Delhi District Court
Sh. Munna Lal vs Servants Of The People Society (Delhi) on 11 March, 2014
IN THE COURT OF Ms. TANVI KHURANA, CIVIL JUDGE01 (South)
SAKET COURTS NEW DELHI
In the Matter of:
Civil Suit No.213/13
Case ID No.:02406C0037812012
1. Sh. Munna Lal, Sweeper
S/o Sh. Chhuttan Singh
R/o JJ Camp, Khanpur Tigri,
G Block, Jhuggi No. 32, New Delhi.
2. Sh. Bijender Kumar, Sweeper
S/o Sh. Khannu,
R/o L1, Quarter No. 20,
Sangam Vihar, New Delhi.
3. Sh. Raghu Raj, Sweeper
S/o Sh. Parmeshwar Mourya
R/o H. No. 645, Gali No. F2,
Sangam Vihar, New Delhi. .....Plaintiffs
Versus
1.Servants of the People Society (Delhi)
Balwant Rai Mehta Vidya Bhawan
Anguri Devi Sher Singh Memorial Academy
Senior School for Integrated Education,
Recognized and Affiliated to C.B.S.E.
Greater Kailash, New Delhi.
2. The Director cum Manager of
Balwant Rai Mehta Vidya Bhawan
Anguri Devi Sher Singh Memorial Academy
Senior School for Integrated Education,
Recognized and Affiliated to C.B.S.E.
Greater Kailash, New Delhi. .....Defendants
Date of institution :16.02.2012/24.08.2013
Date of reserving the judgment :28.02.2014
Date of pronouncement :11.03.2014
Decision :Dismissed
Suit No.213/13
Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 1 of 27
Suit for mandatory injunction and prohibitory injunction
Present: Proxy counsel for defendant.
JUDGMENT:
The plaintiffs have filed the present suit seeking a decree for mandatory injunction thereby directing the defendants to pay to the plaintiffs pay scale, DA, TA, medical facilities, washing allowance, dress and all other benefits under Section 10 of Delhi School Education Act including arrears payable on implementation of Sixth Pay Commission and all other benefits available to the plaintiffs including legally recoverable arrears and also to maintain service books and issue salary slips to the plaintiffs. The plaintiffs have also sought prohibitory injunction restraining the defendants from victimizing the plaintiffs in any manner owing to filing of the suit or making lawful demands.
Plaintiff's Version:
2. Succinctly, the facts as stated in the plaint are that the plaintiffs are low paid employees (sweepers/safai karamchari) of the defendant school, the Balwant Rai Mehta Vidya Bhawan, Anguri Devi Sher Singh Memorial Academy which are duly recognized. It is pleaded that by virtue of Section 10 of Delhi School Education Act, 1973, (herein after referred as the Act) the plaintiffs are entitled to same scale of pay as admissible to them under Section 10 of Delhi School Education Act. However, it is further pleaded Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 2 of 27 that the plaintiffs are not being paid the benefits despite requests.
3. It is further submitted that earlier the defendants had illegally terminated the services of the plaintiffs, but vide award of the Labour Court dated 03.04.2010, the plaintiffs were ordered to be reinstated. It is further submitted that the plaintiffs have been wrongly treated as adhoc employees and their services are purported to be extended from time to time. The plaintiffs have also served a notice dated 12.12.2011 which was duly replied. It is also submitted that the plaintiffs are the members of PF, ESI and group insurance.
4. It is also submitted that the plaintiffs are entitled to benefits under Section 10, Delhi School Eduction Act and complaint was also made to Chief Conciliation Officer/ Chief Labour Commissioner dated 02.01.2012. It is further submitted that due to the change of behaviour of the defendant and that they started threatening to victimize the plaintiffs, terminate their services and to implicate them on false charges, this suit was filed.
Defendant's Version:
5. On notice, the defendants filed written statement. In the written statement, defendants raised objections that the suit is not maintainable in the civil court as it is the Delhi School Education Tribunal which has the jurisdiction to entertain the matter. Misjoinder of the parties was also pleaded as the Manager cum Director of the school has Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 3 of 27 been unnecessarily made party in the present suit.
Approaching the court with unclean hands, no locus standi and absence of cause of action were also raised.
6. On merits, all the contentions raised in the plaint were denied. It was stated that the plaintiffs are getting minimum wages as applicable to Delhi. Plaintiff no. 1 and 2 were stated to be sweepers but plaintiff no. 3 was stated to be Mali (gardener). It was denied that the plaintiffs are lowest paid employees and it was stated that the plaintiffs are working on adhoc/ contract basis against temporary posts thus, they are not employees and therefore, Section 10, Delhi School Education Act, 1973 is not applicable in case of the plaintiffs. It was also submitted that as per C.P. F. C.'s Circular No.124 (1059)/67 dated 27.08.1968, the sweepers and chowkidar drawing paltry sums per month and not borne on regular staff sheet are to be excluded from employment strength and therefore, plaintiffs are not entitled to the benefits as alleged. Reliance has been placed upon Section 105 (1) of Delhi School Education Rules 1973 and stated that as the employees were appointed to fill a temporary vacancy or any vacancy for a limited period, therefore, the benefit of Delhi School Education Act can not be availed by the plaintiffs. It is stated that the defendant due to philanthropic reasons did not contest the petition filed at the Labour Court as they knew that the plaintiffs belonged to poor strata and were suffering hardships. It is submitted that their names have been duly entered in all Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 4 of 27 the school records. It is also stated that the plaintiffs are availing the leaves as per rules and the salary is accounted to Canara Bank, Triveni Phase II. It is also submitted that they have been issued school ID card. It is alleged that these workmen are being constantly misguided by trade union, which is also black mailing the school management. It was prayed that the suit be dismissed.
Replication:
7. The plaintiffs had filed replication denying the contentions raised in the written statement and stated that the suit is maintainable and stated that Servants of the People Society, Delhi has been correctly made a party along with the defendant school. All the contentions raised in the written statement were denied and claim was reiterated and maintained.
Identification of issues:
8. Admission and denial of the documents was not conducted and from the pleadings of the parties, following issues were framed vide order 29.11.2012 by the Ld. Predecessor:
1. Whether the civil court has no jurisdiction to try the present suit?OPD
2. Whether the suit is bad for misjoinder of parties? If so, its effect?OPD
3. Whether the plaintiffs are temporary employees of defendant no.1, Society? OPD
4. Whether the plaintiffs are entitled to pay scale and other benefits as per Section 10 of Delhi School Education Act, 1973? OPP
5. Whether the plaintiffs are entitled to relief of Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 5 of 27 mandatory injunction as prayed for in the plaint?
6. Whether the plaintiffs are entitled to relief of prohibitory injunction as prayed for in the plaint?
7. Relief.
Evidence:
9. The plaintiff no.1, Sh. Munna Lal stepped into the witness box as PW1 to establish his case. He vide his affidavit Ex. PW1/A, deposed that he had joined services under the defendants in the month January 2003 as "Safai Karamchari". He stated that the respondents had wrongfully terminated the services of the plaintiff on 06.02.2007 without notice, without charge sheet and without any rhyme or reason. He stated that the plaintiffs instituted proceedings before the Labour Court and vide award dated 03.04.2010, the plaintiffs were ordered to be reinstated. He further deposed that it is understood that the defendants preferred a writ petition against the said award but the same was not entertained. He also stated that the plaintiffs are wrongfully being treated as adhoc employees. He also deposed that the plaintiffs are not being paid salary, pay and medical benefits as required by Section 10, Delhi School Education Act including the arrears pay as per sixth pay commission report. He further deposed about issuance of notice and its service. He stated that he was illiterate and can sign in Hindi only. He stated that the contents of the affidavit were read over and explained to him in vernacular which are true and correct to his knowledge.
10. In his cross examination, he stated that his salary at that time was Rs. 6,656/ per month. He stated that he also Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 6 of 27 gets benefits and incentives from the management. He denied to the suggestion that he was on a temporary post and stated that he was on permanent post. He stated that there was no appointment letter for permanent post. He volunteered that nothing in writing was ever issued to them. He got employed in the year 2001 and became regular in the year 2003. He stated that he got employed with defendant no. 1 through an employee who is permanently employed there. He stated that they approached the labour court through trade union of Pramod Rajput. He stated that the name of the trade union is All India General Mazdoor Union. He denied to the suggestion that he did not join after the order of Labour court. He further denied to the suggestion that they refused to take the letter of joining from the management after the award of labour court. He stated that no joining letter was given to them. He denied to the suggestion that he was not entitled to any salary beyond the amount that he was receiving as on that date. He further denied that the management had never threatened them for removal from the employment. He stated that it was correct that after 2007, the management had not threatened them for removal. He denied that the suit was filed on the instigation of the President of the Trade Union. He denied that he was deposing falsely.
11. The documentary evidence produced by the plaintiff is as follows:
Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 7 of 27Ex. PW1/1 Certified copy of petition no. ID 83/07 filed at Labour Court.
Ex. PW1/2 Certified copy of written statement in ID No. 83/07 Ex. PW1/3 Certified copy of award dated 03.04.2010 Ex. PW1/4 Certified copy of petition No. ID 82/07 Ex. PW1/5 Certified copy of written statement in ID no. 1082/07 Ex. PW1/6 Certified copy of award dated 03.04.2010 Ex. PW1/7 Certified copy of petition no. ID 81/07 Ex. PW1/8 Certified copy of written statement in ID no. 1081/2007 Ex. PW1/9 Certified copy of award dated 03.04.2010 Ex. PW1/10 Copy of legal notice dated 12.12.2011 with postal receipts Ex. PW1/11 Reply dated 14.12.2011
12. Thereafter, Ld. counsel for the plaintiff closed plaintiff's evidence vide a separate statement dated 21.05.2013.
13. The defendants in order to support the contentions taken in their pleadings examined DW1, Sh. A. K. Tripathi, Principal and authorised representative of the defendants.
He deposed vide his affidavit, Ex. DW1/A that the plaintiffs are working on adhoc/ contract basis against the temporary posts thus, they are not employees and therefore Section 10 of Delhi School Education Act, 1973 is not applicable in the Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 8 of 27 case of the plaintiffs. He further deposed that the plaintiffs are getting a salary of Rs. 7,722/ per month as per Minimum Wages Act applicable to Delhi plus other benefits viz. time to time gifts, incentives etc. He deposed that the workmen are being constantly misguided by Trade union because of their illiteracy due to which they are always misbehaving towards the management and towards other staff. He stated that in February 2007, the plaintiffs refused to receive their appointment letter of contractual appointment and forced the management wilfully to issue them a letter of regular appointment. He further deposed the when management showed its inability to regularize their services, they with help of trade union filed a case against the management in the labour court and falsely charged the management with illegally terminating their services. He stated that the management did not contest the petition due to philanthropic reasons. He further stated that the Hon'ble Labour Court ordered their reinstatement on the same terms and conditions. He further stated that the defendants sent the compliance report to the Assistant Labour Commissioner. He further deposed that the names of the plaintiff have been duly entered in school records and they are availing leaves and their salary is accounted in Canara Bank,Triveni Phase II. He also said that they have been issued school ID cards. He stated that nothing is due to plaintiffs and the present suit is not maintainable as civil court has no jurisdiction under Delhi School Education Act.
Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 9 of 2714. In his cross examination, he stated that it was correct that defendant school is recognized under Delhi School Education Act. He stated that it was incorrect that the plaintiffs are regular employees of the school. He volunteered that they are adhoc contractual employees. He stated that according to him, plaintiff no. 1 joined the services in 2004 and other plaintiffs also joined around the same period. He stated that school maintains the record of temporary and permanent vacancies of the school. He did not know whether the said record was filed in this case or not. He stated that it was incorrect to say that vacancies filled by Munna Lal and Bijender Kumar were created since the inception of the school. He stated that the vacancies were created in the year 2004. He denied to the suggestion that vacancies were regular vacancies since the inception of the school. He stated that it was correct that plaintiffs had filed cases before Labour court against termination. He volunteered that they were not terminated. He stated that it was correct that before the labour court also the school had taken this stand that plaintiff are adhoc contractual employee. He stated that he did not know whether the stand of the school that the plaintiffs are working on temporary post was accepted or not. He denied to the suggestion that the plaintiffs were ordered to be reinstated by the labour court because they were regular employees. He stated that he was not aware whether even a temporary employee is entitled to the same pay scale as a regular Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 10 of 27 employee. It was correct that the school was not paying the salary/ pay as payable under Delhi School Education Act. He volunteered that salary was given as per Minimum Wages Act. He stated that it was correct that the plaintiffs were members of PF, ESI and GIS. He denied to the suggestion that they are getting these benefits due to being regular employees. He volunteered all the employees get these benefits. He stated that he can not tell the name of the Mazdoor Union. He volunteered that it was the same union which fought the case at KKD courts. He denied to the suggestion that the plaintiffs are entitled to the benefit under Section 10, Delhi School Education Act and that he was deposing falsely.
15. The documentary evidence adduced by the defendant is as below:
Mark A Closure Report
16. The defendant also examined Mr. Tika Ram, DW3 who vide his affidavit Ex. DW3/A deposed that he is a Safai Karamchari appointed on 25.09.2000 on purely adhoc basis. He worked on adhoc basis from 25.09.2000 to 30.06.2008 on consolidated salary which was raised every year. He stated that after that his service was regularized and he was put on the regular pay scale from 01.07.2008. He stated that he was on leave without pay for two month and twenty days for his medical treatment of Rheumatoid Arthritis from 01.09.2005 to 15.11.2005. He stated that he did not inform the management about his leave and when the management Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 11 of 27 asked the reasons for his absence he directly moved to the office of Labour Commissioner, Pushp Vihar, New Delhi. He stated that when realized his misconduct he tendered an apology and was allowed to join his duty on 31.12.2005. He stated that he had withdrawn his case from the Labour commission. He further stated that a brand new TV set which was received for raffle draw was given on concessional rate to him in installment. He further stated that he received "shagun" on his marriage from staff fund. He further stated that he joined Employees Credit and Thrift Society was given loan. He further stated that he availed ESI facilities as per rules. He further stated that during 23.11.2012 to 21.02.2013 he was on leave without pay for medical grounds. He had requested the management for financial assistance and an amount of Rs. 1.34 lacs approximately was released to him for injections. He further stated that besides salary the management is also given increments, bonus, incentives, gifts etc. from time to time whenever he becomes eligible. He stated that the environment of the school is very good and teachers and the staff are very cordial. He stated that he has no complaints against the management. He further deposed that the behaviour of Munna Lal, Raghu Raj and Bijender has not been good and respectful towards the management or the school. He stated that the behaviour has been very rude and they have always being misguided by the Trade Union against the management and school. He stated that Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 12 of 27 they always threatened the management and have misguided other class IV against the management. He stated that ordinarily they used to be no overtime work and if any over time was done by any employee, the management would pay appropriate wages immediately thereafter. He stated that his contents of his affidavit were true.
17. In his cross examination, he stated that plaintiff no. 1 is working in the school for the last ten years and the plaintiff no. 2 and 3 are working at the school for last 89 years. He stated that he is the permanent employee in the school. He did not know whether the plaintiffs are permanent employees. He stated that the plaintiffs have never misbehaved with the management in his presence. He did not know whether his income was equivalent to Safai Karamchari of Govt. School. He denied to the suggestion that since he was given an amount of Rs. 1.34 lac by the defendant, he was deposing in favour of the defendant. He did not know whether the plaintiffs are being paid their due salary or not. He denied to the suggestion put to him by the ld. counsel for the plaintiffs.
18. Thereafter, the AR for the defendant closed the defendant's evidence vide a separate statement dated 20.09.2013.
19. This is the entire oral as well as documentary evidence adduced by both the parties in the present case. Arguments:
Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 13 of 2720. Ld. Counsel for the plaintiff argued that the plaintiffs are entitled to the same pay as the safai karamchari in the Govt. Schools as per Section 10 of Delhi School Education Act. He stated that the plaintiffs are not temporary or adhoc employees. According to him, this issue was settled in the labour court award wherein the Ld. Judge had ruled that the plaintiffs were not adhoc employees. He stated that the post has still not ceased to exist and the defendants have no document show to the contrary. There is no document to show that the employees are temporary or adhoc employees. He placed reliance upon:
A. Mangal Mohan and Ors Vs. Director of Education and Anr., W. P. (C) No. 911929/2006, CONT. CAS (C) No. 1016/2006, CONT. CAS (C) No. 1210/2006 and CONT. CAS (C) No. 1019/2006 decided on 19.04.2011 by Hon'ble High Court of Delhi.
B. Servant of People Society and Ors. Vs. Smt. Sudesh Oberoi and Anr., 2007 VI AD (Delhi) 749.
C. Management Committee of Montfort Senior Secondary School Vs. Vijay Kumar and Ors., AIR 2005 SC 3549.
21. Per contra, Ld. Counsel for the defendant argued that the present court does not have the jurisdiction to try the present suit. She relied upon:
A. T M A Pai Foundation Vs. State of Karnataka, AIR 2003 SC 355.
B. Kathuria Public School Vs. Director of Education, 123 (2005) DLT 89 (DB).Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 14 of 27
C. Shashi Bala Vs. Managing Committee, Sardar Patel Senior Secondary School, 2000 LLR960.
22. She further argued that the school has been wrongly joined in the suit as it was the Society who had appointed the employees and not the school. She relied upon:
A. Shiksha Samiti and Anr. Vs. Bir Bahadur Singh Rathour and Ors., 2009 LLR 512 (SC).
23. It was also argued by her that the plaintiffs are temporary employees and were not entrusted persons within the meaning of employee. She further pointed to be cross examination of PW1 wherein he stated that the management has not threatened them for removal. She stated that plaintiffs have been misguided and have filed false suit. She also pointed out to the discrepancies in the testimony of PW1. She relied upon :
A. Prem Shankar Pandey Vs. NTPC (Citation not provided). B. K. Velukutty Achary Vs. Harrisons Malayalam Ltd., 1993, 66 FLR 423 (Ker) (DB).
24. She argued that the plaintiffs do not know their date of appointment and have been misled to file the present suit. She further argued that plaintiffs have miserably failed to show that they are permanent of regular employees of the plaintiff and no relief can be granted to them. She further relied upon :
A. Indian Oil Corporation Vs. General Secretary, Vadodara Kamdar Union, 2010 LLR 366 (Guj.)
25. In rebuttal, ld. counsel for the plaintiff argued that as Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 15 of 27 Delhi School Education Act 1973 is in force hence, any circular issued before 1973 can not be followed. He further argued that temporary employee is also entitled to get the same pay as a permanent employee.
26. I have heard the rival contentions raised by both the counsel and have also perused the case record meticulously with their kind assistance. My issue wise findings are as below:
Issue No. 1:
Whether the civil court has no jurisdiction to try the present suit? OPD
27. The onus to prove this issue was on the defendants. To discharge the onus, the defendants placed reliance upon T.M.A. Pai Foundation v. State of Karnataka, AIR 2003 SC
355. It was argued by the Ld. Counsel for the defendant that the Hon'ble Apex Court had decided that the disputes between the management and the staff of educational institutions must be decided speedily and without the excessive incurring of costs and that it would be appropriate that an educational tribunal be setup in each district in a state, to enable the aggrieved teacher of aided or unaided institution to file an appeal. The object was that the teacher should not suffer through the substantial costs that arise because of the location of the tribunal.
28. This court is in complete consonance with the above but this authority does not bar the jurisdiction of this court.
29. The Ld. Counsel for defendants then relied upon Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 16 of 27 Kathuria Public School v. Director of Education, 123 (2005) DLT 89 (DB). The Hon'ble Delhi High Court has held that the redressal of grievances of teachers in relation to dismissal, removal or reduction in rank can be addressed at the tribunal and the remedy available is at the tribunal only. It can be noted that the bar created by S. 25 of the Delhi School Education Act is in relation to dismissal, removal or reduction in rank. Whereas, the present case does not deal with any such grievance. This authority hence, is clearly not applicable.
30. Whereas; on the other hand, ld. Counsel for the plaintiff relied upon Servant of People Society and Ors. Vs. Smt. Sudesh Oberoi and Anr., 2007 VI AD (Delhi) 749. In this authority it was held that as the respondents have not sought redressal in respect of any grievance pertaining to their dismissal, removal or reduction in rank but for release of benefits under the 5th Pay Commission, the jurisdiction of civil court is not excluded. I quote:
7. Section 3 of the Act deals with the powers of the Administrator to regulate education in all the schools in Delhi. Section 10 stipulates, amongst others, that scales of pay and allowances, medical facilities, pension, retirement benefits and other prescribed benefits of the employees of a recognized private school shall not be less than those of the employees of corresponding status in schools run by the appropriate authority and in case it is found to be less, the appropriate authority shall be entitled to direct, in writing, the managing committee of such a school to bring the same upto the levels of those employees of Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 17 of 27 the corresponding status in schools run by the appropriate authority. Section 25 of the Act stipl that no Civil Court shall have jurisdiction in respect of any matter in relation to which the Administrator or the Director or any other person so authorised or specified under the Act, is empowered by or under the Act to exercise any power. Section 28 of the Act deals with the power of Administrator to make rules to carry out the provisions of the Act, with previous approval of the Central Government and subject to the condition of previous publication.
8. The plea of lack of jurisdiction in Civil Courts can be tested on the anvil of the provisions of Section 8 of the Act which specifies the terms and conditions of service of employees of recognized private schools and subsection (3) thereof provides that any employee of a recognized private school who is dismissed, removed or reduced in rank may, within three months from the date of communication of such order of dismissal to him, appeal against the same to the Tribunal constituted under Section 11 namely, the Delhi School Tribunal.9. In the present case, respondent No. 1 and 2
have not sought redressal in respect of any grievance pertaining to their dismissal, removal or reduction in rank. Their plea in the suit was for release of the benefits under the 5th Pay Commission to them by the appellants.
However, the statute does not provide any machinery for seeking the said relief. The jurisdiction of Civil Courts is excluded by Section 25 only in respect of any matter in relation to which the Administrator or the Director or such other person as mentioned therein is empowered to exercise any power. With regard to the matters where the aforesaid authorities are not empowered to exercise their Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 18 of 27 powers as in the present case, the Civil Court shall retain the jurisdiction to entertain a suit and grant interim orders therein. Section 9 of the Code of Civil Procedure (in short 'CPC') provides that the Civil Courts shall have jurisdiction to try all suit of the a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
(Para 7,8 & 9)
31. In light of the decision of Servants of People Society(Supra), it can be concluded that as the present dispute is not for dismissal, removal or reduction in rank but to avail the benefits as per Section 10 Delhi School Education Act, 1973 hence, the Civil Court has the jurisdiction to entertain the suit.
32. Consequently, this issue is decided against the defendant and in favour of the plaintiff.
Issue no. 2 Whether the suit is bad for misjoinder of parties? If so, its effect? OPD
33. The onus to prove this issue is upon the defendants. The defendants were to establish that the suit is bad for misjoinder of parties. It was taken as a preliminary objection that an employee of the society running the school cannot be employee of the school. It was submitted that the suit is bad for misjoinder of parties because plaintiffs are employees of the society and not the employees of the School. Defendant no. 2 is unnecessarily been made a party and suit deserves to be dismissed.
34. Reliance was placed on Shiksha Samiti and Anr. Vs. Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 19 of 27 Bir Bahadur Singh Rathour and Ors., 2009 LLR 512 (SC). It was held in this authority that an employee, though working in a school but appointed by the Samiti though in accordance with Rule 96 of the Delhi Education Rules and was also promoted will be treated as employee of the Samiti and not the school.
35. However, it is pertinent to observe that despite taking this objection, the appointment letter of the plaintiffs issued by the defendant no. 1 or defendant no. 2 has not been produced. It is also important to note that the plaintiffs have denied to the receipt of any appointment letter. Per contra, the defendants have maintained that the appointment letters were issued to the plaintiffs. Be that as it may, the appointment letter has not been produced depicting that the plaintiffs were appointed by the Society or by the School. Another, important fact is that DW1 himself admitted that the plaintiffs were employees of the school. Though he maintains that they were adhoc contractual employees. It is also admitted in the pleadings that their names have been entered in school records and ID cards have been issued by the school. This clearly shows that there is no clear cut segregation of the employees recruited by the defendant Society or the School. More so, the defendants have not substantiated their contentions with any documentary evidence to support the contention that the plaintiffs are the employees of the society.
36. I do not find any merit in the contention raised by the Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 20 of 27 defendant. The authority submitted is also of no avail. Hence, this issue is decided against the defendant and in favour of the plaintiff.
Issue No. 3:
Whether the plaintiffs are temporary employees of defendant no.1, Society? OPD
37. The onus to prove this issue was on the defendant. To establish that the plaintiffs are only temporary employees, the defendants have examined DW1, the principal of the Defendant School. He in his affidavit stated:
" the plaintiffs are working on adhoc/contract basis against the temporary posts thus they are not the employees and therefore Section 10 of Delhi School Education Act, 1973 is not applicable in the case of the plaintiffs."
38. In his cross examination, he maintained that:
"It is incorrect that the plaintiffs are regular employees of the school. Vol. they are adhoc contractual employee."
39. Though, the witness withstood the test of cross examination, but there is no documentary evidence to corroborate the testimony of the witness. The defendants have not produced any appointment letter of the plaintiffs showing that they are adhoc employees. There is no document on the record to establish that the plaintiffs were recruited against a temporary or adhoc basis. Merely by taking this as an objection in the pleadings and asserting the same by oral testimony does not sufficiently discharge the onus.
Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 21 of 2740. It has been deposed in the affidavit and also averred in the written statement that the defendants were issued reinstatement letter dated 25.05.2010, joining report, code of conduct, handing/taking over of duties and charter of duties. However, none of the documents have been placed on record to fortify the contention. It is a priori assumption that these documents were issued by the defendants and hence they should have copies or record of these documents, but for reasons best known to them, these documents were not produced.
41. Further, the testimony of DW3, Mr. Tika Ram, is not of much utility in buttressing the contention raised by the defendant, in absence of the pertinent documents that could reflect that the plaintiffs were contractual or adhoc employees.
42. Furthermore, I do not find any merit in the contention of the defendants that the plaintiffs are not 'employees'. They have themselves referred to the plaintiffs in their pleadings as employees and DW1 has also used the same words. The defendant can not be allowed to approbate and reprobate in the same breath.
43. As the defendants failed to establish that the plaintiffs are adhoc or contractual employees hence, this issue is decided against the defendants and in favour of the plaintiffs.
Issue no. 4 and 5:
Whether the plaintiffs are entitled to pay scale and other benefits as per Section 10 of Delhi School Education Act, Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 22 of 27 1973? OPP Whether the plaintiffs are entitled to relief of mandatory injunction as prayed for in the plaint?
44. The onus to prove these issues is upon the plaintiffs. As the findings of issue no. 5 are dependent upon the finding of issue no. 4 and also to avoid repetition, both these issues are decided together. It was upon the plaintiffs to establish that they are entitled pay scale and other benefits as per Section 10 of the Delhi School Education Act and also entitled to mandatory injunction directing the defendants to pay to the plaintiffs pay scale, D. A., T. A., Medical facilities, washing allowance, dress and all other benefits under Section 10 of the Delhi School Education Act, including arrears payable on implementation of VIth pay commission and all other benefits available to the plaintiffs including legally recoverable arrears and also maintain service books and issue salary slips to the plaintiffs.
45. In discharge of the onus, the plaintiff no. 1 himself stepped into the witness box to state that he and other plaintiffs are employees of the defendant school. This fact is not denied by the defendants, though they maintained that they are adhoc contractual employees. However, as discussed above, same has not been proved. This was the only defence of the defendants in this case. They also submitted that the sweepers, chowidars etc. can not be included in the employee strength. However, these are mere submissions which without proof are hollow and are not Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 23 of 27 tenable. In addition to this, the argument advanced by the Ld. Counsel for plaintiff stands correct that in light of the commencement of operation of the Delhi School Education Act, it is the provision of Act which are applicable. Therefore, as the plaintiffs are employees of a recognized private school and the defendants have failed to establish that they are adhoc employees, they are entitled to same pay and benefits as per Section 10 of the Act.
46. Now perusing S. 10, Delhi School Act,1973, it states:
10. Salaries of employees (1) The scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognised private school shall not be less than those of the employees of the corresponding status in school run by the appropriate authority:
Provided that where the scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of any recognised private school are less than those of the employees of the corresponding status in the schools run by the appropriate authority, the appropriate authority shall direct, in writing, the managing committee of such bring the same up to the level of those of the employees of the corresponding status in schools run by the appropriate authority: Provided further that the failure to comply with such direction deemed to be noncompliance with the conditions for continuing recognition of an existing school and the provisions of section 4 shall apply accordingly.
(2) The managing committee of every aided school shall deposit month, every month, its share towards pay and Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 24 of 27 allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits with the Administrator and the Administrator shall disburse, or cause to be disbursed, within the first week of every month, the salaries and allowances to the employees of the aided schools.
47. On bare perusal it can be observed that the Section 10 vests the powers in the 'appropriate authority' to direct the management of the school to disburse the pay and other benefits at par with the school under its management. The Act also answers the query that who is the appropriate authority. As Section 2 (e) provides:
e) "appropriate authority" means : i. in the case of a school recognised or to be recognised by an authority designated or sponsored by the Central Government, that authority;
ii. in the case of a school recognised or to be recognised by the Delhi Administration, the Administrator or any other officer authorised by him in this behalf; iii. in the case: of a school recognised or to be recognized Municipal Corporation of Delhi, that Corporation; iv. in the case of any other school, the Administrator or any other officer authorized by him in this behalf;
48. Therefore, it is within the purview of the 'appropriate authority' as defined above to direct the management to bring the pay, allowances and other benefits upto the level that is payable to the employees under their management. This is the intention of the legislature to empower the 'appropriate authority'. It is settled law that the intention of Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 25 of 27 the legislature should prevail.
49. Though, the plaintiffs have established that they are entitled to the pay and benefits as per Section 10, Delhi School Education Act, 1973 but the relief can not be granted by this forum as it is within the purview of the 'appropriate authority'. Hence, issue no. 4 is decided in favour of the plaintiffs but issue no. 5 is decided against the plaintiffs. Issue no. 6:
Whether the plaintiffs are entitled to relief of prohibitory injunction as prayed for in the plaint?
50. The onus to prove this issue is on plaintiffs. It was upon the plaintiffs to establish that they are entitled to prohibitory injunction restraining the defendants from victimizing the plaintiffs in any manner owing to filing of the suit or making lawful demands.
51. The plaintiff did not lead any evidence to show that they were victimized by the School, rather PW1stated in his cross examination that:
"It is correct to suggest that after 2007, the management has not threatened us for removal"
52. In addition to this there is nothing on the file to suggest that the plaintiffs have been victimized for filing the litigation. Hence, this issue is decided against the plaintiffs.
Relief
53. In light of the above discussion, this Court is of the considered opinion that the plaintiffs are entitled to the pay and other benefits as per Section 10, Delhi School Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 26 of 27 Education Act, 1973 however the relief sought can not be granted by this Court. Hence, the suit is dismissed. Parties to bear their own costs. Decree sheet be drawn accordingly. File be consigned to record room after due indexing, paging and completion.
Announced in the open court on 11th March 2014. (TANVI KHURANA) The judgment contains 27 pages, Civil Judge01 (South) all checked and signed by me. Saket Courts/New Delhi 11.03.2014 Suit No.213/13 Munna Lal & Ors Vs. Servants of the People Society (Delhi) & Anr. Page 27 of 27