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1996 DIGILAW 1294 (RAJ)

Suresh Chand Garg v. Shri Sanatan Dharm Uchha Madhyamic Vidhyalaya

1996-11-19

SHIV KUMAR SHARMA

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Honble SHARMA, J. – The function of the courts is to apply the law as it stands. May be the court notices the anomalies. But it is not for the court to rewrite the law even though the court considers the provisions as they stand to be unreasonable. (2). In the light of above settled legal position. I proceed to examine the pro- visions contained in the Rajasthan Non-Government Educational Institutions Act, 1989 (Hereinafter referred to as the Act). The Act has been enacted to provide for better organisation and development of education in the Non-Government educational institution in the State of Rajasthan. Section 18 of the Act is about removal dismissal or reduction in rank of employee. It provides that : ``18. Removal, dismissal or reduction in rank of employee. – Subject to any rules that may be made in this behalf, no employee of a recognised institution shall removed, dismissed or reduced in rank unless he has been given by the management a reasonable opportunity of being heard against the action proposed to be taken : Provided that no final order in this regard shall be passed unless prior approval of the Director of Education or an officer authorised by him in this behalf has been; Provided further that this section shall not apply, – (i) to a person who is dismissed or removed on the ground of conduct which led to his conviction on a criminal charge, or (ii) where it is not practicable or expedient to give that employee an opportunity of showing cause, the consent of Director of Education has been obtained in writing before the action is taken, or (iii) where the Managing Committee is of unanimous opinion that the services of an employee can not be continued without prejudice to the interest of the institution the services of such employee are terminated after giving him six months notice or salary in lieu thereof and the consent of the Director of Education is obtained in writing. Persons aggrieved by the orders passed under section 18 of the Act may prefer appeal under section 19 before the Tribunal. Persons aggrieved by the orders passed under section 18 of the Act may prefer appeal under section 19 before the Tribunal. Section 19 provides that : ``19 Appeal to the Tribunal (1) If Managing Committee is aggrieved from the order of refusal made by the Director of Education under section 18, it may prefer an appeal to the Tribunal constituted under section 22 within ninety days of the date of receipt of such order. (2) An employee aggrieved from an order of the Managing Committee made under section 18 may prefer an appeal to the said Tribunal within ninety days of the date of receipt of such order. If there is any dispute between the many event of the institution and any of the its employee with respect of conditions of service, an application may be made to the tribunal under section 21 of the Act which provides that– ``21. Application to the Tribunal (1) Where there is any dispute between the management of a recognised institution and any of its em- ployee with respect to the conditions of service, the management of the employee may make an application in the prescribed manner to the Tribunal and the decision of the Tribunal thereon shall be final. (2) Any dispute of the nature preferred to in sub-section (1) and any appeal of the nature referred to in section 19, pending before the State Government or any officer of the State Government immediately before the commencement of this Act, shall, as soon as may be after such commencement; be transferred to the Tribunal for its decision. Section 22 of the Act contains provisions relating to constitution of the Tribunal. It provides that : ``Constitution of the Tribunal. – (1) There shall be constituted by the State Government, by notification, one or more Tribunals for the purposes of this Act. (2) The Tribunal shall have jurisdiction over the whole of the State or such area as may be specified in the notification. (3) The State government shall appoint a Judicial Officer of the rank of a District Judge to constitute the Tribunal. Functions of the Tribunal have been enumerated in section 23 of the Act which provides that – ``23. Functions of the Tribunal. – The Tribunal shall entertain, hear and decide appeals preferred under section 19 and the disputes referred to in Section 21. Functions of the Tribunal have been enumerated in section 23 of the Act which provides that – ``23. Functions of the Tribunal. – The Tribunal shall entertain, hear and decide appeals preferred under section 19 and the disputes referred to in Section 21. Section 25 of the Act contains the provision pertaining to powers of the Tribunal. It provides :– ``25. Powers of the Tribunal – (1) The Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 while trying a civil suit with respect to the following ma- tters, namely :– (a) enforcing the attendance of any person and examining him on oath; (b) compelling the production of documents and material objects; (c) issuing commission for the examination of witnesses; and (d) such other matters as may be prescribed. (2) Every proceeding before the Tribunal shall be deemed to be a judicial proceeding with the meanings of section 193 and 228 of the Indian Penal Code, 1860. Section 26 of the Act provides that the decision of the Tribunal shall be final and no suit or other proceeding shall lie in any civil court with respect to matters decided by it. According to section 27 of the Act, no civil court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Tribunal. Section 41 of the Act provides that notwithstanding anything con- tained in the Code of Civil Procedure 1908 or in any other law for the time being in force, no court shall grant any temporary injunction or make any interim order restraining any proceedings which are being or about to be taken under this Act. (3). The short question which now arises for consideration is as to whether the provisions of the Act are applicable to the suit pending in the civil court on the date of promulgation of the Act? (4). The facts, out of which the above legal question emerged, are that non petitioner No.1, a recognised non-government educational institution, terminated the services of the petitioner, who was appointed as teacher grade II. The order of termination was challenged by the petitioner by way of filing a civil suit in the year 1986. (4). The facts, out of which the above legal question emerged, are that non petitioner No.1, a recognised non-government educational institution, terminated the services of the petitioner, who was appointed as teacher grade II. The order of termination was challenged by the petitioner by way of filing a civil suit in the year 1986. After the Act came into force on 1.1.1993, the petitioner submitted two applications on 25.5.1994 and 31.8.1994 before the court below in which the civil suit is pending. In one of them the petitioner sought permission to allow him to withdraw the suit with liberty to prefer appeal before the Tribunal situated at Jaipur and in the other application it was requested that the suit may be transferred to the Tribunal in view of the provisions contained in the Act. (5). The court below dismissed both the applications by a common order. The said order has been assailed in this revision petition. (6). I have given my anxious consideration to the arguments advanced before me by the learned counsel for the parties and carefully perused the impugned order. (7). It has been contended by Mr. D.P. Sharma, the learned counsel for the petitioner that the provisions of the Act have been mis-interpreted by the court below. Even permission to withdraw the suit was declined. It was the mandatory duty of the court below to transfer the civil suit to the Tribunal under the provisions contained in section 21(2) of the Act. The court below also did not consider the object and the scheme of the Act which barred the civil courts under section 27 of the Act to settle, decide or deal with any question by which or under the Act required to be settled, decided or dealt with by the Tribunal. (8). On the other hand Mr. C.S. Goyal, the learned counsel for the non-petitioner supported the impugned order. Sum and substance of the arguments advanced by Mr. C.S. Goyal, the learned counsel is that under sub-section(2) of section 21 of the Act, only reference of pending disputes before the State Government or any officer of the State Government has been made which goes to show that this section does not apply to the suits pending before the civil courts immediately before the commencement of the Act. C.S. Goyal, the learned counsel is that under sub-section(2) of section 21 of the Act, only reference of pending disputes before the State Government or any officer of the State Government has been made which goes to show that this section does not apply to the suits pending before the civil courts immediately before the commencement of the Act. If the intention of the legislature would have been to apply this section to the pending civil suit, the section would have been drafted in the manner so as to include pending disputes before the civil courts also. (9). My attention has been drawn towards section 6(1) of the Rajasthan General Clauses Act 1955 (hereinafter referred to as the Act of 1955) which provides as under :– ``6. Effect of Repeal (1) Where any Rajasthan Law repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears the repeal shall not– (a) revive anything not in force or existing at the time at which the repeals takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed, or (d) affect any fine, penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed, or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, fine, penalty, forfeiture or punishment as aforesaid, and any such investigation legal proceedings or remedy may be instituted, continued or enforced, and any such fine penalty forfeiture or punishmenty may be imposed, as if the repealing law had not been passed. A careful scrutiny of section 6(1) (e) of the Act of 1955 reveals that unless a different intention appears the repeal shall not affect the pending legal proceedings and the said proceedings shall continue in the same manner as if the repealing law had not been passed. (10). It has also been contended that had the legislature intended to apply the provisions of the Act to the pending cases before the civil courts it would have in- troduced an independent section in the Act as has been done by the legislature while enacting the Rajasthan Civil Services (Service Matters Appellate Tribunal) Act, 1976. (10). It has also been contended that had the legislature intended to apply the provisions of the Act to the pending cases before the civil courts it would have in- troduced an independent section in the Act as has been done by the legislature while enacting the Rajasthan Civil Services (Service Matters Appellate Tribunal) Act, 1976. Section 11 of the said Act provides that notwithstanding anything contained in this Act, all cases in respect of a service matter pending in any civil court on the date on which this Act comes into force, shall be continued to be heard and decided by that court as if this Act had not been passed. (11). In order to appreciate the provisions contained in section 6(1) of the Act of 1955 it has to be seen what is the intention of the legislature in enacting the provisions of the Act of 1989. As earlier stated the Act has been enacted to provide for better organisation and development of education in the Non-Government edu- cational institution in the State of Rajasthan. As per section 27 of the Act, the civil courts have no jurisdiction to settle, decide or deal with any question which is by or under the Act required to be settled, decided or dealt with by the Tribunal. The civil courts have also been barred to grant interim injunction under Section 41 of the Act. The Tribunal has been constituted under section 22 of the Act consisting a Judicial Officer of the rank of a District Judge and the Tribunal has to entertain, hear and decide appeals preferred under section 19 and the disputes referred to in section 21 of the Act. Section 21 of the Act provides that where there is any dispute between the management of a recognised institution and any of its employee with respect to the condition of service, the management or the employee may make an application in the prescribed manner to the Tribunal and the decision of the Tribunal there on shall be final. Any dispute of such nature pending before the State Government or any officer of the State Government immediately before the com- mencement of the Act shall be transferred before the Tribunal for its decision. Act of terminating service of the petition by Non-petitioner No.1 comes in the purview of the `dispute referred in section 21 of the Act of 1989. Any dispute of such nature pending before the State Government or any officer of the State Government immediately before the com- mencement of the Act shall be transferred before the Tribunal for its decision. Act of terminating service of the petition by Non-petitioner No.1 comes in the purview of the `dispute referred in section 21 of the Act of 1989. The said dispute was raised by way of filing civil suit by the petitioner in the year 1986. After promulgation of the Act i.e. after 1.1.1993 civil court had been unarmed and cannot issue temporary injunction or make any interim order restraining any proceedings which are being or about to be taken under the Act. This restriction has been introduced by enacting section 41 of the Act. A careful reading of section 27 of the Act reveals that a civil court has no jurisdiction to decide even a suit pending before it. This section provides that no civil court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Tribunal. Questions pertaining to the conditions of service of the employee of the recognized non-government educational institution are required to be settled, decided or dealt with by the Tribunal only and the civil court jurisdiction to settle, decide and deal with such questions, has been barred. The word `shall used in section 27 of the Act, shows that civil court has no jurisdiction to decide even the suit pending before it. (12). The provisions of section 6(1) of the Act of 1955 are not applicable in this case. The Act can not be termed as `repealing law as it has not repealed any enactment. Further the provisions contained in various sections of the Act, as dis- cussed hereinabove, go to show that the Act is applicable to the pending legal proceedings. (13). The argument about the intention of legislature in connection of framing independent section regarding pending cases before the civil courts, is also devoid of any force. On the contrary it helps the petitioner. The legislature intended that all service matters pending before the civil courts shall be continued to be heard and decided by the civil courts, and therefore enacted section 11 of the Rajasthan Civil Services (Service Matters Appellate Tribunal) Act, 1976. On the contrary it helps the petitioner. The legislature intended that all service matters pending before the civil courts shall be continued to be heard and decided by the civil courts, and therefore enacted section 11 of the Rajasthan Civil Services (Service Matters Appellate Tribunal) Act, 1976. No such independent section has been incorporated by the framers of the Act of 1989 which only suggests that civil suits raising questions pertaining to the conditions of service of the employees of the institutions, pending before the civil courts shall not be conti- nued to be heard and decided by the civil courts. (14). The paramount object in statutory interpretation is to discover what the legislature intended. This intention is primarily to be ascertained from the text of the enactment in question. That does not mean the text is to be construed merely as a piece of prose, without reference to its nature or purpose. A statute is neither a literary text no a divine revelation. ``Words are certainly not crystals, transparent and unchanged as Mr. Justice Holmer has wisely and properly warned in Towne vs. Eisher (1). Learned Hand J. was equally empathic when he said; ``statutes should be construed not as theorenis of Euclid, but with some imagination of the purpose which lie behind them. Lenigh Valley Coal Co. vs. Yensavage (2), U.O.I. vs. Filip Tiagbo De Gama of Vedam Vasco De Gama (3). It is a well settled principle of interpretation of statute contains stringent provisions they must be literally and strictly construed so as to promote the object of the Act-Madan Mohan vs. K. Chandrasekhara (4). (15). Upshot of the above discussion is that section 27 of the Act is applicable to all civil suits pending before the civil courts at the time of promulgation of the Act, i.e. on 1.1.1993. Thus, the court below has committed illegality in exercise of jurisdiction vested in it in rejecting the applications of the petitioner. (16). Consequently, I allow this revision petition and set aside the impugned order dated 30.9.94. While accepting the applications of the petitioner I direct that the civil suit bearing No. 5/91 pending before the court below shall be transferred to the Tribunal forthwith and the Tribunal shall decide it in accordance with the provisions contained in sub-section (2) of Section 21 of the Act of 1989. No costs.