TaxTMI 
TaxTMI 
2022 (8) TMI 1528
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....ll for consideration of this Court: (a) Whether a writ petition Under Article 226 of the Constitution of India is maintainable against a private unaided minority institution? (b) Whether a service dispute in the private realm involving a private educational institution and its employee can be adjudicated in a writ petition filed Under Article 226 of the Constitution? In other words, even if a body performing public duty is amenable to writ jurisdiction, are all its decisions subject to judicial review or only those decisions which have public element therein can be judicially reviewed under the writ jurisdiction? 4. The aforesaid two questions, though not vexed, nevertheless despite plethora of case laws, always give rise to a debate. FACTUAL MATRIX 5. The Appellant No. 1-Society runs a private unaided educational institution. The Appellant No. 2 is the disciplinary committee constituted by the Appellant No. 1-Society for the purpose of its internal management. The Respondent No. 1 herein (original writ applicant before the learned Single Judge) was serving as an office employee of the Appellant No. 1. It appears from the materials on record that a show cause notice-cum-sus....
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.... on work due to such behavior at home the sole responsibility of it would be on the School Management, the Principal and the various authorities. This behaviour has compelled the school to complain to the police regarding your threat. Charge-VI- That, you are in the habit of taking leaves at will and insisting on taking leave at your sole convenience, sometimes without any sanction also. After conclusion of the departmental enquiry, the services of the Respondent No. 1 came to be terminated vide order dated 08.05.2015. 7. The Respondent No. 1 herein challenged the order of termination on various grounds in appeal before the Disciplinary Committee of the Appellant No. 1. The appeal was filed by the Respondent No. 1 herein Under Rule 49 of the CBSE Affiliation Byelaws. The Disciplinary Committee consisted of (i) Sr. M. Deepa, Chairman, (ii) Sr. M. Georgina, School Manager, (iii) S.N. Purwar, Advisor CBSE Nominee, and (iv) Sadhna Paranjape, School Managing Committee Member. The appeal was ordered to be dismissed by the Disciplinary Committee, the Appellant No. 2 herein, vide order dated 23.09.2016. 8. In view of the aforesaid, the Respondent No. 1 invoked the writ jurisdiction ....
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....ers had approached the court for writ of mandamus seeking equalisation of their pay scales and condition of service with those of their counterparts in government schools and in that context it was observed that 'the management of a minority Educational institution cannot be permitted under the guise of the fundamental right guaranteed by Article 30(1) of the Constitution, to oppress or exploit its employees any more than any other private employee, therefore the said judgment is distinguishable on its own facts. Similarly the benefit of Single Bench judgment of this Court in the matter of Mrs. Kirti Bugde (supra) cannot be granted to the Petitioner because in that judgment the Petitioner was a teacher and a member of the academic staff but that is not so in the present case. Having regard to the aforesaid, I am of the opinion that writ petition filed by the Petitioner for issuance of writ of certiorari against the action of Respondent No. 3 which is a private unaided institution is not maintainable Under Article 226 of the Constitution of India, which is accordingly dismissed, however with a liberty to the Petitioner to avail such other remedies as are available in the law....
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....ANT NO. 1 - SOCIETY 15. The Appellant No. 1 is a Society registered under the Madhya Pradesh Society Registrikaran Adhiniyam, 1973. The Society runs an all-girls school in Mhow, Indore, Madhya Pradesh, by the name St. Mary's Higher Secondary School, which was founded by a group of French Catholic Nuns in 1893. The school is a private unaided minority educational institution, which enjoys the protection guaranteed Under Article 30(1) of the Constitution. There is absolutely no Governmental control over the functioning and administration of the school. The Respondent No. 1 herein was employed in this school prior to his termination. The school is presently affiliated to the Central Board of Secondary Education (CBSE) and is thus governed by its Rules and Byelaws. Further, the Society has its own Byelaws, namely, (1) the Service Conditions for the Employees of St. Mary's School and (2) Service Rules for Teaching and Non-Teaching Staff. The Appellant No. 1-Society and the school are absolutely private institutions, without any aid or control of the Government or any instrumentality of the Government, and therefore, not a "State" within the meaning of Article 12 of the Constitu....
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....ligatory as per the State Education Act / Act applicable in the country in which the school is situated. 27. Appointments: (1) All appointments to all categories of employees except Group 'D' employees (multitasking staff/ housekeeping) as per relevant country /Government of India gradation shall be made by Managing Committee either by direct recruitment or by promotion through a Selection Committee constituted by the School Society / Trust / Company Registered Under Section 25 of the Companies Act, 1956 or under the appropriate Acts of relevant country and in accordance with and upon such conditions as the Managing committee may decide, which shall be consistent with norms of the Board / Government if statutory provision exists. Appointment of Group 'D' employees will be made by the Principal through constituted Selection Committee. (2) The Selection Committee shall include. a) In the case of recruitment of the Head of the School: (i) the President of the Society; (ii) the Chairman of the Managing Committee; (iii) an educationist, nominated by the managing committee; (iv) a person having experience of administration of schools, nominated by the Mana....
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....loyee of the school. Or e. She is charged with misbehavior towards any parent, guardian student or employee of the school; Or f. She is charged with a breach of any other Code of Conduct. 49. Procedure for Imposing Major Penalty: 1. No order imposing on any employee any major penalty shall be made except after an inquiry is held as far as may be, in the manner specified below: a) The disciplinary authority shall frame definite charges on the basis of the allegation on which the inquiry is proposed to be held and a copy of the charges together with the statement of the allegations on which they are based shall be furnished to employee and she shall be required to submit within such time as may be specified by the disciplinary authority but not later than two weeks, a written statement of her defence and also to state whether she desires to be heard in person; b) On receipt of the written statement of defence, or where no such statement is received within the specified time, the disciplinary authority may itself make inquiry in to such of the charges as are not admitted or if it considers it necessary to do so, appoint and inquiry officer for the purpose; c) At the ....
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....chool, except where the disciplinary proceedings is against her, the Head of any other school nominated by the CBSE or Director of Education in case the Act so provides. e) One teacher who is a member of School Managing Committee of the school nominated by the Chairman of the Committee. 2. The Disciplinary Committee shall carefully examine the findings of the enquiry officer reasons for imposing penalty recorded by the Disciplinary Authority and the representation by the employee and pass orders as it may deem fit. Appendix-IV attached to the Byelaws is with respect to the minority educational institutions. Clause 6 of Appendix-IV reads thus: 6. Disciplinary Control over Staff in Minority Educational Institutions: While the managements should exercise the disciplinary control over staff, it must be ensured that they hold an inquiry and follow a fair procedure before punishment is given. With a view to preventing the possible misuse of power by the management of the Minority Educational Institutions, the State has the regulatory power to safeguard the interests of their employees and their service conditions including procedure for punishment to be imposed. (Emphasis suppli....
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....o. 1 was working in St. Mary's Hr. Section School, Mhow (M.P.) run by the Appellant namely St. Mary's Education Society, serving as a LDC since July 1, 1987. That, the Respondent No. 1 has performed his duty honestly, diligently, allegiance (loyalty) and with hard work during his 27 years of service and there is no adverse remark in his Service Book and Annual Confidential Roll. That, as far as the Respondent No. 1 has knowledge and information, on the basis of that the Respondent No. 1 humbly prays to this Court that: I) Mandamus is a very wide remedy which must be available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief Under Article 226. A word is said to be mandatory as well as defining in nature when the word MUST is used in meaning of that word. As the word "MUST" is used in the aforesaid statement about the mandamus by this Hon'ble Court, the mandamus becomes mandatory as well as defining in nature. Hence it is proved that mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief Under Art....
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....12.2021 rightly and legally held by the High Court of Madhya Pradesh, Bench at Indore in Writ Appeal No. 485 of 2017. 2. That, the impugned order dated 23.09.2016 passed by the Appellant, being illegal, improper and inoperative, may kindly be set aside; 3. That, the termination order dated 08.05.2015 passed by the disciplinary authority may kindly be set aside; 4. That, necessary orders may kindly be passed for reinstating the Respondent No. 1 at his original post with all consequential benefits and back wages; 5. Any other relief, which this Court may consider necessary in the interest of justice, may also be granted in favor of the Respondent No. 1. 24. Later in point of time, the Respondent No. 1 filed additional written submissions dated 11.08.2022, wherein the following has been stated: 1. That, when Respondent No. 1 was appointed in the said institution (St. Mary's Hr. Section School), the said institution was affiliated to the M.P. Board (State Board). At that time the school was also in receipt of the Grant-in-Aid from the State Government of M.P. 2. That, whilst the Respondent No. 1 was appointed on 01.07.1987 but the Service Conditions and Guidelines for ....
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....eviewed under the writ jurisdiction. If the action challenged does not have the public element, a writ of mandamus cannot be issued as the action could be said to be essentially of a private character. 28. We may at the outset state that the CBSE is only a society registered under the Societies Registration Act, 1860 and the school affiliated to it is not a creature of the statute and hence not a statutory body. The distinction between a body created by the statute and a body governed in accordance with a statute has been explained by this Court in the Executive Committee of Vaish Degree College v. Lakshimi Narain, (1976) 2 SCC 58, as follows: It is, therefore, clear that there is a well marked distinction between a body which is created by the statute and a body which after having come into existence is governed in accordance with the provisions of the statute. In other words, the position seems to be that the institution concerned must owe its very existence to a statute which would be the fountain-head of its powers. The question in such cases to be asked is, if there is no statute would the institution have any legal existence. If the answer is in the negative, then undoubte....
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....ustrial Cases 2070 (All), wherein the services of the Petitioner were terminated by the Managing Committee of the institution recognised by the C.B.S.E. It was held that the Affiliation Bye-laws framed by the C.B.S.E. has no statutory force. The Court Under Article 226 of the Constitution of India can enforce compliance of statutory provision against a Committee of Management as held in a Full Bench decision of this Court in Aley Ahmad Abdi v. District Inspector of Schools, Allahabad and Ors. AIR 1977 All. 539. The Affiliation Bye-laws of C.B.S.E. having no statutory force, the only remedy against the aggrieved person is to approach C.B.S.E. putting his grievances in relation to the violation of the Affiliation Bye-laws by the institution. 33. Thus, where a teacher or non-teaching staff challenges action of Committee of Management that it has violated the terms of contract or the Rules of the Affiliation Byelaws, the appropriate remedy of such teacher or employee is to approach the CBSE or to take such other legal remedy available under law. It is open to the CBSE to take appropriate action against the Committee of Management of the institution for withdrawal of recognition in cas....
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....is challenged, is in the domain of public law as distinguished from private law. xxxx 52. It is trite that contract of personal service cannot be enforced. There are three exceptions to this rule, namely: (i) when the employee is a public servant working under the Union of India or State; (ii) when such an employee is employed by an authority/body which is a State within the meaning of Article 12 of the Constitution of India; and (ii) when such an employee is 'workmen' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and raises a dispute regarding his termination by invoking the machinery under the said Act. In the first two cases, the employment ceases to have private law character and 'status' to such an employment is attached. In the third category of cases, it is the Industrial Disputes Act which confers jurisdiction on the labour court/industrial tribunal to grant reinstatement in case termination is found to be illegal. 36. The following decisions have been adverted to in K.K. Saksena (supra): 1. Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V.R. Rudani and Ors. (19....
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....do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest.... (Emphasis supplied) 39. This Court considered various of its other decisions to examine the question of public law remedy Under Article 226 of the Constitution. This Court observed in Binny Ltd. (supra) as under: 29. Thus, it can be seen that a writ of mandamus or the remedy Under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel the public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather th....
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....itution of India. 44. In the case of Trigun Chand Thakur v. State of Bihar and Ors., reported in (2019) 7 SCC 513, this Court upheld the view of a Division Bench of the Patna High Court which held that a teacher of privately managed school, even though financially aided by the State Government or the Board, cannot maintain a writ petition against an order of termination from service passed by the Management. 45. In the case of Satimbla Sharma (supra), this Court held that the unaided private minority schools over which the Government has no administrative control because of their autonomy Under Article 30(1) of the Constitution are not "State" within the meaning of Article 12 of the Constitution. As the right to equality Under Article 14 of the Constitution is available against the State, it cannot be claimed against unaided private minority private schools. 46. The Full Bench of the Allahabad High Court in the case of Roychan Abraham v. State of U.P. AIR 2019 All 96, after taking into consideration various decisions of this Court, held as under: 38. Even if it be assumed that an educational institution is imparting public duty, the act complained of must have direct nexus wit....
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....edy no writ petition would lie. In the present cases, there is no question of public law element involved inasmuch as the grievances of the Appellants are of personal nature. We, accordingly, hold that writ petitions are not maintainable against the private institute. There is no infirmity in the order passed by the learned Single Judge and affirmed by the Division Bench. These appeals are devoid of merit and are, accordingly, dismissed. No costs. (Emphasis supplied) 48. We may also refer to and rely upon the decision of this Court in the case of Vidya Ram Misra v. The Managing Committee Shri Jai Narain College, (1972) 1 SCC 623 : AIR 1972 SC 1450. The Appellant therein filed a writ petition before the Lucknow Bench of the High Court of Allahabad challenging the validity of a resolution passed by the Managing Committee of Shri Jai Narain College, Lucknow, an associated college of the Lucknow University, terminating his services and praying for issue of an appropriate writ or order quashing the resolution. A learned Single Judge of the High Court finding that in terminating the services, the Managing Committee acted in violation of the principles of natural justice, quashed the re....
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....Court has sub-silentio sanctioned the issue of a writ Under Article 226 to quash an order terminating services of a teacher passed by a college similarly situate in Prabhakar Ramakrishna Jodh (supra), and, therefore, the fact that the college or the Managing Committee was not a statutory body was no hindrance to the High Court issuing the writ prayed for by the Appellant has no merit as this Court expressly stated in the judgment that no such contention was raised in the High Court and so it cannot be allowed to be raised in this Court. 49. In the case on hand, the facts are similar. Rule 26(1) of the Affiliation Byelaws, framed by the CBSE, provides that each school affiliated with the Board shall frame Service Rules. Sub-rule (2) of it provides that a service contract will be entered with each employee as per the provision in the Education Act of the State/U.T. or as given in the Appendix III, if not obligatory as per the State Education Act. These Rules also provide procedures for appointments, probation, confirmation, recruitment, attendance representations, grant of leave, code of conduct, disciplinary procedure, penalties, etc. The model form of contract of service, to be ex....
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....o writ lies. 52. In T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, an eleven-Judge Bench of this Court formulated certain points in fact to reconsider its earlier decision in the case of Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717, and also the case of Unnikrishnan P.J. v. State of A.P., reported in (1993) 4 SCC 111, regarding the "right of the minority institution including administration of the student and imparting education vis-à-vis the right of administration of the non-minority student". In the said case, very important points arose as follows: 5. (c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and Regulation of fees etc. would interfere with the right of administration of minorities? A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory me....
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.... The appeal before the Division Bench also came to be dismissed. The matter travelled to this Court. The principal argument before this Court was in regard to the maintainability of the writ petition against a private educational institution. It was argued on the behalf of the Appellant therein that although a private educational institution may not fall within the definition of "State" or "other authorities/ instrumentalities" of the State Under Article 12 of the Constitution, yet a writ petition would be maintainable as the said educational institution could be said to be discharging public functions by imparting education. However, the learned Counsel for the educational institution therein took a plea before this Court that while considering whether a body falling with the definition of "State", it is necessary to consider whether such body is financially, functionally and administratively dominated by or under the control of the government. It was further argued that if the control is merely regulatory either under a statute or otherwise, it would not ipso facto make the body "State" within Article 12 of the Constitution. On the conspectus of the peculiar facts of the case and....
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....uch mandatory provisions, the same would not come within the realm of private element. 60. In Trigun Chand Thakur (supra), the Appellant therein was appointed as a Sanskrit teacher and a show cause notice was issued upon him on the ground that he was absent on the eve of the Independence day and the Teachers day which resulted into a dismissal order passed by the Managing Committee of the private school. The challenge was made by filing a writ petition before the High Court which was dismissed on the ground that the writ petition is not maintainable against an order terminating the service by the Managing Committee of the private school. This Court held that even if the private school was receiving a financial aid from the Government, it does not make the said Managing Committee of the school a "State" within the meaning of Article 12 of the Constitution of India. 61. Merely because a writ petition can be maintained against the private individuals discharging the public duties and/or public functions, the same should not be entertained if the enforcement is sought to be secured under the realm of a private law. It would not be safe to say that the moment the private institution i....
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....shna Paramahansa and practically illustrated by his own life and of comparative theology in its widest form. Its objects include, inter alia to establish, maintain, carry on and assist schools, colleges, universities, research institutions, libraries, hospitals and take up development and general welfare activities for the benefit of the underprivileged/backward/tribal people of society without any discrimination. These activities are voluntary, charitable and non-profit making in nature. The activities undertaken by the Mission, a non-profit entity are not closely related to those performed by the State in its sovereign capacity nor do they partake of the nature of a public duty. 19. The Governing Body of the Mission is constituted by members of the Board of Trustees of Ramakrishna Math and is vested with the power and authority to manage the organisation. The properties and funds of the Mission and its management vest in the Governing Body. Any person can become a member of the Mission if elected by the Governing Body. Members on roll form the quorum of the annual general meetings. The Managing Committee comprises of members appointed by the Governing Body for managing the affa....
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....rsity. 20.6. Their activities are closely supervised by the University. 20.7. Employment in such institutions is hence, not devoid of a public character and is governed by the decisions taken by the University which are binding on the management. 21. It was in the above circumstances that this Court came to the conclusion that the service conditions of the academic staff do not partake of a private character, but are governed by a right-duty relationship between the staff and the management. A breach of the duty, it was held, would be amenable to the remedy of a writ of mandamus. While the Court recognised that "the fast expanding maze of bodies affecting rights of people cannot be put into watertight compartments", it laid down two exceptions where the remedy of mandamus would not be available: (SCC p. 698, para 15) 15. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to mandamus. 22. Following the decision in Andi Mukta [Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (198....
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....on as under: 16. The substance of the discussion made above is that a writ petition would be maintainable against the authority or the person which may be a private body, if it discharges public function/public duty, which is otherwise primary function of the State referred in the judgment of the Apex Court in the case of Ramakrishnan Mission (supra) and the issue under public law is involved. The aforesaid twin test has to be satisfied for entertaining writ petition Under Article 226 of the Constitution of India. 17. From the discussion aforesaid and in the light of the judgments referred above, a writ petition Under Article 226 of the Constitution would be maintainable against (i) the Government; (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function. 18. There is thin line between "public functions" and "....
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....er to safeguard the interests of their employees and their service conditions including procedure for punishment to be imposed. (Emphasis supplied) 66. It could be argued that as the State has regulatory power to safeguard the interests of the employees serving with the minority institutions, any action or decision taken by such institution is amenable to writ jurisdiction Under Article 226 of the Constitution. 67. In the aforesaid context, we may only say that merely because the State Government has the regulatory power, the same, by itself, would not confer any such status upon the institution (school) nor put any such obligations upon it which may be enforced through issue of a Writ Under Article 226 of the Constitution. In this regard, we may refer to and rely upon the decision of this Court in the case of Federal Bank (supra). While deciding whether a private bank that is regulated by the Banking Regulation Act, 1949 discharges any public function, this Court held thus: 33.... in our view, a private company carrying on banking business as a scheduled bank, cannot be termed as an institution or a company carrying on any statutory or public duty. A private body or a person ....
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....cle 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a Section of it and the authority to do so must be accepted by the public. (b) Even if it be assumed that an educational institution is imparting public duty, the act complained of must have a direct nexus with the discharge of public duty. It is indisputably a public law action which confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction Under Article 226 for a prerogative writ. Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through a writ petition Under Article 226. Wherever Courts have intervened in their exercise of jurisdiction Under Article 226, either the service conditions ....