2010(4) ALL MR 586
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

A.V. MOHTA, J.

Shri. Shriprakash Chandmal Bora & Anr.Vs.Shri. Mutyal Vilas Rambau

Writ Petition No.1772 of 2010

11th June, 2010

Petitioner Counsel: Mr. D. S. MHAISPURKAR
Respondent Counsel: Mr. SUBHASH LANGOTE,Mr. V. A. MADANE

(A) Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act (1977), S.13 - Power of Presiding Officer of School Tribunal - Cannot be equated with the power of the J.M.F.C. unless notified accordingly - Held, School Tribunal unless authorized and/or empowered and/or allocated the additional work of Judicial Magistrate, First Class and/or allocated specific work in additional to the existing work of School Tribunal, the work of J.M.F.C. may not invoke S.13 of M.E.P.S. Act. 2004 ALL MR (Cri) 1234 and 2003(1) BCR 532 - Ref. to. (Paras 3, 4, 8)

(B) Criminal P.C. (1973), Chap.21 - Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act (1977), S.13 - Invocation of power - Power so provided, unless permitted, just cannot be invoked merely because it is akin and as prescribed in Chapter 21 of Criminal P.C. - Application under S.13 of M.E.P.S. Act is maintainable only before competent and empowered Judicial Officer and not otherwise. (Para 6)

Cases Cited:
Shaikh Badarunnisa Begum Shaikh Abbas Vs. State of Maharashtra, 2004 ALL MR (Cri) 1234=2004(2) Mh.L.J. 407 [Para 8]
Tanveer Mohammedi Ibrahim Farooq Vs. Education Officer (Primary) Zilla Parishad, 2003(1) BCR 532 [Para 8]


JUDGMENT

JUDGMENT :- Rule, returnable forthwith. Heard finally.

2. The Petitioners have challenged the impugned orders passed under Section 13 of the Maharashtra Employees of Private Schools (Conditions of Services) Regulation Act, 1977 (for short, M.E.P.S. Act), by the Presiding Officer, School Tribunal directing the Respondents to appear for framing charges and thereby rejected their application for discharge at Exhibit No.1, by referring to Section 10(2) of M.E.P.S. Act and further by invoking Chapter 21 of the Code of Criminal Procedure (for short, Cr.P.C.) & thereby issued notices for punishment under Section 13 of the M.E.P.S. Act for non-compliance of Tribunal order in question.

3. The School Tribunal unless authorized and/or empowered and/or allocated the additional work of Judicial Magistrate, First Class (for short, J.M.F.C.) and/or allocated specific work in addition to the existing work of School Tribunal, the work of J.M.F.C., may not invoke Section 13 of the M.E.P.S. Act, as done in the present case.

4. The Respondent's Appeal was allowed by order dated 07/08/2009 and the termination order was set aside. On 14/09/2009, through Miscellaneous Application 5/2009, under Section 13 of the M.E.P.S. Act as pointed out that the Petitioners failed to implement the orders, by order dated 23/02/2010 the tribunal found guilty for contempt and therefore, decided to record the plea of the Petitioners. There is nothing pointed out that the learned Presiding Officer has been provided/ empowered to work as a J.M.F.C. and as there is nothing on record to show such work was allocated to him specifically the present case. The power of Presiding Officer of the School Tribunal, cannot be equated with the power of the J.M.F.C. unless notified accordingly.

5. Section 13 of the M.E.P.S. Act, which reproduced as under, is very clear.

"13.(1) If the Management fails, without any reasonable excuse to comply with any direction issued by the Tribunal [under section 11 of any order issued by the Director under clause (a) of sub-section (1) or sub-section (4) of section 4-A within the period specified in such direction or as the case may be under sub-section (5) of Section 4-A 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 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 extent 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 to 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 shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly."

6. The power so provided, unless permitted, just cannot be invoked merely because it is akin and as prescribed in the Chapter 21 of the Cr.P.C.. Such Application under Section 13 of the M.E.P.S. Act is maintainable only before the competent and empowered Judicial Officer and not otherwise.

7. Section 11(3) of Cr.P.C. provides a procedure of notification by the High Court, confirming the power of J.M.F.C. on particular named Civil Judges. By notification dated 10th August, 2009, the Registrar General of this High Court Bombay has notified as under :

"In exercise of the powers conferred by Section 11(3) of the Code of Criminal Procedure, 1973 (No.2 of 1974) the Hon'ble the Chief Justice and Judges are pleased to confer the powers of Civil Judge, Senior Division and Judicial Magistrate, First Class on all Judicial Officers of the School Tribunals. Their Lordships have further directed that these Officers be allocated the additional work of the Court of Civil Judge, Senior Division and Judicial Magistrate, First Class."

8. Therefore, in my view, in absence of any specific notification and allocation of additional work, the notices or actions so initiated by the Presiding Officer, School Tribunal, Pune, is without jurisdiction. This Court in following cases while dealing with the same provisions has observed as under :-

2004(2) Mh.L.J. 407 : [2004 ALL MR (Cri) 1234], Shaikh Badarunnisa Begum Shaikh Abbas Vs. State of Maharashtra.

2003(1) BCR 532, Tanveer Mohammedi Ibrahim Farooq Vs. Education Officer (Primary) Zilla Parishad.

"(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(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 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.5,000/- 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.

10. In view of above, the Petition is allowed only to the extent that the School Tribunal has no authority and jurisdiction to pass any order under Section 13 of the M.E.P.S. Act unless specifically empowered and/or the matter allocated to him as a Judicial Magistrate. The impugned orders dated 08/10/2009 and 23/02/2010 are, accordingly, quashed and set aside, with liberty to the Respondent to take appropriate plea and Application in accordance with law.

11. The Petition is accordingly allowed in terms of prayer clauses (a) and (b).

12. Rule made absolute, accordingly. No order as to costs.

Petition allowed.