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2017 DIGILAW 195 (GUJ)

Jawahar Navodaya Vidyalaya v. Vinod F. Parmar

2017-01-25

K.M.THAKER

body2017
JUDGMENT : K.M. Thaker, J. 1. Heard Ms. Sheth, learned advocate for the petitioner - Jawahar Navodaya Vidyalaya (hereinafter referred to as 'Vidyalaya') and Mr. Hajare, learned advocate for the respondent - original claimant. 2. The captioned petitions are, in substance and in effect, cross petitions. In Special Civil Application No. 17927 of 2006, the employer of original claimant, i.e. Vidyalaya has prayed, inter alia, that: "9(b) issue a writ of certiorari or any other appropriate writ in the nature of certiorari or any other writ order or direction directing the to quash and set aside the impugned order dated 19.12.2005 at Annexure-A hereto passed in Reference No. 336 of 1995 by the Hon'ble Labour Court, Bharuch;" 3. With the said prayer, Vidyalaya has challenged award dated 19.12.2005 passed by the learned Labour Court, Bharuch in Reference (LCB) No. 336 of 1995 whereby the learned Labour Court directed the Vidyalaya to reinstate the original claimant on his original post with 10% backwages from 1.1.1997. 4. Whereas in Special Civil Application No. 6177 of 2008, original claimant before the learned Labour Court, i.e. Mr. V.F. Parmar has prayed, inter alia, that: "8(A) To quash and set aside the part of direction contained in Award Annexure 'A' with regard to the withholding/denying full back wages to the petitioner from 16.04.92 to 31.12.96 and further denying 90% back wages from 1.1.97 till the date of reinstatement and, direct the respondent to pay full back wages for entire period commencing from 16.04.92 till the date of reinstatement with all consequential benefits." 5. Annexure-A, page 6 of Special Civil Application No. 6177 of 2008 is the same award dated 19.12.2005 passed by the learned Labour Court, Bharuch in Reference (LCB) No. 336 of 1995 which is challenged by the Vidyalaya in Special Civil Application No. 17927 of 2006. 6. Therefore, the captioned petitions are decided by this common judgment. 7. At the outset, Ms. Sheth, learned advocate appearing for the Vidyalaya submitted that the award which is impugned by the Vidyalaya, is passed by the Court without jurisdiction to adjudicate the dispute. 6. Therefore, the captioned petitions are decided by this common judgment. 7. At the outset, Ms. Sheth, learned advocate appearing for the Vidyalaya submitted that the award which is impugned by the Vidyalaya, is passed by the Court without jurisdiction to adjudicate the dispute. She submitted that undisputedly, the claimant was an employee of the Vidyalaya and his service came to be discontinued vide order dated 13.4.1992 passed in exercise of the provisions under the Central - Civil Services (Temporary Service) Rules, 1965 (which is evident from the document at Annexure-D, page 19 of Special Civil Application No. 6177 of 2008. In his petition, the original claimant has prayed for the part of wages which are denied by the learned Labour Court. 8. According to Ms. Sheth, learned advocate for the Vidyalaya, the learned Labour Court would not have jurisdiction to adjudicate dispute against the Vidyalaya by an employee of the Vidyalaya because exclusive jurisdiction vests with the Central Administrative Tribunal. 9. To support her submission, Ms. Sheth, learned advocate for the Vidyalaya relied on a notification dated 17.12.1998 which is issued in exercise of powers conferred by sub-section (2) of Section 14. The said Section 14(2) reads thus: "14(2) The Central Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of sub-section (3) to local or other authorities within the territory of India or under the control of the Government of India and to corporations [or societies] owned or controlled by Government, not being a local or other authority or corporation [or society] controlled or owned by a State Government: Provided that if the Central Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dates may be so specified under this sub-section in respect of different classes of, or different categories under any class of, local or other authorities or corporations [or societies]." 10. Abovementioned notification dated 17.12.1998 is issued under said Section 14(2). Abovementioned notification dated 17.12.1998 is issued under said Section 14(2). The said notification reads thus: "MINISTRY OF PERSONNEL, PUBLIC GRIEVANCE AND PENSIONS (Department of Personnel and Training) NOTIFICATION New Delhi, the 17th December, 1998 G.S.R. 748(E) : - In exercise of the powers conferred by sub-section (2) of section 14 of the Administrative Tribunals Act, 1985 (13 of 1985), the Central Government hereby specifies the 1st day of January, 1999, as the date on and from which the provisions of sub-section (3) of section 14 of the said Act shall apply to the organisations mentioned below, being the societies and statutory organisations owned or controlled by the Government and makes the following amendments in the notification of the Government of India in the Ministry of Personnel, Public Grievances and Pensions(Department of Personnel and Training) number G.S.R. 730(E), dated the 2nd May, 1986, namely:- In the Schedule to the said notification, after serial number 9 and the entries relating thereto, the following serial numbers and entries shall be added, namely:- Sl. No. Name of the corporation/Society/Other authority Status 1 2 3 10. to 34. ……………. …………… 35. Navodya Vidyalaya Samiti A-39, Kailash Colony, New Delhi-110048 Registered under Societies Registration Act, 1860 11. In view of the said notification, it comes out that the Central Administrative Tribunals Act, 1985 is made applicable to the Vidyalaya with effect from 17.12.1998. 12. In view of the said provision, the jurisdiction to adjudicate dispute between the employee of the Vidyalaya and the Vidyalaya would be with the learned Administrative Tribunal. 13. So as to support her submission, learned advocate for the Vidyalaya also relied on the order dated 18.7.1994 passed in Special Civil Application No. 468 of 1993. Relevant part of the order reads thus: "I uphold the preliminary objection that the matter is required to be filed not before this Court but before the Central Administrative Tribunal. The termination order is of April 92 which was communicated to the petitioner in May 1992. Within one year, the petitioner should have been filed challenging the order before the Tribunal. By April 1993, the Tribunal should have been approached, instead the petitioner has approached this Court in December 1992. The termination order is of April 92 which was communicated to the petitioner in May 1992. Within one year, the petitioner should have been filed challenging the order before the Tribunal. By April 1993, the Tribunal should have been approached, instead the petitioner has approached this Court in December 1992. The petitioner should therefore approach the said Tribunal also for condonation of delay, which will certainly be inquired into and the fact that he has earlier approached by filing petition in this Court and it is hoped that the same should be taken into consideration by the Tribunal's members and consider the case of the petitioner sympathetically so far as the condonation of delay is concerned. So far as the Court is concerned, the petition is rejected. Notice discharged." 14. Having regard to the abovementioned observations and Section 14(2) and the Notification dated 17.12.1998, it is clear that the learned Labour Court lacked jurisdiction to adjudicate the reference and decide the dispute. 15. From the impugned order dated 19.12.2005 (observations in paragraph No. 10 of the award), it appears that on strength of the order in Special Civil Application No. 468 of 1993, preliminary contention with regard to maintainability of reference was raised by Vidyalaya before the learned Labour Court, however, the learned Labour Court did not decide the objection/issue. 16. Unfortunately, the original claimant also did not reconsider his decision of prosecuting reference before the learned Labour Court the decision to prosecute the petition. 17. It appears that in 2007, when the petition was admitted, the contention about maintainability of award on the ground that the learned Labour Court lacked jurisdiction, was raised. 18. Even at that sage, the claimant did not consider the option of pursuing remedy before the appropriate forum. 19. Be that as it may, having regard to the abovementioned notification dated 17.12.1998 and the order dated 18.7.1994 in Special Civil Application No. 468 of 1993, it has to be held that the award impugned in the captioned petitions is without jurisdiction and therefore, it cannot be sustained. Consequently, the award deserves to be and is accordingly set aside for the aforesaid reasons. 20. In the result, Special Civil Application No. 17927 of 2006 is allowed and Rule is made absolute in the said petition, whereas Special Civil Application No. 6177 of 2008 is dismissed and Rule is discharged. 21. Consequently, the award deserves to be and is accordingly set aside for the aforesaid reasons. 20. In the result, Special Civil Application No. 17927 of 2006 is allowed and Rule is made absolute in the said petition, whereas Special Civil Application No. 6177 of 2008 is dismissed and Rule is discharged. 21. It is clarified that if the original claimant wants to pursue remedy before appropriate forum, then either the award challenged in captioned petitions or this judgment in the captioned petitions will not stand in way of the claimant. It is also clarified that the Vidyalaya may raise objection as may be available in law including on ground of limitation.