Bombay High Court
Tirupati Tantra Niketan Thr. Its ... vs Sunil Shriram Hatekar And Ors on 16 August, 2019
Author: A.S.Chandurkar
Bench: A.S.Chandurkar
1 WP1124.12(j)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1124 OF 2012
1] Shri Tirupati Tantra Niketan
through its Director,
Shri Sachin Keshav Joshi,
Age : 44 years, R/o. 27 Keshav Nagar,
Akola-444 004.
2] Shri Tirupati Tantra Niketan Keshav Nagar, Akola
through its Principal,
Shri Narendra Dattatray Deshpande,
Age : 42 years, R/o. 27 Keshav Nagar,
Akola-444 004.
.. PETITIONERS
VERSUS
1] Sunil Shriram Hatekar,
Aged about 46 years,
Occ. Business.
2] Anil Anant Dharulkar,
Aged about 46 years,
Both R/o. Chhoti Umari,
Behind School No.5,
Akola, Tq. and District Akola.
3] Presiding Officer,
School Tribunal, Amravati Division,
Amravati.
....... RESPONDENTS
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Shri R.L Khapre, Advocate for petitioners.
Shri S.T.Harkare, Advocate for respondent nos. 1 and 2.
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CORAM : A.S.CHANDURKAR, J.
DATED : 16.08.2019
JUDGMENT
The challenge raised in the present writ petition is to the order passed by the learned Presiding Officer of the School Tribunal, Amravati dated 25.01.2012 ::: Uploaded on - 23/08/2019 ::: Downloaded on - 17/04/2020 02:09:33 ::: 2 WP1124.12(j) thereby transferring the execution proceedings to the Civil Court in exercise of powers under Section 39(1) of the Code of Civil Procedure, 1908 ( for short, 'the Code').
2. The facts relevant for adjudicating the challenges as raised in the writ petition are that the respondent nos. 1 and 2 herein were engaged as lecturers in the subjects of Civil Engineering since August 1984. Their services came to be terminated by issuing notice on 28.02.1990. Being aggrieved by the said notice of termination, the respondent nos.1 and 2 filed separate appeals under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 ( for short, 'the said Act'). By its judgment dated 20.11.1992 the learned Presiding Officer of the School Tribunal allowed those appeals and after setting aside the order of termination directed the petitioners-Management to absorb the respondent nos. 1 and 2 on the post of lecturer in the subject of Applied Mechanics or in Engineering Drawing subject as per the recommendations of the Director of Technical Education. A direction to pay arrears of salary from the date of termination of the services till absorption also came to be issued. This order of the School Tribunal was challenged by the Management by filing Writ Petition No.316/1993. The said writ petition came to be dismissed on 16.03.2005 by maintaining the order passed by the School Tribunal. The Management thereafter informed the respondent no. 2 that the subjects in which the services of the respondent no.2 had been directed to be reinstated had been discontinued and hence it would not be possible to reinstate the said respondents in service. Both the employees filed Contempt Petition No.43/2006 before this Court. On 18.07.2008, ::: Uploaded on - 23/08/2019 ::: Downloaded on - 17/04/2020 02:09:33 ::: 3 WP1124.12(j) the contempt petition was not entertained on the ground that the employees had a remedy elsewhere. Thereafter the employees filed a review application in which liberty was granted to them to approach such Authorities where they could get justice. The employees thereafter filed Contempt Petition No.241/2010 before this Court again making a grievance with regard to non-compliance of the directions issued by the School Tribunal in the matter of reinstatement of their services. On 26.09.2011 the said proceedings were not prosecuted and hence the same came to be dropped.
The employees thereafter approached the School Tribunal in the matter of seeking compliance of the directions with regard to reinstatement of their services and payment of back-wages. In the said proceedings an application under Section 39 of the Code came to be filed by the employees in which they prayed that the said proceedings be transferred to the Civil Court for enabling them to execute the order passed by the School Tribunal. Reply was filed on behalf of the Management to the aforesaid application in which stand was taken that it would not be permissible to transfer the proceedings to the Civil Court under Section 39(1) of the Code. It was stated that since the relevant subjects in which the services of the employees had been directed to be reinstated had closed down, the said order of reinstatement could not now be executed as the same had become infructuous. It was also stated that the application was barred by limitation. The learned Presiding Officer of the School Tribunal passed order on 25.01.2012 and held that the School Tribunal had jurisdiction to direct transfer of the proceedings to enable execution of the order passed by the School Tribunal. Hence by that order the execution proceedings were transferred to the Civil Court. Being aggrieved by that order, the Management has ::: Uploaded on - 23/08/2019 ::: Downloaded on - 17/04/2020 02:09:33 ::: 4 WP1124.12(j) challenged the same in the present writ petition.
3. Shri R.L.Khapre, learned counsel for the petitioner-Management submitted that in view of the fact that the Civil Court had no jurisdiction to entertain the proceedings with regard to matters in which such jurisdiction was conferred on the School Tribunal under Section 9(1) of the said Act, it was not open for the School Tribunal to have transferred the proceedings for executing the order passed by it to the Civil Court. Referring to the provisions of Section 39(3) of the Code as well as the judgment of the Full Bench in St. Ulai High School and another Vs. Devendraprasad Jagannath Singh, 2007 (1) Mh.L.J. 597, it was submitted that since it has now been conclusively held that the jurisdiction of the Civil Court to entertain a suit with regard to the matters stated in Section 9(1) of the said Act, the jurisdiction of the Civil Court even to execute such orders passed by the School Tribunal in exercise of its jurisdiction under Section 9 of the said Act was also barred. According to him since the Civil Court had no jurisdiction to consider the prayer for grant of reinstatement of the employees and pay them back-wages which reliefs were within the exclusive jurisdiction of the School Tribunal, the proceedings for execution of that order passed by the School Tribunal could not have been transferred to the Civil Court. He also referred to the provisions of Section 42(1) of the Code to indicate that even the Court to which the proceedings were transferred for execution should be the Court which has jurisdiction to pass such orders that were sought to be executed. Since the requirements of Section 39(3) and Section 42(1) of the Code were not satisfied, the impugned order passed by the school Tribunal was liable to be set aside. In support of his submissions he relied upon the ::: Uploaded on - 23/08/2019 ::: Downloaded on - 17/04/2020 02:09:33 ::: 5 WP1124.12(j) following decisions :
(i) Mahadeo Prasad Singh and another Vs. Ram Lochan and others AIR 1981 SC 416
(ii) M.V.Al Quamar Vs. Tsavliris Salvage (International ) Ltd. & Ors.
AIR 2000 SC 2826
(iii) Ramchandra s/o Totaram Multani Vs. Chander Sharma, 1998(3) Bom.C.R.169
(iv) Brindraban Kanhaiyalal Agarwal Vs. Kasturilal Nyahalchand Sodi and others, 1978 Mh.L.J.561..
(v) Kammela Somasekhara Rao Vs. Kammela Seshagiri Rao. AIR 1960 AP 321. (vi) R.Palaniappa Mudaliar Vs. M.M.Mariappa Mudaliar, AIR 1960 Madras 343 (vii) Ram Prasad Misser Vs. Nand Lall Singh, AIR 1958 Patna 370. (viii) Rasta Peth Education Society Vs. Pethkar Udhao, 1994(4) BCR 410. (ix) Mohammad Salam Anamul Haque Vs. S.A.Azmi & others. 2001(supp.2) BCR 37. (x) Yusuf Ali Khan Rashid Ali Khan & anr. Vs. Nazema Begum Nisar Ahmed and anr. 2007(6)BCR 785
It was also submitted that as the subjects in which the services of the employees had been directed to be reinstated were discontinued by the Management, it was not possible for the Management to reinstate the employees in service. The fact that the judgment in that regard was not executable was brought to the notice of the learned Presiding Officer. However ignoring the aspect as to the executability of its order, the School Tribunal proceeded to transfer the said proceedings. It was his submission that an objection under Section 47 of the Code to the maintainability of the execution proceedings had also been filed before the ::: Uploaded on - 23/08/2019 ::: Downloaded on - 17/04/2020 02:09:33 ::: 6 WP1124.12(j) School Tribunal. However without deciding the said objection, the School Tribunal preferred to transfer the execution proceedings to the Civil Court and such course was also not justified. The School Tribunal ought to have considered the objection as raised to the maintainability of the execution proceedings. Even on this count the impugned order was liable to be set aside. He therefore submitted that the School Tribunal erred in passing the impugned order which was liable to be set aside.
4. Shri S.T.Harkare, learned counsel for the respondent nos. 1 and 2 on the other hand supported the impugned order. He submitted that though the appeals filed by the employees had been allowed on 20.11.1992, the Management on one pretext or the other had not complied with the same. Though the employees had filed the contempt petition in view of wilful disobedience by the Management, liberty was granted to them to avail such remedy as was available in law. Referring to the provisions of Sections 11 and 13 of the said Act, it was submitted that the School Tribunal and thereafter the Civil Court had ample powers to execute the orders passed by the School Tribunal. The order directing transfer of the proceedings to the Civil Court did not suffer from the aspect of lack of jurisdiction. Relying upon the decision in Yusuf Ali Khan Rashid Ali Khan and another, 2007 (4) Mh L.J. 141, it was submitted that it was a settled position that the order passed by the School Tribunal could be executed either by itself or the proceedings could be transferred to the Civil Court. He also referred to the decisions in Mohammad Salam Anamul Haque Vs. S.A.Azmi and others 2001(1) Mh.L.J.249 and Vilas Shankarrao Deshmukh and anr. Vs. S.A.Ghode, Principal, Navprabhat Vidya Mandir and Junior College, Thanegaon and others 2001 (1) Mh.L.J.261 in that regard. To further substantiate his submissions, ::: Uploaded on - 23/08/2019 ::: Downloaded on - 17/04/2020 02:09:33 ::: 7 WP1124.12(j) the learned counsel referred to the decisions in M/s. Gojer Brothers (P) Ltd. Vs. Shri Ratan Lal Singh AIR 1974 SC 1380, State of Punjab and others Vs. Mohinder Singh Randhawa and another, AIR 1992 SC 473, Jai Narain Ram Lundia Vs. Kedar Nath Khetan & others, AIR 1956 SC 359 and Ellora Chemicals and another Vs. Panchavati Co-operative Housing Society Limited, 2012 (1) Mh.L.J.947. It was thus submitted that there was no error committed by the learned Presiding Officer while directing transfer of the proceedings to the Civil Court for execution.
5. I have heard the learned counsel for the parties at length and I have given due consideration to their respective submissions. The principal ground of challenge as sought to be urged on behalf of the petitioners is that as the Civil Court had no jurisdiction to grant any reliefs as contemplated by Section 9 of the said Act, the Court Court to which such order is sent for execution would have no jurisdiction to entertain the proceedings for execution in the light of the provisions of Section 39(3) of the Code. In other words, since the Civil Court had no jurisdiction to entertain proceedings for seeking reliefs that are contemplated by the provisions of Section 9 (1) of the said Act, the Civil Court would not be in a position after transfer of the proceedings to it to execute such order. The said submission cannot be accepted in the light of the law as laid down by the Full Bench of this Court in St.Ulai High School (supra). The Full Bench has held that with regard to those matters for which an appeal lies to the School Tribunal under the provisions of Section 9(1)(a)(b) of the said Act, the jurisdiction of the Civil Court to entertain such matter is impliedly barred. However at the same time the Full Bench also considered the aspect with regard to enforcement of orders passed by the School Tribunal. It ::: Uploaded on - 23/08/2019 ::: Downloaded on - 17/04/2020 02:09:33 ::: 8 WP1124.12(j) has referred to the decision in Mohammad Salam (supra) wherein a learned Single Judge has held that an order passed by the School Tribunal is capable of being executed as a decree of the Civil Court. While considering that aspect further, it was observed by the Full Bench in para 12.1 as under :-
"12.1 : The learned Single Judge, therefore, held that an Appellate Court is conferred with the same powers and duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein. The Tribunal, the learned Single Judge held, is a Court and an order passed by the Tribunal would satisfy the description of that expression in Section 2(14) of the CPC. The learned Single Judge held as follows:
Therefore, when the School Tribunal makes an order for reinstatement and for payment of back wages, the Appellant in whose favour such an order is made can definitely approach the School Tribunal, which made the order for execution of that order in the same manner in which the decree under the provisions of the Civil Procedure Code is to be executed. In such situation either the tribunal may itself execute the decree or it may transfer the decree for execution to another Court in accordance with the provisions contained in the Civil Procedure Code. It is thus clear to my mind that an order made by the School Tribunal is an order which is executable under the provisions of the Civil Procedure Code.
We affirm the correctness of these observations".
From the aforesaid observations it is clear that the Full Bench has affirmed the correctness of the observations that the School Tribunal may itself execute an order passed by it or it could transfer the proceedings for execution to another Court in accordance with the provisions of the Code. It has been further observed that when the School Tribunal makes an order for reinstatement and for payment of back-wages, the order can be executed in the same manner in which a decree under the provisions of the Code can be executed. In the light of these ::: Uploaded on - 23/08/2019 ::: Downloaded on - 17/04/2020 02:09:33 ::: 9 WP1124.12(j) observations of the Full Bench, it cannot be disputed that though it has been held that the Civil Court has no jurisdiction to grant the reliefs that can be claimed before the School Tribunal under Section 9(1) of the said Act, the order passed by the School Tribunal under those provisions is an order passed by a Court and such order can be executed in the same manner in which a decree under the provisions of the Code can be executed.
6. The learned counsel for the petitioners submitted that the contention now being urged by the petitioners as regards the absence of jurisdiction of the Civil Court to grant reliefs that can be granted only by the School Tribunal under Section 9(1) of the said Act and hence the proceedings for execution of the order passed by the School Tribunal cannot be transferred to the Civil Court have not been dealt with by the Full Bench. Said contention however cannot be accepted in the light of the law laid down by the Full Bench which is binding on this Court. Thus by following the law laid down in St.Ulai High School (supra) it is held that the Civil Court has jurisdiction to execute the orders passed by the School Tribunal. After such proceedings are transferred to it by the School Tribunal, the Civil Court would have the jurisdiction to proceed further for executing such order. The learned Presiding Officer of the School Tribunal has relied upon the aforesaid judgment of the Full Bench while passing the impugned order. Moreover, reference to the provisions of Section 42 of the Code clearly indicate the nature of powers of the Court to which a decree has been sent for execution. The finding as regards presence of jurisdiction as recorded by the learned Presiding Officer therefore does not call for any interference. ::: Uploaded on - 23/08/2019 ::: Downloaded on - 17/04/2020 02:09:33 :::
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7. Insofar as the aspect of bar of limitation as sought to be urged by the petitioners in filing the execution proceedings is concerned, the judgment of the School Tribunal is dated 20.11.1992. Writ Petition No.313/1993 in which that judgment was challenged was decided on 16.03.2005 during which period the execution of that order was stayed. Contempt Petition No.43/2006 was finally disposed on 24.09.2008 granting liberty to take such steps and approach such Authority as warranted. It is thereafter in 2010 that the order of the School Tribunal was sought to be executed. In these facts therefore it cannot be said that the proceedings were barred by time.
8. Other limb of argument on behalf of the petitioners is the aspect of abolition of the posts with regard to which the services of the respondent nos. 1 and 2 were directed to be absorbed. According to the petitioners, the relevant subjects that were being conducted by the petitioners have since been discontinued and hence the order of reinstatement on the same post was not permissible. In this regard, it is to noted that the petitioners have raised an objection under Section 47 of the Code to that effect which can be gathered from the averments in paragraphs 6 to 8 of said objection. It is however seen that the objection as raised under Section 47 of the Code is still pending and is not yet decided. It is therefore found that as the objection raised by the petitioners under Section 47 of the Code in that regard is still pending for adjudication before the Executing Court, it is not necessary for this Court to go into that aspect in the present proceedings. The petitioners would be free to pursue those objections as raised under Section 47 of the Code before the Executing Court.
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9. In that view of the matter, I do not find any jurisdictional error committed by the learned Presiding Officer while directing transfer of the execution proceedings before it to the Court of learned Civil Judge, Senior Division, Akola. The order dated 25.01.2012 is therefore confirmed. It is directed that the Executing Court shall proceed to consider the objections filed by the petitioners under Section 47 of the Code in accordance with law. However by virtue of the present adjudication, the Executing Court shall not go into the aspect of transferability of the execution proceedings which aspect stands adjudicated by holding that the School Tribunal had jurisdiction to transfer the proceedings for executing the order passed by it to the Civil Court. The petitioners are free to pursue the objections as raised in paragraphs 6 to 11 of the said objections filed under Section 47 of the Code. The writ petition thus stands dismissed. Rule stands discharged with no orders as to costs. Pending civil application is also disposed of.
10. At this stage learned counsel for the petitioners seeks continuation of the interim order that was passed by this Court while issuing the notice. This prayer is opposed by the learned counsel for the respondent nos. 1 and 2.
Considering the fact that the interim order has been operating from 15.03.2012, it shall continue to operate for period of six weeks from today and it shall cease to operate automatically thereafter.
JUDGE Andurkar.
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