IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.01.2010 CORAM THE HON'BLE MR. JUSTICE S.MANIKUMAR W.P.No.5843 of 2001 P.Jeyachandran ... Petitioner vs 1. The Director of Technical Education, Chennai-25. 2. The Management of Annai Velankanni Polytechnic, Anguchettypalayam, Panruti 607 106. Cuddalore District. 3. The Correspondent, Annai Velankanni Polytechnic, Anguchettypalayam, Panruti 607 106. Cuddalore District. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the order of the third respondent, dated 10.08.2000, quash the same and direct the respondents to reinstate the petitioner as Librarian in the second respondent institution with full backwages, continuity of service and all other attendant benefits. For Petitioner ... Mrs.R.Gouri For 1st Respondent ... Mr.P.Subramanian, Addl. Govt. Pleader For Respondents 2 & 3 ... Mr.U.M.Ravichadran O R D E R Being aggrieved by the order of dismissal, dated 10.08.2000, passed by the Correspondent of Annai Velankanni Polytechnic, second respondent, the petitioner has filed the present Writ Petition. Consequently, he has prayed for a direction to the respondents to reinstate him as Librarian in the second respondent-Institution, with full backwages, continuity of service and all other attendant benefits. 2. Facts leading to the Writ Petition are as follows: The second respondent-Polytechnic has been established by Annai Velankanni Educational and Social Socieity for imparting education by conducting Diploma courses. By G.O.Ms.No.946, Education Department, dated 09.07.1996, the Government have granted permission to establish the second respondent-Polytechnic. Initially, on 07.10.1997, the petitioner was appointed as Lab Attender in the second respondent-Poytechnic. He is a Science Graduate with B.Ed., qualification and subsequently, he has passed M.A. (Tamil) and Post Graduate Diploma in Journalism and Certificate Course of Library and Information Science. Lateron, he was appointed as Librarian. During 1998, a dispute arose between the Members of the Educational Society, which resulted in a group of members, filing a suit against one Mr.A.Peter, who claimed to be the Correspondent of the second respondent-Polytechnic and for a declaration to declare that he is not entitled to hold the Office of Presidentship of the Society or in the alternative to remove him from the Office. The matter came on appeal before this Court in A.S.No.273 of 1994. During the pendency of the appeal, one Panduranga Chittiar, claiming himself to be the receiver of the second respondent-Polytechnic committed several misdeeds and the petitioner was one of the victims. The said Panduranga Chettiar, by order, dated 21.09.1998, without issuing notice and without affording any opportunity of hearing to the petitioner, terminated him from service. The petitioner as well as other teaching and non-teaching staff, have objected to the illegal order. Therefore, it was unconditionally withdrawn. Consequently, a charge memo, dated 10.06.1999, was issued to the petitioner, alleging certain acts of misconduct. Though an explanation was submitted, without considering the same in proper perspective, one Mr.S.Nagarajan, Advocate was appointed as an enquiry officer. On receipt of the enquiry notice, dated 14.06.1999, informing the petitioner that the enquiry proceedings would be commenced on 26.06.1999 at 3.00 P.M., the petitioner, by his letter, dated 23.06.1999, requested permission to engage an Advocate to assist him in the enquiry proceedings. A reminder, dated 06.07.1999 was also sent. However, his request was refused on 10.07.1999. Thereafter, the petitioner, by letter, dated 17.07.1999, requested for copies of documents and reiterated his earlier request for engaging an Advocate. Though the representation, dated 17.07.1999, was received by the enquiry officer on 20.07.1999, there was no further communication. Therefore, the petitioner was constrained to send a legal notice, dated 13.01.2000. But there was no response. The second respondent-Polytechnic, vide proceedings, dated 10.08.2000, informed the petitioner that he has been removed from service, in view of the fact that he had not come for compromise and therefore, the enquiry officer had proceeded with exparte and accordingly, given a report. Though the petitioner submitted an appeal, the Director of Technical Education, Chennai, first respondent, the said authority, by his letter, dated 11.02.2000, informed the petitioner that since the second respondent-Polytechnic is a self-financing polytechnic, they have no control over the teaching and non-teaching staff. Left with no other option, the petitioner has approached this Court for the relief as stated supra. 3. Assailing the impugned order, learned counsel for the writ petitioner submitted that when the Correspondent has relied on a report, said to have been submitted by the enquiry officer, on 02.06.2000, copy of the same ought to have been furnished to the writ petitioner, so as to enable him to submit his further representation on the findings. She further submitted that though the petitioner was alleged to have committed certain acts of misconduct, there is absolutely no oral and documentary evidence let in before the enquiry and that the enquiry officer has arbitrarily proceeded on the basis that since some of the persons had already come forward to compromise and when the petitioner had failed to appear, there was no need to wait for him and on that score, drawn up an exparte enquiry report. She further submitted that the approach of the enquiry officer is unknown to service jurisprudence and that there is total non-application of mind by the enquiry officer in arriving at the guilt of the petitioner, which has been blindly accepted by the second respondent-Polytechnic. 4. Learned counsel for the petitioner further submitted that both the enquiry officer as well as the second respondent have failed to adhere to the rudimentary principles of providing a fair and reasonable opportunity to the petitioner and therefore, the findings are wholly perverse. Taking this Court through the impugned order, she further submitted that the petitioner was not given any reply or information regarding refusal of engagement of an advocate in the enquiry proceedings and the permission to engage a co-worker. In the absence of any specific details in the impugned order, she submitted that it is manifestly clear that the petitioner was not given any opportunity and that the enquiry officer has erroneously and in a hurriedly manner, had drawn up the report and mere reading of the enquiry report, would show the hastiness in preparation of an adverse report against the petitioner. In support of her contention that non-furnishing of the copy of the enquiry officer's report, would amount to violation of the principles of natural justice, she placed reliance on the decisions in Hiran Mayee Bhattacharyya v. Secretary, S.M.School for Girls reported in 2002 (10) SCC 293, S.B.I., and others v. Arvind K.Shukla reported in 2001 (3) SCC 765, C.Masanam v. Chief Educational Officer, Madurai and another reported in 2000 Writ. L.R. 898 and M.Natanam v. The Assistant Commissioner, HR & CE, reported in 1999(III) CTC 657. 5. As regards the objections of maintainability of the Writ Petition, learned counsel for the petitioner submitted that the Writ Petition was filed in the year 2001 and now after eight years, the respondent-Polytechnic has raised an objection regarding the maintainability, which according to her, is liable to be rejected in limini for the reasons that Courts have consistently held that Writ against an unaided institutions is also maintainable. According to her, when violation of principles of natural justice are per se apparent, Courts have always entertained Writs, without driving the parties to take recourse to an alternative remedy, if there is any. In support of her contention, she placed reliance on the following decisions, viz., Ramdeo Baba Kamala Nehru Engineering College v. Sanjay Kumar reported in 2002 (10) SCC 487, John Paulraj A.P. v. CBSE, Chairman, New Delhi, reported in 1999 (III) LLJ (Supp.) 628, Sendhilkumar v. Shri Angalamman College of Engg., & Technology reported in 2009 (3) MLJ 774, L. Nageswaran v. State of T.N., reported in 2009 (1) MLJ 729 and The Governing Council of American College v. The Director of Collegiate Education, reported in 2009 (4) CTC 401. 6. Mr.U.M.Ravichandran, learned counsel for the respondent-Polytechnic, restricted his submission only with regard to maintainability of the Writ Petition on the ground that the second respondent- Institution is a self-financing institution, not a creature of any statute and therefore, that would not come under the ambit of "State or authority" and amenable to the Writ jurisdiction. He does not make any objections regarding violation of principles of natural justice. 7. Placing strong reliance on a decision of the Supreme Court in Executive Committee of Vaish Degree College, Shamli and others v. Lakshmi Narain and others reported in 1976 (2) SCC 58, learned counsel for the respondents submitted that the college, is neither created under any statute or owes its existence to any statute. According to him, merely because, the government have given permission to start a self-financing polytechnic, not in exercise of the powers under any statute, it cannot be brought within the ambit of State or Authority, under Article 12 of the Constitution of India. He further submitted that the respondent-Polytechnic, is an unaided institution and therefore, when the Director of Technical Education, Chennai, in his letter, dated 11.02.2000, has informed the petitioner that the Directorate has no role in the matter, relating to appointment, termination and other administrative functions, then the Government or any other authority have no pervasive control over the administration of the second respondent-Institution and therefore, it is not amenable to Writ jurisdiction. He also submitted that the decision in Andi Mukta Satguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R.Rudani and others reported in 1989 (II) LLJ 324, has been rendered by two Judges Bench of the Supreme Court, without considering the earlier decision of the Apex Court in Executive Committee's (cited supra), decided by a larger bench. 8. Learned counsel for the petitioner submitted that Executive Committee's case decided by three Judges Bench of the Supreme Court, was not taken note of by the Apex Court in Andi Mukha's case (cited supra), decided by two Judges Bench and therefore, the view expressed by the Larger Bench, so far as maintainability of the Writ Petition against a self-financed Institution, not created by a Statute has to be considered by this Court. 9. Placing reliance on a decision in Union of India v. K.S.Subramanian, reported in AIR 1976 SC 2433 and The State of U.P., v. Ram Chandra Trivedi reported in 1976 (4) SCC 52, learned counsel for the second respondent-Polytechnic, further submitted that as per law of precedents, when there is conflict between two views expressed, by the Supreme Court, the proper course for the High Court in such a case, would be to try and find out the opinion expressed by the Larger bench of the Supreme Court, in preference to those similar benches. Therefore, he insisted that the views expressed in Executive Committee's case (cited supra) has to be applied to the facts of this case, as it is appropriate. Heard the learned counsel for the parties and perused the materials available on record. 10. In view of the limited submissions, the only point to be considered by this Court is whether a Writ Petition against a self-financed college/polytechnic, not a creature of a Statute, is maintainable in law. If the answer if yes, then the Writ Petition has to be allowed on the ground of violation of principles of natural justice, as there is no dispute over the same. Let me consider some of the decisions of various Courts and Supreme Court, where the maintainability aspect has been considered. 11. In Executive Committee of Vaish Degree College, Shamli and others v. Lakshmi Narain and others reported in 1976 (2) SCC 58, the appellant-Executive Committee was a degree college in the district of Muzaffarnagar registered under the Societies Registration Act, 1860, as an institution for imparting education. The affairs of the college were managed by the Executive Committee of the Vaish College. The college was affiliated to the Agra University and consequently, the College was agreed to be governed by the provisions of the Agra University Act and the statutes and ordinances made thereunder. With the establishment of the Meerut University, the Vaish College got affiliated to the Meerut University. The College Committee terminated the services of a member of the College, by passing a resolution. A suit was filed in the District Munsif Court, challenging termination. The defence was that the Executive Committee was not a statutory body and not bound under the University Act. The suit was dismissed, holding that the Executive Committee was not a statutory body and not bound by the statutes. On appeal, the first Additional Civil and Sessions Judge, Muzaffarnagar, reversed the decision. In the second appeal, a learned Single Judge referred the case to Full Bench for framing the following issues, "Can the civil Court grant the relief of injunction in view of the facts and circumstances of the present case?". A Full Bench of the Allahabad High Court held that the Executive committee of Vaish college, being a statutory body, is bound by the provisions of the University and the statutes made thereunder. The Full Bench held that the termination of the members, without obtaining prior approval, as illegal. The Committee, which took the matter on appeal before the Supreme Court, inter alia contended that it was not a statutory body and therefore, the termination of the services of the respondent-employee would be governed by the usual master and servant relationship. The Supreme Court, while considering the distinction between a body, which is created by a Statute and a body, which after having come into existence is governed in accordance with the provisions of the Statute, held that, the Executive Committee is not a statutory body. 12. In the above reported judgment relied on by the learned counsel for the respondent-polytechnic, the issue as to whether a Writ Petition is maintainable against an institution, discharging public duty of imparting education, was not a question posed before the Supreme Court. The question adjudicated was, whether an Executive Committee of a private college was a statutory body or not, merely because, it was affiliated by the University or regulated by the University act or the Statutes thereunder. 13. In N.K.Ramiah v. Yadava Kalvi Nithi. Regd. Socy., reported in AIR 1985 Mad. 211, the issue was whether a private college committee consisting of seven members nominated by the Principal of the College, two senior most professors of the College and one nominated by the University, to which, it was affiliated and over whose affairs the Government had no control and the institution not being a creature of a statute, was an 'authority' within the meaning of Article 12 of the Constitution of India and amenable to Writ jurisdiction of the High Court. In the above said judgment, this Court held that, Merely because the College Committee was constituted by reason of the provision under Section 11 of the Tamil Nadu Private Colleges (Regulation) Act and in the manner provided by Rule 8 of the Rules framed under Section 53 of the Act would not mean that it was an instrumentality or agency of the Government, so as to be called an 'authority' within the meaning of the Article." Insofar as the above decision is concerned, there is absolutely no quarrel over the preposition that State Government is not having any direct control over the affairs of the College Committee and certainly, it is an instrumentality or agency of the Government. 14. In Andi Mukta Satguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R.Rudani and others reported in 1989 (II) LLJ 324, the appellant was a Science College run by a Public Trust, affiliated to Gujarat University. The dispute between the University Area Teachers Association and the University about implementation of pay scales was referred to the Chancellor of the University for decision. Instead of implementing the award of the Chancellor as accepted by the University and the State Government, the Trust served notice of termination on 11 teachers on the ground that they were surplus and applied to the University for permission to remove them. Since the Vice-Chancellor did not grant permission, the Trust took a decision to close down the college. Accordingly, the affiliation of the college was surrendered and that the college was closed without approval of the University. The services of all academic staff were terminated and the terminal benefits were not paid. A Writ petition was filed claiming terminal benefits and arrears of salary and that the writ petition was allowed. Hence, SLP was filed by the appellant-Trust. While considering the issue as to whether a Writ Petition would lie against the Management and College, a private body, the Supreme Court, at paragraphs 20 and 22, held as follows: "The words "any person or authority" used in Article 226 are therefore not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists, mandamus cannot be denied. (para 20) Mandamus cannot be denied on the ground that the duty to be enforced is not imposed by charter, common law, custom or even contract. Judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should no come in the way of granting that relief under Article 226. (para 22)" 15. While considering the objection regarding maintainability of a Writ Petition filed against the appellant, the Supreme Court, at Paragraphs 14 and 15, held as follows: "There is no plea for specific performance of contractual service. The teachers are not seeking a declaration that they be continued in service. They are not asking for mandamus to put them back into the college. They are claiming only the terminal benefits and the arrears of salary payable to them. 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 to mandamus. Once these are absent and when the party has no other equally convenient reedy, mandamus cannot be denied. To the Trust managing the affiliated college, public money is given as government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like Governmental Institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating university. Their activities are closely supervised by the University authorities. Employment in such Institution is not devoid of any public character. So are the service conditions of the academic staff. Their service conditions are not purely of a private character and such service conditions has super- added protection by university decisions creating a legal right duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused. (Paras 14 and 15) 16. In Miss Payal Gupta v. Lt. Governor of Delhi & others, 1994 III AD (Delhi) 1119, a Division Bench of the High court dealt with the case of a student who was denied of admission by a private school. While dealing with the objections regarding maintainability of the writ petition, the Division Bench held as follows: "The question whether a writ could lie against a recognised unaided school is no longer res integra. It was contended by Mr.Kaul that the Cambridge School was not a State and that it was run by a society registered under the Societies Registration Act. Jurisdiction of this Court under Article 226 of the Constitution is not confined to the authority which is a State within the meaning of Article 12 of the Constitution. In Kuldip Mehta Vs. Union of India and others, 1993 (2) Delhi Lawyers 196, this Court has taken the view that Article 226 also speaks of directions and orders which can be issued to any person or authority. In that case a writ was issued against a public limited company which had nominees on its Board of Directors from the National Textile Corporation Limited, a Government company. In Dwarka Nath Vs. Income-tax Officer, Special Circle D Ward, Kanpur and another, [AIR 1966 SC 81], referring to the scope of Article 226 of the Constitution, the court observed as under: "This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. it can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. In enables the High Courts to mould the reliefs to meet the peculiar and complicated requirement of this country. Any attempt to equate the scope of the power of the High Court under Art. 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicitly in the article and others may be evolved." 17. In Shri V.S.Rahi v. The Lt. Governor of Delhi & others [1994 IV AD (Delhi) 1190], A Division Bench of the Delhi High Court considered the question as to whether a teacher working in a private school can maintain a writ petition for pension. At Paragraph 5, the Division Bench held as follows: "Primarily two questions require to be considered; (i) Whether the petitioner can invoke the writ jurisdiction to seek a relief which is certainly against a private school; and (ii) Whether petitioner is entitled to the benefit of pension as contended by him. The first question need not detain us long in view of the decision of the Supreme Court in Miss Raj Soni Vs. Air Officer in charge Administration and Another, [1990 (3) SCC 261] in the said case, the Supreme Court entertained a petition filed by a teacher under Article 32 of the Constitution, against a private school which was not receiving any aid, to enforce the provisions of the Act and the Rules, and granted her the benefit of the age of retirement as 60 years, while, under the rules of the school she was to retire at the age of 58 years." 18. In Rakesh Gupta v. State of Hyderabad reported in AIR 1996 AP 413, the Division Bench of the Andra Pradesh High Court has considered the scope and extent of power under Article 226 of the Constitution of India and use of the word or expression "any person or authority" occurring under Article 226 of the Constitution of India. While discussing the scope of Article 226, the Court held as follows: "the language used in Art. 226 of the Constitution of India shows, that the Court has got power throughout the territories