Citation Codes

Equivalent Citations

citation codes

Case Number

C.M.W.P No. 3249 of 1979

Judges

M.P Singh, J.

Acts

provisions of Section 16-G(3)(a) of U.P Intermediate Education Act
Section 16-G(3) of the U.P Intermediate Education Act.
Section 16(FF) of the U.P Intermediate Education Act
SOCIETIES REGISTRATION ACT
Indian Contract Act and Specific Relief Act
ARTICLE 226 CONSTITUTION OF INDIA
ARTICLE 12 CONSTITUTION OF INDIA
Section 16(FF).37.

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Smart Summary

Judgement Summary — M.P. Singh, J.

Factual and Procedural Background

This writ petition challenged the order of dismissal dated 9-4-1979 passed by the Committee of Management of B.G. Mission Inter College, Bhagalpur, District Deoria, a minority institution.

The petitioner had been appointed on probation on 9-7-1979 as a lecturer in Physics and was confirmed after one year. He was served with a charge-sheet dated 9-5-1978. An enquiry was held by an enquiry officer (Mr. E.J. Stevense) who submitted a report; on the basis of that report a resolution for dismissal was passed on 4-6-1979. Earlier, the District Inspector of Schools rejected a recommendation for dismissal on 19-9-1978 but ordered stoppage of one year's increment on grounds that the petitioner used unparliamentary language in his explanation. Both the petitioner and the Committee of Management had filed appeals against that order, but the Committee withdrew its appeal on the basis that the college was a minority institution and did not need approval from the District Inspector.

The Committee subsequently found that charges against the petitioner were proved, including grave insubordination, deliberate neglect of duty, temporary mis-appropriation of funds, activities amounting to criminal offence, serious indiscipline, inefficiency in teaching and acting against the interests of the institution. A fresh order of dismissal was passed on 9-4-1979 and is the subject matter of the petition.

Procedurally, this matter was initially heard by B.M. Lal, J., who reserved judgment and later released the case by a long order; later the case was placed before M.P. Singh, J. There was an irregularity reported: an order-sheet containing B.M. Lal, J.'s order was found missing from the record, and the Registrar was directed to inquire and report within three months.

The petition was amended to array the State as a party and to seek additional reliefs, including declaring the order dated 28-5-1976 (which declared the institution a minority institution) null and void and declaring Section 16(FF) of the U.P. Intermediate Education Act ultra vires the Constitution of India.

Legal Issues Presented

Whether a writ petition under Article 226 can be used to enforce a contract of personal service against the Committee of Management of a minority educational institution that is not a statutory body.
Whether the Committee of Management of the minority college is a statutory body or an authority/state within the meaning of Article 12 of the Constitution, thereby attracting writ jurisdiction.
Whether the provisions of Section 16-G(3)(a) of the U.P. Intermediate Education Act (requiring prior written approval of the District Inspector of Schools for dismissal or diminution of a teacher's emoluments) apply to the present minority institution.
Whether the petitioner is entitled to quashing of the dismissal order and mandamus for reinstatement with payment of salary/arrears.
Collateral procedural matter: the court-directed inquiry into the missing order-sheet from earlier proceedings.

Arguments of the Parties

Petitioner's Arguments

The order dated 28-5-1976 declaring the college a minority institution was passed behind the petitioner's back; he was not a party to those proceedings and hence the order was bad in law.
The provisions of Section 16-G(3) of the U.P. Intermediate Education Act apply even to minority institutions, so the dismissal procedure required prior approval by the District Inspector and compliance with Regulations 36, 37 and 40 framed under Chapter III.
The enquiry was not in accordance with law: copies of documents relied upon by the enquiry officer were not supplied to the petitioner despite repeated requests, and the report of the enquiry officer was not supplied before passing the impugned order.

Opposite Parties' Arguments

Preliminary objection: a contract of service cannot be enforced by writ under Article 226 of the Constitution of India.
The Committee of Management of a minority institution does not require approval of the District Inspector of Schools for dismissal; the District Inspector's approval is not necessary in the case of a minority institution.
Relief of reinstatement and payment of arrears of salary cannot be granted by writ in respect of a contract of employment where the employer is not a statutory or public authority.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Executive Committee, Vaish Degree College, Shamli v. Laxmi Narain ((1976) 2 SCC 58 : AIR 1976 SC 888)	Held that the Executive Committee of the Degree College was not a statutory body; affiliation or regulation by university statutes does not clothe it with statutory character.	Used to support the conclusion that the Committee of Management is not a statutory body and therefore not amenable to writ jurisdiction in the same way as a statutory authority.
Yogendra Nath Trivedi v. State of U.P. and Hari Shankar Srivastava v. State of U.P.	Earlier authority holding a Committee of Management (even if registered under Societies Registration Act) is neither a statutory body nor an authority or State under Article 12.	Relied upon to reinforce that the Committee of Management is not an Article 12 authority and writ against it is not maintainable.
Agarwal Digambar Jain Samiti v. Badri Prasad Srivastava	Similar earlier view that a managing committee is not statutory in character.	Referred to as a supporting precedent confirming the non-statutory character of such managing bodies.
Executive Committee of U.P. State Warehousing Corporation v. Chandra Kiran Tyagi	Principle that declaration to enforce a contract of personal service will normally not be granted; recognised exceptions (public servant dismissed contrary to Art. 311(2); reinstatement law by labour tribunals; statutory body breaching mandatory statutory obligation).	Applied to hold that the present Committee does not fall within the recognised exceptions and thus the petitioner is not entitled to relief under Article 226 enforcing personal service.
Indian Airlines Corporation v. Sukhdeo Rai	Affirmed the view that specific relief (reinstatement) is generally not available to enforce contracts of personal service, with similar exceptions as earlier cases.	Invoked to support the conclusion that enforcement of a contract of employment by writ is generally not permissible and exceptions do not apply here.
Sirsi Municipality v. Cecelia Kom Francis Tallis	Explained three categories of dismissal cases (pure contract, industrial law, employment by State/statutory bodies) and held that declaratory relief restoring service in pure contract cases is impermissible as it amounts to specific performance.	Relied on to distinguish types of employment and to conclude that the petitioner's case is not within categories that permit reinstatement by writ; supported refusal to grant declaratory reinstatement.
Saran Kumari Gaur v. State of U.P.	Held that Section 16-G(3)(a) of the U.P. Intermediate Education Act is not applicable to minority institutions.	Directly applied to conclude that the requirement of prior approval of the District Inspector of Schools for dismissal is not applicable to the present minority institution.
Nandganj Sihori Sugar Co. Ltd. v. Badri Nath Dixit	Reiterated that a contract of employment cannot ordinarily be enforced by specific relief; remedy is damages, subject to certain exceptions.	Used to support the court's view that the petitioner must resort to a suit for damages and that writ relief for reinstatement is not ordinarily available.
Kayastha Pathshala Allahabad v. Rajendra Prasad; State of U.P. v. Rajendra Prasad	Held that reinstatement may be unjustified where the person has been out of service for a long time, has joined another profession and lost touch with teaching; damages may be appropriate instead.	Applied by analogy to note that the petitioner had been out of service for many years and likely lacked current competence in the technical subject; the court noted this as a factor against reinstatement (though it did not dismiss solely on this ground).
Francis John v. Director of Education	Held that if a school receives grant-in-aid and the order is passed by the Director of Education, the petition against termination may be maintainable.	Distinguished from the present case: the present order was passed by a Committee of Management (non-statutory), so the principle in Francis John was held inapplicable.
Anadi Mukta Sadguru Shri Muktejee Vandasjiswami Suvarna Jayanti Mahotsave Smarak Trust v. V.R. Rudani	Held that mandamus will not lie to enforce rights that are purely private in character; if management is a private body with no public duty, mandamus is not available.	Invoked to support the conclusion that the writ of mandamus is not available against a purely private management, and that the petitioner's rights were essentially private requiring suit for damages.

Court's Reasoning and Analysis

The court proceeded in distinct stages:

Procedural irregularity recorded: the court noted disturbing facts about earlier proceedings (missing order-sheet from B.M. Lal, J.'s file) and directed the Registrar to inquire and report within three months.
Characterisation of the institution: the court examined whether the College was a minority institution and whether the Committee of Management was a statutory body or an authority/state under Article 12. The record (including Annexure-19) showed the District Inspector's order dated 28-5-1976 declaring the institution as a minority institution. The court held the institution to be a minority institution and observed that it is not a statutory body created by statute; being governed by some statutory provisions for maintenance/administration does not impart statutory character.
Maintainability of writ under Article 226: relying on precedents (including Executive Committee Vaish Degree College and related authorities), the court concluded that a Committee of Management of such a minority institution is not a statutory authority or State under Article 12, and therefore writ jurisdiction is not ordinarily available against it to enforce a contract of personal service.
Enforcement of personal service: the court applied the established principle that declaratory or mandatory relief enforcing personal service is generally not granted (Executive Committee of U.P. State Warehousing Corp. and Sirsi Municipality). The recognised exceptions (public servants dismissed contrary to Art. 311(2); industrial tribunal reinstatement; statutory body breaching mandatory statutory obligation) were considered; the court found the present Committee did not fall within any exception.
Applicability of Section 16-G(3)(a): the court reviewed Section 16-G(3)(a) (requiring prior approval by the District Inspector for dismissal/reduction/diminution) and Section 16(FF) (which saves certain provisions for minority institutions). Relying on Saran Kumari Gaur, the court held that Section 16-G(3)(a) is not applicable to minority institutions, leading to the logical conclusion that the management did not need the District Inspector's approval for dismissal.
Reinstatement and arrears: the court considered the argument for reinstatement but noted authorities (Kayastha Pathshala and others) where the court refused reinstatement after long absence and held damages more appropriate. The court observed the petitioner had been out of service since 1978 (over 15 years), likely lacking up-to-date competence in the technical subject of Physics; while noting this was a relevant factor against reinstatement, the court did not rest its dismissal solely on that ground.
Distinguishing other cases: the court distinguished Francis John (where the order was by Director of Education and the school received grant-in-aid) as inapposite because here the order was by a non-statutory Committee of Management and therefore not amenable to writ jurisdiction.
Final procedural point: the court noted the petitioner had not advanced a substantive challenge to the vires of Section 16(FF) despite amending the petition to include that relief.

Holding and Implications

Holding: The writ petition is dismissed without any order as to costs.

Implications and direct consequences:

The petitioner's challenge to the dismissal by the Committee of Management is rejected on maintainability grounds: the Committee is not a statutory authority under Article 12, and the court will not enforce a contract of personal service against such a body by writ.
The court held that Section 16-G(3)(a) of the U.P. Intermediate Education Act does not apply to the minority institution in question (relying on Saran Kumari Gaur), so the Committee did not require the District Inspector's prior written approval for dismissal.
The petitioner is not reinstated, and the court indicated that the appropriate remedy for any contractual wrong against a private/non-statutory management is a suit for damages rather than relief by writ; the plaintiff did not pursue a substantive challenge to Section 16(FF)'s vires in argument.
The court directed a separate administrative inquiry by the Registrar into the loss of the earlier order-sheet, with a report to be submitted within three months.
No broader precedent was purportedly set by this decision beyond applying and following existing authorities; the decision rests on the application of established principles to the facts before the court.

This summary is based exclusively on the contents of the provided opinion and does not add or infer facts beyond those stated by the court.

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Syed Vakil Ahmad v. Management Committee/Appointing Authority B.G.M Inter College And Others

M.P Singh, J.:— Certain disturbing facts are to be brought on record before I deal with the case on merit.

2. This case was initially heard by brother B.M Lal, J. After hearing was over the judgment was reserved. Subsequently by a long order covering about a page the case was released by him. The reason given was that the counsel for the petitioner had gone to his residence but what transpired was not brought on record. One can draw his own inference. Hon'ble B.P Jeeven Reddy, the then Chief Justice (as he then was) had nominated me to hear the matter on 10-9-1991. When the case was listed on 18-9-1991 that order sheet was on the record. It was placed before me by the learned counsel for the opposite party but since the counsel for the petitioner had sent an illness slip the case was adjourned.

3. On 25-9-1993 Sri A.S Rai, the counsel for the opposite party has filed an application, in court that papers of the case may be put under a sealed cover. The case was taken up for hearing on 29-10-1993. It was pointed out to me that the order sheet containing the order passed by B.M Lal, J. was missing from the record. Who will be interested in removing the order sheet? There is reason to believe that the petitioner has not been conducting himself fairly to get justice from this Court.

4. The Registrar is directed to make an enquiry in the matter of loss of the order-sheet from record and submit his report within three months.

5. MERIT OF THE CASE.—The petition is directed against, the order of dismissal dated 9-4-1979 passed by the Committee of Management of B.G Mission Inter College, Bhagalpur, District Deoria, which is a minority institution.

6. The petitioner was appointed on probation of 9-7-1979 as lecturer in Physics. After expiry of one year he was confirmed.

7. He committed serious irregularities in the discharge of his duties. He was served with a charge-sheet on 9-5-78. One Mr. E.J Stevense was appointed as enquiry officer. He submitted his report, on the basis of which a resolution was passed on 4-6-1979 for dismissal of the petitioner.

8. Recommendation of the Committee of Management was sent to the District Inspector of Schools for his approval. It was rejected on 19-9-1978. But he passed an order of stoppage of one year's increment on the ground that he had said unparliamentary language in the explanation submitted by him.

9. Against the said order the petitioner as well as the Committee of Management filed appeals.

10. During pendency of the appeal, the management realised that since that College was a minority institution, there was no necessity under law to obtain approval of the District Inspector of Schools as it withdrew its appeal.

11. The management found that the charges levelled against the petitioner were proved, he was found guilty of grave insubordination, deliberate neglect of duty, temporary mis-appropriation of funds, activities amounting to criminal offence, serious indiscipline, inefficiency in teaching and working against the interest of the institution. So a fresh order of dismissal was passed by the Committee of Management on 9-4-1979. The said order is under challenge.

12. The relief sought is for quashing the dismissal order and issue of writ in the nature of Mandamus commanding the opposite parties to permit the petitioner to work as lecturer in the said college and he may also be paid salary.

13. Subsequently the writ petition was amended. The State was also arrayed as a party. The relief, for declaring the order dated 28-5-1976 (by means of which the competent authority had declared the institution as minority institution) as null and void and declaring Section 16(FF) of the U.P Intermediate Education Act as ultravires the Constitution of India, were also added.

14. Heard Sri H.S.N Tripathi, on behalf of the Petitioner and Sri A.S Rai on behalf of the opposite parties.

15. The contention of learned counsel for the petitioner was that the order dated 28-5-1976 treating the aforesaid college as a minority institution was passed behind the back of the petitioner and since he was not a party in the proceedings the order was bad in law. The provisions of Section 16-G(3) of the Act are applicable even in cases of minority institutions. The enquiry was not in accordance with the law inasmuch as copies of the documents relied upon by the enquiry officer have not been supplied to him inspite of repeated requests. Even report of the Enquiry Officer was not supplied before passing the impugned order.

16. Learned counsel for the opposite parties raised a preliminary objection about the maintainability of the writ petition. According to him, a contract of service cannot be enforced under Article 226 of the Constitution of India. Secondly, the order passed by the Committee of Management of a minority institution needs no approval of the District Inspector of Schools.

17. The Scheme of Administration of the College shows that the institution is being run by the Christians and the members of the Society are only Christians. A copy of the order of the District Inspector of Schools dated 28-5-76 has been filed as Annexure-19 to the counter affidavit. It declared the institution as a minority institution.

18. This institution is not a statutory body. It has not been created by or under any statute. It is governed by certain statutory provisions for the purposes of maintenance and administration. But that by itself will not make it an institution with statutory character. The petitioner knew it from the very beginning that it was a minority institution. He had no legal right to be heard by the District Inspector of Schools while passing the order dated 28th May, 1976 declaring it as a minority institution. So this Court will proceed with the case treating the institution as a minority institution.

19. In support of the preliminary objection to the case of ((1976) 2 SCC 58 : AIR 1976 SC 888) Executive Committee Vaish Degree College Shamli v. Laxmi Narain, wherein it was held that the Executive Committee of the Degree College was not a statutory body. Merely because the College was affiliated to the Agra University or its working was regulated by the provisions of the Universities Act or the Statutes made thereunder will not clothe it with the statutory character.

20. This court also while considering this very question and after considering the earlier case in the case of Yogendra Nath Trivedi v. State of U.P, and Hari Shankar Srivastava v. State of U.P,1 held that a Committee of Management which runs an institution even if registered in accordance with the provisions of the Societies Registration Act is neither a statutory body nor creature of the Statute. It is not an authority or State within the meaning of Article 12 of the Constitution of India, hence the writ petition against such an institution is not maintainable. Practically the same view was taken earlier by this Court in the case reported in Agarwal Digambar Jain Samiti v. Badri Prasad Srivastava Srivastava,2

21. On the point of enforcement of contract of personal service the Supreme Court in the case of Executive Committee of U.P State Warehousing Corporation v. Chandra Kiran Tyagi,3 held that:

“…..No declaration to enforce a contract of personal service will be normally granted. But there are certain well recognised exceptions to this rule and they are. To grant such declaration in appropriate cases regarding (i) A public servant, who has been dismissed from service in contravention of Art. 311(2) Reinstatement Law by Labour or Industrial Tribunals (3) A statutory body when it has acted in breach of a mandatory obligation, imposed by statute.”

22. The same was the view taken in the case of Indian Airlines Corporation v. Sukhdeo Rai†. Rai.

23. In the case reported in Sirsi Municipality v. Cecelia Kom Francis Tallis, it was held that:

“The cases of dismissal of a servant fall under three broad heads, purely by contract of employment. Any breach of contract in such a case is enforced by a suit for wrongful dismissal and damages. Just as a contract of employment is not capable of specific performance similarly breach of contract of employment is not capable of founding a declaratory judgment of subsistence of employment. A declaration of unlawful termination and restoration of service in such a case of contract of employment would be indirectly an instance of specific performance of contract for personal service. Such a declaration is not permissible under the law of specific relief Act.

The second type of cases of master and servant arises under Industrial Law. Under that branch of law a servant who is wrongfully dismissed may be reinstated. This is a special provision under Industrial law. This relief is a departure from the reliefs available under the Indian Contract Act and Specific Relief Act which do not provide for reinstatement of a servant.

The third category of cases of master and servant arises in regard to the servant in the employment of the State or of other public or local authorities or bodies created under statute.”

24. Following the ratio of these cases I am of the view that the Committee of Management of the present College which is a minority institution did not fall within any of the excepted categories. So the petitioner is not entitled to any relief under Article 226 of the Constitution of India. The petition is not maintainable.

25. Next question to be considered is whether the provisions of Section 16-G(3)(a) of U.P Intermediate Education Act are applicable in the case of the petitioner. According to this section no Principal/Head-Master or teacher may be discharged or removed or dismissed from service or reduced in rank or subjected to any diminution of the emoluments or served with notice of termination except with the prior approval in writing of the District Inspector of Schools.

26. Section 16(FF) of the Act saves the application of the certain provisions for the appointment of a teacher of an Institution established and administered by a minority referred to in clause (1) of Article 30 of the Constitution.

27. Much emphasis has been laid down by the learned counsel for the petitioner that the procedure for dismissal as provided in Regulations 36, 37 and 40 framed under Chapter III of the U.P Intermediate Education Act have not been followed. According to him the order is in violation of Section 16-G(3) of the U.P Intermediate Education Act. I find no merit in the submission.

28. The application of Sec. 16-G(3)(a) to such institution has already been considered by this Court in the case of Saran Kumari Gaur v. State of U.P, and it has been held that even the provision of Section 16-G(3)(a) of the Act are not applicable. This leads a logical conclusion that the management of this minority institution is not required to obtain the approval of the District Inspector of Schools for dismissing a teacher.

29. The learned counsel for the respondent's next objection was that no writ can be issued granting prayer for re-instatement and payment of arrears of salary.

30. In the case reported in Nandganj Sihori Sugar Co. Ltd. Rai Bareili v. Badri Nath Dixit, the law laid down is that a contract of employment cannot ordinarily be enforced by or against an employer. The remedy is to sue for damages but there are certain exceptions to this Rule mentioned in the cases of Executive Committee of U.P Warehousing Corporation and Sirsi Municipality (supra). Petitioner's case does not fall within the ambit of any one of the exceptions.

31. In the case of Kayastha Pathshala Allahabad v. Rejendra Prasad, and State of U.P v. Rajendra Prasad, the opposite party who was a teacher in the College only for a few years was kept under suspension. He joined the legal profession. He was out of teaching job for the last about 25 years on account of his suspension. He lost touch with the subject which he was teaching and also the art of teaching. The Supreme Court held that the re-instatement of such person should be unjustified and uncalled for. He could be given some damages for it.

32. In the instant case also the petitioner had been out of his service since 1978. More than 15 years have passed. There is reason to believe that he must have forgotten the subject of Physics which is a technical subject and there has been a great deal of advancement in that branch of Science with which he would not be in touch. In any way he cannot be a useful teacher in physics subject now. But I am not dismissing the writ petition on this ground. It is a point which just could not be ignored by me.

33. The learned counsel for the petitioner has relied upon a decision reported in Francis John v. Director of Education,4

34. In that case it was held that if the school was receiving grant-in-aid then the petition against the termination order passed by the Director of Education was maintainable. In that case the order was passed by the Director of Education. In the instant case the order has been passed by the Committee of Management of the institution which is not a statutory body and as such the order is not amenable to the writ jurisdiction.

35. Another case referred to is reported in 5Sri Anadi Mukta Sadguru Shri Muktejee Vandasjiswami Suvarna Jayanti Mahotsave Smarak Trust v. V.R Rudani. In the case it was held that if the rights are purely of a private character no mandamus can be issued. If the management of the college is purely a private body with no public duty, mandamus will not lie. In that case the scope of writ of mandamus was considered. It was not a case of enforcement of a contract. So that law laid down in the above two cases are of no relevance.

36. Agreeing with learned counsel for the opposite parties and for the reasons given above, I am of the view that the writ petition, against the Committee of Management of an institution, which is not of statutory character is not maintainable. The remedy available to the petitioner was to file a suit for damages. The learned counsel for the petitioner has not advanced the point challenging the vires of Section 16(FF).

37. In view of the above findings no other point survives for consideration. The writ petition is hereby dismissed without any order as to costs.

Syed Vakil Ahmad v. Management Committee/Appointing Authority B.G.M Inter College And Others

Judgement Summary — M.P. Singh, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Opposite Parties' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Syed Vakil Ahmad v. Management Committee/Appointing Authority B.G.M Inter College And Others

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