Subodh Kr. Chakroborty v. University of Calcutta — 1984 DIGILAW 207 (CAL)

ORDER This is an application made by Dr. Suboth Kumar Chakraborty the petitioner herein made under Article 226 of the Constitution for issuance of a writ in the nature of mandamus quashing the order dated 4.2.76 affirming the order of the Finance Committee dated 11.12.75 as contained in the letter Annexure ‘B’ to the petition and also issuance of a writ of mandamus directing the respondents to pay him the gratuity amount of Rs.18,000/- or such other amount under Rule II, Condition 3C framed by the Senate together with interest @ 10% per annum. 2. A rule was issues by the Hon’ble Mr. Justice B.C. Ray on 18.9.80 and it was directed against the vice-Chancellor, Pro-Vice-Chancellor of Business Affairs and Finance, University of Calcutta, the Calcutta University Council through its Secretary and the Registrar of the University of Calcutta. 3. The petitioner's case is that he is a brilliant mathematician and had secured highest number of marks among all successful candidates who passed the M.Sc. Examination in different subjects in the year 1932. He became a Premchand Raichand Scholar and become the D(Sc)of the University of Calcutta. He was recipient of various prizes and gold medals for his academic brilliance. 4. Dr. Chakraborty the petitioner herein as it appears from records was a mathematician of great repute. In the year 1949 he was appointed to the post of Professor and Head of the Department of Mathematics and Geo-physics of Sibpur Engineering College in the West Bengal Senior Education Service. He was also the President of the Mathematics Section of the Indian Science Congress in 1954. 5. There was an endowment created by Dr. Rash Behari Ghosh with the sum of Rs.10,00,000/- in the year 1913 and Sri Rash Behari Ghosh placed at the disposal of the Calcutta University the munificient sum of Rs.10,00,000/- for the promotion of scientific and technical education. 6. The petitioner's case is that the post of Sri Rash Behari Ghosh Professorship of Applied Mathematics fell vacant in the year 1962, advertisement was issued but as no suitable candidate was available the offer come to the petitioner herein who did not himself apply for the said post. 6. The petitioner's case is that the post of Sri Rash Behari Ghosh Professorship of Applied Mathematics fell vacant in the year 1962, advertisement was issued but as no suitable candidate was available the offer come to the petitioner herein who did not himself apply for the said post. The Vice Chancellor and the Syndicate of the University on the recommendation of the Selection Committee decided to offer to the petitioner the post of Sri Rash Behari Ghosh Professorship on a permanent basis in Applied Mathematics on a salary of Rs.1500/- per month plus the admissible allowance w.e.f. the date he joined the post till the completion of his 62nd year subject to the usual terms and conditions. The petitioner joined the service on the forenoon of 14th August, 1963 in his post as the Rash Behari Ghosh Professor and Head of the Department in Applied Mathematics and he served till 20th September, 1974 when he retired on superannuation. Immediately before his retirement the petitioner addressed a letter being letter no. AM.ED(1)140 dated 25.2.74 to the Pro-Vice-Chancellor of Business Affairs and Finance requesting to arrange for payment of gratuity but however by their letter dated 31st March, 1976. Annexure ‘B’, Registrar of the University of Calcutta Wrote that his case for payment of gratuity was considered by the Finance Committee and it was decided that under Rule 1 of the University Provident Fund Rules he will not be entitled to gratuity. 7. The petitioners case is that the condition of the Rash Behari Professorship of the University of Calcutta provides that a Professor, on retirement on the ground of either attainment of age or of proved ill health, will be entitled to receive gratuity of one month pay for each completed years tenure of appointment; but such gratuity shall in no case exceed a maximum limit of eighteen months salary and as such there could not be any prohibition or bar which would disentitle him for being paid of the said gratuity. Petitioner’s further case is that he was appointed under the Calcutta University Act, 1951 and when the said Act was still in force the Senate and the Supreme Governing Body of the University adopted certain rules for the payment of gratuity to all whole-time permanent employees at its meeting held on 2nd of June, 1956 and the said rule for payment of gratuity was giving effect to from the year 1955-56. Petitioner also stated that one of the said rules adopted the resolution that a certain additional sum of rupees would be given as gratuity to whole time employee subscribing to the provident fund or eligible for pension who has rendered continuous approved service for not less then 15 years and that resolution was given effect to Mr. Pal argued that such a rule in fact had the effect to lift the ban and even if there is any such ban that one cannot participate both to contributory provident fund and also to gratuity. Mr. Pal contended refuting the argument of Mr. Mukherjee appearing on behalf of the University that a person contributing to provident fund and/or enjoying the privilege of contributory provident fund is debarred from being entitled to gratuity has been given a go-bye otherwise such a rule could not be framed. 8. The petitioner has also stated that although Registrar purported to invoke Rule 1 of the Contributory Provident Fund Rules of the University of Calcutta for justifying his action to disentitle the petitioner from receiving any gratuity, three other professors as mentioned in paragraph 35 of the petition have been given gratuity under similar circumstances and it will be a violation of Article 14 of the Constitution when such a gratuity is withheld from the petitioner. 9. In the affidavit in opposition affirmed by the Registrar of the University of Calcutta, University has disputed the claim of the petitioner for any right of payment of gratuity as there was no rule or system of such payment to any employee whether of teaching or non-teaching staff and referred to Rule 1 of the University Provident Fund Scheme made the Contributory Provident Fund Rules to support his contention. In paragraph 7 it has been stated that the petitioner has made himself disentitled for payment of gratuity by joining the University Provident Fund. In paragraph 7 it has been stated that the petitioner has made himself disentitled for payment of gratuity by joining the University Provident Fund. The petitioner stated in paragraph 24 of the petition that being frustrated in his attempt to receive the gratuity he wrote a demi-official letter to the Vice-Chancellor himself but he did not receive any reply thereto. Thereafter the petitioner submitted an application to the Vice-Chancellor dated 6th March, 1978 for constitution of an arbitration tribunal under S. 48 of the Calcutta University Act, 1951 which was in force when he joined the University and/or under S. 35(1) of the Calcutta University Act, 1966 which was in force at the time of his superannuation. But the said application for reference to arbitration was turned down. 10. The Registrar who affirmed the affidavit in opposition states in paragraph 10 of the said affidavit that after retirement from service the petitioner ceased to be a teacher of the University in view of S. 2(18) of the Calcutta University Act, 1966. Therefore, petitioner could not claim to refer the dispute of the University to an arbitration tribunal in terms of S. 35(1) of the said Act. He stated in the said paragraph “I further say that in terms of S. 35(1) of the said Act, 1966 a teacher must hold a post but the petitioner after his retirement did not hold any position under the University.” On that ground it appear his application for reference was turned down. It is pointed out to me on behalf of the University that opinion of the Legal Remembrance was taken in this matter and the University acted accordingly. 11. Considering all these aspects of the matter and looking to the exhibits and the contentions of the University, I do not think I should go into the merit of the case whether to grant gratuity or not to the petitioner as claimed by him for the reasons as stated hereinafter. 12. Section 2(18) of the Calcutta University Act, 1966 has been referred to deny the petitioners request to refer the matter to a Tribunal as contemplated under S. 35(1) of the said Act. The refusal to refer the matter to the Tribunal in accordance with the provisions of the said section was said to be based on the reasons that on retirement Dr. The refusal to refer the matter to the Tribunal in accordance with the provisions of the said section was said to be based on the reasons that on retirement Dr. Chakaborty has ceased to be a professor holding the teaching post and therefore the provisions of that section (which can give a right to Dr. Chakraborty) cannot be attracted. 13. According to the University a dispute could have been referred to the Tribunal had it been raised during the tenure of his service or such a request would have been made when he was still a teacher but as the definition of ‘teacher’ as stated under S. 2(18) contemplates that the person referring the dispute to Arbitration Tribunal must be holding the post as a Professor at the time when he was referring the dispute, the petitioner could not invoke the provision of S. 35(1) of the Calcutta University Act, 1966 as at that time of reference he had already ceased to be a teacher. 14. It is rather unfortunate that such an interpretation could be given which was accepted by the University. It has stayed and delayed the matter for long six years I cannot reconcile with the interpretation giving by the University that in such a similar situation a person raising the dispute (as in this case) would be disentitled to refer the dispute under the provisions of S. 35(1) of the Calcutta University Act of 1966. Every Act must be construed in a way so that a beneficial and reasonable construction can be given in giving effect to the same. True, S. 2(18) says that teacher means a professor holding a teaching post but a close scrutiny and consideration if given to S. 35(1), it would be quite clear that whole idea was that a professor retired or existing can refer the matter to a Tribunal for any dispute which arose when he was a professor that is to say during the tenure of his professorship or dispute must relate to any matter relating to his appointment as a professor or any matter relating to the condition of service as a professor. If such a construction is not given this section is rendered less meaningful. If such a construction is not given this section is rendered less meaningful. On a general conspectus of the said section if such a construction is not given, the whole section becomes narrow, limited and somewhat nugatory because in most of the cases question of disputes are likely to arise when a professor retires. The question of gratuity, payment of provident fund, leave salary or construction of the terms of employment present themselves as major issues when question of final payment on retirement comes up. If those things are excluded and if a professor is asked to have recourse to the court of law for settlement of such dispute, the object of S. 35(1) becomes frustrated and the very object for which it is enacted loses its meaning and purpose I may refer Maxwell on “The Interpretation of Statute.” 12th Ed, page 92 to support the contention. It is observed in Maxwell “where the usual meaning of the words falls short of the object of the legislative the more extended meaning may be attributed to them. If they are fairly susceptible of it” In this case one can very much see what was the object of the section; it was indisputably for setting the dispute of the teachers by tribunal without resorting to the court of law. The dispute was to be qua teacher which relates to a dispute during his tenure Maxwell in the said further observes at the same page “Judges of curse will not supply omission but where they are faced with a choice between a wide meaning which carries out what appears to have been the object of the legislature more fully, and a narrow meaning which carries it out less fully or not at all, they will often choose the former.” The object of the legislature would be more effectively fulfilled if the wider meaning is given to carry out the real object. It cannot be apposite that after his retirement of the teacher if a dispute arises with reference to a matter when he was a teacher S. 35(1) will fail to be operative. It is common knowledge specially dispute regarding matter of final payment of various dues arises after one retires when they want to settle the score finally. It cannot be apposite that after his retirement of the teacher if a dispute arises with reference to a matter when he was a teacher S. 35(1) will fail to be operative. It is common knowledge specially dispute regarding matter of final payment of various dues arises after one retires when they want to settle the score finally. To exclude such cases is to give a very narrow and impractical meaning of the arbitration clause as provided under S. 35(1) of the said Act. Moreover in order to make the first two lines of S. 35(1) of the Act fees from ambiguity it must be read in a way that the dispute between the University and teacher holding a post must mean the dispute is referable to a time when the teacher was holding the post that is to say during his tenure as a teacher without that meaning the provision contained in S. 35(1) of Calcutta University Act, 1966 cannot be freed from ambiguity Mr. Pal raised a contention that other three teachers placed in the same situation did get the gratuity. This matter can be decided by the tribunal because in order to arbitrate upon the dispute, that question too is also bound to come up before the tribunal. 15. According to Maxwell (page 93-94) “the fact that a section is clearly designed to afford relief may incline the court to construe it more benevolently then it might a less obviously remedial enactment.” At page 96 of the said edition it is observed by Maxwell “it is said to be the duty of the Judge to make such construction of a statute as shall suppress the mischief and advance the remedy. In my view, the purpose of the provision of the said section would be frustrated if such a restricted meaning is given to it. It cannot mean that a person must be in service at the time of reference of the dispute. It will suffice if the dispute relates to a matter during the tenure of his service. I think, the attitude of the Calcutta University in my view was unsustainable and it should have acceded to the request of the petitioner to refer the matter to a tribunal. It will suffice if the dispute relates to a matter during the tenure of his service. I think, the attitude of the Calcutta University in my view was unsustainable and it should have acceded to the request of the petitioner to refer the matter to a tribunal. Refusal to do it was based on wrong assessment and interpretation of the section and I regret to say for that rigid attitude of the University the petitioner was deprived of his right to referring the matter to the tribunal for his claim resorting to the litigation. He behaved honourably but to the decided by the tribunal. The University was clearly at wrong not to refer this matter to a tribunal although S. 35(1) for all inters and purposes contemplated such reference. 16. Under these circumstances, the whole matter should be reviewed again in the light of S. 35(1) of the Calcutta University Act, 1966. The order as passed by the Finance Committee accepted by the Senate referred to in paragraph (b) of the petitioner is hereby quashed and rule ought to be made absolute to that extent. 17. On such above consideration I make the absolute and I hold that the writ of mandamus be issued quashing the impugned decision or order dated 4th of February, 1976 of the Syndicate affirming the decision of the Finance Committee dated 11.12.75 and the dispute that is to say, the dispute whether the petitioner is entitled to the payment of gratuity will be referred to the tribunal in accordance with the provisions of S. 35(1) of the Calcutta University Act, 1966. The petitioner will nominate one member in course of six weeks from dated and Syndicate will nominate its member within the same period. The tribunal will consider and decide this matter in decide this matter in course of three months from the date of such nomination in accordance with the provisions of law and rules. 18. Matter is disposed of accordingly. As the matter could have best decided long ago if the dispute where referred to Tribunal when the petitioner requested the university to do so and being baffled as he was compelled to resort to initite this proceeding and had to fact all the troubles and waiting as a consequence. I think he is entitled to the costs and I assess the court at 25 Gms. I think he is entitled to the costs and I assess the court at 25 Gms. which will be paid by the University in course of three months from date. Rule made absolute Order passed by Finance Committee accepted by Senate, quashed ; dispute to be referred to Tribunal.