The Judgment of the Court was as follows:
Bose, J.:— This is an application under Article 226 of the Constitution of India for a writ in the nature of mandamus, directing the respondents to forbear from giving effect to an order of dismissal dated the 10th May, 1955 and for cancellation of the said order.
2. The petitioner was appointed as a Physical Instructor in the Diamond Harbour H.E School on the 1st November 1946. By an unanimous resolution of the governing body of the school dated the 14th March, 1948 the petitioner was confirmed in the said post. On the 27th February 1949, the salary of the petitioner was raised from Rs. 40/- to Rs. 70/- per month, by an unanimous resolution of the governing body passed on that date. The petitioner has read up to the matriculation standard but he has passed the Summer School of Physical Education organised by the All Bengal Teachers, which is recognised by the government and the Board of Secondary Education, West Bengal. He also received physical training in certain other institutions, and has obtained certificates of merit from such institutions. By a notice dated the 10th May, 1955, served upon the petitioner by the Secretary, Diamond Harbour H.E School, the petitioneer was informed that his services would terminate on the 31st December, 1955. The said notice contained a resolution of the governing body which was to the following effect:
“Resolved that the non-matriculate teacher, Sri Manmatha Nath Naiya. Physical Instructor of this school be given a notice of discharge with effect from the 1st January, 1956. Resolved further that a graduate with diploma in physical education be appointed in his place with effect from 1st January, 1956.”
3. It appears that the said resolution was passed as a result of a letter, dated the 21st December, 1954, received from the Board of Secondary Education, West Bengal, which laid down certain conditions which were to be fulfilled by the Diamond Harbour H.E School in consideration of further extension of recognition of the said school for a further period of three years by the raid Secondary Board of Education. Clause (b) of the said conditions was as follows:
“The non-matric teacher should be replaced by trained graduate physical instructor.”
4. The petitioner thereafter made representations to the Secretary, Secondary Board of Education and other educational authorities as a result whereof the Secondary Board of Education wrote the letter, dated the 25th January, 1956 to the Secretary of the School stating inter alia as follows:
“I am directed to state that that the Administrator has been pleased to give Sri Naiya, the Physical Instructor of your school, the opportunity of improving his qualifications.”
5. It is alleged in the petition that the petitioner continued his services but sometime in March, 1956, the school authorities refused to treat the petitioner as an employee on the ground that the Secretary, Board of Secondary Education had subsequently informed that the order made by the Board by its letter, dated the 25th January, 1956 should be treated as cancelled. It is alleged that the Managing Committee took this step without giving the petitioner any opportunity to put his case before the Committee and without serving on the petitioner any notice calling upon the petitioner to submit any explanation before terminating his service. The case of the petitioner is that at least a year's notice should have been given to Mm to enable him to seek any employment elsewhere. The petitioner, therefore, challenges the order of dismissal as unjust, inequitable and illegal. Mr. Binayak Banerjee, learned Advocate who appears for opposite party No. 3 has raised several objections to the maintainability of this application under Article 226 of the Constitution. The first point argued by Mr. Banerjee is that although the school is an aided school, the Managing Committee of the school is a private body. So it is not a “person” or “authority” within the meaning of the expression as used in Article 226 of the Constitution. The learned Advocate has drawn my attention to the case reported in 56 C.W.N 449 (1) (Amarendra Chandra Aich v. Narendra Kumar Basu). In this case an application was made under Article 226 of the Constitution for issue of a writ in the nature of quo warranto against the members of the Managing Committee of the school known as the Chakraberia High School and it was pointed out by this court that the Managing Committee of the said school was not the creature of any Statute, but it was constituted according to the rules which had no statutory force, but which were in the nature of domestic rules governing the internal affairs of the said school. Such office held by the members of the Managing Committee was a private body. Accordingly no writ of quo warranto would lie against the members of the Managing Committee. In a case reported in 87 C.L.J 149 (2) (Carlsbad Mineral Water Mfg. Co. Ltd.…Applicant; v. H.M Jagtiani…., J. pointed out that in order that a writ of mandamus may issue it has to be established that the duties which are sought to be enforced by the issue of such a writ were duties of a public nature and it has also to be established that the duties are statutory duties or, in other words, duties performance of which is imposed by a statute (page 160). It is also clear from the decision of Derbyshire, C.J and Gentle, J. reported in A.I.R 1946 Cal. 197 (3) (Khetsidas Giridharilal v. Pratapmull Rameswar) that a writ in the nature of mandamus can issue only against persons holding public offices (page 20ft). In the case of Union of India v. Elbridge Watson (4) (56 C.W.N 232) at page 234, Banerjee, J. made the following observations:
“I do not think that section 45 (Specific Relief Act) has been repealed by Article 226 of the Constitution. The Article has enlarged the jurisdiction of this court for the issue of the writs mentioned in that Article. It should be noted that our Constitution has adopted the nomenclature of the English writs and I apprehend the English law relating to these writs must govern the issue of the writs herein, so far as they are not opposed to oar Constitution.”
6. It was further pointed out in this case that in applications under Article 226 of the Constitution, the prayers of the petitioner must be specific and precise and prayers of a vague and general nature should be discouraged.
7. It is, therefore, clear from the decisions cited above that unless the persons against whom a writ in the nature of mandamus is sought, hold offices of a public nature, the Court has no jurisdiction to issue such a writ. It appears to me, therefore, that the present petition in so far as it seeks a writ in the nature of mandamus is not maintainable.
8. The next point that has been argued by Mr. Banerjee is tnat as all the members of the managing committee or the governing body of the school, have not, been made parties to this proceeding, and it is only the Secretary and the President of the managing committee of the School, who have been impleaded as respondents in this application, the present application is defectively constituted and no relief can be given on such an application.
9. Mr. Banerjee has drawn my attention to rules 3, 4, 6 and 10 of the rules in the revised School Code which has been adopted by the Secondary Board of Education since thin Board came into existence after the passing of the West Bengal Secondary Board of Education Act, 1950. It is pointed out by Mr. Banerjee that if the writ is issued merely against the Secretary or the President of the managing committee, it may not be possible for them to carry out or give effect to the mandate of this Court in the absence of any directions on other members of the Managing committee.
10. Mr. Janah, the learned Advocate who appears on behalf of the petitioner has not been able to point out to any rule or regulation of the school or rules or regulations in the revised School Code to show that a president or a secretary of the managing committee effectively represents all the members of the committee in a legal proceeding which is instituted against the managing committee for any relief against such committee, nor has ihe learned Advocate pointed out any authority to show that the petition under Article 226 of the Constitution as framed is properly constituted even if all the members who compose the managing committee are not made parties to the proceeding. In the circumstances, it appears to me that the contention of Mr. Banerjee must be given effect to.
11. The further point that has been raised by Mr. Banerjee is that the whole object of this application under Article 226 is to enforce the performance of the obligations under a contract of service and it is pointed out that it has been repeatedly held by this court and other courts that in exercise of its jurisdiction under Article 226 of the Constitution, the court does not enforce performance of a contract or prevent the breach of an obligation under the contract. Accordingly, this court should refuse to grant the relief which has been asked for by the petitioner in this application. Mr. Banerjee has relied on a decision of J.P Mitter, J. reported in 87 C.L.J 148 at pages 158-161 (2) (Carlsbad Mineral Water Manufacturing Co. Ltd. v. H.M Jagtiani) in support of this proposition. The decision of Mitter, J. follows an earlier decision of this court reported in (3) A.I.R 1947 Cal. 307 and a decision of an English Court. Ex parte Pering (5) (1836) 4 Ad. and EL. 949 (950). It may be pointed out that this principle has also been followed by this court and other courts in subsequent cases, and therefore should be given effect to.
12. Furthermore it appears to me that the object of Article 226 of the Constitution, in spite of the very wide words of the said Article, is not to supplant the ordinary right of action or remedy provided for by the ordinary law of the land. If a suitor can get an adequate and convenient and beneficial remedy by the normal process of a suit, the High Court will not ordinarily exercise its power under Article 226 of the Constitution. In the present case the ground on which the petitioner has been sought to be discharged from his employment as Physical Instructor of the school is that the school has not sufficient fund to provide for the payment of the salary of the petitioner apart from the grant-in-aid fund from the Government. The petitioner, however, disputes this fact and his case before this court at the hearing has been that although the school has sufficient fund in its hand to provide for the emolument of the petitioner the petitioner has been wrongfully removed from the employment of the school as Assistant Physical Instructor. But this is a question which cannot be satisfactorily determined on affidavits. It is further pointed out by Mr. Janah that what the respondents Nos. 1 and 2 have stated in paragraph 13 of the affidavit filed on their behalf is that the school has no “special fund” and therefore it follows by implication that the school has got some other general fund out of which the payment of the salary of the petitioner can be made. Mr. Haider, the learned Advocate for opposite party No. 1 has on the other hand, submitted that the expression “special fund” has been used in order to distinguish it from the grant-in-aid fund which is contributed by the Government.
13. This is again a question which cannot be satisfactorily determined without taking evidence on the point. If the petitioner has really any grievance for the alleged dismissal, it is open to him to file a suit for damages for wrongful dismissal or for any other relief as he may be advised, against the members of the school committee or such other persons against whom he may wish to proceed. Such a suit would give the petitioner a complete and adequate remedy. In the case of D. Parraju v. General Manager, B.N Rly. (6) (56 C.W.N 264) it was observed by G.N Das, J-that where the parties are in dispute on several points and it would be difficult to arrive at a satisfactory conclusion on mere affidavits, the remedy by way of a suit would bo more convenient and effective. In such circumstances, the remedy by way of an application under Article 226 of the Constitution is not a proper substitute for a remedy by way of a suit. Mr. Janah has referred to a decision of the Calcutta High Court reported in 57 C.W.N 397 (7) (Atulya Kumar De v. The Director of Procurement and Supply) and also A.I.R 1956 Bom. 530 (8) (S.C Parashar v. Vasantsen Dwarkadas) and to A.I.R 1956 Raj. 110 (9) (Sher Singh v. State Of Rajasthan) in support of the proposition that the powers given under Article 226 of the Constitution are very wide and such power should be exercised in the facts and circumstances of this case. It is further pointed out by the learned Advocate that the petitioner should have been given an opportunity of a hearing before he was finally discharged from his service. It may be pointed out, however, that there is no rule or regulation to which the attention of the court has been drawn, which enjoins that in the case of a person holding the office which the petitioner does, an opportunity should be given to the petitioner before he is discharged from his service. To the case decided by the Rajasthan High Court, a Chaudhari in the employment of the Government had been dismissed from service as the Government had reason to believe that the employee in question was participating in criminal activities and accordingly it was observed in that case that some opportunity of hearing should be given when a person holding such an office is removed from such office on charges of indulgence in criminal activities or like charges. That case is, therefore, distinguishable from the facts of the present case where no charge of any criminal nature nor any charge of any delinquency or dereliction of duty is brought against the petitioner but the petitioner has been dismissed from service on the ground that the school is not in a position to pay his salary as it does not possess sufficient fund to do so and upon giving the petitioner reasonable notice of discharge
14. Mr. Janah has also drawn the attention of the court to certain amended rules of the Secondary Board of Education being rules 9 and 11 as set out at pages 442 and 445 of (1955) 25 Q.L.R (January to March, 1955) but I fail to see the relevancy of these rules so far as the questions which fall for determination in this case are concerned.
15. As in view of my findings on the points of maintainability of the present application under Article 226 this petition must fail, and inasmuch as any suit which the petitioner may be advised to file for damages for wrongful dismis-sal or other reliefs and the various questions fact which may arise for consideration in such a suit, may be prejudiced by reason of any observation made by me, in these proceedings, I refrain from expressing any opinion on the merits of this case and in that view of the matter I do not propose to go into the various questions of fact which have been raised in course of the hearing of this application. In my view, however, this petition must fail and it is accordingly dismissed.
16. The Rule is, accordingly, discharged.
17. I do not make any order as to costs in this court.
A.K.D.G