IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 27TH SEPTEMBER 2010 / 5TH ASWINA 1932 WP(C).No. 25193 of 2010(S) -------------------------- PETITIONER: --------------- P.K.IBRAHIM, MEMBER, NATIONAL COUNCIL, PEOPLES' UNION FOR CIVIL LIBERTIES, RESIDING AT A1-JANNAH, I.S.PRESS ROAD, ERNAKULAM, KOCHI-682 014. BY ADV. SRI.P.CHANDRASEKHAR DR.ABRAHAM P.MEACHINKARA RESPONDENTS: --------------- 1. THE UNION OF INDIA REPRESENTED BY SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF RAILWAYS, NEW DELHI. 2. THE RAILWAY BOARD, GOVERNMENT OF INDIA, MINISTRY OF RAILWAYS, NEW DELHI REPRESENTED BY ITS CHAIRMAN. 3. THE INDIAN RAILWAY CATERING & TOURISM CORPORATION LTD.(IRCTC), 9TH FLOOR, BANK OF BARODA BUILDING, 16 PARLIAMENT STREET, NEW DELHI-11001, REPRESENTED BY ITS MANAGING DIRECTOR. ADV. SRI.T.P.M.IBRAHIM KHAN,SR.SC, RAILWAYS FOR R1TO3 SRI.N.B.SUNIL NATH,SC, RAILWAYS FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/09/2010, ALONG WITH WPC NO. 28243 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(W.P.(C) 25193/2010) PETITIONER'S EXHIBITS: P1: TRUE COPY OF MEMORANDUM AND ARTICLES OF ASSOCIATION OF R3. P2: TRUE COPY OF RAILWAY CATERING POLICY, 2004. P3: TRUE COPY OF MEMORANDUM OF UNDERSTANDING DT.17.1.2007 OF R3 WITH THE INDIAN RAILWAYS. P4: TRUE COPY OF LETTER DT.23.9.2008 OF R2 TO R3. P5: TRUE COPY OF LIST CONTAINING SCORE OF R3. P6: TRUE COPY OF STATUS PAPER ON CATERING OPERATIONS PUBLISHED BY R3 IN JULY 2010. P7: TRUE COPY OF MEMORANDUM OF UNDERSTANDING FOR THE YEAR 2010-2011 ENTERED INTO BETWEEN R3 AND THE SECRETARY, MINISTRY OF RAILWAYS. P8: TRUE COPY OF ANNUAL REPORT OF R3 FOR THE YEAR 2004-2005. P9: TRUE COPY OF ANNUAL REPORT OF R3 FOR THE YEAR 2007-2008. P10: TRUE COPY OF LETTER DT.21.7.2010 OF R2 ALONG WITH CATERING POLICY 2010. P11: TRUE COPY OF NEWS ITEM DT.23.7.2010 IN BUSINESS LINE DAILY. P12: TRUE COPY OF NEWS ITEM APPEARED IN TELEGRAPH DAILY DT.23.7.2010. P13: TRUE COPY OF NEWS REPORT APPEARED IN BUSINESS LINE DT.3.8.2010. P14: TRUE COPY OF NEWS REPORT APPEARED IN FINANCIAL CHRONICLE DT.3.8.2010. P15: TRUE COPY OF NEWS REPORT DT.26.7.2010 IN INDIAN EXPRESS DAILY. P16: TRUE COPY OF LETTER DT.20.8.2010 ISSUED BY R3 TO R2. P17: TRUE COPY OF LETTER DT.26.8.2010 OF R2 TO R3. P18: TRUE COPY OF RAILWAY BUDGET SPEECH DT.24.2.2010 OF THE HON'BLE RAILWAY MINISTER. RESPONDENT'S EXHIBITS: R-I: TRUE COPY OF THE CHAPTER- OF MANUAL OF OFFICE PROCEDURE OF MINISTRY OF RAILWAYS, RAILWAY BOARD IS REGARDING MACHINERY OF GOVERNMENT. R-II: TRUE COPY OF RAILWAY BUDGET 2009-10. R-III: TRUE COPY OF RAILWAY BUDGET 2010-11. TRUE COPY P.S. TO JUDGE C.R. C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ. .................................................................... W.P.(C) Nos.25193 and 28243 of 2010 .................................................................... Dated this the 27th day of September, 2010. JUDGMENT Ramachandran Nair, J. Challenge made in these two Writ Petitions is against the Catering Policy, 2010 published by the Railways on 21.7.2010 produced as Ext.P10 in W.P.(C) No.25183/2010 which is a public interest litigation filed by an Advocate of this Court. Under the new Policy, mobile catering services including base kitchens will be taken over from the Indian Railways Catering and Tourism Corporation (hereinafter called "IRCTC") and the same will be departmentally managed by the Railways in a phased manner. The catering operations of the IRCTC on implementation of the Policy will be confined to running of Food Plaza, Food Courts and Fast Food Units. W.P.(C) 28243/2010 is filed by IRCTC Officers and Staff Associations along with another challenging the Catering Policy of 2010 on the ground that on implementation of the Policy, IRCTC's work will be reduced W.P.(C) Nos.25193&28243/2010 2 leading to retrenchment or loss of employment. A detailed counter affidavit is filed in W.P.(C) No.25193/2010 on behalf of the Railways justifying Catering Policy of 2010. We have heard counsel appearing for the petitioners in both the Writ Petitions and the Assistant Solicitor General appearing for the respondents. 2. The common ground raised by both the writ petitioners is that formation of the IRCTC and the taking over of catering service from the Railways by the Corporation was based on a policy decision taken by the Cabinet and so much so, it cannot be changed through a policy decision taken by the Railways. In other words, a major policy decision on catering taken by the Cabinet 10 years back should not be reversed by the Railway Ministry through the issue of Catering Policy 2010. Admittedly there is a policy change from 2010 onwards in as much as all kind of mobile catering services including catering on moving trains which were hitherto handled by the IRCTC are taken over by the Railways in a phased manner leaving IRCTC's catering operations only to the running of Food Plazas and Food Courts at various Stations. During the hearing held on 16.8.2010 we felt that if W.P.(C) Nos.25193&28243/2010 3 Catering Policy is introduced as part of the Railway Budget which got approval from the Parliament, then Railway is absolutely free to implement it because a policy decision taken with Parliament's approval cannot be questioned on the ground that it does not have the approval of the Cabinet. Therefore, we directed the respondents to specifically confirm to this court whether the Catering Policy challenged by the petitioners is part of the Railway Budget and if not, whether it has got Cabinet approval. In the affidavit filed on behalf of the Railway Board by the Deputy Chief Commercial Manager, it is clearly stated that the Railway Minister while answering questions raised in Parliament in the course of debate on Railway Budget specifically stated that the IRCTC will be reconstituted and the Railway will manage Catering Department leaving Tourism activities to IRCTC. It is specifically stated in the affidavit that the Catering Policy of 2010 has the approval of the Parliament as it forms part of the Railway Budget 2010-2011. However, counsel appearing on behalf of the petitioners in both the cases denied the claim in the counter affidavit by contending that Catering Policy 2010 is not part of the Railway Budget W.P.(C) Nos.25193&28243/2010 4 and it has no specific approval from the Parliament. According to the petitioners, the impugned Catering Policy of 2010 is a reversal of the earlier Cabinet decision constituting IRCTC and transferring all forms of Railway Catering including catering in mobile trains to the said Corporation. Whatever be the correctness of the rival claims, we are of the view that this is not an issue which calls for our decision for more than one reason. In the first place, Catering Policy 2010 was published by the Railways on 21.7.2010. Obviously the Policy came to the notice of general public and the parliamentarians in our country. In fact, when the Policy was published, Parliament was in session and nothing stopped the Parliament from taking steps to get the Catering Policy 2010 discussed and if the same is against Government's policy or against public interest, to reverse it. Therefore, respondent's contention that Railway Catering Policy 2010 has the approval of Parliament cannot be easily rejected. Secondly, we do not think there is any scope for judicial review in the conduct of Government business as visualised under Articles 73, 74 and 77 of the Constitution of India. Article 74 makes it very clear that the Council of Ministers with Prime W.P.(C) Nos.25193&28243/2010 5 Minister as it's head will advise the President. The Prime Minister obviously is the Head of the Council of Ministries and it is probably for him to decide which are the matters which require Cabinet approval and which are the matters that could be left to the Ministries concerned for their decision. The question as to which are the issues that require decision by the Cabinet as a whole and which are the matters that could be left for decision by the Ministry are all issues beyond the scope of judicial review. Court can only ensure compliance of law including enforcement of provisions of the Constitution. We have not been shown that the Catering Policy 2010 is issued in violation of any statutory provisions or constitutional provisions. The objectives sought to be achieved under the Policy are quite laudable because the Railways want to provide hygiene and quality food to the traveling public at an affordable price. The IRCTC is only a subsidiary of the Railways and, therefore, it is fully under it's control. If the Railway is dissatisfied with the catering services by the Corporation, nothing stops the Railway from changing the Policy and taking over to itself the catering service. In our interim order we had specifically queried whether W.P.(C) Nos.25193&28243/2010 6 Railway could not correct or improve the IRCTC so that the objective stated in the Policy is achieved without reversal of the Policy as such. However, the Railway has decided to take over catering services to itself leaving IRCTC to handle only Food Plazas, Food Courts and Fast Food units. We do not think the court has authority to interfere with the reversal of the Catering Policy adopted by the Railways. However, if the objective is not achieved, probably aggrieved persons not served with quality food at moderate cost will have cause of action against the Railways. 3. We, therefore, do not find any merit in the objection raised by the public interest litigant who is an Advocate of this court that the Railway Catering Policy of 2010 is against public interest or public policy. We, therefore, dismiss W.P.(C) No.25193/2010 filed by him. 4. In W.P.(C) No.28243/2010 the petitioners are Associations of IRCTC Officers and staff of the IRCTC. Their grievance is that the change in Catering Policy will lead to disemployment of large number of IRCTC employees and there may be retrenchment or adverse consequences for their services. However, Assistant Solicitor General W.P.(C) Nos.25193&28243/2010 7 submitted that as of now they have no grievance and invariably they will be accommodated as and when restructuring takes place in the organisation. We find force in this contention because as of now there is no proposal to retrench or remove any one from service and no decision is taken adversely affecting the service conditions of any employee of the IRCTC. Further, we do not think policy decision of the Government could be questioned on the ground that the same will lead to retrenchment of employees who are taken care of under the provisions of service law and conditions of service applicable to them. Therefore, we do not find any merit in W.P.(C) 28243/2010 filed by the employees of the IRCTC. Consequently we dismiss the said W.P.(C) also. C.N.RAMACHANDRAN NAIR Judge K.SURENDRA MOHAN Judge pms