Gujarat High Court
Life Insurance Corporation Ltd vs Registrar on 14 October, 2013
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
LIFE INSURANCE CORPORATION LTD....Petitioner(s)V/SREGISTRAR GENERAL AND CENSUS COMMISSIONER OF INDIA C/SCA/5335/2010 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 5335 of 2010 With SPECIAL CIVIL APPLICATION NO. 5767 of 2010 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA : Sd/- ======================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not? YES 3 Whether their Lordships wish to see the fair copy of the judgment? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder? NO 5 Whether it is to be circulated to the civil judge? NO ======================================================= LIFE INSURANCE CORPORATION LTD....Petitioner(s) Versus REGISTRAR GENERAL AND CENSUS COMMISSIONER OF INDIA & 2....Respondent(s) ======================================================= Appearance: Special Civil Application No.5335 of 2010 MR BB NAIK, Sr. Adv. with MR AK CLERK for the Petitioner(s) No. 1 MR NISHANT LALAKIYA for the Respondent(s) No. 1 MR MAULIN R RAVAL for M/S RJ RAWAL ASSOC. for the Respondent(s) No. 2 3 Special Civil Application No.5567 of 2010 MR BHARAT T RAO for the Petitioner(s) No. 1 MR NISHANT LALAKIYA for the Respondent(s) No. 1 MR MAULIN R RAVAL for M/S RJ RAWAL ASSOC. for the Respondent(s) No. 3 - 4 ======================================================= CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 14/10/2013 COMMON ORAL JUDGMENT
Special Civil Application No.5335 of 2010 The present petition has been filed by the petitioner under Articles 14, 16 and 226 of the Constitution of India as well as under the Census Act, 1948 read with Rules framed thereunder for the prayer inter alia for quashing and setting aside the communication dated 26.04.2010 addressed by the respondent no.3 to the petitioner-Corporation and also for quashing and setting aside the notice dated 26.04.2010 issued to the respondent nos.3 to 339 employees of the petitioner-corporation on the grounds stated in the petition. Also for declaration that the respondents have no authority or jurisdiction to appoint the employees of the petitioner-corporation as Enumerators or Supervisors for the census work in the Census Act, 1948 (hereinafter referred to as the Act ).
The facts of the case briefly stated are that the petitioner is a Corporation established under the Life Insurance Corporation India Act, 1956. It is the financial organization undertaking the business of life insurance and is obliged to provide service of requisite standard as provided in the Act as well as Regulations framed under the Act. It is the case of the corporation that the respondent no.3 vide communication dated 26.04.2010 addressed to the Senior Division Manager, Ahmedabad Division issued a notice to the employees requiring the petitioner-corporation to depute 343 employees for the census duty. The petitioner-corporation has therefore filed the present petition challenging the impugned action on the ground that it is without jurisdiction and violative of Article 14 of the Constitution of India.
It is also contended that the petitioner-Corporation is a statutory body created and functioning under the special statute like LIC Act, 1956 and, therefore, the provisions of Census Act, 1948 would not be attracted. It is further contended that the petitioner is not a local authority within the meaning of Section 4(A) of the Act. Therefore, it is contended that the action of the respondent authorities is without any authority of law.
Heard learned senior counsel, Shri B.B. Naik appearing with learned advocate, Shri A.C. Clerk for the petitioner, learned counsel, Shri Nishant Lalakiya for the respondent no.1 and learned advocate, Shri Maulin Raval for R.J. Raval Associates appearing for the respondent nos.2 and 3.
Learned senior counsel, Shri Naik has referred to the papers and background and submitted that the employees of the petitioner-corporation have been appointed for the census duty by the impugned order. Learned senior counsel, Shri Naik referred to the scheme of the Act, particularly, Section 4 of the Act and submitted that it is an enabling provision for the appointment of the census staff. Learned senior counsel, Shri Naik also referred to the notification dated 18.02.2010 by the Gujarat Government, Gujarat Administrative Department and submitted that in exercise of power under Section 4(2) of the Act, Census Officers have been appointed with separate designation as stated in the notification. He pointedly referred to the area of Municipal Corporation, Ahmedabad City and submitted that the Municipal Commissioner is the authority, who could be appointed as a Principal Census Officer for such work within the limits of Ahmedabad City and urban area. Learned senior counsel, Shri Naik submitted that Section 7(b) of the Act refers to the local authority and the petitioner-corporation is not the local authority. He therefore submitted that though the notification has been issued, there is no such power under the Act to appoint any person like staff/employees of the LIC for the work of census. Learned senior counsel, Shri Naik submitted that Section 4 provides for the the power of the Central Government to appoint Census Commissioner and it also empowers the State Government to appoint person as Census Officer or to take aid from such persons. However, learned senior counsel, Shri Naik submitted that to call a person for assistance and aid in the work of Census Officer under the Act is different than the appointing employees of the Corporation itself as an officer or enumerators.
Learned senior counsel, Shri Naik submitted that as LIC is not the local authority, employees of the petitioner-corporation cannot be appointed for such work of census. He emphasized that it is well settled that the employees of such autonomous corporation are not the government employees, meaning thereby, as they are not the employees of the Government, the employees of the statutory corporation can be summoned for such work. He further emphasized that if there is no statutory provision enabling the exercise of such power, the order issued in purported exercise of the power under the Act is misconceived. Learned senior counsel, Shri Naik also referred to the scheme of the Act and submitted that there has to be a specific appointment or authorization to make any such appointment. Learned counsel, Shri Naik referred to and relied upon the judgment of the Hon ble Apex Court in case of Housing Board of Haryana Vs. Haryana Housing Board Employees Union & Ors., reported in AIR 1996 SC 434 & 1316 as well as in case of Calcutta State Transport Corporation Vs. Commissioner of Income-Tax, West Bengal, reported in AIR 1996 SC 1316 to support his contention that LIC is not a local authority.
Per contra, learned counsel, Shri Maulin Raval also referred to the affidavit as well as the scheme of the Act. He submitted that Section 7(c) of the Act refers to the fact that all officers and members of the staff of any establishment (Emphasis Supplied) can be called. He therefore submitted that LIC is an establishment. He pointedly referred to Law Lexicon Dictionary to support his submission that the petitioner would fall within the definition of establishment and would be entitled to summon the services of such person. He referred to the definition of establishment mentioned therein as, Establishment.
- The word establishment as given in Webster s International Dictionary (Vol.I) at page 874. It is there stated to mean . The place where one is permanently fixed for residence, or business; residence, including grounds, furniture, equippage, retinue, etc., with which one is fitted out also, an institution or place of business, with its fixtures and organized staff; as large establishment, a manufacturing establishment.
The dictionary meaning also tends to show that an establishment must have a separate identifiable existence.
Learned counsel, Shri Raval also referred to the background of the facts and submitted that it is a herculean task for the collection of data, which can be prepared by either appointing or with the aid of other persons. Learned counsel, Shri Raval also referred to the definition of establishment in Black s Law Dictionary.
Learned counsel, Shri Raval again referred to Section 7 of the Act and submitted that when the word establishment has been used, it would cover any such establishment. He submitted that such a system has been created for the public interest. Learned counsel, Shri Raval referred to and relied upon the judgment of the Hon ble Apex Court in case of Union of India & Ors. Vs N. Hargopal & Ors., reported in AIR 1987 SC 1227 and submitted that as provided in this judgment, word establishment has been considered and it will include the establishment in public sector. He emphasized that it should have meaning and interpretation which is in furtherance of underlying purpose. Learned counsel, Shri Maulin Raval referred to and relied upon the judgment of the Hon ble Apex Court in case of State of Jharkhand & Anr. Vs. Govind Singh, reported in AIR 2005 SC 294 and submitted that statute may be interpreted considering the intention of the Legislature. He emphasized that the intention of the Legislature is to be gathered from the language used. It was submitted that if the intention of the Legislature is merely conveyed, there is no scope for the court to innovate by amending or altering the statutory provisions. Learned counsel, Shri Raval has also referred to and relied upon the provisions of the Act and pointedly referred to Section 4(2) and Sections 7(b) and 7(c) of the Act. He pointedly referred to Section 7(1) which provides for the power to call upon the persons to give the assistance and submitted that clause (c) of Section 7 provides, all officers and members of staff of any factory, firm or establishment .
He therefore submitted that when the language in the statue is empowering the authority, it must be given the widest possible amplitude and any staff of the firm, factory or establishment could be called. Learned counsel, Shri Rawal also referred to the form or forms which are required to be filled in in the census work and submitted that broad data was sought to be collected which has an enormous details, therefore the said work could be taken from the employees of such public corporation. He submitted that as stated in detail in this form, various details are required to be filled in, which are given various data to the Government for any scheme or work or function of the Government. He therefore submitted that it was bounden duty to cooperate in such work. He referred to the Act and also various definition of Enumerator, Census Commissioner as well as Supervisor to support his submission. He referred to Section 2 of the Act and submitted that it empowers the Union Government to delegate or empowers the State Government for the purpose of making an appointment of the officer for the purpose of census. He also referred to the Citizenship Act and submitted that along with the statement for census, data which was collected was under the Citizenship Act and the Rules. He submitted that as provided in Section 2(d) of the Citizenship Act, Director of Citizen Registration means the Di rector of Census in a State or Union territory appointed by the Central Government under the Census Act, 1948 (37 of 1948), who shall also functions as the Director of Citizen Registration in the State, or as the case may be, in the Union territory.
He also referred to Section 2(e) of the Citizenship Act, which defines, District Register of Indian Citizen means the register containing details of Indian citizens usually residing in the district. Similarly, he referred to the Local Registrar of Citizen Registration as defined in Section 2(h) of the Citizenship Act and submitted that it refers to the Local Officer or Revenue Officer appointed by the State Government, who has to prepare the register within the area and would function as Local Registrar. Similarly, he referred to Section 2(n) of the Citizenship Act, which provides, State Register of Indian Citizens means the register containing details of Indian Citizens usually residing in the State. He also referred to Section 5 of the Citizenship Act, which defines, Officials of the Central Government, State Governments and local bodies to assist the Registrar General Every official of the Central Government, State Government, local bodies or their undertakings shall assist the Registrar General of Citizen Registration or any person authorized by him in this behalf, in preparation of the database relating to each family and every person, and in implementing the provisions of these rules. Learned counsel, Shri Rawal therefore submitted that along with census work, when this data is collected also for specific register to the officials as provided in this section including the officers of the local bodies, their work can be entrusted to any officer of public corporation. He therefore submitted that the submissions about the authority or the jurisdiction are misconceived. Learned counsel, Shri Raval also referred to and relied upon the judgment of the Hon ble Constitutional Bench of the Hon ble Apex Court in case of Sukhdev Singh & Ors. Vs. Bhagatram Sardar Singh Raghuvanshi & Anr., reported in AIR 1975 SC 1331 to support his submission about the definition of the State and its instrumentality within the meaning of Article 12 of the Constitution of India.
He strenuously submitted that the petitioner-corporation would be the State within the meaning of Article 12 of the Constitution of India as it is established by the Government of India and is subject to the control and, therefore, it would be an instrumentality or at-least a public sector corporation and, therefore, the impugned orders are just and valid.
Learned counsel, Shri Rawal, however, submitted that in fact the petition has become infructuous as it is now merely an academic due to lapse of time and, therefore, as the grievance does not survive when the census work has already been over, the issue may not be decided as it is only an academic issue. In support of his submission, he has referred to and relied upon the judgment of the Hon ble Apex Court in case of Bihar State Financial Corporation & Ors. Vs. Chemicot India (P) Ltd. & Ors., reported in (2006) 7 SCC 293.
In rejoinder, learned senior counsel, Shri B.B. Naik appearing with learned advocate, Shri A.C. Clerk referred to the provisions of Section 4 of the Census Act and pointedly referred to Section 4(2) and 4(4) of the Act. He submitted that Section 4(4) empowers the appointment of the employees of such corporation like the petitioner. Again, learned senior counsel, Shri Naik referred to Section 7 of the Act and submitted that it does not empower the authority either Central or State to make any appointment of the employees of the petitioner-corporation as a Census Officer. He pointedly referred to Section 7 of the Act and submitted that it only refers to the assistance to be provided in some cases when there is large colony of an industrial undertaking like GSFC or such other body having its own township. He submitted that in such cases, the Census Officer may find it difficult and, therefore, he may approach the officer incharge of such organization like GSFC in order to have census work of the entire township. He therefore submitted that to assist the Census Officer is a different than making the appointment of the employee of any other organization for the census work itself. He referred to the notifications and submitted that the Deputy Municipal Commissioner has no authority and the notification does not confer the power with the Deputy Municipal Commissioner to appoint any Census Officer but he himself is appointed for the assistance. He therefore submitted that he cannot make further appointment as it would be excessive delegation of power which is bad. Learned senior counsel, Shri Naik submitted that there is no authorization by any statute in favour of Dy. Municipal Commissioner to make any such appointment. He pointedly referred to Section 7 of the Act. Learned senior counsel, Shri Naik submitted that Section 7 of the Act only empowers the Census Officer to take assistance of the employees of the establishment as stated hereinabove like in the census work in the township. Learned senior counsel, Shri Naik also relied upon the judgment of the Hon ble Apex Court in case of Election Commission of India Vs. State Bank of India Staff Association Local Head Office Unit, Patna & Ors., reported in (1995) (Supp) 2 SCC 13.
He also referred to and relied upon the judgment of the Hon ble Apex Court in case of Union of India VsSankalchand Himatlal Sheth & Ors., reported in AIR 1977 SC 2328, more particularly Para Nos.11, 15 and 84. Learned senior counsel, Shri Naik also referred to the judgment of the Hon ble Apex Court in case of Union of India Vs. Bharat Battery Manufacturing Co. (P) Ltd., reported in (2007) 7 SCC 686.
Learned senior counsel, Shri Naik also referred to the judgment of the Hon bla Apex Court in case of Agricultural Market Committee Vs. Shalimar Chemical Works Ltd., reported in (1997) 5 SCC 516 and emphasized the observations made in para no.24, 26 and 28 and submitted that Rules cannot go beyond the statute. He emphasized that the power of enabling Act or Law cannot be widen by the Rules made under the same statute. Learned senor counsel, Shri Naik submitted that when the statute like Census Act does not provide for any such power or jurisdiction to make an appointment of the employees of the petitioner-corporation, which is not included within the meaning of local authority, it cannot be covered by the notification.
Learned senior counsel, Shri Naik also referred to and relied upon the judgment of the Hon ble Punjab and Haryana High Court on the same issue with regard to the appointment of the employees of the petitioner-corporation for such work and submitted that Punjab and Haryana High Court has clearly observed and held that no such appointment could be made under the Act. Similar, he has referred to and relied upon the judgment of the Hon ble Apex Court in case of Election Commission of India (supra), where the Hon ble Apex Court has clearly observed that the Election Commissioner has no power or authority to call for the election duty.
Learned counsel, Shri Lalakiya for the respondent no.1 referred to the provisions of Sections 4 and 7 of the Act to support the submission of learned counsel, Shri Rawal that it has the power for such appointment or requisition.
In view of these rival submissions, it is required to be considered whether the impugned order can be sustained or not and whether the employees of the petitioner-corporation can be appointed for the census work or not.
For the purpose of considering the issue involved in the matter, the provisions of the Census Act is required to be considered, particularly, Sections 4 read with Section 7 of the Act is required to be considered.
First contention which has been raised by learned senior counsel, Shri Naik with regard to the jurisdiction or authority requires consideration in light of the provisions of the Act. Section 4 of the Act provides for an appointment of the census staff and Section 4(2) provides, The State Government may appoint persons as census-officers [with such designations as that Government may deem necessary] to take, or aid in, or supervise the taking of, the census with any specified local area and such persons, when so appointed, shall be bound to serve accordingly.
Again Section 4(1) of the Act provides, The Central Government may appoint a Census Commissioner to supervise the taking of the census throughout the area in which the census is intended to be taken, and [Directors of Census Operations] to supervise the taking of the census within the several States. Section 3 of the Act provides, The Central Government may, by notification in the Official Gazette, declare its intention of taking a census in the whole or any part of the territories to which this Act extends, whenever it may consider it necessary or desirable so to do and thereupon the census shall be taken.
Again Section 4(4) of the Act provides, The State government may delegate to such authority as it thinks fit the power of appointing census-officer conferred by sub-section (2). Therefore it transpires that the census work is to be undertaken by the Central Government under the Act. The Central Government may appoint the Director of census operations and the persons so appointed or designated or the State Government may appoint the person as Census Officer as provided in sub-section (2) of Section 4 of the Act. The provision of sub-section (4) of Section 4 of the Act provides for delegation of the power by the State Government to such authority as it thinks for the purpose of appointing the Census Officer as provided in sub-section (2) of Section 4 of the Act. In other words, the State Government may itself appoint or it may delegate the authority for appointing Census Officer to some authority. The provision of Section 7 of the Act referred to the power to call upon certain persons to give assistance. As it transpires from plain reading of this section, the State Government or the authority as the case may be are given the powers to call upon the persons to give assistance for such census work. The provision of clause (b) and clause (c) of Section 7, which has been referred to by learned counsel, Shri Raval for the respondent to support the contention that clause (b) of Section 7 of the Act referred to the powers which may be exercised to call the members of the District Panchayat or Municipality or other local authority and as submitted by learned counsel, Shri Rawal for the respondent nos.2 and 3 that any member or staff of any factory, firm or establishment (Emphasis Supplied) could be called as provided in sub-section (c) of Section 7 of the Act requires a close scrutiny. The sphere of operation of two Sections 4 and 7 of the Act are totally different inasmuch as enabling provision for the appointment of the Census Officer for the census work is Section 4 of the Act. Again as stated above, Section 4 of the Act clearly provides that the Central Government may appoint the Director of census qua the respective States or may authorize the State Government, meaning thereby, the powers under the statute are delegated to the State Government and the State Government may appoint its own officer. However, further delegation as provided in clause (4) of Section 4 allowing the State Government to delegate the powers of appointment/requisition would require an examination and scrutiny of such delegation as excessive delegation of power. It is well accepted that the excessive delegation is bad in law and a person, who is having delegated power, cannot further delegate the powers or the authorities.
Further reading the provision of the statute, particularly, Section 4, it is enabling provision. For the purpose of appointing/requisitioning for the census work in respect of the State or the area, at the most it is the State Government which can make an appointment of a person as Census Officer in respect of the State or the area provided and does not provide any source of authority or the power for an appointment or requisition of any staff of any public corporation for such work either as Census Officer or Enumerators or Supervisor. Section 7 of the Act refers to such powers to call upon the persons to give assistance where as provided in clause (C), all officers and members of the staff of any factory, firm or establishment could be called upon to give assistance. Again reading clause (c) along with entire provision of Section 7 of the Act would make it clear that underlying purpose or idea is that any person or staff of the factory or firm or establishment could be called to give such assistance for the purpose of census work in the premises of respective factory or establishment or within the specified area of such local authorities as the case may be. In other words, clause
(c) of Section 7 of the Act provides that the assistance of the respective staff or firm or establishment could be taken for such census work in respect of that area or of that establishment or the factory. As stated in the example, in the department having a big township like GSFC or Reliance or ONGC, entire establishment is having a separate township which include the residential premises and also the work place. It is in this background, in order to assist the Census Officer, the respective staff or the officer like the Factory Manager or the Manager of the organization like GSFC and ONGC may be called to assist the Census Officer appointed for such work. In order to see that the Census Officer is properly assisted for the census work and within the said township or the establishment, the local person is required to assist and arrange for the census work by providing some kind of infrastructure or assistance to see that the census work within the establishment or within the township having the residential premises and consisting of many people residing in that township could be surveyed and the census is prepared. Therefore conjoint reading of Sections 4 and 7 of the Act would make it very clear that Section 4 of the Act refers to the power of an appointment of Census Officer, Enumerators etc. for the purpose of census work either by or through Director of census appointed by the Central Government or by the State Government which in turn can appoint its own staff for the purpose of such census work. The officer of the State Government or any person on deputation can be designated as the Director of census to look after this work. On the other hand, Section 7 refers to the aspect of census as discussed above. However, point of distinction, which is required to be noted is that Section 7 does not empower or confer the power, jurisdiction or authority to make any such requisition. All that, it provides for or refer to is the power to seek the assistance and to call the persons for the assistance. Therefore, it does not refer to any power by the State Government or Central Government to make an appointment/requisition of the Census Officer from any corporation or the establishment, which has been emphasized by learned counsel, Shri Rawal. Again reference made to the notification produced on record also requires to be considered. The first such notification is required to be noted that is the notification issued by the General Administrative Department, Sachivalaya, Gandhingar dated 11th May, 2009, which is purported to have been issued on the basis of the notification of Ministry of Home Affairs dated February, 20, 2009, which reads as under :-
S.O. 562(E). - In exercise of the powers conferred by Section 3 of the Census Act, 1948 (37 of 1948), the Central Government hereby declares that a census of the population of India shall be taken during the year 2011. The reference date for the census shall, except for the State of Jammy and Kashmir and snow bound non-synchronous areas of Himachal Pradesh and Uttarakhand, be 00.00 hours of the first day of March, 2011:
Provided that for the State of Jammu and Kashmir and snow bound non-synchronous areas of Himachal Pradesh and Uttarakhan, the reference date shall be 00.00 hours of the first day of October, 2010.
Therefore it refers to the exercise of power under Section 3 of the Act by the Central Government to declare the census of population of India and respective States have been mentioned. It is on the basis of this notification, two other notifications dated 25th February, 2010 issued in purported exercise of power in sub-section (3) of Section 17(A) of the Act read with Rules 6A of the Census Rules declaring the Houselisting Operations of Census of India 2011 in different States and Union territory. The notification dated 25th February, 2010 referred to the details. The notification by the Government of India, Ministry of Home Affairs, Office of the Registrar General has specifically provided that it is issued in purported exercise of powers under the Act with various details stated in the notification with further details about the manner in which and how it should be carried out. All these notifications do not refer to any provision of the Citizenship Act and though form provided may have a bearing for the purpose of preparation of such district citizen register referred to by learned counsel, Shri Rawal, the fact remains that the notifications issued in the present proceeding do not refer to exercise of power under the Citizenship Act. The notification dated 18th February, 2010 clearly refers to the exercise of power under sub-section (2) of Section 4 of the Census Act and it provides for an appointment of a person specified in column 3 as Census Officer such as :-
Level Authority Designation Areas Municipal Corporation of Ahmedabad city Municipal Commissioner, Ahmedabad Principal Census Officer Within the limits of Municipal Corporation of Ahmedabad city and the Urban Out Growth Areas Similarly, it also provides for an appointment of the Dy. Municipal Commissioner as Census Officer. It is required to be mentioned that another Notification of same date, 8th February, 2010 issued in purported exercise of sub-section (3) of Section 4 of the Act referred to authorization of the authorities in column 3 of the schedule to sign the declaration for the appointment of the Census Officer. The Director of census operation, Gujarat State is the authority for the whole of the State of Gujarat. It does not refer to any such power with Census Officer, who is in turn appointed by the State Operation or the State Government as the case may be. Therefore, the powers are confined only for the appointment of the Government officer as a Census Officer or the Supervisor and the employees of other Corporation or body cannot be appointed as Census Officer or the Supervisor in purported exercise of power under the Census Act. At this stage, the communication dated 17.03.2010 produced with the papers from the Ministry of Home Affairs, Director of Census Operation, Gujarat addressed to the Municipal Commissioner also requires to be noted. As stated by the Director of Census Operation in Gujarat that if the teachers are not available or other employees are not available, the establishment of the Government or the Central Government like LIC, GIC, Banks could be appointed, which seems to be the source or basis on which such powers of appointment/requisition are exercised though statute does not confer any such power. At the cost of repetition, Notification dated 18th February, 2010 issued in exercise of power under sub-section (3) of Section 4 of the Act authorized the Director of Census Operation, Gujarat State to make such an appointment within the area i.e. the State of Gujarat and the Government of Gujarat, therefore, has made an appointment of the Census Officer depending upon the area where it is within the municipal corporation city limit or other area and Municipal Commissioner or Collectors in the district are appointed as authority or Census Officer or the District Census Officer. Therefore when the statute does not provide for any such power or jurisdiction or authority for such appointment or requisition of any employee of the corporation or the authority as a Census Officer, Enumerator or Supervisor, the Director of Census, State of Gujarat cannot make any such appointment/ requisition without any source of power or statutory authority. In other words, one has to look at from the source or power or authority for exercise of which such requisition could have been made. As discussed above, from plain reading of the provisions and also the judgment of the Hon ble Apex Court in case of Election Commission of India (supra), it clearly suggests that when there is no specific source or enabling provision, the requisition could not be made. On the same analogy, though it was under the Representation of People Act, the present case regarding the requisition for the census work would have the same logic and interpretation. Like wise in the present case, where the Representation of People Act does not provide specific power in the facts of the case also, the Census Act does not confer any such power or jurisdiction for requisition of the employees of such corporation. The purpose or logic behind also has to be appreciated that the Census is an important national exercise for the data base of the citizens and it is a sovereign function of the Government which it has to discharge. Therefore only purpose is that the Government employees who could be controlled or are subjected to same kind of discipline by the statutory powers can be given such work as they can also be made accountable. Thus the power or function as well as corresponding accountability has to be together. The Legislature has therefore with above idea has made provision for requisition or for doing such exercise of census work only by the Government, which cannot be stretched or expanded in purported exercise of power or such notification to expand the source of authority or power. If that is permissible, it would amount to allowing such important sovereign function to be done or delegated, which may not be in a public interest or national interest. It may be worthwhile to note here that in case of Aadhar Card, the outsourcing and giving it to the NGO or private agencies has raised many issues. Moreover, Aadhar Card, which is stated to be a basis for the nationality or citizenship could not be left to the private agency with no accountability or less accountability. The nationality or citizenship, which could have been a basis for claiming any right or deciding an important issue providing a data base, could be a matter of national record with Government prepared by itself through its own agencies with some accountability. The Legislature has wisely with all consciousness has considered that it is the primary obligation of the Central Government and the work of census for various purpose in a democratic set up is very necessary and, therefore, realizing the importance thereof has thought it desirable only to leave it to the state authority for making an appointment/ requisition of the Census Officer, who are the Government employees or the staff. Further it has been specifically provided as to how the Census Officer and who could be Census Officer in respect of how much or which area so as to make it obligatory for such Census Officer to carry out the work of census with complete data and awareness. Therefore, what has not been envisaged or provided in the statute by the Legislature cannot be done in so called purported exercise of power, which is not provided. In other words, the Act which cannot be done directly in exercise of statutory authority or power, cannot be permitted to be done dehorse such specific power or authority vested in any person or the authority. Therefore when it is directed and provided with declaration of the Central Government, it is obligation for the State/local Government to make such provision which in turn has been empowered to make an appointment/ requisition from amongst its staff to carry out such work. Therefore, the Director of the Census or the State Government or any officer of the State Government without any specific provision in the statute or any authority cannot make any such appointment. Again referring to Section 7 of the Act, if it is sought to be contended that nobody could be called for assistance then it has to be considered with reference to the text of the statute or the provision of the statute. If the text of such provision is read in context, it would make it very clear that what is provided is that Census Officer, who is primarily appointed and obliged to carry out such census work, is assisted by such persons or the officer of the respective factory or establishment. Therefore as stated hereinabove, when the census work is to be carried out in any area like notified area or the township for calling upon either of the Government or corporation like ONGC, GSFC etc., the Census Officer is required to be assisted by the local officer of that establishment, which is referred to in Section 7 of the Act. However by reference to Section 7 emphasizing the word establishment , it cannot be interpreted that any officer or the employees of the Corporation can be so appointed for the purpose of census work though it may not be primary liability or obligation under the statute. Much emphasis by learned counsel, Shri Rawal on the word establishment referring to Black Dictionary is totally out of context so far as the controversy or the issue involved in the present petition. Similarly, the contention raised referring to the definition of the State or instrumentality falling within the meaning of Article 12 of the Constitution of India relying upon various authorities is also misconceived inasmuch as the issue is not whether a particular organization or the establishment like the petitioner-corporation whose employees are sought to be involved is State or not. The issue or the focus in the present petition is with regard to the exercise of power or the jurisdiction under the Census Act to take such work from the employees of the autonomous body like the petitioner-corporation though it may have been established under the special statute like LIC Corporation Act, 1948 of Government of India and there may have control with regard to the functioning of such corporation. It is required to be mentioned at this stage that the Hon ble Apex Court has clearly made observation about the distinction between who could be said to be a civil servant entitled to the protection under Article 311 of the Constitution of India.
It has already been made clear that the employees of such corporation established under the special statute cannot claim protection under Article 311 of the Constitution of India as they are the employees of the respective autonomous body or the organization. In fact the disciplinary and other regulations are separate Regulations under the respect special statute like LIC Corporation Act. Therefore the submission made by learned counsel, Shri Rawal that it is an instrumentality of the State or the State within the meaning of Article 12 of the Constitution of India and, therefore, any officer or any employees of such Corporation could be roped in for such work or entrusted with such work is going beyond the specific statutory provision of the Act and the Rules. It is well accepted that while interpreting the statute, first principle is the principle of reading the language of the statute as it is and if it is clear and unambiguous, it does not call for any extraneous aid. Moreover, the principle of harmonious construction which sub-serve underlying purpose or the object of the Act or the statute has to be followed. Further any method of interpretation, which has been accepted in case of any such submission or the claim is the principle of purposeful construction which requires that the text of the Act or the statute has to be interpreted in context of the underlying object or the purpose. It is well accepted that while interpreting the statutory provisions, not only the intention of the Legislature but also underlying object has to be considered but it has also to be considered with reference to the words and entire provision with sub serve the purpose of the statute. A useful reference can be made to the Halsbury s Laws of India, which it has been interpreted as under :-
[275.023] Expression to be understood in their context :-
The meanings of the words and expressions used in an enactment must take their colour from the context in which it appears. Expression may be used by the Legislature fully comprehending their meanings as expounded by judicial pronouncements while interpreting earlier legislations. Court must give due regard to the scheme of the legislation in order to determine the true meaning of any one or more of its provisions.
It is a settled rule of construction that to ascertain the legislative intention, the constituent parts of the concerned statute are to be taken together and each word, phrase or sentence is to be considered in light of the general purpose of the enactment. (Emphasis Supplied).
Law Laxican (C.K. Thakkar, J.) has referred to the meaning of establishment and has also made reference to the definition of establishment under the various statutes. Reliance placed by learned counsel, Shri Rawal referring to the word establishment means a corporation established by or under the Central, Provincial or the State Act or the authority or body owned by the Government or the local authority or the Government company etc. has to be read in context with the issue involved in the present matter. It is required to be mentioned that the word used is or , which is disjunctive referring to the different corporations owned and control by the Government or the authority or a local body.
Another facet of submission which has been made by learned counsel, Shri Rawal to support his submission with regard to the authority or the jurisdiction referring to the provisions of the Citizenship Act and the Rules requires consideration. Though the submissions have been made referring to various register to be maintained like district citizenship register maintained under the Citizenship Act, for which, survey or data is required to be made. The moot question is that neither the Census Act nor the Notification, which has been issued for the purpose of such census referred to exercise of powers under the Citizenship Act. Therefore merely because at the time of actual census work, if some forms with further details or the data are to be collected for the citizenship register by itself will not be sufficient to attract the provisions of the Citizenship Act or to consider that any such appointment as Census Officer could also be read in context with the powers under the Citizenship Act. Therefore, the submission made by learned counsel, Shri Rawal cannot be accepted. A useful reference can be made to the judgment of the Hon ble Apex Court in case of Election Commission of India (supra) with similar circumstances with regard to the exercise of the power for the election duty, wherein the appointment of the Election Commissioner was held to be without any authority or jurisdiction. Therefore, the order of the District Election Officer requisitioning the services of the employees of the State Bank of India for election duty was quashed and set aside. It was observed that, If the power, as contended by the appellant, is granted to the Election Commission, it will become an inperium in imperio. Therefore, it was expressly negatived by this Court in Digvijay Mote v. Union of India (1993) 4 SCC 175 at 178 Much emphasis was given to Article 324 of the Constitution of India read with provisions of the Representative in People Act, particularly, Section 159 of the Act. It is further observed that, Merely because the provisions of the two Acts require that they must be officers of Government or local authority, unlike in the case of officers falling under Section 27 of the 1951 Act, it does not, in our opinion, follow that the services of the officers of the State Bank of India could be requisitioned. Section 26 of the 1951 Act is not a source of power at all. It does not, in any manner, enable the Election Commission to draft in the services of officers other than officers of Government and local authority. To draw inspiration from these sections to support an argument that the services of any person could be drafted for the purpose of election is untenable (Emphasize Supplied). May be, to conduct the elections many polling stations are set up. Consequently, the services of many persons may be required. May be, the Election Commission may draw the minimum staff from the banks to ensure that the banking business is not disrupted but the question here is of power and not discretion. If there is power it may be exercised with circumspection and minimum staff may be requisitioned but if there is no power the question of the mode of its excercise will not arise at all (Emphasize Supplied). It is a question of existence of power and not the manner of its excercise. (Emphasize Supplied) It is required to be mentioned that after this judgment of the Hon ble Apex Court, necessary statutory amendments have been made in the Representative in People Act, particularly, Section 159 of the said Act and so as to explain scope and discretion of the Election Commissioner to requisite the service of any such staff of local authority and any other institution or undertaking etc. as amended subsequently, which is not the case herein. Further even after the amendment, when the staff of the LIC and Cooperative banks were requisitioned for such election duty, such orders have been set aside by the Hon ble Division Bench of the Bombay High Court in its judgment in Writ Petition No.8039/2009, Writ Petition No.8052/2009 and Writ Petition No.8111/2009 vide judgment and order dated September, 25, 2009. The judgment has considered the exercise of such powers even after the amendment in the Representative in People Act by amendment in Section 159 of the Act, 1951, which has been amended by the Representation of People Act (Amendment) Act, 1998 with discussion on various aspects including the regulatory control of the Government Constitutional provision and also the provision and the power of the Election Commissioner and the Chief Electoral Officer and also Article 324(6) which term requisition of the staff for election work at the request of the Election Commissioner by President or the Governor of the State. In this judgment, reference is made to the aforesaid judgment of the Hon ble Bombay High Court delivered in case of Election Commission of India (supra) much emphasizing on Article 310 and/or 311 of the Constitution of India which talk of the principles of civil services that only such staff could be requisitioned, which is under the control of President or the Governor and no any other staff over which they do not exercise control.
Therefore in light of the discussions made hereinabove as well as settled position of law with the observation of the Hon ble Apex Court in case of Election Commission of India (supra) addressing similar issue may be for the election duty which is also quite important in a democratic set up, the Court has set aside any such order requisitioning the staff of SBI and/or LIC. Therefore, the present petition deserves to be allowed and impugned order cannot sustained and deserves to be quashed and set aside.
In the circumstances, the present petition stands allowed in terms of Para No.24b. The impugned communication dated 26.04.2010 and the notices dated 26.04.2010 are hereby quashed and set aside. Rule is made absolute.
Special Civil Application No.5767 of 2010 Learned counsel, Shri Rao adopted the submissions made by learned senior counsel, Shri Naik at length. He also referred to the same judgment of the Hon ble Apex Court in case of Election Commission of India (supra) and submitted that analogy may be applied in this case also that the election work, which is equally important in the democracy is not permitted to be taken by the Election Commissioner and that too, such census work cannot be taken from the employees of the petitioner like Employees Provident Fund Organization. He therefore submitted that it is the statutory duty or the constitutional duty or the obligation of the State or the Central Government and it does not justify any such jurisdiction or power to summon anybody for the work or the duty, which is required to be carried out by the Government. He has also relied upon the judgment in case of The Thane Janta Sahakari Bank Ltd. Vs. Election Commission of India & Ors., reported in 2010 (1) MLG 152.
In view of the discussions made hereinabove and the submissions made by learned counsel, Shri Rao much relying upon the judgment of the Hon ble Division Bench of High Court of Bombay in writ petition being Writ Petition No.8039/2009, Writ Petition No.8052/2009 and Writ Petition No.8111/2009 vide judgment and order dated September, 25, 2009, the present petition deserves to be allowed and the impugned order requisitioning the services of the employees of the petitioner cannot be sustained and deserves to be quashed and set aside.
In the circumstances, the present petition stands allowed in terms of Para No.37(A). The impugned orders passed by the respondent nos.3 and 4 dated 15.04.2010 and 16.04.2010 and the notices dated 27.04.2010 and 28.04.2010 issued by the respondent nos.3 and 4 are hereby quashed and set aside. Rule is made absolute.
Sd/-
(RAJESH H.SHUKLA, J.) Gautam Page 33 of 33