Delhi High Court
Anil K Aggarwal, Advocate & Anr. vs Union Of India & Ors. on 1 May, 2020
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 01.05.2020
+ W.P.(C) No.3027/2020 & CM APPL. 10544/2020
ANIL K AGGARWAL, ADVOCATE & ANR. ..... Petitioners
Through: Petitioner No.1 in person.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Gudipati G. Kashyap, Adv.
for NBCC.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE C. HARI SHANKAR
J UDGMENT
:D.N. PATEL, Chief Justice (Oral)
CM APPL.10544/2020 (exemption)
Allowed, subject to just exceptions.
W.P.(C) No.3027/2020
1. The prayer clause in this writ petition, purportedly filed in
public interest, is self speaking, and reads thus::-
"In the above premises, amongst others, the petitioners are
confident that the Hon'ble Court will be pleased to award the
following prayer(s) of its duty-bound petitioners to:
W.P.(C) 3027/2020 Page 1 of 22
A. Issue writ of or in the nature of mandamus and/or
any other appropriate writs, orders or direction
directing the respondents to strictly enforce the Covid-
19 related statutory Orders and Guidelines both dated
15.04.2020 (Annexure P-2) in the letter and spirit and
prevent misuse of relaxations by any person or
Ministry, Government Department/Office and Central
Public Enterprises/Government Companies and take all
necessary steps to immediately close the offices and
operations of the non-exempted Central Public
Enterprises/Government Companies such as and
including Steel Authority of India Limited, NBCC
(India) Ltd., EIL Ltd., IRCON International Limited,
Rites Limited, etc. dealing in non-essential goods and
services; and keep the same closed during the entire
lockdown period till 03.05.2020 or till such period
extended by the NDMA/Respondent No.2; and
B. Issue writ of or in the nature of mandamus
and/or any other appropriate writs, orders directing the
respondent No.1 to trace out all Ministries,
Departments/Offices and Central PSEs/companies,
involved in non-essential goods and services and
opened their offices and operations during lockdown
period and initiate disciplinary action against the head
of such Ministries/Departments and Chairman and/or
MDs and Managing Director and members of Board of
Directors of all such PSEs/government companies and
to lodge FIR against the offending heads in terms of
Section 58 of the Disaster Management Act, 2005 for
committing offence punishable under Section 51 of the
said Act and Section 188 of the Indian Penal Code,
1908; and
C. Pass such other writ, orders or directions as this
Hon'ble Court deems fit in the circumstances of the
case and in the interest of justice including the costs of
this petition."
2. The petitioners are practising advocates. The writ petition was
argued by Mr. Anil K. Aggarwal, the first petitioner, in person, via
W.P.(C) 3027/2020 Page 2 of 22
video conferencing, in view of the urgent nature of the reliefs sought
in the petition.
3. As is apparent from a reading of the afore-extracted prayer
clause, the petitioners harbour the impression that, by allowing their
offices to function, public sector enterprises engaged in "non-essential
goods and services" - as the petitioner would seek to denote them -
such as the Steel Authority of India Ltd (SAIL), National Buildings
Construction Corporation (India) Ltd (NBCC), Engineers India Ltd
(EIL), Indian Railways Construction International Ltd (IRCON) and
the Rail India Technical and Economic Service (RITES), have
breached Order dated 15th April, 2020, issued by the Ministry of
Home Affairs (MHA). The writ petition, therefore, prays for a
mandamus, to such Public Sector Undertakings/Public Enterprises to
shut down their establishments, forthwith, and keep the establishments
shut down during the currency of the lockdown, enforced by the
Central Government and State Governments, as a measure to contain
the spread of the COVID-19 virus, which has taken the form of a
global pandemic. The writ petition also seeks initiation of criminal
proceedings against the Heads of such Public Enterprises/Government
Companies, for having breached the lockdown imposed by the
Government.
4. We may note, at the outset, that the petitioners have not chosen
to implead any Public Sector Undertaking / Public Enterprise/
Government Company, as a respondent, even while seeking a
W.P.(C) 3027/2020 Page 3 of 22
direction to such establishments to shutdown, forthwith, and also
seeking initiation of criminal proceedings against them. On the face of
it, therefore, the present writ petition is bad for non-joinder of
essential parties. We, however, do not desire to encourage multiplicity
of litigation, which would be the inevitable fallout, were we to dismiss
this writ petition on the ground of non-joinder; ergo, we have heard
Mr. Aggarwal, at copious length, and proceed to dispose of the writ
petition on merits.
5. All that the writ petition requires us to examine, obviously, is
whether the Order, dated 15th April, 2020, and the Guidelines brought
into effect thereby, stand infracted, by Public Sector
Undertakings/Public Enterprises/Government Companies (to whom,
for the sake of ease of reference, we would be adverting as "PSUs"),
by allowing their offices to function during the period of lockdown.
6. The Order, dated 15th April, 2020, which has been issued in
exercise of the powers conferred by Section 10(2)(i) of the Disaster
Management Act, 2005 (hereinafter referred to as "the Disaster
Management Act") enumerates, exhaustively and comprehensively,
various categories of establishments which would, and which would
not, be permitted to function, during the period of lockdown, to remain
in force till 3rd May, 2020 as of now. We need to concern ourselves
only with S. No. 18 of the list of establishments annexed to the said
Order, which reads thus:
W.P.(C) 3027/2020 Page 4 of 22
"18. Offices of the Government of India, its
Autonomous/Subordinate Offices will remain open, as
mentioned below:
i. Defence, Central Armed Police Forces, Health and
Family Welfare, Disaster Management and Early Warning
Agencies (IMD, INCOIS, SASE and National Centre of
Seismology, CWC). National Informatics Centre (NIC). Food
Corporation of India (FCI). NCC, Nehru Yuva Kendras
(NYKs) and Customs to function without any restriction.
ii. Other Ministries and Departments, and offices under
their control, are to function with 100% attendance of Deputy
Secretary and level above that. Remaining officers and staff
to attend up to 33% as per requirement."
(Emphasis supplied)
7. Practically on the heels of the said Order, an Office
Memorandum (hereinafter referred to as "OM") was issued, the same
day, i.e. 15th April, 2020, by the Ministry of Housing and Urban
Affairs (MHUA), referring to the afore extracted para 18 (ii) of the
Order dated 15th April, 2020, and, in furtherance thereof, directing all
officers, of and above the level of Deputy Secretary of the Ministry
"to attend with effect from 20.4.2020", and the remaining
officers/staff to attend "up to 33% of the strength as per requirement."
The said OM was made applicable till 3rd May, 2020, i.e. till the
expiry of the lockdown, as imposed by the Order dated 15th April,
2020 supra.
8. Closely following thereupon, on 16th April, 2020, the following
OM was issued by the Department of Public Enterprises (DPE),
Ministry of Heavy Industries and Public Enterprises:
W.P.(C) 3027/2020 Page 5 of 22
"F. No. 10037/2014-GM-FTS-1867
Government of India
Ministry of Heavy Industries & Public Enterprises
Department of Public Enterprises
***********
Block No 14, CGO Complex,
Lodi Road, New Delhi-110003
Dated: 16 April, 2020
OFFICE MEMORANDUM
Subject: Consolidated Revised Guidelines on the measures
to be taken by Ministries/Departments of Government of
India, State/duty Governments and State/duty authorities
for containment of COVID-19 in the country. [As per
Ministry of Home Affairs (MHA) Order No 40-3/2020-
DM-I (A) dated 15th April, 2020 and 16.4.20 20]
The undersigned is directed to enclose a copy of
MHA's Order No 40-3/2020-DM-I (A) dated 15.04.2020 and
amendment dated 16.4.2020 along with the Consolidated
Revised Guidelines with the request to instruct the CPSEs
under the jurisdiction of the concerned Ministries/
Departments for the compliance thereof.
(Pavanesh K. Sharma)
Deputy Secretary to the Government of India
To
All Secretaries of Ministries/Departments concerned
with CPSEs
CMDs of all CPSEs"
9. Immediately following thereupon, on the very next day, i.e. 17th
April, 2020, SAIL and NBCC issued Office Orders, invoking the
afore-extracted para 18 ii) of the Order dated 15th April, 2020 supra,
issued by the MHA, and directing employees, in their respective
offices, above a particular level (equivalent to Deputy Secretary in the
Government of India) to attend office, w.e.f. 20th April, 2020, till the
expiry of the lockdown period. On the same day, i.e. 17th April, 2020,
the Railway Board issued a Circular to the Chairman and Managing
Directors/Managing Directors of various Corporations controlled by
it, namely Braithwaite and Co Ltd, Kolkata, Container Corporation of
India Ltd, Indian Railway Catering and Tourism Corporation, IRCON
International Ltd, Konkan Railway Corporation Ltd, Mumbai Railway
Vikas Corporation Ltd, Railtel Corporation of India Ltd, RITES Ltd,
Rail Vikas Nigam Ltd, Dedicated Freight Corridor Corporation of
India Ltd, Indian Railway Finance Corporation Ltd and Kolkata Metro
Rail Corporation Ltd, to comply with the order dated 15th April, 2020
supra, of the MHA. It was further directed, in the said Circular, that,
wherever offices were opened in exigency of service, social distancing
was strictly required to be enforced and observed.
10. According to the petitioners, as vocalised by Mr. Aggarwal, the
aforesaid Office Orders and Circular, issued by the SAIL, NBCC and
the Railway Board, directly infracted the Order dated 15th April, 2020
supra, issued by the MHA, and breached the lockdown imposed
thereby. Given the prevalent COVID-2019 pandemic, and the critical
situation that has resulted as a consequence thereof, Mr. Aggarwal
submits that such disobedience, by PSUs, of lockdown directives
issued by the Central Government, which was inherently inimical to
public health and to public interest, could not be tolerated for an
instant. Ergo, the prayers in the writ petition, which already stand
distilled hereinabove.
11. Though the petitioners did not choose to implead any of the
affected PSUs, NBCC was, nevertheless, represented, during the
proceedings, by Mr. Gudipati G. Kashyap, who submits that the
Circular, dated 17th April, 2020, of the NBCC, was a consequence of,
and in compliance with, the OM, dated 16th April, 2020 supra, issued
by the DPE, which mandated compliance, by PSUs, with the Order,
dated 15th April, 2020 supra, issued by the MHA. He refutes the
submission, of Mr. Aggarwal, that, in partly opening its offices, the
NBCC had infracted Clause 18 ii) of the Guidelines dated 15th April,
2020. He submits that PSUs, such as the NBCC, were under the
control of their nodal/parent Ministries - in the case of the NBCC, the
Ministry of Housing and Urban Affairs - and, therefore, had to ensure
100% attendance of all officers, who were equivalent to the rank of
Deputy Secretary, in the Central Government, and above. Complete
shutdown of the office of his client, Mr. Gudipati G. Kashyap would
submit, would, in fact, violate Clause 18 ii) of the Order dated 15th
April, 2020.
12. Mr. Aggarwal strongly opposes the submission of Mr. Gudipati
G. Kashyap and relies on A. K. Bindal v. U.O.I.1, National Textile
Corporation Ltd v. Naresh Kumar Badri Kumar Jagad2 and Mohd
Hadi Raja v. State of Bihar3, to submit that public sector
undertakings, which operate with a motive to profit, and are purely
(2003) 5 SCC 163
(2011) 12 SCC 695
(1998) 5 SCC 91
commercial enterprises, could not be treated as "offices under the
control of" the Government, so as to be entitled to the benefit of
Clause 18 ii) of the Order dated 15th April, 2020. He also presses, into
service, in this regard, the well-entrenched principle, governing
interpretation of statutes, that words have to take colour from the
company they keep and submits, therefore, that the expression
"offices under the control", as employed in Clause 18 ii) of the Order
dated 15th April, 2020, has to take colour from the expression "Other
Ministries and Departments". The offices, which would be entitled to
the benefit of the said clause, therefore, according to Mr. Aggarwal,
had to be analogous to Ministries and Departments, and not in the
nature of commercial public Sector undertakings and the like. He
emphasises that the "control" exercised, by the Government, over
such undertakings, was merely owing to the majority Governmental
shareholding therein, and could not operate to characterise such
undertakings as similar to Ministries and Departments of the
government. Lastly, Mr. Aggarwal sought to place reliance on the
earlier Order, dated 24th March, 2020, issued by the MHA, also under
Section 6(2)(i) of the Disaster Management Act, which did not permit
public Sector undertakings, such as the SAIL or NBCC, to operate
during the period of lockdown.
13. We have heard learned counsel at length, and applied ourselves
to the submissions advanced at the Bar.
14. While examining the contentions of Mr. Aggarwal, in this
regard, we deem it appropriate, at the very outset, to clarify one aspect
of the controversy - which, in our view, must inform all cases in
which interpretation of executive instructions, issued by the
Government, in the wake of the COVID-19 pandemic, becomes
necessary. It is essential to bear in mind the fact that the situation, in
which these instructions have been issued - and continue to be issued,
periodically - is, effectively, sui generis. Neither has India, nor has
the rest of the world, seen, in the recorded past, a global pandemic, of
the magnitude assumed by COVID-19. The continued spread of the
infection, and mounting casualties, have necessitated emergent and
immediate steps, by government authorities, based on a day-to-day
assessment of the situation, and keeping in mind its improvement or
deterioration. The measures, which the government authorities have,
assiduously, put into place, to tackle the crisis, could not be treated as
either foreseeable or predictable, in any manner. The flip side of the
coin is, unfortunately, imminent economic regression, and, in national
and public interest, the Government is also committed to ensuring that
the economic edifice of the country does not fall to the ground. A fine,
and nice, balance is, therefore, to be struck, by the executive, in
safeguarding the concerns of health and economy, without
compromising on either, to any extent. The clamping down, on the
citizenry, of lockdown, and the simultaneous relaxation, of the rigour
of the lockdown, in respect of certain offices and enterprises, is an
effort at maintaining such a delicate balance. It is a matter of public
knowledge that the decision, regarding the establishments, offices and
enterprises, which ought to be extended some relaxation, from the
rigour of the lockdown, is a decision taken after days of deliberation,
involving pan-India consultations at the highest levels of the Central
government as well as the governments of the various States and
Union Territories, aimed at safeguarding and promoting national
interest, irrespective of considerations of caste, creed or political
affiliations. A bare reading of the Guidelines governing the lockdown,
as issued from time to time, make it apparent that the decision,
regarding the precise extent to which lockdown should be imposed, is
one with which interference, at the hands of the judiciary, must be
reduced to a bare minimum.
15. The judiciary cannot, in exercising its powers in such cases,
regard itself as a mere dispute-resolution mechanism, and has to keep,
at all times at the forefront, considerations of overarching public
interest. While, therefore, continuing to exercise judicial vigil over the
acts of the executive, Courts have, in times such as these, necessarily
to take care that, in doing so, they do not rock the boat, ending up
doing more harm than good. The balance required to be maintained by
the judiciary is, therefore, just as delicate, and fragile.
16. It becomes important to bear this aspect in mind, while
examining the various judicial authorities, on which Mr. Aggarwal
places reliance. Those authorities, as the discussion hereinafter would
make it apparent, dealt with the concept of governmental control over
public Sector enterprises, or other such establishments, in contexts,
and situations, far removed from that in which the Order dated 15th
April, 2020, came to be issued. The extent to which these decisions
should influence the mind of the Court, in understanding the scope
and ambit of Clause 18 ii) of the Order dated 15th April, 2020 is,
therefore, a matter of fundamental importance.
17. We also deem it appropriate to rely, in this regard, on the Office
Memorandum dated 16th April, 2020, issued by the DPE, which stands
extracted, in extenso, in para 8 supra. The very fact that the said
Office Memorandum requested that PSUs be instructed to comply
with the Order dated 15th April, 2020 supra, of the MHA, in our view,
is a pointer, to some extent, to the fact that the said Order, dated 15th
April, 2020 did not contemplate complete closure of all PSUs, as Mr.
Aggarwal would seem to suggest.
18. Mr. Aggarwal would seek to submit that the expression "offices
under their control", as employed in clause 18 ii) of the 15th April,
2020 guidelines, has to be interpreted in the light of the law laid down
in A. K. Bindal 1, National Textile Corporation Ltd2 and Mohd Hadi
Raja3, and that, so interpreted, PSUs could not be regarded as offices
under the control of the Central or State government.
19. The Supreme Court, in A. K. Bindal 1 was concerned with the
issue of whether employees of Government companies had an
enforceable right to demand that the burden of increased wages,
resulting out of wage settlements entered into between such
Government companies and their employees, was required to be borne
by the Central Government. This argument was premised on the
control, exercised by the Central Government, over Government
companies. It was in this background that the Supreme Court clarified
thus:
"17. ......The government company is not identified with the
Union but has been placed under a special system of control
and conferred certain privileges by virtue of the provisions
contained in Sections 619 and 620 of the Companies Act.
Merely because the entire shareholding is owned by the
Central Government will not make the incorporated company
as Central Government. It is also equally well settled that the
employees of the government company are not civil servants
and so are not entitled to the protection afforded by Article
311 of the Constitution (Pyare Lal Sharma v. Managing
Director). Since employees of government companies are not
government servants, they have absolutely no legal right to
claim that the government should pay their salary or that the
additional expenditure incurred on account of revision of their
pay scales should be met by the Government...."
(Emphasis supplied)
Even while, therefore, affirming that there was a "special
system of control", exercised by the Central Government over
government companies, the Supreme Court clarified that this control
was not sufficient to burden the Government with the liability to pay
enhanced wages of the employees of Government companies.
20. In National Textile Corporation Ltd2, it was sought to be
submitted, before the Supreme Court, that government Companies
were agents of the Government, within the meaning of Section 182 of
the Contract Act, 1872. This submission was rejected by the Supreme
Court. While doing so, the Supreme Court acknowledged that a
Government company may be called an "agency" or "instrumentality"
of the Central Government, in order for it to be treated as "State"
within the meaning of Article 12 of the Constitution. This, however, it
was held, did not render the Government company an "agent" of the
Central Government, as defined under Section 182 of the Contract
Act.
21. While these decisions, therefore, involved issues entirely
foreign to the issue in controversy before us, they, if anything,
confirmed the control, unquestionably exercised by the Government
over Government companies, or PSUs, but go on to hold,
nevertheless, that, merely by reason thereof, Government companies
do not become agents of the Government, nor can the Government be
rendered liable to defray, from the public exchequer, the additional
expenditure, arising out of upward revision of wages of employees of
such Government companies.
22. Mohd Hadi Raja3 dealt with the issue of whether sanction,
under Section 197 of the Code of Criminal Procedure, 1973, was
required to prosecute a government servant who was on deputation
which are public Sector undertaking. The controversy was, therefore,
factually, even more distant, from the present case, than the two
decisions cited earlier. Even so, the said judgement demolishes,
effectively, in the following sentence, figuring in para 22 of the report,
the very basis of the submission of Mr. Aggarwal:
"For the purpose of enforcing the fundamental rights, the
public undertaking which, on account of deep and pervasive
control, can be held to be State within the meaning of Article
12 has been treated on a par with the Government department
but in all its facets, public undertaking has not been equated
with the department run directly by the Government."
(Emphasis supplied)
The Supreme Court distinguishes, in this decision, therefore, PSUs,
over which the Government has "deep and pervasive control", with
"departments run directly by the Government". Clause 18 ii) merely
refers to "offices under their control", and not to offices "run directly
by the Government". The existence of Governmental control, over
PSUs, cannot be gainsaid. Indeed, Mr. Aggarwal was candid in
accepting that control, of a kind, did exist, but sought to emphasise the
fact that such control was attributable only to the shareholding, of the
Government, in such PSUs. To our mind, the reason for the existence
of control, or the source to which such control owes its origin, is
entirely irrelevant, while interpreting Clause 18 ii) of the guidelines
dated 15th April, 2020. Governmental control, over their affairs,
unquestionably exists and that, in our view, is enough, for PSUs to
regard themselves as officers under the control of the Government.
23. We are of the view that the entire exercise, attended by the
petitioners in the present case, though bona fide, is fundamentally
misdirected. In seeking to draw sustenance from judicial
pronouncements4, regarding the extent of control that exists, of the
Government, over Government companies or PSUs, the petitioners
have failed to bear, in mind, the fact that the issue to be addressed is
Refer Ashwani Kumar Singh v. U. P. Public Service Commission, (2003) 11 SCC 584 and Bir Singh v.
Mukesh Kumar, (2019) 4 SCC 197, which ruled that pronouncements of Courts are not to be treated as
analogous to Euclid's theorems, and are always rendered in the facts of the case before the Court.
not whether, etymologically speaking, PSUs may, or may not, be
regarded as "offices under the control of" the Government, but, rather,
whether any case may be said to exist, as would justify a mandamus,
by this Court, to all PSUs, to shut down forthwith. We, therefore, have
consciously chosen to avoid treading the path travelled by Mr.
Aggarwal, and embarking on a dissertation regarding the legal, or
jurisprudential contours of the expression "offices under their
control", as used in Clause 18 ii) of the Guidelines of 15th April,
2020. To our mind, any attempt at dissecting, lexicographically, the
said expression, with a view to understanding the ambit of Clause 18
ii), would be thoroughly misconceived.
24. The fiscal - and, indeed, human - consequences, of any such
decision, based on such an exercise, would be far-reaching, and
cannot be wished away. The continued lockdown, though
unavoidable, has, inevitably, resulted in a certain degree of upheaval,
in the industrial and economic demographics of the country. It is
obviously with a view to strike a balance between the necessity of
minimal social interaction, on the one hand, and deleterious - and, if
left unchecked, possibly catastrophic - fiscal and industrial
consequences, on the other, that the executive administration has
taken a decision, vide the Guidelines dated 15th April, 2020, to allow
certain enterprises to function. We cannot ignore the fact that the
PSUs, specifically named in the present petition, as well as other such
industrial undertakings, are engaged in production of goods and
services which impact, seriously and substantially, the lives of the
citizens. It is not for this Court to pronounce on the services which
may be treated as "essential" and those which may be regarded as
"non-essential". Neither, in the exercise of the power of judicial
review, vested in us, is it permissible for us to rewrite the Guidelines
issued by the MHA by introducing, therein, any consideration of the
"essential" or "non-essential" nature of services. Any such exercise, in
a country as large as ours, with our population, must, in fact, be self-
defeating. Conceptually speaking, in fact, the goods produced, and
services rendered, by public Sector undertakings are all, to one extent
or the other, "essential".
25. The prayers in the writ petition are, to that extent,
fundamentally misconceived. Issues such as extent to which the
lockdown be relaxed, whether socialisation should be limited only to
enterprises rendering "essential" goods or services, or should extend
to all enterprises, and, in the former case, the categories of goods or
services which may be regarded as "essential", are all within the realm
of executive discretion. It is not for us to pronounce thereupon. We do
not formulate governmental policy. Judicial interference, with the
exercise of executive discretion, in such cases, has necessarily to be
circumspect, and may justifiably be said to be invited only where the
decision, resulting from such exercise, suffers from absurdity, or
manifest perversity. Courts cannot sit in appeal over the executive
policy, in such matters; least of all in a situation of crisis, such as that
with which the administration is grappling at present.
26. This Court would be loath to ascribe, to the Guidelines of 15th
April, 2020 - specifically, Clause 18 ii) thereof - the interpretation
which Mr. Aggarwal to place thereon, especially where any such
exercise, on our part, would severely impact industrial and economic
activity. We must, in such a situation, necessarily defer to the wisdom
of the executive, at this juncture, and interference, therewith, would be
justified only where the exercise of such wisdom is tainted, in law, for
one reason or the other. The writ petition does not level any allegation
of malafides against the executive - as, indeed, it cannot. We, in the
circumstances, are unable to convince ourselves that any case exists,
for this Court to issue a mandamus to all public Sector undertakings to
shut down forthwith.
27. Notice, in this regard, may be taken of the recital, in the Order
dated 15th April, 2020, to the effect that the allowing of "select
additional activities" is intended "to mitigate the hardship to the
public". The same para goes on to state that such additional activities
would be operationalised by States/Union Territories/District
Administration, maintaining strict compliance with existing lockdown
guidelines. All such States, Union Territories and District
Administrations have also been directed, by the Order, to "ensure that
all the regulatory arrangements with regard to social distancing in
offices, workplaces, factories and establishments as also other sectoral
requirements are in place". Clearly, therefore, the Order, dated 15th
April, 2020, consciously includes, within the scope of the relaxations
allow thereby, operation of factories and establishments.
28. We cannot, therefore, subscribe to the extreme view,
propounded by Mr. Aggarwal, that all public Sector undertakings,
save and except those engaged in what the petitioners regarded as
"essential" activities, should be shut down forthwith. The executive
administration is, needless to say, alive to the functioning of all
industrial undertakings, PSUs or otherwise, and we only hope and
trust that compliance, with the Guidelines, regarding implementation
of the lockdown, as well as relaxations allowed therefrom, would be
ensured, at all points of time. Needless to say, if the executive
administration fails to act, despite violation of any such Guidelines,
the Court would, unquestionably, step in. We are not convinced that,
in the present case, any such violation exists. Nor are we of the view
that, in exercise of power of judicial review, the Guidelines, dated 15th
April, 2020 supra, ought to be amended, or even clarified, by us, in
the manner proposed in prayer A in the writ petition.
29. Mr. Aggarwal also sought to invoke, in his support, Article 14
of the Constitution of India. He submits that, if industrial activities are
to be allowed relaxation from the rigour of the lockdown, such
relaxation could not be limited to PSUs, but must extend to all
industrial activities - and, indeed, all economic concerns and office
spaces. We do not agree. Certain categories of industrial activities
have been referred to, particularly, in the Guidelines of 15th April,
2020. Additionally, in view of the interpretation adopted by us
hereinabove, Clause 18 ii) also allows officers under the control of the
Government - which would include public Sector undertakings and
Government companies - to function. This, again, is a conscious
executive decision, with which we are not inclined to interfere, to any
extent. Article 14 of the Constitution of India has no role to play in
such a case. It cannot be said that there is no intelligible differentia,
between the categories of economic establishments and industries,
excepted, by the Guidelines dated 15th April, 2020, from the rigour of
the lockdown, and other establishments run by private individuals.
Neither can this Court be a signatory to any declaration that every
establishments should be permitted to operate, during the currency of
the COVID-19 pandemic. It is entirely within the realm of the
executive, seized with the crisis and the necessity of tiding over it in
the best possible manner, to take a decision regarding the
establishments which may be permitted to function, and to the extent
thereof. Any expression of opinion, by the judiciary, with respect
thereto, is fraught with serious and debilitating consequences. We,
therefore, unhesitatingly reject the plea of discrimination, thus voiced
by Mr. Aggarwal.
30. We do not, in these circumstances, deem it necessary to
examine, in any great detail, the contention, of Mr. Aggarwal -
founded, essentially, on the noscitur a sociis principle - that the
expression "officers under the control", as employed in Clause 18 ii)
of the Guidelines of 15th April, 2020, has to be interpreted and
analogously with the expression "Other Ministries and Departments".
Besides, it is well settled that resort, to the noscitur a sociis principle,
would be justified only where the intention of the legislature, in
associating wider words with words of narrower significance, is
doubtful. 5 Clause 18 ii), of the Guidelines of 15th April, 2020, covers,
on the one hand, "other Ministries and Departments" and, on the
other, "officers under their control". There is no ambiguity,
whatsoever, in the clause. All offices, under the control of Ministries
and Departments of the Government of India, are expressly covered
by the said clause. The existence of control, by the Government of
India, over public Sector undertakings, is a truism, which cannot
brook denial. We cannot, therefore, hold that, in opening their offices,
and calling, to work, employees above a level analogous to that of
Deputy Secretary in the Government of India, PSUs infracted the 15th
April, 2020 Guidelines.
31. We reiterate that, in our view, any hyper-legalistic
interpretation of the various Clauses in the Guidelines issued by the
Central Government to tide over the COVID-19 crisis, would be
fundamentally misconceived. What is required, in these
circumstances, is a purposive and realistic, rather than a legalistic,
understanding of the Guidelines, and, thus viewed, we do not find that
the writ petition makes out any case of infraction therewith.
32. The reliance, by Mr. Aggarwal, on the earlier Order, dated 24th
March, 2020, issued by the MHA, and the Guidelines appended
thereto, is also, in our view, of no substance. The changing response,
S tate of Bombay v. Hospital Mazdoor S abha, AIR 1960 S C 610
of the country, to the COVID-19 pandemic, as necessitated periodical
provisions of the Guidelines, issued by the government. In each case,
such a provision has been preceded by exhaustive discussions and
deliberations, at the highest levels. The Guidelines dated 24th March,
2020 having been superseded by the Guidelines dated 15th April,
2020, any reliance to the former Guidelines, or the terms thereof,
would, in our view, be misconceived.
33. No case, therefore, exists, in our considered opinion, for grant
of either of the prayers in the writ petition.
34. The writ petition is, accordingly, dismissed.
CHIEF JUSTICE
C. HARI SHANKAR, J
MAY 01, 2020
kks/anb
