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2018 DIGILAW 113 (ALL)

RAKESH NATH v. UNION OF INDIA

2018-01-11

SIDDHARTH

body2018
JUDGMENT Hon’ble Siddharth, J.—Heard Shri Kshitij Shailendra, learned counsel for the petitioners and Shri Pramod Kumar Pandey, leanred counsel for the respondents. 2. The petitioners have filed writ petition praying for a direction to the Development Commissioner (Handicraft), Ministry of Textiles/Chairman, New Delhi, respondent No. 3, to consider the grievances of the petitioners regarding grant of financial benefits concerning salary, allowances and arrears thereof as contained in their collective applications/representations annexed as Annexure 5 to the writ petition. 3. The learned counsel for the petitioners has argued that the Metal Handicraft Service Centre, Peetal Nagari, Rampur Road, Moradabad (MHSC in short) is an undertaking of the Government of India and it is under the Ministry of Textiles, Government of India, New Delhi and the petitioners are directly employed under the Development Commissioner (Handicraft), Ministry of Textiles/Chairman, New Delhi. They are claiming the benefit of 6th and 7th pay commission, which have not been extended to them till date, despite repeated representations to the respondent No. 3. 4. Learned counsel for the petitioners has pointed out that the benefit of 7th pay commission has been under consideration of the Ministry of Textiles and during the implementation of recommendations of 5th and 6th pay commission, it was provided by the office memorandum dated 30.8.2016, issued by the Ministry that 80 per cent of the additional costs would be borne by the Central Government. In case of bodies with no internal generation, 90 per cent of costs with adequate internal resources, the entire cost has been made by the Development Authority. 5. The learned counsel for the petitioners has pointed out that it is clear from the minutes of the meeting held on 25.4.2016 of the General Council of Metal Handicraft Service Centre, Peetal Nagari, Rampur Road, Moradabad, that all societies/autonomous bodies under the control of MSME are getting full benefit of 6th pay commission. 6. The learned counsel for the petitioners has pointed out that the office memorandum dated 30th September, 2008 of the Ministry of Finance, Department of Expenditure, wherein it has been stated that orders have been issued by the Government to the Autonomous Organizations, Statutory bodies etc., set up by the Central Government to implement the revised pay structure for the Central Government on the basis of the recommendations of 6th pay commission as accepted by the Government. He has argued that despite the orders passed in the year 2008, the petitioners have not been granted any benefit of 6th pay commission till date. 7. Shri Pramod Kumar Pandey, learned counsel for the respondents has referred to para No. 4 of the counter-affidavit stating that the Central Government does not hold entire share capital of MHSC, which has been established with the assistance of U.P. Government and UNDP. Therefore, the benefits of the 6th pay and 7th pay commission cannot be extended to the petitioners. He has further argued that the payment of salary to the petitioners and other employees of the MHSC are paid from the revenue generated by the Centre from his business activities on no profit no loss basis. Therefore, It is not feasible to implement the recommendations of 6th pay and 7th pay commission, in case of the petitioners, more so, when due to the competition in the market and reduction in business, the generation of revenue has fallen. However, the learned counsel for the respondents has pointed out in para No. 18 of the counter-affidavit, wherein the averment has been made that the respondent No. 3, Development Commissioner (Handicraft), Ministry of Textiles, New Delhi, who is Chairman of the General Council of MHSC, is making all efforts to redress the all grievances of the petitioners. He further contended that MHSC is not covered under the definition of “State” under Article 12 of the Constitution of India. 8. The learned counsel for the petitioners has relied upon the judgement in the case of K.K. Saksena v. International Commission on Irrigation and Drainage and others, (2015) 4 SCC 670 , in support of his contention that the MHSC does not fall within the definition of Article 12 of the Constitution of India is incorrect. The MHSC is a society registered under the Societies Registration Act, 1867, the same is functioning under the administrative control of the Development Commissioner (Handicraft), Ministry of Textiles, Government of India. It was set up by the Government of India with technical and financial support of United Nations Development Programme (UNDP) and the State Government. 9. The MHSC is a society registered under the Societies Registration Act, 1867, the same is functioning under the administrative control of the Development Commissioner (Handicraft), Ministry of Textiles, Government of India. It was set up by the Government of India with technical and financial support of United Nations Development Programme (UNDP) and the State Government. 9. The learned counsel for the respondents has referred to the judgement of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and others, (2002) 5 SCC 111 , wherein it has been held that if it is found that the control of the Government is merely regulatory, whether under statute or otherwise, it would not serve to make body a State. The contention of the learned counsel for the respondents is that the control of the Government of India over the MHSC is only regulatory in nature and therefore, it is not a “State” and amenable to the jurisdiction of this Court under Article 226 of the Constitution of India. 10. The learned counsel for the petitioners has pointed out to a notification dated 4th March, 2014 issued by the Managing Director of MHSC annexed as Annexure RA-2 to the rejoinder-affidavit, wherein the constitution of the Metal Handicraft Service Centre (MHSC), Moradabad has been given. Its General Council includes all the members, who are State/Central Government employees. He has further pointed out in Annexure RA-3, a letter dated 16th October, 2015 sent by the Government of India, Ministry of Textiles, New Delhi to the Joint Secretary, Ministry of Textiles, New Delhi. It has been provided in paragraph No. 2 of the aforesaid letter that on the proposal submitted by the MHSC to train 7650 trainees, assistance of Rs. 7.55 crores have been provided and in paragraph No. 3, it has been further stated that the Ministry of Textiles has decided to discontinue both the trainings due to major policy decisions of the Ministry of Textiles. Lastly, he has pointed out to Annexure RA-5, the order dated 28th of April, 2017, which states that on the basis of the recommendation of the Departmental Promotion Committee, Officiating General Manager, Metal Handicrafts Service Centre is promoted to the post of General Manager at MHSC, Moradabad on regular basis. Lastly, he has pointed out to Annexure RA-5, the order dated 28th of April, 2017, which states that on the basis of the recommendation of the Departmental Promotion Committee, Officiating General Manager, Metal Handicrafts Service Centre is promoted to the post of General Manager at MHSC, Moradabad on regular basis. The learned counsel for the petitioners has pointed out that this order has been issued by the Government of India, Ministry of Textiles and, therefore, it is clear that the General Manager of the MHSC is appointed by the Government of India directly. 11. In view of the discussion above, it is clear that the object of the respondent No. 2, Metal Handicrafts Service Centre, functioning under the Ministry of Textiles, New Delhi is to provide necessary skill for up-gradation and technical service to Artisans, Manufactures and Exporters located in and around Moradabad as well as sophisticated service to the exporters of art metal wares 1986, and intended to be National Level Institute for Testing, Metal Finishing and Allied Process of art metal wares. 12. A bare perusal of array of parties and the relief claimed in the writ petitions would reveal that the mandamus has been sought against the respondent No. 3 i.e. Development Commissioner (Handicraft), Ministry Textiles/Chariman, R.K. Puran, West Block-7, New Delhi, who is an authority of Ministry of Textiles Government of India i.e. respondent No. 1. 13. In so far as the MHSC is concerned, it is Society registered as a Government of India Society under the Societies Registration Act, 1860 and the same is functioning under the administrative control of the Development Commissioner (Handicraft), Ministry Textiles, Government of India. It was set up by the Government of India with technical and financial support of UNDP and the State Government of U.P. 14. For deciding the issue raised, the Apex Court’s observation in the case of K.K. Saksena (supra) are required to be adverted to, “33. In this context, when we scan through the provisions of Article 12 of the Constitution, as per the definition contained therein, the “State” includes the Government and Parliament of India and the Government and legislature of each State as well as “all local or other authorities within the territory of India or under the control of the Government of India”. In this context, when we scan through the provisions of Article 12 of the Constitution, as per the definition contained therein, the “State” includes the Government and Parliament of India and the Government and legislature of each State as well as “all local or other authorities within the territory of India or under the control of the Government of India”. It is in this context the question as to which body would qualify as “other authority” has come up for consideration before this Court ever since, and the test/principles which are to be applied for ascertaining as to whether a particular body can be treated as “other authority” or not have already been noted above. If such an authority violates the fundamental right or other legal rights of any person or citizen (as the case may be), a writ petition can be filed under Article 226 of the Constitution invoking the extraordinary jurisdiction of the High Court and seeking appropriate direction, order or writ. However, under Article 226 of the Constitution, the power of the High Court is not limited to the Government or authority which qualifies to be “State” under Article 12. Power is extended to issue directions, orders or writs “to any person or authority”. Again, this power of issuing directions, orders or writs is not limited to enforcement of fundamental rights conferred by Part III, but also “for any other purpose”. Thus, power of the High Court takes within its sweep more “authorities” than stipulated in Article 12 and the subject-matter which can be dealt with under this article is also wider in scope. 34. In this context, the first question which arises is as to what meaning is tobe assigned to the expression “any person or authority”. By a catena of judgments rendered by this Court, it now stands well grounded that the term “authority” used in Article 226 has to receive wider meaning than the same very term used in Article 12 of the Constitution. This was so held in Anadi Mukta Sadguru. In that case, dispute arose between the Trust which was managing and running science college and teachers of the said college. It pertained to payment of certain employment related benefits like basic pay, etc. The matter was referred to the Chancellor of Gujarat University for his decision. This was so held in Anadi Mukta Sadguru. In that case, dispute arose between the Trust which was managing and running science college and teachers of the said college. It pertained to payment of certain employment related benefits like basic pay, etc. The matter was referred to the Chancellor of Gujarat University for his decision. The Chancellor passed an award, which was accepted by the University as well as the State Government and a direction was issued to all affiliated college to pay their teachers in terms of the said award. However, the aforesaid Trust running the science college did not implement the award. Teachers filed the writ petition seeking mandamus and direction to the Trust to pay them their dues of salary, allowances, provident fund and gratuity in accordance therewith. It is in this context an issue arose as to whether the writ petition under Article 226 of the Constitution was maintainable against the said which was admittedly not a statutory body or authority under Article 12 of the Constitution as it was a private Trust running an educational institution. The High Court held that the writ petition was maintainable and the said view was upheld by this Court in the aforesaid judgment. 35. The discussion which is relevant for our purposes is contained in paras 15 to 20. However, we would like to reproduce paras 15, 17 and 20, which read as under: (Anadi Mukta Sadguru Case, SCC pp.698-700). “15. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. If has to be appreciated that the appellant Trust was managing the affiliated college to which public money is paid as Government aid. Public money paid as Government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like Government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating university. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. So are the service conditions of the academic staff. The aided institutions like Government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating university. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super added protection by University decisions creating a legal right duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party. 17. There, however, the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty. The ‘’public authority’ for them means everybody which is created by statute- and whose powers and duties are defined by statute. So Government departments, local authorities, police authorities, and statutory undertakings and corporations, are all ‘’public authorities’. But there is no such limitation for our High Courts to issue the writ ‘in the nature of mandamus’. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to 'any person or authority’. It can be issued ’for the enforcement of any of the fundamental rights and for any other purpose’. 20. The term ‘’authority’ used in Article 226, in the context, must receive a liberal meaning like the term in Article 12, Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32, Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words ‘’any person or authority’ used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owned by the person or authority to the affected party. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owned by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied.” 36. In para 15 of Anadi Mukta Sadguru case, the Court spelled out two exceptions to the writ of mandamus viz. (i) if the rights are purely of a private character, no mandamus can issue; and (ii) if the management of the college is purely a private body “with no public duty”, mandamus will not lie. The Court clarified that since the Trust in the said case was an aiding institution, because of this reason, it discharges public function, like Government institution, by way of imparting education to students, more particularly when rules and regulations of the affiliating university are applicable to such an institution, being an aided institution. In such a situation, held the Court, the service conditions of academic staff were not purely of a private character as the staff had super -aided protection by university’s decision creating a legal right and duty relationship between the staff and the management. 37. Further, the Court explained in para 20 in Anadi Sadguru case that the term “authority” used in Article 226, in the context, would receive a liberal meaning unlike the term in Article 12, inasmuch as Article 12 was relevant only for the purpose of enforcement of fundamental rights under Article 31, whereas Article 226 confers power on the High Courts to issue writs not only for enforcement of fundamental rights but also non-fundamental rights. What is relevant is the dicta of the Court that the term “authority” appearing in Article 226 of the Constitution would cover any other person or body performing public duty. The guiding factor, therefore, is the nature of duty imposed on such a body, public duty to make it exigible to Article 226. 38. In K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engg., this Court again emphasized that : (SCC p.572, para 4) “4.... The guiding factor, therefore, is the nature of duty imposed on such a body, public duty to make it exigible to Article 226. 38. In K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engg., this Court again emphasized that : (SCC p.572, para 4) “4.... when there is an interest created by the Government in an institution to impart education, which is a fundamental right of the citizens, the teachers who impart the education get an element of public interest in performance of their duties. In such a situation, remedy provided under Article 226 would be available to the teachers. The aforesaid two cases pertain to educational institutions and the function of imparting education was treated as the performance of public duty, that too by those bodies where the aided institutions were discharging the said functions like Government institutions and the interest was created by the Government in such institutions to impart education. 39. In G. Bassi Reddy v. International Crops Research Institute, the Court was concerned with the nature of function performed by a research institute. The Court was to examine if the function performed by such research institute would be public function or public duty. Answering the question in the negative in the said case, the Court made the following pertinent observations: (SCC p.237, para 28). “28..... Although, it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity. The primary acivityof ICRISAT is to conduct research and training programmes in the sphere of agriculture purely on a voluntary basis. A service voluntarily undertaken cannot be said to be a public duty. Besides ICRISAT has a role which extends beyond the territorial boundaries of India and its activities are designed to benefit people from all over the world. While the Indian public may be the beneficiary of the activities of the Institute, it certainly cannot be said that ICRISAt owes a duty to the Indian public to provide research and training facilities.” Merely because the activity of the s aid research institute enures to the benefit of the Indian public, it cannot be a guiding factor to determine the character of the Institute and bring the same within the sweep of “public function function or public duty”. The Court pointed out: (G. Bassi Reddy case, SCC p.237, page 28). “28.. In praga Tools Corpn. V. C.A. Imanual this Court construed Article 226 to hold that the High Court could issue a writ of mandamus ‘’to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest’. The Court also held that: (SCC p. 589, para 6). ‘’6... an application for mandamus will not lie for an order of reinstatement to an office whichis essentially of a private character obligations owed by a company towards its workmen or to resolve any private dispute. (See Sohan Lal v. Union of India).” 40. Somewhat more pointed and lucid discussion can be found in Federal Bank Ltd. v. Sagar Thomas, inasmuch as in that case the Court culled the categories of body/persons who would be amenable to writ jurisdiction of the High Cout. This can be found in para 18 of the said judgment, specifying eight categories, as follows: (SCC p.748). “18. From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Government); (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function. 41. In Binny Ltd. v. V. Sadasivan, the Court clarified that though writ can be issued against any private body or person, the scope of mandamus is limited to enforcement of public duty. It is the nature of duty performed by such person/body whichis the determinative factor as the Court is to enforce the said duty and the identity of authority against whom the right is sought is not relevant. Such duty, the Court clarified, can either be statutory or even otherwise, but, there has to be public law element in the action of that body. 42. Such duty, the Court clarified, can either be statutory or even otherwise, but, there has to be public law element in the action of that body. 42. Reading of the categorization given in Federal Bank Ltd., one can find that three types of private bodies can still be amenable to writ jurisdiction under Aticle 226 of the Constitution, which are mentioned at Sl. No. (vi) to (viii) in para 18 of the judgment extracted above. 43. What follows from a minute and careful reading of the aforesaid judgments of this Court is that if a person or authority is “State” within the meaning of Article 12 of the Constitution, admittedly a writ petition under Article 226 would lie against such a person or body. However, we may add that even in such cases writ would not lie to enforce private law rights. There are a catena of judgments on this aspect and it is not necessary to refer to those judgments as that is the basic principle of judicial review of an action under the administrative law. The reason is obvious. A private law is that part of a legal system which is a part of common law that involves relationship between individuals, such as law of contract or torts. Therefore, even if writ petition would be maintainable against an authority, which is “State” under Article 12 of the Constitution, before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished from private law. 44. Within a couple of years of the framing of the Constitution, this Court remarked in Election Commission of India v. Saka Venkata Rao, that administrative law in India has been shaped in the English mould. Power to issue writ or any order of direction for “any other purpose” has been held to be included in Article 226 of the Constitution with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of the King’s Bench in England. It is for this reason ordinary “private law remedies” are not enforceable through extraordinary writ jurisdiction even though brought against public authorities (see Administrative Law, 8th Edn. H.W.R. Wade and C.F. Forsyth,, p 656). It is for this reason ordinary “private law remedies” are not enforceable through extraordinary writ jurisdiction even though brought against public authorities (see Administrative Law, 8th Edn. H.W.R. Wade and C.F. Forsyth,, p 656). In a number of decisions, this Court has held that contractual and commercial obligations are enforceable only by ordinary action and not by judicial review. 45. On the other hand, even if a person or authority does not come within the sweep of Article 12 of the Constitution, but is performing public duty, writ petition can lie and writ of mandamus or appropriate writ can be issued. However, as noted in Federal Bank Ltd., such a private body should either run substantially on Sate funding or discharge public duty/positive obligation of public nature or is under liability to discharge any function under any satute, to compel it to perform such a statutory function. 15. In view of ratio laid down in the judgment K.K. Saksena (supra), it is held that the nature and extent of duty imposed on respondent No. 3 may not make it amenable to definition of “State” in strict sense, but in view of the fact that the nature and extent of public duties being discharged by the respondent No. 3 makes it amenable to jurisdiction of this Court under Article 226 of the Constitution of India. Therefore, this Court has no hesitation in directing the respondent No. 3 to consider the grievance of the petitioners, as raised by them by means of various representations, collectively attached as Annexure 5 to the writ petition, within two months from the date of production of certified copy of this order before it. 16. The writ petition is allowed to the extent stated above. There shall be no order as to costs.