Bombay High Court
Prakash Bhaskarrao Nandurkar And ... vs Ku. Saroj Panditrao Datir And Another on 8 November, 2017
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION (APL) NO.391 OF 2015
APPLICANTS: 1. Prakash Bhaskarrao Nandurkar, Aged
about 60 years, Secretary of Satchikitsai
Prasarak Mandal Shri Satya Sai Vidhya
Nagari, Yavatmal, Tq. and District
Yavatmal.
2. Sau. Jaishree Omprakash Mishra, Aged
about 45 years, Incharge, Head Mistress
of Dr. Nandurkar Vidyalaya, Shri Satya
Sai Vidya Nagari, Yavatmal, Tq. and
District Yavatmal.
-VERSUS-
RESPONDENTS: 1. Ku. Saroj Panditrao Datir, Aged about
29 years, R/o C/o Shri Dilip Tarpe,
Ujwal Nagar, Near Gulhane Kirana
Shop, Deep Nagar, Yavatmal, Tq. and
District Yavatmal.
2. State of Maharashtra (formal party)
Shri A. S. Kilor Advocate with Ms. Deepali Sapkal, Advocate for
the applicants.
Dr. A. De Advocate with Ms. Komal Mundle, Advocate for non-
applicant no.1.
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Shri A. Madiwale, Addl. Public Prosecutor for respondent no.2.
CORAM: A.S. CHANDURKAR, J.
DATED: NOVEMBER 08, 2017
ORAL JUDGMENT :
1. By this application filed under Section 482 of the Code of Criminal Procedure, 1973, order dated 9-4-2015 passed by the learned Additional Sessions Judge, Yavatmal is under challenge. By that order, the revision application seeking to challenge the order dated 27-6-2014 rejecting the application for dropping the proceedings as being barred by limitation has been rejected.
2. The facts in brief are that the non-applicant no.1 was in the employment with an institution of which the applicant no.1 was the Secretary and the applicant no.2 was the incharge Head Mistress. The services of the non-applicant were terminated on 23-6-2003. This order was challenged by filing an appeal under Section 9 of the Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1971 (for short, the said Act). The appeal ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:52 ::: APL391.15.odt 3/11 was allowed on 28th June, 2007 by directing reinstatement of the non-applicant no.1 with back wages. This order was challenged by the present applicants by filing Writ Petition No.3254/2007. By judgment dated 28-9-2007, the said writ petition was partly allowed. It was directed that if the services of the non-applicant no.1 were reinstated within a period of eight weeks, she would not be entitled for back wages. If, however, she was not reinstated within a period of eight weeks, the non-applicant no.1 would be entitled to execute the order of grant of back wages. This order passed in the Writ Petition attained finality on 31-1-2008 when the Letters Patent Appeal filed by the applicants came to be dismissed.
3. According to the non-applicant no.1, as there was non-compliance with the directions issued in the order of the School Tribunal as confirmed by this Court, she filed Contempt Petition No.142/2008. This contempt petition was disposed of on 4-8-2009 by observing that there was no wilful disobedience of the orders passed. It was clarified that the non-applicant no.1 was entitled for legal remedies available for executing that order. The miscellaneous application ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:52 ::: APL391.15.odt 4/11 seeking review of this judgment was disposed of on 10-2-2010. Thereafter, on 15-6-2010, the non-applicant no.1 filed a complaint under Section 13 of the said Act. The learned Magistrate on 21-2-2011 issued process only against the present applicants who were accused Nos.4 and 12. The applicants then filed an application for dropping the proceedings on the ground that they were barred by limitation. By order dated 27-6-2014 this application came to be rejected on the ground that it was not tenable. The applicants then filed revision application challenging this order. By the impugned order, the revision application has been dismissed.
4. Shri A. S. Kilor, learned Counsel for the applicants submitted that the Sessions Court committed an error in coming to the conclusion that the proceedings were filed within limitation. According to him, in view of provisions of Section 468 of the Code, the complaint ought to have been filed within one year from the date of commission of the offence. The offence as alleged was for non-implementation of the order of the School Tribunal that was passed on 20-6-2007. It was submitted that immediately on the expiry ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:53 ::: APL391.15.odt 5/11 of period of eight weeks, the non-applicant no.1 was sought to be reinstated in view of the communication dated 26-11-2007. Despite this letter, the non-applicant no.1 joined services on 24-10-2008. He referred to the findings recorded in the Contempt Petition as well as the review application to urge that it was clearly held that no wilful breach had been committed by the applicants in the matter of implementation of the orders passed in favour of non-applicant no.1. It was submitted that there was no continuing cause of action and the present proceedings had been filed after the review application came to be dismissed. It was also urged that separate execution proceedings for recovering the arrears of salary had been filed. According to the learned Counsel, continuation of this proceeding amounted to abuse of the process of law and the same was, therefore, liable to be quashed in exercise of the powers under Section 482 of the Code.
5. Dr. A. De, learned Counsel for the non-applicant no.1 supported the impugned order. It was submitted that the proceedings under Section 13 of the said Act were filed within limitation and process was rightly issued by the ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:53 ::: APL391.15.odt 6/11 learned Magistrate. It was submitted that two remedies were available for enforcing the order of the School Tribunal. The civil remedy was by way of execution while the present proceedings under Section 13 of the said Act were for disobedience of the order. After the review application was disposed of, the present complaint came to be filed on 15-6-2010. In view of Section 472 of the Code, the breach was continuing in nature and hence, it could not be said that the proceedings were barred by limitation. In support of his submissions, the learned Counsel placed reliance on the decisions in Vilas Shankarrao Deshmukh and another vs. S. A. Ghode, Principal, Navprabhat Vidya Mandir and others 2001 (1) Mh.L.J. 261, Saroj Pundlikrao Datir vs. Prakash Nandurkar and others 2009(6) Mh.L.J. 235, Shriprakash Chandmal Bora and anr. vs. Mutyal Vilas Rambau 2004(2) Mh.L.J. 927 and Shaikh Badarunnisa Begum Shaikh Abbas vs. State of Maharashtra and others 2004 (2) Mh.L.J. 407. It was, therefore, submitted that the impugned order did not call for any interference and the present proceedings deserve to be dismissed.
6. I have heard the learned Counsel for the parties at ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:53 ::: APL391.15.odt 7/11 length and I have also perused the documents filed on record. It is not in dispute that the order passed by the School Tribunal was challenged by filing Writ Petition No.3254/2007. In that writ petition on the concession made on behalf of the non-applicant no.1, time of eight weeks was granted to reinstate her and if the same was done she was held disentitled for back wages. The period of eight weeks came to an end on 23-11-2007. On 26-11-2007, a communication was issued by the applicants calling upon the non-applicant no.1 to join the services. The non-applicant no.1 joined her services on 24-10-2008.
7. At this stage, it is necessary to refer to the observations of this Court in the Contempt Petition that was filed by the non-applicant no.1. While considering the question as to whether there was any wilful disobedience of the order of stay, it was observed that the applicants had complied with the directions as regards reinstatement in view of communication dated 26-11-2007. Though the period of eight weeks expired on 23-11-2007, there were two intervening holidays. In this backdrop, it was held that it could not be said that the applicants had committed wilful ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:53 ::: APL391.15.odt 8/11 disobedience of the orders as passed. The finding to that effect is recorded in para 19 of that judgment and it was clarified that the legal remedy for executing the orders as passed could be taken. In the review application filed by the non-applicant no.1, this Court refused to review that order and observed that the original order could be executed by demanding back wages as well as salary. It is thus clear from the aforesaid order that on 4-8-2009 while dismissing the contempt petition as well as on 10-2-2010 while dismissing the review petition, it was held that there was no wilful disobedience of the orders passed in the proceedings.
8. In the proceedings filed under Section 13 of the said Act, it is the grievance of the non-applicant no.1 that aforesaid orders of the School Tribunal as well as the orders of this Court were not complied. These proceedings were filed on 15-6-2010 with the cause of action being shown as commencing from 20-6-2007. While according to the non- applicant no.1 there was a continuing cause of action, according to the applicants the proceedings ought to have been filed within a period of one year as per Section 468 of the Code. Proceedings under Section 13 of the said Act have ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:53 ::: APL391.15.odt 9/11 been held to be independent in nature in Shaikh Badarunnisa (supra). In Shriprakash Chandmal Bora (supra) it was held that if punishment is sought to be imposed, a criminal complaint can be filed and if execution is sought, the civil Court can be approached.
9. Under Section 13 of the said Act if the management fails without any reasonable excuse to comply with any direction issued by the Tribunal, the management could be liable on conviction to be punished. On perusal of the Contempt Petition as well as the application filed under Section 13 of the said Act, it is clear that the grievance of the non-applicant no.1 is with regard to non-compliance of the order of reinstatement within a period of eight weeks. For the purposes of the claim for back wages, separate execution proceedings have been filed which are pending. Under Section 468 of the Code, the complaint under Section 13 was required to be filed within a period of one year as the punishment if imposed was imprisonment for fifteen days. Under Section 472 of the Code, if there is a continuing offence a fresh period of limitation would begin to run at every moment of the time during which the offence ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:53 ::: APL391.15.odt 10/11 continued.
10. The facts indicate that pursuant to communication dated 26-11-2007, the non-applicant no.1 joined her duties on 24-10-2008. A separate dispute with regard to back wages and its recovery is pending. This Court in the Contempt Petition having recorded a specific finding that there was no wilful disobedience of the order passed by the School Tribunal or in the writ petition after noting the fact that the non-applicant no.1 had joined her duties thereafter, said finding cannot be ignored. In fact, the non-applicant no.1 joined her duties after a specific order in that regard was passed by this Court. The period of eight weeks having expired on 23-11-2007 and non-applicant having joined duties thereafter the grievance, if any, under Section 13 was required to be made within a period of one year from 23-11-2007 or even from the date of joining which is 24-10-2008. It having been specifically held in the Contempt Petition on 4-8-2009 as well as on 10-2-2010 that there was no wilful disobedience in the matter of reinstatement, the alleged offence in that regard cannot be said to be of continuing nature. The complaint under Section 13 of the ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:53 ::: APL391.15.odt 11/11 said Act having been filed on 15-6-2010, it is clear that the proceedings were barred by limitation. The learned Magistrate ought to have allowed the application at Exhibit-
47. The Sessions Court also committed an error by holding that the offence was continuing in nature especially when the order of reinstatement was complied with and the petitioner had joined duties.
11. In view of aforesaid, the order dated 27-6-2014 passed below Exhibit-47 as well as the judgment of the Sessions Court in Revision No.66/2014 are quashed and set aside. The application below Exhibit-47 is allowed in terms of its prayer. The criminal application is allowed in aforesaid terms with no order as to costs.
JUDGE /MULEY/ ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:53 :::