Calcutta High Court (Appellete Side)
Samir Chakraborty vs The Institution Of Engineers (India) & ... on 29 August, 2018
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
1
29.08.18
3 ab
W.P. 9768(W) of 2018
Samir Chakraborty
-Vs
The Institution of Engineers (India) & Ors.
Mr. Kamlesh Jha,
Ms. Srabani Biswas,
... for the petitioner
Mr. Soumya Majumder,
Mr. Asit Kr. Dey,
Ms. S. Dutta,
... for the respondent Nos. 1 to 3
Mr. Shailendra Kr. Mishra, ... for the respondent No. 4 The petitioner is an employee of the Institution of Engineers (India) (Institution, for short), i.e the respondent No. 1 herein. He is challenging an order of transfer from Kolkata to Delhi. Although initially a limited interim order was granted restraining the respondents from implementing the order of transfer, Mr. Majumder, the learned advocate for the respondent Nos. 1 to 3 have taken the point of maintainability of the writ petition. The Court directed that since the issue relating to maintainability had been taken that should be decided first. Consequently, the preliminary point was taken for consideration though the interim order was re-imposed after the expiry of the initial interim order.
Mr. Majumder submitted that the respondent No. 1 was initially incorporated under the Companies Act, 1913 and was subsequently incorporated under the Royal Charter of 1935 containing a grant by the Crown of the United Kingdom in the form of Letters Patent. It is not a creature of any statute, but is 2 governed by its own bye-laws and regulations. As such, it cannot be held to be a 'State' within the meaning of Article 12 of the Constitution of India.
Mr. Jha, the learned advocate for the petitioner submitted that once it has been incorporated under a Royal Charter, it has the force of law and it also comes within the purview of 'State' within the meaning of Article 12 discharging public functions.
In support of his contention, Mr. Jha relied on the case of Rajasthan State Electricity Board, Jaipur Vs. Mohan Lal & Ors., reported in AIR 1967 SC 1857 for a proposition that the State, as defined under Article 12, is comprehended to include bodies created for the purpose of promoting the educational and economic interest of the people.
Based on that, Mr. Jha submitted that since the basic purpose for incorporation of the respondent No. 1 Institution is to spread knowledge of engineering in its various branches, it should also qualify as a 'State' within the meaning of Article 12. He also relied on judgements of some High Courts where the respondent No. 1 had been treated as a 'State' and, therefore, was amenable to writ jurisdiction.
That, however, is not the view of this Court. More than four decades ago, this question came up for consideration in the case of Radha Kanat Samanta Vs. The Secretary, Ministry of Education & Ors., (Matter No. 803 of 1976). A learned Single Judge of this Court by an unreported judgement and order dated March 7, 1976 considered the parameters for treating an organization as a 'State' within the meaning of Article 12 of the Constitution of India and held that the Institution did not conform to any of these tests as it had no external or internal characteristics of an authority within the meaning of Article 12. It had not been under any statute nor did it depend for its continued existence of any statute. It did not discharge any governmental function nor did it administer or implement 3 any law. The actions of the Institution, the learned Judge observed, were not protected by any statute. The learned Judge also very specifically observed that since it was incorporated under the Companies Act, it could not claim to be of a status higher than a company or a registered society. The writ petition was ultimately dismissed.
About two decades thereafter, the identical question again cropped up before a learned Single Judge of this Court in the case of Saikat Ghosh Vs. The Institution of Engineers (India) and others, reported in AIR 1996 Cal 47, where also the point of maintainability was taken by the respondents relying on the various judgements including Radha Kanta Samanta (supra). Relying on Radha Kanta Samanta (supra), this Court had again held that even if the Institution had its contribution in maintaining a high professional standard and discharging a public duty as a private social organization but that fact by itself was not sufficient to bring it within the folds of expression a 'State' under Article 12 of the Constitution of India. An argument similar to the one advanced by Mr. Jha in this case was also advanced before the Court in that case that the Institution was acting to spread the knowledge of engineering and was giving certificates which were equivalent to the degrees given by the engineering colleges. Such an argument did not find favour with the Court as the Institution did not confer any degree and the certificates issued by the Institution were in the nature of proficiency certificates for which there is no statutory requirement. This Court held that it was not a 'State' within the meaning of Article 12 of the Constitution of India and, therefore, the writ petition was not maintainable.
It is true that there are judgements of some High Courts which have taken a slightly different view as much as there are judgements of other High Courts which have also held that the Institution is not amenable to the writ jurisdiction. In the case of Saikat Ghosh (supra), reliance was made to the case of Ashwini Kumar Vs, The Institution of Engineers (India), reported in AIR 1986 All 251 and 4 the unreported Judgement of the Pubjab and Haryana High Court in the case of Shri Kaka Singh Ramji Vs. The Council of Institution of Engineers (India) (Civil Rule No. 4174 of 1973) wherein it was held that the writ petition was not maintainable against the Institution which was not a 'State' within the meaning of Article 12 of the Constitution of India.
I am in respectful agreement with the view taken by the learned Judges of this Court. Mr. Jha wanted to impress upon the Court that when there are judgements of other High Courts which have taken a view different from one taken by this Court, they are equally binding upon a learned Judge of this Court.
I am afraid, such is not the legal position. The Judgements of other High Courts, even if, passed by a larger Bench have certainly a persuasive value but are not binding on a different High Court, particularly when the same High Court has taken a contrary view. This position of law is very well settled. The judgement and order not only of a larger Bench but also of a co-ordinate Bench binds a co- ordinate Bench of the same Court.
That being the persistent view of this Court, I am of the view that the respondent No. 1 Institution is not a 'State' within the meaning of Article 12 of the Constitution of India and, therefore, the respondent Nos. 1 to 3 are not amenable to the writ jurisdiction of this Court.
The writ petition is dismissed. Interim order, if any, stands vacated.
There shall be no order as to costs.
Urgent Photostat certified copy of the order, if applied for, be supplied to the parties at an early date.
(Dr. Sambuddha Chakrabarti,J)