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

O R D E R

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 orderdated 5th October, 2012 issued by the respondent No.1.

2. This Court issued notice in the instant petition vide order dated9th October, 2012 and in CM No. 17091/2012 (application for stay), theoperation of the order dated 5th October, 2012 was directed to be stayedtill the next date of hearing. Thereafter, the matter was directed to belisted on 2nd November, 2012.

3. The respondents challenged the same vide LPA No. 698/2012, and theorder passed by this Court was set aside by the Division Bench of thisCourt 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 23rdOctober, 2012, the Apex Court opined as under:-

?We are not inclined to entertain this petition. The petition isdismissed accordingly. However, in view of the directions issued by theDivision Bench, it shall be open to the parties to approach the learnedSingle Judge and the learned Single Judge shall not be influenced by anyobservations made by any court. Learned counsel for the respondents-caveators may file reply within one week from today and if no reply isfiled, the learned Single Judge may proceed without giving any furthertime 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 fortoday.

6. Mr. Sunil Gupta, learned senior counsel appearing for respondentNos. 1 and 2 has raised the preliminary objections that the respondent isnot a public body. The respondent is a private cooperative society andnot a Government or public body as the respondent has redeemed theGovernment equity by repatriating a sum of Rs. 1.16 crores to theGovernment of India, Ministry of Consumer Affairs. The Government ofIndia does not own any share in the respondent society and no financialassistance is being provided by the Government of India, therefore, nogovernment nominee can be appointed as Director on the Board ofrespondent society vide Section 48 of Multi State Cooperative SocietiesAct, 2002. Therefore, the legality and validity of the notice dated 5thOctober, 2012 cannot be assailed in a writ proceeding.

7. Learned counsel further submitted that the matter pertaining torevival of Super Bazar is constantly being supervised by the Hon?bleSupreme Court in SLP (C) No. 8398-8399/2005. It is a matter of recordthat even the orders dated 7th May, 2008 and 26th February, 2009 werepassed by the Supreme Court under Article 142 of the Constitution ofIndia wherein the petitioner?s bid for revival of Super Bazar wasaccepted, therefore, if the petitioner herein has any grievance with theterms and conditions, subject to which the bid was accepted by theSupreme Court, then such a grievance ought to be raised only before theSupreme Court by moving an appropriate application.

8. It is submitted that the impugned notice dated 5th October, 2012 isthe direct outcome/fall out of the undertaking of the respondent No. 2given to the Evaluation Committee and relying on which the Supreme Courtpassed its order dated 26th February, 2009 under Article 142 of theConstitution of India.

9. Learned counsel further submitted that Article 144 mandates that all the authorities, civil and judicial, shall act in aid of the SupremeCourt.

10. Mr. Sunil Gupta, learned senior counsel has informed this Courtthat the petitioner herein has filed IA Nos. 84-86 titled as Super BazarKaramchari Hiteshi Sangthan (Regd.) and Anr. Vs. Shri Ramesh ChanderAgarwal and Ors. and in the matter of SLP (C) Nos. 8398-8399 and 12415 of2005 titled as Super Bazar Karamchari Dalit Sangh and Ors. vs. Union ofIndia 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 incriterion 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 toretrench the services of the Super Bazar employees, at least for threeyears after its revival.?

It was also recorded that:-

?both the parties have also recognized that the employees willcontinue to be governed by the service conditions of Super Bazar.?

11. It is further stated that in the notice dated 5th October, 2012, ithas not been pointed out that for violation of which of the Super Bazar?sservice conditions, the impugned action has been taken. Even otherwise,in the assessment of the Evaluation Committee, it was specificallyrecorded that there would be no question of retrenchment of the servicesof the Super Bazar employees at least for three years after its revival.It means that first revival process had to be completed. The revivalscheme was required to be submitted before the Hon?ble Supreme Court.Such a revival scheme ought to have been approved by the Hon?ble SupremeCourt. Only thereafter it could be said that the revival of Super Bazarhas taken place, and only thereafter there could be any question ofretrenchment of the workers and that also at least after three years andthat also in accordance with the Service Rules and Conditions of SuperBazar and the provisions of the Industrial Disputes Act. Therefore, thecontents of the notice are self defeating and the said action is totallyarbitrary, illegal, in violation of the orders of the Hon?ble SupremeCourt, also in violation of the report of Evaluation Committee and alsoin 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 thisHon?ble Court may be pleased to initiate contempt proceedings against therespondents for violating the directions of the Hon?ble Supreme Court ascontained 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 bythe Central Registrar inter alia dated 19th July, 2011 and 6th March,2012 and punish them for committing the contempt of the orders of thisHon?ble Court; the respondent contemnors nos. 1 and 2 should further bedirected to withdraw the notice dated 5th October, 2012 and comply withall the directions of the Hon?ble Supreme Court and the directions givenby the Central Registrar from time to time and may further grant anyother relief which this Hon?ble Court may deem fit and proper in thefacts and circumstances of the case.?

13. Mr.Gupta, learned senior counsel further submits that in additionto the above, the Central Registrar of Cooperative Societies filed an IAfor the following directions:-

a) The aforesaid developments and present position regarding revival ofSuper Bazar is brought to the notice of Hon?ble Suprme Court for issue ofappropriate directions, in the matter.

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

c) As per Note under entry No.24 of the GOI, allocation of Business Rulesof the Department of Agriculture and Cooperation, the Ministriesconcerned are responsible for Co-operatives in the respective fields. Asthe CRCS has been assigned regulatory functions of all the Multi StateCooperative Societies (MSCS) registered under the MSCS Act, 2002 indifferent sectors of the economy, it is practically very difficult forCRCS to closely monitor revival process of Super Bazar. The concernedadministrative Departments of the Central Govt. are better placed andresponsible as per GOI allocation of business rules to handle theadministrative matters control. It is most respectfully prayed that theresponsibility of monitoring the revival process of Super Bazar may beentrusted 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 dated2.11.2012, the Supreme Court passed the following order:-

?Learned counsel on either side submitted that few interlocutoryapplications for intervention, clarification of Court?s orders anddirections as well as two sets of contempt petitions have been filed inwhich alleged contemnors namely Ramesh Chandra Aggarwal and others andthe non-applicants are represented through the respective counsel.

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

List on 22.1.2012 (NMD).?

15. Learned counsel submits that in the aforesaid IA filed, thepetitioners herein sought directions to withdraw the notice dated 5thOctober, 2012 and comply with the directions of the Hon?ble SupremeCourt and the directions given by the Central Registrar from time to timeand grant relief which may be deemed fit and proper in the facts andcircumstances of the case.

16. He submits that by issuing the notice vide order dated 2ndNovember, 2012,on the impugned notice dated 5th October, 2012 the matteris seized by the Supreme Court and if the Supreme Court came to theconclusion that the order dated 5th October, 2012 is wrong thenautomatically the relief sought by the petitioners in the presentpetition would be satisfied.

17. Mr.Ravinder S. Garia, learned counsel appearing on behalf of thepetitioner has disputed the IA mentioned above being filed by thepetitioner and submits that merely issuance of notice by the Supreme

Court will not take away the power of this Court under Article 226 of theConstitution of India, therefore, the instant petition may be adjudicatedby this Court. Moreover, the parties will lose the right of appealbefore the Larger bench or the higher Court.

18. Counsel for the petitioners have relied upon the judgment of theApex Court in the case of P.N. Kumar and ors. vs. M.C.D. reported in 19874 SCC 607 wherein it has held as under:-

?2. We are of the view that this petition should be disposed of withoutexpressing any opinion on the merits of the case reserving liberty to thepetitioners to file a petition, if so advised, before the High Courtunder Article 226 of the Constitution. We accordingly dispose of thispetition for the following reasons:

1. The scope of the powers of the High Courts under Article 226 of theConstitution is wider than the scope of the powers of this Court underArticle 32 of the Constitution

2. The relief prayed for in the petition is one which may be granted bythe High Court and any of the parties who is dissatisfied with thejudgment 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- passingthe High Court.

3. If the parties get relief at the High Court, they need not come hereand to that extent the burden on this Court is reduced.

4. The hearing of the case at the level of the High Court is moreconvenient from several angles and will be cheaper to the parties. Itsaves lot of time too. It will be easier for the clients to giveinstructions to their lawyers.

5. Our High Courts are High Courts. Each High Court has its own hightraditions. They have judges of eminence who have initiative, necessaryskills and enthusiasm. Their capacity should be harnessed to deal withevery type of case arising from their respective areas, which they arecompetent to dispose of.

6. Every High Court Bar has also its high traditions. There are eminentlawyers practising in the High Courts with wide experience in handling

different kinds of cases, both original and appellate. They are fullyaware of the history of every legislation in their States. Their servicesshould 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 bedecided by it alone and by no other authority. Large number of cases arepending from 10 to 15 years. Even if no new case is filed in this Courthereafter, with the present strength of Judges it may take more than 15years to dispose of all the pending cases.

8. If the cases which can be filed in the High Courts are filed in theHigh Court and not in this Court this Court's task of acting as originalcourt which is a time consuming process can be avoided and this Courtwill also have the benefit of the decision of the High Court when itdeals with an appeal filed against such decision.

9. If cases which may be filed in the High Courts are filed in this Courtit would affect the initiative of the High Courts. We should preserve thedignity, majesty and efficiency of the High Courts. The taking-over bythis Court of the work which the High Courts can handle may undermine thecapacity and efficiency of the High Courts and that should therefore beavoided.

10. Lastly, the time saved by this Court by not entertaining the caseswhich may be filed before the High Courts can be utilised to dispose ofold matters in which parties are crying for relief.?

19. Learned counsel further submits that when the Supreme Court issuednotice vide order dated 2nd November, 2012, Mr.Sunil Gupta, learnedsenior counsel of the respondent was also present and he never informedthe Court that the matter has already been seized with the High Court ofDelhi.

20. Mr.Sunil Gupta, senior counsel submitted in rebuttal that severalcounsels including Mr.Mohit Chaudhary, who is appearing in W.P. (C)No.6897/2012 was also present before the Hon?ble Supreme Court and healso did not point out that the notice dated 5th October, 2012 is underchallenge before the High Court of Delhi in the present case.

21. I find force in the submissions of learned counsel for thepetitioners that this Court has power under Article 226 of the

Constitution of India to adjudicate this petition and the interimapplications. However, I am of the view that the total workers arearound 1000 and their services have been terminated vide order dated 5thOctober, 2012 and the petitioners by way of IA challenged the same beforethe Supreme Court wherein vide order dated 2nd November, 2012 notice hasbeen issued and the matter is listed on 22nd January, 2013.

22. The petitioners are apprehending that the counsel appearing onbehalf of the respondent may take objections before the Supreme Courtthat matter is pending before the High Court and the same impugned orderis under challenge.

23. Mr.Sunil Gupta, learned senior counsel has stated at Bar andclarified that he will be rather happy if this issue is finally decidedby the Supreme Court by considering all the aspects on behalf of thepetitioners and the respondents as well and he will not take anyobjection thereto.

24. Mr.Mohit Chaudhary, learned counsel appearing for the petitionersin WP (C) No.6897/2012 has submitted that the petitioners have notassailed the order dated 5th October, 2012 before the Supreme Court.

25. On this issue Mr.Sunil Gupta, learned senior counsel has submittedthat the petitioners on whose behalf Mr.Mohit Chaudhary is appearing,there is no embargo of their joining the issue before the Supreme Courtand the respondents will not take any objection on their moving to theSupreme Court.

26. Admittedly, notice issued in the instant petition by this Court on9th October, 2012, order passed by the Division Bench of this Court inLPA on 16th October, 2012 and order passed by the Hon?ble Supreme Courtin SLP on 23rd October, 2012, as referred above, were all before issuingthe notice vide order dated 2nd November, 2012 in IA?s aforementioned.Moreover, the matter is listed before the Hon?ble Supreme Court on 22ndJanuary, 2013.

27. Therefore, I am of the considered view that till the Hon?bleSupreme Court takes its view, the instant petition is adjourned to 12thFebruary, 2013.

SURESH KAIT, J.

NOVEMBER 23, 2012

Sd/`ns?/sb

W.P.(C) No.6426/2012 Page 1 of 11

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