HARISH BHATTS Vs. UNION OF INDIA

JUDGEMENT

(1.) INITIALLY the petition was filed by 103 petitioners. In pursuance of the subsequent events, an amended memo of parties has been filed by the petitioners naming as many as 80 petitioners left in the petition. It is informed by the counsel for the respondents that one petitioner, Ram Pal Singh, who is petitioner No.50 herein, has also left the service of the respondent and thereby leaving a total number of 79 petitioners pursuing this petition. With the consent of counsel of parties, I have heard the matter finally.

(2.) IT was the petitioners' case that they were working as daily wagers and had been appointed without any interview or advertisement and were getting minimum wages on their positions as Helpers, Waiters, etc. They made representations of regularization of their services with the respondent, DSOI, but without any action of resolution on their part. They also approached the office of Labour Commissioner for consideration where settlement was arrived at between the parties in conciliation proceedings dated 17th June, 2003. In pursuance of the same, the Memorandum of Settlement was to be filed by the parties. After that, screening of the casual employees was to be undertaken by DSOI for absorption. It is alleged by petitioners that the respondent/DSOI has not taken any positive action in this direction though there existed more than 100 vacancies. On this premise, the relief is sought that their services be regularized w.e.f. due dates of their employments. The petition is mainly contested by the respondent/DSOI on two grounds :

(3.) As against this, the learned counsel for the petitioner states that this respondent has claimed it to be a 'State' with the Sales Tax Deptt. for claiming exemption and has also declared it to be a 'State' in the case filed by one employee in Civil Suit No.2206/2008. I have considered the submissions made by the learned counsel for the petitioners and also the respondent/DSOI. There cannot be any dispute that respondent No.4/DSOI is a proprietary Institute of a society registered as Defence Services Officers Welfare Fund (DSOWF). In this regard, reference is made to Certificate of Registration under the Societies Registration Act which was issued on 2nd January, 1963. The petitioners do not dispute this aspect. However, as noted above, their submission is that this respondent/DSOI has claimed itself to be a 'State' before the Sales Tax authority and was claiming some exemptions. In this regard, reference was made to a letter dated 24th March, 1975 purported to have been written by some Hony. Secretary of DSOWF to the Secretary of respondent/DSOI. Reference is also made to copy of the minutes of the meeting of DSOI dated 6th January, 2008. The learned counsel has also referred to the resolution of DSOWF dated 19th May, 1986. I have perused these documents and do not see anything to be mentioned therein that DSOI was either funded, or controlled or managed by the Ministry of Defence or any other department of Government of India or any other Government. In the letter dated 24th March, 1975 purported to be written by Honorary Secretary of DSOWF to DSOI it was stated that DSOI is a subordinate office of Ministry of Defence. In the meeting of 6th January the Institute had resolved to take up the case with Ministry of Defence for exemption from payment of property tax. In the minutes of 19th May, 1986, suggestion of the Auditors was put up before the Committee and it was decided that DSOI is neither registered as a society nor it is filing income tax returns as it is branch of DSOWF. These nowhere in any form describe the DSOI to be an instrumental agency of the Government. The mention of the civil case by learned counsel also does not support his contention firstly because the same has not yet been filed in the present proceedings and so it is not known as to what was stated by DSOWF and in what context. In any case, mere fact that either DSOI or DSOWF at any point of time either claimed any benefit of sales tax or it claimed to be a department of Ministry of Defence, will not make this respondent to be an instrumental agency of the Government and an authority to be covered under the ambit of Article 12 of Constitution of India. It is primarily because there is nothing on record to controvert the plea taken by the DSOI that it has been running and managing its affairs from the contributions and donations of the members and was not taking any grant -in -aid or fund from the Government Exchequer in any form. Similar question arose before this Court in the case of Lt. Col. N.C. Rastogi Vs. Union of India and Ors. AIR 1986 Delhi 128 wherein it was held as under :