THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO. 20017 OF 1996 Date: 04.04.2007 Between: K. Janardhana Rao. …. Petitioner and The Secretary, Manasas Fort, Vizinagaram District and two others. … Respondents. THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO. 20017 OF 1996 ORDER: The action of the respondents in not permitting him to join duty in the first respondent trust is questioned by the petitioner in this writ petition as arbitrary and illegal. The petitioner was appointed as a clerk in ‘Manasas’ Trust on 05.08.1978 and worked in various capacities for nine years. He claims to have abstained from duty on account of his ill-health, to have undergone treatment from 11.12.1985 to 03.01.1986 and to have applied for leave on medical grounds. The second respondent, vide proceedings dated 03.01.1986, called upon the petitioner to submit a fitness certificate from the District Medical Officer, Vizianagaram. The petitioner submitted a fitness certificate from a private doctor and requested that he be permitted to join duty on 04.01.1986. He stated that it was not necessary that a medical fitness certificate be submitted only from the District Medical Officer, Vizianagaram. The second respondent issued memo dated 04.01.1986 informing the petitioner that, as per the procedure prescribed, a medical certificate issued by the District Medical Officer, Vizianagaram could only be accepted. According to the petitioner, though the second respondent claims to have referred his case to the District Medical Officer, he did not receive any intimation from the District Medical Officer to appear before him for medical examination. The petitioner was issued charge memo dated 29.11.1986 alleging that he was frequently abstaining from duty, that he had overstayed beyond 31.12.1985 without applying for leave and that he had failed to appear before the District Medical Officer for medical examination. In his explanation dated 08.08.1986 the petitioner denied all the charges. The petitioner was informed, vide memo dated 25.01.1988, that an Advocate Sri S.S.S.V.M.R. Raju, was appointed as the enquiry officer. According to the petitioner, while an enquiry was conducted, he was not given a copy of the enquiry report. In his representation dated 06.10.1993 the petitioner informed the second respondent that he was not informed of the contents of the enquiry report. In reply thereto, vide proceedings dated 16.10.1993, the second respondent informed the petitioner that his appointment was lost and was self- terminated and that his claim for arrears was unsustainable. The petitioner claims to have submitted several representations to the second respondent and, eventually, in reply to his representation dated 25.03.1996 the first respondent, vide proceedings dated 22.04.1996, informed him that his services were terminated on various grounds in proceedings dated 16.10.1993. It is this action of the respondents which is impugned in this writ petition as arbitrary, illegal and in violation of principles of natural justice. Petitioner would contend that the Manasas Trust was initially registered under the Societies Registration Act and, thereafter, under Section 38 of Act 17 of 1966 in the year 1973, that the third respondent had included Manasas Trust in the list published under Section 6(a)(i) of Act 30 of 1987, that in view of the orders issued by the Government, the Commissioner of Endowments i.e., the third respondent is the Controlling Authority in all matters of Manasas Trust including the services of employees working in the Trust, that due to illness he was compelled to apply leave from 11.12.1985 to 03.01.1986, that he was initially granted leave upto 23.12.1985 and when he reported for duty and submitted a representation along with a medical fitness certificate issued by Dr. G.V. Ramanamurthy Raju, the first respondent, vide memo dated 03.01.1986, had directed him to submit a fitness certificate from the District Medical Officer, Vizianagaram. According to the petitioner, on receipt of the said memo he had submitted a detailed representation dated 03.01.1986 requesting respondents 1 and 2 to permit him to join duty on 04.01.1986 on the strength of the fitness certificate given by Dr. G.V. Ramanamurthy Raju. He further stated that the second respondent, vide memo dated 04.01.1986, had informed him that a reference had been made to the District Medical Officer, Vizianagaram, requesting him to fix a date for the petitioner’s medical examination and to submit a report. The petitioner would deny the averments in the counter affidavit that he was asked to appear before the District Medical Officer who in turn would communicate to him the date of his appearance for medical examination. Petitioner would submit that the enquiry officer, in his report, had held that respondents 1 and 2 had miserably failed to prove the charges levelled against him and that a copy of the enquiry report was neither furnished to him by the enquiry officer nor by respondents 1 and 2. Petitioner would contend that the respondents had deliberately suppressed the findings in the enquiry report which were in his favour. Petitioner would contend that no action was taken pursuant to the enquiry report, that no order of termination was passed by the respondent authorities and, since he had come to know that the charges levelled against him were held not to have been established, and the enquiry officer in his report had held in his favour, he was under the impression that the first respondent would drop further action and issue orders permitting him to join duty. Petitioner would submit that, as a result of several representations, including the representation dated 06.10.1993, the respondents had eventually issued proceedings dated 16.10.1993 informing him that his appointment was lost and self-terminated. Petitioner would submit that he had addressed several letters, including the letter dated 25.03.1996, informing the respondents that the said letter dated 16.10.1993 was vague, that he was not served a copy of the enquiry report, that he be furnished a copy of the enquiry report and other documents, and that the respondents, vide letter dated 22.04.1996, had informed him that no further correspondence should be made as the petitioner’s services were self-terminated. Petitioner would contend that the respondents did not take any action on the enquiry report and, despite his repeated requests, the respondent had chosen not even to serve a copy of the enquiry report till date and that, with great difficulty, he was able to procure a copy of the enquiry report. Petitioner would reiterate that, since no order of termination was passed, the question of filing an appeal to higher authorities did not arise nor was there any delay in filing the present writ petition. Petitioner would contend that he is legally entitled for a copy of the enquiry report before any further action was taken against him, that non-supply of the enquiry report caused prejudice, that the action of the respondents in not permitting him to join duty is illegal, arbitrary and contrary to law. Petitioner would emphasise that the respondents had deliberately and wantonly suppressed the findings of the enquiry officer and had filed their counter affidavit with incorrect averments. In the counter-affidavit filed on behalf of respondents 1 and 2, by the Assistant Commissioner and Executive Officer of the Manasas Trust, Vizianagaram, it is stated that the writ petition is not maintainable. Respondents would submit that the second respondent Trust was registered, under the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1966, on 19.05.1973. According to the respondents the petitioner was frequently applying for medical leave and, since the petitioner went on medical leave from 11.12.1995 to 03.01.1996, he was directed, as per procedure, to obtain a medical fitness certificate from the District Medical Officer, Vizianagaram and was informed that the certificate produced by him from a private doctor could not be entertained as per the service code. According to the respondents, the petitioner was required to appear before the District Medical Officer, Vizianagaram who in turn was required to communicate the date on which he was required to appear for medical examination. The District Medical Officer, in his letter dated 08.07.1986, is said to have intimated the non-appearance of the petitioner. Respondents would deny the allegation that the petitioner was not intimated by the District Medical Officer, Vizianagaram regarding his being required to appear for medical examination. It is stated that, in view of the earlier conduct and disobedience, a charge memo was issued to the petitioner and, as his explanation was found unsatisfactory, an Advocate was appointed as the enquiry officer, that after giving due notice to both the parties the enquiry was conducted wherein both the parties were given reasonable opportunity of being heard and that a copy of the enquiry report was also sent to the petitioner by the enquiry officer and was returned unserved as the petitioner was not available. Respondents would deny the allegation that the petitioner was denied an opportunity by the enquiry officer or that he was not furnished a copy of the enquiry report. According to the respondents, the petitioner was informed, vide letter dated 16.10.1993, a copy of which he received on 20.10.1993, that his services were self-terminated. According to the respondents, consequent to the order dated 16.10.1993, the petitioner was no longer in the service of the respondent institution. Respondent would submit that, since the petitioner’s services were self- terminated for his not joining duty, he did not have any legal right to claim reinstatement. They would also contend that, while the action of respondents 1 and 2 in not permitting him to report for duty, arose on 03.01.1986, the writ petition was filed more than a decade thereafter in August, 1996 and that no reasonable explanation has been furnished by the petitioner for the inordinate delay in approaching this Court and the writ petition was, therefore, liable to be dismissed on the ground of delay and latches. Respondents would contend that the petitioner has an effective alternative remedy by way of an appeal to the Deputy Commissioner of Endowments and, on this ground also, the writ petition is liable to be dismissed. Sri M. Rama Rao, learned Counsel for the petitioner, would contend that all the colleges run by the Manasas Trust are aided colleges. He would submit that, since the Trust was registered as a Charitable Institution under A.P. Act 17 of 1966, the Commissioner of Endowments, under Section 8 of Act 30 of 1987, exercises overall supervision and control including control over employees of the Trust. Learned Counsel would refer to certain proceedings where the directions issued by the Commissioner, with regards employees of the Manasas Trust, had been complied with. Learned Counsel would place reliance on Section 32 of A.P. Act 17 of 1966, and Section 37 of Act 30 of 1987, to contend that it is only after following the procedure, and for reasons to be recorded in writing, could a penalty be imposed, on officers and servants attached to a charitable institution, for breach of trust, misappropriation, disobedience of orders, misconduct etc. Learned Counsel would submit that since disciplinary action was initiated against the petitioner, an enquiry was held and the enquiry officer had submitted a report holding the petitioner not guilty of the charges, the action of the respondents in issuing proceedings dated 16.10.1993, that the services of the petitioner were self- terminated, was illegal and ultravires the provisions of Ac 30 of 1987. Learned Counsel would contend that the respondents had suppressed material facts, more particularly the fact that the enquiry officer had absolved the petitioner of all the charges. Learned Counsel would refer to the office holders and punishment Rules, 1987, (notified in G.O.Ms. No. 830 dated 18.08.1989), and to the rules in G.O.Ms. No. 1478 dated 17.11.1986. While conceding absence of a specific challenge to the proceedings dated 16.10.1993, learned Counsel would submit that this Court could always mould the relief. He would rely on Food Corporation of India Vs. S.N. Nagarkar[1], State of Haryana Vs. O.P. Gupta[2] and Paluru Ramkrishnaiah Vs. Union of India[3] in this regard. Learned Counsel would contend that the respondents cannot take advantage of their own wrong, in not taking further action pursuant to the enquiry report and in passing an ex facie arbitrary and illegal order, to contend that the petitioner was disentitled to claim relief on the ground of delay and latches. Learned Counsel would rely on Ram Chand Vs. Union of India[4] in this regard. On the question of maintainability of the writ petition, learned Counsel would refer to various provisions of the A.P. Charitable and Hindu Religious Institutions & Endowments Act, 1987, (Act 30 of 1987) to contend that since the Act applies only to public charitable trusts the Manasas Trust, which was registered under the Endowments Act, was a public trust and its activities, including the service conditions of its employees, fell in the public law domain. Learned Counsel would place reliance on Deoki Nandan Vs. Murlidhar[5] and Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi[6]. Learned Counsel would submit that while the Government had the power, under Section 154, to exempt the Trust from the operation of the provisions of the Act and the Rules made thereunder, no such exemption was granted and as such the Commissioner of Endowments continued to exercise supervision and control over the Trust. Learned Counsel would submit that the Executive Officer of the Trust is appointed by the Government, that his salary and allowances are initially paid from out of the consolidated fund of the State and later recovered from the respondent-trust and, in view of Section 29(5) read with Section 15 of Act 30 of 1987, the respondent Trust was a public Trust and a writ petition was maintainable thereagainst. Sri P.V.S.S. Rama Rao, learned Counsel for the respondent Trust, would contend that it was for the first time on 30.12.1996 that an executive officer was appointed, by which time the writ petition had already been filed, that mere registration under the Endowments Act did not make the respondent Trust an instrumentality of the State under Article 12 of the Constitution of India and, at best, it was only after 30.12.1996, when the Executive Officer was appointed by the Government, was a writ petition maintainable against the respondent trust. Learned Counsel would contend that employment between the respondent Trust and the petitioner was contractual in nature and was in the private law realm and not in the public law domain and that the impugned order dated 16.10.1993, whereunder the petitioner was informed that his services had been self-terminated, was akin to voluntary abandonment of service. Learned Counsel would submit that the order dated 16.10.1993 had not even been challenged in the present writ petition and as such this Court was not required to examine its validity. Learned Counsel would contend that, since the petitioner questions the action of the respondents in not permitting him to join duty from 04.01.1986, there is an inordinate and unexplained delay of ten years in invoking the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India and the writ petition was, therefore, liable to be dismissed on the ground of delay and latches. Learned Counsel would contend that the petitioner has an effective alternative remedy under Act 30 of 1987. Learned Counsel would place reliance on Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology[7], Federal Bank Ltd. Vs. Sagar Thomas[8], Binny Ltd Vs. Sadasivan[9], A. Subrahmanyam Naidu Vs. Government of Andhra Pradesh[10] and Mani Enterprises Vs. Vasavi Co- operative Union Bank Limited, Hyderabad[11]. On the question, whether the writ petition is maintainable against the first respondent charitable Trust, it must firstly be examined whether “Manasas trust” is an instrumentality of the “State” under Article 12 of the Constitution of India. To determine this question it must be examined in each case whether, in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within the meaning of Article 12. On the other hand, when the control is merely regulatory, whether under a statute or otherwise, it would not serve to make the body a State. (Pradeep Kumar7). The regulatory provisions of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (Act 30 of 1987) apart, the State Government does not exercise financial, functional or administrative control over the “Manasas Trust” and it is, therefore, not an instrumentality of the “State” under Article 12 of the Constitution of India. But, then, even if a private body is discharging public functions, and the denial of the right claimed is in connection with a public duty imposed on such a body, the public law remedy under Article 226 of the Constitution of India would still be available. It is well settled that the remedy under Article 226 of the Constitution of India is, pre-eminently, a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel public/statutory authorities to discharge their duties and to act within their bounds. A writ of mandamus can, under certain circumstances, be issued against a private body, which is not a State within the meaning of Article 12 of the Constitution, and such a body would be amenable to the jurisdiction of the High Court under Article 226 of the Constitution of India. But there must be a public law element and the extra-ordinary jurisdiction under Article 226 is not, ordinarily, exercised to enforce purely private contracts entered into between the parties. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function, and the denial of any right is in connection with a public duty imposed on such body, the public law remedy can be invoked. The duty cast on the public body may be either statutory or otherwise. While the source of such power is immaterial there must, nonetheless, be a public law element in such action. (Binny Ltd9). Sri M. Rama Rao, learned Counsel for the petitioner, would contend that the repealed Act 17 of 1966 and the present Act 30 of 1987 govern` only Public Charitable Institutions and Endowments and, since the first respondent has been established for a charitable purpose and is a charitable institution under Section 6(a)(1) of Act 30 of 1987, a writ petition would lie against it. The distinction between a private and a public trust must be borne in mind. Whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained, or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment. By public, it must be understood, are such as are constituted for the benefit either of the public at large or of some considerable portion of it answering a particular description. To this class belong all trusts for charitable purposes. Public trusts and charitable trusts may be considered synonymous expressions. In private trusts the beneficial interest is vested absolutely in one or more individuals who are, or within a certain time may be, definitely ascertained. (Deoki Nandan5). Since “Manasas Trust” has been constituted for the benefit of the public at large, and is a charitable trust, it would fall under the category of a public trust. Would a writ petition lie against a public charitable institution even where it relates to action taken by it against its employees? If the nature of employment, between the petitioner herein and the respondent Trust, is contractual in nature and is in the private law realm would a writ petition lie for its breach? It is often difficult to distinguish between public law and private law remedies. A public authority has a public or statutory duty to perform and it performs those duties, and carries out its transactions, for the benefit of the public and not for private profit. There cannot be any general definition of public authority or public action. The facts of each case decide the point. (Binny Ltd9, Halsburys Laws of England[12]). In Chairman, Railway Board Vs. Chandrima Das (MRS)[13] the Supreme Court noted its earlier decisions and observed:- “………The distinction between public law and private law was considered by a three-Judge Bench of this Court in Common Cause, A Regd. Society v. Union of India: (1999) 6 SCC 667 in which it was, inter alia, observed as under: “…………Under Article 226 of the Constitution, the High Court has been given the power and jurisdiction to issue appropriate writs in the nature of mandamus, certiorari, prohibition, quo warranto and habeas corpus for the enforcement of fundamental rights or for any other purpose. Thus, the High Court has jurisdiction not only to grant relief for the enforcement of fundamental rights but also for any other purpose which would include the enforcement of public duties by public bodies. So also, the Supreme Court under Article 32 has the jurisdiction to issue prerogative writs for the enforcement of fundamental rights guaranteed to a citizen under the Constitution. Essentially, under public law, it is the dispute between the citizen or a group of citizens on the one hand and the State or other public bodies on the other, which is resolved. This is done to maintain the rule of law and to prevent the State or the public bodies from acting in an arbitrary manner or in violation of that rule. The exercise of constitutional powers by the High Court and the Supreme Court under Articles 226 and 32 has been categorised as power of judicial review. Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of fundamental rights guaranteed by the Constitution. With the expanding horizon of Article 14 read with other articles dealing with fundamental rights, every executive action of the Government or other public bodies, including instrumentalities of the Government, or those which can be legally treated as authority within the meaning of Article 12, if arbitrary, unreasonable or contrary to law, is now amenable to the writ jurisdiction of this Court under Article 32 or the High Courts under Article 226 and can be validly scrutinised on the touchstone of the constitutional mandates.” The earlier decision, namely, LIC of India v. Escorts Ltd.: AIR 1986 SC 1370 in which it was observed as under: “Broadly speaking, the Court will examine actions of State if they pertain to the public law domain and refrain from examining them if they pertain to the private law field. The difficulty will lie in demarcating the frontier between the public law domain and the private law field. It is impossible to draw the line with precision and we do not want to attempt it. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the action and a host of other relevant circumstances.” was relied upon. Various aspects of the public law field were considered. It was found that though initially a petition under Article 226 of the Constitution relating to contractual matters was held not to lie, the law underwent a change by subsequent decisions and it was noticed that even though the petition may relate essentially to a contractual matter, it would still be amenable to the writ jurisdiction of the High Court under Article 226. The public law remedies have also been extended to the realm of tort. This Court, in its