Shri B.D. Dobhal (Deceased) ... vs Tibbia College Board & Anr.
2011 Latest Caselaw 1749 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Date of Judgment: 25.03.2011


+            RSA No.120/2006 & CM No. 4761/2006


SHRI B.D. DOBHAL (DECEASED) THROUGH
HIS LEGAL HEIRS                        ...........Appellant
              Through: Mr.M.G. Dhingra, Advocate.

                  Versus

TIBBIA COLLEGE BOARD & ANR.           ..........Respondents
              Through: Mr.Sunil Bagai, Advocate.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers may be allowed to
       see the judgment?

    2. To be referred to the Reporter or not?               Yes

    3. Whether the judgment should be reported in the Digest?
                                                         Yes

INDERMEET KAUR, J. (Oral)

1 This appeal has impugned the judgment and decree dated

24.01.2006 which had endorsed the findings of the trial Judge

dated 07.02.1989 whereby the suit filed by the plaintiff R.D. Dobhal

against the defendant namely Tibbia College Board to the effect

that a decree of declaration be passed in his favour that his

termination be declared null and void and he be treated to be in

continuation of service with the defendant college had been

dismissed.

2 The plaintiff was a student in the defendant College since

1939. He graduated with a gold medal. He was subsequently

appointed as an officiating principal of the college and continued in

employment thereof. In para 5 of the plaint, it has been averred

that the College was governed by the Tibbia College Act, 1952

(hereinafter referred to as the said Act); plaintiff was appointed in

service by the Board. In para 7 of the plaint, it has been averred

that the University of Delhi is a body incorporated under the Delhi

University Act, 1922; Section 2 (a) defines „teacher‟. Defendant No.

1 i.e. the Tibbia College Board was affiliated to the Delhi

University; Ordinance XVIII Clause (9) applicable to the Delhi

University teachers clearly states that

„No decision for the termination of the services of any teacher or Principal appointed on substantive basis whether on probation or permanent, or for his suspension, shall be taken by the College or the Institution concerned without the prior approval of the Vice Chancellor.‟ Contention of the plaintiff/ appellant is that he being a

teacher of the Tibbia College Board which has since been affiliated

to the Delhi University and as such he was governed by Ordinance

XVIII Clause (9) which specifically postulated that no teacher or

principal appointed shall be terminated from his service or

suspended except with the prior approval of the Vice-Chancellor. It

is submitted that no such approval had been taken. The enquiry

proceedings had also been challenged; it was submitted that

except the additional charge, all other charges leveled against the

plaintiff/ appellant had been disproved; only the additional charge

that he was employed in the period of his suspension in another

place stood proved; enquiry was vitiated ; it was liable to be set

aside. For all the aforenoted reasons, decree had been prayed for.

3 In the written statement, the specific defence of the

defendant was that the defendant was not affiliated to the

University of Delhi; plaintiff was not a "teacher" of the University

of Delhi; ordinance XVIII of the Delhi University was not

applicable. It was stated that the defendant was not affiliated to

the college in the strict sense; it had only been admitted to certain

privileges by the University. Vide letter dated 06.05.1976 Ex. DW-

2/2, the University had recognized that the service conditions of

the University employees are not applicable to the employees of

Ayurvedic & Unani Tibbia College. Attention has been drawn to the

Regulations published by the Government of India, Delhi

Administration (notified in the Delhi Gazette) in pursuance of

Section 16 (c)of the Tibbia College Act, 1952. It is pointed out that

„principal‟ has been defined; „teacher‟ does not find a separate

definition; an "employee" has been defined; a teacher fits into the

category of an employee. The plaintiff being an employee was

terminated in terms of the aforenoted Regulations i.e. Regulation

17; the remedy available to the plaintiff/ appellant was to file an

appeal against this order; in fact he had filed an appeal but during

the pendency of the appeal, he had filed the present suit; suit is not

maintainable.

4 Before the trial Judge issues were framed. Inter-alia issue No.

3 was framed. It reads as under:-

"Whether the plaintiff‟s services were governed by ordinance XI & XVIII of Delhi University as alleged in para 13 of the plaint? OPP"

5 Oral and documentary evidence was led. The plaintiff had

produced documentary evidence i.e. Ex. PW-2/2, Ex. PW-3/1 to Ex.

PW-3/3 to substantiate his submission that the defendant was

affiliated with the University of Delhi. Per contra, defendant had

relied upon Ex. DW-2/2 i.e. letter dated 06.05.1976 wherein the

Delhi University had communicated that the service conditions of

the University employees as prescribed under the Ordinance are

not applicable to the employees of the Tibbia College Board. On the

basis of this oral and documentary evidence adduced before the

court, the suit of the plaintiff had been dismissed.

6 This finding had been endorsed by the first appellate court.

The finding, which is relevant for the decision of this appeal,

related to issue No. 3 and reads as follows:-

" Issue No. 3 was „whether the services of the appellant were governed by Ordinance XI & XVIII of Delhi University, as alleged in para 13 of the plaint.?

In this regard, ld. Civil Judge came to the conclusion that service condition of university employees as prescribed under the ordinance were not applicable to the employees of defendant college. He came to the conclusion that plaintiff was a teacher, as defined in the Calender Ex. DW-2/2 pertained to the employees and not to the teachers. According to him, terms „employee‟ was wide enough to include all types of employees, teaching and non-teaching. He relied upon Ex. PW-3/1 and came to the conclusion that it led to the same conclusion because in the said letter Deputy Secretary Medical had desired the defendant to bring their service condition in consonance with service condition of employees of Delhi University. He reasoned that if service conditions of Delhi University were to apply as such, there was no necessity of requiring the defendant/respondent to amend their service conditions to bring them at par with the service conditions of the employees of the university. Therefore he decided the issue against the appellant. I also do not find any infirmity in the conclusion reached by the ld. Civil Judge on this issue also."

7 On behalf of the appellant, it has been urged that the finding

in the impugned judgment is perverse, the impugned judgment has

failed to appreciate that the oral and documentary evidence in the

correct perspective. Attention has been drawn to the testimony of

PW-2 as also the cross-examination of DW-2; attention has also

been drawn to the documentary evidence noted supra. It is

submitted that the appellant/plaintiff was admittedly appointed as

a lecturer; he was not an employee; a lecturer is included in the

definition of "teacher" as given in Section 2 (g)(h) of the Delhi

University Act, 1922. The prior approval of the Vice-Chancellor had

not been taken; termination of the plaintiff/appellant was thus

illegal; the Ordinance XVIII Rule (9) was clearly applicable to the

case of the appellant.

8 Arguments have been countered. It pointed out that the

defence of the defendant all along has been that Tibbia College

Board was never affiliated to University of Delhi. The appellant was

an employee of the said Board and was dismissed as per

regulations which did not require prior approval of the Vice-

Chancellor.

9 This is a second appeal. It had been admitted and on

29.03.2006, the following substantial question of law was

formulated:-

"Whether the Ordinance XVIII clause 9 is applicable to the appellant who was a teacher in the respondent college?"

10 Record has been perused. The plaintiff was admittedly

working in the Tibbia College; he was appointed as a lecturer and

thereafter he became the officiating principal. PW-2 Rajinder

Kumar was the Section Officer from the Delhi University. He had

brought the summoned record. He had proved Ex.PW-2/1 to Ex.

PW-2/3. PW-3 was a witness from the medical department of Delhi

Administration. He had also produced the summoned record and

proved Ex. PW-3/1 & Ex. PW-3/2. DW-2 had brought the summoned

record of the Tibbia College Board. He had proved Ex. DW-2/1 &

Ex.DW-2/2. This documentary evidence has been proved through

summoned witnesses. Documents are not in dispute. These

documents were scrutinized by both the two courts below.

Ex.DW-2/1 is a communication dated 29.08.1975 wherein the

University Grants Commission (UGC) had accepted the proposal of

the Delhi University for affiliation of the Ayurvidic & Unani Tibbia

College w.e.f. 1973-1974 subject to the condition that this will not

involve any financial liability on the part of the UGC. Ex.PW-3/1

dated 01.04.1976 is a communication of the Deputy Director of the

Medical Department of the Delhi Administration to the Registrar of

the Tibbia College Board stating herein as follows:-

"Since the Tibbia College has been affiliated to the Delhi University, it would be administratively more appropriate that the regulations governing the service conditions of the employee of the Tibbia College Board are brought in consonance with those governing the service conditions of the employees of the Delhi University"

This communication states that the service conditions of the

employees of the Tibbia College may be considered to be brought

in consonance with the service conditions of the employees of the

Delhi University; it was a proposal yet to be considered and

finalized.

11 Ex. PW-3/3 (upon which heavy reliance has been placed by

learned counsel for the appellant) is a copy of letter dated

22.09.1978 from the Deputy Registrar, University of Delhi to the

Under-Secretary Medical, Delhi Administration. It reads as

follows:-

"Disciplinary Action against some of the members of the teaching staff-A & U Tibbia College

Pease refer to your letter No. F.31(16)/78-M (P&H) dated on the subject. In this connection, I am directed to draw you attention to the clause 9 of the Ordinance XVIII quoted below as desired:-

„No decision for the termination of the services of any teacher or Principal appointed on substantive basis whether on probation or permanent, or for his suspension, shall be taken by the College or the Institution concerned without the prior approval of the Vice Chancellor‟"

This communication has only highlighted the contents of

Ordinance XVIII sub Rule 9.

12 This was the evidence adduced by the plaintiff.

13 Per contra, the defendant has placed heavy reliance upon

Ex. DW-2/2 dated 06.05.1976. This communicated reads as

follows:-

"Dear Sir,

With reference to your letter No. F.7(25)/75-TCBO/340 dated 26.04.1976, I am to inform you that the service conditions of the University employees as prescribed under the Ordinances are not applicable to the employees of your College and as such, the University has nothing to say in this regard.

Yours faithfully

Deputy Registrar (Colleges)"

14 This communication by the Deputy Registrar of the Delhi

University to the principal of the defendant college informed him

that the Ordinances of the University of Delhi are not applicable to

the employees of the defendant college.

15 It was this document which had been relied upon by the two

courts below to return a finding that the service conditions of the

appellant/plaintiff are not governed by the Delhi University Act,

1922, Ordinances framed thereunder including Ordinance XVIII

Rule 9 is inapplicable. These are two concurrent findings returned

on the basis of examination of oral and documentary evidence

which finding in no manner can be said to be perverse.

16 The impugned judgment had rightly held that Ex. DW-2/2

clearly stated that the plaintiff/ appellant who was an "employee"

of the defendant college was governed by the Regulations framed

thereunder and had been dismissed under regulations 17. The

Regulations admittedly provide for a forum of appeal which had not

been adverted to by the plaintiff/appellant; he had filed an appeal

but during the pendency of the appeal, he had preferred to file the

present suit.

The said Regulations which have been framed under Section

16 (c) of the Tibbia College Act, 1952 are a government

publication. In the definition clause „chairman‟ has been defined;

"employee" has also been defined; he must be a whole time

employee of the Board. "Principal" has also been defined. The

contention of learned counsel for the respondent that a

teacher/lecturer has not been specifically defined and fits within

the definition of "employee" is forceful; a lecturer/teacher is a

wholetime employee of the Board. The plaintiff/appellant being a

lecturer was an "employee" of the defendant corporation; he was

governed by the regulations framed under the Tibbia College Act,

1952 in terms of which he was terminated. Ex. DW-2/2 clearly

stated that employees of Tibbia College are not governed by the

Ordinances of the Delhi University Act. Ordinance XVIII Rule 9

framed under the Delhi University Act, 1922 was not applicable.

17 In AIR 1962 SC 1314 Sir Chunilal V. Mehta & sons Vs.

Century Spinning and Manufacturing Co. Ltd. has reiterated that

the proper test for determining as to whether a question of law

raised in the case is substantial or not would be whether it is of

general public importance or whether it directly and substantially

affects the rights of the parties and if so whether it is either an

open question in the sense that it is not finally settled by this Court

or by the Privy Council or by the Federal Court or is not free from

difficulty or calls for discussion of alternative views. If the question

is settled by the highest court or the general principles to be

applied in determining the question are well settled and it is a

mere question of applying those principles or that the plea raised is

palpably absurd the question would not be a substantial question of

law.

18 In AIR 2010 SC 2685 Bharatha Matha & Anr. Vs. R. Vijaya

Renganathn & Ors., the Apex Court has reiterated that High Court

must not reappreciate evidence in a second appeal unless there is

perversity; interference is not called for.

19 There is no perversity in the impugned judgment. Substantial

question of law is answered accordingly. It is against the appellant.

Appeal as also the pending application are dismissed.

INDERMEET KAUR, J.

MARCH 25, 2011 a