Allahabad High Court
Dr. S.K.C. Charan, Incharge Physio ... vs Sri Ashwin M. Singh, Assistant Director ... on 13 December, 2006
Author: Amitava Lala
Bench: Amitava Lala, V.C. Misra
JUDGMENT Amitava Lala, J.
1. This writ petition has been moved to obtain writ in the nature of certiorari quashing the order dated 8th September, 2006 by which service of the petitioner was terminated and further order directing him to vacate the residential premises along with other incidental prayers.
2. The respondent-institution is a Christian Minority institution running a Hospital and Medical College funded by an agency domiciled in the U.S.A. called A.C.C. Corporation. Initially the hospital was managed by the Bishop Rev. Nimrod Christian and in September 2005 the management was taken over by the aforesaid Corporation through a contract with the Bishop. The petitioner was appointed as Physiotherapist therein in the year 1987 holding the position of Incharge of Physiotherapy department of the Hospital.
3. According to the petitioner due to mis-management of the Corporation in running the institution and infringing the right of the hospital and college staff, the petitioner protested and as a result he became victim of the circumstances. By the non speaking order impugned hereunder, the petitioner's service was terminated.
4. Before entering into the factual controversy we have called upon the petitioner to establish how the present writ is maintainable since the respondent-institution is neither the State nor other authority under Article 12 of the Constitution of India.
5. In turn, learned Counsel appearing for the petitioner relied upon the various judgments to establish that the writ lies even against the private body if it discharges public duty. Therefore we have to ascertain what is the nature of public duty herein. According to us nature and character of the duty of a private body establishes whether by such it discharges public or private duty. A part of the duty of a private body seems to be public duty when other is not. All the duties of a private body may not be discharge of public duty. The respondent being a Christian Minority Organization is imparting medical service through the hospital and college to the people. Therefore, in that way it may discharge public duty to the third parties but that does not necessary mean service contract between the management and the employee therein will be treated as public duty. Institute is an autonomous body in that way. For an example M/s Calcutta Electric Supply Corporation Ltd. being a company discharging duty of supply of electricity to the consumers, therefore, in that way such work is in the nature of rendering public duty and writ lies against it as held'' in 1985 (II) CHN 196 Waldorf Restaurant and Ors. v. The State of West Bengal and Ors. But same principle cannot be applicable in respect of employer-employee relationship within the Company. Therefore, all the works of a private body cannot be regarded as discharge of public duty.
6. In The Amhedabad St. Xavier's College Society and Anr. v. State of Gujarat and Anr. Nine Judges Bench of the Supreme Court held that autonomy in administration means right to administer effectively and to manage and conduct the affairs of the institutions. The distinction is between a restriction on the right of administration and regulation prescribing the manner of administration. The right of administration is day-to-day administration. The choice in the personnel of management is the part of the administration.
7. Therefore, according to us, internal management of such institution has got nothing to do with regard to imparting service by such institution or act contrary to concept of secularism or engage in activities conducive to the interest of the minority or to the requirements of the teachers and students. Contractual service of an employee under such institution has no manner of application in this regard. It is true to say not only in the Ahmedabad St.Xavier's College Society and Anr. (supra) but also the All Saints High School etc.etc. v. The Government of Andhra Pradesh and Ors. etc.etc. it was held by the Supreme Court that unlike Article 19 the right conferred on the minorities is absolute, unfettered and unconditional but this does not mean that this right gives a free licence for maladministration so as to avowed object of the Article, namely, to advance excellence and perfection in the field of education and the State can take regulatory measures. But the same is the matter between State and institution which has got nothing to do in respect of the employer and employee relationship within the institution. The missing link of the argument is that as because a minority institution running hospital and college and discharging public duty in that way, contractual service of the petitioner/employee and the institution will also be governed by the same principle.
8. In Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V.R. Rudani and Ors. it was held by the Supreme Court that 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. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Under Article 226, writ 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 powers 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. 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. In the said judgment the dispute arose as regards terminal benefits and arrears of salary to be paid by the management as per the relevant ordinance to pay compensation when the college is closed therefore, the question was whether payment of such nature by the even by the private is a discharge of statutory duty or not. Supreme Court has rightly held that the same can be done irrespective of the fact that the management was not a statutory body. Therefore, such factual analysis cannot be available in the present case. In the instant case petitioner's claim is for quashing the order of termination and order for vacating the residential premises. In fact the Supreme Court discussed two other judgments of the Supreme Court being reported in 1976 (2) SCC 58 Executive Committee of Vaish Degree College, Shamli and Ors. v. Lakshmi Narain and Ors. and Dipak Kumar Biswas v. Director of Public Instruction and Ors. the question arose therein that when the college is managed by a Registrar Cooperative Society whether reinstatement could be ordered if the dismissal is in violation of the statutory obligation. The court refused to accept the contention and observed that the management of the college was not a statutory body since it was not created under statute. It was emphasized that an institution of which adopts certain provision will become a statutory body and dismissal cannot enforce personal service against the non statutory body. Again in the other subsequent case of dismissed lecturer of the private college sought for reinstatement of service. There the Court refused to grant relief although it was found that the dismissal was wrongful. It appears to be preponderant judicial opinion because of common with a service contract cannot specifically enforced.
9. Neither of the referred judgment in the cited judgment nor the judgment itself can come to the rescue of the petitioner in the instant case in any manner whatsoever. On the other hand the analysis of the judgment squarely speaks that no relief can be granted to the petitioner under the writ jurisdiction of the High Court since the employee cannot enforce a contract of personal service against a non statutory body.
10. Further in such judgment question of terminal benefit arose but not the question of specific performance of contractual service nor declaration of continuation of such service. But here basically this is the question by an large.
11. In T.M.A. Pai Foundation and Ors. v. State of Karnntaka and Ors. eleven judges Bench formulated certain points in fact to reconsider the decision of the Supreme Court in (Supra) and also the case of Unnikrishnan P.J. and Ors. v. State of A.P. and Ors. regarding right of the minority institution including administration of the student and imparting education vis-a-vis right of administration of the non minority student. In the said case very important points arose as follows:
5. (c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and regulation of fees etc. would interfere with the right of administration of minorities?
A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as conditions of affiliation to a university or board have to be complied with, but in the matter of day-to-day management, like appointment of staff, teaching and non-teaching and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for selection of teaching staff and for taking disciplinary action has to be evolved by the management itself. For redressing the grievances of such employees who are subjected to punishment or termination from service, a mechanism will have to be evolved and in our opinion, appropriate tribunals could be constituted, and till then, such tribunal could be presided over by a judicial officer of the rank of District Judge. The State or other controlling authorities, however, can always prescribe the minimum qualifications, salaries, experience and other conditions bearing on the merit of an individual for being appointed as a teacher of an educational institution.
Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State without interfering with overall administrative control of management over the staff, government/university representative can be associated with the Selection Committee and the guidelines for selection can be laid down. In regard to unaided minority educational institutions such regulations, which will ensure a check over unfair practices and general welfare of teachers could be framed.
12. In Binny Ltd. and Anr. v. V. Sadasivan and Ors. question arose about the maintainability of the writ against private parties. It was held that the jurisdiction conferred on the High Court under Article 226 is very wide. However, it is an accepted principle that this is a public law remedy and it is available against a body or person performing a public law function. The writ of mandamus lies to secure the performance of the public or a statutory duty. The prerogative remedy of mandamus as long provided the means of enforcing the performance of public duties by public authorities. A distinction had always been drawn between the public duty enforceable by mandamus that are statutory and duties arising merely from contract. Contractual duties are enforceable duties as matters of private law by the ordinary contractual remedies, such as damages, injunction, specific performance and declaration. They are not enforceable by mandamus. Judicial review is designed to prevent the cases of abuse of power and neglect of duty by public authorities. However, under our Constitution, Article 226 is couched in such a way that a writ of mandamus could be issued even against a private authority. However, such private authority must be discharging a public function and the decision sought to corrected or enforced. Thus, it can be seen that a writ of mandamus for 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 public/statutory authorities to discharge their duties and to act within their bounds. If the private body is discharging a public function and denial of any right is in connection with the public duty imposed on such body, the public law remedy can be imposed. There cannot any general definition of public authority or public action. The facts of each case decide the point.
13. The Supreme Court in the matter of Binny Ltd. and Anr. (Supra) held that the decision of the employer to terminate the services of their employees cannot be said to have an element of public duty. The cases are purely governed by the contract of employment entered into between the employees and the employer. It was not appropriate to construe those contract as being opposed to public policy under Section 23, Contract Act, 1872.
14. The Supreme Court further held that writ of mandamus can be exercised against a private body but there must be a public law element and it cannot be exercised to enforce purely private contract entered into between the parties. Ultimately the Supreme Court held that it was unable to perceive any public element in the termination of any employee and the remedy available to the respondent is to seek redressal of their grievance in Civil law or under the Labour law under the Act especially in view of the disputed question involved as regards status of employee and other matters. The High Court has rightly held that there is no public element and there is no remedy upon to the appellant to seek appropriate action other than judicial review taken by the respondent company.
15. From the aforesaid analysis it is crystal clear that the public law remedy is not dependent whether it has been discharged by private body or not but whether such body discharges the public duty which is amenable under the writ jurisdiction or not. In respect of aforesaid contractual service by which the petitioner was terminated by the respondent has no force of public law. Therefore, the writ petition stands dismissed on the ground of maintainability. No order is passed as to costs.
16. However, dismissal of the writ petition will not debar the petitioner from seeking redressal of his grievance before any other appropriate forum, if so advised.
V.C. Misra, J.
17. I agree.