Order 1

Order Details: Other
Pdf Text: : 1 : Review Petition No.575 of 2018
CNR No.MHCC010058462018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
REVIEW PITITION NO. 575 OF 2018
IN
NOTICE OF MOTION NO.2048 OF 2017
IN
SUIT NO.8616 OF 1999
Smt. Basanti Chakraborty .. Plaintiff
Versus
1. Bhagini Kala Mandir
2. Bhagini Kala Mandir High School .. Defendants
Appearance :
Advocate Makrand Kale for plaintiff.
Advocate Gada for defendant.
CORAM : HIS HONOUR JUDGE
SHRI ANAND L. YAWALKAR
(COURT ROOM NO. 31)
DATED : 16.02.2019
: ORDER :
Being aggrieved by the order passed in Notice of Motion No.
2048/2017 in Suit No. 8616/1999 the defendant has taken out this
Review Petition.
2. Counsel for defendant submitted that in view of enactment
The Maharashtra Employees of Private Schools ( Conditions of Service)
Regulation Act, 1977 (hereinafter referred to as 'the act') the
jurisdiction of this court is barred regarding the matter i.e. concerning
-- 1 of 7 --
: 2 : Review Petition No.575 of 2018
the aforesaid act. The jurisdiction is exclusively with the School
Tribunal constituted u/s. 8 of the said 'the act'. It was submitted that the
order passed by predecessor Judge suffers from error and it has not
considered section 11 of the said 'the act'. Plaintiff has filed the suit for
recovery of arrears of Rs. 5,54,530/ along with 18% interest. As per the
contention of the plaintiff she was in service of the defendant and hence
is governed by the aforesaid act and thus they prayed to allow the
Review Petition.
3. Counsel for plaintiff appeared and submitted that the order of
the Court is proper. It was submitted that the scope of the court while
deciding a review application is extremely limited. The suit is filed for
recovery of arrears and it is not barred u/s. 9 of the 'the act'. The relief
of reinstatement is not sought from this court and due to this, the court
has jurisdiction in the matter to grant of arrears of salary.
4. Heard counsel for plaintiff and defendant. Perused the order
in Notice of Motion 2048/2017 dated 23.11.2017 and other material on
record.
5. Admittedly, the plaintiff was the Head Mistress working with
defendant. Issue in this suit restricted for recovery of arrears of salary of
Rs. 5,54,530/ from 1992 to 1999. The court has observed that the
claim of the plaintiff does not false within section 9(a) and 9 (b) of the
'the act'. Due to this this court has jurisdiction and to grant relief of
recovery of arrears.
6. The suit was instituted before the court with the relief that
the plaintiff be declared in continuous service as Head Mistress and
-- 2 of 7 --
: 3 : Review Petition No.575 of 2018
plaintiff be allowed to resume her duties by way of mandatory
injunction. Similarly, there was also prayer made for payment of
arrears. This court has already held that this court has jurisdiction to
entertain the petition only on the point of grant of arrears to plaintiff.
7. This application is filed for review u/s. 114 of CPC. That as
per Order 47 Rule 1 Application for review of judgment:
1) Any person considering himself aggrieved,
a) by a decree or order from which an appeal is allowed, but
from which no appeal has been preferred,
b) by a decree or order from which no appeal is allowed, or
c) by a decision on a reference from a Court of Small Causes,
and who, from the discovery of new and important matter or
evidence which, after the exercise of due diligence, was not
within his knowledge or could not be produced by him at the
time when the decree was passed or order made, or on
account of some mistake or error apparent on the face of the
record, or for any other sufficient reason, desires to obtain a
review of the decree passed or order made against him, may
apply for a review of judgment to the court which passed the
decree or made the order.
2. A party who is not appealing from a decree or order may
apply for a review of judgment notwithstanding the
pendency of an appeal by some other party except where the
ground of such appeal is common to the applicant and the
appellant, or when, being respondent, he can present to the
Appellate Court the case on which he applies for the review.
-- 3 of 7 --
: 4 : Review Petition No.575 of 2018
Explanation : The fact that the decision on a question of law
on which the judgment of the Court is based has been
reversed or modified by the subsequent decision of a superior
Court in any other case, shall not be a ground for the review
of such judgment.
8. Upon perusing this order the scope of this court to entertain
the review application is limited. Upon considering the impugned order
in Notice of Motion, scope of review and section 11 of the act it appears
from the order that this court has not considered section 11 of The
Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Act. Section 11 of the act is reproduced for sake of
convenience.
“11. Powers of Tribunal to give appropriate reliefs and
directions : (1) On receipt of an appeal, where the Tribunal, after
giving reasonable opportunity to both parties of being heard, is satisfied
that the appeal does not pertain to any of the matters specified in
section 9 or is not maintainable by it, or there is no sufficient ground for
interfering with the order of the Management it may dismiss the appeal.
(2) Where the Tribunal, after giving reasonable opportunity
to both parties of being heard, decides in any appeal that the order of
dismissal, removal, otherwise termination of service or reduction in
rank was in contravention of any law (including any rules made under
this act), contract or conditions of service for the time being in force or
was otherwise illegal or improper, the Tribunal may set aside the order
of the Management, partially or wholly, and direct the Management,
(a) to reinstate the employee on the same post or on a lower
post as it may specify;
-- 4 of 7 --
: 5 : Review Petition No.575 of 2018
(b) to restore the employee to the rank which he held before
reduction or to any lower rank as it may specify;
(c) to give arrears of emoluments to the employee for such
period as it may specify;
(d) to award such lesser punishment as it may specify in lieu
of dismissal, removal, otherwise termination of service or
reduction in rank. as the case may be;
(e) where it is decided not to reinstate the employee or in any
other appropriate case, [ to give to the employee twelve
months salary (pay and allowances, if any) if he has been in
the service of the school for ten years or more and six months
salary (pay and allowances, if any) if he has been in service of
the school for less than ten years], by way of compensation,
regard being had to loss of employment and possibility of
getting or not getting suitable employment thereafter, as it
may specify; or
(f) to give such other relief to the employee and to observe
such other conditions as it may specify, having regard to the
circumstances of the case.
(3) It shall be lawful for the Tribunal to recommend to the
State Government that any dues directed by it to be paid to the
employee. or in case of an order to reinstate the employee any
emoluments to be paid to the employee till he is reinstated, may be
deducted from the grant due and payable, or that may become due and
payable in future, to the management and be paid to the employee
direct.
(4) Any direction issued by the Tribunal under subsection (2)
shall be communicated to both parties in writing and shall be complied
by the Management within the period specified in the direction, which
-- 5 of 7 --
: 6 : Review Petition No.575 of 2018
shall not be less than thirty days from the date of its receipt by the
management.”
9. That as per section 11 of the 'the act' while deciding the issue
of dismissal, removal, termination of service or reduction in rank the
School Tribunal can grant other incidental or ancillary relief regarding
reinstatement of employee as mentioned in section 11 (a) reinstatement
of employee or restoration of rank as per 11(b), to give arrears of
emoluments for such period as per section 11(c). From the perusing the
impugned order in notice of motion it appears that this provision was
not brought to the notice of the court, which is resulted in overlooking
it by this court while passing the order.
10. From this it is evident that while deciding the issue of
reinstatement, termination or dismissal the suit the school tribunal is
empowered to grant ancillary relief in the form of arrears. Thus, it
would not be proper for the plaintiff to challenge his termination before
the school tribunal and the claim for recovery of arrears before the Civil
Court when the School Tribunal itself empowered to grant relief of
arrears as pointed out in section (c) of the court. Thus, due to non
bringing this section 11 (c) notice of the court mistake has crept in the
order and in the opinion of the court. This error apparent can be
corrected by way of this review petition. Thus it is apparently clear that
the issue of grant of arrears can be decided by the School Tribunal
validly constituted u/s. 8 of the 'the act' and hence I pass the following
order.
-- 6 of 7 --
: 7 : Review Petition No.575 of 2018
: ORDER :
1. Review Petition No. 575 of 2018 is allowed.
2. The delay if any is condoned.
3. The plaint be returned to plaintiff for its presentation to
proper Court.
Anand.L.Yawalkar
Judge,
City Civil & Sessions Court,
Date: 16.02.2019 Gr. Mumbai
Dictated on : 16.02.2019
Transcribed on : 16.02.2019
Signed on : 16.02.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
On 18.02.2019 at 4.45 p.m.
UPLOAD DATE AND TIME Mrs. P.R.Vengurlekar
NAME OF STENOGRAPHER
Name of the Judge
(With Court Room No.)
H.H.J. Anand.L.Yawalkar
C.R.No.31
Date of Pronouncement of
JUDGMENT/ORDER
16.02.2019
JUDGMENT/ORDER signed by P.O. on 16.02.2019
JUDGMENT/ORDER uploaded on 18.02.2019
-- 7 of 7 --