1. The petitioners who are respectively an education society, local managing committee and the college run by petitioner No. 1 Society, have filed this petition under Article 226 of the Constitution of India for issuance of a writ of certiorari for quashing the resolutions passed by the respondent No. 2 i.e. the Executive Council, Nagpur University, Nagpur dated May 23, 1977 and March 11, 1978 recommending setting aside of order of dismissal of respondent No. 4 and asking petitioner Nos. 1 to 3 to reinstate respondent No. 4 in the service of the petitioners and also refusing to withdraw the above mentioned recommendation at the instance of petitioner No. 3 i.e. Hislop College, Nagpur.
2. Petitioner No. 1 - Hislop Education Society Nagpur, runs Hislop College in Nagpur - an educational institution of some repute. Petitioner No. 2 is the local managing committee of the Hislop College. Respondent Nos. 1, 2 and 3 are the Nagpur University, its executive council and the grievance committee appointed by the executive council respectively. Respondent No. 4 is the employee of petitioner No, 3 who is dismissed from service after holding an enquiry by the enquiry committee. This dismissal, on representation being made by the said aggrieved employee was set aside by respondent Nos. 2 and 3 and recommendation was made to the petitioners that the respondent No. 4's dismissal be set aside and he be reinstated in service of petitioner No. 3.
3. In order to appreciate the contentions raised by the counsel appearing for the petitioners and for the respondents, it is necessary to state few relevant facts. The petitioner No. 3 - Hislop College, appointed respondent No. 4 in the year July 1954 as junior clerk. Thereafter he passed his matriculation examination in the year 1951. Respondent No, 4 in due course passed his B. Com. examination in the year 1969 and M.Com. examination in the year 1972, It is not disputed before us that he was confirmed as junior clerk in the year 1958. Subsequently, respondent No. 4 was transferred from the accounts department to the administrative department of the respondent No. 3. Respondent No. 4 came to be promoted as head clerk with effect from May 1, 1972. On December 1, 1972 he was promoted to the post of assistant registrar. While the respondent No. 4 was working in that capacity, it is averred in the petition that several complaints against respondent No. 4 were received. The complaints related to the sending of migration certificate of one student of B.A. Part 1; that respondent No. 4 was not very particular in performance of his duties; that he was in the habit of doing work very late. For all these complaints mentioned in the petition, a show cause notice came to be issued to him on February 4, 1974. Another show cause notice was also issued on February 22, 1974. Ultimately, after considering these various complaints and after issuing various show cause notices as referred to above, the petitioner No. 2 i.e. local managing committee of Hislop College decided to appoint an enquiry committee to enquire into the complaints against the respondent No. 4 in the meeting held on March 21, 1974. Accordingly, the enquiry committee consisting of advocate Shri V.P. Salve - Chairman, Dr. S.N. Mukherjee and Prof. D.Y. Purankar as its members, came to be appointed.. On the same day i.e. on March 21, 1974 a charge-sheet was issued against respondent No. 4 along with the statement of allegations annexed to this charge-sheet. Two days prior to the issuing of this charge-sheet, respondent No, 2 was suspended pending enquiry. After receipt of this charge-sheet and statement of allegations, the respondent No. 4 filed his written statement on March 25, 1974. The charges contained in the charge-sheet as well as material particulars in the statement of allegations will be referred to in detail a little later. It is sufficient at this stage to state that the enquiry committee considered all the charges, recorded evidence of five witnesses on behalf of the petitioner Nos. 1 to 3 and recorded evidence of respondent No. 4 and his one witness though in all three witnesses were cited and ultimately by its report found the respondent No. 4 guilty at the end of the detailed and exhaustive report by the enquiry committee. The committee observed that 'after discussing the entire evidence and documents on record as well as after hearing the arguments of the petitioners as well as respondent No. 4, it found the respondent No. 4 guilty of the charges levelled against him mentioned in the charge-sheet. The committee, therefore looking to the irreparable loss caused to the college by the acts of respondent No. 4 and looking to the gravity and the nature of misconduct committed by the respondent No. 4, recommended that the services of respondent No. 4 as an employee of the Hislop College be terminated.' The committee was also of the view that there being no extenuating circumstances which would compel the committee to recommend lesser punishment, the termination of his services was recommended. It also recorded its last finding that the respondent No. 4 has put the college to irreparable loss and to save the college from any further loss or damage or reputation as also for keeping the moral of the college it would be in the fitness of things that the services of respondent No. 4 Shri Mahadeokar be terminated forthwith.
4. Accordingly, respondent No. 4 was informed by letter dated August 19, 1974 that he was dismissed from the service of Hislop College with effect from August 19, 1974 in consequence of the report of the enquiry committee appointed by the governing body of the petitioner. A copy of the resolution passed by the governing body was annexed to this, letter of dismissal of respondent No. 4.
5. Respondent No. 4 being aggrieved by this order of dismissal made representation on September 28, 1974 to the respondent No. 2 i.e. the executive council of the respondent No. 1. At this stage, it may be stated that the representations were not accompanied by the copy of the report since the petitioners had refused to supply the copy of the same. It is well settled that in order to make effective representations, a copy of the report ought to have been supplied to respondent No. 4, Non-supply of enquiry report did not enable respondent No. 4 to make his representations effectively. However, during the hearing before the respondent No. 3, a copy of the report of the enquiry committee came to be furnished to the respondent No. 4. The grievance committee i.e. respondent No. 3 appointed by respondent No. 2 - executive council, heard the respondent No. 4 as well as the principal of petitioner No. 3. As stated in the early part of the report of this grievance committee, it also called for certain documents. These were the documents produced by the respondent No. 4, the minutes of the proceedings of the governing body, of the college made available by the principal of petitioner No. 3 and papers filed in the university from time to time in connection with applications made by the respondent No. 4 to several authorities including the vice-chancellor and the chancellor of the university. The report which is annexed to the petition is an exhaustive document to say the least and an appendix of chronological events that took place at the time of hearing also is annexed to the said report. The grievance committee apart from examining the correctness and propriety of the findings of the enquiry committee on each of the charges had also dealt with each of the charges and the evidence in support of the charges against the respondent No. 4 and the findings arrived at by the enquiry committee. The grievance committee found it difficult to sustain the findings arrived at by the enquiry committee holding respondent No. 4 guilty of all the charges levelled against him. The grievance committee also dealt with the findings of the enquiry committee one by one and disagreeing with each of these findings ultimately observed as follows:
We are constrained to observe that by the time the enquiry committee's findings had been delivered, the management was completely biased and prejudiced against the applicant, (i.e. respondent No. 4). When the applicant applied for copies of depositions of witnesses and findings of the enquiry committee and the resolution of dismissal on August 23, 1974 he was informed that because he had not applied within 7 days of the communication of the termination order the findings and reasons would not be comminuted to him. As regards other documents he was told that he is not entitled for the same to receive them. Such a reply displays not only prejudice but an attempt to put obstacles in the way of the applicant in getting relief to which he was entitled under the law. The applicant was appointed as assistant registrar by the governing body and he was entitled to file an appeal to the foundation society against the order of dismissal. When an appeal is provided it is elementary that all the proceedings of the enquiry and the report must be made available to the person in whom right to appeal is vested. However, refusal of the management to provide him with this material only accentuates a feeling that the applicant was any how not to be assisted in pursuing his legitimate remedies. The applicant then made a representation to the university which came before this committee after a fairly long time. It is a matter of regret to us that representation made in September, 1074 was kept as it were in a state of suspended animation for over 2 years before it could be enquired into and disposed of by this report.
We have therefore no hesitation in recommending that the order of dismissal passed against the applicant should be set aside and the management be asked to reinstate the applicant in service immediately.
6. Thereafter, the petitioners were by a communication dated July 23, 1977 from the respondent No. 1 requested to take early action on the recommendation of the grievance committee to reinstate the respondent No. 4 in service by petitioner No, 3. It seems that this letter was followed by more letters addressed by respondent No. 1 to the petitioners. In response to these letters, the principal of petitioner No. 3 addressed to the assistant registrar, Nagpur University a letter dated November 4, 1977 requesting to revise his recommendation of reinstatement of respondent No. 4 in the services of the petitioner No, 3. In this letter, several legal contentions were raised and it was contended that neither executive council nor the grievance committee was authorised to order reinstatement and the dismissed employee, if aggrieved, was entitled to appeal to the tribunal of arbitrators referred to in Section 42(2) of the Nagpur University Act 1974. Several other contentions were raised with a prayer that the university be pleased to revise earlier unjustified decision which cannot be complied with, meaning thereby respondent No. 4 could not be reinstated in service of petitioner No. 3. This letter was considered by the grievance committee - respondent No, 3 in its meeting held on March 11, 1976 and the executive committee resolved not to agree with the contentions of the said letter of petitioner No. 3 - principal of His-lop College, Nagpur and the executive council also decided to maintain its earlier decision. Accordingly, the petitioner No. 3 was informed by letter dated April 14, 1978. Thereafter, on May 31, 1978 the principal again wrote to the vice-chancellor asking him to withdraw his earlier directions to reinstate the respondent No. 4 in the service of petitioner No. 3 i.e. Hislop College. As the respondent No. 1 refused to withdraw its recommendation of reinstating the respondent No. 4, the petitioners Nos. 1 to 3 filed the present petition in this Court under Article 226 of the Constitution of India for the reliefs referred to above.
7. Mr. Bobde, the learned Counsel who appeared for the petitioners, has made five submissions against the findings of the grievance committee respondent No. 3 and recommendations made by the respondent Nos. 1 and 2 to reinstate the respondent No. 4 in the service of petitioner No. 3. Firstly, Mr. Bobde contended that when the order of termination of service of respondent No. 4 was passed i.e. on August 14, 1974 the new Nagpur University Act, 1974 (hereinafter referred to as the 'new act') had already come into force on May 21, 1974. Accordingly, the provisions contained in Section 42(2) of the said Act would be applicable and the dispute of the respondent No. 4 with the petitioners would be governed by those provisions contained in Section 42(2) in the new Act and not by the alternate Statute 71 framed under the earlier repealed Nagpur University Act of 1963. Accordingly to him, provision of appeal of a confirmed employee under Statute 71 is excluded by repeal because its provisions are inconsistent with the machinery and forums provided by Section 42(2) inasmuch as if the former operated, the later could have been permanently excluded at the will of the executive council.
8. Secondly, according to the learned Counsel the alternate Statute 71 cannot be considered to be a deeming Statute under the new Act. The learned Counsel submitted that as the Act itself contained a self contained specific remedy that was the only one to be followed. Even according to the saving provisions contained in Section 91(1)(xiii) of the New Nagpur University Act, 1974, alternate Statute cannot be deemed to have been made or issued under the new Act because the senate could not have been delegated with the power to make provision for appeal when the enabling Act itself provided for it. What was contended before us was that the remedy provided under the alternate Statute 71 framed under the old Act, even if it was saved, by the saving provision and even if it was stated that the Statute, Ordinance etc. would be deemed to have been made and passed under the Act, such provisions of alternate Statute 71 could not continue as deemed Statute since the new Act itself provides for a specific remedy, and therefore, the new Act cannot be read so as to have continued a remedy different from the one provided under the new Act itself, The construction which the learned Counsel chose to place on provisions of Section 42(2) of the said Act as well as on provisions in Section 91(1)(xiii) will in effect mean that notwithstanding the deeming provision contained in Section 91(1)(xiii) by a necessary implication, the remedy under Statute 71 was not available to aggrieved confirmed employee like the respondent No. 4, since the Legislature has chosen to provide a specific remedy for this class of employees i.e. confirmed employees in Section 42(2) itself. In effect, the learned Counsel contended before us that a filing of a representation before the executive council which was subsequently transferred to respondent No. 3 - grievance committee appointed by the executive council was without any jurisdiction and the findings of that grievance committee, therefore, were a nullity.
9. Thirdly, the learned Counsel submitted that reading Clause 12, 13 and 14 of Statute 71 carefully what the respondent No. 4 could avail of was a mere representation to the executive council and the distinction between appeal and representation was advisedly maintained in the alternate Statute 71, and therefore, all that grievance committee could have done was to find out whether the findings of and conclusions arrived at by the enquiry committee suffered from the infirmity of violation of principles of natural justice or whether or not opportunity of hearing was given to the respondent No. 4. Respondent No. 3 certainly have no power to sit in appeal and examine the whole record and further to call for more documents and representations which was beyond the jurisdiction and powers of the grievance committee as per the provisions of Statute 71.
10. The learned Counsel next submitted, by referring to the various passages in the report of the grievance committee, that it had exceeded its powers under Statute 71 and it has taken into account extraneous material such as correspondence between the respondent No. 4 and the university, representation made by the respondent No. 4 to the director of education and several other documents. In view of this reliance placed before the grievance committee on extraneous material, the findings on the charges were influenced and the ultimate finding of exonerating respondent No. 4 from all the charges levelled against him was based not on the evidence recorded before enquiry committee, but on certain other material which the grievance committee possibly could not have taken into consideration.
11. Lastly, the learned Counsel contended that the petitioners have been meted out with a discriminatory treatment by the respondent Nos. 1 and 3 inasmuch as after this matter was referred to the grievance committee by the executive council and the grievance committee took cognizance of the representation of respondent No. 4 on November 29, 1976 only four days thereafter i.e. on December 2, 1976 the grievance committee directed in the case of similarly circumstanced aggrieved employee who was dismissed, to avail of the remedy available to him of tribunal and arbitrators under Section 42(2) of the said Act. Several such directions given by the grievance committee in respect of other dismissed employees are annexed to the petition and looking to them the learned Counsel contended that while the respondent No. 3 showed misplaced enthusiasm to receive and deal with the representation by respondent No. 4, it amounted to unwarranted discrimination inasmuch as several other similar representations were directed to the tribunal provided under Section 42(2) of the said Act. According to the learned Counsel, this inconsistency in the method of respondent No. 3 was inexplicable and was discriminatory on the face of it.
12. As against these submissions by the learned Counsel for the petitioners, Mr. Holey the learned Counsel appearing for respondent No. 4 contended that it could not be said that when the proceedings were first initiated by way of issuing a charge-sheet and memo of material allegations against the respondent No. 4 that the only remedy available to him was to approach the tribunal of arbitrators as contemplated by Section 42(2). Relying on the provisions of Section 91(1)(xiii), the learned Counsel contended that the respondent No. 4 also could have availed a remedy of making representation to the executive council. He further contended that as no copy of report was given to him even though asked for, he did not file any appeal before the foundation society as provided in Clause 13 of the alternate Statute 71, and therefore, he resorted to the remedy of making representation to respondent No. 2. It must be stated at this stage that respondent No. 4 did not file any separate return. However, he adopted the returns filed by respondents Nos. 1 to 3 and specifically relied on certain statements in that return which brought out correct facts and which were in his favour. At the stage of arguments also, the learned Counsel made a statement that he would adopt the arguments of Mr. Sanyal - the learned Counsel appearing for respondent Nos. 1 to 3. Placing reliance however, on the Supreme Court decision in M. Karunanidhi v. Union of India A.I.R.  S.C. 689, the learned Counsel submitted that there was no repugnancy or inconsistency between the provisions of Section 42(2) and provisions of alternate Statute 71 for either making an appeal to the tribunal of arbitrators or making representation to executive council.
13. Shri Sanyal appearing for respondent Nos. 1 to 3 was fair enough at the outset to admit that he could not justify the practice adopted by respondent No. 3 in some cases directing the aggrieved employees to the tribunal of arbitrators and in other cases to assume jurisdiction as well as to write lengthily reports. Dealing with the contention of the learned Counsel Shri Bobde, Shri Sanyal first contended that there was a necessary distinction between the provisions of appeal and provisions of representation. In his submission the term 'representation' was of a greater amplitude and of much wider connotation inasmuch as it embraces an area much wider than one covered by a statutory appeal. According to him, powers of the executive council dealing with 'representations' were much wider than the powers of appeal, inasmuch as several other relevant questions could be considered in dealing with representations which otherwise could not be considered while dealing with the statutory appeals, and therefore, if anything the grievance committee was justified in dealing with representation of an aggrieved employee like respondent No. 4 in a detailed and exhaustive manner, as has been done by the respondent No. 3 in the present case.
14. As far as the powers of the grievance committee to call for the documents and other material which was not before the enquiry committee are concerned, the learned Counsel relying on the provisions of Nagpur University Act 1963 contended that as per the provisions of Section 20(ecu), (xx), (xxviii) and (xxix) the executive council would exercise very wide powers and perform such duties which were not only conferred and imposed by the Act, Statutes, ordinance and regulation but also exercise all other powers of the university not otherwise provided for in the Act and Statutes but which are necessary to give effect to the provisions of this Act or Statutes framed thereunder. According to him, the powers so exercised by the executive committee encompass very wide incidental and ancillary powers which would include power to call documents and material even though not presented before the enquiry committee.
15. At this stage, it must be stated that both the respective counsel relied on certain observations in a judgment (1979) Spl. C.A. 2544 with Spl. C.A. No. 3230/1976 and 3231/1976 decided on April 12, 1979 (Unrep.) delivered by the Division Bench of the Court. Now observations just before recording the conclusions are as under:
The other respondents-teachers, if aggrieved by any act of termination of the management of the college of the society, are not affected in any manner by this judgment and are free to agitate their grievances either under Article 52 of the College Code or if they be confirmed under Section 42(2) of the Act.
16. The learned Counsel Shri Bobde appearing for petitioners contended that if a dismissed employee was governed under the provisions of Section 42(2) of the said Act in the matter of termination of service, he could approach to the tribunal of arbitrators. As against this, Shri Sanyal, the learned Counsel appearing for respondent Nos. 1 to 3 also relied on the passage from the same judgment in support of his submission to the effect that the respondent No. 4 being a confirmed teacher with the petitioners is possessed of an effective remedy under Section 42(2) of the Act along with the remedy of Article 52 of the college code for making grievance to the executive council, Shri Sanyal therefore, contended that an aggrieved employee shall be entitled to approach a tribunal or arbitrators under Section 42(2). According to the learned Counsel, this was only an enabling provision and if the dismissed employee so chose, he could also make a representation under the alternate Statute 71, and therefore, it could not be said that the only course open to respondent No. 4 should have been to approach the tribunal of arbitrators alone as contended by Shri Bobde.
17. In dealing with the first contention raised by Mr. Bobde, the learned Counsel, for the petitioners, that since the Act has made a specific provision or a specific remedy for a confirmed employee whose services were terminated by the management, the remedy to make representation under alternate Statute No. 71 was not available to him, it must be observed that such a. submission cannot be accepted if provisions contained in Section 91 regarding repeal and savings are considered in their proper perspective. Admittedly, the New Nagpur University Act of 1974, has come into force from May 21, 1974 and under Section 90 the Nagpur University Act 1963 stands repealed. Section 91 of the said Act deals with saving provisions and states as follows:
91. (1) Notwithstanding the repeal of the said Act
(win) all Statutes, Ordinances, Regulations and Rules, nil notices, and orders made or issued under the said Act, shall, in so far as such Statutes, Ordinances, Regulations and Rules are not inconsistent with the provisions of this Act, continue in force and be deemed to have been made or issued under this Act, until they are succeeded or modified by the Statutes, Ordinances Regulations, Rules, Notices and Orders made or issued by or under this Act:
Provided that, no Statute, Ordinance, Regulation, Rule, Notice or Order made or issued under the said Act, and in force immediately before the commencement of this Act, shall be deemed to be inconsistent with the provisions of this Act, by reason only that the power to make or issue such Statute, Ordinance, Regulation, Rule, Notice or Order under this Act vests in a different authority or body or officer, or that the subject-matter thereof is permissible only under a different form of subordinate legislation or instrument to be made under this Act.
18. Section 42(1) which appears in chap. VI dealing with conditions of service of employees in colleges and recognised institutions reads as follows:
42. (1) Without prejudice to any power to make Statutes contained elsewhere in this Act, the Senate shall make Statutes to provide for the, following matters in respect of teachers and other employees in affiliated colleges and recognised institutions, other than those managed and maintained by the State Government or the University, namely:
(d) security of service;
(e) all disciplinary matters, including this procedure to be followed by the management for holding enquiries, except where an employee concerned is convicted of a criminal charge involving moral turpitude;
(f) the pay, allowances and other benefit, including post retirement benefits and
(g) other conditions of service.
(2) Any confirmed employee who is dismissed, removed or reduced in rank shall be entitled to appeal to a Tribunal of Arbitration consisting of the one member nominated by the Management, one member nominated by the employee concerned and an umpire appointed by the Executive Council. The decision of the Tribunal shall be final.
19. It is not disputed before us that the senate has not framed any fresh Statute dealing either with security of service or dealing with Pay, allowance and other benefits including post retirement benefits and other conditions of service in respect of its employees after coming into operation of the Act. Reading the provisions of Section 42 and Section 91(1)(xiii) together, it becomes clear that as the senate has not made new Statute, Ordinance or Regulations under the new Act, those issued under the old Act and not inconsistent with the provisions of the new Act shall continue in force and shall be deemed to have been made or issued under this Act, until they are modified or superseded.
20. The old Nagpur University Act of 1963 conferred these powers on the 'Court' as it was called and under Section 18 of the said Act subject to such conditions as were prescribed under the said Act, the Court had power to exercise the powers laying down scales of pay and conditions of the employment of the members of the teaching and non-teaching staff in affiliated colleges and recognised institutions and to ensure the observance thereof through the executive council. In exercise of these powers, the court had enacted alternate Statute 71 dealing with the service and conditions of employment for non-etching staff in the non-government affiliated colleges and recognised institutions. Clauses 12, 13 and 14 are relevant in his context and they may be reproduced here as they existed prior to the amendment carried out by the chancellor in 1978 to Clause 12 and 13.
12. Any employee aggrieved by the dismissal or termination by the principal or head of the institution, may appeal to the governing body of the college or the institution within fifteen days from the date of the order. If he/she is not satisfied with the decision of the local managing committee, he/she may appeal to the executive council of the Nagpur University within thirty days from the date of the order. The decision of the executive council shall be final.
13. An employee appointed by the local managing committee has a right to make an appeal against the dismissal or termination of service to the foundation society. If he/she is not satisfied with the decision of the foundation society he/she may appeal against this decision within thirty days from the date of the decision to the executive council of the Nagpur University whose decision shall be final.
14. Notwithstanding anything contained in the above provision, any person in Clause II aggrieved by the order of dismissal or termination by the governing body of a college or institution or the Inundation society, shall have right to represent his/her grievances, within two months, to the executive council of Nagpur University, The decision of the executive council shall be final.
21. Clauses 12 and 13 were amended as per the assent of the chancellor on March 19th and at the end of Clauses 12 and 13 it was further provided that if the employee aggrieved by the dismissal was not satisfied with the decision of the local managing committee, he may appeal to the executive council of the Nagpur University within 30 days from the date of the order. Clause 13 was similarly amended and it was similarly provided that if an employee appointed by the local managing committee was not satisfied with the decision of the foundation society, he or she may appeal against the decision within 30 days from the date of decision of the executive council. In other words, the scheme of the alternate Statute 71 as originally stood was that in case the employee who was aggrieved by dismissal or termination of service or dismissed by the principal or head of the institution, he could appeal to the governing body of the college and if his services were terminated by the governing body, he could appeal to the foundation society. Clause 14 starts with the non-obstante clause and says that notwithstanding anything contained in the above provision, a further right of representation was conferred on such dismissed employee. The plain meaning of non-obstante clause is that either where an employee had filed appeal to the governing body or to the foundation society of even if he had not filed such appeal, he had the right to make representation within two months to the executive council of the Nagpur University.
22. The scheme of alternate Statute 71, therefore, confers an additional right on an aggrieved employee belonging to class II and lays down that an employee, whether confirmed or not, whose services are terminated, has a right to represent his grievances to the executive council. Clause 14 therefore, is wider and confers this right of representation on both the confirmed or non-confirmed employees and even in cases where either they have chosen to file appeals to the governing body or the foundation society or even if they have not filed any appeal a further right to represent to the executive council of the Nagpur University is conferred on them.
23. Reading these three Clause 12, 13 and 14 together, the right of such an employee, whether confirmed or not to make representation is an overriding right as the non-obstante clause would indicate. This very right of making representation is saved by the saving provisions contained in Section 91(1)(xiii). These specific provisions created a legal fiction. The purpose of the legal fiction in this case is that all statutes in so far as they are not inconsistent with the provisions of the New Nagpur University Act of 1974, shall continue to be in force and be deemed to have been made by or under the new Act until these provisions are superseded or modified by the Statutes made or framed under the new Act. Such a power is conferred by provisions of Section 42(1) of the new Act. It is not disputed before us that no Statutes similar to alternate Statute 71 have been framed under enabling Section 42(1) of the new Act.
24. The question then that arises for our consideration is what are the consequences and effects of the repeal of 1963 Act, as well as of the provisions contained in the savings Section 91(1)(xiii). It is well known that a repeal simpliciter without a fresh enactment has the effect of complete effacement or obliteration of the Statute as if it never had been enacted. To prevent such effacement or obliteration of the earlier statute or for that matter even subordinate legislation under the earlier Statute, inspite of its repeal with the purpose of keeping certain rights intact which were acquired or accrued under the repealed enactment, generally a fresh legislation accompanies the repeal and permits continuation or institution of any legal proceeding or recourse to legal remedies which may have been available under the repealed enactment.
25. Therefore, when a saving clause in the new Act is comprehensively worded, the earlier remedies will be available and this also applies with all force to subordinate legislation made under the repealed Statute. The only qualification which will hold a field is that it should not be inconsistent with the provisions of the re-enacted Act.
26. The purpose of this legal fiction under Section 91(1)(xiii) is to make available some remedies to aggrieved employees belonging to class II provided by the earlier Statute until they are superseded or modified by framing fresh statutes under the new Act. What the Section 42(2) of the new Act has done is, in our view, to provide to confirmed employees a further remedy of approaching a tribunal of arbitrators by nominating a member of his choice the other two being, one nominated by the management and an umpire appointed by the executive council.
27. Whether this remedy under Section 42(2) has the effect of repealing by implication the remedies available to the aggrieved employees under the alternate Statute 71, will be adverted to a little later; but it is pertinent to observe at this stage that what Section 91(1)(xiii) does is to make those remedies available by deeming provisions or a legal fiction. It is one of the well laid down cannons of construction of Statutes that full effect must be given to such deeming provisions or to legal fiction and it should be carried to its logical conclusion, This has been reiterated by the several decisions of the Supreme Court. It would be enough if we refer to one or two such reported decisions of the Supreme Court, the first being reported in M.S.T. Corporation v. Official Liquidator : 2SCR499 . In para. 14 of the said judgment, Fazal. Ali, J. who delivered the judgment for the bench has approvingly referred to one of the earlier decisions of the Supreme Court delivered by Bhagwati, J. in B.P. Andre v. Supdt. Central Jail : 1975CriLJ182 .
It is now well settled law that where a legal fiction is created, full effect must be given to it and it should be carried to its logical conclusions.
In the same para, the learned Judge again refers to oft quoted observations of Lord Asquith of Bishopstone in East End Dwellings Co. Ltd. v. Finsbury Borough Council : 2SCR655 .
If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.... The Statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.
Coming near to the decision of a Division Bench of this Court in Anandrao v. P.G. Patil similar savings provisions fell for interpretation inasmuch as the Division Bench was concerned with interpretation of Section 91(xi) of Shivaji University Act (1974) which are pari materia to the provisions of the Nagpur University Act of 1974. In that case, the question that fell for consideration was whether the petitioners were prevented from holding office of dean for two consecutive terms. The petitioners were elected as dean under the provisions of the repealed Act, However, according to the legal fiction contained in Section 91(xi), the appointment of registrar and of the officers and employees of the university validly made under the Act and subsisting immediately before the commencement of the Act were to be deemed to have been made for the purposes of this new Act. The Division Bench, therefore, held that this clause ensured continuity of the deans elected under the repealed Act even after its repeal the clause created a fiction of having been appointed under the new Act for this purpose. Similarly, the provisions with which we are concerned, contain a deeming clause i.e. Section 91(1)(xiii) and as already quoted above, it provides for such legal fiction.
28. Though the deeming provision or legal fiction has to be given its full effect, it must be remembered that these provisions are enacted for a definite purpose and it should be limited to the purpose for which they were created. In other words the effect of the savings of these remedies in Clause 12 and 13 and in Clause 14 is that though in reality they did not exist, they were continued under the new Act and were available to any aggrieved employee belonging to class II. If as stated above, this remedy of approaching executive council by making representation is available to the employees belonging to class II even after coming into force of 1974 Act, then it is difficult to accept the submissions of the learned Counsel for the petitioners Shri Bobde. One distinction which will have to be borne in mind at this stage is that the remedy which is made available under the provisions of Section 42(2) is confined to only Confirmed employees. This submission of the learned Counsel can be divided into three parts. Firstly, he contends that as the new remedy under Section 42(2) is available to the confirmed employees belonging to class II and is self contained remedy, the remedy of representation under the alternate Statute 71 is no more available. Secondly, on placing reliance on certain charges as well as principle of construction of statute, he contends that such remedy even if available stands repealed by implication and thirdly, as an alternative submission, he contends that in any case such remedy which was available under the alternate Statute 71 is no more available since it is either inconsistent or repugnant to a remedy provided under Section 42(2). As we have stated earlier that the remedy provided under the alternate Statute 71, is still available and Mr. Bobde has not disputed this, to the unconfirmed employees of the various colleges who have been dismissed by the management. According to us, all that the provisions of Section 42(2) provide is giving a further remedy in juxtaposition to remedies already available to confirmed employees. The procedure which is contemplated under Section 42(2) is one where the dismissed and aggrieved employee has some say in the composition of the tribunal itself, inasmuch as, he is entitled to nominate an arbitrator of his choice which facility was not available under the alternate Statute 71. We fail to see how this provision under Section 42(2) of having a resort or choice of the panel of arbitrators is mutually exclusive to the remedy available under alternate Statute 71. At the most it can be said that there are two remedies available to an aggrieved conformal employee. It cannot be said by any principle of construction that Section 42(2) provides the only remedy or exclusive remedy to an aggrieved confirmed employee to the exclusion of remedy already available under Statute 71. Provisions of Section 42(2) have to be read in conjunction with provisions of Section 42(1). The senate is empowered under the provisions of Section 42(1) to make statutes regarding pay and allowances and other conditions of service which has relevance for the purpose of our consideration. Reading provisions of Section 42(1) with saving provision of Section 912)(xiii) it is clear that earlier remedy of approaching the executive council by way of representation where having made appeals to the governing body or the foundation society or even in absence of such appeals continues to be available even to confirmed employees belonging to class II. At the most this would be a case of two parallel remedies being available to class II aggrieved employees. However, there are many cases where two procedures or two remedies are made available. This question of availability of two procedures had fallen for consideration before the Supreme Court. For example Bombay Municipal Corporation under Chap. VA of the Bombay Municipal Corporation Act, has a superior or an alternate remedy for eviction of unauthorised occupants from Municipal premises as against the ordinary remedy of civil suit involving expenses and delay so that the Municipal Corporation should be able to bring effectively its policy of slum clearance and speedy development etc. These provisions were challenged on the ground that they were inconsistent with the ordinary procedure as provided under the Bombay Rent Control Act. This challenge was repelled by the Supreme Court in the case of Maganlal Chhaganlal v. Municipal Corporation : 1SCR1 . The observations in Maganlal's case (supra) of Bhagwati J. in that case were approvingly refereed by a Bench of seven Judges in Re. Special Courts Bill : 2SCR476 where the learned chief Justice Shri Y.V. Chandrachud observed as follows;
A statute providing for a different procedure from the ordinary procedure covered by the ordinary Act was not violative of Article 14.
29. Though there is no challenge in this case on the basis of Article 14, these observations are relevant to the extent that two parallel procedures or remedies can be available and whenever a special machinery is devised by the Legislature entrusting the power of determination of disputes to an authority set up by the Legislature it is in addition to earlier remedy. In this case when new forum is provided in addition and not in substitution of earlier forum under Statute 71 it is difficult to see how the earlier remedy of different forum or machinery stands repealed or obliterated. It is not a case where the Legislature has provided a new forum to the exclusion of earlier one. It is well known that in such case there is no vested right to the earlier forum. On the contrary in this case in hand such earlier forum is specifically preserved and continued under deeming provision.
30. As far as the second contention that the provisions of earlier remedy stands repealed by implication in view of specific provision contained in Section 42(2), it is again difficult to pursuade ourselves to accept this submission. In our opinion, it is in fact contrary to the provisions of Section 91(1)(xiii) read with Section 42(1).. It is well known that a power of a legislative body to repeal an Act is co-extensive with a power to enact such a law. It is also well-known that repeal can be expressed or implied. As we have referred earlier, the remedy of representation to the executive council is specifically preserved and continued under the new Act of 1974, and was available to such aggrieved employee until the amendment was carried out to the Section 42 in 1978 when only one man tribunal was substituted for the tribunal of arbitrators as provided in Section 42(2).
31. Not only the argument of learned Counsel that such remedy of representation to the executive council seems repealed by implication is incorrect, but even the amendment carried out in 1978 to Section 42 is indicative of the contrary intention of the legislature. Section 42 was extensively amended by Maharashtra Act No. XI of 1978 and in place of tribunal of 3 arbitrators one man tribunal was provided. The qualifications of such tribunal were laid down in Section 42(A). Section 42(B) provides the remedy of approaching this one man tribunal. We are not concerned with other amended provisions for the decision of this case except the provision contained in Section 42-H which is as follows:
All appeals of employees relating to the matters specified in Section 42 B, which may be pending on the date of commencement of the Maharashtra Universities (Second Amendment) Act, 1977 before any Grievance, Committee or other Committee or officer appointed by or under the authority of the University, shall be transferred to the Tribunal as soon as it is constituted. The Tribunal shall hear and dispose of every such appeal as if it were made under Section 42 B, provided that.. .
In our opinion, this provision contained in Section 42-H is destructive of both the submissions made by the learned Counsel Shri Bobde. In effect, it contemplates not only aggrieved employee had a right to represent his grievance to the grievance committee under the alternate Statute 71, but that this remedy was very much available until the commencement of amending Act XI of 1978. We are, therefore, unable to accept either of these two submissions of the learned Counsel. Even on the ground that there is a presumption against the repeal by implication such a submission of the learned Counsel that alternate Statute 71 stood impliedly repealed on coming into operation of 1974 Act cannot be accepted.
32. At this stage we may also examine the merits of the second submission of the learned Counsel that what the alternate Statute 71 provided was by subordinate legislation and when the principal Act of 1974 itself provides a specific remedy it could be held that such a remedy under the subordinate legislation stood excluded and was no more available to the employees employed after coming into operation of the 1974 Act. We are also concerned in this case with the effect of repeal and savings of subordinate legislation contained in alternate Statute 71. It is true that this subordinate legislation made under Statute ceases to have any effect after the repeal of statute itself. However, it is equally well established that a saving clause providing to the contrary has the consequence of wiping out such an effect of repeal, When the enacted statute therefore by a legal fiction continues the earlier provisions either of the Act or the subordinate legislation, it is difficult to see how much earlier subordinate legislation stands repealed by implication as contended by the learned Counsel. We cannot again pursuade ourselves to accept this submission of the learned Counsel in view of the plain language used in Section 91(1)(xiii). At the cost of repetition, we may observe that continuance of provisions of subordinate legislation by legal fiction, and in this case, remedy of representation conferred on an aggrieved employee to represent to the executive council will be subject to only one qualification and that is this legal fiction or deeming provision cannot be effective in so far as it is inconsistent with the re-enacted provision.
33. The learned Counsel further contended that the legislature could not be deemed to have delegated the essential powers of legislation which it has itself exercised in this case by providing a panel of arbitrators under Section 42(2). In support of this contention, the learned Counsel relied on certain observations contained in the Supreme Court judgment reported in Re. Article 143 Constitution of India and Delhi Laws Act A.I.R.  S.C. 332. He has specifically relied on the following observations of Fugal All J. (at p. 355 para. 74):
The legislature must normally discharge its parliamentary legislative functions itself and not through others. It cannot abrogate its legislative functions. Therefore, while entrusting power to the outside agency, it must see that such agency acts as a subordinate authority and does not become a parallel legislature.
That the legislature cannot delegate its essential legislative functions is too well known a proposition to be re-emphasised here. What is contended before us is that the remedy which is available to the employee under the alternate statute cannot be considered since the legislature itself has provided the same remedy under the re-enacting Act. Attractive though this argument looks, we are unable to subscribe to the same in view of the plain language of the saving provisions contained in Section 91(1)(xiii) read with Section 42(1). The learned Counsel also relied in support of the same proposition on number of other authorities which may be only referred here. Secretary of Stoite v. Mesk & Co. , Ganpat Rai v. The Aggarwal Chamber of Commerce : 4SCR752 , John Mews and Jonah Caster v. The Queen  8 A.C. 339, Stuckey and Ors. v. Hooke  2 K.B.D. 20, Desita Cheryulu v. State of A.P. : AIR1964SC807 .
34. Having realised that the remedy to represent to the executive council was still available to the aggrieved employee even after coming into force of 1974 Act, the learned Counsel then argued that such provision under the alternate statute must be regarded as inconsistent or repugnant to the provisions contained in Section 42(2) of the said Act. The learned Counsel relied on the definition of 'inconsistency' given in Venkataramaiya's Law Lexicon. According to the said Law Lexicon 'inconsistency' implies antagonism, opposition, repugnance. 'Inconsistency' is a word of broad significance, implying contradiction, qualities which cannot co-exist. It further says that judicially defined it means contradictory, inharmonious, logically incompatible, contrary to one another so that both cannot stand, mutually repugnant or contradictory. Things are said to be inconsistent when they are contrary to one to the other, or, so that one infers the negation, destruction, or falsity of the other. The term has been compared with 'incompatible'. In a different context the Supreme Court has laid down the guidelines as to how a provision should be regarded as repugnant. In order to hold that a provision is repugnant or a repugnancy exists in relation to the other provision, the conditions which must be satisfied are as follows: (i) that there is a clear and direct inconsistency between the two provisions; (ii) that such inconsistency is absolutely irreconcilable; (iii) that the inconsistencies between the two provisions are of such nature as to bring two acts of the provisions into direct collision with each and a situation is reached where it is impossible to obey the one without disobeying the other.
35. As we have already indicated, the provisions contained in Section 42(2) are in a way supplemental to the remedy available under Statute 71. Whereas under the later representation is to be made to the executive council, in the former the aggrieved employee himself has a choice to nominate one of his arbitrator on the panel of three arbitrators. The only distinction by way of inconsistency or repugnancy pointed out by the learned Counsel was that Section 42(2) was applicable or confined only to the confirmed employee and the tribunal of arbitrators contemplated in Section 42(2) has been specifically conferred with the power and authority to decide the dispute between the aggrieved employee and the management. We fail to see how these can be regarded at all as inconsistent or repugnant provisions to the remedy of representation under Statute 71. To describe these two provisions as inconsistent or repugnant instead of reading them as complimentary or supplemental is to read something which is not there in either of these two provisions. The learned Counsel had submitted that after coming into force of the new Nagpur University Act, 1974, the respondent No. 4 ought to have gone to the tribunal of 3 arbitrators and therefore remedy to represent to the executive council not being available at all the report of the executive council is an exercise in futility and without jurisdiction and without any legal effect whatsoever. As we have indicated earlier that the remedy under Statute 71 being equally available to the respondent No. 4, it cannot be said that the executive council and therefore the grievance committee which was appointed under Section 69 of the said Act had no jurisdiction and power to deal with the representation made by respondent No. 4.
36. Coming to the next submission of the learned Counsel Shri Bobde that as the legislature had advisedly not conferred a right of appeal on the aggrieved employee to approach the executive council and since there was no inherent right of appeal, the remedy by way of representation was a limited one. The distinction between the appeal and representation was present to the mind of the legislature and therefore, they had designedly and advisedly used the word 'representation' and not 'appeal'. There has been some debate before us as to what is the precise scope of remedy of representation. The width of distinction between representation and appeal has not been succinctly presented before us nor any decision pointing out the distinction has been shown to us. However, the definition of 'representation' given in Webster's dictionary may be of some assistance to find out the precise legal connotation of the word 'representation'. Amongst other meanings of the word' representation' it is stated in the said dictionary that, representation means formal and serious statement (as of facts, reasons or arguments) made against something or to effect a change. The rest of the meanings given in the said dictionary are not relevent. This meaning given in the Webster's dictionary does not enable us to agree with the connotation sought to be given to the word by the learned Counsel. As against Mr. Bobde's contention that in absence of appeal, the right of representation is narrower and limited one, Shri Sanyal advocate, appearing for respondent Nos. 1 to 3 has argued that while the ordinary statutory appeal involves either cancellation or confirmation of the decision of the lower authority, the power of representation is much wider and encompasses passing of other orders also. For example, he argued that the university while dealing with such representation may be faced with the various statutes in regard to the dismissed employee. According to Shri Sanyal, therefore, the powers of representation was much wider than the powers of statutory appeal. He argued that such powers would even include the power to give many reliefs to a dismissed employee in appropriate cases. He further argued that such powers in dealing with representation would empower the authority concerned, in this case the grievance committee to exercise even incidental and ancillary powers in order to effectively carry out the functions entrusted to the authorities under the Act. However, it is a well known rule of statutory construction that a tribunal or a body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. (See Grindlays Bank Ltd. v. The Central Government Industrial Trubunal and Ors. A.I.R.  S.C. 906
37. It was next contended by the learned Counsel Shri Bobde that the grievance committee has gone beyond its powers, assuming that powers dealing with representation are wider than those contained in statutory appeal. He pointed out that there were three various infirmities or defects in the report of the grievance committee. According to him, it was well known that if the domestic enquiry conducted by the committee appointed by the petitioners was properly made and if no infirmities or lacunae were pointed out, the grievance committee could not sit in appeal and it could not have reappreciated the whole evidence and could not have substituted its own view in preference to the view taken by the enquiry committee. He pointed out that the grievance committee went beyond its limits of jurisdiction in calling for certain documents, reports and correspondence. According to the learned Counsel the grievance committee had no jurisdiction to call for such additional material which was not considered by the departmental enquiry committee. The further grievance made by the learned Counsel was that as per the observations contained in pages 180 and 186 of the paper book, the grievance committee has almost decided the correct pay scale of the respondent No. 4, which was not the function of the said grievance committee. He further contended that nearly 44 pages of the report were devoted to the antecedents of the dispute between respondent No. 4 and the petitioners and that has erroneously influenced the findings arrived at by the grievance committee. Relying on a decision of the Supreme Court, he contended that it was such a basic error of jurisdiction that the findings arrived at and conclusions reached by the grievance committee almost set at naught the jurisdiction itself. Again we are unable to accept the submission of the learned Counsel in this regard. We have gone carefully through the report of the departmental enquiry committee as well as the report of the grievance committee. It is not necessary to refer in great details to either of them, Suffice it to say that though on the first impression it may appear that the grievance committee has gone into great details, but that does not make it an erroneous report. In our view, the grievance committee has carefully analysed all the charges which were the basis of the departmental enquiry against the respondent No. 4 and has arrived at the conclusion and findings on those charges on their own merits. The learned Counsel relied on the ruling of the Supreme Court in M.L. Sethi v. R.P. Kapur : 1SCR697 to argue that the committee has been guilty of the assumption of wrong jurisdiction in exercising jurisdiction which never existed. He relied on the observations of Justice Mathew who delivered the judgment for the Bench. In para. 10 and 11 what the Supreme Court has observed in that judgment is that there are many cases where although the tribunal had jurisdiction to enter on the enquiry, it had done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. However, it is not the same thing as assuming jurisdiction which did not exist at all. Erroneous exercise of jurisdiction is not tantamount to want or lack of jurisdiction at all. We cannot agree with the learned Counsel that the grievance committee had no jurisdiction at all. Having gone through the entire report we are also of the opinion that no errors are committed by the grievance committee in dealing with the charges levelled against the respondent No. 4. As far as the main charge of insubordination was concerned, the grievance committee was at pains to point out that main dispute that existed between the petitioners and respondent No. 4 was regarding fixation of his pay scale and approaching the director of education or making representation to vice-chancellor, was really incidental and ancillary to the main dispute. In our view the grievance committee has made no error in not enquiring as to whether charges against the respondent No. 4 were proved or not. We are also of the opinion that the grievance committee has correctly come to its conclusions. We also agree with the grievance committee that none of the charges were so which relate to administration of justice. We are also in agreement with the findings of the grievance committee that the quantum of punishment inflicted on the respondent No. 4 was disproportionate to the charges levelled against him. Now when the charges are held as not to have been proved by the grievance committee, the question of punishment really does not arise but we cannot help observing that on these charges a punishment of dismissal from service was disproportionate.
38. However, Mr. Bobde, the learned Counsel for the petitioner is on a stronger ground when he contends that there is no consistency in dealing with such type of disputes by the respondent Nos. 1 to 3. He has annexed to the petition a number of directions given by the grievance committee whereby the grievance committee directed other aggrieved employees to approach the tribunal or the arbitrators under Section 42(2) of the new Act. It is only in certain selected cases that the grievance committee has chosen to consider representations as in the present case. We are frankly not aware of the reasons which pursuaded the grievance committee to take certain matters for consideration and to direct other matters to the tribunal under Section 42(2) of the new Act. We cannot help observing that this practice is certainly discriminatory and the petitioners are correct in complaining that there is neither rhyme nor reason why this particular case should have been decided by the grievance committee.
39. The learned Counsel Shri Bobde wanted us to set aside the report of the grievance committee as either being beyond its jurisdiction or transgressing its jurisdiction if it had one.
40. As we have observed earlier, we find no infirmity in the findings arrived at by the grievance committee. The grievance committee is a quasi judicial body and has been entrusted with the quasi judicial functions. It is now well settled that a writ of certiorari will lie against a statutory body, like the grievance committee, if it purports to act without jurisdiction or in excess of it or in violation of principles of natural justice.
41. It is also well settled that in exercising jurisdiction under Article 226 of the Constitution though there are no fetters on the powers of the High Court, the quasi judicial body like the grievance committee has correctly decided the representations of the respondent No. 4 and we are of the opinion that no interference is called for. In the last analysis, the discretion whether or not to interfere and if so the manner and extent of such interference must depend upon facts and circumstances of each case. We cannot agree with the contention of Mr. Bobde that the grievance committee assumed the jurisdiction where it had none. We are further of the opinion that the findings of the grievance committee suffer from no glaring error of law or some error apparent on the face of record, or that there has been manifest or substantial miscarriage of justice to the petitioners. On the contrary there has been great injustice done to the respondent No. 4 by his dismissal. We have already observed that we are in agreement with the findings of the grievance committee.
42. In view of the findings which were arrived at, we cannot persuade ourselves to accept any of the submissions of the learned Counsel Shri Bobde, persuasive though they were. In view of these conclusions and findings, the petition must fail and is dismissed. In view of the fact that the respondent No. 4 has not even filed his return to this petition, there will be no orders as to costs.
43. I have had the benefit of reading the judgment delivered by my learned brother. I agree and concur with the order proposed to be passed in this petition, but wish to make a few observations in connection with the points involved.
44. The facts appear fully from his judgment and need not be re-stated.
45. Three contentions were advanced before us and were based upon the coming into force of the Nagpur University Act, 1974 (hereinafter referred to as the 1974 Act) on August 14, 1974. There is, however no dispute that the action against the respondent of termination of his services for misconduct by the petitioner-society commenced by a show cause notice issued on the February 4, 1974 culminating in an order of dismissal which was communicated to him on August 19, 1974. The respondent was governed by statute, which was then in force viz. the Nagpur University Act, 1963.' The Nagpur University Act, 1963 (Maharashtra Act No. 22 of 1964) is repealed by Section 90 of the Nagpur University Act, 1974. The respondent had made a representation to the Nagpur University as provided and permitted under Statute 71, Clause (14). On the date on which this representation was made and which came to be decided after a long time, it is common ground that the 1974 Act had come into operation.
46. The three submissions which are material and which were raised before us were, firstly, that Statute 71 was unavailable for making a representation by the respondent to the executive council, Nagpur University as it was not saved. In substance, the contention was that though Section 91 saves Statutes and Ordinances in force, it does not save those which were inconsistent with the Act. The second submission was; that Section 42 of the 1974 Act provided a complete and self-contained remedy and must be deemed to be in substitution and in place of the remedy provided under Statute 71. Therefore, it was that remedy alone which could be availed of. Thirdly, it was contended that assuming the remedy under Statute 71 was available, representation permitted was not tantamount to an appeal which would permit substitution of the decision or modification or setting aside of the decision reached.
47. I will deal with the last contention first. Clause (14) of Statute 71 gave a right to an employee amongst other things, to represent his grievance within two months to the council against the order of dismissal. One of the definitions of the word 'represent' when used as verb intransitive is 'to make representation against something, a protest or to remonstrate or to state affecting, action or judgment,' as is to be found in Webster's Dictionary, 'Representation' has also been defined to mean in Chambers Dictionary as presentation of a few facts or arguments. The word 'representation' therefore and the right thereunder permit presentation of facts and argument with a view to change the order or judgment against which the representation is made. In that view of the matter and if the power is given to receive a representation and to deal with it, it would not only clothe a body or authority with the power of appeal, but may even go beyond. There is nothing sacrosanct about the word 'appeal'. In dealing with representations, questions of policy may also be taken into account for considering as to what the shape of the final order should be and how the representation should be dealt with.
48. That takes us to the next Question as to whether the representation was impermissible by reason of Section 42 of the 1974 Act. The circumstance which has to be noted in this connection is that the action against the respondent had been commenced before the 1974 Act came into force. If that was so, ordinarily whatever rights he had under Statute 71 of 1963 Act would be saved unless there was anything in the 1974 Act taking away those rights. The right of representation, as pointed out above, is not only a right of appeal, but something more. A right of appeal, it has been held by the Supreme Court in M/s. Ganapati Rai Hiralal v. The Aggarwal Chamber of Commerce, (supra) is a vested right. It was held that;
a person cannot be deprived of a vested right of appeal by a subsequent change in the law-, unless the later enactment, provides expressly or by necessary implication for retrospective effect being given.
This was affirmed and exhaustively dealt with by a judgment of a larger Bench of the Supreme Court in Garikapati v. Subbia Choudhari : 1SCR488 . Some observations therein may be reproduced here as are apposite (at p. 583).
The right of appeal is a ves and such a right 1o cuter the superior Court accrues to the litigant and exists as on and from the date the his commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that, prevails at the date of its decision or at the dale of the filing of the appeal.
This statement of law, therefore, would clearly save the right of representation to the respondent under Statute 71 to the executive council.
49. It would be convenient to turn to the provisions of Sections 91 and 42 of the 1974 Act. Section 91(1)(xiii) firstly protects Statutes and Ordinances which were in force at the commencement of the 1974 Act, which are 'not inconsistent with the provisions of' the 1974 Act. They are to continue in force and be deemed to have been made or issued under the 1974 Act until they are superseded or modified by Statutes or Ordinances made under the 1974 Act. No such Statute or Ordinance under the 1974 Act was made and, therefore, Statute 71 under the 1963 Act would be deemed to be one made under the 1974 Act and continue in force unless it is inconsistent. The principal argument had been that it is inconsistent with the provisions of Section 42 of the 1974 Act.
50. Section 42 of the 1974 Act had been reproduced in the judgment of my learned brother and it is unnecessary to reproduce it again. Sub-section (2) which was pressed into service provided that a dismissed employee who is confirmed was entitled to appeal to a tribunal of arbitration. The contention, therefore, was that this remedy and provisions ousted any other provision which was earlier prevailing. Under Statute 71 there can be no doubt that a remedy of representation was available. The question, therefore, only is whether the remedy provided under Sub-section (2) of Section 42 is inconsistent with the remedy under the Statute.
51. A provision is said to be inconsistent or contradictory if it is mutually repugnant and contrary to one another so that both cannot stand together. Mr. Bobde read inconsistency in Statute 71, Clause (14) with the remedy under Section 42(2). It may be mentioned that the Senate has been given the powers under Section 42(1) to provide for disciplinary matters. Therefore, Statute 71 can be fully deemed to be a Statute providing for disciplinary matters so far as Clause (14) thereof is concerned. It was urged that if the Act provides for a remedy, the subordinate legislation like a Statute under the powers conferred upon the University Senate either under the 1963 Act or 1974 Act cannot take the place of the Act. Apart from the inconsistency, this was the only remedy, it was urged, provided.
52. It cannot be contended with conviction that the Senate under the powers conferred under Section 42(1) could not have provided by Statute a remedy in addition and different than the remedy provided under the Act itself. If such remedies are permissible and could have been provided under the Statute by the senate they would become alternative or additional remedies. The existence of alternative and additional remedies is well recognised. The only limitation is that where one remedy is resorted to, that remedy has to be continued and cannot be abandoned in mid-course. The existence of more than one remedy existing and available side by side to a party has been recognised and held to be valid and not inconsistent or violative of Article 14 of the Constitution in Mangilal Chhaganlal v. Municipal Corporation of Greater Bombay, (supra). But that it cannot be abandoned in mid-course and at the choice of the party, after having commenced one remedy to adopt a different remedy at the time of passing of the order is something which is not permitted as has been held under the Benaras Hindu University Act in Akshaibar Lal v. Vice Chancellor : 3SCR386 . The facts in that case were in a way similar to the facts before us. Ordinance No. 6 under the 1915 Act provided for a procedure for taking disciplinary actions against the University employees. Statute No. 30 under the 1958 Act also provided for such an action. Ordinance No. 6 was saved under the 1958 Act. The action against the appellants before the Supreme Court was initially commenced under Statute 30, but the order ultimately came to be passed under Ordinance No. 6 permitting the University to terminate the services of an employee after giving four months' notice or payment of four months' salary in lieu thereof. The Supreme Court observed after referring to a number of cases to the following effect- (at p. 626)
Where the law allows alternative remedies, one or the other or both can he invoked unless one remedy is expressly or by necessary implication excluded by the other. The question thus is whether there is anything expressly stated by law or clearly implied which would exclude powers under the agreements and Ordinances, when action has been taken under the Statutes.
In that case it was held that though the remedy under the Ordinance was permissible since the Ordinance was subordinate to Statute 30, the Ordinance must stand down in case of a clash. These observations apply to this matter.
53. There is yet one more reason why it must be held that the provisions under Section 42(2) was not the only and exclusive remedy from the course adopted by the Legislature. Section 42(2) was repealed and replaced by Sections 42(A) to 42(H). While doing so in the Objects and Reasons for introduction of the Bill, it was stated:
Several disputes relating to dismissal, removal, otherwise termination of services and reduction in rank of the employees of the private affiliated Colleges in general and of the teachers in such colleges in praticular, are pending for a long time throughout the State. The Universities had appointed Committees to function as an informal machinery for settlement of such disputes. But in several eases, the decisions given by these committees have not been implemented by the managements. In the absence of any supporting statutory provisions, these decisions cannot be enforced.
54. It will be seen therefrom and particularly from Section 42(H) that all those matters which were pending before the executive council, were automatically transferred to the Tribunal appointed under the amended provisions. It cannot be said that the Legislature was unaware that no proceedings could have been pending before the executive council and proceedings would be pending only before the arbitration in case of permanent employees. The amended section though provides for automatic transfer to the tribunal from the executive council, no such provision is made for transfer of arbitration proceedings. It is conceded that after the insertion of Section 42A to 42B the one-man tribunal is the only remedy. The absence of any mention clearly indicates in the first place factually that no such proceedings were pending and secondly, that it was clearly understood that the alternative remedy under Statute 71 was clearly available and was largely availed of.
55. Therefore, both on the ground that the lis was commenced before the 1974 Act came into force and the erstwhile remedies were saved as also the absence of any repugnancy in the provisions of Statute 71 and the Act that it must be held that the executive council had jurisdiction to deal with and decide the representation of the respondent.