IN THE HIGH COURT OF JHARKHAND AT RANCHI
A.C. (S.B.) No. 5 of 2009
Shailendra Kumar Jha ... ... Petitioner/Appellant
- VERSUS -
1. The Regional Director, D.A.V. Public School, Bariatu Campus, Ranchi.
2. The Principal, Parmar Vidyawati Surjeet Singh D.A.V. Public School,
Bye-Pass Road, Jhumri Tilaiya.
... Opposite Parties/Respondents
CORAM: THE HON'BLE MR. JUSTICE AMARESHWAR SAHAY
For the Appellant: Mr. Pandey Neeraj Rai, Advocate.
For the Respondents: Mr. Ananda Sen, Advocate.
C.A.V. On 24/02/2010 PRONOUNCED ON 09/03/2010
Amareshwar Sahay, J. Heard the parties.
2. The points to be decided in the present appeal are as
under:-
(I) Whether the impugned order passed by the Jharkhand
Education Tribunal rejecting the application filed by the present
appellant as time barred, is legal and valid?
(II) Whether the Jharkhand Education Tribunal had the
jurisdiction to entertain the application of the appellant for
redressal of his grievance?
3. In order to go into the above two questions, relevant
undisputed facts of the case are necessary to be noticed which are as
under:-
The appellant Shailendra Kumar Jha was employed as a
Clerk in Parmar Vidyawati Surjeet Singh D.A.V. Public School, Bye-Pass
Road, Jhumri Tilaiya. In the year 1993, a criminal case was lodged
against him for the alleged commission of the offences under Section
408, 468, 477A and 379 of the Indian Penal Code alleging therein that he
misappropriated the money received from the students as Fee.
During the pendency of the Criminal case, he was not
allowed to work. He was however acquitted by the Trial Court giving him
the benefits of doubt by Judgment dated 21.08.2006.
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Thereafter, the appellant Shailendra Kumar Jha,
represented the Management of the School to allow him to join his
service but when he found that no action was being taken then he sent a
Notice to the Management by registered post through his Lawyer on
05.11.2007
calling upon them to allow him to resume work in the school.
4. When the appellant did not receive any response to his
Notice, he filed an application before the Jharkhand Education Tribunal
on 19.03.2008 under Section 8 of the Jharkhand Education Tribunal Act,
2005 praying therein for direction to the Management to allow him to join
the School.
The respondents/ School appeared before the Tribunal
filed their Counter Affidavit. They also filed a separate petition
challenging the maintainability of the case filed by the employee on the
ground that the application filed by the employee was hopelessly barred
by limitation and accordingly, prayed that the said issue of limitation may
be decided firstly as a preliminary issue.
5. There is no dispute of the fact that the appellant did not
make any application before the Education Tribunal for condoning the
delay in filing the application.
The Education Tribunal, by impugned order, has held that
the application filed by the employee, was barred by limitation since it
was filed beyond the period of six months as prescribed under Section
10 of the Jharkhand Education Tribunal Act.
6. Mr. Ananda Sen, learned counsel appearing for the
respondents, has however raised a further question before this Court
that in view of Section 9 of the Jharkhand Education Tribunal Act the
appellant had no cause of action for filing a case against the
Management of the School, since no any order has been passed by the
Management of the School against the appellant. The jurisdiction of the
Tribunal would arise only when the concerned employee is aggrieved by
an order said to have been passed by the Management of the School.
Therefore, the learned Tribunal had no jurisdiction to entertain the
application filed by the appellant and had no jurisdiction to adjudicate
upon the grievance of the appellant.
7. Mr. Pandey Neeraj Rai, learned counsel appearing for the
appellant, submitted that Section 9 of the Jharkhand Education Tribunal
Act has to be read conjointly with Section 8 of the said Act, which
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provides jurisdiction, power and authority to the Jharkhand Education
Tribunal.
According to the learned counsel for the appellant, all the
matters concerning the service condition of the employees of the
Educational Institutions and the grievances of the employees against the
Management of the Education Tribunal can be entertained and decided
by the Tribunal. It is not that unless and until any order is passed by the
Management of the School against an employee, he cannot approach
the Tribunal for redressal of his grievance and, therefore, the Tribunal
had ample powers to entertain and adjudicate the grievance of the
appellant because his grievance was concerning his service condition
and the grievance was against the action/ inaction of the School
Management.
8. So far on the point of Limitation, Mr. Neeraj Rai submitted
that the Education Tribunal has seriously erred by completely misreading
the provisions of Section 10(2) of the Jharkhand Education Tribunal Act,
2005 and has wrongly counted the period of six months from the date the
Judgment was passed by the Criminal Court.
9. By citing a decision of the Supreme Court in the case of
D.P. Maheshwari Vs. Delhi Administration and Others reported in
1983(4) SCC 293 / AIR 1984 (SC) 153, he submitted that the Education
Tribunal ought not to have decided the Limitation matter as the
preliminary issue, since the question of limitation was a mixed question
of law and fact and, therefore, the Tribunal should have resisted from
deciding the question of Limitation as preliminary issue separately so as
to avoid the protracted round of litigation.
10. On the other hand, Mr. Ananda Sen, learned counsel
appearing for the respondents submitted that Section 10(2) of the
Jharkhand Education Tribunal Act clearly speaks that the Tribunal shall
not admit any application unless such an application is filed within the
period of six months from the date of order by an Educational Institution.
He further submitted that though the Tribunal has the power to condone
delay in appropriate cases which are filed beyond the period of limitation
but such power has to be exercised by the Tribunal only when it is
satisfied that there is sufficient cause for not making the application
within the period of limitation and for that the aggrieved person who
approaches the Tribunal after the period of limitation has to necessarily
make an application praying for condonation of delay and he has to
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satisfactorily explain the delay but in the present case, admittedly the
appellant did not file any such application before the Education Tribunal
for condonation of delay in filing the application, therefore, in such a
situation, the Tribunal has rightly dismissed the application of the
appellant holding it to be barred by limitation and there is no error in it.
The impugned Order does not suffer from any infirmity. Accordingly, this
appeal filed by the appellant is liable to be dismissed.
11. In order to appreciate the rival contention of the parties and
also to decide the questions raised by them before me, it is necessary to
notice the relevant provisions of the Jharkhand Education Tribunal Act,
2005.
12. The object of enacting Jharkhand Education Tribunal Act,
2005 has been to make suitable provisions for constitution of a statutory
forum, to be known as Appellate Tribunal for looking into the grievances
of teachers of aided, affiliated and Private Educational Institutions and
that of the parents/ guardians of the students studying therein and to
comply with the order of the Hon’ble Supreme Court in the matter of TMA
Pai Vs. Karnataka State and the ruling dated the 5th August, 2003,
passed by the Division Bench of the Hon’ble Jharkhand High Court in the
matter of W.P.(PIL) NO. 2744 of 2003.
13. Chapter-III of the Jharkhand Education Tribunal Act, 2005
speaks about the jurisdiction, power and authority of Tribunal and
Sections 8, 9 and 10, which are relevant for the purpose, are quoted
hereinbelow:-
Section 8. Jurisdiction, power and authority of the Jharkhand
Education Tribunal:-
(1) Save as otherwise expressly provided in this Act, the
Jharkhand Education Tribunal shall exercise on and from the
appointed day, all the jurisdiction, power and authority
exercisable immediately before that day by all Courts (Except
the Jharkhand High Court and Supreme Court of India)
regarding:-
(a) Matters concerning recruitment to any post in connection
with the affairs of the educational institution;
(b) All matters concerning the service conditions of employees
of the educational institutions;
(c) Grievances of the employees against the management of
the educational institutions;
(d) Grievances of the guardians and parents of students
against the management of the educational institutions
regarding teaching standards, fee structure, infrastructural
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facilities, development works and allied matters related
thereto;
(e) Such matters relating to educational institutions as may be
referred to the Tribunal by the State Government by
notification from time to time.
Section 9. Application to Tribunal. –
(1) Subject to other provisions of this Act, a person aggrieved
by an order pertaining to any matter within the jurisdiction of a
Tribunal may make an application to the Tribunal for the
redressal of his grievances.
Explanation:- For the purpose of this sub-section “Order”
means an order made:-
(A) by the Management of an aided, affiliated and private
educational institution;
(B) by an officer, committee or other body or agency of such
educational institution referred to in Clause (A).
(2) Every application under sub-section (1) shall be in such
form and be accompanied by such documents or other
evidence and by such fee, if any, in respect of the filing of such
an application and by such other fees for the service or
execution of processes as may be prescribed by the State
Government;
(3) On receipt of an application under sub-section (1), the
Tribunal shall, if satisfied “that the application is fit for
adjudication or trial by it, admit such an application. Where the
Tribunal is not satisfied, it may summarily reject the application
after recording its reasons.
(4) Where an application has been admitted by the Tribunal
under sub-section (3), every proceeding under the relevant
service rules as to redressal of grievances in relation to the
subject matter of such application pending immediately before
such admission shall abate and save as otherwise directed by
the Tribunal, no appeal or representation in relation to such
matter shall thereafter be entertained under such rules.
Section 10. Limitation:-
(1) A Tribunal shall not admit an application, unless-
(a) the grievance in respect of which an application is made
had arisen by reason of any order made at any time during
the period of three years immediately preceding the date of
the establishment of this Tribunal; and
(b) no proceeding of the redressal of such grievance had
commenced before the said date before any High Court.
(2) Besides cases admissible for adjudi9cation under sub-
section (1), an application may be admitted within a period of
six months from the date of the issue of the order by an
educational institution. This limitation may be condoned by the
Tribunal if it is satisfied that there exists sufficient cause for not
making the application within such period.
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14. On a plain reading of Sections 8 and 9 quoted
hereinabove, I appears that the Tribunal has got all the jurisdiction,
power and authority to decide all the matters concerning the service
conditions of the employees of the educational institutions and the
grievances of the employees against the management of educational
institutions.
15. Mr. Neeraj Rai, learned counsel appearing for the appellant
is right in submitting that the jurisdiction of the Education Tribunal is not
limited to examine only the orders passed by an Educational Institution
against its employee. The Tribunal can look and adjudicate into the
grievances of an employees of the educational institution regarding his
conditions of service and any of his grievance against the action of the
management.
Accordingly, I hold that the Education Tribunal has all the
jurisdiction, power and authority to decide all the matters concerning the
service condition of an employee as well as the grievances of the
employee against any action or inaction on the part of the Management
of an educational institution.
It can’t be said that the Education Tribunal can only
examine the legality and validity of any specific order passed by the
Management of the School. The Tribunal can examined not only the
legality or validity of any order passed by the Management of the School
but also examine the legality or validity of any action or inaction of the
Management of the School concerning the service condition of an
employee or any other grievance relating to his service.
16. Now coming to the point of Limitation.
From perusal of Section 8 and Section 10 of the Jharkhand
Education Tribunal Act, 2005, quoted hereinabove, it appears that the
Legislature has clearly envisaged that the Tribunal shall not admit an
application unless the application is filed within a period of six months
from the date of issue of the Order by the Educational institutions.
Section 8 gives jurisdiction to the Tribunal to adjudicate
regarding the grievance of the employee regarding action of the
Management and about the matters concerning the service condition,
then Section 10 of the Jharkhand Education Tribunal Act, 2005 has to be
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read keeping in mind the jurisdiction and power given to the Tribunal by
Section 8 of the Act.
17. It is well settled that the provisions of the Act has to be
interpreted so as to make it effective and workable. In the words of
Supreme Court, a bare mechanical interpretation of the words and an
application of the legislative intent, devoid of concept or purpose, will
reduce path of remedial and beneficial legislation to futility. Reference in
this case may be made to the case of Organo Chemical Industries Vs.
Union of India reported in AIR 1979 SC 1803.
18. In the present case, as per Section 10(2) of the Jharkhand
Education Tribunal Act, 2005, a person aggrieved by an order passed by
the Educational Institution can approach the Tribunal within a period of
six months from the date of the order. The period of Limitation has to be
counted from the date the cause of action arises.
In a case where a person is aggrieved by an order, then
the cause of action would arise from the date of passing of that order and
accordingly, the Limitation would start running from the date of the order
and in other cases, the cause of action would depend upon the facts of
each case.
19. In the present case, admittedly during the pendency of the
criminal case, the appellant was not allowed to work in the School and
he applied before the Management allowing him to rejoin after he was
acquitted from the criminal charges by a Criminal Court on 1109.2006,
the date on which the Trial Court delivered the Judgment of acquittal
giving the appellant benefits of doubt.
Therefore, it is clear that the cause of action for filing
application by the appellant before the Tribunal started from 11.09.2006
whereas, the appellant filed the application for redressal of his grievance
before the Tribunal on 19.03.2008 which was apparently barred by
limitation as envisaged under Section 10(2) of the Jharkhand Education
Tribunal Act, 2005. However, this delay in filing the application beyond
the period of limitation prescribed under the Act could have been
condoned by the Education Tribunal only if it was satisfied that the delay
has sufficiently been explained.
The Tribunal had the power to condone the delay only if
there was sufficient cause explaining the delay and this sufficient cause
has to be shown by the person who approached the Tribunal beyond the
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period of limitation prescribed under the law but admittedly, in the
present case, no application was made by the appellant before the
Education Tribunal praying for condonation of delay by giving sufficient
explanation for the delay. Therefore, there was nothing before the
Tribunal from which he could have satisfied that the delay in filing of the
application was sufficiently explained. Since no such application was
made by the applicant, the Tribunal had no option but to refuse
admission of the application as per Sub Section (1) of Section 10 of the
Jharkhand Education Tribunal Act, 2005 holding it to be time barred.
Therefore, in my view, the Education Tribunal has rightly
held that the application filed by the appellant before the Tribunal was
barred by limitation.
In view of the fact that the legislature has prescribed a
period of limitation for approaching the Tribunal and, therefore, unless
the Tribunal decides the question of Limitation first, he would not have
power to enter into the merits of the case. Therefore, it was encumbent
upon the Tribunal to decide the question of Limitation first, when it was
raised before it.
20. Since the question of limitation goes to the root of
jurisdiction of the Tribunal and, therefore, the question of Limitation has
to be decided first and therefore, the Tribunal has not committed error in
taking it as a preliminary issue. The Tribunal has rightly held that the
Judgment of the Supreme Court in the case of D.P. Maheshwari
(Supra) is not applicable in the facts and circumstances of the present
case for the reasons stated in the impugned order.
21. For the reasons stated above, I find no merit in this appeal.
Accordingly, it is dismissed. However, in the facts and circumstances,
there shall be no order as to costs.
(Amareshwar Sahay, J)
RC/