Writ Petition is maintainable even against a private management if there is violation of statutory obligation involved, holds a Full Bench of the High Court of Kerala

A Full Bench of the High Court of Kerala comprising of Ag. Chief Justice Mr. Ashok Bhushan, Justice A.M. Shaffique and Justice A.K. Jayasankaran Nambiar has held in Dr. John Kuriakose v. State of Kerala and others (decided on 18.12.2014) that a Writ Petition is maintainable even against a private management  if there is violation of statutory obligation.

The Full Bench also held that the judgment of an earlier Full Bench of the High Court of Kerala in Madhavan Pillai v. Balan and others (1979 KLT 220) to the effect that writ petition against a private body was not maintainable, was rendered followed the judgment of the Apex Court in Vidya Ram's case [AIR 1972 SC 1450] but without referring to the ratio ofa 4-judges’ judgment of the Apex Court in  Prabhakar Ramkrishna Jodh's case (1965) 2 SCR 713] , which was a four Judge Bench judgment and was binding.

The petitioner in the writ petition had joined the service of Mar Athanasius College, Kothamangalam as Lecturer in English. While so, he came across an advertisement issued by St. Mary’s College, Manarcaud in the University News dated 8.5.2000 inviting applications for appointment to the post of Principal of the College. The petitioner submitted an application for the said post and was recommended to be appointed as the Principal. The recommendation of the Selection Committee was forwarded to the University for approval as required by Section 59(8) of the Act, 1985. The University approved the appointment, which was communicated to the College by letter dated 31.3.2001. The College issued an appointment order to the petitioner appointing him as Principal with effect from 3.7.2000. The petitioner referred an application to his earlier institution, i.e., 5th respondent for being relieved. In the letter the petitioner requested the 5th respondent to relieve him with lien of five years. The 5th respondent College issued relieving order dated 3.7.2000 mentioning that the petitioner's lien is retained in the post of Lecturer (Selection Grade) in English for a period of five years.

Thereafter, the petitioner was placed under suspension by order dated 3.9.2003 of the 4th respondent College on the basis of certain allegations against him, pending disciplinary proceedings. Challenging the order dated 3.9.2003, the petitioner filed W.P(C).No.29801 of 2003. In the Writ Petition a preliminary objection was raised by the management that the Writ Petition having been filed against a private body was not maintainable in the light of  a Full Bench judgment of the High Court of Kerala in Madhavan Pillai v. Balan and others (1979 KLT 220).

 It was contended on behalf of the petitioner that the writ Petition was maintainable in view of the various judgments of the Apex Court. The matter was placed before the Division Bench and the Division Bench by order dated 14.11.2003 directed the matter to be placed before the Full Bench. The Writ Petition came up for hearing before the Full Bench. Before the Full Bench learned counsel for the management submitted that the enquiry ordered against the petitioner has reached final stage and the enquiry report has already been served on the petitioner. It was contended by the management that in case the management imposes any punishment, the petitioner has got an effective alternative remedy by way of appeal before the University Appellate Tribunal under Section 63(6) of the Act, 1985. The Full Bench left the question regarding maintainability of the Writ Petition open, but disposed of the Writ Petition directing the Management to pass appropriate orders with liberty to the petitioner to take recourse of the alternative remedy.

After the above said judgment, the management had proceeded against the petitioner. The Manager, as the disciplinary authority, issued order dated 12.10.2004 informing the petitioner that the petitioner's appointment on deputation as Principal of St.Mary's College stands terminated with effect from 12.10.2004 and he stands reverted to the post of Selection Grade Lecturer in English in Mar Athanasius College, Kothamangalam.

The petitioner, after receipt of order dated 12.10.2004 and relieving order dated 15.10.2004, submitted a representation to the Manager requesting to withdraw orders dated 12.10.2004 and 15.10.2004. The petitioner stated in the representation that he was never on deputation, he was directly appointed and that he has lien in the post of Principal of St.Mary's College and his previous lien has come to an end under Rule 16 of the Kerala Service Rules.

Accordingly, the petitioner gave further representation and thereafter filed the present Writ Petition.

When the matter came up for hearing before the Division Bench, it was contended by learned counsel appearing for the management that as per the earlier judgment of the Full Bench, the Full Bench has relegated the petitioner to file appeal before the Tribunal under Section 63(6) of the Act, 1985, hence, the  remedy of the petitioner is to approach the University Appellate Tribunal, whereas before the learned Division Bench the petitioner contended that the order dated 12.10.2004, which was impugned in the Writ Petition, is not an order of punishment, but only an order informing the petitioner that the petitioner's deputation has been terminated and he has been reverted to the post of Selection Grade Lecturer in English in the 5th respondent College, hence, the order impugned being not issued by way of imposition of penalty, there is no other remedy, except to approach this Court.

The petitioner had contended that the petitioner was never issued a charge memo as required by relevant Statute, hence the entire disciplinary proceedings initiated against him were without jurisdiction. He further submitted that there was no allegation against him and the proceedings were initiated somehow to oust him from the College to accommodate certain other persons. He submitted that after receipt of show cause notice, he submitted reply, where he replied to every allegation and the management having found that no punishment could be imposed, issued an order terminating his deputation in the College. He submitted that he was never appointed on deputation, rather he was directly appointed to the post of Principal having been recommended by the Selection Committee and approved by the University. Hence, the order dated 12.10.2004 was wholly without jurisdiction. He further submitted that although the 5th respondent while relieving the petitioner had mentioned that his lien was retained for a period of five years, but by virtue of Rule 16 of KSR, the petitioner's lien in the earlier College had come to an end on his subsequent appointment in the 4th respondent College. He submitted that the petitioner's lien in 5th respondent College being not in existence, there was no question of the petitioner being reverted to the 5^th respondent College. He further submitted that there is no question of availing the alternative remedy before the Tribunal, since the appeal before the Tribunal can be filed only against a punishment imposed, whereas the order dated 12.10.2004 cannot be said to be any punishment order within the meaning of the Act, 1985. The petitioner submitted that he thus has no remedy, except to approach the High Court.

On the question of maintainability of the Writ Petition, the petitioner contended that the Writ Petition before this Court is maintainable against the College, since the College is affiliated to the University receiving grant from the State and governed by the provisions of Section 85 of the Act, 1985 and the Statute framed thereunder. It was submitted that the State pays the entire salary of the staff.

The petitioner further submitted that he, after order dated 12.10.2004, could not join in the fifth respondent College and was out of employment for a substantial period, except for two spells of period when he obtained an employment, i.e., (1) from 15.12.2006 to 2.12.2011 and (2) from 12.9.2013 to 13.6.2014.

Mr. K. Gopala Krishna Kurup, Senior Advocate, appearing for the fourth respondent contended that the Writ Petition against the fourth respondent College is not maintainable. He submitted that the fourth respondent College is a minority institution, which has a right to appoint its Principal and also a right to terminate the Principal. He submitted that the petitioner's appointment was in fact a term appointment for five years only and it was only at the instance of the University that the appointment letter dated 3.7.2000 was sent to the University, which did not mention any term of the appointment. He submitted that the petitioner having been appointed only for a period of five years in the College, there was no error in passing the order dated 12.10.2004 terminating the deputation of the petitioner. He further submitted that even if it is held that the Writ Petition is maintainable, the petitioner cannot be allowed reinstatement in the College, since the contract of service cannot be specifically enforced by this Court exercising power under Article 226 of the Constitution of India. He submitted that the prayer of the petitioner being essentially a prayer seeking specific enforcement of contract, cannot be granted by this Court in exercise of power under Article 226 of the Constitution.

The fourth respondent College being a minority institution, affiliated to the M.G.University and salary of teachers and staff being paid under the direct payment scheme by the Government, whether against the action impugned in a Writ Petition is maintainable under Article 226 of the Constitution is the question to be answered.

In the Full Bench judgment in Madhavan Pillai's case (supra),. on which reliance was placed by the management  it was held that

“The college concerned is a purely private college, affiliated no doubt to the University but that would not make it a statutory body, nor give the teacher a statutory status. In the absence of these, it has been well recognised by series of decisions that the aggrieved teacher would not be entitled to relief under Art.226. In Vidya Ram v. S. J. N. College (AIR 1972 SC 226) Mathew, J.,   surveyed the case law on the subject with special reference, in particular to the Vidyodaya University's case (1964 (3) All. E.R.865) and to the decision of the House of Lords in Malloch v. Abordeen Corpn. (1971 (1) WLR 1578) and the many decisions of the Supreme Court, and summarised the position thus:

"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 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 principle was reaffirmed recently in Vaish College case (AIR 1976 SC 888) where the court observed:

"It seems to us that before an institution can be a statutory body it must be created by or under the statute and owe its existence to a statute. This must be the primary thing which has got to be established. Here a distinction must be made between an institution which is not created by or under a statute but is governed by certain statutory provisions for the proper maintenance and administration of the institution. There have been a number of institutions which though not created by or under any statute have adopted certain statutory provisions, but that by itself is not, in our opinion, sufficient to clothe the institution with a statutory character. In Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi (AIR 1975 SC 1331 at p. 1339) this Court clearly pointed out as to what constitutes a statutory body. In this connection my Lord A. N. Ray. C.J. observed as follows: 'A company incorporated under the Companies Act is not created by the Companies Act but comes into existence in accordance with the provisions of the Act. It is not a statutory body because it is not created by the statute. It is a body created in accordance with the provisions of the statute.'

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 statue 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 undoubtedly it is a statutory body, but if the institution has a separate existence of its own without any reference to the statute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body”.

The Court said that there is no dispute that salary of teachers and employees is being paid by the State. The fourth respondent College is undoubtedly a private body, but it is obliged to carry on its function as per the statutory obligations imposed by the Act, 1985 and the Statutes framed thereunder.

The petitioner relied on the judgment of the Apex Court in Andi Mukta S.M.V.S.S.J.M.S. Trust and others v. V.R.Rudani and others [(1989)2 SCC 691] to support his submission that the Writ Petition is fully maintainable. In the said case, the Apex Court said that

“17. … Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to “any person or authority”. It

can be issued “for the enforcement of any of the fundamental rights and for any other purpose”.

19. The scope of this article has been explained by Subba Rao, J., in Dwarkanath v. ITO: (SCR pp. 540-41) “This article is couched in comprehensive

phraseology and it ex-facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression “nature”, for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Court to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself.”

20. The term “authority” used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words “any person or authority” used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body

performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied.

21. In Praga Tools Corpn. v. C.A. Imanual this Court said that a mandamus can issue against a person or body to carry out the duties placed on them by the statutes even though they are not public officials or statutory body. It was observed: (SCC p. 589, para 6 : SCR p. 778)

“It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public

responsibilities. (Cf. Halsbury’s Laws of England, 3rd Edn., Vol. II, p. 52 and onwards.)”

22. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor de Smith states: “To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.”We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available “to reach injustice wherever it is found”. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition.”

The Bench held that a private body on which public duty has been imposed by a Statute, can thus be commanded to perform statutory duty and any violation in performance of statutory duty can be complained in writ proceeding; thus where allegation of statutory violation is made, Writ Petition is clearly maintainable under Article 226 of the Constitution.

A Full Bench of the Allahabad High Court in Aley Ahmad Abdi v. District Inspector of Schools and others (1976 AWC 731 All.) has also held that Writ Petition against a private management committee is fully maintainable, if violation of statutory provisions is alleged:

“20. …It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official or of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. In Hatsbury's Laws of England (III Edition) Volume 30, at page 682, it is stated that a natural or individual person might, when acting in execution of a public duty, be a public authority.

21. In Miss Kumkum Khanna v. The Principal Jesus and Marry College AIR 1976 Del 35, a Division Bench of the Delhi High Court, after referring to the passage in Section A. De Smith's Judicial Review of Administrative Action (3rd edition) at page 341, observed thus at page 38:

On the other hand, the use of the word 'person' in the above statements of law in relation to mandamus and certiorari would show that the person or authority against whom these remedies are given need not be invariably created by a statute. Only a legal person can be created by a statute. But these writs can be issued against a natural person provided that he is exercising a public or a statutory power or doing a public or a statutory duty.”

In the Full Bench decision in Madhavan Pillai's case (supra), the Bench held that the Writ Petition is not maintainable relying on two judgments of the Apex Court, namely, Vidya Ram v. S.J.N.College (AIR 1972 SC 1450) and Commissioner Lucknow Divison v. Prem Lata (AIR 1977 SC 334).

In Vidya Ram’s case, it was held:

“12. Whereas in the case of Prabhakar Ramkrishna Jodh v. A. L. Pande, (1965) 2 SCR 713,the terms and conditions of service embodied 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 event a 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 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 Bench said that In Vidya Ram's case (supra) an earlier judgment of the Apex Court reported in Prabhakar Ramkrishna Jodh's case (supra) was cited.

In Prabhakar Ramkrishna Jodh's case (supra), the appellant was working as the Lecturer in S.B.R.College, which was affiliated under the University of Saugar Act, 1946. The appellant's services were terminated, against which order, a Writ Petition was filed by the appellant under Article 226 of the Constitution praying for quashing the termination order. The appellant's case was that termination of the appellant was in violation of the provisions of Clause 8(vi)(a) of the College Code, hence the order was ultra vires and illegal. The High Court rejected the application and held that the services of the appellant were not governed by the College Code, but by the contract made between the governing body and the appellant. Hence, the remedy under Article 226 of the Constitution was not available and proper recourse for the petitioner was to bring the suit in the Civil Court. Against the judgment of the High Court, an appeal was filed before the Apex Court.

 The Apex Court noted that the College Code has been made by the University in exercise of statutory power and the College Code have force of law. The Apex Court held that the College Code confers legal rights in favour of the teacher and the view taken by the High Court is erroneous.

The Apex Court in the above judgment clearly laid down that in case where there is statutory violation in terminating services of the teacher, the Writ Petition can be entertained under Article 226 of the Constitution. The

Apex Court set aside the judgment of the High Court dismissing the Writ Petition as not maintainable and remanded the matter for fresh consideration by the High Court.

Vidya Ram's case (supra) was also a case of termination of services of a teacher by the Managing  Committee. The termination was challenged on the ground that the Managing Committee acted in violation of principles of natural justice. The learned Single Judge had allowed the Writ Petition against which appeal was filed. The Division Bench allowed the appeal and dismissed the Writ Petition against which order the matter was taken in the Apex Court. In Vidya Ram's case (supra) reliance was made by learned counsel for the appellant on Prabhakar Ramkrishna Jodh's case (supra). The Apex Court noted the ratio in Prabhakar Ramkrishna Jodh's case (supra) and held that the Writ Petition was rightly entertained. The ratio laid down by the Apex Court in four Judge Bench's judgment in Prabhakar Ramkrishna Jodh's case (supra) was followed.

The Full Bench found that the fact that in Prabhakar Ramkrishna Jodh's case (supra) the objection raised by the respondent in that Writ Petition regarding entertainability of Writ Petition against a non statutory body was not allowed to be raised, cannot lead to the conclusion that the Apex Court accepted the said objection as a valid objection to entertainability of the Writ Petition.

The Bench thus reasoned that in view of the above, it is clear that the ratio of four Judge judgment in Prabhakar Ramkrishna Jodh's case (supra) that a Writ Petition can be entertained at the instance of a teacher of a private College affiliated to the College, whose service conditions are governed by a statutory provision still holds good and no tinkering of the said ratio can be read in Vidya Ram's case (supra).

The Full Bench of the Kerala High Court held that in Madhavan Pillai's case (supra) followed the judgment in Vidya Ram's case (supra) without referring to the ratio of Prabhakar Ramkrishna Jodh's case (supra), which was a four Judge Bench judgment and was binding.

The Bench said that the second case relied on by the Full Bench  did not lay any ratio that even if there is a statutory breach, Writ Petition will not lie. “The Full Bench relied on a ratio in those two judgments, which was not there”, opined the Bench.

The Bench further held that the judgment of the Apex Court  in Andi Mukta SMVSSJMS Trust's case (supra) and Ramesh Ahluwalia's case (supra) and Prabhakar Ramkrishna Jodh's case (supra) are clearly applicable in the present case which lays down that a Writ Petition is maintainable if there is violation of statutory obligation.

The Bench thus answered the issue of maintainability of the writ petition in favour of the petitioner that in view of the judgments of the Apex Court, , the Writ Petition is clearly maintainable and held that “the Full Bench judgment of this Court in Madhavan Pillai's case (supra) cannot be followed in view of the clear pronouncement laid down by the Apex Court as noted above.The service conditions of a Principal and teachers of an affiliated College are governed by the statutory provisions. The Writ Petition, at the instance of such teacher or Principal, is thus, clearly maintainable.”

On merits, the Bench said that the petitioner's appointment not being on deputation, treatment of the appointment of the petitioner as deputation and termination of the deputation is wholly without jurisdiction and beyond the power of the management. The management could have taken disciplinary action in accordance with Section 63 of the Act, 1985 and could not in any other manner terminate the employment of the petitioner.'

“We, thus, are of the clear view that the letter dated 12.10.2004 is without jurisdiction. The petitioner, who was substantively appointed by direct recruitment after following due procedure in the Act and Rules, has been illegally and arbitrarily treated to be on deputation by the management and the order dated 12.10.2004, thus, is unsustainable and deserves to be set aside. We further observe that the order dated 12.10.2004 being not covered by any of the penalties as contemplated under Section 63(6) of the Act, 1985, there is no remedy available to the petitioner to file an appeal before the University Appellate Tribunal. Thus, neither the earlier judgment of the Full Bench of this Court dated 27.7.2004 nor the provisions of Section 63(6) shall come in the way of the petitioner approaching this Court for exercise of jurisdiction under Article 226 of the Constitution. We, thus, hold the order dated 12.10.2004 unsustainable and set aside the said order.”

Rejecting the contention of the counsel for the management has further submitted that minority institution has right to select its Principal and, hence the right of minority institution to terminate the services of its teachers has also to be conceded, the Bench said:

 “There is no dispute that in the field of selection of a teacher or Principal, minority institution has certain discretion. But, selection of teachers and Principal of minority institution, which is  receiving aid from the Government and affiliated to the University, has to be regulated according to the provisions and Statute as noted above. Minority institution cannot claim any unfettered right to make any selection. In so far as termination of service of a teacher of a minority institution affiliated to University and receiving aid from the State, consequent to disciplinary enquiry, the right is regulated and controlled by a statutory provision. Statute 75 provides for procedure of imposition of major penalty. The said procedure for imposing penalty is applicable to private institutions, both minority and non-minority.”

The Bench was of the view that interest of justice will be served in directing payment of a lump sum amount to the petitioner by the management of the fourth respondent College, instead of directing reinstatement to the post of Principal. The Bench accordingly directed the management to pay the petitioner a lump sum amount of Rs. 50,00,000/-  in lieu of salary which the petitioner could have received, had he not been terminated from service, within within three months from the date of the judgment.