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2002 DIGILAW 153 (JHR)

Jhandu Mahto v. Central Fuel Research Institute

2002-02-11

D.N.PRASAD, VINOD KUMAR GUPTA

body2002
ORDER 1. This reference to the Division Bench has been made by a learned Single Judge of this court to resolve an apparent conflict between a view taken by a learned Single Judge of this court and the opinion of the Supreme Court. 2. At the centre of controversy is the issue whether the Council for Scientific and Industrial Research (CSIR) is or is not an authority within the meaning of Article 12 of the Constitution of India. A learned Single Judge of this Court in the case of Gunjan Mukherjee v. Union of India and Ors. reported in 2000(1) PLJR 759 has held CSIR to be an authority within the meaning of Article 12 of the Constitution, The observations of the learned single Judge are contained in paragraph 12 of the aforesaid Judgment which were reproduce:-- "In the light of the principles laid down by the Apex Court in Ajay Hasias case (supra) and Ramchandranan Iyers case (supra) and also regard being had to the facts stated by the petitioner in the writ petition and the supplementary affidavit. I am of the opinion that the respondents, namely, Central Fuel Research Institute which is a Wing of Council of Scientific and Industrial Research is an Authority within the meaning of Article 12 of the Constitution and consequently the writ application filed by the petitioner is maintainable." 3. Apparently, therefore, the learned Single Judge was relying upon the propositions of law settled in the case of Ajay Hasia v. Khalid Mazid reported in AIR 1981 SC 487 and in the case of P.K. Ramchandranan Iyer v. Union of India and Ors. reported in AIR 1984 SC 541 . Undoubtedly, he was referring to both these Judgments of the Supreme Court with a view to decide that the view earlier taken by the Supreme Court with regard to CSIR in the case of Sabhajit Tewary v. Union of India Reported in AIR 1975 SC 1329 stood overruled. By a process of recapitulation, let us consider and examine whether the view of the learned Single Judge in Gun-jan Mukheijee (supra) is correct or not. 4. By a process of recapitulation, let us consider and examine whether the view of the learned Single Judge in Gun-jan Mukheijee (supra) is correct or not. 4. In the case of Sabhajlt Tewary (supra), the following observations of their Lordships of the Supreme Court are relevant to determine whether CSIR is or is not an Authority within the meaning of Article 12 of the Constitution:-- "Extracting the features as aforesaid, it was contended that these would indicate that the Council of Scientific and Industrial Research was really an agency of the Government. This contention is unsound. The Society does not have a statutory character like the Oil and Natural Gas Commission, or the Life Insurance Corporation or Industrial Finance Corporation. It if a society incorporated in accordance with the provisions of the Societies Registration Act. The fact that the Prime Minister is the President or that the Government appoints nominees to the Governing Body or that the Government may terminate the membership will not establish anything more than the fact that the Government takes special care that the promotion, guidance and co-operation of scientific and industrial research, the institution and financing of specific researches, establishment or development and assistance to special institutions or departments of the existing institutions for scientific study of problem affecting particular industry in a trade, the utilisation of the result of the researches conducted under the auspices of the Council towards the development of industries in the country are carried out in a responsible manner." 5. From The aforesaid observations, it becomes very clear that their Lordships were of the view that CSIR in contradistinction to Oil and Natural Gas Commission. Life Insurance Corporation or the Industrial Finance Corporation does not have a statutory character and that it is a society incorporated in accordance with the provisions of the Societies Registration Act. Then the Court went on to notice some salient features with respect to CSIR, such as the fact that the Prime Minister is the President or that the Government appoints nominees to the Governing Body etc. etc. It went on to observe that these features would not establish anything more than the fact that the Government takes special care that the promotion, guidance and co-operation of scientific and industrial research etc. etc. are carried out in a responsible manner. etc. It went on to observe that these features would not establish anything more than the fact that the Government takes special care that the promotion, guidance and co-operation of scientific and industrial research etc. etc. are carried out in a responsible manner. Undoubtedly, the fact about the CSIR being a society registered under the Societies Registration Act was also one of the points under consideration in the aforesaid judgment. 6. Sabhajit Tewary (supra) was followed by Ajay Hasia (supra). This case related to Regional Engineering College Srinagar which undoubtedly also was a society registered under the Societies Registration Act. Sabhajit Tewary was specifically noticed in the aforesaid judgment. The following observations of their Lordships in Ajay Hasia do point out dearly and categorically to the fact that Sabhajit Tewary did not at all escape the attention of their Lordships. We quote:-- "The learned counsel appearing on behalf of the respondents Nos. 6 to 8 however, relied strongly on the decision in Sabhajit Tewary v. Union of India, (1975) 3 SCR 616 : AIR 1975 SC 1329 and contended that this decision laid down in no uncertain terms that a society registered under the Societies Registration Act, 1860 can never be regarded as an authority within the meaning of Article 12. This being a decision given by a Bench of five Judges of this Court is undoubtedly binding upon us but we do not think it lays down any such proposition as is contended on behalf of the respondents. The question which arose in this case was as to whether the Council of Scientific and Industrial Research which was juridically a society registered under the Societies Registration Act, 1860 was an authority within the meaning of Article 12. The test which the Court applied for determination this question was the same as the one laid down in the International Airport Authoritys case and approved by us, namely, whether the Council was an instrumentality or agency of the Government. The Court implicitly assented to the proposition that if the Council were an agency of the Government it would undoubtedly be an authority. But, having regard to the various features enumerated in the Judgment, the Court held that the Council was not an agency of the Government and hence could not be regarded as an authority. The Court implicitly assented to the proposition that if the Council were an agency of the Government it would undoubtedly be an authority. But, having regard to the various features enumerated in the Judgment, the Court held that the Council was not an agency of the Government and hence could not be regarded as an authority. The Court did not rest its conclusion on the ground that the Council was a society registered under the Societies Registration Act, 1860, but proceeded to consider various other features of the Council for arriving at the conclusion that it was not an agency of the Government and therefore not an authority. This would have been totally unnecessary if the view of the Court were that a society registered under the Societies Registration Act can never be an authority within the meaning of Article 12. 7. As would, therefore, appear quite clear, their Lordships were of the view that the test which the Supreme Court applied for determining the question whether CSIR was an authority within the meaning of Article 12 or not was the same as the one laid down in the International Airport Authoritys case and that the Court implicitely assented to the proposition that if the Council were an agency of the Government, it would undoubtedly be an authority. However, coming to the specific question, it did observe, as is apparently and manifestly clear from a reading of the aforesaid quoted extract of the judgment, that having regard to the various features enumerated in Sabhajit Tewary. the Court held that the Council was not an agency of the Government and hence could not be regarded as an authority within the meaning of Article 12 of the Constitution of India. More emphatically and explicitely the Court went on to hold that Sabhajit Tewary did not rest its conclusion on the ground that the Council was a society registered under the Societies Registration Act, but proceeded to consider various other features of the Council for arriving at the conclusion that it was not an agency of the Government. 8. It is not an unimportant fact that both Sabhajit Tewary and Ajay Hasia were judgments delivered by the Five-judge Benches of the Supreme Court. 9. 8. It is not an unimportant fact that both Sabhajit Tewary and Ajay Hasia were judgments delivered by the Five-judge Benches of the Supreme Court. 9. Lastly came (on the question of CISR being such an authority or not) the case of P.K. Ramchandranan Iyer (supra) In this judgment also, which was delivered by a two-judge Bench of the Supreme Court, their Lordships noticed Sabhajit Tewarys case very clearly and categorically. The following observations are apposite:-- "It was however urged that the Council of Scientific and Industrial Research (CSIR for short) a society registered under the Societies Registration Act and having an identical set-up as well as constitution, was held not to be an instrumentality of the State or other authority under Article 12. In Sabhajit Tewarys case ( AIR 1975 SC 1329 } this Court held that the CSIR did not have a statutory character like the Oil and Natural Gas Commission, or the Life insurance Corporation or Industrial Finance Corporation and it was a society incorporated in accordance with the provisions of the Societies Registration Act. The fact that the Prime Minister is the President or that the Government appoints nominees to the Governing Body or that the Government may terminate the membership will not according to this Court establish anything more than the fact that the Government takes special care that the promotion, guidance and eo-operation of scientific and industrial research, the institution and financing of specific research establishment of development and assistance to special institutions for scientific study of problems affecting particular industry in a trade, the utilisation of the result of the researches conducted under the auspices of the Council towards the development of industries in the Country are carried out in a responsible manner, and these aspects are not sufficient to reach the conclusion that the Society was an agency or instrumentality of the Government. This Court also referred to some decision which have held that the companies incorporated under the Companies Act and the employees of these companies do not enjoy the protection available to Government servants as contemplated in Article 311, This Court accordingly concluded that CSIR is not an instrumentality of the Government within the meaning of Article 12 of the Constitution, and the writ jurisdiction cannot be involved against it. Much water has flown down the James since the dicta in Sab-hajit Tewarys case and conceding that it is not specifically overruled in later decision, its ratio is considerably watered down so as to be a decision confined to its own facts. The case is wholly distinguishable on the facts apart from the later indicia formulated by the Court for ascertaining whether a body is other authority within the meaning of Article 12. A mere comparison of the history of ICAR as extensively set out here in before and the setting up of CSIR would clearly show that ICAR came into existence as a department of the Government, continued to be an attached office of the Government even though it was registered as a society and wholly financed by the Government and the taxing power of the State was invoked to make it financially viable and to which independent research institutes set up by the Government were transferred. None of these features was present in the case of CSIR and, therefore, the decision in Sabhajit Tewarys case would render no assistance and would be clearly distinguishable." 10. As were have noticed with reference to the aforesaid observations of their Lordships that even in this judgment, their Lordships clearly were trying to draw a distinction between the functioning and parameters of ICAR and CSIR and it is in this backdrop that the observation "none of these features was present in the case of CSIR and, therefore, the decisions in Sabhajit Tewarys case would render no assistance and would be clearly distinguishable", came to be made to draw a clear distinction between Sabhajit Tewary and other judgments including Ajay Hasia. 11. The aforesaid critical analysis of the law on the subject, therefore, clearly points out unmistakably to the conclusion that the law as it stands today (as pronounced by the Supreme Court) is that. CSIR is not an authority within the meaning of Article 12 of the Constitution. 12. Article 141 of the Constitution of India Clearly lays down that the law declared by the Supreme Court is binding on all Courts in the Country. Whether Ajay Hasia in its critical and analytical appreciation, with reference to the functioning of a society (undoubtedly registered under the Societies Registration Act) but having peculiar fea-tures. 12. Article 141 of the Constitution of India Clearly lays down that the law declared by the Supreme Court is binding on all Courts in the Country. Whether Ajay Hasia in its critical and analytical appreciation, with reference to the functioning of a society (undoubtedly registered under the Societies Registration Act) but having peculiar fea-tures. characteristics and attributes like CSIR, and by the exposition of law (after application of such characteristics, attributes, features and having regard to its functioning of such a Society, including the funding of such Society entirely by the Govt. and/or the Governments pervasive control over its functioning) did mean anything or not. but in so far as CSIR in particular is concerned, looked at directly from the pronouncement contained in Sabhajit Tewary. keeping in view Article 141 of the Constitution, the legal ex-position about CSIR not being an authority within the meaning of Article 12 of the Constitution continuing as uptill now, the learned Single Judge ought to have taken a contrary view. We are saying so also because in both the aforesaid cases, in Ajay Hasia as well as in P.K. Ramachandranan, their Lordships, while taking due notice of Sabhajit Tewary. had occasion to either come out with pertinent observations to the effect that after the pronouncement by the Apex Court in Ajay Hasia, based on the parameters laid down in Ajay Hasia and in the light of the ratio in that case, CSIR should be treated as an authority within the framework of Article 12 or if the making of these observations on account of any constitutional restraints was not possible, and understandably so, based on these later developments, to refer this particular point about the review of Sabhajit Tewarys ratio to a larger Bench, Their Lordship did not do either. All that can be said is, perhaps, their Lordships thought that the pronouncement in Sabhajit Tewary with regard to the statues of CSIR did not. require any modification, review or reconsideration. We cannot sit in appeal over that Judgment. As long as Sabhajit Tewary has either not been overruled, or an appropriate Bench of the Apex Court does not make observations pertinent to the issue involved, in terms of Article 141 of the Constitution of India, all of us being bound by Sabhajit Tewary. require any modification, review or reconsideration. We cannot sit in appeal over that Judgment. As long as Sabhajit Tewary has either not been overruled, or an appropriate Bench of the Apex Court does not make observations pertinent to the issue involved, in terms of Article 141 of the Constitution of India, all of us being bound by Sabhajit Tewary. have no option but to respectfully follow the ratio in that Judgment and hold that CSIR is not an "authority" within the meaning of Article 12 of the Constitution. The aforesaid Judgment of the learned Single Judge, therefore, not being a good law, is overruled by us, The reference having accordingly thus been answered by us, the matter is sent back to the learned Single judge for disposal of the writ application in accordance with law.