S. K. Shukla v. University of Allahabad — 1991 DIGILAW 1118 (ALL)

ORDER B.M. Lal, J. - This petition is directed against an order dated 13-9-1979 passed by the District Judge, Allahabad (Respondent No. 5) in exercise of his jurisdiction under S. 115, Civil Procedure Code. 2. The short facts leading to this petition are that the petitioner, who was appointed as photographer by the order of respondent No. 1, is said to have been dismissed from service by the order of Registrar dated 18-5-1968. His appeal against the said dismissal filed before the Chancellor, University of Allahabad also met the same fate. Therefore, the petitioner had to resort to the common remedy available to him by filing a civil suit against the University of Allahabad and its officers for a declaration that the order of dismissal dated 18-5-1968 is bad in law and the same be set aside. A further declaration was sought that he he deemed in service of the respondent No. 1 entitled to all emoluments admissible to him under the provisions of Allahabad University Act, 1921 amounting to Rs. 11650.16. 3. After receiving writ of summons, the University of Allahabad and its officers emerged with a plea that the suit as framed and filed was not maintainable in view of the specific provisions of S. 42 of Allahabad University Act, 1921 (here-in-after referred to as the Act). Apart from disputing the jurisdiction of the civil court, they also raised numerous pleas denying the claim of the. petitioner. 4. The trial court framed as many as seven issues. However, it preferred to decide Issue No. 2 as a preliminary issue which goes to the root of the case as to whether the suit is barred by S. 42 of the Act. 5. The trial court by its order dated 26-4-1979 reached to the conclusion that the suit as framed and filed is cognizable by the Civil Court and S. 42 of the Act is no bar to institute such a suit claiming the relief stated aforesaid. 6. Against the order dated 26-4-1979, the University of Allahabad preferred a revision before the District Judge, Allahabad, who vide its order dated 13-9-1979 set aside the order of the trial court and held that in view of the provisions of S. 42 of the Act, the suit is barred, against which the present petition had been filed. 7. 6. Against the order dated 26-4-1979, the University of Allahabad preferred a revision before the District Judge, Allahabad, who vide its order dated 13-9-1979 set aside the order of the trial court and held that in view of the provisions of S. 42 of the Act, the suit is barred, against which the present petition had been filed. 7. The only point which requires consideration in this case is whether S. 42 of the Act is an impediment in taking congnizance by the civil court. 8. The learned counsel for the petitioner contended that bar on the jurisdiction of civil court under S. 42 of the Act is confined to the sections of the University or its authorities. According to him, the Registrar being an officer of the University as specified by S. 9 of the Act, is not an authority of the University, and therefore any order passed by the Registrar is ultra vires of the power under the Act and the civil court has jurisdiction to entertain the suit. In view of the above submission, it was also contended that S. 9 of the Civil Procedure Code also does not create any bar.. On the other hand, the learned counsel appearing for the University supported the order passed by the District Judge. 9. No doubt this legal position is not disputed that a litigant has every right to invoke the jurisdiction of the civil court in approaching it by filing a suit unless cognizance by the civil court is either expressly or impliedly barred, and the suit is said to be expressly barred when it is barred by any enactment for the time being in force. In this regard it is not out of place to state here that where a special tribunal is created by the Legislature for the purpose of determining questions as to rights which are the creation of the Act, under that situation the jurisdiction of the special tribunal is exclusive save by special cases and the civil court cannot take cognizance of the such matter. In this settled proposition of law, S. 42 of the University of Allahabad Act has to be examined. In this settled proposition of law, S. 42 of the University of Allahabad Act has to be examined. S. 42 of the act reads as under : "If any question arises whether any person has been duly elected or appointed as, or is entitled to be, a member of any authority or other body of the University, or whether any decision of the University or any authority thereof is in conformity with this Act, the Statutes and the Ordinances, the matter shall be referred to the Chancellor, whose decision thereon shall be final." 10. In this connection S. 9 of the Civil Procedure Code is also relevant which reads as under : "The Courts shall subject to the provisions herein contained have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred." 11. Section 16 of the Allahabad University Act lays down the authorities of the University wherein sub-clause (7) it has been stated" such other authorities as may be declared by the statutes to be authorities of the University." 12. By referring to S. 16 of the Act, the learned counsel for the petitioner contended that in the provisions of S. 16 the Registrar figures nowhere to be an authority of the University, and therefore the impugned order passed by him dismissing the petitioner's services is not a valid order and S. 42 of the Act has no application. According to him, the cognizance taken by the civil court is proper and legal. 13. The submission made by the learned counsel is against the factual position of the case. In the counter-affidavit filed by the University it has been emphatically denied that the Registrar has passed any order dismissing the services of the petitioner. It is stated therein that it was the Vice-Chancellor, who passed the order of dismissal and the same was only communicated by the Registrar to the petitioner. In the counter-affidavit filed by the University it has been emphatically denied that the Registrar has passed any order dismissing the services of the petitioner. It is stated therein that it was the Vice-Chancellor, who passed the order of dismissal and the same was only communicated by the Registrar to the petitioner. It was also contended by the learned counsel appearing for the University that in view of S. 12 of the Act the Vice-Chancellor is the Principal, executive and academic Head of the University and it is the duty of the Vice-Chancellor to ensure faithful observance of the provisions of the Act, and therefore he possesses without prejudice to the powers of the Chancellor under S. 42 of the Act, all such powers as may be necessary in that behalf. The Vice- Chancellor also exercises general control over the affairs of the University and is responsible for due maintenance of discipline therein. Hence, the submission of the learned counsel for the petitioner that in view of the provisions of S. 16 of the Act, the Registrar or the Vice-Chancellor is not an authority of the University, has no substance. 14. A perusal of S. 42 of the Act postulates that is those cases where the order is passed by the University or by authorities of the University, the order shall be final. Now it has to be seen whether the Registrar is University or authority of the University to this effect. If provisions of S. 3 and S. 16 of the Act, are read together it will be clear that Registrar is neither University nor authority of the University, but the provisions of S. 9 reveals that the Registrar is an officer of the University as in view of S. 14 of the Act the Registrar is appointed by the Executive Council which is one of the constituents of the University. Further, if the provisions of S. 3 of the Act are gone into, it would be clear that the University is a corporate body consisting of the persons mentioned therein and is also a juristic person. S. 15 of the Act lays down that powers of the Registrar shall be prescribed by the statute and ordinance. Further, if the provisions of S. 3 of the Act are gone into, it would be clear that the University is a corporate body consisting of the persons mentioned therein and is also a juristic person. S. 15 of the Act lays down that powers of the Registrar shall be prescribed by the statute and ordinance. The learned District Judge while giving reference to Chapter XIX of the calendar for the University of Allahabad for the year 1968 reached the conclusion that Registrar may subject to the control of the Vice-Chancellor appoint, suspend, dismiss or otherwise punish the clerical staff of the University office and all actions taken in the exercise of such powers shall be reported to the Executive Council at its next meeting. This is in consonance with the provisions of S. 14 of the Act. As such the Registrar under the ordinance if exercises power of the University relating to dismissal of the clerical staff, the same would be deemed to have been exercised by virtue of the ordinance which empowers him but not in his personal capacity. Therefore, the submission made in this regard has no force besides this as observed above in the instant case the Registrar has only communicated the order of dismissal passed by the Vice-Chancellor. Consequently, S. 42 of the Act applies with full force which attaches finality to the decisions of the University. 15. Section 9 of the Civil Procedure Code empowers the civil court to take cognizance only in such suits where cognizance is either expressly or impliedly not barred. In the instant case in view of the provisions of S. 42 of the Act, the provisions of S. 9 of the Civil Procedure Code come into play barring the jurisdiction of the civil court. See AIR 1967 All 59 (FB), (Dale] v. Baro); AIR 1979 SC 1320 , (Muddada Chavanna v. Karnam Narayana); AIR 1984 SC 1714 (State of U.P. v. Mohammad Din) and AIR 1984 SC 1726 (Annemreddi Boadayya v. Lokanarapu Ramaswamy). Thus, under the provisions of S. 42 of the Act, the jurisdiction is exclusive and the civil court,cannot be take cognizance of such matter. Thus, under the provisions of S. 42 of the Act, the jurisdiction is exclusive and the civil court,cannot be take cognizance of such matter. This being the legal aspect of the case, in the opinion of this Court, the conclusion reached by the learned District Judge that in view of S. 42 of the Allahabad University Act the civil court had no jurisdiction, cannot be said to be erroneous. 16. The learned counsel for the petitioner next contended that the order dismissing the services of the petitioner is ultra vires of the powers under the Act and Statutes, as such a nullity, and therefore the civil court has jurisdiction to entertain the suit. While making this submission as discussed above, the learned counsel failed to substantiate his argument as to how the order of dismissal was a nullity. No doubt in cases where ex-facie the impugned order appears to be a nullity, in other words if the purported order (dismissal order) is no order at all, the immunity conferred by S. 42 of the Act will not protect such an order from being challenged in the civil court. 17. Before proceeding to examine as to whether the purported order is a nullity, it is necessary to consider the circumstances when the order of dismissal was passed by the authority of the University having no jurisdiction. The law on this point is settled that an order made without jurisdiction is nullity. See Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 . Before reaching to a conclusion that particular order is a nullity, the parameters set out for the same are to be seen as to whether the authority acted without jurisdiction rendering its decision a nullity. See Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 . Before reaching to a conclusion that particular order is a nullity, the parameters set out for the same are to be seen as to whether the authority acted without jurisdiction rendering its decision a nullity. While taking this into consideration whether the matters which are foreign or irrelevant to the enquiry and its final order is influenced by those matters, or whether the authority was lacking in jurisdiction to pass such an order impugned, whether the authority departed from the rules of natural justice in reaching the conclusion, whether the authority has wrongly determined the jurisdictional question of law or fact raised before it, whether the authority has passed the order without giving an opportunity of hearing to the petitioner violating the fundamental provisions of the Act and failed to take into account the matters which it is required to take into consideration and when it takes into account whether extraneous and irrelevant matters have been taken into consideration or whether the authority has acted in a bad faith, all those grounds though was not subject matter of this writ petition but while making submissions the learned counsel for the petitioner incidentally only contended that the order passed by the authority of the University is without jurisdiction. As observed above since the same has not been substantiated either by advancing arguments in this regard or by exhibiting documentary evidence, it is difficult to accept the bare submission made by the learned counsel that the impugned order is a nullity having been passed by an authority having no jurisdiction. No doubt there are cases to this effect that where the authority or tribunal acts without jurisdiction rendering its decision a nullity, notwithstanding the provisions like S. 42 of the Act that decision of the authority shall be final, the civil court is not precluded in common law to entertain the suit and redress the wrong done to the litigant. But as observed above on account of lack of material placing before this Court to reach that conclusion it is difficult to accept the submission of the learned counsel, and the submission so made in this behalf stands repelled. 18. But as observed above on account of lack of material placing before this Court to reach that conclusion it is difficult to accept the submission of the learned counsel, and the submission so made in this behalf stands repelled. 18. Lastly, by giving reference to Raja Ram Kumar v. Union of India, AIR 1988 SC 752 the learned counsel for the petitioner contended that if a right pre-existing in common law is recognised by the statute and a new statutory remedy for its enforcement provided without expressly excluding the civil court jurisdiction, then both the common .law and the statutory remedy might become concurrent remedies leaving open an element of election to the persons. This controversy raised by the learned counsel has already been discussed in Raja Ram Kumar (supra) in paragraph 9 of the judgment giving reference to Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78 and The Premier Automobiles Ltd. v. Kamlakar Shantaram, AIR 1975 SC 2238 and it is ruled that where a machinery for enforcement of the right, both the right and the remedy having been created and a finality is intended to the result of the statutory proceedings, then even in the absence of an exclusionary provisions the civil courts' jurisdiction is impliedly barred. If, however, a right pre-existing in common law is recognised by the statute and a new statutory remedy for its enforcement provided, without expressly excluding the civil court's jurisdiction, then both the common law and the statutory remedies might become concurrent remedies leaving open an element of election to the persons. In Dhulabhai's case (supra) the ex tent and on what areas and under what circumstances and conditions the civil courts' jurisdiction is preserved even where there is an express clause excluding their jurisdiction are considered, and therefore the cognizance by the civil court is either expressly or impliedly barred by any enactment for the time being in force creating special authority in the University for the purpose of determining the question as to the rights of the employees which are creation of the Act, under this situation the jurisdiction of the University conferred under S. 42 is exclusive and the contention raised by the learned counsel that both the University and the Civil Court has concurrent jurisdiction to take cognizance of the matter, has no force. 19. 19. In view of the discussions made above, this petition has no force and it is accordingly dismissed. T he shall be no order as to costs.