Del HC | Goods & Services of PSUs are all, to one extent or other, “essential”; MHA order doesn’t contemplate complete closure of PSUs in view of lockdown

Delhi High Court: A Division Bench of D.N. Patel, CJ and C. Harishankar, J., addressed a petition wherein mandamus has been sought to shut the Public Sector Undertakings/Public Enterprises in view of the COVID-19 lockdown.  

Petitioner states that by allowing their offices to function, public sector enterprises engaged in “non-essential goods and services” such as Steel Authority of India (SAIL), National Buildings Construction Corporation (India) Ltd (NBCC), Engineers India Ltd (EIL), Indian Railways Construction International Ltd (IRCON) and the Rail India Technical and Economic Service (RITES), have breached  the Ministry of Home Affairs Order dated 15-04-2020.

Thus, in view of the breach, petitioner sought criminal proceedings to be initiated for the heads of such Public Enterprises/Government Companies.

Petitioner states that such disobedience by PSUs of lockdown directives issued by Centre could not be tolerated for an instant.

Adding to his submissions he stated that PSUs which operate with a motive to profit and are purely commercial enterprises could not be treated as “offices under the control of” the Government so as to be entitled to the benefit of Clause 18 (ii) of the MHA Order dated 15-04-2020.

The “control” exercised, by the Government, over such undertakings, was merely owing to the majority Governmental shareholding therein.

Bench on perusal of the submissions stated that,

It is a matter of public knowledge that the decision, regarding the establishments, offices and enterprises, which ought to be extended some relaxation, from the rigour of the lockdown, is a decision taken after days of deliberation, involving pan-India consultations at the highest levels of the Central government as well as the governments of the States and UTs, aimed at safeguarding and promoting national interest, irrespective of considerations of caste, creed or political affiliations.

“…continuing to exercise judicial vigil over the acts of the executive, Courts have, in times such as these, necessarily to take care that, in doing so, they do not rock the boat, ending up doing more harm than good.

Bench on referring to the Office Memorandum dated 16th April, 2020 issued by DPE wherein it was requested that PSUs be instructed to comply with MHA Order dated 15th April, 2020, stated that in Court’s opinion the MHA order did not contemplate complete closure of all PSUs.

further the Bench added to its opinion with regard to interpretation of the “offices under control” of government stated that,

“…while interpreting Clause 18 ii) of the guidelines dated 15th April, 2020. Governmental control, over their affairs, unquestionably exists and that, in our view, is enough, for PSUs to regard themselves as officers under the control of the Government.”

The fact that PSUs named in the present petition are engaged in production of goods & services that impact the lives of citizens cannot be ignored.

In the exercise of the power of judicial review vested with the Court, it is not permissible for the Court to rewrite the MHA issued guidelines by introducing any consideration of the “essential” or non-essential” nature of services.

“…goods produced, and services rendered, by public Sector undertakings are all, to one extent or the other, “essential.”

It is also to be noted that allowing of “select additional activities” is intended “to mitigate the hardship to the “public”.

Bench also observed that

“It is entirely within the realm of the executive, seized with the crisis and the necessity of tiding over it in the best possible manner, to take a decision regarding the establishments which may be permitted to function, and to the extent thereof.”

Thus, any hyper-legalistic interpretation of the various Clauses in the Guidelines issued by the Central Government to tide over the COVID-19 crisis, would be fundamentally misconceived.

Hence, in the above-view petition stands dismissed. [Anil K. Aggarwal v. Union of India, 2020 SCC OnLine Del 576, decided on 01-05-2020]

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