SRI DIPAK SEN Vs. ASIATIC SOCIETY

JUDGEMENT

(1.) The Respondent No. 1, Asiatic Society was registered under the Societies Registration Act, 1840 and thereafter, under the West Bengal Societies Registration Act, 1960. It is a non -profit making body corporate formed with philanthropic and literary research objects.

(2.) THE petitioner was appointed by the respondent No. 1 in the post of 'Publication Supervisor' on part -time basis on 1st January, 1962 initially for six months. A copy of the bio -data of the petitioner, annexed at page 27 of the petition, establishes that the petitioner is fairly qualified and is an experienced man in this line and several important publications were made by the respondent No. 1 on account of the meritorious services of the petitioner. According to the petitioner, at the time of his appointment, he was assured by the respondent No. 1 that on expiry of the probationary period of one year he would be absorbed in the full time vacancy under the respondent No. 1. The appointment letter is annexure 'A' to the petition. At that time he was entitled to a consolidated pay of Rs. 200/ - per month which was revised from time to time and, since 1974 it was increased to Rs. 300/ - per month. The petitioner was allotted Provident Fund A/C PF/15600/87 and became entitled to the benefit of Provident Fund Scheme with effect from January, 1975. Since then he has been regularly contributing Rs. 31/ - per month in his said account. He also became entitled to other marginal benefits including Widow Pension along with the other employees of the respondent No. 1. The petitioner served the respondent No. I from 7th December 1961 to 8th June 1985. According to him, he took 12 days' sanctioned leave and on expiry ot tne same when he went to join his office on 10th June 1985, he was wrongfully prevented from doing so for 4/5 consecutive days for which he lodged a complaint with the Park Street Police Station by a letter dated 14th June 1985. The respondent No. 1 alleged that the petitioner's service was terminated by the respondent No. 1 from 8th June 1985. The petitioner alleges that no such notice of termination was received by the petitioner upto the date when this writ petition was moved. The allegation of wrongful prevention from joining his office in this petition is denied by the respondent No. 1 in its affidavit -in -opposition but the fact that he had been drawing salary at the rate of Rs. 500/ - per month since 1974 and enjoying Provident Fund facilities along with other facilities, as alleged in the petition, are admitted by the respondent No. 1. It is alleged by the respondent No. 1 that Provident Fund facilities are available to all categories of employees including casual workers as per requisitions made from the office of the Provident Fund Commissioner and as such it had no bearing on the character and nature of the service of any incumbent. The respondent No. 1 craved reference to the said requisition at the time of hearing of this application but no such requisition was produced before the Court at the time of hearing. It is also the case of the respondent No. 1 that the term of service of the petitioner was renewed from time to time by contracts and Court's attention was invited to the fact that the petitioner himself in paragraph 4(h) of his affidavit -in -reply had admitted that between 1st January 1963 and 31st December 1977 his period of service was extended once for 3 years and again for 5 years. In the affidavit -in -opposition, the respondent No. 1 specifically alleged that in view of the fact that the service of the petitioner was governed by contracts entered into from time to time it is not open to the petitioner to avail himself of the writ jurisdiction or to enforce personal contract of service under Article 226 of the Constitution of India. During hearing, I directed the respondent No. 1 to produce the service records of the petitioner to find out whether the petitioner's service was governed by mutual contracts entered into between the parties from time to time as alleged by the is respondent No. 1 or not. Pursuant to my direction, the respondent No. 1 produced a copy of an undated draft contract prepared by the respondent No. 1 in July, 1974 containing blank spaces which was signed by the petitioner in the manner as follows: 'consented to' and under his signature the date given was 9th January 1975. In the last page of this draft agreement the petitioner had written as follows:The draft is approved by the Council and I have no hesitation in consenting to it.

(3.) THE Asiatic Society Act, 1984 came into force on 25th June 1984. The main object of the Act was to declare that the respondent No. 201, Asiatic Society, was an institution of national importance and to give it financial assistance for enhancement of its philanthrophic works and for advancing its literary research works for the benefit of the public. A summary of the provisions of the Act is set out below: According to Section 4 of this Act, the Central Government is to give the respondent No. 1 financial assistance by way of grant, loan or otherwise for every financial year for the purpose of enabling the respondent No. 1 to discharge its functions efficiently. Section 5(1) and (2) impose duties on the respondent No. 1 to maintain ' proper accounts, prepare statement of accounts, balance sheets in such form as may be approved by the Comptroller and Auditor -General of India and such accounts are to be audited by the Comptroller and Auditor -General of India who will have the same rights, privileges and authority as in the case of auditing Government accounts. Such audited accounts have to be forwarded annually to the Central Government and the same have to be laid before each House of the Parliament. Under Section 6, the respondent No. 1 will have to submit annual report to the Central Government. Section 7 restricted the power of the respondent No. 1 to alter, extend, modify or abridge any of its objects or to amend its memorandum or regulations or to sell or dispose of any of its properties and assets or to be dissolved without the previous approval of the Central Government. Section 8 provides that the Central Government will establish a Planning Board for the purpose of advising the respondent No. 1 with respect to its planning and implementation of the development programmer and other matters concerning the Society. The Chairman of the Board and its other members are to be appointed by the Central Government. The Board will regulate its own procedure subject to any rule made by the Central Government. Under Section 9, it is the Central Government which will constitute as many Committees as are necessary and their members are to be appointed by the Central Government and each Committee will be assigned with works mentioned in Section 9(1)(a)(b), Sub -section (2), (3) and (4) thereof. Similarly, under Section 10, the Central Government will constitute a Committee whose members will be appointed by the Central Government for reviewing the work done by the respondent No. 1 for inspecting its building and other assets, for evaluating the works done and for advising the State Government in important matters concerning the works of 40 the respondent No. 1. This Committee can give direction to the President of the Society and in case the President does not carry out its directions satisfactorily, the Central Government will directly issue such directions concerning the subject -matter for which direction was issued. Under Section 12, the Central Government will have power to issue direction to the respondent No. 1 in respect of any of its matters, including direction for amendment of its memorandum, regulations and determining the priority of works undertaken by the respondent No. 1. Under Section 12 Sub -section (2), such direction as aforesaid will have overriding effect notwithstanding any law for the time being in force or anything in the memorandum or regulation of the respondent No. 1. Section 13 empowers the Central Government to issue show -cause notice in case the respondent No. 1 fails to give effect to any of the directions of the Central Government. It further provides that if the cause is not shown in accordance with the direction of the Central Government then the Central Government will take over the management of the respondent No. 1 and thereupon all members of the Council including the President will be deemed to have vacated their respective post and a representative of the Central Government will be appointed under Sub -section (2) of Section 13 for taking over the management. Section 14 of this Act provides that this Act shall have effect notwithstanding anything inconsistent therewith in the momorandum or regulation of the respondent No. 1 or in the West Bengal Societies Registration Act. 1960 or in any other law for the time being in force. The last Section 15 provides that the Central Government by a notification published in the Official Gazette may make rules in respect of the procedure to be followed by the Board under Section (3) of the Act regarding the terms of the office of its. members, procedure in discharging its duties, filling up vacancies, etc. and the procedure to be followed by the Committee in discharging its functions and the allowance to be paid to its members and other matters concerning it under Subsection (2) of Section 10 of the Act and in respect of any other matters necessary under this Act. All such rules have to be approved or modified by the two Houses of the Parliament. The provisions of this Act have to be specifically scrutinised as the respondents' case is that the respondent No. 1 being an autonomous philanthropic institution no application under Article 226 of the Constitution of India will lie against it. But the petitioner states that the respondent No. 1 is a 'State' or 'other authorities' and or has become an 'instrumentality' or an 'agency' of the Central Government within the meaning of Article 12 of the Constitution of India and a writ petition will lie against it. The respondent's counsel is vehemently disputing the aforesaid contention of the petitioner. The submission of the counsel for the respondent No. 1 on this point is as follows: The Society is a completely autonomous body and the Act of 1984, while declaring IS the Society as an institution of national importance, has highlighted the patent fact to preserve this autonomy of the respondent No. 1 as would be clear from the definition given about the Society in terms of Section 3(d) of the Asiatic Society Act, 1984 that it is a society within the meaning of West Bengal Societies Registration Act, 1960. The Asiatic Society while adopting its memorandum has also adopted a Constitution of its own and in terms of Clause 4 of the said Constitution it has tried to secure preservation of the intrinsic autonomy of the said institution and the composition of the Council of the Society as contemplated in Clause 37 of its Constitution. Hence it is an independent autonomous body and not a 'State' or 'Authority' or 'instrumentality' or 'agency' within Article 12 of the Constitution of India.