Bombay High Court
Prakash Bhaskarrao Nandurkar And ... vs Ku. Saroj Panditrao Datir And ... on 8 November, 2017
Bench: A.S. Chandurkar
APL391.15.odt 1/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION (APL) NO.391 OF 2015
APPLICANTS: 1. Prakash Bhaskarrao Nandurkar, Aged
about 60 years, Secretary of Satchikitsai
Prasarak Mandal Shri Satya Sai Vidhya
Nagari, Yavatmal, Tq. and District
Yavatmal.
2. Sau. Jaishree Omprakash Mishra, Aged
about 45 years, Incharge, Head Mistress
of Dr. Nandurkar Vidyalaya, Shri Satya
Sai Vidya Nagari, Yavatmal, Tq. and
District Yavatmal.
-VERSUS-
RESPONDENTS: 1. Ku. Saroj Panditrao Datir, Aged about
29 years, R/o C/o Shri Dilip Tarpe,
Ujwal Nagar, Near Gulhane Kirana
Shop, Deep Nagar, Yavatmal, Tq. and
District Yavatmal.
2. State of Maharashtra (formal party)
Shri A. S. Kilor Advocate with Ms. Deepali Sapkal, Advocate for
the applicants.
Dr. A. De Advocate with Ms. Komal Mundle, Advocate for non-
applicant no.1.
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APL391.15.odt 2/11
Shri A. Madiwale, Addl. Public Prosecutor for respondent no.2.
CORAM: A.S. CHANDURKAR, J.
DATED: NOVEMBER 08, 2017
ORAL JUDGMENT :
1. By this application filed under Section 482 of the
Code of Criminal Procedure, 1973, order dated 9-4-2015
passed by the learned Additional Sessions Judge, Yavatmal is
under challenge. By that order, the revision application
seeking to challenge the order dated 27-6-2014 rejecting the
application for dropping the proceedings as being barred by
limitation has been rejected.
2. The facts in brief are that the non-applicant no.1
was in the employment with an institution of which the
applicant no.1 was the Secretary and the applicant no.2 was
the incharge Head Mistress. The services of the non-applicant
were terminated on 23-6-2003. This order was challenged by
filing an appeal under Section 9 of the Maharashtra
Employees of Private School (Conditions of Service)
Regulation Act, 1971 (for short, the said Act). The appeal
APL391.15.odt 3/11
was allowed on 28th June, 2007 by directing reinstatement of
the non-applicant no.1 with back wages. This order was
challenged by the present applicants by filing Writ Petition
No.3254/2007. By judgment dated 28-9-2007, the said writ
petition was partly allowed. It was directed that if the
services of the non-applicant no.1 were reinstated within a
period of eight weeks, she would not be entitled for back
wages. If, however, she was not reinstated within a period of
eight weeks, the non-applicant no.1 would be entitled to
execute the order of grant of back wages. This order passed
in the Writ Petition attained finality on 31-1-2008 when the
Letters Patent Appeal filed by the applicants came to be
dismissed.
3. According to the non-applicant no.1, as there was
non-compliance with the directions issued in the order of the
School Tribunal as confirmed by this Court, she filed
Contempt Petition No.142/2008. This contempt petition was
disposed of on 4-8-2009 by observing that there was no wilful
disobedience of the orders passed. It was clarified that the
non-applicant no.1 was entitled for legal remedies available
for executing that order. The miscellaneous application
APL391.15.odt 4/11
seeking review of this judgment was disposed of on
10-2-2010. Thereafter, on 15-6-2010, the non-applicant no.1
filed a complaint under Section 13 of the said Act. The
learned Magistrate on 21-2-2011 issued process only against
the present applicants who were accused Nos.4 and 12. The
applicants then filed an application for dropping the
proceedings on the ground that they were barred by
limitation. By order dated 27-6-2014 this application came to
be rejected on the ground that it was not tenable. The
applicants then filed revision application challenging this
order. By the impugned order, the revision application has
been dismissed.
4. Shri A. S. Kilor, learned Counsel for the applicants
submitted that the Sessions Court committed an error in
coming to the conclusion that the proceedings were filed
within limitation. According to him, in view of provisions of
Section 468 of the Code, the complaint ought to have been
filed within one year from the date of commission of the
offence. The offence as alleged was for non-implementation
of the order of the School Tribunal that was passed on
20-6-2007. It was submitted that immediately on the expiry
APL391.15.odt 5/11
of period of eight weeks, the non-applicant no.1 was sought
to be reinstated in view of the communication dated
26-11-2007. Despite this letter, the non-applicant no.1 joined
services on 24-10-2008. He referred to the findings recorded
in the Contempt Petition as well as the review application to
urge that it was clearly held that no wilful breach had been
committed by the applicants in the matter of implementation
of the orders passed in favour of non-applicant no.1. It was
submitted that there was no continuing cause of action and
the present proceedings had been filed after the review
application came to be dismissed. It was also urged that
separate execution proceedings for recovering the arrears of
salary had been filed. According to the learned Counsel,
continuation of this proceeding amounted to abuse of the
process of law and the same was, therefore, liable to be
quashed in exercise of the powers under Section 482 of the
Code.
5. Dr. A. De, learned Counsel for the non-applicant
no.1 supported the impugned order. It was submitted that the
proceedings under Section 13 of the said Act were filed
within limitation and process was rightly issued by the
APL391.15.odt 6/11
learned Magistrate. It was submitted that two remedies were
available for enforcing the order of the School Tribunal. The
civil remedy was by way of execution while the present
proceedings under Section 13 of the said Act were for
disobedience of the order. After the review application was
disposed of, the present complaint came to be filed on
15-6-2010. In view of Section 472 of the Code, the breach
was continuing in nature and hence, it could not be said that
the proceedings were barred by limitation. In support of his
submissions, the learned Counsel placed reliance on the
decisions in Vilas Shankarrao Deshmukh and another vs. S. A.
Ghode, Principal, Navprabhat Vidya Mandir and others 2001
(1) Mh.L.J. 261, Saroj Pundlikrao Datir vs. Prakash
Nandurkar and others 2009(6) Mh.L.J. 235, Shriprakash
Chandmal Bora and anr. vs. Mutyal Vilas Rambau 2004(2)
Mh.L.J. 927 and Shaikh Badarunnisa Begum Shaikh Abbas vs.
State of Maharashtra and others 2004 (2) Mh.L.J. 407.
It was, therefore, submitted that the impugned order did not
call for any interference and the present proceedings deserve
to be dismissed.
6. I have heard the learned Counsel for the parties at
APL391.15.odt 7/11
length and I have also perused the documents filed on record.
It is not in dispute that the order passed by the School
Tribunal was challenged by filing Writ Petition
No.3254/2007. In that writ petition on the concession made
on behalf of the non-applicant no.1, time of eight weeks was
granted to reinstate her and if the same was done she was
held disentitled for back wages. The period of eight weeks
came to an end on 23-11-2007. On 26-11-2007,
a communication was issued by the applicants calling upon
the non-applicant no.1 to join the services. The non-applicant
no.1 joined her services on 24-10-2008.
7. At this stage, it is necessary to refer to the
observations of this Court in the Contempt Petition that was
filed by the non-applicant no.1. While considering the
question as to whether there was any wilful disobedience of
the order of stay, it was observed that the applicants had
complied with the directions as regards reinstatement in view
of communication dated 26-11-2007. Though the period of
eight weeks expired on 23-11-2007, there were two
intervening holidays. In this backdrop, it was held that
it could not be said that the applicants had committed wilful
APL391.15.odt 8/11
disobedience of the orders as passed. The finding to that
effect is recorded in para 19 of that judgment and it was
clarified that the legal remedy for executing the orders as
passed could be taken. In the review application filed by the
non-applicant no.1, this Court refused to review that order
and observed that the original order could be executed by
demanding back wages as well as salary. It is thus clear from
the aforesaid order that on 4-8-2009 while dismissing the
contempt petition as well as on 10-2-2010 while dismissing
the review petition, it was held that there was no wilful
disobedience of the orders passed in the proceedings.
8. In the proceedings filed under Section 13 of the
said Act, it is the grievance of the non-applicant no.1 that
aforesaid orders of the School Tribunal as well as the orders
of this Court were not complied. These proceedings were
filed on 15-6-2010 with the cause of action being shown as
commencing from 20-6-2007. While according to the non-
applicant no.1 there was a continuing cause of action,
according to the applicants the proceedings ought to have
been filed within a period of one year as per Section 468 of
the Code. Proceedings under Section 13 of the said Act have
APL391.15.odt 9/11
been held to be independent in nature in Shaikh Badarunnisa
(supra). In Shriprakash Chandmal Bora (supra) it was held
that if punishment is sought to be imposed, a criminal
complaint can be filed and if execution is sought, the civil
Court can be approached.
9. Under Section 13 of the said Act if the
management fails without any reasonable excuse to comply
with any direction issued by the Tribunal, the management
could be liable on conviction to be punished. On perusal of
the Contempt Petition as well as the application filed under
Section 13 of the said Act, it is clear that the grievance of the
non-applicant no.1 is with regard to non-compliance of the
order of reinstatement within a period of eight weeks. For
the purposes of the claim for back wages, separate execution
proceedings have been filed which are pending. Under
Section 468 of the Code, the complaint under Section 13 was
required to be filed within a period of one year as the
punishment if imposed was imprisonment for fifteen days.
Under Section 472 of the Code, if there is a continuing
offence a fresh period of limitation would begin to run at
every moment of the time during which the offence
APL391.15.odt 10/11
continued.
10. The facts indicate that pursuant to communication
dated 26-11-2007, the non-applicant no.1 joined her duties
on 24-10-2008. A separate dispute with regard to back wages
and its recovery is pending. This Court in the Contempt
Petition having recorded a specific finding that there was no
wilful disobedience of the order passed by the School
Tribunal or in the writ petition after noting the fact that the
non-applicant no.1 had joined her duties thereafter, said
finding cannot be ignored. In fact, the non-applicant no.1
joined her duties after a specific order in that regard was
passed by this Court. The period of eight weeks having
expired on 23-11-2007 and non-applicant having joined
duties thereafter the grievance, if any, under Section 13 was
required to be made within a period of one year from
23-11-2007 or even from the date of joining which is
24-10-2008. It having been specifically held in the Contempt
Petition on 4-8-2009 as well as on 10-2-2010 that there was
no wilful disobedience in the matter of reinstatement, the
alleged offence in that regard cannot be said to be of
continuing nature. The complaint under Section 13 of the
APL391.15.odt 11/11
said Act having been filed on 15-6-2010, it is clear that the
proceedings were barred by limitation. The learned
Magistrate ought to have allowed the application at Exhibit-
47. The Sessions Court also committed an error by holding
that the offence was continuing in nature especially when the
order of reinstatement was complied with and the petitioner
had joined duties.
11. In view of aforesaid, the order dated 27-6-2014
passed below Exhibit-47 as well as the judgment of the
Sessions Court in Revision No.66/2014 are quashed and set
aside. The application below Exhibit-47 is allowed in terms
of its prayer. The criminal application is allowed in aforesaid
terms with no order as to costs.
JUDGE
/MULEY/
