Dulli Vs. Mangli and ors. - Court Judgment

Excerpt:
- 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]. 1. on an application made by a relation of a deceased person a learned judge of this court issued notice to four persons to show cause why the sentence passed on them by the learned sessions judge of fatehpur should not be enhanced. the four men have been convicted of an offence under section 323 of the indian penal code and the maximum sentence has been passed. the question, therefore, will arise of an alteration in the conviction if the sentence has to be enhanced.2. the facts as found by the learned judge are that one maiku was attacked with lathis by these four men and extensive injuries were caused to him. he died immediately after, and at the post mortem examination it was found that his ribs had been broken. according to the medical witness death was due to rapture of the spleen resulting from the fracture of the ribs. the spleen was not enlarged. the learned judge acquitted the accused persons of an offence under section 302 of the indian penal code but did not consider whether an offence under section 325 of the indian penal code was committed or not.3. the learned assistant government advocate pointed out that under section 439 of the code of criminal procedure this court was precluded from converting the finding of acquittal under section 302 into one of conviction as there was no government appeal. this has been laid down by a bench of this court in the case of emperor v. sheodarshan air 1922 all 487 and in a judgment of the learned chief justice in nand ram v. khazan air 1921 all 266. in the present case however we do not propose to alter the acquittal under section 302 of the indian penal code to one of conviction under that section. the injuries were caused not on the head or neck but on the lower portion of the body and it appears likely that the accused persons had not the intention of causing death. there is also no evidence that the injuries intended to be inflicted were sufficient in the ordinary course of nature to causa death. the medical witness has not stated that fracture of the ribs in the ordinary course would lead to a rupture of the spleen.4. the question at issue is whether upon the facts disclosed and found by the lower court a conviction under section 325 should be recorded or not. there has been no acquittal of the accused persons of an offence of causing grievous hurt, so we are of opinion that we are not precluded from convicting the accused persons of that offence by reason of clause (4) of section 439 of the criminal procedure code. it is certain that maiku's ribs were fractured during the beating given to him by the accused persons and it ought to make no difference whether the ribs were fractured by lathi blows or by maiku being knocked down on the ground. the extensive marks of injuries found on maiku's person at the time of the post mortem examination leave no doubt that the intention of the accused persons was to cause grievous hurt. there is no suggestion made on the part of the defence that the ribs were not fractured during this particular beating. the defence that maiku was beaten two days earlier and died from the effects of the injuries received then has been negatived by the medical evidence which is to the effect that the injuries were such as to result in death immediately after they were received. after such injuries the injured parson could not have survived for two days.5. we do not agree with the observation of the learned judge: 'it cannot be presumed that the accused nos. 2 to 5 caused the fracture of the ribs.' when there is no evidence or suggestion that the ribs were fractured otherwise than during this particular beating, the presumption is that they were fractured by the act of the accused persons even though they may not have been fractured as the direct result of lathi blows.6. in the result we alter the conviction to one under section 325 of the indian penal code and enhance the sentence in each case to rigorous imprisonment for five years.