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IN THE HIGH COURT OF BOMBAY
(J. N. Patel, Dr. D. Y. Chandrachud and Mrs. R. S. Dalvi, JJ.)
ST. ULAI HIGH SCHOOL and another - Appellants.
vs.
DEVENDRAPRASAD JAGANNATH SINGH and another - Respondents.
Second Appeal No. 533 of 2001 with Civil Appln. Nos. 1437 of 2003 and 1446 of 2006 Decided on 18-12-2006
Advocates Appeared
For appellants: C. U. Singh with C. K. Thomas
For respondent No.1: R. S. Apte with M. S. Lagu
For respondent No.2: A. A. Kumbhakoni, Associate Advocate General
Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 - Section 8(1) - Maharashtra Employees of Private Schools Rules, 1981, Rule 12 - School Tribunal - Constitution of - Object of - To provide expediting justice to employees of private schools governed by Act - To en sure security and stability of service - Statement of objects cannot override express provision of law - Constitution of Tribunal intended to sub-serve salutary object in public interest. - The object of establishing a Tribunal was to provide expeditious justice to the employees of educational institutions governed by the Act so as to ensure security and stability of service. The statement of objects and reasons cannot override the express provisions of a law enacted by the competent Legislature. The statement, however, is an important interpretative tool in providing to the Court, the reason for the enactment of the law, the deficiency in the existing provisions, the mischief that was sought to be remedied and the purposes that are sought to be achieved. The Court must lean in favour of a purposive interpretation.
Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 - Section 9 - Jurisdiction of Civil Courts - Exclusion of - Not readily inferred - In absence of any express exclusion, intent of Legislature must be examined with reference to right, created by legislation and scheme of Act.
Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 - Section 9 - Jurisdiction of Civil Court - Exclusion of - Not readily inferred - Absence of express exclusion - Intent of Legislature must be examined with reference to rights created by legislation - The remedies provided and scheme of Act. - The exclusion of the jurisdiction of a Civil Court is not readily inferred. Section 9 of the Code of Civil Procedure, 1908 provides that Courts shall have jurisdiction to bring all suits "excepting suits of which the cognizance is either expressly or impliedly barred". Where there is no express exclusion, the intent of the Legislature must be examined with reference to the rights created by the legislation, the remedies provided and the scheme of the Act, where the statute gives finality to the orders of a Special Tribunal the jurisdiction of the Civil Court is held to be excluded if there is an adequate remedy to do what the Civil Court would normally do in the suit.
Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 - Section 9 - M.E.P.S. Rules, 1981, Rule 12 - Inter se seniority - De-termination of Education Officer - Not final - Validity or correctness of said determination can be challenged before Tribunal in an appeal under Section 9 of Act - Rule 12 of MEPS Rules, a part of legislation.
Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 - Sections 9 and 11 - Appeal - Right of appeal - Full and complete, untrammelled by procedural or substantive limitations.
Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 - Sections 9 and 11 - Appeal - Against order of Management - Expression "employee in private school" - Warrant reading of a precondition of approval by Education Department - Plain and natural meaning of words used must be given effect by Court - Court cannot impose a condition which Legislature not imposed to circumscribe maintainability of an appeal before Tribunal - Such an exercise impermissible - Appeal maintainable at behest of employee in a private school. - Neither Section 9 nor the definitions which elaborate upon the contents of the expression "employee in a private school" warrant the reading of a precondition of approval by the Education Department. The Court must give effect to the plain and natural meaning of the words used by the Legislature consistent with the statutory definitions contained in the Act. It is no part of the function of the Court to impose a condition which the Legislature did not impose to circumscribe the maintainability of an appeal before the Tribunal. The imposition of a restriction on the jurisdiction of the School Tribunal is a legislative function and it would lie outside the province of the Court to curtail the ambit of the jurisdiction of the Tribunal. The Legislature created the Tribunal and vested it with jurisdiction in certain matters in an effort to safeguard security and stability of service to the class of employees covered therein. The salutary object which the Legislature had in mind would plainly be defeated if the Court were to read a condition which the Legislature did not prescribe for the maintainability of an appeal before the Tribunal. Such an exercise is impermissible.
Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 - Sections 9 and 11 - Appeal - Right of - Against order of dismissal/removal - Right is full and complete - Un-tramelled by procedural or substantive limitations - Tribunal under Section 11(2) of Act empowered to set aside order of management partially or wholly. - By virtue of the provisions of sub-section (2) of Section 11, the Tribunal is empowered to set aside the order of the management partially or wholly where it finds that an order of dismissal, removal "otherwise termination" or reduction is in contravention of any law including Rules made under the Act, contract conditions of service or if it is otherwise illegal or improper. The right of appeal is full and complete, untramelled by procedural or substantive limitations.
Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 - Section 11(2) - Constitution of India, Article 311 - Industrial Dispute Act, 1947, Sections 10 and 11 - Con- tract of personal service - Incapable of specific performance - Contract cannot be specifically enforced - Remedy of an aggrieved employee by wrongful act of termination must found in damages - Made to be meaningful and effective. - When the rights and obligations of parties to a contract of personal service lie in the realm of contract, there are under the common law recognised limitations upon the power of an employee to demand specific performance or the enforcement of an obligation under the contract. Ordinarily, a contract of personal service is incapable of specific performance and the remedy of an employee aggrieved by a wrongful act of termination must sound in damages.
DR. D. Y. CHANDRACHUD, J.:- The Reference to the Full Bench:
1.1 This reference before the Full Bench raises principally, the issue as to whether a suit is maintainable in a Civil Court in respect of matters set out in section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and Rule 12 of the Rules framed thereunder.
1.2 The first respondent was employed by the appellants as an Assistant Teacher on 2nd July, 1993 on a temporary basis and his appointment was renewed for terms of 11 months until 30th April, 1997. On 18th March, 1997, the services of the first respondent were dispensed with. The first respondent instituted a suit in the Court of the Civil Judge, Junior Division, Thane, seeking a declaration that the communication dated 18th March, 1997 is illegal and void; a decree and order to the effect that he is a permanent employee of the educational institution, entitled to the benefits available under the Act and the Rules framed thereunder. The suit was decreed by the Trial Court on 30th August, 1999. An appeal preferred by the management was dismissed by the Additional District Judge at Thane on 6th April, 2001. Both the Trial Judge and the Appellate Court rejected the challenge by the management to the jurisdiction of the Civil Court and held that while the School Tribunal has been constituted under the Act, there is no express bar ousting the jurisdiction of the Civil Court and consequently, both the Civil Court as well as the School Tribunal would have the jurisdiction in a matter relating to the termination of the services of an Assistant Teacher. When the Second Appeal came up before a learned Single Judge, the Court noted the judgments of this Court in Janata Janardhan Shikshan Sanstha vs. Vasant P. Satpute, 1986 Mh.L.J. 260 and Rasta Peth Education Society vs. Petkar Udhao Bhimashankar, 1994 Mh.L.J. 725 which took the view that the jurisdiction of the Civil Court to entertain a suit in respect of matters covered by section 9 of the Act was not ousted. The learned Single Judge noted that in a subsequent decision in Satyawadi Ganpatrao Pimple vs. Aruna Ganpatrao Narvade, 2000(2) Mh.L.J. 322 another learned Single Judge has taken the view that the jurisdiction of the Civil Court was impliedly barred by virtue of the provisions of section 9 of the Act. Noting the divergence of views in judgments of learned Single Judges of this Court, the Second Appeal was directed to be placed before a Division Bench for resolution of the following substantial question of law:
"That the civil suit under section 9 of the Code of Civil Procedure, 1908 in respect of matters set out in section 9 of the MEPS Act and Rule 12 thereof are impliedly barred."
The reference was accordingly placed before the Division Bench. By an order dated 13th April, 2004, the Division Bench observed that in order to answer the issue that is referred, it has become necessary to consider several judgments of Division Benches of this Court dealing with: (i) The necessity to seek approval of the Education Officer to the appointment of employees; (ii) The jurisdiction of the School Tribunal to entertain an appeal by an employee whose appointment is not approved; and (iii) The jurisdiction of the Tribunal to reopen a decision of the Education Officer on the question of seniority. The Division Bench found itself unable to agree with the view taken by two earlier Division Benches on the question of the necessity for approval of an appointment either as a condition to the validity of the appointment or for conferring jurisdiction on the Tribunal. The Division Bench noted that the view taken by Division Benches on the subject was not consistent which in turn, would require a reference to the Full Bench. By the directions of the Hon'ble the Chief Justice, the reference has been placed before us for consideration.
2. Issues Before The Court :
2.1 For convenience of exposition, it would be appropriate at the outset
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