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2010 DIGILAW 652 (DEL)

Ajay Bhatia v. Government of NCT of Delhi

2010-05-13

RAJIV SAHAI ENDLAW

body2010
Rajiv Sahai Endlaw, J. 1. The maintainability of a writ petition against the Indraprastha Medical Corporation Ltd. (IMCL) operating Apollo Hospital at Sarita Vihar, New Delhi, at the instance of its dismissed employee is for consideration. The petitioner was appointed and working as the Housing Keeping Supervisor with the hospital. His services were terminated on 5th January, 1999 under Rule 33 of the Service Rules of the hospital, for the misconduct of absence without leave for more than eight consecutive days without sufficient cause. Departmental appeal preferred by the petitioner in accordance with the Rules also did not meet with any success. Aggrieved therefrom, the present petition has been filed claiming the relief of reinstatement with all back wages, continuity in service etc. 2. Notice of the petition was issued to the Government of NCT of Delhi impleaded as respondent No. 1 and to the hospital and its various officials impleaded as respondents No. 2 to 4. It was the contention of the senior counsel for the hospital as far back as on 11th October, 2000 that the IMCL is not a State within the meaning of Article 12 of the Constitution and the writ petition was not maintainable. Objection to the same effect was also taken in the counter affidavit. Though the petitioner had filed an application for interim relief claiming subsistence allowance but the application was dismissed on 22nd April, 2002. Rule was issued in the petition on 22nd April, 2002. On 7th December, 2007 it was ordered that arguments will be heard first on the aspect of maintainability of the petition. 3. The respondent hospital has filed an additional counter affidavit also with respect to the constitution of the IMCL. Rule was issued in the petition on 22nd April, 2002. On 7th December, 2007 it was ordered that arguments will be heard first on the aspect of maintainability of the petition. 3. The respondent hospital has filed an additional counter affidavit also with respect to the constitution of the IMCL. The respondent No. 1 Government of NCT of Delhi has also filed a short counter affidavit pleading that IMCL is a separate legal entity and is a company incorporated under the Companies Act, wherein the Government of NCT of Delhi also has a share; the company is running and managed by the Board of Directors elected by the shareholders; the Chief Secretary of Government of NCT of Delhi is the Chairman of the company and the Government of NCT of Delhi independently de hors, its shareholding has no control over the working of the company; the company engages officials and staff as per its own Rules and Regulations and the staff engaged by the company are employees of the company and have nothing to do with the Government of NCT of Delhi. It is further pleaded that the Government of NCT of Delhi is entitled to exercise its rights only as a shareholder in the company and has no supervisory rights over the company. 4. The petitioner appearing in person and the counsel for the Government of NCT of Delhi and the counsel for the respondent hospital have been heard on the aspect of maintainability. 5. The petitioner, besides relying on the contents of his pleadings has drawn special attention to Ajay Hasia and Ors. v. Khalid Mujib Sehravardi, AIR 1981 SC 487 and to the recent judgment of the Division Bench of this Court in a writ petition issuing directions to the hospital for meting out free treatment. He further contends that the Government has given 15 acres of land to the IMCL for Rs. 1/- only and also contributed Rs. 38 crores in construction of the hospital building. He urges that because the company is running public functions, directions for meting out free treatment were issued by the Division Bench. It is contended that the writ would lie on that ground alone. 6. 1/- only and also contributed Rs. 38 crores in construction of the hospital building. He urges that because the company is running public functions, directions for meting out free treatment were issued by the Division Bench. It is contended that the writ would lie on that ground alone. 6. The counsel for the hospital has informed that the judgment dated 22nd September, 2009 of the Division Bench referred to by the petitioner being W.P.(C) No. 5410/1997 titled All India Lawyers' Union (Delhi Unit) v. Government of NCT of Delhi is in appeal before the Supreme Court. He relies solely on P.B. Ghayalod v. M/s Maruti Udyog Ltd., AIR 1992 Delhi 145 wherein a Division Bench of this Court held a writ petition, at the instance of an employee of Maruti Udyog Ltd., to be not maintainable. The counsel further urges that the Government of NCT of Delhi is not the only shareholder of the company. He further contends that the running of a hospital is neither a public function nor is the company in the position of a monopoly. He thus contends that the writ does not lie against the respondent hospital. 7. The counsel for the Government of NCT of Delhi has drawn attention to the letter dated 23rd May, 1996 of appointment of the petitioner whereunder the petitioner is governed by the Rules in accordance wherewith his services have been terminated. It is contended that the petitioner has available to him the remedies of the Civil Court or the Labour Court, but no writ under the Article 226 lies. 8. The facts which emerge are that the President of India acting through the Lt. Governor of National Capital Territory of Delhi has granted a lease of land where the hospital is situated, to the company for the purposes of establishing a Multi Specialty Hospital at a rent of Rs. 1/- p.m. The company under the said lease has agreed to admit free of charge such patients as may be recommended by the Lt. Governor of National Capital Territory of Delhi or any other officer authorized in this behalf up to 1/3rd of the bed strength. The company is a joint venture company in terms of an agreement dated 11th March, 1988 between the Apollo Hospital Enterprise Ltd. and the President of India through the Lt. Governor of Delhi acting as the Administrator of Delhi. The company is a joint venture company in terms of an agreement dated 11th March, 1988 between the Apollo Hospital Enterprise Ltd. and the President of India through the Lt. Governor of Delhi acting as the Administrator of Delhi. As per the additional affidavit filed by the hospital, the Government of NCT of Delhi holds 26% of the share capital of the company, the Apollo Hospital Group holds 25% and the remaining share capital is held by approximately 20,000 shareholders including foreign investors. As per the Articles of Association of Company, the Government of NCT of Delhi, Apollo Hospital Group each are entitled to nominate 1/3rd of the total number of Directors besides two Directors to be nominated by the foreign investors and the remaining Directors to be nominated by the Financial Institutions. Out of the 13 Directors, four are stated to be nominees of Government of NCT of Delhi, four of Apollo Hospital Group including the Managing Director, two of foreign investors and two from the public shareholders and one nominee Director represents the Financial Institutions. 9. The Division Bench of this Court in Maruti Udyog (supra) case in which the Government of India was holding 60% share and Suzuki Motor Co. having 40% share held on the basis of documents in that case that the Government could not take any major policy decision without prior approval of the Suzuki Motor Co. It was also found that the Government of India was not the only source of financing of the company. It was further found that the company did not enjoy monopoly status in the business it was carrying on. For the said reasons Maruti Udyog was not held to be instrumentality of the State within the meaning of Article 12 of the Constitution and writ was held not maintainable against it. The other reasons which prevailed with the Division Bench were that a substantial part of shareholding belonged to a foreign company, the Board of Directors practically had full control over the management of affairs of the company and it was held not to be in public interest and in the interest of the economy of the country to subject such foreign collaborators to the rigours of Article 14 by calling these joint ventures as instrumentalities of the State. The said judgment would apply on all fours to the facts of the present case also. 10. The said judgment would apply on all fours to the facts of the present case also. 10. The Supreme Court in Federal Bank Ltd. v. Sagar Thomas, AIR 2003 SC 4325 held that a private company carrying on business cannot be termed as an institution or company carrying on statutory or public duty; a private body or a person may be amenable to writ jurisdiction only where it may become necessary to compel such body to enforce any statutory obligations or such obligations of public nature casting positive obligation upon it. Such conditions were found to be lacking in case of a private company carrying on commercial activity of banking. It was further held that merely because regulatory provisions had been made to ensure that activity is carried on by a private company within a discipline neither confers such status on the company nor puts any obligation upon it which may be enforced through issue of a writ under Article 226 of the Constitution. The dismissed employee of the Bank, in this case, was not found to be enforcing any statutory duty on the part of the Bank. 11. A Division Bench of this Court in S.C. Sharma v. U.O.I. MANU/DE/2837/2007 : 2007 (94) DRJ 477 [DB] also held that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs - it is used for enforcement of various rights of the public - the scope of mandamus is determined by the nature of the duty to be enforced rather than the identity of the authority against whom it is sought - if the private body is discharging a public function and denial of any right is in connection with public duty imposed on such body, public law remedy can be enforced - public law element in the action is essential. The decision to terminate services of employee was held not to have any element of public policy; it was held to be a matter of contract in which principles of judicial review in any case has limited application. 12. Thus the question is not whether writ remedy lies against the IMCL or the hospital; the said remedy does not lie in the facts of the present case. 13. 12. Thus the question is not whether writ remedy lies against the IMCL or the hospital; the said remedy does not lie in the facts of the present case. 13. The judgment in All India Lawyers' Union (supra) case has been examined to see whether the same, in any way, affects the earlier judgment in Maruti Udyog case. It is not found to be so. In All India Lawyers' Union case the petitioner was seeking enforcement of the terms imposed by the Government of NCT of Delhi while granting lease of land to the company/hospital at the rate of Rs. 1/- p.m. Though the company and the hospital were respondents in the said writ petition but in the judgment there is no discussion as to the maintainability of the writ petition. The writ petition was certainly maintainable against the Government of NCT of Delhi seeking directions against it to enforce the lease terms. The company/hospital was impleaded merely as necessary or proper party. Merely because directions were ultimately issued against the hospital for the reason of the Government of NCT of Delhi having failed to enforce the lease terms would not imply that the writ lies against the company/hospital. In fact, the judgment notices that the matter could also be considered in public interest. Moreover, in that case a public duty imposed on the Hospital was being enforced. 14. The judgment of the Supreme Court in Ajay Hasia (supra) to which special attention was drawn by the petitioner has been considered in the Maruti Udyog case. The petitioner in his pleading has also referred to Som Prakash Rekhi v. Union of India AIR 1981 SC 212 and Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628 which have also been considered in the Maruti Udyog case. 15. The matter being fully covered by the judgments aforesaid, the writ petition is held to be not maintainable and is dismissed as such. The petitioner shall however be at liberty to avail his remedies, if any, before an appropriate fora. No order as to costs.