ORDER
D.G. Deshpande, J.
1. This petition is filed by one Tanaji Mahadev Nikam who was terminated from his service as clerk by respondent No. 1 as per Exhibit G dated 28-4-1988 which is signed and sent by Secretary of respondent No. 1. It is stated in the said termination order Exhibit G that the petitioner was working as a Junior Clerk and was found involved in financial irregularities, and therefore, an inquiry was held against him and since he was found guilty, the Executive Committee of respondent No. 1 had decided in its meeting dated 23-4-1988 to terminate his service under Rule 43(B)(5) of the Standard Code, 1984. Accordingly the service of the petitioner were terminated from 1-5-1988, and he should have to hand over his charge on 30-4-1988.
2. The petitioner challenged this termination order before the Presiding Officer, College Tribunal, Shivaji/Pune University, Pune vide Appeal No. 27 of 1988. It appears from the record Exhibit K, which is an order of the College Tribunal, that one employee by name Ramchandra S. Potakar of respondent No. 1 had filed similar appeal before the College Tribunal and both the appeals were decided to hear jointly.
3. While the appeals were pending respondent No. 1 raised preliminary objection regarding jurisdiction of the College Tribunal to entertain and decide the appeal. This objection of the respondent was up held and the College Tribunal dismissed both appeals for want of jurisdiction by its order dated 2-9-1988. Hence this appeal.
4. I heard Mr. Subhash Langote for the petitioner, Mr. R.S. Mohite for respondent No. 1 and Mr. Nargolkar A.G.P. for State/respondents.
5. Before considering the submissions of Mr. Langote it is necessary to understand the nature of preliminary objection raised by respondent No. 1 before the College Tribunal. In that regard it was submitted by Mr, Mohite that respondent No. 1 is neither a college nor the recognized institute. Respondent No. 1 was an independent institute registered under the Societies
Act, having separate existence and having a large administrative wing, and number of persons were employed in different capacities, and therefore, the petitioner who was admittedly working in respondent No. 1 institute and was not working in any of the colleges of the institution, then petitioner had no right to challenge the termination order under any provision of the Shivaji University Act, particularly under section 42(B) of the said Act. The College Tribunal up held his contention and held that the petitioner was not the employee of any college or recognized institute and respondent No. 1 did not fall in the definition of Clause 2(23) of the Shivaji University Act, and therefore, the College Tribunal had no jurisdiction to entertain the matter.
6. As against this it was contended by Counsel for the petitioner that respondent No. 1 had adopted Standard Code 1984 prescribed by the Government and the petitioner was terminated from the service under section 42(B)(5) of the Standard Code, but since the Standard Code did not provide any remedy of appeal, the petitioner was required to file appeal under the provisions of the Shivaji University Act, the Act squarely applies to the facts of the case and the College Tribunal was in erred in holding that it has no jurisdiction. Secondly, it was contended by Counsel for the petitioner on the basis of the affidavit filed by one Ramchandra Potekar that though respondent No. 1 was known as Rayat Shikshan Sanstha and was having number of employees, it was not that the employees of respondent No. 1 Sanstha were never transferred to the colleges or other educational institutions of respondent No. 1. Deponent Mr. Potekar has also given nine examples wherein all those nine employees who were employed by respondent No. 1 and who were working in the office of respondent No. 1 were transferred to the educational institutions i.e. school and colleges, and therefore, according to Counsel for the petitioner, the status of respondent No. 1 was not different from or separable from the status of a college or a recognized institute, and therefore, the College Tribunal only had jurisdiction to entertain and decide the appeal against termination.
7. Considering these rival submissions, it is necessary to see the relevant provisions of the Shivaji University Act, 1974. This Act is an Act to consolidate and amend the law relating to the Shivaji University and it came into force on 19-5-1974. As per Preamble of this Act, these two amongst other things, to promote a more equitable distribution of facilities for higher education in the different areas of the State; to provide for more efficient administration and financial control, and better organization of teaching and research; to ensure faithful observance of the law in all matters, including the selection and appointment of teachers and other employees:.,….”. Section 2(6) of this Act defines “College” as a College conducted by the University or affiliated to it. Section 2(1) defines “affiliated College” as a college affiliated under section 43, and includes college deemed to be an affiliated college under section 91. Section 2(18) defines “Local Managing Committee” as a committee constituted for a college under Clause (b) of sub-section (3) of section 43″. Section 2(20) defines “Management” as the trustees or the managing or governing body, by whatever name called, of any trust registered under the Bombay Public Trusts Act, 1950, or any society registered under the Societies Registration Act, 1860, under whose management one or more colleges or institutions are conducted and admitted to the privileges of the University”.
8. The Shivaji University Act prescribes the procedure for affiliation and recognition of colleges in Chapter VII. Section 43 of this Chapter is quite exhaustive and hence only important features having bearing on the question involved in the present petition are reproduced herein after; “……. no application for opening of a college, shall be considered by the Executive Council without the approval of the State Government. A college applying for affiliation to the University shall apply to the Registrar and shall satisfy the Executive and Academic Councils for which affiliation is sought, a separate local managing committee shall be constituted by the Management, which shall consist of not less than seven and not more than fifteen members of whom the Principal shall be one (who shall also be the Secretary of such committee), two shall be other teachers in the college elected by other teachers and one shall be an employee (not being a teacher) in the college elected by other employees. The members so elected shall hold office for three years. The local managing committee shall keep true and proper accounts of the income and expenditure of the college and shall have such other duties and functions as may be assigned to it by the Management and the local managing committee shall perform such duties and discharge such functions subject to the control and supervision of the Management. The college has to give an undertaking that in the event of affiliation being granted by the State Government, it shall not change or transfer the Management of college without previous permission of the Executive Council and shall report to… .”
9. This section 43 further provides that after the approval is given by the State Government, the Executive Council shall direct a local inquiry to be made regarding the matters stated in sub-section (3) (all of which are quoted above)
10. If the procedure to be followed for affiliation of colleges is taken in a sequence with reference to the aforesaid provisions and the definitions, the following things are emerged:
(1) Firstly there has to be a trust or a society registered under the Bombay Public Trusts Act or Societies Registration Act respectively who has a management consisting of the trustees or the managing or governing body and under whose management one or more colleges or institutions are conducted and admitted to the privileges of the University.
(2) This management has to constitute a separate local managing committee consisting of not less than seven and not more than fifteen members, of whom the principal shall be one (who shall also be the Secretary of such Committee) and amongst others one shall be an employee (not being a teacher) elected by the employees from amongst themselves. The local managing committee shall perform such duties and discharge such functions under the control and supervision of the Management.
(3) The Management or the local managing committee shall apply to the University for affiliation and such an application should be made through the Registrar of University.
(4) The college to give an undertaking to the University that in the event of affiliation being granted by the State Government it shall not change or transfer the management of college without previous permission of the Executive Council.
(5) Section 43 casts certain duties on the college which has been defined under section 2(6) as a college affiliated to the University. Affiliated College means a college under section 43 as is in section 2(1).
(6) College and affiliated college have been used in the same sense in the Shivaji University Act.
11. All these provisions will show that a college so far as this Act is concerned, is nothing but an affiliated college and a college cannot get affiliation unless there is a trust or a society having management as defined under section 2(20) and unless this management appoints a local managing committee and thereafter either the management or the local committee applies to the University for affiliation. In other words it will be clear that a college, so far as this Act is concerned, has no existence unless there is a management or a local managing committee and a management or a local managing committee of a trust or a society has no existence, so far as this Act is concerned, unless it has a college and it applies for affiliation of that college to the University.
12. So far as facts of this case are concerned, respondent No. 1, Rayat Shikshan Sanstha, though it is registered as a trust under the Bombay Public Trusts Act or a society under the Societies Registration Act, will have no existence, so far as this Act is concerned, unless, firstly, it has got a management and a local managing committee and it has colleges for which respondent No. 1 seeks affiliation from the Shivaji University. If a trust or a society is registered for any other purpose and does not have a college of its own, then obviously it does not come under Shivaji University Act, though it may exist for some other purposes. Similarly no college run by respondent No. 1 can have any independent existence because the college or existence of college pure and simpliciter is not at all recognized by this Act. A college means an affiliated college and for affiliation there has got to be a local managing committee or management of respondent No. 1. Therefore, existence of respondent No. 1 or institution like respondent No. 1 depends on its running colleges (after getting affiliation to some University or to Shivaji University) and existence of college of respondent No. 1 depends on respondent No. 1 because a college cannot get any affiliation unless it is a college started by respondent No. 1 or got affiliated by respondent No. 1.
13. All the aforesaid provisions of Shivaji University Act, therefore, clearly show that the institution like respondent No. 1 comes in the category of the Management and the sole object of respondent No. 1 is to get affiliation to its colleges from the Shivaji University. If undisputable interdependent of the management and the college or the institution like respondent and the colleges run by it is taken into consideration then it becomes clear that a management and an affiliated college are two sides of same coin. There cannot be a coin without having two sides, and in the same way there cannot be a management without college and the college without management. (With reference to Shivaji University Act). Existence of college is sine-qua-non for management or institution like respondent No. 1 and existence of respondent No. 1 is sine-qua-non for establishing the colleges and getting affiliation from the University.
14. Therefore, for all the aforesaid reasons the institution like respondent No. 1 can not be treated as a separate and distinct entity from the colleges run by it, nor the colleges run by it can be treated as a separate and distinct entity at least so far as Shivaji University Act is concerned. Consequently, respondent No. 1 and the colleges run by it are inseparable in any eventuality. In view of this legal position the arguments of the Counsel for the respondent No. 1 can not be accepted.
15. Second most important thing in this regard is Chapter VI of the Shivaji University Act which deals with conditions of service of employees in colleges
and recognized institutions. Section 42-A deals with constitution of College Tribunals for the adjudication of disputes and differences between employees and Management (stress added) of any affiliated college, ….. connected with or arising out of, the matters specified in section 42-B. Section 42-B reads as under :-
“….. Notwithstanding anything contained in any law or contract for the time being in force, any employee (whether a Teacher or other employee) in any affiliated college or Recognized Institution who is dismissed or removed or whose services are otherwise terminated, or who is reduced in rank by the Management and who is aggrieved, shall have a right of appeal and any appeal against any such order to the Tribunal constituted under section 42-A.”
Section 42-D deals with the powers of the College Tribunal and it lays down that after hearing both the parties if the Tribunal is satisfied that there are no reasons to interfere with the order of the Management, it may dismiss the appeal. But if the Tribunal finds that the order of the Management is illegal and improper, it may set aside the order of the management and give suitable directions to the Management as suggested in the later part of the section.
16. Sub-sections (3) and (4) of section 42-D also empower the Tribunal to recommend to the State Government to make deductions from the grant payable to the Management for payment of dues of the employees, and further the orders or directions by the Tribunal shall be complied by the Management within stipulated period.
17. Section 42-F provides that if the Management fails to comply with the direction, the Management shall be liable to fine.
The word “Management” as has been used in section 42-A means the management as defined in section 2(20) of the Act. It is a management of a trust or a society under whom one or more colleges are conducted and admitted to the privileges of the University i.e. by affiliation. A dispute between the management and its employee (whether teaching or non-teaching) is to be decided by section 42-A. This section does not speak of a dispute between the employee and college or the principal of the college. But it speaks of a dispute between the employee (whether teaching or non-teaching) and the management. It will be, therefore, clear that the college as such has no existence so far as this Act is concerned, and it is only the management that is recognized and it is only for solving or resolving the dispute between the management and its employee that college Tribunal is constituted. This provision of section 42-A, therefore, proves that the management and college are inseparable and college as such has no existence, neither the management as such or the trust or the society which is managed by it has no independent existence.
18. In view of this legal position and in view of inseparable existence of the colleges of respondent No 1 and the respondent No. 1, the objection of respondent No. 1 that the Shivaji University Act is not applicable to the respondent has got to be outright rejected.
19. Section 42-A deals with constitution of College Tribunals for the adjudication of disputes or differences between employees and management of any affiliated college or Recognized Institution, connected with or arising out of, the matters specified in section 43-B, and different Tribunals may be constituted for different Colleges or Institutions or different classes of their employees. Section 42-B thereafter provides that;
“….. Notwithstanding anything contained in any law or contract for the time being in force, any employee (whether a Teacher or other employee) in any affiliated College or Recognized Institution who is dismissed or removed or whose services are otherwise terminated, or who is reduced in rank by the management and who is aggrieved, shall have a right of appeal and any appeal against any such order to the Tribunal constituted under section 42-A”.
Section 42-D deals with the powers of the College Tribunal and it lays down that after hearing both parties if the Tribunal is satisfied that there are no reasons to interfere with the order of the Management, it may dismiss the appeal. But under sub-section (2) of section 42-D, if the Tribunal comes to the conclusion that the impugned order i.e. the order of dismissal, removal or otherwise termination of service or reduction in rank was contrary to law or illegal or improper, the Tribunal may set aside the order of the management partially or wholly or give suitable directions to the management as suggested in the later part of this section. Sub-sections (3) and (4) of section 42-D also empower the Tribunal to recommend the State Government to make deduction from the grant payable to the management for payment of dues of the employees, and further orders or directions by the Tribunal shall be complied by the management within the stipulated period.
Section 42-F provides that if the management fails to comply with the direction, the management shall be liable for fine.
20. The College Tribunal as has been seen is, constituted for adjudication of the disputes or differences between the employees and the management of any affiliated college connected with or arising out of, the matters specified in section 42-B. Under section 42-B the right of appeal is given to any employee (whether a Teacher or other employee) in any affiliated college, who is dismissed or removed or whose services are otherwise terminated, or who is reduced in rank by the management and who is aggrieved by the said order to the College Tribunal.
21. It was urged by Counsel for respondent No. 1 that the petitioners are not affiliated to any college but they are affiliated to the Institution, and therefore, they can not get right of appeal under section 42-B and consequently the College Tribunal gets no jurisdiction to entertain the appeals.
22. The crucial question is, whether a distinction between affiliated College and Institution or management like respondent No. 1 can be made for the purpose of exclusive jurisdiction of the College Tribunal and for the purpose of denying right of appeal to the petitioners.
23. If the object of the provisions of section 42-A is seen from the wording of the section itself it will be clear that the College Tribunal is constituted for the adjudication of disputes or differences between the employees and the management of any affiliated college. It was tried to be contended by Counsel for respondent No. 1 that the powers of the College Tribunal under section 42-A are subject to the provisions of section 42-B, and according to him, since section 42-B refers to any employee in any affiliated college, the petitioner, not being an employee of the affiliated college, can not get advantage of section 42-A or 42-B.
24. This argument is required to be rejected for two reasons i.e. section 42-B is referred to in section 42-A in a particular context and the context is as under:
“The State Government shall….. constitute the College Tribunals for the adjudication of disputes or difference between the employees and the management of any affiliated college….. connected with or arising out of the matters specified in section 42-B…..”
Section 42-B lays down as under :
“Notwithstanding anything contained in any law or contract for the time being in force, any employee (whether a Teacher or other employee) in any affiliated College….. who is dismissed or removed or whose services are otherwise terminated, or who is reduced in rank, by the management and who is aggrieved, shall have a right of appeal…..”
25. Section 42-A has used two words viz “connected with” or “arising out of. It is pertinent to note that section 42-B has not used the words or phrase connected with or arising out of. It is therefore, clear that section 42-B can be invoked in two contingencies viz. “disputes connected with or arising out of. The word “connected with ” even if used in narrow sense then it can be said that “connected with any employee” (whether a Teacher or other employee) in the affiliated college. If section 42-A has only used word connected with reference to section 42-B then arguments of the Counsel for the respondent could have been accepted that the employee i.e. the petitioner was not connected with any affiliated college. However, section 42-A has also used word arising out of and this word has direct connection with the contingencies of dismissal, removal or reduced in rank by the management.
26. Therefore, considering section 42-A and 42-B jointly what is clear is that the College Tribunal is constituted for;
(1) adjudication of disputes and differences between the employees and management;
(2) between employees and management of any affiliated college;
(3) disputes and differences “connected with affiliated college”;
(4) disputes and differences “arising out of dismissal, removal, termination and reduced in rank”;
(5) between any employee (whether a Teacher or other employee) in any affiliated college; and
(6) if reduction, dismissal etc. is by the management.
27. Section 42-A which is an important section in a sense that it speaks about the constitution of College Tribunal by management. And section 42-B only gives right of appeal to the College Tribunal. Obviously unless a College Tribunal is constituted, a right of appeal would not be there and it will not be an enforceable or an exercisable right. Therefore, when section 42-A i.e. the basis section provides that a College Tribunal shall be constituted for adjudication of disputes and differences between the employees and the management of any affiliated college then section 42-B has to be read in wider context and secondly when section 42-A provides that if the differences between the employees and management of any college are connected with or arising out of the matters specified in section 42-B. then such an employee shall have right of appeal.
28. Considering this legal position what follows is as under;
(a) The petitioner was an employee of the management of an affiliated college, may be respondent No. 1 had established number of colleges in the area of its operation;
(b) The petitioner is an employee of respondent No. 1 which is a management of the affiliated colleges or management of any affiliated college;
(c) The petitioner is terminated from the services and it is a dispute arising out of the said termination.
29. In the light of the aforesaid facts and the discussion made between inseparable nature of respondent No. 1 and its colleges, it becomes clear that the petitioner has fulfilled and satisfied the requirements of section 42-A and 42-B, and therefore, it has to be held that the petitioner has right to approach the College Tribunal in appeal and that the College Tribunal has jurisdiction to entertain his appeal and decide it on merits.
30. It is also pertinent to note that the petitioner’s case is also supported by the affidavit of Ramchandra Potekar in which about ten instances have been given where the employees of respondent No. 1 were transferred to different colleges. This clearly shows that respondent No. 1 did not make any difference between their employees or employees of colleges.
31. A perusal of impugned order passed by the Presiding Officer, College Tribunal shows that all these important aspects have not been at all taken into consideration by the Presiding Officer of the College Tribunal. He has considered only one aspect and i.e. the petitioner was not the employee of any college or recognized institute. This approach of the College Tribunal being very narrow or within the consideration of all the aforesaid aspects of the matter and same is liable to be set aside. Consequently, it has to be held that the impugned order is wrong. It was contended by the Counsel for the petitioner that for considering the time span i.e. from the date of termination till the decision of this petition, the petition should be heard on merits, if Court comes to the conclusion that the impugned order is wrong. 1 do not think that will be the proper course to be adopted by this Court because dismissal order was pursuant to certain inquiries conducted by respondent No. 1 and obviously those questions in inquiries are the questions and facts which the petitioner may allow and respondent No. 1 may deny or respondent No. 1 may assert or petitioner may deny. Therefore, even though it is true that the petitioner’s termination is in challenge since 19-8-1981 the matter must go to the Tribunal, However, time limit can be fixed for decision. Hence the order:-
ORDER
32. The petition is allowed.
33. Impugned order of the College Tribunal dated 2-9-1988 is quashed, and it is held that the College Tribunal has jurisdiction to entertain the appeal of the petitioner and the petitioner has right of appeal to the College Tribunal under the provisions of Shivaji University Act. 1974.
34. The matter is remanded to the College Tribunal, Pune for decision on merits within a period of six months from the date of appearance of the parties before it.
35. The parties are directed to appear before the College Tribunal, Pune on 1st October 1999.
36. Petition allowed.