Writ Petition No.2961 of 2011,Writ Petition No. 2962 of 2011

25th July, 2011

Petitioner Counsel: Shri Z.A. HAQ
Respondent Counsel: Shri A. DESHPANDE, Shri P.S. SADAVARTE

Cases Cited:
Letters Patent Appeal No. 114/2009 Dt.9.3.2011 [Para 11,13]
Gallapalli Nageswara Rao and others Vs. Andhra Pradesh State Road Transport Corporation and another, AIR 1959 SC 308 [Para 13]

JUDGMENT

JUDGMENT :- Rule, with the consent of the learned Counsel for the parties made returnable forthwith and heard.

2. The issue that arises for consideration in the above petitions is as to whether the Management Council of the respondent no.1 University is required to hear the petitioners prior to arriving at a decision based on the report of the Grievance Committee.

3. Shorn of unnecessary details, a few facts can be stated thus :

The petitioner no.1 is a Foundation, which has established the petitioner no.2 Dental College. The respondent no.5 in each of the above petitions were working with the petitioner no.2. The respondent no.5 in Writ Petition No. 2961/2011 has superannuated on 31/5/2007 whereas respondent no.5 in Writ Petition No. 2962/2011 has been dismissed from service pursuant to departmental enquiry, which was held against him and which culminated in the said dismissal order passed in the year 2010.

4. The respondent no.5 in each of the above petitions approached the Grievance Committee of the respondent no.1 University. The grievance of the respondent no.5 in Writ Petition No. 2961/2011 was in respect of non payment of gratuity and the arrears of salary of three years, which remained unpaid though he had retired on 31/5/2007. The grievance of the respondent no.5 in Writ Petition No. 2962/2011 was as regards non payment of difference of back wages and subsistence allowance. The said grievances of the respondent employees were considered by the Grievance Committee and the Grievance Committee submitted its report dated 27/7/2008 to the Management Council of the respondent no.1 University.

5. Insofar as payment of gratuity was concerned, the Grievance Committee issued a direction in that respect and in respect of contribution to be deposited in the Provident Fund Account of the respondent no.5 in Writ Petition No. 2961/2011 and also a direction in respect of amount of increment. Insofar as respondent no.5 in Writ Petition No.2962/2011 is concerned, similar directions were issued in respect of the alleged outstanding amount.

6. The Management Council of the respondent no.1 University which is established under Section 26 of the Maharashtra University of Health Sciences Act, 1998 considered the report of the Grievance Committee dated 27/7/2008 and accepted the said report in toto by passing a Resolution dated 25/9/2008.

Though the facts subsequent to the said decision of the Management Council are not relevant from the point of issue that arises for consideration in the above petitions, they have been mentioned to complete the narration.

7. The petitioners aggrieved by the said Resolution dated 25/9/2008 passed by the Management Council filed an Application for review. The said application of the petitioners came to be rejected by the Management Council by order dated 29/12/2008 inter alia holding that there was no provision for review. It appears that the respondent no.1 University thereafter vide its communication dated 12/2/2009 informed the petitioners that the directions of the Management Council dated 25/9/2008 have to be complied with. Thereupon the petitioners by their letter dated 23/3/2009 replied that some part of the directions are complied with insofar as respondent no.5 in Writ Petition No. 2961/2011 is concerned except the payment of gratuity, as according to the petitioners, the Teachers working with the petitioner no.2 were not entitled to payment of gratuity. In support of their claim that the payments have been made, the petitioners vide their letter dated 4/5/2009 sent attested copies of the receipts indicating that the payments have been made to the respondent no.5 in each of the above petitions.

8. It appears that thereafter on 7/7/2010 a show cause notice came to be issued to the petitioners by the Registrar of the respondent no.1 University as to why its affiliation should not be cancelled for noncompliance of the decision of the Management Council dated 25/9/2008. The said show cause notice was replied to by the petitioners by their letter dated 24/8/2011 whereby they requested for withdrawal of the show cause notice. It seems that the matter thereafter reached the Academic Council and the Academic Council in its meeting dated 2/11/2010 passed a Resolution directing the petitioners to comply with the decision of the Management Council dated 25/9/2008 and granted three months' time to the petitioners, failing which the petitioners were put to notice that the affiliation will stand withdrawn. This resulted in the petitioners filing Writ Petition No. 5121/2008 in this Court challenging the show cause notice dated 7/7/2010. This Court did not deem it fit to entertain the writ petition challenging the show cause notice and by leaving the contentions of the parties open, disposed of the said writ petition.

9. After disposal of the said writ petition by this Court, the Academic Council of the respondent no.1 University passed a Resolution that the affiliation of the petitioner no.2 will be withdrawn from the academic year 2011-2012, which was communicated to the petitioners by the forwarding letter dated 1/4/2011. The petitioners once again applied for recall of the said Resolution and prayed that they may be heard in the matter. In response to the petitioners' said request, on 12/5/2011 a letter was addressed to the petitioners on behalf of the Management Council informing the petitioners that hearing was fixed on 19/5/2011. It is the case of the petitioners that the said notice was received after 5 p.m. on 16/5/2011 when the office of the petitioner no.2 was virtually closed and the next day, i.e. 17/5/2011 being a holiday, the petitioners could not remain present for hearing on 19/5/2011 before the respondent no.1 at Nashik. This resulted in Application of the petitioners dated 4/5/2011 being rejected by the Management Council by order dated 19/5/2011 on the ground that there is no provision for review.

10. The aforesaid conspectus of facts unequivocally point out that the material decision in question is the decision dated 25/9/2008 taken by the Management Council pursuant to the report submitted by the Grievance Committee. The subsequent actions of withdrawal of affiliation, etc. are based on the said decision. It would, therefore, be apposite to consider the scheme of Section 53 of the said Act whereunder the decision in question has been taken. The said Section in its entirety is relevant and is reproduced hereunder for convenience sake :

"Section 53 - Grievance Committee -

(1) There shall be a Grievance Committee in the University to deal with the grievances of teachers and other employees of the University, Colleges, Institutions and recognised Institutions and to hear and settle grievances as far as may be practicable within six months and the Committee shall make a report to the Management Council.

(2) It shall be lawful for the Grievances Committee to entertain and consider grievances or complaints and report to the Management Council for taking such action as it deems fit and the decisions of the Management Council on such report shall be final. (Emphasis supplied)

(3) The Grievances Committee shall consist of the following members, namely:-

(a) The Pro-Vice Chancellor - Chairperson,

(b) Four members of the Management Council nominated by the Management Council from amongst themselves.

(c) The Registrar . Member-Secretary

(4) The Registrar shall not have a right to vote."

11. The principal submission of the learned Counsel for the petitioners Shri Haq is that the petitioners have not been heard prior to the Management Council taking a decision on the report of the Grievance Committee dated 27/7/2008. The learned Counsel would contend that considering the power that is vested in the Management Council as postulated in sub-section (2) of Section 53 of the said Act, it was incumbent on the Management Council to hear the petitioners and thereafter decide as regards acceptance or non acceptance of the report of the Grievance Committee. To buttress his submission, the learned Counsel for the petitioners relied upon the judgment dated 9/3/2011 passed by a Division Bench of this Court in Letters Patent Appeal No. 114/2009 and three companion matters. The Division Bench in the said cases was concerned with Section 57 of the Maharashtra Universities Act, 1994. According to the learned Counsel, the fact situation in the said cases before the Division Bench was akin to the case in hand and in the context of the pari materia provision, i.e. Section 57 of the Maharashtra Universities Act, 1994, the Division Bench held that it was incumbent on the Management Council to hear the Appellants in the said case and thereafter pass an order. The learned Counsel would contend that the said judgment of the Division Bench involving the pari materia provision would apply with equal force insofar as the present matter is concerned.

12. Per contra, it is submitted by Shri Deshpande, learned Counsel for the respondent nos.1 to 4, that the Division Bench in the said case did not take into consideration sub-section (1) of Section 53 of the Maharashtra University of Health Sciences Act, 1998 as no submissions were advanced, having regard to sub-section (1). The learned Counsel would contend that in view of the fact that the Grievance Committee under Section 53(1) is "to deal with" and thereafter "hear and settle the grievances" that are brought before it, further hearing cannot be read into subsection (2) of the said Section and, therefore, further hearing before the Management Council could not be granted to the parties. According to the learned Counsel, the judgment of the Division Bench rendered without considering sub-section (1) of Section 53 of the said Act is per incuriam. The learned Counsel would further contend that the Division Bench has also not considered the composition of the Grievance Committee in the Maharashtra University of Health Sciences Act, 1998 and the Maharashtra Universities Act, 1994 as also the powers of the Registrar.

13. Having heard the learned Counsel for the parties, in my view, the submissions of the learned Counsel for the respondent no.1 are bereft of any merit. The Division Bench in the judgment dated 9/3/2011 undoubtedly was concerned with Section 57 of the Maharashtra Universities Act, 1994. A bare reading of Section 53 of the Maharashtra University of Health Sciences Act, 1998, which is in contention in the present matters and Section 57 of the Maharashtra Universities Act, 1994 which was in contention in the said Letters Patent Appeals would ex facie disclose that the said provisions are pari materia. If on construction of a pari materia provision, the Division Bench of this Court has come to a conclusion that hearing has to be granted at the level of the Management Council, the submission of the learned Counsel for the respondent no.1 that the words appearing in sub-section (1) "to deal with" and "hear and settle the grievances", in my view, would make no material difference insofar as sub-section (2) is concerned. The Division Bench in the said judgment has held that the Grievance Committee may or may not hear the Management concerned. However, the scheme of the Act postulates that hearing has to be afforded by the Management Council when its takes up the report of the Grievance Committee for consideration, meaning thereby that the parties have to be heard in respect of acceptance or non acceptance of the report of the Grievance Committee. The relevant paragraph of the said judgment can be gainfully reproduced hereunder :

"7) We are of the considered view that under Section 57(2) of the Act, the Grievance committee is only empowered to hear grievances and prepare a report. It may or may not afford a hearing depending upon the nature of the controversy and the facts. On this aspect, the Supreme Court has made the following observations in the Chairman, Board of Mining Examination and Chief Inspector of Mines and another vs. Ramjee, reported in (1977 2 SCC 256) :-

'....... Natural justice is no unruly horse, no lurking land mine nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical, but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt - that is the conscience of the matter.'

The Grievance Committee after preparing the report must forward the report to the Management Council, which alone has been empowered to take the final decision and pass an appropriate order. Since the Management Council is conferred with this responsibility, it is clear that the Management Council can exercise this power only after hearing parties. What has happened in the present case is that the Management Council has not heard the appellants at all. This procedure has, therefore, resulted in a complete breach of the Rules of natural justice. In Gallapalli Nageswara Rao and others vs. Andhra Pradesh State Road Transport Corporation and another, reported in AIR 1959 SC 308, the Supreme Court observed as follows :

'31. The second objection is that while the Act and the Rules framed thereunder impose a duty on the State Government to give a personal hearing, the procedure prescribed by the Rules impose a duty on the Secretary to hear and the Chief Minister to decide. This divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats te object of personal hearing. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear up his doubts during the course of the arguments and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We, therefore, hold that the said procedure followed in this case also offends another basic principle of judicial procedure.

We, therefore, find that the impugned decision of the Management Council dated 24.4.2008 is void in law."

14. Insofar as submission of the learned Counsel for the respondent nos.1 to 4 that the composition of the Grievance Committee under the said two Acts is different as well as powers of the Registrar are also different is concerned, in my view, the same would also not make any material difference insofar as hearing to be granted by the Management Council is concerned. The defining words as can be seen from sub-section (2) of Section 53 of the Maharashtra University of Health Sciences Act, 1998 are that it is the Management Council, which is charged with the duty of taking a decision as it deems fit and such decision in terms of sub-section (2) of Section 53 is held to be final and binding. It is true that principles of natural justice are not to be put in a straightjacket formula, but it is equally well settled that whenever decisions have civil consequences for the parties, the parties are required to be heard. The submission of the learned Counsel for the respondent nos.1 to 4 that since hearing is granted at the level of the Grievance Committee, the Management need not be heard at the stage of the Management Council can, therefore, be only stated to be rejected.

15. In the light of the aforesaid, the impugned decision dated 25/9/2008, the order dated 2/11/2010 withdrawing affiliation and the order dated 19/5/2011 rejecting the Review Application filed by the petitioners are quashed and set aside and the matter is relegated back to the Management Council for hearing the parties on the report of the Grievance Committee. The parties to appear before the Management Council within four weeks from date. The petitioners to deposit an amount of Rs.2,71,978/- in this Court within the aforesaid time towards the dues of the respondent no.5 in Writ Petition No.2961/2011 and the said amount would lie in deposit till the decision is taken by the Management Council on remand. Insofar as claim of the respondent no.5 in Writ Petition No. 2962/2011 is concerned, the same would be contingent upon the decision of the Management Council. The parties would be allowed to file further material in support of their respective cases in respect of payment as well as non-payment of amount, before the Management Council. The deposit of the said amount in respect of respondent no.5 in Writ Petition No.2961/2011 would be a condition precedent insofar as hearing of the proceedings before the Management Council is concerned. If the said amount is not deposited, the benefit of this order would not enure to the petitioners insofar as the said Writ Petition No.2961/2011 is concerned. On remand, the Management Council to conclude the proceedings as expeditiously as possible.

16. Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs.

Petition allowed