Bombay High Court
Sampada W/O Sanjay Karkare vs Bombay Natural History Society ... on 1 September, 2023
Bench: A.S. Chandurkar, Vrushali V. Joshi
2023:BHC-NAG:13094-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 2831 OF 2023
(Mrs. Sampada w/o Sanjay Karkare Vs. Bombay Natural History Society & Ors.)
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's order
and Registrar's orders.
Shri Anil Mardikar, Senior Advocate with Shri Shubhankar Phadnis, Advocate for the
petitioner.
Shri K.N. Shukul, Advocate for the respondents.
CORAM : A. S. CHANDURKAR AND MRS. VRUSHALI V. JOSHI, JJ.
DATE : SEPTEMBER 1, 2023
Heard.
2] The challenge raised in the present Writ Petition is to the communication
dated 6/4/2023 issued by the Human Resources Department of the Bombay
Natural History Society - respondent no.3 thereby intimating the petitioner who
is serving as an Education Officer with the Conservation Department of the
Bombay Natural History Society - Society that her services were no longer
required by the Society and that on conclusion of the notice period of one
month, her engagement would come to an end.
3] A preliminary objection has been raised on behalf of the Society to the
maintainability of the Writ Petition on the ground that the Society is not a
"State" within the meaning of Article 12 of the Constitution of India and
therefore the present Writ Petition seeking to challenge its communication dated
6/4/2023 is not maintainable. It is submitted by Shri K.N. Shukul, learned
Counsel for the Society by referring to various documents including its
Memorandum of Association that the Society is registered as a Public Trust
under the Maharashtra Public Trusts Act, 1950 as well as the Societies
Registration Act, 1860. It is an autonomous body which meets its expenses from
the amounts received through donations, membership fees, entrance fees, etc. It
is not dependent upon any funding either by the State Government or the
Central Government. In its Governing Council, provision is made for
accommodating the Secretary to the Ministry of Scientific Research with the
Government of India as well as the Joint Secretary of the State of Maharashtra
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only if the Central Government or the State Government consents to give to the
Society a recurring grant being requested. It is submitted that no such request
for being issued any grant has been made. There is absence of deep and
pervasive State control either of the Central Government or the State
Government. The Society is not discharging any public function and hence
various tests laid down by the Hon'ble Supreme Court in Ajay Hasia and Others
Vs. Khalid Mujib Sehravardi and Others [(1981) 1 SCC 722] are not satisfied. In
addition, it is submitted that the tests prescribed by the Full Bench in its decision
in Vassudev Madkaikar and Others Vs. State of Goa [AIR 2022 BOMBAY 9] are
also not satisfied. Since the petitioner seeks enforcement of her contract of
service and the Society is not a "State" within the meaning of Article 12 of the
Constitution of India, the Writ Petition against it is not maintainable.
4] Shri Anil Mardikar, learned Senior Advocate for the petitioner in reply
submitted that the petitioner has attained the status of a permanent employee of
the Society. There is no remedy provided under the Employees Service Rules for
raising challenge to the communication impugned in the Writ Petition. In
absence of any alternate remedy being available, the petitioner has approached
this Court for challenging the communication dated 6/4/2023. Referring to the
Constitution of the Governing Council under Clause (31) of the Memorandum of
Association, it is submitted that State control has been provided for under
Clauses (d), (f) and (g) thereof. Inviting attention to the observations in
paragraphs 18 and 31 of the decision in Federal Bank Ltd. Vs. Sagar Thomas and
Others [(2003) 10 SCC 733], it is submitted that since the Society is undertaking
a public duty, a Writ of Mandamus could be issued. Reliance is also placed on the
judgment of the High Court of Madras in Dr. E. Johnson and two others Vs.
Salim Ali Centre for Ornithology and Natural History and another [2002 (4)
CTC 65] in that regard. It is thus submitted that considering the nature of
activities of the Society which are in larger public interest, the Writ Petition was
maintainable and liable to be entertained on merits.
5] Having heard the learned Counsel for the parties on the preliminary
objection, we find that the said objection deserves to be upheld. A perusal of the
Memorandum of Association indicates that the activities of the Society relate to
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promoting knowledge amongst the Members of public of natural history
particularly the study of animal and plant life. The object is to carry out research
in all branches of natural history. For carrying out such activities, the Society is
permitted to borrow or raise money in such a manner as it thinks fit including by
issuing debentures. Clause (31) of the Memorandum of Association permits the
Secretary of the Ministry of Scientific Research to be the Member of the
Governing Council. Similar is the case insofar as the State Government is
concerned. Except such nomination on the Governing Council, it is seen that
there is no other involvement of the State Government or the Central
Government in the activities of the Society. It has been asserted by the Society
that no request for any funding has been made by the Society either to the State
Government or the Central Government. Further, the nature of activities of the
Society do not indicate that the same can be termed to be the public functions as
explained by the Hon'ble Supreme Court in its decision in Ajay Hasia and Others
(supra). The Society is autonomous in its activities and there is no control
whatsoever either of the State Government or the Central Government. In
addition, as held by the Full Bench in Vassudev Madkaikar and Others (supra),
there is no element of public law involved in the activities of the Society. On the
contrary, the petitioner seeks enforcement of her service contract.
6] We therefore find that the Society cannot be said to fall within the
expression "State" as has been contemplated in the decisions relied upon by the
learned Counsel for the Society. The ratio of the decision of the High Court of
Madras in Dr. E. Johnson and two others (supra) cannot be applied to the facts
of the present case in view of various distinguishing factual aspects.
7] For the aforesaid reasons, it is held that the Writ Petition as filed seeking
to raise challenge to the communication dated 6/4/2023 to dispense with the
services of the petitioner is not maintainable. The petitioner is at liberty to avail
appropriate legal remedy in accordance with law for challenging the impugned
communication. The points raised in that regard are kept open. The ad-interim
order dated 28/4/2023 shall further continue to operate for a period of two
weeks from today. It is made clear that the observations made in this order are
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only for considering the objection with regard to tenability of the Writ Petition
and the same shall not be treated as an observation on merits of the claim.
8] The Writ Petition is disposed of as not maintainable. No costs.
(MRS. VRUSHALI V. JOSHI, J.) (A. S. CHANDURKAR, J.)
SUMIT
Signed by: Mr. Sumit Agrawal
Designation: PA To Honourable Judge
Date: 02/09/2023 16:17:00
