The Union Co Operative Bank ... vs Returning Officer And District ...
2021 Latest Caselaw 3899 Guj

     C/SCA/3649/2021                              JUDGMENT DATED: 08/03/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 3649 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J.B.PARDIWALA                                  Sd/-

and

HONOURABLE MR. JUSTICE ILESH J. VORA                                  Sd/-


==========================================================

1     Whether Reporters of Local Papers may be allowed                 Yes
      to see the judgment ?

2     To be referred to the Reporter or not ?                          Yes

3     Whether their Lordships wish to see the fair copy                 No
      of the judgment ?

4     Whether this case involves a substantial question                 No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
   THE UNION CO OPERATIVE BANK LIMITED THROUGH GENERAL
    MANAGER KETANKUMAR JASHVANTLAL PATEL & 30 other(s)
                           Versus
 RETURNING OFFICER AND DISTRICT PLANNING OFFICER & 2 other(s)
==========================================================
Appearance:
VYOM H SHAH(9387) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,4,5
,6,7,8,9
MR RAXIT J DHOLAKIA(3709) for the Respondent(s) No. 4
MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3
==========================================================

    CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
          and
          HONOURABLE MR. JUSTICE ILESH J. VORA




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      C/SCA/3649/2021                              JUDGMENT DATED: 08/03/2021



                              Date : 08/03/2021

                             ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. By this writ application under Article 226 of the Constitution of India, the writ applicants have prayed for the following reliefs;

"(a) This Honourable Court be pleased to issue a writ of mandamus or in the nature of mandamus or any other writ that it may deem fit quashing and setting aside the action of the respondent No.1 in requisitioning the employees of the Petitioner No.1 Bank for election duty by 2 communications dated 02.02.2021 and all the cyclostyled show-cause notices dated 12.02.2021 as being without authority of law;

(b) During the admission, pendency and final hearing of the matter, be pleased to restrain the Respondent No.1 from acting in furtherance of show- cause notice dated 12.02.2021 and also restrain the Respondent No.1 in requisitioning the employees of the Petitioner Bank for election duties;

(c ) Grant such other and further relief/s as may be deemed fit and proper in the interest of justice;

(d) Be pleased to award cost of this petition;"

2. The writ applicant No.1 is a Cooperative Bank registered under the Gujarat Cooperative Societies Act, 1961. The writ applicants Nos.2 to 31 are the employees of the Bank. It appears that the respondent No.1, vide letter dated 24th December, 2020 addressed to the Bank called for the details of its employees. The Bank has four

C/SCA/3649/2021 JUDGMENT DATED: 08/03/2021

branches, three of those are situated within the city limits of the Ahmedabad District. The details called for were provided by the Bank to the respondent No.1 vide letter dated 31st December, 2020.

3. The respondent No.1, after collecting the necessary information, as referred to above, addressed two notices to the Bank dated 2nd February, 2021 respectively whereby the Bank was directed to serve the copies of the orders issued for 21+33 officers and clerks for performing election duties to the Municipal Elections for the year 2020-21.

4. It appears that the Bank informed the respondent No.1 that the work of "data migration" was being carried out in the Bank and the same being of a very sensitive nature, it would not be possible for the Bank to depute all its employees for the "election duty".

5. The Bank, on its own accord, deputed fifteen employees for the election work. The total number of employees working with the Bank are 71, out of which 67 are within Ahmedabad. The respondent No.1 requisitioned 54 officers and clerks from the Bank thereby leaving only 13 peons of the Bank.

6. In such circumstances, referred to above, the writ applicants came before this Court with the present writ application.

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7. Mr. Gautam Joshi, the learned counsel appearing for the writ applicants vehemently submitted that the Bank is not a "State" or the "Instrumentality of State" inasmuch as the State Government or any of its instrumentalities have no administrative control over the Bank. He would submit that it is a Cooperative Society registered under the provisions of the Act, 1961 and is also regulated by the provisions of the Banking Regulation Act, 1949. Mr. Joshi would submit that the insistence on the part of the respondents to ask the Bank to provide its employees in the Municipal Election could be termed as very unreasonable and arbitrary. In other words, Mr. Joshi would submit that the respondent No.1 could not have issued the impugned communications dated 02.02.2021 addressed to the Bank requesting it to provide its staff on a bank working day for attending the election duties as neither the Bank nor its employees are Governed by the Bombay Provincial Municipal Corporations Rules, 1994 or the Bombay Provincial Municipal (Election) Rules, 1994. They also do not fall within the definition of the term "local authority" as envisaged under the Representation of Peoples Act, 1950 and the Representation of Peoples Act, 1951. Mr. Joshi would submit that the election officer lacks complete jurisdiction to issue such requisition. In such circumstances, referred to above, Mr. Joshi prays that the impugned requisition and the resultant show-cause notices may be quashed and set aside.

8. On the other hand, this writ application has been

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vehemently opposed by Ms. Manisha Luvkumar Shah, the learned Government Pleader assisted by Ms. Aishwarya Gupta, the learned AGP appearing for the respondent No.1, Mr. Mihir Joshi, the learned senior counsel assisted by Mr. Rakshit Dholakiya the learned counsel appearing for the respondent No.4-State Election Commission and Mr. Satyam Chhaya, the learned counsel appearing for the respondent No.2-Ahmedabad Municipal Corporation.

9. All the learned counsel, referred to above, appearing for the respondents would submit that out of 67, only 9 employees turned up on the day and date of the election. The services of the writ applicants had to be requisitioned as the Ahmedabad Municipal Corporation could not have deputed its own employees to undertake the work of the conduct of the election. All the learned counsel would submit that even otherwise there was shortage of staff due to the Covid Pandemic and it was expected of the Bank to cooperate and render its services. It is submitted that as the employees of the Bank failed to report at the polling centers, the respondent No.1 found it very difficult to handle the situation at the last minute. It is submitted that the matter, as such, has become infructuous because the elections are over, however, the respondent would like to initiate appropriate legal action for defying the orders passed by a public authority like the respondent No.1. In such circumstances, referred to above, it is prayed on behalf of the respondents that this writ application may be rejected.

C/SCA/3649/2021 JUDGMENT DATED: 08/03/2021

10. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the respondents were justified in requisitioning the services of the writ applicants during the Municipal Elections?.

11. Section 14 reads thus;

"14. Election by State Election Commission:(1) The superintendence, direction and control of the preparation of electrol roll for, and conduct of, all the elections of the Corporations shall be vested in the State Election Commission.

(2) The State Election Commission shall hold the election as per the rules made by the State Government.

(3) The provision of section 7 of the Bombay General Clauses Act, 1904 shall not apply to anything done or suffered under the provision repealed or substituted by the Bombay Provincial Municipal Corporations (Gujarat Second Amendment) Act, 1993 (hereinafter referrd to as "the said Act").

(4) The Sate Election Commissioner shall be appointed within two months of the coming into force of the said Act.

(5) The State Government shall when so required by the State Election Commission, make available to it the staff as may be necessary for the discharge of the function conferred it by clause (1) of article 243K of the Constitution of India.

(6) The State Election Commissioner appointed immediately after the commencement of the said Act

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shall commence the work of delimitation of the constituencies to be known as wards within one month from the date of his appointment as per the last published census figures.

(7) Notwithstanding anything contained in the principal Act or in any decree, order or direction of any court, the election of the Corporation shall be held in accordance with the provisions of the Consutitution (Seventy-fourth Amendment) Act, 1992 on Municipalities and the provisions of the Bombay Provincial Municipal Corporations Act, 1949 as amended by the said Act and the rules made by the State Government in this behalf.]"

12. It is evident on plain reading of sub-section (5) of Section 14 that if the State Election Commission is in need of staff for the discharge of its functions conferred by the Clause (1) of Article 243K of the Constitution, then the State Government would be obliged to make it available.

13. In the aforesaid context, we may refer to a decision of this Court in the case of GNFC Employees Union Through Honorary Treasurer Kaushikkumar vs. Chief Electoral Officer, State of Gujarat & Ors., Special Civil Application No.15509 of 2012, decided on 09.11.2012, wherein the employees of the Gujarat Narmada Valley Fertilizers and Chemical Company Limited were asked to perform the election duties. The same was challenged before this High Court. The challenge was upheld in the following terms;

"1. We have heard Mr. G.M. Joshi, learned counsel appearing for the petitioner and Mr. P.C. Kavina, learned Senior counsel assisted by Mr. Biren

C/SCA/3649/2021 JUDGMENT DATED: 08/03/2021

Vaishnav appearing for respondent Nos.1 & 2. Mr. Kavina states that since a legal question is involved, the respondents do not propose to file any affidavit-

in-reply. Therefore, we have proceeded to take up the writ petition for final hearing with the consent of learned counsel for the parties.

2. This writ petition has been filed challenging the order dated 11.10.2012 passed by the District Election Officer, Bharuch - respondent No.2 herein by which the respondent No.2 has called upon the employees of Gujarat Narmada Valley Fertilizers and Chemical Company Limited (for short 'the Company') to perform the election duties.

3. Learned counsel for the petitioner has urged that the Company is not a State within the meaning of Article 12 of the Constitution of India as held by the Full Bench of this Court in Rambhai Ishwarbhai Paetl v. Gujarat State Fertilizers & Chemicals Limited, decided on 11.4.2011 passed in Special Civil Application No.6677 of 2009 connected with other writ petitions. The Full Bench has further held that the Government has no control over the Company and it is not a Government Company. Relevant paragraphs 21 & 22 of the Full Bench decision is extracted below :-

"21. In the present case, there is nothing on record to suggest that the State Government has any share in Gujarat Narmada Valley Fertilizers Company Limited as no specific evidence is brought on record. Gujarat State Fertilizers and Chemicals Limited , which has 19.80% share, is not a `State' within the meaning of Article 12 of the Constitution of India. The State of Gujarat has taken a specific plea that as it has no deep and pervasive administrative, functional and financial control and the respondent-Company is an entity managed by its Board of Directors.

22. We have noticed that G.N.F.C. has been constituted under the Companies Act and not by any

C/SCA/3649/2021 JUDGMENT DATED: 08/03/2021

State Act. The State Government has no role in the matter of functioning of the Company. It does not exercise any financial, functional or administrative control over the Company. Acquisition of shares and other matters pertaining to management and affairs of the Company are governed under the Companies Act. The business and other activities of the Company are purely commercial in nature. It does not perform any public function nor any public duty. The Company do not carry on any business for the benefit of public. Thus, as the cumulative effect together shows that Gujarat Narmada Valley Fertilizers Company Limited is not an instrumentality of the `State'."

4. Learned Senior Counsel Mr. P.C. Kavina appearing for the respondents has placed reliance on Section 159 (2) of the Representation of the People Act, 1951 and has urged that in view of clause (iv) of sub- section (2) to Section 159, the Company is substantially financed by the State Government and, therefore, it could be treated to be controlled by the State Government and, therefore, its employees could be directed by the District Election Officer to perform the election duties. Section 159 of the Representation of the People Act, 1951 is extracted as under :-

"159. Staff of certain authorities to be made available for election work :-

(1) The authorities specified in sub-section (2) shall, when so requested by a Regional Commissioner appointed under clause (4) of Article 324 or the Chief Electoral Officer of the State, make available to any returning officer such staff as may be necessary for the performance of any duties in connection with an election.

(2) The following shall be the authorities for the purpose of sub-section (1), namely :-

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(i) every local authority;

(ii) every university established or incorporated by or under a Central, Provincial or State Act;

(iii) a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);

(iv) any other institution, concern or undertaking which is established by or under a Central,

Provincial or State Act or which is controlled, or financed wholly or substantially by funds provided, directly or indirectly, by the Central Government or a State Government]"

5. We are not in agreement with the argument of learned counsel for the respondents in view of the fact that in Full Bench decision in paragraph 21, it has been mentioned that the share of the Government is only 19.80%. Even assuming that the share of the Government has increased to about 22%, even then it will not become a Government Company or a State within the meaning of Article 12 of the Constitution of India or it can be treated to be substantially financed and controlled by the State Government. Therefore, the District Election Officer could not have called on the employees of the Company to perform the election duties.

6. For the reasons given above, this writ petition succeeds and is allowed. The impugned order dated 11.10.2012 passed by the District Election Officer, Bharuch - respondent No.2 (Annexure C to the writ petition) and any other subsequent communications are quashed. A writ of mandamus is issued to the respondents not to call on the employees of the Gujarat Narmada Valley Fertilizers and Chemical Company Limited to perform the election duties.

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Parties shall bear their own costs. Direct service today is permitted."

14. Thus, the writ applicants could be said to have made out a case in their favour having regard to the position of law as discussed above. However, it is well settled legal position that prerogative writs under Article 226 of the Constitution can be issued only in grave cases where the subordinate Tribunals or bodies or officers act wholly without jurisdiction, or in excess of jurisdiction, or in violation of principles of natural Justice, or refused to exercise jurisdiction vested in them, or there is error apparent on the face of record which has resulted in manifest injustice. In the case of Sangram Singh vs. Election Tribunal, Kotah [AIR 1955 SC 425], in para 14 of the judgment the Supreme Court has observed as under:

"That, however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, and should not, act as courts of appeal under Article

226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognized lines and not arbitrarily ; and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into courts of appeal or revision to set right mere errors of law, which do not occasion injustice in a broad and general sense, for, though no Legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in

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mind the policy of the Legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case."

15. In M. Padmanabha Iyengar vs. Government of A.P. reported in AIR 1990 AP 357, Jeevan Reddi, J. (as His Lordship then was) observed as follows:

"It must also be remembered that, the remedy under Article 226 is a discretionary one. The Court is not bound to interfere merely on the establishment of an irregularity or illegality. The Court must further be satisfied that such interference is called for to meet, or to further, the ends of justice. If by interfering in the matter the interests of justice are going to suffer, this Court will withhold its arm; (see Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425 and Venkateswara Rao v. Government of Andhra Pradesh AIR 1966 SC 828)."

16. A Division Bench of this High Court in the case of Saurashtra Paper and Board Mills Pvt Ltd vs. State of Gujarat and others, reported in (1992) 2 GLR 871 observed as under:

"It is a settled principle of law that the remedy under Article 226 of the Constitution of India is discretionary in nature and in a given case, even if some action or order challenged in the petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the parties."

17. It has been rightly observed that the legal

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formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations not to take it to the logical end, the High Court would be failing in its duty if it does not notice the equitable consideration and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render the High Court a normal Court of Appeal, which it is not.

18. We could have disposed of this writ application by passing a short order saying that nothing survives in the matter as the election is over. However, we do not want such a thing to be repeated again in future. It was expected of the persons like the writ applicants to extend their helping hand to the State Government in difficult times like the Covid Pandemic. Mr. Joshi would like to pursue this matter despite the fact that the election is over as he has an apprehension that some disciplinary action may be taken against his clients. It is in this regard that we do not want to help the writ applicants. At the same time, we do not even say that the necessary action be taken for defying the orders issued by the respondent No.1. If the respondents intend to initiate some proceedings in accordance with law, they may do so.

19. This matter reminds us of a true incident that was

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reported by the "Ahmedabad Mirror" on 5th March, 2021. An employee working for the government's mid-Day meals scheme by name Jayesh Vyas was assigned election duty as a peon at the Mahika polling station. Jayeshbhai was taken ill all of a sudden and was not in a position to report to the polling station. In such circumstances, his 22 year old daughter by name Miral Vyas went before the Deputy Mamlatdar on the date of polling and requested that she may be permitted to discharge the necessary duties in place of her father who has been taken ill. The Deputy Mamlatdar was shocked to learn from Miral Vyas that she was a final year C.A. student. The Deputy Mamlatdar and others informed Miral Vyas that she may go back home and attend her ailing father, but Miral insisted and requested that an ID Card be made for her. Ultimately, the Deputy Mamlatdar issued an ID Card and permitted Miral Vyas to discharge the duties of a peon on the date of polling. The Deputy Mamlatdar was so touched by the love of Miral for her father and respect for dignity of labour that his eyes welled up. In the words of the Deputy Mamlatdar, as reported by the Ahmedabad Mirror "it indeed made me cry. I am also proud of this young girl with a heart full of compassion. At that young age, she knows that no job is big or small. Her parents are quite blessed to have her as their daughter." We salute citizens like Miral who stood up at a crucial hour as a disciplined citizen of this Country to extend her helping hand on the date of the polling in place

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of her ailing father. We rarely come across such instances. We salute Ms. Miral Vyas for this gesture shown by her.

20. With the aforesaid, this writ application stands disposed of.

(J. B. PARDIWALA, J)

(ILESH J. VORA,J)

Vahid