Gujarat High Court
Bhavnagar vs N on 23 December, 2010
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
Gujarat High Court Case Information System
Print
SCA/10269/1999 25/ 25 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10269 of 1999
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ? No
2
To be
referred to the Reporter or not ? No
3
Whether
their Lordships wish to see the fair copy of the judgment ? No
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? No
5
Whether
it is to be circulated to the civil judge ? No
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BHAVNAGAR
UNIVERSITY - Petitioner(s)
Versus
N
K OJHA - Respondent(s)
=========================================================
Appearance
:
MR
MITUL K SHELAT for
Petitioner
PARTY-IN-PERSON for
Respondent
=========================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 23/12/2010
ORAL
JUDGMENT
The petitioner, Bhavnagar University, has preferred this petition under Articles 226 and 227 of the Constitution of India, assailing the common judgment and order dated 11.08.1999, passed in Applications Nos.5/1998 and 2/1999, by the Gujarat Universities Services Tribunal, Ahmedabad ("the Tribunal" for short).
Briefly stated, the relevant facts as emerging from the record are that, the respondent - Shri N.K.Ojha, who has appeared as party-in-person, was appointed as Deputy Executive Engineer at the petitioner-University on 07.10.1991, on probation. The services of the respondent were confirmed on the post of Deputy Executive Engineer on 23.12.1992. The respondent applied for the post of University Engineer, at the M.S.University, Baroda. The respondent was selected and appointed on probation at M.S.University for a period of two years, by order dated 24.06.1996. He joined services at M.S.University on 19.07.1996. Under the provisions of the Ordinances and Statutes framed by Bhavnagar University, more particularly, clause (C) of Rule 8 of Ordinance 89, the respondent was required to give notice to the petitioner-University before leaving service. By letter dated 29.06.1996, the respondent requested the petitioner-University to waive the requirement of paying notice pay, and for permission to retain his lien at the petitioner-University for two years. The request of the respondent was considered by the Executive Council of the petitioner-University at its meeting held on 05.07.1996, and it was resolved that the respondent be relieved after office hours on 18.06.1996 to enable him to join M.S.University. The lien of the respondent was maintained for two years with effect from 18.06.1996. However, the request for waiver of notice pay was not acceded to, and the respondent was directed to deposit notice pay, equal to salary for two months and twelve days. In view of the fact that the respondent had intimated the petitioner-University regarding his joining the M.S.University at Baroda on 29.06.1996, and as he was relieved with effect from 18.07.1996, salary for 18 days was not deducted. In response to the Resolution passed by the Executive Council, as aforesaid, the respondent deposited an amount of Rs.6,000/- towards notice pay, on 18.07.1996. After joining M.S.University, Baroda, the respondent, vide letter dated 20.08.1997, requested the petitioner-University to transfer the total amount of his General Provident Fund ("GPF") to M.S.University, Baroda. In response to this letter, the petitioner-University wrote letter dated 28.09.1997, asking the respondent to clarify whether he did not want to return to the petitioner-University and wanted to have his lien terminated. Ultimately, the lien of the respondent was terminated on 10.11.1997. The respondent came to be confirmed as University Engineer at M.S.University, on 30.05.1998.
The respondent filed application No.5/1998 before the Tribunal, challenging the termination of lien and demanding refund of the amount of Rs.6,000/- paid by him towards notice pay. The said application was permitted to be withdrawn unconditionally, by order dated 28.12.1998 of the Tribunal, with liberty to approach the Tribunal in case of difficulty. The respondent again made a representation to the Executive Council of the petitioner-University for waiver of notice pay. This request did not find favour with the Executive Council, and was rejected. In view of the withdrawal of the application before the Tribunal, the services of the new incumbent holding the post of Engineer in the petitioner-University were confirmed by the Executive Council.
The respondent preferred an application before the Tribunal for revival of his earlier application No.5/1998 which was allowed. At the same time, the respondent preferred another application, being Application No.2/1999 challenging the decision of the Executive Council whereby, his request for waiver of notice pay was rejected. Both the applications were heard together and decided by the impugned judgment. The Tribunal, by the said judgment and order dated 11.08.1999, allowed the applications of the respondent and directed the petitioner-University to refund the amount of notice pay. Further, it imposed costs, quantified at Rs.14,000/- upon the petitioner-University. Aggrieved by the said judgment, the petitioner-University has approached this Court, by way of the present petition.
Mr.Mitul K.Shelat, learned advocate for the petitioner, has made elaborate submissions, to the following effect:
(i) The action of the petitioner-University in demanding notice pay of two months and twelve days from the respondent is wholly justified and is in accordance with the provisions of Clause (C) of Rule 8 of Ordinance 89, which stipulates that no employee shall leave the employment of the University without giving three months' notice, and in the event such notice is not given, the University will be entitled to claim the amount of basic-pay that is payable for the period of notice. The University is governed by its statutes and Ordinances and it was incumbent upon the respondent to pay the amount of notice pay. The University has taken a lenient view and directed the respondent to pay notice pay for a period of two months and twelve days only, considering the date on which the respondent informed the University regarding his appointment in M.S.University, Baroda. Having paid an amount of Rs.6,000/- towards notice pay for two months and twelve days on 18.07.1996, and having joined at M.S.University, Baroda, the respondent is not at all justified in demanding refund of this amount. The impugned judgment of the Tribunal, whereby the amount of notice pay has been directed to be refunded to the respondent is erroneous, as it has been passed without taking into consideration the relevant provisions of the Ordinance of the petitioner-University. The Tribunal has wrongly permitted revival of the earlier application of the respondent, in spite of unconditional withdrawal, and has passed the impugned order, without proper appreciation of facts or law. While passing the impugned order, the Tribunal has completely lost sight of the fact that demand of notice pay is the right of the employer, in the event that the employee leaves its services without giving adequate notice.
The employer has to make arrangements to fill up the vacancy created by the employee immediately in order to run its affairs. In any case, the relevant provisions of the Ordinance are clear and explicit and the action of the petitioner-University, being in accordance with the said Ordinance, cannot be faulted. There is no justification for ordering refund of notice pay by the Tribunal.
(ii)The lien of the respondent was terminated with effect from 10.11.1997, as it was evident from the request of the respondent for transfer of the amount of GPF to M.S.University, Baroda, that he did not intend to return to the petitioner-University. The petitioner-University had specifically sought clarification from the respondent to the effect whether he is not desirous of returning to the petitioner-University and wants his lien to be terminated. The request of the respondent for transfer of GPF was finally acceded to by the petitioner-University. The lien of the respondent was terminated, and he was informed accordingly. It is not the case of the respondent that he wanted to return to the petitioner-University. He has himself demanded transfer of the GPF amount. Had the respondent wanted to return during the period of lien, the petitioner-University was bound to accommodate him. The respondent was confirmed in M.S.University, Baroda, on 30.05.1998, as University Engineer. On that date, the lien of the respondent has automatically came to an end. The petitioner-University has terminated the lien of the respondent under the provisions of Section 11, sub-section 4, of the Bhavnagar University Act, 1978 ("the Act" for short) whereby the Vice Chancellor has been granted powers to take immediate action in case of an emergency. The said action has been ratified by the Executive Council of the petitioner-University. The Tribunal fell into error in not taking into consideration the fact that the lien of the respondent in the petitioner-University had automatically come to an end, on his confirmation at M.S.University, Baroda.
(iii)It is also not the case of the respondent at any stage that prejudice has been caused to him by termination of lien. In fact, no prejudice has been caused to respondent, who stood confirmed at M.S.University on 30.05.1998. This aspect has been ignored and overlooked by the Tribunal while passing the impugned judgment. The action of the petitioner-University is bona fide, and in accordance with law.
(iv)The Tribunal could not have examined the matter for award of damages/ compensation as has been done by it, on the erroneous premise that it is a Court of equity. The Tribunal has limited jurisdiction which is specifically delineated in Section 8 of the Gujarat University Service Tribunal Act, 1983 ("the Service Tribunal Act"
for short). The impugned judgment makes it clear that the Tribunal has awarded damages/compensation to the respondent for the alleged mental agony that he suffered, though in the form of costs. As the Tribunal has limited jurisdiction, this could not have been done, and resultantly, the direction to the petitioner-University to deposit an amount of Rs.14,000/- deserves to be quashed and set aside.
(v) The Tribunal has proceeded on a wrong premise that the action of the Vice Chancellor in terminating the lien of the respondent has not been ratified by the Executive Council. The respondent has been informed regarding termination of lien. The said action has been ratified by the Executive Council in its meeting on 21.11.1997 when all the issues pertaining to the respondent were discussed in detail.
(vi)The Tribunal has erroneously linked the issues of notice pay and lien, which have no relation to each other and has passed the impugned order by making certain observations regarding the Vice Chancellor of the petitioner-University and the alleged conduct of the University, which are not at all warranted, on the facts and in the circumstances of the case.
Opposing the petition, Mr.N.K.Ojha, the respondent party-in-person, has made detailed submissions, the gist of which is as follows:
I. The respondent was not supposed to pay notice pay to the petitioner-University as his lien was sanctioned. As the said lien was prematurely terminated he is entitled to claim refund of notice pay. The Tribunal has rightly ordered the refund of notice pay equivalent to 48 days and awarded Rs.14,000/- as costs, damages and compensation as the respondent has been running from pillar to post, for the past twelve years.
II. Lien was granted with effect from 19.07.1996 for two years and was wrongly terminated on 10.11.1997 by the Vice Chancellor of the petitioner-University. This action was not brought to the notice of the Executive Council. Initially, the post occupied by the respondent in the petitioner-University, which fell vacant on his joining M.S.University, was advertised as a lien post; however, in the subsequent advertisement, the word `lien' was missing. The new incumbent was appointed on 10.10.1997 and confirmed on 21.10.1997, when the lien of the respondent was terminated.
III.There was no justification for exercise of emergency powers under Section 11(4)(a) of the Act by the Vice Chancellor, for terminating the lien of the respondent, as no emergent situation existed for invocation of such powers. There is no document on record to show that the decision to terminate the lien by the Vice Chancellor was brought to the notice of the Executive Council. The respondent has not been informed regarding termination of his lien, otherwise, he would have approached the Executive Council within the stipulated period of time. Therefore, there is a violation of the principles of natural justice. There is also flagrant violation of the Act by the petitioner-University; for which reason, the respondent is engaged in litigation with the University for the last twelve years. Moreover, the respondent has faced a great deal of harassment, inconvenience, pain and mental agony due to premature termination of lien by the petitioner-University.
IV. The petitioner-University has tried to mislead the Tribunal and now it is trying to mislead this Court, as well. A false affidavit has been filed by the University by stating that the action of termination of lien by the Vice Chancellor was brought to the notice of the Executive Council. The action of the University in terminating the lien of the respondent is, therefore, null and void because the relevant provisions of the Act have not been followed, inasmuch as there was no emergency to terminate the lien of the respondent, and the matter has not been reported to the Executive Council. Therefore, the respondent is entitled for refund of notice pay and costs as has been rightly ordered, by the Tribunal.
V. When the lien of the respondent was terminated, he was still not confirmed in M.S.University, Baroda, therefore, prejudice has been caused to him. The respondent had requested for transfer of GPF to M.S.University from the petitioner-University because he had still not made up his mind. However, the respondent was confirmed in M.S.University on 30.05.1998.
I have heard Mr.Mitul K.Shelat, learned advocate for the petitioner and Mr.N.K.Ojha, respondent party-in-person, at length and in great detail, perused the averments made in the petition as well as the documents on record.
Regarding the issue of notice pay, the provisions of clause (C) of Rule 8 of Ordinance 89 of the petitioner-University are relevant, and are reproduced hereinbelow:
"(C) No employee shall leave the employment of the college without giving three months notice if he is confirmed or one months notice if he is on probation. In case, however, the employee does not given the required notice the management will be entitled to claim from him an amount not exceeding the amount of basic pay as may be payable to him for the period of notice. Shorter notice than above may be accepted by the management at its discretion."
As is clear from this provision, an employee who does not give three months' notice before leaving the employment of the University, is bound to pay an amount not exceeding the amount of basic pay as may be payable to him for the period of notice, to the University. Discretion has been vested in the University to accept a shorter period of notice than the period of three months. In the present case, the respondent has, by letter dated 29.06.1996, requested the University for waiver of notice pay. When an employee leaves the employment of the employer without adequate notice, the employer is put to some inconvenience due to the sudden vacancy. The concept of notice pay relates to the act of leaving services by the employee all of a sudden, without adequate notice. In order to indemnify the loss suffered by the employer and as a token of mitigation of the inconvenience caused due to the unexpected act of leaving, it is incumbent upon the employee to pay the amount of notice pay, as stipulated. In the present case, the Ordinance of the petitioner-University specifically provides for payment of notice pay by the employee. The respondent was required to give three months' notice before leaving the services of the petitioner-University. However, he gave only eighteen days' notice. Therefore, eighteen days' salary was not deducted and he was directed to deposit an amount of Rs.6,000/- as notice pay, equal to salary for two months and twelve days. The respondent did so on 18.07.1996.
There is no provision in the Ordinance for claiming refund of notice pay. The Tribunal, in the impugned judgment, has totally overlooked and ignored the provisions of clause (C) of Rule 8 of Ordinance 89, which deals with notice pay, and in doing so it has arrived at an erroneous conclusion, contrary to the provisions of the Ordinance.
From perusal of the impugned judgment of the Tribunal, it is evident that the Tribunal has wrongly linked the issue of notice pay to the issue of termination of lien. It was incumbent upon the respondent to pay notice pay on leaving the services of the petitioner-University as per provisions of the Ordinance. This act is prior in point of time than termination of lien and has no connection with it. The obligation of paying notice pay arises due to leaving of services without adequate notice. As the respondent has left the services of the petitioner-University without giving three months' prior notice as required by Clause (C) of Rule 8 of Ordinance 89, the provisions thereof apply squarely to him and no fault can be found with the University in demanding notice pay from him. The issue of notice pay cannot be linked with termination of lien, as has been done by the Tribunal in the impugned judgment. The direction of the Tribunal to the petitioner-University to refund the amount of notice pay is, therefore, wholly justified.
In order to understand the concept of lien, it would be helpful to advert to the relevant legal position in this regard. In Ramlal Khurana (Dead) By LRs. v. State of Punjab and Others - (1989)4 SCC 99, it has been held that:
"8. .......Lien is not a word of art. It just connotes the right of a civil servant to hold the post substantively to which he is appointed. Generally when a person with a lien against a post is appointed substantively to another post, he acquires a lien against the latter post. Then the lien against his previous post automatically disappears. The principle being that no government servant can have simultaneously two liens against two posts in two different cadres. It is well accepted principle of service jurisprudence."
In State of Rajasthan And Another v. S.N.Tiwari And Others - (2009)4 SCC 700, the Supreme Court has held:
"17. It is very well settled that when a person with a lien against the post is appointed substantively to another post, only then he acquires a lien against the latter post. Then and then alone the lien against the previous post disappears. Lien connotes the right of a civil servant to hold the post substantively to which he is appointed. The lien of a government employee over the previous post ends if he is appointed to another permanent post on permanent basis. In such a case the lien of the employee shifts to the new permanent post. It may not require a formal termination of lien over the previous permanent post.
18. This Court in Ramlal Khurana v. State of Punjab [(1989)4 SCC 99] observed that: (SCC p.102, para 8) ""8. ...Lien is not a word of art. It just connotes the right of a civil servant to hold the post substantively to which he is appointed.""
19. The term "lien" comes from the Latin term "ligament" meaning "binding". The meaning of lien in service law is different from other meanings in the context of contract, common law, equity, etc. The lien of a government employee in service law is the right of the government employee to hold a permanent post substantively to which he has been permanently appointed. (See Triveni Shankar Saxena v. State of U.P. - 1992 Supp(1) SCC 524)"
From the above enunciation of law, it is clear that when a person with a lien against a post is substantively appointed to another post, the lien that he held with regard to his former post disappears, and he acquires a lien against the latter post. In the present case, the petitioner-University permitted the respondent to retain lien for two years with effect from 18.07.1996 i.e. upto 19.07.1998. The respondent joined M.S.University, Baroda, on 19.07.1996. (24.06.1996 as per the arguments in rejoinder and 19.07.1996 as per the petition). The lien of the respondent was terminated on 10.11.1997. The respondent was confirmed as University Engineer in M.S.University on 30.05.1998. It is an admitted position that the respondent wrote letter dated 20.08.1997 to the petitioner-University, requesting that his GPF be transferred to M.S.University, Baroda. This communication is annexed as Annexure-M to the reply filed by the respondent. In response thereto, by letter dated 29.09.1997, the petitioner-University informed the respondent that he had lien for a period of two years from 19.07.1996 and only if he was not desirous of returning to the petitioner-University, could the amount of GPF be transferred to M.S.University, as per Rules. The respondent was specifically asked to clarify whether he is desirous of returning to the petitioner-University, or not. There is nothing on record to indicate what clarification, if any, was given by the respondent. Finally, the amount of GPF of the respondent was transferred to M.S.University, Baroda, as per his request. It is not the case of the respondent that he desired to return to the petitioner-University at any stage. The action of the petitioner-University in terminating the lien of the respondent prematurely, appears to have been motivated by his request for transfer of his amount of GPF to M.S.University, Baroda. Had the respondent desired to return to petitioner-University, he could have made such a request upto 30.05.1998 (the date on which he was confirmed at M.S.University). At no stage has the respondent approached the petitioner-University with such a request. From this, it is clear that he had no intention of returning to the petitioner-University. Upon his confirmation at M.S.University on 30.05.1998, the respondent automatically lost his lien in the petitioner-University and acquired lien at M.S.University.
The contention of the respondent that the petitioner-University did not inform him regarding termination of lien is not borne out from the record. Communication dated 26.11.1997 addressed by the petitioner-University to the respondent (annexed as Annexure-S to the reply filed by the respondent) shows that the respondent has been informed that his lien has been terminated on 10.11.1997. The respondent has further submitted that had he been informed that his lien was terminated by the Vice Chancellor, in exercise of provisions under the provisions of Section 11, sub-section 4 of the Bhavnagar Universities Act, 1978, he could have approached the Executive Council. This submission carries no weight, as it was open to him to approach the Executive Council, in any case, had he been aggrieved by such termination, at the relevant point of time.
The action of the petitioner-University in terminating the lien of the respondent prematurely can, at the most, be termed to be irregular, though it appears to be motivated by the demand of the respondent for transfer of his GPF amount. In the circumstances of the case, the said action would not amount to an illegality or a justification for refund of notice pay and imposition of costs on the petitioner-University in the absence of any material on record to show that prejudice has been caused to the respondent.
Regarding the contention raised by the respondent that the decision of the Vice Chancellor in terminating his lien in exercise of powers under section 11(4)(a) of the Act has not been ratified by the Executive Council, there is a specific averment in the affidavit-in-rejoinder that the Executive Council of the petitioner-University discussed the case of the respondent in detail in its meeting held on 21.12.1998. The extract of the Minutes of the meeting of the Executive Council dated 21.12.1998 have been annexed at running pages 147 to 149. The Minutes show that a detailed discussion regarding all the issues arising in the case of the respondent has taken place at the said meeting. This shows that the Executive Council had been apprised of all issues pertaining to the case of the respondent. Merely because there is no specific mention of lien, it cannot be assumed that the Executive Council was unaware of the decision in this regard. The contention of the respondent that a false affidavit has been filed by the petitioner-University cannot be accepted.
The provisions of Section 11 of the Act confer discretion upon the Vice Chancellor to take immediate action, if he finds that there are reasonable grounds to believe that an emergent situation has arisen, requiring such action to be taken. It is for the Vice Chancellor to decide whether, or not, to take such action. The respondent cannot take it upon himself to decide whether such power should have been used or not. The Vice Chancellor of the petitioner-University has acted within the bounds of discretion vested in him as per the Section and there is evidence to show that the case of the respondent was placed before the Executive Council and all issues pertaining to the same were discussed. It cannot, therefore, be said that there is a violation of the provisions of the Act, rendering the decision of termination of lien invalid.
Regarding the submission of the learned counsel for the petitioner-University that the Tribunal has wrongly assumed "equity jurisdiction"
while imposing compensation/ damages/ costs upon the petitioner-University, the provisions of Section 8 of the Gujarat University Service Tribunal Act, 1983, would clarify matter. It reads as below:
"8. Dispute to be decided by Tribunal - Where there is any dispute between the University and any University employee, which is connected with the conditions of service of such University employee, the University or, as the case may be, the University employee may make an application to the Tribunal for the decision of the dispute."
The Tribunal has jurisdiction to adjudicate any dispute between the University and any University employee, which is connected with the conditions of service of such University employee. The issues of notice pay and lien would fall within the jurisdiction of the Tribunal as they relate to conditions of service of an employee of the University. The Tribunal appears to have assumed the jurisdiction of a Court of equity, as a reading of paragraph-39 of the judgment indicates, and has entered into a discussion regarding damages and compensation payable to the respondent for "mental agony" suffered by him. However, ultimately it has imposed costs of Rs.14,000/- upon the petitioner-University to be recovered from its erring employees. As has already been stated hereinabove, there is no justification for doing so, therefore, it should suffice that this direction is set aside. There is no further requirement of elaborating on the question of jurisdiction of the Tribunal as it is not relevant to the issues involved in the petition.
The finding of the Tribunal that the principles of natural justice have been violated while terminating the lien of the respondent do not appear to be correct as the respondent himself has requested for transfer of GPF amount to M.S.University, Baroda, and was asked by the petitioner-University to clarify whether he wanted to return to the said University, or not. He was also informed regarding the termination of lien by the petitioner-University. In the circumstances, there is no breach of the principles of natural justice by the petitioner-University.
In view of the above discussion and for the above-stated reasons, the petition succeeds. The impugned judgment of the Tribunal dated 11.08.1999 is hereby quashed and set aside. Rule is made absolute. There shall be no orders as to costs.
(Smt.Abhilasha Kumari, J.) (sunil) Top