Civil Court Not Barred By Education Act To Hear Recovery Suit Filed By Teacher 'Discharged' From Service Sans Order On Her Claim: Karnataka HC

A Division bench of Dr.Justice H.B.Prabhakara Sastry and Justice S. Rachaiah recently set aside the order dated November 9, 2020 passed by the civil court by which it had rejected the plaint filed by an Urdu teacher, on the grounds that it had no jurisdiction to try the suit. The court directed the Trial Court to proceed with the matter in accordance with law.

The bench said, "The Trial Court without noticing the absence of any order of dismissal, removal or reduction of the rank as the subject matter of litigation, has embraced section 94 and section 96 of Education Act and erroneously held that the remedy available to the plaintiff is only under section 96(3)(a) of the Education Act. Since the said finding now proved to be an erroneous finding, the same deserves to be reversed and the matter requires to be restored on the file of the Trial Court for its further proceeding in accordance with law."

Case Background:

The plaintiff Rabiya Abdul Hamid Bepari (62) in the plaint said she was appointed on 25.6.1997 on temporary basis as a Teacher for a period of one year in Urdu Medium High School being run by the defendant Nos.1 and 2. On 01.12.1998, she was appointed as a full-time Urdu Assistant Teacher for Urdu Medium High School run by defendant No.1.

According to the plaintiff, she worked in the said institution for more than 16 years as a Teacher. On the date 01.06.2015, the defendant - Institution orally terminated the services of the plaintiff without there being any reason and also without any written intimation. The reason assigned by the Management at the inquiry made by the plaintiff was that the very school itself was closed from 01.06.2015, as such, the services of the plaintiff could not be continued.

Further it was said from 01.12.1998 till May 2015, as a Teacher, she has received a total salary of `4,73,700/- from the defendant - Institution when in fact the defendants ought to have paid her a total amount of `24,83,825/-. Thus, there was a short payment of a sum of `20,10,125/- to the plaintiff, which she has claimed as arrears of salary.

Petitioners submissions:

Advocate P G NAIK for the petitioner submitted, "Though she was asked not to come to school as a teacher with effect from the date 01.06.2015, the plaintiff/appellant has chosen not to challenge the said order, because the school itself came to be closed from the said date, as such, her service from the school is not a dismissal, retrenchment or removal from the service. That being the case, she cannot prefer any appeal before the Tribunal under section 94 of the Education Act.

Moreover, her claim in the original suit is only for the arrears of salary, in which regard, for her request to pay the arrears, the Management has not passed any order. Thus, she cannot even approach the Commissioner under Section 131 of the Education Act. Therefore, the only remedy available to her was through the original suit.

Court findings:

The bench noted that nothing is placed by the respondents on record to show that on the alleged oral demands and claims made by the plaintiff claiming the alleged arrears of salary, any order in writing has been passed by the respondents. Even according to the respondents, there is no order either of dismissal or for removal or even of reduction of the plaintiff in rank in its Institution.

Referring to Section 94 and section 96 of the Education Act the bench said,

"When the stoppage of the work of the plaintiff with the defendants' - establishment cannot be considered as a dismissal or removal or even as reduction of rank, the question of she preferring any appeal under section 94 to the Tribunal would not arise. Even under section 96 of the Education Act, the Educational Appellate Tribunal may consider the order which is alleged to be arbitrary, perverse, mala fide or violative of rules of natural justice."

In the instant case, since no such order was passed and the plaintiff has not called the act of the defendants as an act of her dismissal or removal from the services, the appeal will not lie under section 94 of the Education Act.

Noting that no order regarding the claim of the plaintiff towards her alleged arrears of salary has been passed by the defendants. As such, in the absence of any such order passed by the Management against the alleged claim of the plaintiff, she cannot take the grievance even in the form of a revision under section 131 of the Education Act.

The bench then held, "Therefore remedy available, when it is neither in the form of an appeal before the Tribunal nor in the form of a revision under section 131 of the Education Act, it ought to be only before a competent Civil Court."

Further the court clarified no doubt, section 96 sub-section (5) of the Education Act states that, no Civil Court shall have jurisdiction in respect of matters over which the Tribunal exercises any power under the Education Act.

It said, "But the analysis made above shows that, with respect to the claim made by the plaintiff in her plaint, the Tribunal cannot exercise its power, since it is not an order of dismissal, removal or reduction in the rank. Thus, the bar under section 96(5) of the Education Act is also not attracted. Thus, the competent Civil Court cannot say that it has got no jurisdiction under section 96(5) of the Education Act."

Case Title: Rabiya Abdul Hamid Bepari v. The Chairman, School Managing Committee, Volkart Academy.

Case no: R.F.A.NO.100061/2021

Date of Order: 24th Day Of February, 2022

Appearance: Advocate P G Naik for petitioner; Advocate Z.N. Hansi for respondents

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