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2002 DIGILAW 56 (JK)

Gh. Rasool Bhat v. Indian Red Cross Society

2002-03-06

MUZAFFAR JAN

body2002
1. This writ petition has been submitted praying to quash the termination order of the petitioner bearing No. RC/FIR/1008-09 dated: 02-05-1987. It appears that the petitioner, an employee of Indian Red Cross Society, was found absent from duty from 18th January, 1986 to 27th January. 1986. He was placed under suspension and was asked to explain the reasons for his absence. The explanation for absence, submitted by the petitioner, does not seem to have been accepted by the respondents and a full-fledged enquiry was conducted resulting in termination of the services of the petitioner vide Order No. RC/FIR/1008-09 dated 2nd May, 1987. It is this order which is sought to be quashed. 2. The main submissions made in the petition are that the petitioner was arrested in FIR No. 32/1986 under sections 304-A/314, 120-B of Ranbir Penal Code and was detained in Police Station from 18th January, 1986to27th January, 1986. According to the petitioner, on account of this disability, he could not attend his duty. When the petitioner was released in the evening of 27th January, 1986, he reported to duty on 28th January, 1986, but was not allowed to mark his attendance. The petitioner was placed under suspension without any justification and, in The morning of 20th January, 1986, wife of the petitioner was also arrested. The enquiry was conducted at the back of the petitioner and no opportunity was given to him to cross-examine the witnesses. The officers, holding the enquiry were not duly appointed and, as such, the enquiry was not held by the competent persons in accordance with law. On these grounds, it is prayed that the impugned order be quashed. 3. The stand and the submissions of the respondents taken in the reply-affidavit and arguments is that the writ petition is not maintainable against the Indian Red Cross Society as the Organisation is a voluntary Society and not an instrumentality of the State. Therefore, it is not amenable to the writ jurisdiction of this court. It is further submitted that the petitioner was on unauthorized absence from 18th January, 1986 to 27th January, 1986 and was not in police lockup on all these days. The petitioner, according to the respondents, was in the police lock-up only on 20th January, 1986 and suspension order was served on him on 25th January, 1986. It is further submitted that the petitioner was on unauthorized absence from 18th January, 1986 to 27th January, 1986 and was not in police lockup on all these days. The petitioner, according to the respondents, was in the police lock-up only on 20th January, 1986 and suspension order was served on him on 25th January, 1986. The petitioner associated with the enquiry and submitted that he did not want to give any defence to refute the charge and, as such, the enquiry was conducted strictly in accordance with the procedure. The respondents have denied that the statements of witnesses were recorded at the back of the petitioner, depriving the petitioner the right to cross-examine them. It is also submitted that the officer appointed to conduct the enquiry was competent to hold the enquiry under law. The petitioner was provided with a copy of the enquiry report. On these submissions, the respondents pray that the writ petition be dismissed. 4. It may be noticed here that this petition was dismissed by a Co-ordinate Bench of this Court on 24th July, 1997 after the learned counsel for the petitioner failed; despite opportunities given, to show that the Indian Red Cross Society was an instrumentality/agency of the State within the meaning of Article 12 of the Constitution of India. The petitioner filed Letters Patent Appeal No. 318/1997 against the order of the learned Single Judge. The Division Bench vide its order dated 26th August, 1998 set aside the order of the learned Single Judge observing as under: "....that no reasons have been assigned for holding that Indian Red Cross Society is not an instrumentality/agency of the State within the meaning of Article 12 of the Constitution, therefore, the writ petition is not maintainable. The matter has not been examined in the context of Article 26 (sic) of the Constitution of India, [see AIR 1985 Delhi 142 (FB); Master Vibhu Kapoor Vs. Council of Indian School Certificate Examination and another, AIR 1998 Punjab and Haryana 1 (FB); Miss Ravneet Kaur Vs. The Christian Medical College, Ludhiana and another, AIR 1998 Patna 9 Ashok Kumar Singh and etc. Vs. Bihar Industrial and Technical Consultancy Organization Limited and others and AIR 1998 Supreme Court 295, K. Krishna Macharyullu and others Vs. Sri Vankateshwara Hindu College of Engineering and another]� 5. The Christian Medical College, Ludhiana and another, AIR 1998 Patna 9 Ashok Kumar Singh and etc. Vs. Bihar Industrial and Technical Consultancy Organization Limited and others and AIR 1998 Supreme Court 295, K. Krishna Macharyullu and others Vs. Sri Vankateshwara Hindu College of Engineering and another]� 5. In light of the above direction of the Division Bench, the point that needs consideration and decision in the present writ petition is whether the Indian Red Cross Society (respondent No. 1) is an instrumentality of the State within the meaning of Article 12 of the Constitution of India. In this behalf, the petitioner in paragraph 22 of the writ petition has suited that the Indian Red Cross Society, Jammu and Kashmir State Branch, Srinagar, (hereinafter referred to as the "Society™) is the creation of the Indian Red Cross Society Act. 1920. According to the petitioner, the President of the Society is the Governor of the State and Vice-President is the Chief Minister of the State. The other members of the Society are Government officials. Further submission made in the petition is that the service of the Society is governed, by the Constitution thereof and that the terms and conditions of the employees of the Society are governed by the Rules and Regulations governing the services of the State Government Employees. Therefore, according to the petitioner, the Society is an instrumentality of the State, amenable to the writ jurisdiction of this Court. 6. The stand and submission of the respondents is that the Society is a voluntary organization and its affairs are conducted by a Managing Committee. The Governor and Chief Minister of the State are respectively honorary President and Vice-President of the Society and so are the other Government officials holding the membership of the Society in honorary capacity. It is vehemently denied that the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 are applicable to the office bearers of the Society. Therefore, according to the respondents, the Society is not an instrumentality, authority or agency of the State and, consequently, this writ petition is not maintainable. 7. Heard learned counsel for the parties and perused the record. 8. Therefore, according to the respondents, the Society is not an instrumentality, authority or agency of the State and, consequently, this writ petition is not maintainable. 7. Heard learned counsel for the parties and perused the record. 8. In determining whether a corporation or a Government Company, or a private body is an instrumentality or agency of the State, the following tests have been laid down by the Supreme Court from time to time: i) Whether the entire share capital is held by the Government? ii) Whether the corporation enjoys monopoly status conferred by the State? iii) Whether the functions of the corporation are governmental functions or functions closely related thereto? iv) If a department of the Government has been transferred to the corporation? v) The volume of financial assistance received from the State? vi) Whether any statutory duties are imposed upon the corporation? 9. The tests for determining whether an organization is a "State™ or "authority™ within the meaning of Article 12 of the Constitution of India were also laid down by the Apex Court in Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology & Ors. JT 2002 (4) 146; (2002) 5 SCC 111. and it was held: The question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State." Again in G. Basi Reddy etc. etc. Vs. International Crops Research Institute & a nor. JT 2003 (2) SC 180 the Apex Court, while dealing with an identical issue, observed as under: "A writ under Article 226 lies only when the petitioner established that his or her fundamental right or some other legal right has been infringed [Calcutta Gas Co. Vs. Stale of W.B]. The claim as made by the appellant in his writ petition is founded on Articles 14 and 16. The claim would not be maintainable against ICR1S AT unless ICRJSAT were a "State" or "authority" within the meaning of Article 12...." The Apex Court in G. Basi Reddy etc. etc. Vs. Vs. Stale of W.B]. The claim as made by the appellant in his writ petition is founded on Articles 14 and 16. The claim would not be maintainable against ICR1S AT unless ICRJSAT were a "State" or "authority" within the meaning of Article 12...." The Apex Court in G. Basi Reddy etc. etc. Vs. International Crops Research Institute & anor (supra) in para 26 of the judgment, accordingly, held as under: "The facts which have been narrated earlier clearly show that ICRISAT does not fulfill any of these tests. It was not set up by the government and it gives its services voluntarily to a large number of countries, besides India. It is not controlled by nor is it accountable to the government. The Indian government™s financial contribution to ICRISAT is minimal. Its participation in ICRISAT™s administration is limited to 3 out of 15 members. It cannot, therefore, be said that ICRISAT is a State or other authority as defined in Article 12 of" the Constitution.� 10. It may be observed here that the object of International Crops Research Institute (ICRISAT) was to help developing countries, including India, in semi-arid tropics to alleviate rural poverty and hunger in ways that are environmentally sustainable. The object was sought to be achieved by research and development of scientific technologies. Similarly, the Red Cross Societies all over the world are acknowledged as impartial organizations. Their primary aim during wars and peace time is as per the international conventions. It is for the amelioration and relief to the disabled, sick or wounded members of the armed forces during the war time and also to provide relief of sickness, suffering or distress in India whether due to the operation of war or otherwise. These activities are carried by these societies all over India, rather throughout the world on voluntary basis. 11. Applying the tests as laid down by the Apex Court in its numerous judgments to the facts of the present case, it is seen that none of the above factors are available. These activities are carried by these societies all over India, rather throughout the world on voluntary basis. 11. Applying the tests as laid down by the Apex Court in its numerous judgments to the facts of the present case, it is seen that none of the above factors are available. The funds of the Society are managed out of the donations and gifts of general public; there is no financial assistance received by the Society from the Government, and no document of evidence has been placed on record to show that any kind of financial assistance is derived by the Society from the State or the Central Government; State has no control over the affairs of the Society, no statutory duty is cast on the Society; and it has its own constitution, terms and conditions of service of its office bearers. Merely because the Governor is the honorary President or the Chief Minister is the honorary Vice-President of the Society does not bring the Society within the control of the State. It is purely an impartial voluntary organization, depending upon the donations of general public. None of the objects of the Society can be said to be closely related to governmental functions. Therefore, the Red Cross Society cannot be said to be an instrumentality, authority or an agency of the State within the meaning of Article 12 of the Constitution. Consequently, it is not amenable to the writ jurisdiction of this Court. In my view I am supported by a judgment of the Delhi High Court in Sarmukh Singh Vs. Indian Red Cross Society 1985 LAB I.C. 1072. The relevant observations made in the aforesaid judgment are reproduced below: "None of the objects of the Society can. be said to be closely related to governmental functions. The impartiality and neutrality of the Red Cross Societies all over the world and the International Committee of the Red Cross in particular are recognized. I think, because there is no interference in their activities by the Government. The result is that the respondent society cannot be held to be an authority under Article 12 of the Constitution..." 12. I have gone through the judgments referred to in the Division Bench order dated: 26th August, 1998. All those judgments are distinguishable on facts and law. They are of no help to the petitioner in the present case. 13. The result is that the respondent society cannot be held to be an authority under Article 12 of the Constitution..." 12. I have gone through the judgments referred to in the Division Bench order dated: 26th August, 1998. All those judgments are distinguishable on facts and law. They are of no help to the petitioner in the present case. 13. In light of the above, this petition is held to be not maintainable. Since the writ petition is held to be not maintainable, it may not be proper to comment on the merits of the case, as that may prejudice the case of the petitioner if he chooses to go to a civil court, or avail of any appropriate remedy that may be available to him, of course, subject to just exceptions of law. 14. The writ petition is, accordingly, dismissed.