Karnataka High Court
Smt Veena Harish vs The State Of Karnataka on 16 November, 2018
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU R
DATED THIS THE 16TH DAY OF NOVEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO. 49636 OF 2018 (S-RES)
BETWEEN:
SMT. VEENA HARISH
AGED 41 YEARS
W/O SRI. HARISH
ACCOUNTS OFFICER
BANGALORE TURF CLUB LTD.,
NO.52, RACE COURSE ROAD
BANGALORE - 560 001.
... PETITIONER
(BY SRI. SUBRAHAMANYAM JOIS, SENIOR ADVOCATE FOR
SRI. K C SHANTAKUMAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
FINANCE DEPARTMENT
VIDHANA SOUDHA
VIDHANA VEEDHI
BENGALURU - 560 001.
2. THE BANGALORE TURF CLUB LTD.,
NO.52, RACE COURSE ROAD
BANGALORE - 560 001,
REPRESENTED BY ITS SECRETARY
... RESPONDENTS
(BY SRI. E S INDIRESH,AGA FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS RELATING TO CONCERNING AND CONNECTED
WITH THE LETTER DATED 12.10.2018 VIDE ANNEX-E AND
THE IMPUGNED COMMUNICATION DATED 31.10.2018 VIDE
ANNEX-G ISSUED BY R-2 PERUSE THE SAME AND DECLARE
THEM AS MALICIOUS AND DEVOID OF THE AUTHORITY OF
LAW AND TO QUASH THEM ACCORDINGLY.
2
THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Petitioner, a lady working as Accounts Officer in the employ of the 2nd respondent ie., the Bangalore Turf Club Limited, a company incorporated under the erstwhile Companies Act, 1956 vide Registration No.1446/1962 has crisply stated her grievance in the SYNOPSIS to the Writ Petition, as under:
"The petitioner is an Accounts Officer in the services of the 2nd respondent. She has been discharging her duties sincerely, and dedicatedly. Certain officers of the 2nd respondent named in the petition have been on a tirade against her since she was recommended for appointment by a certain Sri Harindra Shetty former Chairman of the Staff Recruitment Sub-Committee. The officers of the 2nd respondent who have been named in the petition have been carrying a bias towards the said Shetty. Since the petitioner's appointment has been recommended by him she is being harassed and humiliated. Besides, the conditions of her services have been unilaterally changed. Notwithstanding that she has committed no dereliction of duty, she has been served with the Show Cause Notice vide Annexure-E which has been duly replied to by her. Without consideration thereof the further communication vide Annexure-G has been issued, unfoundedly imputing to her dereliction of duties from which it is quite clear that she would be subjected to further harassment and vilification for no 3 discernable reason, but maliciously and vindictively. Hence, this petition".
2. The State of Karnataka being the 1st respondent entered appearance through the Addl. Government Advocate Prof. Indiresh, who raised the preliminary issue as to the maintainability of the writ petition on the ground that the 2nd respondent-Turf Club is not an instrumentality or an agency of the State as defined under Article 12 of the Constitution of India, going by the interpretation placed thereon by the Apex Court in a long line of decisions, otherwise arguable merits of petitioner's case notwithstanding. He banked upon the Division Bench decision of the Bombay High Court in the case of Pesi Shroff vs. State of Maharashtra and others AIR 1993 BOM 384.
3. The learned Senior Advocate Shri H.S.Jois taking the Court through various paragraphs of Memorandum and Articles of Association of the 2nd respondent-Turf Club vehemently submits that the 1st respondent-State exercises a pervasive control over the affairs of management of the Turf Club and therefore it answers the description of 'other authorities' as explained by the Apex Court in a catena of decisions. Although the learned Senior Advocate referred 4 to several decisions of the Apex Court, I have refrained from reproducing the discussions therein, inasmuch as they are more or less a reiteration of what is well settled position of law.
4. It is pertinent to quote what the learned authors being the Law Teachers in University of Leeds, U.K. namely, Nick Taylor and Andrew Francis in their Text Book "FOUNDATIONS OF LAW," at page 7 write "Numerous cases are published in law reports, legal databases and online. In R vs. Erskine (2009) the Court of Appeal said lawyers needed to select carefully the cases they referred to in court or the justice system would be 'suffocated'. Only cases which established the principle of law under consideration should be cited. Authorities that merely illustrated the principle, or restated it, should not be cited. The court was thereby seeking to ensure that the doctrine of precedent is not overwhelmed by the sheer number of published judgments".
5. Mr. Jois, heavily relied upon the Apex Court decision in the case of Balmer Lawrie & Company Limited & others vs. Partha Sarathi Sen Roy and others, (2013) 8 SCC 345, which has virtually surveyed all important 5 decisions cited by him under Article 12 of the Constitution of India. The gist of paragraphs 22, 23, and 28 as succinctly stated by the Editor of the journal and emphatically read out by the learned Senior Counsel are reproduced below:
"22. In light of the aforementioned discussion, it is evident that it is rather difficult to provide an exhaustive definition of the term "authorities", which would fall within the ambit of Article 12 of the Constitution. This is precisely why only an inclusive definition is possible. It is in order to keep pace with the broad approach adopted with respect to the doctrine of equality enshrined in Articles 14 and 16 of the Constitution, that whenever possible courts have tried to curb the arbitrary exercise of power against individuals by centers of power, and therefore, there has been a corresponding expansion of the judicial definition of the term "State" as mentioned in Article 12 of the Constitution.
23. In light of the changing socio-economic policies of this country, and the variety of methods by which government functions are usually performed, the court must examine, whether an inference can be drawn to the effect that such an authority is in fact an instrumentality of the State under Article 12 of the Constitution. It may not be easy for the court, in such a case, to determine which duties form a part of private action, and which form a part of State action, for the reason that the conduct of the private authority may have become so entwined with governmental policies, or so impregnated with governmental character, so as to become subject to the constitutional limitations that are placed upon State action. Therefore, the court must determine whether the aggregate of all relevant factors once considered, would compel a conclusion as 6 regards the body being bestowed with State responsibilities.
28. In order to determine whether an authority is amenable to writ jurisdiction except in the case of habeas corpus or quo warranto, it must be examined, whether the company/corporation is an instrumentality or an agency of the State, and if the same carries on business for the benefit of the public; whether the entire share capital of the company is held by the Government; whether its administration is in the hands of a Board of Directors appointed by the Government; and even if the Board of Directors has been appointed by the Government, whether it is completely free from governmental control in the discharge of its functions; whether the company enjoys monopoly status; and whether there exists within the company, deep and pervasive State control. The other factors that may be considered are whether the functions carried out by the company/corporation are closely related to Governmental functions, or whether a department of the Government has been transferred to the company/corporation, and the question in each case, would be whether in light of the cumulative facts as established, the company is financially, functionally and administratively under the control of the Government. In the event that the Government provides financial support to a company, but does not retain any control/watch over how it is spent, then the same would not fall within the ambit of exercising deep and pervasive control. Such control must be particular to the body in question, and not general in nature. It must also be deep and pervasive. The control should not, therefore, be merely regulatory".
6. The learned Senior Advocate appearing for the petitioner, in his inimitable style submits that various 7 articles in the Memorandum and Articles of Association of the 2nd respondent-Turf Club prima facie show that the Government exercises a pervasive control over the affairs of the management of the Turf Club inasmuch as the Government will have about four Members as its nominees vide Regulation 32 & 46 and that no amendment can be made to the Memorandum/Articles without the prior consent of the Government and further that the horse- racing on the Race-Course of the 2nd respondent-Turf Club needs a license under Section 2-B of the Mysore Race- Courses Licensing Act, 1952. Thus he argues that the action and inaction of the Turf Club are susceptible to judicial review under Articles 226 & 227 of the Constitution of India.
7. The learned Addl. Government Advocate Prof. Indiresh, per contra submits that he has no quarrel with the growth of the law under Article 12 of the Constitution of India that has happened precedent by precedent, and that the broadening of the contours of the expression 'other authorities' appearing therein, as rightly contended by Shri Jois on the basis of several rulings considered in the case of Balmer Lawrie (supra). He further submits that even going by the widest understanding of the ever growing 8 ratio, the 2nd respondent-Turf Club does not fall within the penumbra thereof. In support of his submission, he banks upon the decision of the Bombay High Court in the case of Pesi Shroff (supra). Thus he seeks dismissal of the writ petition relegating the party to the other legal remedy.
8. I have heard the learned senior counsel for the petitioner and the learned Addl. Government Advocate Prof. Indiresh for the State. I have perused the writ petition papers and also the Memorandum and Articles of Association of the 2nd respondent-Turf Club, made available at the Bar. I have also carefully considered the decisions cited on either side.
9. The contention of the petitioner's side that the 2nd respondent-Turf Club is an instrumentality of the State in the light of the decision of the Apex Court in the case of Balmer Lawrie (supra) does not merit acceptance inasmuch as there is nothing in the Memorandum and Articles of Association of the 2nd respondent-Turf Club, which shows that the Government exercises any control over the managerial affairs of the Club, much less, the pervasive control. Regulation 7 at page 13 of the Memorandum and Articles of Association reads as under: 9
"7. Notwithstanding anything contained in Regulation 5, the members nominated by the Government of Karnataka under Regulations 32 and 16 to the Board of Stewards or to the Committee shall be entitled to all the rights and privileges of the Club Members except the right to vote at any general meeting of the club".
Thus the nominated Members whose number is frugal again, do not have the Right to Vote in the matters relating to affairs of management. The management is vested in the Committee which exercises the powers on the purse and property of the Turf Club, with no effective say from the side of the Government nominees.
10. The second contention of the petitioner that the Turf Club has been granted a license under Mysore Race- Courses Licensing Act, 1952, does not take petitioner's case an inch further, either. Merely because a license is required as a sine qua non for running of the business, one cannot hastily jump to the conclusion that the State exercises pervasive control. In a Welfare State, very many activities and ventures require the licenses under various legislations. The license is required for running an Arrack Shop and so also for a Crackers Shop and the license is a must for a Gun Shop. In respect of all these shops, the regulatory measures are strict & stringent. That does not 10 make them the instrumentalities or agencies of the State, since the control is regulatory as contra distinguished from a pervasive control. These regulatory measures do not imbibe their actions with sufficient public law element justifying invocation of judicial review. Thus the requirement of license or the presence of stringent regulatory measures does not per se bring them under the umbrella of 'other authorities' under Article 12.
11. In almost an identical matter, the Division Bench of the Bombay High Court in the case of Pesi Shroff (supra) has held that the Turf Club does not answer the description of 'other authorities' employed in Article 12 of the Constitution of India. At paragraph 13, that Court has observed as under:
"13. Keeping in view the above basic facts pertaining to the Turf Club and the Racing conducted by it, it seems to us that the Turf Club cannot come in the sweep of the concept 'other Authority' as contemplated under Article 12, for the reasons that follow:
1) The Turf Club is a limited liability Company incorporated under the Indian Companies Act;
2) Its objects are wide and varied and have no nexus with the discharge of regal, statutory or public functions of the State;
3) Racing is only one of the activities of the Club though an important one;
4) But for the provisions of the Act of 1912, some of the activities like betting on horse 11 races conducted by the Turf Club are illegal and prohibited under the general law;
5) Conditions of licence for racing and restrictions imposed thereunder are essentially regulatory in nature and are also to protect the revenue in the form of entertainment duty under the Bombay Entertainment Duty Act and tax on betting under the Bombay Betting Tax Act;
6) The Government neither holds the share capital of the Club nor funds it.
7) The Club and its activities including activity of racing are governed by the Managing Committee of 11 Members by Majority. Maximum 2 Members can be nominated by the Government. Those nominated members have no power to veto and no obligation to report to the Government. Government has no power to issue binding instructions to their nominees. Hence, there is no governmental control - in the case deep or pervasive - over the functions of the Club;
8) No monopoly is conferred by the statute upon the Club in the matter of conducting races;
9) The Club is not formed by transfer of any Government Department".
This Court is in complete agreement with the above observation of the said Court which in all fours apply to the case of the petitioner.
12. Barring the issue of the Turf Club being an instrumentality or agency of the State, the grievance of the petitioner going by the submission of the learned Senior 12 Advocate Shri H.S.Jois, appears to be genuine, however, subject to the say of the 2nd respondent-Turf Club. Since the petitioner is being relegated to other remedies, more is not necessary to discuss.
In the above circumstances, this Court declines to interfere in the matter. However, the observations made herein above shall not come in the way of petitioner pursuing her other legal remedies.
Sd/-
JUDGE Snb/