INTRODUCTION: Having been placed under suspension through Ext.P14 dated 18.06.2014 and having been called upon to submit an explanation to the charges framed in Ext. P15 Memo dated 14.07.2014, the petitioner filed W.P.(C) No.22233 of 2014 assailing the said order of suspension as well as the directive of her employer to the petitioner to submit an explanation. At an earlier point of time, the petitioner filed W.P.(C) No. 19300 of 2014 seeking a host of reliefs, including that of continuing her in office despite the order of suspension. Today, both the matters have been taken up together for consideration and disposal. After making submissions, the learned counsel for the petitioner, however, sought leave of this Court to withdraw WP (C) No.19300 of 2014. Accordingly, through a separate order, leave shall be granted. Now, the discussion shall be confined to WP (C) No.22233 of 2014 alone. THE SCOPE OF WRIT PETITION:
2. Since the learned counsel for the 2nd respondent- employer has raised strenuous objections with regard to the very maintainability of the writ petition, this Court proposes to examine the issue of maintainability of the writ petition before going into the merits of the matter, if necessary. This Court has, therefore, required both the learned counsel to confine their submissions to the question of maintainability, with a view that if the court is satisfied that the matter requires consideration, it could proceed further to hear the matter on merits. Accordingly, both the learned counsel have made their submissions on the issue of maintainability alone.
FACTS:
3. The facts in brief are that the petitioner entered into the service of the 2nd respondent as Accountant on probation on 19.04.1999 and was later admitted in to the regular service on 01.02.2000. In the year 2006, the petitioner was promoted as Accounts Officer, and later in 2011, as a Finance Officer.
4. While the petitioner was discharging her duties as finance officer, she was placed under suspension through Ext.P14 and was further called upon to submit her explanation to the charges framed against her through Ext.P15.
5. Having filed the writ petition, the petitioner arrayed the 3rd respondent, the Executive Director of the 2nd respondent Foundation, as a respondent eonominee. Essentially, the petitioner’s case is that while she was discharging her duties as an Audit Officer, she examined the Regional Branch under the stewardship of the 3rd respondent, who then was the Regional Director. In the audit report, the petitioner was constrained to make certain adverse observations against the performance of the 3rd respondent. Though the 2nd respondent, based on the audit report submitted by the petitioner, conducted an enquiry and found against the 3rd respondent on most counts, in view of the change in management, no action was taken against the 3rd respondent. Under those circumstances, the 3rd respondent nursed a grudge against the petitioner and continued to harass her. It appears that it has resulted in two crimes having been registered against the 3rd respondent at the behest of the petitioner. Further, the petitioner also filed W.P. (C) No. 10777 of 2014, in the manner of quo warranto, questioning the very legality of the 3rd respondent’s continuing as Executive Director, despite his superannuation in March, 2014. These facts have been stated solely for the purpose of supplying the supposed motive behind the entire allegations.
6. This backdrop, as has been averred by the petitioner, assumes importance, since the the learned counsel for the petitioner has contended that the petitioner was placed under suspension by the 3rd respondent in his capacity as Executive Director only as a matter of personal vendetta.
PETITIONER’S SUBMISSIONS:
7. Be that as it may, the learned counsel for the 2nd respondent, who vehemently questioned the maintainability of the writ petition, has supplied the specifics concerning the legal status of the 2nd respondent, the employer of the petitioner. According to him, the 2nd respondent is a registered society with registration No. 491/95, having been registered under the provisions of the Travancore Cochin Literary Scientific and Charitable Societies Registration Act (Act 12 of 1995).
8. The learned counsel for the 2nd respondent has further stated that it is a private society with no control of Government whatsoever. To put the entire submissions of the learned counsel for the 2nd respondent in perspective, it can be stated that the 2nd respondent Foundation is not a State or an instrumentality of a State or even any other authority, either under Article 12 or under Article 226 of the Constitution of India.
9. In the face of the primary objection, since the initial burden is placed on the petitioner to establish that the writ petition is maintainable, the learned counsel for the petitioner took the trouble of making submissions to convince the Court that the 2nd respondent is not only an instrumentality of State discharging public functions, but also has the service regulations which are not in the realm of a private contract. Expatiating on the submissions, the learned counsel has firstly submitted that on an earlier occasion, this Court, per another learned single Judge, heard the matter at length on the issue of maintainability and admitted the writ petition to be considered on merits. According to the learned counsel, since the writ petition has already been admitted, the issue of maintainability cannot be re-agitated. In other words, once this Court has decided to exercise its extraordinary jurisdiction under Article 226, no technicality should come in the way.
10. The learned counsel has also submitted that the 2nd respondent is a specialised agency which has been accredited by the Government of Kerala. With its expertise, the 2nd respondent helps the Local Self Government institutions, such as Grama Panchayath, in planning and developing water conservation and sanitation. In fact, in terms of the Government institutions, the 2nd respondent is the only agency which can be consulted and taken help of by the Local Self- Government Institutions. Accordingly, the 2nd respondent, contends the learned counsel for the petitioner, not only acts as an instrumentality of the State but also discharges public functions. The learned counsel has also submitted that the petitioner is not an employee on a contract basis; on the contrary, she is a regular employee governed by the service regulations of the 2nd respondent. In that regard, the learned counsel has tried to advance arguments distinguishing between a contract involving an employer and contract employees on one hand, and the employer and regular employees on a permanent basis on the other.
11. According to the learned counsel, had it been contractual employment, the service regulations could have been in the realm of private agreements. The service registrations governing the permanent employees, such as the petitioner, are, in the submission of the learned counsel, in the nature of a public document, the violation of which is amenable to writ jurisdiction of this Court. In support of his submissions, the learned counsel for the petitioner has placed reliance on the decision reported in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691; Ramesh Ahluwalia v.
State of Punjab, (2012) 12 SCC 331; Popular Housing and Regeneration Community Association Ltd. v. Donoghue, [2001] EWCA Civ 595.
12. Though the learned counsel for the petitioner has placed reliance on Municipal Corpn. v. Jiwan Singh, (2010) 15 SCC 457, it is concerning keeping employees in ‘suspended animation’ by withdrawing work from them, and not assigning any duty to them till the case against them was decided. As it touches upon the merits of the matter, it is not required to be addressed at this juncture.
RESPONDENTS’ SUBMISSIONS:
13. Per contra, the learned counsel for the 2nd respondent has submitted that the 2nd respondent is a private entity, being a Society with no manner of government control over it. The leaned counsel has also submitted in the alternative that 2nd respondent has not been discharging any public functions, and at any rate, the issue raised in the present writ petition being a service dispute involving the 2nd respondent and its employee, it cannot partake the character of any public function. According to him, even when a private entity is amenable to writ jurisdiction, in view of the expansive scope of Article 226 of the Constitution of India, the issue raised in the writ petition ought to concern the discharge of public function by the said entity. In the present instance, the subject matter of the writ petition is purely a contractual dispute involving employer and employee of a private organisation.
14. Addressing the aspect that the 2nd respondent is an accredited agency, the leaned counsel has submitted that had there been any dispute with regard to the 2nd respondent’s discharging its functions as an accredited agency, polemically, the acts of the 2nd respondent could have been impugned before this Court under Article 226 of the Constitution of India. On the contrary, when it is a matter of dispute involving an employer and an employee having no element of public function, the writ jurisdiction is clearly out of bounds. The leaned counsel has, therefore, urged this Court to dismiss the writ petition at the threshold as being not maintainable. In this regard the learned counsel for the second respondent has placed reliance on Binny Ltd. v. V. Sadasivan, (2005) 6 SCC 657; Toji Joseph and Another v. State of Kerala and Others, 2009 (3) ILR (Kerala Series) 54; Sophiamma v. Council for Indian School Certificate Examination, 2008 (2) KLT 589; Eldho K. Joseph v. The Chairman, Navy Children School & Others (WP (C) No.23527 of 2012 (M); Rani Bhatia v. St. Stephens Hospital Society & Others, 205 (2013) DLT 630.
15. Heard the learned counsel for the petitioner and the learned counsel for the 2nd respondent, apart from perusing the record.
THE ISSUES:
1. Can the issue of maintainability be gone into in an admitted matter?
2. Has the issue in the Writ Petition arisen out of the Respondent-Employer’s discharging its public duties, to make it amenable to writ jurisdiction of the Court?
16. At the very threshold, this Court may have to address the aspect of what is stated to be re-agitating the issue of maintainability even after the matter has been admitted at an earlier point of time. There is no gainsaying the fact that once the matter has been admitted to be considered on merit, this Court usually will not be inclined to re-examine the issue of maintainability. In other words, once the non-suiting is based on the plea of alternative remedy, on having the matter admitted, the court will be reluctant to re-examine the issue of maintainability, for the limitations vis-a-vis Art.226 of Constitution are self-imposed, a truism as it may sound. This Court, however, would not shy away from examining the issue, once the issue of maintainability goes to the root of the matter, as a matter of inherent jurisdiction. Differently stated, once an objection is raised that the very respondent is not at all amenable to writ jurisdiction; to wit, the respondent is a private entity without discharging any public functions, the parameters of consideration may vary entirely.
17. In the present instance, the singular issue that falls for consideration is whether the 2nd respondent is amenable to writ jurisdiction either under Article 12 or under Article 226 of the Constitution of India. If it is established that the respondent is entirely beyond the bounds of Article 226 of the Constitution, persisting with the writ petition on the ground that the petitioner’s fundamental rights have been violated would amount to horizontal application of the Constitutional constraints with respect to a private entity.
18. Once the issue of maintainability goes to the root of the matter, there is no express embargo on this Court to consider an admitted matter, more so when the admission is not preceded by any hearing on notice to all the parties concerned resulting in a speaking order. Factually, too, WP (C) No.22233 of 2014 was admitted on the date of first hearing before notice could go to the respondents. So is the case with WP (C) No.19300 of 2014 as well. Thus, there has been no occasion for the respondents to raise the issue, and consequently, for this Court to consider it on merits. This Court, therefore, has undertaken to adjudicate on the issue after affording opportunity to both the parties.
The Perennial Question:
19. The maintainability of the writ petition, or in other words, the jurisdictional aspect of public law remedy is one issue that refuses to die down, despite voluminous case law getting generated with unfailing regularity. In a continuum of adjudication, the Constitutional Courts at both ends of the federal spectrum have rendered judgments per Benches of various numerous strength. Articles 12 & 226:
20. It has to be borne in mind that the definition of State under Article 12 is only for the purpose of application of the provisions contained in Part-III, but it has nothing to do with the rest of the Articles, such as Arts.300-A, 309, 310 and 311 of the Constitution of India. Hence, even though a body of persons may not constitute the State within the instant definition, a writ under Article 226 may lie against it on a non- constitutional ground or on the ground of contravention of some provisions of the Constitution outside Part-III, e.g., where such body has public duty to perform or its acts are supported by the State or public officials. (see: Durga Das Basu’s Shorter Constitution of India, page 47, vol.I, 14th Edition).
21. In Chapter III of the Constitution, exclusively dealing with Fundamental Rights, the lexical provision is Art. 12, which is as follows:
“12. Definition.—In this part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.
22. On the other hand, Part VI dealing with the federal provision ‘States’, contains Article 226, which is as follows:
“226. Power of High Courts to issue certain writs.—(1) Notwithstanding anything in Article 32, [* * *] every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including [writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without—
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32.
23. Essentially, not in literal terms though, Part III of the Constitution begins with Art.12 and ends with Art.32, forming an arch with Art.21 being its keystone. As such, importing the lexical limitation of Art.12 for every constitutional remedy may not be necessary. In the present instance, the discussion could be with regard to the scope and ambit of Art.226 of the Constitution, rather that of Art.12.
24. In his celebrated cerebral work on Constitutional Law, the learned author D.D. Basu has enlisted the agencies against whom a writ under Art.226 lies:
“(i) the State (Government); (ii) an authority; (iii) a statutory body;
(iv) an instrumentality or agency of the State; (v) a company financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body under liability to discharge any function under any statute, to compel it to perform such a statutory function. However, a writ of mandamus can be issued to any person or authority performing a statutory function. However, a writ of mandamus can be issued to any person or authority performing public duty, owing positive obligation to the affected party. Where the cooperative society is not the department of the State and is also not a creature of a statue but is merely governed by a statute, i.e., it is a private party, writ petition against it would be maintainable only if it is established that a mandatory provision of a statute has been violated.”
Further as to what purpose, the learned Author would say:
“4. ‘Any other purpose’ means a purpose for which any of the writs could, according to well-established principles, issue. The result is that while under the first part, a writ may be issued under the Article only after a decision that the aggrieved party has a fundamental right and that it has been infringed under the second part, it may be issued only after a finding that the aggrieved party has a legal right which entitles him to any of eh aforesaid writs and that such right has been infringed. ‘Any other purpose,’ in short, means ‘the enforcement of nay legal right and the performance of any legal-duty’. A legal right, of courts, means any legally enforceable right, and includes contractual right, other than merely personal right. When there is negligence of public duty on the face of it and infringement of Art. 21, there will be no bar to proceed under Art. 226.”
Public-Private Dichotomy:
25. It is not seriously disputed by the learned counsel for the petitioner that the State has any manner of control over the 2nd respondent. All that the petitioner has insisted on is that the 2nd respondent is an accredited agency and all the Local Self Government Units are mandated to approach the 2nd respondent in the matters of conservation and sanitation.
26. It is axiomatic that, expansive as Article 226 of the Constitution has been, to bring any entity within the scope of the said article, it should have been either a public body or a body discharging public functions. If the private body is discharging a public function, every one of its acts is not amenable to writ jurisdiction, but only that dispute that arises out of, or during the course of the discharge of, the public duty.
27. In this regard, we may examine Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691, which is the fulcrum for the submissions of the learned counsel for the petitioner. Facts of the said case are that the appellant is a public trust, running a science college at Ahmedabad. It has a permanent affiliation to the Gujarat University, and the employees are paid in the pay scale recommended by the University Grants Commission. When the retrenched employees filed a writ petition seeking a direction to the Trust to pay the arrears of salary, the Trust, on its part, took, inter alia, on objection that the trust is not a statutory body and is not subject to the writ jurisdiction of the High Court. The trust, having suffered an adverse order in the High Court, took the matter to the Supreme Court. Repelling the objections on the maintainability of the writ petition under Art.226 of Constitution of India, their Lordships have held as follows:
“16. 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. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants-trust was managing the affiliated college to which public money is paid as Government aid. Public money paid as Government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like Government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. (See-The Evolving Indian Administrative Law by M.P. Jain (1983) p.
266). So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character.
28. In the present instance no public money is paid as Government aid. The 2nd respondent is not subjected to any statutory or even supervisory control of any Governmental agency, nor are the activities of the 2nd respondent closely supervised by one authority or another of the Government.
29. Another judgment the learned counsel for the petitioner has placed reliance on is Ramesh Ahluwalia v. State of Punjab, (2012) 12 SCC 331. It is a case that has essentially been decided by a learned Division Bench of the Supreme Court based on its earlier decision in Rudani, rendered by another coeval Bench.
30. In this case, the appellant, working as an Administrative Officer in a private educational institution, was subjected to disciplinary proceedings and was removed from service. When he filed a writ petition laying a challenge against his removal, the respondent school, a private entity, took the objection of maintainability. A learned Division Bench of the Hon’ble Supreme Court, placing reliance on Rudani, has held that if a private body is performing public functions which are normally expected to be performed by the State authorities, recourse to Art.226 of Constitution is sustainable. Essentially, the ratio of V. R. Rudani has been reiterated by concluding that the respondent school, by imparting education, does discharge a public function.
31. In Poplar Housing and Regeneration Community Association Ltd. v. Donoghue, [2001] EWCA Civ 595, another case relied on by the learned counsel for the petitioner, the facts are that the appellant had been provided with housing by Tower Hamlets, a public body, pending a decision as to whether she was intentionally homeless. Later, Tower Hamlets decided that the appellant was intentionally homeless and notified the defendant to that effect. The decision was confirmed in revision as well. In January or February 2000, Tower Hamlets issued proceedings for possession against the appellant. The authority then discovered that it was not the landlord and the proceedings were withdrawn. On 26th June 2000, Tower Hamlets wrote to the defendant informing her that she was a tenant of Poplar, a private body. On 27th June, Poplar issued a notice to the appellant proposing to take possession. The appellant has claimed that an order for possession would contravene her rights to respect for her private and family life and respect for her home, and it is contrary to Article 8 of Schedule 1, Human Rights Act 1998 ("HRA").
32. In that backdrop, a question arose whether Poplar, the respondent, is deemed to be a public body or performing public functions, the proceedings can be initiated under HRA only against a public body or a body that is performing public functions. In that context, Lord Woolf, CJ, observes:
“While these are the most important factors in coming to our conclusion, it is desirable to step back and look at the situation as a whole. As is the position on applications for judicial review, there is no clear demarcation line which can be drawn between public and private bodies and functions. In a borderline case, such as this, the decision is very much one of fact and degree. Taking into account all the circumstances, we have come to the conclusion that while activities of housing associations need not involve the performance of public functions in this case, in providing accommodation for the defendant and then seeking possession, the role of Poplar is so closely assimilated to that of Tower Hamlets that it was performing public and not private functions. Poplar therefore is a functional public authority, at least to that extent. We emphasise that this does not mean that all Poplar's functions are public. We do not even decide that the position would be the same if the defendant was a secure tenant. The activities of housing associations can be ambiguous. For example, their activities in raising private or public finance could be very different from those that are under consideration here. The raising of finance by Poplar could well be a private function.
(emphasis added)
33. The upshot of the discussion in Poplar is that all activities of a body do not partake of public function character. In the event of a private body, the activity must be so closely assimilated to that of a public body. In this case, is the action of a private entity in initiating disciplinary proceedings against its employee and consequently in placing the said employee under suspension so closely assimilated to that of a public body? If the answer were to be in the affirmative, I am afraid, every service dispute involving a private entity would be amenable to writ jurisdiction. The answer, in my considered opinion, is, however, in the negative.
34. In between Rudani (1989) and Ramesh Ahluwalia (2013) stands Binny Ltd. v. V. Sadasivan, (2005) 6 SCC 657, on which the learned counsel for the 2nd respondent placed a heavy reliance. The facts of the matter are that the respondents were working as members of the management staff of the appellant company, which was engaged in the manufacture of cloth. When their services were terminated, they filed a writ petition impugning the termination.
35. A learned Division of the Hon’ble Supreme Court in the said case has prefatorily observed that it is an accepted principle that recourse to Art.226 is a public law remedy and it is available against a body or person performing public law function.
36. In para 11 of the judgment, their Lordships have observed thus:
“11. Judicial review is designed to prevent the cases of abuse of power and neglect of duty by public authorities. However, under our Constitution, Article 226 is couched in such 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... Judicial review is designed to prevent the cases of abuse of power and neglect of duty by public authorities. However, under our Constitution, Article 226 is couched in such 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.
(emphasis added)
37. As part of the ratiocination, their Lordships have placed reliance on Judicial Review of Administrative Action (Fifth Edn.) by de Smith, Woolf & Jowell, a celebrated commentary. It is worth requiting the opinion of de Smith et al., in Chapter 3, para 0.24, of the said commentary, which is as follows:
"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 public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. This may happen in a wide variety of ways. For instance, a body is performing a public function when it provides "public goods" or other collective services, such as health care, education and personal social services, from funds raised by taxation. A body may perform public functions in the form of adjudicatory services (such as those of the criminal and civil courts and tribunal system). They also do so if they regulate commercial and professional activities to ensure compliance with proper standards. For all these purposes, a range of legal and administrative techniques may be deployed, including: rule-making, adjudication (and other forms of dispute resolution); inspection; and licensing.
Public functions need not be the exclusive domain of the state. Charities, self-regulatory organizations and other nominally private institutions (such as universities, the Stock Exchange, Lloyd's of London, churches) may in reality also perform some types of public function. As Sir John Donaldson M.R. urged, it is important for the courts to "recognize the realities of executive power" and not allow "their vision to be clouded by the subtlety and sometimes complexity of the way in which it can be exerted". Non-governmental bodies such as these are just as capable of abusing their powers as is government."
38. Having observed thus, their Lordships have examined Rudani, and have distinguished the said case by holding that the college therein was an aided institution and imparting education to students. It was in this background that the Court held that there was a public law element in the matter involved therein and that the college authorities were bound to pay salary and allowances to the teachers. The eventual conclusion was that the said case did not emanate from a contract of employment between the workers and the private body. For that reason, the Rudani's case cannot be applied to the facts of the present case.
39. In the end, it is held in para 29 of the judgment as follows:
“29. [T]his 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 than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies...”
...
32. Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body which is not “State” within the meaning of Article 12 of the Constitution and such body is amenable to the jurisdiction under Article 226 of the Constitution and the High Court under Article 226 of the Constitution can exercise judicial review of the action challenged by a party. But there must be a public law element and it cannot be exercised to enforce purely private contracts entered into between the parties.
33. We are unable to perceive any public element in the termination of the employees by the appellant in Civil Appeal No. 1976 of 1998 and the remedy available to the respondents is to seek redressal of their grievance in civil law or under the labour law enactments especially in view of the disputed questions involved as regards the status of employees and other matters...”
Decisions of Coordinate Benches & Stare decisis:
40. It has to be seen that Rudani, Ramesh Ahluwalia, and Sadasivan have all been decided by Benches of coeval strength. Rudani identified the entity as a public body; Ramesh Ahulwalia identifies the function as a public duty, whereas Sadasivan has introduced a third element. Apart from the dichotomy of public body and public duty, it has held that the very dispute ought to have arisen out of the denial of any right in connection with the public duty imposed on such body.
41. In the face of two sets of decisions of coeval Benches having seeming contradictions, it is essential that, as a matter of judicial propriety, one should make every effort to adhere to the principle of stare decisis, lest it should amount to precedential prevarication. Rudani, as a precedent, does not pose much of a problem, for it is categorically held therein that the very appellant entity is a public body receiving government aid. There appears to be an element of irreconcilability between Ramesh Ahluwalia and Sadasivan. Both concern themselves with the service dispute, and in both the instances, the employers are private entity, but discharging public duty. Nevertheless, one element of adjudication that is present in Sadasivan and absent in Ramesh Ahulwalia is whether the very dispute should arise out of that public duty, for not all the functions of these private bodies partake the character of public duty; some can be purely private or contractual. Thus, it is a question of drawing a line of demarcation.
42. Chronologically, Rudani being the earliest, it was examined and distinguished in Sadasivan. But, in Ramesh Ahulwalia, Sadasivan, though prior in point of time, has not been brought to the notice of their Lordships, who thus do not have an opportunity of examining its binding nature. On a careful judicial evaluation of these judgments, I am of the considered opinion that the ratio in Sadasivan that even the dispute ought to have arisen out of that public duty has remained sub silentio.
Sub silentio:
43. It is essential to adumbrate the doctrine of sub silentio. The Hon’ble Supreme Court in Municipal Corporation of Delhi v. Gurnam Kaur, (AIR 1989 SC 38) observed thus:
"In Gerard v. Worth of Paris Ltd. (K), (1936) 2 All ER 905 (CA) nevertheless, since it was decided "without argument, without reference to the crucial words of the rule, and without any citation of authority", it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed."
44. Such a decision cannot be deemed to be a law declared to have binding effect as is contemplated by Article 141 of the Constitution of India. (vide State of U. P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139). A decision not expressed, not accompanied by reasons and not proceeding on a conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgment is not the ratio decidendi. This is the rule of sub silentio, in the technical sense when a particular point of law was not consciously determined. (vide Arnit Das v. State of Bihar (AIR 2000 SC 2264))
45. A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of Point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided Point B in his favour; but Point B was not argued or considered by the court. In such circumstances, although Point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on Point B. Point B is said to pass sub silentio. (Professor P.J. Fitzgerald, editor of Salmond on Jurisprudence, 12th Edn. At page 153, as quoted in Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101).
46. Viewed from another legal perspective, precedentially, one prevalent school of jurisprudential thought is that in a series of judgments of co-equal benches, in the face of cleavage or conflict of judicial opinion, the latest judgment should prevail. This school of thought, I am afraid, is fallacious. In fact, on the said issue, though has not been decided by any definitive pronouncement of the Hon’ble Supreme Court under Article 141 of the Constitution of India, guidance is available in the form of Full Bench judgments and also Larger Bench pronouncements of various other High Courts.
47. A learned Division Bench of the High Court of Andhra Pradesh S.K.Mahaboob Ali, Ex-CRPF Constable, Nandyal v. Director General of Police, Central Reserve Police Force, New Delhi and others, 2005(1) ALT 412 (D.B.), has held that the judicial propriety and judicial discipline require that binding precedent shall be necessarily followed. However, while adopting cautious approach in case of conflicting Judgments of the Apex Court of co-ordinate Benches cited before the Courts, Courts may have to carefully scrutinize whether reasons had been recorded while laying down the ratio and whether the concerned statutory provisions had been considered and whether the other prior decisions or the binding decisions also had been referred to, if any available on the point by the Court while rendering such Judgments.
48. A Special Bench of Five Judges of the Madhya Pradesh High Court in Jabalpur Bus Operators Association and others v. State of Madhya Pradesh and another, AIR 2003 MP 81, examined in depth the issue of precedential value of conflicting judgments of coordinate Benches. It has eventually held that in case of conflict between judgments of two Division Benches of equal strength, the decision of earlier Division Bench shall be followed, except when it is explained by the latter Division Bench in which case the decision of latter Division Bench shall be binding. Their Lordships have also observed that no decision of Apex Court has been brought to their notice which holds that in case of conflict between the two decisions by equal number of Judges, the later decision is binding in all circumstances, or the High Courts and subordinate Courts can follow any decision which is found correct and accurate to the case under consideration.
49. Indeed, the Special Bench has observed that High Courts and Subordinate Courts should lack competence to interpret decisions of Apex Court since that would not only defeat what is envisaged under Article 141 of the Constitution of India but also militate hierarchical supremacy of Courts. The common thread which runs through various decisions of Apex Court seems to be that great value has to be attached to precedent which has taken the shape of rule being followed by it for the purpose of consistency and exactness in decisions of Court, unless the Court can clearly distinguish the decision put up as a precedent or is per incuriam, having been rendered without noticing some earlier precedents with which the Court agrees.
50. In my considered opinion, the position would be this: When the subsequent co-equal bench renders the judgment in ignorance of the earlier pronouncement of co-equal bench, the judgment of the previous bench will have binding effect. On the other hand, if the latter bench refers to the earlier one and distinguishes it, to that extent of distinction, the latter one binds.
51. In the light of the above discussion, it behoves me to adhere to the ratio laid down in Sadasivan on the issue of maintainability of a writ petition in the circumstances of the present case.
52. It is interesting to note that in Rani Bhatia, a learned Single Judge of High Court of Delhi has distinguished Ramesh Ahulwalia on facts observing that the right enforced in Ramesh Ahluwalia flowed under Bye-law 47 of the Central Board of Secondary Education Affiliation Bye-Laws. A statutory Tribunal called Punjab School Education Tribunal was constituted to inter alia decide disputes pertaining to disciplinary actions. The bye-laws prescribed the manner to take disciplinary action. It is trite, observed the High Court of Delhi, that rights even flowing under statutory bye-laws can be enforced under writ jurisdiction. Thus, even on factual front, Ramesh Ahulwalia stands on a different footing.
53. In the Administrative Law (9th Edn.) by Sir William Wade and Christopher Forsyth (OUP) at p.621, as quoted in Sadasivan, brought out the aspect of forum availability while asserting the same rights but vis-a-vis different authorities in the following manner:
“[I]f for example a minister or a licensing authority acts contrary to the principles of natural justice, certiorari and mandamus are standard remedies. But if a trade union disciplinary committee acts in the same way, these remedies are inapplicable: the rights of its members depend upon their contract of membership, and are to be protected by declaration and injunction, which accordingly are the remedies employed in such cases.”
Has the issue in the Writ Petition arisen out of the Respondent-Employer’s discharging its public duties, to make it amenable to writ jurisdiction of the Court?
54. Indeed, in Sadasivan, the issue of employment in private entity with public duty obligations has been specifically dealt with. Drawing a distinction between the two sources of employment, it is observed as follows:
“16. [I]n the matter of employment of workers by private bodies on the basis of contracts entered into between them, the Courts have been reluctant to exercise the powers of judicial review and whenever the powers were exercised as against private employers, it was solely done based on public law element involved therein.
...
26. [P]ublic-policy principles can be applied to employment in public sector undertakings in appropriate cases. But the same principles cannot be applied to private bodies. There are various labour laws which curtail the power of the employer from doing any anti-labour activity. Sufficient safeguards are made in the labour law enactments to protect the interests of the employees of private sector. The service rules and regulations which are applicable to government employees or employees of public sector undertakings stand on a different footing and they cannot be tested on the same touchstone or enforced in the same manner...”
55. In Toji Joseph (supra), a leanred Single Judge of this Court, placing reliance on Sadasivan, has held that though there cannot be any dispute that Writ Petition is maintainable under Article 226 of the Constitution of India even against a private Management for enforcing the " public duty" cast upon them, it cannot be said that the same is available also for enforcing the terms and conditions of service of the Teachers/Employees. Having held thus, his Lordship has gone further to observe that, this, however, does not mean that the petitioners can only curse their fate. They are very much entitled to pursue the matter by filing appropriate Civil Suit before the competent Civil Court, claiming compensation for the wrongful termination of service, on the basis of the specific pleadings and evidence to be adduced. The same position has been reiterated in Sophiamma and Eldho K. Joseph (supra).
Application of Law to the Facts of the Case:
56. Adverting to the factual controversy to the extent required, this Court finds that the 2nd respondent is society registered under Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act of 1955, as is evident from Ext. P1 Memorandum of Association. The learned counsel for the petitioner has taken this Court through the Aims and Objectives of the 2nd respondent foundation and also Ext. P2 Government Order of Accreditation given to it. He has contended that the 2nd respondent does discharge functions which are in the nature of public duty. At the cost of repetition it may have to be stated that at no point of time has there been any controversy that the 2nd respondent discharges functions which partake the character of public duty. The question, however, remains whether the dispute taken before this Court too got any element of public duty, or in the alternative, whether it has arisen out of that public duty discharged by the 2nd respondent. Based on a series of judgments referred to above, I am of the considered opinion that the answer to the said question is in the negative.
57. Ext. P6 is the Manual for Management Control Procedures and Service Rules, 2003. The said Manual, inter alia, deals with the disciplinary proceedings as well. In clause 2.25 thereof, the procedure for filing appeals against orders of punishment in the disciplinary proceedings is prescribed. Touching on the procedural aspects of the disciplinary proceedings, the submission of the learned counsel for the petitioner is twofold: there is no specific provision empowering the disciplinary authority to place any employee under suspension. The other, and more substantive, submission is that the service rules governing the employees of the 2nd respondent are not in the nature of a private contract. To be more specific, the learned counsel for the petitioner has contended that at no point of time has there been any service contract entered into between the 2nd respondent, the employer, and the petitioner, the employee. According to the learned counsel, since the service conditions governing the petitioner are in the nature of manual of rules, they cannot be treated as part of a mere private agreement without any element of public duty.
58. Though, the submission of the learned counsel for the petitioner, in the first blush, appears attractive, I am afraid it cannot stand the legal scrutiny. In Roshan Lal Tandon v. Union of India, AIR 1967 SC 1889, a Constitution Bench of the Supreme Court has observed that the origin of Government service is contractual; there is an offer and acceptance in every case, but once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. It is further observed that the hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. In fact, under these circumstances, the recourse to public law remedy comes into picture. It is, by any reckoning, fallacious to contend that there is no element of contract in public service.
59. In the present instance, whatever the nomenclature given to the service conditions governing the employees of the 2nd respondent, they are not statutory in nature. In other words Ext. P6 service rules have not been framed under any statute, to say the least. Thus the dichotomy sought to be introduced by the learned counsel for the petitioner that the service rules framed and applied, without actually entering into individual contracts with the employees, are of public nature cannot be sustained.
An Aside:
60. The issue raised by the learned counsel for the petitioner that Ext.P6 service rules do not provide for suspension may have to be answered as an aside, but without prejudice to the rights and contentions of the petitioner before an appropriate forum, if she decides to lay challenge against the disciplinary proceedings said to have been initiated against her. Indeed, through Ext.P14 the petitioner has been placed under suspension. The learned counsel for the 2nd respondent could not bring to the notice any express provision empowering the disciplinary authority to place a delinquent under suspension. The issue of inherent power in this regard is no longer res integra.
61. At the earliest point of time in Hotel Imperial v. Hotel Workers' Union, AIR 1959 SC 1342, a three Judge Bench of the Supreme Court has held that in cases where no standing orders provide for suspension without payment of wages, it is not open to the employer to withhold wages as the orders of suspension made in those cases merely amounted to this that the employers are not prepared to take work from the workmen. Even so, the right of the workmen to receive wages has remained and the employer is bound to pay the wages during the period of so-called suspension. Later a Constitutional Bench in T. Cajee v. U. Jormanik Siem, AIR 1961 SC 276, has clarified Hotel Imperial case by holding that in the absence of such power the master can pass an order of interim suspension but he will have to pay the servant according to the terms of contract between them. In L.K. Verma v. HMT Ltd., (2006) 2 SCC 269, having acknowledged the classification of suspension, the Supreme Court has further said that an order of suspension can also be passed by the employer in exercise of its inherent power in the sense that it may not take any work from the delinquent officer but in that event, the entire salary is required to be paid.
CONCLUSION:
In the facts and circumstances, this Court holds that the 2nd respondent does not answer the description of a State, an agency or an instrumentality of State or that of any other authority. Despite the fact that as an accredited agent to the Government it discharges duties of public nature, a mere service dispute in terms of Ext.P6 non-statutory service rules does not give the necessary wherewithal to the petitioner to take recourse to Article 226 of Constitution of India. Accordingly, the writ petition is dismissed at the threshold as not maintainable, but leaving it open for the petitioner to explore other legally permissible methods of grievance redressal. No order as to costs.
DAMA SESHADRI NAIDU, JUDGE.
rv