POORNIMA M. SHAH v. GUJARAT STREE KELVANI MANDAL — 1985 DIGILAW 324 (GUJ)

S. A. SHAH, J. ( 1 ) IN this petition interesting question regarding jurisdiction of the Gujarat Affiliated Colleges Services Tribunal (hereinafter referred to as the Tribunal) arises for decision. ( 2 ) THE petitioner who was the Principal of the Gujarat Stree Kelvani Mandal Ahmedabad a College affiliated to the Gujarat University under the Gujarat Affiliated Colleges Services Tribunal Act 1982 (hereinafter referred to as the Act) was suspended by the College authority and the decision was ratified by the Vice-Chancellor of the Gujarat University. The petitioner challenged the said decision before the Tribunal. On interpretation of sec. 14 (5) of the Act the Tribunal came to the conclusion that it had no jurisdiction to entertain and decide the application of the petitioner against her suspension and dismissed the same by its order dated 29-8-1985. Being aggrieved by the said judgment and order of Tribunal the petitioner has filed this petition. ( 3 ) MR. B. P. Tanna learned Advocate for the petitioner has raised the following contentions: (1) The Tribunal is invested with all the jurisdiction which a Civil Court has in relation to the disputes between the management and the teacher. (2) The nomenclature given to certain proceedings in appeal is merely illustrative. (3) In a case where appeal is not provided the order passed by the management can be challenged by filing an application under sec. 8 of the Act. Mr. N. J. Mehta learned Advocate for respondents Nos. 1 to 3 and Mr. S. N. Shelat. learned Advocate for Respondent No. 4 have supported the judgment of the Tribunal. ( 4 ) IN order to decide the issue of jurisdiction it is necessary to refer to the bare facts of the case. According to the petitioner she was duly selected by the Selection Committee to the post of Principal on 25-6-1984. She was on probation for one year and that probation period came to an end on 26-6-1985. The management appears to have appointed inquiry to find out the suitability of the petitioner as Principal. At present we are not concerned with the inquiry made by the management. However on 1-7-1985 the petitioner was suspended and an order of suspension was communicated to the petitioner on 5-7-1985. The petitioner challenged the said order of suspension before the Tribunal immediately by way of Application No. 39 of 1985 and also prayed for interim relief. At present we are not concerned with the inquiry made by the management. However on 1-7-1985 the petitioner was suspended and an order of suspension was communicated to the petitioner on 5-7-1985. The petitioner challenged the said order of suspension before the Tribunal immediately by way of Application No. 39 of 1985 and also prayed for interim relief. The same was kept pending since the vice-Chancellor had yet to take a decision whether to ratify or not the order of suspension. According to the petitioner the vice-Chancellor took a decision on 8-8-1985 and ratified the suspension order. After some amendments were made in the application the same was heard by the Tribunal and came to the conclusion that it had no jurisdiction to entertain the said application. ( 5 ) IN order to appreciate the rival contentions of the parties it will be necessary to refer to the scheme of the Act. The preamble of the Act reads:"an Act to provide for the constitution of a Tribunal for the purpose of determining disputes relating to conditions of service of the members of the teaching other academic and non-teaching staff of affiliated colleges in the State 9f Gujarat for procedure for imposition of penalty on any such member and for matters connected therewith". Sec. 7 of the Act defines jurisdiction of the Tribunal to entertain and decide disputes referred to in sec. 8 all suits and proceedings transferred to it under sub-sec. (2) of sec. 13 and appeals made under sub-sec. (6) of sec 14 of the Act. So the Tribunal has jurisdiction to entertain and decide the disputes referred to in sec. 8 of the Act as well as the appeals made under sub-sec. (6) of sec. 14 of the Act and the transferred proceedings with which we are not concerned at present. In other words future jurisdiction of the Tribunal consists of two parts viz. (1) all the disputes referred to by the parties under sec. 8 of the Act and (2) appeals under sec. 14 (6) of the Act. In the aforesaid view of the matter we have only to refer to secs. 8 and 14 of the Act. Sec. 8 of the Act reads: "where there is any dispute between the Manager of a college and any college employee which is connected with the conditions of service of such college employee the Manager or. In the aforesaid view of the matter we have only to refer to secs. 8 and 14 of the Act. Sec. 8 of the Act reads: "where there is any dispute between the Manager of a college and any college employee which is connected with the conditions of service of such college employee the Manager or. as the case may be the college employee may make an application to the Tribunal for the decision of the dispute". Sec. 14 (6) of the Act only pertains to a dispute arising between the Management and the employee in respect of departmental inquiry regarding dismissal removal or reduction in rank of an employee. In such a case there is a further provision that as a result of such departmental inquiry any action is proposed by the Management is to be approved by the vice-Chancellor of the concerned University. It may happen that the vice-Chancellor may or may not approve the proposed action and in that case either the management or the employee concerned can file an appeal. ( 6 ) THESE are the statutory provisions which are taken in to consideration by the Tribunal. But there are some other relevant provisions which have also some bearing on the issue regarding jurisdiction of the Tribunal. The said provisions are secs. 13 (1) and 18 of the Act. Sec. 13 (1) of the Act reads:"13 No Civil Court shall have jurisdiction to settle decide or deal with any question which is by or under this Act required to be settled decided or dealt with by the Tribunal". Sec. 18 of the Act reads:"18 Savings. (1) Nothing contained in clause (b) of sub-sec. (1) and sub-secs. (2) (3 ). (5) and (6) of sec. 14 and sec. 15 shall apply to any educational institution established and administered by a minority whether based on religion or language. (2) Nothing in this Act shall apply to employees of a college owned by Government" now when we interpret the relevant provisions of sec. 14 (5) of the Act which gives power of suspension to the College one should not lose sight of the provisions of sec. 18 of the Act under which approval of the vice-Chancellor as required under sec. 14 (1) (b) and sec. 14 (5) of the Act will not be applicable to the minority institutions. 14 (5) of the Act which gives power of suspension to the College one should not lose sight of the provisions of sec. 18 of the Act under which approval of the vice-Chancellor as required under sec. 14 (1) (b) and sec. 14 (5) of the Act will not be applicable to the minority institutions. Question then arises that if the provisions regarding the approval of the vicechancellor are not applicable to the minority institution whether in such a case jurisdiction of the Tribunal is taken away ? Because in interpreting a particular section the interpretation what the Court gives would be applicable to both types of cases viz. cases arising in a college which is a minority college and in college which is not a minority college. This is material because the Tribunal has relied upon the approval of the vice-Chancellor under sec. 14 (1) (b) of the Act and the ratification of the vice-Chancellor under sec. 14 (5) of the Act in determining the jurisdiction of the Tribunal. ( 7 ) THE Tribunal in determining the issue of jurisdiction against the petitioner has relied upon three circumstances viz. (1) the Scheme under sec. 14 5) of the Act which gives power to the Manager of the College to suspend an employee is a self-contained scheme and since that scheme has not provided any appeal to the Tribunal the Tribunal has no jurisdiction; (2) The Tribunal has reiterated its opinion on the interpretation of sec. 14 of the Act itself observing that in a case of dismissal removal or reduction in rank when action is approved by the vice-Chancellor under the provisions of sub-sec. (6) of sec. 14 of the Act an appeal has been provided to the Tribunal by an aggrieved person while in the same section there is no provision if suspension is resorted to under sub sec. (5) of sec. 14 of the Act and therefore according to the Tribunal appeal to the Tribunal is excluded; and (3) the Petitioner had ample opportunity before the vice-Chancellor to challenge the order of suspension and the vice-Chancellor having ratified the action of the management the Statute has not provided appeal against such ratification; whereas in a case of dismissal removal or reduction in rank if approval is or is not given by the vice-Chancellor appeal has been specifically provided. According to the Tribunal in view of the provisions of approval and/or ratification the petitioner had opportunity of adjudication before an authority other than the Management and in presence of appeal in one case and absence of such provision in another case (case of suspension) according to the Tribunal it leads to an inference that the Legislature has deliberately not granted the right of appeal in case of suspension. ( 8 ) IN my opinion aforesaid reasoning of the Tribunal overlooks the Scheme read with the preamble and other provisions of the Act. The learned Counsels appearing before the Tribunal appear not to have cited certain provisions of the Act which have relevance to determine the jurisdiction of the Tribunal. It cannot be disputed that when an order of suspension is passed a civil right of the employee is affected. He will not be entitled to discharge his duty as well as he will not be entitled to full salary. His reputation in the society will also be affected. Therefore it can be said that his civil right is affected by such order and if the order is illegal mala fide or without jurisdiction he must be provided with a remedy either in a Civil Court Tribunal or any other appropriate forum. ( 9 ) MR. N. J. Mehta and Mr. S. N. Shelat for the respondents are not disputing that by passing an order of suspension there is no encroachment upon the rights of the petitioner. The petitioners right has been prejudicially affected and if the order is bad on any of the aforesaid grounds he must have the remedy because we have adopted by Constitution a rule of law and arbitrariness is considered to be the sworn enemy under Article 14 of the Constitution. The learned Advocates for the respondents could not dispute that prior to the coming into force of the Act the petitioner had the remedy in a Civil Court. ( 10 ) NOW under the Scheme of the Act the jurisdiction in respect of the dispute regarding conditions of service between the management and the employee has been taken away from the Civil Court and vested in the Tribunal so much so that even pending disputes are required to be transferred for adjudication of the Tribunal. In those pending disputes there might be disputes regarding the challenge to the suspension orders. In those pending disputes there might be disputes regarding the challenge to the suspension orders. If the Tribunal is given full jurisdiction in respect of the dispute regarding conditions of service of the employees under sec. 7 of the Act and if the Tribunal is made the exclusive authority in other words if the Tribunal is conferred exclusive jurisdiction then how can the Tribunal deny adjudication if a very essential right to do service and to get full emoluments is taken away. In other words if the contract of service in which the petitioner is employed is suspended even for the time being he cannot have any remedy before the Tribunal. It is not disputed that by passing the order of suspension conditions of service of the petitioners are not affected or that there is no dispute in respect of conditions of service between the management and the employee. ( 11 ) IT therefore follows that if there is dispute between the management and the employee regarding conditions of service it must be decided by the Tribunal whether such disputes are called to be disputes for which applications are required to be made or the disputes in which nomenclature of appeal is given. The word `appeal used in sec. 14 of the Act in my opinion is merely a nomenclature in respect of the disputes regarding dismissal removal or reduction in rank because in all cases approval of the vice-Chancellor is not necessary e. g. if dismissal removal or reduction in rank is inflicted by the management upon the minority college provisions regarding approval are not attracted and therefore there must be another adjudication by the vice-Chancellor. Similarly if an employee of minority college is suspended then the ratification of the vice-Chancellor is not necessary and therefore there is no adjudication. When such is the position how can one say that there is any appeal when there is no adjudication by any other authority ? Nomenclature appeal is given not because the vice Chancellor intervenes but because in case of dismissal removal or reduction in rank a statutory domestic inquiry is contemplated and as a result of the statutory domestic inquiry the management has to give a decision which is known in service jurisprudence as a decision by the domestic Tribunal. Nomenclature appeal is given not because the vice Chancellor intervenes but because in case of dismissal removal or reduction in rank a statutory domestic inquiry is contemplated and as a result of the statutory domestic inquiry the management has to give a decision which is known in service jurisprudence as a decision by the domestic Tribunal. But in a case of suspension such inquiry is not contemplated and suspension resorted to by the management when a departmental inquiry is contemplated and if there are grounds which require that presence of the delinquent will hamper the inquiry or his absence will be necessary for the equitable progress of the inquiry. In such case if the decision of the management is without jurisdictions illegal or mala fide the affected party can raise a dispute before the adjudicating authority which is the Tribunal in this case. ( 12 ) AGAIN if we look to the provisions of sub-sec. (4) of sec. 14 of the Act the Management had been given power to impose penalties other then the aforesaid major penalties after giving reasonable opportunity of being heard to the concerned employee. No appeal has been provided under sec 14 of the Act. Will this mean that the concerned employee on whom punishments other than the three punishments have been inflicted cannot move the Tribunal by raising a dispute under sec. 8 of the Act because there is no provision of appeal under sec. 14 of the Act ? The answer is he can because a penalty inflicted upon on employee affects the conditions of service to his prejudice and he can make an application. ( 13 ) THE Advocates for the respondents agree that a concerned employee on whom punishment other than major punishment is inflicted can file an application though there is no provision of appeal under sec. 14 of the Act. Therefore when sub-secs. (4) and (5) of sec. 14 of the Act are parts of the same scheme of sec. 14 of the Act and if no appeal is provided for minor penalties under sub-sec. (4) and if an application can be made to the Tribunal on what parity of reasoning it can be said that so far as sub-sec. (5) of sec. 14 of the Act is concerned. application cannot be entertained by the Tribunal ? ( 14 ) NOW if we look to the Scheme of sub-sec. (4) and if an application can be made to the Tribunal on what parity of reasoning it can be said that so far as sub-sec. (5) of sec. 14 of the Act is concerned. application cannot be entertained by the Tribunal ? ( 14 ) NOW if we look to the Scheme of sub-sec. (1) of sec. 13 of the Act it provides that no Civil Court shall have jurisdiction to settle decide or deal with any question which is by or under the Act required to be settled decided or dealt with by the Tribunal. As soon as we come to the conclusion that question regarding suspension of an employee cannot be dealt with or decided by the Tribunal we have necessarily to arrive at a conclusion that Civil Court has jurisdiction to deal with this question. Will such a conclusion be in consonance with the scheme of the Act ? How will one co-relate the provisions of sec. 13 (1) with sec. 7 and the preamble of the Act. If we take the meaning which the Tribunal has given that it has no jurisdiction to deal with the question of suspension then necessarily we have to arrive at the conclusion that Civil Court has jurisdiction and this conclusion will go counter to the provisions of secs. 7 and 8 read with the preamble of the Act. When the Tribunal is made the sole forum for adjudication of the disputes between the management and the employees of an affiliated college such an interpretation of sec. 13 (1) of the Act would be counter to the whole scheme of the Act. The Tribunal has not considered the scheme of the Act vis-a-vis minority college where an intervention by way of approval or ratification of the vice-Chancellor is not called for. The Tribunal appears to have fallen in an error by the nomenclature of appeal given in sec. 14 of the Act. In my opinion merely because the dispute which is referred to the Tribunal for adjudication against the order of dismissal removal or reduction in rank by way of appeal jurisdiction of the Tribunal cannot be excluded in respect of other orders of the management which are detrimental to the interest of the employees and which seriously affects their conditions of service. ( 15 ) IN the aforesaid view of the matter I hold that the Tribunal had jurisdiction to deal with and decide the legality and propriety of the order of suspension passed against the petitioner. ( 16 ) IN the result the petition is allowed. The judgment and order of the Tribunal dated 29-8-1985 (Annexure A to the petition) in Application No. 39 of 1985 are hereby quashed and set aside. The Tribunal is directed to decide the said application in accordance with law in the light of the observations made above. Rule is made absolute with no order as to costs. (KMV) petition allowed. .