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1984 DIGILAW 746 (ALL)

Anand Mohan v. Union of India

1984-09-18

A.P.MISRA, V.K.MEHROTRA

body1984
JUDGMENT A.P. Misra, J. - The petitioner of this writ petition has sought for a writ of mandamus against the respondents to ban all strikes undertaken by the various units of the State Government as it affects the interest of the public at large. He has also sought for quashing the decision by the respondent No. 6 namely. Sri Lok Pati Tripathi. Health Minister. U.P.. which is stated to be incorporated in Annexure 8 to the writ petition. He has further sought for necessary action against the concerned respondents for the failure of their duties towards the Constitution and public welfare. 2. The petitioner in this case has argued in person. He has described himself in the petition as a social worker, humanist and a social reformer. He has further stated in the petition that he is devoted and dedicated to the maintenance of peace, progress. prosperity, pleasure. parity, justice and discipline. In this petition, the petitioner has expressed his grievance against the Government for its inaction in various fields, which has led to gross indiscipline, disobedience, lawlessness and corruption in the Cour)try. His main contention in the petition is that because of strikes by various constituents of the Government bodies, namely, doctors' strike, strike by the employees of Jal Sansthan. Electric Supply Undertaking, City Roadways staff, Telephone Department, Railway, Nagar Mahapalika, Air Lines etc., the benefit of which is sought to be received by the public does not reach to them, and, in effect, it is creating chaos, which is adversely affecting the life of the community and each citizen of this Country. The Petitioner's main attack during the course of argument has been regarding inconvenience and hardship on account of strike by the doctors in the various Government hospitals including Swarup Rani Nehru Hospital and the Medical College at Allahabad. However, the pith and substance of this petition is that since the individuals manning these State constituents are not performing their fundamental duties, this Court should issue a writ of mandamus to the respondents to ban strike in all these constituents. In effect, the grievance of the petitioner is that the Government is neither following proper policy nor effectively performing its administrative duties in making these constituent units function properly so that effective benefit may accrue to the society which Government is bound to ensure. 3. In effect, the grievance of the petitioner is that the Government is neither following proper policy nor effectively performing its administrative duties in making these constituent units function properly so that effective benefit may accrue to the society which Government is bound to ensure. 3. The object which the petitioner seeks to achieve cannot be doubted to be very laudable, yet, this Court cannot interfere in the policy decision of the Government nor in deciding upon administrative measures to be taken to see that its various constituents function properly and perform their obligations to the society. The Constitution has very clearly demarcated the functions of the Executive, the Legislature and the Judiciary. The petitioner, by means of this petition, is merely seeking a writ to the Government to decide it as a policy to ban the strikes and also seeking, in effect that law should be made that those not performing their fundamental duties should be punished. Both of these are in the realm of the Executive and the Legislative organs for deciding the policy and making law to that effect. The Court. while exercising powers under Article 226'of the Constitution, cannot undertake either the function of the Executive or the Legislature. It is only when an order is passed and law is made by the Executive or the Legislature that this Court can examine whether such an order or the law is sustainable in the eye of law or not. The Court can further test the executive order, if passed, whether it is arbitrary or not or whether it violates any of the fundamental rights enshrined in the Constitution. As stated above, the prayer in this writ petition and also the averments made in this writ petition only point out government's failure which has led to the present inefficiency of various constituent units of the Government. In a democratic set up failings of the Government on the policy fronts cannot be examined by the Court. The Constitution has given power to the people, if they are dissatisfied, to have the Government of their choice. The grievance of the petitioner could more properly be redressed by developing more awareness in the people at large by various voluntary organisations, including persons like the petitioner, that each person should perform his fundamental duties before a right is claimed by him. 4. The grievance of the petitioner could more properly be redressed by developing more awareness in the people at large by various voluntary organisations, including persons like the petitioner, that each person should perform his fundamental duties before a right is claimed by him. 4. We cannot blame the petitioner for filing the present writ petition, which is misconceived in law. He has argued this case in person and is probably not fully aware of the Constitutional limitations of this Court while exercising powers under Article 226 of the Constitution of India. The petitioner's grievance regarding many parts of the implementing machinery of the Government becoming non-functional is not a phenomenon confined to our country but has become phenomenon occurring all over the world. At this stage the observations of the Supreme Court in Dr. P. Nalla Thampy Thera v. Union of India, AIR 1984 SC 74 with citations of certain authorities with approval merit mention and are quoted hereunder: "The implementing machinery has become non-functional. This is so not only in our country. Wilfred Jenks in his address in April, 1972 to the International Law Organisation has summed up the position thus : Throughout the world there is an acute crisis of confidence in integrity and fairness. This crisis of confidence lies at the heart of political instability, economic disorder, industrial disturbance, racial and religious conflict, cultural anarchy, youth unrest and continuous international tension. Disruptive in all these fields, it paralyses action to remove its causes.' Eurger, C.J. of the United States has said : 'We are approaching the status of an imperfect society where capability of maintaining elementary security in the streets, in the schools and for the homes of our people is in doubt. At every stage of the criminal process, the system cries out for change.' 5. What has been extracted above appropriately summarises the current situation all the world over. No purpose is served by laying the blame at the doors of the Government of the day. We must have realism and candour. Independence has been secured at great cost and sacrifice. It is our obligation to maintain it and create an environment in which its fruits can be harvested and shared. Freedom brings responsibility. There can be no rights without responsibilities. In our country, unfortunately individual rights seem to have received disproportionate emphasis without proper stress on corresponding social obligations and responsibilities." 6. It is our obligation to maintain it and create an environment in which its fruits can be harvested and shared. Freedom brings responsibility. There can be no rights without responsibilities. In our country, unfortunately individual rights seem to have received disproportionate emphasis without proper stress on corresponding social obligations and responsibilities." 6. The petitioner in the present writ petition mainly relied on the eight annexures attached to the writ petition, each one of which is a cutting of a news -item of different date of Northern India Patrika except Annexure 6. These annexures, which are merely cuttings of the newspaper, cannot be relied upon to prove the contents thereof unless either the Reporter who made the report swears an affidavit that the contents mentioned therein are authentic to his personal knowledge or an affidavit is made by the person who was present at the time of occurrence of the fact which is reported in the news-item. Annexure 6 is a letter written by the petitioner to the District Magistrate Allahabad on 6th August, 1984, expressing his own views and alleging that these unending strikes are either politically motivated or prestige oriented. He has further averred to the effect in his letter that the Government is not effectively administering the situation of the strikes and if the needful is not done he will be bound to organise public movements. The petitioner himself has very rightly mentioned that redress could be achieved by public movements by bringing awareness in the people. Thus, it would be seen that the letter written by the petitioner being his own opinion and the other annexures being newspaper cuttings would not help the petitioner for making out a case for the exercise of power by this Court in the present proceedings. It is relevant to mention here that the petitioner's own analysis in the present writ petition and his final conclusion in that the present system should be changed to the Presidential form of Government. All these make it absolutely clear that none of his contentions can be raised for the purpose of exercise of power by this Court in the present proceedings under Article 226 of the Constitution. 7. The petitioner further made a submission that the decision taken in the meeting which is reported in the Northern India Patrika on August 12, 1984, by the Health Minister should be stayed. 7. The petitioner further made a submission that the decision taken in the meeting which is reported in the Northern India Patrika on August 12, 1984, by the Health Minister should be stayed. The said cutting is Annexure 8 to the writ petition. Firstly, as aforesaid, no reliance can be placed on the contents of the press report and secondly we find no mention of any order having been passed by respondent No. 6. It merely speaks about the assurance given to the delegates who met him. That cannot be said to be an order of the State Government so as to come within the purview of the Court for being examined whether the said order was passed validly or not. In view of this we do not find any merit even in respect of this contention raised by the petitioner. 8. The petitioner has also prayed for necessary action against the respondents for the failure of their duties towards the Constitutional institutions and public welfare. A writ of mandamus for performance of statutory duties, if not being performed by the authorities, could be issued, but this. Court, while exercising j powers under Article 226 of the Constitution of India, cannot take action against the respondents for the failure in performance of their other duties. The provision for consequences by way of punitive action for failure of duties is within the domain of the Legislature by making such a law or of the Executive by passing such orders which are necessary. In the absence of any such law or order providing for consequences, no writ can be issued to the respondents. 9. After the conclusion of the arguments the petitioner made a mention orally that the case reported in AIR 1981 SC 344 Fertilizer Corporation Kamagar Union (Regd) Sindri v. Union of India may also be considered. he relied on paragraphs 10 and 23 of this decision. The Hon'ble Supreme Court held that the jurisdiction conferred on the Supreme Court by Article 32 of the Constitution can be exercised for the enforcement of the rights conferred by Part III of the Constitution of India and for no other purpose, while jurisdiction of the High Court under Article 226 of the Constitution is not confined only to the enforcement of fundamental rights but is available for any other purpose also. Further, the Supreme Court considered the question of locus standi about which it held that to file a proceeding depends mostly and often on whether a person moving a petition possesses a legal right and that legal right is violated and in appropriate cases it may become necessary, in the changing awareness of legal rights and social obligations, to take a broader view of the question of locus to initiate a proceeding either under Article 32 or 226 of the Constitution. The view taken by the Supreme Court does not, in any way, help the petitioner in this case. Here, the question is not of locus standi or lack of power in this Court to enforce rights other than fundamental rights, but the question it whether the Court, on the facts and circumstances of this case, should exercise powers in the present proceedings. Admittedly, in the present case, the petitioner is seeking mandamus for a direction to the respondents of banning strikes which, at the best, could be either a policy or administrative decision after taking into consideration various facto. It is for the State Government to take that decision in its discretion, after taking into consideration expediency of such a measure, or for the legislature to enact a law to that effect. No mandamus can normally be granted unless it is shown that the respondents had no discretion and were under the Statute obliged to pass such an order. 10. In view of the aforesaid reasons, we do not find any merit in the present writ petition. It is dismissed as being misconceived.