Professor M.S. M. Rawat (Retired Vice-Chancellor) vs Hemwati Nandan Bahuguna Garhwal University Srinagar & Another

Ramesh Ranganathan, CJ

Heard Mr. M.S. Bhandari, learned counsel for the petitioner and Mr. Paresh Tripathi, learned counsel for the respondents.

The dispute in this writ petition relates to the deduction of Rs.1,55,000/- from the gratuity payable to the petitioner as Head of the Department of Chemistry in Hemwati Nandan Bahuguna, Garhwal University (Central). It is the petitioner's case that he was sent on an official visit to China by the Vice-Chancellor of the University which was entirely funded by the University Grants Commission; a sum of Rs.1,55,000/- was paid to him as advance; he incurred the said expenditure, and furnished receipts as early as in the year 2008; despite which the said amount was deducted from his retiral benefits i.e. gratuity.

The case of the respondent-University, on the other hand, is that no receipts were furnished by the petitioner; and, since the advance paid to him of Rs.1,55,000/- remained unaccounted for till he retired, the said amount was recovered from the petitioner's terminal benefits.

We pointed out to Shri M.S. Bhandari, learned counsel for the petitioner, that disputed question of facts, such as whether or not the petitioner had in fact furnished receipts to the respondent-University for the advance of Rs.1,55,000/- given to him for his trip to China, would not, ordinarily, be examined by this Court under Article 226 of the Constitution of India, for these are all matters for which evidence is required to be adduced, and the petitioner's remedy is to approach the competent civil court.

Shri M.S. Bhandari, learned counsel for the petitioner would, however, contend that the petitioner had, in fact, availed the remedy of a suit by filing OS No.27 of 2016 before the Civil Judge (Sr. Divn.) at Pauri Garhwal; the said suit was dismissed by order dated 03.05.2018, on the ground of lack of jurisdiction; and dismissal of the suit was on the basis of the submission put forth by the learned counsel for the University. We, therefore, asked Shri Paresh Tripathi, learned counsel for the respondent-University as to how a suit is barred. Shri Paresh Tripathi, learned counsel for the respondent-University, places reliance on Section 33 of the Central University Act, 2009 to contend that the petitioner's remedy is to approach the Arbitral Tribunal under Section 33 (2) of the 2009 Act, and not by way of a Suit before the Civil Court.

The petitioner is entitled to have his grievances adjudicated in a legal forum. Section 9 of the Code of Civil Procedure stipulates that the Civil Court shall have jurisdiction to try all suits of a civil nature, excepting suits of which their cognizance is either expressly or impliedly barred.

Shri Paresh Tripathi, learned counsel for the University would submit that the suit is explicitly barred in view of Section 33 of the 2009 Act. The Civil Court dismissed the petitioner's suit, in O.S. No. 27 of 2016, relying on Section 33 of the Central Universities Act, 2009. Section 33(1) stipulates that every employee of the University shall be appointed under a written contract, a copy of which shall be furnished to the employee concerned. Section 33 (2) stipulates that any dispute, arising out of the contract between the University and any employee, shall be referred to a Tribunal of Arbitration consisting of one member appointed by the Executive Council, one member nominated by the employee concerned, and an umpire appointed by the Visitor. Section 33(3) stipulates that 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. Under the proviso thereto, nothing in sub-section (3) shall preclude the employee from availing the judicial remedies available under Articles 32 and 226 of the Constitution of India.

The submission of Shri Paresh Tripathi, learned counsel for the University, that the suit is barred in view of Section 33 (3) of the Central University Act, 2009 is, prima-facie, not tenable. Section 33 (1), as noted hereinabove, requires every employee of the university to be appointed under a written contract. Section 33 (2) requires every dispute arising out of such a contract to be referred to a Tribunal. The dispute, in the present case, relates to the advance of Rs.1,55,000/-, paid to the petitioner for his official visit to China. Such a dispute is, prima-facie, not referable to the contract of the appointment entered into between the university and the petitioner, at the time of his appointment, under Section 33 (1) of the 2009 Act. It is only such disputes, which arise out of the contract referred to in Section 33 (1), which are required to be referred to the Arbitral Tribunal referred to in Section 33 (2), and it is only in respect of such matters which have been decided by the Tribunal that a Suit is barred under Section 33 (3) of the Act. As the present dispute is not referable to the contract of appointment of the petitioner, prima-facie, the learned Judge, Senior Division, Pauri Garhwal may not have been justified in non suiting the petitioner, and in dismissing O.S. No.27 of 2016, on the ground that Section 33 (2) and (3) barred the jurisdiction of the Civil Court.

The fact, however, remains that the validity of the order passed in the said Suit can only be agitated by way of an appeal, and this Court would not set-aside the said order in proceedings under Article 226 of the Constitution of India, that too in collateral proceedings. Leaving it open to the petitioner to prefer an appeal against the order of the learned Single Judge, Senior Division in O.S. No. 27 of 2016, and to agitate his grievance before the Appellate Court, the writ petition fails and is accordingly, dismissed. No costs.