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SCA/10269/1999 25/ 25 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10269 of 1999
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? No
2
To be
referred to the Reporter or not ? No
3
Whether
their Lordships wish to see the fair copy of the judgment ? No
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? No
5
Whether
it is to be circulated to the civil judge ? No
=========================================================
BHAVNAGAR
UNIVERSITY - Petitioner(s)
Versus
N
K OJHA - Respondent(s)
=========================================================
Appearance
:
MR
MITUL K SHELAT for
Petitioner
PARTY-IN-PERSON for
Respondent
=========================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 23/12/2010
ORAL
JUDGMENT
The
petitioner, Bhavnagar University, has preferred this petition under
Articles 226 and 227 of the Constitution of India, assailing the
common judgment and order dated 11.08.1999, passed in Applications
Nos.5/1998 and 2/1999, by the Gujarat Universities Services
Tribunal, Ahmedabad (“the Tribunal” for short).
Briefly
stated, the relevant facts as emerging from the record are that, the
respondent – Shri N.K.Ojha, who has appeared as
party-in-person, was appointed as Deputy Executive Engineer at the
petitioner-University on 07.10.1991, on probation. The services of
the respondent were confirmed on the post of Deputy Executive
Engineer on 23.12.1992. The respondent applied for the post of
University Engineer, at the M.S.University, Baroda. The respondent
was selected and appointed on probation at M.S.University for a
period of two years, by order dated 24.06.1996. He joined services
at M.S.University on 19.07.1996. Under the provisions of the
Ordinances and Statutes framed by Bhavnagar University, more
particularly, clause (C) of Rule 8 of Ordinance 89, the respondent
was required to give notice to the petitioner-University before
leaving service. By letter dated 29.06.1996, the respondent
requested the petitioner-University to waive the requirement of
paying notice pay, and for permission to retain his lien at the
petitioner-University for two years. The request of the respondent
was considered by the Executive Council of the petitioner-University
at its meeting held on 05.07.1996, and it was resolved that the
respondent be relieved after office hours on 18.06.1996 to enable
him to join M.S.University. The lien of the respondent was
maintained for two years with effect from 18.06.1996. However, the
request for waiver of notice pay was not acceded to, and the
respondent was directed to deposit notice pay, equal to salary for
two months and twelve days. In view of the fact that the respondent
had intimated the petitioner-University regarding his joining the
M.S.University at Baroda on 29.06.1996, and as he was relieved with
effect from 18.07.1996, salary for 18 days was not deducted. In
response to the Resolution passed by the Executive Council, as
aforesaid, the respondent deposited an amount of Rs.6,000/- towards
notice pay, on 18.07.1996. After joining M.S.University, Baroda, the
respondent, vide letter dated 20.08.1997, requested the
petitioner-University to transfer the total amount of his General
Provident Fund (“GPF”) to M.S.University, Baroda. In
response to this letter, the petitioner-University wrote letter
dated 28.09.1997, asking the respondent to clarify whether he did
not want to return to the petitioner-University and wanted to have
his lien terminated. Ultimately, the lien of the respondent was
terminated on 10.11.1997. The respondent came to be confirmed as
University Engineer at M.S.University, on 30.05.1998.
The
respondent filed application No.5/1998 before the Tribunal,
challenging the termination of lien and demanding refund of the
amount of Rs.6,000/- paid by him towards notice pay. The said
application was permitted to be withdrawn unconditionally, by order
dated 28.12.1998 of the Tribunal, with liberty to approach the
Tribunal in case of difficulty. The respondent again made a
representation to the Executive Council of the petitioner-University
for waiver of notice pay. This request did not find favour with the
Executive Council, and was rejected. In view of the withdrawal of
the application before the Tribunal, the services of the new
incumbent holding the post of Engineer in the petitioner-University
were confirmed by the Executive Council.
The
respondent preferred an application before the Tribunal for revival
of his earlier application No.5/1998 which was allowed. At the same
time, the respondent preferred another application, being
Application No.2/1999 challenging the decision of the Executive
Council whereby, his request for waiver of notice pay was rejected.
Both the applications were heard together and decided by the
impugned judgment. The Tribunal, by the said judgment and order
dated 11.08.1999, allowed the applications of the respondent and
directed the petitioner-University to refund the amount of notice
pay. Further, it imposed costs, quantified at Rs.14,000/- upon the
petitioner-University. Aggrieved by the said judgment, the
petitioner-University has approached this Court, by way of the
present petition.
Mr.Mitul
K.Shelat, learned advocate for the petitioner, has made elaborate
submissions, to the following effect:
(i) The
action of the petitioner-University in demanding notice pay of two
months and twelve days from the respondent is wholly justified and is
in accordance with the provisions of Clause (C) of Rule 8 of
Ordinance 89, which stipulates that no employee shall leave the
employment of the University without giving three months’ notice, and
in the event such notice is not given, the University will be
entitled to claim the amount of basic-pay that is payable for the
period of notice. The University is governed by its statutes and
Ordinances and it was incumbent upon the respondent to pay the amount
of notice pay. The University has taken a lenient view and directed
the respondent to pay notice pay for a period of two months and
twelve days only, considering the date on which the respondent
informed the University regarding his appointment in M.S.University,
Baroda. Having paid an amount of Rs.6,000/- towards notice pay for
two months and twelve days on 18.07.1996, and having joined at
M.S.University, Baroda, the respondent is not at all justified in
demanding refund of this amount. The impugned judgment of the
Tribunal, whereby the amount of notice pay has been directed to be
refunded to the respondent is erroneous, as it has been passed
without taking into consideration the relevant provisions of the
Ordinance of the petitioner-University. The Tribunal has wrongly
permitted revival of the earlier application of the respondent, in
spite of unconditional withdrawal, and has passed the impugned order,
without proper appreciation of facts or law. While passing the
impugned order, the Tribunal has completely lost sight of the fact
that demand of notice pay is the right of the employer, in the event
that the employee leaves its services without giving adequate notice.
The employer has to make arrangements to fill up the vacancy created
by the employee immediately in order to run its affairs. In any case,
the relevant provisions of the Ordinance are clear and explicit and
the action of the petitioner-University, being in accordance with the
said Ordinance, cannot be faulted. There is no justification for
ordering refund of notice pay by the Tribunal.
(ii)The
lien of the respondent was terminated with effect from 10.11.1997, as
it was evident from the request of the respondent for transfer of the
amount of GPF to M.S.University, Baroda, that he did not intend to
return to the petitioner-University. The petitioner-University had
specifically sought clarification from the respondent to the effect
whether he is not desirous of returning to the petitioner-University
and wants his lien to be terminated. The request of the respondent
for transfer of GPF was finally acceded to by the
petitioner-University. The lien of the respondent was terminated, and
he was informed accordingly. It is not the case of the respondent
that he wanted to return to the petitioner-University. He has himself
demanded transfer of the GPF amount. Had the respondent wanted to
return during the period of lien, the petitioner-University was bound
to accommodate him. The respondent was confirmed in M.S.University,
Baroda, on 30.05.1998, as University Engineer. On that date, the lien
of the respondent has automatically came to an end. The
petitioner-University has terminated the lien of the respondent under
the provisions of Section 11, sub-section 4, of the Bhavnagar
University Act, 1978 (“the Act” for short) whereby the
Vice Chancellor has been granted powers to take immediate action in
case of an emergency. The said action has been ratified by the
Executive Council of the petitioner-University. The Tribunal fell
into error in not taking into consideration the fact that the lien of
the respondent in the petitioner-University had automatically come to
an end, on his confirmation at M.S.University, Baroda.
(iii)It
is also not the case of the respondent at any stage that prejudice
has been caused to him by termination of lien. In fact, no prejudice
has been caused to respondent, who stood confirmed at M.S.University
on 30.05.1998. This aspect has been ignored and overlooked by the
Tribunal while passing the impugned judgment. The action of the
petitioner-University is bona fide, and in accordance with law.
(iv)The
Tribunal could not have examined the matter for award of damages/
compensation as has been done by it, on the erroneous premise that
it is a Court of equity. The Tribunal has limited jurisdiction which
is specifically delineated in Section 8 of the Gujarat University
Service Tribunal Act, 1983 (“the Service Tribunal Act”
for short). The impugned judgment makes it clear that the Tribunal
has awarded damages/compensation to the respondent for the alleged
mental agony that he suffered, though in the form of costs. As the
Tribunal has limited jurisdiction, this could not have been done, and
resultantly, the direction to the petitioner-University to deposit an
amount of Rs.14,000/- deserves to be quashed and set aside.
(v) The
Tribunal has proceeded on a wrong premise that the action of the Vice
Chancellor in terminating the lien of the respondent has not been
ratified by the Executive Council. The respondent has been informed
regarding termination of lien. The said action has been ratified by
the Executive Council in its meeting on 21.11.1997 when all the
issues pertaining to the respondent were discussed in detail.
(vi)The
Tribunal has erroneously linked the issues of notice pay and lien,
which have no relation to each other and has passed the impugned
order by making certain observations regarding the Vice Chancellor of
the petitioner-University and the alleged conduct of the University,
which are not at all warranted, on the facts and in the circumstances
of the case.
Opposing
the petition, Mr.N.K.Ojha, the respondent party-in-person, has made
detailed submissions, the gist of which is as follows:
I. The
respondent was not supposed to pay notice pay to the
petitioner-University as his lien was sanctioned. As the said lien
was prematurely terminated he is entitled to claim refund of notice
pay. The Tribunal has rightly ordered the refund of notice pay
equivalent to 48 days and awarded Rs.14,000/- as costs, damages and
compensation as the respondent has been running from pillar to post,
for the past twelve years.
II. Lien
was granted with effect from 19.07.1996 for two years and was wrongly
terminated on 10.11.1997 by the Vice Chancellor of the
petitioner-University. This action was not brought to the notice of
the Executive Council. Initially, the post occupied by the respondent
in the petitioner-University, which fell vacant on his joining
M.S.University, was advertised as a lien post; however, in the
subsequent advertisement, the word `lien’ was missing. The new
incumbent was appointed on 10.10.1997 and confirmed on 21.10.1997,
when the lien of the respondent was terminated.
III.There
was no justification for exercise of emergency powers under Section
11(4)(a) of the Act by the Vice Chancellor, for terminating the lien
of the respondent, as no emergent situation existed for invocation of
such powers. There is no document on record to show that the decision
to terminate the lien by the Vice Chancellor was brought to the
notice of the Executive Council. The respondent has not been
informed regarding termination of his lien, otherwise, he would have
approached the Executive Council within the stipulated period of
time. Therefore, there is a violation of the principles of natural
justice. There is also flagrant violation of the Act by the
petitioner-University; for which reason, the respondent is engaged in
litigation with the University for the last twelve years. Moreover,
the respondent has faced a great deal of harassment, inconvenience,
pain and mental agony due to premature termination of lien by the
petitioner-University.
IV. The
petitioner-University has tried to mislead the Tribunal and now it is
trying to mislead this Court, as well. A false affidavit has been
filed by the University by stating that the action of termination of
lien by the Vice Chancellor was brought to the notice of the
Executive Council. The action of the University in terminating the
lien of the respondent is, therefore, null and void because the
relevant provisions of the Act have not been followed, inasmuch as
there was no emergency to terminate the lien of the respondent, and
the matter has not been reported to the Executive Council. Therefore,
the respondent is entitled for refund of notice pay and costs as has
been rightly ordered, by the Tribunal.
V. When
the lien of the respondent was terminated, he was still not confirmed
in M.S.University, Baroda, therefore, prejudice has been caused to
him. The respondent had requested for transfer of GPF to
M.S.University from the petitioner-University because he had still
not made up his mind. However, the respondent was confirmed in
M.S.University on 30.05.1998.
I
have heard Mr.Mitul K.Shelat, learned advocate for the petitioner
and Mr.N.K.Ojha, respondent party-in-person, at length and in great
detail, perused the averments made in the petition as well as the
documents on record.
Regarding
the issue of notice pay, the provisions of clause (C) of Rule 8 of
Ordinance 89 of the petitioner-University are relevant, and are
reproduced hereinbelow:
“(C) No
employee shall leave the employment of the college without giving
three months notice if he is confirmed or one months notice if he is
on probation. In case, however, the employee does not given the
required notice the management will be entitled to claim from him an
amount not exceeding the amount of basic pay as may be payable to
him for the period of notice. Shorter notice than above may be
accepted by the management at its discretion.”
As
is clear from this provision, an employee who does not give three
months’ notice before leaving the employment of the University, is
bound to pay an amount not exceeding the amount of basic pay as may
be payable to him for the period of notice, to the University.
Discretion has been vested in the University to accept a shorter
period of notice than the period of three months. In the present
case, the respondent has, by letter dated 29.06.1996, requested the
University for waiver of notice pay. When an employee leaves the
employment of the employer without adequate notice, the employer is
put to some inconvenience due to the sudden vacancy. The concept of
notice pay relates to the act of leaving services by the employee
all of a sudden, without adequate notice. In order to indemnify the
loss suffered by the employer and as a token of mitigation of the
inconvenience caused due to the unexpected act of leaving, it is
incumbent upon the employee to pay the amount of notice pay, as
stipulated. In the present case, the Ordinance of the
petitioner-University specifically provides for payment of notice
pay by the employee. The respondent was required to give three
months’ notice before leaving the services of the
petitioner-University. However, he gave only eighteen days’ notice.
Therefore, eighteen days’ salary was not deducted and he was
directed to deposit an amount of Rs.6,000/- as notice pay, equal to
salary for two months and twelve days. The respondent did so on
18.07.1996.
There
is no provision in the Ordinance for claiming refund of notice pay.
The Tribunal, in the impugned judgment, has totally overlooked and
ignored the provisions of clause (C) of Rule 8 of Ordinance 89,
which deals with notice pay, and in doing so it has arrived at an
erroneous conclusion, contrary to the provisions of the Ordinance.
From
perusal of the impugned judgment of the Tribunal, it is evident that
the Tribunal has wrongly linked the issue of notice pay to the issue
of termination of lien. It was incumbent upon the respondent to pay
notice pay on leaving the services of the petitioner-University as
per provisions of the Ordinance. This act is prior in point of time
than termination of lien and has no connection with it. The
obligation of paying notice pay arises due to leaving of services
without adequate notice. As the respondent has left the services of
the petitioner-University without giving three months’ prior notice
as required by Clause (C) of Rule 8 of Ordinance 89, the provisions
thereof apply squarely to him and no fault can be found with the
University in demanding notice pay from him. The issue of notice pay
cannot be linked with termination of lien, as has been done by the
Tribunal in the impugned judgment. The direction of the Tribunal to
the petitioner-University to refund the amount of notice pay is,
therefore, wholly justified.
In
order to understand the concept of lien, it would be helpful to
advert to the relevant legal position in this regard. In Ramlal
Khurana (Dead) By LRs. v. State of Punjab and Others – (1989)4
SCC 99,
it has been held that:
“8. …….Lien
is not a word of art. It just connotes the right of a civil servant
to hold the post substantively to which he is appointed. Generally
when a person with a lien
against a post is appointed substantively to another post, he
acquires a lien against the latter post. Then the lien against his
previous post automatically disappears. The principle being that no
government servant can have simultaneously two liens against two
posts in two different cadres. It is well accepted
principle of service jurisprudence.”
In
State of Rajasthan And Another v. S.N.Tiwari And Others –
(2009)4 SCC 700,
the Supreme Court has held:
“17. It
is very well settled that when a person with a lien against the post
is appointed substantively to another post, only then he acquires a
lien against the latter post. Then and then alone the lien against
the previous post disappears. Lien connotes the right of a civil
servant to hold the post substantively to which he is appointed. The
lien of a government employee over the previous post ends if he is
appointed to another permanent post on permanent basis. In such a
case the lien of the employee shifts to the new permanent post. It
may not require a formal termination of lien over the previous
permanent post.
18. This
Court in Ramlal Khurana v. State of Punjab [(1989)4 SCC 99] observed
that: (SCC p.102, para 8)
“”8. …Lien
is not a word of art. It just connotes the right of a civil servant
to hold the post substantively to which he is appointed.””
19. The
term “lien” comes from the Latin term “ligament”
meaning “binding”. The meaning of lien in service law is
different from other meanings in the context of contract, common
law, equity, etc. The lien of a government employee in service law
is the right of the government employee to hold a permanent post
substantively to which he has been permanently appointed. (See
Triveni Shankar Saxena v. State of U.P. – 1992 Supp(1) SCC 524)”
From
the above enunciation of law, it is clear that when a person with a
lien against a post is substantively appointed to another post, the
lien that he held with regard to his former post disappears, and he
acquires a lien against the latter post. In the present case, the
petitioner-University permitted the respondent to retain lien for
two years with effect from 18.07.1996 i.e. upto 19.07.1998. The
respondent joined M.S.University, Baroda, on 19.07.1996. (24.06.1996
as per the arguments in rejoinder and 19.07.1996 as per the
petition). The lien of the respondent was terminated on 10.11.1997.
The respondent was confirmed as University Engineer in
M.S.University on 30.05.1998. It is an admitted position that the
respondent wrote letter dated 20.08.1997 to the
petitioner-University, requesting that his GPF be transferred to
M.S.University, Baroda. This communication is annexed as Annexure-M
to the reply filed by the respondent. In response thereto, by letter
dated 29.09.1997, the petitioner-University informed the respondent
that he had lien for a period of two years from 19.07.1996 and only
if he was not desirous of returning to the petitioner-University,
could the amount of GPF be transferred to M.S.University, as per
Rules. The respondent was specifically asked to clarify whether he
is desirous of returning to the petitioner-University, or not. There
is nothing on record to indicate what clarification, if any, was
given by the respondent. Finally, the amount of GPF of the
respondent was transferred to M.S.University, Baroda, as per his
request. It is not the case of the respondent that he desired to
return to the petitioner-University at any stage. The action of the
petitioner-University in terminating the lien of the respondent
prematurely, appears to have been motivated by his request for
transfer of his amount of GPF to M.S.University, Baroda. Had the
respondent desired to return to petitioner-University, he could have
made such a request upto 30.05.1998 (the date on which he was
confirmed at M.S.University). At no stage has the respondent
approached the petitioner-University with such a request. From this,
it is clear that he had no intention of returning to the
petitioner-University. Upon his confirmation at M.S.University on
30.05.1998, the respondent automatically lost his lien in the
petitioner-University and acquired lien at M.S.University.
The
contention of the respondent that the petitioner-University did not
inform him regarding termination of lien is not borne out from the
record. Communication dated 26.11.1997 addressed by the
petitioner-University to the respondent (annexed as Annexure-S to
the reply filed by the respondent) shows that the respondent has
been informed that his lien has been terminated on 10.11.1997. The
respondent has further submitted that had he been informed that his
lien was terminated by the Vice Chancellor, in exercise of
provisions under the provisions of Section 11, sub-section 4 of the
Bhavnagar Universities Act, 1978, he could have approached the
Executive Council. This submission carries no weight, as it was open
to him to approach the Executive Council, in any case, had he been
aggrieved by such termination, at the relevant point of time.
The
action of the petitioner-University in terminating the lien of the
respondent prematurely can, at the most, be termed to be irregular,
though it appears to be motivated by the demand of the respondent
for transfer of his GPF amount. In the circumstances of the case,
the said action would not amount to an illegality or a justification
for refund of notice pay and imposition of costs on the
petitioner-University in the absence of any material on record to
show that prejudice has been caused to the respondent.
Regarding
the contention raised by the respondent that the decision of the
Vice Chancellor in terminating his lien in exercise of powers under
section 11(4)(a) of the Act has not been ratified by the Executive
Council, there is a specific averment in the affidavit-in-rejoinder
that the Executive Council of the petitioner-University discussed
the case of the respondent in detail in its meeting held on
21.12.1998. The extract of the Minutes of the meeting of the
Executive Council dated 21.12.1998 have been annexed at running
pages 147 to 149. The Minutes show that a detailed discussion
regarding all the issues arising in the case of the respondent has
taken place at the said meeting. This shows that the Executive
Council had been apprised of all issues pertaining to the case of
the respondent. Merely because there is no specific mention of lien,
it cannot be assumed that the Executive Council was unaware of the
decision in this regard. The contention of the respondent that a
false affidavit has been filed by the petitioner-University cannot
be accepted.
The
provisions of Section 11 of the Act confer discretion upon the Vice
Chancellor to take immediate action, if he finds that there are
reasonable grounds to believe that an emergent situation has arisen,
requiring such action to be taken. It is for the Vice Chancellor to
decide whether, or not, to take such action. The respondent cannot
take it upon himself to decide whether such power should have been
used or not. The Vice Chancellor of the petitioner-University has
acted within the bounds of discretion vested in him as per the
Section and there is evidence to show that the case of the
respondent was placed before the Executive Council and all issues
pertaining to the same were discussed. It cannot, therefore, be said
that there is a violation of the provisions of the Act, rendering
the decision of termination of lien invalid.
Regarding
the submission of the learned counsel for the petitioner-University
that the Tribunal has wrongly assumed “equity jurisdiction”
while imposing compensation/ damages/ costs upon the
petitioner-University, the provisions of Section 8 of the Gujarat
University Service Tribunal Act, 1983, would clarify matter. It
reads as below:
“8. Dispute
to be decided by Tribunal – Where there is any dispute between
the University and any University employee, which is connected with
the conditions of service of such University employee, the
University or, as the case may be, the University employee may make
an application to the Tribunal for the decision of the dispute.”
The
Tribunal has jurisdiction to adjudicate any dispute between the
University and any University employee, which is connected with the
conditions of service of such University employee. The issues of
notice pay and lien would fall within the jurisdiction of the
Tribunal as they relate to conditions of service of an employee of
the University. The Tribunal appears to have assumed the
jurisdiction of a Court of equity, as a reading of paragraph-39 of
the judgment indicates, and has entered into a discussion regarding
damages and compensation payable to the respondent for “mental
agony” suffered by him. However, ultimately it has imposed
costs of Rs.14,000/- upon the petitioner-University to be recovered
from its erring employees. As has already been stated hereinabove,
there is no justification for doing so, therefore, it should suffice
that this direction is set aside. There is no further requirement of
elaborating on the question of jurisdiction of the Tribunal as it is
not relevant to the issues involved in the petition.
The
finding of the Tribunal that the principles of natural justice have
been violated while terminating the lien of the respondent do not
appear to be correct as the respondent himself has requested for
transfer of GPF amount to M.S.University, Baroda, and was asked by
the petitioner-University to clarify whether he wanted to return to
the said University, or not. He was also informed regarding the
termination of lien by the petitioner-University. In the
circumstances, there is no breach of the principles of natural
justice by the petitioner-University.
In
view of the above discussion and for the above-stated reasons, the
petition succeeds. The impugned judgment of the Tribunal dated
11.08.1999 is hereby quashed and set aside. Rule is made absolute.
There shall be no orders as to costs.
(Smt.Abhilasha
Kumari, J.)
(sunil)
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