We have given careful consideration to the submissions. The
first respondent urged that it is necessary for the legislature
to introduce a law dealing with "Liability in Tort". On the basis
of the prayer made by the first respondent, a direction has been issued to the
Central Government to consider introducing of a bill on the subject, and
outer limit of six months has been fixed by the High Court. As far as the law of torts and liability
thereunder of the State is concerned, the law regarding the liability of the
State and individuals has been gradually evolved by100 Courts. Some aspects of it find
place in statutes already in force. It is a debatable issue whether the
law120 of torts and especially
liabilities under the law of torts should be codified by a legislation.
A writ court cannot direct the Government to consider introducing a particular
bill before the House of Legislature within a time frame. Therefore, the first
direction issued under the impugned judgment was unwarranted. As regards the 2nd direction, it must be
remembered that when a litigant seeks a writ of mandamus, he must show a
right existing in his favour and the corresponding obligation200 of the State to ensure that the litigant
is able to exercise the said right. There is no right vested in
the applicant to claim that the Law Commission set up by the Central
Government should be given constitutional or240 statutory status. Twenty-one Law
Commissions have already functioned and submitted reports. Whether Law
Commission should be given a status under the Constitution or under a Statute
is a major policy decision to be taken by the Central Government. It is only
the Central Government which can take a call on this issue. Therefore, the
2nd direction was uncalled for. As300 regards the 3rd direction, the prayer was premature as when the writ petition
was filed, 22nd Law Commission was not even constituted. Now, it has been
constituted under the notification dated 9th November 2022. We have
perused the notification dated 21st February 2020 under which the
Central Government decided to constitute 22nd360 Law Commission. We have carefully
perused the Terms of Reference of the 22nd Law Commission.
The Terms of Reference are very wide which expect the Law
Commission to make recommendations on various important aspects such as identification
of obsolete400 laws, and identification of laws which are not in harmony
with the existing climate of economic liberalisation. Another function is to
suggest amendments to the existing laws. One of the important functions is to
examine the laws which affect the poor, and to carry out post audit for socio-economic
legislations. Another duty entrusted to the Law Commission is to revise
Central Acts of general importance so as to simplify them and remove anomalies,
ambiguities and inequities. Clause 9 of the480 said notification provides that
the Commission may develop a partnership network with reputed Law Universities
and policy research institutions in500 the country and abroad.
Clause 10 empowers the Commission to engage legal consultants for specific
projects depending on the nature and urgency. There cannot be any doubt that if
such vast functions are to be discharged by the 22nd Law Commission, it will
require adequate monetary support in the form of grants. Unless adequate
funds are provided, the Law Commission will not be able to discharge its
functions. As and when the requisition is sent by the 22nd Law Commission for
requisitioning funds, the Central Government will have to consider the
said proposal and ensure that the Law600 Commission does not become ineffective on account of
its failure to sanction adequate funds.
As regards the 5th direction, whether a nodal
officer should be appointed or not, is a matter to be decided by the
Central Government. The Court cannot compel the Central Government to appoint a
nodal officer. All the departments of the Government have
adequate notice of the judgments of Constitutional Courts in which
recommendations are made for the amendment of any legislation. Therefore, the
5th direction is unwarranted. The law regarding power of the writ court to
issue a mandate to the legislature to legislate is700 well settled. No Constitutional
Court can issue a writ of mandamus to a legislature to enact a law on a720 particular subject in a particular
manner. The Court may, at the highest, record its opinion or recommendation on
the necessity of either amending the existing law or coming out with a new law.
The law has been laid down in this behalf in several decisions. The only
exception is where the Court finds that unless a rule-making power is
exercised, the legislation cannot be effectively implemented.
Union of India is the appellant
in all these appeals and these appeals are800 directed against the orders of
different Central Administrative Tribunals. The respondents are the
employees of the Unit-Run-Canteens which provide canteen facilities to
the troops at the unit level. Applications before the Central Administrative
Tribunals were filed by these840 employees claiming benefits as regular defence personnel
employees or at least as civilian employees serving under the Ministry of
Defence on the allegation that the Unit-Run- Canteens are part of
the Canteen Stores Department and since the Canteen Stores Department forms a
part of the Government in the Ministry of Defence, there is no reason as
to why900 the Unit-Run-Canteens should not be
held to be a part of Ministry of Defence. On behalf of Union of India, the jurisdiction
of the Tribunal was assailed on the ground that these employees cannot
be held to be the Government employees and consequently the Tribunal did not
have the jurisdiction to entertain the applications and decide the grievances960 of the employees. According to
the Union of India, the Unit-Run-Canteens are operated by the non-public funds
and the expenditure required to run the Unit Canteens is made out of the
profits earned by the canteens itself1000 and, therefore, so far as the personnel serving in such
canteens, there is no relationship of master and servant between the
Government of India and the employees, and consequently the applications before
the Tribunal should be rejected. The Central Administrative Tribunals, however,
at Jodhpur and Bombay took the view that the
Unit-Run-Canteens are the part of Defence establishment and consequently
the holder of a post in the management of such canteen must be held to be
connected with1080 the Defence Services. The Tribunals examined the relevant
provisions made by different personnel providing all pervasive control with the
Ministry1100 of Defence and thus held that there subsists ‘master and servant’
relationship between the employees serving in Unit-Run-Canteens and the
Ministry of Defence and, therefore, the Tribunal retains the jurisdiction to
entertain applications and decide those applications in accordance with law.
The learned senior counsel appearing for the Union of India vehemently contended
before us, that these Unit-Run-Canteens are different from the Canteen Stores
Department and the salary of the employees serving in the Unit-Run-Canteens are
not paid out of the Consolidated Fund of India but a fund created at the
unit level and1200 profit out of sales in Unit and Canteens are utilised for the
payment of salary as well as for creating assets of the canteens.
