Janseva Sevabhavi Sanstha ... vs Dhananjay Dhondiram Phad And ...
2016 Latest Caselaw 5279 Bom

                                          1




                                                                           
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                   
                            WRIT PETITION NO.9328 OF 2016

    1.     Janseva Sevabhavi Sanstha,
           Ghatsavli, Tq. and Dist.Beed,




                                                  
           Through its Secretary,
           Chandrakant S/o Shivajirao Phad,
           Age-31 years, Occu-Service,
           R/o Ghatsavli, Tq. and Dist. Beed,




                                         
    2.     Janseva Sevabhavi Sanstha,
           Ghatsavli, Tq. and Dist.Beed,
                              
           Through its President,
           Shakuntala W/o Shivajirao Phad,
           Age-55 years, Occu-Household,
                             
           R/o Ghatsavli, Tq. And Dist.Beed             -        PETITIONERS

    VERSUS

    1.     Dhananjay S/o Dhondiram Phad,
      


           Age-35 years, Occu-Nil,
           R/o Ghatsavli, Tq. And Dist.Beed,
   



    2.     The Education Officer (Secondary),
           Zilla Parishad, Beed.                        -      RESPONDENTS

WITH WRIT PETITION NO.9332 of 2016

1. Janseva Sevabhavi Sanstha, Ghatsavli, Tq. and Dist.Beed,

Through its Secretary, Chandrakant S/o Shivajirao Phad, Age-31 years, Occu-Service, R/o Ghatsavli, Tq. and Dist. Beed,

2. Janseva Sevabhavi Sanstha, Ghatsavli, Tq. and Dist.Beed, Through its President, Shakuntala W/o Shivajirao Phad, Age-55 years, Occu-Household,

khs/SEPT.2016/9328-d

R/o Ghatsavli, Tq. And Dist.Beed - PETITIONERS

VERSUS

1. Shankar S/o Nivrutti Tambade, Age-40 years, Occu-Nil, R/o C/o B.G.Tambde,

Near Canada Bank, Dhanora Road, Beed,

2. The Education Officer (Secondary),

Zilla Parishad, Beed. - RESPONDENTS

Mr.S.S.Jadhavar, Advocate for the petitioners. Mr.R.I.Wakade, Advocate for respondent No.1.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 15/09/2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. The petitioner is aggrieved by the order dated 04/08/2016 and

22/08/2016 passed by the School Tribunal, Aurangabad in

Misc.Appl.No.29/2015 and 28/2015 respectively. Respondent No.1 in

both these petitions are identically placed employees.

3. Earlier, the School Tribunal has delivered its judgment dated

24/04/2015 in Appeal No.26/2012 and 27/2012 respectively by

khs/SEPT.2016/9328-d

which respondent No.1 in both these petitions have been granted

reinstatement with continuity and 30% back wages. Their

terminations were set aside. The petitioner/Management in both

these petitions had approached this Court in WP No.2775/2016 and

12568/2015 respectively for challenging the judgment of the Tribunal

in favour of these two employees. By judgment dated 03/08/2016,

this Court dismissed both the petitions and sustained the judgments

of the Tribunal.

4. Both the respondents/employees have preferred their Misc.

Application Nos.29/2015 and 28/2015 seeking execution of the

judgment of the Tribunal u/s 13 of the M.E.P.S.Act. By the first

order dated 04/08/2016, the Tribunal appointed a practicing

advocate as the Court Commissioner to overseas the joining of the

respondents/employees in service with the Management. The

petitioners moved an application below Exh.24 and 25 respectively

praying for recalling of the order dated 04/08/2016 as a Court

Commissioner can not be appointed by the School Tribunal. By the

impugned order dated 22/08/2016, both these applications have

been rejected.

5. Mr.Jadhavar, learned Advocate for the petitioner/Management

khs/SEPT.2016/9328-d

has strenuously criticized the impugned orders by raising two issues.

Firstly, that since Section 13 of the MEPS Act is silent as to which

Authority should entertain an application for execution, the School

Tribunal would not have jurisdiction since the punishment

prescribed u/s 13 can be awarded only by a Court which is vested

with jurisdiction under the Code of Criminal Procedure. Secondly,

since the misc. applications for execution were not tenable, the

School Tribunal could not have exercised its jurisdiction and should

have returned the files to the employees. Alternatively, it could have

transferred the files to the learned Magistrate of the Criminal Court.

6. Mr.Jadhavar has placed reliance upon the judgment of the

learned Division Bench of this Court in the matter of Shaikh

Badarunnisa Begum Shaikh Abbas Versus State of Maharashtra and

others, [2004(2) Bom.C.R. (Cri.) 472 = [2004(2) Mh.L.J.407] and the

judgment of the learned Single Judge in the matter of Shriprakash

Chandmal Bora and another Vs. Mutyal Vilas Rambau [2011 (suppl)

Bom.C.R. 563].

7. Mr.Wakade, learned Advocate appearing on behalf of both the

respondents/employees, submits that the order of the Tribunal dated

04/08/2016 has already been complied with and fully implemented.

khs/SEPT.2016/9328-d

The Court Commissioner has submitted a report that the

Management declined to permit the respondents/employees from

joining duties on the pretext that its' two petitions, challenging the

judgment of the Tribunal u/s 9 of the MEPS Act, were pending. He,

therefore, submits that it is undisputed that the petitioner

/Management declined to allow the employees to report for duties.

8.

I find from the judgment of this Court dated 03/08/2016 that

both the petitions filed by the petitioner/Management were dismissed

on the said date. The order of the Tribunal allowing appointment of a

Court Commissioner was passed on 04/08/2016 which is a day after

the dismissal of the petitions filed by the Management.

9. Even in these proceedings, learned Advocate for the petitioners

submits on instructions that since there is a possibility of an

amicable settlement between the parties, the respondents/employees

can not be reinstated without the terms of settlement, being placed

on record.

10. Mr.Wakade submits on instructions that only 30% back wages

have been granted by the Tribunal. The employees had put forth a

proposal that they should be reinstated forthwith and their proposals

khs/SEPT.2016/9328-d

for regularization and permanent approval be forwarded to the

Education Officer. After the permanent approval is accorded, the

respondents/employees would waive their back wages. Further

condition was that they should be paid their regular salaries at par

with comparable employees. He submits that owing to these

conditions, the Management did not settle the matter and the

employees apprehend that the Management would be vindictive.

11. In so far as the first contention of Mr.Jadhavar is concerned,

the said issue is no longer res-integra. Paragraph Nos.10,11,12 of the

Shaikh Badarunnisa judgment (supra) reads as under :-

"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 back wages 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

khs/SEPT.2016/9328-d

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."

khs/SEPT.2016/9328-d

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."

12.

It is, therefore, clear that this Court has ruled that u/s 13, the

original appellant may either pray for simplicitor execution of the

judgment of the Tribunal or may seek imposition of punishment u/s

13. Section 13 of the M.E.P.S. Act reads as under :-

"13. Penalty to Management for failure to comply with

Tribunal's directions :

(1) If the Management fails, without any reasonable excuse to comply with any direction issued by the Tribunal under Section

11 or any order issued by the Director under Clause (a) of Sub- section (1) or Sub-section (4) of Section 4A within the period specified in such direction, or as the case may be, under Sub-

section (5) of Section 4A or within such further period as may be allowed by the Tribunal or Director, as the case may be, the Management shall, on conviction, be punished,

(a) for the first offence, with imprisonment for a term which may extend to fifteen days or with fine which may extend to fifty thousand rupees or with both: Provided that, in the absence of

khs/SEPT.2016/9328-d

special and adequate reasons to the contrary to be mentioned in the judgment of the Court, the fine shall not be less than ten

thousand rupees and

(b) for the second and subsequent offences, with imprisonment

for a term which may extend to fifteen days or with fine which may extend to seventy five thousand rupees, or with both :

Provided that, in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, the

fine shall not be less than twenty thousand rupees.

(2) (a) Where the Management committing an offence under this

section is a society, every person, who at the time the offence was committed, was in charge of, and was responsible to the society, for the conduct of the affairs of the society, as well as

the society, shall be deemed to be guilty of the offence and shall

be liable to be proceeded against and punished accordingly;

Provided that, nothing contained in this Sub-section shall render

any person liable to the punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of the offence.

(b) Notwithstanding anything contained in Clause (a) where the

offence has been committed by a society and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any president, chairman, secretary, member, Head or manager or other officer or servant of the society, such president, chairman, secretary, member, head or manager or other officer or servant concerned

khs/SEPT.2016/9328-d

shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly."

13. The learned Division Bench in the case of Shaikh Badarunnisa

(supra) has relied upon the judgment delivered in the matter of Vilas

Shankarrao Deshmukh Vs. S.A.Ghode, Principal, Navprabhat Vidya

Mandir and Junior College, Khadegaon [2001(1) Mh.L.J.261]. The

learned Single Judge of this Court in Shriprakash Chandmal Bora

(supra) has observed in paragraph No.6 and 9 as under :-

"6. In (Mohammad Salam Anamul Haque Vs. S.A.Azmi and others) reported in 2001 (Supp.2) Bom.C.R. 37 : 2000(II) C.L.R.

287, this Court has taken a view that for breach of an order of

the School Tribunal, direct contempt petition in the High Court

cannot be filed but School Tribunal is empowered to execute the order. It was further held that the order of the School Tribunal is like an execution of a decree passed in his favour under Order

21, Rule 10 of Code of Civil Procedure. The learned Counsel for the respondents 3 and 4 relying upon another judgment of this Court rendered in (V.S.Deshmukh Vs. S.A.Ghode) reported in

2001(2) Bom.C.R. 116 (N.B.) : 2001(1) Mh.L.J. 261 contended that School Tribunal has no jurisdiction of imposing a penalty which can be imposed only by a Competent Court of criminal jurisdiction. In the said judgment a Single Judge has taken the view that the forum of filing of Complaint under section 13 of the M.E.P.S.Act, is a Criminal Court of competent jurisdiction. At the first blush there may appear to be conflict between views taken

khs/SEPT.2016/9328-d

in the aforesaid judgments. After careful analysis, I am of the opinion that there is no conflict between the two judgments ;

under section 13 aggrieved teacher has two remedies (1) he can file a criminal complaint for punishment and (2) he can file a execution petition. If he prays for punishment, then he has to go

to the Criminal Court, but if he wants to simply execute the order then as held in the case of Mohd. Salam Anamal Haque (supra) he can file the execution petition before the School Tribunal.

Directing the person to pay a penalty is one of the methods of

execution. For example when in execution of a money decree, Civil Court orders detention of a judgment debtor in a civil

prison, the Court is not inflicting a punishment but is executing a decree. Viewed thus, the order of payment of Rs.5000/- made by the School Tribunal can be construed as an order in execution

of its previous order.

9. It is made clear that the remedy of filing of application of execution order passed by the School Tribunal is different than invoking Section 13 of the M.E.P.S.Act for punishment. We need

to respect to the provisions, as well as, the procedure prescribed under the M.E.P.S.Act for execution, as well as, for punishment if any, so provided separately."

14. The contention of Mr.Jadhavar, therefore, deserves to be

rejected in the light of the settled position in law and as such, the

execution proceeding u/s 13, seeking simplicitor execution of the

judgment of the Tribunal is maintainable as the reliefs claimed are of

khs/SEPT.2016/9328-d

civil nature and the Tribunal would therefore be exercising

jurisdiction of the Civil Court. Consequentially, the second

submission of Mr.Jadhavar also stands rejected as there is no

necessity in such circumstances for the Tribunal to return the Misc.

Applications to the respondents.

15. In so far as the jurisdiction of the Tribunal to appoint a Court

Commissioner for executing its judgment is concerned, there can be

no dispute that the Tribunal cannot abdicate its powers and vest the

same in a Court Commissioner to ensure the execution of its

judgment. In the impugned orders, I do not find that the School

Tribunal has abdicated its powers in favour of the Court

Commissioner. Though the Tribunal has observed that the Court

Commissioner is directed to reinstate the petitioner, I find that the

said construction of the sentence is not appropriately worded.

Similarly, the Court Commissioner could not have been directed to

intimate the concerned Police Station that he was proceeding to get

the order of the Tribunal implemented. Nevertheless, this issue need

not be dealt with since the petitioner has declined to reinstate the

respondents / employees and the said report is already placed on

record.

khs/SEPT.2016/9328-d

16. In the light of the peculiar facts above, both these petitions are

disposed of by recording that the direction of the School Tribunal in

permitting the Court Commissioner to carry out the work of

reinstatement with advanced intimation to the concerned Police

Station, could not have been issued. It needs mention that when the

Education Officer is a party to the proceedings, the Tribunal should

avoid the appointment of a Court commissioner and instead should

take the assistance of the Education Officer to find out whether the

Management is implementing the judgment of the Tribunal in letters

and spirit. Subsequent to the said exercise, the Tribunal could then

proceed to decide the misc. applications u/s 13.

17. As such, the School Tribunal shall, therefore, proceed with

both the appeals on their merits and by considering the fact that the

petitioner/Management as on date has not shown any inclination to

implement the judgment of the Tribunal.

18. Rule is discharged.

( RAVINDRA V. GHUGE, J.)

khs/SEPT.2016/9328-d