Orissa High Court
Dr. Uttam Kumar Samanta vs Kiit University And Others on 29 September, 2014
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT, CUTTACK.
W.P.(C) No. 17171 of 2011
An application under Articles 226 and 227 of the Constitution of
India.
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Dr. Uttam Kumar Samanta ... Petitioner
Versus
KIIT University and Others ... Opposite Parties
For Petitioner : Mr. Gautam Mukharjee, Advocate.
For Opp. Party : Mr. Bhagaban Mohanty, Advocate.
(for opposite party nos.1 to 4 and 8).
Mr. J.K. Mishra, senior Advocate
(for opposite party no.5).
Mr. S. Das, Advocate.
(for opposite party no.6).
Mr. Saktidhar Das, senior Advocate
(for opposite party no.7).
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PRESENT :
THE HONOURABLE MR. JUSTICE BISWANATH RATH
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Date of hearing : 14.08.2014 Date of Judgment : 29.09.2014
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Biswanath Rath, J.By filing this writ petition, the petitioner, who is an ex- employee of KIIT University, Bhubnaneswar challenged his termination from services of the KIIT University by order dated 2 28.06.2011 appearing at Annexure-4 of the writ petition and the consequential order dated 22.06.2011 find place at Annexure-6 directing for complying certain formalities so also for vacating the quarter allotted to him pursuant to his termination from service. The petitioner further seeks direction in the nature of mandamus directing the opposite party no.4 for supplying the documents mentioned in Annexure-2 in terms of provision as contained in the Right to Information Act, 2005.
2. The petitioner assails the impugned order on two grounds, firstly on the ground that the order of termination has been passed without observing the principle of natural justice and secondly, the findings of the case based on which service of the petitioner is taken away attached stigma in the career of the petitioner and passing such order without holding any enquiry involving the petitioner and in absence of affording any opportunity to the petitioner is not only bad but non est in the eyes of law.
3. The case of the petitioner involved in the writ petition is that he is a highly qualified and reputed Professor in the stream of Biotechnology and lastly was gainfully employed in the United State of America (U.S.A.). For his name and fame worldwide, the petitioner was approached by KIIT University, the opposite party no.1 to join the latter in its KIIT School of Bio-Technology. Since the petitioner belongs to India, he felt more attached to teach in his own country and consequently accepted the offer of the opposite party no.1 at the cost of liquidation of his assignment in the United States. The selection was made holding online interview and the appointment order 3 appointing the petitioner as an Assistant Professor in the School of Bio-Technology, KIIT University, Bhubaneswar was issued vide communication dated 12.05.2010 appearing at Annexure-1, series, which was also issued in his United States address. As per the terms of appointment letter available at Annexure-1, series, he was to continue as a probationer vide condition no.2. He was taken as probationer for a period of one year and was to be regularized based on his performance and successful completion of his probationary period. On acceptance of the offer of appointment, the petitioner joined the establishment of opposite party no1 and while continuing as a probationer, the petitioner soon discovered that the management was turning a cold shoulder and was not co-operating several of his developmental activities. He also observed the opposite party no.2 was remaining always against the petitioner and was creating unnecessary hardships in the matter of teaching by the petitioner. In the process, the petitioner also discovered that the answer papers of the students of the university were not evaluated ethically by the opposite party nos.1 and 2. In due process, the petitioner also found that the entire University Management believed in the same practice and were busy participating such illegal evaluation. Finding such discontentment among the students and being perturbed with such behaviour of the university by submitting a detailed representation dated 23.05.2011 as appearing at Annexure-2 of the writ petition sought for immediate action in the matter.
4. Further, case of the petitioner is that in order to satisfy the Vice-chancellor in the above regard, he was in need of ten numbers of documents from the records of the examinations for which 4 he had made separate application requisitioning the documents from the Information Department of the university applying provisions of Right to Information Act, 2005. Even though the above letter of the petitioner was attended to but, he was not provided with any such document by the time of filing of the writ petition. When the matter stood as above, the petitioner was shocked and surprised to receive the termination letter dated 20.06.2011 from the Registrar of opposite party no.1, University, which simply indicated that services of the petitioner are no longer required by the University and the competent authority has decided to terminate his service. The petitioner alleged that for taking up the major issues as narrated hereinabove, the management of the university remains antagonized vindictive or became biased which resulted in the impugned order, which is not only an unreason one but also passed in absence of any disciplinary proceeding and not in compliance of natural justice being afforded to the petitioner.
It is alleged that the competent authority has taken a decision behind the back of the petitioner. The letter of termination dated 20.06.2011 as appearing at Annexure-4 was also passed when the petitioner was a probationer. After service of the order of termination, the petitioner submitted a representation on 21.06.2011 to the opposite party no.3 appearing at Annexure-5 for reconsidering his case. The petitioner further alleged that by the further action of the opposite parties, the petitioner has not only became jobless but for reason of stigma, bright career of the petitioner is jeopardized and he also became homeless. It is further contended by leaned counsel for the petitioner that the orders passed by the university as appearing at 5 Annexures-4 and 6, are bad in law on being passed without holding a disciplinary proceeding and without affording the petitioner principles of natural justice.
5. Per contra, the opposite party nos.1 to 4 contended that the writ application against KIIT University having been created under the Society Registration Act, being a Deemed University having autonomous status and further being a self-finance Private Deemed University and KIIT School of Bio-Technology being an institution under the KIIT University is not amenable to the writ jurisdiction under Article 226 of the Constitution of India. It is next contended by the opposite party nos.1 to 4 that the petitioner was in a particular service contract. As per clause-2 of the appointment letter, a condition was attached that the petitioner will be regularized based on his performance and on successful completion of his probation period and further vide Clasue-10, he specifically agreed for being terminated while continuing in probation without any notice. Finding the petitioner's service in the university not beneficial, a committee was constituted to enquire into the matter. Enquiry Committee upon conclusion of an in-house enquiry as appearing at Annexure-C/1, recommended the authority not to extend the petitioner's probation period. Based on such recommendation the service of the petitioner was terminated vide Annexure-4 and letter vide Annexure-6 is a consequential order depending on the termination order.
It is next contended by Mr. B. Mohanty, learned counsel for the opposite party nos.1 to 4 and 8 by referring to a decision reported in (2002) 5 SCC-111 that the test for an institution for becoming a State under Article 12 of the Constitution of India are (I) 6 Formation of the body, (II) Object and Functions (III) Management and Control (IV) Financial aid etc. These tests being not satisfied in the present case opposite party institution cannot be held either a State or other authority under Article 12 of the Constitution of India and thus writ petition against it is not maintainable.
In referring to the decision in the case of Zee Film Industries Ltd. v. Union of India and deciding the question of Power Group Board of Cricket Control for India being a private body and registered under Society Registration Act is not State within the meaning of Article 12 of Constitution of India and where majority felt bound by dicta laid down in the case of Pradip Kumar Biswas v. Indian Institute of Chemical Biology and Others; (2002) 5 SCC-111 held that the BCCI being a Private body and registered under the Society Registration Act not a State within the meaning of Article 12 of the Constitution of India. The opposite party nos.1 to 4 and 8 by referring to the above decisions and another decision of this Court dated 14.07.2008 in W.P.(C) No.5614 of 2008 in the case of Dibarkar Mohapatra v. Xavier Institute of Management holding that the Xavier institute is not discharging any public function and, therefore, any action of the Xavier Institute based on a contract of employment is not amenable to the writ jurisdiction. It is on the above premises, the opposite party nos.1 to 4 and 8 argued that the opposite party no.1 institution being wholly a private institution and being registered under the Society Registration Act stands covered by the decisions referred (supra) and as such is not amenable to the writ jurisdiction of this Hon'ble Court and, therefore, claimed for dismissal of the writ petition.
76. In response to the counter filed by the opposite party nos.1 to 4 and 8, the petitioner filed a rejoinder, a further affidavit and a supplementary affidavit wherein while refuting the stand of the opposite party nos.1 to 4 and 8 the petitioner has contended that the opposite party no.1 university not only made sufficient provision for financial aid to the opposite party institution from State, Center as well as bodies under control of State as well as Center even receiving foreign aid by making provision in the memorandum of Article of Association but it also receives financial supports from various Government both State and Center sources as categorically pointed out in the supplementary affidavit. He has also filed documents vide Annexure-11, series in support of the same attached to the supplementary affidavit. In referring to documents, Mr. Goutam Mukharjee, learned counsel for the petitioner draws the Court's attention through Annexure-11, series to the effect that the opposite party no.1 is not only having a good number of faculties from various Central Government and the central affiliated institutions involved in its varieties of projects for over last so many years but also receives sponsoring for a large number of projects in the KIIT University, which are all either the agencies directly determined under the Central Government or the Central Government undertakings. Coming to the question of investment of the KIIT University, Mr. Mukharjee also referring to the documents vide Annexure-11, series in supplementary affidavit and the documents vide Annexure-15 series attached in additional rejoinder affidavit justify his claim on substantial funding of the university comes through Government, be it Central Government or State Government. Besides the above, Mr. Mukharjee, 8 learned counsel for the petitioner also contended that the opposite party no.1 university has very very limited fund capital of its own and majority of the fund resources are coming through the admission fees and capitation fees of the students from different streams and through sponsoring agencies, which are again public money. He next contends that KIIT being an university created under Section 3 of the U.G.C. Act is a creature of the statute and is not only a State but also comes under the fold of the 'other authorities' and is thus amenable to the writ jurisdiction of this Hon'ble Court.
7. It is under the above premises, Mr. Mukharjee appearing for the petitioner claims that the opposite party no.1, KIIT university is not only discharging the public duty enshrined under the Constitution of India but also dealing with public money and further referring to a notification issued by the Ministry of Human Resources Development Department, Higher Education Department, Government of India dated 16.02.2004 justified that the KIIT University is a State under Article 12 of the Constitution of India further claimed that KIIT is not only a state being in the garb of other authority within the meaning of Article 12 of the Constitution of India its employees also discharge public duty and have every right to redressal of their right under Article 226 of Constitution of India.
8. On its appearance, the opposite party no.5, i.e., University Grants Commission through learned senior counsel Mr. J.K. Mishra contended that it being a body constituted under the provisions of University Grants Commission Act, 1956 enshrined the duties to take such steps as it thinks fit for the promotion and the co-
9ordination of the University Education and for the determination and maintenance of the standards of teaching, examination and research in universities. It is also authorized to perform in the matter of advancing the touch of education in India, it may be institutional or conducive or discharge of its power under Section 26 of the Act. It has been given a power to make regulations consistent to the act with permission to define the qualification that should ordinarily be required of any person to be appointed to the teaching staff of the university. Having regard to the transit of education in which the applicant is accepted to give instruction and under Section 2(a) of the University Grants Commission, private university means a university established or incorporated by or under Central Act, a Provincial Act or a State Act includes any institution as may in consultation with the University concerned be recognized by the commission in accordance with the regulation made in this behalf under the said Act and as per the provisions contained in Section 3 of the said Act. The Central Government may on advice of the Commission declared by notification in the official gazette that new institution for higher education other than university for the purpose of this Act and such a declaration being made all the provisions of the said act shall apply to said institutions. Section 12 of the said Act empowers it to take in consultation with the universities or other bodies concerned all such steps, as it may think fit for promotion and co-ordination of university education and for the determination and maintenance of the standards of teaching, examination, research in universities and its pivotal role in the matter of advancing the cause of higher education for India or as may be incidental or conducive discharge of the above context.
109. Similarly, by filing the counter affidavit opposite party no.8, the Law Officer of opposite party no.1 by swearing affidavit while submitting that the opposite party no.8 is in no way connected with the administration of the school of Biotechnology under the KIIT University submitted that Vice-chancellor of the university is the authority, so far as the administration of the school of Biotechnology is concerned and the petitioner has impleaded this opposite party with some mala fide intention. Apart from the above submissions he also submitted, in the line of submissions made by the opposite party nos.1 to 4 and 8 and attempted to justify the action vide the impugned orders.
10. In furtherance to the above submission, learned counsel for the opposite party nos.1 to 4 and 8 and in response to the above submission of the respective parties has also reiterated its stand justifying its argument that the KIIT being a self-financing university brought under Section 12(b) of the University Grants Commission Act, 1956. KIIT university does not receive any financial support from the government or through University Grants Commission. In response to the quarry by this Court, learned counsel for the opposite party nos.1 to 4 and 8 further submitted that the claim of the petitioner regarding the sources of funding as derived from Annexure-11, series at page-15 of the writ petition is a myth. The projects, those have been referred to therein, are funded by Governmental or by non- Governmental agency in the specific purposes of research through investigators and this university is merely an agency for completion of research work of the specific project and cannot be treated under any 11 circumstances as an aid to the university and the particular university is being utilized in the above respect as a lab only.
11. Drawing my attention to the additional rejoinder affidavit filed by the petitioner to the additional counter affidavit of opposite party nos.1 to 4 and 8, learned counsel for the petitioner contended that from the heading of Principles of Board of Management, there is substantial control and representation of the Central Government establishing active role of the State in the functioning of the opposite party university and thus the opposite party no.1 university can be termed as a "state" or "other authority" under Article 12 of the Constitution of India.
Learned counsel for the petitioner next contended that the university enjoys fund sponsored by State agencies (including the University Grants Commission appearing at Annexure-11 series (Page-10 to 22 of the supplementary affidavit at the instance of petitioner). There is no question not treating the said opposite party university as a "State" under Article 12 of the Constitution of India. It further contended that as a matter of fact and as a continued practice the institute is receiving State and Central Government aids even in the matter of projects enjoy or deduct 10% to 20% or more of the said fund as over head and they utilize this fund as contingent expenditure and also being spent for the development of infrastructure of this institution. In drawing my attention to Annexure-16, learned counsel for the petitioner claimed that the opposite party university discharges the public duties and it comes under the definition of State as well as "other authorities" under Article 12 of the Constitution of India.
1212. From the above contentions of the respective parties, the following points emerges for consideration of the Court :-
i. Whether the opposite party no.1 university is a "State" and or "Other Authority" under Article 12 of the Constitution of India and is thus amenable to this Court?
ii. Whether the order of termination vide
Annexure-4 required an enquiry with
opportunity of showing cause to the victim before the order of termination was passed and as such Annexure-4 suffers on account of violation of principle of natural justice? iii. Whether the order of termination vide Annexure-1 attached any stigma, affecting all through the life of the petitioner and for affecting Fundamental Right of a person a writ can be enforceable under Article 226 of the Constitution of India?
13. Now coming to answer the pivotal question vide serial no.i apart from considering the materials available on record and pleading of the parties in the said regard, I am also required to consider the decisions of Hon'ble Apex Court as well as several other Courts in the said matter which runs as follows:-
I. The Certificate Registration of Kalinga Institute of Industrial Technology in short (hereinafter called as 'KIIT') is registered 13 under the Societies Registration Act having Registration Act No.XXI-1860.
II. The opposite party no.1 institution for running its establishment has framed its Memorandum of Article of Association and even though it has a set up Conduct and Discipline Rules vide Chapter-II of KIIT University Human Recourses Manual but it no where prescribes any provision as to how the Service Conditions are to be guided. The Human Recourses Manual is totally silent on this issue. As per the Memorandum and Articles of Association of KIIT, the primary aim and objectives of the KIIT runs as follows:-
Under the memorandum of Articles of association Clause-3 deals with its Aims and Objects, which reads as under:-
"3. THE AIMS AND OBJECTS The aim and objectives of the society are public charitable, literary, educational, research and general social good, with particular emphasis as enumerated below:-
i) To sponsor, promote and establish educational institutions to impart studies and courses of technical and general nature.14
ii) To establish technical institute for conducting courses for various industrial trades such as Fitter, Wireman, Welder, Electrician, Mechanic, Computer Data Processing, Electronics, Television, Radio and other household gadgets maintenance and repairing. Draughtsman, Surveyer, Typewriting, Stenography, Medical Technician and Nursing pramedical course, Phtography, Printing and allied courses, etc.
iii) To establish institutes for offering professional under-graduate and post-
graduate courses in Business Management, Marketing, Public Relations and Publicity, Journalism and Mass Communication, Travel and Tourism Management, Hotel Management, Interior Decoration, Accountancy, Secretarial Services, Book-
keeping, Store keeping, Costing and Auditing, Archeology, Library Science, Production Control etc.
iv) To open undergraduate and post-graduate courses in Plant Keeping, Environment Management, Pollution Prevention Control and Management, Zoo and Aquarium Management, Diary and Poultry Management, Pharmaceutical Science etc. 15
v) To establish Art Schools, Dance, Drama and Music Schools, and to offer preparatory.Classes leading to J.E.E., Engineering, Administrative Services, School and College education.
vi) To establish schools for offering vocational studies-cum-training in various crafts like Carpentry, Smithy, Sculpture, Terracota, Patta, Painting, Carpet-making, Tailoring, Weaving, Knitting and Embroidery, Pottery, Brassware, Ornamental Designing, Masonary and construction work, Automobile Repairing, Domestic Maintenance Services, Pest Control, Refrigeration and Air-Conditioning.
vii) To encourage and expand the scientific and
technological ideas in the existing
educational institutions of the State of Orissa, for elevating the quality of education.
viii) To make arrangements for absorbing technical manpower in various industrial units and service organizations in the State of Orissa.
ix) To print, publish and circulate books, pamphlets, periodicals etc for developing scientific and technological outlook among 16 the general public; with a special thrust on technically qualified personnels.
x) To open and extend orientation camps, refresher courses and training Programme for technically qualified students as well as in-house employed personnels.
xi) To open engineering institutes with certificate, diploma and degree courses for providing a sound base for creating technically qualified pesonnels for meeting the current and future needs of the State.
xii) To undertake, field studies and research programmes in the field of irrigation, health, agriculture, power, rural land urban development, ecology, forestry and pollution control, labour welfare and such other fields of industry along with sociological activities.
xiii) To undertake consultancy in the field of social welfare, industrial production, survey and date processing.
xiv) To undertake research and analysis, production of monographs and audio-visual materials for the benefits of the general public with particular emphasis on technical and scientific work in the State.
17xv) To compile, publish, distribute and process reports and sell data to establishments of data and information banks through information bulletins.
xvi) To establish libraries, reading rooms, audiovisual-aid centers, reference and index libraries, information software centers for the attainment of the objectives of the Society.
xvii) To establish centers for various educational programmes with special emphasis on the technical education for the rural youths and artisans; for creating opportunities for employment including self-employment.
xviii) To establish employment bureau to provide services in coordination with the potential employer and qualified personnel; both technical and non-technical.
xix) To accept and secure subscriptions, donations, gifts, grants, loans, contributions and endowments in the interest of the "Society".
18xx) To assist, subscribe, co-operate and collaborate with or affiliate with or/and enter into agreements with government or non-
government organizations having similar or complementary objects and programmes in the interest of the Society.
xxi) To apply for an accept/receive grants and donations in kinds/cash/services from Government and non-Government organizations including foreign sources for attainment of any or all objectives of the Society.
xxii) To buy, hire, own mortgage, lease, rent acquire and dispose off properties and equipments for the society.
xxiii) To promote and aid cottage, rural, small scale, khadi and village industries through improved and innovative technical know-
how, and to establish centers of production in this field for creating practical and demonstrative training to maximize production.
xxiv) To sponsor or help to run academic institutions, hostels for boys and girls;
19particularly for the weaker section of the society including SC/ST and women for education and training.
xxv) To raise funds for the Society through subscriptions, donations, grants, loans and subsidies from local bodies, State and Central and other banks and financial institutions, and international agencies and from voluntary organizations who are prepared to assist the Society for the attainment of its objectives.
xxvi) To employ, seek and utilize the services (either free or on payment) of the experts for the execution of the objectives of the Society.
xxvii) To Create and manage assets, properties, endowments, funds etc. in furtherance of the objectives of the Society.
xxviii) To undertake all activities and to do all such things as are incidental, instrumental and conducive for the attainment of the aims and objects of the Society enumerated above.
20xxix) To undertake such other activities not specifically mentioned here above in the interest of achievements of the aims and objects of the Society as decided by the Executive Committee from time to time.
xxx) To establish laboratories, workshops, educational aids and technical facilities for practical training and demonstration; for the students of various courses offered by the Society.
xxxi) To offer assistance for industrial undertakings in selecting proper personnel, in maintenance and repairs of their equipments assist in production managements and in erection.
xxxii) To open and run higher courses like Master of Technology, Ph.D fellowship etc in different branches.
xxxiii) To obtain excellence in academics, accreditation of different programmes, Deemed University status ISO-9002 and higher certification etc from appropriate 21 authorities as shall be required from time to time.
xxxiv) To open and run medical college, and Hospital, Dental College, P.G. courses in Medical Science, Nursing schools and Colleges, research programmes in Medical Science etc for the greater interest of the society.
xxxv) To open and run different courses/branches in different areas.
xxxvi) To collaborate its various programmes with different institution/universities of excellence.
xxxvii) To disseminate technology in rural areas.
xxxviii) To take over the assets and liabilities of any registered society/trust having similar objectives by way of merger/amalgamation or otherwise.
xxxix) To form/register separate charitable trust/society/sister concern with existing members and outside members, if required, for smooth functioning of the Society."
22Under the Memorandum of the Article of Association of KIIT provision-16 funds reads as follows:-
"16. FUNDS:
(i) The funds of the Society be acquired by means of:-
(a) Admission fees in cash.
(b) Annual Subscription in cash.
(c) Donation from public and private institutions and individuals.
(d) Borrowing from financial agencies including Bank, Local Bodies, State and Central Government and their Agencies and International Agencies.
(e) Income from the proceedings and business of the Society.
(f) Subsidies and Grants from Local Bodies, States and Central Government, and other Agencies."
14. (i) The petitioner applied the position of funding from department of Biotechnology to KIIT university. KIIMS, Bhubaneswar and the informations it received under R.T.I. Act discloses the amount of grants receipt by the KIIT from the department of Biotechnology which runs as follows:-23
"DEPARTMENT OF BIO TECHNOLOGY List of Sanctioned Projects S.No Project title Project Sanctione Amount Investigator(Institute) d Date (Rs.) Kalinga Institute of Industrial Technology 1 Environmental Risk and Dr. Vishakha Raina 14/11/2008 5186000.0 Bioremediation of [Kalinga Institute of 0 Hexachlorcyclohexane Isomers [BT/IC- Industrial Technology, 2/SWISS/LAL-RAINA/P3/2008-BN] Bhubaneswar] 2 Evaluate the mechanism or Dr. Chanakaya Kundu 23/04/2010 3452000.0 reserveratrol mediated apoptosis in [Kalinga Institute of 0 cigratte smoke induced brest cancer Industrial Technology, [BT/PR12701/MED/30/205/2009] Bhubanswar] 3 Nanobead based novel stragegies for Dr. Avinash Sonawane 11/05/2010 3088000.0 the efficient delivery of drug molecules [Kalinga Institute of 0 for the treatment of tuberculosis Industrial Technology, [BTPR-13488/GBD/27/270/2010] Bhubaneswar] 4 Identification of new virulence factors Dr. Mrutyunjay Suar 23/09/2010 4444000.0 of Salmonelia enterica serovar [Kalinga Institute of 0 Enteritidis by genome wide mutant Industrial Technology, screening approach and development of Bhubaneswar] potential Salmonella vaccine carriers [BT/PR14489/Med/29/207/2010] 5 Characterizing and selectively targeting Dr. Birendranath Banerjee 07/07/2011 3541800.0 the canonical wntB-catenin pathway in [Kalinga Institute of 0 therapeutic resistant Tumour Inducing Industrial Technology, stem cells (TICS)--implications for a Bhubaneswar] combinatorial treatment of solid tumors (BT/PR1459/MED/31/108/2010] 6 Hyperglycemia-induced oxidative Dr. Arttatrana Pal [Kalinga 19/07/2011 2763000.0 stress in diabetic complications in Institute of Industrial 0 retina Technology, [BT/PR14241/MED/30/423/2010] Bhubaneswar] From Date:-01/04/2005 To Date:-14/03/2012
(ii) The petitioner has also produced a document as appearing at Annexure-5 page-85 of the brief to further indicate that KIIT university, Bhubaneswar received the total sum of Rs.51.86 Lakhs for different projects under the sanction of President of India in 24 exercise of power under Rule 18 f the Delegation of Financial Powers Rules, 1978. The fund was provided for implementation of project titled "Environment Risk and Bioremediation of Hexachlorocyclohexane Isomers"
(iii) The petitioner has also filed another document as appearing at page-89 of the brief a sanction order dated 20.05.2010 establishing sanction of the President of India for a sum of Rs.34.52 Lakhs for implementation of project titled "Evaluate the mechanism of reserveratrol mediated apoptosis in cigarette smoke induced breast cancer"
(iv) Further document filed by the petitioner as appearing at page-93 of the brief a sanction order of the President of India dated 12.05.2010 disclosing therein sanctioning of Rs.30.88 lakhs for implementation of the entitled "nanobead based novel strategies for the efficient delivery of drug molecules for the treatment of tuberculosis".
(v) Similarly, another document filed by the petitioner as appearing at page-96 of the brief issuing a sanction of President of India dated 30.09.2010 disclosing therein sanctioning of Rs.44.44 lakhs for implementation of the project entitled "Identification of new virulence factors of Salmonella entercia serovar Entertidis by genome wide mutant screening approach and development of potential Salmonella vaccine carriers".
(vi) Another document filed by the petitioner as appearing at page-100 of the brief issuing a sanction of President of India dated 12.7.2011 disclosing therein sanctioning of Rs.35.418 lakhs for implementation of the project "Characterizing and selectively 25 targeting the canonical wnt B-catenin pathway in therapeutic resistant Tumour, Inducing stem cells (TICs)--implications for a combinatorial treatment of solid tumors"
(vii) Another document filed by the petitioner as appearing at page-104 of the brief issuing a sanction of President of India dated 22.07.2011 disclosing therein sanctioning of Rs.27.63 lakhs for implementation of the project titled "Hyperglycemia-induced oxidative stress in diabetic complications in retina".
(viii) Besides above, as appearing from documents filed by the petitioner along with supplementary affidavit dated 07.03.2012 as appearing at Annexure-11 series to the said affidavit. It is amply clear that the KIIT university, Bhubaneswar used to receive funds from various Central Government of organizations as well as undertakings of Central Government following is the agencies from which the opposite party establishment receives funding and the funds so provided runs as follows:-
(ix) Department of Science & Technology (DST), Government of India; Indian Council of Medical Research (ICMR), Government of India; Department of Biotechnology (DBT), Government of India; Council of Scientific and Industrial Research (CSIR), Government of India; Indian Council of Agricultural Research (ICAR), Government of India; All India Council of Technical Education (AICTE), Government of India; Department of Atomic Energy (DAE), Government of India; UGC, Government of India and Ministry of Steel, Government of India etc. in the following manner:26
Name of Sponsoring Agency Amount
(lakh)INR
i) Department of Biotechnology (DBT)-SDC under 29.00
ISCB
ii) Department of Science & Technology (DST), 14.85
Government of India, New Delhi
iii) Indian Council of Medical Research (ICMR), 30.00
Government of India, New Delhi
iv) Department of Biotechnology (DBT) 18.89
Government of India, New Delhi
v) Indian Council of Medical Research (ICMR), 30.00
Government of India, New Delhi
vi) Department of Biotechnology (DBT), 30.88
Government of India
vii) Department of Science & Technology (DST), 17.88
Government of India, New Delhi
viii) Council of Scientific & Industrial Research 20.00
(CSIR), Government of India, New Delhi
ix) Department of Biotechnology (DBT) 44.00
Government of India, New Delhi
x) Department of Science & Technology (DST) 16.56
Government of India, New Delhi
xi) Indian Council of Agricultural Research (ICAR) 32.00
Government of India, New Delhi
xii) Indian Council of Medical Research (ICMR), 30.00
Government of India, New Delhi
xiii) Department of Biotechnology (DBT) 30.00
Government of India, New Delhi
xiv) Department of Biotechnology (DBT) 45.00
Government of India, New Delhi
Total 389.06
Apart from that some foreign funding is there =Rs.3 crore 89
lakh 6 thousand
xv) USB Optimum Foundation ETH, Zurich, 400.00
Switzerland
=Rs.7 crore 89
lakhs 6 thousand
27
(x) Annexure-11 Series page-17 to 22 of the Supplementary
affidavit filed by the petitioner also establish the active and pervasive control of the Central Government Organizations over the KIIT University not only functionally and administratively but also financially.
(xi) Annexure-11 Series page-10 to 14 of the Supplementary affidavit filed by the petitioner also establish that there is funding from Indian Council of Medical Research (ICMR) (Government of India Organisation) to KIIT University and KIMS, Bhubaneswar under KIIT University.
(xii) Annexure-15 Series page-8 to 32 of the additional rejoinder affidavit filed by the petitioner in reply to the additional counter affidavit filed by the opposite parties/ KIIT University clearly establish the source of funding of the Department of Biotechnology, Government of India, New Delhi to KIIT University from 01.04.2005 to 14.03.2012 which is mentioned hereunder for ready reference' Rs.51,86,000.00 Rs.34,52,000.00 Rs.30,88,000.00 Rs.44,44,000.00 Rs.35,41,800.00 Rs.27,63,000.00 Total Rs.2,24,74,800.00(Rs.2 crore 24 lakhs 74 thousand 8 hundred) From out of the aforesaid amount the KIIT University has deducted some amounts towards their contingencies and overheads.28
(xiii) Besides, the above from another document vide pages-14 and 16 in the very same affidavit also amply makes it clear that a brief projects in the school of Biotechnology of the KIIT University, has got total sponsorships to the tune of several lakhs by way of grant-in-
aid from the establishment of Government. Similarly, it also gets aid from Government undertakings like DBT-SDC under ICCB, then DST Government of India, CSIR Government of India, ICAR Government of India, ICMR Government of India and many others.
(xiv) Besides the various grants those it receives from various authorities as enumerated herein above the university collects bulk of its money by way of fees from the students which is nothing but public money. The University deals with public money, operates in public domain and has public interest, i.e., Education as the core of its existence. Assuming for the sake of argument though not admitting that even if it is held the University would not fall under the Article- 12 of the Constitution of India there would be no escape from the University coming under the sweep of other authorities as prevailed under the Article 226 of the Constitution and would thereby amenable to the writ jurisdiction of the Constitution.
15. The KIIT university in response to the receipt of all sanctions has only submitted that these sanctions relating to the different projects undertaken in KIIT and it has noting to do with the sanction of the amount. On bare perusal of sanction orders it indicates from out of the sanctioned amount, the university in every sanction gets huge amount under the guise of over heads and the same is utilized on developmental of the university.
29Aims and objects of the University unequivocally establish the opposite party no.1 is discharging a greater public service in the State. Similarly, provisions for funds as provided in the Memorandum of Article of Association of the University also clearly establishes that it has provision for State and Central Assistance even it has also the provisions for subsidy and grants from Government and Governmental Agencies.
16. Similarly, coming to the question of constitution of Governing Body I find that the following:-
CONSTITUTION OF GOVERNING BODY As per Annexure-P/1 at page-11 of the Additional Counter Affidavit filed by the KIIT University on 24.06.2014 wherein it has been mentioned that "Member of Board of Management". In the said list of members of Board of Management at Sl.No.4 it has been mentioned that "One of Eminent Academician to be nominated by the Central Government in consultation with University Grants Commission". In addition to the same in the said Annexure-P/1 at page-14 of the said Additional Counter Affidavit it has been mentioned that "Under Finance Committee" wherein at Sl.No.4, "A representative of the Central Government" has been mentioned.
17. As appears KIIT University is a university declared under Section 3 of University Grants Commission Act, 1956 (for short the "U.G.C. Act"). Section 3 of which reads as follows:-
The Central Government may, on the advice of the Commission, declare, by notification in the Official Gazette, that any institution for higher 30 education, other than a University, shall be deemed to be a University for the purposes of this Act, and on such a declaration being made, all the provisions of this Act shall apply to such institution as if it were a University within the meaning of clause (f) of section 2.
18. Therefore, all the above documents of the KIIT University not only clearly establish that there is pervasive and dominant role of the Central Government over the KIIT University but its formation of governing body is also an indicator of the same. Besides by virtue of its creation under the Section 3 of University Grants Commission Act, 1956 it becomes a creature of a Central Statute. Further from the provisions under AICTE Act, 1987 it is also amply clear that the council created under this Act has direct control over the officers of the university.
Looking to the provision contained under Section 3 and further on receipt of university status, the provision contained at clause(f) of Section 2 become applicable to such university which reads as follows:-
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2. (f) "University" means a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recognized by the Commission in accordance with the regulations made in this behalf under this Act."
31Further so far as the KIIT is concerned, the technical institution under the university as defines in Sub-section (1) of Section 2 of the All India Council for Technical Education Act, 1987, which is defined as herein below:-
The university means a university defines under Clause(f) of Section 2 of the University Grants Commission Act, 1956 and includes an institution to be a university under Section 3 of that Act. Section 12 of the act which deals the functions of the council at Chapter-III (b),(h),(i), which reads as follows:-
(b) allocate and disburse, out of the Fund of the Commission, grants to Universities established or incorporated by or under a Central Act for the maintenance and development of such Universities or for any other general or specified purpose;
(h) Collect information on all such matters relating to university education in India and other countries as it thinks fit and make the same available to any University;
(i) require a University to furnish it with such information as may be needed relating to the financial position of the University or the studies in the various branches of learning undertaken in the University, together with all the rules and regulations relating to the standards of teaching 32 and examination in that University respecting each of such branches of learning;
Above provision makes it clear that the council created under All India Council of Technical Education Act, 1987 directly Controls Officers of the said university in the above matters.
19. Before concluding this issue, I will like to discuss some of the Supreme Court judgments and our own High Court judgments on the issue of "other authorities" or "State" and their amenability under Article 226 of the Constitution of India which runs as follows :-
A. In deciding the question whether the petitioner- institution, i.e., the Regional College of Engineering, Srinagar run under a society registered Registration Act if an instrumentality or agency of State thereby falls within the expression "other authorities" the Hon'ble Apex Court in AIR 1981 SC 487, in paras 15 and 16 held as follows :
"15. It is in the light of this discussion that we must now proceed to examine whether the Society in the present case is an "authority" falling within the definition of "State" in Article 12. Is it an instrumentality or agency of the Government? The answer must obviously be in the affirmative if we have regard to the Memorandum of Association and the Rules of the Society. The composition of the Society is dominated by the representatives 33 appointed by the Central Government and the Governments of Jammu and Kashmir, Punjab, Rajasthan and Uttar Pradesh with the approval of the Central Government. The monies required for running the college are provided entirely by the Central Government and the Government of Jammu and Kashmir and even if any other monies are to be received by the Society, it can be done only with the approval of the State and the Central Governments. The Rules to be made by the Society are also required to have the prior approval of the State and the Central Governments and the accounts of the Society have also to be submitted to both the Governments for their scrutiny and satisfaction. The Society is also to comply with all such directions as may be issued by the State Government with the approval of the Central Government in respect of any matters dealt with in the report of the Reviewing Committee. The control of the State and the Central Governments is indeed so deep and pervasive that no immovable property of the Society can be disposed of in any manner without the approval of both the Governments. The State and the Central Governments have even the power to appoint any other person or persons to be members of the 'Society and any member of the Society other than 34 a member representing the State or Central Govt. can be removed from the membership of the Society by the State Government with the approval of the Central Government. The Board of Governors which is in-charge of general superintendence, direction and control of the affairs of Society and of its income and property is also largely controlled by nominees of the State and the Central Governments. It will thus be seen that the State Government and by reason of the provision for approval, the Central Government also, have full control of the working of the Society and it would not be incorrect to say that the Society is merely a projection of the State and the Central Governments and ;to use the words of Ray, C. J. in Sukhdev Singh's case (AIR 1975 SC 1331) (supra) the voice is that of the State and the Central Governments and the hands are also of the State and the Central Governments. We must, therefore, hold that the Society is an instrumentality or the agency of the State and the Central Governments and it is an 'authority' within the meaning of Article 12.
16. If the Society is an "authority" and therefore "State" within the meaning of Article 12, it must follow that it is subject to the constitutional 35 obligation under Article 14. The true scope and ambit of Article 14 has been the subject-matter of numerous decisions and it is not necessary to make any detailed reference to them. It is sufficient to state that the content and reach of Article 14 must not be confused with the doctrine of classification.
Unfortunately, in the early stages of the evolution of our constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that that article forbids discrimination and there would be no discrimination where the classification making the differentia fulfils two conditions, namely, (i) that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that that differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action. It was for the first time in E.P. Royappa v. State of Tamil Nadu that this Court laid bare a new dimension of Article 14 and pointed out that that article has highly activist magnitude and it embodies a guarantee against arbitrariness. This Court speaking through one of us (Bhagwati, J.) said: SCC p. 38: SCC (L&S) p. 200, para 85] 36 "The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose, J., 'a way of life', and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all- embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article
16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment."
37This vital and dynamic aspect which was till then lying latent and submerged in the few simple but pregnant words of Article 14 was explored and brought to light in Royappa case and it was reaffirmed and elaborated by this Court in Maneka Gandhi v. Union of India where this Court again speaking through one of us (Bhagwati, J.) observed: (SCC pp. 283-84, para 7) "7. Now the question immediately arises as to what is the requirement of Article 14: What is the content and reach of the great equalising principle enunciated in this Article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits.... Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence."
38This was again reiterated by this Court in International Airport Authority case at p. 1042 (SCC p. 511) of the Report. It must therefore now be taken to be well settled that what Article 14 strikes at is arbitrariness because any action that is arbitrary, must necessarily involve negation of equality. The doctrine of classification which is evolved by the courts is not paraphrase of Article 14 nor is it the objective and end of that article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached. Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an "authority" under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution.
39B. Similarly in the decision in Sri Anadi Mukta Sadguru Sree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R.Rudani, AIR 1989 SC 1607, the case relating to service conditions of employees of science college at Ahmedabad. The question taken for consideration is, if the rights of a purely of private character and if the management of the college is purely a private body, with no public duty, whether mandamus lies in deciding the case particularly, on the question of maintainability of the writ petition for mandamus as against the management of the college. Paras 14, 15, 16, 19 & 21 relevant for our case, are reproduced herein below. :
"14. 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 denied. It has to be appreciated that the appellants- trust was managing the affiliated college to which public money is paid as Government aid. Public money paid as Government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like Government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the 40 affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. (See - The Evolving Indian Administrative Law by M. P. Jain (1983) p. 266). So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party.
15. The law relating to mandamus has made the most spectacular advance. It may be recalled that the remedy by prerogative writs in England started with very limited scope and suffered from many procedural disadvantages. To overcome the difficulties, Lord Gardiner (the Lord Chancellor) in pursuance of Section 3(1)(e) of the Law Commission Act, 1965, requested the Law Commission "to review the existing remedies for the judicial control of administrative acts and commissions with a view to evolving a simpler and 41 more effective procedure." The Law Commission made their report in March 1976 (Law Com No.
73). It was implemented by Rules of Court (Order
53) in 1977 and given statutory force in 1981 by Section 31 of the Supreme Court Act 1981. It combined all the former remedies into one proceeding called Judicial review. Lord Denning explains the scope of this "judicial review" :
"At one stroke the courts could grant whatever relief was appropriate. Not only certiorari and mandamus, but also declaration and injunction. Even damages. The procedure was much more simple and expeditious. Just a summons instead of a writ. No formal pleadings. The evidence was given by affidavit. As a rule no cross-examination, no discovery, 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 42 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).
16. There, however. the prerogative writ of mandamusmus confined only to public authorities to compel performance of public duty. The 'public authority' for them means every body which is created by statute - and whose powers and duties 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".
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19.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 43 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.
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21. 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." (Judicial Review of Administrative Act 4th Ed. p. 540). We share. this view. The judicial control over the fast 44 expanding maze of bodies: affecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances.
Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found'. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition."
While concluding the judgment on the above point and concluding the said case, Hon'ble Apex Court rejected the stand of the trust on the question on maintainability of the writ resisting issuance of mandamus, thus upholding the view of the High Court for payment of all amounts due to the respondents as per the judgment of the High Court.
At this stage, I want to make one thing clear that the college involved in the above two cases were purely private colleges existing under statutory universities and not standing in the footing of Deemed University as that of the present opposite party university created under Section 3 of the U.G.C. Act as that of the KIIT and stands at a much better footing.
C. Similarly, in another case in U.P State Cooperative Land Development Bank Ltd. v. Chandra Bhan Dubey and others, A.I.R. 1999 S.C. 753, the point involved, is whether the U.P. State Cooperative State Land Development Bank Limited, is an authority 45 and an instrumentality of the State and as such, amenable to the writ Jurisdiction of the High Court. The case, in the High Court, involved termination of the employee of the above Bank following an outcome in a disciplinary proceeding. The outcome of the disciplinary proceeding was challenged in the High Court and the High Court allowed the writ petition by nagativing the plea of the advocate that it is not amenable to the writ petition being not an authority or state within the meaning of the Article 12 of the Constitution.
But coming to the decide the question of an institution become the State and whether it is amenable to the writ jurisdiction, the Hon'ble Apex Court in the said judgment held as follows:
"22. The language of Article 226 does not admit of any limitation on the powers of High Court for the exercise of jurisdiction thereunder though by various decisions of this Court with varying and divergent views it has been held that jurisdiction under Article 226 can be exercised only when or authority, decision of which is complained, was exercising its power in the discharge of public duty and that writ is a public law remedy. In Rohats Industries Ltd., and Anr. Vrs Rohats Industries Staff Union & Ors [(1976) 2 SCC 82] it was submitted before the Constitution Bench that an award under Section 10A of the Industrial Disputes Act, 1947 savours of a privates arbitration and was not amenable to correction 46 under Article 226 of the Constitution. The Court said as under :
"The expansive and extraordinary power of the High Courts under Article 226 is as wide as the amplitude of the language used indicates and so can affect any person even a private individual - and be available for any (other) purpose - even one for which another remedy may exist. The amendment to Article 226 in 1963 inserting Article 226 (1A) reiterates the targets of the writ power as inclusive of any person by the expressive reference to any person by the expressive reference to one thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a china shop". This Court has spelt out wise extraordinary remedy and High Courts will not go beyond those monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent Speaking in critical retrospect and portentous prospect, the writ power has, by and large, been the people's sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights. We hold that the award here is not beyond the legal reach of Article 226, although this power must be kept in severely judicious leash."47
Many rulings of the High Courts, pro and con, were cited before us to show that an award under Section 10A of the Act is insulated from interference under Article 226 but we respectfully agree with the observations of Gajendragadkar, J. (as he then was) in Engineering Mazdoor Sabha [1963 Supp.(1) SCR 625, 640] which nail the argument against the existence of jurisdiction. The learned Judge clarified at p.640 :
"Article 226 under which a writ of certiorari can be used in an appropriate case, is, in a sense, wider than Article 136, because the power conferred on the High Courts to issue certain writs is not conditioned or limited by the requirement that the said writs can be issued courts or tribunals. Under Article 226(1), an appropriate writ can be issued to any person or authority, including in appropriate cases any Government, within the territories prescribed. Therefore, even if the arbitrator appointed under Section 10A is not a tribunal under Article 136 in a proper cases.' a writ may lie against his award' under Article 226".
D. The Hon'ble Apex Court in Praga Tools v. S.H.C.A. Imanual, 1969(1) SCC 585 in para 24 observed as follows:-
"24. 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 mandamus can issue, for instance, to an 48 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 purposes of fulfilling public responsibilities. [Cf. Halsbury's Laws of England (3rd Ed.), Vol. II, p. 52 and onwards]."
E. Similarly in deciding the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111, on the issue of whether the particular body comes under the definition of Article-12 of the Constitution of India or not, the Hon'ble apex court per majority, in paras-5, 6, 8 and 11 in referring to a decision in AIR 1967 SC 1857 and 1975 SCC 485 in Para- 98.
Paras 5. 6, 8 and 11 held as under :
5. The Constitution has to an extent defined the word "State" in Article 12 itself as including "the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India".
6. That an "inclusive" definition is generally not exhaustive is a statement of the obvious and as far 49 as Article 12 is concerned, has been so held by this Court. The words "State" and "authority" used in Article 12 therefore remain, to use the words of Cardozo, among "the great generalities of the Constitution" the content of which has been and continues to be supplied by courts from time to time.
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8. But before considering the decisions it must be emphasized that the significance of Article 12 lies in the fact that it occurs in Part III of the Constitution which deals with fundamental rights.
The various articles in Part III have placed responsibilities and obligations on the "State" vis- à-vis the individual to ensure constitutional protection of the individual's rights against the State, including the right to equality under Article 14 and equality of opportunity in matters of public employment under Article 16 and most importantly, the right to enforce all or any of these fundamental rights against the "State" as defined in Article 12 either under Article 32 by this Court or under Article 226 by the High Courts by issuance of writs or directions or orders.
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11. Initially the definition of State was treated as exhaustive and confined to the authorities or those which could be read ejusdem generis with the authorities mentioned in the definition of Article 12 itself. The next stage was reached when the definition of "State" came to be understood with reference to the remedies available against it. For example, historically, a writ of mandamus was available for enforcement of statutory duties or duties of a public nature. Thus a statutory corporation, with regulations framed by such corporation pursuant to statutory powers was considered a State, and the public duty was limited to those which were created by statute.
F. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111,
98. We sum up our conclusions as under:
(1) Simply by holding a legal entity to be an instrumentality or agency of the State it does not necessarily become an authority within the meaning of "other authorities" in Article 12. To be an authority, the entity should have been created by a statute or under a statute and functioning with liability and obligations to the public. Further, the statute creating the entity should have vested that entity with power to make law or issue binding directions amounting to law within the meaning of 51 Article 13(2) governing its relationship with other people or the affairs of other people -- their rights, duties, liabilities or other legal relations. If created under a statute, then there must exist some other statute conferring on the entity such powers. In either case, it should have been entrusted with such functions as are governmental or closely associated therewith by being of public importance or being fundamental to the life of the people and hence governmental. Such authority would be the State, for, one who enjoys the powers or privileges of the State must also be subjected to limitations and obligations of the State. It is this strong statutory flavour and clear indicia of power -- constitutional or statutory, and its potential or capability to act to the detriment of fundamental rights of the people, which makes it an authority; though in a given case, depending on the facts and circumstances, an authority may also be found to be an instrumentality or agency of the State and to that extent they may overlap. Tests 1, 2 and 4 in Ajay Hasia enable determination of governmental ownership or control. Tests 3, 5 and 6 are "functional" tests. The propounder of the tests himself has used the words suggesting relevancy of those tests for finding out if an entity was instrumentality or agency of the State.52
Unfortunately thereafter the tests were considered relevant for testing if an authority is the State and this fallacy has occurred because of difference between "instrumentality and agency" of the State and an "authority" having been lost sight of sub silentio, unconsciously and undeliberated. In our opinion, and keeping in view the meaning which "authority" carries, the question whether an entity is an "authority" cannot be answered by applying Ajay Hasia tests.
(2) The tests laid down in Ajay Hasia case are relevant for the purpose of determining whether an entity is an instrumentality or agency of the State. Neither all the tests are required to be answered in the positive nor a positive answer to one or two tests would suffice. It will depend upon a combination of one or more of the relevant factors depending upon the essentiality and overwhelming nature of such factors in identifying the real source of governing power, if need be by removing the mask or piercing the veil disguising the entity concerned. When an entity has an independent legal existence, before it is held to be the State, the person alleging it to be so must satisfy the court of brooding presence of the Government or deep and pervasive control of the Government so as to hold it to be an instrumentality or agency of the State.
53G. Similarly in a decision as reported in Smt Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621 Ayyangar, J. interrupting the words "other authorities in Article-12 held, "Again, Article 12 winds up the list of authorities falling within the definition by referring to "other authorities" within the territory of India which cannot obviously be read as ejusdem generis with either the Government and the Legislatures or local authorities. The words are of wide amplitude and capable of comprehending every authority created under a statute and functioning within the territory of India or under the control of the Government of India. There is no characterisation of the nature of the 'authority' in this residuary clause and consequently it must include every type of authority set up under a statute for the purpose of administering laws enacted by the Parliament or by the State including those vested with the duty to make decisions in order to implement those laws."
H. In Unni Krishan v. State of Andhra Pradesh (1993) 1 SCC 645, the Hon'ble Supreme Court held "that a private body performing public duty is amenable to writ jurisdiction. The Supreme Court held that under Article 226 writ can be issued to any person or authority for enforcement any of the fundamental rights or for any 'other purpose'."
In para-79, the Supreme Court further observed that 54 "if the emphasis is on the nature of duty, on the same principle it has to be held that these educational institutions discharge public duties, irrespective of the educational institutions receiving aid it should be held that it is a public duty. The absence of aid does not detract from the nature of duty. "This observation of the Supreme Court with regard to private institutions is indicative of the status the private institutions enjoy."
I. In K. Krishnamacharylu and others v. Sri Venkateswara Hindu College of Engineering and another, AIR 1998 SC 295, while dealing the claim of the teachers of the private institutions for parity of pay the Supreme Court held as follows :-
Para-4 * * * " We are of the view that the State has obligation to provide facilities and opportunities to the people to avail of the right to education. The private institutions cater to the needs of the educational opportunities. The teacher duly appointed to a post in the private institution also is entitled to seek enforcement of the order issued by the Government. The question is as to which forum one should approach. The High Court has held that the remedy is available under the industrial 55 Disputes Act. When an element of public interest is created and the institution is catering to that element, the teacher, the arm of the institution is also entitled to avail of the remedy provided under Article 226 ; the jurisdiction part is very wide. It would be different position, if the remedy is a private law remedy. So, they cannot be denied the same benefit which is available to others. Accordingly we hold that the writ petition is maintainable. They are entitled to equal pay so as to be on par with Government employees under Article 39(d) of the Constitution."
J. The question has been dealt with by the Supreme Court in Chandigarh Administration and others v. Mrs. Rajni Vali and others, 200 AIR SOW 153. The relevant observation is as follows :
"6. The position has to be accepted as well settled that imparting primary and secondary education to students is the bounden duty of the State Administration. It is a constitutional mandate that the State shall ensure proper education to the students on whom the future of the society depends. In line with this principle, the State has enacted Statutes and framed Rules and Regulations to control/regulate establishment and running of private schools at different level. The State Government provides grant-in-aid to private schools with a view to ensure smooth running of 56 the institution and to ensure that the standard of teaching does not suffer on account of paucity of funds. It needs no emphasis that appointment of qualified and efficient teachers is a sine qua non for maintaining high standard of teaching in any educational institution. Keeping in mind these and other relevant factors this Court in a number of cases has intervened for setting right any discriminatory treatment meted out to teaching and non-teaching staff of a particular institution or a class of institutions."
K. In Binny Ltd. and another, V. Sadasivan and others, AIR 2005 S C 3202, Hon'ble Apex Court held :
"29. Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel the public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the 57 scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies. According to Halsbury's Laws of England 3rd ed. Vol. 30,page- 682, "a public authority is a body not necessarily a county council, municipal corporation or other local authority which has public statutory duties to perform and which perform the duties and carries out its transactions for the benefit of the public and not for private profit." There cannot be any general definition of public authority or public action. The facts of each case decide the point.
xx xx xx
31. The decision of the employer in these two cases to terminate the services of their employees cannot be said to have any element of public 58 policy. Their cases were purely governed by the contract of employment entered into between the employees and the employer. It is not appropriate to construe those contracts as opposed to the principles of public policy and thus void and illegal under Section 23 of the Contract Act. In contractual matters even in respect of public bodies, the principles of judicial review have got limited application. This was expressly stated by this Court in State of U.P. v. Bridge and Roof Co., (1996) 6 SCC 22 and also in Kerala State Electricity Board v. Kurien E. Kalathil (2000) 6 SCC 295. In the latter case, this Court reiterated that the interpretation and implementation of a clause in a contract cannot be the subject matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract. If a term of a contract is violated, ordinarily, the remedy is not a writ petition under Article 226."
L. In Chandra Mohan v. NCERT, AIR 1992 SC 76, in paragraph-3, the Apex Court held as follows:
"It must not be lost sight of that in the modern concept of Welfare State, independent institution, corporation and agency are generally subject to State control. The State control does not render such bodies as 'State' under Art.12. The State 59 control, however, vast and pervasive is not determinative. The financial contribution by the State is also not conclusive. The combination of State aid coupled with an unusual degree of control over the management and policies of the body and rendering of an important public service being the obligatory functions of the State may largely point out that the body is 'State'."
M. In Smt. Ujjam Bai v. State of Uttar Pradesh, AIR 1962 S.C. 1621 the Apex Court while interpreting the words "other authorities" in Article-12 held:
"Again Art. 12 winds up the list of authorities falling within the definition by referring to "other authorities" within the territory of India which cannot obviously be read as ejusdem generis with either the Government and the Legislatures or local authorities. The words are of wide amplitude and capable of comprehending every authority created under a statute and functioning within the territory of India or under the control of the Government of India. There is no characterisation of the nature of the "authority" in this residuary clause and consequently it must include every type of authority set up under a statute for the purpose of administering laws enacted by the Parliament or 60 by the State including those vested with the duty to make decisions in order to implement those laws"
N. Now coming to discuss some of our own High Court decisions, I observe as follows:-
The matter in between Smt. Susama Patnaik v. Managing Committee, Buxi Jagabandhu English Medium School and others, 1992(I) OLR-503. In Paragraphs 10 and 11, a Division Bench of this Court held as follows:-
"10. The materials on record do not permit us to hold for definite that the school in question has to be taken to be a recognised institution inasmuch as the communications in Annexure-11 and A/1 are not clinching because of the facts noted above, and because the constitution of the managing committee in accordance with the rules made in that behalf is also not decisive as that provision applies to every private educational institution which may not be a recognised institution in view of the definition of this expression in Sec.3(j) of the Act. But then, this is not enough to reject the petitions inasmuch as the prayer of the petitioners to reinstate them in service can be allowed on another ground the same being violation of the principles of natural justice while terminating their services which aspect of the matter has been covered by a recent decision of this Court in Basanti Mohanty v. State of Orissa, 72 (1991) 61 CLT 127. In that case it was held that a private educational institution would be amenable to the writ jurisdiction of this Court, and, if the service of a teacher of such a school is terminated violating the principles of natural justice, it would be open to this Court to order for his reinstatement. (It may be stated that a Special Leave Petition against this Court's judgment in the aforesaid case has since been reportedly rejected by the Hon'ble Supreme Court).
11. Shri Gajendra, however, contends that the conclusion arrived at in Basanti (supra) that a private educational institution is amenable to the writ jurisdiction of this Court needs a fresh look in view of the recent decision of the Apex Court in Chandra Mohan Khanna v. National Council of Education Research and Training, (1991) 1 SCC
578. In which it was held that the respondent-
institution was not amenable to the writ jurisdiction of the High Court because of the fact that the same cannot be regarded as an instrumentality or other authority of the State within the meaning of Art.12 of the Constitution.
Shri Gajendra contends that as the respondent- society in the aforesaid case had been registered under the Societies Registration Act and as by going through the various earlier decisions of the 62 Court it was held that the society was not a 'State' under Art.12, the objection relating to the maintainability of the writ application has to be upheld as the school is also registered under the Societies Registration Act. As to this decision, we would like to state that even if it be conceded that the school in question is not a 'State' within the meaning of Art.12 of the Constitution, that would not clinch the matter in view of what has been held in S.M.V.S.J.M.S. Trust v. V.R. Rudani, AIR 1989 SC 1607, inasmuch as it was pointed out in paragraph 19 of that judgment that the 'term authority' used in Art.226 must receive a liberal meaning unlike this term in Art.12, because of which it was opined that the words 'any authority' used in Art.226 are not to be confined words 'any person or authority' used in Art.226 are not to be confined only to statutory authorities or instrumentalities of the State. In Basanti's case (supra), reference was made to another decision of this Court in Antaryami Rath v. State of Orissa, 70 (1990) CLT 642. That decision dealt with the question as to whether private educational institutions are amenable to the writ jurisdiction of this Court. By relying on Rudani's case (supra) it was held in paragraph-7 of Antaryami that private educational institutions would be amenable to the 63 writ jurisdiction of this Court on the ground that they perform public duty. We are of the view that the cases at hand attract the ratio of Antaryami Rath and Basanti (supra) rather than that of Chandra Mohan (supra), and we would, therefore, hold that the school at hand is amenable to the writ jurisdiction of this Court."
O. The matter in between Basanti Mohanty v. State of Orissa and others, 72 (1991) CLT 127. In Para-6, a Division Bench of this Court held as follows:-
"6. POINT No. 4 :__This takes us to the question as to whether the petitioner could have approached this Court directly in its writ jurisdiction seeking redress. So far as this aspect of the case is concerned, learned counsel for both sides have relied on a recent Bench decision of this Court in Antaryami Rath v. State of Orissa, 70(1990) CLT
642. That decision dealt with the question as to whether private educational institutions are amenable to writ jurisdiction of this Court. Two reasons were given for answering the question in the affirmative. The first was that these institutions have to be regarded as statutory bodies because of the definition of the expression "Existing Educational Institutions" given in Section 3(f) of the Act to mean "any aided, recognised or Government educational institution established before the commencement of this Act and continuing as such at such commencement" and because of the provision in Section 4 (4) of the Act stating that all existing educational institutions shall be deemed to have been established in 64 accordance with this Act. Shri Rath contends that this reason is not available in the present case because of none of the provisions of the Act being applicable to a minority institution like that of Vivekananda Vidya Mandir. Shri Patnaik counters this submission by stating that recognition and grant-in-aid are not creatures of the Act inasmuch as recognition is dealt with by the Board of Secondary Education's regulations and grant-in-aid is governed by provisions independent of the Act. Though there is force in this submission of Shri Patnaik, yet we do not think if we would be justified on holding that the Society is amenable to writ jurisdiction of this Court because of it being a statutory body which conclusion was arrived at in Antaryami by referring to the aforesaid provisions of the Act.
6.1 The aforesaid, however, is not enough to close the doors of this Court inasmuch as in Antaryami it had also been held after referring to Shri Anadi Mukta Sadguru S M. V. S.J. M. S. Trust v. V. R. Rudani. AIR 1989 SC 1607, that the word "authority" in Art 226 would not be confined only to statutory authorities but would cover any other person or body performing public duty. It was then held that there cannot be any doubt that private educational institutions also perform public duty inasmuch as they perform a most useful social function in imparting education and that too in accordance with the curricular prescribed by respective statutory bodies. So, it was observed that they discharge a very important public function. It was, therefore, concluded that private educational institutions would be amenable to the writ jurisdiction of this Court on the ground that 65 they perform public duty. (See para 7 of the judgment).
6. 2 In view of the above, we would accept the fourth submission of Shri Patnaik and would hold that the petitioner could have approached this Court under Art. 226 of the Constitution in assailing the order of termination."
20. Black's Law Dictionary (7th Edn.) defines "instrumentality" to mean "a means or agency through which a function of another entity is accomplished, such as a branch of a governing body". "Agency" is defined as:
"A fiduciary relationship created by express or implied contract or by law, in which one party (the agent) may act on behalf of another party (the principal) and bind that other party by words or actions."
Thus instrumentality and agency are the two terms which to some extent overlap in their meaning;
"instrumentality" includes "means" also, which "agency" does not, in its meaning. "Quasi- governmental agency" is "a government-sponsored enterprise or corporation (sometimes called a government-controlled corporation)". Authority, as Webster's Comprehensive Dictionary (International Edition) defines, is "the person or persons in whom government or command is vested; often in the plural". The applicable 66 meaning of the word "authority" given in Webster's Third New International Dictionary, is "a public administrative agency or corporation having quasi-governmental powers and authorized to administer a revenue-producing public enterprise". This was quoted with approval by the Constitution Bench in RSEB case wherein the Bench held: (AIR p. 1862, para 5) "5. This dictionary meaning of the word 'authority' is clearly wide enough to include all bodies created by a statute on which powers are conferred to carry out governmental or quasi- governmental functions. The expression 'other authorities' is wide enough to include within it every authority created by a statute and functioning within the territory of India, or under the control of the Government of India; and we do not see any reason to narrow down this meaning in the context in which the words 'other authorities' are used in Article 12 of the Constitution."
21. Here it will be of great significance to quote a passage from the Constitutional Law of India by H.M. Seervai (Para-9.8. Page-439):
"9.8. Since the new doctrine has been propounded by judges without asking and answering the question "What is meant by the equal protection of 67 the law's ? " we must answer that question. If all men were created equal, and remained equal throughout their lives, then the same laws would apply to all men. But we know that men are unequal ; consequently a right conferred on persons that they shall not be denied "the equal protection of the laws" cannot mean the protection of the same laws for all. It is here that the doctrine of classification, (the old doctrine) steps in, and gives content and significance to the guarantee of the equal protection of the laws. According to that doctrine equal protection of the laws must mean the protection of equal laws for all persons similarly situated. To separate persons similarly situated from those who are not, we must discriminate, that is, "act on the basis of a difference between" persons, or "observe distinctions carefully" between persons who are, and persons who are not similarly situated. But as the distinction is to be made for the purpose of making a law, how must the distinction be related to the law ? This is answered by the central test for a permissible classification : "Permissible classification must satisfy two conditions, namely,
(i) it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, 68 and (ii) the differentia must have a rational relation to the object sought to be achieved by the statute in question", with the qualification that" the differentia and the object are different(so) that the object by itself cannot be the basis of the classification. A law based on a permissible classification fulfils the guarantee of the equal protection of the laws and is valid ; a law based on an impermissible classification violates that guarantee and is void."
22. The above judgments make it clear that the teachers who are arms of the institutions are entitled to enforce their right availing the remedy provided under Article 226. This otherwise means that in a just and proper case where injustice is palpable, the Court should not hesitate to exercise its powers under Article 226 to remove the same. At the cost of repetition, I once again observe that in view of my discussion in paragraphs 12 to 18 the opposite party no.1 University is unambiguously imparting a public duty by clearly shouldering a sovereign power of the State and it has an public ailment. Law as laid down by our own High Court (supra) makes it clear that powers of Article 226 can be invoked even where there is violation of natural justice while terminating teachers. The decisions shown by the opposite parties counsels are clearly distinguishable from the point of view that case of Xavier Institute is wholly unaided private institution having passed not taking into account / consideration the catena of decisions operating in the filed referred to hereinabove whereas other decisions are simply in respect of non-statutory, non-aided institutions 69 having no public ailment or public duty at all. None of the institutions involved in the decision cited by the opposite parties is that of a Deemed University status. To add to it here it is a university created under the U.G.C. Act.
23. It also is, thus, clear that the old and conservative view regarding the maintainability of writs against the State or its instrumentalities is giving way to "a liberal meaning'. The power under Art. 226 is no longer confined to the issue of writs against statutory authorities and instrumentalities of the State. It covers 'any other person or body performing public duty'. Deemed Universities are supplementing the effort of the State. These cannot survive or subsist without recognition and/or affiliation. The bodies which grant recognition are required to ensure that the institution complies with Art. 14 of the Constitution. These decision represent a Quantum jump
- from "the tests' in Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487, to a liberal meaning to the term "authority" in Article 226.
24. Further applying the ratio submitted by learned counsel for KIIT vide (2002) 5 S.C.C.-111 it is seen not only the body of the KIIT members from Central Government as well as State Government but, its aim and object is to provide a greater public service in the side of higher education, the University Grant Commission as well as the All India Technical Council of India has its own control over the particular institution and it also receives aids to a great extent from either Central Government and Central Governmental Agencies as clearly narrated in para-13 of this judgment. It also required a good 70 number of faculties from Central Government and Central Government affiliated institutions. It is not only a Deemed University under Section 3 of the U.G.C. Act, 1956 but it has been declared to be an university under the notification of the Central Government followed with a gazette notification by Central Government. The university on its own admission as clearly appearing from respective documents establishes that the university enjoys 10% -20% or more from such aids as over head and it utilizes the same for developmental purpose of the university. From the details narrated hereinabove, the opposite party university is not only enjoying the powers and privileges of the State but also subjected to the limitations and obligations of the State. By virtue of its creation under the U.G.C. Act and then being notified by the Union of India in the official gazette accepting the same to be a Deemed University it can neither remain outside the purview of the "State" nor from the purview of the "other authority" and as such is amenable under Article 226 of the Constitution of India.
To conclude point no.i, it may be stated that classification is permissible when two conditions are satisfied, that is
(i) it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from other and (ii) the differentia must have a rational relation to the object sought to be achieved. In the instant case, the lecturers of the private institution receiving grant from the Centre and Central Agencies, recognized by State created under U.G.C. Act, remains under control of Central Government, University Grants Commission as well as the authorities under AICTE Act are discharging the same duties as that 71 of the lecturers of Govt. institutions or of the institutions which are created under the statute ; and they all are discharging 'public duty' in aid of constitutional mandate. Merely because they are not employees of the State Govt. or of the institutions created under the statute, it would be an impermissible classification to place them as a different group to deny them the remedies under Article 226 for preservation and protection of their service rights. Any decision the way other is likely to have a deterrent effect on the objective sought to be achieved. The duty performed by two sets of lecturers is in aid of constitutional mandate and, therefore, it would be unjust to classify the teachers of Deemed institutions as a class distinct from the other. Service holders having similar stake cannot be discriminated failing such prohibition it will have greater effect on the ultimate duty to educate the students as one cannot forget that the teachers are the most vital organ of the whole teaching system and if this vital organ fails then may be whole system will collapse.
Besides above, I also find the petitioner also becomes remediless as he has no remedy of Appeal to the higher Authority in view of no such provision either in the memorandum of Article of Association or in Conduct and Discipline Rules as provided at Chapter-II of KIIT University Human Resources Manual. Considering such an aspect a Constitution Bench of Hon'ble Apex Court in T.M.A. Pai Foundation and others vrs. State of Karnataka and other (2002) SCC 481 directed setting up of Appellate Tribunal in each district of each State to hear appeals over the decisions taken by the Disciplinary Bodies of even purely private Education Institutions. While directing so the Hon'ble Apex Court emphasized that speedy resolution of the 72 disputes between the Teachers and the Managerial is in the interest of all, i.e., students, Management as well as the concerned Teachers. No such Tribunal having been set up in this State as on date, I find the petitioner becomes remediless.
Thus while answering the point no.i in affirmative, I declare that the opposite party no.1 university being a creature of a statute and since performing public duty comes well within the meaning of "State" under Article 12 of the Constitution of India and its important organ the Teaching Staffs as a part of such public duty as such their grievances can be amenable to the writ jurisdiction of High Court in exercise of jurisdiction under Article 226 of the Constitution of India.
25. Now, coming to answer on point no.ii, facts, as borne out demonstrate that the university initiated an in-house enquiry against the petitioner and the said in-house committee admittedly holding an enquiry behind the back of the petitioner appears to have arrived against the petitioner, vide Annexure-C/1 recommended the authority not to extend the petitioner's probation and KIIT authority claims that it is only depending on such recommendation the authority passed order dismissing the petitioner from his services vide order under Annexure-4. Since enquiry ended with a stigma and the impugned order of dismissal was passed going away from the recommendation of the in-house committee and considering the fact that petitioner was a probationer compliance of natural justice was the minimum requirement. Law is well settled vide AIR 1999 S.C. 983, AIR 2000 S.C. 1080, (2010) 8 S.C.C. 220 and the two decisions of our own 73 High Court referred to in paras N and O holding that termination in case of a probationer also requires compliance of principle of natural justice and the same having not been followed the order of termination vide Annexure-4 cannot be sustained. There is gross violation of rights under Articles 14, 16 and 19 of the Constitution of India. In (2010) 8 SCC 220 in para-43, the Hon'ble Apex Court has made it clear that finding against a probationer arrived at behind him which found to be the basis of discharge order such discharge order can only be passed after following principle of natural justice. A similar view is also taken by the Hon'ble Apex Court as reported in AIR 1989 S.C. 1431 at para-4 of the said judgment the Hon'ble Apex Court held that there cannot be a termination before the reason for termination is being communicated to the concerned employee.
In a land mark judgment the Hon'ble Apex Court as reported in AIR 1978 S.C. 597 in Paras 56 and 57 observed as follows:-
"The principle of reasonableness, which legally as well as philosphically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21would not be satisfied."74
"The principle of audi alteram partem which mandates that no one shall be condemned unheard is part of the rules of Natural Justice."
Under the above facts, rulings and in view of settled law that there cannot be a termination / dismissal order in absence of non- compliance of principle of natural justice. Thus, point no.ii is also answered against the opposite party University holding the action of the University in terminating the services of the petitioner in absence of compliance of Natural Justice as bad and unsustainable.
26. Now coming to answer on point no.iii, I find that the services of the petitioner was terminated by order dated 20.06.2011 as appearing at Annexure-4. Though the said order did not attach any stigma but, while answering to the pleadings of the petitioner the opposite party nos.1 to 4 in their counter affidavit submitted that before the order of termination vide Annexure-1 was passed the case of the petitioner was being examined by an in-house Enquiry Committee, who have an unanimous opinion that the conduct of Dr. Uttam Kumar Samanta, the petitioner has not been satisfactory and is highly unbecoming of a responsible faculty member of the university as clearly appearing at Annexure-C/1. It is based on such report his service was terminated vide Annexure-4. Thus, in my considered opinion even though the order of termination did not attach any stigma yet in view of finding of the Enquiry Committee as appearing at Annexure-C/1 with the strengthening of Right to Information Act and transparency in the actions the future of the petitioner is very much likely to be jeopardized. As such after coming to the above 75 finding which finding was arrived at by an internal enquiry committee held behind the back of the petitioner, law minimum requires compliance of natural justice by at least affording an opportunity to the petitioner before issuing the terminal order vide Annexure-4 for this the termination order vide Anmnexure-4 cannot be sustained in the eye of law. My such view also gets the support of Hon'ble Apex Court decision vide AIR 2000 S.C. 1080 where in para-7 the Hon'ble Apex Court held that order of termination attaching stigma needs compulsory compliance of principle of Natural Justice. Under the circumstances, I answer point no.iii also in favour of the petitioner and against the opposite parties.
27. In view of my findings on point no.i vide paragraphs 22, 23 and 24, my findings on point no.ii at para-25 and my findings on point no.iii at para-26 while allowing the writ petition, I set aside the impugned orders at Annexure-4 of the writ petition as well as the consequential order as appearing at Annexure-6 of the writ petition, I further declare that the petitioner whose services has been taken away by order under Annexure-4 be deemed to be continuing in service for the entire period but, since he has not worked for all these period he may be paid 60% back wages. So far petitioner's prayer for direction to the opposite party no.4 for supply of documents mentioned in Annexure-2, documents at internal page-25 filed vide Annexure-12 series in the Supplementary Affidavit at the instance of the petitioner it appears KIIT University has already brought it under the Fold of Rights to Information Act as Orissa Information Rules, 2005 and the petitioner is at liberty to press into service the provisions of the Right 76 to Information Act, 2005 for the said purpose. However, this judgment shall not preclude opposite party no.1 University to restart the proceeding against the petitioner but to conclude lawfully. I also make it clear that this Court has not expressed any opinion on the merit on allegations against the petitioner.
28. Thus, the writ petition succeeds. However, there shall be no order as to costs.
..........................
Biswanath Rath, J.
Orissa High Court, Cuttack.
The 29th day of September, 2014. /Behera .