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2008 DIGILAW 1589 (ALL)

PARASRAM TEWARI v. RAM BRIKSH SINGH.

2008-08-11

SUNIL AMBWANI

body2008
JUDGMENT Hon’ble Sunil Ambwani, J.—Heard Shri S.A. Gilani, learned Counsel for the appellant. Shri Jitendra Srivastava and Shri V.B. Khare appearing for the defendant are not present. 2. This Second Appeal arises out of judgment and decree dated 26.2.1979 passed by the District Judge, Deoria in Civil Appeal No. 186 of 1978, by which he allowed the appeal and while setting aside the judgment of trial Court in Original Suit No. 127 of 1975 decreed the suit for declaration that plaintiff was working as a Peon in Mani Nath Inter College, Nonapar, Tappa Bhatni, Pargana Salempur Majhauli, District Deoria and was entitled to get his salary, and for permanent injunction retraining the defendants from removing him from service. 3. The Second Appeal was dismissed by this Court on 16th September, 2004 on the ground that in view of the provisions of Section 14 (6) of the Specific Relief Act, 1963, the contract of personal service could not be enforced. This Court, in deciding the second appeal, relied upon the judgments in Executive Committee of Vaish Degree College, Shamli v. Laxmi Narain, AIR 1976 SC 888 ; Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke and others, AIR 1975 SC 2238 ; Nandganj Sihori Sugar Co. Ltd., Rae Bareilly and another v. Badri Nath Dixit and others, AIR 1991 SC 1523; Integrated Rural Development Agency v. Ram Pyare Pandey, JT 1995 (3) SC 119; Shiv Kumar Tiwari (Dead) by LRs. v. Jagat Narain Rai and others, (2001) 10 SCC 11 and Pearlite Liners Pvt. Ltd. v. Manorama Sirsi, 2004 (1) AWC 764 (SC) and noticed the well recognised principles applicable to the jurisdiction of the Civil Court in enforcing the contract of service. The Court also noticed the well known exceptions to the rule in Executive Committee of Vaish Degree College, Shamli (supra) as follows : “(1) Where the public servant is said to be removed from service in contravention of provisions of Article 311 of the Constitution of India? (2) Where a worker is sought to be reinstated being dismissed under the Industrial Law and was the statutory body acts in breach of the Statute? (3) Where a statutory body acts in breach or violation of the mandatory provisions of the Statutes?.” 4. (2) Where a worker is sought to be reinstated being dismissed under the Industrial Law and was the statutory body acts in breach of the Statute? (3) Where a statutory body acts in breach or violation of the mandatory provisions of the Statutes?.” 4. The Court found that the first and the second exceptions do not apply and the third exception also does not apply because there were no statutory rules governing the terms and conditions of employment. The second appeal was accordingly dismissed. 5. The appellant preferred a S.L.P. (C) No. 17140/2006 which was converted into Civil Appeal No. 5736 of 2007 after the grant of leave. The Supreme Court allowed the appeal with the following judgment : “Despite notice, none appears for the respondents. Leave granted. The short question involved in this case is whether the High Court was right in dismissing the second appeal against the order of the First Appellate Court which had dismissed the suit of the appellant. The appellant was the plaintiff in the said suit for permanent injunction and for declaration that he continues to be a peon in college. In the suit the appellant had prayed for above declaration on the ground that his service was governed by the provisions of the U.P. Intermediate Education Act, 1921 and the Rules framed thereunder. The plaintiff in the suit claimed that the said Rules were statutory. In our view, the High Court had erred in not deciding the afore-stated questions. In the circumstances, we set aside the impugned judgment of the High Court. We request the High Court to dispose of the matter in accordance with law and particularly, while doing so, it may decide the question of law mentioned hereinabove. Appeal is, accordingly, allowed. No order as to costs. Sd/- New Delhi, S.H. Kapadia, J. Sd/- December 07, 2007.” B. Sudershan Reddy, J. 6. The records were received back and the matter was listed on 4.2.2008. The Court summoned the lower Court records and directed the matter to be listed for final hearing. After the receipt of the record, the matter was next listed on 9.7.2008, which was heard and the judgment was reserved. 7. The records were received back and the matter was listed on 4.2.2008. The Court summoned the lower Court records and directed the matter to be listed for final hearing. After the receipt of the record, the matter was next listed on 9.7.2008, which was heard and the judgment was reserved. 7. The Civil Appeal was allowed by the Supreme Court on the submission that the appellant’s service was governed by the provisions of U.P. Intermediate Education Act, 1921, and the rules framed thereunder, and that the High Court did not consider the provisions of the Statutes regulating appellants service, which will bring his case within the third exception namely that the statutory body has acted in breach or violation of the mandatory provisions of the Statutes. 8. The U.P. Intermediate Education Act, 1921 (in short the Act) provides for establishment of a Board for regulating and supervising the system of High School and Intermediate Education in U.P. and to prescribe courses thereof. The Act was amended from time to time. The conditions of service of principals, headmasters and teachers were to be regulated by the provisions of Section 16-G, as introduced by the amending Act of 1958 w.e.f. February 18, 1959. It was confined in its application to principals, headmasters and teachers. Nothing was provided therein for Class III and class-IV employees. Section 16-G was replaced by U.P. Act No. XXVI of 1975. With its amendment and replacement it was made applicable to the services of head of institutions, teachers and also other employees and provided in sub-section (1) that every person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by regulations, and that any agreement between the management and such employee in so far as it is inconsistent with the provisions of the Act or with the regulations shall be void. Sub-section (2) provided that the regulation may provide for a period of probation, the conditions of confirmation, promotion and punishment including suspension, pending or in contemplation of enquiry or during the pendency of investigation enquiry or trial in any criminal case for an offence involving moral turpitude and the emoluments for the period of suspension and termination of services with notice, scales of pay and payment of salaries, transfer of service, grant of leave and provident fund and other benefits; and maintenance of records of works and service. Sub-section (3) provided for prior approval in writing of the Inspector in case of discharge or removal or dismissal from service or reduction in rank or in diminution or even service of notice of termination of the principals, headmasters and teachers and for appeal in clause (c) of sub-section (3). Sub-section (5) provided for regulation of suspension which is to be reported to the Inspector within thirty days and other provisions. 9. The regulations, with regard to conditions of service of Class-Ill and Class-IV employees working in the recognised institutions, are provided in Chapter III of the regulations made under the Act. Regulation-II providing for minimum educational qualifications for appointment and promotion was substituted by notification dated 27.2.1978 and was further amended on 4.4.1979. By the same notification dated 27.2.1978 the age of retirement of teachers and employees was fixed in Regulation XXI. It also provided for right to resign under Regulation XXIX and for punishment, enquiry and suspension for all the employees including transferred employees in Regulation XXXI. The enquiry could be conducted in Regulation XXXV and the provisions for reducing the proposed action in the form of definite charge, disciplinary enquiry, right to adduce oral evidence and cross-examination was added in Regulation XXXVI. 10. The services of class-IV employees, which were earlier in the complete control of the principals, thus came to be regulated by the statutory regulations for the first time after amendment of Section 16-G of the Act by U.P. Act No. XXVI of 1975. The regulations in Chapter III were made by amending the regulations vide Notification No. Ma-8372-15-(7)-12(103)-77 dated 27.2.1978. 11. In the present case, the plaintiff-Parasram Tewari was appointed as a peon w.e.f. July, 1973 and that it was alleged that his appointment was approved by the District Inspector of Schools, Deoria. According to plaint allegations the defendant was not paying him salary and was also threatening to remove him, on which he filed Original Suit No. 127/1975. In the written statement, the plaintiffs appointment as Farm Peon or on any other post was denied and thus according to defendants the question of removal did not arise. It was also denied that the college had requested the District Inspector of Schools for creation of a post. In the written statement, the plaintiffs appointment as Farm Peon or on any other post was denied and thus according to defendants the question of removal did not arise. It was also denied that the college had requested the District Inspector of Schools for creation of a post. The trial Court observed that Section 9 of the Act provides that no post could be created except with the previous approval of the Director, or such other officers to be empowered in this behalf by the Director. The trial Court, after examining the documents and assessing the oral evidence, held that the plaintiff was appointed as a Form Peon in July 1973 in the college, for which the post was created by the District Inspector of Schools on 30.3.1974 and thus he was entitled to the relief of declaration and injunction. 12. The appellate Court found that the suit was filed only against the Principal and Manager, by name. The Committee of Management was not impleaded and that since the contract of service could not be enforced in the absence of any statutory regulations, the relief for declaration and injunction could not be granted. The appellate Court then proceeded to hold that the scheme of administration, under Section 16A of the Act by no stretch of imagination, be regarded as statutory body and therefore the third exception in Executive Committee of U.P. State Warehousing Corporation Lucknow v. Chandra Kiran Tyagi, AIR 1970 SC 1244 was not applicable and allowed the appeal. 13. The discussion would show that the findings, that the plaintiff was appointed in July 1973, and that his services were approved by the District Inspector of Schools on 30.3.1974, could not have entitled the plaintiff-respondent to the relief of declaration and injunction as there was no statutory regulations enacted and applicable on the day when the suit was filed. The cause of action to grant relief was available to the plaintiff on the day when the Original Suit No. 127/1975 was filed on 11.2.1975. On that day he was not in employment and was not getting salary. There were no statutory regulations governing his service on that date which could have protected his employment and made him entitled to the grant of declaration of injunction. 14. On that day he was not in employment and was not getting salary. There were no statutory regulations governing his service on that date which could have protected his employment and made him entitled to the grant of declaration of injunction. 14. This Court in its judgment dated 16.9.2004, had observed : “The first and the second exceptions do not apply and the third exception also does not apply, because there were no statutory rules governing the terms and conditions of employment”. The regulations regulating the service conditions of Class IV employees in private recognised and educational institutions were made for the first time by Notification dated 27.2.1978. 15. The second appeal does not raise any substantial question of law to be considered and decided by this Court, and is consequently dismissed. ————