IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 25.02.2010 CORAM THE HONOURABLE MRS. JUSTICE R.BANUMATHI AND THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.A. NOS.2837 AND 2838 OF 2002 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 Center for Ornithology and Natural History Kalampalayam P.O., Coimbatore – 641 010. .. Appellants in both W.As./ Respondents Versus Dr.C.P.Geevan .. Respondent in W.A.No.2837/2002/ Petitioner Dr.Mathew K.Sebastian .. Respondent in W.A.No.2838/2002/ Petitioner Writ Appeals filed under Clause 15 of the Letters Patent Act to set aside the orders of the learned single Judge dated 23.08.2002 in W.P.No.1842 of 1996 and 1784 of 1996 presented under Article 226 of the constitution of India to issue a Writs of Certiorarified Mandamus calling for the records from the file of the first respondent in both the petitions pertaining to the proceedings in (i) Ref.No.92/51-03/96 and (ii) Ref.No.92/51-21/96 respectively quash the orders dated 30.01.1996 and consequently direct the Respondents in both the petitions to reinstate the petitioner in each of the petitions in service with backwages continuity of service and all other attendant benefits. For Appellant : Mr.R.Muthukumaraswamy (in both W.As.) Senior Counsel for Mr.A.Jenasenan For Respondents : Mr.R.Yashod Vardhan (in both W.As.) Senior Counsel for Mr.P.Vinod Kumar https://hcservices.ecourts.gov.in/hcservices/ C O M M O N J U D G M E N T M.M.SUNDRESH, J In view of the common issues involved in both appeals, they have been taken up together for disposal. 2.The brief facts of the case in a nutshell are as follows: i.The 1st appellant is a Society registered under the Societies Registration Act. It was established in the year 1990 being an autonomous Centre of the Ministry of Environment and Forests, Government of India. It was promoted by the Bombay Natural History Society, which is also an autonomous and a registered society. The 1st appellant is governed by its own Memorandum of Association having its own Rules and Regulations framed by it. As per the Rules and Regulations, the membership of the appellant society would consist of eminent Ornithologist, Environmentalist, Administrators and Social and Physical Scientist. ii.The principal object of the appellant society is to "develop an institution of excellence in the fields of Ornithology and Natural History". The appellant society has a large number of research projects in various parts of the country including the Andaman and Nicobar Islands. The executive organ of the appellant society is the governing council which shall function under the direct supervision and control of the society. iii.As per the rules and regulations, the membership of the appellant society consists of nominees of the Bombay Natural History Society, the Secretary and Finance Advisor of the Ministry of Environment and Forests, Government of India, Ex-officio the Secretary, Environment and Forest Department, Government of India, Ex-officio, Chief Executives of Research Institutions / Universities such as the Centre for Ecological Sciences, Indian Institute of Science, Bangalore, the Wild Life Institute of India, Dehradun, the Bombay Natural History Society, the Bharathiar University, Coimbatore, as well as the other members co-opted by the governing council. The President of the Bombay Natural History Society is also the President of the appellant society and the Chairman of the governing council is a nominee of the above mentioned society. The Director is appointed by the governing council and he is the Chief Executive and the Member Secretary of the appellant society. iv.In so far as the financial control is concerned, there shall be a Finance Committee which was include the Financial Advisor of the Ministry of Environment and Forest, Government of India to assist the governing council in financial matters. The budget of the society shall be scrutinised by the Finance Department and approved by the governing council before the same is sent to the Government of https://hcservices.ecourts.gov.in/hcservices/ India. Rule 13 speaks about the power of the Central Government in financial matters and also in relation to expenditure pertaining to adoption of pay-scale allowances and revisions thereof as well as the creation of posts carrying higher scale. Likewise Rule 18 speaks about the maintaining of the accounts as prescribed by the Central Government in consultation with the Comptroller and Audit General of India. The accounts will have to be forwarded to the Central Government and it is open to audit by the accounts by the Comptroller and Audit General of India. The Comptroller and Audit General of India will exercise the same power against the appellant society as in the case of auditing of other Government accounts. Rule 21 deals with alteration, extension or amendment of the object or purpose of the appellant society subject to the prior approval of the Ministry of Environment and Forest, Government of India. v. The appellant society had appointed the respondents on probation for a period of two years by the proceedings dated 19.02.1992 and 19.10.1993 respectively. The respondent in W.A.No.2837 of 2002 was appointed a System Analyst and the respondent in W.A.No.2838 of 2002 was appointed a Senior Scientist. It has been stated at the time of appointment by the appellants that the period of probation will be extended at the discretion of the appellants and the appointment made may be terminated without assigning any reasons by giving one month's notice. After the said appointments, the respondents have been working with the appellants in the capacity in which they have been appointed. However by the proceedings dated 30.01.1996, the services of the respondents were terminated and they have been discharged by the 1st appellant. The said orders have been passed on the ground that the governing council considered the case of the respondents for the declaration of the probation and it was found that their work and conduct during the period of probation was unsatisfactory. vi. Challenging the orders passed by the 1st appellant dated 30.01.1996 on the ground that it has been passed with malafide intention, the respondents filed writ petitions in W.P.No.1842 of 1996 and W.P.No.1784 of 1996 seeking to quash the said orders with a further direction directing the appellants to reinstate them in service with backwages, continuity of service and other attendant benefits. The learned single Judge on a consideration of the materials available on record has allowed the writ petitions by ordering reinstatement with service benefits while rejecting the request for backwages. Challenging the said orders passed by the learned single Judge, the appellants have preferred the writ appeals. 3.Shri.R.Muthukumaraswamy, learned senior counsel appearing for the appellants submitted that the writ appeals will have to be allowed, since the writ petitions filed by the respondents are not maintainable in law. According to the learned senior counsel, the appellant being a society registered under the Societies Registration https://hcservices.ecourts.gov.in/hcservices/ Act and also being a Non-Governmental autonomous Organisation having its own bye-laws, Rules and Regulations, the writ petitions are not maintainable, since the 1st appellant is not a State coming within the definition of Article 12 of the Constitution of India and therefore not amenable to the jurisdiction of this Hon'ble Court under Article 226 of the Constitution of India. The learned senior counsel further submitted that there is no financial, administrative and functional control of the Government of India over the 1st appellant society. It is the case of the learned senior counsel that by applying the triple test of financial, administrative and functional control by the Government to the facts of the present case it has to be held that the appellant is not amenable to the jurisdiction of this Hon'ble Court. 4.In support of his contention, the learned senior counsel has referred to the bye-laws, Rules and Regulations and administrative control of the appellant society. The learned senior counsel submitted that the bye-laws are made by the society and the appellant was promoted by Bombay Natural History Society which is also an autonomous Non-Governmental Organisation registered under the Societies Registration Act. The appellant society is governed by its own Memorandum of Association with its own Rules and Regulations framed by it. The members of the appellant society are from various places and the governing council which is the executive organisation of the appellant society functions under the direct supervision and control of the appellant. It is further submitted that the decisions of the governing council or the 1st appellant are based upon the view of the majority. The object of the appellant society is research, training, education in the field of ornithology and Natural History. Hence, the learned senior counsel submitted that the object, results and functions of the appellant society are Non-Governmental in nature. It is further submitted that even though the Government has given some fund to the appellant it is free to mobilise its own fund and purchase its own properties towards the promotion of its objectives and implementation of the programmes. 5.Shri.R.Muthukumaraswamy, learned senior counsel submitted that the mere fact the appellant society was given finance by the Central Government by itself cannot be a ground to hold that the appellant is a State under Article 12 of the Constitution of India. According to the learned senior counsel that in the absence of any pervasive control by the Central Government over the appellant it cannot be said the appellant is an instrumentality of the State under Article 12 of the Constitution of India. In other words, the learned senior counsel submitted that a mere regulatory or supervisory control of the Central Government over the appellant would not bring the appellant within the purview of Article 12 of the Constitution of India. https://hcservices.ecourts.gov.in/hcservices/ 6.In support of his contention, the learned senior counsel has relied upon the judgments reported in (1991) 4 SCC 578 [CHANDER MOHAN KHANNA v. NATIONAL COUNCIL OF EDUCATIONAL RESEARCH AND TRAINING AND OTHERS], (2002) 5 SCC 111 [PRADEEP KUMAR BISWAS v. INDIAN INSTITUTE OF CHEMICAL BIOLOGY] and the recent judgment of the Apex Court reported in (2008) 1 MLJ 902 [LT. GOVERNOR OF DELHI v. V.K.SODHI] and contended that applying the ratio laid down by the Hon'ble Supreme Court in the said judgments, the appellant is not an instrumentality of the State and therefore not amenable to the jurisdiction of this Hon'ble Court under Article 226 of the Constitution of India. 7.Shri.R.Muthukumaraswamy, learned senior counsel appearing for the appellants further submitted that the orders impugned are a termination order simpliciter in nature. According to the learned senior counsel, the impugned orders neither carry any stigma nor they are punitive in nature. It is submitted that a stigma is one of form which can be ascertained from the words mentioned in the order itself and the punitive being one of substance by framing charges, enquiry and consequential finding. The learned senior counsel also submitted that the impugned orders have been passed on the ground that the work and conduct of the respondents during the period of probation were not satisfactory, the said decision made based upon the assessment of the performance cannot be said that they are stigmatic and punitive in nature. 8.The learned senior counsel submitted that the learned single Judge has committed an error in holding that the allegations made by the respondents have not been contraverted, since a detailed counter was filed in W.P.No.1454 of 1996 denying the allegations which are identical in all the three cases. Moreover, there is no allegation about the 1st appellant and even assuming the allegation against the 2nd appellant is true, the impugned orders cannot be set aside on that score, since the decision was made by the 1st appellant in which the 2nd appellant is only one of a member. 9.The learned counsel has relied upon the judgments reported in (1997) 2 SCC 191 [KUNWAR ARUN KUMAR v. U.P.HILL ELECTRONICS CORPORATION LTD. AND OTHERS]; (1992) 4 SCC 719 [GOVERNING COUNCIL OF KIDWAI MEMORIAL INSTITUTE OF ONCOLOGY, BANGALORE v. DR.PANDURANG GODWALKAR AND ANOTHER]; (2001) 9 SCC 319 [KRISHNADEVARAYA EDUCATION TRUST AND ANOTHER v. L.A.BALAKRISHNA]; AIR 2002 SC 23 [PAVANENDRA NARAYAN VERMA v. SANJAY GANDHI P.G.I. OF MEDICAL SCIENCES AND ANOTHER]; 2002-II-L.L.J. 813 [S.S.PATIL v. PRESIDENT HON.KHASDAR UGS SANSTHA] and 2007 (1) L.L.N. 345 [S.VIDYASHANKAR v. UNION OF INDIA] in support of his contention that an order of termination expressing dissatisfaction on the work and conduct of an probationer could neither be called as stigmatic nor punitive in nature. Hence the learned counsel prayed that the writ https://hcservices.ecourts.gov.in/hcservices/ appeals will have to be allowed both on the grounds that the writ petitions are not maintainable in law as the 1st appellant is not a State under Article 12 of the Constitution of India and the impugned orders are mere termination simpliciter in nature. 10.Per contra, Shri.Yashod Vardhan, the learned senior counsel appearing for Mr.P.Vinod Kumar for the respondents submitted that prior to the appointments of the respondents in the year 1992 they have been working in a permanent post. They resigned the posts and thereafter joined the 1st appellant's centre. Even though the appointments were made in 1992 for the period of two years there was no confirmation and the respondents were allowed to continue till the passing of the impugned orders. The learned senior counsel submitted that of the 11 probationers, 8 of them have been made permanent, the writ petitioner in W.P.No.1454 of 1996 has been allowed to continue by not challenging the order of the learned single Judge and only the respondents herein alone have been terminated on malafide and extraneous consideration. 11.The learned senior counsel strongly contended that it is not true that the averments made in support of the writ petitions in W.P.No.1454 of 1996 filed by one Dr.E.Johnson and in W.P.Nos.1784 and 1842 of 1996 filed by the members are one and the same. The learned counsel submitted that the case involved in W.P.No.1454 of 1996 is one of extension of six months and in the case of the respondents specific averments have been made about the vindictive attitude of the 2nd appellant which were supported by various letters and correspondences between the appellants and the respondents. The said averments made in paragraph 15 of the affidavit filed in support of the writ petitions by the respondents have not been disputed or denied by the appellants. 12.It is further submitted that it is only the 2nd appellant who filed the counter affidavit in W.P.No.1454 of 1996 which was adopted by the 1st appellant and they have not denied the specific allegations made by the respondents. The learned senior counsel has made strong reliance upon the various letters and communications between the respondents and the appellants. The learned senior counsel has relied upon the letter dated 05.08.1993 of the first respondent appreciating the work of the respondent in W.A.No.2837 of 2002. 13.According to the learned senior counsel, there was a dispute between the appellants and the staff led by the respondents caused due to the death of one Dr.Davis Frank Singh who committed suicide while he was in employment. There were agitations against the 2nd appellant on the ground that he was responsible for the death of the above said person and a complaint was also given by his wife to that effect. The condolence meeting held on 29.05.1995 was led by the respondents. The death of the Scientist was also widely published in https://hcservices.ecourts.gov.in/hcservices/ the newspapers. The 1st appellant has written a letter dated 07.06.1995 requesting the Ministry to depute a fact finding authority and two members of the governing council were also deputed to ensure normal see. 14.The respondent in W.A.No.2837 of 2002, Dr.C.P.Geevan also gave a statement to the concerned police station stating that the deceased informed him that he was threatened by the 2nd appellant that he would take disciplinary actions against him. It is further stated in the said statement that the deceased had told him about the action taken by the 2nd appellant over which he felt humiliated. By the letter dated 04.07.1995, the respondent in W.A.No.2837 of 2002 sought for certain clarification from the 2nd appellant so as to make his statement before the fact finding authority. Thereafter by the letter dated 30.08.1995, the 2nd appellant had informed the respondent in W.A.No.2837 of 2002 that he is withdrawing from the project as Co-investigator. By a subsequent letter dated 14.09.1995 the 2nd appellant sent a communication of the governing council that any action that would tarnish the image of the organisation will attract strict action. 15.On 07.10.1995, Dr.C.P.Geevan wrote a letter to the 2nd appellant stating that the project is nearing completion and as a Principal Investigator of the project a request is made to the 2nd appellant to co-operate. The request was rejected on the very same day by the 2nd appellant. Again on the very same day, Dr.C.P.Geevan repeated the said request. Thereafter by a letter dated 19.10.1995 the 2nd appellant communicated the decision of the governing council stating that an act of indiscipline will attract severe disciplinary action. By subsequent letter dated 13.11.1995 by way of a reply to the letter dated 07.10.1995 sent by Dr.C.P.Geevan the 2nd appellant has stated that Dr.C.P.Geevan has stated before the Chairman that he was doing the project work by himself and the 2nd appellant was not co-operating and on 07.06.1995 he told the 2nd appellant that he did not like to work with him and therefore the 2nd appellant was constrained to withdraw from the project. 16.Thereafter a notice was sent by the 2nd appellant dated 15.11.1995 stating that the Assessment Committee will be held on 04.12.1995 and Dr.C.P.Geevan was advised to present before the committee. Another letter dated 08.01.1996 was sent by the 2nd appellant to Dr.C.P.Geevan stating that he has received a written complaint from one of the Principal Scientists. By resolution dated 10.01.1996, the governing council resolved to take severe action if any members of the staff persisted with their act and indiscipline. Thereafter by an order dated 30.01.1996, the respondents were terminated on the ground that their work and conduct were found to be unsatisfactory. https://hcservices.ecourts.gov.in/hcservices/ 17.In so far as the respondent in W.A.No.2837 of 2002 Dr.Mathew K.Sabestian is concerned, it is seen that by the letter dated 28.09.1995 a detailed complaint was given by him to the Chairman of the governing council narrating the various harrassment caused by the 2nd appellant using his official powers. The learned counsel had made reliance upon the said letter which mentioned about numerous incident occurred between the Dr.Mathew K.Sabestian and the 2nd appellant. 18.The learned senior counsel submitted that the above said facts which are not in dispute would clearly show that the orders impugned are stigmatic and punitive in nature. The learned senior counsel submitted that it is the specific case of the respondents that at the instigation of the 2nd appellant, the 1st appellant has passed the impugned orders of termination. According to the learned counsel, there is no material to prove that the conduct of the respondents are not satisfactory and the allegations made in the affidavits filed in support of the writ petitions have not been denied or controverted leading to the presumption that they have been accepted as true. 19.The learned senior counsel submitted that the rules pertaining to the 1st appellant would clearly show that the contrary of the Central Government over the 1st appellant is absolute and pervasive. According to the learned senior counsel it is not true to contend that there is any other source of financing accepted by the Ministry of the Central Government as seen from the records. The learned senior counsel also relied upon the appointment order dated 22.05.1992 made in favour on Dr.C.P.Geevan wherein it has been specifically stated that the 1st appellant is an autonomous Centre of the Ministry of Environment and Forests, Government of India. Hence the learned senior counsel submitted that the 1st appellant himself is quite aware of the fact that it is an Central Government undertaking. 20.The learned senior counsel submitted that the judgment of the Apex Court rendered in (2002) 5 SCC 111 [PRADEEP KUMAR BISWAS v. INDIAN INSTITUTE OF CHEMICAL BIOLOGY] in fact supports the case of the respondent, since the triple test of functional, financial and administrative control by the Central Government has been satisfied. The learned senior counsel also relied upon the recent judgment of the Apex Court reported in 2009 (2) CTC 372 [STATE OF U.P. AND ANOTHER v. RADHEY SHYAM RAI] wherein the Apex Court was pleased to observe that in a case where the expenditure of the society was met by the Government directly and when the functions of the society are public functions then such a society would be a State coming under the ambit of Article 12 of the Constitution of India and therefore amenable to the jurisdiction of this Court under Article 226 of the Constitution of India. Hence the learned senior counsel submitted that applying the said ratio the control exercised by the Central https://hcservices.ecourts.gov.in/hcservices/ Government being deep and pervasive, the writ petitions are maintainable in law. 21.In support of his contention that the orders impugned are stigmatic and punitive in nature. The learned counsel also relied upon the judgments reported in AIR 2000 SC 1706 [CHANDRA PRAKASH SHAHI v. STATE OF U.P. AND OTHERS] and (2007) 10 SCC 71 [JASWANTSINGH PRATAPSINGH JADEJA v. RAJKOT MUNICIPAL CORPORATION AND ANOTHER] and submitted that the surrounding circumstances will have to be seen by the Court and the Court will have to lift the veil to decide as to whether an order of termination is stigmatic or punitive in nature. Therefore, the learned senior counsel sought for the dismissal of the writ appeals. 22.We have heard Mr.R.Muthukumaraswamy, learned senior counsel appearing for Mr.A.Jenasenan for the appellants and Mr.Yashod Vardhan, learned senior counsel appearing for Mr.P.Vinod Kumar for the respondent. 23.The following issues arise for consideration to be decided in the appeals: (i).Whether the 1st appellant is an instrumentality of the State coming under the purview of Article 12 of the Constitution of India and therefore amenable to the jurisdiction of this Hon'ble Court under Article 226 of the Constitution of India. (ii).Whether the impugned orders passed by the 1st appellant are stigmatic, punitive and passed on malafide and extraneous consideration. i).Whether the 1st appellant is an instrumentality of the State coming under the purview of Article 12 of the Constitution of India and therefore amenable to the jurisdiction of this Hon'ble Court under Article 226 of the Constitution of India. Admittedly, the 1st appellant is a society registered under the Registration of Societies Act, the objects of the 1st appellant society are as follows: "The objects of the Society shall be :- (i)To develop an institution of excellence in the fields of Ornithology and Natural History; (ii)To develop and conduct research in all aspects of Ornithology; (iii)To develop and conduct research in all aspects of the Natural History of other life forms; (iv)To develop and conduct: (a)Courses in Ornithology and Natural History for students at M.Sc., M.Phil, and Ph.D. levels; (b)short-term orientation courses in specialised aspects of Ornithology and Natural History; https://hcservices.ecourts.gov.in/hcservices/ (v)To initiate applied research of direct relevance to Ornithology and Natural History; (vi)To create a Data Bank of Indian Ornithology and Natural History; (vii)To confer honorary awards and other distinctions to persons who have rendered outstanding service in the fields of Ornithology and Natural History; (viii)To organise lectures, seminars, workshops and other programmes in the fields of Ornithology and Natural History; (ix)To promote the science of Ornithology and Natural History; (x)To diffuse useful knowledge relating to Ornithology and Natural History for the benefit of the entire community; (xi)To carry on activities for the extension of knowledge in the field of Ornithology and Natural History; (xii)To publish scientific works and monographs in Ornithology and Natural History based on the activities of the Society; and (xiii)Generally, to do all such other lawful acts and things necessary, incidental, conducive and ancillary to attain the above mentioned objects. Provided that in carrying out the above mentioned objects no activity shall be undertaken with the dominant motive of making any profits and the dominant motive in all the activities of the Society