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TMI Blog2024 (5) TMI 1190X X X X Extracts X X X X X X X X Extracts X X X X ..... romotion of the employees. Writ Petition No. 844 of 2014 additionally raised issues of anomalies in the fixation of pay arising out of and for implementation of the report of the Justice Dharmadhikari Committee Constituted by the respondent No.1 i.e. Union of India(through its Ministry of Civil Aviation) to harmonize the differential service conditions of AIL and Indian Airlines Ltd, which came to be merged. Writ Petition Nos. 1770 of 2011 Filed on 14th June, 2011 and 1536 of 2013 Filed on 19th March, 2013, pertained to the delay in payment of wage revision arrears and the withdrawal of eight out of the seventeen allowances already paid to the employees retrospectively. In each of the writ petitions, violation of Articles 14, 16, and 21 of the Constitution of India, 1950, was pleaded. The Division Bench of Bombay High Court, vide common judgment and order dated 20th September, 2022 disposed of the above writ petitions denying relief as claimed therein on the ground of non-maintainability of the writ petitions owing to the intervening event of privatisation of respondent No. 3(AIL). Nevertheless, liberty was granted to the employee petitioners to seek their remedies in accordance wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s submitted that the right to seek remedy stands crystallised on the date of institution of proceedings and though subsequent events can be considered, it is a well settled tenet of law that such subsequent events can be looked at only to advance equity rather than to defeat it. Reliance in this regard was placed by learned senior counsel upon Pasupuleti Venkateswarlu v. Motor & General Traders (1975) 1 SCC 770; Beg Raj Singh v. State of U.P. and Ors. (2003) 1 SCC 726. He urged that different view is permissible only in exceptional circumstances and in no event can a party be divested of its substantive rights on account of such subsequent event as laid down in Rajesh D. Darbar and Others v. Narasingrao Krishnaji Kulkarni and Others (2003) 7 SCC 219. The relevant extract of Rajesh D. Darbar(supra) as relied upon by the learned senior counsel for the appellants is extracted hereinbelow: - "4. The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its importance to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unservice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ache [AIR 1927 PC 252 : 26 All LJ 371] )." 8. Reliance was also placed by the learned senior counsel on the judgment of Ashok Kumar Gupta & Ors. v. Union of India & Ors. (2007) SCC OnLine Cal 264, wherein the Division Bench of Calcutta High Court, after adverting to the extant principles concerning the maintainability of writ proceedings as on the date of the institution, held that an employer which had been privatised during the pendency of a writ appeal filed against the order rejecting the writ petition would continue to be amenable to writ jurisdiction under Article 226 of the Constitution of India. The relevant portion of Ashok Kumar Gupta(supra) relied upon is extracted hereinbelow: - "32. It is nobody's case that the writ petition was not maintainable when it was filed. The cause of action for filing the writ petition crystallized at a point of time when the respondent authority was, admittedly, subject to the writ jurisdiction. The said cause of action confers a vested right to the writ petitioners to have their grievances adjudicated in a writ proceeding. No one can contend that the writ petitioners have brought the present situation by their conduct. The change o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleadings. The evidence was given by affidavit. As a rule no cross-examination, no discovery, and so forth. But there were important safeguards. In particular, in order to qualify, the applicant had to get the leave of a judge. The statute is phrased in flexible terms. It gives scope for development. It uses the words "having regard to". Those words are very indefinite. The result is that the courts are not bound hand and foot by the previous law. They are to "have regard to" it. So the previous law as to who are - and who are not - public authorities, is not absolutely binding. Nor is the previous law as to the matters in respect of which relief may be granted. This means that the judges can develop the public law as they think best. That they have done and are doing." [ See The Closing Chapter by Rt. Hon. Lord Denning, p. 122] 17. There, however, the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty. The "public authority" for them means everybody which is created by statute - and whose powers and duties are defined by statute. So government departments, local authorities, police authorities, and statutory undertakings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Government as well as the University and the University directed to pay the teachers as per the award. The appellants refused to implement the award and the respondents filed a writ petition seeking a writ of mandamus and in the writ petition the appellants contended that the college managed by the Trust was not an "authority" coming within the purview of Article 12 of the Constitution and therefore the writ petition was not maintainable. This plea was rejected and this Court held that the writ of mandamus would lie against a private individual and the words "any person or authority" used in Article 226 are not to be confined only to statutory authorities and instrumentalities of the State and 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. 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." 11. Learned senior counsel further contended that when a private employer steps into t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced reliance upon the decision of the High Court of Gujarat in the case of Kalpana Yogesh Dhagat through Legal Heirs v. Reliance Industries Ltd. 2016 SCC OnLine Guj 10186, wherein a writ petition had been filed against Indian Petrochemical Corporation Ltd.("IPCL") in 2002 which came to be decided in the year 2016. In the intervening period, the IPCL was privatized and taken over by Reliance Industries Limited(RIL) in 2007. The pertinent issue that cropped up for consideration was whether the writ petition filed against IPCL was maintainable even after its privatization. Learned Single Judge HMJ J.B. Pardiwala (as his lordship then was) of the Gujarat High Court held that the writ petition was not maintainable. The relevant portion of Kalpana Yogesh Dhagat(supra) as relied upon is extracted hereinbelow:- "53. In the case in hand, before the writ application could be taken up for final hearing, the status of I.P.C.L. changed. The I.P.C.L. once a public sector enterprise is no longer in existence, the same has been taken over by the Reliance Industries Limited. At no point of time, the legality and validity of the amalgamation of the I.P.C.L. with the Reliance Industries Limited ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... post privatisation, respondent No. 3(AIL) does not perform any 'Public Function' and in any case running a private airline with purely a commercial motive can never be equated to performing a 'Public Duty'. 18. He further submitted that the issue is not that of a 'Right' but of a 'Remedy' i.e. dismissal of a writ petition filed by the appellants on the ground of maintainability would not lead to extinguishment of the rights of the appellants and only the forum for adjudication of their dispute would change. Any alleged violations of Articles 14 or 16 of the Constitution of India are simply grounds for claiming relief which can well be agitated before any other appropriate forum. 19. Learned senior counsel further submitted that appellants' rights, if any, are protected by the specific liberty granted to them by the High Court vide the impugned judgment and if a Court of competent jurisdiction was to hold in their favour, the same would be enforceable against the employer-respondent No. 3(AIL). 20. He further contended that the appellants employees approached the writ Court after significant delay, since the cause of action arose between 2007 to 2010 and captioned writ petitions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Larger Bench of the Supreme Court." ( emphasis supplied ) 25. In the case of Kalpana Yogesh Dhagat(supra), the learned Single Judge of the Gujarat High Court went on to uphold the preliminary objection regarding the maintainability of the writ petition against Reliance Industries Limited(RIL). The relevant excerpts from the said judgment are extracted hereinbelow: - "19. .....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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 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 on the Government of India at this stage. 59. I am not impressed by the submission of Mr. Bhatt that the writ applicant has no other alternative remedy, except invoking the writ jurisdiction of this Court. According to Mr. Bhatt, since the original writ applicant i.e. the employee has passed away, it will be legally impermissible for the legal heirs to file a civil suit for declaration for the purpose of challenging the order of dismissal from service. The legal heirs on record can definitely file a civil suit for declaration that the departmental inquiry was not conducted in a fair and transparent manner and the consequential order of dismissal is illegal. Section 14 of the Limitation Act would also save the situation. Section 14 of the Limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proceeding shall be taken into consideration for the purpose of limitation in case the petitioner choose any such remedy where the question of limitation would be relevant." ( emphasis supplied ) 28. Further, in the case of Beg Raj Singh(supra), this Court observed as below: - "7. .... 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...." ( emphasis supplied ) 29. It is thus, seen that various High Courts across the country have taken a consistent view over a period of time on the pertinent question presented for consideration that the subsequent event i.e. the disinvestment of the Government company and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate control may afford an indication that the corporation is a State agency or instrumentality. (SCC p. 508, para 15) (5) If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. (SCC p. 509, para 16) (6) 'Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference' of the corporation being an instrumentality or agency of Government. (SCC p. 510, para 18)" 40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia [Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : 1981 SCC (L&S) 258] are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be - whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nforcement of any of the fundamental rights and for any other purpose'. *** 20. The term 'authority' used in Article 226, in the context, must receive a liberal meaning like the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. 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. 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." ( emphasis supplied ) 36. Further, in the case of Federal Bank Ltd. v. Sagar Thomas ( 2003 ) 10 SCC 733 , this Court culled out the categories of body/persons who would be amenable to writ juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitions because the forum that is the High Court where the writ petitions were instituted could not have issued a writ to the private respondent which had changed hands in the intervening period. Hence, the question No.3 is also decided against the appellants. 40. Resultantly, the view taken by the Division Bench of the Bombay High Court in denying equitable relief to the appellants herein and relegating them to approach the appropriate forum for ventilating their grievances is the only just and permissible view. 41. We may also note that the appellants raised grievances by way of filing the captioned writ petitions between 2011 and 2013 regarding various service-related issues which cropped up between the appellants and the erstwhile employer between 2007 and 2010. Therefore, it is clear that the writ petitions came to be instituted with substantial delay from the time when the cause of action had accrued to the appellants. 42. It may further be noted that the Division Bench of Bombay High Court, only denied equitable relief under Article 226 of the Constitution of India to the appellants but at the same time, rights of the appellants to claim relief in law before the appropri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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