Gujarat High Court
Ira Ajaykumar Vakharia Wife Of Kaivan ... vs Divyajyoti Trust on 16 March, 2018
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/17485/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 17485 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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IRA AJAYKUMAR VAKHARIA WIFE OF KAIVAN SHAH
Versus
DIVYAJYOTI TRUST
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Appearance:
MS DIMPLE A THAKER(6838) for the PETITIONER(s) No. 1,2
DS AFF.NOT FILED (N)(11) for the RESPONDENT(s) No. 1
MR RAMKRISHNA B DAVE(3404) for the RESPONDENT(s) No. 1
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 16/03/2018
CAV JUDGMENT
1. The present petition is essentially filed under Article 226 of the Constitution of India for seeking following reliefs :
Page 1 of 26 C/SCA/17485/2017 CAV JUDGMENT"A. The Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ and be pleased to quash and set aside the notice dated 31.8.2017 (at AnnexureA and B hereinabove) issued to the petitioners for terminating the contract of service and thereby terminating the services of the petitioner with one month notice and be pleased to direct the respondent hospital to provide the maternity benefits as stipulated in the Maternity Benefit Act,1961 to the petitioner No.1 and permit the petitioners to complete the contract as agreed till 22.22018.
B. The Hon'ble Court be pleased to stay the operation, implementation and execution of the notices dated 31.8.2017 (at AnnexureA and B hereinabove) issued by the respondent hospital to the petitioners till the final disposal of the petition."
2. Considering the impression which has been given before this Court that on account of the maternity issue, the petitioner No.1 sought a leave on 31.8.2017 and within a short span on the very same day, the authority, instead of considering the same, has terminated the services of both the husband and wife, who were serving as Medical Officers with the respondent hospital. It is the case of the petitioners that petitioner No.1 is an Vitreao Ratina Specialist, whereas petitioner No.2 is a Glucoma Specialist. The petitioner No.1 was appointed as Ratina Specialist in the respondent hospital, whereas petitioner No.2 was appointed on the contract basis for a period of 2 years on 23.2.2016. These petitioners were working and have completed almost a Page 2 of 26 C/SCA/17485/2017 CAV JUDGMENT period of one year and six months in the respondent hospital. The petitioner No.1 being a lady has asked for maternity leave on 31.8.2017 at about 2.40 p.m. to the respondent hospital and informed about proposed date of her maternity leave. It is the case of the petitioners that instead of considering, within a span of 20 minutes only, the petitioner No.1 received an email terminating the service contract of the petitioner without assigning any reason. In response to the said notice of termination dated 31.8.2017, the petitioner No.1 addressed a letter cum representation on 7.9.2017, pointing out that said action of respondent - hospital is arbitrary, smacks malafides and depriving the petitioner No.1 to seek maternity benefit. It is also the case of the petitioners that by virtue of the provisions contained under the Maternity Benefits Act,1961, the petitioner No.1 is entitled to have the benefit. However, on 12.9.2017 a decision was communicated that action of termination is as per the terms of the contract which has given a rise to the petitioners to submit the present petition.
3. At the outset, learned advocate appearing for the petitioners has submitted that she is under the instructions not to press the petition qua petitioner No.2 as the petitioner No.2 is not inclined to precipitate any further with present proceedings.
3.1 Permission as prayed for is granted. The present petition stands disposed of as not pressed qua Page 3 of 26 C/SCA/17485/2017 CAV JUDGMENT petitioner No.2.
4. Learned advocate appearing for the petitioner has submitted that the action of terminating the services is not only unjust and arbitrary but, tilted with malafides and the same is in gross violation of the protection to women in the employment by virtue of Maternity Benefit Act,1961. It has been contended that the action on the part of respondent hospital is solely with a view to see that the petitioner can be deprived of the benefit of maternity leave and it is evident from the fact that when the petitioner No.1 has sent an email on 31.8.2017 at 2.40 p.m., the authorized person of the respondent hospital has, in turn, within 20 minutes, addressed a notice of termination of contract. This itself is self explanatory and hence, as per the contention of learned advocate, this exercise of jurisdiction is thoroughly uncalled for and is not recognizable.
5. Learned advocate for the petitioner has further contended that throughout during the tenure of her service contract, the petitioner No.1 has discharged her duties with due diligence and there is no cause of complaint with regard to her work in any manner and there was neither any notice nor memo received prior to impugned communication of terminating the service. As a result of this, ex facie the termination has got an effect of serious consequence upon the petitioner as for no fault on her part, her services are put to an end. It has been Page 4 of 26 C/SCA/17485/2017 CAV JUDGMENT contended by the learned advocate for the petitioner that almost for a period of one year and six months, the petitioner has discharged her services and when time comes to extend the benefit under Section 6 of the Maternity Benefits Act,1961, the hospital authorities instead of extending the benefit has put an end to the service contract and that has compelled the petitioner to approach this Court under Article 226 of the Constitution of India.
5.1 Learned advocate for the petitioner has further contended by way of draft amendment that under the relevant Leave Rules of respondent trust which is running the hospital the women employees are entitled to get the benefit of maternity leave and, therefore, when the Act itself has provided such benefit it is not open for the respondent authority to deprive the petitioner from such conferred benefit. Even after the amendment clarificatory circular dated 12.4.2017 has been issued by the Ministry of Labour and Employment to the Maternity Benefits (Amendment) Act,2017 which clearly stipulates that even the said statute is covering the contractual employment, as well. Hence, the discontinuance or dismissal of a woman during the pregnancy period is thoroughly uncalled for and contrary to the object of the Act i.e. Maternity Benefits Act,1961. Learned advocate appearing for the petitioner has further contended that lot of work has been undertaken by the petitioner No.1 and looking to the work which has been discharged by the petitioner in the respondent -
Page 5 of 26 C/SCA/17485/2017 CAV JUDGMENThospital, such meritorious work will not permit the petitioner to discontinue by resorting to clause contained under the contract. It has been contended that this action is completely in violation of the terms of the contract of service for which execution has taken place between the petitioner and the respondent and for breach of such contract, since arbitrarily services have been put to an end, this Court can exercise the jurisdiction under Article 226 of the Constitution of India. Learned advocate, in addition to oral submissions, has tendered the written submissions, though on behalf of petitioners, the same are requested to be treated for and on behalf of petitioner No.1 only as petition is not pressed so far as petitioner No.2 is concerned, said written contentions, in brief, reproduced hereinafter:
"1. The Maternity Benefit Act is applicable to the Respondent Trust as it falls within the purview of Section 2(b) and the definition of 'establishment' of 3 (e) of the Maternity Benefit Act.
2. The action of termination of the Petitioners is completely arbitrary to the statutory provision more particularly Section 12 of the Maternity Benefit Act, by which especially petitioner no.1 is protected. The Petition is maintainable as the Petitioner no.1 who was pregnant at the relevant point of time was squarely covered by the Maternity Benefit Act which is a statute and thereby the right of not to terminated at the relevant point of time during her pregnancy is a statutory right guaranteed to her under section 12 of the Maternity benefit Act and Page 6 of 26 C/SCA/17485/2017 CAV JUDGMENT therefore for the enforcement of Legal right statutory right , a writ of mandamus can be issued even to the person/ authority bind by the provision of the statute for a particular provisions. Hence the dispute of termination during her pregnancy is not a contractual dispute and the writ of mandamus can be issued.
3. A writ of mandamus can be issued even to the private bodies or persons as there may be statutes which need to be complied with by all. A writ can be issued to a person or a body which are under liability to discharge any function under any statute to compel it to perform such a statutory function. Hence where there is public law element and a statutory right / duty upon the authority or person a writ can be issued by the Hon'ble High Court. The Hon'ble High Court has wide powers under Article 226 of the constitution of India not only for the enforcement of Fundamental right but also for enforcement of legal right for any other purpose.
4. The plea of alternative remedy although available to the other side but the same has not been raised by the other side till date. Further, in the present case the Hon'ble Court has already issued notice as well as Rule in the captioned matter and the other side already filed affidavits/ reply to the grievance raised in the petition and has also not raised a plea of alternative remedy and hence it is submitted that the petition cannot be rejected as the stage of final hearing on the ground of alternative remedy as per the law laid down by the Hon'ble Supreme Court in various decisions and by this Hon'ble High Court.
1.THE MATERNITY BENEFIT ACT, 1961: 1. Section 2(b) of the Act states that it is applicable to " ...............
(b) to every shop or establishment with the Page 7 of 26 C/SCA/17485/2017 CAV JUDGMENT meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months:] Provided that the State Government may, with the approval of the Central Government, after giving not less than two months' notice of its intention of so doing, by notification in the Official Gazette, declare that all or any of the provisions of this Act shall apply also to any other establishment or class of establishments industrial, commercial, agricultural or there wise.
(2) [Save as otherwise provided in 5 [sections 5A and 5B], nothing contained in this Act] shall apply to any factory or there establishment to which the provisions of the Employees' State Insurance Act, 1948 (34 of 1948), apply for the time being.
The Act applies to every shops and establishment within the meaning of any law for the time being in force in relation to shops and establishments in a state. In the State of Gujarat, Gujarat Shops and establishment is in force which defines 'establishment' as under Section 2 Clause (8) "Establishment" means a shop, commercial establishment, residential hotel, restaurant, eating house, theatre or other place of public amusement, or entertainment to which this Act applies and includes such other establishment as the [State] Government may, by notification in the Official Gazette, declare to be an establishment for the purposes of this Act;433 which it operates.
and Section (2) defines commercial establishment (4) "Commercial establishment" means an establishment which carries on any business, trade or profession or any work in connection Page 8 of 26 C/SCA/17485/2017 CAV JUDGMENT with or incidental or ancillary to, any business, trade or profession and includes a society registered under the Societies Registration Act, 1860 (XXI of 1860) and a charitable or other trust, whether registered or not, which carries on [whether for purposes of gain or not, any business, trade or profession or work in connection with or incidental or ancillary thereto but does not include a factory, shop, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment;
In brief : The definition of establishment includes commercial establishment and the definition of commercial establishment includes a trust. Hence the Act of Maternity Benefit Act will be applicable to the Respondent Trust.
Section 26 of the Maternity Benefit Act empowers the Appropriate Government may grant exemption from operation of all or any of the provisions of this Act or of any rule made thereunder.
It is submitted that even by amendment in Gujarat, They have not been exempted nor the act is made inapplicable.
2. Section 12 of the Act prohibits dismissal of woman during her pregnancy. Section 21 of the Act states for penalty for contravention of Act by employee.
In the present case, the Respondent has immediately within 25 minutes of knowing about her pregnancy terminated her from services, the said action is in clear violation of Section 12 of the Maternity Benefit Act and he is liable for penalty for contravention of Act as per Section 21 of the Act.
2. Judgments on Maternity Benefit Act:
1. Municipal Corporation of Delhi versus Female workers (muster rolls) and anrs.Page 9 of 26 C/SCA/17485/2017 CAV JUDGMENT
(Special Leave Petition(civil) No. 12797 of 1998 Order dated 08.03.2000) Page 31, 32 of the compilation of Judgment. (Internal page no. 5,6 of the Judgment)
2. Mrs. Priyanka Gujarakar Shrivastav versus Registrar General and another in Writ Petition no. 17004 of 2015 (High Court of Madhya Pradesh at Jabalpur) (page 35(unnumbered para 1, page 48 para 16 onwards) Contractual employees are entitled to maternity benefit act and relied upon the Supreme court Judgment of female workers (which is on page 25 of the compilation that it is a narrow way of looking at problem which is essentially a human problem and any a one acquainted with the working od the constitution of India, its aim and object for providing social and economic justice would outrightly reject such a contention.
3. State of H.P and others versus Sudeshkumari and others (Hon'ble High Court of Himachal Pradesh) (Letters Patent Appeal No. 194 and 195 of 2014) (18.11.2014) Page 53 para 8,9 and page 62 para15 therein of the compilation. Contractual employee entitled to Maternity Benefit Act.
4. Noorlum islam Education Trust versus Assistant Labour officer (a division bench judgment) 2008 117 FLR 533: (2008) 2 LLJ
774. Paragraph 6 and 7 of the judgment. Maternity Benefit Act is applicable to trust hospital.
Judgments on maintainability:
1. Andi mukta sadguru shree Muktajee vandas swami suvarna jayanti mahotsav trust versus Rudani 1989 (2) SCC 691 : AIR 1989 SC 1607 Paragraph 2, 16, 17, 19, 20, 21. more particularly: paragraph 19.
"(19.) The term "authority" used in Art. 226, in the context, must receive a liberal meaning Page 10 of 26 C/SCA/17485/2017 CAV JUDGMENT unlike the term in Art. 12. Art. 12 is relevant only for the purpose of enforcement of fundamental rights under Art. 32. Art. 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as nonfundamental rights. The words "Any person or authority" used in Art. 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."
2. 2003(10) SCC 733: AIR 2003 SC 4325 Federal Bank Limited versus sagar thomas: Relying upon paragraph 17,25,41. More particularly Paragraph 41 :
(41.) Such private companies would normally not be amenable to the writ jurisdiction under Art. 226 of the Constitution. But in certain circumstances a writ may issue to such private bodies or persons as there may be statutes which need to be complied with by all concerned including the private companies. For example, there are certain legislations like the Industrial Disputes Act, the Minimum Wages Act, the Factories Act or for maintaining proper environment say Air (Prevention and Control of Pollution) Act, 1981 or Water (Prevention and Control of Pollution) Act, 1974 etc. or statutes of the like nature which fasten certain duties and responsibilities statutorily upon such private bodies which they are bound to comply with. If they violate such a statutory provision a writ would certainly be issued for compliance of those provisions. For instance, if a private employer dispense with the service of its Page 11 of 26 C/SCA/17485/2017 CAV JUDGMENT employee in violation of the provisions contained under the Industrial Disputes Act, in innumerable cases the High Court interfered and have issued the writ to the private bodies and the companies in that regard. But the difficulty in issuing a writ may arise where there may not be any noncompliance or violation of any statutory provision by the private body. In that event a writ may not be issued at all. Other remedies, as may be available, may have to be resorted to.
3. 2005 (6) SCC 657 : AIR 2005 SC 3202: Binny Limited Versus V. Sadasivan Relying upon paragraph no. 32:
(32.) Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body which is not a State within the meaning of Art. 12 of the Constitution and such body is amenable to the jurisdiction under Art. 226 of the Constitution of India and the High Court under Art. 226 of the Constitution of India can exercise judicial review of the action challenged by a party. But there must be a public law element and it cannot be exercised to enforce purely private contracts entered into between the parties.
Alternative remedy:
1. AIR 1999 SC 22: Whirlpool corporation versus Registrar of Trade marks Relying upon paragraph 15 to 20
2. 1987 (4) SCC 525 : AIR 1987 SC 2186 :
Kuntesh Gupta Versus Management Of Hindu Kanya Mahavidyalaya, Sitapur (Uttar Pradesh.) Relying upon paragraph no. 12 3.1991 (2) GLR 1339: Balvantbhai Bhadabhai versus Dhanduka Nagar Panchayat
4. 1979 (2) GLR 678 : Dahyabhai Devjibhai Vasava versus Dy. Dev. Officer.
5. 1994 (1) GLR 57: (Division Bench) Page 12 of 26 C/SCA/17485/2017 CAV JUDGMENT 5.2 Additionally, some of the judgments have been relied upon to canvass the submissions that even if alternative remedy is not exhausted, it is open for the Court to entertain the petition under Article 226 of the Constitution of India. Following are such issues which have been raised and canvassed by the petitioner by way of written submissions :
"1. The Petitioners were terminated from the services within 25 minutes when the Petitioner No.1 intimated about her pregnancy. The Notice of termination dated 31.08.2017 did not mentioned any reasons and they were terminated. The Petitioners made representations on 07.09.2017 intimating that she is covered by the Maternity benefit act and therefore cannot be terminated/ dismissed from services in view of section 12 of the Maternity Benefit Act. However, the Respondent Trust refused to consider the same and again did not mention any reasons for termination in reply to the representation on 12.09.2017 also.
2. The Hon'ble Court issued notice vide order dated 22.09.2017 to the Respondent and the notice of this Hon'ble court was served on them on 23.09.2017 and thereafter they have come up with the frivolous story in their reply dated 28.09.2017 before this Hon'ble Court for the first time that the Petitioners are being terminated from the services due to misconduct (page25). All the letters and documents produced therein are complete after thought after the receipt of the notice by this Hon'ble Court. All the documents are contentions raised in reply are after thought as:
All the Letters attached to the Reply are typed letters and originals are not produced till date.
In total they have attached 21 complaints Page 13 of 26 C/SCA/17485/2017 CAV JUDGMENT all typed copies and originals are deliberately not produced. If the complaints are considered to be true for a moment, then the First complaint is dated 12.09.2016 (Page 33) and thereafter 20 other complaints/ letters (typed letters only) produced by the Respondents. It is surprising that Respondent sat over 21 complaints for 12 months without even issuing single show cause notice/ letter to the petitioners but it was only on issuance of notice of this Hon'ble Court they have filed the reply and annexed the typed letters indicating misconduct more particularly to drag the case in proviso of Section 12 of the Maternity Benefit Act. Further The Respondent had neither mentioned about misconduct in termination letter nor in the reply to their representation. This proves that all the letters are fabricated and there were no such complaints and it was only after the issuance of notice by this Hon'ble Court, this letters / complaints were asked to be prepared by the other employees working in the trust. Even if allegations as alleged in complaints are accepted only for the sake of arguments, then also it clearly appears that incidents mentioned therein are trivial in nature which does not amount to misconduct and are of the nature that every institute employees usually faces while working together.
Further the Complaints attached therein are written by the employees working in the Trust who are still contractual employees.
Leave Rules: Leave Rules of the Respondent Trust produced at Annexure I (relevant page 24(C) indicates that even the contractual employees are entitled to maternity leave.
The Respondent gets huge amount of funds from the government. Annexure K (relevant Page 24H) (Rs. 62,09,140 from District Blindness Control Society, Rs.3,36,000 from Governor of Gujarat, Rs. 2,90,000 from Vision 2020 Right to sight India Programmes, New Delhi). The Respondent doing a public functions and is also Page 14 of 26 C/SCA/17485/2017 CAV JUDGMENT getting public funds from various donors and huge funds from donors."
5.3 Learned advocate for the petitioner has then further contended that while terminating the services, no reasons are assigned as to under which circumstance, upon receipt of email from the petitioner, within 20 minutes the action of termination is inflicted upon and, therefore, there appears to be a clear example of predecisive approach by the authority. So much so that representation which has been made in response to the discontinuance, such representation dated 17.9.2017 has also not been considered. As a result of this, left with no other alternate, the petitioner has to approach this Court on such justifiable reasons and ultimately, after submitting these contentions, learned advocate has requested the Court to grant the relief as prayed for in the petition.
6. To meet with the stand taken by the learned advocate representing the petitioner, Mr.Ramkrishna B. Dave, learned advocate appearing for the respondent No.1 has raised a contention in the form of preliminary issue that this petition is brought which is essentially arising out of purely private service contract and for enforcement of such contract of service, extraordinary jurisdiction may not be proper to examine the issues of fact which are entangled in the present petition. Mr.Dave, learned advocate, has further contended that the petitioners, Page 15 of 26 C/SCA/17485/2017 CAV JUDGMENT on the contrary, had made an attempt to mislead the Hon'ble Court by suppressing the material facts on record which has led the hospital authorities to terminate the services by resorting to terms of the contract It is just with a view to create sympathetic atmosphere the petitioner No.1 has come out with her pregnancy issue and for the first time, a request is made to consider and extend the benefit. Mr.Dave, learned advocate, submitted that particular request which has been made was premature since on 31.8.2017 the petitioner No.1 has informed the authorities that on 15.10.2017 she has shown her inclination to go on maternity leave. Now, there was no justified reason to make such request much prior in advance. Hence, this is nothing but only with a view to create sympathy to suppress the real reason behind termination of service. Mr.Dave, learned advocate, has further contended that petitioners were totally undisciplined, were noncooperative with colleagues and other staff of the hospital and in the month of April,2017, the petitioner No.1 had crossed all limits of discipline and started quarreling with the staff members and was usually coming late in the hospital. On the contrary, Dr.Priyanka Shah, who was working as fellow doctor, was humiliated and said doctor had reported this incident to the management. Even one of the senior Dr.Nalin had also asked them about the incident in question. However, the petitioner No.1 had not shown any cooperation to explain as to under which circumstance she had humiliated said Dr.Priyanka Shah. On the contrary, Page 16 of 26 C/SCA/17485/2017 CAV JUDGMENT the attempts were made to persuade the petitioners to improve the level. But no improvement has been shown which has resulted into once again informing the petitioners in the month of June,2017 to behave properly. On the contrary, Mr.Dave, learned advocate, has stated that on account of the deliberate conduct on the part of these petitioners, the hospital people were in a helpless situation and repeated complaints and representatives have been received by the management on account of the petitioners' conduct. Even in the month of July also and August, as well, some episodes have taken place in which the petitioner No.1 had aggressively misbehaved which fact had been taken note of by the management and the management, in any case, had to run the hospital in a disciplined manner in the larger interest of patients and cannot allow indiscipline in the hospital especially when the work in the hospital was of prime importance. Mr.Dave, learned advocate, has further pointed out from the affidavitinreply that a letter dated 27.3.2017 was received from Swami Vivekanand Retina Care Center, Surat. As a result of this, with a view to take precautionary measure, the petitioners were specifically informed. On the contrary, on account of the conduct of the petitioners, more particularly petitioner No.1, serious issues had arisen in the hospital and it was almost impossible for the petitioners to handle the situation. Mr.Dave, learned advocate, has further contended that on the contrary to hide all these things which is happening, the petitioner No.1 has taken the shelter of her Page 17 of 26 C/SCA/17485/2017 CAV JUDGMENT pregnancy so as to see that not only the petitioner No.1 can seek some protection but, under her guise even the petitioner No.2 can also get some benefit from the circumstance which ultimately may not permit the respondent trust to take any action. Otherwise, there was no other reason to give intimation prior to two months in advance, that too when 15.10.2017 being the holiday. This is nothing but a device adopted by petitioner No.1 to protect their services under the guise of maternity issue.
6.1 Mr.Dave, learned advocate, has contended that this appointment of the petitioners was purely on a contract basis and condition No.2 of the contract of appointment may not permit the petitioners to seek any benefit and they are rightly relieved by resorting to clause contained under the contract of service. The petitioners have been relieved by giving benefit of one month's notice of termination and by virtue of clause (16) of contract of appointment, the respondents are authorized to terminate and put to an end to the services of the petitioners. By drawing attention to some of the communications which are attached with the affidavitinreply filed on 28.9.2017, a contention is raised by Mr.Dave, learned advocate, that in a writ jurisdiction, it would not be open for the petitioner to enforce and seek any adjudication about the terms of the contract. The petition is containing highly disputed questions of fact and since the respondents are not the authority under Article 12 of the Constitution of India, the Page 18 of 26 C/SCA/17485/2017 CAV JUDGMENT petitioner may not be allowed to ventilate the grievance as has been found out. Mr.Dave, learned advocate, has further contended that on the contrary, news have come forward that petitioner No.2 is going to open his dispensary and has requested that in such a situation, the writ jurisdiction may not be allowed to be invoked. By filing affidavitinsurrejoinder, Mr.Dave, learned advocate, has drawn the attention of this Court to highlight the service tenure and the clarity of work which the petitioners have undertaken in the hospital. Para.3, 4 and 5 of affidavit since are material, the same are taken note of which are reproduced hereinafter:
"3. I say and submit that the most important thing is out of the 95 retina detachment operations performed by Dr.Ira between August 16 to Sept.'17 - there are 31 re surgeries. The failure rate is 32% which is unacceptably high. It should be close to 5% in today's era. This disproportionately high failure rate brings down the image of the organization in the eyes of the outsiders and hence we had to give her the notice of termination. Further I say and submit that the respondent has not considered the first six months of her work here when she was fresh and the respondent had to invite outside consultants to train her meaning thereby she was poor at her work from day one itself and did not improve even after seniors supporting her initially.,
4. I say and submit that the respondent did not give anything in writing so that the fresh doctor's career is not harmed. There were several discussions held with them and twice it was done in presence of secretary of the trust board. In fact, the secretary had organized a Page 19 of 26 C/SCA/17485/2017 CAV JUDGMENT dinner at his place which has not been done in six years. This was the first time he had organized dinner of all the doctors because there were issues among doctors and things were not improving in spite of the superintendent talking to the doctors.
5. I say and submit that the respondent has video footage of almost 40 days duration where Dr.Kaivan is not following the discipline it is not just an occasional thing. Dr.Ira is also wasting time to a great extent that can be seen from the video footage. I say and submit that it was impossible to continue with the doctor who does not work in spite of the patients waiting outside and she is wasting time inside."
7. In view of aforesaid rival contentions raised by both the sides, it appears to this Court that some of the issues raised in the present proceedings are not possible to be unnoticed before taking final decision in the present proceedings.
(1) The order of appointment of petitioner which is reflecting on page10 appears to be purely on contract based appointment and the said order reflects certain conditions. One of such conditions is Condition No.10 which indicates the issue related to leave. The overall reading of the appointment order clearly indicates that it is purely a private contract of service and enforcement thereof or breach of any of the conditions or noncompliance can entail consequences which can be adjudicated by a forum other than extraordinary jurisdiction.
(2) It is also appearing that the order of Page 20 of 26 C/SCA/17485/2017 CAV JUDGMENT discontinuance has got some preface. It is not appearing to be so simply as is being projected that when petitioner No.1 sought maternity leave, she was abruptly discontinued. The circumstances in detail have been brought to the notice of this Court in an affidavitinreply submitted which prima facie appearing to be not so simple, as has been conveyed. It is not appearing that just with a view to deprive the maternity leave to the petitioner No.1, this action sought to be initiated. Resultantly, these disputed circumstances which are prefacing, the order of discontinuance requires an element of inquiry and adjudication which is not possible in extraordinary jurisdiction of this Court. Ofcourse, the Court can examine the arbitrariness or discrimination but, there are selfimposed limitations of exercise of such jurisdiction.
(3) This opinion which is emerging is for the reason that a specific stand has been taken by the respondent authority in the affidavitinreply filed on behalf of respondent reflecting on Page25 and Para.5 are the circumstances which are appearing to be prior to discontinuance. Hence, the same are reproduced hereinafter :
8. In the background of aforesaid circumstances, if the terms and conditions of the employment are to be viewed, this is not a case in which simply with a view to deprive the petitioner No.1 from the benefit of maternity leave, an order of discontinuance is Page 21 of 26 C/SCA/17485/2017 CAV JUDGMENT passed. So, in substance, even if the circumstances are not taken on its face value then also, it is not a case of arbitrary discontinuance. So, ultimately for enforcement of right of private service contract, appropriate forum is available to the petitioner which is other than the jurisdiction of this Court.
9. Additionally, the respondent authority is a private trust and simply because it is delivering and imparting medical services, it cannot be branded as akin to Article 12 authority and, therefore, this is another reason not to encourage such challenge before this Court in extraordinary equitable jurisdiction. Even in a case where the Government employees were upon reconstitution of private entity are dealt with and discontinued, the Apex Court has upheld the decision of the High Court not to entertain a writ petition. A detailed analysis has been undertaken by the Apex Court in case of Jatya Pal Singh & Ors. v. Union of India & Ors., reported in (2013) 6 SCC 452 and by analyzing the entire case law on an issue of Article 12 authority, the writ petitions were to be held not maintainable. Para. 50, 51 and 57 are the relevant observations made by the Apex Court after discussing at length, the entire case law. Since the same are found to be relevant are quoted hereinafter :
"50. Dr. Chauhan had also relied on Binny Ltd. (supra) wherein this Court reiterated the observations made by this Court in Dwarkanath v. Incometax Officer, Special Circle, D0ward, Page 22 of 26 C/SCA/17485/2017 CAV JUDGMENT Kanpur & Anr. [19], it was observed that :
"It is difficult to draw a line between the public functions and private functions when it is being discharged by a purely private authority. A body is performing a "public function" when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest."
51. This Court also quoted with approval the Commentary on Judicial Review of Administrative Action (Fifth Edn.) by de Smith, Woolf & Jowell in Chapter 3 para 0.24 therein it has been stated as follows :
"A body is performing a "public function"
when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest.
Public functions need not be the exclusive domain of the state. Charities, self regulatory organizations and other nominally private institutions (such as universities, the Stock Exchange, Lloyd's of London, churches) may in reality also perform some types of public function. As Sir John Donaldson M.R. urged, it is important for the courts to "recognize the realities of executive power" and not allow "their vision to be clouded by the subtlety and sometimes complexity of the way in which it can be exerted." Nongovernmental bodies such as these are just as capable of Page 23 of 26 C/SCA/17485/2017 CAV JUDGMENT abusing their powers as is government."
57. A perusal of the aforesaid documents, however, would show that VSNL had merely promised not to retrench any employee who had come from OCS for a period of two years from 13th February, 2002. Such a condition, in our opinion, would not clothe the same with the characteristic of a public duty which the employer was bound to perform. The employees had individual contacts with the employer. In case the employer is actually in breach of the contract, the appellants are at liberty to approach the appropriate forum to enforce their rights."
10. Yet another circumstance which has constrained the Court not to exercise extraordinary jurisdiction is that under the guise of attribution to the respondent trust that with a view to deprive the benefit of maternity leave to petitioner No.1, abrupt discontinuance has taken place of both the petitioners. Now, during the course of hearing, learned advocate, under the instructions, has restricted this petition qua petitioner No.1 alone. Even on earlier occasion when this Court passed an order on 28.9.2017, it has been observed in Para.4.6 that prima facie the material on record to indicate that discontinuance of services of the petitioner is independent of her pregnancy and the claim can be compensated in terms of money. As a result of that, no interim protection was given. So, the sum and substance is that the present controversy which has been erupted in the petition is that discontinuance is the offspring of a circumstance which has no Page 24 of 26 C/SCA/17485/2017 CAV JUDGMENT nexus with maternity leave issued of petitioner No.1. Hence, these issues which have preceded the discontinuance requires proper adjudication at length and this disputed version cannot form a subject matter of exercise of extraordinary jurisdiction.
11. No doubt, an attempt is made by learned advocate by pointing out and raising several issues but, there is no answer to this entertainability of petition so cogently given by the petitioner which would permit this Court to exercise extraordinary jurisdiction and, therefore, it appears to this Court that the petition contains disputed questions of fact and is not a case of discontinuance to deprive the petitioner No.1 from the benefit of maternity leave. It is also reflecting that a private trust, whether registered or not, is also not cogently and sufficiently asserted by the petitioner and as such, simply because the trust is running the hospital, cannot be termed as an authority akin to Article 12 authority as defined under the Constitution of India.
12. It is also emerging from the record that even if the maternity leave benefit is not extended and the same was the sole base of discontinuance of petitioner No.1, appropriate forum, upon approach by petitioner No.1, can examine and arrive at a conclusion and can set aside the impugned action and grant a consequential relief. The entire background of this fact and the submissions made by both the sides will clearly indicate that it is difficult for Page 25 of 26 C/SCA/17485/2017 CAV JUDGMENT this Court to accept the grievance sitting in a jurisdiction under Article 226 of the Constitution of India. The judgments which have been relied upon by learned advocate for the petitioner of various Courts are appearing to have been delivered in a different contextual background of fact and this Court is of the opinion that if there is a slight change or an additional circumstance then, it would make a world of difference in applying the precedent. Each case governs by its own factual matrix and, therefore, proposition of law, as has been pointed out and canvassed by the petitioner, is not possible to be applied by this Court. The overall consideration of material on record and the submissions made by learned advocates for the respective parties, would lead this Court to believe that this is not a fit case in which extraordinary jurisdiction is possible to be exercised, more particularly when equally efficacious competent remedy is available for enforcement of a breach of contract of private service. Hence, the present petition being devoid of merits, does not deserve to be entertained. The present petition is dismissed accordingly with no order as to costs. Rule is discharged.
(A.J. SHASTRI, J) V.J. SATWARA Page 26 of 26