TaxTMI 
TaxTMI 
2019 (2) TMI 1960
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....12 in the strict sense of the term, nonetheless its hospital at Itanagar performs a public duty and in consequence would be amenable to the writ jurisdiction Under Article 226 of the Constitution on a liberal interpretation of the expression 'authority' in that Article. 3. The first Respondent joined the Ramakrishna Mission Hospital at Itanagar on 15 March 1980 as a General Duty Worker. He was regularised with effect from 1 August 1980 by a letter dated 23 July 1980. On 31 March 1982, the first Respondent was promoted to the substantive post of Nursing Aid. He was made permanent on 13 April 1984. Subsequently on 31 December 2005, he was promoted as an Office Assistant with effect from 1 October 2005. 4. The conditions of service of the employees of the hospital are governed by the Service Rules. Among them is Rule 18 which provides for superannuation in the following terms: 18. SUPERANNUATION (RETIREMENT): (i) A permanent employee/staff shall normally retire from the services of the Hospital after 35 years of service or an attaining the age of 60 (sixty) years. Provided further, the Management in the service of the Hospital may extend the....
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....nds for a part of its expenditure and was running a sixty bedded hospital which constitutes a public duty; and (ii) There was a decision of a Single Judge of the High Court in Satyabrata Chakraborty v. State of Arunachal Pradesh 2005 (4) GLT 150, holding that Ramakrishna Mission fell with the ctegory of 'other authorities' Under Articles 12 and 226 of the Constitution. The High Court held that this decision of the learned Single Judge which had held the field for thirteen years should not be disturbed. It was further held that the Appellant is running a very large hospital in the State and utilised public funds for a part of its operation and would be amenable to writ jurisdiction. While answering the preliminary issues against the Appellants, the High Court directed that the appeal be placed for hearing subsequently. 10. While entertaining the present proceedings, this Court by its order dated 19 November 2018 issued notice and granted a stay of the judgment and order of the High Court dated 6 April 2018. In pursuance of the order issuing notice, a counter affidavit has been filed on behalf of the Union of India through the Ministry of Tribal Affairs as w....
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....ted that each of the circumstances which weighed with the High Court in coming to the conclusion that the Appellants are amenable to the exercise of the writ jurisdiction Under Article 226 is contrary to the settled position in law. 14. On the other hand, Mr. A Tewari, learned Counsel appearing on behalf of the State of Arunachal Pradesh has placed reliance on the statement of facts contained in the counter affidavit, as noticed earlier. Learned Counsel submitted that the Ramakrishna Mission Hospital is the only hospital in the State of Arunachal Pradesh and hence, by virtue of its monopoly status, must be held to be amenable to the writ jurisdiction Under Article 226. That apart, it was urged that the hospital receives grants in aid from the State government. The function of conducting a hospital in the State of Arunachal Pradesh, it was urged, must be held to be a public function rendering the Appellants amenable to the jurisdiction of the High Court Under Article 226. 15. The rival submissions fall for consideration. 16. Ramakrishna Mission runs a 263 bedded hospital at Itanagar. The grant in aid which is provided by the State government covers the cost of running 60 be....
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.... in its widest form. Its objects include, inter alia to establish, maintain, carry on and assist schools, colleges, universities, research institutions, libraries, hospitals and take up development and general welfare activities for the benefit of the underprivileged/backward/tribal people of society without any discrimination. These activities are voluntary, charitable and nonprofit making in nature. The activities undertaken by the Mission, a non-profit entity are not closely related to those performed by the state in its sovereign capacity nor do they partake of the nature of a public duty. 20. The Governing Body of the Mission is constituted by members of the Board of Trustees of Ramakrishna Math and is vested with the power and authority to manage the organization. The properties and funds of the Mission and its management vest in the Governing Body. Any person can become a member of the Mission if elected by the Governing Body. Members on roll form the quorum of the annual general meetings. The Managing Committee comprises of members appointed by the Governing Body for managing the affairs of the Mission. Under the Memorandum of Association and Rules and Regulations of the....
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....ding on the management. 22. It was in the above circumstances that this Court came to the conclusion that the service conditions of the academic staff do not partake of a private character, but are governed by a right-duty relationship between the staff and the management. A breach of the duty, it was held, would be amenable to the remedy of a writ of mandamus. While the Court recognized that "the fast expanding maze of bodies affecting rights of people cannot be put into watertight compartments", it laid down two exceptions where the remedy of mandamus would not be available: 15. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to mandamus.... 23. Following the decision in Andi Mukta (supra), this Court has had the occasion to re-visit the underlying principles in successive decisions. This has led to the evolution of principles to determine what constitutes a 'public duty' and 'public function' and whether the writ of mandamus would be available to an individual who seeks to enforce her right. 2....
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....onal Crops Research Institute (2003) 4 SCC 225, a two judge Bench of this Court dealt with whether the International Crop Research Institute for the Semi-Arid Tropics ("ICRISAT") which is a non-profit research and training centre, is amenable to the writ jurisdiction Under Article 226. The dispute concerned the termination of employees of ICRISAT. The Court held that only functions which are similar or closely related to those that are performed by the State in its sovereign capacity qualify as 'public functions' or a 'public duty': 28. A writ Under Article 226 can lie against a "person" if it is a statutory body or performs a public function or discharges a public or statutory duty... ICRISAT has not been set up by a statute nor are its activities statutorily controlled. 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 undertake....
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....ic interest. The Bench elucidated on the scope of mandamus: 29. However, 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. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action...There cannot be any general definition of public authority or public action. The facts of each case decide the point. 29. More recently in K K Saksena v. International Commission on Irrigation and Drainage (2015) 4 SCC 670, another two judge Bench of this Court held that a writ would not lie to enforce purely private law rights. Consequently, even if a body is performing a public duty and is amenable to the exercise of writ jurisdiction, all its decisions would not be subject to judicial review. The Court held thus: ....
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.... the circumstances of the case. In setting up the hospital, the Mission cannot be construed as having assumed a public function. The hospital has no monopoly status conferred or mandated by law. That it was the first in the State to provide service of a particular dispensation does not make it an 'authority' within the meaning of Article 226. State governments provide concessional terms to a variety of organisations in order to attract them to set up establishments within the territorial jurisdiction of the State. The State may encourage them as an adjunct of its social policy or the imperatives of economic development. The mere fact that land had been provided on a concessional basis to the hospital would not by itself result in the conclusion that the hospital performs a public function. In the present case, the absence of state control in the management of the hospital has a significant bearing on our coming to the conclusion that the hospital does not come within the ambit of a public authority. 32. It has been submitted before us that the hospital is subject to Regulation by the Clinical Establishments (Registration and Regulation) Act 2010. Does the Regulation of h....
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.... in a situation where the contract of service is governed or regulated by a statutory provision. Hence, for instance, in K K Saksena (supra) this Court held that when an employee is a workman governed by the Industrial Disputes Act, 1947, it constitutes an exception to the general principle that a contract of personal service is not capable of being specifically enforced or performed. 34. It is of relevance to note that the Act was enacted to provide for the Regulation and registration of clinical establishments with a view to prescribe minimum standards of facilities and services. The Act, inter alia, stipulates conditions to be satisfied by clinical establishments for registration. However, the Act does not govern contracts of service entered into by the Hospital with respect to its employees. These fall within the ambit of purely private contracts, against which writ jurisdiction cannot lie. The sanctity of this distinction must be preserved. 35. For the above reasons, we are of the view that the Division Bench of the High Court was not justified in coming to the conclusion that the Appellants are amenable to the writ jurisdiction Under Article 226 of the Constitution as a....