9911796707
TMI Blog2014 (12) TMI 1403X X X X Extracts X X X X X X X X Extracts X X X X ..... ef facts giving rise to this Writ Petition now need to be noted. 3. The petitioner joined the service of the fifth respondent as Lecturer in English. The fourth respondent College issued an advertisement in the University News dated 8.5.2000 inviting applications for appointment to the post of Principal of the College. The post of Principal in the fourth respondent College fell vacant on 31.3.2000 due to the retirement of the earlier incumbent. The petitioner submitted an application for the said post. A Selection Committee was constituted in accordance with Section 59 of the Mahatma Gandhi University Act, 1985 (hereinafter referred to as 'the Act, 1985'). Selection was conducted in accordance with the provisions of Section 59 of the Act, 1985 by duly constituted Selection Committee. The petitioner was recommended 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be relied on in respect of each charge, as well as the witnesses to be examined. The petitioner was earlier informed on 13.9.2003 about the appointment of the inquiry officer to conduct the disciplinary enquiry. The letter dated 13.9.2003 was referred to as charge sheet. The petitioner filed his statement of defence on 21.11.2003 as also additional statement of defence on 7.1.2004. After enquiry, a report dated 30.1.2004 was submitted holding certain charges to be proved. Show cause notice dated 17.8.2004 was issued to the petitioner by the Manager directing the petitioner to show cause why punishment of removal from service or punishment of reduction to the lower post of Selection Grade Lecturer in English in the Department of English in St. Mary's College, Manarcaud should not be imposed. The petitioner, 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 vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the parties, it is necessary to refer to the earlier Full Bench judgment of this Court in W.P(C). No. 29801 of 2003. Although the issue of maintainability of the Writ Petition against a private body was referred to, the Full Bench disposed of the Writ Petition in the following manner: "4. We are of the view, the question whether a Writ Petition is maintainable against a private college need not be gone into in the facts and circumstances of this case. The enquiry ordered against the petitioner has reached its final stage. Enquiry report has already been served on the petitioner. The management is yet to take a final decision on the enquiry report. On the basis of the enquiry report, if the management imposes any punishment, petitioner has got an effective alternative remedy by way of appeal before the University Tribunal under Section 63(6) of the M.G. University Act. Since 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 16 of KSR, the petitioner's lien in the earlier College had come to an end on his subsequent appointment in the 4th respondent College. He submitted that the petitioner's lien in 5th respondent College being not in existence, there was no question of the petitioner being reverted to the 5th respondent College. He further submitted that there is no question of availing the alternative remedy before the Tribunal, since the appeal before the Tribunal can be filed only against a punishment imposed, whereas the order dated 12.10.2004 cannot be said to be any punishment order within the meaning of the Act, 1985. The petitioner submitted that he thus has no remedy, except to approach this Court. 9. The petitioner, on the question of maintainability of the Writ Petition, contended that the Writ Petition before this Court is maintainable against the College, since the College is affiliated 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arose for consideration before the Full Bench: "(I) Whether the Writ Petition filed by the petitioner challenging the order dated 12.10.2004 and seeking other reliefs as quoted above is maintainable under Article 226 of the Constitution of India, the fourth respondent being minority private institution affiliated to the University and receiving aid from the Government? (II) Whether Exhibit P14 order dated 12.10.2004 is an order imposing punishment within the ambit of Section 63 of the Act, 1985 and has the petitioner statutory remedy to file appeal before the University Tribunal under section 63(6) of the Act, 1985? (III) Whether the appointment of the petitioner to the post of Principal can be treated to be an appointment on deputation for a period of five years terminable at the instance of the management of the fourth respondent College? (IV) Whether the 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the University but that would not make it a statutory body, nor give the teacher a statutory status. In the absence of these, it has been well recognised by series of decisions that the aggrieved teacher would not be entitled to relief under Art. 226. In Vidya Ram v. S. J.N. College (AIR 1972 SC 226) Mathew, J., surveyed the case law on the subject with special reference, in particular to the Vidyodaya University's case (1964 (3) All. E.R. 865) and to the decision of the House of Lords in Malloch v. Abordeen Corpn. (1971 (1) WLR 1578) and the many decisions of the Supreme Court, and summarised the position thus: "13. Besides, in order that the third exception to the general rule that no writ will lie to quash an order terminating a contract of service, albeit illegally, as stated in 1964 (3) SCR 55 : (AIR 1964 SC 1680) might apply, it is necessary that the order must be the order of a statutory body acting in breach of a mandatory obligation imposed 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 can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch would be the fountain head of its powers. The question in such cases to be asked is, if there is no statute would the institution have any legal existence. If the answer is in the negative, then undoubtedly it is a statutory body, but if the institution has a separate existence of its own without any reference to the statute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body.' In Arya Vidya Sabha, v. Kashi K.K. Srivastava AIR 1976 SC 1073 the same position was repeated in regard to the Dayanand Mahavidyalaya Degree College, Varanasi, an institution affiliated to the Banaras Hindu University. It was said that it was not creature of the statute but an entity like a company or a cooperative society or other Body created under the statute. The matter arose out of proceedings in a suit. The same was the position in regard to the Vaish College. 10. Commissioner, Lucknow Division v. Prem Lata AIR 1977 SC 334 the question directly arose in writ proceedings in regard 10 Colvin Taluqdars' College, Lucknow, run by a society registered under Societies' Registration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of public duty. The "public authority" for them means everybody which is are defined by statute. 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 to issue the writ "in the nature of mandamus". Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to "any person or authority". It can be issued "for the enforcement of any of the fundamental rights and for any other purpose". XX XX XX 19. The scope of this article has been explained by Subba Rao, J., in Dwarkanath v. ITO: (SCR pp. 540-41) "This article is couched in comprehensive phraseology and it ex-facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public responsibilities. (Cf. Halsbury's Laws of England, 3rd Edn., Vol. II, p. 52 and onwards.)" 22. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor de Smith states: "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract." We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. In Hatsbury's Laws of England (III Edition) Volume 30, at page 682, it is stated that a natural or individual person might, when acting in execution of a public duty, be a public authority. 21. In Miss Kumkum Khanna v. The Principal Jesus and Marry College AIR 1976 Del 35, a Division Bench of the Delhi High Court, after referring to the passage in Section A. De Smith's Judicial Review of Administrative Action (3rd edition) at page 341, observed thus at page 38: On the other hand, the use of the word 'person' in the above statements of law in relation to mand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Courts of Delhi and Madhya Pradesh. 25. Sri Hyder also fairly conceded that in the light of the pronouncement of the Supreme Court in Praga Tools Corporation's case (Supra), even if the Committee of Management of a recognised Intermediate College is held to be a non-statutory body, such Committee will still be amenable to the writ jurisdiction of the High Court, where such committee is entrusted with performance of statutory duties or conferred with statutory powers. 26. As a result of the foregoing discussion, our answer to the question referred by learned Single Judge is as follows: The Committee of Management of an Intermediate College is not a statutory body. Nevertheless, a writ petition filed against it is maintainable if such petition is for enforcement of performance of any legal obligations or duties imposed on such Committee by a statute." 20. Now we come to the Full Bench decision in Madhavan Pillai's case (supra). The Full Bench held that the Writ Petition is not maintainable relying on two judgments of the Apex Court, namely, Vidya Ram v. S.J.N. College AIR 1972 SC 1450 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aging committee was not a statutory body was not hindrance to the High Court issuing the writ prayed for by the appellant has not 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." 21. In Vidya Ram's case (supra) an earlier judgment of the Apex Court reported in Prabhakar Ramkrishna Jodh's case (supra) was cited. It is relevant to notice the ratio laid down by the Apex Court in Prabhakar Ramkrishna Jodh's case (supra), which was the judgment delivered by a four Judge Bench. In the above case, the appellant was working as the Lecturer in S.B.R. College, which was affiliated under the University of Saugar Act, 1946. The appellant's services were terminated, against which order, a Writ Petition was filed by the appellant under Article 226 of the Constitution praying for quashing the termination order. The appellant's case was that termination of the appellant was in violation of the provisions of Clause 8(vi)(a) of the College Code, hence the order was ultra vires and illegal. The High Court rejected the application and held that the services of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and have, therefore, the force and effect of law. It follows, therefore, that the "College Code" creates legal rights in favour of teachers of affiliated colleges and the view taken by the High Court is erroneous." The Apex Court allowed the appeal and set aside the judgment of the High Court and remanded the matter to the High Court for investigating the question whether there was violation of procedure contained in Clause 8(vi)(a) of the College Code. One of the arguments raised before the Apex Court by the respondent was that the governing body of the College was not a statutory body performing public duty and no writ in the nature of mandamus may, therefore, be issued. It was conceded by the respondent that the said objection was not pressed before the High Court. The Apex Court, thus, did not entertain the said objection. It is useful to quote the following observation made by the Apex Court: "..... It was contended on behalf of the respondents in the second place that the Governing Body of the College was not a statutory body performing public duties and no writ in the nature of mandamus may, therefore, be issued to the Governing Body of the College. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was asked to submit his explanation. The appellant in his explanation denied all the charges and requested for particulars on which one of the charges was based. The particulars were not supplied and the Governing. Body terminated his services without holding any enquiry. The appellant moved the High Court under Article 226 of the Constitution for a writ quashing the order of the Governing Body and for his reinstatement. He contended that the Governing Body had made the order in violation of the provisions of Ordinance 20, otherwise called the 'College Code', framed under section 32 of the University of Saugar Act read with section 6(6) of that Act. Clause 8(vi)(a) of the college Code provided that the Governing body of the college shall not terminate the services of a confirmed teacher without holding an enquiry and without giving him an opportunity of defending himself. The High Court held that the conditions of service of the appellant were governed not by the 'College Code' but by the contract made between the Governing Body and the appellant under clause 7 of the College Code-which stated that all teachers of the college shall be appointed under a written con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have no force of law. The following was laid down by the Apex Court in paragraphs 10, 11 and 12 of the judgment: "10. In the case in hand, the position is entirely different. The relevant statutes governing this case are statutes 151, 152 and 153, framed under the provisions of the Lucknow University Act, 1920. Statute 151 provides that teachers of an Associated College including the principal shall be appointed on written contract and that the contract shall inter alia provide the conditions mentioned therein in addition to such other conditions not inconsistent with the Act and the Statutes as an Associated College may include in its own form of agreement. Then the conditions as regards salary, age of retirement, etc., are enumerated. The statute then goes on to specify the grounds on which a teacher's services can be terminated. Statute 152 states that the form of agreement to be adopted by each college shall be approved by the executive Council before it is put in force. Statute 153 provides for a form of agreement which shall serve as a model. It may be noted that statute 151 does not provide for any particular procedure for dismissal or removal of a t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n no event, have event a statutory flavour and for its breach, the appellant's remedy lay elsewhere." 24. After making the above observation in the case of Vidya Ram's case (supra) earlier judgment of Prabhakar Ramkrishna Jodh's case (supra) was distinguished on the premise that the service conditions of Vidya Ram's case (supra) are not governed by the statutory provision and hence, the ratio of Prabhakar Ramkrishna Jodh's case (supra) is not applicable. The ratio in Prabhakar Ramkrishna Jodh's case (supra) was, thus, approved and followed. However, in paragraph 13 of the judgment, the Apex Court held that in order that the third exception to the general rule that no writ will lie to quash an order terminating a contract of service might apply, and for that it is necessary that the order must be the order of a statutory body acting in breach of a mandatory obligation imposed by a Statute. The Apex Court held that the College or Managing Committee in question is not a statutory body and so, the argument of counsel for the appellant that the case in hand will fall under the third exception cannot be accepted. In the above context, the contention of Mr. Setalv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmission of the Board's examination, and Board means the Board of High School and Intermediate Education. The basic section of school cannot therefore, be part of a recognised institution. We are unable to agree with the view taken by the Division Bench of the High Court that the basic section is an integral part of the institution and therefore, must be governed by the provisions of the Intermediate Education Act, 1921. A school by extending its operation to fields beyond that covered by the Act cannot extend the ambit of the Act to include in its sweep these new fields of education which are outside its scope. The case of the appellants on this point appears from this counter-affidavit filed by them in answer to the writ petition. It is said that "the college is running the Basic Section independently and is neither registered by the Government or affiliated by any local body and neither any grant in aid is being taken by the department to run this section accordingly. The college has its own rules and regulations to conduct the Basic Section". It is not correct to think that since the college has to have a committee of management as required by Section 16-A, a managing commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons to be appointed as Principal in the above college under the Educational Agency of St. Mary's Jacobite syrian Church, Manarcad. Qualification, age and experience as prescribed by University/Government. Apply within one month from the date of this notification to the Manager with full bio-data, attested copies of certificates, passport size photograph and contact telephone number." 30. The advertisement clearly indicates that applications were invited as the appointment on the post of Principal was by direct recruitment. Exhibit P2 is the report of the Staff Selection Committee, which has been brought on record. Exhibit P2 clearly indicates that the Selection Committee was constituted in accordance with the Statute, i.e., Chapter XLV of the M.G. University Statutes, 1997. The Selection Committee consisted of two Government representatives and one University representative. The said selection was forwarded to the University for approval and the University, vide order dated 31.3.2001, has approved the appointment of the petitioner in the retirement vacancy of one Prof. K.M. Varghese. The appointment letter was issued to the petitioner on 3.7.2000. The advertisement, proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deputation can be accepted. 33. Now, we come to the order dated 12.10.2004, by which the petitioner's appointment as Principal has been terminated. It will be useful to extract the entire order dated 12.10.2004, which is to the following effect: "You were appointed as Principal of St. Mary's College, Manarcaud, Malam P.O., Kottayam, Pin-686 031 on 3.7.2000 on deputation for a period of five years, retaining your lien in the post of Selection Grade Lecturer in English in the Mar Athanasius College, Kothamangalam for a period of 5 years from 3.7.2000. The Governing Board of St. Mary's College, Manarcaud, Malam P.O., Kottayam, Pin-686 031 which met on 8.10.04 has unanimously resolved to terminate your appointment on deputation as the Principal of St. Mary's College, Manarcaud, Malam P.O., Kottayam, Pin - 686 031 with immediate effect and authorized the Manager, St. Mary's College, Manarcaud, Malam P.O., Kottayam, Pin-686 031 to issue orders in that regard. Accordingly, you are hereby informed that your appointment on deputation as Principal of St. Mary's College, Manarcaud, Malam P.O., Kottayuam, Pin-686 031 stands terminated with effect f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty order against the petitioner, rather passed an order abruptly terminating the appointment as if he is on deputation. It is relevant to note that the petitioner was also asked to give option to go back to the 5th respondent College, in that event the management stated that the management shall not impose any punishment. The petitioner in his reply clearly refused to give any option of going back to the 5th respondent College. It is further relevant to note the provisions of Section 63, which deals with disciplinary powers of Educational Agency over teachers of private colleges. Section 63(6) refers to penalties, which can be imposed. Section 63(6) of the Act, 1985 is quoted as follows: "63. Disciplinary powers of Educational Agency over teachers of private Colleges.- xx xx xx (6) Any teacher aggrieved by an order imposing on him any of the following penalties, namely:-- (a) withholding of increment; (b) recovery from pay of any pecunia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary 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 12.10.2004 is not covered with any of the penalties as enumerated in Section 63(6), hence, the order dated 12.10.2004 is beyond the purview of penalties as contemplated by Section 63(6) and Statute 73 of chapter 45 of Statute.. 38. As observed above, 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. 39. We, thus, are of the clear view that the letter dated 12.10.2004 is without jurisdiction. The petitioner, who was substantively appointed by direct recruitment after following due procedure in the Act and Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice 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 learned counsel for the management in Shri Vidya Ram Misra v. Managing Committee, Shri Jai Narain College (1972)1 SCC 623." 41. Learned counsel for the management has further submitted that minority institution has right to select its Principal, hence the right of minority institution to terminate the services of its teachers has also to be conceded. There is no dispute that in the field of selection of a teacher or Principal, minority institution has certain discretion. But, selection of teachers and Principal of minority institution, which is receiving aid from the Government and affiliated to the University, has to be regulated according to the provisions and Statute as noted above. Minority institution cannot claim any unfettered right to make any selection. In so far as termination of service of a teacher of a minority institution affiliated to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
