The High Court · 2024

Judgment

13.08.2024 A.C. Behera, J. This 2nd Appeal has been preferred against the confirming Judgment.

2. The appellant of this 2nd Appeal was the sole plaintiff before the Trial Court in a money suit vide M.S No.212 of 1987 and she was the

Legal Reasoning

appellant before the First Appellate Court in the 1st appeal vide M.A. No.5/2 of 1998/1999. SA No.64 of 2002 {{ 2 }} The respondents of this 2nd Appeal were the defendants before the Trial Court in the said money suit vide M.S. No.212 of 1987 and respondents before the First Appellate Court in the 1st Appeal vide M.A. No. 5/2 of 1998/1999. The suit of the plaintiff (appellant in this 2nd Appeal) vide M.S. No.212 of 1987 was a suit for realization of money i.e. Rs.38,629.70 Paise towards her arrear salary.

3. The case of the plaintiff (appellant in this 2nd Appeal) against the defendants as per her pleadings in the suit vide M.S. No.212 of 1987 was that, initially she was working as an honorary Assistant Teacher in a private school i.e. Purunabasti Municipal M.E. School, Jharsuguda. Thereafter, she was appointed provisionally as an Assistant Teacher in that private school by its managing committee (defendant No.1) w.e.f.

01.04.1978. But, on dated 10.04.1980, as per the order of the managing committee (defendant No.1), the head master of Purunabasti Municipal M.E. School, Jharsuguda asked her (plaintiff) to produce her medical fitness certificate in order to continue there as a teacher of that school. Though, she (plaintiff) furnished a medical certificate obtaining from C.D.M.O. Sambalpur, but, still then, the head master asked her to furnish a medical certificate obtaining from Dr. A.K. Das of Government SA No.64 of 2002 {{ 3 }} Medical Hospital, Jharsuguda. Then, she (plaintiff) went to Dr. A.K. Das in order to obtain a medical fitness certificate. Accordingly, Dr. A.K. Das examined her (plaintiff), but refused to give certificate. As, she (plaintiff) failed to produce her medical fitness certificate, she (plaintiff) was prevented by the defendant No.1 (managing committee) to act as an Assistant Teacher of that Purunabasti Municipal M.E. School, Jharsuguda. Thereafter, she (plaintiff) made several representations through several letters to the head master as well as the school Managing Committee (defendant No.1) in order to allow her to work there as a teacher of that school, but they did not allow her to work there as a teacher. She (plaintiff) was neither dismissed from her service nor her service was terminated by the school managing committee (defendant No.1). For which, as per law, she was deemed to have worked as a teacher in the school. Therefore, she (plaintiff) claimed her arrear salary from the defendants since 01.07.1980 to 31.03.1986 by filing the suit vide M.S. No.212 of 1987 being the plaintiff against the defendants i.e. the Managing Committee of the Purunabasti Municipal M.E. School, Jharsuguda, Jharsuguda Municipality and the State.

4. All the defendants made their appearance in the suit separately. SA No.64 of 2002 {{ 4 }} Out of 3 defendants, the defendant No.2 filed its separate written statement challenging the suit of the plaintiff. The Jharsuguda Municipality (defendant No.2) challenged the suit of the plaintiff denying the allegations alleged by the plaintiff against it taking its stands that, Purunabasti Municipal M.E. School, Jharsuguda was neither managed by the Jharsuguda Municipality nor the same was under its control concerning the appointment or dismissal of the teachers of the school, but only the municipality was giving some funds for smooth running of the school as the said Purunabasti Municipal M.E. School, Jharsuguda was a private school inside Jharsuguda Municipality, which was running and managing by its managing committee. The appointment and the removal of the teachers of that school was under the control of the School Managing Committee (defendant No.1), but, the same was not under the control of the Executive Officer of Jharsuguda Municipality. That apart, prior to the filing of the suit against the municipality- (defendant No.2), no notice under Section 349 of the Municipal Act has been served by the plaintiff against the Municipality. For which, the suit of the plaintiff is not maintainable against the defendant No.2 (Municipality). The suit of the plaintiff is also barred by limitation. For SA No.64 of 2002 {{ 5 }} which, the plaintiff is not entitled for any relief in the suit. Therefore, the suit of the plaintiff is liable to be dismissed.

5. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 6 numbers of issues were framed by the Trial Court in the suit vide M.S. No.212 of 1987 and the said issues are: ISSUES Is the suit maintainable? Is there any cause of action for the suit? Whether the plaintiff is entitled to realise a sum of Rs.38.629.70 paise

1. 2. 3. from the defendants towards her arrear pay, D.A. & A.D.A? 4. 5. defendant No.1 with effect from 01.04.1978? 6. Whether the suit is barred by limitation? Whether the plaintiff was appointed as a regular teacher by the To what other relief, if any, the plaintiff is entitled?

6. In order to substantiate the aforesaid relief sought for by the plaintiff against the defendants, the plaintiff examined 6 witnesses on her behalf including her as P.W.1 and relied upon the documents vide Exts.1 to 16. On the contrary, the defendants contested the suit of the plaintiff cross-examining the witnesses of the plaintiff without examining any witness on their behalf.

7. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered SA No.64 of 2002 {{ 6 }} all the issues against the plaintiff and in favour of the defendants and dismissed the suit of the plaintiff vide M.S. No.212 of 1987 on contest against the defendants as per its Judgment and Decree dated 23.11.1998 and 07.12.1998 respectively assigning the reasons that, she (plaintiff) was appointed as a teacher of Purunabasti Municipal M.E. School, Jharsuguda by its Managing Committee w.e.f. 01.04.1978 and she had worked there as a teacher of that school since 01.04.1978 to 30.06.1980 and as per her own admissions, she (plaintiff) has already been paid for the said period. She (plaintiff) was asked by the School Managing Committee (defendant No.1) to produce her medical fitness certificate, but she could not produce the same, for which, she was not allowed to work as a teacher in that school. When, she (plaintiff) has already been paid for the period, for which, she (plaintiff) had worked in the school, as a teacher and when, she (plaintiff) has claimed salary for the period, for which, she has not worked practically as a teacher in the school by filing the suit without approaching the appropriate authority i.e. Education Tribunal or the Hon’ble Courts, then, the plaintiff is not entitled for any monetary relief against the defendants towards her salary.

8. On being dissatisfied with the aforesaid Judgment and Decree of the dismissal of the suit of the plaintiff vide M.S. No.212 of 1987 passed SA No.64 of 2002 {{ 7 }} by the Trial Court in M.S. No.212 of 1987 on dated 23.11.1998 and

07.12.1998 respectively, she (plaintiff) challenged the same by preferring the 1st Appeal vide M.A. No.5/2 of 1998/1999 being the appellant against the defendants arraying them (defendants) as respondents. After hearing from both the sides, the 1st Appellate Court dismissed that 1st Appeal vide M.A. No.5/2 of 1998/1999 of the plaintiff on contest concurring/accepting the findings and observations of the Trial Court as its Judgment and Decree dated 28.09.2001 and 10.10.2001 respectively.

9. On being aggrieved with the aforesaid Judgment and Decree of the dismissal of the 1st Appeal vide M.A. No.5/2 of 1998/1999 of the plaintiff, she (plaintiff) challenged the same by preferring this 2nd Appeal being the appellant against the defendants arraying the defendants as respondents. This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e. (i) Whether the learned court below have committed an error of law in holding that even though the plaintiff was not served with the order of termination from service, but when she was not allowed to work from 12.08.1980, the same amounts to termination of service and when she has not challenged SA No.64 of 2002 {{ 8 }} such termination in any forum as yet, whether she is entitled to get remuneration from 12.08.1980? (ii) Whether the learned court below has committed an error of law in holding that the plaintiff having not challenged the order of termination, she cannot claim monetary benefit for the period when she did not perform her duties in the school?

Legal Reasoning

I have already heard from the learned counsels of both the sides.

11. As the above two formulated substantial questions of law are interlinked as per the Judgments and Decrees under challenge passed by the Trial Court and First Appellate Court on the basis of the pleadings and evidence of the parties, then, both the aforesaid substantial questions of law are taken up together analogously for their discussions hereunder: As per the pleadings of the plaintiff (appellant in this 2nd Appeal), initially, she (plaintiff) was working as an honorary Asst. Teacher of a private school i.e. Purunabasti Municipal M.E. School, Jharsuguda. Thereafter, she (plaintiff) was appointed provisionally as an Assistant Teacher in that school by its Managing Committee since 01.04.1978. Accordingly, she (plaintiff) worked as a teacher in the said school since

01.04.1978. She has already been paid by the school Managing Committee for the period since 01.04.1978 to 30.06.1980, during which period she had imparted her teachings to the students of that school, but, SA No.64 of 2002 {{ 9 }} when, she (plaintiff) failed to produce her medical fitness certificate required by the school Managing Committee (defendant No.1), then, she (plaintiff) was not allowed to work as a teacher in the school by the School Managing Committee (defendant No.1). For which, she (plaintiff) claimed her arrear salary for the period from 31.03.1986 to 01.07.1980 by filing the suit against the defendants.

12. When, it is the own pleadings of the plaintiff in Para No.1 of her plaint that, she was appointed by the School Managing Committee (defendant No.1) provisionally to work as a Teacher, then, it pre- supposes that, her appointment by the Managing Committee (defendant No.1) of the school was provisionally subject to compliances of the conditions of her appointment required by her employer i.e. School Managing Committee (defendant No.1) and she (plaintiff) had accepted her such provisional/conditional appointment. The pleadings of the parties, materials, documents and evidence available in the record are going to show that, the employer of the plaintiff i.e. the School Managing Committee (defendant No.1) taking the physical condition of the plaintiff into account asked her to produce medical fitness certificate. But, the plaintiff failed to produce the same, for which, she (plaintiff) failed to fulfil the conditions of her provisional SA No.64 of 2002 {{ 10 }} appointment. Therefore, she (plaintiff) had not worked as a teacher in that school since 01.07.1980. It appears from the Order No.11 dated 05.11.2009 in this 2nd Appeal that, the Purunabasti Municipal M.E. School, Jharsuguda has already been taken over by the Government of Odisha.

13. It is the settled propositions of law that, an employee shall be eligible to get his or her salary without work, when such employee will have been got away from his/her job by the authorities for his/her no fault in spite of his/her willingness to work. In that case, the theory of no work no pay shall not be made applicable. Here in this suit at hand, when the appointment of the plaintiff was purely provisional/conditional in a private upper primary school and when the plaintiff failed to fulfil the genuine condition/requirement of her conditional appointment to furnish her medical fitness certificate, then, for her such fault, she (plaintiff) cannot claim her right to work in that school as a teacher. When, the plaintiff has not rendered any service as a teacher in the school since 01.07.1980 for no other reason, but only for her own fault i.e. for non-fulfilment of the requirement/condition of her conditional SA No.64 of 2002 {{ 11 }} appointment and when, the plaintiff has not rendered any service as a teacher of the school since 01.07.1980 then, at this juncture, without rendering any service as a teacher in the School, she (plaintiff) is not entitled to get any salary from the Managing Committee (defendant No.1) of that school.

14. As per Rule 31 (d) of The Odisha Education (Establishment, Recognition and Management of Private Upper Primary Schools) Rules 1951, the managing committee of a private school like the Purunabasti Municipal M.E. School, Jharsuguda (defendant No.1) had every authority concerning the appointment of the teaching and non-teaching staffs of the school. As per Section 24-(B) of the Odisha Education Act, 1969, the State Educational Tribunal shall have jurisdiction, power and authority to adjudicate all disputes and differences, between the Managing Committee, or, as the case may be, the governing body of any private educational institution and any teacher or employee of such institution or the State Government or any officer or authority of the said Government, relating to or connected with the eligibility, entitlement, payment or non- payment of grant-in-aid. SA No.64 of 2002 {{ 12 }}

15. As, here in this suit/appeal at hand, the plaintiff has claimed her arrear salary, but when, as per law, the State Educational Tribunal has power and authority to decide the disputes relating to the arrear salary of the teachers of the school, then, the matter of dispute between the parties concerning the arrear salary of the plaintiff was entertainable before its appropriate authority i.e. before the State Educational Tribunal, but, not before the Civil Court. The absence of the plaintiff from the school for a long period since

01.07.1980 without approaching any appropriate authority under law and without making any prayer for mandatory injunction directing the plaintiff to allow her to work in the school amounts to voluntary abandonment of service by the plaintiff, which has ultimately resulted termination of her service automatically for non-fulfilment of the genuine condition/requirement of her provisional/conditional appointment. As, without making any prayer for setting aside the above automatic termination of service of the plaintiff from the school, she (plaintiff) has claimed her arrear salary in the suit for the period, during which, she has not practically worked, indirectly for setting aside the termination of her service without approaching the appropriate SA No.64 of 2002 {{ 13 }} forum/authority for the same, the suit of the plaintiff has not become maintainable under law against the defendants. Therefore, the concurrent findings made by the Trial Court and First Appellate Court for the dismissal of the suit of the plaintiff are not all interfereable through this 2nd Appeal filed by the appellant (plaintiff).

16. Therefore, there is no merit in the appeal of the appellant (Plaintiff). The same must fail.

17. In result, the 2nd Appeal filed by the appellant (plaintiff) is dismissed on contest, but without cost.

18. The Judgment and Decree passed by the Trial Court in dismissing the suit vide M.S. No.212 of 1987 of the plaintiff and the confirmation of the same by the First Appellate Court in M.A. No.5/2 of 1998/1999 is confirmed. Orissa High Court, Cuttack. Rati Ranjan Nayak// Senior Stenographer Date:13.08.2024 Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 16-Aug-2024 14:37:03 SA No.64 of 2002 Sd/- (A.C. Behera), Judge. True copy attested by