Madras High Court
S.Sendhilkumar vs Shri Angalamman College Of on 11 November, 2008
Author: S.Nagamuthu
Bench: S.Nagamuthu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11/11/2008 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.P(MD)Nos.6988 to 6991 of 2008 and M.P(MD).Nos.1 to 3 of 2008 in respective W.Ps. S.Sendhilkumar ... Petitioner in W.P.(MD).No.6988 of 2008 S.Kumar ... Petitioner in W.P.(MD).No.6989 of 2008 S.Gopi ... Petitioner in W.P.(MD).No.6990 of 2008 T.S.Raja ... Petitioner in W.P.(MD).No.6991 of 2008 Vs. Shri Angalamman College of Engineering and Technology Represented by its Principal, Siruganoor, Lalgudi Taluk, Tiruchirappalli 621 105, Tiruchirappalli District. ... Respondent in all WPs. COMMON PRAYER Writ Petitions filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, calling for the records relating to the impugned order of the respondent dated 21.04.2008 and quash the same and consequently directing the respondent to reinstate the petitioner with continuity of service with all consequential benefits. !For Petitioners ... Mr.G.R.Swaminathan ^For Respondent ... Mrs.Anandhavalli ******** :COMMON ORDER
***************** "Whether writ remedy is available for a dismissed non-teaching staff of a private unaided college?" is the question which has arisen for consideration.
2. The petitioners are dismissed non-teaching staff from the respondent College. Admittedly, the respondent college is an unaided college run by a private trust. All the petitioners were dismissed from service with effect from 21.04.2008. The said dismissal orders are under challenge in these Writ Petitions.
3. At the outset, the learned counsel appearing for the respondent would make a preliminary objection regarding the maintainability of these Writ Petitions. According to her, since the respondent College is a private college, which does not get any aid from the Government, and since the petitioners are not performing any public duty in the College, the Writ Petitions are not maintainable against the College. She would further submit that the remedy available for the petitioners lies elsewhere and not under Article 226 of the Constitution of India.
4. But the learned counsel for the petitioner would resist the said objection. He would submit that though it is true that the respondent College is an unaided private college, still there is an element of performance of public duty by the college, it is amenable to Article 226 of the Constitution of India. He would rely on a judgment of the Hon'ble Supreme Court in K.Krishnamacharyulu v. Sri Venkateswara Hindu College of Engineering reported in 1997(3) SCC 571. The learned counsel appearing for the respondent would, however, rely on an earlier judgment of the Hon'ble Supreme Court in Andi Mukta S.M.V.S.S.J.M.S. Trust v. V.R.Rudani reported in 1989(2) SCC 691, to say that the respondent College is not amenable to Article 226 of the Constitution of India. She would further submit that the judgment relied on by the petitioner in K.Krishnamacharyulu's case does not help the petitioner in any manner. She would try to distinguish the said judgment by pointing out that a Writ petition relating to a teaching staff can be maintained under Article 226 of the Constitution of India, since the nature of job of the teaching staff is a public function, whereas the non-teaching staff are not doing any such public function and, therefore, the said judgment is not applicable to the facts of the present case.
5. I have considered the rival submissions.
6. In Andi Mukta Sadguru's case, the Hon'ble Supreme Court has held as follows:
"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". The term "authority" used in the context, must receive a liberal meaning unlike the term in Article 12 which is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. 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 owned 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."
(Emphasis supplied).
7. A reading of the entire judgment of the Hon'ble Supreme Court in the above case, more particularly, the portion extracted above would make one to understand that the power of judicial review under Article 226 can be extended even against any body provided, the said body performs public duty.
8. Now, the question is whether a private unaided College performs such a public duty or not. The answer is readily available in K.Krishnamacharyulu's case cited by the learned counsel appearing for the petitioner reported in 1997(3) SCC 571. In paragraph-4 of the said judgment, the Hon'ble Supreme Court has held as follows:
".....................................
The question is when there are no statutory rules issued in that behalf, and the institution, at the relevant time, being not in receipt of any grants- in-aid; whether the writ petition under Article 226 of the Constitution is not maintainable? In view of the long line of decisions of this Court holding that when there is an interest created by the Government in an institution to impart education, which is a fundamental right of the citizens, the teachers who impart the education get an element of public interest in the performance of their duties. As a consequence, the element of public interest requires regulation of the conditions of service of those employees on a par with government employees. ........................
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The private institutions cater to the need of providing educational opportunities. The teacher duly appointed to a post in the private institution also is entitled to seek enforcement of the orders 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 Disputes Act. When an element of public interest is created and the institution, is also entitled to avail of the remedy provided under Article 226, the jurisdiction part is very wide. It would be a 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." (Emphasis supplied)
9. Admittedly, the respondent College, as referred to in the said judgment, is also an unaided private college. While interpreting the functions of such College, the Hon'ble Supreme Court in the said judgment has held that the private institutions cater to the need of providing educational opportunities and, therefore, such institutions do public duties.
10. The contention of the learned counsel appearing for the respondent is that, of course, it is true that in the said case, the Hon'ble Supreme Court has held that the teachers working in private colleges can enforce their right under Article 226 of the Constitution of India, the reason being that they are imparting education to the students, which is a public duty, whereas the non-teaching staff do not impart education to the students and, therefore, there is no public duty on their part. Though this contention appears to be very attractive, I am not persuaded by the same. While reading the said judgment, one should not try to interpret the same. The law made by the Hon'ble Supreme Court binds this Court and it is none of the functions of this Court to interpret the said judgment, except understanding the judgment in letter and spirit and to bind itself to the dictum laid down therein. Such understanding of the said judgment would keep things beyond pale of any doubt that the Hon'ble Supreme Court has held that the entire educational institution, as one unit, is imparting education to the children and, therefore, the functions of such institutions amount to public duty. Here, for imparting education, even non- teaching staff in the College are also doing some job. In the absence of non- teaching staff, the institution cannot run. Therefore, as a whole, the institution should be held to be as one unit, which discharges its public duty of imparting education to the students. Therefore, there cannot be any distinction between teaching and non-teaching staff, while applying Article 226 of the Constitution of India. The petitioners in K.Krishnamacharyulu's case were also non-teaching staff. The Hon'ble Supreme Court has held that even in respect of non-teaching staff, the writ remedy is available to them. For all the above reasons, I hold that the present Writ Petition is maintainable against the respondent.
11. Nextly, this Court has to see, whether on merits, the impugned orders of termination of these petitioners are maintainable. The contention of the learned counsel for the petitioners is that no opportunity whatsoever was given to them to defend the disciplinary proceeding and thus, the orders came to be passed in gross violation of principles of natural justice. Therefore, according to the learned counsel, the impugned orders are liable to be set aside.
12. Per contra, the learned counsel appearing for the respondent would submit that charge memos were issued to the petitioners, calling upon them to submit their explanations, but the petitioners did not choose to submit their explanations in time. Since there was no defence taken, according to the learned counsel, there was no occasion for the respondent to hold further enquiry and then, to pass final order. Since the petitioners themselves did not come forward with any defence, according to the learned counsel, the Management thought it fit to dispense with the oral enquiry and to pass final order.
13. In my considered opinion, the procedure adopted by the respondent is not correct. It is not always obligatory on the part of the delinquent to submit his explanation. Even in the absence of such explanation, an enquiry is to be held into the charges. It is upto the employee to defend himself during enquiry. Even without submitting an explanation, an employee may defend effectively during the enquiry. Therefore, for non-submission of explanation, the authority cannot dispense with the oral enquiry. The respondent should have held oral enquiry, afforded sufficient opportunity, and then to have passed final order. Thus, in the instant case, there is clear violation of principles of natural justice and on that ground alone, the impugned orders are liable to be set aside.
14. The learned counsel for the respondent would lastly submit that assuming, without admitting that writ remedy is available to the petitioners, since they have got alternative and efficacious remedy of approaching the Labour Court, this Writ Petition should not be entertained. Of course, it is true that in general, when there is an alternative and efficacious remedy available for a party, normally this Court would not entertain a Writ Petition. But there cannot be universal rejection of Writ Petitions on this ground, as there are exceptions to the said rule, such as, violation of principles of natural justice, violation of fundamental rights, etc. In this case, as I have pointed out earlier, the impugned orders have been passed in gross violation of principles of natural justice and, therefore, the Writ Petitions can be maintained before this Court and they are sustainable under law.
15. For all the above reasons, I hold that the impugned orders are liable to be set aside and the matters require to be remitted back to the respondent for fresh orders. At this juncture, the learned counsel for the petitioners agreed that the petitioners would not insist for reinstatement, until fresh final orders are passed in these matters and that the petitioners would not insist for backwages for the interregnum period, in the event of the petitioners not being dismissed or terminated ultimately from service. The said statement is also recorded.
16. In view of the above, the following order is passed:
(i) All the Writ Petitions are allowed, and the impugned orders are set aside.
(ii) The competent authority of the college is at liberty to hold fresh enquiry, afford sufficient opportunity and then to pass final orders in these matters.
(iii) The competent authority of the College shall conclude the disciplinary proceedings against all the petitioners within a period of two months and pass final orders. The petitioners are directed to co-operate for disposal of the proceedings within the stipulated time. If the petitioners fail to avail of the opportunity afforded, the competent authority of the College may proceed further in accordance with law and pass final orders.
No costs. Consequently, the connected miscellaneous petitions are closed.
SML