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2004 Supreme(Gau) 101
IN THE HIGH COURT OF GAUHATI
Biplab Kumar Sharma, J.
Rambhabala Devi Sahariah
Vs.
Multipurpose Progressive Association Japorigog and Ors.
WP(C) No. 6365 of 2003
Decided On: 13.02.2004
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: G.C. Phukan and M.N. Nath, Advs.
For Respondents/Defendant: B. Kalita, S. Dutta and C. Shome, Advs.
The central legal point established in the judgment is that the writ jurisdiction under Article 226 of the Constitution of India is applicable to private institutions only when there is a public duty or function involved, and the nature of the duty imposed on the body is of public importance.
Headnote:
Writ Petition - Termination of Service - Article 226 - [Unni Krishnan v. State of Andhra Pradesh, AIR 1998 SC 295, K. Krishnamacharyulu and Ors. v. Sri Venkateawara Hindu College of Engineering and Anr., 2001 2 GLR 378, Jyotishmoy Bora v. Governing Body (Special) Pragjyotish Cellete and Ors., 2002 3 GLR 104] - The court discussed the maintainability of the writ petition under Article 226 of the Constitution of India in the context of the termination of service of a teacher from a private school. The key legal provisions and interpretations revolved around the definition of 'Authority' under Article 12, the nature of duty imposed on the body, and the public element involved in the core issue. The court considered various decisions to determine the applicability of writ jurisdiction, emphasizing the public duty or function and the involvement of public interest in the matter.
Fact of the Case:
The petitioner, a teacher of a private school, filed a writ petition under Article 226 of the Constitution of India against the termination of her service. The school management restrained her from attending duties based on verbal instructions, leading to the challenge of the legality and validity of the action.
Finding of the Court:
The court analyzed the maintainability of the writ petition, considering the nature of the school, its recognition, financial position, and the involvement of public duty or function. It concluded that the writ petition was not maintainable as the school was a private institution without statutory power, and the employee-employer relationship was purely of a private character.
Issues: The main issue revolved around the legality and validity of the termination of the petitioner's service, with a preliminary objection raised on the maintainability of the writ petition under Article 226 of the Constitution of India.
Ratio Decidendi: The court's decision was based on the determination that the school, being a private institution without statutory power and not supported by any state act, was not amenable to the writ jurisdiction. It emphasized the absence of public duty or function in the employment affairs of the school.
Final Decision: The writ petition was dismissed, and the petitioner was not entitled to invoke the writ jurisdiction of the court. The dismissal did not preclude the petitioner from seeking redressal through the appropriate forum or court.
B.K. Sharma, J.
1. By this writ petitioner, a teacher of a private School has invoked the, writ jurisdiction under Article226 of the Constitution of Indian making a grievance against termination of her service. A preliminary objection has been raised on behalf of the respondents on the maintainability of the writ petition on ground of the school being not an authority within the meaning of Article 12 of the Constitution of India. It is upon answer to this objection, the main issue relating to the legality and validity of the order of termination of service of the petitioner will depend. Since the very maintainability of the writ petition itself has been questioned by way of a preliminary objection, same is taken up first for a decision inasmuch as if the objection is upheld, the other issues raised in the writ petition need not be gone into.
2. The facts leading to filing of the writ petitions are not in dispute. The petitioner who was appointed as Assistant Teacher of the school in question way back is 1991 has been restrained from attending her duties and signing the Attendance Register as per the endorsement made by the Principal of the School on the representation dated 4.8.2003 made by the petitioner. As per the said endorsement, the petitioner was not allowed to sign the Attendance Register in term of the verbal instruction of the Principal and Secretary of the Association which runs the school. It is legality and validity of such an action on the part of the School management authority which has been challenged in this writ petition.
3. The respondents in their affidavit-in-opposition has taken the stand that the school is being run by a Society comprising of some members of the public of the locality and it is only with the help and assistance of some well wishers and members of the Society and teachers the School is being managed. As per the averments made in the writ petition the school has not yet got recognition of the Board of Secondary Education, Assam (SEBA) or any other Board or Authority and thus the students are not being seat for HSCL Examination as regular students and are only being sent through other recognized schools. As regards the financial position of the school, it has been averred in the affidavit that the same is not sound and the teachers salary etc., are being paid depending upon fund generated from tuition fees paid by the students. In the affidavit, the factum of reduction in establishment and abandonment of Hindi medium and gradual cassation of the Assamese medium leaving only the English medium as the sole medium of instruction necessitating reduction in staff strength has been highlighted. According to the stand in the affidavit such reduction in staff strength required dispensation of the services of the petitioner alongwith another teacher. Finally in the above backdrop it is the stand of the respondents that the school and for that matter the Association which has been running the school is not an authority so as to be included within the meaning of "the State" as envisaged under Article 12 of the Constitution of India. It is on this count the very maintainability of the writ petition has been questioned.
4. The petitioner is also not oblivious of her task to establish her case through the writ jurisdiction of this Court. The following averments have been made in the writ petition to bring her case within the writ jurisdiction --
"That the petitioner bag to state that the respondent No. 2 namely Resold and Model School is a mixed medium school for teaching the students for enabling them to appearing the HSLC Examination held by the Secondary Examination Board of Assam (SEBA) under the control of the Govt. of Assam. The said school is managed and run by the respondents No. 1 namely M/s Multipurpose Progressive Association (M/s M.P.A.) which is an Association of public nature for undertaking various types of works for the interest of general public. The aforesaid respondents may be lega
