1 5-wp-1926-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1926 OF 2011 M/s. Xavier Michael High School .. Petitioner. V/s. Smt. Gangubai C. Jangam .. Respondent. Mr. Sandesh D. Patil for the Petitioner. Mr.T.G. Vartak for the Respondent. CORAM : K.K.TATED, J. DATE : 6th APRIL, 2011. P.C.: 1 Heard learned counsel for the parties. 2 Rule. 3 By consent, matter is taken for final hearing at the stage of admission itself. 4 By this Petition under articles 226 and 227 of Constitution of India, the Petitioner is challenging the order dated 20th December, 2010 passed by Labour Court , Bombay below Exhibit 0–2 in reference 2 5-wp-1926-11.sxw (IDA) No.339 of 2000 rejecting Petitioner’s application for framing preliminary issue about the jurisdiction of Labour Court. 5 The learned counsel appearing on behalf of Petitioner submits that Respondent filed reference before the Labour Court, challenging her termination order dated 29th November, 1997. In the said reference, they filed their written statement and raise objection about the jurisdiction of Labour Court. Para 1 of the written statement reads as under:- “Para -1(A) At the outset before going into the merits of the reference it is submitted that the first party is a recognized school registered under Bombay Public Trust Act, 1950 and society registration act 1860 hence any dispute between the first party employer and its alleged workman has to go exclusively under Maharashtra employees of private schools (conditions of service) regulation act, 1977 which is special act and hence the present reference under Industrial Dispute Act 1947 is not maintainable. When there is special legislation covering employees of private schools, remedy is to approach the school tribunal and not labour court in the circumstances. Therefore the basic question arises as to whether the labour court has jurisdiction to entertain the present reference when separate machinery is provided under the M.E.P.S. act?. It is therefore submitted that the reference deserves to be rejected on this jurisdictional issue only. It is submitted further that the issue about jurisdiction of the hon’ble court for entertaining the dispute goes to the root of the reference and hence the said issue about jurisdiction of this honourable court and maintainability of reference be decided as a preliminary issue. The reference be therefore rejected as not maintainable on the issue of jurisdiction as submitted above.” 3 5-wp-1926-11.sxw They have also filed their application dated 12th November, 2010 for framing preliminary issue about the jurisdiction. The said application was rejected by Labour Court considering the judgment of this Court in the matter of Uday Janardhan Kulkarni V/s. Geo- Chem Laboratories Pvt. Ltd. reported in 2008 III CLR Page No.329 wherein it is observed that all issues including the issue whether the Petitioner is a workmen, must be decided together.. The learned counsel appearing on behalf of Petitioner submits that, that authority is not applicable in the present case, because in that case, the Petitioner was working in a Private Limited Company and the same was covered by the Industrial Dispute Act. He submits that Bombay High Court, Bench at Aurangabad in the matter of Adarsha Shikshan Sanstha, Beed and another v/s. Jaiprakash Ramvilas Lohia and another reported in 2009 III CLR page no.960 held that if dispute arises about termination, working in the Private School then the remedies are available only under MEPS Act. Paras 5 and 8 of the judgments thus reads as under:- “Para 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 4 5-wp-1926-11.sxw and efficiently. That is the wording of the preamble of 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 thereunder are applicable to him and there was breach of certain sections and 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 subsection (2) of Section 9 of the M.E.P.S.Act, 1977 and jurisdiction of Civil Court is held to be impliedly barred. Para – 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. On the basis of this submission, the learned counsel appearing on behalf of Petitioner submits that the impugned order dated 20th December, 2010 passed by Labour Court is liable to be set aside. He further submits that Labour Court to decide the preliminary issues “whether the Labour Court have jurisdiction to entertain and decide the present reference.” 5 On the other hand, the learned counsel appearing on behalf of Respondent vehemently opposes the present Writ Petition. He submits that Respondent was terminated on 29th November, 1997. 5 5-wp-1926-11.sxw Thereafter, they followed proceedings before the authority. In that proceeding, the Petitioner never appeared nor raised any objection about the jurisdiction. Thereafter, the matter was referred to the Labour Court. In Labour Court, Petitioner failed to file their written statement, therefore, the Labour Court passed order to proceed matter without written statement. The said order was challenged by the Petitioner before this Court by preferring Writ Petition No.8149 of 2008. The said Writ Petition was allowed by this Court. Thereafter, they filed written statement in the month of October, 2010 and raised objection about the Labour Court’s jurisdiction. Therefore, Labour Court rightly rejected the Petitioner’s application below Exhibit – 2 for framing preliminary issues, considering the judgment of this Court in the matter of Uday J.Kulkarni (supra). 6 It is correct that the Labour Court rejected Petitioner’s application for framing issues on the basis of reported judgment in the matter of Uday J.Kulkarni (supra) , but subsequent, judgment in the matter of Adarsha Shikshan Sanstha, Beed (supra) fully covers the issues in the present matter. Considering the view taken by this Court in the matter of Adarsha Shikshan Sanstha, Beed (supra), I am of the view that the Labour Court erred in rejecting the Petitioner’s application for framing preliminary issues. Therefore, the impugned 6 5-wp-1926-11.sxw order passed by the Labour Court dated 20th December, 2010 below Exhibit -2 in reference (IDA) 339 of 2000 is set aside. Application filed by Petitioner dated 12th November, 2010 for framing preliminary issues is allowed. The Labour Court is directed to decide the preliminary issues first i.e. “ issue no.2 – whether this court has jurisdiction to entertain and decide the reference”. 7 Considering the termination order of 29th November, 1997 and since then the Respondent is out of service, the Labour Court is directed to decide the preliminary issue as early as possible and in any case, within four months from the receipt of writ of this Court. 8 With the above directions, Writ Petition is dispose off. (K.K.TATED, J.)