PRAKASH RAJMAL BALDOTA Vs. UNIVERSITY OF BOMBAY

JUDGEMENT

(1.) By this writ petition under Art. 226 of the Constitution the petitioner is challenging the order or decision contained the letter dated 24 February, 1966 whereby his services as a research assistant in the Department of Law of the respondent-university were terminated from 1 March, 1966.

(2.) The petitioner, who has passed his LL.M. examination of the respondent-university, applied for a post of research assistant in the Department of Law of the university in the month of July, 1961 and on 22 November, 1961 he was appointed to that post on probation for a period of one year in the first instance in the grade of Rs. 160-15-250. As a research assistant his duties were to assist in the research work of the department and to carry out such other duties as may be assigned to him by the head of the department. Soon thereafter the petitioner registered himself as a candidate for Ph.D. degree in Law on or about 6 December, 1961 and pursued the studies for the said course under Prof. Irani who was the head of the department. According to the petitioner, after the expiry of the period of one year, though the respondent-university did not issue any letter expressly confirming him to the said post of research assistant, since his services were found to be satisfactory by the respondent, he must be deemed to be confirmed, inasmuch as he continued in service for quite a long period without extension of the probationary period. It is the petitioner's case that one Prof. S. P. Sathe, lecturer in the Department of Law went abroad on a study-leave in or about September, 1964 and on the recommendation of Prof. Irani, which was accepted by the syndicate, he was appointed to act as an officiating lecturer, in the Department of Law on 3 October, 1964 and he lectured to LL.M. students in that capacity up to 15 March, 1965. On 1 April, 1965 he was paid the salary for the entire month of March, 1965 according to the grade applicable to officiating lecturer, but on 1 May, 1965 he was called upon by the assistant accountant of the respondent-university to refund the difference of salary for the post of research assistant and the officiating lecturer for the period from 16 March, 1965 till 31 March, 1965 on the footing that he was supposed to have been reverted back to his substantive post of research assistant, inasmuch as the leave of Prof. Sathe had come to an end on 15 March, 1965. The leave vacancy, according to the petitioner, continued without any break up to 1 September, 1965 and he ought to have been allowed to officiate in the said post or deemed to have continued to officiate in the said post without any break till then. By his letter dated 25 June, 1965 the petitioner submitted to Registrar that leave of Prof. Sathe had been extended and as such that extension should ensure for his benefit and that Doctor Sethna, who was in charge of the Department of Law at that time (Prof. Irani being on leave) intended to recommend his reappointment in the continued leave vacancy in case the university tool the view that the appointment of the petitioner had automatically come to an end in the said officiating post on 16 March, 1965 and that therefore, he should be paid salary of a lecturer from 16 March, 1965 onwards. The Registrar however, rejected his submissions. The petitioner's case further is that on his return from the study-cum-lecture tour on 5 July, 1965 Prof. Irani told him that he (Prof. Irani) would recommend reappointment of the petitioner to the said offsetting post provided the petitioner did not press his claim for vacation salary mentioned in his letter dated 25 June, 1965. This attitude of Prof. Irani, according to the petitioner, was unfair inasmuch as Prof. Irani tried to coerce him into giving up his claim for continuity of his services in the said officiating post. On 30 July, 1965 the petitioner, therefore, addressed a letter to the Registrar, which contained an appeal to the syndicate to reconsider his claim to lecturer's salary and allow him to officiate in the said post or that he be appointed to the said post as from 21 June, 1965 onwards. In August, 1965 at the instance of the Registrar, Prof. Irani told him that he (petitioner) would be chargesheeted and even discontinued as a student for Ph.D. degree unless the letter dated 30 July, 1965 was withdrawn by him. On 5 November, 1965 a chargesheet was received by the petitioner from the Registrar of the respondent calling upon him to show cause why his services as a research assistant should not be terminated for the grounds mentioned therein. Two charges were levelled against the petitioner, first, that the work of the petitioner as a research assistant had not been satisfactory in that he had not submitted any research work done by him during the period of his service to the university and the petitioner was, therefore, considered unsuitable for working as a research assistant and secondly that the petitioner had committed an act of gross insubordination in that in his letter dated 30 July, 1965 addressed to the Registrar he had made false and scandalous allegations against the head of the Department of Law of the university. By his letter dated 17 November, 1965 the petitioner submitted his explanation and made his representations against the chargesheet. He pointed out that the charges levelled against him were vague and that he was not able to make out his defence in the absence of relevant documents being made available to him, particularly the comments made by Prof. Irani on the petitioner's letter dated 30 July, 1965 to the Registrar while forwarding it to the Registrar. However, the Registrar of the respondent-university by his letter dated 24 February, 1966 informed the petitioner that the university had decided to terminate his services as a research assistant and that he was thereby discharged from the service as from 1 March, 1966 and that he will be paid one month's salary in lieu of notice. The petitioner is challenging this termination of his services as a research assistant on two grounds. In the first place, he has contended that the provisions of the Bombay Services (Conduct, Discipline and Appeal) Rules (Appendix II, Art. 4) have been violated and the order has been passed without following the principles of natural justice and rules of fairplay and that the entire inquiry has been in the nature of a farce. Secondly, he has contended that the order has been passed mala fide and not in good faith.

(3.) A preliminary objection as to the maintainability of the petition has been raised by Sri Porus Mehta on behalf of the respondent-university. He has urged a twofold argument. In the first place, he has contended that the respondent-university is a statutory body and the relationship between the petitioner and the respondent-unversity is purely that of a master and servant on the basis of contract of employment and the petitioner could not be regarded as being in civil service or holding any civil post in State service and as such cannot avail himself of Art. 311 of the Constitution. He has further urged that since the petitioner is not a civil servant, a petition for writ under Art. 226 of the Constitution would lie only if the petitioner is able to satisfy the Court that the respondent-university has committed a breach or violated any statutory obligation imposed upon it, and this case since it cannot be said that any statutory obligation imposed upon the university has been violated or committed breach of, the petition for a writ is not maintainable and if at all the petitioner has any grievance on account of breach of any terms of contract of employment by the respondent-university, he is free to take appropriate action by way of a suit against the university. Secondly, he has urged that several disputed questions of fact arise in the case especially on the plea of mala fide raised by the petitioner and therefore, this Court should not entertain the petition but refer the petitioner to a suit where all these disputed questions of fact could be gone into by a civil Court. Since these points go to the root of the matter, Sri Mehta urged upon me to decide them first without going into the merits of the petition.