Oral Judgment :
1. This appeal under Section 378 of the Code of Criminal Procedure is directed against the judgment and order dated 27th March, 2008 passed by the learned Judicial Magistrate, First Class, Court No.9, Nagpur in S.C.C. No.514 of 2004. The complainant, being aggrieved by the judgment and order of acquittal of Ramesh Motiramji Patil of the offence punishable under 11(3) r/w. Section 13 (1) of the Maharashtra Employees Private School (Conditions of Service) Act, 1977 (hereinafter referred to as â the M.E.P.S. Act â), has prayed to quash and set aside the impugned judgment and order of acquittal.
2. The contention raised on behalf of the appellant is that the judgment delivered by the learned trial Magistrate is bad in law in the facts and circumstances of the case. The respondent/accused ought not to have been acquitted.
3. The facts, briefly stated, are as under:
That the complainant had lodged a complaint against four accused persons alleging that, when the complainant had approached the School Tribunal with a request to reinstate him in the school, the application was decided exparte in favour of the complainant on 15th January, 1999 whereby the accused were directed to reinstate the complainant with all backwages. The complainant had also moved Misc. Application No.298 of 1999 for contempt of Court in the High Court which was decided on 8.9.2000. Finally, the complainant chose to lodge complaint in the Court of the learned Judicial Magistrate, First Class, 9th Court, Nagpur.
4. Accused Smt. Pramilabai Shivhari Pant Kakde Patil died during pendency of the Criminal case and the case abated as against her. While the names of accused no.3 Mahesh Kalashgaonkar, Education Officer (Secondary), Zilla Parishad, Nagpur and Mr.M.N.Kapgate, Deputy Director of Education (Secondary), Nagpur were deleted at the instance of the complainant. Thus, the respondent/accused herein was facing trial on the ground that he committed offence punishable under Section 11(3) r/w. Section 13(1) of the M.E.P.S. Act. The learned trial Magistrate, which framed charge against the respondent/accused and heard the trial, held that the complainant has failed to prove that, between the period from 15.1.1999 to 5.5.2004, he was neither reinstated nor was paid emoluments by the respondent/accused. The trial Magistrate held that no offence, as alleged, was proved.
5. It appears that, regarding alleged termination of the complainant on 24.9.2006 by the respondent/accused, no any documentary evidence was placed before the learned trial Magistrate. According to the learned trial Magistrate, no original document nor any certified copy was produced or proved and the evidence of complainant was not supported by cogent and documentary evidence on record. It also appears that the complainant had frankly admitted that he had not joined his services. Since the respondent/accused in Appeal No.209 of 1996, which was preferred before the School Tribunal, Nagpur, was not made party nor he was serving as a Head Master in the college under reference at the relevant time, penal liability cannot be imputed to him on the ground that he had flouted the order of School Tribunal or had not complied with it on the ground that he was neither a party to the proceedings in appeal nor he was expected to comply with the order in absence of direction made against him by the School Tribunal. Furthermore, the complainant, although the order made by the School Tribunal is executable in accordance with the provisions of the Civil Procedure Code, did not file any execution proceedings to insist upon execution of the order by the persons concerned from the School Management. It was obligatory on the part of the complainant, when the School Tribunal has passed an order in his favour and the respondent/accused was not made party to the appeal, to insist upon execution of the order passed by the School Tribunal by appropriately exhausting the remedy of execution proceedings, as contemplated under the Civil Procedure Code. But this was not done. The learned trial Magistrate also noted the relevant provisions and the fact that Section 11(3) of the MEPS Act merely empowers the Tribunal to make recommendation to the State Government. Thus, in absence of convincing and documentary evidence as against the respondent/accused to the effect that he had deliberately flouted the order of the Tribunal, there was no reason for the Tribunal to pass an order in favour of the complainant to reinstate him with payment of backwages. He had remedy to execute that order. He could not have prosecuted the respondent/accused, particularly, when the accused was not made party to the appeal before the School Tribunal in which the direction of reinstatement of the complainant with payment of backwages was given.
6. According to the learned Advocate for the appellant, the respondent/accused was made party in the contempt proceedings in his capacity as a Head Master. But, he fairly conceded that the respondent/accused was not named specifically as a party/respondent in the appeal before the School Tribunal, but he was merely joined by official designation as a âHead Masterâ. The learned Advocate for the respondent submitted that there was admission on behalf of complainant that the accused was not a Head Master on the day when direction by the School Tribunal was given.
7. Be that as it may, Section 11(3) of the MEPS Act only provides that â it shall be lawful for the Tribunal to recommend to State Government that any dues directed by it to be paid to the employee, or in case of an order to reinstate the employee any emoluments to be paid to the employee till he is reinstated, may be deducted from the grant due and payable in future, to the Management and be paid to the employee direct.â This is how the Tribunal's orders are satisfied through recommendation made to the State Government pursuant to the directions from the Tribunal. The appellant is not remedyless in seeking such a direction from the Tribunal as is permissible to execute the order passed by the Tribunal since decision of the Tribunal has binding force on the employee and the management. Imposition of penalty u/s.13(1) will arise if there is deliberate disregard or wilful disregard on behalf of the Management to comply with any direction issued by the Tribunal. Therefore, in the facts and circumstances of the case, the view taken by the learned trial Magistrate was reasonable. In an appeal against acquittal, the presumption of innocence in favour of the accused gets strengthened by an order of acquittal and even if other probable view may be taken, the High Court would not normally interfere with an order of acquittal. For all the above reasons, the appeal has to fail.
It is made clear that the appellant can move for execution of order of the Tribunal as permissible in law.
The appeal is dismissed. No order as to costs.