Anil Dutta Mishra vs Gandhi Smarak Sangrahalaya ...
2013 Latest Caselaw 3027 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  W.P.(C) No. 13051/2009, CM Nos. 14016/2009 & 17010/2012

%                                                         17th July, 2013

ANIL DUTTA MISHRA                                               ......Petitioner
                          Through:       Purushottam Sharma Tripathi, Adv. Mr.
                                         Ravi Chandra Prakash, Adv. and Ms. Nidhi
                                         Ram, Adv.


                          VERSUS

GANDHI SMARAK SANGRAHALAYA SAMITI & ORS. ...... Respondents
                Through: Mr. A.K.Singla, Sr. Adv. with Mr. Deepak
                         R. Dahiya, Adv. for R-1,2 & 4.

                                         Mr. Ravinder Agarwal, Adv. for R-3 (UOI)

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.    This writ petition is filed by the petitioner Dr. Anil Dutta Mishra impugning

his dismissal from services by the respondent no.1-Gandhi Smarak Sangrahalaya

Samiti/employer.


2.    Respondent no.3 is Union of India. Union of India has filed an affidavit

stating that except for giving a one-time grant of Rs.10 crores to the respondent

no.2, which is managed by respondent No.1, the Union of India is not in the
WP(C) 13051/2009                                                            Page 1 of 4
 management and control of the respondent no.2.          Similar is the stand of the

respondent nos. 1,2 and 4 who have filed a common counter-affidavit. Respondent

no.1 is the employer.

3.    The law with respect to entertaining of writ petitions is now well settled.

Ordinarily 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. Of course, in limited number of cases even against a private

body writ petition will lie, but these writ petitions are those wherein issue arises of

compliance of certain welfare legislations or equally important legislative

provisions by the private body. Against a private body as such when the private

body is not doing what are known as public functions or statutory functions or such

other important functions which would make it a State, a writ petition will not lie.


4.    The facts of the present case show that there is only a one time grant by the

Union of India. The Union of India gives grants (not one time but even on many

occasions) to various organizations. Merely by giving of grants, the receiving

organization does not necessarily become a State as per Article 12 of the

Constitution of India. For example, various NGOs are given grants, but, that itself

does not make an NGO a State under Article 12 of the Constitution of India.

Merely because, and it is so argued by counsel for the petitioner, the funds given

WP(C) 13051/2009                                                             Page 2 of 4
 to the respondent no.2 are audited by the Controller and Auditor General, will not

grant respondent no.1 the status of a State as per Article 12 of the Constitution of

India because a person or entity which grants funds is surely entitled to check

utilization of the same, and mere checking of utilization cannot mean that the body

in question on that ground itself will become a State as per Article 12 of the

Constitution of India.


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.

WP(C) 13051/2009                                                           Page 3 of 4
 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.


6.    In view of the above, the writ petition is not maintainable under Article 226

of the Constitution of India against the respondent no.1, and which is accordingly

dismissed, leaving the parties to bear their own costs.




July 17, 2013                                        VALMIKI J. MEHTA, J.

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