VIDYA RAM MISHRA v. Chandra Kiran Tyagi & Anr.

Appeal by Special Leave from the judgment and order dated April 13, 1970 of the Allahabad High Court in Special Appeal No. 1074 of 1968. M. C. Seta/vad, P. N. Tiwari, I. B. Dadachanji and Co. for the appellant. D E R. K. Garg and S. C. Agarwal, for the respondents. The Judgment of the Court was delivered by F G H Mathew, J, The appellant filed a writ petition before High Court of Allahabad, Lucknow Bench, challenging the vali . dity of a resolution passed on 12-11-1967 by ·the Managing Com mittee of the Jai Narain College, Lucknow, formerly known as Kanyakubja Degree College, an associated college of the Luck· now University, terminating his services, and praying for issue of an appropriate writ or order quashing the resolution. A learned single judge of that Court, finding that in terminating the services, the Managing COlllDlittee acted in violation of principles of natural justice, · quashed the resolution and allowed the Writ peti tion: The Managing Committee appealed against the order. A Division Bench of the High Court found that · the relationship between the College and the appellant was that of master and servant and that even if the service of the appellant has been terminated in breach of the audi alteram partem rule of natural justice, the remedy of the appellant was to file a suit for damages and not to apply under Article 226 of the Constitution for a writ 322 SUPREME COURT REPORTS [1972] 3 S.C.R. or order in the nature of certiorari and that in fact no principle A of natural justice was violated by ·terminating the services· of the appellant as the appellant was given an opportunity of submitting his explanation to the charges. The Bench, therefore, set aside the order of the learned single judge and dismissed the writ peti It is from this judgment that the appeal has been pre- tion. ferred by special leave. B The appellant joined the service of the college as lecturer· in 1946. He was promoted to the post of Head of the Department of Z.Oology in 1959 .. on the basis of certain complaints against him received by the Manager of the College, charges were fram ed against him and his explanation was called for. He submitted an explanation. The explanation was found not to be satisfac- C resolution on tory and the Managing Committee . passed a 12-11-1967 for removal of the appellant from service. As already stated, this was the resolution challenged by the appellant in the writ petition. On behalf of .the appellant, Mr. M. C. .Setalvad, contended D that the appellant had a statutory status, that his services were terminated in violation of the provisions of statutes passed under the· Lucknow University Act, 1920 and, therefore the High court was wrong in its conclusions that no application for a writ or order in the nature of certiorari would lie. He further submitted that the appellant was not given a reasonable opportunity of defending himself against the charges. It is well settled that, when there is a purported termin@on of a contract of service, a declaration that the contract of service still subsisted would not be made in the absence of special cir cumstances, because. of the principle that Courts do not ordina- rily enforce specific performance of. contracts of service [see Executive. Committee of U.P. State. Warehousing Corporation Ltd. v. Chandra Kiran Tyagi(')] and Indian Alr/ine,r Corporation v. the contract, Sukhdeo Rai('). .there can be no complaint. contract, then the servant can ·pursue a claim for ·. damages. So even if the master wrongfully dismisses the 11Crvant in breaCh. of the contract, the employment Ridge v. Baldwin(•), Lord Reid said in his Speech: If the master wrongfully ends If the master "rightfully ends terminated. effectively In G ''The law regarding master and· servant is not doubt. There cannot be specific performance of a contract of service, and the master can terminate contract with his servant at any time and for any rea son or for none. But if he does so in a manner not (l) A.I.R. 1971 S.C. 1828, (I) (1970) 2 S.C.R 250. (3) (l!l6S) Weekly Law Report!, Vol I, 79. H E • v. Jt. MISlllA v. JAi NARAIN COLLEGE (Mathew, J.) 323 A 8 warranted by the contract he must pay damages mr brcach 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 ser~ vants, or the grounds on which it can dismiss them." C daya University v. Silva(') A teacher appointed by a University constituted under a statute was held n.ot to be holding an office or status in Vidyo- In tha: case the services of the res pondent was brought to an end by a resolution of the University Council set up under the statute establisliing the University. The resolution was admittedly passed without hearing teacher. Under the statute, the Council was empowered to institute pro fessorships and every a.{lpoinment was to be by an agreement in D writing between the Umversity and the professor and was to be for such period and on such terms as the Council might resolve. Under section 18 ( e) of the Act, the Council had the power disiniss an. officer or a teacher on grounds of incapacity or con• duct which, in the opinion of not less than mem\lers of the Council, rendered him unfit to be an officer or a teacher of the University. Such a resolution with the requisite majority was passed. The Act gave no right to the teacher of being heard by the Council. The Privy Council held mere circumstances that the University was established by statute and was regulated by statutory enactments contained the Act did not mean that the contracts of employment made with teachers, though subject to section 18 ( e), were other than ordi- · nary contracts of master and servant and, therefore, the procedure of being hearcl invoked by the respondent was not available him and no writ could be issued against ·the University. two-thirds --of E The decision in this case has been criticised by academic writel'S {see Jaffe, English and American Judges as Law Makers, G p. 26; S.A. de Smith, Judicial Review of Administrative Action, pp. 214-215; G. Ganz, Public Law Principles applicable to Dis missal from Employment, Modern Law Review, Vol. 30 pp. 288- 291). Recently the House 0f Lords considered the question in Malloch v. Aberdeen Corporation('). That case concerned a teacher in Scotland who was dismissed by the Education Com mittee for the reason that he was not registered in tenns of para- H graph 2 of schedule 2 to the Teachers' (Education, Training and Registration) (Scotland) Regulations, 1967, made under section !I) !1964] 3 All E.R. 865. (2) (1971) 1 W.L,Q.. IS7S, 324 SUPREME COURT REPORTS [1972] 3 S.C.R. 2(1) of the Education (Scotland) Act, 1962, and the amending A In an regulation 4(2) of the Schools (Scotland) Code, 1956. action against the education authority, he claimed that the pur ported dismissal was a nullity in that it was contrary to natural It was held justice since he had not been given a hearing.. (Lord Morris and Lord Guest dissenting) that the teacher had a right to be heard before he was dismissed as according to the U: majority he was holding an office. Lord Wilberforce made certain observations : In the course of his speech, "A comparative list of situations in which persons have been held entitled or not entitled to a hearing, or to observation of rules of natural justice, according to the master and servant test, looks illogical and even bizarre. A specialist surgeon is denied protection which is given to a hospital doctor; a University pro fessor, as a servant, has been denied the right to be heard, a dock labourer and an undergraduate have been granted it; examples can be multiplied [see Barber v. Manchester Regional Hospital Board (1958) 1 W.L.R. 181, Palmar v. Inverness Hospitals Board of Manage ment, [1963], S.C. 311, Vidyodaya University Council v. Silva (1965) 1 W.L.R. 77, Vine v. National Dock Labour Board [1957] A.C. 488, Glynn v. Keele Uni versity (1971) 1 W.L.R. 487]. One may accept that if there are relationships in which all requirements of the observance of rules of natural justice are excluded (and I do not wish to assure that this is inevitably so), these must be confined to what have been called "pure master and servant cases", which I take to mean cases in which there is no element of public employment or service, no support by statute, nothing in the nature of an office or a status which is capable of protection. If any of these elements exist, then, in my opinion, what ever the terminology used, and even though in some inter partes aspects the relationship may be called that of master and servant, there may be essential procedu-· ral requirements to be observed, and failure to observe: to be them may result in a dismissal being declared void." and then he said as regards the decision in Vidyodaya University Council v. Silva(') : · "It would not be necessary or appropriate to <.m- .. agree with the procedural or even the factual bas~ en that I which this decision rests : but I must confess (!) [1964] 3 All E.R. 865. c D E F G H A B c D E F G H v. R. MISHRA v. JAI NARAIN COLLEGE (Mathew, J.) 325 similar could not. follow it in this country in so far as it involves a denial of any remedy of administrative law to anolo gous employments. Statutocy provisions those on which the employment rested would tend to show, to my mind, in England or in ScOtland, that it was one of a sufficiently public character, or one par taking sufficiently of the nature of an office, to attract · appropriate remedies of administrative law." Whether the decision in Vidyodaya University Council v. Silva ( 1 there was no element of public employment, nothing in the nature of an office or status which is capable of protection. ) is correct or not, in this case, we think In S. R. Tewari v. Disll:ict Board, Agra('), this Court for mulated the exceptions to the general rule ·that when there is a termination of a contract of service, a declaration that the con ract of service still subsisted would not be made, by saying : "But this rule is sub.iect to certain well recognised exceptions. It is open to the Courts, in an appro priate case, to declare that a public servant who is dis missed from service in contravention of Article 311 continues to remain in service, even though by so doing the State is in effect forced to continue to employ the servant whom it does not desire to employ. Similarly, under the industrial law, jurisdiction of the labour and. -- industrial tribunals t:O compel the employer to employ a worker, whom he does not desire to employ, is re cognised. _ The Courts are also mvested with power to declare invalid the act of a statutocy body, if by doing the act, the body has acted in breach of a mandatory obligation imposed by the statute, even by malcing the declaration the body is compelled to do something which it does not desire to do." Mr. Setalvad contended that since the con.e in queetion Is affiliated to a statutocy body, namely, the University of Lucknow, and is governod by the relevant statutes and ordinances framed under the provisions of Lucknow University Act, 1920, &n)' violation of the statute or the ordinance in the matter of termi· nating the services of a teacher would attract the jurisdiction ol the High Court under Article 226 of the Constitution as. statutes In support of this, coun and ordinances have the force of law. sel relied upon the decision of this Court in Prabhakar Rama krishna Jodh v. A. L. Pande and another('). The , appeJlant before this Court in that case was a teacher in a college affiliated to the University of Saugar and managed by the Governing Body (I) (19641 3 All E.R. 865, (2) (19641 3 S.C.R. SS. (3) (19651 2 S.C.R. 713, 326 SUPREME COURT REPORTS [1972] 3 S.C.R. established under the provisions of the relevant ordinance made A under the University of Saugar Act. Certain charges were framed against the appellant by the Principal of the Collc:ge and he was asked to submit his explanation. The appellant in his explanation denied all the charges and requested for particulars on which one of the charges was based. The particulars were not supplied and the Governing Body ter\ninated his services a without holding any enquiry. The appellilnt moved the High Court under Article 226 of the Constitution for a writ quashing the order of the Governing Body and for his reinstatement. He contended that the Governing Body had made the order in viola tion of the provisions of Ordinance 20, otherwise called 'College Code', framed under section 32 of the University of Saugar Act read with section 6(6) of that Act. Clause 8(vi) (a) C of the College Code provided that the Governing Body of college shall not terminate the services of a confirmed teacher without holding an enquiry and without giving him an opportu nity of defe9ding himself. The High Court held that the condi tions of service of the appellant were governed not by the 'College Code' but by the contract made between the Governing Body and D the appellant under clause 7 of the College Code-which stated that all teachers of the college shall be appointed under a written contract in the form prescribed-, that the provision8 of 'College Code' were merely conditions prescribed for affiliation of colleges and that no legal rights were created by the 'College Code' in favour of the teachers of the affiliated colleges as against E the Governing Body. The High Court, therefore, dismissed the petition. In appeal to this Court it was held that the 'College Code' had the force of law and that it not merely regulated legal relationship between the affiliated colleges and .the Univer- sity but also conferred legal rights on the teachers of affiliated colleges. The Court further said F "It is true that Clause 7 of the Ordinance provides that all teachers of affiliated colleges shall be 'appointed on a written contract in the form prescribed in Sch. A but th_at does not mean that teachers have merely a con- · tractual remedy against the Governing Body of College. On the other hand, we are of opiniqn that the provisions of Clause 8 of the Ordinance security of the tenure of teachers are part and parcel of the teachers' service conditions ...... " relating G · When once this Court came to the conclusion that .the • 'College Code' had the force of law and conferred rights on the teachers H of affiliated colleges, the right to challenge the order terminating the services of the appellant, passed in violation of clause 8(vi) (a) of the 'College Code' in a proceeding under Articls 226 v. R. MISHRA v. JAi NARAIN COLLEGE (Mathew, J.) 327 A followed 'as the night the day' and the fact that the appellant had entered into a \)Ontract was considered as immaterial. C In the case in hand, the position is entirely different, The relevant statutes governing this case are statutes 151, 152 and· 153, framed under the provisions of the Lucknow University Act, 1920. Statute 151 provides that teachers of an Associated B College including the principal shall be appointed on written contract and that the contract shall inter alia provide the condi tions mentioned therein in addition to such other conditions not inconsistent with the Act and the statutes as an Associated College may include in its own form of agreement. Then the conditions as regards salary, age of retirement, etc., are enume- rated, The statute then goes on to specify the grounds on which a teacher's services can be terminated. Statute 152 states that the form of agreement to be adopted by each college shall be in force. approved by the Executive Council before it is put Statute 153 provides for a form of agreement which shall serve It may be noted that statute 151 does not provide as a model. for any particular procedure for dismissal or removal of a cher for being incorporated in the contract. Nor does the model fotm of. contract lay down any particular procedure for that pur pose. The appellant had entered into an agreement when he was employed in the college. Clause 5 of the agreement pr<wlded that: D B F G ''the period of probation shall be one year unless .ixtended by the Managing Committee and the College may at any time during the said period of probation put an end to this engagement, or if service shall con tinue beyond the said term, at any time thereafter, dis- pense with the services of the said Lecturer without notice, if the Managing Committee oLthe said College is satisfied that it is necessary to remove the said Lec- turer for misconduct, insubordination or habitual neglect of duty on the part of the said Lecturer or in case any of the conditions herein specified have been broken by the said Lecturer provided that an oppor tunity is given to him by the. said Managing Committee to give his explanation before a decision is arrived at." H college and the teacher concerned. On a plain reading statute 151, it is clear that it only pro vides that the terms and conditions mentioned therein must be · incorporated in ··the contract to be entered It does not say that the terms and conditions have any legal forcie, until and unless they are embodied in an agreement. To put it in other words, the terms and conditions of service mentioned in Statute 151 have proprio into between 328 SUPREME COURT REPORTS [1972] 3 S.C.R. vigore no force of law. service only by virtue of their being incorporated in the contract. Without the contract, they have no vitality and can confer no legal rights. 'They become terms and conditions of A Whereas in the case of Prabhakar Ramakrishna J odh v. A. L. Pande and another('), the terms and conditions of service B embodied in clause 8(vi)(a) of the 'College Code' had the force of Jaw apart from the contract and conferred rights on the appel lant there, here the terms and conditions mentioned in Statute 151 have no efficacy, unless they are incorporated in a contract. Therefor!l, appellant cannot found a cause of action on any breach of the Jaw but only on the breach of already indicated, Statute 151 does not lay down any procedure for removal of a teacher to be incorporated in the contract; So, clause 5 of the contract can, in no event, have even a statutory flavour and for its breach, the appellant's remedy lay elsewhei:. the contract. AB c Besides, in order th11t the third exception to the genenil rule D that no writ will lie to quash an order tennlnating a contract of service, albeit illegally, as stated in S. R. Tewari v. District Board, Agra(') might apply, it is necessary that the order must be the order of a statutory body acting in breach of a mandatory obliga· tion imposed by a statute. The college, or the Managing Com· mittee in question, is not a statutory body and so the argument of Mr. Setalvad that the case in hand will fall under the third excep- tion cannot be accepted. The contention of counsel that Court has sub silentio sanctioned the issue of a writ under Article 226 to quash an order terminating services of a teacher passed by a college similarly situate in Prabhakar Ramakrishna Jodh v. A. L. Pande and another( 1), and, therefore, the fact college or the managing committee was not a statutory body was r no hindrance to the High Court issuing the writ prayed for by the appellant has no merit as this Court expressly stated in the judgment ,that no such contention was raised in the High Court and so it cannot be allowed to be raised in this Court. I In this view of the matter, it is quite unnecessary to go into the question whether the appellant was . given sufficient opportu· G nity to meet the charges agamst him. We hold that the High Court was right in its view writ petition was incompetent. We, appeal but, in the circumstances, we make no order as to cos_ts. therefore, dismiss S. N. Appeal dismissed H (I) [1965] 2 $.C.R.. 7!3, (2) [1964] 3 S.CR. 6SS.