Telangana High Court
Gowripaga Albert Lael vs Joseph Dsouza on 31 December, 2024
* THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
+ W.P.No.26298 of 2024
%Dated 31.12.2024
# Between:
Gowripaga Albert Lael and two others
PETITIONERS
VERSUS
Joseph D'Souza and 11 others
RESPONDENTS
! Counsel for Petitioners : Mr. Mr. J.Sudheer
^ Counsel for Respondents : Mr. A.Venkatesh, learned Senior Counsel
representing Mr. Ch.Siddharth Sharma,
learned counsel for the respondent
Nos.1 to 5, 7 and 9.
Mr.Prathamesh Kamat, learned counsel
appearing for respondent Nos.6 and 8.
< GIST :
> HEAD NOTE :
? Cases referred :
1. (2003) 10 SCC 733
2. (2024) 6 S.C.R. 934
3. (2002) 5 SCC 111
4. (2023) 4 SCC 498
5. (2015) 4 SCC 670
6. (1981) 1 SCC 722
7. (2019) 16 SCC 303
8. 2020 (6) MHL 662
9. (2005) 6 SCC 657
10. (2020) 1 MHLJ 922
11. 2020 SCC OnLine Bom 934
12. 2023 SCC OnLine SC 435
13. (1998) 8 SCC 1
14. (2003) 2 SCC 107
15. (1977) 2 Supreme Court Cases 806
16. 2023 SCC OnLine SC 1182
17. AIR 1964 SC 1013
18. (1991) 4 Supreme Court Cases 578
19. (2022) SCC Online Del 2213
20. (2008) 12 SCC 675
21. W.P.No.304272 of 2022
22. 2019 SCC Online All 3935
23. (1989) 2 SCC 691
24. (2023) 109 GSTR 402 : 2023 SCC OnLine SS 95
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W.P.No.26298 of 2024
THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
WRIT PETITION No.26298 OF 2024
Mr. J.Sudheer, learned counsel for the petitioners.
Mr. A.Venkatesh, learned Senior Counsel representing Mr. Ch.Siddharth Sharma,
learned counsel for the respondent Nos.1 to 5, 7 and 9.
Mr.Prathamesh Kamat, learned counsel appearing for respondent Nos.6 and 8.
ORDER:
The writ petition has been filed for appointment of an
Advocate Commissioner to administer and manage the affairs of
the respondent Nos.6-9 and to reinstate the former
Trustees/founding Directors of the said respondents to take
appropriate action against the respondent No.11 in failing to
conduct inspection and Audit of the Directors of the respondent
Nos.7 and 9 under the Companies Act, 1956.
2. The petitioners claim to be erstwhile employees of the
respondent Nos.6 – 9 which are public trust/charities. All the
three petitioners claim to have been terminated from service
without enquiry. The respondent No.6 is a Public Trust registered
under The Bombay Trusts Act, 1950. The respondent No.7 is a
Public Charity (Non-profit) registered under section 25 of The
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W.P.No.26298 of 2024
Companies Act, 1956 operating in the name and style of
“Operation Mobilisation India” which was later changed to
“Operation Mercy India Foundation”. The respondent No.8 is also
a Public Charity registered under the Andhra Pradesh Societies
Registration Act, 2001 in the name and style of “Good Shepherd
Community Society”. The respondent No.9 is a Public Charity
registered under section 25 of The Companies Act, 1956 in the
name and style of “O.M. Books Foundation” and the respondent
No.10 is an International Charity registered under The Companies
Act, 1956, of England and Wales with operations in over 110
countries including in India.
3. The petitioners allege that the petitioners were
unceremoniously terminated from service due to the whistle-
blowing activities of the petitioner No.1. The petitioners allege that
the respondent No.1, a Director of the respondent charities, is
mismanaging the affairs of the Trust and misappropriating funds
brought in by the donors. The petitioners hence pray for
appointment of an Advocate Commissioner to act as an
Administrator for managing the affairs of the respondent
Nos.6-9.
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W.P.No.26298 of 2024
4. Learned counsel for the petitioners submits that there are
admitted and established violations of the respondent Trusts and
Public Charities carried out at the behest of its Trustees and
Directors/private respondents in the writ petition. Counsel
submits that the private respondents have abused their position
and caused financial misappropriation and irregularities in the
management of the Public Trusts. Counsel submits that the
respondent Nos.1 to 5 are not qualified to hold positions as
Trustees or Directors of the respondent Nos.6-9. Counsel argues
in favour of the maintainability of the writ petition despite an
alternative remedy being available under The Bombay Public
Trusts Act, 1950.
5. Learned Senior Counsel appearing for the respondent Nos.1-
5, 7 and 9 argues against the maintainability of the writ petition as
being filed against the respondent Nos.1-5 who are private
individuals and are not discharging any public functions. Counsel
submits that the writ petition reeks of personal animosity and is
also barred by the principles of res judicata and constructive res
judicata. Counsel submits that the writ petition is filed beyond the
maximum period of limitation provided under The Companies Act,
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W.P.No.26298 of 2024
2013 and the writ petition is also not maintainable against foreign
non-juristic entities.
6. Learned counsel appearing for the respondent Nos.6 and 8
reiterates the argument on the non-maintainability of the writ
petition also in light of the alternative remedy under The Bombay
Trusts Act, 1950. Counsel submits that the respondent No.8,
which is registered under The Andhra Pradesh Co-operative
Societies Act, 1964, is not amenable to Writ jurisdiction and that
the writ petition involves disputed questions of facts which a Writ
Court cannot adjudicate upon.
7. I have heard the arguments of learned counsel appearing for
the petitioners. I have also heard the submissions made on behalf
of the respondent Nos.1-5, 7 and 9 and the respondent Nos.6 and
8 represented by learned Senior Counsel and learned counsel
appearing for the two sets of the respondents, respectively. The
Court has also considered the material which has been placed for
the Court’s perusal.
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W.P.No.26298 of 2024
8. The decision of the Court is captioned under different
headings. The reasons and conclusions are given on the captioned
issue.
Is the Writ Petition maintainable in its present form ?
9. It would be evident from the prayers in the writ petition that
the petitioners seek removal of the respondent Nos.1-5 who are
presently Directors/Office Bearers/Trustees of the respondent
Nos.6-9 (prayer-a); appointment of an Advocate Commissioner to
act as an Administrator for managing the affairs of the respondent
Nos.6-9 and for reinstating the founding Directors to oversee the
administration of the Trust (prayer-b); direction on the Advocate
Commissioner to formulate a scheme for addressing the individual
grievances of the staff members and employees who were allegedly
illegally terminated (prayer-c); direction on the respondent No.11
(the Regional Director, South Eastern Region, Ministry of
Corporate Affairs) to take appropriate action against the Directors
of the respondent Nos.7 and 9 (prayer-d) and direction on the
respondent No.10 to take necessary steps to revive the respondent
Nos.6-9 institutions to their original mandate of serving public
duties (prayer – e). Prayer-f is directed against the position and
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W.P.No.26298 of 2024
powers given to the respondent No.1 and for a declaration in
respect of the actions taken by the respondent No.1.
10. The cause of action pleaded in the writ petition and the
consequential reliefs prayed for makes it clear that the petitioners
have brought a dispute directed against individuals which is purely
private and personal in nature.
11. Even a bare perusal of the writ petition would show that the
cause of action is one of personal animosity primarily arising out of
the petitioners’ service being terminated by the Directors/persons
in control of the respondent Nos.6-9. The cause of action clearly
lacks the accepted markers of an action within the parameters of
Article 226 of the Constitution of India which must necessarily
include a public element or an infraction of fundamental rights
guaranteed under Part III of the Constitution or the complained act
being in violation of the principles of natural justice: Federal Bank
Ltd. Vs. Sagar Thomas 1 and Mr.R.S. Madireddy Vs. Union of India2.
12. In order to successfully pass the test of maintainability, the
petitioners must also show that the impugned act is by or at the
1 (2003) 10 SCC 733
2 (2024) 6 S.C.R. 934
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behest of a “State” as defined under Article 12 of The Constitution
or a “Person” or “Authority” having the trappings of a State either
in form or in discharge of functions or owing a positive obligation
to the affected party. The writ petition lacks these ingredients by
way of pleadings as well as the material disclosed.
13. It is undisputed that the respondent Nos.6-9 are not
financially, functionally or administratively dominated by the
Government or under the control of the Government. In any event,
mere regulatory control, under a statute or otherwise, will not
adorn the body with the trappings of a “State” or an
instrumentality of a State: Pradeep Kumar Biswas v. Indian
Institute of Chemical Biology 3 . St. Mary’s Education Society Vs.
Rajendra Prasad Bhargava 4 reinforced the dictum that judicial
review of an action can only be brought within Article 226 of the
Constitution if there is a public law element and not for enforcing a
contract of personal service with a further qualification that a
contract of personal service includes all matters relating to the
service of the employee including suspension, termination,
confirmation and transfer. St. Mary‘s (supra) relied on K.K.
3 (2002) 5 SCC 111
4 (2023) 4 SCC 498
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Saksena v. International Commission on Irrigation and Drainage 5
which demarcated the exceptions to a contract of personal service
where the employee is a public servant or is employed by an
authority within the meaning of Article 12 of the Constitution or is
a “workman” within the meaning of section 2(s) of The Industrial
Disputes Act, 1947. Admittedly, the petitioners do not fall within
the exceptions carved out in K.K. Saksena (supra).
14. The mere fact that the respondent No.7 is imparting
education will not make the said respondent amenable to writ
jurisdiction in the absence of a public law element which is
quintessential to the maintainability of the writ petition: St. Mary
Education Society (supra).
15. Admittedly, the schools functioning under respondent No.2
are unaided private institutions and come within the ambit of
section 2(n)(iv) of The Right of Children to Free and Compulsory
Education Act, 2009. Section 12(2) of the said Act clarifies that
the “school” specified under section 2(n)(iv) providing free and
compulsory elementary education shall be reimbursed expenditure
incurred by it by the State. It is not the petitioners’ case that the
5 (2015) 4 SCC 670
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respondent Nos.5-7 receive State aid or finances. Even if it is
assumed that the respondent Nos.5-7 receive State aid, the case is
unsubstantiated and in any event disputed by the respondents.
16. Imparting education, per se, will not pull the respondents
within the stranglehold (in a punitive sense) of Article 226 of the
Constitution unless the respondents can be shown to discharge a
public duty with an attending public law element or that there is a
pervasive State control in their day-to-day affairs. Although the
Supreme Court in Pradeep Kumar (supra) opined that the tests
formulated in Ajay Hasia v. Khalid Mujib Sehravardi 6 are not a
rigid set of principles, the question in each case would be whether
the body is financially, functionally and administratively
dominated by or under the control of the Government in the light
of the cumulative facts as established.
17. The Court, therefore, concludes that the writ petition is for
settling of a personal score with a stark absence of a case being
made out that the respondents are amenable to the writ
jurisdiction of the Court.
6 (1981) 1 SCC 722
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W.P.No.26298 of 2024
18. The essential requirement of the alleged wrongdoer falling
within a “State” or a “Public Authority” is discussed in the next
point.
The Writ Petition is against a Public Trust:
19. The Objects of the respondent No.6 “Operation Mobilisation
India” indicate that the activities of the respondent No.6 are
voluntary in nature with a focus on spreading the teachings of
Jesus Christ. Admittedly, the respondent No.6/Trust does not
receive any financial assistance from the State and would,
therefore, not fall within the definition of “State” under Article 12 of
the Constitution.
20. As stated above, the cause of action pleaded revolves around
personal rights and agenda and does not involve any public law
element: Ramakrishna Mission Vs. Kago Kunya 7 and Lakhichand
Marotrao Dhoble Vs. Joint Charity Commissioner, Civil Lines,
Nagpur 8 . In the latter case, the Division Bench of the Bombay
High Court considered the objects of a Public Trust which engaged
7 (2019) 16 SCC 303
8 2020 (6) MHL 662
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in religious activities to be purely of a voluntary nature without
any financial assistance from the State. The Court opined that
inculcating religious feelings amongst members of a particular
community cannot be equated to a public function or discharge of
a public duty. A public function is generally for achieving a
collective benefit for the public or a section of the public with a
flavour of social or economic affairs in public interest: Binny Ltd.
Vs. S. Sadasivan 9.
21. It is hence clear that the respondent No.6 does not qualify
under the accepted parameters of a State or an instrumentality of
the State. The reason for this view finds place in the next captioned
heading.
The Bombay Public Trusts Act, 1950, specifically provides for the
power to remove a Trustee.
22. The fact that the respondent No.6 is a Public Trust registered
under The Bombay Public Trusts Act, 1950 is not disputed.
Section 41B of the said Act confers the power to institute an
enquiry with regard to a particular charity or a class of charities on
9 (2005) 6 SCC 657
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the Charity Commissioner. Section 41D delineates the procedure
for suspending, removing or dismissing Trustees. Section 47
reiterates the power of the Charity Commissioner to appoint,
suspend, remove or discharge Trustees and invest property to new
Trustees. Section 80 declares that Civil Courts shall not have
jurisdiction to decide or deal with any question covered by the Act
of 1950.
23. The above provisions of The Bombay Public Trusts Act,1950
makes it clear that the respondent No.6/Public Trust is amenable
to the said Act which also provides for the mechanism for the
precise relief which the petitioners have prayed for in the present
writ petition. Besides, the procedure for suspension and removal
of Trustees, as provided under section 41D (2) of the Act, entails
leading of evidence and proving of the charges framed against a
Trustee along with the explanation given by the Trustee. The
aforesaid matters are beyond the periphery of a writ petition:
Totaram Dasuji Rathod Vs. Atmaram Kisansing Rathod 10 and
Eknath Tukaramji Pise Vs. Rama Kawaduji Bhende 11 . The
importance of leading evidence and proving of the charges levelled
10 (2020) 1 MHLJ 922
11 2020 SCC OnLine Bom 934
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W.P.No.26298 of 2024against the Trustee was noted in Totaram Dasuji Rathod (supra) in
view of the harsh consequences of removal from the Trust.
24. The above discussion would lead to the inescapable
conclusion that the petitioners have invoked the writ jurisdiction of
the Court despite a precise statutory remedy being available to the
petitioners under The Bombay Trusts Act, 1950.
This also means that the petitioners have an efficacious alternative
statutory remedy available to them.
25. The Bombay Public Trusts Act, 1950 demonstrates that the
petitioners’ cause can very well be espoused before the Charity
Commissioner and other officers under the Act. The writ petition
does not disclose any challenge to the vires of any statute or any
allegation of violation of fundamental rights or the principles of
natural justice. Therefore, the Court does not find any ground to
entertain the writ petition despite the existence of an efficacious
alternative remedy: South Indian Bank Ltd. Vs. Naveen Mathew
Philip 12. This decision relied on Whirlpool Corporation Vs. Registrar
12 2023 SCC OnLine SC 435
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of Trade Marks 13 and Harbanslal Sahnia Vs. Indian Oil Corporation
Ltd. 14 where the Supreme Court laid down the proposition that
availability of alternative remedy may not be an absolute bar in
certain contingencies.
The Writ Petition is in any event hit by the Principles of Res
Judicata/Constructive Res Judicata
26. The following facts are undisputed in respect of the
captioned heading.
27. The first petitioner had filed a Company Petition seeking
identical relief against the respondents for oppression and
mismanagement under sections 241 and 245 of The Companies
Act, 2013 which included the relief for termination or modification
of Agreements under section 243 of The Companies Act, 2013.
28. The Company Petition (C.P.No.60/241/HDB/2019) was
dismissed on merits by the NCLT, Hyderabad Bench on
22.06.2020. The findings in the order of dismissal include that the
petitioner failed to prove any oppression and management into the
affairs of the Company/Operation Mercy India Foundation (the
13 (1998) 8 SCC 1
14 (2003) 2 SCC 107
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respondent No.7 herein) and also failed to file documentary proof
for considering the prayer in the Company Petition. Incidentally,
the petitioner also prayed for an order of investigation into the
affairs of the Company and to suspend the Board and to appoint a
Commissioner. The first petitioner herein was the first petitioner
in the Company Petition.
29. The petitioner Nos.2 and 3 herein approached the Industrial
Tribunal along with 18 other employees against the termination of
their employment. The request for re-instatement was rejected by
the Industrial Tribunal by an order dated 10.07.2023. The
petitioner No.1 also filed a writ petition (W.P.No.36200 of 2022)
challenging his termination before this Court, said writ petition is
pending as on date.
30. This Court therefore finds substance in the contentions of
the answering respondents that the multiple actions instituted by
the petitioner No.1 for similar relief and the findings of the NCLT
and Industrial Tribunal attract the principles of res judicata and
constructive res judicata: State of Uttar Pradesh Vs. Nawab
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W.P.No.26298 of 2024
Hussain 15, Samir Majumdar Vs. Union of India 16. A three Judge
Bench of the Supreme Court in the former decision explained
‘constructive res judicata’ as a rule which postulates that if a plea
could have been taken by a party in an earlier proceeding, he/she
would not be permitted to take that plea against the same party in
a subsequent proceeding founded on the same cause of action.
The rule is anchored on public policy as no party can be
encouraged to institute one proceeding after another and urge new
grounds every time. Amalgamated Coalfields Ltd. Vs. Janapada
Sabha, Chhindwara 17, categorically held that the principle of res
judicata is also applicable to writ petitions.
31. The above facts would indicate that the present writ petition
has been filed beyond the statutory time period provided under The
Companies Act, 2013 for filing an Appeal from an order of the
NCLT to NCLAT. The order of the NCLT, Hyderabad dismissing the
Company Petition on 22.06.2020 means that the challenge to the
said order could only have been filed within 45 + 45 days from the
date on which a copy of the order of NCLT was made available to
15(1977) 2 Supreme Court Cases 806
162023 SCC OnLine SC 1182
17AIR 1964 SC 1013
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the petitioner under section 421(3) read with the proviso to The
Companies Act, 2013.
32. It is evident that the petitioners seek to re-agitate the very
same points in the writ petition which were raised before the NCLT
without complying with the timelines of the challenge provided
under The Companies Act, 2013. Article 226 of the Constitution of
India cannot be used to entertain belated claims unless the
petitioners offer a credible explanation.
The writ petition is not maintainable against a Society
33. The respondent No.8/Good Shepherd Community Society is
registered under The Andhra Pradesh Co-operative Societies Act,
1964 whose objects include imparting spiritual teachings, setting
up primary health and literary centers. Such a society cannot fall
within the definition of “State” within the meaning of Article 12 of
the Constitution of India. A writ petition is also not maintainable
against a Co-operative Society: Chander Mohan Khanna Vs.
National Council of Educational 18. The Supreme Court in this case
agreed with the contention that NCERT is a Society registered
18 (1991) 4 Supreme Court Cases 578
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under the Societies Registration Act and was not a “State” under
Article 12 of the Constitution.
34. The respondent No.10/O.M International situated in United
Kingdom is admittedly a foreign entity which has no control over or
connection with the respondents. The respondent No.12/Bishops
Council and Synod is also not a legal or statutory entity
incorporated under any law. Its constitution is approved by the
Council of Bishops on 31.07.2014 with four Bishops including a
Presiding Bishop. It is the headquarters of the Good Shepherd
Community Church.
35. In Prakash Singh Vs. Union of India 19, a Division Bench of
the Delhi High Court held that the respondent No.2 therein i.e.,
Agence France Press is an entity of France and cannot be termed
as “State” under Article 12 of the Constitution of India and
therefore is not amenable to Writ jurisdiction.
36. The Court also agrees with the contentions raised on behalf
of the respondents that the writ petition concerns disputed
questions of fact since the petitioners have only proceeded on the
19 (2022) SCC Online Del 2213
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allegations of mismanagement and corrupt practices which have
been disputed by the respondents. The nature of allegations
require evidence and conclusive proof which the Writ Court is not
equipped to deal with: State of Uttar Pradesh Vs. Uttar Pradesh
Rajya Kanij Vikas Nigam SS 20.
37. The decisions cited on behalf of the petitioner are
distinguishable on facts as well as in law. D.Bright Joseph Vs.
Church of South India 21 involved a challenge to the election of a
member of the Synod at the instance of an elected member. The
Supreme Court held that the writ petition was maintainable as the
institution in that case was discharging a public duty. In the
present case, the reliefs claimed are entirely in the realm of private
law and the petitioners, as ex-employees, are seeking re-
instatement. Roychan Abraham Vs. State of U.P. 22 was considered
in St.Mary’s Education Society (supra) where the Supreme Court
held that a writ petition against an educational institution cannot
be maintained if there is no direct nexus between the act
complained of and discharge of public duty. Andi Mukta Sadguru
Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak
20 (2008) 12 SCC 675
21 W.P.No.304272 of 2022
22 2019 SCC Online All 3935
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Trust Vs. V.R. Rudani 23 was a case involving a public trust running
a college affiliated to the Gujarat University with a dispute of pay
scales in relation to the governing provisions of the University
Grants Commission. Godrej Sara Lee Ltd. Vs. Excise and Taxation
Officer-cum-Assessing Authority 24 considered the issue of an
alternative remedy of appeal under section 33 of the Haryana
Value Added Tax Act, 2003. The Supreme Court held that a writ
petition can be maintained to deal with a pure question of law
despite existence of the alternative remedy.
38. The above discussion under the separate heads leads to the
firm conclusion that the writ petition is not maintainable. The
fundamental consideration for this view remains the personal
cause of action brought to the Court without any public law
element or violation of fundamental rights of the petitioners at the
hands of the State or instrumentalities of the State.
39. This Court therefore does not have any hesitation to dismiss
the writ petition on the ground of maintainability.
23 (1989) 2 SCC 691
24 (2023) 109 GSTR 402 : 2023 SCC OnLine SS 95
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W.P.No.26298 of 2024
40. W.P.No.26298 of 2022, along with all connected
applications, is accordingly dismissed as not being maintainable.
Interim orders, if any, shall stand vacated. There shall be no order
as to costs.
_________________________________
MOUSHUMI BHATTACHARYA, J
Date: 31.12.2024
Note: L.R. copy to be marked
VA/BMS