Full Judgment Text
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PETITIONER:
ANANDI MUKTA SADGURU SHREE MUKTA JEEVANDASSWAMI SUVARNA JAYA
Vs.
RESPONDENT:
V.R. RUDANI & ORS.
DATE OF JUDGMENT21/04/1989
BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
OZA, G.L. (J)
CITATION:
1989 AIR 1607 1989 SCR (2) 697
1989 SCC (2) 691 JT 1989 Supl. 128
1989 SCALE (1)1116
CITATOR INFO :
R 1990 SC 415 (17)
ACT:
Constitution of India, 1950: Article 226---’Any person
or authority’--Not to be confined only to statutory authori-
ties or instrumentalities of the State--Mandamus cannot be
denied on the ground that duty to be enforced is not imposed
by statute.
HEADNOTE:
Appellant No. 1 is a public trust and the other appel-
lants are its trustees. The Trust was running a science
college at Ahmedabad. The college initially had temporary
affiliation to the Gujarat University. From June 15, 1973
onwards the college had permanent affiliation.
A dispute between the University Area Teachers Associa-
tion and the University was referred to the Chancellor of
the University who gave his award on June 12, 1970. The
award was accepted by the State Government as well as by the
University. The latter issued direction to all affiliated
colleges to pay their teachers in terms of the award.
The appellants instead of implementing the award served
notice of termination upon 11 teachers on the ground that
they were surplus, and approached the University for permis-
sion to remove them. The Vice-Chancellor did not accept
their request. Thereupon the Trust decided to close down the
college.
The retrenched persons demanded arrears of salary and
allowances, provident fund and gratuity dues, and closure
compensation. But the management did not pay these dues. The
employees then moved the High Court to issue a writ of
mandamus directing the Trust to pay the retrenched employees
their legitimate dues. The High Court accepted the writ
petitions.
Before this Court, the appellants while conceding the
just right of the employees to get salary for 2 1/2 months
and the provident fund dues, contended that the Trust was
entitled to get reimbursement from the Government in lieu of
these payments. As regards the arrears of salary.
698
payable under the Chancellor’s aWard, the appellants con-
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tended that it was the liability of the Government and not
of the management of the college. As regards the closure
compensation it was contended that Ordinance 120E prescrib-
ing compensation was ultra vires, and, at any rate, it was
not binding on the Trust since it was enacted prior to the
affiliation of the college. It was further contended that
the Trust was a private body and was not subject to the writ
jurisdiction under Article 226.
Dismissing the appeals, it was,
Held: (1)The Court is only concerned with the liability
of the management of the college towards the employees.
Under the relationship of master and servant, the management
is primarily responsible to pay salary and other benefits to
the employees. The management cannot say that unless and
until the State compensates, it will not make full payment
to the staff. [703E-F]
(2) The college had temporary affiliation even earlier
to the Ordinance 120E. That apart, the benefits under the
Ordinance are to be given when the college is closed which
in this case was admittedly after the Ordinance was enacted.
[704A-B]
(3) 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 conven-
ient remedy, mandamus cannot be denied. [705B-C]
(4) Public money paid as Government aid plays a major
role in the control, maintenance and working of educational
institutions. The aided institutions, like Government insti-
tutions, 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 Em-
ployment in such institutions, therefore, is not devoid of
any public character. [705C-D]
(5) When the University takes a decision regarding the
pay scales of the employees of the aided institution, 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-duty relationship. When
there
699
is existence of this relationship, mandamus cannot be re-
fused to the aggrieved party. [705E]
(6) Article 226 confers wide powers on the High Court to
issue writs in he nature of prerogative writs. 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." [706F-G]
Executive Committee of Vaish Degree College v. Lakshmi
Narain., [1976] 2 SCR 1006; Deepak Kumar Biswas v. Director
of Public Instructions., [1987] 2 SCC 252 distinguished
Dwarkanath v. Income Tax Officer, [1965] 3 SCR 536, referred
to.
(7) This is a striking departure from the English Law.
Under the English Law, the prerogative writ of mandamus is
confined only to public authorities to compel performance of
public duty, and ’public authority’ there means every body
which is created by statute-and whose powers and duties are
defined by statute. [706E-F]
(8) The words "any person or authority" used in Article
226 are not to be confined only to statutory authorities and
instrumentalities of the State. They may cover any other
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person or body performing public duty. The form of the body
concerned is not very much relevant. What is relevant is the
nature of the duty imposed on the body. The duty must be
judged in the light of positive obligation owed by the
person or authority to the affected party, no matter by what
means the duty is imposed. If a positive obligation exists
mandamus cannot be denied. [707G-H; 708A-B]
(9) Mandamns cannot be denied on the ground that the
duty to be enforced is not imposed by the statute. [708B]
Praga Tools Corporation v. Shri C.A. Imanual, [1969] 3
S.C.R. 773, referred to.
(10) The judicial control over the fast expanding maze
of bodies affecting the rights of the people should not be
put into water-tight compartment. It should remain flexible
to meet the requirements of variable circumstances. Mandamus
is a very wide remedy which must be easily available ’to
reach injustice wherever it is found’. Technicalities should
not come in the way of granting that relief under Article
226. [708F-G]
700
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2704-06
of 1979.
From the Judgment and Order dated 1.5.1979 of the Guja-
rat High Court in Special Civil Appln. Nos. 133 of 1976, 325
and 384 of 1976.
A.B. Rohatagi, Harish N. Salve, Ms. Palavi Shroff, S.S.
Shroff, P.S. Shroff and R. Sasiprabhu for the Appellants.
Kapil Sibbal, Suresh Shelat, P.H. Parekh and Ms. Gitan-
jali for the Respondents.
The Judgment of the Court was delivered by
K. JAGANNATHA SHETTY, J. These appeals, by certificate,
are from a common judgment of the Gujarat High Court giving
some monetary benefits to the respondents.
The facts of the case cane be quite shortly stated:
The appellant no. 1 is a public trust and other appel-
lants are its trustees. The trust was running a science
college at Ahmedabad. The college initially had temporary
affiliation to the Gujarat University under the Gujarat
University Act, 1949. From June 15, 1973 onwards, the col-
lege had permanent affiliation under the said Act as amended
by Gujarat Act No. VI of 1973. The University teachers and
those employed in the affiliated colleges were paid in the
pay scale recommended by the University Grants Commission.
At one stage, there was some dispute between the University
Area Teachers Association and the University about the
implementation of certain pay scales. That dispute, by
agreement of parties, was referred to the Chancellor of the
University for decision. On June 12, 1970, the Chancellor
gave his award in the following terms:
"(1) That the revised pay scales as
applicable to teachers who joined before April
1, 1966, should similarly be applicable to
those who joined after April 1, 1966. and they
be continued even after April 1, 1971.
(2) That these pay scales be exclu-
sive of dearness allowance. Therefore, fixing
the pay of the teachers who joined after April
1, 1966, no petition of existing dearness
701
allowance would be merged. However, with
effect from April 1, 1971 in respect of both
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the categories of teachers i.e. Pre-1966 and
Post-1966 teachers, dearness allowance was to
be merged with the salary.
(3) That arrears for the period from
April 1, 1966 to March 31, 1970 accruing due
under the award were to be paid (without
interest) in ten equal instalments beginning
from April 1, 1971.
(4) The award was to be given effect
to from April 1, 1970. There are other provi-
sions also. But we are not concerned with
those provisions for our purpose."
This award of the Chancellor was accepted by the State
Government as well as by the University. The latter issued
direction to all affiliated colleges to pay their teachers
in terms thereof. The appellants instead of implementing the
award served notice of termination upon 11 teachers on the
ground that they were surplus and approached the University
for permission to remove them. But the Vice-Chancellor did
not accede to their request. He refused the permission
sought for. There then the management--we mean the
trust--took a suicidal decision. The decision was to close
down the college to the detriment of teachers and students.
The affiliation of the college was surrendered and the
University was informed that the management did not propose
to admit any student from the academic year 1975-76. It was
again a unilateral decision without approval of the Univer-
sity. The college was closed with effect from June 15, 1975
with the termination of services of all the academic staff.
The academic staff under law were entitled to terminal
benefits. In fairness, that ought to have been paid simulta-
neously while being removed. But the management did not do
that. The teachers waited with repeated representations only
to get a negative reply and ultimately, they moved the High
Court with writ petitions for the following reliefs:
"To issue a writ of mandamus or writ
in the nature of mandamus or any other appro-
priate writ or direction or order directing
the respondent Trust and its trustees respond-
ents to pay to the petitioners their due
salary and allowances, the provident fund and
gratuity dues in accordance with the Rules
framed by the University and pay them
702
compensation that would be payable to them
under Ordinance 120 E and they may be further
directed to pay the difference of pay payable
to them on the implementation of the U.G.C.
pay scales in accordance with Government
Resolution as clarified by the Award passed by
the Chancellor."
As is obvious from these reliefs, the retrenched persons
were not agitating for their continuance in the service.
They seem to have made a tryst with the destiny and accepted
the closure of the college. They demanded only the arrears
of salary, provident fund, gratuity and the closure compen-
sation which were legitimately due to them.
The trust, however, resisted the writ petitions on every
conceivable ground. The objections raised by the trust may
be summarised as follows: (i) The trust is not a statutory
body and is not subject to the writ jurisdiction of the High
Court; (ii) the Resolution of the University directing
payment to teachers in the revised pay scales is not binding
on the trust; (iii) The University has no power to burden
the trust with additional financial liability by retrospec-
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tively revising the pay scales; (iv) the claim for gratuity
by retrenched teachers is untenable. It is payable only to
teachers retiring, resigning, or dying and not to those
removed on account of closure of the college; and (v) Ordi-
nance 120E prescribing closure compensation is ultra vires
of the powers of the syndicate. It is at any rate not bind-
ing on the trust, since it was enacted prior to affiliation
of the college.
The High Court rejected all these submissions, and
accepted the writ petitions by delivering a lengthy judg-
ment. The High Court thus directed the trust to make pay-
ments in the following terms:
"(1) Amount of the remaining six
instalments as per Chancellor’s Award in
respect of arrears from 1.4. 1966 to 31.3.
1970 as detailed category No. 1 above, (2)
Salary for the period from 1.4.1975 to
14.6.1975 as per revised payscales, (3) Com-
pensation as per sub-clause (a) and (b) of
clause (vii) of Ordinance 120 E, (4) Provident
Fund dues as per the approved scheme."
The trust by obtaining certificate has ap-
pealed to this Court.
Counsel for the appellants mercifully concedes the just
right of the teachers to get salary for the period of two
and a half months from
703
April 1, 1974 to June 14, 1974. He has also no objection to
pay provident fund dues. He, however, says that the trust is
entitled to get reimbursement from the Government and that
question must be determined in these appeals. As regards the
arrears of salary payable under the Chancellor’s Award, the
counsel contends that it is the liability of the Government
and not of the management of the college. As regards the
closure compensation payable under the Ordinance, he repeats
the contention taken before the High Court. He also main-
tains that the trust is a private body and is not subject to
the writ jurisdiction under Article 226.
Having heard the counsel for both parties, we are left
with an impression that the appellants are really trying to
side-track the issue and needlessly delaying the legitimate
payments due to the respondents. The question whether the
State is liable to recompense the appellants in respect of
the amount payable to the respondents was not considered by
the High Court and indeed could not have been examined since
the State was not a party to the proceedings. However, by
the persuasive powers of the counsel in this Court, the
State has been impleaded as a party in these appeals. Per-
haps, this Court wanted to find out the reaction of the
State on the appellants’ assertion for reimbursement. We
heard counsel for the State. He disputes the appellants’
claim. In fact, he challenged the claim on a number of
grounds. He says that the State is under no obligation to
pay the appellants as against the sum due to the respond-
ents. We do not think that we need rule to day on this
controversy. It is indeed wholly outside the scope of these
appeals. We are only concerned with the liability of the
management of the college towards the employees. Under the
relationship of master and servant, the management is pri-
marily responsible to pay salary and other benefits to the
employees. The management cannot say that unless and until
the State compensates, it will not make full payment to the
staff. We cannot accept such a contention.
Two questions,however, remain for consideration: (i) The
liability of the appellants to pay compensation under Ordi-
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nance 120E and (ii) The maintainability of the writ petition
for mandamus as against the management of the college. The
first question presents no problem since we do not find any
sustainable argument. The power of the Syndicate to enact
the Ordinance is not in doubt or dispute. What is, however,
argued is that the Ordinance is not binding on the manage-
ment since it was enacted before the college was affiliated
to the University. This appears to be a desperate contention
overlooking the
704
antecedent event. The ’counsel overlooks the fact that the
college had temporary affiliation even earlier to the Ordi-
nance. That apart, the benefits under the Ordinance shall be
given when the college is closed. The college in the instant
case was closed admittedly after the Ordinance was enacted.
The appellants cannot, therefore, be heard to contend that
they are not liable to pay compensation under the Ordinance.
The essence of the attack on the maintainability of the
writ petition under Article 226 may now be examined. It is
argued that the management of the college being a trust
registered under the Public Trust Act is not amenable to the
writ jurisdiction of the High Court. The contention in other
words, is that the: trust is a private institution against
which no writ of mandamus can be issued. In support of the
contention, the counsel relied upon two decisions of this
Court: (a) Executive Committee of Vaish Degree College,
Shamli and Others v. Lakshmi Narain & Ors., [1976] 2 SCR
1006 and (b) Deepak Kumar Biswas v. Director of Public
Instructions, [1987] 2 SCC 252.1n the first of the two
cases, the respondent institution was a Degree College
managed by a registered co-operative society. A suit was
filed against the college by the dismissed principal for
reinstatement. It was contended that the Executive Committee
of the college which was registered under the Co-operative
Societies Act and affiliated to the Agra University (and
subsequently to Meerut University) was a statutory body. The
importance of this contention lies in the fact that in such
a case, reinstatement could be ordered if the dismissal is
in violation of statutory obligation. But this Court refused
to accept the contention. It was observed that the manage-
ment of the college was not a statutory body since not
created by or under a statute. It was emphasised that an
institution which adopts ,certain statutory provisions will
not become a statutory body and the dismissed employee
cannot enforce a contract of personal service against a
non-statutory body.
The decision in Vaish Degree College was followed in
Deepak Kumar Biswas case. There again a dismissed lecturer
of a private college was seeking reinstatement in service.
The Court refused to grant the relief although it was found
that the dismissal was wrongful. This Court instead granted
substantial monetary benefits to the lecturer. This appears
to be the preponderant judicial opinion because of the
common law principle that a service contract cannot be
specifically enforced.
But here the facts are quite different and, therefore, we
need not
705
go thus far. There is no plea for specific performance of
contractual service. The respondents are not seeking a
declaration that they be continued in service. They are not
asking for mandamus to put them back into the college. They
are claiming only the terminal benefits and arrears of
salary ’payable to them. The question is whether the trust
can be compelled to pay by a writ of mandamus?
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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 conven-
ient remedy, mandamus cannot be denied. It has to be appre-
ciated that the appellants--trust was managing the affiliat-
ed college to which public money is paid as Government aid.
Public money paid as Government aid plays a major role in
the control, maintenance and working of educational institu-
tions. The aided 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 charac-
ter. (See--The Evolving Indian Administration Law by M.P.
Jain [1983] p. 266). So are the service conditions of the
academic staff. When the University takes a decision regard-
ing 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 pro-
tection by University decisions creating a legal right-duty
relationship between the staff and the management. When
there is existence of this relationship, mandamus can not be
refused to the aggrieved party.
The Law relating to mandamus has made the most spectacu-
lar advance. It may be recalled that the remedy by preroga-
tive writs in England started with very limited scope and
suffered from many procedural disadvantages. To overcome the
difficulties, Lord Gardiner (the Lord Chancellor) in pursu-
ance of Section 3(1)(e) of the Law Commission Act, 1965,
requested the Law Commission "to review the existing reme-
dies for the judicial control of administrative acts and
omission with a view to evolving a simpler and more effec-
tive procedure." The Law Commission made their report in
March 1976 (Law Com No. 73). It was implemented by Rules of
Court (Order 53) in 1977 and given statutory force in 1981
by Section 31 of to Supreme Court Act 1981. It combined all
the former remedies into one proceeding called Judicial
Review. Lord Denning explains the scope of this "judicial
review":
706
"At one stroke the courts could grant whatever
relief was appropriate. Not only certiorari
and mandamus, but also declaration and injunc-
tion. Even damages. The procedure was much
more simple and expeditious. Just a summons
instead of a writ. No formal pleadings. The
evidence was given by affidavit. As a rule no
cross-examination, no discovery, and so forth.
But there were important safeguards. In par-
ticular, in order to qualify, the applicant
had to get the leave of a judge.
The Statute is phrased in flexible terms. It
gives scope for development. It uses the words
"having regard to". Those words are very
indefinite. The result is that the courts are
not bound hand and foot by the previous law.
They are to ’have regard to’ it. So the previ-
ous law as to who are--and who are not--public
authorities, is not absolutely binding. Nor is
the previous law as to the matters in respect
of which relief may be granted. This means
that the judges can develop the public law as
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they think best. That they have done and are
doing." (See--The Closing Chapter--by Rt. Hon
Lord Denning p. 122).
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 statute--and whose powers and duties are
defined by statue. So Government departments, local authori-
ties, 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 226 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".
Article 226 reads:
"226. Power of High Courts to issue certain
writs (1) Notwithstanding anything in Art. 32,
every High Court shall have power, throughout
the territories in relation to which it exer-
cises jurisdiction to issue to any person or
authority including in appropriate cases, any
Government, within those territories direc-
tions, orders or writs, includ-
707
ing (Writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certi-
orari, or any of them for the enforcement of
any of the rights conferred by Part II and for
any other purpose.
XXX XXX
XXX XXX "
The scope of this article has been ex-
plained by Subba Rao., in Dwarkanath v. Income
Tax Officer, [1965] 3 SCR 536 at (540-41):
"This article is couched in compre-
hensive phraseology and it ex-facie confers a
wide power on the High Courts to reach injus-
tice wherever it is found. The Constitution
designedly used a wide language in describing
the nature of the power, the purpose for which
and the person or authority against whom it
can be exercised. It can issue writs in the
nature of prerogative writs as understood in
England; but the use of the expression "na-
ture", for the said expression does not equate
the writs that can be issued in India with
those in England, but only draws an analogy
from them. That apart, High Courts can also
issue directions, orders or writs other than
the prerogative writs. It enables the High
Courts to mould the reliefs to meet the pecul-
iar and complicated requirements of this
country. Any attempt to equate the scope of
the power of the High Court under Article 226
of the Constitution with that of the English
Courts to issue prerogative writs is to intro-
duce the unnecessary procedural restrictions
grown over the years in a comparatively small
country like England with a unitary form of
Government into a vast country like India
functioning under a federal structure. Such a
construction defeats the purpose of the arti-
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cle itself."
The term "authority" used in Article 226, in the con-
text, must receive a liberal meaning unlike the term in
Article 12. Article 12 is relevant only for the purpose of
enforcement of fundamental rights under Art. 32. Article 226
confers power on the High Courts to issue writs for enforce-
ment of the fundamental rights as well as nonfundamental
rights. 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. They may
cover any other person or body performing public duty. The
form of the body concerned is not very much relevant. What
is relevant is the nature of
708
the duty imposed on the body. The duty must be judged in the
light of positive obligation .owed by the person or authori-
ty to the affected party. No matter by what means the duty
is imposed. If a positive obligation exists mandamus cannot
be denied.
In Praga Tools Corporation v. Shri C.A. Imanual & Ors.,
[1969] 3 SCR 773, this Court said that a mandamus can issue
against a person or body to carry out the duties placed on
them by the Statutes even though they are not public offi-
cials or statutory body. It was observed (at 778):
"It is, however, not necessary that
the person or the authority on whom the statu-
tory duty is imposed need be a public official
or an official body. A mandamus can issue, for
instance, to an official or 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 under-
takings. A mandamus would also lie against a
company constituted by a statute for the
purpose of fulfilling public responsibilities.
(See Halsbury’s Laws of England (3rd Ed. Vol.
II p. 52 and onwards)."
Here again we may point out that mandamus cannot be
denied on the ground that the duty to be enforced is not
imposed by the statute. Commenting on the development of
this law, Professor De Smith states: "To be enforceable by
mandamus a public duty does not necessarily have to be one
imposed by statute. It may be sufficient for the duty to
have been imposed by charter, common law, custom or even
contract." (Judicial Review of Administrative ’Act 4th Ed.
p. 540). We share this view. The judicial control over the
fast expanding maze of bodies effecting the rights of the
people should not be put into water-tight compartment. It
should remain flexible to meet the requirements of variable
circumstances. Mandamus is a very wide remedy which must be
easily available ’to reach injustice wherever it is found’.
Technicalities should not come in the way of granting that
relief under Article 226. We, therefore, reject the conten-
tion urged for the appellants on the maintainability of the
writ petition.
In the result, the appeals fail and are dismissed but
with a direction to the appellants to pay all the amounts
due to the respondents as
709
per the judgment of the High Court. The amount shall be paid
with 12 per cent interest. The balance remaining shall be
paid within two months from today. The appellants shall also
pay the costs of the respondents teachers which we quantify
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at Rs. 26,000.
R.S.S. Appeals dismissed.
710