Research › Search › Judgment

Andhra High Court · body

2020 DIGILAW 330 (AP)

G. A. Rama Rao v. State of Andhra Pradesh

2020-05-06

T.RAJANI

body2020
ORDER : 1. This writ petition is the outcome of the grievance of the petitioners with regard to the dismissal order, dated 10.04.2017 issued by the 5th respondent i.e. the General Manager, HR and Administration, International Paper AP Paper Mills Ltd. Rajamundry. 2. The petitioners seek to declare the said dismissal order as void, holding that the punishment is discriminatory, capricious and whimsical and is in violation of Article 14 of the Constitution and also to hold that the domestic enquiry is vitiated. 3. The rival contentions, which raise the issues that need to be resolved in this writ petition, need to be mentioned. 4. The petitioners worked in the 5th respondent-International Paper AP Paper Mills Ltd. Rajahmundry (hereinafter referred to as “Company”), which is a Company situated at Rajahmundry. Pursuant to the Industrial dispute between the ten trade unions operating in the 4th respondent organization, lock out was declared by the management with effect from 11.08.2016 and after the intervention of respondents 1 to 3, there was a settlement under Section 12(3) of the Industrial Disputes Act, 1947, (hereinafter referred to as “the Act”) on 31.08.2016 signed by respondents 4 and 5, i.e. the management and the trade unions, and the same is binding on all the parties to the dispute. In violation of the said agreement, the management issued charge sheet, which is similar to the ones issued to the 33 workers who participated in the Dharna on 03.08.2016, conducted a common domestic enquiry and terminated the services of the petitioners, while awarding lenient punishment of stoppage on one annual increment to the remaining 22 workers based on the findings in the enquiry report and subsequently reducing the punishment of dismissal in respect of seven workers to that of stoppage of one annual increment, though the charge sheet and the enquiry are common to all the 33 workers. The 5th respondent Company convened a meeting on 03.08.2016 with ten trade unions and ten outsider office bearers. 16 worker office bearers representing trade unions, attended for discussion on the grievance of the workers that the management violated the memorandum of understanding dated 23.07.2016 by the management. During discussions, the management became furious, when they were questioned about the injustice done to the employees, and called the security personnel. The other trade union representatives also joined in the Dharna along with 17 other workers. During discussions, the management became furious, when they were questioned about the injustice done to the employees, and called the security personnel. The other trade union representatives also joined in the Dharna along with 17 other workers. The management called the police, on which all the workers representatives vacated the premises. On 09.08.2016, the management communicated suspension orders, dated 08.08.2016, to the 33 workers, who participated in the Dharna. Protesting the suspension, all the workers in the factory stopped attending from work from the A shift of 09.08.2016. The management declared lockout from 11.08.2016 by publishing a notice. Subsequently, the people’s representatives, including the MLA and the Officers of the Labour Department interfered and held conciliation meeting, pursuant to which an agreement was reached on 31.08.2016, agreeing to resume all the workers to duty and to conduct an enquiry through a third party and not to resort to any victimization of the workers and their representatives. The Management conducted a domestic enquiry, violating the said agreement. In the said enquiry, though a common charge sheet was issued to 33 workers, 22 workers were reinstated while the petitioners were not reinstated. Out of the remaining workers, one worker died and the remaining 10 workers were terminated. On further representation, punishment of dismissal in respect of seven workers was set aside by substituting the punishment of stoppage of one increment with effect from 01.07.2017. Questioning the said discriminatory act of the respondents, this writ petition is filed. 5. The respondents 4 and 5 filed counter, raising a preliminary objection with regard to the maintainability of the writ petition, on the ground that a Company incorporated under the Companies Act, 1956 is not amenable to writ jurisdiction as it is not a Government/State or an authority under Article 12 of the Constitution of India. The 4th respondent was earlier known as, the Andhra Pradesh Paper Mills Limited. Its name was changed to International Paper APPM Limited and a fresh certificate of Incorporation was issued by the Registrar of Companies. When Andhra Pradesh Paper Mills Limited was a joint venture company i.e. there was a shareholding to certain extent i.e. about 25% by the State Government. However, in 2003, the Government of Andhra Pradesh divested its share holding, making it completely a private concern. Hence, it does not fall within the purview of Article 12 of the Constitution. When Andhra Pradesh Paper Mills Limited was a joint venture company i.e. there was a shareholding to certain extent i.e. about 25% by the State Government. However, in 2003, the Government of Andhra Pradesh divested its share holding, making it completely a private concern. Hence, it does not fall within the purview of Article 12 of the Constitution. There is no public duty performed by the respondents and hence, a Writ of Mandamus would not lie against it. The further contention is that although the powers conferred on the High Court under Article 226 are very wide, they could not take in within their sweep industrial dispute of the kind in which the dismissal of the workman is raised. The proper recourse is under Section 10 of the Act. On the above grounds, the respondents seek to dismiss the writ petition. 6. Heard Sri. Satya Prasad, learned senior counsel appearing for the petitioners; learned Government Pleader for respondents 1 to 3 and Sri. Challa Venkat, learned counsel appearing for respondents 4 and 5. 7. Firstly, the preliminary objection raised by the respondents’ counsel with regard to the maintainability of the writ petition, can be taken up for adjudication. Article 12 of the Constitution of India, defines the term “State” as including the Government and Parliament of India and the Government and the legislature of each of the States and all local or other authorities within the territory of India or under the control of Government of India. Now, whether a Company falls within any of the organs defined under Article 12 is the preliminary question that this writ petition raises. 8. Both the counsel relied on judgments, in support of their contentions. The ruling reported in A.P. Paper Mills Ltd. vs. Ch. Seetharamaiah, 2003 (3) LLN 953 of the erstwhile High Court of Andhra Pradesh is relied upon by both the counsel. In the said ruling, the Court, except observing that what is important is not the formation of the body but what is relevant and important is the nature or duty imposed on that body or person the duty involved must be a public duty and there must be a public law element involved imposing an obligation on that person, said nothing, which helps the petitioners. The Bench concluded that the appellant company therein, which is the same company which filed this writ petition, is not an instrumentality or agency of the State Government and therefore, it does not come under the meaning of expression, other authorities. It was also held that the appellant company therein is not entrusted with any statutory duties and as such, it does not discharge any public law functions. In the said ruling, the court referred to the judgment of the Supreme Court in V.S.T. Industries Ltd. vs. V.S.T. Indutries Workers Union, 2001 (1) LLN 786 wherein the Supreme Court approvingly referred to the propositions summarized as to when the activities of the private bodies are subject to the standard of public law in De Smith Woolf and Jowells Judicial Review of Administrative Action, 5th Edition. Para 7 of the said judgment was extracted, which is as under: “(1) The test of whether a body is performing a public function, and is hence amenable to judicial review, may not depend upon the source of its power or whether the body is ostensibly a "public" or "private" body. (2) The principles of judicial review, prima-facie, govern the activities of bodies performing public functions. (3) However, not all decisions taken by bodies in the course of their public functions are the subject matter of judicial review. In the following two situations judicial review will not normally be appropriate even though the body may be performing a public function: (a) Where some other branch of the law more appropriately governs the dispute between the parties. In such a case, that branch of the law and its remedies should and normally will be applied. (b) Whether there is a contract between the litigants. In such a case the express or implied terms of the agreement should normally govern the matter. This reflects the normal approach of English law, namely, that the terms of a contract will normally govern the transaction, or other relationship between the parties, rather than the general law. (b) Whether there is a contract between the litigants. In such a case the express or implied terms of the agreement should normally govern the matter. This reflects the normal approach of English law, namely, that the terms of a contract will normally govern the transaction, or other relationship between the parties, rather than the general law. Thus, where a special method of resolving disputes (such as arbitration or resolution by private or domestic tribunals) has been agreed upon by the parties (expressly or by necessary implication), that regime and not judicial review, will normally govern the dispute.” The Judgment of the Supreme Court in Federal Bank Ltd. vs. Sagar Thomas and Others in Appeal (Civil) No. 106 of 2001, held that from the decisions referred in the said judgment, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State Government, (ii) Authority, (iii) Statutory Body, (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function. 9. Admittedly, the 4th respondent does not fall under any of the clauses (i) to (vii). As regards, it falling under clause (viii), as admitted, it has to be seen whether the 4th respondent is a private body discharging a public duty or positive obligation of public nature. This question is already decided in the A.P. Paper Mills Ltd. case (supra). In Federal Bank Ltd. case, the Supreme Court observed that private companies would normally not be amenable to writ jurisdiction under Article 226 of the Constitution. But in certain circumstances, a writ may issue to such private bodies or persons as there may be statutes which need to be complied with by all concerned including the private companies. For example, there are certain legislations like the Industrial Disputes Act, the Minimum Wages Act, the Factories Act or for maintaining proper environment say Air (Prevention and Control of Pollution) Act, 1981 or Water (Prevention and Control of Pollution Act, 1974 etc. For example, there are certain legislations like the Industrial Disputes Act, the Minimum Wages Act, the Factories Act or for maintaining proper environment say Air (Prevention and Control of Pollution) Act, 1981 or Water (Prevention and Control of Pollution Act, 1974 etc. or statues of the like nature which fasten certain duties and responsibilities statutorily upon such private bodies which they are bound to comply with. If they violate such a statutory provision a writ would certainly be issued for compliance of those provisions. For instance, if a private employer dispenses with the service of its employee in violation of the provisions contained under the Industrial Disputes Act, in innumerable cases the High Court interfered and have issued the writ to the private bodies and the companies in that regard. But, it was further held, that the difficulty in issuing the writ may arise where there may not be any noncompliance or violation of any statutory provision by the private body. In this case, there was an enquiry conducted with regard to the petitioners along with other employees and the decision dismissing the petitioners, ensued form the said enquiry. Hence, in order to rule whether such dismissal is proper or not, there is a necessity to reappraise the findings of the enquiry officer. Disputed questions of fact are undoubtedly involved in this case. There is a dispute with regard to the petitioners’ being workman, in the first instance. 10. The dismissal of the petitioners is not in violation of the provisions contained in the Act. It is only on the ground of discrimination that the petitioners knock the doors of this court. It is not the case of the petitioners that the procedure under the Act is violated. Hence, unless there is any apparent violation of the procedure under the Act, a writ cannot lie. 11. As per the above judgment, the first requirement of entertaining the writ petition would be that a private body should be discharging public duty or positive application of public nature by virtue of the judgment in A.P. Paper Mills Ltd. case. The High Court of Hyderabad held that A.P. Paper Mills Ltd. case does not fall within any of the categories enumerated in Federal Bank Limited case supra. 12. The Judgment of the Supreme Court reported in Sudhir Chandra Sarkar vs. Tata Iron and Steel Co. Ltd. 1984 AIR 1064, pertains to an appeal. The High Court of Hyderabad held that A.P. Paper Mills Ltd. case does not fall within any of the categories enumerated in Federal Bank Limited case supra. 12. The Judgment of the Supreme Court reported in Sudhir Chandra Sarkar vs. Tata Iron and Steel Co. Ltd. 1984 AIR 1064, pertains to an appeal. Originally the appellant filed a suit in the court of Subordinate Judge for recovering the amount of gratuity. Then an appeal was filed before the High Court. Thereafter, the appeal came to the Supreme Court. Hence, the said judgment would not be relevant for the issues involved in this lis. The Judgment of the Supreme Court reported in Khardah Co. Ltd. vs. Their Workmen, 1964 AIR 719 is also rendered in an appeal against the award of the Industrial Tribunal. 13. The respondents’ counsel relies on the judgment of the High Court of Delhi reported in Mukul Kumar Shukla vs. Hindustan Times, 2002 (4) LLN 1106 wherein the petitioner therein failed to show that any public law or character is involved in the writ petition. The judgment of the Supreme Court reported in Rae Bareli Kshetriya Gramin Bank vs. Bhola Nath Singh and Others, (1997) SCC (LS) 865 held that judicial review was not akin to adjudication of case on merits as an appellate authority. When no such errors were pointed out nor any finding in that behalf was recorded by High Court, the Supreme Court found fault with the High Court, which examined the evidence, as it was a court of first appeal. The judgment of the Supreme Court reported in K.K. Saksena vs. International Commission on Irrigation and Drainage, (2015) 4 SCC 670 is to the effect that merely because activity of the Institute enured to the benefit of public, it could not be a guiding factor to determine the character of the Institute and bring the same within sweep of ‘public function or public duty’. The judgment also explained the term ‘authority’ used in Article 226 of the Constitution of India and held that it must receive a liberal meaning like the term in Article 12. It was also held that the words “any person or authority” used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. It was also held that the words “any person or authority” used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. 14. There is no dispute in this case, with the submission made by the respondents’ counsel that the 4th respondent is not involved in performing any public duty. By referring to several judgments, the Supreme Court in the above judgment, observed as follows: “38. What follows from a minute and careful reading of the aforesaid judgments of this court is that if a person or authority is a ‘State’ within the meaning of Article 12 of the Constitution, admittedly a writ petition under Article 226 would lie against such a person or body. However, we may add that even in such cases writ would not lie to enforce private law rights. There are catena of judgments on this aspect and it is not necessary to refer to those judgments as that is the basic principle of judicial review of an action under the administrative law. Reason is obvious. Private law is that part of a legal system which is a part of Common Law that involves relationships between individuals, such as law of contract or torts. Therefore, even if writ petition would be maintainable against an authority, which is ‘State’ under Article 12 of the Constitution, before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished form private law.” 15. In The Praga Tools Corporation vs. C.A. Imanual and Others, AIR 1969 SC 1306 , it was held that Company was nonstatutory body and one incorporated under Companies Act. There was neither statutory nor public duty imposed on it by the statute, in respect of which enforcement could be sought, nor was there in its workmen any corresponding legal right for enforcement or any such statutory or public duty. There was neither statutory nor public duty imposed on it by the statute, in respect of which enforcement could be sought, nor was there in its workmen any corresponding legal right for enforcement or any such statutory or public duty. In Basant Kumar Sarkar vs. Eagle Rolling Mills Ltd. AIR 1964 SC 1260 , the Supreme Court held that the powers conferred on the High Court under Article 226 are very wide, but it is not suggested that even these powers can take within their sweep Industrial Disputes of the kind. Saying so, the court held that the proper remedy available to the appellants is to ventilate their grievances by taking recourse to Section 10 of the. Act. 16. Hence, the legal position, which emerges from reading of the above judgments, is that the duties performed by the Institution would decide whether it falls within the definition of other authorities under Article 12. The Institution should necessarily discharge public law functions and if there are no public law functions involved, the power of judicial review under Article 226 cannot be exercised. The petitioners’ counsel contends that the action of the 4th respondent amounts to unfair labour practice and hence, the writ court has jurisdiction to entertain the writ petition. But this court is unable to accept the said contention, as the 4th respondent does not qualify as other authority under Article 12 of the Constitution. 17. Even the fundamental rights, which are violated, can be enforced only if the authority/ body can be treated as State within the meaning of Article 12 of the Constitution of India. Hence, the pre-condition for enforcement of any right, be the violation consequent to the unfair labour practice, is that the authority, should fall within the meaning of the ‘State’. Since the 4th respondent is held to be an authority not falling within the definition of ‘State’ under Article 12 of the Constriction, the relief sought for by the petitioners in this writ petition cannot be granted. 18. Hence, in view of the above, this court opines that the writ petition is not maintainable and hence, the same is dismissed with liberty to the petitioners to redress their grievance by taking recourse to appropriate law. 19. With the above observations, the Writ Petition is dismissed. As a sequel, the miscellaneous applications pending, if any, shall stand closed.