1 wp6414-97.doc ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6414 OF 1997 Vasana Panchcroshi Shikshan Sanstha, Ambawade (S.W.) .. Petitioner Vs. Shri Khamkar Popatrao Narayan and Ors. .. Respondents Mr.R.S.Apte, Sr.Counsel with Mr.Mandar Limaye for the petitioner Mr.Dilip Bodke for the respondents Mr.A.D.Kango, A.G.P. for the State CORAM: K.K. TATED, J. DATE: 6th MAY, 2011 PC: 1. Heard the learned counsel for the parties. 2. By this petition under Article 226 of the Constitution of India, the petitioner original respondent challenges the order dated 13.10.97 passed by the learned Presiding Officer, School Tribunal, Kolhapur Region, Kolhapur below 2 wp6414-97.doc Ex.1 in Contempt Petition No.14 of 1997 directing the petitioner to pay unpaid salary of the respondent from the date of termination till 1.4.96 and directing Education Officer to deduct the unpaid salary amount of the respondent from the grant of the school if the petitioner management failed to pay the same. A few facts of the matter are as under: 3. The respondent was appointed as Head Master of the School from first day of the beginning of the School on and from 9.6.82. Thereafter, because of some dispute among the school management, they terminated respondent s service by order dt.13.10.89. Being aggrieved ’ by the termination order, the respondent filed appeal no. 113 of 1989 on 15.11.89 before the School Tribunal at Pune. 4. The School Tribunal by its order dt.5.3.82 allowed the respondent s appeal. Thereafter, the petitioner filed ’ Misc.Application No.7 of 1992 before the School Tribunal in appeal no.113 of 1989 for review of the judgment and order dt.5.3.92 passed by the School Tribunal. The said Misc.Application was dismissed by the learned Presiding 3 wp6414-97.doc Officer, School Tribunal, Pune on 15.11.94. Thereafter, the petitioner preferred Writ Petition No.754 of 1995 in this court challenging the order dt.5.3.92 passed by the learned Presiding Officer, School Tribunal Pune Region, Pune in appeal no.113 of 1989 and the order dt.15.11.94 in Misc.Appeal No.7 of 1992. The said Writ Petition was dismissed by Division Bench of this court (Coram: B.P.Saraf and Mr.A.V.Sawant, JJ) by order dt.23.3.95. 5. Thereafter, the respondent filed the Contempt Petition no. 25 of 1996 in this court for taking action against the petitioner for non-compliance of order dt.5.3.92 passed by the School Tribunal at Pune in Appeal No.113 of 1989. In that contempt petition, this court (Coram: K.K.Baam, J) passed an order on 25.3.96 directing the petitioner to allow the respondents to join the services. As per the said order, the petitioner joined the services on 2.4.96. Thereafter the respondent called upon the petitioner to make the payment of back wages as per the order passed by School Tribunal dt.5.3.92 in appeal no.113 of 1989, Inspite of several reminders, the petitioner failed to pay 4 wp6414-97.doc the same and therefore, the respondent filed Contempt Application No.14 of 1997 before the School Tribunal, Kolhapur at Kolhapur. In the said contempt application, petitioner filed their written statement dt.8.8.97. In the said contempt application, the Tribunal passed an impugned order dt.13.10.97. 6. Being aggrieved by the order dt.13.10.97 passed by the learned Presiding Officer, School Tribunal, Kolhapur Region, Kolhapr below Ex.1 in Cont.Application No.14 of 1997, the petitioner preferred this Writ Petition. 7. The learned counsel for the petitioner submits that the impugned order dt.13.10.97 passed by the learned Presiding Officer is against justice, equity and good conscience and same is liable to be set aside. He further submits that the learned Presiding Officer passed the impugned order without any Jurisdiction and therefore, the same is liable to be set aside. 8. The learned counsel for the petitioner submits that the Contempt Application filed by respondent before the School Tribunal is not maintainable for want of 5 wp6414-97.doc Jurisdiction. He submits that there is no provision under the Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1997 (hereinafter referred to as the said Act) for preferring Contempt Petition to implement the order passed by the Tribunal. He further submits that even the said Contempt Application is not maintainable under section 13 of the said Act. In support of the contention, he relies on the judgment in the matter of Mohammad Salam Anamum Haque vs. S.A.Azmi and others reported in 2001(1) Mh.L.J. 249. In that case, our High Court held that Contempt Petition under the Contempt of Court Act is not maintainable for violating the orders passed by School Tribunal under the said Act. It is held that the order passed by the School Tribunal is an order within the meaning of section 2(14) of the Civil Procedure Code and the same is executable under the provisions of the Civil Procedure Code. So far as the execution of the order passed by the School Tribunal is concerned, either the School Tribunal may itself execute the same or may transfer the same for execution to 6 wp6414-97.doc another court under the Civil Procedure Code. It is to be noted here that this particular ground is not raised by the petitioner in the present petition, and therefore, there is no question of considering the same. 9. He further submits that the School Tribunal exceeded its Jurisdiction and granted back wages from the date of termination till reinstatement. He submits that though the petitioner by their letter 13.3.92 called upon respondent to join the services as per the order passed by School Tribunal, the respondent failed and neglected to join the services and therefore, he is not entitled to back wages from 13.3.92 till 2.4.96. He submits that on the principle of no work no payment, respondent is not entitled to back wages. It is to be noted that the letter dt.13.3.92 on which the petitioner placed reliance was not produced before the trial court at all. They placed the same on record for the first time in the present petition. 10. The learned counsel for the petitioner further submits that in any case, they are not liable to make payment of back wages to the petitioner. Responsibility goes on respondent 7 wp6414-97.doc nos.2 and 3 because their school is 100% aided school. In view of these submissions, the learned counsel for the petitioner submits that the tribunal erred in directing the petitioner to pay back wages to the respondent from the date of termination till the date of reinstatement. 11. On the other hand, the learned counsel for respondent no. 1 vehemently opposed the present petition. He submits that the Tribunal by its order dt.13.10.97 directed the petitioner to comply the original order passed by Tribunal dt.5.3.92 in appeal no.113 of 1989. Therefore, there is no question of exceeding the Jurisdiction by the Tribunal at the time of passing the impugned order dt.13.10.97. The learned counsel for the respondent no.1 submits that the petitioner for the first time raised the said objection in the present Writ Petition. He submits that in view of section 21 of the Civil Procedure Code, the petitioner is precluded from raising new issue first time at appellate stage and therefore, there is no merits in this petition. 12. He further submits that the Tribunal has Jurisdiction to entertain the application for enforcement of their own 8 wp6414-97.doc orders. He submits that even in the matter of Mohammad Salal Anamul Haque (supra) cited by the petitioner, this court categorically held that the School Tribunal either may itself execute their own orders or can transfer the same for execution to another court under the Civil Procedure Code. Therefore, the action taken by the Tribunal for execution of order dated 5.3.92 is within the Jurisdiction. 13. The learned counsel for the respondent submits that as soon as the order was passed by Tribunal dt.5.3.92 allowing their appeal, the respondent intimated the petitioner and called upon them to allow the respondent to join the services immediately. Inspite of allowing the respondent to join the services as per the order dt.5.3.92 passed by the Tribunal, the petitioner preferred Misc.Application No.7 of 1992 for review of the Judgment and order dt.5.3.92. The said Review Petition was dismissed on 15.11.94 and thereafter, the petitioner preferred writ petition no.7454 of 1995 in this court. The said Writ Petition was dismissed by Division Bench order dt.23.3.95. Inspite of the Division 9 wp6414-97.doc Bench s order, the petitioner failed and neglected to ’ implement the tribunal s order dt.5.3.92 in its entirity and ’ therefore, the respondent was constrained to file the contempt application before the School Tribunal. He submits that in view of the provisions of the said Act, the Tribunal has jurisdiction to entertain the contempt application. Therefore, there is no substance in the present Writ Petition and the same is liable to be dismissed with costs. 14. With the assistance of both the counsel, I have gone through the papers of Contempt Petition No.25 of 1996 and other documents which are on record. Admittedly, in the present case, a termination order dt.13.10.89 passed by the petitioner is set aside by the School Tribunal on 5.3.92 in appeal no.113 of 1989. Thereafter, the petitioner preferred Review Application. The same was dismissed by School Tribunal. The petitioner also preferred writ petition challenging the order passed by School Tribunal in Appeal No.113 of 1989 and in review application no.7 of 1992. The said Writ Petition was dismissed by Division Bench of this 10 wp6414-97.doc court. Inspite of that, the petitioner failed to comply with the order passed by the School Tribunal. Thereafter, the respondent preferred contempt petition no.25 of 1996. In that contempt petition, this court passed an order on 2.4.86 and thereafter, the petitioner allowed the respondent to join his services but failed to pay back wages. The learned counsel for the respondent no.1 submitted that on several occasions, respondent no.1 called upon the petitioner management to comply with the order passed by Tribunal in appeal no.113 of 1989, but they failed and neglected to do so. 15. He further submits that the objections raised by the learned counsel for the petitioner in the present proceedings are not tenable. He submits that the Contempt Application No.14 of 1997 was filed by the respondent no.1 only for the recovery of his back wages which they are entitled. Therefore, there is no question of raising the point of Jurisdiction at this appellate stage. In any case, under Article 226 of the Constitution of India, the court can consider only illegality of the order on the face 11 wp6414-97.doc of it without going into the credibility of the evidence on record and documents produced by the parties. Though the petitioner submitted that they by their letter dated 13.3.92 called upon the respondent no.1 to join the services, he failed and neglected to do so cannot be considered for payment of back wages. Admittedly, after the order passed by Tribunal in appeal no.113 of 1989, the petitioner preferred Revision Application. The said Revision Application was dismissed on 15.11.94. Thereafter, immediately petitioner preferred writ petition 754 of 1995. Same was dismissed by Division Bench of this court on 23.3.95 and thereafter, respondent preferred Contempt Petition No.25 of 1996. In that Contempt Petition, this court passed order on 25.3.96. These dates show that the petitioner on his own delayed the implementation of the order dt.5.3.92 passed by the Tribunal in appeal no.113 of 1989. Therefore, there is no question of delay in filing the contempt application in 1997 i.e. after five years. 16. Considering the provisions of the said Act and particularly section 13 of the said Act, it is clear that the School 12 wp6414-97.doc Tribunal can pass appropriate orders for executing their orders in separate proceedings. In view of these facts and circumstances, I do not find any substance in the submission made by the learned counsel for the petitioner. Petition stands rejected with no order as to costs. (K.K.TATED,J.)