Madhya Pradesh High Court
Shramik Janta Sangh vs The State Of Madhya Pradesh on 3 August, 2021
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
WP No.11885/2021
High Court of Madhya Pradesh, Jabalpur
Bench at Indore
Writ Petition No.11885/2021
(Shramik Janta Sangh through its President
Medha Patkar d/o Late Vasant Khanolkar,
Rajkumar Dubey s/o Bhuwneshwar Dubey
AND
Shyam Kumar Bhandane s/o Gorakhnath Bhandane
Versus
The State of Madhya Pradesh
Through Principal Secretary,
Ministry of Labour,
Mantralaya, Vallabh Bhawan, Bhopal, MP
Century Textiles & Industries Limited
Through its Director R.K. Dalmia,
Century Bhawan, Dr. Annie Basent Road,
Century Bazar, Worli, Mumbai, MS
Century Yarn / Denim Division of
Century Textiles & Industries Limited
Through its Factory Manager
Anil Kumar Dubey,
Village & Post Satrati,
AB Road, District Khargone MP)
*****
Shri Sanjay Parikh, learned Senior Counsel along with Shri Pratyush
Mishra, learned counsel for the petitioners.
Shri Chetan Jain, learned Panel Lawyer for respondent No.1 / State of
Madhya Pradesh.
Shri Chandra Uday Singh, learned Senior Counsel along with Shri Sudeep
Bhargava, learned counsel for respondents No.2 and 3.
*****
ORDER
(Passed on this 3rd day of August, 2021) Heard on admission.
This petition under Article 226 of the Constitution of India has been filed by the petitioners against the notice (s) dated 29.06.2021 (Annexure P/1 and P/2) issued by respondent No.3 - Century Yarn / Denim Division of Century Textiles & Industries Limited, District Khargone (MP) (herein after referred to as the Century Textiles Company).
2. In brief, the facts giving rise to the present petition are 2 WP No.11885/2021 that the petitioner No.1 - Shramik Janta Sangh is a registered Union. It has most of the workmen of Century Yarn / Denim Division of Centure Textiles & Industries Limited situated at District Khargone (MP) including petitioners No.2 and 3, as its members.
3. The petitioners are aggrieved by the aforesaid notices dated 29.06.2021 (Annexure P/1 and Annexure P/2) issued by respondent No.3 - Century Textiles Company and the following reliefs are being sought by them: -
"7. RELIEF SOUGHT In the light of the aforesaid submissions advanced and documents annexed, the petitioner humbly pray that this Hon'ble Court may kindly be pleased to issue a writ of mandamus / declaration / direction of similar nature:
A) To quash and set aside the Notices dated 29.06.2021 (Annexure P/1 and P/2) issued by Factory Manager of Century Textiles & Industries Ltd. that are illegal, against the provisions of ID Act and undertaking given in IA No.10 and in MP No.2248/2019 and Order dated of the High Court in 25.11.2019 and the Order dated 05.06.2020 of the Hon'ble Supreme Court.
B) Direct that a inquiry be conducted by the State Government into the malafide conduct of the Respondent No.2 in transferring the Mills to M/s. Manjeet Cotton Private Limited and thus illegality and in violation of the I.D. Act dispensing with the services of the workmen. C) To issue a direction to the State Government and all other concerned departments to submit a viable scheme to revive the Century Yarn / Denim Division of Century Textiles and Industries Limited situated at village and post Satrati, A.B. Road, District Khargone, Madhya Pradesh allowing the workers participation and management in consonance with Article 43A, 41 of the Constitution r/w Article 21 of the Constitution.
D) Any other relief which the Hon'ble court may deems fit."
4. The grievance of the petitioners is that in order to circumvent the orders of this Court as also of the Supreme Court 3 WP No.11885/2021 passed in earlier round of litigation in respect of Wearit Global Limited, Kolkata (West Bengal) to which respondent No.3 - Century Textiles Company also tried to transfer its assets and liabilities by flouting the legal provisions, the respondents have taken recourse of the issuance of the impugned show cause notice
5. Shri Sanjay Parikh, learned Senior Counsel appearing along with Shri Pratyush Mishra, counsel for the petitioners has vehemently argued before this Court that the show cause notices dated 29.06.2021 (Annexure P/1 and P/2) issued by respondent No.3 are not only illegal, but have also been issued with mala fide intention inasmuch as, it has devised a method to retire the workmen compulsorily, if they do not accept the proposal of the company.
6. Learned Senior Counsel has submitted that the aforesaid notices have also been issued in utter violation of the provisions of Sections 25 (O), 25 (N) and 25 (FF) of the Industrial Disputes Act, 1947 (herein after referred to as the ID Act).
7. Learned Senior Counsel has also relied upon various decisions rendered by the Supreme Court in the case of Anakapalle Co-operative Agriculture and Industrial Society Limited v. Workmen & others reported as AIR 1963 SC 1489 (paras 9 and
17), Gurmail Singh & others v. State of Punjab & others reported as 1991 (2) LLJ 76 = AIR 1993 SC 1388 (para 16), Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti 4 WP No.11885/2021 Mahotsav Smarak Trust & others v. V.R. Rudani & others reported as (1989) 2 SCC 691 (para 20 and 21), Unnikrishnan, JP & others v. State of Andhra Pradesh & others reported as (1993) 1 SCC 645 (para 77) and Workmen of Meenakshi Mills Limited & others v. Minakshi Mills Limited & another reported as (1992) 3 SCC 336 (para 21).
8. In rebuttal, Shri Chanda Uday Singh, learned Senior Counsel assisted by Shri Sudeep Bhargava, learned counsel for respondents No.2 and 3 has opposed the petition; and it is submitted that the petition is misconceived and is liable to be dismissed as not maintainable, having preferred against a private party. Learned Senior Counsel has submitted that the relief sought by the petitioners is against respondent No.3 - Century Textiles Company, which is purely a private party; and is not an instrumentality of the State of Madhya Pradesh, as provided under Article 12 of the Constitution of India.
9. Counsel has further submitted that even otherwise, the relief sought by the petitioners cannot be claimed in a writ petition under Article 226 of the Constitution, as the remedy for the same lies under the provisions of the ID Act. Thus, it is submitted that the petition being devoid of merits, is liable to be dismissed on the preliminary grounds only.
10. In support of his contention, Shri Chandra Uday Singh, 5 WP No.11885/2021 learned Senior Counsel appearing for respondents No.2 and 3 has also relied upon various decisions rendered by the Supreme Court in the case of Jatya Pal Singh & others v. Union of India & others reported as (2013) 6 SCC 452 (paras 37, 39 and 42), K.K. Saksena v. International Commission on Irrigation & Drainage & others reported as (2015) 4 SCC 670 (paras 43 to 52), Ram Pravesh Singh & others v. State of Bihar & others reported as (2006) 8 SCC 381 (para 21), M/s. Maruti Udyog Limited v. Ram Lal & others reported as (2005) 2 SCC 638 (paras 21, 24 and 26) and Mettur Beardsell Limited v. Workmen & another reported as (2006) 9 SCC 488 (paras 8 to 14)
11. Learned counsel has also referred to s. 10 and s. 25 (S) of the ID Act to submit that the petitioners have an alternative efficacious statutory remedy available before the Industrial Court.
12. Heard learned counsel for the parties on the question of admission and perused the record.
13. So far as the maintainability of the petition under Art.226 of the Constitution of India is concerned, in the case of Jatya Pal Singh v. Union of India, (2013) 6 SCC 452, the Supreme Court has held as under: -
"37. We have considered the submissions made by the learned counsel for the parties. In essence, the learned counsel for the appellants have made only two submissions:
37.1. That in spite of the Government of India holding only 26.97% shares in VSNL now TCL, it would still fall 6 WP No.11885/2021 in the definition of State or other authority within the ambit of Article 12 of the Constitution. 37.2. Even if it is held that VSNL/TCL is a purely private entity, it would be amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution of India as it is performing a public function/public duty.
38. We are unable to accept the aforesaid submissions.
We have earlier set out in detail the manner in which the function which was earlier being performed by OCS which were gradually transferred with effect from 1-4- 1986 to VSNL. Since 13-2-2002, the Government of India holds only 26.12% shares of TCL. 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 TCL.
39. In order for TCL to be declared as "State" or other authority within the meaning of Article 12 of the Constitution of India, it would have to fall within the well- recognised parameters laid down in a number of judgments of this Court:
39.1. In Pradeep Kumar Biswas, 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. 39.2. The tests propounded for determining as to when the corporation will be said to be an instrumentality or agency of the Government as stated in Ramana Dayaram Shetty v. International Airport Authority of India were summarised as follows: (Pradeep Kumar Biswas case, SCC pp. 130-31, para 27) "(1) One thing is clear that if the entire share capital of the corporation is held by the Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. (Ramana Dayaram case, SCC p. 507, para 14) (2) Where the financial assistance of the State is so much as to meet almost entire expenditure 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 which is State- conferred or State-protected. (SCC p. 508, para 15) (4) Existence of deep and pervasive State 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) 7 WP No.11885/2021 (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)"
39.3. The aforesaid ratio in Ramana Dayaram Shetty has been consistently followed by this Court, as is evident from para 31 of the judgment in Pradeep Kumar Biswas. Para 31 reads as under: (SCC pp. 131-32) "31. 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."
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 are recorded in paras 39 and 40 as under: (Pradeep Kumar Biswas case, SCC pp. 133-34) "39. Fresh off the judicial anvil is the decision in Mysore Paper Mills Ltd. v. 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.
40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia 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 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."
39.4. In view of the aforesaid authoritative decision of the Constitution Bench (seven Judges) in Pradeep Kumar Biswas, it would be wholly unnecessary for us to consider the other judgments cited by the learned counsel for the parties.
8WP No.11885/2021
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42. It has been noticed earlier that ILDS functions, prior to 1986, were being performed by OCS, a department of the Ministry of Telecommunications. VSNL was incorporated under the Companies Act, 1956 as a wholly-owned government company to take over the activities of erstwhile OCS with effect from 1-4-1986. The employees of erstwhile OCS continue to work for VSNL on deputation till 1-1-1990. However, as noticed earlier, an option was given in 1989 to the pre-1986 employees for permanent absorption in VSNL. It was made clear to all the employees that they would be permanently absorbed in VSNL upon resigning from the Government of India. It was also made clear that these employees had the choice to remain as government employees but they would be transferred to surplus staff cell of the Government of India for redeployment against the vacancies in other government offices. It is an accepted fact before us that all the appellants opted to be absorbed in VSNL. They were, in fact, absorbed in VSNL with effect from 1-1-1990. In the staff notice issued on 11-12-1989, it was also made clear that OCS employees transferred to VSNL on deputation basis without deputation allowance on foreign service terms will cease to be government servants. It is, therefore, patent that the appellant accepted the absorption voluntarily. Therefore, it would be difficult to accept the submission of the learned counsel for the appellants that even after absorption in VSNL, the appellants continued to enjoy the protection available to them in OCS as government servants."
14. Senior counsel for the petitioners has also relied upon the decision rendered by the Supreme Court in the case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust & others v. V.R. Rudani & others (supra). Para No.21 of the same reads as under: -
"21. In Praga Tools Corporation v. Shri C.A. Imanual & others, [1969] 3 SCR 773, this Court said that a mandamus can issue against a person or body to carry out the duties placed on them by the Statutes even though they are not public officials or statutory body. It was observed (at 778): -
"It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A 9 WP No.11885/2021 mandamus can issue, for instance, to an official or a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their under- takings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public responsibilities. (See Halsbury's Laws of England (3rd Ed. Vol. II p. 52 and onwards)."
(Emphasis supplied)
15. Perusal of the aforesaid para clearly reveals that a mandamus can be issue against a person or body who carry out the duties placed on them by the Statutes even though they are not public officials or statutory body and the petition is maintainable. In the present case however, since the parties have resorted to the efficacious alternative remedy in the earlier round of litigation, this Court finds no reason to interfere at this juncture in the impugned show cause notice. Otherwise also, this court is of the considered opinion that the respondent Century Textile is purely a private com- pany and by no stretch of imagination can it be said that it performs any public function.
16. Testing the facts of the case on hand on the anvil of the aforesaid decision rendered by the Supreme Court in the case of Jatya Pal Singh (supra), this court finds force with the contention of Shri C.U.Singh, ld. Sr. Counsel that the petition is misconceived in as much as it has been preferred against a private company which is not a State as defined under Art.12 of the Constitution and as such, is 10 WP No.11885/2021 not amenable to the writ jurisdiction under Art.226 of the Constitution. Thus, on this ground only, the petition is liable to be dismissed.
17. So far as the availability of the alternative efficacious remedy is oncerned, from the record, this Court also finds that in the earlier round of litigation, when the assets and liability of the respondent - Century Textiles Company were being transferred to M/s. Wearit Global Limited, the Deputy Labour Commissioner, Indore, the dispute was referred to the Madhya Pradesh Industrial Tribunal, Indore (MP) under Section 10 of the ID Act; and the following reference was made: -
"D;k lsapqjh ;kuZ ,oa Msfue rFkk fo;fjV Xykscy fyfeVsM ds e/; fctusl VªkUlQj ,xzhesaV ds vuqlkj lsapqjh ;kuZ ,oa Msfue dk gLrkarj.k fo;fjV Xykscy fyfeVsM esa fd;s tkus ij gLrkarj.k ds le; fu;ksftr Jfedksa dks LosfPNd lsok fuo`fRr ;kstuk vFkok LosfPNd lsizs'ku ;kstuk dk ykHk fn;s tkus dk vkSfpR; gS ;fn gkW rks bldh D;k ;kstuk gksuh pkfg, ,oa bl laca/k esa izca/ku dks D;k funsZ'k fn;s tkus pkfg, \"
18. The aforesaid reference was challenged by the petitioner company in Miscellaneous Petition No.2296/2019 (Manager, Century Textile & Industry Limited v. President, Century Swatantra Ekta Parishad on the ground that its Business Transfer Agreement with Wearit Global Limited has come to an end and is not in existence hence such reference of the dispute has rendered infructuous and this court vide its order dated 25.11.2019 held as 11 WP No.11885/2021 under:-
"19. In the considered opinion of this Court, once the Business Transfer Agreement has come to end, the exercise which the Tribunal is carrying on, is certainly a futile exercise as the reference itself has become infructuous."
19. It is apparent from the aforesaid reference and the order passed by this court in Miscellaneous Petition No.2296/2019 that in the earlier round of litigation, the then representative of the worker union viz., President, Century Swatantra Ekta Parishad had contested the Miscellaneous Petition No.2296/2019 on the ground that the reference has been rightly made.
20. Similarly, in another Miscellaneous Petition No.2248/2019 (Factory Manager, Century Yarn / Denim Division of Century Textile & Industry Limited & another v. Textile Mazdoor Union, Khargone & others) which was also filed by the respondent Company, being aggrieved of the order passed by the M.P. Industrial Tribunal,Indore by which a direction was made to run the Unit of the Petitioner Company, this court allowed the petition vide order dated 25.11.2019.
21. Against the aforesaid order dated 25.11.2019 passed in Miscellaneous Petition No.2248/2019, Satendra Yadav & others (interveners) preferred Special Leave to Appeal (C) No.5671/2020; and on 05.06.2020 (Annexure P/10) the Supreme Court has passed 12 WP No.11885/2021 the following order: -
"We are not inclined to interfere with the judgment passed by the High Court. The Special Leave Petitions are, accordingly, dismissed. Pending application (s), if any, shall stand disposed of.
However, any application filed by the respondent under Section 25 (o) of the Industrial Disputes Act, 1947 shall be continued without being influenced by the observations made by the High Court on the viability of the unit. The undertaking given by the respondent regarding payment of wages shall be scrupulously complied with."
22. In such circumstances, this Court finds force with the contention raised by Shri Chandra Uday Singh that the petition is filed despite having efficacious alternative statutory remedy available to the petitioners under the provisions of Industrial Disputes Act, 1947.
23. Resultantly, the present petition being misconceived, is liable to be and is hereby dismissed at the threshold only. However, the petitioners are at liberty to take recourse to such legal remedies, as are available to them under law.
24. Accordingly, Writ Petition No.11885/2021 stands disposed of.
No costs.
(Subodh Abhyankar) Judge Pithawe RC RAMESH CHANDRA PITHWE 2021.08.04 15:38:25 +05'30'