Ajit Rameshkumar Patni And ... vs Dr. Vijay Sarathi S/O ...
2017 Latest Caselaw 1332 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                Civil Revision Application No. 34 of 2017


 1.      Ajit Rameshkumar Patni,
         aged 56 years,
         occupation - business,


 2.      Aditya Ajit Patni,
         aged about 26 years,
         occupation - business,

         both residents of Camp Road,
         Patni Gas Agency,
         Pulgaon, Distt. Wardha.            .....         Applicants
                                                     Original Defts.

                                  Versus


 Dr. Vijay Sarathi son of
 Suryanarayana Varanasi,
 aged 57 years,
 occupation - Service,
 resident of Mill Road,
 Pulgaon, Distt. Wardha.                    .....   Non-Applicant.
                                                    Org. Plff.




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                               *****
 Mr. A.C. Dharmadhikari, Adv., for the Applicants.

 Mr. Dinesh Sharma, Adv., for the Non-applicant.

                                            *****



                                     CORAM :            A.S. CHANDURKAR, J.

               Arguments heard on                   :   22nd March, 2017


         Judgment pronounced on                     :   31st March, 2017


 J U D G M E N T:

01. The order passed by the trial Court on the preliminary issue

holding that it had jurisdiction to entertain the suit filed by the non-

applicant is the subject matter of challenge in this Civil Revision

Application at the instance of the defendants.

02. It is the case of the non-applicant-plaintiff that he is in

service of Suvalal Patni Arts & Commerce College, Pulgaon, which is

being run by Jawahar Education Society, Pulgaon. The plaintiff was

holding the post of Principal since October, 2010. According to him,

the applicants - defendants without being members of the

management were restraining the plaintiff from discharging his duties

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as Principal. On 4th July, 2016, the defendants entered the office of the

plaintiff and forced him to sign a letter of resignation from the post of

Principal. Despite his protestations, the plaintiff was compelled to sign

the said document. The plaintiff immediately lodged a report in that

regard with the police authorities. He thereafter filed a suit for

declaration that the alleged Letter of Resignation as well as the leave

application obtained by the defendants by force on 4 th July, 2016 were

null and void and for restraining the defendants from disturbing the

plaintiff from discharging his duties as Principal of the College.

03. On being served with the suit summons, the defendants

raised a preliminary objection to the tenability of the suit under

provisions of Section 9A of the Code of Civil Procedure, 1908 [for short,

"the Code"], on the ground that according to the plaintiff, his

resignation had been forcibly obtained by the defendants and against

such an action, an appeal under Section 59 of the Maharashtra

Universities Act, 1994 [for short, "the said Act"] was maintainable.

According to them, the Civil Court had no jurisdiction to entertain the

suit. This application was opposed by the plaintiff and on 30 th July,

2016, the trial Court directed framing of a preliminary issue as regards

jurisdiction of the Civil Court to entertain the suit.

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04. The defendants examined defendant no.1 with regard to the

aforesaid preliminary issue. He was cross-examined by the plaintiff.

The plaintiff did not lead any evidence. The trial Court on consideration

of the respective contentions held that the plaintiff had a right to

withdraw the notice of resignation before it was accepted. On that

count, the relationship between the parties as employer and employee

was not severed, due to which there was no cause of action to file an

appeal under Section 59 of the said Act before the University & College

Tribunal. On that basis, the preliminary issue was answered by

holding that Civil Court had jurisdiction to entertain the suit. Being

aggrieved, the defendants have filed this Civil Revision Application.

05. Shri A.C. Dharmadhikari, learned counsel for the defendants,

submitted that according to the prayers made in the suit filed by the

plaintiff, it was clear that the plaintiff was seeking a declaration that

the alleged letter of resignation dated 4 th July, 2016 was null and void.

In effect, the plaintiff was seeking adjudication on the validity of the

act of otherwise termination of his services. He submitted that in so

far as reliefs that could be sought under Section 59 of the said Act

were concerned, the Civil Court had no jurisdiction to go into those

questions. It was urged that as the trial Court had framed a

preliminary issue and the defendants had also led evidence, their

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defence as raised also deserves to be taken into consideration while

deciding the issue of jurisdiction. He was critical of the fact that the

Civil Court had entered into merits of the case pleaded by the plaintiff

and in that process after taking into consideration irrelevant facts had

assumed jurisdiction. According to him, the nature of relief sought by

the plaintiff clearly ousted the jurisdiction of the Civil Court as such

relief could be prayed for only before the forum provided under

Section 59 of the said Act. In support of his submissions, he placed

reliance on the following decisions:-

[a] Satyawadi Ganpatrao Pimple & others Vs. Aruna Ganpatrao Narwade & another [2000 (2) Mh. L.J.

               322],


 [b]           St.      Ulai    High     School      &      another          Vs.
               Devendraprasad          Jagannath     Singh       &    another
               [2007 (1) Mh. L.J. 597], and


 [c]           Dr.Meena        Laxman    Kapashikar        Vs.     The     Vice
               Chancellor,      Rashtra       Sant    Tukdoji        Maharaj

Nagpur Unviersity &others [2012 (5) Mh. L.J. 951].

He, thus, submitted that the order passed by the trial Court was liable

to be set aside.

06. Shri Dinesh Sharma, learned counsel for the plaintiff

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supported the impugned order. According to him, there was no cause

of action for the plaintiff to approach the University & College Tribunal

as no relief that could be prayed for under Section 59 of the said Act

was sought by the plaintiff. He submitted that the plaintiff was

disputing the status of the defendants who were posing themselves to

be the "management" as defined under the said Act. According to

him, in the proceedings before the Joint Charity Commissioner, the

status of the defendants as trustees had not been established. As

there was no action taken by the "management" under the said Act,

there was no question of seeking relief under Section 59 of the said

Act. He then submitted that with the withdrawal of alleged letter of

resignation, the relationship between the parties of employer and

employee subsisted and hence relief as prayed for in the suit could

only be sought before the Civil Court. He further submitted that even

in case of apprehended termination of services, the jurisdiction of the

Civil Court is preserved and therefore, the plaintiff had rightly

approached the Civil Court as he had the cause of action to do so. He

also referred to the leave application dated 4 th July, 2016 to indicate

that same had also been forcibly obtained. In the aforesaid facts, it

was submitted that the Civil Court rightly held that it had the

jurisdiction to entertain the suit and its jurisdiction was not barred in

view of provisions of Section 59 of the said Act. He, therefore,

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submitted that in absence of any jurisdictional error, there was no case

made out to interfere with the order passed by the trial Court. He

placed reliance upon the following decisions in support of his

submissions:-

[a] Municipal Corporation of Delhi Vs. Dinesh Kumar Sangal [Writ Petition © No. 2125/10; decided on 26th March, 2010 by Delhi High Court [Coram : Anil Kumar & Mool Chand Gar, JJ.],

[b] Marathwada University Vs. Sheshrao Balwant Rao Chavan [AIR 1989 SC 1582],

[c] College of Engineering Vs. Asmita Basole (Mrs.) & another [1987 Mh. L.J. 676],

[d] Srikantha S.M. Vs. Bharath Earth Movers Ltd.

[(2005) 8 SCC 314],

[e] Peoples Welfare Society, Nagpur Vs. Second Labour Court, Nagpur & others [1998 (1) Mh. L.J. 707],

[f] Rakesh Rai Vs. M/s. National Aviation Co. of India & another [Writ Petition No. 287/2003; decided on 8th July, 2013 by Bombay High Court [Coram V.M. Kanade & Smt. R.P. Sondurbaldota, JJ.],

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07. I have heard the learned counsel for the parties at length

and I have given due consideration to their respective submissions.

08. The issue of jurisdiction has been decided by the trial Court

after such issue was framed as a preliminary issue. The parties were

given liberty to lead evidence in that regard and such evidence was led

by the defendants. The objection to jurisdiction having been raised

under the provisions of Section 9-A of the Code and same having been

answered after framing a preliminary issue by granting liberty to the

parties to lead evidence, the scope of consideration by the trial Court

while answering such issue would be distinct from the adjudication

which is required to be done while considering such objection raised

under provisions of Order-VII, Rule 11 of the Code. In other words,

besides the pleadings of the plaintiff, the defence raised by the

defendants and evidence, if any, led by the parties would have to be

taken into consideration while answering the preliminary issue. It is

not only the plaint averments, but even the defence raised by the

defendants that would have to be taken into consideration while

deciding the issue of jurisdiction.

09. Before considering the challenge to the impugned order, the

settled legal position with regard to the parameters of exclusion of

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jurisdiction of the Civil Court in view of provisions of Section 59 of the

said Act would have to be noted. It may be stated that the provisions

of Section 59 (1) of the said Act in so far as it provides the

contingencies in which an appeal can be preferred are in pari materia

with the provisions of Section 9 (1) of the Maharashtra Employees of

Private Schools (Conditions of Service) Regulation Act, 1977. The Full

Bench of this Court in St. Ulai High School & another [supra] while

considering the question as to the bar of jurisdiction of the Civil Court

to entertain matters in relation to subjects falling under provisions of

Section 9 (1) of that Act held in paragraph 13 (vi) as under:-

"13. .............................................................................. ............................

(vi) The Legislature having provided for a remedy before the Tribunal only in respect of the subjects spelt out in clauses (a) and (b) of sub-section (1) of Section 9, in those cases the jurisdiction of the Civil Court is impliedly barred. The jurisdiction of the Civil Court is barred to the extent to which the Legislature has spoken. In other areas which are not covered by clauses

(a) and (b) of sub-section (1) of Section 9, the remedy of an appeal before the Tribunal is not available and hence, the jurisdiction of the Civil Court is not barred."

A grievance with regard to otherwise termination would

include a grievance that forcible resignation of an employee has been

obtained by the management. This has been held by the Division

Bench in Shriram Swami Shikshan Sanstha Vs. Education

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Officer, Zilla Parishad, Nagpur & another [1984 Mh. L.J. 31]. In

Shaikh Abdul Rahim Nabi Vs. The Anjuman-I-Islam & others

[2012 (4) Mh. L.J. 280], it has been held that the School Tribunal has

jurisdiction to consider and adjudicate upon the aspect of resignation

as well as its acceptance. An adjudication upon the offer by a person

to resign implies an adjudication upon its acceptance also. In Hindi

Vidya Bhavan, Mumbai & others Vs. Presiding Officer, School

Tribunal, Mumbai & others [2007 (6) Mh. L.J. 563], it was held that

the School Tribunal can decide the issue with regard to the relationship

between the appellant and the institution as employee and employer

in an appeal filed under Section 9 of that Act. In Dr. Meena Laxman

Kapshikar [supra], it was held that under Section 59 of the said Act, an

appellate forum is provided for an employee who is aggrieved by the

predatory action of the Management in snapping the relationship of

master and servant by virtue of an act of "otherwise termination".

10. Thus, on the basis of the aforesaid legal premise, the scope

of examination of the question as to whether the plaintiff had allegedly

issued resignation letter dated 4th July, 2016 and further whether such

alleged resignation letter was acted upon by the defendants is a

matter that can be only gone into by the University & College Tribunal

under Section 59 of the said Act. Similarly, the question as to whether

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the relationship of employer and employee continues on account of

withdrawal of the offer of resignation, as alleged, can also be

examined by the Tribunal under Section 59 of the said Act. The bone

of contention between the parties is the alleged act of the defendants

of forcibly obtaining the resignation of the plaintiff. Whether the

defendants fall within the purview of the definition of the expression

"management" as defined by Section 2 (20) of the said Act can also

be examined in proceedings under Section 59 of the said Act. In other

words, all the questions sought to be raised by the plaintiff that have

given him a cause of action to approach the Civil Court can only be

answered by the Tribunal under Section 59 of the said Act. In that

view of the matter, I am of the opinion that the jurisdiction of the Civil

Court to entertain the suit filed by the plaintiff is clearly barred in view

of provisions of Section 59 of the said Act.

11. As far as the decisions relied upon by the learned counsel

for the plaintiff are concerned, the same touch the merits of the

dispute between the parties. At this stage, while only answering the

issue of jurisdiction, it is not necessary to venture into that area which

exercise can be done by the Tribunal under Section 59 of the said Act.

The ratio of the decision in People's Welfare Society, Nagpur [supra]

cannot be made applicable to the facts of the present case, inasmuch

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as the employee therein was a member of the non-teaching staff and

in that context, his approaching the Labour Court for challenging his

threatened dismissal from service was held to be amenable to the

jurisdiction of the Labour Court. In the present case, the plaintiff is

holding the post of Principal and the dispute is with regard to

"otherwise termination" of the services of the plaintiff. In any event,

the plaintiff could not have approached the Labour Court for seeking

the relief that he has sought in the Civil Suit. The law with regard to

the manner of tendering resignation and its acceptance is also not

required to be gone into at this stage when the preliminary issue of

jurisdiction of the civil Court is being examined. The legality or

otherwise of the alleged letter of resignation and its acceptance can be

raised and considered before the Tribunal under Section 59 of the said

Act.

12. Thus, as a sequel to the aforesaid discussion, the order

passed by the trial Court holding that it had jurisdiction to decide the

civil suit cannot be sustained. The trial Court while deciding said

preliminary issue misdirected itself by restricting its consideration only

to the case of the plaintiff and not considering the stand of the

defendants especially when it was deciding the preliminary issue with

regard to jurisdiction. It also attempted to enter into the merits of the

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respective stands of the parties when the same was not necessary at

this preliminary stage. The law referred to herein above on the

question of jurisdiction of the civil Court is against the plaintiff. It is,

therefore, held that the trial Court has no jurisdiction to entertain the

suit filed by the plaintiff. Accordingly, the following order is passed:-

ORDER

[a] The order passed by the trial Court while answering the preliminary issue in Regular Civil Suit No. 40 of 2016 dated 7th February, 2017 is quashed and set aside. It is held that the trial Court has no jurisdiction to entertain Regular Civil Suit No. 40 of 2016 as the jurisdiction to consider the prayers made therein lies with the University & College Tribunal under Section 59 of the said Act. Regular Civil Suit No. 40 of 2016 accordingly stands dismissed with no order as to costs.

[b] It is open for the non-applicant to approach the University & College Tribunal under Section 59 of the said Act to seek the reliefs as sought in the civil suit. If such appeal is filed within a period of four weeks from today, it shall be entertained on merits without requiring the non-applicant to seek

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condonation of delay.

[c] It is clarified that observations made in this judgment are only for deciding the preliminary issue of jurisdiction and same shall not be considered as an expression on merits of the dispute between the parties. The proceedings in that regard, if initiated by the non-applicant, shall be decided on its own merits and in accordance with law.

12. The Civil Revision Application is allowed with no order as to

costs.

Judge

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