Andhra HC (Pre-Telangana)
Dr. Sr. Y. Philomena, Principal And ... vs Government Of A.P., Education, Rep. By ... on 22 July, 1994
Equivalent citations: 1994(2)ALT665
JUDGMENT B.K. Somasekhara, J.
1. This Writ Appeal under Clause 15 of the Letters Patent assails the judgment and order of dismissal of Writ Petition No. 3433 of 1993 passed by the learned Single Judge of this Court- Hon'ble Sri Justice V. Sivaraman Nair. The appellant who is the writ petitioner filed the writ petition against the respondents under Article 226 of the Constitution of India seeking the following reliefs:
(a) Declaring that the petitioner is entitled to function as Principal and Correspondent of St. Ann's Degree College for Women, Mehdipatnam and Correspondent of St. Ann's Junior Colleges.
(b) Declaring that the respondents 1 to 6 can transact any matter relating to St. Ann's Colleges with no one excepting the petitioner in her capacity as Principal and Correspondent of St. Ann's Degree College for Women, Mehdipatnam and Correspondent of St. Ann's Junior College for girls, Mehdipatnam and that they should ignore all representations, reports or communications sent to them by any of the respondents 7 to 14 claiming to represent St. Ann's Colleges, Mehdipatnam, Hyderabad on or after 10-6-1992.
(c) Declaring that the proceedings of 2nd respondent dated 13-11-1992 extending the period of suspension as arbitrary, illegal, viola rive of principles of natural justice and as violative of the statutory provisions in Section 79 of the Andhra Pradesh Education Act.
(d) Declaring that the notices dated 1-7-1992 and 10-8-1992 which are now brought into existence by respondent 1 to 14 and all the proceedings pursuant to that notice as illegal, unenforceable and untenable.
(e) Declaring that tine functioning of respondent No. 9 as Principal and Correspondent of St. Ann's Colleges as arbitrary, illegal and as unsustainable and also declare that respondent Nos.l to 6 should ignore all her actions, letters and communications sent to them as Principal and Correspondent.
(f) Declaring that the letters addressed by respondent No. 7 after the judgment in W.A. No. 612/92 directing the petitioner to join at Generalate pursuant to her transfer order and the consequential action taken by her by publications as arbitrary, illegal and unjust.
(g) Declaring that the assumption of powers by the respondent Nos. 7 to 14 in St. Ann's Colleges after the transfer order as arbitrary, illegal unjust and consequently direct through enquiry into all their activities and about the entire conduct and functioning of respondents 7 to 14 claiming to be on behalf of St. Ann's Colleges.
(h) Declaring the conduct of respondents 7 to 14 in making frequent press publications about the petitioner violating her fundamental rights guaranteed under Article 221 of the Constitution of India and holding a parallel discussions and publications thereof on issues pending in Court or decided by the Court as illegal and as interfering with the due process of law and consequently initiate appropriate p|-o;ceedings against them.
(i) Declaring Cr. No. 86/92 on the file of the CCS. along with connected proceedings on the file of the 6th respondent as illegal arbitrary and unconstitutional and pass any other appropriate orders deemed in the interests of justice.
(j) Declaring that the order dated 29-1-93 in LA. No. 2971 of 1992 on the file of the Chief Judge, City Civil Court, Hyderabad as without jurisdiction and as inconsistent with the earlier order dated 6-11-1992 in LA. No. 2968 of 1992 in O.P. No. 1075 of 1992 passed by him and as violative of the orders of the High Court in C.R.P. No. 37/93 and consequently set aside the same.
2. The learned single Judge after hearing all the parties through their learned Advocates and on the material placed before the Court held that:
".... In view of the fact that there is an efficacious alternative remedy available to the petitioner and she having availed that remedy, there is no justification for invoking the extraordinary jurisdiction of this Court......."
In regard to reliefs 1 to 8 and 10 and in regard to relief No. 9, it was further held that:
".....The police have a duty in a case where a complaint of commission of offence punishable under any penal law enforcement of which is within its jurisdiction, is filed before it, to investigate the allegations and take a decision one way or the other either to prosecute the offender or to report to the Court that no offence is made out. That decision vests primarily in the investigating agency, and it is well that the Courts do not interfere with the exercise of that jurisdiction by the competent authority. If the Court interferes in all such situations and pre-empt the investigator from discharging all such duties as the criminal laws entrust with him, it may result in an unmanageable situation......"
and consequently dismissed the writ petition without any orders as to costs. The correctness and legality of the same is thus challenged here seeking the same reliefs as above, by allowing the appeal and the writ petition. Respondents 7 to 14 and 16 have strongly resisted the appeal, respondents 1 to 6 and 15 while presenting their view points have chosen to take the decision on merits as the" Court deems fit. The learned Advocates who represent the respective parties as hereunder:
Mr. K. Parasaran for Sri S.S. Prasad for the petitioner, Govt. Pleader for Education for Rr.l, 2 and 15, Mr. N. Bhaskar Rao, Standing Counsel for R-3, Mr. C.V. Mohan Reddy for R-7, and R-10, Mr. B. Nalini Kumar for Respondents 11,12 & 14, Govt. Pleader for Home for Respondents 5 and 6, Mr. M. Panduranga Rao for Respondent No. 13, Mr. G. Manohar for Respondent No. 16, Mr. B.S. Reddy for Respondent No. 4 and Mr. J.N. Prasad for Respondents 8 and 9 have not spared any pains in presenting their respective cases fully and effectively and with all fairness at their command to aid and achieve the course of justice.
3. The convenience warrants the reference to the parties in the status they were represented in the writ petition. Therefore, reference as petitioner and respondents shall mean, the appellant and the respondents in this appeal. A brief record of the facts and circumstances which lead to the decision in the writ petition is necessary. The learned Single Judge has elaborately referred to them (sic) the judgment. The petitioner is the Principal and Correspondent of St. Ann's college for Women, Mehdipatnam, Hyderabad and she was transferred to (sic) Ann's Generalate, Guntur by the 7th respondent who was the Superior General of that Society by issuing the notification dated 10-6-92 published in the English Daily News Paper "Deccan Chronicle" dated 12-6-92 claiming to be on religious grounds. She challenged it on various grounds in Writ Petition No. 7412/1992 before this Court which was filed on 18-6-1992. That writ petition was resisted by the respondents. The learned single Judge of this Court dismissed the writ petition on 22-6-1992. The petitioner took the matter in appeal (W.A. No. 612/92) to a Division Bench of this Court comprising Hon'ble Sri Justice V. Sivaraman Nair and Hon'ble Sri Justice A. Gopal Rao. That appeal was also resisted by the said respondents. That appeal was allowed by the same Division Bench on 10-8-1992. The leave to appeal to the Supreme Court, made to the Division Bench was rejected. The Special Leave Petition against the judgment in W.A. No. 612/92 presented to the Supreme Court came to be dismissed on 21-9-1992. The respondents therein sought to review the matter by the Supreme Court and that came to be dismissed on 4-11-1992. While that be so, the present respondents 7 to 14 proposed to convene the General Body Meeting of the Society of the St. Ann's College for Women, Mehdipatnam, Hyderabad on 30-7-1992 and issued a notice dated 1-7-1992 to that effect and one of the subjects on the agenda was certain alleged undesirable activities of the petitioner as Secretary of the Society and the Correspondent and Principal of the said College. After the Writ Appeal No. 612/92 was allowed setting aside the order of transfer of the petitioner, respondent No. 10 allegedly acting on behalf of the Management of the St. Ann's Convent Society passed the impugned order dated 15-9-92 and 16-9-92 proposing to initiate the enquiry against the petitioner into certain alleged misconducts and to suspend her pending enquiry. The petitioner challenged the impugned orders of respondent No. 10 before the VI Assistant Judge, city Civil Court, Hyderabad on 22-10-1992 by filing O.S, No. 4030/92 and got an ad interim order of injunction by filing I.A. No. 1603^92 on 23-10-1992. This resulted in various proceedings between the petitioner, respondent Nos. 7,10 and 16, as detailed in Paras 3 and 4 of the judgment of the learned Single Judge. The petitioner and respondent No. 10 also approached the competent authority under the A.P. Education Act in regard to the order of suspension and the matter appears to be pending in the appeal. In the meanwhile respondent No. 16 lodged an FIR dated 23-11-1992 with the Central Crime Section, Hyderabad alleging certain offences as against the petitioner, like fraud, misappropriation, breach of trust, cheating etc., and the Station House Officer, registered Crime ISJo.86/92 against her for the offences punishable under Sections 468, 471, 408 and 420 of the Indian Penal Code and took up the investigation. Therefore, the petitioner having been aggrieved by the impugned orders and the criminal proceedings taken against her as above, challenged them seeking the reliefs as stated above before the learned Single Judge of this Court in Writ Petition No. 3433 /93, the dismissal of which is the subject matter of this appeal.
4. The grounds of appeal have been elaborated during the course of the arguments by the learned advocates for the petitioner. Equally well they are repelled by the learned Advocates for the respondents wherever they are controverted. Shorn of the over-elaboration, such contentions and counter contentions can be recorded in brief. The contentions for the petitioner are:
(1) The various proceedings before the civil courts between the parties although contemplated certain remedies, cannot be treated to be effective or efficacious remedies for the petitioner as against the reliefs claimed by her in the writ petition. They are in fact proved to be ineffective and inefficacious. The representation of the petitioner to the Government which is an appeal filed by the contesting respondents as a whole, has nothing to do with the whole and the true reliefs which the petitioner has sought in the writ petition. The writ petition which is based on the decision of the Division Bench of this Court in W.A. No. 612/92 and on the interpretation of various provisions and in particular Sections 2(27) and 79 of A.P. Education Act and other statutory law and rules operating on the rights of the petitioner involved questions of law, interpretation of Section 79 of A.P. Education Act etc., were to be necessarily decided by this Court in writ proceedings and could not have been decided fully and effectively in the proceedings before the other Courts. Since the petitioner has alleged mala fides against the contesting respondents, in particular respondents 7 and 10, this Court was called upon to decide the same so as to examine the legal sustenance of the impugned order of suspension of the petitioner. The reliefs claimed in the writ petition were not only in relation to the impugned order of suspension and for reinstatement of the petitioner with incidental reliefs, but also comprised an independent relief - item No.(2) - concerning the criminal proceedings in Cr. No. 86/92 before the 6th respondent as illegal, arbitrary and unconstitution and to quash the same and this was not one of the reliefs which could have been decided in the proceedings before the other Courts. As a whole, the petitioner having sought to enforce the fundamental right, a right to live under Article 27 read with Article 14 of the Constitution of India in the writ petition, the Court was entitled to exercise the discretion vested in it under Article 226 of the Constitution of India and declining to exercise of the same by the Court is contrary to law and unsustainable.
(2) The writ petition is also based on the effect of Section 79 of A.P. Education Act wherein the impugned order of suspension would not operate beyond 4 months and it came to be passed after the termination of the previous proceedings and therefore, it was necessary for the Court to decide such an important question of law on the fresh ground or basis on merits. That was not a matter which can be considered or decided in the proceedings before the other Courts as it has occurred subsequent to such proceedings as a legal consequence and the operation of law. By virtue of Section 79 of A.P. Education Act, on the lapse of 2 months from the date of suspension initially and the further lapse of 2 months after the date of extension and the lapse of 4 months as a whole from 15-11-92 there was no order of suspension operating against the petitioner which entitle her to be restored to her service both as the Principal and the Correspondent by virtue of Section 79 and therefore, it was possible for the Court under Article 226 of the Constitution of India to issue such appropriate order as may be necessary to sustain such rights of the petitioner which had already been established in the previous writ proceedings.
(3) Since the impugned order was passed during the period when the status quo order was in operation in the previous proceedings and in violation of the status quo order it became ineffective as against the petitioner and therefore, the Court could have taken note of the same and give appropriate remedy to the petitioner in the writ petition. Since the Government and the comeptent authority have taken the stand that under Section 79 of A.P. Education Act, the petitioner is entitled to be reinstated as Principal and the Correspondent, the appeal filed by the respondents in that regard before the Government in spite of the order passed against them in W.A. No. 265/93 is a matter which require to be considered by the Court in the writ petition to give necessary remedies to the petitioner. When the propriety, legality and the correctness of the impugned order had been challenged in the writ petition on various grounds apart from the grounds in the proceedings before other Courts, it was only the High Court which could have decided those grounds as claimed by the petitioner.
(4) The Government and the competent Authority who are the parties in the civil proceedings and also in the writ petition become disqualified to decide the questions involved in the writ petition and therefore, it was for the Court in the writ petition to consider the grounds raised by the petitioner and to examine whether the appropriate remedies claimed by her can be granted.
(5) The impugned order of suspension is vitiated due to various reasons mentioned in the grounds and the affidavit of the petitioner and the Court in the writ petition was bound to decide them.
(6) The interpretation and the expressions in relation to the order of suspension having been set aside by the Court in the writ appeal, to mean, that the petitioner is not entitled to function as the Principal of the College in addition to her right to receive other benefits attached to the Principal, cannot be the true intent, and the implication of Section 79 of A.P. Education Act, the impugned order of suspension of the petitioner as the Correspondent is impermissible in law being contrary to Section 24 of A.P. Education Act and Rule 7 of Grant-in-Aid Code and this legal question require to be decided by the Court in the writ petition.
(7) When the criminal proceedings against the petitioner have been assailed on the ground of malice and mala fides by the contesting respondents in order to wreak vengeance against the petitioner, it was necessary for the Court, in the writ petition to decide the same in the background of the facts and circumstances of the case in addition to law operating upon them.
(8) Since the factual and legal effect of the impugned order of suspension against the petitioner was to overcome the decision of this Court in W.A. No. 612/92 wherein the transfer of the petitioner was quashed by the Court and wherein she was entitled to be reinstated as the Principal and Correspondent of the College and the Society, the reliefs claimed by the petitioner in this regard ought to have been granted by the Court in the writ petition.
(9) The several grounds raised by the petitioner in the writ petition were supported by the authoritative precedents of the Supreme Court and several High Courts and they were to be considered wherever necessary, and that has not been done in the writ petition.
(10) As a whole, the writ petition deserves to be allowed granting the reliefs claimed thereunder by setting aside the order of dismissal of the same by the learned single Judge and by allowing this appeal.
5. On behalf of the contesting respondents the judgment and the order of the learned single Judge and the grounds upon which they are rendered, are totally supported. All the contentions mentioned supra are not conceded and on the other hand challenged by them. The respondents 1 to 4 while agreeing on certain contentions of the petitioner appear, to have taken a neutral stand in regard to the controversies between the petitioner and respondents 7 to 14 and 16. On behalf of respondent No. 16, it is contended that the decision in the Writ Appeal No. 612/92 by this Court is not binding on the party since it was not a party in the said proceedings and since it was impleaded only in the writ petition in question on 4-8-93 and further, the writ petition is not maintainable since no relief is claimed against respondent No. 16.
6. With all the presentment of loaded facts and circumstances from the pleadings, rhetoric and able arguments covering so many postulations and legal results on either side, all of them may be sublimated to the following points for determination:
(1) (a) Whether the proceedings filed by the petitioner before the Civil Courts, the competent authority under the A.P. Education Act and the Government are for similar remedy/remedies sought in the Writ Petition No. 3433/93 and whether such proceedings and the writ petition can be termed as parallel proceedings leading to the same results?
(b) If so, whether they are alternative, efficacious remedies for the petitioner in regard to any or all the remedies sought in the writ petition?
(c) If so, whether it was not a fit case to exercise the discretionary powers of this Court under Article 226 of the Constitution of India?
(d) If not, whether the dismissal of the Writ Petition No. 3433 /93 by the learned Single Judge on such a ground can be supported?
(2) (a) Whether the impugned order of suspension of the petitioner was passed by a legally constituted management?
(b) Whether it is legal and valid?
(c) Whether it was operative and even after the lapse of two months of the order and after the lapse of the extended period of two months by the competent authority by virtue of Section 24(3) of A.P. Education Act, 1982?
(d) Whether the petitioner should be deemed to be restored to service after the lapse of 4 months as a whole from the date of the impugned order of suspension by virtue of Section 79(3)(b) proviso of A.P. Education Act, 1982 and whether she can be prevented from actually functioning by mere payment of her emoluments etc.,
(e) Whether the impugned order of suspension of the petitioner is vitiated on the ground of malice or mala fides alleged by the petitioner?
(3) (a) Whether the criminal proceedings against the petitioner in Cr. No. 86/92 before respondent No. 6 are lodged by the competent authority in law?
(b) Even otherwise whether they are vitiated on the ground of malice or mala fides?
(c) If so whether they are liable to be quashed?
(4) Whether the Judgment and Order of dismissal of W.P. No. 3433/93 are liable to be set aside?
(5) What among the reliefs claimed in Writ Petition No. 3433/93 by the petitioner deserve to be granted to her?
(6) What order as a whole?
7. From the admitted facts, the learned single Judge has incorporated in paras 3 to 8 of the judgment the different original proceedings before the Civil Courts between the parties and the reliefs claimed therein. That may be recorded in brief conveniently. O.S. No. 4030/92 on the file of the IV Assistant Judge, City Civil Court, Hyderabad filed by the petitioner on 22-10-92 is for declaration that the impugned .Orders were illegal on the ground that the association of persons who were alleged to have issued the impugned orders of suspension was not the duly constituted management of the Colleges and therefore, it had no jurisdiction to pass any order of suspension. An order of temporary injunction was passed by the Court in LA. No. 1603/92 to stay the proposed disciplinary enquiry against the petitioner. O.P. No. 372/92 is filed by the petitioner under Section 11 of the Andhra Pradesh (Telangana Area) Public Societies Registration Act, 1350 Fasli before the Court of the Chief Judge, City Civil Court, Hyderabad on 31-10-92 for declaration that the activities of the contesting respondents are detrimental and prejudicial to the interests of St. Ann's Convent, Mehdipatnam and for declaration that the claims of the respondents about the General Body Meetings and the Executive Body Meetings of the Convent Society as per their letter dated 10-9-92 is illegal, without jurisdiction and in violation of rules and regulations of the Convent Society and are not binding on the petitioner. The petitioner filed O.S. No. 40/92 against the contesting respondents that the communications dated 15-9-92 and 16-9-92 dealing with the suspension of the petitioner is invalid, illegal, without jurisdiction and not binding on her and for permanent injunction restraining them and persons acting through them from interfering with the management of St. Ann's College, Mehdipatnam and from interfering with the functioning of the plaintiff as the Principal and the Correspondent. The contesting respondents filed O.S. No. 1209/92 before the Additional Chief Judge, City Civil Court, Hyderabad for declaration that the Board of Management constituted by the present petitioner is illegal and void and non est in law and for permanent injunction restraining the petitioner, her men, subordinates, agents etc., from interfering with the affairs of the Society including the Colleges established by the Society pending disposal of the disciplinary proceedings against the petitioner. On 7-11-92 respondent No. 10 applied to the competent authority seeking extension of the order of suspension by two months as against the petitioner in terms of Section 79(3) of A.P. Education Act and the competent authority extended it in its proceedings dated 13-11-92. Approval for the appointment of respondent No. 9 as the Correspondent was also sought from the competent authority and it was refused on 17-3-93. Respondent No. 16 filed W.P. No. 6106/93 challenging the order of the Commissioner of Collegiate Education dated 17-3-93 and that came to be dismissed on 9-11-93 on the ground that she had alternative and effective remedies. Respondent No. 16 lodged FIR on 23-11-92 with the Station House Officer, Central Crime Section, Hyderabad which is registered as Cr. No. 86/92 against the petitioner for the offences under Sections 468,471,408 and 420 of the I.P.C. and investigation was taken up thereon.
8. Both the sides have filed memos of the details of the other proceedings between them which emanated at various stages from the above proceedings and that may not be necessary to be noted at this stage. The learned single Judge has pointed out in para 9 of the judgment that the reliefs claimed by the petitioner in her suits and proceedings and the defence of the contesting respondents and the reliefs in their suit are, though not identical, have a considerable bearing on the reliefs which are sought for in Writ Petition No. 3433/93. Therefore, two points were formulated for determination viz., (1) whether there are such extraordinary circumstances which compel the exercise of discretion of this Court in the extraordinary proceedings which are pending before various Courts of law and (2) whether this Court shall grant the relief of quashing the proceedings in Crime No. 86/92 in these proceedings. As already pointed out , the learned single Judge held both the points in the negative and consequently dismissed the writ petition. Before doing so, the learned single Judge has struck a note of caution for himself that "unless I find extraordinary circumstances justifying interference, the ordinary rule shall prevail that a person who has got other efficacious alternative remedies or has , gone one step further invoking jurisdiction in parallel proceedings is not entitled to any relief in exercise of the discretion of this Court under Article 226 of the Constitution of India. The circumstances mentioned by the Counsel for the petitioner are not such extraordinary circumstances justifying departure from the ordinary rule."
9. There appears to be sufficient force in the contentions of the learned Advocates for the petitioner that the above reasoning or the findings are not justified in the nature of the facts and circumstances of this case. In the first place, factually all the reliefs claimed in the writ petition were not the subject matter of the proceedings of the petitioner before the civil Courts, the suit of the contesting respondents before such courts and the proceedings before the appellate authority under the A.P. Education Act. Patently relief No.(i) to declare the Criminal Proceedings in Crime No. 86/92 before the 6th respondent and the connecting proceedings as illegal, arbitrary and unconstitutional and to pass any appropriate orders in that regard is not one of the reliefs in any of such proceedings much less, such a relief can be granted by a civil Court. Atleast, it was not examined whether such a relief could be or could not be granted by a civil Court under Section 9 C.P.C. or any other law for the time being in force operating upon the civil proceedings. Secondly, the interpretation of the Judgment of the Division Bench in Dr. Y. Philomena v. Principal Secretary, Education, ., may incidentally raise certain complicated constitutional questions for interpretation. It is difficult to expect the Courts dealing with such proceedings to venture such a process and even if such questions are dealt with and decided, no decision can be rendered by the civil Courts and such questions are to be referred to the High Court for decision under Section 113 of the Code of Civil Procedure thereby such questions before the civil Courts cannot find a finality in the decision and will be again subjected to the decision of this Court. That seriously doubts the competence and the effective and final disposal of such questions in such proceedings before the civil Court. Further more, a new ground or relief is raised by the petitioner in the writ petition about the impugned order of suspension becoming non est due to lapse of time by virtue of Section 79(3) of the A.P. Education Act as a new cause of action which has occurred subsequent to the said proceedings and that may not be one of the subject matters to be dealt with in civil proceedings nor to be decided. The legality and validity of the impugned order is also challenged on the ground of jurisdiction and mala fides. It was rightly pointed out that almost all the facts leading to controversies between the parties are not in dispute and need no trial or inquiry in the civil proceedings and therefore, the High Court is not called upon to decide the questions of fact as controversies muchless expect the parties to enter witness box for cross-examination on such matters, ft is also rightly pointed out that inspite of the petitioner establishing her legal rights which she call as fundamental rights in Writ Petition No. 3433/93 getting the order of transfer quashed on similar grounds by this Court in W.A. No. 612/92 which has become final up to Supreme Court after a long battle, she is not able to get the fruits of the same due to certain methods adopted by the contesting respondents and it is pointed out that even if she succeeds in the civil proceedings ultimately which is yet to go a long way at various stages of appeals etc., before the civil Courts in the hierarchy and ultimately, she may not succeed in getting her due. When there were so many such contingencies operating from the facts and circumstances of the case, it was necessary to be considered on merits in the writ petition. The powers of this Court to grant such reliefs under Article 226 of the Constitution of India is not for a moment doubted by the learned single Judge. Particularly when the petitioner was trying to establish and enforce her legal rights which she calls fundamental rights, as an employee protected by statutes and the rules, the Court was entitled to examine it and grant suitable reliefs under Article 226 of the Constitution of India as laid down in Unnikrishnan J.P. v. State of A.P., ., that such a right of the petitioner as the Principal and Correspondent of the College and the Institution protected under the statute and the statutory rules is conceded by the learned single Judge who as one of the members of the Division Bench in W.A. No. 612/92. When such a relief can be granted on similar grounds under Article 226 of the Constitution of India, it is unthinkable that it was not open for the Court to consider whether they can be afforded to the petitioner in the present writ petition also. Thus, to call the reliefs claimed in the civil proceedings as alternative and efficacious, may not be convincing. Some of the reliefs in the writ petition as already pointed out may be similar and alternative, but at any rate cannot be effective or efficacious. The parties have already run from pillar to post number of times and the result may not be different if they are driven to seek such remedies in the civil proceedings having due regard to their peculiar conduct and circumstances of the case. The ordinary simple grammatical and dictionary meaning of 'efficacious' is 'effectual, productive of effects, producing the effect intended, having power adequate to the purpose intended' (vide p.276, column No. 3 of The New Webster Encyclopedic Dictionary of the English language, 1980 Edition), and 'producing or sure to produce the desired effects' (vide p.374 right column of the Concise Oxford Dictionary, New Edition of 1990). Therefore, here the petitioner cannot achieve her desired effects in the civil proceedings. Apart from the factual and the practical aspects of the situation, the law in regard to the powers and jurisdiction of the High Court under Article 226 of the Constitution of India need not be over emphasised as they are settled by various precedents. Such a power is discretionary, but no limits can be placed upon such discretion; it must be exercised along recognised lines and not arbitrarily. When the aggrieved party alleges infringement of the fundamental right, the Court should decide about the existence of such a fundamental right to give effect to it. The Court cannot act as a Court of appeal or revision, to correct mere errors of law or fact. It is true that Article 226 of the Constitution of India is not intended as an alternative remedy for relief which may be obtained by suit or other modes prescribed by statutes. The High Court does not generally enter upon a determination of question which demands an elaborate examination of evidence to establish the right claimed to be enforced. Such powers may be exercised where there is violation of principles of natural justice. While exercising the discretion under Article 226 of the Constitution of India in a situation as in the present case where the alternative remedy is equally efficacious or adequate should be decided as a question of fact, however, the onus being on the applicant to prove the same. The reliefs sought in the- proceedings before the civil Court can never be always treated as alternative remedies although they may be additional remedies as laid down in S. V. Glass Works v. Union of India, . Although the pendency of the suits or other civil proceedings for similar reliefs may be a good ground to withhold the discretion under Article 226 of the Constitution of India, the Court has jurisdiction to grant such reliefs in proper cases, vide Khurai Municipality v. Kamal Kumar, . The mere existence of an alternative remedy is not an absolute bar to the relief under Article 226 of the Constitution of India and it does not take away the jurisdiction of the Court to grant the relief in exceptional circumstances. The general rule that the adequate alternative efficacious remedy is sufficient to withhold the discretion of the Court under Article 226 of the Constitution of India, seeks an exception where a fundamental right has been infringed, where some mandatory provision of the Constitution has been violated, where .the alternative remedy is dialatory or difficult to give quick relief, where the authority against whom complaint is made has violated the rules of natural justice, where the order is a nullity for some reason, where there is some defect going to the root of the jurisdiction or authority, where the alternative remedy is ineffective or entails such delay that the applicant would be irreparably prejudiced or subjected to lengthy proceedings or unnecessary harassment and where the order or action of the authority is tainted with malice or mala fides.
10. In Pratap Singh v. State of Punjab, ., and Bahl K.N. v. State of Punjab, ., it was held that:
'Where the service rules which are all statutory in character vest the power to pass order in the government or the appropriate authority for the purpose for which the power is conferred. Therefore, the question whether or not the order was passed mala fide can be gone into by the Courts. No order passed in exercise of such power with mala fide intention could be allowed to stand."
11. In Mohd. Ibrahim v. State of A.P. . it was held that:
"Where serious allegations are made in a writ petition in support of the plea that the order passed against the petitioner was made out of malice, the High Court should investigate the said question and cannot fail to consider the said plea. In such a case if the allegations of mala fides are not investigated and the petition is dismissed in limine or without deciding the said question it clearly means that there is no fair trial of the writ petition filed before the High Court."
If we apply these settled principles, it was not open for the learned single Judge to dismiss the writ petition without examining such grounds raised by her. We respectfully disagree with the view of the learned single Judge that it was not a fit case to exercise the discretion of the Court under Article 226 of the Constitution of India on the ground that there were alternative and efficacious remedies pending between the parties before civil Courts and the appropriate authority, even without going into so many grounds raised in the petition on merits and in particular the relief No.(i) to quash the criminal proceedings initiated against the petitioner which was not the subject matter of any of the civil proceedings. At the same time the final order of dismissal of the writ petition on such a ground cannot be supported for the reasons stated above.
12. Since the learned single Judge has not considered the grounds raised in the writ petition by the petitioner, we are called upon to examine them and decide them on merits. The first round of litigation in W.P. No. 7412/92 and W.A. No. 612/92 Sr. Philomina's case (1 supra) between the parties has settled most of the facts and law as a background for this case and having become final and conclusive as between them. The law laid down thereunder binds all including this Division Bench unless there are strong reasons to differ when the legal consequences will follow. In brief, the res juduicata inrem and res judicata in personam will operate. The respondents 10 and 16 have tried to escape the res judicata in personam on the ground that they were not parties to the proceedings and none of the findings by the Court therein, much less the law decided thereon, can operate on them. The learned Advocate for them has tried to point out that most of the factual situations upon which certain observations were made in Sr. Philomina's case (1 supra), cannot be termed as findings, much less the declared either to bind the parties or to make it a binding precedent. The learned Advocates for the petitioner have contended to the contrary that respondents 10 and 16 although not the parties to the previous writ proceedings, with description they are fully and substantially represented by respondents 7, 10 and 16 in all the proceedings till they became final and conclusive and further with all the facts considered and decided, the findings given and the law declared thereon by the Court should press into service the doctrineof res judicata and the binding nature of the precedent. On a comparison of the parties in the cause title in W.P. No. 7412/92 and the present Writ Petition No. 3433/93, except respondents 10 to 16, all other respondents are common in both the writ proceedings with some alteration in the seriatim. In so far as respondents 11 to 15 are concerned, no such contention is seriously raised in view of the fact that they have come into the picture recently due to change of events leading to the impugned order of suspension of the petitioner etc. To recall the facts leading to previous writ proceedings ending with the decision of the Supreme Court thereon, the petitioner therein challenged her order of transfer passed by respondent No. 10 as the Superior General of St. Ann's Generalate, Guntur, on various grounds, whereas the then Superior General, St. Ann's Generalate, Guntur as respondent No. 7 set up a clear case that she as the Superior General, Guntur which is the parent body had appointed the petitioner as the Principal and Correspondent of Mehdipatnam Society and that she was entitled to transfer her for justifiable reasons. It was also contended that she could do it in the capacity of the President of St. Ann's Convent, Mehdipatnam, Hyderabad. In almost all the proceedings before the civil Court as detailed above, the Superior General of St. Ann's Generalate, Guntur, is a party and has represented the interest of Guntur Society and also the interest of Mehdipatnam Society at Hyderabad in the capacity as the President. Such contentions were advanced throughout in such proceedings. Both the sides have taken this Court through the elaborate pleadings in this regard and the above inference is based on such pleadings. Notwithstanding the rival contentions as above, the learned single Judge could not have rejected the writ petition on the ground of availability of alternative remedy after admission and issue of rule nisi as per the authoritative pronouncement of our own High Court in M/s. Deluxe Wines, Kachiguda, Hyderabad v. The State of Andhra Pradesh and Ors., 1990 (2) ALT 121 (D.B.). Because the petitioner was challenging her transfer order passed by respondent No .7 the then Superior General of Guntur Society while functioning as the Principal and the Correspondent of Mehdipatnam Society and since that transfer order had nothing to do with the exercise of powers or authority by the Mehdipatnam Society, perhaps, there was no reason to implead respondent No. 16 as a party in the previous proceedings. Even then, respondent No. 7 in dual capacities represented the interests of both the Societies at Mehdipatnam and Guntur and took a decision which has become final. Therefore, as rightly contended by the learned Advocates for the petitioner, respondent No. 16 is barred by res judicata due to the decision in the previous proceedings by virtue of substantial representation. Whether any observation in Sr. Philomena's case (1 supra) amounts to clear finding on the definite issues between the parties and there is declaration of law on such questions, can be examined from that case, atleast to use it as a binding precedent. Even assuming that Mehdipatnam Society was not substantially represented in the previous proceedings, the same issues based on similar controversies which are part of the present writ proceedings also, can be independently examined to know whether any different result than the one produced in the previous proceedings, would emanate.
13. With this, certain factual aspects regarding which findings are given in Sr. Philomena's case (1 supra) can be noted to examine the questions raised regarding the impugned order of suspension of the petitioner.
14. Originally the Central Society of St. Ann's Society, Guntur was instituted and registered on 21st October, 1972 and many educational institutions including St. Ann's Convent, Hyderabad at serial No. 18 were entrusted to the management of Guntur Society (hereinafter the two societies can be conveniently referred to as Mehdipatnam Society and Guntur Society) as per Regulation No .9. Subsequently St. Ann's Convent, Vizianagar Colony, Hyderabad was got registered on 18-8-1973. Similarly the Guntur Society established number of separate societies for administrative convenience to maintain and manage various educational institutions. As the Management of St. Ann's Convent, Vizianagar Colony, Hyderabad was finding it difficult to manage the junior college and degree college, the 16th respondent viz., Mehdipatnam Society was registered on 9-7-87 of which respondent No.ll Mother Mary Stella was made the President, respondent No. 12 Sr. Petrina the Vice-President, the petitioner Sr. Phelomina, the Secretary and Treasurer, and respondent No. 13 Sr. Holy Cross and respondent No. 14 Sr. Theophila were made the members. The petitioner was appointed as the Principal of St. Ann's College for Women, Mehdipatnam and the Correspondent of Mehdipatnam Society. At the relevant time of the transfer of the petitioner from Mehdipatnam Women's College, she was working as the Principal and Correspondent in the said institution governed by Mehdipatnam Society. Therefore, in Sr. Philomena's case (1 supra) in para 13 it was concluded as follows:
".... It is evident from the pleadings that St. Ann's Colleges were established by St. Ann's Convent, Mehdipatnam of which the parent religious society is the Society of St. Ann's Amaravathi Road, Guntur."
That is how in para 20 of the said judgment, it was concluded that the Parent Society of Guntur and the Mehdipatnam Society to which the colleges were transferred were entirely two different entities. Significantly enough, respondent Nos. 16 and 10 have admitted this in their counter affidavits.
15. The governing body of Guntur Society is as per Article 5 of the Memorandum of Association of which some of the parties in the proceedings are also the members and that may not be relevant for these proceedings. The executive body of Mehdipatnam Society is as per Article 6 of the rules and regulations of the society which was registered on 24-2-1987 which consists of the President, Vice-President, and Secretary & Treasurer as ex-officio members and the remaining two of them shall be nominated. Incidentally when the Society was formed, there were five founder members inclusive of respondent No.ll as the President, respondent No. 12 as the Vice-President, the petitioner as the Secretary & Treasurer and respondents 13 and 14 as the members. It is spelt out in Regulation No. 4 of Mehdipatnam Society that the members of the Society shall be such sisters as are members of the Society as may from time to time be called upon in writing by the Executive Body to be the members of the Society and may who shall intimate their consent to the Executive Body to such members and shall sign the register of Members maintained by the Society in token of such consent. Therefore, the Executive Body of Mehdipatnam Society at the relevant time comprised the five founder members supra of which the petitioner, respondents 11 and 12 were the ex-officio members and respondents 13 and 14 were the members. The context in which the words "members of Society" is used in Article 4, may mean that they were none other than the five founder members and other members who could be inducted in accordance with Regulation No. 4. Because no list of such members is filed in the proceedings we are not in a position to say about the other member/members of that society. Regulation III dealing with powers of Executive Body, in specific terms declare the powers of the Executive Body as hereunder:
"The Executive Body shall have the entire control and management of the business and affairs of the Society enabling them generally to carry out the objects of the society as are by the Act required to be exercised or done by the Society in General Body Meeting."
Particularly in regard to discipline and control over the staff of the colleges of the society, it further reads:
"Without prejudice to the generality of the foregoing powers, the Executive Body shall have the following powers: viz.,
(a) For any of the objects and purposes of the Society to employ and procure the assistance of and to suspend, discharge and dismiss nurses, doctors, teachers, social workers, attendants and any other personnel or staff either for remuneration or gratuitously on such terms as the Executive Body may deem fit."
Respondent No. 16 has specifically admitted these facts in the counter affidavit. The other contesting respondents have not denied it. Therefore, after examining these facts and other facts arising out of the pleadings in Sr. Philomena's case (1 supra) and the legal implications flowing from certain provisions of A.P. Education Act, Grant-in-aid Code Rules etc., certain findings were recorded by the Division Bench of which the learned Single Judge Hon'ble Mr. Sivaraman Nair, was a member and who rendered the judgment on behalf of the Bench. On a careful examination of the same independently, this Court is not able to hold anything to the contrary. The brief record of what is decided in Sr. Philomena's case (1 supra) would give a clear picture and the basis in this case to decide the correctness, legality etc., of the impugned order of suspension of the writ petitioner. As already pointed out Mehdipatnam Society and Guntur Society were entirely two different entities. The petitioner was the Principal and Correspondent of the 'private institutions' as defined in Section 2(35) of A.P. Education Act and 'minority educational institution' as defined infection 2(29) of A.P. Education Act (hereinafter referred to as 'the Act'). That should be 'educational agency' within the meaning of Section 2(17) of the Act. The Management of that Society is the Managing Committee or the Governing Body to which the said affairs of the institution are entrusted. Although respondent No. 10 the President of the Guntur Society was incidentally the President of Mehdipatnam Society the Management was\not entrusted by the Governing Body. The basic requirement is that; the educational agency applying for permission and in whose favour permission has been granted must have constituted the same body of individuals as the management. The only person in whom the powers of management and conduct of the Colleges are vested is the manager/secretary/correspondent, nominated by the management body. The Board of Management constituted by the Society is the 'management' under Section 24 of the Act. The petitioner who was appointed as Correspondent by the Board of Management was nominated as the Manager of the Colleges under Section 24(2) of the Act. Therefore, the petitioner once appointed as the Manager by the Managing Body, can be removed only by the same Body in accordance with the constitution or bye-laws of the Society as provided under Section 24(1) of the Act. The provisions of A.P. Minority Educational Institutions (Establishment, Recognition and Regulation) Rules, 1988 promulgated in G.O.Ms. No. 526, Education (Rules) Department dated 21-12-1988 and in particular Rule 8 make it clear that the administration and affairs of the College are conducted through a Body of Management constituted by the Educational Society. That is a statutory requirement from which there is no escape. It is evident from the provisions - Sections 79,80,83,89 and 90 of the Act, that an educational agency or the management functions under the statute and its actions are subject to approval by the competent authority. It is the 'Management' as defined under Section 24(2) of the Act which appoints a Correspondent and who also be called as Manager or Secretary. That is how the petitioner was appointed as a Correspondent by the Board of Management of St. Ann's Society at Mehdipatnam and not by respondent No. 10. By virtue of Section 20(3) of the Act and the Rules made thereunder, the educational agency has to constitute the management in the prescribed manner and it is evident from the provisions of Section 24 of the Act that it shall be a body of persons so constituted as to consist of the specified number of persons. The manner of its constitution and the number of members which it shall consist of shall also be prescribed. Except to the extent that it shall not be repugnant to clause (1) of Article 30 of the Constitution of India, the minority educational institutions also are obliged to have managements as mentioned above. It is that body which nominates a person to manage the affairs of the institution who may be called either as secretary or correspondent or any other name and in him/her shall vest the responsibility for managing and conducting the affairs of the private institution in accordance with the provisions of the Act, Rules and Orders. Provision for removal is also made under Section 24 of the Act. Therefore, it was held that the power of transfer vests in the governing body of the Society and subject to the approval by the competent authority and therefore, it was that body which could transfer the petitioner and not the 7th respondent as the President of Guntur Society. It has been concluded that the petitioner as a Principal whose appointment has been approved by the competent authority under the Act and the Grant-in-aid Code, is entitled to continue as the Principal in service till she attains the age of superannuation or her service is validly terminated in accordinace with the Rules. Extracted from para 43 of Sr. Philomena's case (1 supra). Ultimately in the back-ground of these principles, the order of transfer of the petitioner from Mehdipatnam Society College to Guntur Society College by the 7th respondent therein was quashed. However, in para 60 of Sr. Philomena's case (1 supra), it was noted that it does not preclude the duly constituted management from taking such action as may be called for after due notice to the petitioner and in compliance with the relevant statutory provisions. The counter affidavits of the contesting respondents show that it is on that basis and due to certain other reasons the imD"gncd order of suspension of the petitioner both as the Principal and the Correspondent, has been passed.
16. The counter affidavits of respondents 7,10 and 16 and certain documents have given a clear picture as to who passed the impugned order of suspension of the petitioner both as the Principal and the Correspondent. While referring to the five members of Mehdipatnam Society as stated above, including the petitioner as per the Bye-laws a body comprising of such five persons is styled as tine governing body /executive body of 16th respondent-Society and it is said to have been re-constituted at the General Body Meeting held on 30-7-1992 as follows:
1. Rev. Sr. Mary Ignatious Loyola : President (R.7)
2. Rev. Sr. Mercella : Vice-President (R. 10)
3. Rev. Sr. Philomena : Secretary/Treasurer (Petitioner)
4. Rev. Sr. Holy Cross : Member (R.13)
5. Rev. Sr. Theophela : Member (R.14) Such a governing body is said to have been recognised by the Director of Higher Education as the Management of the College as per proceedings No.l602/PC/ 3-1-92, dated 13-10-92. It is further found that at the relevant time, the 16th respondent-Society consists of a General Body comprising seven members including the above stated five members and Mother Mary Stella (R.ll) and 1. Petrina (R.12) who were earlier President and Vice-President respectively. appears that this was reported to the Registrar of Societies on 24-8-92 and it as taken on record on 24-9-92. Such a body as detailed above is said to be the Management and administration of 16th respondent-Society to be called as the governing body/executive body as per the relevant provisions of the Act and the rules framed thereunder. While referring to the observations in S/. Philomena''s case (I supra) deciding certain matters as above and in particular the managing body etc., the observations therein that it does not preclude the duly constituted management from taking such action as may be called for after due notice to the petitioner and in compliance with the relevant statutory provisions, has been made a basis to pass the impugned orders. It is pointed out that the General Body of 16th respondent-Society met on 30-7-92 the notice of which was sent to the petitioner under certificate of posting in spite of which she did not choose to attend the meeting and at the meeting, a resolution directing the governing body/executive body to take disciplinary action against the petitioner was passed and accordingly, the governing body/executive body met on 25-8-92 and resolved to issue a charge memo as to why disciplinary action should not be taken against the petitioner. It was further resolved to take steps to dissolve the so-called Board of Management constituted by the petitioner and the Vice-President of the 16th respondent viz., Respondent No. 10 herein, was authorised to carry out the administration of the governing body/executive body and accordingly a charge memo was prepared with reference to the allegations and issued on 15-9-92 and the petitioner was placed under suspension pending enquiry into the grave charges of alleged misappropriation etc. The notice said to have been issued by respondent No. 11 dated 1-7-92 purports to have convened the General Body Meeting on 30-7-92 and the minutes of the meeting shows that out of seven members, the petitioner was absent and the remaining six members representing the General Body passed the resolution as above leading to the impugned order of suspension of the petitioner both as the Principal and the Correspondent. It is apparent that the 'general body', 'governing body/executive body' are used synonymously for the purpose of taking disciplinary action against the petitioner leading to the impugned order of suspension. In the first place, the constitution or reconstitution of such an executive body is doubted inasmuch as the reconstitution of the same much less holding of the general body to pass the impugned order of suspension. There appears to be lot of doubtful circumstances to believe that either there was any reason to constitute or reconstitute the executive body much less to convene the general body meeting to take such action against the petitioner, because in Sr. Philomena's case (1 supra), it was clearly spelt out as to what was the 'management' at the relevant time for the purpose of taking any action against the petitioner. It is also explained therein as to which is the management within the meaning of Section 24 (2) of the Act in that context. Such a management was clearly held to be the Board of Management constituted by the society to bring it within the meaning of Section 24 (2) of the Act. There is a clear departure on the part of respondents 7 and 10 to 14 from what was laid down in Philomena's case (1 supra) which is made a basis to pass the impugned orders. It is rightly pointed out that as on such date, the decision was not yet rendered in Philomena's case (1 supra) and till the matter ended before the Supreme Court dismissing the Special Leave Petition, it was all along being contended that Guntur Society was the management as the parent body entitled to transfer the petitioner as its employee and it could be judicially noticed that the parties were hotly contesting such an issue till it became conclusive by the order of the Supreme Court confirming the decision in the writ appeal. It may be useful to recall 'that the writ appeal involving such an issue was disposed of on 10-8-92 whereas, all the exercise stated above was commenced as early as on 1-7-92 and concluded on 15-9-92, whereas the Special Leave Petition before the Supreme Court was dismissed on 21-9-92 and the review petition upon that came to be dismissed on 14-11-92. Therefore, it is highly unthinkable that such contesting parties on such an important issue would concede the management of St. Ann's College Society, Mehdipatnam as the governing body/executive body to take any action against the petitioner. The contention of the petitioner that she was not served with the notice of such a general body meeting or the meeting by the governing body of which she was a member appears to be not without basis. It is pleaded and contended on behalf of the contesting respondents that the notice of such meetings were sent under certificate of posting. It was rightly pointed out on behalf of the petitioner that all along the notices were sought to be served on the petitioner by registered post and even by paper publication and it is improbable that while such a serious measure was being taken against the petitioner for grave misconducts leading to the order of suspension, the service of notice could have been effected by certificate of posting or that the normal mode of service of notice as above might have been purposely avoided. This Court is not convinced that either the notice of the general body meeting or the notice of the said governing body /executive body was duly served on the petitioner. It is not established by sufficient materials that the petitioner was avoiding service of notices at any stage regarding such proceedings particularly when she was interested in safeguarding her rights as the Principal and Correspondent of the Mehdipatnam Society Colleges and was seriously fighting the litigation as against the contesting respondents throughout. Therefore, on the face of it, the impugned orders which were passed without due notice to the petitioner should be held to be in violation of principles of natural justice and the mandate to issue the notice in Philomena's case (1 supra). Although serious attempts were made to demonstrate that there could not have been such meetings held as alleged due to various circumstances, even without adverting to that, it can be safely concluded that all was not well and bona fide in such exercise on the part of the contesting respondents. In such a situation, the impugned order cannot satisfy the test of an exercise of the disciplinary authority by a duly constituted management.
17. It is also not explained under what circumstances, the body was to be reconstituted in addition to increasing the number of members of such a body from 5 to 7 which is in contravention of Regulation No. 6 of Mehdipatnam Society. Therefore, such a body can never be an executive body within the In aning of Regulation No. 6 of the Regulations to exercise the powers of control ft! management including the discipline of its employees within the (sic) emplation of Regulation III of the Regulations of the Society. Therefore it i never be duly constituted managements of what was expected in the expressions of the Division Bench in Philomena's case (1 supra). 18. It is pertinent to note that in Sr. Philomena's case (1 supra), the Division Bench while dealing with the duly constituted management of Mehdipatnam Society pointedly gave a finding in para 18 of the judgment that at the relevant time, there was a Board of Management of which Archbishop of Hyderabad Dr. S. Arulappa was the Chairman and that was the Management which must have appointed the petitioner as the Principal and Correspondent of the College of the Society. It is the case of the contesting respondents and also not disputed by the petitioner that such a Board of Management was nominated by the petitioner herself in correspondence with the authorities of the Government, University and the University Grants Commission. Respondents 1 and 2 - the Government of Andhra Pradesh and the Commissioner of Collegiate Education have admitted it and have questioned the competence and the legality of the reconstitution or the constitution of the Committee of Management as claimed by the contesting respondents in their counter affidavits. Respondent No. 16 whose contentions are adopted by Respondents 7 and 10 has pointedly stated in para 13 of the counter affidavit that the petitioner constituted the Board of Management headed by Archbishop Dr. S, Arulappa without the knowledge or consent of Respondent No. 16 with the following members:
(i) Chairman : Rev. Dr. S. Arulappa, Archbishop
of Hyderabad
(ii) Members nominated for : (1) Rev. Dr. S. Arulappa
a period of 2 years by the Trust/ (2) Dr. (Mrs.) Neena Desai
Management of the College (3) Mr. B. Ramakrishna
(iii) Two senior most Professionals : Prof. E.G. Parameswaran
of the College
(iv) One nominee of the University : Prof. E.G. Parameswaran
(v) One nominee of the State : Mr. M.V. Venkat Reddy
Government
(vi) One nominee of the U.G.C. : To be nominated by the UGC
(vii) Secretary, Principal and : Dr. Sr. Y. Philomena
Correspondent
It is also pointed out therein that both the Chairman and the members have resigned from the Committee for certain reasons. It is also clear from the documents that such a Board of Management was actually constituted by the petitioner to the knowledge and with the consent of the concerned authorities and they have actually resigned. Copies of the correspondence in this regard between the petitioner, the proposed Chairman and the Members, which are dated ranging from 28-11-91 to 24-10-92 clearly establish that such persons as above were invited to be the Chairman and the Members of the Board of Management; they accepted the same as a great honour and later on, for certain justifiable reasons disassociated or resigned from the same. Therefore, there was such a Board of Management not only as a matter of fact detailed, but also as a matter of legal finding in Sr. Philomena's case (I supra). It is apparent that the Chairman and the Members resigned from their positions as such only from July 10 to October, 1992. This fact is practically conceded by the contesting respondents as it can be read in the counter affidavit of Respondent No. 16 that -under such circumstances, the general body/governing body/executive body met on 25-9-92 and decided to constitute a Board of Management. In other words, when such a Board of Management was still in existence, till October, 1992, it is highly unthinkable that it could be reconstituted without the notice or the consent of the petitioner. The locus standi or the propriety of the petitioner constituting such a Board of Management is questioned by the contesting respondents. Significantly they have not challenged the bye-laws of the Mehdipatnam Society which have been still in force and which were in force at the relevant time when the Board of Management was constituted by the petitioner. While defining the powers and duties of the governing body and the President of the Society, the powers of the Secretary are also defined. Sub- clause (3) of Article II of the Bye-laws reads as follows:
"Secretary & Treasurer: He is the Chief Executive Officer of the Society and custodian to all records relating to the Society and custodian to all records relating to the Society and Correspondent on behalf of the Society. He has to take on record of all minutes of Society to convene both the bodies of the Society with the permission of the President. He is also the responsible person of all the financial transactions relating to the Society. He has to maintain accounts properly along with the vouchers. He has to prepare the budget and expenditure statement of the Society. He has to operate the Bank account of the Society with the President either singly or jointly."
It is apparent that it was the petitioner who could have convened the general body meeting or any other meeting of the Society being the Chief Executive Officer of the Society. If the other members of the executive body felt that the petitioner was not co-operative in convening the meeting, perhaps, it was open for them to move either this Court or the other Courts wherein civil proceedings were pending, to issue directions to the petitioner to convene such a meeting or by appointment of a Commissioner etc., as the circumstances may deem fit. Therefore, the inference may not be improper that either such meetings could not have been held or were not held in accordance with law or the bye-laws of the society or that the interested persons who were against the petitioner which need not be mentioned, managed to bring about certain documents by convening such a meeting conveniently as all the other members of the executive body except the petitioner appear to be favourable or in the camp of Respondents 7 and 10 who have been fighting the litigation as against petitioned up till today. Again that is sufficient to hold that there was no duly constituted management of Respondent No. 16 to pass the impugned order of suspension against the petitioner.
19. As laid down in Philomena's case (1 supra) Respondent No. 16 viz., the Mehdipatnam Society is governed by the provisions of the Act inasmuch as the provisions of the Grant-in-Aid Code wherein the Management/Board of Management of the Society has to be constituted in accordance with the guidelines issued by the concerned authorities, U.G.C. including the Government Orders etc. That has been very well demonstrated by both the sides. In fact many of the orders issued by the concerned authorities have gained the statutory status by virtue of A.P. Private Educational Institutions Grant-in-Aid (Regulation) Act, 1988. Section 6 of the said Act contemplates that the provisions of the Act overrides anything contained in any other law for the time being in force including the judgment, decree or order of any Court or authority to the contrary. It has got certain drastic consequences also for violating the instructions issued under the Grant-in-Aid Code. There may not be any need to elaborate this aspect in view of the clear findings in this regard in Philomena's case (1 supra). It is conceded that as per the guidelines, there could not have been more than seven members in the Board of Management as was done by the petitioner of whom three members could be nominated from among the members of the Society. It appears that after Respondents 10 to 15 took over the control of the colleges and the societies in question, they have proposed to constitute the Board of Management which in fact is inconsistent with what is stated in the counter affidavit of Respondent No. 16. The proceedings dated 19-1-93, a copy of which is produced, shows that there are as many as four persons inclusive of Respondent No. 7, Respondents 11 and 13 were also included in addition to other nine members. It is not demonstrated that such number of members could be within the rules. On a perusal of the relevant documents in this regard, this Court is not convinced that such a body could be constituted in the absence of the petitioner being the Principal and Correspondent of the College Who continues to be as such pending enquiry. Therefore, even assuming that such a body could be reconstituted for any reason, it cannot be termed as the duly constituted committee. If that is the duly constituted committee, then the action taken by the Committee constituted in the General Body Meeting by the members of the executive body of the society to issue the impugned order of suspension, cannot be held to be duly constituted body for the purpose of definition of 'Management' under Section 24 (2) of the Act much less for the purpose of the expressions in Sr. Philomena's case (1 supra) as a duly constituted Management. In conclusion, it must be stated that the impugned orders are passed by the so-called body or Management, without the legal status and without jurisdiction and therefore, they can be called as illegal and unenforceable and thus vitiated.
20. There is no controversy that in addition to the powers of the Management under the Regulations of the Society in question and the Grant-in-Aid Rules, the disciplinary action against the petitioner by the alleged management is purported to have been taken under Section 79 of the Act. The scope and the effect of such provisions have been explained and concluded in Philomena's case (1 supra) effecting the service conditions and the rights of the petitioner as Principal and the Correspondent of the Society. The impugned order of suspension was obviously issued under Section 79(3) of the Act. Such orders are totally governed by the legal intent of Section 79(2)(3) and (4) of the Act. The repetition of the same becomes necessary to read thus:
"Section 79(1).......
(2) An inquiry under sub-section (1) shall be completed within a period of two months from the date of communication of charges against the employee.
(3) (a) No employee shall be placed under suspension except when an inquiry into the gross misconduct of such employee is contemplated.
(b) No such suspension shall remain in force for more than a period of two months from the date of suspension and if such inquiry is not started and completed within that period, such employee shall, without prejudice to the inquiry, be deemed to have been restored as employee:
Provided that the competent authority may for reasons to be recorded in writing, extend the said period of two months for a further period not exceeding two months if in the opinion of such competent authority the inquiry could not be completed within the said period of two months for reasons directly attributable to such employee.
(4) Every such employee as is placed under suspension under sub-section (3) shall be paid subsistence allowance at such rates as may be prescribed during the period of his suspension."
The implications in the provision are mandatory. An enquiry instituted under Section 79(1) of the Act shall be completed within a period of two months from the date of communication of the charges. The order of the suspension shall be co-extensive with such a period and comes to an end on the expiry of the period of two months from the date of suspension. If either the inquiry is not started or completed within the period of two months from the date of suspension, the employee so suspended shall be deemed to have been restored. Such period of two months can be extended for a further period not exceeding two months if the inquiry could not be completed within the initial period of two months for reasons directly attributable to such employee. As a whole, the period of suspension cannot exceed four months from the date of suspension or even from the date of communication of charges. Immediately on the expiry of such period of four months, the employee so suspended shall be deemed to have been restored as employee. The whole object of mandatorily prescribing a definite period of four months appears to be that not only the interests of the employee of such an institution/society are not suffered, but also the interests of the administration and the students of the institutions should not suffer. Particularly if an employee on the teaching staff like a Principal and if an employee on the staff of the administration like the petitioner is suspended, unless it can be suitably substituted by alternative arrangements, the interest of the institution and the colleges were bound to suffer. The dates of the impugned orders of suspension and the memo of charges are 15-9-92. In fact it was got extended by respondent No. 10 claiming to be the authorised representative of the governing body through the competent authority by addressing a letter dated 18-11-92. The initial period of two months expired on 15-11-92 and the extended period came to be expired on 15-1-93. Therefore, as rightly contended by Mr. Parasaran, the learned Advocate for the petitioner the impugned orders of suspension are not in force since 15-1-93 and thus they have become ineffective and the petitioner should be deemed to be restored as an employee both as Principal and Correspondent in the Society from 15-1-93 regarding which this Court should give effect by issuing a formal direction in the nature of mandamus. It is rightly contended that the deemed provision in statute creating a legal fiction, deserves to be given its true and full effect.
21. However, the learned Advocate for the contesting respondents Mr. C.V. Mohan Reddy, has contended that notwithstanding the deemed provision, the Management or the employer has the discretion not to allow the employee to function, although may be bound to pay the salary and emoluments etc., within the meaning of restoration of service as an employee. It is also his contention that notwithstanding the desire of the management to restore the petitioner as an employee subject to such terms, she has not allowed the Management to complete the enquiry within the stipulated initial period of two months and the extended period of two months due to her own legal proceedings restraining the management from commencing or completing the enquiry.
22. There cannot be any doubt that the deemed provision in a statute creates legal fiction which should be given full effect and the law appears to be settled in that regard. In Union of India v. M/s. Jalyan Udyog and Anr., ., where a notification created a legal fiction viz., the vessel must be deemed to have been imported for being broken-up when it is broken up, though as a matter of fact, the import was at an earlier point of time, it was held that "it is well settled that where a fiction is created by a provision of law, the Court must give full effect to the fiction, and as is often said, it should not allow its imagination to be boggled by any other considerations and that fiction must be given its due play, there is to be no half-way stop." To employ the same language the legal fiction created under Section 79(2) and (3) of the Act containing deemed provision should be given full effect and should not be allowed to be boggled down by imagination by any other considerations and it must be given its due play and there is to be no half-way stop. In M. Chandrasekhara Rao v. The Secretary & Correspondent Sri Sarvodaya College, Nellore, 1988(1) ALT 651., while dealing with the said provision, it has been held that "normally it is axiomatic that when the Legislature has shown its animation in mandatory language and period of suspension is specified within which the enquiry is to be completed and omission thereof has the effect of restoring the suspended employee to duty the management has to complete the enquiry within the period of two months from the date of suspension and pass appropriate orders. If it is not completed at the most within a further extended period of two months, if the delay is attributable to the conduct of the employee the employee is entitled to reinstatement to service.........The reinstatement into service would give him a statutory right to continue as an employee viz., with all the rights to which he is entitled while holding the office as an employee i.e., salary, allowances, etc......." Therefore, with the normal intent of such a legal fiction in the legislation with mandatory implication, the petitioner is entitled to be restored to service as an employee viz., Principal and Correspondent restoring all her rights in such a status, even assuming that the initial period of two months was to be extended due to the delay attributable to the petitioner in view of certain orders passed in the civil proceedings. Mr. C.V. Mohan Reddy, the learned Advocate for the contesting respondents wants to impress that the legal fiction of deemed provision in a statute cannot always be mandatory and having due regard to the facts and circumstances of the case, may be regulatory or directory, because according to him, the restoration of service of an employee in such a situation may depend upon the nature and the gravity of the charges and the impact of the restoration on the exgencies and the interests of the administration. That is how according to him, certain precedents have given effect to such an interpretation. He is fortified himself with a pronouncement of the Supreme Court in Consolidated Coffee Ltd. v. Coffee Board, Bangalore, ., in support of his contention. The Supreme Court was concerned in interpreting the deemed provision in Sections 3,4 and 5(3) of the Central Sales Tax Act, 1956 under Chapter II with the heading "Formulations of Principles for determining when a sale or purchase of goods takes place in the course of inter-State trade or commerce or outside a State or in the course of export or import". In such a situation, it was held that the said provisions intended the formulation of principles. It was further held that "the word 'deemed' is used a great deal in modern legislation in different senses and it is not that a deeming provision is every time made for the purpose of creating fiction. A deeming provision might be made to include what is obvious or what is uncertain or to impose for the purpose of a statute an artificial construction of a word or phrase that would not otherwise prevail, but in each case it would be a question as to with what object the legislature has made such a deeming provision."
23. Another precedent relied upon by him is Balvantrai Ratilal Patel v. State of Maharashtra, ., wherein it was held that suspension of an employee pending further orders in view of a criminal trial does not end automatically. He has also depended upon Sheikh Mohammed Sayeed v. Assistant Collector of Customs for Preventive, . wherein the period of show-cause notice issued under SectionllO(2) Proviso and extended under Section 124 of the Customs Act, 1962 lapsed due to the petitioner obtaining an order of injunction, was held to be not effective as the petitioner cannot plead lapse of time when he had himself obtained an order of injunction against the enforcement of such an order. Mr. Mohan Reddy, the learned Advocate for the contesting respondents is not totally incorrect in presenting such a legal principle. The legal fiction created due to the deemed provision in the statute and its effect depends upon the purpose for which it is incorporated in a statute, and the order of suspension may not automatically come to an end by lapse of time at all time. It depends upon the intention of a particular legislation in which such a deemed provision is incorporated and the facts and circumstances of each case. That is how, the principles laid down in the precedent supra were generally in favour of giving full effect to legal fiction, however, depending upon the operation to restore the employee to service in a particular situation. Therefore, it is open to the Court to examine and interpret the object and the scope of the statute to know whether the legal fiction in the deemed provision should be given effect to in a particular manner and to a particular extent. If we examine Section 79(2), (3) and(4) of the Act, there cannot be any doubt about the intention of the legislature that at any cost, the enquiry should be completed within a period of two months from the date of communication of the charges against the employee and the period of suspension cannot be kept in force for more than four months as a whole including the extended period of two months and to restore the employee to the same position and status as he or she occupied as on the initial date of order of suspension, however, subject to the facts and circumstances in a particular situation. To that extent, Mr. Mohan Reddy, learned Advocate for the contesting respondents is right in importing the interpretation that the restoration of a suspended employee to his/her previous position on the expiry of the stipulated period cannot be automatic in all circumstances. In fact his contention has a support in the principle adopted in Chandrasekhara Rao's case (9 supra). While laying down the principle as above that the employee will be reinstated to service on the expiry of the period of two months from the date of suspension without further extension it was examined whether a direction should be given to give effect to it regarding the reinstatement of the employee where an enquiry into grave charges of misconduct like misappropriation and fabrication of records were pending against the employee. The right of the individual and the larger interests of the institution/society were considered in such a situation. It was held that where grave charges of misconduct were attributed to the employee, then the Court or the competent authority would strike an equi-balance between the right of the employee vis-a-vis the right of the institution/society and the discipline among the co-employees. It was further held that the consideration should be of the particular facts and circumstances and the effect of reinstatement on the morality that generates among the employees as a consequence thereof. On the facts of the said case, a direction was issued to pay the salary and allowances to the employee instead of directing reinstatement. Therefore, an order to be passed either by the Court or the Management or the employer, may depend upon the facts and circumstances of each case. The contention of Mr. Parasaran, the learned Advocate for the petitioner that the right of the petitioner to work is a fundamental right and on restoration due to the said provision, to service, such a right cannot be given effect to, by the deemed provision merely by paying the salary, emoluments etc. has no force. This Court is not convinced that having due regard to the rights and liabilities of the master and servant in relation to their relationship either by contract or statute, may create a fundamental right to the employee to compel the master to extract work from him although he may be prevented from doing it within the rights of the master having due regard to certain peculiar circumstances and situations. Neither the expression 'suspension' is defined, nor explained either in the Act, the Rules framed thereunder or the Grant-in-Aid Code or U.G.C. Guidelines etc. Therefore, the meaning and scope of the expression 'suspension' used in Section 79(3) of the Act should be understood within the known and settled legal principles in regard to the concept thereof.
24. The trite law relating to 'suspension' can be stated in brief: Whenever a disciplinary action or departmental enquiry is contemplated against an employee in view of the criminal offence being under investigation, enquiry or trial, the disciplinary authority may place the employee under suspension. The object of placing the employee under suspension is to keep him away from the position where he can interfere with the conduct of the enquiry or tamper with the documentary or oral evidence in any manner or where, having regard to the nature of the charges against him, it is felt that it would be unsafe to continue to vest in him the powers of his post. It is for the employer or the disciplinary authority or competent authority to consider all the facts and circumstances of the case and in its discretion, to place an employee under suspension. There are three categories of suspension viz., (1) suspension as a measure of protection, (2) suspension as a measure of punishment and (3) suspension to forbid him from discharging his duties during the pendency of the enquiry. The first category of suspension can be exercised only if there is a provision for exercising such powers either under the contract of employment or the provisions regulating the conditions of service. The second category also depends upon the same conditions. But the third category of suspension is the right inherent in every master; he can forbid his servant from doing work which he had to do under the terms of the contract or the provisions governing the conditions of service, at the same time keeping in force the master's obligation towards the servant. In the case of suspension as a measure of penalty or during the pendency of a departmental enquiry, the salary or allowances which a public servant is entitled to, will be governed by the rules. Where a master suspends his servant in the absence of any specific power under the contract of employment or the rule governing the conditions of service, the suspension falls into the third category and the master is liable to pay the full wages or salary to the servant. (Vide Chapter VII pages 483 and 484 in 'Services under the State' by Justice M. Rama Jois, 1987 Edition by N.M. Tripathi Pvt. Ltd., Bombay).
25. The law also appears to be certain that the order of suspension normally continues until it is vacated. That is how having due regard to the facts and circumstances of the case in Chandrasekham Rao's case (9 supra) definite directions were issued by the Court while directing the restoration of an employee into service due to the deemed provision. We respectfully agree with the view of the learned single Judge who rendered the decision in that regard.
26. However, no such situation has arisen in this case since it was for the duly constituted management to take such a decision subject to the directions of the Court. It is not the case of the contesting respondents that after the expiry of the period of four months from the date of the impugned order of suspension, it has been extended by the duly constituted management with the approval of the competent authority having due regard to the nature and the gravity of the charges against the petitioner. On a careful examination of the proceedings between the parties both in this Court and other courts, this Court is not persuaded to accept the contention of the learned Advocate for the contesting respondents that it was only due to the conduct of the petitioner, the enquiry could not be completed against her, as both the sides have not spared any pains in preventing each other from proceeding further in any direction except to fight against each other Even then, the delay if any, is directly attributable to the contesting respondents and not the petitioner. Therefore, even on the ground of lapse of the impugned order of suspension, the petitioner is entitled to be restored as the Principal and Correspondent as claimed by her.
27. Since the impugned order of suspension and the criminal proceedings against the petitioner in Cr. No. 86/92 are challenged on similar grounds both regarding the competence of the authority which passed them and initiated them and on the ground of malice /mala fides and since they involve common questions of law and facts, they will be considered and disposed of together with common discussions. At this stage only the first question about the legality of the criminal proceedings can be concluded as illegal since as in the case of the impugned order of suspension, they are also initiated by a body which was not duly constituted. It is only after noting certain misconducts on the part of the petitioner to initiate disciplinary proceedings in the General Body Meeting dated 30-7-92 and it is only after issuing the impugned order of suspension dated 15-9-92, the complaint to the concerned police was sent by respondent No. 10 in writing upon which Crime No. 86/92 was registered against the petitioner, on the very same day i.e. on 23-11-92. All the allegations against the petitioner in the F.I.R. and the complaint are similar to the allegations found in the charge memo issued on 15-9-92. The counter affidavits of respondents 10 and 16 clearly indicate that the matter in relation to certain offences alleged to have been committed by the petitioner were thought over and found out only after the decision in Sr. Philomena's case (1 supra) was rendered and when the action was contemplated in view of the liberty said to have been granted in the judgment. From the in-numerable documents and the pleadings between the parties in various proceedings, it is apparent that as long as the question of transfer of the petitioner to Guntur Generalate was being litigated till the review petition was disposed of by the Supreme Court, there was no contemplation in the minds of Respondents 7,10 and others about such alleged misconduct or the alleged offences said to have been committed by the petitioner. Therefore, the simple inference should be that both the impugned order of suspension and the initiation of criminal proceedings are the outcome of the simila: events and the conduct of the persons and in particular Respondent Nos. 7 and 10 who have taken the lead in doing the same subsequently, in the garb of Respondent No. 16. Therefore, as in the case of the impugned order of suspension which is held to be illegal, without jurisdiction and opposed to principles of natural justice, even the criminal proceedings should be put into similar consequences as the one coming out of incompetent body which cannot be normally sustained. The whole episode leading to this stage of proceedings commenced with the order of transfer of the petitioner from Mehdipatnam Society Colleges to Guntur Society and the Generalate which was successfully challenged in W.A. No. 612/92. Such an order of transfer was held to be illegal and without jurisdiction. While dealing with the question whether such an order violated the rules of natural justice and in violation of the guidelines of the regulations, rules etc., relying on number of precedents, it was held that an order of transfer will be vitiated if it is made in colourable or mala fide exercise of power, if it is arbitrary, if it is made not by a competent authority in bona fide exercise of power and made for settling scores and by exercise of abuse of power. It was also held that though such an order of transfer is worded in innocuous terms although really camouflages, collateral or oblique purposes like unduly favouring one at the expense of another or penalise or victimise or harass the concerned employee, it would be vitiated by mala fides. In Philomena's case (1 supra) in conclusion, it was held that "those principles shall govern this case also". In other words, there was already a judicial finding that the order of transfer of the petitioner for which Respondents 7 and 10 were responsible, was vitiated by mala fides due to the reasons stated above. Further more, in Philomena's case (1 supra), a writ of mandamus was issued directing continuance of the petitioner in the post of Principal and Correspondent of St. Ann's Degree College and Post-Graduate Centre and as Correspondent of St. Ann's Junior College, Mehdipatnam. Instead of obeying such a mandate and in spite of certain findings against the contesting respondents, they ventured to isolate some expressions in Philomena's case (1 supra) which were made in the background of the legality or otherwise of the order of transfer to be effected by a duly constituted management. It has been ventured to avoid the decision and direction of this Court which was confirmed by the Supreme Court by resorting to the impugned order of suspension and the initiation of the criminal proceedings to put an end to the career of the petitioner as the Principal and Correspondent in the said institution and as a respectable person in the society. In Philomena's case (1 supra) it was clearly held at para 58 that the effect of the order of transfer was clearly to terminate her services as Principal of those Colleges.
28. Therefore, what was to be avoided and directed by the order of this Court by issuing a writ of mandamus to restore her rights as such has been sought to be achieved by means of the impugned order of suspension and the initiation of criminal proceedings. When violation of such an order of the Court was alleged against the contesting respondents, not only an attempt is made in the counter affidavit of Respondents 7, 10 and 16 to challenge the findings in Sr. Philomena's case (1 supra) although confirmed by the Supreme Court, but also in para 12 of the counter affidavit of Respondent No. 7 she has stated as follows:
"I submit that if the actions of the St. Ann's Convent, Mehdipatnam are contrary to the judgment of the Hon'ble Court, it is open to the petitioner to initiate appropriate proceedings under Contempt of Courts Act against the concerned persons or the bodies."
Thereby it is demonstrated that the concerned persons or authorities who issued the order of transfer and pursuing the litigation are prepared to do anything even at the cost of committing contempt of Court by violating the Older and to suffer the consequences. No other inference is possible from such a context.
29. As already pointed out even before the Division Bench had heard and disposed of Sr Philomena's case (1 supra) wherein the Guntur Society was being projected as the Management which it was pursued up to Supreme Court. Simultaneously grounds have been prepared by Respondents 10 to 14 to avoid the decision of the Court in anticipation. It has resulted in various proceedings both in the Civil Court, this Court and before certain authorities due to the conduct of Respondents 7 to 14 preventing the petitioner from either continuing as the Principal and the Correspondent if she were there on the date of the transfer order or not to allow her to get the same in spite of the decision of the Court. Although the mere fighting of the litigation itself with certain stands by itself may not amount to mala fides the manner in which it is fought should expose the inner intent of malice or mala fides on the part of such persons. That has actually happened in this case particularly in regard to Respondent Nos. 7 and 10.
30. The order of transfer initially did not indicate the reasons and at various stages, it was called as for administrative purposes, religious purposes etc. Such a step is already found to be colourable and camaflouge and tainted with mala fides as observed in Sr. Philomena's case (1 supra). On a careful examination of the materials before this Court, there appears to be clear indication of a clear confrontation between an individual like the petitioner and a body of persons like respondents 7 and 10 to see that at any cost, the petitioner should not be allowed to continue as the Principal and Correspondent having the control over Mehdipatnam Society and Colleges and should be brought under the control of Guntur Generalate and the religious body. The reason for such a confrontation is exposed in various ways. The plea of the petitioner that the malice or malafides are due to personal reasons finds not traverse amounting to admission. In her affidavit in W.P. No. 7412/92, the petitioner has given various reasons for respondent Nos. 7 and 10 to be against her since several years. It is categorically stated that respondent No. 7 is her cousin and respondent No. 7 (sic. 10) hails from her nearby village of Guntur district and related to her. It is further stated therein that there are differences among their family members. (Perhaps between the family members of the petitioner and respondents 7 and 10). This was not denied in the counter affidavit of respondent Nos. 7 and 10 in the said proceedings. Therefore, it is a case of family feud resulting in personal mala fides.
31. The petitioner claims to be the founder member and Correspondent of Mehdipatnam Society and the institution, took lot of interest in improving the buildings and the economic standards and the public reputation. It is also claimed that there was a function attended by several dignitaries of the religion and the society wherein the petitioner was praised and blessed in which respondent No. 7 was present as the religious superior. The Silver Jubilee function of the institution was also celebrated on 7-1-90 wherein many well wishers and admirers including the members of their relegion appreciated the achievements of the petitioner and therefore, it is alleged that this created jealousy in the minds of respondents 7 and 10. Respondent No. 7 in the counter affidavit in the said proceedings while not denying such averments has only remarked that no single individual can take credit for such achievements but it was the collective efforts of the entire society and the credit has to be given to all the members of the Society and what all the petitioner has done was only in the capacity of a member of the Society. The petitioner has also indicated in para 3 of the affidavit in W.P. No. 7412/92 that respondent No. 7 and her associates have developed deep rooted rivalry with her which is a matter on record, wherein she tried to prevent the petitioner from getting positions in the religious society and acted in an unreasonable manner to canvass against her during periodical elections in religious congregation at Guntur. Therefore, the reason for the confrontation between the petitioner and respondents 7 and 10 also appears to be due to the elections and the infights to occupy positions in Guntur religious body. That is sufficient to draw the inference of malice or mala fides by respondent Nos. 7 and 10 and her associates as against the petitioner since beginning and at various stages.
32. The petitioner has brought out several circumstances to show that all efforts were done by respondents 7 and 10 and their associates to some how prevent the petitioner from getting her positions in St. Ann's Society, Mehdipatnam and the Colleges and to bring her within the fold of Guntur religious generalate and also to remove her from the religious order. That is not only indicated in the pleadings but also in several documents. During the pendency of the previous writ proceedings and even after the disposal of the writ appeal in Philomena's case (1 supra) efforts were continued to somehow force the petitioner to go back and stay in Guntur generalate thereby preventing her from remaining and working in St. Ann's Society at Mehdipatnam in any capacity and to pressurise and persuade her either to obey the order of transfer or even resign from the post of Principal and the Correspondent of the said College and the institution. Such documents are not seriously challenged by the contesting respondents. Before the Supreme Court in the review petition it was made to appear that the transfer was onr eligious grounds, however, again calling it on administrative purposes. The context in which it is pointed out is to gather that the purpose of transfer was not either due to the petitioner flouting the religious discipline or to improve her position by bringing her back to religious discipline, but the transfer was only on administrative purposes (1 supra). The religious purpose here and there used only appears to be out of context. Even on 29-11-92 it is reported by the former Mother Superior to respondent No. 7 that so far she had not joined the community at Guntur. On 27-10-92 an appeal is said to have been issued to the petitioner by the Catelock Bishops of Andhra Pradesh as follows:
"......The Andhra Pradesh Bishops' Conference is pained at the turn of events in the past few months in matters connected with St. Ann's College Mehdipatnam, Hyderabad and Sr. Philomena. While appreciating the services rendered by her to the Congregation in developing the college, we the Cathelic Bishops of Andhra Pradesh having carefully discerned the matter oppose and condemn her present behaviour of refusing to follow the Religious code of conduct, not accepting the transfer order- challenging the same in the Courts, taking the issue to the streets, living outside the (convent) Community, which is a gross violation of conscrated life and also a great scandal to the public....."
It is pertinent to note that by then, the decision in Philomena's case (1 supra) was already rendered quashing the transfer orders. Inspite of it, such an expression in the appeal would be nothing but surpassing the order of the Court, condemning the conduct of the petitioner in challenging the order of her transfer in Courts as if she has taken the matter to streets. Perhaps, in their conception, taking the issues to Court, would mean taking the same to the streets. It was rightly pointed out that the persons behind such an appeal could be none other than the persons like respondents 7 and 10. One more notification to public purported to have been issued by C.R.I (Conferernce of Religious India), Andhra Pradesh is as follows:
".......The recent happenings in St. Ann's College, Mehdipatnam are shocking because Sr. Y. Philomina, by not accepting the transfer in the right spirit, challenging the same in the Court, living outside the convent and taking this issue to the streets has tarnished the image of St. Ann's Congregation and religious life itself and has quashed grave scandal to the public.
We appeal to Sr. Y. Philomina to desist from the present course of action and resign without delay from the posts of Principalship of both the Degree and Post Graduate Colleges and the Correspondentship of all the three colleges including the Tunior College. Mehdipatnam. Hyderabad."
It is even doubted whether such appeals were issued by such persons or whether they were issued due to the pressure of respondents 7 and 10 and the persons interested in her. Thereby the purpose and intent of such persons behind them, could be none other than a vindictive personal malice or mala fides. It appears that the petitioner suffered some serious set back in her health and had to take treatment in U.S.A. and thereafter, she had some problems which according to her, did not permit her to move out of Hyderabad and to stay at Guntur. Therefore, in her letter addressed to the former Superior General, Guntur (perhaps, respondent No. 7) pleading her inability to go to Guntur as she needed medical treatment at Hyderabad, sought her permission to be outside the convent at Guntur for a period of three years so that she could improve her health. In reply to this, respondent No. 7 in her letter dated 26-12-91 pleaded her inability to accord such a permission due to the following four reasons:-
"(1) The Church Law and the Constitutions and the Regulations of our Congregation do not allow it;
(2) On Health grounds you want to stay outside the Convent. When you are not well, how can you work in the College?
(3) Your stay outside the Convent and your continuance of the work in our College cannot go together. They are quite contradictory in terms.
(4) Indiscipline and slackening will make a place in the Congregation because if we permit one Sister, we have to permit all the Sisters in the Congregation on Health grounds etc."
Ultimately in her letter dated 26-12-91, respondent No. 7, the Mother Superior General of Guntur Generalate while rejecting the prayer of the petitioner as above informed her as a last choice as follows:
".....I along with my Consulators feel that you should be relieved of all the responsibilities both in the community and in the college and given an opportunity to recoup your health. You are important for us. You need a complete rest that makes you free from both the community and the work in the college so that you can fully recover and continue to serve the congregation in better health and fitness for many more years to come. It is our duty to take care of you with utmost consideration, love and concern. We will appoint somebody else in your place to work as the Principal of our College.
Yours request for permission to stay outside the convent and attend the work in our college for a period of 3 years can be granted only when you leave both the community and the work in the college. Please let me know how soon you would like to avail yourself of this beautiful opportunity of going on a complete; rest."
Mr. Parasaran, the learned Advocate for the petitioner was right in commenting upon the above letters that the expressions therein were sarcastic, cryptic and a finality in the relationship of member in the religious Generalate and the persons in charge of it asking the petitioner to choose to be out of it, if she so desired and at any rate, she will not be permitted to remain at Hyderabad. This is attacked as a final malacious blow given by respondents 7 and 10 to the petitioner. In fact while such exercises were going on, Dr. Arulappa, Archbishop of Hyderabad, while appreciating the services of the petitioner to the cause of education and the religious order and by going through the correspondence between them, advised respondent No. 7 and others as follows:
"......Your decision therefore, amounts to condemning a person for her merits. It would be very wrong to trouble her in this manner, since I also saw the correpsondence between both of you relating to the abortive attempt to change the correspondentship of both the colleges by replacing her with a junior sister. I am sure you would receive my opinion in the right earnest and take my advice and help Sr. Philomena by allowing her to stay outside the convent on health grounds and she should function as the Principal and Correspondent of the institution. I am sure Sr. Philomena as a member of the Society as well as a responsible citizen would never fail in her task and only bring great prestige and distinction to all of us."
Therefore, it is doubtful whether at any stage either Mr. Arulappa the Archbishop or any other person like him were against the petitioner to issue such appeals and also they were against respondent No. 7 and others in acting against the petitioner in such a manner. That adds to an inference that the whole vendetta by respondents 7,10 and such other persons against the petitioner was only due to personal malice or mala fides. Here, it may be relevant to note that the petitioner was allowed to stay in Hyderabad to function and work for Mehdipatnam Society for number of years for almost over a dacade when Guntur Generalate had no objection to ask her to remain out of Guntur and work without offending the religious discipline and suddenly it appears after all the above events, they realised that the petitioner cannot be allowed to remain out of Guntur to maintain the religious discipline. That shows the degree of malice as against her as alleged. In the additional counter affidavit filed on behalf of the 16th respondent, it is stated in para 2 before conclusion, that the Central Society of St. Ann's, Guntur expelled the petitioner from the religious order i.e. from the Society of St. Ann's on 19-1-93. Therefore, from the above correspondence and the above fact, the inference must be that the petitioner is ultimately removed from the religious order of Guntur. This has some relevance in view of the contentions raised by the contesting respondents that the petitioner not being a member of the religious order, cannot be a member of the Executive Body or the Managing Body of Mehdipatnam Society, thereby to understand that they have tried to succeed to disqualify her to continue in any such capacity at any cost. That also exposes the malice or mala fides on their part.
33. The last but not the least attack of mala fides against the petitioner appears to be the wide publicity given in the press about the events and her conduct to give an impression that she does not deserve to serve as the Principal and the Correspondent of such institution much less as a member of the religious order. In the Deccan Chronicle, an English News Daily, dated 12-6-92 the public intimation of the transfer of the petitioner from Mehdipatnam society to Guntur Society was published. No reasons are assigned as to why public intimation was necessary for her transfer. Secondly such an intimation is published in the news paper with her photograph. It is not the case of the contesting respondents that either there was a practice or procedure in the institution to publish such notifications with the photographs of the concerned persons or that such notifications with photographs were necessary to fix the identity of such a person. When questioned by this Court during arguments, the learned Advocate appearing for the contesting respondents could not give any reason as to why this has happened. That speaks of some personal reason to tease or expose the petitioner for some public consequences. In the press report in the Deccan Chronicle dated 15-6-92, respondent No. 7 reacted sharply to the resolution passed condemning the order of transfer of the petitioner as unlawful, unethical and arbitrary as per the expressions of the staff of the Mehdipatnam Society Colleges. She has clarified that such a transfer was on religious grounds and tried to convince such persons. The transfer order of the petitioner evoked lot of public reaction as per the press reports dated 17-6-92, 18-6-92 etc. in the Deccan Chronical news papers. In the press report in the same news paper dated 8-10-92, respondent No. 10 while narrating the events leading to the order of transfer and justifying it has expressed in her own words:
"........The ideal way is to accept the transfer and go to Guntur. If she rallies round the Courts, we too are forced to take legal action against her for her irregularities. Then she will land up in jail rather than in the Principal's room."
Respondent No. 10 thereby wants the petitioner at any cost, to accept the order of transfer and go to Guntur instead of approaching Courts; or else, instead of landing in Principal's room she will land in jail. That not only expresses her intention to impress upon the petitioner that nothing will happen if she go to Courts and even if she succeeds, and that she would land in jail instead of Principal's room, if she rallies round the Courts. The contempt in the expression to the Court is so apparent and the malice towards the petitioner by respondent No. 10 is also crystal-clear. It is pleaded for the petitioner that she was nominated as a Member in the Osmania University in some position and that was also a factor which induced respondents 7 and 10 to hurl personal vendetta against her.
34. So, with the totality of the above circumstances, it is easy to conclude that all the events leading to the impugned order of suspension and the initiation of the impugned criminal proceedings were for no other reason than the malice or the mala fides on the part of respondents 7,10 and her associates as against the petitioner in addition to loads of bias emanating therefrom against her. All the circumstances are considered together to find out whether the allegations of mala fides are established although even a single allegation if established, will be so serious as to lead an inference of mala fides. Such approach appears to be in tune with the settled law in precedents like State of Haryana v. Rajendra, . The region, province and functions of malafides and bias have their roots in the administrative law within the doctrine of principles of natural justice. As a whole, the acts of contesting respondents as against the petitioner should be tested within the scope of offending or affording the principles of natural justice. In AK Kraipakvs. Union of India, ., it was propounded that:
"The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, they do not supplant the law of the land, but supplement it."
The first principle of natural justice consists of the rule against bias or interest and is based on three maxims-viz., (1) No man shall be ajudge in his own cause, or the deciding authority must be impartial and without bias, (2) justice should not only be done, but manifestly and undoubtedly be seen to be done and (3) Judges, like Caesar's wife should be above suspicion. There are three types of bias viz., (1) pecuniary bias, (2) personal bias and (3) official bias or bias as to subject matter. The real question is not whether a person is biased. It is difficult to prove the state of mind of a person. Therefore, what we have to see is whether there is reasonable ground for believing that he was likely to have been biased (AK Kraipak's case ,., ). In cases of transfer, bias or bias of the subject matter, the test is whether there is real likelihood of bias. The law is settled that in all such cases of violation of principles of natural justice, the order of an administrative authority would not only become invalid, but also would be vitiated. Applying these tests to the facts and circumstances of this case, the impugned order of suspension and the initiation of criminal proceedings are vitiated due to such violations of principles of natural justice.
35. Mala fide action resulting in nullity is not alien to vitiate such an action. Because in general, every power must be exercised by the authority reasonably and lawfully. However, it is rightly said, "every power tends to corrupt and absolute power tends to corrupt absolutely." And it is not only the power but the duty of the Courts to see that all authorities exercise their power properly. lawfully and in good faith. Lord Lindley rightly states, "I take it to be clear that there is a condition implied in this as well as in other instruments which create powers, namely, that the powers shall be used bona fide for the purpose for which they are conferred. In other words, if the power has not been exercised bona fide, the exercise of power is bad and the action illegal, (vide Administrative Law by C.K. Thakkar, 1992 Edition). The types of mala fides or malice may be expressed - malice or malice in fact and legal malice or malice in law. In the considered opinion of this Court, the action of respondents 7,10 and 16 and their associates, answers the description of these kinds of mala fides or malice. In Pratap Singh v. State of Punjab, ., a civil surgeon who proceeded on leave preparatory to retirement was granted the leave, but it was revoked subsequently. He was suspended. A departmental enquiry was held against him and ultimately, he was removed from service. It was found that the proceedings had been instituted against him at the instance of the Chief Minister to wreak personal vengeance on him as he has not yielded to the illegal demands of the former. The Supreme Court upheld the contention of the petitioner therein that the exercise of power was mala fide. Perhaps, the facts in this case and the decision supra appear to be almost similar in nature. It is true that the burden of proving mala fides is on the person making the allegation. The petitioner has made.several allegations in this regard supported by sufficient and lot of documents and in that situation, the burden shifted on the contesting respondents to produce sufficient materials and to give sufficient explanations by means of affidavits. But the allegations of the petitioner have remained unrebutted in this regard. Even in the absence of such materials, this Court is convinced with all the facts and circumstances of this case that the impugned order of suspension and the criminal proceedings were nothing short of the malice or mala fides. Therefore, both the impugned orders of suspension and the initiation of criminal proceedings deserve to be quashed on the ground of mala fides and malice also. Most of the decisions depended upon by the parties in this regard are covered by the above principles and there may not be any need to refer to them individually or otherwise.
36. It was contended by Mr. Mohan Reddy, the learned Advocate for the contesting respondents that the charges against the petitioner are very grave both in the charge memo and the FIR and therefore, it may not well serve the interests of the administration of the institution or the persons involved in that, to quash the same. Particularly it is his contention that the criminal proceedings cannot be lightly quashed when prima facie materials are provided in the charge memo and the FIR as it is for the prosecuting agency to investigate and to take a decision in the matter either way. In fact, the learned single Judge was persuaded by such a contention as already pointed out and recorded in para 2 of this judgment. There may not be any difficulty in accepting such a general legal proposition that the Courts do not interfere with such exercise of jurisdiction by the investigating agency. But since the Managing Body or the complainant which filed the complaint had no jurisdiction to take such a decision or to initiate criminal proceedings and since such an action is found to be vitiated by mala fides, this Court is justified in exercising the powers under Article 226 of the Constitution of India to quash the criminal proceedings. In Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandraojirao Angre, ., the guidelines to quash such proceedings have been laid down in para 7 as follows:
".....The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
Therefore, in order to know whether the allegations made against the petitioner, prima facie establish the offences, would be a serious question before the Management after holding an enquiry by a duly constituted body so that a competent authority may file a complaint before the police to take necessary action. In the opinion of this Court, the matter is still at the stage of enquiry which may be held by a duly constituted Management.
37. There remains the question of reliefs to be granted to the petitioner. As laid down in a Full Bench ruling of this Court in Dronamraju Satyanarayana v. N.T. Rama Rao, (F.B.), of which one of us (M.N. Rao, J.) was a member, the High Court in an application under Article 226 of the Constitution of India has power to mould the relief taking into account the totality of the circumstances and the exigencies of the situation causing no prejudice to the respondents as they have understood the nature of the allegations made and traversed by them. The Respondent No. 16 is a prestigious institution having Colleges run by minorities imparting education. The colleges are autonomous. It involves the interest of many students and the staff and the public to whose benefit it is meant. It has attained very high economic status and has crores of rupees invested in it. The persons concerned (Management) will handle lots of public money. Very serious allegations of misconduct including misappropriation of such funds are found in the charges and FIR against the petitioner. When counter allegations were made against the respondents, they readily agreed for an inquiry, during arguments when the petitioner was not so much interested of it. Therefore, while granting reliefs to the petitioner, certain directions may be given in the interest of Respondent No. 16 in addition to maintaining the rights of the parties.
38. For the reasons afforded above, this appeal is allowed and the judgment and order of the learned single Judge in W.P. No. 3433/93 dated 4-2-94 are set aside. Consequently, W.P. No. 3433/93 is allowed. The impugned orders of suspension dated 15-10-93 and 16-10-93 regarding the petitioner as Principal and Correspondent of Respondent No. 16 are quashed. Further more, the criminal proceedings against the petitioner in Cr. No. 86/92 before respondent No. 6 are also quashed. It is declared that petitioner shall be entitled to continue as the Principal and the Correspondent of the said Colleges and the institutions of respondent No. 16. A writ of mandamus is issued directing Respondent Nos. 7 to 14 and 16 to arrange for the petitioner to assume charge as Principal and the Correspondent of Respondent No. 16 within fifteen days from today failing which the Respondents 1 to 4 shall take necessary steps to assist the petitioner to assume charge as such. Respondent No. 16 shall duly constitute a Management in accordance with the provisions of Andhra Pradesh Education Act, Grants-in-Aid Code, U.G.C. Rules and the Guidelines issued by the U.G.C. and in the light of the observations made in Sr. Philomena's case (1 supra). Such a duly constituted Management shall be entitled to decide whether any action is necessary as against the petitioner in accordance with law having due regard to the facts and circumstances of the case. Until a decision is taken by the duly constituted Management to proceed against the petitioner for any lapses on her part, it shall be open to such a Management after it came into being and before initiating action against the petitioner, to entrust the post of Correspondent to any other individual not concerned with respondent No. 16 and Guntur Society, to act as the Correspondent and in such an event, the petitioner shall be entitled to function only as the Principal and not as a Correspondent. It is made very clear that this shall not prevent the petitioner from exercising all the powers and functions as a Principal including the administration in regard to the Colleges of Mehdipatnam Society. If within three months after the duly constituted Management came into being, no action is initiated against the petitioner, she would function both as the Principal and the Correspondent of Mehdipatnam Society and the Colleges. It is also made very clear that the petitioner shall not cease to be the Secretary and Treasurer of the Executive Body of the Mehdipatnam Society subject to the limitations stated above to exercise all such powers in accordance with law and regulations of the Society. It is further ordered that the petitioner shall be deemed to have been on duty since the date of the impugned order of suspension which is quashed by us now. She is also entitled to salary and other allowances admissible during the interregnum i.e., between the date of her relief and the assumption of her duties pursuant to this judgment. The petitioner shall get costs against Respondents 7 and 10 both in the writ petition and in this writ appeal.
39. After the pronouncement of the judgment, an oral application is made for leave to appeal to the Supreme Court by Sri C.V. Mohan Reddy, the learned Counsel for the contesting respondents.
40. We have followed the precedents laid down by the Surpeme Court in deciding the case on hand and in our considered opinion, no substantial question of law of general importance requiring decision by the Supreme Court arises. The leave is, therefore, refused. The operation of the judgment is stayed for two weeks only with effect from today.