Calcutta High Court (Appellete Side)
Srikanta Maity vs The State Of West Bengal & Ors on 27 August, 2018
Author: Arindam Sinha
Bench: Arindam Sinha
1
27.08.2018
[12]
Suman
Ct. 04
WP 1407 (W) of 2018
Srikanta Maity
Vs.
The State of West Bengal & Ors.
Mr. Saibal Mukherjee
...for the petitioner
Mr. Soumya Majumder
Mr. Biswaroop Bhattacharya
Mr. Uttam Sharma
...for respondent nos. 5 & 6
Mr. Tapan Kumar Mukherjee, ld. AGP Mr. Dipankar Dasgupta ...for State Respondents Petitioner served as Graduate Senior Laboratory Instructor in MCKV Institute of Engineering. He has moved this Court for issuance of, inter alia, writ of Mandamus to compel said Institute to continue with his service till he achieves age 62 years and Certiorari to quash letter dated 24th October, 2017 of prior intimation that he would achieve age of superannuation on 31st January, 2018. At the outset Mr. Majumder, learned advocate appearing on behalf of the Institute relied on three judgments of Supreme Court in raising point of maintainability. The judgments 2 are in - (i) Dipak Kumar Biswas versus Director of Public Instruction reported in (1987) 2 Supreme Court Cases 252;
(ii) Satimbla Sharma versus St. Paul's Senior Secondary School and others reported in (2011) 13 Supreme Court Cases 760; and (iii) K. K. Saksena versus International Commission on Irrigation and Drainage reported in (2015) 4 Supreme Court Cases 670. Mr. Mukherjee, learned advocate appears on behalf of petitioner. On earlier occasion he had relied on factual aspects which are not being gone into since it is point of maintainability that must first be adjudicated. In answering point of maintainability raised, Mr. Mukherjee draws attention to disclosure in his client's affidavit-in-reply being letter dated 22nd April, 2013 issued by Government of India, Ministry of Human Resource Development, Department of Higher Education from which he points out, the institution received Rs.9 lakhs as Central grant which also entitled it to receive a percentage thereof as State grant. He also refers to another disclosure in the affidavit, appearing at pages 26 to 28, from which he demonstrates two members in Governing Body of the Institute to be nominees of State Government and two, nominees of All India Council for Technical Education (AICTE)/University Grants Commission (UGC). He submits, on facts it must be held that 3 Centre and State have deep and pervasive control over the Institute, it being one that imparts education, a public function. He relies on several decisions, the first being of Supreme Court in i) Anandi Mukta Sadguru Shree Mukta Jeevandasswami Suvarna Jaya versus V.R. Rudani & Ors. reported in AIR 1989 SC 1607. He relies on following passage extracted below:
"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 under Art. 32. Article 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 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 4 means the duty is imposed. If a positive obligation exists mandamus cannot be denied.";
(ii) Judgment of Supreme Court in Civil Appeal no. 14553 of 2015 (Dr. Janet Jeyapaul versus SRM University & Ors.) from which following passage is extracted.
"22. This we say for the reasons that firstly, respondent no. 1 is engaged in imparting education in higher studies to students at large. Secondly, it is discharging "public function" by way of imparting education. Thirdly, it is notified as a "Deemed University" by the Central Government under Section 3 of the UGC Act. Fourthly, being a Deemed University, all the provisions of the UGC Act are made applicable to respondent no. 1, which inter alia provides for effective discharge of the public function - namely education for the benefit of public. Fifthly, once respondent No. 1 is declared as Deemed University" whose all functions and activities are governed by the UGC Act, alike other universities then it is an "authority" within the meaning of Article 12 of the Constitution. Lastly, once it is held to be an "authority" as provided in Article 12 then as a 5 necessary consequence, it becomes amenable to writ jurisdiction of High Court under Article 226 of the Constitution.";
(iii) Order dated 6th January, 2010 of a learned single Judge of Madras High Court in W.P. 5843 of 2001 (P. Jeyachandran vs. The Director of Technical Education), to passage reproduced below:
"53. When disciplinary action is taken for imposition of any penalty, which may even result in deprivation of employment, a source to live with dignity, viz., right to life guaranteed under the Constitution of India, it is imperative that a reasonable opportunity should be given to an employee to put forth his case effectively. The safe guards available to a teaching and non-teaching staff of a government or government aided educational institution, under Article 226 of the Constitution of India is equally applicable to a teaching or non-teaching staff of the unaided private educational institution. Article 14 of the Constitution of India, cannot be restricted only to a person working in government aided institution."6
Mr. Majumder in reply, since he had taken the point first, relies on judgment of Supreme Court in Sushmita Basu and others versus Ballygunge Siksha Samity and others reported in (2006) 7 Supreme Court Cases 680, paragraph 4 and Pradeep Kumar Biswas versus Indian Institute of Chemical Biology and others reported in (2002) 5 Supreme Court Cases 111, paragraph 40, which is extracted below:
"40.The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be - whether in the light of the cumulative facts as established, the body is officially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State."7
From constitution of the Governing Body this Court finds two persons to be nominees of State. First is a person who holds office of Director of Technical Education in Government of West Bengal. He is Ex-Officio member of Governing Body. Second is a person who is Assistant Professor, Department of Information Technology, Government College of Engineering and Textile Technology, in the Governing Body as member (Educationist). Two nominees of AICTE/UGC are firstly Assistant Director, Eastern Regional Office, AICTE inducted as Ex-Officio member and second, Professor, Department of Electrical Engineering, Indian Institute of Engineering Science and Technology, Shibpur inducted as member. These persons in their respective capacities in State and AICTE/UGC as members of Governing Body do not lead to an inference that their membership in it would be cumulative facts to say officially the Institution is financially, functionally and administratively dominated by or under control of Government. Control, if at all to be inferred, is merely regulatory whether under statute or otherwise but it would not serve to make the Institute a State or other authority for it to be amenable to writ jurisdiction.
8
In Dipak Kumar Biswas (supra) Supreme Court was considering judgment of High Court in appeal regarding reinstatement claim made by a lecturer in an aided college in Meghalaya. High Court had held reinstatement of petitioner was not possible as he did not belong to one of those categories for which alone reinstatement can be ordered viz.
(i) Government servants (ii) Industrial workmen (iii) employees of statutory bodies. Supreme Court referred to its earlier decision in Executive Committee of Vaish Degree College versus Lakshmi Narayan reported in (1976) 2 SCC 58. In that decision Supreme Court had held Executive Committee of the College was not a statutory body because it had not been created by or under statute and it did not owe its existence to a statute. On the contrary, it was a body, which came into existence on its own and was only governed by certain statutory provisions for the proper maintenance and administration of the Institute. Said Court went on to refer to another of its decisions in Smt. J. Tewari versus Jwala Devi Vidya Mandir reported in 1979 (4) SCC 160, in which it had repelled the contention and held that the Vidya Mandir in spite of being governed by the University regulations and provisions of Education Code framed by State Government and also 9 being aided by educational grants, still constituted only a private institution and as such appellant would only be entitled to a decree for damages, if her dismissal was wrongful and not to an order for reinstatement or like declaration. Considering its said earlier judgments Supreme Court in paragraph 12 (Vaish Degree College) said as follows:-
"12. The law enunciated in these decisions stand fully attracted to this case also. Even though the Lady Keane Girls College may be governed by the statutes of the University and the Education Code framed by the Government of Meghalaya and even though the college may be receiving financial aid from the government it would not be a statutory body because it has not been created by any statute and its existence is not dependent upon any statutory provision."
Considering facts and circumstances involved in Satimbla Sharma (supra) Supreme Court in paragraph 23 said it did not think that the Court could issue a mandamus to a private unaided school to pay salary and allowances equal to the salary and allowances payable to teachers of government schools or government aided schools. This is because the salary and allowances of teachers of a private unaided school is a matter of contract between the school and the teacher 10 and is not within the domain of public law. In K. K. Saksena (supra) Supreme Court considered many of its earlier decisions and said in paragraphs 43 and 52 the following which is relevant in this case.
"43. What follows from a minute and careful reading of the aforesaid judgments of this Court is that if a person or authority is "State" within the meaning of Article 12 of the Constitution, admittedly a writ petition under Article 226 would lie against such a person or body. However, we may add that even in such cases writ would not lie to enforce private law rights. There are a catena of judgments on this aspect and it is not necessary to refer to those judgments as that is the basic principle of judicial review of an action under the administrative law. The reason is obvious. A private law is that part of a legal system which is a part of common law that involves relationships between individuals, such as law of contract or torts. Therefore, even if writ petition would be maintainable against an authority, which is "State" under Article 12 of the Constitution, before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished from private law."
52. It is trite that contract of personal service cannot be enforced. There are three exceptions to this rule, namely :
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(i) when the employee is a public servant working under the Union of India or State;
(ii) when such an employee is employed by an authority/body which is a State within the meaning of Article 12 of the Constitution of India; and
(ii) when such an employee is "workmen" within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and raises a dispute regarding his termination by invoking the machinery under the said Act.
In the first two cases, the employment ceases to have private law character and "status" to such an employment is attached. In the third category of cases, it is the Industrial Disputes Act which confers jurisdiction on the Labour Court/Industrial Tribunal to grant reinstatement in case termination is found to be illegal."
In V. R. Rudani (supra) Supreme Court also considered its judgment in Vaish Degree College (supra) as followed in Dipak Kumar Biswas (supra). Supreme Court found case before it to be distinguishable on facts. Paragraph 22 relied upon by petitioner must be in context of what Supreme Court found on facts and law applicable. For that purpose following passages from the judgment is reproduced below: 12
"The decision in Vaish Degree College was followed in Deepak Kumar Biswas case. There again a dismissed lecturer of a private college was seeking reinstatement in service. The Court refused to grant the relief although it was found that the dismissal was wrongful. This Court instead granted substantial monetary benefits to the lecturer. This appears to be the preponderant judicial opinion because of the common law principle that a service contract cannot be specifically enforced.
But here the facts are quite different and, therefore, we need not go thus far. There is no plea for specific performance of contractual service. The respondents are not seeking a declaration that they be continued in service. They are not asking for mandamus to put them back into the college. They are claiming only the terminal benefits and arrears of salary 'payable to them. The question is whether the trust can be compelled to pay by a writ of mandamus?
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 13 mandamus will not lie. These are two exceptions to Mandamus. But once these are absent and when the party has no other equally conven-ient remedy, mandamus cannot be denied."
So far as SRM University (supra) is concerned distinguishing feature is apparent from paragraph 22 quoted before. Respondent was held amenable to writ jurisdiction on being found to be notified as "Deemed University" by Central Government under section 3 of UGC Act. Supreme Court said once said respondent is declared as Deemed University, its all functions and activities are governed by UGC Act, alike other universities, then it is an authority 'within the meaning of article 12 of the Constitution'. Once it is held to be an "authority" as provided in Article 12 then as a necessary consequence, it becomes amenable to writ jurisdiction of High Court under article 226 of the Constitution.
In P. Jeyachandran (supra) learned Single Judge interfered in exercise of power under Article 226 of the Constitution but it does not appear law regarding public law remedy to be availed of for interference regarding contract of service in private institutions was gone into. V. R. Rudani (supra) was relied upon in matter of granting relief to 14 petitioner who had been denied opportunity of hearing in disciplinary proceedings. Violation of fundamental right guaranteed under Article 14 of the Constitution was found perpetrated against petitioner. This Court has already noticed V.R. Rudani (supra) was on facts distinguishable from Vaish Degree College (supra) and Deepak Kumar Biswas (supra). It follows that case before learned single Judge of Madras High Court, as decided following V. R. Rudani stands distinguished on facts.
From above discussion this Court is of view that law laid down by Supreme Court regarding interference in matters of service conditions between employee and employer where employer is a private institution, remedy lies in private law. As such the writ petition is found to be not maintainable and is accordingly dismissed.
(Arindam Sinha, J.)