final respondent
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THE TABLE OF CONTENTS
CONTENTS PAGE
THE TABLE OF CONTENTS Page 1 of 32
THE INDEX OF AUTHORITIES Page 2 of 32
THE STATEMENT OF JURISDICTION Page 7 of 32
THE STATEMENT OF FACTS Page 8 of 32
THE STATEMENT OF ISSUES Page 10 of 32
THE SUMMARY OF ARGUMENTS Page 11 of 32
THE ARGUMENTS ADVANCED Page 13 of 32
THE PRAYER Page 32 of 32
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S No.
INDEX OF AUTHORITIES
TABLE OF INDIAN CASES
Name of Case Pg No.
1. Lt. Governor Of Delhi & Ors vs V.K. Sodhi & Ors 2007 AIR 2885 13
2. Prakash Rekhi v.Union of India & Anr., (1981)2 S.C.R. 111 13
3. B.S. Minhas v.Indian Statistical Institute & Ors(1983)4 S.C.C. 582 13
4. Manmohan Singh Jaitla v. Commissioner, Union Territory of Chandigarh
& Ors.(1984) Supp. S.C.C. 540
13
5. Workmen of Hindustan Steel Ltd. & Anr. v.Hindustan Steel Ltd. &
Ors.(1984) Supp. S.C.C. 554, 560
13
6. K. Ramachandra Iyer & Ors. v.Union of India & Ors.(1984) 2 S.C.R.
141
13
7. A.L. Kalra v. Project and Equipment Corporation of India Ltd., [1984] 3
S.C.R. 316
13
8. West Bengal State Electricity Board & Ors.v. Desh Bandhu Ghosh &
Ors.(1985) 3 S.C.C. 116
13
9 Praga Tools Corporation v. C.A. Imanual & Ors., (1969) 3 S.C.R 773 13
10. Sukhdev Singh & Ors. v.Bhagat Ram Sardar Singh Raghuvanchi &
Anr.,(1975) 3 S.C.R. 619
13
11. Ramana Dayaram Shetty v.The International Airport Authority of India
& Anr., (1979) 3 S.C.R. 1014
13,19,20,21
12 Managing Director, Uttar Pradesh Ware Housing Corporation & Anr. v.
Vinay Narain Vajpayee,(1980) 2 S.C.R. 773
13
13 Ajay Hasia etc. v.Khalid Mujib Sehravardi & Ors. etc., (1981) 2 S.C.R.
79;
13,20
14 Pradeep Kumar Biswas & Ors. v.Indian Institute of Chemical Biology &
Ors(2002) 5 SCC 111
13,20
15 Chander Mohan Khanna v.National Council Of Educational Research
And training And Ors1992 AIR 76, 1991 SCR Supl.
13
16 Integrated Rural Development Agency v.Ram Pyare Pandey1995 Supp.
(2) S.C.C. 495
30
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17 Smt. J. Tiwari v.Jawala Devi Vidya Mandir and Ors1979 (1) S.L.R.
(S.C.) 614
14
18 Executive Committee of Vaish Degree College, Shamli and Ors. v.
Lakshmi Narain and OrsAIR 1976 S.C. 888
14
19 R.D., Sharma v.St. John's High School and Ors2002 (3) R.S.J. Pb. & Hy.
398.
14
20 All India ITDC Workers Union & Ors.v.ITDC & others(2006) 10 SCC
66
14
21 G.Bassi Reddy v.International Corps Research Institute(2003) 4 SCC
255
14
22 Balco Employees Unionv.Union of India & Another(2002) 2 SCC 333 14
23 Agricultural Produce Market Committee vs. Ashok Harikunj &
Another(2000) 8 SCC 61
14
24 Zee Telefilms Ltdv Union of IndiaAIR 2005 SC 2677 14
25 Ujjam Baiv. Union of India(1963) l SCR 778 14
26 University Of Madras v. Southern BalAIR 1954 Madras 67 15
27 Krishna Gopalv.Punjab UniversityAIR 1966 Punjab 34 15
28 Carlsbad Mineral Water Mfg. Co. Ltd. v.Jagtiani. AIR 1952 Cat 315 15
29 C. M. Khanna v.NCERT AIR1992 SC 76 15
30 Workmen Of Pepsico India Holdings v.Deputy Labour Commissioner,
(2002)1 SCC 356
15
31 Kisan Sahkari Chini Mills Ltd. v.Rakesh Chandra Gangwar And
Ors(2004) 1 SCC 45
15
32 Purshottam Das Tandon v.Military Estate Officer AIR 2000 All 127 15
33 Smt. Biran Devi v.Sechu Lal, 2001 (4) AWC 2659 15
34 Gajendra Kumar Sharma v.General Manager,1999 (4) AWC 2.149
(NOC)
15
35 Dr. Anand Kumar Gupta v.Rajghat Education Centre And Ors. on
(2002)5 SCC 56
15
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36 Bihari Lal Chauhan v.Director Of Factories (2003)(2)AWC 1069 15
37 Air Vice Marshal J.S. Kumar v. Governing Council Of Air Force And
Another (2006)3 SCC 678
15
38 The Management Of Sivananda v. Sivananda Steels Employees (2005)1SC 66
15
39 Devendrajeet Vadra v. State Of U.P. And Ors. (2003)(4)AWC 2900 15
40 Dr. A.K. Gupta v.Rajghat Education Centre, 2003 (1) AWC 503 15
41 General Manager, Modipon Fibre Co. v.Narendra Pal 2003 ALJ 980 15
42 Gopi Krishna Srivastava v.Deputy Housing (2002) (1) AWC 604 15
43 Estate Pvt. Ltd. v.N.D.M.C. (2005) (1) MLJ 453 15
44 Ravinder Singh v.Principal, Parker Inter College( 1998) (4) AWC 160 15
45 State Of U.P. And Ors.v. Labour Court And Ors (1997) 7 SCC 463 15
46 Simco Rubber Product (P.) Ltd. v.Bank Of India (2003) 51 SCL 272 All 15
47 Executive Committee of Vaish Degree College, Shamli and Others v.
Lakshmi Narain & Ors (1976)2 SCR 1006
15
48 Deepak Kumar Biswas v.Director of Public Instructions.1987 (2) SCC
252
15
49 VST Industries Ltd. v.Workers Union2001 (1) SCC. 298 16
50 Shri Andi Mukta Sadguru Trust v.V.R. Rudani 1989 AIR 1607 16
51 Jatya Pal Singh & Ors. v. Union Of India & OrsWPN.2652 of 2007 16
52 S.S. Rana v. Register Cooperative Societies2006 AIR SCW 3723 18
53 K. Vasudevan Nair v. Union of India1991 Supp.(2) SCC 134 18
54 Sindhi Education Society & Anr. v.Government (NCT of Delhi)(2010) 8
SCC 49
18
55 Binny Ltd. & Anr v.V. Sadasivan & Ors (2003) 4 SCC 255 21
56 Visva Bharati v.Smt. Rakhi Debnath And Ors.(1996) 1 CALLT 51 HC 21,29
57 P. Electricity Board v.Regional Provident Fund (2004) IILLJ 40 MP 21
58 Basu Distributors Pvt. Ltd. v.Income Tax Officer 2007 292 ITR 29 Delhi 21
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59 Gita Theatres And Anr. v.Municipal Corporation (1998) 3 GLR 2591 21
60 A.B. Joglekar And Anr. v.Debts Recovery Tribunal And Anr. III (2004)
BC 41, 2002 (5) MPHT 187
21
61 Calcutta Municipal Corporation. v.M/S. Bala Bestos India Ltd(1998) 2
CALLT 249 HC, 1998 (1) CHN 492
21
62 Radhakrishna Agarwal v.State of Bihar(1977) 3 SCC 457 21
63 Poonam v.Sumit TanwarAIR 2010 SC 1384 22
64 P.V. Narsimha Rao . v.StateAIR 1998 SC 2120 22
65 Municipal Corporation Of Delhi v. R.P. Khaitan And Anr.1995 IVAD
Delhi 883, 1995 (35) DRJ 604
22
66 Dalco Engg. (P) Ltd. v.Satish Prabhakar Padhya(2010) 4 SCC 378 22
67 General Manager, Kisan Sahkar Chini Mills Limited, Sultanpur, UP v.
Satrughan Nishad and Ors.(2003) 8 SCC 639
22
68 Mrs. K. Naqvi v.State of Punjab and Ors2004 ILR 2 (Punjab and
Haryana) 11
22
69 DAV Managing Committee v. Surender Rana (2011) 192 SC 22
70 Sri Ramdas Motor Transport Ltd. v.Tadi Adhinarayana Reddy And Ors.
AIR 1997 SC 2189
22,27
71 Shyam Kishore and others v.Municipal Corporation of DelhiAIR 1991
Delhi 104
22
72 Dalco Engg. (P) Ltd. v.Satish Prabhakar Padhya(2010) 4 SCC 378 23
73 Sonia v Oriental Insurance Co. Ltd,Appeal (civil) 3521 of 2007 23
74 Narayana Rao and Anr. v. State of A.P. and AnrAIR 1987 AP 57 27
75 Indra Sawhneyetc. Vs. Union of India AIR 1993 SC 477 28
76 GRIDCO Ltd.V. Sadananda DoloiAIR 2012 SC 137 28
77 Triloki Nath and Anr. v. State of Jammu & Kashmir and Ors. (1969) 1
SCR 103
28
78 M. R. Balaji v. State of Mysore ((1963) Supp 1 SCR 439 29
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79 State of A. P. v. P. SagaAIR 1975 SC 563 29
80 State of Uttar Pradesh v. Pradip Tandon and Ors1985 SC1495 29
81 Kailash Chand Sharma v. State of Rajasthan, (2002) 6 SCC 562 29
82 New India Co-Op. Housing Society v.Municipal Corpn. of Greater
(2008) 9 SCC 694
22
INTERNATIONAL CASES
1 Davy v. Spelthone[1984]AC 262 17
2 R.V. East, Bershire Health Authority[1987] 2 All ER 909 17
3 R. v. Lewisham Union[1897] 1 Q.B. 498, 501 17
4 Reilly v.Mackman[1983] 2 AC 237 17
LIST OF BOOKS and ARTICLES
1.The Hindu, Public Private Partnership, Monday, Feb 18, 2002
16
2.
Mr. Detan "Why Administrators should be bound by their policies" (Vol.
17) 1997 Oxford Journal of Legal Studies,
28
3.
Article 12: Scope as expanded by judiciary www.legalservices.in
13
4. B. I. Hansaria Tripathi, Writ Jurisdiction under the Constitution
34(Universal, New Delhi, 2nd edn., 2008).
19
5 Mc. Clelland v.Northern Ireland General Health Services Boards[1957]
1 W.L.R. 594
17
6 Ridge v. Baldwin[1964]A.C. 40 17
7 Short v.Poole Corporation[1926] Ch. 66 17
8 Attorney- General v.St. Ives R.D.C[1961] 1 Q.B. 366 17
9. R. v. IRC, ex p Preston[1985] AC 835 30
10. Hughes vs. Department of Health and Social Security (HL)1985 AC 776
(788)
31
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STATEMENT OF JURISDICTION
THE PETITIONERS IN THE PRESENT CASE HAS BEEN EMPOWERED BY ARTICLE
32 AND ARTICLE 136 OF THE CONSTITUTION OF INDISTANTO INITIATE THE
PRESENT PROCEEDINGS IN THE HONBLE SUPREME COURT OF INDISTAN.
ARTICLE 32:RIGHT TO CONSTITUTIONAL REMEDIES
1) THE RIGHT TO MOVE THE SUPREME COURT BY APPROPRIATE PROCEEDINGSFOR THE ENFORCEMENT OF THE RIGHTS CONFERRED BY THIS PART IS
GUARANTEED.
2) THE SUPREME COURT SHALL HAVE POWER TO ISSUE DIRECTIONS OR ORDERSOR WRITS, INCLUDING WRITS IN THE NATURE OF HABEAS CORPUS,
MANDAMUS, PROHIBITION, QUO WARRANTO AND CERTIORARI, WHICHEVER
MAY BE APPROPRIATE, FOR THE ENFORCEMENT OF ANY OF THE RIGHTS
CONFERRED BY THIS PART.
ARTICLE 136 (1) NOTWITHSTANDING ANYTHING IN THIS CHAPTER, THE
SUPREME COURT MAY, IN ITS DISCRETION, GRANT SPECIAL LEAVE TO
APPEAL FROM ANY JUDGMENT, DECREE, DETERMINATION, SENTENCE OR
ORDER IN ANY CAUSE OR MATTER PASSED OR MADE BY ANY COURT OR
TRIBUNAL IN THE TERRITORY OF INDISTAN.
THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMIT TO THE
JURISDICTION OF THE HONBLE SUPREME COURT IN THE PRESENT MATTER.
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STATEMENT OF FACTS
I
The Republic of Indistan is an emerging welfare state inSouth Asia. Due to its economic
diversification it holds great potential for economic investments by developed nations.
Constitution of Indistan lays down the framework defining fundamental political principles,
establishing the structure, procedures, powers and duties, of the government and spells out
the fundamental rights, directive principles and duties of citizens similar to the Republic of
India.
II
A new State run corporate entity namely Indistan International Communication Limited
(IICL) in year 1981 which had a kind of monopoly in respect of International Long
Distance Service i.e. ILDS and international telecommunication services was created by the
Govt. of Indistan in 1947.
III
In pursuance of New Economic Policy (NEP) 1993, which promoted Public- Private
Partnership (PPP), the republic of Indistan started disinvesting wide range of Public Sector
Units (PSU) which were promoted and controlled by State including IICL.
IV
In year 2000, the Govt. of Indistan divested itself of the shares of IICL in favour of a group ofcompanies floated by XYZ Corporation Pvt. Ltd. (a corporate entity of Indistan) after
following the due process according to its disinvestment policy. As part of disinvestment
package the new management the new management ha the custody of all the all the
infrastructural components. However, even after disinvestment, the Govt. of Indistan still
remains the largest single stakeholder as per the share- holding composition.
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VI
As per the share holding agreement and share purchase agreement the Government of
Indistan ensured that none of the employees should be retrenched for a period of 3 year from
the disinvestment and that the Govt. has a first right to refuse on future sell of shares by any
strategic partner wishes to sell off the stakes in IICL respectively.
VII
Thereafter in 2001 an Office Memorandum (OM) dated 13th August and another
recommendation dated 03rd May by the Government of Indistan ensured job security and
social security in case where the Public Sector Units and Govt. enterprises are being
disinvested.
VIII
The new Management of IICL namely XYZ Corp. Limited, in year 2009 terminated 20
managerial employees (who were selected by the Indistan Public Service Commission and
appointed by the President of Indistan) after paying 3 monthssalary in lieu of notice period
terming their employment as merely contractual. Majority of them belonged to backward
class of citizens.
IX
Writ petitions were filed by an association of employees namely XYZ ShoshitEmployees
Welfare Association before the High Court of Indistan alleging discrimination by the IICL &
XYZ Corp. Ltd and seeking reinstatement and specific enforcement of OM dated 13th
August 2001 against the Govt. of Indistan. But the Indistan High Court dismissed the writpetition under and termed the relationship as merely contractual in nature.
X
All Indistan Backward Class (affected by disinvestment) Employee Association has
approached the Supreme Court of Indistan seeking the specific enforcement of
recommendation dated 03rd May 2001 by way of a Writ Petition under Article 32 of the
Constitution.
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THE STATEMENT OF ISSUES
THE FOLLOWING ISSUES FOR CONSIDERATION HAVE COME UP BEFORE THE
HOBBLE SUPREME COURT OF INDISTAN.
I. WHETHER THE RESPONDENT COMPANY IS AMENABLE TO WRITJURISDICTION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDISTAN?
A. WHETHER IICL & ITS NEW MANAGEMENT IS STATE UNDER ARTICLE 12OF THE CONSTITUTION OF INDISTAN?
B. WHETHER IICL & ITS NEW MANAGEMENT IS PERFORMING PUBLIC-FUNCTION?
II. WHETHER TERMINATION OF EMPLOYEES WAS JUSTIFIED AND THERECOMMENDATIONS OF MINISTRY OF SOCIAL JUSTICE AND
EMPOWERMENT COULD BE SPECIFICALLY ENFORCED?
A. WHETHER THE TERMINATION OF EMPLOYEES WAS ARBITRARY ANDOPPOSED TO RULES OF NATURAL JUSTICE?
B. WHETHER THE ENFORCEMENT OF CONSTITUTIONAL RIGHTS IN TERMSOF AFFIRMATIVE ACTION IS A LEGITIMATE EXPECTATION AND THE
RECOMMENDATION BY THE MINISTRY OF SOCIAL JUSTICE AND
EMPOWERMENT SHOULD BE SPECIFICALLY ENFORCED?
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SUMMARY OF ARGUMENTS
I. WHETHER IICL & ITS NEW MANAGEMENT XYZ CORP. LTD. ISAMENABLE TO WRIT JURISDICTION?
A. IICL & Its New Management is not amenable to writ jurisdiction because afterdisinvestment the respondent company has become a private entity and the actions of the
State or an instrumentality of the State which do not properly belong to the field of publiclaw but belong to the field of private law are not liable to be subjected to judicial review.
B. Since the year 2000, Government of Indistan holds only 31 % shares of IICL. Therefore,it can be safely concluded that on the basis of the shareholding, the Government of India
would not be in control of the affairs of IICL. IICL cannot be declared as a State or other
authority within the meaning of Article 12 of the Constitution of Indistan as it does not
fall within the well recognized parameters of state under Article 12.
C. In the instant case the respondent company is a purely private entity and it is not boundby the recommendation dated 3rd May, 2001 of the Ministry of Social Justice and
Empowerment, Government of Indistan. It is just and fair that employees be given
enough time to seek alternative source of livelihood.
D. An alternative and equally efficacious remedy is open to a litigant, he should be requiredto pursue that remedy and not invoke the special jurisdiction of the High Court to issue a
prerogative writ.
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II. WHETHER TERMINATION OF EMPLOYEES WAS JUSTIFIED AND THERECOMMENDATIONS OF MINISTRY OF SOCIAL JUSTICE AND
EMPOWERMENT COULD BE SPECIFICALLY ENFORCED?
A. The termination of services of the employees was done in the year 2009 which was nineyears after the date of disinvestment. The termination of employees was not in violation of
the share purchase and share-holding agreement and the new management of IICL was well
within their bounds to terminate the services of such employees. Hence, the action of
respondent was not arbitrary.
B. The respondent company is a purely private entity. Therefore, it is not bound by therecommendation dated 3rdMay, 2001 of the Ministry of Social Justice and Empowerment,
Government of Indistan.
C. The new management of IICL being a purely private entity is not bound by theconstitutional mandates of the state and is free to choose whether to continue utilizing the
service of an employee or to terminate such service, based on a contract.
D.The purpose of serving a notice prior to the termination of service is not to leave theemployee suddenly in lurch with no resources. It is just and fair that employees be given
enough time to seek alternative source of livelihood.
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THE ARGUMENTS ADVANCED
A.WHETHER IICL & ITS NEW MANAGEMENT XYZ CORP. LTD. IS AMENABLETO WRIT JURISDICTION?
The answering respondent reverentially submits that IICL & its new management is not
amenable to writ jurisdiction and the high court order ought not to be set aside.
1. THE PETITIONER DOES NOT HAVE THE LOCUS STANDI TO FILE A WRITAGAINST THE RESPONDENT AS IT IS NOT A STATE WITHIN THE MEANING
OF ARTICLE 12 OF THE CONSTITUTION OF INDISTAN.
In the classical words of P.K. BALASUBRAMANYAN, J1: As the decisions of this Court
show2, there is no simple litmus test, to determine whether an entity is a State or other
authority within the meaning of Article 12 of the Constitution of India. What is clear from the
decisions is that the various facets of the foundation and the working of the entity would be
relevant in determining the question in the context of the duties entrusted to it or taken up by
it for performance. It is in that context that in the seven judges Bench decision in Pradeep
Kumar Biswas & Ors. v. Indian Institute of Chemical Biology & Ors 3,it was held that
expanding dimension of 'the State' doctrine through judicial wisdom ought to be accompanied
by wise limitations else the expansion may go much beyond what even the framers of Article
12 may have thought of.
1Lt. Governor Of Delhi & Ors vs V.K. Sodhi & Ors 2007 AIR 2885
2Prakash Rekhi v.Union of India & Anr., (1981)2 S.C.R. 111;B.S. Minhas v.Indian Statistical Institute & Ors
(1983)4 S.C.C. 582; Manmohan Singh Jaitla v. Commissioner, Union Territory of Chandigarh & Ors. (1984)
Supp. S.C.C. 540; Workmen of Hindustan Steel Ltd. & Anr. v.Hindustan Steel Ltd. & Ors.(1984) Supp. S.C.C.
554, 560;P.K. Ramachandra Iyer & Ors. v.Union of India & Ors. (1984) 2 S.C.R. 141; A.L. Kalra v. Project
and Equipment Corporation of India Ltd., [1984] 3 S.C.R. 316; West Bengal State Electricity Board & Ors. v.
Desh Bandhu Ghosh & Ors.(1985) 3 S.C.C. 116; Praga Tools Corporation v. C.A. Imanual & Ors., (1969) 3
S.C.R. 773; Sukhdev Singh & Ors. v. Bhagat Ram Sardar Singh Raghuvanchi & Anr.,(1975) 3 S.C.R. 619;
Ramana Dayaram Shetty v. The International Airport Authority of India & Anr. , (1979) 3 S.C.R. 1014;Managing Director, Uttar Pradesh Ware Housing Corporation & Anr. v. Vinay Narain Vajpayee, (1980) 2
S.C.R. 773;Ajay Hasia etc. v.Khalid Mujib Sehravardi & Ors. etc., (1981) 2 S.C.R. 79;
3(2002) 5 SCC 111
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1.1.The respondent deferentially submits that the majority summed up the position in paragraph40 thus: 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
must be pervasive. If this is found then the body is a State within Article 12. On the other
hand, when the control is merely regulatory whether under statute or otherwise, it would not
serve to make the body a State. The question is Whether IICL can be said to be financially,
functionally and administratively dominated by or under the control of the Government. It
has to be noted that financially majority of shares are held by XYZ corp. Ltd, in the matter of
administration in IICL, the New Management is supreme. The administration is also
completely with the IICL & its New Management. Therefore the governmental interference
or control financially, functionally or administratively, in the working of the Company is out
of the question. Hence, it can be safely determined that respondent company is not amenable
to writ jurisdiction. To Buttress this contention inspiration is drawn from the case of Chander
Mohan Khanna v.National Council Of Educational Research And training And Ors4wherein
these were the aspects taken note of to come to the conclusion that NCERT is not a State or
other authority within the meaning of Article 12 of the Constitution of India. No doubt, in
Chander Mohan Khanna5
, the Bench noted that the fact that education was a State function
could not make any difference.
1.2.It is reverentially submitted that the Respondent-company is a private body as it is not underthe control of the Government. The employment of the Petitioner in the company was purely
a private contract entered into between the Master and Servant and even if its breach is
assumed to be wrongful, yet the Petitioner is not entitled to reinstatement as it may at the
best, give cause of action to them to claim damages in appropriate proceedings. It is further
submitted that even if the company is performing public duty of imparting
Telecommunication services, the action in employing managers or other employees or
governing their service conditions does not constitute a part of the aforementioned public
duty. Therefore, neither the writ petition is maintainable against Respondent nor the
Petitioner is entitled to reinstatement into service. To substantiate further the Counsel for
41992 AIR 76, 1991 SCR Supl. (1) 165; Lt. Governor of Delhi and Ors .v.V.K. Sodhi and Ors. AIR 2007 SC
2885
5ibid
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Respondent place reliance upon Integrated Rural Development Agency v. Ram Pyare
Pandey,6;Smt. J. Tiwari v. Jawala Devi Vidya Mandir and Ors.7, Executive Committee of
Vaish Degree College, Shamli and Ors. v.Lakshmi Narain and Ors.8, R.D., Sharma v.St.
John's High School and Ors.9, as well as the judgment inAndi Mukta's case10. Furthermore it
is reiterated that the Government is not controlling the Respondent-company therefore; the
State has nothing to do with the private action of the Respondent Company in the matter of
appointment and/or termination of its employees.
1.3.The answering respondent most respectfully submits that the tests for determining as towhether a particular body would fall within the definition of State or other authority have
been well defined by this Court in array of decisions and the law on the point is well settled.
Therefore, there is no scope for enlarging the time tested definitions rendered by this Court.
To buttress this assertion reliance is placed upon All India ITDC Workers Union & Ors.v.
ITDC & others11;Pradeep Biswas v. Indian Inst. of Chemical Biology12; G.Bassi Reddy v.
International Corps Research Institute 13 ; Balco Employees Union v. Union of India &
Another14;Agricultural Produce Market Committee vs. Ashok Harikunj & Another15and also
Zee Telefilms Ltd v Union of India16 in which the court by majority of 3 to 2 declined to
accept Board Of Control For Cricket In India(-a society registered under the Tamil Nadu
Society Registration Act,1975 as the state under article 12. Although the majority followed
Pradeep Biswas and earlier case on agency or instrumentality test and also recognised that
61995 Supp. (2) S.C.C. 495
71979 (1) S.L.R. (S.C.) 614
8AIR 1976 S.C. 888
9
2002 (3) R.S.J. Pb. & Hy. 398.10
1989 AIR 1607; G. Bassi Reddy v. International Crops Research Institute and Anr (2003) 4 S.C.C. 225
11(2006) 10 SCC 66
12Supra at pg 1
13(2003) 4 SCC 255
14(2002) 2 SCC 333
15(2000) 8 SCC 61
16, AIR 2005 SC 2677; c.f. V. N Shuklas, Constitution of India 53 (Eastern Book Company,Lucknow)
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some of the fundamental rights are available even against non state action including
individuals, it curiously held that the pre-requisite for the enforcement of a fundamental
right under article 32 is that the violator of that right should be a State first. ) In Ujjam Baiv.
Union of India17the Supreme Court rejected the principle of ejusdem generis .It observed that
there is no common genus between the authorities mentioned in Article 12.18InUniversity Of
Madras v. Southern Bal19The expression other authority did not include the university as it
did not discharge governmental function-its purpose being to promote education. It was also
observed that it was only a state aided institution and not state maintained. In Krishna Gopal
v.Punjab University20the Punjab high court took the same stand.21.
1.4.Furthermore it is submitted that IICL is a private company against which no writ ofmandamus can be issued. In several decisions, it has been held that a writ does not ordinarily
lie against private bodies 22 To augment this contention, the counsel would like to place
dependence upon two decisions of this Court: (a) Executive Committee of Vaish Degree
College, Shamli and Others v. Lakshmi Narain & Ors.23,and (b) Deepak Kumar Biswas v.
Director of Public Instructions.24In the first of the two cases, the respondent institution was a
17(1963) l SCR 778
18Article 12:Scope as expanded by judiciary available at http://www.legalserviceindia.com/article/l271-Article-
12.html (Visited on July 15, 2013)
19AIR 1954 Madras 67
20AIR 1966 Punjab 34
21B. I. Hansaria Tripathi, Writ Jurisdiction under the Constitution 34(Second edn.)
22Praga Tools Corp. v.Imanuel. AIR 1969 SC 1306; Carlsbad Mineral Water Mfg. Co. Ltd. v.Jagtiani. AIR
1952 Cat 315 ; C. M. Khanna v. NCERT AIR1992 SC 76; Workmen Of Pepsico India Holdings v. Deputy
Labour Commissioner, (2002)1 SCC 356, Kisan Sahkari Chini Mills Ltd. v. Rakesh Chandra Gangwar And
Ors(2004) 1 SCC 45;Purshottam Das Tandon v.Military Estate Officer (2000); Smt. Biran Devi v.Sechu Lal,2001 (4) AWC 2659, Gajendra Kumar Sharma v. General Manager,1999 (4) AWC 2.149 (NOC) : 1999 (3)
UPLBEC 2452; Dr. Anand Kumar Gupta v.Rajghat Education Centre And Ors. on (2002)5 SCC 56; Bihari Lal
Chauhan v.Director Of Factories And Anr.,(2003); Air Vice Marshal J.S. Kumar v. Governing Council Of Air
Force And Another (2006)3 SCC 678;The Management Of Sivananda v. Sivananda Steels Employees (2005)1
SC 66;Devendrajeet Vadra v. State Of U.P. And Ors. (2003); Dr. A.K. Gupta v.Rajghat Education Centre,
2003 (1) AWC 503; General Manager, Modipon Fibre Co. v. Narendra Pal 2003 ALJ 980, Gopi Krishna
Srivastava v.Deputy Housing (2002);Ralli Estate Pvt. Ltd. v. N.D.M.C. (2005);Ravinder Singh v.Principal,
Parker Inter College( 1998); State Of U.P. And Ors.v. Labour Court And Ors. (1997); New India Co-
Op.Housing Society v.Municipal Corpn. of Greater (2008);Simco Rubber Product (P.) Ltd. v.Bank Of India(2003)
23(1976)2 SCR 1006
241987] 2 SCC 252
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Degree College managed by a registered co-operative society. A suit was filed against the
college by the dismissed principal for reinstatement. It was contended that the Executive
Committee of the college which was registered under the Co-operative Societies Act and
affiliated to the Agra University (and subsequently to Meerut University) was a statutory
body. The importance of this contention lies in the fact that in such a case, reinstatement
could be ordered if the dismissal is in violation of statutory obligation. But this Court refused
to accept the contention. It was observed that the management of the college was not a
statutory body since not created by or under a statute. It was emphasised that an institution
which adopts, certain statutory provisions will not become a statutory body and the dismissed
employee cannot enforce a contract of personal service against a non-statutory body.
1.5.A writ under Article 226 can lie against a 'person' if it performs a public function ordischarges a public or statutory duty 25 .Although, it is not easy to define what a public
function or public duty is, it can reasonably be said that such functions are similar to or
closely related to performance of obligations owed by a company towards its workmen or to
resolve any private disputes26. To buttress this contention attention is directed towards the
Judgement in Shri R.D. Sharma v.St. John'S High School And Ors27wherein it was held that:
If the controversy involved in a particular writ petition is purely a service matter pertaining
to the service conditions of a private contract, in such a situation if there is any breach, the
High Court will not issue a mandate under Article 226 of the Constitution. The distinction, in
my opinion, is patent and clear. In the present case the alleged cause of action arose to the
Petitioner when his services had been terminated in an illegal manner without adopting the
principles of natural justice. This is an alleged breach of contract of service on the part of St.
John's High School which is a private institute not even aided by the Government. In such
eventuality the remedy of the Petitioner lies somewhere else either under the general law or
he may file a suit for damages in the competent court of jurisdiction.
1.6.It is most humbly submitted that actions of the State or an instrumentality of the State or aninstrumentality of the State which do not properly belong to the field of public law but belong
25Praga Tools Corpn. v.C.A. Imanual (1969) 3 S.C.R. 773, Shri Andi Mukta Sadguru Trust v.V.R. Rudani
1989 AIR 1607; VST Industries Ltd. v.Workers Union2001 (1) SCC. 298
26Sohan Lal v. Union of India (1997) 9 SCC83
27CWP No. 15991 of 2009
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to the field of private law are not liable to be subjected to judicial review. Confidence is
placed upon Reilly v. Mackman28, Davy v. Spelthone29, I congress del Partido, R.V. East,
Bershire Health Authority 30 and Redbakrishna Aggarwal v. State of Bihar. 31 Therefore,
respondent company is not to be subjected to judicial review.
1.7.In the present case the company being a private entity there is no public duty imposed on itby a statute in respect of which enforcement could be sought by means of a writ. The High
Court therefore was right in holding that no writ petition could lie against the company. To
enhance this submission inspiration is drawn from the gamut of decisions including Sohan
Lal v. Union of India,32Regina v.Industrial Court & Ors.33,R. v. Lewisham Union,34,Mc.
Clelland v.Northern Ireland General Health Services Boards35,Ridge v. Baldwin,36, Short
v. Poole Corporation,37and Attorney- General v. St. Ives R.D.C.38wherein reviewing the
gamut of decisions the courts have succinctly, pithily and tersely laid down the law on the
point. For the sake of brevity the counsel would like to illuminate by submitting that the High
Court was correct in dismissing the writ petition. Once the writ petition was held to be
misconceived on the ground that it could not lie against a company which was neither a
statutory company nor one having public duties or responsibilities imposed on it by statute,
no relief by way of a declaration as to the invalidity of an impugned agreement between it
and its employees could be granted. The only course open to the High Court was to dismiss
the petition and leave the workmen to the remedies under the any other Act. No such
declaration against a company registered under the Companies Act, 1956 and not set up
28[1983] 2 AC 237
29[1984]AC 262
30[1987] 2 All ER 909
311977 AIR 1496, 1977 SCR (3) 249
32 [1957] S.C.R. 738
33 [1965] 1 Q.B. 377
34[1897] 1 Q.B. 498, 501
35 [1957] 1 W.L.R. 594
36[1964]A.C. 40
37
[1926] Ch. 66 at pp. 90 to 91
38 [1961] 1 Q.B. 366
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under any statute or having any public duties and responsibilities to perform under such a
statute could be issued in writ proceedings in respect of an agreement which was essentially
of a private character between it and its workmen.
1.8.Since the year 2000, Government of Indistan holds only 31 % shares of IICL. Therefore, itcan be safely concluded that on the basis of the shareholding, the Government of India would
not be in control of the affairs of IICL. In order for IICL to be declared as a State or other
authority within the meaning of Article 12 of the Constitution of India, it would have to fall
within the well recognized parameters laid down in a number of judgments of this Court. In
the case of Pradip Kumar Biswas39, a Seven Judge Bench of this Court considered the
question as to whether Indian Institute of Chemical biology would fall within the definition
of State or other authority under Article 12. Ruma Pal, J. speaking for the majority
considered the manner in which the aforesaid two expressions have been construed by this
Court in the earlier cases. It has been categorically held in the case of Ramana Dayaram
Shetty v. International Airport Authority of India 40if only the functions of the Corporation
are of public importance and closely related to Government functions, it would be a relevant
factor in classifying the Corporation as an instrumentality or agency of the Government.
Strong reliance can be placed on Jatya Pal Singh & Ors. v. Union Of India & Ors41where
the Bench held that the functions performed by VSNL/TCL42are not of such nature which
could be said to be a public function. Undoubtedly, these operators provide a service to the
subscribers. The service is available upon payment of commercial charges. Similarly
functions performed by IICL are not of such nature which could be said to be a public
function.43 The tests propounded for determining as to when the Corporation will be said to
39Supra at page 1
40(1979) 3 SCC 489
41WPN.2652 of 2007
42Ministry of Communication took a decision to convert its Overseas CommunicationService Department into
a Public Sector Corporation (PSC). A notification to this effect was issued on 19th March, 1986 and the
Corporation was named as VSNL. Accordingly, all international telecommunication services of the country
handled by the Govt. stood transferred to VSNL.
43 VST Industries Ltd. v. IST Industries Workers' Union (2001) 1 SCC 298, G. Bassi Reddy v. International
Crops Research Institute, S.S. Rana v. Register Cooperative Societies 2006 AIR SCW 3723, 1995 Supp. (4)SCC 617, K. Vasudevan Nair v. Union of India 1991 Supp.(2) SCC 134;
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be an instrumentality or agency of the Government as stated, in Ramana Dayaram Shetty v.
International Airport Authority of India44were summarized as follows :
1)
One thing is clear that if the entire share capital of the corporation is held byGovernment, it would go a long way towards indicating that the corporation is an
instrumentality or agency of Government. 45
2)Where the financial assistance of the State is so much as to meet almost entireexpenditure of the corporation, it would afford some indication of the corporation being
impregnated with governmental character. (SCC p. 508, para 15)
3) It may also be a relevant factor whether the corporation enjoys monopoly status whichis State-conferred or State-protected. (SCC p. 508, para 15)
4) Existence of deep and pervasive State control may afford an indication that thecorporation 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 togovernmental 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 bea strong factor supportive of this inference of the corporation being an instrumentality
or agency of Government. (SCC p.510, para 18)
The aforesaid ratio in Ramana Dayaram Shetty46has been consistently followed by this
Court, as is evident from paragraph 31of the judgment in Biswas47. Para 31 reads as under:
The tests to determine whether a body falls within the definition of State in Article 12 laid
down in Ramana with the Constitution Bench imprimatur in Ajay Hasia form the keystone of
the subsequent jurisprudential superstructure judicially crafted on the subject which is
apparent from a chronological consideration of the authorities cited.
44(1979)3 SCC 489
45SCC p. 507, para 14
46Supra at page 13
47Supra at page 13
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The subsequent paragraphs of the judgment noticed the efforts made to further define the
contours within which to determine; whether a particular entity falls within the definition of
other authority, as given in Article 12. The ultimate conclusion of the Constitution Bench is
recorded in paragraph 39 and 40 as under:-Fresh off the judicial anvil is the decision in
Mysore Paper Mills Ltd. v. Mysore Paper Mills Officers' Assn. which fairly represents what
we have seen as a continuity of thought commencing from the decision in Rajasthan
Electricity Board in 1967 up to the present time. It held that a company substantially
financed and financially controlled by the Government, managed by a Board of Directors
nominated and removable at the instance of the Government and carrying on important
functions of public interest under the control of the Government is an authority within the
meaning of Article 12.
In view of the aforesaid authoritative decision of the Constitution Bench (Seven Judges), it
would be wholly unnecessary and unwarranted to consider the other judgments cited by the
learned petitioners.
1.9Further, if one examines the facts in the present case on the basis of the aforesaid tests, theconclusion is inescapable that IICL cannot be said to be other authority within Article 12 of
the Constitution of India. As noticed above, the share holding of Government of Indistan
would not satisfy test principles 1 and 2 in the case of Ramana Dayaram Shetty 48.On perusal
of the facts, it would be evident that test No.3 would also not be satisfied as IICL does not
enjoy a monopoly status in ILDS. So far as domestic market is concerned, there is open
competition between the numerous operators.This brings us to the 4th test and again we are
unable to hold that the Government of Indistan exercises deep and pervasive control in either
the management or policy making of IICL which are purely private enterprises. We may also
notice that in fact even Government Company like RIMCL is competitor of IICL in respectof ILDS.
Therefore, it is succinctly submitted that the High Court of Indistan was fully justified in
rejecting the claim of the petitioners that IICL would be amenable to writ jurisdiction of the
High Court by virtue of the other authority within the purview of Article 12 of the
Constitution of Indistan.
48Supra at page 13
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1.10 It is emphatically submitted that, it is in highlighting the positive aspects of the public-privatepartnership that distinct gains accrue to public policy and economic decision-making. A
partnership of this nature is collaborative and, contrary to widespread but facile assumptions,
is not anti-public sector but is pro-competition.49Therefore, the new management of IICL in
furtherance of the betterment of the corporation has terminated the employees whose services
were of no use it.
Reliance is placed upon another decision of the Hon'ble Supreme Court in the case of Sindhi
Education Society & Anr. v.Government (NCT of Delhi)50. In this case the court observed
that even if Minority Institution which is enjoying special Rules under Art 30 of the
Constitution of India, receives Government aid towards dearness allowances for its teaching
and non-teaching staff, still then writ does not lie against such institution, as such a
Government aided institution cannot be construed as a State or instrumentality of the State
within the meaning of Article 12 of the Constitution of India inasmuch as the Government
does not retain control either financially, functionally or administratively in the working of
such monitory aided institution, enjoying special Rules under article 30.
2. THE RESPONDENT COMPANY IS NOT PERFORMING PUBLIC FUNCTION.2.1.It is reverentially submitted that XYZ Ltd. erstwhile IICL is not performing a public function
or a mandatory public duty and, therefore, would not be amenable to the writ jurisdiction of
the High Court under Article 226 of the Constitution51.
2.2.It is most respectfully submitted that when an alternative and equally efficacious remedy is
open to a litigant, he should be required to pursue that remedy and not invoke the special
jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of
another remedy does not affect the jurisdiction of the Court to issue a writ; but, the existence
of an adequate legal remedy is a thing to be taken into consideration in the matter of granting
49Public Private Partnership ,available at http://www.hindu.com/2002/02/18/stories/2002021800091000.htm
(Visited on July 15,2013)
50(2010) 8 SCC 49
51
G. Bassi Reddy v. International Crops Research Instt.&
Anr (2003) 4 S.C.C. 225;Binny Ltd. & Anr v.V.Sadasivan & Ors (2003) 4 SCC 255
http://www.hindu.com/2002/02/18/stories/2002021800091000.htmhttp://www.hindu.com/2002/02/18/stories/2002021800091000.htm -
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writs. And where such remedy exists, it will be a sound exercise of discretion to refuse to
interfere in a petition under Article 226, unless there are good grounds therefore. 52Thus,
resort to Articles 226 and 227 should be discouraged when there is an alternative remedy.53
To intensify this submission, the petitioner relies on Radhakrishna Agarwal v. State of
Bihar54; Binny Ltd.55andPraga Tools Corp. v.C.A.Imanual & Ors56.Reference is also drawn
from another decision of the Hon'ble Supreme Court in the case of Poonam v. Sumit
Tanwar57, wherein it was held that writ lies only against a person if it is a statutory body or
performs a public function or discharges a public or statutory duty or a State within the
meaning of Article 12 of the Constitution of India. Thus, it is flagrant that since the
Respondent Company does not perform a public function and it should not be regarded as an
instrumentality of the State and as such the writ will not lie against such an institution.
Confidence is placed upon a judgment of this Court in the case of VST Industries Ltd. v.VST
Industries Workers' Union & Anr58. In the said case, this Court held "In Anadi Mukta case
this Court examined the 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 that Article 226 of the Constitution can be invoked."
2.3.It has been noticed earlier that ILDS functions, prior to 1981, were being performed by
RIMCL, a Department of Telecommunications. IICL was incorporated under the Indistan
Companies Act, 1956 as a wholly owned Government company to take over the activities of
erstwhile RIMCL with effect from 1981. The employees of erstwhile RIMCL continue to
52Visva Bharati v. Smt. Rakhi Debnath And Ors. (1996) 1 CALLT 51 HC; P. Electricity Board v.Regional
Provident Fund (2004) IILLJ 40 MP;Basu Distributors Pvt. Ltd. v.Income Tax Officer 2007 292 ITR 29 Delhi;
Gita Theatres And Anr. . v. Municipal Corporation (1998) 3 GLR 2591; A.B. Joglekar And Anr. . v. Debts
Recovery Tribunal And Anr. III (2004) BC 41, 2002 (5) MPHT 187; Calcutta Municipal Corporation . v.M/S.
Bala Bestos India Ltd(1998) 2 CALLT 249 HC, 1998 (1) CHN 49253
Sri Ramdas Motor Transport Ltd. v.Tadi Adhinarayana Reddy And Ors.AIR 1997 SC 2189; Shyam Kishore
and others . v.Municipal Corporation of DelhiAIR 1991 Delhi 104; Municipal Corporation Of Delhi . v. R.P.
Khaitan And Anr.1995 IVAD Delhi 883, 1995 (35) DRJ 604, 1996 RLR 13
54(1977) 3 SCC 457
55Supra at page 21
56(1969)1 SCC 585
57AIR 2010 SC 1384
58(2001)1SCC 298
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work for IICL Non-governmental bodies such as these are just as capable of abusing their
powers as is government. To demonstrate, as to who can be regarded as a public servant and
which duty can be regarded as public duty to be performed by such public servant, he relied
upon a decision of the Hon'ble Supreme Court in the case of P.V. Narsimha Rao . v.State59.
Reference is drawn to paragraph 160 of the said decision, it is submitted that a public servant
is a person who holds an office by virtue of which he is authorized or required to perform any
public duty. Not only such a person must hold an office but he must be authorized or required
by virtue of that office to perform public duty meaning a duty in the discharge of which the
public or that community at large has interest. Inspiration is drawn from another decision of
the Hon'ble apex Court, in the case ofDalco Engg. (P) Ltd. v.Satish Prabhakar Padhya60, in
this case it was held that since the school was not established by or under an Act, it is neither
a statutory body nor an instrumentality of the State and as such even if any illegality is
committed by the school authority in the process of selection of candidates for admission in
Class XI in the said school, such illegality on the part of the school authority cannot be
challenged before this Court in its Constitutional writ jurisdiction.
These observations make it abundantly clear that in order for it to be held that the body is
performing a public function, the petitioner would have to prove that the body seeks to
achieve some collective benefit for the public or a section of public and accepted by the
public as having authority to do so. In the present case, as noticed earlier, all telecom
operators are providing commercial service for commercial considerations. Such an activity
in substance is no different from the activities of a bookshop selling books. It would be no
different from any other amenity which facilitates the dissemination of information or DATA
through any medium. Therefore the contention of the petitioners cannot be appreciated that
the activities of IICL tantamount to public function. The recipients of the service of the
telecom service voluntarily enter into a commercial agreement for receipt and transmission of
information. The function performed by IICL cannot be put on the same pedestal as the
function performed by private institution in imparting education to children.61
59AIR 1998 Supreme Court 2120
60(2010) 4 SCC 378
61
General Manager, Kisan Sahkar Chini Mills Limited, Sultanpur, UP . v.Satrughan Nishad and Ors.(2003) 8SCC 639
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2.4.IICL had merely promised not to retrench any employee, who had stayed as an employee in
IICL prior to disinvestment for a period of three years from disinvestment. Such a condition,
in our opinion, would not clothe the same with the characteristic of a public duty which the
employer was bound to perform. The employees had individual contacts with the employer.
In case the employer is actually in breach of the contract, the appellants are at liberty to
approach the appropriate forum to enforce their rights.
2.5.After scaling the facts in the light of the law the counsel would like to summarize the
approach of the Honble apex court in the apt wordings of R.P. NAGRATH,J wherein
reviewing the catena of decisions his lordship lucidly elucidated that62:
The functions and activities of institutions relating to recruitment of their staff, governance
of service conditions of such staff or other internal management related affairs are of purely
private character and these are not relatable to the "public duty" which such institution/body
or a person perform.
B. WHETHER TERMINATION OF EMPLOYEES WAS JUSTIFIED AND OFFICEMEMORANDUM AND THE RECOMMENDATIONS OF MINISTRY OF SOCIALJUSTICE AND EMPOWERMENT COULD BE SPECIFICALLY ENFORCED?
1. THE TERMINATION OF EMPLOYEES WAS FAIR, JUST AND PROPER.
1.1It is most respectfully submitted that it would be appropriate to draw attention to para 11 ofthe agreed statement of facts that there was a restriction on the new management of IICL to
not retrench any employee for a period of three years from the date of disinvestment in the
year 2000.
It is further contended that the termination of services from the new management of IICL was
done in the year 200963which was nine years after the date of disinvestment. It is in light of
above concluded that the termination of employees was not in violation of the share purchase
62Mrs. K. Naqvi v.State of Punjab and Ors2004ILR 2(Punjab and Haryana)11
63Para 15 of statement of facts
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and share-holding agreement and the new management of IICL was well within their bounds
to terminated the services of such employees.
1.2The respondent submits that the termination of employees was fair and proper and itwas not in violation of the principles of natural justice.
The respondent most humbly submits that in the instant case the respondent company is a
purely private entity and it is not bound by the recommendation dated 3rdMay, 2001 of the
Ministry of Social Justice and Empowerment, Government of Indistan.
To substantiate further reliance is placed upon the case of Vaish Degree College64, which was
run by a society registered under the Societies Registration Act; the services of the
Respondent-Principal of the College were terminated by the Appellant-society which caused
initiation of proceedings in a civil suit. Rejecting the claim of reinstatement in services, the
Supreme Court held as under:
On a consideration of the authorities mentioned above, it is, therefore, clear that a contract
of personal service cannot ordinarily be specifically enforced and a Court normally would
not give a declaration that the contract subsists and the employee, even after having been
removed from service can be deemed to be in service against the will and consent of the
employer. This Rule, however, is subject to three well recognised exceptions-(i) where a
public servant is sought to be removed from service in contravention of the provisions of
Article 311 of the Constitution of India; (ii) where a worker is sought to be reinstated on
being dismissed under the Industrial Law; and (iii) where a statutory body acts in breach or
violation of the mandatory provisions of the statute.
Reliance is also placed upon Integrated Rural Development Agency's case 65 , where the
relationship between the Integrated Rural Development Agency and the Respondent-
employee was based on contract and was purely one of Master and Servant. Relying upon thejudgment in Nandganj Sihori Sugar Company Ltd. Rae Bareli v. Badri Nath Dixit66., their
Lordships held that the relief of reinstatement could not be granted as by affording the relief
of reinstatement or back wages, will, in fact, be granting a specific performance of contract
of service; which could be done only in the exceptional or rare cases.
641976 SCR (2)1006
651995 SCC, Supl. (2) 495
66(1991) 3 S.C.C. 54
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1.3IICL being a private entity would not be bound by Constitutional Mandate of the stateUnlike the private parties the State while exercising its powers and discharging its functions,
acts indubitably, as is expected of it, for public good and in public interest. The impact of
every State action is also on public interest. It is really the nature of its personality as State
which is significant and must characterize all its actions, in whatever field, and not the nature
of function, contractual or otherwise, which is decisive of the nature of scrutiny permitted for
examining the validity of its act. The requirement of Article 14 being the duty to act fairly,
justly and reasonably, there is nothing which militates against the concept of requiring the
State always to so act, even in contractual matters. This factor alone is sufficient to import at
least the minimal requirements of public law obligations and impress with this character the
contracts made by the State or its instrumentality.
However, the new management of IICL being a purely private entity is not bound by the
constitutional mandates of the state and is free to choose whether to continue utilizing the
service of an employee or to terminate such service, based on a contract.
1.4Salary in lieu of notice is completely legalThe petitioner submits that in the instant case, the employees were given three months
advance salary at the time of termination of their services. It has been held by this Honble
Court that the purpose of serving a notice prior to the termination of service is not to leave the
employee suddenly in lurch with no resources67. It is just and fair that employees be given
enough time to seek alternative source of livelihood. It has also been held by this Honble
court that providing three months salary in lieu of notice is not illegal but rather in the favor
of employees as it gives them sustenance for three months and ample free time to explore
alternative jobs
68
.
67GRIDCO Ltd. V. Sadananda Doloi ; Asst. Engineer v. Ram Charan
68DAV Managing Committee v. Surender Rana
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2. THE OFFICE MEMORANDUM AND THE RECOMMENDATION OF THEMINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT CANNOT BE
ENFORCED
2.1The Office Memorandum cannot have retrospective effect.The respondent humbly submits that the disinvestment of IICL was done by the Government
of Indistan in the year 2000 and that the Office Memorandum was passed on 13 thAugust
2001. Furthermore, an office memorandum does not, ordinarily have retrospective effect.
Reliance is placed upon the judgement of this Honble Court in the case of Sonia v Oriental
Insurance Co. Ltd69.Wherein it was held as follows:An office memorandum cannot have a
retrospective effect unless and until intention of the authorities to make it as such is revealed
expressly or by necessary implication
It is pleaded that in the instant case, the office memorandum reads as follows: In case the
Government disinvests its equity in any public sector units or autonomous body to the extent
of 51% or more, it shall specify adequate safeguards for protecting the interests of the
absorbed employees of PSUs or autonomous bodies
The language used in the memorandum indicates only retrospective effect i.e. in case the
government disinvests. Once it is established that the memorandum was intended to have
prospective effect which is clear from the language used, the respondent submits that the
office memorandum cannot be specifically enforced and the Government of Indistan cannot
make any new regulation for the welfare of the employee which were absorbed prior to the
passing of the office memorandum.
69Appeal (civil) 3521 of 2007
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2.2THE RECOMMENDATION CANNOT BE ENFORCED IN VIEW OFLEGITIMATE EXPECTATION
a) There has been no discriminationIt is humbly submitted that in the instant case, it has been clearly mentioned in the statement
of facts70that: .however, it is not the case that the services of all the employees from
that category has been terminated The foregoing para of the factual matrix makes it clear
that there has been no discrimination against the said category of employees. A mere
coincidence that most of the employees whose services were terminated belonged to the
backward class of employees does not necessitate discrimination against the said employees.
It is further wrong on the part of petitioner to presume out of thin air that the ground on
which the services of employees have been terminated is the factum of them belonging to the
backward classes whereas there is no mention as to what is the ground for termination of
services.
b) The senior managerial employees should be excluded from affirmative actionAffirmative action is a measure used by welfare states all over the globe to uplift the
disadvantaged sections of the society. Any further affirmative action once the original task of
reservation is complete would result into reverse discrimination and become violative of Art.
14 of the Constitution of Indistan. To further augment the contention, inspiration is drawn
from Jeevan Reddy, J. who wrote the majority judgment in Indra Sawhney (supra) 71and made a
reference to his judgment in Narayana Rao and Anr. v. State of A.P. and Anr.,72
wherein the learned
Judge opined:
"Article 15(4) or Article 16(4) are not designed to achieve abolition of caste-system-much less to
remove the meanness or other evils in the society. They are designed to provide opportunities in
education, services and other fields to raise the educational social and economic levels of those
lagging behind, and once this is achieved, these Articles must be deemed to have served their purpose.
If so, excluding those who have already attained such economic well-being (inter-linked as it is with
social and educational advancement) from the special benefits provided under these clauses cannot
be called unreasonable or discriminatory or arbitrary much less contrary to the intention of the
70Para 15 of the statement of facts
71AIR 1993 SC 477
72AIR 1987 AP 57
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founding-fathers. It can be reasonably presumed that these people have ceased to be socially if not
educationally backward and hence do not require the preferential treatment contemplated by Articles
15(4) and 16(4). Moreover, in the face of the repeated pronouncements of the Supreme Court referred
to above, these arguments cannot be countenanced. Not only it does not amount to creating a class
within a class, it is a proper delineation of classes..."73
It is humbly submitted that in the instant case, the employees in question are already senior
managerial employees which necessitates their developed economic and educational status. It
is therefore pleaded before this Honble Court that any affirmative action in favour of the
petitioner employees would result into reverse discrimination and this be violative of Art. 14
of the Constitution of Indistan.
c) The principle of legitimate expectation is inapplicable as the decision is merely a part ofchange in administrative policy.
It has been held under English law that the decision maker's freedom to change the policy in
public interest cannot be fettered by the application of the principle of substantive legitimate
expectation.
In R. v. IRC, ex p Preston74 the House of Lords rejected the plea that the altered policy
relating to parole for certain categories of prisoners required prior consultation with the
prisoner, Lord Scarman observed:
"But what was their legitimate expectation. Given the substance and purpose of the
legislative provisions governing parole, the most that a convicted prisoner can legitimately
expect is that his case be examined individually in the light of whatever policy the Secretary
of State sees fit to adopt provided always that the adopted policy is a lawful exercise of the
discretion conferred upon him by the statute. Any other view would entail the conclusion that
the unfettered discretion conferred by statute upon the minister can in some cases by
restricted so as to hamper or even to prevent changes of policy."
To a like effect are the observations of Lord Diplock in Hughes vs. Department of Health and Social
Security (HL)75
: "Administrative policies may change with changing circumstances, including
73Triloki Nath and Anr. v. State of Jammu & Kashmir and Ors . (1969) 1 SCR 103; M. R. Balaji v. State of
Mysore ((1963) Supp 1 SCR 439; State of A. P. v. P. SagaAIR 1975 SC 563; State of Uttar Pradesh v. Pradip
Tandon and Ors1985 SC1495;Kailash Chand Sharma v. State of Rajasthan, (2002) 6 SCC 562.
74
[1985] AC 835
751985 AC 776 (788)
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changes in the political complexion of governments. The liberty to make such changes is something
that is inherent in our constitutional form of government."76
On the facts of the case in the instant matter, the principle of legitimate expectation has no
application. It has not been shown as to how any act was done by the authorities which
created an impression that the conditions attached in the original appointment order were
waived. Mere continuance does not imply such waiver. No legitimate expectation can be
founded on such unfounded impressions. It was not even indicated as to who, if any and with
what authority created such impression. No waiver which would be against requisite
compliances can be countenanced. Whether an expectation exists is, self-evidently, a question
of fact and this Honble court decides only upon the questions of law.
The respondent concedes that the petitioner shall have a legitimate expectation of affirmative
action from the state in view of the constitutional provisions. However, IICL, ever since its
divestment in 2000 has become a private entity and the absorbed employees legitimate
expectation has ceased to exist as a private entity cannot be bound by the constitutional
provisions which were intended to bind the state.
It was indicated in the case Union of India and Ors. vs. Hindustan Development Corporation
and Ors.
77
: The legitimacy of an expectation can be inferred only if it is founded on thesanction of law or custom or an established procedure followed in regular and natural
sequence. Such expectation should be justifiably legitimate and protectable.
It is humbly submitted that in the case, the expectation is not protectable. Arguendo this court
finds merit in the legitimate expectation of the petitioner and directs the respondent to
undertake affirmative action; it would amount to making mandatory a constitutional
provision on a private entity which would be against the intention of the framers of the
constitution which has made such provisions mandatory only on the state and not on private
entities.
It is therefore pleaded that in light of above, the recommendation shall not be specifically
enforced.
76Mr. Detan's article "Why Administrators should be bound by their policies" (Vol. 17) 1997 Oxford Journal of
Legal Studies, p. 23
771993 (3) SCC 499
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THE PRAYER
WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENT ADVANCED,
REASONS GIVEN AND AUTHORITIES CITED, THIS HONBLE COURT MAY
GRACIOUSLY BE PLEASED TO:
A. HOLD THAT IICL & ITS NEW MANAGEMENT IS NOT AMENABLE TO THEWRIT JURISDICTION.
B. DECLARETHAT TERMINATION OF SERVICES OF EMPLOYEES WAS NOTARBITRARY.
C. DECLARE THAT RECOMMENDATION OF SOCIAL JUSTICE ANDEMPOWERMENT DEPARTMENT CANNOT BE SPECIFICALLY ENFORCED.
AND ANY OTHER RELIEF THAT THIS HONBLE COURT MAY BE PLEASED TO
GRANT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
COUNSELS FOR RESPONDENT