Calcutta High Court (Appellete Side)
Sri Moinuddin vs Guest Keen William Ltd. & Ors on 22 December, 2011
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
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IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Sambuddha Chakrabarti
W. P. No. 17636W) of 2010
Sri Moinuddin
-Vs.-
Guest Keen William Ltd. & Ors.
For the petitioner : Mr. M. M. Roychowdhuri, Advocate.
For the respondents : Mr. Partha Bhanja Chowdhury, Advocate,
nos. 1 and 2 Mr. Sujit Sharma, Advocate.
For the respondent : Mr. Mihir Kundu, Advocate.
no. 4
Heard on : 08.12.2011
Judgement on : 22.12.2011
Sambuddha Chakrabarti, J.:
This petition under Article 226 of the Constitution of India has been filed seeking a writ in the nature of Mandamus commanding the respondents to show cause why the petitioner's wages for the period from 2 November 13, 2000 to June 30, 2008 shall not be paid in conformity with the Award of the learned Industrial Tribunal and in conformity with the order of the respondent no. 1 under the cover of a letter dated February 18, 1999, for an order to pay penal interest on an amount which was deducted by the respondent no. 1 from the petitioner's wages towards the deposit of provident funds.
The case as made out by the petitioner is that he was an employee of Messrs. Guest Keen William Limited, i.e., the respondent no. 1 herein. His service was terminated on December 20, 1980. He raised an industrial dispute through the trade union and the matter was referred to the Industrial Tribunal by the State Government and in the year 1986 an Award was passed by the Tribunal in favour of the petitioner directing the company to treat the petitioner to be on duty with full wages. A writ petition by the respondent no. 1 against the said Award failed. Thereafter the petitioner was paid wages by the respondent no. 1 for the period from December 20, 1980 to January 31, 1999 and from November 1, 2000 to November 12, 2000. While making such payment a large sum of money was deducted towards payment to the provident fund. Although such sum of money was deducted long ago it was only on December 5, 2007 that the amount was deposited with the Provident Funds authorities without any penal interest.
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The petitioner was granted voluntary retirement with effect from July 1, 2008.
The petitioner is aggrieved that he had not been fully paid the arrears of wages and other potential dues from November 13, 2000 to June 30, 2008. He had filed an application before the Assistant Labour Commissioner for the payment of wages for that period. The said application was contested by the employer. The Assistant Labour Commissioner after receiving the application and all the affidavits had verbally told the petitioner towards the end of the year 2004 that he had closed the case. The petitioner has alleged that in spite of many representations and demand of justice requesting the employer to reinstate him the employer did not reinstate him to his position. With these grievances the petitioner has filed the present writ petition for the reliefs mentioned before.
The stand of the respondents nos. 1 and 2 on the contrary is that it will appear from the reliefs sought for in the writ petition that the petitioner had demanded his alleged wages for the period from November 13, 2000 to June 30, 2008 from the respondent no. 1 which is a limited company and not a State within the meaning of Article 12 of the Constitution. As such the writ petition against a private respondent is not 4 maintainable. The further case of the respondents is this that the writ petitioner was paid his wages for different periods from December 1980 to November 12, 2000. On November 13, 2000 the company had declared suspension of operations in a particular division of the company where the petitioner was an employee and he came under its ambit. As such the petitioner was eligible for payment of wages till November 12, 2000. The respondents nos. 1 and 2 submitted that the company floated a Voluntary Retirement Scheme to which the petitioner had opted and he had received a sum of Rs. 4,24,222.79 in full and final settlement of all his dues. The learned Advocate for the respondents nos. 1 and 2 further submitted that the illegality or otherwise of a strike or lockout is within the jurisdiction of the Labour Court to decide and no dispute was referred to the Industrial Tribunal with regard to the justifiability of the lockout. The petitioner had resigned with effect from July 6, 2008 and in view of the lockout declared by the company he is not entitled to the wages from November 13, 2000 till the date of his retirement.
The respondent no. 4, i.e., the Officer-in-Charge, Sub-Regional Office, Employees' Providents Fund Organisation, Howrah, has affirmed an affidavit where the only substantial thing mentioned is that the respondent no. 1 though had deposited the provident funds contributions and pension from the back wages of the petitioner for the period from December 28, 5 1980 to March 31, 2000 the same, however, was not deposited with the Provident Funds authorities and it was only in December 2007 that the provident funds dues of the petitioner with effect from the year 1980 to the year 2001 had been deposited in the bank along with statutory interest under Section 7Q of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 amounting to Rs. 1,76,093/- and when the petitioner forwarded his claim in the appropriate form the provident funds dues had been paid to him as per the provisions of the said Act as full and final payment.
Mr. Roychowdhuri, the learned Advocate appearing for the petitioner had submitted that the respondent no. 1 company had stopped wages of the petitioner from November 13, 2000 on various illegal pleas. Therefore, an application was filed before the Assistant Labour Commissioner for recovery of the wages under the Award which was passed in his favour but the authority concerned did not pass any order. He also prayed for penal rate of interest as the employer had only belatedly deposited his provident fund.
To substantiate his case that a writ petition is maintainable against a private party the learned Advocate for the petitioner had further submitted that in addition to the employer the petitioner has prayed for a writ in the 6 nature of Mandamus against three other respondents as well. Moreover, he had submitted that the petitioner had not only prayed for the issue of Mandamus but also for an order and/or direction under Article 226 of the Constitution of India. In this connection the petitioner relied on the decision of Raja Ram Chandra Reddy & Anr. -Vs-. Rani Shankaramma & Ors., reported in AIR 1956 SC 319 for a proposition that where a statute provides that a particular officer should do a particular act then a Mandamus may lie to compel such officer to do such act. The learned Advocate for the petitioner further submitted that Mandamus may be issued against a company for it may be subjected to a public duty by a statute. In this connection the petitioner also relied on the case of Abani Bhusan Biswas -Vs.- Hindustan Cable Limited Burdwan & Ors., reported in AIR 1968 Cal. 124 and in the case of Borhan Kumar -Vs.- The Assistant Personnel Officer, Indian Oil Corporation, Refineries Division, Barauni Unit & Ors., reported in AIR 1971 Patna 174 with regard to the petitioner's acknowledgement that he had received all the money from the company and that he had no further claim against it.
Mr. Roychowdhuri submitted that the company had manufactured an illegal undertaking that the petitioner would not go in for any litigation. His further submission was that the undertaking given by him cannot take away the jurisdiction of the High Court to enforce the right of the 7 petitioner. The petitioner further maintained that the operation of the Award passed by the 3rd Industrial Tribunal in his favour was continuing. According to the petitioner the Voluntary Retirement Scheme has no force of law as the same was not sent to the Assistant Secretary, Labour Department, Government of West Bengal as also Conciliation Officer.
The facts of this case are not in dispute. The writ petitioner was an employee of the respondent no. 1. He was terminated from service in December 1980 and the Industrial Tribunal had reinstated him with full back wages in the year 1986. After an unsuccessful challenge the company reinstated him but found itself unable to give a suitable posting immediately. The petitioner was informed that he would be paid his wages but he would not have to report for duties as he was treated to be deemed to be in service.
There seems to be sufficient justification in the submission of the learned Advocate for the respondent that by this writ petition the petitioner was in fact seeking reliefs against the company. If we closely look at the reliefs sought for by the petitioner it is obvious that the petitioner has prayed for a writ in the nature of Mandamus commanding the respondents to pay his wages from November 13, 2000 to June 30, 2008. Such payment of wages can be made only by his employer. The respondents 8 have categorically argued that this employer, i.e., the respondent no. 1 herein is a company which is a juristic person but is not a State within the meaning of Article 12 of the Constitution. The company was registered under the Companies Act and had never discharged any public duty.
To fasten the company with the liability of discharging public duty the learned Advocate for the petitioner submitted that under the West Bengal Factories (Welfare Officers) Rules, 1971 in every factory wherein 500 or more workers are ordinarily employed the minimum number of full- time Welfare Officers to be employed by the occupier has been indicated according to the number of workers. The petitioner has desperately tried to draw an analogy between a factory and the respondent no. 1 and submitted that an industry is also a factory and the respondent no. 2 and the Personnel Manager of the Company also discharged the statutory duties as their duty also was to look after the welfare of the employees. In elaborating his submission Mr. Roychowdhuri relied on Rule 9 of the said Rules where the duties of the Welfare Officers have been laid down. He particularly relied on Rules 9(e), 9(f), 9(i), 9(l), 9(n) and 9(q) and submitted that these duties as mentioned in different provisions clearly indicate that they relate to either labour matters or personnel problems or settlement of disputes or problems arising out of industrial relations. If it is the statutory duty of a Welfare Officer to discharge these functions then he is a statutory 9 authority and the writ most certainly lies against such officers of the company as they were discharging a statutory duty. To justify his submission Mr. Roychowdhuri further referred to Section 9(c) of the Industrial Disputes Act which provides for the establishment of a Grievance Cell in a certain class of industries. Mr. Roychowdhuri stretched his submission to the point that since it was the duty of the respondent no. 1 to set up a Grievance Cell for the settlement of grievances the respondent no. 2 can most certainly be considered to be a statutory authority and writ most certainly lies against the respondent no. 2 who is the President of the company. He has drawn the analogy of the West Bengal Factories Welfare Officers Rules and submitted that in a factory even if it is privately managed where there is a Welfare Officer appointed in terms of the said rules that Welfare Officer is a statutory authority and is amenable to the writ jurisdiction.
Such submission is clearly not acceptable. An employee or a class of employees appointed by a private body following the requirement as indicated in a statute does not become a statutory authority or a State within the meaning of Article 12 of the Constitution of India. It is not infrequent that for the proper discharge of duties and for various other purposes the statute may frequently lay down the establishment of certain posts in certain establishments. When in compliance of these requirements 10 these posts are created by absolutely private bodies the holders of these posts do not become statutory authorities. The petitioner could not dispute the juristic status of the concerned company. It is a limited company registered under the Companies Act and entirely managed privately. There is no state control and as such it will be an absurd thing to claim that it is amenable to the writ jurisdiction. Such submission does not stand a moment's scrutiny and has no legal podium to stand.
The petitioner has strongly relied on the case of Raja Ram Chandra Reddy and Another (supra) for a proposition that where a statute provides a particular officer should do a particular act then a Mandamus may lie to compel such officer to do such act. Unfortunately, such a proposition of law, although is very well accepted, has not been found in the concerned judgement. That apart, that case related to basically a civil dispute between a widow and her daughter with regard to the inheritance of Late Raja Durga Reddy. The order of the Revenue Minister was challenged under Article 226 of the Constitution. This judgement has absolutely no application to the facts of this case. The law on this point is very well settled that when a statute requires a particular officer to do a certain thing under the statute a writ of Mandamus most certainly lies against him. But the respondent no. 1 is a private company and has never been 11 borne out of a statute. The officers also are not governed by any statute. As such they do not discharge any public duty.
Mr. Roychowdhuri has also relied upon the decision of Hari Raj Singh
-Vs.- Sanchalak Panchayat Raj U. P. Government Lucknow & Ors., reported in AIR 1968 (All.) 246 for a proposition of law that under Article 226 of the Constitution the High Court can compensate an aggrieved person in any reasonable manner for any loss suffered by him due to non-payment of dues. The petitioner submitted that the respondent no. 4, i.e., the Provident Funds authorities are created for realization of the benefits of the provident funds and the respondent no. 3, i.e., the Assistant Labour Commissioner is the particular authority for the recovery of wages under Section 33-C of the Industrial Disputes Act. While there is no dispute that a Writ Court in an appropriate case can most certainly direct interest to be paid to the writ petitioner for any amount which has been improperly held by the respondents. The judgement, however, has no application to the facts of this case. The Allahabad High Court was in fact dealing with a petition where two orders passed by the Government of Uttar Pradesh and the Directorate of Panchayat Raj Uttar Pradesh respectively were challenged. By these two orders it was held that the petitioner was not entitled to his salary for a certain period as his claim was time barred. The respondents in that case before the Allahabad High Court and the 12 respondents here are entirely different bodies. That apart, how the question of Section 33-C of the Industrial Disputes Act comes in is not clear. Section 33-C relates to the recovery of money from an employer.
The next decision relied on by the petitioner is Abani Bhusan Biswas (supra) for a proposition that even a private party or a company may be compelled by a Mandamus to perform the duties imposed upon it by a statute. Learned Lawyer for the petitioner seems to have overlooked that in this particular case there was violation of the standing order as the learned Single Judge while coming to this conclusion had decided the legal character of the standing orders made under the Industrial Employment (Standing Orders) Act, 1946 and relied on a decision of the Apex Court for a proposition that after a standing order is certified by the statutory authority it becomes part of the statutory terms and conditions of service between the employers and the employees. It was also decided that the standing orders have the force of law after they are duly certified like any other statutory instruction. Moreover, the respondent in that case was Hindustan Cables Limited which was a Government of India undertaking owned by the Central Government within the meaning of Section 617 of the Companies Act in which the Central Government was the sole shareholder. The proposition of law laid down in a judgement must be read in the context of the facts of that particular case and a stray observation 13 taken out from the body of the judgement and trying to apply it as laying down of a law of universal application is not the proper way of reading a judgement.
The next decision is that of Borhan Kumar (supra) for a proposition similar to that relied on by the petitioner in the case of Abani Bhusan Biswas (supra). In fact, the Single Bench judgement of Abani Bhusan Biswas (supra) of the Calcutta High Court was relied upon in the case of Borhan Kumar (supra). Facts of that particular case clearly make it inapplicable to the facts of the case in hand. In that case the petitioner had challenged his retrenchment with a prayer that the Labour Commissioner and the Sate of Bihar might be directed to refer the petitioners dispute for adjudication under Section 10 read with Section 12 of the Industrial Disputes Act. It was the specific case that the petitioner and his union had raised industrial dispute and had personally approached the Labour Officer of the area as well as the Labour Commissioner for the State who had refused to refer the disputes for adjudication. Moreover, the petitioner was an employee of Barauni Oil Refinery which was a limited company in which all the shares were held by the Central Government in different names. Where a company whose shares are exclusively held by Central Government, the company is amenable to the writ jurisdiction and the 14 other reliefs sought for are against the respondents who are clearly statutory authorities.
It is not clear how the ratios decided in these cases can be made applicable to a private company where no share is held by the Government or deep and pervasive control of the Government is absent. In others words, the status of a private limited company is very different from a Government Company. The respondent no. 1 company has neither been created by any statute nor was discharging any public duty nor was it under any financial, functional or administrative control of the Government. In the case of Praga Tools Corporation -Vs.- C. V. Imanual and Others, reported in AIR 1969 S C 1306 it was held that a "company being a non-statutory body and one incorporated under the Companies Act there is neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could sought by means of a mandamus nor is there in its workmen any corresponding legal right for enforcement of any such statutory or public duty". Such being the legal position writ against an absolutely private body is not maintainable. The petition on this ground alone is liable to be dismissed.
Even otherwise it is not understood how the petitioner can maintain this writ petition or sustain his purported claim against the respondents 15 nos. 1 and 2. The petitioner has himself accepted the Voluntary Retirement Scheme floated by the company. While intimating his consent to avail himself of this scheme he tendered his resignation from service with effect from July 1, 2008. He confirmed that on receipt of the amount he or anyone else on his behalf will not have any dispute or claim of any sort including the claim of service at any future date. It appears from Annexure P-10 to the writ petition that the writ petitioner had issued a receipt to the effect that he had received a sum of Rs. 4,24,222.79 from the employer, i.e., the respondent no. 1 in full and final settlement of all his dues mentioned in the receipt consequent upon his resignation from service. Even in the said receipt also he had categorically confirmed that he did not have any other claim or dispute against the company at any date in future including the proceedings pending before the 4th Industrial Tribunal under an order of reference dated February 14, 2006 or in connection with any other legal proceeding in any Court. The contention of the writ petitioner that such undertaking cannot take away the jurisdiction of the High Court to enforce the right of the petitioner is absolutely baseless. It has been submitted on behalf of the respondents nos. 1 and 2 that no dispute regarding the legality or justifiability with regard to the lockout declared on November 13, 2000 was referred to any Industrial Tribunal. The petitioner has also not disputed this fact. In such view of the matter the petitioner 16 has not been able to make out how he is entitled to the wages for this period. Moreover, it is not understood how in view of Section 19(3) of the Industrial Disputes Act the Award which was passed in the year 1986 can remain in operation beyond the period of one year form the date on which the Award became enforceable.
After the petitioner has accepted the Voluntary Retirement Scheme and the benefits flowing from the said scheme he is estopped from raising any further claim against his former employer. This is all the more so when he had issued a receipt that he had received his benefits in full and final settlement of all his claims and shall have no claim against the company in future. In this connection reference may be made to the case of A. K. Bindal and Anr. -Vs.- Union of India and Ors., reported in (2003) 5 SCS 163 wherein the Supreme Court had held:
"34. This shows that a considerable amount is to be paid to an employee ex gratia besides the terminal benefits in case he opts for voluntary retirement under the Scheme and his option is accepted. The amount is paid not for doing any work or rendering any service. It is in lieu of the employee himself leaving the services of the company or the industrial establishment and foregoing all his claims or rights in the same. It is a package deal of give and take. That is why in the business world it is known as "golden handshake". The main purpose of paying this amount is to 17 bring about a complete cessation of the jural relationship between the employer and the employee. After the amount is paid and the employee ceases to be under the employment of the company or the undertaking, he leaves with all his rights and there is no question of his again agitating for any kind of his past rights with his erstwhile employer including making any claim with regard to enhancement of pay scale for an earlier period. If the employee is still permitted to raise a grievance regarding enhancement of pay scale from a retrospective date, even after he has opted for Voluntary Retirement Scheme and has accepted the amount paid to him, the whole purpose of introducing the Scheme would be totally frustrated.
35. The contention that the employees opted VRS under any kind of compulsion is not worthy of acceptance. The petitioners are officers of the two Companies and are mature enough to weigh the pros and cons of the options which were available to them. They could have waited and pursued their claim for revision of pay scale without opting for VRS. However, they in their wisdom thought that in the fact situation VRS was a better option available and chose the same. After having applied for VRS and taken the money it is not open to them to contend that they exercised the option under any kind of compulsion. In view of the fact that nearly ninety-nine per cent of employees have availed of the VRS Scheme and have left the Companies (FCI and HFC), the writ petition no longer survives and has become infructuous."18
This being the settled position of law the writ petitioner cannot be heard to agitate about his claim against his former employer.
Thus, considered from all aspects this writ petition has no merit at all and the same is dismissed.
There shall, however, be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.
(Sambuddha Chakrabarti, J.)