Chittaranjan Mahato v. Anil Kumar Chakraborti — 1985 DIGILAW 56 (CAL)

JUDGMENT 1. THIS appeal arises out of a judgment of B. C. Ray J whereby the learned Judge allowed the writ petition filed by Dr. Anil Kumar Chakraborti, the principal of Jagannath Kishore College, purulia arid quashed the charge-sheets and the order of suspension. 2. ON December. 1, 1978, the respondent writ petitioner was appointed the principal of the Jagannath Kishore college, Purulia which is a Government sponsored College and affiliated to the university of Burdwan, on pay and allowances to be fixed by the Director of public Instruction, West Bengal. The governing Body of the College was reconstituted on December 27, 1978 and the respondent being the Principal was ex officio Secretary of the Governing body. By virtue of the Government order dated December 22,1964 issued toy the Deputy (Secretary Education Department, Government of West Bengal, the Principal of the Jagannath Kishore college is the Chief Administrative Officer and Drawing and Disbursing Officer of the College. The College being a Government sponsored College, it is governed by the terms and conditions as approved by the Government order dated October 31, 1956. Apart from the terms and conditions, the Government has also framed certain rules which will be referred to later. The case of the respondent was that in contravention of the rules of the Governing Body, some members of the Governing Body attempted to convene a requisition meeting of the Governing body of the College. The matter was referred to the Director of Public Instruction, Government of West Bengal by the respondent as the Principal of the College. Instead of giving any direction or making any clarification in respect of requisition meetings of the Governing Body of the College, the Director of Public Instruction called for an explanation from the respondent by his letter dated June 23, 1980. The requisition meetings convened on April 30, 1980 June 14, 1980 and September 6, 1980 could not be held as the notices for the said requisition meetings were illegal and not provided for in the' said Government order dated October 31, 1956 containing the rules for administration of the College.On December 24, 1980, the Director of Public Instruction requested the respondent to convene a meeting of the Governing Body of the College for discussing certain important matters relating to the College. It was further directed that the Government would depute an officer of the Education directorate who would be present at the meeting of the Governing Body as an observer. The respondent convened an ordinary meeting of the Governing body of the College on January 31. 1981 and an observer was sent by the Government to be present in the said meeting. Indeed, the observer participated in the deliberations of the meeting hold on January 31, 1981. In this meeting, matters which were not in the agenda were discussed and it was decided to hold a disciplinary proceeding against the respondent. The respondent was "also directed to be placed under suspension. A Committee was appointed to enquire into the charts mentioned in the resolution of the said meeting held on January St. 1981. It was also resolved in the paid meeting that a show-causn notice should be served upon the respondent mentioning the charges against him. Thereafter, a show-cause notice was served on the respondent pursuant to the said resolution. A second charge-sheet with different articles of charges was served upon the respondent with a forwarding letter dated April 28, 1981 of Shri C.R. Mahato and Shri M.M. Mondal, designated as Enquiring Authority, asking the respondent to appear in person before them on May 10, 1981 to- defend himself against the charges annexed to the said forwarding letter which, as stated before, are different from the earlier charges. 3. IT was, infer alia, contended by the respondent that the charges levelled against the respondent by the resolution of the meeting of the Governing Body dated January 31, 1981 were vitiated by bias and closed mind of the members of the Governing Body, and that the second charge-sheet containing different charges was also illegal, motivated and mala fide. 4. A Rule Nisi was issued on the writ petition. The appellants who are the members of the Governing Body of the college opposed the Rule Nisi. Besides denying the allegation of the respondent that the charges levelled against the respondent were vitiated by bias and closed mind, and that the same were motivated and mala fide, the appellants contended that the -writ petition was not maintainable against the Governing body of a sponsored college inasmuch as it was neither a statutory authority' nor an authority within the meaning of article 12 of the Constitution of India. The learned Judge relied upon his decision on the case of Kalnana Bishui vs. State of West Bengal and others. 85 C.W.N. 1069 where it was held that a writ application against an order of the governing Body of the College was maintainable as it purported to effect the petitioner's legal right conferred by the west Bengal College Teachers' (Security of Service) Act, 1975, oven though a government sponsored college is not a statutory body or an agency or instrumentality of the Government. The learned Judge took the view that as, admittedly, the terms and conditions of service of the respondent was governed by the West Bengal College Teachers (Security of Service) Act, 1975, the writ application was maintainable. On the merits of the case, the learned Judge held that it was clear and apparent, from the charge-sheet as contained in the resolution dated January 31, 1981 of the governing Body, which is the disciplinary authority, that the charge-sheet was framed with a closed mind and the [members of the Governing Body were clearly biased against the respondent. The learned Judge also held that there was no specific item in the agenda of the meeting of the Governing Body held on April 21, 1981 for framing fresh charges against the respondent. The learned Judge also found that the members of the Governing Body were biased against the respondent in framing the fresh charges against him in the said meeting held on April 2l', 1981 without any item in that regard in the agenda. Upon the aforesaid findings, the learned judge quashed the charge-sheets and the order of suspension of the respondents. The learned Judge, however, observed that the order appealed from would not in any was prevent the authorities concerned from proceeding with the disciplinary proceedings in accordance with law. Hence, this appeal. 5. LET us first of all consider whether jagannath Kishore College is an instrumentality or agency of the Government so that it can be said to be an authority, comprehended in the expression "other authorities" under Article 12 of the constitution. It has been urged on behalf oil the appellants that the College is not a State or an authority under the control of the Government of India within the meaning of Article 12 of the constitution, and, as such, the writ petition is not maintainable. In Ramana v. the International Airport Authority of india, AIR. It has been urged on behalf oil the appellants that the College is not a State or an authority under the control of the Government of India within the meaning of Article 12 of the constitution, and, as such, the writ petition is not maintainable. In Ramana v. the International Airport Authority of india, AIR. 1979 S.C. 1628, it has been observed by Bhagabati J. that the Corporation acting as the instrumentality or agency of Government, would obviously be subject to the same limitations in the field of constitutional and administrative law as Government itself, though, in the eye of law, they would be different and independent legal entity. The reason for the applicability of such limitations is that if the Government acting through its officers is subject to certain constitutional and public law limitation must follow,a for that government acting through the instrumentality of agency of corporations should equally be subject to the same limitation bhagabati J has also laid down the criteria and for characteristics that should be taken into consideration in deciding the question whether or not a statutory Corporation a Government company, a Co-operative society and other registered society or body is an authority within the meaning of Article 12 of the constitution. These criteria and/or characteristics as laid down by bhagabati has been extracted by krishna Iyer J in his judgment delivered on behalf of himself and 0. Chinnappa reddy J in som Prokash V. Union of India, AIR 1981 S. C. 212, as follows : "1. One thing is clear that if the entire share capital of the corporation is held by, Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. 2. Existence of "deep and pervasive State control may afford an indication that the Corporation is, a state agency or instrumentality. 3. It may also be a relevant factor whether the corporation enjoys monopoly status which is State conferred or State protected. 4. If the functions of the corporation are of public importance and, closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of government. 5. Specifically if a department at government is transferred to a corporation it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government. 6. 5. Specifically if a department at government is transferred to a corporation it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government. 6. THE above tests or criteria Which have been laid down in the case of International Airport Authority (supra)are quite sufficient for our purpose, and we do not think it necessary to refer to any other decision on the question. Jagannath Kishore" College was a private college affiliated to the University of burdwan. It is not disputed that the authorities of the College decided to hand over the same to the Government and, indeed, they handed over the College to the Government of West Bengal on or about December 1,1978. As a result, the Government declared the college as a sponsored College. The effect of such handing over of the College and/or declaration of the same as a sponsored college was that the College ass a whole vested in the Government. In other words, the Government took up the responsibility to run the College under its direct control and supervision. At this stage, it may be mentioned that it appears from the appointment letter of the respondent that he was appointed the Principal of the College on pay and allowances "to be fixed by the Director of Public, Instruction, West Bengal. It. has already been noticed that by virtue of the Government order dated December 22, 1964, the Principal of the College is the Chief Administrative Officer and also, the Drawing and Disbursing Officer of the College. The handing over of the college to the Government of West bengal was not under any statutory provision. The Government has been administering the College not also under any statutory provision. Some rules of management have been laid down by the Government for the administration and, management of the College. These rules can be changed at any moment. Under paragraph 8 of the terms and conditions of, the sponsored College, the governing Body will adopt rules of business of the Institution as approved by the Government. Paragraph 9 of such terms and conditions provides for the constitution of the Governing Body of a sponsored College, as follows : section (1). These rules can be changed at any moment. Under paragraph 8 of the terms and conditions of, the sponsored College, the governing Body will adopt rules of business of the Institution as approved by the Government. Paragraph 9 of such terms and conditions provides for the constitution of the Governing Body of a sponsored College, as follows : section (1). One person elected by the Donors from among themselves, election being held by postal ballot section (2) One representative of a guardians' Association to be returned by indirect election from a list of guardians of which twenty five names are to be submitted by the different outgoing Governing body ten names by the IX P. I and ten names by the Syndicate will form an electorate. (3). (4) Two Educationists appointed by the Syndicate out of a panel of four names submitted along with a brief statement of their qualifications by the D.P.L (5) (6). Two elected representatives of the permanently appointed full-time teachers of the College (7) (8). Three nominees of government" Under paragraph 11 of the terms and conditions, the President will be nominated by the Government. He will be either a Commissioner, or the District Magistrate, or the S.D.O, or, an eminent person of the locality. 7. THE Government has also framed rules for the guidance of a sponsored college. Clause B (f) provides that; powers of appointment, discharge, dismissal or reduction of pay etc of teaching and clerical staff of the College shall vest in the Governing Body subject, in the case of teaching staff, to the approval of the education Directorate. Clause D (a) provides that the teaching staff excepting the Principal will be appointed or the recommendation of a Selection Committee constituted with (1) the President of the Governing Body, (2) the Principal of the College and (3) Two nominees of the Director of Public Instruction of whom one will be an expert in the subject concerned. Clause D (a) provides that the teaching staff excepting the Principal will be appointed or the recommendation of a Selection Committee constituted with (1) the President of the Governing Body, (2) the Principal of the College and (3) Two nominees of the Director of Public Instruction of whom one will be an expert in the subject concerned. Further, it has been provided under the proviso to clause D (a)that when a large number of vacancies occur in a subject or subjects in sponsored Colleges a Central Selection Committee may be set up by the Government consisting of : "(1) The Secretary, Education department or, in his absence, the deputy Secretary (Administration)-Chairman; (2) Assistant Director of Public Instruction (Development) or assistant Director of Public Instruction (Planning) - Member and, (3) Two experts on the subject to be nominated by Government. The names of the candidates selected by the Central Selection Committee should be communicated] to the sponsored college concerned for the issue of orders of appointment. " 8. UNDER clause D (b), the Principal will be selected on the recommendation of the Central Selection Committee. Clause D (i) of the rules provides that confirmation of all permanent appointments' after the period of probation will be subject to the approval of the Education Directorate. Under clause D (w), in case of any doubt regarding the interpretation of the rules or any matter which is not covered by the rules, reference may be made by the Governing body, to, the Education Department through, the Directorate., We have referred to the terms and conditions: and also the rules framed by the Government in respect of sponsored colleges only to show the control which the Government exercises over a sponsored college. It has been already stated, that as the authorities of Jagannath Kishore College have, handed over the College, to the Government, it has vested' in the Government and there can be no doubt, that it is the Government which is entitled to run the administration of, the College under its direct control and supervision. Indeed, the" terms and conditions and the rules framed by the Government for sponsored colleges show how deep and pervasive the control is. These rules are realty administrative instructions, for they have not been framed under any provision of law. 9. Indeed, the" terms and conditions and the rules framed by the Government for sponsored colleges show how deep and pervasive the control is. These rules are realty administrative instructions, for they have not been framed under any provision of law. 9. IT is not in dispute that the entire bulk of the expenditure of the College is borne by the Government. The Government pays the salaries and allowances of the members of the teaching and non-teaching staff. Indeed, under paragraph 2 of the terms and conditions which, have been laid down as early as on October 31, 1956 it has been, provided that bulk of "the capital expenditure and also the annual deficit in the maintenance would be met from public funds. Further, it has been provided that the Government will have to take special care, so that the colleges are run efficiently and public funds ate properly utilised. It is true that a Governing body has been set up, but it is apparent that the Governing Body of the College with which we are concerned, functions under the direct control of the Government. It may be that the College may not be regarded as a Government College', but whatever name on status is ascribed to the College, there cannot be any denying of the fact that the Government exercises deep and pervasive control over the College besides meeting its expenses from public funds. The fact is not that the Government only makes a grant in aid as it makes in the case of other educational institutions, but the College has-been taken over by the Government and is functioning under the direct care, control and supervision of the Government 10. AT this stage, we may notice a very significant fact. In paragraph It of the writ petition, the respondent was complaining against the decision of the ' Government to depute an officer of the education Directorate at the meeting of the Governing Body of the College which the respondent was requested by the Director of Public Instruction to convene. In reply to paragraph 11 of the writ petition, in paragraph 14 of the affidavit-in-opposition affirmed by Shri chitta Eanjan Mahato, M. P., the President of the Governing Body of the ' college on behalf of the appellants, it has been stated as follows : "14. In reply to paragraph 11 of the writ petition, in paragraph 14 of the affidavit-in-opposition affirmed by Shri chitta Eanjan Mahato, M. P., the President of the Governing Body of the ' college on behalf of the appellants, it has been stated as follows : "14. With regard to paragraph 11, this deponent states that a sponsored college is an instrumentality of the Government through which the Government implements its educational policy and the nature of control exercised by the Government over the sponsored College entitle the Government to send an observer in the meeting of the Governing Body and no exception can be taken on that score, particularly in view of serious allegations against the writ petitioner that he is not implementing the resolution of the Governing Body which has great financial implications. The control exercised by the Government is admitted by the petitioner in paragraph 3 of the writ petition. " Mr. Dhruba Kumar Mukherjee, learned Advocate appearing on behalf of the respondent submits that the said admission as made by the appellants in paragraph 14 of the affidavit- in- opposition is binding on them and it is not necessary for this Court to decide the question whether the College is an instrumentality or agency of the Government so that it may be said to be a State being an authority under Article 12 of the Constitution. In support of the said contention, Mr. Mukherjee has placed chance upon a decision of the Supreme court in A.L. Kalra vs. The Project and Equipment' Corporation of India ltd., A.I.R. 1984 S.C. 1361. In that case, it was also conceded that the respondent-Corporation was an instrumentality of the Central Government Desai J. who delivered the judgment of the court observed as follows : "this concession absolves us from the obligation to examine the status and character of the respondent-Corporation to determine whether it is an instrumentality of the state and, therefore, comprehended in the expression 'other authority in Art. 12 01 the Constitution Once it is conceded that the respondent corporation is an instrumentality of the State and is, therefore, comprehended in the expression other authority' in Art. 12 of the Constitution, it is indisputable that it is amenable to the writ jurisdiction under Arts 32 and 226 of the Constitution. " 11. " 11. IN view of the above observation of the Supreme Court, the appellants cannot turn round and submit that the college is not an instrumentality or agency of the Government comprehended in the expression "other authorities" in Article12 of the Constitution. 12. APART from the said concession of the appellants, in view of the facts stated above, we have no doubt in our mind that the Jagannath Kishore College is an instrumentality or agency of the Government and is comprehended in the expression 'other authorities' in Article 12 of the Constitution and, as such, it is a 'state' We therefore, overrule the contention of the appellants that as the college is not a 'state' or an 'authority' within the meaning of Article 12 of the constitution, the writ petition was not maintainable. Mr. Bhunia, learned Advocate appearing on behalf of the appellants, however, submits that even assuming that the College is a authority within the meaning of Article 12 of the, Constitution, still no relief can be granted to the, respondent for the reason that the contract of personal service cannot be specifically enforced. Mr. Bhunia has placed much reliance upon two decision's of the Supreme Court in Executive Committee of 17. P. State Warehousing Corporation v. Chandra Kuran Tyagi, AIR. 1970 S.C. 1244 and Sirsi Municipality v. C.K.F. Tellis, A.I.R. 1973 S.C. 855. In these decisions, it has been held by the supreme Court that the position in law is that no declaration to enforce a contract of personal service will be normally granted. But there are certain well recognised exceptions to this rule and they are : (1) a public servant which has been dismissed from service in contravention of Article 311; (2) reinstatement of a dismissed worker under industrial law by labour or Industrial tribunals and (3) a statutory body when it has acted in breach of mandatory obligation, imposed by a statute. We are afraid, the said two decisions have no application to the instant case. The respondent has not been dismissed from service, and, therefore, there is no question of his reinstatement. Moreover, in a later decision of the Supreme Court in sukhdev Singh v. Bhagatram, A.I.R. 1975 S.C. 1331 it has been held that in cases of statutory bodies, there is no personal element whatsoever because of their impersonal character. The respondent has not been dismissed from service, and, therefore, there is no question of his reinstatement. Moreover, in a later decision of the Supreme Court in sukhdev Singh v. Bhagatram, A.I.R. 1975 S.C. 1331 it has been held that in cases of statutory bodies, there is no personal element whatsoever because of their impersonal character. This principle which is applicable to statutory bodies will, in our opinion, also apply to a corporation, a Co-operative society, a government company or an Educational institution which is an instrumentality or agency of the Government and comprehended in the expression "other authorities" under Article 12 of the Constitution. So in the case of an authority which comes within the expression "other authorities" under Article 12, such authority will not have any personal element because of its impersonal character like a statutory body. We are, therefore, unable to accept the contention of the appellants that it is a case of enforcement of the contract of personal service and, as such, the writ petition was not maintainable. 13. THE next contention of the appellants is that the learned Judge was not justified in holding that the charge-sheets were vitiated by bias and closed mind of the Governing Body of the College, which is the disciplinary authority. We have already noticed that in the meeting of the Governing Body held on January 31, 1981, charges were framed against the respondent. The learned Judge has quoted in his judgment the relevant portion of the resolution of the said meeting of the Governing body. It is significant to notice that the resolution starts with the condemnation of the Principal of the College. The relevant portion of the resolution of the meeting as referred to by the learned judge is as follows : "this meeting condemns the action of Dr. A. K. Chakraborti, the Principal Secretary, in walking out of last G. B. Meeting (4.10.80)which was convened by him, and the items of the Agenda therein, too, were drawn up by him to the exclusion of all other items approved by the President. The Meeting feels that the Principal Secretary's leaving the said meeting. . . . . . had been an act of flagrant defiance of the G. B., insubordination and indiscipline, whereby he has undermined the dignity of the august Governing Body and also of the high office he holds. . . . . . . . The Meeting feels that the Principal Secretary's leaving the said meeting. . . . . . had been an act of flagrant defiance of the G. B., insubordination and indiscipline, whereby he has undermined the dignity of the august Governing Body and also of the high office he holds. . . . . . . . . . . . . . Be it resolved, therefore, that a Committee be formed consisting of the following members, to enquire into the Principal Secretary, Dr. A. K. Chakraborti's acts of omission and commission which have been persistently prejudicial to the academic and financial interest of the institution. . . . . . . . . . . . . . . . . . Further resolved that notice be issued to Dr. A. K. Chakraborti, in this very meting asking him to show-cause. . . . . . . . . . why penal action should not be taken against Dr. A. K. Chakraborti, on the following counts. . . . . . . . . . . . . . . . . The show-cause notice having been served on Dr. A. K. Chakraborti, the Principal Secretary, in this meeting and the Committee having been formed to enquire into his maladministration and gross abuse of power and authority, it is resolved that Dr. A,,k. Chakraborti be placed under suspension with immediate effect, as per provisions of the West Bengal College Teachers' (Security of Service) Act, 1979- Section 11 (a) "it will appear from the resolution, quoted above that although a Committee of Enquiry was constituted, the Governing body proceeded with a closed mind against the respondent. Indeed, the Governing Body in the said resolution condemned the Principal for his allegedly leaving the meeting held on october 4, 1980, which is also one of the charges levelled against the respondent. The Committee was set up for enquiry into the maladministration and gross abuse of power and authority of the respondent. It is, therefore, very clear that the Governing Body was of the view that the respondent was guilty of the charges levelled against him. The Committee was set up for enquiry into the maladministration and gross abuse of power and authority of the respondent. It is, therefore, very clear that the Governing Body was of the view that the respondent was guilty of the charges levelled against him. It seems that because the West Bengal College teachers' (Security of Service) Act, 1979 and the rules framed there under have laid down the procedure for taking disciplinary action against a member of the teaching staff, the Governing Body constituted the Enquiry Committee consisting of three members of the governing Body including the President C. R. Mahato, M. P. There can be no doubt that except the respondent, the other members of the Governing Body including the members of the Enquiry Committee formed an opinion against the respondent. If a person is condemned at the very outset and the Enquiry Committee is set up to enquiry into his maladministration and gross abuse of power and authority, we are afraid, such enquiry will be a mere formality. It is also apparent that the Governing Body was biased against the respondent so much so that it condemned the respondent and took it to be granted, without giving, the respondent any opportunity of being heard, that he was guilty of maladministration and gross abuse of power and authority. 14. IT is true that an order of suspension in contemplation of a disciplinary proceeding is not a punishment. The learned Judge has also held that the impugned order of suspension is not a punishment. But in the context of facts and circumstances under which the respondent was suspended, there is some substance in the contention of Mr. Mukherjee that the suspension was made by way of punishment. The Governing body condemned the respondent and proceeded on the basis that he was guilty of maladministration and abuse of power and authority and, thereafter, placed him under suspension in the same sitting. Such suspension may be viewed as a punishment. The learned judge was, therefore, right in holding that the members of the Governing body were biased against the respondent as they had already made up their minds against the respondent in regard to the charges contained in the said resolution. Such suspension may be viewed as a punishment. The learned judge was, therefore, right in holding that the members of the Governing body were biased against the respondent as they had already made up their minds against the respondent in regard to the charges contained in the said resolution. With regard to the second charge sheet containing four charges, it may be noticed that the four charges are totally different from the charges mentioned in the said resolution of the Governing body dated January 31, 1981 or in the charge-sheet that was served pursuant to the said resolution. The second charge-sheet was served on the respondent by C. R. Mahatp and M. M. Mondal, two of the members of the Enquiry Committee, under cover of their letter dated april 28, 1981. The charges were framed in the meeting held on April 21, 1981 of the Governing Body of the college without any item in the Agenda in that regard. It appears from the minutes of the proceeding of the said meeting held on April 21, 1981 that this time also the resolution started with the condemnation of the Principal. It has bean rightly observed by the learned Judge that it is not clear from the resolution whether the first charge-sheet was given the go by. Of the three members of the Enquiry Committee, Shrisusanta kumar Hazra having declined to act as a member of the Enquiry Committee, the other two members, Shri C.R. Mahato, m. P., the President of the Governing Body and Professor M.M. Montial, were appointed Enquiring Authority appointed in the said meeting held on April 21, 1981 to enquire into the charges levelled against the respondent in the earlier meeting dated January 31, 1981. Further, there is nothing to show that the Governing Body authorised the said two members of the Enquiry Committee to serve the charge-sheet on the respondent. The learned Judge is also justified in observing that the language of the resolution showed that the members of the Governing Body were biased against the respondent. 15. AFTER considering the above facts and circumstances, we are of the view that the Governing Body of the College, which is the disciplinary authority, proceeded with a bias and closed mind against the respondent in respect of changes levelled against him as contained in both the charge-sheets in violation of the principles of natural justice. 15. AFTER considering the above facts and circumstances, we are of the view that the Governing Body of the College, which is the disciplinary authority, proceeded with a bias and closed mind against the respondent in respect of changes levelled against him as contained in both the charge-sheets in violation of the principles of natural justice. Accordingly, we are of the view that no useful purpose will be served by allowing the Governing Body to enquire into the said charges against the respondent. The learned Judge was, therefore, perfectly justified in quashing the charge-sheets and the order of suspension and the enquiry held on such charge-sheets, against the respondent. 16. IN the result, the appeal is dismissed. There will, however, be no order as to costs. The appellants are directed to reinstate the respondents with arrears of salaries within four weeks from date.