The petitioner an educational society challenges the order dated 16-3-1993 passed by Presiding Officer, School Tribunal, Amravati, whereby the Tribunal held that it had jurisdiction to direct the petitioner to implement the decision of this High Court under Section 11(3) of Maharashtra Employees of Private Schools (Regulation of Conditions of Service) Act 1977 (hereinafter referred to as M.E.P.S. Act) and directed the petitioner to pay to respondent No.1 amount of Rs.288401/- within 40 days and in default recommended to the Government to deduct an equal amount from grants due & payable to the petitioner in future and to pay the same to respondent No.1. This court has issued notice before admission initially on 3rd August, 1993 and at that time it found that the amount was recovered by respondent No.1 and as such there was no question of staying further recovery. However, on 6th August, 1993 it was brought to notice of this court that part of amount was still not recovered and as such this court granted interim stay which was confirmed on 3-12-1993.

2.Petitioner initially appointed respondent No.1 as Headmaster but he was reverted later on by resolution dated 11-10-1983 as management found that injustice has been done to one Shri P.M. Joglekar. Respondent No.1 approached respondent No.3 School Tribunal in appeal challenging his reversion but said appeal was dismissed on 710-1986. Respondent No.1 thereafter approached this court in Writ Petition number 2263 of 1986 and it came to be allowed on 8-3-1990. This court set aside the resolution of reversion and also the order of Tribunal dated 7-10-1986 and directed the petitioners to restore respondent No.1 to the office of headmaster with continuity of service and all back wages. It is the case of petitioner that during pendency of writ petition 2263 of 1986, respondent No.1 was paid salary as Assistant Teacher from March 1984 till 7/11/1988. Till then, respondent No.1 exhausted all types of leaves available to him/to his credit and his subsequent leave beyond 7-11-1988 became leave without pay. Respondent No.1 reported on duty after High Court allowed his writ petition and joined from 3-4-1990. The difference between amount payable to him as headmaster and assistant teacher as per order of High Court worked out to Rs.13191.45 only and it was duly paid and received by respondent No.1. The petitioners contend that accordingly the orders of this court dated 8-3-1990 stood complied with. Respondent No.1 was not satisfied with this payment and he continued to insist for payment of salary even for the period which came to be treated as leave without pay by management. As the management did not accede to his demand, he filed Contempt Petition number 234 of 1991 and on 9-9-1992, division bench of this court found that there was genuine dispute about the interpretation and effect of the order of High Court in writ petition and as such it was not the case of deliberate non-compliance.

The High Court therefore dropped contempt proceedings with liberty to contempt petitioner (present respondent No.1) to raise dispute before appropriate forum. Respondent No.1 thereafter filed application under section 11(3) and section 13 of MEPS Act and claimed the balance salary for entire period including the period which was treated as leave without pay by Petitioners. Respondent No.3 School Tribunal issued notice and made it returnable on 7-12-1992. Accordingly Petitioner from Yavatmal sent Headmaster to appear in those proceedings but on account of unfortunate event dated 6-12-1992 (Babri Masjid), curfew was clamped in Aurangabad city and the Headmaster could not attend the Tribunal. Said Headmaster had carried with him an application raising objection to the very jurisdiction of the Tribunal and also an application seeking better particulars from present respondent No.1.

However, the same could not be filed and as such after his return to Yavatmal, those applications were forwarded by post to the Tribunal. The petitioner states that it did not learn anything thereafter and only got knowledge after the Tribunal delivered impugned order.

3.I have heard Advocate Mihir Kanade for petitioner and advocate S.P. Bhandarkar for respondent No.1. Smt. Taiwade, AGP appeared for respondents No.2 and 3.

4.Advocate Mihir Kanade contended that in view of the unfortunate incident dated 6-12-1992, petitioner could not participate in proceedings on 7-12-1992 before Tribunal. He contends that in such circumstances the Tribunal ought to have issued notice of next date to the petitioner. He further states that the Tribunal received two applications moved by petitioner through post and its copies were given to respondent No.1 by Tribunal on 21-1-1993. Respondent No.1 in turn filed his reply through post on 28-1-1993. After 21-1-1993, proceedings were adjourned to 15-2-1993 and thereafter to 6-3-1993. These two sitting were held at Akola by the Tribunal and not at Aurangabad. As nobody appeared on these two dates for Petitioners, Tribunal delivered the impugned order on 16-3-1993. He contends that all these dates that is 21-1-1993, 15-2-1993 and 6-3-1993 were without any notice to the petitioner. He further argues that the School Tribunal did not decide preliminary objection about jurisdiction and also application seeking better particulars moved by petitioner and kept the same pending. Thus, the procedure followed is faulty and the Tribunal ought to have considered the issue about jurisdiction at least. He states that the impugned order is thus in breach of principles of natural justice and therefore unsustainable. He further urges that application as filed by respondent No.I was not maintainable under section 11 or under section 13 of MEPS Act as no recovery is permissible and contemplated under those provisions. According to him, powers under section 11 are to be exercised while deciding the appeal and the Tribunal is rendered functous officio after the appeal is disposed of. Learned Advocate relies upon provisions of chapter XVII rules 21 to 26 of Bombay High Court Appellate Side Rules to point out that unless and until registry/office of High Court transfers the judgment/order of High Court for execution, the same could not have been executed by Tribunal.

He places reliance upon judgment of learned single Judge of this court in case between Kadarbhai Noorrali Vs. The State of Maharashtra reported at 1985 (1) Bom.C.R. 104 in support of this proposition. He has also relied upon judgment of this court reported at 1965 Mh.L.J.203 (Salubai Ramchandra Vs. Chandu Sadhu) to point out relevance of Appellate Side Rules. He states that in the shape of section 141 and 39 of CPC and Appellate Side Rules, a mechanism has been evolved to provide for check and balance in the matter of execution of orders passed by High Court. When the Appellate Side Rules require particular thing to be done in particular manner, he contends that it must be done in that manner only and in no other way. He has relied upon judgment of Honble Apex Court in A.I.R. 1964 SC 358 [LQ/SC/1963/192] between State of Uttar Pradesh Vs. Singhara Singh in support. He also relies upon the judgment of Honble Apex Court reported at A.I.R 1975 SC 2299 [LQ/SC/1975/439] between Indira Nehru Gandhi Vs. Raj Narian to contended that expressly laid down mode of doing something necessarily prohibits the doing of that thing in any other manner. He has invited attention of court to the impugned order of Tribunal to show that it does not consider the dispute and there are absolutely no reasons assigned for quantifying the amount allegedly held due to respondent No.1. He states that the serious dispute about the entitlement of said respondent to claim salary for the period treated as leave without pay and said dispute has not been adjudicated upon in the matter. He, therefore, requests the court to dismiss the proceedings as filed by respondent No.1 before Tribunal or, in any case, to remand the matter back to Tribunal for giving opportunity to the petitioner to place its side before it.

5.Per contra, Advocate S.P. Bhandarkar points out that the office of School Tribunal was functioning at Aurangabad on 7-12-1992 and the petitioner did not appear. He states that petitioner also did not care to verify the further progress of the matter for more than four months thereafter. He argues that if respondent No.1 can appear at Aurangabad and thereafter at Akola, the petitioner also could have appeared with exercise of little diligence. He states that though much hue and cry is being made about the amount quantified by Tribunal, in petition there is no challenge to the quantification. He asserts that the contempt was dropped by Division Bench by giving liberty to respondent No.1 and accordingly, proceedings before Tribunal came to be filed. He states that denial of full remuneration for the entire period by contending that part of it is treated as leave without pay, is nothing but dishonest and malafide act on part of petitioner. He invites attention to rule 27 of chapter XVII of Appellate Side Rules to support the execution by School Tribunal. He states that such ground is not expressly raised in the petition. Vehemently he states that the Petitioner are guilty of laches and negligence and their writ petition should be dismissed. He further places reliance upon the judgment of Honble Apex Court reported at 2003 (6) SCC 675 [LQ/SC/2003/758] between Surya Dev Rai Vs. Ram Chander Rai to contend that in such circumstances this court should not exercise its extraordinary powers under article 226 and 227 of Constitution of India. Learned AGP Smt. Taiwade has adopted his arguments.

6.Here, on 7-10-1986, the Tribunal dismissed appeal filed by present respondent No.1 and he challenged that dismissal in writ petition 2263 of 1986 under Articles 226 and 227 of Constitution of India before this court. Said writ petition was considered by Division Bench and on 8-3-1990 the petition came to be allowed. This court quashed and set aside the resolution of termination passed by present petitioners on 11-10-1983 and also the judgment of School Tribunal dated 7-10-1986. However, this court did not stop there but directed the management to restore present respondent No.1 to the post of Headmaster with continuity of service and all back wages. Thus the earlier judgment of this court needs to be considered in this background & reference to 2003 (6) SCC 675 (supra) in this respect is also useful. The Honble Apex Court has considered effect of amendment to the provisions of Section 115 of CPC by Act No.46 of 1999 with effect from 1-7-2002 and held that though interlocutory orders are not reviewable under section 115, still under certiorari and supervisory jurisdiction of High Court under article 226 and 227, review is possible. In said judgment, the Honble Apex Court has also considered difference in nature and ambit of power under Articles 226 and 227 and in paragraph 38(9) observed that:

"In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue writ of certiorari, the High Court may annul or set aside the act, order or proceedings of subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate courts as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate Court as the court should have made in the facts and circumstances of the case."

7.When the earlier judgment of this court dated 8-3-1990 in writ petition 2263 of 1986 is perused it is apparent that this court has not only quashed and set aside the order of School Tribunal, but also passed an order granting relief to petitioner which the learned Presiding Officer of School Tribunal ought to have granted him. The respondent management therein (petitioner herein) has been directed to restore present respondent No.1 to the office of headmaster with continuity of service and all back wages. Thus, it is apparent that this court has exercised supervisory jurisdiction and has in fact passed an order which the School Tribunal itself ought to have passed. Thus, the adjudication by High Court and its decision substitutes the order of School Tribunal insofar as parties are concerned. The impugned order dated 16-3-1993 needs to be viewed in this background. Question is whether in view of provisions of Chapter XVII of High Court Appellate Side Rules mentioned above it is necessary for respondent No.1 to obtain order transmitting the High Court order dated 8-3-1990 for execution to the School Tribunal.

8.Rules 21 to 27 of chapter XVII deal with procedure for execution of orders. Rule 21 prescribes that every order passed in Civil applications under article 226 of Constitution including the order as to costs shall be drawn up as if it were a decree and shall be executable as a decree in the manner provided in the Code of Civil Procedure. Rule 22 states that application reporting non satisfaction to the state government of any order decree passed in any Civil application under Article 226 of Constitution shall be supported by an affidavit of the applicant and shall be accompanied by a certified copy of the decree order. Sub-rule 11 thereof states that such applications shall be heard and disposed of by the Registrar. Subrule 11(1) prescribes that if the Registrar is satisfied that order or decree is not satisfied within the time specified therein and the execution of the order or decree is not barred by the provision of law, he may make a report of non satisfaction to the state government. Rule 23 deals with procedure for execution of orders or decrees on the original side and states that after non-satisfaction is reported to state government, such decree or order can be transmitted to original side of High Court for execution and, if so transmitted, shall be executed in accordance with the procedure prescribed for execution of decrees orders passed in exercise of ordinary original civil jurisdiction of this court. Explanation thereto states that such decree or order in matters decided at Nagpur Bench will be transmitted to court of competent Civil jurisdiction for execution.

Rule 21 prescribes procedure for transmission and the Registrar, when transmitting the decree or order, has to send all documents necessary to be sent under provisions of order 21 rule 6 of the Code of Civil Procedure and such other documents as he may deem necessary to the court to which decree or order is transmitted for execution. It also permits such transmission by registered post to the court concerned. Rule 26 permits Registrar to make reference to the court if there is any doubt or difficulty. Rule 25 permits the court receiving the papers for execution to issue notice under order 21 rule 22 and to determine all questions arising out of or in relation to such execution. In contrast to this, rule 27 permits execution of orders passed by High Court under article 227 in same manner in which orders made by the court or Tribunal against which application under article 227 has been made, could have been executed under the law.

9.As already stated above, the judgment of this court dated 8-3-1990 is in supervisory jurisdiction and, also in view of the judgment of Honble Apex Court i.e. 2003 (6) SCC 675 (supra), it is in fact substituting the order of School Tribunal. The scheme of Appellate Side Rules mentioned above reveals that if there is no earlier adjudication between parties and the High Court is acting as first court resolving such controversy between them, the order of High Court is required to be transmitted to competent Civil court for execution through the Registrar. However, if there is previous adjudication and the High Court is considering correctness or otherwise thereof in Writ jurisdiction, if the order passed by High Court is executable, the same can be executed by the lowest court who could have passed such executable order. Here, the School Tribunal was the court which decided appeal earlier and that decision is substituted by High Court vide its decision dated 8-3-1990. Thus, for the purposes of execution, the order of High Court is to be treated as order passed by the School Tribunal and is to be executed accordingly. There is no question of reporting non-satisfaction or approaching Registrar or transmission of said order/judgment to the competent Civil court for execution. The grievance made in this respect by learned counsel for Petitioner is misconceived and is accordingly rejected. Reliance on Kadarbhai Noorrali Vs. The State of Maharashtra reported at 1985 (1) Bom.C.R. 104 is also misconceived because the High Court there did not consider provisions of rule 27 of High Court Appellate Side Rules or the similarity of parameters in exercise of jurisdiction in case of writ of certiorari and supervisory jurisdiction. The above mentioned Apex Court ruling was also not available and that aspect has not been considered. I find that said ruling therefore does not govern the present facts and circumstances. Judgment of Honble Apex Court in A.I.R. 1964 SC 358 [LQ/SC/1963/192] between State of Uttar Pradesh Vs. Singhara Singh & one reported at A.I.R. 1975 SC 2299 [LQ/SC/1975/439] between Indira Nehru Gandhi the Vs. Raj Narian or the argument developed by petitioner by placing reliance upon the judgments are therefore not relevant.

10.After the High Court judgment dated 8-3-1990, respondent No.1 filed application under section 11(3) and section 13 of MEPS Act before the respondent No.3 Tribunal. The Tribunal by impugned order has allowed that application and has directed the present petitioner to pay to respondent No.1 amount specified in the order within particular time and in default, has recommended to state government to deduct equal amount from the grants dues pay table to Petitioners and to recover said amount accordingly and to hand it over to present respondent No.1. Petitioners contend that even this order could not have been passed. However, perusal of section 11(3) reveals that the legislature has authorised Tribunal to recommend to State Government deduction of amount of any dues directed by it to be paid to the employee from grants due and payable or grant which may become due and payable in future to the management and to pay it to the employee directly. Thus, impugned order is not without jurisdiction. The argument of petitioner that direction under section 11(3) can be given only when appeal is being finally disposed of & not thereafter or the Tribunal loses its power to pass such orders once the appeal is finally disposed of also does not hold any water. Section 11 itself stipulates types of orders Tribunal can pass while setting aside the order of management. Thus orders/ directions contemplated in sub-clause (a) to (f) of sub-section 2 of section 11 can be passed while disposing of the appeal finally. Sub-section (3) is an independent provision and said sub-section does not require that the School Tribunal must exercise power to make recommendation to state government about deduction from grant at the time of final disposal of appeal only and not thereafter. When sub-section (2) and sub-section (3) are seen together it is apparent that School Tribunal can make recommendation contemplated by section 11(3) at any time and the objection of petitioner in this respect is untenable.

11.However, I find that there cannot be any serious debate about the fact that petitioner forwarded its headmaster from Yavatmal to Aurangabad to attend the date before Tribunal on 7-12-1992. The Petitioners immediately forwarded two applications to the Tribunal by post from Yavatmal and the Tribunal received those applications. The Tribunal in fact handed over copies of these applications to respondent No.1 on 21-1-1993 for filing reply & said respondent filed his reply through post on 28-1-1993. Thereafter, Tribunal held next two sittings at Akola. The Tribunal was aware of unfortunate incidence which occurred a day prior to the date fixed by it for first appearance of parties and also that it could not function for full-day on 7-12-1992. Even if it is presumed that contention of respondent No.1 that Tribunal functioned for two hours on 7-12-1992 is correct, still it will not make any difference because, in such circumstances, the Tribunal ought to have given due importance to the fact that it could not sit for the whole day for entire working hours and the parties before it were coming from all over Maharashtra. Said Tribunal or even this Court cannot ignore the situation then prevailing and cannot be too technical about the absence of petitioner before Tribunal on 7-12-1992.

The Tribunal received applications raising objection to its jurisdiction and seeking better particulars filed by petitioner and, therefore, got a notice of fact that the petitioner was interested in prosecuting the matter. In such peculiar situation, Tribunal ought to have issued notice to the petitioner to appear either at Aurangabad or at Akola on date fixed by it for that purpose. It is not the case of respondent No.1 that any such notice was issued to petitioner and petitioner did not appear despite it. In fact, respondent No.1 has not shown any mala fides on the part of petitioner in this process and it is to be noticed that, ultimately, it is petitioner who is put to loss in the matter. I therefore find that respondent No.3 Tribunal could not have proceeded further with adjudication of claim of respondent No.1 without issuing fresh notice to the petitioner. Objection of Advocate Bhandarkar by placing reliance upon paragraph 38(9) of judgment reported at 2003 (6) SCC 675 (supra) is therefore misconceived & a case is made out for interference because of breach of principles of natural justice.

12.I find that the Tribunal has taken the decision in the matter of quantification of amount without opportunity of hearing to present petitioner. Thus, this is a fit case for remand. Said issue is kept open for consideration by learned School Tribunal after hearing concerned parties. As the matter is very old, the School Tribunal is directed to dispose of the proceedings as early as possible & in any case within period of six months from the date of communication of this order to it.

13.Writ petition is thus allowed. Impugned order dated 16-3-1993 passed by Third respondent in Misc. application in Appeal No.10/84-A is hereby quashed and set aside. Said Misc. application is restored back to the file of Third respondent for its fresh decision in accordance with law within a period of six months as stipulated above. Rule is made absolute in above terms. No costs.