Anil Dutta Mishra vs Gandhi Smarak Sangrahalaya ...
2013 Latest Caselaw 3765 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                           Date of decision: August 27, 2013
+                            LPA No. 626/2013

       ANIL DUTTA MISHRA                                     ..... Appellant
                Represented by:            Mr.B.P.Patil, Senior Advocate with
                                           Mr.Purushottam Sharma Tripathi,
                                           Mr.Ravi       Chandra        Prakash,
                                           Mr.Mukesh Kumar Singh, Ms.Filza
                                           Moonis, Advocates

                             versus

       GANDHI SMARAK SANGRAHALAYA SAMITI & ORS
                                          ..... Respondent
                        Represented by:    Mr.Ravinder Aggarwal, Advocate
                                           with Mr.M.P.Singh, Advocate

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V.KAMESWAR RAO

V.KAMESWAR RAO, J. (Oral)

1. This appeal has been filed challenging the order of the learned Single Judge dated July 17, 2013 in WP(C) No.13051/2009 and CM Nos. 14016/2009 and 17010/2012 whereby the learned Single Judge has dismissed the writ petition filed by the appellant as not being maintainable.

2. The challenge in the writ petition was inter alia to the orders passed by the respondent Nos.1,2& 4 compulsorily retiring the appellants from service. The respondent No.1 is Gandhi

Smarak Sangrahalaya Samiti.

3. This Samiti is registered under the Societies Registration Act, 1860 in the year 1965. The objects of the society and other functions have been laid down in the Memorandum of Association and Rules and Regulations.

4. The Department of Culture, Union of India which had filed an affidavit in the writ petition has taken a stand that it had given one time grant of `10 crores to the respondent No.2 which is National Gandhi Museum, which is managed by the Samiti. It is also the stand of the Union of India that it is not in the management and control of the respondent No.2.

5. The learned Single Judge was of the view that a writ petition lies against the Union of India or the State Government or a body which is a state or instrumentality of State as per Article 12 of the Constitution of India. He further holds that even against a private body a writ petition will lie but that too in those cases wherein issue arises of compliance of certain welfare legislations or equally important legislatives by the private body.

6. The issue whether an organization is a state or its agency or instrumentality of State within the meaning of Article 12 of the Constitution of India, to make a writ petition maintainable under Article 226 of the Constitution of India has come up for consideration before the Supreme Court and this Court, on many

occasions. One of the earliest judgment of the Supreme Court is reported as 1979 (3) SCC 489 Ramana Dayaram Shetty v. International Airport Authroity of India wherein the Supreme Court has propounded tests for determining, as to when the corporation will be said to be an instrumentality or agency of the Government. The aforesaid judgment of the Supreme Court was followed by the judgment reported in 1981 (1) SCC 722 Ajay Hasia v. Khalid Mujib Sehravardi wherein the Supreme Court noted with approval the ratio in Ramana Dayaram Shetty‟s case (supra) and wherein the Supreme Court laid down the following tests:

"(1) One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. (2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. (3) It may also be a relevant factor .. whether the corporation enjoys monopoly status which is State- conferred or State-protected (4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality.

(5) if the functions or the corporation are or public importance and closely related to governmental functions,

it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. (6) 'Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference' of the corporation being an instrumentality or agency of Government. "

7. The Supreme Court in the judgment reported as 2002 (5) SCC 111 Pradeep Kumar Biswas v. Indian Institute of Chemical Biology decided by a 7 Judge Bench wherein the majority judgment considered a catena of judgements on the point has ultimately held as under:-

"40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia (supra) are not a rigid set of principles so that if a body falls within any one of them it mast ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be

--whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State."

8. Further the Supreme Court in a judgment reported in 2003 (10) SCC 733 Federal Bank Ltd. v. Sagar Thomas & Ors. (noted by the learned Single Judge also) has held in para 18 and 31 as under:

"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 (Govt); (ii) 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 (viii) a person or a body under liability to discharge any function under any Statute, to compel it to perform such a statutory function.

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31. The other case which has been heavily relied upon is Andi Mukta. It is no doubt held that a Mandamus can be issued to any person or authority performing public duty, owing positive obligation to the affected party. The writ petition was held to be maintainable since the teacher whose services were terminated by the institution was affiliated to the university and was governed by the Ordinances, casting certain obligations which it owed to that petitioner. But it is not the case here. Our attention has been drawn by the learned counsel for the appellant to paragraphs 12, 13 and 21 of the decision (Andi Mukta) to indicate that even according to this case no writ would lie against the private body except where it has some obligation to discharge which is statutory or of public character."

9. Recently the Supreme Court in the case reported as Jatya Pal Singh and Others v. Union of India and Others, 2013 (6) SCC 452 dealing with 10 writ petitions filed by the former employees of Videsh Sanchar Nigam Ltd. has held as under:

"49. In our opinion, the functions performed by VSNL/TCL examined on the touchstone of the aforesaid factors cannot be declared to be the performance of a public function. The State has divested its control by transferring the functions performed by OCS prior to 1986 on VSNL/TCL.

50. Dr. Chauhan had also relied on Binny Ltd. wherein this Court reiterated the observations made by this Court in Dwarkanath vs. ITO. It was observed that : (Binny Ltd case, SCC pp. 665-66 para 11) "11....... It is difficult to draw a line between the public functions and private functions when it is being discharged by a purely private authority. A body is performing a "public function" when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest."

51. This Court also quoted with approval the Commentary on Judicial Review of Administrative Action (5th Edn.) by de Smith, Woolf and Jowell in Chapter 3 para 0.24 therein it has been stated as follows : (Binny Ltd. Case, SCC p. 666, para 11 ) "A body is performing a "public function" when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest.

Public functions need not be the exclusive domain of the state. Charities, self-regulatory organizations and other nominally private institutions (such as universities, the Stock Exchange, Lloyd‟s of London, churches) may in reality also perform some types of public function. As Sir John Donaldson M.R. urged, it is important for the courts to "recognize the

realities of executive power" and not allow "their vision to be clouded by the subtlety and sometimes complexity of the way in which it can be exerted." Non-governmental bodies such as these are just as capable of abusing their powers as is government."

52. These observations make it abundantly clear that in order for it to be held that the body is performing a public function, the appellant would have to prove that the body seeks to achieve some collective benefit for the public or a section of public and accepted by the public as having authority to do so.

53. In the present case, as noticed earlier, all telecom operators are providing commercial service for commercial considerations. Such an activity in substance is no different from the activities of a bookshop selling books. It would be no different from any other amenity which facilitates the dissemination of information or DATA through any medium. We are unable to appreciate the submission of the learned counsel for the appellants that the activities of TCL are in aid of enforcing the fundamental rights under Article 19(1)(a) of the Constitution. The recipients of the service of the telecom service voluntarily enter into a commercial agreement for receipt and transmission of information.

54. The function performed by VSNL/TCL cannot be put on the same pedestal as the function performed by private institution in imparting education to children. It has been repeatedly held by this Court that private education service is in the nature of sovereign function which is required to be performed by the Union of India. Right to education is a fundamental right for children upto the age of 14 as provided in Article 21-A. Therefore, reliance placed by the learned counsel for the appellants on the judgment of this Court in Andi Mukta would be of no avail. In any event, in the aforesaid case, this Court was concerned with the non-payment of salary to the teachers

by the Andi Mukta Trust. In those circumstances, it was held that the Trust is duty bound to make the payment and, therefore, a writ in the nature of mandamus was issued."

10. In the present case it is seen that the appellant was working as Deputy Director of the National Gandhi Museum which is managed by the Samiti. The Memorandum of Rules and Regulations does not show it having a pervasive control of the Government. Neither any officers of the Government are part of the management of the Samiti. Even the functions performed by the Samiti or for that matter the National Gandhi Museum are not of public nature. None of the tests laid down in Ajay Hasia‟s case (supra) or in Federal Bank Ltd. case (supra) exits in this case for the writ petition to be maintainable.

8. We note with approval the observation of the learned Single Judge in para 5 of the impugned judgment, which is as under:

"5. In the present case, the petitioner seeks enforcement of personal contractual rights as an employee. These personal contractual rights are a challenge to his compulsory retirement by the respondent no.1. No welfare legislations or any important statutory provisions are said to be violated by the respondent no.1, and of which enforcement is sought by the petitioner. Rules of respondent no.1 for its employees are not statutory rules and hence would thus be in the nature of contractual rules. Therefore, the enforcement of rights by the petitioner are purely private rights

against a private body/respondent no.1 and no statutory rules are being enforced. I need not cite the entire catena of case law on the legal aspects which I have stated above and it would be suffice to refer to three judgments of the Supreme Court in the cases of Binny Ltd. & Anr. Vs. V. Sadasivan & Ors. 2005 (6) SCC 657, Federal Bank Ltd. Vs. Sagar Thomas & Ors. 2003 (10) SCC 733 and General Manager, Kisan Sahkari Chini Mills Ltd, Sultanpur, U.P Vs. Satrughan Nishad & Ors. 2003 (8) SCC 639. These judgments hold that no doubt there is no bar in entertaining a writ against a body which is not „State‟ or „instrumentality of State‟, but, the function or duty which that body exercises and is challenged in a petition under Article 226 has to be a public duty/ function or have a public law element or is a statutory duty and issues with employees are not public functions for entertaining a writ petition with respect thereto. There is no public law/function element in a contractual appointment matter.

9. In view of the above we do not see any infirmity in the conclusion arrived at by the learned Single Judge and dismiss the appeal.

10. No costs.

(V.KAMESWAR RAO) JUDGE

(PRADEEP NANDRAJOG) JUDGE AUGUST 27, 2013/mm