Sh. Ajay Bhatia vs Government Of Nct Of Delhi & Ors
2010 Latest Caselaw 2559 Del

               *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C) 3216/1999

%                                                Date of decision: 13th May, 2010

SH. AJAY BHATIA                                                     ..... Petitioner
                             Through: Petitioner in person.

                                        Versus

GOVERNMENT OF NCT OF DELHI & ORS.               ..... Respondents
                 Through: Ms. Avnish Ahlawat with Ms. Latika
                          Choudhary, & Ms. Simran, Advocates
                          for R-1.
                          Mr. Amit Bhasin, Advocate for R-2.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.      Whether reporters of Local papers may
        be allowed to see the judgment?                 Yes

2.      To be referred to the reporter or not?                Yes

3.      Whether the judgment should be reported               Yes
        in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The maintainability of a writ petition against the Indraprastha Medical

Corporation Ltd. (IMCL) operating Apollo Hospital at Sarita Vihar, New Delhi, at

the instance of its dismissed employee is for consideration. The petitioner was

appointed and working as the Housing Keeping Supervisor with the hospital. His

services were terminated on 5th January, 1999 under Rule 33 of the Service Rules

of the hospital, for the misconduct of absence without leave for more than eight

consecutive days without sufficient cause. Departmental appeal preferred by the

petitioner in accordance with the Rules also did not meet with any success.

Aggrieved therefrom, the present petition has been filed claiming the relief of

reinstatement with all back wages, continuity in service etc.

2. Notice of the petition was issued to the Government of NCT of Delhi

impleaded as respondent no.1 and to the hospital and its various officials

impleaded as respondents no. 2 to 4. It was the contention of the senior counsel for

the hospital as far back as on 11th October, 2000 that the IMCL is not a State

within the meaning of Article 12 of the Constitution and the writ petition was not

maintainable. Objection to the same effect was also taken in the counter affidavit.

Though the petitioner had filed an application for interim relief claiming

subsistence allowance but the application was dismissed on 22nd April, 2002. Rule

was issued in the petition on 22nd April, 2002. On 7th December, 2007 it was

ordered that arguments will be heard first on the aspect of maintainability of the

petition.

3. The respondent hospital has filed an additional counter affidavit also with

respect to the constitution of the IMCL. The respondent no.1 Government of NCT

of Delhi has also filed a short counter affidavit pleading that IMCL is a separate

legal entity and is a company incorporated under the Companies Act, wherein the

Government of NCT of Delhi also has a share; the company is running and

managed by the Board of Directors elected by the shareholders; the Chief

Secretary of Government of NCT of Delhi is the Chairman of the company and

the Government of NCT of Delhi independently de hors, its shareholding has no

control over the working of the company; the company engages officials and staff

as per its own Rules and Regulations and the staff engaged by the company are

employees of the company and have nothing to do with the Government of NCT

of Delhi. It is further pleaded that the Government of NCT of Delhi is entitled to

exercise its rights only as a shareholder in the company and has no supervisory

rights over the company.

4. The petitioner appearing in person and the counsel for the Government of

NCT of Delhi and the counsel for the respondent hospital have been heard on the

aspect of maintainability.

5. The petitioner, besides relying on the contents of his pleadings has drawn

special attention to Ajay Hasia and Ors. Vs. Khalid Mujib Sehravardi AIR 1981

SC 487 and to the recent judgment of the Division Bench of this Court in a writ

petition issuing directions to the hospital for meting out free treatment. He further

contends that the Government has given 15 acres of land to the IMCL for Rs.1/-

only and also contributed Rs.38 crores in construction of the hospital building. He

urges that because the company is running public functions, directions for meting

out free treatment were issued by the Division Bench. It is contended that the writ

would lie on that ground alone.

6. The counsel for the hospital has informed that the judgment dated 22nd

September, 2009 of the Division Bench referred to by the petitioner being W.P.(C)

No.5410/1997 titled All India Lawyers' Union (Delhi Unit) Vs. Government of

NCT of Delhi is in appeal before the Supreme Court. He relies solely on P.B.

Ghayalod Vs.M/s Maruti Udyog Ltd. AIR 1992 Delhi 145 wherein a Division

Bench of this Court held a writ petition, at the instance of an employee of Maruti

Udyog Ltd., to be not maintainable. The counsel further urges that the Government

of NCT of Delhi is not the only shareholder of the company. He further contends

that the running of a hospital is neither a public function nor is the company in the

position of a monopoly. He thus contends that the writ does not lie against the

respondent hospital.

7. The counsel for the Government of NCT of Delhi has drawn attention to

the letter dated 23rd May, 1996 of appointment of the petitioner whereunder the

petitioner is governed by the Rules in accordance wherewith his services have

been terminated. It is contended that the petitioner has available to him the

remedies of the Civil Court or the Labour Court, but no writ under the Article 226

lies.

8. The facts which emerge are that the President of India acting through the

Lt. Governor of National Capital Territory of Delhi has granted a lease of land

where the hospital is situated, to the company for the purposes of establishing a

Multi Specialty Hospital at a rent of Rs.1/- p.m. The company under the said lease

has agreed to admit free of charge such patients as may be recommended by the

Lt. Governor of National Capital Territory of Delhi or any other officer authorized

in this behalf up to 1/3rd of the bed strength. The company is a joint venture

company in terms of an agreement dated 11th March, 1988 between the Apollo

Hospital Enterprise Ltd. and the President of India through the Lt. Governor of

Delhi acting as the Administrator of Delhi. As per the additional affidavit filed by

the hospital, the Government of NCT of Delhi holds 26% of the share capital of

the company, the Apollo Hospital Group holds 25% and the remaining share

capital is held by approximately 20,000 shareholders including foreign investors.

As per the Articles of Association of Company, the Government of NCT of Delhi,

Apollo Hospital Group each are entitled to nominate 1/3rd of the total number of

Directors besides two Directors to be nominated by the foreign investors and the

remaining Directors to be nominated by the Financial Institutions. Out of the 13

Directors, four are stated to be nominees of Government of NCT of Delhi, four of

Apollo Hospital Group including the Managing Director, two of foreign investors

and two from the public shareholders and one nominee Director represents the

Financial Institutions.

9. The Division Bench of this Court in Maruti Udyog (supra) case in which

the Government of India was holding 60% share and Suzuki Motor Co. having

40% share held on the basis of documents in that case that the Government could

not take any major policy decision without prior approval of the Suzuki Motor Co.

It was also found that the Government of India was not the only source of

financing of the company. It was further found that the company did not enjoy

monopoly status in the business it was carrying on. For the said reasons Maruti

Udyog was not held to be instrumentality of the State within the meaning of

Article 12 of the Constitution and writ was held not maintainable against it. The

other reasons which prevailed with the Division Bench were that a substantial part

of shareholding belonged to a foreign company, the Board of Directors practically

had full control over the management of affairs of the company and it was held

not to be in public interest and in the interest of the economy of the country to

subject such foreign collaborators to the rigours of Article 14 by calling these joint

ventures as instrumentalities of the State. The said judgment would apply on all

fours to the facts of the present case also.

10. The Supreme Court in Federal Bank Ltd. Vs. Sagar Thomas AIR 2003 SC

4325 held that a private company carrying on business cannot be termed as an

institution or company carrying on statutory or public duty; a private body or a

person may be amenable to writ jurisdiction only where it may become necessary

to compel such body to enforce any statutory obligations or such obligations of

public nature casting positive obligation upon it. Such conditions were found to

be lacking in case of a private company carrying on commercial activity of

banking. It was further held that merely because regulatory provisions had been

made to ensure that activity is carried on by a private company within a discipline

neither confers such status on the company nor puts any obligation upon it which

may be enforced through issue of a writ under Article 226 of the Constitution.

The dismissed employee of the Bank, in this case, was not found to be enforcing

any statutory duty on the part of the Bank.

11. A Division Bench of this Court in S.C. Sharma Vs. U.O.I.

MANU/DE/2837/2007 also held that a writ of mandamus or the remedy under

Article 226 is pre-eminently a public law remedy and is not generally available as

a remedy against private wrongs - it is used for enforcement of various rights of

the public - the scope of mandamus is determined by the nature of the duty to be

enforced rather than the identity of the authority against whom it is sought - if the

private body is discharging a public function and denial of any right is in

connection with public duty imposed on such body, public law remedy can be

enforced - public law element in the action is essential. The decision to terminate

services of employee was held not to have any element of public policy; it was

held to be a matter of contract in which principles of judicial review in any case

has limited application.

12. Thus the question is not whether writ remedy lies against the IMCL or the

hospital; the said remedy does not lie in the facts of the present case.

13. The judgment in All India Lawyers' Union (supra) case has been examined

to see whether the same, in any way, affects the earlier judgment in Maruti Udyog

case. It is not found to be so. In All India Lawyers' Union case the petitioner was

seeking enforcement of the terms imposed by the Government of NCT of Delhi

while granting lease of land to the company/hospital at the rate of Rs.1/- p.m.

Though the company and the hospital were respondents in the said writ petition

but in the judgment there is no discussion as to the maintainability of the writ

petition. The writ petition was certainly maintainable against the Government of

NCT of Delhi seeking directions against it to enforce the lease terms. The

company/hospital was impleaded merely as necessary or proper party. Merely

because directions were ultimately issued against the hospital for the reason of the

Government of NCT of Delhi having failed to enforce the lease terms would not

imply that the writ lies against the company/hospital. In fact, the judgment notices

that the matter could also be considered in public interest. Moreover, in that case

a public duty imposed on the Hospital was being enforced.

14. The judgment of the Supreme Court in Ajay Hasia (supra) to which special

attention was drawn by the petitioner has been considered in the Maruti Udyog

case. The petitioner in his pleading has also referred to Som Prakash Rekhi Vs.

Union of India AIR 1981 SC 212 and Ramana Dayaram Shetty v. International

Airport Authority of India AIR 1979 SC 1628 which have also been considered in

the Maruti Udyog case.

15. The matter being fully covered by the judgments aforesaid, the writ petition

is held to be not maintainable and is dismissed as such. The petitioner shall

however be at liberty to avail his remedies, if any, before an appropriate fora.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 13th May, 2010 Pp (Corrected and released on 25th May, 2010)