ST. MARY’S EDUCATION SOCIETY & Anr. v. RAJENDRA PRASAD BHARGAVA & Ors.

From the Judgment and Order dated 15.12.2021 of the High Court of Madhya Pradesh at Indore in Writ Appeal No.485 of 2017. A B C D E F G H 306 SUPREME COURT REPORTS [2022] 8 S.C.R. A Pai Amit, Rohit R. Saboo, Ms. Pankhuri Bhardwaj, Advs. for the Appellants. Rupesh Kumar, Rajeev Sharma, Ms. Pankhuri Shrivastava, Ms. Neelam Sharma, Advs. for the Respondents. Rajendra Prasad Bhargava, in-person. The Judgment of the Court was delivered by J. B. PARDIWALA, J.

Leave granted.

This appeal is at the instance of a private unaided minority educational institution and its disciplinary committee, (respondents before the High Court) and is directed against the judgment and order dated 15.12.2021 passed by a Division Bench of the High Court of Madhya Pradesh, Bench Indore in the Writ Appeal No. 485 of 2017 by which the Division Bench set aside the judgment and order passed by a learned single Judge of the High Court and held that a writ petition filed by an employee of a private unaided minority educational institution seeking to challenge his termination from service is maintainable in law.

In the present appeal, two pivotal issues fall for consideration of this Court:- (a) Whether a writ petition under Article 226 of the Constitution of India is maintainable against a private unaided minority institution? (b) Whether a service dispute in the private realm involving a private educational institution and its employee can be adjudicated in a writ petition filed under Article 226 of the Constitution? In other words, even if a body performing public duty is amenable to writ jurisdiction, are all its decisions subject to judicial review or only those decisions which have public element therein can be judicially reviewed under the writ jurisdiction?

The aforesaid two questions, though not vexed, nevertheless despite plethora of case laws, always give rise to a debate. FACTUAL MATRIX

The appellant No. 1-Society runs a private unaided educational institution. The appellant No. 2 is the disciplinary committee constituted B C D E F G H ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD BHARGAVA [J. B. PARDIWALA, J.] 307 by the appellant No. 1-Society for the purpose of its internal management. The respondent No. 1 herein (original writ applicant before the learned single Judge) was serving as an office employee of the appellant No. 1. It appears from the materials on record that a show cause notice-cum- suspension order dated 08.09.2014 was issued by the appellant No. 1 herein to the respondent No.1 for the various alleged misconduct in service. The respondent No. 1 herein was thereafter issued a departmental chargesheet dated 08.12.2014 essentially on six grounds.

The statement of charges and allegations as contained in the chargesheet dated 08.12.2014 are as under:- “Charge I- That, you refused to receive and deposit the PTA fund from the lady teachers of the school on 4th August, 2014 and misbehaved with them. You talked to them rudely, loudly and your language was improper. Your refusal to receive and deposit the amount during the working hours is a gross misconduct and dereliction of your duty and act subversive of discipline. Charge-II- That, you are in habit of writing unwarranted letters to different authorities against the Principal of the school using very disrespectful, derogatory and offensive language, making false accusation which is spoiling the image and reputation of this school. Charge-III- That, you have threatened and pressurized the institution by closing your Bank Account in which your monthly salary was being deposited for the last so many years.

The respondent No. 1 herein challenged the order of termination on various grounds in appeal before the Disciplinary Committee of the appellant No. 1. The appeal was filed by the respondent No. 1 herein under Rule 49 of the CBSE Affiliation Byelaws. The Disciplinary Committee consisted of (i) Sr. M. Deepa, Chairman, (ii) Sr. M. Georgina, School Manager, (iii) S.N. Purwar, Advisor CBSE Nominee, and (iv) Sadhna Paranjape, School Managing Committee Member. The appeal was ordered to be dismissed by the Disciplinary Committee, the appellant No. 2 herein, vide order dated 23.09.2016. G H ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD BHARGAVA [J. B. PARDIWALA, J.] 309

In view of the aforesaid, the respondent No. 1 invoked the writ jurisdiction of the High Court under Article 226 of the Constitution of India. In the writ petition, the respondent No. 1 arrayed the following five respondents:-

1. Union of India

2. Central Board of Secondary Education

3. St. Mary’s Education Society

4. Disciplinary Committee of the School

5. Mr. T.R. Lapalikar (retired Deputy Labour Commissioner appointed as Enquiry Officer)

It is pertinent to note that despite the above five respondents being arrayed as aforestated, the principal relief sought in the writ petition filed by the respondent No. 1 herein was to set aside the order dated 23.09.2016 passed by the Disciplinary Committee of the school and to set aside the order of termination dated 08.05.2015 passed by the appellant No. 1 herein. In other words, the respondent No.1 herein sought writ in the nature of certiorari to be issued against the private unaided minority institution. It may not be out of place to state at this stage that no relief was sought against the Union of India, respondent No. 2 herein and the Central Board of Secondary Education (CBSE), respondent No. 3 herein.

The appellants herein raised a preliminary objection before the learned single Judge of the High Court on the maintainability of the writ petition filed by an employee of a private unaided minority institution.

The learned single Judge of the High Court upheld the preliminary objection raised by the appellants herein and rejected the writ application as not being maintainable. While rejecting the writ application vide order dated 10.07.2017 on the ground of not being maintainable in law, the learned single Judge held as under:-

So far as the judgment in the matter of K. Krishnamacharyulu (supra) relied upon by the petitioner is concerned, in that case in respect of teachers duly appointed to a post in the private institution, it has been held by the Supreme Court that when an element of public interest is created and institution is catering to that element, the teacher, the arm of the institution is also entitled to avail of remedy provided under A B C D E F G H 310 SUPREME COURT REPORTS [2022] 8 S.C.R. Article 226. In the present case, petitioner is not a teacher but is a member of clerical staff being L.D.C., hence he is not entitled to the benefit of that judgment. So far as the judgment in the matter of Frank Anthony Public School Employees Association(supra) is concerned, that was a case where the teachers had approached the court for writ of mandamus seeking equalisation of their pay scales and condition of service with those of their counterparts in government schools and in that context it was observed that ‘the management of a minority Educational institution cannot be permitted under the guise of the fundamental right guaranteed by Article 30(1) of the Constitution, to oppress or exploit its employees any more than any other private employee, therefore the said judgment is distinguishable on its own facts. Similarly the benefit of Single Bench judgment of this court in the matter of Mrs. Kirti Bugde (supra) cannot be granted to the petitioner because in that judgment the petitioner was a teacher and a member of the academic staff but that is not so in the present case. Having regard to the aforesaid, I am of the opinion that writ petition filed by the petitioner for issuance of writ of certiorari against the action of respondent No.3 which is a private unaided institution is not maintainable under Article 226 of the Constitution of India, which is accordingly dismissed, however with a liberty to the petitioner to avail such other remedies as are available in the law.

Being aggrieved with the aforesaid judgment and order passed by the learned single Judge of the High Court, the respondent No. 1 herein went in appeal under Section 2(1) of the M.P. Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005. The Division Bench of the High Court thought fit to set aside the judgment and order passed by the learned single Judge and allowed the appeal holding that the writ application filed by the respondent No.1 herein against the appellants herein challenging the order of termination from service was maintainable under Article 226 of the Constitution. The appeal Court remitted the matter to the learned single Judge for being considered on its own merits. A B C D E F G H ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD BHARGAVA [J. B. PARDIWALA, J.] 311 The Division Bench, while allowing the appeal filed by the respondent No. 1 herein, held as under:- A “11. Since all the aforesaid previous judgments have been considered, the judgment of Marwari (supra) is a binding precedent. The present appellant was terminated from a private institution. In Marwari (supra) and Ramesh Ahluwalia (supra) also the termination of Teacher/Officer was called in question in a writ petition. As per this judgment, the writ petition is maintainable. A division bench of this Court in Yogendra Singh Dhakad Vs. Delhi Public School Society & Ors. 2014 SCC OnLine MP 162 has also taken the same view. So far as the judgment of Supreme Court in Executive Committee of Vaish Degree College, Shamli & Ors. Vs. Lakshmi Narain & Ors. (1976) 2 SCC 58 is concerned, it is not applicable to the present case as it did not arise out of a writ petition.

12. Considering the aforesaid, order of learned Single Judge dated 10.07.2017 passed in WP No.1052/2017 is set aside. The writ petition is restored to its original number. We have no doubt that writ court shall make every endeavor to decide the petition expeditiously preferably within two months.

The writ appeal is allowed to the extent indicated above.”