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2014 DIGILAW 294 (TRI)

Dilip Kumar Das v. State of Tripura

2014-07-25

DEEPAK GUPTA

body2014
JUDGMENT Deepak Gupta, C.J.:-- 1. By means of this petition, the Indian Oil Corporation (IOC) has sought for quashing of the proceedings initiated against it under section 21(1) of the Tripura Shops and Establishment Act, 1970 (hereinafter referred to as the Act) in C.R. 310 of 2007 before the learned Judicial Magistrate 1st Class, Dharmanagar, North Tripura. 2. The sole point raised in this petition is whether the IOC being a Government owned Corporation is not amenable to the provisions of the said Act. 3. The Tripura Shops and Establishment Act, 1970 came into force on 29-10-1970. Section 2(b) defines “commercial establishment” and it is not disputed that the IOC would fall within the meaning of a commercial establishment. However, the stand of the IOC is that the provisions of the Act are not applicable to it in view of section 4 of the Act which reads as follows:- 4.(1) This Act shall not apply to-- (a) offices of or under the Central or State Government, The Reserve Bank of India, any Railway Administration or any local authority; 4. The sole question is whether the IOC can be said to be an office or establishment under the Central Government. This question is, in fact, no longer res integra. The Apex Court in C.V. Raman v. Management of Bank of India and another,: AIR 1988 SC 1369 ] was dealing with the issue as to whether State Bank of India and other nationalized banks can be said to be establishments under the Central Government as per the provisions of the Tamilnadu Shops and Establishment Act, wording of which is similar to the present Act. The Apex Court held as follows:- 7. What has to be considered is as to whether the State Bank of India and the nationalised banks can be said to be establishments under the Central Government as contemplated by Cl. (c) aforesaid. What does the word “under” in the said clause mean in the context in which it appears? That is the crucial question which arises for consideration in these cases. The said word ‘under’ not having been defined in the concerned Acts, recourse may be had to its dictionary meanings. Some of them are as follows :- “In or into a condition of Subjugation, regulation or subordination. “(Webster’s Third New International) “Subordinate or lower rank or position”. That is the crucial question which arises for consideration in these cases. The said word ‘under’ not having been defined in the concerned Acts, recourse may be had to its dictionary meanings. Some of them are as follows :- “In or into a condition of Subjugation, regulation or subordination. “(Webster’s Third New International) “Subordinate or lower rank or position”. “In senses denoting subordination or subjugation, with abstract or other subject, denoting the authority or control, direction, case, examination, restraint, etc.” “In or into a position or state of subjugation or submission. “(Shorter Oxford English Dictionary) “Subordinate subjected to” (The Compact, Edition of the Oxford Dictionary) “Subject to the authority, rule, control of” “Subject to the supervision instruction or influence. of “(The Grolier International Dictionary) “In a position of inferiority or subordination to, subject to the rule, government, direction guidance, instruction, or influence of, as, he is under my care, I served under his father.” “in a state of liability, obligation.” “Lower in authority, position, power etc., subordinate.” “held in control or restraint, used predicatively. “(Webster’s Dictionary of the English Language-Encyclopaedia) “The term sometimes used in its literal sense of ‘below in position’ but more frequently in its secondary meaning of ‘inferior’ or subordinate.” (Boviar’s Law Dictionary) “Inferior, subordinate, of lower rank or position (10)-Denoting subordination to; or control by, a person or persons having or exercising, recognising authority or command.” “with abstract or other subs. denoting authority or control, with or without specification of the person or persons exercising it.” (The Compact Edition of the Oxford English Dictionary) “Under has the same significance as by virtue of “by or through the authority of” (In Venkataramiya’s Law Lexicon) “The word “under” may be used in statute in its literal sense as indicating condition of inferiority or subservience or as meaning subject to or in conformity with, denoting curtailment or restriction of, but nevertheless agreement or congruity with, something else to which it is made applicable. Alsop v. Pierce, 19 So. 2d 799, 802, 155 Fla. 184” (Words and Phrases Permanent Edition) 8. We may now advert to the composition and constitution of the State Bank of India and the nationalised banks. Alsop v. Pierce, 19 So. 2d 799, 802, 155 Fla. 184” (Words and Phrases Permanent Edition) 8. We may now advert to the composition and constitution of the State Bank of India and the nationalised banks. The preamble of the State Bank of India Act, 1955 (hereinafter referred to as Act No. 23 of 1955) reads as under :- “Whereas for the extension of banking facilities on a large scale, more particularly in the rural and semi-urban areas, and for diverse other public purposes it is expedient to constitute a State Bank for India, and to transfer to it the undertaking of the Imperial Bank of India and to provide for other matters connected therewith or incidental thereto.” Section 3 provides that a bank to be called the State Bank of, India shall be constituted to carry on the business of a banking and, other business in accordance with the provisions of the Act and for the purpose of taking over the undertaking of the Imperial Bank. It further provides that the Reserve Bank together with such other persons as may from time to time become shareholders ‘in the State Bank in accordance with the provisions of this Act, shall, so long as they are shareholders in the State Bank, constitute a body corporate with perpetual succession and a common seal under the name of the State Bank of India and shall sue and be sued in that name. It shall have power to acquire and, hold property, whether movable or immovable for the purposes for which it is constituted (and) to dispose of the same. According to S. 4 the authorised capital of the State Bank is to be twenty crores of rupees divided into twenty lakhs of fully paid up shares of one hundred rupees each. The Central Government, however, has been given the power to increase or reduce the authorised capital as it thinks fit so, however that the shares, in all the cases shall, be fully paid up shards of one hundred rupees each. Likewise the Central Government under S. 5(2) has been given the power from time to time to increase issued capital in the manner stated therein. Sub-sec. (3) contemplates that no increase in the issued capital beyond twelve crores and fifty lakhs of rupees shall be made without the previous sanction of Central Government. Likewise the Central Government under S. 5(2) has been given the power from time to time to increase issued capital in the manner stated therein. Sub-sec. (3) contemplates that no increase in the issued capital beyond twelve crores and fifty lakhs of rupees shall be made without the previous sanction of Central Government. Section 6 contemplates that all shares in the capital of the Imperial Bank shall be transferred to and shall vest in the” Reserve Bank free of all trusts, liabilities and encumbrances and the undertaking of the Imperial Bank shall be transferred to and shall vest in the State Bank subject to the other conditions laid down therein. Under sub-sec. (2) of S. 7 the power to determine as to whether persons mentioned therein have observed the conditions contemplated by the said sub-section has been given to the Central Government and its decision has been made final. Sub-sec (3) of S. 7 contemplates that the appointment, promotion or increment contemplated by the said sub-section as have been confirmed by the Central Government shall have effect or be payable or claimable. Likewise, the continued grant of the pension, allowance or other benefit, as the case may be, has been made subject to the direction of the Central Government in this behalf. Section 8 contemplates that for the persons who immediately before the appointed day were the trustees of the funds mentioned therein, there shall be substituted as trustees such persons as the Central Government may by general or special order specify. Sub-sec. (1) of S. 16 contemplates that the Central office of the State Bank shall be at Bombay. The Central Government, however, has been conferred with the power to provide otherwise by Notification in the Official Gazette. Sub-sec. (5) of S. 16 provides that notwithstanding, anything contained in sub-sec. (4) the State Bank shall establish not less than four hundred branches in addition to the branches referred to in sub-sec. (3) within five years of the appointed, day, or such extended period as the Central Government may specify in this behalf and the places where such additional branches are to be established shall be determined in accordance with any such programme as may be drawn up by the Central Government from time to time in consultation, with the Reserve Bank and the State Bank. Even though in view of S. 17 the general superintendence and direction of the affairs and business of the State Bank have been entrusted to the Central Board, S. 18 contemplates that in the discharge of its functions the State Bank shall be guided by such directions in matters of policy involving public interest as the Central Government may in consultation with the Governor of, the Reserve Bank and the Chairman of the State Bank, give to it and that if any question arises whether the direction relates to a matter of policy involving public interest, the decision of the Central Government thereon is to be, final. Section 19 deals with the composition of the Central Board. Clauses (a), (b), (c), (ca), (cb) and (e) of sub-sec. (1), sub-secs.(1A), (2) and (3A) indicate that the Central Government has been given extensive power in the matter of composition of the Central Board. Section 45 provides that no provision of law relating to the winding up of companies shall apply to the State Bank and the State Bank shall not be placed in liquidation save by order of the Central Government and in such manner as it may direct. This Section, therefore, entitled the Central Government even to liquidate the State Bank Section 49 confers power on the Central Government in consultation with the Reserve Bank to make rules to provide for all matters mentioned therein. The power given under S. 50 to the Central Board to make regulations has been made subject to the previous sanction of the Central Government. These provisions indicate that the Central Government has a deep and pervasive control over the State Bank of India. 10. A conspectus of the provisions of Act No. 23 of 1955 and Act No. 5 of 1970 read with the meanings of the term “under” referred to above leaves no manner of doubt that the State Bank of India and the nationalised banks are clearly establishments under the Central Government. 5. In the present case, the learned counsel for the petitioner has drawn my attention to the list of public sector undertakings of the Government of India and IOC is one of such undertaking falling under the purview of the Ministry of Petroleum and Natural Gas. 5. In the present case, the learned counsel for the petitioner has drawn my attention to the list of public sector undertakings of the Government of India and IOC is one of such undertaking falling under the purview of the Ministry of Petroleum and Natural Gas. The IOC is a Government Company under section 617 of the Companies Act, 1956 and it wholly owned the entire Paid-up Share Capital of the Company till the year 1994-95. Even thereafter, the disinvestment is to the extent of 9% and even now 91% share holding is of the Central Government. The rules of the Corporation show that there is all pervasive control of the Ministry in the affairs of the Corporation. Therefore, this case is squarely covered by the judgment in C.V. Raman v. Management of Bank of India and another, : AIR 1988 SC 1369 ]. 6. Hence, the petition is allowed and proceedings initiated against the IOC under section 21(1) of the Act in C.R. 310 of 2007 before the learned Judicial Magistrate 1st Class, Dharmanagar, North Tripura are quashed. It is held that the petitioner-IOC is a Government owned establishment/authority/Company and is, therefore, not amenable to the provisions of this Act. 7. The criminal revision petition is disposed of. 8. Send down the lower court records forthwith.