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[Can the writ of mandamus be issued against any individual or private body?]
Article 226 of the Constitution of India reads:
“226. Power of High Courts to issue certain writs – (1) Notwithstanding anything
in Article 32, every High Court shall have power, throughout the territories in
relation to which it exercises jurisdiction, to issue to any person or authority
including in appropriate cases, any government, within those territories, directions,
orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, or any of them, for the enforcement of any
of the rights conferred by Part III and for any other purpose….”
Appellant 1 was a public trust with other appellants as trustees. The trust was running a
science college at Ahmedabad. The college had affiliation under the Gujarat University Act.
The University teachers and employees were paid in the pay scale recommended by the
University Grants Commission. There was some dispute between the University Area
Teachers’ Association and the University about the implementation of certain pay scales. That
dispute was referred to the Chancellor who gave his award in the following terms:
“(1) That the revised pay scales as applicable to teachers who joined before 1-4-
1966, should similarly be applicable to those who joined after 1-4-1966 and they be
continued even after 1-4-1971.
(2) That these pay scales be exclusive of dearness allowance. Therefore, fixing
the pay of the teachers who joined after 1-4-1966, no portion of existing dearness
allowance would be merged. However, with effect from 1-4-1971 in respect of both
the categories of teachers i.e. pre-1966 and post-1966 teachers, dearness allowance
was to be merged with the salary.
(3) That arrears for the period from 1-4-1966 to 31-3-1970 accruing due under
the award were to be paid (without interest) in ten equal installments beginning from
1-4-1971.
(4) The award was to be given effect to from 1-4-1970.”
This award of the Chancellor was accepted by the State Government as well as by the
University. The latter issued direction to all affiliated colleges to pay their teachers in terms
thereof. The appellants instead of implementing the award served notice of termination upon
11 teachers on the ground that they were surplus and approached the University for
permission to remove them. But the Vice-Chancellor did not accede to their request. He
refused the permission sought for. There then the management (the trust) took a suicidal
decision to close down the college to the detriment of teachers and students. The affiliation of
the college was surrendered and the University was informed that the management did not
propose to admit any student from the academic year 1975-76. The college was closed with
effect from 15-6-1975 with the termination of services of all the academic staff.
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The academic staff under law were entitled to terminal benefits which the
management did not pay. The teachers waited with repeated representations only to get a
negative reply and ultimately, they moved the High Court with writ petitions. The trust
resisted the writ petitions on every conceivable ground. The objections raised by the trust
were: (i) The trust was not a statutory body and is not subject to the writ jurisdiction of the
High Court; (ii) the Resolution of the University directing payment to teachers in the revised
pay scales was not binding on the trust; (iii) the University had no power to burden the trust
with additional financial liability by retrospectively revising the pay scales; (iv) the claim for
gratuity by retrenched teachers was untenable. The same was payable only to teachers
retiring, resigning, or dying and not to those removed on account of closure of the college;
and (v) Ordinance 120-E prescribing closure compensation was ultra vires the powers of the
syndicate and at any rate not binding on the trust since it was enacted prior to affiliation of the
college.
The High Court rejected all these submissions, and accepted the writ petitions by
delivering a lengthy judgment. The High Court thus directed the trust to make payments.
K. GANNATHA SHETTY, J. – 9. Counsel for the appellants mercifully concedes the just
right of the teachers to get salary for the period of two and a half months from 1-4-1974 to 14-
6-1974. He has also no objection to pay provident fund dues. He, however, says that the trust
is entitled to get reimbursement from the government and that question must be determined in
these appeals. As regards the arrears of salary payable under the Chancellor’s award, the
counsel contends that it is the liability of the government and not of the management of the
college. As regards the closure compensation payable under the Ordinance, he repeats the
contention taken before the High Court. He also maintains that the trust is a private body and
is not subject to the writ jurisdiction under Article 226.
- Having heard the counsel for both parties, we are left with an impression that the
appellants are really trying to sidetrack the issue and needlessly delaying the legitimate
payments due to the respondents. The question whether the State is liable to recompense the
appellants in respect of the amount payable to the respondents was not considered by the High
Court and indeed could not have been examined since the State was not a party to the
proceedings. However, by the persuasive powers of the counsel in this Court, the State has
been impleaded as a party in these appeals. Perhaps, this Court wanted to find out the reaction
of the State on the appellants’ assertion for reimbursement. We heard counsel for the State.
He disputes the appellants’ claim. In fact, he challenges the claim on a number of grounds. He
says that the State is under no obligation to pay the appellants as against the sum due to the
respondents. We do not think that we need rule today on this controversy. It is indeed wholly
outside the scope of these appeals. We are only concerned with the liability of the
management of the college towards the employees. Under the relationship of master and
servant, the management is primarily responsible to pay salary and other benefits to the
employees. The management cannot say that unless and until the State compensates, it will
not make full payment to the staff. We cannot accept such a contention. - Two questions, however, remain for consideration: (i) The liability of the appellants
to pay compensation under Ordinance 120-E and (ii) The maintainability of the writ petition
for mandamus as against the management of the college. The first question presents no
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problem since we do not find any sustainable argument. The power of the Syndicate to enact
the Ordinance is not in doubt or dispute. What is, however, argued is that the Ordinance is not
binding on the management since it was enacted before the college was affiliated to the
University. This appears to be a desperate contention overlooking the antecedent event. The
counsel overlooks the fact that the college had temporary affiliation even earlier to the
Ordinance. That apart, the benefits under the Ordinance shall be given when the college is
closed. The college in the instant case was closed admittedly after the Ordinance was enacted.
The appellants cannot, therefore, be heard to contend that they are not liable to pay
compensation under the Ordinance. - The essence of the attack on the maintainability of the writ petition under Article 226
may now be examined. It is argued that the management of the college being a trust registered
under the Bombay Public Trust Act is not amenable to the writ jurisdiction of the High Court.
The contention in other words, is that the trust is a private institution against which no writ of
mandamus can be issued. In support of the contention, the counsel relied upon two decisions
of this Court: (a) Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain
[(1976) 2 SCR 1006] and (b) Deepak Kumar Biswas v. Directot of Public Instructions [(1987)
2 SCC 252]. In the first of the two cases, the respondent institution was a Degree College
managed by a registered cooperative society. A suit was filed against the college by the
dismissed principal for reinstatement. It was contended that the Executive Committee of the
college which was registered under the Cooperative Societies Act and affiliated to the Agra
University (and subsequently to Meerut University) was a statutory body. The importance of
this contention lies in the fact that in such a case, reinstatement could be ordered if the
dismissal is in violation of statutory obligation. But this Court refused to accept the
contention. It was observed that the management of the college was not a statutory body since
not created by or under a statute. It was emphasised that an institution which adopts certain
statutory provisions will not become a statutory body and the dismissed employee cannot
enforce a contract of personal service against a non-statutory body. - The decision in Vaish Degree College was followed in Deepak Kumar Biswas case.
There again a dismissed lecturer of a private college was seeking reinstatement in service.
The Court refused to grant the relief although it was found that the dismissal was wrongful.
This Court instead granted substantial monetary benefits to the lecturer. This appears to be the
preponderant judicial opinion because of the common law principle that a service contract
cannot be specifically enforced. - But here the facts are quite different and, therefore, we need not go thus far. There is
no plea for specific performance of contractual service. The respondents are not seeking a
declaration that they be continued in service. They are not asking for mandamus to put them
back into the college. They are claiming only the terminal benefits and arrears of salary
payable to them. The question is whether the trust can be compelled to pay by a writ of
mandamus? - If the rights are purely of a private character no mandamus can issue. If the
management of the college is purely a private body with no public duty mandamus will not
lie. These are two exceptions to mandamus. But once these are absent and when the party has
no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated
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that the appellants-trust was managing the affiliated college to which public money is paid as
government aid. Public money paid as government aid plays a major role in the control,
maintenance and working of educational institutions. The aided institutions like government
institutions discharge public function by way of imparting education to students. They are
subject to the rules and regulations of the affiliating University. Their activities are closely
supervised by the University authorities. Employment in such institutions, therefore, is not
devoid of any public character (See The Evolving Indian Administrative Law by M.P. Jain
(1983), p. 226). So are the service conditions of the academic staff. When the University takes
a decision regarding their pay scales, it will be binding on the management. The service
conditions of the academic staff are, therefore, not purely of a private character. It has superadded protection by University decisions creating a legal right-duty relationship between the
staff and the management. When there is existence of this relationship, mandamus cannot be
refused to the aggrieved party. - The law relating to mandamus has made the most spectacular advance. It may be
recalled that the remedy by prerogative writs in England started with very limited scope and
suffered from many procedural disadvantages. To overcome the difficulties, Lord Gardiner
(the Lord Chancellor) in pursuance of Section 3(l)(e) of the Law Commission Act, 1965,
requested the Law Commission “to review the existing remedies for the judicial control of
administrative acts and omissions with a view to evolving a simpler and more effective
procedure”. The Law Commission made their report in March 1976 (Law Commission Report
No. 73). It was implemented by Rules of Court (Order 53) in 1977 and given statutory force
in 1981 by Section 31 of the Supreme Court Act, 1981. It combined all the former remedies
into one proceeding called Judicial Review. Lord Denning explains the scope of this “judicial
review”
“At one stroke the courts could grant whatever relief was appropriate. Not only
certiorari and mandamus, but also declaration and injunction. Even damages. The
procedure was much more simple and expeditious. Just a summons instead of a writ.
No formal pleadings. The evidence was given by affidavit. As a rule no crossexamination, no discovery, and so forth. But there were important safeguards. In
particular, in order to qualify, the applicant had to get the leave of a judge.
The statute is phrased in flexible terms. It gives scope for development. It uses
the words “having regard to”. Those words are very indefinite. The result is that the
courts are not bound hand and foot by the previous law. They are to ‘have regard to’
it. So the previous law as to who are – and who are not – public authorities, is not
absolutely binding. Nor is the previous law as to the matters in respect of which relief
may be granted. This means that the judges can develop the public law as they think
best. That they have done and are doing.” - There, however, the prerogative writ of mandamus is confined only to public
authorities to compel performance of public duty. The ‘public authority’ for them means
everybody which is created by statute – and whose powers and duties are defined by statute.
So government departments, local authorities, police authorities, and statutory undertakings
and corporations, are all ‘public authorities’. But there is no such limitation for our High
Courts to issue the writ ‘in the nature of mandamus’. Article 226 confers wide powers on the
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High Courts to issue writs in the nature of prerogative writs. This is a striking departure from
the English law. Under Article 226, writs can be issued to “any person or authority”. It can be
issued “for the enforcement of any of the fundamental rights and for any other purpose”. - The scope of this article has been explained by Subba Rao, J., in Dwarkanath v. ITO
[(1965) 3 SCR 536]:
“This article is couched in comprehensive phraseology and it ex-facie confers a
wide power on the High Courts to reach injustice wherever it is found. The
Constitution designedly used a wide language in describing the nature of the power,
the purpose for which and the person or authority against whom it can be exercised.
It can issue writs in the nature of prerogative writs as understood in England; but the
scope of those writs also is widened by the use of the expression “nature”, for the
said expression does not equate the writs that can be issued in India with those in
England, but only draws an analogy from them. That apart, High Courts can also
issue directions, orders or writs other than the prerogative writs. It enables the High
Court to mould the reliefs to meet the peculiar and complicated requirements of this
country. Any attempt to equate the scope of the power of the High Court under
Article 226 of the Constitution with that of the English courts to issue prerogative
writs is to introduce the unnecessary procedural restrictions grown over the years in a
comparatively small country like England with a unitary form of government into a
vast country like India functioning under a federal structure. Such a construction
defeats the purpose of the article itself.” - 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-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 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. - In Praga Tools Corporation v. C.A. Imanual [(1969) 3 SCR 773], this Court said that
a mandamus can issue against a person or body to carry out the duties placed on them by the
statutes even though they are not public officials or statutory body. It was observed:
“It is, however, not necessary that the person or the authority on whom the
statutory duty is imposed need be a public official or an official body. A niandamus
can issue, for instance, to an official of a society to compel him to carry out the terms
of the statute under or by which the society is constituted or governed and also to
companies or corporations to carry out duties placed on them by the statutes
authorising their undertakings. A mandamus would also lie against a company
constituted by a statute for the purpose of fulfilling public responsibilities.”
279 - 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 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.” Judicial Review of
Administrative Action, 4th Edn., p. 540. We share this view. The judicial control over the fast
expanding maze of bodies affecting the rights of the people should not be put into watertight
compartment. It should remain flexible to 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 - We, therefore, reject the contention urged for the appellants on the maintainability of the
writ petition. - In the result, the appeals fail and are dismissed but with a direction to the appellants to
pay all the amounts due to the respondents as per the judgment of the High Court.
