Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 1423/20(Suit(St) 4475/20)
MHCC010044002020
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.1423/2020
IN
SUIT (ST.) NO. 4475/2020.
Mr. Vinod Vishwanathan Nayak ..Plaintiff
V/s.
1. South Indian welfar Society College
2. Shri. R. Radhakrishnan
3. Shri Dr. K.M. Venkatesh
4. Shri M. Ananthasubramanian
5. Shri P.R. Kumar
6. Shri G.S. Subramaniam
7. Shri K.S. Narayan
8. Shri. S. Sridhar
9. Shri Dr. V. Rangarajan
10. Shri. V. Ramchandran
11. Shri. T.V. Krishnan
12. Shri Murlidharan Srinivasan
13. Shri Ramesh Ganeshan
14. Shri P.S. Anantnarayanan
15. Shri Dr. P.V. Parmeshwaran
16. Shri K.G. Krishnamoorthy
17. Dr. Usha Iyer. ..Defendants
Appearance:-
Ld. Adv. Ms. Geeta Iyer for plaintiff.
Ld. Adv. Ms. Sanglikar@ Adv. Shital R.Ekawade for defendants.
CORAM : HHJ Shri V.V Vidwans
C. R. No.43.
DATE : 6.2.2021.
ORAL ORDER
1. Perused Notice of Motion supported by an affidavit of Mr.
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M. Ananthasubramanian (Defendant no.4) on behalf of defendant no.1
and other defendants. The plaintiff has filed his say/ affidavit in reply to
the notice of motion and has strongly opposed the Motion on various
grounds.
2. I have heard Ld Counsels for both sides and also considered
various authorities and citations submitted and relied upon by them in
support of their contentions. On request of Ld Counsel for the plaintiff, I
had also allowed the plaintiff Mr. Vinod Nayak to address the court and
make his submission in person regarding some of the factual aspects
with which he was found more conversant considering the fact that he
is a handicapped person and inspite of same, he had been attending
hearing of the case punctually on all dates.
3. It is submitted on behalf of the plaintiff that, he is a
lecturer in the Commerce faculty in the college run by South Indian
Welfare Society College (a Public Trust)- defendant no.1 in the Suit. He
is a handicapped person and having qualification – Mcom, LLB; DFM;
GDC&A; Mphil; MA(Eco); MBA; MA(R&P); Msc (APP Psy) and MMJ.
He was appointed on 9.6.2007 (Exh.A) initially on contract basis with
yearly term and on 7.6.2010 and 6.6.2011 (Exh.B colly.). He received
confirmation letter dated 4.6.2012 with employment code no.39
indicating permanent status in the employment of defendant no.1
(Exh.C). He was given salary increase vide letter dated 4.6.2012 and
further increase in salary vide letter dated 23.8.2016(Exh.D). The
plaintiff was promoted as Head of Department(HOD) of Bachelor of
Management Studies in December 2011 and was working as Incharge of
said Department from 2011 to 2019 vide documents filed on record
(Exh.E colly.). He was also doing additional duties as per letter dated
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26.4.2018(Exh.F). It is submitted that, the plaintiff though is
handicapped person, his academic record has been outstanding. It is
argued that, except false allegations by the defendant no.17, the work
of plaintiff has been satisfactory. Hence, by virtue of confirmation letter
stated above, the plaintiff is claiming to be permanent employee of the
defendant Trust. The defendants no.2 to 6 are office bearers of the
public trust, while defendants no.7 to 16 are trustees and defendant
no.17 Dr.Usha Iyer is the Principle of the college. The defendants have
taken objection to the jurisdiction of this court by taking out the present
Motion under Order 7 Rule 11(d) of CPC contending that, the civil
court has no jurisdiction to entertain the suit filed by the plaintiff.
4. It is contended by the defendants that the defendant no.4 is
authorized signatory of the defendant no.1 and has been duly instructed
to move this court on the point of jurisdiction. It is submitted that, the
plaintiff has approached this court by filing the suit seeking declaration
that the plaintiff is permanent employee of the Trust and also for
quashing and setting aside letter dated 31.8.2020(Exh.J), which,
according to the plaintiff, has effect of termination of his service and for
other consequential relief of injunction. It is urged that, the plaint, as
framed and filed, is liable to be rejected on the basis of averments made
in the plaint, as it is impliedly barred by the provisions of Section 81 of
the Maharashtra Public Universities Act,2016 and pointed out that, the
said Section reads that, notwithstanding anything contained in any law
or contract for the time being in force, any teacher or other employee in
the university, governed by or affiliated to the college or recognized
institution of any university, governed by the Act other than that
managed and maintained by the State Government or Central
Government or local authority is, dismissed or removed from services or
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otherwise terminated or compulsorily retired or reduced in rank etc and
is aggrieved by such action of the university or
management or any
decision of grievance committee established under the Act shall have
right to appeal and any appeal against such order or decision shall lie to
the Tribunal constituted under special enactment.
5. It is further contended by the defendants that, since the
plaintiff has challenged the letter dated 31.8.2020 whereby the plaintiff
was informed that
his appointment was from year to year basis and
inspite of repeated requests the plaintiff has failed to apply fresh for the
post advertised by the management and therefore, there was no
subsisting contract between the plaintiff and defendant Trust for
teaching in the college run by the defendant no.1. It is submitted that
the plaintiff has treated this letter as action of the management to
terminate his services and he has claimed himself to be the permanent
employee of the Trust as per averments in the plaint and has sought
declaration to that effect. The plaintiff has sought perpetual injunction
against the action of the defendants seeking to prevent them from
enforcing or implementing the letter dated 31.8.2020. Therefore,
impliedly, the plaintiff is challenging his termination of contractual
appointment as teacher/lecturer to the College. Therefore, the plaintiff’s
case squarely falls in the contingency governed by Section 81 (1) of the
Maharashtra Public Universities Act 2016 and therefore, jurisdiction of
this court is clearly barred by the provisions of said Act, as per Full
Bench decision of the Hon’ble Bombay High Court in the case of St. Ulai
High School, through its Principal, Lokmanya Nagar, Pada No.4, Thane
& Anr. V/s. Shri Devendraprasad Jagannath Singh & Anr. (Second
Appeal No.533 of 2001 with Civil Application Nos. 1437/03 &
1446/06), on which the defendants are relying upon.
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6. Alternatively, it is submitted on behalf of the defendants
that, even otherwise, plaintiff’s claim in the suit is clearly hit by the
provisions of Sec.14(1)(b) of the Specific Relief Act 1963 and as per
said provision, no declaration or relief, as prayed in the suit, can be
granted by this court and it is only the College Tribunal, a Special
Forum constituted under special enactment, which can adjudicate upon
the grievances of the plaintiff. The said college tribunal being a special
forum created under special law, therefore, it overrides general law i.e.
Civil Procedure Code. Under the above circumstances, the plaint, as
framed and filed, is liable to be rejected.
7. Ld Counsel for the plaintiff has strongly opposed the notice
of motion and relied on the affidavit in reply submitted on record. Ld
Adv. Mr. Holamagi for the plaintiff submitted that, the notice of motion
taken out by the defendant under Order VII Rule 11(d) of CPC is totally
misconceived and bad in law. It is moved with an ulterior motive by the
defendants to defeat the very purpose of filing the suit by the plaintiff. It
is submitted that, the civil court has exclusive jurisdiction to try all the
disputes of civil nature and present matter is concerning the grievances
of the plaintiff against the Public Trust governed by the provisions of
Maharashtra Public Trust Act. The defendants are office bearers or
Trustees. The main grievance of the plaintiff is against defendants no.4
and 17. This is a case of victimization of the plaintiff by defendant nos.4
and 17 and other defendants being office bearers of the Trust and or
Trustees, are also responsible for the injustice caused to the plaintiff.
The defendants have dealt with the matter of grievance of the plaintiff
with high handed manner and committed illegal acts. The approach of
the defendants is unwarranted and unacceptable as it is against the
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principle of natural justice. The grievances of the plaintiff in the present
case are of totally civil nature and therefore, this civil court has
exclusive jurisdiction to try and decide the suit.
8. Ld Counsel for the plaintiff vehemently argued that, the
plaintiff has been in service of the defendant as permanent Lecturer. He
was appointed on 9.6.2007 (Exh.A) initially on contract basis with
yearly term and on 7.6.2010 and 6.6.2011 (Exh.B colly.). He received
confirmation letter dated 4.6.2012 with employment code no.39
indicating permanent status in the employment of defendant no.1
(Exh.C). He was given salary increase vide letter dated 4.6.2012 and
further increase in salary vide letter dated 23.8.2016(Exh.D) and this
legal status of the plaintiff cannot be challenged by any one, including
the defendants. Ld Counsel for the plaintiff argued that, the
terminology used by the defendant in the Motion regarding ‘termination
of the service’ is not acceptable because it is only defendants no.4 and
17 who have colluded to take revenge of their personal animosity
against the plaintiff and co-plaintiffs in other two connected Suits.
Therefore, it is argued that, the letter issued by the defendant on
31.8.2020, is not a letter of termination but, it has the effect of
terminating the services of plaintiff. It is nothing but an act of the
defendants to prevent the plaintiff from performing his regular duties
and therefore, the act of the defendants to deny the plaintiff to have
log-in ID for teaching the students online is vindictive and against the
law.
9. It is submitted that, the plaintiff is having very good
academic record and has got necessary qualification required for the
said post. He is the only earning member in his family and the family
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members are depending on his earnings. According to the plaintiff, he
is permanent employee of the defendant Trust and therefore, the act of
the defendants to prevent the plaintiff from discharging his duties is
per
se is illegal and this court has every jurisdiction to entertain the
grievances of the plaintiff in the suit.
10. It is further submitted that, considering the factual
background of the case which clearly demonstrate intentional act of the
defendants to victimize the plaintiff, the grievance of the plaintiff needs
to be considered sympathetically by this court. It is contended that, by
moving the present Motion, the defendants have tried to side track the
main dispute between the plaintiff and the defendant Trust by taking
technical stand that the jurisdiction of the civil court is impliedly barred
by the provisions of Maharashtra Public Universities Act, 2016. It is
submitted that, the appointment of the plaintiff has been made by the
defendant Trust and not by competent authority or Selection Committee
approved by the University as per Rules and Regulations. Ld Counsel for
the plaintiff has relied upon the appointment letters issued by the
defendant Trust dated 20.3.2013 and 20.6.2014, which clearly shows
that, though initially the appointment of the plaintiff was on contract
basis, his services were confirmed by letter/order dated 23.8.2016 and
salary increased on 30.6.2018 and therefore, there is no question of
subsequent termination of his services by the defendant directly or
indirectly. In view of above, it is argued that, the provisions of Sec.81(1)
of the Maharashtra Public Universities Act are not applicable to the facts
of present case and therefore, there is no question of implied bar of the
jurisdiction, as contended by Ld Counsel for the defendants.
11. So far as the objection to the jurisdiction of this court on
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the count that, the plaintiff’s claim in the suit is hit by provisions of
Sec.14(1)(b) of the Specific Relief Act, r/w. Sec.41 of the said Act, Ld
Counsel for the plaintiff argued that, the said objection is totally
misconceived. Ld Counsel for the plaintiff argued that, the appointment
of the plaintiff by the defendant Trust has become permanent and
therefore, now, there is no question of dispute arising out of the
contractual appointment, as contended by the Ld Counsel for the
defendants. Therefore, said provisions are not applicable to the facts of
the present case. Under the above circumstances, the notice of motion
taken out by the defendants under Order VII of the CPC is liable to be
dismissed with compensatory costs.
12. Ld Counsel for the plaintiff has submitted that, he is relying
upon the compilation of Index of Files and compilation of various
authorities are regarding jurisdiction of the civil court and bar under
Specific Relief Act. I have gone through the said compilation which
contained copies of various letters/orders of appointment regarding
employment of the plaintiff and facts and circumstances to show that,
the services of the plaintiff in the college run by the defendant Trust
continued for several years and there was no break in the service etc.
For jurisdiction of the civil court, Ld Counsel for the plaintiff has also
relied upon the decision of the Hon’ble Apex Court in the cases of (1)
Dhulabhai V/s. State of Madhya Pradesh (AIR 1969 SC 78) and (2)
Rajasthan SRTC V/s. B.M Bhairwa (2009(4) SCC 299) and other
decisions.
13. Relying on the above authorities, Ld Counsel for the
plaintiff submitted that, the ratio of the decision of the Hon’ble Bombay
High Court in the case of St. Ulai High School, through its Principal,
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Lokmanya Nagar, Pada No.4, Thane & Anr. V/s. Shri Devendraprasad
Jagannath Singh & Anr. (supra) is not applicable to the facts of the
present case and therefore, the contention of the Ld Counsel for the
defendants have no merits and the notice of motion is/are not
maintainable in law.
14. I have gone through the notice of motion and supporting
affidavit stating various grounds as well as facts and circumstances of
the case. I have also gone through the affidavit in reply to the notice of
motion and taken in to consideration averments made by the plaintiff in
the plaint. I have also gone through various authorities submitted and
relied upon by Ld Counsels for both sides.
15. I have carefully examined the ratio of the decision of the
full bench of the Bombay High Court in the case of St. Ulai High School
V/s. Shri Devendraprasad Jagannath Singh & Anr. (supra) and find
that, in the above said case, reference was made to the full bench of
Hon’ble Bombay High Court on various legal questions, including the
question, “whether a suit is maintainable in civil court in respect of the
matters set out in Sec.9 of the Maharashtra Employees of Private
Schools (Conditions of Services) Regulation Act, 1977 and Rule 12 of
the Rules framed thereunder?”. After considering the historical
background of the dispute and questions raised before the court,
Hon’ble High Court has considered various aspects involved in the
issues, which are pointed out in para 2.1 after said judgment. There are
as many as 07 points. These questions have multiple dimensions.
Hon’ble Bombay High Court has also considered the entire scheme of
enactment i.e. Maharashtra Employees of Private Schools (Conditions of
Services) Regulation Act, 1977 and Rules framed thereunder. The object
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of the said legislation is mentioned in para 6.4 of the judgment. It is
pointed out that, provisions of Sec.9 and 12 of the said Act are having
overriding effect. Regarding exclusion of jurisdiction of civil court
expressly or impliedly, reference is made to the decision of the Hon’ble
Apex Court in the case of Dhulabhai V/s. State of Madhya Pradesh
(supra), wherein it was held that, the court has to see that, if the statute
creates a special right or a liability and provides for the determination
of such 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.? Hon’ble Bombay
High Court has also considered the ratio of the decision in the case of
Premier Automobiles Ltd V/s. Kamlakar Shantaram Wadke (AIR 1975
SC 2238; (2) Raja Ram Kumar Bhargava v/s. Union of India, AIR 1988
SC 752; (3) Rajasthan Road Transport Corporation V/s. Krishna Kant
(AIR 1995 SC 1715) and (4) Dhruv Green Field Ltd. v. Hukam Singh
((2002)6 SCC 416), wherein Hon'ble Supreme Court has held that
before holding that thre is exclusion of the jurisdiction of a civil court,
the Court would enquire whether an adequate and efficacious remedy is
provided under the law and if the answer is in the affirmative, it can
safely be concluded that the jurisdiction of the Civil Court is barred.
Hon'ble Bombay High Court has also referred to the decision of the
Hon'ble Apex Court in the case of Executive Committee of Vaish Degree
College v. Lakshmi Narain (AIR 1976 SC 888), where three exceptions
to the general rule are mentioned that a contract of personal service
cannot ordinarily be specifically enforced and a Court normally would
not give a declaration regarding such contract, and only three
exemptions to the rule are that, (i) removal of public servant from
service in contravention of the provisions of Article 311 of the
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Constitution of India; (ii) dismissal of a workman under Industrial Law
is sought to be challenged and (iii) where a statutory body has acted in
breach or violation of the mandatory provisions of the law.
16. After considering the observations made by Hon'ble
Bombay High Court in the above said decision, it becomes clear that, as
per the conclusion drawn after discussing entire case law on the subject
in para 12.1, Hon'ble High Court has drawn conclusion and held
inter
alia that, where the Legislature has provided remedy before the
Tribunal only in respect of the subjects spelt out in the Act, the
jurisdiction of the Civil Court is impliedly barred. The other issues
which are not covered by the statute, jurisdiction of civil court still
remains available to the aggrieved person.
17. If the ratio of the above said decision is applied to the facts
of the present case, I am of the considered opinion that, if the pleadings
of the plaintiff in the plaint are considered along with prayers, it is
prima facie clear that, the main grievance of the plaintiff is in respect of
the letter/order issued by defendant Trust dated 31.8.2020, by which
the plaintiff was informed that his appointment was on year to year
basis and in spite of repeated requests, the plaintiff failed to apply for
the fresh advertisement for the post issued by the management and
therefore, there is no subsisting contract between the plaintiff and
defendant Trust for teaching in the college run by defendant no.1.
Similarly the reliefs sought by the plaintiff in the Suit are in the nature
which can be granted only by the Tribunal constituted under the
Maharashtra Public Universities Act,2016 as the case is specifically
covered by the provisions of Sec.81 of the said Act/ special enactment.
The terminology of the said Section is wide enough to include all the
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grievances of the plaintiff for which the remedies are provided and
therefore, I hold that the jurisdiction of this court is impliedly barred by
the provisions of Sec.81 of the said Act. Hence, the notice of motion
taken out by the defendant has much substance in it and will have to
be allowed.
18. Similarly, the answer to the question, whether the plaintiff’s
claim in the suit is also hit by the provisions of Sec.14(1)(b) of Specific
Relief Act r/w. Sec. 41 of the said Act, is also going against the plaintiff.
Therefore, it would be in the interest of the plaintiff to approach Special
Tribunal/forum provided by the Special Enactment for redressal of their
grievances and the Suit is impliedly barred by Special Law.
19. The above observations are made on the basis of prima
facie opinion of the Court, regarding technical objection of the
defendants regarding jurisdiction of the Court. It may be noted that,
the plaintiff has probably good case on merits in respect of his
grievances about his service matter. But, because, this Court has come
to the conclusion that the jurisdiction of Civil Court is impliedly barred,
it has no other option than to reject the Plaint. Needless to mention
that, the plaintiff has approached this court with bonafide belief that
the civil court is competent and is having jurisdiction to redress their
grievances and therefore, the time consumed by the plaintiff in filing
the present suit and prosecuting the same period during which the Suit/
Motions were pending in this court, is liable to be considered
sympathetically for the purpose of exemption as per provisions of
Limitation Act. With these observations, I proceed to pass following
order :-
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ORDER
1. Notice of Motion No.1423/2020 in Suit (St.)
No.4475/2020 is hereby allowed and made absolute.
2. The plaint in Suit (St.) No. 4475/2020 is hereby
rejected under Order-VII Rule 11(d) of CPC on the
ground that jurisdiction of this court is impliedly barred
by the provisions of Sec.81 of the Maharashtra Public
Universities Act,2016.
3. A decree shall be drawn up accordingly.
4. In the circumstances of the case, there shall be no order
as to costs.
5. In view of order passed in Notice of Motion
No.1423/2020 in this Suit(St.), the Notice of Motion
moved by the plaintiff i.e. N/M No.1540/2020 does not
survive and it is also disposed of accordingly. Similarly,
pending NM in the suit(stamp), if any, are disposed of
as infructious.
6. The orders regarding interim relief passed by this court
on N/M 1423/20 and continued from time to time
stands vacated.
7. Suit (St.) be registered for statistical purpose.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 6.2.2021 Gr. Bombay (C.R.43)
Dictated by HHJ on 11.2.2021
Typed on 11.2.2021
Signed by HHJ on : 11.2.2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON :12.2.2021
TIME: 12.20 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R.43)
Date of pronouncement of Judgment/ Order 6.2.2021
Judgment/ order signed by P.O on 11.2.2021
Judgment/ order uploaded on 12.2.2021
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