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 Center for Ornithology
and Natural History
Represented by its Member Secretary
Kalaripalayam P.O.,
Coimbatore 641 010.
2.Dr.V.S.Vijayan
Director
Salim Ali Center for Ornithology
and Natural History
Kalaripalayam P.O.,
Coimbatore 641 010. .. Appellants
(in both W.As.)
Versus
Dr.C.P.Geevan .. Respondent
(in W.A.No.2837/2002)
Dr.Mathew K.Sebastian .. Respondent
(in W.A.No.2838/2002)
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 respectively.
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
* * * * *
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 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 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.
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 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 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.
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 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;
(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 shall always be the promotion of the above mentioned objects.”
A reading of the above said objects would clearly show that the said objects relates to the public functions and duties of the Government of India. The Research and Development in the field of Ornithology comes under the Department of Ministry of Environment and Forests, Government of India. The conduct of Research in the above said fields is in the general development of forests and ecological balance. Birds play an eminent and important role in maintaining the forests in particular and ecological balance in general. Maintenance of forests and ecological balance forms part of Article 21 of the Constitution of India. Similarly, maintenance, protection and improvement of the Natural Environment including Forests and Wild Life has been enshrined as one of the fundamental duties under Article 51-A of the Constitution of India. Therefore there is no difficulty in appreciating the fact that the object of the 1st appellant society is for a public purpose. That is a reason why the proviso to the object clearly stipulates that there shall not be any activity with the dominant motive of making any profits and the dominant motive shall always be the promotion of the objects. Hence it can be safely concluded that the object of the 1st appellant society is not only to conduct research but also spread the awareness to various parts of the country in the fields of Ornithology and Natural History.
In so far as the members of the governing council is concerned, it also includes various top government officials in the field of ecology and Environment and Forests, Wild Life and Education etc. The above said fact coupled with the object would clearly show that the functions of the Government of India are being done through the 1st appellant society. The powers and functions of the 1st appellant can only be exercised in accordance with the object. In other words, the 1st appellant can exercise the power only towards the development in the field of Ornithology and Natural History.
Rule 12 speaks about the establishment of a financial committee which shall include the financial advisor of Ministry of Environment and Forests, Government of India to assist the governing council in financial matters. The budget of the society shall be scrutinised by the finance committee and approved by the governing council and thereafter it shall be sent to the Government of India. Similarly Rule 13 speaks about the power of the Central Government to decide the dispute between the governing council and the ministry of finance regarding the financial matter. Rule 13 (2) speaks about the prior approval of the Central Government regarding certain appointments in consultation with the Ministry of Finance and Department of expenditure. Similarly Rule 18 speaks about the audit by the Comptroller and Auditor General of India as in the case of any other Department. Rule 21 speaks about alternations, amendments and changes regarding the object stating that they can be done only with the prior approval of the Government of India.
The above said provisions referred above would clearly show that there is absolute control by the Government of India over the 1st appellant society in the matter of administration, finance and functional control. The above said conclusion is substantiated by the document of the 1st appellant himself. In the appointment order issued to the respondents, the 1st appellant society is described as “an autonomous Centre of the Ministry of Environment and Forests, Government of India”. Therefore, the above said fact itself would clearly show that the 1st appellant is an authority under Article 12 of the Constitution of India.
As submitted by the learned counsel appearing for the respondent Shri.Yashod Vardhan, every year budgetary allocation has been made to the 1st appellant. The Central Government has periodically enhanced the amount of allocation. There is absolutely no other material to show about the contribution made by any other private persons other than the Government of India. The parliamentary standing committee on budget allocation has allotted the following amount as follows:
“Budget Allocation and Expenditure of SACON from Inception Till Date
The Ministry of Environment and Forests, Government of India has released Rs.743.43 lakhs to SACON since inception till date. The Details of the same are given below:
Year
Amount released
(Rs. In Lakhs)
1991-92
40
1992-93
104
1993-94
31.57
1994-95
45
1995-96
59.86
1996-97
72
1997-98
178
1998-99
96
1999-2000
117
Total
743.43
Out of Rs.743.43 released, SACON has acquired assets worth Rs.302.39 lakhs as on 31.03.2000.”
It is seen that even thereafter higher allotment has been made every year. The Bharathiar University has also granted recognition to the appellant for conducting Ph.D Programmes for Ornithology and Natural History, Zoology and Botany and Environmental Sciences. The appellant was registered with the department of Scientific and Industrial Research for the purpose of availing customs duty exemption. Hence the above said facts would show that the appellant is an authority under Article 12 of the Constitution of India.
The mere fact that the appellant is having its own bye-laws, rules and regulations by itself cannot be a reason to hold that it is not an instrumentality of the State. It is also seen from the records that when there was an unrest in the appellant society, the matter was reported to the Ministry of Environment and Forests, Government of India with a request to depute a suitable officer to make a fact finding study and give a report with suitable recommendations to the governing council. The above said letter of the appellant dated 07.06.1995 itself is a clear indication of the control of the Government of India over the 1st appellant. In the judgment reported in (2002) 5 SCC 111 [PRADEEP KUMAR BISWAS v. INDIAN INSTITUTE OF CHEMICAL BIOLOGY], the Hon’ble Apex Court has held as follows:
“40.The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be 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 Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.”
Hence applying the above said principle laid down by the Hon’ble Apex Court we are of the considered view that the 1st appellant is an authority under Article 12 of the Constitution of India and therefore amenable to the jurisdiction of this Hon’ble Court. In a recent judgment reported in 2009 (2) CTC 372 [STATE OF U.P. AND ANOTHER v. RADHEY SHYAM RAI], the Hon’ble Supreme Court after considering the earlier judgments has held as follows:
“14.The documents produced before the High Court reveal that 80 to 90% of the expenditure of Sansthan was met out of the funds made available to it by the Government. The majority of the office bearers of the Governing Council were holders of various offices of the Government. It had, thus, a dominance of the holders of the office in the Government of Uttar Pradesh; the Minister-Incharge of Cane Department being its Ex-officio Chairman of the Governing Council. He is the Chief Executive Authority. The Director and Accounts Officer are also the Government servants and the Sansthan is not free to appoint anybody on those posts who is not a Government servant. This itself clearly shows that the composition and constitution of Sansthan and its Governing Council was nothing but a show of the Government and only a cover of the Society was given. Rule 41 of the Rules of Sansthan provides that the Governor shall have power to issue any directives to the Sansthan concerning any matter of public importance and the Sansthan shall give immediate effect to the directives so issued. Furthermore, Rule 41(b) of the Rules of Sansthan reads as under:
“The Governor of Uttar Pradesh may call for such returns, accounts and other information with respect to the properties and activities of the society as may be required by him from time to time.”
The functions of the Sansthan are public functions.”
Thus, the Hon’ble Supreme Court was pleased to hold that in a case where a society is discharging public functions and when the directors are Government servants coupled with the fact 80 to 90% of the expenditure of the society was met by the Government, it has to be held that such a society is a State under Article 12 of the Constitution of India.
In the judgment reported in (2005) 4 SCC 649 [ZEE TELEFILMS LTD. AND ANOTHER v. UNION OF INDIA AND OTHERS], the Hon’ble Supreme Court by majority view has held that even in a case where a private body to exercise its public functions and even it is not a part of a State, the aggrieved person has a remedy under the Constitution by way of writ petition under Article 226 of the Constitution of India. Therefore, we are of the considered view that the 1st appellant is amenable to the jurisdiction of this Court under Article 226 of the Constitution of India, since admittedly it is discharging the public functions alone.
(ii).Whether the impugned orders passed by the 1st appellant are stigmatic, punitive and passed on malafide and extraneous consideration.
The only other issue to be decided in the present case on hand is as to whether the orders impugned are liable to be set aside as stigmatic, punitive and passed on malafide and extraneous consideration or not. In order to decide the said issue, the factual issues will have to be gone into. Since the facts are not in dispute and they have been gone into detail in the learned single Judge, we would like to consider the above said facts.
The respondents are appointed in the year 1992. The appointment order was for the period of two years. However they have not been confirmed or extended till the passing of the impugned orders on 30.01.1996. It is also not in dispute that the entire staff went on a mass leave due to the suicidal death of one Dr.Davis Frank Singh. The records would indicate that the respondents had more than an active role in the agitation alleging that the 2nd appellant was solely responsible for the death. A compliant was given by the wife of the deceased and a statement was given by Dr.C.P.Geevan/respondent in W.A.No.2837 of 2002 imputing allegations against the 2nd appellant. The condolence meeting was headed by the respondents and the 2nd appellant refused to co-operate with Dr.C.P.Geevan, resulting in a series of communications between them.
The complaints have been made by the respondents to the 1st appellant against the 2nd appellant and complaints have also been made against the respondents. There was also an enquiry by an I.A.S.Officer appointed by the Government of India at the request of the 1st appellant. It is also not in dispute that of the 11 persons who were appointed on probation 8 of them have been confirmed and one was extended for a period of six months. Therefore, it is only the respondents alone who were left out. A reading of the letter dated Dr.Mathew K.Sabestian dated 28.09.1995 sent to the 1st appellant shows the serious nature of dispute between him and the 2nd appellant. Similarly, Dr.C.P.Geevan also has made many strong allegations against the 2nd appellant. Therefore under those circumstances, the respondents have made specific averments of malafides against the 2nd appellant by stating that at the instigation of the 2nd appellant, the 1st appellant has passed the orders of termination.
It is to be seen that no counter affidavit has been filed by the appellants denying the said allegations specifically raised in paragraph 15 of the affidavit filed in support of the writ petition. The counter affidavit only pertains to the legal issues of the 1st appellant not amenable to the jurisdiction of the Court. The contention of Shri.R.Muthukumaraswamy, learned senior counsel that the counter affidavit filed in the other writ petition will have to be taken for consideration to the case of the respondents as well cannot be accepted for the simple reason that the allegations made in the writ petitions of the respondents have not been made in the other case. Moreover the facts involved in the other writ petition filed in W.P.No.1454 of 1996 are different and the appellants have not even chosen to file any appeal against the orders of the learned single Judge.
It is also to be seen that both the respondents were working in a permanent job before they joining the 1st appellant society. After resigning their earlier permanent job, they have joined the present job. A reading of the orders impugned would show that it has not disclosed any other reason except that were mentioned therein. Therefore, until and unless the stand of the appellants are brought out by way of a counter affidavit denying the allegations made by the respondents they have to be accepted as true. Hence we find that the reasoning of the learned single Judge is perfectly in order.
Further, we are also not inclined to accept the arguments of learned senior counsel, Shri.R.Muthukumaraswamy, that even assuming the allegations are made and proved against the 2nd appellant, it cannot be construed that the 1st appellant has passed the impugned orders based upon the same, since it is the specific allegation of the respondents that on the instigation of the 2nd appellant the impugned orders have been passed which was not denied by the appellants by filing the counter affidavit. It is seen that admittedly the relationship between the respondents and the appellants were strained. It is also seen that inspite of compliant made by the respondents against the 2nd appellant there was neither an enquiry nor any reply.
On the contrary, the impugned orders were passed after the dispute has arisen which continued for some time thereafter. There was also no explanation as to why no decision on confirmation was not made before the passing of the impugned orders and after the expiry of two years of probation. In fact, the 1st appellant himself in and by his letter dated 05.08.1993 has greatly appreciated the work of Dr.C.P.Geevan. Similarly Dr.Mathew K.Sabestian in his complaint to the 1st appellant has clearly narrated the various steps taken by him without even applying for leave. The above said facts would clearly show that the impugned orders are punitive in nature passed on extraneous and malafide considerations. There is no explanation as to why only the respondents alone are found to be not satisfactory as against the 9 other persons who were confirmed.
24.The learned senior counsel Shri.R.Muthukumaraswamy has relied upon the judgments of the Hon’ble Supreme Court reported in (1997) 2 SCC 191 [KUNWAR ARUN KUMAR v. U.P.HILL ELECTRONICS CORPORATION LTD. AND OTHERS]; (2001) 9 SCC 319 [KRISHNADEVARAYA EDUCATION TRUST AND ANOTHER v. L.A.BALAKRISHNA]; (1992) 4 SCC 719 [GOVERNING COUNCIL OF KIDWAI MEMORIAL INSTITUTE OF ONCOLOGY, BANGALORE v. DR.PANDURANG GODWALKAR AND ANOTHER]; AIR 2002 SC 23 [PAVANENDRA NARAYAN VERMA v. SANJAY GANDHI P.G.I. OF MEDICAL SCIENCES AND ANOTHER]; and 2002-II-L.L.J. 813 [S.S.PATIL v. PRESIDENT HON.KHASDAR UGS SANSTHA] and submitted that a mere termination simpliciter of a probationer by stating that the work and conduct is not satisfactory would not amount to a stigma, cast upon the present concern and therefore the impugned orders are perfectly valid.
25.The learned senior counsel further submitted that only when an enquiry is conducted and a finding is given then the order not extending the probation would amount to a punitive order. Hence the learned senior counsel submitted that in the absence of any such finding, it cannot be said that the orders impugned are punitive in nature.
26.It is no doubt true that the words, ‘work and conduct not satisfactory’ by themselves cannot be construed to hold that the same is stigmatic in nature as held by the Hon’ble Supreme Court in the judgment reported in AIR 2002 SC 23 [PAVANENDRA NARAYAN VERMA v. SANJAY GANDHI P.G.I. OF MEDICAL SCIENCES AND ANOTHER] on the questions for consideration is as to whether the orders impugned are punitive and passed on extraneous consideration or not. If the satisfaction of the 1st appellant merely resist on the unsatisfactory performance on the part of the respondents then the contention of the learned counsel for the appellants can be accepted. But in the present case the impugned orders have been passed not based upon the unsatisfactory nature and the character of his performance but on the basis of the respondents other alleged acts and misconduct.
27.Coming to the question whether the discharge of the respondents is punitive or termination simplicitor, it is fairly well settled that when ever a probationer challenges his termination, the Court’s first task will be to apply the test of stigma or the ‘form’- test. If the order survives this examination, the ‘substance’ of the termination will have to be found out. In AIR 2002 SC 23 (PAVANENDRA NARAYAN VERMA VS. SANJAY GANDHI P.G.I. OF MEDICAL SCIENCES), the Supreme Court has laid down the test to determine whether the order of termination is punitive or not, wherein it was held as under:
“…. 21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full scale formal enquiry (b) into allegations involving moral turpitude or misconduct (c) which culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld.”
28.Therefore, it is one thing to say that the respondents were found unsuitable in the job but another thing to say that they were said to have committed some mistake. In order to come to such conclusion, the surrounding circumstances will have to be taken into consideration. As observed earlier, the surrounding circumstances in the present case on hand would clearly establish the fact that the impugned orders are not termination simpliciter. The Hon’ble Apex Court in the judgment reported in (1992) 4 SCC 719 [GOVERNING COUNCIL OF KIDWAI MEMORIAL INSTITUTE OF ONCOLOGY, BANGALORE v. DR.PANDURANG GODWALKAR AND ANOTHER] has observed as follows:
“7.When an appointment is made on probation, it presupposes that the conduct, performance, ability and the capacity of the employee concerned have to be watched and examined during the period of probation. He is to be confirmed after the expiry of probation only when his service during the period of probation is found to be satisfactory and he is considered suitable for the post against which he has been appointed. The principle of tearing off the veil for finding out the real nature of the order shall be applicable only in a case where the Court is satisfied that there is a direct nexus between the charge so levelled and the action taken. If the decision is taken, to terminate the service of an employee during the period of probation, after taking into consideration the overall performance and some action or inaction on the part of such employee then it cannot be said that it amounts to his removal from service as punishment. It need not be said that the appointing authority at the stage of confirmation or while examining the question as to whether the service of such employee be terminated during the continuance of the period of probation, is entitled to look into any complaint made in respect of such employee while discharging his duties for purpose of making assessment of the performance of such employees.”
29.In the judgment reported in AIR 2000 SC 1706 [CHANDRA PRAKASH SHAHI v. STATE OF U.P. AND OTHERS] it has been observed as follows:
“30.Applying these principles to the facts of the present case, it will be noticed that the appellant, who was recruited as a Constable in the 34th Battalion, Pradeshik Armed Constabulary, U.P., had successfully completed his training and had also completed two years of probationary period without any blemish. Even after the completion of the period of probation under Para 541 of the U.P. Police Regulations, he continued in service in that capacity. The incident in question, namely, the quarrel was between two other Constables in which the appellant, to begin with, was not involved. When the quarrel was joined by few more Constables on either side, then an enquiry was held to find out the involvement of the constables in that quarrel in which filthy language was also used. It was through this enquiry that appellant’s involvement was found established. The termination was founded on the report of the preliminary enquiry as the employer had not held the preliminary enquiry to find out whether the appellant was suitable for further retention in service or for confirmation as he had already completed the period of probation quite a few years ago but was held to find out his involvement. In this situation, particularly when it is admitted by the respondent that the performance of the appellant throughout was unblemished, the order was definitely punitive in character as it was founded on the allegations of misconduct.”
30.Similarly in the judgment reported in (2007) 10 SCC 71 [JASWANTSINGH PRATAPSINGH JADEJA v. RAJKOT MUNICIPAL CORPORATION AND ANOTHER], the Hon’ble Supreme Court has held as follows:
“9. The tests governing termination of probation are no longer res integra. When a disciplinary enquiry is initiated on the premise that there are serious allegations of misconduct on the part of the delinquent officer; his explanation thereupon had been rejected pursuant whereto a full-scale formal enquiry has been initiated culminating in a finding of guilt, the order terminating the service would be held to be stigmatic. There may also be cases where the allegations involved moral turpitude on the part of the delinquent officer. The language used in the order of termination of service may ex facie be stigmatic. The language used therein may also show that there was something over and above the assertion that the officer was found unsuitable for the job. The aforementioned tests, however, are not exhaustive.”
“16.If the satisfaction of the employer rested on the unsatisfactory performance on the part of the appellant, the matter might have been different, but in that case, from the impugned order it is evident that it was not the unsatisfactory nature and character of his performance only which was taken into consideration but series of his acts as well, misconduct on his part had also been taken into consideration therefor. It is one thing to say that he was found unsuitable for a job but it is another thing to say that he was said to have committed some misconduct.”
31.The order of termination, in order to be stigmatic, must be in a language imputing something over and above mere unsuitability for the job. We may apply the above said tests in the instant case. In this case, the order of discharging the respondents reads as follows:
“… The Governing Council considered your case for declaration of probation and it is found that your work and conduct during the period of probation to be unsatisfactory. Hence, the Governing Council decided to terminate your probation and to discharge you from the services of SACON. Accordingly you are hereby discharged from the services of SACON with immediate effect. You are requested to hand over the charges to Dr.P.A.Azeez, Principal Scientist, Division of Environmental Impact Assessment.”
32.From the above said judgments, it is clear that the underlying reasons for the impugned orders can be considered by the Court by lifting the veils and find out the truth from the attending circumstances.
33.The respondents were appointed on probation on 1.5.1992 for a period of two years with probation ended on 30.4.1994. But their probation was not extended nor they were confirmed. In the mean time, Dr.Davis Frank Singh, Senior Scientist of Salim Ali Centre of Ornithology and Natural History (SACON) committed suicide. The staff including the respondent in W.A.No.2837/2002 Dr.C.P.Geevan passed the minutes of condolence seeking action against the 2nd Appellant Dr.Vijayan and that he should step down immediately and fastened enquiry on the death of Dr.Davis Frank Singh. In this regard, the respondent Dr.C.P.Geevan had also filed a complaint before Perur Police Station, Coimbatore. Alleging constant harassment by the 2nd Appellant and accusing him of being partisan, the staff including the respondents struck the work and also applied for mass leave. On 04.07.1995, the respondent Dr.C.P.Geevan has sent representation to the 2nd appellant to provide clarifications as requested before the “Fact Finding Study”. Immediately, thereafter, on 30.8.1995, the 2nd Appellant sent the communication stating that he is withdrawing from the project viz., “Keoladeo National Park: Modelling and Simulation studies’ as a Co-investigator. It was only thereafter Governing Council has passed resolution dated 14.9.1995, which reads as under:
“… The Governing Council at its 23rd meeting expressed and resolved the following:
“The Governing Council took a serious view on the indiscipline shown by the staff and the way some of the members of the staff maligned the Institute, its Director and some of the staff. The Governing Council further resolved that no such acts of indiscipline, which includes among other things taking mass casual leave and any kind of strike and, approaching Press and other media or any act which would tarnish the image of the organization, its Director of the staff; will be tolerated in future. And, any such act will attract severe disciplinary action”.
The above is brought to your notice for information and guidance.”
34.Thereafter, the respondent Dr.C.P.Geevan corresponded with the 2nd appellant on 7.10.1995. The letter from the 2nd Appellant (13.11.1995) would clearly show the biased attitude of the 2nd Appellant towards the 1st Respondent. It is in that background, the Governing Council of SACON has passed resolution dated 19.10.1995 reiterating that severe disciplinary action would be taken if any of the staff persisted in their act of discipline. Only in the above background, the impugned order of termination was passed on 30.1.1996.
35.In our considered view, apparently, there is a direct nexus between the alleged acts of indiscipline and the termination. As held by the Supreme Court in (1992) 4 SCC 719 (GOVERNING COUNCIL OF KIDWAI MEMORIAL INSTITUTE OF ONCOLOGY, BANGALORE VS. DR.PANDURANG GODWALKAR AND ANOTHER), the principle of tearing off the veil for finding out the real nature of the order shall be applicable in a case where the Court is satisfied that there is a nexus between the charge levelled and the action taken. In our considered view, the decision was taken to terminate the service of the respondents in the background of the respondents conduct in organising strikes and protest against the 2nd Appellant regarding death of Senior Scientist Dr.Singh. On the materials on record, the order of termination amounted to punishment because the real foundation of the action against the 2nd Appellant appears to be the alleged act of misconduct, though it is not so explicitly stated in the order of termination.
36.Yet another factor to be seen in the present case on hand is that the dispute between the respondents on the one thing and the 2nd appellant as well as the complaints made by the respondents to the 1st appellant, the strained relationship between the appellants and the respondents continued till the passing of the impugned orders. In fact, a request was made by the respondents for the copy of the report submitted by the representative of the Government of India. The above said facts coupled with the facts discussed earlier would clearly show that the impugned orders passed in the writ petitions are not termination simpliciter. Perhaps that is the reason why the appellants have not chosen to controvert the same by way of filing counter affidavit specifically denying the allegations. The learned single Judge has considered the entire matter in detail in allowing the writ petition. We do not find any reason to differ with the decision of the learned single Judge.
37.Accordingly, both these writ appeals are hereby dismissed, confirming the orders of the learned single Judge. In the circumstances of the case, there is no order as to costs.
sri