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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