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2019 Supreme(Cal) 470
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
SAHIDULLAH MUNSHI, J.
Sankar Prasad Mukherjee - Appellant
Versus
Maulana Abul Kalam Ajad University & Others - Respondent
Writ Petition No. 11280 of 2018
Decided On : 16-05-2019
Srijib Chakraborty, J.D. Roy, Kallol Basu, Nilanjan Pal, Suranjan Das Gupta, Advocates.
A writ petition is maintainable against a private institution which is affiliated to a university and is controlled by a statute, as such an institution discharges a public function.
Headnote:
WRIT - MAINTAINABILITY - PRIVATE INSTITUTION - AFFILIATED TO UNIVERSITY - CONTROL BY STATUTE - ARTICLE 226 OF THE CONSTITUTION - HELD, WRIT IS MAINTAINABLE.
Fact of the Case:
The petitioner, an emeritus professor of the Hooghly Engineering and Technology College (HETC), challenged the order of termination of his service by the college authority. The college was affiliated to the University of Health Science and provisions of the West Bengal University of Technology Act, 2000. The petitioner contended that the writ petition was maintainable as the college was controlled by the statute and discharged a public function.
Finding of the Court:
The court held that the writ petition was maintainable as the college was affiliated to the University and was controlled by the statute. The court observed that the college discharged a public function by imparting education at a larger field and this was sufficient to hold that the State had control over the institution.
Issues: 1. Whether the writ petition is maintainable against the college authority? 2. Whether the college is controlled by the statute and discharges a public function?
Ratio Decidendi: The court held that the writ petition was maintainable as the college was affiliated to the University and was controlled by the statute. The court observed that the college discharged a public function by imparting education at a larger field and this was sufficient to hold that the State had control over the institution.
Final Decision: The court allowed the writ petition and set aside the order of termination of the petitioner's service. The court also directed the college to pay the petitioner his full salary from the day he was placed under suspension.
JUDGMENT :
1. This writ petition along with other two being W.P. No. 5867(W) of 2018 and W.P. No. 5868(W) of 2018 have been assigned before this Court on the request for reference by the Hon'ble Single Bench.
2. After hearing the learned counsels for the parties extensively this writ petition has come up for final decision to consider whether the orders impugned in this writ petition issued by the respondent no.5 are in gross violation of the authority of the Hooghly Engineering and Technology College Service, Leave and Conduct, Rules as also the Hooghly Engineering and Technology College Society (HETCS). A prayer has therefore, been made for setting aside and for quashing the show cause notice dated 26th September, 2017, the order of suspension dated 3rd October, 2017 and a decision forming a three-member enquiry committee dated 26th September, 2017 to look into the purported charges levelled in the show cause issued by the respondent no.4 and the report of the purported enquiry committee dated 27th October, 2017 and to allow the petitioner to resume his duties in the post in question.
3. The termination letter dated 23rd March, 2018 has been issued by Dr. Abhijit Maity, Secretary of HETCS and addressed to the petitioners. The said Abhijit Maity is respondent no.5 herein. The termination letter shows that petitioner's service was no longer required with effect from 23rd March, 2018 and the said termination with one month's advance salary of Rs.40,000/- (Rupees Forty Thousand) only, in lieu of one month's notice has been deposited in the petitioner's account.
4. At the beginning, Mr. Bose appearing for the respondent no.5 has raised a question on maintainability of the writ petition under Article 226 of the Constitution. He submitted that the institution is 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. Mr. Bose has relied on various decisions of the Hon'ble Supreme Court and Submitted that the Hooghly Engineering and Technology College is a society and no writ petition is maintainable against its decisions. The decisions were relied on by Mr. Basu are as follows:
Andi Mukta Sadguru Shree Muktarjee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Ors. - Vs. - V.R. Rudani and Ors., (1989) 2 SCC 691;
Pradeep Kumar Biswas - Vs. - Indian Institute of Chemical Biology, (2002) 5 SCC 111;
Central Board of Dawoodi Bohra Community and Anr. -Vs. - State of Maharashtra and Anr., (2005) AIR SC 752;
Official Liquidator -Vs. - Dayanand and Ors., (2008) 10 SCC 1;
Srikanta Maity -Vs. - The State of West Bengal & Ors. (unreported) W.P. 1407 (W) of 2008;
Sonia Maheswari -Vs. - State of West Bengal & Ors. (unreported) W.P. 18224 (W) of 2018 decided on 10.01.2019;
Ramakrishna Mission & Anr. -Vs. - Kago Kunya & Ors. decided by the Hon'ble Supreme Court in Civil Appeal No. 2394 of 2019 decided on 28.02.2019
5. In Andi Mukta Sadguru (supra) paragraph 15 has been relied on by Mr. Basu to argue that a private body is not amenable to writ jurisdiction. The decision, however, decides otherwise. In the said decision question arose whether writ petition filed by retrenched teachers of a private aided college (a public trust) affiliated to university, seeking writ of mandamus for compelling the college management to pay them terminal benefits and arrears of salary due, it was held that writ is maintainable. However, the Court held that writ would not be maintainable for specific performance of contractual services or declaration for continuation of service in paragraph 15 of the said decision. The Hon'ble Supreme Court held "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 of the mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus canno
