Shri Balakrishna Patra vs Chancellor, Berhampur University and Another

R.N. Misra, J.—Under the Berhampur University Act (Orissa Act 21 of 1966) (hereinafter referred to as the "Act"), the Berhampur University has been set up. Petitioner was its Vice-chancellor from 17-6-1974 till 14-6-1977. For the period he was in service as Vice-chancellor. he had participated in the Contributory Provident Fund set up by the University. Under this Contributory Provident Fund Scheme, the employer too makes a contribution. Dispute had arisen as to whether the Vice-Chancellor was entitled to the Employer''s contribution and the same was resolved in favour of the Vice-Chancellor under Annexure-2 a letter dated 25-10-1973 from the Secretary to the Chancellor to the Vice-Chancellor of the University. When the same question arose in regard to the Vice-Chancellor of the Sambalpur University, the matter was examined again on the basis of the opinion given by the Law Department of the ''State Government and the Chancellor came to hold that the Vice-Chancellor was not entitled to the employer''s contribution. By a communication from the Secretary to the Chancellor dated 24/27-11-1975 (Annexure-3), the earlier communication was superseded. Petitioner thereupon not accepting the decision of the Chancellor asked for a re-examination of the question as per Annexure-4, but was informed under Annexure-5 dated 26/27-4-1977 that the Chancellor was not prepared to change his view. Thereupon this writ application has been filed calling in question the orders under Annexures 3 and 5 passed by the Chancellor of the University and for holding that Petitioner was entitled to the benefits of the Contributory Provident Fund.

A brief counter affidavit has been filed by the Deputy Secretary to the Governor (Chancellor) wherein it has been contended that the question for examination being one of law detailed factual allegations were not necessary, but an attempt has been made to justify the order.

Before examining the merits of the contentions advanced on behalf of the Petitioner, we propose to refer to certain provisions of the Act, the Statutes made thereunder and the Contributory Provident Fund Rules. Section 4 of the Act makes provision for officers of the University and admittedly the Vice. Chancellor is an ''officer''. u/s 6(10), the Vice-Chancellor is entitled to a salary of Rs. 2,000/- per month and to such allowances as the Chancellor may sanction from time to time and is also -entitled to a rent-free quarters. Section 22 of the Act provides the different subjects in regard to which provisions can be made by Statutes. The first Statute u/s 22(2) of the Act has been framed by the State Government. Clauses (i) and (j) of Section 22(1)(ii) of the Act provide:

(1) Subject to the provisions of this Act, the Statutes-

(i) ... ... ...

(ii) may provide for all or any of the following matters, namely:

xx xx xx

(1) the accounts to be kept and the use to be made of the Funds of the University;

(j) manner of recruitment of officers (other than the Vice-Chancellor), teachers and other employees and conditions of their service;....

Law 12 of the Statutes provides:

(1) When travelling on University business, the Vice-Chancellor shall be entitled to travelling and halting allowances on the same scales as admissible to the officers of Grade I under the Orissa Travelling Allowance Rules.

(2) The Vice-Chancellor shall be entitled to one month''s leave on full pay for eleven months of completed actual service subject to the condition that no leave shall accumulate beyond the term during which the leave is earned.

Chapter XIX of the Statutes deals with Funds of the University and Finance and Law 168 provides:

There shall be established and maintained for the benefit of the Officers, Teachers and other employees of the University, such Provident Fund as the Syndicate may deem fit.''

Rule 2(ii) of the Contributory Provident Fund Rules of the Berhampur University (hereinafter referred to as the ''Rules'') defines "Employee" to mean

... a person employed by the University as a all time employee and Includes the officer and teachers of the University but does not include a part-time employee of the University or a Government Servant in foreign service under the University. ..

Rule 7 makes the following provision:

All employees of the University who are in continuous service of one year shall be eligible to join the fund. The Vice-chancellor is also eligible to subscribe to the Fund;

Provided....

Under the Scheme, the Employer has to make its contribution and under Rule 9(2)(c):

The subscriber''s contribution shall be deducted from the salary or from wage'' bills as the case may be and made available to the Trustees along with the University''s contribution for credit to the individual account of the subscriber before the 15th of the month following that in which the subscriber''s contribution is deducted from his salary or wages.

There is no dispute that Shri R.P. Padhi (the first Vice-Chancellor) and Shri Justice A. Misra (Retired) who was his successor have been given the benefit which has been denied to the Petitioner. Under Annexure-1, Shri Justice A. Misra sent a note to the Chancellor meeting the objection of the Government Auditors in the matter of C. P. F. contribution paid to Shri R.P. Padhi. The communication under Annexure-2 from the Chancellor categorically states:

The Chancellor agrees with your views with regard to the C. P. F. Contribution paid to the Vice-Chancellor as well as to other employees of the University. ..

This decision in regard to the Berhampur University, as already indicated, was however, varied when the question of the Vice-Chancellor of the Sambalpur University being entitled to Employer''s contribution was examined. In Annexure-3, the advice given by the Law Department of the State Government has been indicated. Since the decision of the Chancellor has proceeded on the basis of the advice of the Law Department, we think it appropriate to extract the whole of it as found in Annexure-3,

On the ground that the v. Ice-Chancellor is a wholetime Officer and an employee as defined in Statutes 229(b), the Sambalpur University is of the view that the Vice-Chancellor is perhaps eligible to C. P. F. and Gratuity benefits. In their letter at p 3/c they have cited an instance of payment of University contribution to the successors of Dr. Patnaik who died while holding the office of the Vice-Chancellor.

Law 168, Statutes of the Sambalpur University, relates to establishment and maintenance for the benefit of the Officers, Teachers and other employees of the University such provident fund as the Syndicate may deem proper. In accordance with the aforesaid provisions the Syndicate of the Sambalpur University have framed a set of rules relating to Provident Fund and Gratuity for their teachers, officers and other employees.

Undoubtedly, the Vice-Chancellor is a whole-time Officer of the University Similarly the Chancellor is also declared to be an officer of the University in terms of Section 4(1). Therefore, that by itself cannot entitle the Vice-Chancellor to claim the benefit. Further, Sub-section (10) of Section 6 provides that the Vice-Chancellor shall be paid a salary of Rs. 2,000/. per month and such allowances as the Chancellor may be pleased to sanction from time to time and shall be entitled to rent-free quarters. Clause (j) of Sub-section (1) of Section 22 of the Sambalpur University Act provides that Statutes may be framed providing the manner of recruitment of officers (other than the Vice-Chancellor teachers and other employees and conditions of their service. This gives clear indication that the conditions of service of the officers of the University are not to be made applicable to the Vice-Chancellor. There can be no doubt that payment of Provident Fund contribution and Gratuity are conditions of service and they are retirement benefits That being what they are, they are outside the Statutes making power of the University in respect of the Vice-Chancellor. That apart, the Vice-Chancellor is a tenure post, appointment of which is made for a fixed term, and there is no question of his retirement. He ceases to hold office as soon as he completes the term. Considered from this point of view alone, the Vice-Chancellor should not be entitled to any retirement benefits. Further these benefits cannot be brought under the expression allowances within the meaning of Sub-section no of Section 6, so that the Chancellor may sanction them because of basic difference between allowances and retirement benefits. The practice followed in the Utkal University in this regard seems to be wholesome. There the Vice-Chancellor is not entitled to get any contribution from the University although he may subscribe upto a maximum of 25 per cent of his salary. In the Berhampur University, it appears that the matter has not been properly examined when a reference came to the Chancellor. Therefore, payment of the University share of the contribution to the successors of Dr. Patnaik and the practice followed in Barhampur University may not be taken as a good precedent for the interpretation of the provisions of law in the Sambalpur University Act and Statutes.

For the reasons stated above, this Department are of the view that the Vice-Chancellor, Sambalpur University is not entitled to C. P. F. benefit or Gratuity and the rules framed thereunder are not applicable in his case.

The above opinion of the Law Department has been accepted by the Chancellor.

Mr. Mohapatra for the Petitioner contends that all the reasonings indicated in the advice are erroneous and misleading and, therefore, the decision taken by accepting the advice is unsustainable. Though the Chancellor and the Vice-Chancellor are officers of the University in terms of Section 4 of the Act, there is no comparison between the two. u/s 5(1), the Governor of the State is the ex-officio Chancellor. u/s 6(1) of the Act, the Vice-Chancellor is a wholetime officer of the University. The Chancellor does not draw any salary from the University Fund while the Vice-Chancellor draws salary and allowances as provided in Section 6(10) of the Act. It is not the stand of learned Counsel for the Chancellor before us that Law 168 or the Rules are ultra vires. That being the position, while the Vice-Chancellor being an employee comes within the ambit of the Rules, the Chancellor not being such employee would not. Rule 7 of the Rules specifically authorises the Vice-Chancellor to be a subscriber to the Fund. In the circumstances, no support can be had for depriving the Vice-Chancellor from the benefit by contending that both the Chancellor and the Vice-Chancellor are officers of the University and since Chancellor is not entitled to the benefit of contributing to the Fund, the Vice-Chancellor would not be Section 22(1)(ii)(j) of the Act provides that the Statutes can make provision for manner of recruitment of officers (other than the Vice-Chancellor), teachers and other employees and conditions of their Service. According to learned Advocate General, appearing for the Chancellor, the Vice-Chancellor being one specie of officers has been entirely taken out of the purview of the Statutes by the phrase used in Clause (j) of Section 22(1)(ii) within the brackets. Mr. Mohapatra for the Petitioner on the other hand contends that if that was the true intention of the Legislature, the exclusion put within the brackets would have occurred at the end, so that qua conditions of service the exceptions would have been operative. We are inclined to agree with this submission. With a view to giving expression to its intention, the Legislature makes use of punctuation and brackets in its Acts. Sutherland in "Statutory Construction", 3rd Edn. Vol. 2, has observed ;

The better rule is that punctuation is a part of the Aft and that it may be considered in the interpretation of the Act but may not be used to create doubt or to distort or .defeat the intention of the Legislature. When the intent is uncertain, punctuation, if it affords some indication of the true intention, may be looked to as an aid. In such a case the punctuation may be disregarded, transposed, or the Act may be re-punctuated it the Act as originally punctuated does not reflect the true legislative purpose. An act should be read as punctuated unless there is some reason to the contrary, and this is specially true where a statute has been repeatedly fe-enacted with the same punctuation.

Reading the provision as it occurs in Clause (j) there is no scope to accept the View taken by the Law Department and as reiterated before us by learned Advocate-General that the exception put within the brackets intended to take away one specie of officers from the purview of the clause. If that were the true intention and conditions of service so far as the Vice-Chancellor was concerned were to be excluded, the proper place for the exception was at the end of the clause and not where it IS found. We must, therefore hold that the Act took away the manner of recruitment of the Vice-Chancellor from the purview of the Statutes. That is apparently so because special provisions have been made in Section 6 of the Act in respect of appointment (otherwise stated, recruitment) of the Vice-Chancellor. We are not prepared to accept the stand of the opposite party that by Statutes conditions of service of the Vice-Chancellor cannot be provided for. The Statutes cannot certainly provide conditions different from those which are in the Act itself, but there can he no bar for supplementing the conditions of service by Statutes. In fact, as already indicated, Law 12 of the Statutes makes some provision regarding travelling allowances and leave salary of the Vice-Chancellor and It IS conceded that these appertain to conditions of service. It follows, therefore, that the Statutes can make provision for contributory provident fund in respect of the Vice-Chancellor and the Rules made by the Syndicate can also deal with that aspect of the matter. Statutes have been made by the State Government and we cannot accept learned Advocate. General''s contention that the Chancellor had no knowledge of the Contributory Provident Fund Rules set up by the Syndicate. The Rules have specifically admitted the Vice-Chancellor to the benefits of the Fund. Since between Vice-Chancellor as an officer and other officers of the University, no distinction has been made under the Rules, there is no justification to hold that while the Registrar qua an officer would be entitled to certain advantages, the Vice-Chancellor who is similarly placed for all other purposes would not be entitled to that advantage. It would virtually be operating in a discriminating way If two officers similarly placed would be differently treated.

Before us, Mr. Mahapatra had contended that the Chancellor was precluded from deciding to the contrary and to the prejudice of the Petitioner by promisory estoppel because by the time Petitioner joined, the existing practice approved by the Chancellor was that the Vice-Chancellor was entitled to the benefit and on that footing the Petitioner started contributing to the Provident Fund. If he knew that the Employer''s contribution would not be available for him, he would certainly not have put his money here and would have found other convenient avenues for investment. He also contended that the Chancellor having already decided matter specifically with reference to the Berhampur University should have allowed the decision to stand and the same should not have been disturbed. We do not think, we need examine these aspects, once we hold that under the Rules the Vice-Chancellor is entitled to participate in the Contributory Provident Fund and there would be no justification to treat him discriminatingly from the other officers in the matter of Employer''s Contribution.

On the discussion indicated above, the only conclusion which can be reached is that the decision holding that the Petitioner was not entitled to the Employer''s contribution to the Contributory Provident Fund as envisaged 10 the Contributory Provident Fund Rules is contrary to law and cannot be sustained.

We would accordingly quash the decisions- in Annexures 3 and 5 and hold that the Petitioner is entitled to the benefit. A writ be issued directing the opposite parties to extend the benefits of the Contributory Provident Fund to the Petitioner and give him the Employer''s share with interest as provided in the Scheme under the Contributory Provident Fund Rules of the Berhampur University. There shall be no direction for costs.

N.K. Das, J.

I agree.

Petition allowed.