Case: K.K. Saksena Vs.  International Commission on Irrigation and Drainage

measure to play. The activities undertaken by the respondent-society, a nongovernmental organization, do not actually partake the nature of public duty or state actions. There is absence of public element as has been stated in V.R. Rudani and others (supra) and Sri Venkateswara Hindu College of Engineering and another (supra). It also does not discharge duties having a positive application of public nature. It carries on voluntary activities which many a non-governmental organizations perform. The said activities cannot be stated to be remotely connected with the activities of the State. On a scrutiny of the constitution and by-laws, it is difficult to hold that the respondent-society has obligation to discharge certain activities which are statutory or of public character. The concept of public duty cannot be construed in a vacuum. A private society, in certain cases, may be amenable to the writ jurisdiction if the writ court is satisfied that it is necessary to compel such society or association to enforce any statutory obligation or such obligations of public nature casting positive public obligation upon it. 35. As we perceive, the only object of the ICID is for promoting the development and application of certain aspects, which have been voluntarily undertaken but the said activities cannot be said that ICID carries on public duties to make itself amenable to the writ jurisdiction under Article 226 of the Constitution. 42) We are in agreement with the aforesaid analysis by the High Court and it answers all the arguments raised by the learned senior counsel appearing for the appellant. The learned counsel argued that once the society is registered in India it cannot be treated as international body. This argument is hardly of any relevance in determining the character of ICID. The focus has to be on the function discharged by ICID, namely, whether it is discharging any public duties. Though much mileage was sought to be drawn from the function incorporated in the MOA of ICID, namely, to encourage progress in design, construction, maintenance and operation of large and small irrigation works and canals etc., that by itself would not make it a public duty cast on ICID. We cannot lose sight of the fact that ICID is a private body which has no State funding. Further, no liability under any statute is cast upon ICID to discharge the aforesaid function. The High Court is right in its observation that even when object of ICID is to promote the development and application of certain aspects, the same are voluntarily undertaken and there is no obligation to discharge certain activities which are statutory or of public character. 43) There is yet another very significant aspect which needs to be highlighted at this juncture. Even if a body performing public duty is amenable to writ jurisdiction, all its decisions are not subject to judicial review, as already pointed out above. Only those decisions which have public element therein can be judicially reviewed under writ jurisdiction. In The Praga Tools Corporation v. Shri C.A. Imanual & Ors. (1969) 1 SCC 585 ), already discussed above, this Court held that the action challenged did not have public element and writ of mandamus could not be issued as the action was essentially of a private character. That was a case where the concerned employee was seeking reinstatement to an office. 44) We have also pointed out above that in Sata Venkata Subba Rao (supra) this Court had observed that administrative law in India has been shaped on the lines of English law. There are catena of judgments in English courts taking same view, namely, contractual and commercial obligations are enforceable only by ordinary action and not by judicial review. In Queen (on the application of Hopley) v . Liverpool Health Authority & Ors. (unreported) (30 July 2002), Justice Pithford helpfully set out three things that had to be identified when considering whether a public body with statutory powers was exercising a public function amenable to judicial review or a private function. They are: (i) whether the defendant was a public body exercising statutory powers; (ii) whether the function being performed in the exercise of those powers was a public or a private one; and (iii) whether the defendant was performing a public duty owed to the claimant in the particular circumstances under consideration. 45) Even in Anadi Mukta Sadguru (supra), which took a revolutionary turn and departure from the earlier views, this Court held that any other authority mentioned in Article 226 is not confined to statutory authorities or instrumentalities of the State defined under Article 12 of the Constitution, it also emphasized that if the rights are purely of a private character, no mandamus could issue. 46) It is trite that contract of personal service cannot be enforced. There are three exceptions to this rule, namely: (i) when the employee is a public servant working under the Union of India or State; (ii) when such an employee is employed by an authority/ body which is a State within the meaning of Article 12 of the Constitution of India; and (ii) when such an employee is workmen within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and raises a dispute regarding his termination by invoking the machinery under the said Act. In the first two cases, the employment ceases to have private law character and status to such an employment is attached. In the third category of cases, it is the Industrial Disputes Act which confers jurisdiction on the labour court/industrial tribunal to grant reinstatement in case termination is found to be illegal. 47) In the present case, though we have held that ICID is not discharging any public duty, even otherwise, it is clear that the impugned action does not involve public law element and no public law rights have accrued in favour of the appellant which are infringed. The service conditions of the appellant are not governed in the same manner as was the position in Anadi Mukta Sadguru (supra). 48)

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In the present case, since ICID is not funded by the Government nor it is discharging any function under any statute, the only question is as to whether it is discharging public duty or positive obligation of public nature. It is clear from the reading of the impugned judgment, the High Court was fully conscious of the principles laid down in the aforesaid judgments, cognizance whereof is duly taken by the High Court. Applying the test in the case at hand, namely that of ICID, the High Court opined that it was not discharging any public function or public duty, which would make it amenable to the writ jurisdiction of the High Court under Article 226It is trite that contract of personal service cannot be enforced. There are three exceptions to this rule, namely: (i) when the employee is a public servant working under the Union of India or State; (ii) when such an employee is employed by an authority/ body which is a State within the meaning of Article 12 of the Constitution of India; and (ii) when such an employee is workmen within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and raises a dispute regarding his termination by invoking the machinery under the said Act. In the first two cases, the employment ceases to have private law character and status to such an employment is attached. In the third category of cases, it is the Industrial Disputes Act which confers jurisdiction on the labour court/industrial tribunal to grant reinstatement in case termination is found to be illegalIn the present case, though we have held that ICID is not discharging any public duty, even otherwise, it is clear that the impugned action does not involve public law element and no public law rights have accrued in favour of the appellant which are infringed. The service conditions of the appellant are not governed in the same manner as was the position in Anadi Mukta Sadguru (supra)