TMI Blog2018 (11) TMI 1407X X X X Extracts X X X X X X X X Extracts X X X X ..... ution, we do not find any hesitation in holding that CUPGL is an instrumentality of State and within the ambit of term 'other authorities' under Article 12 of Constitution of India it is a 'State' within Article 12. Question-(1), therefore, is answered accordingly. Relationship between Government (employer) and Government Servant (employee) is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. In the language of jurisprudence, 'status' is a condition of membership of a group, whereof powers and duties are exclusively determined by law and not by agreement between the parties concerned. Thus, where appointment and conditions of service are governed by Statute, relationship of 'employer' and 'employee' is that of 'status' and not a mere contract. However, in other cases, it is purely a contract of service resulting in a relationship of ordinary master and servant. In the present case also, relationship of employment between petitioner and CUPGL is purely and simply an ordinary contract of service which is not governed by any statute or statutory provision. In such case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice of the management that on the several occasions you have submitted forged Rail tickets for your official tours and claimed the expenses from the company. Please explain. B. Vehicle Loan Non Hypothecation After taking vehicle loan from the Company, you have now refused to provide any vehicle relates documents to the Company. This in itself a very serious offence, if you adopt to such acts of indiscipline, then the office decorum and rules would be flouted at every step. After providing you adequate notice, HR stopped your salary payment for April 2013. C. Financial irregularities attached as Annexure- A Please note the charges on your part are quite serious and grave in nature and tantamount to serious acts of gross misconduct as follows: Claiming reimbursement against forged Railway tickets. Gross violation in adopting financial C P guidelines. Misguiding superiors on tender files. Authorizing payment to contractors without verification. Providing misleading information to management MD DC. Financial irregularities Being a Manager C P in the Company, your aforesaid acts are of serious concern and casts a doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility in CUPGL has been undertaken by any of the Government; it does not perform any Governmental work and is not supported and financed by either of the Governments, therefore, writ petition under Article 226 of the Constitution against CUPGL is not maintainable. 8. On the factual aspects, it is said that petitioner was appointed by letter of appointment dated 09.04.2009, pursuant whereto, he joined on 08.05.2009. He was confirmed by letter dated 02.07.2010 with effect from 08.05.2009. Noticing certain financial as well as operational irregularities on the part of petitioner, a charge-sheet was served upon him, containing seven charges bearing numbers A to G along with Annexure-A indicating incidents of violation of procedural norms. An independent Inquiry Committee was constituted by Chairman, CUPGL comprised of General Manager (E P) and Senior Manager (Safety) of Mahanagar Gal Limited, Pune. Inquiry was conducted in which petitioner also submitted written submission on 19.06.2013 and made oral submissions. Based on inquiry report and also finding loss of confidence, Managing Director found petitioner unsuitable for continuance in service and terminated him by order dated 01. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Rejoinder Affidavit, it is stated that petitioner was never given any opportunity to appear in departmental inquiry pursuant to charge-sheet issued to him and no oral submissions were made by petitioner on 19.06.2013. 12. A Supplementary Rejoinder Affidavit has also been filed replying Supplementary Counter Affidavit stating that order of Central Information Commission placed on record along with Supplementary Counter Affidavit was rendered in a different set of facts and has no application to the present case. 13. In Writ Petition No. 54841 of 2013 (hereinafter referred to as Second Petition ), petitioner Subhash Verma was appointed as Chief Manager (O M) on 30.03.2010 and placed on probation for one year. He was served with charge sheet dated 24.05.2013. He submitted reply dated 19.06.2013 denying the charges. Thereafter, he was also required to appear at Kanpur Office through E-mail dated 20.06.2013 between 24.06.2013 to 28.06.2013 but no discussion took place. Again vide E-mail received on 25.06.2013 he was required to appear on 25.06.2013 when he found three persons sitting in Conference Room and also came to know that a private company namely, K.P.M.G., a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a deep and pervasive control, if not directly but indirectly. Petitioner s counsel submitted that since Central Government is a controlling authority having 100 per cent share holding in BPCL and GAIL which are in effect joint holding companies of CUPGL, therefore, it can be said safely that Central Government has absolute control over CUPGL and it is State within the meaning of Article 12 of Constitution. 17. The issue, when a Company can be said to be State within the meaning of Article 12 of Constitution, has been considered by Courts time and again in the last more than six decades. 18. Initially, in Rajasthan State Electricity Board, Jaipur Vs. Mohan Lal and others AIR 1967 SC 1857 , in the context of State Electricity Board, a statutory body constituted under Section 5 of Electricity Supply Act, 1948, this issue was raised, whether it is 'State' within the meaning of Article 12 of Constitution. Court said that a body which is performing certain public or statutory duties, such duties if carried out for the benefit of public, and not for private profit, then it will be a State within the meaning of Article 12. 19. In Sukhdev Singh and others Vs. Bhagat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l is particular to the body in question, and pervasive, the cumulative effect would establish that body as a State within the meaning of Article 12. Court also held that when control exercised is merely regulatory, whether under a Statute or otherwise, such control would not be adequate to render a body State within the meaning of Article 12 of Constitution. Court held that financial support of State, coupled with an unusual degree of control over the management and policies of a body, may lead to an inference that it is a 'State'. Additionally, other factors such as, whether the Company/Corporation performs important public functions, whether such public function(s) are closely related to governmental function, and whether such function(s) are carried out for the benefit of the public, etc. are also relevant factors to determine whether such body is an State within the meaning of Article 12 of Constitution. 23. In M/s. Zee Telefilms Ltd. and another Vs. Union of India and others (2005) 4 SCC 649, Court examined whether Board of Cricket Control of India is a State within the meaning of Article 12 of Constitution. Answering this issue in negative, Court held: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viding line unless, of course, the circumstances of the day require it to do so. 25. Considering as to what will be the sovereign functions and whether it is extended to include all welfare activities, initially it was held that functions approved being sovereign are defence of the Country, raising of armed forces, making peace or waging war, foreign affairs, the power to acquire and retain territory etc., in Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and others (1978) 2 SCC 213 , Court held that these terms are used to define the term governmental functions , despite the fact that there are difficulties that arise while giving such a meaning to the said terms, for the reason that the Government has now entered largely in the field of industry. The question was, what is definition of industry . While answering the above question, Court held that only those services which are governed by separate Rules and Constitutional provisions such as Articles 310 and 311, should strictly speaking be excluded from the sphere of industry by necessary implication. Subsequently it was also held that every governmental function need not be sovereign. State activities are multifa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant to determine whether a body is 'State' within the meaning of Article 12 of Constitution of India or not, Court in Balmer Lawrie and Company Limited and others Vs. Partha Sarathi Sen Roy and others (supra) said, whether Company/Corporation is an instrumentality or an agency of the State, can be examined by looking to the following aspects: (A) if the body carries on business for the benefit of the public; (B) whether the entire share capital of the company is held by the Government; (C) whether administration of body is in the hands of a Board of Directors appointed by the Government; (D) if Board of Directors has been appointed by the Government, whether such Board is completely free from governmental control in the discharge of its functions; (E) whether the body enjoys monopoly status; (F) whether the functions carried out by the Company/ Corporation are closely related to governmental functions, (G) whether a department of Government has been transferred to such body; (H) whether the body is financially, functionally and administratively under the control of the Government. 29. Looking to the exposition of law discussed above and po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1963 (hereinafter referred to as Act, 1963 ) and, therefore, no remedy under Article 226 shall be available since employee, if complains about wrongful termination of service, then must avail remedy in common law by claiming damages. 31. As we have already said that CUPGL even if taken to be a 'State' within the meaning of Article 12 of Constitution, this by itself would not mean that petitioner can claim status of a Government Servant or holding a post governed by 'status'. Nature of engagement/ appointment of petitioner is not to be governed by 'status' but by a 'contract of service' entered into between master and servant. A distinction between an appointment under a contract and status was noticed and explained by Supreme Court in Roshan Lal Tandon Vs. Union of India AIR 1967 SC 1889 . Court held that when a matter is governed by status, the employee has no vested contractual rights in regard to the terms of service but where employment is purely in the realm of a simple contract of employment, it is strictly governed by terms and conditions of employment settled between the parties. To remind the difference between 'status' and & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic servant who is dismissed from service in contravention of Article 311 continues to remain in service, even though by doing so the State is in effect forced to continue to employ the servant whom it does not desire to employ. Similarly under the Industrial Law, jurisdiction of the Labour and Industrial Tribunals to compel the employer to employ a worker whom he does not desire to employ, is recognised. The Courts are also investigated with the power to declare invalid the act of a statutory body, if by doing the act the body has acted in breach of a mandatory obligation imposed by statute, 34. Again in para 25 of the judgment, Court held: The position in law is that no declaration to enforce a contract of personal service will be normally granted. But there are certain well-recognized exceptions to this rule and they are: To grant such a declaration in appropriate cases regarding (1) a public servant, who has been dismissed from service in contravention of Article 311. (2) Reinstatement of a dismissed worker under Industrial law by Labour or Industrial Tribunals. (3). A statutory body when it has acted in breach of a mandatory obligation, imposed by statute . 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of reinstatement for the reason that in such case, Court keeps employer within the limits of its statutory powers. The above view has been reiterated in Executive Committee of Vaish Degree College, Shamli and others Vs. Lakshmi Narain and others AIR 1976 SC 888 (paras 9, 10, 13 and 17); Smt. J. Tiwari Vs. Smt. Jawala Devi Vidya Mandir and others, AIR 1981 SC 122 (paras 4 and 5); and Life Insurance Corporation of India Vs. Escorts Ltd., and others AIR 1986 SC 1370 (paras 101, 102). Similar view has been taken by this Court also in A.K. Home Chaudhary Vs. National Textile Corporation U.P. Ltd., Kanpur 1984 UPLBEC 81; B.M. Varma Vs. State of U.P. and others 2004 (4) AWC 2866; and Vivek Kumar Mishra and others Vs. State of U.P. and others, 2008(4) ESC 2811 . 39. Recently also, in Kailash Singh Vs. The Managing Committee, Mayo College, Ajmer anD others. (2018) 10 SCALE 638 , where dispute related to termination of an employee of Mayo College, Court held that employment was governed by simple contract of employment and, hence, no relief of reinstatement can be granted, but employee, if wrongfully terminated, may claim damages. 40. Following the above authorities, same ..... X X X X Extracts X X X X X X X X Extracts X X X X
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