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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION  

CIVIL     APPEAL     NO.     6634       OF      2012   

(Arising out of SLP(C) No.7232/2011)

RAMESH AHLUWALIA                        Appellant(s)                          :VERSUS:

STATE OF PUNJAB & ORS.                 Respondent(s)

O     R     D     E     R   

Leave granted.  

We have heard the learned counsel for the  

parties at length and also perused the entire  

records.

The Appellant Ramesh Ahluwalia was working as  

an Administrative Officer in the DAV Public School,  

Lawrence Road, Amritsar. He has been serving in  

that institution since 1st April, 1983.  At the  

relevant time, the Appellant was working as an  

Administrative Officer, to which post he was

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promoted by order dated 1st August, 2005.  It  

appears that one lady official Smt. Jaswinder Kaur  

made a complaint to the Principal of the School on  

28th November, 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 Smt. Neera Sharma  

on 9th December, 2006. On 21st December, 2006, Smt.  

Jaswinder Kaur made another written complaint  

addressed to the Manager.   

The Appellant complains that without granting  

any opportunity of being heard, on 1st February,  

2007 he was downgraded and transferred to another  

school to work as an 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 Board of Secondary  

Education Affiliation Bye-Laws. After obtaining the

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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.  

We may notice here that the Principal Smt.  

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 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 8th  

January, 2008 directing the Appellant to be removed  

from service.  

Against the aforesaid order of removal, the  

Appellant submitted an appeal before the

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Disciplinary Committee under Bye-Law 49 of the CBSE  

Affiliation Bye-Laws.  Bye-Law 49 of the said Bye-

Laws provides as under:  

“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  

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.  

(b) The Manager of the school, and where  

the disciplinary 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.

(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.

(e) One teacher who is a member of SMC of  

the school nominated by the Chairman of

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the Committee.   

2) The Disciplinary Committee shall  

carefully examine the findings of the  

inquiry officer reasons for imposing  

penalty recored by the Disciplinary  

Authority and the representation by the  

employee and pass orders as it may deem  

fit.”  

A perusal of the aforesaid Bye-Law clearly  

shows that an order of the Disciplinary Authority  

can be challenged before 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 December,  

2008.   

Aggrieved by the aforesaid decision, the  

Appellant challenged the order of the Disciplinary  

Committee before the High Court by filing CWP

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No.11691/2009. The aforesaid writ petition has been  

dismissed by the learned Single Judge in 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 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:

“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 remedy to challenge the  

impugned orders before the Civil Court.  

In the instant case, while challenging

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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  

the same is accordingly, dismissed with  

liberty to the Appellant to avail his  

alternative remedy.”        

Against the order passed by the learned  

Single Judge, the Appellant filed Letters Patent  

Appeal No.368 of 2010 before 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.  

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.

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He has made a reference to the judgments of this  

Court in Andi     Mukta     Sadguru     Shree     Muktajee     Vandas    

Swami     Suvarna     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) 4 SCC  

649 and submitted that even though the respondent  

School would not fall within the definition of  

“State”  or other 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.

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  

placed reliance in the case of Pradeep     Kumar     Biswas   

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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:

“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  

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 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.”

We have considered the submissions made by

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the learned counsel for the parties. In our  

opinion, in view of the judgment rendered by this  

Court in the case of Andi Mukta Sadguru Shree  

Muktajee Vandas Swami Suvarna Jayanti 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 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 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 :    

“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

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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.

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 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  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 226. We, therefore, reject the

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contention urged for the appellants on the  maintainability of the writ petition.”

The aforesaid observations have been repeated  

and reiterated in numerous judgments of this Court  

including the judgment in Unni Krishnan and Zee  

Telefilms Ltd.(supra), brought to our notice by the  

learned counsel for the Appellant Mr.Parikh.  

In view of the law laid down in the  

aforementioned judgments of this Court, the  

judgment of the learned Single 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 functions, i.e. providing education  

to children in their institutions throughout India.  

We must, however, notice that the learned Single  

Judge has dismissed the writ petition also on the

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ground that it involves disputed questions of fact.  

Mr.Ray, learned counsel 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.  

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 Constitution Bench of this Court in T.M.A.     Rai    

Foundation     and     Ors.   vs. State     of     Karnataka     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 taken by the Disciplinary Bodies  

of even purely private educational institutions. It

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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 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.

We are of the considered opinion that since  

the writ petition clearly involves disputed  

questions of fact, it is appropriate that the  

matter should be decided by an appropriate  

Tribunal/Court.

At this stage, we are informed that the State  

of Punjab has set up a tribunal, namely, Punjab  

School Education Tribunal, Mohali, which is  

empowered to entertain appeals even where orders  

have been passed by unaided private educational  

institutions. In that view of the matter, the

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remedy of appeal is clearly available to the  

appellant. It would, therefore, be appropriate for  

the appellant to avail the remedy of appeal before  

the aforementioned Education Tribunal.

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 aforesaid Disciplinary  

Committee may not influence the proceedings before  

the Appellate Authority. In our opinion, such an  

eventuality will not arise.  

In the petition before the High Court as well  

as the appeal before this Court, the appellant has  

submitted that the entire disciplinary proceedings  

are vitiated due to the 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,

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she was clearly disqualified from 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 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 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  

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

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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  

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.  

At this stage, learned counsel appearing on  

behalf of 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.

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

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Committee. In the interest of justice, we permit  

the appellant to challenge the order of the  

Disciplinary Authority dated 8th 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 8th January,  

2008, the appeal may well be beyond limitation  

period.  

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 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.

It is made clear that the Education Tribunal  

shall decide the appeal on the assumption that no

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opinion has been expressed by this Court on the  

merits or the controversy raised by the parties.  

With the aforementioned observations and  

direction, the impugned judgments passed by the  

learned Single Judge as also the Division Bench of  

the High Court are set aside and the appeal is  

disposed of.  

 ……………………………………………………J.     

  (SURINDER SINGH NIJJAR)    

   ………………………………………………………J.

(H.L. GOKHALE)

New Delhi; September 13, 2012.