judgement:
Appeal No. 279 of 1964.
Appeal by special leave from the judgment and order dated December 23, 1963 of the Patna High Court in M. J. C. No. 86 of 1963.
M.C. Setalvad, R. K. Garg, D. P. Singh, section C. Agarwar and M.K. Ramamurthy, for the appellant.
C.K. Daphtary, Attorney General, and section P. Varma, for the respondent Nos. 1, 2 and 4.
S.C. Agarwal, R. K. Garg, D. P. Singh and M. K. Rama murthy, for respondent No. 5.
Sarjoo Prasad, section L. Chhibber and B. P. Jha, for respondent No. 8.
D. Goburdhun, for respondent No. 16.
section P. Varma, for intervener No. 1.
Dipak Datta Choudhri and A. K. Nag, for intervener No. 2.
April 24, 1964.
The judgment of the Court was delivered by GAJENDRAGADKAR, C. J.
The writ petition from which this appeal by special leave arises had been filed by the appellant Bisheshwar Dayal Sinha by which he challenged the validity of the order issued by the Vice Chancellor of the Bihar University directing the reconstitution of the Govern ing Body of the Rajendra College, Chapra, and of the rele vant new statutes framed by him under which the said order is purported to have been issued.
His case was that the relevant 881 new statutes are ultra vires the authority of the Vice Chan cellor and the impugned order passed by him in pursuance of the said relevant statutes is, therefore, illegal, inoperative and void.
Along with the petition filed by the appellant, four other petitions had been filed by other persons seeking to obtain similar relief.
The Patna High Court has, in substance,, rejected the appellant 's case and has accordingly dismissed the appellant 's writ petition as well as the other petitions filed by other persons.
On behalf of the appellant, Mr. Setalvad has contended that the view taken by the Patna High Court about the validity of the relevant statutes is not sustainable and that the said statutes are ultra vires with the inevitable consequence that the impugned order directing the reconstitution of the Governing Body of the Rajendra College must also be held to be invalid.
The Rajendra College is an educational institution which has been admitted by the Bihar University as a College, as defined in section 2(d) of the Bihar State Universities (Patna, University of Bihar, Bhagalpur and Ranchi) Act (Bihar Act XIV of 1960) (hereinafter called 'the Act ') read with Article I of Chapter XII of the Statutes framed under the Act.
The said college is a public institution founded by public charities and is conducted under the management of a Governing Body.
The first Governing Body of the College was formed by the citizens of Chapra who had assembled for that purpose in a meeting on the 31st July 1938.
The Governing Body thus constituted consisted of 18 members; it continued to function until the 24th July, 1940, with additions in the personnel made from time to time by co option.
Later, in 1941, the Governing Body adopted a constitution framed by the Principal of the College at its request and that constitution governed the administration of the college.
In due course, some further amendments were made in 1950.
After the passing of the University of Bihar Act, 1951 (Bihar Act XXVII of 1951) and the framing of Chapter XIII of the Statutes under the said Act, the University suggested to the Governing Body to bring its constitution in line with the provisions of Chapter XIII of said Statutes.
Accordingly, modifications were made in the constitution, and the constitution thus modified and amended from time to time was in operation at the relevant time.
The appellant had been elected Secretary to the Governing Body on the 3rd of June, 1961, and under the relevant rules of the constitution, his term of office was to be three accademic sessions, and as such, it was to last until 31st May, 1964.
Meanwhile, by the impugned order passed by the Vice Chancellor on the 13th January, 1963, the appellant has been removed from his position as Secretary and another person has been appointed in his place.
That is the reason why the 882 appellant moved the Patna High Court for appropriate writ or order quashing the impugned order and the relevant statutes on which it purports to be based.
To his writ petition, the appellant impleaded 18 persons amongst them being respondent No. 1, the University of Bihar, respondent No. 2 Mr. Srivastava, Vice Chancellor of the University of Bihar, and respondent No. 3 the Chancellor 'of the University of Bihar.
Before dealing with the contentions raised by the appellant in the present appeal, it is necessary to refer briefly to the relevant statutory provisions governing the affairs of the University of Bihar and its constituent colleges.
The first Act to which reference must be made is the University of Bihar Act (Bihar Act XXVII of 1951).
This Act was passed in August, 1951, and the provisions enacted by it were intended to furnish a comprehensive code to establish and incorporate an affiliating cum teaching University in the State of Bihar at Patna.
In 1960, Bihar Act XIV of 1960, which we are describing as the Act in the course of this judgment, came to be passed.
This Act was intended to help the establishment and incorporation of affiliating cum teaching Universities at Patna, Muzaffarpur, Bhagalpur and Ranchi in the State of Bihar.
This Act was later amended by Acts 11 of 1962, XIII of 1962, and XVII of 1962.
The first of these Amending Acts came into force on the 1st of March, 1962; the second on 21st April, 1962 and the third on the 16th October, 1962.
At this stage, we may conveniently mention the relevant provisions of the Act.
Section 2(d) defines a "college" as meaning an institution admitted to or maintained by the Uni versity, in accordance with the provisions of the Act, in which instruction is given, subject to the provisions contained in cl.
(15) of section 4, to the students of the college up to and including a standard below the post graduate standard under conditions prescribed in the Statutes.
This definition shows that the Act applies to two categories of colleges, the first category consisting of collegiate institutions admitted to the University, and the other maintained by the University.
Section 4 prescribes the purposes and powers of the University.
Section 4(10) provides that one of the purposes and powers of the University is to institute, maintain and manage colleges and hostels and to recognise colleges and hostels not maintained by the University.
This provision brings out the fact that two kinds of collegiate institutions would be functioning under the University those that are instituted by the Uni versity, and those that are admitted.
In regard to the first category of colleges, the power and purposes of the University would be to institute, maintain and manage the colleges and hostels, and in regard to the other, the power and purpose would be to recognise them, subject, of course, to the 883 conditions imposed in that behalf.
For the purpose of dealing with the main controversy between the parties in the present appeal, it is necessary to bear in mind this distinction between two categories of collegiate institutions functioning under the Bihar University.
Section 7 prescribes the Officers of the University who, are: the Chancellor, the Vice Chancellor; the Treasurer; the Registrar; the Deans of Faculties; the Finance Officer and such other persons as may be declared by the Statutes to be the officers of the University.
Section 16 defines the authorities of the University which are six; they are: the Senate; the Syndicate; the Academic Council; the Faculties; the Examination Board; and such other authorities as may be declared by the Statutes to be the authorities of the University.
Section 20 deals with powers and duties of the Senate.
Under section 20(1), the Senate shall be the supreme governing body of the University and shall have the entire management of, and superintendence over, the affairs, concerns and property of the University; shall exercise all the powers of the University, not otherwise provided for, to give effect to the provisions of the Act.
Section 20(2) prescribes in particular some of the powers and duties of the Senate; amongst them is included the power of making the Statutes.
and amending or repealing the same.
Section 21 deals with the Syndicate and its composition; and section 22 prescribes the powers and duties of the Syndicate.
Section 30 deals with statutes.
Section 30(d) provides that subject to the provisions of the Act, the Statutes may provide for the admission of educational institutions as colleges and the withdrawal of privileges from colleges so admitted; and section 30(e) provides that the statutes may provide for the institution of colleges and hostels and their maintenance and management.
It would thus be seen that proceeding on the basis of the broad distinction between collegiate institutions instituted by the University and those admitted or recognised by it, section 30 makes two separate provisions in that behalf.
In regard to the institutions admitted or recognised, the Statutes can provide for the admission or recognition of such institutions and the withdrawal of such recognition, whereas in regard to the institutions instituted by the University, the Statutes may provide for the institution of such colleges and their maintenance and management.
Section 49 deals with the problem of relations of affiliated colleges with the University, and it provides that the said relations shall be governed by the Statutes to be made in that behalf, and it prescribes in particular some of the matters which may be covered by the said Statutes.
Section 60 provides for the continuance of Statutes, Ordinances, Regulations and Rules which were in force 884 under the Bihar Acts XXV and XXVII of 1961.
Section 60 (ii) empowers the Vice Chancellor to make adaptations or modifications in the said Statutes, Ordinances, Regulations and Rules with the approval of the Chancellor in so far as they are not inconsistent with the provisions of the Act, and when such adaptations or modifications are made, they would be deemed to have been made under the appropriate provisions of the Act.
In other words, while continuing the operation of the pre existing Statutes, power has been conferred on the Vice Chancellor to make adaptations or modifications in the said Statutes, subject to the conditions which we have just indicated.
This provision came into force on the 1st March, 1962 by virtue of the amending provision prescribed by Act 11 of 1962.
There is one more provision to which reference must be made before we part with this topic.
Section 35 of Act II of 1962 provides for dissolution of the Senate, Syndicate and Academic Council functioning prior to the commencement of the said Act and constitution of new Senate, Syndicate and Academic Council in their place.
It provides that not withstanding anything contained in the Bihar Act XIV of 1960, the respective bodies established under section 3 of the said Act in regard to the Universities covered by the Act shall stand dissolved on the commencement of this Act and thereafter, as soon as may be, they shall be reconstituted, and pending their reconstitution, the Vice Chancellor shall exercise their powers and perform their duties under the said Act for a period not exceeding nine months from such commencement.
The result of this provision is to authorise the Vice Chancellor to exercise the powers and functions of the respective bodies which stood dissolved, for nine months from the date of the operation of this Amending Act, or until the said bodies were duly reconstituted.
It is by virtue of the power conferred on him by this section that the Vice Chancellor has purported to frame new Statutes some of which are challenged in the present proceedings and has issued the impugned order in pursuance of the said new Statutes.
That, in brief, is the position with regard to the statutory provisions in the light of which the dispute between the parties has to be settled in the present appeal.
The two statutes which have been challenged before us may now be set out.
This body of new Statutes came to be pro mulgated on the 18th November, 1962.
After they were thus promulgated, the Registrar of the University of Bihar wrote to the Secretaries and Principals of all Admitted Colleges, except Constituent and Government Colleges, enquiring from them what action had to be taken by the Vice Chancellor or the Syndicate in regard to the constitution of the Governing Body of the respective Colleges and the appointment of 885 Office bearers.
The new Statutes consist of 24 clauses, but for the purpose of the present appeal,, we are concerned only with two of them.
Clause 2, sub clause (4) provides: "in the case of the constitution of the Governing Bodies of admitted colleges (except colleges owned and maintained by Government) framed prior to the making of these Statutes, the Vice Chancellor shall have the power to amend or revise the constitution wherever necessary in order to bring it, as far as possible, in conformity with the provisions of these Statutes" Clause 3(l) reads thus: "The Syndicate may on its motion or at the instance of the Vice Chancellor dissolve and order constitution of Governing Body in admitted colleges or cancel its grant in aid to the college concerned for any one or more of the following reasons: (a) that the college has failed to comply with the directions issued by the Syndicate under the laws of the University within the specified time; (b) that the college has failed to observe the provisions of the laws of the University; (c) improper utilisation of the various funds of the institution; (d) that the affairs of the college have been grossly mismanaged.
Provided, however, that before ordering dissolution of the Governing Body or before passing such order against the Governing Body the Syndicate shall give a reasonable opportunity to the Governing Body to show cause against such action.
" It is clear that cl.
2(4) of the new Statutes expressly confers on the Vice Chancellor the power to amend or revise the constitution of the affiliated colleges; and cl.
3(l) empowers the Syndicate to dissolve and order constitution of their Governing Bodies either on its own motion or at the instance of the Vice Chancellor.
Clause 3(l) also empowers the Syndicate to cancel its grant in aid to the college concerned for one or more of the four reasons specified by it.
The proviso to cl. 3(l) requires that before the dissolution of the Governing Body is ordered, or any similar order is passed under cl. 3(l), reasonable opportunity has to be given to the Governing Body to show cause why such action should not be taken.
In substance, the High Court has come to the conclusion that these two Statutes and the impugned order are valid.
According to the High Court, the impugned order cannot be justified under Statute 3(l) because an opportunity had not 886 been given to the Governing Body of the Rajendra College as required by the proviso.
It has, however, held that the impugned order is valid having regard to the powers confer red on the Vice Chancellor under Statute 2(4).
It also appears that the High Court took the view that the impugned Statutes can be justified by reason of the fact that power has been conferred on the Vice Chancellor to make adaptation or modifications in the pre existing Statutes by section 60(ii).
The question which arises for our decision is whether the impugned Statute 2(4) is valid, and if yes, whether the impugned order is justified.
We may also have to decide whether the impugned Statute 3(1) is invalid either wholly or in part.
The question as to whether the power to make adaptations or modifications justifies the impugned order presents no difficulty, because we have come to the conclusion that the impugned Statute 2(4) is itself invalid, and so, the impugned order must be struck down on that ground.
If the statute on the authority of which the impugned order has been passed is itself invalid, the power to make adaptations and modifications cannot help to sustain the validity of the impugned 'order.
The power to make adaptations and modifications conferred on the Vice Chancellor by section 60(ii) of the Act must be read in the light of the substantive provisions contained in section 30(d) in regard to affiliated college, and they can not obviously justify the impugned order if the impugned Statute 2(4) itself is invalid.
This position cannot be disputed, and so, we go back to the question as to whether the impugned statute 2(4) is valid.
The decision of this question presents also no difficulty, because, on the face of it, the impugned statute is inconsistent with the relevant provisions of the Act.
It will be recalled that the Act proceeds on a broad and well recognised distinction between two categories of collegiate institutions, one instituted by the University and the other admitted to the University or affiliated to it.
Section 4(10) of the Act is based on this distinction, and section 30(d) & (e) also proceed on the same distinction.
Where the University instituted collegiate institutions, naturally the task of instituting is the task of the University, and so, the management and the maintenance of the said institutions is also the University 's responsibility.
The position is substantially different where collegiate institutions are started by other autonomous bodies and they seek admission or affiliation to the University.
In regard to this class of collegiate institutions, their institution as well as their management and maintenance is not the direct concern of the University , that is the concern of the autonomous educational bodies which have sponsored them and which have undertaken the task of instituting, managing and maintaining them.
it is, of course, true that when admitting or 887 affiliating such institutions, the University can impose reason.able and legitimate conditions subject to the provisions of the Act, and it follows that on the failure of such college either to conform to those conditions or on their committing breach of any of those conditions, it would be competent to the University under its relevant powers to disaffiliate them .and deny them the status of admitted colleges; but this power is very different from the power to constitute the Governing Bodies of such autonomous educational bodies.
The University may insist upon the observance of conditions in respect of the composition of the Governing Bodies, but it cannot direct the composition of the Governing Bodies itself; the two powers are distinct and separate.
Whereas in the case of institutions started by the University, the University has to decide who would constitute the Governing Bodies, in the case of affiliated institutions, the University can only lay down conditions and regulations which must be satisfied before the Governing Bodies are constituted; who should constitute the Governing Bodies is a matter for the autonomous educational bodies, which sponsor the collegiate institutions, to decide; how they should be formed, on what principle, and on what basis, are matters which may well form the subjectmatter of conditions imposed by the University while admitting such colleges or affiliating them.
This position, in our opinion, is plain and has to be borne in mind in considering the validity of the impugned Statute 2(4).
Now, what does the said statute purport to do? It purports to authorise the Vice Chancellor to amend or revise the constitution wherever it is necessary.
It would be noticed that this power is inconsistent with section 30(d) of the Act.
it is a power which can be exercised under section 30(e), but that would have relation only to collegiate institutions started by the University itself.
It can have no relevance to affiliated colleges.
If Statute 2(4) had merely authorised the Vice Chancellor to lay down conditions as to how the Governing Bodies of the affiliated colleges should be constituted, it would have been another matter.
The University can effectively bring about a change in the composition of the Governing Bodies of affiliated colleges if it is thought necessary and desirable to do so under its relevant powers, but that must inevitably take the form of prescribing general conditions in that behalf and leaving it to the affiliated colleges to comply with the said conditions.
Non compliance with the said conditions may entail the liability to be disaffiliated; but that is very different from giving the power to the Vice Chancellor of the University to make the necessary changes in the Governing Bodies of the affiliated colleges itself.
It is plain, as we have just seen, that this power is inconsistent with section 30(d) of the Act and as such, is invalid.
888 How this power has been worked out is evident from the impugned order itself.
This order purports to direct the reconstitution of the Governing Body of the Rajendri College with immediate effect in order to bring it in conformity with the provisions of the new Statutes.
Then, it virtually purports to nominate some members of the Governing, Body.
It provides that two staff representatives would continue on the Governing Body as at present.
Then, it adds five persons to the said Governing Body.
Then, it purports to make a change in regard to the three seats reserved for the Founders, Donors, Benefactors or Sponsors, and nominates three persons in that behalf.
It also directs that the co opted member Mr. Bishwanath Prasad Mishra will also continue till the fresh co option is held; then it nominates Mr. Ganga Prasad Sinha, Advocate, Chapra, as the Secretary of the Governing Body of the College with immediate effect.
Thus, it is plain that the power conferred on the Vice Chancellor by statute 2(4) has been exercised by him by not only directing how the Governing Body should be constituted on principle, but by nominating different persons on the Governing Body.
The basis on which a Governing Body should be constituted is very different from nominating several persons on the said Governing Body.
It is the latter course which has been adopted by the Vice Chancellor and which is inconsistent with section 30(d) of the Act.
At this stage, it is necessary to add that the course adopted by the Vice Chancellor in the present case is also inconsistent with Statute 2(4) itself.
The said Statute merely authorises the Vice Chancellor to amend or revise the constitution of the Governing Bodies of admitted colleges whenever necessary, and as we have already held, even the conferment of this power is ultra vires the Statute.
But what the Vice Chancellor has done has gone beyond even Statute 2(4); he has not only amended or revised the constitution of the Governing Body, but has also nominated certain persons on it.
Thus, this action of the Vice Chancellor suffers from the double infirmity that it is inconsistent even with Statute 2(4) and is purported to have been issued under Statute 2(4) which itself is invalid.
Unfortunately, the High Court appears to have failed to take into account the basic difference between the two categories of collegiate institutions, and the powers conferred on the University severally in respect of them.
The view taken by the High Court about the validity of Statute 2(4) completely obliterates the difference between the two kinds of collegiate institutions and treats all collegiate institutions, whether instituted by the University, or affiliated to it, as falling completely under the management of the University itself.
We accordingly hold that Statute 2(4) is invalid, and the impugned order passed under it is, therefore, invalid and inoperative.
889 Then, as to statute 3(1), the Syndicate may have the power to cancel its grant in aid to the callege concerned, but in so far as 3(l)(a) seems to contemplate that if the affiliated college refuses to submit to the order passed by the Syndicate dissolving and ordering reconstitution of its Governing Body, the penalty of the cancellation of grant in aid may follow, it must be held that that part of Statute 3(l) is invalid.
It would be open to the University to direct that the composition of the Governing Body should conform to conditions which may be changed by the University under its relevant powers and if the said conditions are not duly complied with by the affiliated college or its Governing Body, suitable and permissible action may be taken; but in so far as Statute 3 (1) proceeds on the basis that the Syndicate can itself dissolve the Governing Body and order its reconstitution, it suffers from the same infirmity as Statute 2(4).
That is why we hold that Statute 3(l) in so far as it gives power to the Syndicate to dissolve and reconstitute the Governing Body and enables it to cancel its grant in aid to an affiliated college under 3(l)(a) for the reason that the direction issued by the Syndicate in that behalf has not been complied with, is invalid.
The learned Attorney General has relied on the fact that the Vice Chancellor was compelled to pass the impugned order, because the affairs of the Rajendra College were mismanaged and a very grave situation arose as a result of which the authorities were faced with a serious law and order problem.
In that connection, he invited our attention to the statements made in the impugned order in regard to the back ground of circumstances which compelled the issue of that order.
These statements were, however, disputed by the appellant in his writ petition.
The High Court has not con sidered the question as to whether the statements made in the impugned order are proved to be true and we propose to express no opinion 'on that aspect of the matter ourselves.
We are, however, prepared to assume that the Vice Chancellor felt compelled to issue the order and that be acted bonafide in the interests of the students studying in the Rajendra College.
It is quite possible that the affairs of an affiliated college may be mismanaged and a situation may arise where either the University or the Vice Chancellor may feel justified in taking drastic action to save the situation, because, after:all, in dealing with the problem of efficient management of affiliated colleges, the consideration of paramount importance must always be the interests of the students studying in such ,colleges; and so, theoretically, there can be no objection to the University being empowered to take suitable and reasonable action to meet emergencies arising from mismanagement of affiliated colleges which expose the students to the grave 890 risk of interruption in their smooth academic work.
But the question which we have to decide in the present appeal is not whether the University or the Vice Chancellor should not have such power; the question is whether such a power can be claimed by the Statute under the provisions of the Act, and that question, in our opinion, admits of only one answer under the Act as it now stands.
The Legislature may consider whether any suitable amendment should be made in that behalf.
however, is irrelevant to the point with which we are concerned.
There is another consideration which we may incidentally mention in this connection.
The autonomous bodies which institute colleges and help the progress of higher education in this country, are generally run by disinterested persons, and it is of some importance that the autonomy of ' such bodies should not be unduly impaired.
When colleges run by such autonomous bodies seek affiliation to a University, the University undoubtedly has a right to impose reasonable conditions for affiliation and normally, the supervision exercised by the University over the affairs and administration 'of its affiliated colleges effectively serves the purpose of ' requiring the said colleges to conform to the pattern of management and education in force in the Government colleges or colleges instituted by the University.
In resolving a possible dispute between affiliated colleges and the University, attempt should be made to respect the autonomy of the colleges and reconcile the same with the supervisory powers of ' the University which are intended to be exercised in order to make functioning of the affiliated colleges efficient and progressive.
Both the University and the affiliated colleges seek to serve the cause of higher education and there should really be no serious dispute as to the principles on which their mutual relations should be regulated.
Unfortunately, in, the present case, the Vice Chancellor appears to have acted with some haste and he has exercised powers Linder Statutes, which were themselves hastily framed and which are plainly inconsistent with the provisions of the parent Act.
There is one more point to which we must refer before we part with this appeal.
The validity of the Statutes was.
challenged by the appellant on the additional ground that when they were made by the Vice Chancellor, the power con ferred on him by section 35 of Act 11 of 1962 had come to an end.
The said section empowered the Vice Chancellor to exercise, the powers 'of the appropriate Bodies of the University for a period not exceeding nine months, or until the respective Bodies were reconstituted.
The appellant 's case before the High Court was that the Senate had been reconstituted in the first week of November, 1962 and in fact.
notices had been issued to call for a meeting of the said Senate on the 891 30th November.
That being so, with the reconstitution of the Senate the statutory power of the Vice Chancellor under section 35 came to an end, and so, the Statutes which were promulgated on the 18th November, 1962 were invalid.
The High Court has rejected this contention mainly on the ground that the Senate was not duly constituted even on the 30th November, 1962 "inasmuch as the application of Mr. Baleshwar Prasad Choudhary filed, in the High Court was still pending and the question had still to be decided as to whether he was entitled to be a member of the Senate as being a donor of the Dalsingsarai College".
The High Court thought that since an order of stay had been passed by it, there could be no meeting of the Senate even on the 30th November, 1962, and so, after address of the Chancellor, the meeting bad to be adjourned.
It appears that the stay order passed by the High Court was in relation to the direction issued by the Chancellor prohibiting Baleshwar Prasad Choudhary from acting as a member of the Senate and that strictly may not have a material bearing on the question as to whether the Senate had been properly constituted before the 18th Novem ber, 1962 or not.
The appellant 's case is that since a meeting of the new Senate bad been called for the 30th November, by a notice issued in that behalf on the 8th November, it postulates that the Senate had been duly constituted before the 8th of November and for the proper reconstitution of the Senate, it was not necessary that it should actually hold its first meeting.
On the 'other hand, the learned Attorney General contends that the material adduced on the record of these proceedings is wholly insufficient to justify the finding that the Senate had been duly constituted before the 18th November, 1962.
We are satisfied that the contention raised by the Attorney General is sound .
On the available material, we see no evidence on which it could be held that a Senate had been reconstituted on any particular date, and so, we do not propose to record any conclusion on this part of the appellant 's case.
All that we would like to add is that the finding of the High Court on this point should not be taken to be binding, and if in future this question arises, it may have to be decided on the merits afresh.
The result is, the appeal is allowed, the order passed by the High Court is set aside, and the writ petition filed by the appellant is allowed.
An order will accordingly be issued restraining the respondents from giving effect to the impugned order (Annexure A), because the said order, and Statute 2(4) and a part of Statute 3(l) on which it is based are invalid and inoperative.
The appellant would be entitled to his costs from respondent No. 1 throughout.
Appeal allowed.

dataset_name: IN-Abs

summary:
The Vice Chancellor of the Bihar University by an order dated January 13, 1963 directed the reconstitution of the Governing Body of the Rajendra College, Chapra, which was a public institution founded by public charities and was affi liated to the University under section 2(d) of the Bihar State Universities (Patna, University of Bihar, Bhagalpur and Ranchi) Act, 1960, removed the appellant, who was the Secretary of the College and nominated certain persons as members of the Governing Body.
The Act of 1960 was amended by Act II of 1962 and section 35 of the Amending Act provided for the dissolution of the Senate Syndicate and Academic Council functioning prior to it and for the constitution of new bodies in their place and authorised the Vice Chancellor pending such reconstitution to exercise their powers for a period not exceeding nine months.
In exercise of the power conferred by this section the Vice Chancellor framed new statutes under which he purported to pass the impugned orders.
Clause 2(4) of the new statutes conferred on the Vice Chancellor the power to amend or revise the constitution of the affiliated colleges and cl.
3(l) empowered the syndicate either on its own motion or at the instance of the Vice Chancellor to dissolve and order constitution of Governing Bodies.
It further empowered the cancellation of grants in aid to the colleges concerned.
The proviso to cl. 3(l) required that reasonable opportunity must be given to the Governing Body before any action was taken under the clause.
The appellant moved the Patna High Court for a writ quashing the impugned order and the statutes on which it was made.
His case was that the relevant statutes were ultra vires and as such the order was unsustainable.
The High Court held that the impugned order could not be justified under cl.
3(l) as the proviso had not been complied with but that the order was valid under cl.
It further held that the impugned statutes could be justified by section 60(a)(ii) which was introduced by Act II of 1962, empowering the Vice Chancellor to make adaptations or modification in the pre existing statutes.
Held:The Bihar State University Act of 1960 made a clear ,distinction between two categories of collegiate institutions, (1) those owned and maintained by the university and (2) others admitted or affiliated to the University, as was apparent from sections 4(10) and 30(d) and (e) of the Act.
While the University had undoubtedly the power to disaffiliate an institution belonging to the second category on its failure to conform to reason.able and legitimate conditions under the Act subject to which :the affiliation was granted, it had no power to dissolve and 880 constitute the Governing Body of such an institution itself.
Clause 2(4) of the Statutes was inconsistent with section 30(d) of the Act and must be held to be invalid.
The impugned order passed under it therefore must be invalid and inoperative.
Clause 3(l) of the statute in so far as it proceeded on the basis that the syndicate could itself dissolve the Governing.
Body and order its reconstitution suffered from the same infirmity as cl.
That clause in so far at it gave the syndicatethe power to dissolve and reconstitute the Governing Body and cancel grants in aid to an affiliated college for non compliance with its direction issued in that behalf must, consequently, be held to be invalid.
The power conferred by section 60(ii) of the Act must be read in the light of the provisions of section 30(d) in regard to affiliated colleges and since statute 2(4) was itself invalid, the section could not justify the impugned order.
In resolving disputes between affiliated colleges and the university, attempt should be made to respect the autonomy of the colleges and reconcile the same with the supervisory powers of the University intended to be exercised in the interest of efficiency and progress.


judgement:
Appeal No. 398 of 1962.
Appeal by special leave from the judgment and decree dated January 7, 1959, of the Orissa High Court in Appeal from Original Decree No. 57 of 1953.
B.R. L. Iyengar, section K. Mehta and K. L. Mehta, for the appellant.
K. Blimsankaram, B. Parthasarthy, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the respondent.
April 24, 1964.
The judgment of the Court was delivered by J.
RAGHUBAR DAYAL, J.
This appeal, by special leave, raises the question of the correct interpretation of section 18(a) of the (Act I of 1877), hereinafter called the Act.
859 Ramchandra, respondent, executed an agreement to sell the house in suit to the appellant, on February 21, 1951.
The agreement stated that he was in sole possession and en joyment of the house which was his paternal property, that he was the Managing Member and Karta of the family and that for meeting family necessities and discharging certain loans he agreed to sell his undisputed house for Rs. 6,000/on condition that he and his mother would execute a deed of sale in favour of the appellant with respect to the house within a period of one year from the date of the execution of the deed of agreement.
Ramchandra did not execute the sale deed and the appellant instituted the suit for specific performance of the contract.
The trial Court held that the sale was not to be for legal necessity and therefore decreed the suit in part, on the appellant 's depositing a sum of Rs. 6,000/ less the sum of Rs. 300/ paid before the Sub Registrar at the time of the execution of the agreement to sell and less the amount of costs granted to the appellant against Ramchandra within a month and directed that defendant No. 1 would execute the sale deed for the alienation of his interest in the entire house as covered by the agreement and that the plaintiff would be entitled to get possession of the same jointly with defendant No. 2, mother of Ramchandra.
The appellant went up in appeal to the High Court against the dismissal of his suit with respect to the sale of half the house.
During the pendency of the appeal Ramchandra 's mother died and therefore the only question urged on behalf of the appellant at the hearing of the appeal was that Ramchandra, respondent, having perfected his title to the entire house, be made to sell the same.
The High Court did not agree with the contention and held that section 18(a) of the Act did not apply to the facts of the case as it comes into operation subsequent to the sale having taken place.
The High Court therefore dismissed the appeal.
It is against this order that this apeal has been filed.
Section 18(a) of the Act reads: "Where a person contracts to sell or let certain property, having only an imperfect title thereto, the purchaser or lessee (except as otherwise provided by this Chapter) has the following rights: (a)if the vendor or lessor has subsequently to the sale or lease acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest;" 860 The question is whether the expression 'subsequently to the sale or lease ' means 'subsequently to the contract to sell or let ' or means 'subsequently to the execution of the sale deed or lease deed by the vendor or the lessor, as the case may be ' in pursuance of the contract to sell or let.
It is contended for the appellant that this expression means subsequently to the contract to sell or let, while the contention for the respondent is that it means subsequent to the actual sale or lease.
We are inclined to agree with the contention for the appellant.
The case, in a way, is concluded by the decision of this Court in Kalyanpur Lime Works Ltd. vs State of Bihar(1).
In that case the Government agreed to let the lease of the bills to Kalyanpur Lime Works Ltd., but the lease could not be executed as the forfeiture of the lease of a previous lessee was held invalid by the Court.
When the lease of the previous lessee expired, Kalyanpur Works Ltd., wanted the execution of the lease for a period during which the lease to it would have continued if it had been granted in 1934.
This Court held that the case fell within section 18(a) of the Act.
It said at p. 972: "We agree with the High Court that section 18(a) of the applies to the case.
That section lays down that where a person contracts to sell or let certain property having only imperfect title thereto, if the vendor or lessor has subsequently to the sale or lease acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest.
There can be no doubt whatever that when the Government entered into the contract to grant leases to the Lime Co. in 1934, it had an imperfect title, inasmuch as it could not grant a fresh lease to anyone during the existence of the previous lease in favour of Kuchwar Co. No doubt the Government thought it had the right to forfeit those leases and did in fact order forfeiture but it having been found subsequently that the forfeiture was legally invalid, rights of the previous lessees were restored.
As already pointed out above this is not the case of absence of title but is one of imperfect title and hence falls within the meaning of section 18.
After the 31st March, 1948, when the leases in favour of Kuchwar Co. expired, the impediment in the way of the Government to grant leases of the property stood removed, and the Lime Company 's right to get the leases revived in its favour.
This right ; 861 of the plaintiff was resisted by the Government who, on the other hand, granted the leases to defendant No. 2.
The High Court of Patna rightly took the view that section 18(a) was applicable to the facts of this case and although defendant No. 1 was not in a position to grant a lease from the time it agreed to do, the impediment being now removed and a suit for specific performance not being barred, the Lime Company was entitled to sue for that relief.
We have already held in agreement with the view of the High Court that section 18 is attracted to the facts of this case, and the contract of which specific performance can be decreed in favour of the plaintiff is the one embodied in Exhibits 22 and 22(a).
" It is urged for the respondent that in that case it was not contended before this Court that s.18(a) could not apply to the facts of the case as no lease in favour of Kalyanpur Lime Works Ltd. had been executed and that therefore the question now before us was not discussed.
It is also urged that the Patna High Court had not actually applied the pro visions of section 18(a) to the facts of the case but had decreed the specific performance of the contract on the basis of the general principle that the purchaser in a contract to sell entered into in the circumstances of the case, was entitled to sue for specific performance against such interest as the vendor might afterwards acquire in the property and support was found in what was said in article 994 in Fry 's 'Specific Performance ', 5th Edition.
In these circumstances, we would like to consider the question directly before us.
Sections 12 to 20 of Chapter 11 of the Act deal with con tracts which may be specifically enforced.
Section 18(a) deals with the rights of the purchaser or lessee in cases where the vendor has imperfect title to the property which he has contracted to sell or let.
Apparently this must deal with the rights of the would be purchaser or lessee, and not of those who have already got the sale or lease of the property in pursuance of the contract to sell or let.
If the person who contracted to sell or let has completed the sale or the lease transaction, nothing is left for the vendee or the lessee to seek by way of specific performance of the contract.
This is when he himself acts according to the contract.
If he does not act according to the contract, the person who has agreed to purchase or take on lease the property will have to seek enforcement of the contract through Court and then it may be that the Court might not enforce the contract.
The Court will not, in view of the provisions of sections 14 to 17 be able to 862 enforce the contract even with respect to the property over which the person contracting to sell or let had perfect title,.
except in certain special circumstances, dealt with in sections 14,.
15 and 16.
Section 14 deals with cases where the part of the contract which could not be performed bears only a small proportion to the whole in value and admits of compensation in money.
Section 16 deals with the specific performance of a part of a contract when that stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed.
Cases.
coming under these two sections are not expected to give rise to circumstances in which provisions of sub cl.
(a) of section 18 can be applied.
Section 15 deals with the specific perform ance of a contract where the part unperformed is large.
The Court has discretion in such circumstances to direct the party in default to perform specifically so much part of the contract as it could perform provided that the plaintiff re linquishes all claims to further performance, and all right to compensation either for the deficiency, or for the loss ordamage sustained by him through the default of the defen dant.
When a Court has dealt with a case under section 15, no question can however arise for action under section 18(a).
It follows, from the consideration of both the sets of circum stances, viz., when the person contracting to sell or let him self performs his part of the contract and when he is made to perform the contract wholly or partially by Court, the occasion to apply for specific performance of the contract with respect to the property over which the person contracting to sell or let had originally imperfect title, does not arise.
This points to the conclusion that this clause cannot therefore be restricted in its application to cases where actual sale or lease of property had taken place.
If clause (a) of section 18 was to apply after the completion of the sale or lease and on the vendor or lessor acquiring interest in the property in which he had imperfect title to start with, there would be considerable overlapping between the provisions of cl.
(a) of section 18 and section 43 of the Transfer of Property Act.
Section 43 of the Transfer of Property Act comes into play when a person fraudulently or erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for consideration, while cl.
(a) of section 18 would come into play when the person with imperfect title has sold or leased the property.
There is some sort of representation whenever a person sells or leases property, the representation being implicit and to the 863 effect that he is competent to sell or let the property.
Thus there is over lapping of the provisions of the two sections.
The actual right of the transferee under section 43 and cl.
(a) of section 18 is however expressed in different language.
In cases where section 43 operates, the transferee, at his option, can have the transfer operate on any interest which the transferor may acquire in the property at any time during which the contract for transfer subsists.
The illustration to the section indicates that the transferee can require the transferor to deliver the property acquired to him.
The purchaser or lessee on the other hand, acting under cl.
(a) of section 18, can compel the seller or the lessor to make good the contract out of such interest.
The difference between the two provisions is this that in the case of the operation of section 43, no recourse to Court is necessary.
The transfer operates on the property transferred and the transferee can call upon the transferor to deliver the property to him.
The purchaser or the lessor having the right mentioned in cl.
(a) of section 18 has to go to Court to compel the vendor or lessor to perform the contract out of the interest subsequently acquired by him.
The purchaser or lessee goes to the Court to enforce the contract and the contract in cl.
(a) of section 18 must refer to the contract to sell or let and not to the contract of sale or lease, which, as indicated earlier, if voluntary, would have covered the entire property contracted to be sold or leased, and if enforced through Court no occasion for the operation of clause (a) of section 18 would arise.
The expression in cl.
(a) of section 18 should preferably be construed in a way so that there will be no overlapping bet ween the provisions of this clause and of section 43 of the Transfer of Property Act, as ordinarily the legislature does not intend to make duplicate provisions for similar situations.
The use of the words 'vendor or lessor ' in cl.
(a) are no definite pointers to the conclusion that the expression ,subsequently to the sale or lease ' be given the meaning subsequently to the actual sale or lease '.
The sections preceding section 18 deal with specific performance of contracts in general and therefore use the expression 'party to a contract '.
Section 18 deals with the cases of contracts to sell or let and therefore appropriately uses the simple word 'vendor ' or 'lessor ' with respect to the party contracting to sell or let and 'purchaser ' or 'lessee ' with respect to the party agreeing to purchase or take the property on lease.
There is no incongruity in using such expressions so long as one knows to whom those expressions refer.
In fact the word 'purchaser ' or 'lessee ' can be appropriately applied to persons agreeing to purchase or take the property on lease.
864 In this connection reference may also be made to the provisions of cl.
(d) of section 18 which uses the words 'vendor or lessor ' and provides that where the vendor or lessor sues,,,for specific performance of the contract and the suit is dismissed on the ground of his imperfect title, the defendant has a right to a return of his deposit. and to a lien for such deposit. . on the interest of the vendor or lessor in the property agreed to be sold or let.
It is clear that the words vendor or lessor in this clause refer to the person contracting to sell or let the property and who did not perform his part of the contract.
Section 25 of the Act also uses the expression 'vendor or lessor ' who has not actually sold or leased the property.
It provides inter alia that a contract for the sale or letting of property cannot be specifically enforced in favour of the vendor or lessor who comes within the provisions of cls.
(a) to (c) of the section.
The provisions of section 27A also use the expression 'lessor and lessee ' in connection with provisions relating to the contract to let when actually no lease is executed.
There may be another reason for using the expression `sale or lease ' in cl.
(a) of section 18.
Section 13 and illustration (a) read: "13.
Notwithstanding anything contained in section 56 of the Indian Contract Act, a contract is not wholly impossible of performance because a portion of its subject matter, existing at its date, has ceased to exist at the time of the performance.
Illustrations (a)A, contracts to sell a house to B, for a lakh of rupees.
The day after the contract is made, the house is destroyed by a cyclone.
B, may be compelled to perform his part of the contract by paying the purchase money.
* * * * In Pollock & Mulla 's ' ', 8th edition, under section 13, is a note: "Illustration (a) assumes that a contract for the sale of a house does, of itself, transfer the beneficial interest in the house to the purchaser, and make him owner in equity in the English phrase.
This was also the law here before the , came into force.
By section 54 of that Act it is provided that a contract for the sale of immoveable property does not, of itself.
865 create any interest in or charge on such property.
By section 55(5) it is enacted that the risk of destruction is borne by the purchaser only from the date when the ownership appears to pass on execution of a proper conveyance by the vendor [see section 55(l)(d)].
It would, therefore, seem that the illustration cannot now be applied where the is in force.
" It may be that just as illustration (a) to section 13 continues in the Act, the expression 'sale or lease ' continued in cl.
(a) ,of section 18 as at the time cl.
(a) of section 18 was originally enacted some sort of beneficial interest had passed to the person agreeing to purchase the property by the mere agreement to sell, arrived at between the parties.
It has also been urged for the respondent that cl.
(a) of section 18 of the Act applies only when the person contracting to sell or let has imperfect title to the property and not when be is not entitled to the property as is the case in this suit, ,as Ramchandra had no title to half the house.
We do not consider it necessary to decide this question as we are ,of opinion that it cannot be said that Ramchandra had no interest in half the house.
He had interest in the entire house and so had his mother, though in case of actual partition the interest of each would have been fixed at half.
If Ramchandra was not competent to pass title with respect to the entire house during the life time of his mother, he can be said to have imperfect title to it.
We are therefore of opinion that on the death of the mother, Ramchandra obtained title to and interest in the portion of the house which on a private partition subsequent to the contract to sell had taken place between Ramchandra and his mother and that therefore he has to make good his contract out of the property he acquired subsequent to the contract to sell.
It has been submitted for the respondent that it need not be taken for granted that Ramchandra got title to the property which belonged to his mother as it might be that the mother had executed some will.
No such allegation appears to have been made before the High Court where it was urged that Ramchandra had acquired title to that portion of the house.
It was in view of this allegation that the appellant did not argue the appeal on the basis of the ground that had been taken in the memorandum of appeal, the ground being that Ramchandra had agreed to sell for reasons ,of legal necessity.
We therefore do not consider any force in this contention.
L/P(D)) 1 S.C.I 28. 866 We hold that the High Court was wrong in not applying the provisions of cl.
(a) of section 18 of the Act to the facts of the case.
We therefore allow the appeal, set aside the orders of the Courts below and decree the plaintiff 's suit and order that on payment of Rs. 6,000/ minus Rs. 300/ paid to the respondent at the time of the execution of the agreement for sale and such other costs to which the appellant be entitled within a month from the date of the costs being taxed, the respondent will be directed to execute the sale deed of the entire house covered by the agreement in favour of the appellant.
The appellant will get his costs of the trial Court, as decreed by that Court, and of the appeal in this Court, the parties bearing their own costs of the appeal in the High Court.
In case the appellant fails to deposit the amount aforesaid within the time allowed, his suit will stand dismissed with costs throughout.
Appeal allowed.

summary:
The respondent executed an agreement to sell his house in order to meet family necessities for a certain sum on the condition that he and his mother would execute a sale deed in favour of the appellant, On the failure of the execution of the sale deed the appellant instituted a suit for specific performance of the contract.
The trial court held that the sale was not for legal necessity and therefore decreed the suit in part directing that the respondent would execute the sale deed for the alienation of his interest in the entire house and that the appellant would be entitled to get possession of the same jointly with the respondent 's mother.
The appellant appealed to the High Court and during its pendency the respondent 's mother died and therefore the only question urged on behalf of the appellant was that the respondent, having perfected his title to the entire house, be made to sell the same.
The High Court did not agree with the contention and held that section 18 (a) of the Specific Relief Act did not apply to the facts of the case as it comes into operation subsequent to the sale having taken place.
On appeal by special leave.
Held: The High Court was wrong in not applying the provisions of section 18(a) of the Act to the facts of the case.
The expression 'subsequently to the sale or lease ' in section 18(a) means subsequently to the contract to sell or let.
This clause cannot be restricted in its application to cases where actual sale or lease of property had taken place.
Kalyanpur Lime Works Ltd. vs State of Bihar, [1954] S.C.R. 958, referred to.


judgement:
Appeal No.178 of 1963.
Appeal by special leave from the order dated November 27, 1961 of the Central Government Labour Court, Delhi Camp at Madras in L.C.A. No. 564 of 1961.
M.C. Setalvad, J.N. Hazarika and K.P. Gupta for the appellant.
M.K. Ramamurthi, R.K. Garg, S.C. Agarwal and D.P. Singh for the respondent.
December 2, 1.963.
The Judgment of the Court was delivered by DAS GUPTA J.
This appeal arises out of an application under section 33C(2) of the Industrial Disputes Act.
The respondent A.R. Chacko was working as a clerk in the Coimbatore Branch of the appellant Bank when by an order dated June 19, 1959, he was promoted as Accountant and was transferred to the Alleppy Branch of the Bank.
The appellant 's pay in the new post was fixed by an order on July 16, 1960.
By this order he was allowed Rs. 120 as basic pay in the new grade of Rs. 120 10 160 from January 1, 1960.
From August 1, 1960 and thereafter he was allowed to draw Rs. 10 per month as CAIIB allowance.
The petitioner 's case in the application under section 33C(2) is based on the contention that after his promotion to the post of accountant with additional supervisory duties he was entitled to the special allowance of Rs. 40 tinder Para 164 of the Sastry Award.
His case is that he was entitled from the date of his joining as accountant, i.e., from July 13, 1959 (a) to a basic pay of Rs. 95 of his old grade with annual increments due on December 1, every year i.e., at the rate of Rs. 95 in the month of August, September, October and November 1959 and thereafter at the rate of 628 Rs. 100 from December 1959 to November 1960, and thereafter at the rate of Rs. 106 from December 1960; (b) special allowance of Rs. 40 per month for the additional supervisory duties and (c) dearness allowance in terms of the award.
The total amount to which he would be entitled thus would be Rs. 4,495.22.
The amount actually paid to him for the period July 13, 1959 to the end of March 1961 for which the application was brought was Rs. 3637.73.
He claimed to be entitled to the additional amount of Rs. 855.49 and prayed that the Labour Court be pleased to issue a certificate for this amount to the Collector authorising the Collector to recover the amount in accordance with law.
In resisting this application the Bank contended (1) that such an application under section 33C(2) of the was incompetent, (2) that in any case the matter would be one within the jurisdiction of an industrial tribunal and not the Labour Court, (3) that the Sastry Award had ceased to be operative from March 31, 1959 long before the date of the respondent 's appointment as an accountant and so no benefits accrued to him under that award and (4) by his appointment as accountant the respondent had ceased to be a workman and was therefore not entitled to the benefits of the Sastry Award.
The Labour Court rejected all these objections and allowing the application, computed the amount due to the respondent from the Bank to be Rs. 855.49.
Against this decision the present appeal has been filed by special leave.
The first objection raised by the Bank is now concluded by the decision of this Court in the Central Bank of India vs P. section Rajagopalan (1) where it has been held that such an application by workmen lies under section 33C(2) of the Act.
In support of the second objection Mr. Setalvad drew our attention to the second schedule to the , which sets out the matters within the jurisdiction of the Labour Court, but (1) ; 629 does not include any which could be said to cover an application under section 33C(2).
The contention is clearly misconceived.
The schedule refers specifically to section 7 of the Act.
That section lays down that the appropriate government may, by notification in the official gazette, constitute one or more Labour Courts for the adjudication of industrial disputes relating to any matter specified in the second Schedule and for performing such other functions as may be assigned to them under this Act.
Section 33C(2) in terms assigns the determination of the amount of benefit to which the workman is entitled to receive from the employer and which is capable of being computed in terms of money to such Labour Court as may be specified in this behalf by the appropriate Government.
Clearly, therefore, the Labour Court as specified by the government and not the Industrial Tribunal has jurisdiction to deal with this matter.
In support of the third objection raised by the Bank Mr. Setalvad drew our attention to section 4 of the , and argued that in view of this provision the respondent was not entitled to any benefit of the Sastry Award in July 1959 when he was asked to perform the additional supervisory duties.
Section 4 runs thus: "Notwithstanding anything contained in the , or the Industrial Disputes (Appellate Tribunal) Act, 1950 the award as now modified by the decision of the Labour Appellate Tribunal in the manner referred to in section 3 shall remain in force until March 3 1, 1959.
" It is said that the non obstante clause "Notwithstanding anything contained in the " makes the provisions of section 19(6) inapplicable to the Sastry Award and so the provision there that the award shall continue to be binding on the parties until a period of two months had elapsed from the date on which notice is given by any party bound by the award to the other party or parties intimating 630 its intention to terminate the award, does not come into operation.
To this objection two answers are available.
The first is that there is difference between an award being in operation and an award being binding on the parties.
The different provisions made by the legislature in section 19(3) and section 19(6) illustrate this distinction.
Under section 19(3) the award remains in operation for a period of one year.
(The words "from the date on which the award becomes enforceable under section 17A" were inserted after the words " period of one year" by the amending Act of 1956).
Section 19(6) is in these words: "Notwithstanding the expiry of the period of operation under sub section (3), the award shall continue to be binding on the parties until a period of two months has elapsed from the date on which notice is given by any party bound by the award to the other party or parties intimating its intention to terminate the award.
" This makes it clear that after the period of operation of an award has expired, the award does not cease to be effective.
For it continues to be binding thereafter on the parties until notice has been given by one of the parties of the intention to terminate it and two months have elapsed from the date of such notice.
The effect of section 4 of the is that the award ceased to be in force after March 31, 1959.
That however has nothing to do with the question as to the period for which it will remain binding on the parties thereafter.
The provision in section 19(6 as regards the period for which the award shall continue to be binding on the parties is not in any way affected by section 4 of the Industrial Dispute (Banking Companies) Decision Act, 1955.
Quite apart from this, however, it appears to us that even if an award has ceased to be in operation or in force and has ceased to be binding on the parties under the provisions of section 19(6) it will continue to have its effect as a contract between the parties that has been made by industrial adjudication in place 631 of the old contract.
So long as the award remains in operation under section 19(3), section 23(c) stands in the way of any strike by the workmen and lock out by the employer in respect of any matter covered by the award.
Again, so long as the award is binding on a party, breach of any of its terms will make the party liable to penalty under section 29 of the Act, to imprisonment which may extend to six months or with fine or with both.
After the period of its operation and also the period for which the award is binding have elapsed section 23 and section 29 can have no operation.
We can how ever see nothing in the scheme of the to justify a conclusion that merely because these special provisions as regards prohibition of strikes and lock outs and of penalties for breach of award cease to be effective the new contract as embodied in the award should also cease to be effective.
On the contrary, the very purpose for which industrial adjudication has been given the peculiar authority and right of making new contracts between employers and workmen makes it reasonable to think that even though the period of operation of the award and the period for which it remains binding on the parties may elapse in respect of both of which special provisions have been made under sections 23 and 29 respectively may expire, the new contract would continue to govern the relations between the parties till it is displaced by another contract.
The objection that no such benefit as claimed could accrue to the respondent after March 31, 1959 must therefore be rejected.
This brings us to the last objection that on appointment as accountant, the respondent Chacko ceased to be a workman.
Admittedly, the mere fact that he was designated as accountant would not take him out of the category of workman.
This was recognised in para 332 of the Sastry Award when it was said: "The categories of workmen known as Head Clerks, Accountants, Head Cashiers should prima facie be taken as workmen wherever they desire to be so treated but with this important proviso 632 that the banks are at liberty to raise an industrial dispute about such classification wherever they feel that with reference to a particular branch and a particular office a person so designated is really entrusted with work of a directional and controlling nature and perhaps even supervision of a higher type over ordinary supervisory agencies.
" In para 167, where the case of accountants was specially dealt with it was again said: In several cases they will indisputably be officers.
It is difficult to lay down a hard and fast rule in respect of them.
An Accountant oftentimes is the second officer in charge of branches, particularly where the branches are comparatively small.
In big banks where there is a hierarchy of officers there may be a chief accountant, accountants, and sub accountants.
In most of these cases the "accountants" will probably be officers.
There will however be incumbents of such posts, though going under the dignified designation of accountants who are in reality only senior clerks doing higher type of clerical work involving an element of supervision over other clerks as part of their duties.
In such cases where they. can properly be regarded as workman the minimum allowances which we have fixed for sub accountants would equally apply to them.
" The Labour Court appears to have taken proper note of this distinction between accountants who are really officers and accountants who are merely senior clerks with supervisory duties and on a consideration of the evidence on the record as regards the duties actually performed by the respondent Chacko, has come to the conclusion that he was merely a senior clerk, doing mainly clerical duties, and going by the designation of accountant and was in reality a workman as defined in the and doing an element of supervisory work.
633 We can find no mistake in the approach of the Labour Court to the question nor can we see any justification for interfering with its conclusion on the evidence in the case.
All the relevant documents produced have been duly considered by the Labour Court in light of the oral evidence given; and on such consideration it has come to the conclusion that though on paper certain rights and powers were assigned to him and occasionally he acted in the place of the Agent when the Agent was absent, such duties did not form part of his principal and main duties.
Mr. Setalvad drew our attention to a copy of the resolution passed by the Board of Directors under which the respondent as Accountant was authorised "to make, draw, sign, endorse, purchase, sell, discount and negotiate Bills of Exchange, Hundies, Drafts, Cheques, Promissory Notes and other Nego tiable instruments in the name of and on behalf of the Bank and also to operate upon all banking account maintained by this Bank with banks, bankers, and others in India for and on behalf of the South Indian Bank Limited.
" This resolution was dated July 18, 1959 and on the same date a circular letter was issued to all branches sending a binder containing specimen signatures of all the officers of the Bank and the respondent 's name was also included in this list.
In spite of this however, as pointed out by the Labour Court, it does not appear from the evidence that generally Mr. Chacko had occasion to exercise the several powers said to have been granted to him.
A truer picture of his actual functions appears from a document dated August 28, 1961 signed by the Agent which was put in evidence as Ex.1.
and the correctness of which does not appear to have been challenged on behalf of the Bank authorities.
The list of duties mentioned in this document clearly shows that these are almost wholly clerical the only exception being Item 14, viz., "and other work entrusted to him by the Agent from time to time.
" The Labour Court has also pointed out that no power of attorney was granted to Mr. Chacko.
When on a consideration 634 of all the relevant evidence the Labour Court has come to the conclusion that the duties performed by the respondent consisted of clerical work with supervisory functions and were certainly not managerial or administrative as contended for by the Bank, we find no reason to interfere with that conclusion.
It is pertinent to notice that on the Bank 's case a workman in the position of Chacko would on promotion to the rank of an officer from that of a workman be financially a loser by being deprived of the special allowance which he would have got as a workman with supervisory duties without obtaining sufficient recompense for the same because of the performance of the so called managerial and administrative duties.
It is not unreasonable to think that this so called promotion to officer 's grade was really intended to undo the effect of the recommendations of the Sastry Award for this supervisory allowance.
is difficult to understand otherwise that persons with higher responsibilities and managerial duties to perform would in fact be getting less in rupees and annas than what they would be getting as workmen.
In the circumstances, the finding of the Labour Court that the respondent was a workman entitled to the benefits of the Sastry Award cannot be successfully challenged.
All the points taken in the appeal therefore fail.
The appeal is dismissed with costs.
Appeal dismissed.

summary:
The respondent, a clerk in the appellant Bank, was promoted as Accountant and his pay was fixed in the new post.
The respondent filed an application under section 33C(2) of the Industrial Disputes Act claiming that he was entitled from the date of his joining as accountant (a) to the basic pay of his old grade with annual increments due on December 1, every year, (b) special allowance of Rs. 40 per month for the additional supervisory duties under para 164 of the Sastry Award, and (c) dearness allowance in terms of the award, and prayed to the Labour Court for recovery of the amount due to him.
In resisting this application the appellant contended (1) that such an application under section 33C(2) was incompetent, (2) that in any case the matter would be one within the jurisdiction of an industrial tribunal and not the Labour Court, (3) that the Sastry Award had ceased to be operative long before the date of the respondent 's appointment as an Accountant and so no benefits accrued to him under that Award, and (4) that by his appointment as accountant, the respondent had ceased to be a workman and therefore not entitled to the benefit of the Sastry Award.
The Labour Court rejected all these ob jections and allowed the application.
In appeal by special leave.
Held: (i) Such an application by workmen lies under s.33C(2) of the Industrial Disputes Act.
Central Bank of India vs P.S. Rajagopalan, [1964] 3 S.C.R. 140, followed.
(ii) In view of the provisions of section 7 and section 33C(2), the Labour Court as specified by the Government and not the Industrial Tribunal has jurisdiction to deal with this matter.
(iii) The objection that no benefit as claimed could accrue to the respondent after the Sastry Award had ceased to be operative, must be rejected.
The provision in section 19(6) as regards the period for which the award shall continue to be binding is not in any way affected by section 4 of the Industrial Disputes (Banking Companies) Decision Act.
The different provisions made by the legislature in section 19(3) and section 19(6) illustrate the distinction between an award being in operation and an award being binding on the parties.
Section 19(6) makes clear that after the period of operation of an award has expired, the award does not cease to be effective.
Though in consequence of section 4 of the Industrial Disputes (Banking companies) Decision Act, the Award remained in force only until March 31, 1959, it continued to have effect as a contract between the parties that had been made by industrial adjudication in place of the old contract.
(iv) On consideration of the evidence in the present case, the respondent was merely a senior clerk, doing mainly clerical duties 627 and going by the designation of accountant and was in reality a workman as defined in the Industrial Disputes Act doing an element of supervisory work.
The Labour Court has taken proper note of the distinction between accountants who are really officers and accountants who are merely senior clerks with supervisory duties as envisaged by the Sastry Award.