Punjab-Haryana High Court
Reena Panta vs Union Of India And Others on 11 September, 2023
Neutral Citation No:=2023:PHHC:118251
CWP-6115-2019 (O&M) -1- 2023:PHHC:118251
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
113+231 CWP-6115-2019 (O&M)
Date of Decision : 11.09.2023
Reena Panta ......... Petitioner
Versus
Union of India and others ......... Respondents
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present : Mr.Onkar Singh, Advocate
for the petitioner.
Ms. Anita Balyan, Advocate
for respondent No.1-UOI.
Mr.A.D.S. Jattana, Advocate
for respondents No.2 and 3.
****
JAGMOHAN BANSAL, J. (Oral)
1. The petitioner through instant petition under Articles 226/227
of Constitution of India is seeking setting aside of order dated 27.02.2019
(Annexure P-18) whereby her services have been terminated.
2. Counsel for the respondent raised preliminary objection of
maintainability. He submits that respondent No.2 is a society registered
under Society Registration Act, 1860. The respondent No.2 does not fall
within definition of State or its Instrumentality as contemplated under
Article 12 of Constitution of India. The respondent-Society is neither
getting financial aid from the State nor directly or indirectly controlled or
managed by the Government. A Division Bench of this Court in Rajni
Jaiswal vs. School Managing Committee, Army School, Ferozepur Cantt
and another, 2007 SCC Online P&H 1472 and Andhra Pradesh High
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Court in Shaheeda Begum vs. Principal Army School Secunderaband and
another, 2005 SCC OnLine AP 706 have held that Army Public School
run by Army Welfare Society are not instrumentality of State in terms of
Article 12 of Constitution of India, thus, writ petition is not maintainable.
He further relies upon a three-Judge Bench of Hon'ble Supreme Court in
Executive Committee of Vaish Degree College, Shamli and others vs.
Lakshmi Narain and others, (1976)2 SCC 58.
3. Learned counsel for the petitioner submits that respondent is
discharging public function i.e. imparting education, thus, amenable to writ
jurisdiction of this Court. Though, the respondent is neither getting
financial aid from the State nor controlled/managed by State still it is
amenable to writ jurisdiction. In support of his contention, he relies upon
judgment of Hon'ble Supreme Court in Ramesh Ahluwalia vs. State of
Punjab and others, 2012 (12) SCC 331, Madras High Court in Mrs.
Revathi vs. Central Board of Secondary Education and others, Writ
Petition No.1422 of 2022, decided on 18.07.2023, this High Court in
Surinder Singh and others vs. Union of India and others, 2016 SCC
OnLine P&H 14737 and Delhi High Court in Army Welfare Education
Society and anr. vs. Manju Nautiyal and anr., 2015 SCC OnLine Del
13072
4. I have heard the learned counsel for the parties and perused the
record.
5. A Division Bench of this Court in Rajni Jaiswal's case
(supra) noticing judgment of a Division Bench of Jammu and Kashmir
High Court in Asha Khosa vs. Chairman Army Public School in W.P.
(Service) No.1415 of 1996, decided on 17.02.1997 has held that writ
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petition is not maintainable against Army Public School. The relevant
extracts of the order read as :
3. In support of the aforementioned contention,
learned counsel for the respondent has cited a Division
Bench judgment of Jammu and Kashmir High Court in
the case of Asha Khosa v. Chairman Army Public
School in W.P. (Service) No. 1415 of 1996 decided on
17.2.1997. The issue has been decided that the Army
Welfare Education Society running the Army School is
not amenable to writ jurisdiction under Article 226 of
the Constitution. Against the aforementioned view of the
Division Bench of Jammu and Kashmir High Court,
Special Leave Petition No. 6482(c) of 1997 was filed
and the same has been dismissed by Hon'ble the
Supreme Court vide order dated 31.3.1997 (R-2). The
Division Bench of this Court has also followed the
aforementioned view in the case of Upma Kalia v. Army
Public School, Jalandhar, (CWP No. 15202 of 2002)
decided on 26.8.2003 and in the case of Vinod Kumar v.
Ministry of Defence, (CWP No. 17615 of 2003) decided
on 18.11.2004.
4. In view of the above, we dismiss the writ petition
on account of non-maintainability. However, the
petitioner shall be at liberty to avail of any other remedy
in accordance with law, for the same cause of action, if
so advised.
5. Petition dismissed
6. A three-Judge Bench of Hon'ble Supreme Court in Lakshmi
Narain's case (supra) has drawn distinction between an entity created by
statute and an entity governed by provisions of the statute. The Court has
held that a society constituted under Society Registration Act, 1860 or a
company incorporated under the Companies Act, 1956 cannot be called as a
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statutory body. The relevant extracts of the judgment read as :
10. We would first deal with the important question,
which has been the sheet-anchor of the arguments of the
learned Counsel for the respondent as also the main
basis of the judgment of the Full Bench of the Allahabad
High Court, as to whether or not the appellant Executive
Committee can be said to be a statutory body in the
circumstances of the present case. It seems to us that
before an institution can be a statutory body it must be
created by or under the statute and owe its existence to
a statute. This must be the primary thing which has got
to be established. Here a distinction must be made
between an institution which is not created by or under
a statute but is governed by certain statutory provisions
for the proper maintenance and administration of the
institution. There have been a number of institutions
which though not created by or under any statute have
adopted certain statutory provisions, but that by itself is
not, in our opinion, sufficient to clothe the institution
with a statutory character. In Sukhdev Singh v.
Bhagatram Sardar Singh Raghuvanshi [(1975) 1 SCC
421 : 1975 SCC (L&S) 101 : AIR 1975 SC 1331, 1339]
this Court clearly pointed out as to what constitutes a
statutory body. In this connection my Lord A.N. Ray,
C.J., observed as follows : [SCC p. 435 : SCC (L&S) p.
115, para 25]
"A company incorporated under the
Companies Act is not created by the Companies
Act but comes into existence in accordance with
the provisions of the Act. It is not a statutory body
because it is not created by the statute. It is a
body created in accordance with the provisions of
the statute."
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It is, therefore, clear that there is a well marked
distinction between a body which is created by the
statute and a body which after having come into
existence is governed in accordance with the provisions
of the statute. In other words the position seems to be
that the institution concerned must owe its very
existence to a statute which would be the fountainhead
of its powers. The question in such cases to be asked is,
if there is no statute would the institution have any legal
existence. If the answer is in the negative, then
undoubtedly it is a statutory body, but if the institution
has a separate existence of its own without any
reference to the statute concerned but is merely
governed by the statutory provisions it cannot be said to
be a statutory body. The High Court, in our opinion was
in error in holding that merely because the Executive
Committee followed certain statutory provisions of the
University Act or the statutes made thereunder it must
be deemed to be a statutory body. In fact the Full Bench
of the High Court relied on three circumstances in order
to hold that the Executive Committee was a statutory
body viz. (i) that it was affiliated to the Agra University
which was established by the statute; (ii) that there were
certain mandatory provisions in the Agra University Act
which were binding on the Executive Committee; and
(iii) that the Executive Committee was governed by the
statutes framed by the Agra University. In our opinion,
none of these factors would be sufficient to alter the
character and nature of the Executive Committee and
convert it into a full-fledged statutory body. To begin
with the Executive Committee had an independent status
having been registered under the Societies Registration
Act, 1860 and was a self-governed or an autonomous
body. It was affiliated to the Agra University merely for
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the sake of convenience and mainly for the purpose that
the courses of studies prevalent in the college may be
recognised by the university.
X X X X
14. Thus in view of the decisions of this Court
regarding the circumstances under which the institution
can be treated as a statutory body we are unable to
agree with the view taken by the Allahabad High Court
that the Executive Committee was a statutory body
merely because it was affiliated to the university or was
regulated by the provisions of the University Act or the
statutes made thereunder. We accordingly hold that the
decision of the Full Bench of the Allahabad High Court
on this point is legally erroneous and must be overruled.
X X X X
16. To the same effect is the decision of this Court in
Bank of Baroda v. Jewan Lal Mehrotra [(1970) 3 SCC
677 : (1970) 2 LLJ 54, 55] where this Court observed as
follows : [SCC p. 678, para 3]
"The law as settled by this Court is that no
declaration to enforce a contract of personal
service will be normally granted. The well
recognised exceptions to this rule are (1) where a
public servant has been dismissed from service in
contravention of Article 311; (2) where
reinstatement is sought of a dismissed worker
under the industrial law by labour or Industrial
Tribunals; (3) where a statutory body has acted in
breach of a mandatory obligation imposed by
statute;"
7. A two-Judge Bench of Hon'ble Supreme Court in St. Mary's
Education Society and another vs. Rajendra Prasad Bhargava and
others, (2023) 4 SCC 498, while noticing its plethora of judgments has held
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that writ petition under Article 226 of Constitution of India is maintainable
against a private person or body, however, writ is not maintainable if action
of the private body does not involve public law. Issues arising out of a
contract between an employee and private body like termination, promotion
or remuneration do not involve public law, thus, writ against order of
termination is not maintainable. The Court has discussed at length question
of public and private law, maintainability of writ against private body. The
relevant extracts of the judgment read as :
2. In the present appeal, two pivotal issues fall for
consideration of this Court:
2.1.(a) Whether a writ petition under Article 226 of the
Constitution of India is maintainable against a private
unaided minority institution?
2.2.(b) Whether a service dispute in the private realm
involving a private educational institution and its
employee can be adjudicated in a writ petition filed
under Article 226 of the Constitution?
3. In other words, even if a body performing public
duty is amenable to writ jurisdiction, are all its
decisions subject to judicial review or only those
decisions which have public element therein can be
judicially reviewed under the writ jurisdiction?
X X X X
35. Thus, where a teacher or non-teaching staff
challenges the action of Committee of Management that
it has violated the terms of contract or the rules of the
Affiliation Bye-laws, the appropriate remedy of such
teacher or employee is to approach CBSE or to take
such other legal remedy available under law. It is open
to CBSE to take appropriate action against the
Committee of Management of the institution for
withdrawal of recognition in case it finds that the
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Committee of Management has not performed its duties
in accordance with the Affiliation Bye-laws.
36. It needs no elaboration to state that a school
affiliated to CBSE which is unaided is not a State within
Article 12 of the Constitution of India [see Satimbla
Sharma v. St Paul's Senior Secondary School [Satimbla
Sharma v. St Paul's Senior Secondary School, (2011) 13
SCC 760 : (2012) 2 SCC (L&S) 75] ]. Nevertheless the
school discharges a public duty of imparting education
which is a fundamental right of the citizen [see K.
Krishnamacharyulu v. Sri Venkateswara Hindu College
of Engg. [K. Krishnamacharyulu v. Sri Venkateswara
Hindu College of Engg., (1997) 3 SCC 571 : 1997 SCC
(L&S) 841] ]. The school affiliated to CBSE is therefore
an "authority" amenable to the jurisdiction under
Article 226 of the Constitution of India[see Binny Ltd. v.
V. Sadasivan [Binny Ltd. v. V. Sadasivan, (2005) 6 SCC
657 : 2005 SCC (L&S) 881] ]. However, a judicial
review of the action challenged by a party can be had
by resort to the writ jurisdiction only if there is a public
law element and not to enforce a contract of personal
service. A contract of personal service includes all
matters relating to the service of the employee --
confirmation, suspension, transfer, termination, etc.
[see Apollo Tyres Ltd. v. C.P. Sebastian [Apollo Tyres
Ltd. v. C.P. Sebastian, (2009) 14 SCC 360 : (2009) 5
SCC (Civ) 358 : (2010) 1 SCC (L&S) 359] ].
37. This Court in K.K. Saksena v. International
Commission on Irrigation & Drainage [K.K. Saksena v.
International Commission on Irrigation & Drainage,
(2015) 4 SCC 670 : (2015) 2 SCC (Civ) 654 : (2015) 2
SCC (L&S) 119] , after an exhaustive review of its
earlier decisions on the subject, held as follows : (SCC
pp. 692 & 696, paras 43 & 52)
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"43. What follows from a minute and careful
reading of the aforesaid judgments of this Court is
that if a person or authority is "State" within the
meaning of Article 12 of the Constitution,
admittedly a writ petition under Article 226 would
lie against such a person or body. However, we
may add that even in such cases writ would not lie
to enforce private law rights. There are a catena
of judgments on this aspect and it is not necessary
to refer to those judgments as that is the basic
principle of judicial review of an action under the
administrative law. The reason is obvious. A
private law is that part of a legal system which is
a part of common law that involves relationships
between individuals, such as law of contract or
torts. Therefore, even if writ petition would be
maintainable against an authority, which is
"State" under Article 12 of the Constitution,
before issuing any writ, particularly writ of
mandamus, the Court has to satisfy that action of
such an authority, which is challenged, is in the
domain of public law as distinguished from
private law.
***
52. It is trite that contract of personal service
cannot be enforced. There are three exceptions to
this rule, namely:
(i) when the employee is a public servant
working under the Union of India or State;
(ii) when such an employee is employed by
an authority/body which is a State within
the meaning of Article 12 of the
Constitution of India; and
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(iii) when such an employee is "workmen"
within the meaning of Section 2(s) of the
Industrial Disputes Act, 1947 and raises a
dispute regarding his termination by
invoking the machinery under the said Act.
In the first two cases, the employment ceases to
have private law character and "status" to such
an employment is attached. In the third category
of cases, it is the Industrial Disputes Act which
confers jurisdiction on the Labour
Court/Industrial Tribunal to grant reinstatement
in case termination is found to be illegal."
38. The following decisions have been adverted to in
K.K. Saksena [K.K. Saksena v. International
Commission on Irrigation & Drainage, (2015) 4 SCC
670 : (2015) 2 SCC (Civ) 654 : (2015) 2 SCC (L&S)
119] :
1. Andi Mukta Sadguru Shree Muktajee Vandas
Swami Suvarna Jayanti Mahotsav Smarak Trust v.
V.R. Rudani [Andi Mukta Sadguru Shree
Muktajee Vandas Swami Suvarna Jayanti
Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2
SCC 691 : AIR 1989 SC 1607] ,
2. G. Bassi Reddy v. International Crops Research
Institute [G. Bassi Reddy v. International Crops
Research Institute, (2003) 4 SCC 225] ,
3. Praga Tools Corpn. v. C.A. Imanual [Praga
Tools Corpn. v. C.A. Imanual, (1969) 1 SCC
585] ,
4. Federal Bank Ltd. v. Sagar Thomas [Federal
Bank Ltd. v. Sagar Thomas, (2003) 10 SCC 733] .
39. This Court in Janet Jeyapaul v. SRM University
[Janet Jeyapaul v. SRM University, (2015) 16 SCC 530 :
(2015) 13 Scale 622 : 8 SCEC 68] , held that when a
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private body exercises its public functions even if it is
not a State, the aggrieved person has a remedy, not only
under the ordinary law, but also by way of a writ
petition under Article 226 of the Constitution. In Binny
case [Binny Ltd. v. V. Sadasivan, (2005) 6 SCC 657 :
2005 SCC (L&S) 881] , this Court held that Article 226
of the Constitution 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 the
discharge of public function.
40. Para 11 of the judgment in Binny [Binny Ltd. v. V.
Sadasivan, (2005) 6 SCC 657 : 2005 SCC (L&S) 881] is
reproduced below : (SCC pp. 665-66)
"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. The role of the State expanded
enormously and attempts have been made to
create various agencies to perform the
governmental functions. Several corporations and
companies have also been formed by the
Government to run industries and to carry on
trading activities. These have come to be known
as public sector undertakings. However, in the
interpretation given to Article 12 of the
Constitution, this Court took the view that many of
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these companies and corporations could come
within the sweep of Article 12 of the
Constitution. At the same time, there are private
bodies also which may be discharging public
functions. It is difficult to draw a line between
public functions and private functions when it is
being discharged by a purely private authority. 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."
(emphasis supplied)
X X X X
54. Thus, the aforesaid order passed by this Court
makes it very clear that in a case of retirement and in
case of termination, no public law element is involved.
This Court has held that a writ under Article 226 of the
Constitution against a private educational institution
shall be maintainable only if a public law element is
involved and if there is no public law element is
involved, no writ lies.
X X X X
66. Merely because a writ petition can be maintained
against the private individuals discharging the public
duties and/or public functions, the same should not be
entertained if the enforcement is sought to be secured
under the realm of a private law. It would not be safe to
say that the moment the private institution is amenable
to writ jurisdiction then every dispute concerning the
said private institution is amenable to writ jurisdiction.
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It largely depends upon the nature of the dispute and
the enforcement of the right by an individual against
such institution. The right which purely originates
from a private law cannot be enforced taking aid of the
writ jurisdiction irrespective of the fact that such
institution is discharging the public duties and/or
public functions. The scope of the mandamus is
basically limited to an enforcement of the public duty
and, therefore, it is an ardent duty of the court to find
out whether the nature of the duty comes within the
peripheral of the public duty. There must be a public
law element in any action.
X X X X
75. We may sum up our final conclusions as under:
75.1. An application under Article 226 of the
Constitution is maintainable against a person or a body
discharging public duties or public functions. The public
duty cast may be either statutory or otherwise and
where it is otherwise, the body or the person must be
shown to owe that duty or obligation to the public
involving the public law element. Similarly, for
ascertaining the discharge of public function, it must be
established that the body or the person was seeking to
achieve the same for the collective benefit of the public
or a section of it and the authority to do so must be
accepted by the public.
75.2. Even if it be assumed that an educational
institution is imparting public duty, the act complained
of must have a direct nexus with the discharge of public
duty. It is indisputably a public law action which confers
a right upon the aggrieved to invoke the 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 a writ petition under Article
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226. Wherever Courts have intervened in their exercise
of jurisdiction under Article 226, either the service
conditions were regulated by the 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.
75.3. 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 the powers of the
High Court conferred by Article 226 in respect of matter
relating to service where they are not governed or
controlled by the 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, the 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.
75.4. Even if it be perceived that imparting
education by private unaided school is a public duty
within the expanded expression of the term, an employee
of a non-teaching staff engaged by the school for the
purpose of its administration or internal management is
only an agency created by it. It is immaterial whether
"A" or "B" is employed by school to discharge that
duty. In any case, the terms of employment of contract
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between a school and non-teaching staff cannot and
should not be construed to be an inseparable part of the
obligation to impart education. This is particularly in
respect to the disciplinary proceedings that may be
initiated against a particular employee. It is only where
the removal of an employee of non-teaching staff is
regulated by some statutory provisions, its violation by
the employer in contravention of law may be interfered
with by the Court. But such interference will be on the
ground of breach of law and not on the basis of
interference in discharge of public duty.
75.5. From the pleadings in the original writ petition, it
is apparent that no element of any public law is agitated
or otherwise made out. In other words, the action
challenged has no public element and writ of mandamus
cannot be issued as the action was essentially of a
private character.
8. In the present case, concededly the respondent society has been
created under Society Registration Act. The respondent body is neither
directly nor indirectly controlled by Government. The society is free to
make rules with respect to appointment, tenure and termination of its
employees. The society is not bound to adopt rules and regulations made
by State Government or Central Government with respect to its employees.
The respondent-Society is not funded by State. The respondent-society is
imparting education which is a public function, thus, it is amenable to writ
jurisdiction of this Court. The petitioner was appointed on the basis of a
contract executed between the parties. The petitioner is seeking setting
aside of her termination from the post of Principal.
9. The petitioner is assailing order dated 27.02.2019 whereby
petitioner has been terminated during probation period. Law enunciated by
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Hon'ble Supreme Court in St. Mary's Education Society's case (supra) is
squarely applicable to the present case and as per said judgment, the writ
petition is not maintainable.
10. In the wake of above discussion and findings, the present
petition stands dismissed for the want of maintainability. The petitioner is
at liberty to avail remedy as permissible by law.
11. Pending applications, if any, stand disposed of.
( JAGMOHAN BANSAL )
11.09.2023 JUDGE
anju
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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