Madhya Pradesh High Court
Suresh Madhukar Ganorkar vs Union Of India on 4 November, 2020
Equivalent citations: AIRONLINE 2020 MP 1131
Author: Vishal Dhagat
Bench: Vishal Dhagat
1
THE HIGH COURT OF MADHYA PRADESH:JABALPUR
WRIT PETITION NO. 7877/2020,
Dhirendra Mishra and another
Vs.
Union of India and others
WRIT PETITION NO. 8246/2020
Bhushan Raut
Vs.
Union of India and others
WRIT PETITION NO. 8324/2020
Ashutosh Jha
Vs.
Union of India and others
WRIT PETITION NO. 8474/2020
Vidhya Shanker Shukla
Vs.
Union of India and others
WRIT PETITION NO. 8807/2020
Ram Kumar Sahu
Vs.
Union of India and others
WRIT PETITION NO. 9030/2020
Rajendra Singh Chandel
Vs.
Union of India and others
2
WRIT PETITION NO. 10179/2020
Umesh Ukarande
Vs.
Union of India and others
WRIT PETITION NO. 10223/2020
Akashchandra Dinkarrao Mahakulkar
Vs.
Union of India and others
WRIT PETITION NO. 10649/2020
Ashok Tripathi
Vs.
Union of India and others
WRIT PETITION NO. 10797/2020
Vineet Kumar
Vs.
Union of India and others
WRIT PETITION NO. 10807/2020
Ramakant Singh
Vs.
Union of India and others
WRIT PETITION NO. 10810/2020
Kaushal Kishore Singh and another
Vs.
Union of India and others
WRIT PETITION NO. 10838/2020
Satish Kumar Bhusari
Vs.
Union of India and others
3
WRIT PETITION NO. 10893/2020
Sushil Kumar Singh
Vs.
Union of India and others
WRIT PETITION NO. 10968/2020
Jitendra Keshav Dangore
Vs.
Union of India and others
WRIT PETITION NO. 11076/2020
Suresh Madhukar Ganorkar
Vs.
Union of India and others
WRIT PETITION NO. 11081/2020
Madhav Manoharrao Dubey
Vs.
Union of India and others
WRIT PETITION NO. 11086/2020
Chandrabhan Tulshiram Khandait
Vs.
Union of India and others
WRIT PETITION NO. 11608/2020
Manoj Machhirke
Vs.
Union of India and others
4
WRIT PETITION NO. 11661/2020
Rupesh Tawani
Vs.
Union of India and others
WRIT PETITION NO. 12190/2020
Dilip Raut
Vs.
Union of India and others
WRIT PETITION NO. 12899/2020
Adinath Ramappa Chavaj
Vs.
Union of India and others
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Shri Nikhil Tiwari, learned counsel for the petitioners in W.P.Nos.8474/2020,8807/2020,10179/2020,10223/2020, 10649/2020, 10968/2020,12190/2020,12899/2020.
Shri Rahul Deshmukh with Shri Amit Seth, learned counsel for the petitioners in W.P.Nos. 7877/2020,8246/2020,8324/2020,9030/2020,10797/2020, 10807/2020,10810/2020,10838/2020,10893/2020,11076/2020, 11081/2020, 11086/2020,11608/2020,11661/2020, Shri J. K. Jain, learned Assistant Solicitor General for the respondent no.1/Union of India.
Shri Utkarsh Agrawal, learned Panel Lawyer for the respondent no.2, 3 and 4/State.
Shri Abhay Nevagi, learned counsel for the respondent no.5.
Shri Akash Choudhary, learned counsel for the caveator.
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5Hearing convened through Video Conferencing:
Jabalpur Dated: 04 /11/2020 Per: Vishal Dhagat;J.
Interlocutory Application No. 7590/2020, seeking adjournment of the cases is filed in Writ Petition No. 8246/2020, after closing of the final arguments, therefore, it is rejected.
Petitioners have filed this writ petition calling in question the order of their termination and acceptance of resignation by private respondent.
2. Petitioners prayed for relief for issuing mandamus to respondent nos. 1 and 2 to implement advisory dated 20.03.2020 and further for quashment/withdrawal of order passed by private company terminating the services of petitioners and in some cases accepting request of petitioners for resignation.
3. It is submitted by the counsel appearing for petitioners that termination/acceptance of resignation of services of petitioners during COVID- 19 pandemic amounts to violation of Articles 14, 19 and 21 of the Constitution of India. Central Government has issued an advisory/direction to all Chief Secretaries of the State Government on 20.03.2020. It was specifically instructed by said advisory/circular not to lay off its employees and not to terminate their services. Termination/acceptance of resignation of services of petitioners are contrary to the advisory and direction issued by Union of India under Disaster Management Act, 2005. Such direction/advisory is enforceable and, therefore, quash order of termination and permit petitioners who had tendered resignation to withdraw it. It is also argued that order is passed in violation of Section 25-M and 25-N of Industrial Disputes Act 1947. Impugned order passed by private respondent violates right to livelihood which is one of the facet under Article 21 of the Constitution of India. State has to act as an Welfare State and is under obligation to do social and economic justice. Impugned action of respondents 6 violates Article 21 of the Constitution of India and State is duty bond to enforce guidelines/directives issued by Union of India. Doctrine of Parens patriae shall be applied in this case. According to this doctrine State has inherent power and authority to provide protection to person and property of person non-sui juris such as minor, in-sane and in competent persons like those rendered helpless.
4. Counsel appearing for private respondent has raised an objection that writ petition filed by the petitioners is not maintainable. Writ of mandamus cannot be issued to private party to enforce contractual obligation and advisory issued by Union of India to Chief Secretary of State is only advice which is not enforceable by issuing writ of mandamus. Order of termination/acceptance of resignation of petitioners by private company cannot be challenged in writ petition under Article 226 of the Constitution of India. Private Company in present writ petitions is not doing any public duty and no public element or public interest is involved in the writ petitions. Petitioners have remedy under common law and writ petitions filed by the petitioners are not maintainable.
5. Counsel appearing for petitioners has relied on judgment reported on website of live law.in, Hindu Kamgar Sangathan through its president versus State of Maharashtra and others. In this writ petition, preliminary objection was raised by respondent no.7 therein regarding maintainability of writ petition. Petitioners had relied on circular dated 20.03.2020 issued by Ministry of Labour and Employment Government of India as well as order of the Ministry of Home Affairs Government of India dated 29.03.2020 issued under Section 10(2) of Disaster Management Act, 2005 calling upon employers to make payment of wages to their workers on due date without any deduction for the period the establishment was under closure during the lock-down. Prayer was also made to issue directions to take necessary measures for safety of workers in industrial plant and to make suitable 7 arrangement for transportation of workers in view of restrictions imposed by the State to combat COVID-19 pandemic. Maharashtra High Court held writ petition is to be maintainable.
6. Counsel appearing for respondents had relied on citations reported in (2005) 6 SCC 657, Binny Ltd and another versus V Sathasivam and others, (2003) 10 SCC 733, Federal Bank versus Sagar Thomas, (2015) 4 SCC 670, K.K Saxena versus International Commission on Irrigation and Drainage and others, (2019) 16 SCC 303, Ramkrishna Mission and Another versus Kago Kunya and others, (2013) 6 SCC 452- Jaipal Singh and others versus union of India and others, 2009 (4) MPLJ 641-Sunil Kumar Saxena versus Holycross Ashram Higher Secondary School Datia. Relying on aforesaid judgments, it is argued by the counsel appearing for respondents that writ petition under Article 226 of Constitution of India is maintainable against the State, Authority, Statutory Body, an instrumentality or agency of the State, a Company which is financed and owned by the State, a private body run substantially on State funding, a private body discharging public duty or positive obligation of public nature, a person or a body under liability to discharge any function under any statute to compel it to perform such a statutory function. Respondents does not fall in any of above categories. Termination of service/acceptance of resignation of an employee cannot be said to have any element of public policy and such cases are purely governed by contract of employment entered between employees and employer, therefore, writ petition is not maintainable. It is further argued by him that advisory/instructions which were issued by Union of India has already been withdrawn and order of termination/acceptance of resignation has been passed after withdrawal of advisory instructions. Advisory issued by Union of India is not enforceable by issuing writ of mandamus under Article 226 of the Constitution of India. On this ground, he made a prayer for dismissal of writ petition.
87. Respondent no.5 is a company which does not fall within the scope of Article 12 of the Constitution of India. Contract of employment entered between petitioner and private respondent is purely governed by contract of employment between them and writ petition under Article 226 of the Constitution to enforce such contract is not maintainable.
8. Petitioners have heavily relied on Article 21 of the Constitution of India regarding violation of right to livelihood. If services of an employee employed in a private company is terminated then same will not violate right to livelihood guaranteed under Article 21 of the Constitution of India. Petitioners can always avail remedy available to them under the law for setting aside illegal order of termination by approaching proper forum. Respondent No.4 is a private company and not doing any public duty, therefore, writ of mandamus or certiorari under Article 226 of Constitution of India is not maintainable.
8. Counsel appearing for petitioners has argued that advisories and directions issued by Union of India has statutory force. Such advisory/directions were issued under Disaster Management Act, 2005. State Government is bound to enforce the directions issued by Union of India.
9. Considered letter dated 20.03.2020. It is a D.O letter issued to all Chief Secretaries of State and Union Territories. Letter is worded as an advisory to the State. Letter does not say that directions are issued under the Disaster Management Act, 2005. Word advisory is used in this DO letter. No directions were issued by said letter. Only directions which are issued under Disaster Management Act, 2005 are enforceable by State Government. The content of DO letter dated 20.03.2020 is quoted below:-
"The World if facing a catastrophic situation due to outbreak of COVID 19 and in order to combat this challenge, coordinated joint efforts of all Sections of the Society are required. In view of the above, there may be incidence that employee's/workers services are dispensed with on this pretext or 9 the employees/workers are forced to go on leave without wage/salaries.
In the backdrop of such challenging situation, all the Employers of Public/Private Establishments are advised to extend their coordination by not terminating their employees, particularly casual or contractual workers from job or reduce their wages. If any worker takes leave, he should be deemed to be on duty without any consequential deduction in wages for this period. Further, if the place of employment is to be made non operational due to COVID 19, the employees of such unit will be deemed to be on duty.
The termination of employee from the job or reduction in wages in this scenario would further deepen the crises and will not only weaken the financial condition of the employee but also hamper their morale to combat their fight with this epedemic. In view of this, you are requested to circulate this Advisory to the Employers/Owners of all the establishments registered with your Association for compliance."
10. By said D.O private establishment are advised to extend their coordination by not terminating their employees particularly casual or contractual workers from job or reduce wages. Letter is given number DO which means Demi Official Letter. Demi Official Letters are different from Official Letters in that they are in formal. Demi Official Communication is resorted to when writer wishes to make clear to addressee that he, the writer, is not using his authority rather his relationship with addressee to communicate a request or suggestion. Impugned letter is only an advice to private establishment so that consequences of pandemic can be dealt with effectively. On going through order dated 17.05.2020, it is clear that certain directions were issued by National Disaster Management Authority in excise of their power under Section 6 of Disaster Management Act, 2005, such order is 10 dated 24.03.2020, 14.04.2020, 01.05.2020. Said orders are passed as lock- down measures to contain the spread of COVID-19 in the country. NEC in exercise of power under Section 10(2)(l) of Disaster Management Act, 2005 has issued orders in respect of lock-down measures on 24.03.2020, 29.03.2020, 14.04.2020, 15.04.2020 and 01.05.2020. From perusal of all the documents filed by petitioners as well as by respondents, it is clear that letter dated 20.3.2020 relied upon by petitioners is not a direction or advisory issued under Disaster Management Act, 2005 but only a Demi Official Letter in form of an advice issued to Chief Secretary of the State's. Such letter does not have statutory force and it cannot be implemented. Petition for implementation of such advisory is not maintainable before High Court. Petitioners have relied upon the judgment reported in (2020) 4 SCC 810, FICUSPAX Private Limited and others versus Union of India and others. This case was filed by a private company for declaring directions issued by Central Government under Disaster Management Act, 2005 to be null and void. Petition was dismissed by the Apex court. The said case is of no help to the petitioners as nowhere in said case it has been said that D.O letter dated 20.03.2020 is a direction or advisory issued under Disaster Management Act 2005. Other orders mentioned in the said case dated 29.03.2020 is said to be a direction issued under Disaster Management Act 2005. Doctrine of parents patriae is an obligation of the State to protect and taken into custody rights and Privileges of citizens for discharging its obligations. Termination of services/acceptance of resignation of petitioners does not violate the fundamental rights and petitioners are in a position that they can assert and claim their rights. Doctrine parens patriae cannot be applied in this case. Case of Hindu Kamgar Sangathan (supra) is also no help to petitioners as that relates to payment of full wages and other statutory provisions were relied on by High Court of Maharashtra. Letter 11 dated 20.3.2020 is a D.O. letter with no statutory force and same is not enforceable by issuing writ of mandamus.
11. Writ Petitions filed by the petitioners under Article 226 of the Constitution of India against their termination order/acceptance of resignation are not maintainable.
12. Writ Petitions filed by the petitioners are dismissed.
(VISHAL DHAGAT) JUDGE DUBEY/-
Digitally signed by ARVIND KUMAR DUBEYDate: 2020.11.05 11:09:41 +05'30'