1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6314 OF 1997 Shri R.P. Dorasthawar ...Petitioner vs. The Director, Western Regional Instrumentation Centre, Mumbai & Anr. ...Respondents Mr.Mihir Desai for the Petitioner. Mr.P.M. Palshikar for Respondent No.1. CORAM : V.M. KANADE, J. DATED : JULY 1, 2009 ORAL ORDER :- 1 By this petition which is filed under Articles 226 and 227 of the Constitution of India, the petitioner is challenging judgment and award passed by the Industrial Court dated 14.10.1997 whereby the complaint filed by the petitioner vide Complaint (ULP) No.1155 of 1990 in the Industrial Court was dismissed. Brief facts giving rise to the 2 present petition are as under :- 2 The petitioner was initially appointed as a Technician  C (Photography) by the Executive Council of the University of Bombay by letter dated 16.5.80. The respondent - Western Regional Instrumentation Centre, hereinafter referred to as WRIC was established as an institution by the University of Bombay under Section 4(4) read with Section 2(17) of the Bombay University Act, 1974 as per the guidelines given by the University Grants Commission. The University decided to give functional autonomy to WRIC and therefore, Executive Council of the University of Bombay in its meeting held on 30.8.1980 decided to register WRIC as a society under the Societies Registration Act, 1950. Accordingly, WRIC was registered as a society on 28.5.81. On 6.3.85, the Maharashtra Non-Argicultural Universities and Affiliated Colleges Standard Code Rules came into existence. The petitioner worked as a Technician (Photography) from 1982 to 1984. 3 Thereafter, he was assigned the work on the xerox machine since the photography section had become non-functional. The Director of respondent no.1 wrote a letter to the petitioner dated 21.9.89 informing him that the Governing Council of respondent no.1 WRIC had decided to close the photography unit and the post held by the petitioner was abolished. He was also informed that he was being appointed in Sir J.J. College of Architecture with effect from 1.10.89 by the University of Mumbai. The petitioner, however, was released from Sir J.J. College on 31.1.90. Thereafter, there was some correspondence between the Vice Chancellor and Sir J.J. College of Architecture. However, ultimately, the Principal of J.J. College refused permission to the petitioner to sign the muster roll of the said college. Thereafter, on 5.10.90, office order was issued by respondent no.1 stating that in view of clause 52 of sub-clause 2(d) of the said Code, the petitioner was retired from service on account of abolition of this post. 4 3 Being aggrieved by the said order of retirement issued by the respondent dated 5.10.90, the complaint is filed by the petitioner in the Industrial Court under Item nos.1(a), 4(b) and 4(f) of the Schedule II and Item Nos.5, 9 and 10 of Schedule IV of MRTU and PULP Act, 1971. Ad-interim order was granted in favour of the petitioner and this order was continued by further orders till the disposal of the complaint. The Industrial Court, however, by order dated 14.10.97 was pleased to dismiss the complaint. Thereafter, the present petition is filed by the petitioner. 4 The learned Counsel for the petitioner submitted that the Standard Code was not applicable in the case of respondent no.1 institution and therefore, the letter of termination which was issued under provisions of the Standard Code was illegal. He submitted that if it is held that the Standard Code is not applicable to respondent no.1  5 institution, then in that case, the provisions of the Industrial Disputes Act and the Employment Standing Orders Act become applicable to the employees of respondent no.1. It was submitted that therefore, terms and conditions of employment of the petitioner were governed by the Model Standing Orders or certified Standing Orders. It was submitted that admittedly, no certification had been done in respect of the Standing Orders and therefore, the Model Standing Orders were clearly applicable to the petitioner and the respondent no.1 institution. Shri Mihir Desai, learned Counsel, therefore, submitted that there was no provision for compulsory retirement under the said Model Standing Orders and and therefore, order passed by respondent no.1 compulsorily retiring the petitioner would amount to illegal termination not permissible under the law. It was submitted that the Standing Orders Act would become applicable by operation of law or by specific exemptions granted by the State. It was, therefore, submitted that if the Standing 6 Orders does not apply, then in that event, the provisions of the Industrial Disputes Act will be applicable and consequently, provision of Sections 25F, 25N, 25H would be applicable in the present case. Alternatively, it was submitted that even if the Standard Code is held to be applicable, even then in view of Rule 137 of the Pension Rules provides that unless it is impossible to provide employment to the employee, he should not be compulsorily retired. It was submitted that though a post was available with Sir J.J. College of Achitecture, instead of absorbing him in the J.J. College, the petitioner was sent back to respondent no.1. The learned Counsel, therefore, submitted that he was entitled to get back wages with continuity of service and benefits from 14.10.97 till the date he reached the age of superannuation in December 2007. It was, therefore, submitted that the petitioner should be treated to be in continues service from the date of his initial appointment and with all consequential benefits. In support of the said 7 submission, the learned Counsel relied on the judgment of the Apex Court in the case of U.P. State Electricity Board and others vs. Hari Shankar Jain and others, reported in II LL.J. Supreme Court Page 399. He also relied on the Division Bench judgment in the case of Smt.Premlala Digambar Raodeo vs. The Principal,St.Phelomine s Convent High School and others, reported in 1997(2) Bombay C.R. Page 591 and the judgment of the learned Single Judge of this Court in the case of Sangam Education Society and another vs. Mu.Bharti Hansraj Borkar and another, reported in 1995(4) Bombay C.R. Page 621. 5 On the other hand, the learned Counsel appearing on behalf of respondent no.1 submitted that the Standard Code was clearly applicable and since there was no post available with respondent no.1, he had to be issued letter of retirement. He submitted that the Tribunal after going through the record had held that there was general practice 8 which has not been followed by the petitioner herein. He relied on the judgment in the case of M.L. Binjokar vs. State of Madhya Pradesh reported in 2005 5 SC 290. 5 Heard the learned Counsel for the petitioner and the learned Counsel for the respondent, at length. 6 The first question which falls for consideration is whether the provisions of the Standard Code will apply in the present case. 7 Under Section 77A of the Bombay University Act, the State is empowered to formulate a Standard Code for non-teaching staff at the University and allied institutions. This section permits Standard Code to be prescribed by the State instead of Officers, teachers and other employees of the University and the teachers and other employees in the affiliated colleges and recognised institutions 9 (other than those managed and maintained by the State Government). Though the Bombay University Act, 1977, was repealed by the Maharashtra Universities Act, 1994, the savings clause of the new Act protects the existing code and as such, the Standard Code as formulated under the Bombay University Act continues to be applicable to the non-teaching staff of the University and other allied institutions. It has been submitted by the petitioner that the respondent no.1 is not an affiliated college and is also not a recognised institution under the University Act as per the definition of Sections 2(1), 2(23) of the said Act. It was submitted that Section 2(17) defines an institution, however, it applies only to academic institution. It was submitted that since the respondent no.1 was not academic institution or a recognised institution, the Standard Code would not be applicable to the petitioner. It was further submitted that the petitioner is also not a university employee. This submission cannot be 10 accepted since it has been brought on record by the respondent that the Governing Council in its meeting held on 3.10.87 also resolved that the Standard Code is applicable to its employees. The following resolution was passed in the said meeting :- Resolved that the Centre will continue to follow the prevailing university rules and regulations governing the service conditions of the employees (including officers) as contained in the Standard Code. 8 Thus, the respondent no.1 has adopted the Standard Code and a resolution was passed to that effect in the Governing Council s meeting held on 3.10.87. Similarly, by letter dated 14.2.89 written by the Deputy Secretary to the Government to the Director Western Regional Instrumentation Centre, the Director has been informed that the Standard Code is applicable to the non-teaching staff of the WRIC. Thirdly, the Director of respondent no.1 had written a letter dated 18.1.89 to the petitioner herein informing him that the Standard Code which is applicable to the employees of the University of 11 Bombay is also applicable to the employees of WRIC. The petitioner also has given an acknowledgment of having received the said letter. In view of the aforesaid documents, therefore, it is abundantly clear that the Standard Code still is applicable to the employees of respondent no.1. Rule 52 of the Standard Code reads as under :- Retirement :- (1) The Employee after confirmation, shall continue in the service of the University or the College till he completes the age of Superannuation. (2) The Competent Authority shall require the employee to retire from the service of the University or the College, if - (a) the employee has reached the age of superannuation. (b) the employee has committed misconduct or has been found to be inefficient. (c) the employee is found by the Medical Authority to be incapacitated for further service of any kind under the University or the College. It includes the retirement on account of mental or bodily infirmity; and 12 (d) the post held by the employee is abolished and there is no suitable post equal to his post in which he can be absorbed. 9 In the present case, it is an admitted position that the Governing Council in its meeting held on 6.1.89 examined the total workload of the photography unit of respondent no.1 wherein the petitioner was working as Technician and it was observed that the workload had been extremely low all along and therefore, a resolution was passed to close down the photography unit with immediate effect and consequently, the post of photographer  Technician C was abolished forthwith. Further, since no suitable post equal to the post occupied by the petitioner was available, the University placed the petitioner on trial basis at Sir J.J. College of Architecture. However, thereafter, Sir J.J. College of Architecture did not allow the petitioner to work in their institute and since it was not possible for the university to accommodate 13 the petitioner after one year in its meeting held on 28.9.90, the Governing Council took a decision to retire the petitioner as per the provisions contained in the said section 52(2)(d) of the Standard Code and he was compulsorily retired on 5.10.90. In view of this, submission made by the learned Counsel appearing on behalf of the petitioner that the Standard Code is not applicable to the employees of respondent no.1 cannot be accepted. 10 Therefore, even if the respondent no.1 is not affiliated to the university or is not a recognised institution, even then the Governing Council of the respondent no.1 having adopted the Standard Code and the respondent no.1 being informed about it, it cannot be said that the Standard Code is not applicable to the employees of the respondent no.1. 11 Once it is held that the Standard Code is 14 applicable to employees of respondent no.1, the alternate submission made by the Counsel appearing on behalf of the petitioner that the provisions of the Industrial Disputes Act apply to respondent no.1 cannot be accepted. Therefore, the question of non- compliance of Sections 25F, 25N and 25H does not arise and consequently, the Employment Standing Orders Act also will not apply to the respondent no. 1 institution. 12 So far as the third submission on the question of malafide and victimisation is concerned, the Industrial Court has perused evidence on record and has held that there was no victimisation on the part of respondent no.1. The Industrial Court also has observed that though the show cause notice was issued against the petitioner herein and memos were issued to him from time to time, no action was taken against him and if the intention of the respondent no.1 was to victimise the petitioner on account of his trade union activities, then they could have 15 promptly taken action against the petitioner herein. The Industrial Court has given cogent reasons and has considered the material on record while arriving at the said conclusion. There is no reason to interfere with the said finding while exercising the writ jurisdiction of this Court. 13 The learned Counsel appearing on behalf of the petitioner has relied on the judgment of this Hon ble Court in Shri Owesh Alam Mohd Yakub vs. The Principal of Maharashtra College of Arts, Science and Commerce and another, reported in 2001 1 BCR Page 226. However, in my view, the ratio of the said judgment will not apply to the facts of the present case since the said judgment considered the powers of the University Tribunal under Section 59 of the Maharashtra University Act and consequently, it was held by this Court that the College Tribunal could test the validity of termination on the anvil of the provisions under the Industrial Disputes Act. In my view, the said ratio will not apply to the facts of 16 the present case. 14 The scope of judicial review under Article 226 of the Constitution of India of the orders passed by the Industrial Court is very limited. In my view, therefore, no case is made out for interfering with the order passed by the Industrial Court while exercising writ jurisdiction of this Court. 15 Writ Petition, accordingly, is dismissed. (V.M. KANADE, J.)