Karnataka High CourtSmt Teresa Joseph W/O C S Joseph vs M/S Rajashree Vidyamandir on 2 June, 2020Author:Ravi V HosmaniBench:Ravi V. Hosmani1\n\n          IN THE HIGH COURT OF KARNATAKA\n                 KALABURAGI BENCH\n\n       DATED THIS THE 2ND DAY OF JUNE, 2020\n                       BEFORE\n\n     THE HON'BLE MR.JUSTICE RAVI V. HOSMANI\n\n                R.S.A. No. 2314/2007\nBetween:\n\nSmt. Teresa Joseph,\nW/o C.S. Joseph,\nAged about 46 years, Occ: Nil,\nR/o. C/o Bhaskara Rao,\nH.No.1-107, Mottigere Building,\nUpper Lane, Station Road,\nGulbarga - 585 101.\n                                           ... Appellant\n\n(By Sri. Vinayak Apte, Advocate)\nAnd:\n\n1.     M/s Rajashree Vidyamandir,\n       Through its Chairman,\n       Rajashree Cements,\n       Adityanagar, Malkhed,\n       Sedam, Gulbarga - 585 222.\n\n2.     The Principal,\n       Rajashree Vidya Mandir,\n       Rajashree Cements,\n       Aditya nagar, Malkhed,\n       Sedam, Gulbarga - 585 222.\n                                        ... Respondents\n(By Sri. Pramod N. Kathavi, Advocate)\n                               2\n\n      This appeal is filed underSection 100of CPC\npraying to set aside the judgment and decree dated\n13.06.2007 passed in R.A.No.68/2006 of the file of Civil\nJudge (Sr.Dn.) Sedam, dismissing the appeal and\nconfirming the order dated 07.07.2006 passed in\nO.S.No.7/2004 on the file of the Civil Judge (Jr.Dn.)\nSedam.\n\n      This appeal having been heard and reserved on\n13.03.2020 for judgment and coming on for\npronouncement of judgment this day, Ravi V. Hosmani\nJ., delivered the following:-\n\n                      JUDGMENTThis appeal is filed underSection 100of CPC\n\nagainst the judgment and decree dated 13.06.2007\n\npassed in R.A. No.68/2006 on the file of Civil Judge\n\n(Sr.Dn.) Sedam, dismissing the appeal and confirming\n\nthe order dated 07.07.2006 passed in O.S. No.7/2004\n\non the file of the Civil Judge (Jr.Dn.) Sedam.2.    The    appellant       was   the   plaintiff   and\n\nrespondent Nos.1 and 2 were defendant Nos.1 and 2\n\nbefore the Trial Court.33.     For the sake of convenience, the parties are\n\nreferred henceforth according to their ranks before the\n\nTrial Court.4.     The case of the plaintiff in brief is as follows:The plaintiff was appointed as a teacher by the\n\ndefendants in the year 1990. She was working to the\n\nsatisfaction of the management. Her husband C.S.\n\nJoseph was an employee of Rajashree Cement Works,\n\nAdityanagar, Malkhed. He was always harassing and ill-treating her. Since, the school administration is with\n\nRajashree Cement Works, he was having capacity to\n\ninfluence the decision of the Management. He wanted to\n\nget rid of her either by divorce or otherwise. Thus he\n\nbegan to harass her through the school management. At\n\nhis instance, the staff and management began making\n\nfalse    and     baseless   allegations    against   her.   On\n\n27.11.1998, she was issued with the articles of charge.4The charges were trivial, vague and did not contain any\n\nmaterial       particulars.      She       filed    reply   denying     the\n\ncharges. However after conducting farce of an enquiry in\n\ncomplete violation of the principles of natural justice, an\n\norder    of        dismissal   from        service    was      passed   on\n\n21.06.1999. Against that order she preferred an appeal\n\nunder        the    provisions    of       theEducation    Act.    The\n\nmanagement took a defence therein that the Appeal was\n\nnot maintainable. On 07.11.2003, the appeal came to\n\nbe dismissed as not maintainable. Thereafter, the\n\nplaintiff filed O.S. No.7/2004 seeking for the relief of\n\ndeclaration that the order of dismissal dated 21.06.1999\n\npassed by the respondent/defendant as illegal and void\n\nab-initio.5.         In response to the notice, the defendant No.1\n\nManagement chose to adopt the written statement filed\n\nby the defendant No.2. The defendant No.2, filed its\n\nwritten statement denying all the plaint averments. It5was contended that the plaintiff failed to carry out her\n\nwork to their satisfaction. She was irregular to school,\n\nfailed to carry out the work entrusted and there were\n\ncomplaints of misbehavior against her. Hence she was\n\nissued with articles of charge. She was afforded\n\nsufficient time and opportunity and after holding an\n\ninquiry, order dated 21.06.1999, dismissing her from\n\nservice was passed. It was also specifically contended\n\nthat as the suit is filed seeking for declaration in respect\n\nof the order dated 21.06.1999, the suit was barred by\n\nlimitation. It was also contended that a contract of\n\npersonal service is not enforceable, hence the suit is not\n\nmaintainable. The defendant also contended that the\n\nrelief sought by the plaintiff is only for declaration. And\n\nsince the plaintiff has not asked any appropriate reliefs,\n\nthe suit is not maintainable etc.6.    On the basis of the pleadings of the parties,\n\nthe Trial Court framed the following issues:61) Whether, the plaintiff proves that, the dismissal\n        order dated 21.06.1999 passed by the\n        respondent defendant as illegal and alright ab-initio?2) Whether, the plaintiff is entitled for the relief\n        sought?3) Whether, the defendant proves that, the suit is\n        not maintainable in law or on facts?4) Whether, the plaintiff proves that, the Hon'ble\n        Court has got jurisdiction to try the suit?5) What order or decree?Issue Nos.3 and 4 were treated as preliminary\n\nissues. The Trial Court answered issue No.3 in the\n\naffirmative and issue No.4 in the negative and dismissed\n\nthe suit as being barred by limitation and also on the\n\nground of lack of jurisdiction.7.    Being aggrieved by the said judgment and\n\ndecree, the plaintiff filed R.A.No.68/2006 before the\n\nCivil Judge (Sr.Dn.) Sedam. After hearing and on going\n\nthrough the materials on record, the First Appellate\n\nCourt framed the following points for its consideration:71. Whether the Trial Court has erred in holding\n      that, that suit is barred by limitation?2. Whether the Trial Court is erred in holding\n      that the civil court has no jurisdiction to try\n      the suit?3. Whether the order passed by the Trial Court\n      requires interference?4. What order?8.     On the basis of the pleadings of the parties,\n\nthe First Appellate Court answered the above points in\n\nthe negative and dismissed the appeal by confirming the\n\norder passed by the Trial Court.9.     Being aggrieved by the judgment and decree\n\npassed by the First Appellate Court, plaintiff has\n\npreferred this second appeal. The appeal was admitted\n\non 08.08.2008 to consider the following substantial\n\nquestion of law:"Whether in the facts and circumstances of the\n    case,   the    courts    below   were   justified   in\n    dismissing the suit on the ground, the suit is\n    barred by limitation?"810. The matter was earlier heard and reserved for\n\njudgment on 13.03.2020. Thereafter, this Court felt that\n\nyet another substantial question of law arises for\n\nconsideration. Therefore, the matter was posted for\n\nhearing on the same on 22.5.2020. On that day, the\n\nlearned counsel for the appellant could not able to\n\nconnect through Video Conference, the matter was\n\nadjourned to 28.5.2020. On the said day, the following\n\nadditional substantial question of law was framed:"Whether the Trial Court and the First\n     Appellate Court were justified in dismissing\n     the suit on the ground that the personal\n     services couldn't be enforced in a civil court\n     even   though   the    suit      is   filed   only   for\n     declaration that the order of dismissal from\n     service is null and void?"11.    Thereafter     an       opportunity     to    address\n\narguments on the additional substantial question of law\n\nwas provided. Both the learned counsel made their9submissions and concluded their arguments on the\n\nadditional substantial question of law.12.     The   learned   counsel   for   the   appellant\n\nsubmitted that the Trial Court decided the suit on two\n\npreliminary issues: i.e., Issue No.3 and Issue No.4. He\n\nsubmitted that the issue of limitation being a mixed\n\nquestion of law and fact, could not have been treated as\n\na preliminary issue without recording of evidence. It was\n\nalso submitted that, immediately after the order of\n\ndismissal was passed, the plaintiff had approached the\n\nAppellate Tribunal under theEducation Act, within the\n\nperiod of limitation. In the said proceedings, the\n\ndefendants    filed   objections   contending      that   the\n\nAppellate Tribunal did not have jurisdiction as the\n\nrespondent school was affiliated to the Central Board of\n\nSecondary Education, New Delhi, which was not within\n\nthe purview of theKarnataka Education Act, 1983.\n\nUpholding the said objection, the Appeal came to be10dismissed on 7.11.2003. Immediately thereafter the\n\nplaintiff filed O.S. No.7/2004. As the plaintiff was\n\npursuing her cause bonafide before a wrong forum, the\n\nsuit is within the period of limitation, in view ofSection\n\n14of the Limitation Act( hereinafter referred to as "Act"\n\nfor short). However, the Trial Court and the First\n\nAppellate Court have missed out on this important\n\naspect merely on the ground that no liberty was granted\n\nto the plaintiff to file the civil suit.13.Insofar as additional substantial question of\n\nlaw, it was submitted that both the courts committed a\n\ngrave error in assuming that the plaintiff's suit was for\n\nenforcing conditions of service, even when it was for a\n\nmere declaration that the order of dismissal from service\n\nwas    illegal,   null   and   void,   and   such   suit   was\n\nmaintainable as per the law laid down in the case ofK.P. Puttaram Vs. Vijaya Bank Ltd. (ILR1991 Kar.\n\n3614). Inthe said decision, this Court has held that11though the civil court cannot go into the adequacy of\n\nevidence in disciplinary proceedings, it has jurisdiction\n\nto go into the question of regularity of proceedings,\n\nviolation of principles of natural justice, authority of the\n\ndisciplinary    authority     and     proportionality     of\n\npunishment etc. It was submitted that in view ofthe\n\nsaid decision, the plaintiff's suit was maintainable and\n\nthe civil court had jurisdiction.The learned counsel also\n\nreferred to the decision in the case ofDr.K.T. Shivaiah\n\nVs. G. Puttaswamy Gowda and Anr. (ILR2003 Kar.\n\n2199).14. The learned counsel for the appellant-plaintiff\n\nfurther submitted that the issue of maintainability/\n\njurisdiction was decided on the assumption that the\n\nplaintiff was seeking to enforce the service conditions.\n\nAs the very nature of the relief sought for has been\n\nperversely understood, the decision of both the courts12are perverse and hence the same calls for interference in\n\nthis appeal.15.    On the other hand, the learned counsel for\n\nthe respondent submitted that though the issue of\n\nlimitation is a mixed question of law and fact, in this\n\ncase, the plaintiff pursued the appeal under theEducation Actin all earnest, despite clear objections\n\nabout   maintainability       having   been   raised   by   the\n\nrespondent in the objections. It was further contended\n\nthat there was no prayer made before the Appellate\n\nTribunal, seeking liberty to approach proper forum, and\n\nnone was granted, when it came to be dismissed on the\n\nground of jurisdiction. Moreover, there are no specific\n\npleadings      either   in   the   plaint   and   no   separate\n\napplication or affidavit is filed for explaining the\n\nlimitation. Under these circumstances, the question of\n\nlimitation was only a question of law and the dismissal\n\nof the suit on this ground was fully justified. It was also13submitted that the finding being concurrent, could not\n\nbe disturbed in second appeal.16.   It was also contended that except seeking\n\nthe relief of a bare declaration, no other consequential\n\nrelief was sought. It was submitted that granting of\n\nsuch declaration would amounts to continuing the\n\nplaintiff in service, which relief is barred underSection\n\n14of the Specific Relief Act. Hence, the suit was not\n\nmaintainable and the Civil Court lacked jurisdiction to\n\nentertain it. In support of his submissions, the counsel\n\nfor the respondent relied upon the decision of the\n\nHon'ble Supreme Court in the case ofPearlite Liners\n\nPvt. Ltd. Vs. Manorama Sirsi[2004 (3) SCC 172].17.   Heard the respective counsel on both side\n\nand perused the records. The undisputed facts of the\n\ncase are that the plaintiff was appointed in 1990, as a\n\nteacher in a school run by the defendant No.1 -\n\nmanagement. Later she was issued with articles of14charge alleging various misconducts, which she denied\n\nby filing reply. After holding departmental enquiry, and\n\nissuing show cause notice, the plaintiff was dismissed\n\nfrom   service,   vide   an    order    dated    21.06.1999.\n\nChallenging the said order, the plaintiff filed an appeal\n\nunder theEducation Act. The proceeding was opposed\n\nby the defendants on the ground that the               Appellate\n\nTribunal lacked jurisdiction as the school was affiliated\n\nto the Central Board of Secondary Education, New\n\nDelhi. Upholding the same, the appeal came to be\n\ndismissed on 07.11.2003. Thereafter O.S. No.7/2004\n\nwas filed on 22.01.2004. The relief claimed in the said\n\nsuit is as follows:"Wherefore it is most respectfully prayed that\n    the Hon'ble Court may be pleased to declare the\n    order of dismissal dated 21.06.1999 passed by\n    the respondent/defendant as illegal and void ab\n    initio, in the interests of justice and equity".1518.   After the defendants entered appearance and\n\nfiled written statements, five issues were framed and\n\nissues No.3 & 4 were heard as preliminary issues. The\n\nTrial Court answered both the issues against the\n\nplaintiff and dismissed the suit on the ground of\n\nlimitation as well as jurisdiction. On re-appreciation of\n\nthe case, the First Appellate Court also arrived at same\n\nconclusion and dismissed the appeal. Against the\n\nconcurrent findings, the plaintiff is in appeal.19.   The Trial Court while dealing with issue No.3\n\nhas taken note of the decision of the Hon'ble Supreme\n\nCourt in the case ofState of Punjab Vs. Amrik Singh[1998 (9) SCC 696], wherein it is held that the period of\n\nlimitation for seeking declaration that an order of\n\ntermination from service is invalid, as perArt.113, is 3\n\nyears. It has held that the suit filed on 21.01.2004\n\nchallenging the order of dismissal from service dated\n\n21.06.1999 was beyond the period of limitation and16accordingly answered the issue and dismissed the suit.\n\nThe contention with respect toSection 14of the Act was\n\nbrushed aside on the reasoning that no liberty was\n\ngranted to file a civil suit at the time of dismissal of the\n\nappeal filed under theEducation Act. Even before the\n\nFirst Appellate Court, the plaintiff sought to put-forth\n\nhis case underSection 14of the Act.He relied upon the\n\ndecision of this Court in the case ofCity Municipal\n\nCouncil vs. S.A. Lateef, (ILR2004 KAR 4322).\n\nHowever, the First Appellate Court held that the\n\ndecision did not apply to this case as the plaintiff\n\ntherein was granted liberty to file a civil suit, unlike in\n\nthis case. Even the argument that limitation is a mixed\n\nquestion of fact and law was also brushed aside on the\n\nreasoning that as no liberty to file a civil suit was\n\ngranted in this case, the issue was a question of law\n\nand as the suit was filed beyond the period of limitation\n\nprescribed, it was barred by limitation.1720.    However, the High Court of Kerala in the\n\ncase ofPatel Babu Lal Pranlal Brothers and others\n\nVs. Pameric Export International, Cochin and others(AIR 1999 Ker 355) has held that though the\n\nprovisions of Order VII Rule 6 are mandatory, it is not\n\nnecessary that the plaint should specifically claim the\n\ngrounds    of   exemption   underSection   14of   the\n\nLimitation Act, if such claim is apparent on the face of\n\nthe plaint. In this case the explanation is found in para- 10 of the plaint. The plaintiff has stated that after the\n\norder of dismissal from service, she filed an appeal\n\nunder theEducation Act, which came to be dismissed\n\non 7.11.2003 as not maintainable and the suit came to\n\nbe filed thereafter. From the above, it can be seen that\n\nthe necessary particulars of the earlier proceedings\n\npursued by the plaintiff has been stated by her. Mere\n\nnon-mentioning ofSection 14of the Act shall not\n\nprejudice her. Further from the wordings ofSection 14of the Act, it can be seen that it is the power of the18Court to condone the delay or not. Non-grant of liberty\n\nby the District Court at the time of dismissing the\n\nappeal cannot be a bar to claim exemption underSection 14of the Act. Hence, the Trial Court and the\n\nFirst Appellate Court have committed a grave error in\n\ndismissing the suit on the ground of limitation. The first\n\nsubstantial     question   of    law   framed   is   answered\n\naccordingly.21.      The next point for consideration is, whether\n\nan additional substantial question of law can be framed\n\nsubsequent to admission of the appeal? The Hon'ble\n\nSupreme Court has held that a High Court is duty\n\nbound to frame a substantial question of law before\n\ndeciding an appeal underSection 100of the Code of\n\nCivil Procedure [State of Punjab Vs. Amarjit Singh,\n\n2010 (15) SCC 535] and that it is only the framing of\n\nthe substantial question of law that grants jurisdiction\n\nto the High Court to decide the appeal underSection19100of the CPC [Surat Singh Vs. Siri Bhagwan, 2018\n\n(4) SCC 562].It has also been held that the decision of\n\nthe High Court underSection 100of the CPC should be\n\nconfined only to the substantial questions of law framed\n\n[Syeda Rahimunnisa Vs. Malan Bi2016 (10) SCC\n\n315]. But that does not whittle down the power of the\n\nHigh Court to frame substantial questions of law at any\n\ntime subsequent to the admission of the appeal.However, it can be by assigning special reasons and on\n\nbeing satisfied that the substantial question of law\n\narises   in     the   case   [U.R.   Virupakshappa      Vs.\n\nSarvamangala, 2009 (2) SCC 177].22.      In the case on hand, it is seen that the Trial\n\nCourt as well as the First Appellate Court have decided\n\nthe suit both on the ground of limitation as well as\n\njurisdiction. But at the time of admission of the appeal,\n\nthe substantial question of law is framed only on the\n\nissue of limitation. A decision on maintainability of the20suit is a jurisdictional question, which goes to the root\n\nof the case. And the question "whether a suit which is\n\napparently not maintainable should still be allowed to\n\nrun its course", has already been answered by the\n\nHon'ble Supreme Court inPearlite Linerscase supra.\n\nIn the said matter, after examining the prayers sought\n\nfor in the plaint, the Hon'ble Supreme Court found that\n\nnone of the reliefs sought for could be granted by the\n\ncivil court. Under such circumstances, it held that the\n\nTrial Court and the First Appellate Court were justified\n\nin dismissing the suit on the ground of jurisdiction. In\n\nthe above circumstances, the additional substantial\n\nquestion of law has been framed and taken up for\n\nconsideration.23.   Firstly, it is necessary to examine the nature\n\nof the relief sought for in the suit. The plaintiff has\n\nmerely sought a declaration that the order of dismissal\n\nfrom service passed by the management was illegal and21void ab initio. It is settled law that a contract of personal\n\nservice cannot be specifically enforced in a civil suit.\n\nHowever, there are three recognised exceptions to the\n\nsaid   proposition.In   the    case   of   theExecutive\n\nCommittee of Vaish College, Shamli and Ors. Vs.\n\nLakshmi Narayan and Ors., 1976 (2) SCC 58, the\n\nHon'ble Supreme Court referring to it's earlier decisions\n\ninS.R. Tewari v. District Board, Agra(AIR 1964 SC\n\n1680) and the Executive Committee of U.P. State\n\nWarehousing Corporation Ltd. v. Chandra Kiran\n\nTyagi[1969 (2) SCC 838], held as follows:"From the two decisions of this Court,referred to\n       above, the position in law is that no declaration\n       to enforce a contract of personal service will be\n       normally granted. But there are certain well-\n       recognised exceptions to this rule and they\n       are : To grant such a declaration in\n       appropriate cases regarding (1) A public\n       servant, who has been             dismissed from\n       service in contravention ofArticle 311.(2)\n       Reinstatement of a dismissed worker under22industrial law by Labour or Industrial\n     Tribunals. (3) A statutory body when it has\n     acted in breach of a mandatory obligation,\n     imposed by statute."(Emphasis supplied)24.     Admittedly,   the     defendants     are    private\n\nentities. The plaintiff was working as a teacher. As per\n\nthe decision in the case ofMiss A. Sundarambal Vs.\n\nGovt. of Goa, Daman & Diu(AIR 1988 SC 1700),\n\nthough a school may be an industry, teachers do not\n\nfall within the definition of 'workmen'. And there are\n\nabsolutely   no   pleadings      that   the   defendants     are\n\nstatutory authorities/bodies and are governed statutory\n\nrules/regulations. Hence, none of the three exceptions\n\navail to the plaintiff. Under such circumstances, when\n\nthe plaintiff is terminated from private service which is\n\npurely of contractual nature, the Civil Court is barred\n\nfrom granting a declaration regarding the order of\n\ntermination.In the case of SBI Vs. S.N. Goyal, [(2008)\n\n8 SCC 92], it is held as follows:23"Re: Question (i) -- Enforcement                  of    a\n     contract of personal service\n\n          "17. Where the relationship of master and\n     servant is purely contractual, it is well settled\n     that a contract of personal service is not\n     specifically enforceable, having regard to the bar\n     contained inSection 14of the Specific Relief Act,\n     1963.     Even    if   the   termination    of        the\n     contract of employment (by dismissal or\n     otherwise) is found to be illegal or in\n     breach, the remedy of the employee is only\n     to     seek      damages     and    not     specific\n     performance. Courts will neither declare\n     such termination to be a nullity nor declare\n     that the contract of employment subsists\n     nor     grant    the   consequential      relief       of\n     reinstatement. ...."(Emphasis supplied)25.     Admittedly, the only relief sought for by the\n\nplaintiff in this case is for a bare declaration that the\n\norder of dismissal from service is illegal and void ab\n\ninitio. There is no prayer for damages. Under the\n\ncircumstances, as the only relief sought for cannot be24granted by the Civil Court, the suit of the plaintiff is not\n\nmaintainable. The Civil Court lacks jurisdiction to\n\nentertain such a suit. Therefore the dismissal of the suit\n\nby the Trial Court and the appeal by the First Appellate\n\nCourt are fully justified and are based upon a proper\n\nappreciation of the facts of the case and the law\n\napplicable thereto. The substantial question of law\n\nframed is answered against the plaintiff.26.   In view of the above findings, there is no\n\nmerit in this appeal and the same is accordingly\n\ndismissed. No order as to costs.SD/-JUDGE\n\n\nBVK