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V.S. Hariharan, In Re
Structured Summary of the Opinion
Factual and Procedural Background
The petitioner was employed by Hindustan Shipyard Ltd. as Superintendent of the Stores from 6-11-1952 until 30-6-1959. In 1955, shortages occurred in the stores and suspicion fell on the petitioner. He was suspended and disciplinary charges were framed. Before final disciplinary orders were passed, the matter was handed to the police; the petitioner was arrested and prosecuted under Section 420 IPC (Criminal Case No. 287 of 1957). After trial he was acquitted on 9-3-1959. The petitioner then sought reinstatement. On 29-6-1959 the Managing Director notified him to report for duty on 30-6-1959; upon reporting, the petitioner was served with an order terminating his services with effect from 30-6-1959 under sub-rule 1 of Rule 24 of the Officers' Service Rules of the Company, with six months' salary and dearness allowance in lieu of notice payable (amounts were paid). The petitioner and the Officers' Association made representations to rescind the termination order, but were unsuccessful. The petitioner filed this petition under Article 226 of the Constitution seeking a writ of certiorari to quash the Managing Director's order dated 30-6-1959.
Legal Issues Presented
- Whether a writ of certiorari under Article 226 of the Constitution of India can be issued to Hindustan Shipyard Limited, a company registered under the Indian Companies Act.
- Whether the impugned termination order dated 30-6-1959 is liable to be quashed (i.e., whether the Company acted in a manner subject to judicial review by certiorari).
Arguments of the Parties
Petitioner's Arguments
- The petitioner sought an order of certiorari under Article 226 to quash the Managing Director's termination order of 30-6-1959.
- It was argued that the expression "any person" in Article 226 is of wide import and therefore includes a limited liability company like Hindustan Shipyard Ltd.
- The petitioner relied on the company's close connection with the Government of India: the Union Government subscribed 80% of the share capital, 10 of 13 directors were government-nominated, and the company received large subsidies and advances from the Shipping Development Fund — these facts were advanced to show effective governmental control and thereby bring the company within Article 226 jurisdiction.
Respondent Company's Position (as described in the opinion)
- The Company is a body incorporated under the Indian Companies Act, governed by its Memorandum and Articles of Association, and administered by a Board of Directors.
- Implicit in the opinion is the company's position (or the legal point accepted by the Court) that being an incorporated company with its own share capital and corporate structure, it is not a judicial or quasi-judicial tribunal nor a statutory public authority subject to writs of certiorari in the same manner as courts or statutory tribunals.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Province of Bombay v. Khushaldas S. Advani, 1950 SCR 621 : AIR 1950 SC 222 | Statutory bodies whose powers resemble inferior courts are quasi-judicial and their decisions are quasi-judicial. | Used to explain the category of "statutory/quasi-judicial bodies" that may be amenable to prerogative writs; distinguished from private companies. |
| R. v. Disputes Committee of the National Joint Council for the Craft of Dental Technicians, (1953) 1 All ER 327 | English authority that courts do not issue certiorari to private bodies having no juridical or quasi-judicial authority. | Applied to support the proposition that English practice excludes writs to purely private bodies and that the same principle applies in India. |
| Lee v. The Showmen's Guild of Great Britain, (1952) 2 QB 329 | Another English case emphasizing that writs of certiorari are not normally issued to private bodies lacking judicial or quasi-judicial authority. | Reinforced the English practice relied upon by the Court and adopted as analogous reasoning for India. |
| Nagabhushana Reddy, In Re: (1950-2 Mad LJ 278) : AIR 1951 Mad 249 | Under Article 226 a writ could originally issue only against inferior courts, tribunals or bodies entrusted by law with powers affecting rights of parties. | Cited to support the limited ambit of Article 226 remedies in India — writs issue only against bodies with legally entrusted adjudicatory powers. |
| Indian Tobacco Corporation v. State of Madras, 1954-1 Mad LJ 429 : AIR 1954 Mad 549 | Mandamus will be issued to compel performance of public duties and not for enforcing mere private rights arising from contract or otherwise. | Used to illustrate that writs of public enforcement (mandamus) are not available to vindicate mere private contractual rights against private bodies. |
| Sohanlal v. Union of India, 1957 SCJ 489 : AIR 1957 SC 529 | Generally, mandamus does not issue against private individuals. | Referred to confirm the general rule that orders in the nature of mandamus are not made against private parties. |
| R. v. Electricity Commissioners, (1924) 1 K.B. 171 (Atkin, L.J.) | Classic statement: writs issue whenever any body with legal authority to determine questions affecting rights and duty to act judicially acts in excess of authority. | Provided the test adopted by Indian courts for determining when certiorari is available — whether the body has legal adjudicatory authority and duty to act judicially. |
| King v. London County Council, (1931) K.B. 215 (Slessor, L.J.) | Further exposition of the Electricity Commissioners test; accepted as correct exposition of circumstances for certiorari. | Cited as confirming authority for the test; the Court noted Indian courts accept this exposition. |
| Ram Kishun v. Central Bank of India Ltd., AIR 1958 All 413 | Central Bank held not to be a judicial body or tribunal for purposes of issuing writs of certiorari in disciplinary matters. | The Court agreed with the principle and applied it analogously to hold that a corporate employer that is not a statutory/quasi-judicial body is not amenable to certiorari. |
| Sekkilar v. Krishnamurthi (1951) 2 Mad LJ 568 : AIR 1952 Mad 151 | Where a college was affiliated and governed by university statutes, the college principal could be regarded as exercising quasi-judicial authority. | Distinguished by the Court: affiliation to a statutory university can impart quasi-judicial character, but that reasoning does not extend to an incorporated company. |
| University of Madras v. Shantha Bai (1953) 2 Mad LJ 287 : AIR 1954 Mad 67 | Consideration whether the University was "the State" under Article 12; distinction between state-maintained and state-aided institutions. | Cited for the distinction between state-maintained and state-aided institutions; Court held the case had no direct bearing because the respondent-company was not a state-maintained institution and no fundamental-rights issue arose. |
Court's Reasoning and Analysis
The Court first identified the central procedural threshold question: whether Article 226 remedies (specifically certiorari) can be directed to the respondent, Hindustan Shipyard Ltd., a company incorporated under the Indian Companies Act. The Court examined the text of Article 226 and the phrase "any person," noting that although the General Clauses Act defines "person" to include companies, that expression must be read in context with the nature of the writs enumerated in Article 226.
The opinion then invoked the well-established comparative and historical test derived from English jurisprudence: writs (including certiorari) are available against bodies that have legal authority to determine questions affecting rights and have the duty to act judicially (the Atkin L.J. formulation in R. v. Electricity Commissioners), a test endorsed and elaborated by subsequent authorities (e.g., King v. London County Council). Indian authorities were cited to the same effect: writs are generally aimed at inferior courts, tribunals or statutory/quasi-judicial bodies entrusted with adjudicatory powers.
Applying that test, the Court analysed the jural character of Hindustan Shipyard Ltd. The Company is an incorporated limited liability company, governed by its Memorandum and Articles, administered by a Board of Directors. The petitioner argued that the Union Government's extensive shareholding (80%), nomination of 10 of 13 directors, and financial subsidies/advances effectively placed the company under governmental control such that Article 226 should apply. The Court rejected that submission: those facts, in the Court's view, did not alter the company's fundamental corporate character — it remained a limited liability company, not a creature of statute or a public authority charged with adjudicating rights in a judicial or quasi-judicial capacity.
The Court distinguished cases where bodies do derive quasi-judicial character from statutory creation (for example, a college affiliated to a statutory university may partake of the University's character). The Court held that the rationale for treating certain educational institutions as quasi-judicial (because of statutory affiliation/administration) does not extend to a private company with its own share capital and profit motive.
The Court relied on analogous precedent (e.g., Ram Kishun v. Central Bank of India Ltd.) that refused certiorari against a bank in disciplinary matters and agreed with that principle as applicable here. Having reached the conclusion that the respondent company is not a judicial or quasi-judicial tribunal or a public/statutory authority discharging judicial/quasi-judicial functions, the Court held that certiorari could not be directed against it.
Because of this conclusion on jurisdictional grounds, the Court expressly stated it was unnecessary to decide whether the termination order contravened sub-rule 1 of Rule 24 of the Officers' Service Rules or whether such a contravention would give rise to a cause of action.
Holding and Implications
Holding: Petition dismissed.
Direct consequence for the parties: the petition under Article 226 seeking certiorari to quash the Managing Director's order of 30-6-1959 fails and is dismissed. The Court's dismissal is grounded on the jurisdictional conclusion that Hindustan Shipyard Ltd., as a registered private company, is not a body amenable to certiorari because it is not a statutory or quasi-judicial authority entrusted with legal adjudicatory powers.
Broader legal implication (as stated and applied by the Court): the availability of writs under Article 226 depends on the adjudicatory character of the defendant body; corporate entities incorporated under the Companies Act do not, by virtue of government shareholding or government-nominated directors alone, become quasi-judicial or statutory bodies subject to certiorari. The Court did not decide the merits of the termination order under the Company's service rules because the jurisdictional bar rendered such consideration unnecessary.
KC/R.G.D
End of summary — based exclusively on the provided opinion text.
1. This is a petition filed under Art. 226 of the Constitution of India for the issue of a writ of certiorari to the respondent, the Managing Director, Hindustan Shipyard Ltd., Visakhapatnam, and to quash his order PD/36/26 dated 80-6-1959.
2. The petitioner was employed in the respondent-company as a Superintendent of the Stores from 6-11-52 till 30-6-59. In 1955 there were certain shortages in the stores and suspicion fell on the petitioner. He was placed under suspension and charges were framed against him with a view to take disciplinary action. He submitted his explanation. But before any final orders were passed on that enquiry the matter was entrusted to the police, who arrested the petitioner and registered the case against him under S. 420 I.P.C (C.C No. 287 of 1957). After trial the criminal case was decided in favour of the petitioner and he was acquitted on 9-3-1959. Thereafter, the petitioner requested the respondent-company to reinstate him in service. On 29-6-1959 the Managing Director of the respondent-company notified to the petitioner that he should report himself to duty at 9-45 a.m on 30-6-1959. After he reported himself at about 10-45 a.m on 30-6-1959, he was served with an order to the effect that his services were terminated with effect from 30-6-1959 under sub-rule 1 of Rule 24 of the Officers' Service Rules of the Company, and that the Chief Accountant would pay six calendar months' salary together with dearness allowance in lieu of notice in terms of the above rule along with the other dues. The amounts were duly paid. After receiving the above order, the petitioner and the Officers' Association made unavailingly certain representations to the Managing Director that the order terminating the petitioner's services should be rescinded. The petitioner got no relief. This petition therefore, is filed by him for quashing of the order of the Managing Director D/- 30-6-1959, as being unjust and in contravention of the terms of sub-rule 1 of Rule 24 of the Officers' Service Rules of the Hindustan Shipyard Ltd.
3. It is not the case of the petitioner that he is a member of a civil service of the Union or the State Government, or that he holds a civil post under the Union Government or the State Government to whom Art. 311 of the Constitution or the appropriate Union or State Service Rules would apply, and the infraction of which would entitle him for applying for a writ of certiorari.
4. The question, therefore, is whether in the circumstances of this case, a writ could issue to the respondent company and whether the impugned order is liable to be quashed.
5. The Hindustan Shipyard Limited, is a Company registered under the Indian Company's Act, governed by its own Memorandum and Articles of Association and its affairs are administered by a Board of Directors. Article 226 of the Constitution provides that the High Court could issue to any person or authority, including in appropriate cases any Government within whose territories, directions, orders or writs, including writs in the nature of habeas corpus, Mandamus, prohibition, quo-warranto, and certiorari, or any of them for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose. It was sought to be argued that the expression “any person” used in Article 226 is of wide import and it would take in a case of a limited liability company like the respondent-company. It is true that the expression “person” as defined in Section 3 Clause 39 of the General Clauses Act includes a company or association or body of individuals whether incorporated or not. But the expression ‘person’ cannot be detached from the context and viewed apart from the nature of the writs that are enumerated in the article.
6. It is now well established that the purposes for which and the conditions under which these writs could be issued in India by the Supreme Court or the High Courts as the case may be, are analogous to the purposes for and the circumstances under which similar writs were and are issued by the Court of King's Bench Division in England. In England these writs had their origin in the exercise of the King's prerogative powers of superintendence over the due observance of the law by his officials and tribunals and were issued by the court of the King's Bench. But gradually the scope of the prerogative writs was enlarged over various bodies or authorities which are not courts in the strict sense, but which by statute were invested With powers and duties resembling those of inferior courts.
7. These statutory bodies are considered quasi-judicial bodies and their decisions as quasi-judicial decisions (vide Province of Bombay v. Khushaldas S. Advani, 1950 SCR 621 at p. 698 : (AIR 1950 SC 222 at p. 250). The writ of certiorari, as the very expression itself would imply, is issued in England for the purpose of knowing Whether any proceedings commenced against a subject are in conformity with the law. It is not the practice of the English Courts to issue writs of certiorari to a private body or tribunals having no juridical or quasi-judicial authority (vide R. v. Disputes Committee of the National Jt. Council for the Craft of Dental Technicians, 1953-1 All ER 327 and in Lee v. The Showmen's Guild of Great Britain, (1952) 2 QB 329. The same principles would apply in India.
8. In Nagabhushana Reddy, In Re: 1950-2 Mad LJ 278 : (AIR 1951 Mad 249), Rajamannar C.J and Somasundaram, J., have held that under Art. 226 of the Constitution of India a writ could be issued originally only against inferior courts, tribunals or bodies, entrusted by law of the land with powers affecting the rights of parties. In Indian Tobacco Corporation v. State of Madras, 1954-1 Mad LJ 429 : (AIR 1954 Mad 549) Rajamannar, C.J and Venkatarama Ayyar, J., have held that the writ of Mandamus could only be issued to compel the performance of duties of a public nature and it will not be issued for private purpose, namely, the enforcement of a mere private right arising from a contract or otherwise. In Sohanlal v. Union of India, 1957 SCJ 489 : ((S) AIR 1957 SC 529) it has been held by the Supreme Court that normally a writ of mandamus does not issue or an order in the nature of mandamus is not made against a private individual.
9. So far as the writ of certiorari is concerned, its nature and the conditions under which it is governed have been stated by Atkin, Lord Justice, in R. v. Electricity Commissioners, (1924) 1 K.B 171 in a passage which has since become a classic in these terms:
“Whenever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs”.
10. The Supreme Court of India and the other Indian High Courts have generally accepted the above test, as further explained by Slessor, Lord Justice in King v. London County Council, 1931-1921 KB 215 as the correct exposition of the circumstances under which a writ of certiorari could issue. It is unnecessary to multiply authorities on a question so well known and sustained by highest judicial opinion.
11. The question is whether the Hindustan Shipyard Limited could be regarded as a body having legal authority to determine question affecting the rights of subjects and having the duty to act judicially or performing quasi-judicial functions. It is not in dispute that it is a company registered under the Indian Company's Act. But what is contended for by the petitioner is that the Government of India have subscribed 80 per cent of the share capital, that 10 of the 13 Directors are nominated by the Government of India and that large subsidies and advances are being given by the Union Government from out of the Shipping Development Fund and, therefore, the Government of India must be regarded as having a controlling and administrative authority over the respondent-company. These circumstances will not, in my opinion, make any difference to the jural character of the respondent company. It is still a limited liability company and can in no sense be called a judicial or quasi-judicial tribunal or public or statutory authority discharging judicial or quasi-judicial functions. In Ram Kishun v. Central Bank of India Ltd., AIR 1958 All 413 the Allahabad High Court held that where disciplinary action was taken against an employee of the Central Bank a writ of certiorari could not be issued against the Central Bank, as it was not a judicial body or a tribunal. I agree with the principle of this decision.
12. Reliance was placed upon a decision of the Madras High Court in Sekkilar v. Krishnamurthi, (1951) 2 Mad LJ 568 : (AIR 1952 Mad 151). In that case a student of the college was expelled from the hostel. He filed a petition under Art. 226 for the issue of a writ of mandamus. On behalf of the College an argument was advanced that a writ could not issue to the college as it was not a public authority. Subbarao, J., held that the college was affiliated to the University of Madras and was being governed and administered under the various statutes, rules and regulations of that University and that it was also administered in accordance with the scheme of administration settled by the High Court of Madras. In these circumstances, the learned Judge held that the principal could be regarded as quasi-judicial authority though on the merits the learned Judge took the view that no interference was called for. I am unable to discover how this case would support the contention of the petitioner.
13. The University is a public authority, because it is the creature of a statute and a college which is an integral part of the University may partake of that character. But that reasoning cannot apply to the case of an incorporated company with share capital of its own and whose main intention is earning profits to be divided amongst the share-holders; It is neither a creature of a statute, nor a public authority, charged with the functions of adjudicating upon the rights of the subjects. Reference was also made to a decision of the Madras High Court in the University Of Madras v. Shantha Bai, (1953) 2 Mad LJ 287 : (AIR 1954 Mad 67). The facts in that case were that a lady student applied for admission into an affiliated college. It was refused by the Principal on the ground that woman student could not be admitted into the college as there was no special sanction of the Syndicate. The student thereupon filed an application for the issue of a writ of Mandamus and it was contended that the action of the Principal was in violation of Art. 15(1) of the Constitution of India. In that connection the main question that fell to be decided by the learned Judge was whether the University was ‘the State’ or local or other authority within the meaning of Art. 12 of the Constitution.
14. It was held that the University was not a State or local or other authority. In the course of the judgment a distinction was drawn between ‘state maintained’ institutions, to which the provisions of Part III of the Constitution would apply, and to ‘state aided’ institutions, to which the said articles would not apply. I do not think that this decision has any direct bearing on the facts of this case for two reasons: firstly, the respondent-company is not a state-maintained institution, and secondly, no question of infringement of fundamental rights arises in this case.
15. In the view I have taken that a writ of certiorari cannot be directed against the respondent company, it is not necessary for me to consider, whether the order that is sought to be quashed in this petition, is in violation of sub-rule 1 of R. 24 of the Officers' Service Rules, or whether such a violation could give the petitioner any cause of action at law.
16. The petition fails and is dismissed.
KC/R.G.D
17. Petition dismissed.
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