1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.710 OF 2009 Shri Pravin Shankarrao Thorat, age 43 years, occupation Nil, resident of Ramnagar,Pimpalner, Taluka Sakri, District Dhule. Petitioner versus 1. The State of Maharashtra 2. Janya Jamsya Gawit, President, age major,occupation business, r/o Karanji Bk.Post Pati Bedki, Taluka Navapur,Dist.Nandurbar. 3. Daraji D. Gawit, Vice-President, Age major, occupation business, r/of at post Sonkhadka, Taluka Navapur, District Nandurbar. 4. Smt. Chandrawati Suraji Wasave, Secretary,age major,occupation business, r/of at post Ucchal Taluka Ucchal, District Surat (Gujarat State). 5. Madhukar N.Thingale,Jt.Secretary, Age major, occupation service, r/of at post Ucchal,Taluka Ucchal, District Surat (Gujarat State). 6. Baburao Magan Gawit, Treasurer, age major, occupation business, r/of Manda Society, near Nagar Bhavan, Nagapur, Dist.Nandurbar. 2 7. Subhash M. Wasave, Member, age major, occupation service, r/of at post Visarwadi, Taluka Navapur, District Nandurbar. 8. Gangaram V. Gawit, Member, age major, occup.business, r/of Suli, post Kolada, Tq.Navapur, Dist.Nandurbar. 9. Vijay J. Gawit, Member, age major, occupation service, at post Karanji B. Post Patni Bedaki, Taluka : Navapur, District Nandurbar. 10. Kushyabhai T. Gawit, Member age major, occup. service, at post Kareghat, Tq.Navapur, District Nandurbar. 11. Viraji Nooraji Gawit, Member, age major, occup.service, at post Karanji Bk. post Pati Bedaki, Taluka Navapur, District Nandurbar. 12. Panya J. Gavit, Member, age major, occup. service, at post Karnji Bk. post Pati Bedki, Taluka Navapur, District Aurangabad. 13. Suresh Dattatray Gharate, age major, occup. service, Head Master, Secondary and Higher Secondary School, Karnji Bk. Post Pati Bedaki, Taluka Navapur,Dist.Nandurbar. Respondents ----- Shri V.D.Sapkal, Advocate, for the petitioner. Shri K.M.Suryawanshi APP for Respondent No.1. Petition abated against Respondent No.2 as per court order dated 5.10.2009, since he is dead. Shri R.S.Shinde, Advocate for Resps.No.3 to 13. ----- 3 Coram : P.R.Borkar,J. Date : 07/01/2010. ORAL JUDGMENT 01. Rule. By consent of parties, Rule made returnable forthwith and the writ petition is heard finally at the admission stage itself. 02. By this writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioner challenges the order passed by the learned Judicial Magistrate, First Class, Navapur, District Nandurbar, on application at Exh.58 in S.T.C. No.69 of 2008 on 29.6.2009, whereby the proceedings in the said criminal case were stayed. 03. Briefly stated, the facts giving rise to this writ petition are that the petitioner was appointed as an Assistant Teacher on 11.6.1990 by Adiwashi Education Society of which Respondent Nos. 2 to 13 were the office bearers. Services of 4 the petitioner were terminated with effect from 6.10.1999 and, therefore, he filed appeal before the School Tribunal, Nashik, bering No. DHL/31/99 which was allowed by the Tribunal vide its order dated 13.1.2006 with direction that the petitioner be reinstated in the service with full back wages within forty days from the date of the said order. The copy of the said order of the School Tribunal is at Exhibit A with the petition. 04. Thereafter, the petitioner gave an application dated 7.3.2006 to the Head Master of the School praying that he be allowed to resume his duties, but he was not so allowed. He therefore made representations to the Deputy Director (Education) on 10.3.2006 and 17.3.2006. However, in spite of such application and representations, the petitioner was not allowed to resume duties. Therefore, since there was failure on the part of the Institution to comply with the order of the School Tribunal, the petitioner filed S.T.C. No.69 of 2008 in the court of Judicial Magistrate, First Class, Navapur. 5 05. Pending the above criminal case before the learned Magistrate, the Respondent-Management filed Writ Petition bearing No.2577 of 2006 in this Court, challenging the order dated 13.1.2006 passed by the School Tribunal. By order dated 7.9.2007 passed in the said Writ Petition, the copy of which is at Exhibit I with the present writ petition, the learned Single Judge of this Bench granted interim relief in terms of prayer clause (B) by observing in paragraphs 5 as under: "5. In my view, the submissions made by the respective learned Counsel would require proper examination which can be done at the final hearing stage. Since Rule is already granted in the above petition, in the conspectus of the background resulting in initiation of enquiry against the Respondent No.1 and also in view of the fact the Respondent No. 1 is terminated in the year 1999, interim relief would have to be granted and are, therefore, granted in terms of prayer clause (B)." 06. The petitioner in paragraph 12 of present petition, reproduced prayer clauses from Writ Petition No.2577 of 2006 which are as under:- 6 "(A) The writ petition may kindly be allowed. (B) Record and proceedings may please be called for. (C) By way of appropriate writ, order or direction in like nature, the impugned judgment and order dated 13/01/2006 passed by the Ld. Presiding Officer, Shool Tribunal, Nashik Region, Nashik in Appeal No.DH/13/99, may kindly be quashed and set aside. (D) Pending hearing and final disposal of the present writ petition, by way of appropriate writ, order or direction in like nature, the impugned judgment and order dated 13/01/2006 passed by the Ld. Presiding Officer, Shool Tribunal, Nashik Region, Nashik in Appeal No.DH/31/99, may kindly be stayed and suspended. (E) Ad-interim relief in terms of prayer clause (D) may please be granted in favour of the petitioner. (F) Any other suitable and equitable order be passed in favour of the petitioner to which he is found entitled in the interest of justice and facts and circumstances of the case." 07. It is submitted by Advocate Sapkal for the present petitioner that by order dated 7.9.2007 in Writ Petition No.2577 of 2006 this Court has only called for Record and Proceedings and has not stayed proceedings in the criminal 7 case and in spite of that, the learned Magistrate by his order dated 29.6.2009 has stayed the said criminal proceedings, by misreading the order of this court and, therefore, according to Advocate Shri Sapkal the said order of the learned Magistrate deserves to be set aside. 08. Advocate Shri Sapkal also put forward certain propositions of law. He submitted that once the order of the School Tribunal was not obeyed by Respondents in time, they have committed offence and further reversal of the order of School Tribunal in writ petition by this court would not take away the consequences flowing from violation of the said order. He cited certain authorities in support of his propositions. 09. I may briefly refer to the cases cited. Learned Advocate Shri Sapkal firstly referred to the case of Shaikh Badarunnisa vs. state of Maharashtra, 2004 (2) Mh.L.J. 407, and more particularly relied upon observations in paragraph 10 of the same to the effect that the remedy under 8 Section 13 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act 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. In the present case, maintainability of the complaint is not challenged but the grievance is about the stay granted by the impugned order to the proceedings in criminal case. 10. The next case cited is of State of Jharkhand and others v. Ambay Cements and another AIR 2005 S.C.4168. The case is under the Bihar Finance Act and Industrial Promotion Policy 1995. In paragraph 26 of judgment in the said case, it has been observed that penal provisions have to be construed and followed strictly. In the said case, requirement of seeking prior permission for exemption from payment of sales tax on purchase of raw material and on sale of finished products was held mandatory and, therefore, it is observed that 9 non-compliance of the same resulted in cancelling concession made in favour of the grantee-the respondent therein. 11. The third case cited is Birad Mal Singhvi vs. Anand Purohit AIR 1988 S.C. 1796 which is under the Representation of People Act. Advocate Shri Sapkal particularly relied upon paragraphs 6 and 7 of the judgment in the said case. The Supreme Court was considering Sections 33(5) and 36 (2)(b) of the Act. It is observed that when a statute requires a party to produce certain documents before the Returning Officer, it should do it so and it cannot shift burden on the Returning Officer, especially when it relates to mandatory requirements. 12. The last case cited upon by Advocate Shri V.D.Sapkal for the petitioner is Tayabbhai M. Bagasrwalla vs. Hind Rubber Industries Pvt. LTD. AIR 1997 S.C. 1240 and he relied more particularly on paragraphs 14 to 16 of the judgment. In that case, it is laid down that the whenever interim 10 order is passed by the court, parties are bound to obey the same and although subsequently it was found that the court had no jurisdiction to pass such an order, the parties cannot flout that order. 13. In the present case, in paragraph 2 of the impugned order dated 29.6.2009 passed in S.T.C. No.69 of 2008, the trial court has observed as follows; "Furthermore, it appears that the Hon'ble High Court has granted the interim reliefs in terms of prayer clause (B) of the said Writ Petition and also expedited the hearing thereof. In view of this position on record, I am of the opinion that as the very legality of the said judgment of the School Tribunal, Nashik is being considered by the Hon'le High Court, in view of the Judicial propriety, it will not be proper to proceed further with the present proceeding. For this proposition, I would like to place my reliance on the case of "Kishor s/o Bhikansingh Rajput vrs. Preeti w/o Kishor Rajput reported in 2007 (2) Mh.L.J.481" wherein the Hon'ble High Court has observed that when an order of subordinate Court is challenged before the High Court and it is seized of the matter, it is expected of the subordinate Courts to stay their hands away. In view of these observations, I am of the 11 considered opinion as the complainant is also not denying the fact regarding stay of the said judgment of School Tribunal, the present proceeding, which is originated from the said judgment, needs to be stayed till further orders." 14. Shri R.S.Shinde, the learned Counsel for the Respondents drew my attention to the observations made by this court in its order dated 7.9.2007 passed ind Writ Petition No.2577 of 2006. Perusal of paragraph 5 of the order indicates that the court came to a conclusion that there are arguable points which need consideration at the time of final hearing of the petition. The court was, therefore, inclined to grant interim relief. 15. If we see the reliefs prayed for in the said writ petition which are quoted in paragraph 12 of the present writ petition and reproduced above, it is abundantly clear that it was prayer clause (D) which sought interim relief and not prayer clause (B). There is substance in the argument of the Respondents that it is a clerical or typographical mistake that in the said order, in stead of prayer clause "(D)", prayer clause 12 "(B)" is typed. In support of this, learned counsel for the Respondents has made available a copy of Letters Patent Appeal No.175 of 2007 that was filed by present petitioner against the order dated 7.9.2007 in Writ Petition No.2577 of 2006. In paragraph 11 of synopsis to the said Letters Patent Appeal, so also in paragraph 10 of the memo of the said Appeal, it is stated that by granting interim relief in terms of prayer clause (D) of Writ Petition No.2577 of 2006, the learned Judge had stayed the impugned order dated 13.1.2006 passed by the School Tribunal Nasik in Appeal No.DHL.31/99. The portion or the order passed by the learned Judicial Magistrate quoted above also indicates that the parties were under impression that this court had stayed the order passed by the School Tribunal. 16. After giving anxious consideration to the submissions made by the parties before me, in my opinion, the trial court has exercised its discretion in staying the criminal proceedings and the same need not be interfered with in the extra- 13 ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution. 17. In the result, this writ petition fails and the same is accordingly dismissed. pnd/criwp710.09 (P.R.BORKAR, J.)