KARNATAKA LINGAYAT EDUCATION SOCIETY, COLLEGE ROAD, BELGAUM v. SHRI CHITLOOR

of the defendant No1-Society. It is also contended by the defendants that the suit is not maintainable and that apart suit is barred by law of limitation. Hence, the defendants sought for dismissal of the suit.

5. The Trial Court, based on pleadings on record, has formulated issues for its consideration. - 5 - R.S.A.No.100563/2014

6. In order to establish their case, plaintiff was examined as PW1 and produced 03 documents, which were marked as Exhibits P1 to P3. On the other hand, defendants have examined one witness as DW1 and produced 03 documents, which were marked as Exhibit D1 to D3.

7. The Trial Court after considering the material on record by its judgment and decree dated 24.09.2011 decreed the suit in part holding that the plaintiff is entitled for sum of Rs.6,79,495/- from the defendants with interest at 9% per annum from the date of the suit till its realization.

8. Feeling aggrieved by the same, the appellants herein have preferred appeal in R.A.No.43/2012 before the First Appellate Court. The First Appellate Court after re- appreciation of the material on record dismissed the appeal confirming the judgment and decree of the Trial Court and with modification that in addition the plaintiff is entitled to Rs.4,69,778/- towards leave encashment to the extent of 125 days. Feeling aggrieved by the same, the appellants-defendants have preferred this Regular Second Appeal under Section 100 of CPC. - 6 - R.S.A.No.100563/2014

9. This Court admitted the appeal on 16.02.2018 and framed following substantial question of law: “Whether the Rule 5 of the Karnataka Private Educational Institutions (Discipline Control) Rules, 1978 entitles the employees of the appellant-institutions to claim D.A. and other allowances on par with the Government employees who are governed by the KCSR Rules?”

10. I have heard Sri. Subramanya, the learned counsel appearing on behalf of Mallikarjunaswamy B Hiremath for the appellants and Sri. M. V. Latti, learned counsel on behalf of Sri. Mrityunjaya Tata Bangi, the learned counsel appearing for the respondent.

11. Sri. Subramanya, learned counsel appearing for the appellant contended that the Trial Court has committed an error in decreeing the suit of the plaintiff without considering the fact that the defendant No.2-Institution is an unaided education institution covered under the provisions of Karnataka Education Act, 1983 (hereinafter referred to as “the Act”) He further emphasized that as the plaintiff is an employee of the education institution and as such, the plaintiff has to approach the competent authority under section 131, 132 and 134 of the - 7 - R.S.A.No.100563/2014 Act. Referring to Rule 5 of the Karnataka Private Education (Discipline and Control) Rules 1978 (hereinafter referred to as “Rules”), it is contended by the learned counsel for the appellants that the pay-scale of the employee of a private educational institution shall be corresponding to the post in the Government Education Institution, however certain benefits like DA, CCA, HRA and other allowances cannot be equated with that of the government employees. It is also argued by the learned counsel appearing the appellants employees of the appellants-institutions were appointed as per the rules and regulations of the appellant No.1-society and therefore they cannot be equated with the government servants, who were governed under Karnataka Civil Service Rules (for short “KCSR”). He also refers to the appointment orders issued by the appellant-institution in favour of the respondent-plaintiff wherein it is clearly stated that the service rules and regulations of the appellant-institution is applicable to the service condition of the employees and therefore, sought for interference of this Court.

12. Nextly, it is contended by Sri. Subramanya, learned Counsel that, the Trial Court has committed an error in shifting the burden on the defendants-appellants herein to prove the - 8 - R.S.A.No.100563/2014 entitlement of the respondent/plaintiff, which is quite strange and contrary to law. Hence, the learned counsel appearing for the appellants sought for interference of this Court.

13. In order to buttress his arguments, he refers to the judgment of this Court in W.P.No.201481/2021 disposed of on

10.02.2022, confirmed by the Division Bench of this Court in W.A.No.200040/2022 disposed of on 01.07.2022 and argued that, the relief sought for by the plaintiff in the suit cannot be accepted in this appeal. He also refers to the judgment of the Hon’ble Supreme Court the case of The Premier Automobiles Ltd., v. Kamlekar Shantaram Wadke1 and contended that the suit itself is not maintainable before the Civil Court and accordingly sought for setting aside the impugned judgment and decree passed by the Court below. He also refers to the judgment of the Hon’ble Supreme Court in the case of Sushil Kumar Mehta v. Gobind Ram Bohra (Dead) through his LRs2 and argued that the judgment rendered by a Court having no jurisdiction is nullity in law. He also refers to the judgment of the Hon’ble Supreme Court in the case of Dr.Jagmittar Sain Bhagat & Others v. Dir. ORDER i) The appeal is allowed. ii) Judgment and decree dated 15.04.2014 passed by the III Additional District Judge, Belgaum, in RA No.43/2012 and judgment decree

24.09.2011 in OS No.178/2007 on the file of Principal Senior Civil Judge, Belgaum, are hereby set aside. iii) Suit filed by the plaintiff is dismissed. Sd/- (E.S. INDIRESH) JUDGE SMM/YAN, CT:VP