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Gujarat High Court · body

2018 DIGILAW 85 (GUJ)

Nadiad Education Society v. Snehlataben H. Shah

2018-01-11

A.S.SUPEHIA

body2018
JUDGMENT : 1. In the present writ petition, the petitioner has assailed the order dated 21.10.2005 passed by the Gujarat Affiliated Colleges Services tribunal Act, 1982, (herein after referred as 'tribunal'), whereby and wherein the tribunal has allowed restoration application filed by the respondent herein. 2. The brief facts giving rise to the present petition are that: 3. Petitioner no.1 is Educational Society duly registered and incorporated under the provisions of the Bombay Public Trusts Act, 1950 and having Registration No.Kheda/F-3 and is running Science, Arts, Law and Commerce Colleges and also runs Primary as well as High School. Petitioner no.2 is the Principal of J&J College of Science run by petitioner no.1 trust and he is academic head of the institution where the respondent was working. The respondent was working as a Lecturer in petitioner no.2 College with effect from 15.06.1964. On 13.03.1973, an advance notice was given to relieve the respondent from service with effect from 14.06.1973. Thereupon respondent preferred a Regular Civil Suit No. 187 of 1973 in the Court of 2nd Joint Civil Judge (SD), Nadiad. The said suit was preferred on 14.06.1973. In that Suit a request was made for a reference to the High Court under Section 113 of Civil Procedure Code as to determine the authority of Section 51-A of Gujarat University Act and also Ordinance 120-F to 120-G of Gujarat University. There were some proceedings in between in connection with the authority of the Act; however, the same are not referred to herein. The said matter was heard by the Civil Judge (SD) Nadiad on 14.08.1997 holding that the Civil Court has no jurisdiction to try and decide the Suit, as the tribunal is now constituted and, therefore, the Suit was transferred under Section 13(2) of the Act, to the Tribunal. 4. On transfer of the Suit, the matter was placed before the tribunal on 30.08.1997. Thereafter, the matter was again placed on 10.09.1997 and on 10.09.1997 a notice was issued to the petitioner and again the matter was placed on 09.10.1997. On 09.10.1997, as the respondent did not remain present, the tribunal issued notice to the respondent to remain present. Again the matter was adjourned from time to time and it was again placed for hearing on 12.02.1998. The tribunal again issued notice to the respondent teacher and thereafter the matter was being adjourned from time to time. On 09.10.1997, as the respondent did not remain present, the tribunal issued notice to the respondent to remain present. Again the matter was adjourned from time to time and it was again placed for hearing on 12.02.1998. The tribunal again issued notice to the respondent teacher and thereafter the matter was being adjourned from time to time. Despite about 10 to 15 adjournments granted by the tribunal, the respondent teacher neither remained present nor engaged any lawyer to represent her case. Thereafter, on 07.10.1998 the petition came to be dismissed for want of prosecution. 5. Learned advocate Ms.Nanavati appearing on behalf of the petitioner has submitted that the tribunal has erred in allowing restoration application filed by respondent in absence of any prayer for condonation of delay. She has submitted that respondent did not take any action for restoration of application, which was dismissed for want of prosecution on 07.10.1988. After passage of 6 years i.e. in November, 2004, the respondent has filed restoration application no.2 of 2004 for restoration of application no. 92 of 1997. The reasons assigned by her that she was not informed by the advocate about the date of hearing and she personally came to know about dismissal on 07.10.1998. Learned advocate Ms.Nanavati has submitted that all notices are served to the respondent by tribunal for restoration of main application. Learned advocate for the petitioner has vehemently opposed the restoration application filed after period of 6 years, 1 month and 4 days. It was contended that in view of the Division Bench's judgment rendered in the case of Girishchandra R. Bhatt and Another Vs. Dineshbhai N. Sanghavi, Principal, Sanghvi Primary School and Others, reported in (1996) 1 G.L.R. 812 , the provisions of C.P.C. are made applicable to the tribunal and hence without there being any condonation of delay, the tribunal should not have allowed the application for restoration. 6. She has submitted that looking to the Article 122 of Limitation Act, the application has to be moved within a period of 30 days from the date of issuance of order. Learned advocate Ms.Nanavati has drawn attention of this court to the impugned order, wherein she has submitted that the tribunal has not assigned any reasons for entertaining the restoration application and in fact no contention was raised for condoning delay by the present respondent before the tribunal. Learned advocate Ms.Nanavati has drawn attention of this court to the impugned order, wherein she has submitted that the tribunal has not assigned any reasons for entertaining the restoration application and in fact no contention was raised for condoning delay by the present respondent before the tribunal. In absence of any contentions raised therein she has submitted that the tribunal has erred in restoring application no.92 of 1997. Ms.Nanavati has placed reliance on Section 10 of the Gujarat Affiliated Collages Services Tribunal Act, 1982, which provides that “The Tribunal shall be deemed to be a Court for the purpose of Section 5 of the Limitation Act, 1963”. Hence, in view of the aforesaid Section, the tribunal was under an obligation to call upon the respondent to explain delay in filing restoration application. Hence, in view of the aforesaid lacuna, she has submitted that the order of tribunal is required to be interfered by this court. 7. Per contra, learned advocate Mr.Vishal Mehta appearing on behalf of the respondent has submitted that the respondent was not aware with the dismissal of original application as advocate neither remained present nor informed about such dismissal of the application by the tribunal. He has submitted that on inquiry made by the respondent, necessary application was filed thereafter. He has submitted that there were personal difficulties in her family which precluded her in approaching the tribunal within reasonable time. 8. Before adverting to the controversy, It would be apposite to refer relevant provisions. Section 10 of the Gujarat Affiliated Collages Services Tribunal Act, 1982, reads as under: “10. (1) For the purpose of exercising the jurisdiction under this Act a Tribunal shall have the same powers as are vested in Civil Court under the Code of Civil Procedure, 1908 in respect to the following matters : namely; (a) summoning and enforcing the attendance of any person on examining him on oath. (b) requiring the discriminatory and production of documents. (c) Issue commissions for the examination of witnesses. (b) requiring the discriminatory and production of documents. (c) Issue commissions for the examination of witnesses. (d) Such other matters as may be prescribed (3) The Tribunal shall be deemed to be a Court for the purpose of Section 5 of the Limitation Act, 1963.” From plain reading of aforesaid section, it is clear that the Tribunal have the same powers as are vested in the Civil Court under the Code of Civil Procedure, coupled with the fact, it is also held to be a Court for the purpose of Section 5 of Limitation Act. The said section 5 of Limitation Act, 1963 is set out hereinbelow for ready reference: Section-5 “Extension of prescribed period in certain cases – Any appeal or any application other than an application under any of the provisions of Order XXI of the Code of Civil Procedure 1908, may be admitted after the prescribed period but the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation : The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining of computing the prescribed period may be sufficient cause within the meaning of this section The limitation prescribed under the provisions of the Limitation Act, 1963 is under Article 122. The said Article provides as under : Article 122 : To restore a Suit or Appeal or application for review or revision Dismissed for default of appearance or for want of prosecution or for Failure to pay costs of service of process or to furnish security for Costs” Thirty days The date of Dismissal If we read clause 14, it can be said that Civil Procedure Code, 1908 is made applicable by incorporation. When a statue is incorporated in another one, the same is required to be read as if it is a part of that statute. Rules or Procedure Order made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act and are to be judicially noticed for all purposes of construction or obligation. The statutory Rules cannot be described as or equated with administrative directions. The statutory Rules cannot be described as or equated with administrative directions. The Primary Education Act and the Procedure Order made thereunder constitute a self-contained Code providing for resolving the disputes between the teacher and the management of a recognised primary school. It is well accepted legislative practice to incorporate by reference if the legislature so chooses the provisions of some other Act in so fact as they are relevant for the purpose and in furtherance of the scheme and object of that Act.” 10. Thus, the restoration application was required to be treated as an application under Order IX, Rule 3 of the Civil Procedure Code, 1908. 11. From the aforesaid analysis of the provision of Tribunal Act, 1982 and the Limitation Act, there cannot be scintilla of doubt that the respondent herein was required to file an application for condonation of delay within 30 days as envisaged under the Article 122 of the Limitation Act, 1963, for restoration of her application or at least she should have made some averments in the restoration application explaining delay and seeking condonation of the same. In absence of such averments and contentions raised before the tribunal, the tribunal was not justified in allowing restoration application straight way with a cryptic order. 12. In this view of the matter and in light of foregoing observations, the present petition is allowed. The impugned order dated 21.10.2005 is hereby quash and set aside. 13. Record and proceedings be sent back forthwith to the concerned court.