Dr. S.B. Dutt v. University of Delhi

SARKAR J.-This appeal arises out of a proceed- Sarkar J. ing for filing an award in Court ·and obtaining a judg- ment thereon. The award was made in respect of disputes between the appellant, a professor of the respondent, the University of Delhi, and the respondent. The dispute originally started many years ago and with the pas­ sage of time, increased in volume. A narrative of the disputes is necessary for the proper appreciation of the questions arising in this appeal and this we now proceed to give. On May 10, 1944, the appellant was appointed Pro­ fessor of Chemistry by the respondent. In August '1P48 the Government of India appears to have sanc­ tioned a scheme called the Selection Grade for a higher grade of pay for certain professors. T~e appellant cbimed to be entitled to the benefit of this scheme but it was not given to him by the respondent. This was the first dispute between the parties. In March, 1949, another professor, Dr. Seshadri, was appointed by the respondent the Head of its Department of Chemis­ try. The appellant contended that he was the Head of the Department and had been wrongfully supersed­ ed by the appointment of Dr. Seshadri as the Head. This gave rise to another disp11te. The appellant's case is that he tried to get this dispute solved by arbi­ tration under the provisions of the Delhi University Act, 1922, but was unable to do so owing to the obstructive attitude of the University authorities, and was, therefore, on October 18, 1949, forced to file a suit for a declaration that his removal from his posi­ tion of tl;te Head of the Department of Chemistry was illegal. The respondent in its turr. also had certain • complaints against the appellant for misconduct of more or Jess serious chalfacter into the details of which Dr. 5 · 8 · Dutt it is not'1!ecessar.y tp enter: It appears to have been _ Univmil:· of Dilhi agreed' between the parties in October 1950 that the Sa,kqr J. mutu~l grievances would be inve,stigated by Sir S. Vatda'Uhariar and Bakshi Sir Tek Chand and their decision was to be accepted as final and binding. In view of this agreement the appellant withdrew his aforesaid sriit on November 3, 1950. The investiga­ tion was thereafter held and a report submitted on March 1, 19ql, which appears to have gone substan­ tially against the appellant. The appellant contended that the investigation had not been fairly held and that the report was for this and other reasons defec­ tive and not binding on him. He actually made an application on March 26, 1951, to the Sub-Judge, Delhi, under s. 33 of the Arbitration Act, 1940, for a declaration that there was no arbitration agr.eement and hence the two referees had no jurisdiction to act or to make an award and, in the alternative, if there was an aw.ard, for an order setting it l}side. While this application was pending, the Executive Council of the respondent paSSIJd ~ resolution on April 26, 1951, terminating the appellant's service as a pro­ fessor of the University in view of the findings against him in the I'eport of the investigators. On February 11, 1952, the Sub-Judge, Delhi, dismissed the applica­ tion under s. 33 on the ground that the agreement as to· the inve~tigation by Sir S. Vardachariar and Bakshi Sir Tek Chand of the .mutual grievances was not a submission to a:rbitration and, therefore, no ~pplica­ tion under s. 33 or the Arbitration Act lay. An appeal to the High Court.was dismissed on April 22, 1953, for the same reason. . What we have stated so ·far: gives the history of the disputes between the parties. We now. proceed to the event.fl with which we are immediately conperlted in this appeal. On April 28, 1953, the appellant wrote a letter to too respondent 'Claiming, under the provisions ofs. 45 • of the Delhi University Act, an arbitration with re­ gard to various djsputes mentioned in it. 'that sec­ tion is in these terms : . '"' 1 (. I~ . • r S.C.R. SUPREME COURT REPORTS 1239 " Section Js. ' Any dispute arising out of.'a contract between the Univ:ersity and any qfficer or teacher of the University Dr. 5 ·.~· Dutt shall, on the request of the officer or teacher concern- u .. iversity of Delhi ed, be referred to a Tribunal of Arbitration consisting of ont! member appointed by the Executive Council, Sarkar J. one member nom_inated by the bfficer or teacher con- cerned, and an umpire appointed by the Chmicellor. - The decision of the Tribunal shall be final and no suit shall lie in any Civil Court in respect of the matters decided by the Tribunal. Every such request shall be deemed to be a submission to arbitration upon the terms of this section, within the meaning of the Arbitration Act, 1940, and all the provisions of that Act, with the exception of section 2 thereof, shall apply accordingly." By .that letter the appellant appointed Professor M. N. Saha, the celebrated scientist, now deceased, an arbitrator and catled upon the respondent to nominate another arbitrator. The disputes raised in this letter . were, (a) that the appellant had been wrongfully deprived of the selection gtade; (b) that by the appointment of Dr. Seshadrj, as the Head of the D"epartment of Chemistry, the appellant had been wrongfully superseded; (c) that bis dismissal was wrongful. A copy of this letter was sent to Professor Saha. .On May 2, 1953, the appellant again wrote to the -respondent calling attention to the fact tb,at he had already appointed Professor Saha an arbitrator and requiring it to appoint an arbitrator ·within fourteen clays as provided under the law. On May 7, 1953, the respondent wrote to the appellant that his letter of April 28, 1953, had been considered by its Executive Council on April 30, 1953, and that· .the Council, for the reasons mentioned, to which it is not necessary to refer, did not propose to take any action in the 111atter. Thereafter, on May 18, 1953, the appel­ lant addressed a further letter to the respondent in which he stated, "as the said University had failed for 15 clear days to appoint after the· service of my said notice", meaning·l:is- notice of May 2, 1953, "on • the University, please take notic~ t!:iat I hereby 1240 SUPREME COURT HEl'ORTS [1959] r958 appoint. Profossor )1. X. Saha arbitrator appointed hy mo to act as th" sole arbitrator and gi\·e his a\l·ard." J>.. s."IJ. Dull The appellant also wrote in similar terms to Professor u,.,,,,,,,,J: of Dtll•i Saha asking him to proceed with the reference as ho - had become the sole arbitrator. On ;\lay 24, 1053, Sa•·k•• J. Professor Saha wrote t-0 the respondent stating that as he had been appointed the sole 11rhitrnt.or by the appel­ lant, he fixed J unc 15, 1953, for the hearing of the case. On June 12, I !l:i3, the respondent. wrote to Pro. fossor Saha intimating that it had been ad\'ised that t.lw appellant had no right t.o call for an arbitration and that the respondent did not. recognise him (Pro. fcssor Saha) as an arbitrator and also that he had no juris<liction to act as one. ~otwithstanding this Pro­ fessor Saha started the arbitration proceedings on .June 16, l!l.53. The respondent appeared by a lawyer before Professor Saha and repeMed its objection to his jurisdiction to act as an arbitrator. Profrssor Saha overrnlcd the respondent's objection and held that he had jmisdiction to act as the sole arbitrat-0r w hernuL1011 the rcprcsentati1·es of the respondent retired from the proceedings which were then continued in their absence. < Professor Sah1t made 'l.n award which iodated June 17, l!J5:3. The material portion of the award is 'in these terms : "The points requiring determi1mtion by rue arc as follow8 :- 1. Whether the Selection Grade of Professors was ri"hll\' withhel<I in the case of Dr. S. B . .D11tt. when it, ~ .. was gin•n to all other profcssorn of his standing and seniority. 2. Whether Dr. S. B. D11tt wa8 appointed Prn­ fes8or and Head of the Chemist.ry Department of the Unin>rsity and was rightly rl'll10Yed from the Head­ ship. 3. Whether the dismissal of Dr. Dntl hy a rcsolu. tion passP<l by the Executil'e Couneil 011 the 26th April, 1!)51, was mala fide and illegal 1ind therefore wrnngful :.nd i:icffectuaL 4. \Vhethcr Dr. Dutt was haras,;ed by the officials of th~ Gnh·ersity and its effect. > <. ·-. -I • • S.C.R. SUPREME COURT REPORTS 1241 After givif1g the case my careful and earnest z958 attention I find : : v s B v 11 (a) The steps for giving the Selection Grade of '· ·v. · " Professors of the University to Dr. S. B. Dutt were Unfoersity of Delhi wrongfully and without just cause not taken by the Unive"rsity and he has therefore been wrongfully Sarkar J. deprived of the Selection Grade . .> (b) The terms of appointmeut of Dr. Dutt were that he would be also the Head of the Chemistry I Department. His removal from Headship was wrong­ ful. ) (c) Dr. Dutt was wrongfully dismissed. His dismissal was ultra vires, ma/,a fide and. has no effect on his status. He still continues to be a professor of the Uuiversity. (d) He has been subjected to harassment." At the request of the appellant, Professor Saha filed the award in the Court of the Sub-Judge, Delhi, on June 24, 1953. The respondent took various objec­ tions to it. The Sub-Judge overruled these objections . antl passed a decree on May 27, 1954, making the award, excepting a small portion thereof with which this appeal is not concerned, a rule of Court. The respondent filed two appeals 'from this decree, one in the Court of the senior Sub-Judge, Delhi, and the other in the Court of the District Judge, Delhi, as it was in doubt as to which was the proper Court to which the appeal lay. By an order made on November 26, 1954, the High Court withdrew both these appeals to itself for trial, and by its judgment dated January 15, 1955, allowed the appeals and set aside the award on the gro,und that it disclosed an error on the face of it. The present appeal is against this judgme11t. Two points have been raised in this appeal, one by the appellant and the other by the respondent on a matter decided against it which will be referred to later. The• appellant contends that the High Court was wrong in its view that the award disclosed an error on the face of it. The High Court had hdd that it w~s not open to the arbitrator "to grant Dr. Dntt a , declarati~n that he was still a professor in the Univer-. . 1242 SUPRE::IIE COURT REPORTS [1959] sity which no Court could or would gi~·e him." The High Court felt that •,thi;i declaration amounted to Dr. S. H. Dutt v. specific enforcement of a contra.ct. of personal sen·ice Unimsity of Delhi which was forbidden by s. 21 of the Specific He lief Stirkr1t J. Act ancl therefore disclosed an errol' Oil the face of the a wan'!. We n.re in entire agreement with the vi1~w expressed by the High Comt. There is no donbt that a contral't of personal service cannot be specifically enforced. Section 21, Cl. (b) of the Specific H-elief Act, 1877, and the second illm;tration under this cl:iuse given in the section make it 80 clear that further elaboration of the point is not required. It seems to us that the pre8ent award docs purport to enforce a contract of perRonal sen·ice when it stt•tcs that the dismissal of the appel­ lant "ha8 no effect on his status", and" He still con­ tinues t-0 he a Professor of the Uni~ersity ". When u decree is p1i;;sed according to the award, which if tl!C' a,ward is unexceptionahlc, ha8 to be done under 8. Ii of the Arbitration Act afler it has been.filed in Court, that decree will dircet that the award be carried out , and hence direct that the appella,nt be treated as still in the sen·ice of the rcspomlent. It would tlwn enforee a contract of persomtl scrvict', for t.he iippella~1t daimed to he a profoRsor under a contract of person:d service, and 80 offend s. 21 (b). It was sa,icl that this might make the award erro­ neous but that was not enough; before it could be set aside, it had further to he shown that the error appeared on the face of t.he award. The learned eou11sel contended t h[l,t no error appeared oi1 the face of the award as the rcawning for the deciHion. was not stated in it. It was saicl that this was laid down in the well-known case of Champsey JJhara & Co.,-, Jin·aj Balloo Spinning and W wving Co. Ltd. ('). We were referred to the obsen·ations occurring in the judgmeut at p. 331 to the following effect: "Au error in law on the face of the awarcl 0 mcans, in their Lordship's view, that you can find in the a.ward or a docmment actually incorporakd thereto, as • for instance a note appended by the arbitra~r stating (1) (1923) L.R, 50 1,A. 321 • • • •. ..... • • S.C.R. SUPREME COURT REPORTS 1243 • the reasons for his judgment, some legal proposition which is the basis of the awa-i-d and which you can then say is erroneous." · · n,. s. B. Dull We are unable to agree that the Judicial Committee Universi~ of Delh · laid qown the proposition that the learned cou11$el for _ ' the appellant ascribes to them. When they referred Sarkar J. to the reasons for the judgment, they were contem- plating a case where the judgment, that is, the award itself, did not disclose an error but the reasons given for it in an appended paper, did. They did not intend to say that no error can appear on the face of an award unless the reasons for the decision contained in the award were given in it. In our view, all that is necessary for an a ward to disclose an error on the face of it is that it must contain, either in itself or in some paper intended to be incorporated in it, some legal proposition which on the face of it and without more, can be said to be erroneous. This was the decision of the Judicial Committee in the Champsey Bhara &: Co. Cll.$e ('). As the award in this case directs specific enfor.0 ement of a contract of personal service, it in- volves a legal proposition which is clearly erroneous . • Another point raised on behalf of the appellant was that the portion of the award which held that his dis­ missal had no effect on his status and that he con­ tinued to be a professor was merely consequential and hence a surplusage and therefore an error disclosed in it would not vitiate the award. This contention seems to us to be unfounded. The award held that the appellant had been dismissed wrongfully and mala fide. Now, it is not consequential to such a finding that thti dismissal was of no effect, for a wrongful and mala .fide dismissal is none the less an effective dismis­ sal though it may give rise to a claim in damages. The award, no doubt, also said that the dismissal of the appellant was ultra vires but as will be seen later, it did tlot thereby hold the act of dismissal to be a nullity and, therefore, of no effect. We are also clear in our mind that the contention about th¥ offending portion of the a ward being a mere surplusage affoJ'ds (<) (192J) L.R. 50 I.A. 324. 158 . . 1244 SUPREME COURT REl'ORTS [1959] • no assist1111cc to the appellant for it was not said on his behalf that the offending portion was severable Dr. s.v~· Dutt from the rest of the award and should be struck out as Unimsity of Delhi a mere surplusagc. It., therefore, has to remain as a -- part of the award and so long as it does so, it ~rnuld Sorhar J. disclose an error on the face of the award and make it liable to be set aside as a whole. It was then contended that a declaration that the appellant continued in his service under the respon­ dent in spite of his dismissal by the latter was a decla­ ration which the law pcrmitwd t-0 be made and was not therefore erroneous. It was said that such a declara­ tion had in fact been made bv the Judicial Com mittce in 'l'he High Cmnm1'.ssicmer jar India v. I. M. Lall('). This contention, in our view, also lacks substan~e. That was not a case based on a contract of per;;onal sen·ice. Indeed the contr:ict of the respondent in that case provided that the service was "to continue during the pleasure of His )fajesty, His Heirs and Successors, to be signified under the hand of the Sec;·e­ tary of State for India". The respondent had been dismissed by an order made under the hand of the Secretary of Stato for Indi:i, and as he was liable to be dismissed at the pleasure of the Crown, he could base no corpplaint against his dismissal on the con­ tract of service and did not, in fact, do so. He found­ ed his suit on the claim that his dismissal bv the Crown from the Indian Civil Service of which he was a member, was void and of no effect as certain manda­ tory provisions of the Government of India .A.ct, 1935, had not been complied with. The Judicial Committee accepted this claim and thereupon .made the dcelara­ tion that the purporte'l dismissal of the respondent was void and inoperative and he remained a member of the Service at the date of the institution of his snit. The declarntion did not enforce a contract of personal service but proceeded on the basis that the diamissal could only be effected in terms of the statute and as that had IU>t been done, it was a nullitv, from which tlie result follo,;·ed that the respondent had continued • in sen-ice. All that the Judicial Committ~ did in • • .. S.C.R. SUPREME COURT REPORTS 1245 this case was lo make a declaration of a statutory invalidity of an act, which is r; thing entirely different f "' . t t f ] . Dr. S. B. Dutt rom en1orcmg a con rac o persona servrne. The learned counsel for the appellant also referred Universi~ of Delhi us to Ram Kissendas Dhanuka v. Satya Charan Law (1), - in suf>port of his contention that the declarati'bn in Sarkar J. the form made in the award was legal.. That was a case of a suit by the minority shareholders in a com- pany against its directors for a declaration that an ordinary resolution of the company terminating the appointment of its Managing Agent was void and in- operative inasmuch as under art. 132 of the Articles of Association of the Company the Managing Agents could be removed by an extraordinary resolution only. The High Court had declared the resolution to be void and inoperative. The Judicial Committee maintained that declaration and rejected the argument that "to affirm the continuance in force of the Managing Agent's appointment amounted to specific enforcement of the contract of personal service and was a violation of"s. 2l(b) of the Specific Relief Act, 1877." It is quite clear to us that this decision has no application to the case in hand. That was not 11' case in which specific performance of a contract of service was sought. In fact the servant, that is to say, the Managing Agent, was not a party to the action at all. As the Judicial Committee observed: "It (the decree) merely pre- vents dismissal of the managing agents or termination of their appointment at the instance of a majority in violation of the articles of association of the company which the' minority are entitled tcr have observed. As between the company and the ·managing agents it certainly has not the effect of enforcing a contract of personal service." It was a case, as the .Chief Justice of the Ca,lcutta High Court said in his judgment, in Ram Kissendas v. Satya Charan(') at p. 331 "not to enforc'" a claim to employment with an employer, but a suit to prevent third persons interfering with the Company's employees who. are carrying out their con- tract of service with the company. In other words, it is not a suit to enforce a contract, but a suit to prevent the procurement of a breach of contract." To ' . . (1) (1949) L. R. 77 !. A. 128. (2) (1945) 50 C.W.N. 33t. such a suit, of course, s. 21 of the Spec~fic lfolief Act has no application. ~ v,_ s.vu. v .. 1t The learner! counsel for the appclln.nt. also contended r.:•ivmity of v11;1 that the present ease was a case of au ultra i·ires act Satkar J. as J. lrf. Lall's case(') was and "therefore governerl by the s\me considerations. He relied for this purpose on that portion of the award which heir! that the "appellant's dismissal was ultra vires ''. We find no basis for this contention. No point as to the dismissal of the appellant being ultra vi res harl been referred to the arbitrntor. The points for rlccision set out by the arbitrator do not refer to any question of the dismissal being ultra i·ires. Again the letter of the appellant, dated April 28, 1953, setting out the disputes of which he required decision by arbitration does not make 0\1t any case that the dismissal of the appellant by the respondent was ultra 1:ires the latter's incorporating statute. His point about the dismissal wa.s that it had been malicious and therefore wrongful ; that it had benn brought about by a resolution of t•he Exrcutiye Council of the respondent on the basis of the report ((!,!so called aw(l,rrl) of the investigatorn, Sir S. \'(l,rdn­ ch<1riar anrl Bakshi Sir 'J.:ek Chand, procured by the Vice-Chancellor, Dr. Sen, by denying to the members of the Council any opportunity to discuss the merits of that report." His case on this point in his own words was this: "Vvhen the award was put before the Exccutirn Council Dr. Sen definitely prohibited all discussions of it on the gronnrl that it was an award and s11pprcssed those who desired to comment on it-, feeling as they did that the decision, specially in the matter· of the supposedly altered telegram was open t-0 grave doubts. In regard to this, question" were asked hut not answered. If Dr. Sen had not wrongly disallowed discussion, I venture to say that the Council would noi have 11greed to a dismissal, or at any event (l,ny allegation of moral turpitude." It ~s clear fherel'ore that the appellant. was challenging ,his dismissal on t-he ground that the Vice-Ch,ancellor, Dr. Sen, who, .he sp.id, was inimically disposed towards (1) (1948) L.R. 75 l.A. 225 . .. ,. y S.C.R. SUPREME COURT REPORTS 1247 him, had shut ~ut all discussion on the question and procured a resolution for the diimissal of the appellant, and that because of such malicious and wrongful bar- Dr. 5 · B. Dutt ring of discussion, the resolution was wrongful. It was universi~ of Delhi not the appellant's case before the arbitrator that the - dismissal was ultra vires the statute or otherw'ise a Sorkor .f. nullity. We also find that this point was not advanced iu the courts below. The last point raised ou behalf of the appellant was based ou s. 45 of the University Act. The terms of that section have been earlier set out. The contention of the learned counsel is that since the section says that any dispute arising out of a contract between the University and any officer or teacher of the University shnll, on the request of the officer or teacher concern­ ed, be referred to a Tribunal of Arbitration, a dispute as to dismissal and a claim to reinstatement might be referred to arbitration under it, and if that could be done, then, the award might properly direct the dis­ mi;'!sed profesror to be reinstated. For this part of his · argument the learned counsel referred us to Western India Automobile Association v. Industrial Tribunal, Bombay (1). It had been held, there that an Industrial Ti·ibunal had power in an award made on a reference under the Industrial Disputes Act, 194 7, to direct reinstatement of discharged employees. The learned counsel referred us to the following observation occur­ ring in the judgment of the Federal Court at p. 332 : " Any dispute connected with the employment or non-emplo.Jment . w~uld ordinarily cover all matters that require settlement between workmen and em­ ployersf and whether those matters concern the causes of their being out of service or any other question and it would also include within its scope the reliefs necess~ry for bringing about harmonious relations between the employers and the workers." It was.contended that, as in the Western India Auto­ mobile Association case (1), the words "any dispute " in s. 45 of the University Act would include a dispute as to a claim for reinstatement and wouh.l therefore give the arbiti;ator power to order reinstatement. We do , not think that any analogy can he drJJ,wn from the (1) [1949] F.C.R. 321, 1248 SUPREME COURT J{EPORTS [1959] wording of the Industrial Disputes Acf. That Act is concerned with consideyations which arc peculiar to it. Dr. S. H. D14tt 'Th d b v. e procee ings efore a Tribunal constituted under Uuitmity of nelhi that Act can11ot: be said to be a.rbitrat.ion proceedings - nor its decision an award, though called an award in Sarka. J. the /kt, in the sense in which the words "arbih'ation proceedings" and "award" are usl'd in the Arbitra­ tion Act. An award under the Industrial Disputes Act cannot be filed in Court nor is there any provision for applying to Court to set it aside. All considerations that apply to an award under the Industrial Disputes Act, c1tnnot be said to apply to an award made under the Arbitration Act. Furthermore, under s. 45 of the University Act, the arbitration held un1!1,r it is to be governed hy the provisions of the Arbitration !kt, 1940, and the validity of an award made under such an arbit.ratio11 has, therefore, to he decided by reference to the rules applying t-0 that Act, one of such rules being that the award should 11ot disclose an error on its face. For these reasons, in our view, this argument is unfounded. ' This disposes of all the points raised on behalf of the appellant 11nd bringH us ,to the contention raised on behalf of the respondent. That contention was that the appointment of Professor Saha as thP 80lc Arbitrator was illegal." · It was said that the respondent claimed t-0 appoint. Professor Salrn the sole arbit.rntor under s. 9 of the Arbitration Act but t.hat. section could onlv 1tpply where the reference was to two arbitrators, on-e to be itppointcd by each party," while the proper interpretation of s. 45 of the Uni,·crsity Act 'was that the arbitration was to t.hrce Arbitrators, 011e nominat­ ed by each of the parties n,nd the third by the Chan­ celler of the University. ThiH poi11t was decided against the respondent by the High Court. AH, however, the appeal must he dismissed for t.hc reason that the award contains an error on the face of it, as we have earlier found, it becomes unnt!cessary to decillo the point raised by the respondent. We, therefore, do not exyiress any opiriion on this q1;1esti?n.. . , In the result this n,ppeal 1s drnm1ssed w1.th costs throughout. Appeal dismissed .