CHANDA SHIKSHAN PRASARAK MANDAL Vs. PARSHURAM MADHAV AWARI

JUDGEMENT

(1.) By this writ petition under Article 226 of Constitution of India, the petitioner number 1 management and petitioner number 2 Principal of the College run by it challenge the order dated 11th August, 2004 passed by the University and College Tribunal, Nagpur in Misc. application No. 23 of 2003 whereby the said Tribunal has condoned delay in filing appeal under section 59 of Maharashtra Universities Act, 1994 before it. The contention of petitioner is that the Tribunal functioning under Maharashtra Universities Act (hereinafter referred to as Universities Act) does not have jurisdiction to take cognizance of the termination of respondent number 1 which has taken place way back on 20th march, 1989 as proviso to section 59 of said Act expressly states that it has no jurisdiction if the cause of action has accrued at any time before the date on which said Act came into force if period for filing appeal has already expired. The respondent number 1 is out of employment since 1989 and hence the contesting parties urged for final disposal and accordingly advanced the arguments and also supplied Xerox copies of citations on record.

(2.) Petitioner number 1 is a society registered under the provisions of society's Registration Act and also a Public Trust registered as such under the provisions of Bombay Public Trust Act. It runs and manages the College of which petitioner number 2 is the Principal. Respondent number 1 herein was appointed as lecturer in zoology on 15 December, 1986 by petitioners and by the order dated 20th March, 1989 the then officiating principal of petitioner number 2 College informed him that his services would stand terminated with effect from 23rd April, 1989. This termination order was challenged by respondent number 1 by filing regular Civil Suit No. 135 of 1989 before Civil Court at Chandrapur on 19th April, 1989 for declaration that the order of termination was null and void. The petitioners state that the jurisdiction of Civil Court was objected on the ground that respondent number 1 has remedy of approaching College Tribunal which was then functioning under the provisions of Nagpur Universities Act. The second Joint Civil Judge, Junior Division, Chandrapur, decided this issue and other issues on merits and held that the Civil Court had no jurisdiction to take cognizance of the dispute and appropriate forum was College Tribunal. Hence on 2nd May, 2003 respondent number 1 preferred appeal under section 59 of universities Act before the University and College Tribunal (ref. to as Tribunal hereafter) at Nagpur. As there was delay in presenting said appeal, he also moved applications for condonation of delay which was registered as Misc. application no. 23 of 2003. Said application was opposed by petitioners on the ground that in view of proviso to section 59 (1) of the Universities Act which came into force on 22nd July, 1994, the University and College Tribunal had jurisdiction only to entertain the appeal of respondent number 1 if his termination has taken place after said date or within one month before said date. However, the learned presiding officer of University and College Tribunal has found that provisions of section 59 (3) of Universities Act permit it in appropriate cases to entertain appeal even after expiry of period of 30 days which is prescribed as limitation. Accordingly the University and College Tribunal by order dated 11th August, 2004 condoned the delay and directed registration of appeal for its hearing on merits. Rule. Rule is made returnable forthwith and heard finally by consent of the parties.

(3.) Advocate Chandurkar appearing for petitioners contended that the college Tribunal has exercised jurisdiction not available to it by condoning the delay. He argues that section 59 (1) which prescribes the forum, through its proviso create a bar and Tribunal cannot entertain the appeals, if the cause of action has accrued before coining into force of the 1994 Act i. e. Universities Act under which the Universities and College Tribunal is created if period of 30 days prescribed for filing appeal had already expired. He states that this is also clear from proviso to section 59 (2) and power to condone delay given by sub-section (3) cannot be used to expand the scope of its jurisdiction by Tribunal. He also invites attention of this Court to section 115 (2) clause 16 of Universities Act to urge that even this provision demonstrates absence of jurisdiction in Tribunal in the matter. He has relied upon certain cases to show how the proviso is to be viewed and interpreted.