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2007 Supreme(Bom) 1335
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR.
Nutan Vidarbha Shikshan Mandal - APPLICANTS.
VERSUS
Ramakanth Mahadeorao Khot RESPONDENT.
MISC. CIVIL APPLICATION NO. 395 OF 2007
Decided on: 14th SEPTEMBER 2007.
Advocate Appeared
Shri. S. P. Deshpande, Counsel for the applicants.
Shri. R. K. Deshpande, Counsel for the respondent.
Headnote:Civil Procedure Code, 1908 - Section 9-A, Order VII, Rule 11(a)-Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, Sections 9 and 12-Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, Rule 29-Suit filed for recovery of amounts by a clerk of educational society-Due to mistake of bank-Question arises as to jurisdiction of Civil Court-Civil Court held that it had jurisdiction-Revision against that-Held, that it had jurisdiction to decide it.-Review application has been filed by the applicant in Civil Revision. A few facts may be stated thus :
Applicant is a defendant in civil suit instituted by the non applicant against it seeking an injunction restraining it from recovering an amount from his salary. On 5.10.96 the plaintiff went to the Co-operative Bank to make an enquiry with regard to the balance in account. The amount was in excess of what the plaintiff expected and, therefore, he inquired with the clerk whether the non salary grant is credited to the said account and he was told that the grant has been received from the Government. The plaintiff, therefore, brought this fact to the notice of the Head Master Shri P.N. Borkar. Upon directions of Shri Borkar the plaintiff prepared certain cheques in the name of the creditors of the school. Subsequently it was found that the said grant of Rs. 1,00,000/- was received for the year 1996-97 and he again made a request to the Bank Manager to verify the accounts and it was told that sum of Rs. 1,00,000/- has been wrongly credited by the bank in the account of defendant No. 2 towards non salary grant. This was again brought to the notice of defendant No. 2. It is contended that this had happened only due to the negligence on the part of the bank employees and they refused to correct the account. It is also the contention that the bank, therefore, sought to recover from the defendant No. 1 society a sum of Rs. 28,767/- towards the interest on the amount used by the defendant society.
The plaintiff thereafter received a notice from the defendant No. 1 seeking his explanation as to why an amount of Rs. 28,767/- be not recovered from him and the Head Master Shri Borkar. The explanation of plaintiff was rejected and the society decided to deduct the amount from the salary of the plaintiff, hence the plaintiff has instituted this suit for declaration that plaintiff is not liable to pay sum of Rs. 14,383/- and for injunction prohibiting the defendant from deducting the same from the salary.
Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 - Sections 9 and 12 - MEPSR Rules, 1981 - Rule 29 - Dispute between School Authorities and employee - Imposition of minor penalty against employee - Remedy against available to employee under Rule 29 of Rules - Suit under Section 9 of CPC not maintainable in Civil Court. - A person against whom a minor penalty is imposed has a remedy available and a forum also is available person aggrieved by imposition of minor penalty can prefer an appeal before a Deputy Director of Education. Thus, where both remedy by way of appeal and a forum has been provided the Civil Court cannot assume jurisdiction as it can be said that its jurisdiction is impliedly barred. Had no remedy been available the Civil Court would have assumed jurisdiction. The counsel had cited a ruling reported in State of Andhra Pradesh v. Manjeti Laxmi Kantha Rao (D) by LRs. and others, 2000 Supreme Appeals Reporter (Civil) 478 : 2000 (3) All MR 664 (SC). In this case Supreme Court has observed that normal rule of law is that Civil Courts have jurisdiction to try all suits of civil nature except those of which cognizance has either expressly or impliedly excluded.
ORAL JUDGMENT:
1. This is an application for review of the judgment delivered in Civil Revision Application No. 930 of 2000. 2. Review application has been filed by the applicant in Civil Revision. A few facts may be stated thus: Applicant is a defendant in civil suit instituted by the non applicant against it seeking an injunction restraining it from recovering an amount from his salary. The applicant is a Society which runs a school while the non applicant is a Clerk working in the said school. It was the duty of the said employee to take care of the grants received from the Government, to draw the amount for running the school and the society. Defendant No.2 is the Head Master of the said school. The school receives two grants namely salary grant and non salary grant. For the said two grants two separate accounts are maintained in the bank. Those accounts have been opened in Amravati District Central Cooperative Bank. It is contended by the plaintiff that many a times no intimation about the disbursement of the non salary grant is given to the society and the amount is directly credited in the account. On 05.10.96 the plaintiff went to the Cooperative Bank to make an enquiry with regard to the balance in account. He was told that there was a balance of amount of Rs.1,13,319.50 Ps. The amount was in excess of what the plaintiff expected and, therefore, he inquired with the clerk whether the non salary grant is credited to the said account and he was told that the grant has been received from the Government. The plaintiff, therefore, brought this fact to the notice of the Head Master Shri P. N. Borkar. Upon directions of Shri Borkar the plaintiff prepared certain cheques in the name of the creditors of the school. Subsequently it was found that the said grant of Rs. 1,00,000/- was received for the year 1996-97 and he again made a request to the Bank Manager to verify the accounts and it was told that sum of Rs. 1,00,000/- has been wrongly credited by the bank in the account of defendant No.2 towards non salary grant. This was again brought to the notice of defendant No. 2. It is contended that this had happened only due to the negligence on the part of the bank employees and they refused to correct the account. It is also the contention that the bank, therefore, sought to recover from the defendant No.1 society a sum of Rs.28,767/- towards the interest on the amount used by the defendant society.
3. The plaintiff thereafter received a notice from the defendant No.1 seeking his explanation as to why an amount of Rs.28,767/- be not recovered from him and the Head Master Shri Borkar. The explanation of plaintiff was rejected and the society decided to deduct the amount from the salary of the plaintiff, hence the plaintiff has instituted this suit for declaration that plaintiff is not liable to pay sum of Rs.14,383/- and for injunction prohibiting the defendant from deducting the same from the salary.
4. Defendant No.1 Society filed reply to the injunction application and also filed application under Section 9A for trying the issue of jurisdiction as preliminary issue.
5. Trial Court decided to try issue of jurisdiction as preliminary issue. Trial Court held that the civil court does have jurisdiction to try the suit and being aggrieved by that finding a revision was preferred.
6. After the revision was heard it was held that the civil Court did have jurisdiction to try the suit in view of the provisions contained in Section 9 and 12 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act 1977 (hereinafter referred to as 5 the Act). The applicant submits that the provisions of Section 9 as well as 12 were not at all applicable in the present matter and the provisions contained in Rule 29 of the Rules framed under the Act was applicable and, therefore, the judgment rendered by this Court is patently wrong.
7. I have heard Shri S. P. Deshpande for the applicant and Shri R. K. Deshpand
