TMI Blog2003 (2) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... nable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppointment 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. 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 laboratorie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble than that extended to non-Indian officials of the IBRD . 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 (Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anation 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 wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 Industria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Alt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves 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 immuni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... auses (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 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 procee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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