TaxTMI 
TaxTMI 
2021 (4) TMI 1278
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....itory of Delhi and other Authorities under different labour welfare legislations. The reliefs sought are set out in later part of the judgment. 2. At the outset, a preliminary objection was taken for and on behalf of DGC, the main contesting Respondent, questioning the maintainability of the petitions and thus, the parties were called upon to address arguments on maintainability. As maintainability is a common thread that runs in all the petitions and goes to the root of the matter, the objection is taken up and decided at the threshold, by a common judgment. WP(C) 3403/2020 3. Petitioner is a Union of the Employees of DGC and petition has been filed on behalf of 59 members, who are permanent employees of the Food and Beverages Department of DGC, essentially seeking quashing of the decision of DGC terminating their services and a mandamus directing the Official Respondents to take action against DGC for removing the Petitioners from permanent employment during Pandemic Covid-19 as well as to direct DGC to permit them to join their permanent employment, amongst other reliefs as follows:- "1. Writ, order or direction in the nature of MANDAMUS or any other appr....
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....he illegal termination of the employees amid the Pandemic COVID-19 by the Respondent No. 6 as the Respondent No. 6 is using the Government Charity of free land of Respondent No. 5 (of Rs. 55,779 Crores). 6. Writ, order or direction in the nature of MANDAMUS or any other appropriate writ, order or direction thereby directing the Respondent No. 1, 2, 3 and 4 to prosecute and take stern action against the Respondent No. 6 i.e. Board of Management of 'The Delhi Golf Club' under Section 58 of the Disaster Management Act, 2005; 7. Writ, order or direction in the nature of MANDAMUS or any other appropriate writ, order or direction thereby ordering for the prosecution of the Board of Management of Respondent No. 6 for willful non compliance of the Orders/directions and advisory issued by the Respondent No. 1 to 4 during the outbreak of the pandemic COVID-19. 8. Writ, order or direction in the nature of MANDAMUS or any other appropriate writ, order or direction thereby directing the Respondent No. 1, 2, 3, 4 and 5 to act upon the representations made by Petitioner from ANNEXURE P-10 to ANNEXURE P-14 of the present Writ petition. ....
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..... 4. Writ, order or direction in the nature of MANDAMUS or any other appropriate writ, order or direction thereby directing the Respondent No. 1 to 5 to ensure that the Petitioners are not stopped from performing their duties during Pandemic COVID-19 and further to ensure the continuity of the employment of the Petitioners in view of the emergent situations arises due to the pandemic COVID-19. 5. Writ, order or direction in the nature of MANDAMUS or any other appropriate writ, order or direction thereby directing the Respondent No. 1 and 2 to act upon the Order dated 29.03.2020 & 20.03.2020 bearing No. D.O. No. M-11011/08/2020/Media issued by the Respondent No. 1 and 2 respectively prohibiting the illegal termination of the employees amid the Pandemic COVID-19 by the Respondent No. 6 as the Respondent No. 6 is using the Government Charity of free land of Respondent No. 5 (of Rs. 55,779 Crores). 6. Writ, order or direction in the nature of MANDAMUS or any other appropriate writ, order or direction thereby directing the Respondent No. 1, 2, 3 and 4 to prosecute and take stern action against the Respondent No. 6 i.e. Board of Management of ....
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....espondent No. 4 not to grant Principal Employer Registration Certificate to the Management of DGC and to cancel the same, if already granted. The prayers in the writ petition are as follows:- "1. Writ, order or direction in the nature of MANDAMUS or any other appropriate writ, order or direction thereby directing the Respondent No. 1 to 4 to get prohibited the deployment of the Contract Labour by forwarding the application of the Petitioner Under Section 10 of the Contract Labour (Regulation & Abolition) Act, 1970 along with AGENDA NOTE to the Respondent No. 6 i.e. the State Advisory Contract Labour Board for prohibition of deployment of contract labour/contractor in the Food & Beverages Department of the Delhi Golf Club under Section 4 of the Contract Labour (Regulation & Abolition) Act, 1970. 2. Writ, order or direction in the nature of MANDAMUS or any other appropriate writ, order or direction thereby directing the Respondent No. 6 to take note of the Agenda for prohibition of deployment of contract labour/contract in the Food & Beverages Department of the Delhi Golf Club and NOTIFY the same in the OFFICIAL GAZZETTE prohibiting the deployment of the....
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....everages Department of the Delhi Golf Club are procured as required under Food Safety & Standards Act, 2006. 8. Writ, order or direction in the nature of MANDAMUS or any other appropriate writ, order or direction thereby directing the Respondent No. 10 to take action against Respondent No. 11, 12, 13, 14 & 15 for contravening various provisions of the Factories act more particularly for not obtaining requisite food processing license for Kitchen of the Food & Beverages Department of the Delhi Golf Club. 9. Writ, order or direction in the nature of MANDAMUS or any other appropriate writ, order or direction thereby directing the Respondent No. 10 to ensure that the requisite License for food processing in the kitchen of the Food & Beverages Department of the Delhi Golf Club as required/mandatory under Section 2(m) of the Factories Act, 1948. 10. Writ, order or direction in the nature of MANDAMUS or any other appropriate writ, order or direction thereby directing the Respondent No. 1 to 4 to implement the Order dated 7/8/2020 passed by the Labour Officer, New Delhi District, in its letter & spirit. 11. Any other Writ, Order o....
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....special powers. It was contended that reading of the petitions shows that Petitioners have been unable to make out a case that DGC is in any manner funded or controlled by Government of India or that its functions fall in the realm of public functions. 8. It was next submitted that no doubt DGC has been granted land measuring 179 acres by Government of India, through a registered lease deed, however, this is only a lessor-lessee relationship, governed by terms of the lease deed. Merely because the lease deed is executed by the Government as a lessor is not enough to bring DGC within the definition of State or public authority. Under the lease, the possession and user of the land subsists exclusively with DGC, to the exclusion of all others and statutory dues and taxes are paid in accordance with law. 9. In support of his arguments, Mr. Sethi relied on the judgment in Air Vice Marshall J.S. Kumar vs. Governing Council of Air Force Sports Complex and Anr., 2006 (86) DRJ 711 (DB), wherein the Division Bench of this Court held that a writ petition cannot lie against a private body not performing any public function and since Air Force Sports Complex was only providing recreation ....
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....sources. Accordingly, management decided to engage a specialized agency to provide the entire gamut of food and beverage services, with no exposure or outgo to DGC. In fact, by handing over the operations and outsourcing them, DGC shall benefit in as much as the agency shall pay to cover the cost of infrastructure like space, air-conditioning and other incidental provisions. This is purely an economic and commercial decision as a matter of policy and is not open to judicial review under Article 226 of the Constitution of India. 12. It was pointed out that DGC is registered under the Shops and Establishments Act, 1954 and in accordance with Section 30 of the said Act, only one month's notice or salary in lieu thereof is payable while terminating the services of an employee and the said provision has been complied with. Albeit none of the provisions of the I.D. Act apply to DGC, however, retrenchment compensation to the tune of Rs. 10,05,20,034.00 was paid to all the 59 employees on 28.05.2020 and a sum of Rs. 73,36,865/- has been paid on 29.05.2020 to the 7 Executives. 13. Per contra, Ms. Sunita Bhardwaj, learned counsel for the Petitioners controverted the stand taken by ....
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....t to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the 'person or authority' to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied. 17. The Supreme Court in Anadi Mukta upon examining the scope and ambit of the expression 'authority' used in Article 12 and in Article 226 of the Constitution was of the opinion that the expression "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant and determinative element is the nature of the duty imposed on the body. This is a striking departure from the English law. "The term "authority" used in Article 226, in the conte....
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....Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for the violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution, which is much wider than Article 32. 33. Thus, it is clear that when a private body exercises its public functions even if it is not a State, the aggrieved person has a remedy not only under the ordinary law but also under the Constitution, by way of a writ petition under Article 226......" ....
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....tor in this country, in respect of all international and national level sports. The annual reports placed by it on the record also reveal that though the IOA is autonomous from the Central Government, in its affairs and management, it is not discharging any public functions. On the contrary, the funding by the government consistently is part of its balance sheet, and IOA depends on such amounts to aid and assist travel, transportation of sportsmen and sports managers alike, serves to underline its public, or predominant position. Without such funding, the IOA would perhaps not be able to work effectively. Taking into consideration all these factors, it is held that the IOA is "public authority" under the meaning of that expression under the Act." 16. Reliance was also placed on the decision of the Central Information Commission in Amardeep Walia vs. Chandigarh Lawn Tennis Association (File No. CIC/LS/C/2009/900377), wherein it was held as follows:- "19. The germane of the above judgments is that for a private entity to qualify to be a public authority, substantive financing does not mean 'majority' financing. What is important is that the funding by the ap....
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....he control of the Central Government as the Ministry of Urban Development has leased land measuring 179 acres for promotion of Golf at a prime location on nominal ground rent. This apart, Ministry exercises direct control over the affairs and in the administration of DGC by nominating three serving IAS officers as Directors, with full voting rights and control in the Managing Committee. Ms. Bhardwaj submitted that DGC has taken an incorrect stand that it is a private entity with no control of the Government and places reliance on provisions of the lease deed, which was signed by the President of India as Lessor and DGC as the Lessee, more particularly Clause 21, which according to her, clearly evidences control of the Government in management and administration of DGC. According to her the said Clause casts a responsibility on DGC to inform the Ministry, from time to time, of the expiry of the terms of the members of the Management Committee and other aspects relating thereto and also provides for regulating memberships of Government servants in the club. 20. Concisely and pithily put, the argument is that though DGC is not State under Article 12 of the Constitution of India, bu....
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....it petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1]. The present case attracts applicability of the first two contingencies. Moreover, as noted, the petitioners' dealership, which is their bread and butter, came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings. 8. The appeals are allowed. The impugned judgment of th....
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....Private Ltd. and Ors. vs. Union of India and Ors., 2020(4) SCC 810 is a complete answer to the Petitioners' contentions where the Court observed as follows:- "37. It cannot be disputed that the lockdown measures enforced by the Government of India under the Disaster Management Act, 2005, had equally adverse effect on the employers as well as on employees. Various industries, establishments were not allowed to function during the said period and those allowed to function also could not function to their capacity. There can be no denial that lockdown measures which were enforced by the Government of India had serious consequences both on employers and employees. The period of Unlock having begun from 1-6-2020 and even prior to that some of the industries were permitted to function by the Government of India by different guidelines, most of the industries and establishments have reopened or are reopening, require the full workforce. 38. As noted above, all industries/establishments are of different nature and of different capacity, including financial capacity. Some of the industries and establishments may bear the financial burden of payment of wages....
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....emselves submit a request to the Labour Authorities concerned who are entrusted with the obligation under the different statute to conciliate the dispute between the parties who on receiving such request, may call the employees trade union/workers association/workers concerned to appear on a date for negotiation, conciliation and settlement. In the event a settlement is arrived at, that may be acted upon by the employers and workers irrespective of the Order dated 29-3-2020 issued by the Government of India, Ministry of Home Affairs. 41.2. Those employers' establishments, industries, factories which were working during the lockdown period although not to their capacity can also take steps as indicated in Direction 41.1. 41.3. The private establishments, industries, factories shall permit the workers/employees to work in their establishment who are willing to work which may be without prejudice to rights of the workers/employees regarding unpaid wages of above 50 days. The private establishments, factories who proceed to take steps as per Directions 41.1 and 41.2 shall publicise and communicate about their such steps to workers and employees for the....
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....e (i) of clause (a) of Section 2] established by or under any law made by Parliament, the Central Government shall be the appropriate Government." 29. Therefore, the provisions of Chapter V-B only apply to factory, mining and plantation and DGC apparently falls in none of these categories. Petitioners are taking a self-contradictory stand in as much as, while on one hand it is alleged that there are violations of the provisions of the I.D. Act, on the other hand, instead of pursuing remedies under the said Act, Petitioners insist on invoking the jurisdiction of this Court. 30. Affidavit was filed on behalf of Respondent No. 5 in W.P.(C) 3403/2020, wherein a categorical stand is taken by the Ministry of Housing and Urban Affairs that DGC is the lessee of land measuring 179 acres with effect from 08.11.1963 and the lease was extended from time to time. However, Ministry does not have any control over or role in the day-to-day functioning and administration of DGC. Affidavit has also been filed on behalf of Respondent No. 4/Disaster Management Committee, Govt. of NCT of Delhi, stating that vide MHA Order dated 17.05.2020 the earlier order dated 29.03.2020 has been withdrawn and ....
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.... certificate can be issued. Therefore, the application will be considered only once the said certificate is surrendered. 33. I have heard learned Senior Counsel for DGC and counsel for the Petitioners as well as counsels for the other Respondents in all the petitions. 34. In view of the preliminary objection raised by DGC, the foremost issue that arises for consideration is the maintainability of the present petitions before this Court under Article 226 of the Constitution of India. 35. Article 226 of the Constitution of India deals with powers of High Courts to issue writs, orders or directions to any person or authority and to enforce rights conferred by Part-III thereof and for any other purpose. It has been observed by the Supreme Court in several judgments that the expansive and extraordinary power of the High Court under Article 226 of Constitution is as wide as the amplitude of the language used therein, but at the same time Supreme Court and other Courts have been laying down the clear restraints and constraints on exercise of that power. In Air Vice Marshall J.S. Kumar (supra), the Division Bench held that the language of Article 226 cannot be interpreted and unde....
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....tion or discharged a public duty. In our opinion the AFSC is not performing a public function nor discharging a public duty. Hence, no writ lies against it. 31. The correct interpretation of the aforesaid words in Article 226 is that a writ can ordinarily be issued to a person to whom writs were traditionally issued by British Courts on well established principles. Similarly, the words, "for any other purpose" have to be interpreted in the narrower sense to mean that a writ can ordinarily be issued for the purpose for which writs were traditionally issued by British Courts on well established principles. The British Courts did not ordinarily issue writs to private persons except a writ of habeas corpus. 32. No doubt the power to issue writs under Article 226 is wider than those of the British Courts vide Dwarka Nath v. Income Tax Officer, AIR 1966 SC 81, but in our opinion they are not so wide as to permit Judges to do anything they like in writ jurisdiction. There are well settled principles governing the exercise of jurisdiction under Article 226 as laid down in various decisions of the Supreme Court, and these principles have laid down several limit....
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....be binding upon the Provincial Government, they must not only be binding upon the Governments established in the Indian States, they must also be binding upon District Local Boards, Municipalities, even Village Panchayats and Taluk Boards, in fact, every authority which has been created by law and which has got certain power to make laws, to make rules, or make bye-laws. If that proposition is accepted and I do not see anyone who cares for fundamental rights can object to such a universal obligation being imposed upon every authority created by law then, what are we to do to make our intention clear? There are two ways of doing it. One way is to use a composite phrase such as 'the State', as we have done in Article 7; or, to keep on repeating every time, 'the Central Government, the Provincial Government, the State Government, the Municipality, the Local Board, the Port Trust, or any other authority'. It seems to me not only most cumbersome but stupid to keep on repeating this phraseology every time we have to make a reference to some authority. The wisest course is to have this comprehensive phrase and to economise in words. " 38. While referring ....
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.... in the development of a policy of public administration through separate corporations which would operate largely according to business principles and be separately accountable. The public corporation, therefore, became a third arm of the Government. The employees of public corporation are not civil servants. Insofar as public corporations fulfil public tasks on behalf of Government, they are public authorities and as such, subject to control by Government. The public corporation being a creation of the State is subject to the constitutional limitation as the State itself. The governing power wherever located must be subject to the fundamental constitutional limitations. The ultimate question which is relevant for our purpose is whether the Corporation is an agency or instrumentality of the Government for carrying on a business for the benefit of the public. " 40. The Supreme Court in Zee Telefilms Ltd. (supra), after noticing the observations of the Constitution Bench, as above, observed that because of the change in socio-economic policies of the Government, by a judicial interpretation, wider meaning was given to the expression 'other authorities' and this was primar....
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....termining when a Corporation can be said to be an instrumentality or agency of the Government. Relevant para is as under:- "9. The tests for determining as to when a corporation can be said to be an instrumentality or agency of Government may now be culled out from the judgment in the International Airport Authority case [(1979) 3 SCC 489]. These tests are not conclusive or clinching, but they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression "other authorities ", it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression. A wide enlargement of the meaning must be tempered by a wise limitation. We may summarise the relevant tests gathered from the decision in the International Airport Authority case [(1979) 3 SCC 489] as follows: xxx xxx xxx" 44. Since it was held in Ajay Hasia (supra) that even a Society registered under the Societies Registration Act could be an instrumentality of the State, a conflict arose with the earlier j....
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....espect to Board of Control for Cricket in India (Board) in Zee Telefilms Ltd. (supra) as under:- 1. The Board is not created by a statute. 2. No part of the share capital of the Board is held by the Government. 3. Practically no financial assistance is given by the Government to meet the whole or entire expenditure of the Board. 4. The Board does enjoy a monopoly status in the field of cricket but such status is not State-conferred or State-protected. 5. There is no existence of a deep and pervasive State control. The control if any is only regulatory in nature as applicable to other similar bodies. This control is not specifically exercised under any special statute applicable to the Board. All functions of the Board are not public functions nor are they closely related to governmental functions. 6. The Board is not created by transfer of a government-owned corporation. It is an autonomous body. 47. Applying the principles in Pradeep Kumar Biswas (supra) to these facts, the Supreme Court held as under:- "24. To these facts if we apply the principles laid down by the seven-Ju....
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....cket at any level in India as well as abroad. 27. Assuming that these facts are correct the question then is, would it be sufficient to hold the Board to be a State for the purpose of Article 12? 28. There is no doubt that Article 19(1)(g) guarantees to all citizens the fundamental right to practise any profession or to carry on any trade, occupation or business and that such a right can only be regulated by the State by virtue of Article 19(6). Hence, it follows as a logical corollary that any violation of this right will have to be claimed only against the State and unlike the rights under Articles 17 or 21, which can be claimed against non-State actors including individuals, the right under Article 19(1)(g) cannot be claimed against an individual or a non-State entity. Thus, to argue that every entity, which validly or invalidly arrogates to itself the right to regulate or for that matter even starts regulating the fundamental right of the citizen under Article 19(1)(g), is a State within the meaning of Article 12 is to put the cart before the horse. If such logic were to be applied, every employer who regulates the manner in which his employee work....
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....or a company carrying on any statutory or public duty. A private body or a person may be amenable to writ jurisdiction only where it may become necessary to compel such body or association to enforce any statutory obligations or such obligations of public nature casting positive obligation upon it. We don't find such conditions are fulfilled in respect of a private company carrying on a commercial activity of banking. Merely regulatory provisions to ensure such activity carried on by private bodies work within a discipline, do not confer any such status upon the company nor put any such obligation upon it which may be enforced through issue of a writ under Article 226 of the Constitution. Present is a case of disciplinary action being taken against its employee by the appellant Bank. The respondent's service with the Bank stands terminated. The action of the Bank was challenged by the respondent by filing a writ petition under Article 226 of the Constitution of India. The respondent is not trying to enforce any statutory duty on the part of the Bank. That being the position, the appeal deserves to be allowed. " 49. Thus, what emerges is that ordinarily no writ shall lie ....
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....ial or economic affairs in the public interest. This may happen in a wide variety of ways. For instance, a body is performing a public function when it provides 'public goods' or other collective services, such as health care, education and personal social services, from funds raised by taxation. A body may perform public functions in the form of adjudicatory services (such as those of the criminal and civil courts and tribunal system). They also do so if they regulate commercial and professional activities to ensure compliance with proper standards. For all these purposes, a range of legal and administrative techniques may be deployed, including rule making, adjudication (and other forms of dispute resolution); inspection; and licensing. Public functions need not be the exclusive domain of the State. Charities, self-regulatory organisations and other nominally private institutions (such as universities, the Stock Exchange, Lloyd's of London, churches) may in reality also perform some types of public function. As Sir John Donaldson, M.R. urged, it is important for the courts to 'recognise the realities of executive power' and not allow 'their ....
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....dies in the course of their public functions are the subject-matter of judicial review. In the following two situations judicial review will not normally be appropriate even though the body may be performing a public function: (a) Where some other branch of the law more appropriately governs the dispute between the parties. In such a case, that branch of the law and its remedies should and normally will be applied; and (b) where there is a contract between the litigants. In such a case the express or implied terms of the agreement should normally govern the matter. This reflects the normal approach of English law, namely, that the terms of a contract will normally govern the transaction, or other relationship between the parties, rather than the general law. Thus, where a special method of resolving disputes (such as arbitration or resolution by private or domestic tribunals) has been agreed upon by the parties (expressly or by necessary implication), that regime, and not judicial review, will normally govern the dispute." 23. The counsel for the respondent in Civil Appeal No. 1976 of 1998 and for the appellant in the civi....
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....ties to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. 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. Sometimes, it is difficult to distinguish between public law and private law remedies. According to Halsbury's Laws of England, 3rd Edn., Vol. 30, p. 682, "1317. A public authority is a body, not nec....
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....of a duty or a statutory duty but mandamus will not lie for an order of reinstatement to an office, which is essentially of a private character or to resolve private disputes. Relevant passage is as follows:- "26. The facts which have been narrated earlier clearly show that ICRISAT does not fulfil any of these tests. It was not set up by the Government and it gives its services voluntarily to a large number of countries besides India. It is not controlled by nor is it accountable to the Government. The Indian Government's financial contribution to ICRISAT is minimal. Its participation in ICRISAT's administration is limited to 3 out of 15 members. It cannot therefore be said that ICRISAT is a State or other authority as defined in Article 12 of the Constitution. xxx xxx xxx 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 (Praga Tools Corpn. v. C.A. Imanual [(1969) 1 SCC 585: AIR 1969 SC 1306], Shri Anadi Mukta Sadguru Trust v. V.R. Rudani [(1989) 2 SCC 691] SCC at p. 698 and VST Industries Ltd. v. Workers' Union [(2001) 1 S....
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....anpur, Uttar Pradesh vs. Satrughan Nishad & Ors., (2003) 8 SCC 639, the Supreme Court had the occasion to consider the issue again in the context of 'other authority' under Article 12. The Appellant was a cooperative society registered under the U.P. Cooperative Societies Act. Respondents had filed writ petitions before the High Court challenging the discontinuation of their long services, spanning over 5 to 12 years, without notice and retrenchment compensation. High Court overruled the objection of the Mill that writ was not maintainable as the Respondent/Mill was not an instrumentality of the State. Supreme Court held that the Mill was not a State, despite the fact that 50% Shares of the Society were held with the State Government and out of 15 members in the Management Committee, 5 were nominated by the State Government. Relevant paras are as under:- "8. From the decisions referred to above, it would be clear that the form in which the body is constituted, namely, whether it is a society or a cooperative society or a company, is not decisive. The real status of the body with respect to the control of Government would have to be looked into. The various te....
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....members. Under the bye-laws, the State Government can neither issue any direction to the Mill nor determine its policy as it is an autonomous body. The State has no control at all in the functioning of the Mill much less a deep and pervasive one. The role of the Federation, which is the apex body and whose ex officio Chairman-cum-Managing Director is the Secretary, Department of Sugar Industry and Cane, Government of Uttar Pradesh, is only advisory and to guide its members. The letter sent by the Managing Director of the Federation on 22-11-1999 was merely by way of an advice and was in the nature of a suggestion to the Mill in view of its deteriorating financial condition. From the said letter, which is in the advisory capacity, it cannot be inferred that the State had any deep and pervasive control over the Mill. Thus, we find none of the indicia exists in the case of the Mill, as such the same being neither an instrumentality nor an agency of the Government cannot be said to be an authority and, therefore, it is not State within the meaning of Article 12 of the Constitution. 9. Learned counsel appearing on behalf of the contesting respondents submitted that even i....
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....er judgments of the Supreme Court on this aspect and examining elaborately the nature of functions of ICID as well as its constitution, bye-laws, etc., the Supreme Court observed as under:- "43. What follows from a minute and careful reading of the aforesaid judgments of this Court is that if a person or authority is "State" within the meaning of Article 12 of the Constitution, admittedly a writ petition under Article 226 would lie against such a person or body. However, we may add that even in such cases writ would not lie to enforce private law rights. There are a catena of judgments on this aspect and it is not necessary to refer to those judgments as that is the basic principle of judicial review of an action under the administrative law. The reason is obvious. A private law is that part of a legal system which is a part of common law that involves relationships between individuals, such as law of contract or torts. Therefore, even if writ petition would be maintainable against an authority, which is "State" under Article 12 of the Constitution, before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such an authority, whic....
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....not make it a public duty cast on ICID. We cannot lose sight of the fact that ICID is a private body which has no State funding. Further, no liability under any statute is cast upon ICID to discharge the aforesaid function. The High Court is right in its observation that even when object of ICID is to promote the development and application of certain aspects, the same are voluntarily undertaken and there is no obligation to discharge certain activities which are statutory or of public character. 49. There is yet another very significant aspect which needs to be highlighted at this juncture. Even if a body performing public duty is amenable to writ jurisdiction, all its decisions are not subject to judicial review, as already pointed out above. Only those decisions which have public element therein can be judicially reviewed under writ jurisdiction. In Praga Tools Corpn. v. C.A. Imanual [(1969) 1 SCC 585], as already discussed above, this Court held that the action challenged did not have public element and writ of mandamus could not be issued as the action was essentially of a private character. That was a case where the employee concerned was seeking reinstatement ....
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....d non-member countries on certain conditions. 35. As has been held in Federal Bank Ltd. [Federal Bank Ltd. v. Sagar Thomas, (2003) 10 SCC 733] solely because a private company carries on banking business, it cannot be said that it would be amenable to the writ jurisdiction. The Apex Court has opined that the provisions of the Banking Regulation Act and other statutes have the regulatory measure to play. The activities undertaken by the respondent Society, a non-governmental organisation, do not actually partake the nature of public duty or State actions. There is absence of public element as has been stated in V.R. Rudani [Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691] and Sri Venkateswara Hindu College of Engg. [K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engg., (1997) 3 SCC 571: 1997 SCC (L&S) 841] It also does not discharge duties having a positive application of public nature. It carries on voluntary activities which many a non-governmental organisations perform. The said activities cannot be stated to be remotely connected with the activities of the State. On a scrutiny of the ....
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.... amenable to it. 3. Certain functions of these bodies are regarded under that law as prescribing as opposed to merely permitting certain conduct. 4. These prescriptions are public duties." 57. Keeping in view the principles enunciated by the Supreme Court in the above mentioned judgments, in order to decide whether DGC is amenable to a writ jurisdiction under Article 226 of the Constitution, it would be necessary to cull out the facts that emerge in the present case:- i. DGC is a company under Section 8 of the Companies Act, 2013. ii. DGC is not a creature of a Statute. iii. Government does not exercise financial or administrative control over DGC, save and except, that three of its nominee Directors in the General Committee are appointed by the Government of India, but they have no extra or special powers compared to the other Directors on the Board. iv. It is a private club constituted by its members, with restricted membership, and governed by its own Memorandum and Articles of Association. v. Funds are provided by membership subscriptions, membership fee and revenue earne....
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....ed liquor, etc. for providing recreation facilities to the Defence personnel, both serving and retired, but that is only as a kind of benefit or facility. xxx xxx xxx 19. Learned counsel for the appellant relies on the decision of the Supreme Court in Zee Telefilms Ltd. & Anr. v. Union of India & Ors. reported in (2005) 4 SCC 649. In our opinion that decision is clearly distinguishable. In paragraph 31 of the said decision, the Supreme Court observed that the Board (BCCI) does discharge some duties like the selection of the Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State function, and hence a writ petition under Article 226 of the Constitution may lie against the BCCI. 20. In the present case, the petitioner/appellant does not discharge any such duty of selecting a national team for any game. Hence, in our opinion, the decision in Zee Telefilms Ltd. & Anr. v. Union of India & Ors. (supra) has no application to the facts of the present case. xxx xxx xxx 53. Applying the above principles....
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....rt to conclude that Air Force Sports Complex is not amenable to writ jurisdiction can be culled out as under:- (a) It runs in accordance with its own Rules and byelaws laid down by its Governing Council; (b) Funds are generated through monthly subscription and grants from various welfare funds; (c) No funds sanctioned from the Ministry of Defence; (d) The Institute is not performing any public function or discharging any public duty; (e) Only providing recreation to Air Force personnel; (f) Mere grant of some facilities by the Government, such as land, subsidized liquor etc. towards recreation is only a benefit and no more; and (g) No deep and pervasive control of the Government and it is only a private body. 60. When these reasons are placed on the canvas in the background and facts of the present case, as carved out above, are compared, the inescapable and inexorable conclusion is that DGC cannot be brought under the purview of Article 12, as it is neither a State nor its instrumentality nor 'other authority'. As stated categorically in the counter-affidavit by DGC,....
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....the Petitioners. 62. No doubt Courts have held that writs may lie against a private body but a caveat has been astutely lodged that only if it performs public functions, it would be amenable to writ jurisdiction. This was the dicta and ethos of the judgment of the Constitution Bench in Unni Krishnan J.P. & Ors. vs. State of A.P. & Ors., (1993) 4 SCC 111. Taking the benchmarks and yardsticks laid down by the Supreme Court, the next question whether DGC is performing 'public function' or 'public duty', in my opinion, can only be answered against the Petitioners. It is uncontrovertibly obvious that DGC is providing recreational facility of golf to its members or permitted members and this cannot be termed as a function akin to sovereign functions of the State. Division Bench in Air Vice Marshall J.S. Kumar (supra), relying on various judgments of the Supreme Court including Praga Tools Corporation (supra), addressing a similar issue held that the Air Force Sports Complex is a private body which provides recreation to Air Force Officers, serving or retired and it cannot be said that it is carrying out sovereign functions of the State. 63. In General Manager, Kisan....
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.... it is not performing any public function and analogy was drawn from the judgment in VST Industries Ltd. (supra), where the Court had held that manufacture and sale of cigarettes by private persons will not involve any public function. On this analogy, I may safely hold that DGC only provides recreational facility in the nature of a sport activity restricted to its members and permissive users and it would be too far-fetched to term it as a public function akin to a sovereign function of State, which is the touchstone from which the expression has to take its colour. Thus, without any hesitation and equivocation, this Court holds that DGC is neither 'other authority' under Article 12 of the Constitution of India nor it performs public function or discharges public duty, to be amenable to the writ jurisdiction of this Court under Article 226 of the Constitution of India. 64. Since this Court is not entertaining the writ petitions on ground of maintainability, challenge to the alleged illegal termination of the services of the Petitioners is not being adjudicated. Thus, at this stage no directions can be issued to the official Respondents for taking action against DGC for ....
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....ul." 66. The judgment in Satwati Deswal (supra), relied upon by the Petitioners, is also of no avail as this was a service matter pertaining to termination of the Petitioner by the Manager of the School and dealt with an employment with the State of Haryana, which was amenable to writ jurisdiction as a State under Article 12. In Roychan Abraham (supra), the issue was with regard to a private educational Institution and the Allahabad High Court held that private Institutions imparting education to students perform a 'public duty', which at the cost of repetition is quite apart from the activities undertaken by DGC. 67. Much emphasis was placed by learned counsel for the Petitioners on the judgment in Board of Control for Cricket in India (supra), wherein the Supreme Court has held that functions of the Board were public functions, no matter discharged by a Society registered under the Societies Registration Act, 1860 and is amenable to the writ jurisdiction. In order to analyze this argument, I may only refer to the judgment in the said case and the circumstances in which the Supreme Court came to the above conclusion. The Supreme Court first considered the judgment in....
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....idelines framed by it, but the Board has denied the same. In this regard we must hold that the Union of India has failed to prove that there is any recognition by the Union of India under the guidelines framed by it, and that the Board is discharging these functions on its own as an autonomous body. 68. Having so observed, the Supreme Court found that as a matter of fact the Board was discharging some duties like selection of the Indian cricket team, controlling the activities of the players, which activities were akin to public duties and in case of any breach of statutory obligations or rights of citizens, the aggrieved party could seek redress by a writ petition under Article 226 of the Constitution and in that context held as under:- "31. Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a ....
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.... Government of India who are not only fully aware but supportive of the activities of the Board. The State has not chosen to bring any law or taken any other step that would either deprive or dilute the Board's monopoly in the field of cricket. On the contrary, the Government of India has allowed the Board to select the national team which is then recognised by all concerned and applauded by the entire nation including at times by the highest of the dignitaries when they win tournaments and bring laurels home. Those distinguishing themselves in the international arena are conferred highest civilian awards like the Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri apart from sporting awards instituted by the Government. Such is the passion for this game in this country that cricketers are seen as icons by youngsters, middle aged and the old alike. Any organisation or entity that has such pervasive control over the game and its affairs and such powers as can make dreams end up in smoke or come true cannot be said to be undertaking any private activity." 70. In stark contrast to the functions carried out by the BCCI, in my view, the functions carried out by DGC cannot....
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.... the respondent No. 7 & 8 to take immediate action/launch prosecution against the Respondent no. 1 to 4 for their collusion & connivance with the Respondent No. 11 & 12 and to submit report before the concerned Metropolitan Magistrate for taking cognizance of the offences committed by the Respondent No. 1 to 4 in open contravention of Section 25Q; Section 25R; Section 25T; Section 25U; Section 25N; Section 25FFA; Section 25H; Section 30A, Section 31 A; Section 32 & Section 33 of the Industrial Disputes Act, 1947. 3. Writ, order or direction in the nature of MANDAMUS or any other appropriate writ, order or direction thereby directing the respondent No. 10 to immediately initiate & sent prosecution to the concerned Ld. Metropolitan Magistrate against the Respondent No. 11, 12, 13 & 14 for contravention of Section 2(m) of the Factories Act, 1948 for not obtaining license for food processing in the Kitchen of the Food Beverages Department of the Delhi Golf Club. 4. Writ, order or direction in the nature of MANDAMUS or any other appropriate writ, order or direction thereby directing the respondent No. 6 to immediately initiate & sent prosecution to the conc....