Full Text
HIGH COURT OF DELHI
Date of order: 4th September, 2023
51219/2022 GANGA SHARAN GAUR & ORS. ..... Petitioners
Through: Ms. Rashmit Chopra and Mr. Puneet Rathi, Advocates
Mr. Paripoorn Singh and Mr. Rachit Khandelwal, Advocates for P-2 and
P-3
PRESIDENT CUM DIRECTOR GENERAL, CRPF & ORS. ..... Respondents
Through: Ms. Sarika Singh, SPC with Mr. Kartar Singh, DC Legal and Mr. Sourabh Bhushan, Legal Officer RAF for UOI
CHANDRA DHARI SINGH, J (Oral)
ORDER
1. The instant petition under Article 226 of the Constitution of India has been filed on behalf of the petitioner seeking the following reliefs: “i. To issue appropriate Writ/order in the nature of Writ of Certiorari, quashing the Order contained in letters bearing reference no. E.I.12/2022-23-WEL-EDN-DA[2] dated 03.08.2022 issued by the Respondents, whereby the Respondents, in unjust and arbitrary manner, terminates the services of the petitioners; ii. To issue appropriate Writ order in the nature of the Writ of mandamus directing the Respondents to rescind the said letter and to reinstate the services of the Petitioner(s). iii. Pass order (s) as this Hon‟ble Court may deem fit and proper in the present case.”
2. The relevant facts have been briefly recapitulated below for the disposal of the present petition: a) The respondent no. 4 (hereinafter „respondent institute‟) was established in the year 1999, under the umbrella of respondent no.1 (hereinafter „respondent society‟). b) The petitioner no.1 was appointed as a Support Faculty (Lab Assistant) vide the appointment order dated 17th August 1999,. Thereafter, the petitioner no.1 got promoted to the post of Teaching Faculty after 18 months of joining the respondent institute. c) The respondent society published an advertisement dated 31st May 2000, thereby, inviting applications for the permanent post of Teaching Faculty. In pursuance to the said advertisement, the petitioner no.2 applied for the above mentioned post and the same was confirmed vide office order dated 1st August 2000. d) Subsequently, the respondent society published another advertisement dated 4th December 2000, for inviting applications for the permanent post of LDC-cum-Typist. The petitioner no.3 applied for the said post and his appointment was confirmed vide offer letter of appointment dated 24th January 2001. e) The respondent society confirmed the employment of the petitioners upon completion of their probation period of one year. f) Meanwhile, the petitioners got the benefit from the recommendation of 6th and 7th Central Pay Commission vide the notification dated 21st September 2016. g) Afterwards, during the then prevailing COVID – 19 pandemic, the respondents held meetings and the same were concluded with the motive inter alia to extract the rehabilitation/reinduction plan for the regular employees of the respondent(s). In consequent to the above, the petitioners made representations seeking clarification with regards to the conclusion of the above-mentioned meetings. In response to the same, the respondents issued termination notice to the petitioners. h) The petitioners made several more representations to quash the said termination notice, however there was no response on behalf of the respondents. i) Aggrieved by the inaction on behalf of the respondents, the petitioners have preferred the present petition.
3. During the course of the arguments, learned counsel appearing on behalf of the respondent society argued that the present petition is not maintainable on the ground that respondent society is a private body, the employees are purely private/unaided and non-pensionable, therefore, not falling within the ambit of Article 12 of the Constitution of India by placing reliance on case titled Ravi Khokhar v. Union of India and Ors.,2023 SCC OnLine Del 540.
4. It is submitted that the respondent institute receives no aid from the Centre/State Governments for the operation and functioning of the respondent institute and hence, the petitioners cannot be treated as Government Servants.
5. It is submitted that since the respondent institute was running into losses and that there was no improvement in the financial condition of the respondent institute even after a long time therefore the respondent society took the decision to close down the respondent institution, however, keeping in view of the length of the services discharged by the petitioners, the competent authority has decided to give the petitioners opportunity to draw lump sum gratuity amount taking into account their service period upto 58 years i.e. till their superannuation age
6. It is therefore submitted that the present petition is not maintainable as the duties discharged by the respondents are not public duties and therefore the respondents do not fall under the ambit of Article 12 of the Constitution of India.
7. Per Contra, learned counsel appearing on behalf of the petitioner appearing addressed the issue of maintainability by placing reliance on judgments such as Marwari Balika Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449, Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani,, (1989) 2 SCC 691 and Binny Ltd. and Anr. v. V. Sadasivan, Civil Appeal 1976 of 1998 dated 8th August 2005 to examine the power of the Court while entertaining a writ petition under Article 226 of the Constitution of India.
8. It is submitted that the respondent society is financed by the Central Reserve Police Force (hereinafter “CRPF”) which falls within the definition of "State", and any job opportunity provided by the respondent society should be considered to be a government job.
9. It is therefore submitted that the instant petition is maintainable as the respondent institute falls within the ambit of Article 12 of the Constitution of India.
10. Heard the learned counsel appearing on behalf of the parties and perused the record.
11. Before delving into the case on merits, this Court is of the opinion that the issue surrounding the maintainability of the petition needs to be addressed at the outset.
12. As per the material on record, it is evident that the petitioners had made several representations to the respondents however, due to the inaction on the part of the respondents in regard to their grievances and the termination of the services of the petitioners, they were constrained to approach this Court. The respondent society has submitted that the instant petition is not maintainable as the respondent institute is a private body, not possessing any public character, and therefore, not falling under the ambit of Article 12 of the Constitution of India.
13. At this juncture it becomes imperative to analyse the settled legal principles governing the scope of Article 12 of the Constitution of India with regards to the nature of bodies that may fall under it.
14. The Hon‟ble Supreme Court, in the judgment of Chander Mohan Khanna v. National Council of Educational Research and Training, (1991) 4 SCC 578, has determined the nature of the parties that may fall within the purview of Article 12 of the Constitution of India. The Hon‟ble Court held as follows:
15. Further, the Hon‟ble Supreme Court in the judgment of Chander Mohan Khanna v. National Council of Educational Research and Training (Supra), has held that the scope of Article 12 shouldn‟t be expanded to such an extent that every autonomous body falls under its ambit. A mere connection to the government would not make the body in question to be comprised as a „State‟ under Article 12.. Financial contribution as well as the State control is not determinative of whether the said body would fall under Article 12 of the Constitution of India.
16. Similarly, the Hon‟ble Supreme Court while bearing in mind the above stated principle, extensively discussed if an authority or society would fall under the purview Article 12 in the matter of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111. It held that in order to determine if an authority or society would fall under the purview of Article 12, it would be pertinent to examine the power of the government over the body and even then, analyse if the said power is inescapable.
17. On perusal of the aforementioned judgments and submissions, it now becomes pertinent to examine whether the present petition is maintainable in view of the claim that the duty discharged by the respondent institute is private in its nature.
18. During the course of the arguments, the learned counsel appearing on behalf of the respondent had relied on a judgment passed by the Hon‟ble Supreme Court in the case titled as Ravi Khokhar v. Union of India and Ors (Supra), in order to establish that the respondents do not discharge any public function, hence, making it a private body. Relevant paragraphs of the said judgment are reproduced as under:
19. It now becomes pertinent to examine whether the duties discharged by the respondents are public or private in nature. As mentioned in the aforesaid paragraphs, it becomes evident that the respondent institute was established in the year of 1999 under the umbrella of the respondent society as a welfare measure with the motive to inculcate digital literacy to the CRPF wards for their betterment. The project was a part of welfare measure taken by the CRPF for their employees.
20. Bearing in mind the aforesaid, it becomes crystal clear that the respondent society is discharging a private duty, as the benefits of the same are being availed by the families and members of the CRPF and not the community at large. A useful guide to determine whether an organisation/institution/body is discharging a private or public function can be the overall benefit of the community. In the event that the benefits of an organisation are being availed by the public at large the organisation/institution/body will fall under the ambit of Article 12 of the Constitution of India.
21. Consequently, involvement of the „State‟ in any organization/ institution / body is also an important determinant of the public or private functions discharged by them. In the event that the body is under state regulations, it goes beyond the narrow barriers of the private duty which is being discharged by the concerned body.
22. The maintainability of a writ petition against a body discharging private functions has been analysed at length by different Courts. It is a settled legal principle that a writ petition against a body constituting private character would not be maintainable however, a writ can lie against a “person”, provided, it discharges a public function or performs a “public statutory duty”. Even though defining the term public function can be rather intricate, it would be equitable to equate the functions with that of the State in a sovereign capacity.
23. A petition under Article 226 of the Constitution of India is maintainable against a body discharging duties or functions which are public in nature. The public duty may be statutory or otherwise, and if it is otherwise, it must be demonstrated that the entity or person is obligated to the public in accordance with public law. Similar to this, it must be proven that the organisation or individual sought to accomplish the same goal for the benefit of the whole public or a specific segment of it, and the public must recognise their right to do so in order to determine the discharge of a public role.
24. In view of the aforesaid discussions, this Court is of the view that the functions discharged by the respondents, do not constitute public functions and hence, do not fall under the ambit of Article 12 of the Constitution of India. The contention that the society has been constituted in lieu of the CRPF is not sufficient to establish a direct nexus with the government or the fact that the duties discharged by it are similar to that of the State in a sovereign capacity.
25. The Division Bench of this Court in case titled Ravi Khokhar v. Union of India and Ors (Supra), observed that the respondent institute has been established by the respondent society for the welfare of the past/present members of the CRPF and their families. The respondent institute is not funded or controlled by the Central Government in any manner. Since the respondents stand to be a funded independently, they do not fall within the ambit of Article 12 of the Constitution of India.
26. In the view of the above discussions of facts and law, the instant petition is not maintainable as the respondents do not fall under the category of „State” and within the ambit of Article 12 of the Constitution of India, since the functions performed by it do not constitute public functions and no interference could be established from the government in terms of financial control and public benefit.
27. Based on the aforementioned discussions, this writ petition is accordingly dismissed.
28. Pending applications, if any, also stand dismissed.
29. The order be uploaded on the website forthwith.