IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 23/08/2002 Coram The Hon'ble Mr. Justice P. SATHASIVAM Writ Petition No. 1454 of 1996 and Writ Petition No. 1784 of 1996 and Writ Petition No. 1842 of 1996 and W.M.P.No. 2262 of 1996 Dr. E. Johnson ..Petitioner in W.P.1454 of 96 Dr. Mathew K. Sabastian ..Petitioner in W.P.1784 of 96 Dr. C.P. Geevan ..Petitioner in W.P.1842 of 96 -Vs- 1. Salim Ali Centre for Ornithology and Natural History represented by its Member Secretary, Kalampalayam (P.O), Coimbatore - 641 010. 2. Dr. V.S. Vijayan, Director, Salim Ali Centre for Ornithology and Natural History, Kalampalayam (PO), Coimbatore - 641 010. ... Respondents in all WPs. Petitions under Article 226 of the Constitution of India, for issuance of Writs of Certiorarified Mandamus as stated therein. For petitioner in all W.Ps. : Mr. K. Chandru, Senior counsel for Mr. R. Yashod Vardhan. For respondents in all W.Ps.: Mr. R. Muthukumaraswamy, Additional Advocate General for Mr. P.D. Adikesavalu. :COMMON ORDER Since common issue is raised in these Writ Petitions, they are being disposed of by the following common order. Aggrieved by the proceedings of Salim Ali Centre for Ornithology and Natural History - first respondent herein dated 30-01-1996, extending his period of Probation for six months with effect from 24-01-96, Dr. E. Johnson-petitioner has filed W.P.No. 1454 of 96 to quash the said order and consequently forbear the respondents from treating him as a probationer. 2. Aggrieved by the proceedings of the very same Institution dated 30-01-96, terminating their Probation and discharging them from the services of Salim Ali Centre for Ornithology and Natural History-first respondent, Dr. Mathew K. Sabastian and Dr. C.P. Geevan, petitioners have filed W.P.Nos. 1784/96 and 1842/96 respectively to quash those proceedings and consequently direct the respondents to reinstate them in service with backwages, continuity of service and all other attendant benefits. 3. The common facts applicable to all the three writ petitions are briefly stated hereunder: Salim Ali Centre for Ornithology and Natural History ( hereinafter referred to as "SACON")-first respondent Society herein is a body registered under the Society Registration Act and it is an organisation set by the Central Government, Ministry of Environment and Forest and it is completely controlled by the Central Government. In the Governing Council of the said institution there are nominees of the Central Government including the Secretary of the Ministry of Environment and Forest, Education Department of Maharashtra and various other Government sponsored bodies. The major activity of the Society is to develop the institution in the fields of Ornithology and Natural History, conducting research in related fields and conducting courses to students leading to the Post Graduate degree (M.Sc.,) and research degrees such as M.Phil., and Ph.D. It is a State within the meaning of Article 12 of the Constitution of India. For carrying out its activities, the first respondent has appointed number of persons drawn from various fields. Till this date, the first respondent had not framed rules relating to the service conditions of its employees and in its meeting held on 28-5-92, it had adopted the Government of India Rules and Regulations in the matter of service conditions of its employees. As per the by-laws of the society, the Governing Council is solely in charge of framing rules relating to creation of post, tenure, emoluments, allowances, Rules of Discipline and other conditions of officers and staff of the society. 4. Before coming to the first respondent Society, the petitioner in W.P.No. 1454/96 was working as a Librarian in the Central Marine Fisheries Research Institute at Ernakulam with effect from 3 -11-69. He had served in the institution till 5-3-1992 during which time he had several promotions and his final posting was that of a Technical Officer. After coming to know about a vacancy for the post of Librarian in the first respondent institute, he made an application dated 22-11-91 offering his service to the said post. He was called for an interview on 4-2-92 by the first respondent and on being successful in the interview, he was given an offer an appointment dated 19-2-92 for the post of Librarian in the first respondent institution. He accepted the offer and accordingly resigned his post with the central Marine Fisheries Research Institute, where he had worked for 23 years. He joined the first respondent on 9-3-94. His probation period was fixed for 2 years from the date of joining the post and the period of probation may be extended at the discretion of the competent authority. 5. The petitioner in W.P.No.1784/96, before coming to work in the first respondent centre, was working as a Senior Research Assistant in the Central Silk Board from December, 1987 till 16-11-9 3 in a permanent post. He had worked in its various stations at West Bengal, Kerala and Mysore. After coming to know about a vacancy for the post of Extension Officer in the first respondent Institute, he made an application dated 23-8-93. He was called for an interview on 13-10-93 and on being successful, he was given an offer of appointment dated 19-10-93. After resigning his post, he joined duty in the first respondent centre on 17-11-93. He was on probation for a period of two years from the date of his joining the post and the period of probation may be extended at the discretion of the competent authority. 6. The petitioner in W.P.No.1842 of 96, before coming to work in the first respondent, he was working as Scientist in the National Information Centre Headquarters attached to the Planning Commission, Government of India and he had put in more than 5 years of service. After coming to know about a vacancy for the psot of System Analyst in the first respondent Institute, he made an application dated 29-11-91. He was called for an interview on 3-2-92. On being successful, he was given an offer of appointment dated 19-2-92 for the post of System Analyst. After resigning his previous post, he joined the first respondent institution on 1-5-92. After his joining, by an order dated 27-3-93, his post was redesignated as senior Scientist. He was on probation for a period of two years from the date of his joining the post and the period of probation may be extended at the discretion of the competent authority. 7. In all these 3 writ petitions, it is stated that the second respondent-Dr. V.S. Vijayan, Director of SACON, in the absence of any serious supervision by the Governing Council, turned the institution as his personal fiefdom and packed the institute with officers for his choice regardless merit and devoid of any contribution to the subject for which the institution was founded. As a first step, he brought his own wife-Mrs. Lalitha Vijayan to the Institution and made her as a Senior Scientist. The persons working in the Institution never had any forum to ventilate their grievances and whenever there was a problem with the second respondent, they had no one to look towards for expressing their grievances. While so, one Dr. Davies Frank Singh, who was working as Senior Scientist, unable to bear the harassment given by the second respondent, ended his life in tragic circumstances on 22/23 May, 1995. When he made an offer to go to United Kingdom for attending a training programme in a leading Institution, the second respondent unable to control his petty jealosy suspended him on the morning of 22-5-95 that too on flimsy grounds. The tragic death of a senior scientist in the first respondent Institution gave a real shock to the staff and officers working in the Institution and the death was widely reported in the Newspapers. The wife of the deceased Dr. Davies Frank Singh made a complaint to the Police against the second respondent and a F.I.R. was registered based on her complaint. Pursuant to the complaint, the police visited the Institute and recorded statements from number of Scientists. The statements were also recorded from all the 3 petitioners. All the staff and Scientists including the petitioners applied for Casual Leave on 23-5-95 and 24-5-95 to register their protest and they also signed a petition demanding for replacement of the second respondent. Based on their representation, the Ministry of Environment and Forest was requested to depute a suitable officer to make a visit to the Institute. The Governing Council sent M/s. S.K. Mukarjee and J.C. Daniel to visit Coimbatore to assess the situation. They came to know that the committee submitted a report dated 23-8-95 and the same was forwarded to the Governing Council. The Governing Council instead of disclosing the report and considering the grievance expressed by the petitioner and other Scientists and staff, gave full powers to the 2nd respondent to deal with them. Taking note of the fact that the petitioners actively participated by raising voice against the second respondent, though the petitioner in W.P.No. 1454/96 had completed his probation period of 2 years as early as 8-3-94, no formal order was given to him confirming his services. During his probation, he had never received any memo or show cause notice and his conduct and character were entirely to the satisfaction of his superiors. The second respondent formed an assessment committee comprising of 4 members of which 3 members belonged to the Governing Council including Mr. J.C. Daniel, who earlier expressed a threat to the petitioner-Dr.E. Johnson. He appeared before the committee on 11-12-95. He was not informed of the remarks of the committee. However, the first respondent gave an order dated 30-1-96 , stating that the Governing Council had decided to extend his probation for 6 months with effect from 24-1-96. Aggrieved by the same, Dr. E. Johnson has filed the first writ petition viz., W.P.No.1454 of 9 6. For the same reasons and in view of their active involvement in raising voice against the second respondent with regard to the death of Dr. Davies Frank Singh, Senior Scientist, the probation in respect of the petitioners in W.P.Nos. 1784 and 1842/96 was not extended and they were discharged from the services of SACON. 8. On behalf of the respondents, 2nd respondent has filed a counter affidavit in Writ Petition No. 1454 of 96 wherein it is stated that SACON is a society registered under the Societies Registration Act. It is an autonomous Non-Governmental Organization. It was promoted by the Bombay Natural History Society (in short "BNHS"), which is yet another autonomous Non-Governmental Organization and a registered Society. The SACON is governed by its own Memorandum of Association and Rules and Regulations framed by the SACON Society. The principal object of the Society is to "develop an institution of excellence in the fields of Ornithology and Natural History". SACON has a large number of research projects in various parts of India including the Andaman and Nicobar Islands. As per the Rules and Regulations of the SACON Society, the Governing Council is the executive organ of the Society and shall function under the direct supervision and control of the Society. The Society inter alia has the power to frame, amend or repeal the rules for the administration of the affairs of the Society. The Governing Council inter alia has the power to frame, to amend or repeal the bylaws governing creation of posts, terms and tenure of appointments, rules of discipline and other conditions relating to the employees. The employees appointed in the SACON were placed on probation for a period of two years. The appointment orders indicated that the period of probation may be extended at the discretion of the competent authority. It was also cited that the failure to complete the period of probation to the satisfaction of the competent authority will render the employees to be discharged from the services of SACON. No orders had been passed declaring the probation of the employees including the writ petitioner. At the meeting of the Governing Council held on 24-1-96, the Governing Council considered the question of declaration of probation of 11 scientists working in SACON. After a discussion and based on an overall assessment of the work and conduct of each of the scientists, it was decided that eight of them should be confirmed. In respect of Dr. Geevan and Dr. Mathew K. Sebastian, it was decided that their probation should be terminated. In the case of Dr. E. Johnson, it was decided that his probation should be extended for six months from the date of the meeting, viz.,, 2 4-1-1996. The impugned orders are not mala fide and the same were taken by the Governing Council. The very same 2nd respondent has filed a common counter affidavit in W.P.Nos. 1784 and 1842 of 96 wherein it is stated that the first respondent is a Society registered under the Societies Registration Act and it is an autonomous nongovernmental organization not controlled by any Government, including the Government of India. The first respondent is a private body and not a State within the meaning of Article 12 or Article 226 of the Constitution of India and as such the writ petitions filed under Article 226 of the Constitution of India, which are directed against the first respondent's orders are not maintainable. The merits of the orders have not been traversed in the counter affidavit. 9. In the light of the above pleadings, I have heard Mr. K. Chandru, learned senior counsel for the petitioners in all the writ ppetitions and Mr. R. Muthukumaraswamy, learned Additional Advocate General for respondents. 10. Mr. K. Chandru, learned senior counsel for the petitioners, after taking me through the Rules and Regulations, by-laws of the first respondent Society, initial appointment order, the details regarding the death of Dr. Davies Frank Singh, Senior Scientist and the impugned orders, would contend that the impugned orders were made out of the mala fide motive of the Governing Council and at the instance of the second respondent. He further contended that inasmuch as the petitioner in W.P.No. 1454/96 had completed his probation as early as 8-3-94, the extension of his probation cannot be taken after two years. He further contended that the impugned orders in W.P.Nos. 17 84 and 1842/96 expressly caused stigma against the petitioners therein; hence it is punitive in character. The petitioners were not given any opportunity to put-forth their views before their discharge and the same is opposed to the principles of natural justice. On the other hand, Mr. R. Muthukumaraswamy, learned Additional Advocate General, by pointing out the Memorandum of Assessment, Rules and Regulations of the first respondent Society, would contend that SACON is a private body and not a State or an authority within the meaning of Article 12 of the Constitution of India, as such the Writ Petitions which are directed against the first respondent's orders are not maintainable and liable to be discharged. In any event, according to him, since the impugned orders were passed by the Governing Council, which is the competent authority, after considering all the relevant materials, there is no merit in the claim of the petitioners. 11. I have carefully considered the rival submissions. 12. First I shall consider the main question, namely, whether the first respondent-SACON is a State or an Authority within the meaning of Article 12 of the Constitution amenable to jurisdiction under Article 226 of the Constitution of India; and whether the writ petitions directed against the first respondent's orders are maintainable? 13. Mr. K. Chandru, learned senior counsel for the petitioners, has relied on decisions, namely, (1) B.S. MINHAS v. INDIAN STATISTICAL INSTITUTE (1984 (1) L.L.J. 67) (2) P. K. RAMACHANDRA IYER v. UNION OF INDIA (1984 (1) L.L.J. 314) (3) MADRAS LABOUR UNION v. BINNY LTD. (1995 (1) L.L.J. 687) (4) V. SADASIVAM v. BINNY LTD. (1998 (1) L.L.J. 349) (5) CHEMPLAST SANMAR LTD. v. METTUR CHEMICALS PODHU THOZHILALAR SANGAM (1999 Vol.95 FJR 527) (6) U.P. STATE COOPERATIVE LAND DEVELOPMENT BANK v. CHANDRA BHAN DUBEY ((1999) 1 SCC 741) in support of his claim that the first respondent Society is a State within the meaning of Article 12 of the Constitution; accordingly the writ petitions are maintainable. I shall consider those decisions one by one. 14. In 1984 (1) L.L.J. 67 (cited supra) the question raised before the Supreme Court was whether Indian Statistical Institute which is a Society registered under the Societies Registration Act is an authority within the meaning of Article 12 of the Constitution? The Indian Statistical Institute is a Society registered under the Societies Registration Act. It is wholly financed and controlled by the Union of India. A writ petition was filed under Article 32 of the Constitution of India challenging the appointment of the Director of the Institute. The Supreme Court, after analysing the issue and while rejecting the contention that writ is not competent and maintainable against the Indian Statistical Institute, has held that " Having regard to the decision in Ajay Hasia Etc. v. Khalid Mujib Sehravardi and others (1981-1 L.L.J. 103) and in view of the facts and circumstances of the case there can be no doubt that Indian Statistical Institute is an authority within the meaning of Article 12 of the Constitution and therefore, writ petition is competent in maintenance and the objection raised cannot be accepted. 15. In 1984 (1) L.L.J. 314 (cited supra) the question posed before the Supreme Court was whether Indian Council of Agricultural Research ('ICAR' for short) and its affiliate Indian Veterinary Research Institute ('IVRI' for short) are instrumentality of the State and amenable to writ jurisdiction. ICAR and IVRI were set up as Societies and registered under the Societies Registration Act. Here again, Their Lordships, after considering the object and constitution and after relying on Ajay Hasia's case, came to a conclusion that ICAR and IVRI are instrumentality or agency of the Central Government and therefore it is "others authority" within the meaning of Art.12 of the Constitution, and as a necessary corollary the writ jurisdiction can be invoked against them. In 1995 (1) L.L.J. 687 (cited supra), while considering a labour dispute between Madras Labour Union and Binny Ltd., a Division Bench of this Court, after analysing the earlier case laws, found that the following propositions emerged: (1) A private body which is not a "State" within the meaning of Art.12 of the Constitution of India is not generally amenable to Art. 226 of the Constitution. (2) A writ will issue against a private body to protect the fundamental rights declared under Part III of the Constitution of India. (3) A writ will issue in extraordinary circumstances if the monstrosity of the situation warrants it. (4) A mandamus will be issued against a private body, if there is no equally convenient remedy and if there is a public duty. (5) The implementation of a settlement under S.12 (3) of the Industrial Disputes Act, is not a public duty and no writ will lie against a private body. (6) If the features are patent and they establish gross violation of the mandates of law, the jurisdiction under Art.226 of the Constitution could be exercised to quash a settlement under S.18(1) or S.12(3) of the Industrial Disputes Act." 16. In 1998 (1) L.L.J. 349 (cited supra), a Division Bench of this Court in a dispute between 37 work men and their employer Binny Limited, has arrived at the following conclusion: (para 11) "The decisions of the Supreme Court of India reported in (1986-1-LLJ-171), (1986-II-LLJ 509) and (1991-1-LLJ-607) declared the position of law beyond doubt that a Rule or Clause in the contract or Agreement of Service which entitles the Management to terminate the services of an employee by merely giving one calendar month's notice or one month's salary in lieu of such notice would be ultra vires Article 14 of the Constitution of India and that such provision would also be opposed to public policy and violative of Section 23 of the Indian Contract Act. The petitioners, even if relegated to the relief of Suit or the Industrial Dispute in the Labour Court, as it may deem fit, there could be no difficulty for those forums to strike down such a rule or declare such a clause to be void and unenforceable and it may not involve or necessitate any serious exercise or effort or any detailed enquiry to strike down such a rule or declare void such a clause, even in an agreement of service. The determination of the validity of such a clause as noticed above does not involve any factual investigation or appreciation of evidence and adjudication of factual issues. Consequently, instead of driving the petitioners to the appropriate forum, having regard to the fact that the writ petition has been filed and has been pending, on being entertained on the file of this Court so long we consider it appropriate, in the interests of justice to declare clause 8 of the Agreement of Service extracted above to be void and unenforceable against the petitioners as being violative of Section 23 of the Indian Contract Act, applying the law declared by the Apex court in the cases noticed supra. Consequently, the orders of termination in these cases are also declared illegal and nonest, having no legs to stand in the absence of the provision contained in clause 8 above, which has been declared void." 17. In 1999 Vol.95 FJR 527 (cited supra), a Division Bench of this Court has held that if there is violation of statutory provisions constituting unfair labour practice writ petition under Article 226 of the Constitution against a private employer is maintainable. 18. In (1999) 1 S.C.C. 741 (cited supra), the Supreme Court has held that the appellant U.P.State Coop. Land Development Bank Ltd., though a cooperative society registered under the U.P. Cooperative Societies Act, 1965 is constituted under U.P.Co-operative Land Development Bank Act, 1964, in view of the fact that control of the State Government on the appellant is all pervasive and the employees had statutory protection and therefore the appellant being an authority or even instrumentality of the State, would be amenable to writ jurisdiction of the High Court under Article 226 of the Constitution. 19. Mr. R. Muthukmaraswamy, learned Additional Advocate General very much relied on a decision of the Supreme Court in Chander Mohan Khanna v. NCERT, reported in A.I.R. 1992 Supreme Court 76. The question put-forth for consideration in that case was whether National Council of Educational Research and Training (NCERT in short) is State as defined under Article 12 of the Constitution. The NCERT is a society registered under the Societies Registration Act. Like all societies, it has a Memorandum of Association. It has Rules for internal management. After referring to various clauses as discussed by the High Court, the Supreme Court has held that, (para 5) "5. The object of the NCERT as seen from the above analysis is to assist and advice the Ministry of Education and Social Welfare in the implementation of the Governmental policies and major programmes in the field of education particularly school education. The NCERT undertakes several kinds of programmes and activities connected with the co-ordination of research extension services and training, dissemination of improved educational techniques, collaboration in the educational programmes. It also undertakes preparation and publication of books, materials, periodicals and other literature. These activities are not wholly related to governmental functions. The affairs of the NCERT are conducted by the Executive Committee comprising of Government servants and educationists. The Executive Committee would enter into arrangements with Government, public or private organisations or individuals in furtherance of the objectives for implementation of programmes. The funds of the NCERT consist of: (i) grants made by the Government, (ii) contribution from other sources, and ( iii) income from its own assets. It is free to apply its income and property towards the promotion of its objectives and implementation of the programmes. The Government control is confined only to the proper utilisation of the grant. The NCERT is thus largely an autonomous body." After referring to the decisions in Ajai Hasia (AIR 1981 SC 487) and Ramachandra