IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 6426/2012

SUPER BAZAR KARAMCHARI HITAISHI SANGATAN ..... Petitioner Through: Mr.Ravindra S. Garia, Adv.

Versus

THE COOPERATIVE STORES LTD SUPER BAZAR ..... Respondent Through: Mr. Sandeep Sethi, Sr. Advocate and Mr. Sunil Gupta, Sr.Advocate with Mr.Ankur Mody and Ms.Prerna Mehta, Advocates for R-1 and 2. Ms.Monica Garg and Ms.Shilpa Garg, Advocates for R-3. Ms. Sweety Manchanda, Advocate for resp. No. 4.

CORAM:

HON'BLE MR. JUSTICE SURESH KAIT ORDER 23.11.2012

W.P.(C) 6426/2012 and CM No. 17091/2012 (for stay) 1. Vide the instant petition, the petitioner seeks quashing of order dated 5th October, 2012 issued by the respondent No.1. 2. This Court issued notice in the instant petition vide order dated 9th October, 2012 and in CM No. 17091/2012 (application for stay), the operation of the order dated 5th October, 2012 was directed to be stayed till the next date of hearing. Thereafter, the matter was directed to be listed on 2nd November, 2012. 3. The respondents challenged the same vide LPA No. 698/2012, and the order passed by this Court was set aside by the Division Bench of this Court vide order dated 16th October, 2012. 4. Thereafter, the petitioner approached the Supreme Court by way of Special Leave Petition (C) No. 35253/2012, wherein vide order dated 23rd October, 2012, the Apex Court opined as under:?We are not inclined to entertain this petition. The petition is dismissed accordingly. However, in view of the directions issued by the Division Bench, it shall be open to the parties to approach the learned Single Judge and the learned Single Judge shall not be influenced by any observations made by any court. Learned counsel for the respondentscaveators may file reply within one week from today and if no reply is filed, the learned Single Judge may proceed without giving any further time to file the reply.

Copy of the order be given Dasti.?

5. Thereafter, the instant petition was listed before this Court on

9th November, 2012, heard in part and fixed for further arguments for today. 6. Mr. Sunil Gupta, learned senior counsel appearing for respondent Nos. 1 and 2 has raised the preliminary objections that the respondent is not a public body. The respondent is a private cooperative society and not a Government or public body as the respondent has redeemed the Government equity by repatriating a sum of Rs. 1.16 crores to the Government of India, Ministry of Consumer Affairs. The Government of India does not own any share in the respondent society and no financial assistance is being provided by the Government of India, therefore, no government nominee can be appointed as Director on the Board of respondent society vide Section 48 of Multi State Cooperative Societies Act, 2002. Therefore, the legality and validity of the notice dated 5th October, 2012 cannot be assailed in a writ proceeding. 7. Learned counsel further submitted that the matter pertaining to revival of Super Bazar is constantly being supervised by the Hon?ble Supreme Court in SLP (C) No. 8398-8399/2005. It is a matter of record that even the orders dated 7th May, 2008 and 26th February, 2009 were passed by the Supreme Court under Article 142 of the Constitution of India wherein the petitioner?s bid for revival of Super Bazar was accepted, therefore, if the petitioner herein has any grievance with the terms and conditions, subject to which the bid was accepted by the Supreme Court, then such a grievance ought to be raised only before the Supreme Court by moving an appropriate application. 8. It is submitted that the impugned notice dated 5th October, 2012 is the direct outcome/fall out of the undertaking of the respondent No. 2 given to the Evaluation Committee and relying on which the Supreme Court passed its order dated 26th February, 2009 under Article 142 of the Constitution of India. 9. Learned counsel further submitted that Article 144 mandates that all the authorities, civil and judicial, shall act in aid of the Supreme Court. 10. Mr. Sunil Gupta, learned senior counsel has informed this Court that the petitioner herein has filed IA Nos. 84-86 titled as Super Bazar Karamchari Hiteshi Sangthan (Regd.) and Anr. Vs. Shri Ramesh Chander Agarwal and Ors. and in the matter of SLP (C) Nos. 8398-8399 and 12415 of 2005 titled as Super Bazar Karamchari Dalit Sangh and Ors. vs. Union of India and Ors. In the said application, in para 17, it is stated as

under:?17. That even as per the report of the evaluation committed in criterion number 6 relating to protection of workers. In the assessment, it has been recorded as follows:?the committee has noted that both the bidders have undertaken not to retrench the services of the Super Bazar employees, at least for three years after its revival.? It was also recorded that:?both the parties have also recognized that the employees will continue to be governed by the service conditions of Super Bazar.?

11. It is further stated that in the notice dated 5th October, 2012, it has not been pointed out that for violation of which of the Super Bazar?s service conditions, the impugned action has been taken. Even otherwise, in the assessment of the Evaluation Committee, it was specifically recorded that there would be no question of retrenchment of the services of the Super Bazar employees at least for three years after its revival. It means that first revival process had to be completed. The revival scheme was required to be submitted before the Hon?ble Supreme Court. Such a revival scheme ought to have been approved by the Hon?ble Supreme Court. Only thereafter it could be said that the revival of Super Bazar has taken place, and only thereafter there could be any question of retrenchment of the workers and that also at least after three years and that also in accordance with the Service Rules and Conditions of Super Bazar and the provisions of the Industrial Disputes Act. Therefore, the contents of the notice are self defeating and the said action is totally arbitrary, illegal, in violation of the orders of the Hon?ble Supreme Court, also in violation of the report of Evaluation Committee and also in violation of the provisions of the Industrial Disputes Act, 1947. Nevertheless, the notice is liable to be withdrawn. 12. The prayer made in the aforesaid application is as under:?In the interest of justice, it is most respectfully prayed that this Hon?ble Court may be pleased to initiate contempt proceedings against the respondents for violating the directions of the Hon?ble Supreme Court as contained in the orders dated 07.05.2008 and 26.02.2009 in SLP (C) NO.

8398-99/2005 and 12415/2005 and order dated 13.08.2010 in IA No. 84-86 and other directions, and for issuing the notice dated 5th October, 2012, by respondent nos. 1 and 2 and for non-compliance of the orders passed by the Central Registrar inter alia dated 19th July, 2011 and 6th March, 2012 and punish them for committing the contempt of the orders of this Hon?ble Court; the respondent contemnors nos. 1 and 2 should further be directed to withdraw the notice dated 5th October, 2012 and comply with all the directions of the Hon?ble Supreme Court and the directions given by the Central Registrar from time to time and may further grant any other relief which this Hon?ble Court may deem fit and proper in the facts and circumstances of the case.?

13. Mr.Gupta, learned senior counsel further submits that in addition to the above, the Central Registrar of Cooperative Societies filed an IA for the following directions:a) The aforesaid developments and present position regarding revival of Super Bazar is brought to the notice of Hon?ble Suprme Court for issue of appropriate directions, in the matter.

b) To direct Super Bazar to comply the directions of CRCS fully and in a time bound manner failing which CRCS shall be free to take further action under the provisions of MSCS Act, 2002.

c) As per Note under entry No.24 of the GOI, allocation of Business Rules of the Department of Agriculture and Cooperation, the Ministries concerned are responsible for Co-operatives in the respective fields. As the CRCS has been assigned regulatory functions of all the Multi State Cooperative Societies (MSCS) registered under the MSCS Act, 2002 in different sectors of the economy, it is practically very difficult for CRCS to closely monitor revival process of Super Bazar. The concerned administrative Departments of the Central Govt. are better placed and responsible as per GOI allocation of business rules to handle the administrative matters control. It is most respectfully prayed that the responsibility of monitoring the revival process of Super Bazar may be entrusted to the Department of Consumer Affairs which is the

administrative Department for Super Bazar.?

14. By considering both the IAs mentioned above, vide its order dated 2.11.2012, the Supreme Court passed the following order:?Learned counsel on either side submitted that few interlocutory applications for intervention, clarification of Court?s orders and directions as well as two sets of contempt petitions have been filed in which alleged contemnors namely Ramesh Chandra Aggarwal and others and the non-applicants are represented through the respective counsel.

Let notice along with copies of I.As and contempt petitions be served upon the learned counsel appearing for non-applicants and alleged contemnors, who will file their respective reply within six weeks. Copy be also served upon the official liquidator.

List on 22.1.2012 (NMD).?

15. Learned counsel submits that in the aforesaid IA filed, the petitioners herein sought directions to withdraw the notice dated 5th October, 2012 and comply with the directions of the Hon?ble Supreme Court and the directions given by the Central Registrar from time to time and grant relief which may be deemed fit and proper in the facts and circumstances of the case. 16. He submits that by issuing the notice vide order dated 2nd November, 2012,on the impugned notice dated 5th October, 2012 the matter is seized by the Supreme Court and if the Supreme Court came to the conclusion that the order dated 5th October, 2012 is wrong then automatically the relief sought by the petitioners in the present petition would be satisfied. 17. Mr.Ravinder S. Garia, learned counsel appearing on behalf of the petitioner has disputed the IA mentioned above being filed by the petitioner and submits that merely issuance of notice by the Supreme

Court will not take away the power of this Court under Article 226 of the Constitution of India, therefore, the instant petition may be adjudicated by this Court. Moreover, the parties will lose the right of appeal before the Larger bench or the higher Court. 18. Counsel for the petitioners have relied upon the judgment of the Apex Court in the case of P.N. Kumar and ors. vs. M.C.D. reported in 1987 4 SCC 607 wherein it has held as under:?2. We are of the view that this petition should be disposed of without expressing any opinion on the merits of the case reserving liberty to the petitioners to file a petition, if so advised, before the High Court under Article 226 of the Constitution. We accordingly dispose of this petition for the following reasons: 1. The scope of the powers of the High Courts under Article 226 of the Constitution is wider than the scope of the powers of this Court under Article 32 of the Constitution 2. The relief prayed for in the petition is one which may be granted by the High Court and any of the parties who is dissatisfied with the judgment of the High Court can approach this Court by way of an appeal. The fact that some case involving the very same point of law is pending in this Court is no ground to entertain a petition directly by- passing the High Court. 3. If the parties get relief at the High Court, they need not come here and to that extent the burden on this Court is reduced. 4. The hearing of the case at the level of the High Court is more convenient from several angles and will be cheaper to the parties. It saves lot of time too. It will be easier for the clients to give instructions to their lawyers. 5. Our High Courts are High Courts. Each High Court has its own high traditions. They have judges of eminence who have initiative, necessary skills and enthusiasm. Their capacity should be harnessed to deal with every type of case arising from their respective areas, which they are competent to dispose of. 6. Every High Court Bar has also its high traditions. There are eminent lawyers practising in the High Courts with wide experience in handling

different kinds of cases, both original and appellate. They are fully aware of the history of every legislation in their States. Their services should be made available to the litigants in the respective States 7. This Court has no time today even to dispose of cases which have to be decided by it alone and by no other authority. Large number of cases are pending from 10 to 15 years. Even if no new case is filed in this Court hereafter, with the present strength of Judges it may take more than 15 years to dispose of all the pending cases. 8. If the cases which can be filed in the High Courts are filed in the High Court and not in this Court this Court's task of acting as original court which is a time consuming process can be avoided and this Court will also have the benefit of the decision of the High Court when it deals with an appeal filed against such decision. 9. If cases which may be filed in the High Courts are filed in this Court it would affect the initiative of the High Courts. We should preserve the dignity, majesty and efficiency of the High Courts. The taking-over by this Court of the work which the High Courts can handle may undermine the capacity and efficiency of the High Courts and that should therefore be avoided. 10. Lastly, the time saved by this Court by not entertaining the cases which may be filed before the High Courts can be utilised to dispose of old matters in which parties are crying for relief.?

19. Learned counsel further submits that when the Supreme Court issued notice vide order dated 2nd November, 2012, Mr.Sunil Gupta, learned senior counsel of the respondent was also present and he never informed the Court that the matter has already been seized with the High Court of Delhi. 20. Mr.Sunil Gupta, senior counsel submitted in rebuttal that several counsels including Mr.Mohit Chaudhary, who is appearing in W.P. (C) No.6897/2012 was also present before the Hon?ble Supreme Court and he also did not point out that the notice dated 5th October, 2012 is under challenge before the High Court of Delhi in the present case. 21. I find force in the submissions of learned counsel for the petitioners that this Court has power under Article 226 of the

Constitution of India to adjudicate this petition and the interim applications. However, I am of the view that the total workers are around 1000 and their services have been terminated vide order dated 5th October, 2012 and the petitioners by way of IA challenged the same before the Supreme Court wherein vide order dated 2nd November, 2012 notice has been issued and the matter is listed on 22nd January, 2013. 22. The petitioners are apprehending that the counsel appearing on behalf of the respondent may take objections before the Supreme Court that matter is pending before the High Court and the same impugned order is under challenge. 23. Mr.Sunil Gupta, learned senior counsel has stated at Bar and clarified that he will be rather happy if this issue is finally decided by the Supreme Court by considering all the aspects on behalf of the petitioners and the respondents as well and he will not take any objection thereto. 24. Mr.Mohit Chaudhary, learned counsel appearing for the petitioners in WP (C) No.6897/2012 has submitted that the petitioners have not assailed the order dated 5th October, 2012 before the Supreme Court. 25. On this issue Mr.Sunil Gupta, learned senior counsel has submitted that the petitioners on whose behalf Mr.Mohit Chaudhary is appearing, there is no embargo of their joining the issue before the Supreme Court and the respondents will not take any objection on their moving to the Supreme Court. 26. Admittedly, notice issued in the instant petition by this Court on 9th October, 2012, order passed by the Division Bench of this Court in LPA on 16th October, 2012 and order passed by the Hon?ble Supreme Court in SLP on 23rd October, 2012, as referred above, were all before issuing the notice vide order dated 2nd November, 2012 in IA?s aforementioned. Moreover, the matter is listed before the Hon?ble Supreme Court on 22nd January, 2013. 27. Therefore, I am of the considered view that till the Hon?ble Supreme Court takes its view, the instant petition is adjourned to 12th February, 2013.

SURESH KAIT, J. NOVEMBER 23, 2012 Sd/`ns?/sb W.P.(C) No.6426/2012 Page 1 of 11

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