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Judgment
By this revision application, the applicant has challenged order dated 12/07/2018, passed by the Court of Assistant Sessions Judge, Yavatmal,
whereby an application for discharge (Exh.4) filed on behalf of the applicant was rejected.
The applicant herein was accused of having committed offences under Sections 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988,
as per FIR dated 21/07/2015, registered against her and another accused person. The complainant in the present case was an employee of a school in
which the applicant was working as Head Mistress. The allegation against the applicant was that she had directed the complainant, who was an
incharge class teacher in the school, to collect Rs.700/Â from each student towards fees for the academic session, although it was a girls school and
the students were not required to pay any amount towards fees, as per the policy of the Government. The school in question being a fully aided school,
such amount towards fees was not required to be collected.
As per the oral report, leading to registration of FIR, out of 97 students, 74 students deposited the amount while the remaining 23 students could not
do so and the applicant insisted upon the complainant to collect such amount, threatening that disciplinary action would be taken against him if there
was failure to collect such amount towards fees.
It is the case of the complainant that since he found that demand of such amount towards fees from the girl students was illegal, he approached the
officials of the Anti Corruption Bureau, who laid a trap against the accused persons. The trap was arranged on 21/07/2015 and when the complainant
went with the tainted notes, on directions given by the applicant, he was required to go to the Accountant for depositing the amount. According to the
complainant, when he went to the Accountant, he found that the Accountant was not available and, therefore, he handed over the amount to the other
accused person, a Junior Clerk in the school. Upon such amount being handed over to other accused person, the procedure of phenolphthalein test
was undertaken and, according to the officials of the Anti Corruption Bureau, the trap was successful because the said Junior Clerk had accepted the
amount on the directions of the applicant. On this basis, the aforesaid FIR was registered against the applicant and the said Junior Clerk.
Investigation was completed and chargesheet was filed. At this stage, the applicant filed an application for discharge under Section 227 of the
Criminal Procedure Code on the ground that sanction obtained by the prosecution from the Director of Education to proceed against the applicant was
defective, as the Director of Education was not the authority who had employed the applicant and said authority did not have power to remove her
from the post of Headmistress. It was also submitted on behalf of the applicant that there was nothing to show that she had demanded any amount
towards gratification and, therefore, the entire case of the prosecution did not raise any suspicion against her, much less any grave suspicion. The
prosecution filed its say in response to the said application and opposed it.
By impugned order dated 12/07/2018, the Court of Assistant Sessions Judge, Yavatmal, rejected the application for discharge, holding that the
Director of Education was having authority to remove the applicant from her post and that, therefore, it could not be said that the sanction was
defective. It was further held that the material on record was sufficient to proceed against the applicant and that it was not a case where it could be
said that the demand made by the applicant and its acceptance by other accused person was not illegal gratification.
Aggrieved by the said order, the applicant has approached this Court by filing the instant revision application. This Court had granted stay of further
proceedings before the Court below during pendency of the revision application.
Mr. S.R. Deshpande, learned Advocate for the applicant made two fold submissions. Firstly, it was submitted that appointing authority and
consequently the authority having the power to dismiss the applicant from service was the management running the school in question, under the
provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as “MEPS Act
and Rules) framed thereunder. It was submitted that the Director of Education was neither the appointing authority nor was it having authority to
dismiss the applicant from service.
It was pointed out that the conditions of service, from the stage of appointment of the applicant to removal from service were entirely governed by
the MEPS Act and Rules. The said provisions laid down a detailed scheme of the manner of employment and dismissal / removal from service,
including holding of enquiry against an employee like the applicant. It was submitted that the Court below had, therefore, committed grave error in
holding that the sanction could not be said to be defective because the Director of Education was having power to remove the applicant from her post
of Headmistress. By inviting attention of this Court to the Judgment of the Division Bench in the case of Sau. Jyoti Ramesh Upase Vs. State of
Maharashtra (Criminal Writ Petition No. 630 of 2018) passed on 21/10/2013, the learned counsel submitted that it was categorically held therein that it
was only the management of the school that was competent to remove an employee of the school and that the sanction granted by the Principal
Secretary in that case was defective. On that basis, the Division Bench allowed the Writ Petition and quashed the proceedings initiated against the
petitioner therein under the provisions of the Prevention of Corruption Act, 1988. The learned counsel also invited attention of this Court to another
Judgment of this Court in case of Smt. Archana Shaebrao Dhok Vs. State of Maharashtra and Anr. (Criminal Revision Application No. 27 of 2018)
decided on 22/12/2018, wherein it was held that sanction granted by the President of the Society managing a school, for prosecution of its employee,
was defective because under the bye laws of the Society it was only the Secretary of the management who could have granted sanction for
prosecution. It was submitted that the said Judgment also supported the submissions made on behalf of the applicant. The learned counsel further
invited attention of this Court to the Division Bench Judgment in the case of Stree Shikshan Prasarak Mandal and Ors. Vs. The State of Maharashtra
and Ors. (Writ Petition No. 5059 of 2017) decided on 21/11/2018, wherein it was held that under the MEPS Act and Rules, it was the management
who had the right to appoint suitable persons to various posts in the school and it was the management, which had the power to dismiss them.
Secondly, it was argued by the learned counsel for the applicant that looking to the allegations made in the present case, offences, if at all, could be
said to have been committed under the provisions of the Maharashtra Education Institutions (Regulation of Fees) Act, 2011, and that the prosecution
could not have been launched against the applicant under the Prevention of Corruption Act, 1988. It was submitted that on this ground also the
applicant deserved to be discharged. In support of the said contention, the learned counsel placed reliance on the Division Bench Judgment of this
Court in the case of Anant S/o Kacharu Hiwale & Anr. Vs. The State of Maharashtra & Ors. 2018 ALL MR (Cri) 748.
On the other hand, Mr. J.Y. Ghurde, learned APP appearing on behalf of the nonÂapplicant submitted that the order passed by the Court below in
the present case was justified and that no interference was warranted by this Court exercising revisional jurisdiction. It was submitted that the
Director of Education had been empowered specifically by Government Resolution dated 05/11/2015 to grant sanction in such cases under the
provisions of the Prevention of Corruption Act, 1988 and that in view of such authorization under the Government Resolution, which was never
challenged, the sanction granted for launching the prosecution against the applicant could not be said to be defective. It was submitted that reliance
placed on the Judgment of this Court in the case of Sau. Jyoti Ramesh Upase Vs. State of Maharashtra (supra), was misplaced because the said
Government Resolution dated 05/11/2015, was issued much after the said Judgment was passed and that, therefore, no fault could be found in the
impugned order in the present case. As regards the Judgment in the case of Smt. Archana Shaebrao Dhok Vs. State of Maharashtra and Anr.
(supra), it was submitted that the aforesaid Government Resolution dated 05/11/2015 was not brought to the notice of this Court and as long as the
said Government Resolution continued to operate and it was not set aside, the contention raised on behalf of the applicant regarding defective sanction
could not be accepted. The learned APP also submitted that the Judgment of the Division Bench of this Court in the case of Stree Shikshan Prasarak
Mandal and Ors. Vs. The State of Maharashtra and Ors. (supra), is not applicable to the facts of the present case. As regards the second limb of
argument pertaining to applicability of only the Maharashtra Educational Institutions (Regulation of Fee) Act to the facts of the present case, it is
submitted that the material brought on record clearly demonstrates the ingredients of offences under the Prevention of Corruption Act, 1988 and that,
therefore, the impugned order did not deserve any interference.
Heard learned counsel for rival parties and perused the material brought on record. The first submission regarding defective sanction raised on
behalf of the applicant is based on the contention that since the Director of Education is neither the authority for appointment nor for removal of the
applicant from the post of Headmistress, sanction granted by the said authority was invalid and, therefore, the discharge application filed by the
applicant ought to have been allowed. A perusal of the provisions of the MEPS Act and Rules shows that the said provisions lay down procedure for
appointment of teachers, headmistress and other staff in private schools as also for their removal. Even though the schools may be aided by the
Government, the provisions of the MEPS Act and Rules provide for power with the management running such schools to appoint and remove teachers
and for the post of Headmistress like the applicant herein, there is a detailed procedure provided in MEPS Act and Rules including constitution of
enquiry committees, holding of enquiries, submission of enquiry reports and removal from service upon being found guilty of charges levelled against
them. It is nowhere found in the MEPS Act and Rules that such power rests with Government functionaries, even if the schools are granted full aid by
the Government.
In fact, in the Division Bench Judgment of this Court in case of Sau. Jyoti Ramesh Upase Vs. State of Maharashtra (supra), this very aspect was
appreciated and it was found that sanction granted by the Principal Secretary for prosecution of Headmistress of a school was defective and that the
prosecution itself was quashed on that ground. It was held in the aforesaid case of Sau. Jyoti Ramesh Upase Vs. State of Maharashtra (supra) as
follows :
“The service conditions of the petitioner are governed by the provisions of the Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Act, 1977 hereinafter referred to as Act of 1977. The petitioner has been working as the Head Mistress of the school and as per the
provisions of Act of 1977 and the Rules framed thereunder, the appointment of the petitioner has to be by the “Management†as defined under
Section 2(12)(c) of the Act of 1977. Consequently, the Authority Competent to remove the petitioner from the service is the Management of the
school. The Investigating Officer had sought the sanction of the Management by the communication dated 22nd October, 2008 but the Management
had refused to grant sanction for the prosecution of the petitioner by the resolution dated 3rd January, 2009. In our view the prosecution of the
petitioner is illegal and cannot be continued as it is without there being proper sanction as required by the provisions of Section 19(1)(c) of the Act of
1977. The submission as made by the learned Additional Public Prosecutor that the order dated 6th May, 2011 issued by the Principal Secretary is the
sufficient compliance of the provisions of Section 19(1)(c) of the AntiÂCorruption Act, 1988 is misconceived and unsustainable in law. Though the
school is receiving grants from the State exchequer but as per the service conditions of the petitioner, the Management of the School only is the
Competent Authority to remove the petitioner from the service. Under the provisions of the Act of 1988 and the Rules framed thereunder the
Principal Secretary of School Education and Sports Department has no concern with the Management of the school in which the petitioner is working
and the Principal Secretary is not a Competent Authority to remove the petitioner from her office.â€
It was further held by this Court in the case of Smt. Archana Shaebrao Dhok Vs. State of Maharashtra and Anr. (supra) that even if the sanction
for prosecution had to be granted by the management, then it could be only in terms of power to grant such sanction in terms of the bye laws of such
management. It was found in the said case that when the bye laws of the management (society) authorized only the Secretary to grant sanction, such
sanction granted by the President of the society was invalid. On this basis, it was found that the Headmistress therein was correctly discharged by the
Court below for offences under the provisions of the Prevention of Corruption Act, 1988. Thus, upon analysis of the provisions of the MEPS Act and
Rules, it has been held that the sanctioning authority can only be the management, which runs the school, because it is the management which has the
power to appoint or remove the Headmistress and other teaching staff of the school. The reliance placed by the learned counsel for the applicant on
the Division Bench Judgment in case of Stree Shikshan Prasarak Mandal and Ors. Vs. The State of Maharashtra and Ors. (supra) is also relevant
because it has been held that employer  employee relationship between management and teaching staff is defined as per the provisions of the MEPS
Act and Rules and further it is only the management that has the power to make appointments on the basis of transparent procedure on various posts
in the school.
In the backdrop of said position of law clarified by the aforesaid Judgments of this Court, it cannot be said that sanction granted in the present case
for prosecution against the applicant by the Director of Education was sustainable because it was in terms of Government Resolution dated
05/11/2015. The said Government Resolution is nothing but an executive instruction issued by the State and such executive instructions can certainly
not prevail over statutory provisions of the MEPS Act and Rules and the aforesaid Judgment of this Court, wherein it has been categorically laid down
that only the management of the school has the power and authority to grant sanction for prosecution of a teacher or Headmistress for offences under
the provisions of the Prevention of Corruption Act, 1988. The said conclusion has been given in the aforesaid Judgment upon analysis of the provisions
of the MEPS Act and Rules and such position of law cannot be circumvented by issuing executive instructions in the form of aforesaid Government
Resolution dated 05/11/2015.
Thus, the contention raised on behalf of nonÂapplicant State that the Director of Education was competent to grant sanction for prosecution
against the applicant in the present case is wholly unsustainable and it is a fallacious argument raised on behalf of the nonÂapplicant State that as long
as the Government Resolution dated 05/11/2018 exists and it is not set aside, the Director of Education is entitled to grant sanction. This is because in
no case can an executive instruction like the Government Resolution dated 05/11/2015, prevail over the statutory provisions of the MEPS Act and
Rules and the Judgments rendered by this Court. Therefore, it is found that the Court below committed a grave error in rejecting the contention raised
on behalf of the applicant regarding defective sanction as ground for discharge.
The second limb of argument raised on behalf of the applicant pertains to the Maharashtra Educational Institutions (Regulation of Fee) Act, 2011.
It is the contention of the applicant that the nature of allegation made in this case, at worst, could lead to offences under the provisions of the said Act
and that in no case the applicant could be proceeded against under the provisions of the Prevention of Corruption Act, 1988. In the case of Anant S/o
Kacharu Hiwale & Anr. Vs. The State of Maharashtra & Ors. (supra), the Division Bench of this Court, in the context of the demand of money by
Headmistress of the school for admitting students in the school, upon analysis of the Maharashtra Educational Institutions (Regulation of Fee) Act,
2011, held as follows.
“10. After considering the submissions advanced by both the sides and going through the documents on record, we find that the petitioner No.2
demanded fee of Rs.3105/Â from Umesh Thombre for admitting his son Veer in the 1st std. in view of resolution passed by Parents Teachers
Association and approved by the management. The said amount was not demanded or accepted as an illegal gratification or for personal gain. The
word 'gratification' is defined in Section 7(b) of the Prevention of Corruption Act, as under :
(b) “Gratificationâ€. The word “gratification†is not restricted to pecuniary gratifications or to gratifications estimable in money.
Legal remuneration in Section 4(2)(c) reads as under :
4(2)(c) “Legal remuneration.†The words “legal remuneration†are not restricted to remuneration which a public servant can lawfully
demand, but include all remuneration which he is permitted by the Government or the organization, which he serves, to accept.
In Madhukar Joshi Versus State 2001 Cri.L.J. 175 SC : [2001 ALL MR (Cri) 188 (S.C.)] it is held hat the gratification must be treated in the
context to mean any payment for giving satisfaction to the public servant who received it.
In the facts of the present case, petitioner No.2, as per directions of petitioner No.1, received amount of Rs.3105/Â from Umesh Thombre as per
the decision of the management towards the expenses otherwise than the school fees. It cannot be termed as demand other than legal remuneration.
The demand and acceptance of the said amount was neither for the benefit of petitioner No.1 nor for petitioner No.2. The payment made was
accounted in the record of school and the profit & loss account discloses that the fees were collected. There are resolutions of Parents Teachers
Association prescribing the amount of fees. As per Section 19, such a complaint requires sanction of Dy. Director of Education or any superior
authority as may be authorized by the Government in this behalf.
It is altogether different case as to whether the said payment is legal or illegal. Even if it is illegal, it will be an offence under the provisions of
Maharashtra Educational Institutions (Regulation of Fee) Act, 2011 and the management will be responsible for receiving the payments. However, the
petitioners cannot be prosecuted for such act under the Prevention of Corruption Act. Therefore, the FIR filed by respondent No.2 against the
petitioners and prosecutions of the petitioners in pursuance thereof under the Prevention of Corruption Act, is not sustainable. We deem it necessary
to invoke inherent powers u/s 482 of the Code of Criminal Procedure to quash the FIR impugned and the prosecution under the Prevention of
Corruption Act. We make it clear that, if the recovery of the amount from the students by the petitioners as contrary to the provisions of the
Maharashtra Education Institutions (Regulation of Fee) Act, 2011, the concerned are at liberty to take appropriate action against the petitioners or the
management. Hence, the following order.
ORDER
The Writ Petition is allowed.
First Information Report bearing Crime No. 3071/2016 dt. 04.08.2016 registered against the petitioners at Chalisgaon Police Station, Dist. Jalgaon,
for offences under Sections 7, 12, 13(1)(d) R/w 13(2) of Prevention of Corruption Act, 1988 and the prosecution launched against them on the basis of
the same, is quashed.â€
On the basis of said reasoning the Division Bench of this Court quashed the prosecution launched against the accused, including Headmistress of
the school for offences under the provisions of the Prevention of Corruption Act, 1988. The ratio of the said Judgment is applicable to the present case
also, because collection of amount towards fees from the students of the school in the present case was an act at the behest of the management of
the school and, therefore, it would be inappropriate to invoke the provisions of the Prevention of Corruption Act against the applicant. It is also
relevant that in the present case, an affidavit of Secretary of the Management is placed on record wherein it is clearly stated that the Management
took a decision to collect specific amount from the students towards certain expenses. It is also stated that in accordance with such decision, the
Management gave a direction to the applicant i.e. the Headmistress to collect such amount. This further supports the case of the applicant.
In the light of above, it is found that the Court of the Assistant Sessions Judge, Yavatmal committed an error in rejecting the application for
discharge filed by the applicant. Accordingly, the present revision application is allowed and the impugned order dated 12/07/2018, passed by the Court
of the Assistant Sessions Judge, Yavatmal is quashed and set aside. Consequently, the application for discharge (Exh.4) filed by the the applicant
herein is allowed and the applicant is discharged in respect of the offences under Sections 7, 12, 13(1)(d) and Section 13(2) of the Prevention of
Corruption Act, 1988, arising out of Crime No. 3229/2015, registered at Police Station Wadgaon Road, Yavatmal.
Application is allowed in above terms.