Chittatosh Mookerjee, J.@mdashThe Appellants at the material time were the office-bearers members of the Governing Body of the Birla College
of Science and Education (hereinafter called the College) which was affiliated to the Calcutta University.
2. On March 17, 1977, the Principal of the said College had made a written complaint against the Respondents Nos. 5 and 6 regarding an alleged
incident dated March 15, 1977. According to the Appellants, the Governing Body of the College by a resolution dated May 24, 1977, had
resolved to initiate an enquiry against the Respondents Nos. 5 and 6 on the basis of the said complaint of the Principal of the College. It is further
alleged that the Honorary Secretary of the Governing Body in pursuance of the alleged direction of the Governing Body had issued show-cause
notice upon the Respondents Nos. 5 and 6. A Board of Enquiry was also purported to be appointed to enquire and submit a report in respect of
the allegations and the charges framed against the Respondents Nos. 5 and 6. It is not necessary for our present purpose to refer to the
correspondence between the Appellants and the Respondents in respect of the said purported enquiry. According to the Appellants, on
September 28, 1977, the Board of Enquiry submitted a report against the Respondents Nos. 5 and 6. On September 30, 1977, the findings of the
Board of Enquiry were placed before a meeting of the Governing Body of the College. The Governing Body accepted the said findings and
resolved that the penalties of dismissal from service be imposed upon the Respondents Nos. 5 and 6 on the ground of their being engaged in
activities prejudicial to the academic interests of the College. On September 30, 1977, the Secretary of the Governing Body of the College had
communicated the said dismissal orders to the Respondents Nos. 5 and 6. The Respondents Nos. 5 and 6, against the said dismissal orders, had
purported to prefer appeals to the University of Calcutta u/s 12 of the West Bengal College Teachers'' (Security of Service) Act, 1975 (hereinafter
called the Act).
3. According to the Respondents, the Syndicate of the Calcutta University had delegated to the Vice-Chancellor of the University the authority to
hear the said appeals preferred by the Respondents Nos. 5 and 6 against their dismissal from service. On September 30, 1977, on the
representation of the General Secretary of the West Bengal College and University Teachers Association, the Vice-Chancellor of the Calcutta
University had stayed the orders of dismissal of the Respondents Nos. 5 and 6 till the University had looked into the matter. On October 3, 1977,
the Inspector of Colleges, University of Calcutta conveyed the said order to the Honorary Secretary of the Governing Body of the College. The
present Appellants being aggrieved by the said order of stay granted by the Vice-Chancellor, Calcutta University moved this Court under Article
226 of the Constitution of India and obtained C.R. No. 6422(W) of 1977. The Respondents contested the said Rule.
4. On January 4, 1978, Amiya Kumar Mookerji J. made C.R. No. 6422(W) of 1977 absolute on the ground that the order of stay dated
September 30, 1977, was passed in breach of the principles of natural justice inasmuch as no hearing was given to the College Authorities or the
teachers concerned before passing of the said order. But the learned Judge further held that the University had the power to grant stay of the order
appealed against by the teachers u/s 12(2) of the above Act. The learned Judge observed that nothing would prevent the University from passing
fresh orders with regard to the appeals of the Respondents Nos. 5 and 6 in compliance with Section 12(2) of the West Bengal College Teachers''
(Security of Service) Act, 1975. The present Appellants have preferred an appeal under Clause 15 of the Letters Patent against the said judgment
of Amiya Kumar Mookerji J. in C.R. No. 6422(W) of 1977 and the same is still pending.
5. On January 5, 1978, the Inspector of Colleges, Calcutta University, addressed a letter to the Honorary Secretary of Birla College of Science
and Education, inter alia, stating that he had been directed by the Vice-Chancellor, Calcutta University to give them notice to show cause before
the Vice-Chancellor why appropriate orders for preserving the status quo or other appropriate orders in connection with the appeals of the
Respondents Nos. 5 and 6 should not be made. The College authorities were given liberty to submit both personal and written representations and
on January 7, 1978, the Secretary of the Governing Body of the College on behalf of the Governing Body addressed a letter to the Inspector of
Colleges. The Secretary disputed the power of granting stay by the Vice-Chancellor and also the authority of the University or the Vice-Chancellor
to entertain the appeals of the Respondents Nos. 5 and 6. The Secretary also made written submissions on the merits of the two appeals and
against the granting of interim orders in favour of the two Appellants. On January 9, 1978, the Vice-Chancellor, Calcutta University, heard the
Appellants and a representative of the Governing Body of the College. The Vice-Chancellor ordered that the Birla College of Science and
Education shall maintain the status quo ante, that is to say, to maintain the position as it was prior to September 30, 1977, with regard to the
services of Dr. B.P. Singh and Dr. Roy Choudhury till the final disposal of the appeal. The Vice-Chancellor by the same order also directed the
Appellants to produce certain additional materials. He also directed the College authorities to submit the original records relating to the disciplinary
proceedings against the two dismissed teachers. The Vice-Chancellor of the University of Calcutta had fixed the hearing of the two appeals on
January 30, 1978.
6. Thereupon, the present Appellants filed an application under Article 226 of the Constitution of India, inter alia, praying that the order of the
Vice-Chancellor dated January 9, 1978, be quashed and the Respondents be commanded not to give any effect or further effect to the said order
dated January 9, 1978. On January 8, 1978, Amiya Kumar Mookerji J. was pleased to issue C.R. No. 2411(W) of 1978 and to grant interim
orders. Subsequently, the interim orders were modified and the Vice-Chancellor was given liberty to dispose of the two appeals of the
Respondents Nos. 5 and 6 subject to the decision in the said Civil Rule. The Vice-Chancellor by his order dated February 14, 1978, allowed the
said two appeals, set aside the dismissal orders and made an order for re-instatement of the Respondents Nos. 5 and 6.
7. On May 3, 1978, Amiya Kumar Mookerji J. disposed of the said Rule. The learned Judge quashed the orders of dismissal passed against the
Respondents Nos. 5 and 6 and all proceedings'' including the orders of the Vice-Chancellor passed upon the appeals preferred by the
Respondents Nos. 5 and 6. The learned Judge, inter alia, held that unless the appellate Tribunal u/s 14 of the West Bengal College Teachers''
(Security of Service) Act, 1975, was set up by the State Government, the provisions of the said Act would not be given effect to inasmuch as the
provisions of the Act constituted a single scheme. His Lordship further made it clear that his said order shall not prevent the members of the
Governing Body of the College from taking any steps whatsoever against the teachers (meaning the Respondents Nos. 5 and 6) under any other
law for the time being in force if they were so advised.
8. On May 10, 1978, the Honorary Secretary of the Governing Body of the College addressed two letters to the Respondents Nos. 5 and 6. The
text of both the said letters was as follows:
The Governing Body of the College dismissed you from your services on September 30, 1977, on the ground of misconduct. The Hon''ble High
Court has since held that the entire provisions of the West Bengal College Teachers'' (Security of Service) Act, 1975, relating to termination of
your employment, appeal therefrom etc. constituted a single scheme and could not be given effect to unless the Appellate Tribunal was set up by
the State Government and in that view of the matter including the dismissal passed under the said Act including the proceedings taken against you
and the order of Vice-Chancellor passed on appeal were all quashed. The Hon''ble High Court made it clear that the said order would not prevent
the College from taking any step against you in any other law for the time being in force.
The Governing Body has since decided in view of the decision of the Hon''ble High Court and without prejudice to any of the rights and
contentions of the College including that your services were validly and lawfully terminated on September 30, 1977 and with a view to avoid all
disputes and controversies in future that your services be and are hereby terminated with immediate effect. The contract of employment dated 30th
June, 1969, provides for a month''s notice and it has been decided by the Governing Body that you be paid one month''s salary in lieu of such
notice.
Accordingly, please note that your services stand terminated with immediate effect and you shall be paid one month''s salary in lieu of the notice.
You may collect all dues from the office of the College on any working day during office hours.
9. The Respondents Nos. 5 and 6 again preferred appeals u/s 12 of the West Bengal College Teachers'' (Security and Service) Act, 1975, against
the said dismissal orders dated May 10, 1978. On May 13, 1978, the Inspector of Colleges, Calcutta University, gave notice to the Governing
Body of the College that on May 16, 1978, the Vice-Chancellor as the authority duly empowered would hear the matter. The Governing Body
was asked to show cause why ad interim orders shall not be made. On May 16, 1978, the Honorary Secretary of the Governing Body of the
College had addressed a letter to the Inspector of Colleges, Calcutta University, requesting that the matter might not be proceeded with without
furnishing the copies of the Petitioners appeal and without affording opportunity of hearing to the College Authorities.
10. On May 17, 1978, the Vice-Chancellor of the Calcutta University granted stay of the operation of the orders of the termination of services of
the Respondents Nos. 5 and 6 till the disposal of the appeals preferred by them.
11. On May 12, 1978, the Appellants presented this appeal under Clause 15 of the Letters Patent against the judgment of Amiya Kumar
Mookerji J. dated May 3, 1978, in so far as the same purported to quash the orders of dismissal passed by the Governing Body of the College in
September 1977 against the Respondents Nos. 5 and 6 and the proceedings taken by the Governing Body of the College against the said
Respondents. The University of Calcutta, the Vice-Chancellor, the Registrar and the Inspector of Colleges of the Calcutta University, who are
Respondents Nos. 1 to 4, have filed a Memorandum of Cross-Objection against the said judgment of Amiya Kumar Mookerji J. dated May 3,
1978. The Respondents Nos. 5 and 6 have also filed another Memorandum of Cross-Objection. Both sets of the cross-objector Respondents
have contended that the learned Single Judge had erred in quashing the orders of the Vice-Chancellor passed on appeals preferred by the
Respondents Nos. 5 and 6 u/s 12 of the West Bengal College Teachers'' (Security of Service) Act. 1975, against their dismissal from service by
the Governing Body of the College dated September 19, 1977. According to the Respondents, the Vice-Chancellor had power and authority to
hear the said appeals of the Respondents Nos. 5 and 6.
12. The Respondents Nos. 1 to 4 have filed an application under Order 41 Rule 27 of the CPC for taking into consideration certain alleged
subsequent events after the judgment was delivered in C.R. No. 2441 (W) of 1978. The Respondents Nos. 5 and 6 have also prayed that this
Court ought to take notice of the said subsequent events mentioned below, According to these Respondents, the Appellants had approached the
judgment dated May 3, 1978, of Amiya Kumar Mookerji J. quashing the dismissal of the Respondents Nos. 5 and 6 by acting in conformity with
the said judgment. The College authorities had accepted the said judgment and on May 10, 1978, had passed fresh orders for dismissal against the
Respondents Nos. 5 and 6. The Respondents u/s 12 of the above Act have again preferred appeals against the said subsequent orders of the
College authorities dismissing them from service. The Respondents Nos. 1 to 4 have further stated that the State Government by an order
published in the Official Gazette had constituted the Appellate Tribunal under the West Bengal College Teachers'' (Security of Service) Act, 1975,
with effect from May 6, 1978.
13. The learned Advocate for the Respondents have submitted that the Appellants having accepted the judgment/order of Amiya Kumar Mookerji
J. so far as the same quashed their orders dated September 30, 1977, dismissing the Respondents Nos. 5 and 6 and they were estopped from
further prosecuting the present appeal presented by them against the said judgment of Amiya Kumar Mookerji J. dated May 3, 1978. We have
heard the learned Advocates for the parties on the said preliminary point and we find no substance in the same. In the facts of this case it cannot be
held that the Appellants'' statutory right under Clause 15 of the Letters Patent to prefer an appeal against the aforesaid judgment of Amiya Kumar
Mookerji J. had come to an end. In the first place, the letters of the Honorary Secretary of the said College dated May 10, 1978, which we have
set out in the earlier portion of our judgment clearly stated that the Governing Body''s decision to terminate the services of the Respondents Nos. 5
and 6 was without prejudice to any of their rights and contentions including that the services of the Respondents Nos. 5 and 6 were validly and
lawfully terminated on September 30, 1977. In considering whether the Appellants had approached the said judgment and whether the Appellants
are now estopped, we have to determine whether or not they have accepted any benefit under the said judgment and had thereby deemed to have
renounced all their rights inconsistent with it, vide C. Beepathumma and Others Vs. V.S. Kadambolithaya and Others, , Further, the majority
decision in Bhau Ram v. Baij Nath Singh AIR 1961 S.C. 1327 was that in the absence of some statutory provision or of well-recognised principle
of equity, no one can be deprived of his legal rights including his statutory right of appeal. The majority decision in the said case was that a statutory
right of appeal cannot be presumed to have come to an end because the Appellant has in the meantime abided by or taken advantage of something
done by the opponent under the decree. In this case, after reserving their rights and contentions about the previous dismissal order dated
September 3, 1977, the Appellants had purported to abide by the order of the learned Single Judge. But in no sense they had taken any benefit
under the said order de hors their claim on merits. Further, in this case there was no question of making a choice between two inconsistent rights.
Therefore, the conditions necessary for the applicability of the doctrine of approbate and reprobate were not present. We, accordingly, uphold the
submission of Mr. Bajoria, learned Advocate for the Appellants, that the principles of law laid down in Bhau Ram v. Baij Nath Singh (Supra) fully
support the right of the Appellants to proceed with this appeal. There is another serious impediment in the way of the Respondents pleading that
this appeal is not maintainable. The Respondents have themselves preferred cross-objections against the judgment of Amiya Kumar Mookerji J.
dated May 3, 1978, so far as the same quashed the orders of the Vice-Chancellor u/s 12 of the West Bengal College Teachers'' (Security of
Service) Act, 1975. But, at the same time the Respondents Nos. 5 and 6 u/s 12 of the said Act have preferred appeals to the University against
their dismissal from service by letters dated May 10, 1978, issued by the Honorary Secretary of this College. The University has entertained the
said appeals. Therefore, the Appellants may also urge that the Respondents have accepted the aforesaid judgment of Amiya Kumar Mookerji J.
and have acted upon the same and therefore, they are estopped from preferring cross-objection. It is clear that the action taken by both the
Appellants and the Respondents were without prejudice to their respective rights to prefer appeal cross-objection against the aforesaid judgment
of Amiya Kumar Mookerji J. Therefore, we over-rule the preliminary objection raised by the Respondents.
14. We now take up the consideration of the merits of the appeal preferred by the members/office-bearers of the Governing Body of the College
against the order of the learned Single Judge quashing the orders of dismissal dated September 30, 1977. The Appellants as Petitioners had filed
the writ petition, inter alia, challenging the jurisdiction of the University to entertain the two appeals preferred by the Respondents Nos. 5 and 6 u/s
12 of the West Bengal College Teachers'' (Security of Service) Act, 1975. The Appellants had also challenged the delegation made by the
Syndicate of the Calcutta University in favour of the Vice Chancellor of the University for hearing these two appeals. The Respondents Nos. 5 and
6 themselves did not file any writ petition praying for quashing the order of the Governing Body dismissing them with effect from September 30,
1977. It is also debatable whether a writ would be available against the Governing Body of the above-named. this Court, while disposing of the
said writ petition of the present Appellants, could not validly quash orders made by the Appellants themselves. As already stated, the learned
Single Judge was required to determine whether or not the two appeals u/s 12 of the Act preferred by the two appeals of the Respondents Nos. 5
and 6 were maintainable and whether the orders passed by the Vice-Chancellor in respect of them were lawful and within his jurisdiction. In case
the Court found that the appeals of the Respondents Nos. 5 and 6 were maintainable and the orders passed thereon were valid, the Civil Rule,
obtained by the Appellants was liable to be discharged. If, on the other hand, it was found that the said appeals of the Respondents Nos. 5 and 6
did not lie or that the Vice-Chancellor had no jurisdiction to entertain and hear the said appeals, appropriate orders might have been made by this
Court for quashing the appellate proceedings. But, in either view of the matter, the Court entertaining a writ petition filed by the College authorities
could not have quashed the orders passed by the College authorities themselves. Mr. Bajoria, learned Advocate for the Appellants, has further
pointed out that the right of the Governing Body of a college to pass disciplinary orders against the teachers of the college were not, for the first
time, created by the West Bengal College Teachers'' (Security of Service) Act, 1975. The said Act purported to regulate and modify the powers
of the Governing Body over the teachers of the College by, inter alia, making certain provisions for security of service of the College teachers. The
Act has, inter alia, laid down the procedure for imposing penalties; the Act also has provided for appeals to the University by the teachers against
orders imposing penalties u/s 9(1) of the Act, the Act also contains provisions for constitution of an Appellate Tribunal. In case the Appellants are
right in their submissions that until the Appellate Tribunal u/s 14 of the Act was constituted the provisions of the Act relating to imposition of
penalties u/s 9 and for preferring appeals therefrom u/s 12 did not come into force, then the College teachers would be continued to be governed,
by the terms and conditions of their services which existed prior to the commencement of the Act.
15. The next submission of Mr. Bajoria is that at the date of the presentation of the appeals by the Respondents Nos. 5 and 6 to the University
against the resolution of the Governing Body of the College dated September 30, 1977, neither the University nor its delegate was competent to
exercise the appellate powers u/s 12 of the West Bengal College Teachers'' (Security of Service) Act, 1975. According to Mr. Bajoria, until and
unless the appellate Tribunal had constituted u/s 14 of the said Act and the provisions of Section 12 were still inoperative. Section 14 did not leave
any discretion with the State Government and the State Government was bound to constitute an appellate Tribunal and therefore, until and unless
such an appellate Tribunal is constituted, there could be no question of the University entertaining appeals against order of the College authorities
imposing penalties upon the College teachers. Mr. Bajoria submitted that Sections 12 and 14 are so in separately connected with each other that
until and unless the higher Tribunal u/s 14 is constituted, the right of appeal u/s 12 of the Act would remain ineffective and unavailable against the
orders u/s 9 of the Act. The learned Single Judge while making the Civil Rule absolute has upheld this submission of the Appellants.
16. Having given our anxious consideration to the matter, we are unable to agree with the above proposition. The West Bengal College Teachers''
(Security of Service) Act, 1975, was enacted to provide for the security of service of teachers of affiliated constituent and Government sponsored
colleges in West Bengal. Sub-section (3) of Section 1 of the said Act laid down that the. Act shall come into force on such date as the State
Government may by notification in the Official Gazette appoint. On October 9, 1975, the Notification No. 1051 C.C. was published in pursuance
of Sub-section (3) of Section 1 of the said Act, appointing October 9, 1975, as the date on which the said Act shall come into force. Therefore,
October 9, 1975, was the date of the commencement of the provisions of the West Bengal College Teachers'' (Security of Service) Act, 1975 and
all the provisions of the said Act including Section 12 had come into force. The Governing Body of the College itself purported to follow the
provisions of the said Act in the matter of imposing penalties upon the Respondents Nos. 5 and 6. The Honorary Secretary of the College, on
behalf of the Governing Body by a letter dated September 30, 1977, forwarded to the Vice-Chancellor, University of Calcutta, two copies of the
orders of the Governing Body imposing penalties upon the Respondents Nos. 5 and 6 in accordance with Sub-section (1) of Section 9 of the
West Bengal Act XXXIV of 1975. The Secretary, further, intimated that the said communication was being made in accordance with Section 10
of the said Act.
17. Section 10 inter alia requires that the order of the Governing Body shall be communicated to the teacher concerned and the same shall also be
reported to the University to which such college is affiliated. Section 12 of the Act confers a substantive right upon a teacher who is aggrieved by
an order imposing any of the penalties referred in Sub-section (1) of Section 9, to prefer an appeal within 30 days from the date of such order to
the University to which the College is affiliated. An order of penalty u/s 8 by the Governing Body of the College upon any teacher of the College is
subject to appeal u/s 12 of the Act. The said Section 12 does not qualify that such right to prefer appeal against any order imposing penalties shall
not be exercised until the Tribunal u/s 14 is set up. In other words, the right of appeal u/s 12 has not been made conditional upon constitution of the
appellate Tribunal u/s 14 of the said Act. The object of the Act no doubt is to set up a hierarchy of quasi-judicial authorities/Tribunals. In the
lowest tier is the domestic enquiry by the Governing Body. The University has been constituted the appellate authority from the orders of the
Governing Body imposing any of the penalties in Sub-section (1) of Section 9. The appellate Tribunal constituted u/s 14 by the State Government
is the apex. The Governing Body of a college or a teacher may prefer an appeal against an order passed u/s 12 of the said appellate Tribunal
within the prescribed time.
18. In this case, simultaneously with the commencement of the West Bengal College Teachers'' (Security of Service) Act, 1975, the State
Government did not constitute the appellate Tribunal u/s 14. On May 6, 1978, the State Government u/s 14 of the Act had constituted the
appellate Tribunal. But we are not prepared to hold that because of the delay on the part of the State Government in constituting the appellate
Tribunal u/s 14, a teacher against whom penalty under Sub-section (1) of Section 9 of the said Act has been in the meantime imposed, shall be
deprived of his right to prefer an appeal to the University u/s 12. As soon as the Act including Section 12 thereof came into force, the University
became competent to exercise appellate powers u/s 12, because the Act did not contemplate any notification or order for vesting of such appellate
powers upon the University. In case, we accept the submission of the learned Advocate for the Appellants, that the right of appeal u/s 12 would
remain suspended until and unless the appellate Tribunal u/s 14 of the Act is constituted, it would mean that in spite of the State Government''s
notification u/s 1(3) of the Act, Section 12 was not brought into force. In other words, the Court would be required to hold that even though by a
notification the entire Act had come into force, the commencement of Section 12 was postponed till the State Government had constituted the
appellate Tribunal u/s 14(1) of the Act. We are not prepared to read into the Act something which is not there or to defer the date of the
commencement of the Act contrary to the clear intention of the Act itself. As soon as the Act came into force, the power of the Governing Body of
a College which was governed by the said Act to impose upon a teacher of the College any of the penalties specified in Section 9(1) would be
regulated by the provisions of the said Act. In other words, the said powers of the Governing Body must be exercised in compliance with the
provisions of the said Act. In this case, the Governing Body of the College concerned also purported to act and proceed under the Act in the
matter of imposing penalties upon the Respondents Nos. 5 and 6. When such penalty orders imposed by the Governing Body were communicated
to the teachers concerned, they had right to present appeals to the University. There is no indication in the Act that such right of a teacher to prefer
appeal u/s 12 would remain in abeyance or would be deferred till the higher Tribunal u/s 14 of the Act is constituted by the State Government.
Because of a possible time lag between the commencement of the Act and the constitution of the appellate Tribunal u/s 14, a teacher upon whom a
penalty is imposed u/s 9 of the Act cannot be deprived of his right to present an appeal to the University. As already stated, as soon as the Act
was brought into force the University became competent to entertain appeals u/s 12 and the exercise of the said appellate powers of the University
can, not be denied because the Tribunal which may entertain appeals from the orders of the University made u/s 12 may not have been constituted.
19. In this proceeding arising under Article 226 of the Constitution it is not relevant to consider whether the civil Court would be competent to
entertain a suit in respect of orders made u/s 9 or u/s 12 when no appellate Tribunal u/s 14 had been constituted. Section 16 of the Act had
provided that the decision of the appellate Tribunal shall be final and no suit or proceeding shall lie in any civil Court in respect of the matter
required to be referred to the said Tribunal. Section 16 of the Act, in the first place, expressly has ousted civil Court''s jurisdiction, inter alia, in
respect of matters required to be referred to the said Tribunal u/s 14. The Act, however, does not contain any express provision for making the
decision of the University made u/s 12 of the Act final and also for ousting the civil Court''s jurisdiction. In this appeal arising out of a writ
proceeding we are not called upon to decide to what extent the civil Court''s jurisdiction has been ousted in respect of orders and decisions made
by different authorities under the Act. Because there could be no question of the said Act excluding this Court''s jurisdiction under Article 226 of
the Constitution in respect of such orders and decisions made under the said Act.
20. The Full Bench decision in Mahendra Nath Roy Vs. Delraddi Chakdar and Another, has no relevance in the present context. The Full Bench
in Mahendra Nath Roy''s case inter alia held that the jurisdiction of a civil Court to entertain a suit between a bargadar and the owner whose land
the bargadar cultivates, with regard to any of the matters specified in Sub-section (1) of Section 7 of the West Bengal Bargadar''s Act, 1950 was
not barred by Sub-section (2) of Section 9 of the said Act where no Board has been established under the said Act for the local area within which
the land in question is situated. The Full Bench inter alia held that Section 6(1) of the Bargadars Act, 1950, was not mandatory but discretionary
and it was optional for the State Government to establish a Bhagchas Conciliation Board in any particular local area. According to the Full Bench,
the, jurisdiction of the civil Court was not excluded u/s 9(2) of the Bargadars Act, 1950, when a Board had not been established in any particular
area. When the State Government fails to establish a Board, the Civil Court could not be deprived of all its powers or the right of a person affected
to take recourse to a remedy by way of suit cannot be barred. Mr. Bajoria, learned Advocate for the Appellant, submitted, with reference to the
observations of the Full Bench decision Mahendra Nath Roy v. Delraddi Chakdar Supra (289) that Section 14 of the West Bengal College
Teachers'' (Security of Service) Act, 1975, was mandatory and not directory and therefore, the State Government had a duty to constitute the
appellate Tribunal u/s 14. In our view, the question whether Section 14 was mandatory or not may be a relevant consideration for determining
whether the civil Court''s jurisdiction has been excluded from the date of the commencement of the Act or from the date on which the appellate
Tribunal was actually constituted. But the said question whether the State Government has a duty or an option u/s 14 is not at all germane in the
matter of presentation of appeals u/s 12 of the Act. As already stated when a penalty is imposed u/s 9, a right accrues in favour of the aggrieved
teacher to prefer an appeal to the University in terms of Section 12. The University''s appellate power u/s 12 has not been either expressly or
impliedly made dependant or conditional upon constitution of an appellate Tribunal which would entertain appeals from the order u/s 12.
21. For the aforesaid reasons, we reach the conclusion that from the date of the commencement of the West Bengal College Teachers'' (Security
of Service) Act, 1975, the University became competent to entertain appeals against orders passed u/s 9(1) of the Act by the Governing Bodies of
Colleges which came within the ambit of the said Act. Thus, with effect from the date of the commencement of the Act, a teacher of such a College
acquired a vested right to present an appeal to the University against the orders of the Governing Bodies imposing any of the penalties specified in
Section9(1) of the Act.
22. The next submission of Mr. Bajoria is that even assuming that the right of appeal u/s 12(1) was available even before the constitution of the
appellate Tribunal u/s 14 in the instant case, the Vice-Chancellor, Calcutta University, had no jurisdiction, in the absence of a valid delegation of
powers u/s 12 to entertain the appeals of the Respondents Nos. 5 and 6.
23. The University is the appellate authority u/s 12 of the West Bengal College Teachers'' (Security of Service) Act, 1975. Section 13 of the said
Act empowers the University to delegate the powers conferred upon it by Section 12to such authority or officer not below the rank of a Deputy
Inspector of Colleges as the University may specify. The expression ''University'' has not been defined in the West Bengal College Teachers''
(Security of Service) Act, 1975. Therefore, Mr. Bajoria, learned Advocate for the Appellants, correctly submitted that with reference to orders
passed u/s 9 by the Governing Bodies of the Colleges affiliated to the Calcutta University, the meaning of the expression ""University"" appearing in
Section 12 of the Act should be ascertained by looking into the provisions of the Calcutta University Act, 1966. Section 1(2) of the Calcutta
University Act, 1966, is as follows:
The University means the University of Calcutta as constituted under this Act.
Chapter II of the said Act deals with the University and its powers. Section 3(1) of the said Act lays down
the first Chancellor and the first Vice-Chancellor of the University and the first members of the Senate, the Syndicate and the Academic Council
and all persons who may hereafter become such officers or members, so long as they continue to hold such office or membership, shall constitute a
body corporate by the name of the University of Calcutta.
In other words, the University of Calcutta consists of:
(a) the Chancellor, (b) the Vice-Chancellor, (c) the Senate and (d) the Academic Council.
Each one of these persons/bodies are constituents of the University of Calcutta which is a body corporate having perpetual succession. Section 4
of the said Act enumerates the powers of the University. The Vice-Chancellor under Section6 of the Act is one of the officers of the University and
his powers and duties have been enumerated in Section 9 of the said Act. But he has not been vested with some and not all the powers of the
University of Calcutta. Apart from his powers of general control and supervision as specified in Sub-section (4) of Section 9 of the Act, the Vice-
Chancellor can exercise such other powers and discharge such other duties as may be delegated to him by any other authority or body of the
University or as may be prescribed by statutes, ordinances and regulations. It is however not necessary to set out in detail the powers of the
different authorities of the University including the Syndicate as provided in chap. V of the Calcutta University Act, 1966. It would be sufficient to
point out that Section 23 of the Calcutta University Act, 1966, has not specifically provided that the Syndicate shall have powers to hear appeal
which may lie to the Universion under any law.
24. The Respondents in this appeal submitted that Section 23(2) of the Calcutta University Act, 1966, has conferred upon the Syndicate all
powers of the University not otherwise provided for in the Act. In other words, Section 23(2) has vested the Syndicate with the residuary powers
of the University and therefore, accordingly the Syndicate could exercise the said appellate powers of the University u/s 12 of the West Bengal
College Teachers'' (Security of Service) Act, 1975. In the instant case, the Syndicate had validly delegated the said appellate powers u/s 12 read
with Section 13 of the West Bengal College Teachers'' (Security of Service) Act, 1975.
25. It is, therefore, necessary to examine the scope and effect of Section 23(2) of the Calcutta University Act, 1966. The said sub-section consists
of two parts : (a) all powers of the University not otherwise specifically provided have been vested upon the Syndicate and (b) the Syndicate shall
have necessary powers to give effect to the provisions of the Calcutta University Act. Undoubtedly, the first part confers residuary powers of the
University upon the Syndicate. The second part of Section 23(2) authorises the University to exercise incidental and consequential powers to give
effect to the provisions of the Calcutta University Act. Mr. Bajoria, learned Advocate for the Appellants, submitted before us that the Syndicate''s
residuary powers u/s 23(2) are confined to such powers of the University, which have been mentioned u/s 4 of the Calcutta University Act, 1966,
but have not allocated to any of its constituent authorities. In other words, the submission of Mr. Bajoria is that Section 4 enumerates the totality of
powers of the University. The subsequent Sections of the Calcutta University Act have purported to allocate and distribute most of these powers
among the officers and the authorities constituting the Calcutta University. According to Mr. Bajoria, the Syndicate u/s 23(2) may exercise only
these powers of the University which have not been specifically distributed among these officers and authorities. But in no event the Syndicate in
the name of the University can exercise any power which is not mentioned in any of the clauses of Section 4 of the Act. Although the above
submissions appears to be attractive at the first sight upon further consideration we are unable to accept the same. No doubt, the Calcutta
University being a body corporate, its powers, duties and functions are primarily derived from the Calcutta University Act, 1966 and the statutes
and regulations framed thereunder. But by subsequent legislation additional powers could be conferred upon the Calcutta University. The West
Bengal College Teachers'' (Security of Service) Act, 1975, vested the Universities in West Bengal including the Calcutta University with powers to
entertain appeals by the teachers against whom penalties u/s 9(1) of the Act might be imposed. In other words, the West Bengal College
Teachers'' (Security of Service) Act, 1975, has given additional powers to the University. It is true that under the Calcutta University Act the
Syndicate is one of the several authorities constituting the University and the Syndicate does not enjoy all the powers of the University. But, under
the Calcutta University Act apart from the powers allocated to it under Sub-section (1) of Section 23 of the Calcutta University Act, the Syndicate
may also exercise the residuary powers of the University. When the Calcutta University Act, 1966, was enacted, the appellate powers of the
University u/s 12 of the West Bengal College Teachers'' (Security of Service) Act, 1975, was not even in contemplation. Subsequently, the
Universities including the Calcutta University were constituted as the appellate authorities u/s 12 of the said Act. Mr. Bajoria did not urge before us
that the Calcutta University itself cannot exercise such appellate powers u/s 12 of the said Act in the absence of same being specified in Section
4of the Calcutta University Act by amendment of the Calcutta University Act. In fact, we find no legal impediment in the way of conferment of such
appellate powers under the University by a subsequent statute, namely, the West Bengal College Teachers'' (Security of Service) Act, 1975. The
University of Calcutta is composed of (i) Chancellor, (ii) Vice-Chancellor, (iii) Senate, (iv) Syndicate and (v) Academic Council. It is not
practicable for the Calcutta University itself to discharge such appellate powers and it a must exercise its appellate powers through one of these
authorities. In the absence of any specific provision either in the Calcutta University Act or in the West Bengal College Teachers'' (Security of
Service) Act, 1975, allocating or distributing such appellate powers u/s 12 of the 1975 Act, the Syndicate which has been vested with the
residuary powers of the University could validly exercise on behalf of the University the said appellate powers to entertain appeals of teachers
against orders imposing penalties by the Governing Bodies of Colleges affiliated to the Calcutta University. Section 13 of the West Bengal College
Teachers'' (Security of Service) Act, 1975, recognized that the appellate powers u/s 12 of the Act may be delegated.
26. We are not prepared to accept the submission of Mr. Bajoria that Section 23(2) has empowered the Syndicate to exercise only those powers
of the University which have been conferred upon the University u/s 3 of the Calcutta University Act but not allocated or distributed to any of the
authorities under the Act. It is significant to note that words ''specifically provided for'' have not been qualified by the expression ''in the Calcutta
University Act''. Therefore, once it is held that the University of Calcutta has been entrusted with additional powers under the West Bengal College
Teachers'' (Security of Service) Act, 1975, without specifying the officer or the authority who may exercise such additional powers, the Syndicate
would be legally entitled to exercise the said additional powers of the University.
27. In the result, we reach the conclusion that the expression ""all powers of the University not otherwise specifically provided for"" in Section 23(2)
of the Calcutta University Act would include not only the residuary powers of the University under the Calcutta University Act itself but also the
powers of the University conferred by any other law and which have not been specifically distributed or delegated by the said law to any officer or
authority of the University. Neither the Calcutta University Act nor the West Bengal College Teachers'' (Security of Service) Act, 1975, does
specify that which authorities composing the University would exercise the appellate powers of the University u/s 12 of the Act of 1975. Therefore,
the Syndicate can exercise the said powers either by itself acting as the appellate authority or by delegating the same in terms of Section 13 of the
West Bengal College Teachers'' (Security of Service) Act, 1975-Accordingly, the Syndicate of the Calcutta University had validly empowered the
Vice-Chancellor to hear and dispose of the appeals preferred by the Respondents Nos. 5 and 6 against their removal.
28. Therefore, the judgment of the learned Single Judge cannot be sustained. The two appeals of the Respondents Nos. 5 and 6 u/s 12 were
maintainable in law and the Vice-Chancellor was entitled to act as the appellate authority u/s 12 read with Section 13 of the West Bengal College
Teachers'' (Security of Service) Act, 1975. We also set aside the order of the learned Single Judge that the orders of dismissal passed by the
Governing Body of the College were not valid. We, however, express no opinion upon the merits of the order of the Vice-Chancellor disposing of
the two appeals u/s 12 of the Act. We have not also decided whether or not the dismissals of the Respondents Nos. 5 and 6 were lawful. All the
parties would be entitled to proceed further in accordance with law in respect of the said appellate decision of the Vice-Chancellor u/s 12 of the
Act.
29. Subject to these observations, we allow this appeal, set aside the judgment appealed against and we discharge the C.R. No. 2411(W) of
1978. The cross-objections are also allowed to the above extent.
30. There will be no order as to costs.
31. On the prayer of Mr. Bajoria, there will be stay of the operation of this order till one week after the reopening of the Court after the long
vacation. But, we make it clear that at this stage, we are not deciding which body is the lawfully constituted Governing Body of the College.
Therefore, we need not consider the subsequent event of conversion of the College into a sponsored institution and the appointment of an Ad hoc
Committee.
32. Let the appeal be put up ''For Orders'' one week after the reopening of the Court after the long Puja Vacation regarding disbursements of the
moneys deposited in terms of the interim order.
B.C. Ray, J.
33. I agree.