Karnataka High Court
M/S Kle Society vs Dr (Ms) K S Shantha on 11 February, 2025
-1- R.F.A.NO.1159/2006
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 11TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR FIRST APPEAL NO.1159 OF 2006
BETWEEN
1 . M/S KLE SOCIETY,
COLLEGE ROAD,
BELGAUM-591010
REP. BY ITS CHAIRMAN
2 . KLE SOCIETY'S
JAWAHARLAL NEHRU MEDICAL COLLEGE,
BELGAUM 590 010,
BY ITS PRINCIPAL.
...APPELLANTS
(BY SRI. C.K. SUBRAMANYA, ADV., FOR
SRI. MALLIKARJUNASWAMY B. HIREMATH, ADVOCATE)
AND
DR. (MS.) K.S. SHANTHA,
AGED ABOUT 66 YEARS,
FIRST FLOOR, HERWADKAR BUILDING,
GONAHALLI GALLI, BELGAUM-591002,
...RESPONDENT
VN (BY SRI. M.V. LATTI, ADVOCATE FOR
BADIGER SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)
Digitally signed
by V N BADIGER
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
Location: High
Court of
Karnataka, CODE OF CIVIL PROCEDURE, 1908, SET ASIDE THE JUDGMENT AND
Dharwad Bench
Date:
2025.02.12
15:46:57 +0530 DECREE DATED 31.01.2006 PASSED BY THE PRINCIPAL CIVIL JUDGE
(SENIOR DIVISION), BELGAUM IN O.S.NO.360/2002 & ETC.,
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
06.02.2025 COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS
DAY, COURT DELIVERED THE FOLLOWING:
-2- R.F.A.NO.1159/2006
CORAM: THE HON'BLE MR. JUSTICE E.S. INDIRESH
CAV JUDGMENT
This appeal is preferred by the defendants under Section
96 of CPC, challenging the judgment and decree dated
31.01.2006 in OS No.360/2002 on the file of Principal Civil
Judge Senior Division, Belgaum, decreeing the suit of the
plaintiff in part.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. Facts of the case in nutshell are that, it is the case
of the plaintiff before the Trial Court that the plaintiff is an
employee of the defendants-educational institution, having
been appointed as a Lecturer in Bacteriology of Pathology
Department of defendant No.2-college run by the defendant
No.1-Society. It is the case of the plaintiff that, the plaintiff
has joined her duties on 01.07.1966 with the pay-scale of
Rs.350-25-500-30-800+NPA of Rs.75/- per month and
dearness allowance of Rs.81/- on par with the Government
Servant. During the course of her service, the plaintiff was
promoted as Asst. Professor of Microbiology of defendant No.2-
College. The plaintiff attained the age of superannuation on
31.01.2000. It is further stated in the plaint that during the
course of the service of the plaintiff with the defendant No.2-
College, the salary was paid as per the Government Servant
and also the plaintiff was permitted to entitle for 15 days casual
leave and one month earned leave every year, so also medical
leave etc., which is permissible to the State Government
employees also. It is also stated in the plaint that the State
Government has periodically enhanced the dearness allowance
to its employees, however, same was denied to the plaintiff by
the defendant-Institution. It is also contended in the plaint
that the plaintiff had earned leave to her credit and same was
surrendered at the time of attaining superannuation however,
the said benefit of earned leave encashment was denied to the
plaintiff by the defendant-Institution. It is also stated in the
plaint that the plaintiff has been denied benefit of HRA and CCA
on par with the State Government Employees. The plaintiff
made a claim for arrears of aforementioned benefits and same
was rejected by the defendant-Institution at the time of
retirement of the plaintiff. Hence, the plaintiff has preferred
O.S.No.360/2002 against the defendant-Institution, seeking
relief of recovery of money as the plaintiff is entitled for
difference of Dearness Allowance, House Rent Allowance,
Earned Leave and City Compensatory Allowance on par with the
Government employees.
4. After service of summons, the defendant-Institution
entered appearance and filed detailed written statement
admitting that the plaintiff was working in the defendant No.2-
College, however, denied the averments made by the plaintiff
that the plaintiff was getting salary on par with Government
pay-scales, which have been given to the Government
employees, who are holding civil posts. It is the specific case of
the defendants that the plaintiff is not entitled for difference of
Dearness Allowance, House Rent Allowance, Earned Leave and
City Compensatory Allowance on par with the Government
employees. It is also stated in the written statement that the
plaintiff was working in a private unaided institution under the
management of defendant No.1-Society. The defendant No.1-
Society has its own rules and regulations regarding service
conditions of its employees and therefore, the same cannot be
treated on par with the employees of the State Government
and accordingly, it is stated in the written statement that the
plaintiff is bound by the service conditions of the defendant
No1-Society. It is also contended by the defendants that the
suit is not maintainable and that apart, suit is barred by law of
limitation. Hence, the defendants sought for dismissal of the
suit.
5. The Trial Court, based on pleadings on record, has
formulated following issues which is extracted below:
1. Whether the plaintiff proves that she
was getting her salary and other benefits like
surrender leave benefit and dearness allowance
etc., on par with the Government pay scales and
orders from time to time as alleged?
2. Whether the plaintiff proves that the
defendants were due to her Rs.20,000/-,
Rs.15,000/- and Rs.78,486/- towards
D.A.difference, D.A. arrears and surrender leave
benefit as alleged?
3. Whether the defendants prove that the
defendant Society has its won rules and
regulations regarding pay scales and dearness
allowances and hence, the pay scale and D.A.
declared by the Government are not binding on
the defendant society as alleged?
4. Whether the defendants prove that the
plaintiff has consented for the scales given by
the defendants society as alleged?
5. Whether the defendants prove that the
suit is barred by limitation?
6. Whether the plaintiff is entitled to
recover a suit claim of Rs.1,13,486/- from the
defendants together with cost and future
interest at 18% p.a.?
6. In order to establish their case, plaintiff was
examined as PW1 and produced 03 documents, which were
marked as Ex.P1 to P3. On the other hand, defendants have
examined one witness as DW1 and produced 01 document,
which was marked as Ex.D1.
7. The Trial Court after considering the material on
record by its judgment and decree dated 31.01.2006 decreed
the suit in part holding that the plaintiff is entitled for sum of
Rs.1,13,486/-, from the defendants with interest at 9% per
annum from the date of the suit till its realization. Feeling
aggrieved by the same, the defendants have preferred this
Regular First Appeal under Section 96 of CPC.
8. I have heard Sri. Subramanya, the learned counsel
appearing on behalf of Mallikarjunaswamy B Hiremath for the
appellants and Sri. M. V. Latti, learned counsel on behalf of Sri.
Mrityunjaya Tata Bangi, the learned counsel appearing for the
respondent.
9. Sri. Subramanya, learned Counsel appearing for the
appellant contended that the Trial Court has committed an
error in decreeing the suit of the plaintiff without considering
the fact that the defendant No.2-Institution is an unaided
education institution covered under the provisions of Karnataka
Education Act, 1983 (hereinafter referred to as "the Act"). He
further emphasized that as the plaintiff is an employee of the
education institution and as such, the plaintiff has to approach
the competent authority under section 131, 132 and 134 of the
Act. Referring to Rule 5 of the Karnataka Private Education
(Discipline and Control) Rules 1978 (hereinafter referred to as
"Rules"), it is contended by the learned counsel for the
appellants that the pay-scale of the employee of a private
educational institution shall be corresponding to the post in the
Government Education Institution, however certain benefits like
DA, CCA, HRA and other allowances cannot be equated with
that of the government employees. It is also argued by the
learned counsel appearing for the appellants that the
employees of the appellant-institution were appointed as per
the rules and regulations of the appellant-society and therefore
they cannot be equated with the government servants, who
were governed under Karnataka Civil Service Rules (for short
"KCSR"). He also refers to the appointment orders issued by
the appellant-institution in favour of the respondent-plaintiff
wherein it is clearly stated that the service rules and
regulations of the appellant-institution is applicable to the
service condition of the employees and therefore, sought for
interference of this Court.
10. Nextly, it is contended by Sri. Subramanya, learned
counsel that, the Trial Court has committed an error in shifting
the burden on the defendants-appellants herein to prove the
entitlement of the respondent-plaintiff, which is quite strange
and contrary to law. Hence, the learned counsel appearing for
the appellants sought for interference of this Court.
11. In order to buttress his arguments, he refers to the
judgment of this Court in W.P.No.201481/2021 disposed of on
10.02.2022, confirmed by the Division Bench of this Court in
W.A.No.200040/2022 disposed of on 01.07.2022 and argued
that, the relief sought for by the plaintiff in the suit cannot be
accepted in this appeal. He also refers to the judgment of the
Hon'ble Supreme Court in the case of The Premier
Automobiles Ltd., v. Kamlekar Shantaram Wadke1 and
contended that the suit itself is not maintainable before the
Civil Court and accordingly sought for setting aside the
impugned judgment and decree passed by the Court below. He
also refers to the judgment of the Hon'ble Supreme Court in
AIR 1975 SC 2238
the case of Sushil Kumar Mehta v. Gobind Ram Bohra
(Dead) through his LRs2 and argued that the judgment
rendered by a Court having no jurisdiction is nullity in law. He
also refers to the judgment of the Hon'ble Supreme Court in
the case of Dr.Jagmittar Sain Bhagat and others v. Dir.
Health Services, Haryana and others3 and in the case of
State of Punjab v. Labour Court Jullunder and others4 and
argued that, if a Special Act is enacted for determining the
rights of the parties and aggrieved person under such
circumstances, shall be relegated to avail the remedy provided
under a statutory enactment and therefore, suit is not
maintainable before the Civil Court and accordingly, sought for
interference of this Court.
12. Per contra, Sri. M.V. Latti, learned counsel on behalf
of Sri.Mrityunjay Tata Bangi learned counsel appearing for the
respondent sought to justify the impugned judgment and
decree passed by the Court below.
13. It is the categorical statement of the learned
counsel for the respondent that, the appellant-institution has
satisfied the judgment and decree in some of the cases, in
(1990) 1 SCC 193
AIR 2013 SC 3060
AIR 1979 SC 1991
execution petitions and some of them were closed as fully
satisfied, however, challenging the judgment and decree
passed by the Court below in some of the cases indifferently
and therefore, he argued that the appeal itself is not
maintainable before this Court. It is also the submission made
by the learned counsel that the suit is maintainable as the
plaintiff is entitled for difference of the benefits on par with the
government servants and as such, the learned counsel
appearing for the respondent argued that the suit for recovery
of money is maintainable before the Civil Court and the
plaintiff/respondent cannot be relegated to the statutory
authorities for remedy provided thereunder. It is the principal
submission of the learned counsel for the respondent that the
appellants were discriminating the employees and therefore,
submitted that the appeal requires to be dismissed.
14. In order to buttress his arguments learned counsel
appearing for the respondent places reliance on the judgment
of this Court in the case of S.S.Anand and others v. The
Management of Mahatma Gandhi Vidya Peeta (Regd.),
Bangalore and another5 and in the case of Karnataka
State Board Transport Corporation, Bangalore v.
1998 (3) K.L.J. 293
Karnataka State Transport Authority, Bangalore and
others6 and argued that there is no interference called for in
this appeal as the Trial Court after appreciating the material on
record in the right perspective passed the judgment and decree
impugned in this appeal and the same requires to be affirmed.
15. In the light of the submission made by the learned
counsel for the parties, the points for consideration are as
follows:
i) Whether the suit filed by the plaintiff is
maintainable before the Civil Court?
ii) Whether the plaintiff is entitled for difference
of benefits on par with the government
employees?
iii) Whether the judgment and decree passed by
the Court below requires interference?
16. In the light of the submissions made by the learned
counsel appearing for the parties, it is the case of the plaintiff
that they were working in the appellant-institution and as such
claims salary and other benefits on par with the government
servants. It is not in dispute that the plaintiff has been
appointed by the defendant No.1-Society in terms of the bye-
2000 (3) Kar.L.J., 501
law and the regulation of the defendant No.1-Society. It is also
not in dispute that the 2nd defendant-institution is an unaided
institution. In this regard, learned counsel appearing for the
appellant herein argued that the suit itself is not maintainable
before the Civil Court. Undoubtedly, the plaintiff is not a
government servant and therefore, in the event if the plaintiff
claim benefits on par with government servant and if the
plaintiff is appointed and governed by KCSR, then neither the
suit nor the provisions under the Karnataka Education Act is
applicable to the case of the plaintiff and the plaintiff has to
approach the Karnataka Administrative Tribunal constituted
under Article 323-A of the Constitution of India for redressal of
her grievance. Whether the claim made by the plaintiff in a civil
nature under Section 9 of CPC is to be ascertained in the light
of the arguments advanced by the learned counsel for the
parties. It is well established principle in law that a decree
passed by a Court without jurisdiction is nullity in law. At this
stage, it is relevant to extract the observation made by the
Hon'ble Supreme Court in the case of Sushil Kumar Mehta
(supra), paragraph 5 to 12 held as follows:
"5. The other provisions are not necessary. The sole
ground raised by the landlord for eviction was that
the appellant had committed default in the payment
of rent and thereby had became liable for ejectment.
Accordingly, he issued a notice under Section 106 of
the Transfer of Property Act determining the tenancy
and laid this suit. Section 13 gives the right to the
landlord to seek eviction of the tenant for default in
the payment of rent. The Act provides the protection
of continued tenancy and remedy of ejectment for
breach of covenants in the lease and other statutory
grounds as provided. It provides that the remedy and
the forum and the decree of ejectment passed by the
Controller or the appellate authority or the revisional
authority or confirmation thereof either in appeal or
revision is final under the Act. Thereby the exclusive
jurisdiction to take cognizance of the cause of action
for ejectment of the tenant from a building or rented
land situated in urban areas is governed by the
provisions of the Act and is exclusively to be dealt
with under Section 13 of the Act. By necessary
implication the jurisdiction of the Civil Court
under Section 9 of C.P.C. is excluded. It is
undoubtedly true that open land is a part of the
frontage of the shop and belonged to the municipality
which the landlord had taken on lease from the
Municipality. As regards the municipal land, the
landlord was a lessee of the Municipal Committee.
But on construction of the building covering a portion
of the municipal land the landlord became landlord
and the appellant his tenant for the purposes of the
Act. This view was held by the full Bench of the
Punjab and Haryana High Court in Hari Parshad
Gupta v. Jitender Kumar Kaushik, [1982] Vol. 84,
Punjab Law Reporter, 150. We agree with the view.
Thereby though there is a notification issued by the
State Government exempting the lands belonging to
Gurgaon Municipality from the provisions of the Act,
the building of the respondent does not get exempted
from the provisions of the Act. It is the finding of the
forums below that the shop in question stands mainly
on the land of the landlord and a small portion is
located on municipal land. Therefore, we are of the
view that the building was governed by the provisions
of the Act and the exemption accorded by the
Government under Section 3 was not attracted to the
premises. In Sadhu Singh v. District Board,
Gurdaspur & Anr., [1962] Punjab Law Reporter, Vol.
64, 1 the question was whether to the reconstructed
building governed by the provisions of East Punjab
Urban Rent Restriction Act the exemption
under Section 3 applied. It was held to be so by the
Division Bench. But the present facts are different.
6. In Barrachlough v. Brown, [1897] A.C. 615 the
House of Lords held that when a special statute gave
a right and also provided a forum for adjudication of
rights, remedy has to be sought only under the
provisions of that Act and the common law court has
no jurisdiction.
7. In Doe v. Bridges, [1831] 1 B & Ad. 847 the
famous and oft quoted words of Lord Tenterdan,
occur:
"Where an Act creates an obligation and enforces
the performance in a specified manner, we take it
to be a general rule that performance cannot be
enforced in any other manner."
8. This statement of law was approved not only by
the House of Lords in several cases, but also by this
Court in Premier Automobiles v. K.S. Wadke, [1976]
1 SCR 427 where this Court was called upon to
consider whether the Civil Court can decide a dispute
squarely coming within the provisions of
the Industrial Disputes Act. While considering that
question, this Court laid down four propositions and
third of them is relevant for consideration here. It is
as follows:
"(3) If the industrial dispute relates to the
enforcement of a right or an obligation created
under the Act, then the only remedy available to
the suitor is to get an adjudication under the Act."
9. Thus on construction of relevant provisions of the
Act and in the light of the position in law it must be
held that the provisions of Section 13 of the Act
applies to the building leased out to the appellant by
the landlord and the Controller was the competent
authority to pass a decree of ejectment against the
appellant and the Civil Court lacked inherent
jurisdiction to take cognizance of the cause and to
pass a decree of ejectment therein. The next
question is whether the impugned decree is a nullity
and whether the plea can be raised in execution and
further whether the decree in the suit does not
operate as res judicata.
10. In Kiran Singh & Ors. v. Chaman Paswan & Ors.,
AIR 1954 SC 430 the facts were that the appellant
had undervalued the suit at Rs.2,950 and laid it in
the court of the Subordinate Judge, Monghyr for
recovery of possession of the suit lands and mesne
profits. The suit was dismissed and on appeal it was
confirmed. In the second appeal in the High Court the
Registry raised the objection as to valuation
under Section 11. The value of the appeal was fixed
at Rs.9,980. A contention then was raised by the
plaintiff in the High Court that on account of the
valuation fixed by the High Court the appeal against
the decree of the court of the Subordinate Judge did
not lie to the District Court, but to the High Court and
on that account the decree of the District Court was a
nullity. Alternatively, it was contended that it caused
prejudice to the appellant. In considering that
contention at page 121, a four Judge Bench of this
Court speaking through Vankatarama Ayyar, J. held
that:
"It is a fundamental principle well-established that
a decree passed by a Court without jurisdiction is
a nullity, and that its invalidity could be set up
whenever and wherever it is sought to be enforced
or relied upon, even at the stage of execution and
even in collateral proceedings. A defect of
jurisdiction, whether it is pecuniary or territorial,
or whether it is in respect of the subject-matter of
the action, strikes at the every authority of the
Court to pass any decree, and such a defect
cannot be cured even by consent of parties. If the
question now under consideration fell to be
determined only on the application of general
principles governing the matter, there can be no
doubt that the District Court of Monghyr was
coram non judice, and that its judgment and
decree would be nullities."
11. On merits it was held that since the appellant
himself had invoked the jurisdiction of the Civil Court
with under valuation, the objection as to jurisdiction
was not available by operation of Section 99 of the
Code and as to the territorial jurisdiction he was
precluded by operation of Section 21 of C.P.C.; and
on such premise it was held that the decree of the
District Court could not be treated to be a nullity and
person who invoked the jurisdiction cannot plead
prejudice to himself by his own act.
12. This Court has held that it is a well established
principle that a decree passed by a court without
jurisdiction is a nullity and the plea can be set up
whenever and wherever the decree is sought to be
enforced or relied upon, and even at the stage of
execution or in collateral proceedings."
17. In the case of Dr.Jagmittar Sain Bhagat (supra),
paragraph 8 and 9 reads as follows:
"8. In Sushil Kumar Mehta v. Gobind Ram Bohra
(Dead) Thr. Lrs., (1990) 1 SCC 193, this Court, after
placing reliance on large number of its earlier
judgments particularly in Premier Automobiles Ltd. v.
K.S. Wadke & Ors., (1976) 1 SCC 496; Kiran Singh v.
Chaman Paswan, AIR 1954 SC 340; and Chandrika
Misir & Anr. v. Bhaiyalal, AIR 1973 SC 2391 held,
that a decree without jurisdiction is a nullity. It is a
coram non judice; when a special statute gives a
right and also provides for a forum for adjudication of
rights, remedy has to be sought only under the
provisions of that Act and the Common Law Court
has no jurisdiction; where an Act creates an
obligation and enforces the performance in specified
manner, "performance cannot be forced in any other
manner."
9. Law does not permit any court/tribunal/
authority/forum to usurp jurisdiction on any ground
whatsoever, in case, such an authority does not have
jurisdiction on the subject matter. For the reason that
it is not an objection as to the place of suing;, "it is
an objection going to the nullity of the order on the
ground of want of jurisdiction". Thus, for assumption
of jurisdiction by a court or a tribunal, existence of
jurisdictional fact is a condition precedent. But once
such jurisdictional fact is found to exist, the court or
tribunal has power to decide on the adjudicatory facts
or facts in issue. (Vide: Setrucharlu Ramabhadra Raju
Bahadur v. Maharaja of Jeypore, AIR 1919 PC
150; State of Gujarat v. Rajesh Kumar Chimanlal
Barot & Anr., AIR 1996 SC 2664; Harshad Chiman Lal
Modi v. D.L.F. Universal Ltd. & Anr., AIR 2005 SC
4446; and Carona Ltd. v. M/s. Parvathy Swaminathan
& Sons, AIR 2008 SC 187)."
18. It is also relevant to extract the declaration of law
by the Hon'ble Supreme Court in the case of State of Punjab
v. Labour Court, Jullundur (supra), paragraph 7 held as
follows:
"It is apparent that the Payment of Gratuity
Act enacts a complete code containing detailed
provisions covering all the essential features of a
scheme for payment of gratuity. It creates the right
to payment of gratuity, indicates when the right will
accrue, and lays down the principles for quantification
of the gratuity. It provides further for recovery of the
amount, and contains an especial provision that
compound interest at nine per cent per annum will be
payable on delayed payment. For the enforcement of
its provisions, the Act provides for the appointment of
a controlling authority, who is entrusted with the task
of administering the Act. The fulfillment of the rights
and obligations of the parties are made his
responsibility, and he has been invested with an
amplitude of power for the full discharge of that
responsibility. Any error committed by him can be
corrected in appeal by the appropriate Government
or an appellate authority particularly constituted
under the Act."
19. In this regard, it is relevant to extract the judgment
of the Hon'ble Supreme Court in the case of the Premier
Automobiles Limited (supra), wherein paragraph 9 and 23
of the judgment reads as under.
"9. It would thus be seen that through the
intervention of the appropriate government, of
course not directly, a very extensive machinery
has been provided for settlement and adjudication
of industrial disputes. But since an individual
aggrieved cannot approach the Tribunal or the
Labour Court directly for the redress of his
grievance without the intervention of the
Government, it is legitimate to take the view that
the remedy provided under he Acts is not such as
to completely oust the jurisdiction of the Civil
Court for trial of industrial disputes. If the dispute
is not an industrial dispute within the meaning
of section 2(K) or within the meaning of section
2A of the Act, it is obvious that there is no
provision for adjudication of such disputes under
the Act. Civil Courts will be the proper forum. But
where the industrial dispute is for the purpose of
enforcing any right, obligation or liability under the
general law or the common law and not a right,
obligation or liability created under the Act, then
alternative forums are there giving an election to
the suitor to choose his remedy of either moving
the machinery under the Act or to approach the
Civil Court. It is plain that he can't have both. He
has to choose the one or the other. But we shall
presently show that the Civil Court will have no
jurisdiction to try and adjudicate upon an industrial
dispute if it concerned enforcement of certain right
or liability created only under the Act.
In that event Civil Court will have no jurisdiction
even to grant a decree of injunction to prevent the
threatened injury on account of the alleged breach
of contract if the contract is one which is
recognized by and enforceable under the Act
alone.
23. To sum up, the principles applicable to the
jurisdiction of the Civil Court in relation to an
industrial dispute may be stated thus:
(1) If the dispute is not an industrial dispute,
nor does it relate to enforcement of any other
right under the Act the remedy lies only in the
civil court.
(2) If the dispute is an industrial dispute
arising out of a right or liability under the
general or common law and not under the Act,
the jurisdiction of the Civil Court is alternative,
leaving it to the election of the suitor
concerned to choose his remedy for the relief
which is competent to be granted in particular
remedy.
(3) If the industrial dispute relates to the
enforcement of a right or an obligation created
under the Act, then the only remedy available
to the suitor is to get an adjudication under the
Act.
(4) If the right which is sought to be enforced
is a right created under the Act such as
Chapter VA then the remedy for its
enforcement is either section 33C or the raising
of an industrial dispute, as the case may be."
20. It is also to be noted that, for the employees of the
private unaided institutions in Karnataka, the conditions of
service is regulated by provisions under Karnataka Education
Act and Rules made thereunder, and therefore, it is incumbent
upon the plaintiff to approach the statutory body under section
133 of the Karnataka Education Act and the relevant Rules
referred to above. It is also pertinent to mention here that, the
appellant No.1 is a society registered under the Karnataka
Societies Registration Act running various aided and unaided
institutions. The appellant No.2 is an unaided institution under
the control of appellant No.1-society and same is coming under
the provisions of Karnataka Education Act. The service
conditions of the employees of the private unaided education
institutions are governed under the said Act. Rule 5 of the
Rules reads as under:
"5. Scale of Pay : The scale of pay of an employee
of an institution shall not be lower than the scale
of pay of an employee of a corresponding post in
the government educational institutions."
21. This Court in Siddarth Education Society v.
Tumkur District Technical Institutions Non-teaching
Employees Union and others7 at paragraph 22 held as
follows:
"22. Though Rule 5 of the Rules 1978 provide that
the scale of pay of an employee of an Institution
ILR 2003 KAR 163
shall not be lower than the scale of pay of an
employee of a corresponding post in the
government educational institutions it does not ipso
facto mean that the benefit of DA, CCA, HRA, and
other allowances are to be paid to such employees
which non-teaching staff of the government
technical institutions are entitled to. Rule 5 only
provides for payment of scale of pay and it does not
refer to any allowances. Before a set of employees
could claim parity of pay scales on the principle of
equal pay for equal work it has to be shown by such
claimants that qualitatively and quantitatively the
work which they do is the same type and nature as
that of their counter parts whose pay scales are
pressed into service for getting the parity. Not only
that even educational qualifications must be
identical. It is well settled by a series of decisions
by the Supreme Court, different pay scales could be
prescribed for employees having different
educational qualifications. Therefore, even the
aforesaid doctrine of equal pay for equal work only
refers to pay and not to other allowances. In the
case of MAHATMA GANDHI VIDYA PEETA, this Court
was interpreting Rule 5 of Rules 1978 and it has
been held that the provisions of Rule 5 would
squarely apply to the petitioners who were working
as non-teaching employees of the respondent
society who are in the light of the said provision are
entitled to the pay scales that cannot be lower than
once admissible to the employees holding
corresponding posts in the government educational
institutions. Therefore, it is clear from the aforesaid
judgment also what the employees in private
educational institutions are entitled to is the pay
scales which are admissible to the employees
working in government institutions on equivalent
posts. That judgment is of no assistance to the
respondents to substantiate their claim for other
monetary benefits such as DA, HRA, CCA and other
allowances which are outside the purview of "the
pay"
22. It is also relevant to extract paragraph 21 of the
judgment of this Court in the case of the Karnataka Lingayat
Education Society and others v. Siddappa G Namba and
others8 it is held as follows:
"21. The claim of the respondents as per Rule 5 of the
Karnataka Private Educational Institutions (Discipline
and Control) Rules, 1978, which provides that the pay
of the un-aided educational institutions shall be at par
with the Government employees is also of no help to
the respondents. Such parity of pay does not talk of
allowances like Dearness Allowance, HRA, encashment
of leave, etc. The learned Single Judge of this Court
in Sri.Siddartha Education Society Vs. Tumkur District
Technical Institutions Non-Teaching Employees Union,
ILR 2003 (Kar.HC) 163, vide paragraph 22 quoted
above, made this position clear, but, it appears that
said judgment was not brought to the notice of the
Labour Court at the time of decision in the impugned
order passed by the Labour Court."
ILR 2017 KAR 5139
23. It is also relevant to extract the declaration of law
made in the case of Gadigayya and others v. K.L.E. Society
and others9, wherein paragraph 12 held as follows:
"12. With regard to the contention that the appellants
are entitled for pay and allowances on par with the
government employees is also untenable. The learned
Single Judge relying upon the decision of this Court in
the case of Sri. Siddartha Education Society Vs.
Tumkur District Technical Institutions Non-Teaching
Employees Union, ILR 2003 (Kar.HC) 163, has
answered the said issue i.e. private educational
institution employees are not entitled for monetary
benefits such as DA, HRA and other allowances on par
with the government educational institutions."
24. It is also relevant to follow the declaration of law
made by the Hon'ble Supreme Court in the case of Satimbla
Sharma & Others v. St. Paul Sr. Secondary School and
others10, paragraph 10 to 12 held as follows:
"10. In Frank Anthony Public School Employees'
Association v. Union of India & Ors11, relied on by
learned counsel for the appellants, the scales of pay
and other terms and conditions of service of teachers
and other employees of the Frank Anthony Public
School, New Delhi, which was a private unaided
2018 (4) AKR 90
AIR 2011 SC 2926
AIR 1987 SC 311
minority institution, compared very unfavourably with
those of their counterparts of the Delhi
Administration Schools and the Frank Anthony Public
School Employees' Association sought equalization of
their pay-scales and conditions of service with those
of teachers and employees of Government schools.
Sections 8 to 11 of the Delhi School Education Act
dealt with the terms and conditions of service of
employees of recognized private schools. Section
10 of the Delhi School Education Act provided that
the scales of pay and allowances, medical facilities,
pension, gratuity, provident fund and other
prescribed benefits of the employees of the
recognized private schools shall not be less than
those of the corresponding status in schools run by
the appropriate authority. Section 12 of the Delhi
School Education Act, however, provided that the
provisions of Sections 8 to 11 including Section
10 were not applicable to unaided minority
institutions. The case of teachers of Frank Anthony
Public School was that if Sections 8 to 11 were made
applicable to them, they would at least be as well off
as teachers and other employees of Government
schools. The Frank Anthony Public School Employees'
Association therefore challenged Section 12 of the
Delhi School Education Act as discriminatory and
violative of Article 14 of the Constitution and this
Court held that Section 12 of the Delhi School
Education Act insofar as it makes the provisions
of Sections 8 to 11 inapplicable to unaided minority
schools is discriminatory. This was thus a case in
which the employees of unaided minority institutions
were not given the benefits available to employees of
other private institutions under Sections
8, 9, 10 and 11 of the Delhi School Education Act
only on the ground that unaided minority institutions
enjoy autonomy of administration under Article
30(1) of the Constitution and this Court held that this
could not be a rational basis for differentiation of
service conditions, pay and other service benefits
between employees of unaided minority institutions
and the employees of other private schools and the
Court declared Section 12 as discriminatory. In other
words, the State by making a statutory provision
in Section 12 of the Delhi School Education Act which
was discriminatory, had violated the mandate to the
State under Article 14 of the Constitution not to deny
the equal protection of the laws within its territories.
This decision in the case of Frank Anthony Public
School Employees' Association v.Union of India &
Ors. (supra) does not assist the appellants in any
manner because the guarantee of equality, as we
have said, is not available against an unaided private
minority school.
11. We also do not think that the Court could issue a
mandamus to a private unaided school to pay the
salary and allowances equal to the salary and
allowances payable to teachers of Government
schools or Government aided schools. This is because
the salary and allowances of teachers of a private
unaided school is a matter of contract between the
school and the teacher and is not within the domain
of public law. In Sushmita Basu & Ors. v.
Ballygunge Siksha Samity & Others.12 , the
teachers of a recognized private school known as
Ballygunge Siksha Sadan in Calcutta filed a Writ
Petition in the High Court of Calcutta praying for
issuance of writ of mandamus directing the
authorities of the school to fix the salary of teaching
and non-teaching staff of the school and to remove
all anomalies in the scales of pay as recommended by
the Third Pay Commission as extended to other
Government aided schools and Government schools
and this Court held that in the absence of statutory
provision no such direction can be issued by the High
Court under Article 226 of the Constitution. Where a
statutory provision casts a duty on a private unaided
school to pay the same salary and allowances to its
teachers as are being paid teachers of Government
aided schools, then a writ of mandamus to the school
could be issued to enforce such statutory duty. But in
the present case, there was no statutory provision
requiring a private unaided school to pay to its
teachers the same salary and allowances as were
payable to teachers of Government schools and,
therefore, a mandamus could not be issued to pay to
the teachers of private recognized unaided schools
the same salary and allowances as were payable to
Government institutions.
12. In K. Krishnamacharyulu and Others vs. Sri
Venkateswara Hindu College of Engineering and
Another13, relied upon by the learned counsel for the
appellants, executive instructions were issued by the
(2006) 7 SCC 680
AIR 1998 SC 295
Government that the scales of pay of Laboratory
Assistants as non-teaching staff of private colleges
shall be at par with the government employees and
this Court held that even though there were no
statutory rules, the Laboratory Assistants as non-
teaching staff of private college were entitled to the
parity of the pay-scales as per the executive
instructions of the Government and the writ
jurisdiction of the High Court under Article 226 of
the Constitution is wide enough to issue a writ for
payment of pay on par with government employees.
In the present case, there are no executive
instructions issued by the Government requiring
private schools to pay the same salary and
allowances to their teachers as are being paid to
teachers of Government schools or Government aided
schools."
25. In the case of State of Maharashtra and
another v. Bhagwan and others in Civil Appeal No.7682 of
2021 disposed of on 10.01.2022 at paragraph 10.5 to 10.7
reads as under:
"10.5 In the present case, WALMI being an
autonomous body, registered under the Societies
Registration Act, the employees of WALMI are
governed by their own Service Rules and
conditions, which specifically do not provide for
any pensionary benefits; the Governing Council of
WALMI has adopted the Maharashtra Civil Services
Rules except the Pension Rules. Therefore, as such
a conscious policy decision has been taken not to
adopt the Pension Rules applicable to the State
Government employees; that the State
Government has taken such a policy decision in
the year 2005 not to extend the pensionary
benefits to the employees of the aided institutes,
boards, corporations etc.; and the proposal of the
then Director of WALMI to extend the pensionary
benefits to the employees of WALMI has been
specifically turned down by the State Government.
Considering the aforesaid facts and circumstances,
the High Court is not justified in directing the
State to extend the pensionary benefits to the
employees of WALMI, which is an independent
autonomous entity.
10.6 The observations made by the High court
that as the salary and allowances payable to the
employees of WALMI are being paid out of the
Consolidated Fund of the State and/or that the
WALMI is getting grant from the Government are
all irrelevant considerations, so far as extending
the pensionary benefits to its employees is
concerned. WALMI has to run its administration
from its own financial resources. WALMI has no
financial powers of imposing any tax like a State
and/or the Central Government and WALMI has to
depend upon the grants to be made by the State
Government.
10.7 Now, so far as the observations made by the
High Court that the amount available with WALMI
and deposited with E.P.F. towards the employee's
contribution itself is sufficient to meet the financial
liability of the pensionary benefits to the
employees and, therefore, there is no justification
and/or reasonable basis for the State Government
to refuse to extend the benefit of pension to the
retired employees of WALMI is concerned, it is to
be noted that merely because WALMI has a fund
with itself, it cannot be a ground to extend the
pensionary benefits. Grant of pensionary benefits
is not a one-time payment. Grant of pensionary
benefits is a recurring monthly expenditure and
there is a continuous liability in future towards the
pensionary benefits. Therefore, merely because at
one point of time, WALMI might have certain funds
does not mean that for all times to come, it can
bear such burden of paying pension to all its
employees. In any case, it is ultimately for the
State Government and the Society (WALMI) to
take their own policy decision whether to extend
the pensionary benefits to its employees or not.
The interference by the Judiciary in such a policy
decision having financial implications and/or
having a cascading effect is not at all warranted
and justified."
26. Following the declaration of law referred to above, I
am of the view that the defendants being a private unaided
institution, and as such, by necessary implication, the
Karnataka Education Act read with the Rules referred to above
is applicable to the case of the plaintiff and therefore,
jurisdiction of Civil Court under Section 9 of CPC is excluded to
claim the benefits as prayed for by the plaintiff in the plaint.
Hon'ble Supreme Court in the case of Dhulabhai and others
v. State of Madhya Pradesh and another14.
"32. Neither of the two cases of Firm of Illuri Subbayya
Chetty and Sons v. The State Of Andhra Pradesh15
or Kamala Mills Ltd vs State Of Bombay16 can be said
to run counter to the series of cases earlier noticed. The
result of this inquiry into the diverse views expressed in
this Court may be stated as follows :-
(1) Where the statute gives a finality to the orders of the
special tribunals the Civil Courts' jurisdiction must be
held to be excluded if there is adequate remedy to do
what the Civil Courts would normally do in a suit. Such
provision, however, does not exclude those cases where
the provisions of the particular Act have not been
complied with or the statutory tribunal has not acted in
conformity with the fundamental principles of judicial
procedure.
(2) Where there is an express bar of the jurisdiction of
the court, an examination of the scheme of the particular
Act to find the adequacy or the sufficiency of the
remedies provided may be relevant but is not decisive to
sustain the jurisdiction of the civil court.
Where there is no express exclusion the examination of
the remedies and the scheme of the particular Act to find
out the intendment becomes necessary and the result of
AIR 1969 SC 78
AIR 1964 SC 322
AIR 1965 SC 1942
the inquiry may be decisive. In the latter case it is
necessary to see if the statute creates a special right or a
liability and provides for the determination of the right or
liability and further lays down that all questions about
the said right and liability shall be determined by the
tribunals so constituted, and whether remedies normally
associated with actions in Civil Courts are prescribed by
the said statute or not.
(3) Challenge to the provisions of the particular Act as
ultra vires cannot be brought before Tribunals
constituted under that Act. Even the High Court cannot
go into that question on a revision or reference from the
decision of the Tribunals.
(4) When a provision is already declared unconstitutional
or the constitutionality of any provision is to be
challenged, a suit is open. A writ of certiorari may
include a direction for refund if the claim is clearly within
the time prescribed by the Limitation Act but it is not a
compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for
refund of tax collected in excess of constitutional limits
or illegally collected a suit lies.
(6) Questions of the correctness of the assessment apart
from its constitutionality are for the decision of the
authorities and a civil suit does not lie if the orders of the
authorities are declared to be final or there is an express
prohibition in the particular Act. In either case the
scheme of the particular Act must be examined because
it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the Civil Court is
not readily to be inferred unless the conditions above set
down apply."
27. Following the declaration of law made by the
Constitution Bench of the Hon'ble Supreme Court, I am of the
view that the suit itself is not maintainable. At this juncture, it
is relevant to cite the judgment of the Hon'ble Supreme Court
in the case of R. Kandasamy (Since Dead) and others v.
T.R.K. Sarawathy and another17 at paragraph 45 to 47 reads
as under:
"45. Should the trial court not satisfy itself that the
jurisdictional fact for grant of relief does exist,
nothing prevents the court higher in the hierarchy
from so satisfying itself. It is true that the point of
maintainability of a suit has to looked only through
the prism of section 9, CPC, and the court can rule on
such point either upon framing of an issue or even
prior thereto if Order VII Rule 11 (d) thereof is
applicable. In a fit and proper case, notwithstanding
omission of the trial court to frame an issue touching
jurisdictional fact, the higher court would be justified
in pronouncing its verdict upon application of the
test laid down in Shrisht Dhawan v. Shaw
Brothers .
AIR 2025 SC 44
(1992) 1 SCC 534
46. In this case, even though no issue as to
maintainability of the suit had been framed in course
of proceedings before the Trial Court, there was an
issue as to whether the Agreement is true, valid and
enforceable which was answered against the sellers.
Obviously, owing to dismissal of the suit, the sellers
did not appeal. Nevertheless, having regard to our
findings on the point as to whether the buyer was
'ready and willing', we do not see the necessity of
proceeding with any further discussion on the point of
jurisdictional fact here.
47. However, we clarify that any failure or omission
on the part of the trial court to frame an issue on
maintainability of a suit touching jurisdictional fact by
itself cannot trim the powers of the higher court to
examine whether the jurisdictional fact did exist for
grant of relief as claimed, provided no new facts were
required to be pleaded and no new evidence led."
28. In view of the declaration of law made by the
Hon'ble Supreme Court in R.Kandasamy (supra), stated
above, I am of the view that the suit itself is not maintainable
and it is expedient for the plaintiff to approach the competent
Authority for redressal of grievance under the Act and Rules.
29. Though the learned counsel appearing for the
respondent-plaintiff submitted that it is a case of discrimination
by the defendants-appellants herein in refusing to grant
benefits to the employees, however, same cannot be
considered in the realm of the established principle of law as
stated above.
30. It is also to be noted that, though the learned
counsel appearing for the respondent-plaintiff submitted that
the respondent-plaintiff is entitled for benefits and some of the
employees have been already paid by the appellants-
defendants, however, as I have arrived at a conclusion that the
suit itself is not maintainable under Section 9 of CPC, the said
plea cannot be accepted. It is settled principle in law that if the
finding recorded by the Trial Court is contrary into law and this
Court while exercising the jurisdiction under Section 96 read
with Order XLI Rule 31 of CPC has to re-appreciate the
evidence on record and has to assess whether the finding
recorded by the Trial Court is in accordance with law, being a
final Court for fact finding in the circumstances of the case. In
view of the fact that the Trial Court has misconstrued the oral
and documentary evidence on record and has not appreciated
the material in the light of the settled principles of law that the
defendant-institution is a private unaided institution and the
service conditions of the employees are governed by the
provisions under the Act and Rules so also , the bye-laws of the
defendant No.1-Society and therefore, I find force in the
submission made by the learned counsel appearing for the
appellant that the suit itself is not maintainable and the plaintiff
has to approach the competent authority for redressal of his
grievance.
31. In that view of the matter, taking into consideration
the observation made above with regard to the facts and
circumstances of the case so also the declaration of law made
by this Court and the Hon'ble Supreme Court, I am of the view
that the points for consideration are answered in favour of the
defendants-appellants and suit itself is not maintainable. In the
result, I pass the following:
ORDER
i) The appeal is allowed.
ii) Judgment and decree dated 31.01.2006
in O.S.No.360/2002 passed by the
Principal Civil Judge (Sr.Dn) Belgaum, is
hereby set aside.
iii) Suit filed by the plaintiff is dismissed.
Sd/-
(E.S. INDIRESH)
JUDGE
SMM/YAN
