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2021 DIGILAW 1213 (GUJ)

BHAVIK S/O ATULBHAI SONEJI v. INDUS UNIVERSITY

2021-12-15

NIKHIL S.KARIEL

body2021
ORDER : 1. Heard learned Advocate Mr. Subramaniam Iyer with learned Advocate Mr. Vinod Pandya for the petitioners and learned Senior Advocate Mr. Anshin Desai with learned Advocate Mr. Parth Contractor for the respondents. At the outset learned Advocate Mr. Iyer would submit, that under instructions of petitioners of Special Civil Application No. 15094 of 2020, that the petitioner does not seek to contest the petition and therefore he may be permitted to withdraw the same. Permission granted, Special Civil Application No. 15094 of 2020 is disposed of as withdrawn. 2. Since all the petitions raise a similar issue and since the preliminary objection which has been raised by the learned Counsel appearing on behalf of the respondent University being the same, this Court proposes to dispose of all the Writ Petitions by way of a common order. Facts of Special Civil Application No. 15098 of 2020 are taken for limited purpose of deciding the entire group. 2.1. The petitioner in Special Civil Application No. 15098 of 2020 has sought for following prayers. “(A) That the Honorable Court be pleased to admit and allow this petition. (B) That the Honorable Court be pleased to issue a writ of Mandamus or any other appropriate writ or order holding that the impugned order Annexure- A (termed as show cause notice cum intimation in respect to termination of service as Asst. Professor) dated 30-10-2020 is absolutely illegal arbitrary, and violative of Article 14 & 16 of the Constitution of India and consequently, quash and set aside the same and further restrain the respondents from terminating services of the petitioner. (C) Pending admission and final disposal of the petition, the Hon’ble Court be pleased to stay the operation and implementation of the impugned order Annexure-A and restrain the respondents from terminating services of the petitioner. (D) Any other relief deemed fit to meet the ends of justice may be granted.” 2.2. Essentially a Writ is sought against an order of show cause cum intimation in respect to termination of service as Assistant Professor. (D) Any other relief deemed fit to meet the ends of justice may be granted.” 2.2. Essentially a Writ is sought against an order of show cause cum intimation in respect to termination of service as Assistant Professor. It would be pertinent to mention here that a total of 10 petitions have been preferred before this Court and whereas it appears that interim relief has been granted by this Court vide various orders in favour of petitioners of Special Civil Application No. 15093 of 2020, 15095 of 2020, 15097 of 2020, 15098 of 2020 and Special Civil Application No. 16605 of 2020. As far as petitioners of Special Civil Application No. 15790 of 2020, 15792 of 2020, 15793 of 2020 and 15796 of 2020, no interim relief has been granted and whereas it appears that even notice has not been issued in the said Writ Petitions. As far as matters where interim relief had been granted, the learned Advocates for the parties are ad idem that the petitioners are working with the University as of now and are receiving their salaries. As far as the group of petitions where neither notice nor interim relief has been granted by this Court, there is a dispute as regards the status of the petitioners, in as much as while the learned Senior Counsel appearing on behalf of the University contending that the services of the petitioners have been terminated from the month of January 2020, it is sought to be contended by learned Advocate Mr. Iyer on behalf of the petitioners that the petitioners have not permitted to do their work. Fact remains that from around January or April 2021, the petitioners of the said group of petitions have not been paid their salaries. 2.3. In any case since the petitions are being considered on the ground of the preliminary objection which has been raised, the aforesaid facts have been referred to clarify as regards the status of each of the petitioners and whereas the same might not have any bearing on the Writ Petition as such. 3. At the outset, learned Senior Advocate Mr. Desai on behalf of the respondents would raise a preliminary objection as regards maintainability of the present group of Writ Petitions. Learned Senior Advocate Mr. 3. At the outset, learned Senior Advocate Mr. Desai on behalf of the respondents would raise a preliminary objection as regards maintainability of the present group of Writ Petitions. Learned Senior Advocate Mr. Desai would draw the attention of this Court to a decision of learned Co-ordinate Bench of this Court in Special Civil Application No. 4238 of 2020 dated 13.08.2020, by way of which judgment, in case of a dispute between an employee and the very same respondent University as regards termination of services of the petitioners therein. Learned Co-ordinate Bench has taken a view that Writ Petition against the private University would not be maintainable. 3.1. Learned Senior Advocate Mr. Desai further points out to the fact that the petitioners therein had challenged the decision of the learned Co-ordinate Bench before Honorable Division Bench by preferring Letters Patent Appeal No. 462 of 2020 and whereas vide an order dated 02.09.2020 Honorable Division Bench, while admitting the Letters Patent Appeal had clarified that the appeal is admitted only for consideration of question regarding discrepancies in the reading of provisions contained in Sections 14 & 15 and their sub sections of the Gujarat State Private Universities Act, 2009. 3.2. Learned Senior Advocate Mr. Desai would submit that since the admission of the Letters Patent Appeal was on a limited aspect, it could well be construed that the judgment of the Learned Single Judge in so far as the said judgment declares a Writ Petition against a private University not being maintainable, having not been interfered with at the interim stage by the Honorable Division Bench. 3.3. Learned Senior Advocate therefore would submit that having regard to the observations and conclusions arrived at by the learned Single Judge in case of a Writ Petition as regards the very University, more particularly since the decision being of a Co-ordinate Bench, the same would be binding on this Court and therefore it is submitted that Writ Petitions may be dismissed by this Court on the ground of the same not being maintainable. 4. As against the same learned Advocate Mr. Iyer on behalf of the petitioners would vehemently oppose such a submission and would submit that the learned Co-ordinate Bench while passing the judgment dated 13.08.2020 had not considered a decision of the Honorable Apex Court in case of Janet Jeypaul Vs SRM University and others, reported at 2015 (16 SSC) Page. 4. As against the same learned Advocate Mr. Iyer on behalf of the petitioners would vehemently oppose such a submission and would submit that the learned Co-ordinate Bench while passing the judgment dated 13.08.2020 had not considered a decision of the Honorable Apex Court in case of Janet Jeypaul Vs SRM University and others, reported at 2015 (16 SSC) Page. No. 530. Learned Advocate Mr. Iyer would submit that the Honorable Supreme Court in the said decision has inter alia held that imparting of education by a Deemed University is discharging of a public function and whereas under such circumstances the University is an authority within the meaning of Article 12 of the Constitution and hence a Writ Petition invoking jurisdiction of this Court under Article 226 of the Constitution of India against such a University would be maintainable. Learned Advocate Mr. Iyer would submit that since the learned Co-ordinate Bench, had not considered a binding judgment of the Honorable Supreme Court, which was squarely applicable on the facts of the case therefore the decision of the learned Co-ordinate Bench may not be considered as binding upon this Court. 5. As against such a submission, learned Senior Advocate Mr. Desai would submit that while the Honorable Supreme Court in case of Janet Jeypaul has held that since an institution imparting education is held to be discharging public function, in the judgment of K. K. Saksena Vs International Commission on Irrigation and Drainage and others reported in 2015 (4 SCC) page no. 670, relied upon by the learned Co-ordinate Bench, the Hon’ble Apex Court has made a slight distinction in so far as maintainability of Writ even in case of a body discharging public function in as much as according to learned Senior Advocate even if the body is said to be discharging a public function, the Honorable Supreme Court in case of K. K. Saksena (Supra) has held that if there is no public law element involved, then for enforcement of private contract of service, a Writ Petition would not lie. Learned Senior Advocate Mr. Learned Senior Advocate Mr. Desai would submit that since the decision of K. K. Saksena (Supra) has not been dealt with by the Hon’ble Apex Court in case of Janet Jeypaul (Supra) and therefore, the view taken by the learned Single Judge relying upon decision of K. K. Saksena (Supra) could not be termed as a view not binding on this Court. 6. This Court has heard learned Advocate Mr. Iyer as well as learned Senior Advocate Mr. Desai on the issue of preliminary objection. This Court finds at the outset that in Special Civil Application No. 4238 of 2020 vide a judgment dated 13.08.2020, a Co-ordinate Bench of this Court has clearly observed with regard to the very same University as in paragraph No. 11.1, 11.2, 11.3 and 11.4 and paragraph no. 13 and paragraph no. 14, which paragraphs are quoted herein for better appreciation. “11.1) The Supreme Court has drawn a distinction by discussing Anadi Mukta (supra) and found that even if it is a private body running substantially on State funding and a private body discharging public function or positive application of a public nature, a writ under Article 226 of the Constitution of India would be maintainable. However, what needs to be seen is, the Court spelled out two exceptions, namely, if the rights are purely of a private character, no mandamus would lie, and if the management of the college is purely a private body, a mandamus will not lie. 11.2) The Court in the facts of the case in K. K. Saksena (supra) further held that the body therein even in addition to not being a State within the meaning of Article 12, even if it carried out public functions it would not make it amenable to the writ jurisdiction of this Court. The Court held as under: "43. What follows from a minute and careful reading of the aforesaid judgments of this Court is that if a person or authority is a '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. However, we may add that even in such cases writ would not lie to enforce private law rights. There are 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. Reason is obvious. 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." 11.3) Considering the facts of the present case, particularly when the present petitioner no.2 has tried to enforce a contract of service which is in the realm of a private contract and in addition thereto by making the Petitioner No.1 of the Trust dispute as Petitioner No.1, I am inclined to hold against the petitioner. 11.4) Even in the case of State of Gujarat vs. Meghji Pethraj Shah (supra), while considering the admission to medical colleges, the Hon'ble Supreme Court did hold that when the dispute arises in the realm of a private contract, a writ petition would not be maintainable.” “13. Having held that the petition is not maintainable being a remedy under the realm of a private contract in view of the decision of the Supreme Court in the case of K.K.Saksena (supra), the Court would therefore not go further in getting into the merits of the Inquiry Committee's Report. However, what is evident also from the amendment made to the petition is that just for the sake of amending the petition and the pleadings, the order of 11.06.2020 is annexed and a prayer is added. This finding may sound harsh to the petitioners but it has to be appreciated from the context when the petition was initially moved. I have, in my earlier part of the decision, deprecated the conduct of the petitioner no.2 in joining hands in tandem with the petitioner no.1 in filing the petition and trying to settle scores of a trust dispute. I have, in my earlier part of the decision, deprecated the conduct of the petitioner no.2 in joining hands in tandem with the petitioner no.1 in filing the petition and trying to settle scores of a trust dispute. The casual and the cavalier attitude of the petitioner in just amending the petition by only adding a prayer of quashing and setting aside the order of termination without really setting out the grounds on which and how termination was bad goes to the basic tenets of pleadings. No pleading as to how the order was bad have been substantially supported in the pleadings of the petition. Extensive submissions were made over a period of time by the learned Senior Advocate Mr.Kavina as to how the petitioner's termination was bad, that it was in violation of principles of natural justice, that it was malafide, that it was against the tenets of fair play, inasmuch as, what was relied upon was complaints made and statements taken behind the back of the petitioner. These submissions cannot form a foundation to support the petitioner who casually files a petition, amends it by only adding a prayer to challenge the order of termination, particularly when he thinks it fit to fight for his cause challenging the termination in company of a trustee as petitioner No.1 and brings in disputes inter-se of a trust in between. That also supports this Court's conclusion that it is essentially a dispute in the realm of a private contract in terms of the decision of K.K.Saksena (supra). I am of the view that considering the decisions of the Apex Court as above, if at all there is an alleged arbitrary action, the same may give cause for the aggrieved person to initiate civil action before the Civil Court but in the facts of the present case not a writ petition against a private educational institution governed by the Gujarat Private Universities Act, 2009. 14. It is well settled law that powers under Article 226 of the Constitution of India are discretionary and plenary in nature and therefore unless there is no other remedy available, this court does not think it fit to issue a writ unless questions of public law arise for consideration. 14. It is well settled law that powers under Article 226 of the Constitution of India are discretionary and plenary in nature and therefore unless there is no other remedy available, this court does not think it fit to issue a writ unless questions of public law arise for consideration. In the present case, it is not a case where the petitioner seeks enforcement of any fundamental rights, or there is a failure of principles of natural justice and the orders or proceedings are neither wholly without jurisdiction or arbitrary.” 7. Perusal of the said decision more particularly the paragraphs quoted as here in above would clearly reveal that the learned Co-ordinate Bench, had inter alia relied upon decision of the Honorable Apex Court in case of K. K. Saksena (Supra) to come to the conclusion as noted here in above. 8. As far as the decision of the Hon’ble Apex Court in case of Janet Jaypaul (Supra) is concerned it clearly appears that the said decision was not placed for consideration of learned Co-ordinate Bench which was deciding Special Civil Application No. 4238 of 2020. 9. It would be pertinent to mention here that in case of Janet Jaypaul, the Honorable Apex Court has held as under paragraph no. 30. “This we say for the reasons that firstly, respondent No. 1 is engaged in imparting education in higher studies to students at large. Secondly, it is discharging "public function" by way of imparting education. Thirdly, it is notified as a "Deemed University" by the Central Government under Section 3 of the UGC Act. Fourthly, being a Deemed University, all the provisions of the UGC Act are made applicable to respondent No. 1, which inter alia provides for effective discharge of the public function - namely education for the benefit of public. Fifthly, once respondent No. 1 is declared as Deemed University" whose all functions and activities are governed by the UGC Act, alike other universities then it is an "authority" within the meaning of Article 12 of the Constitution. Lastly, once it is held to be an "authority" as provided in Article 12 then as a necessary consequence, it becomes amenable to writ jurisdiction of High Court under Article 226 of the Constitution.” 10. Lastly, once it is held to be an "authority" as provided in Article 12 then as a necessary consequence, it becomes amenable to writ jurisdiction of High Court under Article 226 of the Constitution.” 10. Furthermore, it appears that the decision in case of K. K. Saksena as relied upon by the learned Single Judge, is relied upon and followed in the later decision of the Honorable Apex Court in case of a later decision in case of Ramkrishna Mission and others Vs. Kago Kunya and others reported in 2019 (16 SCC) Page No. 303. In case of Ramkrishna Mission the Hon’ble Apex Court has held as thus paragraph no. 29, 30, 31 and 32. “29) More recently in K K Saksena vs. International Commission on Irrigation and Drainage, another two judge Bench of this Court held that a writ would not lie to enforce purely private law rights. Consequently, even if a body is performing a public duty and is amenable to the exercise of writ jurisdiction, all its decisions would not be subject to judicial review. The Court held thus: (SCC p. 692. para 43) “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.” 30. 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.” 30. Thus, even if the body discharges a public function in a wider sense, there is no public law element involved in the enforcement of a private contract of service. 31. Having analyzed the circumstances which were relied upon by the State of Arunachal Pradesh, we are of the view that in running the hospital, Ramakrishna Mission does not discharge a public function. Undoubtedly, the hospital is in receipt of some element of grant. The grants which are received by the hospital cover only a part of the expenditure. The terms of the grant do not indicate any form of governmental control in the management or day to day functioning of the hospital. The nature of the work which is rendered by Ramakrishna Mission, in general, including in relation to its activities concerning the hospital in question is purely voluntary. 32. Before an organisation can be held to discharge a public function, the function must be of a character that is closely related to functions which are performed by the State in its sovereign capacity. There is nothing on record to indicate that the hospital performs functions which are akin to those solely performed by State authorities. Medical services are provided by private as well as State entities. The character of the organisation as a public authority is dependent on the circumstances of the case. In setting up the hospital, the Mission cannot be construed as having assumed a public function. The hospital has no monopoly status conferred or mandated by law. That it was the first in the State to provide service of a particular dispensation does not make it an ‘authority’ within the meaning of Article 226. State governments provide concessional terms to a variety of organisations in order to attract them to set up establishments within the territorial jurisdiction of the State. The State may encourage them as an adjunct of its social policy or the imperatives of economic development. State governments provide concessional terms to a variety of organisations in order to attract them to set up establishments within the territorial jurisdiction of the State. The State may encourage them as an adjunct of its social policy or the imperatives of economic development. The mere fact that land had been provided on a concessional basis to the hospital would not by itself result in the conclusion that the hospital performs a public function. In the present case, the absence of state control in the management of the hospital has a significant bearing on our coming to the conclusion that the hospital does not come within the ambit of a public authority.” 11. Analysing the law laid down by the Hon’ble Apex Court in case of K. K. Saksena, Janet Jaypaul and Ramkrishna Mission (Supra) this Court finds that in all the judgments the Apex Court has clearly held that the twin test to decide whether a body concerned is formed for discharging any public function or public duty would be the relevant tests to decide whether any action of such body would be amenable to Writ Jurisdiction. That the Honorable Apex Court in case of Janet Jaypaul, had inter alia come to the conclusion that since the respondent University therein was imparting education in higher studies therefore, it was discharging a public function and hence it would be an authority within the meaning of Article 12 of the Constitution of India and therefore as a necessary consequence it would become amenable to Writ Jurisdiction of the High Court under Article- 226. 12. On the other hand, the decision of K. K. Saksena (Supra) which is referred to and relied upon in decision of Ramkrishna Mission (Supra), the Hon’ble Apex Court has made a distinction, in as much as the Honorable Supreme Court has held that even if the body discharges a public function in a wider sense, but there is no public law element involved in enforcement of a private law rights. 13. In case of Ramkrishna Mission (Supra), the Hon’ble Apex Court relying upon judgment of K. K. Saksena (Supra) has explained the issue as regards maintainability of Writ Petitions against a person or authority which is “State” within the meaning of Article 12 of the Constitution of India. 13. In case of Ramkrishna Mission (Supra), the Hon’ble Apex Court relying upon judgment of K. K. Saksena (Supra) has explained the issue as regards maintainability of Writ Petitions against a person or authority which is “State” within the meaning of Article 12 of the Constitution of India. That as per the dictum of the Hon’ble Apex Court even if the authority concerned is a “State” than also a Writ would not lie to enforce private law rights. Thus apart from the nature of functions of the person or authority concerned which would be required to be considered to come to a conclusion as to whether the person or authority is a ‘State’ within the meaning of Article 12, the nature of the dispute is also required to be appreciated to find out whether the dispute is for enforcement of private rights or has any public law element involved. A Writ would lie only if the action of the authority under challenge is in the domain of public law as against an action in the domain of private law. 14. In view of the above, the considered opinion of this Court while the Hon’ble Apex Court in Janet Jaypaul (Supra) has held that a University since it discharges public function would be a ‘State’ within the meaning of Article 12, the later decision of the Hon’ble Apex Court in Ramakrishna Mission (Supra) has set out a further requirement of the Court being satisfied about the nature of dispute. That even if the person or authority is a ‘State’ within the meaning of Article 12 of the Constitution of India yet a Writ would lie only if the Court is satisfied that the action under challenge is in the domain of public law. That a Writ in such a circumstance would not lie if the action is for enforcement of a private law right. 15. Appreciated from the perspective as above the petitioners are seeking to challenge a decision of the respondent University to terminate their services. In the considered opinion of this Court there is no element of public law involved in the said dispute. That the dispute essentially being a private dispute with regard to the service of the petitioner, in the considered opinion of this Court a Writ would not lie for enforcement of such a private right. 16. In the considered opinion of this Court there is no element of public law involved in the said dispute. That the dispute essentially being a private dispute with regard to the service of the petitioner, in the considered opinion of this Court a Writ would not lie for enforcement of such a private right. 16. In view of the discussion, analysis and reasoning as above, the present petitioners invoking jurisdiction of this Court under Article 226 of the Constitution of India are held as not being maintainable and are here by dismissed. 17. At this Stage learned Advocate Mr. Iyer would request this Court to extend the interim relief in those group of petitions where interim relief were already granted for a period of six weeks. Such a request is strongly opposed by learned Senior Advocate Mr. Desai more particularly submitting that since this Court has taken a view that petitions are not maintainable then the interim relief granted earlier may not be extended by this Court. 18. Having regard to the fact that interim relief has been continuing in favour of the petitioners of Special Civil Application No. 15093, 15095, 15097, 15098 and 16605 of 2021 for approximately one year, therefore this Court deems it appropriate to extend the interim relief granted earlier for further period of six weeks from the date of receipt of the order. In view of the order in the main Writ petitions, all Civil Applications stand disposed of.