Avadh Behari Rohatgi, J.
(1) The Facts : These two cases are all about the Indian Nursing Council (The Council) constituted by the Central Legislature under the Nursing Council Act, 1947 (the .Act). The Council was created 'to establish a uniform standard of training for nurses, midwives and health visitors.' The purpose of the Council is stated in the following statement of Objects and Reasons :
'PROVINCIAL Nursing Councils have been established in all Provinces and maintain roasters of qualified nurses, health visitors and midwives. Increasing difficulties have been experienced by the nursing profession and by employing authorities owing to the diversity in the standards of preliminary education of candidates entering training schools of nursing, the varying standards of training and examination for nursing certificates and the lock of inter-provincial reciprocity in the registration of nurses. To remedy these difficulties it is proposed to enact legislation for the purpose of setting up an Indian Nursing Council which will prescribe uniform minimum standards of education and training for nurses, midwives and health visitors, supervise examinations, and maintain a schedule of qualifications recognised for registration throughout India.'
(2) Realizing the importance of the profession of nursing the legislature created this Council. The Act is a piece of legislation for nursing education and administration of nursing force in the country. The Act regulates the practice of nursing by recognising qualifications and prescribing the minimum standards for the professional education. This law is aimed at the protection. of the public. The function of the Council is to formulate educational standards and to promote nursing care of high quality so that the services of professionally prepared personnel can be utilised in health programmes.
(3) These are the facts. The petitioner Smt. Pramila Ghai was appointed as an inspector in a temporary capacity in November, 1971 by the secretary of the Council. On the expiry of two years she was appointed as an inspector in a substantive capacity by the President.
(4) Everything went well till 7-6-1976 when she received a letter from the Vice-President of the Council requiring her to submit documentary proof of her date of birth. The entire dispute centres round petitioner's date of birth. At the time of her appointment in 1971 she gave her date of birth as 1-8-1934. In 1976 it came to the notice of the Council that her actual date of birth is 1-8-1928. So they required her to furnish original documentary proof in support of her date of birth. Repeated reminders were sent to her in .1976. She failed to submit any proof. At long last on 31-12-1977 the President issued a memo- randum to her proposing to hold an inquiry against her under Standing Order (SO) 55 of the Council. The imputations of misconduct and articles of charge were these:
1.That she had furnished false information in regard to her date of birth at the time of her appointment as an inspector in the Council.
2.That she failed to comply with the instructions issued to her requiring her to produce the original documentary proof of her date of birth and failed to maintain absolute integrity.
(5) In the memorandum it was disclosed to her that in the High School Examination certificate of the Education Board of Gwalior M.P. her date of birth was entered as 1-8-1928. The same was her date of birth in the Post-Graduate Course which she attended in the R.A.K. Coliege of Nursing, Andrews Ganj, New Delhi. The same was her date of birth at the Sassoon General Hospital, Poona, where she underwent training, In the record of the previous employer, namely, the Irwin Hospital, where she worked from 1960 to 1971 her date of birth, according to the memorandum, was recorded as 1-8-1928.
(6) An inquiry officer was appointed to conduct the inquiry. She was asked to submit her written statement. She was required to appear before the inquiry officer to take part in the proceedings. The petitioner objected to the inquiry mainly on two grounds. One, that the President who had issued the memorandum dated 31-12-1977 was not her disciplinary authority. The second was that S.O. 55 did not apply to her. These questions, she said, go to the very root of the inquiry and in any ease the inquiry was void ab initio and illegal.
(7) The petitioner did not attend the inquiry. The inquiry officer proceeded ex-parte against her. On 23-8-1979 he submitted his report. He found her guilty on both counts. This report was placed for consideration before the Council on 25-11-1980. The Petitioner came to know of this meeting. She requested the President to allow her to attend the meeting. She was allowed to appear at 2 Pm for 15 minutes. The petitioner appeared at the given time. She pleaded her case in person. She submitted a written representation in which she reiterated that her date of birth was 1-8-1934 and according to her, this is what was recorded in Irwin Hospital, her previous employer. She said that on her entry into the service of the Council the same date of birth of 1934 had been accepted. After having her say the petitioner left the Council.
(8) The Council deliberated. They were of the view that she was not a fit person to be retained in the service of the Council. Agreeing with this view the President of the Council held her guilty of misconduct and imposed the penalty of dismissal on her on 25-11-1980. The President of the Council sent the dismissal order to the petitioner together with a copy of the report of the inquiry officer. The order was signal by the then President of the Council Dr. B. Sankaran.
(9) On 10-4-1981 the petitioner brought a writ petition (CWP 788 of 1981) challenging the order of dismissal dated 25-11-1980. The other writ petition (CWP 2100 of 1982) was brought on 13-7-1982 claiming that the decision of the Council to withhold Council's contributory fund was illegal and that she was entitled to the amount which the Council had contributed under the Provident Fund Rules during the period of her service. This order will govern them both.
(10) Structure and General Functions of the Council: The Act constitutes the Indian Nursing Council. Its constitution and composition are laid down in the Act. It is a large body of 64 members. It includes representatives of the medical Profession, heads of nursing institutions, a nurse from each State council, heads of institutions of health visitors and members from Medical Council, Central Council of the Indian Medical .Association, Council of the Trained Nurses Association of India, Director General of Health Services. State Directors of Public Health, Chief Principal Matron, Chief Nursing Superintendent, Director of Maternity and Child Welfare, Chief Administrative Medical Officer of the States and four members nominated by the Central Government and two members elected by the Parliament. The President of the Council is elected from the members of the Council from among themselves.
(11) Section 4 is important for our purposes. It says that the Council shall be a body corporate:
'4.Incorporation of the Council The Council constituted under section 3 shall be a body corporate by the name of the India Nursing Council, having perpetual succession and a common seal, with power to acquire property both movable and immovable and shall by the said name 'sue and be sued'
(12) Section 8 speaks of the officers and servants of the Council and says that the Council shall elect a Vice-President, constitute an executive committee and other committees, a secretary, officers and servants of the council. Section 9 deals with the Executive Committee. It says :
'9.The Executive Committee
(1)The Executive Committee shall consist of nine members, of whom seven shall be elected by the Council from among its members.
(2)The President and Vice-President of the. Council shall be members ex-officio of the Executive Committee, and shall be President and Vice-President respectively of that Committee.
(3)In addition to the powers and duties conferred and imposed noon it by this Act. the Executive Committee shall exercise and discharge such powers and duties as the Council may confer or impose upon it by any regulations which may be made in this behalf. '
(13) Section 10 deals with the recognition of the qualifications which is one of the main objects for which the Council was established. Section 11 deals with the effect of recognition. Section 12 empowers the Council to require such information as to courses of study, training and examinations from the States as. the Council may require from time to time.
(14) Section 13 is significant for our purpose. It deals with the appointment of inspectors, It says :
'13.Inspections
(1)The Executive Committee may appoint such number of inspectors as it deems necessary to inspect any institution recognised as a training institution, and to attend examinations held for the purpose of granting any recognised qualification or recognised higher qualification.
(2)Inspectors appointed under this section shall report to the Executive Committee on the suitability of the institution for the purposes of training and on the adequacy of the training therein, or as the case may be, on the sufficiency of the examinations.
(3)The Executive Committee shall forward a copy of such report to the authority or institution concerned, and shall also forward copies, with the remarks, if any, of the authority or institution concerned thereon, to the Central Government and to the State Government and State Council of the State in which the authority or institution is situated. '
(15) Section 14 deals with the withdrawal of recognitions if the institutions do not satisfy the requirements of the Council or the standards of proficiency required from the candidates at such examinations are not in conformity with the regulations made under this Act or fall short Of the standards. Section 15 says that the declarations under sections 10 or 14 shall be made by resolutions passed at the meeting of the Council and shall be published in the official Gazette. Section 16 deals with the power to make regulations on a variety of subjects enumerated in the section.
(16) The main question in the first writ petition is whether the order of dismissal of the petitioner was validity made. Before I deal with this question I must deal with a preliminary objection raised by Mr, Chandrasekharan appearing for the Council. Preliminary Objection : Maintainability of the writ petition
(17) Mr. Chandrasekharan says that no writ petition under Article 226 of the Constitution is maintainable against the Council because firstly it is not an 'authority' and secondly it has not breached any of the statutory provisions of which the petitioner can justly complain. He submits that prescribing qualifications for nurses is not a governmental action, nor a sovereign function of the State. He did not dispute that it,is performing functions of a public nature but that atone, in his submission, will not make it ah authority within the meaning of Article 12 of the Constitution. He further submitted that the Council is an autonomous body and the Government has no control over it. 26-4-1983.
(18) I can see no reason either in principle or in authority why the Council established as a statutory corporation is not amenable to the supervisory jurisdiction of this court. The Council is performing a public duty. It determines matters affecting the subjects. It is constituted by statute. Its actions are controllable by prerogative writ. In my judgment the Council comes fairly and squarely within the jurisdiction of this court. [See Rex v. Electricity Commissioners (1924) 1 K.B. 171] per Atkin Lj and Ragina v. Criminal Injuries Compensation Board (1967) 2 Q. B. 864 per Lord Parker CJ). Article 226 is wide in its terms. The interpretation as to what constitutes a 'State' under Art. 12 may not be strictly relevant for purposes of Art. 226 unless a question of fundamental right is involved and a person seeks its enforcement. For my purpose it will be enough if the Council is a public authority. If it is a public authority, it will come within Art. 226 and will be amenable to writ jurisdiction [See General Manager United India Fire and Genera! Insurance Co. v. A.A. Nathan 1981 Lab. I.C. 1076].
(19) In my opinion Council is a public authority within the meaning of Art 226 as well as an 'authority' within the meaning of Art. 12 of the Constitution. The Act has established a body corporate by the name of Indian Nursing Council under section 4 of the Act. It is a statutory corporation invested with public functions. The authorities are agreed that if there is a constitutional or a statutory authority or a statutory corporation, as in this case, then such constitutional and statutory authorities fall within the expression 'other authorities'. In Sukhdev Singh v. Bhagatram, : (1975)ILLJ399SC it was said :
'THE expression 'other authorities' in Art. 12 will include all constitutional and statutory authorities on whom powers are conferred by law.'
(20) In Som Prakash v. Union of India. the Supreme Court said :
'THE word 'authority is clearly wide enough to include all bodies created by the statute to carry out governmental or quasi-governmental functions.'
(Per Krishna Iyer J. at p. 229).
(21) The test is whether it is an instrumentality or an agency of the government and not how it is created.
(22) The exact limits of Art. 12 have never been and ought not to be specifically defined. They have varied from time to time being extended to meet changing conditions. Law has to adjust itself to meet changing circumstances. Cases show that in addition to statutory bodies, governmental companies and registered societies are also comprehended within the expression 'authority'.
(23) The Council is performing public duties. It is a department of the Ministry of Health. Health and Education are the primary duties of the State. In the Directive Principles they are given the highest priority. If it is a public authority and is performing a public duty it is subject to- the writ jurisdiction. It is an 'authority'. When a public authority is sitting as a disciplinary body their decision is the subject of judicial review by the courts. I reject entirely any suggestion that their actions are not controllable by the courts.
(24) Neither principle nor policy would serve to deprive the courts of jurisdiction to supervise the conduct of a proceeding of a judicial of quasi-judicial character the outcome of which might affect the rights or liberties or status of a subject. Apart from statute or specific contract there can be no external fetters on the exercise by the court of its jurisdiction to control the proceedings of bodies or individuals who have the power to deal with the rights or liberties or status of a subject. This is the philosophical approach which emerges from the decisions of the supreme court.
(25) The Council is dominated by members from the States and the Centre. The Central Government's 4 nominees sit on it. Director General of Health Services, State Directors of Public Health, heads of various other governmental institutions are ex-officio members of it. Elected representatives of medical and nursing profession are its members. Two members arc elected by Parliament to it. It is a large body fairly representative of medical, nursing, central and state interests. They are in complete charge of the standards of nursing. They are responsible for reorganisation of nursing education and improvements in delivery of nursing services. They lay down legal standards of education and nursing administration. The Council acts as a leader of nursing thought.
(26) Acceptance of health as a human right leads to the acknowledgment of the need to provide nursing services to all persons in society. Promotion of nursing care of high quality is their aim and objective in laying down the standards of nur ing profession. They formulate educational standards. They lay down 'standards of proficiency' for examinations conducted by training institutions. In a word their concern is the education system for nurses. The responsibility for health and welfare of people everywhere has created a demand for distribution of services to an awakened public. The rapid development of health services, establishment of hospitals in response to advances in sciences have created a need for new kinds of nursing. New health problems bring new responsibilities to nurses in hospitals.
(27) Nursing Education : The Nightingale Era Modern education of nurses began with the Nightingale era. Florence Nightingale is universally regarded as the founder of trained nursing as a profession for women. With her modern nursing began. She revolutionised the nursing administration. When the Crime War broke out i.n March 1854 she went with a band of devoted nurses to nurse the sick and the wounded. The hospitals were over crowded. Proper nursing v/as no easy job. But to her nursing was a calling. Her vocation was clear : She was to nurse the sicks. She. was regarded with something approaching worship. Lytton Stretchy in his Eminent Victorians tells us that the wounded soldiers used to kiss her shadow as she passed from one sick bed to another with lamp in her hand. She was called 'The lady with the lamp'. She is rightly regarded as the originator and founder of modern nursing.
(28) Wars expedited the evolution of nursing. Crimea war, American Civil War, the two World Wars have been responsible for public health and nursing. This is the historical perspective of 1947. The war had ended in 1946. People were interested in formulating aspirations for the future. The need for improving the standards of nursing education led to the passing of the Act in 1947. The Council was created. It has a corporate personality. Corporate personality is a device to achieve a collective purpose the purpose of formulating educational standards. The Act is in direct line with Nightingale's efforts to improve the nursing profession. The Act combines hopes for the future with interest in the past of Nightingale era. On the Council there are representatives of academic and intellectual life, medical and nursing profession, humanitarian bodies such as the Red Cross, the Government and the Parliament.
(29) But the Executive Committee is different. It is predominently an elective body. Seven members are elected from the Council. President and Vice-President are ex-officio members. Unlike the Council the Committee is an executive body. The Council is a representative body. There may be likenesses between the two. But unlike nesses are more marked.
(30) Nursing has now become an independent career for capable, trained women. Nursing services are administered by qualified nurses. It is a profession or 'calling' as Nightingale loved to call it. There are modern schools of nursing. Nurses are prepared for hospital nursing and care of the sick at home. Service to mankind is the primary function of nurses and the reason for the existence of the nursing profession. Need for nursing service is universal. The need for maintenance of professional standards in education is the reason de'etre of the Council,
(31) The Act of 1947 is the culmination and fitting climax to the Nightingale era of community nursing which started in 1854, The idea of nursing as a serious profession marked a new era in public health and medical practice. Florence Nightingale exercised a lasting influence on the profession of nursing. The Act of 1947 is a fitting tribute to her single service to humanity.
(32) The Council discharges public functions. It prescribes educational standards of nursing administration. This is a public duty. The statutory creation of corporate authorities is an unending process. They are the gifts of the State. New times call for new corporations. This is why the categories of authorities will never be closed.
(33) The Council has no capital. With the previous sanction of the Central Government it fixes pay and allowances to be paid to the President, Vice-President, and members and others officers and servants of Council [Section 8(2)(f)]. I am informed that funds are provided by the Central Government. The Council enjoys a measure of autonomy, it is true. But It functions under the aegis of the Central Government. It enjoys its patronage, backing and sponsorship. It is an apex professional body concerned with professional standards of nursing. It can frame regulations under section 16. The regulations refer to the Standing Order of the Council. (Regulations 37 and 60). It has framed a body of Standing Orders under this power. The Regulations and the Standing Orders of the Council are like children and grand children of the Act. Both have statutory force. Their non-observance will render the acts of the Council a nullity if they are mandatory in character. They are not inferior legislation, not inferior to the Act in any sense.
(34) The provisions of the Act and the Regulations show that the control of the Government is pervasive. A casual vacancy in the Council is reported by the President to the Central Government (Regulation 36). An approaching vacancy in any existing appointment must be reported by the President of the Council to the President of India in order that a new appointment may be made (Regulation 58). Copy of every report by an inspector, with the observations of the institution concerned, and the opinion of the Executive Committee after approval, has to be forwarded to the President of India. [Regulation 62(10)]. Financial estimates are required to be sent to the Secretary, Ministry of Health, Government of India (Regulation 68). Copy of the Annual Audit Report has to be submitted to the Government of India in the Ministry of Health (Regulation 77). All these provisions show that the voice is of the Central Government and the hands are also of the Central Government.
(35) The Test of Authority The test is to see whether 'a part of governing power of the state is located in the corporation' (Ramana vs. I. A. Authority of India, : (1979)IILLJ217SC ) . This test is satisfied here. The Council is an arm of the state. Judges have used colorful phrases to explain the meaning of the term 'authority' used in Article 12. Krishna Iyer .J. has called it 'a projection of the State', ''a proxy of the State', 'an agent or surrogate of the State', 'an incarnation of the State', 'a . sharer of state power', 'these strange being which are government in fact but corporate in form' (Som Prakash Rekhi vs. Union of India, .
(36) Authority is a manifestation of power. It is a power phenomenon. It is sanctioned power. It is institutionalized power. So the authorities are, so to speak, so many centres of power within the State. The State is the greatest of them all The State is imperium in imperio.
'THE true test is functional. The test is not how the legal person is born but why it is created. Nay more. Apart from discharging functions or doing business as proxy of the state, wearing the corporate mask there must be an element of ability to affect legal relations by virtue of power vested in it by law'
(37) In U. P. Warehousing Corporation vs. Vijai Narain : (1980)ILLJ222SC the employee of the statutory corporation challenged his wrongful dismissal. One of the questions was the maintainability of the writ petition at the instance of the employee against a statutory corporation. The Court held that writ should issue if illegality is established. Following the observations of Lord Wilberforce in Malloch vs. Aberdeen Corp. (1971) 1 Wlr 1578 Sarkaria J. held that in cases where there is an element of public employment or service, or support by statute or something in the nature of a public office or status the court would correct illegal acts. In cases of public employment if it is held that writ is not maintainable it would amount to a denial of the protection of Art. 14 and 16 of the Constitution. As Krishna Iyer J. said: 'Art. 12 is a special definition with a broader goal. Far from restricting the concept of State it enlarges the scope to embrace all authorities under the control of Government', (page 221). Art. 12 'ropes in whatever any autonomous body which has some nexus with the Government' (page 222). Two conclusions follow :
1.'IFfundamental rights in Part Iii of the Constitution are denied to those engaged in activities of these corporations which act as agencies of the administration there may be a breakdown of the rule of law and the constitutional order in a large sector of governmental activities carried on under the guise of jural persons. It may pave the way for a new tyranny by arbitrary administrators operated from behind by Government but unaccountable to Part Iii of the Constitution. We cannot asset to on interpretation which leads to such a disastrous conclusion unless the language of Art. 12 offers no other alternative.'
(Som Prakash p. 230 per Krishna Iyer J).
(38) In Ajay Hasia v. Khalid Mujib Sehravardi, : (1981)ILLJ103SC the Supreme Court said 'Wherever thereforee there is arbitrariness in State action whether it be of the legislature or executive or of an 'authority' under Art. 12, Art. 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and nonarbitrariness pervades the entire constitutional scheme and is a golden thread which runs through whole of the fabric of the Constitution.'
2.The employees of these statutory bodies have a statutory status and they are entitled to declaration of being in employment where their dismissal or removal is in contravention of statutory provisions. (Som Prakash page 226). These employees are not servants of Union or the States, it is true. But they enjoy the protection of the statute. They are clothed
with the rights and duties by the statute. These statutory bodies are authorities within the meaning of Art. 12.
(39) The test of public functions has been accepted by Mathew J. in Sukhdev : (1975)ILLJ399SC , by Bhagwati J. in I. A. Authority of India : (1979)IILLJ217SC and Krishna Iyer J. in Som Prakash Rekhi Air 1981 Sc 224. The presence of absence of State financial aid is irrelevant. Emphasis is on functionality plus State control rather than on the statutory character of the corporation. (See Sukhdev : (1975)ILLJ399SC ).
(40) I have come to the conclusion that in the case of the Council which is a Statutory corporation the State control is deep and percasive. There is an element of authority and command because it can frame Regulations. It can affect rights and interests. The result is that there are legally enforceable rights in the petitioner against the Council. The Council is performing a public function. Its action is not a private action. It is a State action. If the functions of the corporation are of public importance and closely related to governmental functions it would be a relevant factor in classifying the corporation as an instrumentality of agency of the government.
(41) In view of the functions discharged by the Council it must be held that its action amounts to State action and the Council is an agency or instrumentality of the State and subject to the controlling jurisdiction of the Courts. A voluntary organisation like Hindi Kusht Nivaran Sangh was held to be not an authority within Art. 12 (J. S. girl Rao vs. Hindi Kusht Niwaran Sangh 1982) 2 Delhi 217 . Bal Bhavan Board was held to be an authority (Mohd. Abbas Khan vs. Bal Bhavan Board, New Delhi 1981 L. f. Cases 1476. While the Council is cast in a corporate mould, the reality is that it is discharging the State functions of prescribing qualifications for those who join the calling of nursing. The chemistry of this corporate body answers the test of State.
(42) Power to dismiss The petitioner persisted in her date of birth and in ner objection to the enquiry and this led to her dismissal. But she was not given an opportunity to submit her defense in the enquiry. I say so because under S.0.55 the purported enquiry itself was illegal. That S.O. does not. apply to her. She was not obliged the appear. She was not obliged to explain or defend. She pointed out to the President and the enquiry officer that the proposed enquiry was illegal.
(43) A responsible public body like the Council acted in excess of its powers. It usurped the functions of the Executive Committee. Its action was ultra vires. It is perfectly sensible for Parliament to provide that the Executive Committee shall appoint inspectors. Logically and as a matter of law. the Executive Committee shall dismiss them. The decision rests with Executive Committee. It is in their domain and province. This power is allocated to them. The Council cannot arrogate to itself this power. For good reasons the Parliament has given this power to a smaller executive body of 9 members. It was not left to an unwieldy body of 64 persons as the. Council.
(44) The Council has a central role to play. it is true. But it is the role of a legislative rather than an executive body that is assigned to it. It recognises 'qualifications' and 'higher qualifications' for the profession of nursing. It can withdraw the recognition. Its functions are defined in Sections 10 and 14 of the Act. It has power to make subordinate legislation i.e. to frame regulations. But the preparatory work is done by the Executive Committee through the inspectors. Executive Committee appoints inspectors. They inspect training institutions. They attend examinations conducted for the purpose of granting recognised qualification or higher 'qualification. They submit report to the Executive Committee on the 'suitability of the institution' and then on 'the adequacy of training' and I tie 'sufficiency of the exan-nnations'. (S. 13(2)]. The Executive Committee takes into consideration these reports submitted by the inspectors appointed by it for this purpose and then prepares a report for submission to the Council.
(45) The Act makes a sharp division of powers, allocating to the Council and the Executive Committee their duties, powers and functions separately. One cannot encroach on the powers of the other. A Council member can be invited by the Executive Committee to attend its meeting. The invited member can participate in the discussion of the Executive Committee. But he 'shall not function as a member of the committee, whether by way of voting or otherwise' (Regulation 47). This shows that in the appointed sphere of the Executive Committee the Council cannot invade and trespass.
(46) A large body is not 'expected to appoint or dismiss inspectors. The Act confides this power in a compact executive body of 9 persons. The Council can not invite the inspector to address it as they did here. The, petitioner failed to impress the meeting og the Council of 64 persons. It is possible that she might have swayed a smaller body of 9 persons by arguments and they might have been disposed to award a less severe punishment. They might not have taken such a drastic step for all we know. A large body might be embarrassed in the performance of its duties if it has to conduct a public investigation before dismissing an inspector or give public reasons for its decision. That it is a large body in the nature of a mini legislature will appear from the regulations. It can invite Press representatives to the Council meetings (Regulation 28). Its minutes can be sold to the public (Regulation 33).
(47) The Executive Committee discharges the functions assigned to it by the Act and the Regulations. Section 9(3) says that
'S.9(3)In addition to the powers and duties conferred and imposed upon it by the Act the Executive 762 Committee shall exercise and discharge such powers and duties as the Council may confer or impose upon it by any regulations which may be made in this behalf.'
(48) This clearly shows that the Executive Committee discharges functions assigned to it by the Act and the Council. But the Council cannot take the functions of Executive Committee upon itself. That will amount to a take-over, or merger of the Executive Committee. The idea of take-over is unknown to the Act. The Council and Executive Committee owe independent existence to the Act. Both are statutory bodies. Both have a statutory origin. The Executive Committee is. not a creature of the Council. Both are creatures of the Act. They are independent and have distinct fields assigned to them by the Act. The Act is the charter, the constitution, so to speak of these bodies. The Council can confer such power and impose such duties on the Executive Committee as it may by Regulations prescribe. But it cannot take away the powers conferred on it by the Act and the Regulaions. This is the fundamental mistake the Council made.
(49) The Council is a public authority charged with the general duty of keeping the standards of education and training. It is concerned with basic and post-basic education. It decisions on recognition of qualifications has a far-reading effect. Section 11(b) enacts
'NO person shall, after the date of the commencement of the Act, be entitled to be enrolled in any State register as. a nurse, midwife,, health visitor, or public health nurse unless he or she holds a recognised qualification.'
(50) So its duty is to prescribe qualifications for those whose names are to be borne on the Stare register and who should be entitled to practice the profession of nursing. The Council is also given power to recognise foreign qualifications on a scheme of reciprocity [S.10(3)]. The result of these provisions is to make nursing a monopolistic profession. Professions like medicine, law, nursing are monopolistic in character. No one who is not property qualified can practice. It acts like a craftsmen guild of the Middle ages. The Council is like a modem association, society or brotherhood resembling the mediaval guilds in their aims and purpose. It aims at a higher level of training and proficiency,
(51) The inspectors are appointed under Section 13(1). Their functions are detailed in regulation 62 in Part Ix, entitled 'Inspection of Examinations'. They have a statutory status. They inspect and report whether the prescribed standard of professional examinations and professional education are being maintained by a training institution. (Regulation 62(f). They see whether there is proper training in nursing institutions and whether the 'standard curricula for the training of nurses' and 'teachers of nurses' are followed in training institutions. [Section 16(g)]. Whether a particular institution conforms to the standards laid down by the Council is their main business. This is their statutory task. They submit their report to Executive Committee. Executive Committee submits it to the Council. This is the preliminary work that the Executive Committee does before the Council enters upon its duties of recognition of qualifications and withdrawal of recognition. So these inspectors work under the charge and control of the Executive Committee. The Executive Committee appoints them. The Executive Committee can remove them. But not the Council.
(52) In Kutoor Vengavil Royarappan Nayana vs. Kutoor Vengavil Valia Madhavi Amma Air 1950 Fc 140 the Federal Court pointed out that Section 16 of the General Clauses Act has codified the well-understood rule of general law that the power to terminate flows naturally and as a necessary sequence from the power to create. It is a necessary adjunct of the power to appoint and is exercised as an incident to or consequence of that power. The authority to call such officer into being necessarily implies the authority to terminate his functions when their exercise is no longer necessary, or to remove the incumbent for an abuse of those functions or for other cause shown. This is a rule of construction. All that it means is that when a statute confers the power to make an appointment, then unless a different intention appears, it must be read as having also conferred the power of dismissal on the authority; having, for the time being, the power to appoint. [See Dr. Bool Chand vs. Chancellor Kurukshetra University : (1968)IILLJ135SC ]. Public employment
(53) This is a case of statutory employment of an inspector appointed under Section 13(1) of the Act. Section 13 is a critical section. It has to be read in conjunction with Section 16 of the General Clauses Act, 1897. The power to appoint will include the power to dismiss. The power to appoint comprehends the power to remove. If this power is in the domain of the Executive Committee the power to dismiss cannot be arrogated by the Council. That will be usurpation of the power residing in the Executive Committee. It is definitely a different statutory body, though its members are elected from the Council. This is the conclusion I have reached on an extensive examination of the provisions of the Act, Regulations and Standing Orders.
(54) In Nazir Ahmed v. Emperor 63 IA. 372 the Privy Council laid down a well recognised rule namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are forbidden [Taylor v. Taylor (1875) 1 Ch. D. 421)]. This doctrine applies here. If the Council is allowed to exercise the power of dismissal the provisions of section 13(1) would almost inevitably be widely disregarded in, the same manner as they were disregarded in the present case.
(55) The appointment of the petitioner is statutory. The Council is a public authority. The petitioner holds a public position fortified by statute. Here challenge to the action taken by the Council raises a question of administrative law. (Malloch p. 1594 per Lord Wilberforce). It is not a question of private employment to be answered solely by private law on the terms of a mere contract of employment. The Intervention of the statute has made all the difference here. It is not a pure master and servant case.
(56) Common Law Position The position at common law was different. The master could dismiss the servant without holding an inquiry and without assigning any reason. If the dismissal was wrongful the servants remedy was in damages. The statute intervened to protect the servant against the arbitrary exercise of power by the master. He was the weaker party. By statute the employee is given rights regarding his employment which require the employer to hold a quasi-judicial enquiry or to hear the servant before dismissing him. If the employer is in breach of duty in denying the employee a hearing, what is his remedy The remedy is to seek a declaration that the dismissal is a nullity. This is not ordering reinstatement or specific performance of the contract of service. This is not the true effect of declaration. There would be no reinstatement. This would be merely saying that the employee's contract of employment had never been terminated and that the employee continues to be in service of the employer. (Malloch at p. 1584 per Lord Reid).
(57) The statutory provisions confer on the employee a status. His status is supported by statute. There is an element of public employment or service, a support by statute, an office or a status which is capable of protection. The employee can have his dismissal declared void. This is the significant advance of modern administrative law. So the common law is modified by the statute. The dismissal function is viewed as quasijudicial, so the court must see that the employer remains within his powers, does not abuse his powers, and observes the principles of natural justice. If the dismissal order is in defiance of the statutory provision the public law remedy of declaration is available to the servant to have the dismissal declared void. This is the nature of public employment. This is what public law does in the field of public employment. It acts on one single principle : Whatever is arbitrary is offensive to legality.
(58) The particular principle of administrative law to which the petitioner appeals is that, before her dismissal became effective, she ought to have been given an opportunity of making representations to and of being heard by the Executive Committee. She claims a public law remedy a declaration that her dismissal is void. If a public authority by its illegal action vitally affects a woman's career or her pension she is entitled to a declaration. The dismissal will be declared void if it is made as a result of denial of opportunity to state her case. This question has always to be answered by examining the framework and context of the employment to see whether elementary rights are conferred upon her expressly or by necessary imputation, and how far the right to be heard is denied to her.
(59) The inspectors are given special statutory status or protection. Lord Reid says :
'THE right of a man to be heard in his own defense is the most elementary protection of all and, where a statutory form of protection would be less effective if it did not carry with it a right to be heard, I would not find it difficult to imply this right.'
(Malloch p. 1582).
(60) The scheme of the Act shows that the inspectors are a part and parcel of the Executive Committee. In 1953 Denning Lj observed that 'the test of being a servant does not rest now-a-days on submission to order. It depends on whether the person is part and parcel of the organisation.' [Bank Voor Handel v. Statford (1953) 1 Q.B. 248). Breach of Natural Justice : Standards of Fairness
(61) The resolution of dismissal dated 25-1-1-80 was passed in circumstances contrary to natural justice. The Executive Committee never heard the inspector. The Council heard. But the dismissing authority is the Executive Committee. thereforee, there was a denial of hearing.
(62) This issue raises the question : Who can employ the inspector Mr. Chandrasekharan says the Executive Committee. appoints inspector for the Council. Council is the larger body. Executive Committee is a smaller body. The larger includes the smaller. So appointment is for the Council. The Council can thereforee dismiss. By this involved reasoning he tried to justify the order of dismissal. I cannot accept this circular reasoning. The inspectors are not Council servants. This is clear from. the regulations and standing orders. They are a part and parcel of the Executive Committee with statutory functions to discharge. They enjoy statutory status and protection. It is not a pure master and servant relationship. So when the petitioner was allowed to appear before the Council and to address it, she was appearing and pleading before a body to which she was not answerable. She is dismissible by the Executive Committee. There was thereforee a non-compliance of the statutory obligation to give the petitioner an opportunity to submit her defense to the Executive Committee.
(63) Every Council servant and member of the staff has a right to be heard. This is the position on a combined reading of the Regulations and Standing Orders. To the inspectors the government rules apply. They also have a right to be heard. They cannot be denied a proper hearing by a duly constituted authority haying lawful authority on them. thereforee, dismissal of an inspector can take place subject to compliance with statutory requirements and subject to giving an opportunity to the inspector to submit her defense. The inspector concerned has a lesal right to be present and to be heard. When the inquiry report was not supplied to her she could do nothing except wait for the announcement of her fate. On 26-11-1980 she was informed that she had been dismissed. S.O. 56 gave her no right of appeal. Because S. O. 55 did not apply. So there was no appeal against the decree of fate.
(64) This is a case where principles of natural justice were violated. Enquiry under S.O. 55 was illegal. S.O. 55 does not apply to inspectors.This is clear from S.O. 51, 52 and 56. They apply to Council servants. For inspectors no punishing authority competent, to inflict penalties is provided in S. O. 52. Nor an appeal under S. O. 56. To inspectors government rules will apply S.O. (4). So ordering an enquiry under S. O. 55 was illegal and void ab initio.
(65) It was said that allocation of a wrong label will nor reader the inquiry illegal if the principles of natural justice have been observed. I cannot assent to this proposition. There is a fundamental fallacy in it. The petitioner was entitled to object, which she did, to an inquiry under S.O. 55. She was entitled to refuse to take part in the inquiry which was not conducted in accordance with law. She was never told that it is an inquiry under Rule 14 of the Central Civil Service (Classification, Control and Appeal) Rules, applicable to her.
(66) What is the point of given someone a right to be heard while dining to him the right to be heard under the appropriate Government Rules It is a hollow and barren manifestation of natural justice to say that the petitioner was heard in defense of herself by the Council even though the Council had no jurisdiction over her and even though S.O. 55 did not apply to her case. The truth is that it was an. inquiry by a body which had no jurisdiction over the petitioner and under a provision which had no application to her. A clearer case of denial of natural justice it is difficult to imagine. The purported order of dismissal is void and of no effect. It had no effect on petitioner's status. She continues to be an inspector and entitled to pay and other benefits to date.
(67) Where an order of dismissal is made in violation of mandatory provision of a statute the order is a nullity. Because a statutory body has acted in .breach of a mandatory obligation imposed by a statute. Vine v. National Dock Labour Board (1957) A. C. 488, Ridgev. Baldwin (1964) Ac 40, Malloch v. Aberdeen Coro (1971) 1 Wlr 1578 have established this proposition. The supreme court has accepted these decisions as laying down correct-law. So I hold that purported dismissal is null and void. (See U.P. Warehousing Corp. v. Vijai Narain, : (1980)ILLJ222SC ).
(68) What actually happened was this. The Executive Committee never heard the petitioner. The inquiry under S.O. 55 is sought to be justified on two grounds. Firstly it was said that S.O. 55 applies to inspector as it generally speaks of 'any person'. do not agree. It has to be read in the context of the preceding S.O. 51 and 52 and the following S.O. 56. Secondly it was said that the label does not matter. I can only reply that change of label from S.O. 55 to Rule 14 of C.C.S. Rules is such a fundamental alteration as totally alters petitioner's status and her remedy. She was misled by the wrong lable. She took no part. She gave no Explanationn. She did not prepare her defense. She cannot now be told that it was in fact an inquiry under Rule 14 of C.C.S. Rules and that she should have attended the inquiry. This will be nothing short of outrageous injustice. Should we tell her that she should not have been misled and deceived by the allocation of a wrong label and that she is bound by the result of the disciplinary proceedings A responsible body like the Council cannot be allowed to take a contradictory stand. The hearing was a traversity of justice. This is the short answer to Mr. Chandrasekharan's argument that the petitioner has not been prejudiced in any manner by inquiry being labelled as one under S.O. 55.
(69) What are these Standing Orders on which the parties sharply differed. The Council expressly said that the inquiry was under S.O. 55. The petitioner denied and pinpointed the illegality. The Standing Orders are not administrative instructions, as was contended by Mr. Chandrasekharan. He argued that they have no statutory force. I do not agree. They are statutory in character. Regulations 37 and 60 speak of the Standing Orders as may be framed from time to time by the Council. Both the regulations and the standing orders are the progeny of the Council. They are like lineal descendants. Mr. Chandrasekharan argued that the breach of Standing Orders is not justiciable. It will be a remarkable oddity with a frightening scope if it is so. The Standing Orders will become an engine of oppression if they can be disregarded at will. In my opinion they are binding.
(70) It is a rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged. It means that the Council most scrupulously observe the Standing Orders. Otherwise its action is invalid. 'He that takes procedural sword shall perch with the sword', Justice Frankfurter has said.
(71) This is a check on the exercise of arbitrary power by the executive authority (Ramana v. International Air Port Authority, : (1979)IILLJ217SC ).
(72) Now suppose S. O. 55 applies as is the case of the Council. The critical words are 'no order of dismissal, removal of reduction shall be passed unless the person has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.' This has not been done in this case at all. The petitioner was never asked to show cause, after the inquiry report was made, why she should not be dismissed from service. The inquiry report was supplied to her after the order of dismissal was passed on 25-11-1980. So she never knew that the punishment of dismissal is going to be imposed on her. She could not show cause to the Council on 25-11-1980 when she appeared before it because she was not told that they were thinking of dismissing her.
(73) Two things must be done before the order of dismissal is made. First the inquiry report must be supplied to the party affected. Secondly, the delinquent officer has to be told that the punishment proposed is this, namely, removal, reduction or dismissal. She should show cause against it. This was not done. These are fatal flaws in the inquiry. Sending the inquiry report with the order of dismissal is a clear violation of principles of natural justice which S.O. 55 embodies. After the order of dismissal has been made sending the inquiry report is meaningless. The core of S.O. 55 is that against the action proposed the delinquent officer must be heard. This is the essence of natural justice. It is elementary justice. Tell the man that you propose to dismiss him. Ask him what he has to say against the proposed punishment. This can be done only after a copy of the inquiry report has been supplied to him. This is the crux of the- case.
(74) I have come to the conclusion that the decision reached by the Council did not accord with the standards of fairness that should have been observed. The function of the courts is to see that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by the law. The purpose of writ jurisdiction is to ensure that the individual is given a fair treatment by the authority to which he has been subjected. (Chief Constable v. Evens (1982) 3 All Er 141 per Lord Hailsham at p. 143).
(75) In my opinion S.O. 55 under which the inquiry was launched does not apply. It applies to the 'members of the staff' as is clear from S.O. 51. In S. O. 52 the authorities competent to impose penalties on the members of the staff are entanerated. S.O. 5 makes it clear that in the Standing Orders 'staff means secretary, ministerial staff and class Iv staff as defined in the regulations. When we turn to Reg. I we find 'ministerial staff and 'class Iv staff' defined. Reg. 2(7) says :
'(7)'Ministerial staff' means the superintendents, assistants, accountants, clerks, stenographers and typists appointed under section 8(2)(d) of the Act. (8) The Class Iv staff' means daftries, jamadars, peons chowkidars and sweepers appointed under section 8(2)(d) of the Act.'
(76) The staff does not include inspectors. They are an independent category. Regulation 2(4) says : 'Inspectors mean inspectors appointed under S. 13(1) of the Act.' So they are outside the range of S.O. 51, 52, 55 and 56.
(77) The Standing Orders prescribe the general conditions of service. Whether other Standing Orders apply to inspectors or not I do not decide. But one thing is clear. S.O. 55 under which the purported inquiry was made does not apply to the petitioner. S.O. 4 says In case where these Standing Orders do not make any provision the Government of India Rules shall apply.' The Government rule is Rule 14 of C.C.S. Rules which was applicable, That rule was also not followed. It was not even in contemplation. In fact it was never invoked in the inquiry..
(78) So my conclusion on this part of the case is that inquiry under S.O. 55 was based on a misapprehension of the true legal position and the inevitable consequence is that the principles of natural justice were violated.
(79) The essential procedural requirements must be observed and failure to observe them may result in a dismissal being declared to be void. How can a responsible body of men reach a fair decision without hearing the petitioner what she has to say on the report of the inquiry officer and the proposed punishment The purported order of dismissal is in breach of natural- justice and thereforee a nullity.
(80) Summary A statutory body has acted in breach of a mandatory obligation imposed by a statute. The Council is in breach of a statutory obligation. The Act gives a statutory status to the petitioner as an inspector. She has a right and interest to challenge any lawful act that interferes with the status. If the actings here complained of were 'a nullity the petitioner, in, my opinion, has a clear right to have the fact declared by the court. This is not a straightforward relationship of master and servant. The intervention of the statute makes it a statutory employment, Petitioner's dismissal is invalid. She continues in the employ of the Council. This is an entirely different situation from the ordinary master and servant case. Here the dismissal order is a nullity. She continues to have the right to be treated as an inspector with all the benefits which the statute confers on her. It is thereforee right that, on an interpretation of the Act, the court should declare her rights. (Vine v. National Dock Labour Board 1956 All E.R. 939.
(81) The common. law was inadequate. There was no security for the worker in the social framework. The statute intervened to confer a status on the employee. To leave the workman, unprotected by the State was frankly unjust. It was not laissezlatre, but liberty for the masters and repression for the men. (G. M. Traveleyan English Social History. New illustrated ED. 1976 P. 424). In public employment the statute introduced explicitly or impliedly the principle of natural justice. These are standards of fairness. Broadly speaking, they have been in essence always the same at all times, remote or recent.
(82) To outsiders the Council and the Committee may appear to be inseparable sisters. But the Act makes a distinction. The Executive Committee has the power of appointment of inspectors. It has an assigned field. It is a capital organ in the statutory scheme. It moves in its own orbit to a degree that the Council was not willing to recognise in this case. There is distribution of powers between the Council and the committee. With such persuasive power as she possessed the petitioner addressed the Council. She could not carry the day. The Council dismissed her. But the fundamental question remains : Did Council have the power to dismiss On a reading of the Act plainly the answer mst be 'no'.
(83) CONCLUSION. Before I close I must record that the petitioner is willing to accept 1-8-1928 as her date of birth and she is prepared to continue inservice on that basis. She has put in about 10 years of service. At one stage in the course of hearing a suggestion of compromise was made that 1-8-1928 be accepted as her date of birth and this unhappy chapter be closed. She said that on joining she will make no claim for arrears of salary from 25-11-1980 till she is restored to her office if she is allowed to continue till 58 years of age. Mr. Chandrasekharan conveyed this proposal to the Council on 16-4-1983. The Council, I was informed, considered the proposal and rejected it. They adhered to their previous decision. So the arguments in the case were resumed on 18-4-1983. As it is 'a question of survival of the petitioner', as the Supreme Court put it while ordering an expeditious hearing of her case, I have delivered the judgment immediately at the conclusion of the hearing. On all points I hold against the Council.
(84) For these reasons I quash and set aside the order of dismissal dated 25-11-1980. I make a declaration that the purported order of dismissal dated 25-11-1980 is a nullity. The petitioner continues in service of the Council as an inspector. She will be entitled to salary and other benefits todate. In C.W. 2100 of 1982, the petitioner automatically succeeds. I leave the parties to bear their own costs.