V.C. Baskar v. The Project Director/Member Secretary, Tamil Nadu State Aids Control Society

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 08.09.2009CORAM:THE HONOURABLE MR. JUSTICE S. NAGAMUTHUWrit Petition No.11079 of 2009 andM.P.No.1 of 2009V.C.Baskar ..Petitioner VsThe Project Director/Member Secretary,Tamil Nadu State Aids Control Society,Egmore, Chennai – 600 008. ..RespondentWrit Petition filed under Article 226 of the Constitution ofIndia for a writ of Certiorari calling for the records relating tothe order passed by the respondent in Proc.No.5585/A-14/ICTC/TANSAC/2008 dated 08.06.2009 and quash the same. For Petitioner : Mr.S.conscious IlangoFor Respondents : Mrs.R.Rathna TharaORDER By consent of the learned counsel for both parties, the writpetition itself is disposed of.2.The Tamil Nadu State Aids Control Society (TANSACS), therespondent herein, is a society registered under the Registration ofSocieties Act, 1975 vide registration No.167 of 1994. The object ofthe society is to prevent and control HIV/AIDS and to provide care,support and treatment to people living with HIV/AIDS (PLHAs). TheProject Director, South India Aids Action Programme by her letterdated 09.08.1997 appointed the petitioner as a Counsellor and placedhim at Government Hospital, Hosur. His stipend was fixed atRs.1,500/- per month during the training period. It was made clearthat on satisfactory completion of probationary period, he would beconfirmed as full time trainee on condition that he agreed to sign aservice contract for two years. In pursuance of the said appointmentorder, the petitioner joined service on 12.09.1997. By order dated10.03.1999 issued by the Office of the Medical Officer, GovernmentHospital, Hosur, the petitioner was transferred and posted to the https://hcservices.ecourts.gov.in/hcservices/ Government Head Quarters Hospital, Dharmapuri. In the said order itis stated as follows:-“With reference to the letter cited, ThiruV.C.Baskaran Counsellor posted to the STDDepartment of this Hospital has been transferredand posted to the Government Head QuartersHospital, Dharmapuri. Hence, Thiru. V.C.Baskarancounsellor of this Hospital is relieved off hisduties on the after Noon of 10.03.1999 and he isinstructed to report for duty at Government HeadQuarters Hospital, Dharmapuri forthwith.”3.But obviously, the said order relieving the petitioner fromGovernment Hospital, Hosur was issued in pursuance of the transferorder issued by the Programme Director of SIAAP, Chennai by letterdated 03.03.1999. Accordingly he joined the Government Head QuartersHospital, Dharmapuri.4.While, he was working in TANSACS, the Project Directorissued a show cause notice in reference letter NO.6019/ICTC/AIDS/2008dated 27.07.2008 making certain allegations against the petitioner inthe performance of his duties. The petitioner submitted hisexplanation for the same on 01.08.2008 denying all the allegations.Subsequently, the Project Director/Member Secretary, TANSACS, by hisproceeding in Proc.No.10166/AIDS/ICTC.A-17/2009 dated 01.04.2009issued an order of transfer transferring the petitioner fromDharmapuri and posted him as Counsellor, Magudanchavadi Public HealthCentre, Salem as against an existing vacancy. 5.Subsequently, an enquiry into the allegations as mentionedin the show cause notice was ordered and a Team of Officialsconducted an enquiry on 10.10.2008 and 11.10.2008. The enquiry teamsubmitted a report confirming the allegations made against thepetitioner as true. Based on the same, the respondent by hisproceedings in Proc.No.5585/A-14/ICTC/TANSACS/2008 dated 08.06.2009dis-continued the petitioner from service. Challenging the same, thepetitioner has come forward with the present writ petition.6.It is mainly contended by the petitioner that the petitioneris a regular employee of the respondent society and his salary wasalso paid by the respondent society. It is further submitted thatbefore passing the order of termination, no charge memorandum wasissued, no enquiry was held into the charges and no opportunity wasgiven to the petitioner and thus, there is violation of principles ofnatural justice. Therefore, according to the petitioner, the impugnedorder is liable to be set aside.7.In the counter filed by the respondent, a preliminaryobjection has been raised in respect of the maintainability of the https://hcservices.ecourts.gov.in/hcservices/ writ petition. According to the respondent, since the respondent is asociety registered under the Registration of Societies Act, 1975;since the same does not draw any financial assistance from theGovernment and since it is neither a state nor a stateinstrumentality in terms of Article 12 of the Constitution of India,the writ petition is not maintainable.8.But it is contended by the petitioner that the StateGovernment has got pervasive control over the respondent society andtherefore, the writ petition is maintainable. The learned counsel hasproduced two Government Orders in G.O.Ms.No.321 Health and FamilyWelfare (EAP1/2) Department dated 29.09.2008 and G.O.Ms.No.132 Healthand Family Welfare (EAP1/2) Department dated 27.04.2009 to establishthat the Government has got deep pervasive control over the affairsof the respondent society. The learned counsel has also brought tothe notice of this Court that the society is administered by anExecutive Committee which consists of an I.A.S., officer who is theProject Director appointed by the Government and several otherGovernment officials. Thus, every function of the society iscontrolled by the Government through its officials and therefore, therespondent is a state instrumentality amenable to the writjurisdiction of this Court, it is contended. 9.Before going into the facts of the case, it has becomenecessary for this Court to analyse the law on the subject relatingto the maintainability of the writ petition. Ofcourse, it has beenwell settled in a catina of decisions of the Hon’ble Supreme Court aswell as this Court that the societies, in general, governed by aState, or, central statute are amenable to writ jurisdiction as thesame cannot be termed either as state or as state instrumentalitiesin terms of Article 12 of the Constitution of India. 10.But, the Hon’ble Supreme Court in Ajay Hasia v. Khalid,(1981 (1) SCC 722)'s case has formulated certain tests to findwhether a society governed by the Societies Registration Act can bebrought within the purview of the writ jurisdiction of the HighCourt. One of the tests is whether the Government has got pervasivecontrol over the affairs of the society. If the answer isaffirmative, according to the Hon’ble Supreme Court, the society isamenable to writ jurisdiction. Applying the said tests to the factsof the present case, now we have to see whether the Government ofTamil Nadu has got pervasive control over the respondent society. 11.As rightly pointed out by the learned counsel for thepetitioner, the respondent society is headed by an officer in thecadre of Indian Administrative Service appointed by the Government ofTamil Nadu. The members of the committee headed by an I.A.S.,officer, are mostly the officials drawn from the Government. Onlysome are Non Governmental Organisation’s (NGOs). All the decisions,more particularly, the policy decisions are taken by the Committee https://hcservices.ecourts.gov.in/hcservices/ only with the approval of the Government about which, there can be nodispute. Apart from that, the society has got his own service Rulesin respect of its employees. The said service rules was approved bythe Government in G.O.Ms.No.321 Health and Family Welfare (EAP1/2)Department dated 29.09.2008 and G.O.Ms.No.132 Health and FamilyWelfare (EAP1/2) Department dated 27.04.2009. The said service Ruleswas also amended. If the society has got no pervasive control of theGovernment, there would have been no need for the society to get theservice rules approved by the Government. The very fact that theservice rules has been approved by the Government and the very factthat most of the officials who are managing the affairs of thesociety are Government Officials, there can be no difficulty inholding that the Government has got pervasive control over therespondent. 12.It is strenuously contended by the learned counsel for therespondent that the respondent society is not funded by theGovernment and the same is funded only by an internationalorganisation. It is further stated that if once said funding isstopped then the society would be wound up. Therefore, according tothe learned counsel for the respondent, the respondent society is notamenable to writ jurisdiction. I find no merit in the saidcontention. 13.In Ajay Hasia’s case (cited supra), ofcourse, the Hon’bleSupreme Court has held that one of the tests to find whether asociety is amenable to the writ jurisdiction or not depends upon theGovernment providing major funds to the society. If the society drawsfinancial assistance from the Government, according to the testspropounded by the Hon’ble Supreme Court, in the said judgement, itgoes without saying that the said society is amenable to writjurisdiction. But it is not always necessary to bring the societywithin the ambit of Article 12 of the Constitution of India that thesociety should be funded by the Government. Even private bodies whichare doing public functions are amenable to writ jurisdiction. It isthe well settled position of law. As per one of the tests in AjayHasia’s case, in the case on hand, on facts, I am able to find thatthe respondent society is controlled by all means by the Governmentand hence, I have to necessarily hold that it falls within Article 12of the Constitution of India so as to become amenable to Article 226of the Constitution of India. 14.In K.Marappan v. The Deputy Registrar of Co-operativeSocieties Namakkal Circle, Namakkal and another, (2006 (4)) CTC: 689)while dealing with a society governed by the Tamil Nadu Co-operativeSocieties Act, a Larger Bench of this Court has referred to the lawlaid down in Ajay Hasia’s case and as a matter of fact, in the saidcase, the Larger Bench has gone to the extent of saying that even inrespect of a co-operative society, in general, though it would not bebrought under the purview of the writ jurisdiction of the High Court, https://hcservices.ecourts.gov.in/hcservices/ in the event of allegations of violation of statutory Rules, thesociety shall be made amenable to writ jurisdiction. 15.Subsequently, in Ananda Sayanam vs The Joint Registrar ofCo-opertaive Society (2007(5) CTC:1) a Full Bench of this Court hasgone to the extent of clarifying that in the event of violation offundamental a right of an individual on the part of the society,though the society cannot be otherwise brought under the purview ofArticle 12 of the Constitution of India, still the said society isamenable to writ jurisdiction in such circumstances. 16.The learned counsel for the respondent would rely on ajudgement of this Court in C.R.Mugundan and others v. DirectorGeneral (Member Secretary), Indian Council of Medical Research, NewDelhi and others (CDJ 1996 MHC 451) wherein, Hon’ble JusticeA.R.Lakshmanan (as he then was), has extensively gone into a similarquestion and after having considered that the society in question wasadministered by an officer drawn from the Government and by acommittee consisting of many of the officers of the Government,ultimately held that the said society is amenable to writjurisdiction. 17.Similar view has been taken by Hon’ble Justice P.Sathasivam(as he then was) in another judgement in Dr.E.Johnson v. Salim AliCentre for Mrnithology and Natural History, Coimbatore (2002 (3)M.L.J 441). In view of the well settled position of law as propoundedin all the above judgements, I have no hesitation to hold that sinceon facts, I am convinced that the Government of Tamil Nadu has gotpervasive control over the respondent society, it is amenable to writjurisdiction. 18.The learned counsel for the respondent would further relyon a judgement of the Hon’ble Supreme Court in State of Assam v.Barak Upatyaka d.u karmachari sanstha (2009 (5) SCC 694) wherein, ithas been held that in respect of employees of Co-operative societiesfor claiming wage arrears, the remedy available for such employees isonly to approach the Labour Court and not to file a writ petitionunder Article 226 of the Constitution of India. In my consideredopinion, the said judgement has got no relevance to the factsinvolved in the present case. That was a case where, admittedly, thesociety could not be brought under the ambit of Article 12 of theConstitution of India and that is the reason why the Hon’ble SupremeCourt was to hold that the remedy available for the employees was toapproach only the Labour Court. But in the case on hand, as I havealready concluded, in view of the pervasive control of the Governmentover the respondent society, the same is to be necessarily broughtwithin the writ jurisdiction of this Court. 19.The learned counsel for the respondent would rely on yetanother judgment in Haryana Rajya Sainik Board cum Defence & Security https://hcservices.ecourts.gov.in/hcservices/ Relief Fund v. Mohan Lal (2008 (10) SCC 133) wherein, the Hon’bleSupreme Court has held that the said society is not amenable to writjurisdiction. Here again, the facts are distinguishable. The questionwhether the said society was amenable to writ jurisdiction or not wasnot raised in the said case. That was a case where as against theLabour Court award, a writ petition was filed and finally it wastaken up before the Hon’ble Court by way of Civil Appeal. Therefore,the said judgement also does not help the respondent to advance hiscase. For the foregoing reasons, I reject the contention of therespondent that the writ petition is not maintainable.20.Now, coming back to the facts of the present case, it iscontended by the learned counsel for the respondent that thepetitioner was not at all appointed by the respondent but he wasappointed only by one Project Director of South India Aids ActionProgramme. He relies on the appointment order dated dated 09.08.1997issued by Ms.Shyamala, Project Director. But the learned counsel forthe respondent would fairly concede that subsequently, when the NonGovernmental Organisation failed to pay salary to the petitioner, thesalary was paid by the respondent society continuously to thepetitioner. A perusal of the records would go to show that thepetitioner was transferred by the respondent on two occasions; theshow cause notice was issued by the respondent; enquiry was held by aTeam of Officials nominated by the respondent and the order oftermination was also issued by the respondent. If I have to acceptthe argument of the learned counsel for the respondent, that thepetitioner was not an employee of the respondent society, then I haveto necessarily get explanation from the learned counsel for therespondent as to how all these proceedings were initiated by therespondent as against the petitioner. The very fact that the aboveproceedings, like transfer, show cause notice, enquiry andtermination order, were issued by the respondent would go to showthat the petitioner was an employee of the respondent society only.If the petitioner was not an employee of the respondent, there wouldnot have been any occasion for the respondent to terminate thepetitioner from service. 21.The main contention of the petitioner is that beforeissuing the termination order, no charge memorandum was issued and noopportunity was given to him. I find every force in the saidargument. Admittedly, there was no charge memorandum issued, noenquiry was held and no opportunity whatsoever was given to thepetitioner to defend the charges. Thus, there is gross violation ofprinciples of natural justice. It has been well settled by theHon’ble Supreme Court (vide 1991 Supp (1) SCC :600) that theprinciples of natural justice forms part of the fundamental rightguaranteed under the Constitution of India more particularly underArticle 14 of the Constitution of India. When there is violation,certainly, it is for this Court to interfere and to extend its arm tothe aggrieved under Article 226 of the Constitution of India. https://hcservices.ecourts.gov.in/hcservices/

22.In view of all the above, the writ petition is allowed andthe impugned order is set aside. However, liberty is given to therespondent to initiate appropriate disciplinary proceeding and thenpass final order after affording sufficient opportunity to thepetitioner. No costs. Consequently, connected miscellaneous petitionis closed. Sd/Asst.Registrar/true copy/jbmSub Asst.RegistrarTo The Project Director/Member Secretary, Tamil Nadu State Aids Control Society, Egmore, Chennai – 600 008.+ 1 c.c. to Mr. S. Conscious Ilango, Advocate. S.R.No.45001.+ 1 c.c. to M/s. R. Rathna Thara, Advocate. S.R.No.45004.W.P.No.11079 of 2009TS (CO)GSK 30.09.2009.