Allahabad High Court
Associated Journals ... vs Ramesh Kumar Shukla & Ors. (In Re ... on 31 January, 2017
Author: Sudhir Agarwal
Bench: Sudhir Agarwal, Anant Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 3 Civil Misc. Delay Condonation Application No. 28412 of 2013 IN Case :- SPECIAL APPEAL DEFECTIVE No. - 166 of 2013 Appellant :- Associated Journals Ltd. Through Administrator Lt. Col.(Retd.) Prem Shankar Tripathi Respondent :- Ramesh Kumar Shukla and others (In Re W.P.No. 2600 (S/S)/1993) Counsel for Appellant :- Chandra Bhushan Pandey, Rohit Tripathi Counsel for Respondent :- C.S.C., Dr. L.P. Misra Hon'ble Sudhir Agarwal,J.
Hon'ble Anant Kumar,J.
1. This is an application seeking condonation of delay in filing this appeal.
2. Heard.
3. Delay in filing this appeal is explained satisfactorily. It is hereby condoned. The application is accordingly allowed.
4. The delay in filing this appeal having been condoned vide order of date passed on Delay Condonation Application, let appeal be registered with regular number and old number shall also continue to be shown in bracket for finding out details of case, whenever required by parties with reference to either of the two number.
Order Date :- 31.1.2017 Shubham AFR Court No. - 3 Case :- SPECIAL APPEAL DEFECTIVE No. - 166 of 2013 Appellant :- Associated Journals Ltd. Through Administrator Lt. Col.(Retd.) Prem Shankar Tripathi Respondent :- Ramesh Kumar Shukla and others (In Re W.P.No. 2600 (S/S)/1993) Counsel for Appellant :- Chandra Bhushan Pandey, Rohit Tripathi Counsel for Respondent :- C.S.C., Dr. L.P. Misra Hon'ble Sudhir Agarwal,J.
Hon'ble Anant Kumar,J.
1. Delay having been condoned vide order of date passed on Delay Condonation Application, as requested by learned counsel for parties, we proceed to hear and decide this appeal today itself under the Rules of the Court.
2. Heard Sri C.B. Pandey, learned counsel for appellant and Dr. L.P. Misra, Senior Advocate assisted by Sri Praful Tiwari, Advocate for respondent.
3. This intra Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as "Rules, 1952") has arisen from judgment and order dated 17.10.2013 passed by learned Single Judge in Writ Petition No. 2600 of 1993 (S/S).
4. Learned Single Judge has allowed writ petition and declared petitioner-respondent-1 to be deemed in service w.e.f. 11.02.1993. Since he attained age of superannuation, appellant has been directed to pay salary alongwith other benefits to petitioner-respondent-1 with all retiral benefits.
5. Petitioner-respondent-1 filed Writ Petition No. 2600 (S/S) of 1993 stating that Associated Journals Limited, Lucknow (hereinafter referred to as "Appellant") is publishing journals, i.e., National Herald, Navjivan and Qaumi Awaz. Petitioner-respondent-1 was employed as Chief Proof Reader (Navjivan in 1973) in the establishment of appellant. He proceeded on sanctioned casual leave for two days i.e. on 09-10.02.1993 whereafter due to alleged illness did not resume duty and sent application dated 11.02.1993 through registered postal delivery requesting for grant of medical leave for the period 11.02.1993 to 26.03.1993.
6. On 21.03.1993, petitioner-respondent-1 got information that a news item has been published that petitioner-respondent-1's lien on the post of Chief Proof Reader has seized since he has over-stand sanctioned leave. Petitioner-respondent-1 then approached appellant stating that he has sent application seeking medical leave but of no avail.
7. It is said that under clause 11 of Standing Orders applicable to working journalist, it is provided that services of a permanent journalist cannot be terminated unless procedure under Standing Order No. 15 is followed and, therefore, termination of services of petitioner-respondent-1 by the appellant was illegal.
8. Petitioner-respondent-1, thus, sought a relief of mandamus commanding respondents-1 and 2, i.e., appellant-M/s Associated Journals Limited and Manager of the said Company to treat petitioner-respondent-1 in continuous service notwithstanding notice published in Navjivan dated 21.03.1993, sanction leave on medical ground from 11.02.1993 to 26.03.1993 and give all consequential benefits. He had also sought a writ, order or direction of the appropriate nature in declaring para VI(9) of Associated Journals Limited-Conditions of Employment (Standing Orders) as illegal and arbitrary.
9. Appellant has challenged aforesaid order stating that in a dispute of termination of employment of service of a private employer, a writ under Article 226 of Constitution of India was not maintainable and, therefore, judgment under appeal is liable to be set aside. Sri C.B. Pandey, learned counsel for appellant placed reliance on the judgments of Supreme Court in Shalini Shyam Shetty and another Vs. Rajender Shankar Patil (2010) 8 SCC 329; Binni Ltd. and another Vs. V. Sadasivam and others (2005) 6 SCC 657; and a Division Bench judgment of this Court in Dr. S.K.C. Charan Vs. Ashwin M. Singh and others (2007) 1 ESC 597 (AII) (DB), to buttress his submission.
10. Dr. L.P. Mishra, learned counsel for respondents on the contrary submitted that appellant is an establishment discharging public functions and public duties, being a media house, and therefore, writ petition against appellant is maintainable. He placed reliance on the judgment of learned Single Judge of Delhi High Court in ABC Vs. Commissioner of Police and others (Writ Petition No. 12730/2005) decided on 05.02.2013 and Supreme Court's decisions in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanati Mahotsav Smarak Trust and others Vs. V. Rudani and others, (1989) 2 SCC 691; Federal Bank Ltd. Vs. Sagar Thomas and others (2003) 10 SCC 733; VST Industries Ltd. Vs. VST Industries Workers Union and another (2001) 1 SCC 298.
11. Short but a jurisdictional question raised in this appeal is "whether writ petition at the instance of petitioner-respondent-1 against appellant in the matter of termination of petitioner's services is maintainable or not."
12. At the outset, it is evident that petitioner-respondent-1 is an employee of private body, i.e., appellant and is seeking enforcement of a contract of a personal service against private body or a non-statutory body or complaining that there is a breach of a contract of service which should be declared illegal and the contract should be restored.
13. A writ of mandamus would lie for the purpose of securing performance of a public or a statutory duty. Jurisdiction conferred upon this Court to issue a writ of mandamus under Article 226 of Constitution of India though very wide but it is also an accepted principle that it is a public law remedy and it is available against a body or person performing a public law function.
14. A distinction has always been drawn between public duties enforceable by mandamus that are statutory and duties arising merely from contract. Contractual duties are enforceable as matters of private law by ordinary contractual remedies such as damages, injunction, specific performance and declaration, are not enforceable by mandamus. It is true that a writ of mandamus has been held to be maintainable against a private body but only when such private person discharging duties as public functionary.
15. In Shalini Shyam Shetty Vs. Rajender and others (supra) though it was a matter arising from rent control dispute and a writ petition was entertained under Article 226/227 (para 5) of the judgment, Court observed that writ petition is a remedy in public law which may be filed by any person but the main respondents should be either Government, or Governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated with State or instrumentalities of a State. In the phraseology of Article 226 of Constitution of India, High Court may issue writ to any person but the person against whom writ petition is filed, must have some statutory or public duty to perform.
16. In Federal Bank Ltd. Vs. Sagar Thomas and others (supra) after referring to earlier decisions, Court in para 18 of the judgment said;
"18. From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Government); (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function."
17. In Binni Ltd. and another Vs. V. Sadasivam and others (supra), Court reiterated in para 9 that jurisdiction conferred on the High Court under Article 226 of Constitution of India is very wide. However, it is an accepted principle that this is a public law remedy and it is available against a body or person performing a public law function.
18. It further said that a writ of mandamus lies to secure performance of a public or a statutory duty. The prerogative remedy of mandamus has long provided the normal means of enforcing performance of public duties by public authorities.
19. Court further said that statutory duty imposed upon public authorities may not be of discretionary character. A distinction had always been drawn between public duties enforceable by mandamus that are statutory and duties arising merely from contract. Contractual duties are enforceable as matters of private law by ordinary contractual remedies such as damages, injunction, specific performance and declaration. Court quoted a passage from Administrative Law (9th Edition) by Sir William Wade and Christopher Forsyth, Oxford University Press at Page 621 which reads as under:-
"A distinction which needs to be clarified is that between public duties enforceable by mandamus, which are usually statutory, and duties arising merely from contract. Contractual duties are enforceable as matters of private law by the ordinary contractual remedies, such as damages, injunction, specific performance and declaration. They are not enforceable by mandamus, which in the first place is confined to public duties and secondly is not granted where there are other adequate remedies. This difference is brought out by the relief granted in cases of ultra vires. If for example a minister or a licensing authority acts contrary to the principles of natural justice, certiorari and mandamus are standard remedies. But if a trade union disciplinary committee acts in the same way, these remedies are inapplicable: the rights of its members depend upon their contract of membership, and are to be protected by declaration and injunction, which accordingly are the remedies employed in such cases."
20. Explaining the distinction between public function and private functions, Court held that a body can be said to be performing "public functions" when it seeks to achieve some collective benefit for the public or a section of public and is accepted by public or that section of public as having authority having to do so.
21. In para 16 of the judgment in Binni Ltd. and another Vs. V. Sadasivam and others (supra), Court said that in the matter of employment of workers by private bodies on the basis of contracts entered into between them, courts have been reluctant to exercise powers of judicial review and whenever the powers were exercised as against private employers, it was solely done based on public law element involving therein.
22. In the present case, mere fact that appellant is a media house and performing functions of publishing newspapers, etc., it cannot be said that petitioner-respondent was enforcing a public duty or statutory obligation on the part of appellant. Writ Petition was filed by petitioner-respondent-1 for enforcement of his own individuals contractual rights. Therefore, in our view, writ petition was not maintainable. Learned Single Judge has not looked into this aspect of the matter correctly.
23. Appeal is accordingly allowed. Impugned judgment dated 11.07.2013 is hereby set aside and the writ petition of petitioner-1 is hereby dismissed.
Order Date :- 31.1.2017 Shubham