{"id":207006,"date":"1958-09-03T00:00:00","date_gmt":"1958-09-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dr-s-b-dutt-vs-university-of-delhi-on-3-september-1958"},"modified":"2016-05-12T15:20:57","modified_gmt":"2016-05-12T09:50:57","slug":"dr-s-b-dutt-vs-university-of-delhi-on-3-september-1958","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dr-s-b-dutt-vs-university-of-delhi-on-3-september-1958","title":{"rendered":"Dr. S. B. Dutt vs University Of Delhi on 3 September, 1958"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Dr. S. B. Dutt vs University Of Delhi on 3 September, 1958<\/div>\n
Equivalent citations: 1958 AIR 1050, \t\t 1959 SCR 1236<\/div>\n
Author: A Sarkar<\/div>\n
Bench: Sarkar, A.K.<\/div>\n
           PETITIONER:\nDr. S. B. DUTT\n\n\tVs.\n\nRESPONDENT:\nUNIVERSITY OF DELHI\n\nDATE OF JUDGMENT:\n03\/09\/1958\n\nBENCH:\nSARKAR, A.K.\nBENCH:\nSARKAR, A.K.\nAIYYAR, T.L. VENKATARAMA\nGAJENDRAGADKAR, P.B.\n\nCITATION:\n 1958 AIR 1050\t\t  1959 SCR 1236\n\n\nACT:\nArbitration - Award - Direction for enforcement of  contract\nof personal service-Validity-Such direction, if an error  on\nthe face of the award-Delhi University Act, 1922 (No.\tVIII\nof 1922),s. 45.\n\n\n\nHEADNOTE:\nThe appellant, a professor in the respondent University, was\ndismissed  from\t service by the\t respondent.   He  thereupon\nreferred  the dispute as to his dismissal and certain  other\ndisputes to arbitration under the provisions Of s. 45 of the\nDelhi  University Act.\tAn award was made on  the  reference\nwhich  among  other things decided that\t the  appellant's  \"\ndismissal  was ultra vires, mala fide, and has no effect  on\nhis  status.   He still continues to be a professor  of\t the\nUniversity  \".\tOn proceedings to obtain a judgment  on\t the\naward:\nHeld,  that the award which purported to enforce a  contract\nof personal service disclosed an error on the face of it and\nmust be set aside.\nHigh Commissioner for India v. I. M. Lall, (1948) L. R. 75\nI.   A.\t 225 and Ram Kissendas Dhanuka v. Satya Charan\tLaw,\n(1949) L. R. 77 I. A. 128, distinguished.\nAn award may disclose an error on its face though the reason\nfor the erroneous decision was not set out in it.\nChampsey  Bhara & Co. v. jivraj Balloo Spinning and  Weaving\nCo.  Ltd., (1923) L.R. 50 I.A. 324, explained.\nHeld,  further, that an award made under S. 45 Of the  Delhi\nUniversity  Act\t to  which  the\t section  itself  makes\t the\nprovisions of the Arbitration Act, 1940, applicable, is\t not\nthe  same  thing as an award under the\tIndustrial  Disputes\nAct,  1947, and there can be no analogy between the two\t and\nthe  words 'any dispute ' occurring in that  section  cannot\ninclude a dispute relating to reinstatement or authorise the\npassing of any such direction by the arbitrator.\nWestern India Automobile Association v. Industrial Tribunal,\nBombay, [1949] F. C. R. 321, distinguished.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION : CiVil Appeal No. 229 of 1956.
\nAppeal\tfrom the judgment and order dated January 15,  1955,
\nof  the\t Punjab High Court in F. A. O. No.  119-D  of  1954,
\narising out of the judgment and decree
\n1237<\/span>
\ndated  May  27, 1954, of the Court of Sub-Judge\t Class\tIII,
\nDelhi, in Suit No. 206 of 1953.\n<\/p>\n
N.   C. Chatterjee, A. N. Sinha and P.K. Mukherjee, for\t the
\nappellant.\n<\/p>\n
M.C. Setalvad, Attorney-General for India, A. B. Rohatgi and
\nB. P. Maheshwari, for the respondent.\n<\/p>\n
1958.  September 3. The Judgment of the Court was  delivered
\nby
\nSARKAR J.-This appeal arises out of a proceeding for  filing
\nan award in Court and obtaining a judgment thereon.
\nThe  award  was\t made in respect  of  disputes\tbetween\t the
\nappellant, a professor of the respondent, the University  of
\nDelhi,\tand the respondent.  The dispute originally  started
\nmany  years ago and with the passage of time,  increased  in
\nvolume.\t  A narrative of the disputes is necessary  for\t the
\nproper appreciation of the questions arising in this  appeal
\nand this we now proceed to give.\n<\/p>\n
On  May 10, 1944, the appellant was appointed  Professor  of
\nChemistry by the respondent.  In August 1948 the  Government
\nof  India  appears to have sanctioned a\t scheme\t called\t the
\nSelection  Grade  for  a higher grade  of  pay\tfor  certain
\nprofessors.   The  appellant claimed to be entitled  to\t the
\nbenefit\t of this scheme but it was not given to him  by\t the
\nrespondent.  This was the first dispute between the parties.
\nIn  March,  1949,  another  professor,\tDr.  Seshadri,\t was
\nappointed  by the respondent the Head of its  Department  of
\nChemistry.  The appellant contended that he was the Head  of
\nthe  Department\t and had been wrongfully superseded  by\t the
\nappointment of Dr. Seshadri as the Head.  This gave rise  to
\nanother\t dispute.  The appellant’s case is that he tried  to
\nget this dispute solved by arbitration under the  provisions
\nof  the Delhi University Act, 1922, but was unable to do  so
\nowing\tto  the\t obstructive  attitude\tof  the\t  University
\nauthorities, and was, therefore, on October 18, 1949, forced
\nto file a suit for a, declaration that his removal from\t his
\nposition  of  the Head of the Department  of  Chemistry\t was
\nillegal.  The respondent in its turn also had certain
\n1238<\/span>
\ncomplaints  against the appellant for misconduct of more  or
\nless  serious character into the details of which it is\t not
\nnecessary to enter.  It appears to have been  agreed between
\nthe parties in October 1950 that the mutual grievances would
\nbe  investigated by Sir S. Vardachariar and Bakshi  Sir\t Tek
\nChand  and  their decision was to be accepted as  final\t and
\nbinding.   In view of this agreement the appellant  withdrew
\nhis  aforesaid suit on November 3, 1950.  The  investigation
\nwas thereafter held and a report submitted on March 1, 1951,
\nwhich  appears\tto  have  gone\tsubstantially  against\t the
\nappellant.   The appellant contended that the  investigation
\nhad  not been fairly held and that the report was  for\tthis
\nand  other  reasons defective and not binding  on  him.\t  He
\nactually made an application on March 26, 1951, to the\tSub-
\nJudge, Delhi, under s. 33 of the Arbitration Act, 1940,\t for
\na  declaration that there was no arbitration  agreement\t and
\nhence the two referees had no jurisdiction to act or to make
\nan award and, in the alternative, if there was an award, for
\nan  order  setting  it aside.  While  this  application\t was
\npending,  the Executive Council of the respondent  passed  a
\nresolution  on April 26, 1951, terminating  the\t appellant’s
\nservice\t as  a professor of the University in  view  of\t the
\nfindings against him in the report of the investigators.  On
\nFebruary  11,  1952,  the Sub-Judge,  Delhi,  dismissed\t the
\napplication under s. 33 on the ground that the agreement  as
\nto  the investigation by Sir S. Vardachariar and Bakshi\t Sir
\nTek Chand of the mutual grievances “,as not a submission  to
\narbitration  and, therefore, no application under s.  33  of
\nthe  Arbitration Act lay.  An appeal to the High  Court\t was
\ndismissed on April 22, 1953, for the same reason.
\nWhat we have stated so far gives the history of the disputes
\nbetween\t the  parties.\tWe now proceed to  the\tevents\twith
\nwhich we are immediately concerned in this appeal.
\nOn  April  28,\t1953, the appellant wrote a  letter  to\t the
\nrespondent  claiming, under the provisions of s. 45  of\t the
\nDelhi University Act, an arbitration with regard to  various
\ndisputes mentioned in it.  That section is in these terms:\n<\/p>\n
1239<\/span><\/p>\n
” Section 45.\n<\/p>\n
Any dispute arising out of a contract between the University
\nand  any officer or teacher of the University shall, on\t the
\nrequest of the officer or teacher concerned, be referred  to
\na Tribunal of Arbitration consisting of one member appointed
\nby  the\t Executive  Council, one  member  nominated  by\t the
\nofficer or teacher concerned, and an umpire appointed by the
\nChancellor.  The decision of the Tribunal shall be final and
\nno  suit  shall\t lie in any Civil Court in  respect  of\t the
\nmatters\t decided by the Tribunal.  Every such request  shall
\nbe  deemed to be a submission to arbitration upon the  terms
\nof this section, within the meaning of the Arbitration\tAct,
\n1940, and all the provisions of that Act, with the exception
\nof section 2 thereof, shall apply accordingly.”
\nBy that letter the appellant appointed Professor M. N. Saha,
\nthe  celebrated scientist, now deceased, an  arbitrator\t and
\ncalled\tupon the respondent to nominate another\t arbitrator.
\nThe  disputes  raised  in this letter  were,  (a)  that\t the
\nappellant  had\tbeen wrongfully deprived  of  the  selection
\ngrade;\t(b) that by the appointment of Dr. Seshadri, as\t the
\nHead of the Department of Chemistry, the appellant had\tbeen
\nwrongfully superseded; (c) that his dismissal was  wrongful.
\nA copy of this letter was sent to Professor Saha.  On May 2,
\n1953,  the appellant again wrote to the\t respondent  calling
\nattention  to  the  fact  that\the  had\t already   appointed
\nProfessor Salia an arbitrator and requiring it to appoint an
\narbitrator  within fourteen days as provided under the\tlaw.
\nOn  May 7, 1953, the respondent wrote to the appellant\tthat
\nhis  letter  of April 28, 1953, had been considered  by\t its
\nExecutive  Council on April 30, 1953, and that the  Council,
\nfor  the reasons mentioned, to which it is not necessary  to
\nrefer,\tdid  not propose to take any action in\tthe  matter.
\nThereafter,  on\t May  18, 1953, the  appellant\taddressed  a
\nfurther\t letter to the respondent in which he stated,  ”  as
\nthe said University had failed for 15 clear days to  appoint
\nafter the service of my said notice “, meaning his notice of
\nMay 2, 1953, ” on the University, please take notice that  I
\nhereby
\n1240<\/span>
\nappoint\t Professor M. N. Saba arbitrator appointed by me  to
\nact  as\t the  sole  arbitrator\tand  give  his\taward.”\t The
\nappellant  also\t wrote in similar terms to  Professor\tSaba
\nasking\thim to proceed with the reference as he\t had  become
\nthe sole arbitrator.  On May 24, 1953, Professor Saba  wrote
\nto the respondent stating that as he had been appointed\t the
\nsole  arbitrator by the appellant, he fixed June  15,  1953,
\nfor  the  hearing  of  the case.   On  June  12,  1953,\t the
\nrespondent  wrote to Professor Saba intimating that  it\t had
\nbeen advised that the appellant had no right to call for  an
\narbitration  and that the respondent did not  recognise\t him
\n(Professor  Saba) as an arbitrator and also that he  had  no
\njurisdiction to act as one.  Notwithstanding this  Professor
\nSaba  started the arbitration proceedings on June 16,  1953.
\nThe  respondent appeared by a lawyer before  Professor\tSaba
\nand repeated its objection to his jurisdiction to act as  an
\narbitrator.   Professor\t Saba  overruled  the\trespondent’s
\nobjection  and held that he had jurisdiction to act  as\t the
\nsole   arbitrator  whereupon  the  representatives  of\t the
\nrespondent  retired  from the proceedings  which  were\tthen
\ncontinued in their absence.\n<\/p>\n
Professor  Saba made an award which is dated June 17,  1953.
\nThe material portion of the award is in these terms
\nThe points requiring determination by me are as follows:-\n<\/p>\n
1.Whether  the\tSelection Grade of Professors  was   rightly
\nwithheld in the case of Dr. S. B. Dutt when it was given  to
\nall other professors of his standing and seniority.\n<\/p>\n
2.   Whether Dr. S. B. Dutt was appointed Professor and Head
\nof   the  Chemistry  Department of the\tUniversity  and\t was
\nrightly removed from the Headship.\n<\/p>\n
3    Whether  the  dismissal  of Dr. Dutt  by  a  resolution
\npassed by the Executive Council on the 26th April, 1951, was
\nmala   fide   and  illegal  and\t  therefore   wrongful\t and
\nineffectual.\n<\/p>\n
4.Whether  Dr.\tDutt was harassed by the  officials  of\t the
\nUniversity and its effect.\n<\/p>\n
1241<\/span><\/p>\n
After  giving  the case my careful and earnest\tattention  I
\nfind:\n<\/p>\n
(a)  The steps for giving the Selection Grade of  Professors
\nof  the\t University to Dr. S. B. Dutt  were  wrongfully\t and
\nwithout\t just cause not taken by the University and  he\t has
\ntherefore been wrongfully deprived of the Selection Grade.\n<\/p>\n
(b)  The terms of appointment of Dr. Dutt were that be would
\nbe  also the Head of the Chemistry Department.\tHis  removal
\nfrom Headship was wrongful.\n<\/p>\n
(c)  Dr. Dutt was wrongfully dismissed.\t His  dismissal\t was
\nultra vires, mala fide and has no effect on his status.\t  He
\nstill continues to be a professor of the University.\n<\/p>\n
(d) He has been subjected to harassment.”\n<\/p>\n
At  the request of the appellant, Professor Saha  filed\t the
\naward  in  the Court of the Sub-Judge, Delhi,  on  June\t 24,
\n1953.\tThe respondent took various objections to  it.\t The
\nSub-Judge overruled these objections and passed a decree  on
\nMay  27, 1954, making the award, excepting a  small  portion
\nthereof\t with which this appeal is not concerned, a rule  of
\nCourt.\t The respondent filed two appeals from this  decree,
\none  in\t the Court of the senior Sub-Judge, Delhi,  and\t the
\nother  in the Court of the District Judge, Delhi, as it\t was
\nin  doubt  as  to which was the proper Court  to  which\t the
\nappeal lay.  By an order made on November 26, 1954 the\tHigh
\nCourt  withdrew both these appeals to itself for trial,\t and
\nby its judgment dated January 15, 1955, allowed the  appeals
\nand  set aside the award on the ground that it disclosed  an
\nerror on the face of it.  The present appeal is against this
\njudgment.\n<\/p>\n
Two  points  have  been raised in this appeal,\tone  by\t the
\nappellant  and\tthe  other by the  respondent  on  a  matter
\ndecided against it which will be referred to later.
\nThe appellant contends that the High Court was wrong in\t its
\nview  that the award disclosed an error on the face  of\t it.
\nThe  High  Court  had  held that it  was  not  open  to\t the
\narbitrator  “to\t grant Dr. Dutt a declaration  that  he\t was
\nstill a professor in the Univer-\n<\/p>\n
1242<\/span><\/p>\n
sity which no Court could or would give him.” The High Court
\nfelt that this declaration amounted to specific\t enforcement
\nof a contract of personal service which was forbidden by  s.
\n21  of\tthe Specific Relief Act and therefore  disclosed  an
\nerror on the face of the award.\n<\/p>\n
We  are in entire agreement with the view expressed  by\t the
\nHigh  Court.  There is no doubt that a contract of  personal
\nservice\t cannot be specifically enforced.  Section  21,\t Cl.\n<\/p>\n
(b)  of\t the  Specific\tRelief Act,  1877,  and\t the  second
\nillustration under this clause given in the section make  it
\nso  clear  that\t further elaboration of\t the  point  is\t not
\nrequired.   It\tseems  to us that  the\tpresent\t award\tdoes
\npurport\t to enforce a contract of personal service  when  it
\nstates\tthat the dismissal of the appellant ” has no  effect
\non  his status”, and ” He still continues to be a  Professor
\nof  the University “. When a decree is passed  according  to
\nthe award, which if the award is unexceptionable, has to  be
\ndone  under s. 17 of the Arbitration Act after it  has\tbeen
\nfiled  in Court, that decree will direct that the  award  be
\ncarried\t out and hence direct that the appellant be  treated
\nas  still in the service of the respondent.  It\t would\tthen
\nenforce\t a contract of personal service, for  the  appellant
\nclaimed\t to  be\t a professor under a  contract\tof  personal
\nservice, and so offend s. 21 (b).\n<\/p>\n
It  was\t said that this might make the award  erroneous\t but
\nthat  was not enough; before it could be set aside,  it\t had
\nfurther\t to be shown that the error appeared on the face  of
\nthe  award.   The learned counsel contended  that  no  error
\nappeared  on the face of the award as the reasoning for\t the
\ndecision  was not stated in it.\t It was said that  this\t was
\nlaid down in the well-known case of Champsey Bhara & Co.  v.
\nJivraj\tBalloo Spinning and Weaving Co. Ltd. (1).   We\twere
\nreferred to the observations occurring in the judgment at p.
\n331 to the following effect:\n<\/p>\n
”  An error in law on the face of the award means, in  their
\nLordship’s  view,  that\t you  can find in  the\taward  or  a
\ndocument  actually incorporated thereto, as for\t instance  a
\nnote appended by the arbitrator stating
\n(1)  (1923) L.R. 50 1. A. 324.\n<\/p>\n
1243<\/span><\/p>\n
the  reasons for his judgment, some legal proposition  which
\nis  the\t basis of the award and which you can  then  say  is
\nerroneous.”\n<\/p>\n
We are unable to agree that the Judicial Committee laid down
\nthe  proposition that the learned counsel for the  appellant
\nascribes to them.  When they referred to the reasons for the
\njudgment, they were contemplating a case where the judgment,
\nthat is, the award itself, did not disclose an error but the
\nreasons\t given for it in an appended paper, did.   They\t did
\nnot intend to say that no error can appear on the face of an
\naward  unless the reasons for the decision contained in\t the
\naward were given in it.\t In our view, all that is  necessary
\nfor an award to disclose an error on the face of it is\tthat
\nit must contain, either in itself or in some paper  intended
\nto  be incorporated in it, some legal proposition  which  on
\nthe  face  of  it  and\twithout more,  can  be\tsaid  to  be
\nerroneous.  This was the decision of the Judicial  Committee
\nin the Champsey Bhara & Co. case (1).  As the award in\tthis
\ncase directs specific enforcement of a contract of  personal
\nservice,  it involves a legal proposition which\t is  clearly
\nerroneous.\n<\/p>\n
Another point raised on behalf of the appellant was that the
\nportion\t of the award which held that his dismissal  had  no
\neffect on his status and that he continued to be a professor
\nwas   merely  consequential  and  hence\t a  surplusage\t and
\ntherefore  an  error disclosed in it would not\tvitiate\t the
\naward.\t This contention seems to us to be  unfounded.\t The
\naward held that the appellant had been dismissed  wrongfully
\nand  mala  fide.   Now, it is not consequential\t to  such  a
\nfinding that the dismissal was of no effect, for a  wrongful
\nand  mala  fide\t dismissal is none  the\t less  an  effective
\ndismissal  though  it may give rise to a claim\tin  damages.
\nThe  award,  no doubt, also said that the dismissal  of\t the
\nappellant was ultra vires but as will be seen later, it\t did
\nnot  thereby hold the act of dismissal to be a nullity\tand,
\ntherefore, of no effect.  We are also clear in our mind that
\nthe  contention\t about the offending portion  of  the  award
\nbeing a mere surplusage affords
\n(1) (1923) L.R. 50 I.A 324.\n<\/p>\n
158<\/span>
\n1244<\/span><\/p>\n
no  assistance to the appellant for it was not said  on\t his
\nbehalf\tthat  the offending portion was severable  from\t the
\nrest  of  the  award and should be struck  out\tas   a\tmere
\nsurplusage.   It, therefore, has to remain as a part of\t the
\naward and so long as it does so, it would disclose an  error
\non the face of the award and make it liable to be set  aside
\nas a whole.\n<\/p>\n
It was then contended that a declaration that the  appellant
\ncontinued  in his service under the respondent in  spite  of
\nhis dismissal by the latter was a declaration which the\t law
\npermitted  to be made and was not therefore  erroneous.\t  It
\nwas  said that such a declaration had in fact been  made  by
\nthe Judicial Committee in The High Commissioner for India v.
\nI.  M. Lall (1).  This contention, in our view,\t also  lacks
\nsubstance.   That  was\tnot a case based on  a\tcontract  of
\npersonal service.  Indeed the contract of the respondent  in
\nthat case provided that the service was ” to continue during
\nthe pleasure of His Majesty, His Heirs and Successors, to be
\nsignified under the hand of the Secretary of State for India
\n“. The respondent had been dismissed by an order made  under
\nthe hand of the Secretary of State for India, and as he\t was
\nliable\tto  be dismissed at the pleasure of  the  Crown,  he
\ncould  base no complaint against his dismissal on  the\tcon-
\ntract  of service and did not, in fact, do so.\t He  founded
\nhis  suit on the claim that his dismissal by the Crown\tfrom
\nthe Indian Civil Service of which he was a member, was\tvoid
\nand  of\t no effect as certain mandatory\t provisions  of\t the
\nGovernment  of India Act, 1935, had not been complied  with.
\nThe  Judicial  Committee accepted this claim  and  thereupon
\nmade  the  declaration that the purported dismissal  of\t the
\nrespondent was void and inoperative and he remained a member
\nof  the Service at the date of the institution of his  suit.
\nThe  declaration  did  not enforce a  contract\tof  personal
\nservice but proceeded on the basis that the dismissal  could
\nonly be effected in terms of the statute and as that had not
\nbeen done, it was a nullity, from which the result  followed
\nthat the respondent had continued in service.  All that\t the
\nJudicial Committee did in
\n1245<\/span>
\nthis  case  was\t to  make  a  declaration  of  a   statutory
\ninvalidity  of an act, which is a thing\t entirely  different
\nfrom enforcing a contract of personal service.
\nThe learned counsel for the appellant also referred, up,  to
\nRam Kissendas Dhanuka v. Satya Charan Law (1), in support of
\nhis contention that the declaration in the form made in\t the
\naward was legal.  That was a case of a suit by the  minority
\nshareholders  in  a  company against  its  directors  for  a
\ndeclaration  that  an  ordinary resolution  of\tthe  company
\nterminating  the appointment of its Managing Agent was\tvoid
\nand  inoperative inasmuch as under art. 132 of the  Articles
\nof  Association of the Company the Managing Agents could  be
\nremoved by an extraordinary resolution only.  The High Court
\nhad declared the resolution to be void and inoperative.\t The
\nJudicial Committee maintained that declaration and  rejected
\nthe  argument that ” to affirm the continuance in  force  of
\nthe  Managing  Agent’s\tappointment  amounted  to   specific
\nenforcement  of the contract of personal service and  was  a
\nviolation of s. 21(b) of the Specific Relief Act, 1877.”  It
\nis  quite clear to us that this decision has no\t application
\nto the case in hand.  That was not a case in which  specific
\nperformance  of a contract of service was sought.   In\tfact
\nthe  servant, that is to say, the Managing Agent, was not  a
\nparty  to  the\taction at all.\tAs  the\t Judicial  Committee
\nobserved: ” It (the decree) merely prevents dismissal of the
\nmanaging  agents or termination of their appointment at\t the
\ninstance  of  a\t majority in violation of  the\tarticles  of
\nassociation  of the company which the minority are  entitled
\nto  have observed.  As between the company and the  managing
\nagents\tit  certainly  has not the  effect  of\tenforcing  a
\ncontract  of personal service.” It was a case, as the  Chief
\nJustice of the Calcutta High Court said in his judgment,  in
\nRam Kissendas v. Satya Charan (2) at p. 331 ” not to enforce
\na  claim  to  employment with an employer,  but\t a  suit  to
\nprevent\t  third\t persons  interfering  with  the   Company’s
\nemployees  who\tare carrying out their contract\t of  service
\nwith  the  company.   In other words, it is not\t a  suit  to
\nenforce a contract, but a suit to prevent the procurement of
\na breach of contract.” To
\n(1) (1949) L. R. 77 1. A. 128.\n<\/p>\n
(2) (1945) 50 C.W.N. 331.\n<\/p>\n
1246<\/span><\/p>\n
such a suit, of course, s. 21 of the Specific Relief Act has
\nno application.\n<\/p>\n
The  learned counsel for the appellant also contended  ;that
\nthe  present case was a case of an ultra vires act as I.  M.
\nLall’s\tcase  (1)  was and therefore governed  by  the\tsame
\nconsiderations.\t He relied for this purpose on that  portion
\nof the award which held that the ” appellant’s dismissal was
\nultra  vires  “. We find no basis for this  contention.\t  No
\npoint as to the dismissal of the appellant being ultra vires
\nbad  been  referred  to\t the  arbitrator.   The\t points\t for
\ndecision  set  out  by the arbitrator do not  refer  to\t any
\nquestion  of  the dismissal being ultra\t vires.\t  Again\t the
\nletter\tof the appellant, dated April 28, 1953, setting\t out
\nthe  disputes of which he required decision  by\t arbitration
\ndoes  not  make\t out  any case that  the  dismissal  of\t the
\nappellant  by  the respondent was ultra vires  the  latter’s
\nincorporating  statute.\t His point about the  dismissal\t was
\nthat it had been malicious and therefore wrongful ; that  it
\nhad  been  brought about by a resolution  of  the  Executive
\nCouncil\t of the respondent on the basis of the report  (also
\ncalled award) of the investigators, Sir S. Vardachariar\t and
\nBakshi\tSir Tek Chand, procured by the Vice-Chancellor,\t Dr.
\nSen,   by  denying  to\tthe  members  of  the  Council\t any
\nopportunity to discuss the merits of that report.  His\tcase
\non this point in his own words was this:\n<\/p>\n
”  When the award was put before the Executive\tCouncil\t Dr.
\nSen  definitely\t prohibited  all discussions of\t it  on\t the
\nground that it was an award and suppressed those who desired
\nto  comment  on it, feeling as they did that  the  decision,
\nspecially  in the matter of the supposedly altered  telegram
\nwas open to grave doubts.  In regard to this, questions were
\nasked but not answered.\n<\/p>\n
If Dr. Sen had not wrongly disallowed discussion, I  venture
\nto  say\t that  the  Council  would  not\t have  agreed  to  a
\ndismissal,   or\t at  any  event\t any  allegation  of   moral
\nturpitude.”\n<\/p>\n
It is clear therefore that the appellant was challenging his
\ndismissal  on the ground that the Vice-Chancellor, Dr.\tSen,
\nwho, he said, was inimically disposed towards
\n(I)  (1948) L.R. 75 I.A. 225.\n<\/p>\n
1247<\/span><\/p>\n
him,  had  shut\t out  all discussion  on  the  question\t and
\nprocured  a resolution for the dismissal of  the  appellant,
\nand  that because of such malicious and wrongful barring  of
\ndiscussion,  the  resolution was wrongful.  It was  not\t the
\nappellant’s  case before the arbitrator that  the  dismissal
\nwas ultra vires the statute or otherwise a nullity.  We also
\nfind that this point was not advanced in the courts below.
\nThe  last point raised on behalf of the appellant was  based
\non  s. 45 of the University Act.  The terms of that  section
\nhave  been earlier set out.  The contention of\tthe  learned
\ncounsel\t is  that since the section says  that\tany  dispute
\narising\t out  of a contract between the University  and\t any
\nofficer\t or teacher of the University shall, on the  request
\nof  the\t officer  or teacher concerned,\t be  referred  to  a
\nTribunal  of  Arbitration, a dispute as to dismissal  and  a
\nclaim  to  reinstatement might be  referred  to\t arbitration
\nunder  it, and if that could be done, then, the award  might
\nproperly  direct the dismissed professor to  be\t reinstated.
\nFor  this part of his argument the learned counsel  referred
\nus  to\tWestern India Automobile Association  v.  Industrial
\nTribunal,  Bombay  (1).\t  It had been  held  there  that  an
\nIndustrial  Tribunal  had  power  in  an  award\t made  on  a
\nreference under the Industrial Disputes Act, 1947, to direct
\nreinstatement of discharged employees.\tThe learned  counsel
\nreferred  us to the following observation occurring in\t-the
\njudgment of the Federal Court at p. 332 :\n<\/p>\n
”  Any\tdispute\t connected  with  the  employment  or\tnon-
\nemployment  would ordinarily cover all matters that  require
\nsettlement between workmen and employers, and whether  those
\nmatters concern the causes of their being out of service  or
\nany  other  question and it would also\tinclude\t within\t its
\nscope  the reliefs necessary for bringing  about  harmonious
\nrelations between the employers and the workers.”
\nIt  was contended that, as in the Western  India  Automobile
\nAssociation case (1), the words ” any dispute ” in s. 45  of
\nthe University Act would include a dispute as to a claim for
\nreinstatement and would therefore give the arbitrator  power
\nto  order reinstatement.  We do not think that\tany  analogy
\ncan be drawn from the,
\n(1)  [1949] F.C.R. 321.\n<\/p>\n
1248<\/span><\/p>\n
wording\t of  the  Industrial  Disputes\tAct.   That  Act  is
\nconcerned with considerations which are peculiar to it.\t The
\nproceedings  before a Tribunal constituted under   that\t Act
\ncannot\tbe  said  to  be  arbitration  proceedings  nor\t its
\ndecision an award, though called an award in the Act, in the
\nsense  in which the words ” arbitration proceedings ” and  ”
\naward ” are used in the Arbitration Act.  An award under the
\nIndustrial  Disputes  Act cannot be filed in  Court  nor  is
\nthere  any provision for applying to Court to set it  aside.
\nAll  considerations  that  apply  to  an  award\t under\t the
\nIndustrial Disputes Act, cannot be said to apply to an award
\nmade under the Arbitration Act.\t Furthermore, under s. 45 of
\nthe  University Act, the arbitration held under it is to  be
\ngoverned by the provisions of the Arbitration Act, 1940, and
\nthe validity of an award made under such an arbitration has,
\ntherefore, to be decided by reference to the rules  applying
\nto  that Act, one of such rules being that the award  should
\nnot  disclose an error on its face.  For these\treasons,  in
\nour view, this argument is unfounded.\n<\/p>\n
This  disposes\tof all the points raised on  behalf  of\t the
\nappellant  and brings us to the contention raised on  behalf
\nof the respondent.  That contention was that the appointment
\nof  Professor Saha as the sole Arbitrator was  illegal.\t  It
\nwas  said that the respondent claimed to  appoint  Professor
\nSaha  the sole arbitrator under s. 9 of the Arbitration\t Act
\nbut that section could only apply where the reference was to
\ntwo  arbitrators, one to be appointed by each  party,  while
\nthe proper interpretation of s. 45 of the University Act was
\nthat the arbitration was to three Arbitrators, one nominated
\nby  each of the parties and the third by the  Chanceller  of
\nthe   University.   This  point\t was  decided  against\t the
\nrespondent by the High Court.  As, however, the appeal\tmust
\nbe dismissed for the reason that the award contains an error
\non  the\t face of it, as we have earlier\t found,\t it  becomes
\nunnecessary  to decide the point raised by  the\t respondent.
\nWe, therefore, do not express any opinion on this question.
\nIn   the  result  this\tappeal\tis  dismissed\twith   costs
\nthroughout. Appeal dismissed.\n<\/p>\n
1249<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Dr. S. B. Dutt vs University Of Delhi on 3 September, 1958 Equivalent citations: 1958 AIR 1050, 1959 SCR 1236 Author: A Sarkar Bench: Sarkar, A.K. PETITIONER: Dr. S. B. DUTT Vs. RESPONDENT: UNIVERSITY OF DELHI DATE OF JUDGMENT: 03\/09\/1958 BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. AIYYAR, T.L. VENKATARAMA GAJENDRAGADKAR, P.B. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-207006","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDr. S. B. 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