Vikramajit Sen, J.
1. By this judgment I shall dispose of both the Petitions filed by Dr. Salahuddin Ahmed Siddiqui. Prayers in the first Petition seek the issuance of a Writ, order or direction against the Respondents for complying with the unanimous decision of Respondent No. 2 dated 1.2.2001 and for bestowing upon the Petitioner all the benefits due to him consequent upon his reinstatement. In the second Petition a Writ, order or direction has been preferred for disposing of the Petitioner's Representation dated 19.3.2001 seeking the passing of an additional arbitration Award pursuant to the provision of Section 33(4) of the Arbitration and Conciliation Act, 1996, in view of a compromise arrived at between the Petitioner and Respondents No. 1 and 2.
2. Briefly stated, the facts of the case are that the Petitioner was serving as a Reader in the Department of Economics, in Shaheed Bhagat Singh (Evening College), University of Delhi (hereinafter referred to as `the College') but his services were terminated on 23.12.1997 with the approval of the Vice Chancellor. In February, 1998 an Appeal was filed before the Vice President of India, who is also the Chancellor of the University of Delhi. The Appeal Committee was constituted under Clause 9 of the Agreement of Services for College Teachers. By letter dated 11.4.2000 the Chairman of the College Governing Body informed the Appeal Committee that at its Meeting held on 30.11.1999, it had authorised the Chairman to review the Petitioner's case. Accordingly, a prayer for postponement of proceedings of the Appeal Committee for two months had been requested for and granted. The Principal of the College, on the instructions of the Chairman of the Governing Body, again requested for an adjournment of proceedings before the Appeal Committee. Thereafter, at the Meeting of the Governing Body dated 1.2.2001 (at which the Nominee of the University, namely, Professor Davendra Mishra was present), it was noted that the charges leveled against the Petitioner were baseless and legally untenable as he had not been given adequate opportunity by the previous Governing Body to plead his case. It was unanimously decided by the Governing Body at which the University's Nominee was present, that the Petitioner should be reinstated and all benefits due to him consequent upon his reinstatement should be restored. The Resolution reads as follows:
After careful review of the whole case, the Governing Body unanimously decided that Dr. S.A. Siddiqui, Ex. Reader in Economics, be reinstated and all benefits due to him consequent upon his reinstatement be restored.
3. The Principal thereupon addressed a letter dated 2.2.2001 to the Appeal Committee informing it of the reinstatement of the Petitioner and of the resolution of the disputes before the Arbitrator. The Appeal Committee was requested to wind-up the arbitration proceedings. By letter of even date the Principal made a similar request to the Appeal Committee. However, the Appeal Committee has published an Award dated 25.1.2001, a copy of which is available in CWP No. 5584/2001. It has not been filed in CWP No. 1927/2003 although the Index dated 2.9.2003, by which the Counter Affidavit had been filed, states to the contrary. The operative part of the Award reads thus - 'The Appeal Committee, having heard the Petitioner and after a careful perusal of all records of the Inquiry and submission of the petitioner and the college authorities, finds that the ground on which the services of the petitioner Shri S.A. Siddiqui were terminated, were valid grounds and the dismissal order was proper and in order'. It has been vehemently voiced on behalf of the Petitioner that this Award has been anti-dated and that the occasion of hearing the Petitioner had not arisen as only adjournments were being requested for.
4. The Respondents have raised a Preliminary Objection pertaining to the maintainability of these Writ Petitions on the ground that an Award has been published, which has not been assailed under the Arbitration and Conciliation Act, 1996 (hereinafter referred to as `the Arb. and Con. Act'). It is contended that a Writ Petition is not maintainable since the efficacious remedy provided under the Arb. and Con. Act has not been availed of. This Objection cannot be countenanced. Over a quarter century ago in Rohtas Industries Ltd. and Anr. v. Rohtas Industries Staff Union and Ors. : (1976)ILLJ274SC , the Apex Court had observed as follows:
'The expansive and extraordinary power of the High Courts under Article 226 is as wide as the amplitude of the language used indicates and so can affect any person even a private individual and be available for any (other) purpose even one for which another remedy may exist. The amendment to Article 226 in 1963 inserting Article 226 (1A) reiterates the targets of the writ power as inclusive of any person by the expressive reference to 'the residence of such person'. But it is one thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a china shop. This Court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect, the writ power has, by and large, been the people's sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights. We hold that the award here is not beyond the legal reach of Article 226, although this power must be kept in severely judicious leash.'
5. Almost five years later the same question had again been raised before the Apex Court in Gujarat Steel Tubes Ltd. etc. etc. v. Gujarat Steel Tubes, Mazdoor, Sabha and Ors. : (1980)ILLJ137SC . The majority echoed its pronouncement in Rohtas's case (supra). Even in his dissenting opinion His Lordship, Koshal, J. had accepted that the powers of the Writ Court extend to correcting a decision of the Arbitrator taken beyond the scope of his legal authority. This question, however, is now well-settled, having been considered in great detail by the Constitution Bench of seven learned Judges in L. Chandra Kumar v. Union of India and Ors. : [1997]228ITR725(SC) where it was held that the jurisdiction conferred on the Supreme Court under Article 32 and on the High Courts under Articles 226 and 227 of the Constitution compose the basic structure of the Constitution which cannot be tampered with or taken away by the constitutional amendment; a fortiori it cannot be modified by Parliamentary Legislation. The centre of controversy was whether the various service Tribunals could, because of the statutory powers vested in them, be permitted to substitute the powers of the High Court and the Supreme Court, and in particular whether a statute could remove the power of judicial review recognised by the Constitution to be reposed in the High Courts and Hon'ble Supreme Court. The answer was resoundingly in the negative. Strength from this decision has been drawn upon by the Hon'ble Supreme Court in Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 . The amendment carried out to Section 115 of the CPC with effect from 1.7.2002 severely curtailed the revisory powers of the High Courts. The Apex Court held that the powers under Articles 226 and 227 of the Constitution could nevertheless be invoked in challenging a decision which had specifically been placed beyond the pale of challenge in the revisory jurisdiction of the High Courts. These powers exist, untrammeled by any statutory interference subject to rules of self-discipline, a practice which has been invariably followed by the High Courts. The contentions raised in these Petitions against the impugned Award does not require this Court to undertake an exercise requiring an appellate approach. To the contrary, if the Petitioners' case is accepted, the Award would be declared null and void ab initio for the reason that the Arbitrators had been divested of their powers to pronounce the Award. The Preliminary Objection is without merit and is rejected.
6. Let us revert to the factual matrix of the case. The Petitioner's services as a Reader in the Department of Economics, Shaheed Bhagat Singh (Eve.) College were terminated on 23.12.1997. Consequent upon availing of the right to challenge this decision the Petitioner filed an appeal before the Vice President of India (being the Chancellor of the Delhi University) on 27.2.1998. On 30.11.1999 the Governing Body had decided to review the Petitioner's case and in this direction had authorised the Chairman to look into the matter and take requisite action. Salary for the month of November, 1999 was paid to the Petitioner by the College in December, 1999. In the wake of the Appeal filed by the Petitioner almost one year earlier, the Hon'ble chancellor ordered the constitution of an Appeal Committee on 22.1.2000 by which time the differences between the Petitioner and the College had been resolved.
7. Some of the salient clauses of the Agreement of Service for College Teachers is reproduced below for ease of reference.
5.The Governing Body shall be entitled summarily to determine the engagement of the teacher for misconduct, but save as aforesaid, shall only be entitled to determine the engagement after giving three months' notice in writing or payment of three months' salary in lieu of notice, and for good cause.
7. The question of termination of the services of the Principal/Teacher or his suspension, shall not be decided by the College/Institution without the prior approval of the Vice-Chancellor.
9.(1) Any dispute arising in connection with the termination of the services of the teacher, except when on probation, by the Governing Body shall be referred to the arbitration of an Appeal Committee of three independent persons appointed by the Chancellor, who shall have power to inquire into all the facts of the case and to interpret the terms of this agreement, and their decision shall be final and binding on both parties. The Appeal Committee shall give its final decision within a reasonable time:
Provided that during the pendency of the appeal, the teacher shall continue to draw such salary or subsistence allowance, as the case may be, as he was drawing immediately prior to the termination of his/her services.(2) The Indian Arbitration Act, 1940, shall apply to an arbitration under this Clause.
8. The Convenor of the Appeal Committee had notified the Petitioner as well as the Principal of the College that 'the Appeal Committee has decided to give another opportunity for final personal hearing to Dr. S.A. Siddiqui. He is advised to appear before the Committee and state his case and file all relevant documents on which he relies for his defense. Copies of all such documents should be made available to the Principal, Shahid Bhagat Singh College or his nominee before the resumption of argument'. The venue was fixed in the Chamber of Director-NIEPA on 20.1.2001 at 11.30 A.M. It is the asseveration of the Petitioner as well as the College that on the date fixed by the Appeal Committee, i.e. 20.1.2001, both parties had submitted a written representation to the Appeal Committee requesting them to adjourn the case as reconciliation was under process. On 1.2.2001 the Governing Body of the College had unanimously passed a Resolution holding that the charges leveled against the Petitioner were baseless and untenable and that he had not been given adequate opportunity of being heard. The Governing Body had unanimously decided to reinstate the Petitioner. These events were brought to the notice of the Appeal Committee thoughts Convenor on 2.2.2001 itself. It is the submission of the Petitioner that he received a copy of the Award as late as on 26.2.2001 and it is strongly and strenuously contended that the Award has been back-dated. In the Counter Affidavit filed on behalf of the University it is asserted that the Appeal was 'duly heard and decided' on 25.1.2001. On that date differences between them had been ironed out and neither of the parties vitally affected by the Arbitration i.e. the Petitioner and the College were represented before the Appeal Committee. They were already aware that efforts by these persons to resolve their disputes were underway. thereforee, there was no necessity for the Appeal Committee to act contrary to the wishes of the parties at whose instance the matter had been forwarded to them for adjudication. Whenever a person performs quasi-judicial functions care must be taken not only to be fair but also to appear to be fair. Notice of the passing of the Award should have been dispatched to all concerned immediately on 25.1.2001 itself. Furthermore, it is difficult to accept that, if the Award had in fact been published on 25.1.2001, an immediate response to the letter dated 2.2.2001 would not have been sent out in forming the parties that the question of not taking any further action in the arbitration/appeal did not arise since the Award had already been published a week earlier. This raises a doubt not only on the propriety of the Appeal Committee to proceed in publishing an award, but also on whether it was signed on 25.1.2001.
9. It is the learned counsel for the University who had brought the question of change in views being a consequence of a change in Government. What is sauce for the goose is also sauce for the gander. The Members of the Appeal Committee had been appointed during the previous Government's regime. The haste in which the Appeal Committee have published the Award even though the antagonists before them had reported that an amicable settlement was being arrived at and neither of them had thereforee argued their case, leaves a realistic possibility that the Appeal Committee may have been biased towards the Petitioner. I am satisfied that the circumstances brought to the notice of the Court are sufficient to set aside the impugned Appeal/ward.
10. However, the effect of the order will be that the status quo obtaining immediately prior to the filing of the Appeal and/or the constitution of the Appeal Committee would have to be returned to. The order of termination of the Petitioner's services was passed with the approval of the Vice-Chancellor. The quashing or setting aside of the Award would not automatically affect the termination order. The service of the Petitioner would have to be adjudged in the context of Order XII of the University of Delhi Calendar, 1992, the relevant provisions of which are reproduced for facility of perusal:
Order XII. College Appointed Teachers
1. (A) Every whole-time teacher shall be engaged by a College as a member of its staff on salaries in the scales prescribed by the University for the various categories of its teachers.
2. No whole-time teacher shall be engaged by any College as a member of its staff except on an Agreement of Service in the form annexed hereto or an agreement substantially to like effect and every teacher shall sign the Agreement before he enters upon his duties.
3. (1) All vacancies of teachers shall be filled after advertisement and by open recruitment, save in the cases of vacancies, appointment to which may be required to be made urgently in the interest of organisation of teaching in the college concerned for a period not exceeding four months or beyond the term in which it is made whichever is earlier.
11. A fresh decision on the status of the Petitioner will, thereforee, have to be taken by the Governing Body of the Respondent College. All further orders prayed for in these writ petitions are declined. The question of whether a direction should issue to the Appeal Committee for passing additional arbitral award is specifically declined because steps in this direction ought to have been taken within the time prescribed under the Arbitration and Conciliation Act, 1996. Moreover, such orders cannot possibly be passed where the Petitioner himself contends that the initial award passed was void ab initio since it was passed contrary to the requests made by the parties concerned. The parties shall bear their respective costs.
12. WP (C) No. 5584 of 2001 is rejected and WP (C) No. 1927 of 2003 is allowed in the above terms.