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TMI Blog2021 (4) TMI 1278X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court has not expressed any opinion on the merits of the issues raised. Petitioners seek prosecution of the office bearers of DGC, alleging violation of the various provisions of the Industrial Disputes Act, 1947, Factories Act, 1948, Disaster Management Act, 2005 and Contract Labour (Regulation Abolition) Act, 1970. The reliefs sought cannot be granted by this Court as it is the prerogative of the State Government to initiate prosecution, depending on the facts and circumstances of each case before it. A writ of mandamus cannot be issued for directing prosecution or institution of legal proceedings to any party and there is a complete mechanism available to the Petitioners under the relevant statutes for the said purpose. Petition dismissed. - W.P. (C) 3403/2020, C.M. 16264/2020, W.P. (C) 3941/2020, C.M. 16266/2020, W.P. (C) 5440/2020, C.M. 19612/2020, W.P. (Crl.) 1222/2020 and Crl. M.A. 10818/2020 - - - Dated:- 19-4-2021 - HON'BLE MS. JUSTICE JYOTI SINGH For the Appellant : Ms. Sunita Bhardwaj, Mr. Bhaskar Vali, Mr. Manu Abhishek Bhardwaj and Mr. Pranav Singal, Advocates For the Respondent : Mr. Vikrant N. Goyal, Advocate for R-1, 2, 3 5 Mr. Jawahar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r direction thereby directing the respondent No. 6 to quash and set aside the decision of removing the 59 employees/members of the Petitioner from permanent employment and issue a writ of MANDAMUS to protect the permanent employment of the members of the petitioner amid the Pandemic COVID-19 and to ensure that the members of the Petitioners are allowed to join their permanent employment amid COVID-19 in the Food Beverages Department of the Delhi Gold Club as per ANNEXURE P-15 of the present Writ Petition giving name and designation(s) of 59 permanent employees/members of the Petitioner Union. 3. 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 Food Beverages Department of the Delhi Golf Club is not outsourced to any contractor/third party by the respondent No. 6 amid Pandemic COVID-19. 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 Members of the Petitioner as detailed in ANNEXURE P-15 are not stopped from performing their duties during Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking away the right of livelihood of the Petitioners as well as for quashing the decision dated 29.05.2020, whereby the Petitioners were terminated from permanent employment, amongst other reliefs, which are as under:- 1. 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 take stern action against the Board of Management of 'The Delhi Golf Club' for taking away illegally the right of livelihood of the Petitioners ensured/enshrined under Article 21 of the Constitution of India of the members of the petitioner by illegally removing them from their permanent employment during the ongoing Pandemic COVID-19. 2. Writ, order or direction in the nature of CERTIORARI or any other co-ordinate appropriate writ, order or direction thereby directing the respondent No. 6 to quash and set aside the decision dated 29.05.2020 ANNEXURE P-28 ANNEXURE P-29 of removing the Petitioners from permanent employment and issue a writ of MANDAMUS to protect the permanent employment of the petitioners amid the Pandemic COVID-19 and to ensure that the members of the Petitioners are allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate writ, order or direction thereby directing the Respondent No. 6 not to act upon the advertisement i.e. ANNEXURE P-63 given in News Papers for privatization/outsourcing the Food Beverages Department of the Delhi Golf Club. 10. Writ, order or direction in the nature of MANDAMUS or any other appropriate writ, order or direction thereby directing the Respondent No. 6 not to create any third party interest by privatization/outsourcing the Food Beverages Department of the Delhi Golf Club at the cost of livelihood of the Petitioners. 11. Any other Writ, Order or direction in the nature of MANDAMUS or any other appropriate writ, order or direction the Hon'ble Court may deem fit and proper may also be granted in the facts and circumstances of the present case and in the interest of Justice. W.P.(C) 5440/2020 5. Multiple directions are sought in the petition against Union of India, Special/Additional/Joint Labour Commissioners, Delhi Advisory Contract Labour Board and other concerned Departments including DGC to prohibit deployment of contract labour by DGC and to forward the application of the Petitioners under Section 10 of the Contract Labour (Regulation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion certificate to the Respondent Management of the Delhi Golf Club i.e. Respondent No. 11, 12, 13 herein with regard to the Food Beverages Department of the Delhi Golf Club. 5. Writ, order or direction in the nature of MANDAMUS or any other appropriate writ, order or direction thereby directing the Respondent No. 4 to revoke/cancel the registration of principle employer if already granted to the Respondent No. 11, 12 13 i.e. the Management of the Delhi Golf Club with regard to the Food Beverages Department of the Delhi Golf Club under Section 7 or any other section of the Contract Labour (Regulation Abolition) Act, 1970. 6. 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 revoke/cancel the Principle Employer Registration Certificate for House Keeping Security Services having permanent perennial nature of services obtained through misrepresentation in the year 2006 in view of the admitted fact that the management of the Delhi Golf Club has already surrendered the said Registration Certificate online on 3/7/2020 30/7/2020 itself. 7. Writ, order or direction i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imited by Guarantee; (f) it is an autonomous and private body run by its own Governing Board, namely, the General Committee comprising of a President, Captain, three nominees of the Government of India, immediate past Captain and twelve members elected as per Article 43 of the Articles of Association of DGC; (g) presence of 3 nominees in the Board, appointed by the Government, does not alter the status of DGC as a private body and Government has no financial or even administrative control over its functioning; (h) it is run solely for the use of its members or permitted persons, membership being restricted and facilities are not open to public at large and (j) funds are generated purely through membership fee, membership subscriptions and revenues earned from Golf. 7. Succinctly put the argument was that DGC is a private body, not performing public functions and is not financially or functionally or administratively controlled by the Government of India and merely having senior officials of the Government, as nominee Directors, appointed by Ministry of Urban Development, as part of the General Committee (Board), does not make DGC a State or its instrumentality or 'other auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .D. Act') and filed complaints alleging illegal removal of the Petitioners and raising other grievances and proceedings are pending. DGC had received notice and reply has been filed. Though, it was disputed that the employees are 'workman' under Section 2(s) of the ID. Act, however, without prejudice to the said position, the argument was that once Petitioners have resorted to the dispute resolution mechanism, they are estopped from approaching this Court invoking its extraordinary jurisdiction and seeking prerogative writs under Article 226 of the Constitution. For the proposition that once an alternate remedy is available under the ID. Act and other labour legislations, writ petition will not lie, reliance is placed by Mr. Sethi on the judgments in Chairman, Coal Authority of India Anr. vs. Madan Prasad Sinha and Ors., (2000) 10 SCC 597; Transport and Dock Workers Union Ors. vs. Mumbai Port Trust and Anr., (2011) 2 SCC 575 and a recent judgment of the Coordinate Bench of this Court in PTI Employees Union vs. PTI, W.P.(C) No. 1596/2018 and W.P.(C) No. 10605/2018. 11. Without prejudice to the objection to the maintainability of the petitions, Mr. Sethi contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court to issue writ begins with a non-obstante clause. The power and jurisdiction of the High Court is much wider. The jurisdiction extends to enforcement against infringement of Part III rights, against 'State' and also against 'any person or authority' and for any other purpose'. The limitation of action against the 'State' alone is not there under Article 226 of the Constitution. Thus, there is distinction between the powers to issue writs as between the Supreme Court and the High Court. The power to issue writ conferred upon the Supreme Court by Article 32 is for enforcement of Part III rights, but the power to issue writs as conferred under Article 226 upon the High Court is for enforcement of fundamental rights as against 'State' and non fundamental rights as against any 'other person or authority' or for any other purpose'. Thus, is the distinction between writ jurisdiction of the Supreme Court and the High Court, that even where the Supreme Court declines a Article 32 writ petition on the ground that the offending party/authority is not 'State' yet the High Court can interfere and issue writ under Article 226 in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue writ more extensive than that of Supreme Court. Any other purpose' means a purpose for which any of the writs could, according to well established principles issue and not otherwise. In short the words means 'enforcement of legal right' and the performance of any legal duty. (Refer: State of Orissa v. Madangopal ungta, Fertilizer Corporation Kamgar Union v. Union of India; Calcutta Gas Corporation v. State of West Bengal) xxx xxx xxx 34. The issue as to whether a private body, though not 'State' within the meaning of Article 12 of the Constitution, would be amenable to the writ jurisdiction of the High Court under Article 226 was examined by the Constitution Bench in Zee Telefilm Ltd. The question that fell for consideration was whether Board of Control for Cricket in India (in short BCCI ) falls within the definition of 'State'. The ratio laid down in Andi Mukta was approved, but on the facts of the case, Supreme Court, by majority held that BCCI does not fall within the purview of the term 'State' but clarified that when a private body exercises public function even if it is not a State, the aggrieved person has a remedy not only un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubserve the public purpose. 15. To fortify the submission that DGC, even if it is not a State, is 'other authority' under Article 12 and any argument to the contrary by DGC is untenable in the eyes of law, reliance was placed on the judgment of the Supreme Court in Board of Control for Cricket in India vs. Cricket Association of Bihar, (2015) 3 SCC 251 and support was also drawn from ratio decidendi of the judgment in Indian Olympic Association vs. Veeresh Malik, W.P.(C) 876/2007, wherein this Court held that the Indian Olympic Association is a Public Authority under Section 2(h) of the Right to Information Act, 2005, as follows:- Having regard to the pre-eminent position enjoyed by the IOA, as the sole representative of the IOC, as the regulator for affiliating national bodes in respect of all Olympic sports, armed with the power to impose sanctions against institutions-even individuals, the circumstance that it is funded for the limited purpose of air fare, and other such activities of sports persons, who travel for events, is not a material factor. The IOA is the national representative of the country in the IOC; it has the right to give its nod for inclusion o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not a body made under any law, but a body made by the aforesaid law. The learned Single Judge as rightly pointed out that there is a distinction between the use of the words by any law made by Parliament and by or under the Constitution . The Parliament has consciously not used the words by or under in sub clause (b) of Section 2(h). In other words, once the body is established or constituted by the law made by Parliament, it would be public authority under Section 2(h)(b) of the RTI Act. 10. We are in agreement of the aforesaid view. We, thus hold that once it is found that an authority or body or institution of self Government is established or constituted in any manner prescribed in clause (a) to (d) of Section 2(h) of the RTI Act, then there is no further requirement of such a body to be either owned or controlled or substantially financed by an appropriate Government. 18. Order passed by Central Information Commission in Pradeep Bhanot vs. Chandigarh Club, Chandigarh (File No. CIC/LS/A/2010/001184) is cited, wherein it is held that Chandigarh Club is a Public Authority, based on somewhat similar facts, where the plot of land is leased to the Club, by the Chandi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by the Central Government under Section 10(L) of the Disaster Management Act, 2005 and the letter and spirit behind it, which is to protect employees against wage reduction and termination etc. in the wake of Pandemic COVID-19. 22. It was argued that it is a settled law that termination of service without following due process of law is liable to be quashed, more particularly, when it is in violation of the principles of natural justice. It is submitted that in Satwati Deswal vs. State of Haryana and Ors., 2010 (1) SCC 126, the Supreme Court held that if an employee is terminated and there are violations of principles of natural justice in the procedure followed to terminate, then, despite the existence of an alternate remedy, Court can interfere under Article 226 of the Constitution. 23. In support of the argument that existence of an alternative efficacious remedy does not as matter of rule, bar a writ remedy, support is drawn from the judgment of the Supreme Court in Harbanslal Sahnia vs. Indian Oil Corpn. Ltd., (2003) 2 SCC 107, para nos. 7 and 8 of which are as follows:- 7. So far as the view taken by the High Court that the remedy by way of recourse to arbi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and obligations by not taking action against DGC, despite violation of several statutory provisions of the Act. Respondent Nos. 1 to 5 are under statutory obligations to take action for violation of provisions of Section 25(N) of the I.D. Act, terminating services of 66 Petitioners, without prior approval of the appropriate Government; violation of Section 25(O) of the I.D. Act, taking a false plea of closure of the F B Department, without prior approval and operating the same through a contractor; violation of Section 25(O)(6) of the I.D. Act by not allowing those employees who are deemed to be in employment in the absence of permission of closure, to work; violation of Section 25(U) and unfair labour practice by taking away the livelihood of the Petitioners at a time when there was a Pandemic and in the natural course, wage revision was due. 26. Responding to the submissions of Ms. Bhardwaj, learned Senior Counsel Mr. Sethi, eloquently articulated that there is no violation of the Notification dated 29.03.2020, issued under the Disaster Management Act, 2005, as the same stands withdrawn by the Government with effect from 18.05.2020, which fact has been concealed by the Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both industry and labourers need each other. No industry or establishment can survive without employees/labourers and vice versa. We are thus of the opinion that efforts should be made to sort out the differences and disputes between the workers and the employers regarding payment of wages of above 50 days and if any settlement or negotiation can be entered into between them without regard to the Order dated 29-3-2020, the said steps may restore congenial work atmosphere. 41. We thus direct the following interim measures which can be availed by all the private establishments, industries, factories and workers trade unions/employees associations, etc. which may be facilitated by the State authorities: 41.1. The private establishments, industries, employers who are willing to enter into negotiation and settlement with the workers/employees regarding payment of wages for 50 days or for any other period as applicable in any particular State during which their industrial establishment was closed down due to lockdown, may initiate a process of negotiation with their employees' organisation and enter into a settlement with them and if they are unable to settle by themselves s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i pointed out that the provisions relied upon by the Petitioners being Sections 25(N), 25(O) and 25(U), fall under Chapter V-B of the I.D. Act and a bare reading of the said Chapter shows that the provisions are to apply to 'Industrial Establishment' which is defined under Section 25(L) as under:- 25-L. Definitions.-For the purposes of this Chapter,- a) 'industrial establishment' means- i) a factory as defined in clause (m) of Section 2 of the Factories Act, 1948 (63 of 1948); (ii) a mine as defined in clause (j) of sub-section (1) of Section 2 of the Mines Act, 1952 (35 of 1952); or (iii) a plantation as defined in clause (f) of Section 2 of the Plantations Labour Act, 1951 (69 of 1951); (b) notwithstanding anything contained in sub-clause (ii) of Clause (a) of Section 2,- i) in relation to any company in which not less than fifty-one per cent of the paid-up share capital is held by the Central Government, or (ii) in relation to any corporation [not being a corporation referred to in sub-clause (i) of clause (a) of Section 2] established by or under any law made by Parliament, the Central Government shall be the appropriate Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer who prepared a detailed report and forwarded the same to the Joint Labour Commissioner. However, subsequently, matter was again placed before the Labour Officer and he attempted some settlement but no further proceedings could take place as it was informed that the matter is sub-judice before this Court. 32. Insofar as the issue of prohibition of deployment of contract labour is concerned, the stand in the affidavit is that the application has been considered by the Joint Labour Commissioner and recommended for forwarding to the State Advisory Board for consideration as the Chairman of the Board is the final Authority. As and when the meeting of the Board is convened, the agenda item shall be placed before it for consideration. With respect to the application for grant of registration of establishment employing contract labour under Section 7 of the CLRA, filed by DGC, before the Registering Office, it is stated in the affidavit that previously a certificate was granted to DGC on 08.08.2006 and until the same is surrendered, no new certificate can be issued. Therefore, the application will be considered only once the said certificate is surrendered. 33. I have heard l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... literally it will mean that a writ can be issued for any purpose whatsoever, e. g, for deciding private property disputes, for grant of divorce, succession certificate etc. Similarly, if we interpret the words to any person literally it will mean that a writ can even be issued to private persons. However, this would not be the correct meaning in view of various decisions of the Supreme Court in which it was held that a writ will ordinarily lie only against the State or instrumentality of the State vide Chander Mohan Khanna v. National Counsel of Educational Research and Training (1991) 4 SCC 578, Tekraj Vasandhi v. Union of India, AIR 1988 SC 496, Federal Bank Ltd. v. Sagar Thomas Co. (2003) 10 SCC 733, General Manager, Kisan Sahkari Chini Mills Ltd. v. Satrughan Nishad (2003) 8 SCC 639, Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors. (2002) 5 SCC 111). In Binny Ltd. v. Sadasivan, AIR 2005 SC 3202, the Supreme Court observed that a writ will lie against a private body only when it performed a public function 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope of 'other authorities' is narrow under Article 12. However, the term has been given a broader interpretation and its scope has been expanded over a period of time through judicial interpretations. Article 12 in the Constitution was introduced in the Draft Constitution as Article 7. The reason why the Article was placed in a Chapter concerning Fundamental Rights is discernible from the Constituent Assembly Debate by Dr. Ambedkar and I may allude to the same as follows:- The object of the fundamental rights is twofold. First, that every citizen must be in a position to claim those rights. Secondly, they must be binding upon every authority I shall presently explain what the word 'authority' means upon every authority which has got either the power to make laws or the power to have discretion vested in it. Therefore, it is quite clear that if the fundamental rights are to be clear, then they must be binding not only upon the Central Government, they must not only 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rations such as Life Insurance Corporation, Industrial Finance Corporation were brought within the purview of Article 12 and the reasoning to so hold is evident from the following observations in the judgment:- The concept of State has undergone drastic changes in recent years. Today State cannot be conceived of simply as a coercive machinery wielding the thunderbolt of authority. It has to be viewed mainly as a service corporation. A State is an abstract entity. It can only act through the instrumentality or agency of natural or juridical persons. There is nothing strange in the notion of the State acting through a corporation and making it an agency or instrumentality of the State. With the advent of a welfare State the framework of civil service administration became increasingly insufficient for handling the new tasks which were often of a specialised and highly technical character. The distrust of Government by civil service was a powerful factor 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernmental character. (3) It may also be a relevant factor... whether the corporation enjoys monopoly status which is State conferred or State protected. (4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. (5) If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. (6) Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government. 43. In Ajay Hasia and Ors. vs. Khalid Mujib Sehravardi and Ors., (1981) 1 SCC 722, the above tests were accepted by the Constitution Bench of the Supreme Court for determining 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 Intern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng words:- (1) Principles laid down in Ajay Hasia [(1981) 1 SCC 722: 1981 SCC (L S) 258] 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. (2) The question in each case will have to be considered on the basis of facts available as to whether in the light of the cumulative facts as established, the body is financially, functionally, administratively dominated, by or under the control of the Government. (3) Such control must be particular to the body in question and must be pervasive. (4) Mere regulatory control whether under statute or otherwise would not serve to make a body a State. 46. Having so recapitulated the broad parameters, the Supreme Court carved out certain facts with respect 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fundamental right under Article 19(1)(g) to pursue their professional career as cricketers. It was also submitted that the Board controls the said rights of a citizen by its Rules and Regulations and since such a regulation can be done only by the State, the Board of necessity must be regarded as an instrumentality of the State. It was also pointed out that under its Memorandum of Association and the rules and regulations and due to its monopolistic control over the game of cricket, the Board has all-pervasive powers to control a person's cricketing career as it has the sole authority to decide on his membership and affiliation to any particular cricket association, which in turn would affect his right to play cricket 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 foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution of India may be maintainable against (i) the State (Government); (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private 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. xxx xxx xxx 33. For the discussion held above, in our view, a private company carrying on banking business as a scheduled bank, cannot be termed as an institution 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 disci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. In a book on Judicial Review of Administrative Action (5th Edn.) by de Smith, Woolf Jowell in Chapter 3, para 0.24, it is stated thus: A body is performing a 'public function' when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose and nature of their detention is a matter of public concern and interest. After detailed discussion, the learned authors have summarised the position with the following propositions: (1) The test of whether a body is performing a public function, and is hence amenable to judicial review, may not depend upon the source of its power or whether the body is ostensibly a 'public' or a 'private' body. (2) The principles of judicial review prima facie govern the activities of bodies performing public functions. (3) However, not all decisions taken by bodies 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 approa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty 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. 29. Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel public/statutory authorities 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sy to define, but reasonably speaking these would closely relate to functions akin to sovereign functions of the State and in that context observed that the primary activity of the Institute was to conduct Research and Training Programmes on voluntary basis and a voluntary service cannot be a public duty. Supreme Court relied upon the judgment in Praga Tools Corporation (supra), where the Supreme Court had construed Article 226 to hold that High Court could issue a writ to secure performance 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 ICR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d proper utilization of the grants was monitored by the Government. It was set up as a Society with seven Government officers subscribing to the Memorandum of Association, with the object of assisting and advising Ministry of Education and Social Welfare, in field of education. The Supreme Court after examining all the salient features held that NCERT is not a State under Article 12. 52. In General Manager, Kisan Sahkari Chini Mills Limited, Sultanpur, 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 Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentatives of individual members, three out of the cooperative society and other institutions and two representatives of financial institutions besides five members who are required to be nominated by the State Government which shall be inclusive of the Chairman and Administrator. Thus, the ratio of the nominees of the State Government in the Committee is only 1/3rd and the management of the Committee is dominated by 2/3rd non-government 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 infer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eful to allude to the judgment of the Supreme Court in K.K. Saksena (supra). The issue before the Supreme Court was whether the High Court was right in holding that the writ petition filed against International Commission on Irrigation and Drainage (ICID) was not maintainable as it is not a State under Article 12 and nor were its actions amenable to judicial review under Article 226 of the Constitution. Relying on several earlier 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haracter of ICID. The focus has to be on the function discharged by ICID, namely, whether it is discharging any public duties. Though much mileage was sought to be drawn from the function incorporated in the MoA of ICID, namely, to encourage progress in design, construction, maintenance and operation of large and small irrigation works and canals, etc. that by itself would 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 jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ystematic management of sustained irrigation and drainage systems, publication of newsletter, pamphlets and bulletins and its role extends beyond the territorial boundaries of India. The memberships extend to participating countries and sometimes, as bye-law would reveal, ICID encourages the participation of interested national and 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., (199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s book 'Public Duties and Public Law' defined the terms as follows:- 1. There is, for certain purposes (particularly for the remedy of mandamus or its equivalent), a distinct body of public law. 2. Certain bodies are regarded under that law as being 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Article 12 of the Constitution. In the present case, the Government may have granted some facilities like land, subsidized 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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, it is governed by its own Memorandum and Articles of Association and its m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 Sahkari Chini Mills (supra), as noted above, the Supreme Court had an occa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment 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 discontinuing the services, as sought by the Petitioners. 65. Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Zee Telefilms Ltd. (supra), where, by a majority, the Supreme Court had held that BCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 relief by way of a petition under Article 32. But that does not mean that the violator of such right would g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 even remotely be termed as public functions. Providing recreation as a Club to its restricted members cannot be compar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 concerned Ld. Metropolitan Magistrate against the Respondent No. 11, 12, 13 14 under Section 58 for contravention of Section 10 of the Disaster Management Act, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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