Calcutta High Court (Appellete Side)
Kausik Majumdar vs State Of West Bengal & Ors on 23 December, 2024
Author: Harish Tandon
Bench: Harish Tandon
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
THE HON'BLE JUSTICE HARISH TANDON
&
THE HON'BLE JUSTICE PRASENJIT BISWAS
MAT 490 of 2024
With
CAN 1 of 2024
Kausik Majumdar
Vs.
State of West Bengal & Ors.
Appearance:
For the Appellant : Mr. Samim Ahammed, Adv.
Ms. Ambiya Khatun, Adv.
Mr. Enamul Haque, Adv.
Mr. D. Abbasi, Adv.
For the State : Mr. Biswabrata Basu Mallick, Ld. AGP
Mr. K.M.Hossain, Adv.
For the Private Respondents : Mr. Ujjal Ray, Adv.
Mr. Atreya Chakraborty, Adv.
Judgment On : 23.12.2024
Harish Tandon, J.
The instant appeal arises from a judgment dated 23.02.2024 passed
by the Single Bench in WPA 16573 of 2019 by which the writ petition filed
by the appellant was dismissed as not maintainable.
2
Admittedly, the appellant was employed as an office assistant in
W.W.A, Cossipore English School, the Respondent no. 2 herein, in the year
1992. Subsequently, the appellant was brought in a teaching faculty as a
computer teacher and the service was terminated on October 29, 2018. The
reason for termination was founded upon an allegation of committing a
sexual harassment. The writ petition was filed challenging the said order of
termination on the premise of violation of a principle of natural justice with
the consequential relief of reinstatement in service and release of the arrear
salary and all financial benefits attached to the said post.
On the conspectus of the aforesaid facts, a preliminary objection was
raised by the Respondent no. 2 that the same is not maintainable as the
Respondent no. 2 being an unaided private school is not amenable to writ
jurisdiction as the action was taken under the realm of a private law and
there is a complete lack of public law element involved in it. In other words,
it is sought to be contended that the employment of the appellant with the
respondent no. 2 is governed by the contract between them and being an
unaided private school, they do not come within the folds of “authority”
under Article 12 of the Constitution of India.
The Single Bench after considering the various judgments including
St. Mary’s Education Society & Anr. Vs. Rajendra Prasad Bhargava &
Ors. reported in (2023) 4 SCC 498 held that the Respondent no. 2 cannot
be regarded as an authority nor a State within the meaning of Article 12 of
the Constitution of India and, proceeded to dismiss the writ petition on the
ground of maintainability.
3
The Counsel for the appellant assailed the said order and sought to
contend that the Respondent no. 2 was discharging a public duties in
imparting education to the children and, therefore, has an element of an
authority within the four corners of the Article 12 of the Constitution of
India. It is vociferously submitted that it is not necessary that the writ is
maintainable only against the State or its instrumentality but can also be
maintained against the other authorities if they are discharging the public
duties. It is further submitted that the Respondent no. 2 are governed by a
statute and once they have violated the statutory provisions and discharging
the public duties in imparting education to the children, the writ petition is
maintainable. It is sought to be contended that the West Bengal
Administrative (Adjudication of School Disputes) Commission Act, 2008 was
promulgated by the State Government for better protection of the right of
teacher and non-teaching staffs of the school in the State which defines the
“school” under Section 2(i) to mean a “school” as recognised by the State but
does not include the Government school and further included the unaided
school within its meaning. It is thus contended that the definition of a
“school dispute” in Section 2(k) have taken within its folds all disputes
including the service matters of a person in a school. According to the
learned Counsel for the appellant the moment the “school disputes” imbibed
within itself the service matters of a person in school, the act of termination
comes within the school dispute and therefore, the writ petition is
maintainable. Taking a clue from Section 12 of the Act of 2008 providing the
Constitution of a Commission, it is submitted that so long the Commission
is not constituted under the said Act, the remedy by way of a writ petition is
4
maintainable and, therefore, the judgment of the Single Bench needs
interference.
To buttress the aforesaid contention the learned Advocate for the
appellant audaciously submits that the teacher in an unaided private school
are not a workman as defined under the Industrial Disputes Act, 1947 as
held by the Apex Court in Miss A. Sundarambal v. Government of Goa.
Daman & Diu and Ors. reported in (1988) 4 SCC 42. According to him,
the Apex Court in the above noted decision showed his concern over the
illegal and unjust termination of the services of the teacher and to activate
the social justice issued mandamus upon the Government to take steps in
bringing the appropriate legislation providing the adjudication of the dispute
between the teachers and the management of the educational institution’s
legislation which, in fact, was promulgated by the State Government by
enacting the West Bengal Administrative (Adjudication and School
Disputes) Commission Act, 2008. The learned Advocate for the appellant
further relies upon a Single Bench judgment of this Court in Bineeta
Patnaik Padhi vs. Union of India and Ors. reported in (2021) 1 CLT 21
for the proposition that once the private unaided educational institution are
discharging the public duties in imparting education to the children, any
action of the said school is susceptible to be challenged under Article 226 of
the Constitution of India as such educational institution would be regarded
as a State under Article 12 of the Constitution of India. It is thus submitted
that the writ petition raising a dispute on termination of service by the
Respondent no. 1 is maintainable and, therefore, the order of the Single
Bench in this regard is liable to be set aside.
5
On the other hand, the school authorities supported the judgment of
the Single Bench that they being the private unaided educational institution
are neither the State nor the authority under Article 12 of the Constitution
of India and, therefore, the writ petition has been rightly dismissed as not
maintainable. The Counsel for the School authorities relied upon judgment
of the Apex Court in St. Mary’s Education Society (supra) in support of
their contention that discharge of the public duty being one of the relevant
factors in bringing the educational institution within the folds of the State or
the authority but the services of a teacher qua the School Authorities are
under the realm of a private law and, therefore, the writ petition is not
maintainable.
The Counsel for the School Authorities submits that a distinction has
to be drawn on the dispute involved in the writ petition between the action
of the authorities in discharge of the public duties and the service conditions
of the teachers which is purely contractual in nature as in later case, it does
not involve the public element and, therefore, the writ in this regard is not
maintainable. In support of the aforesaid contention several judgments of
the Supreme Court as well as the High Courts are cited making a distinction
between an action perceived to be in discharge of the public duties and
within the realm of a private law and according to the Counsel, those
judgments are affirming the concept that the relation between school and its
teacher are not within the purview of public duty. It is thus submitted that
the judgment of the Single Bench so relied upon by the appellant is contrary
to the judgment of the Supreme Court more particularly, St. Mary’s
6
Education Society (supra) and, therefore, cannot be regarded as a good
law.
The Counsel appearing for the State submits that the cause of action
pleaded in the writ petition is relatable to a dispute between the school
authorities and its teacher and in the event the Court passes any direction,
the State will comply the same. However, the Counsel for the State could not
apprise the Court on the enforceability of the Act of 2008 though it was
notified in the Kolkata Gazette, Extraordinary on December 29, 2011.
On the backdrop of the aforesaid facts and the submissions so
advanced, the limited question involved in the instant appeal is whether the
writ petition is maintainable against the unaided private educational
institution in relation to a dispute concerning the termination of the service
on the touchstone of the public duty or in the realm of a private law. The
plea of Act of 2008 was taken before the Single Bench and taking into
account the various provisions contained therein and the law laid down in
St. Mary’s Education Society (supra) it is held that the writ petition
concerning the disputes relating to the condition of service of a teacher in
private unaided educational institution is not amenable to a writ jurisdiction
under Article 226 of the Constitution of India.
As indicated above, the argument of the appellant is basically founded
upon the Act of 2008 more particularly, the definition of a “school” and
“school dispute” appearing in Section 2(i) and (k) thereof. Though the said
Act of 2008 was duly published in the Official Gazette but, Section 1(2) of
the said Act postulates that it shall come into force on such date asthe State
7
Government by notification appoint. None of the Counsels appearing before
us could apprise as to whether any notification bringing in force of the said
act was subsequently issued and/or published by the State Government. Be
that as it may since the Single Bench has taken into consideration several
provisions of the said Act and held that the said Act does not lead to a point
that the dispute between the teacher and the school management would
come under the purview of a public duty, we, therefore, proceeded to decide
the said point in order to arrive at a decision whether it has got any bearing
on the core issue indicated hereinabove.
The definition of a school given under Section 2(i) clearly indicates
that the Government school and school recognised under the State Act
would not come within such definition. However, the inclusive definition
expanded its horizon to imbibe within itself its folds unaided school by
virtue of an explanation appended thereto defining the “Government School”
to mean school maintained and managed by the State Government or the
Government of India or the Railway Board under the Ministry of Railways,
Government of India. Indubitably, the Respondent no. 2 is an unaided
private educational institution having no support from the Government by
way of a grant and is solely controlled and managed by its managing
committees. “School disputes” have included the service matter of a person
in a school which is further defined and explanation appended thereto of
service of a person in a school and any matter relating to the disciplinary
action taken. The “Specified State Act” is further defined in Section 2(n) of
the Act to mean the State Act specified in the said schedule to the said Act
which does not include any special Act relatable to aided private educational
8institution. The scheme of the Act as it appears from its bare look contained
the provision providing a forum i.e. a Commission to be constituted for
adjudication and trial of any school disputes and the matter connected
and/or related incidental thereto and exclude the jurisdiction of a Civil
Court. Section 12 and 13 of the said Act is quoted as under:
“12. (1) This Act shall apply to every specified State Act with effect
from such date as the State Government may, by notification, appoint,
and the Commission, save as otherwise expressly provided under such
specified State Act and subject to other provisions of this Act, shall
exercise jurisdiction, powers and authority in relation to all matters of
adjudication or trial of any school disputes and the matters connected
therewith or incidental thereto; and no civil court shall, with effect
from such date, exercise any jurisdiction, powers of authority in the
matter or adjudication or trial of any school disputes.
(2) Notwithstanding anything contained elsewhere in this Act, all
proceedings triable by any court or courts in accordance with the
provisions of the Code of Criminal Procedure, 1973, shall continue to
be tried by such court, and the Commission shall have no jurisdiction
to try such proceedings.
13. (1) Save as otherwise expressly provided in this Act, the
Commission shall have jurisdiction to adjudicate a school dispute and make
order to a person directing redressal of the school dispute.
(2) In particular and without prejudice to the generality of the
provision of sub-section (1), the Commission shall, in adjudicating the school
dispute, have jurisdiction to declare that –
(i) a law or an instrument, statutory or otherwise, or an act has
or shall have such effect or no such effect.
9
(ii) a party has or shall have such right or duty or no such right
or duty, and
(iii) an act has or shall have such effect or no such effect,
Subject to such conditions and restrictions, if any, as may be
mentioned in the judgment:
Provided that where the matter relates to disposal of question
of constitutional validity of any provision of any specified State Act,
the matter shall be decided by a Bench constituted of at least three
Members of which the Chairman shall be one.
(3) The Commission shall, in making order for redressal of the
school dispute, have jurisdiction to make order to the person directing
him to pay such cost, compensation and interest, if any, as may be
mentioned in the order.”
It is manifest from the aforesaid Section that it has an applicability in
relation to a Specified State Acts and the Commission shall assume powers
and/or jurisdiction after a notification is issued by the State Government.
The intention of the legislation is laudable that any dispute concerning the
Specified State Act as included in the Schedule appended thereto is
amenable to be decided and/or decided under the Act of 2008. An argument
is advanced that so long the Commission is not constituted by the State
Government in exercise of power conferred therein, the remedy by way of a
writ before the High Court cannot be said to be curtailed does not appear to
hold water. The dispute between the teacher and the school management
does not emanate from the Specified State Acts and is purely a contractual
in nature. The spirit of the provisions of law is to be culled out from the
language used therein and the moment the Court found that the State Act
10
applies to every specified Act, unless such specified Act provides and/or
protects the service condition of the unaided private school institution, the
Commission cannot assume the jurisdiction; as a corollary, the writ is not
maintainable. The contention of the appellant that since the Commission
has not been constituted the writ is not acceptable, as we find that the
Commission can assume jurisdiction only in relation to a matter arising
from a Specified State Act and not otherwise.
It leads to a core issue as to whether the writ petition is maintainable
against the unaided private school institution in relation to a dispute
between a teacher and the school management and in support of a
maintainability, the reliance is placed by the appellant upon a judgment of
the Apex Court in case of Miss A. Sundarambal (supra). The question
involved therein was whether the educational institution would be regarded
as an industry and the teachers of the said institution would come within
the definition of a “workman” under the Industrial Disputes Act, 1947. The
Apex Court ultimately held that the teachers employed in the educational
institution imparting primary, secondary, graduate or post-graduate
education cannot be called as a workman within the meaning of Section 2(s)
of the Industrial Disputes Act. The definition of a ‘workman’ as defined in
Section 2(s) of the Industrial Disputes Act involved the primary three
conditions – firstly, the person must be employed in industry for higher
reward; secondly, person must be engaged in a skilled or unskilled, manual,
supervisory, technical or clerical work and lastly, the person should not fall
under the other four Clauses i.e. Clauses (i) to (iv) indicated in Section 2(s)
of the Industrial Disputes Act.
11
The role of a teacher in an educational institution is not only to
educate children in a particular subject but have more onerous duty of
moulding their character, building up the personalities and above all to
make them a responsible citizen of the country. The suggestions, the voice
and/or personality of the teacher is often imitated by the children to
inculcate the values in life to make them a responsible citizen contributing
in the growth and development of the country. It would be preposterous to
suggest that such teacher would be regarded as a workman under Section 2
of the Industrial Disputes Act which, in fact, is held by the Apex Court in
the said judgment. However, the Apex Court was considering the social and
economic suppression of the teachers in the hands of an unscrupulous
managing committee of the educational institution which has a social
impact. The direction was passed to bring an appropriate legislation and,
therefore, we do not find that such judgment has any bearing in the instant
matter.
The judgment rendered by the Single Bench in B. Patanaik Padhi
(supra) though decided on the identical facts but the same is to be tested on
the subsequent judgment rendered by the Apex Court in St. Mary’s
Education Institution (supra). The judgment of the High Court if runs
counter to the decision of the Apex Court declaring the law under Article
141 of the Constitution of India, the judgment of the Supreme Court would
prevail and any judgment of the High Court runs counter to the same would
not be regarded as a good law.
12
In St. Mary’s Education Society (supra) the principal respondent
therein was an employee of a private unaided educational institution and
was served with the show cause notice cum suspension order alleging
various misconduct in service. Ultimately, the service of the principal
respondent therein was terminated and the said principal respondent
challenged the order of termination on several grounds by filing a writ
petition before the High Court. The writ petition was rejected by the Single
Bench on the ground of non-maintainability thereof which was set aside by
the Division Bench and ultimately the matter came up before the Supreme
Court. The pivotal issue involved before the Supreme Court was whether a
writ petition is maintainable against the private unaided educational
institution in relation to a termination of a service of its teachers. The status
of the educational institution in the above report as well as in the instant
case stands on a same parity i.e the private unaided educational institution
having no Government control over the functioning and administration of
the school although they are affiliated with the State or the Central Board of
education and governed by the Rules and the bye-laws thereof. The point
was taken for consideration as to whether such private unaided educational
institution having no aid or control of the Government or its instrumentality
would be regarded as a State within the meaning of Article 12 of the
Constitution of India. The Apex Court after taking into consideration the
various judgments including an issue relating to public duties or
involvement of a public element held that a distinction is to be drawn
between an institution discharging the public duties and/or public
functions and the steps/actions taken against its employee under the realm
13
of a private law. It is held that the scope of a mandamus is basically limited
to the enforcement of a public duty and, therefore, any matter brought
before the Court in this regard is to be tested whether the cause of action so
pleaded comes within the ambit of the nature of duties encompassing the
public duty or in other words there is an involvement of a public law
element in such action. In pursuit of deciding the said issue, the Apex Court
also considers the relevant fact that such unaided private educational
institution is affiliated to a statutory Board constituted by the Government
to regulate its educational activities which is answered in the following:
“68. In the aforesaid context, we may only say that merely because the
State Government has the regulatory power, the same, by itself, would
not confer any such status upon the institution (school) nor put any
such obligations upon it which may be enforced through issue of a
Writ under Article 226 of the Constitution. In this regard, we may refer
to and rely upon the decision of this Court in the case of Federal Bank
(supra). While deciding whether a private bank that is regulated by the
Banking Regulation Act, 1949 discharges any public function, this
Court held thus:-
“33. … in our view, a private company carrying on banking
business as a scheduled bank, cannot be termed as an
institution or a company carrying on any statutory or public
duty. A private body or a person may be amenable to writ
jurisdiction only where it may become necessary to compel such
body or association to enforce any statutory obligations or such
obligations of public nature casting positive obligation upon it.
We don’t find such conditions are fulfilled in respect of a
private company carrying on a commercial activity of banking.
14Merely regulatory provisions to ensure such activity carried on
by private bodies work within a discipline, do not confer any
such status upon the company nor put any such obligation upon
it which may be enforced through issue of a writ under Article
226 of the Constitution. Present is a case of disciplinary action
being taken against its employee by the appellant Bank. The
respondent’s service with the Bank stands terminated. The
action of the Bank was challenged by the respondent by filing a
writ petition under Article 226 of the Constitution of India. The
respondent is not trying to enforce any statutory duty on the
part of the bank.”
34. Thus, contracts of a purely private nature would not be
subject to writ jurisdiction merely by reason of the fact that
they are structured by statutory provisions. The only exception
to this principle arises in a situation where the contract of
service is governed or regulated by a statutory provision. Hence.
for instance, in K.K. Saksena [K.K. Saxena v. International
Commission on Irrigation & Drainage, (2015) 4 SCC 670 : (2015)
2 SCC (Civ) 654 : (2015) 2 SCC (L &S) 119] this Court held that
when an employee is a workman governed by the Industrial
Disputes Act, 1947, it constitutes an exception to the general
principle that a contract of personal service is not capable of
being specifically enforced or performed.
35. It is of relevance to note that the Act was enacted to provide
for the regulation and registration of clinical establishments
with a view to prescribe minimum standards of facilities and
services. The Act, inter alia, stipulates conditions to be satisfied
by clinical establishments for registration. However, the Act
does not govern contracts of service entered into by the hospital
15
with respect to its employees. These fall within the ambit of
purely private contracts, against which writ jurisdiction cannot
lie. The sanctity of this distinction must be preserved.
(emphasis supplied)”
Ultimately, the Apex Court held that though the writ petition against
an institution or person or a body of person is maintainable if they
discharge a public duty or the public functions either statutory or otherwise,
but while ascertaining the same, the Court must take into account whether
the person seeking the relief would achieve the collective benefit of the
public or a section of it. It is further held that so far as the service related
disputes are concerned between a private unaided educational institution
and its teachers or employees does not involve a public duty or public
element and, therefore, is outside the purview of the writ jurisdiction under
Article 226 of the Constitution of India in the following:
“69. We may sum up our final conclusions as under:-
(a) An application under Article 226 of the Constitution is
maintainable against a person or a body discharging public duties
or public functions. The public duty cast may be either statutory or
otherwise and where it is otherwise, the body or the person must be
shown to owe that duty or obligation to the public involving the
public law element. Similarly, for ascertaining the discharge of
public function, it must be established that the body or the person
was seeking to achieve the same for the collective benefit of the
public or a section of it and the authority to do so must be accepted
by the public.
16
(b) Even if it be assumed that an educational institution is imparting
public duty, the act complained of must have a direct nexus with
the discharge of public duty. It is indisputably a public law action
which confers a right upon the aggrieved to invoke the
extraordinary writ jurisdiction under Article 226 for a prerogative
writ. Individual wrongs or breach of mutual contracts without
having any public element as its integral part cannot be rectified
through a writ petition under Article 226. Wherever Courts have
intervened in their exercise of jurisdiction under Article 226, either
the service conditions were regulated by the statutory provisions or
the employer had the status of “State” within the expansive
definition under Article 12 or it was found that the action
complained of has public law element.
(c) It must be consequently held that while a body may be discharging
a public function or performing a public duty and thus its actions
becoming amenable to judicial review by a Constitutional Court, its
employees would not have the right to invoke the powers of the
High Court conferred by Article 226 in respect of matter relating to
service where they are not governed or controlled by the statutory
provisions. An educational institution may perform myriad
functions touching various facets of public life and in the societal
sphere. While such of those functions as would fall within the
domain of a “public function” or “public duty” be undisputedly
open to challenge and scrutiny under Article 226 of the
Constitution, the actions or decisions taken solely within the
confines of an ordinary contract of service, having no statutory
force or backing, cannot be recognised as being amenable to
challenge under Article 226 of the Constitution. In the absence of
the service conditions being controlled or governed by statutory
17provisions, the matter would remain in the realm of an ordinary
contract of service.
(d) Even if it be perceived that imparting education by private unaided
the school is a public duty within the expanded expression of the
term, an employee of a non-teaching staff engaged by the school for
the purpose of its administration or internal management is only
an agency created by it. It is immaterial whether “A” or “B” is
employed by school to discharge that duty. In any case, the terms
of employment of contract between a school and non-teaching staff
cannot and should not be construed to be an inseparable part of
the obligation to impart education. This is particularly in respect
to the disciplinary proceedings that may be initiated against a
particular employee. It is only where the removal of an employee of
non-teaching staff is regulated by some statutory provisions, its
violation by the employer in contravention of law may be interfered
by the court. But such interference will be on the ground of breach
of law and not on the basis of interference in discharge of public
duty.
(e) From the pleadings in the original writ petition, it is apparent that
no element of any public law is agitated or otherwise made out. In
other words, the action challenged has no public element and writ
of mandamus cannot be issued as the action was essentially of a
private character.
70. In view of the aforesaid discussion, we hold that the learned single
Judge of the High Court was justified in taking the view that the
original writ application filed by the respondent no. 1 herein under
Article 226 of the Constitution is not maintainable. The Appeal Court
could be said to have committed an error in taking a contrary view.”
18
The Co-ordinate Bench comprising one of us, (Harish Tandon, J.) in
Narayana School, Barasat and Anr. Vs. Anisur Rahman and Ors.
reported in (2022) 2 CLT 466 held that the writ petition is not
maintainable against the private unaided educational institution in relation
to its employee in the following:
“25. The law enunciated in the above reports leaves no ambiguity that
the writ petition is maintainable against the private institution
provided it discharges the public duties and most important public
functions. Merely because a writ petition can be maintained against
the private individuals discharging the public duties and/or public
functions yet the writ petition is not maintainable if the enforcement
is sought to be secured under the realm of private law. It would not be
safe to say that the moment the private institution is amenable to writ
jurisdiction yet every dispute concerning the said private institution is
amenable to writ jurisdiction. It largely depends upon the nature of
the dispute and the enforcement of the right by an individual against
such institution. The right which purely originates from a private law
cannot be enforced taking aid of the writ jurisdiction irrespective of
the fact that such institution is discharging the public duties and/or
public functions. The scope of the mandamus is basically limited to an
enforcement of the public duty and, therefore, it is an ardent duty of
the court to find out whether the nature of the duty comes within the
peripheral of the public duty. There must be a public law element in
any action.
27. The plea of the Respondent no. 1 that the appellant is affiliated with the
Central Board of Secondary Education and guided and regulated by the bye-
laws framed by it does not appear to be correct. The Central Board of
Secondary Education though a statutory authority amenable under the writ
19jurisdiction but, his horizon is restricted to regulating, guiding and
conducting the examinations and issuing certificates to the students. The
said statutory authority does not have any direct or pervasive control over
the private affairs of the institution except to the extent of affiliation nor
the appointment of the teachers are required to be approved by it. The said
Board has no control over the financial affairs of the institution nor over the
functioning of the said institution except to the extent of imparting education
in terms of the bye-laws. Even though one of the conditions of the bye-laws
appears to have some remotest nexus to the cause of action pleaded in the
writ but the same is within the circumference of the affiliation and does not
impinge upon the private contracts.
28. We, therefore, do not find that the decision of the Single Bench in this
regard can be sustained wherein it has been held that the appellant
discharging the public duties and/or functions are amenable to the
jurisdiction of the Writ Court and writ petition in this regard is
maintainable. We have already held that the Respondent no. 1 has sought to
enforce the rights emanating from the private law, even if the appellant being
the private unaided educational institution is discharging the public
duties/functions but the writ petition is not maintainable in relation to a
cause of action pleaded in the writ petition.
In view of the discussion made hereinabove we do not find any
infirmity and/or illegality in the impugned order.
The appeal is thus dismissed.
The connected application, if there by any, is also dismissed.
No order as to costs.
20
Urgent Photostat certified copies of this judgment, if applied for, be
made available to the parties subject to compliance with the requisites
formalities.
(Harish Tandon, J.)
I agree.
(Prasenjit Biswas, J.)