Purshottam Nagar v. State of Rajasthan (73) — 1992 DIGILAW 96 (RAJ)

AGRAWAL, C.J. - This appeal has been preferred by the appellant, Purshottam Nagar, against the judgement of the learned Single Judge dated 7.03.1991 dismissing his writ petition. (2) The facts in brief are that the appellant-Purshottam Nagar was appointed as Director of the Rajasthan Hindi Granth Academy, Jaipur (for short Academy), a society registered under the Societies Registration Act, for a period of two years in pursuance of recommendation made by the Selection Committee. It was notified in the appointment letter dated 30.12.81 that the appellant would be entitled to other perks and allowances in accordance with the terms and conditions of the Academy. (3) The period of probation of the appellant was extended from time to time, the last of which was upto January 8, 1985 (Annexure 8 to the writ petition). Vide this order though the period of probation was extended but he was discharged with immediate effect. (4) The appellant challenged his discharge/termination by filing S.B. Civil Misc. Writ Petition No. 100 of 1985. During the pendency of this writ petition, a decision was taken by the Government on July 15, 1987 to reinstate him. The order was, however, issued by the Government on January 2, 1990 (Annexure 28 to the writ petition) under the signatures of Sri Damodar Das Acharya, the then Minister of Education and Chairman of the Academy cancelling discharge/termination order of the appellant dated 8.1.1985 and re-appointing him on the post of Director of the Academy, which is reproduced below: ^^Mk- iq:rks"ke ukxj dks jktLFkku fgUnh xzUFk vdkneh ds funskd in ij jkT; ljdkj ds vknsk dzekad- i- 14¼3½ fk{kk 4@79 fnukad 2-1-90 ds dze esa rqjUr izHkko ls iqu% inLFkkfir fd;k tkrk gSA buds vuqifLFkfr dky dk lEiw.kZ osru dk fu;ekuqlkj Hkqxrku fd;s tkus ds Hkh vknsk iznku fd;s tkrs gSaA Soon thereafter on 25.01.1990 Shri Damodar Das Acharya passed another order (Annexure 31 to the writ petition) making the appellant permanent with effect from 1.1.1984 and regularising his services from 8.1.1985, the date on which he was terminated to 2.1.1990, the date of reinstatement. The same is also reproduced below: ^^jkT; ljdkj ds vknsk la- dzekad ,& 14¼3½ fk{kk@4@79 fn- 2-1-90 ds dze esa Mk- iq:"kksRre ukxj dks jktLFkku fgUnh xzUFk vdkneh ds funsZkd ds in ij muds ewy ifjoh{kk dky dh lekfIr ds fnukad 1-1-84 ls LFkk;h :i ls fu;qDr fd;k tkrk gSSA budks fnukad 8-1-85 tcfd budh lsok;sa lekIr dh xbZ Fkh ls fnukad 2-1-90 tcfd bUgsa iqu% inLFkkfir fd;k x;k rd dk leLr osru] osruo`f);kW] HkRrs vkfn dk iw.kZ Hkqxrku djus dh Lohd`fr iznku dh tkrh gSA (5) In view of the aforesaid orders S.B. Civil Misc. Writ Petition No. 100 of 1985 was withdrawn by the appellant. On the withdrawal, the following order was passed by this Court: — "Mr. G.S. Singhvi, learned counsel for the petitioner wants to withdraw the petition. Same is, therefore, dismissed as withdrawn." (6) After the withdrawal, the appellant apprehended that the Government of Rajasthan was contemplating to remove him from the post of Director again and, therefore, he filed the present writ petition praying for the following main relief: "by an appropriate writ, order or direction the respondents be directed to produce the entire record of the case relating to the petitioner and the Honble Court may kindly restrain the respondents from terminating the petitioners service from the post of Director, Rajasthan Hindi Granth Academy and/ or removing the petitioner from that office in any other manner." (7) The writ petition was contested by the Academy and the claim of the appellant that he was permanent, was disputed as wrong. It was alleged that the appellant was temporary/probationer and that as he had not been confirmed, he had no right on the post and that the Academy could justifiably remove him. The Academy further claimed that the Chairman had no power to reinstate the appellant and to pass re-instatement order dated 2.01.1990 without approval of the Executive Committee. (8) On the pleadings of the parties the learned Single Judge framed the following three questions for decision: "(i) What is the status of the petitioner, Dr. Purshottam Nagar, whether he continued to be a probationer upto January 8, 1985, or he can be deemed to be confirmed on the post? (ii) Whether the order of discharge from the service of the petitioner as probationer is an order of simpliciter discharge or in punitive in nature? Purshottam Nagar, whether he continued to be a probationer upto January 8, 1985, or he can be deemed to be confirmed on the post? (ii) Whether the order of discharge from the service of the petitioner as probationer is an order of simpliciter discharge or in punitive in nature? (iii) Whether Rajasthan Hindi Granth Academy, Tilak Nagar, Jaipur, is State within the meaning of Article 12 of the Constitution of India." (9) Taking up point no. (iii) relating to maintainability of the writ petition, the learned Single Judge held that the Academy was an instrumentality or agency of the State and as such, was State within the meaning of Article 12 of the Constitution and therefore, was amenable to the writ jurisdiction under Article 226 of the Constitution of India. On point no. (ii) the finding of the learned Judge was that the appellant was a probationer, and the order discharging him, being not effective in nature, was not invalid. On point no. (i) the finding of the learned Judge was that the appellant could not be deemed to be confirmed on the post on which he was appointed as probationer. (10) Aggrieved, the appellant has filed this special appeal. (11) On the question as to whether the appellant was a probationer or he could be held to have been substantially appointed on the post of Director of the Academy, the learned Single Judge held that the appellant was a probationer and that he could be discharged. We have noted above that by order dated 8.1.1985, the appellant had been discharged from the post of Director of the Academy but subsequently, the Education Minister, who was also the chairman of the Academy, revoked the said order by his order dated 2.1.1990 and reinstated him with full back wages. The same Education Minister and the Chairman of the Academy again issued an order on 25.1.1990 directing for payment of salary and other emoluments for the period between discharge and reinstatement on the ground of completion of the probationary period. (12) Learned Advocate General contended before us that the appellant was not fit to be confirmed and the Academy was entitled to adjudge his suitability. (12) Learned Advocate General contended before us that the appellant was not fit to be confirmed and the Academy was entitled to adjudge his suitability. He referred to the complaints received against him and also pointed out that the Education Minister did not have the jurisdiction either to recall the order dated 8.1.85 or to direct for the payment of salary on the assumption that by virtue of completion of the probationary period, the appellant was entitled to the same. (13) A number of authorities were cited at the Bar about the right of a probationer and his entitlement for appointment on the confirmed post. Learned Single Judge has rightly held the appellant to be a probationer. Discharge of a probationer at any time does not attract Article 311(2) see AIR 1963 SC.1552 (1). Therefore, Article 311 (2) did not apply to this case. That being so, the basis of the judgment of the learned Single Judge considering the rights of the appellant, was not correct. (14). Learned counsel for the appellant urged that even if Art. 311(2) does not apply to the instant case, the action of the Society could not be arbitrary. Learned counsel showed that the nature of employment of the appellant was permanent and that he had a right to continue in service till he had not been terminated in accordance with law. Termination otherwise without following the procedures, which may cast stigma on him, would be against the basic notion of principles of natural justice, which is implied in Art. 14 of the Constitution. (15). An action of termination cannot be called to be arbitrary if judging the suitability, his merits are evaluated and his deeds are examined. On the basis of a number of complaints received against the appellant, the Secretary of the Academy recommended that since his performance during the probationary period had been extremely dismal, his continuance on the post seemed to be unreasonable. We find that as Art. 311 (2) did not apply to the appellant, termination of his employment did not deprive him of any right and could not, therefore, by itself a punishment. A number of decisions were cited to prove that termination amounted to punishment as no formal enquiry was held, affording full opportunity to the appellant and on this basis it was vehemently argued that the termination order was liable to be quashed. A number of decisions were cited to prove that termination amounted to punishment as no formal enquiry was held, affording full opportunity to the appellant and on this basis it was vehemently argued that the termination order was liable to be quashed. But, from the facts of the case, what we find is that the appellant had not been terminated and there was no basis for making an assertion on which the relief had been claimed. He could have a cause of action if there had been an actual removal or termination; but that was not so. His assertion of intended removal by the Academy is based on pure conjectures and guess. One of the established rules of pleading is that the things must be stated with reasonable fitness certainty and clarity in order that they may be understood by the answering party and the court, to ascertain the truth and to give judgment. The usual test is that the cause of action must be alleged with such a certainty that it should give fair notice to the opposite party of the character of the claim or demand made against him so as to enable him to prepare his case. Unless the pleadings meet the requirement of certainty and definitness, it would be liable to be called as in-intelligible. The petition, in our view, was pre-mature and was based on speculations, for which no relief could be given to the appellant. (16) We may now take up the question as to whether the Academy was a State or any other authority within the meaning of Art. 12 of the Constitution. We have gone through the Memorandum of Association of the Academy as well as its rules and regulations framed for enabling the Academy to run its administration. The Academy was registered under the Societies Registration Act for achieving the various objects mentioned in clause 3 of the Memorandum. Its main object was to establish at Jaipur in the State of Rajasthan a Hindi Granth Academy for the production and publication of Scientific and Technical literature and Humanities literature of University standard in Hindi language. The Academy was registered under the Societies Registration Act for achieving the various objects mentioned in clause 3 of the Memorandum. Its main object was to establish at Jaipur in the State of Rajasthan a Hindi Granth Academy for the production and publication of Scientific and Technical literature and Humanities literature of University standard in Hindi language. (17) Learned counsel for the appellant emphasised that to publish scientific and technical literature was the function of the State Government and to pass on that obligation to the Academy and to make it responsible for the same could only be possible when the Academy became instrumentality and an agent of the State. We are not inclined to agree with the learned counsel. In our opinion, undertaking of preparation and publication of books, materials and other literatures are not wholly related to governmental function. Therefore, it would not be correct that simply by carrying out the aforesaid functions, the Academy became State or its agent or instrumentality. (18) In Chandra Mohan Khanna vs. NCERT (2). NCERT was a registered society under the Societies Registration Act, the object of which was to assist the Ministry of Education and Social Welfare in the implementation of Govt. policies and major programmes in the field of education , particularly social education. The Honble Supreme Court repelled the argument and agreeing with the view of the Delhi High Court held that these activities were not wholly related to governmental activities and that a society could not lawfully discharge the same. The relevant portion of the judgement is quoted below : — "There are only general principles but not exhaustive tests to determine whether a body is an instrumentality or agency of the government. Even-in general principles, there is no cut and dried formula which would provide correct division of bodies into those which are instrumentalities or agencies of the government and those which are not. The powers, functions, finances and control of the government are some of the indicating factors to answer the question whether a body is State or not. Each case should be handled with care and caution. Where the financial assistance from the State is so much as to meet almost entire expenditure of the institution, or the share capital of the corporation is completely held by the government, it would afford some indication of the body being impregnated with governmental character." (19). Each case should be handled with care and caution. Where the financial assistance from the State is so much as to meet almost entire expenditure of the institution, or the share capital of the corporation is completely held by the government, it would afford some indication of the body being impregnated with governmental character." (19). In the instant case, the fact is that the State and Central Government gave financial assistance to the society, but Clause 4 (b) and (c) of the Memorandum of Association, which are quoted below, make it clear that the fund of the Academy would not be confined only to the amount received from the Central or State Government but it could receive gifts, donations, benefactions, bequests or transfers etc. from the private individuals or bodies recognised by a Society: — "(b)all moneys received by Academy by way of grants, gifts, donations, benefactions, bequests or transfers, and; (c) all moneys received by the Academy in any other manner such as scale of the Academy property etc., or from any other sources."Hence, the emphasis of the learned counsel for the appellant that major contribution is of the State or Central Government, does not have much force. Had the finance been contributed only by the State or the Central Government and it would have deep and pervasive control over the administration, the position would have been different. (20) Clause 5 (a) of the Memorandum gives the details of the first members of the Academy which includes within its purview a number of private individuals and those associated with private Colleges and institution, such as, Birla Institute of Science and Technology, Pilani, Malviya Regional Engineering College, Jaipur, Dean Faculty of Engineering, Jodhpur University etc. These are some of the illustrations apart from Clauses 13 to 15, which entitled eminent educationists and other experts to become its members. Conclusively, therefore, it would be incorrect to say that the administration of this Academy was exclusively and solely in the hands of the State Government. The ratio laid down in the Chandra Mohan Khanna vs. NCERT (Supra), therefore, concludes the controversy as to whether it was instrumentality or agency of the State against the appellant. Conclusively, therefore, it would be incorrect to say that the administration of this Academy was exclusively and solely in the hands of the State Government. The ratio laid down in the Chandra Mohan Khanna vs. NCERT (Supra), therefore, concludes the controversy as to whether it was instrumentality or agency of the State against the appellant. As already stated above, that was also a Society registered under the Societies Registration Act and was governed by a Memorandum of Association to assist and advise the Ministry of Education and Social Welfare in the field of Education. The court in that case found the NCERT was a voluntary organization, although the annual financial contribution from the State was substantial, but since it was entitled to receive aid from the public, it was not an instrumentality or the State. In our opinion, the objects for which the society had been registered were not governmental business and the Government did not exercise pervasive control over NCERT, the Supreme Court affirmed the following observations of the Full Bench:- "In a welfare State.... governmental control is very pervasive and in fact touches all aspects of social existence. A broad picture of the matter has to be taken and a discerning mind has to be applied keeping the realities and human experiences in view so as to reach a reasonable conclusion." (21) Learned counsel for the appellant referred to a number of decisions of the Supreme Court to make out his submission of the Society being a State. We have gone through the decisions reported in Sukhdeo Singh vs. Bhagatram (3), R.D. Shetty vs. International Airport Authority of India (4), Vijay Hasia vs. Khalid Mujib (5), Som Prakash Rekhi vs. Union of India (6), R.K. Ramachandra Iyer vs. Union of India (7), Central Inland Water Transport Corporation Ltd. vs. Brojo Nath Ganguli (8) and Tekraj Basandi alias K.L. Basandhi vs. Union of India (9) and following the law laid down by the Honble Supreme Court in Chandra Mohan Khannas case (supra) we are unable to be pursuaded to agree with the contention of the learned counsel for the appellant. Article 12 should not be stretched so as to bring in every autonomous body which has some nexus with the government within the sweep of the expression State. A wide enlargement of the meaning must be tempered by a wise limitation. Article 12 should not be stretched so as to bring in every autonomous body which has some nexus with the government within the sweep of the expression State. A wide enlargement of the meaning must be tempered by a wise limitation. It must not be lost sight of that in the modern concept of Welfare State, independent institution, corporation and agency are generally subject to State control. The State control does not render such bodies as State under Article 12. (22) Learned counsel for the appellant, time and again, referred to the decision rendered in Shamsher Singh vs. State of Punjab (10). This decision is of no help for the reason that the appellant is not civil servant whereas the Shamsher Singhs case (Supra) deals with Art. 311 of the Constitution. Moreover, the judicial approach in cracking open the corporate shall is somewhat cautious and circumspect. It is only where the Legislative provision justified the adoption of such a course of removal of the veil. Broadly stated, where fraud is intended to be prevented or trading with an enemy is sought to be defeated, the veil of a corporation can be lifted. In the absence of any provision of law, which enables a Court to go behind the legal entity of the corporation or company registered under the Act, we do not think that it is open to us to say that the company is quite different from what it purports to be according to the provisions of law governing its constitutions, functions and obligations. (23) Denning L.J. in Tamlin vs. Hannaform (11) had an occasion to consider this aspect of the matter. The decision given in that case by Lord Denning is quoted below : — "In the eye of the law the corporation is its own master and is answerable as fully as any other person or corporation. It is not the Crown and had none of the immunities or privileges of the Crown. Its servants are not Civil servants, and its property is not Crown property. It is as such bound by Acts of Parliament as any other subject of the King. It is of course, no doubt are public purposes. It is not the Crown and had none of the immunities or privileges of the Crown. Its servants are not Civil servants, and its property is not Crown property. It is as such bound by Acts of Parliament as any other subject of the King. It is of course, no doubt are public purposes. But it is not a Government Department nor do its powers fall within the province of Government." (24) At this stage, it would not be out of place to mention that while deciding the case reported in Chandra Mohan Khanna vs. NCERT (Supra), the Supreme Court referred to all the decisions, which have been brought to our notice by the learned counsel for the appellant and after considering those decisions, the view that the Society was neither instrumentality nor agency of the State was taken. Since this is the latest decision having considered all the previous decisions, it would be futile exercise for us to refer to those cases and to increase the bulk of this judgment. Reference, however, does not appear to have been made by the Supreme Court to Samsher Singhs case (supra). In that case the controversy was with regard to termination of a probationer. It was held that if a probationer was discharged on the ground of misconduct or inefficiency without a proper inquiry and without his getting a reasonable opportunity, it would be a case of Art. 311(2). This authority does not have any bearing on the controversy in hand. . (25) The next contention of the learned counsel for the appellant was that as the State Government had not filed any writ petition, it could not argue that the finding of the learned Single Judge holding that the Academy was State , was liable to be quashed. In this connection, it was also urged that the appellant had since been found to be a probationer by the learned Single Judge, for termination of whom an inquiry would have to be conducted, the appeal Bench could not reverse the judgement of the learned Single Judge. For both of the aforesaid submissions, he relied on 0.41. R. 22 CPC. 0.41 is meant for regulating the civil proceeding in a civil court and that does not apply to a case of a civil appeal. For both of the aforesaid submissions, he relied on 0.41. R. 22 CPC. 0.41 is meant for regulating the civil proceeding in a civil court and that does not apply to a case of a civil appeal. Section 141 CPC, which has been amended by 1976 Civil Laws (Amendment) Act, has no bearing on the controversy in issue. That gives an explanation only to an effect that proceeding shall include any proceeding under Art. 226 of the Constitution. However, that is not the controversy here. The writ jurisdiction is extraordinary in nature and the court has power in the ends of justice to hear a party in a matter like this where the finding has not been challenged by means of a writ. Moreover, when the writ of the appellant had been rejected the respondent could not have any occasion to challenge the findings and observations of the learned single Judge by filing a writ petition. The respondent rightly throught that he was not affected by any finding or observations made by the learned Single Judge. (26) Learned counsel for the appellant next urged that the decision in Chandra Mohan Khanna (supra) is per incuriam, inasmuch as, it did not take into account the previous binding decisions of the Supreme Court. His contention was that according to the settled principles of law, if there are decisions of the larger Bench, that would be binding on the smaller Benches and as the Chandra Mohans case (supra) was decided by two judges, whereas others by more, this decision cannot be considered to be laying down the law binding on the High Courts. This controversy calls upon us to decide as to whether, despite Art. 141 of the Constitution, it is open to this court to ignore a decision of the Supreme Court, although it is latest on the point and has taken into consideration all the previous decisions on the basis of the same being per incuriam. Per incuriam entitles a court to enforce a decision if that was given by a Bench ignoring the earlier judgments of the larger Bench. (27). Precedent, it has been said, is the life blood of legal systems-see C.K. Allen, Law in the Making (7th edn. Oxford 1964 - 243). Per incuriam entitles a court to enforce a decision if that was given by a Bench ignoring the earlier judgments of the larger Bench. (27). Precedent, it has been said, is the life blood of legal systems-see C.K. Allen, Law in the Making (7th edn. Oxford 1964 - 243). What it suggests is that, in any legal system, a practice exists of deciding cases on the basis of decisions made in similar cases in the past. But, there are well recognised exceptions to this rule of precedent. One of the exceptions is that if the decision cited is per incuriam. What is meant by giving a decision per incuriam is giving a decision when a case or a statute has not been brought to the attention of the court and they have given the decision in ignorance or forgetfulness of the existence of that case on that statute. (See. 1947 All England Law Reports 196). (28). We are bound by the law declared by the Supreme Court under Art. 141 and when the Supreme Court has considered its previous decisions and found no inconsistency between them, we cannot ignore the subsequent decision of the Supreme Court by applying the principle of per incuriam. It was laid down by the House of Lords in Cassell & Co. Ltd. vs. Brooma (12) that the decision of the House of Lords are binding on the court of appeal and it is not open to that court to advise the Judges to ignore the decisions of the House of Lords on the ground that they were per incuriam. The relevant portion is quoted below : — "Decisions of the House of Lords are binding on the Court of appeal and it is not open to that court to advise judges to ignore decisions of the House on the ground that they were decided per incuriam or are unworkable (see p 809 d to g. p 835 h, p 859 hp. 874f and p 878 f, post. Furthermore (per Lord Hailsham of St. 874f and p 878 f, post. Furthermore (per Lord Hailsham of St. Marylebone LC and Lord Diplock) although it is open to an appellate court to decline to follow one of its own previous decisions on the ground that it was decided per incuriam, the Court of Appeal is not entitled to disregard a decision of the House of Lords, nor is a judge of the High Court entitled to disregard a decision of the Court of Appeal. On that ground (see p 809 h and p 874 h , post)." (29) Thus, the mere fact that rule of per incuriam applies to the Supreme Court does not entitled the High Court to apply the same as exception. We have no doubt, as we have already held above, that the controversy is covered by the decision rendered in Chandra Mohan Khanna vs. NCERT (supra). (30) On the point of mandamus, we are of the opinion that unless otherwise provided by statute, mandamus is not an appropriate remedy for the enforcement of private contract where there is no question of any public duty, for in such case the party usually has an adequate legal remedy by way of an action for damages. A contrary doctrine would necessarily have to effect of substituting the writ of mandamus in place of a decree for specific performance, the courts have, therefore, refused to extend the jurisdiction into the domain of contract rights. The writ is not available to compel the making of private contract, mandamus will not issue to enforce performance of a contract of employment, where neither the compensation, length of service, nor duties of employees are fixed by statute and so the writ ordinarily will not issue. (See American Jurisprudence 2nd Vol. p. 391). Mandamus is issued in favour of a person whose rights have been infringed, of which the discharge of duty on the part of the opposite party was necessary. But where no legal right has been violated, there can be no application of a legal remedy and the writ of mandamus would not be issued. In the instant case, we are unable to find that the appellant had any right which had been breached or he was entitled to get the relief for his protection. There is no force in this appeal and it deserves to be dismissed. In the instant case, we are unable to find that the appellant had any right which had been breached or he was entitled to get the relief for his protection. There is no force in this appeal and it deserves to be dismissed. (31) In the result, the appeal fails and is dismissed without any order as to costs.