TMI Blog1989 (4) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court was delivered by K. JAGANNATHA SHETTY, J. These appeals, by certificate, are from a common judgment of the Gujarat High Court giving some monetary benefits to the respondents. The facts of the case cane be quite shortly stated: The appellant no. 1 is a public trust and other appellants are its trustees. The trust was running a science college at Ahmedabad. The college initially had temporary affiliation to the Gujarat University under the Gujarat University Act, 1949. From June 15, 1973 onwards, the college had permanent affiliation under the said Act as amended by Gujarat Act No. VI of 1973. The University teachers and those employed in the affiliated colleges were paid in the pay scale recommended by the University Grants Commission. At one stage, there was some dispute between the University Area Teachers Association and the University about the implementation of certain pay scales. That dispute, by agreement of parties, was referred to the Chancellor of the University for decision. On June 12, 1970, the Chancellor gave his award in the following terms: "(1) That the revised pay scales as applicable to teachers who joined before April 1, 1966, should similarly be ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provident fund and gratuity dues in accordance with the Rules framed by the University and pay them compensation that would be payable to them under Ordinance 120 E and they may be further directed to pay the difference of pay payable to them on the implementation of the U.G.C. pay scales in accordance with Government Resolution as clarified by the Award passed by the Chancellor." As is obvious from these reliefs, the retrenched persons were not agitating for their continuance in the service. They seem to have made a tryst with the destiny and accepted the closure of the college. They demanded only the arrears of salary, provident fund, gratuity and the closure compensation which were legitimately due to them. The trust, however, resisted the writ petitions on every conceivable ground. The objections raised by the trust may be summarised as follows: (i) The trust is not a statutory body and is not subject to the writ jurisdiction of the High Court; (ii) the Resolution of the University directing payment to teachers in the revised pay scales is not binding on the trust; (iii) The University has no power to burden the trust with additional financial liability by retrospectively re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese appeals. Per- haps, this Court wanted to find out the reaction of the State on the appellants' assertion for reimbursement. We heard counsel for the State. He disputes the appellants' claim. In fact, he challenged the claim on a number of grounds. He says that the State is under no obligation to pay the appellants as against the sum due to the respondents. We do not think that we need rule to day on this controversy. It is indeed wholly outside the scope of these appeals. We are only concerned with the liability of the management of the college towards the employees. Under the relationship of master and servant, the management is primarily responsible to pay salary and other benefits to the employees. The management cannot say that unless and until the State compensates, it will not make full payment to the staff. We cannot accept such a contention. Two questions, however, remain for consideration: (i) The liability of the appellants to pay compensation under Ordinance 120E and (ii) The maintainability of the writ petition for mandamus as against the management of the college. The first question presents no problem since we do not find any sustainable argument. The power of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Biswas case. There again a dismissed lecturer of a private college was seeking reinstatement in service. The Court refused to grant the relief although it was found that the dismissal was wrongful. This Court instead granted substantial monetary benefits to the lecturer. This appears to be the preponderant judicial opinion because of the common law principle that a service contract cannot be specifically enforced. But here the facts are quite different and, therefore, we need not go thus far. There is no plea for specific performance of contractual service. The respondents are not seeking a declaration that they be continued in service. They are not asking for mandamus to put them back into the college. They are claiming only the terminal benefits and arrears of salary 'payable to them. The question is whether the trust can be compelled to pay by a writ of mandamus? If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to Mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be den ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry, and so forth. But there were important safeguards. In particular, in order to qualify, the applicant had to get the leave of a judge. The Statute is phrased in flexible terms. It gives scope for development. It uses the words "having regard to". Those words are very indefinite. The result is that the courts are not bound hand and foot by the previous law. They are to 'have regard to' it. So the previous law as to who are--and who are not--public authorities, is not absolutely binding. Nor is the previous law as to the matters in respect of which relief may be granted. This means that the judges can develop the public law as they think best. That they have done and are doing." (See--The Closing Chapter--by Rt. Hon Lord Denning p. 122). There, however, the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty. The 'public authority' for them mean every body which is created by statute--and whose powers and duties are defined by statue. So Government departments, local authorities, police authorities, and statutory undertakings and corporations, are all 'public authorities'. But there is no such limitation for our High Courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Art. 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "Any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation .owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied. In Praga Tools Corporation v. Shri C.A. Imanual Ors., [1969] 3 SCR 773, this Court said that a mandamus can issue against a person or body to carry out the duties placed on them by the Statutes even though they are not public officials or statutory body. It was observed (at 778): "It is, however, not necessary that the person or the author ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
