Hakim Nawab Ali Vs. Emperor - 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]. - the sessions judge has recommended that the conviction be quashed. we can clearly derive no assistance from this rule.bennett, j.1. this is a reference by the sessions judge of cawnpore arising out of the suspension of a gun licence held by one hakim s. nawab ali. the licence was suspended by the. city magistrate of cawnpore and thereafter hakim s. nawab ali was prosecuted and convicted under section 19(f), arms act, because a number of cartridges were found in his possession. he had handed over his gun and licence when the latter was suspended. the sessions judge has recommended that the conviction be quashed.2. the question raised in the reference is whether the city magistrate had power to suspend the licence. section 18(a), arms act provides that a licence may be cancelled or suspended by the officer by whom it was granted, or by any authority to which he may be subordinate, or by any magistrate of a district, or commissioner of police in a presidency town, within the local limits of whose jurisdiction the holder of such licence may be, when, for reasons to be recorded in writing, such officer, authority, magistrate or commissioner deems it necessary for the security of the public peace to cancel or suspend such licence. the sessions judge has assumed that the licence in this case was granted by the district magistrate, and nothing has been said against this assumption.' if the licence was not granted by the city magistrate, the city magistrate had no power to cancel or suspend the licence unless the expression 'any magistrate of a district' applies to him. the magistrate concerned has understood this expression to mean any magistrate having jurisdiction within a district and he has referred to rule 175, u.p. arms rules and orders as indicating that a sub-divisional magistrate has the power. the city magistrate of cawnpore, he adds, exercises the powers of a sub-divisional magistrate in the city.3. rule 175 certainly implies that a sub-divisional magistrate may cancel or suspend a licence, but there is more than one reason for holding that the provision in rule 175 could not confer power on a sub-divisional magistrate not empowered by section 18(a). rule 175 merely requires a district magistrate or a sub-divisional magistrate who cancels or suspends a licence, to state in writing the reasons for his order and provides for an appeal against the order. rule 175 does not give any support to the view that any magistrate, even a third class magistrate, has the power. such a provision referring only to the power of cancellation or suspension by a district magistrate or a sub-divisional magistrate would not have been made, if it had been thought that a magistrate of inferior jurisdiction had the power, that is, leaving such inferior magistrate to exercise the power unfettered by the condition imposed by this rule in the case of a district magistrate or a sub-divisional magistrate. the rule, therefore, so far from supporting the magistrate's view, provides an argument against it.4. moreover, there is no express conferment of power by rule 175. the rule merely implies that a district magistrate or a sub-divisional magistrate has or may have the power. a rule inconsistent with the provisions of the act would have no validity. but there is, we think, no conflict between the rule and the section because a sub-divisional magistrate might be empowered to grant a licence, in which case he would also have the power under section 18(a) to suspend it. section 17 of the act provides that the governor-general in council may by notification make rules to determine the officers by whom a licence may be granted. we can clearly derive no assistance from this rule.5. if we had no guide to the meaning of the expression 'any magistrate of a district,' there might be some force in what the magistrate concerned says. the expression might be construed as meaning any magistrate having jurisdiction within a district. but section 8(2), criminal p.c., provides that the expression 'magistrate of the district' shall be deemed to mean 'district magistrate.' sub-section (2) of section 3 defines in this way this and other expressions occurring in enactment passed before the code of criminal procedure came into force. the code came into force in 1898, while the indian arms act is of the year 1878. having regard to the terms of this section we must apply the definition if there is no reason to doubt its applicability.6. the only difference to be observed between the expression in section 8(2), criminal p.c. and that in section 18(a), arms act is that in the former the expression is 'magistrate of the district,' while in section 18(a) it is 'magistrate of a district.' but we are unable to hold that this difference is of any significance. nor do we think that there is any force in the argument of the magistrate that the use of the word 'any' before 'magistrate' supports the view taken by him. if we hold that 'magistrate of a district' means 'district magistrate,' the provision in section 18(a) means that the licence may be cancelled or suspended by any district magistrate. the word 'any' does not, therefore, we think, at all affect the construction of the expression.7. this conclusion may also be supported by the improbability that this power of cancellation and suspension would have been conferred on magistrate of inferior powers not empowered to grant licence. the position of the other authorities referred to in section 18(a), namely, the officer empowered to grant the licence or some higher authority to whom he is subordinate or a commissioner of police in a presidency town, suggests an intention to confine the power to officers of superior status. it is altogether improbable, in our opinion, that such power would have been given indiscriminately to all magistrates. we accordingly accept this reference and quash the conviction of hakim s. nawab ali under section 19(f), arms act and the sentence of fine imposed thereunder. the fine, if paid, must be refunded.