Calcutta High Court (Appellete Side)
Sri Subir Dutta vs National Book Trust & Ors on 1 August, 2011
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
1
01.08.2011.
W.P. No. 9429 (W) of 2011
Sri Subir Dutta
Versus
National Book Trust & Ors.
Mr. P.K. Bhattacharya.
...For the Petitioner.
Mr. Dhrubajyoti Ghosh,
Mr. Monish Sen.
...For the Respondents.
This writ application is filed by the petitioner for a direction upon the respondent Nos.1 to 4 to reinstate him in the post of Regional Manager of Eastern Region of the respondent No.4 with all benefits without deducting anything for the period of his suspension.
At the very outset a preliminary objection is raised on behalf of the respondent Nos.1 to 4. According to the learned Counsel appearing for the respondent Nos.1 to 4, the respondent No.4 is an instrumentality of the State. According to him, the activities of the respondent No.4 are not wholly related to Government functions. Only 4 out of 14 members of the Board of Trust are appointed by the Government of India. The funds of the respondent No.4 consist of (i) grants made by the Government of India for the furtherance of the objects of the Trust; (ii) contribution from other sources; (iii) income from the assets of the Trust; (iv) income from sale of its publications; and
(v) receipts of the Trust from other sources. 2 According to him, the respondent No.4 is free to utilize its income and property towards promotion of its objectives. The Government control is confined only to proper utilization of the Government grants.
According to him, considering the aforesaid aspects, a Division Bench of Delhi Court held in the matter of J.S. Shami vs. National Book Trust of India (In Re: CW 1446 of 1989) that the respondent No.4 is not an instrumentality of the State. Reliance is also placed on the decision of Chander Mohan Khanna vs. National Council of Educational Research & Training & Ors. reported in AIR 1992 SC 76 in support of the above submissions.
On the other hand, the attention of this Court is drawn by the learned Counsel appearing on behalf of the petitioner towards Clause 5 of the Memorandum of Association of the respondent No.4 to show that the Trust is ultimately controlled by the Government of India. The attention of this Court is further drawn toward the provisions of Clause 51 (a) of the Rules of the National Book Trust, India, to show that there is deep and pervasive control of Ministry of Education and the Finance Minister of the Government of India with regard to a decision in the matters beyond the delegated powers of the respondent No.4.
I have heard the learned Counsel appearing for the respective parties at length and I have considered the facts and 3 circumstances of this case carefully. In order to adjudicate the issue of maintainability of an application under Article 226 of the Constitution of India against the respondent No.4 the following admitted facts are taken into consideration.
According to Clause 3 of the Memorandum of Association of the respondent No.4, the following are the objects of the respondent No.4:
"3. The objects for which the Trust is established are:
a) to produce and to encourage the production of good literature, and to make such literature available at moderate prices to the public;
b) in furtherance of the above objectives to publish more particularly books of the following types in English, Hindi and other languages recognized in the Constitution of India:
i) the classical literature of India;
ii) outstanding works of Indian authors in
Indian languages and their translation
from one Indian language to another;
iii) translation of outstanding books from
foreign languages;
iv) outstanding books of modern knowledge
for popular diffusion;
c) to bring out book lists, arrange exhibitions and
seminars and take all necessary steps to make the people book minded;
d) to establish or promote the formation of regional Book Trusts in different parts of the 4 country with objectives similar to those of the Trust;
e) to take over or amalgamate with any other Society, Trust, Institute or Association, having objects wholly or in part similar to the objects of the Trust, and to aid any such existing institution in such matter as the Executive Committee of the Trust may think fit;
f) to acquire by gift, purchase, lease or otherwise any property, movable or immovable, which may be necessary or convenient for the purpose of the Trust and to construct, alter and maintain any building or buildings for the purposes of the Trust;
g) to draw, make, accept, endorse, discount and negotiate Government of India and other promissory notes, bills of exchange, cheques and other negotiable instruments;
h) to invest the funds of the Trust in such securities or in such manner as may, from time to time, be determined by the Executive Committee and, from time to time, to sell or transfer such investments;
i) to sell, transfer, lease or otherwise dispose of all or any property of the Trust;
and
j) to do all such things as the Trust may consider necessary, incidental or conducive to the attainment of the above objects."
The funds of the respondent No.4 consist of the following:
"54. The funds of the Trust shall consist of the following: 5
i) Grants made by the Government of India for the furtherance of the objects of the Trust;
ii) contribution from other sources;
iii) income from the assets of the Trust;
iv) income from sale of its publications; and
v) receipts of the Trust from other sources."
The funds of the Trust are controlled in the following manner:
"56. The person appointed by the Government representing the Ministry of Finance on the Executive Committee of the Trust shall be the Financial Advisor to the Trust.
57. All matters relating to the affairs of the Trust having financial implication shall be referred to the Financial Adviser for his advice in cases where powers may be delegated to the officers of the Trust under the Regulations.
Subject to the provisions of Rule 51(a), when the advice of the Financial Adviser is not proposed to be accepted, the matter shall be referred to the Trust which shall take such decision as may be deemed fit after the Financial Adviser has been given an opportunity to express his point of view."
The functions of the Chairman of the Trust of the respondent No.4 is subject to the restrictions as prescribed in Rule 51(a) of the Rules as under:
"51.a) In the event of disagreement between representatives of the Ministry of Finance and the Chairman on financial matters beyond the delegated 6 powers of the National Book Trust, India, the matter may be referred to the Minister of Education and the Finance Minister for a decision."
The Trust is free to utilize its income and property towards promotion of the objects as set forth in its Memorandum of Association subject to the control of the Government of India in respect of expenditures of grants made by the Government of India in terms of Clause 4 of the Memorandum of Association. However, the Trust can discharge its function subject to comply with the directions of the Government of India in Clause 5 of the Memorandum of Association which is quoted below:
"5. The Government of India may appoint one or more persons to review the work and progress of the Trust in such manner as the Government of India may stipulate; and upon receipt of any such report the Government of India may take such action and issue such directions as it may consider necessary in respect of any of the matters dealt with in the report and the Trust shall be bound to comply with such directions."
From the aforesaid provisions, it is an admitted position that the activities of the respondent No.4 are not wholly related to Government functions. The members of the Trust consist of only 4 members out 14 members from the Government side. There are four sources creating the funds of the respondent No.4 apart from the Government grants. But upon consideration of the provisions of Rules 56 and 57 of the Rules of National Book 7 Trust, India, I find that the members of the Trust are under obligation to utilize the funds of the respondent No.4 subject to the control of a financial adviser appointed by the Government of India through Ministry of Finance. Upon further consideration of the provisions of Rule 51(a), I find that in case of the financial matters beyond the delegated powers of the National Book Trust, India, the decision of the Ministry of Education and that of the Finance Minister prevail over the decision of the Chairman of the members of the Trust of the respondent No.4. That apart Clause 5 of the Memorandum of Association shows that the Government of India may appoint one or more persons to review the work and progress of the Trust and in that event the Government upon consideration of the report in that matter may take such action and issue such directions as it may consider necessary in respect of any of the matters dealt with in the report and the Trust is bound to comply with such directions. Therefore, there is deep and pervasive control of the Government of India on the management as also on utilization of funds of the Trust and it is an instrumentality of the State.
With regard to the decision in the matter of J.S. Shami (supra), I find that without examining the control of the Government of India over the respondent No.4, in details, reliance was placed by the Court on the decision of Chander 8 Mohan Khanna (supra) to come to a conclusion that there was essential difference between the constitution of National Council of Educational Research and Training with the respondent No.4. But upon consideration of Clause 5 of the Memorandum of Association of the respondent No.4 and Rules 56, 57 and 51(a) of the Rules of National Book Trust of India, I find that the Constitution of the respondent No.4 is different from the above Organisation. Therefore, the decision of Chander Mohan Khanna (supra) has no manner of application in this case in view of the distinguishable facts and circumstances of this case. So far as the decision of a Division Bench in the matter of Sri Abanindra Mohanty vs. Union of India & Ors. in W.P.C.T. No.43 of 2010 is concerned, prima facie I find that the provisions of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 was under consideration in that matter.
In view of the discussions and observations made hereinabove, the preliminary objection raised on behalf of the respondent Nos.1 to 4 is rejected.
Let affidavit‐in‐opposition be filed within four weeks, reply, if any thereto be filed one week thereafter.
Let this matter appear before appropriate Bench after six weeks.
Regarding prayer for stay of operation of the impugned order dated December 29, 2010 passed by the respondent No.3, 9 upon prima facie consideration of the provisions of Regulations 31 and 45(b) of the Regulations (By‐Laws) framed in accordance with the Rule 42 of the Rules of the Trust, I find that the balance of convenience and/or inconvenience is in favour of rejecting the above prayer for passing an interim order in the matter.
Therefore, the prayer for interim order is rejected. However, all the steps taken or to be taken against the petitioner in the matter shall abide by the results of this writ application. srm ( Debasish Kar Gupta, J. )