Delhi High Court
Rajveer Sharma vs National Thermal Power Corporation ... on 28 February, 2017
Author: Valmiki J.Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) No. 6595/2016 and connected matters
% 28th February, 2017
+ W.P. (C) No. 6595/2016
RAJVEER SHARMA ..... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD. &
ANR. ..... Respondents
Through Mr. Puneet Taneja, Advocate for
Respondent no.1.
Mr. Bharat Sangal, Advocate for
Respondent no.2.
+ W.P. (C) No. 10113/2016
RAMPAL ..... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD. &
ORS. ..... Respondents
Through Ms. Meghna Katari, Advocate
for Respondent no.1.
Mr. I. S Alag, Mr. Rajesh
Kumar and Mr. Ahmad
Shahrooz, Advocates for
Respondent no.2.
Ms. Zoheb Hossain, Sr.
Standing Counsel for
Respondent no.3.
W.P.(C) No. 6595/2016 and connected matters 1 of 48
+ W.P. (C) No. 1093/2017
HARI DUTT SHARMA ..... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD AND
ORS. ..... Respondents
Through Mr. Ashim Vachher, Advocate
for Respondent no.1.
Mr. Bharat Sangal, Advocate for
Respondent no.2.
Ms. Zoheb Hossain, Sr.
Standing Counsel for
Respondent no.3.
+ W.P. (C) No. 1414/2017
VINOD PURI ..... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD. &
ANR. ..... Respondents
Through Mr. Adarsh Tripathi, Advocate
for Respondent no.1.
Mr. Bharat Sangal, Advocate for
Respondent no.2.
+ W.P. (C) No. 6931/2016
MAHENDRA PRASAD ..... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD. &
ANR. ..... Respondents
W.P.(C) No. 6595/2016 and connected matters 2 of 48
Through Mr. Puneet Taneja, Advocate for
Respondent no.1.
Mr. Bharat Sangal, Advocate for
Respondent no.2.
+ W.P. (C) No. 8094/2016
K K VARSHNEY ..... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD AND
ORS. ..... Respondents
Through Mr. Adarsh Tripathi, Advocate
for Respondent no.1
Mr. Bharat Sangal, Advocate for
Respondent no.2
+ W.P. (C) No. 8101/2016
DHARAM PAL GUPTA ..... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD AND
ORS. ..... Respondents
Through Mr. Adarsh Tripathi, Advocate
for Respondent no.1.
Mr. Bharat Sangal, Advocate for
Respondent no.2.
+ W.P. (C) No. 8105/2016
RAKESH KUMAR GARG ..... Petitioner
Through Mr. S Janani, Advocate.
versus
W.P.(C) No. 6595/2016 and connected matters 3 of 48
NATIONAL THERMAL POWER CORPORATION LTD AND
ORS. ..... Respondents
Through Mr. J S Lamba, Advocate for
Respondent no.1.
Mr. Bharat Sangal, Advocate for
Respondent no.2.
+ W.P. (C) No. 8107/2016
IQBAL SINGH PARSWAL ..... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD AND
ORS. ..... Respondents
Through Mr. J S Lamba, Advocate for
Respondent no.1.
Mr. Bharat Sangal, Advocate for
Respondent no.2.
+ W.P. (C) No. 8112/2016
KAMAL SHER SINGH AJJAN ..... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD AND
ORS. ..... Respondents
Through Mr. Adarsh Tripathi, Advocate
for Respondent no.1.
Mr. Bharat Sangal, Advocate for
Respondent no.2.
+ W.P. (C) No. 8116/2016
DEV PRAKASH SINGH CHAUHAN ..... Petitioner
Through Mr. S Janani, Advocate.
W.P.(C) No. 6595/2016 and connected matters 4 of 48
versus
NATIONAL THERMAL POWER CORPORATION LTD AND
ORS. ..... Respondents
Through Mr. Adarsh Tripathi, Advocate
for Respondent no.1.
Mr. Bharat Sangal, Advocate for
Respondent no.2.
+ W.P. (C) No. 8117/2016
SHIVA PUJAN LAL ..... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD AND
ORS. ..... Respondents
Through Mr. J S Lamba, Advocate for
Respondent no.1.
Mr. Bharat Sangal, Advocate for
Respondent no.2.
+ W.P. (C) No. 8119/2016
MAN MOHAN SINGH ARORA ..... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD AND
ORS. ..... Respondents
Through Mr. Adarsh Tripathi, Advocate
for Respondent no.1.
Mr. Bharat Sangal, Advocate for
Respondent no.2.
+ W.P. (C) No. 8146/2016
SATYENDRA NATH PANDEY ..... Petitioner
W.P.(C) No. 6595/2016 and connected matters 5 of 48
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD AND
ORS. ..... Respondents
Through Mr. J S Lamba, Advocate for
Respondent no.1.
Mr. Bharat Sangal, Advocate for
Respondent no.2.
+ W.P. (C) No. 9848/2016
MARKANDEY ..... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD AND
ORS. ..... Respondents
Through Ms. Meghna Katari, Advocate
for Respondent no.1.
Mr. I S Alag, Mr. Rajesh Kumar
and Mr. Ahmad Shahrooz,
Advocates for Respondent no.2.
Ms. Zoheb Hossain, Sr.
Standing Counsel for
Respondent no.3.
+ W.P. (C) No. 9963/2016
PREM KRISHNA ..... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD. &
ORS. ..... Respondents
W.P.(C) No. 6595/2016 and connected matters 6 of 48
Through Mr. Puneet Taneja, Advocate for
Respondent no.1.
Mr. I S Alag, Mr. Rajesh Kumar
and Mr. Ahmad Shahrooz,
Advocates for Respondent no.2.
Ms. Zoheb Hossain, Sr.
Standing Counsel for
Respondent no.3.
+ W.P. (C) No. 9974/2016
ASHOK KUMAR GUPTA ..... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD. &
ORS. ..... Respondents
Through Ms. Meghna Katari, Advocate
for Respondent no.1.
Mr. I S Alag, Mr. Rajesh Kumar
and Mr. Ahmad Shahrooz,
Advocates for Respondent no.2.
Ms. Zoheb Hossain, Sr.
Standing Counsel for
Respondent no.3.
+ W.P. (C) No. 10022/2016
MK SAMUEL KUTTY ..... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD AND
ORS. ..... Respondents
Through Ms. Meghna Katari, Advocate
for Respondent no.1.
W.P.(C) No. 6595/2016 and connected matters 7 of 48
Mr. I S Alag, Mr. Rajesh Kumar
and Mr. Ahmad Shahrooz,
Advocates for Respondent no.2.
Ms. Zoheb Hossain, Sr.
Standing Counsel for
Respondent no.3.
+ W.P. (C) No. 2010/2016
ADITYA N. SHUKLA ..... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD. &
ORS. ..... Respondents
Through Mr. Ashim Vachher, Advocate
for Respondent no.1.
Mr. Bharat Sangal, Advocate for
Respondent no.2.
+ W.P. (C) No. 2092/2016
SPS CHAUHAN .... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD. &
ORS. ..... Respondents
Through Mr. Ashim Vachher, Advocate
for Respondent no.1.
Mr. Bharat Sangal, Advocate for
Respondent no.2.
+ W.P. (C) No. 2289/2016
JALESHWAR NATH SINHA ..... Petitioner
Through Mr. S Janani, Advocate.
W.P.(C) No. 6595/2016 and connected matters 8 of 48
versus
NATIONAL THERMAL POWER CORPORATION LTD AND
ANR. ..... Respondents
Through Mr. Ashim Vachher, Advocate
for Respondent no.1.
Mr. Bharat Sangal, Advocate for
Respondent no.2.
+ W.P. (C) No. 2327/2016
NARENDRA KUMAR AGGARWAL ..... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD &
ANR. ..... Respondents
Through Mr. Ashim Vachher, Advocate
for Respondent no.1.
Mr. Bharat Sangal, Advocate for
Respondent no.2.
+ W.P. (C) No. 4839/2016
DEEPAK KUMAR GOEL ..... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD AND
ANR. ..... Respondents
Through Mr. Bharat Sangal, Advocate for
Respondent no.2.
+ W.P. (C) No. 6125/2016
HARISH CHANDRA GOEL ..... Petitioner
Through Mr. S Janani, Advocate.
W.P.(C) No. 6595/2016 and connected matters 9 of 48
versus
NATIONAL THERMAL POWER CORPORATION LTD. &
ANR. ..... Respondents
Through Mr. Mohit Kumar Shah,
Advocate for Respondent no.1.
Mr. Bharat Sangal, Advocate for
Respondent no.2.
+ W.P. (C) No. 6179/2016
BALDEV RAJ MADAN ..... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD AND
ANR. ..... Respondents
Through Mr. Adarsh Tripathi, Advocate
for Respondent no.1.
Mr. Mohit Kumar Shah,
Advocate for Respondent no. 2.
+ W.P. (C) No. 6930/2016
SHEO NARAYNA RAM ..... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD. &
ANR. ..... Respondents
Through Mr. Adarsh Tripathi, Advocate
for Respondent no.1
Mr. Bharat Sangal, Advocate for
Respondent no.2.
+ W.P. (C) No. 7076/2016
SHREE NARAIN SINGH ..... Petitioner
W.P.(C) No. 6595/2016 and connected matters 10 of 48
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD. &
ORS. ..... Respondents
Through Mr. J S Lamba, Advocate for
Respondent no.1.
Mr. Bharat Sangal, Advocate for
Respondent no.2.
+ W.P. (C) No. 9513/2016
SAROJ KUMAR DE ..... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD AND
ORS. ..... Respondents
Through Ms. Meghna Katari, Advocate
for Respondent no.1.
Mr. I S Alag, Mr. Rajesh Kumar
and Mr. Ahmad Shahrooz,
Advocates for Respondent no.2.
Ms. Zoheb Hossain, Sr.
Standing Counsel for
Respondent no.3.
+ W.P. (C) No. 9536/2016
KULDIP KUMAR DADA ..... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD AND
ORS. .....Respondents
W.P.(C) No. 6595/2016 and connected matters 11 of 48
Through Mr. Adarsh Tripathi, Advocate
for Respondent no.1.
Mr. Bharat Sangal, Advocate for
Respondent no.2.
+ W.P. (C) No. 9538/2016
SUJIT KUMAR DATTA ..... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD AND
ORS. ..... Respondents
Through Ms. Meghna Katari, Advocate
for Respondent no.1.
Mr. I S Alag, Mr. Rajesh Kumar
and Mr. Ahmad Shahrooz,
Advocates for Respondent no.2.
Ms. Zoheb Hossain, Sr.
Standing Counsel for
Respondent no.3.
+ W.P. (C) No. 9539/2016
RAM NARAYAN CHOUDHARY ..... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD AND
ORS. ..... Respondents
Through Ms. Meghna Katari, Advocate
for Respondent no.1.
Mr. I S Alag, Mr. Rajesh Kumar
and Mr. Ahmad Shahrooz,
Advocates for Respondent no.2.
W.P.(C) No. 6595/2016 and connected matters 12 of 48
Ms. Zoheb Hossain, Sr.
Standing Counsel for
Respondent no.3.
+ W.P. (C) No. 1848/2017
S G SHARMA ..... Petitioner
Through Mr. S Janani, Advocate.
versus
NATIONAL THERMAL POWER CORPORATION LTD AND
ANR. ..... Respondents
Through Mr. Adarsh Tripathi, Advocate
for Respondent no.1.
Mr. I S Alag, Mr. Rajesh Kumar
and Mr. Ahmad Shahrooz,
Advocates for Respondent no.2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
1. This entire bunch of writ petitions, as stated in the memo of parties, are being decided by this common judgment as issue arising in all these writ petitions is the same. For the sake of convenience reference is made to the pleadings in W.P. (C) No. 6595/2016 titled as Rajveer Sharma Vs. National Thermal Power Corporation Limited and Another.
W.P.(C) No. 6595/2016 and connected matters 13 of 48
2. Petitioner Sh. Rajveer Sharma by this writ petition seeks the relief of mandamus being issued to the respondents for the petitioner being paid pensionary benefits w.e.f. 1.7.2013 along with interest at the rate of 12% per annum. Pensionary benefits are claimed under the Self-Contributory Superannuation Benefits (Pension) Scheme of 1995. There are two respondents in the writ petition. The first respondent is the National Thermal Power Corporation (NTPC), and which was the employer of the petitioner. Respondent no.2 is the NTPC Pension Trust. This Pension Trust being the respondent no.2 has been created under the Trust Deed dated 12.3.1997, and which is responsible for paying of the pensionary benefits to the retired employees of the respondent no.1/NTPC.
3. Without going into the merits of the claim of the petitioner in the writ petition, there is an issue to be decided as a preliminary issue, as to whether the present writ petition will lie under Article 226 of the Constitution of India, inasmuch as, it is argued on behalf of the respondents that respondent no.2/Pension Trust is a private body, i.e it is not a State under Article 12 of the Constitution of India and neither the respondent no.1/NTPC nor the respondent no.2/Pension Trust W.P.(C) No. 6595/2016 and connected matters 14 of 48 perform any statutory functions or public functions in terms of the administration and running of the respondent no.2/Pension Trust.
4. Before turning to the facts of the case, let me turn to the law as regards maintainability of a writ petition under Article 226 of the Constitution of India. A writ petition undoubtedly lies against an authority or organization which is a State under Article 12 of the Constitution of India. The power under Article 226 of the Constitution of India is however wide and is not limited to issuing prerogative writs only against organizations and institutions which are State under Article 12 of the Constitution of India. Even as against a purely private body, writ petitions have been held to be maintainable, however, before such writ petitions against private bodies are entertained, it has to be found that the private body is carrying out statutory functions/duties under a Statute or is performing a public function. These aspects have been considered and such ratio laid down by the Supreme Court in its various judgments and the following judgments in this regard are relevant and thus are being referred.
5. In Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V.R. Rudani and Others (1989) 2 SCC 691, the Supreme Court held that W.P.(C) No. 6595/2016 and connected matters 15 of 48 law with respect to maintainability of a writ petition have developed considerably and it is not the legal position that a writ petition will not lie against a private body. Of course, the private body must perform what is known as a public function. The relevant paras of the judgment in the case of Andi Mukta (supra) which makes the observations with respect to maintainability of the writ petitions are paras 13 to 21 and which read as under:-
"13. The decision in Vaish Degree College was followed in Deepak Kumar Biswas case. There again a dismissed lecturer of a private college was seeking reinstatement in service. The Court refused to grant the relief although it was found that the dismissal was wrongful. This Court instead granted substantial monetary benefits to the lecturer. This appears to be the preponderant judicial opinion because of the common law principle that a service contract cannot be specifically enforced.
14. But here the facts are quite different and, therefore, we need not go thus far. There is no plea for specific performance of contractual service. The respondents are not seeking a declaration that they be continued in service. They are not asking for mandamus to put them back into the college. They are claiming only the terminal benefits and arrears of salary payable to them. The question is whether the trust can be compelled to pay by a writ of mandamus?
15. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to Mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants-trust was managing the affiliated college to which public money is paid as Government aid. Public money paid as Government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like Government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a W.P.(C) No. 6595/2016 and connected matters 16 of 48 private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus can not be refused to the aggrieved party.
16. The Law relating to mandamus has made the most spectacular advance. It may be recalled that the remedy by prerogative writs in England started with very limited scope and suffered from many procedural disadvantages. To overcome the difficulties, Lord Gardiner (the Lord Chancellor) in pursuance of Section 3(1)(e) of the Law Commission Act, 1965, requested the Law Commission "to review the existing remedies for the judicial control of administrative acts and ommissions with a view to evolving a simpler and more effective procedure." The Law Commission made their report in March 1976 (Law Commission No. 73). It was implemented by Rules of Court (Order 53) in 1977 and given statutory force in 1981 by Section 31 of the Supreme Court Act 1981. It combined all the former remedies into one proceeding called Judicial Review. Lord Denning explains the scope of this "judicial review":
"At one stroke the courts could grant whatever relief was appropriate. Not only certiorari and mandamus, but also declaration and injunction. Even damages. The procedure was much more simple and expeditious. Just a summons instead of a writ. No formal pleadings. The evidence was given by affidavit. As a rule no cross-examination, no discovery and so forth. But there were important safeguards. In particular, in order to qualify, the applicant had to get the leave of a judge. The Statute is phrased in flexible terms. It gives scope for development. It uses the words "having regard to". Those words are very indefinite. The result is that the courts are not bound hand and foot by the previous law. They are to 'have regard to' it. So the previous law as to who are-and who are not- public authorities, is not absolutely binding. Nor is the previous law as to the matters in respect of which relief may be granted. This means that the judges can develop the public law as they think best. That they have done and are doing."
17. There, however, the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty. The 'public authority' for them mean everybody which is created by statute and whose powers and duties are defined by statute. So Government Departments local authorities, police authorities and statutory undertakings and corporations, are all 'public authorities'. But there is no such limitation for our High Courts to issue the writ 'in the nature of mandamus'. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226 writs can be issued to a 'any person or authority". It can be issued "for the enforcement of any or the fundamental rights and for any other purpose".
18. Article 226 reads:-
W.P.(C) No. 6595/2016 and connected matters 17 of 48 "226. Power of High Courts to issue certain writs:- (1) Notwithstanding anything in Article 32, every High Court shall have power throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority including in appropriate cases, any Government, within those territories directions, order or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose.
* * *"
19. The scope of the this article has been explained by Subba Rao, J., in Dwarkanath v. Income Tax Officer: (SCR pp.540-41) "This article is couched in comprehensive phraseology and it ex-facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England ; but the use of the expression 'nature" for the said expression does not equate the writs that can be issued in India with those in England, but only draws analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to set the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself."
20. The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32.
Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "Any person or authority" used in Article 226 are therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied.
21. In Praga Tools Corporation v. C.A Imanual, this Court said that a mandamus can issue against a person or body to carry out the duties placed W.P.(C) No. 6595/2016 and connected matters 18 of 48 on them by the Statutes even though they are not public officials or statutory body. It was observed: (SSC p.589. Para 6: SCR p.778) "It is however not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body, A mandamus can issue, for instance, to an official or a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public responsibilities. (See Halsbury's Laws of England 3rd Ed. Vol. II p. 52 and onwards)."
(underlining added)
6. In Andi Mukta's case (supra), the writ petition was held to be maintainable against the private body inasmuch as the private body being the trust was running an educational institution and performing a public function and it was performing duties under a statute. This is stated by the Supreme Court in para 16 which has been reproduced above wherein the Supreme Court has further observed that the trust was being run with public monies because there was government aid and which had a role in control, maintenance and working of the educational institution. Imparting of education was held to be a public character function. Accordingly, a writ petition was held to be maintainable against the private trust which was running the educational institution inasmuch as the educational institution was found to be performing a public function and bound to perform statutory duties.
W.P.(C) No. 6595/2016 and connected matters 19 of 48
7. That the subject of education is a public function is no longer res integra not only because of the judgment of the Supreme Court in Andi Mukta's case (supra) but also because of the Constitution Bench judgment of the Supreme Court in the case of Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others (1993) 1 SCC 645.
8. In Binny Ltd. and Another Vs. V. Sadasivan and Others (2005) 6 SCC 657 similar observations as made in Andi Mukta's case (supra) were made by the Supreme Court. The relevant paras of the judgment in Binny Ltd.'s case (supra) are paras 9 to 11 and 29 to 32 and which paras read as under:-
9. The superior Court's supervisory jurisdiction of judicial review is invoked by an aggrieved party in myriad cases. High Courts in India are empowered under Article 226 of the Constitution to exercise judicial review to correct administrative decisions and under this jurisdiction High Court can issue to any person or authority, any direction or order or writs for enforcement of any of the rights conferred by Part III or for any other purpose. The jurisdiction conferred on the High Court under Article 226 is very wide. However, it is an accepted principle that this is a public law remedy and it is available against a body or person performing public law function. Before considering the scope and ambit of public law remedy in the light of certain English decisions, it is worthwhile to remember the words of Subha Rao J. expressed in relation to the powers conferred on the High Court under Article 226 of the Constitution in Dwarkanath v. Income Tax Officer:
(SCR pp.540G-41A) "This article is couched in comprehensive phraseology and it-ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs W.P.(C) No. 6595/2016 and connected matters 20 of 48 also is widened by the use of the expression „nature‟, for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Court to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution of India with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself."
10. The Writ of Mandamus lies to secure the performance of a public or a statutory duty. The prerogative remedy of mandamus has long provided the normal means of enforcing the performance of public duties by public authorities. Originally, the writ of mandamus was merely an administrative order from the sovereign to subordinates. In England, in early times, it was made generally available through the Court of King's Bench, when the Central Government had little administrative machinery of its own. Early decisions show that there was free use of the writ for the enforcement of public duties of all kinds, for instance against inferior tribunals which refused to exercise their jurisdiction or against municipal corporation which did not duly hold elections, meetings, and so forth. In modern times, the mandamus is used to enforce statutory duties of public authorities. The courts always retained the discretion to withhold the remedy where it would not be in the interest of justice to grant it. It is also to be noticed that the statutory duty imposed on the public authorities may not be of discretionary character. A distinction had always been drawn between the public duties enforceable by mandamus that are statutory and duties arising merely from contract. Contractual duties are enforceable as matters of private law by ordinary contractual remedies such as damages, injunction, specific performance and declaration. In the Administrative Law (9th Edition) by Sir William Wade and Christopher Forsyth, (Oxford University Press) at p. 621, the following opinion is expressed:
"A distinction which needs to be clarified is that between public duties enforceable by mandamus, which are usually statutory, and duties arising merely from contract. Contractual duties are enforceable as matters of private law by the ordinary contractual remedies, such as damages, injunction, specific performance and declaration. They are not enforceable by mandamus, which in the first place is confined to public duties and secondly is not granted where there are other adequate remedies. This difference is brought out by the relief granted in cases of ultra vires. If for example a minister or a licensing authority acts contrary to the principles of natural justice, certiorari and mandamus are standard remedies. But if a trade union disciplinary committee acts in the same way, these remedies are inapplicable: the rights of its members depend upon their contract of W.P.(C) No. 6595/2016 and connected matters 21 of 48 membership, and are to be protected by declaration and injunction, which accordingly are the remedies employed in such cases."
11. Judicial review is designed to prevent the cases of abuse of power and neglect of duty by public authorities. However, under our Constitution, Article 226 is couched in such a way that a writ of mandamus could be issued even against a private authority. However, such private authority must be discharging a public function and that the decision sought to be corrected or enforced must be in discharge of a public function. The role of the State expanded enormously and attempts have been made to create various agencies to perform the governmental functions. Several corporations and companies have also been formed by the government to run industries and to carry on trading activities. These have come to be known as Public Sector Undertakings. However, in the interpretation given to Article 12 of the Constitution, this Court took the view that many of these companies and corporations could come within the sweep of Article 12 of the Constitution. At the same time, there are private bodies also which may be discharging public functions. It is difficult to draw a line between the public functions and private functions when it is being discharged by a purely private authority. A body is performing a "public function" when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. In a book on Judicial Review of Administrative Action (5th Edn.) by de Smith, Woolf & Jowell in Chapter 3 para 0.24, it is stated thus:
"A body is performing a „public function‟ when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. This may happen in a wide variety of ways. For instance, a body is performing a public function when it provides „public goods‟ or other collective services, such as health care, education and personal social services, from funds raised by taxation. A body may perform public functions in the form of adjudicatory services (such as those of the criminal and civil courts and tribunal system). They also do so if they regulate commercial and professional activities to ensure compliance with proper standards. For all these purposes, a range of legal and administrative techniques may be deployed, including: rule-making, adjudication (and other forms of dispute resolution); inspection; and licensing. Public functions need not be the exclusive domain of the state. Charities, self-regulatory organizations and other nominally private institutions (such as universities, the Stock Exchange, Lloyd's of London, churches) may in reality also perform some types of public function. As Sir John Donaldson M.R. urged, it is important for the courts to „recognize the W.P.(C) No. 6595/2016 and connected matters 22 of 48 realities of executive power‟ and not allow „their vision to be clouded by the subtlety and sometimes complexity of the way in which it can be exerted‟. Non-governmental bodies such as these are just as capable of abusing their powers as is government."
XXXXX XXXXX
29. Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel the public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies. According to Halsbury's Laws of England 3rd Edn. Vol. 30, page- 682, "1317. A public authority is a body not necessarily a county council, municipal corporation or other local authority which has public statutory duties to perform and which perform the duties and carries out its transactions for the benefit of the public and not for private profit." There cannot be any general definition of public authority or public action. The facts of each case decide the point.
30. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. But nevertheless it may be noticed that the Government or Government authorities at all levels is increasingly employing contractual techniques to achieve its regulatory aims. It cannot be said that the exercise of those powers are free from the zone of judicial review and that there would be no limits to the exercise of such powers, but in normal circumstances, judicial review principles cannot be used to enforce the contractual obligations. When that contractual power is being used for public purpose, it is certainly amenable to judicial review. The power must be used for lawful purposes and not unreasonably.
31. The decision of the employer in these two cases to terminate the services of their employees cannot be said to have any element of public W.P.(C) No. 6595/2016 and connected matters 23 of 48 policy. Their cases were purely governed by the contract of employment entered into between the employees and the employer. It is not appropriate to construe those contracts as opposed to the principles of public policy and thus void and illegal under Section 23 of the Contract Act. In contractual matters even in respect of public bodies, the principles of judicial review have got limited application. This was expressly stated by this Court in State of U.P. v. Bridge & Roof Co. (India) Ltd. and also in Kerala SEB v. Kurien E. Kalathil. In the latter case, this Court reiterated that the interpretation and implementation of a clause in a contract cannot be the subject matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract. If a term of a contract is violated, ordinarily, the remedy is not a writ petition under Article 226.
32. Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body which is not a State within the meaning of Article 12 of the Constitution and such body is amenable to the jurisdiction under Article 226 of the Constitution and the High Court under Article 226 of the Constitution can exercise judicial review of the action challenged by a party. But there must be a public law element and it cannot be exercised to enforce purely private contracts entered into between the parties." (underlining added)
9. A reading of the aforesaid paras of the judgment in Binny Ltd.'s case (supra) also shows that the private body must perform a public law function or a public function before a writ can be held to be maintainable against such a private organization. The other judgments of the Supreme Court laying down similar ratio are judgments in the cases of Federal Bank Ltd. Vs. Sagar Thomas and Others (2003) 10 SCC 733 and General Manager, Kisan Sahkari Chini Mills Ltd., Sultanpur, U.P. Vs. Satrughan Nishad and Others (2003) 8 SCC 639.
10. Having reproduced the position of law as regards the maintainability of the writ petitions in terms of the ratios of the judgments of the Supreme Court reproduced above, let us now turn to W.P.(C) No. 6595/2016 and connected matters 24 of 48 the facts of the present case in order to determine whether the respondent nos. 1 and 2, jointly and/or severely, are performing the public functions as regards the payment of pension to the retired employees of the respondent no.1/NTPC by the respondent no.2/Pension Trust. In order to determine this aspect, three documents would be relevant and which documents therefore are being reproduced in toto as below.
(i) The first is the Trust Deed dated 12.3.1997 entered into between the respondent no.1/NTPC and the employees of the respondent no.1/NTPC, which is as under:-
"NATIONAL THERMAL POWER CORPORATION LTD. SELF CONTRIBUTORY SUPERANNUATION BENEIFT (PENSION) TRUST TRUST DEED This Trust Deed is made on this 12th day of March, 1997 BETWEEN National Thermal Power Corporation Ltd., a Company registered under the Companies Act, 1956 and having its Registered Office at NTPC Bhavan, SCOPE Complex 7, Institutional Area, Lodi Road, New Delhi-110003, (hereinafter referred to as "the Corporation" or Testator", which expression unless repugnant to the context or meaning thereof shall include its successors and assigns) through its Special Power of Attorney Shri Pran Nath, Director (Personnel), of the FIRST PART;
AND
1. Shri B.N. Ojha, Dir (Oprn.) Chairman of Board of Trustees
2. Shri K.K. Sinha, GM (P&A) (Representing the Employer) Trustee
3. Shri R.K. Rustagi, DGM (IR) (Representing the Employer) Secy. & Trustee
4. Shri R.K. Sharma, DGM (IF) (Representing the Employer) Trustee
5. Shri Gurmukh Singh (Representing the Employer) Trustee W.P.(C) No. 6595/2016 and connected matters 25 of 48
6. Shri V.K. Sharma (Representing the Employer) Trustee
7. Shri R.K. Singh (Representing the Employer) Trustee
8. Shri S.N. Badoni (Representing the Employer) Trustee
9. Shri P.K. Gupta (Representing the Employer) Trustee
10. Shri R.M. Singh (Representing the Employer) Trustee (hereinafter referred to as the "the Trustees" which expression unless repugnant to the context or meaning thereof shall include its successors and assigns) of the SECOND PART WHEREAS A. The Corporation in 141st Meeting of their Board of Directors held on 18.3.1994 has decided to introduce a „Self Contributory Superannuation Benefit (Pension) Scheme" (hereinafter referred to as "the Pension Scheme" copy annexed at Annexure -1) and administered the said Pension Scheme through an irrevocable Trust to be recognized under the Income Tax Act, 1961 for the sole purpose of providing pension benefits to the employees of the Corporation who are entitled to pension benefits in accordance with the provisions of the Pension Scheme appended to this Trust Deed (hereinafter referred to as "the Rules") B. The Corporation do hereby constituted an irrevocable Trust for the management and administration of the aforesaid Pension Scheme and has nominated the aforesaid persons as Trustees of the Trust. The Trustees have agreed to act as the "First Trustees" hereof on the terms and conditions contained in Rules of the Trust annexed hereto, which shall be integral part of the these presents.
NOW THIS DEED WITNESSETH AND IT IS HEREBY AGREED AND DECLARED AS FOLLOWS:-
1. The name of the Pension Trust shall be "National Thermal Power Corporation Ltd. Self Contributory Superannuation Benefit (Pension) Trust" or such other name or title as the Trustees may from time to time determine with the prior approval of the Commissioner of Income Tax having jurisdiction over the Trust (hereinafter referred to as "the Commissioner").
2. These presents shall constitute a Trust established in India be irrevocable and the Trustees shall hold the moneys of the Trust upon trust for the benefit of the Members or other Beneficiaries more particularly set forth in the Rules, and no money belonging to the Trust in the hands of Trustees shall be irrevocable by the Corporation under any pretext whatsoever, nor shall the Corporation have any lien or charge or encumbrance of any description on the same.
3. It shall be obligatory on the part of the Trustees to pay to the Members or other Beneficiaries the benefits according to the Trust Rules.
4. The Trust shall be administered, managed and controlled in accordance with provisions of these presents and Rules. The decision of the Board of W.P.(C) No. 6595/2016 and connected matters 26 of 48 Trustees shall be final and binding upon the Members and or Beneficiaries in all respects or matter arising out of these presents and the Rules.
5. It is mutually agreed between the parties that the Corporation subject to the limitation imposed by Rules 87 and 88 of the Income Tax Rules shall promptly pay to the trustees the aggregate Contributions amount of Corporation‟s share and Members share on the execution of these presents. The Corporation hereby further agree with the Trustees that it shall pay or cause to be paid to the Trustees the Contributions or other sums to be paid or provided in accordance with the Trust Rules. The Members of Pension scheme shall promptly contribution to the Trust their share as determined by the Board of Trustees from time to time.
6. The Power of appointing of new Trustees and/or removing any Trustees or Trustees shall be vested in the Chairman & Managing Director (CMD) of the Corporation. The CMD may at his description delegate this power to any officer of the Corporation.
7. Each of Trustees covenants with the Corporation that he will on vacating office do and execute all such acts, documents, matters and things as shall be necessary to vest the money, Securities and Investments which may then be standing in his name either singly or jointly with other Trustees or Trustees as the Board of Trustees may prescribe.
8. The Trustees may at any time with the consent of the Corporation or on a recommendation from the Corporation by a Supplementary Deed amend or add to the provision of the Trust Deed or the Rules provided, that such alternation does not adversely affect the benefits being paid from the Trust or the benefits accrued upto the date or such amendment or the object of the Trust provided that no alteration in the Trust Deed, Rules, Constitution or Conditions of the Trust shall be made without the prior approval of the Commissioner.
9. The moneys of the Trust shall be vested in the Trustees who shall have the entire control of the moneys of the Trust and shall administer the Pension Scheme in accordance with the provisions of these presents and the Rules which shall be binding on the Corporation, the Trustees and the Members or other Beneficiaries. The Trustees shall arrange for the investment of the trust moneys and payment of the amounts due to the Members and other eligible Beneficiaries in accordance with the Rules.
10. All expenses incurred by the Trustees in connection with the Administration of the Pension Scheme including the remuneration of persons employed/to be employed by the Trustees audit fees and all expenses incurred by the Trustees in or about the execution of the Trust thereof shall be borne by the Corporation.
11. The moneys of the Pension Scheme, being the Trust property, shall consist of the accumulations of the contribution being the total of contributions received by the Trustees in accordance with the Rules, interest, dividend, securities and other accretions arising from the assets of the Trust as reduced by payments and disbursement to the Members and other Beneficiaries such credits and debits being made in accordance with the Rules.
12. In the event of the Corporation being wound up reconstructed, reconstituted or amalgamated with any other Corporation, the Trustees may make such W.P.(C) No. 6595/2016 and connected matters 27 of 48 arrangement or enter into such agreements as they in their sole discretion shall think fit and proper for the continuance of the Pension Scheme by such reconstructed, reconstituted and amalgamated Corporation as if such reconstructed, reconstituted and amalgamated Corporations were the Corporation within the meaning of these presents provided that no arrangement or agreements under this Clause shall be entered into without the previous approval of the Commissioner. Such arrangements or agreements shall be subject to such conditions as may be imposed by the Commissioner.
13. a. In the event of winding up of the business of the Corporation the provisions of Rule 93 of the Income Tax Rules, 1962, will apply subject to Clause 7 hereof the Trustees shall submit to the Commissioner the proposed Scheme of Arrangement before implementing the arrangements.
b. In the event, the Corporation discontinues further Contributions the Trustees shall adopt either of the following courses according to their discretion. i. The Trustees shall continue to administer the Pension Scheme for the benefit of the existing Members until settlement of their benefits, the benefits being reduced on the advice of the Actuary of the Trust having regard to the assets of the Trust.
OR ii. The Trustees may wind up the Trust immediately with the consent of all Beneficiaries subject to the provisions of the Rule 94 of the Income Tax Rules, 1962. The Scheme for winding up the Trust shall be submitted to the Commissioner and the Trustees shall obtain his approval before implementing this arrangement.
14. This deed of Trust shall be deemed to have take effect on and from 01.04.1995 for all intents and purposes.
IN WITNESS WHEREOF the parties above named S/Shri Pran Nath, Director (Personnel) and Special Power of Attorney of the Corporation for and on behalf of Corporation and S/Shri B.N. Ojha (Oprn.) K.K. Sinha, GM (P&P), R.K. Rustagi, DGM(IR); R.K. Sharma, DGM (IF) Gurmukh Singh, V.K. Sharma, R.K. Singh, S.N. Badoni, P.K. Gupta, R.M. Singh in their capacity as Trustees have executed these presents on the day, month and year first above written .
FOR NATIONAL THERMAL POWER CORPOTAION LTD.
(PRAN NATH) DIR (PERS.) & SPECIAL POWER OF ATTORNEY (TESTATOR) SIGNED, SEALED AND DELIVERED by The above named Trustees S/Shri Witnesses (1) 1. Shri B.N. Ojha, Dir (Oprn.) (TRUSTEE) Signature 2. Shri K.K. Sinha, GM (P&A) (TRUSTEE) Occupation 3. Shri R.K. Rustagi, DGM (IR) W.P.(C) No. 6595/2016 and connected matters 28 of 48 (TRUSTEE) Address 4. Shri R.K. Sharma, DGM (IF) (TRUSTEE)"
(underlining added)
(ii) The second document would be the Memorandum of Agreement dated 7.3.1997 entered into between the respondent no.1/NTPC and the representatives of various federations and associations of the employees of the respondent no.1/NTPC. The same reads as under:-
"MEMORANDUM OF AGREMENT In respect of „Self Contributory Superannuation Benefit (Pension) Scheme for NTPC Employees‟ Between National Thermal Power Corporation Limited, A Company incorporated under the Companies Act, 1956 and having its registered office at NTPC Bhawan, SCOPE Complex, 7, Institutional Area, Lodi Road, New Delhi-110003. (hereinafter called "NTPC" which expression unless repugnant to the context or meaning thereof shall include its successors and assigns) of the first part.
And Representatives of
1. N.T.P.C. Executives Federation of India (NEFI) representing Executives of NTPC.
2. Supervisory Employees‟ Joint Committee (SEJC) representing Supervisors of NTPC.
(hereinafter called the "Associations" which expression unless repugnant to the context or meaning thereof shall include its successors and assigns) of the second part.
A. WHEREAS it is mutually agreed between the parties to formulate a Self Contributory Superannuation Benefit (Pension) Scheme for the benefit of all Employees of NTPC hereinafter referred to as „Pension Scheme‟ And whereas it has been specifically agreed to create a Trust to manage and administer aforesaid Pension Scheme.
B. Whereas it has also been agreed between the parties that NTPC Contribution is establishing the Pension Scheme shall be limited to Rs.100/- per annum only for all employees taken together and the rest of the Contribution shall be made by the employees in order to make the Scheme financially viable. The employees‟ Contribution in the Fund shall be deducted from their salary each month as per the Pension Scheme Rules framed from time to time by the Board of Trustees.
W.P.(C) No. 6595/2016 and connected matters 29 of 48 C. Whereas the Associations have specifically agreed that all employees in categories of Executives and Supervisors working as on date of signing of this MOU and those who join in these categories of Executives & Supervisors in NTPC in future shall compulsorily become member of the Scheme, and have further agreed that the Members‟ Percentage Salary Contribution and Members‟ Additional Contribution to Pension Fund shall be as under C.1. Percentage Salary Contribution:-
Member‟s Age at the time of entry in Percentage Salary Contribution
the Scheme as Percentage of Salary
33 years and below 1.0 %
Above 33<=38 years 1.5%
Above 38<= 43 years 2.0%
Above 43 <= 48 years 3.0%
Above 48<=53 years 4.0 %
Above 53 years 5.0%
C.2 Member‟s Additional Contribution: will be advised by the Trustees from time to time in consultation with Actuaries. For the present Actuaries have advised the following:
C.2.1. Rs.375/- per month per employee for Supervisors & Executives to be escalated @ 8% per annum.
C.2.2.The aforesaid Additional Contributions shall be recovered from the monthly pay of individual members and credited to the Pension Scheme as Member‟s Contribution for which Associations of the Employees authorize NTPC to do so.
C.2.3.It is also agreed that cash equivalent of the items such as Liveries (along with Shoes/Sandies, Raincoat & Stitching charges), Cash amount of Washing Allowance and Tea Subsidy/ Cash Canteen compensation (limited to the Tea subsidy amount) will be paid to the members periodically on specific claims as per procedure to be laid down separately. C.2.4.It is further agreed by the parties that if any Additional Contribution is required to make the Pension Scheme financially viable, the members of the Pension Scheme shall make such Additional Contribution as may be determined by the Board of Trustees from time to time. D.4.Now this Memorandum of Understanding witnesseth as under: D.4.1That 3 (three) Trustees from the Executives‟ Association and 3 (three) Trustees from the Supervisors‟ Association shall be nominated to the Board of Trustees and 7 (seven) Trustees shall be nominated by the Management including the Chairman of the Trust from time to time in order to manage the Pension Trust Properties.
D.4.2That the NTPC shall formulate Trust Deed and the Rules for proper implementation of the Pension Scheme with approval of CMD NTPC or any other authorized officer in this regard by CMD and get the same registered with the Registrar of Assurances.
D.4.3 That it has been specifically agreed between the parties that income tax exemption will be obtained to the effect that the income of the Trust will not be chargeable to income tax. It is also agreed that the necessary W.P.(C) No. 6595/2016 and connected matters 30 of 48 legal formalities/ approvals required for the proper implementation of the Scheme will be promptly taken.
D.4.4 That it has been agreed that no undertaking of any kind whatsoever shall be required from the employees.
D.4.5 That this MOU shall be irrevocable and shall remain operative and effective is perpetuity till the Pension Scheme continues to be in operation. D.4.6 The salient features of the Pension Scheme duly approved by the NTPC Board of Directors and Govt. of India are enumerated at Annexure-I which shall be integral part of this MOU.
D.4.7 That this MOU shall become effective for all purposes and intents from 01.04.1995 and recoveries/Contributions shall start from 1.4.1995 and all employees who were on the rolls of the Company as on 1.4.1995 shall be covered under the Scheme on specific option and on payment of Contributions as required even though they may have retired/died after 1.4.1995. Suitable provisions should be kept in the Trust Rules in this regard by the Board of Trustees. In witness whereof the parties hereof through their authorized representative have signed this MOU on Seventh day of March, 1997 at New Delhi.
For National Thermal For Supervisory For N.T.P.C Executives Power Corporation Ltd. Employees‟ Joint Federation of India (NEFT) Committee(SEJC) Sd/- K.K. Sinha, GM(P &A) Sd/- S.N. Badoni Sd/- Gurumukh, Chairman Sd/-K.A. Rustogi, DGM(IR) Sd/- Jeeyo Nath Sd/- S.P. Sharma, Vice Chairman Sd/-R.K. Sharma, DGM(IF) Sd/- Sd/- V.K. Sharma, A.K.Sadhukhar Secy General Sd/- O.P. Mittal, Sd/- Sd/- C.P. Singh, DGM( Law) K.Anand Kumar NEFI Member Sd/- C.K. Rastogi, Sd/- P.K. Gupta Sd/- Ashok Pandeya, Dy. Co. Secy NEFI Members Sd/- R.M. Singh Sd/- P.H. Arun, NEFI Member C.H.V.Rao Witness (I) Witness (2) Signature : Sd/- Srgera Sd/- Dr. R.B. Singh Occupation: Consultant Service Address: A-403, Manas JVC, NTPC, Apts, Mayur Vihar-I, N.Delhi-110003 Delhi-110091"
(iii) The third document will be the Memorandum of Understanding dated 10.1.1998 between the respondent no.1/NTPC and the W.P.(C) No. 6595/2016 and connected matters 31 of 48 representatives of various Unions of the respondent no.1/NTPC and which memorandum reads as under:-
"MEMORANDUM OF UNDERSTANDING In respect of „Self Contributory Superannuation Benefit (Pension) Scheme for NTPC Employees‟ Between National Thermal Power Corporation Limited, A Company incorporated under the Companies Act, 1956 and having its registered office at NTPC Bhawan, SCOPE Complex, 7, Institutional Area, Lodi Road, New Delhi-110003. (hereinafter called "NTPC" which expression unless repugnant to the context or meaning thereof shall include its successors and assigns) of the first part.
And Representatives of the Unions of National Bipartite Committee. (hereinafter called the "Unions" which expression unless repugnant to the context or meaning thereof shall include its successors and assigns) of the second part.
Whereas NTPC has already created a Trust vide Trust Deed dated 12.3.97 (copy enclosed) to manage and administer the National Thermal Power Corporation Ltd. Self Contributory Superannuation Benefit (Pension) Scheme. Whereas NTPC has already implemented National Thermal Power Corporation Ltd. Self Contributory Superannuation Benefit (Pension) Scheme w.e.f. 1.4.95 for its employees in the pay scales applicable to Executives and Supervisory categories and whereas it has been mutually agreed that the same scheme will also be applicable to all the employees in the category of workmen as well and accordingly workmen representatives will also be appointed as "Trustees" in the National Thermal Power Corporation Ltd. Self Contributory Superannuation Benefit (Pension) Trust.
Whereas the Unions have specifically agreed that all employees of NTPC in categories of Workmen working as on date of signing of this MOU and those who join in workmen category in NTPC in future shall compulsorily become member of the said Scheme.
NOW THEREFORE THIS MEMORANDUM OF UNDERSTANDING WITNESSETH AS UNDER:
1. That in consideration of mutual agreement between the parties it is specifically agreed that all the employees of NTPC in the category of workmen working as on the date of signing of these presents and those who join as workmen category in NTPC in future shall compulsorily become the member of the said National Thermal Power Corporation Ltd. Self Contributory Superannuating Benefit (Pension) Scheme (here in after called the "Scheme"), subject to the provision of para 6.0 here under. A copy each of National Thermal Power Corporation Ltd. Self Contributory Superannuating Benefit (Pension) Scheme Trust Deed and the rules framed there under are attached as integral part of these presents.
W.P.(C) No. 6595/2016 and connected matters 32 of 48
2. That it is further specifically agreed that all the members of the Scheme in the category of workmen as aforesaid shall fully co-operate and abide by the provisions of the said Scheme, Trust Deed/Rules framed thereunder from time to time.
3. That 4 (four) Trustees from Unions of Workmen shall be nominated by them to the Board of Trustees from time to time out of total 17 (Seventeen) Trustees of the Trust created on 12.3.1997.
4. That it is also agreed that the necessary legal formatives/approvals, if any, required for the proper implementation of the Scheme will be promptly taken.
5. That it has been specifically agreed that no undertaking of any kind whatsoever shall be required from the employees for the successful operation of the Pension Scheme.
6. That it is specifically agreed between the parties as follows- 6.1 That Member‟s Additional Contribution will be determined by the Board of Trustees from time to time in consultation with Actuaries. The Board of Trustees shall review the availability of the moneys of the Trust annually or at such interval as may be deemed fit and proper by the Board of Trustees to decide any revision in the Members‟ Additional Contribution under the said Pension Scheme from time to time.
6.2 That for the present Actuaries have advised that Rs. 330/- per month per employee w.e.f. 1.4.95 is required as Additional Contribution amount for Workmen categories of employees and the same is to be further escalated @ 8 % per annum.
6.3 That the aforesaid Additional Contributions shall be recovered from the monthly wages/pay of individual members and credited to the Pension Scheme as Members Contribution for which Unions of the Workmen authorize NTPC to do so.
6.4. That the cash equivalent of liveries items shall be reimbursed to members and hence forth no liveries items in kind will be issued.
7. That this MOU shall become effective for all purposes and intents from 01.04.1995, and recoveries/ Contributions shall start from 1.4.1995, and all employees who were on the rolls of the Company as on 1.4.1995 and those who join NTPC as workman in future shall be covered under the Scheme on payment of Contributions as required.
8. That this MOU shall be irrevocable and shall remain operative and effective in perpetuity till the Pension Scheme continues to be in operation.
In witness whereof the parties hereof through their authorized representative have signed this MOU on Tenth day of January, 1998 at New Delhi. Attachment:
(1). Scheme.
(2). Trust Deed (3). Trust Rules.
S. FOR NTPC LTD. S. FOR UNIONS
No. MANAGEMENT NO WORKMEN
W.P.(C) No. 6595/2016 and connected matters 33 of 48
REPRESENTATIVES . REPRESENTATIVES
S/Shri S/Shri
1. K.K. Sinha 1. Gaya Singh
Director (P & A) Sd/- AITUC(Central) Sd/-
2. A.MOJUMDAR 2. M.N.JHA Sd/-
GM(P & A) Sd/- BMS ( CENTRAL)
3. R.D. GUPTA Sd/- 3. S. DEVROYE Sd/-
GM , BTPS CITY( CENTRAL)
4. N.S.CHOUDHARY Sd/- 4. S.L.PASSEY Sd/-
GM, VSTPP INTUC(CENTRAL)
5. R.K.SHARMA Sd/- 5. R.B. CHOUDHARY Sd/
DGM (IF, FIN) AITUC, VINDHYACHAL,
STPP
6. R.K.RUSTAGI Sd/- 6. S.K. MISHRA, Sd/-
DGM(IR & W),C.C. NTPCEU,
AITUC, KORBA STPS
7. S.KUMAR Sd/- 7. R.R.SINGH Sd/-
DGM (P & A), EOC BMS, SINGRAULI, STPS
8. VINAY KUMAR GUPTA 8. VASHISHT DUBEY, Sd/-
DGM(P& A),BTPS Sd/- BMS, KORBA STPS
9. MOHINDER SINGH Sd/- 9. S.K.BHATNAGAR Sd/-
Sr.MGR (P & A), SSTPS CITU, VINDHYACHAL
STPP
10. RADHEY MOHAN, Sd/- 10. MOHD. WASIM, Sd/-
CPM, KSTPS CITY, KORBA STPS
11. C.Vijay Kumar Sd/- 11. A.K.Maity Sd/-
DGM(P & A), RSTPS INTUC, Farakka STPP
12. A.K.Dutta, Sd/- 12. L.P.Duvey, Sd/-
Sr.MGR(P & A), FSTPP INTUC, VINDHYACHAL,
STPP
13. U. Lal. Sd/- 13. CHANDER PAL, Sd/-
CPM, RhSTPP NTPC WORKERS
UNION,
BADARPUR TPOS
14. S.K. Acharya, Sd/- 14. D.K.SARASWAT, Sd/-
CPM, VSTPP BTPP EMPLOYEES
UNION, BADARPUR
TPS.
15. V.MOHAN RAO, Sd/- 15. RAMDAYAL Sd/-
DGM(P & A), KhSTPP BTPP EMPLOYEES
UNION, BADARPUR TPS
16. A.C. Chaturvadi, 16. JAGDISH CHAND, Sd/-
DGM (P & A),NCPP BPWU, BADARPUR TPS
17. S.K. Chatterjee, Sd/- 17. KIRON MUKHERJEE,
Sr.MGR (IR), CC Sd/-
NTPC WOPRKERS
UNION, BADARPUR TPS
W.P.(C) No. 6595/2016 and connected matters 34 of 48
18. PANKAJ KUMAR Sd/- 18. S.B.YADAV, Sd/-
MGR,(IR/TOS), CC BPWU, BADARPUR TPS
19. A. Banerjee, Sd/- 19. BRIJ NATH Sd/-
MGR(Wages), CC RAASHTRIYA TAAP
MAZDOOR UNION,
SINGRAULI STPS
20. G.D. Agrawal, Sd/- 20. KESHAR RAM Sd/-
DGM(P) NTPC EMPLOYEES
UNION, SINGRAULI
STPS
21. A.N. Dave Sd/- 21. R.N.YADAV, Sd/-
DGM (Pers,HR) CC NTPC EMPLOYEES
UNION, SINGRAULI
STPS
22. R.B.SINGH Sd/-
RAASTRIYA TAAP
MAZDOOR UNION,
SINGRAULI STPS
23. R.K. TRIPATHI Sd/-
RTV KARAMCHARI
SANGH, KORBA STPS
24. H.K. SINGH Sd/-
RTV KARAMCHARI
SANGH, KORBA STPS
25. B. RAJALINGAM Sd/-
BTPC MAZDOOR
UNION,
RAMAGUNDANI STPS
26. B.S. PASHA Sd/-
NTPC MAZDOOR
UNION, RAMAGUNDAM
STPS
27. K.L .MISHRA Sd/-
FSTPP WORKERS
UNION,
FARAKKA STPP
28. S.N. BANERJEE, Sd/-
FSTPP WORKERS
UNION, FARAKKA STPP
29. CPS CHOUHAN, Sd/-
NTPC KEUD, CC.
1. Witness
Name: V.B. Lal Sd/-
Address Dy. Mgr (IR/md) NTPC/ EDC
Occupation: Service.
2. Witness
Name: A.K.Ojh Sd/-
Address Dy. Mgr (Pers), CC, NTPC, Scope Complex Occupation: Service.
W.P.(C) No. 6595/2016 and connected matters 35 of 48 NOW THEREFORE, THIS MEMORANDUM OF UNDERSTANDING WITNESSETH AS UNDER:
1. That in consideration of mutual agreement between the parties it is specifically agreed that all the employees of NTPC in the category of workmen working as on the date of signing of these presents and those who join as workmen category in NTPC in future shall compulsorily become the member of the said National Thermal Power Corporation Ltd. Self Contributory Superannuating Benefit (Pension) Scheme (here in after called the "Scheme"), subject to the provision of para 6.0 here under. A copy each of National Thermal Power Corporation Ltd. Self Contributory Superannuating Benefit (Pension) Scheme Trust Deed and the rules framed there under are attached as integral part of these presents.
2. That it is further specifically agreed that all the members of the Scheme in the category of workmen as aforesaid shall fully co-operate and abide by the provisions of the said Scheme. Trust Deed/Rules framed thereunder from time to time.
3. That 4 (four) Trustees from Unions of Workmen shall be nominated by them to the Board of Trustees from time to time out of total 17 (Seventeen) Trustees of the Trust created on 12.3.1997.
4. That it is also agreed that the necessary legal formalities/ approvals, if any required for the proper implementation of the Scheme will be promptly taken.
5. That it has been specifically agreed that no undertaking of any kind whatsoever shall be required from the employees for the successful operation of the Pension Scheme.
6. That it is specifically agreed between the parties as follows:-
6.1 That Member‟s Additional Contribution will be determined by the Board of Trustees from time to time in consultation with Actuaries, The Board of Trustees shall review the availability of the moneys of the Trust annually or at such interval as may be deemed fit and proper by the Board of Trustees to decide any revision in the Members" Additional Contribution under the said Pension Scheme from time to time.
6.2 That for the present Actuaries have advised that Rs. 330/- per month per employee w.e.f 1.4.95 is required as Additional Contribution amount for Workmen categories of employees and the same is to be further escalated 8 % per annum.
6.3 That the aforesaid Additional Contributions shall be recovered from the monthly wages/pay of individual members and credited to the Pension Scheme as Member‟s Contribution for which Unions of the Workmen authorize NTPC to do so.
6.4 That the case equivalent of liveries items shall be reimbursed to Members and hence forth no liveries items in kind will be issued.
7. That this MOU shall become effective for all purposes and intents from 01.04.1995, and recoveries/ Contributions shall start from 1.4.1995 and all employees who were on the rolls of the Company as on 1.4.1995 and those who join NTPC as workman in future shall be covered under the Scheme on payment of Contributions as required.
W.P.(C) No. 6595/2016 and connected matters 36 of 48
8. That this MOU shall be irrevocable and shall remain operative and effective in perpetuity till the Pension Scheme continues to be in operation.
In witness whereof the parties hereof through their authorized representative have signed this MOU on Tenth day of January, 1998 at New Delhi.
Attachment
(1). Scheme
(2). Trust Deed
(3). Trust Rules.
Sd/- Sd/- Sd/- Sd/- Sd/- Sd/-
Sd/- 14.5.98" (underlining added)
11. There would be a fourth document which will be relevant which are the Rules governing the respondent no.2/Pension Trust but the said Rules being prolix cannot be reproduced as a whole and hence I would make reference to some of the Rules being Rules 1.1.30, 2.1, 2.2, 2.11, 2.18 and 3.1 and which Rules read as under:-
"1.1.30 TRUSTEES shall mean the Board of Trustees for the time being of the Pension Fund.
2.1 The number of Trustees shall not be less than 3 (Three) or more than 17 (seventeen) including the Chairman of Board of Trustees. A company so defined in Clause (1) of Sub-Section (i) of Section 3 of the Companies Act, 1956 shall not be appointed as a Trustee without the prior approval of the Commissioner. At any meeting of the Trustee 50% of the Trustees representing of Employees and Employer shall form a quorum.
2.2 The First Trustees shall be appointed by the Chairman & Managing Director of the Corporation. The power of appointing a Trustee or Trustees subsequently shall also be vested in the CMD of the Corporation from amongst the Members of the Pension Scheme, including Chairman of the Board of Trustees, subject to the provision of Sub-Rule (2.1) hereof. The CMD of the Corporation or any other officer duly authorized by CMD in this regard shall be entitled to appoint new Trustee either in addition to the existing Trustees or in place of Trustees who shall have died, vacated office or retired, for the purpose of facilitating the administration of the Trust. On every such appointment of a new Trustee or Trustees, the moneys of the Trust shall ipso facto vest in new Trustee or Trustees.
2.11 The Trustees shall comply with and carry out all such directions as may be given to them by the Corporation from time to time in relation to any matter in W.P.(C) No. 6595/2016 and connected matters 37 of 48 respect of which the Corporation has power under these presents to determine and decide. A Certificate issued by the authorized officer of P& A Deptt. Of the Corporation as to the admission of any Member or as to the death of any Member or his retirement or dismissal from the service of the Corporation shall constitute a good and sufficient authority to Trustees & shall be conclusive as to all facts stated therein.
2.18 The Board of Trustees shall not, at any time, be made liable for any other money than what actually come into their hands or for the failure of any Bank, any of the Companies or for the dishonesty of any clerk, servant or Attorney or other persons with whom any part of the Trust property may be deposited or be placed in charge or for anything other than their own negligence, willful acts, deeds and defaults. Notwithstanding anything contained in these presents, the Board of Trustees shall be at liberty to utilize any part of the total corpus of the Trust money, any part of the total interest received by the Trust, total Contributions received in respect of Members who cease to be Members and the total net appreciation (if any) of the assets of the Trust in reimbursing themselves for all sums of money, costs, charges or damages suffered or borne by them in connection with the administration of the Trust and in meeting their obligations as Trustees regardless of the insufficiency of the total moneys for the purpose of meeting all obligations of the Trustees, and the Trustees shall be entitled to be indemnified by the Corporation against all proceedings, costs and expenses occasioned by any claim in connection with the Trust not arising from their willful negligence or dishonesty or fraud or default. 3.1 CONTRIBUTION TO THE TRUST BY THE CORPORATION:-
The Corporation shall contribute to the Trust an amount of Rs.100/- per annum for all the Employees taken together and such Contribution shall be made over to the Trust before the end of the accounting year of the Corporation."
(underlining added)
12. It is an undisputed fact emerging on record that the respondent no.2 is a self contributory pension trust i.e entire funds which form the corpus for payment of pensionary benefits to the retired employees of respondent no.1 are on account of contributions of the employees of the respondent no.1. The only contribution of the respondent no.1 is a total sum of Rs. 100 per year as per Rule 3.1 of the Rules of the respondent no.1 and the administrative cost of running the trust vide Clause 10 of the Trust Deed. This Rule 3.1 has to be read W.P.(C) No. 6595/2016 and connected matters 38 of 48 with Clause 2 and 9 of the Trust Deed, and which show that monies of the trust are monies only of the trust and the respondent no.1 has no concern or any entitlement to the funds of the respondent no.2. Therefore, it is clear that one of the principal test which is laid down with respect to whether an entity is or is not a State under financial control of the Government is completely absent in the present case. Respondent no.2 therefore cannot be said to be a State under Article 12 of the Constitution of India inasmuch as there is absence of all pervading financial support of the Government or the respondent no.1, or any financial control of the Government or the respondent no.1, in the respondent no.2. For this reason therefore the respondent no.2 cannot be held to be a State under Article 12 of the Constitution of India and consequently, the writ petition will not be maintainable against the respondent no.2 because respondent no.2 is not a State by applying the test of lack of financial contribution and lack of financial control of the Government.
13. The next issue is that whether even if there is no overwhelming financial contribution or financial control of the Government in the respondent no.2, can respondent no.2 still be taken as a State under Article 12 of the Constitution of India on the ground W.P.(C) No. 6595/2016 and connected matters 39 of 48 that there exists control of the Government or Government nominees in the Board of the respondent no.2. In support of this argument, learned counsel for the petitioner has placed very strong reliance upon Clause 8 and 10 of the Trust Deed with Rules 2.2 and 2.11 of the Rules governing the respondent no.2. It is argued on behalf of the petitioner that since by virtue of Clause 6 of the Trust Deed, the power of appointing a trustee is solely in the Chairman and Managing Director (CMD) of the respondent no.1, hence, it is the respondent no.1/instrumentality of State which controls the respondent no.2 and hence respondent no.2 should be held to be a State under Article 12 of the Constitution of India. It is further argued on behalf of the petitioner that even if the Trust Deed has to be amended then in that situation Clause 8 of the Trust Deed states that the Trust Deed cannot be amended without the consent of the respondent no.1 or on a recommendation of the respondent no.1, and therefore, according to the petitioner there is complete control of the respondent no.1 over the respondent no.2. It is further argued by relying upon Rule 2.2 of the Rules that this Rule 2.2 once again shows that it is the CMD of the respondent no.1 who appoints the original trustees as also the subsequent trustees of the respondent no.2. Finally, reliance is placed W.P.(C) No. 6595/2016 and connected matters 40 of 48 upon Rule 2.11 to argue that the respondent no.2 will comply with the directions of the respondent no.1 from time to time.
14. (i) I cannot agree with the aforesaid arguments urged on behalf of the petitioner of control of Government in the respondent no.2 through the respondent no.1, inasmuch as, merely because the CMD of the respondent no.1 appoints the trustees would not mean that the respondent no.2 would become an entity under control of and governed by the respondent no.1. Power has been given to the CMD of the respondent no.1 to appoint trustees in view of the dominant position of the CMD heading the respondent no.1, but such function which is performed by the CMD of the respondent no.1 in appointing trustees is not towards performing by the CMD of functions of the respondent no.1 itself. There is no function of the respondent no.1, much less statutory in nature, of the respondent no.1 having to control and administer the respondent no.2. In fact, paras A and B at the outset of the Trust Deed dated 12.3.1997 make it abundantly clear that the administration of the trust has to be under the Trust Deed and by the trustees of the Trust, and not by the respondent no.1, and once the management and administration therefore is by the trustees, more so with pension scheme being a "self contributory" one i.e of no financial W.P.(C) No. 6595/2016 and connected matters 41 of 48 contribution whatsoever of the respondent no.1, accordingly, it cannot be held that respondent no.2 is being controlled by the respondent no.1.
(ii) Further it is also seen that out of the total trustees of the respondent no.2, six trustees are employees of various federations/associations of the respondent no.1 and who are trustees not by performing their functions as employees of the respondent no.1 but the factum of their being employees of the respondent no.1 is only incidental and a reason only for there being appointed as trustees of respondent no.2. It is not as if by employees of the respondent no.1 being appointed as trustees of the respondent no.2, that the respondent no.1 in any manner intends to or actually controls the respondent no.2.
(iii) In addition to the six trustees of the federation and association of the employees of the respondent no.1, four other persons are appointed as trustees from the Unions of the workmen of the respondent no.1, and as provided for in para 3 of the Memorandum of Understanding dated 10.1.1998 which has been reproduced above. Once again on nominations, such employees who become trustees are not while acting as trustees of respondent no.2 performing any duties as employees of the respondent no.1 and such trustees being employees of respondent W.P.(C) No. 6595/2016 and connected matters 42 of 48 no.1 is only an incidental fact and a reason for them being appointed as trustees of the respondent no.2, and no further.
15. I therefore do not find that merely because the CMD of the respondent no.1 appoints the trustees of the respondent no.2 or employees of the respondent no.1 are the trustees of the respondent no.2 that for such reasons it can be held that respondent no.2 is an instrumentality of State as per Article 12 of the Constitution of India.
16. That takes us to the aspect as to whether respondent no.2 can be said to be performing a statutory function or a public function. That the respondent no.2 does not come into existence on account of a Statute is indubitable. Also, it is not as if the respondent no.2 when acting under the Trust Deed dated 12.3.1997 is performing any statutory functions under a specific Statute. Therefore, one thing is clear that as against the respondent no.2, a writ petition cannot lie on the ground that respondent no.2 is performing statutory functions under a Statute, much less by which respondent no.2 has been created. The entity of the respondent no. 2 is not created under a Statute, but is created under a private Trust Deed.
17. The sole issue now remaining is that whether the respondent no.2 can be said to be performing a public function or a W.P.(C) No. 6595/2016 and connected matters 43 of 48 public law function or a function which is inherently equivalent to a public law function or a public function. I have put a query to counsel for the petitioner to show me any judgment that when a pension trust is created by employees of a company/society/legal entity for payment of pension to the retired employees of a public sector enterprise out of the funds of the employees themselves, then whether such an activity would amount to a public function. Learned counsel for the petitioner cannot site any judgment that when by a Trust Deed a pension trust is created by employees of a public sector enterprise which undertakes the performing of functions under the Trust Deed for payment of pension out of the funds of the employees themselves will amount to performing of a public function. In this regard some amount of relevance will turn upon the language of the letter dated 12.4.1991 issued by the Government of India, Department of Public Enterprises, and pursuant to which the various public sector enterprises have embarked upon framing of schemes and implementation thereto for payment of pension to its employees. This letter dated 12.4.1991 of the Department of Public Enterprises reads as under:-
"GOVERNMENT OF INDIA MINISTRY OF PROGRAMME IMPLEMENTATION DEPARTMENT OF PUBLIC ENTERPRISES Public Enterprises Bhawan, Block No.14, CGO Complex, W.P.(C) No. 6595/2016 and connected matters 44 of 48 Lodi Road, New Delhi-110003.
Dated April 12, 1991.
OFFICE MEMORANDUM Subject: Pension Scheme for the employees of PSEs.
1. Employees of PSEs, under the administrative control of the Government of India, get their retirement benefits under the existing Contributory Provident Fund and the Gratuity Schemes applicable to them. Some of the PSEs/Administrative Ministries, in the past, had suggested that Government may examine the feasibility of introducing a Pension Scheme for employees in the PSEs.
2. It has been decided that while the existing retirement benefits, namely, Contributory Provident Fund and Gratuity Schemes should continue, the individual PSEs may, if they so desire, work out a suitable Annuity Scheme through the LIC, based on purely voluntary contributions made by the employees, through a fund outside the PSE without any liability on the PSE/Government. The management‟s contribution to the superannuation fund which would be established by the PSEs would be restricted to Rs.100/- (Rupees one hundred) per annum for all the employees taken together. These schemes would be approved by the government (i.e. the administrative ministry acting in consultation with this department) on a case to case basis. Since the annuity schemes would be based on the contribution of the employees, the schemes should be made effective on prospective basis only. The employees who have already retired from the service of PSEs, prior to introduction of (annuity schemes), would not be eligible for the benefits of the said schemes.
3. All Administrative Ministries/Departments of the Government of India are requested to bring the foregoing to the notice of the PSEs under their administrative control for information.
(Krishna Chandra) Joint Director, Department of Public Enterprises Tel No. 360841 To All Administrative Ministries/Department of Government of India.
(underlining added)
18. In my opinion, the underlined portions of para 2 of the letter dated 12.4.1991 shows that there would be no liability of the public sector enterprises or the Government with respect to any pension scheme which is framed to give pensionary benefits to retired W.P.(C) No. 6595/2016 and connected matters 45 of 48 employees of public sector enterprises and which provides pension from self-contribution of employees, clinches the issue that the Government has basically taken a completely "hands off policy" as regards the issue of payment of pension to the retired employees of public sector enterprises including the respondent no.1. Therefore, it has to be held that when a pension scheme is framed and implemented through the implementation of Trust Deed having on its Board employees of the public sector enterprises, there is no public law function or public function being performed either by the respondent no.1 or by the respondent no.2 or by the respondent nos. 1 and 2 jointly and severely.
19. Learned counsel for the petitioner argued that India being a Welfare State and there are Directive Principles of State Policy in the Constitution of India, and one such Directive Principle being Article 39 which provides that there must be adequate means of livelihood, payment of pension therefore should be held to be a public function because it touches upon the livelihood of the citizens.
(i) In my opinion, the argument urged on behalf of the petitioner by arguing that India is a Welfare State and there are Directive Principles of State Policy, hence, the payment of pension would become a public W.P.(C) No. 6595/2016 and connected matters 46 of 48 function, is an argument which is far too stretched beyond the meaning of the expressions „public law function‟ or „public function‟. If I accept the argument urged on behalf of the petitioner, then on every issue which is contained in the Directive Principles of such policy, such an issue or aspect will become a public law function or a public function and that in fact, in such a scenario, then there will be no reason why in each and every case there is no need of filing any civil proceedings in a civil court but every issue can be treated as an issue which would then become a subject matter within the scope of Article 226 of the Constitution of India, inasmuch as, Directive Principles of such policy under the Constitution of India by their very nature and language are extremely wide and almost limitless so to say.
(ii) I therefore cannot accept the argument that payment of pension to a retired employee of public sector enterprises will become a public law function or public function on account of Directive Principles of State Policy.
20. In view of the aforesaid discussion, this Court does not have jurisdiction to entertain this writ petition under Article 226 of the Constitution of India. This writ petition is dismissed with liberty to the W.P.(C) No. 6595/2016 and connected matters 47 of 48 petitioner to approach the competent court to seek reliefs in accordance with law. Parties are left to bear their own costs.
21. This judgment will be a judgment which will also dispose of and dismiss the writ petitions being W.P. (C) No. 6595/2016, W.P. (C) No. 10113/2016, W.P. (C) No. 1093/2017, W.P. (C) No. 1414/2017, W.P. (C) No. 6931/2016, W.P. (C) No. 8094/2016, W.P. (C) No. 8101/2016, W.P. (C) No. 8105/2016, W.P. (C) No. 8107/2016, W.P. (C) No. 8112/2016, W.P. (C) No. 8116/2016, W.P. (C) No. 8117/2016, W.P. (C) No. 8119/2016, W.P. (C) No. 8146/2016, W.P. (C) No. 9848/2016, W.P. (C) No. 9963/2016, W.P. (C) No. 9974/2016, W.P. (C) No. 10022/2016, W.P. (C) No. 2010/2016, W.P. (C) No. 2092/2016, W.P. (C) No. 2289/2016, W.P. (C) No. 2327/2016, W.P. (C) No. 4839/2016, W.P. (C) No. 6125/2016, W.P. (C) No. 6179/2016, W.P. (C) No. 6930/2016, W.P. (C) No. 7076/2016, W.P. (C) No. 9513/2016, W.P. (C) No. 9536/2016, W.P. (C) No. 9538/2016, W.P. (C) No. 9539/2016 and W.P. (C) No. 1848/2017 and which have already been mentioned in the memo of parties at the beginning of this judgment.
FEBRUARY 28, 2017 VALMIKI J. MEHTA, J AK/ib/sm W.P.(C) No. 6595/2016 and connected matters 48 of 48