1. The present petition is directed against the judgement dated 8.1.2002 passed by the Gujarat Secondary Education Tribunal (hereinafter referred to as the 'Tribunal') in Application No.537 of 1990, whereby the Tribunal has held that the applicant would be entitled to receive salary for the period from 15.6.1987 to 20.4.1990 as prescribed by the State Government from the fund of the School Management Trust and not from the grant and the School Management is directed to pay the salary accordingly.
2. The short facts are that the petitioner Trust made the application for recognition of secondary section of the School in 1987 and anticipating the recognition of the School, the petitioner School admitted certain students and started secondary section. However, as the recognition was not available at the relevant point of time, no regular appointment of teachers could be made. As per the petitioner, the respondent No.1 approached them and he offered his service and, therefore, he was appointed as Honorary Teacher in the School. Thereafter, on 1.11.1988 the recognition was granted with retrospective effect in pursuance to which the recruitment process was also undertaken, but the respondent was not selected as the regular teacher, since he was not found suitable. Under these circumstances, the respondent No.1 preferred application before the Tribunal being Application No.537 of 1990 and prayed that respondent therein, who is the petitioner herein be directed to pay the salary, declaring that the action of the School of not paying the salary from 1987 to 20.4.1990 be declared as illegal and it may be declared that the applicant is entitled to the salary and school be directed to pay the salary. The Tribunal at the conclusion of the proceedings passed the above referred judgement. Under these circumstances, the present petition before this Court.
3. It may be recorded that this Court, when considered the matter for the first time on 13.8.2002 interim relief was granted on 29.8.2002 against the operation and implementation of the judgement and order of the Tribunal on condition that the amount of Rs.8,000/- is deposited by the petitioner herein with the School and the learned Counsel states that the amount has been deposited and she is having the receipt for the same.
4. I have heard Ms.Mamta Vyas, learned Counsel for the petitioner, Mr.Bhavsar, learned Counsel for respondent No.1 and Mr.Patel, learned AGP for respondent No.2.
5. It may also be recorded that the learned Counsel for the parties have made available to the Court the record of the proceedings before the Tribunal namely of the original application made before the Tribunal and the certificate dated 4.5.1990, which has been referred to by the Tribunal in the impugned judgement.
6. It is hardly required to be stated that the Tribunal is a creature of statute and it enjoys the power within the four corners of the statute. It is true that it has incidental power of granting interim order and has also incidental power to pass further consequential order, but such cannot exceed the jurisdiction so vested in it by the provisions of Section 38 of Gujarat Secondary Education Act, 1972 (hereinafter referred to as the 'Act'). Section 38 of the Act for ready reference reads as under:-
“Section 38 .- (1) Where there is any dispute or difference between the manager of a registered private secondary school and any person in service of such school as head- master, a teacher or a member of non-teaching staff, which is connected with the conditions of service of such person, the manager or, as the case may be, the person may make an application to the Tribunal for the decision of the dispute.
(2) As from the appointed day the State Government or any officer of the State Government shall have no jurisdiction to decide any dispute of the nature referred to in sub-section (1) and any such dispute pending before the State Government or any officer of the State Government immediately before the appointed day shall, as soon as may be, after the appointed day, be transferred to the Tribunal for its decision.”
7. The aforesaid shows that the Tribunal has power to decide the dispute between the Manager of registered Private Secondary School and any person in service of the School, may be teaching or non-teaching staff, which is connected with the conditions of service of such person. Therefore, the requirement is that such person should be in service of such School and it is apparent from the evidence, which has been discussed by the Tribunal that respondent No.1 was not appointed as a teacher after undergoing regular selection process as per Section 35 of the Act. It is true that even if a person is not appointed by regular selection process, but is taken in service, the Tribunal will have the jurisdiction to decide such dispute. But in the present case it is also an admitted position that the petitioner was appointed as honorary teacher. The fact that the title is mentioned as that of 'honorary' can be considered in contra- distinction to the word 'service' by way of regular appointment or by way of appointment outside the set up or in contra-distinction to the relationship of 'master and servant'. When a person is appointed on any honorary post, he enjoys honour and may be rendering service, which could be termed as service in common parlance for the purpose of benefit of the society, but such cannot be equated with the contractual arrangement of service, so as to bring about relationship of master and servant. If a person is appointed as honorary, he may not be in a position to claim wages or remuneration for the service rendered by him unless it is expressly provided by way of a token for such honour or otherwise. Same situation may arise vice his liability also unlike the person engaged in service by way of contract of master and servant or otherwise, unless it is expressly provided at the time of appointment. In the present case, there is no appointment order issued, but the only reliance was placed upon the certificate issued by the petitioner Trust for the purpose of experience for rendering service on honorary basis. Based on the said certificate, the respondent No.1 filed application before the Tribunal. There is no averment made in the application made before the Tribunal that he was appointed on honorary basis, nor it is pleaded by respondent No.1 in the application before the Tribunal that though he was appointed on honorary basis for all purpose his appointment was as teacher and the use of the words 'honorary or the title honorary' was sham and bogus, otherwise he was teacher for all purpose. If the evidence is considered as referred to by the Tribunal and rather in examination-in-chief and in cross- examination of the respondent No.1 herein, it appears that when the appointment order is produced the appointment is on honorary basis for honorary service. In the cross-examination, respondent No.1 has stated that orally he was conveyed that the wages shall be paid, but has not been paid, he demanded for wages orally, but not in writing. It is on account of the same. The Tribunal has found that the respondent No.1 was actually working as teacher and, therefore, would be entitled to the salary.
8. It is true that the principles of pleading and Evidence Act are not applicable in strict sense to the proceedings before the Tribunal, but the principle analogues to the same is required to be applied broadly for the exercise of the jurisdiction by the Tribunal. If there was no pleading by the original respondent No.1 before the Tribunal, the Tribunal could not examine the aspect as to whether the appointment was as 'honorary or not'. If the evidence is considered with the pleadings made before the Tribunal in the application by the respondent No.1 it may appear that the respondent No.1 has not even disclosed all full facts before the Tribunal stating that he has rendered service as a teacher on 'honorary basis'. Under these circumstances, if the party to the proceedings has not disclosed all full facts and has taken a different stand at the time of evidence, that too in the cross- examination, such could not have been countenanced by the Tribunal while deciding the application, taking into consideration the principles of pleading and evidence since they run counter in the present case. Further, when a person is rendering service on 'honorary basis', it cannot be said that there was relationship of master and servant or that the person was in service and, therefore, it would straight away fall within the jurisdiction of the Tribunal under Section 38 of the Act. It is true that in a given case a person is really appointed as teacher and by a sham and bogus nomenclature it is titled as 'honorary teacher', the case may fall within the jurisdiction of Tribunal, if such person comes with express pleading and evidence is led for such purpose namely that for all purpose, the person was appointed as teacher or the staff of the school rendering service as teacher or otherwise and there is further evidence is led for such purpose. Nothing is available in the present proceedings and hence, it appears that the Tribunal has exceeded the jurisdiction so vested in it, more particularly in absence of any pleading or proper material coming on record that the appointment of the respondent No.1 was as a teacher, but the nomenclature given as honorary was sham and bogus. If such a case is pleaded, opportunity is given to the School Management and thereafter the Tribunal decides the matter on the said aspect, it may be a different exercise of the jurisdiction, but in a case where there is no pleading and no evidence in conformity with the pleading is available and the pleading is rather by suppressing that the respondent No.1 was rendering service on honorary basis, the Tribunal, if has exercised the jurisdiction, it can be said that the Tribunal has exceeded its jurisdiction.
9. In view of the aforesaid observations and discussion, interference under Article 227 of the Constitution is called for, since the Tribunal has exceeded the jurisdiction. Hence, the impugned order cannot be sustained in the eye of law and, therefore, deserves to be set aside. Hence, the same is set aside and consequently the application made before the Tribunal shall stand dismissed.
10. Before parting with, it may be recorded that the learned Counsel for the Advocate, at the outset, declared before the Court that since the original respondent No.1 has rendered service on honorary basis, if the amount of Rs.8,000/-, which is deposited by the petitioner School is ordered to be paid to respondent No.1, the petitioner has no objection for such purpose. Hence, in view of the said declaration, it is directed that the respondent No.1 shall be paid the said amount of Rs.8,000/- deposited by the petitioner in the present proceedings.
11. In the result, the petition is allowed to the aforesaid extent with the direction to pay the amount of Rs.8,000/- to respondent No.1. Rule made absolute accordingly. Considering the facts and circumstances, no order as to costs. Office to pay the said amount to respondent No.1 or his authorized Advocate.
(Jayant Patel, J.) vinod