Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 1186 (CAL)

Ashim Kumar Sarkar v. Cesc Limited

2011-08-26

DEBASISH KAR GUPTA

body2011
JUDGMENT 1. THIS writ application is directed against an order of reversion dated October 1, 1990 as also an order dated February 23, 1991 passed by the respondent No. 2 terminating the service of the petitioner. 2. AT the very outset a preliminary objection is raised by Mr. Partha Sarathi Sengupta, learned Advocate appearing on behalf of the respondents with regard to the maintainability of this writ application. According to him, the respondent company is not a State Under Article 12 of the Constitution of India. It is also submitted by him that no material is brought on record by the petitioner to show that the CESC Limited is a State under the provisions of Article 12 of the Constitution of India. According to him, it is a private establishment performing some statutory duty in the matter of supply of electricity under the provisions of the Electricity Act, 2003. According to him, violation of any statutory provision in the matter of supply electricity is not under challenge in this writ application. According to him, the terms and conditions of the employees of the respondent company are not guided by any statutory provisions. They are the employees of a private establishment. Therefore, no application under Article 226 of the Constitution of India is maintainable challenging the action on the part of the respondent authority against any disciplinary action taken against its employees. Mr. Sengupta also submits that the allegations made in the supplementary affidavit to this writ application are not admitted by the respondents. 3. MR. Sengupta relies upon the final orders dated March 20, 2003 passed in the matter of Joyram Rabidas v. Calcutta Electric Supply Company Limited (In Re : W.P. No. 3888(W) of 2003) and the final order dated March 15, 2004 passed in W.P. No. 3192(W) of 2004 in support of his above submissions. 4. ON the other hand it is submitted by Mr. Milon Bhattacharjee, learned Advocate appearing on behalf of the petitioner, that the respondent company is a State within the meaning of Article 12 of the Constitution of India. According to him, the respondent company renders public utility services under the provisions of the Electricity Act, 2003 and it enjoys monopoly status in respect of certain area within the State of West Bengal. According to him, the respondent company is a licencee under the West Bengal State Electricity Board. According to him, the respondent company renders public utility services under the provisions of the Electricity Act, 2003 and it enjoys monopoly status in respect of certain area within the State of West Bengal. According to him, the respondent company is a licencee under the West Bengal State Electricity Board. It is engaged in generating and selling electricity. Drawing the attention of this Court towards supplementary affidavit to the writ application filed by the petitioner it is submitted by him that the respondent company received loan and subsidies from Central and State Governments. It is also submitted by him that a considerable amount of share capital has been invested by the State Government in the respondent company. According to him, there is a deep and pervasive control of the State of West Bengal over the respondent company, It is also submitted by him that the Memorandum of Association and Articles of Association all have not been produced by the respondent company before this Court to enable this Court to examine the question of deep and pervasive control of the State over the respondent company. Mr. Bhattacharjee relies upon the decisions of Ajay Hasia v. Khalid Mujib Sehravardi and Ors. reported in AIR 1981 Supreme Court,487; Pradip Kumar Biswas v. Indian Institute of Chemical Biology and Ors. reported in (2002)5, Supreme Court Cases, 111; Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V. R. Rudani and Ors. reported in AIR 1989 Supreme Court, 1607 ; Mahabir Auto Stores and Ors. v. Indian Oil Corporation and Ors. reported in (1990)3 Supreme Court Cases, 752; Zee Telefilms Limited v. Union of India reported in (2005)4, Supreme Court Cases, 649 and Kelvin Jute Company Limited v. Krishna Kumar Agarwal and Ors. reported in (2006)2 Cal HN 358 in support of his above submission. 5. I have heard the learned Counsel appearing for the respective parties at length and I have given my anxious consideration to the facts and circumstances of this case on the basis of the materials on record. It is true that the respondent company namely, CESC Limited performs public utility services under the Electricity Act, 2003 in distributing electricity in some of the urban areas in the State of West Bengal. It is true that the respondent company namely, CESC Limited performs public utility services under the Electricity Act, 2003 in distributing electricity in some of the urban areas in the State of West Bengal. In order to examine the claim of the petitioner that it is a State within the meaning of Article 12 of the Constitution of India. The settle principles of law as laid down by the seven Judges' Bench of the Hon'ble Supreme Court of India in the matter of P.K Biswas (supra) are quoted below :- "40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be - whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, if would not serve to make the body a State." 6. IN view of the above settle principles of law the cumulative facts as established with regard to the control of the Government in respect of finance, functions and administration of an establishment are the guiding factors to arrive at a conclusion with regard to the question of deep and pervasive control on an establishment to decide as to whether the same is a State within the meaning of Article 12 of the Constitution of India. No material is produced before this Court to show that there is contribution of considerable amount of money either by the Central Government or by the State Government towards the share capital of the respondent company. No weightage can be given to the statement made in paragraph 8 of the supplementary affidavit to the writ application with regard to the extent of share capital of Government. No weightage can be given to the statement made in paragraph 8 of the supplementary affidavit to the writ application with regard to the extent of share capital of Government. That apart, it appears from annexures "G" at page 37 of the affidavit -in -opposition filed on behalf of the respondents No. 1, 2, 3 and 4 that the extent of contribution of the Government of West Bengal towards share capital of the respondent company is 0.0049%. 7. NO material is made available on record to show that the respondent company takes every year loan or subsidies from the Central Government or the State Government. 8. NO material is produced before this Court by the petitioner to show that the Board of Directors of the respondent company discharges its administrative function under the control of either the Central Government or the State Government. Upon consideration of the provisions of the Electricity Act, 2003 I find that the State Government exercises it is a regulatory power in the matter of supply of electricity to the consumers of the respondent company in respect of the area for which licences is granted to the respondent company under the above Act. 9. IN view of the above, I do not find that the respondent company is an instrumental of the State. I do not find substance on the submission made on behalf of the petitioner that the respondents are under obligation to prove that the respondent company is not a State within the meaning of under Article 12 of the Constitution of India. IN my opinion, the petitioner is under obligation to establish his case before this Court showing that the respondent company is a State within the meaning of Article 12 of the Constitution of India. 10. WITH regard to the claim of the petitioner that the respondent company is a State within the meaning of Article 12 of the Constitution of India in view of discharging public utility services under the Electricity Act, 2003 I find that it renders public utility services in the matter of supply of electricity. 10. WITH regard to the claim of the petitioner that the respondent company is a State within the meaning of Article 12 of the Constitution of India in view of discharging public utility services under the Electricity Act, 2003 I find that it renders public utility services in the matter of supply of electricity. It is well settled principles of law that when a private body exercise its public functions even if it is not a State the aggrieved person has remedy not only under the ordinary law but also under the Constitution of India by way of a writ petition under Article 226 of the Constitution of India. In the instant Case the matters relating to the condition of services of the employees of the respondent company has nothing to do with discharging of the public functions of the respondent company under the provisions of Electricity Act, 2003. There is no doubt that an application under Article 226 of the Constitution of India is maintainable against the respondent company in the case of its failure to act in accordance with the provisions of the Electricity Act, 2003 in the matter of supply of electricity but it is functioning with regard to the dealing with its employees or their service conditions cannot be a subject-matter of review in an application under Article 226 of the Constitution of India. Reference may be made to the majority view of a Constitution Bench of the Hon'ble Supreme Court of India in the matter of Zee Telefilms Limited and the relevant portions are set out below :- "33. Thus, it is clear that when a private body exercises its public functions even if it is not a State, the aggrieved person has a remedy not only under the ordinary law but also under the Constitution, by way of a writ petition under Article 226. Therefore, merely because a non-governmental body exercises some public duty, that by itself would not suffice to make such body a State for the purpose of Article 12. In the instant case the activities of the Board do not come under the guidelines laid down by this Court in Pradeep Kumar Biswas case hence there is force in the contention of Mr. Venugopal that this petition under Article 32 of the Constitution is not maintainable." 11. I do not find substance in the submissions made by Mr. In the instant case the activities of the Board do not come under the guidelines laid down by this Court in Pradeep Kumar Biswas case hence there is force in the contention of Mr. Venugopal that this petition under Article 32 of the Constitution is not maintainable." 11. I do not find substance in the submissions made by Mr. Bhattacharjee on behalf of the petitioner that the respondent corporation enjoys monopoly in the field of supply of electricity. For proper adjudication of the above claim made on behalf of the petitioner the provisions of Section 14 of the Electricity Act, 2003 are quoted below :- "14. Grant of licence. Bhattacharjee on behalf of the petitioner that the respondent corporation enjoys monopoly in the field of supply of electricity. For proper adjudication of the above claim made on behalf of the petitioner the provisions of Section 14 of the Electricity Act, 2003 are quoted below :- "14. Grant of licence. -The Appropriate Commission may, on an application made to it under section 15, grant a licence to any person- "(a) to transmit electricity as a transmission licensee; of (b) to distribute electricity as a distribution licensee; or (c) to undertake trading in electricity as an electricity trader, in any area as may be specified in the licence : Provided that any person engaged in the business of transmission or supply of electricity under the provisions of the repealed laws or any Act specified in the Schedule on or before the appointed date shall be deemed to be a licensee under this Act for such period as may be stipulated in the licence, clearance or approval granted to him under the repealed laws or such Act specified in the Schedule, and the provisions of the repealed laws or such Act specified in the Schedule in respect of such licence shall apply for a period of one year from the date of commencement of this Act or such earlier period as may be specified, at the request of the licensee, by the Appropriate Commission and thereafter the pro visions of this Act shall apply to such business Provided further that the Central Transmission Utility or the State Transmission Utility shall be deemed to be a transmission licensee under this Act : Provided also that in case an Appropriate Government transmits electricity or distributes electricity or undertakes trading in electricity, whether before or after the commencement of this Act, such Government shall be deemed to be a licensee under this Act, but shall not be required to obtain a licence under this Act : Provided also that the Damodar Valley Corporation, established under sub-section (1) of section 3 of the Damodar Valley Corporation Act, 1948 (14 of 1948), shall be deemed to be a licensee under this Act but shall not be required to obtain a licence under this Act and the provisions of the Damodar Valley Corporation Act, 1948, in so far as they are not inconsistent with the provisions of this Act, shall continue to apply to that Corporation : Provided also that the Government company or the company referred to in sub-section (2) of section 131 of this Act and the company or companies created in pursuance of the Acts specified in the Schedule, shall be deemed to be a licensee under this Act : Provided also that the Appropriate Commission may grant a licence to two or more persons for distribution of electricity through their own distribution system within the same area, subject to the conditions that the applicant for grant of licence within the same area shall, without prejudice to the other conditions or requirements under this Act, comply with the additional requirements [relating to the capital adequacy, creditworthiness, or code of conduct] as may be prescribed by the Central Government, and no such applicant, who complies with all the requirements for grant of licence, shall be refused grant of licence on the ground that there already exists a licensee in the same area for the same purpose : Provided also that in a case where a distribution licensee proposes to undertake distribution of electricity for a specified area within his area of supply through another person, that person shall not he required to obtain any separate licence from the concerned State Commission and such distribution licensee shall be responsible for distribution of electricity in his area of supply : Provided also that where a person intends to generate and distribute electricity in a rural area to be notified by the State Government, such person shall not require any licence for such generation and distribution of electricity, but he shall comply with the measures which may be specified by the Authority under Section 53 Provided also that a distribution licensee shall not require a licence to undertake trading in electricity" 12. UPON consideration of 6th proviso to the above provision I find that the appropriate commission may grant of licence to one or more than one persons for distribution of electricity through their own distribution system within the same area subject to the conditions mentioned therein. With regard to the citations relied on by Mr. Bhattacharjee in support of his submissions I find that the issue of considering of establishment as a State within the meaning of Article 12 of the Constitution of India was decided finally in the matter of P. K. Biswas (supra) and the question of maintainability of the instant writ application is decided on the basis of the above decision. 13. IN view of the discussions and observations made with regard to the maintainability of a writ application against a private establishment with reference to the majority view of the Hon'ble Supreme Court of India in the matter of Zee Telefilms (supra) the decision of Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. (supra) has manner of application in this case. 14. IN view of the distinguishable facts and circumstances of this case the decision of Mahabir Auto (supra) does not help the petitioner in any way. IN view of the observations made in paragraph 41 of the decision of Kelvin Jute Co. Limited (supra), I do not find that the above decision helps the petitioner in any way. In view of the above I find that this writ application is not maintainable and the same is dismissed. 15. THERE will be, however, no order as to costs.