Gujarat High Court
Archanaben Bishambharnath Mishra vs Principal, Gyanodaya Shishu Mandir on 3 December, 2021
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
C/AO/294/2019 ORDER DATED: 03/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 294 of 2019
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ARCHANABEN BISHAMBHARNATH MISHRA
Versus
PRINCIPAL, GYANODAYA SHISHU MANDIR
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Appearance:
MR NS SHETH(840) for the Appellant(s) No. 1
MR SUDHIR M MEHTA(2058) for the Respondent(s) No. 1,2
MS SHAILEE S MEHTA(5873) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 03/12/2021
ORAL ORDER
1. This is an Appeal from Order filed by the appellant under Order-41 Rule-1(D) of the Code of Civil Procedure, 1908. The appellant herein - original plaintiff is aggrieved by the order passed by the Court below dated 13.07.2011 and 15.10.2019. The order dated 13.07.2011 reads thus:
"The plaintiff and her advocate is absent. Plain reading of Plaint show that the opponents have removed the applicant working as a Primary Teacher so she can challenge her removal between the tribunal for teachers. Thus, Civil court has no jurisdiction to try the suit and hence, the suit is dismissed for want of jurisdiction."
2. The appellant herein - original plaintiff had thereafter filed Restoration Application before the Court below. The Court below vide order dated 15.10.2019, dismissed the Restoration Application, Page 1 of 6 Downloaded on : Wed Jan 12 07:11:16 IST 2022 C/AO/294/2019 ORDER DATED: 03/12/2021 wherein, in para-4, the Court below has observed thus:
"4. I have considered the submissions of Ld. Counsels for the parties and perused the record. Perusal of record transpires that the applicant / plaintiff had instituted the present suit to challenge her removal from the job as she was working as the primary teacher. Perusal of order dated 13.7.2011 transpires that the said suit dismissed on the ground of jurisdiction and Civil Court has no jurisdiction. The plaintiff could have approached the Tribunal for Teachers. In view of above facts, present application is not sustainable...."
3. The facts stated by the appellant in the memo of appeal are summarized as under:
3.1. The appellant - original plaintiff was working in the pri-primary section of the respondent no.1- institute. The appellant was orally dismissed from service on 07.05.2003 without being issued any show cause notice. As per the say of the appellant, on 07.05.2003, the appellant had completed merely 4 years and 6 months of the service. As per the say of the appellant, after approaching the Director Primary Education on 23.07.2003, the appellant came to know that the Director of Primary Education had not taken any step against the respondents herein, therefore, the appellant approached this Court by filing Special Civil Application No. 15233 of 2003. In the said matter, initially notice was issued on 17.10.2003 against the respondent no.1. Thereafter, on 05.08.2004, Special Civil Application No. 15233 of 2003 was decided finally. The appellant was permitted to file appropriate proceedings before the appropriate forum. Since there was no tribunal or any other forum available for the purpose of redressing Page 2 of 6 Downloaded on : Wed Jan 12 07:11:16 IST 2022 C/AO/294/2019 ORDER DATED: 03/12/2021 the grievance of pre-primary teachers, the appellant approached the City Civil Court by way of filing Civil Suit No. 1776 of 2005.
3.2. The City Civil Court, Ahmedabad was pleased to dismiss the suit of the plaintiff - appellant on 13.07.2011 on the ground of want of jurisdiction, as the appellant - plaintiff was working as a Primary Teacher and so she could challenge her removal before the Tribunal for teachers. The said order was passed in the absence of the appellant and her advocate.
3.3. The appellant thereafter filed Restoration Application No. 314 of 2013 on 09.11.2011 for the purpose of being heard on the ground of want of jurisdiction as stated by the City Civil Court, in its order dated 13.07.2011 passed below Exh.1 in Civil Suit No. 1776 of 2005. The said restoration application was decided by order dated 15.10.2019. The said application was dismissed by the City Civil Court. Therefore, the appellant is before this Court by way of the present Appeal from Order.
4. Heard Mr. N.S. Sheth, the learned counsel appearing for the appellant and Mr. Sudhir M. Mehta, the learned counsel appearing for the respondents.
5. Mr. Sudhir Mehta, the learned counsel appearing for the respondent has relied upon the decision rendered by the Hon'ble Apex Court in the case of Rajasthan State Road Transport Corporation and Others v. Zakir Hussain reported in 2005 (7) SC 512 and submitted that the Civil Court has no jurisdiction to try the dispute between the parties.
6. Mr. N.S. Sheth, the learned counsel appearing for the Page 3 of 6 Downloaded on : Wed Jan 12 07:11:16 IST 2022 C/AO/294/2019 ORDER DATED: 03/12/2021 appellant has submitted that the Court below has committed an error in dismissing the appeal in not considering the grounds which were agitated in the application being Restoration Application No. 314 of 2013, in which it was stated that the applicant was in the process of seeking legal help and requested that the matter be decided on merits. Mr. Sheth, the learned counsel would further submits that, Appeal from Order would be maintainable and has placed reliance upon the decisions rendered in the case of Bhanu Kumar Jain v. Archana Kumar and another reported in AIR 2005 SC 626 and Jaswant Singh and others v. Prakash Kaur and another reported in AIR 2017 SC 5275.
7. From the documents and averments made in the application, it transpires that the appellant was a Teacher in Pre-
Primary school of the respondent no.1 institute. The appellant came to be orally dismissed from the services by the respondent no.1 on 07.05.2003 without issuance of show cause notice. Thereafter, the appellant approached the District Primary Education on 23.07.2003. The appellant thereafter filed Special Civil Application No. 15233 of 2003 before this Court. This Court passed the following order on 05.08.2004:
"Heard the learned advocates.
The petitioner challenges the action of the respondent No.1 - School in terminating the service of the petitioner without following due procedure of law.
It is admitted that the respondent No.1 is a private school. The petitioner was a teacher in pre-primary section. A petition under Article 226 of the Constitution of India, therefore, shall not be maintainable.
In that view of the matter, the petition is dismissed. Notice is discharged. The petitioner shall be at liberty Page 4 of 6 Downloaded on : Wed Jan 12 07:11:16 IST 2022 C/AO/294/2019 ORDER DATED: 03/12/2021 to challenge the impugned action before the appropriate forum."
8. The appellant then filed Civil Suit being Civil Suit No. 1776 of 2005 before the City Civil Court, Ahmedabad. The Court below dismissed the suit of the appellant on the ground of want of jurisdiction and observed that the appellant was working as Primary Teacher and she could challenge her removal before the Tribunal. The said order came to be passed in absence of the appellant and her advocate. The said order also record the said facts. The appellant filed Restoration Application No. 314 of 2013 for urging the Court below to restore the Civil Suit No. 1776 of 2005 and interest of justice would be served if the suit would be restored. The Court below dismissed the application by an order dated 13.07.2011 which is reproduced above.
9. In view of this Court, the appellant has been agitating her cause since 2005, she has been sent from post to pillar by the authorities. The Court below while rejecting the application for restoration exceeded its jurisdiction also on the ground of non- jurisdiction of the Civil Court. In view of this Court, no prejudice would be caused to the respondents, if the matter is remitted back to the Court below for adjudication. In fact, it will be in the interest of justice, if the appellant is heard by the Court below and adjudicate the matter on its own merits, since the order was passed in absence of the appellant herein. While deciding the application for restoration, the Court could not have dismissed the suit on merits. In my view, sufficient cause is made out by the appellant - plaintiff for restoration of the Suit filed before the Civil Court. In view of the above-referred decisions of the Hon'ble Apex Court, Appeal from Order would be maintainable.
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10. In the facts and circumstances of the case, interest of justice would be served if the Civil Suit is restored on the file of the Court below. The Court below is directed to decide the Civil Suit within a period of six months from the date of receipt of the order. The trial Court may keep in mind that the services of the appellant herein was terminated as back as in the year 2003.
11. The order passed by the Court below is quashed and set aside and the appeal filed by the appellant is allowed to the aforesaid extent. The Court below is directed to decide the suit within a period of six months from the date of the receipt of the order. It is kept open for both the parties to take their rights and contentions available in accordance with law before the trial Court. The parties are directed to cooperate in the suit proceedings. It is clarified that this Court has otherwise not gone into the merits of the matter.
12. Accordingly, the Appeal from Order stands allowed to the aforesaid extent.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 6 of 6 Downloaded on : Wed Jan 12 07:11:16 IST 2022