1998(2) ALL MR 3
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.P. SARAF AND A.Y. SAKHARE, JJ.
Shri. Vishnu Dattatraya Redekar & Ors. Vs. The Director, Nehru Centre, & Ors.
Writ Petition No. 1744 of 1997
15th December, 1997
Petitioner Counsel: C.U. SINGH with S.R. PANDEY i/b. SANJAY UDESHI & CO.
Respondent Counsel: Ms. N.S. VENGSARKAR with T.R. YADAV
Constitution of India, Art. 12 - State - Registered society - Executive Committee elected by general body having direct control over its activities, financial resources and funds - Society cannot be considered as a State or instrumentality or agency of State. (Para 8)
A. Y. SAKHARE, J.:- By this writ petition under Article 226 of the Constitution of India, the petitioners are praying for declaration that there exists relationship of master and servant between the petitioners and the respondent No.1 and that the respondent No.1 be declared as direct employer of the security guards as per the list at Exh.'A' within the meaning of the Industrial Disputes Act, 1947. The petitioners have also prayed for injunction against the respondent No.1 from terminating the services of the security guards.
2. As per the petitioners, the respondent No.1 is an appropriate Government for the purposes of the notification dated 9-12-1976 issued by the Central Government under the provisions of the Contract Labour (Regulation & Abolition) Act, 1971. As per the petitioners, in view of this notification, the respondent No.1 is prohibited from employing contract labours for sweeping, cleaning, dusting and watching of building owned by the establishment in respect of which Central Government is the owner. As per the petitioners, as per definition of the 'appropriate Government' as amended in 1986 under the provisions of the Contract Labour (Regulation & Abolition) Act, 1971 and as per the definition of the said term as it appears in the Industrial Disputes Act, 1947, the Central Government is the appropriate Government in respect of the respondent No.1, hence, the respondent No.1 be prohibited from employing contract labours for watching over building owned and occupied by it.
3. Mr Sumendra P. Verma, Joint Director (Maintenance) of the respondent No.1 has filed his affidavit in reply on behalf of the respondent No.1. In affidavit-in-reply, plea of maintainability of this petition under Article 226 of the Constitution of India on the ground that the respondent No.1 is not a State or instrumentality or agency of the State is raised. It is also submitted that the Central Government is not the appropriate Government in respect of the respondent No.1 for the purposes of the provisions of the Contract Labour (Regulation & Abolition) Act, 1971 and the Industrial Disputes Act, 1947.
4. In affidavit-in-reply, details about the respondent No.1 such as its constitution, functioning and management are given. The Memorandum of Association and Rules and Regulations of the respondent No.1 are also annexed to this affidavit. The respondent No.1 is registered as a society under provisions of the Societies Registration Act, 1860 and as a public trust under the provisions of the Bombay Public Trust Act, 1950. The objects for which the respondent No.1 is established are as under :
(a) To inculcate and promote new social values, secularism, and national integration and spread a humane, self-reliant and rational outlook on life.
(b) To perpetuate the memory of late Shri Jawaharlal Nehru by undertaking educational, social, cultural, medical relief and other charitable activities for the welfare of children, and especially weaker sections of the community.
(c) To promote the cause of education, art, culture and communal harmony and to undertake scientific, statistical and other research in social and other sciences and technology for the advancement and emancipation of our countrymen.
(d) To diffuse useful knowledge relating to Nehru's ideals and philosophy and the aims and objects of the society by means of oral instructions, publication of literature and holding dramatic competitions, exhibitions and demonstrations on no profit basis calculated to advance and achieve the above objects.
(e) Doing all such other lawful things as are incidental to the attainment of the above objects."
5. The executive committee of the respondent No.1 has complete and direct control over the activities of the respondent No.1. As per rule-2 of the Rules, any person is eligible to be elected as ordinary member and persons who have rendered distinguished services to the respondent No.1 can be elected as honorary members. Discretion solely vests in the executive committee to admit any person as member and to accept donation or not. The executive committee is elected by the General Body for every three years. The Chairman and Vice-Chairman of the executive committee are elected for the period of three years from the members of the executive committee. At the time of formation of the respondent No.1, first committee consisted of the Chief Minister of Maharashtra, two State Ministers, two Union Ministers, Mayor of Bombay and other distinguished persons from the society. As position stands today, the executive committee consists of elected members by the General Body. The Chairman and Vice-Chairman are elected by the members of the executive committee. General Secretary, Treasurer and Joint Secretary are appointed by the Chairman. There are two representatives each of the State Government and Central Government (Ex-officio). The Mayor of Bombay is also Ex-officio member.
6. As per the petitioners, as there are two members (as ex-officio) each from the State Government and Central Government on the executive committee and as the respondent No.1 has to obtain prior permission from Central Government before making capital investment and disposal of assets including lease or sale of premises and change in the provisions of the Trust Deed including the aims, objects and constitution of the respondent No.1, the respondent No.1 is state or instrumentality or agency of the State. Reliance is placed upon the decision of the apex Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others Vs. V.R. Rudani and others reported in (1989) 2 Supreme Court Cases 691.
7. On behalf of the respondent No.1 it is contended that considering the memorandum of association along with the rules and regulations of the respondent No.1 and in view of the Full Bench decision of this Court in the Shamrao Vithal Co-operative Bank Ltd. and another v/s. Padubidri Pattabhiram Bhat and another reported in 1991 Mh.L.J. 1, decision of Division Bench of this Court in Sarva Shramik Sangh and others v/s. The Union of India and others in Writ Petition No. 1611 of 1997 decided on 11-12-1997 and the decisions of the Supreme Court in Sabhajit Tewary v/s. Union of India and others reported in AIR 1975 Supreme Court 1329, Tekraj Vasandi alias K.L. Basandhi v/s. Union of India and others reported in (1988) 1 Supreme Court Cases 236 and Chander Mohan Khanna v/s. National Council of Educational Research and Training and others reported in (1991) 4 Supreme Court Cases 578, the respondent No.1 cannot be treated as State or instrumentality or agency of the State. The learned counsel for the respondent No.1 further stated that Central Government is not the appropriate Government in respect of the respondent No.1 for the purposes of the provisions of the Contract Labour (Regulation & Abolition) Act, 1971.
8. By reading the memorandum of association and the rules and regulations of the association, it is clear that the respondent No.1 is independent and autonomous body and its affairs are looked after by the executive committee elected as per the constitution and rules. The respondent No.1 has its own financial resources and funds. The Respondent No.1 is not under the control of Central Government nor Central Government is the appropriate Government in respect of the respondent No.1 for the purposes of the provisions of the Contract Labour (Regulation & Abolition) Act, 1971 or the Industrial Disputes Act, 1947. Considering the law laid down by this Court and by the Supreme Court referred to above, the respondent No.1 being autonomous body cannot be declared as a State or instrumentality or agency of the State within the meaning of Article 12 of the Constitution of India. Consequently, the respondent No.1 will not be amenable to the writ jurisdiction of this Court.