1987 Supreme(Bom) 190

IN THE HIGH COURT OF BOMBAY
P.B. Sawant G.H. Guttal, JJ.
Krishna Chandra Sharma .... Appellant.
Versus
Sind Hyderabad National Collegiate Board others .... Respondents.
Civil Reference No. 4 of 1984 with Civil Reference Nos. 5 6 of 1983 and Civil Reference No. 5 of 1985 with Civil Reference No. 2 of 1986, decided on 29-6-1987.
Advocates appeared :
K.K. Singhvi with B.N. Singhvi, for appellant in C.R. No. 4/84.
H.G. Advani with A.H. Advani i/b. Raghavayya Nagindas Co. for respondent Nos. 1 and 2, in C.R. No. 4/84 for respondent No. 2. in C.R. 2/86.
B.N. Singhvi, for respondent No. 3 in C.R. No. 4/84.
A.S. Bobade, Advocate General with K.H. Chopda, A.G.P., for Government in all.
O.J. Menezes, for Interveners in all.
Y.H. Muchhala with Y.H. Menon with Miss T.T. Dawoodbhay, for respondent No. 2 in C.R. 5/83 6/83.
M.P. Vashi with M.M. Vashi, and V.S. Shetty, for appellant in C.R. 6/83.
P.D. Shisodiya i/b. M.S. Bodhanwalla Co., for respondent in C.R. No. 5/85.
S.H. Kapadia with H.D. Buch, for appellant in C.R. 2/86.

Headnote:BOMBAY UNIVERSITY ACT, 1974

       Section 42-A (3)-Appointment of Presiding Officers of Tribunal on part time basis-Contended that Presiding Officer on part time basis would not be in position to devote their complete attention to the work -They would be reduced to government nominee looking forward for further extension thus losing their independence in the process-Held that if Tribunal was to act judicially and independently, the Presiding Officer to have a fixed uniform tenure-Appointment should be on full time basis and tenure should not be less than three years- Without such safeguards, the law laid down by Supreme Court would not be observed in its spirit.

       Sub-section (4) of Section 42-A which provides for the appointment of Presiding Officers of the Tribunal on part time basis and also for such period or periods not exceeding five years in the aggregate as the Government may from time to time decide in each case. The appointment of Presiding Officers on part time basis and for unspecified periods left to the discretion of the Government in each case, obviously makes their tenure precautious. They will not be in a position to devote their complete attention to the work in band. What is worse, they will be reduced to the status of government nominees always looking forward to the government for further extensions of their tenure thus losing their independence in the process. The presiding officer must be independent of governmental as well as other influences in order to be able to discharge his function free from fear and favour. There is much force in this contention. It is held that if the Tribunal is not to be a mockery and is to act judicially and independently of any external influences, the Presiding Officer of the Tribunal must have a fixed tenure which should be uniform in all cases. The appointment of the officer should also be on a full time basis, and no part time appointment should be made. The tenure of office should further be of no less than three years to enable the officer to discharge his functions efficiently. Without these safeguards, the law laid down by the Supreme Court will not be observed in its spirit.

       Section 42-A (3)-Qualifications for appointment as a Presidency Officer of the Tribunal-It was rightly contended that to impose persons mentioned in Clauses 42-A (3) (c) and (d) as Presiding Officers of the Tribunal was to make mockery of the object of constituting the Tribunal-Persons concerned were from executive branch of administration having no experience of Court of law-They would have no experience of Court procedure much less of procedure under Civil Procedure Code.

       The provisions of Section 42-A (3), lays down qualifications of a person for appointment as a Presidency Officer of the Tribunal. As is clear from the provisions, the Presiding Officer must be a person who is bolding or has held a judicial office not lower in rank than that of the District Judge or a person who is practising as an Advocate for not less than ten years. He may also be an individual bolding or bas held an office not lower in rank than that of Deputy Secretary to Government, Deputy Commissioner of Labour or Joint Director of Education in the State or who is or has been a Principal of an affiliated College or Recognised Institution for not less than five years. It is contended, rightly, that to impose persons mentioned in clauses 42-A (3) (c) and (d) as Presiding Officers of the Tribunal is to make a mockery of the object of constituting the Tribunal and is also against the essence of the law laid down by the Supreme Court on the subject. The persons concerned are virtually from the executive breach of administration with no experience either of Court of law or of deciding matters otherwise judicially. The Tribunal is vested with the power to decide the disputes judicially and is vested with the same powers as are vested in an Appellate Court under the Code of Civil Procedure. The persons concerned will have no experience of Court procedure much less of the procedure under the Civil Procedure Code.

       Section 42-A (5)-Remuneration and service conditions of Presiding Officer to be reasonable to keep him in comfortable condition-Advocate appointed as Presiding Officer to be given salary, allowances and other service conditions as are available to District Judge-Salary and other service condition of a person appointed from ranks of judicial officers to be protected-Held, that would meet requirements of the law.

       The remuneration and other conditions of service of the Presiding Officer will have to be reasonable enough to keep the officer in sufficiently comfortable condition, and free from financial worries to enable him to devote his whole-huarted attention to the work in hand. Hence when and Advocate as mentioned in sub-clause (b) of Section 42-A is appointed as the Presiding Officer, he should be given salary allowances and other conditions of service which are available at least to the District Judge at the relevant time. Where a person is appointed from the ranks of the judicial officers, his salary and other service conditions should be protected and he should be entitled to salary and other conditions of service as may be modified from time to time for the category to which he belongs. Where the judicial officer appointed is a person who has held such office in the past, his salary and other conditions of service should at least be such as he was enjoying before he ceased to be such officer. This will meet the requirements of the law.

       Section 42- B-Contended that expression "and who is aggrieved" in the section had not concerned ispites cognizable by Tribunal to the eases of dismissal, removal or termination of service otherwise or reduction in rank only but included disputes arising out of all manners of disciplinary action-Reading of expression not correct- Held that disputes which Tribunal could take cognizance of under Section 42-B (1) were only those which would arise either out of dismissal or removal or termination of service otherwise or out of reduction in rank and not any other dispute.

       The contention that the expression "and who is aggrieved" in Section 42-B (1) has not confined the disputes cognizable by the Tribunal to the cases of dismissal, removal or termination of service otherwise or reduction in rank only, but has widened the scope of the cognizable disputes to include disputes arising out of all manners of disciplinary action. This reading of the said expression is not correct. The said expression has a reference to the employee who is aggrieved by either of the actions mentioned earlier viz. of dismissal or of removal or of termination of service otherwise or of reduction in rank as the case may be. The expression, according to us, has not been used to refer to an employee who is aggrieved by an action otherwise than any of the said disciplinary actions. Hence the fear expressed on behalf of the management is not wello founded. If it is necessary to make clear what is otherwise apparent. It is restated that the disputes which the Tribunal can take cognizance of under Section 42-B (1) are only those which would arise either out of dismissal or removal or termination of service otherwise or out of reduction in rank and not any other dispute.