Rajesh Singh v. Managing Director, National Agriculture Co-operative Marketing Federation of India Ltd.
2016-02-10
S.C.SHARMA
body2016
DigiLaw.ai
ORDER : S.C. Sharma, J. 1. Regard being had to the similar controversy involved in above cases, they have been heard analogously together with the consent of the parties and a common order is being passed in the matter. Facts of W.P. No.7725/2015 are narrated as under:- 2. The petitioner before this Court has filed this present petition being aggrieved by the termination Order dated 09/10/2015. It is an undisputed fact that the petitioner is an employee of National Agriculture Co-operative Marketing Federation of India Ltd., 3. Learned Counsel appearing for the other side has vehemently argued before this Court that a writ petition against National Agriculture Co-operative Marketing Federation of India Ltd., (NAFED) is not at all maintainable as NAFED is not a state and is not amenable to writ jurisdiction of this Court. 4. On the other hand Shri G. Patrwardhan has drawn the attention of this Court towards the order passed by this court and his contention is that earlier the writ petitions have been entertained against NAFED. This Court in the case of Premnath Gour v. Chairman NAFED and others, W.P.No.7838 of 2009 (s) has decided a dispute of driver working in NAFED, however, the point whether NAFED is a state or not was not considered. In another case i.e., Bharat Singh v. Chairman NAFED in W.P.No.12879/2010(s) again this Court has dealt with some service matter of an employee but the issue relating to maintainability of the writ petition was not considered. In W.P No. 12875/2010 in the case of R.B. Gour v. Chairman NAFED & others, a service dispute was looked into and the issue relating to maintainability of writ petition against NAFED was not considered. 5. Learned Counsel for the petitioner has also drawn the attention of this Court towards a judgment delivered in the case of Prem Shankar Pathak v. Union of India and others in W.P.No.3909/2006 (s) decided on 09/04/2015 and it was a case of National Horticulture Research Development Foundation. It is true that in the aforesaid case at some places National Agriculture Co-operative Marketing Federation of India Ltd.,has been mentioned but the fact remains it was a case relating to National Horticulture Research Development Foundation and it was certainly not a case of an employee of NAFED. 6.
It is true that in the aforesaid case at some places National Agriculture Co-operative Marketing Federation of India Ltd.,has been mentioned but the fact remains it was a case relating to National Horticulture Research Development Foundation and it was certainly not a case of an employee of NAFED. 6. Learned Counsel has also placed reliance upon a judgment delivered by the Hon'ble Supreme Court in the case of M.P. State Co-operative Dairy Federation Ltd., and another v. Rajnesh Kumar Jamindar and Ors and his contention is that in case of M.P. State Co-operative Dairy Federation Ltd., the Hon'ble Supreme Court has held that a writ petition be maintainable and has held it to be a State as contained under Article 12 of the Constitution of India. 7. On the other hand, learned Counsel appearing for the other side has drawn the attention of this Court towards a judgment delivered by Delhi High Court in the case of Sunil Rawat v. National Agriculture Co-operative Marketing Federation of India Ltd.,(NAFED) in W.P.No.8295/2015 decided on 13/10/2015 and his contention is that the learned Single Judge of Delhi High Court has held that NAFED is not a State within the meaning of Article 12 of the Constitution of India and the petition was held not to be maintainable. 8. Reliance has also been placed upon another judgment delivered by the Delhi High Court in the case of R.S. Negi v. NAFED in W.P.4950/2015 decided on 19/11/2015 wherein a similar view has been taken by the Delhi High Court, again in the case of J.S. Arneja v. NCCF reported in AIR 1995 Delhi 44, 1994 (28) DRJ 546 , in the case of Sanjay Singh v. NCCF in W.P.No.8406/2008 dated 25/07/2013 and in the case of Jogender Singh Arneja v. NCCF reported in (2000) 3 UPLBEC 2299, a similar view has been taken. 9. The Division Bench of Delhi High Court in the case of National Agriculture Co-operative Marketing Federation of India Ltd., v. NAFED Processed Food Co-operative Society Ltd., reported in 2001 (58)DRJ 799 in paragraph 20 to 28 has held as under:- 20.
9. The Division Bench of Delhi High Court in the case of National Agriculture Co-operative Marketing Federation of India Ltd., v. NAFED Processed Food Co-operative Society Ltd., reported in 2001 (58)DRJ 799 in paragraph 20 to 28 has held as under:- 20. It was submitted by the respondent, in the alternative that even assuming that NAFED does not come within the definition of "State" as per provisions of Article 12 of the Constitution of India, it cannot act arbitrarily and against all norms of service jurisprudence on the ground that it is not a "State". A statutory duty is imposed upon an authority to act in a fair and reasonable manner especially when it is dealing with essential service conditions of employees such as termination and compulsory retirement. It has been constantly held by the Supreme Court in a large number of decisions that the words "any person or authority" used in Article 226 are not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. In support of this argument learned counsel for the respondents relied upon the judgment of the Supreme Court in the case of U.P.State Cooperative Land Development Bank Ltd. v. Chandra Bhan Dubey and others. 21. In order to appreciate this contention, let us first reproduce provision of Article 226(1) of the Constitution. This Article reads as under: "226 (1): Power to High Courts to issue certain writs. Notwithstanding anything in article 32, every High Court shall have a power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, {for the enforcement of any of the rights conferred by part III and for any other purposes}. 22. As already recorded above, the main contention of the respondents is that the expression "any person" occurring in Article 226 has to be given wide meaning and it should not be restricted to person exercising sovereign or public functions or Governmental authority. We have already held that NAFED is not a State and/or instrumentality and/or agency of the State under Article 226 of the Constitution.
We have already held that NAFED is not a State and/or instrumentality and/or agency of the State under Article 226 of the Constitution. It is a society registered under the Delhi Co-operative Societies Act, 1973. The dispute between NAFED and its employees would therefore be a private dispute. It is in this light, the contention of the respondents is to be examined. The judicial trend shows court's jurisdiction will not extend to deciding such private disputes. H.M.Seervai in his book entitled 'Constitutional Law of India', Fourth Edition, Vol.2 at page 1579 has listed the following propositions: "(1). The literal construction of Article 226 could not have been intended because "it would enable any person to obtain any relief by an application under this Article..... This construction of the Article would practically abrogate the entire judicial system and the machinery set up for the administration of justice in the State." (2). There is internal evidence in Article 226 that the words "to any person" and "for any purpose" cannot be construed literally. For, whatever other power Article 226 confers on the High Courts, it undoubtedly confers the power to issue writs in the nature of habeas corpus, mandamus, prohibition, certiorari and quo warranto. But these writs cannot be issued "to any person" and "for any.....purpose". The purposes for which, and the persons to whom, these writs can be issued have long been well settled. Therefore, the power to issue writs of the nature expressly mentioned "to any person" can only mean "the power to issue such a writ to any person to whom, according to well-established principles the writ lay". And the words "for any other purpose" must mean "for any other purpose for which any of the writs would according to well-established principles issue" the word "other" being read in antithesis to "for the enforcement of fundamental rights". It is submitted that from the propositions set out in (2) above, proposition (3) must follow: (3) Orders, directions or writes are to be issued "to any person" and for "any purpose". Once the meaning of these words is ascertained with reference to writs, a different meaning cannot be given to them with reference to "orders" or "directions". Nor should this surprise us.
Once the meaning of these words is ascertained with reference to writs, a different meaning cannot be given to them with reference to "orders" or "directions". Nor should this surprise us. In England, the writs of mandamus, certiorari and prohibition were replaced by "orders" of the same name in 1938; the writ of quo warranto later by an injunction - that is, an order of the court. In India the writs of habeas corpus and mandamus were replaced by "directions" in the nature of habeas corpus and by "directions" in the nature of mandamus by section 491, Cr.P.C., and Section 45, Specific Relief Act, 1877, respectively. The words "orders" and "directions" were used to describe what at one time were called writs, and since that terminology had been in use in England and in India, all the three words have been used in Article 226 to describe well-recognised English writs. (4) Article 226 should not be construed so as to replace the ordinary remedies by way of a suit and application available to the litigant under the general law of the land." 23. This Court in the case of National Seeds Corporation Employees Union & Another v. National Seeds Corporation held that once the origin and history of the Prerogative Writs are remembered, it is clear that powers given to the High Court under Article 226 are to be exercised in accordance with the principles which govern the present writs. Therefore, the expression "any person" is to be read ejusdem generis and it cannot include private persons. Interpreting in this manner, "any person" should be the person who is discharging the public function. It may be mentioned that in the case of Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Others v. V.R.Rudani & Others, the Supreme Court even when giving liberal interpretation to the words "any person or authority" used in Article 226 and holding that these words are not to be confined only to statutory authorities and instrumentalities of the State, still covered only those under "any other person" who are performing public function. 24. No doubt in the case of U.P. Cooperative Land Development Bank Ltd (supra) the Supreme Court observed that the distinction between public function and private function was being obliterated.
24. No doubt in the case of U.P. Cooperative Land Development Bank Ltd (supra) the Supreme Court observed that the distinction between public function and private function was being obliterated. However, the court still did not extend the principle by lying down any rule of law that direction can be issued to a private person as well. Decision ultimately rested on the proposition that the persons in question were dancing to the tune of State Government and their affairs were controlled by the State Government and the respondent was "another authority" or State within the meaning of Article 12 of the Constitution of India. The authority involved was U.P. State Cooperative Land Development Bank Ltd. which was constituted under U.P. Cooperative Land Development Bank Act and it was found that affairs of the society were controlled by the State Government on the basis of which it was held that it was an instrumentality of "State". 25. No doubt some observations are made to the effect that there should not be any difference between public functions and private functions. However, no authoritative pronouncement has been made on this aspect. There was no principle enunciated in the said judgment to the effect that writ can lie against private persons or bodies doing pure commercial activity. Thus this judgment does not advance the case of the respondents inasmuch as no such principle and be deduced from this judgment to the effect that writ lies against NAFED. On the other hand, we have a recent authoritative pronouncement of the Apex Court. In the case of VST Industries Ltd. v. VST Industries Workers' Union and another reported in JT 2001 (1) SC 36, the Supreme Court held that no writ would lie against a person discharging function of private character. In this case the appellant was engaged in the manufacture and sale of cigarette which does not involve any public function. In view of the obligation cast on the appellant under Section 46 of the Factories Act, 1948 the appellant had to set up a canteen because the establishment had more than 250 workmen. This was a labour welfare device for the benefit of the work force. It was found as a fact that the appellant had complete control over the activities in respect of the canteen.
This was a labour welfare device for the benefit of the work force. It was found as a fact that the appellant had complete control over the activities in respect of the canteen. The contractor who was actually running the canteen had practically no discretion in the affairs relating to the canteen. The canteen was, therefore, taken to be a canteen run by the management itself. This, therefore, could not be said to be a public function so as to make the appellant amenable to writ jurisdiction under Article 226 of the Constitution of India. 26. Even if the writ petition is not maintainable, respondents are not remediless. The respondents have, in the writ petition, challenged the decision of NAFED in introducing Voluntary Retirement Scheme and the orders of termination issued under Clause 17(IV)(d) of the Staff Regulations providing for compulsory retirement. The respondents can raise appropriate industrial dispute. 27. Because of the view that we have taken namely, NAFED is not a "State" or other authority within the meaning of Article 12 of the Constitution of India and the writ petition filed by the respondent was not maintainable, it is not necessary to go into the other aspect of the impugned judgment whereby Orders of termination under Clause 17(IV)(d) of the Staff Regulations were set aside as arbitrary and violative of Article 14 of the Constitution. In view of the decision that the Writ petition filed by the respondents was not maintainable, observations contained in the impugned judgment on the merits of the controversy do not survive. 28. This Appeal is accordingly allowed. Impugned judgment dated 19th July, 1999 is set aside. Writ Petition No. 6239 of 1998 filed by the respondents is hereby dismissed on the ground that it is not maintainable. It is, however, once again clarified that is would be open to respondents to raise their grievances by invoking the machinery provided under the Industrial Disputes Act, 1947 or any other law. Any such dispute raised by them will be decided by the said authority on its own merit without being influenced by the judgment dated 19th July, 1999 of the learned Single Judge. In the facts of the case there will be no order as to costs. 10.
Any such dispute raised by them will be decided by the said authority on its own merit without being influenced by the judgment dated 19th July, 1999 of the learned Single Judge. In the facts of the case there will be no order as to costs. 10. In light of the judgment delivered by the Division Bench of Delhi High Court, this Court is of the considered opinion that the National Agricultural Co-operative Marketing Federation of India Ltd., is not a State or any authority within the meaning of Article 12 of the Constitution of India and the writ petition filed by the petitioner is not maintainable. 11. Resultantly, the petition itself is not maintainable. The admission is declined. Certified copy as per rules. Petition Dismissed.