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2000 DIGILAW 61 (GAU)

Prabhu Nath Pandey v. Union of India

2000-02-15

A.K.PATNAIK

body2000
In this batch of writ applications under Article 226 of the Constitution, petitioners have challenged notices terminating their services as teachers in the Army School, Narengi in Guwahati. 2. The petitioner in WP (C) No. 5078 of 1999, Shri Prabhu Nath Pandey, was appointed by the letter dated 14.11.92 of the Chairman, Army School, Narengi as a Trained Graduate Teacher in the Army School, Narengi at Guwahati. In the said appointment letter dated 14.11.92, it was stipulated that the post was purely temporary and services of the petitioner can be terminated by the Chairman at any time without assigning any reason or short notice. It was also stipulated in the said letter that the Principal will submit performance report of the petitioner after every three months to the Chairman. Pursuant to the said appointment, the petitioner worked as a Trained Graduate Teacher in Sanskrit in the said school on ad hoc basis on extensions given to him from time to time. By letter dated 4.8.98, the appointment of the petitioner was upgraded from the status of an ad hoc teacher to the status of a probationer. In the said letter dated 4.8.98 issued on behalf of the Chairman, Army School, 'Narengi, it was stipulated that the petitioner will be kept on probation for six months from 1.8.98 to 31.1.99. Thereafter, by letter dated 30.4.99, as per the directions of the Chairman of the fa Army School, Narengi, the Principal of the school informed the petitioner that his probation period has been extended to six months from 31.1.99 to 31.7.99 to enable him to improve his performance. By letter dated 17.8.99 issued on behalf of the Chairman, Army School, Narengi, the petitioner was again informed that the period of his probation was extended for another six months till 31.1.2000. but by the impugned notice dated 9.9.99 issued by the Chairman, Army School, Narengi, the petitioner was informed that through a performance analysis, various shortcomings have been noticed in his functioning as a Trained Graduate Teacher (Sanskrit) and that as per Article 129 (a) of the AWES Rules and Regulations for Army Schools, 1997, services of the petitioner was terminated wef 15.10.99. Aggrieved, the petitioner has prayed for quashing the said notice dated 9.9.99 terminating his services as a Trained Graduate Teacher (Sanskrit). 3. Aggrieved, the petitioner has prayed for quashing the said notice dated 9.9.99 terminating his services as a Trained Graduate Teacher (Sanskrit). 3. The petitioner in WP (C) No. 5120 of 1999, Mrs Riju Sharma, was appointed as a Primary Teacher (PRT) in the Army School, Narengi on probation for a period of one year w.e.f 1 August, 1998 by letter dated 25.7.98 issued on behatf of the Chairman of the Army School, Narengi. In the said appointment letter, it was stipulated that the appointment of the petitioner will be confirmed after one year provided her performance was found to be satisfactory by the School Management. Pursuant to the said appointment, the petitioner worked as a Primary Teacher in the aforesaid school. By letter dated 1.11.98, the petitioner was upgraded to the post of Trained Graduate Teacher to which she was appointed on probation for one year wef 9.11.98 and it was stipulated in the said letter of appointment dated 1.11.98 that the appointment of the petitioner as a Trained Graduate Teacher will be confirmed after one year provided her performance was found to be satisfactory by the School Management. But by notice dated 9.9.99, the petitioner was informed that through a performance analysis, various shortcomings have been noticed in her functioning as Trained Graduate Teacher and that her services were terminated wef 15.10.99 as per Article 129(a) of AWES Rules and Regulations for Army Schools, 1997. Aggrieved, the petitioner has prayed for quashing of the said notice dated 9.9.99 terminating the services of the petitioner. 4. The petitioner in WP (C) No. 5121 of 1999, Miss Rosalind Margaret Farewell, was appointed as a Primary Teacher (PRT) in the Army School, Narengi on probation for one year w.e.f..8.98 by letter dated 4.8.98 and in the said letter, it was stipulated that the appointment of the petitioner will be confirmed after one year provided her performance was found to be satisfactory by the School Management. Pursuant to the said appointments, the petitioner worked in the said school as a Primary Teacher. But by letter dated 9.9.99, the petitioner was informed by the Chairman of the Army School, Narengi that through a performance analysis, various shortcomings have been noticed in her functioning as a Primary Teacher (PRT) and that her services were terminated wef 15.10.99 as per Article 129 (a) of AWES Rule and Regulations for Army Schools, 1997. But by letter dated 9.9.99, the petitioner was informed by the Chairman of the Army School, Narengi that through a performance analysis, various shortcomings have been noticed in her functioning as a Primary Teacher (PRT) and that her services were terminated wef 15.10.99 as per Article 129 (a) of AWES Rule and Regulations for Army Schools, 1997. Aggrieved, the petitioner has prayed for quashing the said notice dated 9.9.99 terminating the services of the petitioner. 5. The petitioner in WP (C) No. 5122 of 1999, Miss Sujaya Roy was appointed as a Post Graduate Teacher (PGT) in the Army School, Narengi on probation for one year wef 01 Sept 98 by letter dated 31.8.98 issued on behalf of the Army School, Narengi. In the said letter dated 31.8.98, it was stipulated that the appointment of the petitioner will be confirmed after one year provided her performance was found to be satisfactory by the School Management. But by notice dated 9.9.99, the petitioner was informed that through a performance analysis various shortcoming have been noticed in her functioning as a Post Graduate, Teacher (History) and that her services were terminated wef 15.10.99 as per Article 129 (a) of AWES Rules and Regulations for Army Schools, 1997. Aggrieved, the petitioner has prayed for quashing the said notice dated 9.9.99 terminating her services. 6. Mr. GK Bhattacharyya, the learned counsel for the petitioners, submitted at the time of hearing that the Army School, Narengi was associated with the Army and the Ministry of Defence. He referred to the appointment letters and the terminations notices to show that they have been issued by Army officers of the rank of Brigadier and Colonel. He further submitted that the corpus of the fund required to run the school was provided by the Govt of India. Hence, the Army School, Narengi was a 'State' within the meaning of Article 12 of the Constitution and was amenable to the writ jurisdiction of this Court. Alternatively, Mr. Bhattacharyya contended that even if it is held that the Army School was not a 'State' within the meaning of Article 12 of the Constitution, since the authorities of the school are performing public duties, a writ of Mandamus can always be issued by this Court to them. He cited the decision of the Supreme a Court in And! Bhattacharyya contended that even if it is held that the Army School was not a 'State' within the meaning of Article 12 of the Constitution, since the authorities of the school are performing public duties, a writ of Mandamus can always be issued by this Court to them. He cited the decision of the Supreme a Court in And! Mukta Sadguru Shri Muktajee Vandas S wami Suvarna Jayanti Mahotsov Smarak Trust & others vs. VR Rudani & others reported in (1989) 2 SCC 691 in which it was held that aided institutions like Govt institutions discharge public function by way of imparting education to students and, therefore, employment in such institutions is not devoid of any public character and that there is a legal right duty relationship between the staff and the management and where there is existence of this relationship, Mandamus cannot be refused to the aggrieved party. Mr. Bhattacharyya also relied on the decision of the Supreme Court in Unnikrishnan JP & others vs. State of Andhra Pradesh & others reported in (1993)1 SCC 645 for the proposition that educational institutions discharge public duty and would come within the meaning of any person or authority under Article 226 of the Constitution and a writ of Mandamus can be issued to such an educational institutions. According to Mr. Bhattacharyya, therefore, the writ petitions were maintainable against the authorities of the Army School, Narengi. On merits, Mr. Bhattacharyya contended that even though the petitioners were appointed on probation, their services cannot be terminated by the authorities of the Army School arbitrarily. The appointment letters in case of the petitioners in WP (C) No. 5120 of 1999, WP (C) No 5121 of 1999 and WP (C) No. 5122 of 1999 would show that they were all appointed on probation for a period of one year and it was stipulated in the letters of appointment that they will confirmed after one year provided their performance were found to be satisfactory. But before expiry of the period of one year of their appointment, they have been served with notices terminating their services. Regarding the petitioner in WP (C) No. 5078 of 1999, Shri Prabhu Nath Pandey, Mr. Bhattacharyya submitted that he was initially appointed by letter dated 14.11.92 and was thereafter appointed on probation by letter dated 4.8.98 for a period of six months. Regarding the petitioner in WP (C) No. 5078 of 1999, Shri Prabhu Nath Pandey, Mr. Bhattacharyya submitted that he was initially appointed by letter dated 14.11.92 and was thereafter appointed on probation by letter dated 4.8.98 for a period of six months. But he was granted extension even after the expiry of six months a from time to time till 31.1.2000 presumably because his performance was found to be satisfactory but by the impugned notice his services have also been terminated wef 15.10.99. According to Mr. Bhattacharyya, therefore, this was a fit case in which this Court should quash the notices terminating the services of the petitioners. 7. In reply, Mr. N Choudhury, the learned counsel for respondent Nos 2,4 and 5 relied on the affidavit-in-opposition filed on behalf of respondent Nos 2,4 and 5 and submitted that the averments in the affidavit-in-opposition would show that the Army School, Narengi is established by the Army Welfare Education Society (for short the AWES) and that the said society is not a Department of the Govt of India but is a society registered under the Societies Registration Act, 1860. He further submitted that the AWES does not receive any aid from the Union of India, ft was not rendering any public service and carries out some welfare activities for the Armed force personnel. He contended that the AWES is governed by a Board of Governors which is assisted by a Managing Committee and the Govt of India or the State Govt has no influence or control over the said Board of Governors or the Managing Committee. According to Mr. Choudhury, AWES or the Army School at Narengi is not a 'State' within the meaning of Article 12 of the Constitution and is, therefore, not amenable to the writ jurisdiction of this Court. Mr. Choudhury cited a decision of the Jammu & Kashmir High Court in Mrs Asha Khosa vs. Chairman, Army Public School reported in MLJ (1997) J & K 71 in which it has been held that the AWES is not an instrumentality of the State under Article 12 of the Constitution. Mr. Choudhury cited a decision of the Jammu & Kashmir High Court in Mrs Asha Khosa vs. Chairman, Army Public School reported in MLJ (1997) J & K 71 in which it has been held that the AWES is not an instrumentality of the State under Article 12 of the Constitution. He also relied on the decision of a Division Bench of this Court in Managing Committee, Silchar Medical Collegiate vs. Devi Pada Bhattacharjee & others, reported in (1994) 1GLR 202 (1993 (2) GLJ 312) in which the Court held that although a private educational institution performs public duty in so far as imparting of education is concerned, it may not discharge public duty in other matters and if the right of the employees in such an institution is purely of private character, the management performs no public duty in that regard and no Mandamus can be issued to the management for enforcement of a private right of an employee. Mr. Choudhury cited the decision of the Supreme Court in IRDA vs. Ram Pyare Pandey reported in (1995) Supp 2 SCC 495 for his submission that relationship between a registered society and its employee being contractual and purely one of master and servant, relief of reinstatement cannot be granted by a writ of Mandamus. According to Mr. Choudhury, therefore, the writ petitions filed by the petitioners were not maintainable and were liable to be dismissed. On merits, Mr. Choudhury submitted that in the present cases all the petitioners were probationers and their services have not been confirmed, and thus the authorities of the school were fully within their powers to terminate the services of the petitioner if they found mat their performances were not satisfactory. He submitted that the impugned notices of termination would show that the performance analysis was made and only after it was found on such analysis that the performances of the petitioners were not satisfactory, the services of the petitioners were terminated. He has also produced in Court the reports of the said performance analysis of the services of the petitioners. 8. In Ms. Asha Khosa v. Chairman, Army Public School (supra), the High Court of Jammu & Kashmir held that AWES is not an instrumentality of the State under Article 12 of the Constitution. He has also produced in Court the reports of the said performance analysis of the services of the petitioners. 8. In Ms. Asha Khosa v. Chairman, Army Public School (supra), the High Court of Jammu & Kashmir held that AWES is not an instrumentality of the State under Article 12 of the Constitution. But it has been held in Andi Mukta SMVSSJMS Trust vs. VR Rudani (supra) and in Unnikrishnan vs. State of AP (supra) by the Supreme Court that even where an authority is not an instrumentality of the State within the meaning of Article 12 of the Constitution, a writ of Mandamus can be issued to such an authority for performing a public duty because under Article 226 of the Constitution a writ or a direction can be issue to any person or authority'. In paragraph 13 and 14 of the judgment in Andi Mukta SMVSSJMS Trust vs. VR Rudani, however, the Supreme Court observed : “13 .The decision in Vaish Degree College was followed in Deepak Kumar Biswas case. There again a dismissed Lecturer of a private college was seeking reinstatement in service. The Court refused to grant the relief although it was found that dismissal was wrongful. This Court instead granted substantial monetary benefits to the Lecturer. This appears to be the preponderant judicial opinion because of the common law principle that a service contract cannot be specifically enforced. 14. But here the facts are quite different and therefore, we need not go thus far. There is no plea for specific performance of contractual service. The respondents are not seeking a declaration that they be continued in service. They are not asking for Mandamus to put them back into the college. They are claiming only the terminal benefits and arrears of salary payable to them. The question is whether the trust can be compelled to pay by a writ of Mandamus ?” It is clear from the aforesaid observations of the Supreme Court, that no Mandamus can be issued for reinstatement of an employee in service but a direction can be issued to pay the terminal benefits and the arrears of salary payable to the employee of a public body. In paragraph 15 of the said judgment of the Supreme Court, it has been clarified that if the rights are purely of private character or if the management of the college is purely a private body with no public duty, Mandamus will not lie. 9. The aforesaid judgment of the Supreme Court in Andi Mukta SMVSS J M S Trust vs. VR Rodani (supra) was considered by a Division Bench of this Court in Silchar Collegiate School vs. Devipada Bhattacharjee (supra) and it was held in paragraph 12 of the judgment of the Division Bench. Although a private educational institution performs public duty in so far as imparting of education is concerned, it may not discharge public duty in other matters. The present case is purely of a private institution, and the management of the school is also a private body. Therefore, if the right of the employees in this school is purely of a private character, the management performs no public duty in this regard. The petitioner is an employee of a private body. He is not a civil servant nor a workman under the industrial law. This being the position, if the petitioner is directed to be reinstated in service it would be against the preponderant judicial pronouncement of the Court that a service contract cannot be specifically enforced. Therefore, the alleged right of the petitioner in this case is of a private character, and no Mandamus can issue and no petition for Mandamus will lie.” Thus a Division Bench of this Court has held in the aforesaid case that if the rights of the employee in the school is purely of a private character, the management performs no public duty in that regard and the employee of the school cannot be reinstated in service by direction of the Court as such reinstatement will amount to specific enforcement of a service contract. 10. In Unni Krishnan vs. State of AP (supra), the Supreme Court was not considering a case of an employee seeking reinstatement in service but was considering admissions to Private Medical and Engineering Colleges in the country. In IRDA vs. Ram Pyare Pandey (supra) cited by Mr. 10. In Unni Krishnan vs. State of AP (supra), the Supreme Court was not considering a case of an employee seeking reinstatement in service but was considering admissions to Private Medical and Engineering Colleges in the country. In IRDA vs. Ram Pyare Pandey (supra) cited by Mr. Choudhury, on the other hand, the Supreme Court considered the question as to whether relief of reinstatement of an employee of a body registered under the Societies Registration Act can be granted and the Supreme Court quoted an earlier judgment of a three member Bench of a Supreme Court in Nandganj Sihori Sugar Co Ltd, Rae Bareli vs. Badri Nath Dixit, (1991) 3 SCC 54 , which laid down the law on the point in the following words: “A contract of employment cannot ordinarily be enforced by or against an employer. The remedy is to sue for damages (see section 14 read with section 41 of the Specific Relief Act; see Indian Contract and Specific Relief Acts by Poolock and Mulla, 10th Edn, page 983). The grant of specific performance is purely discretionary and must be refused when not warranted by the ends of justice. Such relief can be granted only on sound legal principles. In the absence of any statutory requirement, Courts do not ordinarily force an employer to recruit or retain in service an employee it not required by the employer. There are, of course certain exceptions to this rule, such as in the case of a public servant dismissed from service in contravention of Article 311 the Constitution; reinstatement of a dismissed worker under the Industrial Law, a statutory body acting in breach of statutory obligation and the like (SR Tewari vs. District Board, Agra, Executive Committee of UP Warehousing Corpn vs. Chandra Kiran Tyagi, Executive Committee of Vaish Degree College, Shamli vs Lakshmi Narain, see Halsbury's Laws of England, 4th Edn. Vol 44, para 405 to 420).” After quoting the aforesaid judgment, the Supreme Court held in the case of IRDA vs. Ram Pyare Pandey that by affording the relief of reinstatement, the Court will, in fact, be granting specific performance of contracts of service, which can be done only in the exceptional or rare cases referred to in the judgment 3 of the Supreme Court in Nandganj Sihori Sugar Co Ltd, Rae Bareli vs.Badri Nath Dixit.” 11. Thus, the law is now settled by the Apex Court and a Division Bench of this Court that in the absence of statutory requirement the contract of employmente cannot ordinarily be enforced against an employer and the remedy is to sue for damages. The exceptions to the aforesaid rule are the case of public servant dismissed from service in contravention of Article 311 of the Constitution, reinstatement of a dismissed worker under the Industrial Law, a statutory body acting in breach of statutory obligations. In the present case, the petitioners have not made out a case that by any statutory requirement, they were to continue in service. No case also has been.made out that they hold civil posts under the State or the Union and that they have been terminated from service in contravention to Article 311 of the Constitution. These cases are also not the a cases of workers under Industrial Law. The AWES or Army School Narengi are also not statutory bodies created by the statute. The case of the petitioners, therefore, do not fall within the exceptions laid down in the judgment of the Supreme Court in Nandganj Sihori Co Ltd, Rae Bareli vs. Badri Nath Dixit. If, therefore, the employer does not want the services of the petitioners any longer the Court cannot grant specific enforcement of the contracts of the service ^ between the petitioners and AWES or the Army School, Narengi by quashing the impugned notices terminating their services. 12. In the result, the writ petitions are dismissed and the interim orders passed by this Court in all the cases are vacated. But considering the facts and circumstances of the case, the parties shall bear their own cost.