Monday, 4 April 2016

Whether school tribunal is civil court?

It is,
thus, clear that the dispute that is raised before the tribunal
under the Act is a dispute of a civil nature and therefore it can
be safely said that the tribunal for the purpose of deciding
appeals filed before it can be said to be civil  court for the
purpose of Civil Procedure Code and therefore, an order made
by the Tribunal is an order within the meaning of the Civil
Procedure Code.  I have already pointed out above that under
section 36 of the Civil Procedure Code, provisions in the Code
relating to execution of decree are applicable to the execution of
the order.  Therefore, if the order made by the School Tribunal
is an order within the meaning of Civil Procedure Code, then
the provisions in the Code relating to execution of a decree are
available   for   enforcing   or   executing   an   order   made   by   the
School Tribunal.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.32 of 2015
 Shri Brijlal Biyani Vidya Niketan
Shikshan Prasarak Mandal,
Versus
 Bharti w/o Khanderao Dabhade,
Coram : R.K. Deshpande, J.
Dated  : 31st March, 2015
Citation;2016(1)ALLMR797


1. Rule, made returnable forthwith.  Heard finally by consent of
the learned counsels appearing for the parties.
2. Amongst all other questions, two questions involved before
the School Tribunal are ­ (i) whether the resignation dated 11­7­2003,
which   was   obtained   by   the   petitioner­Management   from   the
respondent No.1­employee, was forced resignation?, and (ii) whether
the   respondent   No.1­employee   was   gainfully   employed   during   the
pendency of the appeal?  The serious factual controversy involved in
the appeal needs to be decided by permitting the parties to lead oral
and documentary evidence in support of their rival claims. For that
purpose,   if   the   parties   choose   to   file   an   affidavit   in   lieu   of
examination­in­chief, that has to be accepted, subject to the right of
the other side to cross­examine.  
3. By the impugned order, the School Tribunal has held that the
jurisdiction invoked by the respondent No.1­employee is an appellate

jurisdiction,   as   provided   under   Order   XLI   of   the   Code   of   Civil
Procedure, 1908 and there is no provision to conduct the proceedings,
in which the parties can be permitted to produce evidence.  It is not
possible to accept such a view in the light of the provisions of the
Maharashtra   Employees   of   Private   Schools   (Conditions   of   Service)
Regulation Act, 1977 (MEPS Act), the Code of Civil Procedure, the
decision   of   the   learned   Single   Judge   of   this   Court
(Shri D.K. Deshmukh, J., as he then was) in the case of Mohammad
Salam Anamul Haque v. Shri S.A. Azmi & ors., reported in 2000(3) ALL
MR 762, and the recent decision of the Apex Court in the case of
Tajender Singh Ghambhir and another  v.  Gurpreet Singh and others,
reported in (2014) 10 SCC 702.  
4. Section 9 of the MEPS Act provides a right of appeal to
Tribunal   to   employees   of   a   private   school   against   the   order   of
dismissal,   removal,   otherwise   termination,   reduction   in   rank   or
supersession in the matter of promotion.  Section 10 of the MEPS Act
deals   with   the   general   powers   and   procedure   of   Tribunal.
Sub­section   (1)   therein   states   that   for   the   purpose   of   admission,
hearing and final disposal of appeals, the Tribunal shall have the same
powers as are vested in an Appellate Court under the Code of Civil
Procedure, 1908, and shall have the power to stay the operation of
any order against which an appeal is made.  Section 107(1) read with
Order XLI, Rules 27 to 29 deal with the powers of the Appellate Court
to take additional evidence or to require such evidence to be taken.
Section 107(2) states that the Appellate Court shall have the same
powers   and   shall   perform   as   nearly   as   may   be   the   duties   as   are
conferred   and   imposed   by   the   Code   on   the   Courts   of   original
jurisdiction in respect of the suits.  Under Order XVIII, Rule 4 of the
Code  of Civil  Procedure, the Trial Court  has power  to  record  the
evidence.   Under Section 3 of the Oaths Act, 1969, all the Courts
having by law or consent of parties authority to receive evidence, have
power to administer oaths.
5. In the decision of this Court in the case of Mohammad Salam
Anamul Haque, cited supra, the question was whether the order passed
by the School Tribunal in exercise of its appellate jurisdiction under
Section 9 of the MEPS Act can be executed in terms of the Code of
Civil Procedure so as to have an alternate remedy available instead of
filing the contempt proceedings.  After considering all the provisions
of the MEPS Act, this Court has held in para 11 of its decision as
under :
“11. Perusal of the above quoted provisions shows that the
Appellate Court has been conferred with the same powers and
same duties  as are  conferred  and imposed   by the  Code  on
courts of original jurisdiction in respect of the suits instituted
therein.   It is, thus, clear that the Appellate Court under the
Civil Procedure Code has the same powers as the trial court
under   the   Civil   Procedure   Code   and   therefore,   the   tribunal
constituted under the Act will also possesses all the powers of
the Civil Court under the Civil Procedure Code.  Thus, as the
tribunal possesses all the powers that are conferred by the Code
on Courts of original jurisdiction, it can definitely be termed as
“Civil  Court” and therefore the order made by the tribunal
would be an order within the meaning of section 2(14) of the
Civil  Procedure Code. It may be pointed out here that this
Court   by   its   judgment   in   the   case   of  Janata   Janardan
Shikshan   Sanstha  v/s.  Dr.   Vasant   P.   Satpute,
1986 M.L.J., page 260  and also in its judgment in  Rasta
Peth   Education   Society,   Pune  v/s.  Pethkar   Udhao
Bhimashankar, 1994 M.L.J. 725, has held that a civil court
can entertain a civil suit relating to the subject matter on which
the appeal under section 9 of the Act can be filed before the
School Tribunal.  Thus, the jurisdiction of the Civil Court and
the Tribunal has been held to be concurrent.  Under Section 9
of the Civil Procedure Code the courts under the Civil Procedure
Code have jurisdiction to entertain all suits of civil nature. It is,
thus, clear that the dispute that is raised before the tribunal
under the Act is a dispute of a civil nature and therefore it can
be safely said that the tribunal for the purpose of deciding
appeals filed before it can be said to be civil  court for the
purpose of Civil Procedure Code and therefore, an order made
by the Tribunal is an order within the meaning of the Civil
Procedure Code.  I have already pointed out above that under
section 36 of the Civil Procedure Code, provisions in the Code
relating to execution of decree are applicable to the execution of
the order.  Therefore, if the order made by the School Tribunal
is an order within the meaning of Civil Procedure Code, then
the provisions in the Code relating to execution of a decree are
available   for   enforcing   or   executing   an   order   made   by   the
School Tribunal.  Therefore, when the School Tribunal makes
an order for reinstatement and for payment of back wages, the
Appellant in whose favour such an order is made can definitely
approach   the   School   Tribunal,   which   made   the   order   for
execution of that order in the same manner in which the decree
under   the   provisions   of   the   Civil   Procedure   Code   is   to   be
executed.   In   such   situation,   either   the   tribunal   may   itself
execute the decree or it may transfer the decree for execution to
another court in accordance with the provisions contained in
the Civil Procedure Code.  It is thus clear to my mind that an
order   made   by   the   School   Tribunal   is   an   order   which   is
executable under the provisions of the Civil Procedure Code.”
It   is   thus   the   ratio   of   the   decision  of   this   Court   in   the   aforesaid
judgment that the Tribunal possesses all the powers that are conferred
by the Code on the Courts of original jurisdiction and it can definitely
be termed as “Civil Court” and, therefore, the order made by the
Tribunal would be an “order” within the meaning of Section 2(14) of
the   Civil   Procedure   Code,   which   can   be   executed   in   terms   of
Section 36 therein.
6. In the decision of the Apex Court in the case of  Tajender
Singh Ghambhir, cited supra, it has been held in para 11 therein as
under :
“11. The High Court was also in error in holding that the
deficiency in court fee in respect of the plaint cannot be made
good   during  the  appellate  stage.    In   this  regard,  the  High
Court, overlooked the well­known legal position that an appeal
is continuation of the suit and the power of the appellate court
is co­extensive with that of the trial court.  It failed to bear in
mind that what could be done by the trial court in proceeding
of the suit, can always be done by the appellate court in the
interest of justice.”
It is thus clear that it is well­known legal position that an appeal is
continuation   of   the   suit   and   the   power   of   the   Appellate   Court   is
co­extensive with that of the Trial Court, and what could be done by
the Trial Court in the proceedings of the suit, can always be done by
the Appellate Court in the interest of justice.
7. In view of above, it has to be held that the School Tribunal
exercising jurisdiction under Section 9 of the MEPS Act possesses all
the powers that are conferred by the Code on the Courts of original
jurisdiction and the Tribunal can be termed as a “Civil Court”, which
possesses power under Order XVIII, Rule 4 of the Code to record the
oral evidence of witnesses.  Even if the provision is titled as “Right of
appeal to  Tribunal to employees of a private school”, it can be termed
as continuation of suit and the power of the School Tribunal becomes
co­extensive with that of the Trial Court and what could be done by
the Trial Court in the proceedings of the suit can always be done by
the   School   Tribunal   in   its   appellate   jurisdiction   in   the   interest   of
justice.  The School Tribunal can, therefore, conduct the proceedings
of an appeal as the Court of original jurisdiction to administer oath,
record the evidence as contemplated by Order XVIII, Rule 4 of the
Code of Civil Procedure by permitting the parties to examine and
cross­examine the witnesses, etc.  In view of this, the School Tribunal
has committed an error in holding that in exercise of its appellate
jurisdiction,   as   provided   under   Order   XLI   of   the   Code   of   Civil
Procedure, the parties cannot be permitted to produce evidence.  
8. It would, however, be the discretion of the School Tribunal
whether the parties are to be permitted to lead oral evidence in the
interest of justice, keeping in view the facts and circumstances of each
case.  While doing this, the School Tribunal may have regard to the
nature of factual dispute, the burden of proof, the presumptions in
law,   the   choice   of   the   party   to   discharge   such   burden   or   rebut
presumptions in law by leading oral evidence.  In order to cut short
the controversy and concentrate upon the material controversy, it shall
always be desirable for the School Tribunal to frame an appropriate
issue or the issues of facts so that the party desiring to discharge the
burden or rebut the presumptions in law, is not deprived of such
opportunity to lead evidence to prove facts in support of its stand.  It
will not be a hard and fast rule to permit the parties in each case to
lead oral evidence.  The School Tribunal may decide cases on the basis
of pleadings and the documents on record and/or on the basis of
affidavits if it is possible, depending upon the facts and circumstances
of such cases.
9. In the result, the petition is allowed.   The impugned order
dated 21­11­2014 passed by the School Tribunal, Amravati, in Appeal
No.65 of 2003 is hereby quashed and set aside.  The School Tribunal
shall permit the parties to lead evidence in support of their rival claims
either   by   examination­in­chief   or   by   filing   an   affidavit   in   lieu   of
examination­in­chief,   and   the   party   filing   an   affidavit   in   lieu   of
examination­in­chief shall be subject to cross­examination by the other
side.   The   parties   to   appear   before   the   School   Tribunal   on
7­4­2015.  The School Tribunal shall decide the appeal expeditiously.
10. Rule is made absolute in above terms.  No order as to costs.   
 
                                        Judge


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