Bombay High Court
Mrs. Jyoti W/O. Vijay Devre vs Shakur Husainbhai Maniyar on 29 June, 2018
Author: T.V. Nalawade
Bench: T.V. Nalawade
Cri.W.P.No.624/2017
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 624 OF 2017
Mrs. Jyoti w/o. Vijay Devre,
Age 53 years, Occu. Service,
R/o. Radhabai Kale Kanya Vidya
Mandir and Junior College,
Kolpewadi, Taluka Kopargaon,
District Ahmednagar. ....Petitioner.
Versus
1. Shakur Husainbhai Maniyar,
Age 35 years, Occu. Service,
R/o. Kumbhari, Taluka Kopargaon,
District Ahmednagar.
2. The State of Maharashtra ....Respondents.
Mr. C.V. Korhalkar, Advocate for petitioner.
Mr. A.S. Gandhi, Advocate for respondent No. 1.
Mr. S.B. Pulkundwar, APP for respondent No. 2/State.
CORAM : T.V. NALAWADE, J.
DATED : JUNE 29, 2018.
JUDGMENT :
1) Rule. Rule is made returnable forthwith. By consent, heard both the sides for final disposal.
2) The petition is filed under Articles 226 and 227 of Constitution of India and also under section 482 of Criminal Procedure Code (hereinafter referred to as 'Cr.P.C.' for short) for ::: Uploaded on - 02/07/2018 ::: Downloaded on - 04/07/2018 01:24:23 ::: Cri.W.P.No.624/2017 2 challenging the decision of Criminal Revision No.26/2016, which was pending in the Court of learned Additional Sessions Judge, Kopargaon and also to challenge the order of issue process made by the learned Judicial Magistrate, First Class, (hereinafter referred to as 'J.M.F.C.' for short) Kopargaon in S.T.C. No. 517/2015. The process is issued for offences punishable under sections 499 and 500 of Indian Penal Code (hereinafter referred to as 'IPC' for short).
3) The private complaint is filed by respondent No. 1 for aforesaid offences. The respondent was working in a Junior College of Rayat Shikshan Sanstha of Kolpewadi as Assistant Teacher on clock hour basis (CHB) in Hindi subject. It is his contention that after putting in nine years of service, without giving any memo and without inquiry, by oral order, he was terminated and other teacher was appointed in his place. At the relevant time, the petitioner was working as Head-Mistress of the said junior college.
4) It is contention of the complainant that he had filed proceeding before Deputy Director of Education Pune to challenge the order of termination and in that proceeding, on the letter head of school, the present petitioner filed say which included defamatory matter against him. The defamatory matter is quoted in the private complaint and it is as under :-
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"izfr] ek- f'k{k.k milapkyd] iw.ks foHkkx iw.ks fo"k; & Jh efu;kj 'kdwj gqlsuHkkbZ ;kauh nk[ky dsysY;k vfiykP;k lquko.khckcr-
lanZHk & Jh efu;kj ;kaps orZukckcr egksn;]
lnj f'k{kd Jh efu;kj gs 'kkys; iz'kklukr osGksosGh gLr{ksi d:u iz'kklukyk vMp.khr vk.krkr R;keqGs iz'kklukr rk.kr.kko fuekZ.k gksrks- 'kkGsP;k nSuafnu dkedktkr vkWQ rklkyk fon~;ky;kr gtj u jkg.ks] lsodkaP;k dfu"B egkfon~;ky;kr gks.kk&;k feVhaxyk mifLFkr u jkg.ks] vkWMZj vkeP;k fon~;ky;kr o lk;dy ikdhZxek= 'kstkjP;k fon~;ky;kr o R;k fon~;ky;kP;k eq[;k/;kidkaph rdzkj ;s.ks] dWVykWx e/;s vla[; pqdk] ofj"Bkauk m/nV cksy.ks] ikydkaP;k ukos inkf/kdkjh o 'kkldh; vf/kdkjh ;kauk Lor%p fuukos i= fygwu 'kkGsph cnukeh dj.ks] HkkaMr jkg.ks] d/khd/kh rj LFkkfud xqaMkpk okij d:u f'k{kdkauk =kl ns.ks] dWVykWx yio.ks] eukizek.ks ifj{ksph cSBd O;oLFkk cny.ks] fon~;ky;kph egRokph dkxni=s] dWVykWx] eLVj] jftLVlZ] ifj{kk isij yiowu Bso.ks o brj f'k{kdkauk osBhl /kj.ks gs izdkj usgehp dj.ks] f'k{kd o f'k{kdsrj lgdkjh deZpk&;kauk myV lqyV cksys.ks o f'kohxkG dj.ks ;keqGs fon~;ky;kP;k vkLFkkiusoj rk.k ok<orkr-
ojhy orZukyk vuql:u R;kauk lq/kkj.kk Ogkoh Eg.kwu rksaMh let ns.;kr vkyh vkgs- ;kiwohZP;k 'kk[ksrgh R;kaP;k v'kkp rdzkjh vkgs- ijarq dqBY;kgh izdkjph lq/kkj.kk >kysyh ukgh-
R;keqGs vkEgh dU;k fon~;ky; vlY;kus laLFksdMs L=h f'k{kdsph ekx.kh dsysyh vkgs-
dGkos] vkiyk fo'oklw xxx jk/kkckbZ dkGs dU;k fon~;keafnj o dfu"B egkfon~;ky;] dksGisokMh] rk- dksijxko] rk- 21@10@2015 ft- vgenuxj"::: Uploaded on - 02/07/2018 ::: Downloaded on - 04/07/2018 01:24:23 ::: Cri.W.P.No.624/2017 4
"The said teacher Maniyar was interfering in the administration of the school time and again to bring the administration in trouble. Due to his conduct, the administration was facing difficulty and he had created tension in the management. He was not remaining present for the work of teaching subject assigned to him. He was not attending the meeting of the employees of the college. Against him, there were complaints of neighbouring school Head-Master. He had done many mistakes in the catalog, he had no discipline and he was insulting the superiors. The administration believed that he was sending anonymous letters to Government authorities against the college and it's employees to defame them. He used to quarrel with other teachers and on some occasions, he had used local Gundas for the quarrel. He had habit of concealing important record and muster of the college and he was picking up quarrels with other staff members. About this conduct, oral warnings were given to him. But, he did not improve his conduct."
5) The aforesaid reply was filed by the junior college on 21.10.2015. It was signed by the present petitioner as the Head- Mistress of the Junior College. It is the contention of the complainant that he had asked the present petitioner as to why she had made such allegations and upon that, she had expressed that her superiors had asked her to do so and under pressure, she had done ::: Uploaded on - 02/07/2018 ::: Downloaded on - 04/07/2018 01:24:23 ::: Cri.W.P.No.624/2017 5 so. It is contention of the complainant that the present petitioner mala-fidely took action and she was helping another lady Smt. Pramila and ultimately Smt. Pramila was appointed in his place on 1.10.2015.
6) The private complaint came to be filed on 1.12.2015. The order of J.M.F.C. shows that J.M.F.C. perused the aforesaid allegations and verification of the complainant recorded on oath. The Magistrate has observed that the prima facie case is there and aforesaid matter amounts to defamation.
7) The learned counsel for petitioner drew the attention of this Court to exception No. 7 and 8 of section 499 of IPC. Those exceptions are as under :-
"Seventh Exception- Censure passed in good faith by person having lawful authority over another.- It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
Eighth Exception- Accusation preferred in good faith to authorised person.- It is not defamation to prefer in good faith an accusation against any person ::: Uploaded on - 02/07/2018 ::: Downloaded on - 04/07/2018 01:24:23 ::: Cri.W.P.No.624/2017 6 to any of those who have lawful authority over that person with respect to the subject-matter of accusation."
8) The learned counsel for petitioner submitted that the Head-Mistress has no concern with the decision of making appointment or issuing order of termination and it is the decision of the management. The learned counsel submitted that in complaint itself it is admitted that for the management reply was filed by the Head-Mistress. The learned counsel submitted that on the basis of the grounds mentioned in the reply, action was taken by the management and so, in view of the aforesaid provisions of section 499 of IPC, it cannot be said that the petitioner has committed offence of defamation. This Court holds that there is substance in this proposition made by the learned counsel for the petitioner.
9) The employer or superior authority of employee has the power to issue censure and also to issue show cause to ask explanation when there is allegation of misconduct against the employee. When some action like termination is taken by the authority or employer on few grounds and those grounds are mentioned as a reply before the authority before whom the grievance was taken by the employee about the termination, it ::: Uploaded on - 02/07/2018 ::: Downloaded on - 04/07/2018 01:24:23 ::: Cri.W.P.No.624/2017 7 cannot be said that the said reply was intentionally given to defame the employee. It needs to be observed here only that the Deputy Director was not proper authority to give direction to the Junior College to reinstate respondent No. 1, who was appointed on CHB. There is nothing with the respondents to show that he was appointed by following proper procedure and he was entitled to continue in service under any provision of law. In any case, if it is presumed that the Deputy Director was authority to consider the grievance, it was necessary for the institution to give reasons for the order of termination. Whether the reasons are correct or wrong, can be decided by proper authority, but due to giving such reasons, it cannot be said that there was intention to defame the employee.
10) The learned counsel for complainant placed reliance on some observations made by this Court and Supreme Court in two reported cases which are as under :-
(i) 2015 (2) Bom.C.R. (Cri.) 273 [Rahul Gandhi, M.P. Vs. Rajesh Mahadev Kunte & Anr.] and
(ii) 2018 (1) Bom.C.R. (Cri.) 399 [Mohammed Abdulla Khan Vs. Prakash K.].
The facts of those cases were totally different from the facts of the present matter. Those facts were not in respect of exception Nos. 7 and 8 given in section 499 of IPC. This Court holds that the ::: Uploaded on - 02/07/2018 ::: Downloaded on - 04/07/2018 01:24:24 ::: Cri.W.P.No.624/2017 8 observations made by the Bombay High Court and Supreme Court in aforesaid cases can be of no use to the respondent. This Court holds that the learned J.M.F.C. ought to have considered the aforesaid portion of section 499 of IPC. It was necessary for Sessions Court also to consider those exceptions, but the learned Judge of the Sessions Court has not considered those exceptions. In the result, following order is made :-
ORDER (I) The petition is allowed.
(II) The decision of the learned Additional Sessions Judge, Kopargaon dated 19.1.2017 given in Criminal Revision No. 26/2016 is hereby set aside. The criminal revision stands allowed. The order of J.M.F.C., Kopargaon dated 24.2.2016 made in S.T.C. No. 517/2015 of issue process against the petitioner for offences punishable under sections 499 and 500 of IPC is hereby set aside. The private complaint of respondent No. 1 stands dismissed.
Rule is made absolute in aforesaid terms.
[T.V. NALAWADE, J.] ssc/ ::: Uploaded on - 02/07/2018 ::: Downloaded on - 04/07/2018 01:24:24 :::