PSUs Qualify For Exemption Granted to Govt Offices In MHA Guidelines: Delhi HC Dismisses Plea Seeking Shutting Down of PSUs During the Lockdown [Read Order]

While providing purposive interpretation to the MHA Guidelines issued on April 15, the Division Bench of Chief Justice DN Patel and Justice Hari Shankar noted that as PSUs and government companies have a certain level of government control, they will qualify for directions laid down for partial functioning of the Government Ministries and Departments.

The order has come in a PIL filed by Advocate Anil K Aggarwal seeking the following reliefs:

1. Issuance of mandamus to Union of India to strictly enforce MHA guidelines dated April 15, and shut down offices of PSUs and Government Companies that are dealing with non-essential services
2. Issuance of navana mandamus to the concerned Ministries/Departments to trace all the PSUs and Government Companies, which deal with non essential goods as services, which are keeping their offices open, and conduct departmental inquiry against the Heads and Board Members of these companies. Thereafter, lodge an FIR against those Heads/Board Members under section 58 of the Disaster Management Act

The primary argument of the Petitioner was that the April 15 guidelines had only exempted offices of the government ministries and departments from the lockdown. Only the offices belonging to government ministries and departments are allowed to function, with officers of Deputy Secretary and above coming to offices.

As per the judgments of the Supreme Court in AK Bindal v. Union of India, and Mohd Hadi Raja v. State of Bihar, the Petitioner argued, the offices of PSUs and Government Companies can't be included in the exemptions given to Ministries/Departments, as these PSUs are not controlled by the government.

Countering these claims, Mr Gudipati G Kashyap, who appeared for the PSUs, informed the court that an OM was issued by the Department of Public Enterprises, which had directed the PSUs to comply with the MHA order dated April 15.

Mr Kashyap further submitted that the PSUs, such as the NBCC, were under the control of their nodal/parent Ministries – in the case of the NBCC, the Ministry of Housing and Urban Affairs – and, therefore, had to ensure 100% attendance of all officers, who were equivalent to the rank of Deputy Secretary, in the Central Government, and above.

Before going into the merits of the submissions, the Bench headed by the Chief Justice highlighted that:

'The measures, which the government authorities have, assiduously, put into place, to tackle the crisis, could not be treated as either foreseeable or predictable, in any manner. The flip side of the coin is, unfortunately, imminent economic regression, and, in national and public interest, the Government is also committed to ensuring that the economic edifice of the country does not fall to the ground. A fine, and nice, balance is, therefore, to be struck, by the executive, in safeguarding the concerns of health and economy, without compromising on either, to any extent. The clamping down, on the citizenry, of lockdown, and the simultaneous relaxation, of the rigour of the lockdown, in respect of certain offices and enterprises, is an effort at maintaining such a delicate balance.'

After this, the court observed that the very fact that the said Office Memorandum of DPE requested that PSUs be instructed to comply with the MHA Order dated 15th April, is a pointer, to some extent, to the fact that the said Order did not contemplate complete closure of all PSUs.

While perusing the judgements cited by the Petitioner, the court noted that the reason for the existence of control, or the source to which such control owes its origin, is entirely irrelevant, while interpreting Clause 18 (ii) of the guidelines dated 15th April, 2020. Governmental control, over the affairs of PSUs, unquestionably exists and that, in court's view, is enough for PSUs to regard themselves as officers under the control of the Government.

The court further highlighted that it is not within the powers of the court to determine what are essential and non essential services, and use such interpretation to rewrite the guidelines issued by the MHA.

The court observed that:

'It cannot be said that there is no intelligible differentia, between the categories of economic establishments and industries, excepted, by the Guidelines dated 15th April, 2020, from the rigour of the lockdown, and other establishments run by private individuals. Neither can this Court be a signatory to any declaration that every establishments should be permitted to operate, during the currency of the COVID-19 pandemic. 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. Any expression of opinion, by the judiciary, with respect thereto, is fraught with serious and debilitating consequences.'

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