Adarsha Shikshan Sanstha Through Its Secretary and Head Master, Krishi Pandit Bhakojirao Dhekale High School Vs. Jaiprakash Ramvilas Lohia and State of Maharashtra - Court Judgment

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labour and industrial - termination of school employee from service - complaint before labour court - jurisdiction of labour and industrial court over employee covered under special legislation - section 9 of maharashtra employees' of private school (conditions of service) regulation act, 1977 (m.e.p.s. act) - respondent no. 1 peon was terminated from petitioner-school - respondent filed complaint before labour court alleging unfair labour practices by petitioner-school - labour court directed reinstatement and payment of backwages to respondent - ruling of labour court confirmed by industrial court - hence, present petition - whether labour court and industrial court have jurisdiction to entertain said complaint, when separate machinery is provided under m.e.p.s. act - held, when there is special legislation covering employees of private school, remedy is to approach the school tribunal and not labour court - in the circumstances, the impugned order passed by the labour court, as confirmed by the industrial court, is without jurisdiction and therefore same is set aside - petition allowed - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - (3) notwithstanding anything contained in sub-section (2) the tribunal may entertain an appeal made to it after the expiry of the said period of thirty or sixty days as the case may be, if it is satisfied that the appellant has sufficient cause for not preferring the appeal within that period. act is a special legislation enacted for the purpose of regulating recruitment and conditions of service of employees of certain private schools in the state, with a view to providing such employees security and stability of service to enable them to discharge their duties towards the pupils and their guardians in particular, and the institution and the society in general, effectively and efficiently.p.r. borkar, j.1. this writ petition is challenging the order passed by the labour court, aurangabad, in complaint (ulp) no. 162 of 1987, decided on 17.02.1993, whereby it is declared that the present petitioners have engaged in unfair labour practice under the maharashtra recognition of trade unions and prevention of unfair labour practices act (for short 'mrtu & pulp act'), by terminating services of the complainant and they were directed to desist from indulging in any unfair labour practice and to reinstate the respondent no. 1 in service with continuity and back wages w.e.f. 15.06.1987, which order further came to be confirmed by the member, industrial court, aurangabad, by order dated 10.05.1995, passed in revision (ulp) no. 41 of 1993.2. admittedly, respondent no. 1 jaiprakash lohia was working as a peon in the school run by petitioner no. 1 of which petitioner no. 2 was headmaster. as stated by the labour court in para 2 of its judgment, respondent no. 1 claimed to have appointed as a peon in the school on 05.10.1984 for academic year 198485. from 09.10.1984 onwards he continuously worked till 15.06.1987. on 15.06.1987 he was orally terminated. there was no compliance of section 25f or 25g of the industrial disputes act (for short 'i.d. act). the petitioners have retained employees junior to respondent no. 1 in the service and therefore it is alleged that there was unfair labour practice committed under the provisions of the mrtu & pulp act. at the same time it is also alleged that the services of respondent no. 1 were not terminated in accordance with the provisions of the maharashtra employees' of private school (conditions of service) regulation act (for short 'm.e.p.s. act'). no notice was given. no domestic enquiry was held. it is also alleged that the petitioners violated section 4, 5 and rules 36 and 37 of the m.e.p.s. act and rules there under. therefore he has asked for declaration that the petitioners indulged in unfair labour practice and for reinstatement in service with continuity and back wages.3. the basic question arises whether the labour court and the industrial court have jurisdiction to entertain the complaint, when separate machinery is provided under the m.e.p.s. act. section 9 of the m.e.p.s. act is as follows:9. (1) notwithstanding anything contained in any law or contract for the time being in force any employee in a private school(a) who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank by the order passed by the management; or(b) who is superseded by the management while making an appointment to any post by promotion and who is aggrieved, shall have a right of appeal and may appeal against any such order or supersession to the tribunal constituted under section 8:provided that, no such appeal shall lie to the tribunal in any case where the matter has already been decided by a court of competent jurisdiction or is pending before such court, on the appointed date or where the order of dismissal, removal otherwise termination of service or reduction in rank was passed by the management at any time before the 1st july, 1976. (2) such appeal shall be made by the employee to the tribunal, within thirty days from the date of receipt by him of the order of dismissal, removal, otherwise, termination of service or reduction in rank, as the case may be:provided that where such order was made before the appointed date, such appeal may be made within sixty days from the said date. (3) notwithstanding anything contained in sub-section (2) the tribunal may entertain an appeal made to it after the expiry of the said period of thirty or sixty days as the case may be, if it is satisfied that the appellant has sufficient cause for not preferring the appeal within that period.(4) every appeal shall be accompanied by a fee or five hundred rupees which shall not be refunded and shall be credited to the consolidated fund of the state.4. the full bench of this court in st. ulai high school and anr. v. devendraprasad jagannath singh 2007 (1) mh.l.j.59 after examining the provisions of the m.e.p.s. act in detail, drew following conclusions, as conclusion nos. (i) and (vi):(i) in respect of those matters upon which an appeal lies to the tribunal under clauses (a) and (b) of sub-section (1) of section 9 of the m.e.p.s. act, 1977, the jurisdiction of the civil court is impliedly barred.x x x x x(vi) the legislature having provided for a remedy before the tribunal only in respect of the subjects spelt out in clauses (a) and (b) of sub-section (1) of section 9, in those cases the jurisdiction of the civil court is impliedly barred. the jurisdiction of the civil court is barred to the extent to which the legislature has spoken. in other areas which are not covered by clauses (a) and (b) of sub-section (1) of section 9, the remedy of an appeal before the tribunal is not available and hence, the jurisdiction of the civil court is not barred.it is true that the court declined to decide whether non teaching staff has remedy available under the i.d. act, stating that said question forms a subject matter of a separate reference to the full bench.5. the m.e.p.s. act is a special legislation enacted for the purpose of regulating recruitment and conditions of service of employees of certain private schools in the state, with a view to providing such employees security and stability of service to enable them to discharge their duties towards the pupils and their guardians in particular, and the institution and the society in general, effectively and efficiently. that is the wording of the preamble of the m.e.p.s act. in fact, as stated earlier it is case of present respondent no. 1 that the m.e.p.s. act and rules there under are applicable to him and there was breach of certain sections & rules. an 'employee' is defined under section 2(7) of the m.e.p.s. act as any member of the teaching and non teaching staff of a recognized school. so, respondent no. 1 who was peon has remedy available under section 9 of the m.e.p.s. act. the full bench has categorically dealt with in respect of those matter on which appeal lies to the tribunal under clause (a) and (b) of sub-section (2) of section 9 of the m.e.p.s. act, 1977 and jurisdiction of civil court is held to be impliedly barred.6. another case cited is sindhu education society and anr. v. kacharu jairam khobragade and anr. 1994 mh.l.j. 524. in that case when the employee filed complaint under the mrtu & pulp act, school tribunal was not constituted, and therefore it is held that the complaint was maintainable before the labour court. however, it is observed that employee will be governed by the provisions of the meps act, which was in force on the date when the complaint was filed. so that was peculiar circumstance in which it is held that the labour court in absence of constitution of school tribunal could entertain complaint by an employee governed by the meps act.7. i may also refer to the ratio laid down by the single bench of this court in the case of registrar, university of mumbai v. lata bhor and anr. : 2005(1) mh.l.j.700.8. after giving careful thought, in my opinion, when there is special legislation covering employees of private school, remedy is to approach the school tribunal and not labour court. in the circumstances, the impugned order passed by the labour court, as confirmed by the industrial court, is without jurisdiction and therefore same is set aside. the petition is allowed to that extent. rule made absolute accordingly.