Jharkhand High Court
St. Xavier'S School vs Kunjal Kumar on 15 May, 2018
Author: D.N. Patel
Bench: Amitav K. Gupta, D.N. Patel
-1-
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.174 of 2016
With
I.A. No.7619 of 2016
St. Xavier's School, a private unaided Minority educational
institution registered under the Societies Registration and
having its school at P.O. Hinoo, P.S. Doranda, District : Ranchi
through its Principal, Father Ajit Xess, son of Louis Xess,
resident of St. Xavier's School Campus, P.O. & P.S. Doranda,
District : Ranchi ..... Appellant
Versus
Kunjal Kumar, son of late Rameshwar Prasad, Resident of
Anurani Niwas, Harihar Singh Road, Morabadi, P.S. Bariatu,
P.O. and District : Ranchi ..... Respondent
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Appellant : Mr. Nipun Bakshi, Advocate For the Respondent : Mr. A. K. Sahani, Advocate
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15/Dated: 15th May, 2018 Oral Order Per D.N. Patel, A.C.J
1. This Letters Patent Appeal has been preferred by the original petitioner, whose writ petition being W.P.(L) No.2204 of 2014 has been dismissed by the learned Single Judge vide judgment and order dated 21.01.2016, whereby the Labour Court was permitted to adjudicate the dispute of the termination of the Laboratory Assistant in St. Xavier School, Ranchi, instead of Jharkhand Education Tribunal, which is constituted under the Jharkhand Education Tribunal Act, 2005 (for the sake of brevity hereinafter referred to as 'the Act, 2005) in the teeth of Sections 8 & 19 thereof.
2. Having heard counsels for both the sides and looking to the facts and circumstances of the case, it appears that the Jharkhand Education Tribunal Act, -2- 2005, has been enacted for the following objects and reasons :-
"An Act to make suitable provisions for constitution of a statutory forum, to be known as Appellate Tribunal for looking into the grievances of teachers of aided, affiliated and Private Educational institutions and that of the parents/ guardians of the students studying therein and to comply with the order of the Hon'ble Supreme Court in the matter of TMA Pai V/s Karnataka State and the ruling dated the 5th August, 2003 passed by the Division Bench of the Honourable Jharkhand High Court in the matter of WP (PIL) No.2744 of 2003."
(emphasis supplied)
3. Thus, the Special Tribunal has been constituted under the Act, 2005, to decide the disputes between the employee and the management of the school. For ready reference, Sections 8 & 19 of the Act, 2005, read as under :-
"8. Jurisdiction, power and authority of the Jharkhand Education Tribunal - (1) Save as otherwise expressly provided in this Act, the Jharkhand Education Tribunal shall exercise on and from the appointed day, all the jurisdiction, power and authority exercisable immediately before that day by all Courts (Except the Jharkhand High Court and Supreme Court of India) regarding :
(a) Matters concerning recruitment to any post in connection with the affairs of the educational institution;
(b) All matters concerning the service conditions of employees of the educational institutions;
(c) Grievances of the employees against the management of the educational institutions;
(d) Grievances of the guardians and parents of students against the management of the educational institutions regarding teaching standards, fee structure infrastructural facilities development works and allied matters related thereto;
(e) Such matters relating to educational institutions as may be referred to the tribunal by the State Government notification from time to time.
9. Application to Tribunal. - (1) Subject to other provisions of this Act, a person aggrieved by an order pertaining to any matter within the jurisdiction of a Tribunal may make an application to the Tribunal for the redressal of his grievances.
Explanation. - For the purposes of this sub-section "Order" means an order made :-
(A) By the Management of an aided, affiliated and private educational institution;
(B) By an officer, committee or other body or -3- agency of such educational institutions referred to in Clause (A).
(2) Every application under sub-Section (1) shall be in such form and be accompanied by such documents or other evidence and by such fee, if any, in respect of the filing of such an application and by such other fees for the service or execution of processes as may be prescribed by the State Government.
(3) On receipt of an application under sub-Section (1) the Tribunal shall, if satisfied that the application is fit for adjudication or trial by it, admit such an application.
Where the Tribunal is not satisfied, it may summarily reject the application after recording its reasons. (4) Where an application has been admitted by the Tribunal under sub-Section (3), every proceeding under the relevant service rules as to redressal of grievances in relation to the subject matter of such application pending immediately before such admission shall abate and save as otherwise directed by the Tribunal, no appeal or representation in relation to such matter shall thereafter be entertained under such rules."
(emphasis supplied)
4. In view of the aforesaid Section 8, the grievances of the respondent, i.e., his services were terminated illegally vide order dated 30.08.2011, is covered by Section 8 (b) & (c) of the Act, 2005. The dismissal of the employee, is also some sort of dispute about condition of service. Thus, the Labour Court, Ranchi, has no power, jurisdiction and authority to decide the legality or otherwise of the termination of the respondent. Section 19 has a overriding effect. This aspect of the matter has not been properly appreciated by the learned Single Judge while deciding writ petition being W.P.(L) No.2204 of 2014, vide judgment and order dated 21.01.2016, and hence, the same deserves to be quashed and set aside.
5. In the facts of the present case, only the Jharkhand Education Tribunal has got power, jurisdiction and authority to decide the grievance/ grievances ventilated by the respondent of his termination, because it is about the condition of his services and the grievance about the -4- condition of services is covered by Section 8 of the Act, 2005, and hence, Labour Court, Ranchi, has no jurisdiction at all to decide the Reference Case No.8 of 2013. The said reference case stands terminated. Necessary endorsement shall be carried out by the Labour Court, Ranchi in their register or in the computer data, if at all they are maintaining.
6. It has been held by the Hon'ble Supreme Court in the case of State of Madhya Pradesh and Ors. Vs. Shardul Singh, reported in 1970 (1) SCC 108, in paragraph nos.8 & 9, which read as under :-
"8. One of the powers conferred under this proviso is to make rules regulating the conditions of service of persons appointed to civil services of the union or the State as the case may be. The expression "conditions of service" is an expression of wide import. As pointed by this Court in Pradyat Kumar Bose v. The Hon'ble Chief Justice of Calcutta High Court, the dismissal of an official is a matter which falls within "conditions of service" of public servants. The Judicial committee of the Privy Council in North West Frontier Province v. Suraj Narain Anand, took the view that a right of dismissal is a condition of service, within the meaning of the works under Section 243 of the Government of India, 1953. Lord Thankerton speaking for the Board observed therein.
"apart from consideration whether the context indicates a special significance to the expression "conditions of service" their Lordships are unable in the absence of any such special significance, to regard provisions which prescribe the circumstances under which the employer is to be entitled to terminate the service as otherwise than conditions of the service, whether these provisions are contractual or statutory, they are therefore of opinion that the natural meaning of the expression would include such provisions"
In P. Batakotaiah v. The Union of India and Others, this Court proceeded on the basis that a rule providing for the termination of the service of a railway official can be made in exercise of the powers conferred on the Government by Sections 241(2), 247 and 263(3) of the Government of India Act, 1935.
9. The expression 'conditions of service' means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it in matters like pension, etc."
(emphasis supplied) -5-
7. In view of the aforesaid facts, reasons and judicial pronouncement, this Letters Patent Appeal is, hereby, allowed.
8. Liberty is reserved with this respondent to approach the Tribunal in accordance with law. The said application will be decided independently, on its own merits and without, being influenced by an order of Labour Court, Ranchi. In case of any delay condonation is to be done by the Tribunal, necessary care will be taken, as time was consumed by the respondent, before the Labour Court, Ranchi. The delay condonation application shall be decided in accordance with law.
9. In view of the final order passed in this Letters Patent Appeal, I.A. No.7619 of 2016 is disposed of.
(D. N. Patel, A.C.J) (Amitav K. Gupta, J) Chandan - NKC/-