TMI Blog2000 (12) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... t the appellant had been managing the canteen up to the year 1982 and thereafter introduced the contract system for maintaining the canteen so established; that though the management of the canteen had been entrusted to the contractors from time to time, the personnel employed in the canteen were retained by all the contractors and they have been paid salaries through contractors; that the workmen employed in the canteen have been provided with ESI benefits under the Code No. VST, the appellant, and benefits arising under the Employees Provident Funds Act are also provided similarly; that the appellant has also provided a building along with furniture, utensils, cutlery, gas, electricity, water supply and other facilities; that the contractor is engaged only to prepare the food and serve it to the employees and that the quality of the food and the rates are controlled by the management of the appellant. On behalf of the appellant, contention was raised that no writ would lie against the appellant inasmuch as the appellant is a company, which is not an authority or a person against whom a writ would lie. It was submitted that they do not discharge any public duty and hence the wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d are not available to enforce private law rights. However, noticing that the expression any person or authority used in Article 226 of the Constitution should not be confined only to statutory authorities and instrumentalities of State but would 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 that body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party, no matter by what means the duty is imposed. On that basis, the Division Bench of the High Court dismissed the writ appeal. Hence this appeal. On behalf of the appellant contention put forth at the forefront is that a writ would not lie against the appellant inasmuch as the appellant is engaged in the manufacture and sale of cigarettes and as an incident thereto has provided a canteen to its workmen pursuant to an obligation under Section 46 of the Act. Shri S. Ganesh, learned counsel for the appellant, pressed into service the decision of this Court in Anadi Mukta Sadguru Shree Muktajee Vandas Swami Survarna Jayanti Mahotsav Smarak Trust Ors. vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson 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 that body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party, no matter by what means the duty is imposed, if a positive obligation exists, mandamus cannot be denied. In De Smith, Woolf and Jowells Judicial Review of Administrative Action, 5th Edn., it is noticed that not all the activities of the private bodies are subject to private law, e.g., the activities by private bodies may be governed by the standards of public law when its decisions are subject to duties conferred by statute or when, by virtue of the function it is performing or possibly its dominant position in the market, it is under an implied duty to act in the public interest. By way of illustration, it is noticed that a private company 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e various aspects and the distinction between an authority and a person and after analysis of the decisions referred in that regard came to the conclusion that it is only in the circumstances when the authority or the person performs a public function or discharges a public duty Article 226 of the Constitution can be invoked. In the present case, the appellant is engaged in the manufacture and sale of cigarettes. Manufacture and sale of cigarettes will not involve any public function. Incidental to that activity there is an obligation under Section 46 of the Act to set up a canteen when the establishment has more than 250 workmen. That means, it is a condition of service in relation to a workman providing better facilities to workmen to discharge their duties properly and maintain their own health or welfare. In other 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 observi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant has provided the accommodation, furniture, fuel, electricity, utensils, etc.; that the management exercises control over the standard in quality, quantity and the rate of the food items supplied to the workmen for whose benefit the canteen is established. Thus, these circumstances clearly indicate that the appellant has a complete control over the activities in respect of the canteen and the contractor has absolutely no discretion either in regard to the menu, quality and quantity of the food items much less the rate at which the same are supplied to the workmen. When the management of the appellant exercises such a complete control, the canteen shall be deemed to be run by the management itself. The appellant in any manner cannot controvert these facts. We do agree that the respondents have a strong case on merits. Since we have held that the High Court had no jurisdiction to entertain a petition under Article 226 of the Constitution, we would have set aside the order made by the High Court. However, in the special features of the case, although we do not agree with the High Court on the first question raised, we feel, after clarifying the legal position, that we sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present workmen was the same; that after the evidence was tendered by the workmen the appellant got the code changed and the appellant transferred the workmen from one place to another and that the amount to be surrendered by way of unpaid salaries had to be remitted back to the management. Thus the Tribunal held that these facts clearly indicated that the appellant exercised administrative, financial and disciplinary control over the workmen in question. The Tribunal held that no other material is required to hold them to be employees of the appellant. In those circumstances, the Tribunal passed an award that these workmen should be treated as employees of the appellant and they are entitled to payment of appropriate scales and designations in terms of Ex.W12 and W14 from 1.4.1979 with all consequential and attendant benefits of arrears of pay, etc. together with counting of entire service for the purpose of terminal benefits. Against this award, a writ petition was filed before the High Court. The High Court dismissed the same stating that it is covered by another matter. It is unnecessary to examine the contention whether the matter is covered by a subsequent decision or not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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