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2011 DIGILAW 91 (CAL)

Don Bosco School v. Lutan Thakur

2011-01-21

TARUN KUMAR GUPTA

body2011
JUDGMENT TARUN KUMAR GUPTA, J. 1. THIS Second Appeal is directed against judgment and decree dated 1st of October, 2005 and 27th October, 2005 respectively passed by learned Additional District Judge, 1st Court, Howrah in Title Appeal No.222 of 2002 confirming the judgment and decree dated 10.09.2002 passed by learned Civil Judge (Senior Division), 1st Court, Howrah in Title Suit No.43 of 2002. 2. THIS Second Appeal has a long history which may be summarized as follows:- List of dates 11.2.1986 : The service of the plaintiff /Respondent was terminated. 27.5.1986 : The plaintiff /Respondent filed the suit being Title Suit No.137 of 1986 in the Court of the learned Munsif (First Court) at Howrah for declaration and permanent injunction; 28.8.1989 : Learned Munsif (First Court), Howrah, dismissed the Title Suit No.137 of 1986; 11.9.1989 : Appeal filed against the order of dismissal dated 28.8.1989 being Title Appeal No.221 of 1989 in the Court of the Learned District Judge, Howrah. 28.2.1990 : The plaintiff /Respondent reached the age of retirement. 25.8.1990 : The learned Additional District Judge, Third Court, Howrah, remanded the suit by setting aside the order passed by learned First Munsif in Title Suit No.137 of 1986. 30.11.1990 : The defendant /appellant filed the Second Appeal (subsequently renumbered as S.A. No.663 of 1993) against the judgment and order dated 25.8.1990 passed by the learned Additional District Judge, Howrah. 19.3.1997 : Second Appeal No.663 of 1993 was dismissed by His Lordship the Hon’ble Justice D. P. Sarkar, by affirming the order of remand passed by the learned Court below. 21.1.1999 : The application for amendment of the Plaint was filed by the plaintiff/respondent. 9.2.1999 : The application for amendment of the plaint was allowed. 30.6.1999 : The learned Munsif returned the plaint to be presented before the Appropriate Court for want of pecuniary jurisdiction. 20.7.2000 : Misc. Appeal No.207 of 1999 filed by the plaintiff/respondent against the order dated 30.06.1999 was dismissed by the learned Civil Judge (Senior Division), Third Court at Howrah. 26.3.2002 : The revisional application being C.O. No.3085 of 2000 preferred by the plaintiff/respondent against the order dated 20.7.2000 was disposed of by Hon’ble Justice Asit Kumar Bisi by directing the Learned District Judge, Howrah, to transfer the suit to the Appropriate Court having proper jurisdiction. 26.3.2002 : The revisional application being C.O. No.3085 of 2000 preferred by the plaintiff/respondent against the order dated 20.7.2000 was disposed of by Hon’ble Justice Asit Kumar Bisi by directing the Learned District Judge, Howrah, to transfer the suit to the Appropriate Court having proper jurisdiction. In terms of the said judgment and order of the Hon’ble High Court, Calcutta, Title Suit No.137 of 1986 was transferred to the Court of the learned Civil Judge (Senior Division), First Court at Howrah, and was renumbered as Title Suit No.43 of 2002. 10.9.2002 : Title Suit No.43 of 2002 was decreed by the learned Civil Judge (Senior Division) First Court, Howrah. 3.10.2002 : The defendant /appellant preferred Title Appeal No.222 of 2002 before the learned District Judge, Howrah, against the judgment and decree dated 10,.09.2002 passed in Title Suit No.43 of 2002. 1.10.2005 : The Title Appeal No.222 of 2002 was dismissed by the learned Additional District Judge, First Court at Howrah. 24.2.2006 : Second Appeal being S.A.T. No.390 of 2006 was filed by the defendant/appellant against the judgment and order dated 1.10.2005 passed in Title Appeal No.222 of 2002. 3. Respondent/plaintiff initially filed a suit being Title Suit No.37 of 1986 in the Court of learned Munsif, 1st Court, Howrah alleging inter alia that he was appointed as Assistant Teacher on 6th of January, 1960 by the then Managing Committee of the Defendant School against a permanent vacancy and after the probation period of one year he was confirmed by the then Managing Committee in said post with effect from January, 1961. Plaintiff was compelled to sign an agreement of service on 10th June, 1961 though said agreement of service was highly unjust, unfair and arbitrary. 4. THE terms and conditions of said agreement conferred uncontrolled and unfettered authority upon the Principal of the Managing Committee of the school over the service of plaintiff teacher. As the plaintiff was in dire necessity of said job he was compelled to sign said agreement. THE service of the plaintiff in said school was duly approved by the Education Directorate, Government of West Bengal and plaintiff was allowed to draw dearness allowance admissible as per law. After completion of 25 years of satisfactory service, plaintiff was awarded a sum of Rs.1,000/- by the School authority as a token of good service. THE service of the plaintiff in said school was duly approved by the Education Directorate, Government of West Bengal and plaintiff was allowed to draw dearness allowance admissible as per law. After completion of 25 years of satisfactory service, plaintiff was awarded a sum of Rs.1,000/- by the School authority as a token of good service. Said school was a higher secondary school recognized as Anglo Indian School by the Education Department, Government of West Bengal and is governed by code of regulations for European now Anglo Indian School in Bengal (now the West Bengal), 1929. THE plaintiff formed an association of the teaching and non-teaching staff of said school which was duly registered on 15.01.1986. THE plaintiff as secretary of said association pressed a charter of demand before the authority regarding the regulation of service and benefits to be given to the members of the association. On 12.2.86 the plaintiff was served with a notice dated 11.2.86 with a cheque of Rs.4445/- informing that the Managing Committee terminated the service of the plaintiff on and from 11.2.86 and that said cheque was for the payment of salary of the plaintiff for three months in lieu of notice. Said notice of termination was illegal and issued in gross violation of natural justice and accordingly the plaintiff prayed for declaring that such notice was bad in law and that plaintiff continued to be a permanent assistant teacher in said school and was entitled to get all the reliefs. Appellant/defendants contested said suit by filing joint written statement denying material allegations of the plaint and contending inter alia that the suit was not maintainable and the suit was barred under the relevant provisions of Specific Relief Act and also under Article 30 of the Indian Constitution and Section 80 of C. P. C. The service of plaintiff was controlled by an agreement and that the service of plaintiff was terminated as per terms of said agreement. The notice of termination under Clause 5 was valid, legal and sufficient and that the school was governed by the code of regulation of European School in Bengal in 1929 and not by the rules for the management of recognized, non-governed institution (aided and un-aided), 1969. 5. The notice of termination under Clause 5 was valid, legal and sufficient and that the school was governed by the code of regulation of European School in Bengal in 1929 and not by the rules for the management of recognized, non-governed institution (aided and un-aided), 1969. 5. THE suit was hopelessly barred by limitation and that the same was liable to be dismissed as the plaintiff has not paid any court fees upon amount claimed by the plaintiff after amendment of plaint. The plaintiff has no right to claim any salary or other benefits as he did not function as a teacher after said termination. During pendency of the appeal in the Lower Appellate Court at the first instance the plaintiff reached the age of superannuation and accordingly prayed for amendment of plaint which was allowed and accordingly plaintiff has made amendments of the plaint wherein he has prayed that he was wrongfully terminated by the letter dated 11.2.1986 and that since then he was denied with his salary and other allowances as admissible till his retirement on the superannuation and that he is also entitled to recover his other retirement benefits along with interest from the defendant school authority as per law. He prayed for declaration and consequential reliefs to that effect. 6. ON the basis of the pleadings of the parties learned Trial Court framed several issues and passed a decree in favour of the plaintiff. Learned Lower Appellate Court confirmed said judgment and decree by the by the impugned judgment and decree. Being aggrieved with said judgment the defendant /school authority has preferred this second appeal. During admission of the second appeal the Division Bench framed the following questions of law on which this appeal will be heard. (a) Whether the learned Court below committed substantial error of law in passing a decree on the basis of the observation made by this Court in S.A. No.663 of 1993 preferred by the appellant against order of open remand, which was maintained by this Court. (a) Whether the learned Court below committed substantial error of law in passing a decree on the basis of the observation made by this Court in S.A. No.663 of 1993 preferred by the appellant against order of open remand, which was maintained by this Court. (b) In S.A. No.663 of 1993 this Court in the past having maintained open remand meaning thereby that all questions including all the defences of the appellant were kept open, whether the learned Courts below committed substantial error of law in relying upon the observation regarding merit of the matter, which was in the nature of obiter dictum; (c) After remand by the learned First Appellate Court below, which was affirmed by this Court in a previous second appeal, the plaintiff having amended the plaint and the claim of the plaintiff having exceeded in pecuniary limit of the court where such suit was pending and such court having returned the plaint for presentation before the appropriate forum, whether the suit can be held to be barred by limitation in view of the fact that the suit should for all practical purpose be deemed to have been instituted afresh before the court having pecuniary jurisdiction. (d) Whether the order passed by a learned Single Judge of this Court in C.O. No.3085 of 2000 dated 20th March, 2002 preferred against the appellate order affirming return of the plaint thereby directing the learned District Judge to transfer the proceeding to a court having pecuniary jurisdiction can take away the right of the defendant to advance the plea of limitation when this Court has affirmed the order of the learned First Appellate Court below that the Court where the suit was pending had no pecuniary jurisdiction. (e) Whether the learned Court of Appeal below committed substantial error of law in affirming the judgment and decree passed by the learned Trial Judge by totally overlooking the provisions contained in Order XLI Rule 31 of the Code. Mr. Asok Kumar Chakraborty, learned advocate for the appellant/school, has submitted at the very outset that both the learned Courts below committed substantial error of law in passing a decree in favour of respondent plaintiff on the basis of observations made by this Court in Second Appeal being S.A. No.663 of 93 wherein the order of remand passed by learned Lower Appellate Court in the earlier instance was confirmed. In this connection, he has further submitted that when an order of open remand was made, all questions including defences of the appellant were kept open and that learned Courts below committed substantial error of law in relying upon the observations regarding the merit of the matter made by this Court in the Second Appeal which was nothing but obiter dictum and was not binding upon the learned Courts below. 7. MR. Chakraborty has further contended that the judgment and decree of learned Lower Appellate Court in Title Appeal No.222 of 2002 was not a judgment at all as it violated the provisions of Order 41 Rule 31 of Code of Civil Procedure and that the matter should be remanded back to the learned Lower Appellate Court for writing judgment afresh. 8. MR. Lutan Thakur, respondent appearing in person, on the other hand, has submitted that aforesaid judgment of this Court passed in S.A. No.663 of 1993 was the reported judgment vide 1997 (II) Calcutta High Court Notes page 613 and that though appellant school moved Hon’ble Apex Court against said judgment but the same was not entertained. According to MR. Thakur said judgment of this Court as reported had binding effect upon learned Courts below and learned Courts below did not commit any wrong in relying upon observations made in said judgment. There is no denial that when an order of open remand was made all questions including defence of the appellant were kept upon and learned Courts below were required to give their findings on all issues involved in the case. There is no denial that both the Lower Courts were swayed by the observations made by this Court in said reported judgment relating to this case. However, admittedly, the original suit was filed in 1986 and by this time the respondent teacher whose service was terminated by the appellant school in 1986, reached the age of superannuation and there was amendment to that effect and it is 2011. Considering this long delay and peculiar nature of the case I am of the opinion that justice shall be subserved if without remanding the case to learned Lower Appellate Court the matter is dealt with in this Forum on the basis of materials already on record. 9. MR. Considering this long delay and peculiar nature of the case I am of the opinion that justice shall be subserved if without remanding the case to learned Lower Appellate Court the matter is dealt with in this Forum on the basis of materials already on record. 9. MR. Asok Kumar Chakraborty, learned advocate for the appellant school has next contended that initially Title Suit No.137 of 1986 was filed before learned Munsif, First Court, Howrah for declaring termination of respondent teacher was bad with other consequential reliefs and that on account of attaining age of superannuation by the respondent plaintiff during pendency of the First Appeal of the first instance, the plaint was amended on 9th of March, 1999 and the suit being beyond the pecuniary jurisdiction of the Court of learned Munsif, First Court, Howrah was transferred to a competent Court of having pecuniary jurisdiction namely Court of learned Civil Judge (Senior Division), First Court at Howrah in 2002 and that the suit was barred by limitation as admittedly respondent/plaintiff was dismissed from service in 1986. 10. Mr. Thakur has refuted said submission by contending that on account of change of circumstances namely attaining the age of superannuation during pendency of the First Appeal at the first instance, there was necessity of amendment of the plaint to mould the reliefs accordingly and that after amendment the case was transferred to a competent Court as per direction dated 20.07.2007 of this Court in C.O. No.3085 of 2000. According to Mr. Thakur the question of limitation did not arise as said suit was not filed in the Court of learned Civil Judge (Senior Division), First Court at Howrah afresh. There is no denial that during pendency of the case respondent reached the age of superannuation and that it necessitated amendment of plaint for moulding the reliefs accordingly. It is also an admitted fact that after moulding of the reliefs through amendment learned Trial Court returned the plaint claiming to be beyond his pecuniary jurisdiction for filing in a proper forum and that the matter went up to this Court when there was a direction upon learned District Judge, Howrah for transferring said suit to an appropriate Court having proper jurisdiction vide Order dated 20.07.2000 in C. O. No.3085 of 2000. Under these facts and circumstances the transfer of the case to the Court of learned Civil Judge (Senior Division), First Court, Howrah should not be treated as initiation of a fresh suit. 11. MR Asok Kumar Chakraborty, learned advocate for the appellant school, has submitted that termination of the service of a teacher by a minority institution is protected by Article 30 of the Constitution of India and is not an enforceable right and that since it is not an enforceable right the respondent/plaintiff was not entitled to any other amount save and except three months salary in terms of the agreement. 12. MR. Thakur, on the other hand, has submitted that the agreement of service dated 10th of June, 1961 was highly unjust, unfair and arbitrary and that termination of service of respondent /plaintiff /teacher after 25 years of satisfactory service by sending a notice dated 11.02.1986 with a cheque equal to the salary for three months in lies of notice, without assigning any reason was bad in law and that said termination was not also approved by the competent authority. He has further contended that protection under Article 30 of the Constitution of India is not unfettered and the same is subject to scrutiny by competent Court of law. According to him, in the case law reported in 1997 (II) CHN page 613 relating to this case it was specifically held that said order of termination was bad and that aforesaid judgment of this Court was not set aside by any higher Court and that on the basis of said order the instant appeal should be dismissed with cost. Mr. Chakraborty, in reply, has submitted that the observations of this Court in said reported judgment about the merit of the suit were without jurisdiction having no binding force. As this Court has preferred to dispose of this case on merit on the basis of materials already on record, without remanding the matter back to learned Lower Appellate Court, to save time it has to be decided whether termination of the service of respondent/teacher by a minority institution is protected by Article 30(1) of the Constitution of India and is not an enforceable right. Article 30(1) of the Constitution of India stands as follows:- Article 30. (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. Article 30(1) of the Constitution of India stands as follows:- Article 30. (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. Though Article 30(1) itself does not lay down any limitations upon the right of a minority to administer its educational institutions, this right is not absolute, but must be subject to reasonable regulations for the benefit of the institution as the vehicle of education for the minority community, consistent with the national interest. Several judgments were based on this point by Hon’ble Apex Court. Those reasonable regulations are; (i) to maintain the educational character and standard of such institution, e.g., to lay down qualifications or conditions of service to secure appointment of good teachers, to ensure interests of students; to maintain a fair standard of teaching; (ii) to ensure orderly, efficient and sound administration and to prevent maladministration, and to secure its proper functioning as an educational institution; to ensure that its funds are spent for the betterment of education and not for extraneous purposes. (iii) To prevent anti-national activity; (iv) To enforce the general laws of the land, applicable to all persons, e.g., taxation, sanitation, social welfare, economic regulations, public order, morality. (v) To prescribe syllabus, curriculum of study and regulate the appointment of teachers; etc. In this connection Hon’ble Apex Court held in a case that the right to administer under Article 30(1) of the Constitution of India cannot include the right to maladminister. It was also held by Hon’ble Apex Court that although disciplinary control over teachers is with the management, regulations can be made by the State for ensuring proper conditions of service for teachers as well as ensuring a fair procedure in disciplinary action against them; In this connection Mr. Thakur has submitted that his agreement with the school authority was not approved by the European School now substituted by the Deputy Director of Education (Anglo Indian) Schools, Government of West Bengal as required by Clause 1 of Chapter 3 of the Code of Regulation, 1929. Thakur has submitted that his agreement with the school authority was not approved by the European School now substituted by the Deputy Director of Education (Anglo Indian) Schools, Government of West Bengal as required by Clause 1 of Chapter 3 of the Code of Regulation, 1929. The respondent also referred to a copy of the letter written by Deputy Director of Schools, Education, Government of West Bengal to the Law Officer, School Education Directorate in connection with the earlier appeal intimating that the school did not obtain approval of the Deputy Director of School, Education in respect of terms and conditions of the agreement made in between school authority and respondent teacher The code of regulation for European, now Anglo Indian Schools in Bengal (Now West Bengal), 1929 lays down in Clause 1 of Chapter 3 that in aided school every paid teacher should be engaged under a written agreement with the governing body. In same Code in Clause 4 of Chapter 3 it was laid down that no teacher may be dismissed either summarily or with due notice save by the Governing Body, who shall in all cases of summary dismissal immediately report the fact with full particulars to the Inspector. A teacher who considers himself unjustly dismissed shall be permitted to make representation to the Inspector of European Schools, Bengal, and the Governing Body shall in such a case defer final action until they shall have received from the Inspector an expression of his views. 13. ADMITTEDLY the service of respondent/teacher was terminated as per Clause No.5 of the agreement. As per said Clause 5 service of a teacher can be terminated with three months notice and the requirement of three months notice would be considered to have been fulfilled if either side, for adequate reasons passed to the other party money equivalent to three months salary in lieu of notice. There is nothing to show that this agreement was approved by the Inspector of European Schools now substituted by the Deputy Director of Education (Anglo Indian Schools), Government of West Bengal as required under the Code. Again it appears that though there is mention of the words for adequate reasons in term No.5 of the agreement, but no reason whatsoever was given in the termination letter. 14. Again it appears that though there is mention of the words for adequate reasons in term No.5 of the agreement, but no reason whatsoever was given in the termination letter. 14. HON’BLE Apex Court has laid down in several cases that Article 30 (1) of the Constitution of India is not a charter for mal-administration. As such the incident of termination of service of a teacher just by giving a notice of termination with three months salary in lieu of three months notice after completion of 25 years successful service, that too without assigning any reason cannot be said to be legal, proper and valid by any stretch of imagination. If the termination of the respondent /teacher was not legal and valid then certainly he is entitled to claim his arrear salary and retirement benefits with interest. Mr. Chakraborty, learned advocate for the appellant, has submitted that the suit was converted into a money suit by way of amendment by claiming retirement benefits with interest and that respondent /plaintiff should have been asked to pay additional Court fees on total computation of arrears salary, provident fund and gratuity. 15. SRI Thakur by refuting said argument, has submitted that the suit was filed for declaration with consequential reliefs and that claim of arrear salary and retirement benefits with interest came under consequential reliefs and hence no additional Court fee was required to be paid. 16. IT is true that by way of amendment respondent/plaintiff claimed not only arrear salary with interest but also retirement benefits including provident fund, gratuity etc. with interest as the consequential reliefs. The main prayer of the respondent /plaintiff /teacher was for a declaration that the termination of his service was bad in law and that he was entitled to get salary and allowances as per rule during the period of his remaining service and all retirement benefits with interest on account of attaining age of superannuation during pendency of the suit. As such though respondent/plaintiff /teacher claimed arrear salary and retirement benefits with interest but those were in the nature of consequential reliefs. Main prayer was declaration of the termination of service as bad, illegal etc., and the suit maintained the character of a decleratory suit. If that be the position then there is no question of payment of additional Court fees by the respondent/plaintiff. Main prayer was declaration of the termination of service as bad, illegal etc., and the suit maintained the character of a decleratory suit. If that be the position then there is no question of payment of additional Court fees by the respondent/plaintiff. Accordingly, I find and hold that the ultimate findings of learned Lower Appellate Court namely dismissal of appeal by way of confirming the judgment and decree of learned Trial Court, does not call for any interference by this Court. As a result, the appeal stands dismissed. Send down L.C.R. along with a copy of this judgment to the Lower Court urgently for necessary action. Urgent xerox certified copy of this judgment be supplied to learned Counsels of the party / parties, if applied for. (Tarun Kumar Gupta, J.) Later Mr. Asok Kumar Chakraborty, learned advocate appearing for the appellant, prays for stay of operation of the judgment for six weeks. The prayer for stay of operation of the judgment is considered and rejected.