Mridula Bhatnagar vs The Raj. Non-Government Educational Institutions Tribunal and Others

Veerender Singh Siradhana, J—Assailing the judgment and order dated 25th November, 2009, only to the limited extent the claims declined, the petitioner has instituted the present writ petition praying for the following relief(s):-

"(i) The judgment and order dated 25.11.2009 may be set aside only to the limited extent the Tribunal has not granted all the claims of the petitioner.

(ii) It may kindly be declared and directed that jurisdiction of civil Courts having been ousted under the Act the Tribunal has to decide all disputes raised under Section 21 of the Act.

(iii) It may kindly be declared and directed that the jurisdiction of the Tribunal to adjudicate a dispute and grant appropriate relief is not restricted or curtailed by the provisions of Limitation Act.

(iv) It may kindly be declared and directed that the Tribunal having upheld the petitioner''s claim regarding arrears of Dearness Allowance she is entitled to receive the entire amount along with interest as claimed in the petition under section 21.

(v) It may kindly be declared and directed that the respondent No. 1 and 2 are liable to pay interest on all claims.

(vi) It may kindly be declared and directed that taking into consideration the pleadings of the parties, documents available on record and provisions of the Act of 1989 the Tribunal committed a jurisdictional error in not granting the relief prayed for by the petitioner towards respondents'' liability to repay Rs. 2,31,299/- which was wrongfully extracted from the petitioner in the name of loan and subsequently appropriated in the garb of charity and the respondents No. 2 & 3 may be directed to refund the said amount along with interest.

(vii) The expression "as admissible under Payment of Gratuity Act, 1972 as amended from time to time" in Rule 82 may kindly be declared ultra-vires and unconstitutional and may kindly be struck down.

(viii) It may kindly be declared and directed that petitioner is entitled to receive gratuity at part with Teachers who have worked in Government institutions and that accordingly the petitioner is also entitled to receive gratuity as per the enhanced limit of Rs. 10 lacs.

(ix) Any other appropriate writ, order or direction which may be considered just and proper in the facts and circumstances of the case may also kindly be issued in favour of the petitioner."

Briefly, the skeletal material facts necessary for appreciation of the controversy raised in the writ application needs to be first noticed. The petitioner was appointed as ''Lecturer'' in English by Shri Sathya Sai P.G. College for Women (for short, ''respondent-institute''), on 20th August, 1977, subject to approval of the University of Rajasthan. She was further appointed on probation with effect from 14th November, 1978, and her pay was to be governed according to the Rajasthan Government Rules. She retired attaining the age of superannuation on 31st October, 2007. Since the petitioner was not paid salary of two months and her retirement benefits, besides arrears of pay fixation and dearness allowance were also unlawfully withheld, therefore, she instituted an application before the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, ''the Tribunal''), praying for release of salary of two months, gratuity, leave encashment, arrears of dearness allowance and arrears of pay fixation in UGC pay scale which were taken back in the name of loan and subsequently misappropriated in the garb of donation.

It is pleaded case of the petitioner that the State Government vide notification dated 12th September, 2008, enhanced the maximum limit of gratuity from Rs. 3.5 lacs to Rs. 10 lacs. On a consideration of the pleadings of the parties, evidence and materials available on record, the Tribunal restricted the claim of the petitioner to the dearness allowance upto a period of three years. Further the Tribunal has not decided the petitioner''s claim regarding refund of arrears of salary consequent to pay fixation in UGC pay scale and instead held that the petitioner should approach the Civil Court for that purpose. The petitioner has also questioned the impugned judgment for being silent on the issue of interest on retiral benefits.

At the outset, it may be mentioned that the challenge to the vires of the Rule 82 of the Rules of 1972, was no more pursued by the petitioner and in that view of the matter, the arguments were heard and concluded, restricted to only other prayer clauses but for prayer clause (vii).

Learned counsel Mr. Mahendra Singh, appearing on behalf of the petitioner, reiterating the pleaded facts and grounds, referring to paragraph 17 of the impugned order dated 25th November, 2009, emphasized that the principle of delay and laches which could be relied upon for declining the consequential relief of recovery of arrears for the entire past period, to a period of three years prior to the date of filing of the writ petition; has been wrongly applied in the instant case relying upon the opinion in the case of Union of India (UOI) and Others Vs. Tarsem Singh, (2008) 118 FLR 1079 : (2008) 11 SCALE 594 : (2008) 8 SCC 648 : (2008) 2 SCC(L&S) 765 : (2009) 1 SLJ 371 , for the reason that in absence of any provision, to the contrary, the Tribunal cannot import any such consideration while dealing with applications made under the provisions of Rajasthan Non-Government Educational Institutions Act, 1989 (for short, ''Act of 1989'').

According to the learned counsel for the petitioner, a bare glance of Sections 19, 21, 22, 23 and 25 of the Act of 1989, would reveal that under Section 19 though there is a limitation of 90 days whereas Section 21 provides for no limitation, and therefore, the orders of enhanced pay could not have been restricted to three years preceding the date of filing of the application. Thus, the Tribunal committed a gross error in declining the relief of enhanced pay to the petitioner for the entire period contrary to the object underlying the provisions of the Act of 1989. In order to fortify his submissions, the learned counsel has placed reliance on the opinion of the Hon''ble Supreme Court in the case of Bombay Gas Co. Ltd. Vs. Gopal Bhiva and Others, AIR 1964 SC 752 : (1963) 7 FLR 304 : (1963) 2 LLJ 608 : (1964) 3 SCR 709 , and Town Municipal, Council, Athani Vs. The Presiding Officer, Labour Courts, Hubli and Others etc., AIR 1969 SC 1335 : (1969) 18 FLR 373 : (1969) 2 LLJ 651 : (1969) 1 SCC 873 : (1970) 1 SCR 51 .

Learned counsel would further submit that the petitioner specifically pleaded before the Tribunal that the respondent-institute was in receipt of financial aid from the State Government and consequent to revision of pay scale, as per UGC norms, the petitioner was entitled to receive a sum of Rs. 5,36,595.00, by way of arrears for the period w.e.f. 1.1.1996 to 31.12.2001. The petitioner was paid the amount aforesaid after deductions towards Income Tax, P.F. Contribution and National Savings Certificate. The petitioner was forced to open new account in State Bank of India, for the purpose of receipt of the amount, which was credited to the petitioner''s newly opened account in State Bank of India on 17th April, 2002, but was got re-paid from the petitioner in favour of Shri Sathya Sai Trust (respondent No. 3). The procedure aforesaid was devised in order to frustrate and circumvent the decision taken by the Government to release grant in aid after disbursement of UGC arrears being first paid by the management. Similar practice was adopted and found played by the respondent-institute with most of its employees. Thus, it is apparent on the face of record that the institute played a collective fraud.

Learned counsel has referred to various documents which reflected the amount as receipt of loan and/or donation by the respondent-institute. The collective representations made by the employees, including the petitioner, for release of the amount due to them on account of arrears of pay were not responded. However, the Tribunal, without considering the materials available on record, did not decide the controversy as according to the Tribunal, the matter could be agitated by the petitioner by way of civil suit for the issues raised could be decided only after evidence was adduced as to whether the amount was in fact a loan or donation and for that only the Civil Court had the jurisdiction to decide such issues.

While raising the issue of interest, learned counsel for the petitioner asserted that in the singular facts and circumstances of the case, the Tribunal ought to have allowed interest @ 12% on delayed payment and there was no reason to depart from the practice wherein normally interest is allowed on the delayed payment for which the petitioner was not at fault. Reliance has placed on the opinion of the Hon''ble Supreme Court in the case of O.P. Gupta Vs. Union of India (UOI) and Others, AIR 1987 SC 2257 : (1987) 3 JT 532 : (1988) 1 LLJ 453 : (1987) 2 SCALE 457 : (1987) 4 SCC 328 : (1988) 1 SCR 27 : (1988) 1 SLJ 121 and Dr. Suraj Lal Gupta Vs. State of Rajasthan & Ors.: 1993 (3) WLC 246.

Per contra, Mr. Sanjay Kumar Sharma, learned counsel appearing on behalf of the respondent-institute, reiterating the stand before the Tribunal, while supporting the impugned order dated 25th November, 2009, asserted that Tribunal can exercise the jurisdiction specifically conferred in terms of text of Section 21 of the Act of 1989, therefore, the question whether the amount was loan or donation was not open for adjudication by the Tribunal. Hence, the Tribunal rightly declined to entertain the controversy since the same exclusively fell, if at all, within the exclusive jurisdiction of a civil court. Reliance has been placed on the opinion of a Coordinate Bench at Principal Seat, at Jodhpur, in the case of Managing Committee, Bhartiya Shiksha Prachar Samiti, Udaipur & Anr. Vs. Bhoopal Singh Babel & Ors. (Along with identical 12 writ petitions, mentioned in Schedule) : SBCWP No. 6613/2014, decided on 26th September, 2014.

I have heard the learned counsel for the parties and with their assistance perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar.

From a glance of the impugned order dated 25th November, 2009, it is evident that the Tribunal declined to exercise its jurisdiction with reference to the controversy whether the amount in dispute to the tune of Rs. 2,31,299/- was a loan or donation by the petitioner to the respondent-institute. There is sufficient material available on record from where the controversy as to the amount aforesaid was loan or donation? could be considered affording an opportunity of hearing to the parties in accordance with law.

At this juncture, it will be relevant to consider the text of Sections 22, 23 and 25 of the Act of 1989, which reads thus:

"22. Constitution of the Tribunal - (1) There shall be constituted by the State Government, by notification, one or more Tribunals for the purposes of this Act.

(2) The Tribunal shall have jurisdiction over the whole of the State or such area as may be specified in the notification.

(3) The State Government shall appoint a Judicial Officer of the rank of a District Judge to constitute the Tribunal.

Functions of the Tribunal - The Tribunal shall entertain, hear and decide appeals preferred under Section 19 and the disputes referred to in Section 21.

Powers of the Tribunal - (1) The Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 while trying a civil suit with respect to the following matters, namely:-

(a) enforcing the attendance of any person and examining him on oath;

(b) compelling the production of documents and material objects;

(c) issuing commission for the examination of witnesses; and

(d) such other matters as may be prescribed.

(2) Every proceeding before the Tribunal shall be deemed to be a judicial proceeding within the meaning of section 193 and 228 of the Indian Penal Code, 1860."

Further, it appears that such arguments were not raised by the petitioner before the Tribunal while insisting upon for exercise of jurisdiction in the backdrop of statutory provisions under Sections 22, 23 and 25 of the Act of 1989. So also, the issue raised claiming arrears of pay for the entire period from the date, the arrears became due, in the backdrop of the law declared by the Hon''ble Supreme Court, seems to have not been asserted before the Tribunal.

In view of the above, it is considered just and proper to remand the matter to the Tribunal for decision afresh to the extent the claim is sought to be set out in the writ petition, in the light of the submissions and law declared by the Hon''ble Supreme Court.

Since the parties are represented through their counsel, no fresh notice be issued. The parties are directed to appear before the Tribunal on 26th October, 2015. It is expected that the Tribunal would decide the controversy as expeditiously as possible. However, in no case, later than a period of four months from 26th October, 2015.

No costs.