Article 12 of the Constitution – whether applicable to Private Institutions or not and questions regarding maintainability of writ under Article 226 Dr. Ranjan Dhar, Kingston Law College Legal Article Thu, Jul 04, 2019, at ,11:05 AM Brief case study: The petitioner, Dr. Sankar Prasad Mukherjee was an Emeritus Professor of the Hooghly Engineering and Technology College (Respondent) established under the West Bengal University of Technology Act, 2000 and also governed by the Hooghly Engineering and Technology College Society (HETCS) (Respondent). The petitioner was also officiated as Secretary of the Society which runs the College. On 26th September, 2017 a show-cause notice has been issued to the petitioner by the person who was officiating as Principal of the College, the order of suspension dated 3rd October 2017 and a decision forming a three-member inquiry committee dated 26th September 2017 to look into the purported charges leveled in the show cause issued by the respondent and the report of the inquiry committee came on 27th October, 2017 and this report allowed the petitioner to resume his duties as an Emeritus Professor. On 30th October 2017, the petitioner had been removed from the post of Secretary of the Society (HETCS). The termination letter from the post of Emeritus Professor had been issued and addressed to the petitioner by the Secretary of HETCS on 23rd March 2018. The Secretary of the society is also one of the respondents in this case. The termination of the petitioner imposed with immediate effect and one month's advance salary of Rs.40,000/- (Rupees Forty Thousand) only, in lieu of one month's notice was credited in the petitioner's account. The cause of action, in this case, was the date on which the show cause notice has been served to the petitioner and Prayer of the Petitioner: The petition has the following grounds: To set aside and quashing of the show cause notice dated 26th September 2017, and To set aside the order of suspension dated 3rd October 2017, and The petitioner challenged the decision of forming a three-member inquiry committee dated 26th September 2017 to look into the purported charges leveled in the show cause notice, and The petitioner also challenged the report of the purported inquiry committee dated 27th October 2017, and The Petitioner prayed to the Honourable Court, to allow him to resume his duties in the post in question. Arguments of the Petitioner’s Lawyer: The petitioner’s lawyer’s arguments are as follows: The learned Advocate appears on behalf of the petitioner and submits that his client has challenged both the termination notice served on him on 23rd March 2018 and prayed for quashing of the show-cause notice served on 26th September 2017 and order of suspension dated 3rd October 2017. The learned Advocate of the petitioner refers to Hooghly Engineering and Technology College Service, Leave and Conduct Rules which undisputedly mentions that the Society shall be authorized to form an Enquiry Committee or delegate the powers to Member Secretary for the purpose of administering said rules or for ordering an inquiry to award punishment/penalties. The issuance of show cause notice to the petitioner had been done with gross violation of the Rules mentioned above in 2. Because the petitioner is holding the post of Secretary of the Society (HETCS) as on 26th September 2017. The purported disciplinary action is supposed to be void-ab-initio, and the petitioner did not participate in the purported inquiry. The proceedings culminated in order of termination also impugned. The petitioner also seeks interim order pending adjudication. Petitioner's submission regarding the procedure of issuance of the show-cause notice initiating disciplinary proceedings appears, prima facie, since it had been done in violation of clause 1 of procedures provided in the Rules. It appears from disclosures of minutes of proceedings held by the inquiry committee, in which said respondent was Chairman and Convenor, three settings of such committee were held, in none of which petitioner appeared. The report of the 3rd sitting had been submitted to the Principal of the college on 27th October 2017. It appeared from the above extract from minutes of that meeting, the committee said it had not conducted any inquiry The interim order passed on 5th July 2018, restoring petitioner to be under suspension because the suit had been filed after issuance of termination letter. Arguments of the Respondent’s Lawyer: The respondent’s lawyer’s arguments are as follows: The learned advocate appears on behalf of the Secretary referred to clause 5.6 of the rules and states that the Secretary of the College shall be appointing authority and his client being Secretary had issued a termination letter. Thus appointing authority had issued the termination; A private body is not amenable to the writ under Article 226; A private institution and having not been financed by the State it does not come within the purview of Article 12 of the Constitution and the writ proceeding is not maintainable. Questions raised in arguments: This case stands upon a few fundamental questions on law: The legality of the procedures followed by the authority in cases of a) issuance of show-cause notice, b) issuance and effect of the order of suspension; c) issuance and effect of the order of termination. Maintainability of the writ petition under Article 226. Status of the college/institution under Article 12. The judgment of Calcutta High Court under Sahidullah Munshi, J: The judgment of the Calcutta High Court came on 16th May 2019. While imparting judgment the High Court at Calcutta has the following observations: Regarding the question of maintainability of the writ petition raised by the learned Advocate on behalf of the Secretary of HETCS and he cited Andi Mukta Sadguru Shree Muktarjee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Ors. - Vs. - V.R. Rudani and Ors. reported in (1989)2 SCC 691 case to question the maintainability of the writ. In that case, the Hon'ble Supreme Court held "if the rights are pure of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions of the mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. The term 'authority' used for Article 226 in the context must receive a liberal meaning unlike the term in Article 12. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. This may apply to any other person or body performing a public duty. The relevant consideration of whether writ will lie or not against a body is the nature of the duty imposed on the body and the function being discharged by it. A private body may also be treated as an authority within the meaning of Article 226 of the Constitution if it discharges function of a public nature, whether under statutory mandate or otherwise. Therefore, the strict adherence of the rule of amenability of writ jurisdiction is not the test whether the institution is in public domain or private domain but it should be the test whether the State has got any control over such institution. In the present case, the institution is controlled by statute through University. In the present case, it has been found that the HETCS has been affiliated to the University of Health Science and provisions of the West Bengal University of Technology Act, 2000 passed by the West Bengal Legislature published in the Calcutta Gazette, Extraordinary on 20th July 2000. Undisputedly, the college is affiliated to the University namely, the Maulana Abul Kalam Azad University of Technology and the petitioner Shankar Prasad Mukherjee was the emeritus professor of the said college. There is no dispute that the college has been imparting education which is a public function in a larger field. If such institution is seen to have discharged public function at a larger field of the education with responsibility and has been affiliated to the University under the aforesaid Act of 2000, there should not be any reason to hold that the college does not come within the meaning of Article 12 of the Constitution. The respondents on behalf of the college contended that the college is not a listed Government aided institution in the list of AICTE approved institution in Engineering and Technology 'UG' 'Government-aided' for the State of West Bengal for the academic year 2018-19. The respondents contend that the institution has been listed as an unaided private institution. Therefore, it cannot come within the purview of Article 12 of the Constitution. On submission of supplementary evidences by the petitioner to the Court: a) a lease deed dated 7th October, 2004 by virtue of which the Hon'ble Governor of West Bengal granted lease of a plot of land measuring 0.342 acre in favour of the respondent college; b) a letter dated 14th February, 2006 issued by the Joint Secretary, Higher Education Department, Government of West Bengal addressed to the Director of Technical Education, Government of West Bengal informing that the Hon'ble Governor was pleased to sanction and allowed a sum of Rs.50,00,000/- to five institutions at the rate of Rs.10 lakh each to provide grants-in-aid for development of their infrastructure during the financial year 2005-06. It has been further mentioned that the said order was issued with the concurrence of the Finance Department of the State Govt. From the above disclosure it is absolutely clear that the respondent college received Government aid from the Government of West Bengal from time to time and thus there is no doubt that the said college comes within the purview of Article 12 of the Constitution and the writ petition can be held to be maintainable against any action of such college receiving Government aid. The respondent, however, contended that since there is no regular financing by the State regarding payment of salary of the teachers and staffs the institution cannot be said to a government institution. Whether or not such an institution can be said to be considered as a State within the meaning of Article 12 depends on many considerations, the prime consideration of which is whether the State Government has any manner of control over the same either financially or otherwise. It is evident from the disclosures made both by the petitioner as also the respondents that the institute comes within the purview of Article 12 at least for the reason that it discharges a 'public function' by imparting education at a larger field and this is sufficient to hold that the State has control over the institution. The learned Advocate appearing for the University while submitting that the engineering and technology college is affiliated to the University, he further submits that there are two separate bodies of any college approved by AICTE, namely, (i) Governing body of the college prescribed by AICTE and (ii) Governing body (Managing Committee) of the society, that is, the sponsoring committee, organizing body of the college as per West Bengal Societies Registration Act, 1961. The principal of the college is the member secretary of the governing body of the college, also claimed to be the member secretary of the Managing Committee (Governing Body) of the society (HETCS). During enquiry, he was asked to produce papers in support of his claim as member secretary of Hooghly Engineering and Technology College Society (HETCS) but he failed to produce the same. He also failed to produce any valid report of the inquiry committee recommendation to take any adverse action against the petitioner. So, the actions taken by the Principal and Member Secretary of the Hooghly Engineering and Technology College Society (HETCS) are arbitrary, unwarranted and not permissible under law. The entire action of the college authority is against the settled principles of administrative law i.e. against the principle of natural justice and so, cannot be supported. Therefore, all subsequent actions against the petitioner become a nullity. The entire disciplinary proceeding against the petitioner is unsustainable, prejudiced and a gross violation of the principle of natural justice. The order of suspension and termination were set aside by the Judge. The petitioner has been awarded that, he is entitled to his salaries considering that no proceeding has been initiated against him. Resulting thereby the petitioner is entitled to full salary from the day when he was placed under suspension.