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2024 DIGILAW 1061 (GUJ)

Patel Ratilal Keshavbhai v. State Of Gujarat

2024-04-30

NIKHIL S.KARIEL

body2024
ORDER : 1. Heard learned advocate Mr.Hardik Jani on behalf of the petitioners and learned Assistant Government Pleader Ms.Nidhi Vyas on behalf of the respondent – State. 2. By way of these petitions, the petitioners have sought for the following prayers:- “(A) Your Lordships may be pleased to issue an appropriate writ, order and direction to the respondents authority holding the action of respondent no.4 terminating services of the petitioners out of sudden and without following due process of law, as illegal, improper, unjust, unreasonable and contrary to the settle position of law and further be pleased to direct the respondent no.4 to absorb the petitioners – teachers in the other school institutions run by him and to pay them the salary regularly as per rule of law. Alternatively; (B) Your Lordships may be pleased to direct the respondent no.4 to pay some lumpsum compensation to each of the petitioners on account of their sudden termination from services without following due process of law. (C) Pending admission, hearing and final disposal of present petition, Your Lordships may be pleased to direct the respondents authority to decide the representation dated 12/15.04.2024 made by the petitioners in accordance with law within the stipulated time; (D) Be pleased to pass such other and further appropriate orders deem fit and proper in favour of the petitioners in the interest of justice.” 3. It is the case of the petitioners that the petitioners who are appointed as teachers in a registered private school i.e. under respondent no.4 in the year 2017, have been terminated from service in the month of April, 2023. The petitioners, by way of these petitions, challenge the said termination order. 4. At the outset, to a pointed query by this Court as to how the present petitions would be maintainable more particularly when the respondent no.4 whose action is under challenge is a private educational institution, learned advocate Mr.Jani would rely upon a decision of the Hon’ble Supreme Court in case of St.Mary’s Education Society and Anr. vs. Rajendra Prasad Bhargava and Ors., reported in 2022 LiveLaw (SC) 708. 4.1. vs. Rajendra Prasad Bhargava and Ors., reported in 2022 LiveLaw (SC) 708. 4.1. Learned advocate Mr.Jani on behalf of the petitioners would submit that the respondent no.4 could not have terminated the services of the petitioners without following the procedure under Section 36(1)(a) and (b) of the Gujarat Secondary and Higher Secondary Education Act, 1972 and Section 40(B) of the Bombay Primary Education Act, 1947 and whereas, it is submitted that since the respondents were required to follow a process laid down in the statute, violation of the same would make the decision on the part of the respondents amenable to the writ jurisdiction of this Court. 5. As against the same, learned Assistant Government Pleader Ms.Nidhi Vyas on behalf of the respondent – State would submit that neither does the Hon’ble Supreme Court in case of St. Mary’s Education Society (supra) lay down any absolute proposition that a writ could be maintainable against a decision with regard to service of the petitioners with a private educational institution and whereas it is further submitted that as such, the present petitioners have an efficacious remedy of preferring an application before the Gujarat Educational Institution Tribunal, therefore, the present petition may not be entertained. 5.1. Learned AGP Ms.Vyas would submit that there is no such shocking aspect which is brought forth to the notice of this Court which would require urgent intervention by this Court and whereas, it is submitted that entertaining such a petition would render the purpose of establishing a separate tribunal for such matters otiose. Learned AGP would submit that as such, the services of the petitioners have been terminated in or around April, 2023 as per the pleadings as stated in the petitions and whereas the petitioners, for no reason, are approaching this Court by filing these writ petitions under Article 226 of the Constitution of India. Learned AGP would submit that this Court, under such circumstances, may not interfere and may reject the writ petitions. 6. Heard learned advocates for the respective parties and perused the documents on record. Learned advocate Mr.Jani on behalf of the petitioners has, in support of his submissions, relied upon the decision of the Hon’ble Supreme Court in case of St.Mary’s Education Society (supra) submitting that a writ petition of the present nature would be maintainable. Learned advocate Mr.Jani having relied upon paragraph nos. Learned advocate Mr.Jani on behalf of the petitioners has, in support of his submissions, relied upon the decision of the Hon’ble Supreme Court in case of St.Mary’s Education Society (supra) submitting that a writ petition of the present nature would be maintainable. Learned advocate Mr.Jani having relied upon paragraph nos. 37, 41, 42, 49, 50, 51 and 68 of the said decision, the same are reproduced hereinbelow for benefit:- “37. This Court in Janet Jeyapaul v. SRM University & Ors., reported in 2015 (13) SCALE 622 , held that when a private body exercises its public functions even if it is not a State, the aggrieved person has a remedy, not only under the ordinary law, but also by way of a writ petition under Article 226 of the Constitution. In the case of Binny Ltd. (supra), this Court held that the Article 226 of the Constitution is couched in such a way that a writ of mandamus could be issued even against a private authority. However, such private authority must be discharging a public function and that the decision sought to be corrected or enforced must be in the discharge of public function. 41. In the background of the above legal position, it can be safely concluded that power of judicial review under Article 226 of the Constitution of India can be exercised by the High Court even if the body against which an action is sought is not State or an Authority or an Instrumentality of the State but there must be a public element in the action complained of. 42. A reading of the above extract shows that the decision sought to be corrected or enforced must be in the discharge of a public function. No doubt, the aims and objective of the appellant No. 1 herein is to impart education, which is a public function. However, the issue herein is with regard to the termination of service of the respondent No. 1, which is basically a service contract. A body is said to be performing a public function when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. 49. In the case on hand, the facts are similar. A body is said to be performing a public function when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. 49. In the case on hand, the facts are similar. Rule 26(1) of the Affiliation Byelaws, framed by the CBSE, provides that each school affiliated with the Board shall frame Service Rules. Subrule (2) of it provides that a service contract will be entered with each employee as per the provision in the Education Act of the State/U.T. or as given in the Appendix III, if not obligatory as per the State Education Act. These rules also provide procedures for appointments, probation, confirmation, recruitment, attendance representations, grant of leave, code of conduct, disciplinary procedure, penalties, etc. The model form of contract of service, to be executed by an employee, given in Appendix III, lays down that the service, under this agreement, will be liable to disciplinary action in accordance with the Rules and Regulations framed by the school from time to time. Only in case where the post is abolished or an employee intends to resign, Rule 31 of Affiliation Byelaws of the Board will apply. It may be noted that the above byelaws do not provide for any particular procedure for dismissal or removal of a teacher for being incorporated in the contract. Nor does the model form of contract given in the Appendix III lays down any particular procedure for that purpose. On the contrary, the disciplinary action is to be taken in accordance with the Rules and Regulations framed by the school from time to time. 50. On a plain reading of these provisions, it becomes clear that the terms and conditions mentioned in the Affiliation Byelaws may be incorporated in the contract to be entered into between the school and the employee concerned. It does not say that the terms and conditions have any legal force, until and unless they are embodied in an agreement. To put it in other words, the terms and conditions of service mentioned in the Chapter VII of the Affiliation Byelaws have no force of law. They become terms and conditions of service only by virtue of their being incorporated in the contract. Without the contract they have no vitality and can confer no legal rights. To put it in other words, the terms and conditions of service mentioned in the Chapter VII of the Affiliation Byelaws have no force of law. They become terms and conditions of service only by virtue of their being incorporated in the contract. Without the contract they have no vitality and can confer no legal rights. The terms and conditions mentioned in the Affiliation Byelaws have no efficacy, unless they are incorporated in a contract. In the absence of any statutory provisions governing the services of the employees of the school, the service of the respondent no. 1 was purely contractual. A contract of personal service cannot be enforced specifically. Therefore, the respondent no. 1 cannot find a cause of action on any breach of the law, but only on the breach of the contract. That being so, the appellant’s remedy lies elsewhere and in no case the writ is maintainable. 51. Thus, the aforesaid order passed by this Court makes it very clear that in a case of retirement and in case of termination, no public law element is involved. This Court has held that a writ under Article 226 of the Constitution against a private educational institution shall be maintainable only if a public law element is involved and if there is no public law element is involved, no writ lies. 68. We may sum up our final conclusions as under: (a) An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public. (b) Even if it be assumed that an educational institution is imparting public duty, the act complained of must have a direct nexus with the discharge of public duty. It is indisputably a public law action which confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction under Article 226 for a prerogative writ. (b) Even if it be assumed that an educational institution is imparting public duty, the act complained of must have a direct nexus with the discharge of public duty. It is indisputably a public law action which confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction under Article 226 for a prerogative writ. Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through a writ petition under Article 226. Wherever Courts have intervened in their exercise of jurisdiction under Article 226, either the service conditions were regulated by the statutory provisions or the employer had the status of “State” within the expansive definition under Article 12 or it was found that the action complained of has public law element. (c) It must be consequently held that while a body may be discharging a public function or performing a public duty and thus its actions becoming amenable to judicial review by a Constitutional Court, its employees would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by the statutory provisions. An educational institution may perform myriad functions touching various facets of public life and in the societal sphere. While such of those functions as would fall within the domain of a "public function" or "public duty" be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, the actions or decisions taken solely within the confines of an ordinary contract of service, having no statutory force or backing, cannot be recognised as being amenable to challenge under Article 226 of the Constitution. In the absence of the service conditions being controlled or governed by statutory provisions, the matter would remain in the realm of an ordinary contract of service. (d) Even if it be perceived that imparting education by private unaided the school is a public duty within the expanded expression of the term, an employee of a non-teaching staff engaged by the school for the purpose of its administration or internal management is only an agency created by it. It is immaterial whether “A” or “B” is employed by school to discharge that duty. It is immaterial whether “A” or “B” is employed by school to discharge that duty. In any case, the terms of employment of contract between a school and non- teaching staff cannot and should not be construed to be an inseparable part of the obligation to impart education. This is particularly in respect to the disciplinary proceedings that may be initiated against a particular employee. It is only where the removal of an employee of non-teaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be interfered by the court. But such interference will be on the ground of breach of law and not on the basis of interference in discharge of public duty. (e) From the pleadings in the original writ petition, it is apparent that no element of any public law is agitated or otherwise made out. In other words, the action challenged has no public element and writ of mandamus cannot be issued as the action was essentially of a private character.” 6.1. Before discussing the issue any further, apposite it would be refer to paragraph no.3 where the Hon’ble Apex Court has laid down the questions for consideration:- “3. In the present appeal, two pivotal issues fall for consideration of this Court:- (a) Whether a writ petition under Article 226 of the Constitution of India is maintainable against a private unaided minority institution? (b) Whether a service dispute in the private realm involving a private educational institution and its employee can be adjudicated in a writ petition filed under Article 226 of the Constitution? In other words, even if a body performing public duty is amenable to writ jurisdiction, are all its decisions subject to judicial review or only those decisions which have public element therein can be judicially reviewed under the writ jurisdiction?” 6.2. Question No.3(a) and 3(b) being completely corelatable to the issue on hand i.e. where an employee whose services have been terminated by a private educational institution could file a writ petition challenging the same before this Court, the conclusion at paragraph no.68 which have been reproduced hereinabove would be relevant. 6.3. Question No.3(a) and 3(b) being completely corelatable to the issue on hand i.e. where an employee whose services have been terminated by a private educational institution could file a writ petition challenging the same before this Court, the conclusion at paragraph no.68 which have been reproduced hereinabove would be relevant. 6.3. While it appears that the conclusion at paragraph no.68 lays down the general proposition i.e. for invoking Article 226 of the Constitution for issuance of a writ against a private person or a body, the essential aspect is that a person or body concerned should be discharging public duties or public function. The public duty may either be statutory or otherwise and whereas it should be shown that a person or body must owe a duty or obligation to the public involving the public law element. 6.4. Further, at paragraph no.68(b) importantly, the Hon’ble Supreme Court starts the said conclusion with the words ‘Even if it be assumed ...’. Thus, it would appear that the Hon’ble Supreme Court clearly sets out the proposition that whether an educational institution is imparting public duty or not would be an issue which is wide open, yet, even if it is assumed that educational institution is indeed imparting public duty then, it is observed that the act complained of must have a direct nexus with the discharge of public duty. Having stated so, it is further stated by the Hon’ble Supreme Court that wherever the intervention of the Courts under Article 226 was found, it was either when the service conditions were regulated by the statutory provisions or the employer had the status of ‘State’ within the expansive definition under Article 12 or it was found that the action complaint of has a public law element. 7. In the considered opinion of this Court, there could not be any quarrel with regard to the fact that the employer in the present case i.e. respondent no.2 is not a State nor does the action complained of has any public law element and whereas, the service law conditions while they are regulated by the statutory provisions, but, the issue here would be that, would the said aspect entitle the petitioners to approach this Court when a tribunal is established specifically to meet with exigencies of the present nature. 7.1. 7.1. Again, it requires to be noted that the Hon’ble Supreme Court in paragraph no.68(c) has observed that if a body would be discharging a public function and its actions are amenable to writ jurisdiction, yet, the employees may not have a right to invoke powers under Article 226 in a matter of service if they are not governed or controlled by a statutory provision. It is further observed that an educational institution may perform various function but the function may be part of a public function but may not be a public duty which would entitle a litigant to claim a right to approach this Court under Article 226 of the Constitution of India more particularly when the decision was within the ordinary contract of service. 7.2. As it is, it also appears that as far as conclusion no.68(d) is concerned, it is observed by the Hon’ble Supreme Court that if a disciplinary proceeding is initiated against an employee and the removal of an employee or a non-teaching staff is regulated by some statutory provision, then such interference will be on the ground of ‘breach of law’ and not on the basis of ‘interference in discharge of public duty’. In the considered opinion of this Court, the breach of law would require the petitioners to first approach the statutory tribunal established for remedy of such breach of law and whereas, only upon the concerned statutory tribunal having given its final decision, would the litigant be entitled to approach this Court challenging the said breach of law. Again, as noted hereinabove, it is very clear that there is no breach of discharge of public duty which would entitle the litigant to approach this Court directly. 8. In the considered opinion of this Court, the entire reading of the decision does not in any way support the submission of learned advocate for the petitioners that even if the employer is a private educational institution, yet, only on the ground that the statute requires the private educational institution to follow a procedure before terminating the services of the petitioners and on account of such non- following of procedure, the litigant would automatically get a right to approach the High Court by invoking jurisdiction under Article 226 of the Constitution of India. 8.1. 8.1. Again, as submitted by learned AGP, the issue which would require consideration is that when a statutory tribunal is established by the State for considering the disputes of such nature, how far it would be justifiable for the litigants to directly approach this Court more particularly complaining of breach of some statutory provision. 8.2. Undoubtedly, in almost all such disputes, there might be some or the other breach of some statutory provision and whereas if that aspect would be considered, then all the litigations which otherwise would have to be at the first instance agitated before the tribunal, would be required to be filed before this Court. The entire purpose of establishing a statutory tribunal to hear and decide the disputes of persons of the present category would be rendered otiose if such a proposition is permitted to stand. 9. In view of the above discussion, in the considered opinion of this Court, while the petitions not make out a case for interference under Article 226 of the Constitution of India, therefore, the same stand rejected with liberty to the petitioners to approach the learned Gujarat Education Tribunal. It is also clarified that this Court has not made any observation on the merits of the issue.