Bombay High Court
Arvind Tukaram Javle & Anr vs Gajendra Kashinath Shahane on 6 December, 2016
Bench: V.K. Jadhav
1 cri wp 363.2005.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 363 OF 2005
1. Dr. Arvind Tukaram Javle,
Age. 62 years, Occ. Doctor,
President of Khandesh College
Education Society, Jalgaon,
R/o. Near State Bank of India,
Zilla Peth, Jalgaon.
2. Sanjay S/o Laxman Patil,
Age. 35 years, Occ. Service,
Principal, I.T.I. (Indistrial
Training Institute), Khandesh
College Education Society,
Jalgaon, R/o. C/o Maniyar Law
College Complex, Jalgaon. ..PETITIONERS..
(Orig Accused Nos. 1 and 2.)
VERSUS
1. Gajendra Kashinath Shahane,
Age. 43 years, Occ. Service,
R/o. At and Post Rasalpur,
Tq. Raver, Dist. Jalgaon. ,
2 State of Maharashtra. ...RESPONDENTS..
(Resp. No. 1 is
Orig complainant)
...
Advocate for Petitioners: Mr. V T Choudhari
Advocate for Respondent no. 1: Mrs C.P. Kutti h/f P N
Kutti
APP for Respondent No. 2 : Mr M B Bharswadkar
...
CORAM : V.K. JADHAV, J.
Dated: December 06, 2016
...
2 cri wp 363.2005.odt
ORAL JUDGMENT :-
1. Being aggrieved by the order passed by Chief
Judicial Magistrate, Jalgaon dated 11.09.2003 in
Criminal Case No. 3670/2003 thereby issuing process
against the applicant- original accused nos. 1 and 2 for
the offence punishable under section 13 of the
Maharashtra Employees of Private Schools (Condition of
Service) Regulation Act, 1977, the original accused no. 1
and 2 have approached this court by filing present
criminal writ petition.
2. Brief facts, giving rise to the present criminal writ
petition are as follows :-
The respondent no.1 was appointed as an
Instructor in Industrial Training Institute run by
Khandesh College Education society. The said
appointment was on temporary basis. The last
appointment of respondent no.1 was for the period
5.08.1988 to 31.7.1989 and thereafter he was not
continued in service. The respondent no.1 preferred an
appeal before the School Tribunal, Nashik and the
School Tribunal by its order dated 30.04.1994 directed
3 cri wp 363.2005.odt
the Management to reinstate respondent no.1 on his
original post and to give him all the benefits of the post
attached to it from 31.07.1989 till he legally entitled to
continue the post. There was no specific direction for
payment of back wages. The respondent no.1 filed
Contempt Application no. 32/1994 and the member of
School Tribunal by order dated 13.05.1997 directed the
Education Officer, Zilla Parishad, Jalgaon and Deputy
Director of Education to deduct the dues of the
Respondent no. 1 from the salary grant due and payable
to the Management. Even though, there was no specific
direction for payment of back wages, Management had
paid certain amount to respondent complainant. On
31.07.1989 the trade wherein the respondent no. 1 was
serving as instructor was closed, his service came to be
terminated. The respondent no.1 filed Appeal
no.30/1994 challenging the said termination order. The
Member of School Tribunal partly allowed the appeal
and the Management was directed to reinstate the
respondent no.1 to any other post considering his
qualification and his other prayer for back wages was
came to be rejected. As per the directions respondent
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no. 1 was appointed as junior clerk in the Society's
College and he worked their till June 1999 and
thereafter remained absent without informing the
institution.
3. On 25.07.2003 respondent no. 1 filed criminal
case no.3670/2003 under section 13 of the
Maharashtra Employees of Private Schools (Condition of
Service) Regulation Act, 1977 for non-compliance of the
order passed by the School Tribunal, Nashik region,
Nashik in appeal no.03/1991. By impugned order dated
11.09.2003, Chief Judicial Magistrate issued process.
The petitioner filed application for recalling of the order
of process, however, the learned Chief Judicial
Magistrate has rejected the said application. Being
aggrieved by the same petitioners preferred criminal
revision application no.190/2004 and said criminal
revision application is dismissed on the ground that, in
view of the ratio laid down in Adalat Prasad Vs. Ruplal
Jindal and others reported in 2004 Vol. VI Supreme 371,
application for recalling of process is not maintainable.
Consequently petitioners have approached this court by
5 cri wp 363.2005.odt
filing present writ petition.
4. The learned counsel for the petitioners submits
that, the Member of the School Tribunal Nashik Region,
Nashik though directed to reinstate respondent no.1 on
his original post and, further directed to give all the
benefits of the post attached to it from 31.7.1989 till he
legally entitled to continue the post, there is no specific
order regarding back wages to be paid to respondent
no.1-complainant. Further, the said Khandesh College
Education Society had challenged the aforesaid order of
the School Tribunal, Nashik in appeal No.3/1991 by
filing writ petition No.43/1995. Learned counsel
submits that, this Court by the Judgment and order
dated 6.10.2016 partly allowed the writ petition and
directions of the School Tribunal to the extent of
payment of back wages is quashed and set aside.
Learned counsel submits that the petitioner on
instructions submits that, respondent no.1 has not
challenged this order and order passed in writ petition
no.43/1995. has now attained finality. Learned counsel
submits that, once the order passed by the School
6 cri wp 363.2005.odt
Tribunal is quashed and set aside to the extent of
payment of back wages, it will have to be assumed that
said order passed by the School Tribunal directing the
Management to pay back wages is not in existence from
very inception of the said order. Learned counsel
submits that on the backdrop of the order passed by
this Court in the aforesaid writ petition, continuation of
the proceedings in complaint Criminal Case
No.3670/2003 would be abuse of the court process.
5. Learned counsel for respondent-original
complainant submits that this Court in the aforesaid
writ petition no.43/1995 by order dated 6.10.2016 partly
allowed the writ petition and though the order passed by
the School Tribunal to the extent of payment of back
wages is quashed and set aside, further held that,
respondent no.1 complainant is entitled for any retiral
benefits till 7.6.1999 from the date on which he
abandoned the employment and considering that he
had joined service on 22.8.1996, the Management shall
make payment of said retiral benefits in the event
respondent/employee appears and makes a request to
7 cri wp 363.2005.odt
the Management by way of staking a claim. Learned
counsel submits that this Court has not set aside the
entire order passed by the School Tribunal and
therefore, the complaint filed by respondent no.1 is
maintainable. No interference is required.
6. On careful perusal of the contents of the
complaint, it appears that, the complainant has referred
a judgment and order passed by the School Tribunal in
Appeal No.3/1991. It has alleged that the School
Tribunal has decided said appeal in his favour by order
dated 30.4.1994 and thereafter, he had approached to
present petitioners who reinstated him on 17.6.1994
nominally but did not comply with the order passed by
the said School Tribunal. It has further alleged in the
complaint that, the petitioners have not extended him
all benefits including the payment of the back wages
and other benefits as directed by the School Tribunal.
Consequently, respondent no.1-complainant constrained
to file C.P. 32/1994. Respondent No.1-original
complainant has admitted that certain amount has
been paid by the Management, however, entire amount
8 cri wp 363.2005.odt
towards back wages is not paid. It has therefore alleged
that, the petitioners have not complied with the orders
passed by the School Tribunal and therefore liable to be
convicted under the provisions of Section 13 of the
Maharashtra Employees of Private Schools (Condition of
Service) Regulation Act. On the backdrop of these
allegations, on careful perusal of the order passed by
this Court in writ petition No.43/1995, it appears that,
the Management being aggrieved by the order passed by
the School Tribunal in Appeal No.3/1991 has preferred
the aforesaid writ petition. This Court by order dated
6.10.2016 partly allowed said writ petition and
directions of the School Tribunal to the extent of
payment of back wages is quashed and set aside. In the
light of the aforesaid order, the complaint Criminal Case
bearing No.3670/2003 does not stand and continuation
of the proceedings in the said case would be abuse of
the Court process. Hence, following order.
O R D E R
I. Criminal Writ Petition is allowed in terms
of prayer clause 'B' and 'C'.
9 cri wp 363.2005.odt
II. Rule is made absolute in the above terms.
III. Criminal Writ Petition accordingly disposed
of.
( V.K. JADHAV, J. )
aaa/- ig ...
