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2011 DIGILAW 606 (RAJ)

Managing Committee, Arya Kanya Madhyamik Vidhyalaya, Bharatpur v. Kumari Prabha Gupta

2011-03-22

ARUN MISHRA, MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This writ petition has been filed by Managing Committee, Arya Kanya Madhyamik Vidhyalaya, Bharatpur inter alia challenging judgment of Rajasthan Non-Government Educational Tribunal dated 2.8.2002 with the prayer that the same be quashed and set aside and it be declared that this order is incapable of execution and the execution proceedings pending in the Court of Civil Judge (Junior Division), Bharatpur, being nonest, be quashed and set aside. Further prayer has been made that Section 27A of the Rajasthan Non-Government Educational Institutions Act, 1989 be declared ultra vires of the constitution of India for the reason that no assent of the President of India was obtained therefore. 2. Dr. P.C. Jain, learned counsel for the petitioner has argued that the Court of Civil Judge, Junior Division is not competent to entertain execution petition for implementation of judgment of the Tribunal dated 2.8.2002. It was argued that according to provisions of Section 19 and 21 of the Rajasthan Civil Court Ordinance, 1950 the said Court is competent to decide civil suit upto valuation of Rs. 25,000/- and therefore its power to entertain execution petition would also be confined to that limit. Section 27A being repugnant to Section 19 of the Rajasthan civil Courts Ordinance is liable to be declared ultra vires of the Constitution. It is argued that the assent of the President of India was obtained at the time when the Act was promulgated by the State. However, no assent has been obtained for the newly inserted Section 27A, which empowers the lowest civil Court having territory jurisdiction over the local area in which the respondents, against whom the order has made, ordinarily resides or carries on business etc. The ultimate direction issued in the impugned order dated 2.8.2002 passed by the Tribunal is absolutely vague, unambiguous and unclear. Those directions are therefore incapable of being executed. In fact, the learned executing Court itself was unable to apprehend the nature of such directions, therefore, it requisitioned the opinion by his letter dated 9.2.2007 shown his inability to provide any guidance, thereafter, the matter was further sent to the District Education Officer, who thereupon by letter dated 15.2.2007 gave his opinion. It is settled law that an executing Court has to execute a decree as it is and it cannot go behind the decree. It is settled law that an executing Court has to execute a decree as it is and it cannot go behind the decree. On this proposition of law, learned counsel cited judgment of Supreme Court in Vedic Girls Senior Secondary School Arya Samaj Mandir Jhajjar vs. Smt. Rajwanti & Ors. (2007(2) WLC (SC) (Raj.) 6. 3. Dr. P.C. Jain, learned counsel further argued that originally the respondent filed execution application on 16.3.2004 claiming payment of Rs. 3,08,804/- only. Thereafter, she filed another application on 16.3.2004 claiming payment of Rs. 3,58,750/-. Then by application Annexure-6 dated 16.10.2006, she claimed payment of Rs. 6,41,772/- and thereafter she again raised the amount to Rs. 9 lacs by filing yet another application. Learned counsel submitted that all this happened because the order passed by the Tribunal was vague and unspecific. Learned counsel in support of this argument cited judgment of Supreme Court in M/s. TCI Finance Ltd. vs. Calcutta Medical Centre Ltd. & Anr. ( AIR 2005 SC 3654 ). 4. Dr. P.C. Jain, learned counsel for the petitioner further argued that respondent was entitled to leave encashment of only 53 days as against 300 days claimed by her. In this connection, learned counsel referred to the photo copy of the service book of the respondent wherein her leave account was maintained. The photo copy of the service book is filed on record by the petitioner with an additional affidavit. 5. Dr. P.C. Jain, learned counsel cited provisions of Section 9 of the CPC to argue that courts shall have jurisdiction to try all suits of a civil nature excepting suits of which cognizance is either expressly or impliedly barred. 6. Dr. P.C. Jain, learned counsel for the petitioner referred to entry 65 of List-II of Schedule-& to the Constitution of India and argued that according to said entry only State legislature is competent to enact law regarding jurisdiction of all courts except Supreme Court, with respect to any of the matters in that list. Learned counsel argued that by virtue of entries 13 and 46 of List-III, in matters of civil procedure, including all matters included in the CPC, it is Central legislation namely the Code of Civil Procedure, which shall prevail. Section 27A of the Act not having received assent of the President, despite its insertion in the Act, would not be enforceable. Learned counsel argued that by virtue of entries 13 and 46 of List-III, in matters of civil procedure, including all matters included in the CPC, it is Central legislation namely the Code of Civil Procedure, which shall prevail. Section 27A of the Act not having received assent of the President, despite its insertion in the Act, would not be enforceable. It being ultra vires to the provisions of CPC and Constitution of India is liable to be declared illegal. It is therefore, prayed that the writ petition be allowed in the terms prayed for. 7. Per contra, Shri D.P. Sharma, learned counsel for the respondent-Kumari Prabha Gupta has opposed the writ petition and argued that originally when the Rajasthan Non-Government Educational Institutions Act, 1989 was promulgated, there was no provision for execution of the orders passed by the Tribunal. Since the Tribunal did not have any power to enforce its orders, the litigant had to approach this Court by filing writ petitions to seek a writ of mandamus for execution of such orders. It is contended that Section 27A was inserted by way of amendment at the suggestion of this Court. This is only an ancillary provision to the main provision relating to adjudication of dispute between the management and the employee of the unaided and/or recognized educational institution. Section 27A of the Act, cannot therefore be said to be ultra vires of the Constitution for the mere reason of non-receiving the assent of the President. It is contended that in the original execution application, the respondent confined her claim to a lessor amount because the dispute with regard to payment of gratuity, selection scale and leave encashment etc. were subject matter of litigation before the Supreme court against the judgment of this Court wherein certain interim orders were passed. When the Supreme Court finally decided those matters holding that an employee of aided educational institution entitled to all those benefits, the respondent No.1 revised her claim and accordingly filed another execution application. Learned counsel further argued that the order of Tribunal is clear and categorical on every aspect. The writ petition is barred by the principles of res judicata because already this order was subjected to challenge by the petitioner in earlier writ petition No. 8434/2002 which writ petition was dismissed by division bench of this Court vide its judgment dated 8.11.2004. Learned counsel further argued that the order of Tribunal is clear and categorical on every aspect. The writ petition is barred by the principles of res judicata because already this order was subjected to challenge by the petitioner in earlier writ petition No. 8434/2002 which writ petition was dismissed by division bench of this Court vide its judgment dated 8.11.2004. Learned counsel referred to that judgment, which is on record. 8. Dr. D.P. Sharma, learned counsel for the petitioner has argued that merely because the executing Court had requisitioned opinion of the Treasury Officer and thereafter of the District Education Officer, which in its wisdom it was free to do, for arriving at the correct sum payable to the respondent, it cannot be said that the executing Court entertained a belief that the order of Tribunal was vague or ambiguous. 9. Shri D.P. Sharma, learned counsel for the respondent has submitted that the petitioner has not submitted correct and complete leave account of the respondent. Even according to documents filed by the petitioner at page 14 of the service book, petitioner had earned leave of 241 days for the period from 8.7.1959 to 8.7.1974 and therefore there was no reason for reduction in the number of earned leave in the subsequent period. Schedule-A placed on record by the petitioner indicating only 53 days' leave has been prepared by the petitioner after receiving notice of execution petition, therefore, it is not genuine. 10. Having heard learned counsel for the parties and perused the material on record, we have given our anxious consideration to the rival submissions. 11. We are not inclined to uphold the contention that since Section 19 of the Rajasthan Civil Courts Ordinance empowers a civil Judge, Junior Division to try and decide civil Suit of the valuation upto Rs. 25,00/-, therefore, he would not be competent o entertain and decide execution application filed by the respondent, valuation whereof exceeds Rs. 3 lacs and even more. 25,00/-, therefore, he would not be competent o entertain and decide execution application filed by the respondent, valuation whereof exceeds Rs. 3 lacs and even more. In order to truly appreciate the controversy, Section 27A of the Act of 1989 is reproduced hereunder : "27A-Execution of orders of Tribunal.—The order of the Tribunal deciding appeals preferred under Section 19 and disputes referred to in Section 21 shall be deemed to be the decree of the lowest civil Court having territorial jurisdiction over the local area in which the respondents/against whom the order has been made, ordinarily resides or carries on business or personally works for gain and shall be executed as such by such civil Court." 12. Perusal of the aforesaid provision would indicate that the judgment of the Tribunal has not only been deemed to be decree by virtue of the aforesaid provision but it has been further deemed to be decree of lowest civil Court having territorial jurisdiction over the local area in which the respondent resides or carries on business for gain. It has been further provided that such deemed decree shall be executed as such by such civil Court. In the normal course, although the Civil Judge of Junior Division would be competent to try and decide the civil suit having valuation of Rs. 25,000/- as per Section 19 of the Civil Court Ordinance, but here in the present case, such power has been specifically conferred upon him by virtue of Section 27A, supra where the judgment/order of Tribunal deciding appeals preferred u/Sec. 19 or in dispute referred to in Section 21, has been deemed to be decree of that lowest civil court with the further stipulation that such order shall be executed as if it were a decree of such civil court. When the legislature has engrafted a specific provision in the Act itself authorizing the concerned lowest civil court having territorial jurisdiction to execute the orders of the Tribunal, jurisdiction of such court shall have to be determined with reference to the provision by which that authority has been conferred upon it. This being a special provision, general provision contained in Section 19 of the Act would not be a determining factor for deciding issue of its competence to entertain execution application. 13. This being a special provision, general provision contained in Section 19 of the Act would not be a determining factor for deciding issue of its competence to entertain execution application. 13. Much though the learned counsel for the petitioner has argued on the question of validity of Section 27A of the Act and that of its repugnancy with Sections 19 and 21 of the Rajasthan Civil Court Ordinance and Section 9 of CPC, we are not inclined to uphold this argument for the simple reason that the Civil Judge, Junior Division while entertaining execution application in respect of the orders passed by the Tribunal draws his power and authority for doing so from Section 27A, which is a special provision and not general provision of either Civil Code of Procedure or Rajasthan Civil Court Ordinance. Section 9 of the CPC also in this connection does not create any bar because it is special enactment of the legislature by which Civil Court, Junior Division has been authorized to entertain and decide the execution application. Section 27A of the Act cannot be held ultra vires of he constitution merely because it has not received assent of the President. Section 27A is an ancillary provision to the main provision of Sections 19 to 23 whereby adjudicatory powers have been conferred upon the Tribunal, whereas no power of execution was given to the Tribunal when the main provision of adjudication received assent of President. Section 27A, which has been inserted subsequently, cannot be held to be ultra vires only for the reason that it has not independently received assent of the President. Section 27A has been purposely engrafted into the Act of1989 by subsequent amendment owing to the fact that Tribunal did not have the power to enforce its order and this Court was flooded with number of writ petitions seeking issuance of writ of mandamus on the government and/or the concerned educational institution to execute the orders of the Tribunal. 14. Section 27A has been purposely engrafted into the Act of1989 by subsequent amendment owing to the fact that Tribunal did not have the power to enforce its order and this Court was flooded with number of writ petitions seeking issuance of writ of mandamus on the government and/or the concerned educational institution to execute the orders of the Tribunal. 14. Contention that since Section 27A has not received assent of the President, whereas the main Act of 1989 did receive such assent, therefore, this newly introduced provision being repugnant to the provisions of Rajasthan Civil Court Ordinance, 1949 or CPC should be declared illegal and ultra vires of the Constitution, cannot be accepted because this argument proceeds on the assumption of repugnancy between the Act of 1989 and that of CPC or Ordinance of 1949, which in our view, does not exist. 15. For deciding the question of repugnancy, we have to find out as to for what purpose, the original enactment was reserved for assent of the President. In the present case, the assent of the President had to be obtained in view of Sections 19, 20, 21, 22 and 23 of the Act of 1989 because those provisions created a separate adjudicatory mechanism out of CPC in so far as the disputes covered under the Act of 1989 are concerned, by creating a bar for maintainability of such suit before the civil court under Section 27 of the Act. Section 9 of the Code of Civil Procedure provides that the Courts subject to provisions contained therein shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. This is where Section 27 of the Act of 1989 comes into effect which bars jurisdiction of the civil courts. Effect of Section 27A introduced by way of amendment is that power which had been taken away from the civil courts though for adjudication purpose and conferred upon the Rajasthan Non-Government Education Institution Tribunal established under Section 22 with the assent of the President would continue to vest in such Tribunal, but the power to execute and enforce the orders passed by the said Tribunal have thereby been conferred upon the Civil Court Junior Division. but for the bar created in Section 27 of the Act of 1989, the power for adjudication as well as execution of the decrees would rest with the Civil Courts. Now with the newly inserted Section 27A, adjudicatory power being kept intact, power of execution has come to be vested again in the Civil Court. the purpose behind this is that Civil Courts have got a complete set of procedure and mechanism and also paraphernalia to execute the orders of the Tribunal, which have been in this amended provision deemed to be decree of such Courts. Therefore, there does not in our view arise any question of repugnancy, inconsistency or incompatibility. 16. The Supreme Court in Bharat Hydro Power Corporation Ltd. & Ors. vs. State of Assam & Anr. (2004) 2 SCC 553 held that onus to show repugnancy and extent of repugnancy lies on the party attacking validity of the legislation. Presumption is in favour of validity of the legislation. If two legislations operate in different fields without encroaching upon each other's field, there cannot be any repugnancy. In that case, the State had sought to acquire appellant undertaking and pay compensation. Argument was raised that it was repugnant to the Electricity Act, 1910, which was a Central Act. This argument was rejected by the Supreme Court holding that Section 3 to 7A of the electricity Act of 1910 are applicable only to licensees and appellant not being licensee, those provisions cannot apply to it. Even if the appellant is regarded as a generating company by combined reading of Sections 2(4-A) and 2(6) of the Electricity (Supply) Act, 1948, it would not be a deemed licensee under Section 26-A of the said Act either. Two enactments were thus held to operate in different fields without encroaching upon each others' field. It was held that repugnancy has to be there in fact and not based on a mere possibility to examine whether a legislation had impinged on the field of other legislatures, in fact, or in substance, or is incidental, keeping in view the true nature of the enactment, the courts have evolved the doctrine of "pith and substance" for the purpose of determining whether it is legislation with respect to matters in one list or the other. For applying the principle of "pith and substance" regard is to be had (i) to the enactment as well, (ii) to its main objects and (iii) to the fact and scope of its provisions. Thus, if the substance of the enactment falls within the Union List then the incidental encroachment by the enactment on the State List would not make it invalid. 17. In Dharappa vs. Bijapur Cooperative Milk Producers Societies Union Ltd. (2007) 9 SCC 109 , the dispute was about the cooperative societies and their employees. An argument was raised that cooperative societies' fall into entry 34 of the list and industrial and labour court dispute fall under entry 22. The Labour Court in that case while awarding reinstatement of the appellant held his termination illegal and violative of Section 25-F of the I.D. Act. The High Court held that in view of the specific remedy under Section 70 of the Karnataka Cooperative Societies Act, the Industrial Disputes Act was not applicable to the disputes raised by an employee because Section 70, supra, took away the jurisdiction of the Labour Court/Industrial Tribunal. On the question of repugnancy, it was held by the Supreme Court as under : "12. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx The question of repugnancy can arise only with reference to a legislation made by Parliament falling under the Concurrent List or an existing law with reference to one of the matters enumerated in he concurrent List. If a law made by the State Legislature covered by an entry in the State List incidentally touches any of the entries in the Concurrent List, Article 254 is not attracted. But where a law covered by an entry in the State List (or an amendment to a law covered by an entry in the State List) made by the State Legislature contains a provision, which directly and substantially relates to a matter enumerated in the Concurrent List and is repugnant to any provision of an existing law with respect to that matter in the Concurrent List then such repugnant provision of the State law will be void. Such a provision of law made by the State Legislature touching upon a matter covered by the Concurrent List, will not be void if it can coexist and operate without repugnancy with the provisions of the existing law. Such a provision of law made by the State Legislature touching upon a matter covered by the Concurrent List, will not be void if it can coexist and operate without repugnancy with the provisions of the existing law. What is stated above with reference to an existing law, is also the position with reference to a law made by Parliament. repugnancy is said to arise when: (i) there is clear and direct inconsistency between the Central and the State Act; (ii) such inconsistency is irreconcilable, or brings the State Act in direct collision with the Central Act or brings about a situation where obeying one would lead to disobeying the other. xxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx" 18. Even if therefore it is held that in this case, both Parliament and the State Legislature derived their power to enact from entry 13 read with 46 of the concurrent list, there does not arise any question of repugnancy in the facts of the present case because Section 27A can co-exist and operate independently without repugnancy with the provisions of the existing law namely CPC for the reason that in so far as adjudicatory powers are concerned, the Act of 1989 had already received the assent of the President and that there is no clear and direct inconsistency between the Central and State Act and further that such inconsistency is not such which is irreconcilable or brings the State Act in direct conflict with the Central Act or brings about a situation where obeying one would lead to dis-obeying the other. The argument of the learned counsel for the petitioner with regard to repugnancy is also therefore rejected. 19. Coming now to the argument about the vagueness of the order of Tribunal rendering it incapable of execution, we do not find any substance in this argument either. Operative part of the order is quite clear and specific. The Tribunal has directed that the respondent who was applicant before the Tribunal, would be entitled to receive benefit of selection scale/pay fixation in terms of the government circular dated 23.1.1986 and 25.1.1992 and actual payment shall be confined only to such period which fell within the limitation. Further direction of the Tribunal is to compute the aggregate amount of the respondent on the basis of determination of her salary in compliance of the first direction and pay the same to her with interest @ 9% per annum. Further direction of the Tribunal is to compute the aggregate amount of the respondent on the basis of determination of her salary in compliance of the first direction and pay the same to her with interest @ 9% per annum. Third direction is for encashment of the earned leave and the fourth and last direction is that if after revision of pay of the respondent as per Revised Pay Scale, 1996, she is entitled to any difference of salary/allowances, arrears of the same may also be paid t her only to the extent that claim fall within the limitation of civil Court. The clarity of the aforesaid direction belies the argument of the petitioner which, if we may say so, borders on absurdity. Petitioner has deliberately opted to confuse the issues and mislead this Court by filing only part of documents and retaining other part thereof with respect to leave encashment account of the respondent. Page 14 of the service book of the respondent clearly indicates that petitioner had already earned leave of 241 days from 8.7.1959 till 8.7.1974. There was no question of further reduction of such number of days to only 53 for the entire service career of the respondent, which she earned over a long period of four decades from 1.7.1959 till the date she retired from service on attaining the age of superannuation on 31.3.1999. 20. Moreover, it was not open to the petitioner to again assail the order of the Tribunal dated 2.8.2002 when already writ petition filed by it challenging the very same order was dismissed by this Court on 8.11.2004. Entire effort of the petitioner has been aimed at frustrating just and legitimate claim of the respondent. In our considered opinion, therefore, not only the petition deserves to be dismissed, but with heavy costs. 21. We, therefore, dismiss this writ petition with the costs which we quantity at Rs. 10,000/-, to be paid to respondent No.1 within two months. We direct the executing Court to ensure early execution of the order considering the fact that the order of Tribunal was passed almost a decade ago.