Jharkhand High Court
Jharkhand Baif Institute For ... vs Union Of India Through Secretary on 31 August, 2018
Author: S.N. Pathak
Bench: S.N.Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S).No. 2626 of 2018
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Jharkhand BAIF Institute for Sustainable Livelihood and Development Workers Association through its Regional President, Chadrashekhar Kumar, son of Jayprakash Yadav, road No. 1, Maharshi Mehi Nagar, Godda. ... ... ... ...Petitioner
-Versus-
1. Union of India through Secretary, Ministry of Agriculture and Farmer Welfare, Govt. of India, New Delhi.
2. State of Jharkhand through Secretary, Department of Animal Husbandry & Fisheries, Ranchi.
3. The Directorate of Dairy Development, Ranchi through its Director.
4. BAIF Institute for Sustainable Livelihoods and Development, Ranchi through its Regional Director.
... ... ... ....Respondents
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CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK For the Petitioner : Mr. Anoop Kumar Agarwal, Advocate For the Respondents: Mr. B.B. Sinha, Advocate
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04/ 31.08.2018 Heard the parties.
2. Petitioner has approached this Court with a prayer for direction upon the respondents to allow its member to continue with their services under respondent No. 4, in view of the fact that the scheme/ programme under which they were appointed is still in existence. Further prayer has been made for a direction upon the respondents to implement Clause 3 (iii) of the Order No. 63 dated 10.11.2010 (Annexure-2).
3. The factual exposition as has been delineated in the writ petition is that the petitioner is the association of 587 workers of "Jharkhand BAIF Institute for Sustainable Livelihood and Development". The Govt. of India had launched a scheme namely Rashtriya Krishi Vikas Yojana in the year 2007, as an umbrella scheme for ensuring holistic development of agriculture and allied sectors by allowing the States to choose their own agriculture and allied sector for development activities as per the District/ State Agriculture plan and the said scheme is still in existence. The Govt. of Jharkhand had issued Office Order No. 2 63 dated 10.11.2010, whereby BAIF has been nominated for running of the Centre (Dairy Cattle Development Centre) and in this regard, an MoU was signed by the State Govt. and BAIF. Thereafter, for smooth functioning of the Centre in all the 24 districts of Jharkhand, respondent-BAIF had appointed the members for the petitioner Association to the post of Programme Operators, who functions as the Incharge of the Centre (Dairy Cattle Development Centre). The members of the petitioner Association were also provided training by the Govt. in between 2005 to 2017. The members of the petitioner Association were functioning and working to the full satisfaction of the respondent and there were no complaint whatsoever against them.
It is the specific case of the petitioner that all of a sudden the respondent-BAIF had given a notice to the members of the petitioner Association with regard to termination of their contract and advised to work on the SEY (Self Employed Youth) Mode, on the ground that the MoU with the State Govt. has come to an end and they are not getting any financial support from the Govt. for paying the honorarium of the members of petitioner Association. Thereafter, the petitioner had also represented through letter dated 16.05.2018 before the respondent but no heed was paid to the said representation. The respondent-BAIF is also pressurizing the Centre Incharge to vacate the Centres and return all the equipment and materials provided to them. Hence, this writ application has been filed by the petitioner.
4. Mr. Anoop Kumar Agarwal, learned counsel appearing for the petitioner submits that the members of the petitioner-Association have the right to continue in service when the scheme under which they are working is still in existence. The respondent-BAIF after expiry of the contract/ MoU cannot take a unilateral decision on in its own for running the Centres which was created by the Govt. and the Govt. has the ownership of the same. Learned counsel further argues that the respondent-State is duty bound to implement its own Office Order No. 63 dated 10.11.2010. The members of the petitioner-Association had been imparted training by the Govt. and some of them are working from more than 13 years and has reached at an age from where it is difficult for them to get any other employment/ job.
5. On the other hand, Mr. B.B. Sinha, learned counsel appearing for respondent No. 4, BAIF, raised preliminary objection on the maintainability of the writ petition. It has been argued that the present matter relates to contractual employees of a non-governmental organization, whose terms have already 3 expired on 31.03.2018 and they have not accepted the alternate option to work on SEY Mode. The Govt. has no control whatsoever on the functioning of the members of the petitioner Association nor these members are in the services of the Govt. and accordingly, order or direction in the nature of mandamus cannot be issued against the Govt. Learned counsel further argues more than 250 persons have shifted to SEY Mode, which goes to the very root of sustainability purpose and objects of the respondent No. 4, for which the organization is still ready and willing to provide SEY mode to the members of the petitioner Association. The present writ involves contractual dispute and the same cannot be agitated under Article 226 of the Constitution against a Company with charitable object, formed and established under Section-8 of the Companies Act and which is not an instrumentality of the State under Article-12 of the Constitution.
6. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered opinion that no case is made out for interference in the writ petition. Admittedly, the members of the petitioner Association were employed under respondent No. 4, which is a non- governmental organization and their terms have already expired on 31.03.2018. The State Govt. nor the Central Govt. has any control whatsoever over the respondent No. 4 and the administration of the respondent No. 4 in no way is dependent upon the Govt. This Court sitting under Article 226 cannot agitate the dispute against a Company with charitable object, formed and established under Section-8 of the Companies Act and which is not an instrumentality of the State under Article-12 of the Constitution. The Hon'ble Apex Court in catena of decision has held that private companies/ organization would normally not be amenable to the writ jurisdiction under Article 226 of the Constitution.
The Hon'ble Supreme Court in case of Praga Tools Corporation Vs. Shri C.A. Imanual & Ors., reported in AIR 1969 SC 1306 has held that:-
"In our view the High Court was correct in holding that the writ petition filed under Art. 226 claiming against the company mandamus or an order in the nature of mandamus was misconceived and not maintainable. The writ obviously was claimed against the company and not against the conciliation officer in respect of any public or statutory duty imposed on him by the Act as it was not he but the company who sought to implement the impugned agreement. No doubt, Art. 226 provides that every High Court shall have power to, issue to any person or authority orders and writs including writs in the nature of habeas corpus, mandamus etc., or any of them for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose. But it is well understood that a mandamus lies to secure 4 the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest. Thus, an application for mandamus will not lie for an order of restatement to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute. (see Sohan Lal v. Union of India) (1). In Regina v. Industrial Court & Ors. (2) mandamus was refused against the Industrial court though set up under the Industrial Courts Act, 1919 on the ground that the reference for arbitration made to it by a minister was not one under the Act but a private reference. "This Court has never exerciseda general power" said Bruce, J., in R. v. Lewisham Union (1)"to enforce the performance of their statutory duties by publicbodies on the application of anybody who chooses to apply fora mandamus. It has always required that the applicant for a mandamus should have a legal and a specific right to enforce the performance of those duties". Therefore, the condition precedent for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is, in form, a command directed to a person, corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. 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 ins-Lance, to an official of 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 purposes of fulfilling public responsibilities. (cf. Halsbury's Laws of England, (3rd ed.) Vol. 11, p. 52 and onwards).
7. As a cumulative effects of the aforesaid observations, rules, guidelines, legal proposition and judicial pronouncements, I find that the respondent No. 4 is not an instrumentality of the State under Article 12 of the Constitution and thus, a writ against an order passed by the respondent No. 4 in respect of its employees is not maintainable.
8. Resultantly, the writ petition stands dismissed.
(Dr. S.N. Pathak, J.) kunal/-