TaxTMI 
TaxTMI 
2021 (7) TMI 472
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....mages without holding any inquiry contra to the legal niceties eventually setting aside the letter of termination in question as illegal and NONEST in the eyes of law pass any other order as this Honorable Court deems fit and proper to meet ends of justice. Said petitioner is a lady in person prosecuting her case from a distance place like Berhampur in Odisha the matter on hand deserves to be placed before the Honorable Court subject to discretion of the Court on merits having regard to the justiciability and the location of Respondent no.1 Ministry of Commerce and Industry (MoCI) under which authority Respondent no.2 Sabyasachi Ray is functioning subject to the administrative and financial control. Thus, this Court has got territorial jurisdiction to adjudication the subject." 2. On April 16, 2021 when this matter was first listed, this Court raised an issue on the maintainability of this petition against respondent No.2 i.e., The Gem and Jewellery Export Promotional Council ('GJEPC' for short). Additionally, this Court directed the respondent No.1 to file an affidavit, clarifying the position/status of respondent No.2 as an entity being financed and controlled by resp....
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....ondent No.2 deals with, are in the realm of trade and commerce, a subject which belongs in the Union List. The field in which GJEPC operates involves greater financial/economic aspects for generation of revenue in the process of export of commodities. This aspect coupled with the reply to the RTI application proves the substantial degree of control. 6. It is her case that, even the recruitment and appointment procedure contains similar conditions of service which conform with Article 311 of the Constitution. She states that although her appointment letter does not mention the applicability of CCS Rules but the same are echoed in the terms of employment. 7. The Petitioner argues that various decisions of the Supreme Court and the High Court have determined the following factors for ascertaining whether an organisation falls within the definition of "State" under Article 12 of the Constitution; A. Origin of the Company; B. Share Capital, whether owned by the government in entirety; C. Nature of Business and whether there is a monopoly status; D. Public Nature and function of the entity being of public importance related to government function....
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.... Additionally, various government notifications issued on various dates prove the fact that GJEPC has the characteristics of a government body which discharges public duties by generating revenue in the form of foreign exchange and strengthening the exchequer. 9. Mr. Vivekanand Mishra learned Counsel appears along with Mr. Aman Raj Gandhi on behalf of respondent No.2 and has at the very outset argued that the parameters essential for respondent No.2 to be declared as an entity within the meaning of "State" under Article 12 of the Constitution have not been met. He states that GJEPC is not a statutory body but rather a company incorporated under Section 25 of the Companies Act, 1956 (Section 8 of the Companies Act, 2013). The respondent No.2 has a voluntary membership and is not under statutory control. He also argued that the respondent No.2 neither possesses any powers to make laws nor issue binding directions amounting to law which govern its relationship with public or the affairs of public, their rights, duties, liabilities and / or other legal relations as being a necessary precondition under Article 13 of the Constitution. Even the functions performed by the respondent No.....
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....funds which are required for its day to day affairs. 12. The only funding received by the respondent No.2 from respondent No.1 is conditional and only when GJEPC makes an application to the respondent No.1 for a particular project, funds are provided to it. The Schemes for granting funds are notified on the website of respondent No.1 and are open for all. The funds are received for certain specific export promotion activities under the Market Access Initiative Scheme ("MAI scheme" for short) and Market Development Assistance Scheme ("MDA scheme" for short"). If these funds are sanctioned the same are used for the aforementioned specific schemes and no portion is utilised for any other activity beyond the said scheme. The funds / grants received from respondent No.1 do not meet any major expenses incurred by respondent No.2 and to that extent the grants received from Respondent No.1 are not substantial when compared to the total revenue generated by GJEPC. Mr. Mishra states that according to the EXIM Policy 1997-2002 formulated by the MOCI, all Export Promotion Councils, including GJEPC were granted an autonomous status, this status is further bolstered by the fact that the earni....
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....he matters of policy and on matters relating to contravention of codes of practice. These objects he states have remained unmodified even prior to the aforesaid judgement. However over time role and power of the government in respondent No.2 has decreased in the following manner:- I. Apart from clauses 5, 25 and 66 of the earlier AoA the remaining clauses referred to by the judgement of Raj Rajeshwar Dadhich (supra) have been retained in spirit. II. Clause 5 of the earlier AoA stated that all rights and privileges of the members shall be laid down in the bye-laws as framed by the Working Committee. The express power to frame bye-laws has been done away with and the rights and privileges of the members have been set out in the AoA itself and that there is no involvement of the Government. III. Clause 25 which used to state that the Secretary shall not be a member of the GJEPC and would be employed as a full time paid officer whose appointment would've been approved by the Government. However the current AoA the approval of the government for the appointment of the secretary has been done away with and the secretary has been made a part of the respondent No....
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.... No.1 is able to exercise control on GJEPC, even then such control by no stretch, is deep or pervasive for respondent No.2 to qualify as State. According to him, the grievance of the Petitioner with regard to her termination of employment is a purely private service dispute with GJEPC. The service conditions of the petition are not laid down by any statute nor are the employees carrying out any statutory functions. The present dispute has no public law character, nor is it a dispute arising in the course of discharge of any public function or public duty by respondent No.2 and it is for these reasons that the present petition is not maintainable. In this regard he has relied upon the following judgments:- i. Rotary Club Birla Nagar v. Rotary General, 2013 (4) MPLJ 185 ii. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology & Ors, (2002) 5 SCC 111 iii. Chander Mohan Khanna v. National Council of Education Research Training & Co, (1991) 4 SCC 578 16. Mr. Mishra has drawn my attention to the affidavit filed on behalf of respondent No.1 wherein it has been stated that the respondent No.2 is an autonomous body and that the Department of Commerce ex....
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....r invest monies and securities in any banks approved, on its behalf by the Union Government. Thus the company has no choice in selection of a Bank of its own choice. The government also appoints three officials in the board of management and the government also gives financial assistance to various projects of GJEPC and retains full control and supervision over the utilisation of the funds. Government auditors are deputed by the Department of Commerce to verify the utilisation of the government grants under various schemes such as the MDA, MAI, ASIDE, etc. She states that inspection teams are also sent routinely by the government for checking the progress of various export promotion activities under the MDA and MAI schemes; however the benefits of these schemes are received only by the registered members of the GJEPC. As per clause 33.5 of the AoA, GJEPC has to spend 50% of its revenue except for government aid for the benefit of the Public, in this case the exporters; and this would show that GJEPC is ultimately involved in public service. 19. The Petitioner argues that the Annual Report of the GJEPC giving details of the revenue, performance accountability along with the Audit....
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....nion of India & Ors. (2007) 5 SLR 186 (Cal) (DB) to state that a similarly placed Export Promotion Council i.e, Chemical and Allied Products Export Promotion Council ('CAPEXIL', for short) was held to be within the definition of "State" under Article 12 of the Constitution. Therefore she stated that in light of the judgement in the case of Ramanna Dayaram Shetty Vs. The International Airport Authority of India & Ors. (1979) 3 SCC 489 the cases of Rotary Club Birla Nagar (supra) and Chander Mohan Khanna(supra) are not applicable to the present case. In support of her case she has relied on the following case laws:- i. All India Garment Exporters Common Cause Guild And Ors. v. Union Of India & ANR, W.P.(C) 5093/1998 dated January 18, 2011 ii. Council for Leather Exports v. Commissioner of Income Tax (Appeals), 2018 SCC OnLine Mad 1030. iii. A.R. Abdul Gaffar v. Union Of India & Ors. ILR (2013) 1 Del 494 iv. Zee Telefilms Limited v. Union of India (2005) 4 SCC 649 v. Sukhdev Singh and Ors. v. Bhagatram Sardar Singh Raghuvanshi and Ors. (1975) 1 SCC 421 vi. BCCI Vs. Cricket Association of Bihar and Ors., (2015) 3 SCC 251 vi....
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....ion and is a body sponsored under the MOCI. 26. A reference has been made to the consolidated financial statements for the financial year ending March 31, 2018 to state that the organization has made significant growth during her tenure and that she has contributed towards the same as well. On the aspect of dues that remain payable to her she states, that her case based on the various case laws would show that she has not been paid her financial dues which have been illegally held back by the respondent No.2. She states that her service record is unblemished and her claim to Rs. 2 crores which are due to her have been withheld by the respondent No.2. She relies on a judgment of a Coordinate Bench of this Court in Robin Sharma vs. Apparel Training and Design WP (C) 4288/2020 decided on February 10, 2021 to state that she should be reinstated and be compensated with damages along with her financial dues. She states that GJEPC has acted in contravention to the said judgment and terminated the petitioner without holding an inquiry, wherein she has not been accorded an opportunity of being heard. She raises allegations of malafide on Sabyasachi Ray who is the Executive Director of th....
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.... inference of the Corporation being an instrumentality or agency of Government. 30. The Supreme Court in a subsequent Judgment, speaking through seven Hon'ble Judges in Pradeep Kumar Biswas (supra), has in para 40 held as under:- "40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, 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." 31. In K.K. Saksena v. International Commission on Irrigation and Drainage & Ors. (2015) 4 SCC 670, the Supreme Court considering a similar issue, has held as under:- "32. If the authority/body can be treate....
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....n be dealt with under this Article is also wider in scope. 34.In this context, the first question which arises is as to what meaning is to be assigned to the expression 'any person or authority'. By catena of judgments rendered by this Court, it now stands well grounded that the term 'authority' used in Article 226 has to receive wider meaning than the same very term used in Article 12 of the Constitution. This was so held in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691. In that case, dispute arose between the Trust which was managing and running science college and teachers of the said college. It pertained to payment of certain employment related benefits like basic pay etc. Matter was referred to the Chancellor of the Gujarat University for his decision. The Chancellor passed an award, which was accepted by the University as well as the State Government and a direction was issued to all affiliated colleges to pay their teachers in terms of the said award. However, the aforesaid Trust running the science college did not implement the award. Teachers filed the writ petition seeking ma....
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....public authority' for them means every body which is created by statute - and whose powers and duties are defined by statute. So government departments, local authorities, police authorities, and statutory undertakings and corporations, are all 'public authorities';. But there is no such limitation for our High Courts to issue the writ 'in the nature of mandamus'. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to 'any person or authority'. It can be issued 'for the enforcement of any of the fundamental rights and for any other purpose'. xx xx xx 20. The term 'authority' used in Article 226, in the context, must receive a liberal meaning like the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words 'Any person or author....
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....ere is an interest created by the Government in an institution to impart education, which is a fundamental right of the citizens, the teachers who impart education get an element of public interest in performance of their duties." In such a situation, remedy provided under Article 226 would be available to the teachers. The aforesaid two cases pertain to educational institutions and the function of imparting education was treated as the performance of public duty, that too by those bodies where the aided institutions were discharging the said functions like government institutions and the interest was created by the government in such institutions to impart education. 39. In G. Bassi Reddy v. International Crops Research Institute & Anr., the Court was concerned with the nature of function performed by a research institute. The Court was to examine if the function performed by such research institute would be public function or public duty. Answering the question in the negative in the said case, the Court made the following pertinent observations: "28...Although, it is not easy to define what a public function or public duty is, it can reasonably be said....
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....ivate body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function." 41. In Binny Ltd. v. V. Sadasivan the Court clarified that though writ can be issued against any private body or person, the scope of mandamus is limited to enforcement of public duty. It is the nature of duty performed by such person/body which is the determinative factor as the Court is to enforce the said duty and the identity of authority against whom the right is sought is not relevant. Such duty, the Court clarified, can either be statutory or even otherwise, but, there has to be public law element in the action of that body. 42. Reading of the categorisation given in Federal Bank Ltd., one can find that three types of private bodies can still be amenable to writ jurisdiction under Article 226 of the Constitution, which are mentioned at Sl. Nos. (vi) to (viii) in para 18 of the judgment extracted above. 43. What follows from a minute and careful reading of the ....
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....o perform such a statutory function. 46. In the present case, since ICID is not funded by the Government nor is it discharging any function under any statute, the only question is as to whether it is discharging public duty or positive obligation of public nature. 47. It is clear from the reading of the impugned judgment that the High Court was fully conscious of the principles laid down in the aforesaid judgments, cognizance whereof is duly taken by the High Court. Applying the test in the case at hand, namely, that of ICID, the High Court opined that it was not discharging any public function or public duty, which would make it amenable to the writ jurisdiction of the High Court under Article 226. The discussion of the High Court is contained in paras 34 to 36 and we reproduce the same for the purpose of our appreciation: "34. On a perusal of the preamble and the objects, it is clear as crystal that the respondent has been established as a scientific, technical, professional and voluntary non-governmental international organisation, dedicated to enhance the worldwide supply of food and fibre for all people by improving water and land management and the ....
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....t. 36. As we perceive, the only object of ICID is for promoting the development and application of certain aspects, which have been voluntarily undertaken but the said activities cannot be said that ICID carries on public duties to make itself amenable to the writ jurisdiction under Article 226 of the Constitution." 32. To establish whether the test laid down by the Supreme Court in Pradeep Kumar Biswas case are satisfied in the case in hand, it is necessary to have a look on the provisions of the MoA and also the AoA of the GJEPC. The provision relied on by respondent No.2 are as stated in paragraph 14 above. 33. I may, at this stage, reproduce the relevant clauses of the MoA and AoA, referred to by the petitioner, as under:- Clause 9 No alteration shall be made to this Memorandum of Association or to the Articles of Association of the Company which are for the time being inforce, unless the alteration has been previously submitted to and approved by the Central Government. Clause 2.1 Articles to be subject to export import Policy: The provisions of these articles shall be subject to those of the Export-Import Policy, as notified by the Central Government f....
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....ve any right to inspect any account or book or document of the Council, except as provided by law or authorized by the Committee or by a resolution of the Council in a general meeting. Provided that, the accounts and books of the Council shall be open for inspection by an officer duly authorized in this behalf by the Central Government for ascertaining or verifying the income and expenditure of the Council or for such other purposes as may, by agreement between the Council and the Central Government, be specified in this regard. Clause 44. INVESTMENT OF FUNDS Clause 44.1 Investment The funds of the Council, which are not required for current expenditure may be placed in fixed deposit with any scheduled bank or may be invested in any security in which trust property may lawfully, be invested under section 20 of the Indian Trusts Act, 1882, subject to such instructions as may be issued from time to time by the Government of India, in the Department of Public Enterprises, with reference to investments. Clause 47. POWERS OF THE CENTRAL GOVERNMENT Clause 47.1 Power to give directions (1) The Central Government shall have power to give directions to th....
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....uitment procedure contains similar conditions of service, which conform with Article 311 of the Constitution of India; (VII) GJEPC satisfies the test laid down by the Supreme Court in the various judgments inasmuch as it was set up with active patronage of the Department of Commerce in order to augment international trade policy; formation of various export promotion councils under the administrative control of the Department. These bodies were registered under the Companies Act and/or Societies Registration Act. (VIII) These councils function as the registering authority for exporters under the Foreign Trade Department of the Government. (IX) The respondent No.2 is discharging public duty on behalf of the Union of India to espouse the cause of export promotion by facilitating around 7000 members in foreign trading of gem and jewellery items. (X) Clause 48 of the AoA states alteration to MoA or Articles of Association shall not be carried out without the approval of the Central Government. (XI) Even the annual report along with Audit and Accounts report are reviewed in both houses of Parliament. 35. She also stated that the Government....
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....tioning of GJEPC. The respondent No.1 states that the only power exercised by the government is enumerated in clause 47 of the AoA. The said clause empowers the Central Government to give direction to the Council in the interest of national security, national economy and public interest. Surely the Government can have such a control on any person / entity within the country in the larger public interest. Connected to such a power is the power of the Central Government to call for reports with respect to property; affairs of the Council, foreign collaboration etc. Similarly, the alteration of AoA or MoA with the approval of the Central Government has to be read in conjunction with clause 47 of the AoA. Mr. Mishra is justified in stating that at no point of time, the grants exceeded more than 27%. 37. In the judgment of Raj Rajeshwar Dadhich (supra), the Rajasthan High Court had considered in paras 9 to 15, some of the salient features of the MoA and AoA as existed. The said paras are reproduced as under:- "(9) It is an admitted position of both the parties that the Council is a body registered under the Companies Act, 1958. The Council was formed by 8 individuals who app....
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....be managed by a Working Committee. 13. There shall be an elected Chairman and an elected Vice Chairman for the Council. The term of office of the Chairman shall be two years and that of the Vice- Chairman, one year. The Chairman and Vice Chairman shall be elected from amongst the elected members of the Working Committee and they shall be Chairman and Vice-Chairman respectively of the Working Committee, Committee of Administration and all other Committees of the Council. From among the Chairman and Vice-Chairman, atleast one of them shall be a person residing in bombay. 18. The Working Committee shall delegate such functions as it deems fit for the administration and management of the affairs of the Council to the Committee of Administration consisting of the Chairman, the Vice Chairman, six members nominated by the Chairman of the Council in consultation with the panel members of the Working Committee and two nominees of the Union Government. 25. The Secretary shall not be a member of the Council and shall be a full time and paid officer whose appointment will be approved by the Government. 34. There shall be a full time and paid Secretary and su....
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....t the Council has been established for furtherance of the interest of the Gemstone and Jewellery industry. The fact is that it came into the existence on account of the choice and agreement of few individual persons. The Government had not played any role in the creation of the Council. It is true that the Government provides funds to the Council but this is not the only source of income of the council. The Control which the Government of India exercises on it is by the large limited to oversee that the funds provided by it are utilised properly and are not misused by the Council. The entire functioning of the Council is carried on by the Working Committee. There is no direct interference of the Government of India in the functioning of the Council or its working. The Working Committee consists of dozens of persons and only 3 of them are nominated by the Government. They too do not have a power of veto in the management of the affairs of the Company. The general direction that the Government of India can give to the Council do not have any direct impact on the day today functioning of the Council. There is no indication in the Memorandum of Association or Articles of Association th....
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....n and parliamentary and governmental institutions in their various aspects; (2) to undertake study of courses and fundamental research relating to developments in constitutional law, conventions and practices, parliamentary matters; (3) to organise inter alia training programmes in constitutional problems and matters of current parliamentary importance; (4) to set up a legislative research and reference service for the benefit of all interested members of the Union Parliament and State legislatures irrespective of their party affiliations; (5) to undertake and provide for the publication of a journal and of research papers and of books and brochures with a view to disseminate democratic values and to foster broad based civil education and awareness, and in particular, to promote study of constitutional and parliamentary affairs; (6) to establish and maintain libraries and information services to facilitate the study of constitutional and parliamentary subjects and spread information in regard thereto; (7) to invite as and when feasible, scholars who may or may not be members of the Society, to take advantage of the facilities of....
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.... Society was not entitled to receive contributions from any indigenous source without government sanction. Since government money has been coming, the usual conditions attached to Government grants have been applied and enforced. If the Society's affairs were really intended to be carried on as a part of the Lok Sabha or Parliament as such, the manner of functioning would have been different. The accounts of the Society are separately maintained and subject to audit in the same way as the affairs of societies receiving government grants are to be audited. Government usually impose certain conditions and restrictions when grants are made. No exception has been made in respect of the Society and the mere fact that such restrictions are made is not a determinative aspect. xxxx xxxx xxxx 20. We have several cases of societies registered under Societies Registration Act which have been treated as 'State' but in each of those cases it would appear on analysis that either governmental business had been undertaken by the Society or what was expected to be the public obligation of the 'State' had been undertaken to be per....
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....overnment having five representatives nominated by the Government. Only because the financial aid is not to the extent it was required compared to the expenditure of the Company or that its audit is not being conducted by the Comptroller and Auditor General, it would not be appropriate to exclude the body from the purview of Article 12. Suffice to state that reliance was placed by the Court on Clause 2.65.1 of the handbook of the procedure published by the Ministry of Commerce and Industry which reads as under: "EPCs shall be autonomous and shall regulate their own affairs. However, if Central Government frames uniform by-laws for constitution and/or for transaction of business for EPCs, they shall adopt the same with such modifications as the Central Government may approve having regard to the subject-nature or functioning of such EPC". 42. Though it is not clear whether the said handbook of procedure continues to hold field as of now, in any case the petitioner has not placed any reliance on the said clause of handbook of procedure. Be that as it may, clause 2.65.1 only states, Export Promotion Councils shall be autonomous and shall....
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....text, bye-laws of the Mill would have to be seen. In the instant case, in one of the writ applications filed before the High Court, it was asserted that the Government of Uttar Pradesh held 50% shares in the Mill which fact was denied in the counter-affidavit filed on behalf of the State and it was averred that majority of the shares were held by canegrowers. Of course, it was not said that the Government of Uttar Pradesh did not hold any share. Before this Court, it was stated on behalf of the contesting respondents in the counter-affidavit that the Government of Uttar Pradesh held 50% shares in the Mill which was not denied on behalf of the Mill. Therefore, even if it is taken to be admitted due to non traverse, the share of the State Government would be only 50% and not entire. Thus, the first test laid down is not fulfilled by the Mill. It has been stated on behalf of the contesting respondents that the Mill used to receive some financial assistance from the Government. According to the Mill, the Government had advanced some loans to the Mill. It has nowhere been stated that the State used to meet any expenditure of the Mill much less almost the entire one, but, as a matter of ....
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....n the game of cricket and such activities are akin to state functions. Suffice to state, the judgment has no applicability to the facts of this case inasmuch as the GJEPC, is not performing state function. It is a body of individuals who are undertaking the export of gems and jewellery, being in the business of the same. They are working for the own benefit and pay duties on their export as per the regulation of the Central Government. I have already in detail dealt with the provision of MoA and AoA showing the control exercised by the Central Government. The judgments are clearly distinguishable and have no applicability. 45. The reliance placed by the petitioner on the judgment of the Supreme Court in Sukhdev Singh (supra) is misplaced as in the said Judgment the Supreme Court was dealing with entities like LIC, ONGC and IFCI, bodies constituted under different statutes to hold that they are "authorities" within the meaning of Article 12 of the Constitution. The Judgment has no applicability in the facts of the instant petition. 46. In so far as the reliance on the judgment of Bombay High Court in Meenakshi Patel & Ors. (supra) is concerned, the issue in that case was wheth....