TMI Blog1980 (11) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision should be quashed as being illegal and unconstitutional. Petitioner 1 is a Union of the Workers of the Factory, Petitioner 2, Shri A. K. Roy, a Member of Parliament from Dhanbad, is the President of that Union, while Petitioners 3 and 4 are workers employed in the Factory. Respondent 1 to the Writ Petition is the Union of India, Respondent 2 is the Fertilizer Corporation of India, ('FCI'), Respondent 3 is the Sindri Fertilizer Factory, while the added Respondent 4, Ganpatrai Agarwal, is the highest tenderer. Respondent 2, a Government of India Undertaking, is a Company incorporated under the Companies Act 1956 and is a 'Government Company' within the meaning of Section 617 of that Act. It established the Respondent 3 Factory, which was commissioned in 1951. By article 66(1) of the Articles of Association of respondent 2, its directors are appointed by the President of India. On January 4, 1980 the Board of Directors of respondent 2, (FCI), decided that tenders should be invited for the sale of 'Redundant/retired plants and equipment of respondent 3. In pursuance of that decision, an advertisement was inserted in the newspapers on February 25, 1980 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rores. There were six such tenders amongst the nine valid tenders. A week later, the six tenderers who had submitted those tenders were called to Sindri and a fresh list of reduced items was furnished to them. They submitted their revised tenders in sealed covers on May 23, 1980. On May 24, the Tender Committee considered the offer made by Respondent 4 in the sum of ₹ 4.25 crores as the best, that being the highest amongst the fresh reduced offers. The Tender Committee referred the matter to the Board on the same date and on May 29, the Board gave its approval to the acceptance of respondent 4's offer. On May 30, a letter of Intent was issued by Respondent 2 in the name of Respondent 4 who paid the security deposit of ₹ 50 lakhs on June 13, 1980. An order of sale in favour of Respondent 4 was issued by Respondent 2 on July 7, 1980 whereupon Respondent 4 started dismantling the machinery and equipment which he had purchased. This Writ Petition was filed on August 14, 1980. On August 25, the Court issued a show cause notice on the writ petition and stayed the sale. The petitioners challenge the sale, inter alia, on the following grounds: (1) that the decision to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As contrasted with Article 32, Article 226 (1) of the Constitution provides that: Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose . (emphasis supplied). The difference in the phraseology of the two Articles brings out the marked difference in the nature and purpose of the right conferred by these Articles. Whereas the right guaranteed by Article 32 can be exercised for the enforcement of fundamental rights only, the right conferred by Article 226 can be exercised not only for the enforcement of fundamental rights but for any other purpose. The jurisdiction conferred on the Supreme Court by Article 32 is an important and integral part of the basic structure of the Constitution because it is meaningless to confer fundamental rights witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ploy the workmen working in the plants that had to be shut down in various other plants set up under the scheme of modernisation and rationalisation and in the various facilities that had been renovated in the Sindri complex itself. Thus, not only did the sale not affect the employment of the workers employed in the Factory, but those of them who were rendered surplus from time to time on account of the closure of the plants were absorbed in alternate employment in the same complex. Secondly, the right of Petitioners 3 and 4 and of the other workers to carry on the occupation of industrial workers is not, in any manner affected by the impugned sale. The right to pursue a calling or to carry on an occupation is not the same thing as the right to work in a particular post under a contract of employment. If the workers are retrenched consequent upon and on account of the sale, it will be open to them to pursue their rights and remedies under the Industrial Laws. But the point to be noted is that the closure of an establishment in which a workman is for the time being employed does not by itself infringe his fundamental right to carry on an occupation which is guaranteed by Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on behalf of Respondent 2, FCI. He has pointed out to us numerous circumstances from which it would appear that the grievance of the petitioners that the sale was unfair and arbitrary is not justified. The affidavits filed on behalf of the respondents, particularly those of Shri R. C. Malhotra, Chief Engineer of the Sindri Unit and of Shri K. V. Krishna Ayyar, Under Secretary in the Department of Chemicals and Fertilisers, Government of India, show that the Sindri Plant, which was commissioned in 1951 and was expanded in 1959 and 1969 by providing certain extra facilities, had outlived its use. Various schemes were considered from time to time for improving the economics of the Sindri Unit in order to ensure continued employment to the workers. The first of such schemes was the Sindri Rationalisation Scheme, which was approved by the Government in 1967. This scheme was completed in October 1979 at a cost of ₹ 60.77 crores While the Rationalisation Scheme was under implementation, it transpired that the Ammonia manufacturing facilities based on coke were fast deteriorating and unless the equipment was renovated substantially or was replaced with modern equipment, it was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h approval was taken before the sale was finalised in favour of Respondent 4; (3) The decision of the Board was restricted to a small part of the assets of the Sindri Factory. The balance sheet for 1954-55 of the erstwhile Sindri Fertiliser Chemicals Ltd. shows that the assets of the said Factory were of the value of ₹ 22,82,99,086/- as on April 1, 1954, out of which plants, equipment, machinery, etc. were of the value of ₹ 14,68,59,502/-. The original cost of the plants and equipment, which have now been sold, was about ₹ 10 crores, of which the written-down value as on March 31, 1980 was about ₹ 50 lakhs. The present outlay on the Sindri Unit is in the region of ₹ 220 crores; (4) The decision to sell the redundant or retired plants became necessary for the reason that they had out lived their life, having run for a period ranging from 18 to 28 years. It had also become unsafe, hazardous and uneconomic to run such plants and equipment; and (5) Although the old plants had to be shut down on account of the sale, no employee at all was retrenched or is likely to be retrenched on account of the sale. The answer which the Minister for Petrole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l reduction in the goods advertised for sale. The authorities then sent for the nine tenderers and negotiated with them across the table. We want to make it clear that we do not doubt the bonafides of the authorities, but as far as possible, sales of public property, when the intention is to get the best price, ought to take place publicly. The vendors are not necessarily bound to accept the highest or any other offer, but the public at least gets the satisfaction that the Government has put all its cards on the table. In the instant case, the officers who were concerned with the sale have inevitably, though unjustifiably, attracted the criticism that during the course of negotiations the original bid was reduced without a justifying cause. We had willy-nilly to spend quite some valuable time in satisfying ourselves that the reduction in the price was a necessary and fair consequence of the reduction in the quantity of the goods later offered for sale on March 31, 1980. One cannot exclude the possibility that a better price might have been realised in a fresh public auction but such possibilities cannot vitiate the sale or justify the allegation of mala fides. In view of the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttorney General, the learned Additional Solicitor General, Shri A. K. Sen and Shri R. K. Garg on the question of the maintainability of the writ petition. We consider it unnecessary to discuss them in view of the fact that we have come to the conclusion that the petitioner's fundamental right under Article 19 (1) (g) to carry on the occupation of an industrial worker is not affected by the sale, and similarly, that his fundamental right, if any, under Article 14 of the Constitution has not been violated. The question as regards 'access to justice'. particularly under Article 226 of the Constitution, has been dealt with by Brother Krishna Iyer, at some length, for which reason I do not consider it necessary to dwell upon that topic. In the result, we dismiss the petition and discharge the rule. There will be no order as to costs. KRISHNA IYER, J. This Writ Petition which, in the forensic unfolding through oral submissions, has exceeded our expectations, bristles with profound issues of deep import one of which is the citizen's legal standing vis a vis illegal handling of public resources a jurisprudential area of critical importance but of precedential barre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime more were offered as a measure of alleviation, that certainly is not equal to the steady and assured service in a public sector undertaking which is a Government company owned entirely by the President of India. Their economic fortunes and employment status are affected by the amputation of a limb of the company. These workers have invoked the jurisdiction of this Court under Art. 32 of the Constitution and sought to demolish through the writ of this Court, both the decision to sell the plant on the score of obsolescence and the dubious manner of sale which, in their submission, has resulted in colossal loss to the public exchequer and, vicariously, to the citizenry of the country, including, a fortiori, the workers in the enterprise. Two questions incidentally arise: Have the workers locus standi under Art. 32, which is a special jurisdiction confined to enforcement of fundamental rights ? What, if any, are the fundamental rights of workmen affected by the employer's sale of machinery whose mediate impact may be conversion of permanent employment into precarious service and eventual exit ? Lastly, but most importantly, where does the citizen stand, in the context of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s command function of the law It is good that we state the inter-action between planning and law in the words of Prof. Berman: Plan is that aspect of the social process which is concerned with the maximum utilization of institutions and resources from the point of view of economic development; law is that aspect of the social process which is concerned with the structuring and enforcing of social policy (plan) in terms of the rights and duties therefrom . Our national reconstruction involves an enormous increase in public sector operations in fulfillment of the paramount directives of Part IV of the Constitution. In a society in which the State had thrust upon it the imperative of effectuating massive transformation of economy and social structure the demands upon the legal order to inhibit administrative evils and engineer developmental progress are enormous, though novel. The present case, whatever the merits and the ultimate conclusion, does raise the deeper issue of the dynamics of social justice vis-a-vis the role of the Rule of Law where the public sector occupies the commanding heights of the national economy and yet asserts a right to be free from judicial review. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he individual does not have even the few procedural devices that the common law imports into criminal actions to try to redress the balance. At his own expense, he must challenge the vast panoply of State power with all its resources in personnel, money, and legal talent, by a civil action for a declaratory judgment or for an extraordinary remedy-injunction, writ of mandamus, or writ of prohibition. Aside from the manifold technical insufficiencies of these forms of action, the financial impediments to such an action are staggering. As a result of these impediments, in the United States, where almost the sole institutional protection against administrative error or arbitrariness is such an action, usually only great corporations or individuals who are supported by large voluntary associations have been able to carry through litigation. To rely upon such individual actions as the primary means of policing administrative action in Africa is to rely upon what is nonexistent. A pragmatic approach to social justice compels us to interpret constitutional provisions, including those like Arts. 32 and 226, with a view to see that effective policing of the corridors of power is carried ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et either by discarding or by adjusting the legal system. Which is to be ? Lest there should be misapprehension, we wish to keep the distinction clear between the fundamental right to enforce fundamental rights and the interest sufficient to claim relief under Art. 226 and even under other jurisdictions. The learned Attorney General almost agreed, under pressure of compelling trends in the contemporary law of procedure, that Art. 226 may probably enable the petitioner to seek relief if the facts suggested by the court hypothetically existed. Shri A. K. Sen also took up a similar position. I will put aside Art. 32 for a moment and scan the right under Art. 226. There is nothing in the provision (unlike under Art. 32) to define 'person aggrieved', 'standing' or 'interest' that gives access to the court to seek redress. The argument is, who are you to ask about the wrong committed or illegal act of the Corporation if you have suffered no personal injury to property, body, mind or reputation ? An officious busybody picking up a stray dispute or idle peddlar of blackmail-litigation through abuse of the process of the court cannot be permitted to pollute th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. Such protection, moreover, is best assured by a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement-the most basic 'human right'-of a system which purports to guarantee legal rights. The need for a radical approach has been underscored in New Zealand by Black: .......today it is unreal to suggest that a person looks to the law solely to protect his interests in a narrow sense. It is necessary to do no more than read the newspapers to see the breadth of the interests that today's citizen expects the law to protect-and he expects the court where necessary to provide that protection. He is interested in results, not procedural niceties. India is an a fortiori case, especially as it suffers from the pathology of mid Victorian concepts about cause of action. The Australian Law Reform Commission in its discussion paper No. 4 has considered the pros and cons and strongly supported the wider basis for access to justice. Class-actions will activise the legal process where individuals cannot approach the court for many reasons. I quote from the Discussion Paper No. 4 : Widened ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest in the relevant controversy. Surveying the result in 1973 Professor Scott commented : 'When the floodgates of litigation are opened to some new class of controversy by a decision it is notable how rarely one can discern the flood that the dissentors feared. Professor Scott went on to point out that the liberalised standing rules had caused no significant increase in the number of actions brought, arguing that parties will not litigate at considerable personal cost unless they have a real interest in a matter. We agree with the conclusion of the Commission: The moral, perhaps, applies; if the courts cannot, or will not, give relief to people who are in fact concerned about a matter then they will resort to self-held, with grave results for other persons and the rule of law. Some may reply that if there is no evidence of a great increase in numbers there is no evidence of need for enlarged standing rights. The reply would overlook two considerations. One case may have a dramatic effect on behaviour in hundreds of others; this is the whole notion of the legal 'test case'. Secondly, the mere exposure to possible action is likely to affect the behaviour of perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly, has an interest in the industry, brings this action regarding an alleged wrong-doing by the Board of Management. Article 43A of the Constitution confers, in principle, partnership status to workers in industry and we cannot, therefore, be deterred by technical considerations of corporate personality to keep out those who seek to remedy wrongs committed in the management of public sector. Locus standi and justiciability are different issues, as I have earlier pointed out. This takes us to the question of justiciability of questions like sale of public property by public bodies. Certainly, it is not part of the judicial process to examine entrepreneurial activities to ferret out flaws. The court is least equipped for such oversights. Nor, indeed, is it a function of the judges in our constitutional scheme. We do not think that the internal management, business activity or institutional operation of public bodies can be subjected to inspection by the Court. To do so, is incompetent and improper and, therefore, out of bounds. Nevertheless, the broad parameters of fairness in administration, bona fides in action, and the fundamental rules of reasonable management of public bus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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