1. By way of this petition, the present petitioner has prayed for quashing and setting aside the impugned order dated 04.11.2004 in Application No. 165 of 1997 and order dated 07.10.2011 in Review Application No.6 of 2011. The petitioner has further prayed to stay the further proceedings of the Execution Application No.5/2006.
2. The brief facts leading to filing of the present petition are that the petitioner is a public trust who is running and managing a primary School at Ahmedabad. The respondent No.1 herein has made an application to the petitioner on 11.03.1986 for getting the post of a clerk. At the relevant time Shri Devendra J. Bhatt, the husband of the respondent No.1 was the principal of the school. Shri Devendra J. Bhatt, the husband of the respondent No.1 issued the appointment letter in the capacity of principal and the same was accepted by the respondent No.1 on 16.06.1986. The service book of the respondent No.1 was prepared by the principal i.e. the husband of the respondent No.1, wherein, from 16.06.1986 to 01.06.1996, the designation of respondent No.1 is shown as clerk. Due to some allegations and as the post of a clerk is not in the set up of a primary school, the services of the respondent No.1 was terminated w.e.f. 30.06.1997 vide the order dated 27.06.1997. The respondent No.1, challenged the termination order by filing an application bearing No.165 of 97 before the Tribunal and the Tribunal has allowed the said application. Thereafter the present petition is filed by the petitioner-trust.
3. Ld.
Counsel for the petitioner contended that the Tribunal has no jurisdiction to entertain and adjudicate the dispute between the non teaching staff in management of the private unaided primary school.
4. It is the case of the petitioner that the petitioner has got relevant document against the respondent No.1 herein, which could not be produced at the time of hearing of the Application No.165 of 1997 due to having ill relation with the husband of the respondent No.1, who happened to be the Head Master of the Primary School. On the basis of material documentary evidences, the petitioner trust has filed Review Application No.6 of 2011 before the Tribunal. The Review Application no.6 of 2011 filed by the petitioner before the Hon'ble Tribunal,came to be rejected, on the ground of gross delay as well as on the ground of lack of Bona-fide.
5. He has relied upon the judgment of the Supreme Court in the case of Chief Engineer, Hydel Project and Ors. v. Ravinder Nath and Ors., reported in AIR 2008 (SC) 1315, more particularly, para 10 thereof, which reads as under:
"The second decision came in Jitendra Nath Biswas's case (supra), wherein this Court specifically held, interpreting Section 9 of the CPC that the Civil Court shall have no jurisdiction where its jurisdiction is expressly or impliedly barred. The Court held: "It could not be disputed that a contract of employment for personal service could not be specifically enforced and it is also clear that except the industrial law, under the law of contract and the civil law, an employee whose services are terminated could not seek the relief of reinstatement with back wages. At best he could seek the relief of damages for breach of contract. The manner in which the relief has been framed by the appellant plaintiff in this case, although he seeks a declaration and injunction but in substance it is nothing but the relief of reinstatement and back wages. The relief could only be available to a workman under the Industrial Disputes Act."
The Court, therefore, proceeded to hold that the civil court's jurisdiction was barred. In this case very peculiarly it was not disputed that the Industrial Employment (Standing Orders) Act was also applicable to the workman and an inquiry for misconduct was conducted against the appellant in accordance with the standing orders. It was argued before the court, however, that since it was solely the discretion of the Conciliation Officer to proceed with the conciliation proceedings and since even after the report given by the Conciliation Officer it was the discretion of the State Government to make a Reference or not, the civil court#s jurisdiction was not barred. This Court repelled that contention after discussing the duties of the Conciliation Officer and held that the civil court's jurisdiction was barred."
He, therefore, contended that since the order passed by the Tribunal is without jurisdiction, the same requires to be quashed and set aside.
6. The original judgment of the Tribunal is of year 2004 and application seeking review of the said order was filed in the year 2011 i.e. after almost 7 years. The counsel for the petitioner sought to justify the delay on the ground that the husband of the petitioner was Principal and he was in possession of the original documents. However, husband of the petitioner was dismissed in the year 1997 and he was reinstated in the year 2009. The fact remains that the order is of year 2004 and it was sought to be reviewed in year 2011, i.e. after a period of 7 years, they have approached by way of this petition In my view, the Tribunal has rightly rejected the same. The question of jurisdiction ought to have been raised and the judgment which is sought to be relied upon, in my view, before the Tribunal and not at this belated stage. This petition filed under Article 227 of the Constitution of India is not maintainable as it would deprive the legitimate right of respondent No.1. The petition, being merit-less, deserves to be dismissed and therefore the same is dismissed accordingly.
[K S JHAVERI, J] Ankit* Top