Sanjay Gupta (Dr.) vs Dr. Shroffs Charity Eye Hospital
1999 Latest Caselaw 530 Del

ORDER

K. Ramamoorthy, J.

1. The petitioners have prayed for the following reliefs in the writ petition against the respondent:-

a) issue a writ of certiorari quashing the clause whereby the management has reserved the right to terminate the services of its employees by giving one month's notice simpliciter in the service conditions of its employees;

b) issue a writ of mandamus thereby directing the respondent not to alter the service conditions of the petitioners, unilaterally to the prejudice of the petitioners;

c) issue a writ of mandamus to the respondent directing them to dispense with the unfair practice of keeping their employees under contract for many years without regularisation;

d) to issue of writ of mandamus directing the respondent to regularise the services of the petitioner No. 2."

2. The case of the petitioners is that the respondent had bracketed the services in an arbitrary fashion and the respondent is amenable to writ jurisdiction of this court, though a private organisation.

3. The respondent had taken the stand that the writ is not maintainable and the respondent had not acted in accordance with the terms of the appointment.

4. The learned counsel for the petitioners, Mr.G.D. Gupta, and the senior counsel for the respondent, Mr Raj Birbal, made elaborate submissions both on the maintainability and on the merits. The main issue would be: Whether the writ is competent?

5. It is stated in paragraphs 4 & 5 of the writ petition:

"That the respondent is a Charitable Hospital formed in the year 1914 to provide best medical care to all the patients without any discrimination by the qualified ad dedicated doctors. The focus of this hospital had been on the poorest of the poor and the hospital has been doing yeoman service for the care of the under privilege segments of the society. Funds were collected from the Government and the Public by donations for charity work. Land was allotted to the Trust by the State free of cost, on lease for perpetuity. It was categorically held in the lease deed that the land could not be sub-let, sold, assigned or transferred and could never be used for any commercial purpose for any time.

That the respondent trust was created to provide service to the community at large. The functions of the hospital are of Public importance and related to governmental functions. No immovable property of the hospital can be disposed of in any manner whatso ever without the approval of the Government. The entire property of the hospital is vested in the Stated. The MCD and NDMC nomi nees are ex-officio Trustees of the Board of Trustees of the respondent hospital. The power to supervise and to take remedial steps to correct mismanagement, abuse of power or incompetence to exercise the power are incidental to their constitutional powers. The hospital is running on the recurring grants given by the Government every year. The accounts of the hospital are audited by the auditors approved by the Government. The government oper ates behind a corporate veil, carrying out the governmental activity and the governmental functions of vital public impor tance through the respondents. The activities of the respondents are of great importance to public interest, concern and welfare, and are activities of the nature carried on by a modern state and particularly a modern welfare state."

6. It is stated in paragraph 7.7 of the writ petition that Eicher Group of Companies have taken over the Trust and the very character of the Trust has been completely destroyed by the persons who more managing the Trust. It is stated in the writ petition that challenging the appointment of nominees of Eicher Group of Companies as Board of Trustees, a suit No. 7992/97 is pending in this Court. It is also stated that the Trust, Hospital, is functioning on the basis of a decree passed by the learned Additional District Judge in a suit under Section 92 of the CPC and the decree is filed as Annexure, p-4 to the writ petition.

7. In the counter-affidavit, it is stated that the respondent, Hospital, was receiving a nominal annual grant of Rs.1,42,500/- from NDMC and from 1.4.1996 no grant is being received from NDMC. Therefore, according to the respondent, Hospital, at all by any governmental authority and the writ is not maintainable.

8. The main ground on which the learned counsel for the petitioner, Mr. G.D. Gupta, submitted with reference to the point relating to the maintainability, was that the land on which the Hospital is housed was allotted by the Government, and, therefore, the respondent, Hospital, is amenable to the writ jurisdiction. It was also submitted by Mr. G.D. Gupta, the learned counsel for the petitioners, that the respondent, Hospital, is performing a public duty, and, therefore, it is amenable to the writ jurisdiction.

9. The principles with reference to the scope of jurisdiction of this court under Article 226 of he Constitution of India have been laid down by a Full Bench of this court in "M/s. Sangh Technologies Pvt. Limited Vs. Union of India & Others", . The petitioners do not satisfy the principles laid down by the Full Bench of this court would apply to the facts of this case. The respondent is a body governed by the provisions of the decree passed by the learned Additional District Judge. Whether that body is functioning in accordance with the terms of the decree is subject matter of suit No. 7992/97 in this court.

10. The Full Bench in "M/s. Sanghi Technologies Pvt. Limited Vs. Union of India & Others", held:

"How then to find out if a person or body falls within the ambit of "other authority" is the prime question.

decipherable test or significant criteria to identify "other authority" was laid down till the decision in R.D. Shetty Vs. International Airport Authority of India, came, where some tests were evolved. In some Pra-

kash Rekhi Vs. Union of India, , the court, besides others, referred and relied on two earlier pronouncement of the Constitution Benches on the ampli-

tude of "other authorities in Article 12 and came to the conclu sion that "other authorities....under the control of the Government of India in Article 12 is comprehensive enough to take care of part III without unduly stretching the meaning of 'the State' to rope in whatever any autonomous body which has some nexus with Government". The Supreme Court analysed its earlier decision in Airport Authority's case , and called out the following tests to decide whether a company or society or other authority is a State for the purpose of this Article:

(i) If the entire share capital of the Corporation is held by the Government, it would go a long way towards indicating that the Corporation is an instrumentality or agency of the Government.

(ii) existence of deep and pervasive control of the State may offer an indication that the Corporation is a State agency or instrumentality:

(iii) If the financial assistance by the Government is so much as to meet almost entire expenditure of the Corporation, it would be some indication of the same being impregnated with Governmental Character;

(iv) monopoly status of a Corporation may be another indication of its being a State.

(v) if the functions of the Corporation are of public importance and closely related to governmental functions, it would be rele vant factor i classifying the Corporation as an instrumentality or agency of the Government;

(vi) specifically, if a department of Government is transferred to a Corporation, it would be a strong factor supportive of its inference of the Corporation being an instrumentality or agency of the Government."

11. The petitioners have not understood the concept of public duty. In a democratic polity like ours, all citizens have to participate in the governance of the State and in a way every citizen is expected to act for the public good. In order to bring the organisation to be amenable to writ jurisdiction, it should be shown to be performing a public duty in the sense in which it is understood. Running a hospital is held to be an industry by the supreme Court of India. The organisation running the hospital, therefore, cannot be said to be performing a public duty so as to make it amenable to the writ jurisdiction. That is settled position and that is what is considered by the Full Bench of this Court. In my view, the respondent is not amenable to writ jurisdiction.

12. In this view, I do not want to go into the rival contentions of the parties on the merits. It shall be open to the petitioners to have recourse to any other remedy open to them in law. The writ petition, accordingly, stands dismissed.

13. There shall be no order as to costs.