RAMESH AHLUWALIAversusSTATE OF PUNJAB & ORS.

                   [2012] 12 S.C.R. 315


                   RAMESH AHLUWALIA                            A
                              v.
                STATE OF PUNJAB & ORS.
              (Civil Appeal No. 6634 of 2012)
                  SEPTEMBER 13, 2012
                                                               B
 [SURINDER SINGH NIJJAR AND H. L. GOKHALE, JJ.]

    Constitution of India, 1950:

     Art. 226 - Writ petition against Management of a private  c
unaided school by its employee - Held: Even a purely private
body, where State has no control over its internal affairs, would
be amenable to jurisdiction of High Court under Art. 226, for
issuance of a writ of mandamus, provided such private body
is performing public functions which are normally expected 0
to be performed by State.
     Art. 226 - Writ petition - Involving disputed questions of
fact - Held: Since the writ petition clearly involve.s disputed
questions of fact, it is appropriate that the matter should be
decided by an appropriate tribunal/court - The remedy of E
appeal before State School Education Tribunal is clearly
available to appellant - It would, therefore, be appropriate for
appellant to avail the remedy of appeal before Education
Tribunal - Remedy - Service Jaw.
                                                               F
    Administrative Law:
     Bias - In disciplinary proceedings against employee of
school, Principal appearing as witness of management -
Principal also sitting as a member of Disciplinary Committee
to hear appeal of employee - Held: Having supported the G
case of management, it was not appropriate for Principal to
participate in proceedings of Disciplinary Committee - Actual
and demonstrable fair play must be the hallmark of the
proceedings and decisions of administrative and quasi
                            315                                H
    316      SUPREME COURT REPORTS              [2012] 12 S.C.R.


A judicial tribunals, in particular, when decisions taken by these
  bodies are likely to cause adverse civil consequences to the
  persons agains't whom such decisions are taken - Order
  passed by Disciplinary Committee is quashed - Having
  regard to the fact situation and the time which has elapsed
B since the order of removal was passed, it would be·
  inappropriate at this stage to relegate the appellant back to
  Disciplinary Committee - In the interest of justice, appellant
  is permitted to challenge the order of Disciplinary Authority
  before State Schoof Education Tribunal - Jurisdiction -
c Education/Educational Institutions - Service law.

       Andi Mukta Sadguru Shree Muktajee Vandas Swami
  Suvarna Jayanti Mahotsav Smarak Trust and Ors. Vs. V.R.
                                            =
  Rudani and Ors., 1989 (2) SCR 697 1989 (2) SCC 691,
  Unni Krishnan J.P. and Ors. Vs. State of Andhra Pradesh and
                                =
D Ors. 1993 (1) SCR 594 1993 (1) SCC 645 and Zee
  Tele films Ltd. & An,r. Vs. Union of India & Ors 2005 (1)
  SCR 913     = 2005 (4) SCC 649; T.M.A. Pai Foundation and
  Ors. vs. State of Karnataka and Ors. 2002 (3) Suppl.
              =
  SCR 587 2002 (8) SCC 481 - relied on.
E
         Zee Tefefi/ms Ltd. & Anr. vs. Union of India & Ors., 2005
    (1) SCR 913 = 2005 (4) SCC 649; and Pradeep Kumar
    Biswas Vs. Indian Institute of Chemical Biology & Ors., 2002
    (3) scR 100 = 2002 (5) sec 111 - cited.
F                        Case Law Reference:

          2005 (1) SCR 913          cited              para 8
          1989 (2) SCR 697          relied on          para 10
G         1993 (1) SCR 594          relied on           para 10
          2005 (1) SCR 913          relied on           para 10
          2002 (3) SCR 100          cited               para 8
          2002 (3) Suppl. SCR 587 relied on             para 12
H
                    \




RAMESH AHLUWALIA v. STATE OF PUNJAB & ORS.317

    CIVIL APPELLATE JURISDICTION: Civil Appeal No. A
6634 of 2012.
    From the Judgment & Order dated 2'5.10.2010 of the High
Court of Punjab & Haryana at Chandigarh in L.P.A. No. 368 of
2010 (0 & M).
                                                               B
      Sanjay Parikh, AN. Singh, Marnia Saxena, Anitha Shenoy
for the Appellant.

   S.S. Ray, Rakhi Ray, R.S. Gulia, Vaibhav Gulia, Tara
Chandra Sharma, Neelam Sharma for the Respondents.             c
    The following Order of the Court was delivered

                          ORDER

     1. Leave granted.                                         D
     2. We have heard the learned counsel for the parties at
length and also perused the entire records.
      3. The Appellant Ramesh Ahluwalia was working as an
Administrative Officer in the DAV Public School, Lawrence E
Road, Amritsar. He has been serving in that institution since
April, 1983. At the relevant time, the Appellant was working as
an Administrative Officer, to which post he was promoted by
order dated August, 2005. It appears that one lady official Smt.
Jaswinder Kaur made a complaint to the Principal of the School F
on 28th Novem~er, 2006 about the alleged misconduct of the
Appellant on 17.11.2006. On the basis of the aforesaid
misconduct, the Appellant was issued a warning letter by the
Principal Sm!. Neera Sharma on 9th December, 2006. On 21st
December, 2006, Smt. Jaswinder Kaur made another written G
complaint addressed to the f\llanager.
   4. The Appellant complains that without granting any
opportunity of being heard, on February, 2007 he was
downgraded and transferred to another school to work as an H
    318      SUPREME COURT REPORTS               [2012] 12 S.C.R.

A Assistant. This order was also passed by Principal Smt. Neera
  Sharma. Again, on 8th February, 2007, Smt. Jaswinder Kaur
  submitted a further affidavit regarding her complaint. Therefore,
  a Memorandum/ Charge-sheet dated 17th March, 2007 was
  served upon the Appellant under Bye-law 47 of the Central
B Board of Secondary Education Affiliation Bye-Laws. After
  obtaining the explanation of the Appellant, the Manager of the
  Managing Committee of the school, being the Disciplinary
  Authority, appointed an Inquiry Officer and a regular inquiry was
  held against the Appellant.
c      5. We may notice here that the Principal Sm!. Neera
  Sharma appeared before the Inquiry Officer as Management
  Witness No.2. Ultimately, the charges were said to have been
  proved against the Appellant. Subsequently, the Inquiry Report
  was served on the Appellant and he was given an opportunity
D to make a representation against the same. The Appellant
  submitted his representation detailing his various contentions.
  Upon consideration of the entire matter, it appears that the
  Disciplinary Authority passed an order on January, 2008
  directing the Appellant to be removed from service.
E
       6. Against the aforesaid order of removal, the Appellant
  submitted an appeal before the Disciplinary Committee under
  Bye-Law 49 of the CBSE Affiliation Bye-Laws. Bye-Law 49 of
  the said Bye-Laws provides as under:
F         "49. Disciplinary Committee
          1) In case the employee wishes to appeal against the order
          of the Disciplinary Authority, the appeal shall be referred
          to a Disciplinary Committee. The
G
          Disciplinary Committee shall consist of the following:

          (a) The Chairman of the School Managing Committee or
          in his absence any member of the Committee, nominated
          by him.
H
RAMESH AHLUWALIA v. STATE OF PUNJAB & ORS. 319

     (b) The Manager of the school, and where the disciplinary A
     proceedings is against him/her any other person of the
     Committee nominated by the Chairman.

     (c) A nominee of the Board appropriate authority. H/she
     shall act as an adviser.                                B
     (d) The Head of the school, except where the disciplinary
     proceeding is against him/her, the Head of any other
     school nominated by the CBSE or Director of Education
     in case the Act so provides.
                                                                 c
     (e) One teacher who is a member of SMC of the school
     nominated by the Chairman of the Committee.

    2)The Disciplinary Committee shall carefully examine the
    findings of the inquiry officer reasons for imposing penalty D
    recored by the Disciplinary Authority and the
    representation by the employee and pass orders as it may
    deem fit."

     7. A perusal of the aforesaid Bye-Law clearly shows that
an order of the Disciplinary Authority can be challenged before E
the Disciplinary Committee by way of filing an appeal. The
constitution of the Disciplinary Committee includes, amongst
others, Head of the school. In accordance with the aforesaid
Bye-law, the Appellant duly submitted an appeal but the same
was rejected by the Disciplinary Committee on 18th/19th of F
December, 2008.

      8. Aggrieved by the aforesaid decision, the Appellant
challenged the order of the Disciplinary Committee before the
High Court by filing CWP No.11691/2009. The aforesaid writ
petition has been dismissed by the learned Single Judge in G
limine, but by passing a speaking order. Relying on the
judgment of this Court in Zee Telefilms Ltd. & Anr. vs. Union
of India & Ors., (2005) 4 SCC 649, the Appellant had submitted
that he was entitled to invoke the extraordinary jurisdiction of
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    320       SUPREME COURT REPORTS                 [2012] 12 S.C.R.


A   the High Court under Article 226 of the Constitution of India as
    the respondent school was performing public functions by
    providing education to young children. The aforesaid
    submission of the Appellant has been rejected by the learned
    Single Judge with the following observations:
B
          "After hearing counsel, for the Appellant, I do not find any
          force in the contention raised by him. The respondent
          school, being an unaided and a private school being
          managed by a Society, is not an instrumentality of the
          State, in my opinion, the Appellant has the efficacious
c         remedy to challenge the impugned orders before the Civil
          Court. In the instant case, while challenging the impugned
          orders, the Appellant has raised certain disputed
          questions of facts. Thus, in the facts and circumstances
          of the case, I am not inclined to entertain this petition and
D         the same is accordingly, dismissed with liberty to the
          Appellant to avail his alternative remedy."

         9. Against the order passed by the learned Single Judge,
    the Appellant filed Letters Patent Appeal No.368 of 2010 before
E   the Division Bench of the High Court. The Division Bench, vide
    its order dated 25th October, 2010, dismissed the LPA filed
    by the Appellant by observing that there is no infirmity in the
    order passed by the learned Single Judge. Hence, the present
    special leave petition by the Appellant.
F     10. Mr. Parikh, learned counsel appearing on behalf of the
  Appellant submitted that the judgment of the learned Single
  Judge as also of the Division Bench of the High Court are
  contrary to the law laid down by this Court in a catena of
  judgments. He has made a reference to the judgments of this
G Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami
    Suvama Jayanti Mahotsav Smarak Trust and Ors. Vs. V.R.
    Rudani and Ors., (1989) 2 SCC 691, Unni Krishnan J.P. and
    Ors. Vs. State of Andhra Pradesh and Ors. (1993) 1 SCC 645
    and Zee Telefilms Ltd. & Anr. Vs. Union of India & Ors. (2005)
H 4 sec 649 and submitted that even though the respondent
 RAMESH AHLUWALIA v. STATE OF PUNJAB & ORS.321

School would not fall within the definition of "State" or other A
authority/instrumentality of the State under Article 12 of the
Constitution of India, yet the writ petition would be maintainable
as the Managing Committee of the School is running schools
throughout India and thus performing very important public
functions.                                                         B

        11. On the other hand, Mr. S.S. Ray, learned counsel
 appearing on behalf of respondent Nos.2-4 submitted that no
writ petition would be maintainable against the respondent -
 institution. In support of his submission, learned counsel has C
placed reliance in the case of Pradeep Kumar Biswas Vs.
Indian Institute of Chemical Biology & Ors., (2002) 5 SCC 111,
particularly making reference to paragraph 40 of the aforesaid
judgment. Paragraph 40 of the aforesaid judgment is extracted
hereunder:
                                                                     D
       "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 E
       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 F
       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."
      12. We have considered the submissions made by the
learned counsel for the parties. In our opinion, in view of the G
judgment rendered by this Court in the case of Andi Mukta
Sadguru Shree Muktajee Vandas Swami Suvarna Jayanfi
Mahotsav Smarak Trust (supra), there can be no doubt that
even a purely private body, where the State has no control over
its internal affairs, would be amenable to the jurisdiction of the H
    322      SUPREME COURT REPORTS                  [2012) 12 S.C.R.


A High Court under Article 226 of the Constitution, for issuance
  of a writ of mandamus. Provided, of course, the private body
  is performing public functions which are normally expected to
  be performed by the State Authorities. In the aforesaid case,
  this Court was also considering a situation where the services
B of a Lecturer had been terminated who was working in the
  college run by the Andi Mukta Sadguru Shree Muktajee Vandas
  Swami Suvarna Jayanti Mahotsav Smarak Trust. In those
  circumstances, this Court has clearly observed as under :

c         "20. The term "authority" used in Article 226, in the context,
          must receive a liberal meaning unlike the term in Article
          12. Article 12 is relevant only for the purpose of
          enforcement of fundamental rights under Article 32. Article
          226 confers power on the High Courts to issue writs for
          enforcement of the fundamental rights as well as non-
D
          fundamental rights. The words "any person or authority"
          used in Article 226 are, therefore, not to be confined only
          to statutory authorities and instrumentalities of the State.
          They may cover any other person or body performing public
          duty. The form of the body concerned is not very much
E         relevant. What is relevant is the nature of the duty imposed
          on the body. The duty must be judged in the light of positive
          obligation owed by the person or authority to the affected
          party. No matter by what means the duty is imposed, if a
          positive obligation exists mandamus cannot be denied.
F
          22. Here again we may point out that mandamus cannot
          be denied on the ground that the duty to be enforced is
          not imposed by the statute. Commenting on the
          development of this law, Professor de Smith states: "To be
G         enforceable by mandamus a public duty does not
          necessarily have to be one imposed by statute. It may be
          sufficient for the duty to have been imposed by charter,
          common law, custom or even contract." We share this
          view. The judicial control over the fast expanding maze of
          bodies affecting the rights of the people should not be put
H
RAMESH AHLUWALIA v. STATE OF PUNJAB & ORS. 323

     into watertight compartment. It should remain flexible to A
     meet the requirements of variable circumstances.
     Mandamus is a very wide remedy which must be easily
     available "to reach injustice wherever it is found".
     Technicalities should not come in the way of granting that
     relief under Article 226. We, therefore, reject the contention B
     urged for the appellants on the maintainability of the writ
     petition."

      13. The aforesaid observations have been repeated and
reiterated in numerous judgments of this Court including the C
judgment in Unni Krishnan and Zee Te/efilms Ltd.(supra),
brought to our notice by the learned counsel for the Appellant
Mr.Parikh.

      14. In view of the law laid down in the aforementioned
judgments of this Court, the judgment of the learned Single D
Judge as also the Division Bench of the High Court cannot be
sustained on the proposition that the writ petition would not be
maintainable merely because the respondent - institution is a
purely unaided private educational institution. The appellant had
specifically taken the plea that the respondents perform public E .
functions, i.e. providing education to children in their institutions
throughout India.

      15. We must, however, notice that the learned Single
Judge has dismissed the writ petition also on the ground that
it involves disputed questions of fact. Mr.Ray, learned counsel F
appearing on behalf of the respondents has submitted that the
appellant actually has not been able to contradict any of the
proven facts. According to the learned counsel, the remedy of
the appellant is to file a civil suit, if so advised. Therefore, the
writ petition has been rightly dismissed by the High Court.          G
    16. Mr. Parikh, learned counsel for the appellant, however,
submits that civil suit would not be an alternative efficacious
remedy in the facts of this case. In support of this submission,
he brought to our notice certain observations made by a H
    324      SUPREME COURT REPORTS                  [2012] 12 S.C.R.


A   Constitution Bench of this Court in T.M.A. Pai Foundation and
    Ors. vs. State of Kamataka and Ors., (2002) 8 SCC 481.
    Learned counsel pointed out that, in the aforesaid case, this
    Court had directed that the Appellate Tribunal should be set up
    in each district of each State to hear appeals over the decisions
B   taken by the Disciplinary Bodies of even purely private
    educational institutions. It was emphasised that speedy
    resolution of the disputes between the teachers and the
    management is in the interest of all, i.e. students, management
    as well as the concerned teachers. It appears that at the time
c   when the appeal of the appellant was heard, such a tribunal had
     not been set up in the State of Punjab. The appeal filed before
    the Disciplinary Committee was also not referred to the District
    Judge by the Disciplinary Committee.
         17. We are of the considered opinion that since the writ
D   petition clearly involves disputed questions of fact, it is
    appropriate that the matter should be decided by an
    appropriate Tribunal/Court.
         18. At this stage, we are informed that the State of Punjab
E   has set up a tribunal, namely, Punjab School Education
    Tribunal, Mohali, which is empowered to entertain appeals even
    where orders have beer. passed by unaided private
    educational institutions. In that view of the matter, the remedy
    of appeal is clearly available to the appellant. It would, therefore,
F   be appropriate for the appellant to avail the remedy of appeal
    before the aforementioned Education Tribunal.
       19. Mr. Parikh, learned counsel for the appellant has
  pointed out that the appellant's appeal having already been
  decided under the Bye-Law 49, the observations made by the
G aforesaid Disciplinary Committee may not influence the
  proceedings before the Appellate Authority. In our opinion, such
  an eventuality will not arise.

      20. In the petition before the High Court as well as the
H appeal before this Court, the appellant has submitted that the
RAMESH AHLUWALIA v. STATE OF PUNJAB & ORS. 325


entire disciplinary proceedings are vitiated due to the              A
participation of the Principal, who was biased against the
appellant. In our opinion, the order passed by the Disciplinary
Committee cannot be sustained on the short ground that Smt.
Neera Sharma was a member of the aforesaid Disciplinary
Committee. In our opinion, she was clearly disqualified from         B
participating in any deliberations of the Disciplinary Committee
as she had appeared as Management Witness No.2. It is well
settled principle of law that no person can be a Judge in his
own cause. Having supported the case of the management, it
was not appropriate for Smt. Neera Sharma to participate in          c
the proceedings of the Disciplinary Committee. Given the
background of the allegations made by the appellant at all
stages of the enquiry not only against the principle, but also the
Manager of the School, it was necessary for her to
disassociate from the proceedings, to nullify any plea of            D
apprehended bias. Furthermore, when the appeal was being
decided by the Disciplinary Committee with regard to the
legality or otherwise of the order passed by the Disciplinary
Authority, the decision of the Disciplinary Committee not only
had to be fair but it also had to appear, to be fair. This is in     E
conformity with the principle that justice must not only be done,
but must also appear to be done. Actual and demonstrable fair
play must be the hallmark of the proceedings and the decisions
of the administrative and quasi judicial tribunals. In particular,
when the decisions taken by these bodies are likely to cause
adverse civil consequences to the persons against whom such          F
decisions are taken. For the aforesaid reasons, the order dated
18th/19th December, 2008 passed by the Disciplinary
Committee is hereby quashed and set aside.

     21. At this stage, learned counsel appearing on behalf of       G
the respondents submits that, in fact, the appeal filed by the
appellant ought to be remitted back to the Disciplinary
Committee which would not include Smt.Neera Sharma as a
member of the said committee.
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    326     SUPREME COURT REPORTS                 [2012] 12 S.C.R.

A      22. Having noticed the entire fact situation above and the
  time which have elapsed since the order of removal was
  passed, we are of the opinion that it would be inappropriate at
  this stage to relegate the appellant back to the Disciplinary
  Committee. In the interest of justice, we permit the appellant to
B challenge the order of the Disciplinary Authority dated January,
  2008 before Punjab School Education Tribunal, Mohali. The
  appeal shall be filed by the appellant within thirty days from
  today. Since the order of the Disciplinary Authority was passed
  on January, 2008, the appeal may well be beyond limitation
c period.
        23. Keeping in view the peculiar facts and circumstances
  of this case, we direct that the appeal filed by the appellant shall
  be decided by the aforesaid Education Tribunal on merits and
  the same shall not be rejected on the ground of limitation. If the
D appeal is filed by the appellant within the period stipulated
  above, the Education Tribunal shall take final decision thereon
  within a period of three months.

       24. It is made clear that the Education Tribunal shall decide
E the appeal on the assumption that no opinion has been
  expressed by this Court on the merits or the controversy raised
  by the parties.

       25. With the aforementioned observations and direction,
  the impugned judgments passed by the learned Single Judge
F as also the Division Bench of the High Court are set aside and
  the appeal is disposed of.
    R.P.                                       Appeal disposed of.