Full Judgment Text
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CASE NO.:
Appeal (civil) 2399 of 1986
PETITIONER:
G. Bassi Reddy
RESPONDENT:
International Crops Research Instt. & Anr.
DATE OF JUDGMENT: 14/02/2003
BENCH:
RUMA PAL & B.N. SRIKRISHNA
JUDGMENT:
J U D G M E N T
With CA Nos. 5800/99, 2400-2411/96,
2858/96, 2393-2398/96
RUMA PAL, J.
The appellants were employees of the respondent No.1
(ICRISAT). Their services were terminated. They filed writ
petitions before the High Court of Karnataka against ICRISAT
and the Union of India. The writ petitions were dismissed. The
first writ petition so dismissed was W.P.No.2730/1981 ( K.S.
Mathew v. ICRISAT) . A second group of writ petitions was
dismissed on 30th June 1988. The dismissals are the subject
matter of these appeals. Both the Division Benches held that
ICRISAT was an international organisation and was immune
from being sued because of a Notification issued in 1972 under
the United Nations (Privileges and Immunities) Act,1947 and
that a writ under Article 226 could not be issued to ICRISAT.
What or who is ICRISAT? Was the High Court right in
holding that it was not amenable to the writ jurisdiction under
Article 226?
ICRISAT was proposed to be set up as a non-profit
research and training centre by the Consultative Group on
International Agricultural Research (CGIAR). The CGIAR is an
informal association of about 50 government and non-
governmental bodies and is co-sponsored by the Food and
Agriculture Organisation of the United Nations, (FAO), the
United Nations Development Program (UNDP), the United
Environment Program (UNEP) and the World Bank. The
members of the CGIAR at the relevant time were the African
Development Bank, the Asian Development Bank, Belgium,
Canada, Denmark, the Food and Agriculture Organization of
the United States, Ford Foundation, France, Germany, the
Inter-American Development Bank, the International Bank for
Reconstruction and Development, the International
Development Research Centre, Japan, Kellogg Foundation,
Netherlands, Norway, Rockefeller Foundation, Sweden,
Switzerland, United Kingdom, United Nations Development
Programme and the United States of America. In addition there
were representatives from the five major developing regions of
the world, namely, Africa, Asia and the Far East, Latin America,
the Middle East, Southern and Eastern Europe.
The object of setting up ICRISAT was to help developing
countries in semi-arid tropics to alleviate rural poverty and
hunger in ways that are environmentally sustainable. The
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developing countries include India, parts of south-Asian, sub-
Saharan and South and Eastern Africa and parts of Latin
America. The object was sought to be achieved by research
and development of scientific technologies which could improve
the quantity and quality of sorghum (bajra), pearl and finger
millet, pigeon peas, chick peas and ground nut.
Certain members of the Consultative Group agreed to
provide funds to support the setting up and continued
functioning of ICRISAT. The financing members of CGIAR
entered into an agreement on 20th March 1972 with the
International Bank for Re-construction and Development (IBRD)
to establish a special account. The IBRD then entered into an
agreement with Ford Foundation under which Ford Foundation
undertook to implement the proposal for setting up ICRISAT.
A memorandum of agreement was then entered into
between the Government of India and the Ford Foundation
(acting on behalf of the Consultative Group) on 28th March 1972
(referred to as the March agreement) for the establishment of
ICRISAT. The agreement provided that the principal
headquarters of ICRISAT would be at Hyderabad, India. The
agreement recorded that ICRISAT would, inter-alia, serve, as
a world centre for conducting research and training of
scientists for the improvement of sorghum, millet, pigeon peas
and chick peas.
Clause 4 of the March agreement under the head
’Administration and Governance’ provided:
"The Institute shall be established in
India as an autonomous, international
philanthropic, non-profit, research, educational,
and training organisation.
The Institute shall be administered by a
Director who shall be selected by the
Governing Board. The Director shall be
responsible for the internal operation and
management of the Institute and for assuring
that the programme and objectives of the
Institute are properly developed and carried
out. He shall be a member of the Board ex-
officio.
The Board shall be responsible for
development and/or approval of the Institute’s
programmes and for the policies under which
the Institute operates, shall be responsible for
selection and employment of the Director, and
shall approve the appointment of the senior
staff members on the recommendation of the
Director. The Board shall also review and
approve the budget estimates for the Institute.
The Governing Board may consist of no
more than fifteen members selected as
follows: -
3 members designated by the host country.
3 members designed by the Consultative
Group on International Agricultural Research.
6 to eight members at large with relevant
interests and qualifications from countries or
areas being served or from countries or
agencies which have been concern for and
provide substantial support for work in the
fields of the Institute’s major responsibilities.
1 Director of the Institute, ex-officio.
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The Consultative Group on International
Research, through its sub-committee for
ICRISAT shall be responsible for constituting
the Initial Governing Board. India will be
represented on the sub-Committee."
Pursuant to the March agreement a further agreement
was entered into between Ford Foundation representing
CGIAR and the Government of India on 7th July 1972 by which
ICRISAT was established. ICRISAT set up its headquarters
with its office, staff quarters, seed producing centres and
research laboratories in about 3000 hectres of land in Andhra
Pradesh provided by the Indian Government.
The initial financial support for setting up and
administering ICRISAT was provided substantially by the
Governments of the United Kingdom, United States of America,
United Nations Development Programme (UNDP) and IBRD.
Other members of the Consultative Group provided non-
monetary service in kind. According to the figures presented by
ICRISAT to Court, India’s contribution to the respondent No. 1
has ranged between 0.3% to 2.0% as against 99.7% to 98% of
the total contribution from other countries.
ICRISAT has programmes in Tanzania, Sudan, Niger,
Mali, Nigeria, Senegal and Upper Volta under the United
Nations Development Programme (UNDP) and in 1984 set up a
second centre in Niger. It has also entered into agreements
with Niger, Malawi, Mali, Nigeria, Kenya and Zimbabwe for
establishing centres and regional programmes in these
countries.
ICRISAT is staffed by persons from 22 nations including
India who work in Asia, Africa and Latin America. Training has
been imparted to 2500 research members and students from
97 countries including 850 from India. There are 15 members
in the Governing Board of ICRISAT apart from three nominees
of the Government of India. The other members are from
different countries and as at present are from Norway, Zambia,
Phillipines, Germany, France, Sweden, USA, Canada,
Australia, Japan, Brazil and Nigeria.
Clause 6 of the March agreement provided for the grant
of immunity to ICRISAT by the Government of India under the
United Nations (Privileges and Immunities) Act, 1947. The
clause is reproduced below:
"(a) The Government of India shall
recognise the Institute as a
philanthropic, non-profit organisation
with the purposes set forth in this
Memorandum. The international status
of the Institute will be ensured by the
Government of India issuing suitable
Notification as contemplated in Clause 3
of the United Nations (Privileges and
Immunities) Act, 1947 extending the
operation of Articles I and II, Sections
2,3,4,5,6,7 and 8 of the Schedule of the
said Act to the Institute. Further, the
interests of non-Indian officials of the
Institute staff will be safeguarded to the
extent; envisaged in Article V, Section
17, 18(b), (d), (e) and (g), 19,20 and 21
of the said Schedule and Government of
India instructions thereunder being no
less favourable than that extended to
non-Indian officials of the IBRD".
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Section 3 of the United Nations (Privileges and
Immunities) Act, 1947 (hereafter referred to as ’1947 Act’)
empowers the Central Government by notification in the
Official Gazette to declare that the provisions of the Schedule
to the 1947 Act shall apply, subject to such modification, if any,
as the Central Government may consider necessary or
expedient for giving effect to any international agreement,
convention or other instruments to confer on any international
organisation and its representatives and officers privileges and
immunities as provided for in the Schedule to the 1947 Act and
"notwithstanding anything to the contrary contained in any
other law", the provisions of the 1947 Act so declared to be
applicable are "to have the force of law in India".
Pursuant to clause 6 of the agreement and in exercise of
powers conferred by Section 3 of the 1947 Act, a notification
was issued by the Government, Ministry of External Affairs on
28th October 1972 which was duly gazetted on the same day.
By the notification the Central Government declared:
"that the provisions of Article I, Article II
and Article V (Section 17, 18(b), (d), (e)
and (g), 19, 20 and 21) of the Schedule
to the said Act shall, subject to the
modifications specified below, apply
mutatis mutandis, to the International
Crops Research Institute for the Semi-
Arid Tropics and to its officers recruited
on an international basis, except that the
exemptions under Sections 18 and 19
shall apply only to the non-Indian
officials of the said Institute.
Modifications
(i) for the words "United Nations" wherever they
occur, the words "international Crops
Research Institute for the Semi-arid Tropics"
shall be substituted;
(ii) for the words "Secretary General" wherever
they occur, the word "Director" shall be
substituted.
2. In Section 17 and Section 20, words "General
Assembly and Security Council", the words
"Governing Board" shall be substituted.
3. In Section 19,
(i) for the words "Secretary-general" and all
Assistant Secretaries-general" the word
"Director" shall be substituted.
(ii) for the words "their spouses", the words "his
spouse" shall be substituted".
The Articles of the Schedule to the 1947 Act which were
made applicable under the notification were Articles I, II and
certain provisions of Article 5. Article I of the Schedule deals
with the juridical personality of the international organisation,
Article II with its ’Property, Funds and Assets" and Article 5
with the ’Officials" of the International Organisation and the
grants of privileges and immunities to them. What was not
included was Article VIII, particularly section 29 thereof, which
would have made the Organisation liable to make provisions
for "appropriate modes of settlement of disputes arising out of
contracts or other disputes of a private law character to which
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the international organisation is a party".
However, clause 6 (2) of the March agreement recorded
the Government of India’s assurance of authority to the
Governing Board of ICRISAT to establish employment policies
and conditions for the senior staff of the Institute on an
international basis. In addition, the Governing Board was
given authority under the agreement to establish terms and
conditions of employment for junior scientists, technicians,
clerical, administrative and operational support personnel. The
conditions of employment were expected "to more nearly
approximate accepted norms of the host country, with such
modifications as may be necessary to assure availability of well
qualified staff and a high quality of performance".
Guidelines known as Personnel Policy Statements
relating to the services of personnel which were to remain
effective and be applied pending formulation of Rules were
framed by ICRISAT on 3rd July 1976 which included the
procedure in respect of disciplinary action. The procedure
envisaged the framing and issuing of a charge-sheet by the
Personnel Manager, reply thereto by the employee within the
stipulated period, examination of the reply by the Personnel
Manager with the Department Head, the dropping of the case
in the event the explanation was found sufficient, and
institutional inquiry in the event the explanation was not
accepted and the measure of punishment. The nature of the
indiscipline and misconduct warranting major penalty for
example dismissal etc. was defined. The disciplinary authority
named for specified categories of employees had also the
authority to constitute the enquiry committee and to suspend
employees. The ICRISAT (Discipline and Appeal Rules) came
to be formulated subsequently in 1991.
As all the appeals raise the same issues, we limit the
factual consideration to Civil Appeal No. 2399 of 1986. The
appellant in this appeal was appointed by ICRISAT on 15th
January 1975 as a Field Helper. The offer of appointment
issued to the appellant stated that apart from the terms and
conditions specifically mentioned in the appointment letter, the
other terms of employment would be governed by the ICRISAT
Personnel Policy Statement as amended upto date and all such
further amendments made from time to time and intimated to
the appellant. It was made clear that the Personnel Policy
Statement would form part of the terms and conditions of
service as though embodied specifically in the offer of contract
of employment. A copy of the Personnel Policy Statement was
enclosed with the letter. The appellant signed the offer of
employment on 20th January 1975 expressly accepting the
terms and conditions. In a separate letter dated 23rd April 1975
the appellant acknowledged the receipt of the amendments to
the Personnel Policy for professional and support staff (locally
recruited). The letter recorded that the appellant had studied
and understood the contents thereof and undertook to abide by
ICRISAT’s policies. The letter concluded with the following
paragraph:
"In particular I am aware of the legal
position of the ICRISAT and I undertake
to respect the same and seek ventilation
of my grievances, if any, strictly and only
through the Grievance Procedure laid
down in these policies. I further
appreciate that since the ICRISAT is an
international organisation immune from
the laws of India, I am not entitled to
seek recourse under such laws,
including industrial laws, for rectification
of grievances."
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On 23rd June 1983, in view of growing indiscipline in the
Institute the Director-General issued a circular which inter-alia
stated:
"A new set of disciplinary and appeal
procedures for staff has been drafted
and the Staff-Management Joint Council
will be consulted in this regard. Until
these procedures are promulgated,
procedures laid down in 1976 continue
to apply. These provide for minor and
major penalties according to the
Schedule in Annexure I. Where the
nature of the misconduct warrants a
major penalty, an enquiry must be held
before the penalty can be proposed and
awarded."
A show cause notice was issued to the appellant calling
for an explanation for the acts of misconduct specified therein.
The appellant gave an explanation on 25th July 1983. The
explanation was not found satisfactory and an Enquiry Officer
was appointed to enquire into the charges framed against the
appellant. In August 1983, the appellant filed the writ
application which was resulted in the impugned order. The
prayer in the writ petition was for issuance of a writ of
mandamus directing ICRISAT to frame rules regarding the
conditions of service which "nearly approximate to the
accepted custom of India" and to direct the Union of India to
take action for fulfilment of clause 6(a)(2) of the March
agreement between the Union of India and CGIAR.
It is not clear whether any copy of the writ petition was
served on the respondents at that stage. In any event,
ICRISAT proceeded with the disciplinary enquiry against the
appellant. An inquiry notice was issued on 13th September
1983. The appellant did not participate in the inquiry.
Ultimately, the Enquiry Officer submitted a report to the
Personnel Manager on 17th October 1983 finding the charges
against the appellant proved. The order of termination was
passed on 5th August 1983 by the Principal Administrator. In
the order dismissing the appellant, it was stated that the
appellant would stand relieved with effect from 5th December
1983 and that the appellant would be entitled to three months’
salary in lieu of notice consequent upon the cessation of his
employment with ICRISAT. It does not appear that the
appellant’s writ petition was amended to challenge the order of
dismissal.
It was submitted on behalf of the appellant before us that
the 1947 Act had been enacted by Parliament to give effect to
the Convention on the Privileges and Immunities of the United
Nations, 1946. According to the appellants the power to grant
immunity to ’International Organizations’ under the 1947 Act
therefore did not extend to organizations like ICRISAT which
was neither an organ of the United Nations nor a specialised
agency within the meaning of Article 57 of the U.N. Charter.
The appellant also contended that in any event the immunity
granted to ICRISAT could not extend beyond or to matters
unrelated to the functions of the organization. It is argued that
the prohibition on the employees to take recourse to the
municipal Courts in connection with settlement of disputes
relating to employment would not come within the grant of that
immunity nor could immunity be granted against the power of
judicial review. Reliance has been placed on Dadu V. State of
Maharashtra 2000(8) SCC 437 in this connection. It is also
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argued by the appellants that the Government could not enter
into a treaty or any international agreement nor issue a
notification pursuant thereto which may have the effect of
infringing fundamental or constitutional rights of the citizens in
derogation of Constitutional provisions. It was submitted that
the provisions of the March agreement and the notification
would therefore have to be read in a manner in keeping with
the constitutional provisions. It was submitted that the non
inclusion of Sections 29 and 30 of Article VIII of the Schedule
to the 1947 Act in the notification, is violative of the
fundamental rights of the ICRISAT employees under Articles
14, 21 and 311. It was submitted that the absence of an
independent and impartial Tribunal to decide labour disputes
between ICRISAT and its employees was also in violation of
Article 8 of the Universal Declaration of Human Rights. It was
submitted that the conferment of the immunity without
imposition of a corresponding obligation on ICRISAT to provide
for an impartial tribunal to decide disputes between ICRISAT
and its employees is violative of Article 14. It was finally
submitted that the impugned order of termination was arbitrary
and in violation of the principles of natural justice and was
devoid of procedural fairness.
Learned counsel for the Union of India submitted that
the notification had been issued in terms of the March
agreement entered into between the Government and CGIAR.
According to the Union of India, it could not unilaterally change
the terms of the agreement with CGIAR pursuant to which the
notification had been issued. It was also submitted that
ICRISAT was not subject to the Court’s jurisdiction under
Article 226 as it was neither the Government nor any wing of
the Government nor was it in any way accountable or subject
to or under the financial or administrative control of the
Government. ICRISAT supported the Union of India and also
submitted that no writ application was maintainable against it.
It was further submitted that in any event the action which was
taken against the appellants was in accordance with the
procedural rules framed by ICRISAT which were fair and in
keeping with the domestic law, namely, the Industrial
Employment (Standing) Orders, 1946.
The appellant’s arguments that the Union of India could
not have granted immunity from legal process to ICRISAT
under the 1947 Act and that in any event the grant of such
immunity could not serve to curtail the Courts Constitutional
power under Article 226, proceeds on the basis that were it not
for such immunity, a writ could issue to ICRISAT. If a writ did
otherwise lie against a body, it is a moot point whether judicial
review of its actions could be excluded by grant of immunity
either by Statute or by a Statutory Notification. Since, in our
view, no writ would lie against ICRISAT, therefore the further
questions whether it could or should have been granted
immunity or whether the immunity debarred remedies under
Article 226 do not arise.
A writ under Article 226 lies only when the petitioner
establishes that his or her fundamental right or some other
legal right has been infringed [Calcutta Gas Co. v.State of
W.B.; AIR 1962 SC 1044, 1047-1048]. The claim as made by
the appellant in his writ petition is founded on Articles 14 and
16. The claim would not be maintainable against ICRISAT
unless ICRISAT were a ’State’ or authority within the meaning
of Article 12. The tests for determining whether an
organization is either, has been recently considered by a
Constitution Bench of this Court in Pradeep Kumar Biswas v.
Indian Institute of Chemical Biology & ors. (2002) 5 SCC 111 at
p. 134 in which we said:
" The question in each case would be
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whether in the light of the cumulative facts as
established, the body is financially,
functionally and administratively dominated by
or under the control of the Government. Such
control must be particular to the body in
question and must be pervasive. If this is
found then the body is a State within Article
12. On the other hand, when the control is
merely regulatory whether under statute or
otherwise, it would not serve to make the body
a State".
The facts which have been narrated earlier clearly show
that ICRISAT does not fulfil any of these tests. It was not set
up by the Government and it gives its services voluntarily to a
large number of countries besides India. It is not controlled by
not is it accountable to the Government. The Indian
Government’s financial contribution to ICRISAT is minimal. Its
participation in ICRISAT’s administration is limited to 3 out of
15 members. It cannot therefore be said that ICRISAT is a
State or other authority as defined in Article 12 of the
Constitution.
It is true that a writ under Article 226 also lies against a
’person’ for "any other purpose". The power of the High Court
to issue such a writ to "any person" can only mean the power
to issue such a writ to any person to whom, according to well-
established principles, a writ lay. That a writ may issue to an
appropriate person for the enforcement of any of the rights
conferred by Part III is clear enough from the language used.
But the words "and for any other purpose" must mean "for any
other purpose for which any of the writs mentioned would,
according to well established principles issue.
A writ under Article 226 can lie against a "person" if it is
a statutory body or performs a public function or discharges a
public or statutory duty [Praga Tools Corporation v. C.A.
Imanual, (1969) 1 SCC 585; Andi Mukta Sadguru Trust v. V.R.
Rudani, (1989) 2 SCC 691, 698; VST Ind. Ltd. v. VST Ind.
Workers’ Union & Another, (2001) 1 SCC 298]. ICRISAT has
not been set up by a statute nor are its activities statutorily
controlled. Although, it is not easy to define what a public
function or public duty is, it can reasonably be said that such
functions are similar to or closely related to those performable
by the State in its sovereign capacity. The primary activity of
ICRISAT is to conduct research and training programmes in
the sphere of agriculture purely on a voluntary basis. A service
voluntarily undertaken cannot be said to be a public duty.
Besides ICRISAT has a role which extends beyond the
territorial boundaries of India and its activities are designed to
benefit people from all over the world. While the Indian public
may be the beneficiary of the activities of the Institute, it
certainly cannot be said that the ICRISAT owes a duty to the
Indian public to provide research and training facilities. In
Praga Tools Corporation V. C.V. Imanual AIR 1960 SC
1306, this Court construed Article 226 to hold that the High
Court could issue a writ of mandamus "to secure the
performance of the duty or statutory duty" in the performance
of which the one who applies for it has a sufficient legal
interest". The Court also held that:
".. an application for mandamus will not
lie for an order of reinstatement 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
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of India, 1957 SCR 738]
We are therefore of the view that the High Court was right
in its conclusion that the writ petition of the appellant was not
maintainable against ICRISAT.
The second relief sought in the writ petition is against the
Union of India. The prayer is that the Union should take action
to fulfil clause 6 of the March agreement. The prayer is
unsustainable as in substance the relief claimed is against
ICRISAT. Furthermore It is doubtful whether the agreement
between the Indian Government and ICRISAT is specifically
enforceable as such in domestic Courts, particularly when the
agreement does not form part of any domestic legislation. The
case of Dadu V. State of Maharashtra relied upon by the
appellant has no bearing on the issues which arise for
consideration in the case before us. In that case, the
Constitutional validity of Section 32A of the Narcotics Drugs
and Psychotropic Substances Act, 1985 which prohibited
appellate Courts from suspending sentence despite the appeal
being admitted, was questioned. The impugned section clearly
ran contrary to the provisions of the Criminal Procedure Code
which allowed the appellate courts discretionary powers to
suspend sentences. One of the arguments raised by the
Respondent State to justify this apparent contradiction was that
the section had been enacted in discharge of the Government
of India’s international obligations under the United Nations
Convention Against Illicit Trafficking in Narcotics and
Psychotropic, 1988. The Court held that the Convention clearly
and unambiguously showed that the Convention was made
subject to "constitutional principles and the basic concept of its
legal system prevalent in the polity of the member country".
The States argument was rejected as it was found as a fact
that there was no international agreement which obliged
countries notwithstanding the constitutional principles and
basic concept of its legal system, to put a blanket ban on the
power of the Court to suspend the sentence awarded to a
criminal under the Act. There was no conflict between the
Government’s international obligation and the domestic law.
In the present case there is no question of any conflict. What is
sought for on the other hand is an enforcement of a clause in
an international agreement.
In any event, it could not be said that the Personnel
Policy Statement framed by ICRISAT dealing with internal
discipline was not in terms of clause 6 (2) of the March
agreement. It has not been shown how these guidelines
(which were in fact followed in the appellant’s case) deviated
from or did not approximate to the established disciplinary
procedures followed by other private concerns in the country.
In these circumstances, we dismiss the appeals without
any order as to costs.
In the instant case it cannot be said that the
appellant’s legal right has been infringed. The appellants had
a contractual relationship (contract of employment) with the
respondent institute and any right or obligation between the
two parties was purely contractual in nature. In a number of
cases, the Supreme Court has categorically held that a writ
petition under Article 226 cannot be resorted to in order to
enforce a contractual right. Accordingly the general rule is that
no writ under Article 226 will lie to quash an order terminating a
contract of service, albeit illegally [ S.R. Tewari v. Distt. Board,
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Agra, AIR 1964 SC 1680; Bachhanidhi v. State of Orissa, AIR
1972 SC 843, 845; Executive Committee of Vaish Degree
College, Shamli v. Lakshmi Narain, (1976) 2 SCC 58]
Exception is made only where order of termination is made by
a statutory body acting in breach of a mandatory obligation
imposed by a statute. [V.R. Mishra v. Managing Committee, Jai
Narain College, (1972) 1 SCC 623] ICRISAT is certainly not a
statutory body nor its activities are mandated by a statute.
The scope of a remedy under Article 226 of the
Constitution is wider that the remedy under Article 32 since the
latter "is restricted solely to enforcement of fundamental rights
conferred by Part III of the Constitution". Nain Sukh Das V.
State of Uttar Pradesh 1953 SCR 1184 at 1186.
Waiver
Krishan Lal v. State of J &K 1994 (4) SCC 422
The petition in that case has been dismissed on the
basis of a report submitted by the Anti-Corruption Commission
set up under the provisions of the Jammu and Kashmir
(Government Servants) Prevention of Corruption Act, 1962.
Section 17(5) of that Act provided:
"After the Commission submits its
recommendation and after the Governor
arrives at a provisional conclusion in
regard to the penalty to be imposed, the
accused shall be supplied with the copy
of proceedings of the inquiry and called
upon to show cause by a particular date
why the proposed penalty should not be
imposed upon him."
It is not in dispute that the order of dismissal had been
passed without supplying a copy of the proceedings of the
inquiry held by the Anti-corruption Commission to the
petitioner. The question arose as to whether this right could be
waived by the employee. This Court held affirming the latin
maxim of law "Quilibet potest renunciare juri pro se introducto"
meaning "an individual may renounce a law made for his
special benefit" and that the requirement of giving a copy of the
proceeding of the inquiry mandated by Section 17(5) of the Act
being one for the benefit of the individual concerned could be
waived despite being stated in mandatory terms. However, by
a scrutiny of the facts it was found that the petitioner had not
waived the benefit and had all along a copy of the proceedings
and, therefore, the order of dismissal was set aside.
Unless the respondent No. 1 is given immunity from
Article 226 it would loose the very immunity which was granted
by the notification and the purpose for which the immunity was
granted would be defeated.
Legislative powers conferred on the Parliament under
Article 245 is to be exercised "subject to the provisions of the
Constitution". Therefore, it has been held by this Court in In
re.The Kerala Education Bill, 1957, "Although Parliament
may enact legislation in discharge of obligations imposed on it
by the directive principles enshrined in Part IV of the
Constitution, it must nevertheless subserve and not override
the fundamental rights conferred by the provisions of the
Articles contained in Part III of the Constitution. In determining
the scope and ambit of the fundamental rights relied on by or
on behalf of any person or body the court may not entirely
ignore these directive principles of State policy laid down in
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Part IV of the Constitution but should adopt the principle of
harmonious construction and should attempt to give effect to
both as much as possible".
Even where Article 226 is clearly available, nevertheless
this Court has normally not interfered in academic matters
regarding equivalence to the University degrees for the
selection of candidates for academic posts. (University of
Mysore V. Govinda Rao AIR 1965 SC 491)
Common law liability of an employer towards his
employee has been subjected to statutory limitations under
labour laws enacted in this country and the Constitution in so
far as particular employees are concerned. In respect of those
employees who do not fall in either of these categories the
common law principle has to operate.
No doubt although the jurisdiction of the civil court to
entertain a suit may be excluded by the statute, nevertheless
this does not affect the jurisdiction of the High court or the
Supreme Court to issue higher prerogative writs. (Union of
India V. A.V. Narasimhalu 1970(2) SCR 146, 150)
"Article 253 - Legislation for giving
effect to international agreements
Notwithstanding anything in the
foregoing provisions of this Chapter,
Parliament has power to make any law
for the whole or any part of the territory
of India for implementing any treaty,
agreement or convention with any other
country or countries or any decision
made at any international conference,
association or other body."
"246 Subject matter of laws made by
Parliament and by the Legislatures of
States (1) Notwithstanding in clauses
(2) and (3), Parliament has exclusive
power to make laws with respect to any
of the matters enumerated in List I in the
Seventh Schedule (in the Constitution
referred to as the "Union List")
.
"Seventh Schedule (Article 246)
List I - Union List
(13) Participation in international
conferences, associations and
other bodies and implementing
of decisions made thereat.
(14) Entering into treaties and
agreements with foreign
countries and implementing of
treaties, agreements and
conventions with foreign
countries."
The concept of grant of immunity from legal process is
not per-say constitutionally repugnant. Article 261(2) and (3)
provide:
"361(2) No criminal proceedings
whatsoever shall be instituted or
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continued against the President or the
Governor of a State, in any court during
his term of office.
361(3) No process for the arrest or
imprisonment of the President, or the
Governor of a State shall issue from any
court during his term of office."
Similarly under Article 105(2) which provides for the
powers, privileges etc. of the Houses of Parliament and of the
Members and committees thereof says:
"105(2) No member of Parliament
shall be liable to any proceedings in any
court in respect of anything said or any
vote given by him in Parliament or any
committee thereof, and no person shall
be so liable in respect of the publication
by or under the authority of either House
of Parliament of any report, paper, votes
or proceedings."
See also Article 194(2).
1. Carlshad M.W. Mfg. Co, V. H.M. Jagtiani AIR 1952 Cal 315 at 318