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2007 DIGILAW 190 (BOM)

Nutan Vidarbha Shikshan Mandal, Amravati v. Ramakanth Mahadeorao Khot

2007-02-13

C.L.PANGARKAR

body2007
JUDGMENT:- This is a revision by defendant. Parties hereinafter shall be referred to as plaintiff and defendant. 2. Facts giving rise to this revision are as under : Plaintiff is an employee of defendant No.1 society. He was working at the relevant time as a clerk. 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 Co-operative 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 Co-operative 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 he 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. 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 9-A 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 this revision has been preferred. 6. I have heard learned counsel for the petitioner. None appears for the respondent. 7. The learned counsel for the applicant-defendant contended that the plaintiff is an employee of private school and as such he has remedy only under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act 1977. He submitted that the Act is self sufficient and as such the jurisdiction of the civil court is ousted and plaintiff must avail of the remedies and forum provided under the Act. He particularly invited my attention to Section 9 of the Act. Section ~ of the Act reads thus: "9. Right of appeal to Tribunal to employees of private school: (1) Notwithstanding anything contained in any law of contract for the time being in force, {any employee in a private school-, (a) who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank, by the order passed by the Management; or (b) who is superseded by the Management while making an appointment to any post by promotion. and who is aggrieved, shall have a right of appeal and may appeal against any such order or supersession to the Tribunal constituted under section 8.} Provided that, no such appeal shall lie to the Tribunal in any case where the matter has already been decided by a Court of competent jurisdiction or is pending before such Court, on the appointed date of where the order of dismissal, removal, otherwise termination of service or reduction in rank was passed by the Management in any time before the 1st July, 1976. (2)Such appeal shall be made by the employee to the Tribunal, within thirty days from the date of receipt by him of the order of dismissal, removal, otherwise termination of service or reduction in rank, as the case may be : Provided that, where such order was made before the appointed date such appeal may be made within sixty days from the said date. (3) Notwithstanding anything contained in Sub-section (2) the Tribunal may entertain an appeal made to it after the expiry of the said period of thirty or sixty days, as the case may be, if it is satisfied that the appellant has sufficient cause for not preferring the appeal within that period. (4) Every appeal shall be accompanied by a fee of (Five hundred rupees) which shall not be refunded and shall be credited to the Consolidated Fund of the State." He submitted that the appeal is provided under Section 9 of the Act to School Tribunal and that remedy should have been availed of. It was also contended that the lower Court relying mainly on decision reported in Rasta Peth Education Society, Pune Vs. Pethkar Udhav Bhimashanker, 1994 Maharashtra Law Journal 725, held that civil court has jurisdiction. It was also submitted than the decision in Rasta Peth case is no more a good law in view of the recent decision of Full Bench reported in St. Ulai High School and another Vs. Devendraprasad Jagannath Singh and another, 2007(1) Maharashtra Law Journal 597: [2007(2) ALL MR 1 (F.B.)]. This Court in Ulai High School case overruled the decision in Rasta Peth case while confirmed the decision in Satyawadi Ganpatrao Pimple and others Vs. Aruna Ganpatrao Narwade and another, 2000(2) Maharashtra Law Journal 322 : [2000(2) ALL MR 305]. Devendraprasad Jagannath Singh and another, 2007(1) Maharashtra Law Journal 597: [2007(2) ALL MR 1 (F.B.)]. This Court in Ulai High School case overruled the decision in Rasta Peth case while confirmed the decision in Satyawadi Ganpatrao Pimple and others Vs. Aruna Ganpatrao Narwade and another, 2000(2) Maharashtra Law Journal 322 : [2000(2) ALL MR 305]. Shri. Deshpande the learned counsel, therefore, wanted me to set aside the order on simple ground that civil court has no jurisdiction and reliance by the lower court on the decision in Rasta Peth case was wrong. I am unable to agree to the submission for the following reasons: The settled proposition of law while deciding the question of jurisdiction of civil court is that the ouster of jurisdiction of civil court can never be readily inferred. The jurisdiction of civil court can be ousted either by express bar or implied bar. Even when there may be an express bar the civil court may be required to take cognizance of dispute of civil nature, and for that it would be necessary to examine the scheme of the Act and find out whether the Act takes care of remedies of forum. If the remedy to all disputes is available and for that a special forum is created, civil court's jurisdiction is barred, and civil court shall not take cognizance but if a remedy or forum is not available under the Act inspite of such bar civil Court will assume jurisdiction. There may be cases where there may not be express bar in the statute but if the remedies and forums are available the jurisdiction of the civil court would be deemed to be impliedly barred. 8. To my mind none of the above rulings has any bearing on the case in hand. Section 9 of the Act spells out the cases in which Tribunal is authorised to take cognizance. This Section has been reproduced above. The jurisdiction of the Tribunal is restricted with regard to dismissal, removal termination reduction in rank and supersession at the time of promotion. If there is a cause of action in favour of any school employee with regard to above he has to approach the School Tribunal alone since a proper remedy and forum has been provided under the Act. The jurisdiction of the Tribunal is restricted with regard to dismissal, removal termination reduction in rank and supersession at the time of promotion. If there is a cause of action in favour of any school employee with regard to above he has to approach the School Tribunal alone since a proper remedy and forum has been provided under the Act. Remedy is in form of appeal under Section 9 and the forum is in the form of School Tribunal under Section 8. Present case does not fall in any of the categories as mentioned in Section 9. What is sought to be done by the management in this case is to recover the loss caused to the society due to the negligence of the plaintiff. The defendant is seeking to recover the amount of interest which it was required to pay to the bank due to the plaintiffs negligence. Such recovery of amount does not and cannot fall under any of the Clauses of Section 9 of the Act. Although Section 12 bars a civil suit it bars only those suits in respect of which the Tribunal can take cognizance. There is no blanket bar. There is a bar in respect of disputes as mentioned in Section 9. We have seen that this case cannot fall under the scope of Section 9 since it does not relate to dismissal, removal termination, reduction in rank or supersession at the time of promotion. Since Section 9 specifically spells out the nature of dispute of which cognizance can be taken by the Tribunal any dispute not covered by Section 9 cannot be tried and decided by the Tribunal under the Act, hence the Tribunal in fact does not and cannot have jurisdiction to entertain the suit such as in this case. It is, therefore, the civil court alone which can take cognizance of a suit of the nature such as deduction of the money from the salary for the loss that had occasioned to the society. The order as passed by the lower court, therefore, needs to be confirmed though for different reasons. Revision is therefore dismissed. Parties are left to bear then own costs. Revision dismissed.