Vikrant Halkandar vs The Principal Pravin Gandhi ...
2021 Latest Caselaw 232 Bom

      This Order is modified/corrected by Speaking to Minutes Order dated 12/01/2021


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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

              ORDINARY ORIGINAL CIVIL JURISDICTION

             WRIT PETITION (LODGING) NO. 6736 OF 2020

Vikrant Halkandar                                      )
Age- 30 Adult, Indian Inhabitant                       )
505, Nav Audumber Society, near Dagadi                 )
Shala opposite Vijay Tower, Charai,                    )
Thane - 400 601.                                       )          ... Petitioner

  Versus
1. The Principal,                                      )
Pravin Gandhi College of Law                           )
Mithibai College Campus, 8th Floor,                    )
Baktivedanta Swami Marg,                               )
Vile Parle (West),                                     )
Mumbai - 400 056                                       )

2. Chairman/President                                  )
Shri Vile Parle Kelavani Mandal,                       )
Mithibai College Campus, 8th Floor,                    )
Baktivedanta Swami Marg,                               )
Vile Parle (West),                                     )
Mumbai - 400 056                                       )

3. The Registrar,                                      )
University of Mumbai,                                  )
M.G. Road, Fort,                                       )
Mumbai - 400 032.                                      )           ... Respondents

                ---

Mr. Rajesh P. Behere a/w Mr. Rahul R. Singh and Ms. Pranali Raut for
the Petitioner.
Mr. Arshad Shaikh a/w Ms. Manorama Mohanty, Mr. A. P. Singh i/by
M/s. S. K. Srivastava and Co. for the Respondent Nos. 1 and 2.
             ---




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       This Order is modified/corrected by Speaking to Minutes Order dated 12/01/2021


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                                     CORAM: R. D. DHANUKA AND
                                            MADHAV J. JAMDAR, JJ.

DATE : 6th JANUARY, 2021.

(THROUGH VIDEO CONFERENCE)

Judgment (Per R.D. Dhanuka, J.) :-

. By this petition filed under Article 226 of the Constitution of

India, the petitioner has impugned the Show Cause Notice dated 19 th

October, 2020 issued by the respondent no. 1. By the said show cause

notice, the petitioner was called upon to show cause as to why

disciplinary action shall not be initiated against the petitioner in respect of

various alleged acts on the part of the petitioner. The petitioner has also

prayed for an order and direction against the respondent nos. 1 and 2 to

pay full back wages in compliance with the order dated 28 th March, 2019

passed by the Mumbai University and School Tribunal along with cost.

2. Matter was adjourned on the last date to enable the learned

counsel for the respondents to take instruction whether respondents

would pay the back wages on its own or requires an order to be passed by

this Court. Today, the learned counsel for the respondent nos.1 and 2

instead of making a statement, seeks to challenge the writ petition on the

ground of maintainability.

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3. Mr. Shaikh, learned counsel for the respondent nos.1 & 2 raised an

issue of maintainability of this Writ petition on the ground that the

respondent no.1 is a private institution and is not amenable to writ

jurisdiction under Article 226 of the Constitution of India. He submits

that the petitioner even otherwise is not entitled to challenge the show

cause notice in this writ petition.

4. In support of his submission, learned counsel placed reliance

on the following Judgments :-

(i) Judgment of Full Bench of this Court in the case of D.S. Veer

Ranji Vs. Ciba Speciality (I) Ltd. & Ors., 2002 (1) Bom.C.R. 29;

(ii) Judgment of Supreme Court in the case of M/s.Zee Telefilms Ltd.

& Anr. Vs. Union of India & Ors., 2005 AIR (SC) 2677;

(iii) Judgment of Supreme Court in the case of Trigun Chand Thakur

Vs. State of Bihar & Ors., 2019 DGLS (SC) 935;

(iv) Judgment of Patna High Court in the case of Chandra Nath

Thakur & Ors., 1999 (1) B.L. Jud. 740;

(v) Judgment of Patna High Court in the case of Trigun Chand

Thakur Vs. State of Bihar & Ors., 2008 (2) PLJR 718.

5. In view of issue of maintainability raised by the learned

counsel for the respondent nos.1 and 2, we shall first deal with the said

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objection. It is not in dispute that Pravin Gandhi College of Law is

affiliated to University of Mumbai and is run by Shri Vile Parle Kelavani

Mandal.

6. It is also not in dispute that the said institution running the

said college, Pravin Gandhi College of Law had appointed the petitioner

as Assistant Professor in Political Science in the said college. In clause

9 of the order dated 2nd January 2016, it was clearly provided that

services of the petitioner will be governed by the provisions of the

Maharashtra Universities Act 1994 and the Statutes, Ordinances,

Regulations and Rules of the University of Mumbai for the time being

in force and the rules of Shri Vile Parle Kelavani Mandal not consistent

with the Statutes, Ordinances, Regulations and Rules of the University.

The petitioner had accepted the terms and conditions of the said

appointment. In view of the dispute having been arisen between the

petitioner and the respondent nos.1 and 2 arising out of the said

employment, the petitioner had exercised his remedy by filing an appeal

bearing No.26 of 2018 under Section 59 of the Maharashtra

Universities Act, 1994.

7. Section 81 of the Maharashtra Universities Act, 1994

prescribed the condition for affiliation and recognition of College or

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Institution. The Management applying for affiliation or recognition and

management whose college or institution has been granted affiliation or

recognition has to file an undertaking in the manner prescribed therein.

Clause (f) of Section 81 provides for strength and qualifications of

teaching and non-teaching staff of the affiliated colleges and recognised

institutions and the affiliated colleges as prescribed by the university and

which shall be sufficient to make due provision for courses of study,

teaching or training or research, efficiently. Clause (h) of Section 81

provides that the undertaking shall also record that directions and orders

issued by the Chancellor, Vice-Chancellor and other officers of the

university in exercise of the powers conferred on them under the

provisions of the Act, Statutes, Ordinances and Regulations shall be

complied with. Clause (i) of Section 81 provides that an undertaking

shall also be to the effect that there shall be no change or transfer of the

management without previous permission of the university. It is not the

case of the respondent nos.1 and 2 that they are not bound by any such

provisions of the Maharashtra Universities Act, 1994 and the undertaking

that is required to be filed under the aforesaid provisions.

8. The letter of appointment itself clearly indicates that

appointment of the petitioner admittedly was governed by the

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Maharashtra Universities Act, 1994 and also the Statutes, Ordinances,

Regulations and Rules of Shri Vile Parle Kelavani Mandal not

inconsistent with the Statutes, Ordinances, Regulations and Rules of the

University.

9. We have perused the judgments cited by the learned counsel

for the respondent nos.1 and 2. None of the aforesaid judgments are even

remotedly applicable to the facts of this case. Reliance placed by the

learned counsel for the respondent nos.1 and 2 on those judgments is

totally misplaced. In this case, the impugned show cause notice for

Disciplinary Action is issued by Pravin Gandhi College of Law

annexed at Exhibit 'F' to the petition run and managed by the

Management Committee and Trustees of Shri Vile Parle Kelavani

Mandal.

10. Supreme Court in the case of Marwari Balika Vidyalaya

Vs. Asha Srivastava & Ors., (2019) SCCOnline SC 408 considered the

issue whether writ petition was rightly entertained by the High Court

against private school or not. The Hon'ble Supreme Court after adverting

to its earlier judgment in the case of Ramesh Ahluwalia Vs. State of

Punjab & Ors., (2012) 12 SCC 331 held that the judgment of the learned

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Single Judge as also the Division Bench of the High Court cannot be

sustained on the proposition that the writ petition would not be

maintainable merely because the respondent institution is a purely

unaided private educational institution. It is further held in the said

judgment that Court has no hesitation to hold that the Writ Application is

maintainable. The Hon'ble Supreme Court has also considered the fact

that the institution was performing public functions i.e. providing

education to children in their institutions throughout India. Supreme

Court held that the Writ Application is maintainable in such a matter

even as against the private unaided educational institutions.

11. Supreme Court in the case of Ramesh Ahluwalia (Supra)

after adverting to various judgments has set aside the judgment of a

learned Single Judge as well as Division Bench of the High Court

holding that the writ petition would not maintainable merely because the

respondent institution is a purely unaided private educational institution.

In our view, the principles of law laid down by the Supreme Court in the

case of Ramesh Ahluwalia (supra) would squarely apply to the facts of

this case. We respectfully bound by the said judgment.

12. Supreme Court in the case of Rajbir Surajbhan Singh Vs.

Chairman, institute of Banking Personnel Selection, Mumbai, (2019)

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14 SCC 189 including in case of Andi Mukta Sadguru Shree Muktajee

Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust Vs. V.R.

Rudani, (1989) 2 SCC 691 and in the case of K.K. Saksena Vs.

International Commission on Irrigation & Drainage, (2015) 4 SCC

670 held that there is no manner of doubt that a Writ Petition under

Article 226 is maintainable even against a private body provided it

discharges public functions. It is not easy to define what a public function

or public duty is. It can reasonably be said that such functions as are

similar to or closely related to those performable by the State in its

sovereign capacity, are public functions.

13. In the case of Andi Mukta Sadguru Shree Muktajee

Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust (supra), it is

held by the Supreme Court that 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 the authority to the affected party. No

matter by what means the duty is imposed, if a positive obligation exists,

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mandamus cannot be denied.

14. In our view, various duties and obligations are cast on the

respondent nos.1 and 2 under the provisions of the Maharashtra

Universities Act, 1994 by which provision, the appointment of the

petitioner was also governed admittedly. The respondent nos.1 and 2 have

been imparting education which is part of public duty in compliance

with the obligation prescribed under the provisions of the Maharashtra

Universities Act, 1994. In our view, the principles of law laid down by

the Supreme Court in the cases of Rajbir Surajbhan Singh (supra),

Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti

Mahotsav Smarak Trust (supra) and K.K. Saksena Vs. International

Commission on Irrigation & Drainage (supra) would squarely apply to

the facts of this case. We are respectfully bound by the said judgments.

There is thus no merit in the submission of the learned counsel for the

respondent nos.1 and 2 that this writ petition is not maintainable. We

shall now decide the issues raised by the petitioner on merit and dealt

with by the learned counsel for the respondent nos.1 and 2.

15. In prayer clauses (a) & (b) of the writ petition, the petitioner

has prayed for writ of certiorari for quashing and setting aside Show

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Cause Notice dated 18th September 2020 issued by the respondent no.1.

In prayer clause (d) of the petition, the petitioner has prayed for an order

and direction against the respondent nos.1 and 2 to follow in true spirit

the order dated 20th March 2019 passed by the Mumbai University and

College Tribunal at Mumbai in Appeal No.26 of 2018 filed by the

petitioner and seeks payment of full back wages along with cost of

Rs.15,000/- as per order dated 20th March 2019.

16. It is contended by the learned counsel for the petitioner that

since the respondent nos.1 and 2 has not initiated the disciplinary action

against the petitioner permitted by the said order dated 20 th March 2019,

the respondent nos.1 and 2 cannot be allowed to proceed with the show

cause notice dated 19th October 2020.

17. Learned counsel for the respondent nos.1 and 2, on the other

hand, submits that his client has already applied for extension of time

to the said Tribunal for six months to conduct the said enquiry as per

order dated 20th March 2019. The respondent no.1 has already issued

show cause notice on 18th September 2020 for disciplinary action.

18. A perusal of the order dated 20 th March 2019 passed by the

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said Tribunal clearly indicates that if enquiry is not conducted and

completed against the petitioner within a period of one year, the petitioner

shall be entitled to back wages as per the rules forthwith after expiry of

the said period.

19. In our view, since the consequences is provided in the said

order for not conducting and completing the enquiry within one year by

providing for payment of back wages, there would be no bar against the

respondent nos.1 and 2 from conducting such enquiry even after expiry

of one year provided extension of time is granted by the said Tribunal

in respect of which the application filed by the respondent no.1 before the

Tribunal is already pending. We are thus not inclined to interfere with

the show cause notice issued by the respondent no.1.

20. The next question that arises for consideration of this

Court is whether in view of default committed by the respondent no.1

and 2 in not conducting and completing the enquiry within a period of

one year, the petitioner would become entitled for back wages as per

Rules and also cost of Rs.15,000/- as provided in the said order dated 20 th

March 2019 or not.

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21. It is not in dispute that the respondent nos.1 and 2 have not

impugned the said order dated 20th March 2019 providing for entitlement

of the petitioner for back wages as per Rules after expiry of period of one

year from the date of the said order for conducting and completing

enquiry against the petitioner. The respondent nos.1 and 2, in these

circumstances, cannot refuse to make payment of back wages as per

Rules and also the payment of cost of Rs.15,000/- which was even

otherwise payable by them to the petitioner within a period of two

months from the date of the said order.

22. Mr.Shaikh, learned counsel for the respondent nos.1 and 2

strenuously urged before this Court that since the application for

extension of time filed by the respondent no.1 for completing the enquiry

is still pending before the Tribunal, this Court shall not pass any order for

payment of back wages at this stage. Admittedly, the said order dated

20th March 2019 passed by the Tribunal is not impugned by the

respondent nos.1 and 2 till date. The said order dated 20 th March 2019

is thus clearly enforceable. The respondent nos.1 and 2 has also not

paid cost of Rs.15,000/- which payment has even otherwise nothing to

do with the pending application of the respondent no.1 for extension of

time to complete the enquiry against the petitioner. Both these amount

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shall be paid within two weeks from today.

23. Writ Petition is disposed of in aforesaid terms. There shall be no

order as to costs.

24. In so far as the application for extension of time filed by the

respondent no.1 before the Tribunal is concerned, we do not express

any observations on merit of the said application filed before the Tribunal

and the same shall be disposed of on its own merit.

25. It is made clear that the payment of back wages that would be

made by the respondent nos.1 and 2 to the petitioner would be subject to

further orders as may be passed by the respondent nos.1 and 2 after

conclusion of the enquiry on grant of extension of time, if any, by the

said Tribunal. Parties to act on this order duly authenticated by the

Sheristedar of this Court.

       MADHAV JAMDAR, J.                               R.D. DHANUKA, J.