This writ petition is filed challenging Ext. P2 order passed by the 1st respondent herein terminating the service of the petitioner. 2. The facts involved in the case would disclose that the petitioner was appointed by the 1st respondent as per Ext. P1 proceedings dated 3.8.2010 as a Tutor in the Department of Community Medicine in the Academy of Medical Sciences of Pariyaram. According to the petitioner, though he has served in the Department to the satisfaction of all concerned, he was issued with a memo dated 17.8.2010 (Ext. P2) terminating his service.
3. According to the petitioner, no valid or legally sustainable reason has been stated for terminating him and there is clear violation of principles of natural justice as no notice had been issued before passing Ext. P2 order. Hence, the petitioner seeks to quash Ext. P2 and further proceedings, for a direction to reinstate him in the service of the 1st respondent and for other consequential reliefs.
4. Counter affidavit is filed by respondents 1 and 2 inter alia stating that the 1st respondent does not fall within the ambit of State or other authority as defined under Article 12 of the Constitution of India. It is neither a public body or authority and it does not carry on any public function. It is a society registered under the Society Registration Act and being a private body, it is not amenable to writ jurisdiction under Article 226 of the Constitution of India. It is contended that the dispute is of a private nature unconnected with public duty and since there is no violation of any statutory provision, it is not open for the petitioner to approach this Court.
5. Further, it is contended that the appointment of the petitioner itself was illegal. The final authority of the society is the governing council. The petitioner was appointed by the Director, who had no authority or power to make such appointment. The selection and appointment of faculties could be made only by the Executive Committee and in so far as the petitioner had not been selected by the Executive Committee, he cannot be appointed by the Director and any such appointment made was clearly wrong. That apart, even assuming that he has the power to make selection, Ext. P1 could be sustained only in the event it being ratified by the Executive Committee. The Board of Directors of the Society resigned on 16.7.2010 and the Administrative Committee appointed by the Registrar under Section 33(1)((b) of the Kerala Co-operative Societies Act, took charge on 17.7.2010. The Governing Council and Executive Committee stood modified by the Administrative Committee of the 3rd respondent who took charge on 17.7.2010. The said Executive Committee did not authorise to issue Ext. P1 or ratify the same. Hence, the Executive Committee meeting which held on 14.8.2010 resolved to disengage the petitioner and Ext. P2 order came to be issued. Ext. R1(a) is the said resolution. It is on the basis of the said resolution that Ext. P2 was issued.
6. Heard the learned counsel for the petitioner and learned counsel appearing for the respondents.
7. The first issue to be considered is regarding the maintainability of the above writ petition. Counsel for the respondents has placed before me the bye-laws of the Society. It is a society registered under Kerala Co-operative Societies Act. Membership to the society is open for the public who possess the qualification prescribed in the Kerala Co-operative Societies Act. The management of the society vests in the Board of Directors and the Board of Directors shall constitute among themselves, Executive committee consisting of seven members, who shall have the power to make appointments to all posts for carrying on the business of the society. The object of the society inter alia includes establishment of full-fledged hospital with modern equipments and facilities and super specialities in Kannur District and to provide medical care of high standards in all branches of medical science and ancillary objects as well.
8. A perusal of the bye-laws would indicate that the State Government nor Central Government has any effective control over the society other than in respect of the fact that the society is bound by the provisions of the Kerala Co-operative Societies Act. That apart, it shall always be open to the State Government or Central Government to take shares in the company. Therefore, it cannot be disputed that the 3rd respondent which runs the Academy of Medical Sciences, is not State or other authority within the meaning of Article 12 of the Constitution of India.
9. Learned counsel for the petitioner however relied upon a judgment of the Supreme Court to argue for the proposition that the High Court can exercise vast jurisdiction under Article 226 of the Constitution even in instances where service matters relating to co- operative societies are involved. Reference is made to the decision of U.P. State Co-operative Land Development Bank Ltd., v. Chandra Bhan Dubey and others, (1999) 1 SCC 741. That was a case in which the Supreme Court was concerned with the question as to whether U.P. State Co-operative Land Development Bank Ltd., was an “authority and instrumentality of the State amenable to writ jurisdiction of the High Court.” In that case, the High Court had set aside the dismissal orders passed against the respondents for violating the service rules as applicable to them. The High Court, while setting aside the dismissal orders, found that they were vitiated by non-compliance of rules of natural justice and also in violation of statutory rules as applicable to the employees of the appellant. The Co-operative Society, though registered under U.P. Co-operative Societies Act, 1965 was also constituted under the U.P. Co- operative Land Development Bank Act, 1965. Therefore, it is governed by the provisions of both the Acts and Rules framed thereunder. Reference is also made to various decisions relating to Section 122 of the Societies Act which gives the power to the Government for constituting an authority to control the employees of co-operative societies and also the regulations framed to ensure the service conditions of the employees who are appointed in the full-time service of a co-operative society. Apparently, in that case, rules have been framed under Section 30 of the Bank Act known as U.P.
Co-operative Land Development Rules, 1971, prescribing service conditions of employees of the appellant. The Supreme Court therefore came to the finding that the service rule framed under the statute has the approval of statutory body and hence has the force of law.
10. It is stated in paragraphs 27 and 28 as under:
“27. In view of the fact that control of the State Government on the appellant is all-pervasive and the employees had statutory protection and therefore the appellant being an authority or even instrumentality of the State, would be amenable to writ jurisdiction of the High Court under Article 226 of the Constitution, it may not be necessary to examine any further the question if Article 226 makes a divide between public law and private law. Prima facie from the language of Article 226, there does not appear to exist such a divide. To understand the explicit language of the article, it is not necessary for us to rely on the decision of the English courts as rightly cautioned by the earlier Benches of this Court. It does appear to us that Article 226 while empowering the High Court for issue of orders or directions to any authority or person, does not make any such difference between public functions and private functions. It is not necessary for us in this case to go into this question as to what is the nature, scope and amplitude of the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. They are certainly founded on the English system of jurisprudence. Article 226 of the Constitution also speaks of directions and orders which can be issued to any person or authority including, in appropriate cases, any Government. Under clause (1) of Article 367, unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the legislature of the Dominion of India. “Person” under Section 2(42) of the General Clauses Act shall include any company or association or body of individuals, whether incorporated or not. The Constitution is not a statute. It is a fountainhead of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals, whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this Court has laid down certain guidelines and self- imposed limitations have been put there subject to which the High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. The High Court does not interfere when an equally efficacious alternative remedy is available or when there is an established procedure to remedy a wrong or enforce a right. A party may not be allowed to bypass the normal channel of civil and criminal litigation. The High Court does not act like a proverbial “bull in a china shop” in the exercise of its jurisdiction under Article 226.
28. We, therefore, hold that the appellant is an authority controlled by the State Government and the service condition of the employees of the appellant particularly with regard to disciplinary proceedings against them are statutory in nature and thus writ petition was maintainable against the appellant. To this extent, we agree with the High Court. However, disciplinary proceedings were held against the respondents in accordance with law with due observance of the rules of natural justice. The judgment of the High Court is, therefore, not correct to that extent.”
It is ultimately found that since the State Government has control on the appellant and the employees had statutory protection, the appellant being an authority or even an instrumentality of the State, would be amenable to writ jurisdiction of the High Court. It is further found that when any citizen or person is wronged, High Court will step into protection be that wrong be done by the State, an instrumentality of the State, a company or a co-operative society or association of body of individuals whether incorporated or not or even an individual. It is therefore found that the appellant was an authority controlled by the State Government and the service condition of the employees of the appellant, particularly with regard to disciplinary proceedings against them, are statutory in nature and thus writ petition was maintainable.
11. On the other hand, the learned counsel for the respondents while relying upon Chandra Bhan Dubey's case (supra), submits that in so far as the petitioner has not pointed out that there is violation of any statutory rules, it may not be proper for this Court to consider the claim raised by the petitioner.
Reference is also made to the judgment of this Court in Sasikumar v. Mahatma Gandhi University, 1997(2) KLT 177, wherein this Court had occasion to consider the question regarding appointment of persons by contractors, without complying with the provisions of the Rule 9 of K.S and SSR. It is held that when the appointments were made in utter disregard of the rules by a competent authority, petitioners cannot take advantage of such appointments and claim right of contractual appointment. The learned Judge also relied upon an earlier Division Bench judgment of this Court in K. Purushothaman v. Registrar and others, (1996 (1) KLJ 531), wherein this Court had occasion to hold that persons who got orders of appointment by resort to back door methods shall be sent out through back door methods.
12. Having regard to the nature of these contentions, in answer to the first question, it is all the more clear that the petitioner is challenging Ext. P2 order, which is an order of termination, issued after appointing him in terms of Ext. P1. Though the 3rd respondent society is registered under the Kerala Co-operative Societies Act as far as the appointment of the petitioner is concerned, it is not based on any specific service rules formulated by the Government or any statutory authority of the Government as the case may be. So, unlike Chandra Bhan Dubey's case (supra), this is a case where the petitioner cannot claim any benefit based on any statutory rules. Therefore, while issuing appointment order at Ext. P1, it is purely an appointment made on the basis of a contract between the 1st respondent and the petitioner. For that reason, if there is any violation of such contractual obligation, it may not be proper for this Court to entertain a writ petition.
13. Learned counsel for the petitioner, however, emphasised on the fact that there is violation of principles of natural justice. On the other hand, learned counsel for respondents points out that the very appointment was against the conditions of the bye-laws as the Director had no power to make appointment. Even if such an appointment is made, unless it is ratified by the Executive Committee, the appointment is invalid. Therefore, this is an instance where the very appointment is against the bye-laws of the society and when such a matter is brought to the notice of the committee, it had resolved to terminate the service of the petitioner.
14. Apparently, this is an instance where the very appointment of the petitioner is doubted by the Society and they had taken a decision in terms of Ext.
R1(a) to terminate the service of the employee. No doubt, if the petitioner has a grievance that such termination is illegal, definitely, he can approach the appropriate authority under the Co-operative Societies Act itself. This Court cannot adjudicate on the issue as to whether the appointment is regular and based on the bye-laws or that there is illegality in the termination order or the resolution taken by the Society in this regard. I am taking this view on account of the fact that no statutory rules had been brought to my notice to indicate that the appointment is made on the basis of any statute or rules framed under the statute, which was the case in Chandra Bhan Dubey's decision (supra). Therefore, it is not proper for this Court to exercise jurisdiction under Article 226 of the Constitution.
15. Since I have expressed my opinion not to interfere in the matter, all contentions of the parties are left open to be decided in appropriate proceedings. Kerala Co-operative Societies Act itself provides for a remedy to the petitioner to approach the Arbitration Court or Arbitrator as the case may be, to resolve any dispute. Even in relation to violation of service conditions, such a dispute can be raised and therefore there is no reason for this Court to consider the issue in this writ petition. As far as the contention regarding violation of principles of natural justice is concerned, a re-hearing of the issue will be an empty formality when the respondents are of the view that the very appointment is bad in law. Therefore, I do not think that this Court can interfere with Ext. P2 on the ground that it is in violation of the principles of natural justice.
Under these circumstances, there is no merit in the writ petition and the same is dismissed leaving open the right of the petitioner to approach the competent authority under the Kerala Co-operative Societies Act, if so advised.
Sd/- A.M. Shaffique, Judge.
Tds/