By consent of the learned counsel for both parties, the writ petition itself is disposed of.
2.The Tamil Nadu State Aids Control Society (TANSACS), the respondent herein, is a society registered under the Registration of Societies Act, 1975 vide registration No.167 of 1994. The object of the society is to prevent and control HIV/AIDS and to provide care, support and treatment to people living with HIV/AIDS (PLHAs). The Project Director, South India Aids Action Programme by her letter dated 09.08.1997 appointed the petitioner as a Counsellor and placed him at Government Hospital, Hosur. His stipend was fixed at Rs.1,500/- per month during the training period. It was made clear that on satisfactory completion of probationary period, he would be confirmed as full time trainee on condition that he agreed to sign a service contract for two years. In pursuance of the said appointment order, the petitioner joined service on 12.09.1997. By order dated 10.03.1999 issued by the Office of the Medical Officer, Government Hospital, Hosur, the petitioner was transferred and posted to the Government Head Quarters Hospital, Dharmapuri. In the said order it is stated as follows:-
With reference to the letter cited, Thiru V.C.Baskaran Counsellor posted to the STD Department of this Hospital has been transferred and posted to the Government Head Quarters Hospital, Dharmapuri. Hence, Thiru. V.C.Baskaran counsellor of this Hospital is relieved off his duties on the after Noon of 10.03.1999 and he is instructed to report for duty at Government Head Quarters Hospital, Dharmapuri forthwith.
3.But obviously, the said order relieving the petitioner from Government Hospital, Hosur was issued in pursuance of the transfer order issued by the Programme Director of SIAAP, Chennai by letter dated 03.03.1999. Accordingly he joined the Government Head Quarters Hospital, Dharmapuri.
4.While, he was working in TANSACS, the Project Director issued a show cause notice in reference letter NO.6019/ICTC/AIDS/2008 dated 27.07.2008 making certain allegations against the petitioner in the performance of his duties. The petitioner submitted his explanation for the same on 01.08.2008 denying all the allegations. Subsequently, the Project Director/Member Secretary, TANSACS, by his proceeding in Proc.No.10166/AIDS/ICTC.A-17/2009 dated 01.04.2009 issued an order of transfer transferring the petitioner from Dharmapuri and posted him as Counsellor, Magudanchavadi Public Health Centre, Salem as against an existing vacancy.
5.Subsequently, an enquiry into the allegations as mentioned in the show cause notice was ordered and a Team of Officials conducted an enquiry on 10.10.2008 and 11.10.2008. The enquiry team submitted a report confirming the allegations made against the petitioner as true. Based on the same, the respondent by his proceedings in Proc.No.5585/A-14/ICTC/TANSACS/2008 dated 08.06.2009 dis-continued the petitioner from service. Challenging the same, the petitioner has come forward with the present writ petition.
6.It is mainly contended by the petitioner that the petitioner is a regular employee of the respondent society and his salary was also paid by the respondent society. It is further submitted that before passing the order of termination, no charge memorandum was issued, no enquiry was held into the charges and no opportunity was given to the petitioner and thus, there is violation of principles of natural justice. Therefore, according to the petitioner, the impugned order is liable to be set aside.
7.In the counter filed by the respondent, a preliminary objection has been raised in respect of the maintainability of the writ petition. According to the respondent, since the respondent is a society registered under the Registration of Societies Act, 1975; since the same does not draw any financial assistance from the Government and since it is neither a state nor a state instrumentality in terms of
Article 12 of the Constitution of India, the writ petition is not maintainable.
8.But it is contended by the petitioner that the State Government has got pervasive control over the respondent society and therefore, the writ petition is maintainable. The learned counsel has produced two Government Orders in G.O.Ms.No.321 Health and Family Welfare (EAP1/2) Department dated 29.09.2008 and G.O.Ms.No.132 Health and Family Welfare (EAP1/2) Department dated 27.04.2009 to establish that the Government has got deep pervasive control over the affairs of the respondent society. The learned counsel has also brought to the notice of this Court that the society is administered by an Executive Committee which consists of an I.A.S., officer who is the Project Director appointed by the Government and several other Government officials. Thus, every function of the society is controlled by the Government through its officials and therefore, the respondent is a state instrumentality amenable to the writ jurisdiction of this Court, it is contended.
9.Before going into the facts of the case, it has become necessary for this Court to analyse the law on the subject relating to the maintainability of the writ petition. Ofcourse, it has been well settled in a catina of decisions of the Honble Supreme Court as well as this Court that the societies, in general, governed by a State, or, central statute are amenable to writ jurisdiction as the same cannot be termed either as state or as state instrumentalities in terms of
Article 12 of the Constitution of India.
10.But, the Honble Supreme Court in Ajay Hasia v. Khalid, (1981 (1) SCC 722)'s case has formulated certain tests to find whether a society governed by the Societies Registration Act can be brought within the purview of the writ jurisdiction of the High Court. One of the tests is whether the Government has got pervasive control over the affairs of the society. If the answer is affirmative, according to the Honble Supreme Court, the society is amenable to writ jurisdiction. Applying the said tests to the facts of the present case, now we have to see whether the Government of Tamil Nadu has got pervasive control over the respondent society.
11.As rightly pointed out by the learned counsel for the petitioner, the respondent society is headed by an officer in the cadre of Indian Administrative Service appointed by the Government of Tamil Nadu. The members of the committee headed by an I.A.S., officer, are mostly the officials drawn from the Government. Only some are Non Governmental Organisations (NGOs). All the decisions, more particularly, the policy decisions are taken by the Committee only with the approval of the Government about which, there can be no dispute. Apart from that, the society has got his own service Rules in respect of its employees. The said service rules was approved by the Government in G.O.Ms.No.321 Health and Family Welfare (EAP1/2) Department dated 29.09.2008 and G.O.Ms.No.132 Health and Family Welfare (EAP1/2) Department dated 27.04.2009. The said service Rules was also amended. If the society has got no pervasive control of the Government, there would have been no need for the society to get the service rules approved by the Government. The very fact that the service rules has been approved by the Government and the very fact that most of the officials who are managing the affairs of the society are Government Officials, there can be no difficulty in holding that the Government has got pervasive control over the respondent.
12.It is strenuously contended by the learned counsel for the respondent that the respondent society is not funded by the Government and the same is funded only by an international organisation. It is further stated that if once said funding is stopped then the society would be wound up. Therefore, according to the learned counsel for the respondent, the respondent society is not amenable to writ jurisdiction. I find no merit in the said contention.
13.In Ajay Hasias case (cited supra), ofcourse, the Honble Supreme Court has held that one of the tests to find whether a society is amenable to the writ jurisdiction or not depends upon the Government providing major funds to the society. If the society draws financial assistance from the Government, according to the tests propounded by the Honble Supreme Court, in the said judgement, it goes without saying that the said society is amenable to writ jurisdiction. But it is not always necessary to bring the society within the ambit of
Article 12 of the Constitution of India that the society should be funded by the Government. Even private bodies which are doing public functions are amenable to writ jurisdiction. It is the well settled position of law. As per one of the tests in Ajay Hasias case, in the case on hand, on facts, I am able to find that the respondent society is controlled by all means by the Government and hence, I have to necessarily hold that it falls within
Article 12 of the Constitution of India so as to become amenable to
Article 226 of the Constitution of India.
14.In K.Marappan v. The Deputy Registrar of Co-operative Societies Namakkal Circle, Namakkal and another, (2006 (4)) CTC: 689) while dealing with a society governed by the Tamil Nadu Co-operative Societies Act, a Larger Bench of this Court has referred to the law laid down in Ajay Hasias case and as a matter of fact, in the said case, the Larger Bench has gone to the extent of saying that even in respect of a co-operative society, in general, though it would not be brought under the purview of the writ jurisdiction of the High Court, in the event of allegations of violation of statutory Rules, the society shall be made amenable to writ jurisdiction.
15.Subsequently, in Ananda Sayanam vs The Joint Registrar of Co-opertaive Society (2007(5) CTC:1) a Full Bench of this Court has gone to the extent of clarifying that in the event of violation of fundamental a right of an individual on the part of the society, though the society cannot be otherwise brought under the purview of
Article 12 of the Constitution of India, still the said society is amenable to writ jurisdiction in such circumstances.
16.The learned counsel for the respondent would rely on a judgement of this Court in C.R.Mugundan and others v. Director General (Member Secretary), Indian Council of Medical Research, New Delhi and others (CDJ 1996 MHC 451) wherein, Honble Justice A.R.Lakshmanan (as he then was), has extensively gone into a similar question and after having considered that the society in question was administered by an officer drawn from the Government and by a committee consisting of many of the officers of the Government, ultimately held that the said society is amenable to writ jurisdiction.
17.Similar view has been taken by Honble Justice P.Sathasivam (as he then was) in another judgement in Dr.E.Johnson v. Salim Ali Centre for Mrnithology and Natural History, Coimbatore (2002 (3) M.L.J 441). In view of the well settled position of law as propounded in all the above judgements, I have no hesitation to hold that since on facts, I am convinced that the Government of Tamil Nadu has got pervasive control over the respondent society, it is amenable to writ jurisdiction.
18.The learned counsel for the respondent would further rely on a judgement of the Honble Supreme Court in State of Assam v. Barak Upatyaka d.u karmachari sanstha (2009 (5) SCC 694) wherein, it has been held that in respect of employees of Co-operative societies for claiming wage arrears, the remedy available for such employees is only to approach the Labour Court and not to file a writ petition under
Article 226 of the Constitution of India. In my considered opinion, the said judgement has got no relevance to the facts involved in the present case. That was a case where, admittedly, the society could not be brought under the ambit of
Article 12 of the Constitution of India and that is the reason why the Honble Supreme Court was to hold that the remedy available for the employees was to approach only the Labour Court. But in the case on hand, as I have already concluded, in view of the pervasive control of the Government over the respondent society, the same is to be necessarily brought within the writ jurisdiction of this Court.
19.The learned counsel for the respondent would rely on yet another judgment in Haryana Rajya Sainik Board cum Defence & Security Relief Fund v. Mohan Lal (2008 (10) SCC 133) wherein, the Honble Supreme Court has held that the said society is not amenable to writ jurisdiction. Here again, the facts are distinguishable. The question whether the said society was amenable to writ jurisdiction or not was not raised in the said case. That was a case where as against the Labour Court award, a writ petition was filed and finally it was taken up before the Honble Court by way of Civil Appeal. Therefore, the said judgement also does not help the respondent to advance his case. For the foregoing reasons, I reject the contention of the respondent that the writ petition is not maintainable.
20.Now, coming back to the facts of the present case, it is contended by the learned counsel for the respondent that the petitioner was not at all appointed by the respondent but he was appointed only by one Project Director of South India Aids Action Programme. He relies on the appointment order dated dated 09.08.1997 issued by Ms.Shyamala, Project Director. But the learned counsel for the respondent would fairly concede that subsequently, when the Non Governmental Organisation failed to pay salary to the petitioner, the salary was paid by the respondent society continuously to the petitioner. A perusal of the records would go to show that the petitioner was transferred by the respondent on two occasions; the show cause notice was issued by the respondent; enquiry was held by a Team of Officials nominated by the respondent and the order of termination was also issued by the respondent. If I have to accept the argument of the learned counsel for the respondent, that the petitioner was not an employee of the respondent society, then I have to necessarily get explanation from the learned counsel for the respondent as to how all these proceedings were initiated by the respondent as against the petitioner. The very fact that the above proceedings, like transfer, show cause notice, enquiry and termination order, were issued by the respondent would go to show that the petitioner was an employee of the respondent society only. If the petitioner was not an employee of the respondent, there would not have been any occasion for the respondent to terminate the petitioner from service.
21.The main contention of the petitioner is that before issuing the termination order, no charge memorandum was issued and no opportunity was given to him. I find every force in the said argument. Admittedly, there was no charge memorandum issued, no enquiry was held and no opportunity whatsoever was given to the petitioner to defend the charges. Thus, there is gross violation of principles of natural justice. It has been well settled by the Honble Supreme Court (vide 1991 Supp (1) SCC :600) that the principles of natural justice forms part of the fundamental right guaranteed under the Constitution of India more particularly under
Article 14 of the Constitution of India. When there is violation, certainly, it is for this Court to interfere and to extend its arm to the aggrieved under
Article 226 of the Constitution of India.
20.In view of all the above, the writ petition is allowed and the impugned order is set aside. However, liberty is given to the respondent to initiate appropriate disciplinary proceeding and then pass final order after affording sufficient opportunity to the petitioner. No costs. Consequently, connected miscellaneous petition is closed.
jbm To The Project Director/ Member Secretary, Tamil Nadu State Aids Control Society, Egmore, Chennai 600 008