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 CivilProcedure 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
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
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 CivilProcedure 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,Vs Bharti w/o Khanderao Dabhade,
NAGPUR BENCH, NAGPUR
Writ Petition No.32 of 2015
Shri Brijlal Biyani Vidya Niketan Shikshan Prasarak Mandal,Vs Bharti w/o Khanderao Dabhade,
Coram : R.K. Deshpande, J.
Dated : 31st March, 2015
Citation;2016(1)ALLMR797
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 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 :
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
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
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
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
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
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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