BRIJ MOHAN SHARMA Vs. CHANCELLOR LUCKNOW UNIVERSITY LUCKNOW

JUDGEMENT

(1.) THE petitioner, Dr. Brij Mohan Sharma entered the service of the Lucknow University in October, 1933. For some time he worked as Lecturer. Later in 1948 he became a Reader and ultimately a Professor of Political Science in February, 1952. He also entered into an agreement with the University concerning his employment as a teacher of the University. On the 18th of March, 1936, his date of birth was recorded as 27th January, 1900. In 1956 the Executive Council of the University adopted a resolution providing that for the purposes of superannuation the age of a teacher as evidenced by the High School Certificate shall be accepted. According to such a certificate Dr. Sharma's date of birth would be 15th January, 1898, In April, 1957 the Executive Council whose attention had apparently been drawn to the difference in the two dates, the one recorded earlier in 1936, i.e., the 27th January, 1900, and the other as entered in the High School Certificate i.e., the 15th January, 1898, adopted a further resolution providing that the latter date shall be acted upon in the case of the petitioner. At the same time, it further decided that his employment shall continue upto the end of April, 1958. Dr. Sharma who apparently was not satisfied with this decision of the Executive Council wrote to the Chancellor stressing that his true date of birth was the 27th of January, 1900 and that he could not be superannuated earlier than the 27th of January, I960, This was done on the 12th November, 1958. A representation to the same effect had perhaps been separately made by him to the Vice-Chancellor of the University also. While the representation to the Chancellor was still undisposed of the Vice-Chancellor on the 24th December, 1958, decided in favour of accepting the 15th January, 1898, as his date of birth. THE representation to the Chancellor also was later rejected on the 1st April, 1959. THE prayer made in the above representation to the Chancellor was that an arbitration tribunal be appointed under Section 44 of the Lucknow University Act to decide the issues raised under the representation. THE Chancellor's reply which refused to grant the request of the petitioner was in view of it a refusal to appoint the tribunal contemplated by the above section. It is in this light that it has been treated by the parties also, though in giving his reasons for not appointing the tribunal the Chancellor has refuted the correctness also of the claim preferred by the petitioner. But with this aspect of the matter this Court is not presently concerned in these proceedings. Before coming to this Court the petitioner twice represented to the Chancellor to review his decision communicated on the 1st of April, 1959, but these representations were turned down, the one on the 18th July, 1959 and the second on the 8th August, 1959. THE relief claimed in the petition accordingly is a writ in the nature of certiorari quashing the aforementioned three orders.

(2.) THE learned Advocate-General for the Chancellor has raised a preliminary objection which may be stated in two parts. One part is that Section 44 under which the Chancellor had been approached placed no duty upon him to appoint a tribunal, on the other hand, the section merely provided the manner of constitution of what has been called a tribunal of arbitration, consisting of three persons, one to be appointed by the Executive Council, another to be nominated by the officer or teacher aggrieved and an umpire to be appointed by the Chancellor. THE Chancellor has no larger hand in the matter than the appointment of an umpire and it is to that extent alone that a legal obligation attaches to him. THE setting up of the tribunal is the joint responsibility of all the three persons, viz. the teacher or the officer concerned, the Executive Council and the Chancellor, and each is obliged independently of the other to perform his part of the duty. In other words Section 44 does not place any liability on the Chancellor to set up a tribunal if and when so required by any party. THE second part is that having regard to the provision in Section 44 read with Section 46 and Section 47 of the Arbitration Act, 1940, the petitioner's remedy against the refusal by any party to the dispute to constitute the tribunal of arbitration lies by an application under Section 20 of the Arbitration Act, 1940. THE instant proceedings under Article 226 or the Constitution, therefore, deserved to be' dismissed on the ground of alternative remedy.

(3.) SECTION 44 of the Lucknow University Act lays down, after providing the constitution of the tribunal of arbitration, that every dispute which is referred to such a tribunal for decision shall be deemed to be a submission to arbitration within the meaning of the Arbitration Act, 1940. It further provides that the provisions of the said Act, with the exception of SECTION 2, shall also apply to such proceedings. There cannot be any doubt in view of what is contained in the section itself, that the provisions of the Arbitration Act, 1940, are attracted in the case of arbitrations covered by the section. But independently of it also this will be so in view of SECTION 47 of the Arbitration Act which lays down that subject to the provisions of SECTION 46 of that Act and save in so far as might otherwise be provided by any law for the time being in force the provisions of the Arbitration Act shall be applicable to all arbitrations and to all proceedings thereunder. SECTION 46 to which SECTION 47 is subject says that the provisions of the Arbitration Act, except subsection (1) of SECTION 6 and SECTIONs 7, 12 and 37 shall apply to every arbitration under any other enactment, which will include arbitration under SECTION 44 of the Lucknow University Act also as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement, except in so far as the Arbitration Act might be inconsistent with such other enactment or any rules made thereunder. By virtue of the above provisions in the two enactments the Arbitration Act except certain sections referred to in SECTION 46 is applicable to arbitrations held under SECTION 44 of the Lucknow University Act.