The President of India in his capacity as the visitor of the Indira Gandhi National Open University (IGNOU) has been pleased to appoint Prof. Mohd Aslam, Prof. School of Continuing Education, IGNOU as the Vice-Chancellor for the period of five years.
Prof. Aslam functioned as Vice-Chancellor, IGNOU from October, 2011 to July, 2012. Earlier he was Director, SOCE, at IGNOU since January, 2009. He is Professor of Rural Development, School of Continuing Education (SOCE), IGNOU since May, 1992 and served as Director , National Centre for Innovations in Distance Education, IGNOU from Dec, 2006-Feb., 2009 and also earlier as Director, SOCE, IGNOU from May 1998-May,2001.. He served as Director (Trg) at the Centre on Integrated Rural Development for Asia & the Pacific based in Dhaka for 8 years.
Prof. M. Aslam has rich and varied experience both at national and international levels in University Administration; Distance & Continuing Education; ICT, Communication and Extension; Multi-Media in Distance Education; Training Methodology; Rural Development; Training skills; Monitoring and Evaluation; Panchayati Raj and Social Change from his 35 years career in the field, out of which he spent about 21 years as a Professor at IGNOU.
Dr. Aslam served as visiting faculty to as many as 16 institutions in India and abroad. Dr. Aslam is Fellow of the Economic Development Institute of the World Bank, Washington D.C. 1986. Prof. Aslam has authored/jointly authored seven books and three book chapters.
He has been consultant to various international/ UN bodies including the Food and Agriculture Organization (FAO) of the United Nations, UNDP.
He has worked as a Project Director for Panchayati Raj Project, developed a Multi-Media Distance Education package for Panchayati Raj functionaries elected throughout the country. The package was introduced among 58,000 elected functionaries of Panchayats in four selected districts of Madhya Pradesh and was conferred COL President’s Award of Excellence at PAN Commonwealth Forum in March, 1999.
Dr. Aslam has M.A. in Sociology with First Division and Second Position.(1973), He got his M.Phil. in 1975 and Ph.D. (Sociology) in 1978.
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Delhi High Court
Dr. P.R. Ramanujam vs Indira Gandhi National Open ... on 25 September, 2006
Author: J Malik
Bench: J Malik
JUDGMENT J.M. Malik, J.
1. The main controversy swirls sound the question, whether the petitioner, the then Director Staff Training and Research Institute of Distance Education(to be referred as STRIDE henceforth) is an employee of Indira Gandhi National Open University (to be referred as IGNOU henceforth) within the meaning of Section 2(f) of The Indira Gandhi Open University Act, 1985. In these proceedings the petitioner has challenged the Memorandum dated 7th September/October 2005, order dated 02.01.2006 and other consequential proceedings, issued by Vice Chancellor respondent No. 2. The relevant extract of the above said Memorandum reads the substance of the imputations of misconduct or behavior in respect of which the inquiry is proposed to be held is set out in the enclosed Statement of Articles of Charge.
2. Petitioner's case is this. The petitioner had suffered a severe polio attack at the age of 15 months, which affected both his legs, left hand and the right hand was partially affected. On 17.06.1993, the Board of Management took a decision to upgrade the Division of Distance Education into an Institute called above mentioned STRIDE. The STRIDE was also to be headed by an Executive Director in the pay scale of a Pro Vice-Chancellor. In October 1997, the petitioner was appointed as a Professor in Distance Education, persuant to the advertisement, dated January 1997. In August 2000, the petitioner joined as Director, STRIDE. Page 3150 On 10.08.2005, the petitioner's tenure as Director, STRIDE, came to an end and he came back to his cadre post as Professor in Distance Education, IGNOU. On 7th Sept./Oct. 2005, the above said Memorandum was issued by the Vice Chancellor of IGNOU. On 11.11.2005, the petitioner gave a representation and raised few objections. On 02.01.2006, the petitioner received two letters from the respondents appointing an Inquiry Officer and a Presenting Officer for conducting the inquiry. On 20.01.2006, the petitioner sent a reminder stating that no reply had been received by him to his representation dated 11.11.2005. The respondents fixed 06.02.2006 as the date for preliminary inquiry.
3. I have heard the counsel for the parties at length. In his written synopsis the petitioner has enumerated nine grounds, which according to him go to prove his case. Let each ground be discussed one by one.Ground No. 2
2. The Director is not covered by the definition of an employee or a teacher. There is no Statute framed governing the conduct and discipline of the Director. Ordinance No. 15 alone provides for the service conditions.
The key argument urged by the Ld. Counsel for the petitioner was that the whole gamut of facts, circumstances, Act, statutes and ordinances gives sufficient inkling towards the fact that petitioner was not an employee under IGNOU. He submitted that the appointment of the petitioner as Director, STRIDE was through selection and therefore, it was different from the appointment of professors as directors of schools on recommendation of the VC. Section 9 of IGNOU Act defines Director. The said section shows that following shall be the officers of the University:
(1) The Vice-Chancellor;
(2) The Pro-Vice-Chancellors;
(3) The Directors;
(4) The Registrars;
(5) The Finance Officer; and (6) such other officers as may be declared by the Statutes to be the officers of the University.
4. Again, Director also forms part of the body corporate under Section 3(3), which is reproduced as follows:
(3) The first Vice-Chancellor, the first Pro-Vice-Chancellors and the first members of the Board of Management, the Academic Council and the Planning Board and all persons who may hereafter become such officers or members, so long as they continue to hold such office or membership, are hereby constituted a body corporate by the name of the Indira Gandhi National Open University
5. The learned Counsel further argued that all the officers, only, have tenure appointments, unlike the employee or a teacher. Section 12 provides for the manner of the appointment of Director and his service conditions as prescribed by the Statute, Section 12 is reproduced:
12. Every Director shall be appointed in such manner, on such emoluments and other conditions of service, and shall exercise such powers and perform such functions, as may be prescribed by the Statutes Learned Counsel pointed out that no statutes have been framed in this context. Moreover, Section 12 has to be read with Section 24(b). Section 24 is reproduced as below.
Subject to the provisions of this Act, the statues may provide for all or any of the following matters namely:
(a) X X X
(b) the manner of appointment of Pro-Vice-Chancellor, Directors, Registrars, the Finance Officer and other officers, the emoluments and other conditions of their service and the powers and functions that may be exercised and performed by each of the officers;
(c) X X X
(d) the appointment of teachers and other employees of the University, their emoluments and other conditions of service;
(e)(f) X X X
(g) the procedure in relation to any appeal or application for review by any employee or student of the University against the action of any officer or authority of the University, including the time within which such appeal or application for review shall be preferred or made.
The learned Counsel for the petitioner pointed out that the distinct status of 'officer' is thus apparent from Section 24(g).
6. Moreover, Statute 4 of the Second Schedule provides that Director shall be whole time salaried officer of the University like Vice Chancellor/Pro-Vice-Chancellor/Registrar etc.. The relevant extract of Statute 4 of the Second Schedule reads as follows:
(1) Every Director shall be appointed by the Board of Management on the recommendation of
(i) the Vice-Chancellor, in case the candidate to be appointed is already a teacher of the University; and
(ii) a Selection Committee constituted for the purpose, in case the candidate to be appointed is from outside the University.
(2) Every Director shall be a whole-time salaried officer of the University:
Provided that one of the Directors shall be in charge of the administrative affairs of the teachers.
(3) The emoluments and other conditions of service of the Director shall be prescribed by the Ordinances:
Provided that a Director shall retire on attaining the age of sixty years.
(4) A Director shall exercise such powers and perform such functions as may be prescribed by the Ordinances.
7. It was contended that Ordinance 15 relates to service conditions and emoluments of the Director. The relevant provisions of Ordinance 15 are reproduced as hereunder:
1. In this Ordinance, the expression 'Director' means a Director appointed under Statute 4 but does not include Directors of Schools of Studies.
2. Every Director shall be appointed by the Board of Management in the manner specified in the Statutes and on a scale of pay of Rs. 4500-150-5700-200-7300, (pre-revised) or on such other scale of pay as may be determined by the Board of Management, from time to time. He/she shall, in addition to the pay in the scale mentioned above, be entitled to such other allowances as are admissible to the employees of the University from time to time.
5. Every Director, during his tenure, shall be entitled to leave, as admissible to the employees, of the University from time to time. Provided that when an employee of the University or a College affiliated to it or of any other University or a College affiliated to it or of any other University or institution maintained by or affiliated to such other University, is appointed as a Director he/she shall continue to be governed by the same leave Rules to which he/she was entitled prior to his/her appointment as Director till he/she continues to hold his/her lien on the post.
6. Every Director shall be entitled to traveling Allowance. Leave Travel Concession and Medical Attendance Rules as are admissible to the employees of the University from time to time.
8. Every Director shall be entitled to subscribe to the contributory provident fund of the University till the end of his/her tenure:
Provided that where an employee of the University or a college affiliated to it or of any University or Institution maintained by or affiliated to such other University is appointed as Director, he/she shall continue to be governed by the same retirement benefit scheme to which he/she was entitled prior to his appointment as Director or till he/she continues to hold his/her lien on that post, but under this provision, the pay for the purpose of subscription to the General Provident Fund and subscription to the University Contributory Provident Fund shall be the pay drawn by him/her as Director.
9. Every Director shall perform such functions and exercise such powers as may be assigned/delegated to him/her by the Vice-Chancellor and/or the Board of Management.
It was vehemently argued that ordinance clearly reveals that Director is different from the employees of University. It was pointed out that no Statute has been framed . Board of Management has not even framed any guidelines about officers' conduct/discipline etc.
8. The learned Counsel for the petitioner strenuously argued that a bare reading of these provisions makes it clear that:
(i) Director is an officer;
(ii) Director is appointed for a fixed tenure, and
(iii) In the present case, the petitioner was selected and appointed as Director for the said fixed tenure of 5 years.
(iv) Director (like Vice Chancellor, Pro-Vice Chancellor) is not an 'employee' or a 'teacher'.
(v) There is no statute governing conduct/discipline of the officers. Non -framing of statute inspite of mandate of the IGNOU Act renders the actions arbitrary, whimsical and unreasonable.
9. For the following reasons, I clap no importance to these arguments. Section 2(f) of the Act defines the word 'employee'.
(f) 'Employee' means any person appointed by the University, and includes teachers and other academic staff of the University The above said definition is comprehensive and complete. It is clearer than crystal that a Director is an employee of the IGNOU. This definition leaves no room for ambiguity. No separate definition of an officer finds any place in the said Act. The petition has failed to show that he was not appointed by the University. What one can garner from the above detailed provisions of law is that neither the Act nor the statute nor the ordinance makes any distinction between an officer or a director or an employee. The Legislature in their wisdom did not create any difference. If the intent of the Legislature was otherwise it would have made the distinction. The officer is inclusive of the word employee. It was not specifically mentioned that the employee should exclude an officer or director.
10. Ordinance 15 makes it clear that Director will be appointed by the Board of Management on the recommendation of Vice Chancellor and a selection committee. Board of Management according to Section 17(1) is the Principal Executive Board of the University. It is thus clear that Principal Executive Body of the IGNOU appoints a Director. Paras 2, 5, 6, and 8 of the Ordinance 15 do not make any distinction between a 'Director' and an 'Employee'. Both are treated at par. Para 9 goes to show that functions and powers of the Director are to be controlled by the Vice Chancellor and/or the Board of Management. This provision of Law is of utmost importance. It goes a long way to lull court's doubts.
11. Since University is the appointing authority hence it is also the controlling authority/disciplinary authority. No employee including a high ranking officer can have unbridled power. No employee or a high ranking officer can act in such a manner as though he was having functions of the University untrammelled by any limitations. No employee is free to act according to his whims and fancies.
12. It is difficult to fathom that in case he is not an employee of the University then what is his status? The Rights and the duties of the citizens are actually two sides of the same coin. One cannot demand one's rights without performing one's duties Misconduct or misbehavior is inconsistent with rule of Law. Rule of Law places restraints on individuals and on governments alike. This is a delicate, a fragile balance to maintain. It is fragile because it is sustained only by an ideal that requires each person in society, by an exercise of free will, to accept and abide the restraints of a structure of Laws. For all these reasons, the arguments urged by the learned Counsel for the petitioner must be eschewed out of consideration.
13. The learned Counsel for the petitioner drew the attention of the court towards the fact that Director may not be an employee of the University as according to Statute 4 enacted under the Act a Director can also be appointed from outside the University. This argument carries no value because employee means any person appointed by the University. Again, he is a whole time salaried officer of the University. Moreover, the petitioner is not an outsider prior to his appointment as a Director. He was a Professor in the same University. He still continues to be Professor in the same University. Even, if an outsider is appointed for a tenure of five years or so, he will be automatically an employee of the University for five years.14. Grounds No. 3 & 4
3. No disciplinary proceedings can be initiated against the petitioner after his tenure as Director was over (August 2000 to August 2005).
4. The petitioner was appointed as Director by the Board of Management. The Vice Chancellor had no power or jurisdiction to initiate the disciplinary proceedings after the petitioner ceased to be the Director.
The learned Counsel for the petitioner made the following submissions. After completing his tenure of five years the petitioner joined back as Professor on 10.08.2005. The memo of charges of 7th Sept/Oct 2005 was served after petitioner's tenure as Director was over. It was explained that Director like Vice Chancellor is a whole time salaried officer of the University and he is not sub-ordinate to the Vice Chancellor. Consequently, Vice Chancellor cannot have any disciplinary power over the Director. It was argued that it is well settled that no departmental proceedings can continue after the tenure is over. The relationship of Director with the University came to an end after the completion of tenure. This is akin to initiation of disciplinary proceedings against a person after his retirement, which is held to be a nullity. To bring home his point the learned Counsel for the petitioner cited authorities reported in State of Assam v. Padamaraman , V.J. Shelat V. State of Gujarat 1978 (2) Supreme Court Cases 2002. Again the Vice Chancellor had no power to issue the memo of charges because the petitioner was appointed by the Board of Management. Although, the article of charges are for the period when the petitioner was functioning as Director, yet, the word employee has been used maliciously by the Vice Chancellor to illegally usurp the power and victimize the petitioner.
15. His arguments do not sound very convinced. This is indeed a side show not the heart of the problem. His own later portion of the argument reveals the realism. This is an indisputable fact that petitioner was appointed as Director, STRIDE from 11th August, 2000 to 10th August, 2005. The University in the meeting Board of Management held on 16.11.2004 considered the matter of misconduct of the petitioner. In the said meeting the Board of Management appointed two members committee comprising Sh. Pawan Chopra, Former Secretary, Ministry of Information and Broadcasting, Govt. of India, Dr. N.S. Rane Gowda, Former Vice-Chancellor, Karnataka Open Page 3155 University. The Committee submitted its report to Board of Management vide its meeting held on 24.03.2005. The Committee gave a report that a prima facie case was made out against the petitioner. It is explained that the University took every care to eliminate all possibilities of bias, prejudice and mala fide by constituting a high level independent two members Committee. After receipt of the report the impugned memorandum was issued. In reply dated 11.11.2005 to the impugned memorandum, the petitioner himself requested that a copy of the said report be supplied to him for preparation of his defense. Even after completion of his tenure, the petitioner still continues to be the employee of the University. This must be borne in mind that the petitioner has not yet retired. He is still in the service. The petitioner has failed to allege any prejudice which may have been caused to him as result of issuance of memorandum after his tenure.
16. Grounds 5 & 6 & 8
5. The service conditions under the IGNOU Act/Statute are that of status and are protected by Articles 14, 16 and 21 of the Constitution. No arbitrariness, pick and choose policy or whimsical approach is permissible.
6. In the absence of Statute, no action can be taken even against an employee or a teacher, not to speak of Director.
8. The CCS(CCA) Rules apply only to non-academic staff(This argument is without prejudice to the submissions made above) not to academic staff, none at all to the directors.
In his synopsis the petitioner submitted that people governed by the Rule of Law should know where they stand. Rule of Law does not permit an action based on individual's whims and fancies, particularly when such an action results in civil consequences and is violative of someone's fundamental rights. People must know where they stand in law before they are subject to any adverse action. The IGNOU Act clearly mentions that the service conditions will be governed by the Statutes but no Statutes have been framed. No action can be taken contrary to statues. When law envisages an action to be done in a particular manner, it can be done only according to that manner. The service conditions of the petitioner are protected by Articles 14, 16 and 21 of the Constitution. The learned Counsel for the petitioner has cited four authorities in support of his case:
(i) S.G. Jaisinghani v. Union of India
(ii) Glaxo Laboratory v. Presiding Officer
(iii) D.T.C. v. D.T.C. Mazdoor 1991 Suppl (1) SCC 600
(iv) A.L. Kalra v. Projector Equipment Corporation Page 3156 The learned Counsel for the petitioner vehemently argued that the word misconduct has not been defined anywhere.
17. These arguments carry no conviction. According to the petitioner's own documents Annexure P-11 at page 109, the Establishment Committee vide EC2-14-1, adopted the CCS(CCA) Rules as also Fundamental Rules and Supplementary Rules for all its employees.(emphasis supplied) The relevant para is reproduced as hereunder:
To consider the proposal for adoption of Government of India rules on certain subjects until IGNOU frames its own Rules.
EC 2.14.1The Establishment Committee noted that the University, with the approval of the Board of Management, has been following Government of India Rules in certain subjects like Employees Group Insurance Scheme, Educational Assistance Rules, LTC Rules, grant of various advances to the employees, Medical Attendance Rules, House Building Advance Rules etc. The Committee approved the adoption of the following Central Government Rules till such time as the University frames its own rules on the subjects indicated below:
Applicable to all employees
1. CCS (Classification, Control and Appeal Rules).
2. Fundamental Rules and Supplementary Rules.
Application to non-academic employees (excluding teachers and other academic staff)
1. CCS (Conduct) Rules
2. Seniority Rules (As contained in Government of India, Department of Personnel & Training, OM No. 22011/7/86-Eshtt.) (D) dated 03.07.1989 as amended from time to time.
EC 2.14.2 The operation of any of the above rules are however, subject to the provisions of Act, Statutes and Ordinances or any decisions of the Board of Management taken from time to time in part or full on any of the subjects.
18. The said Resolution was adopted by the Board of Management on 17.05.1991 and later on it was incorporated in the Personnel Management Manual. The Board of Management while exercising its powers under Statute 7(2)(j) and 7(3) had adopted the above said Rules. The said provisions of law read as under:
7.Powers and Functions of Board of Management -
(2) Subject to the provisions of the Act, the Statutes and the Ordinances, the Board of Management shall, in addition to the other powers vested in it under the Statutes have the following powers, namely:
(j) to regulate and enforce discipline amongst the employees in accordance with the Statute and Ordinances;
(3) The Board of Management shall exercise all the powers of the University not otherwise provided for by the Act. Statutes, Ordinances and the Regulations for the fulfilllment of the objects of the University.
It is clear that the Board of Management is entitled to take any decision on any matter where the Statutes and/or the Ordinances are silent.
19. Statue 19 runs as follows:
(1) Where there is an allegation of misconduct against a teacher, a member of the academic staff or other employee of the University, the Vice-Chancellor, in the case of the teacher or member of the academic staff, and the authority competent to appoint (hereinafter referred to as appointing authority) in the case of other employee, may, by order in writing, place such teacher, member of academic staff or other employee under suspension and shall forthwith report to the Board of Management the circumstances in which the order was made.
(2) Notwithstanding anything contained in the terms of the contract of appointment or of any other terms and conditions of service of the employees, the Board of Management in respect of teachers and other academic staff, and the appointing authority, in respect of other employees, shall have the power to remove a teacher or a member of the academic staff, as the case may be, other employee on grounds of misconduct.
(3) Save as aforesaid, the Board of Management, or as the case may be, the appointing authority, shall not be entitled to remove any teacher, member of the academic staff or other employee except for a good cause and after giving three month's notice or on payment of three months' salary in lieu thereof.
(4) No teacher, member of the academic staff or other employee shall be removed under clause (2) or clause (3) unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
20. The Second Schedule Statues of University defines the Powers and Functions of Vice-Chancellor at point 2 which runs as follows:
(1) The Vice-Chancellor shall be ex officio Chairman of the Board of Management, the Academic Council, the Planning Board and the Finance Committee.
(4) The Vice-Chancellor shall exercise control over the affairs of the University and shall give effect to the decisions of all the authorities of the University.
(5) The Vice-Chancellor shall have all the powers necessary for the proper maintenance of discipline in the University and he may delegate any such powers to such person or persons as he may deem fit.
21. This is not the plea of the petitioner that by adoption of CCS(CCA) Rules and conducting the enquiry in accordance therewith he stands prejudiced. No miscarriage of justice has been suggested.
22. Learned Counsel for the petitioner vehemently argued that no rules have been framed governing the conduct of a Director as specifically provided by Section 12. Section 12 of Act specifically provides that conditions and service, the powers and the functions of a Director may be prescribed by the Statutes. Counsel for the Petitioner contended that since no Statute has been framed prescribing the conduct, which a Director is supposed to follow, therefore, the respondent University cannot initiate any action against the petitioner.
23. I see no merit in these arguments. The term misconduct is of a very wide connotation and cannot be limited by reducing it to words. Facts of each and every case are different. Misconduct in each case cannot have similarities. It is difficult to define the word misconduct. In N.G. Dastane v. Srikant S. Shivde and Anr. , the Apex Court was pleased to hold :
Misconduct envisaged in Section 35 of the Advocates Act is not defined. The Section uses the expression misconduct professional or otherwise. The word misconduct is a relative term. It has to be considered with reference to the subject matter and the context wherein such term occurred. It literally means wrong conduct or improper conduct
24. Similar view was taken in authorities reported in Noratammal Chouraria v. M.R. Murli and Anr. , M.M. Malhotra v. Union of India and Ors. , and State of Punjab and Ors. v. Ram Singh, Ex-Constable 1992(4) SCC 52 (paras 4 to 6).
Consequently, the arguments urged by the learned Counsel for the petitioner deserve no consideration.25. Ground No. 7
7. The petitioner being a wheel-chair user was subjected to discrimination and the inquiry after his tenure was over is a sheer victimization.
It was also argued that the predecessor of the petitioner was given the position of Executive Director/Pro-Vice Chancellor of the University vide decision of the Board of Management dated 17.06.1993. The petitioner was denied the above said position/status of the Executive Director/Pro-Vice Chancellor and even the autonomy of STRIDE was also taken away. The petitioner had protested against this action of the Vice Chancellor. He was appointed on the basis of his being an outstanding scholar having made significant contributions to the knowledge and development of open and distance education. However, the Vice Chancellor never wanted a wheel-chair user to occupy a high position and this bias resulted in the malafide action and discrimination. The petitioner has prepared a list to show that the said malafide is apparent from the following facts:
(i) Not allowing the petitioner to function as director of the autonomous body for the entire tenure;
(ii) Initiation of inquiry after the term of Director is over;
(iii) The manner in which the inquiry was initiated appointing a retired police officer (a person lower in status) as the Inquiry Officer, without following the rules and regulations;
(iv) The counter affidavit being replete with objectionable statements regarding the petitioner being a wheel-chair user.
(v) The counter affidavit also makes it clear that because the petitioner raised preliminary objections regarding maintainability, the disciplinary authority Vice Chancellor proceeded to appoint Inquiry Officer and Presenting Officer.
26. The petitioner partakes more of illusions than in reality in assuming that he is a victim of malafide action and discrimination. The petitioner was appointed in the University on 04.10.1986. He was appointed as Reader in June 1991. He was appointed Director, STRIDE on 15.08.2002, which is the second highest post in the University. His recruitment was made under general category. At the time when he was appointed in 1986 or 1991, the Act known as Persons with Disabilities(Equal Opportunities, Protection of rights and Full Participation), Act, 1995 had not come into existence. There is not even an inkling on the record which may go to show that the petitioner had raised this issue of bias at any stage. As a matter of fact this plea raised by him does not just stack up. The but and ben stance set up by the petitioner leads the court nowhere. On the one hand, he was posted at the second highest post of University and on the other hand, he alleges bias against the same person. If the Vice Chancellor is biased against the wheel chair user, why should he appoint him to such a high ranking post. His this very action speaks well for his honesty and bonafide intention. It appears that the petitioner's assumption is all wet.27. Ground No. 9
9. The only available forum under the IGNOU Act and Statute is Section 31 concerning Tribunal of Arbitration where Statute 30 has been framed regarding procedure for regulating the work of tribunal of arbitration. The Statute 30 which was made by the Board of Management in its 51st Meeting held on 19.06.1997 was approved by the visitor on 30.10.1998
28. Section 30 runs as follows:
(1) Every employee of the University shall be appointed under a written contract and such contract shall not be inconsistent with the provisions of this Act, the Statutes and the Ordinances.
(2) The contract referred to in Sub-section (1) shall be lodged with the University and a copy of which shall be furnished to the employee concerned.
Section 31 runs as follows:
(1) Any dispute arising out of a contract of employment referred to in Section 30 between the University and an employee shall, at the request of either party, be referred to a Tribunal of Arbitration which shall consist of one member nominated by the Board of Management, one member nominated by the employee concerned and an umpire to be nominated by the Visitor.
(2) Every such reference shall be deemed to be a submission to arbitration upon the terms of this section within the meaning of the Arbitration Act, 1940, and all the provisions of that Act, with the exception of Section 2 thereof, shall apply accordingly.
(3) The procedure for regulating the work of the Tribunal of Arbitration shall be prescribed by the Statutes.
Page 3160 (4) The decision of the Tribunal of Arbitration shall be final and binding on the parties, and no suit shall lie in any court in respect of the matters decided by the Tribunal.
Relevant port of Statute 30 runs as follows:
Temporary Employees with Less than Ten Years of Service 30.1 Terminal Gratuity A temporary employee, who retires on superannuation or is declared invalid for further service before completion of 10 years of service or is discharged on account of retrenchment, will be eligible for a gratuity at the rates indicated below Length of service Terminal Gratuity admissible 5 years and above but less than 10 years.
Half the amount of pay for each completed year of service Provided that the service is continuous and satisfactory.
29. Though this is an alternative argument but the arguments raised by the counsel for the petitioner are incongruous. On the one hand, it was argued that the petitioner is not an employee on the other hand Section 31 clearly specifically and unequivocally applies to the employees only. Section 31 brings the cat out of the bag. It shows inability of the petitioner to keep the real facts under the hat for all times to come. All these provisions should be read in conjunction with Statute 19(2) already quoted above. It all boils down to the irresistible conclusion that petitioner was an employee under the University. Section 31 deals with the terms and conditions of the contract. The petitioner has failed to show that conduct, misconduct or misbehavior come within the purview of the contract. Moreover, statues in this context, i.e. Persuant to Section 31(iii) have not yet been framed. Board of Management has already taken the decision that till the statues are framed, C.C.S rules will be applicable. Consequently all the other arguments pale into insignificance.30. Ground No. 1
1. The Departmental Enquiry at the very threshold is not maintainable; it is without jurisdiction/a nullity.
It was contended that the enquiry initiated against the petitioner is without jurisdiction, not maintainable under the provisions of IGNOU Act/Statute and is in violation of Articles 14, 16 and 21 of the Constitution. In support of his case, the petitioner has drawn the attention of the court towards three authorities which are reported as under:
(1) Calcutta Discount Co. Ltd. v. I.T.O. Companies District , wherein it was observed that where the action is without jurisdiction, a person be not subjected to lengthy proceedings and unnecessary harassment, the High Court will issue appropriate orders/directions to prevent such consequences.
(2) Carl Still GmbH and Anr. v. State of Bihar and Ors. .
Page 3161 (3) Whirlpool Corporation v. Registrar of Trade Marks which are to the same effect.
31. In view of above findings these authorities have no application to the facts of this case.
32. The writ is meritless and is dismissed. However, there would be no orders as to costs.