Srutikanta Barik and Others vs Managing Committee of Saraswati Vidya Mandir and Others

Dr. B.R. Sarangi, J.—The above batch of writ petitions have been filed by the employees of Saraswati Vidya Mandir, Ib Thermal, Banaharpali seeking for the following reliefs:

"It is therefore humbly prayed before this Hon''ble Court that in view of the above mentioned facts and circumstances of the case, this Hon''ble Court may be graciously pleased to admit the case, issue notice to the opposite parties, and after hearing the parties, issue appropriate writ(s)/order(s)/direction (s)/declaration(s) under Article 226 of the Constitution of India and more particularly:

(A) Declare that the petitioner is an employee of opposite party No. 2.

(B) Direct that the existing service of the petitioner, including pay, dearness allowance and all ancillary benefits and perquisites be protected and continued to be enjoyed by the petitioner, in spite of termination of the agreement vide annexure-1 between opposite party No. 2 and 3 and in spite of any subsequent replacement of opposite party No. 3.

(C) Issue other order/direction/declaration/writ(s) as this Hon''ble Court may deem proper in the interest of justice"

The main thrust of the relief sought is that the petitioners should be declared as employees of the Orissa Power Generation Corporation Ltd. (in short hereinafter referred to as OPGC) and allowed to continue as such employees with the service benefits as due and admissible to them.

The short facts of the case in hand is that due to reorganization/reformation of the electricity sectors in the State, the Government of Orissa, Department of energy established the Orissa Power Generation Corporation Limited in the year 1995. Orissa Power Generation Corporation Limited-opposite party No. 2 being a Govt. Company was registered under the Companies Act, 1956 and was engaged in generating power at its Unit at Banharpali in the district of Jharsuguda. The industry being situated in remote area, where there was no adequate educational infrastructure for the locals residing in the said area as well as the employees working in the industry. In order to impart education, opposite party No. 2 in discharge of its corporate social responsibility, took a conscious decision to establish a Primary and High School in the vicinity. Accordingly, a Primary School was established in the year 1994. Since imparting education was beyond the object and primary functions of opposite party No. 2, the Management with the help of employees and the local residents constituted a Management Committee and the same was registered in the name of Ib Thermal Vidyapitha under the Societies Registration Act on 13.06.1994. The School in question was run under the advice and recommendation of the said Management Committee and the appointment of the teachers were also done by the said Committee. The role of opposite party No. 2 was confined only to provide funds for running the School.

In the year 1995, in order to ensure better and effective education of the children of the employees pursuing their studies in the said school, by virtue of memorandum No. OPGC-892 at item No. 12 it was resolved and authorized the G.M., ITPS to explore possibilities of affiliating the said School to either Saraswati Vidya Mandir or Sibananda Education Trust. Accordingly, by virtue of Agreement vide Annexure-1, the Management of the School was handed over to Sikshya Vikash Samiti in short hereinafter referred to as SVS affiliated to Bidyabharati Akhila Bharatiya Sikshya Sansthan, Lucknow. Pursuant to such agreement in Annexure-1, a new Managing Committee was accordingly constituted consisting of three representatives to be nominated by the Corporation, three representatives nominated by the SVS, the Headmaster of the School (Pradhan Acharya) was appointed by the Samiti, one representative of the teachers and the Member Secretary to be nominated by the Samiti. Upon constitution of such Managing Committee, the same was registered under the Societies Registration Act on 16.12.1997. The Managing Committee was constituted with six nominees of SVS-opposite party No. 3 and three nominees of opposite party No. 2 (including parents representatives). As per the terms and conditions of the agreement, the Management and the executive authority of the School was vested with SVS and the management and control of the School was also vested with SVS through the Managing Committee. But, the responsibility of the Corporation was to provide infrastructure such as building and funds for running of the school. The petitioners have never been appointed by opposite party No. 2 at any point of time, rather as per the conditions stipulated in Annexure-1 the conditions of service was regulated by Acharya Niyamabali of the SVS. As per Clause-4 of the Acharya Niyamabali in Annexure-3 appointment to all posts will be made by the Sikshya Vikash Samiti subject to requirement of Saraswati Vidya Mandir, Ib Thermal Committee pursuant to which an advertisement was issued by SVS inviting applications from eligible candidates for recruitment to the post of teaching and non-teaching staffs of the School in question.

The petitioners applied for the post advertised and participated in the process of selection and having been duly selected, appointment letters were issued to them vide Annexure-4 by the SVS through the General Secretary wherein it has been specifically mentioned that the petitioner is appointed as Acharya (Asst. Teacher, PRT) in the Saraswati Vidya Mandir, IB Thermal Power Station, Banaharpali (taken over by the Shiksha Vikash Samiti, Orissa from the O.P.G.C. Orissa) with consolidated pay of Rs. 4,000/- on contract basis. The contract period will be not more than five years. After reviewing their performance, the pay of the Acharya will be increased at the rate of Rs. 250/- per annum till Rs. 5,000/- on satisfactory progress only. Pursuant to such appointment letters issued by the SVS, Orissa, the petitioners joined their respective posts and discharged the duty assigned to them. The only obligation of the O.P.G.C.-opposite party No. 2 was confined to give financial aid as per the requirement of the School ensuring quality education to the children of the employees and to see proper utilization of funds. Though the School was established by the corporation in discharge of its social responsibility, but from its inception, the Managing Committee was registered under the Societies Registration Act and duly constituted Managing Committee was looking after the administration and management of the school in consonance with the agreement vide Annexure-1. The terms of the agreement in annexure-1 also specifies that the employees will undergo a probation and during the period of probation if anybody''s performance is not found satisfactory or he is found unsuitable, his service shall be terminated. After probation period is over, they will be regularly absorbed. The recruitment and conditions of service of the staff of the institution shall be prescribed by the Samiti in consultation with the Corporation. If either parties hereto at any time wishes to terminate this arrangement, it may do so by giving at least six months prior notice in writing to the other party and such termination shall be effective only at the closer of the academic session. On termination of this agreement the Samiti shall hand over all the movable and immovable properties of the School subject to normal wear and tear to the Corporation. All the movable properties that the Samiti might have purchased out of its own fund may be removed by the Samiti. Even following the Acharya Niyamabali, employees those who have been given appointment, they will also be terminated by the Samiti. In compliance with the terms of the agreement, the OPGC which is one of the parties issued six months'' notice of termination to the Secretary , Shiksha Vikash Samiti, Odisha vide Annexure-6 dated 26.09.2013 as required for termination of the agreement which will stand terminated on 31.03.2014 on the close of academic session for the year 2013-14. Pursuant to notice of termination dated 29.09.2013 since the agreement will stand terminated on closer of academic session 2013-14, the petitioners having thought that the terms of their service shall be concluded, filed the present writ petition.

Mr. S. Mohanty, learned counsel for the petitioners strenuously urged that the agreement in annexure-1 executed between the parties cannot and should not be repugnant to the provisions contained in Orissa Education Act and Rules framed thereunder. The selection and appointment of the employees having been done by the Managing Committee and there is a representation from opposite party No. 2 in the said Managing Committee, the petitioners are the employees of OPGC-opposite party No. 2. It is urged that piercing the veil it is to be examined who is the real employer of the employees-petitioners. If ultimately it appears that opposite party No. 2 is the employer, then the petitioners are to be declared as the employees of opposite party No. 2 and they should be extended all the consequential benefits and more particularly, their services should not be terminated pursuant to cancellation of agreement vide notice issued Annexure-6 and they should be allowed to continue in service with consequential service benefits. To substantiate his contention, he has relied upon Hussainbhai, Calicut Vs. The Alath Factory Thezhilali Union, Kozhikode and Others, , Parimal Chandra and Others Vs. Life Insurance Corporation of India and Others, , Indian Overseas Bank Vs. I.O.B. Staff Canteen Workers'' Union and Another, , Ananta Kishore Rout & Ors. V. NALCO & Ors., 2007 (Supp.I) OLR 317 , Municipal Corporation of Delhi Vs. Gurnam Kaur, , C.B.I. and Others Vs. Keshub Mahindra etc. etc., and Arun Kumar Aggarwal Vs. State of Madhya Pradesh and Others, . It is also urged that the ratio of National Aluminium Company Ltd. and Others Vs. Ananta Kishore Rout and Others, is not applicable to the present context.

Mr. Ashok Mohanty, learned Senior Counsel appearing for opposite party Nos. 2 and 4 relied upon Clauses-3, 4, 10 and 11 of the Agreement executed between the parties vide Annexure-1. He further urged that the appointment of the staffs being made by Siksha Vikash Samiti as per Annexure-4, the petitioners are the employees of the said Samiti and at no point of time the appointment order was issued by opposite party Nos. 2 and 4 so that the petitioners can be treated as employees of the OPGC. Referring to Annexures- A/2 and B/2, the registration of the Siksha Vikas Samiti before the competent authority and Annexure-D/2, the code of conduct thereafter Annexure-E/2, the advertisement issued by the Siksha Vikas Samiti, Annexure-F/2, the transfer order of the Sikhya Vikas Samiti and even Annexure-H/2, the disciplinary proceeding initiated by the Sikhya Vikas Samiti and Annexure-J/2, the removal order passed by the Sikhya Vikas Samiti that the cumulative effect of the conduct as discussed will indicate that the Siksha Vikas Samiti is the authority which has given appointment to the petitioners. Therefore, Siksha Vikas Samiti is the employer and opposite party Nos. 2 and 3 cannot be construed as employer of the petitioners. More so, had the petitioners been engaged by opposite party Nos. 2 and 4, they would not have sought for relief to the extent seeking for declaration that they are the employees of opposite party No. 2. By their own conduct it is made clear that the petitioners had never been appointed by opposite party No. 2, therefore, the relief sought for by the petitioners cannot be granted to them. In order to substantiate his case, he has relied upon S.C. Chandra and Others Vs. State of Jharkhand and Others, . Relying upon the said judgment, the apex Court in National Aluminium Company Ltd. and Others Vs. Ananta Kishore Rout and Others, where the judgment of this Court passed in OJC No. 11761/2001 disposed of on 21.12.2006 reported in 2007 (Suppl.1) OLR 317 has been set aside by the apex Court.

Mr. R.K. Rath, learned Senior Counsel appearing for opposite party Nos. 2 and 4 in another set of cases stated that in any account the petitioners want to challenge the conditions stipulated in agreement vide Annexure-1, then as per the provisions contained in Sections-26 and 31 of the Specific Relief Act, the remedy lies elsewhere not by filing the application under Article 226 of the Constitution of India.

Mr. K.C. Kar, learned counsel appearing for the Siksha Vikash Samiti lays stress on aims and objectives of the society and also admits that with the help and advice of the Samiti, Secondary Schools are running in the State of Odisha under the name and style of "Saraswati Sishu Vidya Mandir" which are imparting education in Odiya Medium and they all are affiliated to the Board of Secondary Education. The schools are having independent identities these are also individually registered under the provisions of Societies Registration Act and the Managing Committee of the School used to manage the School as per law keeping in view the provisions of Orissa Education Act and the rules framed thereunder. Siksha Vikash Samiti only used to render the necessary help for better education and it also used to undertake the teachers training programmes and for other timely development of the students prosecuting study in the institutions which are not taking any aid from the State Government or Central Government. It is further admitted that the High Schools up to Secondary Education in Odiya medium throughout the State of Odisha which have been established and running under the name and style of "Saraswati Vidya Mandir" are affiliated to Siksha Vikash Samiti which is acting as advisory body for giving the necessary aid and advice in the matter of proper education, character building, discipline, extracurricular activities and also renders advice to the Managing Committee for smooth and proper administration and management of such schools. Siksha Vikash Samiti is also used to organize special training for matriculation examination and special teacher training classes to develop the efficiency and standard of teaching among the teachers of Saraswati vidya Mandir. He has relied upon the terms and conditions of the agreement vide Annexure-1 where the Corporation shall provide land, building, playground, furniture and fixtures and all other educational aid/materials and also provide required money finance and other necessities, but Siksha Vikash Samiti shall manage the School through the Managing Committee keeping in view the rules of the Government of Odisha. The Managing Committee consists of nine members out of which three members shall be representatives of the OPGC and three members shall be the representatives to be nominated by the Siksha Vikash Samiti. The Headmaster is a member in official capacity and there will be one representative of the teachers. The Member Secretary shall be nominated by the Samiti. The Committee shall look after the matters of the school in question. It is stated that opposite party No. 3 does not pay any employees contribution in respect of the teachers and staffs of the Saraswati Vidya Mandir, IB Thermal, but the same are really paid by the School Management with the employers contribution by the Corporation.

Mr. Sarbeswar Behera, learned counsel for opposite party No. 1 admits the fact that opposite party Nos. 2 and 4 have given notice to opposite party No. 3 to terminate the agreement. Since the School was run by the Managing Committee, the petitioners will be treated as employees of opposite party No. 2 and extended the benefits as due admissible in accordance with law.

Mr. A.K. Pandey, learned Standing Counsel for the School and Mass Education Department referring to records submits that opposite party No. 1 made an application to the authority for opening of Secondary Schools. On consideration of the said application, necessary permission and recognition was granted to opposite party No. 1 to open the Secondary School IB Thermal Banaharpali in the district of Jharsuguda. The record was produced for perusal in compliance with the direction given by this Court.

On the basis of the facts pleaded above, the admitted fact is that opposite party No. 2 established the School in question with a view to provide education facilities mainly to the children of the employees from primary to secondary level and as such opposite party No. 2 provided necessary infrastructure like land, building, library, laboratory, equipments and other establishment. Admittedly, the School in question is an unaided private School. Pursuant to Annexure-1, the agreement was executed between opposite party Nos. 2 and 3 which acknowledges that the School in question has been established by the OPGC. To start and run those schools opposite party No. 2 had approached the Samiti and pursuant to such agreement the Samiti took the charge to run and manage the Schools. The Schools have been recognized by the State Government, Department of Education and also affiliated to Board of Secondary Education, Orissa as per the requirement of the Statute. The management of School is vest with a Managing Committee. Accordingly, as per the agreement which has been executed the Managing Committee was constituted consisting of nine members out of which three members are nominated by the Corporation, three members from the Samiti, the Headmaster is a member in official capacity and one member is the representative of the teachers. The member Secretary is to be nominated by the Samiti. Upon constitution of the said Managing Committee, the same was registered under the Societies Registration Act. Out of three nominees of opposite party No. 2 one includes parent''s representative. Though the admission to school is open to all the children irrespective of caste, creed, sex, preference was given to the children of the employees of OPGC. Apart from the construction of building and providing infrastructure and fittings, opposite party No. 2-OPGC admits releasing some funds to meet the immediate situation as required by the Samiti. The service conditions of the employees is regulated by the Acharya Niyamabali which provides the Scale of pay of the employees and fix its modalities and also determination of seniority, fixing of age of superannuation. As per the said Acharya Niyamabali the Managing Committee of the School which has been registered under the Society Registration Act undertake the recruitment of teaching and other staffs, issue appointment letters and take all other decisions in respect of the service of the teaching and other staffs including promotion, pay fixation, seniority, grant of leave, disciplinary action, retirement, termination etc.

The main thrust for filing of the writ petition is that the employees of the School in question should be declared as employees of OPGC on the ground that piercing veil it would appear that the real control and supervision of the school including the staffs is that of the OPGC-opposite party No. 2 which is financing all the matters. Since the opposite party No. 2 plays the decisive role in the matter of appointment of the employees as well as the Management of the School they should be declared as the employees of the OPGC. But seeking declaration itself makes it clear that the petitioners have never been appointed by opposite party No. 2 and admittedly the OPGC has already provided infrastructure, even financial benefits ipso facto cannot entitle the petitioners to be construed as the employees of the OPGC. So far as provisions of providing financial assistance is concerned it was only to the extent of meeting short fall account keeping in mind the good corporate governance.

As it appears from the records that the Siksha Vikash Samiti made an application to the State Government for grant of permission, recognition for up-gradation of the Schools from Middle School level to High School level and on that basis due permission was granted and the Siksha Vikash Samiti issued advertisement for giving appointment by recruiting staffs basing upon which the petitioners have been selected and appointed pursuant to the application submitted and as such at no point of time OPGC issued appointment letter to any of the employees.

In view of the aforesaid facts and circumstances, in order to determine the existence of the employer and employees relationship the correct approach would be to consider as to whether there is complete control and supervision of OPGC. In Dharangadhara Chemical Works Ltd. Vs. State of Saurashtra, wherein the apex Court emphasized that the relationship of master and servant is a question of fact and that depends upon the existence of power in the employer, not only to direct what work the servant is to do but also the manner in which the work is to be done. It appears from the documents on record that the School has its own independent Managing committee. This Managing Committee is registered under the Societies Registration Act which not only recruits teaching and other staffs and appoint them, but all other decisions in respect of their service conditions are also taken by the Managing Committee.

Merely because the School was set up by OPGC by providing infrastructure and at times funds or they have agreed to take care of financial deficits for the running of the Schools that itself cannot be a conclusive factor to determine employer-employee relationship. As per the terms of the agreement the day to day supervision and control vests with the Managing Committee, from the appointment till cessation/termination. The exercise which is undertaken is in the nature of piercing the veil and commenting that the real control vests with OPGC is absolutely a misconceived contention raised by the opposite parties.

In S.C. Chandra (supra) relied upon by learned counsel appearing for opposite party Nos. 2 and 4 in paragraph-8 states as follows:

"We have heard learned counsel for the parties and perused the records. The basic question before us is whether a writ of mandamus could be issued against the management of HCL. Learned Single Judge relying on the Division Bench in an identical matter pertaining to Bharat Coking Coal Limited dismissed the writ petition of the appellants. This issue was examined in an analogous writ petition and in the aforesaid case, this issue was extensively considered as to whether the management of the school is the direct responsibility of the HCL or not. After considering the matter in detail, learned Single Judge relying on the aforesaid judgment found that there is no relationship of master and servant with that of the teachers and other staff of the school with the HCL as the management of the school was done by the Managing Committee through liberal financial grant was being made by the Corporation. By that there was no direct connection of the management of the HCL with that of the management of the school. Though through various communication an impression was sought to be given that the school is being run by the HCL but in substance the HCL only used to provide financial assistance to the school but the management of the school was entirely different than the management of the HCL. Giving financial assistance does not necessarily mean that all the teachers and staff who are working in the school have become the employees of the HCL. Therefore, we are of the view that the view taken by learned Single Judge appears to be correct that there was no relationship of the management of the HCL with that of the management of the school though most of the employees of the HCL were in the managing committee of the school. But by that no inference can be drawn that the school had been established by the HCL. The children of workers of HCL were being benefited by the education imparted by this school. Therefore, the management of HCL was giving financial aid but by that it cannot be construed that the school was run by the management of HCL. Therefore, under these circumstances, we are of opinion that the view taken by the learned Single Judge appears to be correct."

No doubt there may be some element of control of OPGC because of the reason that its officials are nominated to the Managing Committees of the Schools. Such provisions are made to ensure that Schools run smoothly and properly by the Society. It also becomes necessary to ensure that the money is being spent. However, this kind of "remote control" would not make OPGC to become the employer of the petitioners. But one can come to a conclusion that since OPGC shouldering and meeting the financial benefits, it is to ensure that money is being spent for rightful purposes.

Similar question came up for consideration before this Court in OJC No. 11761/2001 which was disposed of vide Judgment dated 21.12.2006 reported in 2007 (Suppl.I) OLR 317 extending the benefit to the petitioners, but opposite party-NALCO preferred SLP which was registered as C.A. subsequently, the apex Court reversing judgment of this Court, held that the employees having been appointed by the Managing Committee they cannot be treated as the employees of NALCO. Therefore, the relief sought for by the petitioners before the High Court is not admissible.

Applying the said principle to the present context, this Court is of the considered view that the judgment in National Aluminum Company Limited (supra) is squarely applicable to the present case. Hence, the petitioners are not entitled to get any relief on the claim in their writ petitions.

The contention raised by learned counsel appearing for the petitioners is that the agreement executed in Annexure-1 is repugnant under the statutory provisions governing the field in the Orissa Education Act and the rules framed thereunder. In view of the fact that agreement executed between the parties has been acted upon and on that basis advertisement was issued, selection was made and appointment of the petitioners were also made, subsequently the petitioners cannot turn around and say that the condition stipulated in the agreement vide Annexure-1 is repugnant to the statutory provisions and rules framed thereunder. Such a contention cannot be taken to judicial review and as such, such contention is hit by the principle of estoppel inasmuch as once the benefit has been enjoyed under the agreement and in subsequent stage, if any condition goes against the person concerned it cannot be said that execution of agreement in between the parties was not in consonance with the provisions of law. Therefore, this Court is not inclined to interfere with the same. The judgment relied upon by the learned counsel for the petitioner in each and every case is distinguishable which is based on its own facts and circumstances of the case.

In that view of the matter, the writ petitions merit no consideration and accordingly, the same are dismissed. No order to cost.