Miscellaneous Part 5
Summary of Question- Maintainability of Writ petition against private body / person
Question – Whether a writ petition would generally be maintainable against a private body or person.
Answer- No. A writ petition is maintainable if the opposite party is “State” or “Authority” or an “Instrumentality” or “Agency” of the State within the meaning of Article 12 of the Constitution of India. A private body or a person is, ordinarily, NOT amenable to writ jurisdiction. There are certain exceptional circumstances in which such a writ petition may be maintainable e.g., where it may become necessary to compel such body or association to enforce any obligation of public nature casting positive obligation upon it.
1. The test propounded in Ramana Dayaram Setty vs. International Airport authority of India [1979 (3) SCC 489] for determining as to when the Corporation would be said to be an instrumentality or agency of the Government for maintainability of Writ Petition has been followed in Pradeep Kumar Biswas’s (2002) 5 SCC 111 Case at para 31. The test given in Ramana’s case at para 14 to 16 are summarized as under:
“One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government”(vide para14 of Ramana’s case)
“Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character” (vide para 15 of Ramana’s case).
“It may also be a relevant factor . whether the corporation enjoys monopoly status which is State-conferred or State-protected”( vide para 15 of Ramana’s case)
“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.”( vide para 16 of Ramana’s case)
2. The decision in General Manager, Kisan Sahkar Chini Mills Limited, Sultanpur, UP vs. Satrughan Nishad and Ors. (2003) 8 SCC 639 is also relevant. In this case the appellant was engaged in the manufacture of sugar. The respondents were the workers of the appellant and they filed writ petitions contending that they had to be treated as permanent workmen. Short fact of the case was that the appellant was Co-operative Society and Uttar Pradesh Co-operative Sugar Factories Federation Limited, which is the apex body of cooperative sugar mills in the State and whose function being advisory in order to safeguard operational and financial interest of the sugar mills, on 22nd November, 1999, Chairman-cum-Managing Director of the Federation, who was also Secretary to the Government of Uttar Pradesh in the Department of Sugar Industry and Cane Development, had sent a letter to General Manager of the Mill in which it was mentioned that during the course of discussion the Managing Director had with the General Manager and other officers of the Mill, it transpired that out of 708 workmen working in the Mill, 401 were surplus whose services were required to be dispensed with in view of the deteriorating financial condition of the Mill. By the said letter the Mill was advised to consider the desirability of dispensing with services of its surplus workmen. Thereupon, services of surplus workmen were dispensed with without giving any notice and paying retrenchment compensation as required under Section 6N of Uttar Pradesh Industrial Disputes Act, 1947. The Hon’ble Single Judge of the High Court held that the Mill was State within the meaning of Article 12 of the Constitution as it was instrumentality of the State. The Division Bench of the Hon’ble High Court affirmed by the decision. The Apex Court observed and held at para 8 as quoted below:
“ 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 co-operative 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 tests, as indicated above, would have to be applied and considered cumulatively. There can be no hard and fast formula and in different facts/situations, different factors may be found to be overwhelming and indicating that the body is an authority under Article 12 of the Constitution. In this context, Bye Laws of the Mill would have to be seen. In the instant case, in one of the writ applications filed before the High Court, it was asserted that the Government of Uttar Pradesh held 50% shares in the Mill which fact was denied in the counter affidavit filed on behalf of the State and it was averred that majority of the shares were held by cane growers. Of course, it was not said that the Government of Uttar Pradesh did not hold any share. Before this Court, it was stated on behalf of the contesting respondents in the counter affidavit that the Government of Uttar Pradesh held 50% shares in the Mill which was not denied on behalf of the Mill. Therefore, even if it is taken to be admitted due to non traverse, the share of the State Government would be only 50% and not entire. Thus, the first test laid down is not fulfilled by the Mill. It has been stated on behalf of the contesting respondents that the Mill used to receive some financial assistance from the Government. According to the Mill, the Government had advanced some loans to the Mill. It has no where been stated that the State used to meet any expenditure of the Mill much less almost the entire one, but, as a matter of fact, it operates on the basis of self generated finances. There is nothing to show that the Mill enjoys monopoly status in the matter of production of sugar. A perusal of Bye-Laws of the Mill would show that its membership is open to cane growers, other societies, Gram Sabha, State Government, etc. and under Bye-Law 52, a committee of management consisting of 15 members is constituted, out of whom, 5 members are required to be elected by the representatives of individual members, 3 out of co-operative society and other institutions and 2 representatives of financial institutions besides 5 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 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 deep and pervasive one. The role of the Federation, which is the apex body and whose ex-officio Chairman-cum-Managing Director is Secretary, Department of Sugar Industry and Cane, Government of Uttar Pradesh, is only advisory and to guide its members. The letter sent by Managing Director of the Federation on 22nd November, 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 Mill, as such the same being neither instrumentality nor agency of government cannot be said to be an authority and, therefore, it is not State within the meaning of Article 12 of the Constitution.”
2.1. Therefore, merely because a company is Govt. Company it is not state within the meaning of Article 12 of the Constitution of India and not amenable to writ jurisdiction under Article 226 of the Constitution of India. The authority of the Hon’ble e supreme court in (2003) 8 SCC 639 at para 8 is quoted below :
“ ……. 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 co-operative 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…………….”
3. In VST Industries Limited vs. VST Industries Workers' Union and Anr.(2001) 1 SCC 298, the appellant-company was engaged in the manufacture and sale of cigarettes. A petition was filed by the first respondent under Article 226 of the Constitution seeking a writ of mandamus to treat the members of the respondent Union, who were employees working in the canteen of the appellant's factory, as employees of the appellant and for grant of monetary and other consequential benefits. The canteen was provided in the factory premises of the appellant pursuant to Section 46 of the Factories Act, which obliges a factory employing more than 250 workmen to provide such a canteen. The respondent contended that the appellant had been managing the canteen up to the year 1982 and thereafter introduced the contract system for maintaining the canteen so established. As such, the respondent contended that in running a canteen under Section 46 of the Act, the appellant was discharging a public duty and, therefore, a writ of mandamus would lie against it. Speaking for the Bench, Hon’ble Mr. Justice Rajendra Babu, (as he then was), observed and held as follows:
"7. In de Smith, Woolf and Jowell's Judicial Review of Administrative Action, 5th Edn., it is noticed that not all the activities of the private bodies are subject to private law, e.g., the activities by private bodies may be governed by the standards of public when its decisions are subject to duties conferred by statute or when by virtue of the function it is performing or possible its dominant position in the market, it is under an implied duty to act in the public interest. By way of illustration, it is noticed that a private company selected to run a prison although motivated by commercial profit should be regarded, at least in relation to some of its activities, as subject to public law because of the nature of the function it is performing. This is because the prisoners, for whose custody and care it is responsible, are in the prison in consequence of an order of the court, and the purpose and nature of their detention is a matter of public concern and interest. After detailed discussion, the learned authors have summarized the position with the following propositions:
(1) The test of a 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 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.”
3.1. Applying the above principles, the Apex Court held the writ petition as not maintainable.
4. In 2019 (4) SCALE 600, the Hon’ble Supreme Court, after referring to the observations made in the case of Ramesh Ahluwalia v. State of Punjab & Ors. (2012) 12 SCC 331 (observation quoted in para 4.1 infra) , held that Writ Application is maintainable even as against the private unaided educational institutions. Providing Education to children has been held to be a Public Function.
4.1. “13. in the aforesaid case, this Court was also considering a situation where the services of a Lecturer had been terminated who was working in the college run by the Andi Mukti Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust. In those circumstances, this Court has clearly observed as under:(V.R. Rudani case, SCC PP. 700-701, paras 20 & 22)
20. The term 'authority' used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights Under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words 'any person or 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 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.
22. Here again, we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the Statute. Commenting on the development of this law, Professor de Smith states: 'To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract. We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found'. Technicalities should not come in the way of granting that relief Under Article 226. We, therefore, reject the contention urged for the Appellant on the maintainability of the writ petition.
The aforesaid observations have been repeated and reiterated in numerous judgments of this Court including the judgments in Unni Krishnan and Zee Telefilms Ltd. brought to our notice by the learned Counsel for the Appellant Mr. Parikh.
14. In view of the law laid down in the aforementioned judgment of this Court, the judgment of the learned Single Judge as also the Division Bench of the High Court cannot be sustained on the proposition that the writ petition would not maintainable merely because the Respondent institution is a purely unaided private educational institution. The Appellant had specifically taken the plea that the Respondents perform public functions i.e. providing education to children in their institutions throughout India.”
5. The Hon'ble Madras High Court in Writ petition No.W.P.No.22234 of 2016 with W.M.P.Nos.18968 of 2016 and 26265 of 2018, decided on 06.06.2019 (Jasmine Ebenezer Arthur Vs. HDFC ERGO General Insurance Company Limited and ORS.) observed and held :
"A reading of Article 226 makes it clear that it can be invoked not only for infringement of fundamental rights, but also for any other purpose. Therefore, as stated above, the question that requires determination is whether the private bodies performing public duties can be brought within the purview of judicial review. If a private body is brought within the purview of Article 12, then it will be subject to constitutional limitations. As happened in this case, lack of effective control has made the private bodies acquire more power similar to public authorities. The public monopoly power is replaced by private monopoly power. Hence, it becomes necessary that the private bodies should be made accountable to judiciary within the judicial review. If any private body has a public duty imposed on it, the Court has jurisdiction to entertain the writ petition."
6. In CIVIL APPEAL No 10003 of 2010 (TRIGUN CHAND THAKUR vs. STATE OF BIHAR), decided on the 9th. July 2019, against the judgment and order of the Hon’ble Patna High Court by which the Division Bench affirmed the judgment of Single Bench holding that the Management Committee of the private schools is not “State” within the meaning of Article 12 of the Constitution of India and hence the writ petition of the petitioner is not maintainable.
6.1. Short facts pertaining to the matter are:-
i. The appellant was appointed as a Sanskrit teacher. On certain allegations, against the appellant by the School, a show cause notice was issued to him thereafter the appellant received communication that he was suspended on account of his absence on the eve of Independence Day and Teachers’ Day.
ii. Being aggrieved, the appellant has filed the writ petition before the High Court. During the pendency of the Writ petition, the service of the appellant was terminated . Hon'ble Single Judge disposed of the writ petition with the consent of both the parties observing that the appellant may agitate his rights before the Chairman of the Bihar Sanskrit Shiksha Board and the Chairman of the Board shall consider the representation of the appellant and dispose of the same in accordance with law.
iii. The Chairman, Bihar Sanskrit Shiksha Board, considered the matter on the basis of representation of the appellant and found that the punishment of termination of the appellant from service was disproportionate and directed reinstatement of the appellant. Being aggrieved, Managing Committee filed an appeal before the Special Director, Secondary, Primary and Adult Education under Section 24 of the Bihar Sanskrit Shiksha Board Act, 1981. The Special Director (Secondary Education) remanded the matter back to the Chairman, Bihar Sanskrit Shiksha Board, with a direction to reconsider the matter.
iv. Being aggrieved by the said remand, the appellant filed writ petition before the High Court. The Hon'ble Single Judge placed reliance upon the Judgment of the Patna High Court in Chandra Nath Thakur v. The Bihar Sanskrit Shiksha Board & Ors., 1999 (1) PLJR 529 and dismissed the writ petition and held that in matters relating to the termination of the teachers by the Managing Committee of the private school, the writ petition is not maintainable.
iv. Being aggrieved, the appellant filed L.P.A. which was dismissed.
6.2. The Hon'ble Supreme dismissed the Appeal filed against the judgment and order of the Division Bench of Hon’ble Patna High Court, and observed and held as under:
"The Division Bench vide impugned order dated 21.01.2008 dismissed the L.P.A. filed by the appellant and affirmed the order passed by learned Single Judge. In the impugned order, the Division Bench of the High Court has also placed reliance on Chandra Nath Thakur v.The Bihar Sanskrit Shiksha Board & Ors., 1999 (1) PLJR 529 and held that a teacher of a privately managed school, even though financially aided by the State Government or the Board, cannot maintain a writ petition against an order of termination from service passed by the Management Committee. The Division Bench also pointed out that the consent order passed by the High Court in C.W.J.C. NO.10698 of 1994 cannot confer Jurisdiction on this Court and does not make the Managing Committee “State” within the meaning of Article 12 of the Constitution of India.
"Having considered the submissions of learned counsel for the parties and the materials on record, we do not find any ground to take a different view."
7. In this connection, however, it is noteworthy that in the case reported in 2019 (4) SCALE 600 , decided by the Hon’ble Supreme Court on 14th. Feb. 2019, in which the main question for consideration was as to maintainability of writ petition against private school receiving grant in aid to the extent of dearness allowance.
7.1. The Hon'ble Supreme Court, inter alia, observed and held:
"Writ application was clearly maintainable in view of aforesaid discussion and more so in view of the decision of this Court in Ramesh Ahluwalia v. State of Punjab & Ors. (supra) in which this court has considered the issue at length and has thus observed:
“13. in the aforesaid case, this Court was also considering a situation where the services of a Lecturer had been terminated who was working in the college run by the Andi Mukti Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust. In those circumstances, this Court has clearly observed as under:(V.R. Rudani case, SCC PP.700-701, paras 20 & 22) “20. The term 'authority' used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words 'any person or 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 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."
Summary of Question- Writ Petition in case of Alternate Remedy
Question – Whether a writ petition would be maintainable when Alternate Remedy is available.
Answer- Yes, but in certain situation. Mere Existence of Alternative remedy is no bar for Writ Jurisdiction under Article 226 of the Constitution in all cases. Writ petition may be maintainable depending on the facts and circumstances of the case concerned in the discretion of the High Court.
In Civil Appeal No. 5654 of 2019 (Maharashtra Chess Association vs. Union of India), decided on 29th. July 2019, the Hon’ble Supreme observed and held :
'The existence of an alternate remedy, whether adequate or not, does not alter the fundamentally discretionary nature of the High Court’s writ jurisdiction and therefore does not create an absolute legal bar on the exercise of the writ jurisdiction by a High Court. The decision whether or not to entertain an action under its writ jurisdiction remains a decision to be taken by the High Court on an examination of the facts and circumstances of a particular case.'
' This understanding has been laid down in several decisions of this Court. In Uttar Pradesh State Spinning Co Limited v R S Pandey * this Court held:
"11.Except for a period when Article 226 was amended by the Constitution (Forty- Second Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction or discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy." '
* (2005) 8 SCC 264
' The principle that the writ jurisdiction of a High Court can be exercised where no adequate alternative remedies exist can be traced even further back to the decision of the Constitution Bench of this Court in State of Uttar Pradesh v Mohammad Nooh,* where Justice Vivian Bose observed:
"10.In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. (Halsbury's Laws of England, 3rd Ed., Vol. 11, p. 130 and the cases cited there). The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies.” '
*13 1958 SCR 595
'The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst
Summary of question- DNA Test
Question- Can a prayer for DNA Test be ordered in all cases.
Answer – Not in all cases. It (DNA Rest) can be ordered only , if there is strong prima facie case based on materials on record.
1. Following observation of a three Judge Bench of the Hon’ble Supreme Court in a case reported in AIR 2003 SC 3450 are ralevant:
“1. A matrimonial court has the power to order a person to undergo medical test.
2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution
3. However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.”
2. Hon’ble supreme Court observation in the case reported in AIR 2010 SC 2851 are :
“In a matter where paternity of a child is in issue before the court, the use of DNA is an extremely delicate and sensitive aspect. One view is that when modern science gives means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the court must be reluctant in use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception.
In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA is eminently needed. DNA in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of `eminent need' whether it is not possible for the court to reach the truth without use of such test.”
3. In view of the Hon'ble Supreme Court decision in CRIMINAL APPEAL NO. 1186 OF 2019 (KATHI DAVID RAJU vs THE STATE OF ANDHRA PRADESH), decided on the 5th. August 2019, a Court can order for DNA Test only if the court is satisfied on the basis of materials on record. The following observations / findings of the Hon'ble Supreme Court are noteworthy :
"There can be no dispute to the right of police authorities to seek permission of the Court for conducting DNA test in an appropriate case. In the present case, FIR alleges obtaining false caste certificate by the appellant by changing his name and parentage. The order impugned itself notices that investigation is not yet completed and material evidence are yet to be collected. The police authorities without being satisfied on material collected or conducting substantial investigation have requested for DNA test which is nothing but a step towards roving and fishing enquiry on a person, his mother and brothers. It is a serious matter which should not be lightly to be resorted to without there being appropriate satisfaction for requirement of such test."
" It is the submission of learned counsel for the respondent that Section 53 Cr.P.C empowers the police authorities to request a medical practitioner to conduct examination of a person. There cannot be any dispute to the provision empowering police authorities to make such a request. Present is a case where without carrying out any substantial investigation, the police authorities had jumped on the conclusion that DNA test should be obtained. It was too early to request for conduct of DNA test without carrying out substantial investigation by the police authorities. The Additional Junior Civil Judge also failed to notice that in the investigation conducted by the Investigating Authority no such materials have been brought on the basis of which it could have been opined that conducting DNA test is necessary for the appellant on his mother and two brothers."