2012(7) ALL MR 125
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.M. SAVANT, J.

The Secretary Sadguru Jangli Maharaj Shikshan Sanstha & Anr. Vs. Sou. Sunita Laxman Kaledhonkar & Ors.

Second Appeal Nos. 171 of 2010,Second Appeal Nos. 313 of 2010,Civil Application No. 479 of 2010

7th May, 2012

Petitioner Counsel: Shri SANDEEP PATHAK, Shri S.B. DESHMUKH
Respondent Counsel: Shri A.M. JOSHI

(A) Civil P.C. (1908), O.41 R.31 - Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act (1977), S.9 - Appeal - Suit filed for recovery of arrears - Though specific grounds as regards limitation was taken no issue framed by first Appellate Court - Judgment and order passed by said appellate Court is vitiated on that ground. 2001 (3) SCC 179 Applied. (Para 5)

(B) Maharashtra Employees of Private Schools (Conditions of Service) Rules (1981), R.13 - Suit for arrears of salary - Claim of plaintiff for vacation salary rejected merely on ground that plaintiff was temporary teacher - Appellate Court ought to have considered said claim on touchstone of R.13 and whether statutorily plaintiff was entitled to such salary - Matter remanded to lower Appellate Court for denovo consideration. (Para 6)

Cases Cited:
Santosh Hazari Vs. Purushottam Tiwari, 2001 (3) SCC 179 [Para 5]


JUDGMENT

JUDGMENT :- Admit, with the consent of the learned counsel for the parties, taken up for hearing forthwith.

2. The above Second Appeals arise out of the common judgment and order dated 11th December 2009, passed by the learned Adhoc District Judge-I, Islampur, by which the Appeal filed by the Original Plaintiff being Regular Civil Appeal No. 28 of 2005 and the Appeal filed by the Management- Original Defendant Nos. 3 and 4 i.e. Regular Civil Appeal No. 38 of 2004 came to be partly allowed and resultantly, the judgment and decree passed by the trial Court in Regular Civil Suit No. 9 of 2000, came to be set aside and was substituted by the decree passed by the lower Appellate Court.

The Appellant in Second Appeal No. 313 of 2010 is the original Plaintiff, where as the Appellants in Second Appeal No. 171 of 2010 are the original Defendant Nos. 3 and 4 in Regular Civil Suit 9 of 2000. The decree passed by the lower Appellate Court makes the Defendant Nos. 1 to 4 jointly and severally liable for the salary for the period 7-9-1995 to 30-4-1996, 10-7-1996 to 30-4-1997 and 1-7-1997 to 30-4-1998 to be paid to the plaintiff at the rate of the B.Ed. scale. The decree also directs the Defendants to pay compensation of Rs.5000/- to the Plaintiff jointly and severally.

3. It is not necessary to burden this order with unnecessary facts. Considering the directions that are ultimately to be issued, the facts necessary to be cited for adjudication of the above Appeal, in a nutshell, can be stated thus:

i. The Plaintiff filed the suit in question for recovery of arrears of salary from 7-9-1995 to 30-6-1998, 1998, the total amount being Rs. 1,43,295/-. The Plaintiff was appointed as an Assistant Teacher by the Defendant No.4 i.e. Sadguru Madyamik Ashram School and worked as such from 9.6.1995 till 30.6.1998. Appointment of the Plaintiff was made pursuant to the advertisement issued by the Defendants dated 26th August, 1995. The said advertisement was in respect of the reserved category candidate. However, since such candidate was not available, the Plaintiff was appointed. Thereafter, the sanction was received by the Defendant No.3 vide NO.222/97/98 dated 9.10.97. However, later on, finding that the Plaintiff had crossed the minimum age limit at the time of appointment, her services came to be terminated by the Management, as the approval was not granted by the authority. It was the stand of the Defendants that since the appointment of the Plaintiff was not as per the Rules, the Plaintiff was not entitled to the salary for the period for which she worked i.e. from 1995 to 1998. This resulted in the suit being filed by the plaintiff.

ii. The Defendants, filed their written statement. Insofar as the Defendant Nos. 1 and 2 are concerned, who are the State and the District Social Welfare Officer, they took a stand that since the Plaintiff has been appointed by the Defendant Nos. 3 and 4, they (Defendant Nos. 3 and 4) would be responsible for payment of the salary of the Plaintiff. To this, the stand taken by the Management i.e. Defendant Nos. 3 and 4 was that since the Defendant No.2 - the District Social Welfare Officer had not informed them in writing about sanction or rejection of the proposal of the Plaintiff, it is the Defendant Nos.1 and 2 who would be liable to pay the salary of the Plaintiff from the grants which are made available to the Management.

iii. In the context of the present Second Appeals, it is required to be noted that the Defendant Nos. 3 and 4 had raised the issue of limitation in their written statement, contending that the suit as filed in the year 2000 was beyond limitation insofar as the claim prior to the year 1997 is concerned. The trial Court, in view of the said pleading, framed the issue of limitation which is issue No.7 and answered it in the affirmative. The trial Court has held that the Plaintiff has made the demand of salary by filing an application to the Social Welfare Officer on 6th January, 1998 which was sent to the Defendant No.2 through the Defendant No.4 and therefore the Plaintiff has, by the said letter, claimed salary from the Defendants on 6th January, 1998. Since the Plaintiff has been making demand from time to time for the said salary, the suit field in the year 2000 was within limitation. The trial Court, insofar as the other issues are concerned, held that since the Plaintiff was appointed in a post for which the qualification was D. Ed., the Plaintiff would be entitled to the salary in the D.Ed. scale for the period 7-9-1995 to 30-4-1996, 10-7-1996 to 40-4-1997 and 1-7-1997 to 30-4-1998. The trial Court dismissed the suit against the Defendants Nos. 1 and 2, however granted compensation to the Plaintiff of Rs. 5,000/- which was directed to be paid by the Defendant Nos. 3 and 4.

iv. Both, the Plaintiff as well as the Defendant-Management, aggrieved by the decreeing of the suit, filed the Appeals. The Plaintiff, it seems was aggrieved by the fact that she was granted D.Ed Scale; whereas the Defendant Nos. 3 and 4 were aggrieved by the fact that the State and its authority have been absolved from the liability under the decree.

v. As indicated both the Plaintiffs and the Defendant Nos. 3 and 4 have filed separate Appeals challenging the decree being Regular Civil Appeal No. 28 of 2005 and Regular Civil Appeal No. 38 of 2004, respectively.

vi. In so far as the issue of limitation is concerned, the Defendants have, in their grounds of Appeal in the lower Appellate Court, specifically raised the issue which can be seen from ground no.3, which is to the effect that the trial court has not considered th question of limitation i.e. Article 7 of the Limitation Act. The lower Appellate Court, by the impugned judgment and order, has upset the decree passed by the trial Court. The lower Appellate Court on a consideration of the letter of appointment and having regard to the class for which the Plaintiff was appointed, reached the conclusion that the Plaintiff, being appointed for the VIIIth Std. to teach Sanskrit for which the qualification required is B.Ed., would be entitled for B.Ed scale for the period mentioned in the decree passed by the trial Court. The lower Appellate Court also held that the since the communication as regards the acceptance of the proposal of the Management was not sent to the Management within reasonable time both, the Management as well as the State, would be liable for the payment to be made to the Plaintiff. The compensation awarded to the Plaintiff was also directed to be paid jointly and severally by the Defendants to the suit.

4. The Defendant Nos. 3 and 4 have filed the above Second Appeal No.171 of 2010, whereas the Plaintiff has filed the companion Second Appeal No. 313 of 2010. The Defendant Nos. 3 and 4, it seems are aggrieved by the fact that the Plaintiff has been granted the B. Ed. scale when she was not entitled to the same on the basis of the contract of employment, whereas the Plaintiff has filed the Second Appeal aggrieved by the fact that the whilst deciding the Appeal the lower Appellate Court has wrongly rejected the Plaintiff's claim for vacation salary and that in the course of adjudicating upon the Appeal, the lower Appellate Court has considered the status of the Plaintiff and has come to a conclusion that the Plaintiff is a temporary teacher, though the jurisdiction in that regard is vested with the School Tribunal constituted under Section 9 of the Maharashtra Employees of Private Schools (Conditions of service) Regulation Act 1977. The substantial questions of law which therefore arise for consideration in the above Second Appeal are :

i. Whether the suit filed by the plaintiff for recovery of the arrears from the period 1995 to 1998 or part of it was within limitation ?

ii. Whether the Courts below have erred in refusing the vacation salary to the plaintiff as posited in Rule 13 of the MEPS Rules?

5. Insofar as the first substantial question of law is concerned, as mentioned hereinabove, a specific plea has been taken by the Management i.e.the original Defendant Nos. 3 and 4 in their written statement that part of the claim in the said suit is barred by limitation, considering that the claim is for the period from 1995 to 1998 and the Suit is filed in the year 2000. The trial Court had therefore framed the issue as regards limitation which issue was answered in favour of the plaintiff by holding that the Plaintiff has been demanding salary from time to time and has demanded arrears of salary by letter dated 6th January, 1998 and therefore the suit filed in the year 2000 was within limitation.

The Defendants as can be seen have taken a specific ground in the grounds of Appeal as regards limitation. The lower Appellate Court, as can be seen from its impugned judgment and order, has adverted to the said ground in Paragraph 4 as well as Paragraph 5 of the impugned judgment and order, but most significantly an issue was not framed to the said effect by the lower Appellate Court. The lower Appellate Court, in terms of the appellate powers that have been confirmed under Order 41 Rule 31 of the Civil Procedure Code and more so in the light of the findings recorded by the trial Court on the said issue, was obligated to frame the said issue of limitation and ought to have answered the said issue. Having not done so, the judgment and order passed the lower Appellate Court is vitiated on the said ground, as it is well settled by the judgment of the Apex Court in the matter of Santosh Hazari Vs. Purushottam Tiwari, reported in 2001 (3) SCC 179, that the lower Appellate Court has to come into close quarters with the reasoning assigned by the trial Court and then assigns its own reasons in case it arrives at a different finding.

6. In so far as the Second Appeal filed by the Plaintiff is concerned, though there is substance in the contention of Shri Joshi, learned counsel for the Appellant/Plaintiff that the lower Appellate Court has ventured into the domain of the School Tribunal whilst deciding the Appeal so as to determine the status of the Plaintiff, in my view considering the fact that the original Plaintiff has expired, the said issue need not be gone into in view of the supervening event. However, insofar as the claim of the Plaintiff for vacation salary is concerned, the same has been rejected by the lower Appellate Court on the ground that the Plaintiff was a temporary teacher. The said claim of the Plaintiff has its basis in Rule 13 of the MEPS Rules 1981. The finding recorded by the lower Appellate Court, therefore, is de hors the said Rule 13 of the MEPS Rules and the claim has merely been rejected on the ground that the Plaintiff was a temporary teacher. The lower Appellate Court ought to have considered the said claim on the touchstone of Rule 13 of the MEPS Rules and whether statutorily the Plaintiff was entitled to the vacation salary. In my view therefore the impugned judgment and order dated 11th December, 2009 passed by the lower Appellate Court would have to be set aside and the Appeals being Regular Civil Appeal No. 28 of 2005 and Regular Civil Appeal No. 38 of 2004 would have to be relegated back to the lower Appellate Court for a de novo consideration, in the light of the observations made hereinabove. The questions of law are therefore answered accordingly.

7. On remand the lower Appellate Court to decide the said Appeals within a period four months from the first appearance of the parties. The learned counsel appearing for the appellants in both the Appeals state that the parties would appear before the lower Appellate Court on 18th June, 2012. The Appeals therefore to be decided within four months thereafter by giving proper opportunity to the parties. The Appeals to be decided on their own merits and in accordance with law uninfluenced by the earlier orders and the present order.

8. The amount of Rs.46,000/- which was deposited by the Management in the lower Appellate Court by executing an indemnity bound by the Plaintiff, for the the present is not interfered with. However, the same would be contingent upon the decision of the lower Appellate Court on remand. The indemnity given by the Plaintiff to continue until the decision of the lower Appellate Court and would be subject to such further directions that would be issued by the lower Appellate Court.

9. The above Second Appeals are therefore allowed to the aforesaid extent with parties left to bear their respective costs.

10. In view of the disposal of the Second Appeals, the Civil Application does not survive and is accordingly disposed of as such.

Appeal allowed.