Shaikh Badarunnisa Begum Shaikh ... vs State Of Maharashtra And Ors.
2004 Latest Caselaw 132 Bom

JUDGMENT

Ranjana Desai, J.

1. In this petition, the petitioner has prayed for a declaration that a complaint under Section 13(1) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 ("the said Act" for short) is maintainable before the Judicial Magistrate, First Class. She has also prayed that necessary directions be issued to the concerned Magistrate to entertain and try her complaint.

2. The petitioner was working as Headmistress of Urdu High School run by respondents 1 and 2 at Osmanabad. Her services were terminated on 2-3-2002 in view of the enquiry conducted by the management. The petitioner filed Appeal No. 30 of 2002 in the School Tribunal at Aurangabad ("the Tribunal" for short), challenging the legality of the said order. The said appeal was allowed; the termination order was quashed and respondents 1 to 3 i.e. the State of Maharashtra, President of Shams Education Society, Rais Galli, Osmanabad and Secretary of the said Society respectively were directed to reinstate the petitioner in service with backwages by order dated 30-9-2003.

3. According to the petitioner, she made number of applications to the respondents requesting them that she may be allowed to join the duty in view of the judgment and order dated 30-9-2003 passed by the Tribunal. The Education Officer (Secondary), Zilla Parishad, Osmanabad also directed respondent 1 to comply with the said judgment. However, the petitioner was not allowed to join the service.

4. It is the case of the petitioner that respondents 1 and 2 have failed, without any reasonable excuse, to comply with the judgment and order of the Tribunal and, therefore, they have committed offence punishable under Section 13 of the said Act. The petitioner, therefore, filed a complaint before the Chief Judicial Magistrate, First Class at Osmanabad under Section 13 of the said Act. However, the learned Magistrate was of the view that the said complaint was not tenable. According to the petitioner, the learned Magistrate, therefore, heard her advocate on the maintainability of the said complaint and the jurisdiction of the criminal Court to entertain it. Since the learned Magistrate was of the opinion that the complaint was not maintainable, on 27-11-2003, the petitioner did not press the complaint at that stage. The learned counsel for the petitioner put an endorsement on the complaint "Not pressed at this stage." In view of this endorsement, the learned Magistrate disposed of the complaint by noting "Complaint not pressed, hence be returned to the complainant". According to the petitioner, the learned Magistrate was wrong in even questioning the maintainability of the complaint. He ought to have entertained the complaint. In this connection, he relied on Mohammad Salam Anamul Haque v. S.A. Azmi and Ors., 2001 (1) Mh.L.J. 249 and Vilas Shankarrao Deshmukh and Anr. v. S.A. Ghode, Principal, Navprabhat Vidya Mandir and Junior College, Thanegaon and Ors., 2001(1) Mh.L.J. 261. In view of the above settled legal position, the learned counsel urged that the concerned Magistrate be directed to entertain the complaint.

5. We are of the view that there is substance in the submissions of the learned counsel for the petitioner. In Mohammad Salam's case (supra), the petitioner therein (for convenience, hereafter referred to as "the employee") was in service of the respondent-school. His services were terminated by the management. Therefore, he filed an appeal before the Tribunal under Section 9 of the said Act. His appeal was allowed by the Tribunal. The management was directed to reinstate the employee in his original post with backwages. The management filed a writ petition in this Court. However, the order of the Tribunal reinstating the employee in service with full backwages was not stayed by this Court. Though the Tribunal had made an order in favour of the employee, the management did not comply with that order. The employee served a notice upon the management calling upon it to comply with the order of the Tribunal. However, the management did not do so and, therefore, the employee filed contempt petition under Section 10 of the Contempt of Courts Act, in this Court.

6. After considering several judgments on the point, a learned single judge of this Court held that the jurisdiction of the High Court to entertain contempt proceedings in an appropriate case under Section 10 of the Contempt of Courts Act cannot be ousted only because the order is capable of being enforced by some other mode. However, whether any mode for enforcing the order is available to the petitioner and whether the petitioner has availed of that mode and to what result, is a relevant consideration when the High Court considers the question of initiating action under the Contempt of Courts Act. In a case where effective remedy is provided by the statute for enforcing the order and the petitioner does not avail of that remedy and rushes to the High Court, the High Court would certainly be justified without there being anything else than mere disobedience of the order in declining to entertain the contempt petition. The learned Judge further observed that the existence of the remedy for enforcing the order made by the subordinate Court as also the question whether the petitioner has availed of that remedy is a relevant consideration.

7. The learned judge then considered Sections 9, 10, 12 and 13 of the said Act to find out whether orders of the Tribunal are executable and observed that in case the management does not obey the order of the Tribunal under Sub-section (3) of Section 11 of the said Act, the Tribunal can make recommendation to the State Government as regards payment to be made to an employee who has been directed to be reinstated by the Tribunal out of the dues that are payable by the Government to the management. After considering the relevant decisions of this Court, the learned Judge held that the Tribunal constituted under the said Act would be a "Court". He then referred to the decisions of this Court in Janata Janardan Shikashan Sanstha v. Vasant P. Satpute, 1986 Mh.L.J. 269 and Rasta Peth Education Society Pune, v. Pethkar Udhao Bhimashankar, 1994 Mh.L.J. 725, and held that a Civil Court can entertain a civil suit relating to the subject matter on which the appeal under Section 9 of the said Act can be filed before the Tribunal. Thus, the jurisdiction of the Civil Court and the Tribunal is concurrent. Under Section 9 of the Code of Civil Procedure ("the Code" for short), the Courts under the Code have jurisdiction to entertain all suits of civil nature. The dispute which is raised before the Tribunal under the said Act is a dispute of a civil nature and, hence, it can be safely said that the Tribunal for the purpose of deciding the appeals filed before it can be said to be Civil Court for the purpose of the Code and, therefore, an order made by the Tribunal is an order within the meaning of the Code. Since the order made by the tribunal is an order within the meaning of the Code, the provisions in the Code relating to execution of the decree are available for enforcing or executing the said order. Therefore, a person in whose favour an order of reinstatement with back wages is made can approach the Tribunal for execution of that order in the same manner in which the decree under the provisions of the Code is to be executed and in such a situation either the Tribunal may itself execute the decree or it may transfer the decree for execution to another Court in accordance with the provisions contained in the Code.

8. Since in this petition we are concerned with a complaint filed under Section 13 of the said Act, it is necessary to see how the learned Judge has dealt with Section 13 of the said Act. The learned Judge has observed that in spite of the availability of a remedy of approaching the Civil Court by way of a suit for redressal of the grievance of an employee, the legislature has enacted the said Act. Under the said Act, an employee can approach the Tribunal for the same relief. It must, therefore, be presumed that the legislature by enacting the said Act wanted to make available to an employee a more effective remedy. This intention of the legislature, according to the learned Judge, was clear from Sections 11(3) and 13 of the said Act which provides for prosecution of the management in case the management does not comply with the orders of the Tribunal. Since the employee in that case had not approached the Tribunal for execution of the order, the learned Judge did not entertain the contempt petition.

9. In Vilas Deshmukh's case (supra), this Court was considering similar question. Contempt petition was filed against the management of a school under Section 12 of the Contempt of Courts Act for non compliance of the direction issued by the Tribunal to reinstate the employee. This Court re-affirmed its view in Mohammad Salam's case (supra). In order to make the provisions of subsection (3) of Section 11 of the said Act meaningful and effective, this Court laid down certain procedure which should be followed by the State Government to secure implementation of the orders of the Tribunal. It then observed that in case it is found that there is any laxity in the approach of the concerned officer of the State Government without any just and sufficient cause that would be a case where this Court will have to invoke action under the provisions of the Contempt of Courts Act. Section 13 of the said Act was referred to as being another available remedy to an employee. It was observed that multi pronged action under the provisions of the said Act would act as a great deterrence for such management which intends disobeying the directions issued by the Tribunal. It was observed that an employee besides approaching the officer of the State Government can also lodge a formal complaint before the criminal Court of competent jurisdiction to initiate action under Section 13 of the said Act against the office bearers of the management. It was clarified that in all such cases it would be open to the aggrieved employee to approach the concerned officer of the State Government for getting the directions of the Tribunal enforced by taking recourse to the measures detailed by the Court in the said judgment including filing of prosecution under Section 13 of the said Act.

10. It can, therefore, be concluded that the Tribunal is a Civil Court within the meaning of the Code and the orders passed by the Tribunal are executable and can be executed by taking recourse to the provisions of the Code relating to the execution of a decree. A person in whose favour an order of reinstatement and payment of backwages is made can approach the Tribunal for execution of that order. It will be open to a person in whose favour an order of reinstatement and backwages is passed to approach the State Government requesting compliance of the said order. Since, it is possible for an employee to get the order executed by following the procedure laid down by this Court in Vilas Deshmukh's case (supra), unless that procedure is followed, this Court will not entertain a contempt petition filed by such an employee against the management. However if the State Government does not follow the procedure laid down by this Court in Vilas Deshmukh's case (supra) without any just or sufficient cause, this Court may, in a given case, entertain a petition invoking provisions of the Contempt of Courts Act against the management. However, prosecution under Section 13 is an independent provision and an employee can maintain a complaint against an erring management in addition to his adopting any other proceedings. Such a complaint will have to be entertained by the concerned Magistrate.

11. Now the question, in this case, will be whether the complaint which is not pressed by the petitioner can be now entertained. It is pertinent to note that in this case, the complaint is not dismissed. The learned Magistrate has only directed that the complaint be returned to the petitioner as he has not pressed it. Therefore, Section 203 of the Code of Criminal Procedure will not be attracted to this case. At this stage, it is also necessary to have a look at Section 26(b) of the Code of Criminal Procedure. Section 26(b) reads thus:

"26. Subject to the other provisions of this Code. --

(a)     X X X
 

(b)     any  offence  under any  other law  shall,  when  any  Court  is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by -(i)    the High Court, or
 

(ii)   any other Court by which such offence is shown in the First Schedule to be triable."  
 

12. Since it is not specifically stated as to in which Court a complaint under Section 13 of the said Act should be filed, First Schedule of the Criminal Procedure Code will have to be referred to. Section 13 provides for imprisonment for less than three years or fine. Therefore, as per the First Schedule, such a complaint can be entertained by any Magistrate. Therefore, the employee can lodge a formal complaint before a Magistrate of competent jurisdiction.
 

13. In view of the above, in the facts of this case, we are of the opinion that the learned Magistrate erred in even questioning the maintainability of the complaint. The complaint is clearly maintainable. We feel that this is a clear case of manifest error and miscarriage of justice. We will, therefore, have to allow the petition and direct the learned Magistrate to entertain the compliant. Hence, the following order.
 

14. The order dated 27-11-2003 passed by the Chief Judicial Magistrate, Osmanabad, returning the complaint to the petitioner is quashed and set aside. The learned Chief Judicial Magistrate, Osmanabad is directed to entertain the complaint and pass appropriate orders thereon.
 

15. We, however, make it clear that we have not expressed any opinion on the merits of the case.
 

16. Petition is disposed of in the aforestated terms.