Dismissed

Gadgebaba High School and Anr. v. Pandhari Tukaram Kamble and Anr.

Bombay HC2 Apr 2012SA/151/2001

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal filed by a school management, upholding the jurisdiction of the Civil Court to entertain a suit for declaration of service status and specific performance. The court held that since the respondent sought relief not covered by the School Tribunal under the Maharashtra Employees of Private Schools Regulations Act, the Civil Court retained jurisdiction.

What did the court decide?

The appeal was dismissed; the Civil Court was held to have jurisdiction to entertain the suit for declaration and injunction.

Gadgebaba High School and Anr. Vs Pandhari Tukaram… — Service and Employment | Bombay HC (2012)

¶1

¶2

Second Appeal No.151/2001

¶3

IN THE HIGH COURT OF JUDICATURE OF BOMBAY,

¶4

BENCH AT AURANGABAD

¶5

SECOND APPEAL NO.151 OF 2001

¶6

1.	Gadegbaba High School, Pangri, Tq. Nanded, through Head Master in the office of the said School.
2.	Dnyanvikas Shikshan Sanstha, Borgaon (Thadi), Post Alandi, Tq. Biloli, District Nanded, A public trust through Secretary, Gangadhar s/o Satwaji Sondhare, Age 36 years, Office at Borgaon (Thadi), Tq. Biloli, Via Shankarnagar. ... APPELLANTS (Orig.Deft.Nos.1 & 2)
	VERSUS
1.	Pandhari Tukaram Kamble, Age 35 years, Occ. Service, R/o Pangri, Taluka and District Nanded.
2.	Education Officer, Zilla Parishad, Nanded ... RESPONDENTS (No.1 Orig. Pltff. No.2 Orig.Deft.No.3)
Shri	..... S.G. Thombre, Advocate for the appellants
Shri	G.J. Karne, Advocate for respondent No.1.

¶7

¶8

Second Appeal No.151/2001

¶9

CORAM : U.D. SALVI, J.

¶10

DATED : 2nd April, 2012.

¶11

ORAL JUDGMENT:

¶12

This appeal brings into issue the following substantial question of law :

¶13

“Whether Civil Court had jurisdiction to entertain the suit of the plaintiff, the respondent No.1 herein, for declaration and injunction ?”

¶14

The respondent No.1 instituted Regular Civil Suit No. 626/1995 in the Court of the Civil Judge, Senior Division, Nanded for declaration that he continued to be in service of the defendants i.e. the appellants herein from 12/6/1989 till the completion of the training; and that the refusal of the appellants to allow him to join the service after the completion of the training is illegal, null and void; and for further mandate that the appellants be directed to allow him to join or resume the services as Assistant Teacher in the school. According to the respondent No.1, he joined the appellant No.1’s school run by appellant No.2 Dnyanvikas Shikshan Sanstha against a clear vacancy as Assistant Teacher; and in due course, was sent for training for the degree in Education on 1/1/1994, and when he reported back on completion of his training on 21/11/1994, the appellants did not allow him to join his duty. It is in these

¶15

¶16

Second Appeal No.151/2001

¶17

circumstances, the respondent No.1 was compelled to institute the aforesaid suit. The appellants resisted the suit with written statement (Exhibit 20) and raised the material question as to the jurisdiction of the Civil Court.

¶18

Learned advocate for the appellants submitted that the respondent No.1 had tendered his resignation on 17/12/1994 in writing without reporting back to the school on 21/11/1994, and the same came to be accepted in the management committee’s meeting on 22/12/1994. According to him, the appellant No.1 is a private school within the meaning of Section 2(20) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as the Act) and, therefore, it was open for the respondent No.1 to have preferred an appeal to the School Tribunal constituted under Section 8 of the said Act for redressal of his grievances and not rushed to the Civil Court, the jurisdiction of which is ousted by Section 9 of the said Act. In support of his submissions, he placed reliance on the following judgments :

¶19

(i) Satyawadi Ganpatrao Pimple & ors. Vs. Aruna Ganpatrao Narwade & anr. [ 2000(2) Mh.L.J. 322) ]

¶20

¶21

Second Appeal No.151/2001

¶22

(ii) St. Ulai High School & anr. Vs. Shri Devendraprasad Jagannath Singh & anr. [ 2007(2) ALL MR 1) ] (iii) Dadasaheb Kisan Jagdale Vs. Principal, NMV High School & anr. [ 2008(2) Mh.L.J. 235) ]

¶23

Learned Advocate for the respondent No.1 submitted that Section 9 of the said Act does not operate as bar to the jurisdiction of the Civil Court, there being no implied exclusion of the jurisdiction of the Civil Court by virtue of the said provision. According to him, the respondent No.1 had sought declaration regarding the status and not for challenging any of the orders enumerated in Section 9 of the said Act. Thus, according to him, the respondent No.1 had instituted lis to enforce his right under the common law and not under the said Act thereby leaving it to the discretion of the respondent No.1 to choose his remedy for relief. In support of his submissions, he placed reliance on the following judgments :

¶24

i) Dhulabhai etc. Vs. state of M.P. Etc. [ AIR 1969 SC 78(1) ] ii) The Premier Automobiles Ltd. Vs. Kamlakar Shantaram

¶25

Wadke & ors. [AIR 1975 SC 2238(1) ]

¶26

iii) Raja Ram Kumar Bhargava (dead) by L.Rs. Vs. Union of India [AIR 1988 SC 752].

¶27

¶28

Second Appeal No.151/2001

¶29

iv) Rasta Peth Education Society, Pune Vs. Pethkar Udhao Bhimashankar [ 1994(1) Mh.L.J. 725 ]

¶30

Admittedly, the appellants are running a private school within the meaning of the said Act and as such, Section 9 of the said Act is worth consideration for examining the issue involved. Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 reads as under :

¶31

“9. (1) Notwithstanding anything contained in any law or contract for the time being in force any employee in a private school --

¶32

(a) who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank by the order passed by the management; or

¶33

(b) who is superseded by the Management while making an appointment to any post by promotion,

¶34

and who is aggrieved, shall have a right of appeal and may appeal against any such order or supersession to the Tribunal constituted under section 8.

¶35

Provided that, no such appeal shall lie to the Tribunal in any case where the matter has already been decided by a Court of competent jurisdiction or is pending before such Court, on the appointed date or where the order of dismissal, removal otherwise termination of service or reduction in rank was passed by the Management at any time before the 1st July 1976.

¶36

(2) Such appeal shall be made by the employee to the Tribunal, within thirty days from the date of receipt by him of the order of dismissal, removal,

¶37

¶38

Second Appeal No.151/2001

¶39

otherwise termination of service or reduction in rank, as the case may be.

¶40

Provided that where such order was made before the appointed date, such appeal may be made within sixty days from the said date.

¶41

(3) Notwithstanding anything contained in subsection (2) the Tribunal may entertain an appeal made to it after the expiry of the said period of thirty or sixty days as the case may be, if it is satisfied that the appellant has sufficient cause for not preferring the appeal within that period.

¶42

(4) Every appeal shall be accompanied by a fee of five hundred rupees which shall not be refunded and shall be credited to the Consolidated Fund of the State.”

¶43

The Full Bench of this Court interpreted Section 9 in St. Ulai High School’s case vis-a-vis jurisdiction of the Civil Court. The Full Bench of this Court reiterated the primacy of the Civil Court in resolving the civil disputes in following terms :-

¶44

“The exclusion of the jurisdiction of the Civil Court is not readily inferred. Section 9 of the Code of Civil Procedure, 1908 provides that Courts shall have jurisdiction to bring all suits, except for suits of which the cognizance is either expressly or impliedly barred. Where there is no expres exclusion, the intent of the Legislature must be examined with reference to the rights created by the legislation, the remedies provided and the scheme of the Act. Where the statute gives finality to the orders of a special Tribunal, the jurisdiction of the Court is held to be excluded if there is an adequate remedy to do what the Civil Court would normally do in the suit.

¶45

¶46

Second Appeal No.151/2001

¶47

The Full Bench further held that the jurisdiction of the Tribunal under Section 9 of the said Act is to entertain appeals against certain specified actions of the management of a private school namely dismissal, removal, termination, otherwise reduction in rank and supersession by the management while making an appointment to a post by promotion; and as such, the jurisdiction of the Civil Court would be ousted where the action complained of by the employee falls under any of the categories stipulated in clauses (a) and (b) of Sub-section (1) of Section 9. According to the Full Bench, it is not necessary that the Legislature should have conferred jurisdiction of a Special Tribunal on all aspects in order to sustain an implied exclusion of the jurisdiction of the Civil Court. However, it held that, “To the extent to which the Legislature has spoken and has created a special forum for addressing specified grievances of employees, the jurisdiction of the Civil Court must, to that extent, be ousted.” This view found utterance in the judgment delivered by the Single Bench of this Court in Dadasaheb Kisan Jagdale’s case (supra).

¶48

In light of this rationality, it is necessary to look for the nature of the grievance made by the respondent No.1 in his suit. The respondent No.1 had sought declaration as to his status as Assistant Teacher in service of the appellant No.1 and unlawful

¶49

¶50

Second Appeal No.151/2001

¶51

refusal of the appellants to allow him to join the service on completion of his training. The relief thus sought was not one of those which he could seek from the Tribunal created under the said Act. Basically, the Civil Courts have jurisdiction to bring all suits except the suits, the cognizance is either expressly or impliedly barred. Going by the observations of the Full Bench, it can clearly be seen that the jurisdiction of the Civil Court is ousted only to the extent to which the Legislature has conferred jurisdiction on the Tribunals created under the said Act. Obviously, the Civil Court continued to have jurisdiction to entertain and try a dispute of the nature disclosed in the instant case. In Rasta Peth Education Society’s case, the Single Bench of this Court entertained the similar view. The first appellate Court, at para 23 of its judgment, dealt with this issue and rightly held that the Civil Court had jurisdiction to entertain the suit. The appeal is, therefore, dismissed.

¶52

( U.D. SALVI, J. )

¶53

fmp/sa151.01

Gadgebaba High School and Anr. v. Pandhari Tukaram Kamble and Anr.

Case brief

What is this about?

What did the court decide?

Gadgebaba High School and Anr. v. Pandhari Tukaram Kamble and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Amit Shankar Gupta and Anr. Vs Sudhakar Manikrao Talapurkar and Anr.

Jyoti Deorao Mhaske @ Jyoti Jaychand Kasliwal Vs the State of Mah and Ors.

Anil Sakharampant Narsikar Vs the State of Mah and Ors.

Gadgebaba High School and Anr. Vs Pandhari Tukaram Kamble and Anr.

Zilla Parishad Parbhani Thru Chief Executive Officer and Anr. Vs Parvez Kabiruddin Bandeali and Ors.

Ghanshyam Gangaram Tiwari Vs Laxman Rupchand Bhavsar