TMI Blog2016 (12) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... that the termination of service was illegal and the consequences flowing therefrom. However, the Court may hasten to add that if a suit is filed alleging violation of a right by a workman and a corresponding obligation on the part of the employer under the Industrial Disputes Act or the Certified Standing Orders, a civil suit may not lie. However, if no procedure has been followed as laid down by the statutory Regulation or is otherwise imperative even under the common law or the principles of natural justice which right having arisen under the existing law, subpara (2) of paragraph 23 of the law laid down in Premier Automobiles Ltd. vs. Kamlekar Shantaram Wadke of Bombay & others [1975 (8) TMI 124 - SUPREME COURT ] shall prevail. [Vide Bal Mukund (2009 (2) TMI 807 - SUPREME COURT )] For all the foregoing reasons, the preliminary objection as regards the maintainability of this writ application is upheld. I hold that this writ application is not maintainable against the Reliance Industries Limited. This writ application is disposed of with liberty to the legal heirs of the original writ applicant to approach any other forum for the redressal of their grievance if so advised. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such other and further reliefs, as the facts and circumstances of the present case may require. 2 The writ applicant joined the services of the Indian Petrochemicals Corporation Limited (now taken over by the Reliance Industries Limited ) in the year 1970. The Indian Petrochemicals Corporation Limited (for short, I.P.C.L. ) was owned by the Government of India. It was a company incorporated under the Companies Act. The I.P.C.L. was a State within the meaning of Article 12 of the Constitution of India. 3 The subject matter of challenge in this writ application is the order passed by the disciplinary authority dismissing the writ applicant from service as well as the order passed by the appellate authority affirming the order of dismissal from service. 4 When this writ application was filed in the year 2002, the I.P.C.L. was very much in existence. During the pendency of this writ application, a major development took place in the form of the Reliance Petro Investment Limited purchasing 20% of the shares of the I.P.C.L. The I.P.C.L. ultimately got merged with the Reliance Petro Investment Limited vide order dated 16th August 2007 passed by this Court for amal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en infringed. It is only this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India can enforce the fundamental rights of the writ applicant alleged to have been violated. A Civil Court cannot give any declaration as regards the fundamental rights and also cannot enforce the fundamental rights. In such circumstances, according to Mr. Bhatt, this writ application should be held to be maintainable even though the R.I.L is not a State within the meaning of Article 12 of the Constitution of India. According to Mr. Bhatt, when the I.P.C.L. was taken over by the R.I.L. , all the rights and obligation of the I.P.C.L. could be said to have been taken over by the Reliance Petro Investment Limited , and if that be so, then this writ application is maintainable against the R.I.L. for the purpose of enforcing the obligations of the I.P.C.L. 10 Mr. Bhatt would submit that the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India is very wide and is meant for doing substantial justice. This Court, according to Mr. Bhatt, in exercise of its writ jurisdiction under Article 226 of the Constitution of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a contract in a Court which otherwise does not have the jurisdiction. Similarly, if this Court has no jurisdiction to entertain a writ against the R.I.L. , which as of today is a private entity, merely because the R.I.L. at the time of taking over the I.P.C.L. might have agreed that the proceedings pending against the I.P.C.L. would be continued, would not vest jurisdiction with this Court to entertain a writ against the R.I.L. . Mr. Nanavaty, in support of his submissions, has placed reliance on the following decisions: (1) Asulal Loya vs. Union of India and others [2008 (106) DRJ 100] (2) Ladley Mohan vs. Union of India and others [Writ Petition (Civil) No.1479 of 1995 and 4592 of 1998 decided on 4th May 2010 by a learned Single Judge of the High Court of Delhi] (3) An order passed by a Division Bench of this Court in the case of Chandrashekhar Jayendrarai Chhaya vs. IPCL Limited [Letters Patent Appeal No.736 of 1994 decided on 6th April 2005] (4) An order passed by a Division Bench of this Court in the case of IPCL Retired Employees Association vs. Indian Petrochemical Corporation Limited and others [Letters Patent Appeal No.970 of 2008 decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over the administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging public function, the pubic law remedy can be enforced. The duty cast upon a public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be a public law element in such action. The respondent Reliance Petro Investment Limited has nothing to do with the public as such. It is a company engaged in the business of petroleum products. Neither the Union nor the State has any control over the respondent company. Mere issue of a licence by the Union or State Government for the purpose of running the company by itself will not make it an instrumentality of a State or an agency of a State . 20 The argument of the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when it performed a public function or discharged a public duty. The R.I.L. is not performing a public function nor discharging a public duty. It is only doing a commercial activity. Hence, no writ lies against it. 22 The correct interpretation of the aforesaid words in Article 226 is that a writ can ordinarily be issued to a person to whom writs were traditionally issued by the British Courts on the wellestablished principles. Similarly, the words, for any other purpose have to be interpreted in the narrower sense to mean that a writ can be issued for the purpose for which the writs were traditionally issued by the British Courts on the wellestablished principles. The British Courts did not ordinarily issue writs to private persons except a writ of habeas corpus. 23 No doubt the power to issue writs under Article 226 is wider than those of the British Courts vide Dwarika Nath v. ITO (AIR 1966 SC 81 ) , but in my opinion they are not so wide as to permit the Judges to do anything they like in the writ jurisdiction. There are well settled principles governing the exercise of power under Article 226 as laid down in the various decisions of the Supreme Court, and these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court affirmed the view taken by the learned Single Judge. The Division Bench took the view that the form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on that body. The duty must be judged in light of the positive obligation owned by the person or authority to the affected party, no matter by what means the duty is imposed. The matter reached upto the Supreme Court. The Supreme Court took the view that the High Court fell into error that the appellant company was amenable to the writ jurisdiction. I may quote the observations of the Supreme Court as contained in paras 6, 7, 8 and 9 as under: 6. In the case of Shri Anadi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani [(1989) 2 SCC 691], the contention, similar to the present case, had been raised. Writ petitioners were seeking for a writ of mandamus to put them back in the college and they were claiming only a terminal benefit or arrears of salary payable to them. In that background, it was observed that if the rights are purely of a private character no mandamus could be issued and also, if the management of the colleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... selected to run a prison although motivated by commercial profit should be regarded, at least in relation to some of its activities, as subject to public law because of the nature of the function it is performing. This is because the prisoners, for whose custody and care it is responsible, are in the prison in consequence of an order of the Court, and the purpose and nature of their detention is a matter of public concern and interest. After detailed discussion, the learned authors have summarized the position with the following propositions : (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 a 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 bran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words, it is only a labour welfare device for the benefit of its work force unlike a provision where Pollution Control Act makes it obligatory even on a private company not to discharge certain effluents. In such cases public duty is owed to the public in general and not specific to any person or group of persons. Further the damage that would be caused in not observing them is immense. If merely what can be considered a part of the conditions of service of a workman is violated then we do not think there is any justification to hold that such activity will amount to public duty. Thus, we are of the view that the High Court fell into error that appellant is amenable to writ jurisdiction. 9. This Court in Indian Petrochemicals Corporation Ltd. v. Shramik Sena, (1999) 6 SCC 439 : (1999 AIR SCW 2740 : AIR 1999 SC 2577 : 1999 Lab IC 3078), referred to the decisions in Parimal Chandra Raha's case (1995 AIR SCW 1609 : AIR 1995 SC 1666 : 1995 Lab IC 2064); Reserve Bank of India v. Workmen, (1996) 3 SCC 267 : (1996 AIR SCW 1298 : AIR 1996 SC 1241 : 1996 Lab IC 1048) and M.M.R. Khan v. Union of India, 1990 (Supp) SCC 191 : (AIR 1990 SC 937), and held that the workmen of a statuto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are enumerated by the various Courts are only self imposed restraints aimed at using the extraordinary power only to the deserving situations. There is no difficulty while exercising the power as against the Government, Statutory authorities, Corporations and the Establishments coming within the definition of State under Article 12 of the Constitution of India. But when it comes to issuing a writ against the private companies, establishments and individuals, the ground for exercising the power are restricted and narrowed down having regard to the extraordinary nature of the power and the availability of alternative remedies. Some of the grounds which would weigh against the exercise of the power are (i) availability of effective alternative remedy (2) absence of any public duty; (3) laches and unreasonable delay in approaching the Court; (4) Need to deal with and adjudicate upon the complicated facts which would require detailed evidence oral or documentary etc. These are the factors which would dissuade the Courts from exercising the jurisdiction. 27 In ROHTAS Industries vs. its Union [1976 AIR 425 : 1976 SCR (3) 12] , the Supreme Court observed as follows: 9. (1) (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondentIndian Petrochemicals Corporation Ltd. has been taken over by M/s. Reliance Petro Investments Ltd., and as such the respondent is nonexistent and the establishment which has taken over the respondent is not a State within the meaning of Article 12 of the Constitution. #. Learned counsel for the petitionerappellant wanted to contest the issue submitting that the Special Civil Application was filed in the year 1982 and if during pendency of this writ application, because of the disinvestment or because of taking over of the Central Government's Corporation, the Corporation has become nonexistent, their rights would not suffer a dent. #. In the opinion of this Court, the question would have been different if writ had already been issued in favour of the appellants and Indian Petrochemicals Corporation Ltd. had been appellant before us, at that point of time, this argument could assume some importance. #. As the respondent is not in existence and the authority/establishment, which has taken over it, is not falling within the mischief of Article 12 of the Constitution, we must observe that the appeal has become infructuous. It is accordingly dismissed. We, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 267 of the Constitution stipulates that provisions of General Clauses Act, 1872 can be applied for interpretation of the Constitution. However, Section 6 of the General Clauses Act, it has been held is not applicable to the Constitution of India. Allahabad High Court in Seth Jagamander Das and Others versus State, reported in AIR 1951 Allahabad 703 has held that Section 6 applies where any Central Act or Regulation is repealed. Constitution of India is not a Central Act or Regulation. The said decision and observations in this regard of Allahabad High Court were approved by the Supreme Court in the appeal preferred by State of Uttar Pradesh against said decision, titled State of Uttar Pradesh versus Seth Jagamander Das reported in AIR 1954 SC 683. Moreover, normally inchoate rights which have not matured, do not survive. A mere hope or expectation does not confer any right. 3. It is fairly well settled that a writ petition is not maintainable against a private limited company or a public limited company in which the State does not exercise all pervasive control. In Binny W.P.(C) No.3043/1991 Page No.4 Limited and Another versus V. Sadasivan and Others, reported in (2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Loya (supra) and dismissed the writ petition as not maintainable. Ladley Mohan , a qualified Engineer, had joined the employment of the respondent Modern Food Industries (India) Limited (MFIL) as the Engineering Manager (Project). The company disallowed Ladley Mohan to cross the efficiency bar at the stage of the basic pay though it was due to be allowed to him and thereby stopping his increment at that stage. Ladley Mohan pleaded that the MFIL was an instrumentality of the Union of India, and therefore, the writ application was maintainable. When the petition was taken up for hearing, the counsel for the Hindustan Unilever Limited informed the Court that during the pendency of the writ petition, on account of privatisation, the MFIL, who was an undertaking of the Union of India, stood disinvested and the Unit had been taken over by the Hindustan Unilever Limited . The Hindustan Unilever Limited questioned the continued maintainability of the writ petition for the reason that the MFIL was no longer a public sector undertaking. The Court noted the averments of the affidavit filed on behalf of the Hindustan Unilever Limited. In the additional affidavit supported by documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the transferor company (MFIL) if the scheme had not been made. 7. The petitioner appearing in person and the counsel for the Hindustan Unilever Ltd. have been heard. The petitioner besides relying on the clause aforesaid has also contended that he has been litigating in these petitions for the last 15 years and if now relegated to a suit, long time will be taken in disposal thereof also, causing undue prejudice to him. 10. The petitioner next contends that Asulal Loya did not consider the clause as aforesaid. Undoubtedly, as per the said clause, the proceeding pending on the date of privatization against MFIL were to be continued against MFIL/Hindustan Lever Limited without prejudicially affecting the same; the petitioner would certainly be affected by this court holding the writ petition to be not maintainable. However, the question that arises is that, when the writ petition is not maintainable against MFIL/Hindustan Lever Limited, could MFIL/Hindustan Lever Limited by agreement aforesaid, make itself amenable to the writ jurisdiction. It is not open for a person/party to agree or disagree to the amenability to the writ jurisdiction. If under the law, a party is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner choose any such remedy where the question of limitation would be relevant. The order passed by the Division Bench of the Bombay High Court referred to above was challenged before the Supreme Court by filing the Special Leave to Appeals (Civil ) Nos.5185 5186 of 2009. The Supreme Court, while upholding the view taken by the Bombay High Court, observed as under vide order dated 6th May 2010: These Special Leave Petitions are directed against the final judgment and order dated 25th April, 2008, passed by the Bombay High Court in Writ Petition No.1229/1998 and Writ Petition No.1461/2003, dismissing the writ petitions filed by the petitioner challenging his transfer from Bombay to Korba and, subsequently, his termination from service. When the Writ Petitions were taken up for hearing by the High Court, it was found, that on account of disinvestment, the Company was no longer State within the meaning of Article 12 of the Constitution and was not, therefore, amenable to writ jurisdiction. The Writ Petitions were, accordingly, disposed of granting liberty to the petitioners to approach any other forum for redressal of their grievances, if so advised. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other Court, Tribunal or authority to express any opinion in conflict with or in departure from the view taken by the Supreme Court because permitting to do so would be subversive of the judicial discipline and an affront to the order of the Supreme Court. However, this would be so not by reference to the doctrine of merger. A speaking order refusing the leave to appeal has two implications. First, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the Court, Tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the Court, Tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Government of India. The scheme for rehabilitation sanctioned by the BIFR fell through. Finally, the Government of India effected disinvestments by transferring its shares to a private party. It was submitted on behalf of the respondent company that the said Jessop and Company had ceased to be a Government company or an authority within the meaning of Article 12 of the Constitution of India in view of the privatisation of the said company. The counsel of the respondent Jessop and Company, on commencement of the hearing of the appeal, raised a preliminary objection regarding the maintainability of the appeal on the ground that the said Jessop and Company had ceased to be a Government company and therefore, not amenable to the writ jurisdiction. It was submitted that an appeal being a continuation of the writ proceeding, the appellants were not entitled to pursue the matter any longer as no writ could be issued against the private management of the Jessop and Company . The appellants therein prayed for the recomputation of their Voluntary Retirement Scheme benefits on the basis of the order of the Government of India in relation to the revision of pay. On behalf o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resaid preliminary objection regarding maintainability of the appeal on the ground that the said Jessop and Co. has ceased to be a Government company and therefore, not amenable to the writ jurisdiction. 5. Mr. L. K. Gupta, learned Senior Counsel of the respondent company submits that an appeal being a continuation of the writ proceeding, the appellants are not entitled to pursue the matter any longer in the present case as no writ can be issued against the present management of the Jessop and Co. Mr. Gupta further submits that in order to maintain a writ petition the petitioners have to show that they have locus standi . The said learned Counsel of the respondent company submits that a petitioner can have locus standi when he has a legal right which has been infringed or is threatened to be infringed and in absence thereof, a writ petition is not entertainable. Mr. Gupta also submits that on the date of filing the writ petition even if the writ petitioner had the locus standi but subsequently in course of the proceeding if the said legal right was extinguished then the said writ petitioners would not be entitled to maintain the proceeding any more to loss of locus standi . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... op and Co. Ltd. It has been submitted on behalf of the respondent company that the present management of Jessop took over charge on 2003 after transfer of shares and the validity of which was upheld by a Division Bench of this Hon'ble Court. The appellants/writ petitioners admittedly retired in the year 1998. The learned Counsel of the respondent company submits that there was never any employer employee relationship between the present management and the appellants and hence, the present management of the respondent company has no liability towards the appellants/writ petitioners. Mr. Gupta, learned Counsel of the respondent company submits that when the said respondent company was a Public Sector Enterprise could have at the highest a contingent liability depending on the future generation of funds out of its working as per Para (ii) of office memorandum dated 29th January, 1999. Mr. Gupta further submits that the Government of India had at the relevant time a control over the respondent company because of its share holdings although the Government of India was neither a part of the public sector enterprise nor the said public sector enterprise was a part of the Government of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stment (supra) reported in 1988 (2) C L J 491 is set out hereunder : Be that as it may, the observations of the Supreme Court in (15) Gojer Brothers v. Ratan Lal Singh, AIR 1974 SC 1380 and also in the various earlier decisions referred to and relied on therein would go to show that the observations in the Division Bench decision of this Court in Satyanarayan Prasad (supra) extracted hereinbefore, require consideration. It has been pointed out in Gojer Brothers (supra), that once an appeal is filed against a decree, the appellate Court would has to confirm, modify or reverse the decree and that and in all these cases the operative decree would be the decree of the appellate Court, not only when it reverse or modifies the decree but even when it confirms it and the decree under appeal would lose its identity and it may be urged that these observations in Gojer Brothers (supra), go to lend considerable support to the observations of this Court in satyanarayan Prasad (supra), then on an appeal from a decree the matter covered and decided by the decree become pending matters and the decree shall obviously stand displaced by the appellate decree, in whichever way the appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... performance of contracts to transfer immovable property, said that if, when the jurisdiction of the Court had once attached, it could be ousted by the transfer of the defendant's interest, there would be no end to litigation and justice would defeated. 17. Learned Senior Counsel of the appellants very strongly urged before this Court that the provisions of Order 22, Rule 10 of the Code of Civil Procedure permits the continuance of a pending proceeding as originally framed notwithstanding any assignment creation or devolution of any interest during the pendency of the proceeding. 18. Sir Asutosh Mookerjee in a celebrated judgment in Ray Charan Mandal v. Biswa Nath Mondal reported in 20 C L J 107 held: The Rule was recognised in Radhey Koer v. Ajodhya Das that a suit must be tried in all its stages on the cause of action as it existed at the date of its commencement. This is in accord with the observation of Lord Kings Down in Anundmoyee v. Sheeb Chunder that in appeal the question is whether the decision of the primary Court is correct on the facts as they stood when the judgment was rendered, and that no subsequent event or devolution of interest can affect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India and also the respondent company to devise any scheme which will absolve them from the liability in a pending appeal. Mr. Mukherjee also submits that under the Voluntary Retirement Scheme, ex gratia amount has always been paid by the Government of India. 22. According to Mr. Mukherjee, the appellants hereinhave only claimed recalculation of the ex gratia payment on the basis of the revised pay scale which was implemented in the respondent Jessop and Co. w.e.f. 1st January, 1992. Mr. Mukherjee also submits that as per extant policy ex gratia payments are made to the voluntary retirees by the Government of India. It has been specifically submitted on behalf of the appellants that the Government of India, Department of Heavy Industries, time to time issued order extending various benefits to the voluntary retired officers of PSEs in connection with pay revision and the reference has been made in this regard to the office memorandum dated 8th December, 2000 issued by the Heavy Industries and Public Enterprises Department, Government of India wherein it has been categorically mentioned that ex gratia will recalculated on the basis of the revised pay scale and the dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 10 of the Code of Civil Procedure are very much applicable in this regard. The aforesaid provisions of Order 22, Rule 10 of Code of Civil Procedure are set out hereunder : O. 22, R. 10. Procedure in case of assignment before final order in suit. (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of subrule (1) . 26. We, therefore, do not understand how the appellant can be non suited during pendency of the present appeal. This Court in the case of Zodiac Investment v. Durga Investment Trading and Co. and Anr. reported in 1988 (2) C L J 491 held : 13. Mr. Mukherjee, the learned Counsel appearing for the appellants, has very strongly urged that while a decree for against a tenant would divest him of his status as a tenant, such a decree must be a final one and that once an appeal is filed and is pending against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons in terms of Article 21 of the Constitution of India. They, therefore, must do so in cases of their own employees. The Government of the State of Bihar for all intent and purport is the sole shareholder. Although in law, its liability towards the debtors of the company may be confined to the shares held by it but having regard to the deep and pervasive control it exercises over the Government Companies; in the matter of enforcement of human rights and/or rights of the citizen to life and liberty, the State has also an additional duty to see that the rights of employees of such corporations are not infringed .... 30. Before disinvestment of shares, Jessop and Co. was undisputedly, a Government Company and the Government of India was, therefore, under an obligation to see that the rights of the employees of the said Government company are not infringed in any manner. The Government of India, however, allowed disinvestment of shares during the pendency of the appeal and such transfer of shares in favour of the private individual is the subject matter of challenge before the Supreme Court. Since the Government of India during the pendency of the appeal permitted the tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the filing of the appeal, the Jessop and Company, indisputably, was a public sector undertaking. (2) The Jessop and Company became a public sector undertaking consequent upon its nationalisation by an act of Parliament and its privatisation was brought about by the disinvestments in shares on the basis of an executive decision. (3) The propriety and legality of the aforesaid privatisation was a subject matter of the proceedings pending before the Larger Bench of the Supreme Court. (4) The status of the respondent company was a public sector enterprise at least on the date of filing of the appeal. (5) The provisions of Order 22 Rule 10 of the Code of Civil Procedure would be applicable. The cause of action for filing the writ application crystallised at a point of time when the respondent authority was, indisputably, subject to the writ jurisdiction. (6) The said cause of action conferred a vested right to the writ applicants to have their grievances adjudicated in a writ proceeding. (7) The writ applicants had not brought about the situation by their own conduct and therefore, the change of circumstances could not be attributed to the writ applicants. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: ...The ordinary rule of litigation is that the rights of the parties stand crystallized on the date of commencement of litigation and right to relief should be decided by reference to the date on which the petitioner entered the portals of the Court. A petitioner, though entitled to relief in law, may yet be denied relief in equity because of subsequent or intervening events, i.e. the events between the commencement of litigation and the date of decision. The relief to which the petitioner is held entitled may have been rendered redundant by lapse of time or may have been rendered incapable of being granted by change in law. There may be other circumstances which render it inequitable to grant the petitioner any relief over the respondents because of the balance tilting against the petitioner on weighing inequities pitted against equities on the date of judgment. Third party interests may have been created or allowing relief to the claimant may result in unjust enrichment on account of events happening in between. Else the relief may not be denied solely on account of time lost in prosecuting proceedings in judicial or quasijudicial forum and for no fault of the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in the cause of action or relief. The primary concern of the court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine ( see V.P.R.V. Chockalingam Chetty v. Seethai Ache AIR 1927 PC 252 ). 46 In Seshambal (dead) through legal heirs vs. M/s. Chelur Corporation, Chelur Building and others [AIR 2010 SC 1521(1)] , the Supreme Court, while dealing with an appeal arising under the Kerala Buildings (Lease and Rent Control) Act (2 of 1965), held as under: ..While it is true that the right to relief must be judged by reference to the date the suit or the legal proceedings were instituted, it is equally true that if subsequent to the filing of the suit, certain developments take place that have a bearing on the right to relief claimed by a party, such subsequent events cannot be shut out from consideration. What the Court in such a situation is expected to do is to examine the impact of the said subsequent development on the right to relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise...... 48 Even if the aforesaid dictum of the Supreme Court is applied in the case in hand, it is difficult for this Court to take the view that as the writ applicant is not responsible for the change of circumstances and the writ application was maintainable at the time when it was filed, a writ can be issued to a private entity for the purpose of enforcing the fundamental rights of the writ applicant alleged to have been infringed by a company, a public sector undertaking at a point of time and now no longer in existence. It is also not legally permissible to take the view that since the I.P.C.L. was a Government of India undertaking, a writ could be issued against the Union of India. An employee of a public sector undertaking by itself will not be a civil servant or an employee of the Union of India. At best, he could be termed as an employee of a company owned by the Government. Therefore, even ignoring the I.P.C.L., no liability could be fastened even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs are questioned before it should keep in mind the following : (1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. [See State of Assam and Anr. v. Mahendra Kumar Das and Ors. [(1970) 1 SCC 709]. (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice [See Khem Chand v. Union of India and Ors. (1958 SCR 1080) and State of Uttar Pradesh v. Om Prakash Gupta (1969) 3 SCC 775]. (3) Exercise of discretionary power involve two elements (i) Objective, and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. [See K.L. Tripathi v. State Bank of India and Ors. (1984) 1 SCC 43]. (4) It is not possible to lay down any rigid rules of the principles of natural justice which depends on the facts and circumstances of each case but the concept of fair play in action is the basis. [See Sawai Singh v. State of Rajasthan (1986) 3 SCC 454]. (5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subjectmatter of the charges is w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. (3) Challenge to the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial Disputes Act or the sister laws so called, the civil court will have none. In this view of the matter, in my considered opinion, it would not be correct even to contend that only because the employee concerned is also a workman within the meaning of the provisions of the 1947 Act or the conditions of his service are otherwise governed by the Standing Order certified under the 1946 Act ipso facto the Civil Court will have no jurisdiction. This aspect of the matter has been considered by the Supreme Court in Rajasthan State Road Transport Corporation and Ors. vs. Mohar Singh [(2008) 5 SCC 542] . The question as to whether the civil court's jurisdiction is barred or not must be determined having regard to the facts of each case. If the infringement of the Standing Order or other provisions of the Industrial Disputes Act are alleged, the civil court's jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil court's jurisdiction may not be held to be barred. If no right is claimed under a special statute in terms whereof the jurisdiction of the civil cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution of India. In such a situation, a civil suit will be maintainable for the purpose of declaration that the termination of service was illegal and the consequences flowing therefrom. However, the Court may hasten to add that if a suit is filed alleging violation of a right by a workman and a corresponding obligation on the part of the employer under the Industrial Disputes Act or the Certified Standing Orders, a civil suit may not lie. However, if no procedure has been followed as laid down by the statutory Regulation or is otherwise imperative even under the common law or the principles of natural justice which right having arisen under the existing law, subpara (2) of paragraph 23 of the law laid down in Premier Automobiles Ltd. vs. Kamlekar Shantaram Wadke of Bombay others [(1976) 1 SCC 496] shall prevail. [ Vide Bal Mukund (supra)] 58 For all the foregoing reasons, the preliminary objection as regards the maintainability of this writ application is upheld. I hold that this writ application is not maintainable against the Reliance Industries Limited . 59 This writ application is disposed of with liberty to the legal heirs of the original writ app ..... 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