Bombay High Court
Dattatraya vs The State Of Maharashtra on 21 November, 2012
Bench: A. H. Joshi, S.P. Deshmukh
1 CRIWP-241.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
CRIMINAL WRIT PETITION NO. 241 OF 2012
1. Dattatraya s/o Pandhrinath Kamble
age 43 years, occupation : service,
r/of Shirol, Wanjarwada, Tq. Nilanga,
Dist. Latur.
2. Rajaram /o Vithoba Kadam
age 71 years, occupation : Nil,
r/o Shirol, Wanjarwada, Tq. Nilanga,
Dist. Latur. Petitioners
versus
1. The State of Maharashtra,
through Police Inspector,
Shirur Anantpal Police Station,
Tq. Nilanga, Dist. Latur.
2. Dattatraya s/o Govindrao Jadhav
age 46 years, occup. service,
r/o Udgir, Tq. Udgir, Dist. Latur. Respondents
----------
Mr. A. A. Nimbalkar, Advocate holding for Mr. V. D
Salunke Advocate for Petitioners.
Mrs. V.A. Shinde, A.P.P. for Respondent No. 1-State.
Mr. S.S. Mahindrakar, Advocate, holding for Mr. R. J.
Nirmal,Advocate for Respondent No. 2.
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2 CRIWP-241.12
CORAM : A. H. JOSHI, AND
SUNIL P. DESHMUKH, JJ.
DATE : NOVEMBER 21, 2012
ORAL JUDGMENT (PER : A. H. JOSHI, J.)
1. Rule. Rule is made returnable forthwith. Heard
by consent.
2.
Heard both sides. Perused the record.
3. For convenience, the petitioner No. 1 and
Respondent no. 2 are referred to with their name.
4. Dattatraya Kamble (petitioner No. 1) was
promoted by the management as Head Master by order
dated 7.1.2009. The Education Officer approved the
said promotion by order dated 1.4.2009.
5. Dattatraya Jadhav (Respondent No. 2) had
challenged the said promotion by filing appeal, being
appeal No. 12 of 2009 before the School Tribunal,
Aurangabad. In the said appeal, he had raised against
Dattatraya Kamble, the pleas of fraud, fabrication of
documents etc. which he has again raised in the
3 CRIWP-241.12
F.I.R. subject matter of challenge in present writ
petition.
6. The contentions raised by Dattatraya Jadhav
(Respondent No. 2 herein) as appellant before the
School Tribunal were that :-
(a) Dattatraya Jadhav (Respondent No. 2 )-the
Appellant before Tribunal had entered the
employment of the school run in the name of
Dr. Babasaheb Ambedkar Vidyalaya, on
17.5.1988.
(b) Dattatraya Kamble (present petitioner No. 1)
who was respondent No. 3 before the School
Tribunal had entered employment on 1.10.1988
which is after the date of entry of
Dattatraya Jadhav.
(c) Therefore, Dattatraya Kamble was junior to
the appellant Dattatraya Jadhav, and
therefore while Dattatraya Kamble was
promoted, wrongly / illegally appellant
Dattatraya Jadhav was superseded.
(d) The fact that appellant Dattatraya Jadhav
was senior was not only suppressed by
Dattatraya Kamble, but he also forged and
fabricated the seniority list to couch his
false claim.
4 CRIWP-241.12
(e) The forgery was done in seniority list by
Dattatraya Kamble wherein he has entered
false dates of entry of Dattatraya Kamble
and Dattatraya Jadhav in employment.
7. The appeal No. 12 of 2009 was decided by the
School Tribunal by the judgment and order dated
29.10.2009 and the appeal was dismissed. Dattatraya
Jadhav is aggrieved by said judgment and he has
approached this court and has filed a writ petition
which is admitted.
8. During pendency of writ petition filed by
Dattatraya Jadhav (Respondent No.2), on 3.1.2011 he
has filed a Criminal Case bearing No. 2 of 2011 in
the court of Judicial Magistrate, First Class,
Nilanga. In that case, the learned Magistrate, F.C.
Shirur Anantpal passed order on 14.2.2011 and
directed the police to take cognizance under Section
156 (3) of the Code of Criminal Procedure. Thereupon,
offence was registered as Crime No. 116 of 2011 on
5.12.2011 in Shirur Anantpal Police Station in
District Latur for offences under Sections, 463, 464,
465, 467, 471 and 420 read with Section 34 of the
Indian Penal Code.
5 CRIWP-241.12
9. Petitioners have approached this court for
quashing said First Information Report and Crime No.
116 of 2011 dated 5.12.2012.
10. In report registered as Crime No.116 of 2011,
Dattatraya Jadhav has alleged against present
petitioners/accused acts of fraud, forgery and
fabrication of record. Relevant averments contained
in the complaint/FIR read as follows:-
" 9 ........................................................................................
vkjksih ua- 1 o 2 us nks?kkauh feGqu vkjksih ua 1 ;kl eq[;k/;kidkps in
feGfo.;klkBh b-l- 2008-2009 ;k lkykr 'kkGsrhy loZ f'k{kdkaph lsok ts"Brk ;knh
r;kj dsyh o R;koj fQ;kZnh lksMwu lxG;kP;k lg;k ?ksrY;k o lg;k ?ksÅu uarj
izFke use.kqdhP;k [kksV;k rkj[kk gkrkus fyghY;k o R;k fyghr vlrkauk v-adz- 5
ofjy fQ;kZnhP;k ukokiq<s fn- [email protected]@1988 P;k ,soth fn- [email protected]@1991 gh izFke
use.kwdhph rkjh[k ueqn d:u rh dkxni=s f'k{k.kkf/kdkjh o 'kkGk
U;k;kf/kdj.k ;kaP;k dk;kZy;kr nk[ky d:u Lor% vkjksih u-a 1 us eq[;k/;kidkps
in feGfoys v'kkizdkjs vkjksih ua-1 o 2 ;kauh vkjksih ua-1 gk eq[;k/;kid inkl
yk;d ulrkauk rks yk;d vkgs gs nk[kfo.;k djhrk [kksVh dkxni=s r;kj d:u rks
'kkldh; dk;kZy;kr [kjh vkgsr vls Hkklowu o ykrwj ;sFkhy 'kkGk U;k;kf/kdj.kkr
nk[ky d:u eq[;k/;kid in feGowu o vkjksih ua-1 us 'kklukdMwu [kksVs i.kkus
f'k"ko`Rrh feGowu IPC d 463] 464]467]471]420 izek.ks xqUgk dsysyk vkgs-
10½ ---------- uez fouarh dh] v lnj dkeh vkjksih uh oj mYys[khysY;k izek.ks IPC
d 463] 464]465] 467] 471] 420 izek.ks tks xqUgk dsysyk vkgs- R;kph pkSd'kh gksmu
vkjksihauk dMd 'kklu dj.;kr ;kos---------"
(quoted from pages 26/27 of petition paperbook)
6 CRIWP-241.12
11. It is evident that grievance of Dattatraya
Jadhav-the complainant, is about illegal supersession
and forgery done by the accused persons for that
purpose.
12. It is seen from the record annexed to the
petition that the controversy has germinated out of a
service matter and a dispute as regards seniority.
13. Therefore, it is necessary to understand and
appreciate respective case before the Tribunal and
certain admitted and disputed facts.
14. The facts as pleaded by Education Officer are
recorded in paragraph 8 of judgment of School
Tribunal. Those do reflect admitted/un-controverted
facts. Relevant portion is seen at pages 37 and 38
of paperbook. It is quoted below for ready
reference:-
"8. By filing written say at exh-8 respondent
No. 4 has resisted this Appeal on the ground that
approval was granted to the appellant in the pay
scale of untrained teacher for the academic year
1988-89, 1989.90 and 1990-91.
7 CRIWP-241.12
Appellant has completed his B.Ed. course in
the academic year 1991-92. He has passed B.Ed.
course on 8.5.1992. Therefore, he is continued as
trained teacher in the school since the academic
year 1992-93. Since acquiring trained
qualification the name of the appellant is
mentioned in category 'c' of Schedule 'B'.
Respondent No. 3 was in service as untrained
teacher in the academic year 1989-90. He has
completed B.Ed. in the year 1990-91. He has
passed B. Ed. on 11.5.1991. After passing of
B.Ed. his service is approved as trained teacher
for each academic year 1991-92, 1992-93, 1993-94,
1994-95, 1995-96 & 1996-97. Permanent approval
is granted in his favour by order dated
11.6.1997.
Since 27.6.1991 respondent No. 3 is in
service as trained teacher. Therefore, his name
is mentioned in category 'c' in seniority list.
Therefore, respondent No.3 is the seniormost
Assistant Teacher as per Rule-12 and Sch-'F' of
M.E.P.S. Rules and various Government
Resolutions. ....."
(quoted from pages 37 and 38 of the paperbook of
the petition. Subparagraphing is done for
convenience of reference and emphasis)
8 CRIWP-241.12
15. In the judgment of school Tribunal a finding as
regards fact of seniority inter-se based on acquiring
degree of B.Ed. is recorded. This finding is recorded
by the Tribunal in relation to point No. 2 framed in
the judgment of the Tribunal. It is seen in paragraph
No. 19 of the judgment. Relevant portion is seen
at page 52 of paperbook of the Writ petition, and is
quoted below:-
"
...........................................
There is no dispute between the parties that the
respondent No.3 acquired training qualification
on 27.6.1991 whereas the appellant acquired his
training qualification on 11.6.1992. Thus, the
respondent o. 3 came in category 'c' of sub
clause 2 of Sch-'F' on 27.6.1991 and the
appellant came in the same category on 11.6.1992.
Therefore, respondent no. 3 is senior than the
appellant."
16. The fact that the complainant-appellant was
untrained teacher till 1992 is not disputed by
complainant-present Respondent No.2 any where.
17. It is seen that the date of acquiring degree of
B.Ed. by Dattatraya Kamble (petitioner No.1) is
11.5.1991, and by Dattatraya Jadhav (Respondent No.2)
9 CRIWP-241.12
is 8.5.1992. These dates being factual is confirmed
from Exhibit 'D' at page 28 annexed to the petition
and relied upon by Dattatraya Jadhav as well. Thus,
the factual aspect of these dates and its correctness
is not disputed by Respondent No.2.
18. Moreover, in the reply filed in this Court as
well, any dispute as regards these facts if being
contrary to record etc. are not disputed. Now it is
evident that entire factual background is undisputed
and, therefore, entire foundation of the F.I.R. that
though Dattatraya Jadhav-the complainant entered the
employment on 17.5.1988, Dattatraya Kamble-the
accused has by forgery shown complainant's date of
entry to be 26.7.1991, reveals to be tricky plea, and
it is not the whole truth, on whatever the
complainant himself shows.
19. It is seen that seniority with reference to
acquiring qualification of B. Ed. degree, was the
crux of the matter before School Tribunal. The
School Tribunal is the exclusive forum of civil
jurisdiction over the service matters between
10 CRIWP-241.12
Teachers of private school and the employer. Finality
is attached by law to its judgment by the statute.
The fact finding done by School Tribunal is not open
to challenge before any other court or Tribunal, much
less in investigation and trial of an offence before
a Criminal Court barring certain inbuilt provisions
in the statute or criminal law.
20.
Dattatraya Jadhav-the complainant- is a person
who lost before the School Tribunal. Now he says
in his affidavit in reply filed in this court that
the judgment of the School Tribunal was procured by
fraud. This plea is raised without applying for
review before School Tribunal on the ground that the
judgment of tribunal was a product of fraud. He
claims that fraud is played due to false documents,
namely, false seniority. Seniority cannot be false,
it can be erroneous or illegal at the most.
Moreover, the foundation of said plea as regards
falsehood is Respondent No.2's erroneous notion that
his date of entry in employment as unqualified
teacher is liable to be counted for seniority as
Assistant Teacher for promotion to the post of Head
Master.
11 CRIWP-241.12
21. He also claims that resolutions are also false
and forged. Since seniority based on B.Ed.
qualification was to be the decisive factor, all other
points including resolutions turn to be irrelevant.
22. Entire foundation of the FIR is thus totally
erroneous notion and belief of complainant about law
and rules as regards seniority.
23.
Once it is found by a court or Tribunal of civil
jurisdiction that decisive factor was seniority based
on the date of acquiring qualification of B.Ed.
degree, the question as to whether service record is
forged in respect of date of entry in service in
relation to the complainant in the employment before
acquiring B.Ed. degree, is a fact which is totally
irrelevant.
24. Thus, it is duly demonstrated by the petitioner
that present is one illustrative rare amongst rarest
cases, where it is shown on record by the petitioners
that the quashing of FIR can be done and is liable to
be done, barely upon reading the record annexed to
the petition and without investigation whatsoever.
12 CRIWP-241.12
25. The facts which have surfaced are undisputable
and undeniable being admitted and proved from record
and confirmed by a quasi judicial forum in its
finding. There is no warrant for further fact
finding and investigation. Nothing can be achieved
from further investigation except satisfaction of
personal erroneous grudge and a baseless grievance.
26. In the result, all other questions raised by the
complainant-Respondent No. 2 turn out to be sheerly
imaginary. The petitioners have fully demonstrated
that the complaint is actuated with malafides, as
there is no genuine grievance, rather the vexatious
intentions are writ large.
27. Present FIR is one rare illustration of it being
lodged sheerly to vindicate personal grievance and
and is seen to be one rare amongst rarest case where
it can be held in summary inquiry in writ
jurisdiction that FIR is actuated with malafides.
28. In these premises, we are satisfied that present
is one rare amongst rarest cases where malafides are
proved beyond any room for doubt, being based on
undisputed facts which have attained finality in the
13 CRIWP-241.12
form of judgment of an authority having competent
jurisdiction under the statute.
29. Admittedly, complainant has lost before the
School Tribunal and his writ petition is pending
before the High Court. The complainant hopes to
demonstrate in Writ Petition filed by him in the High
Court that his claim as to seniority is genuine.
Merely, on such hope, the complainant cannot be
allowed to pursue a totally baseless FIR.
30. We, therefore, allow this petition. Rule is
made absolute in terms of prayer clauses (C) and (D).
31. It is made clear that observations made in this
judgment will not come in the way while deciding
Writ Petition No. 1437 of 2009.
(SUNIL P. DESHMUKH, J.) (A.H.JOSHI, J.)
pnd
