Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No.4179/2019 in S.C. Suit No.2954/2019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 4179 OF 2019
CNR NO.: MHCC010114592019
IN
S.C. SUIT NO. 2954 OF 2019
Radha Unni Nair ...Plaintiff
V/s
Tilak Nagar Education Society ...Defendant
Appearances:
Advocate Mr. Ajit for the plaintiff.
Advocate Mr. Subhash Chandra Pal for the defendant.
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 23rd JANUARY, 2020.
ORAL ORDER
This is a Notice of Motion filed by plaintiff to direct defendant to
reinstate plaintiff as a part time teacher of the school run by defendant
during the pendency of the suit.
Allegations of plaintiffs in short are as under:
2. Plaintiff was confirmed to her service on the permanent post with
effect from 14.06.1996, in the school. She was given letter dated
12.02.1997 confirming her service and in such letter in condition No.14
it was clearly stated that, the retirement age of the plaintiff will be 60
years and which could be extended for the further period of one or two
years by the management of the defendant. Plaintiff has further stated
that on plaintiff's protesting about her reduction of her retirement age,
by defendant's letter dated 16.07.2007, it was withdrawn by letter
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dated 01.07.2009. Plaintiff has further stated that by letter dated
13.05.2019, she was informed that she will be retired from the services
after the working hours of 30.06.2019 on she attaining age of 58 years.
Plaintiff has further contended that as per her appointment letter, her
retirement age is 60 years and not 58 years. She has further stated that
she is illegally terminated by contravening the terms and conditions
stated in her appointment letter dated 12.02.1997. She has further
stated that by such termination of services, the defendant has caused
huge mental harassment and defamation of the plaintiff. She has
further stated that she filed Appeal before School Tribunal, Mumbai,
but appeal was dismissed. Therefore she filed present Notice of Motion.
3. Defendant has filed reply to this Notice of Motion and admitted
that plaintiff was confirmed as a regular employee on 15.02.1997 with
all discretionary power, confirmed with the defendant regarding
determination of extension of service after retirement in given situation.
Defendant has further stated that invariably all employees of the
institute have tenure of service of age 58 years only and the Institute
has fairly adopted retirement age of all employees strictly in consonance
with State policy.
4. Defendant has further admitted that in strict compliance of rules
and regulations, intimation regarding retirement was issued by letter
dated 13.05.2019 to plaintiff. Defendant has further stated that by letter
dated 16.07.2007, the plaintiff was made aware as per para 17 that, she
will retire on attaining the age of 58 years or earlier, though the
management committee of the education society may grant extension of
1 or 2 years purely at their discretion. Defendant has further stated that
there were some errors in the letter dated 16.07.2007 as regard to
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salary scale and some modification in terms and conditions were
required as mentioned in the letter dated 01.07.2009 at Sr. No. 1 to 8
and for that limited purpose continuing letter dated 01.07.2009 was
issued. Defendant has further stated that the letter dated 01.07.2009
does not intent to modify the earlier letter as regards the date of
retirement. Defendant has further stated that for the purpose of age
letter dated 16.07.2007 is valid, subsisting and applicable to the
plaintiff and plaintiff has retired on 30.06.2019.
5. Heard argument of Ld. Counsels for the plaintiff and the
defendant. Perused Notice of Motion, affidavit in support of Notice of
Motion and reply filed by Defendant.
6. To decide this Notice of Motion, following points arises for my
determination and their answers followed by reasons are as stated
below:
Sr. No. POINTS FINDINGS
1. Does the plaintiff made out prima
facie case for order of temporary
injunction against defendant ?
...In the negative.
2. Does the plaintiff made out case that
balance of convenience lies in her
favour?
…In the negative.
3. Does the plaintiff shows that, if order
of temporary injunction not granted
in her favour, she will suffer
irreparable loss ?
...In the negative.
4. What order ? ...As per the final order.
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REASONS
AS TO POINT NOS. 1 TO 4 :
7. Both the parties have admitted that plaintiff's service were
confirmed as a part time teacher, in the Institute and the letter dated
15.02.1997 is issued in favour of plaintiff when she was confirmed as a
regular employee. It is also admitted that by both the parties that in
such letter in clause No.14 it was stated that, “the plaintiff will retire
from service on attaining the age of 60 years.” Both the parties have not
disputed that the letter dated 16.07.2007, was issued by defendant to
plaintiff. Defendant has produced copy of such letter. It appears in such
letter it is stated that plaintiff will retire at the age of 58 years or earlier.
Both the parties have admitted that the letter dated 01.07.2009, was
issued by defendant in favour of plaintiff. Plaintiff has produced copy of
such letter. It appears in such letter, it is clearly stated in the last
unsigned portion that, “the earlier appointment letter dated 16.07.2007
issued to plaintiff has been withdrawn since the terms and conditions
and the salary scale etc. erroneously mentioned therein for the Part
Time teacher, the error is regretted.”
8. It appears in the letter dated 01.07.2009, there is reference of the
previous letter dated 03.02.2007. But the letter dated 03.02.2007 is not
produced. It appears that on the portion that, earlier appointment letter
has been withdrawn is not signed. But such portion is stated after the
signature of the General Secretary of defendant.
9. Advocate for the plaintiff contended that as per letter dated
01.07.2009, the letter dated 16.07.2007 was withdrawn, therefore, the
condition that her age of retirement is 58 years stood withdrawn and
therefore, the condition that her retirement age is 60 years as per letter
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dated 15.02.1997 is applicable to her.
10. Ld. Counsel for the defendant has contended that the letter dated
01.07.2009 has not modified or deleted the condition that plaintiff will
retire at the age of 58 years. It appears in the letter dated 01.07.2009 it
is clearly stated that, “the management shall have every right to
terminate your services at any time without assigning any reasons
thereof by giving 15 days notice or salary in lieu thereof.” It is further
stated that, “in case of the above terms and conditions of service are
acceptable to you, then sign and return a copy of the offer of
appointment in token of your acceptance to the same.” It appears after
issuance of such letter, plaintiff has continued service has a teacher with
defendant upto 2018 approximately. Therefore, it appears it was the
accepted condition by plaintiff as per letter dated 01.07.2009 that
management shall have every right to terminate plaintiff at any time
without assigning any reasons thereof. Therefore, it appears that as per
letter dated 01.07.2009, defendant had the right to terminate plaintiff's
service by giving 15 days notice irrespective of age. Considering the fact
that on the basis of the letter dated 01.07.2009, the services continued
by plaintiff, it appears her services are continued on the basis of
condition in the letter dated 01.07.2009 and not on the basis of
15.02.1997.
11. Ld. Counsel for the defendant has adduced copy of Order passed
by School Tribunal, Mumbai in the appeal filed by plaintiff. It appears
in such order, the School Tribunal has relied upon judgment in case of
Governing Body of Nirmal Education Society Gondia and anr Vs.
Presiding Officer School Tribunal 1996 (2) Mh.L.J.592, wherein it is
observed in para 3 that, “kindergarden is undisputedly below primary”. It
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is held by the School Tribunal, Mumbai in para 12 that, “the school
tribunal has no jurisdiction to deal with termination of teacher as same is
not being a school within the definition and pre primary school is not
given any place under the MPES Act, or Right to Education Act and
relevant Rules.” Admittedly, plaintiff was being in service as part time
teacher in preprimary school, therefore, it is not fitting in the definition
of school and therefore, the rules of 58 years of retirement is not
applicable to plaintiff of The Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977.
12. From the above discussion it appears that as the plaintiff was
appointed as a part time teacher in government aided preprimary
school and her continuation of service was governed by the letter dated
01.07.2009 issued to her. It appears in such letter, there is no
conditions stated that the plaintiff will retire at the age of 60 but
admittedly the letter states the condition of giving 15 days notice for
termination of plaintiff. Admittedly the notice is issued to plaintiff on
13.05.2019 and she was to retire from 01.07.2019. Hence, it appears
that as per such letter dated 01.07.2009, the requirement of giving 15
days notice is complied. Therefore, it appears there are no grounds,
rules or any contract which can compel defendant to keep plaintiff in
service after the age of 58 upto 60. Therefore, plaintiff has failed to
make out prima facie case in her favour.
13. It is admitted fact that plaintiff has served the Institution upto her
age of 58 years. Plaintiff has failed to make out a prima facie case that
she is entitled as a matter of right to continue the service upto the age
of 60. It appears it is the sole discretion of defendant whether to
continue her services or not. Therefore, if mandatory injunction is
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issued directing the defendant to reinstate plaintiff, it will cause more
harm to defendant than plaintiff.
14. Plaintiff has stated that due to her termination she faced huge
tension, mental harassment and defamation. But the letter issued by
defendant states that as plaintiff has completed age of 58 years,
therefore, as per rules she stands relieved. From such statement, it does
not appear they are not defamatory. The letter is nowhere making
allegations that plaintiff's performance was not upto the mark.
Therefore, plaintiff has failed to show how she is defamed by such
letter. Plaintiff has failed to show that she will face irreparable loss.
When there is no rule or contract compelling defendant to continue
plaintiff's service in the school then not allowing defendant to exercise
their right to continue or not services of employees is not justified.
Hence, the balance of convenience lies in favour of defendant and not
in favour of plaintiff. Hence, answer point Nos. 1 to 3 in the negative
and pass following order:
ORDER
Notice of Motion No.4179 of 2019 stands rejected.
(SONALI P. AGARWAL)
Judge,
Date: 23.01.2020. City Civil Court,
Gr. Bombay.
Dictated on : 23.01.2020
Transcribed on : 23.01.2020
Signed on : 23.01.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
27.01.2020 At 1.41 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Sonali P. Agarwal
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
23.01.2020
Judgment/Order signed by P.O. on 23.01.2020
Judgment/Order uploaded on 27.01.2020
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