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Judgment
K. Sampath, J.—It has been held by the Supreme Court in Dwarka Nath Vs. Income Tax Officer, Special Circle D-ward, Kanpur and Another, "that the scope of the power under Article 226 of the Constitution of India is very wide and ex-facie confers a wide power on the High Courts to remove injustice wherever found, and the High Courts can mould rules to meet the peculiar and complicated requirements of this country ".
The facts leading to the filing of the Writ petition are as follows:
The Petitioner was employed as B.T. Assistant in the Mukkulathur Higher Secondary School, Thiruverambur, Trichy-13, represented by the president and the Secretary who are repondents 2 and 3. He joined service on 17.3.1980. His services were terminated on 12.3.1982 by the third Respondent Secretary. This order was set aside by the Chief Educational Officer, Trichy in Pa. Mu. No. 10464/C4/82. The third Respondent filed an appeal to the Joint Director of Secondary Education, Madras.6. The statutory appeal was dismissed by the Joint Director of Secondary Education, the first Respondent herein by order dated 24.9.1983 in his preceedings Na. Ka. No. 377104/Secondary Education/G7/U2/82-1 confirming the original order of the Chief Educational Officer, Trichy. By the order of the first Respondent, the third Respondent was directed to pay the entire salary payable to the Writ Petitioner from the date of his illegal removal, till the date of re-instatement. The third Respondent filed a Writ Petition in W.P. No. 10537 of 1983. There was an interim stay in W.M.P. No. 16260 of 1983 from 23.12.1983 till the disposal of Writ Petition on 23.10.1991. On 23.10.1991 the Writ Petition was dismissed. Pursuant to the dismissal of the above Writ Petition, the Petitioner was re-instated in service and he took charge on 29.5.1992 as B.T. Assistant, Though he was re-instated, contrary to the orders in the Writ Petition he was not given the arrears of salary and other benefits inspire of several requests made in person to Respondents 2 and 3. A registered letter through counsel was issued on 26.8.93 calling upon them to pay the arrears. The third Respondent refused to receive the lawyer''s letter and the same was returned with the endorsement ''not found''. As on the date of filing of the writ petition, there was a sum of Rs. 2,00,907.58 due and payable by the Respondents 2 and 3 to the writ Petitioner. The writ Petitioner had been out of employment for nearly ten years on account of the high handed action of the third Respondent. He had to borrow at high rate of interest for his sustenance. There was pressure from his creditors for re-payment of amounts borrowed. There was absolutely no justification, legal or moral for non-payment of arrears. The Writ Petition had therefore been filed.
Though no counter has been filed by the contesting Respondents 2 and 3, the learned Counsel appearing for them raised the following points:
i. Mandamus did not lie against Respondents 2 and 3 Vide AIR 1963 SC 1301 Para-7. The decision in Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., will not apply to the facts of the present case.
ii. The writ Petitioner is guilty of laches and delay. No documents had been filed to explain the laches and delay.
iii. The claim of the writ Petitioner is essentially a money claim and u/s 9 of the CPC of India there is a clear bar regarding the maintainability of the writ petition.
iv. The cause of action arose on 24.9.1983. The suit should have been filed within three years thereafter and the claim in the W.P. is barred by limitation. In support the learned Counsel relied on the judgment in the State of Madhya Pradesh Vs. Bhailal Bhai and Others, .
v. There is an alternative remedy and the writ petition is therefore not maintainable. In support of this the learned Counsel relied on the Bench judgment of the Madhya Bharath High Court in Harendranath Sharma v. State of Madhya Bharath and Ors. AIR 1950 MB 46.
The details set out are not disputed. Though at one stage of the proceedings the learned Counsel for the contesting Respondents 2 and 3 asserted that there was no stay of the order of termination pending the earlier writ petition, subsequently, he had to concede that there was stay from 23.12.1983 til 23.10.1991 when the writ petition was finally disposed of.
Let us first take the question whether a Mandamus would lie against Respondents 2 and 3.
In Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V.R. Rudani and Others, the Supreme Court of India stated that
If the rights are purely 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 to mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied...public money paid as government aid plays a major role in the control, maintenance and working of educational institutions. The added institutions like government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University, their activities are closely supervised by the University authorities. Employment in such institutions therefore, is not devoid of any public character. So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are. Therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duly relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party. The law relating to madamus has made the most spectacular advance. It may be recalled that the remedy by prerogative writs in England started with very limited scope and suffered from many procedural disadvantages... There, however, the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty. The ''public authority'' for them mean every body which is created by statue---and whose powers and duties are defined by statue. So government departments, local authorities, police authorities, and statutory undertakings and corporations, are all ''public authorities''. But there is no such limitation for our High Courts to issue the writ ''in the nature of mandamus''. Article confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English Law. Under Article 226, writs can be issued to "any person or authority". It can be issued "for the enforcement of any of the fundamental rights and for any other purpose.
The learned Counsel relied on paragraph-7 of the judgment of the Supreme Court in The Praga Tools Corporation Vs. Shri C.A. Imanual and Others, in which the Supreme Court stated that "a mandamus can issue against a person or body to carry out the duty placed on them by the statutes even though they are not public officials or statutory body". It was observed in that case as follows:
It is however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public responsibilities (Cf. Halstury''s Laws of England (3rd Ed.,) Vol II, P.52 and onwards)
Processor De. Smith in his book "Judicial Review on Administrative Action" commenting on the development of this law of mandamus has stated as follows:
To be enforceable by mandamus a public duty does not necessarily had to be one imposed by status, imposed by treaty, charter, common law, custom or even contract.
As already stated mandamus is a very wide remedy which is to be easily available to reach injustice whereever it is found. Technicalities should not come in the way of granting that relief under Article 226 of the Constitution of India.
In Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., the judgment of the Supreme Court of India in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V.R. Rudani and Others, case was referred to and approved and in paragraph 79 (judgment of S. Mohan, J) it is stated as follows:
The meaning of authority under Article 226 came to be laid down distinguishing the same terms from Article 12. Inspite of it, if the emphasis is on the nature of duty on the same principle it has to be held that these educational institutions discharge public duties. Irrespective of the educational institutions receiving aid it should be held that it is a public duty. The absence of aid does not detract from the nature of duty.
In view of the discussion above, it does not lie in the mouth of Respondents 2 and 3 to contend that no mandamus would lie.
Admittedly, the school is an aided institution. It is therefore not open to Respondents 2 and 3 to contend that they are not amenable to writ jurisdiction under Article 226 of the Constitution.
By order dated 24.9.1983, the Joint Director of Secondary Education, the first Respondent herein, after rejecting the appeal filed by that third Respondent held that within 15 days of the receipt of the proceedings the writ Petitioner should be reinstated and he should be paid the salary and other benefits, without claiming the same from the Government. Against this order the third Respondent filed a writ petition No. 10537 of 1983 and as already stated obtained interim stay, which was in force till the disposal of the writ petition on 23.10.1991. The said writ petition was dismissed. By such dismissal the third Respondent was required to implement the order of the first Respondent, which was in the nature of a direction to the third Respondent. The third Respondent implemented the order in party by reinstating the Petitioner. So far, as the part relating to payment of salary and other benefits, the Petitioner was entitled to the third Respondent did not comply with the order. To enforce that order for payment the present writ petition has been filed.
It is represented by Mr. S. Pichai, learned Counsel for the writ Petitioner that a contempt application was filed and the same was withdrawn for the reason that after the disposal of the writ petition, dismissing the case of the third Respondent, contempt was not maintainable.
The present writ petition is more in the nature of an Execution Petition and the second and the third Respondents cannot escape from the liability on the ground of limitation. Absolutely, no quarrel over the proposition that the period of limitation for claiming any money due is three years. It has been held by the Constitution Bench of the Supreme Court in State of Madhya Pradesh Vs. Bhailal Bhai and Others, .
The provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. However, the maximum period fixed by the Legislature as the time within which the relief by a suit in a Civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in speaking remedy under Article 226 can be measured. The Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a Civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable.
Relying on the above passage, the learned Counsel for Respondents 2 and 3 contended that the cause of action arose in this case soon after the dismissal of the writ petition by the High Court on 23.10.91 and the Petitioner had not made any claim for arrears of salary and other benefits within a period of three years there from and hence, the writ petition was liable to be dismissed.
The learned Counsel for Respondents 2 and 3 further submitted that the claim is for money and it is of civil nature and therefore it is barred. According to the learned Counsel the Petitioner is also guilty of laches and delay.
The learned Counsel relied on the judgment of the Madhya Bharat High Court in Harendranath Sharma v. State of Madhya Bharat and Ors. AIR (37) 1950 MB 46. It is stated in paragraphs 15 and 16 of the judgment as follows:
There is no doubt ample authority for saying that a Court would be bathe to make an order of mandamus or certirorari where there is an alternative remedy which is equally appropriate and convenient, unless there has been denial of natural justice.
In my view this decision has no application to the facts of the present case. The claim was for reinstatement with back wages. Petitioner''s services were terminated on 12.3.1982. The order of removal was set aside on 21.11.1982. The statutory appeal was dismissed on 24.9.1983. From 23.12.1983 to 23.10.1991 there was stay. The ultimate direction by the Appellate Authority namely, the first Respondent was to reinstate with backwages and other benefits. This was inplemented partially. As rightly contended by Mr. S. Pichai, the learned Counsel for the Petitioner, the order of the Joint Director has to be read into the order passed in the Writ Petition. None of the decisions relied on by the learned Counsel for Respondents 2 and 3 is of any help to Respondents 2 and 3.
In this connection the learned Counsel for the Petitioner brought to my notice the judgment of Mr. Kanakaraj, J. in W.P. No. 14930 of 1992 dated 6.12.1994. In almost identical circumstances there was a direction given by the learned Judge to the second Respondent/management in that case, to implement the order of the Tribunal adopting the same as the direction of the High Court. The learned Judge in the course of giving such directions observed as follows:
In the event of the second Respondent not obeying the directions of this Court, there will be sufficient remedies and this Court knows how to take care of such a situation. One thing the second Respondent must bear in mind, is that they are subject to the Rule of Law and if lawful orders are not obeyed, this Court is not without any remedy and the arm of justice can extend to any length. There is no use of lamenting upon the consequences, at a later stage, if the second Respondent continues to disobey the order of lawful authorities. It is in this view of the matter, I give below the following directions.
In the above matter the second Respondent/management was directed to obey without any further default, certain conditions imposed regarding reinstatement and payment of salary and other emoluments due to the employees in that case.
This judgment of the learned judge was confirmed by the First Bench in W.A. No. 107 of 1995 on 13.2.1995. While dismissing the writ appeal the bench observed as follows:
It is unfortunate that the direction issued by the Tribunal has not so far been implemented and it had become necessary for the party to approach this Court in W.P. No. 14930 of 1992 to enforce the order of the Tribunal. We may also mention that the order of the Tribunal has been confirmed by this Court in the Writ Petition and also by the Appellate Bench in the Writ Appeal. It is submitted at the Bar that the Tamil Nadu Private Colleges (Regulation) Act, 1976 does not contain any provision for the mode and the forum of execution of the orders passed by the Private Colleges Appellate Tribunal, which is presided over by a Senior District Judge. Normally, whenever a special enactment confers jurisdiction on an authority or a Tribunal, mode and forum of execution of the orders passed by such authority or Tribunal is also provided in the Act itself. It is hightime for the State Government to take note of the case on hand and immediately take necessary steps to amend the Act in Question appropriately so as to provide the mode and the forum of execution of the orders passed by the Private Colleges Appellate Tribunal. As the said Tribunal is presided over by a Senior District Judge, we are of the view that the orders passed by the Tribunal can be made executable by appropriate amendments effected to the Act as if it is a decree passed by the civil court or the very same Tribunal may be empowered to execute the order.
The case was taken to the Supreme Court and the Supreme Court by its order dated 11.7.1995 refused to interfere with the order of the High Court. The Supreme Court specifically directed the management to implement the order within a period of two months therefrom.
As already stated what is prayed for is not a decree for money. What is prayed is execution of the order for reinstatement and payment of salary and emoluments. None of the contentions raised by the learned Counsel for Respondents 2 and 3 is sustained. The writ petition will stand allowed and a direction will issue to Respondents 2 and 3 to pay whatever amount is due to the writ Petitioner within two months from today. It is not necessary to administer any warning to Respondents 2 and 3 on the lines of what Justice Kanakaraj stated in the judgment already referred, to. The writ petition is allowed with costs of Rs. 3,000/- Consequently W.M.P. No. 1202 of 1995 is closed.