Governing Body Of Sri Aurbindo ... vs Shri Vinod Kumar Jain And Ors.
2007 Latest Caselaw 1365 Del

JUDGMENT

Sanjay Kishan Kaul, J.

CS (OS) No.1191/1994 and IA No.506/1998 (Under Section 30 of the Arbitration Act, 1940)

1. The plaintiff has filed a suit under Sections 14 and 17 of the Arbitration Act, 1940 (hereinafter referred to as the said Act), seeking the award dated 21.4.1994 to be filed in this Court and the same be made rule of the court in accordance with the law. It is stated in the suit that in pursuance to suit No. 220A/1987 filed by defendant No. 1 seeking reference of disputes to arbitration to the appeal committee to be appointed by the Chancellor of the University of Delhi (defendant No. 2), this Court had been pleased to pass a judgment dated 11.11.1988 allowing the same. In pursuance thereto the appeal committee was constituted by defendant No. 2, consisting of three persons, which entered upon reference and made and published award dated 21.4.1994. The original award was also filed in Court as an annexure to the suit.

2. Defendant No. 1 on receipt of notice filed objections under Sections 30 and 33 of the said Act vide IA No. 506/1998. In order to appreciate the controversy the necessary facts are being set out hereinafter.

3. Defendant No. 1 was employed as a Lecturer in the Department of Commerce of the plaintiff college in pursuance to the agreement of August 1975 and was dismissed from service by the Governing Body of the college in 1985 with which defendant No. 1 was aggrieved. Prior to the said order in the year 1980, defendant No. 1 went on study leave in accordance with the rules of the university and rejoined duties in February 1982. There is an allegation by defendant No. 1 of there have been delays in assignment of timetable and of the timetable being extremely harsh and arbitrary. It is the case of defendant No. 1 that he continued to take classes under protest.

4. The new academic session commenced in July 1982 and it is the case of defendant No. 1 that he started taking classes but when in August 1982 he went to collect his salary, he was informed that as per some oral instructions his salary is not to be paid. Defendant No. 2 found out that the Principal of the college had on 28.8.1982 instructed the Head of the Department in writing not to release any salary to defendant No. 1. Defendant No. 1 registered his protest and stated that he would be only resuming his classes when his salary would be released. The salary was not released to him despite letters addressed and on the other hand he was accused of not coming to college and not taking classes.

5. Defendant No. 1 met the Principal on 3.9.1982 and defendant No. 1 alleges that the Principal misbehaved with him which resulted in defendant No. 1 addressing a letter dated 6.9.1982. Defendant No. 1 claims that the said defendant was not in knowledge of the fact that the Principal had set up an inquiry committee on 6.9.1982 which met on 10.9.1982 but the meeting was postponed. On 21.9.1982 defendant No. 1 was served with a letter informing him that an inquiry committee had been set up and he should attend the same. In the meeting defendant No. 1 explained his stand by stating that since he was not being paid his salary he had stopped taking classes but on certain assurances, defendant No. 1 resumed classes. Despite this his salary was not released to him.

6. There was subsequently a DUTA strike and classes were not taken by any teacher. Defendant No. 1 claims to have written several letters during this period of time but was informed by the Principal vide letter dated 12.10.1982 that his salary should not be released as the inquiry committee had not issued any instructions with regard to his salary. Defendant No. 1 states that he resumed taking classes when the DUTA strike ended on 29.1.1983.

7. Defendant No. 1 had not been paid salary for about six months. Defendant No. 1 stopped taking classes after informing the Principal vide letter dated 7.2.1983 that his salary must be released first and followed this up with another letter dated 16.4.1983.

8. Defendant No. 1 claims that though the committee set up by the Governing Body held meetings from time to time, no charges were framed against defendant No. 1, no evidence was led and naturally no witness produced but despite this fact the committee recommended the issuance of a show cause notice for termination of his services and for his salary not to be paid for the period he had not taken classes.

9. The meeting of the Governing Body held on 20.2.1984 when the proposal of the inquiry committee was accepted and it was decided that the proposal for termination of services of defendant No. 1 be accepted. It was observed that the charges of unauthorised absence from duty and showing utter disregard for rules and regulations by not executing a bond with the college for further study despite reminders stood fully proved in the inquiry report. Defendant No. 1 protested against the same vide letter dated 25.2.1984 wherein inter alia it was pointed out that defendant No. 1 was taking classes as late as February 1983 even though his salary was stopped in July 1982. The Governing Body in its meeting decided to terminate the services of defendant No. 1 for which necessary approvals were subsequently taken from the Vice-Chancellor on 1.10.1985.

10. It is against the said decision that defendant No. 1 filed a petition under Section 20 of the said Act in view of Clause 9 of Ordinance XII of the Ordinances of the University, which reads as under:

Order XII College Appointed Teachers ...

9. (1) Any dispute arising in connection with the termination of the services of the teacher, except when on probation, by the Governing Body shall be referred to the arbitration of an Appeal Committee of three independent persons appointed by the Chancellor, who shall have power to inquire into all the facts of the case and to interpret the terms of this agreement, and their decision shall be final and binding on both parties. The Appeal Committee shall give its final decision within a reasonable time:

Provided that during the pendency of the appeal, the teacher shall draw his/her full salary.

(2) The Indian Arbitration Act, 1940, shall apply to an arbitration under this clause.

11. The appeal committee stated to have held its meeting and finally given the award on 21.4.1994 upholding the decision of the Governing Body.

12.The principal grievance of defendant No. 1 is that neither the inquiry committee nor the appeal authority recorded any evidence at any stage. No terms of reference of the inquiry committee was fixed, no charge sheet was supplied to defendant No. 1 and no procedure was followed but with a pre-meditated mind, single purpose of removing defendant No. 1 from services was achieved. Insofar as inquiry committee is concerned defendant No. 1 has stated that the findings are of 31.5.1983 but the report records that defendant No. 1 was given time to file a reply by 10.6.1983 which he did by filing several letters. Thus if the report is of 31.5.1983 the representations of defendant No. 1 could never have been considered. It is this report which has been utilised by the appeal authority to come to an adverse conclusion against defendant No. 1. Defendant No. 1 also relies upon Clause 4 of Ordinance XII of the Ordinances of the University, which reads as under:

(4) A teacher who has been in service up to the last day the preceding session shall be entitled to vacation salary provided he has been reappointed and is in position on the reopening day after the vacation. In such cases the vacations will not constitute a break in service.

13. It is the case of defendant No. 1 that in view of the aforesaid clause as also Clause 9 referred to aforesaid there can never be detention of any salary of defendant No1.

14. The plaintiff on the other hand pleads that defendant No. 1 failed to comply with the mandatory requirement of the bond and was fully aware of the allegations of violation of rules and of not taking classes made against him. This is what resulted in the stoppage of his salary in the month of August 1982. It is admitted that no formal charge sheet was issued but it is alleged that defendant No. 1 was aware of the charges levelled against him and the rules of natural justice are flexible. The award is stated to be a non-speaking award and thus the scope of interference by this Court is stated to be limited in such a case. It is also pleaded that defendant No. 1 cannot be paid even though he is not working.

15. On hearing learned Counsels for the parties, it is really not in dispute that there was never any charge sheet issued to defendant No. 1, no evidence was ever led and no witness produced. It is no doubt true that this Court while examining the objections under Sections 30 and 33 of the said Act does not sit as a court of appeal to reappraise evidence to come to a different conclusion. The scope is even more restricted in a non-speaking award. It, however, cannot be lost sight of that the matter in dispute relates to the termination of the services of a university Lecturer and thus the consequences are severe for defendant No. 1. It is also true that the rules of natural justice are not in a straight jacket but one has to see whether broadly the principles have been followed.

16. In my considered view there have been gross violations of the principles of natural justice and procedures by both the committee and appeal tribunal while arriving at a finding against defendant No. 1. The documents placed on record do show that there were communications exchanged between the Principal and defendant No. 1 about the blockage of his salary and the issue of his taking classes. It is the case of defendant No. 1 that though in between he stopped taking classes he was taking classes earlier for which he was not paid and even subsequently resumed taking classes on the assurance that his salary would be released. The material aspect is whether defendant No. 1 was taking classes and yet his salary was stopped due to some animosity or whether he was not not taking classes at all. If defendant No. 1 was not being paid his salary for no fault of his and was yet expected to take classes the matter was required to be examined. The question also arose whether defendant No. 1 had resumed classes and yet was not paid for the same.

17. In such a dispute it cannot be expected that a committee would proceed without issuing a charge sheet making defendant No. 1 fully aware of what aspects he had to defend. It is not permissible for the plaintiff to contend that since defendant No. 1 broadly knew what he was going to face there was compliance with principles of natural justice. The charge of not executing the bond was also added when the plaintiff had directly re-joined after study leave. The irony is that neither before the committee nor before the appeal authority was defendant No. 1 ever given an opportunity to lead evidence to substantiate his defense and yet defendant No. 1 has been visited with severe consequences of termination of his services.

18. In my considered view such a procedure is not permissible in law and defendant No. 1 has been denied of the opportunity of knowing the exact charges framed against him as no charge sheet was issued. Defendant No. 1 has been denied the opportunity to lead any evidence to substantiate his defense.

19. Learned Counsel for the plaintiff sought to rely upon the proceedings under the Industrial Disputes Act, 1947 which form subject matter of adjudication in Burn and Co. v. Their Employees to contend that even where no formal charge sheet is drawn up the same would not vitiate the order of dismissal and the workmen knew what the charges against him and had an opportunity of giving an explanation. Firstly, the said judgment is in respect of the Industrial Disputes Act. Secondly the question is whether there was an adequate opportunity for giving explanation. In the present case, in my considered view, the absence of charge sheet clearly made it not possible for defendant No. 1 to know of the charges sought to be levelled against him. In fact the inquiry appears to have proceeded only on the question of his not taking classes but in between issue of not filling the bond also arose. Defendant No. 1 did not get any adequate opportunity to meet the case as set up by the plaintiff or produce evidence.

20. In view of the aforesaid position, the procedure followed by the committee and the appeal authority to which the reference to arbitration was made cannot be sustained and the award cannot be made rule of the court. The objections filed by defendant No. 1 are thus liable to be sustained and the award dated 21.4.1994 is consequently set aside.

21. In view of the aforesaid the application is allowed and the suit is dismissed leaving the parties to bear their own costs.

22. In the end, I am constrained to observe that every endeavor was made to see that some amicable solution could be worked out as defendant No. 1 has remained away from teaching for quite some time. It is in view thereof it was put to defendant No. 1 whether he would be satisfied with his honour restored to the extent of setting aside of the award but on the condition that he would not claim any emoluments after the date of the award and would tender his resignation from that date so as to put an end to the dispute. Despite a number of opportunities taken ultimately learned Counsel for the plaintiff stated that even this was not acceptable to the Managing Committee of the plaintiff. There was, thus, no option but to decide the matter on merits about the validity of the award.