Delhi High Court
Sharad Kumar vs Confederation Of Indian Industry ... on 8 February, 2016
$~27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DECIDED ON: 08.02.2016
+ LPA 84/2016, CM APPL.4562-4564/2016
SHARAD KUMAR ..... Appellant
Through: Mr. Sharad Kumar, appellant in person.
Versus
CONFEDERATION OF INDIAN INDUSTRY & ANR ....Respondents
Through: Mr. Ajit Warrier with Ms. Tarunima Vijra,
Advocates for Resp-1.
Mr. Vikas Mahajan with Mr. Rohan Gupta and Mr.
Sumit Rajput, Advocates for Resp-2.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE DEEPA SHARMA
S.RAVINDRA BHAT, J. (ORAL)
1. This Letters Patent Appeal challenges an order dated 17.11.2015 of the
learned Single Judge of this Court dismissing the appellant's writ petition.
2. Briefly, the facts of this case are that on 01.10.2010, the appellant was
appointed as Director on regular and full time basis by the first Respondent (CII).
He was assigned the duties of internal legal counsel of CII. On 30.03.2015, he was
relieved of his employment. The appellant claims that he has been ousted from his
job in an arbitrary and illegal manner, and therefore, seeks reinstatement of his
employment. He approached this Court by filing a writ petition under Article 226
of the Constitution of India.
3. The learned Single Judge in the impugned order held that the writ petition
is not maintainable as CII is neither 'State' under Article 12, nor discharges any
'public function' for the purposes of Article 226. On the point of whether CII
discharges any public function, the Court distinguished the present case from the
case of Board of Control for Cricket in India v. Cricket Association of Bihar &
Ors. (2015) 3 SCC 251 by holding that there is no public law element in the
functioning of CII. Further in the context of 'State' the learned Single Judge held
that CII would not fall under such definition as contemplated under Article 12
since CII does not satisfy the test laid down in Pradeep Kumar Biswas v. Indian
Institute of Chemical Biology, (2002) 5 SCC 111. According to this judgment, the
government must have „financial, functional and administrative control‟ over the
body in question. Further, such control must be pervasive and particular to the
body in question. It is clear that there is no „deep and pervasive‟ financial,
functional or administrative control of the government over CII. The learned
Single Judge also held that CII does not perform any 'public function' for the
purposes of Article 226, as it does not satisfy the requirements of the test laid
down in BCCI case (supra).
4. The appellant submits that even if CII is not 'State' under Article 12, it
performs a 'public function' under Article 226. He further argues that the learned
Single Judge erred in holding that CII was not discharging 'public function' as the
said finding is contrary to the law laid down by the Supreme Court in the case of
BCCI (supra).
5. This Court notices that the crux of the issue of maintainability, therefore,
rests upon the question of whether CII discharges any 'public function' for the
purposes of Article 226. It is now a settled position of law that for a body to be
amenable to the writ jurisdiction of the Court under Article 226, it need not be
'State' as required under Article 12. In the case of Andi Mukta Sadguru Shree
Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust & Ors. v. V.R.
Rudani & Ors. (1989) 2 SCC 691, the Apex Court distinguished between Article
32 and Article 226:
"The term „authority‟ used in the context, must receive a liberal
meaning unlike the term in Article 12, which is relevant only for the
purpose of enforcement of fundamental rights under Article 32...
The words „any person or authority‟ used in Article 226 are,
therefore, not to be confined only to statutory authorities and
instrumentalities of the State. They may cover any other person or
body performing public duty." (emphasis supplied)
The majority opinion of a five Judges' Bench of the Supreme Court further upheld
this proposition in Zee Telefilms & Anr. v. Union of India (2005) 4 SCC 649:
"Thus, it is clear that when a private body exercises its public functions
even if it is not a State, the aggrieved person has a remedy not only under
the ordinary law but also under the Constitution, by way of a writ petition
under Article 226."
6. The test of what constitutes an authority performing 'public function' was
laid down in BCCI (supra) case. The Supreme Court conducted a detailed analysis
of when a body can be called an authority performing public function:
"The majority view thus favours the view that BCCI is amenable to the writ
jurisdiction of the High Court under Article 226 even when it is not „State‟
within the meaning of Article 12. The rationale underlying that view if we
may say with utmost respect lies in the „nature of duties and functions‟
which the BCCI performs. It is common ground that the respondent-Board
has a complete sway over the game of cricket in this country. It regulates
and controls the game to the exclusion of all others. It formulates rules,
regulations norms and standards covering all aspect of the game. It enjoys
the power of choosing the members of the national team and the umpires. It
exercises the power of disqualifying players which may at times put an end
to the sporting career of a person. It spends crores of rupees on building
and maintaining infrastructure like stadia, running of cricket academies
and Supporting State Associations. It frames pension schemes and incurs
expenditure on coaches, trainers etc. It sells broadcast and telecast rights
and collects admission fee to venues where the matches are played. All
these activities are undertaken with the tacit concurrence of the State
Government and the Government of India who are not only fully aware but
supportive of the activities of the Board. The State has not chosen to bring
any law or taken any other step that would either deprive or dilute the
Board‟s monopoly in the field of cricket...Any organization or entity that
has such pervasive control over the game and its affairs and such powers
as can make dreams end up in smoke or come true cannot be said to be
undertaking any private activity. The functions of the Board are clearly
public functions, which, till such time the State intervenes to takeover the
same, remain in the nature of public functions, no matter discharged by a
society registered under the Registration of Societies Act. Suffice it to say
that if the Government not only allows an autonomous/private body to
discharge functions which it could in law takeover or regulate but even
lends its assistance to such a non- government body to undertake such
functions which by their very nature are public functions, it cannot be said
that the functions are not public functions or that the entity discharging the
same is not answerable on the standards generally applicable to judicial
review of State action".(emphasis supplied)
The law on what constitutes 'public function' for the purposes of Article 226 was
also laid down in the case of Andi Mukta Sadguru case (supra):
"...The term „authority‟ appearing in Article 226 of the Constitution would
cover any other person or body performing public duty. The guiding factor,
therefore, is the nature of duty imposed on such a body, namely, public duty
to make it eligible to Article 226. The words "Any person or authority" used
in Article 226 are, therefore, not to be confined only to statutory authorities
and instrumentalities of the State. They may cover any other person or
body performing public duty. The form of the body concerned is not very
much relevant. What is relevant is the nature of the duty imposed on the
body. The duty must be judged in the light of positive obligation owed by
the person or authority to the affected party."(emphasis supplied)
7. It is clear that functions of any body or entity should be essentially in the
nature of public duty or akin to the functions of State - for instance, regulating a
sport entirely at national level. The body in question must have 'pervasive control'
or monopoly over the activity, as in the case of BCCI (supra). Further, there
should be some positive obligation of a public nature.
8. In this case, CII is a body registered under the Societies Registration Act,
1860. The objects of the society relate to promotion of knowledge of engineering,
science and technology, to promote the industry of engineering and encourage the
efficiency of the industry itself. It also seeks to maintain a cordial dialogue
between the industry and Government, and to assist the engineering industry to
meet its social obligations. Further, it promotes cooperation between members for
promotion of their common interests. It negotiates and enters into any arrangement
with Governmental bodies for the promotion of interests of its members. Overall,
it seeks to enhance the contribution of the engineering industry to the growth and
development of the economy. CII served as an umbrella group for SMEs as well
as MNCs involved in these activities.
9. It is apparent therefore, that CII acts as a trade group involved with the
Government in a consultative and advisory capacity. The functions performed by
it, if are not akin to State functions, it only serves as a platform network for
government, industry and other stakeholders. CII neither owes any positive duty
of a public nature nor does it have any 'pervasive control' or monopoly over any
activity like the BCCI has over the cricket. Further, the functions are not in any
way akin to the duties of the State. Thus, it is clear that though the functions
performed by CII are important and beneficial, they are not in the nature of 'public
duty'. Further, as held in G. Bassi Reddy v. International Crops Research Institute
& Anr. [(2003) 4 SCC 225], merely because the Indian public is benefited by the
activity of an organization, it cannot be claimed that the organization is
performing public function:
"...Although, it is not easy to define what a public function or public duty
is, it can reasonably be said that such functions are similar to or closely
related to those performable by the State in its sovereign capacity. The
primary activity of ICRISAT is to conduct research and training
programmes in the sphere of agriculture purely on a voluntary basis. A
service voluntarily undertaken cannot be said to be a public duty... While
the Indian public may be the beneficiary of the activities of the institute, it
certainly cannot be said that the ICRISAT owes a duty to the Indian public
to provide research and training facilities."(emphasis supplied)
It was held, in Binny v V. Sadasivan, 2005 (6) SCC 657 by the Supreme Court
that:
"the scope of mandamus is limited to enforcement of public duty. 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 the denial of any right is in
connection with the public duty imposed on such body, the public law
remedy can be enforced."
10. The learned Single Judge held - in this case, that the existence of a public
sector undertaking as a member of the Confederation would not make the
confederation an entity of the Government. The procedure of membership is well
laid down that the membership is open to any firm or company involved in the
manufacturing sector in India. Therefore, CII is not amenable to writ jurisdiction
under Article 226 of the Constitution of India.
11. This Court is of opinion that the conclusions of the learned Single Judge
that even if it is assumed that CII is a body performing public duties, its decision,
i.e., termination of the appellant's employment, does not have any public element.
This position was held by the Supreme Court in the case of K.K. Saxena v. ICID,
2015 (4) SCC 670:
"There is yet another very significant aspect which needs to be highlighted
at this juncture. Even if a body performing public duty is amenable to writ
jurisdiction, all its decisions are not subject to judicial review, as already
pointed out above. Only those decisions which have public element therein
can be judicially reviewed under writ jurisdiction. In the Praga Tools
Corporation v. Shri C.A. Imanual & Ors., as already discussed above, this
Court held that the action challenged did not have public element and writ
of mandamus could not be issued as the action was essentially of a private
character. That was a case where the concerned employee was seeking
reinstatement to an office."(emphasis supplied)
12. In view of the foregoing reasons, the appeal has to fail. The learned Single
Judge is right in holding that the petitioner is at liberty to approach the appropriate
authority under the Payment of Gratuity Act for his claims with respect to the
payment of gratuity. It is also open to him to seek other remedies available in law.
The appeal is dismissed.
S. RAVINDRA BHAT
(JUDGE)
DEEPA SHARMA
(JUDGE)
FEBRUARY 08, 2016
