TaxTMI 
TaxTMI 
2022 (8) TMI 1528
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....3. In the present appeal, two pivotal issues fall 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 ....
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.... That, you were threatening the institution by writing to the President of our country that if something happens to you physically or mentally 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 ....
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....eing L.D.C., hence he is not entitled to the benefit of that judgment. So far as the judgment in the matter of Frank Anthony Public School Employees Association (supra) is concerned, that was a case where the teachers 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....
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....) 14 SCC 449, which, in turn, has relied upon its decision in the case of Ramesh Ahluwalia v. State of Punjab, reported in (2012) 12 SCC 331. 14. In view of the aforesaid, the Appellants are before this Court with the present appeal. LEGAL STATUS OF THE APPELLANT 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 ....
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....be affiliated with the Board shall frame Service Rules for its employees which will be as per Education Act of the State/ Union Territory, if the Act makes adoption of the same obligatory, otherwise as per Service Rules given in subsequent sections. (2) Service Contract will be entered with each employee as per the provision in the Education Act of the State / Union Territory or as given in Appendix III, if not obligatory 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. Appointm....
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....ered by the code of conduct. It prescribes the acts that constitute breach of code of conduct, the acts which shall not be deemed as a breach is a code of conduct. 46. Disciplinary Procedure: Suspension 1. The School Managing Committee may place an employee under suspension where: a. The disciplinary proceedings against her are contemplated or pending. Or b. A case against her in respect of any criminal offence is under investigation or trial; Or c. She is charged with embezzlement; Or d. She is charged with cruelty / physical punishment or mental harassment towards any student or any employee 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 ....
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....ry authority. 2. No order with regard to the imposition of a major penalty shall be made by the disciplinary authority except after the receipt of the approval of the Committee. 51. Disciplinary Committee: 1. In case the employee wishes to appeal against the order of the Disciplinary authority, the appeal shall be referred to a Disciplinary Committee. The Disciplinary Committee shall consist of the following: a) The Chairman of the School Managing committee or in her absence any member of the Committee, nominated by her. b) The Manager of the School, and where the disciplinary proceeding is against her any other person of the Committee nominated by the Chairman. c) A nominee of the Board appropriate authority, She shall act as an adviser. d) The Head of the School, 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 find....
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....city as a private body. 20. In such circumstance referred to above, Mr. Pai prays that there being merit in his appeal, the same may be allowed and the impugned order passed by the Division Bench of the High Court may be set aside. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO. 1 21. The Respondent No. 1 herein appeared virtually in-person. He relied upon the written submissions furnished by him to this Court. In his written submissions dated 10.08.2022, he has mainly stated as under: That the Respondent No. 1 (Rajendra Prasad Bhargava) is filing this Written Notes as per this Hon'ble Court's Order Dated: 08.08.2022 seeking that the judgment and final order dated: 15.12.2021 of the Hon'ble High Court of Madhya Pradesh, Bench at Indore in Writ Appeal No. 485/2017 kindly be upheld whereby the writ petition of Respondent No. 1 was maintainable. That the Respondent No. 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 ....
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....treatment. ii) That, my wife Smt. Sunita Bhargava, 53 years has been operated upon for Carnio Vertebral Junction Anomaly on 25.12.2021. She has been discharged on 02.01.2022 and still completely on bed. Her medication is still going on through physiotherapy and regular follow up for future periodic evaluation. For her operation I've taken a loan of Rupees 350000/- from a friend which has put more financial burden on me. I've to attend her throughout the day and night as well. iii) That, apart from this, I'm suffering from Cataract Disease in left eye. iv) That, I'm also suffering from Knee Pain problem in the right leg. 23. He has prayed for the following reliefs: Humble Prayer to this Court in the interest of Justice: 1. That, I (Respondent No. 1), therefore, humbly pray to this Court that kindly reject the contention urged by the Appellant on the maintainability of the writ petition and to kindly upheld the Impugned judgment and final order dated: 15.12.2021 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 23.09.20....
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....t that at the time of his appointment in the school, the same was affiliated to the Madhya Pradesh State Board. It is his case that at the relevant point of time the school used to receive the grant-in-aid from the State Government of Madhya Pradesh. Later in point of time, the school came to be affiliated to the CBSE. The argument of the Respondent No. 1 seems to be that as the school is affiliated to the Central Board i.e. the CBSE, it falls within the ambit of "State" Under Article 12 of the Constitution. The school is affiliated to the CBSE for the purpose of imparting elementary education under the Right of Children to Free and Compulsory Education Act, 2009 (for short, "Act 2009"). As the Appellant No. 1 is engaged in imparting of education, it could be said to be performing public functions. To put it in other words, the Appellant No. 1 could be said to be performing public duty. Even if a body performing public duty is amenable to the writ jurisdiction, all its decisions are not subject to judicial review. Only those decisions which have public element therein can be judicially reviewed under the writ jurisdiction. If the action challenged does not have the public element, ....
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....ght to an aggrieved party against the Management by a teacher on the ground of breach or non-compliance of any of the Rules which was part of terms of the recognition. It was observed as under: The Rules thus govern the terms on which the Government would grant recognition and aid and the Government can enforce these Rules upon the management. But the enforcement of such Rules is a matter between the Government and the management, and a third party, such as teacher aggrieved by some order of the management cannot derive from the Rules any enforceable right against the management on the ground of breach or non-compliance of any of the rules. 32. In Km. Anita Verma v. D.A.V. College Management Committee, Unchahar, Rai Bareilly, (1992) 1 UPLBEC 30: ....30 where the services of a teacher were terminated, the Court held that the writ petition Under Article 226 is not maintainable as the institution cannot be treated as the instrumentality of the State. The matter was considered in detail in M/s. Habans Kaur v. Committee of Management, Guru Teghbahadur Public School, Meerut and Anr., 1992 Labour and Industrial Cases 2070 (All), wherein the services of the Petitioner ....
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....igation and Drainage and Ors. (2015) 4 SCC 670, after an exhaustive review of its earlier decisions on the subject, held as follows: 43. What follows from a minute and careful reading of the aforesaid judgments of this Court is that if a person or authority is a 'State' within the meaning of Article 12 of the Constitution, admittedly a writ petition Under Article 226 would lie against such a person or body. However, we may add that even in such cases writ would not lie to enforce private law rights. There are catena of judgments on this aspect and it is not necessary to refer to those judgments as that is the basic principle of judicial review of an action under the administrative law. Reason is obvious. Private law is that part of a legal system which is a part of Common Law that involves relationships between individuals, such as law of contract or torts. Therefore, even if writ petition would be maintainable against an authority, which is 'State' Under Article 12 of the Constitution, before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as dis....
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....uch a way that a writ of mandamus could be issued even against a private authority. However, such private authority must be discharging a public function and that the decision sought to be corrected or enforced must be in discharge of a public function. The role of the State expanded enormously and attempts have been made to create various agencies to perform the governmental functions. Several corporations and companies have also been formed by the government to run industries and to carry on trading activities. These have come to be known as Public Sector Undertakings. However, in the interpretation given to Article 12 of the Constitution, this Court took the view that many of these companies and corporations could come within the sweep of Article 12 of the Constitution. At the same time, there are private bodies also which may be discharging public functions. It is difficult to draw a line between the public functions and private functions when it is being discharged by a purely private authority. A body is performing a "public function" when it seeks to achieve some collective benefit for the public or a Section of the public and is accepted by the public or that Section of the....
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....d) 41. In the background of the above legal position, it can be safely concluded that power of judicial review Under Article 226 of the Constitution of India can be exercised by the High Court even if the body against which an action is sought is not State or an Authority or an Instrumentality of the State but there must be a public element in the action complained of. 42. A reading of the above extract shows that the decision sought to be corrected or enforced must be in the discharge of a public function. No doubt, the aims and objective of the Appellant No. 1 herein is to impart education, which is a public function. However, the issue herein is with regard to the termination of service of the Respondent No. 1, which is basically a service contract. A body is said to be performing a public function when it seeks to achieve some collective benefit for the public or a Section of the public and is accepted by the public or that Section of the public as having authority to do so. 43. In the case of Committee of Management, Delhi Public School and Anr. v. M.K. Gandhi, reported in (2015) 17 SCC 353, this Court held that no writ is maintainable against a private school as it i....
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....sed by the learned Single Judge on the ground that no writ would lie against unaided private institutions and the writ petitions were not maintainable. Aggrieved thereby, writ appeals have been filed before the Division Bench without any result. The Division Bench held that the writ petitions are not maintainable against a private institute. Aggrieved thereby, these appeals have been filed. Counsel for the Appellant relied on a decision rendered by this Court in K. Krishnamacharyulu and Ors. v. Sri Venkateswara Hindu College of Engineering and Anr., (1997) 3 SCC 571. He particularly relied on the observation made by this Court in paragraph 4 of the order that when an element of public interest is created and the institution is catering to that element, the teacher, being the arm of the institution, is also entitled to avail of the remedy provided Under Article 226. This Court in Sushmita Basu and Ors. v. Ballygunge Siksha Samity and Ors., (2006) 7 SCC 680 in which one of us (Sema, J.) is a party, after considering the aforesaid judgment has distinguished the ratio by holding that the writ Under Article 226 of the Constitution against a private educational....
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....5) 2 SCR 713, the terms and conditions of service embodies in Clause 8(vi)(a) of the 'College Code' had the force of law apart from the contract and conferred rights on the Appellant there, here the terms and conditions mentioned in Statute 151 have no efficacy, unless they are incorporated in a contract. Therefore, Appellant cannot found a cause of action on any breach of the law but only on the breach of the contract. As already indicated, Statute 151 does not lay down any procedure for removal of a teacher to be incorporated in the contract. So, Clause 5 of the contract can, in no event, have even statutory flavour and for its breach, the Appellant's remedy lay elsewhere. 13. Besides, in order that the third exception to the general Rule that no writ will lie to quash an order terminating a contract of service, albeit illegally, as stated in S.R. Tewari v. District Board, Agra, (1964) 3 SCR 55 : AIR 1964 SC 1680, might apply, it is necessary that the order must be the order of a statutory body acting in breach of a mandatory obligation imposed by a statute. The college, or the Managing Committee in question, is not a statutory body and so the argument of Mr.....
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....and unless they are embodied in an agreement. To put it in other words, the terms and conditions of service mentioned in the Chapter VII of the Affiliation Byelaws have no force of law. They become terms and conditions of service only by virtue of their being incorporated in the contract. Without the contract they have no vitality and can confer no legal rights. The terms and conditions mentioned in the Affiliation Byelaws have no efficacy, unless they are incorporated in a contract. In the absence of any statutory provisions governing the services of the employees of the school, the service of the Respondent No. 1 was purely contractual. A contract of personal service cannot be enforced specifically. Therefore, the Respondent No. 1 cannot find a cause of action on any breach of the law, but only on the breach of the contract. That being so, the Appellant's remedy lies elsewhere and in no case the writ is maintainable. 51. Thus, the aforesaid order passed by this Court makes it very clear that in a case of retirement and in case of termination, no public law element is involved. This Court has held that a writ Under Article 226 of the Constitution against a private education....
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....her of an educational institution. Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State without interfering with overall administrative control of management over the staff, government/ university representative can be associated with the Selection Committee and the guidelines for selection can be laid down. In regard to unaided minority educational institutions such Regulations, which will ensure a check over unfair practices and general welfare of teachers could be framed. 53. We now proceed to look into the two decisions of this Court in the cases of Ramesh Ahluwalia (supra) and Marwari Balika Vidhyalaya (supra) reply. 54. In Ramesh Ahluwalia (supra), the Appellant therein was working as an administrative officer in a privately run educational institution and by way of disciplinary proceedings, was removed from service by the managing committee of the said educational institution. A writ petition was filed before the learned Single Judge of the High Court challenging the order of the disciplinary authority wherein he was removed from service. The writ petition was ordered to be dismissed in limin....
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....f the case of Marwari Balika Vidhyalaya (supra) is that in the said case the removal of the teacher from service was subject to the approval of the State Government. The State Government took a specific stance before this Court that its approval was required both for the appointment as well as removal of the teacher. In the case on hand, indisputably the government or any other agency of the government has no role to play in the termination of the Respondent No. 1 herein. 58. In context with Marwari Balika Vidhyalaya (supra), we remind ourselves of the Byelaw 49(2) which provides that no order with regard to the imposition of major penalty shall be made by the disciplinary authority except after the receipt of the approval of the disciplinary committee. Thus unlike Marwari Balika Vidhyalaya (supra) where approval was required of the State Government, in the case on hand the approval is to be obtained from the disciplinary committee of the institution. This distinguishing feature seems to have been overlooked by the High Court while passing the impugned order. 59. In Marwari Balika Vidhyalaya (supra), the school was receiving grant-in-aid to the extent of dearness allowance. T....
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....nable against the Mission merely for the reason that it was found running a hospital, thus discharging public functions/public duty. This Court considered the issue in reference to the element of public function which should be akin to the work performed by the State in its sovereign capacity. This Court took the view that every public function/public duty would not make a writ petition to be maintainable against an "authority" or a "person" referred Under Article 226 of the Constitution of India unless the functions are such which are akin to the functions of the State or are sovereign in nature. Few relevant paragraphs of the said judgment are quoted as under for ready reference: 17. The basic issue before this Court is whether the functions performed by the hospital are public functions, on the basis of which a writ of mandamus can lie Under Article 226 of the Constitution. 18. The hospital is a branch of the Ramakrishna Mission and is subject to its control. The Mission was established by Swami Vivekanand, the foremost disciple of Shri Ramakrishna Paramhansa. Service to humanity is for the organisation co-equal with service to God as is reflected in the motto ....
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....gislation. The teachers of the University and all its affiliated colleges were governed, insofar as their pay scales were concerned, by the recommendations of the University Grants Commission. A dispute over pay scales raised by the association representing the teachers of the University had been the subject-matter of an award of the Chancellor, which was accepted by the government as well as by the University. The management of the college, in question, decided to close it down without prior approval. A writ petition was instituted before the High Court for the enforcement of the right of the teachers to receive their salaries and terminal benefits in accordance with the governing provisions. In that context, this Court dealt with the issue as to whether the management of the college was amenable to the writ jurisdiction. A number of circumstances weighed in the ultimate decision of this Court, including the following: 20.1. The trust was managing an affiliated college. 20.2. The college was in receipt of government aid. 20.3. The aid of the government played a major role in the control, management and work of the educational institution. 20.4. ....
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.... classification of entities against whom a writ petition may be maintainable: (SCC p. 748, para 18) 18. From the decisions referred to above, the position that emerges is that a writ petition Under Article 226 of the Constitution of India may be maintainable against (i) the State (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. 63. The aforesaid decision of this Court in Ramakrishnan Mission (supra) came to be considered exhaustively by a Full Bench of the High Court of Allahabad in the case of Uttam Chand Rawat v. State of U.P., reported in (2021) 6 All LJ 393 (FB), wherein the Full Bench was called upon to answer the following question: (i) Whether the element of public function and public duty inherent in the enterprise that an educational institution undertakes, condit....
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....ority or a person merely for the reason that it has been created under the statute or is to governed by regulatory provisions. It would not even in a case where aid is received unless it is substantial in nature. The control of the State is another issue to hold a writ petition to be maintainable against an authority or a person. (Emphasis supplied) 65. We owe a duty to consider one relevant aspect of the matter. Although this aspect which we want to take notice of has not been highlighted by the Respondent No. 1, yet we must look into the same. We have referred to the CBSE Affiliation Byelaws in the earlier part of our judgment. Appendix-IV of the Affiliation Byelaws is with respect to the minority institutions. Clause 6 of Appendix-IV is with respect to the disciplinary control over the staff in a minority educational institution. We take notice of the fact that in Clause 6, the State has the regulatory power to safeguard the interests of their employees and their service conditions including the procedure for punishment to be imposed. For the sake of convenience and at the cost of repetition, we quote Clause 6 once again as under: 6. Disciplinary Control over Staf....
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....Respondent by filing a writ petition Under Article 226 of the Constitution of India. The Respondent is not trying to enforce any statutory duty on the part of the Bank. 34. Thus, contracts of a purely private nature would not be subject to writ jurisdiction merely by reason of the fact that they are structured by statutory provisions. The only exception to this principle arises in a situation where the contract of service is governed or regulated by a statutory provision. Hence, for instance, in K.K. Saksena [K.K. Saksena v. International Commission on Irrigation & Drainage, (2015) 4 SCC 670 : (2015) 2 SCC (Civ) 654 : (2015) 2 SCC (L&S) 119] this Court held that when an employee is a workman governed by the Industrial Disputes Act, 1947, it constitutes an exception to the general principle that a contract of personal service is not capable of being specifically enforced or performed. 35. It is of relevance to note that the Act was enacted to provide for the Regulation and registration of clinical establishments with a view to prescribe minimum standards of facilities and services. The Act, inter alia, stipulates conditions to be satisfied by clinical establishment....
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....all within the domain of a "public function" or "public duty" be undisputedly open to challenge and scrutiny Under Article 226 of the Constitution, the actions or decisions taken solely within the confines of an ordinary contract of service, having no statutory force or backing, cannot be recognised as being amenable to challenge Under Article 226 of the Constitution. In the absence of the service conditions being controlled or governed by statutory provisions, the matter would remain in the realm of an ordinary contract of service. (d) Even if it be perceived that imparting education by private unaided the school is a public duty within the expanded expression of the term, an employee of a non-teaching staff engaged by the school for the purpose of its administration or internal management is only an agency created by it. It is immaterial whether "A" or "B" is employed by school to discharge that duty. In any case, the terms of employment of contract between a school and non-teaching staff cannot and should not be construed to be an inseparable part of the obligation to impart education. This is particularly in respect to the disciplinary proceedings that may be initiated....