Abdullah Vs. Jitu - Court Judgment

Excerpt:
criminal procedure code, sections 87, 88, 89 - absconding offender--proclamation and attachment--sale of attached property--title of purchaser. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - it seems to me that section 89 prescribes a remedy where there is a good and legal publication, but offers no facility for the contesting of the legality of the proclamation.blair, j.1. three persona were sent before a magistrate to answer a charge under section 426 of the indian penal code. two of them presented themselves, the third was absent. the case was heard against the two who were present. upon their being convicted, the court showed its appreciation of the magnitude of their offence by inflicting on each of them a fine of re. 1. that amount was ordered to be given to the prosecutor, and the magistrate says that it would more than recoup him for any damage suffered. the magistrate also says that in his opinion the matter was so trivial that it was not desirable to waste time in pursuing the charge against the absent man. a few days after that determination of the case against the two, a fresh complaint was lodged against the third man by the prosecutor, and the magistrate rightly held that such a complaint was not barred by any rule of law. the magistrate entertained the complaint and issued his warrant for the arrest of the person charged. after some search had been made the magistrate found that the person for whom the warrant had been issued was absconding or concealing himself to evade process, and thereupon on the 12th september drew up a proclamation calling upon the person charged to appear at the court house at allahabad within thirty days of the date of proclamation. it is not dear whether there ever was complete publication as required by law of that proclamation. the provisions of sub-sections (6) and (c) appear to have been complied with upon the 17th september. there is nothing to show whether the provisions of sub-section (a) were ever complied with at all. there was no endorsement or statement in writing made by the court validating the proclamation. it is therefore obviously not a proclamation according to law. it did not specify a place and a time for the appearance of the absent man within thirty days or more from the date of the publication.2. apparently some form intended to amount to an attachment was gone through, but apparently the property, whatever it was, was allowed to remain in the possession of its original owner. a sale took place of what are described as houses. purchasers were found and, i suppose, the purchase money was paid. whether the possession of the property ever passed into other hands than that of the original owner is not clear. now these matters were brought to the attention of the district judge in an application for revision made by the absent man, and the judge refers to this court a statement of the facts coupled with a recommendation that further proceedings before the magistrate should be put a stop to, and the attachment and sale be cancelled, and the sale money returned to the purchasers. it has been objected to the judge's recommendation that the applicant in revision before him had and has his remedy under section 89 of the code of criminal procedure, which enables the subject of such a proclamation as this to prove within two years that he had not absconded to avoid the warrant, and that he had not sufficient notice of the proclamation to enable him to attend within the time specified therein. it seems to me that section 89 prescribes a remedy where there is a good and legal publication, but offers no facility for the contesting of the legality of the proclamation. the fact, however, remains that a sale has taken place; that the purchasers have acquired some sort of title, and i am not aware that this court in exercising its revisional power has ever passed an order affecting the title of persons (outsiders) to the legal proceedings in which the order is made. i therefore direct that the proceedings before the magistrate go no further, and must decline to make the order desired in respect of the order of attachment and sale of the property. it will be for the parties to seek elsewhere their legal remedies.