Court No. - 34
Case :- WRIT - A No. - 13805 of 2020 Petitioner :- Sharad Nath Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Abhishek Mishra Counsel for Respondent :- A.S.G.I.,Hridai Narain Pandey,Hritudhwaj Pratap Sahi,Samarath Singh,Sankalp Narain
Hon'ble Yashwant Varma,J.
Heard learned counsel for the parties.
Sri Samarath Singh learned counsel appearing for the respondent institution takes a preliminary objection to the maintainability of the writ petition and contends that since the terms and conditions of service of the petitioner are not governed by any statutory rules or regulations, it would not be maintainable.
The Court in this regard places reliance upon the following pertinent observations as made by the Full Bench in Roychan Abraham v. State of U.P. and Others [2019 (3) ADJ 391 (FB)]:-
37. In State of U.P. and another vs. Johri Mal, 2004 (4) SCC 714, the Supreme Court held that for a public law remedy enforceable under Article 226, the action of a person or the authority need to fall in the realm of public law. The question is required to be determined in each case.
"The legal right of an individual may be founded upon a contract or a statute or an instrument having the force of law. For a public law remedy enforceable under Article 226 of the Constitution, the actions of the authority need to fall in the realm of public law -be it a legislative act or the State, an executive act of the State or an instrumentality or a person or authority imbued with public law element. The question is required to be determined in each case having regard to the nature of and extent of authority vested in the State. However, it may not be possible to generalize the nature of the action which would come either under public law remedy or private law field nor is it desirable to give exhaustive list of such actions."
38. Even if it be assumed that an educational institution is imparting public duty, the act complained of must have direct nexus with the discharge of public duly. It is undisputedly a public law action which confers a right upon the aggrieved to invoke extraordinary writ jurisdiction under Article 226 for a prerogative writ. Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through petition under Article 226. Wherever Courts have intervened in exercise of jurisdiction under Article 226, either the service conditions were regulated by statutory provisions or the employer had the status of 'State' within the expansive definition under Article 12 or it was found that the action complained of has public law element.
It would also be apposite to notice the following principles as enunciated by the Supreme Court in Ramkrishna Mission And Another v. Kago Kunya And Others [ (2019) 16 SCC 303]:-
"35. Thus, even if the body discharges a public function in a wider sense, there is no public law element involved in the enforcement of a private contract of service.
39. Thus, contracts of a purely private nature would not be subject to writ jurisdiction merely by reason of the fact that they are structured by statutory provisions. The only exception to this principle arises in a situation where the contract of service is governed or regulated by a statutory provision. Hence, for instance, in K K Saksena (supra) this Court held that when an employee is a workman governed by the Industrial Disputes Act, 1947, it constitutes an exception to the general principle that a contract of personal service is not capable of being specifically enforced or performed.
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41. For the above reasons, we are of the view that the Division Bench of the High Court was not justified in coming to the conclusion that the appellants are amenable to the writ jurisdiction under Article 226 of the Constitution as an authority within the meaning of the Article."
Noticing the aforesaid decisions this Court in Ram Niwas Sharma v. Union of India And Others [2020(4) ADJ 166] summarised the legalposition thus:-
15. It must be consequently held that while a body may be discharging a public function or performing a public duty and thus its actions becoming amenable to judicial review by a Constitutional Court, its employees would not have the right to invoke this Courts powers conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by statutory provisions. An educational institution may perform myriad functions touching various facets of public life and in the societal sphere. While such of those functions as would fall within the domain of a "public function" or "public duty" be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, actions or decisions taken solely within the confines of an ordinary contract of service, having no statutory force or backing, cannot be recognised as being amenable to challenge under Article 226 of the Constitution. In the absence of the service conditions being controlled or governed by statutory provisions the matter would remain in the realm of an ordinary contract of service.
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17. As has been lucidly explained, contracts of a purely private nature even though entered by bodies which may perform a public function would not be subject to judicial review. The only exception would be where such contracts are governed or regulated by statute. In the present case it is the undisputed position that the byelaws and the service conditions which apply are non statutory. They are deprived of any statutory ordainment. Such a contract, as noted above, would remain a pure private contract of service. In that view of the matter the writ petition challenging the termination of such a contract would not be maintainable.
Learned counsel for the petitioner however seeks to draw sustenance from a judgment rendered by the Supreme Court in Marwari Balika Vidyalaya v. Asha Srivastava And Others [Civil Appeal No. 9166 of 2013, decided on 14 February 2019] to submit that where the principles of natural justice are violated and the employee is one who works in a school which discharges public functions, a writ petition would be maintainable. The Court finds itself unable to sustain the aforenoted submission for the following reasons.
Firstly Marwari Balika Vidyalaya was a matter where action was taken by the District Inspector of Schools in the State of West Bengal. Although learned counsel was unable to point out clearly from that decision as to whether the respondent in that matter was governed by a private contract or statutory rules, it is evident that in terms of the conditions of employment action was taken by a State authority. Insofar as the submission relating to public duty is concerned, the Court only notes that the aforesaid aspect may have some bearing on the question of issuance of a writ of mandamus. However the discharge of a public duty can have little relevance where the Court is considering a challenge to an order of termination of an employee whose services are not governed by statutory rules or regulations. In such a situation as is well settled, there can be no order of reinstatement. In view of the aforesaid discussion, the preliminary objection is upheld.
The writ petition fails and is dismissed.
Order Date :- 28.7.2021 faraz ( Yashwant Varma, J.)