Karnataka High Court
Karnataka Lingayat Education Society vs Dr. V.I.Hukkeri (Dr.Vijaykumar S/O ... on 11 February, 2025
-1- R.F.A.NO.1159/2006
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 11TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR FIRST APPEAL NO.1159 OF 2006
BETWEEN
1 . M/S KLE SOCIETY,
COLLEGE ROAD,
BELGAUM-591010
REP. BY ITS CHAIRMAN
2 . KLE SOCIETY'S
JAWAHARLAL NEHRU MEDICAL COLLEGE,
BELGAUM 590 010,
BY ITS PRINCIPAL.
...APPELLANTS
(BY SRI. C.K. SUBRAMANYA, ADV., FOR
SRI. MALLIKARJUNASWAMY B. HIREMATH, ADVOCATE)
AND
DR. (MS.) K.S. SHANTHA,
AGED ABOUT 66 YEARS,
FIRST FLOOR, HERWADKAR BUILDING,
GONAHALLI GALLI, BELGAUM-591002,
...RESPONDENT
VN (BY SRI. M.V. LATTI, ADVOCATE FOR
BADIGER SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)
Digitally signed
by V N BADIGER
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
Location: High
Court of
Karnataka, CODE OF CIVIL PROCEDURE, 1908, SET ASIDE THE JUDGMENT AND
Dharwad Bench
Date:
2025.02.12
15:46:57 +0530 DECREE DATED 31.01.2006 PASSED BY THE PRINCIPAL CIVIL JUDGE
(SENIOR DIVISION), BELGAUM IN O.S.NO.360/2002 & ETC.,
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
06.02.2025 COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS
DAY, COURT DELIVERED THE FOLLOWING:
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CORAM: THE HON'BLE MR. JUSTICE E.S. INDIRESH
CAV JUDGMENT
This appeal is preferred by the defendants under Section 96 of CPC, challenging the judgment and decree dated 31.01.2006 in OS No.360/2002 on the file of Principal Civil Judge Senior Division, Belgaum, decreeing the suit of the plaintiff in part.
2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court.
3. Facts of the case in nutshell are that, it is the case of the plaintiff before the Trial Court that the plaintiff is an employee of the defendants-educational institution, having been appointed as a Lecturer in Bacteriology of Pathology Department of defendant No.2-college run by the defendant No.1-Society. It is the case of the plaintiff that, the plaintiff has joined her duties on 01.07.1966 with the pay-scale of Rs.350-25-500-30-800+NPA of Rs.75/- per month and dearness allowance of Rs.81/- on par with the Government Servant. During the course of her service, the plaintiff was promoted as Asst. Professor of Microbiology of defendant No.2- College. The plaintiff attained the age of superannuation on 31.01.2000. It is further stated in the plaint that during the -3- R.F.A.NO.1159/2006 course of the service of the plaintiff with the defendant No.2- College, the salary was paid as per the Government Servant and also the plaintiff was permitted to entitle for 15 days casual leave and one month earned leave every year, so also medical leave etc., which is permissible to the State Government employees also. It is also stated in the plaint that the State Government has periodically enhanced the dearness allowance to its employees, however, same was denied to the plaintiff by the defendant-Institution. It is also contended in the plaint that the plaintiff had earned leave to her credit and same was surrendered at the time of attaining superannuation however, the said benefit of earned leave encashment was denied to the plaintiff by the defendant-Institution. It is also stated in the plaint that the plaintiff has been denied benefit of HRA and CCA on par with the State Government Employees. The plaintiff made a claim for arrears of aforementioned benefits and same was rejected by the defendant-Institution at the time of retirement of the plaintiff. Hence, the plaintiff has preferred O.S.No.360/2002 against the defendant-Institution, seeking relief of recovery of money as the plaintiff is entitled for difference of Dearness Allowance, House Rent Allowance, Earned Leave and City Compensatory Allowance on par with the Government employees.
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4. After service of summons, the defendant-Institution entered appearance and filed detailed written statement admitting that the plaintiff was working in the defendant No.2- College, however, denied the averments made by the plaintiff that the plaintiff was getting salary on par with Government pay-scales, which have been given to the Government employees, who are holding civil posts. It is the specific case of the defendants that the plaintiff is not entitled for difference of Dearness Allowance, House Rent Allowance, Earned Leave and City Compensatory Allowance on par with the Government employees. It is also stated in the written statement that the plaintiff was working in a private unaided institution under the management of defendant No.1-Society. The defendant No.1- Society has its own rules and regulations regarding service conditions of its employees and therefore, the same cannot be treated on par with the employees of the State Government and accordingly, it is stated in the written statement that the plaintiff is bound by the service conditions of the defendant No1-Society. It is also contended by the defendants that the suit is not maintainable and that apart, suit is barred by law of limitation. Hence, the defendants sought for dismissal of the suit.
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5. The Trial Court, based on pleadings on record, has formulated following issues which is extracted below:
1. Whether the plaintiff proves that she was getting her salary and other benefits like surrender leave benefit and dearness allowance etc., on par with the Government pay scales and orders from time to time as alleged?
2. Whether the plaintiff proves that the defendants were due to her Rs.20,000/-, Rs.15,000/- and Rs.78,486/- towards D.A.difference, D.A. arrears and surrender leave benefit as alleged?
3. Whether the defendants prove that the defendant Society has its won rules and regulations regarding pay scales and dearness allowances and hence, the pay scale and D.A. declared by the Government are not binding on the defendant society as alleged?
4. Whether the defendants prove that the plaintiff has consented for the scales given by the defendants society as alleged?
5. Whether the defendants prove that the suit is barred by limitation?
6. Whether the plaintiff is entitled to recover a suit claim of Rs.1,13,486/- from the -6- R.F.A.NO.1159/2006 defendants together with cost and future interest at 18% p.a.?
6. In order to establish their case, plaintiff was examined as PW1 and produced 03 documents, which were marked as Ex.P1 to P3. On the other hand, defendants have examined one witness as DW1 and produced 01 document, which was marked as Ex.D1.
7. The Trial Court after considering the material on record by its judgment and decree dated 31.01.2006 decreed the suit in part holding that the plaintiff is entitled for sum of Rs.1,13,486/-, from the defendants with interest at 9% per annum from the date of the suit till its realization. Feeling aggrieved by the same, the defendants have preferred this Regular First Appeal under Section 96 of CPC.
8. I have heard Sri. Subramanya, the learned counsel appearing on behalf of Mallikarjunaswamy B Hiremath for the appellants and Sri. M. V. Latti, learned counsel on behalf of Sri. Mrityunjaya Tata Bangi, the learned counsel appearing for the respondent.
9. Sri. Subramanya, learned Counsel appearing for the appellant contended that the Trial Court has committed an -7- R.F.A.NO.1159/2006 error in decreeing the suit of the plaintiff without considering the fact that the defendant No.2-Institution is an unaided education institution covered under the provisions of Karnataka Education Act, 1983 (hereinafter referred to as "the Act"). He further emphasized that as the plaintiff is an employee of the education institution and as such, the plaintiff has to approach the competent authority under section 131, 132 and 134 of the Act. Referring to Rule 5 of the Karnataka Private Education (Discipline and Control) Rules 1978 (hereinafter referred to as "Rules"), it is contended by the learned counsel for the appellants that the pay-scale of the employee of a private educational institution shall be corresponding to the post in the Government Education Institution, however certain benefits like DA, CCA, HRA and other allowances cannot be equated with that of the government employees. It is also argued by the learned counsel appearing for the appellants that the employees of the appellant-institution were appointed as per the rules and regulations of the appellant-society and therefore they cannot be equated with the government servants, who were governed under Karnataka Civil Service Rules (for short "KCSR"). He also refers to the appointment orders issued by the appellant-institution in favour of the respondent-plaintiff wherein it is clearly stated that the service rules and -8- R.F.A.NO.1159/2006 regulations of the appellant-institution is applicable to the service condition of the employees and therefore, sought for interference of this Court.
10. Nextly, it is contended by Sri. Subramanya, learned counsel that, the Trial Court has committed an error in shifting the burden on the defendants-appellants herein to prove the entitlement of the respondent-plaintiff, which is quite strange and contrary to law. Hence, the learned counsel appearing for the appellants sought for interference of this Court.
11. In order to buttress his arguments, he refers to the judgment of this Court in W.P.No.201481/2021 disposed of on 10.02.2022, confirmed by the Division Bench of this Court in W.A.No.200040/2022 disposed of on 01.07.2022 and argued that, the relief sought for by the plaintiff in the suit cannot be accepted in this appeal. He also refers to the judgment of the Hon'ble Supreme Court in the case of The Premier Automobiles Ltd., v. Kamlekar Shantaram Wadke1 and contended that the suit itself is not maintainable before the Civil Court and accordingly sought for setting aside the impugned judgment and decree passed by the Court below. He also refers to the judgment of the Hon'ble Supreme Court in 1 AIR 1975 SC 2238 -9- R.F.A.NO.1159/2006 the case of Sushil Kumar Mehta v. Gobind Ram Bohra (Dead) through his LRs2 and argued that the judgment rendered by a Court having no jurisdiction is nullity in law. He also refers to the judgment of the Hon'ble Supreme Court in the case of Dr.Jagmittar Sain Bhagat and others v. Dir. Health Services, Haryana and others3 and in the case of State of Punjab v. Labour Court Jullunder and others4 and argued that, if a Special Act is enacted for determining the rights of the parties and aggrieved person under such circumstances, shall be relegated to avail the remedy provided under a statutory enactment and therefore, suit is not maintainable before the Civil Court and accordingly, sought for interference of this Court.
12. Per contra, Sri. M.V. Latti, learned counsel on behalf of Sri.Mrityunjay Tata Bangi learned counsel appearing for the respondent sought to justify the impugned judgment and decree passed by the Court below.
13. It is the categorical statement of the learned counsel for the respondent that, the appellant-institution has satisfied the judgment and decree in some of the cases, in 2 (1990) 1 SCC 193 3 AIR 2013 SC 3060 4 AIR 1979 SC 1991 - 10 - R.F.A.NO.1159/2006 execution petitions and some of them were closed as fully satisfied, however, challenging the judgment and decree passed by the Court below in some of the cases indifferently and therefore, he argued that the appeal itself is not maintainable before this Court. It is also the submission made by the learned counsel that the suit is maintainable as the plaintiff is entitled for difference of the benefits on par with the government servants and as such, the learned counsel appearing for the respondent argued that the suit for recovery of money is maintainable before the Civil Court and the plaintiff/respondent cannot be relegated to the statutory authorities for remedy provided thereunder. It is the principal submission of the learned counsel for the respondent that the appellants were discriminating the employees and therefore, submitted that the appeal requires to be dismissed.
14. In order to buttress his arguments learned counsel appearing for the respondent places reliance on the judgment of this Court in the case of S.S.Anand and others v. The Management of Mahatma Gandhi Vidya Peeta (Regd.), Bangalore and another5 and in the case of Karnataka State Board Transport Corporation, Bangalore v. 5 1998 (3) K.L.J. 293 - 11 - R.F.A.NO.1159/2006 Karnataka State Transport Authority, Bangalore and others6 and argued that there is no interference called for in this appeal as the Trial Court after appreciating the material on record in the right perspective passed the judgment and decree impugned in this appeal and the same requires to be affirmed.
15. In the light of the submission made by the learned counsel for the parties, the points for consideration are as follows:
i) Whether the suit filed by the plaintiff is maintainable before the Civil Court?
ii) Whether the plaintiff is entitled for difference of benefits on par with the government employees?
iii) Whether the judgment and decree passed by the Court below requires interference?
16. In the light of the submissions made by the learned counsel appearing for the parties, it is the case of the plaintiff that they were working in the appellant-institution and as such claims salary and other benefits on par with the government servants. It is not in dispute that the plaintiff has been appointed by the defendant No.1-Society in terms of the bye- 6 2000 (3) Kar.L.J., 501 - 12 - R.F.A.NO.1159/2006 law and the regulation of the defendant No.1-Society. It is also not in dispute that the 2nd defendant-institution is an unaided institution. In this regard, learned counsel appearing for the appellant herein argued that the suit itself is not maintainable before the Civil Court. Undoubtedly, the plaintiff is not a government servant and therefore, in the event if the plaintiff claim benefits on par with government servant and if the plaintiff is appointed and governed by KCSR, then neither the suit nor the provisions under the Karnataka Education Act is applicable to the case of the plaintiff and the plaintiff has to approach the Karnataka Administrative Tribunal constituted under Article 323-A of the Constitution of India for redressal of her grievance. Whether the claim made by the plaintiff in a civil nature under Section 9 of CPC is to be ascertained in the light of the arguments advanced by the learned counsel for the parties. It is well established principle in law that a decree passed by a Court without jurisdiction is nullity in law. At this stage, it is relevant to extract the observation made by the Hon'ble Supreme Court in the case of Sushil Kumar Mehta (supra), paragraph 5 to 12 held as follows:
"5. The other provisions are not necessary. The sole ground raised by the landlord for eviction was that the appellant had committed default in the payment - 13 - R.F.A.NO.1159/2006 of rent and thereby had became liable for ejectment. Accordingly, he issued a notice under Section 106 of the Transfer of Property Act determining the tenancy and laid this suit. Section 13 gives the right to the landlord to seek eviction of the tenant for default in the payment of rent. The Act provides the protection of continued tenancy and remedy of ejectment for breach of covenants in the lease and other statutory grounds as provided. It provides that the remedy and the forum and the decree of ejectment passed by the Controller or the appellate authority or the revisional authority or confirmation thereof either in appeal or revision is final under the Act. Thereby the exclusive jurisdiction to take cognizance of the cause of action for ejectment of the tenant from a building or rented land situated in urban areas is governed by the provisions of the Act and is exclusively to be dealt with under Section 13 of the Act. By necessary implication the jurisdiction of the Civil Court under Section 9 of C.P.C. is excluded. It is undoubtedly true that open land is a part of the frontage of the shop and belonged to the municipality which the landlord had taken on lease from the Municipality. As regards the municipal land, the landlord was a lessee of the Municipal Committee. But on construction of the building covering a portion of the municipal land the landlord became landlord and the appellant his tenant for the purposes of the Act. This view was held by the full Bench of the Punjab and Haryana High Court in Hari Parshad Gupta v. Jitender Kumar Kaushik, [1982] Vol. 84, Punjab Law Reporter, 150. We agree with the view. Thereby though there is a notification issued by the - 14 - R.F.A.NO.1159/2006 State Government exempting the lands belonging to Gurgaon Municipality from the provisions of the Act, the building of the respondent does not get exempted from the provisions of the Act. It is the finding of the forums below that the shop in question stands mainly on the land of the landlord and a small portion is located on municipal land. Therefore, we are of the view that the building was governed by the provisions of the Act and the exemption accorded by the Government under Section 3 was not attracted to the premises. In Sadhu Singh v. District Board, Gurdaspur & Anr., [1962] Punjab Law Reporter, Vol. 64, 1 the question was whether to the reconstructed building governed by the provisions of East Punjab Urban Rent Restriction Act the exemption under Section 3 applied. It was held to be so by the Division Bench. But the present facts are different.
6. In Barrachlough v. Brown, [1897] A.C. 615 the House of Lords held that when a special statute gave a right and also provided a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act and the common law court has no jurisdiction.
7. In Doe v. Bridges, [1831] 1 B & Ad. 847 the famous and oft quoted words of Lord Tenterdan, occur:
"Where an Act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner."- 15 - R.F.A.NO.1159/2006
8. This statement of law was approved not only by the House of Lords in several cases, but also by this Court in Premier Automobiles v. K.S. Wadke, [1976] 1 SCR 427 where this Court was called upon to consider whether the Civil Court can decide a dispute squarely coming within the provisions of the Industrial Disputes Act. While considering that question, this Court laid down four propositions and third of them is relevant for consideration here. It is as follows:
"(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act."
9. Thus on construction of relevant provisions of the Act and in the light of the position in law it must be held that the provisions of Section 13 of the Act applies to the building leased out to the appellant by the landlord and the Controller was the competent authority to pass a decree of ejectment against the appellant and the Civil Court lacked inherent jurisdiction to take cognizance of the cause and to pass a decree of ejectment therein. The next question is whether the impugned decree is a nullity and whether the plea can be raised in execution and further whether the decree in the suit does not operate as res judicata.
10. In Kiran Singh & Ors. v. Chaman Paswan & Ors., AIR 1954 SC 430 the facts were that the appellant had undervalued the suit at Rs.2,950 and laid it in the court of the Subordinate Judge, Monghyr for - 16 - R.F.A.NO.1159/2006 recovery of possession of the suit lands and mesne profits. The suit was dismissed and on appeal it was confirmed. In the second appeal in the High Court the Registry raised the objection as to valuation under Section 11. The value of the appeal was fixed at Rs.9,980. A contention then was raised by the plaintiff in the High Court that on account of the valuation fixed by the High Court the appeal against the decree of the court of the Subordinate Judge did not lie to the District Court, but to the High Court and on that account the decree of the District Court was a nullity. Alternatively, it was contended that it caused prejudice to the appellant. In considering that contention at page 121, a four Judge Bench of this Court speaking through Vankatarama Ayyar, J. held that:
"It is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the every authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was - 17 - R.F.A.NO.1159/2006 coram non judice, and that its judgment and decree would be nullities."
11. On merits it was held that since the appellant himself had invoked the jurisdiction of the Civil Court with under valuation, the objection as to jurisdiction was not available by operation of Section 99 of the Code and as to the territorial jurisdiction he was precluded by operation of Section 21 of C.P.C.; and on such premise it was held that the decree of the District Court could not be treated to be a nullity and person who invoked the jurisdiction cannot plead prejudice to himself by his own act.
12. This Court has held that it is a well established principle that a decree passed by a court without jurisdiction is a nullity and the plea can be set up whenever and wherever the decree is sought to be enforced or relied upon, and even at the stage of execution or in collateral proceedings."
17. In the case of Dr.Jagmittar Sain Bhagat (supra), paragraph 8 and 9 reads as follows:
"8. In Sushil Kumar Mehta v. Gobind Ram Bohra (Dead) Thr. Lrs., (1990) 1 SCC 193, this Court, after placing reliance on large number of its earlier judgments particularly in Premier Automobiles Ltd. v.
K.S. Wadke & Ors., (1976) 1 SCC 496; Kiran Singh v. Chaman Paswan, AIR 1954 SC 340; and Chandrika Misir & Anr. v. Bhaiyalal, AIR 1973 SC 2391 held, that a decree without jurisdiction is a nullity. It is a coram non judice; when a special statute gives a - 18 - R.F.A.NO.1159/2006 right and also provides for a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act and the Common Law Court has no jurisdiction; where an Act creates an obligation and enforces the performance in specified manner, "performance cannot be forced in any other manner."
9. Law does not permit any court/tribunal/ authority/forum to usurp jurisdiction on any ground whatsoever, in case, such an authority does not have jurisdiction on the subject matter. For the reason that it is not an objection as to the place of suing;, "it is an objection going to the nullity of the order on the ground of want of jurisdiction". Thus, for assumption of jurisdiction by a court or a tribunal, existence of jurisdictional fact is a condition precedent. But once such jurisdictional fact is found to exist, the court or tribunal has power to decide on the adjudicatory facts or facts in issue. (Vide: Setrucharlu Ramabhadra Raju Bahadur v. Maharaja of Jeypore, AIR 1919 PC 150; State of Gujarat v. Rajesh Kumar Chimanlal Barot & Anr., AIR 1996 SC 2664; Harshad Chiman Lal Modi v. D.L.F. Universal Ltd. & Anr., AIR 2005 SC 4446; and Carona Ltd. v. M/s. Parvathy Swaminathan & Sons, AIR 2008 SC 187)."
18. It is also relevant to extract the declaration of law by the Hon'ble Supreme Court in the case of State of Punjab v. Labour Court, Jullundur (supra), paragraph 7 held as follows:
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"It is apparent that the Payment of Gratuity Act enacts a complete code containing detailed provisions covering all the essential features of a scheme for payment of gratuity. It creates the right to payment of gratuity, indicates when the right will accrue, and lays down the principles for quantification of the gratuity. It provides further for recovery of the amount, and contains an especial provision that compound interest at nine per cent per annum will be payable on delayed payment. For the enforcement of its provisions, the Act provides for the appointment of a controlling authority, who is entrusted with the task of administering the Act. The fulfillment of the rights and obligations of the parties are made his responsibility, and he has been invested with an amplitude of power for the full discharge of that responsibility. Any error committed by him can be corrected in appeal by the appropriate Government or an appellate authority particularly constituted under the Act."
19. In this regard, it is relevant to extract the judgment of the Hon'ble Supreme Court in the case of the Premier Automobiles Limited (supra), wherein paragraph 9 and 23 of the judgment reads as under.
"9. It would thus be seen that through the intervention of the appropriate government, of course not directly, a very extensive machinery has been provided for settlement and adjudication of industrial disputes. But since an individual aggrieved cannot approach the Tribunal or the - 20 - R.F.A.NO.1159/2006 Labour Court directly for the redress of his grievance without the intervention of the Government, it is legitimate to take the view that the remedy provided under he Acts is not such as to completely oust the jurisdiction of the Civil Court for trial of industrial disputes. If the dispute is not an industrial dispute within the meaning of section 2(K) or within the meaning of section 2A of the Act, it is obvious that there is no provision for adjudication of such disputes under the Act. Civil Courts will be the proper forum. But where the industrial dispute is for the purpose of enforcing any right, obligation or liability under the general law or the common law and not a right, obligation or liability created under the Act, then alternative forums are there giving an election to the suitor to choose his remedy of either moving the machinery under the Act or to approach the Civil Court. It is plain that he can't have both. He has to choose the one or the other. But we shall presently show that the Civil Court will have no jurisdiction to try and adjudicate upon an industrial dispute if it concerned enforcement of certain right or liability created only under the Act.
In that event Civil Court will have no jurisdiction even to grant a decree of injunction to prevent the threatened injury on account of the alleged breach of contract if the contract is one which is recognized by and enforceable under the Act alone.- 21 - R.F.A.NO.1159/2006
23. To sum up, the principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute may be stated thus:
(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil court.
(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the Civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in particular remedy.
(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.
(4) If the right which is sought to be enforced is a right created under the Act such as Chapter VA then the remedy for its enforcement is either section 33C or the raising of an industrial dispute, as the case may be."
20. It is also to be noted that, for the employees of the private unaided institutions in Karnataka, the conditions of service is regulated by provisions under Karnataka Education - 22 - R.F.A.NO.1159/2006 Act and Rules made thereunder, and therefore, it is incumbent upon the plaintiff to approach the statutory body under section 133 of the Karnataka Education Act and the relevant Rules referred to above. It is also pertinent to mention here that, the appellant No.1 is a society registered under the Karnataka Societies Registration Act running various aided and unaided institutions. The appellant No.2 is an unaided institution under the control of appellant No.1-society and same is coming under the provisions of Karnataka Education Act. The service conditions of the employees of the private unaided education institutions are governed under the said Act. Rule 5 of the Rules reads as under:
"5. Scale of Pay : The scale of pay of an employee of an institution shall not be lower than the scale of pay of an employee of a corresponding post in the government educational institutions."
21. This Court in Siddarth Education Society v. Tumkur District Technical Institutions Non-teaching Employees Union and others7 at paragraph 22 held as follows:
"22. Though Rule 5 of the Rules 1978 provide that the scale of pay of an employee of an Institution 7 ILR 2003 KAR 163 - 23 - R.F.A.NO.1159/2006 shall not be lower than the scale of pay of an employee of a corresponding post in the government educational institutions it does not ipso facto mean that the benefit of DA, CCA, HRA, and other allowances are to be paid to such employees which non-teaching staff of the government technical institutions are entitled to. Rule 5 only provides for payment of scale of pay and it does not refer to any allowances. Before a set of employees could claim parity of pay scales on the principle of equal pay for equal work it has to be shown by such claimants that qualitatively and quantitatively the work which they do is the same type and nature as that of their counter parts whose pay scales are pressed into service for getting the parity. Not only that even educational qualifications must be identical. It is well settled by a series of decisions by the Supreme Court, different pay scales could be prescribed for employees having different educational qualifications. Therefore, even the aforesaid doctrine of equal pay for equal work only refers to pay and not to other allowances. In the case of MAHATMA GANDHI VIDYA PEETA, this Court was interpreting Rule 5 of Rules 1978 and it has been held that the provisions of Rule 5 would squarely apply to the petitioners who were working as non-teaching employees of the respondent society who are in the light of the said provision are entitled to the pay scales that cannot be lower than once admissible to the employees holding corresponding posts in the government educational institutions. Therefore, it is clear from the aforesaid judgment also what the employees in private - 24 - R.F.A.NO.1159/2006 educational institutions are entitled to is the pay scales which are admissible to the employees working in government institutions on equivalent posts. That judgment is of no assistance to the respondents to substantiate their claim for other monetary benefits such as DA, HRA, CCA and other allowances which are outside the purview of "the pay"
22. It is also relevant to extract paragraph 21 of the judgment of this Court in the case of the Karnataka Lingayat Education Society and others v. Siddappa G Namba and others8 it is held as follows:
"21. The claim of the respondents as per Rule 5 of the Karnataka Private Educational Institutions (Discipline and Control) Rules, 1978, which provides that the pay of the un-aided educational institutions shall be at par with the Government employees is also of no help to the respondents. Such parity of pay does not talk of allowances like Dearness Allowance, HRA, encashment of leave, etc. The learned Single Judge of this Court in Sri.Siddartha Education Society Vs. Tumkur District Technical Institutions Non-Teaching Employees Union, ILR 2003 (Kar.HC) 163, vide paragraph 22 quoted above, made this position clear, but, it appears that said judgment was not brought to the notice of the Labour Court at the time of decision in the impugned order passed by the Labour Court."8
ILR 2017 KAR 5139 - 25 - R.F.A.NO.1159/2006
23. It is also relevant to extract the declaration of law made in the case of Gadigayya and others v. K.L.E. Society and others9, wherein paragraph 12 held as follows:
"12. With regard to the contention that the appellants are entitled for pay and allowances on par with the government employees is also untenable. The learned Single Judge relying upon the decision of this Court in the case of Sri. Siddartha Education Society Vs. Tumkur District Technical Institutions Non-Teaching Employees Union, ILR 2003 (Kar.HC) 163, has answered the said issue i.e. private educational institution employees are not entitled for monetary benefits such as DA, HRA and other allowances on par with the government educational institutions."
24. It is also relevant to follow the declaration of law made by the Hon'ble Supreme Court in the case of Satimbla Sharma & Others v. St. Paul Sr. Secondary School and others10, paragraph 10 to 12 held as follows:
"10. In Frank Anthony Public School Employees' Association v. Union of India & Ors11, relied on by learned counsel for the appellants, the scales of pay and other terms and conditions of service of teachers and other employees of the Frank Anthony Public School, New Delhi, which was a private unaided 9 2018 (4) AKR 90 10 AIR 2011 SC 2926 11 AIR 1987 SC 311 - 26 - R.F.A.NO.1159/2006 minority institution, compared very unfavourably with those of their counterparts of the Delhi Administration Schools and the Frank Anthony Public School Employees' Association sought equalization of their pay-scales and conditions of service with those of teachers and employees of Government schools. Sections 8 to 11 of the Delhi School Education Act dealt with the terms and conditions of service of employees of recognized private schools. Section 10 of the Delhi School Education Act provided that the scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of the recognized private schools shall not be less than those of the corresponding status in schools run by the appropriate authority. Section 12 of the Delhi School Education Act, however, provided that the provisions of Sections 8 to 11 including Section 10 were not applicable to unaided minority institutions. The case of teachers of Frank Anthony Public School was that if Sections 8 to 11 were made applicable to them, they would at least be as well off as teachers and other employees of Government schools. The Frank Anthony Public School Employees' Association therefore challenged Section 12 of the Delhi School Education Act as discriminatory and violative of Article 14 of the Constitution and this Court held that Section 12 of the Delhi School Education Act insofar as it makes the provisions of Sections 8 to 11 inapplicable to unaided minority schools is discriminatory. This was thus a case in which the employees of unaided minority institutions were not given the benefits available to employees of - 27 - R.F.A.NO.1159/2006 other private institutions under Sections 8, 9, 10 and 11 of the Delhi School Education Act only on the ground that unaided minority institutions enjoy autonomy of administration under Article 30(1) of the Constitution and this Court held that this could not be a rational basis for differentiation of service conditions, pay and other service benefits between employees of unaided minority institutions and the employees of other private schools and the Court declared Section 12 as discriminatory. In other words, the State by making a statutory provision in Section 12 of the Delhi School Education Act which was discriminatory, had violated the mandate to the State under Article 14 of the Constitution not to deny the equal protection of the laws within its territories. This decision in the case of Frank Anthony Public School Employees' Association v.Union of India & Ors. (supra) does not assist the appellants in any manner because the guarantee of equality, as we have said, is not available against an unaided private minority school.
11. We also do not think that the Court could issue a mandamus to a private unaided school to pay the salary and allowances equal to the salary and allowances payable to teachers of Government schools or Government aided schools. This is because the salary and allowances of teachers of a private unaided school is a matter of contract between the school and the teacher and is not within the domain of public law. In Sushmita Basu & Ors. v.- 28 - R.F.A.NO.1159/2006
Ballygunge Siksha Samity & Others.12 , the teachers of a recognized private school known as Ballygunge Siksha Sadan in Calcutta filed a Writ Petition in the High Court of Calcutta praying for issuance of writ of mandamus directing the authorities of the school to fix the salary of teaching and non-teaching staff of the school and to remove all anomalies in the scales of pay as recommended by the Third Pay Commission as extended to other Government aided schools and Government schools and this Court held that in the absence of statutory provision no such direction can be issued by the High Court under Article 226 of the Constitution. Where a statutory provision casts a duty on a private unaided school to pay the same salary and allowances to its teachers as are being paid teachers of Government aided schools, then a writ of mandamus to the school could be issued to enforce such statutory duty. But in the present case, there was no statutory provision requiring a private unaided school to pay to its teachers the same salary and allowances as were payable to teachers of Government schools and, therefore, a mandamus could not be issued to pay to the teachers of private recognized unaided schools the same salary and allowances as were payable to Government institutions.
12. In K. Krishnamacharyulu and Others vs. Sri Venkateswara Hindu College of Engineering and Another13, relied upon by the learned counsel for the appellants, executive instructions were issued by the 12 (2006) 7 SCC 680 13 AIR 1998 SC 295 - 29 - R.F.A.NO.1159/2006 Government that the scales of pay of Laboratory Assistants as non-teaching staff of private colleges shall be at par with the government employees and this Court held that even though there were no statutory rules, the Laboratory Assistants as non-
teaching staff of private college were entitled to the parity of the pay-scales as per the executive instructions of the Government and the writ jurisdiction of the High Court under Article 226 of the Constitution is wide enough to issue a writ for payment of pay on par with government employees. In the present case, there are no executive instructions issued by the Government requiring private schools to pay the same salary and allowances to their teachers as are being paid to teachers of Government schools or Government aided schools."
25. In the case of State of Maharashtra and another v. Bhagwan and others in Civil Appeal No.7682 of 2021 disposed of on 10.01.2022 at paragraph 10.5 to 10.7 reads as under:
"10.5 In the present case, WALMI being an autonomous body, registered under the Societies Registration Act, the employees of WALMI are governed by their own Service Rules and conditions, which specifically do not provide for any pensionary benefits; the Governing Council of WALMI has adopted the Maharashtra Civil Services Rules except the Pension Rules. Therefore, as such a conscious policy decision has been taken not to - 30 - R.F.A.NO.1159/2006 adopt the Pension Rules applicable to the State Government employees; that the State Government has taken such a policy decision in the year 2005 not to extend the pensionary benefits to the employees of the aided institutes, boards, corporations etc.; and the proposal of the then Director of WALMI to extend the pensionary benefits to the employees of WALMI has been specifically turned down by the State Government. Considering the aforesaid facts and circumstances, the High Court is not justified in directing the State to extend the pensionary benefits to the employees of WALMI, which is an independent autonomous entity.
10.6 The observations made by the High court that as the salary and allowances payable to the employees of WALMI are being paid out of the Consolidated Fund of the State and/or that the WALMI is getting grant from the Government are all irrelevant considerations, so far as extending the pensionary benefits to its employees is concerned. WALMI has to run its administration from its own financial resources. WALMI has no financial powers of imposing any tax like a State and/or the Central Government and WALMI has to depend upon the grants to be made by the State Government.
10.7 Now, so far as the observations made by the High Court that the amount available with WALMI and deposited with E.P.F. towards the employee's contribution itself is sufficient to meet the financial - 31 - R.F.A.NO.1159/2006 liability of the pensionary benefits to the employees and, therefore, there is no justification and/or reasonable basis for the State Government to refuse to extend the benefit of pension to the retired employees of WALMI is concerned, it is to be noted that merely because WALMI has a fund with itself, it cannot be a ground to extend the pensionary benefits. Grant of pensionary benefits is not a one-time payment. Grant of pensionary benefits is a recurring monthly expenditure and there is a continuous liability in future towards the pensionary benefits. Therefore, merely because at one point of time, WALMI might have certain funds does not mean that for all times to come, it can bear such burden of paying pension to all its employees. In any case, it is ultimately for the State Government and the Society (WALMI) to take their own policy decision whether to extend the pensionary benefits to its employees or not. The interference by the Judiciary in such a policy decision having financial implications and/or having a cascading effect is not at all warranted and justified."
26. Following the declaration of law referred to above, I am of the view that the defendants being a private unaided institution, and as such, by necessary implication, the Karnataka Education Act read with the Rules referred to above is applicable to the case of the plaintiff and therefore, jurisdiction of Civil Court under Section 9 of CPC is excluded to - 32 - R.F.A.NO.1159/2006 claim the benefits as prayed for by the plaintiff in the plaint. Hon'ble Supreme Court in the case of Dhulabhai and others v. State of Madhya Pradesh and another14.
"32. Neither of the two cases of Firm of Illuri Subbayya Chetty and Sons v. The State Of Andhra Pradesh15 or Kamala Mills Ltd vs State Of Bombay16 can be said to run counter to the series of cases earlier noticed. The result of this inquiry into the diverse views expressed in this Court may be stated as follows :-
(1) Where the statute gives a finality to the orders of the special tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.
Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of 14 AIR 1969 SC 78 15 AIR 1964 SC 322 16 AIR 1965 SC 1942 - 33 - R.F.A.NO.1159/2006 the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.
(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.
- 34 - R.F.A.NO.1159/2006
(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply."
27. Following the declaration of law made by the Constitution Bench of the Hon'ble Supreme Court, I am of the view that the suit itself is not maintainable. At this juncture, it is relevant to cite the judgment of the Hon'ble Supreme Court in the case of R. Kandasamy (Since Dead) and others v. T.R.K. Sarawathy and another17 at paragraph 45 to 47 reads as under:
"45. Should the trial court not satisfy itself that the jurisdictional fact for grant of relief does exist, nothing prevents the court higher in the hierarchy from so satisfying itself. It is true that the point of maintainability of a suit has to looked only through the prism of section 9, CPC, and the court can rule on such point either upon framing of an issue or even prior thereto if Order VII Rule 11 (d) thereof is applicable. In a fit and proper case, notwithstanding omission of the trial court to frame an issue touching jurisdictional fact, the higher court would be justified in pronouncing its verdict upon application of the test laid down in Shrisht Dhawan v. Shaw 18 Brothers .17
AIR 2025 SC 44 18 (1992) 1 SCC 534 - 35 - R.F.A.NO.1159/2006
46. In this case, even though no issue as to maintainability of the suit had been framed in course of proceedings before the Trial Court, there was an issue as to whether the Agreement is true, valid and enforceable which was answered against the sellers.
Obviously, owing to dismissal of the suit, the sellers did not appeal. Nevertheless, having regard to our findings on the point as to whether the buyer was 'ready and willing', we do not see the necessity of proceeding with any further discussion on the point of jurisdictional fact here.
47. However, we clarify that any failure or omission on the part of the trial court to frame an issue on maintainability of a suit touching jurisdictional fact by itself cannot trim the powers of the higher court to examine whether the jurisdictional fact did exist for grant of relief as claimed, provided no new facts were required to be pleaded and no new evidence led."
28. In view of the declaration of law made by the Hon'ble Supreme Court in R.Kandasamy (supra), stated above, I am of the view that the suit itself is not maintainable and it is expedient for the plaintiff to approach the competent Authority for redressal of grievance under the Act and Rules.
29. Though the learned counsel appearing for the respondent-plaintiff submitted that it is a case of discrimination by the defendants-appellants herein in refusing to grant benefits to the employees, however, same cannot be - 36 - R.F.A.NO.1159/2006 considered in the realm of the established principle of law as stated above.
30. It is also to be noted that, though the learned counsel appearing for the respondent-plaintiff submitted that the respondent-plaintiff is entitled for benefits and some of the employees have been already paid by the appellants- defendants, however, as I have arrived at a conclusion that the suit itself is not maintainable under Section 9 of CPC, the said plea cannot be accepted. It is settled principle in law that if the finding recorded by the Trial Court is contrary into law and this Court while exercising the jurisdiction under Section 96 read with Order XLI Rule 31 of CPC has to re-appreciate the evidence on record and has to assess whether the finding recorded by the Trial Court is in accordance with law, being a final Court for fact finding in the circumstances of the case. In view of the fact that the Trial Court has misconstrued the oral and documentary evidence on record and has not appreciated the material in the light of the settled principles of law that the defendant-institution is a private unaided institution and the service conditions of the employees are governed by the provisions under the Act and Rules so also , the bye-laws of the defendant No.1-Society and therefore, I find force in the - 37 - R.F.A.NO.1159/2006 submission made by the learned counsel appearing for the appellant that the suit itself is not maintainable and the plaintiff has to approach the competent authority for redressal of his grievance.
31. In that view of the matter, taking into consideration the observation made above with regard to the facts and circumstances of the case so also the declaration of law made by this Court and the Hon'ble Supreme Court, I am of the view that the points for consideration are answered in favour of the defendants-appellants and suit itself is not maintainable. In the result, I pass the following:
ORDER
i) The appeal is allowed.
ii) Judgment and decree dated 31.01.2006 in O.S.No.360/2002 passed by the Principal Civil Judge (Sr.Dn) Belgaum, is hereby set aside.
iii) Suit filed by the plaintiff is dismissed.
Sd/-
(E.S. INDIRESH) JUDGE SMM/YAN