P. Pragasam vs The Union of India (UOI) and Others

Mohan, J.—The short facts leading to the writ petition are as follows:

The Petitioner was appointed as a School Assistant in the fourth Respondent''s school with effect from 1st September 1972. Admittedly, there was no order of appointment. All the appointments were made for the posts of School Assistant only on temporary basis. Till 1974, the practice was to make oral appointments and not appointments in writing. The appointment of the Petitioner continued to be temporary and no order confirming him was ever made. However, the Petitioner claims that he was certified finally on 27th November 1979 to be a permanent teacher. The following certificate was issued to the Petitioner:

This is to certify that Mr. P. Pragasam M.A., B.T., is working as a Graduate trained, whole time teacher in this High School since 1st September, 1972. He has the permission of the Management of this High School to do research work and to qualify for Ph.D. Degree in History subject in any University.

He has put in his continuous service for a total period of seven years, two months and twenty-six days as a Graduate trained whole time teacher in this High School, on this date.

He is a permanent teacher. He teaches English, History and Geography in this High School.

Signature in full: P. Jegaraj 27-11-79.

Designation : HEADMASTER,

St. Mary''s High School, Karaikal.

The fourth Respondent''s case was that the Petitioner''s conduct and behavior were not satisfactory as he was guilty of gross insubordination affecting the discipline and smooth running of the school in spite of several warnings and it was thought necessary to terminate his service. Therefore, the order dated 13th April 1982 was passed to the following effect:

St. Mary''s High School,

Karaikal.

Dated: 13-4-82.

CONFIDENTIAL OFFICE ORDER

196/SMH/82.

To

Thiru P. Pragasam,

School Assistant,

St. Mary''s High School,

Karaikal.

Sri P. Pragasam appointed as a School Assistant purely on temporary basis and on probation is hereby informed that his performance during probation has not been satisfactory and the Management has consequently decided to dispense with his services with immediate effect-that is from the afternoon of 13th April 1982.

Apart from the unsatisfactory performance Sri P. Pragasam has also been dealt with by the Management-earlier for his insubordination and irresponsible conduct.

Sri P. Pragasam will be entitled to draw dues in accordance with the rules.

C.C. The Chief Educational Officer,

Karaikal.

Sd.---- Correspondent/Headmaster, St. Mary''s High School. Karaikal

As the writ Petitioner refused to receive the said order the Management/fourth Respondent issued a memo on 8th May 1982 to the following effect:

105/SMH/82

Dated: 8-5-82.

From

The Headmaster,

St. Mary''s High School,

Karaikal.

To

Sri P. Pragasam,

Teacher,

24/5, Jeevanandam Street,

Karaikal.

Sir,

You have been under the employment of this institution for the past nine years as a School Assistant on probation and on temporary basis. Several acts of your misbehavior and insubordination were taken serious note of by the Management. However. You had the benefit of the lenient attitude. You were placed under suspension once and you were also called upon to make amends to your misbehavior on more than one occasion. You have also in the past tendered apology in writing.

Yet there have been no improvement in your conduct and on the other hand it has been deteriorating.

As you are a probationer and your posting is only temporary, the Management is entitled to terminate your service without assigning any reason. Although the Management is not legally bound to give you any opportunity to urge grounds against your termination, in the interest of the justice and equity you are hereby called upon to show cause within fifteen days from the date of receipt hereof as to why your service should not be terminated as you are guilty of the following charges. If your explanation does not reach the office of the undersigned on or before 24th May 19S2, it will be deemed that you have nothing to urge against the charges and the decision of the Management to terminate your services with effect from 30th May 1982 will be given effect to.

Article of Charge I.

You have been the class teacher of VIII Standard and you were holding charge as such. The annual Examination for that class commenced on 29th March 1982 and ended on 13th April 1982. From 1st April,1982 you have wantonly and with the ulterior motive did not mark the attendance.

Article of Charge II

You have been instigating the retired staff of this institution to demand from the Management more pension and other alleged retirement benefits. Mr. S.M. Isack has been reported to the Management that you were demanding from him money for expenses so as to enable you to take steps to recover money for him from the institution.

Article of Charge III

On 13th April 1982, when the undersigned personally tendered to you a letter addressed to you, you refused to receive the same. On the same day you also throw a permission letter at the face of the undersigned in an act of total disrespect and insubordination.

Article of Charge IV.

The letter referred to in the Article of Charge III above was sent to you by registered post, but the same was returned to the sender with the postal endorsement that you were not available for service. This clearly indicates that you had been away from the station without the permission of the undersigned. Alternatively, it indicates that you have avoided the service of notice.

Article of Charge V.

In spite of several demands made by the Management for the production of your S.S.L.C. Book or your B.Ed., Degree, Diploma, you have not been able to produce either of them so far. Your willful non-production has resulted in adverse remarks from the Education Department.

At no event further extension of time will be given for Submitting your explanation.

(Sd.) 8-5-1982. Headmaster, St. Mary�s High School, Karaikal.

C.C. The Chief Educational Officer, Karaikal.

Because the Petitioner refused to receive the above said memo, and also did not file an explanation, the fourth Respondent passed the following order dated 7th June 1982.

Confidential. St. Mary�s High School, Karaikal, Phone: 506. Dt. 1982, June 7.

No. 212/SMH/82

From

The Headmaster,

St. Mary''s High School, Karaikal.

To

Sri P. Pragasam, 24/5, Jeevanandham St., Karaikal.

Sir,

You have been a School Assistant on probation. Several acts of your misbehavior and insubordination were taken serious note by the Management but no disciplinary action was taken against you as the Management hoped for a better behavior from you. In spite of opportunity given there had been no improvement in your attitude and conduct. You were placed under suspension and you were called upon to show cause against your termination of 5 Articles of charges framed against you in the communication of management dt. 8th May 1982. You have with ulterior motive avoided service of notices sent (to) you under registered post. As you have not given any explanation to the Show Cause notice your services came to be terminated with effect from 30th May 1982.

(2) The payment of salaries to you when tendered was refused to be received by you. Your refusal to receive the pay has also been communicated to the proper authority.

(3) As you are not under the employment of this Management from 30th May 1982, you are requested to leave the School premises at once. If you insist on remaining in the school premises in spite of this warning, it will amount to criminal trespass and law will be set into motion against you.

Correspondent/ Head master Headmaster, St. Mary�s High Schooj, Karaikal.

Copy to:

The Chief Educational Officer, Karaikal.

The Archbishop of Pondicherry.

An appeal against that order could have been laid to the Tribunal constituted as per G.O. Ms. 126/Grants/182 dated 13th August, 1982, Education Department, Government of Pondicherry. The attack on the said G.O. sought to be quashed in the writ petition is that one of the members of the Tribunal and the fourth Respondent happen to work under the same Archbishop. Therefore, if an appeal to the said Tribunal is preferred against the order of the termination of service, the Petitioner would not get justice at the hands of said Tribunal. It is under these circumstances, the writ petition for certiorari had come to be filed by the Petitioner who appears as party in person.

I take it that the writ Petitioner''s, grievance is against the order of termination. Concerning that, I heard arguments. The gravamen of the charge of the Petitioner in seeking to quash the order of termination is that it is in utter disregard and violation of the principles of natural justice, In that no attempt was ever made to serve the charge memo, on the writ Petitioner. Even assuming that he refused to receive the charge memo, that does not relieve the fourth Respondent of the duty of conducting an enquiry. Admittedly, no such enquiry was conducted. The 4th Respondent-Management took into consideration the statement recorded on an earlier occasion from a retired teacher and a typist of the school. Lastly, there was no second show cause notice. Though the origin is traceable to Article 311 of the Constitution of India, they have come to be so accepted as forming part and parcel of the principles of natural justice. For the violation of these principles, this Court can interfere under Article 226 of the Constitution of India.

While opposing this stand of the writ Petitioner, the learned Counsel for the 4th Respondent contends as follows:

It is true that the 4th Respondent receives grant under the Grant in Aid Code. This Code contains a serious of administrative instructions. For the violation of these administrative instructions no writ will lie against a private individual like the 4th Respondent. Besides, the writ Petitioners employment with the 4th Respondent was based only on a contract of service. For the breach of contract, no writ will lie and enforcement of contract cannot be secured by invoking writ jurisdiction in support of this argument, the following decisions were cited.

Shri Vidya Ram Misra Vs. Managing Committee, Shri Jai Narain College, , Kumari Regina Vs. St. Aloysius Higher Elementary School and Another, Vaish Degree College v. Lakshmi Narain AIR 1976 S.C. 888 and Shankuntala Sahawala Vs. The Director of Public Instruction II, Hyderabad and Others,

From the above narration it is seen that there has been a clear violation of the principles of natural justice. I say, principles of natural justice, because I do not want to put this case under Article 311 since that Article deals with the rights of the civil servants. These rights have come to be accepted and have struck deep roots in Indian soil and blossomed so well. It is too late in the day to contend that they can be ignored altogether. One is not always refrained from enforcing the contract under Article 226 of the Constitution. The theory that the contractual obligations cannot be enforced under Article 226 stemmed from the fact that the disputed questions of fact will have to be gone into and on these question''s, evidence will have to be let in on either side which is not desirable or which is avoidable under writ jurisdiction and therefore, it cannot come under writ jurisdiction. But as I said, avoidable apart from the fact that the filing of a suit itself is efficacious remedy though somewhat prolonging. The Courts have always come to the rescue of the Petitioners wherever there has been a violation of principles of natural justice since, as I said, they have become well accepted under Indian conditions. Now what has happened in this case? I will take it for a moment that the writ Petitioner had refused to receive the memorandum of charges. Does it mean that the 4th Respondent school is relieved of its obligation to conduct an enquiry? The answer is an emphatic No. It is the bounden duty of the 4th Respondent to have conducted an enquiry, of course, after examining the witnesses in support of the charges, it can very well say that there being no contrary evidence it chose to accept the evidence let in on behalf of the 4th Respondent school. Thereafter, there is a further obligation cast on the 4th Respondent to issue a second show cause notice. In State of Maharashtra Vs. Bhaishankar Avalram Joshi and Another, , failure to issue a second show cause notice was held to Constitute a serious violation of the principles of natural justice. Of course this arose under Article 311 yet, the ratio decedent of that, case can be equally applied to the instant case since this also relates to the application of the principles of natural justice. Therefore, there is a serious infirmity in the order of termination.

The next question is whether a contractual obligation can be enforced under Article 226. 5e it noted that in this case there is no written contract. Therefore, one has to travel in the realm of guess as to what the terms of contract are? Admittedly right from the date of appointment until the date of termination the Petitioner went on promotion purely on oral basis. Not that there cannot be an oral contract; but the question is how is the Court to deduce that terms of the contract so that the Petitioner can be driven to a civil Court to file a suit. Even then where is the necessity for driving the Petitioner to a suit unless there are disputed questions of fact? There are no disputed questions of fact involved in this case. Admittedly, as I said above, there was no enquiry conducted at all albeit the Petitioner did not receive the notice. There was no evidence to conclude that the charges had been established and after such findings a second show cause notice was issued to or served on the writ Petitioner. All these facts had been admitted by Thitu K. Yamunan, learned Counsel for the 4th Respondent. Therefore why should the writ Petitioner be driven to a civil Court? Does it not mean that he is driven from a pillar to post? I do not think that he should be asked to file suit seeking for remedies, having regard to the recent pronouncement of the Supreme Court wherein an important doctrine has been profaned viz., public cause litigation. In order to see that there is no administrative excess and that there is really a redressal of the grievance and further in that substantial justice is done, the Courts in India both under Articles 32 and 226 of the Constitution of India have repeatedly come to the rescue of the unfortunate Petitioners. In one sense it is well settled that Article 226 of the Constitution of India is wider in its concept because of the use of the words any ether purpose than Article 32 which is one for the enforcement of the fund mental rights. No doubt, an attempt is made to argue that for other purpose should be construed as ejusdem generis. I do not agree with this because where there is clear failure of principles of natural justice, the Courts must say that the Petitioner is entitled to relief and he need not go to a suit to establish the obvious. I say, obvious because that is the admission of the fourth Respondent.

Admittedly, the fourth Respondent receives grant as per the Grant in Aid Code. May be they are administrative instructions. The recent trend of the Supreme Court is clearly to the effect that where there is violation of administrative instructions, the writ jurisdiction has to be exercised as laid down in Union of India v. Anglo Afghan Agencies AIR 1968 S.C. 718 and reiterated in Rajamallaiah and Another Vs. Anil Kishore and Others,

Now the only question that remains for consideration is having regard to the fact that the fourth Respondent is a private school, can the Petitioner invoke the writ jurisdiction or not. The learned Counsel for the fourth Respondent relies upon the following passage in paragraph 4 in Shri Vidya Ram Misra Vs. Managing Committee, Shri Jai Narain College, .

It is well settled that, when there is a purported termination of a contract of service, a declaration that the contract of service still subsisted would not be made in the absence of special circumstances, because of the principle that Courts do not ordinarily enforce specific performance of contracts of service (see Executive Committee, U.P. Warehousing Corporation Vs. Chandra Kiran Tyagi, and Indian Airlines Corporation Vs. Sukhdeo Rai, If the master rightfully ends the contract, there can be no complaint. If the master wrongfully ends the contract, then the servant can pursue a claim for damages. So even if the master wrongfully dismisses the servant in breach of the contract, the employment is effectively terminated. In Ridge v. Boldwin (1963) 2 W.L.R. 935, Lord Reid said in his speech:

The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence; it depends on whether the facts emerging at the trial prove breach of contract. But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them.

There since the point raised was of contractual obligation arising out of a contract, the writ jurisdiction was not exercised. The principles laid down in that case was that disputed questions of fact cannot be gone into writ jurisdiction. In Kumari Regina Vs. St. Aloysius Higher Elementary School and Another, in paragraph 4, it is stated that the Grand in Aid Code is not statutory in character but contains a series of administrative instructions. The law, in my considered view, has to cover violation of the principles of a administrative instructions, as has been held by the later pronouncement of the Supreme Court in Rajamallaiah and Another Vs. Anil Kishore and Others, . Vaish Degree College v. Lakshmi Narain AIR 1976 S.C. 888. was also a case where the Supreme Court held that the Appellant college therein was not a statutory body and in Shankuntala Sahawala Vs. The Director of Public Instruction II, Hyderabad and Others, . it was observed:

Although a private institution registered under the Cooperative Societies Act or the Companies Act or Non-trading Societies Registration Act, is a public body, it is not open to the High Court to issue a writ or direction against such a body for breach of any administrative or executive instructions. Harijander Singh Vs. Selection Committee, Kakatiya Medical College, Warrangal and Another, . Osmania College, Kurnool v. D.V. Subbasastry (1977) 1 And. W.R. 187. Held not good law in view of Vaish Degree College v. Lakshmi Narain AIR 1976 S.C. 888 and Arya Vidya Sabha, Kashi and Another Vs. Krishna Kumar Srivastava and Another, . Case law discussed.

Even if the educational institution is Considered to be a public body, no writ or direction can be issued so long as the private institution is not governed, by statutory rules and there is no question of any enforcement of statutory rules. However, as against a Government servant, who is functioning under administrative orders or administrative instructions, a writ can issue, if there is violation of principles of natural justice or if the administrative instructions which are binding on him, have not teen followed by him. The High Court, in exercise of its jurisdiction under Article 226 can always direct a public servant to abide by the rule of law and the administrative instructions binding on him are part of the rule of law. It is only to the limited extent that the High Court can exercise its writ jurisdiction under Article 226 in matters of this kind.

If administrative instructions have been issued by the Government for giving grant-in-aid and for recognition such administrative instructions do not confer any right on any member of the teaching staff. The breach, if any, of such administrative instructions can be dealt with only by the Government by withholding the grant-in-aid or with drawing recognition, as the case may be but the person affected by the violation of these administrative instructions cannot enforce his rights either by way of suit for declaration or injunction or by way of writ petition.

These principles do not apply to this case because, in my considered view, there is a clear violation of the principles of natural justice by the fourth Respondent which owes an obligation to the writ Petitioner to treat him fairly and in accordance with the principles of natural justice. To direct him to file a suit will be merely driving him from pillar to post which will result in denial of the justice. That is not doing substantial justice, for the shadow of the wings of justice must spread far and wide and cannot be clipped by the scissors of technicalities

See Psalm 17:8 Protect me under the shadow of thy wings.

Psalm 57:1... Be merciful unto Me: for my soul trusteth in thee: Yea in the shadow of thy wing will I make my refuse until these calamities be over past

The writ is for certiorari in the following terms:

...to issue a writ of certiorari or any other appropriate writ or order or direction calling for the records in G.O. Ms. No. 126 of 1982 Grants dated 13th August 1982, Education Department, Government of Pondicherry and quash the same and pass such further or other order....

May be the Petitioner was misguided being a party in person and not being familiar with intricacies and nuances of law; but that does not mean, I should refrain from exercising writ jurisdiction. The Courts of justice are not mere ornamental edifices. They are to enforce the fundamental rights of the citizens and more so when a poor Petitioner is fighting for his bread and butter. No. doubt if the Tribunal is to go on with the case of the writ Petitioner, there will be basis because one of the members of the Tribunal had worked along with the fourth Respondent under same Archbishop. The generally accepted principle of law is that justice must not only be done but must also seen to be done. By merely quashing the G.O., the Petitioner will not get substantial relief. Therefore, I hereby mould the relief as to quashing of order of termination itself since, as I said above, it manifests clearly violation of principles of natural justice in that the writ Petitioner has been treated unfairly and almost has been victimised. Accordingly the order of termination of service of the writ Petitioner is hereby quashed.