TMI Blog2014 (12) TMI 1403X X X X Extracts X X X X X X X X Extracts X X X X ..... iolation of statutory provisions by the management. The petitioner contends that the action of the management terminating the service of the petitioner is in violation of the provisions of the Act, 1985 as well as Chapter XLV of the M.G. University Statutes, 1997 - There is no dispute that salary of teachers and employees is being paid by the State. The fourth respondent College is undoubtedly a private body, but it is obliged to carry on its function as per the statutory obligations imposed by the Act, 1985 and the Statutes framed thereunder - The service conditions of a Principal and teachers of an affiliated College are governed by the statutory provisions. The Writ Petition, at the instance of such teacher or Principal, is thus, clearly maintainable. The petitioner's appointment not being on deputation, treatment of the appointment of the petitioner as deputation and termination of the deputation is wholly without jurisdiction and beyond the power of the management. The management could have taken disciplinary action in accordance with Section 63 of the Act, 1985 and could not in any other manner terminate the employment of the petitioner - The petitioner, who was substa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commended to be appointed as the Principal. The recommendation of the Selection Committee was forwarded to the University for approval as required by Section 59(8) of the Act, 1985. The University approved the appointment, which was communicated to the College by letter dated 31.3.2001. The College issued an appointment order to the petitioner appointing him as Principal with effect from 3.7.2000. The petitioner referred an application to his earlier institution, i.e., 5th respondent for being relieved. In the letter the petitioner requested the 5th respondent to relieve him with lien of five years. The 5th respondent College issued relieving order dated 3.7.2000 mentioning that the petitioner's lien is retained in the post of Lecturer (Selection Grade) in English for a period of five years. 4. The petitioner was placed under suspension by order dated 3.9.2003 of the 4th respondent College pending disciplinary proceedings. Challenging the order dated 3.9.2003, the petitioner filed W.P(C). No. 29801 of 2003. In the Writ Petition a preliminary objection was raised by learned counsel for the management that the Writ Petition having been filed against a private body was not main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , after receipt of the notice, prayed for a clarification vide his letter dated 1.9.2004. The petitioner stated that three punishments have been proposed, i.e., removal from service, reduction to the post of Selection Grade Lecturer and sending back to M.A. College, Kothamangalam. The petitioner enquired as to what exactly the punishment proposed was. The management replied vide letter dated 3.9.2004 clarifying that the punishment proposed is only the punishment of removal from service or reduction to the lower post of Selection Grade Lecturer in English in 4th respondent College. The petitioner submitted his explanation to the show cause notice vide his letter dated 22.9.2004. The Manager, as the disciplinary authority, issued order dated 12.10.2004 informing the petitioner that the petitioner's appointment on deputation as Principal of St. Mary's College stands terminated with effect from 12.10.2004 and he stands reverted to the post of Selection Grade Lecturer in English in Mar Athanasius College, Kothamangalam. The petitioner, after receipt of order dated 12.10.2004 and relieving order dated 15.10.2004, submitted a representation to the Manager requesting to withdraw or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince the management is yet to take a final decision on the basis of the enquiry report and as the petitioner has an effective alternative remedy of filing an appeal before the Tribunal, we feel it unnecessary to pronounce upon the question whether the writ petition is maintainable or not. We therefore leave that question open to be decided in appropriate proceeding. We also make it clear that if the petitioner has got a contention that the disciplinary proceedings were initiated without jurisdiction it is always open to him to raise the same before the Tribunal. 7. When the matter came up for hearing before the Division Bench, it was contended by learned counsel appearing for the management that as per the earlier judgment of the Full Bench, the Full Bench has relegated the petitioner to file appeal before the Tribunal under Section 63(6) of the Act, 1985, hence, the remedy of the petitioner is to approach the University Appellate Tribunal, whereas before the learned Division Bench the petitioner contended that Exhibit P14 order dated 12.10.2004, which is impugned in the Writ Petition, is not an order of punishment, but only an order informing the petitioner that the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated to the University receiving grant from the State and governed by the provisions of Section 85 of the Act, 1985 and the Statute framed thereunder. It is submitted that the State pays the entire salary of the staff. 10. The petitioner further submitted that he, after order dated 12.10.2004, could not join in the fifth respondent College and was out of employment for a substantial period, except for two spells of period when he obtained an employment, i.e., (1) from 15.12.2006 to 2.12.2011 and (2) from 12.9.2013 to 13.6.2014. 11. Sri. Gopala Krishna Kurup, learned Senior Counsel appearing for the fourth respondent contended that the Writ Petition against the fourth respondent College is not maintainable. He submitted that the fourth respondent College is a minority institution, which has a right to appoint its Principal and also a right to terminate the Principal. He submitted that the petitioner's appointment was in fact a term appointment for five years only and it was only at the instance of the University that the appointment letter dated 3.7.2000 was sent to the University, which did not mention any term of the appointment. He submitted that the petitioner having b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he termination of the petitioner from the post of Principal in the manner as carried out by the fourth respondent is contrary to the provisions of the Act, 1985 and the Statutes framed thereunder? (V) What relief the petitioner is entitled to in the present Writ Petition? ISSUE No. (I) - MAINTAINABILITY 14. The fourth respondent College being a minority institution, affiliated to the M.G. University and salary of teachers and staff being paid under the direct payment scheme by the Government, whether against the action impugned in a Writ Petition is maintainable under Article 226 of the Constitution is the question to be answered. The Full Bench judgment on which reliance was placed by learned counsel for the management is Madhavan Pillai's case (supra). The facts and ratio of the Full Bench is as follows: 15. In the above case a teacher of a private College was dismissed pursuant to disciplinary enquiry. The College was affiliated to the Kerala University under the Kerala University Act, 1974. The Statute provides for procedure for imposing penalty challenging the disciplinary action. It was contended that the management itself being the accuser cannot conduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed by a statute. The college, or the managing Committee in question, is not a statutory body and so the argument of Mr. Setalvad that the case in hand will fall under the third exception cannot be accepted. The contention of counsel that this Court has subsilentio sanctioned the issue of a writ under Art. 226 to quash an order terminating services of a teacher passed by a college similarly situate in (1965) 2 S.C.R. 713 and, therefore, the fact that the college or the managing committee was not a statutory body was no hindrance to the High Court issuing the writ prayed for by the appellant has no merit as this Court expressly stated in the judgment that no such contention was raised in the High Court and so it cannot be allowed to be raised in this Court. The principle was reaffirmed recently in Vaish College case AIR 1976 SC 888 where the court observed: It seems to us that before an institution can be a statutory body it must be created by or under the statute and owe its existence to a statute. This must be the primary thing which has got to be established. Here a distinction must be made between an institution which is not created by or under a statute but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he disciplinary action taken by the college against a teacher was sought to be quashed in writ proceedings. It was observed: It is not correct to think that since the college has to have a committee of management as required by S. 16A a managing committee that looks after the affairs of the basic section of the college must also be functioning as a statutory body discharging duties under the Intermediate Education Act and governed by the Regulations framed thereunder. The Division Bench sought support for the view it had taken from some provisions in the Educational Code of Uttar Pradesh but as pointed out by the learned single Judge, the Code is only a compilation of the various administrative rules and orders relating to educational institutions in the State and has no statutory force. The decision is directly applicable. 16. From the facts and circumstances of the case and the pleadings on record, it is clear that the Writ Petition has been filed challenging violation of statutory provisions by the management. The petitioner contends that the action of the management terminating the service of the petitioner is in violation of the provisions of the Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the expression nature , for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Court to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. 20. The term authority used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants on the maintainability of the writ petition. 18. A private body on which public duty has been imposed by a Statute, can thus be commanded to perform statutory duty and any violation in performance of statutory duty can be complained in writ proceeding; thus where allegation of statutory violation is made, Writ Petition is clearly maintainable under Article 226 of the Constitution. Another recent judgment, which has been referred to by learned counsel for the management is Ramesh Ahluwalia v. State of Punjab (2012)12 SCC 331, which fully supports the submission of the petitioner that the Writ Petition is maintainable. Following was laid down in paragraph 12 of the judgment: 12. We have considered the submissions made by the learned counsel for the parties. In our opinion, in view of the judgment rendered by this Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust there can be no doubt that even a purely private body, where the State has no control over its internal affairs, would be amenable to the jurisdiction of the High Court under Article 226 of the Constitution, for issuance of a writ of mandamus. Provided, of cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatutory power or doing a public or a statutory duty. 22. In the above case, the Delhi High Court issued a writ to the Principal of a private college on the ground that the principal was conferred with powers under ordinances of the University of Delhi regarding attendance of the students and that hence the exercise of such powers was subject to the jurisdiction under Article 226 of the Constitution. 23. In Rameshswarup Gupta v. Madhya Pradesh State Cooperative Marketing Federation Ltd. AIR 1976 MP 125, one of the questions before a Full Bench of the Madhya Pradesh High Court was whether a writ in the nature of Mandamus can be issued to a Cooperative Society registered under the Madhya Pradesh Cooperative Societies Act, 1960. After holding that such a cooperative society is not a statutory body, the Full Bench observed thus: ...normally such Societies (Cooperative Societies registered under the provisions of the M.P. Cooperative Societies Act, 1960) will not be amenable to writ jurisdiction of the High Court except in cases where according to the provisions of the Statute or rule or regulations framed under the Act by which the Society is governed, there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the appellant and the College was that of a servant and master and the appellant was to file a suit for damages, against which judgment, the matter went to the Apex Court. Paragraphs 12 and 13 of the judgment was relied on by the Full Bench, which are to the following effect: 12. Whereas in the case of Prabhakar Ramkrishna Jodh v. A.L. Pande, (1965) 2 SCR 713, the terms and conditions of service embodied in clause 8(vi)(a) of the 'College Code' had the force of law apart from the contract and conferred rights on the appellant there, here the terms and conditions mentioned in Statute 151 have no efficacy, unless they are incorporated in a contract. Therefore, appellant cannot found a cause of action on any breach of the law but only on the breach of the contract. As already indicated, Statute 151 does not lay down any procedure for removal of a teacher to be incorporated in the contract; so, clause 5 of the contract can, in no event, have event a statutory flavour and for its breach, the appellant's remedy lay elsewhere. 13. Besides, in order that the third exception to the general rule that no writ will lie to quash an order terminating a contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt held that the College Code confers legal rights in favour of the teacher and the view taken by the High Court is erroneous. It is useful to quote the following observation of the High Court: It is not disputed on behalf of the respondents that the College Code has been made by the University in exercise of statutory power conferred by s. 32 and under s. 6(6) of the Act. It is also conceded on behalf of the respondents that the College Code is intra vires of the powers of the University contained in s. 32 read with s. 6(6) of the Act. In our opinion, the provisions of Ordinance 20, otherwise called the College code have the force of law. It confers legal rights on the teachers of the affiliated colleges and it is not a correct proposition to say that the College Code merely regulates the legal relationship between the affiliated colleges and the University alone. We do not agree with the High Court that the provisions of the College Code constitute power of management. On the contrary we are of the view that the provisions of the College Code relating to the pay scale of teachers and their security of tenure properly fall within the statutory power of affiliat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntainable and remanded the matter for fresh consideration by the High Court. 23. Vidya Ram's case (supra) was also a case of termination of services of a teacher by the Managing Committee. The termination was challenged on the ground that the Managing Committee acted in violation of principles of natural justice. The learned Single Judge had allowed the Writ Petition against which appeal was filed. The Division Bench allowed the appeal and dismissed the Writ Petition against which order the matter was taken in the Apex Court. In Vidya Ram's case (supra) reliance was made by learned counsel for the appellant on Prabhakar Ramkrishna Jodh's case (supra). The Apex Court noted the ratio in Prabhakar Ramkrishna Jodh's case (supra) and held that the Writ Petition was rightly entertained. Following was laid down in paragraph 9 of the judgment in Vidya Ram's case (supra): 9. Mr. Setalvad contended that since the college in question is affiliated to a statutory body, namely, the University of Lucknow, and is governed by the relevant statutes and ordinances framed under the provisions of Lucknow University Act, 1920, any violation of the statute or the ordinance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso conferred legal rights on the teachers of affiliated colleges. The Court further said. It is true that Clause 7 of the Ordinance provides that all teachers of affiliated colleges shall be appointed on a written contract in the form prescribed in Sch A but that does not mean that teachers have merely a contractual remedy against the Governing Body of the College. On the other hand, we are of opinion that the provisions of Clause 8 of the Ordinance relating to security of the tenure of teachers are part and parcel of the teachers' service conditions........ When once this Court came to the conclusion that the College Code' had the force of law and conferred rights on the teachers of affiliated colleges, the right to challenge the order terminating the services of the appellant, passed in violation of clause 8(vi)(a) of the College Code in a proceeding under Article 226 followed as the night the day and the fact that the appellant had entered into a contract was considered as immaterial. The observation of the Apex Court in the above paragraph clearly culls out the ratio that if the Court comes to the conclusion that the College Code had the forc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging Committee of the said College is satisfied that it is necessary to remove the said Lecturer for misconduct, insubordination or habitual neglect of duty on the part of the said Lecturer or in case any of the conditions herein specified have been broken by the said Lecturer provided that an opportunity is given to him by the said Managing Committee to give his explanation before a decision is arrived at. 11. On a plain reading of statute 151, it is clear that it only provides that the terms and conditions mentioned therein must be incorporated in the contract to be entered into between the college and the teacher concerned. It does not say that the terms and conditions have any legal force, until and unless they are embodied in an agreement. To put it in other words, the terms and conditions of service mentioned in Statute 151 have proprio vigore no force of law. They become terms and conditions of service only by virtue of their being incorporated in the contact. Without the contract, they have no vitality and can confer no legal rights. 12. Whereas in the case of Prabhakar Ramkrishna Jodh v. A.L. Pande, (1965) 2 SCR 713, the terms and conditions of service embod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a non statutory body was not allowed to be raised, cannot lead to the conclusion that the Apex Court accepted the said objection as a valid objection to entertainability of the Writ Petition. 25. In view of the above, it is clear that the ratio of four Judge judgment in Prabhakar Ramkrishna Jodh's case (supra) that a Writ Petition can be entertained at the instance of a teacher of a private College affiliated to the College, whose service conditions are governed by a statutory provision still holds good and no tinkering of the said ratio can be read in Vidya Ram's case (supra). The Full Bench of this Court in Madhavan Pillai's case (supra) followed the judgment in Vidya Ram's case (supra) without referring to the ratio of Prabhakar Ramkrishna Jodh's case (supra), which was a four Judge Bench judgment and was binding. 26. The second case relied on by the Full Bench is Prem Lata's case (supra), where services of a teacher in Basic Section of the College was terminated. It was held by the Supreme Court that Basic Section is not a part of recognized institution. Recognized institution is governed by the statutory provisions of the Uttar Pradesh Intermedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned orders affecting the respondent. The appeal is accordingly allowed, the Judgment of the Division Bench is set aside and that of the Single Judge restored. There will be no order as to costs. 27. The aforesaid two judgments of the Supreme Court did not lay any ratio that even if there is a statutory breach, Writ Petition will not lie. The Full Bench relied on a ratio in those two judgments, which was not there. Further, the judgment of the Apex Court, as noted above in Andi Mukta SMVSSJMS Trust's case (supra) and Ramesh Ahluwalia's case (supra) and Prabhakar Ramkrishna Jodh's case (supra) are clearly applicable in the present case which lays down that a Writ Petition is maintainable if there is violation of statutory obligation. In view of the judgments of the Apex Court, as noted above, the Writ Petition is clearly maintainable and we are of the view that the Full Bench judgment of this Court in Madhavan Pillai's case (supra) cannot be followed in view of the clear pronouncement laid down by the Apex Court as noted above. 28. The service conditions of a Principal and teachers of an affiliated College are governed by the statutory provisions. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ala Service Rules for a period not exceeding five years. In the case of those private college coming under the Direct Payment Scheme, the prior permission of the Government shall be obtained. 31. Learned counsel for the management submitted that the management had appointed the petitioner only for five years, but the said term was not mentioned in the papers, which were submitted to the University, since the University had objection against any limited appointment. From the papers, which have been forwarded by the management to the University, it is clear that the appointment was not for a period of five years and the University had granted approval on a retirement vacancy without there being any limitation of tenure. 32. The Act and the Statute provide a procedure for filling up of a substantive vacancy by direct recruitment. The substantive vacancy is filled up by direct recruitment. According to the procedure prescribed in the Statute, appointment to the substantive vacancy under the Act and Statute is not an appointment on any contract or appointment fixed for a limited period. The appointment made to a substantive vacancy cannot be claimed to be made for any fixed perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove, the management initiated a disciplinary enquiry against the petitioner and after receipt of the enquiry report, the management issued a show cause notice to the petitioner, where it proposed two punishments, i.e., (1) removal from service; and (2) reduction to the lower post. It is useful to quote paragraph 2 of the letter dated 3.9.2004 of the management, which is to the following effect: At the outset itself I make it clear that there is no ambiguity or infirmity in the show cause notice issued by me as per proceedings dated 17.8.2004. The punishment proposed in my proceedings dated 17.8.2004 is either (1) removal from service or (2) reduction to the lower post of Selection Grade Lecturer in English in the Department of English in St. Mary's College, Manarcaud. There is no proposal for a third punishment as wrongly assumed by you in the show cause notice. A show cause notice, proposing more than one punishment in the alternative, is legally permissible. In the case on hand, the disciplinary authority is of the opinion that charges proved in the enquiry merit imposition of either of the two major punishments proposed in the show cause notice. You are free to show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not based on any material or is perverse: Provided that the Appellate Tribunal may admit an appeal presented after the expiration of the said period of sixty days if it is satisfied that the appellant had sufficient cause for not presenting the appeal within that period. 33. Chapter 45, Part D, Statute 73 enumerate the penalties which can be imposed in the following manner: 73. Penalties: The following Penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on teachers of private college, namely:-- (i) Censure; (ii) Withholding of increments or promotion; (iii)(a) Recovery from pay of the whole or part of any peculiarly loss caused to the private college by his negligence or breach of orders; (b) recovery from pay to the extent necessary of the monetary value equivalent to the amount of increments ordered to be withheld where such an order cannot be given effect to. 37. Under sub-section (6) of Section 63 of the Act, 1985, it is provided that against an order imposing penalty, a teacher is entitled to file appeal before the Appellate Tribunal within 60 days. The order dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Magistrate, but decreed by the learned Additional Civil and Sessions Judge. The Full Bench also affirmed the decree of the First Additional Civil and Sessions Judge decreeing the plaintiff's suit. After referring to various judgments of the Apex Court, the following has laid down by the Apex Court in paragraph 17 of the judgment: 17. On a consideration of the authorities mentioned above, it is, therefore, clear that a contract of personal service cannot ordinarily be specifically enforced and a Court normally would not give a declaration that the contract subsists and the employee, even after having been removed from service can be deemed to be in service against the will and consent of the employer. This rule, however, is subject to three well recognized exceptions - (i) where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India; (ii) where a worker is sought to be reinstated on being dismissed under the Industrial Law; and (iii) where a statutory body acts in breach or violation of the mandatory provisions of the statute. To the same effect another judgment was relied on by l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also stated that the petitioner is going to attain the age of superannuation on 30.4.2015. Learned counsel for the fourth respondent in his statement has given details of payment which could have otherwise been received by the petitioner, had he continued in the employment, except for the period in which he was employed as noted above. Upto the period treating 30.4.2015 as the age of superannuation, the fourth respondent has calculated the total amount, which would have been paid to the petitioner, had he been in service as ₹ 50,74,364/-. 45. In the facts of the present case and in view of the submission made by learned counsel for the parties, we are of the view that interest of justice will be served in directing payment of a lump sum amount to the petitioner by the management of the fourth respondent College, instead of directing reinstatement to the post of Principal. In the result, we allow the Writ Petition, setting aside Exhibit P14 order dated 12.10.2004 with direction to the fourth respondent to make payment of a lump sum amount of ₹ 50,00,000/- (Rupees fifty lakhs only) in lieu of salary which the petitioner could have received, had he not been termina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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