1 CR.WP NO.1166/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1166 OF 2009 1. Laxminarayan s/o Bankatlal Lahoti, Age 64 years, Occu: Business, Now President of Dayanand Education Society, Latur, r/o Dayaram Road, Latur, Taluka and District: Latur. 2. Jivan S.Tulba, Age 58 years Occu: Service as Principal of Dayanand Science College, Latur, r/o Latur, Taluka and District: Latur. ..PETITIONERS (Orig. Revision petitioners) VERSUS 1. Uma w/o Pandurang Mantri, Age 41 years, Occu. Service, r/o Signal Camp, Latur, Taluka and District: Latur. 2. The State of Maharashtra. ...RESPONDENTS (No.1 Original Complainant) ... Mr.Smt. Anjali Bajpai Dube, Adv., for the petitioners. Mr. S.B.Pulkundwar, APP for State. Mr. V.D.Gunale, Advocate, for respondent no. 1. 2 CR.WP NO.1166/2009 ... CORAM: K.U.CHANDIWAL, J. DATE:July 1st, 2011 *** Date of reserving the order: 15.6.2011 Date of pronouncing the order: 1.7.2011 ... PER COURT : 1. The petitioners have urged for quashing and setting aside order dt.29.10.2009, passed by learned Ad hoc Additional Sessions Judge, Latur, in Criminal Revision Application No.29/2009, confirming the order of learned Judicial Magistrate, First Class, dt.4th Feb.,2009, recorded below Exh.103 and 105 in STCC No. 1901/2005. On March, 12th, 2010, the parties agreed to argue the matter finally at admission stage. 2. The petitioner nos.1 and 2/ accused, are the President and Principal of the educational institute while the respondent/complainant was a teacher appointed in Vocational Course at the petitioners college. The services of respondent no.1 were terminated. Consequently, she approached the School Tribunal by filing appeal under Section 9 of Maharashtra Employees of Private Schools ( Conditions of Service) Regulation Act, 1977 ( for short, "MEPS Act"). She was directed to be reinstated with 3 CR.WP NO.1166/2009 full back-wages. 3. Being aggrieved by said orders, Writ Petition No.581/2005, preferred by the applicant, was admitted. However, the order of reinstatement was not stayed. Respondent no.1 filed the subject complaint before learned Judicial Magistrate, First Class, seeking redressal against petitioners for non compliance of the orders of the learned School Tribunal, taking recourse to Section 13(1) of the MEPS Act which provides punishment for 15 days. 4. The contempt petition filed by the complainant/respondent before the High Court being Contempt Petition No.216/2005 was dismissed with directions to pay the entire amount towards arrears payable to the complainant/respondent. Rs.4,16,195/- was directed to be deposited in the above referred writ petition. 5. By application at Exh.103, the petitioners urged the learned Judicial Magistrate, First Class, to try the case as summons case which was rejected. Revision before the learned District Judge also was dismissed on 26.3.2008 and, consequently, Writ Petition No.526/2008 was moved before this Court. In the said writ petition, all the points were kept open between the parties, including 4 CR.WP NO.1166/2009 interpretation of Section 259 Cr.P.C. read with Sections 13(1)(a) and 13(2)(a) of MEPS Act, 1977. After hearing both the sides, learned Judicial Magistrate, First Class, passed the impugned order, on 4.2.2009. The revision No.29/2009 was also rejected by the learned Sessions Judge on 9th March, 2009. 6. The contention that Section 259 Cr.P.C. is not adhered to, has been succinctly dealt with by the learned Judicial Magistrate, First Class, as well as by the learned Additional Sessions Judge and I do not see any error on the part of the learned Judge as it was a mere irregularity. The learned Judicial Magistrate, First Class had, indeed, framed charges against the accused/applicant and proceeded with the matter. Even stage of Section 245 of Cr.P.C. for discharge did not remain. 7. The contention that Miscellaneous Application bearing No.56/2006 is dismissed by the School Tribunal for want of prosecution will not be available to be coined as the field of taking action under M.E.P.S. Act before the learned Judicial Magistrate, First Class, and before the School Tribunal, operate in two different areas. The Contempt petition was dismissed keeping controversies between the parties open. 5 CR.WP NO.1166/2009 8. Mr. Gunale submits that the respondent was illegally terminated from service in the year 2003, which was rightly set aside by the School Tribunal. No interim stay granted in the writ petition moved by the management and it was expected of the management to reinstate in service or to pay her back-wages. Without any reason, the respondent teacher was illegally declared as surplus which is subject of challenge in Writ Petition No.6739/2006 pending for final hearing. 9. I quite see that the order recorded by the School Tribunal in favour of the original complainant, the teacher, is not complied with by the petitioner in its letter and spirit. Considering scope and ambit in terms of Section 13 of the MEPS Act, since the management (petitioners) failed to comply with the direction issued by the Tribunal, the recourse available to the complainant (respondent) is rightly adhered to. It cannot be said that no scope is available to the Court to take action as the claims of the teacher are satisfied. It is a matter of evidence, making part payment by itself would not amount to compliance of the orders of the School Tribunal. That apart, if the orders are not complied within the time frame, still Section 13 is attracted with penal consequences. The 6 CR.WP NO.1166/2009 management has to explain reasonable excuse not to comply the orders issued by the Tribunal which, apparently, the management has failed. 10. Learned Counsel for the petitioner placed reliance to the judgment of this Court (Coram: D.K.Deshmukh, J.) in the matter of Mohammad Salam Anamul Haque Vs. S.A.Azmi & others ( 2001 (Supp.2) Bom.C.R.37). The said judgment deals with the alternate remedies and observed that the petition before the High Court is not maintainable. The High Court, in such cases, should be reluctant to entertain the petition. This judgment has no relevance to the issue involved in the present petition. 11. The reliance to the judgment in the case of Adalat Prasad Vs. Roopal Jindal & others ( 2004(2) Bom.C.R.(Cri.) 857 ) and, particularly, paragraph No.15, which reads as under, is inconsequential: " It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 & 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of Code. " 7 CR.WP NO.1166/2009 There is no quarrel on the proposition enunciated in the above referred paragraph but it operates in the realm of Section 482 of Cr.P.C. concerning absence of review power or inherent power with the subordinate Court. 12. It is difficult to conceive, simply because the summons case has been converted into warrant case, that, per se, has lead to illegality. This is especially in absence of any material that it has caused prejudice to the petitioners herein. There is nothing to demonstrate, the order results in miscarriage of justice or the continuation of criminal prosecution would be a humiliation to the petitioners. Prima facie, the record illustrates, petitioners did not honour the orders of the learned Presiding Officer, School Tribunal and, consequently, invited the wrath of prosecution under Section 13 of M.E.P.S.Act which, in itself, provides an independent mechanism. An employee can certainly maintain a complaint against the erring management/ the petitioners. 10. Taking all the aspects into consideration, I do not see any illegality on the part of the learned Judicial Magistrate, First Class and also the Revisional Court in rejecting 8 CR.WP NO.1166/2009 Exh 103 and Exh.105 in STCC Case No.1901/2005. Writ Petition (No.1166/2009) lacks merit, dismissed. The request for extension of interim relief is refused as the matter before the learned Judge is at the fag end and waiting for adjudication since last more than two years. (K.U.CHANDIWAL) JUDGE ... agp/1166-09crwp