CASE BRIEF
Decided On: 23.03.1988
Appellants: L.N. Mishra Institute of Economic Development and Social Change Patna and Ors.
Vs.
Respondent: State of Bihar and Ors.
Judges : M.M. Dutt and Ranganath Misra, JJ.
Statutes referred
- Bihar Private Educational Institutions (Taking Over) Act,1987 – Ordinances Nos.15 of 1986 and 30 of 1986
Facts
- Lalit Narayan Mishra Institute of Economic Development and Social Change, Patna, a Society registered under the Societies Registration Act, 1860, and its Registrar, Dr. Jagadanand Jha, have challenged the constitutional validity of two Ordinances being Bihar Ordinances Nos.15 of 1986 and 30 of 1986 replaced by the Bihar Private Educational Institutions (Taking Over) Act,1987.
- Dr. Jagadanand Jha has further challenged the validity of the order of termination of his service as the Registrar of the Institute dated April 21, 1986 in Writ Petition (Civil) No.439 of 1987.
- In March, 1977, the Magadh University declared the Institute as an autonomous Institute under Section 73 of the Bihar State Universities Act, 1975. On April 19, 1986, the State Government of Bihar promulgated Ordinance No. 15 of 1986 whereby the Institute was taken over.
- It is alleged that the Ordinance was promulgated and the Institute was taken over at the instance of the then Chief Minister of Bihar Sri Bindeshwari Dubey. The petitioner-Society has also alleged mala fides on the part of the Chief Minister of Bihar in taking over the Institute by promulgating the Ordinance.
- On the day the Ordinance was promulgated, possession of the Institute was taken, and the services of Dr. Jagadanand Jha, who was the Registrar of the Institute, were terminated by the impugned order dated April 21,1986.
- Besides contending that the Ordinance and the order of termination of the petitioner Dr. Jagadanand Jha are illegal and invalid, the petitioner society and the said Jagadanand Jha allege that all these have happened because of the personal enmity of the Chief Minister against Dr. Jagannath Mishra.
- The petitioners filed writ petitions before the Patna High Court challenging the validity of the said Ordinance No. 15 of 1986 and the order of termination of services of Dr. Jagadanand Jha. The Patna High Court, however, by its judgment dated August26, 1986 dismissed both the writ petitions
Issues
- Whether, promulgation of ordinance was valid in eye of law
- Whether the fundamental right of the petitioner-Society, as conferred by Article 19(1)(c), has been infringed or not
- Whether after the repeal of Article 31(2) by the Constitution (Forty-Fourth Amendment) Act, 1978, any compensation is compulsorily payable for acquisition of property.
Contentions
- Appellant’s arguments
- The appellants contended that there was an object of nationalisation in phases
- The appellants further contended that there was discrimination / discriminatory treatment of the Institute.
- The contention made on behalf of the petitioner-Society that because of the acquisition of the Institute, the Society lost its right of management over the Institute and the Institute being the main or the only activity of the Society, the impugned legislations interfere with the right of the Society to form and continue the association and, as such, unconstitutional and void under Article 19(1)(c) of the Constitution, is unsound and rejected.
- It is urged on behalf of the petitioner-Society that in taking over the Institute, there has been an infraction of the fundamental right of the Society to form association. It is contended that by the impugned Act the management of the Society has been totally displaced and its composition changed.
- Respondent’s arguments
- The contention made on behalf of the petitioner-Society is wholly misconceived. The Ordinances were not promulgated and the Act was not passed for the purpose of nationalisation of the Institute only. It is apparent from the provisions of the Ordinances and the Act that the private educational institutions as defined therein are to be taken over for the purpose as mentioned in the
- Preambles to the Ordinances and the Act in a phased manner.
- There is much force in the contention of Mr.Kacker that in a sense the State Government was running the entire Institute without nationalisation and when it decided to nationalise such institutions for the purposes mentioned in the Preambles of the Act and Ordinances, this Institute was chosen to be the very first with all sense of justification and propriety.
- It is urged by the learned Counsel that the impugned Act on the face of it does not disclose any basis or principle for singling out the Institute and for treating it as a class by itself. It is submitted that neither in the preamble nor in the provisions of the Act is there the slightest indication for treating the Institute as a class by itself.
- It was the contention of the Government that it had taken over the superintendence of the affairs of the Company and that the impugned legislation was merely regulative in character.
Judgment
Held, Petitioner was Registrar of Institute; State Government was to consider question of termination of services of members of non-teaching staff. However, Petitioner was working in post of Registrar of Institute for pretty long time. Hence, his service could not be terminated without giving him opportunity of being heard.
Respondents also failed to prove mismanagement of Institute by Society. Hence, order of termination was liable to be quashed. Petitions 87 of 1987 and 439 of 1987 and Civil Appeal No. 4141 of 1986 allowed and Petitions Nos. 55 of 1987 and431 of 1987 and Civil Appeal No. 4142 of 1986 dismissed.
Ratio Decidendi:
Authority shall not terminate any person from service without giving opportunity of being heard.
Conclusion :
High Court upheld constitutional validity of Ordinance promulgated by State Government of whereby Institute was taken over