1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER 5.2.2008. 1.S.B. CIVIL REVISION PETITION NO.43/2006 Managing Committee, Saini Prathamik Vidyalaya Vs.Narain Lal 2.S.B. CIVIL REVISION PETITION NO.24/2006 Managing Committee,Saini Prathmik Vidyalaya Vs. Dhanna Lal Saini. 3.S.B. CIVIL REVISION PETITION NO.46/2006 Managing Committee, Shri Saini Prathmik Vidyalaya Vs. Daulatram Saini & Ors. 4.S.B. CIVIL REVISION PETITION NO.45/2006 Managing Committee, Saini Prathmik Vidyalaya Vs. Puranmal Gupta. 5.S.B. CIVIL REVISION PETITION NO.52/2006 Managing Committee, Saini Prathmik Vidyalaya Vs. Kishanlal Saini. 6.S.B. CIVIL REVISION PETITION NO.38/2006 Managing Committee, Saini Prathmik Vidyalaya Vs. Kailash Chand Saini. 7.S.B. CIVIL REVISION PETITION NO.44/2006 Managing Committee, Saini Shiksa Samiti Vs. Dristiketu Singh 8.S.B. CIVIL REVISION PETITION NO.50/2006 Managing Committee, Saini Prathamik Vidyalaya Vs. Krishna Kauri. 9.S.B. CIVIL REVISION PETITION NO.49/2006 Managing Committee, Saini Shikhsa Samiti Vs. Gajanand Mittal 10.S.B. CIVIL REVISION PETITION NO.54/2006 Manaaging Committee, Saini Shikhsa Samiti Vs. Ashok M. Dudani. 11.S.B. CIVIL REVISION PETITION NO.51/2006 Managing Committee, Saini Shikhsa Samiti Vs. Harish Chand Saini. HON'BLE MR. JUSTICE DALIP SINGH Shri C.L. Saini, } Shri Sanjay Gangwar,} Smt. Priti Mehta, } for the petitioner. Shri D.P. Sharma } Shri M.S. Gurjar } for the non-petitioner. 2 BY THE COURT: These cases have come up for orders on the application which have been filed by the respondent with the prayer that the learned Tribunal may be directed to make the calculation of the amount payable as gratuity to the respondent within six weeks. The back ground in which these revision petitions and the similar cases have been filed is that the respondents were employed with the petitioner institution and filed their appeals before the Rajasthan Non Government Educational Institutions Tribunal, Jaipur in respect of their service conditions. The learned Tribunal vide its judgment dated 22.11.2000 ( in S.B. Civil Revision No.43/2006 the Managing Committee Saini Prathamik Vidyalaya Vs. Narain Lal Saini) allowed the appeal in the following terms : "ूाथȸ का आवेदन पऽ ः वीकार Ǒकया जाता है, ǒवप¢ी अूाथȸ संः था को िनदȶश Ǒदया जाता है Ǒक :- (1) वह ूाथȸ को यǑद वह चयिनत वेतनमान ूाÜ त क रने के िलये उपयुÈ त पाऽ पाया जावे, राÏ य सरकार के आदेश पǐरपऽ Ǒदनांक 25.01.92 के अनुसरण मɅ चयिनत वेतनमान मɅ वेतन ǔः थरȣकरण कर उसका नकद भुगतान करे । (2) ूाथȸ कȧ अिधवाǒष[कȧ आयु ूाÜ त करने कȧ Ǒदनांक को देय वेतन के आधार पर अवदाय संदाय अिधिनयम 1972 के िनयमɉ के अनुसार संगणना कर ूाथȸ को अपदान रािश अदा करɅ । (3) यǑद ूाथȸ के उपाǔज[त अवकाश खाते मɅ कोई उपाǔज[त अवकाश बकाया हो तो राÏ य कम[चाǐरयɉ को Ǒदये जाने वाले नकद भुगतान के अनुǾप ऐसे भुगतान का नकद भुगतान ूाथȸ ूाÜ त करने का अिधकारȣ है । (4) ूाथȸ को देय लाभ पर देय होने कȧ Ǒदनांक से अदायगी तक ूाथȸ अूाथȸ संः था से 12 ूितशत वाǒष[क Þ याज ूाÜ त करने का अिधकारȣ है ।" Under the Rajashan Non Government Educational Institutions Act, 1989 (hereinafter referred to as the Act of 1989)which came into force on 1.1.1993 Section 27A has been inserted by way of an amendment, introduced in 2003 providing for a forum for execution of the orders passed by the learned Tribunal. Section 27A reads as follows : 3 “[27A-Execution of orders of Tribunal.- The orders of the tribunal deciding appeals preferred under Section 19 and disputes referred to in section 21 shall be deemed to be the decree of the lowest civil court having territorial jurisdiction over the local area in which the respondent/s against whom the order has been made, ordinarily resides or carries on business or personally works for gain and shall be executed as such by such civil court.]” For the execution of the order dated 22.11.2000 passed by the learned Tribunal the respondent herein filed an application under Section 27A before the civil court. On notice being issued to the Petitioner Institution, the Institution passed the order Annexure-3 in civil revision No.43/2006 dated 5.10.2005 by calculating the amount which the Institution thought it was liable to pay under the order passed by the learned Tribunal, which was sought to be executed. The petitioner filed the objection to the effect that the Act of 1989 having come into force w.e.f. 1.1.1993 and the Rules of 1993 on 1.4.1993 the Institution was liable to pay the amount in terms of the directions of the learned Tribunal constituted under the said Act of 1989 only w.e.f. 1.4.1993 as Rule 82 came in force on 1.4.1993. Whereas the appellant-employees who filed appeals before the learned Tribunal claimed the amount from the date prior to 1.4.1993 and in the case of Narain Lal Saini in S.B. Civil Revision Petition No.43/2006 w.e.f. 1.7.1988. The aforesaid objection raised by the petitioner institution employer was rejected by the learned civil court vide its order dated 19.9.2005. The petitioner thereafter moved an application for review of the order dated 19.9.2005 by which the objections in 12 cases had been decided against the 4 petitioner institution. The aforesaid review application came to be dismissed by the learned civil court vide order dated 19.11.2005. It may be mentioned here that in the meanwhile, the petitioner institution passed the order dated 5.10.2005 determining the amount in terms of the judgment of learned Tribunal and made the payment to the employees based upon which the amount of gratuity was sanctioned and paid w.e.f. 1.4.1993 which is the date on which the rules framed under the Act of 1989 were brought into force. As the provisions of payment of gratuity was made under rule 82 of the Rules of 1993 framed under the Act of 1989. As far as the direction given by the learned Tribunal for grant of Selection Scale and leave encashment in terms of the order of the Government dated 25.1.1992 are concerned in para 2 and 3 of the order dated 5.10.2005 issued by the petitioner institution, the claim of the respondent was rejected as it was found that there was no earned leave account of the respondent and so far as the selection scale is concerned the case of the employees having been considered were not found suitable for the same. Learned Tribunal vide its order dated 12.12.2005 taking into consideration the order passed by the petitioner institution in respect of the respondent employee disagreed with the contention of the petitioner institution regarding the date from which the gratuity was liable to be paid and the decision contained in para 2 and 3 of the order dated 5.10.2005 by which the petitioner institution held that the respondent was not entitled to the grant of selection scale and also the amount towards leave encashment. The said order is Annexure-6 on record in S.B. Civil Revision Petition No.43/2006. The petitioner thereafter preferred an appeal 5 before the learned District Judge which came up for consideration before the Addl. District Judge NO.2, Alwar who vide order dated 20.5.2006 dismissed the same holding that the appeal under Order 43 of the CPC was not maintainable. Hence these revisions petitions. Since all these revisions petitions raise a common question regarding the scope and jurisdiction of the Executing Court under Section 27A and of the validity of order dated 5.10.2005 passed by the petitioner institution and the order passed in the execution proceedings on 12.12.2005 all the matters have been taken and heard together. The matter had earlier come before this court at the time of admission on 29.3.2006 when the petition was admitted and it was directed so far as the stay is concerned as follows : “The petitioner is directed to make the payment to the respondent in accordance with the order Annexure-3 dated 05.10.2005 within one week by means of Demand Draft. In the meanwhile, the operation of the order dated 12.12.2005 (Annexure-6) passed by the Civil Judge (Jr. Div.) No.1, Alwar shall remain stayed. The aforesaid order will not prevent the respondent from challenging the validity of the order Annexure-3 before the Tribunal, in case, he so desires.” It is however, not in dispute that the respondent did not prefer to challenge the order dated 5.10.2005 passed by the petitioner institution before the learned Tribunal, except only one of the respondent in S.B. Civil Revision Petition No.24/2006 Dhanna Lal Saini who challenged the order passed by the petitioner institution before the learned Tribunal. The aforesaid petition filed by Dhanna Lal bearing number S.B. Civil Revision No.24/2006 is pending for consideration before the learned Tribunal. 6 Thus the question which has been raised is whether the civil court in exercise of power under Section 27A had the jurisdiction to sit in judgment and adjudicate on the validity of the order passed by the petitioner institution dated 5.10.2005 in compliance with the order passed by the learned Tribunal dated 22.11.2000 in favour of the respondent. The order which has been filed as Annexure-3 dated 5.10.2005 in Civil Revision No.43/2006 reads as follows : "3. चयिनत वेतन मान :- पǐरपऽ आदेश Ǒदनांक 25/1/1992 के तहत संः था के ूबंधक कारणी ने आपकȧ सेवा के सà बÛ ध Ǒदनांक 2.10.05 को िनण[य पाǐरत Ǒकया है ǔजसके आधार पर आयु चयिनत वेतन मान का लाभ पाने के अिधकारȣ नहȣ है । इस ूकार इस मद मɅ भी आप कोई रािश पाने के अिधकारȣ नहȣं है ।" A perusal of the para 3 of the letter dated 5.1.2005 goes to show that the respondent was informed by the Employer that the Managing Committee had considered the case of the respondent and taken a decision dated 2.10.2005 in respect of relief for grant of selection scale in terms of the Government order dated 25.1.1992 and found that the respondent was not found suitable for the same. A direction issued by the learned Tribunal in its order dated 22.11.2000 is as follows : "ूाथȸ का आवेदन पऽ ः वीकार Ǒकया जाता है, ǒवप¢ी अूाथȸ संः था को िनदȶश Ǒदया जाता है Ǒक :- (1) वह ूाथȸ को यǑद वह चयिनत वेतनमान ूाÜ त क रने के िलये उपयुÈ त पाऽ पाया जावे, राÏ य सरकार के आदेश पǐरपऽ Ǒदनांक 25.01.92 के अनुसरण मɅ चयिनत वेतनमान मɅ वेतन ǔः थरȣकरण कर उसका नकद भुगतान करे । ........" A perusal of the above direction goes to show that the learned Tribunal in its order had directed that in case the respondent herein is found suitable for the grant of the benefit of the selection scale in terms of the order of the Government dated 25.1.1992 7 the same may be awarded and paid to the employee appellant. As has been quoted above as per the letter Annexure-3 to the petitioner institution conveyed to the respondent that after consideration of the case of the respondent by the Managing Committee in its meeting on 2.10.2005 the respondent was not found suitable for the award of the benefit of the selection scale in terms of the circular of the Government dated 25.1.1992. It may be that the decision of the Managing Committee of the petitioner institution taken on 2.10.2005, was not correct and the employee concerned was in fact entitled to the grant of selection scales but so far as the civil court is concerned while executing the orders passed by the learned Tribunal in exercise of the jurisdiction under Section 27A of the Act of 1989 it cannot adjudicate upon the decision taken by the Educational Institution which may or not correct. The remedy for the aggrieved person would, in the facts and circumstances lie by challenging the decision before the learned Tribunal. The decision taken by the civil court holding otherwise and not accepting the decision of the petitioner institution dated 2.10.2005 as conveyed vide Annexure-3 dated 5.10.2005 amounts to sitting in judgment validity of the decision of the petitioner institution which the civil court is not entitled to as such jurisdiction vests exclusively with the Tribunal under Section 19/21 of the Act of 1989. It is not as though the employee of the educational institution is without remedy. Therefore the jurisdiction which was exercised by the civil court while passing of the order dated 12.12.2005 was an exercise of jurisdiction not vested in it by law. Similarly the question regarding the non payment of the leave encashment which has been conveyed by para 2 also falls beyond the scope of the civil court under Section 27A. 8 So far as the decision taken by the petitioner institution making payment of gratuity is concerned the petitioner institution has taken a decision that in its opinion the rule 82 having been brought into force w.e.f. 1.4.1993 the petitioner institution was only liable to pay the amount w.e.f. the date when the provision came into force and not earlier. The respondent employee on the other hand contended before the learned civil court that the decision taken by the petitioner institution is not correct and that they were entitled to the grant of gratuity with effect from the date of joining the services. So far as the said dispute is concerned I am of the view that the aforesaid disputes could not have been adjudicated by the learned civil court as there was no clear cut direction given by the learned Tribunal as to from which the date the employees were held entitled for the grant of gratuity in its judgment dated 22.11.2000. That was a matter required to be dealt with by the Tribunal alone. Thus the civil court has proceeded to examine the question regarding entitlement for the grant and payment of gratuity to the employees w.e.f. the date prior to the coming into force of the rules which was not there in the order passed by the learned Tribunal. As has been stated above the civil court would require to adjudicate the matter only in terms of the direction contained in the order passed by the learned Tribunal and it is only the Tribunal exercising its jurisdiction under Section 21 of the Act of 1989 which could have adjudicated the question and passed by the order giving effective date from which the employee was entitled to the payment of gratuity and not the civil court. In the result I am inclined to accept these revision petitions and the same are allowed the impugned order dated 12.12.2005 is set aside. The respondent employees are at liberty to approach the learned Tribunal challenging the order passed by the 9 petitioner institution dated 5.10.2005 in case they are aggrieved. It is submitted by the learned counsel for the respondent that a direction may be given to the learned Tribunal so far as the case of the employee Dhanna Lal, in Civil Revision No.24/2006 is concerned for expeditious disposal of his application. The request is accepted. The learned Tribunal is directed to decide the application filed by Dhanna Lal pending before it within three months from the date of the filing of the certified copy of this order. (DALIP SINGH),J. Ramchandrkhatri,PS