S. Sarla Kumari and Another vs Govt. of India and Others

S.R. Nayak, J.—Although the fourth respondent institute of Management claims to be a prestigious organization to promote education maintaining high standards, after hearing the learned counsel for the parties and perusing the documents produced in the cases, the Court finds that the impugned orders made by the fourth respondent Institute exhibit very low standard of law. Writ Petition No. 7570 of 1993 is filed by one Dr. K.J. Pillai against the order of the Chairman, dated June 1, 1993, of Siva Sivani Educational Society which is arrayed as respondent 3 in the writ petition terminating his services as the Director of the fourth respondent Institute of Management. The petitioner in Writ Petition No. 7437 of 1993 Smt. S. Sarala Kumari is the wife of Dr. K.J. Pillai and she has questioned the valididity of the order made by the Chairman of the third respondent Society, dated May 17, 1993 keeping her under suspension pending an enquiry.

Few undisputed facts which are necessary to be. noted for the purpose of disposal of these writ petitions are:

"The petitioner and certain others, in the year 1978 formed a society and registered the same under the provisions of the Public Societies Registration Act 1350, and established an institute called Indian Institute of Administrative Sciences to teach the Students leading to the Master Degree in Business Administration. When the said institute was established in the year 1978, it had no recognition of affiliation either by the public authorities or the universities. The third respondent society took over the management of the said Institute of Administrative Sciences on November 17, 1991 under a registered agreement. There afterwards even the name of the institute was changed as Siva Sivani Institute of Management. There afterwards respondents 3 and 4 sought recognition from the All India Council for Technical Education (AICTE), a statutory authority created under the All India Council for Technical Education Act, 1987 and the recognition was granted to the fourth respondent institute by the AICTE on December 9, 1992. Dr. K.J. Pillai was the Director of the Indian Institute of Administrative Sciences and his wile Smt. Sarala Kumari was the Research Associate of the same institute. Even after taking over of the management of the Indian Institute of Administrative Sciences by the third respondent-society, they were again appointed and continued in their respective posts. When the matter stood thus, the Chairman of the third respondent society passed orders on May 17, 1993 suspending both Dr. K.J. Pillai and his wife Smt. Sarala Kumari pending the enquiry into certain alleged misconduct committed by them. Dr. K.J. Pillai had filed Writ Petition No. 7437 of 1993 questioning the validity of the suspension order and the said writ petition is already disposed of in view of the final order of termination, dated June 1, 1993".

The learned counsel for the parties were heard. The learned counsel for the petitioners attacking the validity of the order, dated June 1, 1993, terminating the services of Dr. K.J. Pillai as Director of the institute submitted that the impugned order dated June 1, 1993, passed by the Chairman of the third respondent- society is totally unreasonable, arbitrary and in violation of principles of natural justice. It was also contended that the third respondent has no power to pass the impugned order and only the Governing body of the fourth respondent institute could terminate the services of the Director and, therefore the impugned order is without jurisdiction. The learned counsel also contended that the impugned order was actuated by malice in fact She also further contended that the impugned order is made in violation of Section 579 of the Andhra Pradsh Education Act, 1982. Assailing the order of the Chairman of the third respondent-society dated May 17, 1993, keeping Smt. Sarala Kumari under suspension pending enquiry the learned counsel submitted that the action smacks of arbitrariness, unreasonableness and is made in utter violation of principle of natural justice. She submitted that though more than 16 months are elapsed from the date of impugned order, respondents 3 and 4 have not reviewed the suspension order and they are treating the suspension order as the one terminating the services of Smt S. Sarala Kumari.

The learned counsel for respondents 3 and 4 while supporting the actions of the Chairman of the third respondent society raised preliminary objection regarding the maintainability of the writ petitions. The learned counsel would argue that respondent 4 is a wholly private unaided educational institution and, therefore, it is not a "State" within the meaning of Article 12 of the Constitution and, therefore, writ could not lie against such institution. He would further submit that assuming but not admitting that the impugned actions resulted in breach of contract entered into between the petitioners and the management, the only remedy available to the petitioners is to approach a competent Civil Court and not this Court under Article 226 of the Constitution. In support of his submission the learned counsel placed reliance on the decisions of the Supreme Court In Radhakrishna Agarwal and Others Vs. State of Bihar and Others, and Upendra Pradhan and Ors. v. State of Orissa and Ors. (Civil Appeal No. 2476 of 1993, dated April 30, 1993) .

The preliminary objection raised by the learned counsel For respondents 3 and 4 should be disposed of in the first instance. It is true that the remedy of judicial review is only available where an issue''of "public law" is involved, but, as Lord Wilberforce pointed out in Davy v. Spelthornie Brough Council (1984-A.C.-262) the expressions "public law" and "private law" are recent immigrants and, whilst convenient for descriptive purposes, must be used with caution. Therefore, what has to be ascertained in the present case is whether the complainent breach is of "public law" obligation or "Private law" obligation. Remedy of certiorari and mandamus would be available for the petitioners if the respondent-management is in breach of a "public law" obligation, but would not be based if it is only in breach of "private law" obligation.

The petitioner in these petitions, complain that the petitioner in Writ Petition No. 7570 of 1993 was dismissed and the petitioner in Writ Petition No. 7437 of 1993 was kept under suspension in uttar violation of the terms of the contracts of appointments entered into between them and the respondent management and bye-laws of the fourth respondent institute. They also complain that the impugned actions are actuated by malice in fact and they are totally unreasonable and arbitrary. If respondent 4 institute were to be an unrecognised and unaided institution, this Court would not have jurisdiction to review the impugned actions, but, respondent 4 institute is a recognised educational institution imparting secular education. The Institute is recognised by the AICTE, a statutory authority. Therefore, the question is whether the grant of recognition by the AICTE has created any legal obligation on the recognised institute to act fairly, reasonably and in conformity with principles of natural justice. The answer to this question should be "yes".

Recognition obliges the recognised institute to conduct its affairs, whether it is purely administrative, contractual or quasi judicial, in such a manner as to be in conformity with the values of fair-play, reasonableness, non-arbitrariness and principles of natural justice when its action has the effect of affecting the civil rights of the pupils, the teachers and the employees working in the institute, This obligation, is very much inherent in the recognition granted by the AICTE. It is unreasonable to presume that fairness and non-arbitrariness are not inherent in the grant of recognition. These obligations should be read into every permission, recognition or affiliation obtained from the public or statutory authorities and the universities as a consideration for the privilege of permission, recognition of affiliation, as the case may be, granted by the State or statutory or university authorities. Therefore, the respondent management is under an obligation to act fairly, reasonably, not arbitrarily and in compliance with the principles of natural justice. The next question is whether, this obligation is a "private law" obligation or "public law" obligation. Fair-play in action reasonableness and non arbitrariness are inherent postulates of Article 14 of the Constitution of India and these values should accompany the "State action i.e. the recognition granted to the fourth respondent-institute. Therefore, the respondent- management which is a recipient of recognition is obliged to practise these values. Imparting secular education is not a private affair of the respondent institute; it is a socialised activity and once an activity is socialised by co-operation and participation of others, accountability should creep in and its actions, like the actions of the State, should always be informed by fairness, reasonableness, justness and principles, of natural justice. Further, the fourth respondent institute is also an aided educational institution. Aids are of many forms and kinds-recognition is also an aid, an important aid from the statutory authority, "Recognition aid" is far more important and valuable than any other aid and perhaps the respondent institute would not have existed without this aid. The resultant position is that the fourth respondent institute and its management the third respondent-society are under "public law" obligation and if the Court finds that they are in breach of this obligation judicial review under Article 226 would be available. The decisions of the Supreme Court in Radharkishna Agarwal and Ors. v. State of Bihar and Ors. (supra) and Upendra Pradhan and Ors. v. State of Orissa and Ors. (supra), are of no help to respondents 3 and 4. In Radhakrishna Agarwal (supra) the Supreme Court was considering the question of enforcing obligations arising out of contract executed under Article 298 of the Constitution. In that case the Court held that after the State or its agents have entered into the field of ordinary contract the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines rights and obligations of the parties interest. No question arises of violation of Article 14 or of any other constitutional provision when the State or its agents purporting to act within the field. In Upendra Pradhan case (supra) the appellants therein were employed in the school in the year 1981 and which school was brought on grant-in-aid in the year 1988. Services of the appellants were terminated in the year 1986 and the Inspector of Schools did not give approval to me termination. Appellants writ petition for reinstatement and payment of back-wages was dismissed by the Orissa High Court. The Supreme Court while confirming the judgment of the Orissa High Court held that regulatory provisions of the Orissa Education Act are applicable only to the aided schools and Inspector could not have exercised the power of disapproval. Therefore, these two decisions cited by the learned counsel for respondents 3 and 4 have no bearing to the points which arise for consideration in the present cases. Therefore, the preliminary objection raised by the learned counsel for respondents 3 and 4 regarding maintainability of the writ petitions is not tenable and the same is rejected and the Court holds that the writ petitions are maintainable.

The next question is whether respondents 3 and 4 are in breach of "public law" obligation. This question need not detain the Court for long Admittedly the services of the petitioner in Writ Petition No. 7570 of 1993 were terminated by the Chairman of the third respondent-society without holding any domestic enquiry or without causing any notice to him. Therefore, the said action is totally arbitrary, unreasonable and in utter violation of principles of natural justice. In the impugned order, dated June 1, 1993 certain grave allegations are made against Dr. K.J. Pillai and if those allegations are true, Dr. K.J. Pillai may be liable to be dismissed from service. But, justice should be done but at the same time it is seen to have been done and that is the cardinal principle of fair play.

Coming to the case of the petitioner in Writ Petition No. 7437 of 1993 it may be noted that the impugned order of suspension was passed as far back as on May 17, 1993 pending an enquiry. It is true that the question whether the employee should or should not continue in their office during the period of enquiry is a matter to be assessed by the authority concerned and ordinarily, the Court should not interfere with the orders of suspension. But at the same time it should be noted that if after suspension enquiry is unduly or prolonged then it shows that the suspension is not bona fide. If enquiry is unnecessarily delayed or prolonged the action may become arbitrary and unreasonable. An employee who is kept under suspension is entitled to ask on "suspension that the matter should he investigated with reasonahle diligence and charges should he framed within reasonahle period of time and if such a principle of natural justice is not recognised then it would imply mat the authority is vested with a totally arbitrary and unfettered power of placing its employees under disability and distress for an indefinite duration. Suspension is not a punishment. But at the same time it should not he forgotten that a suspended employee carries a stigma and public ridicule. Therefore, it is just and necessary for the employee to complete the enquiry with all promptitude and seriousness. It is also necessary for the employer to review periodically as to whether the continued suspension is necessary or not. When these writ petitions were heard the Court asked the learned counsel for respondents 3 and 4 whether respondents 2 and 4 reviewed the suspension order after it was made on May 17, 1993 and learned counsel submitted that it was not reviewed. Respondents 3 and 4 seem to think that the suspension order itself is a termination order. No materials are placed before the Court to justify the continued suspension of the petitioner even alter a lapse of nearly 17 months. The object of placing an employee under suspension is to keep him away from position where she or he can interfere with the conduct of the enquiry or tamper with documentary or oral evidence in any manner or where, having regard to the nature of the charges against her or him, it is felt that it would be unsafe to continue to vest in her or him (he powers of her or his post. The power of suspension is not an unfettered power and this power has to be exercised sparingly, reasonably and on good grounds. I do not find any such ground in the present case for the continued suspension of the petitioner.

Before the Court concludes it should be noted that many other contentions regarding the competence of the Chairman of the third respondent society to make the impugned orders and the violation of bye-laws of the society and Section 79 of Andhra Pradesh Education Act, 1982, were urged by the learned counsel for the petitioner. It is not necessary to consider all those contentions in view of the findings recorded by the Court on other points and, therefore, the Court has not considered those contentions.

In the result and for the reasons stated above the Court makes the following.

Common Order

(i) Writ Petition No. 7570 of 1993 is allowed and the impugned order, dated June 1, 1993 is quashed.

(ii) Writ Petition No. 7437 of 1993 is allowed and the impugned order, dated May 17, 1993 keeping the petitioner under suspension is quashed.

(iii) The petitioners are entitled to all the benefits, pecuniary and otherwise, which flow from the quashing of the impugned orders.

(iv) No costs in both the writ petitions.

(v) This order shall not come in the way of respondents 3 and 4 in Writ Petition No. 7570 of 1993 initiating disciplinary proceedings against the petitioners in accordance with law and in the light of the observation made in this order, if they are so advised.