Sanjoy Das vs The Union Of India & Ors
2023 Latest Caselaw 304 Cal/2

                      IN THE HIGH COURT AT CALCUTTA
                        Constitutional Writ Jurisdiction
                                ORIGINAL SIDE
Present :-

THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA


                            W.P.O. 2897 of 2022

                                  Sanjoy Das
                                        vs
                           The Union of India & Ors.



For the petitioner                  :        Mr. Rupak Ghosh, Adv.
                                             Mr. Bidish Ghosh, Adv.
                                             Mr. Arindam Paul, Adv.

For the respondents                 :        Mr. Mohit Gupta, Adv.
                                             Mr. Souvik Biswas, Adv.
                                             Mr. Vikash Chopra, Adv.
                                             Mr. Sumeet Chowdhury, Adv.



Last Heard on                       :        01.02.2023.


Delivered on                        :        03.02.2023.


Moushumi Bhattacharya, J.

1. The petitioner seeks a mandamus commanding the respondents to

withdraw a decision of the National Accreditation Board for Testing and

Calibration Laboratories (NABL) communicated to the petitioner by mail on 18th

June, 2022 by which NABL withdrew the accreditation given to Industrial

Quality Controllers (Testing Laboratory). The petitioner is the Chief Executive

Officer of the said laboratory and carries on business in the name and style of

the said laboratory. The respondent no. 2/NABL is the Constituent Board of

the respondent no. 5 (Quality Council of India - QCI). The respondent nos. 3

and 4 serve under NABL. The respondent nos. 2-5 are governed under the

Department of Industrial Policy and Promotion, Ministry of Commerce and

Industry.

2. The respondent nos. 2-5 say that the writ petition is not maintainable.

The respondents take the point of the maintainability on the ground that the

NABL offers voluntary accreditation service and was established for providing

Government, Industry Associations and Industry in general with a scheme of

Conformity Assessment Body's Accreditation which involves third-party

assessment of technical competence. It is further said, through learned

counsel, that QCI is an autonomous body registered as a society under the

Societies Registration Act, 1860 which was set up by the Ministry of Commerce

and the Indian Industries represented by CII, ASSOCHAM and FICCI to operate

as a National Accreditation Body. Counsel submits that NABL does not have

any regulatory authority and the accreditation is only a voluntary act. It is

further submitted that obtaining accreditation is not a statutory requirement.

Counsel submits that grant of accreditation is not a fundamental right and

withdrawal of the same would hence not constitute violation of the

fundamental rights guaranteed under Part III of the Constitution. Counsel

further submits that NABL, while granting accreditation, is not discharging any

statutory duties.

3. Learned counsel appearing for the petitioner relies on several documents

to show that the respondent nos. 2-5 discharge public functions. Counsel

submits that QCI was formed by a Cabinet decision and has its own by-laws

which in turn controls the Boards, including NABL, which are substantially

run from funds from the Union of India. Counsel submits that the respondents

owe a positive obligation of public duty in controlling quality standards in every

sphere and are hence amenable to the writ jurisdiction of this Court.

4. The documents shown on behalf of the petitioner are relevant for

deciding the issue of maintainability of the writ petition. First, the extract of

Minutes of Meetings of Cabinet held on 9th February, 1996 shows that the

Ministry of Industry, Department of Industrial Development approved setting

up of QCI (respondent no. 5) as an autonomous body registered under the

Societies Registration Act. The Minutes further show that the Chairman of QCI

is to be nominated by the Prime Minister and the Chairman of QCI would in

turn nominate the Chairmen of the three Accreditation Boards in consultation

with the Board of QCI. The Minutes also record that a contribution of 50% of

the seed capital required for setting up of QCI will be made by the Government

and an additional Rs. 75 lakhs will be provided in the budget of the

Department of Industrial Development. The other clauses in the Minutes record

the financial contribution of the Government to QCI. The administrative control

of the Central Government in the affairs of the respondent nos. 2-5 would also

appear from the Minutes.

5. Second, the Rules and Regulations of QCI dated 20th January, 1997

shows that winding-up or dissolution of QCI and determination of its debts and

liabilities will be dealt with as determined by the Central Government.

6. Third, the General Information Brochure of NABL as amended on 5th

July, 2021 also bears testimony to fact that the NABL was set up by the

Department of Science and Technology in 1982 and derived its authority from

the Government. NABL was merged with QCI in 2016 and was envisaged as a

Constituent Board of QCI which derives its authority from the Government and

Indian Industry bodies. Further, the main objective of QCI as mentioned in the

Memorandum of Association of QCI and amended on 17th June, 2014 is to play

a pivotal role in propagating quality standards in all important spheres of

activities including education, healthcare, environment protection, governance,

social and infrastructure sectors and to lead a nationwide quality movement in

the country. The "Key Objectives" of QCI also reflects a similar nationwide

leadership role in quality control.

7. The above material leaves little doubt that the respondent nos. 2-5, more

specifically NABL and QCI, perform functions which are expressly and

necessarily public in nature. These are the repositories of ensuring and

adhering to quality control measures in all sectors of governance, industry and

environment which is evident from the Memorandum of Association of QCI.

These activities have a significant bearing in improving the quality of life and

well being of citizens of India. There is hence a clear public element in the

duties and obligations of respondent nos. 2 and 5 namely NABL and QCI

respectively.

8. Besides the above, the financial control and administrative presence of

the Central Government in both the answering respondents is clear from the

Minutes of Cabinet Meeting as well as the Memorandum. The Chairman of QCI

being nominated by the Prime Minister is a reflection of the administrative

control exercised by the concerned Ministry of the Central Government upon

the said respondents.

9. From the material shown to the Court, this Court is convinced and

accordingly holds the writ petition to be maintainable.

10. Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology; (2002) 5

SCC 111, held that the definition of 'State' in Article 12 had undergone a

radical change in recent years. The Supreme Court held that a body which has

public or statutory duties to perform for the benefit of the public and not for

private profit would come within the fold of Article 226 (Ref. Rajasthan State

Electricity Board, Jaipur vs. Mohan Lal; AIR 1967 SC 1857). Paragraph 40 of the

Report also expressed the opinion of the Supreme Court that the tests

formulated in Ajay Hasia vs. Khalid Mujib Sehravardi; (1981) 1 SCC 722, have

undergone a change and the question in each case would be whether in the

light of the cumulative facts, the body is financially, functionally and

administratively dominated by or under the control of the Government. The

control must be particular to the body and must be pervasive. In Ramkrishna

Mission vs. Kago Kunya; (2019) 16 SCC 303, the Supreme Court summarised

the jurisprudence on the subject and held that the function of an organisation

must be of a character which is closely related to the functions which are

performed by the State in its sovereign capacity and even a private body can be

amenable to writ jurisdiction if it performs public functions which are normally

expected to be performed by the State or its authorities.

11. The decisions relied on by counsel appearing for the respondents namely

Ajay Hasia and Ramana Dayaram Shetty vs. International Airport Authority of

India; (1979) 3 SCC 489 were considered in Pradeep Kumar Biswas and found

to have considerably been expanded by later decisions on the question of

amenability to writ jurisdiction. The Supreme Court held that functional tests

were necessary to assess whether the obligations and duties exercised by the

entity are of public importance and fundamental to the life of the people.

12. Chander Mohan Khanna vs. National Council of Educational Research and

Training; (1991) 4 SCC 578 is factually distinguishable from the present case

since the Supreme Court was of the view that the activities of the NCERT were

not related to governmental functions and were conducted by educationists.

Lieutenant Governor of Delhi vs. V.K. Sodhi; (2007) 15 SCC 136, is also

distinguishable on facts and the Supreme Court was of the view that issuing a

direction against the State Council of Educational Research and Training

(SCERT) would frustrate the very objective with which a society like SCERT is

created. The Supreme Court also found that SCERT was not financially or

administratively dominated by the Government.

13. In view of the above discussion, the respondent nos. 2-5 are accordingly

held to be amenable to the writ jurisdiction of this Court. WPO 2897 of 2022 is

therefore found to be maintainable and will be tested on merits.

14. On the merits, the petitioner is aggrieved by a mail of 18.6.2022 from

NABL whereby the accreditation of the petitioner's Testing Laboratory was put

under the withdrawal category. The reason for the impugned action/ threat

was that the petitioner's Conformity Assessment Body (CAB) having used a

false accreditation certification. Counsel appearing for the petitioner submits

that the impugned decision was taken in violation of the principles of natural

justice. Counsel submits that NABL did not serve copies of the report /

documents relied on by NABL in coming to the impugned decision. Counsel

urges that the petitioner had a right to be put on notice of the complaint and

the charges alleged before the impugned action taken by NABL.

15. Counsel appearing for NABL places documents to show that the

petitioner's company was using a Certificate/ Logo during the period when the

petitioner did not have NABL's accreditation. Counsel further submits that

NABL did not have any role in the complaint made against the petitioner with

reference to the questionable accreditation logo.

16. The documents in the writ petition show that petitioner had written to

NABL on 14.1.2022 with regard to the complaint bearing no. 97 of 2021

wherein the petitioner denied the basis of the complaint and that the petitioner

was keen to know the source of the complaint. The petitioner accordingly

requested NABL to share a copy of the Report and complaint to enable the

petitioner to determine the veracity of the same. The subsequent mails

exchanged between the parties reveal that NABL did not share the complaint or

the Report and instead asked the petitioner to attend a personal hearing for

NABL to take a decision in the matter. The petitioner continued to request for

the documents including the complaints and Report by way of a letter to the

Officer In-charge, Burtolla Police Station on 28.7.2022 and to NABL on

12.9.2022. The writ petition was thereafter filed on 7.11.2022.

17. The Supreme Court in T. Takano vs. Securities and Exchange Board of

India; (2022) 8 SCC 162 dwelt upon the key objectives of disclosure of

information namely reliability, fair trial, transparency and accountability. The

Supreme Court held that the purpose of disclosure of information is not only to

prevent errors in the verdict but also to fulfill the larger institutional purpose of

fair trial and transparency and proceeded to hold that there is a duty to

disclose documents which have been relied on by the Investigating Officer even

if the Investigating authority denies placing reliance on certain documents. In

essence, the entire material which may have a bearing on the decision of a

quasi-judicial authority or may influence the outcome of an adjudication

leading to award of a penalty must be disclosed to a delinquent.

18. In the present case, NABL has admittedly failed and refused to disclose

the relevant materials including the complaint and the Report to the petitioner.

This failure preceded the impugned decision to withdraw accreditation to the

petitioner's new laboratory. Therefore, the petitioner was kept in the dark at

the time of the impugned decision as to the documentary/factual basis thereof.

This means that the petitioner did not have the relevant material at his

disposal to effectively rebut the contents of the complaint and the Report which

were used against the petitioner. This was all the more necessary since NABL

came to certain unilateral findings with regard to the petitioner's alleged

fraudulent activities. The fact of a few documents being shown to the petitioner

in the personal hearing will not detract from NABL's duty to disclose all the

documents relied upon before the impugned decision was taken. T. Takano

makes it clear that the authority cannot selectively choose to suppress

documents which would have a bearing on fair trial. NABL in this case has not

disclosed relevant documents to the petitioner before issuing the impugned

mail of 18.6.2022. The failure to supply the material assumes significance by

reason of the withdrawal of accreditation facilities to the petitioner. NABL has

used its monopoly in the field to the detriment of the petitioner.

19. This Court is hence of the view that the impugned communication

cannot withstand the test and criteria laid down by the Supreme Court to

preserve the principles of natural justice. WPO 2897 of 2022 is accordingly

allowed and disposed of by quashing the impugned communication dated

18.6.2022 and directing the respondent National Accreditation Board for

Testing and Calibration Laboratories (NABL) to furnish all relevant materials to

the petitioner with regard to the impugned decision and to call the petitioner

for a fresh hearing in the matter after serving of the documents to the

petitioner. The entire exercise shall be completed within a period of 4 weeks

from the date of this judgment.

Urgent photostat certified copies of this judgment, if applied for, be

supplied to the parties upon fulfillment of requisite formalities.

(Moushumi Bhattacharya, J.)