IIM Kozhikode, an autonomous body registered under Society act 1860, following Central Civil Services (Classification, Control & Appeal) Rules for its employees , 1965 is not an instrumentality of State under Article 12 of the Constitution as such Writ Petition over service dispute is not maintainable: Kerala High Court

 High Court of Kerala at Ernakulam  

WP(C) NO. 25484 OF 2017

Petitioners: Shiny George Ambat .

Respondents: Union of India  and Ors .

 

·        Prayer in the Writ petition:

1)To call for the records leading to the decision in the 79th Board Meeting of the 3rd respondent whereby the decision not to take further action on Exhibit P32 appeal submitted by the petitioner has been taken and to quash the same by the issuance of writ of certiorari or other appropriate writ, order or direction.

2) Declare that the petitioner herein is fully entitled to be retained and confirmed in service as Chief Finance Officer in the 2nd respondent Institute and to direct the respondents to reinstate the petitioner in service and to consider declaration of her probation in the post of Chief Finance Officer by the issuance of writ of mandamus or any other appropriate, writ, order or direction.

3)Declare that the petitioner herein is entitled to be reinstated in service with full back wages and continuity in service for the period she was kept out of service illegally and to direct the respondents to disburse to petitioner full back wages for the period she was kept out of service and to grant her continuity of service from the date she was suspended from service, by issuance of writ of mandamus, or other appropriate writ, order or direction.PARA-1.

 

• ·        Facts about the case:

Petitioner was working on the post of Chief Finance Officer Financial Advisor under the Sree Chitra Tirunal Institute for Medical Science and Technology who was suspended for alleged irregularities. and later on, her services were terminated based on fact-finding report on account of unsatisfactory performance. PARA-3.

 

• ·        Case of Petitioner:

1.   Petitioner was discharged from service which is punitive and is without following the mandatory provisions and Instructions on Probation of Central Government Employees. PARA-7.

2.    Petitioner joined the 2nd respondent institution after submitting technical resignation and that a lien for 2 years is to be maintained in the parent department. PARA-7.

3.    Impugned order is a non-speaking one and is passed without application of mind and that the petitioner is also entitled to protection under Article 311 of the Constitution of India. PARA-8.

4.   Regulations of Indian Institute of Management provide that conditions of service of non-teaching regular staff are functionally approved by the Director as per the CCS Rules. It is, therefore, contended that the conditions of service at the time of appointment being as per the CCS Rules, the termination of service should also be strictly in accordance to such rules. PARA-9.

5.   Indian Institute of Management Society, Kozhikode is registered under the Societies Registration Act. The institute had decided to adopt the Central Civil Services Rules to govern the service conditions of its employees. Therefore, at the time the petitioner entered service as also at the time when the proceedings were initiated and the decision taken to terminate her probation was adopted, the petitioner was an employee governed by the provisions of the CCS Rules and the termination from service which was clearly against the provisions of the rules was therefore illegal and is liable to be interfered with. PARA-10.

6.      Petitioner places reliance on the judgments of the Apex Court to contend that a writ can be issued against an authority performing public duty. Some of the decisions cited are:

                        I. Anandi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R Rudani and others; [AIR 1989 SC 1607].

                              II. Janet Jeypaul v. SRM University and Others [AIR 2016 SC 73].

                            III. S.Azeez Basha v.Union of India [AIR 1968 SC 662].

                           IV.  Ajai Hasia and others v. Khalid Mujib Sehravardi and others [1981(1) SCC 722].

                           V.   Sukhdev Singh and Others v. Bhagatram Sardar Singh Raghuvanshi and Another [AIR 1975 SC 1331].

                           VI. Rajasthan State Electricity Board, Jaipur v. Mohan Lal and Others [AIR 1967 SC 1857].

                         VII. Judgment of Rajasthan High Court in Anjana Vyas (Dr.) v. National Law University and others [2017 KHC 3554]. PARA-16.

 

• ·        Case of Respondents:

1.      Petitioner was on probation and has no right under law to hold the post and that her service can be terminated at any point of time and that the termination was only a termination of probation and was not punitive.

2.      Petitioner has not followed the basic accounting principle of maintaining a separate bank account for the funds belonging to IIM, Amritsar, and the Petitioner was not found suitable for the post.

3.      Petitioner was relieved of her duty solely due to her poor and unsatisfactory performance.

4.  1st respondent cannot be held to be a “State” or other “authority” under Article 12 of the Constitution and hence this writ petition is not maintainable and is only liable to be dismissed.

5.    Respondent Indian Institute of Management, Kozhikode, a Society registered under the Societies Registration Act, 1860 is incorporated as the Indian Institute of Management, Kozhikode under the provisions of the Act. an autonomous body governed by the provisions of the IIM Act and that it is managed by its Board of Governors, hence neither the Central Government nor the State Government has any dominant role in the affairs of the Institute.

6.      Respondent Institute is only carrying out functions relating to education, research, training etc. and that it is not performing any public function to come under the definition of “State”. It is submitted that the respondent institution is financially independent and has an audit system like other private organizations. - PARA 14.

7.      Accounts of the Institute are subject to the audit of Comptroller and Auditor General of India, only for the purpose of verifying the expenditure of grants given by the Government.

8.      Petitioner's contentions relying on the provisions of the CCS Rules would not be tenable and that the employee of a purely autonomous body cannot claim the protection of Article 311 of the Constitution of India. The mere fact that the CCS Rules have been made applicable, by adoption, would also not make any difference to the situation, it is argued.

9.      Respondent places reliance on the judgments of the Apex Court to contend that this writ petition is not maintainable.

                                     I. Chander Mohan Khanna v. National Educational Research & Training & Ors [1991(4) SCC 578].

                                  II.   Tekraj Vasandi v. Union of India [1988(1) SCC 236].

                               III.   Pradeep Kumar Biswas v. Indian Institute of Chemical Biology & Ors [(2002) 5 SCC 111].

                               IV.   RD Shetty v. International Airport Authority of India & Ors [1979 3 SCC 489].

                                 V.    Zee Tele films Ltd.& Anr v. Union of India &Ors [2005(4) SC 649].

                               VI.  Rajbir Surjbhan Singh v. Chairman, IBPS [2019(14) SCC189].

                            VII. Ramakrishna Mission & Anr v. Kago Kunya &Ors [2019(16) SCC 303].

                         VIII. Girish G & Anr v. State of Kerala and other 2020 SCC Online Ker 1903.

                    IX.   Indian Institute of Management v. Ukakant Srivastava [2021 SCC Online Guj 61]. PARA-22.

 

• ·        Judgment of the Hon’ble Court with reasoning: PARA-45-50.

1.      Settled position of law is that in the case of any authority which does not fall under the ambit of State under Article 12, a writ would definitely be maintainable for enforcing the performance of a statutory duty or a public duty. However, the pointed question being addressed here is whether the discharge of a probationer from service would be a matter in which this Court can exercise jurisdiction under Article 226 of the Constitution of India in the absence of any statutory inhibitions cast on the institute, which is an autonomous body.- PARA 45.

2.     Contention that the IIM, Kozhikode would answer the definition of State or “Instrumentality of State” under Article 12 of the Constitution of India cannot be accepted. PARA 45.

3.     The Institute is not a creature of the Statute, since it was a society whose functions were brought under the purview of 2017 Act. It is clear from the materials placed on record by the respondents that the funds made available by the Government do not constitute a substantial amount so as to meet even a major portion of the expenditure of the institute. A reading of the provisions of the Act and the Regulations would make it clear that there is no control contemplated on the internal administration of the institute by the Central Government. There are also no statutory rules with regard to the service conditions of the employees of the institute. PARA 46.

4.    Contention of the petitioner that the orders of appointment referred to the Central Civil Service Rules and that proceedings had been initiated against her under the provisions of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 by itself cannot make any difference to the situation, since the adoption of the rules or the implementation of such rules to employees of an authority, which is not a State under Article 12, by itself will not confer on the employee the status of a public servant to contend that the reliefs as sought for in this writ petition are liable to be granted. PARA 47.

5.     Writ or direction, as sought for in this writ petition, cannot be issued against the IIM, Kozhikode in respect of an order in the nature which is challenged herein. PARA 48.

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