Karnataka High Court
Smt Teresa Joseph W/O C S Joseph vs M/S Rajashree Vidyamandir on 2 June, 2020
Author: Ravi V Hosmani
Bench: Ravi V. Hosmani
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF JUNE, 2020
BEFORE
THE HON'BLE MR.JUSTICE RAVI V. HOSMANI
R.S.A. No. 2314/2007
Between:
Smt. Teresa Joseph,
W/o C.S. Joseph,
Aged about 46 years, Occ: Nil,
R/o. C/o Bhaskara Rao,
H.No.1-107, Mottigere Building,
Upper Lane, Station Road,
Gulbarga - 585 101.
... Appellant
(By Sri. Vinayak Apte, Advocate)
And:
1. M/s Rajashree Vidyamandir,
Through its Chairman,
Rajashree Cements,
Adityanagar, Malkhed,
Sedam, Gulbarga - 585 222.
2. The Principal,
Rajashree Vidya Mandir,
Rajashree Cements,
Aditya nagar, Malkhed,
Sedam, Gulbarga - 585 222.
... Respondents
(By Sri. Pramod N. Kathavi, Advocate)
2
This appeal is filed under Section 100 of CPC
praying to set aside the judgment and decree dated
13.06.2007 passed in R.A.No.68/2006 of the file of Civil
Judge (Sr.Dn.) Sedam, dismissing the appeal and
confirming the order dated 07.07.2006 passed in
O.S.No.7/2004 on the file of the Civil Judge (Jr.Dn.)
Sedam.
This appeal having been heard and reserved on
13.03.2020 for judgment and coming on for
pronouncement of judgment this day, Ravi V. Hosmani
J., delivered the following:-
JUDGMENT
This appeal is filed under Section 100 of CPC against the judgment and decree dated 13.06.2007 passed in R.A. No.68/2006 on the file of Civil Judge (Sr.Dn.) Sedam, dismissing the appeal and confirming the order dated 07.07.2006 passed in O.S. No.7/2004 on the file of the Civil Judge (Jr.Dn.) Sedam.
2. The appellant was the plaintiff and respondent Nos.1 and 2 were defendant Nos.1 and 2 before the Trial Court.
3
3. For the sake of convenience, the parties are referred henceforth according to their ranks before the Trial Court.
4. The case of the plaintiff in brief is as follows:
The plaintiff was appointed as a teacher by the defendants in the year 1990. She was working to the satisfaction of the management. Her husband C.S. Joseph was an employee of Rajashree Cement Works, Adityanagar, Malkhed. He was always harassing and ill-
treating her. Since, the school administration is with Rajashree Cement Works, he was having capacity to influence the decision of the Management. He wanted to get rid of her either by divorce or otherwise. Thus he began to harass her through the school management. At his instance, the staff and management began making false and baseless allegations against her. On 27.11.1998, she was issued with the articles of charge.4
The charges were trivial, vague and did not contain any material particulars. She filed reply denying the charges. However after conducting farce of an enquiry in complete violation of the principles of natural justice, an order of dismissal from service was passed on 21.06.1999. Against that order she preferred an appeal under the provisions of the Education Act. The management took a defence therein that the Appeal was not maintainable. On 07.11.2003, the appeal came to be dismissed as not maintainable. Thereafter, the plaintiff filed O.S. No.7/2004 seeking for the relief of declaration that the order of dismissal dated 21.06.1999 passed by the respondent/defendant as illegal and void ab-initio.
5. In response to the notice, the defendant No.1 Management chose to adopt the written statement filed by the defendant No.2. The defendant No.2, filed its written statement denying all the plaint averments. It 5 was contended that the plaintiff failed to carry out her work to their satisfaction. She was irregular to school, failed to carry out the work entrusted and there were complaints of misbehavior against her. Hence she was issued with articles of charge. She was afforded sufficient time and opportunity and after holding an inquiry, order dated 21.06.1999, dismissing her from service was passed. It was also specifically contended that as the suit is filed seeking for declaration in respect of the order dated 21.06.1999, the suit was barred by limitation. It was also contended that a contract of personal service is not enforceable, hence the suit is not maintainable. The defendant also contended that the relief sought by the plaintiff is only for declaration. And since the plaintiff has not asked any appropriate reliefs, the suit is not maintainable etc.
6. On the basis of the pleadings of the parties, the Trial Court framed the following issues: 6
1) Whether, the plaintiff proves that, the dismissal order dated 21.06.1999 passed by the respondent defendant as illegal and alright ab-
initio?
2) Whether, the plaintiff is entitled for the relief sought?
3) Whether, the defendant proves that, the suit is not maintainable in law or on facts?
4) Whether, the plaintiff proves that, the Hon'ble Court has got jurisdiction to try the suit?
5) What order or decree?
Issue Nos.3 and 4 were treated as preliminary issues. The Trial Court answered issue No.3 in the affirmative and issue No.4 in the negative and dismissed the suit as being barred by limitation and also on the ground of lack of jurisdiction.
7. Being aggrieved by the said judgment and decree, the plaintiff filed R.A.No.68/2006 before the Civil Judge (Sr.Dn.) Sedam. After hearing and on going through the materials on record, the First Appellate Court framed the following points for its consideration: 7
1. Whether the Trial Court has erred in holding that, that suit is barred by limitation?
2. Whether the Trial Court is erred in holding that the civil court has no jurisdiction to try the suit?
3. Whether the order passed by the Trial Court requires interference?
4. What order?
8. On the basis of the pleadings of the parties, the First Appellate Court answered the above points in the negative and dismissed the appeal by confirming the order passed by the Trial Court.
9. Being aggrieved by the judgment and decree passed by the First Appellate Court, plaintiff has preferred this second appeal. The appeal was admitted on 08.08.2008 to consider the following substantial question of law:
"Whether in the facts and circumstances of the case, the courts below were justified in dismissing the suit on the ground, the suit is barred by limitation?"8
10. The matter was earlier heard and reserved for judgment on 13.03.2020. Thereafter, this Court felt that yet another substantial question of law arises for consideration. Therefore, the matter was posted for hearing on the same on 22.5.2020. On that day, the learned counsel for the appellant could not able to connect through Video Conference, the matter was adjourned to 28.5.2020. On the said day, the following additional substantial question of law was framed:
"Whether the Trial Court and the First Appellate Court were justified in dismissing the suit on the ground that the personal services couldn't be enforced in a civil court even though the suit is filed only for declaration that the order of dismissal from service is null and void?"
11. Thereafter an opportunity to address arguments on the additional substantial question of law was provided. Both the learned counsel made their 9 submissions and concluded their arguments on the additional substantial question of law.
12. The learned counsel for the appellant submitted that the Trial Court decided the suit on two preliminary issues: i.e., Issue No.3 and Issue No.4. He submitted that the issue of limitation being a mixed question of law and fact, could not have been treated as a preliminary issue without recording of evidence. It was also submitted that, immediately after the order of dismissal was passed, the plaintiff had approached the Appellate Tribunal under the Education Act, within the period of limitation. In the said proceedings, the defendants filed objections contending that the Appellate Tribunal did not have jurisdiction as the respondent school was affiliated to the Central Board of Secondary Education, New Delhi, which was not within the purview of the Karnataka Education Act, 1983. Upholding the said objection, the Appeal came to be 10 dismissed on 7.11.2003. Immediately thereafter the plaintiff filed O.S. No.7/2004. As the plaintiff was pursuing her cause bonafide before a wrong forum, the suit is within the period of limitation, in view of Section 14 of the Limitation Act( hereinafter referred to as "Act" for short). However, the Trial Court and the First Appellate Court have missed out on this important aspect merely on the ground that no liberty was granted to the plaintiff to file the civil suit.
13. Insofar as additional substantial question of law, it was submitted that both the courts committed a grave error in assuming that the plaintiff's suit was for enforcing conditions of service, even when it was for a mere declaration that the order of dismissal from service was illegal, null and void, and such suit was maintainable as per the law laid down in the case of K.P. Puttaram Vs. Vijaya Bank Ltd. (ILR 1991 Kar. 3614). In the said decision, this Court has held that 11 though the civil court cannot go into the adequacy of evidence in disciplinary proceedings, it has jurisdiction to go into the question of regularity of proceedings, violation of principles of natural justice, authority of the disciplinary authority and proportionality of punishment etc. It was submitted that in view of the said decision, the plaintiff's suit was maintainable and the civil court had jurisdiction. The learned counsel also referred to the decision in the case of Dr.K.T. Shivaiah Vs. G. Puttaswamy Gowda and Anr. (ILR 2003 Kar. 2199).
14. The learned counsel for the appellant-plaintiff further submitted that the issue of maintainability/ jurisdiction was decided on the assumption that the plaintiff was seeking to enforce the service conditions. As the very nature of the relief sought for has been perversely understood, the decision of both the courts 12 are perverse and hence the same calls for interference in this appeal.
15. On the other hand, the learned counsel for the respondent submitted that though the issue of limitation is a mixed question of law and fact, in this case, the plaintiff pursued the appeal under the Education Act in all earnest, despite clear objections about maintainability having been raised by the respondent in the objections. It was further contended that there was no prayer made before the Appellate Tribunal, seeking liberty to approach proper forum, and none was granted, when it came to be dismissed on the ground of jurisdiction. Moreover, there are no specific pleadings either in the plaint and no separate application or affidavit is filed for explaining the limitation. Under these circumstances, the question of limitation was only a question of law and the dismissal of the suit on this ground was fully justified. It was also 13 submitted that the finding being concurrent, could not be disturbed in second appeal.
16. It was also contended that except seeking the relief of a bare declaration, no other consequential relief was sought. It was submitted that granting of such declaration would amounts to continuing the plaintiff in service, which relief is barred under Section 14 of the Specific Relief Act. Hence, the suit was not maintainable and the Civil Court lacked jurisdiction to entertain it. In support of his submissions, the counsel for the respondent relied upon the decision of the Hon'ble Supreme Court in the case of Pearlite Liners Pvt. Ltd. Vs. Manorama Sirsi [2004 (3) SCC 172].
17. Heard the respective counsel on both side and perused the records. The undisputed facts of the case are that the plaintiff was appointed in 1990, as a teacher in a school run by the defendant No.1 - management. Later she was issued with articles of 14 charge alleging various misconducts, which she denied by filing reply. After holding departmental enquiry, and issuing show cause notice, the plaintiff was dismissed from service, vide an order dated 21.06.1999. Challenging the said order, the plaintiff filed an appeal under the Education Act. The proceeding was opposed by the defendants on the ground that the Appellate Tribunal lacked jurisdiction as the school was affiliated to the Central Board of Secondary Education, New Delhi. Upholding the same, the appeal came to be dismissed on 07.11.2003. Thereafter O.S. No.7/2004 was filed on 22.01.2004. The relief claimed in the said suit is as follows:
"Wherefore it is most respectfully prayed that the Hon'ble Court may be pleased to declare the order of dismissal dated 21.06.1999 passed by the respondent/defendant as illegal and void ab initio, in the interests of justice and equity".15
18. After the defendants entered appearance and filed written statements, five issues were framed and issues No.3 & 4 were heard as preliminary issues. The Trial Court answered both the issues against the plaintiff and dismissed the suit on the ground of limitation as well as jurisdiction. On re-appreciation of the case, the First Appellate Court also arrived at same conclusion and dismissed the appeal. Against the concurrent findings, the plaintiff is in appeal.
19. The Trial Court while dealing with issue No.3 has taken note of the decision of the Hon'ble Supreme Court in the case of State of Punjab Vs. Amrik Singh [1998 (9) SCC 696], wherein it is held that the period of limitation for seeking declaration that an order of termination from service is invalid, as per Art.113, is 3 years. It has held that the suit filed on 21.01.2004 challenging the order of dismissal from service dated 21.06.1999 was beyond the period of limitation and 16 accordingly answered the issue and dismissed the suit. The contention with respect to Section 14 of the Act was brushed aside on the reasoning that no liberty was granted to file a civil suit at the time of dismissal of the appeal filed under the Education Act. Even before the First Appellate Court, the plaintiff sought to put-forth his case under Section 14 of the Act. He relied upon the decision of this Court in the case of City Municipal Council vs. S.A. Lateef, (ILR 2004 KAR 4322). However, the First Appellate Court held that the decision did not apply to this case as the plaintiff therein was granted liberty to file a civil suit, unlike in this case. Even the argument that limitation is a mixed question of fact and law was also brushed aside on the reasoning that as no liberty to file a civil suit was granted in this case, the issue was a question of law and as the suit was filed beyond the period of limitation prescribed, it was barred by limitation. 17
20. However, the High Court of Kerala in the case of Patel Babu Lal Pranlal Brothers and others Vs. Pameric Export International, Cochin and others (AIR 1999 Ker 355) has held that though the provisions of Order VII Rule 6 are mandatory, it is not necessary that the plaint should specifically claim the grounds of exemption under Section 14 of the Limitation Act, if such claim is apparent on the face of the plaint. In this case the explanation is found in para
- 10 of the plaint. The plaintiff has stated that after the order of dismissal from service, she filed an appeal under the Education Act, which came to be dismissed on 7.11.2003 as not maintainable and the suit came to be filed thereafter. From the above, it can be seen that the necessary particulars of the earlier proceedings pursued by the plaintiff has been stated by her. Mere non-mentioning of Section 14 of the Act shall not prejudice her. Further from the wordings of Section 14 of the Act, it can be seen that it is the power of the 18 Court to condone the delay or not. Non-grant of liberty by the District Court at the time of dismissing the appeal cannot be a bar to claim exemption under Section 14 of the Act. Hence, the Trial Court and the First Appellate Court have committed a grave error in dismissing the suit on the ground of limitation. The first substantial question of law framed is answered accordingly.
21. The next point for consideration is, whether an additional substantial question of law can be framed subsequent to admission of the appeal? The Hon'ble Supreme Court has held that a High Court is duty bound to frame a substantial question of law before deciding an appeal under Section 100 of the Code of Civil Procedure [State of Punjab Vs. Amarjit Singh, 2010 (15) SCC 535] and that it is only the framing of the substantial question of law that grants jurisdiction to the High Court to decide the appeal under Section 19 100 of the CPC [Surat Singh Vs. Siri Bhagwan, 2018 (4) SCC 562]. It has also been held that the decision of the High Court under Section 100 of the CPC should be confined only to the substantial questions of law framed [Syeda Rahimunnisa Vs. Malan Bi 2016 (10) SCC 315]. But that does not whittle down the power of the High Court to frame substantial questions of law at any time subsequent to the admission of the appeal. However, it can be by assigning special reasons and on being satisfied that the substantial question of law arises in the case [U.R. Virupakshappa Vs. Sarvamangala, 2009 (2) SCC 177].
22. In the case on hand, it is seen that the Trial Court as well as the First Appellate Court have decided the suit both on the ground of limitation as well as jurisdiction. But at the time of admission of the appeal, the substantial question of law is framed only on the issue of limitation. A decision on maintainability of the 20 suit is a jurisdictional question, which goes to the root of the case. And the question "whether a suit which is apparently not maintainable should still be allowed to run its course", has already been answered by the Hon'ble Supreme Court in Pearlite Liners case supra. In the said matter, after examining the prayers sought for in the plaint, the Hon'ble Supreme Court found that none of the reliefs sought for could be granted by the civil court. Under such circumstances, it held that the Trial Court and the First Appellate Court were justified in dismissing the suit on the ground of jurisdiction. In the above circumstances, the additional substantial question of law has been framed and taken up for consideration.
23. Firstly, it is necessary to examine the nature of the relief sought for in the suit. The plaintiff has merely sought a declaration that the order of dismissal from service passed by the management was illegal and 21 void ab initio. It is settled law that a contract of personal service cannot be specifically enforced in a civil suit. However, there are three recognised exceptions to the said proposition. In the case of the Executive Committee of Vaish College, Shamli and Ors. Vs. Lakshmi Narayan and Ors., 1976 (2) SCC 58, the Hon'ble Supreme Court referring to it's earlier decisions in S.R. Tewari v. District Board, Agra (AIR 1964 SC 1680) and the Executive Committee of U.P. State Warehousing Corporation Ltd. v. Chandra Kiran Tyagi [1969 (2) SCC 838], held as follows:
"From the two decisions of this Court, referred to above, the position in law is that no declaration to enforce a contract of personal service will be normally granted. But there are certain well- recognised exceptions to this rule and they are : To grant such a declaration in appropriate cases regarding (1) A public servant, who has been dismissed from service in contravention of Article 311. (2) Reinstatement of a dismissed worker under 22 industrial law by Labour or Industrial Tribunals. (3) A statutory body when it has acted in breach of a mandatory obligation, imposed by statute."
(Emphasis supplied)
24. Admittedly, the defendants are private entities. The plaintiff was working as a teacher. As per the decision in the case of Miss A. Sundarambal Vs. Govt. of Goa, Daman & Diu (AIR 1988 SC 1700), though a school may be an industry, teachers do not fall within the definition of 'workmen'. And there are absolutely no pleadings that the defendants are statutory authorities/bodies and are governed statutory rules/regulations. Hence, none of the three exceptions avail to the plaintiff. Under such circumstances, when the plaintiff is terminated from private service which is purely of contractual nature, the Civil Court is barred from granting a declaration regarding the order of termination. In the case of SBI Vs. S.N. Goyal, [(2008) 8 SCC 92], it is held as follows:
23
"Re: Question (i) -- Enforcement of a contract of personal service "17. Where the relationship of master and servant is purely contractual, it is well settled that a contract of personal service is not specifically enforceable, having regard to the bar contained in Section 14 of the Specific Relief Act, 1963. Even if the termination of the contract of employment (by dismissal or otherwise) is found to be illegal or in breach, the remedy of the employee is only to seek damages and not specific performance. Courts will neither declare such termination to be a nullity nor declare that the contract of employment subsists nor grant the consequential relief of reinstatement. ...."
(Emphasis supplied)
25. Admittedly, the only relief sought for by the plaintiff in this case is for a bare declaration that the order of dismissal from service is illegal and void ab initio. There is no prayer for damages. Under the circumstances, as the only relief sought for cannot be 24 granted by the Civil Court, the suit of the plaintiff is not maintainable. The Civil Court lacks jurisdiction to entertain such a suit. Therefore the dismissal of the suit by the Trial Court and the appeal by the First Appellate Court are fully justified and are based upon a proper appreciation of the facts of the case and the law applicable thereto. The substantial question of law framed is answered against the plaintiff.
26. In view of the above findings, there is no merit in this appeal and the same is accordingly dismissed. No order as to costs.
SD/-
JUDGE BVK