Case: Dr. S. Dutt Vs. University of Delhi

5. On 28-4-1953, the appellant wrote a letter to the respondent claiming under the provisions of Sec. 45 of the Delhi University Act an arbitration with regard to various disputes mentioned in it. That section is in these terms : Section 456. By that letter the appellant appointed Professor M. N. Saha, the Celebrated scientist, now deceased an arbitrator and called upon the respondent to nominate another arbitrator. The disputes raised in this letter were, (a) that the appellant had been wrongfully deprived of the selection grade; (b) that by the appointment of Dr. Seshadri, as the Head of the Department of Chemistry, the appellants had been wrongfully superseded; (c) that his dismissal was wrongful. A copy of this letter was sent to Professor Saha. On 2-5-1953, the appellant again wrote to the respondent calling attention to the fact that he had already appointed Professor Saha an arbitrator and requiring it to appoint an arbitrator within fourteen days as provided under the law. On 7-5-1953, the respondent wrote to the appellant that his letter of 28-4-1953 had been considered by its Executive Council on 30-4-1953 and that the Council, for the reasons mentioned, to which it is not necessary to refer, did not propose to take any action in the matter. Thereafter, on 18-5-1953, the appellant addressed a further letter to the respondent in which he stated, "as the said University had failed for 15 clear days to appoint after the service of my said notice" meaning his notice of 2-5-1953, "on the University, please take notice that I hereby appoint Professor M. N. Saha arbitrator appointed by me to act as the sole arbitrator and give his award." The appellant also wrote in similar terms to Professor Saha asking him to proceed with the reference as he had become the sole arbitrator. On 24-5-1953, Professor Saha wrote to the respondent stating that as he had been appointed the sole arbitrator by the appellant, he fixed 15-6-1953 for the hearing of the case. On 12-6-1953, the respondent wrote to Professor Saha intimating that it had been advised that the appellant had no right to call for an arbitration and that the respondent did not recognise him (Professor Saha) as an arbitrator and also he had no jurisdiction to act as one. Notwithstanding this Professor Saha started the arbitration proceedings on 16-6-1953. The respondent appeared by a lawyers before Professor Saha and repeated its objection to his jurisdiction to act as an arbitrator. Professor Saha overruled the respondents objection and held that he had jurisdiction to act as the sole arbitrator whereupon the representatives of the respondent retired from the proceedings which were then continued in their absence7. Professor Saha made an award which is dated 17-6-1953. The material portion of the award is in these terms :4. Whether Dr. Dutt was harassed by the officials of the University and its effectAfter giving the case my careful and earnest attention I find :(a) The steps for giving the Selection Grade of Professors of the University to Dr. S. B. Dutt were wrongfully and without just cause not taken by the University and he has therefore been wrongfully deprived of the Selection Grade(b) The terms of appointment of Dr. Dutt were that he would be also the Head of the Chemistry Department. His removal from Headship was wrongful(c) Dr. Dutt was wrongfully dismissed. His dismissal was ultra vires, mala fide and has no effect on his status. He still continues to be a professor of the University(d) He has been subjected to harassment."8. At the request of the appellant, Professor Saha filed the award in the Court of the Sub-Judge, Delhi, on 24-6-1953. The respondent took various objections to it. The Sub-Judge overruled these objections and passed a decree on 27-5-1954 making the award, excepting a small portion thereof with which this appeal is not concerned, a rule of Court. The respondent filed two appeals from this decree, one in the Court of the senior Sub-Judge, Delhi and the other in the Court of the District Judge, Delhi, as it was in doubt as to which was the proper Court to which the appeal lay. By an order made on 26-11-1954, the High Court withdrew both these appeals to itself for trial, and by its judgment dated 15-1-1955 allowed the appeals and set aside the award on the ground that it disclosed an error on the face of it. The present appeal is against this judgment.

Reasoning:
1. We are in entire agreement with the view expressed by the High Court. There is no doubt that a contract of personal service cannot be specifically enforced. Section 21 Cl. (b) of the Specific Relief Act, 1877, and the second illustration under this clause given in the section makes it so clear that further elaboration of the point is not required. It seems to us that the present award does purport to enforce a contract of personal service when it states that the dismissal of the appellant "has no effect on his status," and "He still continues to be a Professor of the University." When a decree is passed according to the award which if the award is unexceptionable, has to be done under Sec. 17 of the Arbitration Act after it has been filed in Court, that decree will direct that the award be carried out and hence direct that the appellant be treated as still in the service of the respondent. It would then enforce a contract of personal service, for the appellant claimed to be a professor under a contract of personal service, and so offend S. 21(b)3. We are unable to agree that the Judicial Committee laid down the proposition that the learned Counsel for the appellant ascribes to them. When they referred to the reasons for the judgment, they were contemplating a case where the judgment, that is, the award itself, did not disclose an error but the reasons given for it in an appended paper, did. They did not intend to say that no error can appear on the face of an award unless the reasons for the decision contained in the award were given in it.In our view, all that is necessary for an award to disclose an error on the face of it is that it must contain, either it itself or in some paper intended to be incorporated in it, some legal proposition which on the face of it and without more, can be said to be erroneous.This was the decision of the Judicial Committee in the Champsey Bhara and Co., case (A).As the award in this case directs specific enforcement of a contract of personal service, it involves a legal proposition which is clearly erroneousThe award held that the appellant had been dismissed wrongfully and mala fide. Now, it is not consequential to such a finding that the dismissal was of no effect, for a wrongful and mala fide dismissal is none the law an effective dismissal through it may give rise to a claim in damages. The award, no doubt, also said that the dismissal of the appellant was ultra vires but as will be seen later, it did not thereby hold the act of dismissal to be a nullity and, therefore, of no effect.We are also clear in our mind that the contention about the offending portion of the award being a mere surplusage affords no assistance to the appellant for it was not said on his behalf that the offending portion was severable from the rest of the award and should be struck out as a mere surplusage. It, therefore, has to remain as a part of the award and so long as it does so, it would disclose an error on the face of the award and make it liable to be set aside as a wholeThis contention, in our view, also lacks substance. That was not a case based on a contract of personal service. Indeed the contract of the respondent in that case provided that the service was "to continue during the pleasure of His Majesty, His Heirs and Successors, to be signified under the hand of the Secretary of State for India." The respondent had been dismissed by an order made under the hand of the Secretary of State for India, and as he was liable to be dismissed at, the pleasure of the Crown, he could base no complaint against his dismissal on the contract of service and did not, in fact, do so. He founded his suit on the claim that his dismissal by the Crown from the Indian Civil Service of which he was a member, was void and of no effect as certain mandatory provisions of the Government of India Act, 1935, had not "been complied with. The Judicial Committee accepted this claim and thereupon made the declaration that the purported dismissal of the respondent was void and inoperative and he remained a member of the Service at the date of the institution of his suit. The declaration did not enforce a contract of personal service but proceeded on the basis that the dismissal could only be effected in terms of the statute and as that had not been done, it was a nullity, from which the result followed that the respondent had continued in service. All that the Judicial Committee did in this case was to make a declaration of a statutory invalidity of an act which is a thing entirely different from enforcing a contract of personal serviceWe find no basis for this contention. No point as to the dismissal of the appellant being ultra vires had been referred to the arbitrator. The points for decision set out by the arbitrator do not refer to any question of the dismissal being ultra vires. Again the letter of the appellant, dated 28-4-1953, setting out the disputes of which he required decision by arbitration does not make out any case that the dismissal of the appellant by the respondent was ultra vires the latters incorporating statute. His point about the dismissal was that it had been malicious and therefore wrongful; that it had been brought about by a resolution of the Executive Council of the respondent on the basis of the report (also called award) of the investigators,It is clear therefore that the appellant was challenging his dismissal on the ground that the Vice-Chancellor, Dr. Sen, who he said, was inimically disposed towards him, had shut out all discussion on the question and procured a resolution for the dismissal of the appellant and that because of such malicious and wrongful barring of discussion, the resolution was wrongful. It was not the appellants case before the arbitrator that the dismissal was ultra vires the statute or otherwise a nullity. We also find that this point was not advanced in the Courts belowWe do not think that any analogy can be drawn from the wording of the Industrial Disputes Act.That Act is concerned with considerations which are peculiar to it. The proceedings before a Tribunal constituted under that Act cannot be said to be arbitration proceedings nor its decision an award though called an award in the Act, in the sense in which the words "arbitration proceedings" and "award" are used in the Arbitration Act. An award under the Industrial Disputes Act cannot be filed in Court nor is there any provision for applying to Court to set it aside. All considerations that apply to an award under the Industrial Disputes Act, cannot be said to apply to an award made under the Arbitration Act. Furthermore, under Sec. 45 of the University Act; the arbitration held under it is to be governed by the provisions of the Arbitration Act, 1940 and the validity of an award made under such an arbitration has, therefore to be decided by reference to the rules applying to that Act, one of such rules being that the award should not disclose an error on its face. For these reasons, in our view, this argument is unfoundedThis point was decided against the respondent by the High Court. As however the appeal must be dismissed for the reason that the award contains as error on the face of it, as we have earlier found, it becomes unnecessary to decide the point raised by the respondent. We, therefore, do not express any opinion on this question.