Emperor Vs. Babu Lal - Court Judgment

Excerpt:
act no. i of 1878 (opium act), sections 5 and 9 - master and servant--liability of master for act of servant. - 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]. - --we fail to see how it can be contended that under these circumstances a delivery of goods by the man in charge would not be a delivery by the owner of the shop. it is the delivery which the act makes penal, and the delivery by the manager is clearly in this case a delivery by the licensee.karamat husain and tudball, jj.1. this is a reference by the learned sessions judge of agra. the facts of the case are briefly as follows:--one babu lal was a licensed vendor of opium. one of the general conditions under which he was licensed to sell was that sales should not be made to children below the age of fourteen years. in his absence his sales-man sold opium to a person under the age of 14. both the sales-man and the licensed vendor have been convicted. the learned sessions judge is of opinion that the licensed vendor, babu lal, is not liable under the circumstances of the present case for the act of his servant. he has been convicted under section 9 of the opium act in that he has sold opium in contravention of the rules made and notified under section 5 rules made and notified under this section set out the general condition which we have mentioned above. the question is whether the master in the circumstances of the present case is liable for the act of his servant committed by the latter in the course of his employment but without the master's knowledge. in criminal reference no. 69 of 1890 a judge of this court held in similar circumstances in a case under the excise act of 1881 that the licensee was responsible for breaches of the conditions of his licence though not committed with his knowledge and permission. in the case of queen-empress v. tyab ali (1900) i.l.r. 24 bom. 423 a similar class of offence was also under consideration. that was an offence under section 22 of the indian arms act no. xi of 1878. a licensed vendor of arms and ammunition had employed a manager to conduct his business. in the absence of the licensed vendor and without his knowledge the manager delivered certain military stores to a person without previously ascertaining that such person was legally authorized to possess the same. it was held in that case that the master was liable. the court ruled as follows:-- 'we fail to see how it can be contended that under these circumstances a delivery of goods by the man in charge would not be a delivery by the owner of the shop. it is not a question of intention, of mens rea or of knowledge. it is the delivery which the act makes penal, and the delivery by the manager is clearly in this case a delivery by the licensee. the authorities are concurrent upon this point. in the attorney-general v. siddon (1830) 1 cr. and j. 220 the rule is thus stated: ' whatever a servant does in the course of his employment with which he is entrusted and as a part of it is the master's act.' this rule which is of general application so far as civil liability goes is applicable to certain criminal proceedings also.' the court then noted the instances of mullins v. collins (1874) l.r., 9 q.b. 292; coppen v. moore (1898) 2 q.b. 306 the former of which was a case in which a sales-man of a licensed victualler supplied liquor to a constable on duty and without the authority of his superior officer, and in which it was held that the licensed victualler himself was liable to be convicted. in our opinion the offence in the present case is similar to the offences considered in the above-mentioned cases. it is not a question of intention, mems rea or of knowledge. the licensee holds his shop on certain conditions. one of those conditions has been broken by his servant; and the mere act of selling opium in contravention of the conditions of his licence constitutes the offence, it is one of those cases in which the act of a servant is the act of the master. in our opinion the conviction of the master is legal. we therefore direct that the record be returned.