legalized his actions, which could never have been the intention of the status quo order of 9.9.2011.
14. The Apex Court in the case of M/s. Bharat Coking Coal Lts. Vs. State of Bihar and others [AIR 1998 SC 127] was considering the effect of expression 'status quo' granted by the Supreme Court that 'status quo' as prevailing before the High Court would prevail. It held that though the term 'status quo' is undoubtedly a term of ambiguity and at times gives rise to doubt but where the term 'status quo' is qualified by any point of time prescribed, the legal situation prevailing at that point of time is to continue. Again in the case of Satyabrata Biswas and others Vs. Kalyan Kumar Kisku and others [AIR 1994 SC 1837], the Apex Court was faced with a situation where there were allegation of violation of status quo order in respect of property. After relying upon the ratio in Bharat Coking Coal (Supra), it found that grant of lease even by a non party to the proceedings despite a status quo order, would amount to simple contempt. Even in the present case the term 'status quo' is qualified by the words 'existing as on today' in the order dated 9.9.2011. Therefore, examining the issue from any point of view, it cannot be said, that the learned Contempt Judge was not right in summoning the appellant for the purposes of framing of charge.
15. As already noted above, right from the year 2000 Shri Mishra was continuously being recognized as Manager of the Institution and his signatures were attested by the appellant himself, his conduct into hastily passing the order, raises great doubts on his motives. If bonafidely he was under some doubt, he ought to have approached the Division Bench for clearing his doubts, especially, when the matter was already fixed to be heard and there was no such urgency in passing the order in the background of the facts that the claim of Shri Saxena raised in 2003 and 2006 were never granted legitimacy.
16. No other point has been urged.
17. It has to be kept in mind that merely framing of a charge does not impinge upon any right of either of the parties and where a Court is prima facie satisfied that a triable case is made out, it would be within its jurisdiction to proceed to frame charges because contempt proceedings are quasi criminal in nature and it cannot proceed except after framing of charge. At the preliminary stage of framing charge, the Court is not obliged to thrash out the evidence and come to a definite conclusion because at that stage the Court is only to examine prima facie case which is always subject to deeper scrutiny after the parties have entered their respective defence. This opportunity the appellant can always avail.
18. In view of the reasons given hereinabove, the Court is not inclined to interfere at this stage and accordingly, both the appeals are dismissed.
19. However, any observation made hereinabove by this Court or by the Contempt Judge in its order dated 17.11.2011 and 13.12.2011 should be ignored while deciding the petition after hearing the parties and considering the evidence on record, on merits.
20. The appellant shall appear before the learned Single Judge on 25.9.2012 or on any date fixed by it for the purposes of framing of charge and the appellant would be at liberty to seek exemption for personal appearance after the framing of charge.
21. In the circumstances of the case, no order as to costs.
Order Date :- 27.7.2012 AK